STANDARD CONDITIONS OF FLEET AGREEMENT (the standard provisions governing Fleet Leasing & Fleet Management Services)

Transcription

1 F0050 (04/12) STANDARD CONDITIONS OF FLEET AGREEMENT (the standard provisions governing Fleet Leasing & Fleet Management Services) REFERENCE NO: SCFA 04/12 ORIX AUSTRALIA CORPORATION LIMITED ABN

2 TABLE OF CONTENTS GENERAL CONDITIONS BACKGROUND DEFINITIONS AND INTERPRETATION Definitions Interpretation Headings Rules of Construction AGREEMENT TO LEASE OR ACQUIRE SERVICES Quotation Quotation and Order Form Acceptance Authority to Complete Forms Cancellation of a Quotation and Order CUSTOMER OBLIGATIONS AND WARRANTIES Customer Obligations Warranties ORIX'S RIGHTS Making Good Default Charge Stamping and Registration Authorisations Delegation of Rights ORIX'S RIGHTS ON DEFAULT Essential Terms ORIX's Rights on Default LIABILITY AND INDEMNITIES Limitation of ORIX's Liability Exclusions Force Majeure DISPUTES Appointment of Independent Expert Dispute Resolution General GST INCREASED COST GUARANTEE AND INDEMNITY Application Unconditional Guarantee Primary Obligation Preservation of Guarantee Payments No Competition No Demand Guarantor Not Trustee Guarantor Trustee No Misrepresentation SUBSIDIARIES AND RELATED CORPORATIONS Nomination Liability PERSONAL PROPERTY SECURITIES ACT Further Acts and Documents Serial Numbered Vehicles Possession of Vehicle Exclusion of PPSA provisions Confidentiality Warranty Proceeds GENERAL No Waiver Certificates Whole Agreement Principal and Agent Governing Law ORIX SCFA 04/12_F0050_

3 14.6 Notices Consents and Approvals Commissions Existing Lease Agreements Assignment in General Payments Electronic Transactions Change in Law or Policy Severability Personal Information Confidential Information FIRST SCHEDULE (LEASE PROVISIONS) DELIVERY Delivery from ORIX Delivery by ORIX Delay in Delivery Acknowledgement of Delivery TERM AND PAYMENT Term Monthly Charge Excess Charge Extension of Lease Term CUSTOMER ACKNOWLEDGMENTS AND WARRANTIES Customer's Warranties and Acknowledgements Lease Vehicle Property of ORIX REGISTRATION AND INSURANCE Registration Insurance Terms of Insurance Insurance Details Insurance Proceeds Loss or Destruction of Lease Vehicle Customer's Risk Indemnity USE, MAINTENANCE, REPAIR AND OTHER CUSTOMER OBLIGATIONS Customer Obligations Accessories and Replacement Parts TERMINATION Delivery of Lease Vehicle Effect of Termination of Lease Expiry of Lease Term of a Finance Lease Early Termination Due to Casualty Event Early Termination of a Lease ASSIGNMENT OF LEASE VEHICLE AGENT FOR SALE SECOND SCHEDULE (FLEET MAINTENANCE AND FLEET MANAGEMENT SERVICES PROVISIONS) FLEET MAINTENANCE FLEET MANAGEMENT A Other Suppliers TERM AND PAYMENT Term Payments Excess Charge Revised Kilometre Limit and Monthly Charge CUSTOMER'S OBLIGATIONS Notification of Theft etc Nominated Vehicle in Good Condition Not Alter Vehicle VARIATIONS TO FLEET SERVICE AND FLEET MANAGEMENT TERMINATION OF FLEET SERVICE AND FLEET MANAGEMENT Termination by ORIX Termination by Customer CANCELLATION OF AUTHORITY THIRD SCHEDULE (ELECTRONIC TRANSACTIONS TERMS AND CONDITIONS) ACCESS TO OLQS AND OCC ORIX SCFA 04/12_F0050_

4 2. SYSTEM ACCESS AND USER ADMINISTRATION USE OF THE SYSTEMS USER IDENTIFICATION AND PASSWORD SECURITY CHANGES EFFECTED VIA CUSTOMER CENTRE OFFERS MADE VIA OLQS OFFERS MADE IN ERROR CUSTOMER'S OBLIGATIONS AND LIABILITIES OUR OBLIGATIONS AND LIABILITIES INCONSISTENCY WITH FLEET AGREEMENT VARIATION APPLICABLE LAW AND SEVERANCE SUSPENSION OR TERMINATION INTELLECTUAL PROPERTY RIGHTS TERMS ANNEXURE A AUTHORISED OFFICER NOTIFICATION FORM ANNEXURE B VEHICLE TRANSACTION FORM ORIX SCFA 04/12_F0050_

5 GENERAL CONDITIONS 1. BACKGROUND The Fleet Agreement comprises these Standard Conditions (including the Schedules and Annexures) and the Fleet Agreement Schedule including the Special Conditions (if any). The Fleet Agreement has effect on the date set out in Item 1 of the Fleet Agreement Schedule. 2. DEFINITIONS AND INTERPRETATION 2.1 Definitions In the Fleet Agreement unless the context otherwise requires "Acknowledgement of Delivery" means an Acknowledgement of Delivery in the form provided by clause 1.4 of the First Schedule. "Agreement" means any agreement constituted by ORIX's acceptance of a Customer's offer in accordance with clause 3.3 of the General Conditions. "Australian Consumer Law" means Schedule 2 to the Competition and Consumer Act 2010 (Cth) and includes any regulations connected or issued in conjunction with that Act and any replacements thereto. "Authorised Officer" means with respect to the Customer - (i) any partner, director, company secretary, chief executive officer or general manager; or (ii) any one of the persons whose name, office and signature appear in Item 5 of the Fleet Agreement Schedule; or (iii) any person or persons from time to time holding or purporting to hold the office of the person or persons listed in Item 5 of the Fleet Agreement Schedule; or (iv) (v) a Fleet Administrator (if one is nominated); or any persons or office that the Customer nominates in writing to ORIX via a completed and executed Authorised Officer Notification Form which nominates further Authorised Officers and/or deletes existing Authorised Officers; and with respect to ORIX, any person who has been authorised by ORIX to execute on behalf of the company the Fleet Agreement or any documentation, notices or certificates with respect to the Fleet Agreement or an Agreement. "Authorised Officer Notification Form" means an Authorised Officer Notification Form in the form of Annexure A or such other form as ORIX may in its discretion permit. Business Day means a day other than a Saturday or Sunday when trading banks are open for business in Sydney and any other place where an action is to take place. Without limiting the generality of the foregoing, Sydney is the place where banking transactions will be effected. "Commencement Date", in relation to a Lease, means in relation to a new vehicle, the date on which the Lease Vehicle is registered; and in relation to a second hand vehicle, the date on which ORIX funds the acquisition of that vehicle. "Commercial Vehicle" means a vehicle constructed or adapted solely or mainly for the carriage of goods; or the carriage of more than 7 passengers; or (c) industrial or agricultural use; and (d) vehicles with a carrying capacity of 750 kg or more. Confidential Information means the terms of the Fleet Agreement, any Agreement, any information, documentation, materials or items designated as confidential by the Customer, a Guarantor or ORIX as well as any information relating to the current or future business affairs of such parties and any intellectual property rights and know how (including in all cases, without limitation, by way of electronic means). Without limiting the generality of the foregoing, it includes all information that the Customer or a Guarantor provides to ORIX or which ORIX becomes aware of or obtains in the course of the Fleet Agreement, any Agreement or a Lease or otherwise through ORIX's relationship with the Customer or a Guarantor that is not publicly available. Corporations Act means the Corporations Act 2001 (Cth). "Customer" means any one or more persons or companies named and described in item 2 of the Fleet Agreement Schedule. "Customer Centre" means the ORIX Customer Centre which is an internet based on-line service that enables the Customer and users nominated by the Customer to access key information, data and reports (including those reports listed in clause 2(c) of the Second Schedule) with respect to Nominated Vehicles. ORIX SCFA 04/12_F0050_

6 "Default Interest Rate" means, in relation to a calendar quarter, the aggregate of 4% per annum plus the rate of interest determined by Westpac Banking Corporation on the first day of that calendar quarter as the rate to apply on that day to overdrafts and term loans, and usually published in major Australian metropolitan newspapers as its Reference Lending Rate ("RLR"). Should such rate cease to be determined or, in the opinion of ORIX such rate becomes inappropriate, unfair or incapable of application, the RLR will mean the rate reasonably determined by ORIX to be the appropriate equivalent rate having regard to prevailing market conditions. "Discount Rate" means, in relation to a Lease Vehicle, the percentage specified in the Quotation and Order Form relating to that Lease Vehicle, of the Return Rate for that Lease Vehicle. The Customer and the Guarantor agree and acknowledge that the Discount Rate is used to produce a reasonable preestimate of the loss of profit and other costs and losses to ORIX as a result of the early termination of a Lease. "Driver" means the driver of the Vehicle nominated by the Customer from time to time. "Electronic Transactions Terms and Conditions" means the Third Schedule to these Standard Conditions as amended from time to time. Equipment means an item of plant machinery or equipment referred to in a Quotation and Order Form, all replacement parts, accessories, equipment, devices or apparatus affixed to or installed or incorporated in such Equipment at any time by any person or any part or parts of any of the foregoing. "E-Tag" means electronic tolling technology used by an E-Tag provider and/or motorway operator. "Essential Term" means any term of an Agreement or the Fleet Agreement relating to the payment of money; care, preservation, maintenance or repair of a Vehicle; (c) insurance of a Vehicle; (d) use, alteration or return of a Vehicle; and (e) creation of, or capability of ORIX to enforce, a Security Interest including, without limitation, clause 13 of the General Conditions. "Event of Default" means any of the following events (c) (d) (e) (f) (g) (h) (Essential Term): the Customer breaches an Essential Term; (Other Terms): the Customer breaches or fails to comply with any obligation under the Fleet Agreement or any Agreement which is not an Essential Term and, if the breach is capable of remedy, fails to remedy that breach or non-compliance, to the satisfaction of ORIX, within 14 days of notice from ORIX requiring it to comply with or remedy the same; (Untrue Representation): any representation, warranty or statement by or on behalf of the Customer or Guarantor is or proves to be untrue or misleading in any material respect when made or repeated; (Insurances Avoided): any insurance proposal made pursuant to an Agreement being declined or any insurance policy effected pursuant to an Agreement being cancelled (otherwise than on the commencement of a replacement policy approved by ORIX) or becoming liable to be cancelled, or any such policy becoming void or voidable at the option of the insurer; (Change in Control): the Customer or its ultimate holding company becomes controlled by another person or there is a substantial change in the management or control of the Customer, where for the purpose of this clause a corporation is controlled by a person or entity holding a relevant interest, as defined in the Corporations Act 2001 of more than 20% of voting shares in that corporation; (Cross Default): If any present or future, actual, prospective or contingent monetary obligation of the Customer in an amount of $100,000 or more (i) in connection with money borrowed or raised by it is not satisfied when due and payable or at the end of its period of grace or becomes prematurely payable by the giving of notice, lapse of time or fulfilment of a condition; or (ii) in connection with any guarantee or indemnity against loss in relation to money borrowed or raised is not discharged at maturity when called; (Cessation of Business): the Customer stops payment, ceases to carry on its business or a material part of it, or threatens to do either of those things except to reconstruct or amalgamate while solvent on terms approved by ORIX such approval not to be unreasonably withheld; (Material Adverse Change) There are any other circumstances including an adverse change to the business assets or financial condition of any Relevant Person or any consolidated group that includes a Relevant Person or an interruption to their business which might in the opinion of ORIX have a Material Adverse Effect; or (i) (Event of Insolvency): an Event of Insolvency occurs. "Event of Insolvency" means in relation to a Relevant Person a receiver, manager, liquidator, provisional liquidator, receiver and manager, trustee, administrator, Controller (as that expression is defined in section 419(1) of the Corporations Act) or similar officer is appointed in respect of any asset of a Relevant Person; (c) any application (not being an application withdrawn or dismissed within 7 days) is made for an order or a meeting is convened, or a resolution is passed, for the purpose of (i) appointing a person referred to in paragraph ; (ii) winding up a Relevant Person; or (iii) proposing or implementing a scheme of arrangement in respect of a Relevant Person; any event or conduct occurs which would enable a court to grant a petition for the bankruptcy of a Relevant Person; ORIX SCFA 04/12_F0050_

7 (d) (e) (f) a moratorium of any debts of a Relevant Person or an arrangement under Part X of the Bankruptcy Act 1966 with a Relevant Person's creditors or any similar proceeding or arrangement by which the assets of a Relevant Person are subjected to the control of a Relevant Person's creditors or a trustee, is ordered, declared, or agreed to, or is applied for; a Relevant Person becomes, is, or is deemed under any applicable law to be, insolvent or unable to pay its debts or any event or circumstance occurs, whether in relation to the business or affairs of the Relevant Person, which in the reasonable opinion of ORIX indicates that the Relevant Person will be unable or unwilling to comply with its obligations under the Fleet Agreement or an Agreement; or any writ of execution, garnishee order, Mareva injunction or similar order, attachment, distress or other process is made, levied or issued against or in relation to any asset of a Relevant Person. "Excess Charge" means the excess kilometre rate or the hourly metre excess charge specified in the Quotation and Order Form (as the context requires). "Fair Wear and Tear" in the case of a Commercial Vehicle or Equipment whose Quotation and Order Form includes a definition of "Fair, Wear and Tear", has the same meaning as set out in that Quotation and Order Form; and in the case of all other Commercial Vehicles, Equipment and other Vehicles, means the deterioration of a Vehicle through general use under the normal conditions for which the Vehicle is designed and having due regard to the conditions in which it is agreed the Vehicle will operate. In either case, fair, wear and tear does not include items caused by driver abuse or neglect. "Finance Lease" means a finance lease provided to the Customer in relation to a Lease Vehicle entered into pursuant to clause 3 of the General Conditions. Fleet Administrator means the person whose name, office and signature appear in Item 6 of the Fleet Agreement Schedule or a person nominated by the Customer in writing to ORIX via a completed and executed Fleet Administrator Notification Form and who is authorised by the Customer to (c) (d) be an Authorised Officer of the Customer; and add or remove Authorised Officers on behalf of the Customer; and nominate subsidiaries or related corporations that may take advantage of the lease facility and other services available under the Fleet Agreement pursuant to clause 12; and if the Customer has been granted access to ORIX s Customer Centre and On-Line Quoting System, to add and/or remove persons (employed by the Customer) permitted to have access to those systems and also set the access rights for these persons. "Fleet Agreement" means the Fleet Agreement referred to in clause 1 of these Standard Conditions. Fleet Agreement Schedule means the document entitled Fleet Agreement Schedule that has been signed by the Customer, ORIX and the Guarantor (if any). "Fleet Elements" means all or any of the fleet elements provided by ORIX which are outlined in clause 2(d) of the Second Schedule. "Fleet Management" means any or all of the services set out in clause 2 of the Second Schedule, including without limitation, any one or more of the Fleet Elements. Fleet Management Agreement means an Agreement for the provision of Fleet Maintenance and/or Fleet Management entered into pursuant to clause 3 of the General Conditions. "Fleet Management Term" means, subject to the terms of an Agreement, the period from the date specified in the Quotation and Order Form as the date on which the Fleet Management services are to commence until the date on which the term specified in the Quotation and Order Form for the provision of such services expires. "Fleet Maintenance" means any or all of the maintenance services set out in clause 1 of the Second Schedule. "Fleet Maintenance Term" means, subject to the terms of an Agreement, the period from the date specified in the Quotation and Order Form as the date on which the Fleet Maintenance services are to commence until the date on which the term specified in the Quotation and Order Form for the provision of such services expires. "Full Maintenance Plan" means the level of service and maintenance specified in clause 1 of the Second Schedule. "General Conditions" means these general conditions excluding the Schedules and Annexures. "Good Condition" means in respect of a Vehicle, that it is fitted with the prescribed number of tyres of the manufacturer's original equipment specification or as specifically requested having tread in a condition identified by law to have "roadworthy tread" and that it is in good condition and appearance throughout and in sound mechanical order, free from all of the following body or coach work damage; paint scratches (other than stone chips or scratches not through to the metal); (c) upholstery or trim damage or tearing; (d) glass damage which might prejudice re-registration or affect roadworthiness of the Vehicle; (e) signwriting or other distinctive markings; (f) major component failure; (g) damage not repaired to a normal commercial standard; and (h) driver abuse and/or neglect, otherwise than arising by reason of Fair Wear and Tear having regard to the distance it has travelled. ORIX SCFA 04/12_F0050_

8 "GST" and "GST Law" have the meanings they are given in A New Tax System (Goods and Services Tax) Act 1999, except that "GST Law" includes any applicable rulings issued by the Commissioner of Taxation. "Guarantee" means the guarantee and indemnity set out in clause 11. "Guarantor" means any one or more persons or companies named and described in item 3 of the Fleet Agreement Schedule. "Hourly Meter Limit" means the permitted hours specified in the Quotation and Order Form. "Kilometre Limit" means the permitted kilometrage specified in the Quotation and Order Form. Law means common law, principles of equity, and laws made by parliament (and laws made by parliament include State, Territory and Commonwealth laws and regulations and other instruments under them, and consolidations, amendments, re-enactments or replacements of any of them); "Lease" means a Finance Lease or an Operating Lease. "Lease Term" means, in relation to a Lease Vehicle, the period from the Commencement Date until the date on which the term specified in the Quotation and Order Form expires. "Lease Vehicle" means a Lease Vehicle referred to in a Quotation and Order Form, all replacement parts, accessories, equipment, devices or apparatus affixed to or installed or incorporated in such vehicle at any time by any person or any part or parts of any of the foregoing. Light Commercial Vehicle means a Commercial Vehicle which has a Gross Vehicle Mass of less than 3,500 kilograms. "Liquidated Amount" means an amount equal to the aggregate of (c) all Monthly Charges and all other moneys due and owing under the Agreement; the present values, as at the date of the early termination of the Lease, of the Monthly Charges (excluding that portion of the Monthly Charges that is attributable to outgoings for maintenance (including tyres) and registration/ctp renewals) not then accrued but which would have thereafter become due if the Lease had not been terminated; all amounts payable pursuant to clause 3.2 of the Second Schedule in respect of payments for services made by ORIX on behalf of the Customer; (d) in relation to (i) an Operating Lease, the present value, as at the date of the early termination of such Lease, of ORIX's estimated fair value of the Lease Vehicle, as determined by ORIX at the date of early termination of the Lease, as it would have been at the expiration of the Lease if the Lease had not been terminated; or (ii) a Finance Lease, the present value, as at the date of the early termination of such Lease, of the Residual Value; (e) an amount equal to the stamp duty (if any) on the amount so payable; and (f) any cost determined by ORIX as being or to be incurred by reason of (i) the liquidation or re-employment of deposits or other funds acquired or contracted for by it to fund or maintain the purchase price of Vehicles, its participation in a Lease or any amount (including loss of margin); or (ii) the termination or reversing of any agreement entered into by ORIX to fix, hedge or limit its effective cost of funding or maintaining the purchase price of the Vehicles, its participation in a lease or any amount. The present values referred to above shall be determined by applying the Discount Rate to each such amount over the period by which the date for payment thereof is brought forward by virtue of the early termination of the Lease. "Location Address" means the address nominated in the Quotation and Order Form for delivery of a Lease Vehicle. "Manufacturers' Scheduled Servicing" means the level of service and maintenance specified in clause 1 of the Second Schedule and the Quotation and Order Form. Material Adverse Effect means a material adverse effect on the business assets or the financial condition of any Relevant Person or any consolidated group that includes a Relevant Person; or the ability of Relevant Persons to meet their payment obligations under the Fleet Agreement and any Agreement. Materials Handling Equipment means a forklift or other equipment of a similar nature used for the purpose of moving and handling goods and materials and includes all replacement parts, accessories, equipment, devices or apparatus affixed to or installed or incorporated in such equipment at any time by any person or any part or parts of any of the foregoing. "Monthly Charge", in relation to a Vehicle, means the monthly charge as set out in the Quotation and Order Form. "Nominated Vehicle" means a vehicle, whether a Lease Vehicle or not, in relation to which ORIX has agreed to supply one or more of the services set out in the Second Schedule. "Obligations" means all the obligations and liabilities of the Customer to ORIX under the Fleet Agreement and any Agreement, whether relating to the payment of money or the performance or omission of any act or thing, including non-liquidated and contingent liabilities. On-Line Quoting System (or OLQS ) means the internet based ORIX On-Line Quoting System which enables the Customer to obtain a Quotation for the lease of a Vehicle and/or the provision of Fleet Maintenance and/or Fleet Management services, and, if acceptable to them, make an offer to ORIX (as contemplated in clause 3.2 of the General Conditions) on-line. "Operating Lease" means an operating lease provided to the Customer in relation to a Lease Vehicle entered into pursuant to clause 3 of the General Conditions. "ORIX" means ORIX Australia Corporation Limited ABN ORIX SCFA 04/12_F0050_

9 "Passenger Vehicle" means a motor vehicle which is specifically designed to carry people and small loads below 750 kg and may include sedans, station wagons (including four wheel drives) and hatchbacks. Personal Information means information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form, electronic form or otherwise, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion. PPSA means the Personal Property Securities Act 2009 (Cth) and includes any regulations connected or issued in conjunction with that Act and any amendments or replacements thereto, from time to time. Privacy Act means the Privacy Act 1988 including any regulations and also any rulings and/or guidelines of the Privacy Commissioner as amended from time to time "Quotation" means a duly completed quotation in the form of a Quotation/Order Form in such form as ORIX may in its discretion permit; and issued by ORIX to the Customer, in accordance with, and pursuant to, the terms and conditions of the Fleet Agreement, which indicates, inter alia, the type of lease and the type of vehicle and/or the services that the Customer has requested that ORIX provide to it. "Quotation and Order Form" means a duly dated and completed Quotation/Order Form in any form as ORIX may in its discretion permit duly executed by the Customer (or an Authorised Officer of the Customer) in relation to the offer to ORIX by the Customer to lease a vehicle, from ORIX; and/or to acquire Fleet Maintenance or Fleet Management services in respect of a vehicle, from ORIX. "Relevant Person" means a reference to each Customer and each Guarantor, severally. "Residual Value" means, in relation to a Lease Vehicle which is the subject of a Finance Lease, the amount shown as the residual value in the Quotation and Order Form. "Return Rate" means, in relation to a Lease Vehicle, the rate (expressed as a rate per cent per annum and calculated on monthly rests) used by ORIX to determine the Monthly Charge (excluding that portion of the Monthly Charge relating to Fleet Maintenance and Fleet Management services). A certificate in writing signed by an officer of ORIX certifying the Return Rate will (in the absence of manifest error) be conclusive evidence of the Return Rate and binding on the Customer and any Guarantor. "Routine Service Obligations" means all service, inspections and maintenance as from time to time specified in the manufacturer's manual. "Security Interest" has the meaning given to that term in the PPSA. "Serial Number" has the meaning given to that term in the PPSA. "Serial Numbered Property" means any personal property which may or must be described by Serial Number in accordance with the regulations for registration in accordance with the PPSA. "Special Conditions" means any special conditions which form part of, or are referred to in, the Fleet Agreement Schedule. "Standard Conditions" means these standard conditions (including the Schedules and Annexures). Taxable Supply has the meaning given to it in the A New Tax System (Goods and Services Tax) Act 1999 (C th). Taxes means any GST, stamp duty, rental duty, fees and other duties and taxes of any nature (but not income tax on ORIX s overall taxable income) payable in connection with the Fleet Agreement, an Agreement, a Lease or the Customer s use of a Vehicle. "Vehicle" means a Lease Vehicle or a Nominated Vehicle and includes a Passenger Vehicle, Commercial Vehicle, Materials Handling Equipment and Equipment. "Vehicle Transaction Form" means a duly completed vehicle transaction form in the form of Annexure B or such form as ORIX may in its discretion permit. 2.2 Interpretation In the Fleet Agreement, unless the context otherwise requires words importing the singular number will include the plural and vice versa; words importing one gender will include the other genders; (c) references to clauses, Schedules and Annexures are references to clauses of and schedules and annexures to the Fleet Agreement (including these Standard Conditions); (d) references to any document (including the Fleet Agreement, any Agreement, Lease, any Schedule and any Annexure) include references to such document as amended, novated, supplemented, varied or replaced from time to time; (e) references to any party include its successors and permitted assigns and, where appropriate, its servants or agents (and, in the case of ORIX, its principals (whether disclosed or undisclosed)); (f) "person" includes a body corporate, firm, unincorporated association, partnership (whether incorporated or not), joint venture, governmental, semi-governmental or statutory body or any other entity, whether having a separate legal existence or not; (g) a reference to a statute or statutory provision will include a reference to a statute or statutory provision replacing, amending or consolidating the first mentioned statutory provision, as the case will require; (h) where two or more persons are liable under a provision of the Fleet Agreement, or an Agreement whether as Customer or Guarantor, that provision binds those persons jointly and severally. Accordingly ORIX SCFA 04/12_F0050_

10 (i) (i) the liabilities of the Customer are the joint and several liabilities of the persons comprising the Customer, and the expression the "Customer" means each or any one or more of those persons; and (ii) the liabilities of the Guarantor are the joint and several liabilities of the persons comprising the Guarantor, and the expression the "Guarantor" means each or any one or more of those persons; and "includes" in any form is not a word of limitation. 2.3 Headings Headings are for reference purposes only, do not form a part of the Fleet Agreement and shall not be taken into account in the construction or interpretation of the Fleet Agreement. 2.4 Rules of Construction In the interpretation of the Fleet Agreement, no rule of construction applies to the disadvantage of ORIX on the basis that it put forward the Fleet Agreement or any part of it. 3. AGREEMENT TO LEASE OR ACQUIRE SERVICES 3.1 Quotation If from time to time the Customer desires to lease a vehicle from ORIX; and/or ORIX to supply services pursuant to Fleet Maintenance or Fleet Management in relation to a vehicle, the Customer or an Authorised Officer of the Customer will request ORIX to provide a Quotation in relation to such a lease and/or services (as the case may be). ORIX may, if requested by the Customer, deliver to the Customer a Quotation. The Quotation does not constitute an offer by ORIX to the Customer to lease a vehicle and/or provide services and ORIX may, therefore, add to, revoke, amend, change or vary a Quotation at any time prior to its acceptance of the offer from the Customer to lease the vehicle and/or acquire the services the subject of that Quotation. 3.2 Quotation and Order Form If the Customer desires to lease a vehicle from ORIX; and/or ORIX to supply services pursuant to Fleet Maintenance or Fleet Management in relation to a vehicle, on the rates set out in a Quotation, the Customer will deliver to ORIX the appropriate Quotation and Order Form, duly completed and setting out (if not already completed), inter alia, the details of the vehicle that the Customer wishes to lease and the type of lease required (if a lease is requested) and the services that the Customer would like ORIX to provide. The Quotation and Order Form will be signed by the Customer or an Authorised Officer of the Customer. Each delivery of a Quotation and Order Form will constitute an offer by the Customer to ORIX to (c) lease a vehicle from ORIX; and/or (d) acquire services from ORIX pursuant to Fleet Maintenance or Fleet Management in relation to a vehicle, as set out in the Quotation and Order Form and incorporating the Standard Conditions. 3.3 Acceptance ORIX may accept the offer constituted by the delivery of a Quotation and Order Form by endorsing the Quotation and Order Form; or notifying the Customer that ORIX has placed an order for the selected vehicle in the case of an offer to lease a vehicle; or (c) acquiring the Lease Vehicle and causing it to be delivered in the case of an offer to lease a vehicle; or (d) making available to the Customer and/or commencing to provide services pursuant to Fleet Maintenance or Fleet Management in respect of the Nominated Vehicle in the case of an offer to acquire services only. ORIX SCFA 04/12_F0050_

11 3.4 Authority to Complete Forms Subject to clause 3.4, ORIX may complete the following types of particulars where the particulars have not been completed by the Customer in a Quotation and Order Form: (i) the date of the Fleet Agreement or the Quotation and Order Form; (ii) vehicle identifiers (including, but not limited to, the registration number, vehicle identification number); and (iii) delivery details. ORIX must only complete a particular in a manner which, in ORIX's reasonable opinion, the Customer would reasonably consider to be consistent with the terms of the Agreement and any other information which the Customer has provided in the Quotation and Order Form. 3.5 Cancellation of a Quotation and Order (c) (d) Prior to delivery of a Vehicle but after a Quotation and Order Form has been accepted by ORIX, the Customer may request that the particular Agreement be rescinded. If ORIX is able to cancel the order with the vehicle supplier ( Supplier ) for the relevant Vehicle without cost then ORIX must accept a request made pursuant to clause 3.5 and rescind the Agreement. If ORIX is only able to cancel the order to the Supplier for the relevant Vehicle by incurring cost, then ORIX will only accept a request made pursuant to clause 3.5 if the Customer has agreed to indemnify ORIX for all costs reasonably incurred by ORIX in rescinding the Agreement. For the avoidance of doubt, ORIX is not obliged to rescind an Agreement if it is not able to cancel the order with the Supplier without cost. 4. CUSTOMER OBLIGATIONS AND WARRANTIES 4.1 Customer Obligations The Customer will (Care of Vehicle): take all reasonable steps to protect any Vehicle from loss, damage or deterioration and without limiting the generality of this paragraph (i) only permit the use of the Vehicle by persons who hold a current and appropriate driver's licence and for purposes for which the Vehicle was designed and manufactured; and (ii) ensure that all laws in relation to the use of the Vehicle are complied with and that the Vehicle is not used in a dangerous, reckless or negligent manner or in contravention of the rights of any person; (Financial Statements): promptly supply to ORIX its annual financial statements and such other information concerning the financial position of the Customer as ORIX may from time to time reasonably require provided that ORIX agrees to keep confidential such other information and will not divulge such information except with consent of the Customer, or if required by law or any stock exchange, or in connection with legal proceedings relating to the Fleet Agreement or any Agreement, or to any assignee of its rights under the Fleet Agreement or any Agreement where the confidential nature of such information is conveyed to the assignee, or if the information is generally and publicly available; (c) (Interest): pay to ORIX on demand interest on all amounts payable under the Fleet Agreement or an Agreement by the Customer and which remain unpaid, including, without limitation, any interest payable under this or any other clause of the Fleet Agreement, and on any judgement in which this may be merged, at the Default Interest Rate, calculated on a daily basis from the date of default to the date of payment, such interest to be compounded monthly where compounding is not contrary to any law applicable to the Fleet Agreement or an Agreement; (d) (Costs): will pay to ORIX on demand (i) all Taxes directly or indirectly payable in relation to the Fleet Agreement or an Agreement or in relation to any thing done or to be done (including the receipt or payment of money) under the Fleet Agreement or an Agreement, whether specified in, or included in an amount specified in the Quotation and Order Form or not; and (ii) all legal (on a solicitor and own client basis) and other costs and expenses which ORIX may reasonably incur in connection with the stamping, registration or enforcement of, or preservation or attempted enforcement or preservation of, or the exercise of any right or remedy under the Fleet Agreement or an Agreement; (e) (Authorised Officers): when requested by ORIX, provide to ORIX a list of all current Authorised Officers. 4.2 Warranties Each time the Customer delivers a Quotation and Order Form to ORIX, the Customer and each Guarantor jointly and severally warrant, acknowledge and agree (so that no such warranty, acknowledgment or agreement will merge on the formation, performance or termination of the Agreement) that ORIX SCFA 04/12_F0050_

12 (c) (d) (e) (f) (g) (h) (i) (j) (k) (l) (m) (n) (Binding Agreement): the Fleet Agreement and Agreement are valid and legally binding on the Customer and the Guarantor in accordance with their terms; (Information): except as disclosed in writing to ORIX, all credit and financial information submitted to ORIX by or on behalf of the Customer or any Guarantor and statements made and particulars given by the Customer or any Guarantor in relation to or as a condition of the Agreement or any matter relating to the Agreement or the Fleet Agreement are true and correct and that the Customer's business or finances and that of any Guarantor have suffered no material deterioration since the time that the information was prepared, such statements made and such particulars given; (No Representations): ORIX has not made any representation, warranty or promise (express or implied) to the Customer regarding the Customer's rights under the Agreement in respect of any law relating to taxation (whether or not as to the deductibility of payments made or to be made in accordance with the Agreement) or the accounting treatment of any Lease in the Customer's financial statements or otherwise; (No Event of Default): no event has occurred which constitutes an Event of Default; (No Trusts): except as disclosed in writing to ORIX, neither the Customer nor any Guarantor is the trustee of any trust or holds any property subject to or impressed by any trust; (Trustee): if either the Customer or any Guarantor is a trustee of any trust, that party will be bound in its personal capacity and as trustee of each trust of which it is a trustee and is not and will not be in breach of the terms of any such trust; (Third Party Rights): on delivery of any Nominated Vehicle to ORIX, where ORIX performs its obligations or exercises any of its rights under the Agreement, such performance or exercise will not breach the rights, powers or remedies of any third party in respect of the Nominated Vehicle; (Incorporation): it has been duly incorporated or registered in accordance with the laws of the Commonwealth of Australia, is validly existing under those laws and has power and authority to carry on its business as it is now being conducted; (Power) it has power to enter into and observe its obligations under the Fleet Agreement; (Authorisations) it has in full force and effect the authorisations, consents and approvals necessary to enter into the Fleet Agreement, observe its obligations under the Fleet Agreement and allow them to be enforced; (Disclosure): it has fully disclosed in writing to ORIX all facts which are material to the assessment of the nature and amount of the risk undertaken by ORIX in entering into the Agreement; (Event of Default): no Event of Default or potential Event of Default has occurred which continues unremedied; (Litigation): to the best of its knowledge, information and belief, there is no pending or threatened action or proceeding affecting it or any of its assets before a court, tribunal, commission or arbitrator which might have a Material Adverse Effect; and (Commercial Benefit): it derives commercial benefit by executing the Fleet Agreement and any Agreement. 5. ORIX'S RIGHTS 5.1 Making Good Default ORIX may, without prejudice to any other right, power or remedy at law, in equity, under the Fleet Agreement or any Agreement or otherwise, do all acts and pay all moneys necessary to make good any breach or default of the Customer or any Guarantor and any expenses (including without limitation, legal costs assessed on a solicitor and own client basis) reasonably incurred in making good any breach or default and any moneys so paid will be immediately payable by the Customer or Guarantor to ORIX. 5.2 Charge The Customer grants ORIX a Security Interest over all Vehicles leased to the Customer by ORIX or acquired by ORIX on behalf of the Customer, and all proceeds (as defined in the PPSA) of those Vehicles (including any chattel paper (as defined in the PPSA) or Security Interest that the Customer has in the Vehicle or proceeds). This Security Interest is in addition to any other Security Interest granted by the Customer to ORIX and secures all Obligations owing by the Customer to ORIX. The Security Interest will operate as a first ranking security interest subject only to any encumbrances mandatorily preferred by law and any prior encumbrances. The Customer shall not assign or otherwise deal with any asset the subject of the Security Interest. 5.3 Stamping and Registration ORIX may at the Customer's expense stamp the Fleet Agreement and any Agreement; and register the Fleet Agreement and the respective interests of ORIX and the Customer in any Lease Vehicle or any Agreement, under any statute (including the Corporations Act or the PPSA) or law in any jurisdiction in which ORIX considers it desirable for the protection of any Lease Vehicle or ORIX's interest in the Lease Vehicle. ORIX SCFA 04/12_F0050_

13 5.4 Authorisations The Customer hereby appoints ORIX and each of its directors, secretaries and managers severally, as its attorney to do all things and execute all documents in respect of a Vehicle which it is obliged by an Agreement to do or execute but fails to do or execute in a timely fashion or which in the reasonable opinion of ORIX is necessary to be done or executed in order to assure to ORIX any of its rights in respect of a Vehicle or any benefits to which ORIX is entitled under the Agreement or the Fleet Agreement. The Customer irrevocably authorises ORIX to use the name of the Customer and to act on its behalf in exercising any rights or instituting, carrying on or enforcing any legal proceeding which ORIX, in its reasonable opinion, thinks desirable to protect its rights in a Vehicle. 5.5 Delegation of Rights In exercising any of its rights, powers and remedies, ORIX may act personally or by its employees, nominees or agents. 6. ORIX'S RIGHTS ON DEFAULT 6.1 Essential Terms The Customer and the Guarantor acknowledge and agree that all of the Essential Terms are essential terms of an Agreement and the Fleet Agreement and that the breach, non-observance or non-performance of any one or more such obligations shall be deemed to be a breach of an essential term of the Agreement and the Fleet Agreement. 6.2 ORIX's Rights on Default (c) Subject to clause 6.2(c), in addition to and without prejudice to any rights, remedies or powers at law, in equity, or under the Fleet Agreement or any Agreement, following an Event of Default ORIX may give the Customer notice that the Event of Default must be remedied within 5 Business Days of the date of the notice. If the Customer fails to remedy the Event of Default within the period specified in the notice under clause 6.2, ORIX will be entitled immediately to treat the Customer as having repudiated the Fleet Agreement, any Agreement and any Lease, entitling ORIX to exercise its rights under or in connection with the Fleet Agreement, the Agreement or the Lease, including, without limitation, the right to (i) terminate the Fleet Agreement, any Agreement and any Lease; (ii) recover the Lease Vehicle in accordance with clause 6 of the First Schedule; (iii) recover any moneys payable on early termination under clause 6.5 of the First Schedule in relation to a Lease Vehicle; and (iv) terminate the provision of services in relation to a Nominated Vehicle in accordance with clause 6.1 of the Second Schedule. Where an Event of Default occurs which: (i) involves a failure to obtain or maintain insurance; (ii) is an event of insolvency; (iii) is not capable of being remedied within 5 Business Days; or (iv) ORIX otherwise considers, acting reasonably, may: A. prejudice the safety or condition of the Vehicle; or B. prejudice ORIX's rights or interests in the Vehicle; or where clause provides that the provisions of this clause 6 shall apply as if an Event of Default had occurred, then ORIX may exercise its rights under clause 6.2 immediately without giving any notice to the Customer. 7. LIABILITY AND INDEMNITIES 7.1 Limitation of ORIX's Liability ORIX's liability (whether under the Australian Consumer Law or otherwise) in relation to the supply of a Lease Vehicle and of services (as defined in that Act), if any, under an Agreement and the Fleet Agreement (other than goods or services of a kind ordinarily acquired for personal, domestic or household use or consumption) is to the extent permitted by law and to the extent to which liability does not arise from a negligent act or omission of ORIX limited to ORIX SCFA 04/12_F0050_

14 in the case of a Vehicle, as determined by ORIX, the replacement of the Vehicle or the supply of an equivalent vehicle, or the repair of the Vehicle, or the payment of the cost of replacing the Vehicle or of acquiring an equivalent vehicle, or the payment of the cost of having the Vehicle repaired; and in the case of services, if any, as determined by ORIX, either the supplying of the services again, or the payment of the cost of having the services supplied again. 7.2 Exclusions Subject to clause 7.1 and the Agreement ORIX does not give warranties express or implied in relation to any Vehicle or any service; all conditions and warranties which may otherwise be implied in the Agreement at law, in equity or under any statute are excluded; and (c) Subject to clause 7.2(d) ORIX will not be responsible to the Customer, the Guarantor or any other person for, and the Customer and any Guarantor release and discharge ORIX from and indemnify and hold ORIX harmless against, any liability, loss (including without limitation indirect, consequential or economic loss), damage, claims, demands, actions, suits, proceedings, penalties, costs and expenses in respect of (i) any Vehicle or its possession, use, misuse, operation, theft, destruction or loss (including seizure and confiscation); (ii) the performance, non-performance, breach or default by the Customer of, or under, any Agreement or the Fleet Agreement; (iii) any matter in relation to which the Customer has assumed the risk under an Agreement or the Fleet Agreement; (iv) any claim made against ORIX by any third party in relation to the breach of any term of an Agreement or the Fleet Agreement by the Customer; and (v) any breach of any law, statute, by-law, decree, regulation, ordinance or judgment by the Customer or Guarantor, except to the extent that the loss, damage, claim, demand, action, suit, proceeding, penalty, cost or expense was directly caused by a negligent act or omission of ORIX. (d) Notwithstanding any obligations ORIX might have under clause 2 of the Second Schedule, except where the Vehicle has been returned to ORIX, the Customer shall be liable for and shall indemnify ORIX against any loss, damage, claim, demand, action, suit, proceeding, penalty, cost and expense arising from the operation or use of a Vehicle on a public road if (for any reason however occurring) the Vehicle is unregistered or is not compulsorily insured. If ORIX is providing the Customer services under clause 2 of the Second Schedule, in jurisdictions where replacement registration labels are not issued by the registration authority with registration renewals, the provisions of this sub-clause shall be applicable if ORIX has notified the Customer that a Vehicle s registration and/or compulsory insurance has either expired or is not (for whatever reason) being renewed. 7.3 Force Majeure ORIX shall not be held liable if it is prevented from observing any of the terms of the Fleet Agreement or an Agreement, by forces (either natural or human) beyond its control. 8. DISPUTES 8.1 Appointment of Independent Expert The parties will, in good faith, attempt to resolve any dispute of the nature set out in clause 8.2 which may arise under an Agreement or the Fleet Agreement. Should the parties be unable to resolve the dispute within 7 days after either of them serves notice on the other asserting that a dispute has arisen, giving details of the dispute and seeking resolution of the dispute, the dispute will be referred for the decision of an independent expert in the manner set out in clause Dispute Resolution Any dispute arising out of or pursuant to an Agreement in connection with the interpretation, application and/or effect of any mechanical and technical issues relating to chargebacks where the cost relates to driver abuse or negligence will be referred to the appropriate personnel of a motor vehicle association (as nominated by the general manager or equivalent position of the relevant motor vehicle association) in the State in which the vehicle is registered. 8.3 General If a dispute is referred to an independent expert in the manner provided in clauses 8.1 and 8.2 then the expert will act as an expert and not as an arbitrator; ORIX SCFA 04/12_F0050_

15 (c) (d) (e) (f) (g) the expert will be vested with entire discretion as to the procedure and manner to be followed in arriving at his decision; the parties will use their best endeavours to procure that the decision of the expert shall be given within 21 days or so soon thereafter as reasonably possible after it has been demanded; the expert's decision shall be final and binding on the parties and shall be carried into effect and may be made an order of any competent court at the instance of any of the parties; the provisions of this clause constitute an irrevocable consent by the parties to any proceedings arising in terms of them and none of the parties shall be entitled to withdraw from these provisions or claim at any such proceeding that he is not bound by the provisions of this clause; this clause shall survive the termination of the Agreement or the Fleet Agreement; and the party against whom a determination is made in accordance with this clause shall on demand pay to the successful party all expenses, including legal costs and disbursements on a solicitor/own client basis without the necessity of taxation, incurred by the successful party in connection with the appointment of, the proceedings before and the determination of the expert. 9. GST (c) Unless clearly indicated to the contrary, the prices, amounts and other consideration to be provided under or in connection with any Agreement or the Fleet Agreement ("agreed prices") are exclusive of GST. Where an agreed price is exclusive of GST, the Customer will pay to ORIX the agreed price plus the amount of any GST for which ORIX becomes liable in respect of any Taxable Supply made by ORIX in consideration for that agreed price. ORIX will provide the Customer with a tax invoice at or before the time the Customer is required under the Agreement or the Fleet Agreement to pay the agreed price for any Taxable Supply. 10. INCREASED COST If prior to delivery of a Lease Vehicle there is a change in the cost of the Vehicle or interest rates and that change results in the cost to ORIX of providing the Lease Vehicle, service or equipment pursuant to an Agreement to increase, ORIX will promptly notify the Customer in writing of the increased cost. The Customer hereby agrees to indemnify ORIX against such increased cost on notice from ORIX. If by reason of (i) a change to taxation law, that results in ORIX not being allowed a deduction for depreciation in respect of any Lease Vehicle (other than to the extent the purchase price of a vehicle exceeds the Car Limit for Luxury Vehicles as set out in the Income Tax Assessment Act); or (ii) a change to taxation law, that results in a change in the rate, the method of or frequency at which tax is calculated or paid; or (iii) ORIX incurring actual expense in order that it can comply with any request from or requirement of any Federal, State, or local governmental or quasi-governmental or municipal authority; or (iv) any change in taxation or other government charge (whether by way of a new tax or levy or an amendment to an existing tax or levy and whether sales, consumption, goods & services or any other form of taxation whatsoever), law or in the interpretation or administration of the same, the cost to ORIX of providing any Vehicle, service or equipment pursuant to an Agreement is increased, ORIX will promptly notify the Customer in writing of the increased cost. The Customer hereby agrees to indemnify ORIX against such increased cost on notice from ORIX. (c) If the Monthly Charge for a Nominated Vehicle includes allowance for the renewal of vehicle Registration and CTP insurance and if during the Lease Term or Fleet Management Term (as the case might be) for a Nominated Vehicle there is an extraordinary increase in the cost of renewing the Registration and CTP Insurance that could not have been reasonably anticipated by ORIX, the Customer hereby agrees to indemnify ORIX on notice from ORIX to the extent of such extraordinary increase. For the purposes of this sub-clause (c), an extraordinary increase will be deemed to be one that is greater than 10% per annum. 11. GUARANTEE AND INDEMNITY 11.1 Application This clause 11 shall apply if Item 3 of the Fleet Agreement Schedule is completed. ORIX SCFA 04/12_F0050_

16 11.2 Unconditional Guarantee The Guarantor irrevocably and unconditionally guarantees to ORIX the due and punctual performance by the Customer of all the Obligations Primary Obligation The Guarantor, as a separate, additional and primary liability, irrevocably and unconditionally agrees to indemnify ORIX and to keep ORIX indemnified on demand, against any loss or damage suffered by ORIX arising out of any failure by the Customer to duly and punctually perform the Obligations or any obligation or liability that would otherwise form part of the Obligations being void, voidable or unenforceable against or irrecoverable from the Customer by ORIX in full for any reason whatsoever Preservation of Guarantee The liability of each Guarantor under the Guarantee shall be absolute and shall not be subject to the execution of the Fleet Agreement, any Agreement or any other instrument or document by any person; subject to the performance of any condition precedent or subsequent; (c) affected by (i) any act, omission, matter or thing whatsoever that would otherwise operate in law or in equity to reduce, or release the Guarantor from, such liability; (ii) the granting by ORIX to any person of time waiver or indulgence; (iii) the making of any composition or compromise with any person; (iv) ORIX forbearing to enforce or neglecting to exercise any right against any person; (v) laches, acquiescence or any other act, neglect, default, omission or mistake by ORIX; (vi) any variation of any of the Obligations or of the Fleet Agreement, any Agreement or any Lease, made either with or without the knowledge of the Guarantor; (vii) the release or compromise of any of the Obligations; or (viii) any failure by ORIX to disclose to the Guarantor any fact, circumstance or event relating to any person at any time prior to or during the term of the Fleet Agreement or any Agreement Payments All payments by the Guarantor under the Guarantee shall be absolute and unconditional and free of any set-off or counter claim and without deduction or withholding No Competition The Guarantor will not prove in the insolvency of the Customer or any other Guarantor for any amount owing to the Guarantor other than on the basis that it will account to ORIX for any distribution received No Demand ORIX shall not, before making any demand or claim upon a Guarantor, be required to make any claim upon or take any action against the Customer or any other Guarantor Guarantor Not Trustee Unless ORIX is otherwise advised in writing by the Guarantor, the Guarantor warrants that it gives the Guarantee in its own right and not as a trustee or in any other representative capacity Guarantor Trustee If the Guarantor advises ORIX in writing that it is a trustee, the Guarantor discloses that it gives the Guarantee as the sole trustee of that trust; declares that it has all requisite power to do so; (c) undertakes personal liability under the Guarantee in addition to the liability it assumes as trustee of the trust; (d) agrees that it will not, prior to the satisfaction of all Obligations, exercise in the Guarantor's own favour any right of recourse, indemnification or charge to which the Guarantor may be entitled personally against or in respect of the trust assets; (e) acknowledges that if any trust assets shall at any time be in the hands of the Guarantor freed of their trust character, by virtue of the exercise or purported exercise of any such right of recourse indemnification or charge, the Guarantor will hold those assets for ORIX to the extent to which any Obligation has not been satisfied whether or not then due for satisfaction; ORIX SCFA 04/12_F0050_

17 (f) (g) (h) (i) agrees to notify ORIX forthwith in writing if it ceases for any reason or at any time to be the trustee of the trust and that it will procure any new trustee of the trust execute in favour of ORIX a guarantee similar to the Guarantee; agrees to notify ORIX forthwith in writing if the trust is determined or for any reason ceases to exist or if the Guarantor is required or directed by any of the beneficiaries of the trust to do any act or thing in relation to the trust which affects the Guarantee; undertakes to procure that no distribution of any of the capital of the trust is made without the prior written consent of ORIX; and agrees to furnish to ORIX whenever requested by ORIX, a copy of the current financial statements of the trust certified as correct by an auditor approved by ORIX and with such explanations and verifications as ORIX may request No Misrepresentation The Guarantor warrants that every statement made and every particular given by or on its behalf in relation to its financial position is true and not misleading by the omission of any relevant matter. 12. SUBSIDIARIES AND RELATED CORPORATIONS 12.1 Nomination Where a Customer has subsidiaries and/or related corporations and the Customer wishes the subsidiaries and/or related corporations to take advantage of the lease facility and/or the other services made available to the Customer by ORIX under the Fleet Agreement, the Customer may notify ORIX in writing of the names of such subsidiaries and/or related corporations and provide ORIX with an Authorised Officer Notification Form in respect of such entities. The Customer will procure that the party wishing to take advantage of the lease facility and/or other services made available to the Customer by ORIX under the Fleet Agreement, enters into an agreement with ORIX in a form acceptable to ORIX whereby it acknowledges its liability to ORIX as contemplated by clause Liability If ORIX agrees in writing to a subsidiary and/or related corporation of the Customer being nominated in the manner set out in clause 12.1, the subsidiary and/or related corporation will be entitled to request services from ORIX in the manner set out in the Fleet Agreement; be bound by the Fleet Agreement; and (c) be jointly and severally liable with the Customer for the payment of moneys and all other Customer obligations contained in the Fleet Agreement and any Agreement, as if the subsidiary and/or related corporation were the Customer. 13. PERSONAL PROPERTY SECURITIES ACT 13.1 Further Acts and Documents If ORIX determines that an Agreement (or a transaction in connection with the Agreement) is or contains a Security Interest, the Customer agrees to promptly do anything (including amending the Agreement, executing any new document, obtaining consents, signing and producing documents, getting documents completed and signed and supplying information) which ORIX may at any time require for the purposes of: ensuring that the Security Interest is enforceable, perfected and otherwise effective, or for providing more effective security over the collateral the subject of the Security Interest; or ensuring that the Security Interest is: (i) continuously perfected and/or; (ii) perfected by control; and/or (iii) perfected in a way that will reduce as far as reasonably possible the risk of a third party acquiring an interest in any collateral the subject of the Security Interest (including providing ORIX with all Serial Numbers for personal property that may or must be described by a Serial Number in accordance with the regulations under the PPSA), to the extent possible under the PPSA; or (c) enabling ORIX to apply for registration, or give any notification, in connection with the Security Interest so that the Security Interest has the priority required by ORIX; or (d) enabling ORIX to exercise any right or power in connection with the Security Interest. The Customer agrees that it will bear all costs and expenses that the Customer incurs in complying with this clause 13.1 and any costs and expenses incurred by ORIX for the purposes set out in clause ORIX SCFA 04/12_F0050_

18 13.2 Serial Numbered Vehicles If any Vehicle that is subject to a Security Interest in favour of ORIX is or becomes Serial Numbered Property, the following provisions apply: when requested by ORIX but in any event immediately following delivery of a Vehicle, the Customer must provide ORIX or ensure ORIX is provided with both the Serial Numbers and a copy of the registration certificate of the Vehicle (whether via the Acknowledgement of Delivery required by clause 1.4 of the First Schedule or otherwise) that ORIX would require to make an effective registration (with the priority required by ORIX) against that Serial Numbered Property in accordance with the PPSA and its regulations. ORIX is relying on this information and the Customer must make sure it remains true at all times. The Customer must tell ORIX, if, at any time, this information is no longer correct. The Customer shall compensate ORIX for any loss it suffers as a consequence of the Customer providing incorrect information, including providing an incorrect Serial Number; the Customer must: (i) notify ORIX immediately in writing of any Serial Number when it is allocated if a Serial Number has not been allocated to a Vehicle; and (ii) the Customer must not change or remove the Serial Number of any Vehicle which is Serial Numbered Property without the consent of ORIX Possession of Vehicle The Customer represents and warrants on a continuing basis that it has not had any Vehicle in its possession, or in the possession of any person at the Customer's request for a period longer than the date specified on the Acknowledgement of Delivery form Exclusion of PPSA provisions To the extent permitted by law, and in respect of each Security Interest created by an Agreement: the parties contract out of sections 95, 121(4), 125, 130, 132(3)(d), 132(4), 142 and 143 of the PPSA (to the extent, if any, mentioned in section 115(1) of the PPSA); the Customer irrevocably and unconditionally waives its right to receive any verification statement in respect of any financing statement or financing change statement relating to a Security Interest; (c) the Customer irrevocably and unconditionally waives its right to receive any other notice required under the PPSA unless the provision of such notice can not be excluded; and (d) the parties contract out of the application of subsection 116(2) of the PPSA to any provision of Part 4.3 of the PPSA in relation to a Vehicle Confidentiality The parties agree, to the full extent permitted by law, not to disclose information of the kind mentioned in section 275(1) of the PPSA. The Customer agrees that it will only authorise the disclosure of information under section 275(7)(c), or request information under section 275(7)(d), if ORIX approves Warranty The Customer warrants that all information or documentation provided to ORIX under this clause 13 is accurate and complete; and except where it is specifically agreed to the contrary in a Special Condition, the Customer does not and will not hold any Lease Vehicle as inventory (within the meaning given to that expression in any section of the PPSA) Proceeds If any collateral that is subject to a Security Interest created by an Agreement (or a transaction in connection with an Agreement) gives rise to any proceeds (including any proceeds within the definition of that term in the PPSA) derived directly or indirectly from any sale or dealing with the collateral or otherwise arising out of or relating to that collateral whether or not the sale or dealing is permitted under the Security Interest, ORIX's Security Interest continues in the collateral and attaches to the proceeds whether or not the Agreement remains in force. ORIX SCFA 04/12_F0050_

19 14. GENERAL 14.1 No Waiver No waiver by ORIX of any breach, failure or default in performance by the Customer or Guarantor, and no failure, refusal or neglect by or of ORIX to exercise any right under the Fleet Agreement or any Agreement or to insist upon strict compliance with, or performance of, the obligations of the Customer or the Guarantor under the Fleet Agreement or any Agreement shall constitute a waiver of the provisions of the Fleet Agreement or Agreement with respect to any subsequent breach, failure or default or a waiver by ORIX of its rights at any time under the Fleet Agreement or Agreement to require compliance with the provisions of them Certificates Subject to the terms of the Fleet Agreement and any Agreement, a certificate in writing signed by an officer of ORIX certifying the amount payable by the Customer or any Guarantor to ORIX; or the amount of costs and expenses incurred by ORIX in accordance with clause 4.1(d) of these General Conditions, clause 5.1(i) of the First Schedule or clauses 3.2, (c) or (d) of the Second Schedule; or (c) the amount of any increased costs in accordance with clause 10 of these General Conditions; or (d) the portion of the Monthly Charge attributable to Fleet Maintenance and/or Fleet Management (including any Fleet Elements); or (e) stating any other act matter or thing relating to the Fleet Agreement or Agreement, will in the absence of manifest error, be prima facie evidence of the matters therein and binding on the Customer and Guarantor Whole Agreement The Fleet Agreement and Agreement (as the case may be) constitute the entire agreement of the parties (into which all prior negotiations, commitments, representations and undertakings with respect to the subject matter of it are merged) and the parties acknowledge that there are no other oral or written understandings or agreements between them relating to the subject matter of the Fleet Agreement and Agreement (as the case may be). The Fleet Agreement and Agreement shall be binding upon the parties to them, their heirs, executors, administrators, successors and assigns Principal and Agent ORIX may enter into the Fleet Agreement, any Agreement and any Lease as the agent of any principal. If it does so, all references to ORIX in the Fleet Agreement, any Agreement or Lease will include that principal Governing Law The Fleet Agreement and any Agreement entered into pursuant to it will be construed in accordance with and governed by the State or Territory law set out in Item 4 of the Fleet Agreement Schedule and the Customer and the Guarantor agree to submit to the non-exclusive jurisdiction of the Courts of that State Notices Without limitation of any method of service permitted by law and except as otherwise provided in the Fleet Agreement every notice or other communication of any nature whatsoever required to be served, given or made under or arising from the Fleet Agreement or any Agreement will be in writing; will be deemed to have been duly served, given or made in relation to a party if it is (i) delivered to the address of that party set out herein (or at such other address as may be notified in writing by that party to the other parties from time to time); or (ii) posted by pre-paid post to such address; or (iii) sent by facsimile to the machine situated at such address; (c) will be sufficient if executed by the party giving, serving or making the same or on its behalf by any attorney, director, secretary, other duly authorised officer or solicitor of such party; and (d) will be deemed to be given, served or made (i) (in the case of pre-paid post): on the fifth day after the date of posting; (ii) (in the case of facsimile): on receipt of a transmission report confirming successful receipt at the conclusion of the transmission; (iii) (in the case of delivery by hand): on delivery; and ORIX SCFA 04/12_F0050_

20 (iv) (in the case of ): if no error or bounce-back message is received, at the time of transmission. delivery will not be accepted for notices that purport to terminate a Lease or constitute the exercise of rights on default. However, a notice or other communication delivered after 4.30 pm on a Business Day will be deemed to have been delivered at 9.00 am on the next Business Day Consents and Approvals Any consent or approval which may be applied for, to or given by ORIX under the Fleet Agreement or an Agreement may be given or withheld in ORIX's absolute discretion and, if given, may be unconditional or subject to such conditions as ORIX may in its absolute discretion determine Commissions The Customer acknowledges that persons may from time to time be introduced to ORIX by a broker, agent, dealer or other person and in such circumstances ORIX may pay commission, fees or other remuneration to such person. If a Lease results from any such introduction, the Customer consents to the payment of ORIX of commission fees or other remuneration to such person and acknowledges that ORIX may have taken such payment into account in arriving at the total rent payable under the relevant Lease Existing Lease Agreements The execution of the Fleet Agreement will not affect any other agreement between ORIX and the Customer which may be existing as at the date of the Fleet Agreement Assignment in General (c) (d) Payments Subject to clause 12 of these General Conditions and clause 7 of the First Schedule, the Customer shall not assign, sub-lease or novate (whether in whole or in part) any of its rights or obligations under the Fleet Agreement, any Agreement or any Lease. The Customer acknowledges that ORIX may at its absolute discretion, assign, hold on trust or otherwise deal with its rights powers and remedies under the Fleet Agreement, any Agreement and/or any Lease. The Customer will not, without ORIX's prior written consent, create, purport, or attempt to create or permit to exist any other Security Interest, however ranking, over any collateral that is subject to a Security Interest created by the Fleet Agreement or any Agreement (or a transaction in connection with the Fleet Agreement or the Agreement). For the avoidance of doubt, pursuant to section 80 of the PPSA, the Customer covenants not to assert any rights it would otherwise have under section 80(1) of the PPSA and it is intended specifically that any person ORIX assigns some or all of its rights and obligations under the Fleet Agreement, any Agreement or any Lease, should have the benefit of this covenant. All amounts payable by the Customer to ORIX under the Fleet Agreement or any Agreement must be (i) paid at the address of ORIX notified to the Customer from time to time; and (ii) free of any set-off or counterclaim and without deduction or withholding, provided that if the Customer is compelled by law to make any deduction or withholding, the Customer shall pay a net amount equal to the full amount which would otherwise be payable had no such deduction or withholding been made. The Customer irrevocably authorises ORIX (but without any obligation to do so on the part of ORIX) in the event of any default by the Customer or any non-payment by the Customer to ORIX, to apply any moneys on any account whatsoever payable to or standing to the credit of the Customer in or towards satisfaction of any moneys at any time due and payable or which may become due or payable whether presently or contingently or otherwise, to ORIX Electronic Transactions If the Customer requests, ORIX may grant to the Customer access to its internet based on-line systems including the Customer Centre and On-Line Quoting System. Any such access will be subject to the terms of the "Electronic Transactions Terms and Conditions" set out in the Third Schedule to these Standard Conditions. ORIX SCFA 04/12_F0050_