Draft agreement regarding obligation to construct and connect to the grid an electricity production plant, Kriegers Flak, in the Baltic Sea
8. Choice of law and legal venue
This Demand Guarantee shall be governed by Danish law, and the ordinary courts of Copenhagen shall be proper venue.
Date ……….
………
Signature of Guarantor
Appendix 1.2
Model Parent Company Guarantee
1. Principal/Guarantee amount
At the request and expense of [insert the name of the Concessionaire, CVR no. (business reg.
no.), address, etc.] (the Concessionaire), [insert the name of the parent company, CVR no.
(business reg. no.), address, etc.] (the Guarantor), hereby confirms to provide an irrevocable and unconditional guarantee to the Danish Energy Agency (Energistyrelsen) in the amount of DKK [x] ([complete in letters] Danish Kroner).
2. Background for the Guarantee
The amount shall serve as full security for the payment of a penalty for defective performance which the Concessionaire might become liable to pay pursuant to the Concession Agreement of [xx. xx] 2016 with any subsequent amendments regarding the obligation to construct and connect to the grid an electric power generating plant offshore with internal collection grid, Kriegers Flak, in the Baltic Sea.
3. Effective date of the Guarantee This Guarantee shall apply from today’s date.
4. Payment under the Guarantee
The Guarantee amount shall be paid to the Danish Energy Agency upon the first written demand for payment to the Guarantor stating that the Danish Energy Agency is entitled to the amount demanded pursuant the Concession Agreement mentioned in point 2 above.
The Guarantee shall be paid on demand without examination or other documentation of the legitimacy of the demand. Payment shall take place no later than seven calendar days after receipt of the demand for payment from the Danish Energy Agency.
If the demand for payment is not met, irrespective of the reason, the Guarantor shall be liable to pay default interest from 20 days after the date the demand for payment was made until payment takes place.
The size of the default interest shall be determined in accordance with section 5 of the Interest on Overdue Payments Act.
5. Expiry (release) of the Guarantee
This Guarantee shall be valid until the Danish Energy Agency informs the Guarantor in writing that the Guarantee has been released. If the Guarantee is partially released, the Guarantee shall remain valid to cover the amount which has not been released.
The Danish Energy Agency shall release the guarantee on one of the two dates, whichever comes first:
a) No later than one month after the Concessionaire has documented that the Concessionaire, after award of the concession, has paid costs of at least DKK 1,000,000,000 (i.e. DKK one billion) VAT included.
b) When the first kWh from the first turbine has been supplied to the collective grid As an alternative to a full release of the guarantee, the Concessionaire is entitled to release 150,000,000 million DKK (write one hundred and fifty million Danish kroner) of the guarantee within one month after the Concessionaire has documented that the Concessionaire after the award of the concession has incurred costs of at least 700,000,000 DKK (write seven hundred million Danish kroner) incl. VAT.
The Concessionaire is entitled to have released further 150,000,000 DKK (write one hundred and fifty million Danish kroner) of the guarantee by no later than one month after, the
Concessionaire has documented, that the Concessionaire after the award of the concession has incurred costs of at least 850,000,000 DKK (write eight hundred and fifty million Danish kroner) incl. VAT.
The remainder of the guarantee may at any time be released, when either 1 billion DKK (writes one billion Danish kroner) incl. VAT has been incurred, or when the first kWh from the first turbine is delivered to the collective grid.
The Concessionaire shall issue a declaration from a state-authorised or registered public accountant to document that the costs under points 3.5 and 3.6 have been incurred in planning, project design and construction of the Kriegers Flak electricity production plant. The costs may include both internal and external documented costs.
It is not sufficient, that the costs have been accrued; they shall also have been paid.
The Danish Energy Agency is entitled to demand further documentation for costs paid as a condition for releasing the demand guarantee.
If the Danish Energy Agency has requested further documentation for costs paid as a condition for releasing the Demand Guarantee, the Danish Energy Agency shall not be obliged to release the Guarantee until one month after the additional documentation has been received.
The Guarantee shall be returned to the Guarantor with an endorsement of release as soon as the Guarantee has been released in full.
6. Transfer
The Guarantor accepts the right of the Danish Energy Agency pursuant to the Concession Agreement mentioned in point 2 to transfer its rights and obligations under this Concession Agreement to another public institution or any institution or private entity ultimately controlled (controlled in this provision is defined in accordance with the International Accounting Standard (IAS 27) issued by the International Accounting Standards Board (IASB)) by the Danish State or another Danish public authority or mainly financed by public funds, if the public tasks hitherto performed by the Danish Energy Agency or if the public tasks covered by the Concession Agreement are transferred, in whole or in part, to any of the mentioned parties.
7. Choice of law and legal venue
This Demand Guarantee shall be governed by Danish law, and the ordinary courts of Copenhagen shall be proper venue.
Date ……….
………
Signature of Guarantor
Appendix 1.3.