(a) The specific events that will be categorised as Default Termination Events will be determined on a project by project basis but will typically include:
(i)
(ii) the private party wholly or substantially abandoning the works, the facility or the provision of the services, or displaying an intention to do so;
(iii) a Project Default;
(iv) a Persistent Breach;
(v) the occurrence of an Insolvency Event112 in relation to the private party;
(vi) the occurrence of an Insolvency Event in respect of any member of the private party group,113 or material sub-contractor or any guarantor, and that member of the private party group or guarantor is not replaced within a specified period114 of the Insolvency Event by a party which is reputable, solvent and has the resources and experience to perform its obligations under the relevant subcontracts or guarantee (as applicable);
(vii)
(viii) a breach of the change of ownership/control provisions115 of the project agreement in respect of private party:
(ix) Completion not having occurred by the Sunset Date, or an independent expert reasonably forming the view that the private party will not achieve Completion by the Sunset Date;
(x) an Illegality Event has occurred;
(xi) a specified cap or a specified percentage of the cap being reached in respect of any performance bonds or parent company guarantees provided to government as required under the project agreement, or any such bond or guarantee ceasing to be valid without, in each case, rectification or replacement within a specified period;
(xii) government directing the private party not to reinstate or repair damage where the relevant damage was caused by a private party default;
(xiii) where performance points accumulated over a fixed period (i.e. due to a series of Service Failures) exceed a specified level; and
(xiv) the private party suffering abatements over a specified number of consecutive months, which in value equate to an amount which is at or above a specified percentage of the total services fee.
(b) On certain projects government may also include additional Default Termination Events but only where this is warranted by the unique features of the relevant Project.116
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112 Cure periods will not be allowed for, other than in respect of an application for winding up.
113 See section 29.1 of Chapter 29 (Change of ownership/control) for what constitutes the private party group.
114 This is traditionally 60 business days.
115 See Chapter 29 (Change of ownership/control).
116 For example, the government may or may not opt to treat failure to insure (subject to section 23.4 of Chapter 23 (Insurance) on uninsurability) as a Termination Event, depending on the particular attributes, requirements and risks of the project.