Power Purchase Agreement

General Terms & Conditions

Version dated 26 February 2025

1. CONDITIONS PRECEDENT

1.1 If the Conditions Precedent are satisfied, Birdwood Business Finance will install, own and operate a Renewable Energy System(s) on the Site(s) which will generate electricity which it will sell to the Client for use at the Premises.

1.2 Each party bears its own costs for completion of the Conditions Precedent, and must provide any assistance reasonably requested by the other in relation to satisfying those Conditions.

1.3 The Conditions Precedent are for the benefit of Birdwood Business Finance and any part of the preparations may be waived by Birdwood Business Finance in its absolute discretion.

1.4 Each party acknowledges that approvals and consents may be refused and any refusal is not a breach of any undertaking or this Agreement.

1.5 If the Conditions Precedent are not satisfied to Birdwood Business Finance’s satisfaction, Birdwood Business Finance may terminate this Agreement by written notice to the Client, releasing each party from its obligations under this Agreement.

2. GRANT OF LICENCE

2.1 Until the termination or expiry of this Agreement, the Client grants to Birdwood Business Finance an exclusive, irrevocable, royalty-free, sub-licencable licence to:

(a) install and operate the Renewable Energy System (and any Metering Devices) at the Premises;

(b) laydown material and equipment, including the Renewable Energy System (where the Renewable Energy System is being installed on land and not a rooftop); and

The Client also grants to Birdwood Business Finance and any of its contractors, or agents an on-going right of access to the Premises for the use and enjoyment of the licence granted in this clause 2.1, and for the operation, maintenance or repair of the Renewable Energy System, Metering Devices, and any associated connections in or out of such equipment. Birdwood Business Finance will endeavour to provide 24 hours’ notice prior to entering the Premises, except in the event of an emergency.

2.2 A refusal by the Client to allow Birdwood Business Finance or its contractors access to the Premises will be a breach of an essential condition of this Agreement.

2.3 Prior to installation of the Renewable Energy System at the Premises, the Client and Birdwood Business Finance will identify and agree upon the area of the Premises upon which the Renewable Energy System will be installed. If the Parties do not agree, then either party may terminate this Agreement by giving the other party 30 days’ notice in writing.

2.4 If the Premises are subject to a mortgage or charge, the Client must obtain unconditional consent to the licence set

out in clause 2.1 from the mortgagee or chargee.

3. INSTALLATION AND CONNECTION OF RENEWABLE ENERGY SYSTEM

3.1 Birdwood Business Finance will:

(a) at its cost, install the Renewable Energy System on the Site in accordance with this Agreement. Birdwood Business Finance may engage third parties to perform some or all of its responsibilities under this Agreement;

(b) ensure that the installation, maintenance and operation of the Renewable Energy System complies with Applicable Law, Australian standards, the National Construction Code and any permits and approval of any Authority, and

3.2 The Client will:

(a) provide information that is accurate and complete in all material respects;

(b) maintain in sound working order and not alter any electrical equipment to which the Renewable Energy System connects (for the avoidance of doubt, the Client is not expected nor permitted to maintain any part of the Renewable Energy System);

(c) not, and must ensure that others do not, interfere with or damage the Renewable Energy System or any connections in or out of the Renewable Energy System;

(d) not, and must ensure that others do not, install any other power generation, storage, optimisation or charging system at the Premises without the written consent of Birdwood Business Finance;

(e) not, and must ensure that others do not, turn any part of the Renewable Energy System off or disconnect its power source;

(f) not, and must ensure that others do not, obscure the solar resource;

(g) appoint and authorise the installation contractor nominated by Birdwood Business Finance to be 'principal contractor' managing the Site in respect of the installation activities, if requested by Birdwood Business Finance or required under Applicable Law;

(h) grant access to the Premises and other reasonable assistance to Birdwood Business Finance; and

(i) during the installation until expiry of the Supply Term, provide appropriate wireless wide area network (WAN) internet access at the Premises which is adequate for Birdwood Business Finance and it contractors to access inverter monitoring portals related to the Renewable Energy Systems.

3.3 The Client acknowledges and agrees that Birdwood Business Finance or its contractors may interrupt the supply of electricity to the Premises while installing the Renewable Energy System.

3.4 The Client acknowledges and agrees that the undertakings in clause 3.2 are essential conditions to this Agreement.

3.5 The Client represents and warrants that on the Execution Date and on the date the Renewable Energy System is installed that:

(a) the Premises are safe and that Birdwood Business Finance and its contractors will be free from harm when at the Premises;

(b) it holds all Approvals from the relevant Authority to install the Renewable Energy System at the Premises; and

(c) the roof of the building at the Premises upon which the Renewable Energy System will be installed (if any) is structurally sound to accommodate the load of the Renewable Energy System, including the base and frame (and has obtained a structural engineering report to support this representation).

3.6 Birdwood Business Finance may terminate this Agreement if, on the date of installation, the Premises are no longer fit-for-purpose for the installation of the Renewable Energy System, or if any of the representations and warranties given by the Client in clause 3.5 are not true.

3.7 The parties acknowledge that connection to a Distribution Network:

(a) is reliant on obtaining the relevant Approvals and on work to be performed by the Distribution Network, which are outside of control of the parties;

(b) may take more than six months, and that any delay in connection is not a breach of any undertaking by a party to this Agreement; and

(c) may be refused, or approved with conditions, and that any refusal or conditional approval is not a breach of any undertaking by a party to this Agreement. Where the connection is refused, this Agreement will automatically terminate at no fault of either party.

3.8 Where the Client is the Landowner and the Premises are, or will be, leased or licensed to a third-party tenant (either the Tenant identified in the Key Terms or another person), the Landowner:

(a) is responsible for the acts and omissions of the Tenant; and

(b) must ensure that in each and every lease or licence agreement with a Tenant there is a provision that permits the Tenant to pay Birdwood Business Finance directly on behalf of the Client for amounts owing under this Agreement, for example:

[Landlord] has entered into a power purchase agreement with Birdwood Business Finance Pty Ltd (ACN 623 989 622) under which Birdwood Business Finance Pty Ltd will supply power from solar systems installed at the [Premises]. [Landlord] may from time-to-time direct [Tenant] to pay Birdwood Business Finance Pty Ltd on its behalf for any electricity generated by [Tenant], rather than requiring [Tenant] to make such payment to [Landlord].

3.9 Where the Landowner and/or the Tenant of the Premises changes while the Client has obligations in connection with this Agreement, the Client:

(a) must provide Birdwood Business Finance with at least 30 days written notice of the potential change in the Landowner and/or Tenant;

(b) must, before the Landowner and/or Tenant of the Premises changes (for Tenants - only if a new Tenant is known), obtain a signed deed of novation (in the form reasonably requested by the Birdwood Business Finance) from the incoming Landowner and/or Tenant which contractually binds the incoming Landowner and/or Tenant to the terms and conditions of this Agreement, and provide a copy to Birdwood Business Finance; and

(c) will indemnify and hold harmless Birdwood Business Finance from and against, all Claims in connection with the change of the Landowner and/or Tenant of the Premises.

4. SUPPLY TERM

4.1 The Supply Term under this Agreement commences on the Supply Start Date and ends on the earlier of:

(a) the transfer of ownership of the Renewable Energy System from Birdwood Business Finance to the Landowner or the Landowner’s nominee; or

(b) the removal of the Renewable Energy System from the Premises by Birdwood Business Finance, or

5. OPERATION OF RENEWABLE ENERGY SYSTEM

5.1 Subject to clause 5.3, for the duration of the Supply Term Birdwood Business Finance must at its cost:

(a) operate and maintain the Renewable Energy System;

(b) repair the Renewable Energy System; and

5.2 Notwithstanding clauses 5.1 and 5.2, Birdwood Business Finance is not in any way responsible for the maintenance or repair of the Premises or any equipment or infrastructure owned by the Client unless damage is caused by the negligence or material breach of Birdwood Business Finance. If the Premises are damaged so that the operation of the Renewable Energy System and/or a party’s ability to accept the electricity produced by the Renewable Energy System are materially impaired, the Client shall promptly:

(a) at its cost, repair and restore the Premises to its pre-existing condition;

(b) at its cost, relocate the Renewable Energy System to similar Premises, or

5.3 If any repair or replacement to the Renewable Energy System is required as a result of the acts or omissions, or breach of any part of this Agreement by the Client, Tenant or other person (Additional Services), the Client must pay to Birdwood Business Finance reasonable costs incurred by Birdwood Business Finance in performing the Additional Services, plus a margin of 15%.

5.4 If any repair is required as a result of negligence or material breach of any part of this Agreement by Birdwood Business Finance, it will within a reasonable time, make good any damage to the Premises.

6. INSURANCE

6.1 From the execution date to the expiry of the Supply Term, tach party and their contractors must maintain public liability insurance for an amount of $5,000,000 (five million dollars) per occurrence and must provide evidence in the form of a certificate of currency to another party within a reasonable time of a request.

6.2 Birdwood Business Finance must maintain workers compensation insurance as required by law and require each of its subcontractors to do so.

6.3 Birdwood Business Finance must maintain suitable insurance in relation to the installation of, and damage to, the Renewable Energy System.

6.4 The Client must take reasonable actions to protect the Renewable Energy System from risk and from harm and maintain suitable insurance in relation to damage to the Renewable Energy System.

7. SUPPLY AND PURCHASE OF SOLAR ELECTRICITY

7.1 Basis of Payment

(a) Birdwood Business Finance will sell and the Client will purchase the Generated Quantity under the terms of this Agreement.

(b) The Generated Quantity will be calculated by reference to the Metering Device, or to data recorded by the solar inverters.

(c) If a Fixed Rate option has been selected in the Key Terms, the Client agrees to pay the Fixed Rate for the Generated Quantity. If a Subscription Rate option has been selected in the Key Terms, the Client agrees to pay the Subscription Rate for the Generated Quantity.

(d)

7.2 Quality and continuity of supply

The Client:

(a) acknowledges that the quantity and quality of the electricity generated by the Renewable Energy Systems may fluctuate;

(b) acknowledges and agrees that where the Renewable Energy System has been turned off (other than by Birdwood Business Finance), then Birdwood Business Finance may bill the Client the Subscription Rate (where that option has been selected in the Key Terms) or an amount it considers would have been the Generated Quantity multiplied by the Fixed Rate for that period (if the Fixed Rate option is selected in the Key Terms).

(c) acknowledges and agrees that in the event of a communication failure but where the Renewable Energy System remains operational (such as due to a stressed network), then Birdwood Business Finance may bill the Client the Subscription Rate (where that option has been selected in the Key Terms) or an amount it considers would have been the Generated Quantity multiplied by the Fixed Rate for that period (if the Fixed Rate option is selected in the Key Terms).;

(d) accepts that Birdwood Business Finance does not guarantee any minimum volume for the Generated Quantity; and

(e) will notify Birdwood Business Finance of any potential or actual loss of quality or continuity of supply from the Renewable Energy Systems as soon as practicable.

8. OWNERSHIP

8.1 Birdwood Business Finance owns the Renewable Energy System. Each party acknowledges and agrees that the Renewable Energy System is not a fixture to the Premises or the Site and the parties will not treat it as one.

8.2 The Client is not aware of any lease, mortgage, security interest or other interest in or lien upon the Premises that could attach to the Renewable Energy System.

8.3 The Client holds title to the Premises, lease, licence or other property interest sufficient to enable them to undertake this Agreement. The Client will obtain any consents reasonably required from any other holder of any interest in the Premises.

9. ENVIRONMENTAL CERTIFICATES

9.1 The Client acknowledges and agrees that Birdwood Business Finance, as the owner of the Renewable Energy System, will own all Environmental Certificates which may be created or claimed in relation to the Renewable Energy System.

9.2 If requested, the Client must (at its cost) do all thing required by Birdwood Business Finance to claim title to the Environmental Certificates in relation to the Renewable Energy System, including by assignment or transfer of any rights of the Client in relation to Environmental Certificates.

10. PPSR

10.1 The parties acknowledge and agree that this Agreement creates a Security Interest for the purpose of the PPSR Birdwood Business Finance may, at its discretion:

(a) register, or give any notification in connection with, any and all Security Interests in relation to the Renewable Energy System on the Personal Property Securities Register;

(b) exercise rights in connection with the Security Interest.

10.2 The parties agree to do all things necessary which may be required by Birdwood Business Finance to enforce, perfect or otherwise ensure that Birdwood Business Finance may register, the Security Interest in relation to the Renewable Energy System.

10.3 The parties waive any right to receive from Birdwood Business Finance a financing statement, financing change statement or verification statement registered or received by Birdwood Business Finance in respect of the Security Interests created under this Agreement.

10.4 For the purposes of this clause the terms "financing statement", "financing change statement", "Personal Property Securities Register", "Security Interest" and "verification statement" have the meanings given in the PPSR.

11. OPTION TO PURCHASE THE RENEWABLE ENERGY SYSTEM

11.1 At the end of the Contract Life, the Landowner may purchase the Renewable Energy System from Birdwood Business Finance, unless the Landowner or the Tenant are in default (Purchase Option).

11.2 To exercise the Purchase Option the Landowner must, at least 2 months prior to the expiry of the Contract Life, give written notice to Birdwood Business Finance and pay the Purchase Price. Upon receipt of the Purchase Price and any outstanding amounts due under this Agreement, Birdwood Business Finance must do all things reasonably necessary to transfer unencumbered ownership of the Renewable Energy System to the Landowner or as directed by the Landowner.

11.3 If the Landowner does not exercise the Purchase Option, Birdwood Business Finance may continue to supply the Generated Quantity in accordance with this Agreement.

11.4 At the end of the Contract Life, if the Landowner has not exercised the Purchase Option, either party may give the other party three months’ notice to end the Supply Term. During the notice period the Landowner may exercise the Purchase Option. If the Landowner does not exercise the Purchase Option during the notice period, Birdwood Business Finance may remove the Renewable Energy System from the Site (and the Landowner grants Birdwood Business Finance a right of access for this purpose).

12. VARIATION EVENT

12.1 If a Variation Event occurs during the Supply Term:

(a) Birdwood Business Finance may notify the Client of a term of this Agreement (including but not limited to, varying the Fixed Rate or Subscription Rate or including new fees or charges) which may be impacted by providing the Client with written notice of the variation (Variation Notice);

(b) The Variation Notice must advise whether:

(i) Birdwood Business Finance intends to retain the Agreement but negotiate a variation to the relevant term of the Agreement and provide detail of that modification; or

(ii) terminate the Agreement;

(c) if clause 12.1(a)(i) applies, the Client must advise Birdwood Business Finance within 20 Business Days if it accepts the variation. If:

(i) the variation is accepted or no response is received from the Client within 20 Business Days, the variations in the Variation Notice will apply to this Agreement and the parties will be bound by the variation; or

(ii) the variation is not accepted, the Client may notify Birdwood Business Finance that it intends for the Agreement to terminate.

12.2 The parties agree to continue to be bound by the existing terms until they execute a variation deed or a party gives a termination notice under clause 12.1(b)(ii) or 12.1(c)(ii).

13. INVOICES AND PAYMENT

13.1 Birdwood Business Finance or its agent will send the Client an Invoice each calendar month for the Subscription Rate (where that option has been selected in the Key Terms) or the Generated Quantity multiplied by the Fixed Rate (if the Fixed Rate option is selected in the Key Terms) , payable within 14 days of the date of the Invoice.

13.2 Payment

(a) The Client must pay any Invoice by the due date by direct debit. If the Client does not arrange and maintain a valid direct debt for payment of each Invoice the Client will be charged and pay an additional $10.00 + GST per month to cover the transactional costs.

(b) Should the Client’s account be in credit as a result of an adjustment or overpayment, such credit shall be carried forward and applied to the next Invoice issued to the Client or, at the election of Birdwood Business Finance, offset against any other amount due to that party.

13.3 Interest

If the Client does not pay any Invoice by the due date, interest will accrue at the Interest Rate from the due date until the date of payment.

14. GST

14.1 Interpretation

In this clause, a word or expression defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth) has the meaning given to it in that law.

14.2 GST exclusive payments

Unless otherwise provided in this Agreement, any moneys payable under this Agreement have been calculated exclusive of GST.

14.3 GST gross up

If a party makes a supply under or in connection with this Agreement in respect of which GST is payable, the consideration for the supply but for the application of this clause 14.3 (GST Exclusive Consideration) is increased by an amount equal to the GST Exclusive Consideration multiplied by the rate of GST prevailing at the time the supply is made.

14.4 Parties’ obligations to provide

Each party agrees to do all things, including providing tax invoices and other documentation, that may be necessary or desirable to enable or assist the other party to claim any input tax credit, adjustment or refund in relation to any amount of GST paid or payable in respect of any supply made under or in connection with this Agreement.

15. RESTRICTION

15.1 The Client must not install or allow any third party to install any other power generation, storage, optimisation or charging system at the Premises without the written consent of Birdwood Business Finance.

16. LIABILITY AND INDEMNITY

16.1 Duty to mitigate

Each party must mitigate any damages or loss suffered or incurred by it as a result of any breach of any part of this Agreement.

16.2 Limitation of liability

Birdwood Business Finance will not be liable for any Claim greater than the maximum estimated amount payable under the Agreement arising from or in connection with a breach of this Agreement or any act or omission of Birdwood Business Finance.

16.3 When limitation does not apply

Clause 16.2 does not apply to or limit liability:

(a) arising out of any fraudulent or wilful act or omission of a party;

(b) liability in respect of personal injury or death or loss of, or damage to, third party property (whether such liability arises by way of contribution, indemnity or otherwise);

(d) to the extent that liability is insured by, and a party receives insurance proceeds in respect of that liability under, a policy of insurance required to be effected by this Agreement.

16.4 Consequential Loss excluded

Notwithstanding any other provision of the Agreement, no party shall have liability to another other party for loss of production, profit, revenue, contract or for any financing costs or increase in operating costs or for any consequential or indirect loss.

16.5 Warranty

The Client warrants to Birdwood Business Finance that it is using the electricity supplied under this Agreement for personal, domestic or household use or consumption.

17. ASSIGNMENT OR NOVATION PERMITTED

17.1 The Client agrees that Birdwood Business Finance may assign or novate this Agreement to a third party provided that:

(a) the third party is, in Birdwood Business Finance’s reasonable opinion, capable of performing Birdwood Business Finance’s obligations under this Agreement; and

(b) Birdwood Business Finance notifies the Client of the assignment or novation within a reasonable period of time before or after the assignment or novation takes place.

17.2 The Client must execute any documents and do anything else reasonably required by Birdwood Business Finance to give effect to the assignment or novation.

18. FINANCIER’S RIGHTS

The Client agrees to extend all Birdwood Business Finance’s rights and entitlements under this Agreement to any financier for the Renewable Energy System and that the Client will not unreasonably withhold consent to any agreement proposed by the financier which is consistent with this Agreement.

19. TRANSFER OF OWNERSHIP OR VACATION OF PREMISES

19.1 Transfer of Landownership

(a) If the Landowner sells or otherwise parts with ownership or possession of all or a portion of its interest in the Premises, the Landownerremains liable to Birdwood Business Finance for the performance of each obligation under this Agreement until a new agreement to transfer that obligation has been executed by the new owner or occupier of the Premises and Birdwood Business Finance.

(b) Birdwood Business Finance may at its sole discretion consent to transfer the rights and obligations under this Agreement to the new owner or occupier, such consent not be unreasonably withheld.

19.2 Vacation of Premises

(a) If the Tenant vacates or ceases to occupy the Premises during the Supply Term, the Tenant:

(i) must notify Birdwood Business Finance immediately of the change of occupancy; and

(ii) remains liable to Birdwood Business Finance for the performance of each obligation under this Agreement, unless a written notification is provided.

(b) The Tenant undertakes to novate this Agreement to the new occupant of the Premises, if known, and to assist Birdwood Business Finance to obtain the new occupant’s acceptance of the novation.

20. DEFAULT AND TERMINATION

20.1 Essential terms

(a) The essential conditions in this Agreement include each obligation of the Client to pay money and the obligations in clause 3.

(b) If an essential condition is breached, Birdwood Business Finance may, without limiting any other rights under this Agreement, immediately suspend the supply of electricity to the Client and reconfigure the Renewable Energy System to direct and sell the Generated Quantity to any third party including an electricity Distribution Network or an electricity wholesaler or retailer, until such time that the Client is no longer in breach of this Agreement, or this Agreement is terminated in accordance with its terms.

20.2 Termination by Birdwood Business Finance

Birdwood Business Finance may terminate this Agreement with immediate effect by giving a written notice of termination to the Client if:

(a) a third party takes possession of the Renewable Energy System;

(b) the Client has not generated the Total Purchased Quantity within 25 years of Supply Start Date;

(i) where the breach is capable of remedy, the Client fails to remedy the breach within 15 Business Days from receipt of a written notice of default from Birdwood Business Finance; or

(ii) the breach is not capable of remedy; or

(d) to the extent permitted by law, an Insolvency Event occurs in relation to the Client.

20.3 Termination by the Client

(a) The Client may terminate this Agreement by giving 3 months written notice of termination to Birdwood Business Finance on or after the expiry of the Minimum Term and by paying any amounts referred to in clause 20.5, prior to the notified termination date. On payment of such amounts, the Client (where it is the Landowner) will be deemed to have exercised its option to purchase the Renewable Energy System, and clause 11.1 will apply.

(b) If payment of any amounts referred to in clause 20.5 is outstanding at the notified termination date, this Agreement will continue until the amounts and accrued interest are paid.

20.4 Termination by Birdwood Business Finance for Convenience

Birdwood Business Finance may at its sole discretion and for any reason or no reason, including its own convenience, terminate the whole or any part or parts of this Agreement at any time by giving the Client reasonable written notice designating the date on which this Agreement will terminate.

20.5 Costs and consequences of Termination

(a) If this Agreement is terminated pursuant to clause 12.1(b)(ii), 12.1(c)(ii) or 20.2, the Client must pay the Early Buy Out Fee and any outstanding amounts payable under this Agreement to Birdwood Business Finance within 10 Business Days of the date of the termination notice.

(b) If this Agreement is terminated pursuant to clause 20.3, the Client must pay the Early Buy Out Fee and any outstanding amounts payable under this Agreement to Birdwood Business Finance within 10 Business Days of the date of the termination notice.

(c) The Client acknowledges that Birdwood Business Finance’s costs under this Agreement are substantial and that the payment under this clause 20.5 is a genuine pre-estimate of the loss suffered by Birdwood Business Finance as a result of early termination of this Agreement. Upon receipt by Birdwood Business Finance of the Early Buy Out Fee and any outstanding amounts, Birdwood Business Finance must do all things reasonably necessary to transfer unencumbered ownership of the Renewable Energy System to the Landowner or as directed by the Landowner.

(d) If this Agreement is terminated pursuant to clause 20.4, Birdwood Business Finance must do all things reasonably necessary to transfer unencumbered ownership of the Renewable Energy System to the Landowner or as directed by the Landowner.

(e) If payment of any amounts referred to in this clause 20.5 is outstanding at the notified termination date, this Agreement will continue to operate until the amounts and accrued interest are paid.

20.6 Effect of termination

Termination of this Agreement will not prejudice or otherwise affect any:

(a) rights and obligations of the parties expressed in this Agreement to survive termination of this Agreement; or

(b) right or remedy one party has against another party in respect of any breach of this Agreement before termination,

but will terminate all other rights and obligations of the parties under this Agreement.

20.7 Survival

(a) This clause 20.7 and clauses 9, 16, 20.5, 11, 21, 22 and 34 survive termination of this Agreement.

(b) Any other term by its nature intended to survive termination of this Agreement survives termination of this Agreement.

21. NOTICES

21.1 Any notice or other communication to or by a party under this Agreement must be:

(a) given in person, by post or email;

(b) in writing, legible and in English;

(c) addressed (depending on the manner in which it is given) and sent to the relevant party (addressee) at the address included in this Agreement, as varied by the addressee by notice given in accordance with this clause;

(d) signed, or in the case of an email sent, by a person duly authorised by the sender.

21.2 A notice or other communication to or by a party under this Agreement is deemed to be given by the sender and received by the addressee:

(a) if delivered in person, on delivery to the addressee;

(b) if posted, two Business Days (or six, if addressed outside Australia) after the date of posting to the addressee (whether delivered or not);

(i) when a delivery confirmation report is received by the sender; and

(ii) 4 hours after the time the email is sent to the relevant email address unless the sender receives an automatic notification (other than an out of office greeting) that the email has not been delivered,

provided that if the delivery or receipt is on a day which is not a Business Day or is after 4pm (addressee's time), it is deemed to have been received at 9am on the next Business Day.

22. GENERAL

22.1 Entire understanding

(a) This Agreement contains the entire understanding between the parties concerning the subject matter of the Agreement. All prior communications, undertakings and representations, in relation to that subject matter are replaced by this Agreement and have no further effect.

(b) Birdwood Business Finance makes no warranty or guarantee as to the condition or suitability of solar power, its quality or fitness for purpose or safety (except to the extent required by Applicable Law).

22.2 No adverse construction

No provision of this Agreement is to be construed to the disadvantage of a party solely because that party was responsible for preparing or proposing this Agreement or the provision.

22.3 Amendment

This Agreement may not be amended or varied unless the amendment or variation is:

(a) pursuant to clause 12; or

(b) otherwise in writing signed by all parties.

22.4 Further assurances

Each party must do or cause to be done all things necessary or reasonably desirable to give full effect to this Agreement and the transactions contemplated by it (including, but not limited to, the execution of documents).

22.5 Confidentiality

The Client must keep the terms of this Agreement, including the Fixed Rate or Subscription Rate and the Early Buy Out Fee, confidential and not directly or indirectly disclose, divulge or communicate confidential information to any other person, unless required by law, or the information comes into the public domain through no fault of the Client or prior written consent to the disclosure is given by Birdwood Business Finance.

22.6 Prior breaches

Expiry or termination of this Agreement does not affect any rights in connection with a breach of this Agreement before then.

22.7 Governing law and jurisdiction

(a) This Agreement is governed by and must be construed in accordance with the laws in force in the jurisdiction set out in the Key Terms.

(b) The parties submit to the non-exclusive jurisdiction of the courts of the jurisdiction set out in the Key Terms and the Commonwealth of Australia in respect of all matters arising out of or relating to this Agreement, its performance or subject matter.

22.8 Waiver

A waiver of any power or right under this Agreement:

(a) must be in writing by the party entitled to the benefit of that power or right; and

(b) is effective only to the extent set out in that written waiver.

22.9 No waiver

(a) A failure to exercise, a delay in exercising or partially exercising any power, right or remedy conferred on a party by or in respect of this Agreement does not operate as a waiver by that party of the power, right or remedy.

(b) A single or partial exercise of any power, right or remedy does not preclude a further exercise of it or the exercise of any other power, right or remedy.

22.10 Invalidity

A word or provision of this Agreement must be read down to the minimum extent necessary if:

(a) this Agreement is void, voidable or unenforceable if it is not read down;

(b) this Agreement will not be void, voidable or unenforceable if it is read down; and

22.11 Severability

Part or all of any provision of this Agreement that is invalid, illegal or unenforceable will be severed from this Agreement and will not affect the continued operation of the remaining provisions of this Agreement.

22.12 Rights, remedies additional

Any rights and remedies that a person may have under this Agreement are in addition to and do not replace or limit any other rights or remedies that the person may have.

22.13 Counterparts

This Agreement may be executed in any number of counterparts and all counterparts taken together will constitute one document.

22.14 Joint and Several Liability

If there is more than one person or entity comprising the Client, Tenant or Guarantor, such persons or entities are jointly and severally liable for the obligations of the Client, Tenant or Guarantor (respectively) under and in connection with this Agreement.

22.15 Privacy

By entering into this Agreement or any separate guarantee and indemnity deed under clause 23.4, the Client and Guarantor acknowledge, agree with and consent to, Birdwood Business Finance’s privacy policy as contained on its website from time to time. At the time of signing this Agreement the URL was https://www.birdwoodbusinessenergy.com/ppa-standard-tc but this URL may change from time to time.

23. GUARANTEE

23.1 In consideration for the supply of electricity by Birdwood Business Finance under this Agreement, the Guarantor unconditionally and irrevocably guarantees to Birdwood Business Finance the due performance of all the Client’s obligations under and in connection with this Agreement.

23.2 The Guarantor also indemnifies Birdwood Business Finance against any Claims Birdwood Business Finance suffers because the Client has breached its contractual, tortious, fiduciary, equitable or other obligations, or a payment by the Client or Guarantor is void or otherwise not recoverable from the Client or Guarantor for any reason.

23.3 The Guarantor must, within two (2) Business Days of notice from Birdwood Business Finance, delivery of its guarantees and indemnities under this clause.

23.4 During the Contract Life, Birdwood Business Finance may request that the Client provide an alternative, new or additional Guarantor to ensure the obligations under and in connection with this Agreement can be met. Upon receipt of a request from Birdwood Business Finance, the Client must promptly ensure that the alternative, new or additional Guarantor executes and delivers a guarantee and indemnity deed in the form required by Birdwood Business Finance.

24. DEFINITIONS

In this Agreement, the terms defined in the “Key Terms” section have the meaning used in that “Key Terms” section, and otherwise:

(a) Agreement means this “Power Purchase Agreement” comprised of the Key Terms, these Standard Terms and Conditions and any documents attached to or referenced in them (in this order of precedence), as amended by the parties.

(b) Annual CPI Change The annual movement in CPI published by the Australian Government Statistician during the quarter immediately preceding the date of review under the heading “CPI All Groups weighted Average of Australian Capital Cities”.

(i) principles of law or equity established by decisions of courts;

(ii) statutes, regulations or by-laws of the Commonwealth of Australia, or any State or Territory of the Commonwealth of Australia or a Authority;

(iii) requirements and approvals (including conditions) of the Commonwealth of Australia or any State or Territory of the Commonwealth of Australia or an Authority that have the force of law; and

(iv) Approvals

(d) Approvals means any approval, waiver, permission or agreement from any Authority required for the installation or intended operation of the Renewable Energy System or its connection to the Distribution Network.

(e) Authority means any government department, local council, government or statutory authority, certifying authority or regulator.

(f) Business Day means a day other than a Saturday, a Sunday or a public holiday in the state or territory where the Site is situated.

(g) Change in Law means any of the following occurring after the Execution Date:

(i) A change in law, regulation, rule, code or sub-code being introduced, amended or repealed (in whole or part); or

(ii) any new or increased fee, charge, tax, tariff, duty imposed on any person;

in connection with the provision, sale or purchase of electricity or related goods and/or services (including those connected with the supply chain related to the provision, sale or purchase of electricity).

(h) Claim means any claim except for personal injuries including all actions, suits, causes of action, debts, dues, costs, claims, cross claims, demands, litigation, damages, losses (including loss of profits and consequential losses), expenses, fees and charges of any description, decisions, judgments and orders either at law or in equity or arising under any statute, and any other liabilities of any kind (including penalties, fines and interest), however arising, whether present, unascertained, immediate, future or contingent, and whether involving a third party or a party to this Agreement.

(i) Conditions Precedent means:

Birdwood Business Finance will, within twelve months of the Execution Date, seek to obtain:

A. confirmation of the suitability of the Site(s) and Premises for the installation of the Renewable Energy System;

B. approval of each entity providing finance in connection with the Renewable Energy System of:

(a) the Client’s creditworthiness;

(b) this Agreement and any construction-related agreements; and

C. any Approvals or licences that Birdwood Business Finance reasonably considers desirable; and

(ii) if the Tenant is the Client, the Landowner executes a Licence Deed;

(iii) Birdwood Business Finance reviews and approves the Premises, Site and the Renewable Energy System design;

(iv) Birdwood Business Finance reviews and approves Gross Production Estimate; and

(v) Birdwood Business Finance confirms in writing that is satisfied that the Client is able to comply with its obligations under this Agreement.

(j) Corporations Act means the Corporations Act 2001 (Cth).

(k) Discount % means the discount applied to a contract value on termination value (as reasonably determined by Birdwood Business Finance). Annual discounts are available on request.

(l) Early Buy Out Fee means a book value of the Renewable Energy System at the date of the Client’s buyout request + 5% margin.

(m) Environmental Certificates means any certificates, credits, permits, rebates, rights of accreditation, discharge of obligations, instruments, licenses or other rights or benefits which are associated with the generation of electricity by the Renewable Energy System, whether present or future, including but not limited to certificates created under the following:

(i) the REC Act;

(ii) the Australian Capital Territory Energy Efficiency Improvement Scheme;

(iii) the Australian Government's Large-scale Renewable Energy Target Scheme;

(iv) the Australian Government's Small-scale Renewable Energy Scheme;

(v) the New South Wales Energy Savings Scheme;

(vi) the New South Wales Peak Demand Reduction Scheme;

(vii) the Australian Capital Territory Energy Efficiency Improvement Scheme; or

(viii) the Victorian Energy Upgrades Program, also known as the Victorian Energy Efficiency Target Scheme.

(n) Execution Date means the date on which the last party executes this Agreement.

(o) Generated Quantity means the energy production of the Renewable Energy System, as measured in kWh.

(p) Gross Production Estimate means the total amount of energy that the Renewable Energy System is estimated to produce over the Contract Life, being the amount in the Key Terms or the amount verified by Birdwood Business Finance during the design phase.

(q) Insolvency Event means, in relation to any party:

(i) a resolution is passed or an application to a court is taken for the winding up, dissolution, official management or administration of that party

(ii) an application is made to a court for an order that a receiver, receiver and manager, administrator, trustee in bankruptcy or similar official be appointed and the application is not withdrawn, struck out or dismissed within 21 days of being made;

(iii) a trustee in bankruptcy or other officer of the Court has been appointed in relation to all or any material asset of the person;

(iv) a liquidator or provisional liquidator is appointed;

(v) an administrator or controller is appointed to any of its assets;

(vi) it enters into or resolves to enter into any arrangement, composition or compromise with, or assignment for the benefit of, its creditors or any class of them;

(vii) it suspends payments of its debts generally;

(viii) it is or becomes unable to pay its debts when they are due or is unable to pay its debts within the meaning of the Corporations Act;

(ix) it is taken to have failed to comply with a statutory demand as a result of s 459F of the Corporations Act;

(x) a notice is issued under s 601AA or 601AB of the Corporations Act;

(xi) a writ of execution is levied against it or its property; or

(xii) it ceases to carry on business.

(r) Interest Rate means 10% per annum calculated daily.

(s) Invoice means a tax invoice issued by Birdwood Business Finance.

(t) Key Terms means the section of this document with this title.

(u) Licence Deed means a licence in the form requested by Birdwood Business Finance which grants all necessary approvals and consents from the Landowner which are considered necessary by Birdwood Business Finance for it to precede with a binding Agreement with the Tenant.

(v) Metering Device(s) means all devices used for metering and monitoring the electricity generated by the Renewable Energy System, including monitoring devices, control devices, online portals, and third party devices which are connected to the internet and monitor and communicate electricity usage data.

(w) National Construction Code means the National Construction Code produced and maintained by the Australian Building Codes Board, as in force from time to time.

(x) PPSR means the Personal Property Securities Act 2009 (Cth).

(y) Purchase Price means $1.00.

(z) REC Act means the Renewable Energy (Electricity) Act 2000 (Cth).

(aa) Renewable Energy System means the system comprising the Solar PV System, any Battery and Storage Equipment and any other equipment ancillary to this, whose characteristics are subject to adjustment by 10%.

(bb) Renewable Energy System Costs means the costs incurred by Birdwood Business Finance under this Agreement including for installation, approval, connection, maintenance or upgrade of the Renewable Energy System.

(cc) Related Body Corporate has the meaning given to that term in section 9 of the Corporations Act.

(dd) Supply Term has the meaning given in clause 4.1.

(ee) Variation Event means any of the following occurring:

(i) on or before the Supply Start Date,

A. the Renewable Energy System Costs are thought likely to be more than 5% higher than anticipated when offering the Renewable Energy System terms;

B. the financial return available is thought likely to be lower than anticipated when offering the Renewable Energy System terms;

C. the actual Site conditions are different to those used to project the size or performance of the Renewable Energy System; or

D. conditions of Approval imply a material change to system design or size; or

(ii) for any 12-month period after the completion of the Minimum Term, the average rates of the three largest electricity retailers supplying the Client's area are at least 10 % lower than the Fixed Rate (compared with the average peak charge for usage and network), or

(iii) at any time after the 10-year anniversary of the Supply Start Date, a storage system requires replacement or upgrade; or

(iv) a Change in Law

(ff) Variation Notice means a written notice, proposing to replace a term of the Agreement or Schedule in accordance with clause 12.

Power Purchase Agreement

General Terms & Conditions

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