IN AND STEP-OUT. Step-in Notice If the Authority has terminated the Design Build Finance and Maintain Agreement in accordance with the terms of the Design Build Finance and Maintain Agreement or if the Authority has received a Termination Notice, then subject to the provisions of this Agreement, the Authority may give written notice to the Service Provider (copied to the Security Trustee) (a "Step-in Notice") of the intention of the Authority to issue a Step-in Undertaking on a specified date (the "Proposed Step-in Date") provided that such Proposed Step-in Date shall be: no later than [five (5)] Business Days after termination of the Design Build Finance and Maintain Agreement where this has been terminated by the Authority; and no earlier than the date falling five (5) Business Days prior to the date of expiry of the Termination Notice and no later than the date of expiry of the Termination Notice where a Termination Notice has been given by the Service Provider. Unless the Service Provider otherwise consents, only one Step-in Notice may be given during the period of this Agreement. Subject to Clause 5.1 (Rights of Termination) below, the Service Provider shall not be entitled to terminate the Service Contract until after the Proposed Step-in Date. Notice of Obligations and Step-in Undertaking Within [three (3)] Business Days of receipt of any Step-in Notice, the Service Provider shall give written notice to the Authority of any sums of which the Service Provider has actual knowledge which are due and payable but unpaid by Sub-hubco and of any other material obligations or liabilities, of which the Service Provider has actual knowledge, which should have been performed or discharged by Sub-hubco under the Service Contract, in each case, as at the date of the Step-in Notice. The Service Provider shall inform the Authority in writing as soon as reasonably practicable of: any change in such sums, obligations or liabilities referred to in Clause 3.2.1; and any further sums, obligations or liabilities thereafter falling due and payable but unpaid or falling due for performance or discharge and unperformed or undischarged (as the case may be); in each case of which the Service Provider has actual knowledge, before the Step-in Date.
Appears in 1 contract
Samples: Project Agreement
IN AND STEP-OUT. Step-in Notice If the Authority has terminated the Design Build Finance and Maintain Agreement in accordance with the terms of the Design Build Finance and Maintain Agreement or if the Authority has received a Termination Notice, then subject to the provisions of this Agreement, the Authority may give written notice to the Service Provider (copied to the Security Trustee) (a "Step-in Notice") of the intention of the Authority to issue a Step-in Undertaking on a specified date (the "Proposed Step-in Date") provided that such Proposed Step-in Date shall be: no later than [five (5)] Business Days after termination of the Design Build Finance and Maintain Agreement where this has been terminated by the Authority; and no earlier than the date falling five (5) Business Days prior to the date of expiry of the Termination Notice and no later than the date of expiry of the Termination Notice where a Termination Notice has been given by the Service Provider. Unless the Service Provider otherwise consents, only one Step-in Notice may be given during the period of this Agreement. Subject to Clause 5.1 (Rights of Termination) below, the Service Provider shall not be entitled to terminate the Service Contract until after the Proposed Step-in Date. Notice of Obligations and Step-in Undertaking Within [three (3)] Business Days of receipt of any Step-in Notice, the Service Provider shall give written notice to the Authority of any sums of which the Service Provider has actual knowledge which are due and payable but unpaid by Sub-hubco DBFM Co and of any other material obligations or liabilities, of which the Service Provider has actual knowledge, which should have been performed or discharged by Sub-hubco DBFM Co under the Service Contract, in each case, as at the date of the Step-in Notice. The Service Provider shall inform the Authority in writing as soon as reasonably practicable of: any change in such sums, obligations or liabilities referred to in Clause 3.2.1; and any further sums, obligations or liabilities thereafter falling due and payable but unpaid or falling due for performance or discharge and unperformed or undischarged (as the case may be); in each case of which the Service Provider has actual knowledge, before the Step-in Date.
Appears in 1 contract
Samples: Project Agreement
IN AND STEP-OUT. Step-in Notice If the Authority has terminated the Design Build Finance and Maintain Agreement in accordance with the terms of the Design Build Finance and Maintain Agreement or if the Authority has received a Termination Notice, then subject to the provisions of this Agreement, the Authority may give written notice to the Service Provider Contractor (copied to the Security Trustee) (a "Step-in Notice") of the intention of the Authority to issue a Step-in Undertaking on a specified date (the "Proposed Step-in Date") provided that such Proposed Step-in Date shall be: no later than [five (5)] Business Days after termination of the Design Build Finance and Maintain Agreement where this has been terminated by the Authority; and no earlier than the date falling five (5) Business Days prior to the date of expiry of the Termination Notice and no later than the date of expiry of the Termination Notice where a Termination Notice has been given by the Service ProviderContractor. Unless the Service Provider Contractor otherwise consents, only one Step-in Notice may be given during the period of this Agreement. Subject to Clause 5.1 (Rights of Termination) below, the Service Provider Contractor shall not be entitled to terminate the Service Construction Contract until after the Proposed Step-in Date. Notice of Obligations and Step-in Undertaking Within [three (3)] Business Days of receipt of any Step-in Notice, the Service Provider Contractor shall give written notice to the Authority of any sums of which the Service Provider Contractor has actual knowledge which are due and payable but unpaid by Sub-hubco DBFM Co and of any other material obligations or liabilities, of which the Service Provider Contractor has actual knowledge, which should have been performed or discharged by Sub-hubco DBFM Co under the Service Construction Contract, in each case, as at the date of the Step-in Notice. The Service Provider Contractor shall inform the Authority in writing as soon as reasonably practicable of: any change in such sums, obligations or liabilities referred to in Clause 3.2.1; and any further sums, obligations or liabilities thereafter falling due and payable but unpaid or falling due for performance or discharge and unperformed or undischarged (as the case may be); in each case of which the Service Provider Contractor has actual knowledge, before the Step-in Date.
Appears in 1 contract
Samples: Project Agreement
IN AND STEP-OUT. Step-in Notice If the Authority has terminated the Design Build Finance and Maintain Agreement in accordance with the terms of the Design Build Finance and Maintain Agreement or if the Authority has received a Termination Notice, then subject to the provisions of this Agreement, the Authority may give written notice to the Service Provider Contractor (copied to the Security Trustee) (a "Step-in Notice") of the intention of the Authority to issue a Step-in Undertaking on a specified date (the "Proposed Step-in Date") provided that such Proposed Step-in Date shall be: no later than [five (5)] Business Days after termination of the Design Build Finance and Maintain Agreement where this has been terminated by the Authority; and no earlier than the date falling five (5) Business Days prior to the date of expiry of the Termination Notice and no later than the date of expiry of the Termination Notice where a Termination Notice has been given by the Service ProviderContractor. Unless the Service Provider Contractor otherwise consents, only one Step-in Notice may be given during the period of this Agreement. Subject to Clause 5.1 (Rights of Termination) below, the Service Provider Contractor shall not be entitled to terminate the Service Construction Contract until after the Proposed Step-in Date. Notice of Obligations and Step-in Undertaking Within [three (3)] Business Days of receipt of any Step-in Notice, the Service Provider Contractor shall give written notice to the Authority of any sums of which the Service Provider Contractor has actual knowledge which are due and payable but unpaid by Sub-hubco and of any other material obligations or liabilities, of which the Service Provider Contractor has actual knowledge, which should have been performed or discharged by Sub-hubco under the Service Construction Contract, in each case, as at the date of the Step-in Notice. The Service Provider Contractor shall inform the Authority in writing as soon as reasonably practicable of: any change in such sums, obligations or liabilities referred to in Clause 3.2.1; and any further sums, obligations or liabilities thereafter falling due and payable but unpaid or falling due for performance or discharge and unperformed or undischarged (as the case may be); in each case of which the Service Provider Contractor has actual knowledge, before the Step-in Date.
Appears in 1 contract
Samples: Project Agreement
IN AND STEP-OUT. Step-in Notice If the Authority has terminated the Design Build Finance and Maintain Agreement in accordance with the terms of the Design Build Finance and Maintain Agreement or if the Authority has received a Termination Notice, then subject to the provisions of this Agreement, the Authority may give written notice to the Service Provider Contractor (copied to the Security Trustee) (a "Step-in Notice") of the intention of the Authority to issue a Step-in Undertaking on a specified date (the "Proposed Step-in Date") provided that such Proposed Step-in Date shall be: no later than [five (5)] Business Days after termination of the Design Build Finance and Maintain Agreement where this has been terminated by the Authority; and no earlier than the date falling five (5) Business Days prior to the date of expiry of the Termination Notice and no later than the date of expiry of the Termination Notice where a Termination Notice has been given by the Service ProviderContractor. Unless the Service Provider Contractor otherwise consents, only one Step-in Notice may be given during the period of this Agreement. Subject to Clause 5.1 140.1 (Rights of Termination) below, the Service Provider Contractor shall not be entitled to terminate the Service Construction Contract until after the Proposed Step-in Date. Notice of Obligations and Step-in Undertaking Within [three (3)] Business Days of receipt of any Step-in Notice, the Service Provider Contractor shall give written notice to the Authority of any sums of which the Service Provider Contractor has actual knowledge which are due and payable but unpaid by Sub-hubco Project Co and of any other material obligations or liabilities, of which the Service Provider Contractor has actual knowledge, which should have been performed or discharged by Sub-hubco Project Co under the Service Construction Contract, in each case, as at the date of the Step-in Notice. The Service Provider Contractor shall inform the Authority in writing as soon as reasonably practicable of: any change in such sums, obligations or liabilities referred to in Clause 3.2.1138.2.1; and any further sums, obligations or liabilities thereafter falling due and payable but unpaid or falling due for performance or discharge and unperformed or undischarged (as the case may be); in each case of which the Service Provider Contractor has actual knowledge, before the Step-in Date. The Contractor shall give the Authority the information referred to in Clauses 138.2.1 and 138.2.2 in good faith and may not give any further notifications pursuant to Clause 138.2.2 less than [two (2)] Business Days prior to the Proposed Step-in Date. The Authority shall not be required to assume any liability under a Step-in Undertaking for any outstanding obligations or liabilities of Project Co to the Contractor which are not notified to the Authority pursuant to Clauses 138.2.1 or 138.2.2. Not later than the Proposed Step-in Date the Authority shall decide if it is prepared to issue a Step-in Undertaking. If it does so decide, the Authority shall promptly give the Contractor written notification of such decision and, at the same time, provide a copy of such notification to the Senior Funder. The Authority shall deliver to the Contractor on the Proposed Step-in Date, a written undertaking in form and substance agreed with the Contractor (both the Authority and the Contractor acting reasonably) (the "Step in Undertaking"), incorporating a clause in terms similar to Clause 146 (but only to the extent that there will not be double counting of default interest accruing under the Construction Contract and this Agreement), and undertaking to the Contractor: to pay or procure the payment to the Contractor, within [fifteen (15)] Business Days of demand by the Contractor, of any sum due and payable but unpaid by Project Co to the Contractor under the Construction Contract before the Step-in Date and which has been notified by the Contractor to the Authority in accordance with Clause 138.2.1 or 138.2.2; to perform or discharge or procure the performance or discharge of any unperformed or undischarged obligations of Project Co under the Construction Contract which shall have fallen due for performance or discharge before the Step-in Date and which have been notified by the Contractor to the Authority in accordance with Clause 138.2.1 or 138.2.2 within such period as the Contractor may reasonably require; to pay or procure the payment of any sum due and payable by Project Co under the Construction Contract as a result of any act or omission occurring during the Step-in Period which shall arise from any act or omission occurring after the Step-in Date (but subject to Clauses 138.4 and 139.5.3.1(b)) but not, to avoid doubt, any sum due in respect of any Works carried out before the Step-in Date; and to perform or discharge or procure the performance or discharge of any obligations of Project Co under the Construction Contract as a result of any act or omission occurring during the Step-in Period which shall arise from any act or omission occurring after the Step-in Date (but subject to Clauses 138.4 (Step-Out) and 139.5.3.1(b)) but not, to avoid doubt, to perform or discharge or to procure the performance or discharge of any obligations in respect of any Works carried before the Step-in Date. Following notification of the Authority’s decision pursuant to Clause 158.2.4, the Security Trustee shall, on or before the Proposed Step-in Date, take any action which is necessary unconditionally and irrevocably to release the Construction Contract and the Parent Company Guarantee from the security constituted by the Security Documents. Upon release by the Security Trustee of its security over the Parent Company Guarantee in accordance with Clause 138.2.5, Project Co shall immediately assign all its rights and powers under the Parent Company Guarantee to the Authority in accordance with Clause [insert reference] of the same. If the Authority shall not have issued the Step-in Undertaking on or before the Proposed Step-in Date the Step-in Notice shall be deemed to have been withdrawn and the rights and obligations of the Parties shall be construed as if the Step-in Notice had not been given.
Appears in 1 contract
Samples: Form Project Agreement
IN AND STEP-OUT. Step-in Notice If the Authority has terminated the Design Build Finance and Maintain Agreement in accordance with the terms of the Design Build Finance and Maintain Agreement or if the Authority has received a Termination Notice, then subject to the provisions of this Agreement, the Authority may give written notice to the Service Provider (copied to the Security Trustee) (a "Step-in Notice") of the intention of the Authority to issue a Step-in Undertaking on a specified date (the "Proposed Step-in Date") provided that such Proposed Step-in Date shall be: no later than [five (5)] Business Days after termination of the Design Build Finance and Maintain Agreement where this has been terminated by the Authority; and no earlier than the date falling five (5) Business Days prior to the date of expiry of the Termination Notice and no later than the date of expiry of the Termination Notice where a Termination Notice has been given by the Service Provider. Unless the Service Provider otherwise consents, only one Step-in Notice may be given during the period of this Agreement. Subject to Clause 5.1 160.1 (Rights of Termination) below, the Service Provider shall not be entitled to terminate the Service Contract until after the Proposed Step-in Date. Notice of Obligations and Step-in Undertaking Within [three (3)] Business Days of receipt of any Step-in Notice, the Service Provider shall give written notice to the Authority of any sums of which the Service Provider has actual knowledge which are due and payable but unpaid by Sub-hubco Project Co and of any other material obligations or liabilities, of which the Service Provider has actual knowledge, which should have been performed or discharged by Sub-hubco Project Co under the Service Contract, in each case, as at the date of the Step-in Notice. The Service Provider shall inform the Authority in writing as soon as reasonably practicable of: any change in such sums, obligations or liabilities referred to in Clause 3.2.1158.2.1; and any further sums, obligations or liabilities thereafter falling due and payable but unpaid or falling due for performance or discharge and unperformed or undischarged (as the case may be); in each case of which the Service Provider has actual knowledge, before the Step-in Date. The Service Provider shall give the Authority the information referred to in Clauses 138.2.1 and 158.2.2 in good faith and may not give any further notifications pursuant to Clause 158.2.2 less than [two (2)] Business Days prior to the Proposed Step-in Date. The Authority shall not be required to assume any liability under a Step-in Undertaking for any outstanding obligations or liabilities of Project Co to the Service Provider which are not notified to the Authority pursuant to Clauses 158.2.1 or 158.2.2. Not later than the Proposed Step-in Date the Authority shall decide if it is prepared to issue a Step-in Undertaking. If it does so decide, the Authority shall promptly give the Service Provider written notification of such decision and, at the same time, provide a copy of such notification to the Senior Funder. The Authority shall deliver to the Service Provider on the Proposed Step-in Date, a written undertaking in form and substance agreed with the Service Provider (both the Authority and the Service Provider acting reasonably) (the "Step in Undertaking"), incorporating a clause in terms similar to Clause 166 (Default Interest) (but only to the extent that there will not be double counting of default interest accruing under the Service Contract and this Agreement), and undertaking to the Service Provider: to pay or procure the payment to the Service Provider, within [fifteen (15)] Business Days of demand by the Service Provider, of any sum due and payable but unpaid by Project Co to the Service Provider under the Service Contract before the Step-in Date and which has been notified by the Service Provider to the Authority in accordance with Clause 158.2.1 or 158.2.2; to perform or discharge or procure the performance or discharge of any unperformed or undischarged obligations of Project Co under the Service Contract which shall have fallen due for performance or discharge before the Step-in Date and which have been notified by the Service Provider to the Authority in accordance with Clause 158.2.1 or 158.2.2 within such period as the Service Provider may reasonably require; to pay or procure the payment of any sum due and payable by Project Co under the Service Contract as a result of any act or omission occurring during the Step-in Period which shall arise from any act or omission occurring after the Step-in Date (but subject to Clauses 138.4 (Step-Out) and 159.5.3.1(b)) but not, to avoid doubt, any sum due in respect of any Services provided before the Step-in Date; and to perform or discharge or procure the performance or discharge of any obligations of Project Co under the Service Contract as a result of any act or omission occurring during the Step-in Period which shall arise from any act or omission occurring after the Step-in Date (but subject to Clauses 138.4 (Step-Out) and 159.5.3.1(b)) but not, to avoid doubt, to perform or discharge or to procure the performance or discharge of any obligations in respect of any Services provided before the Step-in Date. Following notification of the Authority’s decision pursuant to Clause 158.2.4, the Security Trustee shall, on or before the Proposed Step-in Date, take any action which is necessary unconditionally and irrevocably to release the Service Contract and the Parent Company Guarantee from the security constituted by the Security Documents. Upon release by the Security Trustee of its security over the Parent Company Guarantee in accordance with Clause 158.2.5 Project Co shall immediately assign all its rights and powers under the Parent Company Guarantee to the Authority in accordance with clause [insert reference] of the same. If the Authority shall not have issued the Step-in Undertaking on or before the Proposed Step-in Date the Step-in Notice shall be deemed to have been withdrawn and the rights and obligations of the Parties shall be construed as if the Step-in Notice had not been given.
Appears in 1 contract
Samples: Form Project Agreement
