Capex Plan. Notwithstanding anything to the contrary in Section 6.1, from and after the date hereof until the Closing, Seller Parent shall, and shall cause the other Sellers and the Transferred Entities to, make Capex relating to the Business as described in, and in accordance with (including as to amount and timing), the Capex Plan; provided, however, that Seller Parent and its Affiliates will be entitled to deviate from the Capex Plan only if, in Seller Parent’s reasonable judgment, and upon prior written notice to Purchaser together with reasonable supporting documentation, increases or decreases in the amount and timing of any Capex to be made in accordance with the Capex Plan are required to maintain the long-term viability of the Business if Closing were to fail to occur. Seller Parent shall meet with Purchaser from time to time as Purchaser may reasonably request, upon reasonable advance notice and during regular business hours, to provide Purchaser with such information as Purchaser may reasonably request, with respect to the status of the Capex Plan. Without prejudice to the foregoing, if Capex actually incurred by the Business during the period beginning on January 1, 2013 and ending on December 31, 2013 (inclusive) is less than the 2013 Scheduled Capex Amount (the amount of such difference, a “2013 Capex Shortfall”), Seller Parent shall, or shall cause its Affiliates to, as applicable, incur capital expenditures in an amount equal to the 2013 Capex Shortfall as promptly as practicable (and in any event prior to Closing), and such additional capital expenditures, as and when made, shall be deemed to cure any such 2013 Capex Shortfall (but, for the avoidance of doubt, such additional capital expenditures shall not be deemed to be or be applied toward Spent Capex).
Capex Plan. 2. The Provider will provide to the Commission by 1 March 2010 a draft capital expenditure plan for the next 3 years from 1 July 2010 that meets the requirements of clause 5 of this Schedule (such plan, including each update, being the “Capex Plan”).
Capex Plan. (i) At the Closing, the Concessionaire shall deliver to the Authority a preliminary asset management plan for the System for the period running from the Closing until the first anniversary thereof which plan shall include the Major Capital Improvements and any other capital improvements that are necessary for the performance of the System Operations in accordance with the Operating Standards and Prudent Industry Practices during such period (the “First-Year Capex Plan”). Following the Closing Date, the Concessionaire shall develop, in consultation with the Authority, an initial five-year asset management plan for the System which shall include the Major Capital Improvements and any other capital improvements that are necessary for the performance of the System Operations in accordance with the Operating Standards and Prudent Industry Practices (the “Five-Year Capex Plan” and, collectively with the First-Year Capex Plan, the “Capex Plan”). The Five-Year Capex Plan shall initially include the Major Capital Improvements, as needed. A pro forma example of an initial Five-Year Capex Plan is attached hereto as Schedule 7. Implementation and timing of the works described in the Capex Plan shall be carried out in accordance with the Operating Standards based upon the asset management programs to be developed in accordance with the Operating Standards. The Capex Plan shall: (A) be developed on the basis of regulatory and industry standards pursuant to which assets are evaluated and catalogued based on condition, criticality, cost, risk of failure and consequence of failure; (B) prioritize maintenance and capital expenditures so as to extend the useful life of the System and the components thereof; and (C) include an outline of the work anticipated to be carried out and an estimate of the costs associated with such works. Each Capex Plan shall be considered by the Authority within 30 days of its submission and shall be subject to the Approval of the Authority, which Approval shall not be unreasonably conditioned, delayed or withheld.
