1.1 If Project Co terminates this Agreement pursuant to Clause 45 (Board Events of Default) or the Board terminates this Agreement pursuant to Clause 46.2 (Voluntary Termination) or the Board exercises its right under Clause 36.23 the Board shall pay to Project Co the "Board Default Termination Sum"180" as set out in paragraph 1.2.
1.2 Subject to paragraphs 1.4 to 1.6 below the Board Default Termination Sum shall be an amount equal to the aggregate of:
(a) the Base Senior Debt Amount;
(b) Redundancy Payments and Sub-Contractor Losses; and EITHER;181
(c) [an amount which when taken together with:
(i) dividends (or other distributions) paid by Project Co on its share capital on or before the Termination Date; and
(ii) interest paid and principal repaid by Project Co on Junior Debt on or before the Termination Date182,
taking account of the actual timing of all such payments, gives a real internal rate of return on the share capital subscribed and Junior Debt advanced of [insert base case IRR183];] OR
(d) [the amount for which the share capital of Project Co and the Junior Debt could have been sold on an open market basis based on the Relevant Assumptions;] OR
(e) [all amounts shown in the [base case]184 as payable by Project Co from the Termination Date, either in dividends or other distributions on the share capital of Project Co or as payments of interest or repayments of principal on the Junior Debt, each amount discounted back at the [base case IRR for share capital or Junior Debt (as appropriate)] from the date on which it is shown to be payable in the [base case] to the Termination Date;]
LESS, to the extent it is a positive amount, the aggregate of without double counting in relation to the calculation of the Base Senior Debt Amount or the amounts below:
(f) the value of any right of Project Co to receive insurance proceeds (save where such insurance proceeds are held in the Insurance Proceeds Account and are to be applied in accordance with Clause 36.19 of this Agreement in reinstatement, restoration or replacement or, in the case of any third party legal liability or employer's liability, in satisfaction of the claim, demand, proceeding or liability) or sums due and payable from third parties (but only when received from third parties) but excluding any claims under any Sub-Contracts or claims against other third parties which have not been determined or have been determined but not yet paid provided that in such case Project Co shall assign any such rights and claims under the Sub-Contracts or claims against other third parties to the Board and give the Board reasonable assistance in prosecuting such claims;
(g) to the extent realised before the Invoice Date the market value of any other assets and rights of Project Co (other than those transferred to the Board pursuant to this Agreement) less liabilities of Project Co properly incurred in carrying out its obligations under this Agreement as at the Termination Date provided that no account should be taken of any liabilities and obligations of Project Co arising out of:
(i) agreements or arrangements entered into by Project Co to the extent that such agreements or arrangements were not entered into in connection with Project Co's obligations in relation to the Project; or
(ii) agreements or arrangements entered into by Project Co to the extent that such agreements or arrangements were not entered into in the ordinary course of business and on commercial arm's length terms; and
(h) amounts which the Board is entitled to set off pursuant to Clause 48.12 of this Agreement.
1.3 To the extent that such assets and rights referred to in paragraph 1.2(g) above are not realised and applied by the Invoice Date, Project Co shall on payment of the Board Default Termination Sum assign such assets and rights to the Board.
1.4 If the aggregate of the amounts referred to in paragraphs 1.2 (a) and (c) is less than the Revised Senior Debt Termination Amount, then the Board Default Termination Sum shall be increased so that it is equal to the aggregate of the Revised Senior Debt Termination Amount and the amount referred to in paragraph 1.2 (b) LESS the amounts referred to in paragraphs 1.2(f) to (h) above; provided always that (a) the amount referred to in paragraph 1.2 (b) shall only be paid to the extent that Project Co has demonstrated to the reasonable satisfaction of the Board that the amount will not be applied (in whole or in part) in payment of any [Distribution] and (b) if, at the time of termination, there are any Additional Permitted Borrowings outstanding, no Sub-Contractor Losses shall be paid in respect of any Sub Contract in circumstances where there is an event of default under such Sub-Contract which would entitle Project Co to terminate such Sub-Contract.
1.5 If a [Distribution] is made whilst any Additional Permitted Borrowing is outstanding and Project Co has wilfully, or through gross negligence failed to comply with its obligations under Clause 10.4.4 (a) of the Funders' Direct Agreement then in addition to the deduction of the [Distribution] made pursuant to paragraph (v) of the definition of Revised Senior Debt Termination Amount, the Board shall be entitled to set off the value of that [Distribution] a second time against the Board Default Termination Sum, provided that the amount of the Board Default Termination Sum shall never be less than the Revised Senior Debt Termination Amount.
1.6 If Project Co has wilfully or through gross negligence failed to comply with its obligations under Clause 10.4.4 (b) of the Funders' Direct Agreement and there has been an overstatement of the cash balances by Project Co as at that date which has caused the Board to reasonably believe that it would be required to pay a lesser sum at the Termination Date than it actually is required to pay under the terms of this Section A, then the Board Default Termination Sum shall be reduced by the amount of such overstatement (to the extent such overstatement is still applicable at the Termination Date), provided that the amount of the Board Default Termination Sum will never be less than the Revised Senior Debt Termination Amount.
1.7 The Board Default Termination Sum shall be payable in accordance with Section E of this Part 23 of the Schedule.
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180 This is the same level of compensation as is appropriate on voluntary termination by the Board. Consistency of approach avoids any incentive on the part of the Board to default.
181 Project Co should be required to state its preferred method of calculation of equity return at the time of its bid. It should choose between the level set out in the original base case, the market value at the time of termination and the original base case return from the Termination Date.
182 These amounts will take into account the initial investments of the shareholders.
183 This is the base case IRR set out in the most recent bid of Project Co.
184 This is the base case set out in the most recent bid of Project Co.