33.2.1  Representations by the private party

In addition to the representations and warranties identified elsewhere in these CPs for Social Infrastructure, the private party will provide a series of representations and warranties for the benefit of government, including that:144

(a)  it has corporate status to enter into the transaction and is solvent;

(b)  it has the power to own its property and enter into the transaction;

(c)  all authorisations to enter into the transaction have been obtained;

(d)  all obligations in the Project Contracts are binding on it;

(e)  its compliance with the Project Contracts will not cause any contravention of Law, or of any authorisation or undertaking, or of its own constitution;

(f)  it is not acting as a trustee of a trust except to the extent agreed by government in writing (if the private party is acting as a trustee this representation and warranty will be removed and appropriate trustee representations, warranties and undertakings will be included in the project agreement);  

(g)  no proceedings are current or pending which have, or may have, a material adverse effect on:

(i)  its ability to perform its obligations;

(ii)  the rights of government under a Project Contract; or

(iii)  in some jurisdictions, the performance of, or cost of, performing the core government services;

(h)  all information given to government is true, accurate and not misleading;

(i)  no filings or taxes are needed to make the project agreement binding;

(j)  no default has occurred and is subsisting;

(k)  there are no security interests other than Permitted Security Interests over its property; and

(l)  government has been provided with all material documents relating to financing.  

The above list of representations and warranties is not an exhaustive list.

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144  See section 1.3.3 of Chapter 1 Contractual issues) regarding government warranties.