Big Digital Energy, Inc 8-K, filed Oct 22, 2021
Big Digital Energy, Inc. (BGDE)
About this 8-K
Big Digital Energy, Inc filed this 8-K on October 22, 2021.
Items reported
- Item 1.01: Entered into a material agreement
- Item 8.01: Other events
- Item 9.01: Financial statements and exhibits
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
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Item 1.01 Entry into a Material Definitive Agreement
On October 22, 2021, MIG No. 1 Pty Ltd (“MIG”), an Australian subsidiary of Mawson Infrastructure Group Inc. (the “Company”), entered into an electricity supply and sale agreement (“Electricity Supply Agreement”) with Cape Byron Management Pty Ltd (“CBM”) to enable the Company to operate its first Australian bitcoin mining site (“Australian Site”). CBM is a subsidiary of Quinbrook Infrastructure Partners Pty Ltd.
The main terms of the Electricity Supply Agreement include:
| ● | Certain conditions precedent to be satisfied as outlined in clause 2 of the Electricity Supply Agreement. It is currently contemplated that all condition precedent will be satisfied by January 2022; |
| ● | CBM is to complete all infrastructure works for the Australian Site (at its cost) at agreed times. Liquidated damages of $9,375 per day for each Modular Data Centre that is not generated by the date set out in clause 7.1 of the agreement must be paid by CBM to MIG for any delays in completion; |
| ● | CBM to supply and sell to MIG an agreed quantity of electricity at different intervals for an agreed price at each interval; |
| ● | MIG will construct, own, operate and maintain the MDC Connection Infrastructure (as that term is defined in the Electricity Supply Agreement) on the Australian Site; |
| ● | The term of the Electricity Supply Agreement is 7 years (2 x 3.5 year terms); provided that MIG may terminate the agreement upon 12 months written notice to CBM; |
| ● | There is a profit-sharing arrangement whereby MIG will pay CBM 10% of the Net Bitcoin Revenue (as that term is defined in the Electricity Supply Agreement) generated by MIG through the operations on the Australian Site; |
| ● | In each year during the Supply Term, MIG must (a) take electricity at the Termination Point offered to it at no less than the Minimum Transfer Capacity and (b) MIG agrees to take an aggregate amount of electricity equal to or greater than the Annual Compensation Threshold. MIG agrees to pay CBM cash for any shortfall.
| |
| ● | MIG will pay to CBM monthly supply charges described as “MIG Charges” (as that term is defined in the Electricity Supply Agreement); |
| ● | MIG grants to CBM a “security interest” to secure the payment obligations of MIG up to the amount of AUD3,657,000, which is subordinated to any security interested granted by MIG to a third party lender; |
| ● | If the Electricity Supply Agreement is terminated early, an “Early Termination Amount” will be calculated by the non-defaulting party and payable by the defaulting party. |
The foregoing is a summary of the material terms of the Electricity Supply Agreement and is qualified in its entirety by reference to the Electricity Supply Agreement. Capitalized terms used and not defined above have the meanings set forth in the Electricity Supply Agreement. A copy of the complete Electricity Supply Agreement is attached to this Current Report on Form 8-K as Exhibit 10.1, and the terms of the Electricity Supply Agreement are incorporated herein by this reference.
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Item 8.01 Other Events
The Company issued a press release on October 22, 2021, in relation to the Electricity Supply Agreement, a copy of which is attached to this Form 8-K as Exhibit 99.1, which is incorporated herein by reference.
Item 9.01. Financial Statements and Exhibits
(d) Exhibits.
| Exhibit
No. |
Description | |
| 10.1 | Electricity Supply Agreement between MIG No.1 Pty Ltd and Cape Byron Management Pty Ltd dated October 22, 2021 | |
| 99.1 | Press Release issued by Mawson Infrastructure Group Inc. on October 22, 2021 announcing the Electricity Supply Agreement | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document) |
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CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
Mawson cautions that statements in this report that are not a description of historical fact are forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995. Forward-looking statements may be identified by the use of words referencing future events or circumstances such as “expect,” “intend,” “plan,” “anticipate,” “believe,” and “will,” among others. Because such statements are subject to risks and uncertainties, actual results may differ materially from those expressed or implied by such forward-looking statements. These forward-looking statements are based upon Mawson’s current expectations and involve assumptions that may never materialize or may prove to be incorrect. Actual results and the timing of events could differ materially from those anticipated in such forward-looking statements as a result of various risks and uncertainties. More detailed information about the risks and uncertainties affecting Mawson is contained under the heading “Risk Factors” included in Mawson’s Annual Report on Form 10-K filed with the SEC on March 1, 2021, Mawson’s Quarterly Report on Form 10-Q filed with the SEC on August 10, 2021, and in other filings that Mawson has made and may make with the SEC in the future. One should not place undue reliance on these forward-looking statements, which speak only as of the date on which they were made. Because such statements are subject to risks and uncertainties, actual results may differ materially from those expressed or implied by such forward-looking statements. Mawson undertakes no obligation to update such statements to reflect events that occur or circumstances that exist after the date on which they were made, except as may be required by law.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the Company has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| Mawson Infrastructure Group Inc. | ||
| Date: October 22, 2021 | By: | /s/ James Manning |
| James Manning | ||
| Chief Executive Officer | ||
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Exhibit 10.1
 |
Final: 21 October 2021 |
Electricity Supply and Sale Agreement
Cape Byron Management Pty Ltd
ABN 26 165 320 445
and
MIG No. 1 Pty Ltd
ACN 641 831 912
2021
CONTENTS
| CLAUSE | PAGE | ||
| 1. | INTERPRETATION | 1 | |
| 1.1 | Definitions | 1 | |
| 1.2 | Rules for interpreting this agreement | 7 | |
| 1.3 | Requirement on a person not a party to this agreement | 8 | |
| 2. | conditions precedent | 9 | |
| 2.1 | Conditions Precedent | 9 | |
| 2.2 | Satisfaction of Conditions Precedent | 9 | |
| 2.3 | Waiver of Conditions Precedent | 9 | |
| 3. | term |
10 | |
| 4. | acknowledgment regarding Condong connection Infrastructure, mdc connection infrastructure and SITE | 10 | |
| 5. | construction of condong connection infrastructure
|
10 | |
| 5.1 | Purpose of works | 10 | |
| 5.2 | Responsibility for Condong Infrastructure and Works | 11 | |
| 6. | construction of mdc connection infrastructure | 11 | |
| 6.1 | Purpose of the works | 11 | |
| 6.2 | MDC Connection Infrastructure | 11 | |
| 7. | Commissioning and COMMERCIAL OPERATIONS | 12 | |
| 7.1 | MDC Stages and Commissioning Energisation Date | 12 | |
| 7.2 | Liquidated Damages | 13 | |
| 7.3 | Parties to negotiate | 14 | |
| 8. | Access Licence for the Site | 14 | |
| 9. | Supply and Sale of Electricity | 14 | |
| 9.1 | Supply and sale of electricity - Annual Firm Priced Volume | 14 | |
| 9.2 | Supply and sale of electricity – Annual Non-Firm Priced Volume | 15 | |
| 9.3 | Bitcoin Mining Profit Share | 15 | |
| 9.4 | Annual Consumption Threshold | 16 | |
| 9.5 | Interruptions and planned outages | 16 | |
| 9.6 | Annual Consumption Threshold | 16 | |
| 10. | Monthly Charges | 16 | |
| 11. | operational obligations of the parties | 17 | |
| 11.1 | CBM’s obligations | 17 | |
| 11.2 | MIG’s obligations | 17 | |
| 11.3 | Mutual obligations | 18 | |
| 12. | Invoices and Payment | 19 | |
| 12.1 | Invoices | 19 | |
| 12.2 | Payment | 19 | |
| 13. | goods and services tax (gst) | 19 | |
| 14. | access | 20 | |
| 15. | metering AND cbm OWNED eQUIPMENT | 20 | |
| 15.1 | Installation of Metering System | 20 | |
| 15.2 | MIG’s obligations | 20 | |
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| 15.3 | Measuring energy | 20 | |
| 15.4 | Estimations where no readings | 21 | |
| 15.5 | Liability | 21 | |
| 16. | MIG SECURITY | 22 | |
| 17. | Change in Law | 24 | |
| 18. | Right to disconnect | 24 | |
| 19. | Reconnection after disconnection | 24 | |
| 20. | Green products | 25 | |
| 21. | insurance | 25 | |
| 22. | Retailer of last resort | 25 | |
| 23. | Default and termination | 25 | |
| 23.1 | Default | 25 | |
| 23.2 | Financial Default | 25 | |
| 23.3 | Non-Financial Default | 26 | |
| 23.4 | Insolvency Event | 27 | |
| 23.5 | Disconnection of MIG | 27 | |
| 23.6 | MIG termination | 27 | |
| 23.7 | Payment on early termination | 27 | |
| 23.8 | Calculation of the Early Termination Amount | 28 | |
| 24. | Force majeure | 29 | |
| 24.1 | Force Majeure defined | 29 | |
| 24.2 | Exclusions | 29 | |
| 24.3 | Non-performance excused | 30 | |
| 24.4 | Notification and diligence | 30 | |
| 24.5 | Costs of Force Majeure | 30 | |
| 24.6 | Termination | 30 | |
| 25. | Dispute resolution | 30 | |
| 26. | Warranties | 31 | |
| 27. | General provisions | 31 | |
| 27.1 | Entire agreement | 31 | |
| 27.2 | No reliance | 31 | |
| 27.3 | Variation | 31 | |
| 27.4 | Waiver | 32 | |
| 27.5 | Severability | 32 | |
| 27.6 | Indemnities | 32 | |
| 27.7 | Survival | 32 | |
| 27.8 | Assignment and Change of control | 32 | |
| 27.9 | Confidentiality | 33 | |
| 27.10 | Notices | 33 | |
| 27.11 | Costs and stamp duty | 34 | |
| 27.12 | Governing law | 34 | |
| 27.13 | Counterparts | 34 | |
| Schedule | ||
| 1 | CPI Escalation | 35 |
| 2 | Net BTC Revenue and BTC Floor Price Calculation | 36 |
| 3 | Site | 37 |
| 4 | Infrastructure Diagram | 38 |
| 5 | Insurances | 39 |
| 6 | Peppercorn Site Licence | 40 |
| 7 | Marginal Costs of Production | 41 |
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THIS AGREEMENT is made on the 22nd of October 2021
BETWEEN:
Parties
| (1) | Cape Byron Management Pty Ltd ABN 26 165 320 445 whose registered office is at Suite 1, 303 Capri on Via Roma, 15 Via Roma, Isle of Capri, QLD 4217 (CBM); and |
| (2) | MIG No. 1 Pty Ltd ACN 641 831 912 whose registered office is at Level 5, 97 Pacific Highway, North Sydney, NSW 2060 (MIG). |
RECITALS:
| (A) | Mawson Infrastructure Group Pty Ltd (Mawson) has a specialist design, procurement process and operational crypto-mining business. MIG is a Mawson subsidiary and is looking to design, procure, own and operate modular data centres. |
| (B) | CBM is a company which controls the Site near the Condong Power Station on which MIG would like to locate and operate the Modular Data Centre. |
| (C) | CBM has agreed to supply and sell, and MIG has agreed to take and purchase, electricity generated by the Condong Power Station and/or purchased from the Spot Market for use at the Modular Data Centre on the terms and conditions of this agreement. |
| (D) | The Parties are aligned in their commitment to comply with applicable environmental, social and governance (ESG) laws and regulations regarding their obligations under this agreement. |
| (E) | This agreement is part of planned series of agreements under which the Parties, or related parties, seek to develop further projects globally with the aim to reach an average price of electricity of USD 40/MWh across the portfolio of the projects. |
THE PARTIES AGREE AS FOLLOWS:
| 1. | INTERPRETATION |
| 1.1 | Definitions |
The following definitions apply in this agreement.
AEMO means the Australian Energy Market Operator.
Annual Consumption Threshold means 75% of the Annual Contract Volume, which is the amount of electricity MIG guarantees to buy from CBM each year during the Supply Term.
Annual Contract Volume means:
| (a) | for each year during the Supply Term, 175,200 MWh of electricity to be supplied to the Termination Point of the Modular Data Centre (at the Maximum Transfer Capacity); and |
| (b) | for any part year period during the Supply Term, an amount equal to 175,200 MWh of electricity to be supplied to the Termination Point of the Modular Data Centre (at the Maximum Transfer Capacity) pro-rated for the number of days in that part year period. |
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Annual Firm Priced Volume means:
| (a) | subject to paragraph (b), an amount equal to 90% of the Annual Contract Volume; or |
| (b) | if at any time during a month in the Supply Term, either the: |
| (i) | average price per Bitcoin as displayed on a globally-recognised exchange is below a calculated BTC Floor Price, adjusted on a monthly basis accordance with Schedule 2, for each day of that month; or |
| (ii) | the capacity of the Modular Data Centre to mine Bitcoin as a result of MIG’s equipment failure is 50% or less for each day of that month, |
the Annual Firm Priced Volume will be reduced by 50% for every month that (i) and/or (ii) occurs.
Annual Non-Firm Priced Volume means, for each year of the Supply Term, an amount equal to 17,520MWh.
Authorisation means any licence, permit, consent, authorisation, approval, registration, determination, certificate, exemption, filing, notice, qualification or other requirement (and any conditions attached to any of them) of or issued by any Regulatory Authority that must be obtained, held or satisfied:
| (a) | to perform a party’s obligations under this agreement; |
| (b) | for a party to receive the benefits of this agreement; or |
| (c) | for the development, commissioning and operation of the assets contemplated to be constructed under this agreement. |
Authorised Representative means for CBM, the Chief Executive Officer and for MIG, the Chief Executive Officer or their designee, confirmed in writing from time to time.
Billing Period means monthly.
BTC Floor Price is defined in Schedule 2
BTC Gross Profit License Charge means an amount calculated by multiplying the Net BTC Revenue by 10%.
CBM Bank Account means the National Australia Bank CBM account, with a BSB number of 084 004 and an Account Number of 394 344 892.
Commencement Date means the date of this agreement.
Commercial Operations means the date on which the MDC Connection Infrastructure and the Condong Connection Infrastructure are constructed and connected to enable electricity to be supplied from the Condong Power Station to 8 Modular Data Centres at the Termination Point.
Commercial Operations Date means the date that is one calendar month after the Commissioning Energisation Date of Stage 3 MDC.
Commissioning Energisation Date means the date set out in the Commissioning Energisation Table for each MDC Stage as set out in clause 7.1.
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Commissioning Period means the period commencing on the Commissioning Energisation Date of Stage 1 MDC and ending on the Commercial Operations Date.
Conditions Precedent Table means the Table set out in clause 2.1.
Condong Infrastructure and Works means all infrastructure (both electrical and otherwise) that is required for the connection of the Condong Power Station to the Termination Point for each of the MDC Stages set out in clause 7.1, including all civil works required for the Modular Data Centres to be installed, operate, and maintained pursuant to the plans and drawings in Schedule 4.
Condong Power Station means the existing 30 MW biomass fired power station operated by Cape Byron Management Pty Ltd, which produces energy largely from sugar cane milling waste, along with certain types of wood residues and energy crops, located at the Site.
Confidential Information means all confidential, non-public or proprietary information, regardless of how the information is stored or delivered, relating to the business, technology or other affairs of a party, and includes the terms of this agreement.
Connection Agreement means the “Embedded Generator Connection Agreement” between Essential Energy ABN 37 428 185 226 (formerly Country Energy), Cape Byron Power I Pty Ltd ABN 26 074 408 923 (formerly Delta Electricity Australia Pty Ltd) and Cape Byron Power II Pty Ltd ABN 67 095 991 638 (formerly Sunshine Renewable Energy Pty Ltd).
Default means a Financial Default or a Non-Financial Default, as applicable.
Distribution Network means the distribution network operated by Essential Energy to which the Condong Power Station is connected at the Distribution Network Connection Point.
Distribution Network Connection Point means the point of connection of the Condong Power Station to the Distribution Network, being the point at which the electricity supply cables of the Condong Connection Line connect to the Distribution Network.
Early Termination Amount means the amount calculated in accordance with clause 23.8.
Electricity Legislation means the Electricity Supply Act 1995 (NSW), the National Electricity Law, the National Energy Retail Law (NSW) No 37a and regulations, standards, codes, rules and guidelines made under those statutes.
Energy Charge means, for each Trading Interval during the Supply Term, the actual metered consumption of electricity measured at the Termination Point multiplied by:
| (a) | in respect of the Annual Firm Priced Volume, the PPA Price; and |
| (b) | in respect of the Annual Non-Firm Priced Volume, the prevailing Spot Price. |
Good Industry Practice means the exercise of that degree of skill, diligence, prudence and foresight which would reasonably and ordinarily be expected from a skilled and experienced operator engaged in the same type of undertaking as the relevant plant and equipment in either the crypto mining or power generation industries (as applicable) and, without limitation, incorporates the concept of “Good Electricity Industry Practice” as defined in the National Electricity Rules.
Greenhouse Gas means carbon dioxide, methane, nitrous oxide, hydro fluorocarbons, per fluorocarbons, sulphur hexafluoride or any other gas recognised as having an effect on global climatic temperature under any United Nations convention or protocol from time to time.
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Green Products means an LGC, STC, GPR and any other rights, entitlements, credits, offsets, allowances, compensation, benefits or certificates of any kind, recognised or arising under any scheme, law, policy or arrangement established or regulated by a Regulatory Authority which are or which become available to the owner or operator of any facility for the generation of electricity from a clean energy, renewable or zero Greenhouse Gas emissions source in connection with its existence or operations as a generator of electricity from a renewable, clean energy or zero Greenhouse Gas emissions source including under the Renewable Energy Act or any emissions trading scheme, carbon pollution reduction scheme or other arrangement concerned with the regulation or reduction of Greenhouse Gas emissions or other programs for the benefit of the environment.
Green Products Charges means the amount agreed by the parties under clause 20(c).
Head Lease means lease registration number AB562099M.
Insolvency Event means, in respect of a person:
| (a) | that person ceasing, or threatening to cease, to carry on all or substantially all of its business or operations; |
| (b) | that person declaring itself, or being declared, to be insolvent or bankrupt or applying to a court for an order to similar effect; |
| (c) | any writ of execution, garnishee order, mareva injunction or similar order, attachment or process being made against that person or all or substantially all of its assets; |
| (d) | a liquidator, provisional liquidator, administrator, receiver, controller, trustee or similar official, being appointed to that person or all or substantially all of its assets; |
| (e) | an order being made, or a resolution being passed or a meeting being convened for the purpose of that person: |
| (i) | being wound up, deregistered or dissolved; or |
| (ii) | proposing to enter or entering into any form of moratorium or other arrangement or scheme with any of its creditors; |
| (f) | that person being unable to pay its debts as and when those debts become due and payable; |
| (g) | that person being an insolvent under administration as defined in the Corporations Act; or |
| (h) | if the person is foreign, anything analogous to paragraphs (a) to (g) in its place of incorporation, formation or domicile (as applicable). |
LGC means a Large-Scale Generation Certificate created under Division 4 of Part 2 of the Renewable Energy Act that may be created under the Renewable Energy Act, registered under Division 5 of Part 2 of the Renewable Energy Act and transferable under Division 6 of Part 2 of the Renewable Energy Act.
Marginal Cost of Production has the meaning as set out in Schedule 7.
Maximum Transfer Capacity means the maximum demand allowable at the Termination Point, being:
| (a) | for Stage 1 MDC, 1.9MW; |
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| (b) | for Stage 2 MDC, 10MW; |
| (c) | for Stage 3 MDC and the Supply Term 20MW. |
MDC Connection Infrastructure means any electrical infrastructure that is owned by MIG required for the connection of the Modular Data Centre up to the Termination Point.
MDC Stage means the either individually or collectively Stage 1 MDC and Stage 2 MDC and Stage 3 MDC as provided by clause 7.1.
Metering Installation has the meaning given to that term in the National Electricity Rules.
MIG Metering Data means the metering data obtained from MIG’s metering systems installed in the Modular Data Centers.
MIG Charges means, for each month during the Commissioning Period and the Supply Term, the:
| (a) | Energy Charge; |
| (b) | BTC Gross Profit Licence Charge; and |
| (c) | Any amount of electricity where clause 9.1 should apply but where MIG did not take the electricity offered up to the Annual Firm Priced Volume; and |
| (d) | Green Products Charge (if applicable). |
Minimum Load means the electricity supply required by MIG for the auxiliary load of the Modular Data Centre (estimated at 0.5MW) for each Trading Interval during the Supply Term when MIG are not mining bitcoin measured at the Termination Point and is included in the Annual Firm Priced Volume.
Minimum Transfer Capacity means the minimum demand that must be maintained at the Termination Point during the Supply Term, being 15MW.
Modular Data Centre or MDC means the Stage 1 MDC, Stage 2 MDC and Stage 3 MDC.
National Electricity Law means the national electricity law set out in the National Electricity (South Australia) Act 1996 (SA), as adopted and applied in New South Wales.
National Electricity Rules means the national electricity rules made under the National Electricity Law, as adopted and applied in New South Wales.
Net BTC Revenue means the monthly revenue derived in connection with the mining of Bitcoin at the Modular Data Centre during the Supply Term, as calculated in accordance with the calculation method described in Schedule 2.
Notified Non-Firm Price means the price as defined in clause 9.2.
Notified Spot Profit Price means the price as defined in clause 9.2(d).
Peppercorn Site License means the license between CBM and MIG that provides for MIG to operate their Modular Data Centre for the Supply Term within the Site and further described in Schedule 6.
PPA Price means:
| (a) | subject to paragraph (b), $70/MWh; or |
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| (b) | $50/MWh, where the Marginal Cost of Production for CBM reduces by $20/MWh or more, as a result of the Condong Power Station operating on recovered timber (or any other fuel that is not an “eligible waste fuel” under Section 3 of the NSW Energy from Waste Policy Statement), |
in each case, subject to escalation under schedule 1.
Regional Reference Node means the Sydney West 132kV node.
Regulatory Authority means:
| (a) | any government or a governmental, quasi-governmental or judicial entity or authority; |
| (b) | a stock exchange; and |
| (c) | any other authority, agency, commission, regulator, ministry, department, instrument, tribunal (including any pricing body), enterprise, delegated authority or similar entity, whether of Australia or elsewhere that has powers or jurisdiction under any Regulatory Requirement over a party or any act relating to this agreement. |
Regulatory Requirement means:
| (a) | any act, regulation or other statutory instrument or proclamation of any applicable jurisdiction in which any act or obligation in connection with this agreement is or is to be carried out or regulated; |
| (b) | any applicable law, whether of a legislative, equitable or common law nature; |
| (c) | any applicable Australian standards and codes; and |
| (d) | any judgment, decree of similar order with mandatory effect or any binding requirement or mandatory approval of a Regulatory Authority, including any Authorisation, relevant to a party or performance of all or part of this agreement. |
Renewable Energy Act means the Renewable Energy (Electricity) Act 2000 (Cth).
Rolling Non Firm Priced Volume means the rolling sum of TI Non Firm Priced Volume over the previous 105,120 Trading Intervals.
Site means the land shown on drawing in Schedule 3.
Spot Market has the meaning given in the National Electricity Rules.
Spot Price means the spot price (as that term is defined in the National Electricity Rules) at the Regional Reference Node.
Spot Price Gross Profits means, for a Trading Interval, an amount calculated as follows:
Spot_Price_Gross_Profits = (Spot Price – PPA Price) x TI Spot Profit Volume x MLF
where:
MLF is the Marginal Loss Factor (as that term is defined in the National Electricity Rules) applying during that Trading Interval at the Condong Power Station.
Stage 1 MDC means the proposed MAC/AU.1 temporary transportable structure housing crypto mining equipment and to be located at a temporary location at the Site and subsequently moved during Stage 2 MDC, as set out in Commissioning Energisation Table in clause 7.1.
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Stage 2 MDC means the proposed relocation of MAC/AU.1 and the further MAC/AU.2, MAC/AU.3 and MAC/AU.4temporary transportable structures housing crypto mining equipment to be located at the Site, as set out in Commissioning Energisation Table in clause 7.1.
Stage 3 MDC means the proposed MAC/AU.5, MAC/AU.6, MAC/AU.7 and MAC/AU.8 temporary transportable structures housing crypto mining equipment and to be located at the Site, as set out in Commissioning Energisation Table in clause 7.1.
STC means a small-scale technology certificate as defined in the Renewable Energy Act.
Supply End Date means 3.5 calendar year after the Commercial Operation Date, unless:
| (a) | this agreement has been extended in accordance with clause 3(c)(i), in which case the Supply End Date means 7 calendar years after the Stage 1 Commissioning Energisation Date; or |
| (b) | this agreement has been extended in accordance with clause 3(d), in which case the Supply End Date means the date that is one month after a party provides written notification to the other party that it wishes to terminate this agreement. |
Supply Term means the period commencing on the Commercial Operations Date and ending on the Supply End Date.
Termination Point means the point identified as the “Termination Point” on the drawings in Schedule 4 where the Condong Connection Infrastructure connects to MDC Connection Infrastructure.
TI Non Firm Priced Volume means the amount of electricity in MWh during a given Trading Interval supplied on a non firm basis in accordance with clauses 9.2(b)(i) and 9.2(c)(i).
TI Spot Profit Volume has the meaning given in clause 9.2(d).
Trading Interval has the meaning of five minute intervals as defined in the National Electricity Rules at 1 October 2021 (after the move to 5 minute settlements).
Work Health and Safety Requirements means the MIG Workplace Health and Safety Plan issued to CBM and agreed between the Parties at least one month prior to the commencement of the Commissioning Period.
| 1.2 | Rules for interpreting this agreement |
| (a) | Reference to: |
| (i) | one gender includes the others; |
| (ii) | the singular includes the plural and the plural includes the singular; |
| (iii) | a person includes a body corporate; |
| (iv) | a party includes the party’s executors, administrators, successors and permitted assigns; |
| (v) | a thing includes the whole and each part of it separately; |
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| (vi) | a statute, regulation, code or other law or a provision of any of them includes any consolidation, amendment, re-enactment or replacement of any of them; and |
| (vii) | dollars means Australian dollars unless otherwise stated. |
| (b) | “Including” and similar expressions are not words of limitation. |
| (c) | Where a word or expression is given a particular meaning, other parts of speech and grammatical forms of that word or expression have a corresponding meaning. |
| (d) | Headings and any table of contents or index are for convenience only and do not form part of this agreement or affect its interpretation. |
| (e) | A reference to a party, clause, Schedule, Item, exhibit, attachment or annexure is a reference to a party, clause, Schedule, Item, exhibit, attachment or annexure to or of this agreement, and a reference to this agreement includes all Schedules, Items, exhibits, attachments and annexures to it. |
| (f) | A provision of this agreement must not be construed to the disadvantage of a party merely because that party was responsible for the preparation of this agreement or the inclusion of the provision in this agreement. |
| (g) | If an act must be done on or by a specified day which is not a Business Day, it must be done instead on or by the next Business Day. |
| 1.3 | Requirement on a person not a party to this agreement |
If a provision of this agreement requires a person that is not a party to this agreement to do, or not to do, a thing, each party must use its reasonable efforts to ensure that the person does, or does not, do that thing.
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| 2. | conditions precedent |
| 2.1 | Conditions Precedent |
The obligations of the parties under this agreement, other than in this clause 2 and clauses 1, 25 and clauses 27.1 to 27.5 (which are binding as at the Commencement Date), are subject to and do not become binding until and unless each of the conditions set out in the Condition Precedent Table below (each a Condition Precedent) is satisfied or waived under this clause:
Conditions Precedent Table
| Condition Precedent | Benefiting Party | Party to satisfy | Condition Precedent Deadline | |||
| CBM has obtained the written consent of the Sunshine Sugar under the Head Lease to enter into the Peppercorn Site License and has provided a copy of such consent to MIG | MIG | CBM | 11 January, 2022 | |||
| CBM has obtained the consent of Essential Energy under the Connection Agreement to increase the PAUX in Schedule 7 of the Connection Agreement to 24.5MW and has provided a copy of such consent to MIG | MIG | CBM | 11 January, 2022 | |||
| MIG having obtained approval of its board of directors to enter into this Agreement. | MIG | MIG | Contract Signing Date |
| 2.2 | Satisfaction of Conditions Precedent |
| (a) | Each party must use best endeavours to satisfy each Condition Precedent it is obliged to satisfy in accordance with the Conditions Precedent Table and must, by the relevant date for satisfaction, notify the other Party that each Condition Precedent is satisfied. |
| (b) | The Condition Precedent Deadline may be extended only by agreement of the parties in writing on or before the Condition Precedent Deadline. | |
| 2.3 | Waiver of Conditions Precedent |
| (a) | The Conditions Precedent Table sets out which party benefits from the satisfaction of each Condition Precedent. |
| (b) | A Condition Precedent is only waived if: |
| (i) | where the Condition Precedent is included for the benefit of a particular party as set out in the Conditions Precedent Table, and that party gives notice of the waiver of the Condition Precedent to the other party; or |
| (ii) | where the Condition Precedent is included for the benefit of both parties, both parties agree to waive the Condition Precedent. |
| (c) | Either party may terminate this agreement, with no liability to the other party (notwithstanding any other provision of this agreement), by notice to the other party at any time after the Condition Precedent Deadline (as extended) if a Condition Precedent has not been satisfied or waived by that date. |
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| 3. | term |
| (a) | This clause 3 and clauses 4, 5, 6, 7, 8, 13, 14, 15, 16, 23, 24 and 26 commence on the Condition Precedent Deadline. |
| (b) | The remaining provisions of this agreement, other than those referred to in clauses 2.1 and 3(a), commence on the Commercial Operations Date. |
| (c) | No later than six (6) months prior to the expiry of the initial Term, the Parties shall commence discussions on a possible: |
| (i) | 3.5 year extension to the Agreement. |
Any such agreement reached must be mutually agreed in writing by an Authorised Representative of each Party.
| (d) | Unless terminated earlier in accordance with the terms of this agreement, this agreement continues beyond the initial Term on a month-by-month basis until terminated by either party upon 30 days prior written notice on the other party. |
| 4. | acknowledgment regarding Condong connection Infrastructure, mdc connection infrastructure and SITE |
The parties acknowledge and agree that they have jointly developed and reviewed the drawings contained in Schedule 4 describing the Condong Infrastructure and Works, MDC Connection Infrastructure and Site and confirm that:
| (a) | the Condong Infrastructure and Works, MDC Connection Infrastructure and Site are suitable for the installation and operation of the Modular Data Centre; |
| (b) | the Site provides adequate access for emergency removal of the equipment by MIG if and when CBM advise as per CBM’s relevant emergency procedure that a flood event is imminent; |
| (c) | the Site will be constructed and delivered to MIG for their use as a Modular Data Centre in compliance with this agreement and relevant Authorisations currently in place with respect to the Condong Power Station; and |
| (d) | the Parties will work together to ensure that the Modular Data Centre satisfies the requirements of applicable Authorisations during the Term. |
| 5. | construction of condong connection infrastructure |
| 5.1 | Purpose of works |
The parties acknowledge and agree that:
| (a) | the Condong Infrastructure and Works: |
| (i) | must incorporate the design, procurement and construction of all access points and civil foundations required for and fit for purpose for the installation and operation of the Modular Data Centres; |
| (ii) | must incorporate an NBN Internet Connection; and |
| (iii) | must be completed so as to ensure a connection between the Condong Power Station and the Termination Point so that the Modular Data Centre can be powered at all times between the Minimum Load and the Maximum Transfer Capacity as long as the Distribution Network is not in blackout; and |
| (iv) | is to be owned, operated and maintained by CBM. |
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| 5.2 | Responsibility for Condong Infrastructure and Works |
| (a) | CBM is solely responsible for obtaining, maintaining and complying with all applicable Authorisations in respect of the construction, operation and maintenance of the Condong Infrastructure and Works. |
| (b) | The Condong Infrastructure and Works are to be completed by CBM at its cost and must be completed prior to the Commissioning Energisation Date of each MDC Stage set out in the Commissioning Energisation Date Table in clause 7.1. |
| (c) | The parties agree that time is of the essence in the completion of the Condong Infrastructure and Works. |
| (d) | CBM is solely responsible for the ongoing maintenance of the Condong Infrastructure and Works and must ensure that the Condong Infrastructure and Works continues to be capable of supporting the Modular Data Centre operation during the Term. |
| 6. | construction of mdc connection infrastructure |
| 6.1 | Purpose of the works |
The parties acknowledge and agree that:
| (a) | the MDC Connection Infrastructure: |
| (i) | is to be constructed by MIG for the purposes of connecting the Modular Data Centre to the Termination Point; and |
| (ii) | is to be owned, operated and maintained by MIG; and |
| (b) | MIG is responsible to ensure that it obtains and maintains all applicable Authorisations in respect of the construction, operation and maintenance of the MDC Connection Infrastructure. |
| 6.2 | MDC Connection Infrastructure |
| (a) | MIG must design, install, construct and commission the MDC Connection Infrastructure: |
| (i) | so that it has a stable capacity to take electricity between the Minimum Transfer Capacity and the Maximum Transfer Capacity, and must not, during Stage 2 MDC and the Supply Term, modify the MDC Connection Infrastructure so that it no longer has a capacity within that range; and |
| (ii) | in accordance with: |
| (A) | this agreement; |
| (B) | all applicable Regulatory Requirements; and |
| (C) | Good Industry Practice. |
| (b) | MIG must construct and operate the MDC Connection Infrastructure in a manner that will enable MIG to comply with its obligations under this agreement. |
| (c) | CBM acknowledges and agrees that MIG may attach and connect to the Modular Data Centres: |
| (i) | a solar photovoltaic system (including inverters and balance of system); or |
| (ii) | a battery energy storage system. |
| (d) | To avoid doubt, MIG does not have the right to connect any equipment referred to in clause 6.2(c) on Site, unless it attaches exclusively and directly to the Modular Data Centres and is less than 5kW in capacity per MDC. |
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| 7. | Commissioning and COMMERCIAL OPERATIONS |
| 7.1 | MDC Stages and Commissioning Energisation Date |
| (a) | MIG must provide written notice to CBM 25 business days prior to each Commissioning Energisation Date confirming it intends to order and deliver the computer servers required for the Modular Data Centres to satisfy the Commissioning Energisation Date. |
| (b) | Within 5 business days of receipt of MIG’s notice under 7.1(a) CBM must confirm the date that the Condong Infrastructure and Works will be complete in accordance with clause 7.1 for the Commissioning Energisation Date of the respective MDC Stage. |
| (c) | If CBM provides confirmation in accordance with 7.1(b) that the Commissioning Energisation Date can be achieved then MIG will order the computer servers for the respective MDC Stage and if: |
| (i) | the Condong Infrastructure and Works have not been completed; or |
| (ii) | electricity supply up to the Maximum Transfer Capacity is not available for MIG to operate the relevant MDC Stage as set out in the Commissioning Energisation Date Table payable pursuant to clause 7.2, then liquidated Delay Damages will be payable by CBM to MIG pursuant to clause 7.2 payable 30 calendar days from the Commissioning Energisation Date until for the relevant MDC Stage the: |
| (A) | The Condong Infrastructure and Works has been completed; and |
| (B) | electricity supply up to the Maximum Transfer Capacity is available for MIG to operate the relevant MDC Stage as set out in the Commissioning Energisation Date Table |
| (iii) | If CBM provides confirmation in accordance with 7.1(b) that the Commissioning Energisation Date cannot be met then MIG will not order the computer servers and CBM will confirm a proposed alternative date for the Commissioning Energisation Date for the MDC Stage. MIG will then follow the process set out in clause 7.1(a) and write to CBM again 25 calendar days prior to the Commissioning Energisation Date of the relevant MDC Stage. |
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| Commissioning Energisation Date Table (As adjusted by clause 7.1) | ||||||||
| MDC Stage | Modular
Data Centres to be installed |
Commissioning |
Date
by which MIG to provide (25 business days prior) “Notice” by |
Date
by which CBM to provide “Confirmation” (within 5 business days) by | ||||
| Stage 1 MDC |
MAC/AU.1
|
25 October 2021
|
N/A |
N/A
| ||||
| Stage 2 MDC | MAC/AU.1 (Relocation and Reconnection)
MAC/AU.2
MAC/AU.3
MAC/AU.4
|
14 February 2022
|
10 January 2022
|
17 January 2022
| ||||
| Stage 3 MDC | MAC/AU.5
MAC/AU.6
MAC/AU.7
MAC/AU.8 |
14 March 2022
|
7 February 2022
|
14 February 2022
| ||||
| 7.2 | Liquidated Damages |
| (a) | Liquidated damages of $9,375 per day for each Modular Data Centre that is not energised by the date set out clause 7.1 (which the parties agree is a genuine pre-estimate of the loss that will be suffered by MIG) (Liquidated Delay Damages) must be paid by CBM to MIG for any delays in completion of the parties’ obligations set out in in clauses 7.1. |
| (b) | Liquidated Delay Damages must be paid each week for each day of delay. The parties agree that any obligation to pay Liquidated Delay Damages will not be taken into account when determining the limit of the parties’ liability under any liability cap applicable to this agreement. Furthermore, MIG’s rights under this clause may be exercised without prejudice to any other right of action or remedy which has accrued or may accrue. |
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| 7.3 | Parties to negotiate |
| (a) | CBM must promptly notify MIG if a Commissioning Energisation Date requires revision (for whatever reason) and the parties must promptly meet and negotiate in good faith any revision of the Commissioning Energisation Date of any relevant MDC Stage. |
| (b) | Any notice issued pursuant to clause 7.3 (a) must state: |
| (i) | the revised date on which CBM anticipates that the relevant Energisation Date will occur (a Revised Anticipated Date); and |
| (ii) | the reason for the revision. |
| (c) | It is acknowledged and agreed that CBM may issue more than one notice to reflect changes to a Commissioning Energisation Date of any relevant MDC Stage. |
| (d) | The parties agree that it is essential that the deadlines in clauses 7.1 are met (being the Commissioning Energisation Date for each relevant MDC Stage). |
| (e) | During the Commissioning Period: |
| (i) | the parties will meet weekly (or such other period as agreed between the parties) to discuss the progress of the design, construction and commissioning of the Condong Connection Infrastructure and the MDC Connection Infrastructure and any matters that may affect the date on which the Commercial Operation Date is likely to occur; and |
| (ii) | CBM agrees to supply and sell to MIG, and MIG agrees to take and purchase from CBM, the amount of electricity consumed by MIG, up to the Maximum Transfer Capacity applicable during the Commissioning Period; and |
| (iii) | MIG must pay to CBM, for each month during the Commissioning Period, an amount equal to the actual metered consumption of electricity measured at the Termination Point for that month multiplied by the PPA Price as the Energy Charge as well as the BTC Gross Profit Licence Charge. |
| 8. | Access Licence for the Site |
| (a) | CBM must grant to MIG a non-exclusive licence for access to the Site for the purpose of the installation, maintenance and operation of the Modular Data Centre on the terms of the Licence. |
| (b) | CBM must provide MIG with any information or documentation reasonably requested, including the location and connection requirements in respect of the MDC Connection Point. |
| 9. | Supply and Sale of Electricity |
| 9.1 | Supply and sale of electricity - Annual Firm Priced Volume |
In relation to each year during the Supply Term, for each Trading Interval in which the Spot Price is at or below the PPA Price:
| (a) | CBM agrees to supply and sell to MIG; and |
| (b) | MIG agrees to take and purchase from CBM, |
at the Termination Point, a quantity of electricity supplied between the Minimum Transfer Capacity and the Maximum Transfer Capacity at the PPA Price, up to in aggregate, the Annual Firm Priced Volume.
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| 9.2 | Supply and sale of electricity – Annual Non-Firm Priced Volume |
| (a) | CBM may, from time to time, notify MIG in writing of a fixed price (in $/MWh and which must be above the PPA Price) that shall apply to the Annual Non-Firm Priced Volume (Notified Non-Firm Price). |
| (b) | Where the Rolling Non Firm Priced Volume is less than the Annual Non-Firm Priced Volume and where CBM has provided a notification under clause 9.3, then for each Trading Interval in which the prevailing Spot Price: |
| (i) | is at or above the Notified Non-Firm Price: |
| (A) | CBM agrees to supply and sell electricity to MIG by making electricity available at the Termination Point; and |
| (B) | where electricity is made available under subparagraph (b)(i)(A), MIG may, in its sole discretion, elect to take and purchase electricity between the Minimum Transfer Capacity and the Maximum Transfer Capacity from CBM, |
at the Termination Point at the prevailing Spot Price;
| (ii) | is at or below the Notified Non-Firm Price, then clause 9.1 shall apply in respect of that Trading Interval. |
| (c) | Where the Rolling Non Firm Priced Volume is less than the Annual Non-Firm Priced Volume and where CBM has not provided a notification under clause 9.3, then for each Trading Interval in which the prevailing Spot Price: |
| (i) | is above the PPA Price: |
| (A) | CBM may, in its sole discretion, offer to supply and sell electricity to MIG by making electricity available at the Termination Point; and |
| (B) | where electricity is made available under subparagraph (c)(i)(A), MIG may, in its sole discretion, elect to take and purchase electricity between the Minimum Transfer Capacity and the Maximum Transfer Capacity from CBM, |
at the Termination Point at the prevailing Spot Price; and
| (ii) | is at or below the PPA Price, then clause 9.1 shall apply in respect of that Trading Interval. |
| (d) | Where the Rolling Non Firm Priced Volume is equal to or greater than the Annual Non-Firm Priced Volume, MIG will promptly notify CBM in writing a fixed price (in $/MWh) (Notified Spot Profit Price), that shall apply for each Trading Interval in which the prevailing Spot Price is above the Notified Spot Profit Price, and for any such Trading Interval: |
| (i) | MIG will reduce physical consumption of electricity at the Modular Data Centre to a level equivalent to the Minimum Load; and |
| (ii) | CBM will sell a quantity of electricity into the Spot Market equal to the difference between the Minimum Transfer Capacity and the Minimum Load (TI Spot Profit Volume) and the resulting Spot Price Gross Profits will be shared between the Parties on a 50/50 basis. |
The TI Spot Profit Volume is taken to be included in the Annual Non-Firm Priced Volume.
| 9.3 | Bitcoin Mining Profit Share |
During the Term of this agreement, MIG will pay CBM BTC Gross Profit License Charge on a monthly basis.
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| 9.4 | Annual Consumption Threshold |
In each year during the Supply Term MIG must:
| (a) | take electricity at the Termination Point offered to it at no less than the Minimum Transfer Capacity; and |
| (b) | MIG agrees to take an aggregate amount of electricity equal to or greater than the Annual Consumption Threshold. |
If MIG does not take the amount in accordance with 9.4 (a) it agrees to pay CBM for any shortfall as calculated in accordance with the MIG Charges. If at the end of each 12 month period of the Supply Term, MIG have satisfied their obligation in accordance with clause 9.4 (b) then CBM will refund any amounts paid by MIG in accordance with this clause.
| 9.5 | Interruptions and planned outages |
| (a) | MIG acknowledges and agrees that due to a variety of factors that influence the generation, distribution and supply of electricity from the Condong Power to the Termination Point there may be from time to time: |
| (i) | interruptions to the supply of electricity; and/or |
| (ii) | variations in the quality or frequency of electricity, |
| (b) | in each case to the Termination Point and that any such interruption or variation is taken to not vary the Annual Firm Price Volume required to be supplied and sold by CBM in accordance with this agreement. If an interruption pursuant to clause 9.5(a) occurs, CBM must continue to supply electricity from the wholesale market to the Termination Point between the Minimum Transfer Capacity and the Maximum Transfer Capacity at the PPA Price. |
| (c) | CBM acknowledges that it is to carry the costs associated with the supply of electricity under 9.5(b) including but not limited to the risk of spot market exposure and transmission and distribution costs. |
| (d) | On or before each calendar quarter during the Supply Term, both Parties will share their respective planned outage schedules for the Site. |
| 9.6 | Annual Consumption Threshold |
In each year during the Supply Term MIG must:
| (a) | take electricity at the Termination Point offered to it at no less than the Minimum Transfer Capacity; and |
| (b) | MIG agrees to take an aggregate amount of electricity equal to or greater than the Annual Consumption Threshold. |
If at the end of each 12 month period of the Supply Term, MIG does not take the amount in accordance with 9.5 (a) it agrees to pay CBM for any shortfall as calculated in accordance with the MIG Charges.
| 10. | Monthly Charges |
MIG must pay to CBM, for each month during the Supply Term, the MIG Charges.
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| 11. | operational obligations of the parties |
| 11.1 | CBM’s obligations |
CBM must:
| (a) | not access and not permit any third party access to the Modular Data Centres; |
| (b) | obtain and maintain all Authorisations (including any exemptions in respect of the Electricity Legislation) in respect of: |
| (i) | the sale and supply of electricity under this agreement; and |
| (ii) | the ownership, operation and maintenance of the Condong Power Station and the Condong Connection Infrastructure. |
| (c) | notify MIG immediately of any damage to MIG’s plant or equipment of which it becomes aware; |
| (d) | not knowingly do, or refrain from doing, anything where that action or failure to act would cause MIG to breach any of its obligations under, or in connection with: |
| (i) | the Connection Agreement; and |
| (ii) | any applicable Regulatory Requirements, including under the Electricity Legislation; |
| (e) | ensure that MIG continues to have access to the Modular Data Centres; |
| (f) | operate, repair and maintain the Condong Power Station and the Condong Connection Infrastructure in accordance with Good Industry Practice; |
| (g) | use best endeavours to minimise the occurrence of any interruptions to supply or variations in the quality or frequency of electricity supplied to the Termination Point; |
| (h) | ensure that MIG has uninterrupted access to an NBN Internet connection: |
| (i) | for Stage 1 MDC at the cost of CBM; and |
| (ii) | for Stage 2 MDC and Stage 3 MDC MIG will register, activate and pay monthly usage charges to an external provider of their choice. |
| (i) | maintain records of electricity consumed and generated and provide such records to MIG on request; and |
| (j) | if CBM is aware that the supply of electricity to the Termination Point will be, or is likely to be, interrupted for any reason, CBM must immediately notify MIG of the interruption as soon CBM is aware of the interruption. |
| 11.2 | MIG’s obligations |
| (a) | MIG must: |
| (i) | only use electricity supplied to the Termination Point for the purposes of operating, repairing and maintaining the Modular Data Centre and for no other purpose; |
| (ii) | operate, repair and maintain the Modular Data Centre and the MDC Connection Infrastructure up to the Termination Point in accordance with Good Industry Practice; |
| (iii) | obtain and maintain all Authorisations (including any exemptions in respect of the Electricity Legislation) in respect of: |
| (A) | the taking and purchase of electricity from CBM under this agreement; and |
the ownership, operation and maintenance of the MDC Connection Infrastructure and Modular Data Centre.
| (iv) | comply with all reasonable directions from CBM relating to access to the Site, including Work Health and Safety Requirements |
| (b) | MIG agrees to notify CBM immediately of any damage to CBM’s plant or equipment of which it becomes aware. |
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| (c) | MIG must not knowingly do, or refrain from doing, anything where that action or failure to act would cause CBM to breach any of its obligations under, or in connection with: |
| (i) | the Connection Agreement; and |
| (ii) | any applicable Regulatory Requirements, including under the Electricity Legislation. |
| (d) | Subject to clause 6.2(c), MIG must not: |
| (i) | connect (directly or indirectly) to the Termination Point: |
| (A) | a solar photovoltaic system, unless it attaches exclusively to the Modular Data Centres; or |
| (B) | a battery energy storage system, unless it attaches exclusively to the Modular Data Centres; or |
| (C) | any electrical generation system; or |
| (D) | an embedded generator; |
| (ii) | export electricity generated by (or on behalf of) MIG into the Termination Point; or |
| (iii) | perform (or engage a third party to perform) any works that will, or are likely to, impact on the Condong Connection Line. |
| (iv) | perform (or engage a third party to perform) any works that will, or are likely to, impact on the Condong Connection Line. |
| (e) | MIG must not interfere with any of CBM’s plant or equipment at the MDC Connection Point (including any meters, transformers, power factor correction equipment, cabling or ring main units). |
| (f) | MIG agrees to notify CBM immediately of any damage to CBM’s plant or equipment of which it becomes aware. |
| (g) | If requested by CBM in writing, MIG must within 10 business days upon receipt of such request, provide CBM with a pool statement showing the mining activity undertaken by the Modular Data Centre to help CBM verify the Net BTC Revenue Calculation during the Commissioning Period and the Supply Term. |
| 11.3 | Mutual obligations |
Each party must comply with applicable Regulatory Requirements, including applicable Electricity Legislation. Each Party acknowledges that planning permission for the Stage 2 MDC has not been applied for because it is considered by the parties that the Modular Data Centre comprise temporary structures on an industrial site and that no planning approval is necessary. Should this interpretation prove incorrect, the parties agree and acknowledge that a relevant planning application may be made by CBM, at its cost, during the Supply Term.
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| 12. | Invoices and Payment |
| 12.1 | Invoices |
| (a) | At the end of each Billing Period, CBM will issue an invoice to MIG for all amounts payable under this agreement. The invoice must include (as applicable): |
| (i) | unbilled MIG Charges in respect of a previous Billing Period; |
| (ii) | adjustments in relation to any MIG Charges which were invoiced or should have been invoiced in respect of a previous Billing Period; |
| (iii) | estimated amounts for some Charges, where relevant and permitted under this agreement; |
| (iv) | any other amounts payable by MIG under this agreement; and |
| (v) | the GST payable in respect of items (i) to (v) (if applicable); and |
| (vi) | any credit due to MIG as payment for MIG’s 50% share of Spot Price Gross Profits. |
| (b) | Each invoice issued must be in the form of a tax invoice, complying with the requirements of the applicable GST laws. |
| 12.2 | Payment |
| (a) | MIG must pay an invoice rendered in accordance with clause 12.1 within 10 days of its receipt. MIG will pay the amount owing via electronic funds transfer to the CBM Bank Account except in cases where CBM requests that the BTC Gross Profit License Charge (excluding GST) is paid in bitcoin via transfer to a wallet nominated by CBM. |
| (b) | If MIG believes (acting in good faith) an invoice is incorrect, MIG must, within 10 days of receipt of an invoice, pay that part of the invoice which is not in dispute and provide CBM with a statement of its reasons for disputing the invoice. |
| (c) | Any disputes in relation to an invoice must be dealt with in accordance with clause 25. |
| (d) | Upon resolution of the disputed amount, the party which owes the further amount must promptly (and no later than 10 Business Days) pay the owed amount to the other party with interest calculated in accordance with clause 12.2(e) from the date of underpayment to the date of payment of the corrected amount. |
| (e) | If MIG is late in payment, CBM may charge MIG interest on the outstanding amount at the corporate overdraft rate (from time to time) quoted by the Commonwealth Bank of Australia (or if that rate does not exist another similar rate as nominated by CBM). |
| 13. | goods and services tax (gst) |
| (a) | All amounts payable under or in connection with this agreement are exclusive of GST. |
| (b) | A recipient of a taxable supply under or in connection with this agreement must pay to the supplier, in addition to the GST exclusive consideration for the taxable supply, an amount equal to any GST paid or payable by the supplier in respect of the taxable supply. |
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| (c) | The recipient must make that payment to the supplier as and when the GST exclusive consideration or part of it is provided, except that the recipient need not pay unless the recipient has received a tax invoice (or an adjustment note) for that taxable supply. |
| (d) | Words in this clause 13 have the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and regulations, unless the context makes it clear that a different meaning is intended. |
| 14. | access |
| (a) | CBM is entitled to: |
| (i) | access; and |
| (ii) | inspect, install, repair and maintain plant and equipment owned by CBM on the Site, |
in order to comply with its obligations or exercise its rights under this agreement, by giving reasonable notice to MIG (except in an emergency) and complying with any reasonable requirements of MIG, including work, health and safety requirements.
| (b) | Any plant or equipment installed by CBM on the Site remains the property of CBM. |
| 15. | metering AND cbm OWNED eQUIPMENT |
| 15.1 | Installation of Metering System |
| (a) | CBM must arrange for a Metering Installation to be installed prior to each Commissioning Energisation Date. |
| (b) | CBM must comply with all Regulatory Requirements relating to the metering, registration and licensing requirements for the supply of electricity to the Termination Point. |
| (c) | CBM is responsible for ensuring that a Metering Installation is installed and maintained at the Termination Point which complies with all applicable Regulatory Requirements and contractual requirements (Metering System). |
| 15.2 | MIG’s obligations |
| (a) | MIG must not damage, modify or interfere with any Metering System OR CBM equipment installed on the Site. |
| (b) | MIG must comply with any reasonable direction given by CBM in regards to the Metering System and CBM equipment on the Site. |
| (c) | MIG must allow CBM safe and convenient access to the Site. |
| (d) | MIG acknowledges that any equipment installed on the Site will need to be maintained and tested in accordance with the requirements of the Regulatory Requirements and MIG must cooperate with CBM to allow this to occur. |
| 15.3 | Measuring energy |
Subject to clause 15.4, the quantity of electricity sold to MIG under this agreement determined from Metering Data readings of the Metering System installed at the MDC Connection Point.
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| 15.4 | Estimations where no readings |
| (a) | If the installed Metering System is unable to be read, or the Metering Data is not obtained for any reason (for example, if access to the Metering System cannot be gained, or the Metering System breaks down or is faulty), the amount of electricity which will be invoiced to the MIG for that Billing Period according to the MIG Metering Data provided by MIG to CBM. |
| (b) | Subject to the National Electricity Rules, if no Metering Data and no MIG Metering Data can be obtained as per clause 15.4(a), the amount of electricity which will be invoiced to MIG for that Billing Period may be estimated by CBM. |
| (c) | Where an invoice is based on an estimation then, subject to any relevant Regulatory Requirements, the estimation will be based on: |
where applicable, historical metering data for MIG reasonably available to CBM; or
| (i) | where historical metering data is not available, the average usage of energy by a comparable modular data centre over a corresponding period. |
| (d) | Where CBM has based an invoice on an estimation, the invoice will clearly state that the invoice is based on an estimation. |
| 15.5 | Liability |
| (a) | Subject to clauses 15.5(b) to 15.5(c), a party will not be liable to the other party for any loss, damage or expense suffered or incurred by the other party arising out of or in relation to this agreement (whether in contract, tort (including negligence) breach of statute or otherwise) except for: |
| (i) | any damage to or loss of property owned by the other party; or |
| (ii) | any liability that the other party incurs to any other person as a result of any personal injury or death occasioned to or suffered by that person. |
| (b) | Subject to clause 15.5(c), neither party shall in any circumstances be liable to the other party under, or in connection with, this agreement, whether in contract, tort (including negligence), breach of statute or otherwise for any loss of profits or opportunity arising out of or in relation to this agreement, or otherwise to the extent that any insurance policy required to be effected and maintained under this agreement would respond to indemnify the other party, and whether or not foreseeable at the time of entering this agreement. |
| (c) | The exclusions of liability under clauses 15.5(a) and 15.5(b)does not apply to the parties liability in respect of the following: |
| (i) | an obligation to pay or a payment of Liquidated Delay Damages; |
| (ii) | the payment of the MIG Charges; |
| (iii) | the payment of any Early Termination Amount; or |
| (iv) | the payment of any other amount payable under this agreement. |
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| (d) | The Competition and Consumer Act 2010 (Cth) and other Regulatory Requirements (Consumer Laws) imply certain conditions, warranties and rights into contracts that cannot be excluded or limited. Unless one of these Consumer Laws requires it, CBM gives no condition, warranty or undertaking, and CBM makes no representation to MIG, about the condition or suitability of the connection services or electricity including its quality, fitness for purpose or safety, other than those set out in this agreement. Any liability CBM has to MIG under these Consumer Laws that cannot be excluded but that can be limited is (at CBM’s option) limited to: |
| (i) | providing equivalent goods or services to those provided under this agreement; or |
| (ii) | paying MIG the cost of replacing the goods or services provided under this agreement or acquiring equivalent goods or services. |
| 16. | MIG SECURITY |
| (a) | In this clause: |
| (i) | Collateral means in relation to the Grantor, exclusively MDC/AU.1 and MDC/AU2. |
| (ii) | Grantor means MIG. |
| (iii) | Revolving Assets means any Collateral which is: |
| (A) | inventory; |
| (B) | a negotiable instrument; and |
| (C) | money (including money withdrawn or transferred to a third party from an account of the Grantor with a bank or other financial institution). |
| (iv) | Secured Money means all money and amounts (in any currency) that a Grantor is or may become liable for to pay the Secured Party under this agreement up to the to the total amount of AU$3,657,000, to be secured by the individual Modular Data Centres comprising the Collateral as follows: |
| (aa) | MDC/AU.1 with AU$3,000,000.00; and |
| (bb) | MDC/AU.2 with AU$657,000.00. |
| (A) | The amount set out in 16(a)(iv)(bb) shall be reduced progressively on a monthly basis by an amount equal to the BTC Gross Profit License Charge paid by MIG to CBM in accordance with this agreement, until it is equal AU$0.00. |
| (B) | Subsequent to the full reduction of the amount secured by MDC/AU.1 pursuant to 16(a)(iv)(A), the amount set out in 16(a)(iv)(aa) shall be reduced progressively on a monthly basis by an amount equal to the BTC Gross Profit License Charge paid by MIG to CBM in accordance with this agreement, until it is equal AU$0.00. |
| (v) | Secured Party means CBM. |
| (vi) | Permitted Security Interest means a Security Interest granted to a third party lender (which may include as bank or non-bank lender) for an amount up to 50% of the costs of MDC/AU.1 and MDC/AU.2. |
| (vii) | PPSA means Personal Property Securities Act 2009 (Cth). |
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| (b) | If requested by CBM, the Grantor must provide within 10 business days documentation evincing the costs of each individual Modular Data Centres comprising the Collateral. |
| (c) | Subject to subclause (c), each Grantor grants a security interest (Security Interest) in the Collateral to the Secured Party to secure payment of the Secured Money. |
| (d) | The Secured Party agrees and accepts that it will have a subordinate interest to any Permitted Security Interest granted by the Grantor. The Secured Party agrees to not register its Security Interest until after registration of any Permitted Security Interest, on a date 35 calendar days prior to the Commissioning Energisation Date of Stage 2 MDC. |
| (e) | For the purposes of section 20(2)(b) of the PPSA (but without limiting the meaning of ‘Collateral’ in this agreement), this Security Interest is taken in the Collateral. |
| (f) | This Security Interest is a transfer by way of security of Collateral consisting of accounts and chattel paper (each as defined in the PPSA) which are not, or cease to be, Revolving Assets. |
| (g) | To the extent any Collateral is not transferred, this Security Interest is a charge. If for any reason it is necessary to determine the nature of this charge, it is a floating charge over Revolving Assets and a fixed charge over all other Collateral. |
| (h) | If pursuant to 16(a)(iv)(A) or 16(a)(iv)(B) the Secured Money of the relevant Modular Data Centre comprising the Collateral is reduced to $AU 0.00, then CBM agrees to release the Grantor of the Security Interest over the relevant Modular Data Centre comprising the Collateral. |
| (i) | Each Security Interest granted under this agreement is a continuing security until released by CBM or the termination of this agreement. |
| (j) | Restricted dealings: Each Grantor must not do, or agree to do, any of the following unless it is expressly permitted to do so by subclause (i): |
| (i) | create or allow another interest (including without limitation any Security Interest) in any Collateral other than a Permitted Security Interest (or if by law its creation cannot be restricted, the Grantor must procure that the holder of the Security Interest first enters into a priority arrangement in form and substance acceptable to the Secured Party); or |
| (ii) | dispose, or part with possession, of any Collateral except for in the ordinary course of business. |
| (k) | Permitted dealings: A Grantor may do any of the following in the ordinary course of the Grantor’s ordinary business: |
| (i) | create or allow another interest in, or dispose or part with possession of, any Collateral which is a Revolving Asset; and |
| (ii) | withdraw or transfer money from an account with a bank or other financial institution. |
| (l) | The parties acknowledge that this clause 16(l)16 may need to be adjusted to accommodate the requirements of a third-party lender. If such amendment is required, the parties will use best endevours to amend the terms of this clause to enable the Grantor to obtain further funding from a third party lender and provide for adequate security for CBM. |
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| 17. | Change in Law |
| (a) | If a Change in Law occurs, then despite any other provision of this agreement: |
| (i) | if the direct or indirect effect of the Change in Law is to increase CBM’s costs or to reduce amounts CBM receives in connection with the sale or supply of electricity to MIG, the parties must promptly meet and negotiate in good faith any revision of the charges under this agreement. |
| (b) | In this clause 17, Change in Law means the imposition of, change in (or change in application or official interpretation of) or removal of a Regulatory Requirement which has the effect, directly or indirectly, of increasing or decreasing CBM’s costs in connection with selling or supplying electricity to MIG. |
| 18. | Right to disconnect |
| (a) | CBM may disconnect supply to the MDC Connection Point: |
| (i) | if requested to do so by MIG; |
| (ii) | due to work, health and safety reasons as reasonably determined by CBM; |
| (iii) | if required by applicable Regulatory Requirement as reasonably determined by CBM; |
| (iv) | in an emergency as reasonably determined by CBM; |
| (v) | if MIG fails to pay CBM any amount that is validly due and owing on time, provided CBM has: |
| (A) | given MIG a written reminder notice requiring the outstanding amount to be paid within 10 business days of the date of the notice and MIG has failed to comply with the notice; and |
| (B) | following expiry of the notice period in clause 18(a)(v)(A), CBM has given MIG a disconnection notice requiring the outstanding amount to be paid within 10 business days of the date of the disconnection notice and MIG has failed to comply with the disconnection notice; or |
| (vi) | if otherwise entitled or required to do so under applicable Regulatory Requirements, including the Electricity Legislation. |
| (b) | CBM must notify MIG as soon as practicable, if CBM seeks to disconnect supply to the MDC Connection Point pursuant to subclause (a)(ii) and (a)(iii) of this clause. |
| 19. | Reconnection after disconnection |
| (a) | Where disconnection has occurred, both parties will work in good faith, with time being of the essence, to rectify the cause that is within their respective contractual responsibility and once the cause is rectified then, CBM will use best endeavours to restore connection within 10 business days. |
| (b) | CBM may refuse to arrange reconnection and may terminate this agreement if permitted under the Regulatory Requirements, including the Electricity Legislation (such as where the circumstances leading to the disconnection of the MDC Connection Point have not been rectified). |
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| 20. | Green products |
| (a) | The parties acknowledge and agree that CBM is entitled to any Green Products created in connection with the Condong Power Station and the supply and sale of electricity to MIG under this agreement. |
| (b) | MIG may, at any time during the Supply Term, request in writing to purchase any Green Products at market price. |
| (c) | Unless CBM has sold the Green Products before the receipt of MIG’s request under 20(b), it must sell Green Products to MIG where requested under clause 20(b). |
| 21. | insurance |
| (a) | CBM must ensure insurance is effected and maintained in respect of Condong Connection Infrastructure as required by Schedule 5 (or otherwise approved by the parties), and comply with its obligations under the insurance policies, including to disclose information. |
| (b) | MIG must ensure insurance is effected and maintained in respect of MDC Connection Infrastructure and the Modular Data Centre as required by Schedule 5 (or otherwise approved by the parties), and comply with its obligations under the insurance policies, including to disclose information. |
| (c) | Within 10 Business Days after a request from another party, CBM and MIG (as applicable) must provide the requesting party with certified copies of the certificates of currency for the insurance policies that it is required to effect and maintain in accordance with clause 21(a). The certificates of currency must contain sufficient information to verify that the insurance complies with this clause and Schedule 5. |
| 22. | Retailer of last resort |
| (a) | If CBM ceases to supply electricity, MIG acknowledges and agrees that a retailer of last resort will not be automatically appointed for MIG. |
| (b) | Should there be a retailer of last resort event, CBM agrees to assist MIG in establishing a connection allowing MIG to be supplied by a third party retailer. |
| 23. | Default and termination |
| 23.1 | Default |
If a party (the Defaulting Party) has committed a Default, the other party (the Non-Defaulting Party) may serve a written notice (the Default Notice) on the Defaulting Party specifying the nature of the Default and that it is a Default Notice under this clause 23.1.
| 23.2 | Financial Default |
| (a) | Upon receipt of a Default Notice in the case of a Financial Default, the Defaulting Party has 5 Business Days to rectify that Default. |
| (b) | If the Financial Default is not remedied within the period specified in clause 23.2(a), the Non-Defaulting Party may (without prejudice to its other rights and remedies), at its sole discretion: |
| (i) | terminate this agreement by not less than 10 Business Days’ written notice to the Defaulting Party and clause 22.5 will apply; or |
| (ii) | suspend all or any of its obligations and liabilities under this agreement by giving a further notice to the Defaulting Party, and in such case those obligations and liabilities will be relieved until the Default is remedied to the satisfaction of the Non-Defaulting Party. |
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| 23.3 | Non-Financial Default |
| (a) | Within 5 Business Days of receipt of a Default Notice for a Non-Financial Default (or such longer period as the Non-Defaulting Party may agree), the Defaulting Party must deliver to the Non-Defaulting Party a remediation plan (Remedy Plan) setting out: |
| (i) | to the extent that the Default is remediable, the actions to be taken by the Defaulting Party to remedy the Non-Financial Default and corresponding deadlines; and |
| (ii) | to the extent that the Non-Financial Default is not remediable, the actions to be taken by the Defaulting Party to mitigate the adverse effects of the Non- Financial Default and to ensure that the Non-Financial Default does not recur, |
(together, the Remedial Actions); and
| (iii) | a program for performance of the Remedial Actions. |
| (b) | Within the 5 Business Days referred to in clause 23.3(a), the Defaulting Party may request the Non-Defaulting Party to approve an extension of the time of up to an additional 15 Business Days within which the Defaulting Party must deliver a Remedy Plan under clause 23.3(a), by giving the Non-Defaulting Party a notice in writing stating the extension requested and the reasons the extension is requested. The Non-Defaulting Party must not unreasonably withhold its consent to such a request or impose unreasonable conditions on its consent. |
| (c) | The Remedy Plan must be reasonable having regard to the Non-Financial Default, whether or not the Defaulting Party is required to procure a long lead item, its impact on the Non-Defaulting Party and the nature of the Remedial Actions. |
| (d) | The Defaulting Party must: |
| (i) | promptly make any amendments to the Remedy Plan reasonably requested by the Non-Defaulting Party and resubmit the amended plan to the Non- Defaulting Party; and |
| (ii) | diligently comply with a Remedy Plan. |
| (e) | If the Defaulting Party fails to: |
| (i) | deliver a Remedy Plan, or make any amendments to the plan requested by the Non-Defaulting Party in accordance with this clause 23; or |
| (ii) | diligently comply with a Remedy Plan, |
then:
| (iii) | the Non-Defaulting Party may serve written notice on the Defaulting Party specifying the nature of the failure and the Defaulting Party has 10 Business Days to rectify that failure; and |
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| (iv) | if the failure is not remedied within the period specified in clause 23.3(e)(iii), the Non-Defaulting Party may (without prejudice to its other rights and remedies) at its sole discretion do any one or more of the following, with immediate effect upon notice to the Defaulting Party: |
| (A) | terminate this agreement by written notice to the Defaulting Party and clause 22.6 will apply; or |
| (B) | suspend all or any of its obligations and liabilities under this agreement by giving a further written notice to the Defaulting Party, and in such case those obligations and liabilities will be relieved until the Default is remedied to the satisfaction of the Non-Defaulting Party (acting reasonably). |
| 23.4 | Insolvency Event |
| (a) | A party may at any time by notice in writing to the other party, terminate this agreement with effect from the date nominated in the notice if an Insolvency Event occurs in relation to the other party. |
| (b) | If the document is terminated under this clause, the party that is subject to the Insolvency Event is deemed to be the Defaulting Party for the purposes of clause 23.8 and 23.8 and liable to pay an Early Termination Amount pursuant to those clauses. |
| 23.5 | Disconnection of MIG |
| (a) | If MIG has been disconnected under clause 18 and MIG has not satisfied the requirements for reconnection under clause 19, CBM may terminate this agreement by giving 10 Business Days written notice to MIG. |
| (b) | If this agreement is terminated under this clause, MIG is deemed to be the Defaulting Party for the purposes of clauses 23.7 and 23.8 and liable to pay an Early Termination Amount pursuant to those clauses. |
| 23.6 | MIG termination |
| (a) | If the parties do not come to an agreement on future project contemplated in the Heads of Agreement between Quinbrook Investments and MIG within 12 months of Commencement Date of this agreement that delivers on the average delivered electricity price across the project portfolio of US$ 40/MWh, MIG may terminate this agreement by giving 12 months prior written notice to CBM. |
| (b) | If this agreement is terminated under clause 23.6(a) MIG will offer to purchase the transformers of the Condong Infrastructure at cost, as determined at the date of termination based on an externally verified fair market price. |
| 23.7 | Payment on early termination |
| (a) | If this agreement is terminated as a result of a Default by a party, any amount owed by one party to the other party under this agreement arising prior to the Early Termination Date must be paid by the applicable party. |
| (b) | If this agreement is terminated by the Non-Defaulting Party as a result of a Default by the Defaulting Party, then the Defaulting Party must pay the Early Termination Amount to the Non-Defaulting Party within 30 days of the Early Termination Date, unless clause 23.7(c) applies (in which case the Defaulting Party must pay the Early Termination Amount within 10 Business Days of the dispute being resolved, together with interest calculated at the Default Interest Rate). |
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| (c) | If the Defaulting Party gives notice that it disputes the Non-Defaulting Party’s determination of the Early Termination Amount by the date that is 15 Business Days following the Early Termination Date, the matter must be resolved in accordance with clause 25. |
| (d) | The parties acknowledge and agree that the Early Termination Amount is a genuine pre-estimate of the loss likely to be suffered by the Non-Defaulting Party determining the Early Termination Amount in the event of termination as a result of a Default by the Defaulting Party. |
| 23.8 | Calculation of the Early Termination Amount |
| (a) | The Early Termination Amount will be determined by the Non-Defaulting Party, who will act in good faith and use commercially reasonable procedures in order to produce a commercially reasonable result. The Early Termination Amount will be determined as at the Early Termination Date or, if that would not be commercially reasonable, as of the date or dates following the Early Termination Date as would be commercially reasonable. |
| (b) | In determining the Early Termination Amount, the Non-Defaulting Party may consider any relevant information, including, without limitation, one or more of the following types of information: |
| (i) | quotations (either firm or indicative) for replacement transactions supplied by one or more third parties that will take into account the creditworthiness of the Non-Defaulting Party at the time the quotation is provided; |
| (ii) | information consisting of relevant market data in the relevant market supplied by one or more third parties including, without limitation, relevant rates, prices, yields, yield curves, volatilities, spreads, correlations or other relevant market data in the relevant market; or |
| (iii) | any information known or supplied by the Non-Defaulting Party including the historical load and anticipated load of MIG over the balance of the Supply Term. |
| (c) | The Non-Defaulting Party will consider, taking into account the standards and procedures described in this clause 23.8, quotations or relevant market data unless the Non-Defaulting Party reasonably believes in good faith that such quotations or relevant market data are not readily available or would produce a result that would not satisfy those standards. When considering such information, the Non-Defaulting Party may include costs of funding, to the extent costs of funding are not and would not be a component of the other information being utilised. Third parties supplying quotations or market data may include, without limitation, dealers in the electricity and environmental products markets, brokers and other sources of market information. |
| (d) | The Non-Defaulting Party must consider in calculating an Early Termination Amount any loss or cost incurred in connection with re-establishing any arrangement similar to this agreement (or any gain resulting from such re-establishment). |
| (e) | Commercially reasonable procedures used in determining an Early Termination Amount may include, but are not limited to, the following: |
| (i) | application to relevant market data from third parties or information provided of pricing or other valuation models that are, at the time of the determination of the Early Termination Amount, used by the Non-Defaulting Party in the regular course of its business in pricing or valuing transactions between the Non-Defaulting Party and unrelated third parties that are similar to the subject matter of this agreement; and |
| (ii) | application of different valuation methods for transactions based on their type, complexity or size. |
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| 24. | Force majeure |
| 24.1 | Force Majeure defined |
| (a) | In this agreement, Force Majeure means, with respect to an Affected Party, any event or circumstance or combination of events or circumstances occurring after the Commencement Date in that: |
| (i) | is not within the reasonable control of the Affected Party; |
| (ii) | by the exercise of due diligence and Good Industry Practice, the Affected Party is not able to prevent, overcome or remedy; and |
| (iii) | causes or results in the prevention or delay of the Affected Party from performing any of its obligations under this agreement. |
| (b) | Provided the requirements in paragraph (a) are satisfied, Force Majeure includes any of the following events: |
| (i) | acts of God, including cyclone, flood, earthquake, tsunami and bushfire; |
| (ii) | fire or explosion; |
| (iii) | lightning strike which damages the Modular Data Centre or the Condong Power Station; |
| (iv) | a pandemic or epidemic, or quarantine by order of a Regulatory Authority; |
| (v) | war, invasion, act of foreign enemies, terrorism, riots, civil commotion, malicious damage, sabotage or revolution and |
| (vi) | industrial action or disputes which affected any Australian State or Territory, Australia generally, a country of origin of MDC supply and is not directed at the Affected Party, |
but only to the extent it was not caused by an act or omission of the Affected Party.
| 24.2 | Exclusions |
Notwithstanding clause 24.1, the following will not constitute Force Majeure:
| (a) | lack of funds, financial hardship or the inability of a party or any of its related bodies corporate to make a profit or achieve a satisfactory rate of return resulting from performance or failure to perform its obligations under this agreement; or |
| (b) | failure or inability of any person to pay any sum due and payable. |
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| 24.3 | Non-performance excused |
| (a) | Non-performance (in whole or in party) as a result of Force Majeure by an Affected Party of any obligation or condition required by this agreement to be performed: |
| (i) | will be excused during the time and to the extent that Force Majeure prevents such performance, wholly or in part; and |
| (ii) | will not give rise to any liability to the other party for any liability of any kind arising out of, or in any way connected with that non-performance. |
| (b) | Clause 24.3(a) does not apply in respect of an obligation of an Affected Party to pay money. |
| 24.4 | Notification and diligence |
If it wishes to be entitled to the benefit of clause 24.3(a), an Affected Party must:
| (a) | notify the other party (Non-Affected Party) as soon as reasonably possible: |
| (i) | of reasonably full particulars of the Force Majeure; and |
| (ii) | the date of commencement of the Force Majeure and, to the extent reasonably possible, an estimate of the period of time required to enable it to resume full performance of its obligations; |
| (b) | keep the Non-Affected Party informed of any material changes or developments to any of the matters referred to in clause 24.4(a); |
| (c) | use all reasonable diligence and means consistent with Good Industry Practice to remedy or abate the Force Majeure as expeditiously as possible; |
| (d) | resume performance as expeditiously as possible after termination of the Force Majeure or after the Force Majeure has abated to an extent that permits resumption of performance (in whole or in part); and |
| (e) | notify the Non-Affected Party when the Force Majeure has terminated or abated to an extent that permits resumption of performance (in whole or in part) to occur. |
| 24.5 | Costs of Force Majeure |
An Affected Party must bear its own costs incurred arising out of or in connection with Force Majeure or the consequences of Force Majeure and the Non-Affected Party is not liable for, or in connection with, any claim (and the Affected Party is not entitled to make any claim) arising out of or in connection with Force Majeure or the consequences of Force Majeure.
| 24.6 | Termination |
If as a result of a Force Majeure, a party is relieved of its obligations under this agreement in accordance with clause 24.4 for a continuous period of not less than 12 months during the Supply Term, then the Non-Affected Party may terminate this agreement by giving not less than 20 Business Days written notice to the Non-Affected Party in which case no Early Termination Amount will be payable by either party to the other party.
| 25. | Dispute resolution |
| (a) | Subject to clause 25(e), if a dispute arises in connection with this agreement, either party may at any time give written notice, (the Dispute Notice) to the other setting out brief particulars of the matter and requesting that a meeting take place to seek to resolve the dispute. |
| (b) | Representatives from each party, who have sufficient seniority and legal authority to settle a matter requiring resolution, must meet within seven days of the Dispute Notice and in good faith use reasonable endeavours to resolve the dispute. |
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| (c) | If the dispute is not resolved within 28 days of the Dispute Notice, either party may pursue its rights at law. |
| (d) | Subject to clause 12.2, during a dispute, the parties will, so far as it is reasonably practicable, continue to perform and comply with their respective obligations under this agreement to the extent that such obligations are not the subject of that dispute. |
| (e) | Clauses 25(a) and 25(b) do not restrict or limit the right of either party to commence proceedings of an interlocutory nature. |
| (f) | The parties acknowledge that under the Electricity Legislation, MIG may also be able to refer a dispute under this agreement, or generally in relation to the supply or sale of electricity by CBM, to the relevant electricity ombudsman or regulator for investigation. |
| 26. | Warranties |
| (a) | Each party represents and warrants to the other party that: |
| (i) | it is incorporated and validly exists in accordance with the Regulatory Requirements of its place of incorporation; |
| (ii) | the execution of this agreement and the performance of its obligations under this agreement have been duly authorised by it and do not contravene any Regulatory Requirement or agreement binding on it or its constitution; |
| (iii) | this agreement is valid, binding and enforceable in accordance with its terms; |
| (iv) | as at the date of execution of this agreement, no Insolvency Event or other Default has occurred in relation to it; and |
| (v) | it enters and performs this agreement on its own account and not as trustee for, or nominee or agent of, any other person. |
| (b) | Nothing in this agreement is to be read as excluding, restricting or modifying the application of any legislation which by Regulatory Requirements cannot be excluded, restricted or modified. |
| 27. | General provisions |
| 27.1 | Entire agreement |
This agreement constitutes the entire agreement of the parties about its subject matter and supersedes all previous agreements, understandings and negotiations on that subject matter.
| 27.2 | No reliance |
Each party acknowledges that in entering into this agreement it has not relied on any representations or warranties about its subject matter except as expressly provided by the written terms of this agreement.
| 27.3 | Variation |
This agreement may only be amended or varied by a further agreement in writing signed by all the parties.
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| 27.4 | Waiver |
| (a) | A party waives a right under this agreement only by written notice in which it says that it waives that right. If a waiver is validly given, it is limited to the specific instance to which it relates and to the specific purpose for which it is given and is not an implied waiver of any other obligation or breach. |
| (b) | A party’s failure or omission to enforce or require strict or timely compliance with any provision of this agreement does not affect or impair that provision, or the right of that party to avail itself of the remedies it may have in respect of any breach of that provision. |
| 27.5 | Severability |
| (a) | Each provision of this agreement is severable and independent. |
| (b) | If all or any part of a provision of this agreement is invalid or unenforceable in any jurisdiction, that part or provision will be deemed to be severed for the purposes of that jurisdiction and will not affect the validity or enforceability of the remaining provisions or that provision in any other jurisdiction. |
| 27.6 | Indemnities |
| (a) | Each indemnity in this agreement is a continuing obligation, separate and independent from the other obligations of the parties, and survives termination, completion and expiry of this agreement. |
| (b) | It is not necessary for a party to incur expense or to make any payment before enforcing a right of indemnity conferred by this agreement. |
| 27.7 | Survival |
Clauses 1, 12, 13, 15.5, 23, 25, 27 and any other clauses to the extent that they are necessary for the interpretation or effectiveness of these clauses, survive termination or expiry of this agreement.
| 27.8 | Assignment and Change of control |
| (a) | CBM may assign or novate its rights and obligations under this agreement with MIG’s prior written consent (such consent not to be unreasonably withheld or delayed). |
| (b) | The consent of MIG must not be withheld or delayed under clause 27.8(a) if: |
| (i) | the assignee is, in the reasonable opinion of MIG, legally, financially and technically capable of performing CBM’s obligations under this agreement; and |
| (ii) | the assignee enters into a deed of covenant with MIG by which the assignee covenants to be bound by the terms of this agreement. |
| (c) | MIG may assign or novate its rights and obligations under this agreement with CBM’s prior written consent (such consent not to be unreasonably withheld or delayed). |
| (d) | The consent of CBM must not be withheld or delayed under clause 27.8(c) if: |
| (i) | the assignee is, in the reasonable opinion of CBM, legally, financially and technically capable of performing MIG’s obligations under this agreement; and |
| (ii) | the assignee enters into a deed of covenant with CBM by which the assignee covenants to be bound by the terms of this agreement. |
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| (e) | MIG must not undergo a Change of Control without obtaining the prior written consent of CBM which must not be unreasonably withheld or delayed. |
| (f) | It shall be reasonable for CBM to withhold or delay its consent to a Change of Control under clause 27.8 where, in the reasonable opinion of CBM, the Change of Control is likely to have material adverse effect on MIG’s legal, financial and technical capability to perform its obligations under this agreement. |
| 27.9 | Confidentiality |
| (a) | Both parties must ensure that all Confidential Information exchanged between the parties remains confidential. |
| (b) | Neither party may disclose Confidential Information to any person except: |
| (i) | with the consent of the party who supplied the information; or |
| (ii) | in the case of CBM, to a Regulatory Authority, including the State government of New South Wales; |
| (iii) | if required to do so by a Regulatory Requirement or by a stock exchange; or |
| (iv) | to its officers, employees, auditors, advisors, investors and limited partners (or those of a related body corporate) for a purpose which is connected with this agreement. |
| 27.10 | Notices |
| (a) | All notices must be in writing and sent to the following postal address and email |
| (b) | address for notices: |
| CBM | ||
| Address: | Suite 1.303, 15-17 Capri on via Roma, Surfers Paradise QLD 4217 | |
| Attention: | Cape Byron Management | |
| Email: | anthony.lount@cbpower.com.au; ea@quinbrook.com; br@quinbrook.com | |
| MIG: | ||
| Address: | Level 5, 97 Pacific Highway, North Syndey, NSW 2060 | |
| Attention: | James Manning / Chief Legal Officer / Hetal Majithia | |
| Email: | james@mawsoninc.com; legal@mawsoninc.com / hetal@mawsoninc.com |
| (c) | Notices in relation to termination or breach must not be sent by email. |
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| (d) | Notices sent: |
| (i) | by hand, are taken to be received when delivered; |
| (ii) | by email, are taken to be received at the time it was received by the recipient; |
| (iii) | by mail, are taken to be received on the third day after mailing; and |
| (iv) | by fax; are taken to be received when the sender’s fax machine issues a successful transmission report. |
| 27.11 | Costs and stamp duty |
Each party must bear its own legal costs in respect of the preparation, completion and execution of this agreement.
| 27.12 | Governing law |
This agreement is governed by the law in force in the jurisdiction of the New South Wales and each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of that place.
| 27.13 | Counterparts |
This agreement may be signed in any number of counterparts and by the parties in separate counterparts.
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schedule 1
CPI Escalation
| 1. | CPI Calculation |
The PPA Price be escalated on each CPI Review Date (as defined in this Schedule) in accordance with the following formula:
Pn = P1 x CPI2 / CPI1
Where:
Pn = the CPI adjusted PPA Price which will apply from the CPI Review Date;
P1= the unescalated PPA Price;
CPI is the “All groups CPI; Australia” ABS Series ID A2325846C;
CPI2 = the CPI as at the relevant CPI Review Date; and
CPI1= the CPI as at 1 January 2021 (ABS December 2020 Quarter value).
For the avoidance of doubt, where the ratio of CPI2 to CPI1 is less than 1 (one), the CPI ratio for the purposes of this agreement will be deemed to be 1 (one).
| 2. | CPI Review date |
In respect of the PPA Price, each of the following dates which occur during the Supply Term will be a CPI Review Date:
| (a) | 1 January 2021 for the base date of the PPA Price; and |
| (b) | each anniversary of 1 January 2021 thereafter. |
Where in both cases the ABS Series value from the preceding December quarter is to be used.
35
schedule 2
Net BTC Revenue and BTC Floor Price Calculation
| 1. | Net BTC Revenue Calculation |
Net BTC Revenue represents the profit earned by MIG at the Modular Data Centre in accordance with the following formula:
| Net_BTC_Revenue = | BTC_Revenue | |
| minus Electricity_Cost | ||
| minus Depreciated_Server_Cost | ||
| minus Site_Employment_Cost |
Where:
BTC_Revenue = BTC_Price x BTC_Quantity
BTC_Price = a price in Australian dollars calculated by multiplying the prevailing monthly average USD price per Bitcoin, as displayed on a globally recognised exchange by the prevailing monthly average AUD to USD exchange rate, as displayed on a globally recognised exchange.
BTC_Quantity = the monthly quantity of bitcoin block rewards and transaction fees mined by MIG at the Modular Data Centre.
Electricity_Cost = the monthly Energy Charge payable by MIG.
Depreciated_Server_Cost = the agreed monthly depreciation expense for the mining server equipment in the Modular Data Centre, assuming depreciation on a straight line basis over the 2 years. MIG will share this information on an open book basis with CBM that is consistent with MIG’s internal and audited accounts.
Site_Employment_Cost = the monthly direct labour cost, without markup (justified by MIG on an open book basis) for permanent on-site staffing dedicated to operate and manage the Modular Data Centre.
Calculated BTC Floor Price
The BTC Floor Price is calculated at the end of the Billing Period in accordance with the following formula:
BTC_Floor_Price = BTC_Floor_Price_Base x Difficulty Adjustment
Where:
BTC_Floor_Price_Base = US$ 10,686 per bitcoin.
Difficulty Adjustment = Difficulty Current divided by Difficulty Base.
Difficulty_Current = The prevailing market index of difficulty, as listed on https://www.blockchain.com/charts/difficulty (or another similar industry public source if this is not available), based on the most recent difficulty level immediately prior to the end of the Billing Period.
Difficulty_Base = The prevailing market index of difficulty, as listed on https://www.blockchain.com/charts/difficulty (or another similar industry public source if this is not available), and set on 19 October 2021, at 20082460130831.
36
schedule 3
Site
37
schedule 4
Infrastructure Diagram
38
SCHEDULE 5
Insurances
To be provided on an annual basis
39
SCHEDULE 6
Peppercorn Site Licence
To be provided
40
SCHEDULE 7
Marginal Cost of Production
The marginal cost of production is derived by multiplying the existing average annual delivered fuel price of AU$50/t for woodchip by its electricity conversion factor of 1.4t of woodchip per MWh exported. This deliver a power price of $70/MWh.
If Condong Power Station obtains its approvals to use recovered timber fuels that are not defined as “eligible waste fuels” under Section 3 of the NSW Energy from Waste Policy Statement the electricity conversion factor will remain the same but the annual average delivered fuel price is expected to reduce so that the marginal cost of production reduces by $20/MWh or more.
41
EXECUTED as an agreement
Each person who executes this agreement on behalf of a party under a power of attorney declares that he or she is not aware of any fact or circumstance that might affect his or her authority to do so under that power of attorney.
| signed for Cape Byron MANAGEMENT Pty Ltd by its duly |
/s/ David Scaysbrook | |
| authorised officer, in the presence of: | Signature of officer | |
| /s/ Emmalene Arias | David Scaysbrook | |
| Signature of witness | Name | |
| Emmalene Arias | ||
| Name |
| signed for MIG NO.1 pty ltd by its |
/s/ James Manning | |
| duly authorised officer, in the presence of: | Signature of officer | |
|
/s/ Hetal Majithia |
James Manning | |
| Signature of witness | Name | |
| Hetal Majithia | ||
| Name |
42
Exhibit 99.1
Mawson Infrastructure Group Inc. announces first Australian site powered by 100% renewable
energy in partnership with Quinbrook Infrastructure Partners
Mawson to deploy across the Quinbrook Australia and US portfolio in late 2021 and 2022
Sydney, Australia — October 22nd, 2021 — Mawson Infrastructure Group Inc. (NASDAQ:MIGI) (“Mawson”), a digital infrastructure provider, is pleased to announce its first Australian site will be online in October 2021, powered by 100% renewable energy, in partnership with Quinbrook Infrastructure Partners (“Quinbrook”).
Mawson and Quinbrook have partnered on the initial 20MW site in northern New South Wales, Australia. This initial site allows Mawson to establish a strategic operation in Australia. Mawson will be deploying a new generation Modular Data Centre (MDC) specifically designed for Australian conditions at this facility, which will add approximately 0.4 EH to global operations.
Beyond the initial 20MW project, Mawson and Quinbrook have identified a pipeline of renewable energy assets across the Quinbrook portfolio in Australia and the US where future sites are expected to be jointly developed.
James Manning, CEO and Founder of Mawson, said, “Quinbrook’s values, experienced team and diverse operations made them a logical partner. Our partnership reflects our joint view that renewable energy will be key to future data centre infrastructure. Mawson is seeking to identify renewable energy projects which lead the transition to a decarbonized society, with a key focus on sustainable bitcoin mining. Quinbrook’s deep experience in energy and focus on ESG investment principles made this first project an obvious choice.”
About Mawson Infrastructure
Mawson Infrastructure is a digital infrastructure provider, with diversified operations across Cryptocurrency Mining and Digital Asset Management. Headquartered in Sydney, Australia and operating across the USA and Australia, Mawson Infrastructure’s mission is to build a bridge between the rapidly emerging digital asset industry and traditional capital markets, with a strong focus on shareholder returns. Mawson matches energy infrastructure with next-generation mobile data centre solutions, enabling the proliferation of blockchain technology.
For more information, visit: www.mawsoninc.com
About Quinbrook Infrastructure Partners
Quinbrook Infrastructure Partners is a specialist investment manager focused exclusively on lower carbon and renewable energy infrastructure investment and operational asset management. Quinbrook’s global investment and portfolio company teams are actively developing and constructing a portfolio exceeding 17GW of onshore wind, solar PV, reserve peaking power, battery storage projects, grid support and infrastructure, Virtual Power Plants and Community Energy Networks across the US, UK and Australia.
For more information, visit: www.quinbrook.com
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
Mawson cautions that statements in this press release that are not a description of historical fact are forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995. Forward-looking statements may be identified by the use of words referencing future events or circumstances such as “expect,” “intend,” “plan,” “anticipate,” “believe,” and “will,” among others. Because such statements are subject to risks and uncertainties, actual results may differ materially from those expressed or implied by such forward-looking statements. These forward-looking statements are based upon Mawson’s current expectations and involve assumptions that may never materialize or may prove to be incorrect. Actual results and the timing of events could differ materially from those anticipated in such forward-looking statements as a result of various risks and uncertainties, which include, without limitation, the possibility that Mawson’s need and ability to raise additional capital, the development and acceptance of digital asset networks and digital assets and their protocols and software, the reduction in incentives to mine digital assets over time, the costs associated with digital asset mining, the volatility in the value and prices of cryptocurrencies and further or new regulation of digital assets. More detailed information about the risks and uncertainties affecting Mawson is contained under the heading “Risk Factors” included in Mawson’s Annual Report on Form 10-K filed with the SEC on March 1, 2021 and Mawson’s Quarterly Report on Form 10-Q filed with the SEC on August 10, 2021, and in other filings Mawson has made and may make with the SEC in the future. One should not place undue reliance on these forward-looking statements, which speak only as of the date on which they were made. Because such statements are subject to risks and uncertainties, actual results may differ materially from those expressed or implied by such forward-looking statements. Mawson undertakes no obligation to update such statements to reflect events that occur or circumstances that exist after the date on which they were made, except as may be required by law.
Investor Contact:
Brett Maas
646-536-7331
brett@haydenir.com
www.haydenir.com