Application No.: PRESTIGE LEASE STANDARD LEASE TERMS AND CONDITIONS (Reference ) 1 Interpretation 1.1 Definitions In the interpretation of this Agreement, unless the context otherwise requires: 'Act' means any act, statutory rule, ordinance, regulation, by-law, proclamation, order or any other provision lawfully made by the Parliament of any State or Territory of Australia or of the Commonwealth of Australia; 'Agreement' means the Agreement on the terms and conditions contained herein and in the Offer arising upon acceptance by Alphera Financial Services of the Offer; 'Alphera Financial Services' means BMW Australia Finance Ltd ABN 78 007 101 715, Australian Credit Licence No. 392387 trading as Alphera Financial Services, its successors and assignees; Australian Consumer Law means the Australian Consumer Law contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth); 'Business Day' means a day on which banks are open generally for business in State; 'Commencement Date' means the date of execution of this Agreement by the Lessee; 'Commencement Value' means the invoice price of the Goods paid by Alphera Financial Services; 'Consumer' has the meaning provided to it in section 3 of the Australian Consumer Law; Consumer Guarantee means any consumer guarantee provided under Division 1 of Part 3-2 of the Australian Consumer Law; 'Controller' means an administrator, a receiver, a receiver and manager, an official manager or deputy official manager, a trustee, and provisional liquidator, or a liquidator, or controller appointed pursuant to the Corporations Act or any person who purports to act in any of these capacities; 'Corporations Act' means the Corporations Act 2001 (Cth); 'Default Rate' means the rate of 8% per annum; 'First Instalment' means the amount specified in item 4(1) of the Schedule; 'Goods' means the Goods described in item 2 of the Schedule and includes any accessories, tyres, replacement parts, tools, items, things or other accessories which now or hereafter are supplied with or attached thereto or any goods acquired in substitution therefore; 'GST' means has the same meaning given in A New Tax System (Goods and Services Tax) Act 1999 (Cth); 'Guarantee' means the guarantee and indemnity contained herein; Prestige Lease Standard Lease Terms and Conditions Page 1 of 20 2548656154046 2 548656 154046 2548656154046
'Guaranteed Obligations' means the obligations on the part of the Guarantor contained in clause 22 of this Agreement; 'Guarantor' means the guarantor and its successors and administrators and if there is more than one person comprised in the guarantor each such person and its respective administrators and successors jointly and severally; 'Instalments' means the instalments specified in item 4(2) of the Schedule; 'Lease' means the lease of the Goods pursuant to this Agreement; 'Lessee' means the lessee named and described in item 1 of the Schedule and its successors, administrators and permitted assigns and if there is more than one person comprised in the lessee each such person and its respective successors, administrators and permitted assigns jointly and severally; 'Loyalty Bonus' means a reduction to the establishment fee payable under this document; 'Month' means a calendar month; 'Offer' means the offer to lease signed by the Lessee and the Guarantor(s) (if any) which incorporates this Agreement; 'Officer of Alphera Financial Services' means any director, secretary or manager of Alphera Financial Services of whatever description and any other person designated by Alphera Financial Services as duly authorised officer; 'PDH Goods or Services' means goods or services which, for the purposes of the Australian Consumer Law, are of a kind ordinarily acquired for personal, domestic or household use or consumption; PPS Act means the Personal Property Securities Act 2009 (Cth); PPS Law means the PPS Act including, without limitation, any amendments made as a consequence of the PPS Act to any other legislation (which includes the Corporations Act); 'Public Authority' includes the Crown, any government and any governmental, semi-governmental, public, administrative, regulatory or judicial entity. It includes a Minister, a statutory corporation, a self regulatory organisation or supervisory authority established by statute and any stock or futures exchange; 'Rebate' means on any day the amount calculated by adding together the Residual Value and the Total Instalments (excluding GST and stamp duty) and deducting therefrom the Commencement Value and then multiplying the amount so obtained by the sum of all the whole numbers from the one to the number of complete months in the unexpired portion of the Term on that day (both inclusive) and dividing the product so obtained by the sum of all the whole numbers from one to the number which is the total number of complete months in the Term (both inclusive); 'Recoverable Amount' means on any day the amount as reasonably determined by Alphera Financial Services which is equal to the sum of: all Instalments and other moneys payable under this Agreement by the Lessee which have accrued due but are unpaid; the aggregate of the Residual Value and the Instalments not yet accrued due, less the Rebate; and GST and stamp duty payable on the aggregate of and ; or such lesser amount as Alphera Financial Services may in its absolute discretion determine; 'Residual Value' means the amount specified in item 5 of the Schedule; 'Schedule' means the Schedule in the Offer; Prestige Lease Standard Lease Terms and Conditions Page 2 of 20
Security Interest means: a mortgage, charge, pledge, lien, hypothecation, bill of sale, assignment, title retention arrangement, trust or power held as security, or other interest securing the payment of money or performance of any obligation of any person or any other agreement, notice or arrangement having a similar effect; a right, interest or an arrangement which has the effect of giving another person a preference, priority or advantage over creditors including any right of set-off; right that a person (other than the owner) has to remove something from land (known as a profit à prendre), easement, public right of way, restrictive or positive covenant, lease, or licence to use or occupy; third party right or interest or any right arising as a consequence of the enforcement of a judgment; or anything that is defined to be a security interest under a PPS Law; 'State' means the State or Territory named in item 6 of the Schedule; 'Term' means the period of time commencing on the Commencement Date and terminating on the Termination Date; 'Termination Date' means the last date for payment of an Instalment specified in item 4 of the Schedule hereto or such other date as is agreed in writing by Alphera Financial Services and the Lessee or the earlier date upon which the Lease terminates in accordance with the provisions of this Agreement; available to existing customers of Alphera Financial Services; and 'Total Instalments' means the total of the Instalments specified in item 4 of the Schedule. 1.2 Interpretation A reference in this document to any section or provision of the Corporations Act or to any regulation of the Corporations Regulations includes, if the relevant section, provision or regulation is: held to be invalid; or read down or given a restricted meaning so that its operation or application is substantially affected; by any court of competent jurisdiction, a reference to corresponding section or provision of or regulation under the appropriate Corporations Act. A reference in this document to an Act of Parliament or other form of legislation means the Act or legislation as in force at the relevant time and includes: (iii) any equivalent or corresponding Act of Parliament or other form of legislation in force in another State or Territory of Australia at the relevant time and, in the case of companies legislation, any other place or jurisdiction in which a company to which the reference applies is incorporated or deemed to be incorporated; all statutory instruments made under any such Act of Parliament or other form of legislation; and amendments consolidations or re-enactments of or substitutions for the Act of Parliament, other form of legislation, or statutory instrument referred to or deemed under this clause to be referred to. In this Agreement unless the context otherwise requires, words importing the singular or plural number are deemed to include the plural or singular number respectively and words importing any gender include the other genders and references to persons include references to corporations and vice versa. Headings of clauses in this Agreement have been inserted for guidance only and do not and shall not be deemed to form part of this Agreement. Prestige Lease Standard Lease Terms and Conditions Page 3 of 20
(f) Reference in this Agreement to Alphera Financial Services' consent or approval shall mean Alphera Financial Services' prior written consent or approval signed by an Officer of Alphera Financial Services. A reference in this Agreement to accession, chattel paper, commercial property, financing change statement, financing statement, inventory, personal property, proceeds and verification statement has the respective meaning given to that term under the PPS Act. 1.3 PPS Law inconsistency To the extent permitted by the PPS Law, Alphera Financial Services' rights, powers and remedies under this Agreement prevail to the extent they are inconsistent with the provisions of the PPS Law. 2 The Lease Alphera Financial Services shall lease the Goods to the Lessee and the Lessee shall hold the Goods as tenant for the Term upon and subject to the terms and conditions of this Agreement. The provisions of this clause shall not be affected or prejudiced by reason of any prepayments of moneys by the Lessee or the delivery of the Goods or any part thereof to the Lessee which pending execution aforesaid by Alphera Financial Services shall be deemed merely provisional but in the event of such provisional delivery the Lessee's obligations as to insurance, care and the use of the goods and otherwise (except as to the payment of Instalments) under this Agreement shall bind the Lessee from the time of the Lessee's execution of this Agreement and the Lessee shall be a tenant at will of the goods at a daily rent equal to one thirtieth of the First Instalment which in the event of the execution of this Agreement by Alphera Financial Services shall be applied by Alphera Financial Services in reduction of the Total Instalments payable under this Agreement. Any Act limiting, postponing, negativing, abridging or in any way affecting the rights, remedies and powers of Alphera Financial Services by, under or in pursuance of any Act or otherwise shall not except to the extent that it cannot be excluded apply to this Agreement or to the moneys payable hereunder and shall not otherwise affect, prejudice or abridge any other rights, remedies and powers of Alphera Financial Services. In the event that any right, power or privilege of Alphera Financial Services created hereunder shall at any time be exercisable only upon compliance with the provisions of any Act then any such right, power or privilege of Alphera Financial Services shall be exercisable upon due compliance with the provisions of such Act notwithstanding that the same shall be inconsistent with the provisions of this Agreement which (except only to the extent of such inconsistency) shall remain in full force and effect in all respects. Despite anything contained in this Agreement, this Agreement is not binding on Alphera Financial Services until Alphera Financial Services has singed the Offer by the way of acceptance; or given written notice that is signed by an authorised officer of Alphera Financial Services to the Lessee of the acceptance of the offer, whether the notice is received by the Lessee or not. 3 Security Interest in the Goods The Lessee acknowledges that Alphera Financial Services interest in the Goods provided for by the transaction contemplated by this Agreement: secures the payment of all money and the performance of all obligations owing or assumed by the Lessee under this Agreement; and is a Security Interest. The Security Interest provided for in clause 3: extends to all proceeds of the Goods; and is effective and attaches to the Goods: Prestige Lease Standard Lease Terms and Conditions Page 4 of 20
(A) when the Lessee signs the Offer; or (B) immediately after the Lessee acquires any right or interest in the Goods, if the Lessee has not acquired the Goods when the Lessee signs this Agreement. (f) (g) Alphera Financial Services may, at the Lessee s cost, take all steps as Alphera Financial Services considers advisable to register, amend or remove the registration of, protect, perfect or record its Security Interest in the Goods, or to better secure its position in respect of this Agreement under the PPS Law. Without affecting the priority of the Alphera Financial Services Security Interest in the Goods, the Lessee must take any action necessary to register, perfect, preserve and maintain continuous perfection of any Security Interest in the Goods which Alphera Financial Services may, at any time, hold or have the benefit of that is a Security Interest under the PPS Act. The Lessee must procure the removal or cessation of any registration in relation to any Security Interest that affects the priority of Alphera Financial Services interest in the Goods. The Lessee must immediately notify Alphera Financial Services if it becomes aware of any person taking steps to register, or registering, a financing statement in relation to the Goods. The Lessee confirms that the Goods: will be commercial property for the purposes of the PPS Law; and will not form part of the Lessee s inventory. 4 Instalments Subject as hereinafter provided, the Lessee shall pay to Alphera Financial Services the Instalments at the times and in the manner specified in item 4 of the Schedule. 5 Delivery The Lessee shall obtain delivery of the Goods at the Lessee's expense and, if requested by Alphera Financial Services, shall give to Alphera Financial Services written acknowledgement of delivery of the Goods. Alphera Financial Services shall not be liable in any respect nor shall this Agreement be in any way affected by any delay in or refusal of delivery of the Goods save and except for a delay in or refusal of delivery caused by the wilful and unreasonable refusal of Alphera Financial Services to pay the supplier for the Goods or permit the goods to be delivered. If Alphera Financial Services has executed this Agreement and the Lessee refuses to obtain or take delivery of the goods or to give Alphera Financial Services a written acknowledgment of delivery of the Goods when requested to do so, or fails to do so within seven days from the day on which delivery of the Goods becomes available, Alphera Financial Services may, by notice in writing to the Lessee, elect to treat this Agreement as repudiated by the Lessee and may terminate this Agreement and recover from the Lessee as liquidated damage its loss of profit on the transaction in addition to any expense, loss or damage Alphera Financial Services may incur by reason of such repudiation. 6 Further assurances The Lessee must, at the Lessee's expense, immediately do anything (including providing information, obtaining consents or waivers, or executing new documents, amendments to this Agreement or consents) which Alphera Financial Services considers necessary or desirable to: ensure that Alphera Financial Services Security Interest provided for by this Agreement: attaches to the Goods; Prestige Lease Standard Lease Terms and Conditions Page 5 of 20
(iii) is enforceable, perfected and otherwise effective; and has the priority required by Alphera Financial Services; (f) (g) (h) enable Alphera Financial Services to prepare and register (including renewal of registration) a financing statement or financing change statement, this Agreement or any notice of this Agreement, on any register of securities or any other register relevant to the Goods; if the Lessee is in default or Alphera Financial Services exercises its right of possession under this Agreement, enable Alphera Financial Services to evidence that it is in control and possession of the Goods for the purposes of the PPS Act; enable Alphera Financial Services to exercise any of its rights or powers in connection with its Security Interest in the Goods, and the proceeds of the Goods, or to perform any of its obligations under the PPS Law; ensure that this Agreement is not void, voidable or otherwise unenforceable; stamp, effect or complete the provisions of this Agreement; protect, perfect, record or better secure Alphera Financial Services position under this Agreement and its interest in the Goods and proceeds of the Goods in any relevant jurisdiction and in a manner not inconsistent with this Agreement with any additional terms reasonably required by Alphera Financial Services having regard to the nature of that part of the Goods or proceeds of the Goods and the type of additional encumbrance being created; or overcome any defect or adverse effect arising from the PPS Law. 7 Warranties The Lessee warrants, agrees and acknowledges that: (iii) the Lessee has relied solely on the Lessee's own skill and judgment in selecting the goods as suitable for the purpose of the Lessee's business and, if the Lessee either expressly or by implication has made known to Alphera Financial Services or to the person by whom any antecedent negotiations were conducted any particular purpose for which the Goods are required, the Lessee has not relied on nor would it have been reasonable for the Lessee to have relied on the skill or judgment of Alphera Financial Services when deciding whether the Goods were reasonably fit for that purpose; the Goods are to be used wholly or mainly for the purpose of a business carried on by the Lessee either alone or with any other person and the whole or the greater part of the amount specified as Total Instalments is or is reasonably expected to be a loss or outgoing necessarily incurred in carrying on the business; neither Alphera Financial Services nor any person having authority to act on its behalf has given or made any representations or promises regarding the Lessee's rights or position in respect of any law relating to taxation or regarding the disposal of the Goods at the expiration of the Term and Alphera Financial Services shall not be responsible for any representation, promise or statement made in relation to these or any other matters by any person who may have initiated, negotiated or introduced the transaction evidence hereby. The Lessee's obligation to pay the Instalments and otherwise to comply with the terms and conditions of this Agreement shall continue notwithstanding the occurrence of any defect in or total or partial breakdown of the goods or any damage thereto. The Lessee acknowledges that nothing herein contained shall confer on the Lessee any right or property or interest in or to the goods and the Lessee shall only be a bailee thereof. Prestige Lease Standard Lease Terms and Conditions Page 6 of 20
The Lessee warrants that it has never had any property or interest whatsoever in the Goods and the Lessee shall indemnify Alphera Financial Services against any loss it may suffer by reason of it transpiring that the Lessee has had any such property or interest. The Lessee represents and warrants that all credit and financial information concerning the Lessee supplied to Alphera Financial Services or to any agent, broker or dealer introducing the transaction evidence hereby is true and correct in all respects. 8 Maintenance The Lessee shall use the care of a cautious and prudent owner to prevent damage to the Goods or their loss and destruction and shall at the Lessee's expense both as to materials and labour place, keep and maintain the goods in good working order and repair so that they shall at all times during the Term be in first class condition for goods of the type that they are having regard to the condition in which they were delivered to the Lessee, fair wear and tear excepted, provided that the Lessee shall not have or be deemed to have any authority to pledge Alphera Financial Services' credit or create any lien upon the goods for repairs or otherwise and without limiting the generality of the foregoing the Lessee shall: (iii) (iv) (v) use, keep and service and permit the use, keeping and servicing of the Goods 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; arrange for inspection and servicing of the goods at the Lessee's expense at such periods as are recommended by the manufacturer; keep the goods in a suitable and safe place in such manner and with all facilities as specified or recommended by the manufacturer; use and permit the use of the Goods only in accordance with the normal usage of the Goods of the type that they are having regard to the general purpose for which they were designed and manufactured; and not use or permit the Goods to be used or operated in violation of the terms of this Agreement for any illegal purpose or in any manner or under any circumstances which would amount to a breach of any law or Act (whether such breach is committed by the Lessee or otherwise) or which in Alphera Financial Services' opinion would be likely to endanger the safety or condition of the Goods. The Lessee shall, if requested by Alphera Financial Services at any time during the Term, effect and keep effected at the Lessee's expense an agreement for the maintenance and servicing of the Goods with a qualified and competent person. Alphera Financial Services may serve upon the Lessee a notice in writing requiring the Lessee within a stipulated time to rectify a breach of the Lessee's covenants contained in clause 8 hereof. 9 Registration and insurance The Lessee shall at the Lessee's expense register the Goods and keep the Goods registered during the Term as required by any relevant Act in the name of the Lessee as if the Lessee were the owner. The Lessee shall at the Lessee's expense at all times during the Term effect and keep effected with an Insurer approved by Alphera Financial Services under a comprehensive policy not subject to being defeated or avoided or the reliability thereunder declined by reason of any non-disclosure, misrepresentation, breach of warranty or otherwise in the names of Alphera Financial Services and the Lessee for their respective rights and interests: insurance in respect of the Goods for the full insurable value thereof against any loss or damage of any kind whatsoever and howsoever caused to the Goods including but without limiting the Prestige Lease Standard Lease Terms and Conditions Page 7 of 20
generality of the foregoing all loss or damage by fire, flood, storm, tempest, lightning, explosion, theft, accident, malice and civil commotion; (iii) (iv) insurance for such amounts as Alphera Financial Services may reasonably require having regard to the nature of the proposed use of the goods against any loss, damage, or injury of any kind whatsoever and howsoever caused to any person or property arising out of the goods or their use under a policy covering all such risks including all claims by third parties; insurance against third party risks to the extent required by law; and insurance against any such other loss, damage, injury or risk which Alphera Financial Services may reasonably require in writing from time to time. (f) (g) (h) The Lessee shall pay all premiums payable and produce evidence of payment to Alphera Financial Services on or before the due date provided that Alphera Financial Services may in its discretion pay such premiums on the Lessee's behalf and if it does so the Lessee shall repay the amount of such premiums to Alphera Financial Services immediately on demand. Nothing herein contained nor any representation by Alphera Financial Services shall relieve the Lessee from its obligations to ensure that all premiums payable are paid on or before the due date. The Lessee shall immediately produce to Alphera Financial Services on demand all cover notes, insurance policies, receipts for premiums paid and details of any claims and payments made pursuant thereto. The Lessee shall prevent the goods from being at any time used, kept or otherwise situated in any manner or place which, and shall not do or permit or suffer anything to be done which might or could permit the Insurer under any insurance policy to decline a claim arising out of such event or events whether under any condition or exclusion contained in the insurance policy or otherwise. Alphera Financial Services shall be entitled to receive all moneys payable by the insurer under any insurance policy effected pursuant to this clause or by any other person in respect of damage to or loss of the goods and the Lessee hereby irrevocably appoints Alphera Financial Services to the Lessee's attorney to execute all documents and do all things and acts (including the commencement and prosecution of any legal action) necessary to recover and compromise in the Lessee's name any claim for damage, loss or injury under any insurance policy or otherwise and to give effectual receipts and releases for the same. The Lessee irrevocably authorises Alphera Financial Services to appropriate any insurance or other moneys received by Alphera Financial Services in respect of any defect in, loss or destruction of or damage to the goods in Alphera Financial Services' absolute discretion towards the restoration or repair of the goods or towards any moneys due and payable hereunder by the Lessee to Alphera Financial Services. The Lessee shall notify Alphera Financial Services in writing immediately upon the occurrence of any event which could or might give rise to a claim under any insurance policy effected by the Lessee. 10 Indemnities The Lessee indemnifies and shall keep Alphera Financial Services indemnified in respect of any loss suffered by Alphera Financial Services in connection with, or damage to, the Goods where such loss or damage is caused by the acts or omissions of the Lessee or while the Goods are under the possession or control of the Lessee provided that Alphera Financial Services shall give the Lessee credit for any insurance moneys and salvage received by Alphera Financial Services if and when received. The Lessee indemnifies and shall keep Alphera Financial Services indemnified to the fullest extent permitted by law for and against all actions, proceedings, claims, costs and demands by any person whatsoever whether in respect of damage to property, injury to persons or otherwise arising directly or indirectly: Prestige Lease Standard Lease Terms and Conditions Page 8 of 20
out of a breakdown of or defect in or any accident to or in respect of the Goods caused by the acts or omissions of the Lessee or while the Goods are under the possession or control of the Lessee; or from or incidental to the use, operation, possession, maintenance or storage of the Goods by the Lessee or any other person while the Goods are under the possession or control of the Lessee. If, in respect of the goods, the Lessee has made or makes any representation or warranty to Alphera Financial Services which is relevant to the operation or applicability of the Income Tax Assessment Acts 1936 and 1997 and such representation or warranty proves to be incorrect, then the Lessee shall indemnify and keep Alphera Financial Services indemnified against all losses and expenses (including, without limiting the generality of the foregoing, all losses and expenses arising out of the inability of Alphera Financial Services to obtain deductions or other benefits to which, if such representation or warranty had been correct, it would have been entitled under such Act) suffered by Alphera Financial Services as a reasonably foreseeable consequence of such a representation or warranty being incorrect. The Lessee indemnifies and shall keep Alphera Financial Services indemnified in all circumstances in respect of any capital loss which Alphera Financial Services may suffer as a result of entering into this Agreement. The measure of Alphera Financial Services' capital loss at any time, except as otherwise provided in this Agreement, shall equal the amount by which the Depreciated Value of the Goods exceeds the amount of the Realisable Value of the goods, plus GST. In this clause: 'Depreciated Value' means the portion of the Commencement Value which has not been recouped by Alphera Financial Services through the operation of this Agreement on the Termination Date; and 'Realisable Value' means where the Goods have been sold by Alphera Financial Services, the Net Sale Proceeds of the Goods as stated in clause 16 hereof and otherwise the fair market value of the Goods determined by a valuer in accordance with the provisions of clause 16 hereof. 11 Control of Goods Nothing in this clause shall entitle Alphera Financial Services to recover under this clause more than the Recoverable Amount. The Lessee shall keep the goods in the Lessee's possession and control. The Lessee must not create or permit to exist a Security Interest, lease or licence over the Goods or cause or permit any person to attempt or purport to create a Security Interest, lease or licence over, or to register a financing statement in relation to, any of the Goods other than in favour of Alphera Financial Services unless the Security Interest is created or the financing statement is registered with Alphera Financial Services' prior written consent. The Lessee shall allow Alphera Financial Services at all reasonable times to have access to the Goods and Alphera Financial Services is authorised to enter upon any premises where Alphera Financial Services believes the Goods are located for the purpose of inspecting or testing the Goods, affixing thereto any identifying name, number, mark or plate indicating, inter alia, that the goods are the property of Alphera Financial Services, protecting Alphera Financial Services' rights therein or exercising Alphera Financial Services' rights to take possession thereof. The Lessee must not, without the prior written consent of Alphera Financial Services: substantially or materially alter the Goods; fit any accessories or equipment which are a departure from standard equipment; Prestige Lease Standard Lease Terms and Conditions Page 9 of 20
(iii) (iv) (v) allow any personal property that is subject to a Security Interest in favour of any person other than Alphera Financial Services to become an accession to the Goods; alter, obliterate or conceal or permit or suffer to be altered, obliterated or concealed any identifying name, number, make or place of whatever nature appearing on or affixed to the Goods; or affix any signs or other insignias on the Goods, and must remove and pay any costs of restoration required as a result of such fitting or alteration or affixing of signs or other insignias. (f) (g) The Lessee shall, in addition to any obligation on the Lessee's part herein contained, comply with all requirements at law and under any agreement relating to the goods, their possession and the use of the premises upon which the Goods are situated and shall pay all duties imposed by any Act or other law, or under any agreement in respect thereof and without prejudice to the generality of the foregoing all rents, loan repayments, rates, charges, taxes and impositions and shall produce receipts for such payments to Alphera Financial Services on demand and shall make all payments necessary to protect the Goods from distress, execution or seizure and the Lessee indemnifies and shall keep Alphera Financial Services indemnified against all losses, costs, charges, damages and expenses incurred by Alphera Financial Services by reason or in consequence of the Lessee's failure or neglect to comply with the provisions hereof. The Lessee shall use, operate and possess the Goods at the Lessee's risk and, subject at all times to clause 23 and otherwise to the extent permitted by law, Alphera Financial Services shall not be liable to the Lessee for or in respect of any loss or damage whatsoever and whenever cause to the Lessee whether by way of personal injury, delay, financial loss or otherwise arising directly or indirectly from or incidental to a breakdown of or defect in or any accident to the Goods (whether occasioned by the negligence of Alphera Financial Services or otherwise) During the Term: the Lessee shall not conceal the Goods or attach, affix or secure the Goods to any land or premises unless their use so requires and then only with the prior written consent of Alphera Financial Services which consent Alphera Financial Services may refuse or give upon such conditions as Alphera Financial Services in its absolute discretion thinks fit; and if the Lessee proposes to give or create any mortgage, charge or encumbrance over the land and premises or over the Lessee's interest in the land and premises whereon the Goods or any part thereof shall for the time being be situated, the Lessee shall not less than a Month before giving or creating such mortgage, charge or encumbrance give notice to Alphera Financial Services of such proposal and shall procure such mortgage, charge or encumbrance to be made subject to the rights of Alphera Financial Services under this Agreement in respect of the Goods including the right of removal notwithstanding that the Goods or any part thereof may be or appear to be affixed to the land or premises and shall procure from the mortgagee, chargee or encumbrancee an acknowledgement in writing addressed to Alphera Financial Services acknowledging that the Goods are not and shall not be subject to the mortgage, charge or encumbrance and will not be claimed by the mortgagee, chargee or encumbrancee and that Alphera Financial Services may at any time enter on the land and premises and remove the Goods. (h) The Lessee must immediately upon request from Alphera Financial Services procure from any owner or mortgagee, chargee or encumbrancee of any land and premises (other than the Lessee) where the Goods or any part thereof shall for the time being situated executing an acknowledgement in the form referred to in clause 11(g) hereof or to like effect. The Lessee shall keep the Goods housed generally at the address specified in item 2 of the Schedule and shall not remove them from such place except for the purpose of the Lessee's business within the State and shall not remove or permit the Goods to be removed outside the State without Alphera Financial Services' prior written consent which shall not be unreasonably withheld. The Goods must not be moved outside of Australia. Prestige Lease Standard Lease Terms and Conditions Page 10 of 20
(j) (k) Subject to clause 11 hereof, all tyres, spare parts and accessories now or hereafter supplied with or attached to the Goods shall for the purposes of the PPS Act be or become an accession. At the expiration of the Term or upon its sooner termination the Lessee shall deliver up the goods together with all accessories to Alphera Financial Services at Alphera Financial Services' address appearing herein or at such other place as Alphera Financial Services may reasonably direct in writing in a first class working order and repair, reasonable wear and tear only excepted, together with all keys, any necessary duly executed transfer of registration and insurance and any other certificate relating to the Goods and in accordance with the provisions contained herein. If the Lessee fails to return or deliver up the Goods, Alphera Financial Services may forthwith and without notice retake possession of the Goods. (l) If the Lessee fails to deliver up the Goods to Alphera Financial Services on termination of the Term, the Lessee shall pay to Alphera Financial Services by way of liquidated damages for detention a daily sum equal to one thirtieth of the last Instalment payable hereunder. 12 The Lessee's covenants The Lessee shall repay on demand in writing being made by Alphera Financial Services any moneys which Alphera Financial Services may in its discretion elect to pay to make good any failure by the Lessee to comply with any obligation hereunder express or implied or any other obligation incurred by the Lessee in respect of the goods and any other expense or cost contingent or otherwise which Alphera Financial Services may incur in the enforcement or protection of Alphera Financial Services' rights hereunder or in relation to the goods including, without limiting the generality of the foregoing, all moneys paid by Alphera Financial Services in releasing any Security Interest, mortgage, lien, charge, pledge or other encumbrance claimed (whether justifiable or not) over the goods or part thereof and in severing, dismantling and removing the Goods from any premises, retaking or attempting to retake possession of the goods and storing, repairing or renovating the goods. The Lessee shall (save to the extent prohibited by law, if any) bear and pay to Alphera Financial Services the full amount of all stamp duty and other duties imposed by any law at any time and from time to time in respect of this Agreement or arising herefrom or from the receipt of moneys or out of the use of the Goods in pursuance of this Agreement or in respect of any memorandum, return or other document which Alphera Financial Services is or becomes liable to prepare or make in relation hereto or which Alphera Financial Services may prepare, make or enter into for the purpose of protecting Alphera Financial Services' interests in the Goods or enforcing Alphera Financial Services' rights in respect thereof and except as otherwise expressly agreed or otherwise determined by Alphera Financial Services any payment by the Lessee shall be deemed to be appropriated firstly in payment of stamp duty or other duties. The Lessee agrees that if the Instalments include an amount on account of stamp duty and or other duties, the Lessee shall pay to Alphera Financial Services such Instalments in respect of both rent payable hereunder and such stamp duty and or other duties but in the event that the Instalments do not represent the appropriate stamp duty and or other duties to be charged or chargeable under this Agreement the Lessee agrees that the Lessee's obligations under the preceding sub-clause 12 shall be paramount. The Lessee shall make all payments without deduction and in cleared funds to Alphera Financial Services at its office the address which appears herein, or at such other place as Alphera Financial Services may direct in writing, and any payments otherwise made and any payments sent by post shall be at the Licensee's risk until received at such office or place and payment shall only be deemed effected to the event of cash actually received. The Lessee shall, if specified in the Offer, sign an order upon the Lessee's bankers directing payment of the Instalments by debiting the Lessee's bank account therewith and crediting the Services. The Lessee shall pay interest at the Default Rate on any moneys payable under this Agreement and under any judgement obtained by Alphera Financial Services against the Lessee in respect of moneys payable under this Agreement which may from time to time be overdue such interest to be computed from the date upon which such moneys become payable to the date of actual payment. Prestige Lease Standard Lease Terms and Conditions Page 11 of 20
(f) (g) (h) (j) (k) (l) (m) The Lessee irrevocably authorises and appoints Alphera Financial Services (and any person appointed by Alphera Financial Services for such purpose) the Lessee's attorney to use the Lessee's name and to act on the Lessee's behalf in exercising any rights or instituting or carrying on or enforcing, continuing, compromising or completing any legal proceedings which Alphera Financial Services thinks fit, reasonable and necessary to protect Alphera Financial Services' title in the goods or any of its rights under this Agreement. The Lessee must whenever requested by Alphera Financial Services, take or defend any legal proceedings as Alphera Financial Services may consider reasonable and necessary for the protection or recovery of the Goods. In addition to Alphera Financial Services' rights, powers and remedies conferred by Act or by law or equity, Alphera Financial Services may charge the Lessee a reasonable administration fee of an amount determined by Alphera Financial Services for each follow up, recovery, collection or enforcement action taken by Alphera Financial Services in relation to any moneys overdue by the Lessee under this Agreement. No waiver or indulgence by Alphera Financial Services of any breach by the Lessee shall be deemed a waiver or indulgence of any continuing or recurring breach and the rights of Alphera Financial Services shall not be affected in any way by any time or indulgence that Alphera Financial Services may grant to the Lessee. The Lessee shall comply with all requirements at law relating to the Goods and their registration, licensing, possession or use or in any other manner relating to them and shall pay as if the Lessee were the owner and operator of the goods all fees, charges and taxes payable in respect of the use, keeping or operation of the Goods. Whether under or pursuant to this Agreement or anything done hereunder, the date on or by which any act, matter or thing is required to be done is a day other than a Business Day such act, matter or thing shall be done on the immediately preceding Business Day or the immediately succeeding Business Day, whichever is the closest, and if both such Business Days are equally close the immediately preceding Business Day shall take precedence. The Lessee shall pay an account keeping fee as specified in item 7 of the Schedule during the Term. The Lessee must immediately upon request by Alphera Financial Services, deposit with Alphera Financial Services any documents of title (including chattel papers) relating to the Goods or other documents which evidence the Lessee s rights in the Goods. 13 Change of particulars 13.1 Change of address The Lessee must, prior to any changes of address, notify Alphera Financial Services in writing of the proposed new address. 13.2 Change of name or acquisition of an Australian Business Number or Australian Registered Scheme Number The Lessee must notify Alphera Financial Services in writing at least 7 days prior to any of the following events: if the Lessee is an individual, a change of its name; or if the Lessee is a trustee, the making of an application for an Australian Business Number or Australian Registered Scheme Number, and will provide to Alphera Financial Services, immediately upon it becoming available, the Lessee s new name, Australian Business Number or Australian Registered Scheme Number, as the case may be. Prestige Lease Standard Lease Terms and Conditions Page 12 of 20
14 Destruction of Goods In the event of any total or substantial loss or destruction of the Goods, Alphera Financial Services may be notice in writing to the Lessee terminate the Lease and upon payment to Alphera Financial Services of the measure of its loss pursuant to the Lessee's indemnity under clause 10 of this Agreement of the Lessee shall cease to be liable for the Instalments that have not yet fallen due for payment. The measure of Alphera Financial Services' loss shall be the Recoverable Amount at the date of such notice of termination less any amount actually received by Alphera Financial Services in respect of salvage and insurance. The Lessee shall within 7 days of such notice of termination pay to Alphera Financial Services the measure of Alphera Financial Services' loss. 15 Events of termination If: the Lessee defaults in payment of any Instalment due under this Agreement and does not pay the Instalment within [7] days of a notice from Alphera Financial Services notifying it that payment of the Instalment is outstanding; when the Lessee is a corporation: (A) (B) a Controller or anyone else (whether or not as agent for the Lessee) is in possession, or has control of the Lessee's property for the purpose of enforcing a charge; or a Controller is appointed to the Lessee or to the assets and undertaking of the Lessee or any part of them under the Corporations Law; (iii) when the Lessee is an individual: (A) (B) the Lessee dies or is or becomes incapable of managing his or her own affairs; or a petition is presented for the sequestration of the estate of the Lessee or a receiver or trustee in bankruptcy is appointed to any part of the property or estate of the Lessee; (iv) the Lessee fails to observe or perform any condition, covenant or other obligation on its part contained in or implied by this Agreement and: (A) (B) in the case of a default which is capable of being remedied, the Lessee has not caused the default to be remedied within the period (being not less than 7 days) specified in a notice in writing given to the Lessee by Alphera Financial Services requiring that such default be remedied; and in the case of default which is not capable of being remedied, the default is material. (v) (vi) (vii) (viii) (ix) the Lessee returns the Goods to Alphera Financial Services prior to the expiration of the Term; there is a breach of any provision hereof which in the opinion of Alphera Financial Services might prejudice the safety or condition of the Goods or Alphera Financial Services' ability to recover the same; Alphera Financial Services becomes entitled to retake possession of any goods from the Lessee in respect of any other leasing transactions; any statement, representation or warranty made to Alphera Financial Services by or on behalf of the Lessee or made in any certificate, report or opinion given to Alphera Financial Services and which induced Alphera Financial Services to enter into this Lease, proves to be incorrect or misleading in any respect which Alphera Financial Services considers material; any execution or distress is issued or levied against the Lessee in respect of an amount which Alphera Financial Services reasonably deems to be material and such execution or distress is not stayed or satisfied within 14 days; Prestige Lease Standard Lease Terms and Conditions Page 13 of 20
(x) (xi) (xii) (xiii) the Lessee ceases or threatens to cease to carry on business or sells, assigns or transfers or purports to sell, assign or transfer the whole or any part of its undertaking or assets otherwise than in the ordinary course of business; the Lessee being a corporation, an application or order is made or a resolution is passed for the winding up of the Lessee or a ground arises on which a court may orders its winding up or upon which a meeting may be called for the purpose of placing the Lessee under official management or an inspector be appointed to investigate its affairs or it proposes to or enters into any arrangement, reconstruction or composition with its creditors; any other event occurs which constitutes or evidences on the part of the Lessee a repudiation of or refusal to be bound by this Agreement; or a person other than Alphera Financial Services claims a Security Interest in the Goods, whether or not ranking in priority to Alphera Financial Services interest in the Goods; then and in any such event Alphera Financial Services shall be entitled to forthwith terminate the Lease by notice in writing and retake possession of the Goods provided however that Alphera Financial Services may from time to time and to such extent and on such conditions as Alphera Financial Services thinks fit elect to waive its right under this clause, but no such waiver shall effect is rights under this clause in respect of any further continuing or recurring breach or event. If Alphera Financial Services terminates the Lease pursuant to clause 15 hereof, the Lessee shall forthwith (without need for any demand or notice and without prejudice to any other right or remedy of Alphera Financial Services contained herein or implied by the Lease): pay to Alphera Financial Services as and by way of liquidated and ascertained damages the Recoverable Amount applicable at the Termination Date; deliver up the goods to Alphera Financial Services in accordance with the provisions of clause 11 hereof. Should the provisions of clause 15 or any part thereof insofar as it relates to the Recoverable Amount be for any reason void, voidable, prohibited or unenforceable, then Alphera Financial Services shall be entitled to the maximum allowable damages in respect of the loss arising from or incidental to the termination of a breach of this Agreement. 16 Disposal of Goods Residual Upon the Lessee returning the Goods to Alphera Financial Services pursuant to the terms of this Agreement or in the event of Alphera Financial Services having retaken possession of the Goods, pursuant to the terms of this Agreement Alphera Financial Services shall dispose of the Goods as soon as reasonably practicable by private or public sale (including auction or closed tender) or by lease. If Alphera Financial Services is successful in selling the Goods Alphera Financial Services shall apply the Net Sale Proceeds towards moneys payable by the Lessee pursuant to clauses 10 and 15 hereof and shall pay to the Lessee the amount of the Net Sale Proceeds which exceeds the amount payable by the Lessee pursuant to clause 10 and 15. For the purpose of this clause 16, the expression "Net Sale Proceeds" means the gross proceeds received by Alphera Financial Services in respect of the Goods less all reasonable expenses incurred in or about the repossession, repairing, reinstating, insuring, storage, sale and delivery of the Goods and any GST for which Alphera Financial Services is or will become liable in respect of the disposal of the Goods. If such costs and expenses exceed the gross proceeds of sale, the Lessee shall reimburse such excess to Alphera Financial Services on demand. In the event that Alphera Financial Services is not able to effect a sale of the Goods within 3 months of their return or Alphera Financial Services' retaking possession of them, Alphera Financial Services may obtain a valuation of the Goods by an independent person approved by Alphera Financial Services in good faith as being a person competent to value the Goods, and the provisions of clauses 16 and Prestige Lease Standard Lease Terms and Conditions Page 14 of 20