34.8.1 Required drafting (including definitions) is as follows:
34 Refinancing
34.1 The Contractor shall obtain the Authority's prior written consent to any Qualifying Refinancing and both the Authority and the Contractor shall at all times act in good faith with respect to any Refinancing.612
34.2 The Authority shall be entitled to receive
(a) a 50 per cent share of any Refinancing Gain arising from a Qualifying Refinancing, in respect of any Refinancing Gain up to (when considered in aggregate with all previous Qualifying Refinancings) a Refinancing Gain of £1 million;
(b) a 60 per cent share of any further Refinancing Gain arising from a Qualifying Refinancing in respect of any Refinancing Gain up to (when considered in aggregate with all previous Qualifying Refinancings) a Refinancing Gain of £3 million, and also
(c) A 70 per cent share of any other Refinancing Gain arising from a Qualifying Refinancing.
34.3 The Authority shall not withhold or delay its consent to a Qualifying Refinancing to obtain a greater share of the Refinancing Gain than that specified in clause 34.2.613
34.4 The Contractor shall promptly provide the Authority with full details of any proposed Qualifying Refinancing, including a copy of the proposed financial model relating to it (if any) and the basis for the assumptions used in the proposed financial model. The Authority shall (before, during and at any time after any Refinancing) have unrestricted rights of audit over any financial model and documentation (including any aspect of the calculation of the Refinancing Gain) used in connection with that Refinancing (whether that Refinancing is a Qualifying Refinancing or not).
34.5 The Authority shall have the right to elect to receive its share of any Refinancing Gain as:
(a) a single payment in an amount less than or equal to any Distribution614 made on or about the date of the Refinancing;
(b) a reduction in the Unitary Charge over the remaining term of the Contract; or
(c) a combination of any of the above.
34.6 The Authority and the Contractor will negotiate in good faith to agree the basis and method of calculation of the Refinancing Gain and payment of the Authority's share of the Refinancing Gain (taking into account how the Authority has elected to receive its share of the Refinancing Gain under Clause 34.5 above). If the parties fail to agree the basis and method of calculation of the Refinancing Gain or the payment of the Authority's share, the dispute shall be determined in accordance with Clause 28 (Dispute Resolution).615
34.7 The Refinancing Gain shall be calculated after taking into account the reasonable and proper professional costs that each party directly incurs in relation to the Qualifying Refinancing and on the basis that all reasonable and proper professional costs incurred by the Authority will be paid to the Authority by the Contractor within 28 days of any Qualifying Refinancing.
34.8 Without prejudice to the other provisions of this Clause 34, the Contractor shall (a) notify the Authority of all Notifiable Financings on becoming aware of the same and again when they are entered into and provide full details of the same and (b) include a provision in the Financing Agreements whereby it is entitled to be informed of any proposals which the Senior Lenders may have to refinance the Financing Agreements.
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612 The Authority may terminate the Contract for a wilful breach of this clause or of clause 34.9. In such circumstances, the amount of compensation payable to the Contractor shall be the same as that paid to the Contractor if the Contract is terminated under Clause 21.4 (Termination on Corrupt Gifts or Fraud). See Section 21.6 (Termination for Breach of the Refinancing Provisions).
613 Please see Clause 22.3 (Changes to Financing Agreements and Project Documents) in relation to requests made to the Authority for increases in its termination liabilities.
614 Any Distributions projected to be made after the Refinancing will be net of any payment to be made to the Authority on or about the date of the Refinancing. If a Distribution is made on or about the date of the Refinancing which would have been made if the Refinancing had not occurred, the amount of that Distribution will not be taken into account for the purposes of paragraph (a).
615 Any dispute should be determined under the dispute resolution process (see Section 28.2).