38.9 Authority Right to Request Refinancing

38.9.1 If the Authority (acting reasonably) considers the funding terms generally available in the market to be more favourable than those reflected in the Financing Agreements, the Authority may, by notice in writing to the Contractor, require the Contractor to request potential funders to provide terms for a potential Refinancing (a Refinancing Notice).

38.9.2 The Refinancing Notice shall set out in reasonable detail the grounds upon which the Authority believes such funding terms to be available. The Contractor and the Authority shall meet to discuss the Refinancing Notice within twenty eight (28) Business Days. Such a meeting will consider the evidence available to both parties about the availability of funding terms for a potential Refinancing. The Authority shall be entitled to withdraw the Refinancing Notice at or before such a meeting, or within ten (10) Business Days following the meeting.

38.9.3 If the Authority serves a Refinancing Notice which is not withdrawn pursuant to clause 38.9.2, then the Contractor shall:

(a) act promptly, diligently and in good faith with respect to the potential Refinancing;

(b) use all reasonable endeavours to obtain the most favourable available terms from existing and/or new lenders for any potential Refinancing (provided that the Contractor shall not be required to propose refinancing in a manner which a prudent board of directors of a company operating the same business in the United Kingdom to that operated by the Contractor, in similar circumstances, would not approve), for the avoidance of doubt also being terms which are likely to generate a positive Refinancing Gain after the deduction of costs in accordance with the provisions of clause 38.7; and

(i) as soon as reasonably practicable after receipt of the Refinancing Notice, provide to the Authority (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 Authority that these assumptions represent the most favourable available terms for the potential Refinancing on the basis set out in clause 38.9.3(b) above and (ii) initial drafts of any changes to this Agreement including in relation to potential compensation on termination which might be required to give effect to the proposed Refinancing; or

(ii) if the Contractor (acting reasonably) believes that it is not possible to obtain funding terms which are more favourable than those reflected in the Financing Agreements in accordance with the requirements of clause 38.9.3(b), provide evidence to the reasonable satisfaction of the Authority for such belief and evidence to the reasonable satisfaction of the Authority that the Contractor has complied with its obligations in clause 38.9.3(a) and clause 38.9.3(b);

38.9.4 Following receipt of the information referred to in clause 38.9.3(c)(i), the Authority shall (in its absolute discretion) either:

(a) instruct the Contractor to implement the proposed Refinancing; or

(b) instruct the Contractor to discontinue the proposed Refinancing;

provided that if the Authority reasonably considers that the requirements of clause 38.9.3(c)(i) have not been satisfied, the Authority may require the Contractor to satisfy its obligations under clause 38.9.3(c)(i) whereupon the provisions of clause 38.9.3 and clause 38.9.4 shall apply as if the Authority had served a Refinancing Notice.

38.9.5 If the Authority instructs the Contractor to implement the proposed Refinancing:

(a) the Contractor shall, as soon as reasonably practicable, use all reasonable endeavours to procure that such proposed Refinancing is implemented;

(b) such proposed Refinancing shall be deemed to be a Qualifying Refinancing; and

38.9.6 If:

(a) the Authority instructs the Contractor to discontinue the potential Refinancing pursuant to paragraph 38.9.4(b) ; or

(b) the requirements of paragraph 38.9.3(c)(ii) are satisfied

then, the Authority shall reimburse the Contractor for the reasonable and proper professional costs incurred by the Contractor in relation to the potential Refinancing, such costs to be paid to the Contractor by the Authority within twenty eight (28) Business Days after receipt of a valid invoice in respect of such amount.

38.9.7 Any costs paid pursuant to paragraph 38.9.6 above shall not include any internal management costs incurred by the Contractor except insofar as:

(a) it can be demonstrated to the reasonable satisfaction of the Authority that such costs have been incurred in place of professional costs which would in the normal course of such business have been paid to third parties; and

(b) the Authority has, by prior written agreement, approved the use of such internal management resource.

38.9.8 The Authority shall be entitled to issue a Refinancing Notice under paragraph 38.9.1 at any time but not more than once in any two (2) year period. For the avoidance of doubt, a Refinancing Notice that has been withdrawn under paragraph 38.9.2 has been issued for the purpose of this paragraph 38.9.8.