(Excerpt of Clause 4.1. pertaining to 'Conditions Precendent' from the Model Concession Agreement for development of National Highways, is set out below)
4.1. Conditions Precedent
4.1.1. Save and except as expressly provided in Articles 4, 9, 10, 24, 34, 44 and 47, or unles the context otherwise requires, the respective rights and obligations of the Parties under this Agreement shall be subject to the satisfaction in full of the conditions precedent specified in this Clause 4.1 (the "Conditions Precedent").
4.1.2. The Concessionaire may, upon providing the Performance Security to the Government in accordance with Article 9, at any time after [90 (ninety)] days from the date of this Agreement or on an earlier day acceptable to the Government, by notice require the Government to satisfy any or all of the Conditions Precedent set forth in this Clause 4.1.2 within a period of 30 (thirty) days of the notice, or such longer period not exceeding 60 (sixty) days as may be specified therein, and the conditions precedent required to be satisfied by the Govenment shall be deemed to have been fulfilled when the Government shall have:
a) procured for the Concessionaire the Right of Way to the Site in accordance with the provisions of Clause 10.3.1;
b) issued the Fee Notification
c) [procured for the Concessionaire the Right of Way to *****;]1
d) [procured approval of the Railway Authorities in the form of a general arrangement drawing that would enable the Concessionaire to construct road over bridges/ under bridges at level crossings on the project Highway in accordance with the Specifications and Standards and subject to the terms and conditions specified in such approval; and]
e) [procured all Applicable Permits relating to environmental protection and conservation of the Site]:2
[Provided that the Government may from time to time by notice extend, for up to an aggregate of 6 (six) months, the period for procuring the approval set forth in Sub-clause (c) and/or Sub-clause (d) above and in that event the land to be covered by over bridges or the affected sections of the project Highway, as the case may be, shall be included in the Appendix referred to in Clause 10.3 and dealt with in accordance with the provisions thereof; and provided further that upon procurement of such approval, the Concessionaire shall be entitled to a period of 12 (twelve) months there from for completion of the over bridges. For the avoidance of doubt, the approval specified in Sub-clauses (c) and (d) above shall cease to be a Condition Precedent upon the extension of time under this Proviso.]
4.1.3. The Conditions Precedent required to be satisfied by the Concessionaire prior to the Appointed Date shall be deemed to have been fulfilled when the Concessionaire shall have:
a) provided Performance Security to the Government;
b) executed and procured execution of the Escrow Agreement;
c) executed and procured execution of the Substitution Agreement;
d) procured all the Applicable Permits specified in Schedule-E unconditionally or if subject to conditions then all such conditions required to be fulfilled by the date specified therein shall have been satisfied in full and such Applicable Permits are in full force and effect;
e) executed the Financing Agreements and delivered to the Government 3 (three) true copies thereof, duly attested by a Director of the Concessionaire;
f) delivered to the Government 3 (three) true copies of the Financial Package and the Financial Model, duly attested by a Director of the Concessionaire, along with 3 (three) soft copies of the Financial Model in MS Excel version or any substitute thereof, which is acceptable to the Senior Lenders;
g) delivered to the Government from {the Consortium Members, their respective} confirmation, in original, of the correctness of their representations and warranties setforth in Sub-clauses (k), (1) and (m) of clause 7.1 of this Agreement; and
h) delivered to the Government a legal opinion from the legal counsel of the Concessionaire with respect to the Authority of the Concessionaire to enter into this Agreement and the enforceability of the provisions thereof:
Provided that upon request in writing by the Concessionaire, the Government may, in its discretion, waive any of the Conditions Precedent set forth in this Clause 4.1.3. For the avoidance of doubt, the Government may, in its sole discretion, grant any waiver hereunder with such conditions as it may deem fit.
4.1.4. Each Party shall make all reasonable endeavours to satisfy the Conditions Precedent within the time stipulated and shall provide the other Party with such reasonable cooperation as may be required to assist that Party in satisfying the Conditions Precedent for which that Party is responsible.
4.1.5. The Parties shall notify each other in writing at least once a month on the progress made in satisfying the Conditions Precedent. Each Party shall promptly inform the other Party when any Condition Precedent for which it is responsible has been satisfied.
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1 If completion of construction on any part of the Site is considered critical for issue of Provisional/ Completion Certificate, such part shall be specified in this Sub-clause so that it does not form part of the Appendix referred to in Clause 10.3.1, on or after the Appointed Date
2 In projects where environmental clearance is restricted to small portions of the Site or to the felling of trees, this Condition Precedent may be deleted and such portions may be included, as necessary, in the Appendix specified in Clause 10.3.1. The guiding principle should be that the obligations of the Concessionaire should be predictable and not beyond its control