Common use of Failure to achieve a Milestone Clause in Contracts

Failure to achieve a Milestone. (a) Subject to paragraph (b), the Commonwealth may terminate this agreement by written notice to Project Operator with immediate effect: (i) if the Commonwealth does not require Project Operator to submit a Draft Milestone Cure Plan under clause 5.3(b) (“Milestone Cure Plan other than for Force Majeure Event”) and Project Operator does not satisfy a Milestone on or before the relevant Milestone Date (including Financial Close by the FC Sunset Date); or (ii) if the Commonwealth does require Project Operator to submit a Draft Milestone Cure Plan under clause 5.3(b) and Project Operator does not: (A) submit a Draft Milestone Cure Plan in accordance with clause 5.3(c) that is approved by the Commonwealth in accordance with clause 5.3(d); (B) satisfy the relevant Milestone by the relevant date set out in the Approved Milestone Cure Plan; or (C) commence performing and then continue to comply with the Approved Milestone Cure Plan in all material respects, and does not remedy any failure to comply with the Approved Milestone Cure Plan (other than to satisfy the relevant Milestone by the relevant date, in which case subparagraph (D) 5.4(a)(ii)(B) applies) within 20 Business Days after notice from the Commonwealth. (b) The Commonwealth must not terminate this agreement pursuant to paragraph (a) if Project Operator has submitted a Draft Milestone Cure Plan to the Commonwealth under clause 5.3(b) (“Milestone Cure Plan other than for Force Majeure Event”) and the Commonwealth has not yet approved or rejected the Draft Milestone Cure Plan under clause 5.3(d). (c) In addition to the Commonwealth’s right to, and notwithstanding whether the Commonwealth does not, terminate this agreement under paragraph (a), if Project Operator does not achieve Financial Close by 40 Business Days after the FC Sunset Date (“FC Cure Period”), then this agreement will automatically terminate with immediate effect unless: (i) Project Operator has submitted a Draft Milestone Cure Plan to the Commonwealth under clause 5.3(b) (“Milestone Cure Plan other than for Force Majeure Event”) and the Commonwealth has not yet approved or rejected the Draft Milestone Cure Plan under clause 5.3(d), in which case: (A) if the Commonwealth approves the Draft Milestone Cure Plan, then this agreement is not terminated pursuant to this paragraph (c) and clause 5.3(e) applies, and this clause 5.4 will apply to any subsequent failure to achieve the relevant Milestone; or (B) if the Commonwealth rejects the Draft Milestone Cure Plan, then this agreement will automatically terminate with immediate effect on the date of the rejection; or (ii) prior to the end of the FC Cure Period, the Commonwealth notifies (at its discretion) Project Operator that the FC Cure Period is extended by 20 Business Days, in which case this this paragraph (c) will apply at the expiry of the extended FC Cure Period. (d) If Project Operator provides a document purporting to be a cure plan without having been formally requested to do so by the Commonwealth, this will not constitute a Draft Milestone Cure Plan under clause 5.3 and will not detract from or otherwise affect or limit the Commonwealth’s rights of termination under this clause 5.4.

Failure to achieve a Milestone. (a) Subject to paragraph (b), the Commonwealth may terminate this agreement by written notice to Project Operator with immediate effect: (i) if the Commonwealth does not require Project Operator to submit a Draft Milestone Cure Plan under clause 5.3(b5.3(b)5.43(b) (“Milestone Cure Plan other than for Force Majeure Event”) and Project Operator does not satisfy a Milestone on or before the relevant Milestone Date (including Financial Close by the FC Sunset Date); or (ii) if the Commonwealth does require Project Operator to submit a Draft Milestone Cure Plan under clause 5.3(b5.3(b)5.43(b) and Project Operator does not: (A) submit a Draft Milestone Cure Plan in accordance with clause 5.3(c5.3(c)5.43(c) that is approved by the Commonwealth in accordance with clause 5.3(d5.3(d)5.43(d); (B) satisfy the relevant Milestone by the relevant date set out in the Approved Milestone Cure Plan; or (C) commence performing and then continue to comply with the Approved Milestone Cure Plan in all material respects, and does not remedy any failure to comply with the Approved Milestone Cure Plan (other than to satisfy the relevant Milestone by the relevant date, in which case subparagraph (D) 5.4(a)(ii)(B) applies) within 20 Business Days after notice from the Commonwealth. (b) The Commonwealth must not terminate this agreement pursuant to paragraph (a) if Project Operator has submitted a Draft Milestone Cure Plan to the Commonwealth under clause 5.3(b5.3(b)5.43(b) (“Milestone Cure Plan other than for Force Majeure Event”) and the Commonwealth has not yet approved or rejected the Draft Milestone Cure Plan under clause 5.3(d5.3(d)5.43(d). (c) In addition to the Commonwealth’s right to, and notwithstanding whether the Commonwealth does not, terminate this agreement under paragraph (a), if Project Operator does not achieve Financial Close by 40 Business Days after the FC Sunset Date (“FC Cure Period”), then this agreement will automatically terminate with immediate effect unless: (i) Project Operator has submitted a Draft Milestone Cure Plan to the Commonwealth under clause 5.3(b5.3(b)5.43(b) (“Milestone Cure Plan other than for Force Majeure Event”) and the Commonwealth has not yet approved or rejected the Draft Milestone Cure Plan under clause 5.3(d5.3(d)5.43(d), in which case: (A) if the Commonwealth approves the Draft Milestone Cure Plan, then this agreement is not terminated pursuant to this paragraph (c) and clause 5.3(e) applies, and this clause 5.4 will apply to any subsequent failure to achieve the relevant Milestone; or (B) if the Commonwealth rejects the Draft Milestone Cure Plan, then this agreement will automatically terminate with immediate effect on the date of the rejection; or (ii) prior to the end of the FC Cure Period, the Commonwealth notifies (at its discretion) Project Operator that the FC Cure Period is extended by 20 Business Days, in which case this this paragraph (c) will apply at the expiry of the extended FC Cure Period. (d) If Project Operator provides a document purporting to be a cure plan without having been formally requested to do so by the Commonwealth, this will not constitute a Draft Milestone Cure Plan under clause 5.3 and will not detract from or otherwise affect or limit the Commonwealth’s rights of termination under this clause 5.4.5.3(e)5.43