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Schedule 10


Schedule 10

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									Module 3 Template 10 Schedule 10
C:\Docstoc\Working\pdf\f7fd48f3-f7f9-4397-a8e0-482ad18d9e7e.doc                                                         2.

                                                                                                           Schedule 10

                                               Form of the Performance Bond and the Final Bond

                   Both the Performance Bond and the Final Bond shall be in the following form and


                                                                   [address of Guarantor]

                                                                  [Insert name of Institution]

                   ASSETS             AND          RECTIFICATION           AND    REMEDY         OF   DAMAGE   TO   THE


                   binds itself in favour of [insert name of institution] as Guarantor and co-principal
                   debtor in solidum for the due and proper performance and completion by [Private
                   Party] of its obligations in terms of the PPP Agreement dated [                        ] in respect of
                   [describe Project] ("the Agreement"), on the terms of this Bond.

                   1.      Definitions and Interpretations

                   1.1             In this Bond, unless inconsistent with the contents, words referring to :

                   1.1.1                   one gender include a reference to the other genders;

                   1.1.2                   the singular include the plural and vice versa;

                   1.1.3                   natural persons include artificial persons and vice versa.

                   1.2             If any period is referred to in the PPP Agreement by way of reference to a
                                   number of days, the days shall be reckoned exclusively of the first and
                                   inclusively of the last day unless the last day falls on a day which is not a
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                                   Business Day, in which case the day shall be the next succeeding Business

                   1.3             Any annexes to this Bond shall be deemed to form part of this Bond.

                   1.4             Any reference to legislation or a statute in this Bond shall be a reference to
                                   such legislation or statute as amended, varied or re-enacted from time to

                   1.5             Any reference in this Bond to another agreement shall be to such agreement
                                   as amended, supplemented, varied, novated or replaced from time to time in
                                   accordance with its terms and conditions.

                   1.6             Titles of clauses and schedules of and to this Bond are inserted for the sake
                                   of convenience only and shall not be used in respect of or in any way affect
                                   the interpretation of any provision of this Bond.

                   1.7             A reference in this Bond to any person shall be reference to such person’s
                                   permitted (in terms of this Bond) successor, transferee, statutory and/or

                   1.8             Terms defined in the PPP Agreement shall, unless defined in this Bond, bear
                                   the meaning assigned to them in the PPP Agreement when used in this Bond.

                   1.9             Save as otherwise expressly stated, or as the context otherwise requires, the
                                   words and expressions listed below shall, when used in this Bond or in any
                                   Addenda to this Bond, bear the meanings ascribed to them:

                   1.9.1                   "Private Party" – [insert name];

                   1.9.2                   "Bond" - this guarantee;

                   1.9.3                   "Guarantor" - [insert name];

                   1.9.4                   "Institution" – [insert name];

                   1.9.5                   "Obligations" - [EITHER: the obligations of the Private Party to
                                           undertake and performance the Works and the Operation and
                                           Maintenance in the amount of R[ ] during the Development Period and
                                           of R[ ] during the Project Term OR: the obligations of the Private Party
C:\Docstoc\Working\pdf\f7fd48f3-f7f9-4397-a8e0-482ad18d9e7e.doc                                                         4.

                                           to maintain the Project Assets and to rectify and remedy any damage to
                                           the environment by Private Party in the amount of R[... ...];

                   1.9.6                   "PPP Agreement" - the PPP Agreement entered into between the
                                           Institution and the Private Party for the time being on or about [... ...], in
                                           respect of [describe Project].

                   2.      Introduction

                   2.1             The Private Party has entered into the PPP Agreement with the Institution.

                   2.2             It is an obligation of the Private Party under the PPP Agreement that this
                                   Bond is given to the Institution. Accordingly, the Guarantor has agreed to
                                   guarantee as set out below the due and punctual performance by the Private
                                   Party of its Obligations to the Institution.

                   3.      Bond

                   3.1             Subject to the terms of this Bond, the Guarantor irrevocably and

                   3.1.1                   guarantees and undertakes that it shall pay such amount as may from
                                           time to time be demanded by the Institution to the account specified in
                                           the written demand referred to hereafter, within two Business Days of the
                                           Institution delivering a written notice demanding such payment from the
                                           Guarantor ("Demand") substantially in the form annexed to this
                                           guarantee, stating that the Private Party has failed to perform its
                                           obligations in terms of clause 9 of the PPP Agreement, a copy of which
                                           clause is attached to this Bond marked Annexure "A" for information;

                   3.1.2                   subject to the maximum amount of this Bond, the Guarantor agrees, as a
                                           separate independent obligation, to indemnify the Institution from time to
                                           time on demand against any loss, cost, claim, expense or liability of any
                                           kind incurred by the Institution as a result of the Private Party failing to
                                           perform duly and punctually its Obligations, whether or not such
                                           Obligations exist currently or are contemplated at the date of this Bond.

                   3.2             Save as otherwise stated herein, this Bond is a continuing guarantee and is to
                                   remain valid until all Obligations have been discharged in full to the Institution
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                                   (notwithstanding any fluctuation in, or temporary extension of such

                   3.3             This Bond may be terminated on 90 Business Days written notice given to
                                   and received by the Private Party and the Institution. During such period of 90
                                   Business Days:

                   3.3.1                   the Private Party may replace this Bond with a guarantee acceptable to
                                           the Institution; or

                   3.3.2                   the Institution may demand and receive from the Guarantor payment of
                                           all amounts not paid under this Bond.

                   3.4             This Bond shall be in addition to and not a substitution for any other rights
                                   which the Private Party may have under or by virtue of the PPP Agreement.

                   4.      Limitation

                           The liability of the Guarantor under this Bond shall be limited to the amount of the
                           Private Party’s outstanding Obligations from time to time.            Subject to such
                           aggregate limit, the rights of the Institution are cumulative and the Institution shall
                           be entitled to make partial and multiple demands under this Bond, from time to
                           time, in respect of partial and multiple performance by the Guarantor.
                           Notwithstanding the aforementioned, the aggregate liability of the Guarantor in
                           terms hereof is limited to R[………..]{amount in words}.

                   5.      Enforcement

                   5.1             The Guarantor warrants that it has a credit rating from [Standard & Poor,
                                   Local Currency Rating of at least BBB-] at the date of signature hereof.

                   5.2             The Institution shall be entitled to demand payment of the full amount
                                   guaranteed under this Bond and to enforce this Bond 15 days after the credit
                                   ratings of the Guarantor no longer satisfy the credit ratings detailed in clause
                                   6.1 if the Institution has not, within that 15 day period, advised the Guarantor
                                   that an acceptable substitute guarantor has been found. The Guarantor shall
                                   comply with such demand immediately.
C:\Docstoc\Working\pdf\f7fd48f3-f7f9-4397-a8e0-482ad18d9e7e.doc                                                         6.

                   5.3             The Institution shall be entitled to call up and enforce this Bond and the
                                   Guarantor shall comply with such calling up and enforcement within 2
                                   Business Days of receiving written notice of such calling up and enforcement.

                   6.      Preservation of the Bond

                   6.1             This Bond shall at all times be fully and immediately enforceable, despite the
                                   fact that:

                   6.1.1                   any intended security may not have been obtained or perfected or may
                                           have been released or may have ceased to be held for any other reason;

                   6.1.2                   the Institution may not have exercised any of its rights against the Private
                                           Party timeously or at all;

                   6.1.3                   the Institution may have elected any particular remedy against the
                                           Private Party to the exclusion of any other remedy;

                   6.1.4                   the basis of the Institution's arrangements with the Private Party may
                                           have altered;

                   6.1.5                   the Institution may have given extended terms or any other indulgence to
                                           the Private Party or may have accepted a part payment or other benefit
                                           in settlement or any other compromise in respect of the Private Party’s
                                           obligations or may have otherwise so released the Private Party whether
                                           wholly or partly (in which event the Guarantor shall remain indebted to
                                           the Institution as if those terms had not been given or that part payment,
                                           or other compromise or release had not been agreed to);

                   6.1.6                   the obligations of the Private Party may have been varied or novated,
                                           whether by agreement, operation of law or otherwise, in which event, the
                                           Institution may elect to hold the Guarantor liable for the obligations either
                                           as they existed before, or as they exist after, the variation or novation;

                   6.1.7                   the Private Party may have been placed in liquidation, judicial
                                           management or may become subject to any legal disability or to any law
                                           for the benefit or assistance of debtors and/or creditors;

                   6.1.8                   or despite:
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                                 any unenforceability, illegality or invalidity of any obligation of any
                                                  person (including, without limitation, the Private Party) under the
                                                  PPP Agreement or any other document or security derived in
                                                  connection with the PPP Agreement; or

                                 any other fact or circumstance which might otherwise have had the
                                                  effect of wholly or partially relieving the Guarantor of its obligations,
                                                  including any fact or circumstance which has arisen by reason of
                                                  any act or omission on the part of the Institution.

                   6.2             The Guarantor shall not be exonerated from any of its obligations hereunder
                                   for any reason, including (but not limited to) by an arrangement made by the
                                   Institution with the Private Party or by anything that the Institution may do or
                                   omit or neglect to do which, but for this provision, might exonerate the

                   6.3             The Guarantor shall not be exonerated from any of its obligations hereunder
                                   in the circumstances in which the Institution is entitled to, but does not,
                                   exercise any of its rights in terms of this Bond or the PPP Agreement.

                   6.4             The Guarantor authorises the Private Party to amend, add to or vary the
                                   terms of the PPP Agreement, other than in respect of the amounts of the

                   7.      Undertaking

                           Provided the Claim is made in accordance with the provisions of this Bond, the
                           Guarantor undertakes in respect of any claim arising out of this Bond, not to raise
                           the defence that there is no cause (ie reasonable basis) for the Institution's claim
                           for the granting of this Bond.

                   8.      Demand

                   8.1             The Institution shall not be obliged, before exercising any of its rights or
                                   powers or remedies conferred upon them by this Bond or by law, to:

                   8.1.1                   make any demand, other than a demand required to establish a claim in
                                           terms of the PPP Agreement, or to take any action or obtain judgment in
                                           any court against the Private Party;
C:\Docstoc\Working\pdf\f7fd48f3-f7f9-4397-a8e0-482ad18d9e7e.doc                                                      8.

                   8.1.2                   make or file any claim or proof in the winding-up or dissolution of the
                                           Private Party; or

                   8.1.3                   enforce or seek to enforce any other security as may have been granted
                                           to it by the Private Party, including any claim under the PPP Agreement,
                                           in respect of the Obligations of the Private Party.

                   9.      No Deductions

                   9.1             Each payment to be made by the Guarantor to the Institution shall be made
                                   free and clear of and without any withholding, deduction or setoff whatsoever,
                                   including without limitation for or on account of any taxes unless the
                                   Guarantor is required by law to make such a payment subject to the

                   9.2             If the Guarantor is required by law to make a deduction or withholding from
                                   such payment, the relevant sum payable by the Guarantor shall be increased
                                   to the extent necessary to ensure that, after the making of such deduction or
                                   withholding, the Institution receives and retains (free from any liability in
                                   respect of any such deduction or withholding) an amount equal to the sum
                                   which they would have received and so retained had not such deduction or
                                   withholding been made or required to be made.

                   9.3             Admissions and Acknowledgements

                                   Any admission or acknowledgement made by the Private Party or the
                                   liquidator, trustee, judicial manager, legal or other         representative of the
                                   Private Party, shall be binding on the Guarantor and shall have the same
                                   effect in all respects as if made by the Guarantor.

                   10. Judgment and Arbitration Awards against the Private Party

                           Any judgment or arbitration award in favour of the Institution against the Private
                           Party pursuant to a breach of the provisions as set out in Annexure A hereto shall,
                           despite the fact that the Guarantor may not have been joined in the proceedings
                           giving rise to the judgment or arbitration award, preclude the Guarantor from being
                           entitled in proceedings against the Guarantor to dispute the merits and/or quantum
                           of the claim in respect of which the judgment or award has been granted.
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                   11. Certificate of Indebtedness

                   11.1            A certificate reflecting any of the following:

                   11.1.1                  the existence of, and/or the amount of the indebtedness of the Guarantor
                                           to the Institution;

                   11.1.2                  the due date for payment of the indebtedness;

                   11.1.3                  the fact that the indebtedness due and owing has not been paid and
                                           otherwise discharged;

                   11.1.4                  and purporting to be signed by someone who is identified in the
                                           certificate or otherwise as the agent of the Institution,

                                   shall be prima facie proof of its contents until the contrary is proved.

                   12. Acknowledgement of Completeness

                           The Guarantor acknowledges that this Bond was complete in all essential respects
                           at the time of signature.

                   13. Waiver of Benefits

                   13.1            The Guarantor waives any defence to any claim by the Institution on the

                   13.1.1                  that no money, or less money than has been claimed, has been
                                           advanced to the Private Party (ie non numeratae pecuniae);

                   13.1.2                  that errors have been made in calculating the amount claimed (ie errore
                                           calculi); or

                   13.1.3                  of excussion.

                   14. Notices and Address for Service of Legal Documents

                   14.1            Any written notice to the Guarantor in connection with this Bond may be
                                   addressed to:

                                           physical address - [... ...]

                                           current fax number - [... ...]
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                                           and marked for the attention of [... ...]

                   14.2            Any notice to the Guarantor shall be deemed to have been duly given on
                                   delivery, if delivered to the Guarantor’s physical address in terms of this

                   14.3            The Guarantor chooses the physical address detailed in clause 16.1 as the
                                   address at which documents and legal proceedings in connection with this
                                   Bond may be served.

                   14.4            The Guarantor may change its address for this purpose to another physical
                                   address in the Republic of South Africa, by notice in writing.

                   15. No Representations

                           The Guarantor may not rely on any representation which allegedly induced that
                           Guarantor to enter into this Bond unless the representation is recorded in this

                   16. Variations, Cancellation and Waiver

                   16.1            No variation, addition to, deletion from or cancellation of this Bond, and no
                                   waiver of any right under this Bond, shall be effective unless reduced to
                                   writing and accepted by or on behalf of the Institution.

                   16.2            The expiry or termination of the PPP Agreement shall not prejudice the rights
                                   of the Institution to make a Claim under this Bond providing that the Claim
                                   arose prior to the expiry or termination of the PPP Agreement.

                   17. Indulgences

                           The grant of any indulgence by the Institution to the Guarantor under this Bond
                           shall not constitute a waiver of any right by the Institution or prevent or adversely
                           affect the exercise by the Institution of any existing or future right of the Institution.

                   18. Invalidity and Severability

                           If any of the provisions of this Bond becomes invalid, illegal or unenforceable for
                           any reason, the validity, legality and enforceability of the remaining provisions of
                           this Bond shall not be impaired or affected in any way by such invalidity, illegality
                           or unenforceability.
C:\Docstoc\Working\pdf\f7fd48f3-f7f9-4397-a8e0-482ad18d9e7e.doc                                                 11.

                   19. Delegation and Assignability

                   19.1            The Guarantor may not cede any of its rights or delegate any of its obligations
                                   under this Bond without the prior written consent of the Private Party and the

                   19.2            The Guarantor agrees that the Institution is entitled to cede its rights under
                                   this Bond, after written notice to the Guarantor.

                   20. Waiver of Immunity

                           The Guarantor hereby waives any immunity that it might otherwise have had in
                           respect of any legal or other action instituted by the Institution in respect of this

                   21. Applicable Law

                           This Bond is to be interpreted and implemented in accordance with the law of the
                           Republic of South Africa.

                   Signed at                                      on                            2011.

                   Witness:                                              for [insert name of Guarantor]

                   ………………………………………………                                    ……………………………………………..
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                                                                  Notice to Guarantor

                   From: [Institution]


                   Dated:[insert date]

                   Dear Sirs

                   [Final Bond dated [insert date] Number[... ...]] (the "Bond") issued on behalf of
                   [insert name of Private Party]

                   We refer to the above Bond issued by you. Terms defined in the Bond shall have the
                   same meaning when used in this notice.

                   We are entitled to call on this Bond under clause 12 of the PPP Agreement and we
                   demand payment of the sum of R[                    ] under the Bond.

                   Payment must be made without delay to ourselves by payment to [... ...] Bank
                   [...branch code...] [ account number…] in the name of [... ...] .

                   Yours faithfully,

                   [... ...]

                   for [Institution]

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