Dated 2017

[DRAFT: THIS IS NOT AN OFFER]

Liverpool City Region Combined Authority

- and -

[Recipient]

______

Grant Funding Agreement

______

This document is a draft and is provided for illustrative purposes only. The terms on which a Recipient is offered funding may be subject to change and will include project specific conditions.
THIS DEED is dated 2017

Parties

(1)LIVERPOOL CITY REGION COMBINED AUTHORITY of No1 Mann Island Liverpool L31BP (Funder); and

(2)[Name] a company registered in England & Wales (Company No. [number]) whose registered office is at [insert address](Recipient).

Background

(A)The Funder has agreed to provide the Grant from the Liverpool City Region Single Investment Fund (SIF) to the Recipient to assist it in carrying out the Project as set out in the Grant Application Form/Business Case.

(B)This Agreement sets out the terms and conditions on which the Grant is made by the Funder to the Recipient.

(C)These terms and conditions are intended to ensure that the Grant is used for the purpose for which it is awarded.

Agreed terms

1.Definitions and Interpretation

1.1 Definitions

In this Agreement the following terms shall have the following meanings:

Actual Costs: means, at any time, the actual costs and expenses incurred up to that time in relation to each item of Eligible Expenditure as determined by the Monitoring Surveyor.

Adverse Property Effect: means, in the reasonable opinion of the Funder, a material and adverse effect on (a)the value or marketability of the Property, (b)the ability of the Recipient to use the Property for the purposes for which it is intended to be used, or (c)the validity or enforceability of, or the effectiveness or ranking of the Security created or purported to be created by the relevant Finance Document in relation to the Property or the rights or remedies of the Funder under such Finance Document provided that the carrying out of the Project in accordance with the terms of this Agreement shall not itself constitute an Adverse Property Effect.

Agreed Financial Completion Date: means xxxxxbeing the date that all of the expenditure for the Project Activities will have been defrayed.

Agreed Project Completion Date: means the dates by which the respective Project Targets shall be achieved as follows:

(a)for Committed Job Target to be achieved by xxxxx and the jobs created are to be maintained for a period of 3 years from the date of creation; and

(b)for Developed Commercial Floor Space Target to be achieved by xxxxx.

Agreed Project Works Completion Date: means xxxxx(being the date by which the Works being delivered as part of the Project Activities shall have been certified as practically complete pursuant to the Building Contract.

Approved Use: means use of a Capital Asset as a xxxx within class xxxx of the Town and Country Planning (Use Classes) Order 1987 (as at the date of the Agreement).

Assumed Value: means the assumed value for the completed Project used in the calculation of the “viability gap” as confirmed as part of the SIF Appraisal.

Assurance Framework: means the Liverpool City Region Combined Authority Single Investment Fund Assurance Framework as amended and updated from time to time.

Authorisations: means the authorisations (including under all planning laws) required by law to undertake the Project.

Base Interest Rate: means the base rate of Barclays Bank plc (or in default the Bank of England) from time to time.

Budget: means a development appraisal prepared by or on behalf of the Recipient in respect of the Project and agreed with the Monitoring Surveyor and included as a schedule of agreed costs in the Monitoring Surveyors' initial report(s) including:

(a)Expenditure Profile and Eligible Expenditure, showing how those costs are to be incurred on a monthly basis during the construction programme and indicating the state that the Project is to reach on a monthly basis;

(b)a payment schedule for payments due under the Construction Documents;

(c)a detailed build up of all costs and a contract sum analysis; and

(d)legal, valuation, Monitoring Surveyor fees and any interest payable,

and including other income projected to be received by the Recipient in respect of the Property or the Project, as such development appraisal is amended, revised, replaced or updated at any time with the prior written consent of the Funder.

Building Contract: means the building contract to be entered between (1)Recipient and (2)the Building Contractor in connection with the Project in form and substance acceptable to the Funder and any other building contract relating to the Project entered into with the consent of the Funder from time to time.

Building Contractor: means xxxx or any other reputable building contractor appointed as a replacement building contractor in relation to the Project or the Property with the prior written consent of the Funder.

Business Day: means a day, other than a Saturday or Sunday on which banks are open for general business in London.

Calculation Date: means the earlier of:

(a)5 years after the Agreed Project Works Completion Date; or

(b)the date when the Recipient shall have completed the Disposal or Disposals of all its estate and interest in the Property.

Capital Asset: means any interest in land and buildings, any items of plant, machinery, equipment and other moveable or immoveable assets at the Property.

Certificate of Title: means a certificate of title in relation to the Property addressed to the Funder prepared by a firm of Solicitors acceptable to the Funder and in a form acceptable to the Funder.

Change of Control:means any change in the legal or beneficial ownership of the Recipient whereby more than 50% of the total voting rights in the Recipient is held by persons or entities different from the position at the date of this Agreement without the prior written consent of the Funder.

Construction Documents: means the Building Contract and the appointments of the professional team consultants for the Project.

Commencement Date: means xxxxx being the earliest date that expenditure incurred by the Recipient in relation to the Project can be Eligible Expenditure.

Committed Job Target: means xxx full time equivalent jobs in the Region either newly created or resulting from safeguarding existing jobs as a direct result of the delivery of the Project as more particularly set out in Schedule 8.

Contract Manager: means any officer who has been nominated by the Funder to represent it in such role for the purposes of this Agreement and any person appointed by such nominee as his representative.

Cost Overrun: means, at any time, the amount by which the aggregate of the Actual Costs and the Projected Further Costs exceeds the aggregate of the costs in the Budget (unless the Funder agrees otherwise in writing, without having regard to any amendments which are made to the costs in the Budget after the date on which the Funder approves the Budget).

Deed of Priority: means a deed of priority relating to the Legal Charge and any legal charge to be entered into with a third party funder in a form agreed between the parties (each acting reasonably and having due regard to the proposed terms of the Legal Charge).

Developed Commercial Floor Space Target: means the delivery target of xxxxm2of commercial floor space as more particulary set out in Schedule 8 or such other area of commercial floor space agreed between the parties.

Drawdown Longstop Date: means the date which is x months from and including the date of this Agreement.

Disposal: means the disposal, sale, transfer or the grant of any estate or interest in any Capital Asset including a Lease Disposal, where relevant in the context, and includes the creation of any charge, legal mortgage, debenture, lien or other encumbrance and any contract for a disposal and "Dispose" shall be construed accordingly.

Duty of Care Deed: means the duty of care deed to be entered into by the Monitoring Surveyor in favour of the Funder, in the form set out in Schedule 11.

Eligible Expenditure: means the expenditure set out in the profile to be provided by the Recipient pursuant to clause 3 and which is utilised in establishing the amount of Grant.

Environment:means all or any media of any nature including air, water and land (including buildings and other structures or erections in, on or under it, anything below the surface of land and the seabed, river beds and other land under any water, surface land and subsurface).

Environmental Law: means all applicable law and regulations relating to or concerning Environmental Matters.

Environmental Matters: means all or any matters relating to or concerning any aspect of the Environment and/or any hazardous material in respect of the Property or the Project.

Event of Default: means the occurrence of any event or circumstance of the type specified in clause15 (and an Event of Default is “continuing” while it has not been remedied or waived in writing by the Funder).

Excess Profit: means the payment calculated on the Calculation Date in accordance with clause21.

Expenditure Profile: means the information provided by the Recipient pursuant to clause 3 detailing the spend forecast for the carrying out of the Project Activities and defrayal of expenditure including the start date and the Agreed Financial Completion Date.

Final Actual Costs: means the Actual Costs at the time of completion of the Project;

Finance Documents: means this Agreement, any other document on which the Recipient depends concerning Financial Indebtedness in relation to the Project and the Legal Charge and any other document designated as such by the parties.

Financial Indebtedness: means any indebtedness for or in respect of:

(a)moneys borrowed;

(b)any amount raised under any credit facility or equivalent;

(c)any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument;

(d)the amount of any liability in respect of any lease or hire purchase contract which would, in accordance with GAAP, be treated as a finance or capital lease;

(e)receivables sold or discounted (other than any receivables to the extent they are sold on a nonrecourse basis);

(f)any amount raised under any other transaction (including any forward sale or purchase agreement) having the commercial effect of a borrowing;

(g)any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price (and, when calculating the value of any derivative transaction, only the marked to market value shall be taken into account);

(h)any counterindemnity obligation in respect of a guarantee, indemnity, bond, standby or documentary letter of credit or any other instrument issued by a bank or financial institution; and

(i)the amount of any liability in respect of any guarantee or indemnity for any of the items referred to in paragraphs(a) to (h) above.

GBER: means the General Block Exemption Regulation (EU) No 651/2014 of 17 June 2014.

Grant: means the capped sum of £xxxx, to be paid to the Recipient in accordance with this Agreement and based on Eligible Expenditure.

Grant Application Form: means the application form/ business case submitted by the Recipient to the Funder and set out in Schedule1.

Grant Claim: means a claim for Grant to be made using the claim form to be provided to the Recipient by the Funder.

Grant Drawdown Expenditure:means the items of Eligible Expenditure against which the Recipient can drawdown Grant as set out in Schedule 10.

Initial Tranche: means the first payment of the Grant.

Intellectual Property Rights: means all patents, copyrights and design rights (whether registered or not) and all applications for any of the foregoing and all rights of confidence and KnowHow however arising for their full term and any renewals and extensions.

Intervention Rate Condition: meansthe maximum amount of the Grant utilised does not exceed the Intervention Rate Percentage of the Eligible Expenditure.

Intervention Rate Percentage: means a percentage figure of the amount payable against Eligible Expenditure determined by the SIF Appraisal not exceeding -[]% of the [Final Actual Costs incurred in delivering the Project] [qualifying for [regional investment aid/ training aid etc] ][under Articles xx and xx of GBER]].

KnowHow: means information, data, knowhow or experience whether patentable or not and including but not limited to any technical and commercial information relating to research, design, development, manufacture, use or sale.

Lease: means a lease, tenancy agreement, licence to occupy or a management agreement.

Lease Disposal: means the grant of a Lease.

Legal Charge: means a legal charge over the Property in the form set out in Schedule7.

Longstop Date: means the date which is xmonths from and including the date of this Agreement.

Material Adverse Effect: means (in the reasonable opinion of the Funder taking into account all relevant information available to it and all relevant circumstances known to it) a material adverse effect on:

(a)the business, operations, property or financial condition of the Recipient; and/or

(b)the ability of the Recipient to meet its obligations under the Finance Documents; and/or

(c)the validity, legality or enforceability of any Finance Document or the rights or remedies of the Funder under any of the Finance Documents; and/or

(d)any other critical element of the Project including but not limited to nature, scale, ownership, cost or timing of the Project

Market Value: means in relation to the Property or any part thereof on the date of the Disposal or the Lease Disposal the "Market Value” as defined in the Practice Statement Number PS3.2 of the Royal Institute of Chartered Surveyors Appraisal and Valuation Standards as varied from time to time, excluding any Proceeds of Disposals and including the value of the reversionary interest in such of them as have been disposed of by making Planned Disposals BUT (in addition to the assumptions mentioned in that definition) on the following further assumptions:

(a)the Property or the relevant part thereof is sold subject to and with the benefit of any subsisting leases thereof or agreement therefore but otherwise sold free from all charges and other encumbrances;

(b)the Recipient has a good and marketable title to the Property or relevant part thereof;

(c)all necessary Authorisations for any buildings or other works on the Property have been obtained and the same can be lawfully used;

(d)any damage to the Property or buildings thereon caused by fire or any other incurable risk has been made good;

(e)the Property or the relevant part thereof has the benefit of all the easements and rights necessary for the beneficial use and occupation thereof.

Monitoring and Evaluation Plan: means the monitoring and evaluation plan in relation to the Project as described in Schedule3.

Monitoring Surveyor: means [insert details]

Notional Interest: means an amount equal to interest on Excess Profit calculated at [2]% above Base Interest Rate compounded with rests on the usual quarter days for the period from the Calculation Date to the relevant date for payment.

Planned Disposal: means a Lease Disposal of any Capital Asset by the Recipient which is intended as a planned step in the implementation of the Project and is agreed with the Funder and is in compliance with the Approved Use.

Planning Permissions: means planning permission references xxxx relating to the Property required to undertake the Project.

Practical Completion: means the date on which the certificate of Practical Completion has been issued in accordance with the Building Contract for the final part of the Project.

Proceeds: means the total amount of all proceeds received or receivable from a Disposal, prior to the Calculation Date or the amount of value of all consideration received or receivable from the Disposal of any Capital Asset or any part or parts thereof (other than rents, service charge and insurance premiums payable under leases).

Prohibited Act: means:

(i)offering, giving or agreeing to give to any servant of the Funder any gift or consideration of any kind as an inducement or reward for:

a.doing or not doing (or for having done or not having done) any act in relation to the obtaining or performance of this Agreement or any other contract with the Funder; or

b.showing or not showing favour or disfavour to any person in relation to this Agreement or any other contract with the Funder;

(ii)entering into this Agreement or any other contract with the Funder where a commission has been paid or has been agreed to be paid by the Recipient or on its behalf, or to its knowledge, unless before the relevant contract is entered into particulars of any such commission and of the terms and conditions of any such contract for the payment thereof have been disclosed in writing to the Funder;

(iii)committing any offence:

a.under the Bribery Act 2010 (and any subordinate legislation made under that Act from time to time together with any guidance or codes of practice issued);