Step-In Rights. 10.1. The Beneficiary has no authority to issue any direction or instruction to the Consultant in relation to the performance of the Consultant’s duties under the Appointment unless and until the Beneficiary has given notice under clauses 10.2 or 10.3 below. 10.2. The Consultant will not exercise or seek to exercise any right which it may have or which may become available to it, to terminate the Appointment or to treat it as having been terminated or repudiated, or to discontinue or suspend the performance of any duties or obligations to be performed by the Consultant under it, without first giving to the Beneficiary not less than 14 days written notice specifying the Consultant’s ground or grounds (the “Specified Grounds”) for terminating the Appointment or treating it as having been terminated or repudiated or discontinuing or suspending the performance of any duties to be performed by the Consultant and stating the amount (if any) of monies outstanding under the Appointment. The Consultant’s right to terminate the Appointment or treat it as having been repudiated or to discontinue or suspend performance shall cease if within such period of notice (and subject to clause 10.6 below) the Beneficiary shall give written notice to the Consultant requiring the Consultant to accept the instructions of the Beneficiary to the exclusion of the Client in respect of the Project upon the terms and conditions of the Appointment. 10.3. The Consultant agrees that if requested by the Beneficiary by notice in writing and subject to clause 10.6 below, he will accept the instructions of the Beneficiary or it’s appointee to the exclusion of the Client in respect of its duties under the Appointment upon the terms and the conditions of the Appointment and will if so requested enter into agreement whereby the Beneficiary is substituted for the Client under the Appointment. 10.4. The Client acknowledges that the Consultant will be entitled to rely on a notice given to the Consultant by the Beneficiary under clauses 10.2 or 10.3 as conclusive evidence that the Beneficiary has taken over from the Client the obligations and responsibilities of the Client towards the Consultant such that the Consultant should accept the instructions of the Beneficiary or its appointee to the exclusion of the Client. 10.5. Notwithstanding anything contained in this agreement and notwithstanding any payments which may be made by the Beneficiary to the Consultant, the Beneficiary will not be under any obligation to the Consultant nor will the Consultant have any claim or cause of action against the Beneficiary unless and until the Beneficiary has given written notice to the Consultant pursuant to clauses 10.2 or clause 10.3 of this agreement. 10.6. It shall be a condition of any notice given by the Beneficiary pursuant to clauses 10.2 or 10.3 that the Beneficiary or its appointee accepts liability for the performance of the Client’s obligations under the Appointment including the payment of fees and all other sums properly payable to the Consultant by the Client under the Appointment (save that the Beneficiary will in paying such sums be entitled to the same rights of set off and deductions as would have applied to the previous Client under the Appointment) and including the rectification of any outstanding breach or breaches by the Client so far as they have been included properly in the Consultant’s Specified Grounds and are capable of remedy by the Beneficiary. Upon the issue of any notice by the Beneficiary under clauses 10.2 or 10.3 the Appointment shall continue in full force and effect as if no right of termination on the part of the Consultant had arisen and the Consultant shall be liable to the Beneficiary or its appointee in lieu of its liability to the Client. If any notice given by the Beneficiary under clauses 10.2 or 10.3 requires the Consultant to accept the instructions of the Beneficiary’s appointee, the Beneficiary shall be liable to the Consultant as guarantor for its appointee in respect of the payment of all sums from time to time due to the Consultant from the Beneficiary’s appointee and in respect of all the appointee’s obligations arising pursuant to this agreement.]
Appears in 1 contract
Sources: Building Contract
Step-In Rights. 10.1. Consultant May Not Terminate or Discontinue [Note: for The Beneficiary has no authority University of Newcastle upon Tyne and funders/owner only]
3.1 The Consultant shall not exercise, or seek to issue exercise, any direction or instruction to right to:
3.1.1 terminate its employment under the Consultant in relation to the Professional Appointment; or
3.1.2 discontinue performance of the Services, for any reason (including any breach on the part of the Client) without giving the Beneficiary at least 20 Business Days' written notice of its intention to do so. Any notice from the Consultant shall specify the grounds for the Consultant’s duties 's proposed termination or discontinuance.
3.2 If the Professional Appointment allows the Consultant a shorter notice period for the exercise of a right referred to in clause 3.1, the notice period in the Professional Appointment shall be extended to take account of the notice period required under clause 3.1.
3.3 The Consultant's right to terminate its employment under the Appointment unless and until the Beneficiary has given notice under clauses 10.2 or 10.3 below.
10.2. The Consultant will not exercise or seek to exercise any right which it may have or which may become available to it, to terminate the Appointment or to treat it as having been terminated or repudiatedProfessional Appointment, or to discontinue or suspend the performance of any duties or obligations the Services, shall cease if, within the period referred to be performed by the Consultant under itin clause 3.1, without first giving to the Beneficiary not less than 14 days written gives notice specifying the Consultant’s ground or grounds (the “Specified Grounds”) for terminating the Appointment or treating it as having been terminated or repudiated or discontinuing or suspending the performance of any duties to be performed by the Consultant and stating the amount (if any) of monies outstanding under the Appointment. The Consultant’s right to terminate the Appointment or treat it as having been repudiated or to discontinue or suspend performance shall cease if within such period of notice (and subject to clause 10.6 below) the Beneficiary shall give written notice to the Consultant requiring the Consultant to accept the instructions of the Beneficiary to the exclusion of the Client in respect of the Project upon the terms and conditions of the Appointment.
10.3. The Consultant agrees that if requested by the Beneficiary by notice in writing and subject to clause 10.6 below, he will accept the instructions of the Beneficiary or it’s appointee to the exclusion of the Client in respect of its duties under the Appointment upon the terms and the conditions of the Appointment and will if so requested enter into agreement whereby the Beneficiary is substituted for the Client under the Appointment.
10.4. The Client acknowledges that the Consultant will be entitled to rely on a notice given to the Consultant by the Beneficiary under clauses 10.2 or 10.3 as conclusive evidence that the Beneficiary has taken over from the Client the obligations and responsibilities of the Client towards the Consultant such that the Consultant should accept the instructions of the Beneficiary or its appointee to the exclusion of the Client.
10.5. Notwithstanding anything contained in this agreement and notwithstanding any payments which may be made by the Beneficiary to the Consultant, copied to the Client:
3.3.1 requiring the Consultant not to terminate its employment or not to discontinue performance of the Services under the Professional Appointment;
3.3.2 acknowledging that the Beneficiary (or its nominee) will not be assume all the Client's obligations under any obligation to the Consultant nor will the Consultant have any claim or cause of action against the Beneficiary unless and until the Beneficiary has given written notice to the Consultant pursuant to clauses 10.2 or clause 10.3 of this agreement.Professional Appointment; and
10.6. It shall be a condition of any notice given by the Beneficiary pursuant to clauses 10.2 or 10.3 3.3.3 undertaking that the Beneficiary or its appointee accepts liability for nominee will pay to the performance of the Client’s obligations under the Appointment including the payment of fees Consultant:
3.3.3.1 any sums due and all other sums properly payable to the Consultant by the Client under the Professional Appointment (save in future; and
3.3.3.2 any sums then due and payable to the Consultant under the Professional Appointment that are unpaid.
3.4 If the Beneficiary will in paying such sums be entitled to (or its nominee) serves notice on the same rights Consultant under clause 3.3, then, from the date of set off and deductions as would have applied to service of the previous Client under notice, the Appointment) and including the rectification of any outstanding breach or breaches by the Client so far as they have been included properly in the Consultant’s Specified Grounds and are capable of remedy by the Beneficiary. Upon the issue of any notice by the Beneficiary under clauses 10.2 or 10.3 the Professional Appointment shall continue in full force and effect effect, as if no right of termination on it had been entered into between the part Consultant and the Beneficiary (to the exclusion of the Consultant had arisen and Client).
3.5 In complying with this clause 3, the Consultant shall be liable to Consultant:
3.5.1 does not waive any breach of the Beneficiary Professional Appointment or its appointee in lieu of its liability to default under the Professional Appointment by the Client. If any notice given by ; and
3.5.2 may exercise its right to terminate its employment under the Beneficiary under clauses 10.2 Professional Appointment, or 10.3 requires the Consultant to accept the instructions discontinue performance of the Beneficiary’s appointeeServices, after the Beneficiary shall be liable to the Consultant as guarantor for its appointee in respect expiry of the payment of all sums from time notice period referred to time due in clause 3.1, unless the Consultant's right to the Consultant from the Beneficiary’s appointee and in respect of all the appointee’s obligations arising pursuant to this agreementterminate or discontinue has ceased under clause 3.3.]
Appears in 1 contract
Sources: Minor Works Contract
Step-In Rights. 10.1. 9.1 The Beneficiary has no authority to issue any direction or instruction to the Consultant in relation to the performance of the Consultant’s duties under the Appointment unless and until the Beneficiary has given notice under clauses 10.2 or 10.3 below.
10.2. The Consultant Contractor will not exercise or seek to exercise any right which it may have be or which may become available to it, it to terminate or treat as terminated or repudiated the Appointment or to treat its employment under it as having been terminated or repudiated, or to discontinue or suspend the performance of any duties or obligations to be performed by under the Consultant under it, Appointment without first giving to the Beneficiary not less than 14 days written twenty-eight days’ prior notice specifying the ConsultantContractor’s ground or grounds (the “Specified Grounds”) for terminating or treating as terminated or repudiated the Appointment or treating its employment under it as having been terminated or repudiated or discontinuing or suspending the its performance of any duties to be performed by the Consultant Appointment and stating the amount (if any) of monies outstanding under the Appointment. The Consultant’s right to terminate the Appointment or treat it as having been repudiated or to discontinue or suspend performance shall cease if within Within such period of notice (and subject to clause 10.6 below) notice:
9.1.1 the Beneficiary shall give may given written notice to the Consultant requiring the Consultant to accept the instructions of Contractor that the Beneficiary will thenceforth become the employer under the Appointment to the exclusion of the Client Employer and thereupon such will be the case and the Agreement will be and remain in respect full force and effect notwithstanding any of the Project upon said grounds; and
9.1.2 if the terms and conditions Beneficiary has given such notice under clause 9.1.1 or under clause 9.3, the Beneficiary will as soon as practicable thereafter remedy any outstanding breach by the Employer (provided that where the notice is given pursuant to clause 9.1.1 rather than pursuant to clause 9.3 such breach has properly been included in the Consultant’s specified grounds under clause 9.1.1); and
9.1.3 if:
9.1.3.1 the Beneficiary has given such notice under clause 9.1.1 then from the date of the Appointment.Contractor’s notice; or
10.3. The Consultant agrees that if requested by 9.1.3.2 the Beneficiary by has given notice in writing and subject to under clause 10.6 below, he will accept 9.3 then from the instructions date of the Beneficiary’s notice the Beneficiary or it’s appointee will become responsible for all sums properly payable to the exclusion of the Client in respect of its duties Contractor under the Appointment upon and for the terms observance and the conditions performance of all of the other duties and obligations on the part of the employer to be observed and performed under the Appointment and will if so requested enter into agreement whereby accruing due after the service of such Contractor’s notice or Beneficiary’s notice (as applicable) but the Beneficiary is substituted for will in paying such sums be entitled to the Client same rights of set-off and deduction as would have applied to the employer under the Appointment.
10.4. The Client acknowledges that the Consultant will be entitled to rely on a notice given to the Consultant by the Beneficiary under clauses 10.2 or 10.3 as conclusive evidence that the Beneficiary has taken over from the Client the obligations and responsibilities of the Client towards the Consultant such that the Consultant should accept the instructions of the Beneficiary or its appointee to the exclusion of the Client.
10.5. 9.2 Notwithstanding anything contained in this agreement Deed and notwithstanding any payments which may be made by the Beneficiary to the Consultant, Contractor the Beneficiary will not be under any obligation to the Consultant Contractor nor will the Consultant Contractor have any claim or cause of action against the Beneficiary unless and until the Beneficiary has given written notice to the Consultant pursuant to clauses 10.2 Contractor under clause 9.1.1 or clause 10.3 of this agreement9.3.
10.6. It 9.3 Provided that the Appointment has not previously been terminated (and whether or not the Contractor shall be a condition of any have served notice given by on the Beneficiary pursuant to clauses 10.2 clause 9.
1.1) if the Beneficiary serves upon the Contractor a notice to do so, the Contractor shall thereafter accept the instructions of the Beneficiary to the exclusion of the Employer in respect of the Services upon the terms and conditions of the Appointment and the Beneficiary shall thenceforth become the employer under the Appointment to the exclusion of the Employer. The Contractor shall not be concerned or 10.3 required to enquire whether and shall be bound to assume that as between the Employer and the Beneficiary the circumstances have occurred permitting the Beneficiary to give notice under this clause 9.
9.4 If the employment of the Contractor under the Appointment is terminated before service of any notice under clause 9.1.1 or clause 9.3, then if required to do so by notice served by the Beneficiary not later than 12 weeks after the date of such termination, the Contractor shall enter into a new appointment with the Beneficiary or its appointee accepts liability for on the performance same terms as the Appointment but with such revisions as the Beneficiary shall reasonably require to reflect altered circumstances. Immediately upon the execution of such new appointment the Beneficiary shall pay to the Contractor an amount equal to the sum which, immediately before termination of the ClientContractor’s obligations under the Appointment including the payment of fees and all other sums properly payable employment, was owing to the Consultant Contractor by the Client under the Appointment (save that the Beneficiary will in paying such sums be entitled to the same rights of set off and deductions as would have applied to the previous Client Employer under the Appointment) .
9.5 The Contractor acting in accordance with the provisions of this clause 9 shall not by so doing incur any liability to the Employer.
9.6 The Employer agrees to the foregoing provisions of this clause 9 and including agrees to be bound by them.
9.7 The Beneficiary may by notice in writing to the rectification of any outstanding breach or breaches by the Client so far as they have been included properly in the Consultant’s Specified Grounds and are capable of remedy by the Beneficiary. Upon the issue of any notice by Contractor appoint another person to exercise its rights under this clause 9 subject to the Beneficiary under clauses 10.2 or 10.3 the Appointment shall continue in full force and effect as if no right of termination on the part of the Consultant had arisen and the Consultant shall be remaining liable to the Beneficiary or its appointee in lieu of its liability to the Client. If any notice given by the Beneficiary under clauses 10.2 or 10.3 requires the Consultant to accept the instructions of the Beneficiary’s appointee, the Beneficiary shall be liable to the Consultant Contractor as a guarantor for its appointee in respect of the payment its obligations under this Deed.
9.8 [Specify order of all sums from time to time due to the Consultant from the Beneficiary’s appointee and priority where more than one beneficiary has step-in respect of all the appointee’s obligations arising pursuant to this agreementrights.]] [Note: clause 9 to be included in warranties in favour of a Mortgagee or Purchaser only.]
Appears in 1 contract
Sources: Contractor Agreement
Step-In Rights. 10.1. 3.1 The Beneficiary Authority acknowledges that it has no authority to issue any direction or instruction to the Consultant Key Sub- Contractor in relation to the performance of the Consultant’s Key Sub-Contractor’ duties and obligations under the Appointment Key Sub- Contract (except this shall not apply to any notice issued by the Authority in respect of any breach of this Deed) unless and until the Beneficiary Authority has given notice under clauses 10.2 Clauses 3.4 or 10.3 below3.8.
10.2. 3.2 Subject to the provisions of Clause 3.5, which shall apply solely with effect from the commencement and during the course of any Suspension Period, the Authority has no liability to the Key Sub-Contractor in respect of sums due under the Key Sub-Contract unless and until the Authority has given notice under Clauses 3.4 or 3.8.
3.3 The Consultant will not exercise or seek Key Sub-Contractor and Contractor acknowledge and agree that in the circumstances set out in Clauses
3.4 The Key Sub-Contractor agrees that if it gives notice to exercise the Contractor that it is exercising any right which it may have or which may become available to it, to terminate or suspend the Appointment Key Sub-Contract or terminate its rights and obligations thereunder or to treat it as having been terminated or repudiated, or to discontinue or suspend the performance of any duties or obligations to be performed by the Consultant under it, without first giving to the Beneficiary not less than 14 days written notice specifying the Consultant’s ground or grounds (the “Specified Grounds”) for terminating the Appointment or treating it as having been terminated or repudiated or discontinuing or suspending the performance of any duties to be performed by the Consultant and stating the amount (if any) of monies outstanding under the Appointment. The Consultant’s right to terminate the Appointment or treat it same as having been repudiated or to discontinue or suspend performance by Contractor as a result of Contractor's breach of the Key Sub-Contract (a “Key Sub- Contract Termination Notice”) the Key Sub-Contractor shall cease if within at the same time serve a copy of such period notice on the Authority. Notwithstanding the service of notice a Key Sub-Contract Termination Notice, the Key Sub-Contract shall not terminate until the expiry of a further 90 Business Days (the “Suspension Period”). During the Suspension Period and subject to clause 10.6 belowClause 3.8 the Authority may give notice in writing (“Step-In Notice”) the Beneficiary shall give written notice to the Consultant Key Sub-Contractor requiring the Consultant Key Sub-Contractor to accept the instructions of the Beneficiary Authority to the exclusion of the Client Contractor in respect of the Project carrying out and completion of the Services upon the terms and conditions of the AppointmentKey Sub- Contract whereupon the Key Sub-Contract Termination Notice issued by the Key Sub-Contractor shall be suspended and, subject to the Authority's compliance with its obligations under Clause 3.5, revoked upon the satisfaction of such.
10.3. The Consultant agrees that if requested by the Beneficiary by notice in writing and subject to clause 10.6 below, he will accept the instructions of the Beneficiary or it’s appointee to the exclusion of the Client in respect of its duties under the Appointment upon the terms and the conditions of the Appointment and will if so requested enter into agreement whereby the Beneficiary is substituted for the Client under the Appointment.
10.4. The Client acknowledges 3.5 On condition that the Consultant will be entitled Key Sub-Contractor continues to rely on a notice given to the Consultant by the Beneficiary under clauses 10.2 or 10.3 as conclusive evidence that the Beneficiary has taken over from the Client the obligations and responsibilities of the Client towards the Consultant such that the Consultant should accept the instructions of the Beneficiary or comply with its appointee to the exclusion of the Client.
10.5. Notwithstanding anything contained in this agreement and notwithstanding any payments which may be made by the Beneficiary to the Consultant, the Beneficiary will not be under any obligation to the Consultant nor will the Consultant have any claim or cause of action against the Beneficiary unless and until the Beneficiary has given written notice to the Consultant pursuant to clauses 10.2 or clause 10.3 of this agreement.
10.6. It shall be a condition of any notice given by the Beneficiary pursuant to clauses 10.2 or 10.3 that the Beneficiary or its appointee accepts liability for the performance of the Client’s obligations under the Appointment including Key Sub-Contract the payment of fees and all other sums properly payable Authority shall pay to the Consultant by Key Sub-Contractor all monies falling due to it in return for the Client under the Appointment (save that the Beneficiary will in paying such sums be entitled provision of Services to the same rights Authority with effect from the commencement of set off and deductions as would have applied to the previous Client under Suspension Period until the Appointment) and including expiry of the rectification of any outstanding breach Suspension Period or breaches by the Client so far as they have been included properly in the Consultant’s Specified Grounds and are capable of remedy by the Beneficiary. Step-Out Date, whichever shall first occur.
3.6 Upon the issue of any notice Step-In Notice (or PA Step-In Notice) by the Beneficiary under clauses 10.2 or 10.3 Authority the Appointment Key Sub-Contract shall continue in full force and effect as if no right of termination on the part of the Consultant Key Sub-Contractor had arisen and the Consultant Key Sub-Contractor shall be liable to the Beneficiary or its appointee Authority in lieu of its liability to the Client. If Contractor and the Authority shall be liable to the Key Sub-Contractor in lieu of the Contractor’s liability to the Key Sub-Contractor during the Step-In Period.
3.7 A Key Sub-Contract Termination Notice served pursuant to the Key Sub-Contract shall only be effective to terminate the Key Sub-Contract or the Key Sub-Contractor's rights and obligations thereunder on the expiry of the Suspension Period and the Key Sub-Contractor agrees and undertakes that it shall not take any other or future step to suspend or terminate the Key Sub-Contract until the expiry of the Suspension Period.
3.8 The Key Sub-Contractor agrees that in the event of the occurrence of any circumstance giving rise to a right of termination or step-in for the Authority under the Project Agreement, following the expiry of any applicable rectification programme, the Key Sub-Contractor will if so required by notice in writing given by the Beneficiary under clauses 10.2 or 10.3 requires the Consultant Authority (a “PA Step-In Notice”) and, subject to Clause 3.5 and Clause 3.11, accept the instructions of the Beneficiary’s appointee, the Beneficiary shall be liable Authority or its appointee to the Consultant as guarantor for its appointee exclusion of Contractor in respect of the payment carrying out of the Services under the terms of the Key Sub-Contract. The Contractor acknowledges that the Key Sub-Contractor shall be entitled to rely on a notice given by the Authority under this Clause 3.8 as conclusive evidence for the purposes of this Deed of the occurrence of a Contractor Default (as such term is defined under the Project Agreement).
3.9 Within ten (10) Business Days of the date of service of:
(a) a Key Sub-Contract Termination Notice; or
(b) a PA Step-In Notice, the Key Sub-Contractor shall provide to the Authority details of which the Key Sub-Contractor has knowledge (or of which it ought reasonably to be aware) of all sums from time to time which are properly due and payable to the Consultant from Key Sub- Contractor under the Beneficiary’s Key Sub-Contract as at the date of such notice and all other obligations of the Contractor under the Key Sub-Contract which remain unperformed as of the date of such notice.
3.10 The Key Sub-Contractor shall inform the Authority as soon as reasonably practicable of any changes to or additions to the sums and obligations set out in Clause 3.9.
3.11 The giving of any Step-In Notice or PA Step-In Notice by the Authority shall oblige the Authority to accept liability for the performance of the Contractor's obligations under the Key Sub-Contract including payment of any monies outstanding at the date of such notice (and any amounts notified to the Authority under Clause 3.5 shall be payable to the Key Sub-Contractor within twenty (20) Business Days of notification) as if the Authority had been named as employer thereunder in place of Contractor (except to the extent that any such amounts, obligations or liabilities may be disputed in good faith by the Authority or the Authority's appointee in accordance with the dispute resolution procedure set out in Clause X of the Key Sub-Contract in which event, the Authority shall only pay such amounts, perform such obligations and in respect incur such liabilities found to be due as a result of all such procedures), provided that the appointee’s obligations arising pursuant to acceptance of liability under this agreementClause 3.11 by the Authority shall not prejudice any rights of the Authority under this Deed as against the Contractor and/or the Key Sub-Contractor.]
Appears in 1 contract
Sources: Direct Agreement
Step-In Rights. 10.1. The Beneficiary has no authority to issue any direction or instruction to the Consultant in relation to the performance of the Consultant’s duties under the Appointment unless and until the Beneficiary has given notice under clauses 10.2 or 10.3 below.
10.2. 10.1 The Consultant will not exercise or seek to exercise any right which it may have be or which may become available to it, it to terminate or treat as terminated or repudiated the Appointment or to treat its engagement under it as having been terminated or repudiated, or to discontinue or suspend the performance of any duties or obligations to be performed by under the Consultant under it, Appointment without first giving to the Beneficiary not less than 14 days twenty-eight days’ prior written notice specifying the Consultant’s ground or grounds (the “Specified Grounds”) for terminating or treating as terminated or repudiated the Appointment or treating its engagement under it as having been terminated or repudiated or discontinuing or suspending the its performance of any duties to be performed by the Consultant Appointment and stating the amount (if any) of monies outstanding under the Appointment. The Consultant’s right to terminate the Appointment or treat it as having been repudiated or to discontinue or suspend performance shall cease if within Within such period of notice (and subject to clause 10.6 below) notice:
10.1.1 the Beneficiary shall may give written notice to the Consultant requiring the Consultant to accept the instructions of that the Beneficiary shall become the client under the Appointment to the exclusion of the Client Contractor and, upon giving such notice, that will be the case and the Appointment will be and remain in respect full force and effect notwithstanding any of the Project upon grounds in the terms and conditions Consultant’s notice under clause 10.1; and
10.1.2 if the Beneficiary has given such notice under clause 10.1.1 or under clause 10.3, the Beneficiary will then as soon as practicable remedy any outstanding breach by the Contractor (provided that where the notice is given under clause 10.1.1 rather than under clause 10.3 such breach has properly been included in the Consultant’s specified grounds under
10.1.3 if:
10.1.3.1 the Beneficiary has given such notice under clause 10.1.1 then from the date of the Appointment.Consultant’s notice; or
10.3. The Consultant agrees that if requested by 10.1.3.2 the Beneficiary by has given notice in writing and subject to under clause 10.6 below, he will accept 10.3 then from the instructions date of the Beneficiary’s notice the Beneficiary or it’s appointee will, by clause 10.1.1, become responsible for all sums properly payable to the exclusion of the Client in respect of its duties Consultant under the Appointment upon and for the terms observance and the conditions performance of all of the other duties and obligations on the part of the client to be observed and performed under the Appointment and will if so requested enter into agreement whereby accruing due after the service of such Consultant’s notice or Beneficiary’s notice (as applicable) but the Beneficiary is substituted for will in paying such sums be entitled to the Client same rights of set-off and deduction as would have applied to the Contractor under the Appointment.
10.4. The Client acknowledges that the Consultant will be entitled to rely on a notice given to the Consultant by the Beneficiary under clauses 10.2 or 10.3 as conclusive evidence that the Beneficiary has taken over from the Client the obligations and responsibilities of the Client towards the Consultant such that the Consultant should accept the instructions of the Beneficiary or its appointee to the exclusion of the Client.
10.5. Notwithstanding anything contained in this agreement Deed and notwithstanding any payments which may be made by the Beneficiary to the Consultant, Consultant the Beneficiary will not be under any obligation to the Consultant nor will the Consultant have any claim or cause of action against the Beneficiary unless and until the Beneficiary has given written notice to the Consultant pursuant to clauses 10.2 under either clause 10.1.1 or clause 10.3 of this agreement10.3.
10.6. It shall be a condition of any notice given 10.3 Provided that the Appointment has not previously been terminated the Consultant further covenants with the Beneficiary that, if [the Finance Agreement is terminated by the Beneficiary pursuant to clauses 10.2 or 10.3 that and]4 the Beneficiary or its appointee accepts liability for the performance employment of the Client’s obligations Contractor under the Appointment including Contract is determined or if the payment of fees and all other sums properly payable to the Consultant by the Client under the Appointment (save that the Beneficiary will in paying such sums be entitled to the same rights of set off and deductions as would have applied to the previous Client under the Appointment) and including the rectification of any outstanding breach or breaches by the Client so far as they have been included properly in Contract is terminated, the Consultant’s Specified Grounds and are capable of remedy , if requested by the Beneficiary. Upon the issue of any , by written notice by the Beneficiary under clauses 10.2 or 10.3 the Appointment shall continue in full force and effect as if no right of termination on the part of the Consultant had arisen subject to clause 10.1.2 and the Consultant shall be liable to the Beneficiary or its appointee in lieu of its liability to the Client. If any notice given by the Beneficiary under clauses 10.2 or 10.3 requires the Consultant to clause 10.1.3, will accept the instructions of the Beneficiary’s appointee, the Beneficiary shall be liable to the Consultant as guarantor for its appointee exclusion of the Contractor in respect of the payment Works upon the terms and conditions of all sums from time to time due the Appointment. The Beneficiary shall then become the client under the Appointment to the exclusion of the Contractor and the Consultant from will, if so requested, enter into a novation agreement in order to substitute the Beneficiary’s appointee and in respect of all Beneficiary for the appointee’s obligations arising pursuant to this agreementContractor under the Appointment.]
Appears in 1 contract
Sources: Consultant Warranty
Step-In Rights. 10.1. The Beneficiary has no authority to issue any direction or instruction to (a) In the Consultant in relation to the performance event of the Consultant’s duties under Tenant having mortgaged or charged the Appointment unless benefit of this Lease to a Mortgagee (and until the Beneficiary Tenant has given notice under clauses 10.2 or 10.3 below.
10.2. The Consultant will notified the Landlord of the identity and address of the Mortgagee), the Landlord (the "Terminating Party") shall not exercise exercise, or seek to exercise exercise, any right which it may have to forfeit this Lease for any reason without giving the Mortgagee at least sixty (60) Working Days' notice of its intention to do so (except in the case of an emergency when this clause 2.4 shall not apply). Any such notice shall specify the grounds for the Landlord's proposed termination or which may become available discontinuance.
(b) The Landlord's rights to it, to terminate the Appointment or to treat it as having been terminated or repudiated, or to discontinue or suspend the performance of any duties or obligations to be performed by the Consultant under it, without first giving to the Beneficiary not less than 14 days written notice specifying the Consultant’s ground or grounds (the “Specified Grounds”) for terminating the Appointment or treating it as having been terminated or repudiated or discontinuing or suspending the performance of any duties to be performed by the Consultant and stating the amount (if any) of monies outstanding under the Appointment. The Consultant’s right to terminate the Appointment or treat it as having been repudiated or to discontinue or suspend performance forfeit this Lease shall cease if if, within such the period of notice (and subject referred to in clause 10.6 below) 2.4(a), the Beneficiary shall give written Mortgagee gives notice to the Consultant Landlord and the Tenant:
(i) requiring the Consultant Landlord not to accept terminate this Lease; and
(ii) acknowledging that the instructions Mortgagee or its nominee (which nominee shall satisfy the criteria of an assignee under clause 9) will assume the Beneficiary to Tenant's Obligations under this Lease; or
(iii) the exclusion of the Client in respect of the Project upon the terms and conditions of the Appointmentbreach has been rectified.
10.3. The Consultant agrees that if requested by (c) If the Beneficiary by Mortgagee serves notice in writing and subject to clause 10.6 below, he will accept on the instructions of the Beneficiary or it’s appointee to the exclusion of the Client in respect of its duties under the Appointment upon the terms Landlord and the conditions of Tenant under clause 2.4(b), then, from the Appointment and will if so requested enter into agreement whereby the Beneficiary is substituted for the Client under the Appointment.
10.4. The Client acknowledges date that the Consultant will be entitled to rely on a notice given to the Consultant by the Beneficiary under clauses 10.2 or 10.3 as conclusive evidence that the Beneficiary has taken over from the Client the obligations and responsibilities of the Client towards the Consultant such that the Consultant should accept the instructions of the Beneficiary Mortgagee (or its appointee nominee) enters into a deed of covenant with the Landlord covenanting to the exclusion of the Client.
10.5. Notwithstanding anything contained in this agreement and notwithstanding any payments which may be made by the Beneficiary to the Consultant, the Beneficiary will not be under any obligation to the Consultant nor will the Consultant have any claim or cause of action against the Beneficiary unless and until the Beneficiary has given written notice to the Consultant pursuant to clauses 10.2 or clause 10.3 comply with terms of this agreement.
10.6. It shall be Lease (such deed in a condition of any notice given by form agreed between the Beneficiary pursuant to clauses 10.2 or 10.3 that Landlord and the Beneficiary Mortgagee (or its appointee accepts liability for the performance of the Client’s obligations under the Appointment including the payment of fees nominee) both acting reasonably and all other sums properly payable to the Consultant by the Client under the Appointment (save that the Beneficiary will in paying such sums be entitled to the same rights of set off and deductions as would have applied to the previous Client under the Appointment) and including the rectification of any outstanding breach or breaches by the Client so far as they have been included properly in the Consultant’s Specified Grounds and are capable of remedy by the Beneficiary. Upon the issue of any notice by the Beneficiary under clauses 10.2 or 10.3 the Appointment without delay), this Lease shall continue in full force and effect effect, as it if no right of termination on had been entered into between the part Landlord and the Mortgagee (or its nominee as applicable), to the exclusion of the Consultant had arisen and Tenant.
(d) The Landlord may exercise any right to forfeit this Lease after the Consultant shall be liable expiry of the notice period referred to in clause 2.4(b), unless the Beneficiary deed of covenant has been provided by the Mortgagee (or its appointee nominee) in lieu of its liability to the Client. If any notice given by the Beneficiary under clauses 10.2 or 10.3 requires the Consultant to accept the instructions of the Beneficiary’s appointee, the Beneficiary shall be liable to the Consultant as guarantor for its appointee in respect of the payment of all sums from time to time due to the Consultant from the Beneficiary’s appointee and in respect of all the appointee’s obligations arising pursuant to this agreementaccordance with clause 2.4(c).]
Appears in 1 contract
Sources: Lease
Step-In Rights. 10.1. The Beneficiary has no authority CONSULTANT MAY NOT TERMINATE OR DISCONTINUE
3.1 Subject to issue clause 3.5, the Sub-Consultant shall not exercise, or seek to exercise, any direction or instruction to right to:
(a) terminate its employment under the Consultant in relation to the Sub-Contract; or
(b) discontinue performance of the Services, for any reason (including any breach on the part of the Consultant) without giving the Beneficiary at least ten Business Days' written notice of its intention to do so. Any notice from the Sub-Consultant shall specify the grounds for the Sub-Consultant’s duties proposed termination or discontinuance.
3.2 The Sub-Consultant's right to terminate its employment under the Appointment unless and until the Beneficiary has given notice under clauses 10.2 or 10.3 below.
10.2. The Consultant will not exercise or seek to exercise any right which it may have or which may become available to it, to terminate the Appointment or to treat it as having been terminated or repudiatedSub-Contract, or to discontinue or suspend the performance of any duties or obligations the Services, shall cease if, within the period referred to be performed by in clause 3.1, the Consultant under it, without first giving Beneficiary gives notice to the Sub-Consultant, copied to the Consultant:
(a) requiring the Sub-Consultant not to terminate its employment or not to discontinue performance of the Services under the Sub-Contract;
(b) acknowledging that the Beneficiary not less than 14 days written notice specifying (or its nominee) will assume all the Consultant’s ground or grounds (the “Specified Grounds”) for terminating the Appointment or treating it as having been terminated or repudiated or discontinuing or suspending the performance of any duties to be performed by the Consultant and stating the amount (if any) of monies outstanding obligations under the Appointment. The Consultant’s right to terminate the Appointment or treat it as having been repudiated or to discontinue or suspend performance shall cease if within such period of notice Sub-Contract; and
(and subject to clause 10.6 belowc) the Beneficiary shall give written notice to the Consultant requiring the Consultant to accept the instructions of the Beneficiary to the exclusion of the Client in respect of the Project upon the terms and conditions of the Appointment.
10.3. The Consultant agrees that if requested by the Beneficiary by notice in writing and subject to clause 10.6 below, he will accept the instructions of the Beneficiary or it’s appointee to the exclusion of the Client in respect of its duties under the Appointment upon the terms and the conditions of the Appointment and will if so requested enter into agreement whereby the Beneficiary is substituted for the Client under the Appointment.
10.4. The Client acknowledges that the Consultant will be entitled to rely on a notice given to the Consultant by the Beneficiary under clauses 10.2 or 10.3 as conclusive evidence that the Beneficiary has taken over from the Client the obligations and responsibilities of the Client towards the Consultant such that the Consultant should accept the instructions of the Beneficiary or its appointee to the exclusion of the Client.
10.5. Notwithstanding anything contained in this agreement and notwithstanding any payments which may be made by the Beneficiary to the Consultant, the Beneficiary will not be under any obligation to the Consultant nor will the Consultant have any claim or cause of action against the Beneficiary unless and until the Beneficiary has given written notice to the Consultant pursuant to clauses 10.2 or clause 10.3 of this agreement.
10.6. It shall be a condition of any notice given by the Beneficiary pursuant to clauses 10.2 or 10.3 undertaking that the Beneficiary or its appointee accepts liability for nominee will pay to the performance of the Client’s obligations under the Appointment including the payment of fees Sub-Consultant:
(i) any sums due and all other sums properly payable to the Sub-Consultant by the Client under the Appointment Sub-Contract in future; and
(save ii) any sums then due and payable to the Sub-Consultant under the Sub-Contract that are unpaid.
3.3 If the Beneficiary will in paying such sums be entitled to (or its nominee) serves notice on the same rights Consultant under clause 3.3, then, from the date of set off and deductions as would have applied to service of the previous Client under notice, the Appointment) and including the rectification of any outstanding breach or breaches by the Client so far as they have been included properly in the Consultant’s Specified Grounds and are capable of remedy by the Beneficiary. Upon the issue of any notice by the Beneficiary under clauses 10.2 or 10.3 the Appointment Sub-Contract shall continue in full force and effect effect, as if no right of termination on it had been entered into between the part Sub-Consultant and the Beneficiary (to the exclusion of the Consultant had arisen and Consultant).
3.4 In complying with clause 3, the Consultant shall be liable to Sub-Consultant
(a) does not waive any breach of the Beneficiary Sub-Contract or its appointee in lieu of its liability to default under the Client. If any notice given Sub-Contract by the Beneficiary Consultant; and
(b) may exercise its right to terminate its employment under clauses 10.2 the Sub-Contract, or 10.3 requires the Consultant to accept the instructions discontinue performance of the Beneficiary’s appointeeServices, after the Beneficiary shall be liable to the Consultant as guarantor for its appointee in respect expiry of the payment of all sums from time notice period referred to time due in clause 3.1, unless the Sub-Consultant's right to the Consultant from the Beneficiary’s appointee and in respect of all the appointee’s obligations arising pursuant to this agreementterminate or discontinue has ceased under clause 3.2.]
Appears in 1 contract
Sources: Framework Agreement
Step-In Rights. 10.1. The Beneficiary has no authority to issue any direction or instruction Sub-Contractor warrants to the Consultant in relation to the performance of the Consultant’s duties Beneficiary that it shall not terminate nor treat as terminated its employment under the Appointment unless and until the Beneficiary has given notice under clauses 10.2 or 10.3 below.
10.2. The Consultant will not exercise or seek to exercise any right which it may have or which may become available to it, to terminate the Appointment or to treat it as having been terminated or repudiated, or to discontinue or suspend the performance of any duties or obligations to be performed by the Consultant under it, Sub-Contract without first giving to the Beneficiary not less than 14 days written twenty eight (28) days’ prior notice of the Sub-Contractor’s intention to do so, specifying the Consultant’s ground or grounds (for so doing. If the “Specified Grounds”) for terminating Beneficiary serves on the Appointment or treating it Sub-Contractor a notice in accordance with clause 4.3, the Sub-Contractor shall not terminate nor treat as having been terminated or repudiated or discontinuing or suspending the performance of any duties to be performed by the Consultant and stating the amount (if any) of monies outstanding its employment under the AppointmentSub-Contract but service of such notice shall not prejudice any other right or remedy the Sub-Contractor may have under or in connection with the Sub-Contract. The Consultant’s right to terminate Unless the Appointment or treat it as having been repudiated or to discontinue or suspend performance employment of the Sub-Contractor under the Sub-Contract shall cease if within such period of notice have terminated previously (and subject whether or not the Sub-Contractor shall have served notice on the Beneficiary pursuant to clause 10.6 below4.1) if the Beneficiary shall give written serves upon the Sub-Contractor a notice to do so, the Consultant requiring the Consultant to accept the instructions of the Beneficiary to the exclusion of the Client in respect of the Project upon the terms and conditions of the Appointment.
10.3. The Consultant agrees that if requested by the Beneficiary by notice in writing and subject to clause 10.6 below, he will accept the instructions of the Beneficiary or it’s appointee to the exclusion of the Client in respect of its duties under the Appointment upon the terms and the conditions of the Appointment and will if so requested enter into agreement whereby the Beneficiary is substituted for the Client under the Appointment.
10.4. The Client acknowledges that the Consultant will be entitled to rely on a notice given to the Consultant by the Beneficiary under clauses 10.2 or 10.3 as conclusive evidence that the Beneficiary has taken over from the Client the obligations and responsibilities of the Client towards the Consultant such that the Consultant should Sub-Contractor shall thereafter accept the instructions of the Beneficiary or its appointee to the exclusion of the Client.
10.5Contractor under and in connection with the Sub-Contract. Notwithstanding anything contained in this agreement As against the Contractor and notwithstanding any payments which may the Beneficiary the Sub-Contractor shall be made entitled and obliged to rely upon and to comply with such notice served by the Beneficiary to under clause 4.3 and shall not make any enquiry into the Consultant, entitlement of the Beneficiary will not be under any obligation to the Consultant nor will the Consultant have any claim or cause of action as against the Beneficiary unless and until Contractor to serve such notice. As from the Beneficiary has given written date of service of notice to the Consultant pursuant to clauses 10.2 or under clause 10.3 of this agreement.
10.6. It shall be a condition of any notice given by the Beneficiary pursuant to clauses 10.2 or 10.3 that 4.3, the Beneficiary or its appointee accepts liability shall assume all the rights and perform all the obligations of the Contractor under the Sub-Contract, provided that this shall not affect or derogate from any right of action the Contractor may have against the Sub-Contractor in respect of any breach of duty of the Sub-Contractor under or in connection with the Sub-Contract happening prior to the date of service of notice by the Beneficiary under clause 4.3. Within twenty one (21) days after serving notice under clause 4.3 or clause 4.9 the Beneficiary shall pay to the Sub-Contractor an amount equal to the sum then owing to the Sub-Contractor under the Sub-Contract for the Sub-Contractor’s services. If the employment of the Sub-Contractor under the Sub-Contract is terminated before service of any notice under clause 4.3, then if required to do so by notice served by the Beneficiary not later than twelve (12) weeks after the date of such termination, the Sub-Contractor shall enter into a new contract with the Beneficiary or its appointee for the performance of the Clientsub-contracted services on the same terms as the Sub-Contract but with such revisions as the Beneficiary shall reasonably require to reflect the altered circumstances. Forthwith upon the execution of such new contract, the Beneficiary shall pay to the Sub-Contractor an amount equal to the sum which, immediately before termination of the Sub-Contractor’s obligations employment, was owing to the Sub-Contractor by the Contractor under the Appointment including Sub-Contract in respect of the sub-contracted services delivered and which remains unpaid. Upon payment by the Beneficiary in accordance with clause 4.6 or 4.7 of fees and all other sums properly payable an amount equal to the Consultant by relevant sum owing from the Client under Contractor, the Appointment (save that Sub-Contractor shall assign to the Beneficiary will all the Sub-Contractor’s rights against the Contractor in paying respect of such sums be entitled unpaid sum, and shall pay to the Beneficiary any of the same rights of set off and deductions as would have applied to subsequently received by it from the previous Client under Contractor. The Sub-Contractor further covenants with the Appointment) and including Beneficiary that if the rectification of any outstanding breach or breaches by the Client so far as they have been included properly in the Consultant’s Specified Grounds and are capable of remedy Agreement is terminated by the Beneficiary. Upon , the issue of any notice Sub-Contractor, if requested by the Beneficiary under clauses 10.2 or 10.3 by notice in writing and subject to clause 4.6, will accept the Appointment shall continue in full force and effect as if no right instructions of termination on the part of the Consultant had arisen and the Consultant shall be liable to the Beneficiary or its appointee in lieu of its liability to the Client. If any notice given by the Beneficiary under clauses 10.2 or 10.3 requires the Consultant to accept the instructions exclusion of the Beneficiary’s appointee, the Beneficiary shall be liable to the Consultant as guarantor for its appointee Contractor in respect of the payment sub-contracted services upon the terms and conditions of all sums from time to time due to the Consultant from Sub-Contract and will if so requested enter into a novation agreement whereby the Beneficiary’s appointee and in respect of all Beneficiary is substituted for the appointee’s obligations arising pursuant to this agreementContractor under the Sub-Contract.]
Appears in 1 contract
Sources: District Heating Agreement
Step-In Rights. 10.1. 3.1 The Beneficiary Authority acknowledges that it has no authority to issue any direction or instruction to the Consultant Key Sub-Contractor in relation to the performance of the Consultant’s Key Sub-Contractor’ duties and obligations under the Appointment Key Sub-Contract (except this shall not apply to any notice issued by the Authority in respect of any breach of this Deed) unless and until the Beneficiary Authority has given notice under clauses 10.2 Clauses 3.4 or 10.3 below3.8.
10.2. 3.2 Subject to the provisions of Clause 3.5, which shall apply solely with effect from the commencement and during the course of any Suspension Period, the Authority has no liability to the Key Sub- Contractor in respect of sums due under the Key Sub-Contract unless and until the Authority has given notice under Clauses 3.4 or 3.8.
3.3 The Consultant will not exercise Key Sub-Contractor and Contractor acknowledge and agree that in the circumstances set out in Clauses 3.4 or seek 3.8 the Authority shall be entitled to exercise enforce against the Key Sub-Contractor to the exclusion of the Contractor the terms of the Key Sub-Contract during the Step-In Period as if the Authority had been named as the employer under the Key Sub-Contract in place of the Contractor.
3.4 The Key Sub-Contractor agrees that if it gives notice to the Contractor that it is exercising any right which it may have or which may become available to it, to terminate or suspend the Appointment Key Sub-Contract or terminate its rights and obligations thereunder or to treat it as having been terminated or repudiated, or to discontinue or suspend the performance of any duties or obligations to be performed by the Consultant under it, without first giving to the Beneficiary not less than 14 days written notice specifying the Consultant’s ground or grounds (the “Specified Grounds”) for terminating the Appointment or treating it as having been terminated or repudiated or discontinuing or suspending the performance of any duties to be performed by the Consultant and stating the amount (if any) of monies outstanding under the Appointment. The Consultant’s right to terminate the Appointment or treat it same as having been repudiated or to discontinue or suspend performance by Contractor as a result of Contractor's breach of the Key Sub-Contract (a “Key Sub-Contract Termination Notice”) the Key Sub-Contractor shall cease if within at the same time serve a copy of such period notice on the Authority. Notwithstanding the service of notice a Key Sub-Contract Termination Notice, the Key Sub-Contract shall not terminate until the expiry of a further 90 Business Days (the “Suspension Period”). During the Suspension Period and subject to clause 10.6 belowClause 3.8 the Authority may give notice in writing (“Step-In Notice”) the Beneficiary shall give written notice to the Consultant Key Sub-Contractor requiring the Consultant Key Sub-Contractor to accept the instructions of the Beneficiary Authority to the exclusion of the Client Contractor in respect of the Project carrying out and completion of the Services upon the terms and conditions of the AppointmentKey Sub-Contract whereupon the Key Sub-Contract Termination Notice issued by the Key Sub-Contractor shall be suspended and, subject to the Authority's compliance with its obligations under Clause 3.5, revoked upon the satisfaction of such.
10.3. The Consultant agrees that if requested by the Beneficiary by notice in writing and subject to clause 10.6 below, he will accept the instructions of the Beneficiary or it’s appointee to the exclusion of the Client in respect of its duties under the Appointment upon the terms and the conditions of the Appointment and will if so requested enter into agreement whereby the Beneficiary is substituted for the Client under the Appointment.
10.4. The Client acknowledges 3.5 On condition that the Consultant will be entitled Key Sub-Contractor continues to rely on a notice given to the Consultant by the Beneficiary under clauses 10.2 or 10.3 as conclusive evidence that the Beneficiary has taken over from the Client the obligations and responsibilities of the Client towards the Consultant such that the Consultant should accept the instructions of the Beneficiary or comply with its appointee to the exclusion of the Client.
10.5. Notwithstanding anything contained in this agreement and notwithstanding any payments which may be made by the Beneficiary to the Consultant, the Beneficiary will not be under any obligation to the Consultant nor will the Consultant have any claim or cause of action against the Beneficiary unless and until the Beneficiary has given written notice to the Consultant pursuant to clauses 10.2 or clause 10.3 of this agreement.
10.6. It shall be a condition of any notice given by the Beneficiary pursuant to clauses 10.2 or 10.3 that the Beneficiary or its appointee accepts liability for the performance of the Client’s obligations under the Appointment including Key Sub- Contract the payment of fees and all other sums properly payable Authority shall pay to the Consultant by Key Sub-Contractor all monies falling due to it in return for the Client under the Appointment (save that the Beneficiary will in paying such sums be entitled provision of Services to the same rights Authority with effect from the commencement of set off and deductions as would have applied to the previous Client under Suspension Period until the Appointment) and including expiry of the rectification of any outstanding breach Suspension Period or breaches by the Client so far as they have been included properly in the Consultant’s Specified Grounds and are capable of remedy by the Beneficiary. Step-Out Date, whichever shall first occur.
3.6 Upon the issue of any notice Step-In Notice (or PA Step-In Notice) by the Beneficiary under clauses 10.2 or 10.3 Authority the Appointment Key Sub-Contract shall continue in full force and effect as if no right of termination on the part of the Consultant Key Sub-Contractor had arisen and the Consultant Key Sub-Contractor shall be liable to the Beneficiary or its appointee Authority in lieu of its liability to the Client. If Contractor and the Authority shall be liable to the Key Sub-Contractor in lieu of the Contractor’s liability to the Key Sub-Contractor during the Step-In Period.
3.7 A Key Sub-Contract Termination Notice served pursuant to the Key Sub-Contract shall only be effective to terminate the Key Sub-Contract or the Key Sub-Contractor's rights and obligations thereunder on the expiry of the Suspension Period and the Key Sub-Contractor agrees and undertakes that it shall not take any other or future step to suspend or terminate the Key Sub-Contract until the expiry of the Suspension Period.
3.8 The Key Sub-Contractor agrees that in the event of the occurrence of any circumstance giving rise to a right of termination or step-in for the Authority under the Project Agreement, following the expiry of any applicable rectification programme, the Key Sub-Contractor will if so required by notice in writing given by the Beneficiary under clauses 10.2 or 10.3 requires the Consultant Authority (a “PA Step-In Notice”) and, subject to Clause 3.5 and Clause 3.11, accept the instructions of the Beneficiary’s appointee, the Beneficiary shall be liable Authority or its appointee to the Consultant as guarantor for its appointee exclusion of Contractor in respect of the payment carrying out of the Services under the terms of the Key Sub-Contract. The Contractor acknowledges that the Key Sub-Contractor shall be entitled to rely on a notice given by the Authority under this Clause 3.8 as conclusive evidence for the purposes of this Deed of the occurrence of a Contractor Default (as such term is defined under the Project Agreement).
3.9 Within ten (10) Business Days of the date of service of:
(a) a Key Sub-Contract Termination Notice; or
(b) a PA Step-In Notice, the Key Sub-Contractor shall provide to the Authority details of which the Key Sub-Contractor has knowledge (or of which it ought reasonably to be aware) of all sums from time to time which are properly due and payable to the Consultant from Key Sub-Contractor under the Beneficiary’s Key Sub-Contract as at the date of such notice and all other obligations of the Contractor under the Key Sub-Contract which remain unperformed as of the date of such notice.
3.10 The Key Sub-Contractor shall inform the Authority as soon as reasonably practicable of any changes to or additions to the sums and obligations set out in Clause 3.9.
3.11 The giving of any Step-In Notice or PA Step-In Notice by the Authority shall oblige the Authority to accept liability for the performance of the Contractor's obligations under the Key Sub-Contract including payment of any monies outstanding at the date of such notice (and any amounts notified to the Authority under Clause 3.5 shall be payable to the Key Sub-Contractor within twenty (20) Business Days of notification) as if the Authority had been named as employer thereunder in place of Contractor (except to the extent that any such amounts, obligations or liabilities may be disputed in good faith by the Authority or the Authority's appointee in accordance with the dispute resolution procedure set out in Clause X of the Key Sub-Contract in which event, the Authority shall only pay such amounts, perform such obligations and in respect incur such liabilities found to be due as a result of all such procedures), provided that the appointee’s obligations arising pursuant to acceptance of liability under this agreementClause 3.11 by the Authority shall not prejudice any rights of the Authority under this Deed as against the Contractor and/or the Key Sub-Contractor.]
Appears in 1 contract
Sources: Direct Agreement
Step-In Rights. 10.1. 3.1 The Beneficiary Authority acknowledges that it has no authority to issue any direction or instruction to the Consultant Key Sub-Contractor in relation to the performance of the Consultant’s Key Sub-Contractor’ duties and obligations under the Appointment Key Sub-Contract (except this shall not apply to any notice issued by the Authority in respect of any breach of this Deed) unless and until the Beneficiary Authority has given notice under clauses 10.2 Clauses 3.4 or 10.3 below3.8.
10.2. 3.2 Subject to the provisions of Clause 3.5, which shall apply solely with effect from the commencement and during the course of any Suspension Period, the Authority has no liability to the Key Sub- Contractor in respect of sums due under the Key Sub-Contract unless and until the Authority has given notice under Clauses 3.4 or 3.8.
3.3 The Consultant will not exercise Key Sub-Contractor and Contractor acknowledge and agree that in the circumstances set out in Clauses 3.4 or seek 3.8 the Authority shall be entitled to exercise enforce against the Key Sub-Contractor to the exclusion of the Contractor the terms of the Key Sub-Contract during the Step-In Period as if the Authority had been named as the [employer] under the Key Sub-Contract in place of the Contractor.
3.4 The Key Sub-Contractor agrees that if it gives notice to the Contractor that it is exercising any right which it may have or which may become available to it, to terminate or suspend the Appointment Key Sub-Contract or terminate its rights and obligations thereunder or to treat it as having been terminated or repudiated, or to discontinue or suspend the performance of any duties or obligations to be performed by the Consultant under it, without first giving to the Beneficiary not less than 14 days written notice specifying the Consultant’s ground or grounds (the “Specified Grounds”) for terminating the Appointment or treating it as having been terminated or repudiated or discontinuing or suspending the performance of any duties to be performed by the Consultant and stating the amount (if any) of monies outstanding under the Appointment. The Consultant’s right to terminate the Appointment or treat it same as having been repudiated or to discontinue or suspend performance by Contractor as a result of Contractor's breach of the Key Sub-Contract (a “Key Sub-Contract Termination Notice”) the Key Sub-Contractor shall cease if within at the same time serve a copy of such period notice on the Authority. Notwithstanding the service of notice a Key Sub-Contract Termination Notice, the Key Sub-Contract shall not terminate until the expiry of a further 90 Business Days (the “Suspension Period”). During the Suspension Period and subject to clause 10.6 belowClause 3.8 the Authority may give notice in writing (“Step-In Notice”) the Beneficiary shall give written notice to the Consultant Key Sub-Contractor requiring the Consultant Key Sub-Contractor to accept the instructions of the Beneficiary Authority to the exclusion of the Client Contractor in respect of the Project carrying out and completion of the Services upon the terms and conditions of the AppointmentKey Sub-Contract whereupon the Key Sub-Contract Termination Notice issued by the Key Sub- Contractor shall be suspended and, subject to the Authority's compliance with its obligations under Clause 3.5, revoked upon the satisfaction of such.
10.3. The Consultant agrees that if requested by the Beneficiary by notice in writing and subject to clause 10.6 below, he will accept the instructions of the Beneficiary or it’s appointee to the exclusion of the Client in respect of its duties under the Appointment upon the terms and the conditions of the Appointment and will if so requested enter into agreement whereby the Beneficiary is substituted for the Client under the Appointment.
10.4. The Client acknowledges 3.5 On condition that the Consultant will be entitled Key Sub-Contractor continues to rely on a notice given to the Consultant by the Beneficiary under clauses 10.2 or 10.3 as conclusive evidence that the Beneficiary has taken over from the Client the obligations and responsibilities of the Client towards the Consultant such that the Consultant should accept the instructions of the Beneficiary or comply with its appointee to the exclusion of the Client.
10.5. Notwithstanding anything contained in this agreement and notwithstanding any payments which may be made by the Beneficiary to the Consultant, the Beneficiary will not be under any obligation to the Consultant nor will the Consultant have any claim or cause of action against the Beneficiary unless and until the Beneficiary has given written notice to the Consultant pursuant to clauses 10.2 or clause 10.3 of this agreement.
10.6. It shall be a condition of any notice given by the Beneficiary pursuant to clauses 10.2 or 10.3 that the Beneficiary or its appointee accepts liability for the performance of the Client’s obligations under the Appointment including Key Sub-Contract the payment of fees and all other sums properly payable Authority shall pay to the Consultant by Key Sub-Contractor all monies falling due to it in return for the Client under the Appointment (save that the Beneficiary will in paying such sums be entitled provision of Services to the same rights Authority with effect from the commencement of set off and deductions as would have applied to the previous Client under Suspension Period until the Appointment) and including expiry of the rectification of any outstanding breach Suspension Period or breaches by the Client so far as they have been included properly in the Consultant’s Specified Grounds and are capable of remedy by the Beneficiary. Step-Out Date, whichever shall first occur.
3.6 Upon the issue of any notice Step-In Notice (or PA Step-In Notice) by the Beneficiary under clauses 10.2 or 10.3 Authority the Appointment Key Sub-Contract shall continue in full force and effect as if no right of termination on the part of the Consultant Key Sub-Contractor had arisen and the Consultant Key Sub-Contractor shall be liable to the Beneficiary or its appointee Authority in lieu of its liability to the Client. If any notice given by Contractor and the Beneficiary under clauses 10.2 or 10.3 requires the Consultant to accept the instructions of the Beneficiary’s appointee, the Beneficiary Authority shall be liable to the Consultant as guarantor for its appointee Key Sub-Contractor in respect lieu of the payment of all sums from time to time due Contractor’s liability to the Consultant from Key Sub-Contractor during the Beneficiary’s appointee and in respect of all the appointee’s obligations arising pursuant to this agreementStep-In Period.]
Appears in 1 contract
Sources: Direct Agreement