Common use of Default by the Concessionaire Clause in Contracts

Default by the Concessionaire. a) The Contract may be terminated in advance in the event that the CONCESSIONAIRE commits a serious default on its contractual obligations that affects or makes it impossible to carry out the normal performance or continuity of the Concession. These grounds are those expressly established as such in the Contract, including: i. If it is verified, following the execution of the Contract, that any of the representations established in Clause 2.4 is false. ii. Delay of over one hundred fifty (150) calendar days in any of the milestones established in Annex 6. iii. Failure to grant, renew, extend, or replenish the Contract Performance Bond in favor of the GRANTOR, in accordance with Clause 12. iv. Stoppage in the operation of the Project, without justified cause, as per the provisions of the Contract and/or the Applicable Laws and Provisions. v. Persistence, after the imposition of an administrative sanction by the OSINERGMIN, in the failure to uphold its obligations for the provision of the Service by the established deadlines and in accordance with the safety regulations and quality standards established in the Contract and the Applicable Laws and Provisions, provided that such sanctions have been ruled final and binding via administrative channels, or by the courts in case the respective contentious administrative proceeding has been brought. vi. The transfer, in whole or in part and under any title, of the rights of the CONCESSIONAIRE arising from the Contract or the assignment of its position thereunder without the prior written authorization of the GRANTOR. vii. Sanction(s) with non-tax-related administrative fines imposed by the GRANTOR or the OSINERGMIN, which, in one (1) calendar year— understood as each period running from January 1 to December 31— exceed ten percent (10%) of the Average Annual Cost for the previous year, provided said fines have been ruled final and binding via administrative channels, or by the courts in case the respective contentious administrative proceeding has been brought. These grounds shall apply starting with the second year of commercial operation. viii. The start, at the petition of the CONCESSIONAIRE, of a procedure for the merger, spin-off, or transformation of companies or other corporate reorganization, without the corresponding written authorization of the GRANTOR. ix. Declaration of insolvency, bankruptcy, winding-up, or liquidation of the CONCESSIONAIRE. x. The start, at the petition of the CONCESSIONAIRE, of a corporate, administrative, or administrative proceeding for its winding up or liquidation. xi. The disposal of the Concession Assets in any way other than those provided for in the Contract by the CONCESSIONAIRE, without the prior written authorization of the GRANTOR. xii. The commission of any act or omission that constitutes a willful default by the CONCESSIONAIRE that results in the commission of a crime subject to public prosecution, to the detriment of the GRANTOR, when so ruled in a final and binding court decision. xiii. The issuing of a final and binding court order or administrative decision that prevents the CONCESSIONAIRE from performing a substantial part of its business, provided that any of these measures remains in force for more than sixty (60) calendar days. The events considered in issuing the judicial or administrative decision shall be tied to circumstances imputable to the CONCESSIONAIRE. xiv. The failure to take out, restore or renew any of the insurance policies under the Contract or to take out them without including the terms and conditions set forth in Clause 7. xv. The execution of the Permitted Secured Debt contracts, without including the provisions indicated in Clause 9.6, or, having included them, the violation thereof. xvi. Failure to comply with the provisions established in Section 33 of the Regulations on Legislative Order No. 1362, approved by Executive Order No. 240-2018-EF, regarding the hiring of individuals or private-sector legal entities for the preparation of studies and consultancies on the Project. xvii. Unjustified failure to perform any of the activities requested by the GRANTOR, as set forth in the second paragraph of Clause 5.12 hereof. xviii. If by a final and binding resolution via administrative channels, or by the courts in case the respective contentious administrative proceeding has been brought, the expiration of the Definitive Electricity Transmission Concession is declared. xix. A declaration by the Competent Governmental Authority, via a final and binding resolution, determining a serious impact on the environment, the cultural heritage of the nation, and/or natural resources caused by the willful or negligent violation of the recommendations set forth in the respective Environmental Management Instrument. xx. Unjustified, serious, and repeated failure to perform any obligation of a substantial nature established in the Contract or the Applicable Laws and Provisions, different from those referred to in the preceding items. Substantial defaults are those tied to the achievement of the Contract’s purpose, as expressed in Clause 2, and/or the obligations established by the Applicable Laws and Provisions, that have been ruled final and binding via administrative or judicial channels, provided said defaults are unjustified. The default shall be understood as recidivistic if it has occurred three (3) times since the Closing Date for all obligations under the Contract, or, by virtue of two (2) final and binding administrative rulings, it has been determined that the CONCESSIONAIRE committed a serious violation to the detriment of other agents in the electricity market during two (2) consecutive years. b) The GRANTOR may also terminate the Contract in the event that the CONCESSIONAIRE fails to comply with the obligations of the Qualified Operator during the period required as per the Contract, in relation to: i. Conserving the Minimum Ownership Interest. ii. Maintaining or exercising the right and obligation to control the technical operations. c) The cases referred to in Items a) and b) above are considered grounds for termination only if a written request is issued and the Party at fault fails to rectify the lack of compliance, to the satisfaction of the other Party, within thirty (30) calendar days, extendable for up to an additional thirty (30) calendar days, counted as from the date on which the notice is received. d) For the purposes of the provisions set forth in this clause, the termination of the Contract due to defaults on the obligations of the CONCESSIONAIRE: i. Shall be the result of causes not included in the Contract as force majeure events or acts of God. ii. Shall not give rise to any indemnity right in favor of the CONCESSIONAIRE for damages and losses, without prejudice to the right to the settlement referred to in Clause 13.1.14. iii. Gives rise to the right of the GRANTOR to demand indemnity for all applicable damages and losses, without prejudice to the application of the corresponding penalties.

Default by the Concessionaire. a) The Contract may be terminated in advance in the event that the CONCESSIONAIRE commits a serious default on its contractual obligations that affects or makes it impossible to carry out the normal performance or continuity of the Concession. These grounds are those expressly established as such in the Contract, including: i. If it is verified, following the execution of the Contract, that any of the representations established in Clause 2.4 is false. ii. Delay of over one hundred fifty (150) calendar days in any of the milestones established in Annex 6. iii. Failure to grant, renew, extend, or replenish the Contract Performance Bond in favor of the GRANTOR, in accordance with Clause 12. iv. Stoppage in the operation of the Project, without justified cause, as per the provisions of the Contract and/or the Applicable Laws and Provisions. v. Persistence, after the imposition of an administrative sanction by the OSINERGMIN, in the failure to uphold its obligations for the provision of the Service by the established deadlines and in accordance with the safety regulations and quality standards established in the Contract and the Applicable Laws and Provisions, provided that such sanctions have been ruled final and binding via administrative channels, or by the courts in case the respective contentious administrative proceeding has been brought. vi. The transfer, in whole or in part and under any title, of the rights of the CONCESSIONAIRE arising from the Contract or the assignment of its position thereunder without the prior written authorization of the GRANTOR. vii. Sanction(s) with non-tax-related administrative fines imposed by the GRANTOR or the OSINERGMIN, which, in one (1) calendar year— understood as each period running from January 1 to December 31— exceed ten percent (10%) of the Average Annual Cost for the previous year, provided said fines have been ruled final and binding via administrative channels, or by the courts in case the respective contentious administrative proceeding has been brought. These grounds shall apply starting with the second year of commercial operation. viii. The start, at the petition of the CONCESSIONAIRE, of a procedure for the merger, spin-off, or transformation of companies or other corporate reorganization, without the corresponding written authorization of the GRANTOR. ix. Declaration of insolvency, bankruptcy, winding-up, or liquidation of the CONCESSIONAIRE. x. The start, at the petition of the CONCESSIONAIRE, of a corporate, administrative, or administrative proceeding for its winding up or liquidation. xi. The disposal of the Concession Assets in any way other than those provided for in the Contract by the CONCESSIONAIRE, without the prior written authorization of the GRANTOR. xii. The commission of any act or omission that constitutes a willful default by the CONCESSIONAIRE that results in the commission of a crime subject to public prosecution, to the detriment of the GRANTOR, when so ruled in a final and binding court decision. xiii. The issuing of a final and binding court order or administrative decision that prevents the CONCESSIONAIRE from performing a substantial part of its business, provided that any of these measures remains in force for more than sixty (60) calendar days. The events considered in issuing the judicial or administrative decision shall be tied to circumstances imputable to the CONCESSIONAIRE. xiv. The failure to take out, restore or renew any of the insurance policies under the Contract or to take out them without including the terms and conditions set forth in Clause 7. xv. The execution of the Permitted Secured Debt contracts, without including the provisions indicated in Clause 9.6, or, having included them, the violation thereof. xvi. Failure to comply with the provisions established in Section 33 of the Regulations on Legislative Order No. 1362, approved by Executive Order No. 240-2018-EF, regarding the hiring of individuals or private-sector legal entities for the preparation of studies and consultancies on the Project. xvii. Unjustified failure to perform any of the activities requested by the GRANTOR, as set forth in the second paragraph of Clause 5.12 hereof. xviii. If by a final and binding resolution via administrative channels, or by the courts in case the respective contentious administrative proceeding has been brought, the expiration of the Definitive Electricity Transmission Concession is declared. xix. A declaration by the Competent Governmental Authority, via a final and binding resolution, determining a serious impact on the environment, the cultural heritage of the nation, and/or natural resources caused by the willful or negligent violation of the recommendations obligations set forth in the respective Environmental Management Instrument. xx. Unjustified, serious, and repeated failure to perform any obligation of a substantial nature established in the Contract or the Applicable Laws and Provisions, different from those referred to in the preceding items. Substantial defaults are those tied to the achievement of the Contract’s purpose, as expressed in Clause 23.2, and/or the obligations established by the Applicable Laws and Provisions, that have been ruled final and binding via administrative or judicial channels, provided said defaults are unjustified. The default shall be understood as recidivistic if it has occurred three (3) times since the Closing Date for all obligations under the Contract, or, by virtue of two (2) final and binding administrative rulings, it has been determined that the CONCESSIONAIRE committed a serious violation to the detriment of other agents in the electricity market during two (2) consecutive years. b) The GRANTOR may also terminate the Contract in the event that the CONCESSIONAIRE fails to comply with the obligations of the Qualified Operator during the period required as per the Contract, in relation to: i. Conserving the Minimum Ownership Interest. ii. Maintaining or exercising the right and obligation to control the technical operations. c) The cases referred to in Items a) and b) above are considered grounds for termination only if a written request is issued and the Party at fault fails to rectify the lack of compliance, to the satisfaction of the other Party, within thirty (30) calendar days, extendable for up to an additional thirty (30) calendar days, counted as from the date on which the notice is received. d) For the purposes of the provisions set forth in this clause, the termination of the Contract due to defaults on the obligations of the CONCESSIONAIRE: i. Shall be the result of causes not included in the Contract as force majeure events or acts of God. ii. Shall not give rise to any indemnity right in favor of the CONCESSIONAIRE for damages and losses, without prejudice to the right to the settlement referred to in Clause 13.1.1413.14. iii. Gives rise to the right of the GRANTOR to demand indemnity for all applicable damages and losses, without prejudice to the application of the corresponding penalties.

Default by the Concessionaire. a) The Contract may be terminated in advance in the event that the CONCESSIONAIRE commits a serious default on its contractual obligations that affects or makes it impossible to carry out the normal performance or continuity of the Concession. These grounds are those expressly established as such in the Contract, including: i. If it is verified, following the execution of the Contract, that any of the representations established in Clause 2.4 is false. ii. Delay of over one hundred fifty (150) calendar days in any of the milestones established in Annex 67. iii. Failure to grant, renew, extend, or replenish the Contract Performance Bond in favor of the GRANTOR, in accordance with Clause 12. iv. Stoppage in the operation of the Project, without justified cause, as per the provisions of the Contract and/or the Applicable Laws and Provisions. v. Persistence, after the imposition of an administrative sanction by the OSINERGMIN, in the failure to uphold its obligations for the provision of the Service by the established deadlines and in accordance with the safety regulations and quality standards established in the Contract and the Applicable Laws and Provisions, provided that such sanctions have been ruled final and binding via administrative channels, or by the courts in case the respective contentious administrative proceeding has been brought. vi. The transfer, in whole or in part and under any title, of the rights of the CONCESSIONAIRE arising from the Contract or the assignment of its position thereunder without the prior written authorization of the GRANTOR. vii. Sanction(s) with non-tax-related administrative fines imposed by the GRANTOR or the OSINERGMIN, which, in one (1) calendar year— understood as each period running from January 1 to December 31— —exceed ten percent (10%) of the Average Annual Cost for the previous year, provided said fines have been ruled final and binding via administrative channels, or by the courts in case the respective contentious administrative proceeding has been brought. These grounds shall apply starting with the second year of commercial operation. viii. The start, at the petition of the CONCESSIONAIRE, of a procedure for the merger, spin-off, or transformation of companies or other corporate reorganization, without the corresponding written authorization of the GRANTOR. ix. Declaration of insolvency, bankruptcy, winding-up, or liquidation of the CONCESSIONAIRE. x. The start, at the petition of the CONCESSIONAIRE, of a corporate, administrative, or administrative proceeding for its winding up or liquidation. xi. The disposal of the Concession Assets in any way other than those provided for in the Contract by the CONCESSIONAIRE, without the prior written authorization of the GRANTOR. xii. The commission of any act or omission that constitutes a willful default by the CONCESSIONAIRE that results in the commission of a crime subject to public prosecution, to the detriment of the GRANTOR, when so ruled in a final and binding court decision. xiii. The issuing of a final and binding court order or administrative decision that prevents the CONCESSIONAIRE from performing a substantial part of its business, provided that any of these measures remains in force for more than sixty (60) calendar days. The events considered in issuing the judicial or administrative decision shall be tied to circumstances imputable to the CONCESSIONAIRE. xiv. The failure to take out, restore or renew any of the insurance policies under the Contract or to take out them without including the terms and conditions set forth in Clause 7. xv. The execution of the Permitted Secured Debt contracts, without including the provisions indicated in Clause 9.6, or, having included them, the violation thereof. xvi. Failure to comply with the provisions established in Section 33 of the Regulations on Legislative Order No. 1362, approved by Executive Order No. 240-2018-EF, regarding the hiring of individuals or private-sector legal entities for the preparation of studies and consultancies on the Project. xvii. Unjustified failure to perform any of the activities requested by the GRANTOR, as set forth in the second paragraph of Clause 5.12 hereof. xviii. If by a final and binding resolution via administrative channels, or by the courts in case the respective contentious administrative proceeding has been brought, the expiration of the Definitive Electricity Transmission Concession is declared. xix. A declaration by the Competent Governmental Authority, via a final and binding resolution, determining a serious impact on the environment, the cultural heritage of the nation, and/or natural resources caused by the willful or negligent violation of the recommendations obligations set forth in the respective Environmental Management Instrument. xx. Unjustified, serious, and repeated failure to perform any obligation of a substantial nature established in the Contract or the Applicable Laws and Provisions, different from those referred to in the preceding items. Substantial defaults are those tied to the achievement of the Contract’s purpose, as expressed in Clause 23.2, and/or the obligations established by the Applicable Laws and Provisions, that have been ruled final and binding via administrative or judicial channels, provided said defaults are unjustified. The default shall be understood as recidivistic if it has occurred three (3) times since the Closing Date for all obligations under the Contract, or, by virtue of two (2) final and binding administrative rulings, it has been determined that the CONCESSIONAIRE committed a serious violation to the detriment of other agents in the electricity market during two (2) consecutive years. b) The GRANTOR may also terminate the Contract in the event that the CONCESSIONAIRE fails to comply with the obligations of the Qualified Operator during the period required as per the Contract, in relation to: i. Conserving the Minimum Ownership Interest. ii. Maintaining or exercising the right and obligation to control the technical operations. c) The cases referred to in Items a) and b) above are considered grounds for termination only if a written request is issued and the Party at fault fails to rectify the lack of compliance, to the satisfaction of the other Party, within thirty (30) calendar days, extendable for up to an additional thirty (30) calendar days, counted as from the date on which the notice is received. d) For the purposes of the provisions set forth in this clause, the termination of the Contract due to defaults on the obligations of the CONCESSIONAIRE: i. Shall be the result of causes not included in the Contract as force majeure events or acts of God. ii. Shall not give rise to any indemnity right in favor of the CONCESSIONAIRE for damages and losses, without prejudice to the right to the settlement referred to in Clause 13.1.1413.14. iii. Gives rise to the right of the GRANTOR to demand indemnity for all applicable damages and losses, without prejudice to the application of the corresponding penalties.

Default by the Concessionaire. a) The Contract may be terminated in advance in the event that the CONCESSIONAIRE commits a serious default on its contractual obligations that affects or makes it impossible to carry out the normal performance or continuity of the Concession. These grounds are those expressly established as such in the Contract, including: i. If it is verified, following the execution of the Contract, that any of the representations established in Clause 2.4 is false. ii. Delay of over one hundred fifty (150) calendar days in any of the milestones established in Annex 67. iii. Failure to grant, renew, extend, or replenish the Contract Performance Bond in favor of the GRANTOR, in accordance with Clause 12. iv. Stoppage in the operation of the Project, without justified cause, as per the provisions of the Contract and/or the Applicable Laws and Provisions. v. Persistence, after the imposition of an administrative sanction by the OSINERGMIN, in the failure to uphold its obligations for the provision of the Service by the established deadlines and in accordance with the safety regulations and quality standards established in the Contract and the Applicable Laws and Provisions, provided that such sanctions have been ruled final and binding via administrative channels, or by the courts in case the respective contentious administrative proceeding has been brought. vi. The transfer, in whole or in part and under any title, of the rights of the CONCESSIONAIRE arising from the Contract or the assignment of its position thereunder without the prior written authorization of the GRANTOR. vii. Sanction(s) with non-tax-related administrative fines imposed by the GRANTOR or the OSINERGMIN, which, in one (1) calendar year— understood as each period running from January 1 to December 31— —exceed ten percent (10%) of the Average Annual Cost for the previous year, provided said fines have been ruled final and binding via administrative channels, or by the courts in case the respective contentious administrative proceeding has been brought. These grounds shall apply starting with the second year of commercial operation. viii. The start, at the petition of the CONCESSIONAIRE, of a procedure for the merger, spin-off, or transformation of companies or other corporate reorganization, without the corresponding written authorization of the GRANTOR. ix. Declaration of insolvency, bankruptcy, winding-up, or liquidation of the CONCESSIONAIRE. x. The start, at the petition of the CONCESSIONAIRE, of a corporate, administrative, or administrative proceeding for its winding up or liquidation. xi. The disposal of the Concession Assets in any way other than those provided for in the Contract by the CONCESSIONAIRE, without the prior written authorization of the GRANTOR. xii. The commission of any act or omission that constitutes a willful default by the CONCESSIONAIRE that results in the commission of a crime subject to public prosecution, to the detriment of the GRANTOR, when so ruled in a final and binding court decision. xiii. The issuing of a final and binding court order or administrative decision that prevents the CONCESSIONAIRE from performing a substantial part of its business, provided that any of these measures remains in force for more than sixty (60) calendar days. The events considered in issuing the judicial or administrative decision shall be tied to circumstances imputable to the CONCESSIONAIRE. xiv. The failure to take out, restore or renew any of the insurance policies under the Contract or to take out them without including the terms and conditions set forth in Clause 7. xv. The execution of the Permitted Secured Debt contracts, without including the provisions indicated in Clause 9.6, or, having included them, the violation thereof. xvi. Failure to comply with the provisions established in Section 33 of the Regulations on Legislative Order No. 1362, approved by Executive Order No. 240-2018-EF, regarding the hiring of individuals or private-sector legal entities for the preparation of studies and consultancies on the Project. xvii. Unjustified failure to perform any of the activities requested by the GRANTOR, as set forth in the second paragraph of Clause 5.12 hereof. xviii. If by a final and binding resolution via administrative channels, or by the courts in case the respective contentious administrative proceeding has been brought, the expiration of the Definitive Electricity Transmission Concession is declared. xix. A declaration by the Competent Governmental Authority, via a final and binding resolution, determining a serious impact on the environment, the cultural heritage of the nation, and/or natural resources caused by the willful or negligent violation of the recommendations set forth in the respective Environmental Management Instrument. xx. Unjustified, serious, and repeated failure to perform any obligation of a substantial nature established in the Contract or the Applicable Laws and Provisions, different from those referred to in the preceding items. Substantial defaults are those tied to the achievement of the Contract’s purpose, as expressed in Clause 2, and/or the obligations established by the Applicable Laws and Provisions, that have been ruled final and binding via administrative or judicial channels, provided said defaults are unjustified. The default shall be understood as recidivistic if it has occurred three (3) times since the Closing Date for all obligations under the Contract, or, by virtue of two (2) final and binding administrative rulings, it has been determined that the CONCESSIONAIRE committed a serious violation to the detriment of other agents in the electricity market during two (2) consecutive years. b) The GRANTOR may also terminate the Contract in the event that the CONCESSIONAIRE fails to comply with the obligations of the Qualified Operator during the period required as per the Contract, in relation to: i. Conserving the Minimum Ownership Interest. ii. Maintaining or exercising the right and obligation to control the technical operations. c) The cases referred to in Items a) and b) above are considered grounds for termination only if a written request is issued and the Party at fault fails to rectify the lack of compliance, to the satisfaction of the other Party, within thirty (30) calendar days, extendable for up to an additional thirty (30) calendar days, counted as from the date on which the notice is received. d) For the purposes of the provisions set forth in this clause, the termination of the Contract due to defaults on the obligations of the CONCESSIONAIRE: i. Shall be the result of causes not included in the Contract as force majeure events or acts of God. ii. Shall not give rise to any indemnity right in favor of the CONCESSIONAIRE for damages and losses, without prejudice to the right to the settlement referred to in Clause 13.1.14. iii. Gives rise to the right of the GRANTOR to demand indemnity for all applicable damages and losses, without prejudice to the application of the corresponding penalties.