Termination for Concessionaire Default. 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 90 (ninety) 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 has been encashed and appropriated in accordance with ARTICLE 9 and the Concessionaire fails to replenish or provide fresh Performance Security within a Cure Period of 30 (thirty) days; b) the Concessionaire abandons or manifests intention to abandon the operation of the Project without the prior written consent of the Authority; c) the Concessionaire fails to undertake or complete the construction of the Mandatory Development Obligations in accordance with ARTICLE 12; d) 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; f) an Escrow Default has occurred and the Concessionaire fails to cure the default within a Cure Period of 15 (fifteen) days; g) a breach of any of the Project Agreements by the Concessionaire has caused a Material Adverse Effect; h) the Concessionaire creates any Encumbrance in breach of this Agreement; i) the Concessionaire repudiates this Agreement or otherwise takes any action or evidences or conveys an intention not to be bound by the Agreement; j) a Change in Ownership has occurred in breach of the provisions of Article 5.4; k) 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; n) 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; o) 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; p) 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: 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; 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 COD; and c. each of the Project Agreements remains in full force and effect; q) 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; r) 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; s) the Concessionaire has failed to fulfil any obligation, for which failure, Termination has been specified in this Agreement; or t) the Concessionaire commits a default in complying with any other provision of this Agreement if such default cause a Material Adverse Effect on the Authority. 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 30 (thirty) days to the Concessionaire 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. 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 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
Sources: Concession Agreement
Termination for Concessionaire Default. 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 90 (ninety) 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) a. the Performance Security has been encashed and appropriated in accordance with ARTICLE Article 9 and the Concessionaire fails to replenish or provide fresh Performance Security within a Cure Period of 30 (thirty) days;
b) b. the Concessionaire abandons or manifests intention to abandon the operation of the Project without the prior written consent of the Authority;
c) c. the Concessionaire fails to undertake or complete the construction of the Mandatory Development Obligations Development, Operation and Maintenance of the project site in accordance with ARTICLE Article 12;
d) d. the Concessionaire fails to achieve COD in accordance with ARTICLE Article 15;
e) e. the Concessionaire has failed to make pay any payment to the Authority within the period specified in this Agreement;
f) f. an Escrow Default has occurred and the Concessionaire fails to cure the default within a Cure Period of 15 (fifteen) days;
g) g. a breach of any of the Project Agreements by the Concessionaire has caused a Material Adverse Effect;
h) h. the Concessionaire creates any Encumbrance in breach of this Agreement;
i) i. the Concessionaire repudiates this Agreement or otherwise takes any action or evidences or conveys an intention not to be bound by the Agreement;
j) j. a Change in Ownership has occurred in breach of the provisions of Article 5.4;
k) 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;
n) 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;
o) 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;
p) 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:
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;
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 COD; and
c. each of the Project Agreements remains in full force and effect;
q) 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;
r) 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;
s) the Concessionaire has failed to fulfil any obligation, for which failure, Termination has been specified in this Agreement; or
t) the Concessionaire commits a default in complying with any other provision of this Agreement if such default cause a Material Adverse Effect on the Authority.
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 30 (thirty) days to the Concessionaire 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.
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 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.of
Appears in 1 contract
Sources: Concession Agreement
Termination for Concessionaire Default. 25.1.1 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 90 30 (ninetythirty) 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 / Additional Bank Guarantee has been encashed encashed, as the case may be, and appropriated by the Authority in accordance with ARTICLE 9 Clause 9.2 and the Concessionaire fails to replenish or provide fresh Performance Security / Additional Bank Guarantee, as the case may be, within a Cure Period of 30 21 (thirtytwenty one) days;
bb. subsequent to replenishment or furnishing of fresh Performance Security / Additional Bank Guarantee, as the case may be, in accordance with Clause 9.2, the Concessionaire fails to cure the Concessionaire Default, for which whole or part of the Performance Security / Additional Bank Guarantee, as the case may be, was appropriated, within a cure period of 45 (forty five) days;
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;
c) d. COD does not occur within the period specified in Clause 12.3.2;
e. the Punch List items have not been completed within the period set forth in Clause 13.4.1;
f. the Concessionaire fails to undertake or complete the construction is in breach of the Mandatory Development Obligations in accordance with ARTICLE 12Maintenance Requirements or the Safety Requirements, as the case may be;
d) the Concessionaire fails to achieve COD in accordance with ARTICLE 15;
e) g. the Concessionaire has failed to make any payment to the Authority within the period Period specified in this Agreement;
f) an Escrow Default h. upon occurrence of a Financial Default, the Lenders’ Representative has occurred 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 a the Cure Period of 15 (fifteen) daysspecified hereinabove;
g) i. a breach of any of the Project Agreements by the Concessionaire has caused a Material Adverse Effect;
h) j. the Concessionaire creates any Encumbrance in breach of this Agreement;
i) k. the Concessionaire repudiates this Agreement or otherwise takes any action or evidences or conveys an intention not to be bound by the Agreement;
j) l. a Change in Ownership has occurred in breach of the provisions of Article 5.4Clause 5.3;
k) 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;
n) 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;
o) 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;
p) 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:
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;
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 COD; and
c. each of the Project Agreements remains in full force and effect;
q) 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;
r) 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;
s) the Concessionaire has failed to fulfil any obligation, for which failure, Termination has been specified in this Agreement; or
t) the Concessionaire commits a default in complying with any other provision of this Agreement if such default cause a Material Adverse Effect on the Authority.
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 30 (thirty) days to the Concessionaire 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.
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 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
Sources: Concession Agreement
Termination for Concessionaire Default. 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 90 (ninety) 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 has been encashed and appropriated in accordance with ARTICLE 9 and the Concessionaire fails to replenish or provide fresh Performance Security within a Cure Period of 30 (thirty) days;
b) the Concessionaire abandons or manifests intention to abandon the operation of the Project without the prior written consent of the Authority;
c) the Concessionaire fails to undertake or complete the construction of the Mandatory Development Obligations in accordance with ARTICLE 12;
d) 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;
f) an Escrow Default has occurred and the Concessionaire fails to cure the default within a Cure Period of 15 (fifteen) days;
g) a breach of any of the Project Agreements by the Concessionaire has caused a Material Adverse Effect;
h) the Concessionaire creates any Encumbrance in breach of this Agreement;
i) the Concessionaire repudiates this Agreement or otherwise takes any action or evidences or conveys an intention not to be bound by the Agreement;
j) a Change in Ownership has occurred in breach of the provisions of Article 5.45.5;
k) 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;
n) 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;
o) 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;
p) 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:
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;
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 COD; and
c. each of the Project Agreements remains in full force and effect;
q) 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;
r) 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;
s) the Concessionaire has failed to fulfil any obligation, for which failure, Termination has been specified in this Agreement; or
t) the Concessionaire commits a default in complying with any other provision of this Agreement if such default cause a Material Adverse Effect on the Authority.
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 30 (thirty) days to the Concessionaire 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.
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 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
Sources: Concession Agreement