Terms of Lease

The Terms of Lease are as follows:

1.1. Definitions

Company means Direct Logistics Pty Ltd, a company organised and existing under the laws of Australia with offices at: Unit 10, 60 Keilor Park Drive, East Keilor, VIC 3033 Australia (hereinafter known as “Company); and

ISO Tank Container means any assets of the Company leased to the Lessee, including but not limited to ISO Tank, secondary containment unit (SCU) or fall arrest units.

Lessee means the business which has requested to lease ISO Tank Containers from the Company.

Lease Quote means the quotation provided by Company to Lessee setting out the rates and operational details on which the ISO Tank Container is leased (in addition to the terms and conditions contained herein).

1.2. Acceptance of Terms

Leasing of ISO Tank Containers are performed subject only to these lease terms.

1.3. Supply Schedule

The Company agrees to lease to the Lessee the ISO Tank Container(s) as per the Lease Quote.

1.2. Effective Lease Date 1.3. On-hire Date

The term of the Lease of each ISO Tank Container shall commence from the deport stock report.

1.4. Lease Term
1.4.1. The Lease is on hire from the time [3rd party information] until accepted for off-hire by

the Company (unless otherwise agreed in writing).

1.4.2. The Lease shall remain in force until accepted for off-hire by the Company (unless otherwise agreed in writing). Nothing in the Lease gives the Lessee the right to retain any of the ISO Tank Containers beyond the term of the Lease.

1.7. Delivery

1.7.1. Company use all reasonable efforts to make available or deliver the ISO Tank Containers from Company’s open depots to the locations as agreed. The delivery charges as per the Lease Quote shall apply.

1.8. Return
1.8.1. Following the termination of the Lease, the Lessee shall return the ISO Tank Containers

to Company’s depots. The return charges as per the Lease Quote shall apply.

 

2. Charges and Fees

2.1. Currency

All charges are in AUD Dollars

2.2. Daily Rent per ISO Tank Container (Daily Rent)

The Daily Rent is effective from the On-hire Date and is payable until each ISO Tank Container is returned to the Company in accordance with the terms of this Lease.

2.3. Handling Charges 2.3.1. Handling – Out Charge

Handling and delivery charges (where applicable) are payable on delivery of each ISO Tank Container:

2.3.2. Handling – In Charge
Handling charges are payable on return of each ISO Tank Container: 2.4.
Replacement Value and Depreciation

2.4.1. In the event an ISO Tank Container is damaged beyond economic repair, lost or destroyed (including damaged to the extent it cannot be recertified for future use) the Lessee shall pay to Company the Replacement Value.

2.4.2. The Replacement Value is as per the below:

ISO Tank: Will be determined on sourcing a “like for like” replace from the secondary market (which includes but is not limited to age, condition etc).

Secondary Containment Unit: These cannot be sourced in the secondary market and will be charged as per cost to have an immediately useable replacement to door (equivalent to DDP order from factory plus additional in country adjustments to Australian standards).

Fall Arrest: These cannot be sourced in the secondary market and will be charged as per cost to have an immediately useable replacement to door (equivalent to DDP order from factory plus additional in country adjustments to Australian standards).

2.4.3. Replacement value shall always be invoiced in AUD Dollars 3. Billing and Payment
3.1. Billing Address

At the request of the Lessee, Company’s billing for rent and other charges due under the Lease shall be invoiced by Company to the contact details provided by the Lessee at the time of arranging the lease. The Lessee warrants the accuracy of this information and will notify the Company in writing within 14 days if there is a material change to the contact details provided.

 

3.2. Billing Frequency Monthly in Arrears
3.3.
Billing Currency AUD Dollars

3.4. Payment Terms

14 Days from Invoice Date unless otherwise agreed in writing. Notwithstanding that the last day for payment may fall on a weekend or public holiday it is the Lessees responsibility to ensure payment reaches Company within the agreed time.

4. Miscellaneous
4.1. ISO Tank ISO Tank Containers

4.1.1. Notwithstanding anything contained in the Lease to the contrary, the Lessee shall inspect the ISO Tanks ISO Tank Containers at the time of delivery and return.

4.1.2. The term ISO Tank Container includes all parts of the ISO Tank ISO Tank Container including the frame, internal lining, stainless steel shell, insulation, electrical components, valves, sensors, gauges, and all other interior and exterior parts.

4.1.3. The Lessee shall operate and maintain the ISO Tank Containers in accordance with any instructions, recommendations, regulations or agreements concerning the cargo carried, including those displayed on the ISO Tank Containers. The Lessee shall ensure that the ISO Tank Containers are not used for any cargo, operated under any conditions, contaminated by any substance, cleaned, repaired or maintained by any procedure which may result in damage to the ISO Tank Containers including corrosion, corrosion pitting, scratching or etching. Any damage or deterioration to the ISO Tank Containers due to but not limited to the above shall not be deemed normal wear. The Lessee shall notify Company of any accident involving the ISO Tank Containers.

4.1.4. ISO Tank Containers designated by Company as “food grade” at the time of delivery shall be used only for the carriage of food grade commodities.

4.1.5. For long term leases (being for a period of 12 months and beyond) the Lessee shall ensure that a record of the last valid test date is maintained for each ISO Tank Container and that the ISO Tank Containers are tested in accordance with the statutory 2.5 and 5 year periodic inspections during the Lease. The Lessee shall make arrangements to carry out periodic tests at duly approved and accredited facilities. Company shall pay the inspection and test costs if the depot and the cost are approved in advance by Company. The Lessee shall pay any other costs involved in the test. All certificates and approvals obtained during the Lease shall be provided to Company at return. At any time during the term of the Lease and upon notice from Company the Lessee shall permit Company’s nominated surveyor to enter the premises of the Lessee or the Lessee’s local agent or sub-contractor to inspect the ISO Tank Containers.

4.1.6. At Lease expiry, the Lessee shall return the ISO Tank Containers to Company in accordance with the terms of the Lease. The Lessee shall inform Company of the Proper Shipping Name and United Nations (UN) Number (where applicable) of the last cargoes and where requested, shall furnish Company with the Material Safety Data Sheet (MSDS) of these cargoes. The ISO Tank Containers shall be returned empty (and where so advised, rinsed).

 

4.1.7. If there is any disagreement about the extent or allocation of any repair or cleaning costs at return, Company shall arrange for the ISO Tank Containers to be examined by an approved independent surveyor. Both parties will accept the surveyor’s decision, and the cost of the inspection will be divided equally between the Lessee and Company.

4.1.8. For the avoidance of doubt, the Lessee shall be liable for deterioration in the ISO Tank Containers which would have been prevented by normal repair or maintenance and such deterioration shall not constitute normal wear.

4.1.9. Where repair costs are allocated to the Lessee, the Lessee shall be permitted to inspect the ISO Tank Container.

4.1.10. Warranty

Company provides no warranty in respect of any Lining or the integrity of the ISO Tank Container. The Lessee shall notify advise Company in writing of any such alleged defects immediately upon their discovery by the Lessee. Save as aforesaid, no condition of warranty has been or is given by Company in relation to any ISO Tank Container or any part of it, and all conditions and warranties in relation thereto whether expressed or implied, whether statutory collateral hereto or otherwise, whether in relation to the fitness of the ISO Tank Container or any part of it for any particular purpose, or to compliance with any convention, statute, regulation, order or other provision of law or standard, or whether in relation to merchantability or as to description, state, quality or condition of the ISO Tank Container or any part of it at delivery or at any other time are hereby excluded and extinguished. Except to the extent required by law, Company shall not be liable for any damage, expense (including legal costs), injury or loss, indirect or consequential, relating to or arising out of the Lessee’s possession or use of the ISO Tank Containers and the Lessee shall indemnify Company against any and all claims, costs, losses and liabilities arising therefrom.

5. General Conditions

5.1. Jurisdiction / Law
These Conditions and any claim or dispute arising out of or in connection with the services of the Company shall be subject to the non-exclusive jurisdiction of the State of Victoria of Australia in which the Company has its principal place of business and any such claim or dispute shall be determined by the Courts of that State or Territory and no other Court.

5.3. GLT
Company’s General Lease Terms (“GLT”) are a part of the Lease and apply to all ISO Tank Containers. In the event of any conflict between the Lease and GLT the provisions of the Lease to the extent of the conflict. If the Lessee does not accept any provision of the Lease and GLT should object within 7 days of receipt of the Lease. If the Lessee fails to object and takes delivery of any ISO Tank Container under the Lease and retains it after receipt of the Lease then the Lease or GLT shall be deemed to be accepted by and shall be binding on the Lessee whether or not it is

 

ANNEX 1: General Lease Terms

1. Payment of Rent and Other Charges

  1. (i)  The daily rent and other charges including such items as handling charges, replacement value and increased rent are as stated in the Lease Quote and the Lease terms. The Lessee agrees to pay the daily rent and other charges from and including the day of delivery up to and including the day the ISO Tank Container is returned to Company in accordance with the terms of the Lease. The time for payment of the rent and other charges is of the essence.
  2. (ii)  Unless otherwise agreed in writing, the Lessee shall pay Company’s invoices within 14 calendar days of the invoice date in the currency of the invoice and to the party shown on the invoice by cheque, electronic funds or wire transfer without set-off, deduction, netting off or counterclaim and free and clear of any taxes or charges and without any deduction or withholding whatsoever in immediately available funds on the date that the payment is due. Notwithstanding that the last day for payment may fall on a weekend or public holiday it is the Lessee’s responsibility to ensure payment reaches Company within the agreed time.
  3. (iii)  If the invoice is not paid when due the Lessee shall pay late payment charges at 1.5% per month or part month compounded on a monthly basis for each month or part thereof that the payment remains outstanding.
  4. (iv)  Notwithstanding paragraph 1(ii), if the Lessee is required to deduct any such taxes, withholdings, charges or deductions (or makes payment in a currency other than the currency stipulated in the invoice which, upon conversion into the currency of the invoice at the exchange rate on the date of payment, falls short of the amount in the invoice) the Lessee shall increase the amount of the payment so that the net amount Company receives on the due date is the amount due and will supply Company promptly with evidence satisfactory to Company that the Lessee has accounted to the relevant authority (where applicable) for the sum so withheld or deducted.
  5. (v)  The Lessee shall comply with all laws and regulations in force from time to time aimed at combating money laundering and the financing of terrorism and warrants that all payments made by the Lessee to Company are from legitimate sources.

2. Delivery

  1. (i)  Company shall use all reasonable efforts to deliver the ISO Tank Containers from the locations and in the quantities specified in the Lease Quote and the Lessee shall pay to Company any delivery charges set out in the Lease Quote. Receipt or delivery of any ISO Tank Containers or any other act by an agent, employee or subcontractor of the Lessee shall be deemed to be the act of the Lessee and be binding on the Lessee.
  2. (ii)  For the purposes of the Lease and these GLT, “Industry Standards” shall mean (i) in the case of dry freight ISO Tank Containers the most current Guide for ISO Tank Container Equipment Inspection as published by the Institute for International ISO Tank Container Lessors (IICL) in effect as at the date of return of the ISO Tank Container in question (ii) in the case of dry freight special ISO Tank Containers the Guide applicable to the unit type (ie for open top equipment the Guide for Open Top ISO Tank Container Equipment and for flatracks the Guide for Flatrack ISO Tank Container Inspection) as published by the IICL (iii) in the case of refrigerated ISO Tank Containers, the General Guide for Refrigerated ISO Tank Container Inspection and Repair (RCIR) as published by the IICL and (iv) in the case of tank ISO Tank Containers, the Acceptable ISO Tank Container Condition (ACC) guidelines as published by the International Tank ISO Tank Container Organisation (ITCO). If the Lessee receives a ISO Tank Container which does not meet

 

the applicable Industry Standards at delivery the Lessee must notify Company within five calendar days and return the ISO Tank Container to the delivery depot (or another depot agreed by Company). If Company or Company’s local agent agrees that the ISO Tank Container did not comply with Industry Standards at delivery, the ISO Tank Container will be replaced with equivalent ISO Tank Container which shall comply with the relevant Industry Standards. If the ISO Tank Container has not been used, Company will pay the costs of handling and transport to and from Company depot.

(iii) The provision of Depot Estimates Report post-delivery shall be evidence that the Company has inspected the ISO Tank Container and agreed it is in good order apart from any notes.

3. Return

  1. (i)  The Lessee agrees to return each ISO Tank Container to Company in a serviceable and good operating condition and in compliance with Industry Standards to the locations and the Lessee shall pay to Company any return charges specified in the Lease Quote.
  2. (ii)  Rent for each ISO Tank Container shall end on the day after the date of its return. If a ISO Tank Container is lost, destroyed or stolen the Lessee shall give proof of loss to Company and pay the replacement value as per clause 2.4 of the main Lease terms.
  3. (iii)  The completion of the Depot Estimates Report on return shall evidence the condition of the ISO Tank Container at the time of its return.
  4. (iv)  If a ISO Tank Container is returned to Company in a damaged or altered condition or otherwise than in compliance with Industry Standards the rent shall continue until the day on which the charges for rectifying the damage or alteration to Industry Standards have been approved by the Lessee. Company or Company’s local agent shall provide the Lessee with an estimate of the charges and permit the Lessee’s local agent to inspect the damage or alteration. If the Lessee’s local agent does not, within five working days of delivery of the estimate of charges, inspect the ISO Tank Container and approve the amount of the charges the Lessee’s approval shall be deemed to have been given. Company or Company’s local agent shall invoice the approved charges to the Lessee’s local agent who shall promptly pay all such invoiced amounts and in any event within 30 calendar days of the invoice date. In the event the Lessee disagrees with the estimate of charges or disputes that any item therein should be for Lessee’s account, the Lessee shall detail his objections by notice to Company in writing within ten days of delivery of the estimate of repair charges. In the event of a continuing dispute Company may appoint an independent third party surveyor to conduct a joint survey of the ISO Tank Containers and review the estimate of repairs. The parties agree to be bound by the decision of the independent surveyor as to the extent of the repairs payable by the Lessee and the reasonable costs thereof, and to share equally the costs of any survey.
  5. (v)  Company or Company’s local agent shall in its reasonable discretion decide whether a ISO Tank Container is so badly damaged that it cannot be repaired. If a ISO Tank Container is damaged or altered and Company determines that it cannot be repaired, or if it is destroyed, lost or stolen, the Lessee shall give proof of loss to Company and pay the replacement value specified in the Lease. In the event the Lessee disagrees with Company’s determination, the Lessee shall detail their objections by notice to Company in writing within ten days of delivery of proof of loss. In the event of a continuing dispute Company may appoint an independent third party surveyor to conduct a joint survey of the damaged ISO Tank Container and the parties agree to be bound by the decision of the independent surveyor as to whether it is a constructive total loss by reference to Industry Standard, and to share equally the costs of any survey.

 

4. Use and Compliance with Laws

  1. (i)  The Lessee shall at its expense comply with all conventions, laws, codes and regulations in force from time to time, including, but not limited to, provisions regarding fraud, money laundering and terrorism, in every jurisdiction in which the ISO Tank Containers may be used or operated and to which the Lessee, Company or the ISO Tank Containers may be subject, and with all rules of any legislative, executive, administrative or judicial body exercising any power or jurisdiction over the ISO Tank Containers and shall pay all duties and other charges which affect the Lease or the ISO Tank Containers. The Lessee shall comply with all customs laws and regulations and pay all duties and other charges when using the ISO Tank Containers in domestic business in any country. The Lessee agrees at its own expense to use, maintain and operate each ISO Tank Container in full compliance with all such laws, regulations, requirements and rules so long as it is subject to the Lease. If any laws, regulations, requirements or rules require the modification of the ISO Tank Containers or any part thereof in order to comply with such laws, regulations, requirements and rules, the Lessee agrees to make such modifications, additions and replacements at its own expense. The Lessee shall further comply with all laws and regulations regarding sanctions and prohibitions imposed by any State, Supranational or International Governmental Organisation, warrants and guarantees to maintain processes that ensure compliance with all such laws and regulations and to keep records of the same available for Company on Company’s first demand and warrants and guarantees that it will not expose Company in any way howsoever, directly or indirectly, to the risk of being or becoming subject to any sanction, prohibition or adverse action in any form whatsoever by any State, Supranational or International Governmental Organisation.
  2. (ii)  The Lessee shall comply with the requirements of the Customs Convention on International Transport of Goods Under Cover of TIR Carnets (Geneva, January 15, 1959), the Customs Convention on ISO Tank Containers, 1956 and 1972, the Safety of Life at Sea Convention (particularly with respect to verified declared weight effective as of 1 July 2016) (in each case as from time to time amended or re-enacted) and other conventions or regulations applicable or pertaining to the carriage of hazardous cargos.
  3. (iii)  All ISO Tank Containers delivered from Company’s depots and manufacturers shall comply with the regulations of the Convention for Safe ISO Tank Containers (CSC) of 1972 (as from time to time amended or re-enacted). The Lessee shall be responsible for the compliance of ISO Tank Containers on lease and for any ISO Tank Containers taken on lease by Direct Interchange. While on lease the Lessee shall ensure that the ISO Tank Containers are safe and fit for the purpose intended.
  4. (iv)  The Lessee will not, without Company’s prior written consent, use any of the ISO Tank Containers for storage or transportation of corrosive substances, hazardous materials, hazardous wastes, high density poorly secured materials, bulk commodities which may corrode, oxidise, severely dent, puncture, contaminate, strain or damage the interior and/or exterior of any of the ISO Tank Containers or could result in injury or damage to third parties or subsequent users of the ISO Tank Containers or make any other use of the ISO Tank Containers which could result in such injury or damage.

5. General Conditions

(i) Company shall endeavour to deliver the ISO Tank Containers by the dates agreed for delivery but it is agreed that the Lessee shall not be entitled to terminate the Lease by reason of Company’s failure to deliver by the agreed dates and Company shall not be liable for any losses, damages, loss of profits or any form of Consequential Loss caused to the Lessee by late delivery of or defects in any of the ISO Tank Containers. Consequential Loss means any loss or damage arising from a breach of contract or agreement (including breach of this Lease and GLT), tort, or any other basis in law or

 

equity including, but without limitation to, loss of profits, loss of revenue, loss of production, loss or denial of opportunity, loss of access to markets, loss of goodwill, indirect or remote or unforeseeable loss, loss of business reputation, future reputation or publicity, or any similar loss which was not contemplated by the parties at the time of entering this Lease.

  1. (ii)  Except as provided in sub-paragraph 7 (ii) below, title to the ISO Tank Containers shall remain with Company (or other owners where the ISO Tank Containers are managed by Company) and the Lessee shall acquire no title to the ISO Tank Containers by virtue of paying rents, costs of transportation or repairs, registration or licensing fees, taxes (property excise or any other governmental fees or charges) or any other expenses or charges related to or assessed against the ISO Tank Containers or their operation during the term of the Lease. Subject to the provisions of this Lease being observed, the Lessee shall have quiet possession of the ISO Tank Containers.
  2. (iii)  The Lessee shall be responsible and liable for, and shall indemnify and hold Company harmless against:
    1. any failure of the Lessee to comply with the provisions of the Lease or any warranty or guarantee in connection therewith;
    2. any claim for loss, damage or injury (including personal injury or death, property damage and insurance claims) arising out of the use, possession or ownership of any ISO Tank Container; and
    3. any forfeiture, seizure, or impounding of, or charge or lien on, any ISO Tank Container.
  3. (iv)  Some of the ISO Tank Containers may be owned by a third party and leased to Company for subleasing. All such subleases including the Lease are subject and subordinate to any such lease and if the third party lease terminates the third party may be entitled to possession of the ISO Tank Containers. However, if the Lessee is not in default and makes all payments to the third party after notice from such third party to do so, the Lessee shall have quiet possession of the ISO Tank Containers. If the Lessee does not pay or some other default occurs, the Lessee may be required to deliver the ISO Tank Containers to such third party.
  4. (v)  The ISO Tank Containers serial numbers and other identifying marks affixed thereto upon delivery, shall not be obliterated, altered, concealed or otherwise changed or hidden from view by the Lessee so as to prevent or block access to such numbers or marks without prior written agreement from Company.
  5. (vi)  The Lessee shall, upon request, provide to Company a detailed listing of Company’s ISO Tank Containers by location. The Lessee shall furnish such information within seven calendar days of such a request.
  6. (vii)  The Lessee undertakes to provide Company with annual audited financial statements and any other financial information on request by Company.

6. Maintenance, Damage, Loss and Destruction of ISO Tank Containers

(i) The Lessee shall at its own expense maintain the ISO Tank Containers in a serviceable and good operating condition, repair and working order and make all necessary replacements of parts using parts and workmanship equal to the original condition of the ISO Tank Containers. The Lessee shall be liable for all damage to and loss of any ISO Tank Container until it is returned to Company in a serviceable and good operating condition. The Lessee shall be liable for all costs and losses to Company arising out of the Lessee’s failure to make repairs, or to replace parts necessary to maintain the ISO Tank Containers in a serviceable and good operating condition. The Lessee shall indemnify and hold Company harmless in respect of any costs or losses incurred by Company arising out of contamination of the ISO Tank Containers, including without

 

limitation the cost of disposal of all or part of any contaminated ISO Tank Container, packing material or cargo.

  1. (ii)  The Lessee shall notify Company in writing as soon as possible if any ISO Tank Container is damaged beyond repair, lost or destroyed, which notification shall include a detailed description of the damage, destruction or loss. Company will determine in its sole judgment whether the ISO Tank Container is damaged beyond repair, lost or destroyed or whether the Lessee can make good, repair or recover the ISO Tank Container in a serviceable and good operating condition. In the event Company determines that the ISO Tank Container is damaged beyond repair, lost or destroyed, the Lessee shall pay to Company within 30 calendar days of Company’s invoice for the replacement value of the ISO Tank Container specified in the Lease whereupon title in the ISO Tank Container shall pass to the Lessee. The daily rental shall continue to be charged until the replacement value is paid to Company.
  2. (iii)  At any reasonable time and from time to time, the Lessee shall permit Company or its authorised representative to inspect any or all of the ISO Tank Containers and shall make the ISO Tank Containers available to Company at any such address as may be mutually agreed.

7. Insurance

  1. (i)  The Lessee shall, at its sole cost and expense, procure and maintain in full force and effect (with insurers acceptable to Company) the following insurances:
    1. Insurance to cover physical loss or damage for an amount not less than the replacement value for each and every one of the ISO Tank Containers until redelivered to Company in accordance with the terms of the Lease;
    2. Insurance to cover against claims made by third parties covering accidental bodily injury and/or property damage including property in the ISO Tank Container for which the Lessee may be held liable (said cover to include Company as an additional insured) for an amount not less than ten million dollars ($20,000,000) in respect of each and every claim; and
    3. Insurance to cover against potential costs or losses to Company arising out of the contamination of any of the ISO Tank Containers, including, without limitation, the cost of disposal of all or part of any contaminated ISO Tank Container.
  2. (ii)  The Lessee shall procure each of the foregoing insurances covering Company’s interests.
  3. (iii)  Any and all deductibles under the terms of the foregoing insurances shall be for the Lessee’s account.
  4. (iv)  Upon signing of the Lease and from time to time as requested by Company, the Lessee shall provide Company with a certificate of insurance or relevant endorsement(s) to evidence that the ISO Tank Containers and the risks are insured as required above.
  5. (v)  Should the Lessee fail to procure, maintain or provide evidence of any of the required insurances, or by act or omission invalidate any such insurance, the Lessee shall indemnify Company to the extent that Company suffers or incurs loss, damage, liability or expense as a consequence of such failure, act or omission. Further, Company shall be entitled to effect insurance on behalf of the Lessee and to recover immediately all costs of such insurance from the Lessee.

8. Taxes and Other Charges

(i) The Lessee shall pay all taxes, charges, duties and fines arising out of or in connection with the use of the ISO Tank Containers during or in respect of the period from delivery until return to Company.

 

(ii) Company shall pay all taxes, charges, duties and fines arising out of or in connection with the ownership of the ISO Tank Containers during or in respect of the period from delivery until return to Company.

  1. Force Majeure Save in respect of any payment obligation under this Lease (which obligations are absolute) neither party shall be responsible for any failure to perform its obligations to the extent such failure is due to an act of god and could not reasonably have been anticipated.
  2. Service of Process and Notices Service of any originating process or notice may be effected by courier, post, facsimile or email to the Lessee’s address described in the first paragraph of the Lease or usual address or as designated in writing to the other party or in accordance with any appointment of Agent for Service form attached hereto. The parties hereby contract out of any statutory or legislative requirements (including Rules of Court, treaties etc) to provide versions of any documents, translated in a language other than English. Any requirements to translate foreign documents into English remain valid. Any originating process shall be deemed duly served five calendar days after despatch by post or courier to the Lessee’s address for service, or in the case of service by facsimile or email on the day following the day of completion of transmission.

11. Default

Each of the following events shall constitute a “Default”:

  1. (i)  failure of the Lessee to pay any sum due hereunder when that sum becomes due;
  2. (ii)  failure of the Lessee to observe or perform any other obligation(s) hereunder or to observe or perform any payment, warranty, guarantee or other obligation whatsoever under any other lease or agreement between the Lessee and Company or any of its subsidiaries and affiliated entities;
  3. (iii)  the Lessee shall be dissolved or liquidated or cease doing business as a going concern, become insolvent, become the subject of any proceeding under any bankruptcy code or any similar law of any relevant nation, make an assignment for the benefit of creditors, admit in writing its inability to pay its debts as they become due, or a receiver, trustee or liquidator is appointed for the Lessee or for any part of the Lessee’s assets;
  4. (iv)  the sale, transfer or disposal by the Lessee of substantially all of its assets, or the merger or consolidation of the Lessee with any other entity, or the acquisition by any person or group of persons acting in concert of direct or indirect ownership or control of 50% or more interest in, or voting rights conferred by, the share capital of the Lessee;
  5. (v)  the Lessee or any material portion of its assets shall be seized or nationalised by any governmental entity;
  6. (vi)  Company becomes aware of any fact which causes it reasonably to consider that the Lessee will be unable to pay any sum when due and/or to observe or perform any other obligation(s) under the Lease;
  7. (vii)  the occurrence of any of the events in sub-paragraphs (iii) to (vi) above in relation to any guarantor of the Lessee’s obligations under the Lease or any other lease or agreement between the Lessee and Company or any of its subsidiaries and affiliated entities.

 

12. Remedies

If a Default occurs, Company may, in its sole discretion, exercise any one or more of the following remedies without notice to or demand upon the Lessee:

  1. (i)  declare the Lease in default;
  2. (ii)  without releasing the Lessee from any obligations, terminate the Lease in whole or in part;
  3. (iii)  demand and recover immediate payment from the Lessee of any amounts due under the Lease along with the entire unpaid balance of the rent for the remaining minimum term of the Lease and/or any rent reasonably assessed by Company to be due in the future;
  4. (iv)  take possession of any ISO Tank Container without demand or notice or any court order or legal process, and free of any claims of the Lessee;
  5. (v)  notify the Lessee that in its sole discretion Company considers any one or more ISO Tank Container(s) to be lost and the Lessee shall immediately pay the replacement value specified in the Lease of such ISO Tank Container(s);
  6. (vi)  inspect the books and records of the Lessee; and
  7. (vii)  exercise any remedy available under the applicable law.

Upon termination of the Lease following a Default, the Lessee shall immediately provide to Company a detailed listing of Company’s ISO Tank Containers by location and shall return the ISO Tank Containers at its own expense to Company as Company shall direct. If the Lessee fails promptly to return the ISO Tank Containers, but in any event not later than 30 calendar days after Company provides such directions to the Lessee, the Lessee shall pay to Company the replacement value specified in the Lease of such ISO Tank Containers. The Lessee shall continue to pay rent for the ISO Tank Containers until the earlier of the date when (a) the ISO Tank Containers are returned, or (b) the replacement value and other sums due under the Lease are paid. The Lessee shall also be obliged to pay to Company a dislocation charge of $750 per 20ft ISO Tank Container and $ 1,500 per 40ft ISO Tank Container to compensate Company for lost rent and administrative costs arising from the default. If Company retakes possession of any ISO Tank Container, Company is authorised to take possession of any property in, on or attached to such ISO Tank Container that is not Company’s, without liability for its care or safekeeping, to be placed in storage at the Lessee’s risk and expense. Termination of the Lease shall not relieve the Lessee of any obligations hereunder and the Lessee shall remain liable for damages and for all costs incurred on account of the Default, including reasonable legal fees and expenses. These remedies are cumulative and are in addition to any other remedies of Company. No delay or failure by Company to exercise any right or remedy shall impair such right or remedy, or be construed as a waiver of or acquiescence in any later Default.

13. Assignment

Company may grant a security interest in the Lease or the ISO Tank Containers and may assign all or part of its rights, title or interest, including all or part of the rent due or to become due. The Lessee shall not assign, encumber or sublease any of the ISO Tank Containers or its rights or interests under the Lease nor permit any lien, encumbrance or security interest to exist against any of the ISO Tank Containers without Company’s prior written consent.

14. Personal Property Securities Act

  1. (i)  All terms capitalised in this clause that are not defined in these GLT take their meaning as defined in the Personal Property Securities Act 2009 (PPSA).
  2. (ii)  This Lease (together with the GLT):
    1. constitutes a Security Agreement for the purposes of the PPSA; and
    2. creates a Security Interest in:
      1. any ISO Tank Container previously supplied by Company to the Lessee; and
      2. all future ISO Tank Containers supplied by Company to the Lessee.
  3. (iii)  The Lessee must do all things necessary to assist Company to continuously perfect any Security Interest arising under this Agreement, including signing any documents or

 

providing any information Company reasonably requests for the purposes of protecting

its interest under the PPSA.

  1. (iv)  To the extent that this Lease provides for the creation of a Security Interest in any ISO Tank Container supplied by Company to the Lessee after the date of this Agreement, that Security Interest will constitute a Purchase Money Security Interest (PMSI).
  2. (v)  The PMSI will continue to apply, so far as the PPSA permits, to any Proceeds from the disposal of the ISO Tank Container.
  3. (vi)  Until title passes from Company to the Lessee under this Agreement, the Lessee will not or will not permit any Security Interest (other than the Security Interest provided for under this clause) to be created in the ISO Tank Container without Company’s written consent.
  4. (vii)  The Lessee must not lodge or permit the lodgement of a Financing Change Statement or an Amendment Demand in respect of the ISO Tank Container without Company’s consent.
  5. (viii)  The Lessee must immediately notify Company in writing of any change in the Lessee’s name or other identifying characteristics of the Lessee or the ISO Tank Container in which Company holds any Security Interest.
  6. (ix)  To the maximum extent permitted by the PPSA:
    1. The Lessee agrees that Company is not obliged to provide any notice to the Lessee under sections 95, 118, 121(4), 130, 132 or 135 of the PPSA
    2. no person can redeem the Security Interest in the ISO Tank Container under section 142 of the PPSA without Company’s consent;
    3. no person may reinstate the Security Agreement under section 143 of the PPSA without Company’s consent; and
    4. the Lessee acknowledges that the ISO Tank Container is commercial property and waives its right to receive copies of any financing statement, financing change statement or verification statement from Company.
  7. (x)  For the purposes of section 275(6) of the PPSA, the Lessee must keep confidential any information relating to this Agreement which is in the nature of information which an interested person could access under section 275(1) of the PPSA.

15. Miscellaneous

  1. (i)  If any of the provisions of the Lease shall be declared invalid or unenforceable all other provisions shall remain in full force and effect. The terms set out herein or in the Lease constitute the entire Agreement and cannot be changed or terminated orally.
  2. (ii)  Except where indicated otherwise, the term “Lease” shall be deemed to include these GLT.
  3. (iii)  All ISO Tank Containers are leased as is. No condition or warranty has been or is given by Company in relation to any ISO Tank Container, its description, quality or fitness for any particular purpose and all conditions and warranties in relation thereto whether express or implied, arising under statute or at common law, collateral thereto or otherwise, are hereby excluded. Company shall not be liable for any indirect, special, or Consequential Loss or damage (whether for loss of profit or otherwise), costs, expenses or other claim for compensation whatsoever which arise out of or in connection with the leasing of the ISO Tank Containers or their use by the lessee.
  4. (iv)  Notice in writing of any claim together with all supporting documentation shall be presented to Company within 90 days of a claim arising, failing which such claim shall be deemed waived and absolutely barred.

16. Waiver

  1. (i)  Failure to exercise or enforce or a delay in exercising or enforcing or the partial exercise or enforcement of any right, power or remedy provided by law or under these Conditions by any party will not in any way preclude, or operate as a waiver of, any exercise or enforcement, or further exercise or enforcement of that or any other right, power or remedy provided by law or under these Conditions.
  2. (ii)  Any waiver or consent given by any party under these Conditions will only be effective and binding on that party if it is given or confirmed in writing by that party.
  3. (iii)  No waiver of a breach of any term of these Conditions will operate as a waiver of another breach of that term or of a breach of any other term of these Conditions.