10.5.3  Failure to achieve Completion

(a)  An Event of Default (allowing the private party a cure period) will occur if: 30

(i)  the private party fails to reach Completion by the Date for Completion; or

(ii)  an independent expert engaged by government considers (on or after a specified period after the site is made available to the private party)31 that there is no reasonable prospect that the private party will achieve Completion by the Date for Completion.

(b)  Further, if the facility does not become available by the Sunset Date, or if an independent expert determines (on or after a specified period after the site is made available to the private party) that there is no reasonable prospect that the private party will achieve Completion by the Sunset Date,32 this will constitute a Default Termination Event.

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30  See section 24.1(c) of Chapter 24 (Default). Where a two-staged Completion process is used, government will usually treat a failure to reach Technical Completion by the Date for Technical Completion as a separate Event of Default. However, it may consider waiving this requirement (thereby limiting the Events of Default to a failure to meet Commercial Acceptance by the Date for Commercial Acceptance) in circumstances where achievement of Commercial Acceptance is conditional on the private party having provided government with a sufficient period (determined by government on a project-specific basis) to transition into and test the functionality of the facility.

31  This period will be determined on a project-specific basis having regard to the expected construction period.

32  The independent expert will be prevented from making such determination if the private party is complying with an agreed cure plan arising from such a default.