66.2  Risks Become Uninsurable

If a risk usually covered by construction all risks, material damage, third party liability, business interruption (but excluding loss of profits) or delay in start up (but excluding loss of profits), or statutory insurances, in each case required under this Agreement, becomes Uninsurable then:

66.2.1  the Contractor shall notify the Authority within five (5) Business Days of the risk becoming Uninsurable; and

66.2.2  if both parties agree, or it is determined in accordance with the Dispute Resolution Procedure, that the risk is Uninsurable and that:

(a)  the risk being Uninsurable is not caused by the actions, breaches, omissions or defaults of the Contractor or a sub-contractor; and

(b)  in respect of the risks specified in  clause 66.2 above, the Contractor has demonstrated to the Authority that the Contractor and a prudent board of directors of a company operating the same or substantially similar PFI businesses in the United Kingdom to that operated by the Contractor would in similar circumstances (in the absence of the type of relief envisaged by this clause) be acting reasonably and in the best interests of the company if they resolved to cease to operate such businesses as a result of that risk becoming Uninsurable, taking into account inter alia  (and without limitation) the likelihood of the Uninsurable risk occurring (if it has not already occurred), the financial consequences for such company if such Uninsurable risk did occur (or has occurred) and other mitigants against such consequences which may be available to such company,

then the parties shall meet to discuss the means by which the risk should be managed or shared (including considering the issue of self-insurance by either party).183

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183 In discussing this issue, each party shall consider the extent to which it may be deemed to be carrying out insurance business and whether it has the necessary powers and authorisations to do so.