Funding Agreement template

202 Pages·2016·2.09 MB·English

Australian Renewable Energy Agency

Advancing Renewables Programme
Large-scale solar photovoltaics – competitive round

Funding Agreement number [insert]

Australian Renewable Energy Agency (ARENA)
[insert] (Recipient)

Template Version 2.0, May 2016

[Note: This is the standard template funding agreement for grants for projects under the Advancing
Renewables Programme (Large-scale solar photovoltaics – competitive round). It is subject to change,
including as a result of any future change that may occur in relation to the Programme or its Guidelines,
or as may arise in the context of any particular proposed project’s nature, structure or approach.]

Advancing Renewables Programme Funding Agreement: Large-scale solar photovoltaics – competitive round | Draft page 1
Details
Date
_________________/_________________/___________________
day month year
Parties
Name Australian Renewable Energy Agency (ABN 35 931 927 899), a body corporate
established under the ARENA Act.
Short form name ARENA

Name [insert name of Recipient] ([ACN/ABN] [insert ACN/ABN of Recipient])
Short form name Recipient

Background
A ARENA is undertaking the Advancing Renewables Programme: Large-Scale Solar Photovoltaics
– competitive round (Programme) to provide funding for activities involving renewable energy
technologies, including hybrid and enabling technologies, that support the Programme Outcomes.
B The Recipient applied for funding through the Programme to carry out the Project.
C ARENA is required by law to ensure accountability for the funding and accordingly the Recipient
is required to be accountable for all funding received.
D ARENA has agreed to provide funding to the Recipient for the purposes of the Project, subject to
the terms and conditions of this Agreement.
E Subject to the terms and conditions of this Agreement, the Recipient accepts the funding for the
purposes of the Project.
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Advancing Renewables Programme Funding Agreement
~*~
Details 2
General Conditions 8
Part 1 – Operation of the Agreement 8
1. Definitions and interpretation 8
1.1 Defined terms 8
1.2 Interpretation 8
2. Duration of Agreement 8
Part 2 – Funds 9
3. Use of Funds by the Recipient 9
3.1 What Funds can be used for 9
3.2 No additional Funds 9
4. Funding Conditions Precedent 9
4.1 Funding Conditions Precedent 9
4.2 Reporting on status of Funding Conditions Precedent 9
4.3 Notice of occurrence of ARENA Financial Close 9
4.4 Funding by ARENA at ARENA Financial Close 9
4.5 Waiver of Funding Conditions Precedent 9
4.6 Certified copies 9
5. Bank Account 10
5.1 Establishment and maintenance of the Bank Account 10
5.2 Bank Account signatories 10
5.3 ARENA’s rights in respect of the Bank Account 10
5.4 Interest 11
5.5 Withdrawals and transfers 11
Part 3 – Withdrawal of Funds and Debt Contributions 12
6. Project Financial Close 12
6.1 Obligation to achieve Project Financial Close 12
6.2 Reporting on status of Initial Withdrawal Conditions Precedent 12
6.3 Notice of occurrence of Project Financial Close and return of Bid Bonds 12
6.4 Waiver of Withdrawal Conditions Precedent 12
6.5 Certified copies 12
6.6 Failure to achieve Project Financial Close 12
6.7 Extension of the CP Satisfaction Date 12
7. Withdrawals 14
7.1 Withdrawals generally 14
7.2 Withdrawal by the Recipient 14
7.3 Withdrawal by ARENA 15
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7.4 Right to audit 15
8. Recipient and Debt Contributions 15
8.1 Recipient Contributions and Distribution Lock-Up 15
8.2 Debt Contributions 16
8.3 Increases to Contribution and additional contributors 17
Part 4 – Undertaking the Project 18
9. Representations and warranties 18
10. Undertakings 18
11. Knowledge sharing 18
11.1 Knowledge Sharing components 18
11.2 Knowledge Sharing Obligations 18
12. Evaluation 19
13. Independent Certifier 19
14. Audit and access 20
14.1 Right to conduct audits 20
14.2 Access by ARENA 20
14.3 Conduct of audit and access 20
14.4 Costs 21
14.5 Auditor-General and Information Officer 21
14.6 Auditor-General’s and/or Information Officer’s requirements 21
14.7 No reduction in responsibility 21
14.8 Specified Subcontractor requirements 21
14.9 No restriction 21
15. Books and records 21
15.1 Recipient to keep books and records 21
15.2 Costs 22
16. Freedom of Information 22
Part 5 – Force Majeure Events, Termination, Repayment and Change of
Control 23
17. Force Majeure Events 23
17.1 Recovery Plan 23
17.2 Requirements of Recovery Plan 23
17.3 Approval or rejection of Recovery Plan 23
17.4 Compliance with Approved Recovery Plan 23
17.5 Extension of Approved Recovery Period 23
17.6 Suspension of obligations 24
17.7 Force Majeure Event ceases 24
17.8 Timeframe elapses – Termination 24
18. Termination 25
18.1 Termination with compensation – pre-ARENA Financial Close 25
18.2 Termination with compensation – post-ARENA Financial Close 25
18.3 Termination for Event of Default 27
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18.4 Recipient to notify ARENA of certain breaches 28
18.5 After termination 28
18.6 ARENA rights on termination 28
18.7 Termination does not affect accrued rights 29
19. Repayment 29
19.1 Repayment generally 29
19.2 Repayment Notice 29
19.3 Interest 30
20. Change of control 30
20.1 Prohibition 30
20.2 Notice 30
Part 6 – Dispute resolution 31
21. Dispute resolution 31
21.1 No court proceedings 31
21.2 Notification 31
21.3 Parties to resolve Dispute 31
21.4 Appointment of mediator 31
21.5 Role of mediator 31
21.6 Conduct of mediation and obligations of parties 32
21.7 Confidentiality 32
21.8 Costs of negotiation and mediation 32
21.9 Arbitration 32
21.10 Breach of this clause 32
22. Disputes in relation to Commercially Sensitive Information 32
Part 7 – Other 34
23. ARENA’s liability 34
24. Replacement Personnel 34
25. GST and Taxes 34
25.1 Construction 34
25.2 Consideration GST exclusive 35
25.3 Payment of GST 35
25.4 Adjustment event 35
25.5 Reimbursements 35
25.6 Tax liability generally 36
26. Notices and other communications 36
26.1 Service of Notices 36
26.2 Effective on receipt 36
27. Indemnity 37
28. Acknowledgement and publicity 37
28.1 Acknowledgement of support 37
28.2 Publicity 38
28.3 Project Events 38
28.4 On site demonstrations 38
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29. Confidentiality and privacy 39
29.1 Prohibition on disclosure 39
29.2 Conditions of approval 39
29.3 Advisers and third parties 39
29.4 Exceptions to obligations 39
29.5 Obligation on disclosure 40
29.6 Additional confidential information 40
29.7 Period of confidentiality 40
29.8 No reduction in privacy obligations 40
29.9 Return of information 41
29.10 Retention of Confidential Information 41
29.11 Confidential Agreement Provisions 41
30. Protection of personal information 41
30.1 Application of this clause 41
30.2 Obligations 41
31. Survival 42
32. Miscellaneous 43
32.1 No variation of security 43
32.2 Amounts due to ARENA 43
32.3 Enforcement of ARENA Security 43
32.4 Ownership of Agreement 43
32.5 Variation 43
32.6 ARENA to act reasonably 43
32.7 Assignment and novation 44
32.8 Costs 44
32.9 Counterparts 44
32.10 No merger 44
32.11 Entire agreement 44
32.12 Further action 44
32.13 Severability 44
32.14 Waiver 44
32.15 Relationship 45
32.16 Governing law and jurisdiction 45
Schedule 1 – Definitions and interpretation 46
Schedule 2 – Agreement details 69
Schedule 3 – The Project and Funds 72
Schedule 4 – Conditions Precedent 73
Schedule 5 – Representations and Warranties 78
Schedule 6 – Undertakings 81
Schedule 7 – Events of Default 97
Schedule 8 – Reporting Requirements 98
Schedule 9 – Intellectual Property Rights 101
Schedule 10 – Knowledge Sharing Plan 104
Schedule 11 – Independent Certifier Agreement 125
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Schedule 12 – ARENA Tripartite Deed 165
Schedule 13 – Deed of Release 192
Schedule 14 – Compliance Certificate 199
Schedule 15 – Form of Withdrawal Request 200
Signing page 201

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General Conditions
Part 1 – Operation of the Agreement
1. Definitions and interpretation
1.1 Defined terms
Except where the contrary intention is expressed, capitalised terms used in this Agreement have
the meaning given to them in Part 1 of Schedule 1 (Definitions and interpretation).
1.2 Interpretation
The rules of interpretation set out in Part 2 of Schedule 1 (Definitions and interpretation) apply to
this Agreement.
2. Duration of Agreement
This Agreement begins on the Execution Date and, subject to clause 31, continues for the
Agreement Period.

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Part 2 – Funds
3. Use of Funds by the Recipient
3.1 What Funds can be used for
The Recipient must:
(a) spend or Legally Commit the Funds for the purposes of undertaking the Project and
purposes that are incidental to the Project, including to pay the costs contemplated by the
[Budget and the ]Financial Model;
[Note: A separate Budget may not be required depending on the detail of a Recipient’s
Financial Model. If a separate Budget is not required, the Financial Model must account
for expenditure to be incurred in complying with the Recipient’s obligations under the
Knowledge Sharing Plan.]
(b) use the Funds only for Eligible Expenditure; and
(c) spend the Funds only in accordance with the [Budget and the ]Financial Model.
3.2 No additional Funds
ARENA is not responsible for the provision of additional money to meet any expenditure in
excess of the Funds.
4. Funding Conditions Precedent
4.1 Funding Conditions Precedent
ARENA will not be required to deposit the Funds into the Bank Account in accordance with
clause 4.4 (Funding by ARENA at ARENA Financial Close) until each of the Funding Conditions
Precedent have been satisfied (or waived) in a form and substance satisfactory to it.
4.2 Reporting on status of Funding Conditions Precedent
Prior to ARENA Financial Close, the Recipient must provide a report to ARENA (in email
format) on the progressive satisfaction and status of the Funding Conditions Precedent on the first
day of each month from the Execution Date until ARENA Financial Close.
4.3 Notice of occurrence of ARENA Financial Close
On the day that ARENA Financial Close occurs, ARENA must promptly issue a Notice to the
Recipient confirming the occurrence of ARENA Financial Close.
4.4 Funding by ARENA at ARENA Financial Close
Within 10 Business Days of ARENA Financial Close, ARENA must pay the Funds to the
Recipient by deposit into the Bank Account.
4.5 Waiver of Funding Conditions Precedent
The Funding Conditions Precedent are for the benefit of ARENA and may only be waived in
writing by ARENA.
4.6 Certified copies
(a) Where a Funding Condition Precedent requires the Recipient to give ARENA a copy of a
document, that copy must be certified by a director or company secretary of the Recipient
to be a true and correct copy of the original document.
(b) Any certification provided under clause 4.6(a) must be made no more than 5 Business
Days before the date on which it is provided to ARENA.
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5. Bank Account
5.1 Establishment and maintenance of the Bank Account
(a) The Recipient must open and maintain an account in the Recipient’s name with the
Account Bank with the name listed in item 1 of Schedule 2 (Agreement details) which will
be subject to the ARENA Security and the Account Bank Side Deed.
(b) The Recipient must hold the Funds in the Bank Account in accordance with this
Agreement and the other ARENA Project Documents.
(c) The Recipient must ensure that the Bank Account is:
(i) established solely for the purposes of accounting for, and administering, the Funds
paid to the Recipient;
(ii) an account that bears a market rate of interest; and
(iii) separate from the Recipient’s other accounts.
5.2 Bank Account signatories
(a) The Bank Account must be opened on the terms that withdrawals of Funds (or any part of
the Funds) from the Bank Account may be done only with:
(i) prior to Project Financial Close, the signature of the authorised signatory of
ARENA;
(ii) following Project Financial Close (provided that no Event of Default is continuing
where ARENA has provided notice to the Account Bank as contemplated in clause
5.2(a)(iii)), the joint signatures of the authorised signatory of the Recipient and
ARENA;
(iii) where an Event of Default is continuing and where ARENA has provided notice to
the Account Bank that it is taking exclusive control of the operation of the Bank
Account, the signature of the authorised signatory of ARENA;
(iv) following the issue by ARENA of a Notice of Termination under clause 18.2(e)
and where ARENA has provided notice to the Account Bank that it is taking
exclusive control of the operation of the Bank Account, the signature of the
authorised signatory of ARENA; and
(v) following the issue by ARENA of a Notice of Termination under clause 18.2(c),
which has been notified to the Account Bank by the Recipient, the joint signatures
of the authorised signatory of the Recipient and the independent third party.
(b) Following the End Date or termination of this Agreement by ARENA, ARENA must
cause its authorised signatory to sign any withdrawals requested by the Recipient to pay
any funds which are Legally Committed before the End Date or date of termination of this
Agreement and not required to be repaid under clause 18.6(a).
(c) In the event that ARENA exercises its right to recover Funds pursuant to clauses 6.6(a)(ii)
or 19.1, ARENA may withdraw such Funds without obtaining the counter-signature of
authorised signatory nominated by the Recipient.
5.3 ARENA’s rights in respect of the Bank Account
ARENA is entitled to details relating to the use and operation of the Bank Account and the
Recipient must procure that, if requested by ARENA, a copy of the statements relating to the
Bank Account, and any other reasonable details relating to the Recipient’s use of the Bank
Account, are provided to ARENA.
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