Termination for Concessionaire Default. 33.1.1 Save as otherwise provided in this Agreement, in the event that any of the defaults specified below shall have occurred, and the Concessionaire fails to cure the default within the Cure Period set forth below, or where no Cure Period is specified, then within a Cure Period of 60 (sixty) days, the Concessionaire shall be deemed to be in default of this Agreement (the "Concessionaire Default"), unless the default has occurred solely as a result of any breach of this Agreement by the Authority or due to Force Majeure. The defaults referred to herein shall include: (a) the Performance Security or the Performance Guarantee, as the case may be, has been encashed and appropriated in accordance with Clause 9.4 respectively and the Concessionaire fails to replenish or provide fresh Performance Security or the Performance Guarantee, as the case may be, within a Cure Period of 30 (thirty) days; (b) subsequent to the replenishment or furnishing of fresh Performance Security or the Performance Guarantee, as the case may be, in accordance with Clause 9.4 respectively, the Concessionaire fails to cure, within a Cure Period of 90 (ninety) days, the Concessionaire Default for which whole or part of the Performance Security or the Performance Guarantee, as the case may be, was appropriated; (c) the Concessionaire does not achieve the latest outstanding Project Milestone due in accordance with the provisions of Schedule-G and continues to be in default for 120 (one hundred and twenty) days; (d) the Concessionaire abandons or manifests intention to abandon the construction or operation of the Project without the prior written consent of the Authority; (e) Project Completion Date does not occur within the period specified in Clause 12.4.3; (f) the Punch List items have not been completed within the period set forth in Clause 14.4.1; (g) the Concessionaire is in breach of the Maintenance Requirements or the Safety Requirements, as the case may be, or commits repeated default in conforming to the Key Performance Indicators; (h) the Concessionaire has failed to make any payment to the Authority within the period specified in this Agreement; (i) an Escrow Default has occurred and the Concessionaire fails to cure the default within a Cure Period of 15 (fifteen) days; (j) upon occurrence of a Financial Default, the Lenders’ Representative has by notice required the Authority to undertake Suspension or Termination, as the case may be, in accordance with the Substitution Agreement and the Concessionaire fails to cure the default within the Cure Period specified hereinabove; (k) a breach of any of the Project Agreements by the Concessionaire has caused a Material Adverse Effect; (l) the Concessionaire creates any Encumbrance in breach of this Agreement; (m) the Concessionaire repudiates this Agreement or otherwise takes any action or evidences or conveys an intention not to be bound by the Agreement; (n) a Change in Ownership has occurred in breach of the provisions of Clause 5.3; (o) there is a transfer, pursuant to law either of (i) the rights and/or obligations of the Concessionaire under any of the Project Agreements, or of (ii) all or part of the assets or undertaking of the Concessionaire, and such transfer causes a Material Adverse Effect; (p) an execution levied on any of the assets of the Concessionaire has caused a Material Adverse Effect; (q) the Concessionaire is adjudged bankrupt or insolvent, or if a trustee or receiver is appointed for the Concessionaire or for the whole or material part of its assets that has a material bearing on the Project; (r) the Concessionaire has been, or is in the process of being liquidated, dissolved, wound-up, amalgamated or reconstituted in a manner that would cause, in the reasonable opinion of the Authority, a Material Adverse Effect; (s) a resolution for winding up of the Concessionaire is passed, or any petition for winding up of the Concessionaire is admitted by a court of competent jurisdiction and a provisional liquidator or receiver is appointed and such order has not been set aside within 90 (ninety) days of the date thereof or the Concessionaire is ordered to be wound up by Court except for the purpose of amalgamation or reconstruction; provided that, as part of such amalgamation or reconstruction, the entire property, assets and undertaking of the Concessionaire are transferred to the amalgamated or reconstructed entity and that the amalgamated or reconstructed entity has unconditionally assumed the obligations of the Concessionaire under this Agreement and the Project Agreements; and provided that: (i) the amalgamated or reconstructed entity has the capability and operating experience necessary for the performance of its obligations under this Agreement and the Project Agreements; (ii) the amalgamated or reconstructed entity has the financial standing to perform its obligations under this Agreement and the Project Agreements and has a credit worthiness at least as good as that of the Concessionaire as at the Appointed Date; and (iii) each of the Project Agreements remains in full force and effect; (t) any representation or warranty of the Concessionaire herein contained which is, as of the date hereof, found to be materially false, incorrect or misleading or the Concessionaire is at any time hereafter found to be in breach thereof; (u) the Concessionaire submits to the Authority any statement, notice or other Document, in written or electronic form, which has a material effect on the Authority's rights, obligations or interests and which is false in material particulars; (v) the Concessionaire has failed to fulfil any obligation, for which failure Termination has been specified in this Agreement; (w) the Concessionaire commits a default in complying with any other provision of this Agreement if such default causes a Material Adverse Effect on the Authority; (x) the Concessionaire fails to pay the Upfront Premium and Annual Concession Fee in accordance with Article 25; or (y) the COD of Commercial Complex is not achieved by 2555th day of the Appointed Date or by such other extended period as agreed upon by Authority. 33.1.2 Without prejudice to any other rights or remedies which the Authority may have under this Agreement, upon occurrence of a Concessionaire Default, the Authority shall be entitled to terminate this Agreement by issuing a Termination Notice to the Concessionaire; provided that before issuing the Termination Notice, the Authority shall by a notice inform the Concessionaire of its intention to issue such Termination Notice and grant 15 (fifteen) days to the Concessionaire to make a representation, and may after the expiry of such 15 (fifteen) days, whether or not it is in receipt of such representation, issue the Termination Notice, subject to the provisions of Clause 33.1.3. 33.1.3 The Authority shall, if there be Senior Lenders, send a copy of its notice of intention to issue a Termination Notice referred to in Clause 33.1.2 to inform the Lenders’ Representative and grant 15 (fifteen) days to the Lenders’ Representative, for making a representation on behalf of the Senior Lenders stating the intention to substitute the Concessionaire in accordance with the Substitution Agreement. In the event the Authority receives such representation on behalf of Senior Lenders, it shall, in its discretion, either withhold Termination for a period not exceeding 180 (one hundred and eighty) days from the date of such representation or exercise its right of Suspension, as the case may be, for enabling the Lenders' Representative to exercise the Senior Lenders’ right of substitution in accordance with the Substitution Agreement. Provided that the Lenders’ Representative may, instead of exercising the Senior Lenders’ right of substitution, procure that the default specified in the notice is cured within the aforesaid period of 180 (one hundred and eighty) days, and upon such curing thereof, the Authority shall withdraw its notice referred to above and restore all the rights of the Concessionaire. Provided further that upon written request from the Lenders’ Representative and the Concessionaire, the Authority shall extend the aforesaid period of 180 (one hundred and eighty) days by such further period not exceeding 90 (ninety) days, as the Authority may deem appropriate.
Appears in 15 contracts
Samples: Concession Agreement, Concession Agreement, Concession Agreement
Termination for Concessionaire Default. 33.1.1 Save 31.1. 1Save as otherwise provided in this Agreement, in the event that any of the defaults specified below shall have occurred, and the Concessionaire fails to cure the default within the Cure Period set forth below, or where no Cure Period is specified, then within a Cure Period of 60 30 (sixtythirty) days, the Concessionaire shall be deemed to be in default of this Agreement (the "Concessionaire Default"), unless the default has occurred solely as a result of any breach of this Agreement by the Authority or due to Force Majeure. The defaults referred to herein shall includeinclude the following:
(a) the The Performance Security or the Performance Guarantee, as the case may be, has been encashed and appropriated in accordance with Clause 9.4 respectively 9.2 and the Concessionaire fails to replenish or provide fresh Performance Security or the Performance Guarantee, as the case may be, within a Cure Period of 30 15 (thirtyfifteen) days;
(b) subsequent to the replenishment or furnishing of fresh Performance Security in accordance with Clause 9.2, the Concessionaire fails to meet any Condition Precedent or cure the Performance GuaranteeConcessionaire Default, as the case may be, in accordance with Clause 9.4 respectively, the Concessionaire fails to cure, within a Cure Period of 90 (ninety) days, the Concessionaire Default for which whole or part of the Performance Security or the Performance Guarantee, as the case may be, was appropriated, within a Cure Period of 120 (one hundred and twenty) days;
(c) the Concessionaire does not achieve the latest outstanding Project Milestone due in accordance with the provisions of Schedule-G and continues to be in default for 120 (one hundred and twenty) days;
(d) the The Concessionaire abandons or manifests intention to abandon the construction or operation of the Project without the prior written consent of the Authority;
(e) Project Completion Date COD does not occur within the period specified in Clause 12.4.312.3.3;
(f) the Punch List items have not been completed within the period set forth in Clause 14.4.1Not Used;
(g) the Concessionaire is in breach of the Maintenance Requirements or the Safety Requirements, as the case may be, or commits repeated default in conforming to the Key Performance Indicators;
(h) the Concessionaire has failed to make any payment to the Authority within the period specified in this Agreement;
(i) an Escrow Default has occurred and the Concessionaire fails to cure the default within a Cure Period of 15 (fifteen) days;
(j) upon occurrence of a Financial Default, the Lenders’ ' Representative has by notice required the Authority to undertake Suspension or Termination, as the case may be, in accordance with the Substitution Agreement and the Concessionaire fails to cure the default within the Cure Period specified hereinabove;
(k) a breach of any of the Project Agreements by the Concessionaire has caused a Material Adverse Effect;
(lI) the Concessionaire creates any Encumbrance in breach of this Agreement;
(m) the Concessionaire repudiates this Agreement or otherwise takes any action or evidences or conveys an intention not to be bound by the Agreement;
(n) a Change in Ownership has occurred in breach of the provisions of Clause 5.3;
(o) there is a transfer, pursuant to law either of (i) the rights and/or obligations of the Concessionaire under any of the Project Agreements, or of (ii) all or part of the assets or undertaking of the Concessionaire, and such transfer causes a Material Adverse Effect;
(p) an execution levied on any of the assets of the Concessionaire has caused a Material Adverse Effect;
(q) the Concessionaire is adjudged bankrupt or insolvent, or if a trustee or receiver is appointed for the Concessionaire or for the whole or material part of its assets that has a material bearing on the Project;
(r) the Concessionaire has been, or is in the process of being liquidated, dissolved, wound-up, amalgamated or reconstituted in a manner that would cause, in the reasonable opinion of the Authority, a Material Adverse Effect;
(s) a resolution for winding up of the Concessionaire is passed, or any petition for winding up of the Concessionaire is admitted by a court of competent jurisdiction and a provisional liquidator or receiver is appointed and such order has not been set aside within 90 (ninety) days of the date thereof or the Concessionaire is ordered to be wound up by Court except for the purpose of amalgamation or reconstruction; provided that, as part of such amalgamation or reconstruction, the entire property, assets and undertaking of the Concessionaire are transferred to the amalgamated or reconstructed entity and that the amalgamated or reconstructed entity has unconditionally assumed the obligations of the Concessionaire under this Agreement and the Project Agreements; and provided that:
(i) the amalgamated or reconstructed entity has the capability and operating experience necessary for the performance of its obligations under this Agreement and the Project Agreements;
(ii) the amalgamated or reconstructed entity has the financial standing to perform its obligations under this Agreement and the Project Agreements and has a credit worthiness at least as good as that of the Concessionaire as at the Appointed Date; and
(iii) each of the Project Agreements remains in full force and effect;
(t) any representation or warranty of the Concessionaire herein contained which is, as of the date hereof, found to be materially false, incorrect or misleading or the Concessionaire is at any time hereafter found to be in breach thereof;
(u) the Concessionaire submits to the Authority any statement, notice or other Document, in written or electronic form, which has a material effect on the Authority's rights, obligations or interests and which is false in material particulars;
(v) the Concessionaire has failed to fulfil any obligation, for which failure Termination has been specified in this Agreement;
(w) the Concessionaire commits a default in complying with any other provision of this Agreement if such default causes a Material Adverse Effect on the Authority;
(x) the Concessionaire fails to pay the Upfront Premium and Annual Concession Fee in accordance with Article 25; or
(y) the COD of Commercial Complex is not achieved by 2555th day of the Appointed Date or by such other extended period as agreed upon by Authority.
33.1.2 Without prejudice to any other rights or remedies which the Authority may have under this Agreement, upon occurrence of a Concessionaire Default, the Authority shall be entitled to terminate this Agreement by issuing a Termination Notice to the Concessionaire; provided that before issuing the Termination Notice, the Authority shall by a notice inform the Concessionaire of its intention to issue such Termination Notice and grant 15 (fifteen) days to the Concessionaire to make a representation, and may after the expiry of such 15 (fifteen) days, whether or not it is in receipt of such representation, issue the Termination Notice, subject to the provisions of Clause 33.1.3.
33.1.3 The Authority shall, if there be Senior Lenders, send a copy of its notice of intention to issue a Termination Notice referred to in Clause 33.1.2 to inform the Lenders’ Representative and grant 15 (fifteen) days to the Lenders’ Representative, for making a representation on behalf of the Senior Lenders stating the intention to substitute the Concessionaire in accordance with the Substitution Agreement. In the event the Authority receives such representation on behalf of Senior Lenders, it shall, in its discretion, either withhold Termination for a period not exceeding 180 (one hundred and eighty) days from the date of such representation or exercise its right of Suspension, as the case may be, for enabling the Lenders' Representative to exercise the Senior Lenders’ right of substitution in accordance with the Substitution Agreement. Provided that the Lenders’ Representative may, instead of exercising the Senior Lenders’ right of substitution, procure that the default specified in the notice is cured within the aforesaid period of 180 (one hundred and eighty) days, and upon such curing thereof, the Authority shall withdraw its notice referred to above and restore all the rights of the Concessionaire. Provided further that upon written request from the Lenders’ Representative and the Concessionaire, the Authority shall extend the aforesaid period of 180 (one hundred and eighty) days by such further period not exceeding 90 (ninety) days, as the Authority may deem appropriate.
Appears in 3 contracts
Samples: Concession Agreement, Concession Agreement, Concession Agreement
Termination for Concessionaire Default. 33.1.1 25.1.1 Save as otherwise provided in this Agreement, in the event that any of the defaults specified below shall have occurred, and the Concessionaire fails to cure the default within the Cure Period set forth below, or where no Cure Period is specified, then within a Cure Period of 60 (sixty) days, the Concessionaire shall be deemed to be in default of this Agreement (the "Concessionaire Default"), unless the default has occurred solely as a result of any breach of this Agreement by the Authority or due to Force Majeure. Upon occurrence of a Concessionaire Default, the Authority shall issue a Notice of Breach to the Concessionaire and to the Lender’s Representative, intimating about the breach and commencement of Cure Period for repair of such breach. The Cure Period shall be for a duration of 60 (sixty) days from the date of issue of Notice of Breach. The breach / defaults referred to herein shall include:
(a) the The Performance Security or the Performance Guarantee, as the case may be, has been encashed and appropriated in accordance with Clause 9.4 respectively ARTICLE 9 and the Concessionaire fails to replenish or provide fresh Performance Security or the Performance Guarantee, as the case may be, within a Cure Period of 30 (thirty) days;
(b) subsequent to the replenishment or furnishing days of fresh Performance Security or the Performance Guarantee, as the case may beencashment / appropriation, in accordance with Clause 9.4 respectivelyArticle 9.2;
b) {If Applicable, the original Additional Performance Security has been encashed and the Concessionaire fails to replenish the same within 30 (thirty) days of such encashment, in accordance to Article 9.4.4.}
c) {If Applicable, the Concessionaire fails to cure, within a Cure Period of 90 (ninety) days, the Concessionaire Default for which whole or part of the Performance Security or the Performance Guarantee, as the case may be, was appropriated;
(c) the Concessionaire does not achieve the latest outstanding Project Milestone due meet its obligations related to on-boarding an Operating Partner in accordance with the provisions of Schedule-G and continues to be in default for 120 (one hundred and twenty) days;Article 0.}
(d) the The Concessionaire abandons or manifests intention to abandon the construction or operation of the Project without the prior written consent of the Authority;
(e) The Concessionaire fails to undertake or complete the construction of the Mandatory Development Obligations in accordance with ARTICLE 12;
f) The Concessionaire fails to achieve COD within 180 (one hundred and eighty days) of Scheduled Completion Date, subject to provisions of Article 12.4.4 and Article 15.1.2;
g) The Concessionaire fails to repair / rectify any breach of the Maintenance Requirements within a period specified in Article 16.5;
h) The Concessionaire has failed to make payment of Project Completion Date does not occur Consideration to the Authority within the period specified in Clause 12.4.3Article 19.5;
(fi) the Punch List items have not been completed within the period set forth in Clause 14.4.1;
(g) the Concessionaire is in breach of the Maintenance Requirements or the Safety Requirements, as the case may be, or commits repeated default in conforming to the Key Performance Indicators;
(h) the The Concessionaire has failed to make any payment to the Authority within the period specified in this Agreement;
(ij) an An Escrow Default has occurred and the Concessionaire fails to cure the default within a Cure Period of 15 (fifteen) daysthe period specific in the Escrow Agreement;
(j) upon occurrence of a Financial Default, the Lenders’ Representative has by notice required the Authority to undertake Suspension or Termination, as the case may be, in accordance with the Substitution Agreement and the Concessionaire fails to cure the default within the Cure Period specified hereinabove;
(k) a A breach of any of the Project Agreements by the Concessionaire has caused a Material Adverse Effect;
(l) the The Concessionaire creates any Encumbrance in breach of this Agreement;
(m) the The Concessionaire repudiates this Agreement or otherwise takes any action or evidences or conveys an intention not to be bound by the Agreement;
(n) a A Change in Ownership has occurred in breach of the provisions of Clause 5.3Article 5.4;
(o) there If the Concessionaire is declared as a wilful defaulter by any of the Scheduled Banks in India;
p) If the Concessionaire is declared unfit/ineligible to continue as a “going concern” or undertake the responsibilities as per this Agreement under an Indian Law;
q) There is a transfer, pursuant to law either of (i) the rights and/or obligations of the Concessionaire under any of the Project Agreements, or of (ii) all or part of the assets or undertaking of the Concessionaire, and such transfer causes a Material Adverse Effect;
(pr) an execution levied on any of the assets of the Concessionaire has caused a Material Adverse Effect;
(q) the The Concessionaire is adjudged bankrupt or insolvent, or if a trustee or receiver is appointed for the Concessionaire or for the whole or material part of its assets that has a material bearing on the Project;
(rs) the The Concessionaire has been, or is in the process of being liquidated, dissolved, wound-wound- up, amalgamated or reconstituted in a manner that would cause, in the reasonable opinion of the Authority, a Material Adverse Effect;
(st) a A resolution for winding up of the Concessionaire is passed, or any petition for winding up of the Concessionaire is admitted by a court of competent jurisdiction and a provisional liquidator or receiver is appointed and such order has not been set aside within 90 (ninety) days of the date thereof or the Concessionaire is ordered to be wound up by Court except for the purpose of amalgamation or reconstruction; provided that, as part of such amalgamation or reconstruction, the entire property, assets and undertaking of the Concessionaire are transferred to the amalgamated or reconstructed entity and that the amalgamated or reconstructed entity has unconditionally assumed the obligations of the Concessionaire under this Agreement and the Project Agreements; and provided that:
(i) a. the amalgamated or reconstructed entity has the capability and operating experience necessary for the performance of its obligations under this Agreement and the Project Agreements;
(ii) b. the amalgamated or reconstructed entity has the financial standing to perform its obligations under this Agreement and the Project Agreements and has a credit worthiness at least as good as that of the Concessionaire as at the Appointed DateCOD; and
(iii) c. each of the Project Agreements remains in full force and effect;
(tu) any Any representation or warranty of the Concessionaire herein contained which is, as of the date hereof, found to be materially false, incorrect or misleading or the Concessionaire is at any time hereafter found to be in breach thereof;
(uv) the The Concessionaire submits to the Authority any statement, notice or other Documentdocument, in written or electronic form, which has a material effect on the Authority's rights, obligations or interests and which is false in material particulars;
(vw) It is found that the Selected Bidder has hidden a Conflict of Interest, as outlined in RFP, during the bidding process;
x) The Concessionaire has failed to fulfil any obligation, for which failure failure, Termination has been specified in this Agreement;; or
(wy) the The Concessionaire commits a default in complying with any other provision of this Agreement if such default causes cause a Material Adverse Effect on the Authority;
(x) the Concessionaire fails to pay the Upfront Premium and Annual Concession Fee in accordance with Article 25; or
(y) the COD of Commercial Complex is not achieved by 2555th day of the Appointed Date or by such other extended period as agreed upon by Authority.
33.1.2 z) The Concessionaire novates and /or assigns the agreement to any third party without any prior approval from the Concessioning Authority
25.1.2 Without prejudice to any other rights or remedies which the Authority may have under this Agreement, upon occurrence of a breach of the terms of this Agreement due to any of the reasons mentioned above in Article 25.1.1:
a) The Authority shall, upon observation of a Concessionaire DefaultDefault as per Article 25.1.1, send a Notice of Breach to the Concessionaire and the Lender’s Representative, intimating the start of the Cure Period, the reason for the breach, and whether it intend to exercise its rights to Suspension as per provisions of Article 25.5;
b) In case the breach is not cured by the Concessionaire within the Cure Period, the Authority shall be entitled to terminate this Agreement by issuing issue a Termination Notice to the Concessionaire; provided that before issuing , 30 (thirty) days from the Termination Notice, the issue of which this Agreement shall stand terminated.
25.1.3 The Authority shall by a notice inform the Concessionaire of its intention to issue such Termination Notice and grant 15 (fifteen) days to the Concessionaire to make a representation, and may after the expiry of such 15 (fifteen) days, whether or not it is in receipt of such representation, issue the Termination Notice, subject to the provisions of Clause 33.1.3.
33.1.3 The Authority shallalso, if there be Senior Lenders, send a copy of its notice Notice of intention to issue a Breach and Termination Notice referred to in Clause 33.1.2 to inform the Lenders’ ' Representative. The Lender’s Representative and grant shall be given 15 (fifteen) days from the Termination Notice to the Lenders’ Representative, for making make a representation on behalf of the Senior Lenders stating the intention to substitute the Concessionaire in accordance with the Substitution Agreement. In the event the Authority receives such representation on behalf of Senior Lenders, it shall, in its discretion, either withhold Termination for a period not exceeding 180 90 (one hundred and eightyninety) days from the date of such representation or exercise its right of Suspension, as the case may be, for enabling the Lenders' Representative to exercise the Senior Lenders’ ' right of substitution in accordance with the Substitution Agreement. Provided that the Lenders’ ' Representative may, instead of exercising the Senior Lenders’ ' right of substitution, procure that the default specified in the notice is cured within the aforesaid period of 180 90 (one hundred and eightyninety) days, and upon such curing thereof, the Authority shall withdraw its notice referred to above and restore all the rights of the Concessionaire. Provided further that upon written request from the Lenders’ Representative and the Concessionaire, the Authority shall extend the aforesaid period of 180 (one hundred and eighty) days by such further period not exceeding 90 (ninety) days, as the Authority may deem appropriate.
Appears in 2 contracts
Samples: Concession Agreement, Concession Agreement
Termination for Concessionaire Default. 33.1.1 31.1.1 Save as otherwise provided in this Agreement, in the event that any of the defaults specified below shall have occurred, and the Concessionaire fails to cure the default within the Cure Period set forth below, or where no Cure Period is specified, then within a Cure Period of 60 (sixty) days, the Concessionaire shall be deemed to be in default of this Agreement (the "“Concessionaire Default"”), unless the default has occurred solely as a result of any breach of this Agreement by the Authority or due to Force Majeure. The defaults referred to herein shall includeinclude the following:
(a) the The Performance Security or the Performance Guarantee, as the case may be, has been encashed and appropriated in accordance with Clause 9.4 respectively 9.2 and the Concessionaire fails to replenish or provide fresh Performance Security or the Performance Guarantee, as the case may be, within a Cure Period of 30 15 (thirtyfifteen) days;
(b) subsequent to the replenishment or furnishing of fresh Performance Security in accordance with Clause 9.2, the Concessionaire fails to meet any Condition Precedent or cure the Performance GuaranteeConcessionaire Default, as the case may be, in accordance with Clause 9.4 respectively, the Concessionaire fails to cure, within a Cure Period of 90 (ninety) days, the Concessionaire Default for which whole or part of the Performance Security or the Performance Guarantee, as the case may be, was appropriated, within a Cure Period of 120 (one hundred and twenty) days;
(c) the Concessionaire does not achieve the latest outstanding Project Milestone due in accordance with the provisions of Schedule-G and continues to be in default for 120 (one hundred and twenty) days;
(d) the The Concessionaire abandons or manifests intention to abandon the construction or operation of the Project without the prior written consent of the Authority;
(e) Project Completion Date COD does not occur within the period specified in Clause 12.4.312.3.3;
(f) the Punch List items have not been completed within the period set forth in Clause 14.4.1;
(g) the Concessionaire is in breach of the Maintenance Requirements or the Safety Requirements, as the case may be, or commits repeated default in conforming to the Key Performance Indicators;
(h) the Concessionaire has failed to make any payment to the Authority within the period specified in this Agreement;
(i) an Escrow Default has occurred and the Concessionaire fails to cure the default within a Cure Period of 15 (fifteen) days;
(j) upon occurrence of a Financial Default, the Lenders’ Representative has by notice required the Authority to undertake Suspension or Termination, as the case may be, in accordance with the Substitution Agreement and the Concessionaire fails to cure the default within the Cure Period specified hereinabove;
(k) a breach of any of the Project Agreements by the Concessionaire has caused a Material Adverse Effect;
(l) the Concessionaire creates any Encumbrance in breach of this Agreement;
(m) the Concessionaire repudiates this Agreement or otherwise takes any action or evidences or conveys an intention not to be bound by the Agreement;
(n) a Change in Ownership has occurred in breach of the provisions of Clause 5.3;
(o) there is a transfer, pursuant to law either of (i) the rights and/or obligations of the Concessionaire under any of the Project Agreements, or of (ii) all or part of the assets or undertaking of the Concessionaire, and such transfer causes a Material Adverse Effect;
(p) an execution levied on any of the assets of the Concessionaire has caused a Material Adverse Effect;
(q) the Concessionaire is adjudged bankrupt or insolvent, or if a trustee or receiver is appointed for the Concessionaire or for the whole or material part of its assets that has a material bearing on the Project;
(r) the Concessionaire has been, or is in the process of being liquidated, dissolved, wound-up, amalgamated or reconstituted in a manner that would cause, in the reasonable opinion of the Authority, a Material Adverse Effect;
(s) a resolution for winding up of the Concessionaire is passed, or any petition for winding up of the Concessionaire is admitted by a court of competent jurisdiction and a provisional liquidator or receiver is appointed and such order has not been set aside within 90 (ninety) days of the date thereof or the Concessionaire is ordered to be wound up by Court a court except for the purpose of amalgamation or reconstruction; provided that, as part of such amalgamation or reconstruction, the entire property, assets and undertaking of the Concessionaire are transferred to the amalgamated or reconstructed entity and that the amalgamated or reconstructed entity has unconditionally assumed the obligations of the Concessionaire under this Agreement and the Project Agreements; and provided that:
(iI) the amalgamated or reconstructed entity has the capability and operating experience necessary for the performance of its obligations under this Agreement and the Project Agreements;
(ii) the amalgamated or reconstructed entity has the financial standing to perform its obligations under this Agreement and the Project Agreements and has a credit worthiness at least as good as that of the Concessionaire as at the Appointed Date; and
(iii) each of the Project Agreements remains in full force and effect;
(t) any representation or warranty of the Concessionaire herein contained which is, as of the date hereof, found to be materially false, incorrect or misleading or the Concessionaire is at any time hereafter found to be in breach thereof;
(u) the Concessionaire submits to the Authority any statement, notice or other Document, in written or electronic form, which has a material effect on the Authority's rights, obligations or interests and which is false in material particulars;
(v) the Concessionaire has failed to fulfil any obligation, for which failure Termination has been specified in this Agreement;
(w) the Concessionaire commits a default in complying with any other provision of this Agreement if such default causes a Material Adverse Effect on the Authority;
(x) the Concessionaire fails to pay the Upfront Premium and Annual Concession Fee in accordance with Article 25; or
(y) the COD of Commercial Complex is not achieved by 2555th day of the Appointed Date or by such other extended period as agreed upon by Authority.
33.1.2 Without prejudice to any other rights or remedies which the Authority may have under this Agreement, upon occurrence of a Concessionaire Default, the Authority shall be entitled to terminate this Agreement by issuing a Termination Notice to the Concessionaire; provided that before issuing the Termination Notice, the Authority shall by a notice inform the Concessionaire of its intention to issue such Termination Notice and grant 15 (fifteen) days to the Concessionaire to make a representation, and may after the expiry of such 15 (fifteen) days, whether or not it is in receipt of such representation, issue the Termination Notice, subject to the provisions of Clause 33.1.3.
33.1.3 The Authority shall, if there be Senior Lenders, send a copy of its notice of intention to issue a Termination Notice referred to in Clause 33.1.2 to inform the Lenders’ Representative and grant 15 (fifteen) days to the Lenders’ Representative, for making a representation on behalf of the Senior Lenders stating the intention to substitute the Concessionaire in accordance with the Substitution Agreement. In the event the Authority receives such representation on behalf of Senior Lenders, it shall, in its discretion, either withhold Termination for a period not exceeding 180 (one hundred and eighty) days from the date of such representation or exercise its right of Suspension, as the case may be, for enabling the Lenders' Representative to exercise the Senior Lenders’ right of substitution in accordance with the Substitution Agreement. Provided that the Lenders’ Representative may, instead of exercising the Senior Lenders’ right of substitution, procure that the default specified in the notice is cured within the aforesaid period of 180 (one hundred and eighty) days, and upon such curing thereof, the Authority shall withdraw its notice referred to above and restore all the rights of the Concessionaire. Provided further that upon written request from the Lenders’ Representative and the Concessionaire, the Authority shall extend the aforesaid period of 180 (one hundred and eighty) days by such further period not exceeding 90 (ninety) days, as the Authority may deem appropriate.
Appears in 2 contracts
Samples: Concession Agreement, Concession Agreement
Termination for Concessionaire Default. 33.1.1 17.1.1 Save as otherwise provided in this Agreement, in the event that any of the defaults specified below shall have occurred, and the Concessionaire fails to cure the default within the Cure Period set forth below, or where no Cure Period is specified, then within a Cure Period of 60 15 (sixtyfifteen) days, the Concessionaire shall be deemed to be in default of this Agreement (the "Concessionaire Event of Default"), ) unless the default such event has occurred solely as a result of any breach a Force Majeure Event or GMCBL Event of this Agreement by the Authority or due to Force Majeure. The defaults referred to herein shall includeDefault:
(a) At any time during the Performance Security or the Performance Guarantee, as the case may be, has been encashed and appropriated in accordance with Clause 9.4 respectively and the Concessionaire fails to replenish or provide fresh Performance Security or the Performance Guarantee, as the case may be, within a Cure Period of 30 (thirty) days;
(b) subsequent to the replenishment or furnishing of fresh Performance Security or the Performance Guarantee, as the case may be, in accordance with Clause 9.4 respectivelyConcession Period, the Concessionaire fails to cure, within a Cure Period adhere to the Maintenance Obligations in terms of 90 (ninety) days, the Concessionaire Default for which whole or part of the Performance Security or the Performance Guarantee, as the case may be, was appropriatedrequirements set out in schedule 3 and 4;
(cb) the Concessionaire does not achieve the latest outstanding Project Milestone due in accordance with the provisions of Schedule-G and continues to be in default for 120 (one hundred and twenty) days;
(d) the Concessionaire abandons or manifests intention to abandon the construction or operation of the Project without the prior written consent of the Authority;
(e) Project Completion Date does not occur within the period specified in Clause 12.4.3;
(f) the Punch List items have not been completed within the period set forth in Clause 14.4.1;
(g) the The Concessionaire is in breach Material Breach of the Maintenance Requirements or the Safety Requirements, as the case may be, or commits repeated default in conforming to the Key Performance Indicators;
(h) the Concessionaire has failed to make any payment to the Authority within the period specified in of its obligations under this Agreement;
(i) an Escrow Default has occurred and the Concessionaire fails to cure the default within a Cure Period of 15 (fifteen) days;
(j) upon occurrence of a Financial Default, the Lenders’ Representative has by notice required the Authority to undertake Suspension or Termination, as the case may be, in accordance with the Substitution Agreement and the Concessionaire fails to cure the default within the Cure Period specified hereinabovesame has not been remedied for fifteen (15) days or such time provided by GMCBL;
(kc) a breach of any of The Concessionaire has abandoned the Project Agreements Site(s);
d) A resolution has been passed by the Concessionaire has caused a Material Adverse Effect;
(l) the Concessionaire creates any Encumbrance in breach of this Agreement;
(m) the Concessionaire repudiates this Agreement or otherwise takes any action or evidences or conveys an intention not to be bound by the Agreement;
(n) a Change in Ownership has occurred in breach of the provisions of Clause 5.3;
(o) there is a transfer, pursuant to law either of (i) the rights and/or obligations shareholders of the Concessionaire under any of the Project Agreements, or of (ii) all or part of the assets or undertaking for voluntary winding up/ dissolution of the Concessionaire, and such transfer causes a Material Adverse Effect;
(pe) an execution levied on any of the assets of the Concessionaire has caused a Material Adverse Effect;
(q) the Concessionaire is adjudged bankrupt or insolvent, or if a trustee or receiver is appointed for the Concessionaire or for the whole or material part of its assets that has a material bearing on the Project;
(r) the Concessionaire has been, or is in the process of being liquidated, dissolved, wound-up, amalgamated or reconstituted in a manner that would cause, in the reasonable opinion of the Authority, a Material Adverse Effect;
(s) a resolution for winding up of the Concessionaire is passed, or any Any petition for winding up of the Concessionaire is has been admitted by a court of competent jurisdiction and a liquidator or provisional liquidator or receiver is has been appointed and such order has not been set aside within 90 (ninety) days of the date thereof or the Concessionaire is has been ordered to be wound up by Court of competent jurisdiction, except for the purpose of amalgamation or reconstruction; reconstruction with the prior consent of GMCBL, provided that, as part of such amalgamation or reconstruction, the entire property, assets reconstruction and undertaking of the Concessionaire are transferred to the amalgamated or reconstructed entity and that the amalgamated or reconstructed entity has unconditionally assumed the all surviving obligations of the Concessionaire under this Agreement and the Project Agreements; and provided that:Agreement;
(if) the amalgamated or reconstructed entity The Concessionaire has the capability and operating experience necessary for the performance of its obligations under unlawfully repudiated this Agreement and the Project Agreements;
(ii) the amalgamated or reconstructed entity has the financial standing to perform its obligations under this Agreement and the Project Agreements and has a credit worthiness at least as good as that of the Concessionaire as at the Appointed Date; and
(iii) each of the Project Agreements remains in full force and effect;
(t) any representation or warranty of the Concessionaire herein contained which is, as of the date hereof, found otherwise expressed an intention not to be materially false, incorrect or misleading or the Concessionaire is at any time hereafter found to be in breach thereof;
(u) the Concessionaire submits to the Authority any statement, notice or other Document, in written or electronic form, which has a material effect on the Authority's rights, obligations or interests and which is false in material particulars;
(v) the Concessionaire has failed to fulfil any obligation, for which failure Termination has been specified in bound by this Agreement;
(wg) the The Concessionaire commits a default in complying with has suffered an attachment levied on any other provision of this Agreement if such default causes its assets which has caused or is likely to cause a Material Adverse Effect on the Authoritycarrying out of its business by the Concessionaire in the Project Site(s)/ Project Facility and such attachment has continued for a period exceeding fifteen (15) days.
h) The Concessionaire has failed to pay Annual License Fee or more than ten (10) days elapsed from the due date (payment date) for Annual License Fee.
i) The Concessionaire has created any encumbrance on any Project Facility in favour of any Person save as otherwise expressly permitted under this Agreement.
j) The Concessionaire is using Project Facility for any purpose other than as provided in the Agreement.
k) Any representation made or warranty given by the Concessionaire under this Agreement is found to be false or misleading;
(x) the Concessionaire fails to pay the Upfront Premium and Annual Concession Fee in accordance with Article 25; or
(y) the COD of Commercial Complex is not achieved by 2555th day of the Appointed Date or by such other extended period as agreed upon by Authority.
33.1.2 17.1.2 Without prejudice to any other rights or remedies which the Authority GMCBL may have under this Agreement, upon occurrence of a Concessionaire Event of Default, the Authority GMCBL shall be entitled to terminate this Agreement by issuing a Termination Notice to the Concessionaire; provided that before issuing the Termination Notice, the Authority GMCBL shall by a notice inform the Concessionaire of its intention to issue such Termination Notice and grant 15 fifteen (fifteen15) days to the Concessionaire to make a representation, and may after the expiry of such 15 fifteen (fifteen15) days, whether or not it is in receipt of such representation, issue the Termination Notice, subject to the provisions of Clause 33.1.3clause 17.1.3.
33.1.3 The Authority shall, if there be Senior Lenders, send a copy of its notice of intention to issue a Termination Notice referred to in Clause 33.1.2 to inform the Lenders’ Representative and grant 15 (fifteen) days to the Lenders’ Representative, for making a representation on behalf of the Senior Lenders stating the intention to substitute the Concessionaire in accordance with the Substitution Agreement. In the event the Authority receives such representation on behalf of Senior Lenders, it shall, in its discretion, either withhold Termination for a period not exceeding 180 (one hundred and eighty) days from the date of such representation or exercise its right of Suspension, as the case may be, for enabling the Lenders' Representative to exercise the Senior Lenders’ right of substitution in accordance with the Substitution Agreement. Provided that the Lenders’ Representative may, instead of exercising the Senior Lenders’ right of substitution, procure that the default specified in the notice is cured within the aforesaid period of 180 (one hundred and eighty) days, and upon such curing thereof, the Authority shall withdraw its notice referred to above and restore all the rights of the Concessionaire. Provided further that upon written request from the Lenders’ Representative and the Concessionaire, the Authority shall extend the aforesaid period of 180 (one hundred and eighty) days by such further period not exceeding 90 (ninety) days, as the Authority may deem appropriate.
Appears in 2 contracts
Samples: Concession Agreement, Concession Agreement
Termination for Concessionaire Default. 33.1.1 25.1.1 Save as otherwise provided in this Agreement, in the event that any of the defaults specified below shall have occurred, and the Concessionaire fails to cure the default within the Cure Period set forth below, or where no Cure Period is specified, then within a Cure Period of 60 90 (sixtyninety) days, the Concessionaire shall be deemed to be ‘in default of this Agreement (the "Concessionaire Default"), unless the default has occurred solely as a result of any breach of this Agreement by the Authority or due to Force Majeure. The defaults referred to herein shall include:
(a) the Performance Security or the Performance Guarantee, as the case may be, has been encashed and appropriated in accordance with Clause 9.4 respectively ARTICLE 9 and the Concessionaire fails to replenish or provide fresh Performance Security or the Performance Guarantee, as the case may be, within a Cure Period of 30 (thirty) days;
(b) subsequent to the replenishment or furnishing of fresh Performance Security or the Performance Guarantee, as the case may be, in accordance with Clause 9.4 respectively, the Concessionaire fails to cure, within a Cure Period of 90 (ninety) days, the Concessionaire Default for which whole or part of the Performance Security or the Performance Guarantee, as the case may be, was appropriated;
(c) the Concessionaire does not achieve the latest outstanding Project Milestone due in accordance with the provisions of Schedule-G and continues to be in default for 120 (one hundred and twenty) days;
(d) the Concessionaire abandons or manifests intention to abandon the construction or operation of the Project without the prior written consent of the Authority;
(e) Project Completion Date does not occur within the period specified in Clause 12.4.3;
(f) the Punch List items have not been completed within the period set forth in Clause 14.4.1;
(gc) the Concessionaire is in breach fails to undertake or complete the construction of the Maintenance Requirements or the Safety Requirements, as the case may be, or commits repeated default Mandatory Development Obligations in conforming to the Key Performance Indicatorsaccordance with ARTICLE 12;
(hd) the Concessionaire fails to achieve COD in accordance with ARTICLE 15;
e) the Concessionaire has failed to make pay any payment to the Authority within the period specified in this Agreement;
(if) an Escrow Default has occurred and the Concessionaire fails to cure the default within a Cure Period of 15 (fifteen) days;
(j) upon occurrence of a Financial Default, the Lenders’ Representative has by notice required the Authority to undertake Suspension or Termination, as the case may be, in accordance with the Substitution Agreement and the Concessionaire fails to cure the default within the Cure Period specified hereinabove;
(kg) a breach of any of the Project Agreements by the Concessionaire has caused a Material Adverse Effect;
(lh) the Concessionaire creates any Encumbrance in breach of this Agreement;
(mi) the Concessionaire repudiates this Agreement or otherwise takes any action or evidences or conveys an intention not to be bound by the Agreement;
(nj) a Change in Ownership has occurred in breach of the provisions of Clause 5.3Article 5.4;
(ok) If the Concessionaire is declared as a wilful defaulter by any of the Scheduled Banks in India;
l) If the Concessionaire is declared unfit/ineligible to continue as a “going concern” or undertake the responsibilities as per this Agreement under an Indian Law;
m) there is a transfer, pursuant to law either of (i) the rights and/or obligations of the Concessionaire under any of the Project Agreements, or of (ii) all or part of the assets or undertaking of the Concessionaire, and such transfer causes a Material Adverse Effect;
(p) an execution levied on any of the assets of the Concessionaire has caused a Material Adverse Effect;
(qn) the Concessionaire is adjudged bankrupt or insolvent, or if a trustee or receiver is appointed for the Concessionaire or for the whole or material part of its assets that has a material bearing on the Project;
(ro) the Concessionaire has been, or is in the process of being liquidated, dissolved, wound-wound- up, amalgamated or reconstituted in a manner that would cause, in the reasonable opinion of the Authority, a Material Adverse Effect;
(sp) a resolution for winding up of the Concessionaire is passed, or any petition for winding up of the Concessionaire is admitted by a court of competent jurisdiction and a provisional liquidator or receiver is appointed and such order has not been set aside within 90 (ninety) days of the date thereof or the Concessionaire is ordered to be wound up by Court except for the purpose of amalgamation or reconstruction; provided that, as part of such amalgamation or reconstruction, the entire property, assets and undertaking of the Concessionaire are transferred to the amalgamated or reconstructed entity and that the amalgamated or reconstructed entity has unconditionally assumed the obligations of the Concessionaire under this Agreement and the Project Agreements; and provided that:
(i) a. the amalgamated or reconstructed entity has the capability and operating experience necessary for the performance of its obligations under this Agreement and the Project Agreements;
(ii) b. the amalgamated or reconstructed entity has the financial standing to perform its obligations under this Agreement and the Project Agreements and has a credit worthiness at least as good as that of the Concessionaire as at the Appointed DateCOD; and
(iii) c. each of the Project Agreements remains in full force and effect;
(tq) any representation or warranty of the Concessionaire herein contained which is, as of the date hereof, found to be materially false, incorrect or misleading or the Concessionaire is at any time hereafter found to be in breach thereof;
(ur) the Concessionaire submits to the Authority any statement, notice or other Documentdocument, in written or electronic form, which has a material effect on the Authority's rights, obligations or interests and which is false in material particulars;
(vs) the Concessionaire has failed to fulfil any obligation, for which failure failure, Termination has been specified in this Agreement;; or
(wt) the Concessionaire commits a default in complying with any other provision of this Agreement if such default causes cause a Material Adverse Effect on the Authority;
(x) the Concessionaire fails to pay the Upfront Premium and Annual Concession Fee in accordance with Article 25; or
(y) the COD of Commercial Complex is not achieved by 2555th day of the Appointed Date or by such other extended period as agreed upon by Authority.
33.1.2 u) The Concessionaire novates and /or assigns the agreement to any third party without any prior approval from the Concessioning Authority
25.1.2 Without prejudice to any other rights or remedies which the Authority may have under this Agreement, upon occurrence of a Concessionaire Default, the Authority shall be entitled to terminate this Agreement by issuing a Termination Notice to the Concessionaire; provided that before issuing the Termination Notice, the Authority shall by a notice inform the Concessionaire of its intention to issue such Termination Notice and grant 15 30 (fifteenthirty) days to the Concessionaire to make a representation, and may after the expiry of such 15 30 (fifteenthirty) days, whether or not it is in receipt of such representation, issue the Termination Notice, subject to the provisions of Clause 33.1.3.
33.1.3 25.1.3 The Authority shall, if there be Senior Lenders, send a copy of its notice of intention to issue a Termination Notice referred to in Clause 33.1.2 Article 25.1.2 to inform the Lenders’ ' Representative and grant 15 (fifteen) days to the Lenders’ ' Representative, for making a representation on behalf of the Senior Lenders stating the intention to substitute the Concessionaire in accordance with the Substitution Agreement. In the event the Authority receives such representation on behalf of Senior Lenders, it shall, in its discretion, either withhold Termination for a period not exceeding 180 (one hundred and eighty) days from the date of such representation or exercise its right of Suspension, as the case may be, for enabling the Lenders' Representative to exercise the Senior Lenders’ ' right of substitution in accordance with the Substitution Agreement. : Provided that the Lenders’ ' Representative may, instead of exercising the Senior Lenders’ ' right of substitution, procure that the default specified in the notice is cured within the aforesaid period of 180 (one hundred and eighty) days, and upon such curing thereof, the Authority shall withdraw its notice referred to above and restore all the rights of the Concessionaire. : Provided further that upon written request from the Lenders’ ' Representative and the Concessionaire, the Authority shall extend the aforesaid period of 180 (one hundred and eighty) days by such further period not exceeding 90 (ninety) days, as the Authority may deem appropriate.
Appears in 2 contracts
Samples: Concession Agreement, Concession Agreement
Termination for Concessionaire Default. 33.1.1 Save as otherwise provided in this Agreement, in the event that any of the defaults specified below shall have occurred, and the Concessionaire fails to cure the default within the Cure Period set forth below, or where no Cure Period is specified, then within a Cure Period of 60 (sixty) days, the Concessionaire shall be deemed to be in default of this Agreement (the "“Concessionaire Default"”), unless the default has occurred solely as a result of any breach of this Agreement by the Authority or due to Force Majeure. The defaults referred to herein shall include:
(a) include the following: the Performance Security or the Performance Guarantee, as the case may be, has been encashed and appropriated in accordance with Clause 9.4 respectively 9.2 and the Concessionaire fails to replenish or provide fresh Performance Security or the Performance Guarantee, as the case may be, within a Cure Period of 30 15 (thirtyfifteen) days;
(b) ; subsequent to the replenishment or furnishing of fresh Performance Security in accordance with Clause 9.2, the Concessionaire fails to meet any Condition Precedent or cure the Performance GuaranteeConcessionaire Default, as the case may be, in accordance with Clause 9.4 respectively, the Concessionaire fails to cure, within a Cure Period of 90 (ninety) days, the Concessionaire Default for which whole or part of the Performance Security or the Performance Guarantee, as the case may be, was appropriated;
, within a Cure Period of 120 (cone hundred and twenty) days; the Concessionaire does not achieve the latest outstanding Project Milestone due in accordance with the provisions of Schedule-G and continues to be in default for 120 60 (one hundred and twentysixty) days;
(d) ; the Concessionaire abandons or manifests intention to abandon the construction or operation of the Project without the prior written consent of the Authority;
(e) Project Completion Date ; COD does not occur within the period specified in Clause 12.4.3;
(f) 12.3.3; the Punch List items have not been completed within the period set forth in Clause 14.4.1;
(g) ; the Concessionaire is in breach of the Maintenance Requirements or the Safety Requirements, as the case may be, or commits repeated default in conforming to the Key Performance Indicators;
(h) ; the Concessionaire has failed to make any payment including Annual Concession Fee to the Authority within the period specified in this Agreement;
(i) ; an Escrow Default has occurred and the Concessionaire fails to cure the default within a Cure Period of 15 (fifteen) days;
(j) ; upon occurrence of a Financial Default, the Lenders’ Representative has by notice required the Authority to undertake Suspension or Termination, as the case may be, in accordance with the Substitution Agreement and the Concessionaire fails to cure the default within the Cure Period specified hereinabove;
(k) ; a breach of any of the Project Agreements by the Concessionaire has caused a Material Adverse Effect;
(l) ; the Concessionaire creates any Encumbrance in breach of this Agreement;
(m) ; the Concessionaire repudiates this Agreement or otherwise takes any action or evidences or conveys an intention not to be bound by the Agreement;
(n) ; a Change in Ownership has occurred in breach of the provisions of Clause 5.3;
(o) ; there is a transfer, pursuant to law either of (i) the rights and/or obligations of the Concessionaire under any of the Project Agreements, or of (ii) all or part of the assets or undertaking of the Concessionaire, and such transfer causes a Material Adverse Effect;
(p) ; an execution levied on any of the assets of the Concessionaire has caused a Material Adverse Effect;
(q) ; the Concessionaire is adjudged bankrupt or insolvent, or if a trustee or receiver is appointed for the Concessionaire or for the whole or material part of its assets that has a material bearing on the Project;
(r) ; the Concessionaire has been, or is in the process of being liquidated, dissolved, wound-up, amalgamated or reconstituted in a manner that would cause, in the reasonable opinion of the Authority, a Material Adverse Effect;
(s) ; occurrence of any Insolvency Event; the Concessionaire has been or is in the process of being amalgamated or reconstituted in a resolution for winding up manner that would cause, in the reasonable opinion of the Concessionaire is passedAuthority, or any petition for winding up of the Concessionaire is admitted by a court of competent jurisdiction and a provisional liquidator or receiver is appointed and such order has not been set aside within 90 (ninety) days of the date thereof or the Concessionaire is ordered to be wound up by Court except for the purpose of amalgamation or reconstruction; Material Adverse Effect provided that, as part of such amalgamation or reconstruction, the entire property, assets and undertaking of the Concessionaire are transferred to the amalgamated or reconstructed entity and that the amalgamated or reconstructed entity has unconditionally assumed the obligations of the Concessionaire under this Agreement and the Project Agreements; and provided that:
(i) : the amalgamated or reconstructed entity has the capability and operating experience necessary for the performance of its obligations under this Agreement and the Project Agreements;
(ii) ; the amalgamated or reconstructed entity has the financial standing to perform its obligations under this Agreement and the Project Agreements and has a credit worthiness at least as good as that of the Concessionaire as at the Appointed Date; and
(iii) and each of the Project Agreements remains in full force and effect;
(t) ; any representation or warranty of the Concessionaire herein contained which is, as of the date hereof, found to be materially false, incorrect or misleading or the Concessionaire is at any time hereafter found to be in breach thereof;
(u) ; the Concessionaire submits to the Authority any statement, notice or other Documentdocument, in written or electronic form, which has a material effect on the Authority's ’s rights, obligations or interests and which is false in material particulars;
(v) ; the Concessionaire has failed to fulfil fulfill any obligation, for which failure Termination has been specified in this Agreement;
(w) ; the Concessionaire issues a Termination Notice in violation of this Agreement; or the Concessionaire commits a default in complying with any other provision of this Agreement if such default causes a Material Adverse Effect on the Authority;
(x) the Concessionaire fails to pay the Upfront Premium and Annual Concession Fee in accordance with Article 25; or
(y) the COD of Commercial Complex is not achieved by 2555th day of the Appointed Date or by such other extended period as agreed upon by Authority.
33.1.2 . Without prejudice to any other rights or remedies which the Authority may have under this Agreement, upon occurrence of a Concessionaire Default, the Authority shall be entitled to terminate this Agreement by issuing a Termination Notice to the Concessionaire; provided that before issuing the Termination Notice, the Authority shall shall, by a notice notice, inform the Concessionaire of its intention to issue such Termination Notice and grant 15 (fifteen) days to the Concessionaire to make a representation, and may after the expiry of such 15 (fifteen) days, whether or not it is in receipt of such representation, issue the Termination Notice, subject to the provisions of Clause 33.1.3.
33.1.3 30.1.3. The Authority shall, if there be Senior Lenders, send a copy of its notice of intention to issue a Termination Notice referred to in Clause 33.1.2 30.1.2 to inform the LendersXxxxxxx’ Representative and grant 15 (fifteen) days to the Lenders’ Representative, for making a representation on behalf of the Senior Lenders stating the intention to substitute the Concessionaire in accordance with the Substitution Agreement. In the event the Authority receives such representation on behalf of Senior Lenders, it shall, in its discretion, either withhold Termination for a period not exceeding 180 (one hundred and eighty) days from the date of such representation or exercise its right of Suspension, as the case may be, for enabling the Lenders' ’ Representative to exercise the Senior Lenders’ ' right of substitution in accordance with the Substitution Agreement. : Provided that the Lenders’ Representative may, instead of exercising the Senior Lenders’ right of substitution, procure that the default specified in the notice is cured within the aforesaid period of 180 (one hundred and eighty) days, and upon such curing thereof, the Authority shall withdraw its notice referred to above and restore all the rights of the Concessionaire. Provided further that upon written request from the Lenders’ Representative and the Concessionaire, the Authority shall extend the aforesaid period of 180 (one hundred and eighty) days by such further period not exceeding 90 (ninety) days, as the Authority may deem appropriate. Termination for Authority Default In the event that any of the defaults specified below shall have occurred, and the Authority fails to cure such default within a Cure Period of 90 (ninety) days or such longer period as has been expressly provided in this Agreement, the Authority shall be deemed to be in default of this Agreement (the “Authority Default”) unless the default has occurred as a result of any breach of this Agreement by the Concessionaire or due to Force Majeure. The defaults referred to herein shall include the following: The Authority commits a material default in complying with any of the provisions of this Agreement and such default has a Material Adverse Effect on the Concessionaire; The Authority has failed to make any payment to the Concessionaire within the period specified in this Agreement; The Authority fails to provide, within a period of 180 (one hundred and eighty days) from the Appointed Date, the Right of Way and other statutory clearances required for construction of the Project; or The Authority repudiates this Agreement or otherwise takes any action that amounts to or manifests an irrevocable intention not to be bound by this Agreement. Without prejudice to any other right or remedy which the Concessionaire may have under this Agreement, upon occurrence of an Authority Default, the Concessionaire shall, subject to the provisions of the Substitution Agreement, be entitled to terminate this Agreement by issuing a Termination Notice to the Authority; provided that before issuing the Termination Notice, the Concessionaire shall by a notice inform the Authority of its intention to issue the Termination Notice and grant 15 (fifteen) days to the Authority to make a representation, and may after the expiry of such 15 (fifteen) days, whether or not it is in receipt of such representation, issue the Termination Notice. Termination Payment Upon Termination on account of a Concessionaire Default during the Operation Period, the Authority shall pay to the Concessionaire, by way of Termination Payment, an amount equal to 90% (ninety percent) of Debt Due less Insurance Cover; provided that if any insurance claims forming part of the Insurance Cover are not admitted and paid, then 80% (eighty percent) of such unpaid claims shall be included in the computation of Debt Due. For the avoidance of doubt, the Concessionaire herby acknowledges that no Termination Payment shall be due or payable on account of a Concessionaire Default occurring prior to COD. Upon Termination on account of an Authority Default, the Authority shall pay to the Concessionaire, by way of Termination Payment, an amount equal to: Debt Due; and 150% (one hundred and fifty percent) of the Adjusted Equity. Termination Payment shall become due and payable to the Concessionaire within 30 (thirty) days of a demand being made by the Concessionaire to the Authority with the necessary particulars, and in the event of any delay, the Authority shall pay interest at a rate equal to 3% (three per cent) above the daily average Bank Rate on the amount of Termination Payment remaining unpaid; provided that such delay shall not exceed 90 (ninety) days. For the avoidance of doubt, it is expressly agreed that Termination Payment shall constitute full discharge by the Authority of its payment obligations in respect thereof hereunder. The Concessionaire expressly agrees that Termination Payment under this Article 30 shall constitute a full and final settlement of all claims of the Concessionaire on account of Termination of this Agreement for any reason whatsoever and that the Concessionaire or any shareholder thereof shall not have any further right or claim under any law, treaty, convention, contract or otherwise. Other rights and obligations of the Authority Upon Termination for any reason whatsoever, the Authority shall: take possession and control of the Project forthwith; take possession and control of all materials, stores, implements, construction plants and equipment on or about the Site; be entitled to restrain the Concessionaire and any person claiming through or under the Concessionaire from entering upon the Site or any part of the Project; require the Concessionaire to comply with the Divestment Requirements set forth in Clause 31.1; and succeed upon election by the Authority, without the necessity of any further action by the Concessionaire, to the interests of the Concessionaire under such of the Project Agreements as the Authority may in its discretion deem appropriate, and shall upon such election be liable to the Contractors only for compensation accruing and becoming due and payable to them under the terms of their respective Project Agreements from and after the date the Authority elects to succeed to the interests of the Concessionaire. For the avoidance of doubt, the Concessionaire acknowledges and agrees that all sums claimed by such Contractors as being due and owing for works and services performed or accruing on account of any act, omission or event prior to such date shall constitute debt between the Concessionaire and such Contractors, and the Authority shall not in any manner be liable for such sums. It is further agreed that in the event the Authority elects to cure any outstanding defaults under such Project Agreements, the amount expended by the Authority for this purpose shall be deducted from the Termination Payment. Survival of Rights Notwithstanding anything to the contrary contained in this Agreement, but subject to the provisions of Clause 30.3.4, any Termination pursuant to the provisions of this Agreement shall be without prejudice to the accrued rights of either Party including its right to claim and recover money damages, insurance proceeds, security deposits, and other rights and remedies, which it may have in law or contract. All rights and obligations of either Party under this Agreement, including Termination Payments and Divestment Requirements, shall survive the Termination to the extent such survival is necessary for giving effect to such rights and obligations.
Appears in 1 contract
Samples: Concession Agreement
Termination for Concessionaire Default. 33.1.1 Save as otherwise provided in this Agreement, in the event that any of the defaults specified below shall have occurred, and the Concessionaire fails to cure the default within the Cure Period set forth below, or where no Cure Period is specified, then specified within a Cure Period of 60 (sixty) days, the Concessionaire shall be deemed to be in default of this Agreement (the "“Concessionaire Default"), ”) unless the default has occurred solely as a result of any breach of this Agreement by the Authority or due to Force Majeure. The defaults referred to herein shall include:
(a) include the following: the Performance Security or the Performance Guarantee, as the case may be, has been encashed and appropriated in accordance with Clause 9.4 respectively 9 and the Concessionaire fails to replenish or provide fresh Performance Security or the Performance Guarantee, as the case may be, performance security within a Cure Period of 30 15 (thirtyfifteen) days;
(b) ; subsequent to the replenishment or furnishing of fresh Performance Security or the Performance Guarantee, as the case may be, in accordance with Clause 9.4 respectively9.2, the Concessionaire fails to cure, within a Cure Period of 90 60 (ninetysixty) days, the Concessionaire Default for which whole or part of the Performance Security or the Performance Guarantee, as the case may be, was appropriated;
(c) the Concessionaire does not achieve the latest outstanding Project Milestone due in accordance with the provisions of Schedule-G and continues to be in default for 120 (one hundred and twenty) days;
(d) ; the Concessionaire abandons or manifests intention to abandon the construction or operation and maintenance of the Project Highway without the prior written consent of the Authority;
; the Concessionaire fails to roll over, xxxxx and furnish new bank guarantee Performance Security subject to and in accordance with terms of Clause 9, at least 3 (ethree) Project Completion Date does not occur within the period specified in Clause 12.4.3;
(f) the Punch List items have not been completed within the period set forth in Clause 14.4.1;
(g) months prior to expiry of subsisting bank guarantee; the Concessionaire is in breach of the Maintenance Requirements or the Safety Requirements, as the case may be, or commits repeated default in conforming to the Key Performance Indicators;
(h) ; the Concessionaire has failed to make any payment to the Authority within the period specified in this Agreement;
(i) an Escrow Default has occurred and the Concessionaire fails to cure the default within a Cure Period of 15 (fifteen) days;
(j) ; upon occurrence of a Financial Default, the Lenders’ Representative has by notice required the Authority to undertake Suspension or Termination, as the case may be, in accordance with the Substitution Agreement and the Concessionaire fails to cure the default within the Cure Period specified hereinabove;
(k) ; a breach of any of the Project Agreements by the Concessionaire has caused a Material Adverse Effect;
(l) ; the Concessionaire creates any Encumbrance in breach of this Agreement;
(m) ; the Concessionaire repudiates this Agreement or otherwise takes any action or evidences or conveys an intention not to be bound by the Agreement;
(n) ; a Change in Ownership has occurred in breach of the provisions of Clause 5.3;
(o) ; there is a transfer, pursuant to law either of (i) the rights and/or obligations of the Concessionaire under any of the Project Agreements, or of (ii) all or part of the assets or undertaking of the Concessionaire, and such transfer causes a Material Adverse Effect;
(p) ; an execution levied on any of the assets of the Concessionaire has caused a Material Adverse Effect;
(q) ; the Concessionaire is adjudged bankrupt or insolvent, or if a trustee or receiver is appointed for the Concessionaire or for the whole or material part of its assets that has a material bearing on the Project;
(r) ; the Concessionaire has been, or is in the process of being liquidated, dissolved, wound-up, amalgamated or reconstituted in a manner that would cause, in the reasonable opinion of the Authority, a Material Adverse Effect;
(s) ; a resolution for winding up of the Concessionaire is passed, passed or any petition for winding up of the Concessionaire is admitted by a court of competent jurisdiction and a provisional liquidator or receiver is appointed and such order has not been set aside within 90 (ninety) days of the date thereof or the Concessionaire is ordered to be wound up by Court except for the purpose of amalgamation or reconstruction; provided that, as part of such amalgamation or reconstruction, the entire property, assets and undertaking of the Concessionaire are transferred to the amalgamated or reconstructed entity and that the amalgamated or reconstructed entity has unconditionally assumed the obligations of the Concessionaire under this Agreement and the Project Agreements; and provided that:
(i) : the amalgamated or reconstructed entity has the capability and operating experience necessary for the performance of its obligations under this Agreement and the Project Agreements;
(ii) ; the amalgamated or reconstructed entity has the financial standing to perform its obligations under this Agreement and the Project Agreements and has a credit worthiness at least as good as that of the Concessionaire as at the Appointed Date; and
(iii) and each of the Project Agreements remains in full force and effect;
(t) ; any representation or warranty of the Concessionaire herein contained which is, as of the date hereof, found to be materially false, incorrect or misleading or the Concessionaire is at any time hereafter found to be in breach thereof;
(u) misleading; the Concessionaire submits to the Authority any statement, notice or other Documentdocument, in written or electronic form, which has a material effect on the Authority's ’s rights, obligations or interests and which is false in material particulars;
(v) ; the Concessionaire has failed to fulfil any obligation, for which failure Termination has been specified in this Agreement;
(w) ; the Concessionaire commits a default in complying with any other provision of this Agreement if such default causes a Material Adverse Effect on the Authority;
(x) ; an Escrow Default has occurred, and the Concessionaire fails to pay cure the Upfront Premium and Annual Concession Fee in accordance with Article 25default within a Cure Period of 15 (fifteen) days; or
(y) the COD of Commercial Complex is not achieved by 2555th day of the Appointed Date or by such other extended period as agreed upon by Authority.
33.1.2 Termination Notice Without prejudice to any other rights right or remedies which the Authority may have under this Agreement, upon occurrence of a Concessionaire Default, the Authority shall be entitled to terminate this Agreement by issuing a Termination Notice to the Concessionaire; provided that before issuing the Termination Notice, the Authority shall by issue a notice inform the Concessionaire of its intention to terminate this Agreement (“Notice of Intention to Terminate”) with a copy thereof to the Lenders. Immediately upon the issue such Termination by Authority of the Notice of Intention to Terminate, the Lenders shall have the right to nominate an entity to replace the Concessionaire and grant 15 perform the Concessionaire's obligations hereunder (fifteenthe “Substitute Entity”). The Concessionaire shall procure that Lenders shall notify Authority about whether they are exercising their right of substitution within 60 (sixty) days to the Concessionaire to make a representation, and may after the expiry of such 15 (fifteen) days, whether or not it is in receipt of such representationNotice of Intention to Terminate, issue the Termination Notice, subject to the provisions of Clause 33.1.3.
33.1.3 The Authority shall, if there be Senior Lenders, send a copy of its notice of intention to issue a Termination Notice referred to in Clause 33.1.2 to inform or the Lenders’ Representative Notice of Default (as defined in the Substitution Agreement). Any such Substitute Entity shall have the legal, financial and grant 15 (fifteen) days technical capability reasonably necessary to perform the Lenders’ Representative, for making a representation on behalf obligations of the Senior Lenders stating the intention to substitute the Concessionaire in accordance with the terms of this Agreement. Any such Substitute Entity shall be nominated in accordance with the procedure as set out in the Substitution Agreement. In the event the Authority receives such representation on behalf of Senior Lenders, it shall, in its discretion, either withhold Termination for a period event: Lenders have chosen not exceeding 180 (one hundred and eighty) days from the date of such representation or exercise its right of Suspension, as the case may be, for enabling the Lenders' Representative to exercise the Senior Lenders’ right of substitution in accordance with the Substitution Agreement. Provided that the Lenders’ Representative may, instead of exercising the Senior Lenders’ their right of substitution, procure that or a Substitute Entity has not been nominated by the default specified Lenders within time period set forth in the notice is cured Substitution Agreement; or a nominated Substitute Entity/ alternate Substitute Entity has not been approved by Authority within the aforesaid time period of 180 (one hundred and eighty) days, and upon such curing thereof, set forth in the Authority shall withdraw its notice referred to above and restore all the rights of the Concessionaire. Provided further that upon written request from the Lenders’ Representative and the Concessionaire, the Authority shall extend the aforesaid period of 180 (one hundred and eighty) days by such further period not exceeding 90 (ninety) days, as the Authority may deem appropriate.Substitution Agreement; or
Appears in 1 contract
Samples: Concession Agreement
Termination for Concessionaire Default. 33.1.1 26.1.1 Save as otherwise provided in this Agreement, in the event that any of the defaults specified below shall have occurred, and the Concessionaire fails to cure the default within the Cure Period set forth below, or where no Cure Period is specified, then within a Cure Period of 60 (sixty) days, the Concessionaire shall be deemed to be in default of this Agreement (the "a “Concessionaire Default"”), unless the default has occurred solely as a result of any breach of this Agreement by the Authority or due to Force Majeure. The defaults referred to herein shall include:
(a) the Performance Security or the Performance Guarantee, as the case may be, has been encashed and appropriated in accordance with Clause 9.4 respectively 9.3 and the Concessionaire fails to replenish or provide fresh Performance Security or the Performance Guarantee, as the case may be, within a Cure Period of 30 (thirty) days;
(b) subsequent to the replenishment or furnishing of fresh Performance Security or the Performance Guarantee, as the case may be, in accordance with Clause 9.4 respectively9.3, the Concessionaire fails to cure, within a Cure Period of 90 (ninety) days, the Concessionaire Default for which whole or part of the Performance Security or the Performance Guarantee, as the case may be, was appropriated;
(c) the Concessionaire does not achieve the latest outstanding Project Milestone due in accordance with the provisions of Schedule-G and continues to be in default for 120 90 (one hundred and twentyninety) days;
(d) the Concessionaire abandons or manifests intention to abandon the construction or operation of the Project without the prior written consent of the Authority;
(e) Project Completion Date does not occur within the period specified in Clause 12.4.311.4.3;
(f) the Punch List items have not been completed within the period set forth in Clause 14.4.1;
(g) the Concessionaire is in breach of the Maintenance Requirements or the Safety Requirements, as ;
(g) the case may beConcessionaire has failed to adhere to the MCI recognition requirements, or commits repeated default has failed in conforming maintaining the MCI recognition due to reasons solely attributable to the Key Performance IndicatorsConcessionaire;
(h) the Concessionaire has failed to make any payment to employ on full time basis requisite number of Qualified Medical Teaching Staff and Resident Doctors with adequate qualifications in accordance with the Authority within the period specified in this AgreementMCI Regulations;
(i) an Escrow Default has occurred the Qualified Medical Teaching Staff and Resident Doctors deployed by the Concessionaire fails to report to the duty for continuous days of 5 days at Hospital including Training Centres and the Concessionaire fails to cure the default produce a suitable replacement for him within a Cure Period 7 days of 15 (fifteen) days;notifying him.
(j) upon occurrence of a Financial Default, the Lenders’ Representative has by notice required the Authority to undertake Suspension or Termination, as the case may be, in accordance with the Substitution Agreement and the Concessionaire fails to cure the default within the Cure Period specified hereinabove;
(k) a breach of any of the Project Agreements by the Concessionaire has caused a Material Adverse Effect;
(lk) the Concessionaire creates any Encumbrance in breach of this Agreement;
(ml) the Concessionaire repudiates this Agreement or otherwise takes any action or evidences or conveys an intention not to be bound by the Agreement;
(n) a Change in Ownership has occurred in breach of the provisions of Clause 5.3;
(o) there is a transfer, pursuant to law either of (i) the rights and/or obligations of the Concessionaire under any of the Project Agreements, or of (ii) all or part of the assets or undertaking of the Concessionaire, and such transfer causes a Material Adverse Effect;
(p) an execution levied on any of the assets of the Concessionaire has caused a Material Adverse Effect;
(q) the Concessionaire is adjudged bankrupt or insolvent, or if a trustee or receiver is appointed for the Concessionaire or for the whole or material part of its assets that has a material bearing on the Project;
(r) the Concessionaire has been, or is in the process of being liquidated, dissolved, wound-up, amalgamated or reconstituted in a manner that would cause, in the reasonable opinion of the Authority, a Material Adverse Effect;
(s) a resolution for winding up of the Concessionaire is passed, or any petition for winding up of the Concessionaire is admitted by a court of competent jurisdiction and a provisional liquidator or receiver is appointed and such order has not been set aside within 90 (ninety) days of the date thereof or the Concessionaire is ordered to be wound up by Court except for the purpose of amalgamation or reconstruction; provided that, as part of such amalgamation or reconstruction, the entire property, assets and undertaking of the Concessionaire are transferred to the amalgamated or reconstructed entity and that the amalgamated or reconstructed entity has unconditionally assumed the obligations of the Concessionaire under this Agreement and the Project Agreements; and provided that:
(i) the amalgamated or reconstructed entity has the capability and operating experience necessary for the performance of its obligations under this Agreement and the Project Agreements;
(ii) the amalgamated or reconstructed entity has the financial standing to perform its obligations under this Agreement and the Project Agreements and has a credit worthiness at least as good as that of the Concessionaire as at the Appointed Date; and
(iii) each of the Project Agreements remains in full force and effect;
(t) any representation or warranty of the Concessionaire herein contained which is, as of the date hereof, found to be materially false, incorrect or misleading or the Concessionaire is at any time hereafter found to be in breach thereof;
(u) the Concessionaire submits to the Authority any statement, notice or other Document, in written or electronic form, which has a material effect on the Authority's rights, obligations or interests and which is false in material particulars;
(v) the Concessionaire has failed to fulfil any obligation, for which failure Termination has been specified in this Agreement;
(w) the Concessionaire commits a default in complying with any other provision of this Agreement if such default causes a Material Adverse Effect on the Authority;
(x) the Concessionaire fails to pay the Upfront Premium and Annual Concession Fee in accordance with Article 25; or
(y) the COD of Commercial Complex is not achieved by 2555th day of the Appointed Date or by such other extended period as agreed upon by Authority.
33.1.2 Without prejudice to any other rights or remedies which the Authority may have under this Agreement, upon occurrence of a Concessionaire Default, the Authority shall be entitled to terminate this Agreement by issuing a Termination Notice to the Concessionaire; provided that before issuing the Termination Notice, the Authority shall by a notice inform the Concessionaire of its intention to issue such Termination Notice and grant 15 (fifteen) days to the Concessionaire to make a representation, and may after the expiry of such 15 (fifteen) days, whether or not it is in receipt of such representation, issue the Termination Notice, subject to the provisions of Clause 33.1.3.
33.1.3 The Authority shall, if there be Senior Lenders, send a copy of its notice of intention to issue a Termination Notice referred to in Clause 33.1.2 to inform the Lenders’ Representative and grant 15 (fifteen) days to the Lenders’ Representative, for making a representation on behalf of the Senior Lenders stating the intention to substitute the Concessionaire in accordance with the Substitution Agreement. In the event the Authority receives such representation on behalf of Senior Lenders, it shall, in its discretion, either withhold Termination for a period not exceeding 180 (one hundred and eighty) days from the date of such representation or exercise its right of Suspension, as the case may be, for enabling the Lenders' Representative to exercise the Senior Lenders’ right of substitution in accordance with the Substitution Agreement. Provided that the Lenders’ Representative may, instead of exercising the Senior Lenders’ right of substitution, procure that the default specified in the notice is cured within the aforesaid period of 180 (one hundred and eighty) days, and upon such curing thereof, the Authority shall withdraw its notice referred to above and restore all the rights of the Concessionaire. Provided further that upon written request from the Lenders’ Representative and the Concessionaire, the Authority shall extend the aforesaid period of 180 (one hundred and eighty) days by such further period not exceeding 90 (ninety) days, as the Authority may deem appropriate.
Appears in 1 contract
Samples: Concession Agreement
Termination for Concessionaire Default. 33.1.1 37.1.1 Save as otherwise provided in this Agreement, in the event that any of the defaults specified below shall have occurred, and the Concessionaire fails to cure the default within the Cure Period set forth below, or where no Cure Period is specified, then within a Cure Period of 60 (sixty) days, the Concessionaire shall be deemed to be in default of this Agreement (the "“Concessionaire Default"”), unless the default has occurred solely as a result of any breach of this Agreement by the Authority or due to Force Majeure. The defaults referred to herein shall include:
(a) the Performance Security or the Performance Guarantee, as the case may be, has been encashed and appropriated in accordance with Clause 9.4 9.2 and Clause 9.5 respectively and the Concessionaire fails to replenish or provide fresh Performance Security or the Performance Guarantee, as the case may be, within a Cure Period of 30 (thirty) days;
(b) subsequent to the replenishment or furnishing of fresh Performance Security or the Performance Guarantee, as the case may be, in accordance with Clause 9.4 9.2 and Clause 9.5 respectively, the Concessionaire fails to cure, within a Cure Period of 90 (ninety) days, the Concessionaire Default for which whole or part of the Performance Security or the Performance Guarantee, as the case may be, ,was appropriated;
(c) the Concessionaire does not achieve the latest outstanding Project Milestone due in accordance with the provisions of Schedule-G and continues to be in default for 120 (one hundred and twenty) days;
(d) the Concessionaire abandons or manifests intention to abandon the construction or operation of the Project Bus Terminal without the prior written consent of the Authority;
(e) Project Completion Date does not occur within the period specified in Clause 12.4.3;
(f) the Punch List items have not been completed within the period set forth in Clause 14.4.1;
(g) the Concessionaire is in breach of the Maintenance Requirements or the Safety Requirements, as the case may be, or commits repeated default in conforming to the Key Performance Indicators;
(h) the Concessionaire has failed to make any payment to the Authority within the period specified in this Agreement;
(i) an Escrow Default has occurred and the Concessionaire fails to cure the default within a Cure Period of 15 (fifteen) days;
(j) upon occurrence of a Financial Default, the Lenders’ Lenders‟ Representative has by notice required the Authority to undertake Suspension or Termination, as the case may be, in accordance with the Substitution Agreement and the Concessionaire fails to cure the default within the Cure Period specified hereinabove;
(k) a breach of any of the Project Agreements by the Concessionaire has caused a Material Adverse Effect;
(l) the Concessionaire creates any Encumbrance in breach of this Agreement;
(m) the Concessionaire repudiates this Agreement or otherwise takes any action or evidences or conveys an intention not to be bound by the Agreement;
(n) a Change in Ownership has occurred in breach of the provisions of Clause 5.3;
(o) there is a transfer, pursuant to law either of (i) the rights and/or obligations of the Concessionaire under any of the Project Agreements, or of (ii) all or part of the assets or undertaking of the Concessionaire, and such transfer causes a Material Adverse Effect;
(p) an execution levied on any of the assets of the Concessionaire has caused a Material Adverse Effect;
(q) the Concessionaire is adjudged bankrupt or insolvent, or if a trustee or receiver is appointed for the Concessionaire or for the whole or material part of its assets that has a material bearing on the Project;
(r) the Concessionaire has been, or is in the process of being liquidated, dissolved, wound-up, amalgamated or reconstituted in a manner that would cause, in the reasonable opinion of the Authority, a Material Adverse Effect;
(s) a resolution for winding up of the Concessionaire is passed, or any petition for winding up of the Concessionaire is admitted by a court of competent jurisdiction and a provisional liquidator or receiver is appointed and such order has not been set aside within 90 (ninety) days of the date thereof or the Concessionaire is ordered to be wound up by Court except for the purpose of amalgamation or reconstruction; provided that, as part of such amalgamation or reconstruction, the entire property, assets and undertaking of the Concessionaire are transferred to the amalgamated or reconstructed entity and that the amalgamated or reconstructed entity has unconditionally assumed the obligations of the Concessionaire under this Agreement and the Project Agreements; and provided that:
(i) the amalgamated or reconstructed entity has the capability and operating experience necessary for the performance of its obligations under this Agreement and the Project Agreements;
(ii) the amalgamated or reconstructed entity has the financial standing to perform its obligations under this Agreement and the Project Agreements and has a credit worthiness at least as good as that of the Concessionaire as at the Appointed Date; and
(iii) each of the Project Agreements remains in full force and effect;
(t) any representation or warranty of the Concessionaire herein contained which is, as of the date hereof, found to be materially false, incorrect or misleading or the Concessionaire is at any time hereafter found to be in breach thereof;
(u) the Concessionaire submits to the Authority any statement, notice or other Documentdocument, in written or electronic form, which has a material effect on the Authority's Authority‟s rights, obligations or interests and which is false in material particulars;
(v) the Concessionaire has failed to fulfil any obligation, for which failure Termination has been specified in this Agreement;
; (w) the Concessionaire commits a default in complying with any other provision of this Agreement if such default causes a Material Adverse Effect on the Authority;
(x) the Concessionaire fails to pay the Upfront Premium and Annual Concession Fee in accordance with Article 25; or
(y) the COD of Commercial Complex is not achieved by 2555th day of the Appointed Date or by such other extended period as agreed upon by Authority.
33.1.2 Without prejudice to any other rights or remedies which the Authority may have under this Agreement, upon occurrence of a Concessionaire Default, the Authority shall be entitled to terminate this Agreement by issuing a Termination Notice to the Concessionaire; provided that before issuing the Termination Notice, the Authority shall by a notice inform the Concessionaire of its intention to issue such Termination Notice and grant 15 (fifteen) days to the Concessionaire to make a representation, and may after the expiry of such 15 (fifteen) days, whether or not it is in receipt of such representation, issue the Termination Notice, subject to the provisions of Clause 33.1.3.
33.1.3 The Authority shall, if there be Senior Lenders, send a copy of its notice of intention to issue a Termination Notice referred to in Clause 33.1.2 to inform the Lenders’ Representative and grant 15 (fifteen) days to the Lenders’ Representative, for making a representation on behalf of the Senior Lenders stating the intention to substitute the Concessionaire in accordance with the Substitution Agreement. In the event the Authority receives such representation on behalf of Senior Lenders, it shall, in its discretion, either withhold Termination for a period not exceeding 180 (one hundred and eighty) days from the date of such representation or exercise its right of Suspension, as the case may be, for enabling the Lenders' Representative to exercise the Senior Lenders’ right of substitution in accordance with the Substitution Agreement. Provided that the Lenders’ Representative may, instead of exercising the Senior Lenders’ right of substitution, procure that the default specified in the notice is cured within the aforesaid period of 180 (one hundred and eighty) days, and upon such curing thereof, the Authority shall withdraw its notice referred to above and restore all the rights of the Concessionaire. Provided further that upon written request from the Lenders’ Representative and the Concessionaire, the Authority shall extend the aforesaid period of 180 (one hundred and eighty) days by such further period not exceeding 90 (ninety) days, as the Authority may deem appropriate.any
Appears in 1 contract
Samples: Concession Agreement
Termination for Concessionaire Default. 33.1.1 10.1.1 Save as otherwise provided in this Agreement, in the event that any of the defaults specified below shall have occurred, and the Concessionaire fails to cure the default within the Cure Period set forth below, or where no Cure Period is specified, then within a Cure Period of 60 (sixty) days, the Concessionaire shall be deemed to be in default of this Agreement (the "a “Concessionaire Default"”), unless the default has occurred solely as a result of any breach of this Agreement by the Authority or due to Force Majeure. : The defaults referred to herein shall include:
(a) the Performance Security or the Performance Guarantee, as the case may be, has been encashed and appropriated in accordance with Clause 9.4 respectively 9.2 and the Concessionaire fails to replenish or provide fresh Performance Security or the Performance Guarantee, as the case may be, within a Cure Period of 30 (thirty) days;
(b) subsequent to the replenishment or furnishing of fresh Performance Security or the Performance Guarantee, as the case may be, in accordance with Clause 9.4 respectively9.2, the Concessionaire fails to cure, within a Cure Period of 90 (ninety) days, the Concessionaire Default for which whole or part of the Performance Security or the Performance Guarantee, as the case may be, was appropriated;.
(c) the Concessionaire does not achieve the latest outstanding Project Milestone due in accordance with the provisions of Schedule-G and continues to be in default for 120 (one hundred and twenty) days;
(d) the Concessionaire abandons or manifests intention to abandon the construction or operation implementation of the Project without the prior written consent of the Authority;
(ed) commencement date of the Project Completion Date does not occur within the period specified in Clause 12.4.3this Agreement;
(f) the Punch List items have not been completed within the period set forth in Clause 14.4.1;
(ge) the Concessionaire is in breach of the Maintenance Requirements or the Safety Implementation Requirements, as the case may be, or commits repeated default in conforming to the Key Performance Indicators;
(hf) the Concessionaire has failed to make any payment to the Authority within the period specified in this Agreement;
(ig) an Escrow Default has occurred and the Concessionaire fails to cure the default within a Cure Period of 15 (fifteen) days;
(jh) upon occurrence of a Financial Default, the Lenders’ Representative has by notice required the Authority to undertake Suspension or Termination, as the case may be, in accordance with the Substitution Agreement and the Concessionaire fails to cure the default within the Cure Period specified hereinabovein the Substitution Agreement;
(ki) a breach of any of the Project Agreements by the Concessionaire has caused a Material Adverse Effect;
(lj) the Concessionaire creates any Encumbrance in breach of this Agreement;
(mk) the Concessionaire repudiates this Agreement or otherwise takes any action or evidences or conveys an intention not to be bound by the Agreement;
(nl) a Change in Ownership has occurred in breach of the provisions of Clause 5.3;
(om) there is a transfer, pursuant to law either of (i) the rights and/or obligations of the Concessionaire under any of the Project Agreements, or of (ii) all or part of the assets or undertaking of the Concessionaire, and such transfer causes a Material Adverse Effect;
(pn) an execution levied on any of the assets of the Concessionaire has caused a Material Material-Adverse Effect;
(qo) the Concessionaire is adjudged bankrupt or insolvent, or if a trustee or receiver is appointed for the Concessionaire or for the whole or material part of its assets that has a material bearing on the Project;
(rp) the Concessionaire has been, or is in the process of being liquidated., dissolved, wound-up, amalgamated or reconstituted in a manner that would cause, in the reasonable opinion of the Authority, a Material Adverse Effect;
(sq) a resolution for winding up of the Concessionaire is passed, or any petition for winding up of the Concessionaire is admitted by a court of competent jurisdiction and a provisional liquidator or receiver is appointed and such order has not been set aside within 90 (ninety) days of the date thereof or the Concessionaire is ordered to be wound up by Court except for the purpose of amalgamation or reconstruction; provided that, as part of such amalgamation or reconstruction, the entire property, assets and undertaking of the Concessionaire are transferred to the amalgamated or reconstructed entity and that the amalgamated or reconstructed entity has unconditionally assumed the obligations of the Concessionaire under this Agreement and the Project Agreements; and provided that:
(i) the amalgamated or reconstructed entity has the capability and operating experience necessary for the performance of its obligations under this Agreement and the Project Agreements;
(ii) the amalgamated or reconstructed entity has the financial standing to perform its obligations under this Agreement and the Project Agreements and has a credit worthiness at least as good as that of the Concessionaire as at the Appointed Date; and
(iii) each of the Project Agreements remains in full force and effect;
(tr) any representation or warranty of the Concessionaire herein contained which is, as of the date hereof, found to be materially false, incorrect or misleading false or the Concessionaire is at any time hereafter found to be in breach thereof;
(us) the Concessionaire submits to the Authority any statement, notice or other Document, in written or electronic form, statement which has a material effect on the Authority's ’s rights, obligations or interests and which is false in material particulars;
(vt) the Concessionaire has failed to fulfil any obligation, for which failure Termination has been specified in this Agreement;; or
(wu) the Concessionaire commits a default in complying with any other provision of this Agreement if such default causes a Material Adverse Effect on the AuthorityAgreement.
v) Performance Security is allowed to lapse;
(x) the Concessionaire fails to pay the Upfront Premium and Annual Concession Fee in accordance with Article 25; or
(y) the COD of Commercial Complex is not achieved by 2555th day of the Appointed Date or by such other extended period as agreed upon by Authority.
33.1.2 10.1.2 Without prejudice to any other rights or remedies which the Authority may have under this Agreement, upon occurrence of a Concessionaire Default, the Authority shall be entitled to terminate this Agreement by issuing a Termination Notice to the Concessionaire; provided that before issuing the Termination Notice, the Authority shall by a notice inform the Concessionaire Concessionaire, of its intention to issue such Termination Notice and grant 15 (fifteen) days to the Concessionaire to make a representation, and may after the expiry of such 15 (fifteen) days, whether or not it is in receipt of such representation, issue the Termination Notice, subject to the provisions of Clause 33.1.310.1.3.
33.1.3 The 10.1.3 the Authority shall, if there be Senior Lenders, send a copy of its notice of intention to issue a Termination Notice referred to in Clause 33.1.2 10.1.2 to inform the Lenders’ Representative and grant 15 (fifteen) days to the Lenders’ Representative, for making a representation on behalf of the Senior Lenders stating the intention to substitute the Concessionaire in accordance with the Substitution Agreement. In the event the Authority receives such representation on behalf of Senior Lenders, it shall, in its discretion, either withhold Termination for a period not exceeding 180 (one hundred and eighty) days from the date of such representation or exercise its right of Suspension, as the case may be, for enabling the Lenders' ’ Representative to exercise the Senior Lenders’ right of substitution in accordance with the Substitution Agreement. : Provided that the Lenders’ Representative may, instead of exercising the Senior Lenders’ right of substitution, procure that the default specified in the notice is cured within the aforesaid period of 180 (one hundred and eighty) days, and upon such curing thereof, the Authority shall withdraw its notice referred to above and restore all the rights of the Concessionaire. : Provided further that upon written request from the Lenders’ ' Representative and the Concessionaire, the Authority shall extend the aforesaid period of 180 (one hundred and eighty) days by such further period not exceeding 90 (ninety) days, as the Authority may deem appropriate.
Appears in 1 contract
Samples: Concession Agreement
Termination for Concessionaire Default. 33.1.1 25.1.1 Save as otherwise provided in this Agreement, in the event that any of the defaults specified below shall have occurred, and the Concessionaire fails to cure the default within the Cure Period set forth below, or where no Cure Period is specified, then within a Cure Period of 60 (sixty) days, the Concessionaire shall be deemed to be in default of this Agreement (the "Concessionaire Default"), unless the default has occurred solely as a result of any breach of this Agreement by the Authority or due to Force Majeure. Upon occurrence of a Concessionaire Default, the Authority shall issue a Notice of Breach to the Concessionaire and to the Lender’s Representative, intimating about the breach and commencement of Cure Period for repair of such breach. The Cure Period shall be for a duration of 60 (sixty) days from the date of issue of Notice of Breach. The breach / defaults referred to herein shall include:
(a) the The Performance Security or the Performance Guarantee, as the case may be, has been encashed and appropriated in accordance with Clause 9.4 respectively ARTICLE 9 and the Concessionaire fails to replenish or provide fresh Performance Security or the Performance Guarantee, as the case may be, within a Cure Period of 30 (thirty) days;
(b) subsequent to the replenishment or furnishing days of fresh Performance Security or the Performance Guarantee, as the case may beencashment / appropriation, in accordance with Clause 9.4 respectivelyArticle 9.2;
b) {If Applicable, the original Additional Performance Security has been encashed and the Concessionaire fails to replenish the same within 30 (thirty) days of such encashment, in accordance to Article 9.4.4.}
c) {If Applicable, the Concessionaire fails to cure, within a Cure Period of 90 (ninety) days, the Concessionaire Default for which whole or part of the Performance Security or the Performance Guarantee, as the case may be, was appropriated;
(c) the Concessionaire does not achieve the latest outstanding Project Milestone due meet its obligations related to on-boarding an Operating Partner in accordance with the provisions of Schedule-G and continues to be in default for 120 (one hundred and twenty) days;Article 9.4.5.}
(d) the The Concessionaire abandons or manifests intention to abandon the construction or operation of the Project without the prior written consent of the Authority;
(e) The Concessionaire fails to undertake or complete the construction of the Mandatory Development Obligations in accordance with ARTICLE 12;
f) The Concessionaire fails to achieve COD within 180 (one hundred and eighty days) of Scheduled Completion Date, subject to provisions of Article 12.4.4 and Article 15.1.2;
g) The Concessionaire fails to repair / rectify any breach of the Maintenance Requirements within a period specified in Article 16.5;
h) The Concessionaire has failed to make payment of Project Completion Date does not occur Consideration to the Authority within the period specified in Clause 12.4.3Article 19.5;
(fi) the Punch List items have not been completed within the period set forth in Clause 14.4.1;
(g) the Concessionaire is in breach of the Maintenance Requirements or the Safety Requirements, as the case may be, or commits repeated default in conforming to the Key Performance Indicators;
(h) the The Concessionaire has failed to make any payment to the Authority within the period specified in this Agreement;
(ij) an An Escrow Default has occurred and the Concessionaire fails to cure the default within a Cure Period of 15 (fifteen) daysthe period specific in the Escrow Agreement;
(j) upon occurrence of a Financial Default, the Lenders’ Representative has by notice required the Authority to undertake Suspension or Termination, as the case may be, in accordance with the Substitution Agreement and the Concessionaire fails to cure the default within the Cure Period specified hereinabove;
(k) a A breach of any of the Project Agreements by the Concessionaire has caused a Material Adverse Effect;
(l) the The Concessionaire creates any Encumbrance in breach of this Agreement;
(m) the The Concessionaire repudiates this Agreement or otherwise takes any action or evidences or conveys an intention not to be bound by the Agreement;
(n) a A Change in Ownership has occurred in breach of the provisions of Clause 5.3Article 5.4;
(o) there If the Concessionaire is declared as a wilful defaulter by any of the Scheduled Banks in India;
p) If the Concessionaire is declared unfit/ineligible to continue as a “going concern” or undertake the responsibilities as per this Agreement under an Indian Law;
q) There is a transfer, pursuant to law either of (i) the rights and/or obligations of the Concessionaire under any of the Project Agreements, or of (ii) all or part of the assets or undertaking of the Concessionaire, and such transfer causes a Material Adverse Effect;
(pr) an execution levied on any of the assets of the Concessionaire has caused a Material Adverse Effect;
(q) the The Concessionaire is adjudged bankrupt or insolvent, or if a trustee or receiver is appointed for the Concessionaire or for the whole or material part of its assets that has a material bearing on the Project;
(rs) the The Concessionaire has been, or is in the process of being liquidated, dissolved, wound-wound- up, amalgamated or reconstituted in a manner that would cause, in the reasonable opinion of the Authority, a Material Adverse Effect;
(st) a A resolution for winding up of the Concessionaire is passed, or any petition for winding up of the Concessionaire is admitted by a court of competent jurisdiction and a provisional liquidator or receiver is appointed and such order has not been set aside within 90 (ninety) days of the date thereof or the Concessionaire is ordered to be wound up by Court except for the purpose of amalgamation or reconstruction; provided that, as part of such amalgamation or reconstruction, the entire property, assets and undertaking of the Concessionaire are transferred to the amalgamated or reconstructed entity and that the amalgamated or reconstructed entity has unconditionally assumed the obligations of the Concessionaire under this Agreement and the Project Agreements; and provided that:
(i) a. the amalgamated or reconstructed entity has the capability and operating experience necessary for the performance of its obligations under this Agreement and the Project Agreements;
(ii) b. the amalgamated or reconstructed entity has the financial standing to perform its obligations under this Agreement and the Project Agreements and has a credit worthiness at least as good as that of the Concessionaire as at the Appointed DateCOD; and
(iii) c. each of the Project Agreements remains in full force and effect;
(tu) any Any representation or warranty of the Concessionaire herein contained which is, as of the date hereof, found to be materially false, incorrect or misleading or the Concessionaire is at any time hereafter found to be in breach thereof;
(uv) the The Concessionaire submits to the Authority any statement, notice or other Documentdocument, in written or electronic form, which has a material effect on the Authority's rights, obligations or interests and which is false in material particulars;
(vw) It is found that the Selected Bidder has hidden a Conflict of Interest, as outlined in RFP, during the bidding process;
x) The Concessionaire has failed to fulfil any obligation, for which failure failure, Termination has been specified in this Agreement;; or
(wy) the The Concessionaire commits a default in complying with any other provision of this Agreement if such default causes cause a Material Adverse Effect on the Authority;
(x) the Concessionaire fails to pay the Upfront Premium and Annual Concession Fee in accordance with Article 25; or
(y) the COD of Commercial Complex is not achieved by 2555th day of the Appointed Date or by such other extended period as agreed upon by Authority.
33.1.2 z) The Concessionaire novates and /or assigns the agreement to any third party without any prior approval from the Concessioning Authority
25.1.2 Without prejudice to any other rights or remedies which the Authority may have under this Agreement, upon occurrence of a breach of the terms of this Agreement due to any of the reasons mentioned above in Article 25.1.1:
a) The Authority shall, upon observation of a Concessionaire DefaultDefault as per Article 25.1.1, send a Notice of Breach to the Concessionaire and the Lender’s Representative, intimating the start of the Cure Period, the reason for the breach, and whether it intend to exercise its rights to Suspension as per provisions of Article 25.5;
b) In case the breach is not cured by the Concessionaire within the Cure Period, the Authority shall be entitled to terminate this Agreement by issuing issue a Termination Notice to the Concessionaire; provided that before issuing , 30 (thirty) days from the Termination Notice, the issue of which this Agreement shall stand terminated.
25.1.3 The Authority shall by a notice inform the Concessionaire of its intention to issue such Termination Notice and grant 15 (fifteen) days to the Concessionaire to make a representation, and may after the expiry of such 15 (fifteen) days, whether or not it is in receipt of such representation, issue the Termination Notice, subject to the provisions of Clause 33.1.3.
33.1.3 The Authority shallalso, if there be Senior Lenders, send a copy of its notice Notice of intention to issue a Breach and Termination Notice referred to in Clause 33.1.2 to inform the Lenders’ ' Representative. The Lender’s Representative and grant shall be given 15 (fifteen) days from the Termination Notice to the Lenders’ Representative, for making make a representation on behalf of the Senior Lenders stating the intention to substitute the Concessionaire in accordance with the Substitution Agreement. In the event the Authority receives such representation on behalf of Senior Lenders, it shall, in its discretion, either withhold Termination for a period not exceeding 180 90 (one hundred and eightyninety) days from the date of such representation or exercise its right of Suspension, as the case may be, for enabling the Lenders' Representative to exercise the Senior Lenders’ ' right of substitution in accordance with the Substitution Agreement. Provided that the Lenders’ ' Representative may, instead of exercising the Senior Lenders’ ' right of substitution, procure that the default specified in the notice is cured within the aforesaid period of 180 90 (one hundred and eightyninety) days, and upon such curing thereof, the Authority shall withdraw its notice referred to above and restore all the rights of the Concessionaire. Provided further that upon written request from the Lenders’ Representative and the Concessionaire, the Authority shall extend the aforesaid period of 180 (one hundred and eighty) days by such further period not exceeding 90 (ninety) days, as the Authority may deem appropriate.
Appears in 1 contract
Samples: Concession Agreement
Termination for Concessionaire Default. 33.1.1 37.1.1 Save as otherwise provided in this Agreement, in the event that any of the defaults specified below shall have occurred, and the Concessionaire fails to cure the default within the Cure Period set forth below, or where no Cure Period is specified, then within a Cure Period of 60 (sixty) days, the Concessionaire shall be deemed to be in default of this Agreement (the "a “Concessionaire Default"”), unless the default has occurred solely as a result of any material breach of this Agreement by the Authority GOTN, HD or due to Force Majeure. The defaults referred to herein shall include:
(a) the Performance Security or the Performance Guarantee, as the case may be, has been encashed and appropriated in accordance with Clause 9.4 respectively 9.2 and the Concessionaire fails to replenish or provide fresh Performance Security or the Performance Guarantee, as the case may be, within a Cure Period of 30 (thirty) days;
(b) subsequent to the replenishment or furnishing of fresh Performance Security or the Performance Guarantee, as the case may be, in accordance with Clause 9.4 respectively9.2, the Concessionaire fails to cure, within a Cure Period of 90 (ninety) days, the Concessionaire Default for which whole or part of the Performance Security or the Performance Guarantee, as the case may be, was appropriated;
(c) the Concessionaire does not achieve the latest outstanding Project Milestone due in accordance with the provisions of Schedule-G and continues to be in default for 120 90 (one hundred and twentyninety) days;
(d) the Concessionaire abandons or manifests intention to abandon the construction or operation of the Project Highway without the prior written consent of the AuthorityGOTN, HD;
(e) Project Completion Date does not occur within the period specified in Clause 12.4.3;
(f) the Punch List items have not been completed within the period set forth in Clause 14.4.1;
(g) the Concessionaire is in breach of the Maintenance Requirements or the Safety Requirements, as the case may be, or commits repeated default in conforming to the Key Performance Indicators;
(h) the Concessionaire has failed to make any payment to the Authority GOTN, HD within the period specified in this Agreement;
(i) an Escrow Default has occurred and the Concessionaire fails to cure the default within a Cure Period of 15 (fifteen) days;
(j) upon occurrence of a Financial Default, the Lenders’ Representative has by notice required the Authority GOTN, HD to undertake Suspension or Termination, as the case may be, in accordance with the Substitution Agreement and the Concessionaire fails to cure the default within the Cure Period specified hereinabove;default
(k) a breach of any of the Project Agreements by the Concessionaire has caused a Material Adverse Effect;
(l) the Concessionaire creates any Encumbrance in breach of this Agreement;
(m) the Concessionaire repudiates this Agreement or otherwise takes any action or evidences or conveys an intention not to be bound by the Agreement;
(n) a Change in Ownership has occurred in breach of the provisions of Clause 5.3;
(o) there is a transfer, pursuant to law either of (i) the rights and/or obligations of the Concessionaire under any of the Project Agreements, or of (ii) all or part of the assets or undertaking of the Concessionaire, and such transfer causes a Material Adverse Effect;
(p) an execution levied on any of the assets of the Concessionaire has caused a Material Adverse Effect;
(q) the Concessionaire is adjudged bankrupt or insolvent, or if a trustee or receiver is appointed for the Concessionaire or for the whole or material part of its assets that has a material bearing on the Project;
(r) the Concessionaire has been, or is in the process of being liquidated, dissolved, wound-up, amalgamated or reconstituted in a manner that would cause, in the reasonable opinion of the AuthorityGOTN, HD, a Material Adverse Effect;
(s) a resolution for winding up of the Concessionaire is passed, or any petition for winding up of the Concessionaire is admitted by a court of competent jurisdiction and a provisional liquidator or receiver is appointed and such order has not been set aside within 90 (ninety) days of the date thereof or the Concessionaire is ordered to be wound up by Court except for the purpose of amalgamation or reconstruction; provided that, as part of such amalgamation or reconstruction, the entire property, assets and undertaking of the Concessionaire are transferred to the amalgamated or reconstructed entity and that the amalgamated or reconstructed entity has unconditionally assumed the obligations of the Concessionaire under this Agreement and the Project Agreements; and provided that:
(i) the amalgamated or reconstructed entity has the capability and operating experience necessary for the performance of its obligations under this Agreement and the Project Agreements;
(ii) the amalgamated or reconstructed entity has the financial standing to perform its obligations under this Agreement and the Project Agreements and has a credit worthiness at least as good as that of the Concessionaire as at the Appointed Date; and
(iii) each of the Project Agreements remains in full force and effect;
(t) any representation or warranty of the Concessionaire herein contained which is, as of the date hereof, found to be materially false, incorrect or misleading false or the Concessionaire is at any time hereafter found to be in breach thereof;
(u) the Concessionaire submits to the Authority GOTN, HD any statement, notice or other Document, in written or electronic form, statement which has a material effect on the Authority's GOTN, HD’s rights, obligations or interests and which is false in material particulars;
(v) the Concessionaire has failed to fulfil any obligation, for which failure Termination has been specified in this Agreement;; or
(w) the Concessionaire commits a default in complying with any other provision of this Agreement if such a default causes a Material Adverse Effect on the Authority;
(x) the Concessionaire fails to pay the Upfront Premium and Annual Concession Fee in accordance with Article 25; or
(y) the COD of Commercial Complex is not achieved by 2555th day of the Appointed Date or by such other extended period as agreed upon by AuthorityGOTN, HD.
33.1.2 37.1.2 Without prejudice to any other rights or remedies which the Authority GOTN, HD may have under this Agreement, upon occurrence of a Concessionaire Default, the Authority GOTN, HD shall be entitled to terminate this Agreement by issuing a Termination Notice to the Concessionaire; provided that before issuing the Termination Notice, the Authority GOTN, HD shall by a notice inform the Concessionaire of its intention to issue such Termination Notice and grant 15 (fifteen) days to the Concessionaire to make a representation, and may after the expiry of such 15 (fifteen) days, whether or not it is in receipt of such representation, issue the Termination Notice, subject to the provisions of Clause 33.1.3clause 37.1.3.
33.1.3 The Authority 37.1.3 GOTN, HD shall, if there be Senior Lenders, send a copy of its notice of intention to issue a Termination Notice referred to in Clause 33.1.2 37.1.2 to inform the Lenders’ Representative and grant 15 (fifteen) days to the Lenders’ Representative, for making a representation on behalf of the Senior Lenders stating the intention to substitute the Concessionaire in accordance with the Substitution Agreement. In the event the Authority GOTN, HD receives such representation on behalf of Senior Lenders, it shall, in its discretion, either withhold Termination for a period not exceeding 180 (one hundred and eighty) days from the date of such representation or exercise its right of Suspension, as the case may be, for enabling the Lenders' ’ Representative to exercise the Senior Lenders’ right of substitution in accordance with the Substitution Agreement. : Provided that the Lenders’ Representative may, instead of exercising the Senior Lenders’ right of substitution, procure that the default specified in the notice is cured within the aforesaid period of 180 (one hundred and eighty) days, and upon such curing thereof, the Authority GOTN, HD shall withdraw its notice referred to above and restore all the rights of the Concessionaire. : Provided further that upon written request from the Lenders’ Representative and the Concessionaire, the Authority GOTN, HD shall extend the aforesaid period of 180 (one hundred and eighty) days by such further period not exceeding 90 (ninety) days, as the Authority GOTN, HD may deem appropriate.
Appears in 1 contract
Samples: Concession Agreement
Termination for Concessionaire Default. 33.1.1 38.1.1 Save as otherwise provided in this Agreement, in the event that any of the defaults specified below shall have occurred, and the Concessionaire fails to cure the default within the Cure Period set forth below, or where no Cure Period is specified, then within a Cure Period of 60 (sixty) days, the Concessionaire shall be deemed to be in default of this Agreement (the "“Concessionaire Default"”), unless the default has occurred solely as a result of any breach of this Agreement by the Authority or due to Force Majeure. The defaults referred to herein shall include:
(a) the Performance Security or the Performance Guarantee, as the case may be, has been encashed and appropriated in accordance with Clause 9.4 9.2 and Clause 9.5, respectively and the Concessionaire fails to replenish or provide fresh Performance Security or the Performance Guarantee, as the case may be, Guarantee within a Cure Period of 30 (thirty) days;
(b) subsequent to the replenishment or furnishing of fresh Performance Security or the Performance Guarantee, as the case may be, in accordance with Clause 9.4 9.2 and Cause 9.5, respectively, the Concessionaire fails to cure, within a Cure Period of 90 (ninety) days, the Concessionaire Default for which whole or part of the Performance Security or the Performance Guarantee, as the case may be, Guarantee was appropriated;
(c) the Concessionaire does not achieve the latest outstanding Project Milestone due in accordance with the provisions of Schedule-G Schedule - H and continues to be in default for 120 (one hundred and twenty) days;
(d) the Concessionaire abandons or manifests intention to abandon the construction or operation of the Project Healthcare Network without the prior written consent of the Authority;
(e) Project Completion Date does not occur within the period specified in Clause 12.4.312.3.3;
(f) the Punch List items have not been completed within the period set forth in Clause 14.4.1;
(g) the Concessionaire is in breach of the O&M obligations as set forth in Clause 17.1.1, Maintenance Requirements or the Safety Requirements, as the case may be, or commits repeated default in conforming to the Key Performance Indicators;
(h) the Concessionaire has failed to make any payment to the Authority within the period specified in this Agreement;
(i) an Escrow Default has occurred and the Concessionaire fails to cure the default within a Cure Period of 15 (fifteen) days;
(j) upon occurrence of a Financial Default, the Lenders’ Representative has by notice required the Authority to undertake Suspension or Termination, as the case may be, in accordance with the Substitution Agreement and the Concessionaire fails to cure the default within the Cure Period specified hereinabove;
(k) a breach of any of the Project Agreements by the Concessionaire has caused a Material Adverse Effect;
(l) the Concessionaire creates any Encumbrance in breach of this Agreement;
(m) the Concessionaire repudiates this Agreement or otherwise takes any action or evidences or conveys an intention not to be bound by the Agreement;
(n) a Change in Ownership has occurred in breach of the provisions of Clause 5.3;
(o) there is a transfer, pursuant to law either of (i) the rights and/or obligations of the Concessionaire under any of the Project Agreements, or of (ii) all or part of the assets or undertaking of the Concessionaire, and such transfer causes a Material Adverse Effect;
(p) an execution levied on any of the assets of the Concessionaire has caused a Material Adverse Effect;
(q) the Concessionaire is adjudged bankrupt or insolvent, or if a trustee or receiver is appointed for the Concessionaire or for the whole or material part of its assets that has a material bearing on the Project;
(r) the Concessionaire has been, or is in the process of being liquidated, dissolved, wound-up, amalgamated or reconstituted in a manner that would cause, in the reasonable opinion of the Authority, a Material Adverse Effect;
(s) a resolution for winding up of the Concessionaire is passed, or any petition for winding up of the Concessionaire is admitted by a court of competent jurisdiction and a provisional liquidator or receiver is appointed and such order has not been set aside within 90 (ninety) days of the date thereof or the Concessionaire is ordered to be wound up by Court except for the purpose of amalgamation or reconstruction; provided that, as part of such amalgamation or reconstruction, the entire property, assets and undertaking of the Concessionaire are transferred to the amalgamated or reconstructed entity and that the amalgamated or reconstructed entity has unconditionally assumed the obligations of the Concessionaire under this Agreement and the Project Agreements; and provided that:
(i) the amalgamated or reconstructed entity has the capability and operating experience necessary for the performance of its obligations under this Agreement and the Project Agreements;
(ii) the amalgamated or reconstructed entity has the financial standing to perform its obligations under this Agreement and the Project Agreements and has a credit worthiness at least as good as that of the Concessionaire as at the Appointed Date; and
(iii) each of the Project Agreements remains in full force and effect;
(t) any representation or warranty of the Concessionaire herein contained which is, as of the date hereof, found to be materially false, incorrect or misleading or the Concessionaire is at any time hereafter found to be in breach thereof;
(u) the Concessionaire submits to the Authority any statement, notice or other Document, in written or electronic form, which has a material effect on the Authority's rights, obligations or interests and which is false in material particulars;
(v) the Concessionaire has failed to fulfil any obligation, for which failure Termination has been specified in this Agreement;
(w) the Concessionaire commits a default in complying with any other provision of this Agreement if such default causes a Material Adverse Effect on the Authority;
(x) the Concessionaire fails to pay the Upfront Premium and Annual Concession Fee in accordance with Article 25; or
(y) the COD of Commercial Complex is not achieved by 2555th day of the Appointed Date or by such other extended period as agreed upon by Authority.
33.1.2 Without prejudice to any other rights or remedies which the Authority may have under this Agreement, upon occurrence of a Concessionaire Default, the Authority shall be entitled to terminate this Agreement by issuing a Termination Notice to the Concessionaire; provided that before issuing the Termination Notice, the Authority shall by a notice inform the Concessionaire of its intention to issue such Termination Notice and grant 15 (fifteen) days to the Concessionaire to make a representation, and may after the expiry of such 15 (fifteen) days, whether or not it is in receipt of such representation, issue the Termination Notice, subject to the provisions of Clause 33.1.3.
33.1.3 The Authority shall, if there be Senior Lenders, send a copy of its notice of intention to issue a Termination Notice referred to in Clause 33.1.2 to inform the Lenders’ Representative and grant 15 (fifteen) days to the Lenders’ Representative, for making a representation on behalf of the Senior Lenders stating the intention to substitute the Concessionaire in accordance with the Substitution Agreement. In the event the Authority receives such representation on behalf of Senior Lenders, it shall, in its discretion, either withhold Termination for a period not exceeding 180 (one hundred and eighty) days from the date of such representation or exercise its right of Suspension, as the case may be, for enabling the Lenders' Representative to exercise the Senior Lenders’ right of substitution in accordance with the Substitution Agreement. Provided that the Lenders’ Representative may, instead of exercising the Senior Lenders’ right of substitution, procure that the default specified in the notice is cured within the aforesaid period of 180 (one hundred and eighty) days, and upon such curing thereof, the Authority shall withdraw its notice referred to above and restore all the rights of the Concessionaire. Provided further that upon written request from the Lenders’ Representative and the Concessionaire, the Authority shall extend the aforesaid period of 180 (one hundred and eighty) days by such further period not exceeding 90 (ninety) days, as the Authority may deem appropriate.as
Appears in 1 contract
Samples: Concession Agreement
Termination for Concessionaire Default. 33.1.1 Save 18.1.1 Subject to Applicable Laws and save as otherwise provided in this Agreement, in the event that any of the defaults specified below shall have occurred, and the Concessionaire fails to cure the default within the Cure Period set forth below, or where no Cure Period is specified, then within a Cure Period of 60 90 (sixtyninety) days, the Concessionaire shall be deemed to be in default of this Agreement (the "“Concessionaire Default"”), unless the default has occurred solely as a result of any breach of this Agreement by the Authority MCGM or due to Force Majeure. The defaults referred to herein shall includeinclude the following:
(a) the The Performance Security or the Performance Guarantee, as the case may be, has been encashed and appropriated in accordance with Clause 9.4 respectively 9.2 and the Concessionaire fails to replenish or provide fresh Performance Security or the Performance Guarantee, as the case may be, within a Cure Period of 30 15 (thirtyfifteen) days;
(b) subsequent to the replenishment or furnishing of fresh Performance Security in accordance with Clause 9.2, the Concessionaire fails to meet any Condition Precedent or cure the Performance GuaranteeConcessionaire Default, as the case may be, in accordance with Clause 9.4 respectively, the Concessionaire fails to cure, within a Cure Period of 90 (ninety) days, the Concessionaire Default for which whole or part of the Performance Security or the Performance Guarantee, as the case may be, was appropriated;
(c) the Concessionaire does not achieve the latest outstanding Project Milestone due in accordance with the provisions , within a Cure Period of Schedule-G and continues to be in default for 120 (one hundred and twenty) days;
(d) the Concessionaire abandons or manifests intention to abandon the construction or operation of the Project without the prior written consent of the Authority;
(e) Project Completion Date does not occur within the period specified in Clause 12.4.3;
(f) the Punch List items have not been completed within the period set forth in Clause 14.4.1;
(g) the Concessionaire is in breach of the Maintenance Requirements or the Safety Requirements, as the case may be, or commits repeated default in conforming to the Key Performance Indicators;
(hc) the Concessionaire has failed to make any payment to the Authority MCGM within the period specified in this Agreement;
(i) an Escrow Default has occurred and the Concessionaire fails to cure the default within a Cure Period of 15 (fifteen) days;
(j) upon occurrence of a Financial Default, the Lenders’ Representative has by notice required the Authority to undertake Suspension or Termination, as the case may be, in accordance with the Substitution Agreement and the Concessionaire fails to cure the default within the Cure Period specified hereinabove;
(k) a breach of any of the Project Agreements by the Concessionaire has caused a Material Adverse Effect;
(ld) the Concessionaire creates any Encumbrance in breach of this Agreement;
(me) the Concessionaire repudiates this Agreement or otherwise takes any action or evidences or conveys an intention not to be bound by the Agreement and fails to pay Damages in accordance with the provisions of this Agreement;
(nf) the Concessionaire schedules electricity, produced from Contracted Capacity, for sale to Buyers in breach of this Agreement and fails to pay Damages in accordance with the provisions of Clause 13.1.3;
g) a Change in Ownership has occurred in breach of the provisions of Clause 5.3;
h) the Concessionaire fails to achieve a monthly Availability of 90% (oninety per cent) for a period of 2 (two) consecutive months or for a cumulative period of 4 (four) months within any continuous period of 12 (twelve) months, save and except to the extent of Non-Availability caused by (i) a Force Majeure Event, (ii) an act or omission of MCGM, not occurring due to any default of the Concessionaire or
i) there is a transfer, pursuant to law either of (i) the rights and/or obligations of the Concessionaire under any of the Project Agreements, or of (ii) all or part of the assets or undertaking of the Concessionaire, Concessionaire and such transfer causes a Material Adverse Effect;
(pj) an execution levied on any of the assets of the Concessionaire has caused a Material Adverse Effect;
(qk) the Concessionaire is adjudged bankrupt or insolvent, or if a trustee or receiver is appointed for the Concessionaire or for the whole or material part of its assets that has a material bearing on the Project;
(rl) the Concessionaire has been, or is in the process of being liquidated, dissolved, wound-up, amalgamated or reconstituted in a manner that would cause, in the reasonable opinion of the AuthorityMCGM, a Material Adverse Effect;
(sm) a resolution for winding up of the Concessionaire is passed, or ;
n) any petition for winding up of the Concessionaire is admitted by a court of competent jurisdiction and a provisional liquidator or receiver is appointed and such order has not been set aside within 90 (ninety) days of the date thereof or the Concessionaire is ordered to be wound up by Court a court except for the purpose of amalgamation or reconstruction; provided that, as part of such amalgamation or reconstruction, the entire property, assets and undertaking of the Concessionaire are transferred to the amalgamated or reconstructed entity and that the amalgamated or reconstructed entity has unconditionally assumed the obligations of the Concessionaire under this Agreement and the Project Agreements; and provided that:
(i) the amalgamated or reconstructed entity has the capability and operating experience necessary for the performance of its obligations under this Agreement and the Project Agreements;
(ii) the amalgamated or reconstructed entity has the financial standing to perform its obligations under this Agreement and the Project Agreements and has a credit worthiness at least as good as that of the Concessionaire as at the Appointed Date; and;
(iii) each of the Project Agreements remains in full force and effect;; and
(tiv) such amalgamation or reconstruction is approved by the Commission.
o) any representation or warranty of the Concessionaire herein contained which is, as of the date hereof, found to be materially false, incorrect or misleading or the Concessionaire is at any time hereafter found to be in breach thereof;
(up) the Concessionaire submits to the Authority MCGM any statement, notice or other Documentdocument, in written or electronic form, which has a material effect on the Authority's MCGM’s rights, obligations or interests and which is false in material particulars;
(vq) the Concessionaire has failed to fulfil any obligation, for which failure Termination has been specified in this Agreement;
(wr) the Concessionaire issues a Termination Notice in violation of the provisions of this Agreement; or
s) The Concessionaire commits a default in complying with any other provision of this Agreement if such default causes or may cause a Material Adverse Effect on the Authority;
(x) the Concessionaire fails to pay the Upfront Premium and Annual Concession Fee in accordance with Article 25; or
(y) the COD of Commercial Complex is not achieved by 2555th day of the Appointed Date or by such other extended period as agreed upon by AuthorityMCGM.
33.1.2 18.1.2 Without prejudice to any other rights or remedies which the Authority MCGM may have under this Agreement, upon occurrence of a Concessionaire Default, the Authority MCGM shall be entitled to terminate this Agreement by issuing a Termination Notice to the Concessionaire; provided that before issuing the Termination Notice, the Authority MCGM shall by a notice inform the Concessionaire of its intention to issue such Termination Notice and grant 15 (fifteen) days to the Concessionaire to make a representation, and may after the expiry of such 15 (fifteen) days, whether or not it is in receipt of such representation, issue the Termination Notice, subject to the provisions of Clause 33.1.3.
33.1.3 The Authority shall, if there be Senior Lenders, send a copy of its notice of intention to issue a Termination Notice referred to in Clause 33.1.2 to inform the Lenders’ Representative and grant 15 (fifteen) days to the Lenders’ Representative, for making a representation on behalf of the Senior Lenders stating the intention to substitute the Concessionaire in accordance with the Substitution Agreement. In the event the Authority receives such representation on behalf of Senior Lenders, it shall, in its discretion, either withhold Termination for a period not exceeding 180 (one hundred and eighty) days from the date of such representation or exercise its right of Suspension, as the case may be, for enabling the Lenders' Representative to exercise the Senior Lenders’ right of substitution in accordance with the Substitution Agreement. Provided that the Lenders’ Representative may, instead of exercising the Senior Lenders’ right of substitution, procure that the default specified in the notice is cured within the aforesaid period of 180 (one hundred and eighty) days, and upon such curing thereof, the Authority shall withdraw its notice referred to above and restore all the rights of the Concessionaire. Provided further that upon written request from the Lenders’ Representative and the Concessionaire, the Authority shall extend the aforesaid period of 180 (one hundred and eighty) days by such further period not exceeding 90 (ninety) days, as the Authority may deem appropriate.
Appears in 1 contract
Samples: Power Procurement Agreement
Termination for Concessionaire Default. 33.1.1 30.1.1 Save as otherwise provided in this Agreement, in the event that any of the defaults specified below shall have occurred, and the Concessionaire fails to cure the default within the Cure Period set forth below, or where no Cure Period is specified, then within a Cure Period of 60 (sixty) days, the Concessionaire shall be deemed to be in default of this Agreement (the "“Concessionaire Default"”), unless the default has occurred solely as a result of any breach of this Agreement by the Authority or due to Force Majeure. The defaults referred to herein shall includeinclude the following:
(a) the Performance Security or the Performance Guarantee, as the case may be, has been encashed and appropriated in accordance with Clause 9.4 respectively 9.2 and the Concessionaire fails to replenish or provide fresh Performance Security or the Performance Guarantee, as the case may be, within a Cure Period of 30 15 (thirtyfifteen) days;
(b) subsequent to the replenishment or furnishing of fresh Performance Security in accordance with Clause 9.2, the Concessionaire fails to meet any Condition Precedent or cure the Performance GuaranteeConcessionaire Default, as the case may be, in accordance with Clause 9.4 respectively, the Concessionaire fails to cure, within a Cure Period of 90 (ninety) days, the Concessionaire Default for which whole or part of the Performance Security or the Performance Guarantee, as the case may be, was appropriated, within a Cure Period of 120 (one hundred and twenty) days;
(c) the Concessionaire does not achieve the latest outstanding Project Milestone due in accordance with the provisions of Schedule-G and continues to be in default for 120 60 (one hundred and twentysixty) days;
(d) the Concessionaire abandons or manifests intention to abandon the construction or operation of the Project without the prior written consent of the Authority;
(e) Project Completion Date COD does not occur within the period specified in Clause 12.4.312.3.3;
(f) the Punch List items have not been completed within the period set forth in Clause 14.4.1;
(g) the Concessionaire is in breach of the Maintenance Requirements or the Safety Requirements, as the case may be, or commits repeated default in conforming to the Key Performance Indicators;
(h) the Concessionaire has failed to make any payment including Annual Concession Fee to the Authority within the period specified in this Agreement;
(i) an Escrow Default has occurred and the Concessionaire fails to cure the default within a Cure Period of 15 (fifteen) days;
(j) upon occurrence of a Financial Default, the Lenders’ Representative has by notice required the Authority to undertake Suspension or Termination, as the case may be, in accordance with the Substitution Agreement and the Concessionaire fails to cure the default within the Cure Period specified hereinabove;
(k) a breach of any of the Project Agreements by the Concessionaire has caused a Material Adverse Effect;
(l) the Concessionaire creates any Encumbrance in breach of this Agreement;
(m) the Concessionaire repudiates this Agreement or otherwise takes any action or evidences or conveys an intention not to be bound by the Agreement;
(n) a Change in Ownership has occurred in breach of the provisions of Clause 5.3;
(o) there is a transfer, pursuant to law either of (i) the rights and/or obligations of the Concessionaire under any of the Project Agreements, or of (ii) all or part of the assets or undertaking of the Concessionaire, and such transfer causes a Material Adverse Effect;
(p) an execution levied on any of the assets of the Concessionaire has caused a Material Adverse Effect;
(q) the Concessionaire is adjudged bankrupt or insolvent, or if a trustee or receiver is appointed for the Concessionaire or for the whole or material part of its assets that has a material bearing on the Project;
(r) the Concessionaire has been, or is in the process of being liquidated, dissolved, wound-up, amalgamated or reconstituted in a manner that would cause, in the reasonable opinion of the Authority, a Material Adverse Effect;
(s) occurrence of any Insolvency Event;
(t) the Concessionaire has been or is in the process of being amalgamated or reconstituted in a resolution for winding up manner that would cause, in the reasonable opinion of the Concessionaire is passedAuthority, or any petition for winding up of the Concessionaire is admitted by a court of competent jurisdiction and a provisional liquidator or receiver is appointed and such order has not been set aside within 90 (ninety) days of the date thereof or the Concessionaire is ordered to be wound up by Court except for the purpose of amalgamation or reconstruction; Material Adverse Effect provided that, as part of such amalgamation or reconstruction, the entire property, assets and undertaking of the Concessionaire are transferred to the amalgamated or reconstructed entity and that the amalgamated or reconstructed entity has unconditionally assumed the obligations of the Concessionaire under this Agreement and the Project Agreements; and provided that:
(i) the amalgamated or reconstructed entity has the capability and operating experience necessary for the performance of its obligations under this Agreement and the Project Agreements;
(ii) the amalgamated or reconstructed entity has the financial standing to perform its obligations under this Agreement and the Project Agreements and has a credit worthiness at least as good as that of the Concessionaire as at the Appointed Date; and
(iii) each of the Project Agreements remains in full force and effect;
(tu) any representation or warranty of the Concessionaire herein contained which is, as of the date hereof, found to be materially false, incorrect or misleading or the Concessionaire is at any time hereafter found to be in breach thereof;
(uv) the Concessionaire submits to the Authority any statement, notice or other Documentdocument, in written or electronic form, which has a material effect on the Authority's ’s rights, obligations or interests and which is false in material particulars;
(vw) the Concessionaire has failed to fulfil fulfill any obligation, for which failure Termination has been specified in this Agreement;
(wx) the Concessionaire issues a Termination Notice in violation of this Agreement; or
(y) the Concessionaire commits a default in complying with any other provision of this Agreement if such default causes a Material Adverse Effect on the Authority;
(x) the Concessionaire fails to pay the Upfront Premium and Annual Concession Fee in accordance with Article 25; or
(y) the COD of Commercial Complex is not achieved by 2555th day of the Appointed Date or by such other extended period as agreed upon by Authority.
33.1.2 30.1.2 Without prejudice to any other rights or remedies which the Authority may have under this Agreement, upon occurrence of a Concessionaire Default, the Authority shall be entitled to terminate this Agreement by issuing a Termination Notice to the Concessionaire; provided that before issuing the Termination Notice, the Authority shall shall, by a notice notice, inform the Concessionaire of its intention to issue such Termination Notice and grant 15 (fifteen) days to the Concessionaire to make a representation, and may after the expiry of such 15 (fifteen) days, whether or not it is in receipt of such representation, issue the Termination Notice, subject to the provisions of Clause 33.1.330.1.3.
33.1.3 30.1.3 The Authority shall, if there be Senior Lenders, send a copy of its notice of intention to issue a Termination Notice referred to in Clause 33.1.2 30.1.2 to inform the LendersXxxxxxx’ Representative and grant 15 (fifteen) days to the Lenders’ Representative, for making a representation on behalf of the Senior Lenders stating the intention to substitute the Concessionaire in accordance with the Substitution Agreement. In the event the Authority receives such representation on behalf of Senior Lenders, it shall, in its discretion, either withhold Termination for a period not exceeding 180 (one hundred and eighty) days from the date of such representation or exercise its right of Suspension, as the case may be, for enabling the Lenders' ’ Representative to exercise the Senior Lenders’ ' right of substitution in accordance with the Substitution Agreement. : Provided that the Lenders’ Representative may, instead of exercising the Senior Lenders’ right of substitution, procure that the default specified in the notice is cured within the aforesaid period of 180 (one hundred and eighty) days, and upon such curing thereof, the Authority shall withdraw its notice referred to above and restore all the rights of the Concessionaire. Provided further that upon written request from the Lenders’ Representative and the Concessionaire, the Authority shall extend the aforesaid period of 180 (one hundred and eighty) days by such further period not exceeding 90 (ninety) days, as the Authority may deem appropriate.
Appears in 1 contract
Samples: Concession Agreement
Termination for Concessionaire Default. 33.1.1 35.1.1 Save as otherwise provided in this Agreement, in the event that any of the defaults specified below shall have occurred, and the Concessionaire fails to cure the default within the Cure Period set forth belowbelow or within the Cure Period specified anywhere else in this Agreement, or where no Cure Period is specified, then within a Cure Period of 60 (sixtySixty) daysdays or as mutually agreed upon through written communication, the Concessionaire shall be deemed to be in default of this Agreement (the a "Concessionaire Default"), unless Default"),unless the default has occurred solely as a result of any breach of this Agreement by the Authority or due to a Force MajeureMajeure Event. The defaults referred to herein shall include:
(a) the Performance Security or the Performance Guarantee, as the case may be, has been encashed and appropriated in accordance with Clause Article 9.4 respectively and the Concessionaire fails to replenish or provide fresh Performance Security or the Performance Guarantee, as the case may be, within a Cure Period of 30 (thirty) days;
(b) subsequent to the replenishment or furnishing of fresh Performance Security or the Performance Guarantee, as the case may be, in accordance with Clause 9.4 respectively, the Concessionaire fails to cure, within a Cure Period of 90 (ninety) days, the Concessionaire Default for which whole or part of the Performance Security or the Performance Guarantee, as the case may be, was appropriated;
(c) the Concessionaire does not achieve the latest outstanding Project Milestone due in accordance with the provisions of Schedule-G and continues to be in default for 120 (one hundred and twenty) days;
(d) the Concessionaire abandons or manifests intention to abandon the construction or operation of the Project without the prior written consent of the Authority;
(ec) Project Completion Date does not occur within the period specified Concessionaire fails to undertake or complete the construction of the Mandatory Development Obligations in Clause 12.4.3accordance with Article 12;
(fd) the Punch List items have not been completed within the period set forth Concessionaire fails to achieve COD in Clause 14.4.1accordance with Article 15;
(g) the Concessionaire is in breach of the Maintenance Requirements or the Safety Requirements, as the case may be, or commits repeated default in conforming to the Key Performance Indicators;
(he) the Concessionaire has failed to make any payment to the Authority within the period specified in this Agreement;
(if) an Escrow Default has occurred and the Concessionaire fails to cure the default within a Cure Period of 15 (fifteen) days;
(jg) upon occurrence of a Financial Default, the Lenders’ Lender’s Representative has by notice required the Authority to undertake Suspension or Termination, as the case may be, in accordance with the Substitution Agreement and the Concessionaire fails to cure the default within the Cure Period specified hereinabove;
(kh) a breach of any of the Project Agreements by the Concessionaire has caused a Material Adverse Effect;
(li) the Concessionaire creates any Encumbrance in breach of this Agreement;
(mj) the Concessionaire repudiates this Agreement or otherwise takes any action or evidences evidence or conveys an intention not to be bound by the Agreement;
(nk) a Change in Ownership has occurred in breach of the provisions of Clause Article 5.3
(l) if the Concessionaire is declared as a willful defaulter by any of the Scheduled Banks in India;
(om) if the Concessionaire is declared unfit/negligible to continue as a “going concern” or to undertake the responsibilities as per this Agreement under an Indian Law;
(n) there is a transfer, pursuant to law either of (i) the rights and/or obligations of the Concessionaire under any of the Project Agreements, or of (ii) all or part of the assets or undertaking of the Concessionaire, and such transfer causes a Material Adverse Effect;
(po) an execution levied on any of the assets of the Concessionaire has caused a Material Adverse Effect;
(qp) the Concessionaire is adjudged bankrupt or insolvent, or if a trustee or receiver is appointed for the Concessionaire or for the whole or material part of its assets that has a material bearing on the Project;
(rq) the Concessionaire has been, or is in the process of being liquidated, dissolved, wound-up, amalgamated or reconstituted in a manner that would cause, in the reasonable opinion of the Authority, a Material Adverse Effect;
(sr) a resolution for winding up of the Concessionaire is passed, or any petition for winding up of the Concessionaire is admitted by a court of competent jurisdiction and a provisional liquidator or receiver is appointed and such order has not been set aside within 90 (ninety) days of the date thereof or the Concessionaire is ordered to be wound up by the Court except for the purpose of amalgamation or reconstruction; provided that, as part of such amalgamation or reconstruction, the entire property, assets and undertaking of the Concessionaire are transferred to the amalgamated or reconstructed entity and that the amalgamated or reconstructed entity has unconditionally assumed the obligations of the Concessionaire under this Agreement and the Project Agreements; and provided that:
(i) a. the amalgamated or reconstructed entity has the capability and operating experience necessary for the performance of its obligations under this Agreement and the Project Agreements;
(ii) b. the amalgamated or reconstructed entity has the financial standing to perform its obligations under this Agreement and the Project Agreements and has a credit worthiness at least as good as that of the Concessionaire as at the Appointed DateCOD; and
(iii) c. each of the Project Agreements remains in full force and effect;
(ts) any representation or warranty of the Concessionaire herein contained which is, as of the date hereof, found to be materially false, incorrect or misleading or the Concessionaire is at any time hereafter found to be in breach thereof;
(ut) the Concessionaire submits to the Authority any statement, notice or other Documentdocument, in written or electronic form, which has a material effect on the Authority's ’s rights, obligations or interests and which is false in material particulars;
(vu) the Concessionaire has failed to fulfil any obligation, for which failure failure, Termination has been specified in this Agreement;
(wv) the Concessionaire commits a default in complying with any other provision of this Agreement if such default causes cause a Material Adverse Effect on the Authority;
(w) the Concessionaire novates and/or assigns the agreement to any third party without any prior approval from the Concessioning Authority;
(x) the Concessionaire fails to pay the Upfront Premium and Annual Concession Fee is in accordance with Article 25; or
(y) the COD of Commercial Complex is not achieved by 2555th day repeated default/ breach of the Appointed Date Maintenance Requirements or by such other extended period the Safety Requirements, as agreed upon by Authoritythe case may be.
33.1.2 35.1.2 Without prejudice to any other rights or remedies which the Authority may have under this Agreement, upon occurrence of a Concessionaire Default, the Authority shall be entitled to terminate this Agreement by issuing a Termination Notice to the Concessionaire; provided that before issuing the Termination Notice, the Authority shall by a notice inform the Concessionaire of its intention to issue such Termination Notice and grant 15 30 (fifteenthirty) days to the Concessionaire to make a representation, and may after the expiry of such 15 30 (fifteenthirty) days, whether or not it is in receipt of such representation, issue the Termination Notice, subject to the provisions of Clause 33.1.335.1.3.
33.1.3 35.1.3 The Authority shall, if there be Senior Lenders, send a copy of its notice of intention to issue a Termination Notice referred to in Clause 33.1.2 35.1.2 to inform the Lenders’ ' Representative and grant 15 (fifteen) days to the Lenders’ ' Representative, for making a representation on behalf of the Senior Lenders stating the intention to substitute the Concessionaire in accordance with the Substitution Agreement. In the event the Authority receives such representation on behalf of Senior Lenders, it shall, in its discretion, either withhold Termination for a period not exceeding 180 (one hundred and eighty) days from the date of such representation or exercise its right of Suspension, as the case may be, for enabling the Lenders' Representative to exercise the Senior Lenders’ ' right of substitution in accordance with the Substitution Agreement. :
i) Provided that the Lenders’ ' Representative may, instead of exercising the Senior Lenders’ ' right of substitution, procure that the default specified in the notice is cured within the aforesaid period of 180 (one hundred and eighty) days, and upon such curing thereof, the Authority shall withdraw its notice referred to above and restore all the rights of the Concessionaire. :
ii) Provided further that upon written request from the Lenders’ ' Representative and the Concessionaire, the Authority shall extend the aforesaid period of 180 (one hundred and eighty) days by such further period not exceeding 90 (ninety) days, as the Authority may deem appropriate.
Appears in 1 contract
Samples: Concession Agreement
Termination for Concessionaire Default. 33.1.1 19.1.1 Save as otherwise provided in this Agreement, in the event that any of the defaults specified below shall have occurred, and the Concessionaire fails to cure the default within the Cure Period set forth below, or where no Cure Period is specified, then within a Cure Period of 60 (sixty) days, the Concessionaire shall be deemed to be in default of this Agreement (the "a “Concessionaire Default"”), unless the default has occurred solely as a result of any breach of this Agreement by the Concessioning Authority or due to Force Majeure. The defaults referred to herein shall include:
(a) the O&M Performance Security or the Performance Guarantee, as the case may be, has been encashed and appropriated in accordance with Clause 9.4 respectively 9.2 and the Concessionaire fails to replenish or provide fresh O&M Performance Security or the Performance Guarantee, as the case may be, within a Cure Period of 30 (thirty) days;
(b) subsequent to the replenishment or furnishing of fresh O&M Performance Security or the Performance Guarantee, as the case may be, in accordance with Clause 9.4 respectively9.2, the Concessionaire fails to cure, within a Cure Period of 90 (ninety) days, the Concessionaire Default for which whole or part of the O&M Performance Security or the Performance Guarantee, as the case may be, was appropriated;
(c) the Concessionaire does not achieve the latest outstanding Project Milestone due is in accordance with the provisions material breach of Schedule-G and continues to be its obligations as laid down in default for 120 (one hundred and twenty) daysthis Concession Agreement;
(d) the Concessionaire abandons or manifests intention to abandon the construction or operation and maintenance of the Project Trauma Centre without the prior written consent of the Concessioning Authority;
(e) Project Completion Date does not occur within the period specified in Clause 12.4.3;
(f) the Punch List items have not been completed within the period set forth in Clause 14.4.1;
(g) the Concessionaire is in breach of the Maintenance Requirements or the Safety Requirements, as the case may be, or commits repeated default in conforming to the Key Performance Indicators;
(h) the Concessionaire has failed to make any payment to the Authority within the period specified in this Agreement;
(i) an Escrow Default has occurred and the Concessionaire fails to cure the default within a Cure Period of 15 (fifteen) days;
(jf) upon occurrence of a Financial Default, the Lenders’ Representative has by notice required the Concessioning Authority to undertake Suspension or Termination, as the case may be, in accordance with the Substitution Agreement and the Concessionaire fails to cure the default within the Cure Period specified hereinabovea period of 15 (fifteen) days of such notice;
(kg) a breach of any of the Project Agreements by the Concessionaire has caused a Material Adverse Effect;
(lh) the Concessionaire creates any Encumbrance in breach of this Agreement;
(mi) the Concessionaire repudiates this Agreement or otherwise takes any action or evidences or conveys an intention not to be bound by the Agreement;
(nj) a Change in Ownership has occurred in breach of the provisions of Clause 5.3;
(ok) there is a transfer, pursuant to law either of (i) the rights and/or obligations of the Concessionaire under any of the Project Agreements, or of (ii) all or part of the assets or undertaking of the Concessionaire, and such transfer causes a Material Adverse Effect;
(pl) an execution levied on any of the assets of the Concessionaire has caused a Material Adverse Effect;
(qm) the Concessionaire is adjudged bankrupt or insolvent, or if a trustee or receiver is appointed for the Concessionaire or for the whole or material part of its assets that has a material bearing on the Project;
(rn) the Concessionaire has been, or is in the process of being liquidated, dissolved, wound-up, amalgamated or reconstituted in a manner that would cause, in the reasonable opinion of the Concessioning Authority, a Material Adverse Effect;
(so) a resolution for winding up of the Concessionaire is passed, or any petition for winding up of the Concessionaire is admitted by a court of competent jurisdiction and a provisional liquidator or receiver is appointed and such order has not been set aside within 90 (ninety) days of the date thereof or the Concessionaire is ordered to be wound up by Court except for the purpose of amalgamation or reconstruction; provided that, as part of such amalgamation or reconstruction, the entire property, assets and undertaking of the Concessionaire are transferred to the amalgamated or reconstructed entity and that the amalgamated or reconstructed entity has unconditionally assumed the obligations of the Concessionaire under this Agreement and the Project Agreements; and provided that:
(i) the amalgamated or reconstructed entity has the capability and operating experience necessary for the performance of its obligations under this Agreement and the Project Agreements;
(ii) the amalgamated or reconstructed entity has the financial standing to perform its obligations under this Agreement and the Project Agreements and has a credit worthiness at least as good as that of the Concessionaire as at the Appointed Date; and
(iii) each of the Project Agreements remains in full force and effect;
(tp) any representation or warranty of the Concessionaire herein contained which is, as of the date hereof, found to be materially false, incorrect or misleading false or the Concessionaire is at any time hereafter found to be in breach thereof;
(uq) the Concessionaire submits to the Concessioning Authority any statement, notice or other Document, in written or electronic form, statement which has a material effect on the Concessioning Authority's ’s rights, obligations or interests and which is false in material particulars;
(vr) the Concessionaire has failed to fulfil any obligation, for which failure Termination has been specified in this Agreement;; or
(ws) the Concessionaire commits a default in complying with any other provision of this Agreement if such a default causes a Material Adverse Effect on the Authority;
(x) the Concessionaire fails to pay the Upfront Premium and Annual Concession Fee in accordance with Article 25; or
(y) the COD of Commercial Complex is not achieved by 2555th day of the Appointed Date or by such other extended period as agreed upon by Concessioning Authority.
33.1.2 19.1.2 Without prejudice to any other rights or remedies which the Concessioning Authority may have under this Agreement, upon occurrence of a Concessionaire Default, the Concessioning Authority shall be entitled to terminate this Agreement by issuing a Termination Notice to the Concessionaire; provided that before issuing the Termination Notice, the Concessioning Authority shall by a notice inform the Concessionaire of its intention to issue such Termination Notice and grant 15 (fifteen) days to the Concessionaire to make a representation, and may after the expiry of such 15 (fifteen) days, whether or not it is in receipt of such representation, issue the Termination Notice, subject to the provisions of Clause 33.1.3clause 19.1.3.
33.1.3 19.1.3 The Concessioning Authority shall, if there be Senior Lenders, send a copy of its notice of intention to issue a Termination Notice referred to in Clause 33.1.2 19.1.2 to inform the Lenders’ Representative and grant 15 (fifteen) days to the Lenders’ Representative, for making a representation on behalf of the Senior Lenders stating the intention to substitute the Concessionaire in accordance with the Substitution Agreement. In the event the Authority receives such representation on behalf of Senior Lenders, it shall, in its discretion, either withhold Termination for a period not exceeding 180 (one hundred and eighty) days from the date of such representation or exercise its right of Suspension, as the case may be, for enabling the Lenders' Representative to exercise the Senior Lenders’ right of substitution in accordance with the Substitution Agreement. Provided that the Lenders’ Representative may, instead of exercising the Senior Lenders’ right of substitution, procure that the default specified in the notice is cured within the aforesaid period of 180 (one hundred and eighty) days, and upon such curing thereof, the Authority shall withdraw its notice referred to above and restore all the rights of the Concessionaire. Provided further that upon written request from the Lenders’ Representative and the Concessionaire, the Authority shall extend the aforesaid period of 180 (one hundred and eighty) days by such further period not exceeding 90 (ninety) days, as the Authority may deem appropriate.:
Appears in 1 contract
Samples: Concession Agreement
Termination for Concessionaire Default. 33.1.1 38.1.1 Save as otherwise provided in this Agreement, in the event that any of the defaults specified below shall have occurred, and the Concessionaire fails to cure the default within the Cure Period set forth below, or where no Cure Period is specified, then within a Cure Period of 60 (sixty) days, the Concessionaire shall be deemed to be in default of this Agreement (the "“Concessionaire Default"”), unless the default has occurred solely as a result of any breach of this Agreement by the Authority or due to Force Majeure. The defaults referred to herein shall include:
(a) the Performance Security or the Performance Guarantee, as the case may be, has been encashed and appropriated in accordance with Clause 9.4 9.2 and Clause 9.5, respectively and the Concessionaire fails to replenish or provide fresh Performance Security or the Performance Guarantee, as the case may be, Guarantee within a Cure Period of 30 (thirty) days;
(b) subsequent to the replenishment or furnishing of fresh Performance Security or the Performance Guarantee, as the case may be, in accordance with Clause 9.4 9.2 and Cause 9.5, respectively, the Concessionaire fails to cure, within a Cure Period of 90 (ninety) days, the Concessionaire Default for which whole or part of the Performance Security or the Performance Guarantee, as the case may be, Guarantee was appropriated;
(c) the Concessionaire does not achieve the latest outstanding Project Milestone due in accordance with the provisions of Schedule-G Schedule - H and continues to be in default for 120 (one hundred and twenty) days;
(d) the Concessionaire theConcessionaire abandons or manifests intention to abandon the construction or operation of the Project HealthcareNetwork without the prior written consent of the Authority;
(e) Project Completion Date does not occur within the period specified in Clause 12.4.312.3.3;
(f) the Punch List items have not been completed within the period set forth in Clause 14.4.1;
(g) the Concessionaire is in breach of the O&M obligations as set forth in Clause 17.1.1, Maintenance Requirements or the Safety Requirements, as the case may be, or commits repeated default in conforming to the Key Performance Indicators;
(h) the Concessionaire has failed to make any payment to the Authority within the period specified in this Agreement;
(i) an Escrow Default has occurred and the Concessionaire fails to cure the default within a Cure Period of 15 (fifteen) days;
(j) upon occurrence of a Financial Default, the Lenders’ Lenders‟ Representative has by notice required the Authority to undertake Suspension or Termination, as the case may be, in accordance with the Substitution Agreement and the Concessionaire fails to cure the default within the Cure Period specified hereinabove;
(kj) a breach of any of the Project Agreements by the Concessionaire has caused a Material Adverse Effect;
(lk) the Concessionaire creates any Encumbrance in breach of this Agreement;
(ml) the Concessionaire repudiates this Agreement or otherwise takes any action or evidences or conveys an intention not to be bound by the Agreement;
(nm) a Change in Ownership has occurred in breach of the provisions of Clause 5.3Clause5.3;
(on) there is a transfer, pursuant to law either of (i) the rights and/or obligations of the Concessionaire under any of the Project Agreements, or of (ii) all or part of the assets or undertaking of the Concessionaire, and such transfer causes a Material Adverse Effect;
(po) an execution levied on any of the assets of the Concessionaire has caused a Material Adverse Effect;
(qp) the Concessionaire is adjudged bankrupt or insolvent, or if a trustee or receiver is appointed for the Concessionaire or for the whole or material part of its assets that has a material bearing on the Project;
(rq) the Concessionaire has been, or is in the process of being liquidated, dissolved, wound-up, amalgamated or reconstituted in a manner that would cause, in the reasonable opinion of the Authority, a Material Adverse Effect;
(sr) a resolution for winding up of the Concessionaire is passed, or any petition for winding up of the Concessionaire is admitted by a court of competent jurisdiction and a provisional liquidator or receiver is appointed and such order has not been set aside within 90 (ninety) days of the date thereof or the Concessionaire is ordered to be wound up by Court except for the purpose of amalgamation or reconstruction; provided that, as part of such amalgamation or reconstruction, the entire property, assets and undertaking of the Concessionaire are transferred to the amalgamated or reconstructed entity and that the amalgamated or reconstructed entity has unconditionally assumed the obligations of the Concessionaire under this Agreement and the Project Agreements; and provided that:
(i) the amalgamated or reconstructed entity has the capability and operating experience necessary for the performance of its obligations under this Agreement and the Project Agreements;
(ii) the amalgamated or reconstructed entity has the financial standing to perform its obligations under this Agreement and the Project Agreements and has a credit worthiness at least as good as that of the Concessionaire as at the Appointed Date; and
(iii) each of the Project Agreements remains in full force and effect;
(ts) any representation or warranty of the Concessionaire herein contained which is, as of the date hereof, found to be materially false, incorrect or misleading or the Concessionaire is at any time hereafter found to be in breach thereof;
(ut) the Concessionaire submits to the Authority any statement, notice or other Documentdocument, in written or electronic form, which has a material effect on the Authority's Authority‟s rights, obligations or interests and which is false in material particulars;
(vu) the Concessionaire has failed to fulfil any obligation, for which failure Termination has been specified in this Agreement;; or
(wv) the Concessionaire commits a default in complying with any other provision of this Agreement if such default causes a Material Adverse Effect on the Authority;
(x) the Concessionaire fails to pay the Upfront Premium and Annual Concession Fee in accordance with Article 25; or
(y) the COD of Commercial Complex is not achieved by 2555th day of the Appointed Date or by such other extended period as agreed upon by Authority.
33.1.2 38.1.2 Without prejudice to any other rights or remedies which the Authority may have under this Agreement, upon occurrence of a Concessionaire Default, the Authority shall be entitled to terminate this Agreement by issuing a Termination Notice to the Concessionaire; provided that before issuing the Termination Notice, the Authority shall by a notice inform the Concessionaire of its intention to issue such Termination Notice and grant 15 (fifteen) days to the Concessionaire to make a representation, and may after the expiry of such 15 (fifteen) days, whether or not it is in receipt of such representation, issue the Termination Notice, subject to the provisions of Clause 33.1.338.1.3.
33.1.3 38.1.3 The Authority shall, if there be Senior Lenders, send a copy of its notice of intention to issue a Termination Notice referred to in Clause 33.1.2 38.1.2 to inform the Lenders’ Lenders‟ Representative and grant 15 (fifteen) days to the Lenders’ Lenders‟ Representative, for making a representation on behalf of the Senior Lenders stating the intention to substitute the Concessionaire in accordance with the Substitution Agreement. In the event the Authority receives such representation on behalf of Senior Lenders, it shall, in its discretion, either withhold Termination for a period not exceeding 180 (one hundred and eighty) days from the date of such representation or exercise its right of Suspension, as the case may be, for enabling the Lenders' Lenders‟ Representative to exercise the Senior Lenders’ Lenders‟ right of substitution in accordance with the Substitution Agreement. : Provided that the Lenders’ Lenders‟ Representative may, instead of exercising the Senior Lenders’ Lenders‟ right of substitution, procure that the default specified in the notice is cured within the aforesaid period of 180 (one hundred and eighty) days, and upon such curing thereof, the Authority shall withdraw its notice referred to above and restore all the rights of the Concessionaire. : Provided further that upon written request from the Lenders’ Lenders‟ Representative and the Concessionaire, the Authority shall extend the aforesaid period of 180 (one hundred and eighty) days by such further period not exceeding 90 (ninety) days, as the Authority may deem appropriate.
Appears in 1 contract
Samples: Concession Agreement
Termination for Concessionaire Default. 33.1.1 Save as otherwise provided in this Agreement, in the event that any of the defaults specified below shall have occurred, and the Concessionaire fails to cure the default within the Cure Period set forth below, or where no Cure Period is specified, then within a Cure Period of 60 (sixty) days, the Concessionaire shall be deemed to be in default of this Agreement (the "“Concessionaire Default"”), unless the default has occurred solely as a result of any breach of this Agreement by the Authority or due to Force Majeure. The defaults referred to herein shall include:
(a) : the Performance Security or the Performance Guarantee, as the case may be, has been encashed en-cashed and appropriated in accordance with Clause 9.4 respectively 9.2 and the Concessionaire fails to replenish or provide fresh Performance Security or the Performance Guarantee, as the case may be, within a Cure Period of 30 (thirty) days;
(b) ; subsequent to the replenishment or furnishing of fresh Performance Security or the Performance Guarantee, as the case may be, in accordance with Clause 9.4 respectively9.2, the Concessionaire fails to cure, within a Cure Period of 90 (ninety) days, the Concessionaire Default for which whole or part of the Performance Security or the Performance Guarantee, as the case may be, was appropriated;
(c) ; the Concessionaire does not achieve the latest outstanding Project Milestone due in accordance with the provisions of Schedule-G Schedule N and continues to be in default for 120 (one hundred and twenty) days;
(d) ; the Concessionaire abandons or manifests intention to abandon the construction or operation of the Project Storage Facility without the prior written consent of the Authority;
(e) ; Project Completion Date does not occur within the period specified in Clause 12.4.3;
(f) 12.3.3; the Punch List items have not been completed within the period set forth in Clause 14.4.1;
(g) ; the Concessionaire is in breach of the Maintenance Requirements or the Safety Requirements, as the case may be, or commits repeated default in conforming to the Key Performance Indicators;
(h) ; the Concessionaire has failed to make any payment to the Authority within the period specified in this Agreement;
(i) ; an Escrow Default has occurred and the Concessionaire fails to cure the default within a Cure Period of 15 (fifteen) days;
(j) ; upon occurrence of a Financial Default, the Lenders’ Representative has by notice required the Authority to undertake Suspension or Termination, as the case may be, in accordance with the Substitution Agreement and the Concessionaire fails to cure the default within the Cure Period specified hereinabove;
(k) ; a breach of any of the Project Agreements by the Concessionaire has caused a Material Adverse Effect;
(l) ; the Concessionaire creates any Encumbrance in breach of this Agreement;
(m) ; the Concessionaire repudiates this Agreement or otherwise takes any action or evidences or conveys an intention not to be bound by the Agreement;
(n) ; a Change in Ownership has occurred in breach of the provisions of Clause 5.3;
(o) 5.3 there is a transfer, pursuant to law either of (i) the rights and/or obligations of the Concessionaire under any of the Project Agreements, or of (ii) all or part of the assets or undertaking of the Concessionaire, and such transfer causes a Material Adverse Effect;
(p) ; an execution levied on any of the assets of the Concessionaire has caused a Material Adverse Effect;
(q) Effect the Concessionaire is adjudged bankrupt or insolvent, or if a trustee or receiver is appointed for the Concessionaire or for the whole or material part of its assets that has a material bearing on the Project;
(r) ; the Concessionaire has been, or is in the process of being liquidated, dissolved, wound-up, amalgamated or reconstituted in a manner that would cause, in the reasonable opinion of the Authority, a Material Adverse Effect;
(s) ; a resolution for winding up of the Concessionaire is passed, or any petition for winding up of the Concessionaire is admitted by a court of competent jurisdiction and a provisional liquidator or receiver is appointed and such order has not been set aside within 90 (ninety) days of the date thereof or the Concessionaire is ordered to be wound up by Court except for the purpose of amalgamation or reconstruction; provided that, as part of such amalgamation or reconstruction, the entire property, assets and undertaking of the Concessionaire are transferred to the amalgamated or reconstructed entity and that the amalgamated or reconstructed entity has unconditionally assumed the obligations of the Concessionaire under this Agreement and the Project Agreements; and provided that:
(i) : the amalgamated or reconstructed entity has the capability and operating experience necessary for the performance of its obligations under this Agreement and the Project Agreements;
(ii) ; the amalgamated or reconstructed entity has the financial standing to perform its obligations under this Agreement and the Project Agreements and has a credit worthiness at least as good as that of the Concessionaire as at the Appointed Date; and
(iii) and each of the Project Agreements remains in full force and effect;
(t) ; any representation or warranty of the Concessionaire herein contained which is, as of the date hereof, found to be materially false, incorrect or misleading or the Concessionaire is at any time hereafter found to be in breach thereof;
(u) ; the Concessionaire submits to the Authority any statement, notice or other Documentdocument, in written or electronic form, which has a material effect on the Authority's ’s rights, obligations or interests and which is false in material particulars;
(v) ; the Concessionaire has failed to fulfil any obligation, for which failure Termination has been specified in this Agreement;
(w) ; or the Concessionaire commits a default in complying with any other provision of this Agreement if such a default causes a Material Adverse Effect on the Authority;
(x) . the Concessionaire fails to pay achieve a monthly Availability of 96% (ninety six cent) for a period of 6 (six) consecutive months or for a cumulative period of 6 (six) months within any continuous period of 18 (eighteen) months, save and except to the Upfront Premium and Annual Concession Fee in accordance with Article 25; or
extent of Non-Availability caused by (yi) the COD of Commercial Complex is not achieved by 2555th day a Force Majeure Event, or (ii) an act or omission of the Appointed Date or by such other extended period as agreed upon by Authority.
33.1.2 Without prejudice , not occurring due to any other rights or remedies which the Authority may have under this Agreement, upon occurrence default of a Concessionaire Default, the Authority shall be entitled to terminate this Agreement by issuing a Termination Notice to the Concessionaire; provided that before issuing the Termination Notice, the Authority shall by entire quantity dispatched pursuant to a notice inform the Concessionaire of its intention Dispatch Notice is found to issue such Termination Notice and grant 15 be Rejected Food Grains on 3 (fifteenthree) days to the Concessionaire to make a representation, and may after the expiry of such 15 (fifteen) days, whether or not it is in receipt of such representation, issue the Termination Notice, subject to the provisions of Clause 33.1.3.
33.1.3 The Authority shall, if there be Senior Lenders, send a copy of its notice of intention to issue a Termination Notice referred to in Clause 33.1.2 to inform the Lenders’ Representative and grant 15 (fifteen) days to the Lenders’ Representative, for making a representation on behalf of the Senior Lenders stating the intention to substitute the Concessionaire in accordance with the Substitution Agreement. In the event the Authority receives such representation on behalf of Senior Lenders, it shall, in its discretion, either withhold Termination for a period not exceeding 180 (one hundred and eighty) days from the date of such representation or exercise its right of Suspension, as the case may be, for enabling the Lenders' Representative to exercise the Senior Lenders’ right of substitution in accordance with the Substitution Agreement. Provided that the Lenders’ Representative may, instead of exercising the Senior Lenders’ right of substitution, procure that the default specified in the notice is cured within the aforesaid period of 180 (one hundred and eighty) days, and upon such curing thereof, the Authority shall withdraw its notice referred to above and restore all the rights of the Concessionaire. Provided further that upon written request from the Lenders’ Representative and the Concessionaire, the Authority shall extend the aforesaid period of 180 (one hundred and eighty) days by such further period not exceeding 90 (ninety) days, as the Authority may deem appropriate.consecutive occasions;
Appears in 1 contract
Samples: Concession Agreement
Termination for Concessionaire Default. 33.1.1 37.1.1 Save as otherwise provided in this Agreement, in the event that any of the defaults specified below shall have occurred, and the Concessionaire fails to cure the default within the Cure Period set forth below, or where no Cure Period is specified, then within a Cure Period of 60 (sixty) days, the Concessionaire shall be deemed to be in default of this Agreement (the "“Concessionaire Default"”), unless the default has occurred solely as a result of any breach of this Agreement by the Authority MPRDC or due to Force Majeure. The defaults referred to herein shall include:
(a) the Performance Security or the Performance Guarantee, as the case may be, has been encashed and appropriated in accordance with Clause 9.4 respectively 9.2 and the Concessionaire fails to replenish or provide fresh Performance Security or the Performance Guarantee, as the case may be, within a Cure Period of 30 (thirty) days;
(b) subsequent to the replenishment or furnishing of fresh Performance Security or the Performance Guarantee, as the case may be, in accordance with Clause 9.4 respectively9.2, the Concessionaire fails to cure, within a Cure Period of 90 (ninety) days, the Concessionaire Default for which whole or part of the Performance Security or the Performance Guarantee, as the case may be, was appropriated;
(c) the Concessionaire does not achieve the latest outstanding Project Milestone due in accordance with the provisions of Schedule-G and continues to be in default for 120 (one hundred and twenty) days;
(d) the Concessionaire abandons or manifests intention to abandon the construction or operation of the Project Highway without the prior written consent of the AuthorityMPRDC;
(e) Project Completion Date does not occur within the period specified in Clause 12.4.3;
(f) the Punch List items have not been completed within the period set forth in Clause 14.4.1;
(g) the Concessionaire is in breach of the Maintenance Requirements or the Safety Requirements, as the case may be, or commits repeated default in conforming to the Key Performance Indicators;
(h) the Concessionaire has failed to make any payment to the Authority MPRDC within the period specified in this Agreement;
(i) an Escrow Default has occurred and the Concessionaire fails to cure the default within a Cure Period of 15 (fifteen) days;
(j) upon occurrence of a Financial Default, the Lenders’ Representative has by notice required the Authority MPRDC to undertake Suspension or Termination, as the case may be, in accordance with the Substitution Agreement and the Concessionaire fails to cure the default within the Cure Period specified hereinabove;
(k) a breach of any of the Project Agreements by the Concessionaire has caused a Material Adverse Effect;
(l) the Concessionaire creates any Encumbrance in breach of this Agreement;
(m) the Concessionaire repudiates this Agreement or otherwise takes any action or evidences or conveys an intention not to be bound by the Agreement;
(n) a Change in Ownership has occurred in breach of the provisions of Clause 5.3;
(o) there is a transfer, pursuant to law either of (i) the rights and/or obligations of the Concessionaire under any of the Project Agreements, or of (ii) all or part of the assets or undertaking of the Concessionaire, and such transfer causes a Material Adverse Effect;
(p) an execution levied on any of the assets of the Concessionaire has caused a Material Adverse Effect;
(q) the Concessionaire is adjudged bankrupt or insolvent, or if a trustee or receiver is appointed for the Concessionaire or for the whole or material part of its assets that has a material bearing on the Project;
(r) the Concessionaire has been, or is in the process of being liquidated, dissolved, wound-up, amalgamated or reconstituted in a manner that would cause, in the reasonable opinion of the AuthorityMPRDC, a Material Adverse Effect;
(s) a resolution for winding up of the Concessionaire is passed, or any petition for winding up of the Concessionaire is admitted by a court of competent jurisdiction and a provisional liquidator or receiver is appointed and such order has not been set aside within 90 (ninety) days of the date thereof or the Concessionaire is ordered to be wound up by Court except for the purpose of amalgamation or reconstruction; provided that, as part of such amalgamation or reconstruction, the entire property, assets and undertaking of the Concessionaire are transferred to the amalgamated or reconstructed entity and that the amalgamated or reconstructed entity has unconditionally assumed the obligations of the Concessionaire under this Agreement and the Project Agreements; and provided that:
(i) the amalgamated or reconstructed entity has the capability and operating experience necessary for the performance of its obligations under this Agreement and the Project Agreements;
(ii) the amalgamated or reconstructed entity has the financial standing to perform its obligations under this Agreement and the Project Agreements and has a credit worthiness at least as good as that of the Concessionaire as at the Appointed Date; and
(iii) each of the Project Agreements remains in full force and effect;
(t) any representation or warranty of the Concessionaire herein contained which is, as of the date hereof, found to be materially false, incorrect or misleading or the Concessionaire is at any time hereafter found to be in breach thereof;
(u) the Concessionaire submits to the Authority MPRDC any statement, notice or other Documentdocument, in written or electronic form, which has a material effect on the Authority's MPRDC ’s rights, obligations or interests and which is false in material particulars;
(v) the Concessionaire has failed to fulfil any obligation, for which failure Termination has been specified in this Agreement;; or
(w) the Concessionaire commits a default in complying with any other provision of this Agreement if such default causes a Material Adverse Effect on the Authority;
(x) the Concessionaire fails to pay the Upfront Premium and Annual Concession Fee in accordance with Article 25; or
(y) the COD of Commercial Complex is not achieved by 2555th day of the Appointed Date or by such other extended period as agreed upon by AuthorityMPRDC.
33.1.2 37.1.2 Without prejudice to any other rights or remedies which the Authority MPRDC may have under this Agreement, upon occurrence of a Concessionaire Default, the Authority MPRDC shall be entitled to terminate this Agreement by issuing a Termination Notice to the Concessionaire; provided that before issuing the Termination Notice, the Authority MPRDC shall by a notice inform the Concessionaire of its intention to issue such Termination Notice and grant 15 (fifteen) days to the Concessionaire to make a representation, and may after the expiry of such 15 (fifteen) days, whether or not it is in receipt of such representation, issue the Termination Notice, subject to the provisions of Clause 33.1.3clause 37.1.3.
33.1.3 The Authority 37.1.3 MPRDC shall, if there be Senior Lenders, send a copy of its notice of intention to issue a Termination Notice referred to in Clause 33.1.2 37.1.2 to inform the Lenders’ Representative and grant 15 (fifteen) days to the Lenders’ Representative, for making a representation on behalf of the Senior Lenders stating the intention to substitute the Concessionaire in accordance with the Substitution Agreement. In the event the Authority MPRDC receives such representation on behalf of Senior Lenders, it shall, in its discretion, either withhold Termination for a period not exceeding 180 (one hundred and eighty) days from the date of such representation or exercise its right of Suspension, as the case may be, for enabling the Lenders' ’ Representative to exercise the Senior Lenders’ right of substitution in accordance with the Substitution Agreement. : Provided that the Lenders’ Representative may, instead of exercising the Senior Lenders’ right of substitution, procure that the default specified in the notice is cured within the aforesaid period of 180 (one hundred and eighty) days, and upon such curing thereof, the Authority MPRDC shall withdraw its notice referred to above and restore all the rights of the Concessionaire. : Provided further that upon written request from the Lenders’ Representative and the Concessionaire, the Authority MPRDC shall extend the aforesaid period of 180 (one hundred and eighty) days by such further period not exceeding 90 (ninety) days, as the Authority MPRDC may deem appropriate.
Appears in 1 contract
Samples: Concession Agreement
Termination for Concessionaire Default. 33.1.1 35.1.1 Save as otherwise provided in this Agreement, in the event that any of the defaults specified below shall have occurred, and the Concessionaire fails to cure the default within the Cure Period set forth below, or where no Cure Period is specified, then within a Cure Period of 60 180 (sixtyone hundred eighty) days, the Concessionaire shall be deemed to be in default of this Agreement (the a "Concessionaire Default"), unless the default has occurred solely as a result of any breach of this Agreement by the Authority or due to Force Majeure. The defaults referred to herein shall include:
(a) the Construction Period Performance Security or the Performance Guarantee, as the case may be, has been encashed and appropriated in accordance with Clause 9.4 respectively 9.2 and the Concessionaire fails to replenish or provide fresh Construction Period Performance Security or the Performance Guarantee, as the case may be, within a Cure Period of 30 (thirty) days;
(b) subsequent to the replenishment or furnishing of fresh Construction Period Performance Security or the Performance Guarantee, as the case may be, in accordance with Clause 9.4 respectively9.2, the Concessionaire fails to cure, within a Cure Period of 90 (ninety) days, the Concessionaire Default for which whole or part of the Construction Period Performance Security or the Performance Guarantee, as the case may be, was appropriated;
(c) the Concessionaire does not achieve the latest outstanding Project Milestone due in accordance with the provisions of Schedule-G and continues to be in default for 120 90 (one hundred and twentyninety) days;
(d) the Concessionaire abandons or manifests intention to abandon the construction or operation of the Project without the prior written consent of the Authority;
(e) Project Completion Date does not occur within the period specified in Clause 12.4.3;
(f) the Punch List items have not been completed within the period set forth in Clause 14.4.1;Clause14.4.1:
(g) the Concessionaire is in breach of the Maintenance Requirements or the Safety Requirements, as the case may be, or commits repeated default in conforming to the Key Performance Indicators;:
(h) the Concessionaire has failed to make any payment to the Authority within the period specified in this Agreement;:
(i) an Escrow Default has occurred and the Concessionaire fails to cure the default within a Cure Period of 15 (fifteen) days;
(j) upon occurrence of a Financial Default, the Lenders’ ' Representative has by notice required the Authority to undertake Suspension or Termination, as the case may be, in accordance with the Substitution Agreement and the Concessionaire fails to cure the default within the Cure Period specified hereinabovein the Substitution Agreement;
(k) a breach of any of the Project Agreements by the Concessionaire has caused a Material Adverse Effect;
(l) the Concessionaire creates any Encumbrance in breach of this Agreement;
(m) the Concessionaire repudiates this Agreement or otherwise takes any action or evidences or conveys an intention not to be bound by the Agreement;
(n) a Change in Ownership has occurred in breach of the provisions of Clause 5.3;
(o) there is a transfer, pursuant to law either of (i) the rights and/or obligations of the Concessionaire under any of the Project Agreements, or of (ii) all or part of the assets or undertaking of the Concessionaire, and such transfer causes a Material Adverse Effect;
(p) an execution levied on any of the assets of the Concessionaire has caused a Material Adverse Effect;
(q) the Concessionaire is adjudged bankrupt or insolvent, or if a trustee or receiver is appointed for the Concessionaire or for the whole or material part of its assets that has a material bearing on the Project;
(r) the Concessionaire has been, or is in the process of being liquidated, dissolved, wound-up, amalgamated or reconstituted in a manner that would cause, in the reasonable opinion of the Authority, a Material Adverse Effect;
(s) a resolution for winding up of the Concessionaire is passed, or any petition for winding up of fails to make payment towards Revenue Share Payment beyond 60 days from the Concessionaire is admitted by a court of competent jurisdiction and a provisional liquidator or receiver is appointed and such order has not been set aside within 90 (ninety) days of the due date thereof or the Concessionaire is ordered to be wound up by Court except for the purpose of amalgamation or reconstruction; provided that, as part of such amalgamation or reconstruction, the entire property, assets and undertaking of the Concessionaire are transferred to the amalgamated or reconstructed entity and that the amalgamated or reconstructed entity has unconditionally assumed the obligations of the Concessionaire under this Agreement and the Project Agreements; and provided that:aforesaid payment.
(i) the amalgamated or reconstructed entity has the capability and operating experience necessary for the performance of its obligations under this Agreement and the Project Agreements;
(ii) the amalgamated or reconstructed entity has the financial standing to perform its obligations under this Agreement and the Project Agreements and has a credit worthiness at least as good as that of the Concessionaire as at the Appointed Date; and
(iii) each of the Project Agreements remains in full force and effect;
(t) any representation or warranty of the Concessionaire herein contained which is, as of the date hereof, found to be materially false, incorrect or misleading false or the Concessionaire is at any time hereafter found to be in breach thereof;
(u) the Concessionaire submits to the Authority any statement, notice or other Document, in written or electronic form, statement which has a material effect on the Authority's rights, obligations or interests and which is false in material particulars;
(v) the Concessionaire has failed to fulfil fulfill any obligation, for which failure Termination has been specified in this Agreement;; or
(w) the Concessionaire commits a default in complying with any other provision of this Agreement if such a default causes a Material Adverse Effect on the Authority;
(x) the Concessionaire fails to pay the Upfront Premium and Annual Concession Fee in accordance with Article 25; or
(y) the COD of Commercial Complex is not achieved by 2555th day of the Appointed Date or by such other extended period as agreed upon by Authority.
33.1.2 35.1.2 Without prejudice to any other rights or remedies which the Authority may have under this Agreement, upon occurrence of a Concessionaire Default, the Authority shall be entitled to terminate this Agreement by issuing a Termination Notice to the Concessionaire; provided that before issuing the Termination Notice, the Authority shall by a notice inform the Concessionaire of its intention to issue such Termination Notice and grant 15 (fifteen) days to the Concessionaire to make a representation, and may after the expiry of such 15 (fifteen) days, whether or not it is in receipt of such representation, issue the Termination Notice, subject to the provisions of Clause 33.1.3clause 35.1.3.
33.1.3 35.1.3 The Authority shall, if there be Senior LendersXxxxxxx, send a copy of its notice of intention to issue a Termination Notice referred to in Clause 33.1.2 35.1.2 to inform the Lenders’ ' Representative and grant 15 (fifteen) days to the Lenders’ ' Representative, for making a representation on behalf of the Senior Lenders stating the intention to substitute the Concessionaire in accordance with the Substitution Agreement. In the event the Authority receives such representation on behalf of Senior Lenders, it shall, in its discretion, either withhold Termination for a period not exceeding 180 (one hundred and eighty) days from the date of such representation or exercise its right of Suspension, as the case may be, for enabling the Lenders' Representative to exercise the Senior Lenders’ ' right of substitution in accordance with the Substitution Agreement. :
i) Provided that the Lenders’ ' Representative may, instead of exercising the Senior Lenders’ ' right of substitution, procure that the default specified in the notice is cured within the aforesaid period of 180 (one hundred and eighty) days, and upon such curing thereof, the Authority shall withdraw its notice referred to above and restore all the rights of the Concessionaire. ;
ii) Provided further that upon written request from the Lenders’ ' Representative and the Concessionaire, the Authority shall extend the aforesaid period of 180 (one hundred and eighty) days by such further period not exceeding 90 (ninety) days, as the Authority may deem appropriate.
Appears in 1 contract
Samples: Concession Agreement
Termination for Concessionaire Default. 33.1.1 Save as otherwise provided in this Agreement, in the event that any of the defaults specified below shall have occurred, and the Concessionaire fails to cure the default within the Cure Period set forth below, or where no Cure Period is specified, then within a Cure Period of 60 (sixty) days, the Concessionaire shall be deemed to be in default of this Agreement (the "a “Concessionaire Default"”), unless the default has occurred solely as a result of any breach of this Agreement by the Authority / SSNNL / FED or due to Force Majeure. The defaults referred to herein shall include:
(a) the Construction Performance Security or the Performance Guarantee, Rolling Bank Guarantee (as the case may be, be applicable) has been encashed and appropriated in accordance with Clause 9.4 respectively 9.3 and the Concessionaire fails to replenish or provide fresh Construction Performance Security or the Performance Guarantee, as the case may be, Rolling Bank Guarantee within a Cure Period of 30 (thirty) days;
(b) subsequent to the replenishment or furnishing of fresh Construction Performance Security or the Performance Guarantee, Rolling Bank Guarantee (as the case may be, be applicable) in accordance with Clause 9.4 respectively9.4, the Concessionaire fails to cure, within a Cure Period of 90 (ninety) days, the Concessionaire Default for which whole or part of the Performance Security or the Performance Guarantee, as the case may be, was appropriated;.
(c) the Concessionaire does not achieve the latest outstanding Project Milestone due in accordance with the provisions of Schedule-G Appendix V and continues to be in default for 120 90 (one hundred and twentyninety) days;
(d) the Concessionaire abandons or manifests intention to abandon the construction or operation of the Project without the prior written consent of the AuthorityAuthority / SSNNL / FED;
(e) Project Completion Date does not occur within the period specified in Clause 12.4.3;
(f) the Punch List items have not been completed within the period set forth in Clause 14.4.1;
(g) the Concessionaire is in breach of the Maintenance Requirements or the Safety Requirements, as the case may be, or commits repeated default in conforming to the Key Performance Indicators;
(h) the Concessionaire has failed to make any payment to the Authority within the period specified in this Agreement;
(i) an Escrow Default has occurred and the Concessionaire fails to cure the default within a Cure Period of 15 (fifteen) days;
(j) upon occurrence of a Financial Default, the Lenders’ Representative has by notice required the Authority to undertake Suspension or Termination, as the case may be, in accordance with the Substitution Agreement and the Concessionaire fails to cure the default within the Cure Period specified hereinabove;
(k) a breach of any of the Project Agreements by the Concessionaire has caused a Material Adverse Effect;
(l) the Concessionaire creates any Encumbrance in breach of this Agreement;
(m) the Concessionaire repudiates this Agreement or otherwise takes any action or evidences or conveys an intention not to be bound by the Agreement;
(n) a Change in Ownership has occurred in breach of the provisions of Clause 5.3;
(o) there is a transfer, pursuant to law either of (i) the rights and/or obligations of the Concessionaire under any of the Project Agreements, or of (ii) all or part of the assets or undertaking of the Concessionaire, and such transfer causes a Material Adverse Effect;
(p) an execution levied on any of the assets of the Concessionaire has caused a Material Adverse Effect;
(q) the Concessionaire is adjudged bankrupt or insolvent, or if a trustee or receiver is appointed for the Concessionaire or for the whole or material part of its assets that has a material bearing on the Project;
(r) the Concessionaire has been, or is in the process of being liquidated, dissolved, wound-up, amalgamated or reconstituted in a manner that would cause, in the reasonable opinion of the Authority, a Material Adverse Effect;
(s) a resolution for winding up of the Concessionaire is passed, or any petition for winding up of the Concessionaire is admitted by a court of competent jurisdiction and a provisional liquidator or receiver is appointed and such order has not been set aside within 90 (ninety) days of the date thereof or the Concessionaire is ordered to be wound up by Court except for the purpose of amalgamation or reconstruction; provided that, as part of such amalgamation or reconstruction, the entire property, assets and undertaking of the Concessionaire are transferred to the amalgamated or reconstructed entity and that the amalgamated or reconstructed entity has unconditionally assumed the obligations of the Concessionaire under this Agreement and the Project Agreements; and provided that:
(i) the amalgamated or reconstructed entity has the capability and operating experience necessary for the performance of its obligations under this Agreement and the Project Agreements;
(ii) the amalgamated or reconstructed entity has the financial standing to perform its obligations under this Agreement and the Project Agreements and has a credit worthiness at least as good as that of the Concessionaire as at the Appointed Date; and
(iii) each of the Project Agreements remains in full force and effect;
(t) any representation or warranty of the Concessionaire herein contained which is, as of the date hereof, found to be materially false, incorrect or misleading or the Concessionaire is at any time hereafter found to be in breach thereof;
(u) the Concessionaire submits to the Authority any statement, notice or other Document, in written or electronic form, which has a material effect on the Authority's rights, obligations or interests and which is false in material particulars;
(v) the Concessionaire has failed to fulfil any obligation, for which failure Termination has been specified in this Agreement;
(w) the Concessionaire commits a default in complying with any other provision of this Agreement if such default causes a Material Adverse Effect on the Authority;
(x) the Concessionaire fails to pay the Upfront Premium and Annual Concession Fee in accordance with Article 25; or
(y) the COD of Commercial Complex is not achieved by 2555th day of the Appointed Date or by such other extended period as agreed upon by Authority.
33.1.2 Without prejudice to any other rights or remedies which the Authority may have under this Agreement, upon occurrence of a Concessionaire Default, the Authority shall be entitled to terminate this Agreement by issuing a Termination Notice to the Concessionaire; provided that before issuing the Termination Notice, the Authority shall by a notice inform the Concessionaire of its intention to issue such Termination Notice and grant 15 (fifteen) days to the Concessionaire to make a representation, and may after the expiry of such 15 (fifteen) days, whether or not it is in receipt of such representation, issue the Termination Notice, subject to the provisions of Clause 33.1.3.
33.1.3 The Authority shall, if there be Senior Lenders, send a copy of its notice of intention to issue a Termination Notice referred to in Clause 33.1.2 to inform the Lenders’ Representative and grant 15 (fifteen) days to the Lenders’ Representative, for making a representation on behalf of the Senior Lenders stating the intention to substitute the Concessionaire in accordance with the Substitution Agreement. In the event the Authority receives such representation on behalf of Senior Lenders, it shall, in its discretion, either withhold Termination for a period not exceeding 180 (one hundred and eighty) days from the date of such representation or exercise its right of Suspension, as the case may be, for enabling the Lenders' Representative to exercise the Senior Lenders’ right of substitution in accordance with the Substitution Agreement. Provided that the Lenders’ Representative may, instead of exercising the Senior Lenders’ right of substitution, procure that the default specified in the notice is cured within the aforesaid period of 180 (one hundred and eighty) days, and upon such curing thereof, the Authority shall withdraw its notice referred to above and restore all the rights of the Concessionaire. Provided further that upon written request from the Lenders’ Representative and the Concessionaire, the Authority shall extend the aforesaid period of 180 (one hundred and eighty) days by such further period not exceeding 90 (ninety) days, as the Authority may deem appropriate.
Appears in 1 contract
Samples: Concession Agreement
Termination for Concessionaire Default. 33.1.1 27.1.1. Save as otherwise provided in this Agreement, in the event that any of the defaults specified below shall have occurred, and the Concessionaire fails to cure the default within the Cure Period set forth below, or where no Cure Period is specified, then within a Cure Period of 60 30 (sixtythirty) days, the Concessionaire shall be deemed to be in default of this Agreement (the a "Concessionaire Default"), unless the default has occurred solely as a result of any breach of this Agreement by the Authority or due to Force Majeure. The defaults referred to herein shall include:
(a) a. the Performance Security or the Performance Guarantee/ Additional Bank Guarantee has been encashed, as the case may be, has been encashed and appropriated by the Authority in accordance with Clause 9.4 respectively 9.2 and the Concessionaire fails to replenish or provide fresh Performance Security or the Performance / Additional Bank Guarantee, as the case may be, within a Cure Period of 30 21 (thirtytwenty one) days;
(b) b. subsequent to the replenishment or furnishing of fresh Performance Security or the Performance / Additional Bank Guarantee, as the case may be, in accordance with Clause 9.4 respectively9.2, the Concessionaire fails to cure, within a Cure Period of 90 (ninety) days, cure the Concessionaire Default Default, for which whole or part of the Performance Security or the Performance / Additional Bank Guarantee, as the case may be, was appropriated;
, within a cure period of 45 (c) the Concessionaire does not achieve the latest outstanding Project Milestone due in accordance with the provisions of Schedule-G and continues to be in default for 120 (one hundred and twentyforty five) days;
(d) c. the Concessionaire abandons or manifests intention to abandon the construction or the operation of the Project without the prior written consent of the Authority;
(e) Project Completion Date d. COD does not occur within the period specified in Clause 12.4.312.3.2;
(f) e. the Punch List items have not been completed within the period set forth in Clause 14.4.113.4.1;
(g) f. the Concessionaire is in breach of the Maintenance Requirements or the Safety Requirements, as the case may be, or commits repeated default in conforming to the Key Performance Indicators;
(h) g. the Concessionaire has failed to make any payment to the Authority within the period Period specified in this Agreement;
(i) an Escrow Default has occurred and the Concessionaire fails to cure the default within a Cure Period of 15 (fifteen) days;
(j) h. upon occurrence of a Financial Default, the Lenders’ Representative has by notice required the Authority to undertake Suspension or Termination, as the case may be, in accordance with the Substitution Agreement and the Concessionaire fails to cure the default within the Cure Period specified hereinabove;
(k) i. a breach of any of the Project Agreements by the Concessionaire has caused a Material Adverse Effect;
(l) j. the Concessionaire creates any Encumbrance in breach of this Agreement;
(m) k. the Concessionaire repudiates this Agreement or otherwise takes any action or evidences or conveys an intention not to be bound by the Agreement;
(n) l. a Change in Ownership has occurred in breach of the provisions of Clause 5.3;
(o) there is a transfer, pursuant to law either of (i) the rights and/or obligations of the Concessionaire under any of the Project Agreements, or of (ii) all or part of the assets or undertaking of the Concessionaire, and such transfer causes a Material Adverse Effect;
(p) an execution levied on any of the assets of the Concessionaire has caused a Material Adverse Effect;
(q) the Concessionaire is adjudged bankrupt or insolvent, or if a trustee or receiver is appointed for the Concessionaire or for the whole or material part of its assets that has a material bearing on the Project;
(r) the Concessionaire has been, or is in the process of being liquidated, dissolved, wound-up, amalgamated or reconstituted in a manner that would cause, in the reasonable opinion of the Authority, a Material Adverse Effect;
(s) a resolution for winding up of the Concessionaire is passed, or any petition for winding up of the Concessionaire is admitted by a court of competent jurisdiction and a provisional liquidator or receiver is appointed and such order has not been set aside within 90 (ninety) days of the date thereof or the Concessionaire is ordered to be wound up by Court except for the purpose of amalgamation or reconstruction; provided that, as part of such amalgamation or reconstruction, the entire property, assets and undertaking of the Concessionaire are transferred to the amalgamated or reconstructed entity and that the amalgamated or reconstructed entity has unconditionally assumed the obligations of the Concessionaire under this Agreement and the Project Agreements; and provided that:
(i) the amalgamated or reconstructed entity has the capability and operating experience necessary for the performance of its obligations under this Agreement and the Project Agreements;
(ii) the amalgamated or reconstructed entity has the financial standing to perform its obligations under this Agreement and the Project Agreements and has a credit worthiness at least as good as that of the Concessionaire as at the Appointed Date; and
(iii) each of the Project Agreements remains in full force and effect;
(t) any representation or warranty of the Concessionaire herein contained which is, as of the date hereof, found to be materially false, incorrect or misleading or the Concessionaire is at any time hereafter found to be in breach thereof;
(u) the Concessionaire submits to the Authority any statement, notice or other Document, in written or electronic form, which has a material effect on the Authority's rights, obligations or interests and which is false in material particulars;
(v) the Concessionaire has failed to fulfil any obligation, for which failure Termination has been specified in this Agreement;
(w) the Concessionaire commits a default in complying with any other provision of this Agreement if such default causes a Material Adverse Effect on the Authority;
(x) the Concessionaire fails to pay the Upfront Premium and Annual Concession Fee in accordance with Article 25; or
(y) the COD of Commercial Complex is not achieved by 2555th day of the Appointed Date or by such other extended period as agreed upon by Authority.
33.1.2 Without prejudice to any other rights or remedies which the Authority may have under this Agreement, upon occurrence of a Concessionaire Default, the Authority shall be entitled to terminate this Agreement by issuing a Termination Notice to the Concessionaire; provided that before issuing the Termination Notice, the Authority shall by a notice inform the Concessionaire of its intention to issue such Termination Notice and grant 15 (fifteen) days to the Concessionaire to make a representation, and may after the expiry of such 15 (fifteen) days, whether or not it is in receipt of such representation, issue the Termination Notice, subject to the provisions of Clause 33.1.3.
33.1.3 The Authority shall, if there be Senior Lenders, send a copy of its notice of intention to issue a Termination Notice referred to in Clause 33.1.2 to inform the Lenders’ Representative and grant 15 (fifteen) days to the Lenders’ Representative, for making a representation on behalf of the Senior Lenders stating the intention to substitute the Concessionaire in accordance with the Substitution Agreement. In the event the Authority receives such representation on behalf of Senior Lenders, it shall, in its discretion, either withhold Termination for a period not exceeding 180 (one hundred and eighty) days from the date of such representation or exercise its right of Suspension, as the case may be, for enabling the Lenders' Representative to exercise the Senior Lenders’ right of substitution in accordance with the Substitution Agreement. Provided that the Lenders’ Representative may, instead of exercising the Senior Lenders’ right of substitution, procure that the default specified in the notice is cured within the aforesaid period of 180 (one hundred and eighty) days, and upon such curing thereof, the Authority shall withdraw its notice referred to above and restore all the rights of the Concessionaire. Provided further that upon written request from the Lenders’ Representative and the Concessionaire, the Authority shall extend the aforesaid period of 180 (one hundred and eighty) days by such further period not exceeding 90 (ninety) days, as the Authority may deem appropriate.
Appears in 1 contract
Samples: Concession Agreement
Termination for Concessionaire Default. 33.1.1 Save as otherwise provided in this Agreement, in the event that any of the defaults specified below shall have occurred, and the Concessionaire fails to cure the default within the Cure Period set forth below, or where no Cure Period is specified, then within a Cure Period of 60 (sixty) days, the Concessionaire shall be deemed to be in default of this Agreement (the "“Concessionaire Default"”), unless the default has occurred solely as a result of any breach of this Agreement by the Authority or due to Force Majeure. The defaults referred to herein shall include:
(a) : the Performance Security or the Performance Guarantee, as the case may be, has been encashed and appropriated in accordance with Clause 9.4 respectively 9.2 and the Concessionaire fails to replenish or provide fresh Performance Security or the Performance Guarantee, as the case may be, within a Cure Period of 30 (thirty) days;
(b) ; subsequent to the replenishment or furnishing of fresh Performance Security or the Performance Guarantee, as the case may be, in accordance with Clause 9.4 respectively9.2, the Concessionaire fails to cure, within a Cure Period of 90 (ninety) days, the Concessionaire Default for which whole or part of the Performance Security or the Performance Guarantee, as the case may be, was appropriated;
(c) ; the Concessionaire does not achieve the latest outstanding Project Milestone due in accordance with the provisions of Schedule-G and continues to be in default for 120 90 (one hundred and twentyninety) days;
(d) ; the Concessionaire abandons or manifests intention to abandon the construction or operation of the Project Highway without the prior written consent of the Authority;
(e) ; Project Completion Date does not occur within the period specified in Clause 12.4.3;
(f) ; the Punch List items have not been completed within the period set forth in Clause 14.4.1;
(g) ; the Concessionaire is in breach of the Maintenance Requirements or the Safety Requirements, as the case may be, or commits repeated default in conforming to the Key Performance Indicators;
(h) ; the Concessionaire has failed to make any payment to the Authority within the period specified in this Agreement;
(i) ; an Escrow Default has occurred and the Concessionaire fails to cure the default within a Cure Period of 15 (fifteen) days;
(j) ; upon occurrence of a Financial Default, the Lenders’ Representative has by notice required the Authority to undertake Suspension or Termination, as the case may be, in accordance with the Substitution Agreement and the Concessionaire fails to cure the default within the Cure Period specified in hereinabove;
(k) ; a breach of any of the Project Agreements by the Concessionaire has caused a Material Adverse Effect;
(l) ; the Concessionaire creates any Encumbrance in breach of this Agreement;
(m) ; the Concessionaire repudiates this Agreement or otherwise takes any action or evidences or conveys an intention not to be bound by the Agreement;
(n) ; a Change in Ownership has occurred in breach of the provisions of Clause 5.3;
(o) ; there is a transfer, pursuant to law either of (i) the rights and/or obligations of the Concessionaire under any of the Project Agreements, or of (ii) all or part of the assets or undertaking of the Concessionaire, and such transfer causes a Material Adverse Effect;
(p) ; an execution levied on any of the assets of the Concessionaire has caused a Material Adverse Effect;
(q) ; the Concessionaire is adjudged bankrupt or insolvent, or if a trustee or receiver is appointed for the Concessionaire or for the whole or material part of its assets that has a material bearing on the Project;
(r) ; the Concessionaire has been, or is in the process of being liquidated, dissolved, wound-up, amalgamated or reconstituted in a manner that would cause, in the reasonable opinion of the Authority, a Material Adverse Effect;
(s) ; a resolution for winding up of the Concessionaire is passed, or any petition for winding up of the Concessionaire is admitted by a court of competent jurisdiction and a provisional liquidator or receiver is appointed and such order has not been set aside within 90 (ninety) days of the date thereof or the Concessionaire is ordered to be wound up by Court except for the purpose of amalgamation or reconstruction; provided that, as part of such amalgamation or reconstruction, the entire property, assets and undertaking of the Concessionaire are transferred to the amalgamated or reconstructed entity and that the amalgamated or reconstructed entity has unconditionally assumed the obligations of the Concessionaire under this Agreement and the Project Agreements; and provided that:
(i) : the amalgamated or reconstructed entity has the capability and operating experience necessary for the performance of its obligations under this Agreement and the Project Agreements;
(ii) ; the amalgamated or reconstructed entity has the financial standing to perform its obligations under this Agreement and the Project Agreements and has a credit worthiness at least as good as that of the Concessionaire as at the Appointed Date; and
(iii) and each of the Project Agreements remains in full force and effect;
(t) ; any representation or warranty of the Concessionaire herein contained which is, as of the date hereof, found to be materially false, incorrect or misleading or the Concessionaire is at any time hereafter found to be in breach thereof;
(u) ; the Concessionaire submits to the Authority any statement, notice or other Documentdocument, in written or electronic form, which has a material effect on the Authority's ’s rights, obligations or interests and which is false in material particulars;
(v) ; the Concessionaire has failed to fulfil any obligation, for which failure Termination has been specified in this Agreement;
(w) ; or the Concessionaire commits a default in complying with any other provision of this Agreement if such a default causes a Material Adverse Effect on the Authority;
(x) the Concessionaire fails to pay the Upfront Premium and Annual Concession Fee in accordance with Article 25; or
(y) the COD of Commercial Complex is not achieved by 2555th day of the Appointed Date or by such other extended period as agreed upon by Authority.
33.1.2 . Without prejudice to any other rights or remedies which the Authority may have under this Agreement, upon occurrence of a Concessionaire Default, the Authority shall be entitled to terminate this Agreement by issuing a Termination Notice to the Concessionaire; provided that before issuing the Termination Notice, the Authority shall by a notice inform the Concessionaire of its intention to issue such Termination Notice and grant 15 (fifteen) days to the Concessionaire to make a representation, and may after the expiry of such 15 (fifteen) days, whether or not it is in receipt of such representation, issue the Termination Notice, subject to the provisions of Clause 33.1.3.
33.1.3 clause 37.1.3. The Authority shall, if there be Senior Lenders, send a copy of its notice of intention to issue a Termination Notice referred to in Clause 33.1.2 37.1.2 to inform the Lenders’ Representative and grant 15 30 (fifteenthirty) days to the Lenders’ Representative, for making a representation on behalf of the Senior Lenders stating the intention to substitute the Concessionaire in accordance with the Substitution Agreement. In the event the Authority receives such representation on behalf of Senior Lenders, it shall, in its discretion, either withhold Termination for a period not exceeding 180 (one hundred and eighty) days from the date of such representation or exercise its right of Suspension, as the case may be, for enabling the Lenders' ’ Representative to exercise the Senior Lenders’ right of substitution in accordance with the Substitution Agreement. : Provided that the Lenders’ Representative may, instead of exercising the Senior Lenders’ right of substitution, procure that the default specified in the notice is cured within the aforesaid period of 180 (one hundred and eighty) days, and upon such curing thereof, the Authority shall withdraw its notice referred to above and restore all the rights of the Concessionaire. : Provided further that upon written request from the Lenders’ Representative and the Concessionaire, the Authority shall extend the aforesaid period of 180 (one hundred and eighty) days by such further period not exceeding 90 (ninety) days, as the Authority may deem appropriate. Termination for Authority Default In the event that any of the defaults specified below shall have occurred, and the Authority fails to cure such default within a Cure Period of 90 (ninety) days or such longer period as has been expressly provided in this Agreement, the Authority shall be deemed to be in default of this Agreement (the “Authority Default”) unless the default has occurred as a result of any breach of this Agreement by the Concessionaire or due to Force Majeure. The defaults referred to herein shall include: The Authority commits a material default in complying with any of the provisions of this Agreement and such default has a Material Adverse Effect on the Concessionaire; the Authority has failed to make any payment to the Concessionaire within the period specified in this Agreement; the Authority repudiates this Agreement or otherwise takes any action that amounts to or manifests an irrevocable intention not to be bound by this Agreement; or the State commits a material default in complying with the provisions of the State Support Agreement if such default has a Material Adverse Effect on the Concessionaire and the breach continues for a period of 90 (ninety) days from the date of notice given in this behalf by the Concessionaire to the Authority. Without prejudice to any other right or remedy which the Concessionaire may have under this Agreement, upon occurrence of an Authority Default, the Concessionaire shall, subject to the provisions of the Substitution Agreement, be entitled to terminate this Agreement by issuing a Termination Notice to the Authority; provided that before issuing the Termination Notice, the Concessionaire shall by a notice inform the Authority of its intention to issue the Termination Notice and grant 30 (thirty) days to the Authority to make a representation, and may after the expiry of such 30 (thirty) days, whether or not it is in receipt of such representation, issue the Termination Notice. Termination Payment Upon Termination on account of a Concessionaire Default during the Operation Period, the Authority shall pay to the Concessionaire, by way of Termination Payment, an amount equal to 90% (ninety per cent) of the Debt Due less Insurance Cover; provided that if any insurance claims forming part of the Insurance Cover are not admitted and paid, then 80% (eighty per cent) of such unpaid claims shall be included in the computation of Debt Due. For the avoidance of doubt, the Concessionaire hereby acknowledges that no Termination Payment shall be due or payable on account of a Concessionaire Default occurring prior to Project Completion Date. Upon Termination on account of an Authority Default, the Authority shall pay to the Concessionaire, by way of Termination Payment, an amount equal to: Debt Due; and 150% (one hundred and fifty per cent) of the Adjusted Equity. Provided that the Termination Payment shall not be less than an amount equal to the product of 6 (six) and the average monthly Fee actually realised 12 (twelve) months prior to the Transfer Date. Termination Payment shall become due and payable to the Concessionaire within 30 (thirty) days of a demand being made by the Concessionaire to the Authority with the necessary particulars, and in the event of any delay, the Authority shall pay interest at a rate equal to 3% (three per cent) above the Bank Rate on the amount of Termination Payment remaining unpaid; provided that such delay shall not exceed 90 (ninety) days. For the avoidance of doubt, it is expressly agreed that Termination Payment shall constitute full discharge by the Authority of its payment obligations in respect thereof hereunder. The Concessionaire expressly agrees that Termination Payment under this Article 37 shall constitute a full and final settlement of all claims of the Concessionaire on account of Termination of this Agreement for any reason whatsoever and that it shall not have any further right or claim under any law, treaty, convention, contract or otherwise. Other rights and obligations of the Authority Upon Termination for any reason whatsoever, the Authority shall: be deemed to have taken possession and control of the Project Highway forthwith; take possession and control of all materials, stores, implements, construction plants and equipment on or about the Site; be entitled to restrain the Concessionaire and any person claiming through or under the Concessionaire from entering upon the Site or any part of the Project; require the Concessionaire to comply with the Divestment Requirements set forth in Clause 38.1; and succeed upon election by the Authority, without the necessity of any further action by the Concessionaire, to the interests of the Concessionaire under such of the Project Agreements as the Authority may in its discretion deem appropriate, and shall upon such election be liable to the Contractors only for compensation accruing and becoming due and payable to them under the terms of their respective Project Agreements from and after the date the Authority elects to succeed to the interests of the Concessionaire. For the avoidance of doubt, the Concessionaire acknowledges and agrees that all sums claimed by such Contractors as being due and owing for works and services performed or accruing on account of any act, omission or event prior to such date shall constitute debt between the Concessionaire and such Contractors, and the Authority shall not in any manner be liable for such sums. It is further agreed that in the event the Authority elects to cure any outstanding defaults under such Project Agreements, the amount expended by the Authority for this purpose shall be deducted from the Termination Payment. Survival of rights Notwithstanding anything to the contrary contained in this Agreement, any Termination pursuant to the provisions of this Agreement shall be without prejudice to the accrued rights of either Party including its right to claim and recover money damages, insurance proceeds, security deposits, and other rights and remedies, which it may have in law or contract. All rights and obligations of either Party under this Agreement, including Termination Payments and Divestment Requirements, shall survive the Termination to the extent such survival is necessary for giving effect to such rights and obligations.
Appears in 1 contract
Samples: Model Concession Agreement
Termination for Concessionaire Default. 33.1.1 25.1.1. Save as otherwise provided in this Agreement, in the event that any of the defaults specified below shall have occurred, and the Concessionaire fails to cure the default within the Cure Period set forth below, or where no Cure Period is specified, then within a Cure Period of 60 30 (sixtythirty) days, the Concessionaire shall be deemed to be in default of this Agreement (the a "Concessionaire Default"), unless the default has occurred solely as a result of any breach of this Agreement by the Authority or due to Force Majeure. The defaults referred to herein shall include:
(a) the Performance Security or the Performance Guarantee, as the case may be, has been encashed and appropriated by the Authority in accordance with Clause 9.4 respectively 9.2 and the Concessionaire fails to replenish or provide fresh Performance Security or the Performance Guarantee, as the case may be, within a Cure Period of 30 (thirty) days;
(b) subsequent to the replenishment or furnishing of fresh Performance Security or the Performance Guarantee, as the case may be, in accordance with Clause 9.4 respectively, the Concessionaire fails to cure, within a Cure Period of 90 (ninety) days, the Concessionaire Default for which whole or part of the Performance Security or the Performance Guarantee, as the case may be, was appropriated;
(c) the Concessionaire does not achieve the latest outstanding Project Milestone due in accordance with the provisions of Schedule-G and continues to be in default for 120 (one hundred and twenty) days;
(d) the Concessionaire abandons or manifests intention to abandon the construction or operation of the Project without the prior written consent of the Authority;Authority for a continuous period of 30 days and such default is not rectified within thirty (30) days from the receipt of first notice from the Authority in this regard, or
(ec) the Concessionaire, for reasons solely attributable to an act or omission of itself, abandons or relinquishes the services to the Users to such an extent that there is significant widespread danger to the health of the public in the Service Area and in such a manner as to reasonably justify the Authority in holding that the Concessionaire's conduct is inconsistent with its intention or ability to carry out the terms and conditions of the Contract.
d) Project Completion Date does not occur within the period specified in Clause 12.4.3Clause11.3.3;
(f) the Punch List items have not been completed within the period set forth in Clause 14.4.1;
(ge) the Concessionaire is in breach of the Maintenance O&M Requirements or the Safety Requirements, as the case may be, or commits repeated default in conforming to the Key and Performance IndicatorsBenchmarks;
(hf) the Concessionaire has failed to make any payment to the Authority which is due and payable within the period specified in this Agreement;
(i) an Escrow Default has occurred and the Concessionaire fails to cure the default within a Cure Period of 15 (fifteen) days;
(j) upon occurrence of a Financial Default, the Lenders’ Representative has by notice required the Authority to undertake Suspension or Termination, as the case may be, in accordance with the Substitution Agreement and the Concessionaire fails to cure the default within the Cure Period specified hereinabove;
(k) a breach of any of the Project Agreements by the Concessionaire has caused a Material Adverse Effect;
(lg) the Concessionaire creates any Encumbrance in breach of this Agreement;
(m) the Concessionaire repudiates this Agreement or otherwise takes any action or evidences or conveys an intention not to be bound by the Agreement;
(nh) a Change in Ownership has occurred in breach of the provisions of Clause 5.3;
(o) there is a transfer, pursuant to law either of (i) the rights and/or obligations of the Concessionaire under any of the Project Agreements, or of (ii) all or part of the assets or undertaking of the Concessionaire, and such transfer causes a Material Adverse Effect;
(p) an execution levied on any of the assets of the Concessionaire has caused a Material Adverse Effect;
(q) the Concessionaire is adjudged bankrupt or insolvent, or if a trustee or receiver is appointed for the Concessionaire or for the whole or material part of its assets that has a material bearing on the Project;
(r) the Concessionaire has been, or is in the process of being liquidated, dissolved, wound-up, amalgamated or reconstituted in a manner that would cause, in the reasonable opinion of the Authority, a Material Adverse Effect;
(s) a resolution for winding up of the Concessionaire is passed, or any petition for winding up of the Concessionaire is admitted by a court of competent jurisdiction and a provisional liquidator or receiver is appointed and such order has not been set aside within 90 (ninety) days of the date thereof or the Concessionaire is ordered to be wound up by Court except for the purpose of amalgamation or reconstruction; provided that, as part of such amalgamation or reconstruction, the entire property, assets and undertaking of the Concessionaire are transferred to the amalgamated or reconstructed entity and that the amalgamated or reconstructed entity has unconditionally assumed the obligations of the Concessionaire under this Agreement and the Project Agreements; and provided that:
(i) the amalgamated or reconstructed entity has the capability and operating experience necessary for the performance of its obligations under this Agreement and the Project Agreements;
(ii) the amalgamated or reconstructed entity has the financial standing to perform its obligations under this Agreement and the Project Agreements and has a credit worthiness at least as good as that of the Concessionaire as at the Appointed Date; and
(iii) each of the Project Agreements remains in full force and effect;
(t) any representation or warranty of the Concessionaire herein contained which is, as of the date hereof, found to be materially false, incorrect or misleading or the Concessionaire is at any time hereafter found to be in breach thereof;
(u) the Concessionaire submits to the Authority any statement, notice or other Document, in written or electronic form, which has a material effect on the Authority's rights, obligations or interests and which is false in material particulars;
(v) the Concessionaire has failed to fulfil any obligation, for which failure Termination has been specified in this Agreement;; or
(wj) the Concessionaire commits a default in complying with any other provision of this Agreement if such default causes a Material Adverse Effect on the Authority;
(x) the Concessionaire fails to pay the Upfront Premium and Annual Concession Fee in accordance with Article 25; or
(y) the COD of Commercial Complex is not achieved by 2555th day of the Appointed Date or by such other extended period as agreed upon by Authority.
33.1.2 25.1.2. Without prejudice to any other rights or remedies which the Authority may have under this Agreement, upon occurrence of a Concessionaire Default, the Authority shall be entitled to terminate this Agreement by issuing a Termination Notice to the Concessionaire; provided that before issuing the Termination Notice, the Authority shall by a notice inform the Concessionaire of its intention to issue such Termination Notice and grant 15 (fifteen) days to the Concessionaire to make a representation, and may after the expiry of such 15 (fifteen) days, whether or not it is in receipt of such representation, issue the Termination Notice, subject to the provisions of Clause 33.1.3clause.
33.1.3 The Authority shall, if there be Senior Lenders, send a copy of its notice of intention to issue a Termination Notice referred to in Clause 33.1.2 to inform the Lenders’ Representative and grant 15 (fifteen) days to the Lenders’ Representative, for making a representation on behalf of the Senior Lenders stating the intention to substitute the Concessionaire in accordance with the Substitution Agreement. In the event the Authority receives such representation on behalf of Senior Lenders, it shall, in its discretion, either withhold Termination for a period not exceeding 180 (one hundred and eighty) days from the date of such representation or exercise its right of Suspension, as the case may be, for enabling the Lenders' Representative to exercise the Senior Lenders’ right of substitution in accordance with the Substitution Agreement. Provided that the Lenders’ Representative may, instead of exercising the Senior Lenders’ right of substitution, procure that the default specified in the notice is cured within the aforesaid period of 180 (one hundred and eighty) days, and upon such curing thereof, the Authority shall withdraw its notice referred to above and restore all the rights of the Concessionaire. Provided further that upon written request from the Lenders’ Representative and the Concessionaire, the Authority shall extend the aforesaid period of 180 (one hundred and eighty) days by such further period not exceeding 90 (ninety) days, as the Authority may deem appropriate.
Appears in 1 contract
Samples: Concession Agreement
Termination for Concessionaire Default. 33.1.1 25.1.1 Save as otherwise provided in this Agreement, in the event that any of the defaults specified below shall have occurred, and the Concessionaire fails to cure the default within the Cure Period set forth below, or where no Cure Period is specified, then within a Cure Period of 60 90 (sixtyninety) days, the Concessionaire shall be deemed to be ‘in default of this Agreement (the "Concessionaire Default"), unless the default has occurred solely as a result of any breach of this Agreement by the Authority or due to Force Majeure. The defaults referred to herein shall include:
(a) the Performance Security or the Performance Guarantee, as the case may be, has been encashed and appropriated in accordance with Clause 9.4 respectively ARTICLE 9 and the Concessionaire fails to replenish or provide fresh Performance Security or the Performance Guarantee, as the case may be, within a Cure Period of 30 (thirty) days;
(b) subsequent to the replenishment or furnishing of fresh Performance Security or the Performance Guarantee, as the case may be, in accordance with Clause 9.4 respectively, the Concessionaire fails to cure, within a Cure Period of 90 (ninety) days, the Concessionaire Default for which whole or part of the Performance Security or the Performance Guarantee, as the case may be, was appropriated;
(c) the Concessionaire does not achieve the latest outstanding Project Milestone due in accordance with the provisions of Schedule-G and continues to be in default for 120 (one hundred and twenty) days;
(d) the Concessionaire abandons or manifests intention to abandon the construction or operation of the Project without the prior written consent of the Authority;
(e) Project Completion Date does not occur within the period specified in Clause 12.4.3;
(f) the Punch List items have not been completed within the period set forth in Clause 14.4.1;
(gc) the Concessionaire is in breach fails to undertake or complete the construction of the Maintenance Requirements or the Safety Requirements, as the case may be, or commits repeated default Mandatory Development Obligations in conforming to the Key Performance Indicatorsaccordance with ARTICLE 12;
(hd) the Concessionaire fails to achieve COD in accordance with ARTICLE 15;
e) the Concessionaire has failed to make any payment to the Authority within the period specified in this Agreement;
(if) an Escrow Default has occurred and the Concessionaire fails to cure the default within a Cure Period of 15 (fifteen) days;
(j) upon occurrence of a Financial Default, the Lenders’ Representative has by notice required the Authority to undertake Suspension or Termination, as the case may be, in accordance with the Substitution Agreement and the Concessionaire fails to cure the default within the Cure Period specified hereinabove;
(kg) a breach of any of the Project Agreements by the Concessionaire has caused a Material Adverse Effect;
(lh) the Concessionaire creates any Encumbrance in breach of this Agreement;
(mi) the Concessionaire repudiates this Agreement or otherwise takes any action or evidences or conveys an intention not to be bound by the Agreement;
(nj) a Change in Ownership has occurred in breach of the provisions of Clause 5.3Article 5.4;
(ok) If the Concessionaire is declared as a wilful defaulter by any of the Scheduled Banks in India;
l) If the Concessionaire is declared unfit/ineligible to continue as a “going concern” or undertake the responsibilities as per this Agreement under an Indian Law;
m) there is a transfer, pursuant to law either of (i) the rights and/or obligations of the Concessionaire under any of the Project Agreements, or of (ii) all or part of the assets or undertaking of the Concessionaire, and such transfer causes a Material Adverse Effect;
(p) an execution levied on any of the assets of the Concessionaire has caused a Material Adverse Effect;
(qn) the Concessionaire is adjudged bankrupt or insolvent, or if a trustee or receiver is appointed for the Concessionaire or for the whole or material part of its assets that has a material bearing on the Project;
(ro) the Concessionaire has been, or is in the process of being liquidated, dissolved, wound-wound- up, amalgamated or reconstituted in a manner that would cause, in the reasonable opinion of the Authority, a Material Adverse Effect;
(sp) a resolution for winding up of the Concessionaire is passed, or any petition for winding up of the Concessionaire is admitted by a court of competent jurisdiction and a provisional liquidator or receiver is appointed and such order has not been set aside within 90 (ninety) days of the date thereof or the Concessionaire is ordered to be wound up by Court except for the purpose of amalgamation or reconstruction; provided that, as part of such amalgamation or reconstruction, the entire property, assets and undertaking of the Concessionaire are transferred to the amalgamated or reconstructed entity and that the amalgamated or reconstructed entity has unconditionally assumed the obligations of the Concessionaire under this Agreement and the Project Agreements; and provided that:
(i) a. the amalgamated or reconstructed entity has the capability and operating experience necessary for the performance of its obligations under this Agreement and the Project Agreements;
(ii) b. the amalgamated or reconstructed entity has the financial standing to perform its obligations under this Agreement and the Project Agreements and has a credit worthiness at least as good as that of the Concessionaire as at the Appointed DateCOD; and
(iii) c. each of the Project Agreements remains in full force and effect;
(tq) any representation or warranty of the Concessionaire herein contained which is, as of the date hereof, found to be materially false, incorrect or misleading or the Concessionaire is at any time hereafter found to be in breach thereof;
(ur) the Concessionaire submits to the Authority any statement, notice or other Documentdocument, in written or electronic form, which has a material effect on the Authority's rights, obligations or interests and which is false in material particulars;
(vs) the Concessionaire has failed to fulfil any obligation, for which failure failure, Termination has been specified in this Agreement;; or
(wt) the Concessionaire commits a default in complying with any other provision of this Agreement if such default causes cause a Material Adverse Effect on the Authority;
(x) the Concessionaire fails to pay the Upfront Premium and Annual Concession Fee in accordance with Article 25; or
(y) the COD of Commercial Complex is not achieved by 2555th day of the Appointed Date or by such other extended period as agreed upon by Authority.
33.1.2 u) The Concessionaire novates and /or assigns the agreement to any third party without any prior approval from the Concessioning Authority
25.1.2 Without prejudice to any other rights or remedies which the Authority may have under this Agreement, upon occurrence of a Concessionaire Default, the Authority shall be entitled to terminate this Agreement by issuing a Termination Notice to the Concessionaire; provided that before issuing the Termination Notice, the Authority shall by a notice inform the Concessionaire of its intention to issue such Termination Notice and grant 15 30 (fifteenthirty) days to the Concessionaire to make a representation, and may after the expiry of such 15 30 (fifteenthirty) days, whether or not it is in receipt of such representation, issue the Termination Notice, subject to the provisions of Clause 33.1.3.
33.1.3 25.1.3 The Authority shall, if there be Senior Lenders, send a copy of its notice of intention to issue a Termination Notice referred to in Clause 33.1.2 Article 25.1.2 to inform the Lenders’ ' Representative and grant 15 (fifteen) days to the Lenders’ ' Representative, for making a representation on behalf of the Senior Lenders stating the intention to substitute the Concessionaire in accordance with the Substitution Agreement. In the event the Authority receives such representation on behalf of Senior Lenders, it shall, in its discretion, either withhold Termination for a period not exceeding 180 (one hundred and eighty) days from the date of such representation or exercise its right of Suspension, as the case may be, for enabling the Lenders' Representative to exercise the Senior Lenders’ ' right of substitution in accordance with the Substitution Agreement. : Provided that the Lenders’ ' Representative may, instead of exercising the Senior Lenders’ ' right of substitution, procure that the default specified in the notice is cured within the aforesaid period of 180 (one hundred and eighty) days, and upon such curing thereof, the Authority shall withdraw its notice referred to above and restore all the rights of the Concessionaire. : Provided further that upon written request from the Lenders’ ' Representative and the Concessionaire, the Authority shall extend the aforesaid period of 180 (one hundred and eighty) days by such further period not exceeding 90 (ninety) days, as the Authority may deem appropriate.
Appears in 1 contract
Samples: Concession Agreement
Termination for Concessionaire Default. 33.1.1
25.1.1 Save as otherwise provided in this Agreement, in the event that any of the defaults specified below shall have occurred, and the Concessionaire fails to cure the default within the Cure Period set forth below, or where no Cure Period is specified, then within a Cure Period of 60 (sixty) days, the Concessionaire shall be deemed to be in default of this Agreement (the "Concessionaire Default"), unless the default has occurred solely as a result of any breach of this Agreement by the Authority or due to Force Majeure. The defaults referred to herein shall include:
(a) the Performance Security or the Performance Guarantee, as the case may be, has been encashed and appropriated in accordance with Clause 9.4 respectively 9.2 and the Concessionaire fails to replenish or provide fresh Performance Security or the Performance Guarantee, as the case may be, within a Cure Period of 30 period 15 (thirtyfifteen) days;
(b) subsequent to the replenishment or furnishing of fresh Performance Security or the Performance Guarantee, as the case may be, in accordance with Clause 9.4 respectively9.2, the Concessionaire fails to cure, within a Cure Period of 90 60 (ninetysixty) days, the Concessionaire Default for which whole or part of the Performance Security or the Performance Guarantee, as the case may be, was appropriated;
(c) the Concessionaire does not achieve the latest outstanding Project Milestone due in accordance with the provisions of Schedule-G and continues to be in default for 120 (one hundred and twenty) days;
(d) the Concessionaire abandons or manifests intention to abandon the construction or operation of the Project without the prior written consent of the Authority;
(ed) the Concessionaire fails to undertake or complete the refurbishment work of the Project Completion Date does not occur within the period specified in accordance with Clause 12.4.311.1;
(f) the Punch List items have not been completed within the period set forth in Clause 14.4.1;
(ge) the Concessionaire is in breach of the Maintenance Requirements or the Safety Requirements, as the case may be, or commits repeated default in conforming to the Key Performance Indicators;
(hf) the Concessionaire has failed to make any payment to the Authority within the period specified in this Agreement;
(i) an Escrow Default has occurred and the Concessionaire fails to cure the default within a Cure Period of 15 (fifteen) days;
(j) upon occurrence of a Financial Default, the Lenders’ Representative has by notice required the Authority to undertake Suspension or Termination, as the case may be, in accordance with the Substitution Agreement and the Concessionaire fails to cure the default within the Cure Period specified hereinabove;
(kg) a breach of any of the Project Agreements by the Concessionaire has caused a Material Adverse Effect;
(lh) the Concessionaire creates any Encumbrance in breach of this Agreement;
(mi) the Concessionaire repudiates this Agreement or otherwise takes any action or evidences or conveys an intention not to be bound by the Agreement;
(nj) a Change in Ownership has occurred in breach of the provisions of Clause 5.3;
(ok) there is a transfer, pursuant to law either of (i) the rights and/or obligations of the Concessionaire under any of the Project Agreements, or of (ii) all or part of the assets or undertaking of the Concessionaire, and such transfer causes a Material Adverse Effect;
(pl) an execution levied on any of the assets of the Concessionaire has caused a Material Adverse Effect;
(qm) the Concessionaire is adjudged bankrupt or insolvent, or if a trustee or receiver is appointed for the Concessionaire or for the whole or material part of its assets that has a material bearing on the Project;
(rn) the Concessionaire has been, or is in the process of being liquidated, dissolved, wound-up, amalgamated or reconstituted in a manner that would cause, in the reasonable opinion of the Authority, a Material Adverse Effect;
(so) a resolution for winding up of the Concessionaire is passed, or any petition for winding up of the Concessionaire is admitted by a court of competent jurisdiction and a provisional liquidator or receiver is appointed and such order has not been set aside within 90 (ninety) days of the date thereof or the Concessionaire is ordered to be wound up by Court except for the purpose of amalgamation or reconstruction; provided that, as part of such amalgamation or reconstruction, the entire property, assets and undertaking of the Concessionaire are transferred to the amalgamated or reconstructed entity and that the amalgamated or reconstructed entity has unconditionally assumed the obligations of the Concessionaire under this Agreement and the Project Agreements; and provided that:
(i) i. the amalgamated or reconstructed entity has the capability and operating experience necessary for the performance of its obligations under this Agreement and the Project Agreements;
(ii) . the amalgamated or reconstructed entity has the financial standing to perform its obligations under this Agreement and the Project Agreements and has a credit worthiness at least as good as that of the Concessionaire as at the Appointed DateCOD; and
(iii) . each of the Project Agreements remains in full force and effect.
(p) The Concessionaire and / or its associates engages in transactions / auctions / trade / procurement / buying-selling / supply for self thus creating a conflict of interest with farmers in discovery of price and risk management;
(tq) any representation or warranty of the Concessionaire herein contained which is, as of the date hereof, found to be materially false, incorrect or misleading or the Concessionaire is at any time hereafter found to be in breach thereof;
(ur) the Concessionaire submits to the Authority any statement, notice or other Documentdocument, in written or electronic form, which has a material effect on the Authority's rights, obligations or interests and which is false in material particulars;
(vs) the Concessionaire has failed to fulfil any obligation, for which failure Termination has been specified in this Agreement;
(wt) the Concessionaire commits a default in complying with any other provision of this Agreement if such default causes a Material Adverse Effect on the Authority;
(x) the Concessionaire fails to pay the Upfront Premium and Annual Concession Fee in accordance with Article 25; or
(y) the COD of Commercial Complex is not achieved by 2555th day of the Appointed Date or by such other extended period as agreed upon by Authority.
33.1.2 25.1.2 Without prejudice to any other rights or remedies which the Authority may have under this Agreement, upon occurrence of a Concessionaire Default, the Authority shall be entitled to terminate this Agreement by issuing a Termination Notice to the Concessionaire; provided that before issuing the Termination Notice, the Authority shall by a notice inform the Concessionaire of its intention to issue such Termination Notice and grant 15 (fifteen) days to the Concessionaire to make a representation, and may after the expiry of such 15 (fifteen) days, whether or not it is in receipt of such representation, issue the Termination Notice, subject to the provisions of Clause 33.1.3.
33.1.3 25.1.3 The Authority shall, if there be Senior Lenders, send a copy of its notice of intention to issue a Termination Notice referred to in Clause 33.1.2 25.1.2 to inform the Lenders’ Representative and grant 15 (fifteen) days to the Lenders’ Representative, for making a representation on behalf of the Senior Lenders stating the intention to substitute the Concessionaire in accordance with the Substitution Agreement. In the event the Authority receives such representation on behalf of Senior Lenders, it shall, in its discretion, either withhold Termination for a period not exceeding 180 (one hundred and eighty) days from the date of such representation or exercise its right of Suspension, as the case may be, for enabling the Lenders' ’ Representative to exercise the Senior Lenders’ ' right of substitution in accordance with the Substitution Agreement. : Provided that the Lenders’ Representative may, instead of exercising the Senior Lenders’ right of substitution, procure that the default specified in the notice is cured within the aforesaid period of 180 (one hundred and eighty) days, and upon such curing thereof, the Authority shall withdraw its notice referred to above and restore all the rights of the Concessionaire. Provided further that upon written request from the Lenders’ Representative and the Concessionaire, the Authority shall extend the aforesaid period of 180 (one hundred and eighty) days by such further period not exceeding 90 (ninety) days, as the Authority may deem appropriate.
Appears in 1 contract
Samples: Concession Agreement
Termination for Concessionaire Default. 33.1.1 Save as otherwise provided in this Agreement, in the event that any of the defaults specified below shall have occurred, and the Concessionaire fails to cure the default within the Cure Period set forth below, or where no Cure Period is specified, then within a Cure Period of 60 (sixty) days, the Concessionaire shall be deemed to be in default of this Agreement (the "Concessionaire Default"), unless the default has occurred solely as a result of any breach of this Agreement by the Authority or due to Force Majeure. The defaults referred to herein shall include:
(a) the Performance Security or the Performance Guarantee, as the case may be, has been encashed and appropriated in accordance with Clause 9.4 respectively and the Concessionaire fails to replenish or provide fresh Performance Security or the Performance Guarantee, as the case may be, within a Cure Period of 30 (thirty) days;
(b) subsequent to the replenishment or furnishing of fresh Performance Security or the Performance Guarantee, as the case may be, in accordance with Clause 9.4 respectively, the Concessionaire fails to cure, within a Cure Period of 90 (ninety) days, the Concessionaire Default for which whole or part of the Performance Security or the Performance Guarantee, as the case may be, was appropriated;
(c) the Concessionaire does not achieve the latest outstanding Project Milestone due in accordance with the provisions of Schedule-G and continues to be in default for 120 (one hundred and twenty) days;
(d) the Concessionaire abandons or manifests intention to abandon the construction or operation of the Project without the prior written consent of the Authority;
(e) Project Completion Date does not occur within the period specified in Clause 12.4.3;
(f) the Punch List items have not been completed within the period set forth in Clause 14.4.1;
(g) the Concessionaire is in breach of the Maintenance Requirements or the Safety Requirements, as the case may be, or commits repeated default in conforming to the Key Performance Indicators;
(h) the Concessionaire has failed to make any payment to the Authority within the period specified in this Agreement;
(i) an Escrow Default has occurred and the Concessionaire fails to cure the default within a Cure Period of 15 (fifteen) days;
(j) upon occurrence of a Financial Default, the Lenders’ Representative has by notice required the Authority to undertake Suspension or Termination, as the case may be, in accordance with the Substitution Agreement and the Concessionaire fails to cure the default within the Cure Period specified hereinabove;
(k) a breach of any of the Project Agreements by the Concessionaire has caused a Material Adverse Effect;
(l) the Concessionaire creates any Encumbrance in breach of this Agreement;
(m) the Concessionaire repudiates this Agreement or otherwise takes any action or evidences or conveys an intention not to be bound by the Agreement;
(n) a Change in Ownership has occurred in breach of the provisions of Clause 5.3;
(o) there is a transfer, pursuant to law either of (i) the rights and/or obligations of the Concessionaire under any of the Project Agreements, or of (ii) all or part of the assets or undertaking of the Concessionaire, and such transfer causes a Material Adverse Effect;
(p) an execution levied on any of the assets of the Concessionaire has caused a Material Adverse Effect;
(q) the Concessionaire is adjudged bankrupt or insolvent, or if a trustee or receiver is appointed for the Concessionaire or for the whole or material part of its assets that has a material bearing on the Project;
(r) the Concessionaire has been, or is in the process of being liquidated, dissolved, wound-up, amalgamated or reconstituted in a manner that would cause, in the reasonable opinion of the Authority, a Material Adverse Effect;
(s) a resolution for winding up of the Concessionaire is passed, or any petition for winding up of the Concessionaire is admitted by a court of competent jurisdiction and a provisional liquidator or receiver is appointed and such order has not been set aside within 90 (ninety) days of the date thereof or the Concessionaire is ordered to be wound up by Court except for the purpose of amalgamation or reconstruction; provided that, as part of such amalgamation or reconstruction, the entire property, assets and undertaking of the Concessionaire are transferred to the amalgamated or reconstructed entity and that the amalgamated or reconstructed entity has unconditionally assumed the obligations of the Concessionaire under this Agreement and the Project Agreements; and provided that:
(i) the amalgamated or reconstructed entity has the capability and operating experience necessary for the performance of its obligations under this Agreement and the Project Agreements;
(ii) the amalgamated or reconstructed entity has the financial standing to perform its obligations under this Agreement and the Project Agreements and has a credit worthiness at least as good as that of the Concessionaire as at the Appointed Date; and
(iii) each of the Project Agreements remains in full force and effect;
(t) any representation or warranty of the Concessionaire herein contained which is, as of the date hereof, found to be materially false, incorrect or misleading or the Concessionaire is at any time hereafter found to be in breach thereof;
(u) the Concessionaire submits to the Authority any statement, notice or other Document, in written or electronic form, which has a material effect on the Authority's rights, obligations or interests and which is false in material particulars;
(v) the Concessionaire has failed to fulfil any obligation, for which failure Termination has been specified in this Agreement;
(w) the Concessionaire commits a default in complying with any other provision of this Agreement if such default causes a Material Adverse Effect on the Authority;
(x) the Concessionaire fails to pay the Upfront Premium and Annual Concession Fee in accordance with Article 25; or
(y) the COD of Commercial Complex is not achieved by 2555th day of the Appointed Date or by such other extended period as agreed upon by Authority.
33.1.2 Without prejudice to any other rights or remedies which the Authority may have under this Agreement, upon occurrence of a Concessionaire Default, the Authority shall be entitled to terminate this Agreement by issuing a Termination Notice to the Concessionaire; provided that before issuing the Termination Notice, the Authority shall by a notice inform the Concessionaire of its intention to issue such Termination Notice and grant 15 (fifteen) days to the Concessionaire to make a representation, and may after the expiry of such 15 (fifteen) days, whether or not it is in receipt of such representation, issue the Termination Notice, subject to the provisions of Clause 33.1.3.
33.1.3 The Authority shall, if there be Senior Lenders, send a copy of its notice of intention to issue a Termination Notice referred to in Clause 33.1.2 to inform the LendersXxxxxxx’ Representative and grant 15 (fifteen) days to the Lenders’ Representative, for making a representation on behalf of the Senior Lenders stating the intention to substitute the Concessionaire in accordance with the Substitution Agreement. In the event the Authority receives such representation on behalf of Senior Lenders, it shall, in its discretion, either withhold Termination for a period not exceeding 180 (one hundred and eighty) days from the date of such representation or exercise its right of Suspension, as the case may be, for enabling the Lenders' Representative to exercise the Senior Lenders’ right of substitution in accordance with the Substitution Agreement. Provided that the Lenders’ Representative may, instead of exercising the Senior Lenders’ right of substitution, procure that the default specified in the notice is cured within the aforesaid period of 180 (one hundred and eighty) days, and upon such curing thereof, the Authority shall withdraw its notice referred to above and restore all the rights of the Concessionaire. Provided further that upon written request from the Lenders’ Representative and the Concessionaire, the Authority shall extend the aforesaid period of 180 (one hundred and eighty) days by such further period not exceeding 90 (ninety) days, as the Authority may deem appropriate.
Appears in 1 contract
Samples: Concession Agreement
Termination for Concessionaire Default. 33.1.1 29.1.1 Save as otherwise provided in this Agreement, in the event that any of the defaults specified below shall have occurred, and the Concessionaire fails to cure the default within the Cure Period set forth below, or where no Cure Period is specified, then within a Cure Period of 60 (sixty) daysdays or any other duration as mutually agreed between the Parties, the Concessionaire shall be deemed to be in default of this Agreement (the "“Concessionaire Default"”), unless the default has occurred solely as a result of any breach of this Agreement by the Authority or due to Force Majeure. The defaults referred to herein shall includeinclude the following:
(a) the The Construction Period Performance Security or the Operation Period Performance GuaranteeSecurity, as the case may be, has been encashed and appropriated in accordance with Clause 9.4 respectively Article 9.2 and the Concessionaire fails to replenish or provide fresh Construction Period Performance Security or the Operation Period Performance GuaranteeSecurity, as the case may be, within a Cure Period of 30 (thirty) days;
(b) subsequent to the replenishment or furnishing of fresh Construction Period Performance Security or the Performance Guarantee, as the case may be, in accordance with Clause 9.4 respectivelyArticle 9.2, the Concessionaire fails to curecure the Concessionaire Default, for which whole or part of the Construction Period Performance Security or the Operation Period Performance Security was appropriated, within a Cure Period of 90 (ninety) days, the Concessionaire Default for which whole or part of the Performance Security or the Performance Guarantee, as the case may be, was appropriated;
(c) the Concessionaire does not achieve the latest outstanding Project Milestone due in accordance with the provisions of Schedule-G Implementation Schedule and continues to be in default for 120 270 (one two hundred and twentyseventy) days;
(d) the The Concessionaire abandons or manifests intention to abandon the construction of the Additional Project Facilities or operation of the Project Facilities without the prior written consent of the Authority;
(e) Project Completion Date does not occur within the period specified Concessionaire is in Clause 12.4.3material breach of its obligations under Article 17 or the Safety Requirements, as the case may be;
(f) the Punch List items have not been completed within the a period set forth in Clause 14.4.1Article 14.1;
(g) the Concessionaire is in breach of the Maintenance Requirements or the Safety Requirements, as the case may be, or commits repeated default in conforming to the Key Performance Indicators;
(h) the Concessionaire has failed to make any payment to the Authority within the period specified in this Agreement;
(i) an Escrow Default has occurred and the Concessionaire fails to cure the default within a Cure Period of 15 (fifteen) days;
(j) upon occurrence of a Financial Default, the Lenders’ Representative has by notice required the Authority to undertake Suspension or Termination, as the case may be, in accordance with the Substitution Agreement and the Concessionaire fails to cure the default within the Cure Period specified hereinabove;
(k) a breach of any of the Project Agreements by the Concessionaire has caused a Material Adverse Effect;
(lh) the Concessionaire creates any Encumbrance in breach of this Agreement;
(mi) the Concessionaire repudiates this Agreement or otherwise takes any action or evidences or conveys an intention not to be bound by the Agreement;
(nj) a Change in Ownership has occurred in breach of the provisions of Clause Article 5.3;
(ok) there is a transfer, pursuant to law either of (i) the rights and/or obligations of the Concessionaire under any of the Project this Agreements, or of (ii) all or part of the assets or undertaking of the Concessionaire, and such transfer causes a Material Adverse Effect;
(pl) an execution levied on any of the assets of the Concessionaire has caused a Material Adverse Effect;
(qm) the Concessionaire is adjudged bankrupt or insolvent, or if a trustee or receiver is appointed for the Concessionaire or for the whole or material part of its assets that has a material bearing on the execution of the Project;
(rn) the Concessionaire has been, or is in the process of being liquidated, dissolved, wound-wound- up, amalgamated or reconstituted in a manner that would cause, in the reasonable opinion of the Authority, a Material Adverse Effect;
(so) a resolution for winding up of the Concessionaire is passed, or any petition for winding up of the Concessionaire is admitted by a court of competent jurisdiction and a provisional liquidator or receiver is appointed and such order has not been set aside within 90 (ninety) days of the date thereof or the Concessionaire is ordered to be wound up by Court a court except for the purpose of amalgamation or reconstruction; provided that, as part of such amalgamation or reconstruction, the entire property, assets and undertaking of the Concessionaire are transferred to the amalgamated or reconstructed entity and that the amalgamated or reconstructed entity has unconditionally assumed the obligations of the Concessionaire under this Agreement and the Project AgreementsAgreement; and provided that:
(i) the amalgamated or reconstructed entity has the capability and operating experience necessary for the performance of its obligations under this Agreement and the Project AgreementsAgreement;
(ii) the amalgamated or reconstructed entity has the financial standing to perform its obligations under this Agreement and the Project Agreements and has a credit worthiness at least as good as that of the Concessionaire as at the Appointed Date; and.
(iii) each of the Project Agreements remains in full force and effect;
(tp) any representation or warranty of the Concessionaire herein contained which is, as of the date hereof, found to be materially false, incorrect or misleading or the Concessionaire is at any time hereafter found to be in breach thereof;
(uq) the Concessionaire submits to the Authority any statement, notice or other Documentdocument, in written or electronic form, which has a material effect on the Authority's ’s rights, obligations or interests and which is false in material particulars;
(vr) the Concessionaire has failed to fulfil any obligation, for which failure Termination has been specified in this Agreement;
(ws) the Concessionaire commits a default in complying with any other provision of this Agreement if such a default causes a Material Adverse Effect on the AuthorityEffect;
(xt) an Escrow Default has occurred and the Concessionaire fails to pay cure the Upfront Premium and Annual Concession Fee in accordance with Article 25; or
default within a Cure Period of 15 (yfifteen) the COD of Commercial Complex is not achieved by 2555th day of the Appointed Date or by such other extended period as agreed upon by Authoritydays.
33.1.2 29.1.2 Without prejudice to any other rights or remedies which the Authority may have under this Agreement, upon occurrence of a Concessionaire Default, the Authority shall be entitled to terminate this Agreement by issuing a Termination Notice to the Concessionaire; provided that before issuing the Termination Notice, the Authority shall by a notice inform the Concessionaire of its intention to issue such Termination Notice and grant 15 (fifteen) days to the Concessionaire to make a representation, and may after the expiry of such 15 (fifteen) days, whether or not it is in receipt of such representation, issue the Termination Notice, subject to the provisions of Clause 33.1.3Article 29.1.3.
33.1.3 29.1.3 The Authority shall, if there be Senior Lenders, send a copy of its notice of intention to issue a Termination Notice referred to in Clause 33.1.2 Article 29.1.2 to inform the Lenders’ Representative and grant 15 (fifteen) days to the Lenders’ Representative, for making a representation on behalf of the Senior Lenders stating the intention to substitute the Concessionaire in accordance with the Substitution Agreement. In the event the Authority receives such representation on behalf of Senior Lenders, it shall, in its discretion, either withhold Termination for a period not exceeding 180 (one hundred and eighty) days from the date of such representation or exercise its right of Suspension, as the case may be, for enabling the Lenders' ’ Representative to exercise the Senior Lenders’ ' right of substitution in accordance with the Substitution Agreement. Provided that the Lenders’ Representative may, instead of exercising the Senior Lenders’ right of substitution, procure that the default specified in the notice is cured within the aforesaid period of 180 (one hundred and eighty) days, and upon such curing thereof, the Authority shall withdraw its notice referred to above and restore all the rights of the Concessionaire. Provided further that upon written request from the Lenders’ Representative and the Concessionaire, the Authority shall extend the aforesaid period of 180 (one hundred and eighty) days by such further period not exceeding 90 (ninety) days, as the Authority may deem appropriate.
Appears in 1 contract
Samples: Concession Agreement
Termination for Concessionaire Default. 33.1.1 Save as otherwise provided in this Agreement, in the event that any of the defaults specified below shall have occurred, and the Concessionaire fails to cure the default within the Cure Period set forth below, or where no Cure Period is specified, then specified within a Cure Period of 60 (sixty) days, the Concessionaire shall be deemed to be in default of this Agreement (( the "“Concessionaire Default"), ”) unless the default has occurred solely as a result of any breach of this Agreement by the Authority or due to Force Majeure. The defaults referred to herein shall include:
(a) include the following: the Performance Security or the Performance Guarantee, as the case may be, has been encashed and appropriated in accordance with Clause 9.4 respectively 9 and the Concessionaire fails to replenish or provide fresh Performance Security or the Performance Guarantee, as the case may be, performance security within a Cure Period of 30 15 (thirtyfifteen) days;
(b) ; subsequent to the replenishment or furnishing of fresh Performance Security or the Performance Guarantee, as the case may be, in accordance with Clause 9.4 respectively9.2, the Concessionaire fails to cure, within a Cure Period of 90 60 (ninetysixty) days, the Concessionaire Default for which whole or part of the Performance Security or the Performance Guarantee, as the case may be, was appropriated;
(c) the Concessionaire does not achieve the latest outstanding Project Milestone due in accordance with the provisions of Schedule-G and continues to be in default for 120 (one hundred and twenty) days;
(d) ; the Concessionaire abandons or manifests intention to abandon the construction or operation and maintenance of the Project Highway without the prior written consent of the Authority;
(e) Project Completion Date does not occur within ; the period specified Concessionaire fails to roll over, renew and furnish new bank guarantee Performance Security subject to and in accordance with terms of Clause 12.4.3;
(f) the Punch List items have not been completed within the period set forth in Clause 14.4.1;
(g) 9, at least three months prior to expiry of subsisting bank guarantee; the Concessionaire is in breach of the Maintenance Requirements or the Safety Requirements, as the case may be, or commits repeated default in conforming to the Key Performance Indicators;
(h) ; the Concessionaire has failed to make any payment to the Authority within the period specified in this Agreement;
(i) an Escrow Default has occurred and the Concessionaire fails to cure the default within a Cure Period of 15 (fifteen) days;
(j) ; upon occurrence of a Financial Default, the Lenders’ Representative has by notice required the Authority to undertake Suspension or Termination, as the case may be, in accordance with the Substitution Agreement and the Concessionaire fails to cure the default within the Cure Period specified hereinabove;
(k) ; a breach of any of the Project Agreements by the Concessionaire has caused a Material Adverse Effect;
(l) ; the Concessionaire creates any Encumbrance in breach of this Agreement;
(m) ; the Concessionaire repudiates this Agreement or otherwise takes any action or evidences or conveys an intention not to be bound by the Agreement;
(n) ; a Change in Ownership has occurred in breach of the provisions of Clause 5.3;
(o) ; there is a transfer, pursuant to law either of (i) the i)the rights and/or obligations of the Concessionaire under any of the Project Agreements, or of (ii) all or part of the assets or undertaking of the Concessionaire, and such transfer causes a Material Adverse Effect;
(p) ; an execution levied on any of the assets of the Concessionaire has caused a Material Adverse Effect;
(q) ; the Concessionaire is adjudged bankrupt or insolvent, or if a trustee or receiver is appointed for the Concessionaire or for the whole or material part of its assets that has a material bearing on the Project;
(r) ; the Concessionaire has been, or is in the process of being liquidated, dissolved, wound-up, amalgamated or reconstituted in a manner that would cause, in the reasonable opinion of the Authority, a Material Adverse Effect;
(s) ; a resolution for winding up of the Concessionaire is passed, passed or any petition for winding up of the Concessionaire is admitted by a court of competent jurisdiction and a provisional liquidator or receiver is appointed and such order has not been set aside within 90 (ninety) days of the date thereof or the Concessionaire is ordered to be wound up by Court except for the purpose of amalgamation or reconstruction; provided that, as part of such amalgamation or reconstruction, the entire property, assets and undertaking of the Concessionaire are transferred to the amalgamated or reconstructed entity and that the amalgamated or reconstructed entity has unconditionally assumed the obligations of the Concessionaire under this Agreement and the Project Agreements; and provided that:
(i) : the amalgamated or reconstructed entity has the capability and operating experience necessary for the performance of its obligations under this Agreement and the Project Agreements;
(ii) ; the amalgamated or reconstructed entity has the financial standing to perform its obligations under this Agreement and the Project Agreements and has a credit worthiness at least as good as that of the Concessionaire as at the Appointed Date; and
(iii) and each of the Project Agreements remains in full force and effect;
(t) ; any representation or warranty of the Concessionaire herein contained which is, as of the date hereof, found to be materially false, incorrect or misleading or the Concessionaire is at any time hereafter found to be in breach thereof;
(u) misleading; the Concessionaire submits to the Authority any statement, notice or other Documentdocument, in written or electronic form, which has a material effect on the Authority's ’s rights, obligations or interests and which is false in material particulars;
(v) ; the Concessionaire has failed to fulfil any obligation, for which failure Termination has been specified in this Agreement;
(w) ; the Concessionaire commits a default in complying with any other provision of this Agreement if such default causes a Material Adverse Effect on the Authority;
(x) ; an Escrow Default has occurred and the Concessionaire fails to pay cure the Upfront Premium and Annual Concession Fee in accordance with Article 25; or
(y) the COD default within a Cure Period of Commercial Complex is not achieved by 2555th day of the Appointed Date or by such other extended period as agreed upon by Authority.
33.1.2 Without prejudice to any other rights or remedies which the Authority may have under this Agreement, upon occurrence of a Concessionaire Default, the Authority shall be entitled to terminate this Agreement by issuing a Termination Notice to the Concessionaire; provided that before issuing the Termination Notice, the Authority shall by a notice inform the Concessionaire of its intention to issue such Termination Notice and grant 15 (fifteen) days to the Concessionaire to make a representation, and may after the expiry of such 15 (fifteen) days, whether or not it is in receipt of such representation, issue the Termination Notice, subject to the provisions of Clause 33.1.3.
33.1.3 The Authority shall, if there be Senior Lenders, send a copy of its notice of intention to issue a Termination Notice referred to in Clause 33.1.2 to inform the Lenders’ Representative and grant 15 (fifteen) days to the Lenders’ Representative, for making a representation on behalf of the Senior Lenders stating the intention to substitute the Concessionaire in accordance with the Substitution Agreement. In the event the Authority receives such representation on behalf of Senior Lenders, it shall, in its discretion, either withhold Termination for a period not exceeding 180 (one hundred and eighty) days from the date of such representation or exercise its right of Suspension, as the case may be, for enabling the Lenders' Representative to exercise the Senior Lenders’ right of substitution in accordance with the Substitution Agreement. Provided that the Lenders’ Representative may, instead of exercising the Senior Lenders’ right of substitution, procure that the default specified in the notice is cured within the aforesaid period of 180 (one hundred and eighty) days, and upon such curing thereof, the Authority shall withdraw its notice referred to above and restore all the rights of the Concessionaire. Provided further that upon written request from the Lenders’ Representative and the Concessionaire, the Authority shall extend the aforesaid period of 180 (one hundred and eighty) days by such further period not exceeding 90 (ninety) days, as the Authority may deem appropriate.;
Appears in 1 contract
Samples: Concession Agreement
Termination for Concessionaire Default. 33.1.1 30.1.1 Save as otherwise provided in this Agreement, in the event that any of the defaults specified below shall have occurred, and the Concessionaire fails to cure the default within the Cure Period set forth below, or where no Cure Period is specified, then within a Cure Period of 60 (sixty) days, the Concessionaire shall be deemed to be in default of this Agreement (the "“Concessionaire Default"”), unless the default has occurred solely as a result of any breach of this Agreement by the Authority or due to Force Majeure. The defaults referred to herein shall includeinclude the following:
(a) the Performance Security or the Performance Guarantee, as the case may be, has been encashed and appropriated in accordance with Clause 9.4 respectively 9.2 and the Concessionaire fails to replenish or provide fresh Performance Security or the Performance Guarantee, as the case may be, within a Cure Period of 30 15 (thirtyfifteen) days;
(b) subsequent to the replenishment or furnishing of fresh Performance Security in accordance with Clause 9.2, the Concessionaire fails to meet any Condition Precedent or cure the Performance GuaranteeConcessionaire Default, as the case may be, in accordance with Clause 9.4 respectively, the Concessionaire fails to cure, within a Cure Period of 90 (ninety) days, the Concessionaire Default for which whole or part of the Performance Security or the Performance Guarantee, as the case may be, was appropriated, within a Cure Period of 120 (one hundred and twenty) days;
(c) the Concessionaire does not achieve the latest outstanding Project Milestone due in accordance with the provisions of Schedule-G and continues to be in default for 120 60 (one hundred and twentysixty) days;
(d) the Concessionaire abandons or manifests intention to abandon the construction or operation of the Project without the prior written consent of the Authority;
(e) Project Completion Date COD does not occur within the period specified in Clause 12.4.312.3.3;
(f) the Punch List items have not been completed within the period set forth in Clause 14.4.1;
(g) the Concessionaire is in breach of the Maintenance Requirements or the Safety Requirements, as the case may be, or commits repeated default in conforming to the Key Performance Indicators;
(h) the Concessionaire has failed to make any payment including Annual Concession Fee to the Authority within the period specified in this Agreement;
(i) an Escrow Default has occurred and the Concessionaire fails to cure the default within a Cure Period of 15 (fifteen) days;
(j) upon occurrence of a Financial Default, the Lenders’ Representative has by notice required the Authority to undertake Suspension or Termination, as the case may be, in accordance with the Substitution Agreement and the Concessionaire fails to cure the default within the Cure Period specified hereinabove;
(k) a breach of any of the Project Agreements by the Concessionaire has caused a Material Adverse Effect;
(l) the Concessionaire creates any Encumbrance in breach of this Agreement;
(m) the Concessionaire repudiates this Agreement or otherwise takes any action or evidences or conveys an intention not to be bound by the Agreement;
(n) a Change in Ownership has occurred in breach of the provisions of Clause 5.3;
(o) there is a transfer, pursuant to law either of (i) the rights and/or obligations of the Concessionaire under any of the Project Agreements, or of (ii) all or part of the assets or undertaking of the Concessionaire, and such transfer causes a Material Adverse Effect;
(p) an execution levied on any of the assets of the Concessionaire has caused a Material Adverse Effect;
(q) the Concessionaire is adjudged bankrupt or insolvent, or if a trustee or receiver is appointed for the Concessionaire or for the whole or material part of its assets that has a material bearing on the Project;
(r) the Concessionaire has been, or is in the process of being liquidated, dissolved, wound-up, amalgamated or reconstituted in a manner that would cause, in the reasonable opinion of the Authority, a Material Adverse Effect;
(s) occurrence of any Insolvency Event;
(t) the Concessionaire has been or is in the process of being amalgamated or reconstituted in a resolution for winding up manner that would cause, in the reasonable opinion of the Concessionaire is passedAuthority, or any petition for winding up of the Concessionaire is admitted by a court of competent jurisdiction and a provisional liquidator or receiver is appointed and such order has not been set aside within 90 (ninety) days of the date thereof or the Concessionaire is ordered to be wound up by Court except for the purpose of amalgamation or reconstruction; Material Adverse Effect provided that, as part of such amalgamation or reconstruction, the entire property, assets and undertaking of the Concessionaire are transferred to the amalgamated or reconstructed entity and that the amalgamated or reconstructed entity has unconditionally assumed the obligations of the Concessionaire under this Agreement and the Project Agreements; and provided that:
(i) the amalgamated or reconstructed entity has the capability and operating experience necessary for the performance of its obligations under this Agreement and the Project Agreements;
(ii) the amalgamated or reconstructed entity has the financial standing to perform its obligations under this Agreement and the Project Agreements and has a credit worthiness at least as good as that of the Concessionaire as at the Appointed Date; and
(iii) each of the Project Agreements remains in full force and effect;
(tu) any representation or warranty of the Concessionaire herein contained which is, as of the date hereof, found to be materially false, incorrect or misleading or the Concessionaire is at any time hereafter found to be in breach thereof;
(uv) the Concessionaire submits to the Authority any statement, notice or other Documentdocument, in written or electronic form, which has a material effect on the Authority's ’s rights, obligations or interests and which is false in material particulars;
(vw) the Concessionaire has failed to fulfil fulfill any obligation, for which failure Termination has been specified in this Agreement;
(wx) the Concessionaire issues a Termination Notice in violation of this Agreement; or
(y) the Concessionaire commits a default in complying with any other provision of this Agreement if such default causes a Material Adverse Effect on the Authority;
(x) the Concessionaire fails to pay the Upfront Premium and Annual Concession Fee in accordance with Article 25; or
(y) the COD of Commercial Complex is not achieved by 2555th day of the Appointed Date or by such other extended period as agreed upon by Authority.
33.1.2 30.1.2 Without prejudice to any other rights or remedies which the Authority may have under this Agreement, upon occurrence of a Concessionaire Default, the Authority shall be entitled to terminate this Agreement by issuing a Termination Notice to the Concessionaire; provided that before issuing the Termination Notice, the Authority shall shall, by a notice notice, inform the Concessionaire of its intention to issue such Termination Notice and grant 15 (fifteen) days to the Concessionaire to make a representation, and may after the expiry of such 15 (fifteen) days, whether or not it is in receipt of such representation, issue the Termination Notice, subject to the provisions of Clause 33.1.330.1.3.
33.1.3 30.1.3 The Authority shall, if there be Senior Lenders, send a copy of its notice of intention to issue a Termination Notice referred to in Clause 33.1.2 30.1.2 to inform the Lenders’ Representative and grant 15 (fifteen) days to the Lenders’ Representative, for making a representation on behalf of the Senior Lenders stating the intention to substitute the Concessionaire in accordance with the Substitution Agreement. In the event the Authority receives such representation on behalf of Senior Lenders, it shall, in its discretion, either withhold Termination for a period not exceeding 180 (one hundred and eighty) days from the date of such representation or exercise its right of Suspension, as the case may be, for enabling the Lenders' ’ Representative to exercise the Senior Lenders’ ' right of substitution in accordance with the Substitution Agreement. : Provided that the Lenders’ Representative may, instead of exercising the Senior Lenders’ right of substitution, procure that the default specified in the notice is cured within the aforesaid period of 180 (one hundred and eighty) days, and upon such curing thereof, the Authority shall withdraw its notice referred to above and restore all the rights of the Concessionaire. Provided further that upon written request from the Lenders’ Representative and the Concessionaire, the Authority shall extend the aforesaid period of 180 (one hundred and eighty) days by such further period not exceeding 90 (ninety) days, as the Authority may deem appropriate.
Appears in 1 contract
Samples: Concession Agreement
Termination for Concessionaire Default. 33.1.1 31.1.1 Save as otherwise provided in this Agreement, in the event that any of the defaults specified below shall have occurred, and the Concessionaire fails to cure the default within the Cure Period set forth below, or where no Cure Period is specified, then within a Cure Period of 60 (sixty) days, the Concessionaire shall be deemed to be in default of this Agreement (the "Concessionaire Default"), unless the default has occurred solely as a result of any breach of this Agreement by the Concessioning Authority or due to Force Majeure. The defaults referred to herein shall include:
(a) the Performance Security or the Performance Guarantee, as the case may be, has been encashed and appropriated in accordance with Clause 9.4 respectively 9.2 and the Concessionaire fails to replenish or provide fresh Performance Security or the Performance Guarantee, as the case may be, within a Cure Period of 30 (thirty) days;
(b) subsequent to the replenishment or furnishing of fresh Performance Security or the Performance Guarantee, as the case may be, in accordance with Clause 9.4 respectively9.2, the Concessionaire fails to cure, within a Cure Period of 90 (ninety) days, the Concessionaire Default for which whole or part of the Performance Security or the Performance Guarantee, as the case may be, was appropriated;
(c) the Concessionaire does not achieve the latest outstanding Project Milestone due in accordance with the provisions of Schedule-G and continues to be in default for 120 (one One hundred and twentyTwenty) days;
(d) the Concessionaire abandons or manifests intention to abandon the construction automation or operation of the Project at any of the Project Site(s) without the prior written consent of the Concessioning Authority;
(e) Project Completion Date does not occur within the period specified in Clause 12.4.3;
(f) the Punch List items have not been completed within the period set forth in Clause 14.4.1;
(g) the Concessionaire is in breach of the Maintenance Requirements or the Safety Requirements, as the case may be, or commits repeated default in conforming to the Key Performance Indicators;
(h) the Concessionaire has failed to make any payment to the Concessioning Authority within the period specified in this Agreement;
(i) an Escrow Default has occurred and the Concessionaire fails to cure the default within a Cure Period of 15 (fifteen) days;
(j) upon occurrence of a Financial Default, the Lenders’ ' Representative has by notice required the Concessioning Authority to undertake Suspension or Termination, as the case may be, in accordance with the Substitution Agreement and the Concessionaire fails to cure the default within the Cure Period specified hereinabove;
(kj) a breach of any of the Project Agreements by the Concessionaire has caused a Material Adverse Effect;
(lk) the Concessionaire creates any Encumbrance in breach of this Agreement;
(ml) the Concessionaire repudiates this Agreement or otherwise takes any action or evidences or conveys an intention not to be bound by the Agreement;
(nm) a Change in Ownership has occurred in breach of the provisions of Clause 5.3;
(on) there is a transfer, pursuant to law either of of
(i) the rights and/or obligations of the Concessionaire under any of the Project Agreements, or of or
(ii) of all or part of the assets or undertaking of the Concessionaire, and such transfer causes a Material Adverse Effect;
(po) an execution levied on any of the assets of the Concessionaire has caused a Material Adverse Effect;
(qp) the Concessionaire is adjudged bankrupt or insolvent, or if a trustee or receiver is appointed for the Concessionaire or for the whole or material part of its assets that has a material bearing on the Project;
(rq) the Concessionaire has been, or is in the process of being liquidated, dissolved, wound-up, amalgamated or reconstituted in a manner that would cause, in the reasonable opinion of the Concessioning Authority, a Material Adverse Effect;
(sr) a resolution for winding up of the Concessionaire is passed, or any petition for winding up of the Concessionaire is admitted by a court of competent jurisdiction and a provisional liquidator or receiver is appointed and such order has not been set aside within 90 (ninety) days of the date thereof or the Concessionaire is ordered to be wound up by Court except for the purpose of amalgamation or reconstruction; provided that, as part of such amalgamation or reconstruction, the entire property, assets and undertaking of the Concessionaire are transferred to the amalgamated or reconstructed entity and that the amalgamated or reconstructed entity has unconditionally assumed the obligations of the Concessionaire under this Agreement and the Project Agreements; and provided that:
(i) the amalgamated or reconstructed entity has the capability and operating experience necessary for the performance of its obligations under this Agreement and the Project Agreements;
(ii) the amalgamated or reconstructed entity has the financial standing to perform its obligations under this Agreement and the Project Agreements and has a credit worthiness at least as good as that of the Concessionaire as at the Appointed Date; and
(iii) each of the Project Agreements remains in full force and effect;
(ts) any representation or warranty of the Concessionaire herein contained which is, as of the date hereof, found to be materially false, incorrect or misleading or the Concessionaire is at any time hereafter found to be in breach thereof;
(ut) the Concessionaire submits to the Concessioning Authority any statement, notice or other Documentdocument, in written or electronic form, which has a material effect on the AuthorityConcessioning Authority 's rights, obligations or interests and which is false in material particulars;
(vu) the Concessionaire has failed to fulfil any obligation, for which failure Termination has been specified in this Agreement;; or
(wv) the Concessionaire commits a default in complying with any other provision of this Agreement if such default causes a Material Adverse Effect on the Authority;
(x) the Concessionaire fails to pay the Upfront Premium and Annual Concession Fee in accordance with Article 25; or
(y) the COD of Commercial Complex is not achieved by 2555th day of the Appointed Date or by such other extended period as agreed upon by AuthorityGovernment.
33.1.2 31.1.2 Without prejudice to any other rights or remedies which the Concessioning Authority may have under this Agreement, upon occurrence of a Concessionaire Default, the Concessioning Authority shall be entitled to terminate this Agreement by issuing a Termination Notice to the Concessionaire; provided that before issuing the Termination Notice, the Concessioning Authority shall by a notice inform the Concessionaire of its intention to issue such Termination Notice and grant 15 (fifteen) days to the Concessionaire to make a representation, and may after the expiry of such 15 (fifteen) days, whether or not it is in receipt of such representation, issue the Termination Notice, subject to the provisions of Clause 33.1.3clause 31.1.3.
33.1.3 31.1.3 The Concessioning Authority shall, if there be Senior Lenders, send a copy of its notice of intention to issue a Termination Notice referred to in Clause 33.1.2 31.1.2 to inform the Lenders’ Xxxxxxx' Representative and grant 15 (fifteen) days to the Lenders’ ' Representative, for making a representation on behalf of the Senior Lenders stating the intention to substitute the Concessionaire in accordance with the Substitution Agreement. In the event the Concessioning Authority receives such representation on behalf of Senior Lenders, it shall, in its discretion, either withhold Termination for a period not exceeding 180 (one hundred and eighty) days from the date of such representation or exercise its right of Suspension, as the case may be, for enabling the Lenders' Representative to exercise the Senior Lenders’ ' right of substitution in accordance with the Substitution Agreement. : Provided that the Lenders’ ' Representative may, instead of exercising the Senior Lenders’ ' right of substitution, procure that the default specified in the notice is cured within the aforesaid period of 180 (one hundred and eighty) days, and upon such curing thereof, the Concessioning Authority shall withdraw its notice referred to above and restore all the rights of the Concessionaire. : Provided further that upon written request from the Lenders’ ' Representative and the Concessionaire, the Concessioning Authority shall extend the aforesaid period of 180 (one hundred and eighty) days by such further period not exceeding 90 (ninety) days, as the Concessioning Authority may deem appropriate.
Appears in 1 contract
Samples: Concession Agreement
Termination for Concessionaire Default. 33.1.1 32.1.1. Save as otherwise provided in this Agreement, in the event that any of the defaults specified below shall have occurred, and the Concessionaire fails to cure the default within the Cure Period set forth below, or where no Cure Period is specified, then within a Cure Period of 60 (sixty) days, the Concessionaire shall be deemed to be in default of this Agreement (the "“Concessionaire Default"”), unless the default has occurred solely as a result of any breach of this Agreement by the Authority or due to Force Majeure. The defaults referred to herein shall include:
(a) the Performance Security or the Performance Guarantee, as the case may be, has been encashed en-cashed and appropriated in accordance with Clause 9.4 respectively 9.2 and the Concessionaire fails to replenish or provide fresh Performance Security or the Performance Guarantee, as the case may be, within a Cure Period of 30 (thirty) days;
(b) subsequent to the replenishment or furnishing of fresh Performance Security or the Performance Guarantee, as the case may be, in accordance with Clause 9.4 respectively9.2, the Concessionaire fails to cure, within a Cure Period of 90 (ninety) days, the Concessionaire Default for which whole or part of the Performance Security or the Performance Guarantee, as the case may be, was appropriated;
(c) the Concessionaire does not achieve the latest outstanding Project Milestone due in accordance with the provisions of Schedule-G Schedule N and continues to be in default for 120 (one hundred and twenty) days;
(d) the Concessionaire abandons or manifests intention to abandon the construction or operation of the Project Storage Facility without the prior written consent of the Authority;
(e) Project Completion Date does not occur within the period specified in Clause 12.4.312.3.3;
(f) the Punch List items have not been completed within the period set forth in Clause 14.4.1;
(g) the Concessionaire is in breach of the Maintenance Requirements or the Safety Requirements, as the case may be, or commits repeated default in conforming to the Key Performance Indicators;
(h) the Concessionaire has failed to make any payment to the Authority within the period specified in this Agreement;
(i) an Escrow Default has occurred and the Concessionaire fails to cure the default within a Cure Period of 15 (fifteen) days;
(j) upon occurrence of a Financial Default, the Lenders’ Representative has by notice required the Authority to undertake Suspension or Termination, as the case may be, in accordance with the Substitution Agreement and the Concessionaire fails to cure the default within the Cure Period specified hereinabove;
(k) a breach of any of the Project Agreements by the Concessionaire has caused a Material Adverse Effect;
(l) the Concessionaire creates any Encumbrance in breach of this Agreement;
(m) the Concessionaire repudiates this Agreement or otherwise takes any action or evidences or conveys an intention not to be bound by the Agreement;
(n) a Change in Ownership has occurred in breach of the provisions of Clause 5.3;
(o) there is a transfer, pursuant to law either of (i) the rights and/or obligations of the Concessionaire under any of the Project Agreements, or of (ii) all or part of the assets or undertaking of the Concessionaire, and such transfer causes a Material Adverse Effect;
(p) an execution levied on any of the assets of the Concessionaire has caused a Material Adverse Effect;
(q) the Concessionaire is adjudged bankrupt or insolvent, or if a trustee or receiver is appointed for the Concessionaire or for the whole or material part of its assets that has a material bearing on the Project;
(r) the Concessionaire has been, or is in the process of being liquidated, dissolved, wound-up, amalgamated or reconstituted in a manner that would cause, in the reasonable opinion of the Authority, a Material Adverse Effect;
(s) a resolution for winding up of the Concessionaire is passed, or any petition for winding up of the Concessionaire is admitted by a court of competent jurisdiction and a provisional liquidator or receiver is appointed and such order has not been set aside within 90 (ninety) days of the date thereof or the Concessionaire is ordered to be wound up by Court except for the purpose of amalgamation or reconstruction; provided that, as part of such amalgamation or reconstruction, the entire property, assets and undertaking of the Concessionaire are transferred to the amalgamated or reconstructed entity and that the amalgamated or reconstructed entity has unconditionally assumed the obligations of the Concessionaire under this Agreement and the Project Agreements; and provided that:
(i) the amalgamated or reconstructed entity has the capability and operating experience necessary for the performance of its obligations under this Agreement and the Project Agreements;
(ii) the amalgamated or reconstructed entity has the financial standing to perform its obligations under this Agreement and the Project Agreements and has a credit worthiness at least as good as that of the Concessionaire as at the Appointed Date; and
(iii) each of the Project Agreements remains in full force and effect;
(t) any representation or warranty of the Concessionaire herein contained which is, as of the date hereof, found to be materially false, incorrect or misleading or the Concessionaire is at any time hereafter found to be in breach thereof;
(u) the Concessionaire submits to the Authority any statement, notice or other Document, in written or electronic form, which has a material effect on the Authority's rights, obligations or interests and which is false in material particulars;
(v) the Concessionaire has failed to fulfil any obligation, for which failure Termination has been specified in this Agreement;
(w) the Concessionaire commits a default in complying with any other provision of this Agreement if such default causes a Material Adverse Effect on the Authority;
(x) the Concessionaire fails to pay the Upfront Premium and Annual Concession Fee in accordance with Article 25; or
(y) the COD of Commercial Complex is not achieved by 2555th day of the Appointed Date or by such other extended period as agreed upon by Authority.
33.1.2 Without prejudice to any other rights or remedies which the Authority may have under this Agreement, upon occurrence of a Concessionaire Default, the Authority shall be entitled to terminate this Agreement by issuing a Termination Notice to the Concessionaire; provided that before issuing the Termination Notice, the Authority shall by a notice inform the Concessionaire of its intention to issue such Termination Notice and grant 15 (fifteen) days to the Concessionaire to make a representation, and may after the expiry of such 15 (fifteen) days, whether or not it is in receipt of such representation, issue the Termination Notice, subject to the provisions of Clause 33.1.3.
33.1.3 The Authority shall, if there be Senior Lenders, send a copy of its notice of intention to issue a Termination Notice referred to in Clause 33.1.2 to inform the Lenders’ Representative and grant 15 (fifteen) days to the Lenders’ Representative, for making a representation on behalf of the Senior Lenders stating the intention to substitute the Concessionaire in accordance with the Substitution Agreement. In the event the Authority receives such representation on behalf of Senior Lenders, it shall, in its discretion, either withhold Termination for a period not exceeding 180 (one hundred and eighty) days from the date of such representation or exercise its right of Suspension, as the case may be, for enabling the Lenders' Representative to exercise the Senior Lenders’ right of substitution in accordance with the Substitution Agreement. Provided that the Lenders’ Representative may, instead of exercising the Senior Lenders’ right of substitution, procure that the default specified in the notice is cured within the aforesaid period of 180 (one hundred and eighty) days, and upon such curing thereof, the Authority shall withdraw its notice referred to above and restore all the rights of the Concessionaire. Provided further that upon written request from the Lenders’ Representative and the Concessionaire, the Authority shall extend the aforesaid period of 180 (one hundred and eighty) days by such further period not exceeding 90 (ninety) days, as the Authority may deem appropriate.
Appears in 1 contract
Samples: Concession Agreement
Termination for Concessionaire Default. 33.1.1 39.1.1 Save as otherwise provided in this Agreement, in the event that any of the defaults specified below shall have occurred, and the Concessionaire fails to cure the default within the Cure Period set forth below, or where no Cure Period is specified, then within a Cure Period of 60 (sixty) days, the Concessionaire shall be deemed to be in default of this Agreement (the "“Concessionaire Default"”), unless the default has occurred solely as a result of any breach of this Agreement by the Authority or due to Force Majeure. The defaults referred to herein shall include:
(a) the Performance Security or the Performance Guarantee, as the case may be, has been encashed and appropriated in accordance with Clause 9.4 respectively 9.2 and the Concessionaire fails to replenish or provide fresh Performance Security or the Performance Guarantee, as the case may be, within a Cure Period of 30 (thirty) days;
(b) subsequent to the replenishment or furnishing of fresh Performance Security or the Performance Guarantee, as the case may be, in accordance with Clause 9.4 respectively9.2, the Concessionaire fails to cure, within a Cure Period of 90 (ninety) days, the Concessionaire Default for which whole or part of the Performance Security or the Performance Guarantee, as the case may be, was appropriated;
(c) the Concessionaire does not achieve the latest outstanding Project Milestone due in accordance with the provisions of Schedule-G and continues to be in default for 120 (one hundred and twenty) days;
(d) the Concessionaire abandons or manifests intention to abandon the construction or operation of the Project Hospital and/or the Medical College without the prior written consent of the Authority;
(e) Project Completion Date does the Operation Dates have not occur been achieved within the period specified periods set forth in Clause 12.4.315;
(f) the Punch List items have not been completed within the period set forth in Clause 14.4.114.6.1;
(g) the Concessionaire is in breach of the Maintenance Requirements or the Safety Requirements, as the case may be, or commits repeated default in conforming to the Key Performance IndicatorsO&M obligations as set forth in Clause 17.1;
(h) the Concessionaire has failed to make any payment to the Authority within the period specified in this Agreement;
(i) an Escrow Default has occurred and the Concessionaire fails to cure the default within a Cure Period of 15 (fifteen) days;
(j) upon occurrence of a Financial Default, the Lenders’ Representative has by notice required the Authority to undertake Suspension or Termination, as the case may be, in accordance with the Substitution Agreement and the Concessionaire fails to cure the default within the Cure Period specified hereinabove;
(kj) a breach of any of the Project Agreements by the Concessionaire has caused a Material Adverse Effect;
(lk) the Concessionaire creates any Encumbrance in breach of this Agreement;
(ml) the Concessionaire repudiates this Agreement or otherwise takes any action or evidences or conveys an intention not to be bound by the Agreement;
(nm) a Change in Ownership has occurred in breach of the provisions of Clause 5.3;
(on) there is a transfer, pursuant to law either of (i) the rights and/or obligations of the Concessionaire under any of the Project Agreements, or of (ii) all or part of the assets or undertaking of the Concessionaire, and such transfer causes a Material Adverse Effect;
(po) an execution levied on any of the assets of the Concessionaire has caused a Material Adverse Effect;
(qp) the Concessionaire is adjudged bankrupt or insolvent, or if a trustee or receiver is appointed for the Concessionaire or for the whole or material part of its assets that has a material bearing on the Project;
(rq) the Concessionaire has been, or is in the process of being liquidated, dissolved, wound-up, amalgamated or reconstituted in a manner that would cause, in the reasonable opinion of the Authority, a Material Adverse Effect;
(sr) a resolution for winding up of the Concessionaire is passed, or any petition for winding up of the Concessionaire is admitted by a court of competent jurisdiction and a provisional liquidator or receiver is appointed and such order has not been set aside within 90 (ninety) days of the date thereof or the Concessionaire is ordered to be wound up by Court except for the purpose of amalgamation or reconstruction; provided that, as part of such amalgamation or reconstruction, the entire property, assets and undertaking of the Concessionaire are transferred to the amalgamated or reconstructed entity and that the amalgamated or reconstructed entity has unconditionally assumed the obligations of the Concessionaire under this Agreement and the Project Agreements; and provided that:
(i) the amalgamated or reconstructed entity has the capability and operating experience necessary for the performance of its obligations under this Agreement and the Project Agreements;
(ii) the amalgamated or reconstructed entity has the financial standing to perform its obligations under this Agreement and the Project Agreements and has a credit worthiness at least as good as that of the Concessionaire as at the Appointed Date; and
(iii) each of the Project Agreements remains in full force and effect;
(ts) any representation or warranty of the Concessionaire herein contained which is, as of the date hereof, found to be materially false, incorrect or misleading or the Concessionaire is at any time hereafter found to be in breach thereof;
(ut) the Concessionaire submits to the Authority any statement, notice or other Documentdocument, in written or electronic form, which has a material effect on the Authority's ’s rights, obligations or interests and which is false in material particulars;
(vu) the Concessionaire has failed to fulfil any obligation, for which failure Termination has been specified in this Agreement;; or
(wv) the Concessionaire commits a default in complying with any other provision of this Agreement if such default causes a Material Adverse Effect on the Authority;
(x) the Concessionaire fails to pay the Upfront Premium and Annual Concession Fee in accordance with Article 25; or
(y) the COD of Commercial Complex is not achieved by 2555th day of the Appointed Date or by such other extended period as agreed upon by Authority.
33.1.2 Without prejudice to any other rights or remedies which the Authority may have under this Agreement, upon occurrence of a Concessionaire Default, the Authority shall be entitled to terminate this Agreement by issuing a Termination Notice to the Concessionaire; provided that before issuing the Termination Notice, the Authority shall by a notice inform the Concessionaire of its intention to issue such Termination Notice and grant 15 (fifteen) days to the Concessionaire to make a representation, and may after the expiry of such 15 (fifteen) days, whether or not it is in receipt of such representation, issue the Termination Notice, subject to the provisions of Clause 33.1.3.
33.1.3 The Authority shall, if there be Senior Lenders, send a copy of its notice of intention to issue a Termination Notice referred to in Clause 33.1.2 to inform the Lenders’ Representative and grant 15 (fifteen) days to the Lenders’ Representative, for making a representation on behalf of the Senior Lenders stating the intention to substitute the Concessionaire in accordance with the Substitution Agreement. In the event the Authority receives such representation on behalf of Senior Lenders, it shall, in its discretion, either withhold Termination for a period not exceeding 180 (one hundred and eighty) days from the date of such representation or exercise its right of Suspension, as the case may be, for enabling the Lenders' Representative to exercise the Senior Lenders’ right of substitution in accordance with the Substitution Agreement. Provided that the Lenders’ Representative may, instead of exercising the Senior Lenders’ right of substitution, procure that the default specified in the notice is cured within the aforesaid period of 180 (one hundred and eighty) days, and upon such curing thereof, the Authority shall withdraw its notice referred to above and restore all the rights of the Concessionaire. Provided further that upon written request from the Lenders’ Representative and the Concessionaire, the Authority shall extend the aforesaid period of 180 (one hundred and eighty) days by such further period not exceeding 90 (ninety) days, as the Authority may deem appropriate.
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Samples: Concession Agreement
