AGREEMENT FOR SALE AND COLLECTION OF USED EQUIPMENT

Transcription

1 CT1201G005 Appendix B Dated [ ] SATS AIRPORT SERVICES PTE LTD and [ ] AGREEMENT FOR SALE AND COLLECTION OF USED EQUIPMENT

2 TABLE OF CONTENTS Contents Page 1. Definitions Sale And Purchase Of The Used Equipment Collection Of Used Equipment Conduct While On Seller s Premises Security Deposit Title And Risk Time Is Of The Essence Payment Terms Force Majeure Liability And Indemnity Termination Assignment Confidentiality Notices Arbitration [Appointment Of Process Agent Entire Agreement Variation And Amendment Invalidity Counterparts And Language Waiver Relationship Between The Parties Contracts (Rights Of Third Parties) Act Governing Law And Jurisdiction...12 Schedule 1 Used Equipment...13 i

3 This Agreement for Sale and Collection of Used Equipment is made on between: 1 (1) SATS Airport Services Pte Ltd (Company Registration Number R), a company incorporated in Singapore and having its registered office at SATS Inflight Catering Centre 1, 20 Airport Boulevard, Singapore (the Seller ); and (2) (Company Registration Number [ ]), a company incorporated in [ ] Whereas: and having its registered office at [ ] (the Buyer ). The Buyer wishes to purchase the Used Equipment (as defined below) from the Seller, and the Seller has agreed to sell the Used Equipment to the Buyer, upon the terms and conditions hereinafter set forth. It is agreed as follows: 1. Definitions 1.1 The terms and expressions hereinafter set out shall for the purposes of this Agreement have the following meanings, unless the context otherwise requires: Affiliate in relation to any person ("the first mentioned person") means any person ("the second mentioned person") which is Controlled (whether directly or indirectly) by or which Controls (whether directly or indirectly) the first mentioned person and includes any other person which is Controlled (whether directly or indirectly) by or which Controls (whether directly or indirectly) the second mentioned person Agreement means the main body of this Agreement for Sale and Collection of Used Equipment and any and all Schedules and Appendices annexed hereto and incorporating all amendments thereto, if any, effected by mutual agreement in writing Collection Date means [ ], or such other date as the Parties may agree in writing Collection Location means [[ ], or such other location as the Seller may notify the Buyer in writing] / [in relation to each Used Equipment, the location stated in column (4) of Schedule 1] Control in relation to any person means either of the following: 1 Please note that all applicable non-negotiable provisions, as reflected in the table set out in the cover page, have been highlighted in this Agreement. 2 If the collection of the Used Equipment by the Buyer will be done in different locations, each location should be set out in Schedule 1 corresponding to the relevant Used Equipment. However, if the Used Equipment will be collected at only one location, the location should be stated in the definition of Collection Location itself

4 (i) (ii) the power to set or determine the management of the affairs of that person or to select appoint or determine the composition of a majority of the board of directors of that person; or the ownership of not less than fifty per cent. (50%) of the total issued voting shares or stock in that person, and Controlled shall be construed accordingly Force Majeure means any event the occurrence of which is beyond the control of the Seller, including but not limited to: (i) (ii) (iii) (iv) (v) (vi) war, invasion, rebellion, revolution, insurrection or civil war; act of Government in its sovereign capacity; earthquakes, fire, lightning, storms, floods, unusually severe or extreme weather conditions or any other occurrence caused by the operation of the forces of nature; interruption or curtailment in the provision of electricity, water, gas and/or any other utilities; strikes, lockouts, boycotts or labour disputes; and terrorism, sabotage or arson Parties means the Seller and the Buyer, and Party means either of them Price in relation to each Used Equipment, means the price stated in column (3) of Schedule 1 for such Used Equipment Security Deposit shall have the meaning ascribed to it in Clause $ means the lawful currency of the Republic of Singapore Used Equipment means the [used vehicles and ground support equipment] 3 described in column (2) of Schedule The headings and sub-headings of the provisions of this Agreement are to facilitate reference only and do not form a part of this Agreement, and shall not in any way affect the construction or interpretation thereof. 1.3 Unless the context otherwise requires, in this Agreement: words using the singular or plural number also include the plural or singular number, respectively; words denoting any gender shall include all genders; 3 SATS to review and confirm / edit as appropriate

5 1.3.2 the terms hereof, herein, hereby, hereto and similar words refer to this entire Agreement and not any particular Clause, or any other subdivision of this Agreement; the words include or including shall be deemed to be followed by without limitation or but not limited to whether or not they are followed by such phrases or words of like import; references to any person include any natural person, corporation, judicial entity, association, statutory body, partnership, limited liability company, joint venture, trust, estate, unincorporated organisation or government, state or any political subdivision, instrumentality, agency or authority; and references to any Clause Schedule or Appendix or any other agreement or document in this Agreement shall be construed as references to the clauses schedules or appendices of this Agreement, or such other agreement or document, as may be amended, modified or supplemented from time to time, and shall include a reference to any document which amends, modifies or supplements it, or is entered into, made or given pursuant to or in accordance with its terms. 1.4 Notwithstanding anything to the contrary herein, in the event of any conflict between any of the terms of the main body of this Agreement for Sale and Collection of Used Equipment and the terms of any Schedule or Appendix, those terms of the main body of this Agreement for Sale and Collection of Used Equipment shall prevail. 2. Sale And Purchase Of The Used Equipment 2.1 Subject to the terms and conditions of this Agreement, the Seller shall sell, and the Buyer shall purchase, the Used Equipment on the Collection Date. 2.2 The Buyer acknowledges and agrees that: unless otherwise agreed by the Seller in writing, the Buyer shall purchase all (and not only some) of the Used Equipment set out in Schedule 1; and the sale and collection of all Used Equipment under this Agreement is on an as is, where is basis, and the Seller makes no representations or warranties whatsoever in relation to the Used Equipment, other than that the Seller is able to pass to the Buyer clean title to the Used Equipment in accordance with this Agreement. 2.3 Save as expressly stated otherwise in Clause 2.2.2, any and all conditions, terms, representations, undertakings and/or warranties howsoever arising whether as to the quality of the Used Equipment or their fitness for any purpose or otherwise are expressly excluded. The Buyer shall be solely responsible for inspecting any and all of the Used Equipment, and satisfying itself as to the nature, quantities and condition thereof, and shall do so on taking delivery of the Used Equipment at the Collection Location for such Used Equipment

6 3. Collection Of Used Equipment 3.1 The Buyer shall at its own costs and expense make all arrangements necessary to take delivery of the Used Equipment from the Collection Location for such Used Equipment on the Collection Date. 3.2 If the Buyer fails or is not entitled to take delivery of any of the Used Equipment from its Collection Location on the Collection Date, the Seller may, without limiting any other right or remedy available to the Seller: store such Used Equipment until such time that the Buyer takes delivery thereof, and charge the Buyer a storage fee in such amount and at such rate as the Seller may determine; and/or sell, deal with or otherwise dispose of any or all of such Used Equipment which remains in the Seller s possession after the Delivery Date thereof, on such terms and conditions as the Seller in its sole discretion deems fit without notice to the Buyer, in which case: (i) (ii) the Buyer shall promptly reimburse the Seller all costs and expenses incurred by the Seller in relation to or arising from such sale, dealing or disposal; and the Seller may deduct from or set-off against the proceeds of any sale of such Used Equipment any amount due to the Seller from the Buyer in connection with this Agreement, whether as costs and expenses, damages or otherwise. 3.3 The Buyer shall: if so requested by the Seller, provide the Seller with the particulars, including the name, address, nationality, passport number and work permit number, of the Buyer's personnel who will enter onto any Collection Location; allow the Seller or its agents to inspect at any time any vehicles, plant, machinery, equipment, materials, belongings and effects sought to be brought onto any Collection Location; clear away and remove from the Collection Location(s) all material, debris, rubbish, waste materials of every kind arising out of the Buyer's activities on the Collection Location; and remain at the Collection Location(s) only for so long as is reasonably necessary to collect the Used Equipment and to fulfil its obligations under Clause Conduct While On Seller s Premises 4.1 Without prejudice to any of the provisions in Clause 3.3, when entering on or remaining at any Collection Location for any purpose as contemplated under this Agreement, the Buyer - 4 -

7 shall ensure that each of its officers, employees, servants, agents and sub-contractors shall at all times while at the Collection Location conform in every respect with such instructions, requirements, rules and regulations as the Seller may prescribe pertaining to the entry by and presence and conduct of such personnel while at the Collection Location. The Buyer shall use due care to avoid or minimise damage in relation to any person or property and make every effort to cause as little disturbance and inconvenience as possible to the Seller, its officers, directors, shareholders, agents and employees, or any occupier of such Collection Location. 4.2 The Seller may deny any person entry to any Collection Location or expel any person thereon if such person fails to comply with any such rules or regulations or fails to comply with any reasonable requests or instructions as may be made or given by or on behalf of the Seller. 4.3 The Seller shall not be liable for any inconvenience, loss, damage, cost or expense arising from the Seller s refusal to permit or delay in permitting entry to any person onto any Collection Location or expulsion of any person therefrom pursuant to Clause 4.2. Any such refusal, delay or expulsion shall not in any way affect or relieve the Buyer from the Buyer's obligations under this Agreement. 5. Security Deposit 5.1 The Buyer shall no later than [ ] days before the Collection Date pay the Seller an amount equal to $[ ] ( Security Deposit ), or in lieu of such payment, provide the Seller with a banker's guarantee issued by a bank approved by, and on such terms and conditions as may be prescribed by, the Seller. 5.2 Any payment pursuant to Clause 5.1 shall constitute security for the payment of any sum due and payable to the Seller from the Buyer as liquidated damages, compensation or otherwise, and the Seller shall be entitled to retain the amount of such payment until [ ] days after the Collection Date or the termination of this Agreement, whichever is the earlier to occur, and may utilise at any time the whole or any part of such payment in payment of any sum due to the Seller from the Buyer. The Seller shall not be required to pay any interest on the Security Deposit. 5.3 In the event that the Buyer provides the Seller with a banker's guarantee in lieu of paying the Seller the amount of the Security Deposit: the Seller may, but shall not be obliged to, invoke the banker's guarantee and recover therefrom in respect of any sum due and payable to the Seller from the Buyer without prejudice to any other rights or remedy which may be available to the Seller whether under this Agreement or at law; and the Buyer shall procure that the date specified in such banker's guarantee as the expiry date is successively extended so that demands under the banker's guarantee can continue to be validly made by the Seller and honoured by the issuing bank at any time throughout the period from the date of issuance of such - 5 -

8 banker's guarantee up to [ ] days after the Collection Date or the termination of this Agreement, whichever is the earlier to occur. 6. Title And Risk 6.1 Title to the Used Equipment shall pass to the Buyer upon taking delivery of the Used Equipment or payment to the Seller of the total of the Prices therefor, whichever shall occur later. 6.2 Risk in the Used Equipment shall pass to the Buyer on the Collection Date for such Goods. 7. Time Is Of The Essence 7.1 Time shall be of the essence of this Agreement, both as regards any time, date or period originally fixed or any time, date or period which may be extended by agreement between the Parties. 8. Payment Terms 8.1 The Buyer shall pay the Seller the total of the Prices for the Used Equipment at least [ ] days before the Collection Date of such Used Equipment. 8.2 The Prices under this Agreement are denominated in $, and are exclusive of any goods and services tax which may be imposed by any government bodies or authority(ies) against the Buyer or the Seller in connection with the sale of the Used Equipment. The Buyer shall bear and pay all charges, fees or taxes imposed or levied in respect of the sale of the Used Equipment. 8.3 The Buyer shall pay the Seller interest on any and all sums due or payable to the Seller under this Agreement at the rate per annum equal to [ ] per cent. ([ ]%) calculated from the date when such sum becomes due and payable and compounded monthly at the beginning of each calendar month until full payment thereof is made to the Seller by the Buyer. 8.4 Without prejudice to its other rights under this Agreement or at law, in the event that the Buyer fails to make payment in accordance with Clause 8.1, the Seller may at its discretion: decline to deliver the Used Equipment to the Buyer on the Collection Date thereof; and/or claim the Price(s) of the Used Equipment from the Buyer notwithstanding that title thereto had not yet passed to the Buyer. 8.5 Save as may be expressly provided in this Agreement, all payments to the Seller under this Agreement shall be made free of: any deductions in respect of taxes imposed by law; and any rights of set-off by the Buyer

9 8.6 The Seller may, to the extent permitted by law, deduct from or set-off any amount due and payable to the Seller from the Buyer against any payment or sum due and payable to the Buyer from the Seller and/or any of its Affiliates, whether under this Agreement or otherwise and whether as damages or otherwise. 9. Force Majeure 9.1 If the Seller is by reason of Force Majeure rendered unable wholly or in part to perform its obligations under this Agreement, it shall be released from its obligations hereunder to the extent to which it is affected by the circumstances of Force Majeure and for the period during which those circumstances exist and shall provide notice in writing of such Force Majeure to the Buyer promptly after the occurrence of the cause relied on, Provided that nothing in this Clause shall relieve either Party from any obligations to make any payments required to be made hereunder to the other Party. 10. Liability And Indemnity 10.1 The Seller shall have no responsibility (whether to the Buyer or otherwise) in respect of any losses which are not reasonably foreseeable, any indirect or consequential losses, any loss of profit, use, anticipated savings, goodwill, reputation or business contracts, or any other form of pure economic loss, or any loss or damage suffered by the Buyer as a result of, or in connection with, any claims brought against the Buyer by any third party, howsoever arising (whether in contract, tort or otherwise) and even if the Seller had been advised of the possibility or likelihood of the same Subject to Clause Error! Reference source not found., the Buyer shall indemnify the Seller and its Affiliates against all claims, liabilities, expenses, costs, loss or damage of whatever nature (including legal costs on a full indemnity basis incurred by the Seller) brought against, suffered or incurred by the Seller arising out of or in connection with this Agreement, including without prejudice to the generality of the foregoing: any breach of the terms and conditions of this Agreement by the Buyer; any death of and/or injury to any person and/or loss of or damage to any property which may arise out or in consequence of the presence of the Buyer or its servants, agents, officers, employees or sub-contractors on any Collection Location; any statement, act, omission, fraud, negligence or default whatsoever of the Buyer or any of its servants, agents, officers, employees or sub-contractors (which the Buyer agrees it shall be fully and solely liable and responsible for); any enforcement or attempted enforcement by the Seller of its rights or remedies against the Buyer. 11. Termination - 7 -

10 11.1 Notwithstanding anything to the contrary contained herein, the Seller may at its sole discretion terminate this Agreement immediately with respect to any or all of the Used Equipment at any time before the Collection Date of such Used Equipment by giving written notice to the Buyer if: the Buyer commits any breach of any term of this Agreement; any mortgagee, chargee or encumbrancer takes possession or a receiver is appointed over any of the property or assets of the Buyer; the Buyer makes any voluntary arrangement with its creditors or becomes subject to an administration order; an order of court is made to wind up the Buyer or to place it under judicial management or a resolution is passed by the members of the Buyer for its winding up or liquidation; any distress or execution is levied or enforced in relation to any of the assets of the Buyer or if any encumbrancer takes possession of or a receiver is appointed of all or such part of the undertaking or property or assets of the Buyer; the Buyer ceases, or threatens to cease, to carry on business or becomes insolvent or admits in writing its inability to pay its debts when due; the Buyer offers, gives or agrees to give, or has offered, given or agreed to give, to any person any gift or consideration of any kind as an inducement or reward for doing or forbearing to do or for having done or forborne to do, any action in relation to the obtaining or execution of this Agreement; the Buyer shows or forbears to show favour to any person in relation to any agreement with the Seller, or if similar acts shall have been done by any person employed by the Buyer or acting on its behalf (whether with or without the knowledge of the Buyer); or in relation to any agreement with the Seller, the Buyer or any person employed by it or acting on its behalf commits any offence under the Penal Code (Chapter 224) or the Prevention of Corruption Act (Chapter 241), or abets or attempts to commit such an offence, or gives any fee or reward the receipt of which is an offence under the Penal Code or the Prevention of Corruption Act Nothing in this Agreement shall prejudice the rights and obligations which have accrued prior to the termination of this Agreement or preclude either Party from claiming against the other Party in respect of any loss or damage arising from or incurred as a result of any breach of any of the provisions of this Agreement occurring prior to the termination of this Agreement. 12. Assignment - 8 -

11 12.1 Neither Party may assign or transfer its rights or benefits and/or obligations under the terms of this Agreement to any third party without the prior written consent of the other Party, provided that the Seller may assign its rights and benefits under the terms of this Agreement to any of its Affiliates and in the event of such assignment, the duties and obligations of the Seller under this Agreement may be performed by its assignee in lieu of the Seller. 13. Confidentiality 13.1 The Buyer acknowledges that all information relating to the Seller and/or its operations are confidential and belong to the Seller. The Buyer shall maintain and cause to be maintained the confidentiality of all such information, and shall not without the prior written consent of the Seller (which shall not be unreasonably withheld), copy or use or disclose any such information whether during the term or after the termination of this Agreement to any person save and to the extent that such use or disclosure is necessary: for the discharge of the Buyer s obligations under this Agreement; or for financial reporting purposes of the Buyer; or to comply with statutory or regulatory requirements in Singapore; or in the prosecution or defence of any legal action in any court of law The Seller acknowledges that all information relating to the Buyer and/or its operations are confidential and belong to the Buyer. The Seller shall maintain and cause to be maintained the confidentiality of all such information, and shall not without the prior written consent of the Buyer (which shall not be unreasonably withheld), copy or use or disclose any such information whether during the term or after the termination of this Agreement to any person save and to the extent that such use or disclosure is necessary: for the discharge of the Seller's obligations under this Agreement; or for financial reporting purposes of the Seller; or to comply with statutory or regulatory requirements in Singapore; or in the prosecution or defence of any legal action in any court of law Clauses 13.1 and 13.2 shall not apply to any confidential information which at the time it is disclosed, made available or otherwise provided by the Party to whom such information relates, is in the public domain and shall cease to apply to any information which subsequently becomes publicly available otherwise than as a consequence of any breach by the Buyer of Clause 13.1 and by the Seller of Clause 13.2, as the case may be. 14. Notices 14.1 Any notice, demand or other communication to either Party by the other shall be given in writing and delivered to the addresses or facsimile numbers set out hereunder. Such - 9 -

12 notice, demand or communication shall be deemed to have been duly served (if delivered personally or given or made by facsimile) immediately or (if given or made by letter to an address within Singapore) [ ] days after posting. To the Seller: [ ] Facsimile No.: [ ] Attention: [ ] To the Buyer: [ ] Facsimile No.: [ ] Attention: [ ] 15. Arbitration 15.1 Any dispute, controversy or disagreement arising out of or relating to this Agreement, including any question regarding its existence, validity or termination ( Dispute ) shall be referred for determination or resolution in an arbitration conducted by the Singapore International Arbitration Centre ( SIAC ) and in accordance with the SIAC Rules ( Rules ) except to the extent that the Rules conflict with the provisions of this Article, in which event the provisions of this Clause 15 shall prevail and apply The number of arbitrators shall be one (1), the place of the arbitration shall be Singapore, and the language of the arbitration shall be English Any decision or award of the arbitral tribunal shall be final and binding upon the Parties to the arbitration proceeding. The Parties hereto agree that the arbitral award may be enforced against the Parties to the arbitration proceeding or their assets wherever they may be found and that a court ruling upon enforcement of the arbitral award may be entered in any court having jurisdiction thereof. The Parties also hereby irrevocably waive and exclude any right to appeal to any court in any jurisdiction against any such decision or award or to seek any review or revision of any such decision or award by any court in any jurisdiction. The foregoing shall be without prejudice to the rights of either Party to refer any Dispute to the courts for resolution where necessary to preserve the subject matter of the action by way of injunctive or declaratory proceedings. 16. [Appointment Of Process Agent 16.1 The Buyer hereby irrevocably appoints [ ] of [ ] as its agent to accept service of process in Singapore in any legal action or proceeding arising out of this

13 Agreement, service upon whom shall be deemed valid service whether or not the process is forwarded to or received by the Buyer The Buyer shall inform the Seller, in writing, of any change in the address of its process agent within 28 days of such change If such process agent ceases to be able to act as such or to have an address in Singapore, the Buyer irrevocably agrees to appoint a new process agent in Singapore acceptable to the Seller and to deliver to the Seller within 14 days a copy of a written acceptance of appointment by its new process agent Nothing contained in this Agreement shall affect the right to serve process in any other manner permitted by law [or the right to bring proceedings in any other jurisdiction for the purposes of the enforcement or execution of any judgment or other settlement in any other courts].] Entire Agreement 17.1 This Agreement contains the entire agreement between the Parties with respect to its subject-matter, supersedes all previous agreements and understandings between the Parties, and may not be modified except by an instrument in writing signed by the duly authorised representatives of the Parties. 18. Variation And Amendment 18.1 No variation, amendment or rescission of this Agreement shall bind either Party unless made in writing and signed by both Parties. 19. Invalidity 19.1 If at any time any provision of this Agreement is or becomes invalid, illegal or unenforceable in any respect, the validity, legality or enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby. The Parties agree to amend or replace any invalid, illegal or unenforceable provision of this Agreement by valid, legal and enforceable provisions which achieve, to the greatest extent possible and in the interests of the Parties hereto, the economic and all other purposes of the invalid, illegal or unenforceable provision. 20. Counterparts And Language 20.1 This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which together shall constitute one and the same instrument. 21. Waiver 4 This Clause 16 should be included where the Buyer is located outside of Singapore

14 21.1 The failure of either Party to insist upon a strict performance of any of the terms or provisions of this Agreement or to exercise any option, right or remedy herein contained, shall not be construed as a waiver or as a relinquishment in the future of such term, provision, option, right or remedy, but the same shall continue and remain in full force and effect throughout the term of this Agreement. No waiver by either Party of any term or provision thereof shall be deemed to have been made unless expressed in writing and signed by an authorised representative of such Party. 22. Relationship Between The Parties 22.1 Nothing contained in this Agreement is intended nor shall it be regarded as constituting a partnership, agency, joint venture or fiduciary relationship between the Parties. 23. Contracts (Rights Of Third Parties) Act 23.1 A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act (Chapter 53B of Singapore) to enforce any term of this Agreement, save that any of the Seller's Affiliates may enforce and rely on the provisions of Clauses 8.6 and 10.2 to the same extent as if it were a party to this Agreement, provided nevertheless that this Agreement may be terminated and any term of this Agreement may be amended or waived without the consent of any of such Affiliates. 24. Governing Law And Jurisdiction 24.1 This Agreement shall be governed by and construed in accordance with the laws of Singapore Subject to the dispute resolution provisions in Clause 15, the Parties submit unconditionally to the exclusive jurisdiction of the courts of Singapore

15 Schedule 1 Used Equipment S/No. Description of Used Equipment Price ($) [Collection Location (1) (2) (3) (4)] 5 1. [ ] [ ] [ ] 2. [ ] [ ] [ ] 3. [ ] [ ] [ ] 5 This column (4) to be inserted if the Used Equipment will be delivered to the Buyer at more than one Collection Location

16 In witness whereof this Agreement has been entered into on the date stated at the beginning. The Seller SIGNED by [Click here and type individual name] for and on behalf of SATS Airport Services Pte Ltd in the presence of: Witness signature Name: Address: The Buyer SIGNED by [Click here and type individual name] for and on behalf of [ ] in the presence of: Witness signature Name: Address: