Common use of Uninsurable Risks Clause in Contracts

Uninsurable Risks. 43.1. If a risk usually covered by the Concession Insurances in Schedule 14 (Concession Insurances) becomes Uninsurable, then the Concessionaire shall notify Transnet within 14 (fourteen) days of the risk becoming Uninsurable or the Concessionaire becoming aware that such risk shall become Uninsurable on the renewal of any Concession Insurance. Such notice shall include the Concessionaire’s proposals on what it reasonably considers appropriate to manage, mitigate and control the Uninsurable risk. 43.2. If the Parties agree, or it is determined in accordance with clause 62 (Dispute Resolution), that – 43.2.1. the risk is Uninsurable; 43.2.2. the risk being Uninsurable is not caused by the actions or omissions of the Concessionaire or a contractor of the Concessionaire; and 43.2.3. other service providers carrying on businesses similar to the Concession would cease to do so as a result of such Uninsurability, then the Parties shall meet to discuss and agree on the means by which the risk should be managed (including by way of self-insurance by either Transnet or the Concessionaire with an appropriate limit of liability). Pending determination thereof, the Uninsurable risk shall be at the risk of the Concessionaire. 43.3. The Concessionaire shall bear the onus of proving the circumstances in clauses 43.2.1 to 43.2.3 (inclusive). 43.4. If the requirements of clauses 43.1 and 43.2 are met - 43.4.1. this Agreement shall continue in force and effect; 43.4.2. on the occurrence of a Transnet owned risk (but only if that risk has continued to be Uninsurable) Transnet shall, at its election, either pay - 43.4.2.1. for the reinstatement of the damaged Concession Asset(s); or 43.4.2.2. the Termination Payment, if due, on the basis set out in clause 48 (Non Default Termination) and this Agreement will terminate as if for Force Majeure; 43.4.3. on the occurrence of a Concessionaire owned risk (but only if that risk has continued to be Uninsurable) the Concessionaire shall reinstate the damaged or destroyed assets up to an amount agreed pursuant to clause 43.2, and if that amount is insufficient to complete the reinstatement, then the Concessionaire, at its election, shall either - 43.4.3.1. make available and pay the shortfall required to complete the reinstatement balance; or 43.4.3.2. terminate this Agreement for force majeure as contemplated in clause 45 (Force Majeure), after paying to Transnet the total sum of the amount agreed to pursuant to clause 43.2, if same has not been applied if reinstatement. 43.5. Where a risk which was previously Uninsurable, ceases to be Uninsurable, the Concessionaire shall procure and maintain insurance in respect of that risk and the provisions of this Agreement shall apply in respect of that risk.