Exhibit 10.1

TRANSFER NOTICE

(“Borrower”) and

Sunscout Limited, NZBN 9429050858057, registration number 8484393, with registered office at 83 Johnstone Drive, Fitzherbert, Palmerston North, 4410, New Zealand (Guarantor)

(the Agreements)

Yours faithfully

/s/ Robert Pigou

Robert Pigou

Deputy Chief Executive and Head of Kānoa – Regional Economic Development & Investment Unit, Ministry of Business, Innovation and Employment

In the presence of:

/s/ Tania Simone Paweska

Witness Signature

REGIONAL STRATEGIC PARTNERSHIP FUND

CONVERTIBLE LOAN AGREEMENT

BETWEEN

MINISTRY OF BUSINESS,

INNOVATION AND EMPLOYMENT

AND

SUNSCOUT NEW ZEALAND LIMITED

FOR

SUNSCOUT PRODUCT DEVELOPMENT PROJECT

PART 1: TRANSACTION-SPECIFIC TERMS

 

30	Contact Person		Ministry’s Contact Person:		Borrower’s Contact Person:
			Name: Anup Mohan		Name: Edwin Cywinski
			Email: Anup.Mohan@mbie.govt.nz		Email: edwin.cywinski@brightwayenergy.com
			Telephone: +64 (0)4 897 6662		Telephone: 027 2300 946
			Kānoa Contract Number: R06.08666
					Guarantor’s Contact Person:
					Name: Edwin Cywinski
					Email: edwin.cywinski@brightwayenergy.com
					Telephone: 027 2300 946
31	Address for Notices		To the Ministry:		To the Borrower:
			15 Stout Street,		83 Johnstone Drive
			PO Box 1473		Fitzherbert
			Wellington 6140		Palmerston North 4410
					Attention: Edwin Cywinski
			Attention: Kānoa – Regional Economic Development and Investment Unit		Email: edwin.cywinski@brightwayenergy.com
			Email: KānoaMonitor@mbie.govt.nz
					To the Guarantor:
					83 Johnstone Drive
					Fitzherbert
					Palmerston North 4410
					Attention: Edwin Cywinski
					Email: info@sunscout.co.nz

SIGNATURES
Signatures		SIGNED for an on behalf of the SOVEREIGN IN RIGHT OF NEW ZEALAND by the person named below, being a person duly authorised to enter into obligations on behalf of the Ministry of Business, Innovation and Employment:			SIGNED for and on behalf of the BORROWER by the persons named below, being duly authorised to enter into obligations on behalf of the Borrower:
					/s/ Edwin Cywinski
		Name:			Name: Edwin Cywinski
		Position:	Deputy Chief Executive and Head of Kānoa - RDU		Position: Director
		Date: 22 september 2023			Date:
					SIGNED for and on behalf of the GUARANTOR by the persons named below, being duly authorised to enter into obligations on behalf of the Guarantor:
					/s/ Edwin Cywinski
					Name: Edwin Cywinski
					Position: Director
					Date:
					/s/ Marc Cywinski
					Name: Marc Cywinski
					Position: Director
					Date:

CONTENTS

PART 2: GENERAL TERMS AND CONDITIONS

In this Agreement, unless the context requires otherwise:

Acquisition has the meaning given in Part 1.

Acquisition Contract means each contract relating to the acquisition of assets for the purpose of the Project entered into between the Borrower and a counterparty set out in Part 1 or entered into with the prior written consent of the Ministry.

Additional Conditions to Advances has the meaning given in Part 1.

Additional Permitted Financial Indebtedness has the meaning given in Part 1.

Additional Permitted Security has the meaning given in Part 1.

Additional Transaction Documents has the meaning given in Part 1.

Additional Undertakings has the meaning given in Part 1.

Advance means each loan advance made or to be made available to, or at the request of, the Borrower under the Facility or, as the context may require, the principal amount of that Advance outstanding from time to time.

Agreement has the meaning given in Part 1.

Amounts Outstanding means, at any date, the Principal Amount, together with any accrued and unpaid interest and other amounts then due and payable by the Borrower to the Ministry.

Annual Budget has the meaning given in clause 16.1(e).

Authorisation means:

Availability Period has the meaning given in Part 1.

Borrower has the meaning given in Part 1.

Business Day means any day not being a Saturday or Sunday or public holiday within the meaning of section 44 of the Holidays Act 2003;

Change in Control means an event or series of events which result in any person (acting alone) or group of persons (acting in concert) acquiring or ceasing to have the ability:

Co-Funding has the meaning given in Part 1.

Conditions Precedent has the meaning given in Part 1.

Contact Person(s) means, in respect of the Ministry and the Borrower, the persons specified in Part 1.

Conversion means the conversion of some or all of the Amounts Outstanding into Conversion Shares in accordance with the conversion terms in Schedule 3, and Convert and Converted shall have corresponding meanings.

Conversion Date has the meaning given in Schedule 3.

Conversion Price has the meaning given in Schedule 3.

Conversion Shares has the meaning given in Schedule 3.

Cost Overruns means any costs incurred or expected to be incurred in relation to the Project which are not provided for in the Project Budget.

Default means an Event of Default or any event or circumstance which would (with the expiry of a grace period, the giving of notice, the making of any determination under the Transaction Documents or any combination of any of the foregoing) be an Event of Default.

Default Rate has the meaning given in Part 1.

Distribution means a distribution as defined in section 2 of the Companies Act 1993, and includes any reduction of capital (including a redemption by a company of its own shares), any acquisition by a company of any share in itself or in its holding company, and any financial assistance provided by a company to enable another person to acquire any such share.

Drawdown Date means the date of an Advance, being the date on which an Advance is or is to be made.

Drawdown Notice means a notice substantially in the form set out in Schedule 1 (Drawdown Notice).

Eligible Costs means the actual costs reasonably incurred by the Borrower in delivering the Project on or after the date of this Agreement until the end of the Availability Period.

Environmental Law means any law or regulation relating to the environment, land or water use, noise, smell, pollution or contamination, toxic or hazardous substances, waste disposal or conservation (including the Resource Management Act 1991) and any Authorisation, consent or notice under any such law.

Event of Default means event or circumstance specified as such in clause 17 (Events of Default).

Event of Review has the meaning given in Part 1.

Expiry Date has the meaning given in Part 1.

Facility means the loan facility made available on the terms of this Agreement, as set out in Part 1.

Facility Limit has the meaning given in Part 1.

Finance Documents means:

Financial Close means the date on which the Ministry issues the confirmation referred to in clause 3.1 (Conditions Precedent).

Financial Indebtedness means any indebtedness (whether present or future, actual or contingent) for or in respect of:

Financial Year has the meaning given in Part 1.

Fixed Rate has the meaning given in Part 1.

GAAP means generally accepted accounting principles in New Zealand.

Governmental Agency means any government or governmental, intergovernmental, supranational, semi-governmental or judicial entity or authority including any local council or regional authority, any agency or department, any self-regulatory body or organisation established under statute, any stock exchange and any other regulatory, monetary or accountancy body.

GST means goods and services tax under the Goods and Services Tax Act 1985 and any other tax of a similar nature.

Guarantor has the meaning given in Part 1, and means each of them or all of them, as the context requires.

Insolvency Event means, in relation to any person:

Interest Payment Date has the meaning given in Part 1.

Interest Period has the meaning given in Part 1.

Interest Rate has the meaning given in Part 1. a

Key Personnel means the persons specified in Part 1.

Land has the meaning given in Part 1.

Lease has the meaning given in Part 1.

Material Adverse Effect means a material adverse effect on:

and Material Adverse Change is to be construed accordingly.

Material Variation means any variation which on its own or together with any other variation or variations results in, or is likely to result in the Project Budget (taking into account all variations) being exceeded or the Project being materially delayed, or any variation that amends the scope, specifications or function of the Project.

Maturity Date has the meaning given in Part 1.

Ministry has the meaning given in Part 1.

Operating Costs means all costs and expenses incurred by the Borrower in connection with the operation of the Project and the maintenance, repair and reinstatement of the Project assets but excluding:

Operating Documents has the meaning given in Part 1.

Part 1 means Part 1 (Transaction-Specific Terms) of this Agreement.

Part 2 means Part 2 (General Terms and Conditions) of this Agreement.

Permitted Disposal means a disposal:

Permitted Financial Indebtedness means:

Permitted Security means:

Plans means the plans and specifications for the Project.

Post-Project Completion Outcomes Report has the meaning given in clause 16.1(g).

PPSA means the Personal Property Securities Act 1999.

Practical Completion means the date that is six (6) months after the date on which:

Principal Amount means, at any date, the aggregate principal amount of all Advances outstanding as at that date plus all capitalised interest (if any).

Progress Report has the meaning given in clause 16.1(a).

Project has the meaning given in Part 1.

Project Account means a Project-specific bank account to be used solely for the purpose of receiving Advances and the Co-Funding and to pay Project Costs.

Project Asset(s) means the assets to be acquired in order to complete the Acquisition.

Project Budget means a breakdown of budgeted cashflows and costs relating to the Project for both the acquisition and operating phases, and including:

Project Costs means the total costs of the Project as set out in the Project Budget.

Project Manager has the meaning given in Part 1.

Project Plan has the meaning given in Part 1.

Related Party means, in relation to the Borrower:

Repayment Schedule has the meaning given in Part 1.

Revenue means all amounts of whatever kind and from whatever source that fall to be credited to the profit and loss account of the Borrower determined in accordance with GAAP.

Review Notice has the meaning given in clause 18.1(a).

RSPF Impact Reporting and RSPF Impact Report(s) have the meanings given in clause 16.1(b).

Scheduled Practical Completion Date has the meaning given in Part 1.

Security Document(s) has the meaning given in Part 1 and includes any other specific security documents as determined by the Ministry at any time to be required in order to guarantee or secure the Borrower’s obligations under this Agreement.

Shareholders’ Agreement means the shareholders’ agreement of the Guarantor to be entered into by the applicable parties in a form satisfactory to the Ministry and as amended, restated, varied, and/or replaced from time to time in accordance with this Agreement.

Subsidiary means any company or entity that is:

Transaction Document means:

Transfer has the meaning given in clause 19.2.

Variation means any variation to the Project, the Plans, the Project Budget, the Project Costs for the Project contemplated by the Project Budget and/or an Acquisition Contract.

In this Agreement, unless the context requires otherwise:

an agreement includes a contract, deed, licence, undertaking and other agreement or legally enforceable arrangement (in each case, whether or not in writing, present and future), and includes that agreement as amended, assigned, novated or substituted from time to time, except to the extent prohibited by a Transaction Document; assets or property includes the whole and any part of the relevant person’s business, assets (including leased assets), undertaking, revenues and rights (in each case, present and future), and reference to any property includes any legal or equitable interest in it;

costs or expenses includes all expenses, losses, claims, costs (including legal costs on a solicitor and own client basis), disbursements, taxes, travel expenses, out of pocket expenses, commissions, charges and audit, investigative or administrative costs;

disposal includes any sale, assignment, exchange, transfer, loan, lease, surrender of lease, licence or parting with possession of, or the granting of any option, right of interest, the payment of money (including a distribution by way of dividend) or any agreement for any of the foregoing (but excludes any such transaction which is a security), and acquisition and acquire are to be construed accordingly;

financial statements means the financial statements of the Borrower;

guarantee includes any indemnity, letter of credit, letter of comfort, bond, suretyship or other agreement, the economic effect of which is to provide security, or otherwise assume responsibility, for the indebtedness, obligations, solvency or financial condition of another person;

indebtedness includes any obligation (whether present or future, actual or contingent, secured or unsecured, joint or several, as principal, surety or otherwise) relating to the payment of money;

a person includes any individual, a body corporate, an association of persons (whether corporate or not), a trust, government, a state or agency of a state and any other entity (in each case, whether or not having separate legal personality) or two or more of them and any reference to a particular person or entity includes a reference to that person’s or entity’s executors, administrators, successors, substitutes (including by novation) and assigns;

a regulation includes any regulation, rule, official directive, request or guideline (whether or not having the force of law) of any Governmental Agency, intergovernmental or supranational body, agency, department or regulatory, self-regulatory or other authority or organisation;

right includes any consent, power, remedy, authority, discretion or cause of action;

security includes:

and security interest is to be construed accordingly;

shareholder has the meaning given to that term in the Companies Act 1993;

tax includes any present or future tax, levy, impost, duty or other charge, deduction or withholding of a similar nature (including any penalty or interest payable in connection with any failure to pay or any delay in paying any of the same) imposed, assessed or levied by or on behalf of any Governmental Agency; and writing includes an email communication and any means of reproducing words in a tangible and permanently visible form.

In this Agreement:

Subject to the terms of this Agreement, the Ministry makes available to the Borrower a term loan facility in an aggregate amount equal to the Facility Limit (the Facility).

The Borrower must apply all amounts borrowed by it to fund:

The Borrower may not deliver any Drawdown Notice unless the Ministry has confirmed receipt of (or waived the requirement to receive) all of the documents and other evidence listed as Conditions Precedent. The Ministry will notify the Borrower promptly on being so satisfied.

The Ministry will only be obliged to make an Advance available if, on the date the Drawdown Notice is received and on the proposed Drawdown Date:

The Borrower may utilise the Facility by delivery to the Ministry of a duly completed Drawdown Notice not later than 12.00pm on a Business Day that is at least eleven Business Days prior to the proposed Drawdown Date. The Drawdown Notice must be submitted to Kānoamonitor@mbie.govt.nz and copied to the Ministry’s Contact Person.

The Drawdown Notice is irrevocable (unless otherwise agreed by the Ministry) and must specify:

The Borrower may not request any more than one Advance (being a minimum of $10,000) under a Facility in each calendar month unless otherwise agreed with the Ministry.

On each Drawdown Date, the Advance made on that date will be consolidated and treated as a single Advance with each other Advance.

The Borrower must repay the Amounts Outstanding under the Facility at the times and in the manner specified in Part 1. No amounts repaid under this Agreement may be re- borrowed.

The Borrower may, if it gives the Ministry not less than three Business Days (or such shorter period as the Ministry may agree) prior notice, cancel the whole or any part (being a minimum amount of $10,000) of the unused portion of a Facility.

The Borrower must pay to the Ministry in repayment of the Principal Amount the net proceeds of insurance claims (other than claims in respect of business interruption, public liability, personal injury, directors and officers liability, other third party liability and workers compensation insurance), to the extent that those proceeds are not committed to be applied to reinstate or replace assets in respect of which those moneys were received, to meet a liability in respect of which those moneys were received or that the Borrower is required to pay to its senior lenders in accordance with the relevant facility agreement, within six months after receipt and, if so committed, applied within 12 months of receipt. Available proceeds are net of (i) tax incurred or reserved for or in respect of the claim or the event giving rise to the claim; (ii) closure, removal, relocation, reorganisation and restructure costs incurred prior to, in connection with or as a consequence of the claim or the event giving rise to the claim; and (iii) all other reasonable costs associated with the claim or the event giving rise to the claim.

The Borrower must pay accrued interest on the Principal Amount under the Facility at the times and in the manner specified in Part 1.

If the Borrower does not pay, when due, an amount payable by it under a Finance Document, then, without prejudice to its other obligations, the Borrower will pay interest on that overdue amount (including interest payable under this clause) calculated from its due date to the date of its receipt by the Ministry (after as well as before judgment), compounded and payable at intervals set out at Part 1 or otherwise as selected by the Ministry at its discretion. This obligation to pay default interest arises without the need for a notice or demand. The rate of default interest will be the Default Rate.

If any supply by the Ministry to the Borrower in relation to any Finance Document will, at the time of supply, be subject to GST, the Borrower will pay to the Ministry an amount equal to the applicable GST in addition to the consideration for that supply.

The Borrower must, within three Business Days of demand, indemnify the Ministry against any cost, loss or liability incurred by the Ministry as a result of:

The above indemnities survive the termination of this Agreement and payment of all indebtedness due under the Transaction Documents.

Each of the Borrower and the Guarantor makes the representations and warranties set out in this clause 12 to the Ministry.

It is a company, duly incorporated and validly existing under the laws of New Zealand with power, capacity and authority to own its assets and carry on its business as it is being conducted.

Its obligations under each Transaction Document are legal, valid, binding and enforceable obligations subject to general principles of law relating to enforceability of documents.

Its entry into and performance of, and the transactions contemplated by, the Transaction Documents do not and will not:

It has the power to enter into, perform and deliver, and has taken all necessary action to authorise its entry into, performance and delivery of, the Transaction Documents and the transactions contemplated by those Transaction Documents.

All Authorisations required:

Except as otherwise notified to the Ministry on or before the date of this Agreement, it is, and will at all times be, the sole legal and beneficial owner of the Project Asset(s) and all of its other assets that are used in connection with the Project.

No Insolvency Event has occurred in respect of it.

No security interest exists over or affects, nor is there any agreement to give or permit to exist, any security interest over or affecting, any of its assets other than a Permitted Security.

The Borrower’s obligations under this Agreement will rank at least pari passu with its other unsecured obligations, subject to any obligations preferred by law.

Except as disclosed to the Ministry prior to the date of this Agreement, it is not a trustee of any trust or settlement and it does not enter into any Transaction Document, or hold any property, as a trustee.

No litigation, arbitration or administrative proceedings of or before any court, arbitral body or agency which, if adversely determined, might reasonably be expected to have a Material Adverse Effect have been started or, to the best of its knowledge and belief, threatened against it.

It is not in breach of any law binding upon it, and it is in compliance in all material respects with all applicable consents and Authorisations and other requirements (including any certificates of compliance, resource and buildings consents and orders) under all Environmental Laws and directives in relation to the Land.

It does not have any Financial Indebtedness outstanding other than Permitted Financial Indebtedness.

To the best of its knowledge, no notices, orders or planning proposals have been issued in respect of the Land by any local body, government or other authority having jurisdiction in respect of the Land other than notices the requirements of which have been complied with or have been disclosed to the Ministry.

To the best of its knowledge:

The Borrower and the Guarantor acknowledge that the representations in clause 12 will be deemed to be repeated on each Drawdown Date and on each Interest Payment Date so long as this Agreement remains in effect by reference to the facts and circumstances then existing, except that each reference to financial statements is to be construed as a reference to the latest available financial statements of the Borrower and the Guarantor.

The Borrower and the Guarantor must promptly:

any Authorisation required under any law or regulation of its jurisdiction of incorporation to enable it to perform its obligations under the Transaction Documents required in respect of, and to ensure the legality, validity, enforceability or admissibility in evidence in its jurisdiction of incorporation, of any Transaction Document.

Each of the Borrower and the Guarantor must duly and promptly comply with all laws applicable to it.

The Borrower must use the Facility solely in accordance with clause 2.2 (Purpose).

The Borrower must do all things necessary to maintain its corporate existence and must not transfer its jurisdiction of incorporation or place of domicile for taxation purposes without the prior written consent of the Ministry.

The Borrower shall:

Each of the Borrower and the Guarantor must:

The Borrower must:

The Borrower will not engage in any business or activity other than those directly related to the Project Asset(s) and the Project unless approved by the Ministry.

The Borrower must file all tax returns as required by law, and pay and discharge all taxes, assessments and governmental charges payable by it or on its property prior to the date that penalties become payable except only to the extent that those taxes, assessments or governmental charges are being contested in good faith by appropriate proceedings and adequate reserves are set aside for their payment.

The Borrower will ensure that the Key Personnel undertake their respective roles in connection with the Project as specified in Part 1, except as otherwise approved in writing by the Ministry. If any Key Personnel become unavailable to perform their role, the Borrower must promptly notify the Ministry and arrange replacement Key Personnel acceptable to the Ministry.

The Borrower must allow the Ministry and its representatives to inspect the Land and/or the Project Asset(s) on reasonable notice from the Ministry to the Borrower, and during usual business hours unless otherwise agreed by the Parties.

The Borrower and the Guarantor:

The Borrower and the Guarantor must:

Without limiting its other obligations under this Agreement, the Borrower will:

Each of the Borrower and the Guarantor must promptly, and at its own cost, do all such acts or execute all such agreements (including assignments, transfers, notices and instructions) and will procure that its subsidiaries do all such acts/execute all such agreements as may be necessary (as the Ministry may specify, in such form as the Ministry may reasonably require) for the exercise of any rights, powers and remedies of the Ministry provided by or pursuant to the Transaction Documents or by law.

PROJECT UNDERTAKINGS

The Borrower and the Guarantor must maintain the Project Account until Practical Completion, and will:

The Borrower must:

The Borrower must ensure that any Cost Overrun (including as incurred or expected to be incurred in connection with any Variation) is funded by it (other than by using all or part of any Advance) unless otherwise agreed by the Ministry in writing.

The Borrower must:

The Borrower must ensure that Practical Completion of the Project occurs no later than three months after Scheduled Practical Completion.

To the extent within its control, the Borrower must ensure that on Practical Completion all buildings and improvements on the Land are 100% compliant with all applicable building standards.

The Borrower shall maintain or procure the maintenance of the Project Asset(s) and all of its assets in accordance with best industry practice and in accordance with any requirements from the manufacturer, including paying all operating expenses in a timely manner.

The Borrower must:

The Borrower, the Guarantor, and each Subsidiary must not create or permit to subsist any security over any of its assets other than Permitted Security.

The Borrower and the Guarantor must not dispose of any part of their assets other than a Permitted Disposal.

Each of the Borrower, the Guarantor, and each Subsidiary must not acquire its own shares, issue any new shares or exercise any option to redeem its shares, and may not issue any class of shares other than ordinary shares except with the prior written consent of the Ministry.

Each of the Borrower and the Guarantor must not enter into any amalgamation, demerger, merger or corporate reconstruction other than a solvent amalgamation or reconstruction approved by the Ministry in writing.

The Borrower, the Guarantor, and each Subsidiary must not incur or permit to remain outstanding any Financial Indebtedness except Permitted Financial Indebtedness.

The Borrower and the Guarantor must not undertake any projects (other than the Project) that require material capital expenditure, except with the prior written consent of the Ministry.

The Borrower and the Guarantor must not alter the terms of its constitutional documents, except with the prior written consent of the Ministry.

The Borrower must not make any Distribution except with the prior written consent of the Ministry.

Each of the Borrower and the Guarantor must not enter into any transaction with any Related Party other than in the ordinary course of ordinary business and for fair market value on arm’s length commercial terms except with the prior written consent of the Ministry.

The Borrower and the Guarantor must not acquire a company or any shares or securities or a business or undertaking (or, in each case, any interest in them) without the prior written consent of the Ministry.

The Borrower and the Guarantor must not make or allow to subsist any loans, grant any credit (except in the ordinary course of ordinary business, or Permitted Financial Indebtedness) or give or allow to remain outstanding any guarantee or indemnity (except any indemnity as required under any of the Transaction Documents, agreed in writing by the Ministry or that are given by the Borrower or Guarantor in the ordinary course of business) to or for the benefit of any person or otherwise voluntarily assume any liability, whether actual or contingent, in respect of any obligation of any person.

The Borrower and the Guarantor will not at any time do anything that could reasonably be expected to have an adverse effect on the reputation, good standing or goodwill of the Ministry. The Borrower will keep the Ministry informed of any matter known to the Borrower which could reasonably be expected to have such an effect.

Each of the Borrower and the Guarantor must not become a trustee of any trust.

Each of the Borrower and the Guarantor must not apply to vary or change any resource consents, building consent, planning approvals or any other Authorisations or approvals obtained in relation to the Project without the Ministry’s prior written consent.

Neither the Borrower nor the Guarantor will not amend its Financial Year without the prior approval of the Ministry (such approval not to be unreasonably withheld).

The Borrower will provide the Ministry with the following reports and certificates unless otherwise agreed with the Ministry:

The Borrower must provide the Ministry with the following:

If there have been any changes to the Project which may materially affect the Project Budget, an Annual Budget and/or might be considered by the Ministry to adversely affect the repayment of the Facility by the due date, the Borrower must promptly provide the Ministry with an updated Project Budget and acquisition programme for the Project or Annual Budget detailing the effect of such change.

The Borrower must notify the Ministry of the occurrence of any Default, Event of Default or Event of Review immediately upon becoming aware of it (giving full details of it and of any steps taken or to be taken as a result) and upon receipt or a written request to that effect, confirm that, save as notified to the Ministry, no such event has occurred.

Each of the events or circumstances set out in clause 17 (other than clause 17.20 (Acceleration)) is an Event of Default.

The Borrower:

The Borrower breaches the undertakings set out in clause 14.7 (Insurance).

The Borrower breaches any of the undertakings set out in clause 15 (Negative Undertakings).

Any representation, warranty or statement made or deemed to be made by the Borrower or any Related Party in any Transaction Document or any other document delivered by or on behalf of the Borrower under or in connection with any Transaction Document or related to the Project is or proves to have been incorrect or misleading in any respect when made or deemed to be made and, if the circumstances giving rise to the misrepresentation are capable of remedy, such circumstances are not remedied within 20 Business Days of the earlier of the Borrower or the Related Party becoming aware of the representation, warranty or statement being incorrect or misleading or receipt of written notice from the Ministry to the Borrower or the Related Party to remedy the default.

An Insolvency Event occurs in relation to the Borrower, the Related Party or any Subsidiary.

A Change in Control in respect of the Borrower without the prior written consent of the Ministry.

Any provision of any Transaction Document:

An event of default or termination event (however described) occurs under a Transaction Document other than this Agreement.

All or any material part of the Borrower’s or any Related Party’s property is compulsorily acquired by or by order of a Governmental Agency or under law and reasonable compensation has not been paid by the Governmental Agency, or any steps are taken to effect any of the same.

The board of the Borrower or any Related Party passes a resolution for, or in contemplation of, an amalgamation of the Borrower or the Related Party with another company.

The Borrower or any Related Party ceases, or threatens to cease, to conduct all or a substantial part of its business.

The Borrower or any Related Party is party to any litigation, tax claim or administrative or arbitration proceedings or to any dispute with any local body, government or other authority having jurisdiction in respect of the Land which in the reasonable opinion of the Ministry has, or is reasonably likely to have, a Material Adverse Effect if adversely determined.

Any event or circumstance or series of events or circumstances arises, whether related or not, which the Ministry believes has, or is reasonably likely to have, a Material Adverse Effect.

It is, or will become, unlawful for the Borrower or any Related Party to comply with any of its obligations under a Transaction Document in any material respect.

The Borrower or any Related Party is charged, prosecuted or issued with a restraining order or clean up notice under any Environmental Law in respect of the Project which the Ministry considers would be likely to give rise to a material claim against it.

The Borrower abandons the Project, is unable to complete the Project or has no intention of resuming or restarting the Project and, for the avoidance of doubt, “abandoned” for this purpose shall not include any temporary stop of the Project or similar.

On and at any time after the occurrence of an Event of Default the Ministry may by notice to the Borrower:

The Ministry may at any time disclose to a proposed assignee, transferee or novatee any information which relates to, or was furnished in connection with, the Transaction Documents.

On each date on which the Borrower is required to make a payment under a Finance Document, the Borrower must make the same available to the Ministry for value on the due date, at the time and to such account specified by the Ministry.

If the Ministry receives a payment that is insufficient to discharge all the amounts then due and payable by the Borrower under the Transaction Documents, the Ministry may apply that payment towards the obligations of the Borrower under the Transaction Documents in such order as the Ministry determines (in its sole discretion).

All payments to be made by the Borrower under the Transaction Documents must be calculated and be made:

Any payment which is due to be made on a day that is not a Business Day must be made on the next Business Day.

The Borrower authorises the Ministry to apply, without prior notice or demand, any amount owing or due by the Ministry to the Borrower in connection with any Finance Document or the Project in or towards satisfaction of any unpaid indebtedness due by the Borrower to the Ministry in connection with any Finance Document or the Project. For this purpose, the Ministry is authorised to accelerate the date for payment of any such amount owing by the Ministry to the Borrower.

All matters or enquiries regarding this Agreement will be directed to each party’s contact person set out in Part 1.

Each notice or other communication given under this Agreement (each a notice) will be in writing and delivered personally or sent by post or email to the address of the relevant Party set out in Part 1 or to any other address from time to time designated for that purpose by at least 10 Business Days’ prior written notice to the other party. A notice under this Agreement is deemed to be received if:

Any certification or determination by the Ministry of a rate or amount under any Transaction Document is, in the absence of manifest error, conclusive evidence of the matters to which it relates.

If, at any time, any provision of the Transaction Documents is or becomes illegal, invalid or unenforceable in any respect under any law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions nor the legality, validity or enforceability of such provision under the law of any other jurisdiction will in any way be affected or impaired.

In the event of any inconsistency between the provisions of this Agreement and the provisions of any other Transaction Document, the provisions of this Agreement will prevail.

Subject to clause 29.2 and 29.3, each party will maintain each other party’s confidential information in confidence. However, this will not prohibit:

The parties agree that the Finance Documents and the terms thereunder constitute confidential documents of the Ministry.

The Borrower and the Guarantor acknowledge and agree that nothing in this Agreement

restricts the Ministry’s ability to:

The Borrower and the Guarantor acknowledge and agree that:

may be official information in terms of the Official Information Act 1982 and, in line with the purpose and principles of the Official Information Act 1982, this Agreement and such information may be released to the public unless there is good reason, in terms of the Official Information Act 1982, to withhold it.

No legal partnership, employer-employee, principal-agent or joint venture relationship is created or evidenced by this Agreement.

This Agreement is governed by New Zealand law, and the parties submit to the exclusive jurisdiction of the courts of New Zealand.

SCHEDULE 1: DRAWDOWN NOTICE

Dear Sirs / Madams

LOAN AGREEMENT DATED [ ] BETWEEN THE MINISTRY AND [INSERT NAME OF BORROWER] (THE AGREEMENT)

Kānoa Contract Number:

Yours faithfully

authorised signatory for

[Borrower]

SCHEDULE 2: FORM OF DIRECTOR CERTIFICATE

I, [     ], a director of [insert full legal name of borrower] (the Company) certify as follows:

In approving the Documents and the Transactions, the Board, after taking into account all relevant factors, either:

It has been determined either:

Each of the Documents has been properly executed by the Company.

The Transactions do not include or involve any provision by the Company (directly or indirectly) of financial assistance in connection with the purchase of any shares issued or to be issued by the Company or its holding company.

Either the Company does not have a constitution, or the constitution of the Company held on its record as maintained at the office of the Registrar of Companies at [place] as at [date] is complete and includes all alterations to date.

The Company has taken all action necessary for the issue of ordinary shares in the Company to the Ministry or its nominee on in accordance with the terms of the Documents.

Schedule of Documents

[complete]

SCHEDULE 3: CONVERSION TERMS

General

Accession Deed means the accession deed (however described) under which the Ministry agrees to be bound by the provisions of the Shareholders’ Agreement.

Conversion means the conversion of some or all of the Amounts Outstanding into Conversion Shares in accordance with the conversion terms in this Schedule 3, and Convert and Converted shall have corresponding meanings.

Conversion Date means the date that is fifteen (15) Business Days following the date on which the Ministry provides a Conversion Notice to the Guarantor pursuant to this Schedule 3.

Conversion Notice means a notice of election to Convert given under paragraph 3 of this Schedule 3 by the Ministry to the Guarantor.

Conversion Price means the lowest price per ordinary share at which ordinary shares in the Guarantor are to be issued under the Qualifying Equity Financing, less 15%.

Conversion Shares means ordinary shares in the Guarantor which: