24.2 Termination by private party

The following events may be Termination Events which allow the private party to exercise the rights set out in this section:

(a)  any of the following events occurs which makes it impossible for the private party to undertake all, or substantially all, of the project for a continuous period set out in the project agreement (e.g. 2 months):

(i)  a court makes a decision which is final and binding on the parties, or the relevant State or Territory government enacts legislation; 82

(ii)  there is a resumption of all or a material part of the project site;83 or

(iii)  government fails to provide to the private party access rights to the project site;

(b)  government fails to make a contribution towards the cost of the project of the kind described in section 14.2 (Government contributions) which is required under the Project Contracts; or

(c)  the relevant approvals, which government is responsible to obtain, for operation of the facility are not in place or are subject to conditions which make it impossible for the private party to undertake all, or substantially all, of the project.84

If a Termination Event occurs, the private party may give government a specified period of notice of its intention to terminate the project agreement. Government may then give the private party notice within a specified period to suspend the private party's right to terminate.

The suspension period will expire when the Termination Event has been remedied (in which case the project agreement will continue in force) or at such other times prescribed in the project agreement. If the suspension period expires other than as a result of remediation of the Termination Event, the private party may terminate the project agreement by notice in writing to government. The private party must, to the extent that it is lawful and practical to do so, continue to perform its obligations under the Project Contracts during the suspension period.

During the suspension period, government may be:

(d)  required to pay compensation to the private party; and

(e)  restricted in issuing a notice of an Event of Default in relation to the private party.

If government does not give a suspension notice and the Termination Event has not been remedied within a specified period, the private party may terminate the project agreement by notice to government.

_______________________________________________________________________________
82 Other than a decision issued, or legislation enacted, as a result of a breach or some wrongful act or omission, by the private party.

83 For the avoidance of doubt, this paragraph does not apply to small resumptions of property (either individually or in aggregate) which do not impede on the private party's ability to undertake the project in accordance with (a).

84 Except where the approvals are not in place, or the conditions are a result of, a breach or some wrongful act or omission, by the private party.