29.2.1  Prior consent

(a)  In some jurisdictions, the private party must not permit any change to the legal or beneficial ownership of any shares or units or any other interests in any member of the private party group without government's prior consent.

(b)  In other jurisdictions, the limitation on change in ownership without consent is limited to the Change in Control of any member of the private party group.

(c)  Government will not unreasonably withhold consent to the change in ownership/Change in Control. The project agreement may stipulate circumstances where it will be deemed to be reasonable for government to withhold consent, for example where government is of the reasonable opinion that one or more of the following conditions apply:

(i)  the private party has not provided it with full details of the proposed change in ownership / Change in Control and any further information requested by government;

(ii)  the change in ownership / Change in Control is to take effect prior to the second anniversary of Completion (where it relates to the private party only);

(iii)  the proposed entity:137

(A)  is not solvent and reputable;

(B)  has an interest which conflicts in a material way with the interests of government and is involved in a business or activity which is incompatible, or inappropriate, in relation to the construction or operation of the facility; and

(C)  does not have a sufficient level of financial and technical capacity;

(iv)  the proposed change in ownership / Change in Control is against the public interest;

(v)  the proposed change in ownership / Change in Control would increase the level of risk or liabilities to government; or

(vi)  the proposed change in ownership / Change in Control would impact adversely on the ability or capacity of the private party to perform its obligations under the project agreement or any other project documents, and if applicable, of the material sub-contractor to perform its obligations under the material sub-contract.

(d)  Failure to obtain this consent will be a Default Termination Event.

(e)  Change in Control of a material sub-contractor will also require the prior written consent of government. In some jurisdictions, failure to obtain such prior consent will result in a Default Termination Event. In other jurisdictions, while failure to obtain such prior consent will not automatically trigger a Default Termination Event, a failure to cure an unauthorised Change in Control of a material sub-contractor within a specified period will do so.

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137  The proposed entity is to be considered and defined on a project-specific basis.