TIMBER SUPPLY AGREEMENT THIS AGREEMENT is made on the day of 2003 BETWEEN TIMBERMANS GROUP PTY LIMITED (A.C.N. 100 845 476) Suite 4, 95 Salmon Street, Port Melbourne, Victoria, 3207, referred to as "Timbermans Group" AND INTEGRATED FOREST PRODUCTS PTY LIMITED (A.C.N. 083 521 966) TRALEE STREET, HUME, AUSTRALIAN CAPITAL TERRITORY trading as `IFP' and referred to as the "Company." 1. DEFINITIONS AND INTERPRETATIONS: 1.1 Definitions: In this Agreement unless a contrary intention appears: `Act' means the Forestry Act 1916 (NSW; `Additional Resource' means Timber that Timbermans Group proposes to make available for sale from the Area of Supply that are surplus to Timbermans Group' commitments (such commitments to include the Annual Supply); `Additional Supplies' means that part of Additional Resource which is to be made available to the Company; `Agreement' means this agreement; `Annual Delivery Plan' means the plan, prepared by Timbermans Group in accordance with clause 9, for the supply of Timber during the Year to which the plan applies; `Annual Supply' for a Year means the total of the Base Quantity and the Marginal Quantity for that Year; `Approvals' means all planning and other governmental regulatory approvals (including those under the Environmental Planning and Assessment Act 1979) required to construct and operate the Mill; `Area of Supply' means the Crown timber-lands within the Bombala Management Area more particularly identified on the map attached as Schedule 2; `Base Quantity' for a Year means the Base Quantity specified in clause 6.1 for that Year as that quantity may be amended in accordance with clause 6.2; `Business Days' means the days Monday to Friday inclusive, but excluding Public Holidays and days which are rostered days off at the Mill; `Change in Control' means change in the control of more than 50% of the shares with the right to vote in general meetings of the Company; `Code of Procedure' means the Code of Procedure referred to in clause 22 as amended from time to time in accordance with this Agreement; `Commencement Date' means the date upon which the Relevant Provisions take effect in accordance with clause 3; `Company' includes all employees, servants and agents of the Company; `Contract Harvesting' includes the felling, extraction, sorting, processing, grading, loading, hauling and delivery of Timber to the Mill and ancillary works including roading, tracking, log dump construction and site rehabilitation by Contractors engaged by Timbermans Group or it's supply agents; `Contract Harvesting Agreement' means an agreement in writing between Timbermans Group or its supply agents and a Contractor providing for the Contractor to carry out Contract Harvesting or any part thereof; `Contractor' means a person under contract with Timbermans Group to conduct Contract Harvesting operations and includes employees and agents of the Contractor; `Cost Item' - see Schedule 4; `Delivered Price' means the price payable by the Company per tonne of Timber delivered to the Company under this Agreement calculated in accordance with clauses 15 and 16; `Delivered Price Review Mechanism' means a mechanism for the annual review of Delivered Prices set out in Schedule 4 as amended or replaced from time to time in accordance with this Agreement; `Force Majeure' means an event (other than the payment of money or failure to obtain financial accommodation) arising from an act of God, industrial dispute, act or omission of government, war, sabotage, riot, civil disobedience, epidemic, disease, flood, fire, explosion, failure of power supply, accident, natural disaster, calamity, unavailability of essential inputs to the Mill or unlawful act by other persons, or any similar cause which prevents a party from performing its obligations (in whole or in part) under this Agreement, or an industry wide collapse in market demand for Products which causes the Company to close the Mill for a period of not less than 6 weeks or (at a time after the Company operates the Mill on double shift) to operate the Mill on a single shift which processes less than 3,300 tonnes of Timber supplied under this Agreement through the Mill in each week during a 3 months period; `Half Year' means the period April to September inclusive in any calendar year and October to March inclusive in any Year; `Indicator' - see Schedule 4; `Indicator rates' - see Schedule 4; `Indicator weighting' - see Schedule 4; `Insolvency Event' means in respect of a party: (a) a receiver, manager, receiver and manager, trustee, administrator, controller or similar officer being appointed in respect of the party or any asset of the party; (b) a liquidator or provisional liquidator being appointed in respect of the party; (c) a moratorium of any debts of the party or an official assignment or a composition or an arrangement (formal or informal) with the party's creditors or any similar proceeding or arrangement by which the assets of the party are subjected conditionally or unconditionally to the control of the party's creditors being ordered, declared or agreed to; (d) the party becoming, or admitting in writing that it is, or being declared to be insolvent or unable to pay its debts; (e) any writ of execution, garnishee order or similar order, attachment, distress or other process in an amount exceeding $10,000,000 (or its equivalent in a foreign currency) being made, levied or issued against or in relation to any asset of the party (which is not stayed, withdrawn or satisfied within 14 days of when it is made, levied or issued); (f) the party suspending payments of its debts generally; or (g) the party being, or under legislation being presumed or taken to be, insolvent (other than as the result of a failure to pay a debt or claim the subject of a good faith dispute); `Marginal Quantity' for a Year means the quantity of Timber specified in clause 6 as the Marginal Quantity for that Year or such lesser quantity determined from time to time in accordance with that clause; `Mill' means the sawmill proposed to be located within the Shire of Bombala NSW capable of processing 320,000 tonnes of Timber into green sawn timber products in a 12 month period; `Monthly Delivery Schedule' means a schedule for the month to which it applies, specifying information described in clause 10; `Monthly Quantity' means the quantity specified in a Monthly Delivery Schedule as the quantity to be delivered in the month to which the Monthly Delivery Schedule applies; `Products' - see Schedule 4; `Relevant Provisions' means clauses 6 to 16, 20 to 30, and 33 to 40 inclusive; `Salvage' means the taking of such Timber that is wind thrown, damaged, pushed over or felled for forest management purposes other than timber harvesting; `Specifications' means the specifications for timber set out in Schedule 1; `Specified Capacity' for any Year means the capacity to process at least 40% of the sawn timber which can be derived from the Annual Supply for that Year, into one or more of the Products; `Term' means the term of this Agreement; `Timber' means timber which meets the Specifications; `Year' means a period of twelve (12) months commencing on 1 July. 1.2 Interpretation In this Agreement, unless the context requires otherwise: 1.2.1 a reference to the Act includes all amendments, regulations, rules, by-laws and proclamations under the Act; 1.2.2 words and phrases defined in the Act will have the same meanings attributed to those words and phrases in the Act unless the word or phrase is defined in this Agreement in which case the word or phrase will have the meaning attributed to it in this Agreement; 1.2.3 headings are for convenience only and do not affect the interpretation of the Agreement; 1.2.4 words importing the singular include the plural and vice versa; 1.2.5 words importing a gender include any gender; 1.2.6 a reference to a natural person includes a Company, partnership, joint venture, association, corporation or other body corporate and any governmental agency; 1.2.7 a reference to any thing includes a part of that thing; 1.2.8 a reference to a clause, party, annexure, exhibit or schedule is a reference to a clause of and a party, annexure, exhibit and schedule to this Agreement; 1.2.9 a reference to a document includes all amendments or supplements or replacements or notations of that document; 1.2.10 a reference to a party to a document includes that party's successors and permitted assigns; 1.2.11 no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of this Agreement or any part of it; 1.2.12 a reference to dollars or $ is a reference to the lawful currency of the Commonwealth of Australia. 1.2.13 a schedule that forms part of this agreement can be varied with mutual consent by both parties without varying any further condition or schedule of the contract. 1.2.14 a reference to 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 (whether of the same or any other legislative authority having jurisdiction); 2. SCOPE OF AGREEMENT 2.1 Subject to the terms and conditions set out in this Agreement: 2.1.1 Each Year Timbermans Group agrees to supply the Annual Supply to the Company from the Area of Supply; 2.1.2 The Company agrees to purchase the Annual Supply at the prices specified in clauses 15 and 16. 3. RELEVANT PROVISIONS SUBJECT TO CONDITIONS PRECEDENT 3.1 In this clause: 3.1.1 the performance criteria means: (a) Within twelve (12) weeks of the date of this Agreement, the Company demonstrating to the reasonable satisfaction of Timbermans Group that it has: (i) made significant progress toward securing the funds required to complete construction of the Mill; and (ii) engaged a suitable consultant or similar individual capable of undertaking and completing any environmental impact assessment process that may be required to obtain the Approvals. (b) Within six (6) months of the date of this Agreement, the Company demonstrating to the reasonable satisfaction of Timbermans Group that it has: (i) secured access to the funds required to complete construction of the Mill (ii) identified and secured access to the Mill site; (iii) identified the infrastructure requirements for the Mill. Specifically this must include information concerning road access to the Mill site, the availability of sufficient water and power to the Mill site to operate the Mill and the provision of other site services to the Mill site including sewer and effluent disposal and telecommunications. (c) Within nine (9) months of the date of this Agreement, the Company: (i) providing Timbermans Group with the Mill design and (ii) demonstrating to the reasonable satisfaction of Timbermans Group that it has entered a Heads-of-Agreement or similar written agreement with the New South Wales Government and/or relevant Local Council defining the role of Government and/or Local Government in the provision of site services. (d) Within twelve (12) months of the date of this Agreement, the Company demonstrating to Timbermans Group' reasonable satisfaction that it has engaged the builders necessary to construct Mill. (e) Within fifteen (15) months of the date of this Agreement, the Company demonstrating to the reasonable satisfaction of Timbermans Group that it has obtained the Approvals or will obtain the Approvals within a further 3 months. (f) Within eighteen (18) months of the date of this Agreement, the Company demonstrating to the reasonable satisfaction of Timbermans Group that: (i) earthworks required to construct the Mill have commenced; and (ii) the Approvals have been obtained (if they were not obtained within 15 months of the date of this Agreement). (g) Within twenty-one months (21) months of the date of this Agreement, the Company demonstrating to the reasonable satisfaction of Timbermans Group that earthworks required to construct the Mill are completed. (h) Within twenty four (24) months of the date of this Agreement, the Company demonstrating to Timbermans Group' reasonable satisfaction that major components of the Mill have been constructed to a stage necessary to ensure the Mill will be constructed before the expiration of thirty six months (36) months from the date of this Agreement; and (i) Within thirty six months (36) months of the date of this Agreement, the Company has: (i) constructed the Mill to the stage where it capable of processing 80,000 tonnes of Timber into sawn timber per annum; (ii) a proprietary interest in the constructed Mill; and (iii) certified the occurrence of the matters set out in clause 3.1.1(l) (i) and (ii) in writing to Timbermans Group. (j) Within 28 days of a request in writing from Timbermans Group, the Company demonstrating to Timbermans Group' reasonable satisfaction that it continues to have secured access to the funds required to complete construction of the Mill provided that Timbermans Group may not make such a request before the expiration of 9 months from the date of this Agreement and may not make any subsequent request within 12 weeks of an earlier request. 3.1.2 a reference to the Company having a proprietary interest in the Mill means the Company or its wholly owned subsidiary either: (a) owns the Mill; or (b) has more than 50 percent of the shares with the right to vote in general meeting of the corporation which owns the Mill. 3.1.3 For the purposes of clauses 3.1.1(c)(i), (e)(i), and (j) (and without limiting the matters required to demonstrate to Timbermans Group reasonable satisfaction in accordance with those clauses) in demonstrating to Timbermans Group that the Company has secured access to the relevant funds the Company must establish to Timbermans Group reasonable satisfaction that the Company has obtained all financial accommodations and entered into all financial arrangements necessary to ensure the Company will have access to the funds when they will be required to be applied in the construction of the Mill. Such a demonstration may at the request of Timbermans Group involve any relevant financing organisation verifying the availability of relevant funds and the conditions attaching to the relevant financial accommodation. 3.2 The Relevant Provisions will only take effect when all the performance criteria have been completed. 3.3 This Agreement will terminate if any of the performance criteria identified in clause 3.1.1(a) or (g) have not been completed within the time for completion. 3.4 Subject to clause 3.3 if: 3.4.1 the Company fails to comply with any of the performance criteria; or 3.4.2 any of the performance criteria have not been completed within the timeframe specified for its completion; Timbermans Group may treat the failure or non completion as a material breach of this Agreement for the purposes of clause 31.1. 3.5 The Company must each March, June, September and December prior to the Commencement Date, if requested by Timbermans Group, make available its senior officers for meetings with Timbermans Group to discuss and provide a report on its progress in complying with the performance criteria. The report may at Timbermans Group option be verbal or in writing or both. 4. COMMENCEMENT AND DURATION OF AGREEMENT This Agreement will take effect from the date of this Agreement and operate until the expiration of twenty (20) years from the Commencement Date unless extended or sooner terminated in accordance with this Agreement. 5.3 If: 5.3.1 by reason of default on the part of Timbermans Group no Timber is supplied to the Company under this Agreement; or 5.3.2 this Agreement is terminated by Timbermans Group pursuant to clauses 3.4 and 31.1 and the Company's was prevented by Force Majeure from: (a) complying with the performance criteria the non compliance of which Timbermans Group treated as the material breach for the purposes of the termination under clause 31.1; or (b) completing performance criteria within the timeframe specified for its completion the non completion of which Timbermans Group treated as the material breach for the purposes of the termination under clause 31.1; and (c) the Force Majeure was not caused by any unlawful act or omission on the part of the Company; (d) the Company had taken all reasonable or practicable precautions to prevent the Force Majeure; and (e) the Company made all reasonable efforts to contain the effect of the Force Majeure; and (f) the Company informed Timbermans Group of the existence of the Force Majeure prior to Timbermans Group terminating the Agreement; or 5.3.3 prior the completion of the Mill a Force Majeure event occurs which would prevent Timbermans Group from substantially complying with its obligations under this Agreement for a period in excess of 12 months at any time during the Term if the Mill was completed in accordance with this Agreement; then Timbermans Group must refund any Premium paid on written demand by the Company. 6. BASE QUANTITY 6.1 Subject to clause 6.2 the Base Quantity for a Year means: 6.1.1 for the remainder of the Year in which the Commencement Date falls (`Period A'), the Base Quantity will be at the rate of 6,700 tonnes per month for each full calendar month in Period A; 6.1.2 for the first Year following Period A, the Base Quantity will be 80,000 tonnes per annum; 6.1.3 for second Year following Period A, the Base Quantity will be 145,000 tonnes per annum; and 6.1.4 for each Year of the Term thereafter the Base Quantity will be 240,000 tonnes per annum 6.2 If for reasons other than Force Majeure or default by Timbermans Group, the Company takes less than the Base Quantity in any 2 consecutive Years, Timbermans Group may by written notice to the Company reduce the Base Quantity to a quantity that is not less than the Yearly average of the quantity of Timber taken by the Company in those two Years. 7. ADDITIONAL SUPPLIES 7.1 Timbermans Group must notify the Company of any Additional Resource and ensure the Company has an opportunity to participate on an equitable basis in the process determined by Timbermans Group to allocate the Additional Resource. Additional Supplies will be supplied at a price and on terms to be agreed between the parties. 8. MARGINAL QUANTITY 8.1 Until the expiration of the first three (3) full Years after the Commencement Date the Marginal Quantity is zero (0) tonnes per Year. 8.2 Subject to clauses 8.1 and 8.3 the Marginal Quantity is 80,000 tonnes of Timber per Year. 8.3 For each Year of the 5 Year period after a Review Date the Marginal Quantity shall be the lesser of: 8.3.1 80,000 tonnes; or 8.3.2 the annual average quantity of Timber taken by the Company in excess of the Base Quantity in each of the 5 Years previous to the Review Date. 8.4 For the purposes of this clause 8: 8.4.1 Review Dates means 1 July of Year 10 and 1 July of Year 15 where: Year 10 means the tenth full Year after the Year of the Commencement Date; and Year 15 means the fifteenth full Year after the Year of the Commencement Date; 8.4.2 The Company will be deemed to have taken Timber which it failed to take solely by reason of Timbermans Group' failure to supply it. 8.5 Timbermans Group must advise the Company in writing within 2 months after a Review Date of its calculation of any amended Marginal Quantity it proposes to implement for the purposes of this Agreement. 8.6 Subject always to: 8.6.1 Timbermans Group not having allocated the forfeited Timber to another purpose; 8.6.2 the forfeited Timber being in Timbermans Group' opinion otherwise available; and 8.6.3 the Company demonstrating to Timbermans Group' satisfaction that it will take the reinstated Marginal Quantity for the balance of the Term; Timbermans Group must give reasonable consideration to a request by the Company for the reinstatement of the Marginal Quantity reduced in accordance with clause 8.3. 9. SHORTFALL MANAGEMENT 9.1 The Company must advise Timbermans Group in writing of any intention to take less than the Annual Supply in any Year (specifying the quantity it proposes to take) as soon as practicable and in any event prior to that Year to allow it to be incorporated into the Annual Delivery Plan for that Year. 9.2 If the Company varies its intention advised in accordance with clause 9.1 the Company must give written notice to Timbermans Group of the variation as soon as practicable and in any event no later than 31 March of the Year to which the notice applies. 9.3 If, for any reason other than the default of Timbermans Group, the Company takes less than the Base Quantity in any Year, the Company will pay to Timbermans Group an amount equivalent to 80% of the Delivered Prices payable on the quantity of Timber being the difference between the Base Quantity and the Timber taken by the Company in that Year. The Delivered Price payable per tonne on that difference will be the average Delivered Price paid by the Company in that Year calculated by dividing the total amount paid or payable for the Timber taken by the quantity taken by the Company in that Year. 9.4 If, in the Year following a Year in which the Company took less than the Base Quantity (`the following Year'), the Company takes more than the Base Quantity (`excess Timber'), the amount payable for the excess Timber in the following Year will be reduced by up to four-fifths of the amount paid under clause 9.3. 9.5 The parties acknowledge that the Company's obligation to pay one-fifth of the liquidated damages under clause 9.3 which may not be reimbursed in accordance with clause 9.4 has been inserted in this Agreement to offset a reciprocal liability Timbermans Group may have under Contract Harvesting Agreements. Timbermans Group will use reasonable endeavours to limit its said reciprocal liability under the relevant Contract Harvesting Agreements as a result of the Company's failure to take Timber under this Agreement. Despite clause 9.3 the amount of the Company's liability in respect of the one-fifth of the liquidated damages may not exceed the reciprocal liability Timbermans Group has under the relevant Contract Harvesting Agreements for the same relevant Year. If the Company makes payment in accordance with clause 9.3 Timbermans Group must as soon as practicable ascertain whether it has any such reciprocal liability and within 30 days of so ascertaining: 9.5.1 refund to the Company the difference if any between one-fifth of the amount paid under clause 9.3 and the actual reciprocal liability Timbermans Group has under the relevant Contract Harvesting Agreements for the same relevant Year; and 9.5.2 provide the Company with evidence of its reciprocal liability. 9.6. Any sum payable by the Company under clause 9.3: 9.6.1 must be paid before 31 August in the Year following the Year in which the liability arose; 9.6.2 is payable as pre-estimated and liquidated damages and not as a penalty. 9.7 If for reasons other than Force Majeure or default on the part of Timbermans Group, the Company fails to purchase Timber of a quantity equal to or greater than: 9.7.1 60% of the Annual Supply for 2 consecutive Years; or 9.7.2 50% of the Annual Supply in any Year, Timbermans Group: 9.7.3 must enter into discussions with the Company for a period of not less than 45 days to determine the reasons for the failure and, if appropriate, any measures that may be taken to prevent a repeat occurrence; and 9.7.4 may, at the conclusion of the discussion period, if acting reasonably it forms the view that the Company is unable or unlikely to substantially perform their obligations under this Agreement, terminate this Agreement. 10. METHOD OF SUPPLY 10.1 Commencing on the Commencement Date, Timbermans Group will make available the Annual Supply for each Year by delivering the Timber to the Mill. 10.2 For the purposes of its compliance with its obligations to make the Annual Supply available to the Company in any Year, Timbermans Group will be deemed to have made available that quantity which it is ready willing and able to deliver and not any lesser quantity which it actually makes available at the request of the Company. 10.3 Subject always to the parties being able to reach agreement on the conditions which would apply, Timbermans Group may make part or all of the Annual Supply available to the Company by issuing it with licences under the Act enabling the Company to harvest and haul Timber from the Area of Supply. Where the Company harvests and hauls Timber under this clause 10.3, the Company must comply with conditions of the licences issued to it under the Act. 11. ANNUAL DELIVERY PLAN 11.1 The Annual Delivery Plan: 11.1.1 must be based on the Annual Supply, or other such lesser quantity advised by the Company in accordance with clause 9.1; 11.1.2 must set out indicative information regarding the Monthly Quantities during the Year to which it applies; 11.1.3 must make provision for stockpiling by the Company at the Mill to make provision for wet weather preventing Contract Harvesting of Timber by Timbermans Group. 11.2 Timbermans Group and the Company must as soon as practicable after the date of this Agreement, confer and negotiate in good faith to reach agreement on an Annual Delivery Plan for the remainder of Year after the Commencement Date. In default of agreement, the Annual Delivery Plan will be determined by Timbermans Group in accordance with the matters referred to in clause 11.1 and otherwise providing for Timber to be delivered in approximately equal monthly volumes. 11.3 Not later than 30 April in each Year, Timbermans Group and the Company must confer and negotiate in good faith to reach agreement on an Annual Delivery Plan for the following Year. In default of agreement, the Annual Delivery Plan will be determined by Timbermans Group in accordance with the matters referred to in clause 11.1 and otherwise providing for Timber to be delivered in approximately equal monthly volumes. 11.4 If in accordance with clause 11.2 the Company advises State Forest of an intention to take less Timber than previously advised which requires an amendment of the Annual Delivery Plan, Timbermans Group and the Company must confer and negotiate in good faith to reach agreement on an amended Annual Delivery Plan. 12. MONTHLY DELIVERY SCHEDULES 12.1 The Monthly Delivery Schedule: 12.1.1 must be based on, but not bound to, the indicative information in the Annual Delivery Plan for the month to which it applies; 12.1.2 must state the Monthly Quantity for the month to which it applies; 12.1.3 must take into account the need for the Company to stockpile Timber at the Mill to make provision for wet weather preventing Contract Harvesting, while recognising the need to maintain log quality; 12.1.4 must include any special delivery requirements the Company may have for that month, as agreed between the parties. 12.2 No later than seven (7) days prior to the commencement of each calendar month the parties must confer and negotiate in good faith to reach agreement on a Monthly Delivery Schedule for that month. In default of agreement, the Monthly Delivery Schedule will be determined by Timbermans Group in accordance with the matters referred to in clause 12.1 and otherwise providing for a Monthly Quantity approximately equal to 9% (for the months of February to November inclusive) and 5% (for the months of December and January inclusive) of the quantity of Timber to be delivered in the relevant Year in accordance with the Annual Delivery Plan. Timbermans Group must provide the Company with the Monthly Delivery Schedule determined by it not less than two (2) Business Days prior to the commencement of the month to which it applies. Any determination by Timbermans Group must, as far as is reasonably practicable, take into account the current market requirements of the Company but otherwise provide for the Monthly Quantity to be delivered in approximately equal weekly quantities apart from periods of shut down in the Mill. 12.3 If either party wishes to vary a Monthly Delivery Schedule during the month to which it applies, the party must notify the other as soon as practicable and the parties must negotiate in good faith to reach agreement on an amended Monthly Delivery Schedule. In default of agreement the original Monthly Delivery Schedule shall apply. 13. AMENDING OF ANNUAL DELIVERY PLAN OR MONTHLY DELIVERY SCHEDULE 13.1 Where any timber in the Area of Supply has been damaged or destroyed by fire, disease or other natural cause or access to the timber intended to supply the Annual Supply is otherwise prevented by Force Majeure, Timbermans Group may, after consultation and agreement with the Company, amend any Annual Delivery Plan or Monthly Delivery Schedule as it deems necessary to facilitate Salvage operations or to adjust to the unavailability of timber. 13.2 Subject always to 13.2.1 the Company's right to refuse to accept delivery of timber which does not conform to the Specifications or to take Timber in excess of the Annual Supply; and 13.2.2 Delivered Prices for the Timber involved taking into account any additional costs that the Company can demonstrate to Timbermans Group' reasonable satisfaction will be incurred by the Company in processing the Timber through the Mill solely by reason of it being harvested in Salvage operations; the Company must cooperate in Timbermans Group' efforts to sell Timber arising from Salvage operations. 14. DELIVERY 14.1 The Company must accept Timber delivered to the Mill by Timbermans Group: 14.1.1 substantially in accordance with the Monthly Delivery Schedule; and, 14.1.2 during the delivery hours in clause 14.2. 14.2 The delivery hours on Business Days are between 0700 and 2300 hours or as otherwise agreed by the parties, (`specified hours'). Delivery hours on weekends, public holidays and on Business Days outside the specified hours are to be by arrangement between Timbermans Group and the Company. 14.3 The Company must use all reasonable endeavours to unload log trucks within 20 minutes of their arrival at the Delivery Site. 14.4 The Company must ensure that all unloading operations are performed in a safe manner in accordance with the NSW Occupational Health and Safety Act and any other code issued by NSW WorkCover or other relevant agency which replaces or exercises the functions carried out by NSW WorkCover. 14.5 Timbermans Group must ensure that all truck drivers delivering Timber to the Mill undertake site induction training provided by the Company at the Company's expense. Nothing in this clause 14.5 requires the Company to pay any money to the truck drivers or their employers. 15. SPECIFICATIONS 15.1 The Company will accept any timber which, when delivered to the Mill, conforms to the Specifications. 15.2 Timber will be deemed to conform to the Specifications once the delivery docket has been signed by the Company and the Company does not object under clause 15.3 to its failure to meet the Specifications. 15.3 If the Company disputes that timber delivered by Timbermans Group conforms to the Specifications, the Company will advise Timbermans Group of the dispute within three Business Days of delivery of the timber and set the timber aside for inspection and adjudication by a suitably qualified Timbermans Group officer. 15.4 Timbermans Group must arrange for the inspection and adjudication of disputed timber within three business days after receipt of advice referred to in clause 15.3. 15.5 Subject to clause 15.7 the Company must accept the determination of the suitably qualified Timbermans Group officer regarding disputed timber as final and binding. 15.6 If a Timbermans Group Officer determines that disputed timber fails to meet the Specifications: 15.6.1 Timbermans Group may arrange for the timber to be reserviced so that it complies with the Specifications; or 15.6.2 the Company may, at its sole discretion, elect to accept delivery of the timber on terms and conditions (including price) to be agreed between the parties and in such a case the disputed timber will be deemed to be Timber made available to the Company as part of the Annual Supply; or 15.6.3 if, for any reason, the Company does not elect to accept delivery of the timber, Timbermans Group must remove the timber from the Mill within 7 days at Timbermans Group' expense 15.7 If the Company disputes a determination by a suitably qualified Timbermans Group officer, the Company may appeal to Timbermans Group General Manager Marketing within two Business Days of the determination. The Company must accept the determination of Timbermans Group General Manager Marketing or his nominee regarding disputed timber as final and binding. 15.8 Timbermans Group recognises the importance of the size and consistency of the delivered log mix to the operation of the Mill. The Company also recognises the difficulties associated with supplying a delivered log mix that does not vary to reflect the inherent variability of the forest. Subject always to Timbermans Group' sole discretion to determine from time to time the location and type of Contract Harvesting operations necessary to supply Timber under this Agreement, in accordance with Timbermans Group' opinion of good forest management, and the limitations that flow from the exercise of that discretion, Timbermans Group will use reasonable endeavours to meet the following log length mix in the Annual Supply summarised below: ------------------------------------------ Nominal Log Lengths Target % of Lengths (m) volume delivered ------------------------------------------ 3.6 - 4.2 10 ------------------------------------------ 4.8 30 ------------------------------------------ 5.4 - 6.0 60 ------------------------------------------ 16. TITLE AND RISK 16.1 Ownership of the Timber comprising the Annual Supply will pass to the Company on payment for the Timber by the Company to Timbermans Group. 16.2 The risks of ownership of the Timber forming part of the Annual Supply will pass to the Company once the Timber has been delivered to the Mill and the delivery docket has been signed. 17. DELIVERED PRICES 17.1 The prices payable by the Company for Timber delivered to it under this Agreement will be the Delivered Prices. 17.2 The Delivered Prices for Timber at the date of this Agreement are as specified in Schedule 3. 17.3 The parties acknowledge the Delivered Prices assume that Timber may be delivered during the delivery hours in clause 14.2 and that any reduction in the delivery hours may result in an increase in the costs of delivery. 18. DELIVERED PRICE REVIEW 18.1 The Delivered Prices applicable at the Commencement Date shall be the Delivered Prices at the date of this Agreement varied by the percentage determined by Timbermans Group by applying the Delivered Price Review Mechanism. 18.2 The Delivered Prices for each Half Year occurring after the Commencement Date shall be the Delivered Prices for the previous Half Year varied by the percentage determined by Timbermans Group by applying the Delivered Price Review Mechanism. 18.3 As soon as practicable after the Commencement Date and the start of each Half Year thereafter Timbermans Group must apply the Delivered Price Review Mechanism to determine the Delivered Prices to apply until the next Half Year. Timbermans Group must provide the Company with details of its application of the Delivered Price Review Mechanism and the Delivered Prices so determined shall be applied retrospectively to the Commencement Date or the start of the Half Year as the case may be. 18.4 The parties must review the Delivered Prices and the Delivered Price Review Mechanism on or before the anniversary of 5 years from the Commencement Date and before the expiration of each subsequent 5 Year period and negotiate in good faith to reach agreement on whether to: 18.4.1 amend the Delivered Prices; 18.4.2 amend the Delivered Price Review Mechanism by: (a) adding, deleting or varying any Cost Items, indicators, indicator rates or weightings; or (b) by replacement with a new mechanism for calculating annual shifts in the market value of Timber delivered at the Mill; or 18.4.3 do any combination of (a) or (b) above, and in default of agreement (and subject to clause 18.5) Timbermans Group may: 18.4.4 determine whether any amendment or replacement is necessary; 18.4.5 may make such any amendment or replacement or both, as it considers necessary; and 18.4.6 implement its determination in relation to Delivered Prices to apply in the Year following the Year of the review. 18.5 Any agreement or determination under clause 18.4 must meet the requirements that: 18.5.1 the Delivered Prices are fair, reasonable and competitive in comparison to current market prices for Timber (or timber types similar or comparable to Timber) harvested and hauled in similar or comparable quantities, quality, distances and other circumstances to those which apply under this Agreement; and 18.5.2 the Delivered Price Review Mechanism provides a fair and reasonable mechanism for calculating shifts in the market value of Timber delivered at the Mill. 18.6 If: 18.6.1 an exceptional change occurs in the Indicator Rate of an Indicator; or 18.6.2 a factor which is not then included as an Indicator or a Cost Item becomes apparent which may have a significant effect on the market value of Timber delivered to the Mill; a party may request a review of the Delivered Price Review Mechanism and the parties must negotiate in good faith to reach agreement on whether to amend the Delivered Price Review Mechanism by adding, deleting or varying any Cost Item, Indicator, Indicator Rate, or Indicator Weighting and in default of agreement (and subject to clause 18.7) Timbermans Group may: 18.6.3 determine whether any amendment is necessary; 18.6.4 make such any amendment as it considers necessary; and 18.6.5 implement its determination in relation to Delivered Prices to apply in the Year following the Year of the review. 18.7 Any agreement or determination under clause 18.6 must meet the requirement that the Delivered Price Review Mechanism provides a fair and reasonably mechanism for calculating shifts in the market value of Timber delivered at the Mill. 19. INFORMATION 19.1 The Company must throughout the Term maintain and keep all accounts and other written information relating to its sales of Products relevant to the review of the Delivered Prices or the Delivered Price Review Mechanism under clause 16 together with all documentation which may verify the accuracy of such information. 19.2 Timbermans Group may request information from the Company relating to its sales of products relevant to the review of Delivered Prices or the Delivered Price Review Mechanism including any documentation verifying the accuracy of such information. 19.3 The Company must promptly provide the information, on a confidential basis, to Timbermans Group. 19.4 If requested by Timbermans Group, the Company must provide to an independent auditor engaged by Timbermans Group full access to all accounts and papers and full information and assistance necessary for the auditor to examine and verify any information which Timbermans Group may request under clause 19.2 or is provided by the Company under that clause. 19.5 Timbermans Group must advise the Company in writing of any variation to Delivered Prices or the Delivered Price Review Mechanism as soon as practicable after the variation is agreed or determined. 20. GOODS AND SERVICES TAX 20.1 Delivered Prices and any other consideration for supplies specified in this Agreement do not, subject to the operation of this clause, include any amount in respect of GST unless provided otherwise. 20.2 The GST may be imposed on the Delivered Price for Timber delivered under this Agreement. 20.3 If GST is or will be imposed on a supply made under this Agreement, the supplier may: 20.3.1 increase the consideration otherwise provided for that supply under this Agreement by the amount of that GST; or 20.3.2 otherwise recover from the recipient the amount of that GST. 20.4 The supplier must ensure that any invoice issued under this agreement in respect of a taxable supply is a Tax Invoice or Adjustment Note as appropriate or, if no invoice is to be otherwise issued under this Agreement, must issue a Tax Invoice or Adjustment Note as appropriate within 7 days of GST being imposed on a taxable supply made under this Agreement. Notwithstanding any other provision of this Agreement the payment of any amount by the recipient in respect of a taxable supply is subject to the issuing of the relevant Tax Invoice or Adjustment Note to the recipient. 20.5 Costs required to be reimbursed or indemnified under this Agreement must exclude any amount in respect of GST included in the costs for which an entitlement arises to claim an input tax credit provided that the reimbursement or indemnification does not amount to consideration for a taxable supply. 20.6 If the consideration for a supply under this Agreement is calculated by reference to the consideration or value of other supplies, in performing that calculation, the consideration or value for those other supplies excludes any amount in respect of GST payable on those supplies. 20.7 In the calculation of Delivered Prices by reference to movements in any index, such as the Consumer Price Index: 20.7.1 any increase in the index attributable to the introduction or increase in the rate of GST published by the Commonwealth Statistician or similar government body is to be excluded from the index for the purposes of adjusting the consideration; 20.7.2 if the Commonwealth Statistician or similar government body does not publish the increase in the index attributable to the introduction or increase in the rate of GST, Timbermans Group or the Company may request the president for the time being of the Institute of Chartered Accountants in Australia or an officer of another Australian professional association agreed by Timbermans Group and the Company to appoint a person to decide the increase in the index attributable to the introduction or increase in the rate of GST for the purposes of this clause; 20.7.3 the person appointed will act as an expert and not an arbitrator; 20.7.4 the expert's decision is final and binding on the parties; and 20.7.5 Timbermans Group and the Company must each pay one half of the expert's fee (including expenses) in relation to the decision. 20.8 In this clause: 20.8.1 Adjustment Note includes any document or record treated by the Commissioner of Taxation as an adjustment note or as enabling the claiming of an input tax credit for which an entitlement otherwise arises; 20.8.2 GST includes any replacement or subsequent similar tax; 20.8.3 GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth); 20.8.4 New Tax System changes has the same meaning as in the Trade Practices Act 1974 (Cth); and 20.8.5 Tax Invoice includes any document or record treated by the Commissioner of Taxation as a tax invoice or as enabling the claiming of an input tax credit for which an entitlement otherwise arises. 20.8.6 Terms defined in the GST Act have the same meaning in this clause unless provided otherwise. 21. PAYMENT 21.1 Timbermans Group will issue monthly invoices for the Timber delivered to the Company. 21.2 The Company must pay any amounts owing to Timbermans Group under an invoice within 28 days of the end of month during which the Timber referred to in the invoice was supplied. 21.3 If the Company fails to pay an invoice on the due date for payment of that invoice, Timbermans Group may suspend the Company's right to obtain Timber under this Agreement until payment is made. 21.4 If the Company does not accept delivery of Timber harvested in accordance with the Monthly Delivery Schedule or agreed changes to the Monthly Delivery Schedule, Timbermans Group may estimate the quantity of that Timber and issue an invoice to the Company within 30 days of that Timber being harvested as if the estimated quantity had been accepted by the Company. Any such invoice will be deemed to be an invoice for Timber delivered to the Company and the provisions of clauses 21.2 and 21.3 will apply to it. The invoice will be accepted by the Company as pre-estimated and liquidated damages and not a penalty. 21.5 Where the Company pays an invoice issued under clause 21.4 and the relevant Timber are subsequently accepted by the Company, Timbermans Group will adjust its invoices to take into account the previous payment. 22. MEASUREMENT 22.1 The Timber delivered by Timbermans Group to the Mill must be measured as provided under the Code of Procedure to be agreed between the parties. The Code of Procedure must provide for the measurement of the weight, diameter class and volume of Timber delivered to Mill by weighbridge and electronic log scanning. The Code of Procedure may be amended by Timbermans Group from time to time as may be considered necessary by Timbermans Group, acting reasonably. Timbermans Group will consult with and take into account any comments of the Company before any amendments are effected or implemented. 22.2 For the purpose of weight measurement for accounting purposes the Company must install a weighbridge at the Mill which is suitable for weighing 25 metre B double trucks in a single weigh. 22.3 The Company must provide an electronic log scanning measuring system to measure the number of logs and volume by diameter class of Timber delivered by Timbermans Group to the Mill which is acceptable to Timbermans Group and which will provide computerised output and electronic data transfer capabilities which are acceptable to Timbermans Group. 22.4 The Company must maintain and verify the weighbridge and the electronic log scanning measuring system as required by the manufacturer's specifications and otherwise in accordance with the Code of Procedure. Timbermans Group may from time to time undertake an independent verification of the operation and accuracy of the weighbridge or electronic log scanning measuring system at its sole cost. 22.5 The information produced by the weighbridge or electronic log scanning measuring system referred to in this clause 22 must be in any format reasonably requested by Timbermans Group in order to facilitate the efficient preparation by Timbermans Group of sales accounts and contractor payments providing that compliance with Timbermans Group request does not impose an unreasonable cost burden on the Company. 23. COMPANY'S OBLIGATIONS 23.1 The Company will maintain sufficient log stocks at the Mill to allow the Mill to continue operating in difficult supply conditions or where delivery is restricted due to adverse weather conditions, within the constraints of maintaining log quality. 23.2 The Company must comply with: 23.2.1 the provisions of the Act; and 23.2.2 the Code of Procedure. 24. TIMBERMANS GROUP OBLIGATIONS 24.1 Timbermans Group will use its best endeavours to supply Timber substantially in accordance with the Annual Delivery Plan and Monthly Delivery Schedules. 24.2 Nothing in clause 24.1 detracts from Timbermans Group obligations under clause 2.1. 25. INDEMNITY AND INSURANCE 25.1 The Company indemnifies Timbermans Group against all actions, proceedings, claims, demands and expenses by any person in respect of or arising out of the negligent performance by the Company of its obligations under this Agreement. 25.2 Timbermans Group indemnifies the Company against all actions, proceedings, claims, demands and expenses by any person in respect of or arising out of the negligent performance by Timbermans Group of its obligations under this Agreement. 25.3 The Company will take out and maintain Public Liability Insurance with a reputable insurance company approved by Timbermans Group and under a policy approved by Timbermans Group in an amount not less than $10 million for each and every occurrence and not limited in the aggregate for any one period of claim. 25.4 Timbermans Group will maintain Public Liability Insurance to cover public liability under this Agreement. 26. SALE OF TIMBER TO OTHER PERSONS 26.1 Subject to its obligations under this Agreement Timbermans Group reserves the right to and may: 26.1.1 supply timber, products and forest materials from the Area of Supply; 26.1.2 issue licences to obtain timber, products or forest materials within the Area of Supply; 26.1.3 sell part or all of the Annual Supply not taken or proposed to not be taken by the Company in any Year; or, 26.1.4 sell any Timber which does not form part of the Annual Supply; to any other person. 26.2 The Company may sell Timber supplied under this Agreement to any other person before processing the Timber through the Mill provided that at the conclusion of each Year the Company must give Timbermans Group a written statement of the quantity of any such Timber sold to during the Year. 27. SECURITY 27.1 The Company must provide and maintain security (`security') for the performance of its obligations under this Agreement in a sum determined by Timbermans Group from time to time. Each Year of the Term the amount of the security determined by Timbermans Group may not exceed the maximum amount which would be payable by the Company for Timber delivered during any eight (8) week period assuming that Timber was delivered in accordance with the Annual Delivery Plan for that Year (`secured amount'). 27.2 Any determination of the secured amount by Timbermans Group must be in accordance with its internal credit policy applicable at the time. The Company may from time to time in writing request Timbermans Group to re-determine the secured amount and, provided the Company is able to demonstrate to Timbermans Group reasonable satisfaction that a material change in the Company's financial circumstances has occurred, Timbermans Group must review its determination of the secured amount. 27.3 The security must: 27.3.1 be in a form of a bank guarantee or other form approved by Timbermans Group; and 27.3.2 be lodged within fourteen (14) days of written request by Timbermans Group. 27.4 Timbermans Group may, after advising the Company, draw upon the secured amount to cover any loss or damage caused by the Company's breach of its obligations under this Agreement. 27.5 If Timbermans Group draws on the secured amount under this Agreement but does not terminate this Agreement as a result of the breach or if Timbermans Group gives written notice of an increase in the secured amount, then the Company must provide additional security on Timbermans Group written request so that the secured amount is maintained at the level determined under clause 27.1. 27.6 Timbermans Group may suspend the Company's rights to obtain Timber under this Agreement if the Company fails to lodge the security when requested to do so. 27.7 Timbermans Group must release the security to the Company after the expiration of 6 months of the date of termination of this Agreement if no money is due to Timbermans Group. 28. FORCE MAJEURE 28.1 If the Company is prevented from taking Timber by Force Majeure and: 28.1.1 the Force Majeure was not caused by any unlawful act or omission on the part of the Company or any employee or agent of the Company; 28.1.2 the Company had taken all reasonable or practicable precautions to prevent the Force Majeure; and 28.1.3 the Company has made all reasonable efforts to contain the effect of the Force Majeure, then the Company may apply to Timbermans Group for suspension or modification of its obligations under this Agreement to the extent that its obligations have been affected by the Force Majeure. 28.2 Where the Company makes application under clause 28.1, Timbermans Group will negotiate with the Company in good faith to review the Annual Supply taking into account the effect of the Force Majeure event on the productive capacity of the Company, but subject to the obligation on the Company to do all things necessary or practicable to mitigate the effect of the Force Majeure on the functions and obligations of Timbermans Group under this Agreement and the Act. 28.3 Where the Company applies for suspension or modification of its obligations under clause 28.1 and the relief granted results in the Timber harvested being less than 50 percent of the Annual Supply in any two consecutive Years, Timbermans Group may reduce the Annual Supply to an amount equal to the average of the Timber taken by the Company over those two Years. If no Timber are taken over those two Years, the Agreement may be terminated by Timbermans Group or the Company by notice in writing to the other party. 28.4 If Timbermans Group is prevented from performing all or any of its obligations under this Agreement by reason of the Force Majeure and: 28.4.1 the Force Majeure was not caused by any unlawful act or omission on the part of Timbermans Group or any employee or agent of Timbermans Group; 28.4.2 Timbermans Group had taken all reasonable or practicable precautions to prevent the Force Majeure; and 28.4.3 Timbermans Group has made all reasonable efforts to contain the effect of the Force Majeure, then 28.4.4 the Company will have no claim against Timbermans Group or the State of New South Wales for non-fulfilment of Timbermans Group' obligations under this Agreement, to the extent that the non-fulfilment is due to the event of Force Majeure; 28.4.5 Timbermans Group will use its best endeavours to assist the Company to locate an alternative supply of Timber from Crown-timber land, until Timbermans Group is able to resume supply of the Annual Supply. To resolve any doubt Timbermans Group will have no obligations to deliver such Timber and Timbermans Group will not be liable to meet any costs associated with the Company obtaining an alternative supply; and 28.4.6 if Timbermans Group is unable to resume the performance of its obligations within a period of 6 months from the date of the occurrence of the Force Majeure or date when the occurrence of the Force Majeure first became apparent (the `relevant date') either party may terminate the Agreement by notice. The right to give notice under this clause 28.4.3 must be exercised within a period of 9 months from the relevant date and in this regard time will be of the essence. 28.5 A party affected by an event of Force Majeure must give initial notice of the existence or occurrence of the event of Force Majeure as soon as is practicable to do so and in any case it must provide a more detailed notice within thirty (30) days of the event of Force Majeure being apparent which provides clear details of the event or occurrence claimed as Force Majeure and setting out particulars of the likely effects of the event or occurrence in question. 28.6 If the Company fails to comply with the notice requirements under clause 28.5, Timbermans Group will be entitled to take the consequences of this failure into account in assessing the effect and mitigation of the Force Majeure under clause 28.2. 28.7 If Timbermans Group fails to comply with the notice requirements under clause 28.5 the Company may require Timbermans Group to supply details of any alternate supplies of Timber which could be made available to the Company to mitigate the consequence of late notification. 29. PRIORITY OF SUPPLY 29.1 If an event of Force Majeure results in a reduction in the yield of Timber within the Area of Supply then Timbermans Group must allocate the available Timber to the Company and other persons, with contracts with Timbermans Group for the supply of Timber from the Area of Supply, in proportion to their respective entitlements under their contracts. 29.2 The Company will have no claim against Timbermans Group for non-compliance with its obligations to make the Annual Supply available if Timbermans Group, as far as is reasonably practicable, supplies Timber in substantial compliance with clause 29.1. 30. LIMITATION OF LIABILITY 30.1 Where Timbermans Group is in breach of this Agreement by reason of any failure to supply or deliver Timber any claim for loss suffered by the Company will be limited to the lesser of; 30.1.1 the loss, damage or expense which would be incurred by the Company as a direct result of obtaining the Timber (which Timbermans Group failed to make available, supply or deliver) from the most economic alternative source; or 30.1.2 the Company's loss of earnings after deducting operating costs but before interest, tax, depreciation, and amortisation; but shall not otherwise include consequential loss. 30.2 Except where this Agreement otherwise provides, if the Company is in breach of this Agreement by reason of any failure to take timber, any claim for loss suffered by Timbermans Group will be limited to any loss, damage, or expense incurred by Timbermans Group as a direct result of the failure of the Company to take the timber under this Agreement. 31. TERMINATION OF AGREEMENT 31.1 Timbermans Group may terminate this Agreement if the Company: 31.1.1 suffers an Insolvency Event; or 31.1.2 commits a material breach of this Agreement and the default is not remedied by the Company to the satisfaction of Timbermans Group within a period of sixty (60) days in relation to a material breach in terms of clause 3.4, and thirty (30) days in relation to any other material breach, after notice of the breach has been served on the Company. Material breaches include without limitation: (i) a material breach in terms of clause 3.4; (ii) failing to comply with clause 3.5; (iii) failing to take the quantities of Timber prescribed in clause 9.7.1 or 9.7.2 and the procedure contained in clause 9.7.3 and 9.7.4 has been complied with; (iv) failing to accept Timber in breach of clauses 14.1; (v) failing to make payments in breach of clause 21.2; (vi) failing to provide security or to adjust or vary the secured amount in breach of clause 27; (vii) purporting to assign the whole or any part of this Agreement without the consent of Timbermans Group in breach of clause 35. 31.2 If Timbermans Group commits a material breach of this Agreement and the default is not remedied within a reasonable period after notice to remedy the breach has been served on Timbermans Group, then the Company may terminate this Agreement. A material breach includes without limitation failing to supply the Annual Supply in breach of clause 2.2.1. 31.3 The party terminating this Agreement arising from the default of the other party may claim damages for all loss arising from the default unless the claim for damages is excluded under this Agreement. 32. DISPUTES The following procedures will apply to disputes under this Agreement: 32.1 If a party claims a dispute the parties must first seek resolution by negotiation to be conducted between the Chief Executive Officers of the respective parties and, failing resolution within 28 days, the dispute must be referred to mediation by the Australian Commercial Disputes Centre (`ACDC'). 32.2 In the event that the dispute has not been resolved within twenty eight (28) days after the appointment of a mediator then, unless otherwise agreed in writing between the parties, the dispute must be submitted to arbitration, administered by ACDC. 32.3 The arbitrator will be agreed between the parties or, failing Agreement, shall be appointed by the Secretary-General of the ACDC or similar body. The arbitrator must not be the same person as the mediator. 32.4 Any mediation or arbitration proceedings must be held in Sydney. Any arbitration must be undertaken in accordance with and subject to the Institute of Arbitrators Rules for the conduct of Commercial Arbitration. 32.5 The Arbitrator or some person appointed on the Arbitrator's behalf may investigate the Company's and Timbermans Group' affairs and accounts so far as may be necessary to assist the Arbitrator to determine any matter referred for arbitration. The Company and Timbermans Group must give the Arbitrator full access to all accounts and papers necessary for that purpose and must afford the Arbitrator full information and assistance. 32.6 The provisions of this clause 32 will not apply to clause 27. 32.7 In so far as the provisions of this clause 32 apply to clause 18 the issue for consideration by any mediation or arbitration is to be limited to whether the Delivered Price or the Delivered Price Review Mechanism in dispute (the "disputed item"), was a reasonable one in consideration of the factors set out in clause 18 to be taken into account in determining the disputed item. To avoid any doubt any such arbitration may not determine the Delivered Price or the Delivered Price Review Mechanism which is to apply. 32.8 If an arbitration regarding a disputed item determines the disputed item was unreasonable the disputed item will be void ab initio and Timbermans Group must: 32.8.1 promptly redetermine the disputed Delivered Price or the Delivered Price Review Mechanism which will then apply from the first date the dispute item was originally intended to apply; 32.8.2 refund to the Company any over payment made under the disputed item. 33. WAIVER 33.1 Agreement by Timbermans Group to an Annual Delivery Plan or Monthly Delivery Schedule or amendment thereto which provides for the Company to take less than the Annual Supply in any Year will not constitute a waiver of any obligation imposed, or right given, by this Agreement. 33.2 A party does not waive a right or power simply because it fails to exercise or delays exercising that right or power. A single exercise of a right or power does not prevent exercising it again or exercising any other right or power. A right or power may only be waived in writing signed by the party to be bound by the waiver. 34. VARIATION 34.1 This Agreement contains the total understanding of the parties. 34.2 None of the provisions of this Agreement may be varied, waived, discharged or released either at law or in equity, unless by the express consent of the parties in writing. 35. ASSIGNMENT 35.1 The Company may not without the prior written consent of Timbermans Group assign its rights and responsibilities under this Agreement to any person provided that Timbermans Group' consent will not be unreasonably withheld. Any Change in Control of the Company will be deemed to be an assignment of the Company's rights and entitlements under this Agreement. 35.2 The consent given by Timbermans Group may be subject to the assignee executing all agreements and other documents which Timbermans Group reasonably requires. 35.3 All money due to Timbermans Group under this Agreement must be paid before any assignment of it by the Company. 36. INTEREST 36.1 In the event that the Company fails to pay any money due to Timbermans Group when required to do so by this Agreement, interest will accrue on all unpaid money from the date of default until payment in full at the rate of interest per annum for the time being payable under Schedule J of the Supreme Court Rules (NSW). 37 NOTICE 37.1 Any notice required to be served under this Agreement may be served: 37.1.1 in the case of the Company: Attention: Managing Director Integrated Forest Products Pty Ltd 95 Salmon Street Port Melbourne, VIC. 3207 Phone: 0386454300 Fax: 0386454301 37.1.2 in the case of Timbermans Group: Attention: Managing Director Timbermans Group Pty Ltd 11 - 12 Government Road Eden, NSW, 2551 Phone (02) 64961222 Fax (02) 64963097 37.2 The parties may change the address for service of notice from time to time by notice in writing to the other party. 38. GOVERNING LAW 38.1 This Agreement is governed by the laws of New South Wales and the parties agree to the jurisdiction of the Courts of New South Wales. 39. SEVERABILITY 39.1 If any provisions of this Agreement are held to be invalid, illegal, or unenforceable by a Court or other tribunal of competent jurisdiction, the validity, legality, and enforceability of the remaining provisions will not in any way be affected or impaired thereby. 40. CONFIDENTIALITY 40.1 No party will disclose the contents or terms of this Agreement or any information or documents received by it in connection with the negotiation of this Agreement or pursuant to the provisions of this Agreement without the prior written consent of the other parties, except to the extent that: 40.1.1 the information is available to the public generally; 40.1.2 that party is required to make the disclosure by law or to make any filing, recording or registration required by law; 40.1.3 the disclosure is necessary or advisable for the purpose of obtaining any consent, authorisation, approval or licence from any public body or authority; 40.1.4 it is necessary that the disclosure be made to any taxation or fiscal authority; 40.1.5 the disclosure is made on a confidential basis to the professional advisers of that party (including any industry association) for the purpose of obtaining advice in relation to this Agreement or the enforcement of this Agreement or otherwise for the purpose of consulting those professional advisers; or 40.1.6 the disclosure is required or desirable to be made in pursuance of any procedure for discovery of documents and any proceedings before any court, tribunal or regulatory body. IN WITNESS WHEREOF the parties hereto execute this Agreement as a Deed and have signed, sealed and delivered this Agreement on the day and year hereinbefore written. I, Tony Esplin have hereunto affixed the Seal of the ) TIMBERMANS GROUP PTY LTD ) in the presence of: )............................... ......................................... THE COMMON SEAL of INTEGRATED ) FOREST PRODUCTS affixed in accordance with its Constitution ) in the presence of: ) ......................................... ........................ Secretary Director