Common use of Port Site Clause in Contracts

Port Site. 23.1 The TNPA shall be the owner of the Project Site for the duration of this Agreement. The Terminal Operator acknowledges the ownership rights of the TNPA in respect of the Project Site on which the Port is constructed and shall not in any way challenge or procure that any person challenges or assists any other person to challenge, such ownership rights and title of the TNPA. 23.2 The Terminal Operator acknowledges that it does not have and shall not have any rights of title, ownership, lien, leasehold or any other rights in respect of the Port Site, other than the rights of occupation and use as detailed in this Agreement. 23.3 The Terminal Operator shall have the right to use and occupy the Port Site, commencing on the Effective Date. 23.4 The Terminal Operator shall, in respect of its rights of use of the Port Site, pay to the TNPA the amount of [R insert the prevailing rate] per square meter per month (excluding rates and taxes referred to in clause 23.6). All amounts payable by the Terminal Operator in terms of this clause 23.4, shall be paid monthly in advance, by no later than the 7th day of each month, commencing on the Effective Date. 23.5 The amount payable by the Terminal Operator in terms of clause 5.2 may be escalated in accordance with the following principles: 23.5.1 the Parties shall meet in order to agree on the escalation that shall apply in respect of the subsequent Contract Year taking into account the value of the land on which the Project Site is situated; 23.5.2 should the Parties fail to reach an agreement on any escalation referred to in clause 23.5.1, the matter shall be referred to an independent valuer registered with the South African Institute of Valuers who, in the absence of agreement between the Parties, shall be appointed by the President of the South African Institute of Valuers (or any successor entity), for determination in terms of clause 53.5 (fast-track dispute resolution). Any decision of the independent valuer shall, in the absence of manifest error or fraud, be final and binding on the Parties. 23.6 The Terminal Operator accepts responsibility for the payment of rates, taxes, charges, levies, assessments or any equivalent taxation which may at any time be levied by a Responsible Authority upon or in connection with the Project Site, in respect of the period covered by this Agreement, other than any taxes imposed in relation to the receipt by the TNPA of the payment detailed in clause 23.4 or in connection with its disposal of its interest in the Project Site used by the Terminal Operator or in relation to any other amounts received by or accrued to the TNPA as a result of or in connection with this Agreement or the Project Site used by the Terminal Operator. 23.7 If the TNPA is obliged by the Responsible Authority to make payments referred to in clause 23.6, as a result of which the TNPA makes such payments on behalf of the Terminal Operator, the TNPA shall notify the Terminal Operator in writing about such payments and following such notice the Terminal Operator shall, within 30 (thirty) days after being called upon to do so, refund to the TNPA such payments as the TNPA may have made in respect of the rates, taxes, charges, levies, assessments or equivalent taxes levied. 23.8 The TNPA shall use its reasonable endeavours to ensure that no other Port Users negatively affect the use by the Terminal Operator of the Port Site. The Terminal Operator shall not negatively affect the use of the Port by the TNPA and the other Port Users, other than the Project Site and then only to the extent detailed in this Agreement. 23.9 The TNPA shall have the right to enter into and inspect the Project Site and the Terminal at reasonable times and on reasonable notice so as to enable it to inspect the Project Site and the Terminal, to fulfil its obligations of maintenance in respect of the Port and to fulfil its obligations as the port authority of South Africa. 23.10 The Terminal Operator shall use the Project Site solely for the uses and purposes contemplated in this Agreement in respect of the Project. 23.11 The Terminal Operator shall be responsible for maintaining the Terminal in good condition, fair wear and tear excepted, at no cost to the TNPA or any other Port User. The TNPA shall maintain or shall use its reasonable endeavours to procure that other Port Users maintain the Port, other than the Terminal, in good condition, fair wear and tear excepted, at the cost of the TNPA or the relevant Port User. The Parties shall meet and discuss any intended maintenance or repair activities so as to ensure that such activities are conducted in a manner that minimises any interference with the operations of the other party. 23.12 The Terminal Operator shall not be able to transfer any of its rights in respect of the Project Site or the use thereof to any other person without the prior written consent of the TNPA, save for any transfer to the Lenders, in accordance with clause 45.6 (▇▇▇▇▇▇'s step-in), which shall take place in accordance with the provisions of the Direct Agreement. 23.13 The Terminal Operator shall, subject to the TNPA’s approval, provide for: 23.13.1 the clearance of the Port Site; 23.13.2 security of the Port Site; 23.13.3 the clearance, relocation and diversion of all Utilities on the Port Site, from the date the Project Site is delivered to the Terminal Operator and which are necessary for the execution of the Project. 23.14 The Terminal Operator shall, at its cost, apply for all Consents required for the clearance of the Port Site. 23.15 The Terminal Operator shall continue to be bound by and shall honour any existing agreements between the TNPA and any person, which grant access or way-leaves to the Port Site. The Terminal Operator may, however, apply to the TNPA for any necessary modifications or cancellations of such agreements, such application to be made timeously in order to avoid any delay or additional cost. To the extent that the TNPA has the right to modify or cancel such agreements, it shall comply timeously with the Terminal Operator’s reasonable request to modify and or cancel any such agreements. 23.16 The TNPA warrants to the Terminal Operator that, to the best of its knowledge, all of agreements referred to in clause 23.15 are listed in Schedule 17 and that the TNPA has provided the Terminal Operator with true and complete copies of such agreements.

Port Site. 23.1 The TNPA shall be the owner of the Project Site for the duration of this Agreement. The Terminal Operator acknowledges the ownership rights of the TNPA in respect of the Project Site on which the Port is constructed and shall not in any way challenge or procure that any person challenges or assists any other person to challenge, such ownership rights and title of the TNPA.] 23.2 The Terminal Operator acknowledges that it does not have and shall not have any rights of title, ownership, lien, leasehold or any other rights in respect of the Port Site, other than the rights of occupation and use as detailed in this Agreement. 23.3 The Terminal Operator shall have the right to use and occupy the Port Site, commencing on the Effective Date. 23.4 The Terminal Operator shall, in respect of its rights of use of the Port Site, pay to the TNPA the amount of [R insert the prevailing rate] per square meter per month (excluding rates and taxes referred to in clause 23.6). All amounts payable by the Terminal Operator in terms of this clause 23.4, shall be paid monthly in advance, by no later than the 7th day of each month, commencing on the Effective Date. 23.5 The amount payable by the Terminal Operator in terms of clause 5.2 may be escalated in accordance with the following principles: 23.5.1 the Parties shall meet in order to agree on the escalation that shall apply in respect of the subsequent Contract Year taking into account the value of the land on which the Project Site is situated; 23.5.2 should the Parties fail to reach an agreement on any escalation referred to in clause 23.5.1, the matter shall be referred to an independent valuer registered with the South African Institute of Valuers who, in the absence of agreement between the Parties, shall be appointed by the President of the South African Institute of Valuers (or any successor entity), for determination in terms of clause 53.5 (fast-track dispute resolution). Any decision of the independent valuer shall, in the absence of manifest error or fraud, be final and binding on the Parties.] [Note: engagement with the TNPA and escalation thereof is required in respect of the rental payable by the Terminal Operator.] 23.6 The Terminal Operator accepts responsibility for the payment of rates, taxes, charges, levies, assessments or any equivalent taxation which may at any time be levied by a Responsible Authority upon or in connection with the Project Site, in respect of the period covered by this Agreement, other than any taxes imposed in relation to the receipt by the TNPA of the payment detailed in clause 23.4 [23.4] or in connection with its disposal of its interest in the Project Site used by the Terminal Operator or in relation to any other amounts received by or accrued to the TNPA as a result of or in connection with this Agreement or the Project Site used by the Terminal Operator. 23.7 If the TNPA is obliged by the Responsible Authority to make payments referred to in clause 23.6, as a result of which the TNPA makes such payments on behalf of the Terminal Operator, the TNPA shall notify the Terminal Operator in writing about such payments and following such notice the Terminal Operator shall, within 30 (thirty) days after being called upon to do so, refund to the TNPA such payments as the TNPA may have made in respect of the rates, taxes, charges, levies, assessments or equivalent taxes levied. 23.8 The TNPA shall use its reasonable endeavours to ensure that no other Port Users negatively affect the use by the Terminal Operator of the Port Site. The Terminal Operator shall not negatively affect the use of the Port by the TNPA and the other Port Users, other than the Project Site and then only to the extent detailed in this Agreement. 23.9 The TNPA shall have the right to enter into and inspect the Project Site and the LPG Terminal at reasonable times and on reasonable notice so as to enable it to inspect the Project Site and the TerminalLPG Terminal , to fulfil its obligations of maintenance in respect of the Port and to fulfil its obligations as the port authority of South Africa. 23.10 The Terminal Operator shall use the Project Site solely for the uses and purposes contemplated in this Agreement in respect of the Project. 23.11 The Terminal Operator shall be responsible for maintaining the LPG Terminal in good condition, fair wear and tear excepted, at no cost to the TNPA or any other Port User. The TNPA shall maintain or shall use its reasonable endeavours to procure that other Port Users maintain the Port, other than the LPG Terminal, in good condition, fair wear and tear excepted, at the cost of the TNPA or the relevant Port User. The Parties shall meet and discuss any intended maintenance or repair activities so as to ensure that such activities are conducted in a manner that minimises any interference with the operations of the other party. 23.12 The Terminal Operator shall not be able to transfer any of its rights in respect of the Project Site or the use thereof to any other person without the prior written consent of the TNPA, save for any transfer to the Lenders, in accordance with clause 45.6 (▇▇▇▇▇▇'s step-in), which shall take place in accordance with the provisions of the Direct Agreement. 23.13 The Terminal Operator shall, subject to the TNPA’s approval, provide for: 23.13.1 the clearance of the Port Site; 23.13.2 security of the Port Site; 23.13.3 the clearance, relocation and diversion of all Utilities on the Port Site, from the date the Project Site is delivered to the Terminal Operator and which are necessary for the execution of the Project. 23.14 The Terminal Operator shall, at its cost, apply for all Consents required for the clearance of the Port Site. 23.15 The Terminal Operator shall continue to be bound by and shall honour any existing agreements between the TNPA and any person, which grant access or way-leaves to the Port Site. The Terminal Operator may, however, apply to the TNPA for any necessary modifications or cancellations of such agreements, such application to be made timeously in order to avoid any delay or additional cost. To the extent that the TNPA has the right to modify or cancel such agreements, it shall comply timeously with the Terminal Operator’s reasonable request to modify and or cancel any such agreements. 23.16 The TNPA warrants to the Terminal Operator that, to the best of its knowledge, all of agreements referred to in clause 23.15 are listed in Schedule 17 and that the TNPA has provided the Terminal Operator with true and complete copies of such agreements.