15.1 Possible Key Risk Events

(a) The private party will be entitled to Relief for certain events that have themselves a material adverse effect on the ability of the private party to either:

(i) pay the debt financiers the amounts due in accordance with the financing agreements (without regard to any acceleration); or

(ii) pay the equity investors their projected Equity Return.

(b) Possible Key Risk Events may occur in either the construction period or the operating term however, the majority of Possible Key Risk Events are typically events occurring during the operating term given the greater potential to cause a material adverse effect described in paragraph (a) above. The specific Possible Key Risk Events will be determined on a project specific basis but may include:

(i) the occurrence of a Project Specific Change in Law (discussed in section 19.3 in Chapter 19 (Compliance with Law);

(ii) as a result of a native title application or claim the private party is directed, ordered or required to cease to perform the operating activities (or to change the way it does so) (other than by way of a Final Court Decision which may be a Termination Event55);

(iii) as a result of a challenge to a planning approval obtained by government56 the private party is ordered by a court to cease carrying out the operating activities (or to change the way it does so) (other than by way of a Final Court Decision which may be a Termination Event 57) and provided the challenge was not the result of a breach of the planning approval or project agreement;58

(iv) the occurrence of an Uninsurable Force Majeure Event that affects the project works or facility;

(v) in the case of a tollroad project, in some jurisdictions, the offence of failing or refusing to pay tolls or charges is not enforced by government consistent with government's approach on an equivalent enforcement regime at contractual close;

(vi) in some jurisdictions, an identical directly competing facility is opened during the Contract Term; and

(vii) in the case of a tollroad project, in some jurisdictions a principal traffic connection is closed other than for specified events such as emergency, material threat to health or safety of the public, upgrade and maintenance or a special event.

(c) A negative compensable enhancement notified by the private party (as discussed in Chapter 14 (Payment provisions) cannot be a Possible Key Risk Event.

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55 See section 24.2(a)(i) of Chapter 24 (Termination).

56 See section 6.2(a) of Chapter 6 (Planning and other approvals)

57 See section 24.2(a)(i) of Chapter 24 (Termination).

58 Some jurisdictions develop a planning scheme process via project specific legislation and in some jurisdictions the private party bears the risk of obtaining such planning approval. In those jurisdictions this issue will not be a Possible Key Risk Event.