3.1 The Directors will be considered to be acting in the way most likely to promote the success of the Company for the benefit of the members as a whole by
3.1.1 seeking to achieve the maximum sustainable profits available for making Surplus Payments; and
3.1.2 provided that no Trigger Event would arise as a result, and subject to the obligations and restrictions on the Company set out in the Senior Funding Agreements and the Subordinated Funding Agreements, by paying to the Authority (or such other party as the Authority may, in its absolute discretion, direct) the Surplus available as at each Surplus Payment Date within 30 Business Days of the relevant Surplus Payment Date.
3.2 With reference to Article [3.1.2], the B Director shall have the power to postpone any such payment if he considers it appropriate to do so.
3.3 If the B Director (acting reasonably) considers that there are funding terms generally available in the market which would be more favourable than those reflected in the Funding Agreements, the B Director may issue a notice in Writing to the Company
3.3.1 setting out in reasonable detail the grounds upon which the B Director believes such funding terms to be available; and
3.3.2 requiring the Company to request potential funders to provide terms for a potential Refinancing
(a "Refinancing Notice").
3.4 The A Directors and the B Director shall meet to discuss the Refinancing Notice within 28 (twenty-eight) days and shall consider at that meeting the evidence available regarding the availability of funding terms for a potential Refinancing.
3.5 The B Director shall be entitled to withdraw a Refinancing Notice at any time.
3.6 If the B Director serves a Refinancing Notice then (unless and until the Refinancing Notice is withdrawn by the B Director pursuant to Article [3.5]) the Company shall:
3.6.1 act promptly, diligently and in good faith with respect to the potential Refinancing; and
3.6.2 subject to Article [3.7] use all reasonable endeavours to obtain the most favourable available terms from existing and/or new lenders for any potential Refinancing;
and, as soon as reasonably practicable after receipt of the Refinancing Notice,
3.6.3 either:
(a) provide to the B Director (copied to the B Shareholder) (i) full details of the proposed Refinancing, including a financial model and the basis for the assumptions used in the financial model and evidence to the reasonable satisfaction of the B Director that these assumptions represent the most favourable available terms for the potential Refinancing on the basis set out in Article [3.6.2] and (ii) initial drafts of any changes to the Agreement (including any adjustments in relation to potential compensation on termination) which might be required to give effect to the proposed Refinancing; or
(b) if the Company (acting reasonably) believes that it is not possible to obtain funding terms which are more favourable than those reflected in the Funding Agreements in accordance with the preceding requirements of this Article [3.6], provide evidence to the reasonable satisfaction of the B Director for such belief along with evidence to the reasonable satisfaction of the B Director that the Company has complied with its obligations under the preceding provisions of this Article [3.6].
3.7 With reference to Article [3.6.2] the Company:
3.7.1 need use its reasonable endeavours to obtain terms from existing and/or new lenders which would be likely to generate only a positive Refinancing Gain after the deduction of costs in accordance with the provisions of [paragraph 7 of part 23] of the schedule to the Agreement; and
3.7.2 need not provide, pursuant to Article [3.6.3(a)], details of any Refinancing which a prudent board of directors of a company operating the same business in the United Kingdom as that operated by the Company, in similar circumstances, would not consider to be in the best interests of that company.
3.8 If the B Director (acting reasonably) considers that the Company is failing to use reasonable endeavours to progress and complete the matters contemplated in Article [3.6], the B Director (acting alone) shall have power to instruct professional advisers and/or take such other steps as the B Director may reasonably consider appropriate (in each case, in name of the Company and at the Company's expense) to perform the obligations of the Company under that Article.
3.9 Following receipt of the relevant evidence under paragraph (a) or (b) of Article [3.6.3], the B Director shall (with the prior written consent of the B Shareholder and subject to Article [3.12] below) either:
3.9.1 instruct the Company to implement the proposed Refinancing in accordance with Article [Error! Reference source not found.]; or
3.9.2 instruct the Company to discontinue work in relation to the proposed Refinancing.
3.10 If the B Director is not satisfied (acting reasonably):
3.10.1 that the terms reflected in the financial model provided to him in pursuance of paragraph (a) of Article [3.6.3]represent the most favourable available terms for potential Refinancing; or (as the case may be)
3.10.2 that it is not possible to obtain funding terms which are more favourable than those reflected in the Funding Agreements in accordance with the requirements of Article [3.6],
the B Director (acting alone) shall have power to instruct professional advisers and/or take such other steps as the B Director may reasonably consider appropriate (in each case, in name of the Company and at the Company's expense) to take the steps contemplated in Articles [3.6.1to 3.6.3] and Article [3.9] shall then apply in respect of the evidence which is provided to him (on completion of those steps) under paragraph (a) or (b) of Article [3.6.3].
3.11 If the B Director instructs the Company to implement the proposed Refinancing
3.11.1 the Company shall as soon as reasonably practicable use all reasonable endeavours to procure that such proposed Refinancing is implemented;
3.11.2 such proposed Refinancing shall be deemed to be a Qualifying Refinancing; and
3.11.3 the provisions of [part 23] of the schedule to the Agreement shall apply (including, for the avoidance of doubt, the requirement to obtain the prior written consent of the Authority in accordance with [paragraph 1 of part 23] of the schedule to the Agreement).
3.12 The B Director shall be entitled to issue a Refinancing Notice under Article [3.3] at any time, but not more than once in any two-year period. For the avoidance of doubt, a Refinancing Notice that has been withdrawn under Article [3.5] will be taken to have been issued for the purpose of this Article [3.12].
3.13 Subject to Articles [3.19 to 3.21], the Company shall take such action as the B Director may direct to secure cost efficiencies or otherwise increase the net financial performance of the Company, provided that no Trigger Event would arise as a result and subject to the obligations and restrictions on the Company set out in the Senior Funding Agreements and/or the Subordinated Funding Agreements.
3.14 For the avoidance of doubt, the provisions of Article [3.13] and Articles [3.15 to 3.21] shall not apply in relation to any action to increase the net financial performance of the Company through Refinancing (which shall be governed by the provisions of Articles [3.3 to 3.12]).
3.15 The Company shall not be required to take any action of the nature referred to in Article [3.13]if:
3.15.1 the effect of such action would, or could reasonably be expected to, prejudice the performance of the Project in accordance with the Transaction Documents; and/or
3.15.2 such action requires the consent of any third party and that third party has declined or failed to grant such consent (despite the Company using all reasonable endeavours to obtain such consent).
3.16 The Company shall (subject to Article [3.17]) commission, at the request of the B Director from time to time, a report from an appropriate firm of consultants with substantial experience in the field of project finance, identifying any opportunities for possible cost efficiencies and/or other methods of increasing the net financial performance of the Company.
3.17 The Company shall not be required to commission any such report requested by the B Director in pursuance of Article [3.16]:
3.17.1 more frequently than once in any rolling 12 month period ; or
3.17.2 unless the B Shareholder issues to the Company an undertaking in Writing, agreeing to meet the fees of the consultants (net of any VAT recoverable by the Company) and any increased remuneration due to the B Director under Article [10.2].
3.18 The question of which firm to appoint in pursuance of Article [3.16], and the remit to be given to the consultants, on each occasion shall be determined by the Directors on the recommendation of the B Director or, if the Directors fail to agree on which firm to appoint and/or any aspect of the remit, shall be determined by the B Director acting alone. If the Directors fail to proceed with instructing the relevant report within a reasonable period, the B Director, acting alone, will have power to instruct any such report on behalf of the Company providing that in doing so he is giving effect to the decisions of the Directors (and/or his own decisions, if the Directors failed to agree) in respect of the identity of the firm to be appointed and the remit to be given to that firm.
3.19 The B Director shall not issue a direction referred to in Article [3.13] which is inconsistent with the content of the most recent Consultants' Appraisal; and any such direction may be issued only within 6 months of completion of that Consultants' Appraisal.
3.20 The B Director shall, in directing the Company to take any action under Article [3.13], consult regularly with the A Directors prior to issuing such a direction; and shall have due and proper regard to any comments received from the A Directors in relation to the proposed course of action.
3.21 Following the issue of a direction under Article [3.13], the Company shall (subject to Article [3.22]) pursue the implementation of the course of action specified in that direction, in accordance with
3.21.1 the B Director's direction (and on the basis that Article [6.12] shall apply); and
3.21.2 the relevant provisions of the Agreement (the latter taking precedence over the former).
3.22 The Company's obligations under Article [3.21] shall not apply if the B Shareholder directs the Company not to proceed with the course of action specified in the relevant direction from the B Director.
3.23 If the B Shareholder meets the fees of the firm of consultants in pursuance of an undertaking issued pursuant to Article [3.16] and any increased remuneration due to the B Director under Article [10.2] and the Company has implemented any measures identified in the relevant Consultants' Appraisal for increasing the net financial performance of the Company, then the Company shall monitor the net savings thereby achieved and shall reimburse the B Shareholder in respect of the fees and increased remuneration met by the B Shareholder as soon as the amount of the net saving equates to the level of such fees and remuneration and any such reimbursement shall be treated as a Surplus Payment pursuant to the Agreed Order of Priorities.