2.2.2  Content

The following Conditions Precedent, as a minimum, will usually be required to be satisfied by the private party (the Conditions Precedent selected to apply will depend on the nature of the project, structure of the consortium and any other specific government requirements):

(a)  delivery of executed copies (excluding execution by government) of all Project Contracts and major sub-contracts in a form and substance satisfactory to government and satisfaction of all Conditions Precedent to such documents;

(b)  delivery of certified copies of all finance documents duly executed, and evidence that all Conditions Precedent to funding have been satisfied (or waived) in accordance with the finance documents;

(c)  evidence that all duty payable in connection with entry into the Project Documents has been paid;

(d)  evidence of any authorisation (in form and substance acceptable to government) required by the private party, financiers and major sub-contractors to enter into the Project Contracts, major sub-contracts and financing agreements (as applicable);

(e)  effecting of required insurance policies and providing certified copies of those executed policies;

(f)  provision of any required corporate or consortium details; and

(g)  provision of a printed and electronic copy of the certified Base Case Financial Model together with an audit report acceptable to government.

Jurisdictions may require that a binding private tax ruling in relation to the operation of Division 250 of the Income Tax Assessment Act 1936 (Cth) and the Income Tax Assessment Act 1997 (Cth) be provided as a Condition Precedent. More specifically, jurisdictions may seek greater comfort around the areas of project financing and ownership structures.

Notwithstanding the above Conditions Precedent, in some jurisdictions, government will not execute the project agreement until all major sub-contracts have been executed. This is to ensure that government is not committed to the project before the private party is able to be committed.