18.1 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 seeking to achieve the maximum sustainable profits available for distribution to the Charity and, provided that no Trigger Event would arise as a result and subject to the obligations and restrictions on the Company set out in the Funding Agreements, by distributing those profits to the Charity within [30] Business Days of [ ]15 (as each term is defined in the Project Agreement) (subject to the qualification that the B Director shall have power, with the prior written consent of the holder of the D Share, to postpone any payment to the Charity if he considers appropriate). To the fullest extent possible, the Company shall maximise those profits by virtue of the payments to the Charity being made as Gift Aid Payments.
18.2
18.2.1 Subject to Articles 18.6, 18.7 and 18.8, the Company shall, if required by the B Director, take such action as the B Director shall direct, subject to the obligations and restrictions of the Company set out in the Funding Agreements and subject to such action not placing any of the directors in breach of their fiduciary duties or any law, to refinance loans made to the Company in terms of the Funding Agreements, provided that the Company shall not be required to take such action if (a) the effect of such action would, or could reasonably be expected to, prejudice the performance of the Project in accordance with the Transaction Documents or (b) such action requires the consent of any third party and that third party has (despite the Company using all reasonable endeavours to obtain such consent) declined or failed to grant such consent. For the avoidance of doubt, nothing in these Articles shall fetter the discretion of (i) any member of the Company or (ii) any Affiliate of a member of the Company or (iii) any member of Hold Co or (iv) any Affiliate of any member of Hold Co or (v) the Health Board in taking any step directed towards protecting or advancing its interests (direct or indirect) as a party to any contract with the Company.
18.2.2 For the purposes of this Article 18.2:
18.2.2.1 an Affiliate of a member of the Company shall be deemed to have an interest as a party to a contract if that member is a party to that contract, and
18.2.2.2 an Affiliate of a member of Hold Co shall be deemed to have an interest as a party to a contract if that member is a party to that contract.
18.3 The Board may at any time after the first anniversary of the [Phase Completion Date]16, and, subject to Article 18.4, shall on any occasion thereafter that the B Director reasonably considers appropriate by reference to his perception of market conditions or other circumstances, commission a report from an appropriate firm of consultants with substantial experience in the field of project finance (including the sale and refinancing of PFI/PPP projects) for the purpose of identifying opportunities for refinancing.
18.4 The Board shall not be required to commission a report of the nature referred to in Article 18.3 more frequently than once in a rolling twelve month period.
18.5 The question of which firm to appoint in pursuance of Article 18.3 shall be determined by the Board on the recommendation of the B Director or, if the Board fail to agree on which firm to appoint, shall be determined by the B Director acting alone. If the Board fail to proceed with instructing the relevant report, 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 Board (and/or his own decisions, if the Board failed to agree) in respect of the identity of the firm to be appointed.
18.6 The B Director shall not issue a direction pursuant to Article 18.2 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).
18.7 The B Director shall consult regularly with the A Directors prior to issuing a direction under Article 18.2 and have due and proper regard to any comments received from the A Directors in relation to the proposed refinancing. Further, the B Director shall not direct the Company to implement a refinancing where the Consultants' Appraisal advises that (on an assessment of the terms of the proposed refinancing and of historic and anticipated conditions in the market for the refinancing of PFI/PPP loans and the refinancing/sale of PFI/PPP subordinated debt investments) it would not be appropriate for the Company to undertake the refinancing at that time.
18.8 Following the issue of a direction under Article 18.2, the Company shall pursue implementation of the proposed refinancing in accordance with the B Director's direction (and on the basis that Article 11.12 shall apply) and in accordance with the relevant provisions in the Project Agreement (the latter taking precedence over the former), unless the members holding the A Shares and the D Share resolve not to pursue a refinancing notwithstanding a direction from the B Director.
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15 Boards should consider the frequency with which Charitable Donations should be made. For example, Boards may wish such payments to be made at the end of each Contract Year, or to align payments with debt repayments (e.g. on a six-monthly basis).
16 This date should correspond to completion of the relevant facilities (and may depend on phasing of the Project).