If Project Co has been diligently pursuing the Cure Program, Project Co may request that the State, and the State must, extend the Cure Program and the time stated in the Major Default Notice. Project Co is only entitled to one extension in connection with the same Major Default. Limiting the number of extensions gives certainty to the parties and avoids the risk of open-ended Cure rights.
Volume 1, Part A of the RFP sets out the maximum Cure period permitted by the State under the relevant State Project Documents, including the Finance Direct Deed, in respect of a Major Default. For most Projects, the maximum Cure period during the Development Phase is 24 Months and during the Operational Phase is 18 Months. When determining the maximum Cure period to be included in the RFP, procuring agencies should consider a number of factors including the length of the Development Phase, the complexity of the Project and the maturity of the market in providing the required Works or Services. The maximum Cure periods should be agreed with DTF.
It is for the Project Co, the Financiers and the Key Subcontractors to determine the exclusive cure period (if any) that each party will have for curing a Major Default within the periods specified in Volume 1, Part A of the RFP. The maximum Cure period specified by the State in the RFP less the exclusive Cure period required by the Financiers under the Finance Direct Deed will be the maximum Cure period permitted for Project Co to Cure any Major Default under the Project Deed. The maximum Cure period that Financiers require (within the periods specified in Volume 1, Part A of the RFP) will determined by each Respondent and included in the Finance Direct Deed as part of its Proposal.
The maximum Cure periods that Project Co has under the Project Deed may be extended if Project Co is prevented from carrying out its obligations in accordance with a Cure Program as a direct result of an Extension Event or Intervening Event provided that:
• Project Co is entitled to be granted:
- an extension of time under clause 26.9 or 26.10; or
- relief under clause 32.2 or 32.3; and
• Project Co demonstrates to the State's satisfaction (acting reasonably) that Project Co has diligently pursued and, to the extent reasonably possible, continues to diligently pursue the Cure Program.
The maximum Cure period and the Major Default Notice may only be extended by the amount of time for which Project Co is entitled to an extension of time or relief for performance of the obligations in respect of the Extension Event or Intervening Event (as applicable).
If a Major Default remains uncured at the end of the maximum Cure period (including any permitted extension), this will constitute a Default Termination Event.