Content Headings

Key Issues

Example clauses

Notes and References

Conditions Precedent/ Delivery of Documents

Is it appropriate to have conditions precedent to the effectiveness of the agreement? A number of things may need to happen before a concession agreement can come into effect, for example necessary regulatory approvals or signing of other project agreements or documents. Nevertheless, a conditions precedent is relatively unusual for in a concession agreement. It is often for the signing and the financial close to be simultaneous. All the things that need to happen before or at the effectiveness of the agreement can happen before signing of the agreement (and therefore need not be included as things to be done in the agreement). The concession agreement is usually the subject of a condition precedent of other project agreements (for example a conditions precedent before the drawdown of a loan).

Alternative 1

On or prior to the execution of this agreement:

(a)  the Concessionaire shall deliver to the Authority the documents referred to in Part 1 of Schedule [schedule number] [Schedule to list Completion Documents to be provided by the Concessionaire] (unless the requirement to deliver any such document is waived by the Authority by written notice to the Concessionaire); and

(b)  the Concessionaire shall deliver to the Authority the documents referred to in Part 1 of Schedule [schedule number] [Schedule to list Completion Documents to be provided by the Concessionaire] (unless the requirement to deliver any such document is waived by the Concessionaire by written notice to the Authority).

Alternative 1 adapted from Department of Health (UK), Standard Form Project Agreement Index reference A1 Folder 1.

Alternative 2

The Concessionaire shall at its cost, expenses and risk make such financing arrangement as would be necessary to finance the cost of the Project and to meet Project Requirements and other obligations under this Agreement, in a timely manner. 

The Concessionaire shall achieve Financial Close on or before the Commencement Date and within 15 days thereof submit to the Authority one set each of the Equity Documents and the Financing Documents. 

Alternative 2 adapted from Concession Agreement for Colombo Kathunayake Expressway Project (note confidential), index reference A2, folder 1.