40.11  Risks that Become Uninsurable

If a risk usually covered by [Service Providers' all risks insurance, property damage insurance, delay in start up and business interruption insurance (but not loss of profits) or statutory insurances] (in each case a Required Insurance) becomes Uninsurable then:

(a)  the Service Provider shall notify the Authority within five (5) Business Days of the risk becoming Uninsurable; and

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

(i)  the risk being Uninsurable is not caused by the actions of the Service Provider or any sub-contractor of the Service Provider; and

(ii)  the Service Provider has demonstrated to the Authority that the Service Provider 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 Service Provider would in similar circumstances (in the absence of the type of relief envisaged by this clause 40.11) 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).