Master Lease Agreement - KE Financial Corp. Ltd. and Total Energy Systems Ltd.
MASTER LEASE AGREEMENT
THIS AGREEMENT made on the date specified in Part 1 of the Second Schedule
hereto BETWEEN KE FINANCIAL CORPORATION LIMITED of the address set forth in Part
2 of the Second Schedule hereto of the first part AND the part or parties
specified in Part 3 of the Second Schedule hereto of the second part AND the
party or parties if any specified in Part 4 of the Second Schedule of the third
part.
NOW THIS AGREEMENT WITNESSES AS FOLLOWS:
1. INTERPRETATION
1.1 The following terms where used herein and in the Second Schedule hereto
shall unless the context otherwise requires the following meanings:
(a) "Agreements" means each and every lease agreement entered into
pursuant to the terms hereof and any extensions, variations or
renewals thereof (and whether or not such extensions, variations or
renewals were made with the consent or knowledge of the Guarantor).
(b) "Applicable Terms and Conditions" for any Agreement shall mean,
subject to clause 8 hereof, the terms and conditions set out in the
document being the First Schedule hereto.
(c) "Authorised Signatories" means the person or persons from time to time
authorised to make offers on behalf of the Lessee as referred to in
clause 6 hereof.
(d) "common payment date" means any date from time to time agree upon by
KE and the Lessee for the payment of rental installments under lease
agreements entered into pursuant to the terms hereof.
(e) "first installment of rent" shall mean for each lease entered into
pursuant to he terms hereof:
(i) If KE and the Lessee have not agreed upon any common payment
date, rent for one (1) payment period as referred to in the
Schedule of Leased Equipment for that lease; or
(ii) If KE and the Lessee have agreed upon a common payment date, rent
from the commencement date of that lease until the next common
payment date and (unless otherwise agreed by KE) for one (1)
payment period thereafter.
(f) "goods" means goods from time to time leased or offered for lease
hereunder.
(g) "Guarantor" means the party or parties specified in Part 4 of the
Second Schedule hereto together with any other party which may from
time to time guarantee due performance by the Lessee hereunder or
under any Agreement and if there is more than one party who is a
Guarantor within the meaning of this clause then
<PAGE>
Guarantor shall mean all of such parties jointly and each of them
severally.
(h) "KE" shall mean the KE Financial Corporation Limited, its successors
and assigns.
(i) "Lessee" shall mean the party or parties described in Part 3 of the
Second Schedule hereto their successor and permitted assigns.
(j) "relevant Lessee" shall where there is more than one party described
in the Second Schedule hereto as Lessee mean for each offer made
hereunder such of the Lessees as shall have executed the Schedule of
Leased Equipment as Lessee.
(k) "Schedule of Leased Equipment" means a Schedule substantially in the
form annexed hereto and marked "B" or such other form as the KE may
from time to time approve.
1.2 Every reference to person shall include a corporation and vice versa.
1.3 Words importing the singular and plural number shall include the plural and
singular respectively.
1.4 Words importing one gender shall include very other gender.
1.5 The interpretation of any covenant, clause or word mentioned herein shall
not be restricted by reference to any other covenant, clause or word or by
the relative position of that covenant clause or word to any other covenant
clause or word.
1.6 Every covenant by which more persons than one covenant or agree shall bind
such persons and every two or more jointly and each of them severally.
1.7 Every reference in these presents to any statute or act or ordinance shall
be construed as including every statute act or ordinance amending or
consolidating the same or in substitution therefor.
1.8 Headings have been included for ease of reference only and shall not
restrict or affect the interpretation or any provision herein contained.
2. OFFERS BY LESSEE
2.1 The Lessee may from time to time offer to lease goods from KE as herein
provided.
2
<PAGE>
2.2 If there are more than one Lessee shown in the Second Schedule hereto then
offers may be made hereunder by any one or more of such Lessees.
2.3 Every offer to lease goods shall be made by the relevant Lessee signing and
submitting to KE a Schedule of Leased Equipment for such goods together
with a cheque for the first installment of rent and a properly completed
supplier's invoice for such goods. For the purposes of this clause a
properly completed supplier's invoice shall unless KE other agrees:
(i) Be addressed to KE.
(ii) Specify the name of the supplier of the goods.
(iii) Set out a full description of the goods including registration
numbers, engine numbers, serial numbers and other such information
as KE may require to identify the goods.
(iv) Specify whether the goods are new or second hand.
(v) Specify the total purchase price payable in respect of such goods.
(vi) Specify such other information as KE may require.
2.4 The submission of a Schedule of Leased Equipment shall constitute an offer
by the relevant Lessee to lease the goods described therein from KE on the
Applicable Terms and Conditions and the terms and conditions set out in the
Schedule of Leased Equipment.
2.5 The Schedule of Leased Equipment may be by separate document or may be
endorsed on the relevant supplier's invoice.
2.6 Any omission from or misdescription in any document or material purporting
to be a Schedule of Leased Equipment or in any other information required
to be submitted in connection therewith or any failure to otherwise
strictly comply with the procedures herein provided shall not prevent
delivery of the Schedule of Leased Equipment constituting an offer within
the meaning of this clause as if the full and correct particulars had been
set out therein and full and correct procedures had been followed.
2.7 Any offer to lease goods made by a relevant Lessee may be revoked by the
relevant Lessee at any time prior to acceptance by KE but only by notice in
writing delivered by the relevant Lessee to KE at its address shown in Part
2 of the Second Schedule hereto. Such offer shall only be revoked upon
actual receipt by KE of such notice.
3
<PAGE>
3. ADDITIONAL INFORMATION
3.1 Before accepting any offer made by the Lessee hereunder KE may require the
relevant Lessee to provide to it such additional information or such
additional documentation as it may in its absolute discretion determine.
4. CONSIDERATION AND ACCEPTANCE OF OFFERS
4.1 KE agrees that it shall consider each offer made to it pursuant to the
terms hereto provided always that KE may in its absolute discretion reject
any offer made hereunder or accept any offer on such terms and subject to
such conditions as it in its absolute discretion shall determine.
4.2 Any offer made hereunder shall be accepted by KE forwarding to the supplier
referred to in the relevant suppliers invoice the purchase price payable in
respect of the goods as specified in such invoice. On the date KE forwards
such moneys an Agreement shall be deemed to be entered into between KE and
the relevant Lessee in relation to such goods. The commencement date for
such Agreement shall unless otherwise agreed in writing be the date upon
which KE forwards such money.
5. LESSEE'S ACKNOWLEDGMENTS
5.1 The Lessee acknowledges that the details as set out in each Schedule of
Leased Equipment submitted by it to KE shall be conclusive and binding on
the relevant Lessee and the relevant Lessee shall be estopped from
disputing the same or any details endorsed thereon.
5.2 The relevant Lessee shall at all times duly and punctually comply in all
respects with the terms, conditions and provisions of the obligations of
the lessee under each Agreement entered into pursuant to the terms hereof
and under each and every other equipment lease agreement hire purchase
agreement or other contract or agreement whatsoever (whether relating to
provision of financial accommodation or otherwise) between the relevant
Lessee and KE PROVIDED THAT:
(a) Nothing in this clause shall constitute a guarantee or indemnity by
any Lessee in relation to Agreements other than those in respect of
which that Lessee or those Lessees are relevant Lessees to the intent
that in relation to each Agreement entered into pursuant to the terms
of this agreement any Lessee not being a relevant Lessee shall not be
liable as Lessee thereunder;
4
<PAGE>
(b) Nothing in this agreement shall prejudice abrogate or effect any
guarantee or indemnity which any of the Lessees may have granted to KE
(whether hereunder or otherwise) in respect of the Agreements or any
of them in respect of which it is not a relevant Lessee;
(c) If under any of the Agreements entered into pursuant to the terms
hereof the relevant Lessee shall breach an essential term or condition
thereof or there shall occur a repudiation of such Agreement then
there shall be deemed to be a repudiation of every other Agreement.
(d) If under any of the Agreements entered into pursuant to the terms
hereof there shall occur an event of default entitling KE to terminate
such Agreement then there shall be deemed to have occurred an event
entitling KE to terminate every other Agreement.
This provision shall apply to all Agreements whether or not the Lessee
thereunder is the relevant Lessee under the first-mentioned Agreement.
6. EXECUTION
6.1 The Lessee hereby authorises any one of the person or persons named in Part
5 of the Second Schedule hereto (or such other person or persons as it may
from time to time by notice signed under its common seal nominate) to make
on its behalf offers to lease goods from KE pursuant to the terms hereof.
6.2 The Lessee acknowledges that any Agreement entered into pursuant to any
offer made by any Authorised Signatory shall be valid and binding on the
relevant Lessee as if such offer had been properly executed by the relevant
Lessee under its common seal.
6.3 The Lessee may by notice in writing executed under its common seal and
delivered to KE revoke the authority in respect of any one or more of such
persons provided that such notice or revocation shall not be effective
until actual receipt by KE.
6.4 The Lessee may by notice in writing executed under its common seal and
delivered to KE nominate such other person or persons as it may from time
to time think appropriate as additional parties authorised to execute
offers to lease goods pursuant to the terms hereof.
6.5 Where there is more than one party specified as Lessee in the Second
Schedule hereto each such Lessee may separately nominate persons to make
offers on its behalf. In such event the powers in Clause 6.3 and Clause 6.4
may be separately exercised by each Lessee in respect of persons nominated
or to be nominated by such Lessee.
5
<PAGE>
7. NOTICE
7.1 Any notice given or required to be given by the Lessee shall be given in
writing and shall be served or sent by registered mail to KE at its address
specified in Part 2 of the Second Schedule hereto or such other address as
KE may from time to time in writing notify. Such notice shall be deemed to
be served on KE only upon the date that it is actually received by KE.
7.2 Any notice to be given by KE hereunder may be signed on behalf of KE by any
Director secretary or Manager of KE. Such notice may be served by
forwarding the same to the party to be served by prepaid post and if posted
shall for all purposes be deemed to have been received on the day following
posting.
8. RELEVANT LEASE AGREEMENT AND SUBSTITUTION OF TERMS
8.1 Subject as hereinafter provided the Applicable Terms and Conditions shall
mean the terms and conditions set out in the First Schedule hereto.
8.2 KE may from time to time notify the Lessee if it wishes to change the
Applicable Terms and Conditions. Any such changes shall unless both the
Lessee and KE agree in writing not apply to Agreements which have been
entered into prior to the date of acceptance of such change as hereafter
provided.
8.3 The Lessee may accept any such substitution or variation to the Applicable
Terms and Conditions. Any such acceptance shall be by the Lessee signing
Amended Applicable Terms and Conditions or otherwise giving notice of its
acceptance of such substitution or variation. Any such acceptance shall be
signed by the Lessee or by any Authorised Signatory.
8.4 On and from the date the Lessee accepts such substitution or variation the
Applicable Terms and Conditions shall be deemed to be varied to the intent
that any offer made by the Lessee hereunder which has not been accepted at
the date of such variation and all offers made thereafter shall be deemed
to be made upon the Applicable Terms and Conditions varied as hereinbefore
provided and a reference to the Applicable Terms and Conditions shall mean
the Applicable Terms and Conditions as to varied or substituted.
9. TERMINATION
9.1 This agreement may be terminated by any one or the Lessees on behalf of all
Lessees.
6
<PAGE>
9.2 This agreement may be terminated by any one of the Lessees so as to
determine its obligations as Lessee hereunder without determining the
obligations of any other Lessee hereunder.
9.3 This agreement may be terminated by KE in respect of the obligations of all
Lessees hereunder or in respect of the obligations of any one or more
thereof.
9.4 Any termination shall be by written notice signed by the party giving the
same and served on the relevant party. Such notice may be signed by an
Authorised Signatory. Where this agreement is determined in respect of some
only of the Lessees nothing herein will impose any obligation to give
notice of such termination on any other of the Lessees.
9.5 Any termination hereunder shall operate only as to the obligations of the
parties hereunder in relation to future offers to enter into lease
agreements hereunder. Any such termination shall not effect the rights or
liabilities of the parties in respect of any Agreements entered into
pursuant to the terms hereof prior to receipt of such notice.
9.6 On giving or receiving any notice of termination hereunder KE may notify
such supplier or suppliers as KE may in its absolute discretion deem
necessary of the fact that this agreement has been terminated.
10. GUARANTEE & INDEMNITY
10.1 The Guarantor hereby guarantees to KE:
(a) The due and punctual payment by the Lessee to KE of all moneys owing
or which may become owing to KE by the Lessee on any account
whatsoever pursuant to this Master Lease Agreement or any of the
Agreements including but without limiting the generality of the
foregoing:
(i) Any rent payments;
(ii) Any moneys payable to KE as a repayment of any moneys outlaid
by KE arising from any failure by the Lessee to pay the same;
(iii) Any moneys arising out of any indemnity contained in any of the
Agreements;
(iv) Any interest which might be chargeable by KE;
(v) Any other costs or expenses which KE might incur which are
recoverable pursuant to the terms of the Agreements;
(vi) Any amounts of rental which might become payable pursuant to
any holding over by the Lessees upon the expiration of any of
the Agreements;
(vii) Any moneys which might become payable by the Lessees on any
termination of this Master Lease Agreement or any of the
Agreements whether such
7
<PAGE>
termination be by effluxion of time or from the default by the
Lessee or otherwise;
(viii) Any moneys which become payable pursuant to the terms of any of
the Agreements arising from the failure by the Lessee to return
the equipment leased pursuant to the Agreements;
(ix) All moneys advanced by KE to the Lessee under any of the
Agreements;
to the extent that such the Lessee make default in the due and
punctual payment of any of the said moneys then the Guarantor shall
immediately pay the same to KE without the need for KE to give any
notice of such failure or make any demand for such moneys.
(b) The due observance and performance by the Lessee of all of its
obligations to KE whenever made or incurred to the intent that should
the Lessee make default in the performance or observance of any of its
obligations under this Master Lease Agreement or any of the Agreements
then the Guarantor shall immediately pay to KE without the need for KE
to give any notice of such default or make any demand all loss and
damage which KE may suffer or sustain as a result thereof whenever and
as often as such default shall occur.
10.2 As a separate and independent obligation the Guarantor hereby indemnifies
and agrees to keep indemnified KE against any loss KE may suffer or sustain
by reason of the non-payment by the Lessee of any monies due under this
Master Lease Agreement or the Agreements or by reason of the failure by the
Lessee to perform all or any of its obligations under this Master Lease
Agreement or the Agreements.
10.3 The guarantees and indemnities contained in the previous sub-clauses shall
be continuing guarantees and indemnities and shall remain in full force and
effect respectively for as long and shall arise as often as any moneys
shall be or become owing by the Lessee to KE pursuant to this Master Lease
Agreement or any of the Agreements or any determination thereof.
10.4 The Guarantor covenants with KE that the guarantees and indemnities
contained in this Master Lease Agreement shall not in any way be determined
discharged abrogated affected prejudiced or impaired by reason of any of
the following:
(a) Any variation or variations whether with or without the consent or
knowledge of the Guarantor and whenever made of any of the provisions
of any of the Agreements or of this Master Lease Agreement;
(b) Any breach or breaches whether wilful or otherwise of any of the
obligations of the Lessee contained in any of the
8
<PAGE>
Agreements or in this Master Lease Agreement and whenever committed
with or without the consent or knowledge of the Guarantor or KE;
(c) The granting by KE at any time of any time credit forebearance or
other indulgence or concession whatever whether under this Master
Lease Agreement or any of the Agreements or otherwise or by any
neglect omission or delay be KE or by any compromise abandonment
waiver release variation redemption or compounding by KE of any of its
rights whether under this Master Lease Agreement any of the Agreements
or otherwise or by the Guarantor being unaware of any default omission
breach of or neglect on the part of the Lessee or by the holding of
any security by KE;
(d) The winding up or the appointment of a Receiver of the Lessee or of
the Guarantor (in the case of a company) or the death or bankruptcy of
any Guarantor or the Lessee (in the case of a person);
(e) The fact that all or any part of the money owed to KE by the Lessee
may not be or may cease to be recoverable from the Lessee or from any
other person liable in respect thereof for any other reason than that
the same has been fully paid and satisfied;
(f) Any payment whether by the Lessee or any other person which would
reduce or operate in satisfaction or partial satisfaction of the
Guarantor's liability hereunder to the extent of such payment where
such payment is void or avoided for any reason (irrespective of when
such avoidance operates) to the intent that such liability may be
enforced to the full amount thereof as it exists prior to such payment
as if such payment had never been made;
(g) The transfer or assignment of the benefit of these presents to any
person or corporation;
(h) The Lessee being under any legal disability or incapacity or by any
assignment for the benefit of its creditors or by any other dealing
matter or thing which but for this provision could or might operate to
abrogate affect or prejudice this guarantee and indemnity;
(i) Any assignment by the Lessee of any of its rights under any of the
Agreements or under this Master Lease Agreement;
(k) The fact that the guarantee is not executed by all parties named
herein as Guarantor;
(l) The release by KE of any party named herein as Lessee;
(m) The release by KE of any of the parties named herein as Guarantor, or
of any other co-guarantor;
(n) Any other fact circumstance or thing whatsoever which but for this
provision might determine discharge or impair these guarantees and
indemnities.
10.5 The Guarantor shall obtain for itself on its own responsibility and at its
own expense its own information on
9
<PAGE>
all matters affecting his Master Lease Agreement and each and every of the
Agreements or any other liability whatsoever of the Lessee or any
variations thereof or the fulfilment or breach by the Lessee of any of its
obligations.
10.6 KE shall not be under any obligation to the Guarantor to have communicated
to or at any time hereafter to communicate to the Guarantor any such
matters referred to in the two preceding sub-clauses or any facts relating
to such matters (whether within the knowledge of KE its agents or employees
or not) nor shall KE be deemed to have made or now or hereafter to make any
representation to the Guarantor in respect of any such matters or facts.
10.7 Without limiting the generality of the preceding sub-clauses KE shall not
be under any obligation to notify the Guarantor that it has received any
offer pursuant to this Master Lease Agreement or that it has entered into
any Agreement pursuant to the terms of this Master Lease Agreement. This
guarantee and indemnity shall subject to sub-clauses 10.12 and 10.14 hereof
extend to and include all Agreements entered into pursuant to the terms of
this Master Lease Agreement.
10.8 The guarantee and indemnity contained in these presents shall be a
principal obligation and shall not be treated ancillary or collateral to
any other obligation howsoever created or arising to the intent that this
guarantee and indemnity shall be fully enforceable without taking any steps
whatsoever against the Lessee or otherwise unless the same shall have been
satisfied according to the terms hereof and notwithstanding that all or any
one or more of the obligations of the Lessee shall be or be declared to be
in whole or in part unenforceable whether by reason or any statute
(including any statute of limitation) or for any other reason.
10.9 This guarantee and indemnity is independent of and in addition to any other
guarantee or indemnity or security held by or which may hereafter be held
by KE and the Guarantor will not in any way or at any time claim or seek
the benefit of or require the transfer of any such guarantee or security or
any part thereof or be entitled to recover from the Lessee any sum paid to
KE hereunder unless and until all moneys owed by the Lessee to KE pursuant
to this Master Lease Agreement and all of the Agreements have been fully
paid and satisfied nor shall the Guarantor either directly or indirectly
claim or receive the benefit of any dividend or payment out of the
Agreements have been fully paid and satisfied nor shall the Guarantor
either directly or indirectly claim or receive the benefit of any dividend
or payment out of the assets of the Lessee or any other person who may be
liable under any security negotiable or otherwise now or hereafter held by
KE as security for the payment of moneys by the Lessee and in the event of
the Lessee
10
<PAGE>
being made bankrupt wound up or making any arrangement or composition in
satisfaction of its debts the Guarantor shall not prove or claim in the
assets of the Lessee in competition with KE with respect to the obligations
hereby guaranteed so as to diminish any dividend or payment which but for
such proof KE would be entities to receive out of such assets and the
receipt of any dividend or other payment which KE may receive out of such
assets shall not breach or affect the right of KE to recover from the
Guarantor the moneys hereby guaranteed to the full amount thereof.
10.10 A certificate signed by or on behalf of KE by a duly authorised
officer stating the amount owing by the Guarantor under each Agreement
shall in the absence of manifest error be conclusive evidence that the
amount so stated is the amount due by the Guarantor under the
guarantee and indemnity herein contained in respect of such Agreement.
10.11 A certificate signed by or on behalf of a duly authorised officer of
KE stating that any equipment lease agreement entered into between KE
and any of the Lessees is an Agreement for the purposes of this Deed
and was entered into pursuant to the terms of this Master Lease
Agreement shall be conclusive evidence of such fact notwithstanding
that the Lessees and/or KE shall have failed to comply with all or any
of the terms of this Master Lease Agreement.
10.12 The Guarantor may at any time by written notice to KE terminate the
guarantee and indemnity contained but only as to Agreements accepted
or entered into by KE after the date of actual receipt by KE of such
notice of termination. Any such termination shall not in any way
affect the rights or obligations of the Guarantor hereunder in respect
of any of the Agreements entered into on or prior to the date of
receipt by KE of such notice.
10.13 Any notice or demand to be given to the Guarantor may be in writing
and may be served by forwarding the same by pre-paid post to the
Guarantor at the first Guarantor's address shown in Part 4 of the
Second Schedule hereto and if posted shall for all purposes be deemed
to have been received on the day following the date of posting
thereof.
10.14 This clause shall operate and be construed as a separate guarantee and
indemnity in respect of each of the Agreements. This clause shall take
effect as a Cross-Guarantee and Cross-Indemnity where there are two or
more persons included in the definition of "Lessee" and such
11
<PAGE>
persons or some of them are included in the definition of Guarantor.
When this Deed takes effect as a Cross-Guarantee and Cross-Indemnity
it shall be construed mutatis mutandis as a separate guarantee and
indemnity upon the terms and conditions hereof in relation to the
obligation of the relevant Lessee under the Agreement from every party
named as Guarantor hereunder other than the relevant Lessee.
10.15 Where any of the Agreements is one to which Section 114 of the Goods
Act of 1958 of Victoria applies this Guarantee shall be limited so
that notwithstanding any provision hereof the liability of the
Guarantor does not include liability in respect of that Agreement in
excess of the amount which the Lessee is liable by reason of breach of
that Agreement and the reasonable costs of and incidental to the
enforcement of this Guarantee.
10.16 In the event that any Guarantor enters into this Guarantee in the
capacity of trustee of any trust or trusts (hereinafter referred to as
the "Trust") such Guarantor hereby acknowledge that it is empowered
under the terms of the Trust to enter into and to execute this
Guarantee and that the Guarantees herein provided for are for the
benefit of the Trust and that all necessary consents and preconditions
required by any applicable trust deed have before execution hereof by
the Guarantor been given made or done as the case may be and that:
(a) the Guarantor not only enters into the Guarantees herein provided in
its capacity as Trustee of the Trust but also in its own right to the
intent that such Guarantor shall be personally liable for the
performance and observance of such agreements undertakings and
provisions in addition to its liability as trustee of the Trust and
(b) such Guarantor has full complete and unfettered authority and power to
enter into this Guarantee pursuant to the terms of the Trust
comprising the Trust including the power to enter into all provisions
herein expressed or implied and which are to be observed or performed
by the Guarantor and that the entering into of this Guarantee is in
the due and proper administration of the Trust and for the benefit of
the beneficiaries of the Trust.
FIRST SCHEDULE
TERMS AND CONDITIONS
These terms and conditions shall be deemed to be included in all offers made by
the Lessee to enter into Agreements as referred to in clause 2 of the Master
Lease Agreement to which these terms and conditions are a Schedule.
12
<PAGE>
1. INTERPRETATION
In these terms and conditions unless the context otherwise requires:
(a) Terms used herein shall unless the context requires have the meaning given
to them in the Master Lease Agreement.
(b) words importing:
(i) the singular number shall include the plural and vice versa;
(ii) one gender shall include any gender;
(c) if for any Agreement there is more than one Lessee named in the Schedule as
Lessee then the liability of each shall be joint and several;
(d) the following terms shall have the following meanings:
"Account" means such bank account as the Lessor may from time to time
notify to the Lessee.
"Business Day" means any day on which trading banks are open for business
in Sydney.
"Commencement Date" means, in relation to each Agreement, the commencement
date determined as provided for in the Master Lease Agreement.
"Equipment" means the goods set out in the Schedule, all accessories and
fittings thereto, all goods acquired in place or addition thereto and all
log books maintenance records and other records in relation thereto.
"Event of Default" means any of the events specified in Clause 13.
"Event of Loss" means, with respect to the Equipment, the actual or
constructive loss of the Equipment or the loss of the use, due to theft,
destruction, damage beyond repair of the Equipment or the rendering of the
Equipment permanently unfit for normal use from any reason whatsoever, or
the condemnation, confiscation or seizure of, or requisition of title to
the Equipment.
"Lessee" means for each Agreement the relevant Lessee determined as
referred to in the Master Lease Agreement.
"Lessor" means KE Financial Corporation Limited or for each Agreement its
successors or assigns.
"Location" means the location of the Equipment as set out in the Schedule
relating to that Equipment.
"Master Lease Agreement" means the Master Lease Agreement to which these
terms and conditions are a Schedule.
"Rebate Rate" means a rate certified by the Lessor as being two (2) per
cent below the normal interest rate applied by the Lessor in calculating
the rent instalments payable in respect of this Agreement.
"Rent" means all rental moneys owing or payable or to become owing or
payable by the Lessee to the Lessor under this Agreement.
"Rent Payment Date" means with respect to this Agreement the date on which
the Rent falls due for payment during the Term
13
<PAGE>
as specified in the Schedule or otherwise determined according to the
Master Lease Agreement.
"Residual Value" means in relation to the Equipment the residual value
specified in the Schedule relating to that Equipment.
"Schedule" means the Schedule of Lease Equipment in respect of the
Equipment.
"Stipulated Loss" on any date, with respect to the Equipment, means the
amount determined hereunder as if that date was the date of termination by
reason of repudiation of this Agreement in respect of that Equipment.
"Supplier" means in respect of the Equipment the person who transferred
property in the Equipment to the Lessor and any other person who supplied
or constructed all or any part of the Equipment.
"Term" means in relation to each Agreement the lease term specified in the
Schedule relating to that Agreement; and
"Value of the Equipment" means an amount determined at the option of the
Lessor as either:
(i) the net proceeds of a sale which takes place not later than three (3)
months from the date of repossession expiration or termination of this
Agreement (whichever is the latest) at either a public auction of the
Equipment with or without reserve or by a private sale at a price not
less than the highest bona fide offer submitted or private sale to or
through a dealer in goods of a similar description; or
(ii) the amount certified pursuant to a bona fide valuation to be the
wholesale value of the Equipment as at a date not later than four (4)
months after repossession expiration or termination of the Agreement
whichever is the latest by a dealer in goods of a similar description
or a licensed or other competent valuer selected by the Lessor;
2. LEASE
Subject to this Agreement the Lessee agrees to lease the Equipment from the
Commence date for the Term at an entire rent being the Total Rent Payable during
the Term as specified in the Schedule.
3. RENT AND OTHER MONEYS
(a) The Lessee shall pay into the Account free of set-off and all withholdings
instalments of Rent in relation to the Equipment of the amount set out in
the Schedule on each Rent Payment Date and the Lessee's obligation to pay
such Rent instalments is absolute and unconditional under any and all
circumstances whatsoever.
(b) The Lessee shall pay into the Account free of set-off and all withholdings
all other moneys payable by it on any account whatsoever under this
Agreement and the Lessee's obligation to
14
<PAGE>
pay such moneys is absolute and unconditional under any and all
circumstances whatsoever.
4. DELIVERY AND INSTALLATION
The Lessee shall:
(a) obtain delivery of the Equipment directly from the Supplier; and
(b) (unless otherwise agreed in writing with the Lessor) pay all delivery and
installation charges.
The Lessor shall not be responsible or liable for any delay or any loss or
damage incurred in the delivery and installation of the Equipment.
5. TITLE
The Lessee:
(a) acknowledges that from the Commencement Date the Equipment will be and
shall remain the sole property of the Lessor and the Lessee shall be a
bailee of the Equipment only subject to this Agreement;
(b) shall take and allow the Lessor to take all such steps (at the Lessee's
expense) as may be necessary to safeguard and protect the title and rights
of the Lessor in the Equipment and in particular the Lessee shall attach to
the Equipment a notice to the effect that the Equipment is the property of
the Lessor;
(c) shall not affix the Equipment to realty without the prior written consent
of the Lessor;
(d) shall upon becoming bound to return the Equipment to the Lessor obtain and
deliver to the Lessor (at the Lessee's cost) all documents required by law
on any transfer of the registration of the Equipment and any other
documents necessary to have the Equipment registered and insured in the
name of the Lessor or of any other person nominated by the Lessor as owner;
and
(e) shall duly and punctually pay all registration fees, rates, taxes, charges
and impositions payable in respect of the Equipment whether assessed on the
Lessor or the Lessee.
6. QUIET ENJOYMENT
So long as no Event of Default shall have occurred and be subsisting or the
Lessor is not otherwise entitled to terminate this Agreement the Lessee may
possess the Equipment during the Term without interruption from the Lessor or
any other person lawfully claiming for or under the Lessor.
7. USE, MAINTENANCE AND REPLACEMENT
The Lessee shall:
(a) use the Equipment for the purpose for which it is designed and in
accordance with any manufacturers instructions and shall use only qualified
personnel to operate the Equipment;
15
<PAGE>
(b) register, operate and maintain the Equipment in a proper and workmanlike
manner and in accordance with all applicable laws, rules and regulations;
(c) Keep the Equipment in the Lessee's possession and control at the Location
or such other place as the Lessor may in writing approve PROVIDED THAT
where the Equipment is mobile then it may be used within the
State/Territory in which the Location is situated but shall not be used
outside that State or Territory except with the written permission of the
Lessor. Where the Equipment is used outside that State or Territory whether
with or without the permission of the Lessor the Lessee shall indemnify the
Lessor against any additional Stamp Duty arising from such use;
(d) at its own cost, maintain and keep the Equipment in good and substantial
repair and on termination of this Agreement return the Equipment to the
Lessor in such repair;
(e) at its own cost, make such replacements, alterations and additions to the
Equipment as are necessary to enable it to comply with this Clause and any
such replacement, any major alteration or addition shall be deemed to be
part of the Equipment and property of the Lessor;
(f) obtain the Lessor's written approval before undertaking replacements,
alterations or additions to the Equipment; and
(g) not make or authorise any replacement, alteration or addition to the
Equipment which impairs the intended function or use of the Equipment or
reduces the fair market value of the Equipment.
(h) promptly inform the Lessor of the location of the Equipment whenever
requested by the Lessor.
(i) Not create any lien over the Equipment and notify any repairers of such
prohibition.
8. ASSIGNMENTS AND MORTGAGES
The Lessee shall not without the prior written consent of the Lessor sell,
transfer, assign, create any interest, in sub-let, part with possession of or
otherwise dispose of or encumber all or part of the Equipment or its interest
thereon either absolutely or by way of security or agree, offer, attempt or
purport to do any such thing. The Lessor may assign mortgage encumber charge
deal in any way whatsoever with its interest in the Equipment or under this
Agreement.
9. INSURANCES
The Lessee shall:
(a) at its own cost, effect and maintain current in the names of the Lessor and
the Lessee at all times during the currency of this Agreement and any
renewal or holding over such insurances in respect of the Equipment as the
Lessor may require including, without limitation:
(i) third party property damage and injury insurance for such amount as
the Lessor may from time to time approve; and
16
<PAGE>
(ii) fire, accident and theft insurances for a minimum amount equal on any
date to the full replacement, reinstatement or Stipulated Loss value
of the Equipment, whichever is greater with such reputable insurers as
may be approved by the Lessor;
(b) ensure that every insurance policy taken out in respect of the Equipment
provides that:
(i) any notice given to the Lessee is copied to the Lessor;
(ii) the Lessor is named as loss payee in every policy providing for
payment to the insured party;
(iii) the Lessor is given 30 days prior notice of any cancellation or
alteration of the policy; and
(iv) the Lessor's interest is not subject to being defeated or avoided by
reason of non-disclosure, misrepresentation, breach of warranty or
otherwise;
(c) deliver to the Lessor upon request certificates of currency for the
insurances and evidence of the due payment of premiums;
(d) as required under any policy promptly notify the relevant insurer and the
Lessor of the occurrence of any event giving rise to a claim under any
policy in respect of the Equipment and any cancellation or alteration of
any such policy; and
(e) when requested by the Lessor promptly file and prosecute claims under the
policies in accordance with such policies.
(f) not do or suffer to occur anything which could or might prejudice any
insurance or any claim thereunder.
10. LOSS AND DAMAGE
(a) All risk of loss, theft, damage or destruction to the Equipment or any part
thereof, however incurred or occasioned, shall be borne by the Lessee and
the Lessee shall promptly give the Lessor written notice thereof and,
unless such occurrence constitutes an Event of Loss pursuant to paragraph
(b) of this Clause, shall promptly cause the affected part or parts of the
Equipment to be replaced or restored to the condition and repair required
to be maintained by Clause 7 hereof.
(b) If an Event of Loss with respect to the Equipment shall occur, the Lessee
shall pay to the Lessor within 30 days of the said Event of Loss an amount
calculated in accordance with Clauses 16 and 17 hereof as if the date of
loss or destruction was the date of termination by reason of repudiation of
the Agreement in respect of the Equipment.
(c) Any payment received at any time by the Lessor or Lessee from any insurer
with respect to loss or damage to the Equipment shall be applied as
follows:
(i) if such payments are received with respect to any Event of Loss they
shall be paid to the Lessor, but to the extent received by the
Lessor, they shall reduce or discharge, as the case may be, the
Lessee's
17
<PAGE>
obligation to pay the amount due to the Lessor under (b) above with
respect to such Event of Loss; or
(ii) if such payments are received with respect to any loss of or damage
to the Equipment other than an Event of Loss such payments shall
unless an Event of Default shall have occurred and be continuing, be
paid over to the Lessor who shall pay them to the Lessee to
reimburse the Lessee for its payment of the costs and expenses
incurred by the Lessee in replacing or restoring pursuant to (a)
above the part or parts of the Equipment which suffered such loss or
damage. PROVIDED ALWAYS that the Lessor shall not be obliged to make
such payment to the Lessee until such time as the Lessor is
satisfied that all such repairs have been properly effected and that
all costs incurred in relation to such repairs have been paid and
all liens arising therefrom have been released.
11. ASSUMPTION OF RISK AND GENERAL INDEMNITIES
The Lessee:
(a) agrees to assume the entire risk of the operation of the Equipment and,
without limitation:
(i) agrees to use and maintain the Equipment at the risk of the Lessee;
and
(ii) releases to the full extent permitted by law the Lessor from all
liabilities, expenses, claims and demands in respect of any personal
or property damage caused directly or indirectly by the Equipment or
its use or maintenance; and
(b) agrees to pay and to indemnify and hold the Lessor harmless from and
against:
(i) all costs and expenses of installing, operating and maintaining the
Equipment; and
(ii) all liabilities, expenses claims and demands which may at any time
be incurred by the Lessor or made or claimed by any person against
the Lessor directly or indirectly in any manner whatsoever in
connection with the Equipment or this Lease including, without
limitation, those relating to:
(A) the use or operation of the Equipment; or
(B) any failure by the Lessee to observe or comply with any one
or more of its obligations expressed in or implied by this
Agreement;
(c) acknowledges that the instalments of Rent and the Residual Value specified
in the Schedule have been calculated on the _____ of certain tax
assumptions including, without limitation, the rate of company tax payable
by the Lessor, the availability to the Lessor of deductions for
depreciation and assumptions in relation to the tax treatment of the
receipt by the Lessor of instalments of Rent and the Residual Value; and
18
<PAGE>
(d) agrees to pay and to indemnify the Lessor on demand, by way of additional
payments of Rent, and to hold the Lessor harmless from and against the
consequence of any amendment, replacement or alteration in interpretation
or application of any laws, rules or regulations which result in any of the
assumptions referred to in paragraph (c) proving to be incorrect for any
reason whatsoever whether before or after the expiry or termination of the
Agreement and the assumption of risk, acknowledgment and indemnities
contained in this Clause shall survive the expiry or termination of the
Agreement.
12. ESSENTIAL TERMS
(a) The Lessee acknowledges that the following are essential terms of this
Agreement going to the root of this Agreement:
(i) that the Lessee shall pay to the Lessor within 14 days after advice
from the Lessor all moneys from time to time payable by the Lessee
to the Lessor under this Agreement;
(ii) that no event shall occur which shall constitute a repudiation of
any other Agreement entered into pursuant to the Master Lease
Agreement (and whether or not the Lessee is a Lessee under that
Agreement).
(iii) the obligations of the Lessee in Clause 5(b), (c) and (e), 7(f),
7(g), 8, 9; and
(iv) if the Lessee fails to comply with any of its obligations under this
Agreement other than a payment obligation or an obligation referred
to in sub-paragraph (ii) and (iii), the Lessee shall comply with
that obligation or remedy that failure to the Lessor's satisfaction
within 14 days of notice from the Lessor requiring it to comply with
that obligation or remedy that failure.
(v) Any Event of Default other than that referred to in clause 13(a)
shall occur and continue for a period of fourteen (14) days.
(b) Any breach of any of the essential terms referred to above shall constitute
a repudiation of this Agreement by the Lessee entitling the Lessor to
accept such repudiation and by notice in writing to terminate this
Agreement and the Lessee's right to possession of the Equipment.
13. EVENTS OF DEFAULT
If any of the following events occur:
(a) the Lessee breaches any essential term of this Agreement;
(b) notice is given to the Lessor that any insurance policy required under
Clause 9 is to be cancelled or materially adversely modified and a fresh
policy or insurance which ensures compliance with Clause 9 is not taken out
prior to the expiry of such notice;
(c) any representation or warranty made by the Lessee in this Agreement proves
to have been untrue in any respect when made;
19
<PAGE>
(d) any mortgage, charge or other encumbrance created or assumed by the Lessee
over any of its assets is enforced;
(e) any present or future indebtedness of the Lessee for financial
accommodation, borrowed or raised or under any lease or hiring arrangement
becomes due and payable or capable of being declared due and payable prior
to the stated date of maturity of such indebtedness due to a default or is
not paid when due and payable or within any period of grace or if any
indemnity in respect of any guarantee of indebtedness of the Lessee is not
met when due and called upon;
(f) a liquidator, official manager, trustee, receiver, receiver and manager or
similar officer is appointed in respect of any of the assets of the Lessee;
(g) a distress, attachment or other execution is levied or enforced upon or
against any assets of the Lessee;
(h) any steps or proceedings are taken to have the Lessee wound up or declared
bankrupt;
(i) there is any change in the operations, business, assets (financial or
otherwise) management, ownership or control of the Lessee or any other
event or circumstance occurs or comes into existence which in the opinion
of the Lessor would have a material adverse affect on the ability or
willingness of the Lessee to perform its obligations under this Agreement;
or
(j) any of the foregoing occurs with respect to any party which has given
security or a guarantee to the Lessor in respect of the Lessee's
obligations under this Agreement,
THEN at any time thereafter the Lessor may (but without prejudice to its
ability to exercise any other rights and powers under this Agreement) at
its option:
(i) proceed to enforce the performance of the applicable provisions of
this Agreement or to recover damages for a breach; or
(ii) by notice in writing to the Lessee to terminate this Agreement and
the Lessee's right to possession of the Equipment.
14. RETURN AND REPOSSESSION OF EQUIPMENT
Upon the expiry or sooner termination of the lease granted under this Agreement
or of any renewal or extension of such lease the Lessee shall at its own expense
returned the Equipment to the Lessor. If the Lessee fails to return the
Equipment the Lessor may, directly or by its agent, take possession of the
Equipment and for that purpose the Lessor directly or by its servants or agents
and with the authority of and as agents of the Lessee may enter upon any land or
premises where the Equipment is or is reasonably suspected of being.
15. RESIDUAL VALUE
20
<PAGE>
If upon the termination or expiration of the Lease the Lessee returns the
Equipment to the Lessor in accordance herewith or the Equipment is otherwise in
the possession of the Lessor, the Lessee shall pay to the Lessor on demand the
amount if any by which the Residual Value exceeds the Value of the Equipment.
If the Value of the Equipment exceeds the Residual Value, the surplus shall be
applied in reduction or satisfaction of any indebtedness of the Lessee to the
Lessor under this Agreement but the Lessee shall have no claim to or interest in
any further surplus.
16. FAILURE TO RETURN EQUIPMENT ON EXPIRATION OR TERMINATION
If upon the termination or expiration of the Lease the Lessee fails to return
the Equipment to the Lessor in accordance herewith and the Lessor has not then
otherwise regained possession thereof, the Lessee shall pay to the Lessor on
demand by way of liquidated or ascertained damages the Residual Value of the
Equipment. If the Lessor subsequently obtains possession of the Equipment the
Lessor shall apply the sum representing the Value of the Equipment in reduction
or satisfaction of the Lessee's indebtedness under this Lease. Any payment by
the Lessee under his or the preceding clause shall be in addition to all other
amounts payable hereunder and shall be to indemnify the Lessor against a capital
loss it would otherwise suffer. Notwithstanding the terms of clause 15 or
otherwise under this clause, where this Lease is terminated prior to the
expiration of the term set out in the Schedule, the Residual Value shall be the
present value at the date of termination of the originally stated Residual
Value, such present value being calculated by discounting the originally stated
Residual Value on a monthly basis at the Rebate Rate over the period in whole
months by which the date of termination is brought forward pursuant to this
clause.
17. PAYMENTS ON EARLY TERMINATION
Upon termination of this Lease (whether pursuant to clause 12 hereof, clause 13
hereof or otherwise) prior to the expiration of the Term the Lessee shall in
addition to any amounts payable under clauses 15 and 16 hereof and in order to
indemnify the Lessor for the loss sustained in respect of rent installments not
then accrued, pay to the Lessor on demand a liquidated debt equal to the sum of
the present values at the date of such termination of each of the installments
of rent not then accrued but which would thereafter have accrued if this
Agreement had not been terminated prior to the expiry of the term. Such present
value shall be ascertained by discounting each such installment of rent on a
monthly basis at the Rebate Rate over the period in whole months by which the
date for payment of each installment is brought forward by virtue of this
clause.
21
<PAGE>
18. HOLDING OVER
If the Lessee continues in possession of the Equipment after the expiration of
the Term or the termination of this Agreement:
(a) without the Lessor's consent -- the Lessee shall pay to the Lessor by way
of liquidated damages for detention a daily sum equal to the amount
obtained by dividing the amount of the last installment of Rent specified
in the Schedule by the number of days in the last rental period; or
(b) with the Lessor's written consent -- the Lessee shall until the return of
the goods pay to the Lessor a daily rental equal to the amount obtained by
dividing the amount of the last installment of Rent specified in the
Schedule by the number of days in the last rental period,
and in either case the Lessee shall carry out and abide by the terms of this
Agreement as far as applicable.
19. SUPPLIER'S WARRANTIES
To the extent possible and permissible the Lessor hereby assigns to the
Lessee during the term of this Agreement, so long as no Event of Default is
subsisting, the benefit of all claims and rights including warranties in respect
of the Equipment which the Lessor may have against any Supplier or any sub-
contractor of any Supplier and the Lessee shall, at its own cost, assert and
enforce all such claims and rights.
The Lessee shall indemnify and keep the Lessor indemnified from and hold
the Lessor harmless against all loss, cost and damage suffered or incurred by
the Lessor arising out of the Lessee exercising its powers and performing its
obligations under this Clause.
20. EXCLUSION OF WARRANTIES
(a) The Lessee acknowledges and agrees to the full extent permitted by law
that:
(i) in deciding to enter into this Agreement the Lessee has not relied in
any way on the Lessor's skill or judgment or on any statements,
representations or warranties made by the Lessor;
(ii) the Lessee will itself prior to any Equipment becoming subject to
this Agreement have selected and examined it and satisfied itself as
to its compliance with its description as well as its condition,
suitability and fitness for the Lessee's purpose and the validity of
any manufacturer's warranties or guarantees and in every other
necessary respect whatsoever;
22
<PAGE>
(iii) the Equipment as delivered is accepted by the Lessee with all faults
and defects (if any) and delivery as herein provided is conclusive
evidence that the Equipment is in good and substantial working order
and condition and constitutes the Equipment the subject of this
Lease; and
(iv) the Lessor is a financier only and gives no condition, warranty or
undertaking and makes and has made no representation in relation to
the condition, suitability, capacity, quality, design, fitness,
safety of or title to the Equipment; and
(v) any provisions which may be implied in this Agreement under any law
shall not be implied in this Agreement except insofar as such
provisions are not capable of being excluded under any such law and
any liability of the Lessor in respect of any such non-excludable
provision is limited to the full extent permitted by law.
(b) Notwithstanding clause 20(a), if the Lessee is a consumer, it shall have
the benefit of the conditions and warranties implied by the Trade Practices
Act 1974 as amended ("the Act") and nothing in this Lease is intended to
exclude, restrict or modify any statutory obligation of the Lessor if that
cannot lawfully be effected. Subject to the foregoing should the Lessor be
liable for a breach of a condition or warranty implied by Division 2 of
Part V of the Act (not being a condition or warranty implied by Section 69
of the Act) the liability of the Lessor for such breach including any
consequential loss which the Lessee may sustain shall, subject to Section
68A(2) of the Act, be limited to one of the following as determined by the
Lessor:
(i) the replacement of the Equipment or the supply of equivalent
Equipment; or
(ii) the payment of the cost of replacing the Equipment or of acquiring
equivalent Equipment.
References to specific provisions of and circumstances arising under the
Act are intended to include references to equivalent or similar provisions
of and circumstances arising under any State or Territory enactment.
(c) Subject to any legislation to the contrary, the Lessee acknowledges and
agrees that:
(i) the Lessor shall not be liable to the Lessor for any liability claim
loss damage or expense of any kind or nature (including any
consequential loss) caused directly or indirectly by the Equipment or
any inadequacy thereof for any purpose or any defect therein or by
the use or condition thereof;
(ii) the Lessor shall be under no liability with respect to any statements
regarding the Lessee's rights or position with respect to any law
relating to taxation or any other matter;
23
<PAGE>
(iii) this Lease and the Lessee's obligations hereunder shall be unaffected
by any loss or damage whatsoever to or breakdown or defect in the
Equipment; and
(iv) the Lessor is not liable under nor are there any conditions or terms
nor any representations specifications or promises of any kind or
description other than those expressly contained herein.
21. UNDERTAKINGS
The Lessee undertakes to the Lessor that:
(a) It will during the term of this Agreement and any extension thereof furnish
to the Lessor:
(i) within 120 days of the close of each financial year of the Lessee,
copies of the balance sheet and profit and loss accounts of the
Lessee. Such accounts shall, if so required by the Lessor, be audited
by a registered company auditor approved by the Lessor.
(ii) at such other times as the Lessor may reasonably require, true and
correct copies of all financial statements, accounts and reports of
the Lessee for such financial year; and
(iii) on demand, such other information showing the financial position of
the Lessee (its related companies and any guarantor or surety) as the
Lessor may reasonably require; and
(b) (where the Lessee is a corporation) it will comply with all the
requirements of the Companies legislation applicable to it.
22. REPRESENTATIONS AND WARRANTIES
The Lessee represents and warrants for the benefit of the Lessor that:
(a) (INCORPORATION): (Where the Lessee is a corporation) it is duly
incorporated and existing under the laws of its place of incorporation, has
the power to own its property and carry on business as now being conducted
and is duly registered and authorized to do business in any place in which
the Equipment will be located;
(b) (POWER): it has the full power and authority (corporate and other) to enter
into and perform this Agreement and all action on its part necessary for
the authorization, execution and performance of this Agreement has been
duly taken;
(c) (AGREEMENT BINDING): this Agreement has been duly executed and delivered by
the Lessee and is a legal, valid and binding obligation of the Lessee
enforceable against it in accordance with its terms;
(d) (NO DEFAULT UNDER OTHER AGREEMENTS): the execution, delivery and
performance of this Agreement does not contravene the
24
<PAGE>
provisions of any law, rule or regulation applicable to the Lessee or
contravene the provisions of or constitute a default under any agreement to
which it is party or which is binding on it or its assets or result in the
creation of any security interest under any such agreement;
(e) (LITIGATION): there is no litigation, tax claim, proceeding or dispute
pending or to its knowledge threatened against or affecting the Lessee or
its property the adverse determination of which might materially adversely
affect its financial condition or impair its ability to perform this
Agreement;
(f) (FINANCIAL STATEMENTS): the Lessee's financial statements furnished to the
Lessor have been prepared in accordance with generally accepted Australian
accounting principles and practices consistently applied and fairly
represent the financial condition of the Lessee as at the date to which
they relate and the results of the Lessee's operations for the accounting
period ended on such date and there has been no material adverse change in
its financial condition or operations since such date; and
(g) (NEGOTIATIONS): every statement made and all information given by it in
relation to the transaction effected by this Agreement is true and correct.
23. STAMP DUTY AND OTHER TAXES
The Lessee shall promptly pay to the Lessor all stamp duty, financial
institutions duty and any other duties, taxes or imposts including fines or
penalties for late payment payable now and in the future in respect of this
Agreement or the Rent or other monies payable under or pursuant to this
Agreement or in consequence of the expiration or termination of this Agreement.
Such payment shall be made a sand when required by the Lessor and in relation to
installments of Rent shall until further notice shall be paid in the amounts set
out in the Schedule on the due date for payment of Rent specified in the
Schedule.
24. NOTICES
(a) The Lessee agrees that all notices required or desired to be given to
either party pursuant to this Agreement shall without prejudice to any
other method of giving the same be in writing and posted by prepaid post to
that party at its address shown in this Agreement or such other address as
that party may notify to the other party and the day following such posting
shall be deemed the day of giving such notice. Proof of such posting shall
be proof of sufficient service on the Lessee.
(b) Any notice required to be given by the Lessor may be signed by a Director,
Secretary or Manager of the Lessor.
25
<PAGE>
25. TRUSTS
In the event that the Lessee enters into this Lease in the capacity of a trustee
of any trust or trusts (hereinafter referred to as "the Trust") the Lessee
hereby agrees that it is empowered under the terms of the Trust to enter into
and execute this Lease and that all necessary consents and preconditions
required by any applicable trust deed before execution hereof by the Lessee have
been given made or done prior to or at the time of execution hereof (as the case
may be) and that:-
(a) the Lessee not only enters into all agreements, undertakings and provisions
herein expressed or implied in its capacity as trustee of the Trust but
shall also enter into the same in its own right and shall be personally
liable for the performance and observance of such agreements, undertakings
and provisions; and
(b) the Lessee has full, complete, valid and unfettered authority and power to
enter into this Agreement pursuant to the terms of the trusts comprising
the Trust including the power to enter into all provisions herein expressed
or implied and which are to be observed and performed by the Lessee and
that the entering into this Agreement by the Lessee is in the due and
proper administration of the Trust and for the benefit of the beneficiaries
of the Trust.
Without limiting the provisions of this clause, any breach of trust by the
Lessee shall constitute a breach of an essential term or condition of this Lease
entitling the Lessor to exercise all rights and remedies which the Lessor is
entitled to exercise upon the occurrence of a breach of any essential term or
condition of this Agreement.
26. COMMISSIONS
The Lessee acknowledges that lessees may from time to time be introduced to the
Lessor by a broker, agent, dealer or other person and in such circumstances the
Lessor may pay a commission, fee or other remuneration to such broker, agent,
dealer or other person. If this Agreement resulted from any introduction, the
Lessee consents to any such payment to any such person and acknowledges that in
calculating the monies payable by the Lessee hereunder the Lessor may have taken
into account any such payment.
27. GENERAL
(a) (ENTRY): Notwithstanding the provisions of Clause 6 the Lessor shall have
the right at any time without prior notice to enter upon any premises where
the Equipment is believed to be to
26
<PAGE>
inspect, observe and/or test its use and to exercise any of its other
rights arising under this Agreement.
(b) (REMEDY): Whenever the Lessee has failed to do anything which it has agreed
to do under this Agreement then the Lessor may (but is not obliged) without
prejudice to any other rights or powers arising from such failure do such
thing by itself or by other but at the expense of the Lessee as if it were
the Lessee. Any costs incurred by the Lessor in so doing shall be payable
forthwith by the Lessee.
(c) (WHOLE AGREEMENT): The provisions contained in the Master Lease Agreement
these Terms and Conditions and the Schedule cover and comprise the whole of
the agreement between the parties to this Agreement with respect to the
leasing of the Equipment.
(d) (NO WAIVER): No failure to exercise and no delay in exercising on the part
of the Lessor any right or remedy under this Agreement shall operate as a
waiver nor shall nay single or partial exercise of any right or remedy
preclude any other or further exercise of that right or remedy.
(e) (REMEDIES CUMULATIVE):The rights and remedies provided in this Agreement
are cumulative and not exclusive of any rights and remedies provided by law
or any other such right or remedy.
(f) (COSTS AND EXPENSES): The Lessee shall upon demand pay to the lessor all
costs, expenses, duties or fees of or incidental to the preparation,
execution to enforcement of this Agreement or the exercise or attempted
exercise of any right or power of the Lessor under this Agreement
including, without limitation, legal costs on a solicitor-client basis.
(g) (OVERDUE INTEREST): Notwithstanding any grace period the Lessee agrees to
pay interest on any moneys from time to time due an unpaid by the Lessee
under this Agreement at the rate per annum certified by the Lessor as being
2% per annum above the relevant interest rate applied by the Lessor in
calculating the Rent installments, from the date when such moneys fall due
for payment (or in the case of moneys due by way of reimbursement for sums
expended from the date of expenditure if earlier) until they are paid or
satisfied (both before and, as a separate independent obligation, after any
judgment).
(h) (SEVERANCE): Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall as to such jurisdiction be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions of this Agreement or effecting the
validity or enforceability of such provision in any other jurisdiction.
(i) (GOVERNING LAW): This Agreement shall be governed by and construed in
accordance with the laws of the State or Territory in which this Agreement
is executed by the Lessor
27
<PAGE>
and the Lessor and Lessee submit to the non-exclusive jurisdiction of the
Courts of such State or Territory.
(j) (CERTIFICATE): A certificate by a manager or the secretary of the Lessor
stating the Lessor's Cost of any item, any amount payable under this
Agreement, the applicable Rebate Rate and the applicable interest rate for
the purpose of calculating the Rebate Rate or the default interest rate for
the purpose of Clause 27(g) shall in the absence of manifest error be
conclusive and binding on the parties to this Agreement.
(k) (ATTORNEYS): Each attorney (if any) executing this Agreement respectively
states that he has at the time of executing this Agreement no notice of the
revocation of the power of attorney under the authority of which he
executes this Agreement.
(l) (SPECIAL CONDITIONS): See Annexure A (if any).
28
<PAGE>
THIS PAGE
HAS BEEN
LEFT BLANK
INTENTIONALLY
29
<PAGE>
SECOND SCHEDULE
PART 1 - DATE
Date:
PART 2 - LESSOR
KE FINANCIAL CORPORATION LIMITED (A.C.N. 002 888 048) Level 5, 9 Castlereagh
Street, Sydney, N.S.W. 2000 Facsimile (02) 231 4660 Telephone (02) 221 7011
PART 3 - LESSEE
LESSEE: Total Energy Systems Limited LESSEE:
ADDRESS: Level 3, 172 Edward Street ADDRESS:
Brisbane QLD 4000
LESSEE: LESSEE:
ADDRESS: ADDRESS:
PART 4 - GUARANTOR
GUARANTOR: GUARANTOR:
ADDRESS: ADDRESS:
GUARANTOR: GUARANTOR:
ADDRESS: ADDRESS:
GUARANTOR: GUARANTOR:
ADDRESS: ADDRESS:
GUARANTOR: GUARANTOR:
ADDRESS: ADDRESS:
30
<PAGE>
PART 5 - AUTHORISED SIGNATORIES
AUTHORISED SIGNATORIES PURSUANT TO CLAUSE 6
NAME: SPECIMEN SIGNATURE 1.x
-------------------
TITLE:
NAME: SPECIMEN SIGNATURE 2.x
-------------------
TITLE:
NAME: SPECIMEN SIGNATURE 3.x
-------------------
TITLE:
IN WITNESS WHEREOF the parties hereto have hereunto set their hands on the _____
day of __________, 199_____.
EXECUTION BY THE LESSEE
IF LESSEE IS A PERSON
(Note: If partnership or business name each partner or proprietor has to sign)
Signed by the Lessee
in the presence of:
________________________ _________________________
Witness Lessee
Signed by the Lessee
in the presence of:
________________________ _________________________
Witness Lessee
IF LESSEE IS A COMPANY
THE COMMON SEAL of Total Energy Systems Limited )
was hereunto affixed in accordance with its )
Articles of Association in the presence of: ) _____________
Director
________________________________
Secretary
31
<PAGE>
THE COMMON SEAL of )
was hereunto affixed in accordance with its )
Articles of Association in the presence of: ) _____________
Director
_________________________________
Secretary
THE COMMON SEAL of )
was hereunto affixed in accordance with its )
Articles of Association in the presence of: ) _____________
Director
_________________________________
Secretary
THE COMMON SEAL of )
was hereunto affixed in accordance with its )
Articles of Association in the presence of: )
Director
_________________________________
Secretary
EXECUTION BY LESSOR
Signed for and on behalf of
KE FINANCIAL CORPORATION LIMITED
by its duly authorised officer _________________________________
EXECUTION BY THE GUARANTOR
IF GUARANTOR IS AN INDIVIDUAL
Signed by the Guarantor
in the presence of:
_________________________________ _________________________________
Witness Guarantor
Signed by the Guarantor
in the presence of:
_________________________________ _________________________________
Witness Guarantor
32
<PAGE>
Signed by the Guarantor
in the presence of:
_________________________________ _________________________________
Witness Guarantor
Signed by the Guarantor
in the presence of:
_________________________________ _________________________________
Witness Guarantor
IF GUARANTOR IS A COMPANY
THE COMMON SEAL of )
)
was hereunto affixed in accordance with its )
Articles of Association in the presence of: ) _____________________
Director
_________________________________
Secretary
THE COMMON SEAL of )
)
was hereunto affixed in accordance with its )
Articles of Association in the presence of: ) _____________________
Director
_________________________________
Secretary
THE COMMON SEAL of )
)
was hereunto affixed in accordance with its )
Articles of Association in the presence of: ) _____________________
Director
_________________________________
Secretary
THE COMMON SEAL of )
)
was hereunto affixed in accordance with its )
Articles of Association in the presence of: ) _____________________
Director
_________________________________
Secretary
THE COMMON SEAL of )
33
<PAGE>
)
was hereunto affixed in accordance with its )
Articles of Association in the presence of: ) _____________________
Director
_________________________________
Secretary
THE COMMON SEAL of )
)
was hereunto affixed in accordance with its )
Articles of Association in the presence of: )_____________________
Director
_________________________________
Secretary
KE FINANCIAL CORPORATION LIMITED
ANNEXURE A
LEASE SCHEDULE No.
This Lease Schedule forms part of the Master Lease Agreement ("the Agreement")
dated __________ between KE Financial Corporation Limited of Level 5, 9
Castlereagh Street, Sydney ("the Lessor") and _______________ of
____________________ ("the Lessee"). All terms and conditions of the Agreement
are incorporated by reference in this Lease Schedule to the same extent as if
fully set out in this Schedule.
SPECIAL CONDITIONS
This is the Annexure marked "A" referred to in the Master Lease Agreement dated
_______________________________
_______________________________
34