Terms and Conditions

STANDARD TERMS AND CONDITIONS FOR EQUIPMENT LEASING AGREEMENT

 

1.       INTERPRETATION

 

In construction of the terms and conditions of this Agreement (unless the context otherwise requires):

(a)  “Agreed Purchase Price” means the amount (excluding GST) payable to BCFE by the lessee to purchase the Equipment from BCFE, which will be as specified in the Agreement’s Schedule hereto with reference to specific timing, or if not specified in the Agreement’s Schedule, then as set by BCFE from time to time in its absolute discretion;

(b)  “Agreement” means the leasing agreement between BCFE and the Lessee, and the Guarantor (if any) in relation to the Lease;

(c)  “BCFE” means Bakers and Chefs Food Equipment Pte Ltd, a company incorporated in the republic of Singapore, with its registered address at 469 Macpherson Road #01-01 Singapore 368186;

(d)  “Authorised Signatory” means each and any person who is authorised by the Lessee to act on behalf to commit to binding agreements;

(e)   “Date of Agreement” means the date on which the Equipment Leasing Agreement was executed;

(f)   “Delivery Date” means date of delivery of Equipment as specified in the Delivery Order;

(g)  “Advance Rent” means Rent paid in advance;

(h)  “Equipment” means the equipment listed in the Agreement’s Schedule hereto;

(i)   “GST” means Goods and Services Tax;

(j)   “Guaranteed Obligations” means the performance and observance by the Lessee and/or the Guarantor of all the terms and conditions on the part of the Lessee under the Agreement

(k)  “Guarantor” means each and any person signing the Personal Guarantee Agreement who will jointly and severally guarantee that all obligations in the Agreement are performed and met accordingly;

(l)   “Installation Site” means the premise in which the Equipment is to be installed as specified in the Agreement’s Schedule or such other premise as approved by BCFE in writing from time to time;

(m)       “Interest Rate” means the interest charges on all overdue payments, including but not limited to Rent, liquidated damages and all payments due from the Lessee to BCFE;

(n)  “Lease” means the leasing of the Equipment by the Lessee from BCFE under the Agreement;

(o)  “Lease Commencement Date” means the date of delivery of the Equipment as specified in the Schedule;

(p)  “Lease Expiration Date” means 52 weeks from the Lease Commencement Date;

(q)  “Lessee” means the party renting the equipment as specified in the Agreement hereto, and its representatives, agents and employees;

(r)   “Parties” means BCFE and the Lessee and the Guarantors (if any)

(s)  “Post-Term Weekly Lease” means the continual lease of the Equipment upon the completion of the Term of the Agreement;

(t)   “Recovery Value” means the amount (excluding GST) payable to BCFE by the Lessee to reimburse BCFE for its loss of the Equipment, which will be the Written Down Value of the Equipment at the material time, as evidenced from a statement in writing issued by BCFE and signed by an authorised officer of BCFE, and such a statement will be conclusive evidence of the Written Down Value at the material time and of all matters set out in the statement;

(u)  “Rent” means the amount of rent payable by the Lessee;

(v)  “Schedule” means the Schedule contained in the Agreement;

(w) “Security Bond” means the security bond amount specified in the Agreement’s Schedule or such other amount as varied by BCFE from time to time pursuant to clause 3;

(x)  “Standard Payment Day” means the day of the week that the Lease Commencement Date fell on as specified in the Agreement’s Schedule;

(y)  “Term” means the period from the Lease Commencement Date until the Lease Expiration Date;

(z)   “Weekly Rent” means the amount of the total weekly rent specified in the Agreement’s Schedule;

(aa)     “Written Down Value” means the amount representing the Agreed Purchase Price (excluding GST) less depreciation at the depreciation rate determined by BCFE at its sole discretion, within the boundaries of Inland Revenue Authority of Singapore.

 

These standard terms and conditions of Equipment Leasing Agreement (“Terms”) stated here below, together with the Agreement, constitute an agreement between BCFE and the Lessee:

 

1.       SUBJECT


The subject of an Equipment Leasing Agreement concluded pursuant to these Standard Terms is to define the conditions according to which BCFE (BCFE) will convey to the Lessee the right to use the Equipment, specified in the Agreement, in Singapore, whereby the Equipment will remain BCFE’s property. In return for payment of the Weekly Rent, the Customer is entitled and obligated to use the Equipment according to the terms herein.

 

2.      AGREEMENT

 

The Agreement shall be effective for the Equipment from the Date of Agreement (the “Agreement”) and shall remain in full force and effect. BCFE may from time to time nominate or the Lessee has confirmed in writing before the expiration of the period of lease that it intends to continue its lease, the Customer is deemed to continue this Agreement which shall be governed by all the terms and conditions herein stated with the exception of Weekly Rental rates, until it is terminated by mutual agreement.

 

The Agreement including its attachments, schedules and these Standard Terms supersedes any and all other agreements, whether written or verbally entered into between the Parties. The provisions of the Agreement may not be amended or otherwise modified excepted by written agreement signed by an authorised representative of each Party.

 

3.      REPRESENTATION ON AUTHORITY OF PARTIES/SIGNATORIES

 

Each person signing the Agreement is an Authorised Signatory who represents and warrants to BCFE that the execution and delivery of the agreement and the performance of such Party obligations hereunder have been duly authorised and that the Agreement is a valid and legal agreement binding on such party and enforceable in accordance with its terms.

 

4.      LEASE

 

The Lessee shall pay Rent to BCFE during the Term in advance by weekly payments of the Weekly Rent and, except where otherwise agreed between the parties, the Lessee agrees to pay the Rent in the following manner:

(i) the first four weekly payments of the Weekly Rent is to be made on the Lease Commencement Date (and BCFE is expressly authorised to apply the Security Bond paid by the Lessee pursuant to clause 6 towards this payment);

(ii)  all remaining weekly payments of the Weekly Rent are to be made in advance on the Standard Payment Day of each week for the remainder of the Term; and,

a.      except if the Lessee pays BCFE the Agreed Purchase Price to purchase the Equipment from BCFE before the Lease Expiration Date pursuant to the Agreement, the Lessee is obliged to pay the Rent to BCFE for the Term up to the Lease Expiration Date (whether by weekly payments in advance or otherwise as agreed by  the  parties) even if the Lessee returns the Equipment to BCFE before the Lease Expiration Date or if the Equipment is damaged beyond repair, lost or stolen, it being the intention of the parties that (unless the Lessee purchases the Equipment before the Lease Expiration Date pursuant to the Agreement):

(i)  the Term is the minimum term of the Lease; and

(ii)  the total amount of Rent payable during the Term by weekly payments of the Weekly Rent is the minimum amount of rent payable by the Lessee to BCFE for the Lease.

(1)   The Lessee shall during the Term punctually pay to BCFE without demand free of any deductions whatsoever the periodic rent set out in the Schedule hereto which shall be payable in advance unless otherwise stipulated.

(2)  All payments of Rent shall be made to BCFE. The time of payment shall be essence of the Agreement.

Nothing shall be taken to prevent the accrual of rent during the period of Lease or any renewal or extension thereof.

 

5.      TERM

 

The Term for each Agreement begins on the Lease Commencement Date and ends on the Lease Expiration Date. The Term constitutes the minimum Term and is for a period of 52 weeks from the Least Commencement Date. The Term is not cancellable and may not be terminated except as stated in the Agreement.

 

6.      SECURITY BOND

 

The Lessee shall pay to BCFE a Security Bond as security for the performance of the Lessee’s obligations under the Agreement (hereinafter called ‘’the Security Bond”).

(1)   The Security Bond shall not bear any interest.

(2)  In the event of any default by the Lessee in the payment of the Lease or (without limitation) the payment of any money or the observance or performance of any other obligation on the part of the Lessee contained or implied in the Agreement, BCFE will be entitled to claim from and apply the whole or a proportionate part of the Security Bond held by it to compensate BCFE for the loss suffered directly or indirectly by BCFE as a result of the default by the Lessee and such claim will not constitute a waiver of any such default by the Lessee.

a.      A claim may include (without limitation):

(i)  the cost of repair of damage to the Equipment;

(ii)  the cost of any necessary replacement of parts of the Equipment;

(iii) the cost of insurance claim policy excesses;

(iv) the cost of cleaning the Equipment;

(v) the amount of the loss of Lease;

(vi) the costs for transport and storage;

(vii)     the costs for arranging the return of the Equipment BCFE; and

(viii)    the amount of any other money payable under the Agreement.

b.    BCFE is entitled to require the Lessee to pay an additional amount BCFE as security for the performance of the Lessee’s obligations under the Agreement in order to cover any amount claimed and applied from the Security Bond held by BCFE under sub-clause 6(2a) and to cover any increase in the required amount of the Security Bond pursuant to clause 6. The Lessee must pay the additional amount so required within fourteen (14) days of any request as an essential term of this Agreement.

d.      If after the end of Lease (and any holding over period), all obligations of the Lessee under the Agreement in respect of the Lease are discharged and satisfied, BCFE must return the Security Bond held by BCFE to the Lessee or at the Lessee’s direction (to the extent not resorted to).

e.      Upon the expiration the Agreement or any extension or renewal thereof, provided the Lessee has observed and performed all the obligations on part of the Lessee hereunder and has discharged all the Lessee’s liabilities to BCFE, BCFE shall refund any then remaining balance of the deposit (without interest) to the Lessee.

      

7.      TAXES

 

The Lessee is liable up to the full amount of the Goods and Services Tax (GST).

 

8.      INTEREST ON OVERDUE PAYMENTS & OTHER CHARGES

 

Without prejudice to any other rights which the BCFE may have hereunder:

(1)   The Lessee shall pay on all overdue Rent or other charges interests at the rate of 1.5% per month, calculated on a daily basis from the respective due dates until full payment is received.

(2)  BCFE reserves its rights to apply any monies received from the Lessee firstly towards the satisfaction of such interest.

 

9.      DEFAULT

 

a.      If the Lessee is in default of any of its obligations under the Agreement, BCFE may rectify that default. All fees, charges, costs and expenses incurred by BCFE in rectifying the default will be a liquidated debt payable by the Lessee to BCFE on demand.

b.      The termination of the Lease (or any Post-Term Weekly Rent) or the expiration of the Term shall not prejudice or affect any rights or remedies of BCFE against the Lessee on account of any antecedent breach by the Lessee of any of the terms and conditions on the part of the Lessee under the Agreement

c.      Each of the following is an event of default (“Event of Default”), namely, if:

       (i)            any money payable to BCFE pursuant to the Agreement is not paid by seven (7) clear days after the due date for payment;

       (ii)            the Lessee has failed to punctually perform or observe any of the terms and conditions on the part of the Lessee under the Agreement and such failure has remained unremedied for a period of seven (7) clear days after notice in writing is served upon the Lessee by BCFE specifying the default;

       (iii) BCFE ascertains that the Lessee has made any false, inaccurate or misleading statement having a material effect in relation to the making of the Agreement or any related or collateral document;

`      (iv)           in the opinion of BCFE, there is a material adverse change in the financial condition of the Lessee;

       (v) the Lessee, being a natural person, dies, commits any act of bankruptcy or is convicted upon indictment of a criminal offence or sentenced to a term of imprisonment;

       (vi)           execution is levied by any court against the Lessee and such execution is not satisfied within fourteen (14) days;

       vii)            where the Lessee is a company:

1.     a resolution for its winding up is passed or any order by any court is made for its winding up or a controller, provisional liquidator, receiver or receiver and manager or voluntary administrator is appointed in respect of the Lessee or in respect of the whole or any part of its assets;

2.    any director of the Lessee is convicted upon indictment of a criminal offence or sentenced to a term of imprisonment;

(1)      is unable to pay its debts when they are due;

(2)     commits an act of bankruptcy or is convicted upon indictment of a criminal offence or sentenced to a term of imprisonment;

(3)      dies; or

(4)      if a company, is in the process of winding up or liquidation.

d.      Upon the occurrence of any one or more of the events described in sub-clause 9(c) BCFE may (at its option) by notice in writing to the Lessee terminate the Lease and immediately recover possession of the Equipment.

e.      Upon termination of the Lease, BCFE is entitled to recover as liquidated and ascertained damages an amount equal to all the fees, charges, costs and expenses incurred by BCFE, including legal fees on a full indemnity (solicitor and own client) basis, in enforcing the terms of the Agreement in respect of the Lease facility.

f.       Upon termination of the Lease, BCFE is entitled to recover as liquidated and ascertained damages an amount equal to the sum of the following:

(i)  any amount of money due and owing to BCFE pursuant to the Agreement as at the date of termination but unpaid by the Lessee;

(ii)  interest on such unpaid amounts at the interest rate as per Schedule hereto

(iii) the  balance  of Rent  payable  for the  Term  from  the  date  of termination  to  the Lease Expiration Date; and

(iv) all fees, charges, costs and expenses incurred by BCFE, including legal fees on a full indemnity (solicitor and own client) basis, in:

 i.       obtaining or attempting to obtain payment of such unpaid amounts;

ii.       otherwise enforcing the terms of the Agreement;

iii.       recovering or attempting to recover possession of the Equipment; and

 

10.     TERMINATION OF THE LEASE AND POST-TERM WEEKLY RENTAL

 

a.      At any time during the Term, the Lessee may terminate the Lease by giving to BCFE four (4) weeks’ prior written notice (effective from the Standard Payment Day next falling after the notice is given) of its intention to do so and upon BCFE accepting the termination. BCFE will accept the termination of the Lease when the Lessee has:

(i)  paid the full amount of the Rent payable for the Term up to the Lease Expiration Date  (which must be paid off in one lump sum before the Lease Expiration Date); and

(ii)  paid all other amounts payable (including but not limited to cleaning fees, repair fees etc) under the Agreement in respect of the Lease.

b.      At any time during the Post-Term Weekly Rental, the Lessee may terminate the Post-Term Weekly Rental by giving to BCFE four (4) weeks’ prior written notice (effective from the Standard Payment Day next falling after the notice is given) of its intention to do so and upon BCFE accepting the termination. BCFE will accept the termination of the Post-Term Weekly Rental when the Lessee has:

(i)       paid the full amount of the Rent payable for the duration of the Post-Term Weekly Rental; and

(ii)  paid all other amounts payable under the Agreement in respect of the Post-Term Weekly Rental.

c.    In the event BCFE inspects and deems an Equipment under the Agreement to be beyond economical repair, BCFE reserves the right to terminate the Lease of the Equipment before the Lease Expiration Date without notice or to replace it with a similar Equipment without affecting the original terms of the Agreement. BCFE shall not be liable for any fees, charges, costs, expenses or damages incurred by the Lessee as a result of the termination or replacement.

d.    At any time during the Post-Term Weekly Rental, BCFE may terminate the Post-Term Weekly Rental by giving to the Lessee four (4) weeks’ prior written notice (effective from the Common Payment Day next falling after the notice is given).

 

11.      END OF LEASE

 

a.      In the Agreement, the “End of Lease” means the earliest to occur of:

(i)  the termination of the Lease before the Lease Expiration Date; or

(ii)  the Lease Expiration Date

(iii) the termination of the Lease after the minimum Term

b.      Upon the date of the End of Lease, the Lessee must return the Equipment to BCFE by:

(i)  delivering the Equipment to BCFE in the manner and to the place directed or agreed by BCFE; or

(ii)  instead of complying with sub-clause 11(b)(i):

 i.        doing all things necessary to facilitate the collection of the Equipment by BCFE at the reasonable time required by BCFE; and

ii.       paying to BCFE an amount advised by BCFE at the relevant time to reimburse it for the collection costs.

c.      When the Equipment is due to be returned to BCFE pursuant to the Agreement (including by recovery of possession in the event of termination after default), the Equipment must be returned to BCFE free from damage and deficiencies with all accessories and services complete and functioning properly; all labels and signs (other than those applied by the manufacturer or BCFE or those required by law) must be removed and the affected area made good; and the Equipment must be capable of being immediately operated by a third party without any repair or replacement required.

d.      If the Lessee returns the Equipment in a state that is not consistent with the obligations under sub-clause 11(c), BCFE may undertake the work necessary to bring the Equipment to the required state and all fees, charges, costs and expenses incurred by BCFE in undertaking the necessary cleaning and repair of the Equipment will be a liquidated debt payable on demand by the Lessee to BCFE.

e.      The Lessee may elect to return the Equipment in a state that is not consistent with the obligations under sub-clause 11(c) for the purpose of BCFE undertaking the work necessary to bring the Equipment to the required state at the Lessee’s cost PROVIDED THAT the Lessee must first pay to BCFE upon demand an amount advised by BCFE at the relevant time to reimburse it for the fees, charges, costs and expenses of BCFE undertaking the necessary cleaning and repair of the Equipment.

f.       If the Equipment is damaged beyond repair at any time so that in BCFE’s reasonable opinion the Lessee cannot comply with sub-clause 11(c) and BCFE cannot rectify that default, then at the time the damage occurs the Lessee must pay to BCFE the Recovery Value of the Equipment to reimburse BCFE for its loss of the Equipment by way of liquidated damages and not as a penalty and in addition to any liquidated claim made by BCFE. To remove doubt, the Lessee will continue to be responsible for the payment of the Rent for the Term up to the Lease Expiration Date (even if the Equipment is damaged beyond repair before the Lease Expiration Date).

g.      If the Equipment is lost or stolen at any time so that the Lessee cannot return it to BCFE when it is due to be returned, then at the time the theft occurs the Lessee must pay to BCFE the Recovery Value of the Equipment to reimburse BCFE for its loss of the Equipment by way of liquidated damages and not as a penalty and in addition to any liquidated claim made by BCFE. To remove doubt, the Lessee will continue to be responsible for the payment of the Rent for the Term up to the Lease Expiration Date (even if the Equipment is  lost or stolen before the Lease Expiration Date).

h.      If the Lessee does not return the Equipment to BCFE upon the date of the End of Lease (where sub-clauses 11(f) and (g) do not apply), then BCFE may deem that the Lessee is holding over and if so, the Lessee must continue to pay rent weekly to BCFE in the amount of the Weekly Rent and to be bound by the terms and conditions of the Agreement applicable to the Equipment Leasing (with necessary changes to apply to a holding over basis) until either the Equipment is returned to BCFE or BCFE receives payment of the Recovery Value of the Equipment to reimburse BCFE for its loss of the Equipment by way of liquidated damages and not as a penalty.

 

12.     OFFER TO PURCHASE

 

The Equipment remains the property of BCFE at all times during the Term and any Post-Term Weekly Rental or holding over period subject to a sale of the Equipment by BCFE.

 

The Lessee may make an offer to purchase the Equipment from BCFE at any time during the Term by paying to BCFE the Agreed Purchase Price of the Equipment.

a.      BCFE may (but is not obligated to) consider the Lessee’s Offer.

b.      BCFE may, in its sole and absolute discretion, accept or decline the Offer. Nothing in the Agreement obliges BCFE to accept the Offer or guarantees BCFE's acceptance of the Offer, nor do the provisions of the Agreement apply to any terms of the Offer (other than those stated in sub-clause 12(c)).

c.      The parties agree that any sale by BCFE and purchase by the Lessee of the Equipment shall include the following terms:

(i)        property in and title to the Equipment shall pass free of any encumbrances to the Lessee upon payment of the Agreed Purchase Price , without the necessity for actual or formal delivery or conveyance of the Equipment;

(ii)      after the Lessee’s payment of the Agreed Purchase Price, BCFE shall notify the Lessee immediately if and once it becomes aware of any reason why property in and title to the Equipment is prevented from passing free of any encumbrances to the Lessee;

(iii)     BCFE makes no warranty regarding the state, condition or location of the Equipment before the sale of the Equipment by BCFE to the Lessee;

(iv)     the Lessee purchases the Equipment on an "as is, where is" basis in whatever state, condition or location it may be at the time of the sale;

(v)      to the fullest extent permitted by law, all guarantees, conditions and warranties which might otherwise be implied into the terms of the sale pursuant to this clause by law are excluded; and

(vi)     if BCFE is not in possession of the Equipment at the time of the sale, BCFE is not obliged to deliver possession to the Lessee and the Lessee must itself obtain possession of the Equipment in the manner determined by the Lessee.

d.      The Lease will terminate upon the Lessee’s payment of the Agreed Purchase Price and the Lessee will not be required to return the Equipment to BCFE.

e.      To remove doubt, the Lessee will:

(i)        be responsible for the payment of the Rent for the Term up to the Lease Expiration Date unless the Lessee purchases the Equipment before the Lease Expiration Date;

(ii)      be responsible for the payment of all other amounts payable by the Lessee under the Agreement during the Term until termination pursuant to this clause.

 

13.   UPGRADE OF EQUIPMENT

 

The Lessee may make an offer to upgrade the Equipment at any time during the Term by giving BCFE four (4) weeks’ prior written notice (effective from the Standard Payment Day next falling after the notice is given) of its intention to do so.

a.      BCFE may (but is not obligated to) consider the Lessee’s Offer.

b.      BCFE may, in its sole and absolute discretion, accept or decline the Offer. Nothing in the Agreement obliges BCFE to accept the Offer or guarantees BCFE's acceptance of the Offer, nor do the provisions of the Agreement apply to any terms of the Offer (other than those stated in sub-clause 12(c)).

c.      The parties agree that any upgrade of the Equipment by the Lessee shall include the following terms:

(i) the Lessee shall pay to BCFE the administrative, collection and delivery costs as a result of the upgrade;

(ii) the parties shall execute a fresh Agreement for the upgraded equipment;

(iii)      the Lessee shall return the Equipment to BCFE in a clean state and good working condition, fair wear and tear excepted.

d.    The Lease will terminate upon return of the Equipment and the delivery of the upgraded equipment.

e.    To remove doubt, the Lessee will:

(i)        be responsible for the payment of the Rent for the Term up to the delivery of the upgraded equipment

(ii)      be responsible for the payment of all other amounts payable by the Lessee under the Agreement during the Term until termination pursuant to this clause.

 

14.    DELIVERY AND INSTALLATION OF EQUIPMENT

 

f.       The Lessee must notify BCFE at least one week in advance of the arranged date of delivery of the Equipment and any changes to that date.

g.      The Lessee must ensure that:

(i)  appropriate electrical outlets, water inlets and outlets are available for the Equipment to be connected to at the Installation Site; and

(ii)  the Installation Site is prepared for the delivery and installation of the Equipment to any standard specified by BCFE or the manufacturer of the Equipment.

h.      BCFE is not responsible for the delay in the installation of Equipment should the Installation Site not be ready upon delivery.

i.        The first Weekly Rent will effect immediately on the Lease Commencement Date regardless of whether the installation of the Equipment has occurred and the subsequent Weekly Rent will occur on Standard Payment Day during the Term.

j.        The Lessee must not relocate the Equipment without first obtaining the written consent of BCFE to the change of the Installation Site and the relocation. The Lessee must arrange for the relocation and re-installation of the Equipment at its own cost and take all steps to ensure the Equipment is not damaged as a result of the relocation and re-installation. The Weekly Rent is in no way affected by the relocation of the Equipment pursuant to this clause.

 

15.    EQUIPMENT AS A FIXTURE TO LAND

 

k.       The Lessee must not at any time attach, affix or secure the Equipment upon or to any land except as provided for in this clause.

l.        The Lessee must not at any time attach, affix or secure the Equipment upon or to the Installation Site unless its use so requires and the prior written consent of BCFE has been obtained. Without limiting the generality of this sub-clause, it is agreed as follows:

(i)  if the Installation Site is owned by the Lessee, the Equipment is deemed not to be a fixture   and in those circumstances:

 i.       the Equipment may be removed by BCFE at any time in accordance with the Agreement;

ii.       BCFE will be entitled to enter upon the Installation Site at any time for the purpose of inspecting and/or removing the Equipment and will not be liable in respect of loss or damage arising from such entry or from the removal of the Equipment; and

iii.       if the Installation Site is to become the subject of a mortgage or charge then, before the Lessee gives the mortgage or charge, the Lessee must, without any request from BCFE, obtain the written acknowledgement of the proposed mortgagee or chargee (as the case may be) that:

1.       the Equipment is not a fixture for the purposes of the proposed mortgage or charge;

2.      the mortgagee or chargee will not make any claim in relation to the Equipment; and

3.      the mortgagee or chargee will permit BCFE (whether or not there has been any default under the proposed mortgage or charge) to enter upon the Installation Site and to inspect and/or remove the Equipment; and

(ii) if the Installation Site is not owned by the Lessee, prior  to  the  Equipment  becoming  attached, affixed or secured to the Installation Site, the Lessee, if requested by BCFE, must obtain the written acknowledgment of the owner of the Installation Site (and any other persons having an interest in the Installation Site or the building containing the Installation Site) that the Equipment is deemed not to be a fixture and that BCFE has the same rights to the entry of the Installation Site (and if necessary, the building containing the Installation Site) and the inspection and/or removal of the Equipment at any time. As between BCFE and the Lessee, BCFE will have the same rights of entry and inspection and/or removal as set out in clause 9.

 

16.   CONDITIONS PRECEDENT TO BCFE’S OBLIGATION TO LEASE EQUIPMENT

 

m.    BCFE’s obligation to lease the Equipment to the Lessee is subject to and conditional upon:

(i)  the Lessee’s execution of the Agreement; and

(ii)  the Lessee having paid to BCFE the Security Bond; and

(iii)           the Lessee having paid to BCFE the Deposit; and

(iv) the Lessee having fulfilled all obligations as per the terms herein.

 

17.    CUSTODY AND USE OF THE  EQUIPMENT

 

n.      The Lessee acknowledges and agrees that it does not have any title, right, property or interest in the Equipment other than as a bailee, except as provided in the Agreement.

o.      The Lessee agrees:

(i)            to keep the Equipment under its personal control during the Term (and any Post-Term Weekly Rental or holding over);

(ii)  not to (or attempt to):

 i.       sell;

ii.       dispose of;

iii.       encumber;

iv.       lend;

v.       let or sub-let;

vi.       assign;

vii.       pledge;

viii.       mortgage;

ix.       on-hire;

x.       conceal; or

xi.       part with possession or control of,

the Equipment or otherwise deal with the Equipment in any way that would adversely affect BCFE’s ownership of the Equipment or BCFE's interests in the Agreement, without BCFE's prior written consent given pursuant to the Agreement;

(iii)           not to remove the Equipment from the Installation Site without the prior written consent of BCFE;

(iv)          not to alter the Equipment or alter or deface any identifying number, name or mark on the Equipment;

(v) to comply with all statutory, governmental and other legal requirements (including  workplace health and safety and environmental legislation) in relation to the operation of the Equipment, including relating to (without limitation):

(1)        the Equipment itself;

(2)        the possession and use of the Equipment;

(3)        the Installation Site; and

(4)        the occupation and use of the Installation Site, particularly in relation to the use of the Equipment at the Installation Site; and

(vi)          to protect the Equipment from any distress, execution or seizure and shall indemnify BCFE against all losses, costs, charges, damages and expenses incurred by BCFE as a result of the Lessee’s failure to do so.

p.      The Lessee undertakes:

(i)  to maintain the Equipment as per clause 18a.

(ii)    to use and operate the Equipment in a proper and prudent manner and ensure that only duly qualified competent agents, servants and employees are allowed to use and operate the Equipment;

(iii)    not to use or operate the Equipment, or permit the Equipment to be used or operated, for  a purpose that is unlawful;

(iv) to notify BCFE immediately if any person attempts to seize the Equipment;

(v) to make the Equipment available  for inspections, examination and testing by BCFE  upon reasonable prior written notice by BCFE;

(vi)          to ensure that the Equipment is at all times stored safely and protected from theft, loss or damage (as far as it is practicable);

(vii)         not to cause or do or permit anything which is likely to endanger the safety or condition of the Equipment or which would adversely affect BCFE's interests in the Equipment; and

(viii)         to use its best endeavours to do everything necessary to protect the rights of BCFE in the Equipment.

q.      The Lessee must notify its agents, servants and employees of the Lessee’s obligations and undertakings in the Agreement.

r.       The Lessee will notify any person attempting to seize the Equipment or any part of it of:

(i)  BCFE’s ownership of the Equipment and BCFE’s interest in the Agreement;

(ii)  the extent of the Lessee’s interest in the Equipment; and

(iii)           that the Lessee is obliged to keep the Equipment under its personal control during the Term and that the Lessee is subject to the restrictions in sub-clause 17(b)(i).

s.      The Lessee will, if requested by BCFE, place and keep displayed on the Equipment a notice in plain and legible print that BCFE is the owner of the Equipment and a statement of the restrictions upon the Lessee contained in sub-clause 17(b).

 

18.    MAINTENANCE & REPAIR OF EQUIPMENT

 

t.       Except as otherwise agreed in writing by the Lessee and BCFE, the Lessee will, at its own cost, maintain the Equipment in a clean state and in good working order, except in the case of manufacturing defects, and in particular:

(i)            the Lessee must clean and maintain the Equipment in the same operational condition, functionality and aesthetics conditions as at the Lease Commencement Date, fair wear and tear excepted;

(ii)  the Lessee must only use and operate the Equipment in accordance with:

 i.       the operating manual for the Equipment (which the Lessee will ensure is delivered with the Equipment); and

ii.       any other instructions issued by BCFE from time to time;

(iii)           the Lessee must not misuse or operate the Equipment, or permit the Equipment to be misused or operated, in a manner or for a purpose for which the Equipment was not designed or manufactured;

(iv)          the Lessee must ensure the Equipment is cleaned daily and maintained in accordance with the maintenance instructions provided in any manufacturer’s warranty documentation or otherwise in a manner which does not void any manufacturer’s warranty;

(v) the Lessee must ensure that no components of the Equipment are removed or exchanged except where defective and in the course of usual and proper service or replacement;

(vi) the Lessee must only use genuine parts to maintain the Equipment;

(vii)         the Lessee must not use or operate the Equipment, or permit the Equipment to be used or operated, when such Equipment is out of proper repair;

(viii)         the Lessee must not overload, use or operate the Equipment, or permit the Equipment to be overloaded, used or operated, in a manner which, in the opinion of BCFE, would be likely to endanger the safety or condition

(ix) the  Lessee  must  keep  the  Equipment  in  a  clean  state  so  as  not  to  cause  damage  or disruption to the normal functioning of the Equipment;

(x)  the Lessee must maintain the good overall appearance of the Equipment; and

(xi) the Lessee must ensure that all systems and controls of the Equipment are fully operational;

(xii)          the Lessee must not fit any attachments to the Equipment which are not approved by BCFE.

u.      The Lessee will immediately notify BCFE in writing of any fault, defect, damage or loss suffered by the Equipment as soon as it is detected. The Lessee acknowledges that all repairs arising from accidents, misuse, negligence of the Equipment and power surges at the Installation Site shall be at the Lessee’s cost. The cost of such repairs (which may include travel costs incurred in order for BCFE to carry out the repairs to the Equipment) shall be borne by the Lessee and be payable to BCFE upon demand.

v.      The Lessee shall not in any way or by using any means effect repairs to the Equipment without BCFE's express consent. Should BCFE consent to the Lessee effecting repairs to the Equipment, the Lessee acknowledges that it does not have any authority to pledge BCFE's credit or create any lien over the Equipment in respect of any repair or service costs for any reason and the Lessee agrees to advise any potential repairer of this prohibition.

w.     The Lessee acknowledges that the Weekly Rent is due regardless of the operational condition of the Equipment during the Term as long as the Equipment is commissioned successfully. If the Lessee fails to strictly comply with clause 18(a) then BCFE may (without any obligation to do so) effect repairs made necessary as a result of such failure by the Lessee and  the cost of such repairs (which may include travel costs incurred in order for BCFE to carry out the repairs to the Equipment) shall be borne by the Lessee and be payable to BCFE  upon demand.

 

19.   RESERVATION OF BCFE’S  RIGHTS

 

x.       The Lessee acknowledges and agrees that by executing the Agreement it grants to BCFE (as far as it is able) an irrevocable licence to enter the Installation Site at any time upon reasonable prior written notice by BCFE to the Lessee (which in the case of an emergency, may be little or no notice) in order to gain access to the Equipment for the purposes of, amongst other things:

(i)  locating the Equipment;

(ii)  affixing to the Equipment identifying plates or marks;

(iii) examining and testing the Equipment;

(iv) inspecting the state of repair and operating condition of the Equipment;

(v) repairing and maintaining the Equipment;

(vi) removing or recovering possession of the Equipment; and

(vii)         otherwise exercising BCFE’s rights, powers, privileges and interests or complying with its obligations under the Agreement,

and BCFE shall not be held responsible for any loss or damage occasioned to the Installation Site (or the building containing the Installation Site), the Equipment, or otherwise sustained by the Lessee by virtue of BCFE exercising its rights pursuant to the Agreement.

y.      The Lessee acknowledges and agrees that in the event of default and BCFE taking action to recover possession of the Equipment pursuant to the Agreement, BCFE may, without notice, liability or legal process, enter upon or into the Installation Site (and the building containing the Installation Site) and for that purpose may break open any gate, door or fastening in order to gain entry with the intent of recovering possession of the Equipment.

 

20.   RELIANCE & WARRANTIES

 

z.       The Lessee acknowledges that in deciding to enter into the Agreement:

(i)         it has not relied in any way on BCFE’s skill or judgment (and it agrees that it would be unreasonable for it to rely on the skill or judgment of BCFE to determine whether the Equipment would be reasonably fit for the Lessee’s purposes);

(ii)        it has satisfied itself as to the condition and suitability of the Equipment and its fitness for the Lessee’s purposes; and

aa.   The Lessee warrants and declares that the Equipment to be hired by the Lessee from BCFE is to be hired wholly (or predominantly) for the purpose of a business carried on by the Lessee, and the Rent payable under the Agreement are to be treated by the Lessee as expenses necessarily incurred in the carrying on of that business.

 

21.     RISK AND INSURANCE

 

a.      The Lessee assumes and bears the risk of loss or damage to the Equipment immediately upon delivery of the Equipment. The delivery of the Equipment is completed upon the signing of the Delivery Order by the Lessee’s agents, representatives or employees. If the Equipment is damaged, lost, stolen or not returned to BCFE when required by the Agreement, the Lessee agrees to repair the Equipment at the Lessee’s own cost or pay BCFE the Recovery Value of the equipment and shall continue to pay the Rent on the Equipment in accordance with the Agreement for the Term up to the Lease Expiration Date (and during any Post-Term Weekly Rental or holding over period).

b.      The Lessee agrees and undertakes:

(i) to arrange and maintain in force throughout the Term (and during any Post-Term Weekly Rental or holding over period) an insurance policy or policies covering the Equipment against loss and all other risks against which a prudent owner would insure or as notified  by BCFE, for the full replacement value of the Equipment, and noting BCFE as an interested party (“Lessee’s Insurance Policy”).  Such insurance is to include insurance of the Equipment against:

 i.       damage or destruction caused by accident;

ii.       any insurable risk commonly insured against in regard to equipment of a similar nature; and

iii.       such other insurable risks as BCFE may reasonably stipulate;

(ii)  at BCFE’s request from time to time, to provide BCFE with evidence of the  currency of the Lessee’s Insurance Policy;

(iii)           not to do any act or fail to do any act which would allow the insurer to refuse, settle or compromise any claim on the Lessee’s Insurance Policy in relation to the Equipment without the prior written consent of BCFE; and

(iv)          not to do any act or fail to do any act which may have the effect of voiding the Lessee’s Insurance Policy.

c.      The Lessee’s Insurance Policy must contain an agreement by the insurer to give BCFE written notice of its intention to cancel the policy. The Lessee’s Insurance Policy must  also contain a clause providing that notwithstanding:

(i)            the lapse of the Lessee’s Insurance Policy (except by reason of expiration in accordance with  its terms);

(ii)  any right of cancellation by the insurer; or

(iii) any cancellation by the Lessee (whether voluntary or involuntary),

the Lessee’s Insurance Policy will continue in force for the benefit of BCFE for at least thirty (30) days after written notice of cancellation has been given to BCFE.

d.      The Lessee must not, without the prior written consent of BCFE, permit any reduction in limits or coverage in the Lessee’s Insurance Policy affecting or relating to the Equipment or the Agreement.

 

22.   INDEMNITIES

 

a.      The Lessee agrees to use, operate and possess the Equipment at the Lessee’s risk. The Lessee  agrees that BCFE will have no responsibility or liability for any loss or damage to any property of the Lessee. To the full extent permitted by law the Lessee releases and discharges BCFE and its agents, servants and employees from:

(i)  all claims and demands on BCFE; and

(ii) any loss or damage whatsoever and whenever caused to the Lessee or its agents, servants or employees whether by way of death of, or injury to, any person of any nature or kind, accident or damage to property, delay, financial loss or otherwise, arising directly or indirectly from or incidental to a breakdown of, or defect in, the Equipment  or any accident to or involving the Equipment or its use, operation, repair, maintenance or storage (whether occasioned by the negligence of BCFE or otherwise) or which may otherwise be suffered or sustained in, upon or near the Equipment.

b.      The Lessee assumes liability for, and indemnifies and will keep indemnified, protected, saved and harmless BCFE and its agents, servants and employees from and against any and all injuries, actions, proceedings, claims, demands, liabilities, losses, damages, costs, penalties and all expenses, legal or otherwise (including court costs and legal fees incurred) and of whatsoever kind and nature (including claims based upon strict liability in tort);

(i) arising out of or alleged to arise out of the selection, purchase, delivery, acceptance or rejection, ownership, possession, use (including by reason of the use or incorporation of any invention resulting in infringements of patents), operation, repair, maintenance or storage of the Equipment, and by whomsoever used or operated (except where used by BCFE or any person on behalf of BCFE);or

(ii) incurred by BCFE in respect of any loss of the Equipment  by  seizure,  distress,  execution or other legal process, confiscation or forfeiture of the Equipment; or

(iii)           arising out of any claim for patent, trademark or copyright infringement, for strict   liability, or for any other reason being made against BCFE in connection with the Equipment or its use and operation.

The indemnities and assumptions of liability contained in sub-clauses 21(a) and 21(b) will continue in full force and effect notwithstanding the termination of the Agreement (or termination of the Lease, any Post-Term Weekly Rental or holding over) whether by expiration of time or otherwise, as to any act or omission relating to the Equipment occurring during the continuance of the Agreement which at any time is claimed to have created a cause of action against BCFE or assumption of liability by the Lessee.

 

23.   REASSIGNMENT

 

The Lease is personal to the Lessee and cannot be reassigned by the Lessee.

 

24.  FORCE MAJEURE

 

Neither of the parties hereto shall be liable for the suspension or termination of or the failure to perform its obligation under this Agreement, in the event of wars strikes, riots, lookouts, Acts of God, civil commotion, labour unrest, explosive and any other perils whatsoever, and matters beyond the control of the BCFE.

 

25. LEGAL AND OTHER COSTS

 

The Lessee shall pay to the BCFE all costs and expenses (including legal costs on a full indemnity basis) incurred by or on behalf of the BCFE in ascertaining the whereabouts of the Equipment, taking possession of them by reason of the Lessee’s breach of any of the terms herein and preserving and storing the Equipment thereafter and if any legal proceeding taken by the BCFE to enforce the terms of this Agreement.

 

26.  EXCLUSIONS OF CONDITIONS, WARRANTIES ETC.

 

It is hereby agreed that no condition warranty or stipulation of any kind is given by the BCFE in respect of the Equipment and all conditions warranties and stipulation express or implied statutory or otherwise as to the quality description or otherwise if the Equipment or as to its fitness for any purpose are hereby expressly excluded. BCFE shall not in any event be liable for any loss of any kind whatsoever suffered by the Lessee as a result of the Equipment or pay any part of it being unusable out of order or unserviceable.

 

27.   INDEMNITY AND EXEMPTION OF LIABILITY

 

It is hereby further agreed that the BCFE shall not under any circumstances, directly or indirectly, be liable to make any payment to the Lessee in respect of any breakdown or mechanical failure of the Equipment, or indirect loss (including but not limited to loss of profit, loss of revenue etc) as a result of any breakdown or mechanical failure of the Equipment, loss injury or damage sustained by the Lessee or by any third party as a result of the presence or use of the Equipment or as a result of any defect therein and in taking delivery of the Equipment.

 

28.  INDULGENCE

 

No relaxation, forbearance, delay or indulgence by the BCFE in enforcing any of the terms herein or the the granting of time by the BCFE to the Lessee shall prejudice, affect or restrict the rights and powers of the BCFE hereunder nor shall any waiver by the BCFE of any breach hereof operate as a waiver of any subsequent or any continuing breach hereof.

 

29.  NOTICES

 

a.      Any notices required or permitted to be given shall be deemed validly given, served or notified in this Agreement if served personally or if sent by registered post to the registered address of the Lessee or the BCFE, as the case may be. Any such notice sent by registered post shall be deemed to have been received by the other party within 48 hours after the time of posting.

b.      The Lessee shall promptly notify the BCFE of any change in the Lessee’s registered address and contact particulars and where required by the BCFE, to inform the BCFE of the whereabouts and location of the Equipment.

 

30.  APPLICABLE LAW

 

This Agreement shall be governed by and construed in accordance with the laws of the Republic of Singapore and the parties agree to submit to the jurisdiction of the Courts of the Republic of Singapore

 

31.   NO VARIATION OF TERMS

 

The BCFE shall be bound only by the provision of the Agreement notwithstanding any proposals representations or arrangements that may have been made or suggested either before or at the signing hereof of any person whatsoever or in any advertisement or advertising matter or otherwise  and no variation of the terms or conditions of this Agreement shall be binding on the BCFE unless agreed to by the BCFE in Writing.

 

32.   INTERPRETATIONS

 

In the Agreement unless the context otherwise requires:

(a) The captions to the clauses of this Agreement are for reference only and are not an aid in the interpretation of the provisions of this Agreement.

(b) Words importing the singular number only shall include the plural number and vice versa.

 

33. GUARANTEE

 

a.      This clause applies for all Guarantors executing the Personal Guarantee Agreement

b.      In consideration of BCFE, at the request of the Guarantor, leasing the Equipment to the Lessee upon the terms herein, the Guarantor guarantees to BCFE:

(i)      the due and punctual payment by the Lessee of the Rent in accordance with the terms of the Agreement;

(ii)    the due and punctual payment by the Lessee of every other amount payable by the Lessee under the Agreement; and

(iii)   the performance and observance by the Lessee to perform all Guaranteed Obligations of the Lessee under the Agreement.

c.      The guarantee continue until all the Rent and other amounts payable pursuant to the Agreement have been paid and until all obligations on the part of the Lessee under the Agreement have been performed, observed and satisfied and the guarantee shall not be avoided and the Guarantor shall not be released nor discharged from this guarantee by:

(i)      the granting of any time concession or indulgence by BCFE;

(ii)     the making of any composition with BCFE;

(iii)   BCFE agreeing to or refusing to agree to any consent requested by the Lessee under the Agreement;

(iv)    the avoidance (by statute or for any other reason whatsoever) of any payment due to BCFE by or on behalf of the Lessee;

(v)     any moratorium arising from any statute or order of any court or any other stay or suspension of all or any of the rights and remedies of BCFE;

(vi)     the waiver of any breach or default of the Lessee by BCFE;

(vii)    the  neglect  or  forbearance  of  BCFE to  enforce  the  terms  and  conditions  of this Contract or of this guarantee;

(viii)    the release or discharge by BCFE of any other Guarantor;

(ix)    any assignment of the rights of BCFE under the Agreement; or

(x)    any other fact, matter, act or thing.

d.      In the event that the Agreement becomes unenforceable by BCFE against the Lessee by reason of any legal disability, this guarantee shall be construed as an indemnity and the Guarantor hereby agrees to indemnify and to continue to indemnify BCFE in respect of every failure of the Lessee to pay the Rent and other amounts payable in accordance with the terms and conditions of the Agreement to the intent that the Guarantor shall pay such Rent and other amounts upon demand being made by BCFE and the Guarantor further indemnifies BCFE in respect of every failure of the Lessee to observe and erform all other terms and conditions contained in the Agreement.

e.      The indemnity in sub-clause 32(d) shall extend to all losses, damages, costs (including legal), expenses and all other liabilities which may be incurred by BCFE in connection with any matter contained in the Agreement or by reason of any breach, failure or default by the Lessee in performing or observing all the terms and conditions on the part of the Lessee under the Agreement.

f.       All dividends, compositions and payments received by BCFE from the Lessee or from the Lessee’s estate, whether in bankruptcy, liquidation or otherwise, must be taken and applied by BCFE as payments without there being any deduction in respect of any claim arising under this guarantee. The Guarantor’s right to be subrogated to BCFE in respect of this guarantee does not arise until BCFE has received the full amount of all of BCFE’s claims against the Lessee.

g.      This guarantee is enforceable against the Guarantor notwithstanding that any negotiable or other securities referred to in this guarantee, or to which it extends or is applicable, are outstanding or in circulation at the time of proceedings taken against the Guarantor under this guarantee.

h.      No changes in the constitution of BCFE or the Lessee can impair or discharge the Guarantor’s liability under this guarantee.

i.        In order to give effect to this guarantee, the Guarantor declares that BCFE is at liberty to act as though the Guarantor were the Lessee (within the limits of this guarantee) and the Guarantor waives all and any of its rights as guarantor which may at any time be inconsistent with any of the foregoing provisions regardless of whether any demand, written or otherwise, has been made upon the Lessee to pay the amounts owing under the Agreement. The Guarantor will not be entitled to call upon BCFE to establish that the Lessee is in default under the Agreement and the amounts owing will be payable unless the Guarantor establishes that no default has occurred under the Agreement.

j.        The Lessee and the Guarantor expressly authorise and permit BCFE to obtain as often as BCFE so requires any statement of account and/or payout figure from any mortgagee or security holder to enable the enforcement by BCFE of any order, judgment or right under the Agreement.

k.       This guarantee binds each of the persons executing as a Guarantor in the Personal Guarantee Agreement notwithstanding that one or more of them may not execute or may not be bound by this guarantee or may subsequently execute this guarantee.

l.        This guarantee will continue to be effective or will be reinstated, as the case may be, if at any time the whole or any part of any payment or satisfaction of the whole or any part of any of the Guaranteed Obligations:

(i)     is avoided by the operation of any law; or

(ii)     must be repaid or restored by BCFE or any other recipient of that payment, or beneficiary of that satisfaction, to the Lessee or Guarantor by reason of preference or for  any other reason whatever,

and  that  payment  or satisfaction is  deemed  not  to have  discharged  any of  the  Guaranteed Obligations or part of them, as if that payment or satisfaction had not been made.

 

34.   PRIVACY AND CREDIT INFORMATION

 

m.    The Lessee acknowledges that BCFE may collect, use and disclose ‘personal information’ in accordance with BCFE’s Privacy Policy (as amended from time to time), including by providing personal information to credit reporting agencies. BCFE’s Privacy Policy can be found at http://bakersandchefs.com.sg/PrivacyStatement.

n.      The Lessee and the Guarantor (if any) represent and warrant that all credit and financial information submitted to BCFE prior to entering into the Agreement or at any time during the currency of the Agreement, is and will be true and correct.

o.      The Lessee and the Guarantor (if any) hereby consent and give BCFE the authority to obtain from a credit reporting body a credit report containing personal information about the Lessee or the Guarantor.

p.      The Lessee and the Guarantor (if any) understand that the information obtained pursuant to sub-clause 33(c) may be used for the following purposes:

(i)  to notify other credit providers of the default by the Lessee or the Guarantor;

(ii) to exchange information with other credit providers as to the status of the Agreement where the Lessee or the Guarantor is in default of other agreements of credit providers, provided that the other credit providers have an Singapore link;

(iii) to other persons for the purpose of that person deciding whether to act as guarantor, provided that person has an Singapore link; and

(iv) to assess the Lessee’s or any Guarantor’s creditworthiness.