EXHIBIT 10.43
MASTER COMMERCIAL HIRE PURCHASE AGREEMENT
WESTERN AUSTRALIA
BETWEEN
GE CAPITAL AUSTRALIA LIMITED
(A.C.N. 008 562 534)
AND
TOTAL ENERGY SYSTEMS LIMITED
(A.C.N. 010 876 150)
MASTER COMMERCIAL HIRE PURCHASE AGREEMENT
Agreement
Number: CE0714
THIS AGREEMENT is made
BETWEEN: GE CAPITAL AUSTRALIA LIMITED (A.C.N. 008 562 534), a company
incorporated in the Australian Capital Territory and having its
principal office at 00 Xxxxxx Xxxxxx, Xxxxx Xxxxxx in the State of New
South Wales, of the one part ("GE Capital")
AND THE PARTY OR PARTIES named and described in the Schedule hereto, of
the other part ("Customer").
PART 1 - PRELIMINARY
1.1 DEFINITIONS
In this Agreement unless the context otherwise requires:
"ACCEPTANCE DATE" means, in relation to any Equipment, the date that the
Supplement for that Equipment is accepted by GE Capital;
"CUSTOMER" means the party or parties described in the Schedule to this
Agreement as the Customer (and where more than one reference to "Customer"
is a reference to them jointly, each of them severally, and to any two or
more of them jointly) and, in the case of an individual, his executors and
administrators and, in the case of a company, its successors;
"EQUIPMENT" means the goods specified in Supplements to this Agreement;
"EXPIRY DATE" means, in relation to any Equipment, the last day of the
Payment Period of the Supplement in which that Equipment is specified or
such other later date as GE Capital agrees to in writing;
"GE CAPITAL" means GE Capital Australia Limited and its successors and
assigns.
"INSTALLATION SITE" means the installation site of any Equipment as
specified by the Customer in a Supplement;
"OFFICER" means a duly authorized representative of GE
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Capital;
"PAYMENT PERIOD" means the period during which the Customer shall make
Periodic Payments as set out in Clause 2.4 hereof;
"PERIODIC PAYMENTS" means the instalments referred to in a Supplement.
"SUPPLEMENT" means a supplement to this Agreement which refers to this
agreement and which has been signed by the Customer and accepted by GE
Capital.
1.2 FORMATION OF AGREEMENT
This Agreement and any Supplement shall not bind GE Capital unless and
until it has been accepted and signed on behalf of GE Capital by an Officer
of GE Capital at its Head Office in Sydney. The signing of this Agreement
and of any Supplement on behalf of GE Capital shall of itself and without
notice thereof to the Customer constitute an acceptance creating a contract
between GE Capital and the Customer. Such acceptance shall be evidenced by
the return to the Customer in the case of this Agreement of an
acknowledgment copy of this Agreement and in the case of any Supplement, an
acknowledgment copy of such Supplement, signed by an Officer of GE Capital.
1.3 TERM OF AGREEMENT
This Agreement shall be effective and bind the Customer from the date from
which it is signed on behalf of GE Capital and shall continue, unless
sooner terminated in accordance with this Agreement, in full force and
effect until all the Customer's obligations hereunder and under any
Supplement are fulfilled.
1.4 SUPPLEMENTS
This Agreement shall be read in conjunction with any Supplement, which
shall be construed as an integral part of this Agreement. The Customer
agrees that a Supplement shall be effective and bind the Customer from the
date on which it is accepted by GE Capital and that the Customer shall be
obliged to take delivery of and take on hire the Equipment specified in the
Supplement and observe and perform its obligations contained herein with
respect to that Equipment as from the date of such acceptance including,
without limiting the generality of the foregoing, its obligations to insure
the Equipment from the date that Equipment is delivered to the Customer.
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PART II - DELIVERY AND METHOD OF PAYMENT
2.1 HIRE
In accordance with the terms and conditions of this Agreement, GE Capital
agrees, at the Customer's request from time to time, to acquire that
Equipment specified in a Supplement and to hire that Equipment to the
Customer.
2.2 COMMENCEMENT OF HIRE
The hire of any Equipment specified in a Supplement shall commence
immediately on the date of the delivery of that Equipment to the Customer
and shall continue, subject to Clause 2.6, and subject to the Customer
exercising its rights under any applicable laws until the last day of the
Payment Period of that Supplement.
2.3 DELIVERY
(a) The Customer shall arrange for delivery of the Equipment specified in
a Supplement to the Customer's Installation Site and ensure that the
Equipment is installed and made ready for operation in accordance with
the manufacturer's specifications, all at no cost to GE Capital.
(b) The Customer agrees that to the extent permitted by law GE Capital
shall have no responsibility to the Customer for or arising out of any
delay in delivery of any Equipment. The Customer and not GE Capital
shall to the extent permitted by law bear the risk of damage to the
Equipment incurred in the course of delivery.
(c) GE Capital does not at any time make any representation or warranty
that the premises in which the Equipment is to be installed are in a
condition suitable for the delivery, installation or operation of the
Equipment.
2.4 PERIODIC PAYMENTS
(a) A Supplement shall specify a payment period ("Payment Period") which
shall commence on the first day of the month following the last
Acceptance Date to occur with respect to the Equipment specified in
that Supplement and shall continue for the number of complete calendar
months specified in that Supplement.
(b) The Customer shall pay to GE Capital the Periodic Payments specified
in a Supplement in advance as follows:
(i) the first Periodic Payments shall be paid on the first day of the
Payment Period; and
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(ii) the remaining Periodic Payments shall be paid on the first day of
each and every month (or such other periodic period as may be
specified in that Supplement) during the Payment Period of that
Supplement.
(c) The Periodic Payments specified in a Supplement shall be paid in
Australian dollars to GE Capital at its address specified above or at
such other place as GE Capital may direct.
(d) The Periodic Payments payable in respect of Equipment supplied under
Supplements from time to time shall be calculated by reference to GE
Capital's costs of funds current at the time of acceptance by GE
Capital of such Supplement.
(e) The Customer shall pay any other moneys payable under this Agreement
directly to GE Capital.
2.5 OVERDUE MONEYS
If any Periodic Payment or other moneys payable hereunder remain unpaid for
more than ten (10) days after the due date for payment thereof, the
Customer shall pay interest on those moneys calculated on a daily basis at
the rate equal to the aggregate of the 90 Days Bank Xxxx Swap Reference
Rate as published in the Australian Financial Review on the date on which
the Overdue Moneys first become payable and 4% per annum from and after
such due date until payment of such moneys in fall to GE Capital. The
Customer acknowledges that such interest is a genuine pre-estimate of GE
Capital's cost of funding such overdue moneys and is not a penalty.
2.6 OPTION TO PURCHASE EQUIPMENT
If the Customer is not in breach of any term of this Agreement and no event
of default as specified in Clause 3.15 has occurred that it is continuing,
the Customer may, at any time elect to purchase the Equipment specified in
that Supplement by:
(a) giving fourteen (14) days prior written notice to GE Capital; and
(b) where the Customer elects to purchase that Equipment during the
Payment Period of that Supplement - paying to GE Capital an amount
equal to the Net Balance Due.
Upon receipt by GE Capital of all such moneys on or before the Exercise
Date, GE Capital shall sell that Equipment to the
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Customer on the Exercise Date PROVIDED THAT unless and until the Customer
makes such election, GE Capital shall retain full title and property to and
in that Equipment and the Customer shall be bailee of the Equipment only to
use the same subject to the terms and conditions contained herein.
For the purposes of this Agreement the Net Balance Due shall be the balance
originally payable under the Agreement less any amounts (other than the
deposit) paid or provided, whether by cash or other consideration, by or on
behalf of the Customer under the Agreement and less -
(a) The statutory rebate for terms charges;
(b) If the Customer requires any contract for insurance to be cancelled,
the statutory rebate for insurance, and
(c) If the Customer requires any contract for maintenance to be cancelled,
the statutory rebate for maintenance.
PART III GENERAL TERMS AND CONDITIONS
3.1 USE OF EQUIPMENT
The Customer agrees that the Equipment shall be used in a proper and
skillful manner by properly trained and competent persons in compliance
with the manufacturer's requirements, recommendations and instruction
manuals and with all laws, rules and regulations of the jurisdiction
wherein the Equipment is located from time to time. The Customer shall pay
all costs, expenses, fees and charges incurred in connection with the use
and operation of the Equipment including but not limited to supplies,
fittings and accessories.
3.2 CONTROL OF EQUIPMENT
The Customer shall at all times retain possession and control of the
Equipment and shall not to the extent permitted by law, without the prior
written consent of GE Capital, sell, assign, pledge, lease. mortgage,
charge, let or hire, part with possession of or otherwise dispose of or
deal with the Equipment or any part thereof or its interest therein or any
part thereof, or remove any item of Equipment from the Installation Site
and the Customer shall not agree, attempt, offer or purport to do any such
things.
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3.3 REGISTRATION AND INSURANCE OF MOTOR VEHICLES OR PRESCRIBED GOODS
(a) If the Equipment is a motor vehicle, the Customer shall have and keep
at its own cost the same duly registered at all times as required by
any relevant law in the name of the Customer as if it were the owner
and have and keep the same insured against third party risk to the
extent required by law by a policy insuring to the benefit of both
parties hereto.
(b) If the Equipment consists of goods to which a register of security
interest or encumbrances applies in the relevant State of Territory,
the interests of GE Capital shall be registered in the appropriate
register as owner of the Equipment.
(c) If the Equipment consists of goods GE Capital's title to which may be
defeated by a subsequent bona fide purchaser of the goods for value
without notice of GE Capital's interest, the Customer shall ensure
that the goods are sufficiently identified, marked and displayed so as
to put third parties on notice of the ownership of GE Capital in the
goods. GE Capital may at anytime affix such identifying plates or
marks on or to the goods and will at all reasonable times be given
access to the goods for such purposes. The Customer shall indemnify GE
Capital to the full value of the Equipment should GE Capital's
interest and title to the Equipment be lost through the Customer's
breach of this provision.
3.4 MAINTENANCE AND REPAIRS
(a) The Customer agrees that the Equipment shall be maintained in a proper
and skillful manner by properly trained and competent persons in
compliance with the manufacturer's requirements, recommendations and
instruction manuals and with all laws, rules and regulations of the
jurisdiction wherein the Equipment is located from time to time. The
Customer shall pay all costs, expenses, fees and charges incurred in
connection with maintenance of the Equipment.
(b) The Customer shall keep the Equipment in proper and secure premises
and shall at all times, at its own expense, keep the Equipment in
proper working order and in as good condition and repair as when
delivered (reasonable wear and tear expected) and shall, if the
Equipment shall be or become in any way out of order or in need of
repair, have the same repaired by skilled and competent persons.
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(c) The Customer shall permit GE Capital subject to any restriction in any
law to enter upon the premises whereon the Equipment may or is
supposed to be during the normal business hours of the Customer
provided reasonable notice (except in an emergency where no notice
shall be required) it is first given to the Customer for the purpose
of inspecting and testing the condition thereof or examining the state
of repair thereof and GE Capital may serve upon the Customer a notice
in writing of any defect or damage for the repair or replacement of
which the Customer may be responsible hereunder requiring the Customer
within a reasonable time to repair or replace the same. The Customer
shall to the extent permitted by law at all times comply with the
reasonable requirements of GE Capital as to the repair, renewal or
replacement of any Equipment in respect of which the Customer is
liable. In the event of the Customer failing to carry out the
requirements of GE Capital it shall be lawful but not obligatory for
GE Capital to enter upon such premises with workmen and others and all
necessary materials for the purposes of carrying out such
requirements. The Customer shall reimburse GE Capital on demand for
all costs reasonably incurred by GE Capital pursuant to this Clause.
(d) The Customer shall notify GE Capital in writing immediately if any
defect or fault (except those of a trivial nature) occurs in the
Equipment or if any repairs (except those of a trivial nature) become
necessary for the satisfactory working of the Equipment.
3.5 TAXES, STAMP DUTY AND COSTS
The Customer agrees to pay and indemnify GE Capital to the extent permitted
by law against any and all taxes, costs, fees, duties (including stamp
duty, if any, except where the payment of such stamp duty by the Customer
is prohibited by law) or levies now or hereafter imposed or paid or payable
by GE Capital or payable by the Customer, in respect of this Agreement, any
of the matters contained herein, the Equipment, any Supplement, Periodic
Payments or the receipt by GE Capital of any moneys hereunder, together
with any penalties or fines in respect of late payment or non-payment
thereof and the Customer shall also pay all other costs, expenses and
outgoings (including legal costs on a solicitor and client basis) incurred
by GE Capital in relation to this Agreement or in the exercise or attempted
exercise of any rights or powers conferred on GE Capital hereunder or by
the general law.
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3.6 RISK
(a) The Customer shall bear all risk of loss of, damage to or destruction
of the Equipment from date of delivery to the Customer's premises
until the Equipment is returned to GE Capital whether or not the
Equipment is covered by insurance.
(b) The Customer assumes to the extent permitted by law all risks and
liability for the Equipment and for the use, operation, maintenance,
repair and storage thereof (including but not limited to loss of
profits, loss of revenue, consequential damage, inconvenience or loss
of use for any period of time) and for injuries to or deaths of
persons and damage to property however arising from or incidental to
such use, operation, maintenance, repair or storage whether such
injuries to or deaths of persons be of agents or employees of the
Customer or of third parties or such damage to property be of the
Customer or of third parties.
3.7 INSURANCE
(a) The Customer shall at its own cost and in the name of GE Capital and
the Customer for their respective rights and interests keep the
Equipment insured for an amount not less than the full insurable value
thereof with some reputable insurance company in Australia in such
form and subject to such conditions and covering all such risks as GE
Capital may from time to time require, and, in the absence of any
nomination, against loss or damage occasioned by fire, accident,
theft, windstorm, malicious act- xxxxx, xxxxxxx, explosion, rain,
water, flood, earthquake and lightning. In addition, the Customer
shall at its own cost take out and maintain insurances against public
risk liability and other risks which a reasonably prudent
businessperson would insure against. The Customer shall deliver such
insurances to GE Capital upon demand and shall duly and punctually pay
all premiums necessary for effecting and keeping such insurances in
force and shall furnish to GE Capital upon demand such certificates or
other satisfactory evidence of the maintenance of the insurances
required hereunder.
(b) The Customer shall keep the Equipment insured from the date it is
delivered to the Customer until the same is returned to GE Capital in
accordance with this Agreement.
(c) The Customer shall not do or permit or suffer any act, matter or thing
whereby such insurances may be prejudicially affected or invalidated.
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(d) GE Capital shall be entitled to receive all moneys payable under the
insurances referred to in Clause 3.6(a) hereof and all moneys which
may be payable by 'and any other person in respect of damage to or
loss of the Equipment and the Customer hereby appoints GE Capital its
attorney to recover and/or compromise in its and their names any claim
for loss or damage under those insurances or otherwise and to give
effectual releases and receipts for the same and hereby irrevocably
authorizes GE Capital to appropriate any insurance or other moneys
received by it as its option towards repair and/or restoration of the
Equipment or towards any moneys due or payable by the Customer
hereunder or on any other account whatsoever.
(e) The Customer shall notify GE Capital in writing within twenty four
(24) hours immediately following any loss or damage to the Equipment
howsoever caused or after the occurrence of any event which could or
might lead to a claim under any insurance effected in respect of the
Equipment.
(f) In the event of any total or substantial loss or destruction of any
Equipment, GE Capital may by notice in writing to the Customer
terminate this Agreement with respect to that Equipment and the
Customer shall within seven (7) days of such notice of termination pay
to GE Capital an amount equal to whichever is the greater of:
(i) an amount equal to the amount specified as liquidated damages
pursuant to Clause 3.17 as if such loss or destruction of that
Equipment were a breach of an essential term of this Agreement;
or
(ii) the value of the Equipment immediately prior to such loss or
destruction, such value being certified by a dealer or licensed
valuer in similar or like goods to that Equipment as selected by
GE Capital.
PROVIDED THAT GE Capital shall give credit to the Customer for any
insurance moneys or proceeds of salvage received by it if and when
received but only to the extent of the aforesaid amount.
3.8 INDEMNITIES
(a) The Customer shall to the extent permitted by law indemnify GE
Capital, its representatives and authorized sub-contractors and any
assignee of GE Capital from and against any and all losses, damages,
injuries, claims, liabilities, demands and expenses, including
reasonable
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legal fees and expenses and claims for loss of profits and/or economic
damage, of any nature arising out of the installation, maintenance,
removal, use, repair, condition, storage or operation of the Equipment
or any part thereof.
(b) The Customer shall to the extent permitted by law indemnify GE
Capital. its representatives and authorized sub-contractors xxx any
assignee of GE Capital fro *in and against all losses, damages,
claims, penalties, liabilities and expenses of any nature caused by,
to, or in respect of the Equipment including (without limitation):
(i) loss by seizure under distress for rent, execution or other
legal process; an d
(ii) loss, destruction or damage to the Equipment by fire, accident
or any other cause whatsoever; and
(iii) any claims arising out of the use, operation or keeping of the
Equipment
(c) The indemnities referred to herein shall continue in full force and
effect notwithstanding the termination of this Agreement or any
Supplement with respect to any Equipment.
3.9 OWNERSHIP
Subject to Clause 2.6, the Equipment is, and shall at all times be and
remain, the property of GE Capital or a related company of GE Capital. The
Customer shall have no right, title and interest therein or thereto except
as expressly set forth herein.
3.10 AFFIXATION TO REALTY
Except to the extent necessary to enable the proper use of the Equipment,
the Customer shall not cause or permit the Equipment to be affixed to any
real property or improvements thereon and it is expressly agreed that the
Equipment is, and shall at all times be and remain, personal property
notwithstanding that the Equipment or any part thereof may now be or
hereafter become, in any manner, affixed or attached to real property or
any improvements thereon and it shall not thereby become or be deemed to
become a fixture.
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3.11 ACKNOWLEDGMENT OF GE CAPITAL'S INTEREST
The Customer shall not install, use or place the Equipment or cause or
suffer it to be installed, used or placed, upon any premises held or
occupied by it as lessee, under-lessee or licensee or which are the subject
of any mortgage or charge unless the Customer shall first deliver to GE
Capital an acknowledgement in writing signed by the owner of the premises
and/or the mortgagee or chargee, as the case may be, that the Equipment is
and shall remain the property of GE Capital and shall not be or become
landlord's fixtures or a part of the land or subject to any such mortgage
or charge notwithstanding that the Equipment may be affixed to the land in
any manner whatsoever and that GE Capital may at any time enter on 6e
premises and detach and remove such of the Equipment as shall be on the
premises.
3.12 LIENS OVER EQUIPMENT
The Customer shall not suffer any encumbrance, charge or lien of any kind
to arise or remain on the Equipment arising or resulting from any act of
the Customer except:-
(a) a repairer's lien in which event the Customer shall take the necessary
steps to have it removed or satisfied forthwith provided however that
if GE Capital so determines it may remove or satisfy the lien at its
cost and the Customer shall indemnify GE Capital therefore; and
(b) such lien or charge as may arise by law in respect of unpaid rates,
taxes, fees or duties of any kind whatsoever in which event the
Customer shall forthwith pay the same so that the Equipment will be
free of any lien or charge.
3.13 ASSIGNMENT AND SUB-CONTRACTORS
The Customer shall not to the extent that such a restriction is permitted
by law, without the prior written consent of GE Capital, assign this
Agreement or any of its rights hereunder. GE Capital may assign this
Agreement or any of its rights hereunder and may sell, assign, pledge,
mortgage, charge or otherwise dispose of or deal with the Equipment or any
part thereof or its interest therein or any part thereof. GE Capital may,
in its absolute discretion, sub-contract any of its obligations under this
Agreement.
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3.14 ESSENTIAL TERMS
The Customer and GE Capital expressly agree and declare that the Customer's
covenants and obligations contained or implied in:
(a) Clause 2.4 to pay the Periodic Payments specified in any Supplement in
the amounts and at the times specified in that Supplement and to pay
the same punctually;
(b) Clause 3.1 as to the use of the Equipment;
(c) Clause 3.7 to insure the Equipment; and
(d) Clause 3.19 to surrender the Equipment and pay the moneys referred to
therein punctually are essential terms of this Agreement and that the
breach, non-observance or non-performance of any one or more of such
covenants or obligations shall be deemed to be a breach of an
essential term of this Agreement by the Customer PROVIDED THAT the
presence of this Clause in this Agreement shall not mean or be
construed as meaning that there are no other essential terms in this
Agreement.
3.15 DEFAULT
In the event that:
(i) the Customer defaults in the payment of any Periodic Payment or
other sum payable hereunder; or
(ii) the Customer defaults in the observance or performance of any of
the other essential terms referred to in Clause 3.14 hereof, or
(iii) the Customer defaults in the observance or performance of any
other term of condition herein and such default is not remedied
within thirty (30) days after notice thereof to the Customer by
GE Capital; or
(iv) without the prior written consent of GE Capital, whose consent
will not be unreasonably withheld, effective control of the
Customer is altered to any material extent from that subsisting
at the date of this agreement. For the purposes of this clause
effective control" of the Customer means:-
(a) control of the composition of the Board of Directors of
the Customer; or
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(b) control of more than half of the voting power of the
Customer; or
(c) control of more than half of the issued capital of the
Customer excluding any part of it which carries no right
to participate beyond a specified amount in the
distribution of either profit or capital.
(v) where the Customer is a partnership, there is, without the prior
written consent of GE Capital any change in the composition of
the partnership except where such change arises as a result of
death or disability of a partner.
THEN in any such event GE Capital, without prejudice to any other
right or remedy of GE Capital herein contained or implied or at
general law (including the rights of GE Capital under Clause 117 when
the event is also a breach of an essential term of this Agreement),
may at its option to the extent permitted by law and after satisfying
any conditions required by law:
(a) proceed by appropriate court action or actions, either at law or in
equity, to enforce performance by the Customer of the applicable
covenants and terms of this Agreement or to recover damages for the
breach thereof-, and/or (b) by notice in writing to the Customer,
terminate this Agreement with respect to all or any part of the
Equipment hired hereunder, whereupon all the interest of the Customer
in such Equipment (hereinafter referred to as Relevant Equipment")
shall cease (but the Customer shall remain liable hereinafter
provided) and in such event the Customer shall provided GE Capital has
complied with the requirements under any applicable law forthwith
return the Relevant Equipment to GE Capital at such place nominated by
GE Capital.
3.16 RIGHTS OF TERMINATION
Without prejudice to any other rights and remedies of GE Capital hereunder
or at general law, in the event of the termination of this Agreement
pursuant to Clause 3.15(b), GE Capital may to the extent permitted by law:
(i) retain all Periodic Payments and other moneys heretofore paid by
the Customer; and
(ii) provided GE Capital has complied with the requirements under any
applicable law re-hire, re-
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licence or lease or rent all or any part of the Relevant
Equipment for such consideration upon such terms as GE Capital
thinks fit, or, at its absolute discretion, sell all or any part
of the Equipment at public or private sale upon terms as GE
Capital thinks fit.
3.17 LIQUIDATED DAMAGES
(a) Where the Customer breaches or fails to observe or perform an
essential term of this Agreement and GE Capital terminates this
Agreement with respect to any Equipment under Clause 3.15(b) or by
virtue of its rights and remedies at general law, then in addition to
and without prejudice to any other right or remedy of GE Capital
herein contained or implied or at general law, the Customer shall pay
to GE Capital forthwith upon such termination as and by way of
liquidated damages an amount equal to the Net Amount Payable.
(b) The parties acknowledge that GE Capital is not entitled to recover any
sum (whether under a judgment or order or otherwise) which would
together with:
(i) the value of the Equipment at the time of GE Capital taking
possession thereof; and
(ii) the amount paid or provided, whether by cash or other
consideration, by or on behalf of the Customer under the
Agreement, amount to more than the Net Amount Payable in respect
of the Equipment.
For the purposes of this Agreement:
(a) the Net Amount Payable shall be the total amount payable less the
statutory rebates for terms charges, insurance, and maintenance; and
(b) the value of any Equipment at the time of GE Capital taking possession
thereof shall be:
(i) the best price which could be reasonably obtained by GE Capital
at that time; or
(ii) if the Customer has introduced a person who has purchased the
Equipment for cash. the amount paid by such person, less,
(iii) the reasonable costs incurred by GE Capital of and incidental to
his taking possession of the Equipment;
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(iv) any amount properly expended by GE Capital on the storage,
repair, or maintenance of the Equipment; and
(v) (whether or not the Equipment have subsequently been sold or
disposed of by GE Capital) the reasonable expenses of selling or
otherwise disposing of the Equipment.
3.18 OTHER TERMINATION PROVISIONS
(a) GE Capital may to the extent permitted by law ship the Relevant
Equipment to any location it desires in order to effect a re-hire, re-
licence, leasing, renting or sale.
(b) In addition to the foregoing, GE Capital shall to the extent permitted
by law be entitled to recover from the Customer any and all damages
which GE Capital shall sustain by reason of any breach by the Customer
of any of the covenants and terms of this Agreement, together with a
reasonable sum for legal fees (including fees on a solicitor and
client basis) and such expenses as shall be expended or incurred in
the seizure, hire, lease, licence, rental or sale of the Equipment.
(c) The Customer hereby authorizes GE Capital to the extent permitted by
law to enter any premises occupied by the Customer during ordinary
business hours for the purpose of exercising its rights under Clauses
3.16, 3.17 and 3.18.
(d) The rights and remedies herein provided in favour of GE Capital in the
event of default shall not be deemed to be exclusive, but shall be
cumulative and shall be in addition to all other remedies available to
GE Capital at law, in equity or in bankruptcy.
(e) GE Capital may from time to time, and on such conditions as it thinks
fit, waive its rights arising under Clauses 3.15, 3.16, 3.17 and 3.18
or otherwise, but no such waiver shall affect its rights under those
Clauses or otherwise in respect of any further continuing or recurring
default, breach or event and the taking of possession of the Relevant
Equipment by GE Capital shall not constitute a waiver of any claim of
GE Capital for liquidated Damages.
(f) The Customer acknowledges that the amount referred to in Clause 3.17
as Liquidated Damages has been assessed as a reasonable pre-estimate
for loss of profit and other costs and losses incurred by GE Capital
as a result of an
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early termination of this Agreement with respect to the Relevant
Equipment and the establishment costs associated with this Agreement.
(g) Notwithstanding any termination of this Agreement (for breach of an
essential term or otherwise) or the repudiation of this Agreement by
the Customer and the acceptance thereof by GE Capital, the provisions
of Clauses 3.15, 3.16, 3.17 and 3.18 shall continue as remedies
available to be exercised by GE Capital. This Clause shall not limit
the generality of any other Clause which would otherwise survive the
termination of this Agreement.
3.19 SURRENDER
(a) Upon the Expiry Date of any Equipment, the Customer shall, if it has
not elected to purchase that Equipment under Clause 2.6, at its own
cost assemble that Equipment at a place designated in writing by GE
Capital and surrender possession of that Equipment to GE Capital.
(b) If the Customer fails to so surrender possession of any Equipment in
accordance with Clauses 3.19(a) and (b), GE Capital may repossess the
same and for this purpose may exercise the rights and powers referred
to in Clauses 3.15(b), 3.18(b), (c), (d) and (e).
3.20 LIMITATION OF WARRANTIES AND LIABILITY
(a) To the extent permitted by law, all warranties, representations,
promises, conditions or statements regarding any Equipment or services
to be supplied or performed hereunder, either express or implied,
including, without limiting the generality of the foregoing,
warranties, representations, promises, conditions or statements as to
the suitability or fitness of any Equipment or services for any
particular application, other than those expressly referred to herein,
are hereby expressly excluded.
(b) To the extent permitted by law, GE Capital shall under no
circumstances be liable in any way whatsoever to the Customer nor
shall the Customer have any remedy, in respect of any claim (whether
contractual, tortious, statutory or otherwise) for any form of
damages, losses, costs, injury or harm sustained or incurred by the
Customer in consequence of or resulting directly or indirectly out of
the supply, performance or use of any Equipment or in any other goods
or services supplied hereunder or by any third party or out of any
breach,
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default, fault or negligence of GE Capital m" or in connection with
this Agreement or otherwise.
(c) Without limiting the generality of Clause 3.20(b) hereof, but subject
to Clause 3.20(d) hereof to the extent permitted by law, the Customer
agrees that GE Capital shall not be liable in respect of any claim of
the Customer ("whether contractual, tortious, statutory, or otherwise)
for any special, incidental, indirect, or consequential damages or for
any loss of profits, revenue or data even if GE Capital should have
been advised of the possibility of such potential loss or damage. The
Customer is solely responsible to the extent permitted by law for the
protection and backup of all data and software used in conjunction
with the Equipment.
(d) The terms and conditions in this Agreement that exclude or limit GE
Capital liability shall apply only to the extent permitted by law.
Provisions of the Trade Practices Act, 1974 (as amended) and other
statutes from time to time in force in Australia may apply warranties
or conditions or impose obligations upon GE Capital which cannot be
excluded, restricted or modified or cannot be excluded, restricted or
modified except to a limited extent. This Agreement shall be read and
construed subject to any such statutory provisions. If any such
statutory provisions apply, then to the extent to which GE Capital is
entitled to do so, its liability under those statutory provisions
shall be limited at its option to:
(i) in the case of the supply of goods:
(A) the replacement of the goods or the supply of equivalent
goods; or
(B) the payment of the cost of replacing the goods or of
acquiring equivalent goods; or
(C) the payment of the cost of having the goods repaired; or
(D) the repair of the goods; or
(E) the refunding to the Customer of the price or fees paid in
respect of the goods giving arise to the liability; and
(ii) in the case of services:
(A) the supplying of the services again;
(B) the payment of the cost of having the
18
services performed again; or
(C) the refunding to the Customer of any sums paid in respect of
such services.
3.21 DELAYS
GE Capital shall make every effort to perform its obligations to the
Customer on time, but shall not be liable for the consequences of any
delays in performance caused by any event beyond its reasonable control,
including acts of God, war, fire, flood, strike or labour dispute, riot or
civil commotion, sabotage or any act of omission of the Customer or of a
third party.
3.22 LEGAL NOTICE
Unless otherwise provided in this Agreement, any notice required or
permitted to be given hereunder to the parties hereto will be deemed to
have been duly given if in writing and delivered in person or sent by
telegram or telex or mailed by first-class, registered or certified mail,
postage prepaid and addressed to the Customer, or GE Capital, as the case
may be, at its address set forth herein.
3.23 CERTIFICATE
A statement in writing signed by an Officer of GE Capital of an amount due
or owing hereunder as at the date mentioned in such statement and/or as to
any other matter or thing concerning or touching the subject matter of this
Agreement shall, in the absence of manifest error to the extent permitted
by law, be conclusive evidence that such amount is due or owing hereunder
and/or of all such matters or things as are therein set forth.
3.24 WAIVER
(a) No time, indulgence or waiver of its rights under this Agreement
granted or purported to be granted by GE Capital shall prejudice or
effect GE Capital's interest or rights hereunder or constitute a
waiver or release of any breach hereof by the Customer unless made
expressly by notice in writing from GE Capital to the Customer and
then only in respect to the specific breach referred to.
(b) Any failure by GE Capital to insist upon strict performance of any of
the terms and conditions of this Agreement or any delay by GE Capital
in exercising any of its rights and remedies shall not constitute a
waiver or variation of such terms and conditions or a waiver of any
19
default of the remedy therefore.
3.25 SEVERABILITY
If any of the provisions of this Agreement are or shall become
unenforceable, void, voidable or illegal then any such term or provision
shall be of no force or effect whatsoever and shall be severed and be
deemed to have formed no part hereof ab initio and the other provisions of
this Agreement shall continue in full force and effect.
3.26 BLANK SPACES
The Customer herein irrevocably authorizes GE Capital to complete any blank
spaces appearing in this Agreement or in any Supplement.
3.27 ALTERATIONS
Subject to the obligations of the Customer under Clause 3.4, the Customer
shall not make or permit to be made any alterations to the Equipment or
affix or install or permit to be affixed or installed any accessories.
equipment or device thereon or thereto without the prior written consent of
GE Capital and all parts, accessories, equipment or devices which are
affixed to or installed upon or in the Equipment shall be deemed to be part
of the whole and be the property of GE Capital and subject to all of the
terms and conditions of this Agreement.
3.28 THE RIGHTS OF GE CAPITAL
If the Customer fails to carry out any of the provisions of this Agreement,
GE Capital may without prejudice to any of its other rights or remedies do
all things and pay all money necessary to make good such default to the
satisfaction of GE Capital and any moneys so paid shall to the extent
permitted by law be reimbursed to GE Capital upon demand. The Customer
acknowledges that to the extent permitted by law GE Capital is at liberty
to pay any broker or dealer or any other person who may have introduced the
Customer to GE Capital or whom otherwise may have been concerned in
arranging this Agreement a commission or otherwise confer a benefit upon
such person in respect of any such referral or arrangements.
3.29 MISCELLANEOUS
(a) The Customer acknowledges that it has read this Agreement (including
the terms and conditions set out on each page thereof), understands it
and agrees to be bound by it and further agrees that it is the
complete and exclusive
20
statement of the Agreement between the parties which supersedes all
proposals, oral or written. and all other representations,
communications and prior agreements between the parties relating to
the subject matter of this Agreement.
(b) GE Capital may, upon 30 days' prior written notice, modify the terms
and conditions of this Agreement provided that such modifications
shall not only be applicable to Supplements accepted by GE Capital
following the 30 day period but otherwise, except for the foregoing,
the terms of this Agreement may not be amended, modified or rescinded
except by a written instrument signed by all parties, provided that
any such instrument shall only be binding upon GE Capital when signed
on its behalf by an Officer of GE Capital at its Head Office.
(c) The terms and conditions contained in this Agreement shall prevail
notwithstanding any variance with the terms and conditions of any
order or other documentation submitted by the Customer.
(d) This Agreement shall be construed in accordance with and be governed
by the laws in force in State of Western Australia and the parties
hereby submit to the non-exclusive jurisdiction of the Courts of that
State.
(e) Subject to the Customer's observing and performing all its covenants
and obligations hereunder, GE Capital shall ensure that Customef s
quiet possession of the Equipment hired hereunder is not disturbed by
GE Capital or any person claiming through or under GE Capital.
(f) Clause headings are for ease of reference only and shall not affect
the construction of this Agreement.
(g) When two or more parties are named in the Schedule to this Agreement
as the Customer, all covenants, agreements, conditions and obligations
contained herein shall bind those parties and any two or greater
number of them jointly and each of them severally.
(h) Any gender shall include every other gender and the singular shall
include the plural and vice versa.
(i) Notwithstanding any other provision in this Agreement:
(i) this Agreement is to be read and construed subject to any
applicable law; and
(ii) to the extent that the Customer has rights under
21
any applicable law this Agreement is to be read and construed
subject to those rights.
(j) Terms defined in the Hire Xxxxxxxx Xxx 0000 (Western Australia) shall
have the same meaning when used in this agreement.
22
IN WITNESS WHEREOF the parties to this Agreement have hereunto set their hands
and seals on the respective dates indicated below:-
THE COMMON SEAL of )
TOTAL ENERGY SYSTEMS LIMITED )
(A.C.N. 010 876 150 )
was hereunto affixed on the 14/th/ )
day of November , 1994 )
by the authority of a resolution )
of the Board of Directors )
in the presence of: )
) ________________________
Director
___________________________________
Director/Secretary
ACCEPTED for and behalf of GE Capital Australia Limited by its duly authorized
Officer on the 21/st/ day of November, 1994.
_______________________________________
Authorized Officer
SCHEDULE
Name Of The Customer: TOTAL ENERGY SYSTEMS LIMITED
(A.C.N. 010 876 150)
Address Or Registered Office: 0XX XXXXX, 000 XXXXXX XXXXXX
Xxxxx Xx Xxxxxxxxx Of Incorporation: XXXXXXXX XXX 0000
23
GE CAPITAL AUSTRALIA LIMITED
(A.C.N. 008 562 534)
S U P P L E M E N T
-------------------
________________________________________________________________________________
CE0714S1 PREPARED 01/11/1994
This Supplement shall be read in conjunction with and subject to the Master
Commercial Hire Purchase Agreement Number:
CE0714 DATED 21/11/1994
________________________________________________________________________________
Customer TOTAL ENERGY SYSTEMS LIMITED
Name: (A.C.N. 010 876 150)
Address: 0/XX/ XXXXX, 000 XXXXXX XXXXXX
XXXXXXXX XXX 0000
________________________________________________________________________________
EQUIPMENT DESCRIPTION
________________________________________________________________________________
LOCATION: PICADILLY STREET
GOVERNMENT EXPLOSIVE MAGAZINE
XXXXXXXXXX XX 0000
Invoice Total Energy Systems Limited
------- ----------------------------
One (1) only Isuzu FVZ 1400 Medium Cab Chassis with:
10,000.00 litre stainless steel tank, Acid Add Tank and
Pumps, Water injection systems, Rexroth Hydraulic System 3"
Two Stage Stainless Steel Mono Pump
Engine Number: 626582
Vin Number: XXXXXX00XX0000000
* PERIOD OF COMMERCIAL HIRE PURCHASE AGREEMENT:
SIXTY (60) MONTHS
* Commencement Date: 15/TH/ DAY OF NOVEMBER 1997
* COMMERCIAL HIRE PURCHASE SUMMARY:
Proposed Customer: TOTAL ENERGY SYSTEMS LIMITED
(A.C.N. 010 876 150)
3RD FLOOR, 000 XXXXXX XXXXXX
XXXXXXXX XXX 0000
Owner: GE Capital Australia Limited
(A.C.N. 008 562 534)
Xxxxx 0, 00 Xxxxxx Xxxxxx
Xxxxx Xxxxxx XXX 0000
Dealer: Total Energy Systems Limited
(A.C.N. 010 876 150)
0/xx/ Xxxxx, 000 Xxxxxx Xxxxxx
XXXXXXXX XXX 0000
Guarantor: LSB INDUSTRIES, INC
00 XXXXX XXXXXXXXXXXX
XXXXXXXX XXXX
XXXXXXXX 00000
XXXXXX XXXXXX OF AMERICA
Guarantor:
Short description of Goods: ISUZU FVZ 1400 MEDIUM CAB AND CHASSIS
New/Secondhand
Year: 1993 Model: FVZ 1400 MEDIUM
Colour: WHITE
Instalments:
SIXTY (60) PERIODIC PAYMENTS OF $3,664.00 PAYABLE MONTHLY IN
2
ADVANCE COMMENCING FROM 15/TH/ NOVEMBER 1994.
3
To: GE Capital Australia Limited
XX Xxx 00000
Xxxxx Xxxxxx XXX 0000
Being: 60 payments of $3,664.00
------- ---------
-- payments of ----
------- ---------
1 final payment of $8,562.00
------- ---------
* INSTALLATION SITE:
The equipment listed on this Supplement will be located/installed at:
PICCADILLY STREET
GOVERNMENT EXPLOSIVES MAGAZINE
XXXXXXXXXX XX 0000
* OTHER INFORMATION:
CASH PRICE: $171,245.56
-------------
Less Deposit:
(a) Money -----
-------------
(b) Other-Trade-In Allowance -----
-------------
RESIDUE:
Add: Maintenance -----
-------------
Freight -----
-------------
Vehicle Registration Fees -----
-------------
Insurance -----
-------------
Agreement Registration Fees -----
-------------
Stamp Duty -----
AMOUNT FINANCED:
-------------
Add: Terms Charges $ 57,156.44
-------------
(Percentage Rate 11.93%)
Balance originally payable under
the agreement $171,245.56
-------------
Add: Deposit above -----
-------------
TOTAL AMOUNT PAYABLE:
(Including Deposit) $228,402.00
-------------
The customer is reminded that terms charges may differ from one hire-purchase
credit provider to another and it will be in the customer's best interests to
make enquiries to satisfy itself that
4
it is receiving the best deal in terms charges.
Duly executed for and on behalf of:
TOTAL ENERGY SYSTEMS LIMITED
----------------------------------
(A.C.N. 010 876 150)
----------------------------------
By its duly authorized officer:
/s/ Xxxxxxx X. Xxxxxx
----------------------------------
Please print name: Xxxxxxx X. Xxxxxx
----------------------------------
Title: Director - Financial Controller
----------------------------------
Date: 14/11/94
----------------------------------
ACCEPTED for and behalf of GE Capital Australia Limited by its duly Authorized
Officer on the 21/st/ day of November 1994.
__________________________________
Authorized Officer
GE Capital Australia Limited (A.C.N. 008 562 534),
a company incorporated in the Australian Capital
Territory and having its registered office at:
00 Xxxxxx Xxxxxx, Xxxxx Xxxxxx in the
State of New South Wales.
5
