1. In this Section B of Part 29 of the Schedule:
means, on any given date, an amount equal to the maximum amount of compensation on termination that would be payable by the Board to Project Co in terms of Part 23 of the Schedule (Compensation on Termination);
means both the New Compensation Amount Estimate and the Original Compensation Amount Estimate;
means any Quotation other than a Non-Compliant Quotation;
means the document(s) numbered [#] in Part [#] of the Schedule;
means (a) the Senior Funding Agreements; (b) the Junior Funding Agreements; and (c) [any other agreement that the Parties agree to be material for the purposes of the financing of the Project - TBC at financial close];
means (a) this Agreement; (b) the Construction Contract; (c) the Service Contracts; (d) the Senior Lender Collateral Warranties; (e) the Contractor Guarantees; (f) the Service Provider Guarantees; and (g) [any other agreement that the Parties agree to be material to the implementation of the Project (other than the Key Funding Documents) - TBC at financial close];
means any Quotation which: (a) could result in a Compensation Amount in excess of the New Compensation Amount Estimate; and/or (b) requires the material amendment to or variation of any Key Project Document or any waiver of any material term of any Key Project Document (save to the extent detailed in the Information Memorandum);
"Optimal Compliant Refinancing"
means the Optimal Refinancing excluding any Structured Refinancing proposed in terms of Non-Compliant Quotations;
means the Structured Refinancing proposed in terms of a Quotation which gives rise to the largest Refinancing Gain;
means
(a) in relation to the Senior Debt:
(i) one or more Qualifying Banks;
(ii) the Senior Funders (or one or any of them); and/or
(iii) any other person or persons approved by the Board (acting reasonably);
and/or;
(b) in relation to the Junior Debt:
(i) one or more Qualifying Banks;
(ii) the Junior Funders (or one or any of them); and/or
(iii) any other person or persons approved by the Board (acting reasonably);
means in respect of a prospective Structured Refinancing, an offer from a Qualifying Tenderer or Qualifying Tenderers in response to the Information Memorandum setting out all information relative to that Qualifying Tenderer's proposed involvement in the Structured Refinancing, including (without limitation):
(a) the proposed amount of senior debt and/or junior debt to be advanced;
(b) the proposed margin, and fees payable in relation to the senior debt to be advanced and/or the proposed rate of interest applicable to, and fees payable in relation to, the junior debt to be advanced;
(c) any commitment, arrangement or other fees payable as a result of effecting the Structured Refinancing;
(d) any reserving requirements under the proposed new funding documentation;
(e) the proposed repayment profile of the senior debt and/or the junior debt;
(f) hedging arrangements;
(g) unless the Board has previously indicated in writing that it does not require this information or where the Structured Refinancing proposed does not give rise to a Refinancing Gain in a lump sum, details of the level of the Monthly Service Payment that would be payable following the proposed Structured Refinancing if the Board's share of the prospective Refinancing Gain arising as a result of the proposed Structured Refinancing were to be applied in reduction of the level of Monthly Service Payment payable;
"Senior Funder Collateral Warranties"
means the document(s) numbered [#] in Part [#] of Schedule [#];
means the document(s) numbered [#] in Part [#] of Schedule [#].
2.1 If Project Co intends to carry out a Structured Refinancing it shall follow the procedure set out in this Section B of Part 29 of the Schedule.
2.2 Any proposed Structured Refinancing may include the refinancing of loans made to Project Co in terms of the Senior Funding Agreements (a "Senior Refinancing") and/or to the refinancing of loans made to Project Co in terms of the Junior Funding Agreements (a "Junior Refinancing").
2.3 If the proposed Qualifying Refinancing has been required by the Independent Director pursuant to Article [#] of the Articles of Association, Project Co will propose a Senior Refinancing and/or Junior Refinancing as so directed by the Independent Director.
3.1 In advance of commencing the process to implement a Structured Refinancing in terms of paragraphs 4 to 11 the Parties shall agree a budget to cover the proper and reasonable costs of such Structured Refinancing.
3.2 If no agreement is reached regarding a budget for the proper and reasonable costs of such Structured Refinancing, the Independent Director shall determine the budget, after receiving advice from an appropriate firm with substantial experience of refinancing PPP projects.
3.3 If the Board has agreed to meet the costs of implementing the Structured Refinancing and such Structured Refinancing is subsequently not completed the costs and expenses reasonably and properly incurred by Project Co in connection with such proposed Structured Refinancing (the "Refinancing Costs") shall first (subject to a maximum of the amount set out in the agreed budget) be met out of any Surpluses that have been generated (but not yet paid to the Charity) by Project Co.
3.4 To the extent that such Surpluses are not sufficient to meet the Refinancing Costs in full, the balance of the Refinancing Costs which have been met by Project Co shall be paid by the Board to Project Co within 20 Business Days of a written demand therefor by Project Co, supported by all such information as is reasonable to evidence the amount of such Refinancing Costs. Notwithstanding the foregoing, in the event that there is a subsequent successful Refinancing, any such Refinancing Costs will be reimbursed to the Board prior to calculating any Refinancing Gain from such subsequent Refinancing.
4 Project Co shall agree with the Board the basis and methodology upon which it will calculate its estimate of the maximum Compensation Amount that could arise if the proposed Structured Refinancing were to take place and the maximum Compensation Amount that could have arisen if the proposed Structured Refinancing did not take place (the "Compensation Calculations").
5 Following agreement of the Compensation Calculations, Project Co shall prepare an information memorandum in respect of the proposed Structured Refinancing setting out the following information:
5.1 an executive summary of the structure of the Project;
5.2 a detailed summary of each Key Project Document and each Key Funding Document;
5.3 details of the ownership, organisation and management of Project Co;
5.4 financial information regarding Project Co, the Service Provider(s), the Contractor (but only to the extent such information memorandum is being prepared prior to the second anniversary of the Actual Completion Date), the Junior Funders including details of experience in projects procured under the PFI, the nature and extent of involvement in the Project, and any parent company or other credit support of their respective obligations under the relevant Key Project Document;
5.5 a detailed Project description;
5.6 a risk matrix showing the risk allocation between Project Co, the Board, the Contractor(s) and the Service Provider(s) in relation to the major risks involved in the Project;
5.7 an indicative term sheet in relation to the senior debt terms and the junior debt terms sought to be achieved as a result of the proposed Structured Refinancing to be effected;
5.8 any amendments required to the Key Project Documents; and
5.9 if the Board has made that decision at the time of the preparation of such information memorandum, whether or not the Board intends to take its share of the Refinancing Gain arising from the proposed Structured Refinancing as a lump sum or as a reduction in the Monthly Service Payment over the remaining term of the Agreement (or as a combination of both options)
(the "Information Memorandum").
6 Following preparation of the Information Memorandum Project Co shall issue the Information Memorandum to the Board for consideration together with Project Co's estimate (based, in the case of paragraphs 6.1 & 6.2, upon the Compensation Calculations) of the following:
6.1 the maximum Compensation Amount that could arise if the proposed Structured Refinancing were to take place to which the Information Memorandum relates based upon the indicative term sheets referred to in paragraph 5.7 (the "New Compensation Amount Estimate");
6.2 the maximum Compensation Amount that could have arisen if the Structured Refinancing did not take place (the "Original Compensation Amount Estimate");
6.3 the Refinancing Gain that would arise if the Structured Refinancing to which the Information Memorandum relates were to take place; and
6.4 unless the Board has previously indicated in writing that it does not require this information or where the Structured Refinancing proposed does not give rise to a Refinancing Gain in a lump sum, the level of the Monthly Service Payment that would be payable if the Board's share of the prospective Refinancing Gain referred to in paragraph 6.3 were to be applied in reduction of the level of Monthly Service Payment payable.
7 Within 20 Business Days of receipt of the Information Memorandum and the Compensation Estimates the Board shall notify Project Co whether or not it agrees to those terms of the Information Memorandum listed in paragraphs 5.7 and 5.8 and the New Compensation Amount Estimate. If the Board does not so agree the Board and Project Co shall within 10 Business Days of the Board's notification to that effect meet with a view to discussing and agreeing those terms of the Information Memorandum listed in paragraphs 5.7 and 5.8 and the New Compensation Amount Estimate.
8 Following agreement of the Information Memorandum and the New Compensation Amount Estimate, Project Co shall seek to obtain Quotations from Qualifying Tenderers in relation to the proposed Structured Refinancing based upon the terms of the Information Memorandum and shall stipulate a date by which such Quotations must be returned to Project Co, being no earlier than 20 Business Days and no later than 40 Business Days, following issue of the Information Memorandum (the "Response Period"). Project Co shall use reasonable endeavours to obtain not less than 3 Quotations from such persons from whom it would be reasonable to obtain Quotations (in each case having regard to the terms of the Funding Agreements, the proposed term sheets for the Structured Refinancing set out in the Information Memorandum, the financial markets relevant to the proposed Structured Refinancing and any other relevant factors affecting the Project at such time).
9 At the end of the Response Period if Project Co has received Quotations, Project Co shall evaluate each such Quotation to determine which of the Quotations will result in the Optimal Refinancing and which will result in the Optimal Compliant Refinancing.
10 Within 5 Business Days of determination by Project Co which Quotation will result in the Optimal Refinancing and which will result in the Optimal Compliant Refinancing, Project Co shall provide to the Board copies of each of the Quotations which have been evaluated by Project Co together with a report identifying the Optimal Refinancing and the Optimal Compliant Refinancing. In the event that the Board does not agree with Project Co's calculation of the Optimal Refinancing, Project Co's calculation of the Optimal Compliant Refinancing or Project Co's opinion as to whether a Quotation is a Compliant Quotation or a Non-Compliant Quotation, such matter shall be determined in accordance with Part 26 of the Schedule (Dispute Resolution Procedure).
11 Within 20 Business Days of agreement or determination of the Optimal Refinancing and the Optimal Compliant Refinancing, the Board shall notify in writing to Project Co which, if any, of the Quotations provided to it by Project Co it wishes to be implemented (the "Selected Refinancing") and the Board's consent in terms of paragraph 1 of Section A of Part 29 of the Schedule shall be deemed to be given.
12 Project Co shall use all reasonable endeavours to implement the Selected Refinancing.