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EXHIBIT 4.35
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VOLVO FINANCE
MASTER FINANCE LEASE
Contract No.
THIS AGREEMENT is made on 1 November 2000.
BETWEEN: VOLVO TRUCK FINANCE AUSTRALIA PTY LIMITED
ABN 83 071 774 233 ("Volvo Finance"), 350 Eastern Valley Way,
Chatswood, NSW, 2067
Telephone: (02) 9903 9200
Facsimile: (02) 417 7177
AND:
Name of Lessee: Dome Resources N.L. ACN 086 277 616
Address: Level 4, South Shore Centre, 83 South Perth Esplanade, South Perth
WA 6151
Telephone: 08 9474 3433
Facsimile: 08 9474 3953
AGREEMENT
STANDARD TERMS AND CONDITIONS
1. INTERPRETATION
1.1 The following words have these meanings in this Agreement unless the
contrary intention appears:
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"AUTHORISED REPRESENTATIVE" MEANS:
(a) in relation to Volvo Finance:
(i) an employee of Volvo Finance whose title contains the
word "manager" or a cognate term;
(ii) a person performing the functions of any of them; and
(iii) a lawyer for Volvo Finance; and
(b) in relation to any other party to this Agreement or a Lease
Agreement:
(i) if that party is a corporation, a director or secretary
of that party, a specimen of whose signature has been
completed on the execution pages of this Agreement; and
(ii) a person appointed by that party with the right to act as
the agent of that party for the purpose of this Agreement
or that Lease Agreement whose appointment and rights are
notified in writing by the appointor to Volvo Finance and
a specimen of whose signature is held by Volvo Finance.
"BUSINESS DAY" means a day which is not a Saturday, Sunday or public
or bank holiday in Sydney and Perth.
"CASUALTY OCCURRENCE" MEANS:
(a) The permanent loss of the normal use of the Equipment due to
damage or theft; or
(b) its compulsory acquisition which results in the loss of
possession of it by the Lessee; or
(c) anything which in the insurer's reasonable opinion renders its
repair impractical or uneconomic.
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"COMMENCEMENT DATE" means the date on which the Lessee executes the
Offer.
"CONTROL" of a corporation includes the power (whether it is legally
enforceable or not) to control, whether directly or indirectly, the
composition of the board of directors of that corporation, the voting
rights of the majority of the voting shares of the corporation or the
management of the affairs of the corporation.
"DISCOUNT RATE" means, at any time for the Equipment, the interest
rate which causes the present value of:
(a) each Lease Installment which has not fallen due for payment at
that time; and
(b) the Residual Value,
to equal that part of the purchase price paid or payable for the
Equipment by Volvo Finance which Volvo Finance determines has not been
recouped by it at that time from Lease Installments.
"ENCUMBRANCE" in relation to any property means:
(a) any interest in or right over the property; and
(b) anything which prevents, restricts or delays the registration of
any interest in or dealing with the property,
and includes a Security Interest.
"EQUIPMENT" means the item of equipment described in item 3 of the
Schedule.
"EVENT OF DEFAULT" means any event described in clause 12.1.
"FIRST LEASE INSTALLMENT" means the amount specified in item 5(1) of
the Schedule.
"HOLDING COMPANY" has the same meaning as in section 9 of the
Corporations Law.
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"LEASE AGREEMENT" in relation to the lease of an item of Equipment
means the agreement for the lease of that item on the terms and
conditions contained in this Agreement and the Offer to lease that
item.
"LEASE INSTALLMENTS" means the installments specified in item 5 of the
Schedule.
"LESSEE" means the person named in item 1 of the Schedule.
"MATERIAL ADVERSE EFFECT" means a material adverse effect upon either:
(a) the ability of the Lessee to comply with its obligations under
this Agreement or a Lease Agreement; or
(b) the effectiveness, priority or enforceability of this Agreement
or a Lease Agreement.
"OFFER" means the Lessee's offer to Volvo Finance to lease an item of
Equipment on the terms and conditions contained in its document
entitled "Offer-Master Finance Lease" (in the form of schedule 1) and
this Agreement.
"POTENTIAL EVENT OF DEFAULT" means any thing which, with the giving of
notice, lapse of time or determination of materiality, will constitute
an Event of Default.
"RELEVANT JURISDICTION" means the state or territory named in item 2
of the Schedule.
"RESIDUAL VALUE" for an item of Equipment means the amount specified
as the residual value for that item in item 3 of the Schedule.
"SALES TAX ASSESSMENTS ACTS" means any statute, ordinance, code or
other law in force for the time being relating to the imposition,
assessment or collection of tax on the Equipment.
"SCHEDULE" means the schedule to the Offer.
"SECURITY INTEREST" means any interest in or right over property,
including, without limitation:
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(a) any retention of title to any property; and
(b) any right to set off or withhold payment of any deposit or other
moneys,
which secures the payment of a debt or other monetary obligation or
the compliance with any other obligation.
"SUBSIDIARY" means in respect of a corporation any corporation taken
to be a subsidiary of the first mentioned corporation by section 46 of
the Corporations Law.
"TAX" means a tax, rate, levy, impost and duty (other than a tax on
the net overall income of Volvo Finance) and any interest, penalty,
fine or expense relating to any of them.
"TERM" means the period commencing on the Commencement Date and
terminating on the Termination Date.
"TERMINATION DATE" means the first to occur of the date on which the
last Lease Installment is payable under a Lease Agreement, such other
date as is agreed between Volvo Finance and the Lessee for that Lease
Agreement and the date when the Lease Agreement is terminated.
"TERMINATION VALUE" means, at any time for the Equipment, the sum of:
(a) the Residual Value for that Equipment; and
(b) the amount calculated for the Equipment by Volvo Finance which,
at that time, equals the sum of that part of each Lease
Installment which Volvo Finance determines relates to the
Equipment and which has not fallen due for payment at that time,
discounted to a present value at that time by applying the Discount
Rate for the Equipment.
"TOTAL LEASE INSTALLMENTS" means the total of the Lease installments
specified in item 5 of the Schedule,
"VARIATION" has the meaning given to it in clause 16.5(b).
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"VOLVO FINANCE" means Volvo Truck Finance Australia Pty Limited (ACN
071 774 233).
1.2 CONSTRUCTION
Unless expressed to the contrary:
(a) words importing:
(i) the singular include the plural and vice versa; and
(ii) any gender includes the other genders;
(b) if a word or phrase is defined cognate words and phrases have
corresponding definitions;
(c) a reference to:
(i) a person includes a firm, unincorporated association,
corporation and a government or statutory body or
authority;
(ii) a person includes its legal personal representatives,
successors, assigns, substitutes, including, without
limitation, persons substituted by novation and any other
party to whom it provides security;
(iii) a statute, ordinance, code or other law includes
regulations and other statutory instruments under it and
consolidations, amendments, re-enactments or replacements
of any of them;
(iv) a right includes a benefit, remedy, discretion and power;
(v) an obligation includes any warranty or representation and
a reference to a failure to comply with an obligation
includes a breach of warranty or representation;
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(vi) this or any other agreement includes this Agreement or a
Lease Agreement as varied or replaced and notwithstanding
any change in the identity of the parties;
(vii) provisions or terms of this Agreement or a Lease
Agreement or another document, agreement, understanding
or arrangement includes a reference to both express and
implied provisions and terms;
(viii) time is to local time in Sydney;
(ix) "$" or "dollars" is a reference to the lawful currency of
Australia;
(x) writing includes any mode of representing or reproducing
words in tangible and permanently visible form, and
includes facsimile transmissions;
(xi) any thing (including, without limitation, any amount) is
a reference to the whole or any part of it and a
reference to a group of things or persons is a reference
to any one or more of them;
(xii) the "Equipment" includes any accessories, tyres,
replacement parts, tools, items, things or other
accessories which now or after the date of a Lease
Agreement are supplied with or attached to the Equipment
or any substitute Equipment; and
(xiii) a month means a calendar month;
(d) a reference to this Agreement or a Lease Agreement includes all
schedules, annexures and appendices referred to in it;
(e) a reference in this Agreement or a Lease Agreement to Volvo
Finance's consent or approval means Volvo Finance's prior consent
or approval signed by its Authorised Representative.
1.3 HEADINGS
Headings do not affect the interpretation of this Agreement or a Lease
Agreement.
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2. FINANCE LEASE
2.1 To lease an item of Equipment under this Agreement the Lessee must
deliver to Volvo Finance an Offer signed by the Lessee. An Offer when
delivered is an irrevocable offer to lease the Equipment on the terms
and conditions of the Offer and this Agreement. Volvo Finance may
accept or decline an Offer at its absolute discretion and may make any
acceptance dependent on the Lessee satisfying stated conditions. Volvo
Finance accepts an Offer if it signs the Offer. That acceptance is
effective without a notice to the Lessee.
By its acceptance of the Offer, Volvo Finance agrees to lease the
Equipment to the Lessee and the Lessee agrees to take the Equipment on
lease from Volvo Finance in accordance with its Lease Agreement.
2.2 Neither this Agreement nor a Lease Agreement binds Volvo Finance until
it has been executed by Volvo Finance. This clause is not affected or
prejudiced by reason of any prepayment of money by the Lessee or the
delivery by Volvo Finance of the Equipment to the Lessee. If Volvo
Finance delivers the Equipment to the Lessee before it has executed
its Lease Agreement the Lessee must, from the Commencement Date,
except as to the payment of Lease installments, perform and observe
its obligations under that Lease Agreement.
2.3 Volvo Finance may at any time assign or otherwise dispose of or deal
with its rights under this Agreement or a Lease Agreement but, if it
does any of those things, it must do so subject to the Lessee's rights
under this Agreement or that Lease Agreement. The Lessee may not,
without the consent of Volvo Finance, create or allow to exist a
Security Interest over or an interest in this Agreement or a Lease
Agreement or assign or otherwise dispose of or deal with its rights
under this Agreement or a Lease Agreement.
2.4 The Lessee acknowledges that Volvo Finance may enter into this
Agreement or a Lease Agreement as a principal or an agent.
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3. LEASE INSTALLMENTS
3.1 If Volvo Finance delivers the Equipment to the Lessee before Volvo
Finance has executed its Lease Agreement, the Lessee agrees to pay
Volvo Finance a daily rent equal to one thirtieth of the First Lease
Installment commencing on the date of that delivery and concluding on
the day immediately prior to the day on which Volvo Finance executes
that Lease Agreement. Volvo Finance will, if it executes the Lease
Agreement, apply the interim rent in reduction of the Total Lease
installments payable under that Lease Agreement.
3.2 Subject as provided in the Lease Agreement the Lessee must pay to
Volvo Finance the Lease installments at the time and in the manner
specified in item 5 of the Schedule.
3.3 The Lessee's obligation to pay an amount due under a Lease Agreement
is absolute and unconditional. The Lessee may not for any reason
withhold, or make a deduction from, the whole or any part of any Lease
Installment or other money payable under a Lease Agreement including,
without limitation, because:
(a) the Equipment is defective, damaged, does not operate or is not
in the Lessee's possession; or
(b) the Lessee claims to have a set-off, counter-claim, defence or
other right against Volvo Finance or anyone else.
3.4 The Lessee must make payments to Volvo Finance under each Lease
Agreement:
(a) at a place and in a manner reasonably required by Volvo Finance;
(b) in immediately available funds by 11.00 a.m. local time in the
place where payment is to be made.
3.5 If the Lessee is required by law to deduct or withhold Taxes from any
payment it shall:
(a) make the required deductions and withholdings:
(b) pay in accordance with the relevant law the full amount deducted
or withheld;
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(c) deliver to Volvo Finance the receipt for each payment; and
(d) increase the amount of the payment to Volvo Finance to an amount
which will result in the receipt by Volvo Finance of the full
amount which would have been payable to Volvo Finance if no
deduction or withholding had been required.
3.6 The Lessee must, if required by Volvo Finance, sign an order upon the
Lessee's bankers directing the payment of all money payable under a
Lease Agreement from time to time by debiting the Lessee's bank
account and crediting Volvo Finance's account at the bank nominated by
Volvo Finance.
3.7 The Lessee agrees to pay interest to Volvo Finance on any amount
payable by the Lessee under a Lease Agreement from when it becomes due
for payment, during the period that it remains unpaid, on demand, or
at times determined by Volvo Finance, calculated on daily balances.
The rate to be applied to each daily balance is the rate being 2%
above the interest rate which is implicit in that Lease Agreement
(expressed as a percentage rate per annum).
3.8 Interest which is not paid when due for payment may be capitalised by
Volvo Finance at intervals which Volvo Finance determines from time to
time or, if no determination is made, then on the first day of each
month. Interest is payable on capitalised interest at the rate and in
the manner referred to in clause 3.7.
3.9 The Lessee's obligation to pay the outstanding amount on the date it
becomes due for payment is not affected by clauses 3.7 and 3.8.
3.10 If a liability under a Lease Agreement becomes merged in a judgment or
order, then the Lessee agrees to pay interest to Volvo Finance on the
amount of that liability as an independent obligation. This interest
accrues from the date the liability becomes due for payment both
before and after the judgment or order until it is paid, at a rate
that is the higher of the rate payable under the judgment or order and
the rate referred to in clause 3.7.
4. DELIVERY
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4.1 The Lessee must obtain delivery of the Equipment and if requested by
Volvo Finance, give to Volvo Finance an acknowledgment of delivery of
the Equipment.
4.2 Volvo Finance is not liable:
(a) for the Lessee's failure or delay in obtaining, delivering or
installing the Equipment or putting it in good working order; or
(b) if the wrong Equipment is delivered,
unless the matter is caused by Volvo Finance's wilful and unreasonable
refusal to pay the supplier for the Equipment or permit the Equipment
to be delivered.
5. WARRANTIES NOT TO APPLY
5.1 The Lessee agrees that:
(a) in deciding to enter into this Agreement and each
Lease Agreement the Lessee has not relied in any way
on Volvo Finance's skill or judgment;
(b) the Lessee has thoroughly examined the Equipment
before signing its Lease Agreement and is alone
responsible for satisfying itself at that
examination about the Equipment including, without
limitation, the condition, quality, suitability,
safety and fitness of the Equipment for the Lessee's
purpose, that the Equipment is, or will when
delivered be, in accordance with the description
contained in item 3 of the Schedule and is of a
design, size, capacity, type and manufacture as
selected by the Lessee and the validity of any
manufacturer's, dealer's or supplier's warranties or
guarantees and the entitlements to any patents;
(c) the Equipment is to be used wholly or mainly for the
purpose of a business carried on by the Lessee or by
the Lessee and another person or persons and the
whole or the greater part of the amount specified as
Total Lease installments is or is reasonably
expected to be a loss or outgoing necessarily
incurred in carrying on the business;
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(d) all credit and financial information concerning the
Lessee supplied to Volvo Finance or to any agent,
broker, dealer or any other person who introduces
the Lessee to Volvo Finance is true and correct in
all respects;
(e) neither Volvo Finance nor any of its Authorised
Representatives has given or made any
representation, warranty or undertaking about the
condition or suitability of the Equipment, its
quality, fitness for purpose or safety or about the
Lessee's rights or position in respect of any law
relating to taxation;
(f) it does not have any property or interest in the
Equipment and nothing contained in this Agreement or
the Lease Agreement confers on the Lessee any right
or property or interest in or to the Equipment and
the Lessee is only a bailee; and
(g) Volvo Finance is not responsible for any
representation, promise or statement made in
relation to these or any other matters by any person
who may have initiated, negotiated, introduced or
been involved in any other way with this Agreement
or a Lease Agreement,
5.2 All express and implied terms, conditions and warranties which
otherwise might apply to, or arise out of, this Agreement or a Lease
Agreement are excluded other than:
(a) as provided in this Agreement or the Lease Agreement;
(b) terms, conditions and warranties which by law cannot lawfully be
excluded or modified by agreement including, without limitation,
Part V of the Trade Practices Act 9974 (Cwlth) (other than
implied by section 69 of it).
5.3 If Volvo Finance is liable for a breach of a term, condition or
warranty described in clause 5.2, Volvo Finance's liabilities, to the
fullest extent permitted by law, are limited to any one or more of the
following as Volvo Finance determines in its absolute discretion:
(a) replacing or repairing the Equipment;
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(b) supplying an equivalent item of Equipment;
(c) paying the cost of replacing or repairing the Equipment; or
(d) paying the cost of acquiring an equivalent item of Equipment.
Volvo Finance may not be able to rely on this clause if it is not fair
and reasonable under any law which cannot lawfully be excluded or
modified by agreement including, without limitation, under section
68A(2) and (3) of the Trade Practices Act 1974 (Cwlth).
6. GENERAL UNDERTAKINGS AND MAINTENANCE
6.1 The Lessee must:
(a) give promptly to Volvo Finance any information and
supporting evidence that Volvo Finance reasonably
requests from time to time including, without
limitation, information showing the financial
position of the Lessee, its related corporations and
any guarantor or surety and its parent entity;
(b) notify Volvo Finance promptly if any representation
or warranty made or taken to be made by or on behalf
of the Lessee in connection with this Agreement or a
Lease Agreement is found to be materially incorrect
or misleading when made or taken to be made;
(c) do everything necessary to ensure that no Event of
Default occurs;
(d) on request from Volvo Finance promptly provide Volvo
Finance with a certificate signed by the Lessee or,
if the Lessee is a corporation, 2 directors or a
director and a secretary or the sole director and
secretary of the Lessee which states whether an
Event of Default or Potential Event of Default
continues unremedied;
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(e) notify Volvo Finance promptly after it occurs of
full details of an Event of Default or a Potential
Event of Default, and the steps taken to remedy it.
6.2 The Lessee must use the care of a cautious and prudent owner to
prevent damage to the Equipment or its loss or destruction and must
both as to materials and labour place, keep and maintain the Equipment
in good working order and repair so that it will at all times during
the Term be in first class condition for goods of the type that it is
having regard to the condition in which it was delivered to the
Lessee, fair wear and tear excepted.
6.3 The Lessee may not pledge Volvo Finance's credit or create any lien
upon the Equipment in respect of any maintenance, overhaul,
replacement, repair or modification of the Equipment.
6.4 The Lessee must:
(a) use, keep and service and permit the use, keeping and servicing
of the Equipment only by competent and properly trained and
qualified (and where necessary licensed) personnel and only by
recognised and approved methods and standards of operation and
servicing and only in accordance with the manufacturer's
instructions and recommendations;
(b) arrange for inspection and servicing of the Equipment at such
periods as are recommended by the manufacturer;
(c) in connection with the maintenance and service of the Equipment,
ensure that only genuine or manufacturer approved parts and
accessories in accordance with the manufacturer's recommended
specifications are used;
(d) keep the Equipment in a suitable and safe place in such manner
and with all facilities as specified or recommended by the
manufacturer;
(e) use and permit the use of the Equipment only in accordance with
the normal usage of Equipment of the type that it is having
regard to the general purpose for which it was designed and
manufactured;
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(f) not use or permit the Equipment to be used or operated in
violation of the terms of this Agreement or its Lease Agreement
for any illegal purpose or in any manner or under any
circumstances which would amount to a breach of any law (whether
or not such breach is committed by the Lessee) or which in Volvo
Finance's opinion would be likely to endanger the safety or
condition of the Equipment;
(g) if requested by Volvo Finance at any time during the Term effect
and keep effected any agreement for the maintenance of the
Equipment with a qualified and competent person and upon terms
acceptable to Volvo Finance.
7. REGISTRATION AND INSURANCE
7.1 The Lessee must register the Equipment and keep the Equipment
registered during the Term as required by any applicable law of the
jurisdiction in which the Equipment will normally be garaged or kept
in the name of the Lessee as if the Lessee were Volvo Finance except
where the register is a register of ownership or security interests.
The Lessee may not transfer that registration to another jurisdiction
without Volvo Finance's consent.
7.2 The Lessee must maintain insurance against:
(a) loss, theft or destruction of, or damage to, the Equipment for
its full replacement value; and
(b) public liability for personal injury or property damage arising
in connection with the Equipment for an amount of $20,000,000.
7.3 Each insurance policy must:
(a) have Volvo Finance's interest as owner of the Equipment noted;
and
(b) be in form and substance, and with an insurance company,
acceptable to Volvo Finance.
7.4 The Lessee must give Volvo Finance:
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(a) a copy of any insurance policy referred to in clause 7.2 and any
cover note for that insurance; and
(b) evidence that the Lessee has paid the premium for any of those
policies; and
(c) details of any claim and payment made pursuant to an insurance
policy.
Volvo Finance may in its discretion pay any premium on the Lessee's
behalf and if it does so the Lessee must repay the amount of that
premium to Volvo Finance immediately on demand. Nothing contained in
this clause nor any representation by Volvo Finance relieves the
Lessee from its obligation to ensure that all premiums payable are
paid on or before the due date.
7.5 The Lessee may not without Volvo Finance's consent:
(a) cancel or vary the insurance;
(b) prejudice the insurance so that the insurer could refuse a claim
or pay an amount less than the amount claimed; or
(c) do anything in connection with a claim including, without
limitation, enforcing, conducting, settling or compromising a
claim (limited to $100,000 any one claim).
7.6 The proceeds of the insurances must be applied as follows:
(a) if a claim is made for loss or damage to the Equipment not
amounting to a Casualty Occurrence, in accordance with clause
11.2; and
(b) if a claim is made for loss or damage to the Equipment amounting
to a Casualty Occurrence, in payment of its Termination Value;
and
(c) if a claim is made for third party liabilities, towards
discharging those liabilities.
7.7 The Lessee must notify Volvo Finance immediately upon the occurrence
of any event which could or might give rise to a claim under any
insurance policy effected by the Lessee.
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8. CONTROL OF EQUIPMENT
8.1 The Lessee must allow Volvo Finance at all reasonable times to have
access to the Equipment and Volvo Finance is authorised to enter upon
any premises where Volvo Finance believes the Equipment is located for
the purpose of inspecting or testing the Equipment, affixing to it any
identifying name, number, mark or plate indicating, inter alia, that
the Equipment is the property of Volvo Finance, protecting Volvo
Finance's rights, or exercising Volvo Finance's rights to take
possession of the Equipment.
8.2 The Lessee may not substantially or materially alter the Equipment or
fit any accessories or equipment which are a departure from standard
equipment nor alter, obliterate or conceal or permit or suffer to be
altered, obliterated or concealed any identifying name, number, mark
or plate appearing on or affixed to the Equipment nor affix any signs
or other insignias on the Equipment without the consent of Volvo
Finance and must remove and pay any costs of restoration required as a
result of such fitting or alteration or affixing signs or other
insignias.
8.3 The Lessee must comply with all requirements at law and under any
agreement relating to the Equipment, its possession, use, registration
and licensing and the use of the premises upon which the Equipment is
situated and must make all payments necessary to protect the Equipment
from distress, execution or seizure.
8.4 During the Term the Lessee must not:
(a) conceal the Equipment or attach, affix or secure it to any land
or premises unless its use so requires and then only with the
consent of Volvo Finance;
(b) affix the Equipment to other chattels (other than a chattel which
will form and be used as part of the Equipment).
8.5 The Lessee must keep the Equipment garaged generally at the address
specified in item 3 of the Schedule and may not remove it from that
place except for the purpose of the Lessee's business within the
Relevant Jurisdiction or remove it or permit it to be removed outside
the Relevant Jurisdiction without Volvo Finance's consent.
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8.6 Subject to clause 8.2, all tyres, spare parts or accessories supplied
with or attached to the Equipment now or after the date of its Lease
Agreement are part of the Equipment. If any replacement parts,
accessories, tyres, tools, items, things or other accessories
constituting part of the Equipment or which may from time to time be
incorporated or installed in or attached to the Equipment become worn
out, lost, stolen, destroyed, confiscated, damaged beyond repair or
permanently rendered unfit for use by damage or obsolescence and are
replaced by replacement parts, accessories, tyres, tools, items,
things or other accessories, all of those replacements:
(a) will be the property of Volvo Finance;
(b) will be free and clear of all Encumbrances except the rights of
the Lessee under the Lease Agreement;
(c) must be in as good condition and have a value and utility at
least equal to the items replaced;
(d) in the case of tyres, must be new tyres and not recaps
(retreads); and
(d) in the case of parts and accessories, must be genuine Volvo parts
and accessories and in accordance with the manufacturer's
recommended specifications.
8.7 The Lessee must, prior to any change of its address, notify Volvo
Finance of its proposed new address.
9. COSTS AND EXPENSES
9.1 The Lessee shall pay and if paid by Volvo Finance reimburse to Volvo
Finance:
(a) Volvo Finance's reasonable costs and expenses relating to:
(i) the negotiation, preparation, execution, stamping and
registration of this Agreement and each Lease Agreement
or any document contemplated by it;
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(ii) the monitoring of compliance with the Lessee's
obligations under this Agreement and each Lease
Agreement; and
(iii) any consent, request for consent, communication, waiver
of any right, or the variation (including, without
limitation, a Variation), replacement or discharge of
this Agreement, a Lease Agreement or any document
contemplated by either of them;
(b) Volvo Finance's reasonable costs and expenses in relation to:
(i) the exercise or attempted exercise or the preservation of
any rights of Volvo Finance under this Agreement and each
Lease Agreement; and
(ii) the occurrence of any Event of Default or Potential Event
of Default; and
(c) any Taxes and registration or other fees (including fines and
penalties relating to the Taxes and fees) which are payable in
relation to this Agreement, a Lease Agreement or any document or
transaction contemplated by it.
9.2 A reference to costs and expenses in this Agreement or a Lease
Agreement includes, without limitation, legal costs and expenses on a
full indemnity basis.
10. INDEMNITIES
10.1 The Lessee indemnifies Volvo Finance against any liability or loss
arising from, and any costs, charges and expenses incurred in
connection with:
(a) the payment, omission to make payment or delay in making payment
of an amount referred to in clause 9.1;
(b) a delay in payment of money under this Agreement or a Lease
Agreement;
(c) an Event of Default or the termination of this Agreement and each
Lease Agreement under clauses 12.3 or 12.5;
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(d) the exercise by Volvo Finance of a right, remedy or power under
this Agreement or a Lease Agreement including, without
limitation, under clauses 11.3(d) or 16.12, Volvo Finance's
having to seize or store the Equipment or the sale or the
valuation of the Equipment under clause 13;
(e) any kind of property damage or the death of, or any kind of
injury to, a person caused directly or indirectly by the
Equipment;
(f) any claim made against Volvo Finance in respect of the Equipment,
its ownership (including, without limitation, in registering its
interest as owner of the Equipment), condition, operation or its
maintenance or use including, without limitation, any claim for
infringement of any intellectual property right or a claim for
strict liability;
(g) Volvo Finance having to refurbish the Equipment to the condition
described in clause 13.1(a) when it is not returned in
accordance with that clause;
(h) the Sales Tax Assessment Acts as a result of Volvo Finance
entering into this Agreement or a Lease Agreement or as a result
of anything done by Volvo Finance or the Lessee in connection
with this Agreement or a Lease Agreement;
(i) a representation or warranty made by the Lessee to Volvo Finance
about the operation or applicability of the Income Tax Assessment
Act 1936 proving to be incorrect as a reasonably foreseeable
consequence of that representation or warranty being incorrect;
(j) the Lessee having any right, property or interest in or to the
Equipment; or
(k) any act by Volvo Finance in reliance on any communication
purporting to be from the Lessee or to be given on behalf of the
Lessee,
including, without limitation, liability, loss, costs, charges or
expenses on account of funds borrowed, contracted for or used to fund
any amount payable under this Agreement or a Lease Agreement and
including in each case, without limitation, legal costs and expenses
on a full indemnity basis or solicitor and own client basis, whichever
is the higher.
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10.2 The Lessee shall indemnity each controller (as defined in the
Corporations Law), attorney appointed under clause 18 and Authorised
Representative of Volvo Finance against liability, loss, cost and
expense caused or contributed to by anything Volvo Finance is
indemnified against under clause 10.1 and Volvo Finance holds the
benefit of clause 10.1 for those persons.
10.3 If there is any deficiency between:
(a) an amount payable by the Lessee under this Agreement or a Lease
Agreement which is received by Volvo Finance in a currency other
than the currency payable under this Agreement or that Lease
Agreement because of a judgment, order or otherwise; and
(b) the amount produced by converting the payment received from the
currency in which it was paid into the currency in which it was
agreed to be paid,
the Lessee shall pay to Volvo Finance the deficiency and any loss,
costs or expenses resulting from it.
10.4 Each indemnity in this Agreement and a Lease Agreement is a continuing
obligation, separate and independent from the other obligations of the
Lessee and survives the termination of this Agreement or that Lease
Agreement.
10.5 Anything which the Lessee is required to do under this Agreement or a
Lease Agreement must be done at the Lessee's cost.
11. CASUALTY OCCURRENCE
11.1 Until Volvo Finance receives the Equipment in accordance with its
Lease Agreement, the Lessee is liable for loss or damage to it.
11.2 If the Equipment is damaged, the Lessee must, unless the damage
amounts to a Casualty Occurrence restore the Equipment as far as
possible to the same condition that it was in before the damage
occurred.
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11.3 If a Casualty Occurrence occurs before the end of the Term:
(a) the Lessee must immediately notify Volvo Finance of that fact;
(b) the Lessee must on the next date for payment of a Lease
Installment pay to Volvo Finance:
(i) any arrears of Lease installments and the Lease
Installment which would have been due on that date;
(ii) the Termination Value on that date of the Equipment; and
(iii) any other money then due and payable by the Lessee to
Volvo Finance under the Lease Agreement;
(c) the Lease Agreement terminates on the date on which the payment
under clause 11.3(b) is made; and
(d) Volvo Finance may vary or replace any agreement it has entered
into for funding or hedging its exposure under the Lease
Agreement.
11.4 If Lessee complies with clauses 11.3(a) and (b) in free and clear
funds, Volvo Finance will promptly refund to the Lessee any amount
which Volvo Finance receives from an insurer or another person as a
result of the Casualty Occurrence.
12. EVENT OF DEFAULT
12.1 Each of the following is an Event of Default:
(a) Volvo Finance executes this Agreement or a Lease Agreement and
the Lessee refuses to obtain or take delivery of the Equipment or
to give Volvo Finance an acknowledgment of delivery of the
Equipment within 7 days from the date on which delivery of the
Equipment becomes available;
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(b) the Lessee returns the Equipment to Volvo Finance before the
expiration of the Term;
(c) the Lessee breaches any provision of this Agreement or a Lease
Agreement which in the opinion of Volvo Finance might prejudice
the safety or condition of the Equipment or Volvo Finance's
ability to recover it;
(d) Volvo Finance becomes entitled to retake possession of any goods
from the Lessee in respect of any other leasing or hire purchase
transaction;
(e) the Lessee does not pay any money due for payment by it under
this Agreement or a Lease Agreement within 7 days of its due
date;
(f) the Lessee does not comply with any other obligation under this
Agreement or a Lease Agreement and if that default is capable of
rectification:
(i) it is not rectified within 10 Business Days (or any other
longer period agreed by Volvo Finance) of its occurrence;
or
(ii) the Lessee does not during that period take all action
which in Volvo Finance's opinion is necessary or
desirable to quickly rectify that default;
(g) a warranty, representation or statement made or deemed to be made
by the Lessee in this Agreement or a Lease Agreement or any
document contemplated by or relating to this Agreement or that
Lease Agreement is untrue or misleading in any material respect;
(h) this Agreement or a Lease Agreement is void, voidable or
otherwise unenforceable by Volvo Finance or is claimed to be so
by the Lessee;
(i) it is unlawful for the Lessee to comply with any of its
obligations under this Agreement or a Lease Agreement or it is
claimed to be so by the Lessee;
(j) a default or event occurs which is or is taken to be a default or
an event of default by or in relation to a person (other than
Volvo Finance) under an agreement between the Lessee and Volvo
Finance;
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(k) a distress, attachment or execution is levied or becomes
enforceable against any property of the Lessee;
(l) an authorisation necessary to enable:
(i) the Lessee to comply with its obligations under this
Agreement or a lease Agreement or carry on its principal
business or activity; or
(ii) Volvo Finance to exercise its rights under this Agreement
or a Lease Agreement,
ceases to be in full force and effect;
(m) an event or series of events whether related or not, including,
without limitation, any material adverse change in the property
or financial condition of the Lessee, occurs which has or is
likely to have a Material Adverse Effect;
(n) the Lessee ceases or threatens to cease to carry on its business
or a substantial part of its business;
(o) a person who holds a Security Interest over property of the
Lessee becomes entitled to exercise a right under that Security
Interest against the property to recover any money the payment of
which is secured by that Security Interest or enforce any other
obligation the compliance with which is secured by it;
(p) the Lessee enters into or takes any action to enter into an
arrangement (including a scheme of arrangement), composition or
compromise with, or assignment for the benefit of, all or any
class of the Lessee's creditors or members or a moratorium
involving any of them;
(q) the Lessee is or states that it is unable to pay from its own
money its debts when they fall due for payment;
(r) the appointment of a receiver or receiver and manager in respect
of the property of the Lessee;
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(s) if the Lessee is a natural person:
(i) a petition for the making of a sequestration order
against the estate of the Lessee is presented or the
Lessee presents a petition against himself or herself;
(ii) the Lessee presents a declaration of intention under
section 54A of the Bankruptcy Act 1966; or
(iii) the Lessee dies; or
(t) if the Lessee is a corporation:
(i) the appointment of an administrator, provisional
liquidator, liquidator or person having a similar or
analogous function under the laws of any relevant
jurisdiction in respect of it or any action is taken to
appoint any such person if not set aside or stayed within
14 days;
(ii) an application or order is made for its winding up or
dissolution or a resolution is passed or any steps are
taken to pass a resolution for its winding up or
dissolution if not set aside or stayed within 14 days;
(iii) its dissolution or a notice under section 572 of the
Corporations Law is given to the Lessee;
(iv) it is taken to be insolvent or unable to pay its debts
under any applicable legislation;
(v) anything analogous to or of a similar effect to anything
described above under the law of any relevant
jurisdiction occurs;
(vi) it reduces or takes any action to reduce its capital
other than by the redemption of redeemable preference
shares;
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(vii) it passes or takes any action to pass a resolution of the
type referred to in section 188(2) or section 205(10) of
the Corporations Law;
(viii) it buys or takes any action to buy shares in itself,
other than the insertion in its articles of association
of a provision to the effect that it may buy ordinary
shares in itself;
(ix) an investigation is instituted under the Corporations Law
or other legislation into or an inspector is appointed to
investigate its affairs; or
(x)
(A) the person who Controls or group of persons who
acting together Control it, cease to have that
Control;
(B) if it is a Subsidiary, it ceases to be a Subsidiary
of the company which is its Holding Company at the
date of this Agreement or a company ceases to be a
Subsidiary of the Lessee.
12.2 If the Lessee does not:
(a) pay within 7 days of its due date any money payable under this
Agreement or a Lease Agreement;
(b) in relation to this Agreement or a Lease Agreement, comply with
its obligations under clauses 4.1, 6 (other than clause 6.1(c)),
7 and 8; or
(c) in relation to this Agreement or a Lease Agreement, comply with
its obligations under clause 6.1 (c) with the result that any of
the Events of Default contained in clause 12.1 (other than
clauses 12.1(f)) occurs, then it repudiates this Agreement and
each Lease Agreement.
This clause does not mean that it is not possible for the Lessee to
repudiate this Agreement or a Lease Agreement in other ways.
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12.3
(a) If the Lessee repudiates this Agreement and each Lease Agreement,
Volvo Finance may accept the Lessee's repudiation by notice to
the Lessee terminating this Agreement and each Lease Agreement.
(b) If Volvo Finance gives the Lessee a notice under clause 12.3(a),
the Lessee must immediately return to Volvo Finance in accordance
with clauses 13.1(a)(i) to (iv) inclusive and, if the Lessee
fails to do so, Volvo Finance may repossess the Equipment the
subject of each terminated Lease Agreement. Volvo Finance will
use its best endeavours to sell that Equipment by public auction
with or without reserve or by private treaty or alternatively, in
its absolute discretion, obtain an independent valuation of that
Equipment at its fair wholesale value.
The Lessee must, in respect of each terminated Lease Agreement,
indemnify Volvo Finance for any loss following that termination,
in the amount provided for in clause 12.5.
12.4
(a) If there is a breach of a term which does not constitute a
repudiation, Volvo Finance may terminate this Agreement and each
Lease Agreement by notice to the Lessee.
(b) If Volvo Finance gives the Lessee a notice under clause 12.4(a),
the Lessee must immediately return to Volvo Finance in accordance
with clauses 13.1(a)(i) to (iv) inclusive and, if the Lessee
fails to do so, Volvo Finance may repossess the Equipment the
subject of each terminated Lease Agreement. Volvo Finance will
use its best endeavours to sell that Equipment by public auction
with or without reserve or by private treaty or alternatively, in
its absolute discretion, obtain an independent valuation of that
Equipment at its fair wholesale value. The Lessee must, in
respect of each terminated Lease Agreement, indemnify Volvo
Finance for any loss following that termination, in the amount
provided for in clause 12.5.
12.5 The amount which Volvo Finance may recover as provided in clauses
12.3(b) and 12.4(b) is:
(a) the Termination Value of each item of Equipment on the date of
the termination notice;
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(b) any arrears of Lease installments and any Lease Installment which
would have been due on the date of the termination notice;
(c) any other money then due and payable by the Lessee to Volvo
Finance under this Agreement and each terminated Lease Agreement,
less:
(d) the gross proceeds of sale of each item of Equipment or the
amount of the valuation, as the case may be, less all costs and
expenses incurred by Volvo Finance in selling or obtaining a
valuation of that item; and
(e) the amount of Lease installments (if any) which have been paid in
advance at the date of termination.
12.6 For the purposes of clause 12.5:
(a) where an item of Equipment:
(i) is not sold within one month after first being offered
for sale then the proceeds of sale and the value of that
item will be deemed to be the wholesale value of that
item as determined in good faith by Volvo Finance; or
for any reason does not come into possession of Volvo
Finance within one month after the date of the notice
given under clauses 12.3(a) or 12.4(a), as the case may
be, then the proceeds of sale and the value of ithat item
will be deemed to be zero; and
(b) a reference to a Lease Installment and the Termination
Value excludes any Lease Installment and Termination
Value payable for or applicable to (as determined by
Volvo Finance) an item of Equipment which at the date of
the termination Volvo Finance had not become liable to
acquire from its supplier.
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13. RETURN OF EQUIPMENT
13.1
(a) On the date on which the last Lease Installment is payable under
a Lease Agreement (or such other date as is agreed between Volvo
Finance and the Lessee for that Lease Agreement), the Lessee must
immediately return the Equipment the subject of that Lease
Agreement to Volvo Finance:
(i) in accordance with the terms and conditions of its Lease
Agreement including, without limitation, clauses 6.2, 6.4
and 8.6 of this Agreement;
(ii) in good working order and repair (fair wear and tear
excepted);
(iii) at any place in the Relevant Jurisdiction which Volvo
Finance directs; and
(iv) together with all accompanying materials and documents
and the certificate of registration and, if Volvo Finance
requests, a signed transfer of that registration
certificate to any person Volvo Finance nominates.
(b) If the Lessee does not return the Equipment to Volvo Finance in
accordance with clause 13.1(a):
(i) the Lessee must pay to Volvo Finance by way of liquidated
damages for detention, for each day that the failure
continues, an amount equal to the daily equivalent of the
average Lease Installment payable during the Term; and
(ii) Volvo Finance may, but without any obligation to do so,
repossess the Equipment at any time during that
unauthorised detention.
13.2
(a) If the Lessee returns the Equipment to Volvo Finance in
accordance with clause 13.1(a), Volvo Finance will use its best
endeavours to sell the Equipment by public auction with or
without reserve or by private treaty or alternatively, in its
absolute discretion, obtain an independent valuation of that
Equipment at its fair wholesale
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value. The Lessee must indemnify Volvo Finance for any loss
following that return, in the amount provided for in clause
13.2(b).
(b) The amount which Volvo Finance may recover as provided in clause
13.2(a) is:
(i) the Residual Value of each item of Equipment on the date
of its return;
(ii) any arrears of Lease installments;
(iii) any other money then due and payable by the Lessee to
Volvo Finance under the relevant Lease Agreement,
less the gross proceeds of sale of each item of Equipment or the
amount of the valuation, as the case may be, less all costs and
expenses incurred by Volvo Finance in selling or obtaining a
valuation of that item.
(c) For the purposes of clause 13.2(b) where an item of Equipment;
(i) is not sold within one month after first being offered
for sale then the proceeds of sale and the value of that
item will be deemed to be the wholesale value of that
item as determined in good faith by Volvo Finance; or
(ii) for any reason does not come into possession of Volvo
Finance within one month after the date on which the last
Lease Installment is payable under its Lease Agreement
(or such other date as is agreed between Volvo Finance
and the Lessee for that Lease Agreement), then the
proceeds of sale and the value of that item will be
deemed to be zero.
13.3 If on the date referred to in clause 13.1(a) Volvo Finance consents
to the Lessee remaining in possession of an item of Equipment, clauses
13.1(b) and 13.2 will only come into operation upon the termination of
that extended possession. The extended possession will be on a monthly
basis at a monthly rent equal to the last Lease Installment payable
under the relevant Lease Agreement. The Lessee shall observe and
perform the terms of this Agreement and the relevant Lease Agreement
as far as applicable in connection with that
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extended possession. The extended possession is subject to termination
by one month's notice by Volvo Finance or the Lessee to the other of
them.
13.4 Volvo Finance is not liable to the Lessee in any manner in respect of
any failure or delay to recover or in recovering possession of the
Equipment.
14. QUIET POSSESSION
The Lessee paying the Lease installments reserved and in the manner
provided under the Lease Agreement and punctually observing and performing
its obligations under the Lease Agreement may peacefully possess and enjoy
the Equipment until the expiration of the Term without any disturbance or
interruption from Volvo Finance or any other person or persons lawfully
entitled to do so but subject to the rights of Volvo Finance contained in
this Agreement and the Lease Agreement.
15. NOTICE
15.1 A notice, demand, certification, process or other communication
relating to this Agreement or a Lease Agreement shall be written in
English and may be given by an Authorised Representative of the
sender.
15.2 In addition to any other lawful means, a communication may be given
by:
(a) being personally served on a party;
(b) being left at the party's current address for service;
(c) being sent to the party's current address for service by pre-paid
ordinary mail or, if the address is outside Australia, by
pre-paid airmail; or
(d) facsimile to the party's current number for service.
15.3 The address and facsimile details for each party for service are those
set out in the Schedule.
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Each party may from time to time change its particulars for service by
notice to each other party.
15.4 If a communication is given by:
(a) post it will be deemed received if posted within Australia to an
Australian address 3 Business Days after posting and in any other
case 10 Business Days after posting by airmail;
(b) facsimile and the sender's facsimile machine produces a
transmission report indicating that the facsimile was sent to the
addressee's facsimile, the report will be prima facie evidence
that the facsimile was received by the addressee at the time
indicated on that report.
15.5 If a communication to Volvo Finance is received by it:
(a) after 5.00 p.m.; or
(b) on a day which is not a Business Day;
it will be deemed to have been received on the next Business Day.
15.6 Any process or other document relating to litigation, administrative
or arbitral proceedings relating to this Agreement or a Lease
Agreement may be served by any method contemplated by this clause 16
or in accordance with any applicable law.
16. MISCELLANEOUS
16.1 A certificate by Volvo Finance relating to this Agreement or a Lease
Agreement is, in the absence of manifest error, conclusive evidence
against the Lessee of the matters certified. Volvo Finance is not
obliged to give the reasons for its determination or opinion in
relation to any matter under this Agreement or a Lease Agreement. A
determination or an opinion of an Authorised Representative of Volvo
Finance which is given to the Lessee or otherwise expressed or acted
upon by Volvo Finance as being a determination or an opinion of Volvo
Finance will be deemed to be a determination or opinion of Volvo
Finance.
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16.2 Time is of the essence of any obligation of the Lessee under this
Agreement or a Lease Agreement.
16.3 Volvo Finance may maintain records specifying:
(a) payments made by Volvo Finance for the account of the Lessee
under a Lease 3 Agreement;
(b) payments by the Lessee for the account of Volvo Finance under a
Lease Agreement; and
(c) interest, fees, charges, costs and expenses payable in relation
to a Lease Agreement,
and those records will against the Lessee constitute conclusive
evidence, in the absence of manifest error, of the matters set out in
them.
16.4 The Lessee shall promptly execute all documents and do all things that
Volvo Finance from time to time reasonably requires to:
(a) effect, perfect or complete the provisions of this Agreement, a
Lease Agreement or any transaction contemplated by it;
(b) establish the priority of or reserve or create any Security
Interest contemplated by or purported to be reserved or created
by this Agreement or a Lease Agreement; and
(c) stamp and register this Agreement or a Lease Agreement in any
relevant jurisdiction and by any person that Volvo Finance thinks
fit.
16.5
(a) This Agreement and each Lease Agreement may only be varied or
replaced by a written document duly executed by Volvo Finance.
(b) In the event that the Lessee requests a variation ("VARIATION")
of the Term or of the Equipment rented under a Lease Agreement,
Volvo Finance may in its absolute
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discretion agree to such Variation and forward an Acknowledgement
of Variation of Agreement to the Lessee setting out the details
of any such change. Any Variation shall be effective from the
date specified therein and shall be binding on the Lessee when it
signs that acknowledgement. In the event that a copy of that
acknowledgement signed by the Lessee is not received by Volvo
Finance within 7 days of the date of the acknowledgement, Volvo
Finance may elect not to be bound by the Variation.
16.6 A right in favour of Volvo Finance under this Agreement or a Lease
Agreement, a breach of an obligation of the Lessee under this
Agreement or a Lease Agreement or the occurrence of an Event of
Default can only be waived by a written instrument signed by Volvo
Finance. No other act, omission or delay of Volvo Finance will
constitute a waiver. A single or partial exercise or waiver by Volvo
Finance of a right relating to this Agreement or a Lease Agreement
will not prevent any other exercise of that right or the exercise of
any other right. Volvo Finance and its Authorised Representatives will
not be liable for any loss, cost or expense of the Lessee caused or
contributed to by the waiver of, exercise of, attempted exercise of,
failure to exercise or delay in exercising a right and Volvo Finance
holds the benefit of this clause 16.6 for itself and its Authorised
Representatives.
16.7 The rights of Volvo Finance under this Agreement and each Lease
Agreement are cumulative and are in addition to any of its other
rights.
16.8 Volvo Finance may conditionally or unconditionally give or withhold
any consent to be given under this Agreement or a Lease Agreement and
is not obliged to give its reasons for doing so.
16.9 Any present or future legislation which operates:
(a) to lessen or vary in favour of the Lessee any of its obligations
in connection with this Agreement or a Lease Agreement; or
(b) to postpone, stay, suspend or curtail any rights of Volvo Finance
under this Agreement or a Lease Agreement,
is excluded except to the extent that its exclusion is prohibited or
rendered ineffective by law.
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16.10 The Lessee acknowledges that the Lessee may have been introduced to
Volvo Finance by a broker, agent, dealer or other person and consents
to the payment of any proper and lawfully permissible commission by
Volvo Finance to such broker, agent, dealer or other person on the
Lessee's behalf.
16.11 At its sole discretion Volvo Finance may apply (without notice) any
credit balance in any currency in any account of the Lessee with Volvo
Finance towards satisfaction of any amount then payable by the Lessee
to Volvo Finance under this Agreement or a Lease Agreement, The Lessee
authorises Volvo Finance in the name of the Lessee or Volvo Finance to
do anything (including, without limitation, to execute any document)
that is required for that purpose.
16.12 Volvo Finance may do anything which should have been done by the
Lessee under this Agreement or a Lease Agreement but which has not
been done or which Volvo Finance considers has not been done properly.
16.13 No option to purchase the Equipment is conferred or implied by this
Agreement or its Lease Agreement on the Lessee and there is no option
or agreement either express or implied in the Lessee's favour for the
sale of the Equipment to the Lessee on the expiration of the Term or
at any other time.
17 ATTORNEY
17.1 The Lessee irrevocably appoints Volvo Finance and each of its
Authorised Representatives its attorney with the power:
(a) at any time to:
(i) do everything which in the attorney's reasonable opinion
is necessary or expedient to enable the exercise of any
right of Volvo Finance in relation to this Agreement or a
Lease Agreement;
(ii) complete this Agreement or a Lease Agreement; and
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(iii) appoint substitutes and otherwise delegate its powers
(including this power of delegation); and
(b) after any Event of Default has occurred, to do all acts and
things which the Lessee is obliged to do under this Agreement or
a Lease Agreement.
17.2 Any attorney may exercise any right solely for the benefit of Volvo
Finance and notwithstanding that the exercise of the right constitutes
a conflict of interest or duty. The Lessee by this Agreement ratifies
anything done or not done by the attorney pursuant to the power of
attorney.
17.3 The power of attorney is granted:
(a) to secure compliance by the Lessee with its obligations to Volvo
Finance under this Agreement and each Lease Agreement; and
(b) for valuable consideration (receipt of which is acknowledged)
which includes entry into this Agreement and each Lease Agreement
by Volvo Finance at the Lessee's request.
18. GOVERNING LAW AND JURISDICTION
18.1 This Agreement and each Lease Agreement are governed by and shall be
construed in accordance with the laws of the Relevant Jurisdiction.
18.2 The parties irrevocably and unconditionally submit to the nonexclusive
jurisdiction of the courts of the Relevant Jurisdiction and Papua New
Guinea and any courts which have jurisdiction to hear appeals from any
of those courts and the parties waive any right to object to any
proceedings being brought in those courts.
18.3 No action, regardless of form, arising out of this Agreement or a
Lease Agreement may be brought by either party more than 2 calendar
years after the cause of action has arisen except in the case of
non-payment in which event the appropriate statutory limitation to
actions for collections will apply.
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19. COUNTERPARTS
This Agreement and each Lease Agreement may consist of a number of
counterparts and the counterparts taken together constitute one and the
same instrument.
20. GST
20.1 Definitions
In clause 20, the expressions "adjustment note", "consideration",
"GST", "input tax credit", "recipient" and "taxable supply" have the
meanings given to those expressions in the A New Tax System (Goods and
Services Tax) Act 1999.
20.2 Sums exclude GST
Unless otherwise expressly stated, all prices or other sums payable or
consideration to be provided under this document are exclusive of GST.
20.3 Reduction of other taxes
(a) If the introduction of GST is associated with the abolition or
reduction of any tax, duty, excise or statutory charge which
directly or indirectly affects the net dollar margin of a
supplier in respect of any supply made under this document, the
consideration (excluding GST) payable for the supply will be
varied so that the supplier's net dollar margin in respect of the
supply remains the same.
20.4 Responsibility for GST
(a) Despite any other provision in this document, if GST is imposed
on any supply made under this document, the recipient must pay to
the supplier an amount equal to the GST payable on the taxable
supply.
(b) If the consideration for the taxable supply is varied under
clause 20.3, the GST must be calculated on the varied
consideration.
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(c) The recipient shall pay the amount referred to in clause 20.4 (a)
at the same time that the consideration for the supply is
required to be paid under this document, and the recipient shall
pay the amount in addition to the consideration.
20.5 Reimbursement of expenses
If this document requires a party to reimburse any other party for any
expense, loss or outgoing ("reimbursable expense") incurred by another
party, the amount required to be reimbursed by the first party will be
the sum of:
(a) the amount of the reimbursable expense net of input tax credits
(if any) to which the other party is entitled in respect of the
reimbursable expense; and
(b) if the other party's recovery from the first party is a taxable
supply, any GST payable in respect of that supply.
20.6 Tax invoice
The supplier must provide the recipient with a valid tax invoice or an
adjustment note at or before the time of payment or variation.
20.7 Adjustment
If the amount of GST paid or payable by the supplier on any supply
made under this document differs from the amount of GST paid by the
recipient, because the Commissioner of Taxation lawfully adjusts the
value of the taxable supply for the purpose of calculating GST, then
the amount of GST paid by the recipient will be adjusted accordingly
by a further payment by the recipient to the supplier of the supplier
to the recipient, as the case requires.
EXECUTED as an agreement
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EXECUTION PAGE
EXECUTION BY LESSEE
(CORPORATE LESSEE)
The Lessee certifies that below are the signatures of each Authorised
Representative of the Lessee:
Name Position held Signature
Julian Tamby-Rajah Director /s/ J. Tamby-Rajah
Barry Colin Boutho Director /s/ B. Boutho
THE COMMON SEAL of DOME RESOURCES
N.L. was affixed in the presence of:
/s/ Barry Colin Boutho Director
Barry Colin Boutho Name of Director
/s/ Julian Tamby-Rajah Secretary/ Director
Julian Tamby-Rajah Name of Secretary/ Director
EXECUTION BY VOLVO FINANCE
SIGNED for and on behalf of VOLVO TRUCK /s/ D. Elloit
FINANCE AUSTRALIA PTY LIMITED by its -------------------------
Authorised Representative, David Elliott, Authorised representative
in the presence of:
/s/ Wayne Manley Witness
Wayne Manley Name of Witness (print)
[LAST SIGNED 1 NOVEMBER 2000]
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Page 40
SCHEDULE 1
VOLVO FINANCE
OFFER - MASTER FINANCE LEASE
Contract No. 5147
To: VOLVO TRUCK FINANCE AUSTRALIA PTY LIMITED ABN 83 071 774 233 ("VOLVO
FINANCE"), 350 Eastern Valley Way, Chatswood NSW 2067
Telephone: (02) 9903-9200
Facsimile: (02) 9903 9222
The person or persons named in item 1 of the Schedule ("LESSEE") offer to
lease from Volvo Finance the Equipment described in item 3 of the Schedule
upon and subject to the terms and conditions set out below and contained in
the Master Finance Lease dated 1 November 2000 between Volvo Finance and
the Lessee.
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Page 41
SCHEDULE
1. Name of Lessee: Dome Resources N.L. (ACN 086 277 616)
Address: Level 4, South Shore Centre, 83 South Perth Esplanade, South Perth -
WA6151
Telephone: 2. State:-NSW
Facsimile:
3. Description of Equipment
<Table>
<Caption>
- ------------------------------------------------------------------------------------
Make Equipment Year Body Type Colour Engine No.
Volvo Type/Model 2000 Articulated 130562
A25C 6x6 Dump Truck
- ------------------------------------------------------------------------------------
<Caption>
Chassis No. 12590 Reg. No. Kilometres
N/A
<Caption>
- ------------------------------------------------------------------------------------
Make Equipment Year Body Type Colour Engine No.
Volvo Type/Model 2000 Articulated 131781
A25C 6x6 Dump Truck
- ------------------------------------------------------------------------------------
<Caption>
Chassis No. 12632 Reg. No. Kilometres
N/A
</Table>
Options/Accessories
Address where Equipment will normally be garaged or kept:
Australia and Tolukuma gold mine PNG
Residual Value:
$53,732.60
4. Term: 36 months from the date of this offer -1 November 2000
5. LEASE INSTALLMENTS;
The Total Lease Installments must be paid as follows:
(1) The First Lease Installment is $16,411.91 comprising $16,112.05 rent with
$290.02 stamp duty and $9.84 FID.
(2) Each subsequent Lease Installment must be paid by 35 monthly Installments of
$16,411.91 each, comprising $16,112.05 rent with $290.02 stamp duty and $9.84
FID.
The First Lease Installment must be paid on the date of this offer and each
subsequent Lease Installment must be aid on the same day in each succeeding
month.
SPECIAL TERMS AND CONDITIONS
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Page 42
The Lessee, and if more than one, each Lessee:
1 acknowledges having received from Volvo Finance PRIOR to signing this
Offer:
(a) a copy of this Offer and the Schedule; and
(b) a copy of the Master Finance Lease;
2 acknowledges that before signing this Offer it has received, read and
understands the provisions of this Offer and the Master Finance Lease. The
Lessee agrees to be bound by the agreement formed by the acceptance of this
Offer, on the terms and conditions set out in this Offer and the Master
Finance Lease. To induce Volvo Finance to accept this Offer the Lessee
agrees that:
(a) the provisions of the Master Finance Lease are incorporated in and
shall be read and construed as part of this Offer;
(b) a reference in the Master Finance Lease to an item "of or "in the
Schedule" is a reference to the applicable item in the Schedule to
this Offer; and
(c) it will perform and observe the provisions contained in the agreement
formed by the acceptance of this Offer and the Master Finance Lease.
3 declares that the Lessee has thoroughly examined the Equipment and depended
on the Lessee's own judgment;
4 declares that the Lessee is not insolvent or bankrupt;
DATE OF THIS OFFER: 1 NOVEMBER 2000
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Page 43
EXECUTION BY LESSEE
[CORPORATE LESSEE)
SIGNED for and on behalf of DOME
RESOURCES N.L by its Authorised Authorised representative
Representative in the presence of:
______________________ Witness
______________________ Name of Witness (print)
EXECUTION BY VOLVO FINANCE
SIGNED for and on behalf of VOLVO
TRUCK FINANCE AUSTRALIA PTY Authorised representative
LIMITED by its Authorised Representative
in the presence of:
______________________ Witness
______________________ Name of Witness (print)