23.6.2.1 Equity investors should acknowledge that their relationship with the Contractor renders them responsible for the Contractor's acts - the level of return they expect reflects the greater risks that equity holders accept.
23.6.2.2 Regardless of whether or not the Assets have any alternative use, the level of compensation payable on termination for breach of the refinancing provisions should be the same as the level proposed on a termination for corrupt gifts or fraud (see Clause 23.4.4 (Compensation on Termination for Corrupt Gifts and Fraud)).
Required drafting is as follows:
23.6.1 Termination by the Authority for Breach of the Refinancing Provisions
(a) If the Contractor wilfully breaches Clause 28 (Refinancing) then the Authority may terminate the Contract at any time on or before its Expiry Date by complying with its obligations under paragraphs (b) to (d) below.
(b) If the Authority wishes to terminate the Contract under this Clause, it must give notice to the Contractor stating:
(i) that the Authority is terminating the Contract under this Clause 23.6.1 (Termination by the Authority for breach of the Refinancing provisions);
(ii) that the Contract will terminate on the date falling [30] days after the date of receipt of the notice; and
(iii) whether the Authority has chosen to exercise its option under paragraph (c) below.
(c) On termination, the Authority shall have the option to require the Contractor to transfer to the Authority all of its right, title and interest in and to the Assets.
(d) The Contract will terminate on the date falling [30] days after the date of service of the notice referred to in paragraph (b) above;
(e) The Contractor shall within thirty (30) days of the date of service of the notice referred to in paragraph (b) above, pay to the Authority an amount equal to the Lifecycle Surplus at that time.
23.6.2 Compensation on Termination for Breach of the Refinancing Provisions
On termination under Clause 23.6.1(d) above, the Authority shall pay, within thirty (30) days of the Notice Date following termination, to the Contractor an amount equal to the amount payable under Clause 23.4 (Termination on Corrupt Gifts and Fraud) in accordance with Section 24 (Calculation and Payment of Early Termination Payments).