43.1  Retendering Election251

A


43.1.1  Subject to clause 43.1.2 (Retendering Election), on termination of this Agreement under clause 37.4 (Termination on Contractor Default) subject to clauses 43.1.2 and 43.1.3 (Retendering Election), the Authority shall be entitled to:

(a)  retender the provision of the Project in accordance with clause 43.2 (Retendering Procedure); or

(b)  require an expert determination in accordance with clause 43.3 (No Retendering Procedure).

43.1.2  The Authority shall be entitled to retender the provision of the Project in accordance with clause 43.2 (Retendering Procedure) if the Authority notifies the Contractor on or before the date falling twenty (20) Business Days after the Termination Date that it intends to retender and there is a Liquid Market and either:

(a)  the Senior Lenders have not exercised their rights to step in under clause 5 of the Direct Agreement; or

(b)  the Contractor or the Senior Lenders have not procured the transfer of the Contractor's rights and liabilities under this Agreement to a Suitable Substitute Contractor and have failed to use all reasonable efforts to do so.

but otherwise the Authority shall not be entitled to re-tender the provision of the Services and clause 43.3 shall apply.  

43.1.3  The Authority shall not be entitled to elect to retender the provision of the Services in accordance with clause 43.2 (Retendering Procedure) if, having proposed a Suitable Substitute Contractor and provided all necessary information which the Secretary of State requires in order to consider approval for that person under Section 27, the Contractor or Senior Lenders has demonstrated to the Authority that the reason for the failure to transfer the Contractor's rights and liabilities under the Agreement is that the Suitable Substitute Contractor has not obtained all consents from the Secretary of State as required under Section 27 of the Housing Act 1985 (as amended) for either itself or any sub-contractor within the earlier of:

(a)  the expiry of any Moratorium Period; and

(b)  [  ] months from the date of the application to the Secretary of State accompanied by all required information necessary to obtain such consent252.




__________________________________________________________________________________________

251 Annex 1 Schedule D contains some specimen drafting for non-HRA projects where the Contractor owns and operates the Assets and the project is corporate financed.

252 This Sub-clause is relevant to HRA projects