Content Headings

Key Issues

Example clauses

Notes and References

Warranties of the Concessionaire

The Concessionaire represents and warrants to the Authority that:

(a)  it is duly organised, validly existing and in good standing under the laws of [jurisdiction]; 

(b)  it is a special purpose company set up solely for the purpose of implementing and operating the Project/Project Facility in accordance with the terms of this Agreement and that it will not during the subsistence of this Agreement undertake any other project or business activity unrelated to the Project; 

(c)  it has full power and authority to execute, deliver and perform its obligations under this Agreement and to carry out the transactions contemplated hereby; 

(d)  it has taken all necessary corporate and other action under Applicable Laws and its constitutional documents to authorize the execution, delivery and performance of this Agreement; 

(e)  it has the financial standing and capacity to undertake the Project; 

(f)  this Agreement constitutes its legal, valid and binding obligation enforceable against it in accordance with the terms hereof; 

(g)  it is subject to civil and commercial laws of [jurisdiction] with respect to this Agreement and it hereby expressly and irrevocably waives any immunity in any jurisdiction in respect thereof; 

(h)  the execution, delivery and performance of this Agreement will not conflict with, result in the breach of, constitute a default under or accelerate performance required by any of the terms of the Concessionaire's constitutional documents or of any member of the Consortium or any Applicable Laws or any covenant, agreement, understanding, decree or order to which it is a party or by which it or any of its properties or assets are bound or affected; 

(i)  there are no actions, suits, proceedings or investigations pending or to the Concessionaire's knowledge threatened against it at law or in equity before any court or before any other judicial, quasi judicial or other authority, the outcome of which may constitute Concessionaire Event of Default or which individually or in the aggregate may result in Material Adverse Effect; 

(j)  it has no knowledge of any violation or default with respect to any order, writ, injunction or any decree of any court or any legally binding order of any Government Authority which may result in Material Adverse Effect; 

(k)  it has complied with all Applicable Laws and has not been subject to any fines, penalties, injunctive relief or any other civil or criminal liabilities which in the aggregate have or may have Material Adverse Effect; 

(l)  subject to receipt by the Concessionaire from the Authority of the Termination Payment and any other amount due under any of the provisions of this Agreement, in the manner and to the extent provided for under the applicable provisions of this Agreement all rights and interests of the Concessionaire in and to the Project / Project Facility shall pass to and vest in the Authority on the Termination Date free and clear of all Encumbrances without any further act or deed on the part of the Concessionaire or the Authority; 

(m)  no representation or warranty by the Concessionaire contained herein or in any other document furnished by it to the Authority or to any Government Authority in relation to Applicable Permits contains or will contain any untrue statement of material fact or omits or will omit to state a material fact necessary to make such representation or warranty not misleading; and 

(n)  no bribe or illegal gratification has been paid or will be paid in cash or kind by or on behalf of the Concessionaire to any Person to procure the Concession. 

See SOPC Section 6.1, 6.2, 6.4 and 6.5.

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