Exhibit 4.23
(REIWA LOGO)
APPROVED BY
THE REAL ESTATE INSTITUTE
OF WESTERN AUSTRALIA (INC.)
COPYRIGHT (C) REIWA 2004
FOR USE BY REIWA MEMBERS 02/04 R401
STANDARD COMMERCIAL/INDUSTRIAL
PROPERTY LEASE (PART A)
NOT FOR RETAIL PREMISES OR OTHER PREMISES WHERE THE COMMERCIAL TENANCY
(RETAIL SHOPS) AGREEMENT ACT 1985 APPLIES
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GENERAL TERMS AND CONDITIONS OF THE LEASE
THIS DOCUMENT INCORPORATES THE PARTICULARS OF THE LEASE CONTAINED IN THE
DOCUMENT ATTACHED.
- IMPORTANT - READ THE FOLLOWING BEFORE USING THIS DOCUMENT -
- This lease contains two documents, the General Terms and Conditions of the
Lease (Part A), and the Particulars of the Lease (Part B) specific to the
subject property. Both documents and any necessary attachments must be
received by all parties signing to the Lease.
- Complete all the appropriate items of the Particulars of the Lease.
(Document attached)
- This lease is suitable for use where the leased premises comprise:
- the whole of lessors's land; or
- part of the lessor's land.
In either case the "Premises" must be identified by making the
appropriate deletion in Item 4 of the Particulars of the Lease. Where
the leased premises comprise part of the land they must be identified
on a plan by colouring them and the plan must be annexed to the lease.
- Any additions (e.g. at item 18 of the Particulars of the Lease) should be
initialled by all parties.
- Any deletions or omissions should be struck through and initialled by all
parties.
- At item 18 of the Particulars of the Lease if there is insufficient room,
insert the words "refer annexation/s" and annex the appropriate item/s.
- Any annexations should:
- contain the preamble "this is the annexation referred to in the
relevant item number of the Particulars of the Lease of (premises)
between (lessor) and (lessee)".
- be initialled by all parties, and
- be firmly attached to the lease.
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TABLE OF CONTENTS
OPERATIVE PART
TERMS AND CONDITIONS
Page
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1. DEFINITIONS........................................................ 1
2. INTERPRETATION..................................................... 4
2.1 Headings................................................... 4
2.2 Last day not a Business Day................................ 4
2.3 Joint and several covenants................................ 4
2.4 Extended References........................................ 4
2.5 Reference to Statutes...................................... 4
2.6 Number and gender.......................................... 4
2.7 Professional Body.......................................... 4
2.8 Lessee's Covenants......................................... 5
3. RENT AND OTHER OUTGOINGS........................................... 5
3.1 Rent....................................................... 5
3.2 Rates and Taxes............................................ 5
3.3 Outgoings separately assessed.............................. 5
3.4 Managing Agent's Fees...................................... 5
3.5 Services................................................... 5
3.6 Common Area................................................ 5
4. MAINTENANCE, REDECORATION AND CLEANING............................. 5
4.1 Maintain and Repair........................................ 5
4.2 Exceptions................................................. 6
4.3 Manner of Lessee's work.................................... 6
4.4 Air Conditioning Plant..................................... 6
4.5 Electric globes............................................ 6
4.6 Paint and decorate......................................... 6
4.7 Clean...................................................... 6
4.8 Lessee's Property...................,...................... 6
5. ALTERATIONS........................................................ 6
6. TRADING HOURS...................................................... 6
7. USE OF THE PREMISES................................................ 6
7.1 General.................................................... 6
7.2 Acknowledgment............................................. 7
7.3 Chemicals and inflammable substances....................... 7
7.4 Compliance................................................. 7
7.5 Structural Works........................................... 7
8. LESSEE'S INSURANCE OBLIGATIONS..................................... 7
8.1 Maintain insurance......................................... 7
8.2 Premiums................................................... 7
8.3 Copy of policy and certificate of currency................. 7
8.4 Increased rate of premium.................................. 8
9. LESSEE'S INDEMNITIES............................................... 8
9.1 General indemnity.......................................... 8
9.2 Limit of Lessee's liability to indemnify................... 8
9.3 Costs and expenses......................................... 8
9.4 Lessee to indemnify for breach............................. 8
9.5 Lessee to indemnify as result of early termination......... 8
9.6 Calculation of the benefit of Lessee not performing
Lessee's Covenants......................................... 9
9.7 Lessee's indemnities not affected.......................... 9
9.8 Indemnities................................................ 9
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10. LESSEE'S OBLIGATION TO GIVE VACANT POSSESSION...................... 9
10.1 Vacate on Termination...................................... 9
10.2 Removal of Lessee's Property............................... 9
10.3 Reinstatement.............................................. 9
11. LESSEE'S GENERAL OBLIGATIONS....................................... 9
11.1 Positive obligations...................................... 9
11.2 Negative obligations...................................... 10
12. LESSOR'S OBLIGATIONS............................................... 10
12.1 Quiet enjoyment............................................ 10
12.2 Lessor's insurance obligations............................. 10
12.3 Structural works........................................... 11
12.4 Common Area and Supply of Services......................... 11
12.5 No right of Termination by Lessee.......................... 11
12.6 Limitation of Lessor's obligations......................... 11
12.7 Limitation of Lessor's liability........................... 11
13. LESSOR'S RIGHTS.................................................... 11
13.1 Right to enter............................................. 11
13.2 Inspection by prospective lessees or purchasers............ 11
13.3 Avoid inconvenience........................................ 12
13.4 Easements or other rights.................................. 12
13.5 Lessor may rectify..............,.......................... 12
13.6 Lessor may create security interest........................ 12
13.7 Common Area................................................ 12
14. DEFAULT BY LESSEE.................................................. 12
14.1 Essential terms............................................ 12
14.2 Lessor's right to terminate................................ 12
14.3 Interest on overdue money.................................. 12
14.4 Tender after Termination................................... 12
15. HOLDING OVER....................................................... 13
16. SUPPLIES OF SERVICES............................................... 13
16.1 Indirect Supplies.......................................... 13
16.2 Direct Supplies............................................ 13
17. NAME OF BUILDING................................................... 13
18. RENT REVIEW........................................................ 13
18.1 Rent Review................................................ 13
18.2 Lessor's proposed new Rent................................. 13
18.3 Lessee disputing Lessor's proposed new Rent................ 13
18.4 Deemed acceptance of proposed new Rent..................... 13
18.5 Application of proposed new Rent........................... 13
18.6 Determination of Rent...................................... 14
18.7 Fair Market Rent........................................... 14
18.8 Valuer as expert........................................... 14
18.9 Valuer's costs............................................. 14
18.10 CPI Rent................................................... 14
18.11 Payment of Rent before determination....................... 15
19. OPTION............................................................. 15
20. DESTRUCTION OR DAMAGE TO BUILDING OR PREMISES .................... 15
20.1 Procedure following destruction or damage.................. 15
20.2 Lessee's right to terminate Lease.......................... 15
20.3 No liability as a result of termination.................... 15
20.4 Abatement of Rent.......................................... 15
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21. Act by Agents...................................................... 16
22. LESSEE LIABLE FOR LICENSEES........................................ 16
23. ASSIGNMENT, SUBLETTING AND CHARGING................................ 16
23.1 Prohibition................................................ 16
23.2 Lessee's obligations....................................... 16
23.3 Conditions of Xxxxxx's consent to assignment............... 16
23.4 Conditions of Lessor's consent to subletting............... 16
23.5 No possession until consent................................ 17
23.6 Consent to charge.......................................... 17
23.7 Lessee remains liable...................................... 17
23.8 Payments................................................... 17
23.9 Change in shareholding..................................... 17
23.10 Exclusion of the Property Law Act.......................... 17
23.11 Guarantees required........................................ 18
23.12 Covenants are supplementary................................ 18
24. GUARANTEE AND INDEMNITY............................................ 18
24.1 Guarantee.................................................. 18
24.2 Indemnity.................................................. 18
24.3 Continuing guarantee and indemnity......................... 18
24.4 Waiver of prior proceedings................................ 18
24.5 Liability and rights not affected.......................... 18
24.6 Guarantor not to prove in competition...................... 19
24.7 Reinstatement of guarantee................................. 19
24.8 Costs and expenses......................................... 19
24.9 Assignment................................................. 19
25. LESSEE'S TRUST..................................................... 19
26. NOTICE............................................................. 20
27. SPECIAL CLAUSES.................................................... 20
28. PROPER LAW AND ARBITRATION......................................... 20
28.1 Proper Law................................................. 20
28.2 Arbitration................................................ 20
29. STRATA TITLE PROVISIONS............................................ 20
29.1 Strata Title provisions................................... 20
30. MISCELLANEOUS...................................................... 22
30.1 Accrual on a daily basis................................... 22
30.2 Statutory Powers........................................... 22
30.3 Moratorium not to apply.................................... 22
30.4 Severance.................................................. 23
30.5 Waivers.................................................... 23
30.6 Variation.................................................. 23
30.7 Further assurances......................................... 23
30.8 Counterparts............................................... 23
30.9 Payment of Money........................................... 23
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THIS LEASE made
BETWEEN
The Lessor described in item 1 of the Particulars of the Lease ("Lessor")
AND
The Lessee described in item 2 of the Particulars of the Lease ("Lessee")
AND
The Guarantor described in item 3 of the Particulars of the Lease
("Guarantor")
OPERATIVE PART
The Lessor LEASES the Premises to the Lessee and the Lessee ACCEPTS the Premises
on lease SUBJECT to the Encumbrances and for the Term RESERVING to the Lessor
the Lessor's Rights and the Lessor and the Lessee COVENANT and AGREE to observe
and perform the Terms and Conditions.
The Guarantor ACKNOWLEDGES that:
1. the Guarantor has requested the Lessor to grant this Lease and will receive
valuable consideration for giving the Guarantee and Indemnity; and
2. it is a condition of the Lessor granting this Lease that the Guarantor
grants the Guarantee and Indemnity.
TERMS AND CONDITIONS
1. DEFINITION
In this Lease, unless otherwise required by context or subject matter:
"Act" means any statute for the time being enacted and all re-enactments,
substitutions, modifications, regulations, bylaws, requisitions, notices
and orders made to or under any act from lime to time by any Authority;
"Address" means the address specified in Item 12 of the Particulars or any
other address which the Lessor by notice to the Lessee nominates;
"Air Conditioning Plant" means all compressors, condensors, chiller sets,
pumps, pipe works, switchboards, wiring, thermostats, controls, cooling
towers, air handling units and duct work used for the production and
reticulation of chilled water and conditioned air for the Building but does
not include any air conditioning plant or equipment which is part of the
Lessee's Property;
"Appointed Valuer" means a Valuer appointed under clause 18.7; "Authority"
means a statutory, public or other competent authority;
"Building" means the building and all other improvements and structures
erected on the Land;
"Business Day" means a day other than a Saturday, Sunday or gazetted public
holiday in Western Australia;
"Common Area" means that part of the Land and Building (if any) set aside
by the Lessor for use by the Lessee and other occupants of the Building and
includes any part of it;
"Common Area Rules" means the rules made by the Lessor from time to time
relating to the conduct of lessees and the operation, use and occupation of
the Land and which are consistent with this Lease;
"Co-surety" means in relation to a Guarantor, any other person named as
Guarantor or who otherwise guarantees payment of the Money;
"CPI" means the consumer price index compiled by the Australian Bureau of
Statistics for Perth (Capital City) (all groups index numbers) or if that
index is suspended or discontinued, the index substituted for it by the
Australian Statistician;
"CPI Rent" means the Rent as determined in accordance with clause 18.10;
"Current CPI" means in respect of a Rent Review Date, the CPI number last
published before that date or if the Lessor appoints an actuary to select
or determine an index in accordance with clause 18.10 the number certified
by the actuary;
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"Date of Commencement" means the date specified in Item 7 of the
Particulars;
"Encumbrances" means all mortgages, writs, warrants, caveats, easements,
restrictive covenants and other instruments noted on the certificate of
title for the Land;
"Event of Default" means the occurrence of any of the following events:
(a) the Lessee repudiates or commits a fundamental breach of this Lease;
(b) any Money is unpaid for seven (7) days after notice of non-payment is
given;
(c) a breach of the Lessee's Covenants is not remedied to the Lessor's
reasonable satisfaction within fourteen (14) days after notice of the
breach is given;
(d) a judgment, order or an encumbrance is enforced, or becomes
enforceable against any property of the Lessee; or
(e) the happening of any one of the following events in relation to the
Lessee or a Guarantor:
(i) an application is made to a court that the Lessee or the
Guarantor be wound up or a provisional liquidator be appointed or
that it be wound up voluntarily or by the Court or a provisional
liquidator or administrator is appointed;
(ii) the Lessee or Guarantor proposes to enter into or enters into any
form of arrangement (formal or informal) with its creditors or
any of them;
(iii) a receiver or receiver and manager is appointed to any of the
assets of the Lessee or Guarantor;
(iv) the Lessee or the Guarantor becomes insolvent or is unable to pay
its debts within the meaning of section 95A(2) or section 459C(2)
of the Corporations Law of Western Australia; or
(v) the Lessee or the Guarantor becomes an insolvent under
administration as defined in section 4 of the Corporations Law of
Western Australia;
"Fair Market Rent" means the fair market rent for the Premises as
determined in accordance with clause 18.7 by the Appointed Valuer;
"Further Term" means each further term specified in Item 8 of the
Particulars;
"Guarantee and Indemnity" means the guarantee and indemnity in clause 24;
"Insured Risk" means fire, explosion, earthquake, aircraft, riot, civil
commotion, flood, lightning, xxxxx, xxxxxxx, act of God, fusion, smoke,
rainwater, water leakage, impact by vehicles, machinery breakdown and
malicious acts or omissions and any other event which is insured against
under this Lease including all other risks which the lessor considers to be
necesary or expedient but an event is not an Insured Risk to the extent
that the insured Lessor must bear any loss, damage or expense caused or
contributed to by the event under an "excess" provision in the insurance
policy;
"Interest" means interest calculated at the rate specified in Item 13 of
the Particulars on daily balances of overdue Money from the due date for
payment of the Money for so long as the Money remains unpaid;
"Land" means the land described in Item 5 of the Particulars;
"Lease" means this lease as supplemented or varied from time to time;
"Legal Practitioners Act" means the Legal Practitioners Act 1893;
"Lessee's Business" means the business of the Lessee carried on at the
Premises;
"Lessee's Covenants" means the covenants, agreements and duties contained
or implied in this Lease or imposed by law to be observed and performed by
any person other than the Lessor;
"Lessee's Property" means any plant or equipment, fixtures, fittings,
furniture or furnishings or other property not owned by the Lessor or any
predecessor in title to the Lessor and which the Lessee or a Licensee
brings onto or fixes to the Premises with the consent of the Lessor;
"Lessee's Rights" means the right to use:
(a) the Lessor's Property;
(b) the Services supplied to the Premises; and
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(c) if this Lease is in respect of part of the Land only, the Common Area
(if any) in common with the Lessor and any other person authorised by
the Lessor; and
all rights in favour of the Lessee contained or implied in this Lease;
"Lessee's Share" means that share which bears the same proportion to the
whole as the area of the Premises bears to the total lettable area of the
Building;
"Lessor's Property" means all plant and equipment, fixtures, fittings,
furniture and furnishings in or fixed to the Premises that are not Xxxxxx's
Property including:
(a) the Air Conditioning Plant;
(b) glass and plate glass;
(c) floor and window coverings;
(d) partitioning;
(e) light fittings;
(f) lavatories;
(g) sinks;
(h) drains;
(i) sewerage and plumbing facilities; and
(j) gas and electrical installations and facilities:
"Lessor's Rights" means:
(a) the right to install in the Premises and use cables, pipes and wires
for the supply of a Service for the Premises or any adjoining
property; and
(b) all rights in favour of the Lessor contained or implied in this Lease
or granted by law;
"Licensee" means:
(a) an agent, employee, licensee, or invitee of the Lessee; and
(b) any person visiting the Premises with the express or implied consent
of any person mentioned in paragraph (a);
"Managing Agent" means any person or firm appointed by the Lessor from time
to time to manage the building.
"Metropolitan Region" means the region described in the Metropolitan Region
Town Planning Scheme Act 1959;
"Money" means the Rent and any other money payable by the Lessee under this
Lease including without limitation money payable during any period of
holding over or while the Lessee occupies or is entitled to occupy the
Premises under any other legal or equitable right or tenancy or as a
trespasser and includes any part of it;
"Operative Part" means the operative part in this Lease mentioned above;
"Particulars" means the particulars in this Lease mentioned below;
"Permitted Use" means the use specified in Item 16 of the Particulars;
"Premises" means the Premises described in Item 4 of the Particulars;
"Previous CPI" means in respect of a Rent Review Date, the CPI number last
published before the later of the Date of Commencement and the last
preceding Rent Review Date or if the Lessor appoints an actuary to select
or determine an index under clause 18.10 the number certified by the
actuary;
"Rates and Taxes" means:
(a) (i) council rates and charges including, but not limited to, rubbish
removal rates and charges; and
(ii) water, drainage and sewerage rates including, but not limited to,
meter rents, charges for the disposal of stormwater, and water
charges;
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levied, charged, assessed or imposed in respect of any part of
the Premises or the ownership or occupation of any part of the
Premises;
(b) State Land Tax; and
(c) where the Land is situate in the Metropolitan Region, Metropolitan
Region Improvement Tax assessed on the Lessor in respect of the Land;
"Real Estate and Business Agents Act" means the Real Estate and Business
Agents Act 1978;
"Rent" means the rent specified in Item 9 of the Particulars as varied from
time to time under this Lease;
"Rent Review Date" means each date mentioned in Item 10 of the Particulars;
"Reviewed Rent" means the Rent on review as determined in accordance with
clause 18.6;
"Service" means a service running through or serving the Premises including
air conditioning, power, water, gas, telecommunications, fire equipment,
sewerage and public address;
"State Land Tax" means land tax assessed on the Lessor in respect of the
Land and calculated on the basis that the Land is the only land of which
the Lessor is the owner within the meaning of the Land Tax Assessment Act
1976;
"Terms and Conditions" means these Terms and Conditions;
"Term" means the term specified in Item 6 of the Particulars and any
Further Term;
"Termination" means expiry of the Term by effluxion of time or sooner
determination of the Term;
"Valuer" means a valuer who is a full member of not less than five (5)
years standing of the Australian Institute of Valuers and Land Economists
Incorporated (WA Division) and who has been actively engaged in Western
Australia for not less than five (5) years at the time of his appointment
under clause 18.7(a) in valuing commercial and industrial premises.
2. INTERPRETATION
2.1 Headings
Except in the Particulars, headings are inserted for ease of reference
only and do not affect the interpretation of this Lease.
2.2 Last day not a Business Day
When the day on or by which any act, matter or thing is to be done is
not a Business Day in the place where that act is to be done, the act,
matter or thing may be done on the next following Business Day in that
place.
2.3 Joint and several covenants
If a party is two or more persons, the covenants and agreements on
their part bind them jointly and each of them severally.
2.4 Extended References
Unless stated otherwise, a reference to:
(a) a party includes the executors, administrators, personal
representatives, successors, and assigns, of that party or if a
party is two or more persons, those of each of them; and
(b) a person includes a body corporate and vice versa.
2.5 Reference to Statutes
A reference to an Act of Parliament includes a reference to each
regulation, ordinance or by-law made under that Act and all statutes,
regulations, ordinances and by-laws amending, consolidating or
replacing any of them.
2.6 Number and gender
Words in the singular number include the plural and vice versa and
words of one gender include each other gender.
2.7 Professional Body
A reference to a professional body includes a successor to or
substitute for that body.
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2.8 Lessee's Covenants
Unless stated otherwise, a covenant by the Lessee not to do or omit to
do any act or thing requires the Lessee to ensure compliance with the
covenant by any Licensee.
3. RENT AND OTHER OUTGOINGS
3.1 Rent
(a) The Lessee shall pay to the Lessor the Rent by equal monthly
instalments in advance on the Date of Commencement and then on
the first day of each month during the Term to the Address except
that the first and last payments shall be apportioned on a daily
basis if they are in respect of less than a month.
(b) The Rent shall be paid clear of all deductions.
3.2 Rates and Taxes
The Lessee shall pay:
(a) to the Lessor; or
(b) if the Lessor requests the Lessee to pay an Authority, then to
that Authority,
the Rates and Taxes within ten (10) days of service by the Lessor
on the Lessee of each account issued by an authority for the
Rates and Taxes but if the Premises comprise part of the Land and
any of the Rates and Taxes are not separately assessed for the
Premises the amount payable by the Lessee is the Lessee's Share
of these Rates and Taxes.
3.3 Outgoings separately assessed
The Lessee shall pay to the relevant Authority all outgoings
separately assessed in respect of the Premises including, but not
limited to electricity, gas and other power and light charges and
expenses including charges and assessments for use, installation
charges and rents within ten (10) Business Days of receipt by the
Lessee of each account issued by an Authority for the outgoings.
3.4 Managing Agent's Fees
The Lessee shall pay:
(a) to the Lessor; or
(b) if the Lessor requests the Lessee to pay the Managing Agent, then
to the Managing Agent, the fees of the Managing Agent not
exceeding the scale prescribed under the Real Estate and Business
Agents Act within five (5) Business Days of service by the Lessor
on the Lessee of the Managing Agent's statement of account but if
the Premises comprise part of the Land and the Managing Agent's
fees are not separately charged for the Premises, the amount
payable by the Lessee is the Xxxxxx's Share of the Managing
Agent's fees.
3.5 Services
The Lessee shall pay to the Lessor on demand the costs and expenses
reasonably and property incurred by the Lessor in providing the
Services but if the Premises comprise part of the Land the amount
payable by the Lessee is the Lessee's Share of those costs and
expenses.
3.6 Common Area
If there is a Common Area the Lessee shall pay to the Lessor on demand
the Lessee's Share of the costs and expenses reasonably and properly
incurred by the Lessor in cleaning, lighting and maintaining the
Common Area.
4. MAINTENANCE, REDECORATION AND CLEANING
4.1 Maintain and Repair
Subject to clause 4.2, the Lessee shall:
(a) maintain, replace, repair and renovate the Premises and the
Lessor's Property so that the Premises and the Lessor's Property
are at all times kept in good condition;
(b) maintain that part of any drains, pipes and other conduits
originating in or connected to the Premises in a clean, clear and
free flowing condition;
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(c) regularly clean and maintain any grease traps serving the
Premises, whether or not within the Premises; and
(d) promptly clean all blockages in the drains, pipes, other conduits
and grease traps.
4.2 Exceptions
The Lessee need not maintain, replace, repair or renovate in respect
of:
(a) fair wear and tear;
(b) damage caused by an Insured Risk unless the insurance moneys are
rendered irrecoverable by an act or omission of the Lessee or a
Licensee; or
(c) structural damage or defects not caused by a negligent or
unlawful act or omission of the Lessee or a Licensee;
4.3 Manner of Xxxxxx's work
The Lessee shall carry out all the Lessee's obligations under clause
4.1 in a proper and workmanlike manner and with materials of the same
or similar quality to those used at the Date of Commencement.
4.4 Air Conditioning Plant
If the Premises comprise the whole of the Land the Lessee shall effect
and keep in force a contract with a reputable air conditioning service
company for the regular repair and maintenance of the Air Conditioning
Plant.
4.5 Electric Globes
The Lessee shall replace all electric globes and fluorescent tubes in
the Premises which fail for any reason.
4.6 Paint and decorate
The Lessee shall paint and redecorate the Premises with materials and
to standards reasonably approved by the Lessor at the intervals
specified in Item 14 of the Particulars.
4.7 Clean
The Lessee shall:
(a) keep the Premises clean and free from rubbish;
(b) store all rubbish in a hygienic manner in a receptacle designed
for that type of rubbish; and
(c) remove on a regular basis any rubbish of a kind not removed by
the local authority.
4.8 Lessee's Property
The Lessee shall maintain the Lessee's Property in clean and good
condition.
5. ALTERATIONS
The Lessee shall not make any alteration or addition to or demolish any
part of the Premises without the prior written consent of the Lessor which
consent may not be withheld unreasonably having regard to the Permitted
USE.
6. TRADING HOURS
The Lessee shall keep the Premises open for business during the usual
business hours generally applicable to a business comparable to the
Lessee's Business.
7. USE OF THE PREMISES
7.1 General
The Lessee shall not use any part of the Premises for any purpose
other than the Permitted Use.
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7.2 Acknowledgment
The Lessee acknowledges that:
(a) it has not relied on any warranty or representation from the
Lessor as to how the Premises may be used; and
(b) it is aware of all prohibitions or restrictions on the use of the
Premises.
7.3 Chemicals and inflammable substances
The Lessee shall not, except for reasonable quantities for normal
applications in connection with the use of the Premises permitted by
the Lessor, use or store any chemical or inflammable substance within
the Building.
7.4 Compliance
Subject to clause 7.5 the Lessee shall comply on time with all lawful
requirements and orders of an Authority and all Acts applying to the
Premises and the use and occupation of the Premises and shall obtain,
renew on time and comply with any consent, licence or authority
necessary for the Lessee to carry on the Lessee's Business at the
Premises.
7.5 Structural Works
Despite clause 7.4 the Lessee need not carry out work of a structural
nature in complying with the requirements and orders of an Authority
or an Act except works made necessary by the nature of the Lessee's
Business or the Lessee's use or occupation of the Premises or to
repair structural damage caused by the negligent or unlawful act or
omission of the Lessee or a Licensee.
8. LESSEE'S INSURANCE OBLIGATIONS
8.1 Maintain insurance
The Lessee shall unless otherwise agreed effect and maintain with an
insurance office approved by the Lessor in respect of the Premises:
(a) in the names of the Lessor and the Lessee and any mortgagee of
the Land for their respective rights and interests:
(i) public risk insurance to a sum insured of at least the
amount set out in Item 15 of the Particulars; and
(ii) plate glass insurance to a sum insured of at least the full
insurable value of the plate glass comprised in the
Premises;
(b) insurance of the Lessee's Property to the full insurable value
against theft, fire, explosion, earthquake, aircraft, riot, civil
commotion, flood, lightning, xxxxx, xxxxxxx, act of God, fusion,
smoke, rainwater, water leakage, impact by vehicles, machinery
breakdown and malicious acts or omissions; and
(c) employers' indemnity insurance including workers' compensation
insurance for the Lessee's employees.
8.2 Premiums
Unless otherwise agreed the Lessee shall pay all premiums and other
costs of effecting policies of insurance under:
(a) clause 8.1; and
(b) clause 12.2, but if the Premises comprise part of the Land and a
policy is taken out in respect of the whole of the Building the
Lessee is only liable for the Lessee's Share of the premium.
8.3 Copy of policy and certificate of currency
If the Lessee is required to effect and maintain insurance under
clause 8 the Lessee shall if required by the Lessor provide a copy of
the policy and a certificate of currency to the Lessor.
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8.4 Increased rate of premium
The Lessee shall:
(a) not without the Lessor's consent bring to or keep anything or do
or omit to do any act on the Premises
which might increase the rate of premium or render any insurance
in respect of the Premises void or voidable; and
(b) if the Lessee brings or keeps any thing on the Premises or does
or omits to do any act on the Premises, which increases the rate
of premium pay the increased premium.
9. XXXXXX'S INDEMNITIES
9.1 General indemnity
Subject to clause 9.2 the Lessee indemnifies the Lessor against any
loss, liability, costs or expenses incurred or suffered by the Lessor
or any employee, officer or agent of the Lessor arising from or in
connection with:
(a) any damage to the Premises or any loss of or damage to anything
in it or near it; or
(b) any injury to any person in or near the Premises,
to the extent caused or contributed to by the act or omission of the
Lessee or a Licensee.
9.2 Limit of Xxxxxx's liability to indemnify
The Lessee is not liable to indemnify the Lessor under clause 9.1 if
and to the extent that payment of insurance money under the Lessor's
insurance policies in respect of that damage, loss or expense is:
(a) received by the Lessor; or
(b) refused or reduced by reason of an act or omission of the Lessor.
9.3 Costs and expenses
The Lessee shall pay to the Lessor on a full indemnity basis the
reasonable legal costs and expenses, not exceeding the scale
prescribed under the Legal Practitioners Act, payable by the Lessor of
and incidental to the instructions for and the preparation, completion
and stamping of:
(a) this Lease; and
(b) any other document required by this Lease.
9.4 Lessee to indemnify for breach
The Lessee indemnifies the Lessor against any liability or loss
arising from, and any costs, charges and expenses incurred in
connection with, an Event of Default including without limitation
reasonable legal costs and expenses on a full indemnity basis, not
exceeding the scale prescribed under the Legal Practitioners Act,
payable by the Lessor, including legal costs and expenses for the
preparation and service of a notice under section 81 of the Property
Law Act requiring the Lessee to remedy a breach of the Lessee's
Covenants even if forfeiture for breach is avoided otherwise than by
relief granted by the Court.
9.5 Lessee to indemnify as result of early termination
If an Event of Default occurs and as a consequence this Lease is
terminated, the Lessee indemnifies the Lessor against any liability or
loss arising from, and any costs, charges and expenses incurred:
(a) in connection with the Lessor re-entering the Premises;
(b) because the Lessor will not receive the benefit of the Lessee
performing the Lessee's Covenants from the date of termination
until expiry of the Term; and
(c) in connection with anything else relating to that termination,
including without limitation, in the Lessor attempting to
mitigate its loss,
whether before or after termination of this Lease, including in each
case, without limitation, reasonable legal costs and expenses on a
full indemnity basis, not exceeding the scale prescribed under the
Legal Practitioners Act, payable by the Lessor.
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9.6 Calculation of the benefit of Xxxxxx not performing Xxxxxx's Covenants
The benefit of the Lessee not performing the Lessee's Covenants is to
be calculated on the assumption that this Lease continues in force
until the expiration of the Term (excluding any Further Term) and
taking into account the provisions of this Lease relating to the
Money.
9.7 Xxxxxx's indemnities not affected
The indemnities under clauses 9.5 and 9.6 are not affected by:
(a) the Lessor re-entering the Premises or otherwise terminating this
Lease;
(b) the Lessor accepting the Lessee's repudiation;
(c) the Lessee abandoning or vacating the Premises; or
(d) the conduct of either party constituting a surrender by operation of
law.
9.8 Indemnities
In relation to or pursuant to each of the indemnities in this Lease:
(a) each indemnity is a continuing obligation, separate and
independent from the other obligations of the Lessee and survives
expiry or termination of this Lease;
(b) it is not necessary for the Lessor to incur expense or make
payment before enforcing a right of indemnity; and
(c) the Lessee shall pay to the Lessor an amount equal to any loss,
liability, costs or expenses suffered or incurred by any
employee, officer or agent of the Lessor.
10. XXXXXX'S OBLIGATION TO GIVE VACANT POSSESSION
10.1 Vacate on Termination
On Termination or termination of any period of holding over under this
Lease the Lessee shall:
(a) vacate the Premises;
(b) leave the Premises in a condition complying with the Lessee's
Covenants; and
(c) surrender all keys for the Premises to the Lessor.
10.2 Removal of Lessee's Property
The Lessee shall remove the Lessee's Property from the Premises when
the Premises are vacated under clause 10.1 and promptly make good in a
proper and workmanlike manner any damage caused by that removal.
10.3 Reinstatement
If the Lessee makes any alterations or additions to the Premises
(whether or not the Lessor has approved them) the Lessee shall
reinstate the Premises before Termination or termination of any period
of holding over under this Lease.
11. XXXXXX'S GENERAL OBLIGATIONS
11.1 Positive obligations
The Lessee shall:
(a) carry on the Lessee's Business in a proper and efficient manner;
(b) observe the maximum floor loading weights for the Premises;
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(c) if the Lessee has lodged a caveat not prohibited by clause
11.2(k):
(i) consent to any dealing relating to the Land and provide any
documents that are necessary to permit registration of that
dealing immediately after the Lessee has been given the
documents or assurances that it reasonably requires to
protect its rights under this Lease and the Lessor may
require that the documents or assurances be prepared by the
Lessor's solicitors provided that the Lessor pays the
Lessor's solicitors' costs; and
(ii) withdraw the caveat on the expiry of the Term or upon an
assignment of this Lease; and
(d) if there is any Common Area observe the Common Area Rules.
11.2 Negative obligations
The Lessee may not, without the Lessor's approval:
(a) do anything in or about the Premises or the Building which is
illegal, noxious, offensive or audibly or visually a nuisance to
the Lessor or the owner or occupier of an adjoining property;
(b) carry out works which interfere with the Services (unless the
Lessor has approved the contractor and the plans and
specifications of the proposed work), or otherwise interfere with
the Services;
(c) obstruct access to or overload the Services;
(d) use any method of heating, cooling or lighting the Premises other
than those provided by the Lessor;
(e) use any facilities in or about the Premises or the Building
including any lavatory, sink, drain or other sewerage or plumbing
facility and any gas or electrical fitting or appliance for any
purpose other than that for which it was designed;
(f) construct or place any sign or advertisement whether fixed or
free standing on any part of the Premises unless of appropriate
design or size for the Premises and the surrounding area and
complying with the requirements of the local authority;
(g) hold auction, bankrupt, fire or closing down sales in the
Premises;
(h) use the Premises as a residence;
(i) keep any live animal or bird on the Premises;
(j) grant concessions, licences or otherwise give permission to any
person to carry on the Lessee's Business in the Premises;
(k) lodge or permit to exist a caveat on the title of the Land except
a caveat noting the Lessee's "subject to claim" interest under
this Lease and any option to renew the Term;
(l) make holes in or otherwise interfere with the walls in the
Premises except so far as is reasonably necessary to fix or place
signs, advertisements, blinds, awnings or shop fittings approved
by the Lessor which approval shall not be unreasonably withheld;
(m) burn any rubbish on the Premises except in an incinerator and in
a place approved by the Lessor and the local authority for that
purpose; or
(n) if there is any Common Area, obstruct the Common Area.
12. LESSOR'S OBLIGATIONS
12.1 Quiet enjoyment
Subject to the Lessor's Rights, the Lessee may quietly hold the
Premises and enjoy the Lessee's Rights during the Term without any
interruption or disturbance from the Lessor or any person lawfully
claiming through or under the Lessor, if the Lessee observes and
performs the Lessee's Covenants.
12.2 Lessor's insurance obligations
The Lessor shall unless otherwise agreed effect and maintain in the
names of the Lessor and the Lessee and any mortgagee of the Land and
the other lessees of the Building (if any) for their respective rights
and interests insurance of the Premises and the Building against:
(a) the insured Risks for the full reinstatement costs of the
building;
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(b) loss of rent for a period of not more than 12 months and
outgoings including Rates and Taxes;
(c) demolition and removal of debris;
(d) architects' and other consultants' fees and;
(e) claims under workers' compensation and statutory liability by
employees of the Lessor working in or about the Premises.
If the Lessor is required to maintain and effect insurance under
clause 12.2 the Lessor shall if required by the Lessee provide a copy
of the policy and a certificate of currency to the Lessee.
12.3 Structural works
The Lessor shall perform in a proper and workmanlike manner any
structural works to the Building which are required to keep the
Premises maintained in good condition or to comply with the
requirements of an Authority unless the Lessee is required to perform
the structural works under this Lease.
12.4 Common Area and Supply of Services
Subject to the Lessor's Rights, the Lessor shall take reasonable steps
to clean, light and maintain the Common Area (if any) and to ensure
that the Services are properly supplied to the Premises.
12.5 No right of Termination by Xxxxxx
Despite clauses 12.2, 12.3 and 12.4, the Lessee may not terminate this
Lease or cease or reduce payments under this Lease arising from a
breach of clause 12.2, 12.3 or 12.4.
12.6 Limitation of Lessor's obligations
The Lessor's obligations under this Lease bind only the person holding
the reversionary estate in the Land immediately expectant on the
expiry of the Term and only render the Lessor liable in damages when
the act, omission or default giving rise to damages occurs while the
Lessor is the registered proprietor of the Land.
12.7 Limitation of Lessor's liability
If the Lessor holds the Land as the trustee of a trust, then the
Lessor's obligations under this Lease only bind the Lessor while the
Land is an asset of that trust and the liability of the Lessor is
limited to the net value of the assets held by the Lessor as trustee
of that trust.
13. LESSOR'S RIGHTS
13.1 Right to enter
The Lessor or a person authorised by the Lessor may enter the Premises
at all times and without notice if there is an emergency, but
otherwise at all reasonable times after giving the Lessee at least
seven (7) days notice of entry for any one of the following purposes:
(a) view the state of repair of the Premises and to ensure compliance
with the Lessee's Covenants;
(b) maintain or repair the Premises;
(c) maintain, repair or alter the Services;
(d) comply with any requirement or notice of an Authority in relation
to the Premises for which the Lessee is not responsible under
this Lease; or
(e) remove harmful substances.
13.2 Inspection by prospective lessees or purchasers
The Lessor or a person authorised by the Lessor may, after giving the
Lessee reasonable notice of entry or display:
(a) enter the Premises when open for trading to allow prospective
purchasers or tenants of the Premises to inspect the Premises;
and
(b) display, during the last three (3) months of the Term, in the
Premises a "For Lease" sign.
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13.3 Avoid inconvenience
If the Lessor exercises the Lessor's power of entry under clause 13.1
or 13.2 the Lessor shall do all that is reasonable in the
circumstances to avoid causing undue inconvenience to the Lessee.
13.4 Easements or other rights
The Lessor may grant easements or other rights over the Premises to a
person on any terms and for any purpose unless the Lessee establishes
that the use of the easement or exercise of the right would
substantially derogate from the enjoyment of the Lessee's Rights by
the Lessee.
13.5 Lessor may rectify
The Lessor may do anything which should have been done by the Lessee
under this Lease but which has not been done or which has not been
done properly and for that purpose, the Lessor and its architects,
contractors, employees and agents may enter the Premises and remain
there for as long as is necessary.
13.6 Lessor may create security interest
The Lessor may at any time create or allow to exist any mortgage,
charge, lien, trust or power, as or in effect as security for the
payment of a monetary obligation or compliance with any other
obligation over the Land or assign or otherwise dispose of or deal
with the Land or its rights under this Lease as the Lessor sees fit.
13.7 Common Area
If there is a Common Area, the Lessor may close the Common Area or any
part of it, to maintain, repair or alter the Common Area but the
Lessor shall give the Lessee at least seven (7) days prior notice and
shall do all that is reasonable in the circumstances to avoid causing
undue inconvenience to the Lessee.
14. DEFAULT BY XXXXXX
14.1 Essential terms
The following Lessee's Covenants are essential terms of this Lease:
(a) the obligations to pay Rent and Rates and Taxes under clause 3;
(b) the obligations to maintain, repair and redecorate under clause
4; and
(c) the obligations under clauses 5, 7.1, 8, 9.1, 11.2(a) and 23,
but this does not mean or imply that there are no other essential
terms in this Lease.
14.2 Lessor's right to terminate
If an Event of Default occurs the Lessor may terminate this Lease by:
(a) re-entering the Premises without notice; or
(b) notice to the Lessee,
except that if section 81(1) of the Property Law Act 1969 applies, the
Lessor's right to terminate only arises after the Lessor has given a
notice which complies with that section and the Lessee has failed to
comply with that notice.
14.3 Interest on overdue money
Interest is payable on overdue Money and the Lessee must pay Interest
to the Lessor on demand.
14.4 Tender after Termination
Money tendered by the Lessee after the Termination of this Lease and
accepted by the Lessor may be applied in the manner the Lessor
decides. The acceptance of Rent or other Money by the Lessor is not a
waiver of a preceding breach or an acceptance of the repudiation of
this Lease by the Lessee. An attempt by the Lessor to mitigate its
loss is not a surrender by operation of law or a waiver of the
Lessee's breach or an acceptance of the Lessee's repudiation of this
Lease.
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15. HOLDING OVER
If the Lessee with the consent of the Lessor continues in possession of the
Premises after Termination the Lessee is a monthly tenant of the Premises
and the Tenancy:
(a) may be terminated by either party giving to the other at least one (1)
month's notice expiring on any day;
(b) is to be at the monthly rent which is equal to 1/12th of the Rent for
the period immediately preceding Termination increased by five percent
(5%); and
is otherwise on the same terms and conditions as this Lease except any
option to require the Lessor to grant a new lease of the Premises.
16. SUPPLIES OF SERVICES
16.1 Indirect Supplies
If the Lessor supplies a Service to the Lessee and the Lessee fails to
pay any moneys payable to the Lessor for a Service within fourteen
(14) days of demand being made:
(a) the Lessor may terminate the supply of that Service until all
moneys payable have been paid with all Interest payable; and
(b) the Lessor is not liable to the Lessee for any loss or damage
caused or contributed to by the termination.
16.2 Direct Supplies
If any Service is not provided by the Lessor, the Lessee shall make
the Lessee's own arrangements direct with the relevant supply
authority.
17. NAME OF BUILDING
17.1 If the Premises comprise the whole of the Land the Lessee may during
the Term affix a sign of the Lessee's choice on the outside of the
Building provided that the Lessee first obtains any necessary consent
of an Authority.
17.2 On Termination, clause 10.2 applies to the sign.
18. RENT REVIEW
18.1 Rent Review
On each Rent Review Date, the Rent is to be agreed between the Lessor
and the Lessee and failing agreement, to be reviewed in the manner set
out in this clause 18. Under no circumstances shall the rent at
anytime be calculated or set for an amount less than the Rent
applicable for the period prior to the Rent Review date in question.
18.2 Lessor's proposed new Rent
Not earlier than three (3) months before each Rent Review Date the
Lessor may give to the Lessee a notice proposing the new Rent that is
to apply from and including the relevant Rent Review Date.
Failure to give a notice under this clause 18.2 before a Rent Review
Date does not prevent the Lessor from giving the notice after the Rent
Review Date.
18.3 Lessee disputing Xxxxxx's proposed new Rent
If the Lessee does not agree to the proposed new Rent, the Lessee
shall, within ten (10) Business Days after the date of service of the
Lessor's notice of which time is of the essence, give to the Lessor
written notice disputing the proposed new Rent.
18.4 Deemed acceptance of proposed new Rent
If the Lessee does not give the dispute notice the Lessee is taken to
agree to the Xxxxxx's proposed new Rent.
18.5 Application of proposed new Rent
If the Lessee agrees to or is taken to agree to the Xxxxxx's proposed
new Rent, then that proposed new Rent applies from and including the
relevant Rent Review Date.
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18.6 Determination of Rent
If the Lessee gives a dispute notice to the Lessor as specified in
clause 18.3, then the Rent applicable from and including the relevant
Rent Review Date is to be the Rent determined in accordance with Item
11 of the Particulars.
18.7 Fair Market Rent
The Fair Market Rent of the Premises is to be determined by a Valuer
appointed by the President for the time being of the Australian
Institute of Valuers and Land Economists Incorporated (WA Division) at
the request of either the Lessor or the Lessee:
(a) having regard to the terms of this Lease;
(b) assuming the Lessee and the Lessor have complied with all the
terms of this Lease;
(c) assuming the Lessor is a willing but not anxious landlord and the
Xxxxxx is a willing but not anxious tenant and that the Lessee is
being offered the Premises with vacant possession;
(d) having regard to the current rental value of premises similar to
the Premises; and
(e) taking no account of:
(i) the value of any personal goodwill attributable to the
Lessee's Business and the value of the Lessee's Property;
(ii) any temporary disturbance resulting from maintenance of any
part of the Premises or the Lessor's plant and equipment at
any time carried out by the Lessor;
(iii) any value attaching to any licence or permit in respect of
the Lessee's Business;
(iv) the value of permanent structural improvements erected or
installed at the Lessee's expense and which the Lessee may
not remove at termination; and
(f) having regard to all other relevant valuation principles.
18.8 Valuer as expert
In determining the Fair Market Rent, the Appointed Valuer is to act as
an expert and not an arbitrator and the Appointed Valuer's
determination is conclusive and binding on the Lessor and the Lessee.
18.9 Valuer's costs
The Lessor and the Lessee shall pay the Appointed Valuer's costs in
equal shares.
18.10 CPI Rent
(a) The CPI Rent on a Rent Review Date is determined in accordance
with the following formula:
CPI Rent = R x C
P
Where R = the Rent payable immediately prior to the
relevant Rent Review Date
C = the Current CPI
P = the Previous CPI.
(b) If on a Rent Review Date the CPI number has not been published,
or in the Lessor's opinion the CPI has materially changed since
the later of the Date of Commencement or the last preceding Rent
Review Date, the Lessor may appoint an actuary from the Fellows
of the Institute of Actuaries of Australia to select or determine
an index which accurately reflects changes in the prevailing
levels of prices in the category dealt with by the CPI (before
any material change) between the later of the Date of
Commencement or the last preceding Rent Review Date and the
relevant Rent Review Date and the actuary shall use that index to
certify the Current CPI and the Previous CPI.
(c) The actuary's certificate issued under clause 18.10(b) is final
and binding on the Lessor and the Lessee.
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(d) The Lessor and the Lessee shall pay the actuary's costs and
expenses in equal shares.
18.11 Payment of Rent before determination
Until the Reviewed Rent for the Premises is determined, the Lessee
shall pay the Lessor's proposed new Rent. The Reviewed Rent applies
from and including the relevant Rent Review Date and any adjustment as
between the Lessor and the Lessee with respect to the Reviewed Rent
shall be made on the first day of the month following agreement or
determination of the Reviewed Rent.
19. OPTION
If:
(a) the Lessee at least three (3) months but not earlier than six {6)
months prior to the expiry of the Term gives the Lessor notice to
renew the Term for a Further Term; and
(b) no Event of Default has occurred which has not been remedied or
waived; and
(c) the Guarantor executes a guarantee and indemnity in the same terms as
the Guarantee and Indemnity in respect of the Further Term,
the Lessor shall at the Lessee's cost grant the Lessee a lease of the
Premises for the next consecutive Further Term at the Rent and on the terms
and conditions of this Lease other than this right of renewal unless there
is more than one Further Term in which case the number of Further Terms is
reduced by one.
20. DESTRUCTION OR DAMAGE TO BUILDING OR PREMISES
20.1 Procedure following destruction or damage
If the Building is damaged or destroyed so that the Premises are
rendered substantially unfit for occupation and use or the Lessee's
Rights are substantially interfered with then the Lessor shall give a
notice to the Lessee within three (3) weeks after the damage which
either:
(a) terminates this Lease on a date that is not less than one (1)
month after the date of service of the notice but not more than
three (3) months after the damage occurred; or
(b) informs the Lessee of the Lessor's intention to rebuild the
Building or that part damaged and how long it is estimated to
take.
20.2 Lessee's right to terminate Lease
The Lessee may terminate this Lease by notice to the Lessor if:
(a) the Lessor notifies the Lessee under clause 20.1 (b) that the
estimated time to rebuild the Building exceeds three (3) months
from the date of the damage;
(b) the Lessor gives a notice under clause 20.1(b) and does not
restore or reinstate the Building or make the Premises fit for
use by the Lessee within the estimated time and continues to fail
to restore or reinstate the Premises or the Building so as to
make the Premises fit for use within one (1) month after the
Lessee gives to the Lessor a notice of intention to terminate
this Lease;
(c) the Lessor does not comply with clause 20.1;or
(d) the Premises remain unfit for occupation and use for a period of
at least three (3) months.
20.3 No liability as a result of termination
No liability attaches to the Lessor or the Lessee as a result of the
termination of this Lease under clause 20.
20.4 Abatement of Rent
If:
(a) the Building is damaged or destroyed so that the Premises are
rendered substantially unfit for occupation and use or the
Lessee's Rights are substantially interfered with; and
(b) payment of insurance money in respect of the damage or
destruction is not at any time refused or withheld in whole or in
part as a result of any act or omission of the Lessee,
the Rent or a fair and just proportion according to the nature and
extent of the damage sustained will from the date of damage or
destruction until the Premises are reinstated or restored xxxxx and
cease to be payable.
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21. ACT BY AGENTS
All acts and things which the Lessor is required or empowered to do under
this Lease may be done by the Lessor or the solicitor, agent, contractor or
employee of the Lessor.
22. LESSEE LIABLE FOR LICENSEES
The Lessee is liable for all acts or omissions of Licensees.
23. ASSIGNMENT, SUBLETTING AND CHARGING
23.1 Prohibition
The Lessee may not grant to any person any interest in the Premises or
in this Lease including without limitation, an assignment, a sublease
or any other right to possess, use or occupy the Premises, or a
charge, without the Lessor's consent.
23.2 Lessee's obligations
If the Lessee wishes to assign or sublet any interest in the Premises
or in this Lease, then the Lessee shall apply to the Lessor for its
consent, at least twenty eight (28) days before the proposed date of
change in possession of the Premises.
23.3 Conditions of Xxxxxx's consent to assignment
The Lessor shall consent to a proposed assignment if:
(a) the Lessee complies with clause 23.2;
(b) the Lessor is satisfied that the proposed assignee is a
respectable and responsible person of good financial standing the
onus of satisfying the Lessor in respect of those criteria being
on the Lessee;
(c) all Money then due has been paid and there is no existing
unremedied breach of the Lessee's Covenants;
(d) the Lessee procures the execution by the proposed assignee of a
deed of assignment to which the Lessor is a party prepared and
completed by the Lessor's solicitors at the cost of the Lessee in
all respects;
(e) the assignment contains a covenant by the assignee with the
Lessor to pay all Money and to perform and observe the Lessee's
Covenants;
(f) the Lessee has paid to the Lessor:
(i) the Lessor's reasonable expenses incurred in making
enquiries to satisfy itself concerning matters specified in
clause 23.3{b); and
(ii) the Lessor's costs and expenses in connection with the
approval, preparation, negotiation, execution, stamping,
registration and completion of the assignment and all
relevant stamp duty;
(g) any guarantee required under clause 23.11 is provided in
accordance with that clause;
(h) no Event of Default has occurred which has not been remedied or
waived;
(i) the Lessee has withdrawn any caveat lodged by the Lessee in
respect of its interest in the Premises; and
(j) all rent reviews due as at or within thirty (30) days after the
date of the change in possession of the Premises have been
completed.
23.4 Conditions of Lessor's consent to subletting
The Lessor shall consent to a proposed subletting if:
(a) the Lessee complies with clause 23.2;
(b) the Lessor is satisfied that the proposed sublessee is a
respectable and responsible person of good financial standing the
onus of satisfying the Lessor in respect of those criteria being
on the Lessee;
(c) the Lessee procures the execution by the proposed sublessee of a
sublease;
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(d) the sublease:
(i) is approved by the Lessor;
(ii) is not inconsistent with this Lease; and
(iii) contains:
(A) provision for the review of the rent reserved by the
sublease on the basis and on the dates on which the
Rent is to be reviewed under this Lease;
(B) a covenant prohibiting the sublessee from doing or
allowing any act or thing in relation to the sublet
premises inconsistent with this Lease;
(C) a condition for re-entry by the sublessor on breach of
any covenant by the sublessee; and
(D) the same restrictions on assignment, subletting,
charging or parting with possession of the sublet
premises as this Lease contains;
(e) the Lessee has paid to the Lessor:
(i) the Lessor's reasonable expenses incurred in making
enquiries to satisfy itself concerning matters specified in
clause 23.4(b) and
(ii) the Lessor's costs and expenses in connection with the
approval, preparation, negotiation, execution, stamping,
registration and completion of the sublease and all relevant
stamp duty;
(f) any guarantee required under clause 23.11 is provided in
accordance with that clause.
23.5 No possession until consent
The Lessee may not give possession of or allow the proposed assignee
or sublessee to occupy the Premises until the Lessor notifies the
Lessee of its consent to the proposed assignment or sublease and the
deed of assignment or sublease has been executed by the proposed
assignee or sublessee and returned to the Lessor.
23.6 Consent to charge
If the Lessor consents to a charge by the Lessee of this Lease or of
any of the fixtures which are Xxxxxx's Property, that consent will be
in a form approved by the Lessor in its absolute discretion.
23.7 Lessee remains liable
The Lessee remains fully liable under this Lease during the Term
(including any Further Term) if the Lessee grants an interest in the
Premises or in this Lease, including without limitation, an
assignment, a sublease or any other right to possess, use or occupy
the Premises, to any person whether or not the Lessee has obtained the
Lessor's consent.
23.8 Payments
The only person entitled to receive payments from the Lessor under
this Lease is the person who is the Lessee at the time those payments
are made. That person is entitled to receive those payments even if
the person was not the Lessee during any part of the period to which
those payments relate. Each person who assigns this Lease releases the
Lessor from liability to pay that person any amount under this Lease.
23.9 Change in shareholding
If the Lessee is a corporation the shares in which are not quoted on
any Stock Exchange in Australia, any change in control of the Lessee
(or if the Lessee is a subsidiary, any change in control of its
holding company) is taken to be an assignment of the Lessee's interest
in this Lease. In this clause:
(a) "change in control" means change in control of the composition of
the board of directors or control of more than 50% of the shares
with the right to vote in general meetings of the company; and
(b) words used in this clause and defined in the Corporation Laws of
Western Australia have the meanings given to them in that Law.
23.10 Exclusion of the Property Law Act
Sections 80 and 82 of the Property Law Act 1969 are excluded from this
Lease.
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23.11 Guarantees required
In the case where the proposed assignee or sublessee is a corporation
the shares in which are not quoted on any Stock Exchange in Australia,
the Lessee shall obtain a guarantee from the principal director or
majority shareholder for the benefit of the Lessor of:
(a) in the case of an assignment, the observance and performance by
the assignee or the Lessee's Covenants; and
(b) in the case of a sublease, the observance and performance by the
sublessee of the Lessee's Covenants except the covenant to pay
the Money.
23.12 Covenants are supplementary
The covenants and agreements on the part of any assignee or sublessee
are supplementary to the Lessee's Covenants and do not relieve the
Lessee from the Lessee's Covenants.
24. GUARANTEE AND INDEMNITY
24.1 Guarantee
The Guarantor guarantees unconditionally and irrevocably to the Lessor
the due and punctual payment by the Lessee to the Lessor of all Money
and the due observance and performance of the Lessee's Covenants.
24.2 Indemnity
As a separate undertaking, the Guarantor:
(a) Indemnifies unconditionally and irrevocably the Lessor against
all loss, liability, cost or expense (collectively "the Lessor's
Loss") incurred or suffered by the Lessor arising from or in
connection with any Event of Default or as a consequence of a
disclaimer of this Lease by a liquidator or trustee of the
Lessee; and
(b) as principal debtor agrees to pay to the Lessor on demand a sum
equal to the amount of the Lessor's Loss.
24.3 Continuing guarantee and indemnity
The guarantee and indemnity contained in this clause 24:
(a) is a continuing guarantee and indemnity and not discharged by any
intermediate payment or settlement of accounts; and
(b) continues in full force and effect during the Term and while the
Lessee occupies or is entitled to occupy the Premises under this
Lease or any other form of tenancy or right of occupation or as a
trespasser or other unauthorised occupier or holds an equitable
interest in the Premises under an agreement for lease or as a
periodical tenant or is holding over under this Lease,
until the Guarantor is expressly released by the Lessor.
24.4 Waiver of prior proceedings
The Guarantor's obligations under this clause 24 are principal
obligations and the Lessor is not required to commence proceedings or
enforce its rights against the Lessee before claiming under this
guarantee and indemnity.
24.5 Liability and rights not affected
The Guarantor's obligations under this clause 24 are not affected by
anything which might otherwise affect them under the law relating to
sureties, including but not limited to, one or more of the following:
(a) the Lessor granting time or any other concession to or
compromising with or releasing in any way the Lessee or a
Co-surety;
(b) acquiescence, delay, acts or omissions on the part of the Lessor;
(c) a variation of this Lease with or without the consent of the
Guarantor;
(d) the death, mental or physical disability, insolvency or
dissolution of the Lessee or any Co-surety;
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(e) the entry by the Lessee into any arrangement, assignment or
composition for the benefit of creditors, liquidation, scheme of
arrangement, deed of company arrangement, reduction of capital,
capital reconstruction, or the appointment of a receiver or
receiver and manager of the Lessee whether by the court or under
the powers contained in any instrument or the appointment of a
voluntary administrator by the Lessee;
(f) the fact that a Co-surety may never execute this Lease or that
the execution of this Lease by any Co-surety is void or voidable;
(g) the invalidity or unenforceability of an obligation or liability
of the Lessee or a Co-surety under this Lease;
(h) a disclaimer of this Lease by a liquidator or trustee of the
Lessee or any other person; and
(i) the Lessor releasing, disposing of or dealing in any other way
with any security interest it may hold which is given by the
Lessee or any Co-surety.
24.6 Guarantor not to prove in competition
The Guarantor shall not prove or claim in any bankruptcy, liquidation,
composition, arrangement or assignment of or in relation to the Lessee
in competition with the Lessor and the Guarantor holds in trust for
the Lessor any proof or claim any dividend received by it until all
Moneys have been paid.
24.7 Reinstatement of guarantee
If a claim that a payment to the Lessor in connection with this Lease
is void or voidable under laws relating to insolvency or protection of
creditors is upheld, conceded or compromised, the Lessor is
immediately entitled as against the Guarantor to the rights to which
it would have been entitled under this clause if all or part of the
payment had not been made.
24.8 Costs and expenses
The Guarantor shall pay to the Lessor on demand the Lessor's costs and
expenses, including legal costs and expenses relating to any action in
connection with this guarantee and indemnity including its enforcement
and money paid to the Lessor by the Guarantor is to be applied firstly
against costs and expenses payable under this clause 24.8 and then
against other obligations under this guarantee and indemnity.
24.9 Assignment
If the benefit of this Lease is transferred or assigned by the Lessor
to any person, the benefit of this guarantee and indemnity extends to
and is taken to be assigned to and enforceable by the Lessor's
transferee or assignee.
25. LESSEE'S TRUST
If the Lessee enters into this Lease as trustee of a trust ("Trust"),
the Lessee:
(a) confirms that it enters into this Lease as trustee of the Trust
both for its beneficiaries and for itself and in this Lease, each
reference to the Lessee is a reference to it in each capacity;
and
(b) warrants to the Lessor that:
(i) it is the only trustee of the Trust;
(ii) no action has been taken or proposed to remove it as trustee
of the Trust;
(iii) it has power under the trust deed relating to the Trust to
enter into and observe the Lessee's Covenants;
(iv) it has a right to be fully indemnified out of the trust fund
of the Trust in respect of its obligations to perform and
observe the Lessee's Covenants;
(v) the assets of the Trust are sufficient to satisfy the
Lessor's right of indemnity in clause 9.1;
(vi) it is not in default under the terms of the Trust; and
(vii) the Lessor's Rights rank in priority to the interests of
the beneficiaries of the Trust.
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26. NOTICE
All notices, requests, demands, consents, approvals, agreements or other
communications to or by a party to this Lease:
(a) shall be in writing:
(i) (if served or made in person or by post) addressed to:
X. the address of the recipient shown in this Lease;
B. if the recipient is a corporation, its registered office or
principal place of business; or
C. any other address as the recipient may have notified the
sender; or
(ii) (if served or made by facsimile) addressed to the facsimile
number specified in Item 17 of the Particulars or any number
nominated by the recipient to the sender;
(b) may be signed:
(i) if given by a natural person, by the sender or his or her
solicitor; or
(ii) if given by a corporation, by a director, secretary, manager or
solicitor for the sender;
(c) is deemed duly given or made:
(i) (if served or made in person or by post) when delivered to the
recipient at an address specified in paragraph (a)(i); or
(ii) (if served or made by facsimile) upon transmission being
completed.
but if delivery or receipt is later than 4.00p.m. (local time) on a
day on which business is generally carried on in the place to which
the communication is sent, it is deemed to have been duly given or
made at the commencement of business on the next such day in that
place.
27. SPECIAL CLAUSES
The Terms and Conditions include the special clauses in Item 18 of the
Particulars (if any) and if there is any inconsistency between the special
clauses and the other Terms and Conditions, the special clauses prevail to
the extent of the inconsistency.
28. PROPER LAW AND ARBITRATION
28.1 Proper Law
This Lease is governed by the Laws of Western Australia.
28.2 Arbitration
(a) Except as otherwise provided, any dispute arising out of this
Lease is to be determined by a single arbitrator under the
provisions of the Commercial Arbitration Act 1985 and the Lessor
and Xxxxxx may each be represented at their own cost and expense
by a legal practitioner of their choice; and
(b) the Lessee shall pay the Money without abatement or deduction
until whichever is the earlier of:
(i) the date of the award of the arbitrator; or
(ii) agreement between the parties,
when the Lessor will refund to the Lessee any money paid by the
Lessee not required to be paid within the terms of the award of
the arbitrator or the agreement between the Lessor and the
Lessee.
29. STRATA TITLE PROVISIONS
29.1 Strata Title provisions
If at any time the Premises comprise a strata lot this Lease is taken
to be amended as follows:
(a) Xxxxx of Lease and Xxxxxx's Rights
(i) The grant of this Lease is subject to all easements rights
reservations and powers mentioned in the
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Strata Titles Act so far as they are not excluded or
modified and to all easements shown on the strata plan.
(ii) The Lessee and the Licensees have the right in common with
the Lessor and the Registered Proprietors to use the common
property on the strata plan subject to the by-laws of the
strata company and all rules and regulations made by the
strata company.
(b) Definitions:
(i) The following definitions are added:
"Strata Titles Act" means the Strata Titles Act 1985;
"Registered Proprietor" means the registered proprietor of a
lot comprised in a strata plan; and words and expressions
defined in the Strata Titles Act have the same meaning in
this clause.
(ii) The following definitions in clause 1 are modified:
"Building" to mean the building in which the Premises or
part of the Premises are situated;
"Event of Default" to include the following:
"(f) if the strata company lawfully institutes legal
proceedings against the Lessor as the result of default
on the part of the Lessee in the payment of any
contribution levied by the strata company pursuant to
Section 38 of the Strata Titles Act or in carrying out
any obligation imposed on the Lessor under Section 38
of the Strata Titles Act.".
(c) Strata company
The Lessee shall pay to the Lessor all the contributions levied
by the strata company.
(d) By-laws, rules and regulations
The Lessee shall comply on time with all the strata company's
by-laws and all rules and regulations made by the strata company
under its by-laws and the Strata Titles Act.
(e) Air Conditioning Plant
Clause 4.4 does not apply.
(f) Named Building
Clause 17 does not apply.
(g) Destruction or damage to Building or Premises
"20.1 Procedure following destruction or damage
If the Building is damaged or destroyed so that the
Premises are rendered substantially unfit for
occupation and use or the Lessee's Rights are
substantially interfered with then the Lessor shall
give a notice to the Lessee within three (3) weeks
after the damage which either:
(a) terminates this Lease on a date that is not less
than one (1) month after the date of service of
the notice but not more than three (3) months
after the damage occurred; or
(b) informs the Lessee of the strata company's
intention to rebuild the Building or that part
damaged and how long it is estimated to take.
20.2 Lessee's right to terminate Lease
The Lessee may terminate this Lease by notice to the
Lessor if:
(a) the Lessor notifies the Lessee under clause
20.1(b) that the estimated time to rebuild the
Building exceeds three (3) months from the date of
the damage;
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(b) the Lessor gives a notice under clause 20.1 (b)
and the strata company does not restore or
reinstate the Building or make the Premises fit
for use by the Lessee within the estimated time
and continues to fail to restore or reinstate the
Premises or the Building so as to make the
Premises fit for use within one (1) month after
the Lessee gives to the Lessor a notice of
intention to terminate this Lease;
(c) the Lessor does not comply with clause 20.1; or
(d) the Premises remain unfit for occupation and use
for a period of at least three (3) months.
20.3 No liability as a result of termination
No liability attaches to the Lessor or the Lessee as a
result of the termination of this Lease under clause
20.
20.4 Abatement of Rent
If:
(a) the Building or any part of the Building is so
destroyed or damaged as to render the Premises
substantially unfit for occupation and use or
interfere substantially with the Lessee's Rights;
and
(b) payment of insurance money in respect of the
damage or destruction is not at any time refused
or withheld in whole or in part as a result of any
act or omission of the Lessee,
the Rent or a fair and just proportion according to the
nature and extent of the damage sustained will from the
date of damage or destruction until the Building is
reinstated or restored xxxxx and cease to be payable."
(h) Further provisions
(i) Neither this Lease nor the Term is affected by any order
made by the Supreme Court under Part III of the Strata
Titles Act varying the strata scheme or substituting a new
strata scheme for or terminating the strata scheme unless
the order is for the termination of the strata scheme in
consequence of damage to or the destruction of the Building.
(ii) The Lessee has no claims or rights against the Lessor in
consequence of the exercise by the strata company of any of
the strata company's rights, duties or powers under the
Strata Titles Act.
(iii) Where any right or power granted to the Lessor or
obligation imposed upon the Lessor under this Lease may only
be exercised or carried out by the strata company or with
the approval of the strata company, then the Lessor has no
duty to perform or observe that obligation unless the strata
company gives any necessary approval and in the appropriate
case, must use reasonable endeavours to ensure that the
strata company carries out or observes that obligation. For
the purposes of this provision, "reasonable endeavours" is
limited to the exercise by the Lessor of its voting rights
in relation to the act or matter in question.
30. MISCELLANEOUS
30.1 Accrual on a daily basis
Money accrues daily under this Lease.
30.2 Statutory Powers
The powers conferred on the Lessor by or under any Act are in addition
to the Lessor's Rights except to the extent inconsistent with this
Lease.
30.3 Moratorium not to apply
Unless application is mandatory by law the provisions of any Act do
not apply to this Lease so as to abrogate, extinguish, postpone or
otherwise prejudicially affect the Lessor's Rights.
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30.4 Severance
If any part of this Lease is, or becomes, void or unenforceable that
part is severed from this Lease so that all parts that are not void or
unenforceable remain in full force and effect and are unaffected by
that severance.
30.5 Waivers
(a) A failure to exercise or delay in exercising any right, power or
privilege in this Lease by any party is not a waiver of that
right, power or privilege.
(b) A partial exercise of any right, power or privilege does not
preclude any further exercise of that right, power or privilege,
or the exercise of any other right, power or privilege.
30.6 Variation
This Lease may be varied only by deed executed by all of the parties.
30.7 Further assurances
The parties shall execute and do all acts and things necessary or
desirable to implement and give full effect to the provisions and
purpose of this Lease.
30.8 Counterparts
This Lease may be executed in any number of counterparts each of which
is an original and all of which constitute one and the same
instrument.
30.9 Payment of Money
Any sum of money to be paid to the Lessor must be paid to the Lessor
at the Address or as otherwise directed by the Lessor by notice from
time to time.
PAGE 23
(REIWA LOGO) APPROVED BY
THE REAL ESTATE INSTITUTE
OF WESTERN AUSTRALIA (INC.)
FOR USE BY REIWA MEMBERS
(C) REIWA 1996
R400-2/00 (Stamp Office Use Only)
STANDARD COMMERCIAL/INDUSTRIAL
PROPERTY LEASE (PART B)
Not for retail premises or other premises where the Commercial Tenancy
(Retail Shops) Agreement Act 1985 applies
PARTICULARS OF THE LEASE
- This document incorporates The Real Estate Institute of the Western
Australia (Inc.) 1996 General Terms and Conditions of the Lease contained
in the document attached.
- Before using this document please read the notes at the front of the Real
Estate Institute of Western Australia (Inc.) 1996 General Terms and
Conditions of the Lease
THIS LEASE is made 1st July 2005
1. LESSOR:
Full Name: SAVTERNE PTY LTD SUPERANNUATION FUND
Address: 0 XXXXXXXXXXX XXXXX, XXXXXXX XX 0000
Telephone: Work 0000 0000 Home ___________________________________
Facsimile 9403 3022 Email xxxxxxx@xxxxxxx.xxx.xx
ACN 009 012 202 ABN 16528 527 624
2. LESSEE:
Full Name: XXXXX SYSTEMS PTY LTD
Address: __________________________________________________________________
Telephone: Work _____________________ Home ____________________________
Facsimile _____________________________ Email ___________________________
Full Name: ________________________________________________________________
Address: __________________________________________________________________
Telephone: Work _____________________ Home ____________________________
Facsimile _____________________________ Email ___________________________
(If a coporation name) Name: ______________________________________________
ACN 009 299 870 ABN _____________________________
Address of Registered Office: _____________________________________________
Telephone: ____________________________
Facsimile _____________________________ Email ___________________________
(REIWA LOGO) (C) COPYRIGHT REIWA 1996 - Unauthorised copying prohibited
3. GUARANTOR.
Full Name: ________________________________________________________________
Address: __________________________________________________________________
Telephone: Work _____________________ Home ____________________________
Facsimile _____________________________ Email: __________________________
Full Name: ________________________________________________________________
Address: __________________________________________________________________
Telephone: Work _____________________ Home ____________________________
Facsimile _____________________________ Email:___________________________
4. PREMISES:
*The Land
*That part of the Land situate at and known as XXXX 0, 00 XXXX XXXXXX XXXX
XXXXXXX PARK
which is depicted and coloured on the annexed plan.
*Delete if inapplicable
5. LAND:
Lot 232 on Diagram/Pan/Strata Plan 59550 and being the whole of the land in
Certificate of Title
Volume 1572 Folio 724
6. TERM:
36 months commencing on the Date of Commencement.
7. DATE OF COMMENCEMENT:
1st JULY 2005
8. FURTHER TERMS:
36 months commencing on 1st JULY 2008
__ months commencing on ________ 20__
9. RENT:
From the Date of Commencement until varied the Rent is $28,599.96 per
annum, payable by instalments of $2383.33 per month in advance on the first
day of each month. (Rent is exclusive of GST, see clause 17)
10. RENT REVIEW DATES:
During the Term: 1st JULY 2006 __________________ 20__
1st JULY 2007 __________________ 20__
________ 20__
During the Further Terms: 1st JULY 2008 __________________ 20__
1st JULY 2009 __________________ 20__
1st JULY 2010 __________________ 20__
1st JULY 2011 __________________ 20__
________ 20__ __________________ 20__
11. METHOD OF RENT REVIEW:
Subject to clause 18 the Rent applicable from and including each Rent
Review Date is the greatest of:
* Fair Market Rent on that Rent Review Date
* CPI Rent on that Rent Review Date
* the Rent applicable immediately before that Rent Review Date increased by
___________% of that Rent.
* Delete if inapplicable
(REIWA LOGO) (C) COPYRIGHT REIWA 1996 - Unauthorised copying prohibited
12. ADDRESS:
The address of the Lessor shown on this lease 0 XXXXXXXXXXX XXXXX XXXXXXXX
XX 0000
13. RATE OF INTEREST:
15% per annum calculated on a daily basis.
14. PAINTING AND DECORATING INTERVALS:
Within three (3) months before the end of each Term and Further Term
granted or at earlier Termination.
15. PUBLIC RISK INSURANCE:
$5,000,000
16. PERMITTED USE:
Any lawful use for which the Premises are designed or suited without change
of zoning by the local authority provided this Lease does not thereby
become subject to the Commercial Tenancy (Retail Shops) Agreements Act
1985.
17. GST:
(a) In this clause the term "GST" means any goods and services tax imposed
under A New Tax System (Goods and Services) Act 1999 ("the GST Act")
and its transitional and amending acts and regulations which is or may
be levied or assessed or becomes payable in respect of rent, outgoings
or in connection with the supply of the leased premises or any goods,
services, facilities or other things by the Lessor to the Lessee under
this contract or any extension, renewal or holding over.
(b) The Lessee shall pay to the Lessor any GST payable by the Lessor in
accordance with the requirements of the GST Act. Such payments are to
be made by the Lessee prior to the date for payment of the GST by the
Lessor or on the dates for the payment of rent, whichever is the
earlier. The Lessee hereby indemnifies the Lessor in relation to the
payment of any GST.
(c) Any rent or other payment obligation stated or referred to in this
contract does not include GST unless it is expressly included and GST
must be paid in addition to that rent or payment obligation. Unless
GST is expressly included, the consideration for any supply by the
Lessor to the Lessee is increased by an amount equal to the amount of
that consideration multiplied by the rate at which GST is imposed in
respect of that supply.
(d) The Lessor must provide to the Lessee a GST tax invoice as required by
the GST Act.
18. SPECIAL CLAUSES:
OUTGOINGS PLUS GST PAYABLE IN ADDITION TO RENT (ESTIMATED AT $5,975.25 FOR
2004-05 FINANCIAL YEAR)
EXECUTED by the parties as a deed.
THE COMMON SEAL of )
)
(ACN _____________________) )
was affixed in accordance with )
its Articles of Association )
in the presence of:- )
/s/ XXXXX XXXXXXX /s/ XXXXXX XXXXXXXXXX
------------------------------------- ----------------------------------------
Director Director/Secretary*
XXXXX XXXXXXX XXXXXX XXXXXXXXXX
Full Name (Please Print) Full Name (Please Print)
(REIWA LOGO) (C) COPYRIGHT REIWA 1996 - Unauthorised copying prohibited
* Delete if inapplicable
THE COMMON SEAL of ) [SEAL]
)
(ACN _____________________) )
was affixed in accordance with )
its Articles of Association )
in the presence of:- )
/s/ Xxxxxxxx Xxxxxxx /s/ Xxxxxxxxxx Xxxxxxx
------------------------------------- ----------------------------------------
Director Director/Secretary*
/s/ Xxxxxxxx Xxxxxxx /s/ Xxxxxxxxxx Xxxxxxx
------------------------------------- ----------------------------------------
Full Name (Please Print) Full Name (Please Print)
* Delete if inapplicable
SIGNED as a deed by )
In the presence of:- )
-------------------------------------
Signature of Witness
-------------------------------------
Print full name of Witness
-------------------------------------
-------------------------------------
Address of Witness
-------------------------------------
Occupation of Witness
SIGNED as a deed by )
In the presence of:- )
-------------------------------------
Signature of Witness
-------------------------------------
Print full name of Witness
-------------------------------------
-------------------------------------
Address of Witness
-------------------------------------
Occupation of Witness
A true copy of this document has been received by each of the signatories hereto
- together with a copy of the Real Estate Institute of Western Australia (Inc.)
1996 General Terms and Conditions of the Lease in the attached document.
/s/ X. Xxxxxxx /s/ X. Xxxxxxx
------------------ ------------------ ------------------ -----------------
COPYRIGHT
The copyright of this contract is the property of the Real Estate, Institute of
Western Australia (Inc.), and neither the form nor any part of it may be used or
reproduced by any method whatsoever or incoroprated by reference or in any
manner whatsoever in any other document without the consent of the Institute
2/00
(REIWA LOGO) APPROVED BY
THE REAL ESTATE INSTITUTE
OF WESTERN AUSTRALIA (INC.)
FOR USE BY REIWA MEMBERS
(C) REIWA 1996
R400-2/00 (Stamp Office Use Only)
STANDARD COMMERCIAL/INDUSTRIAL
PROPERTY LEASE (PART B)
Not for retail premises or other premises where the Commercial Tenancy
(Retail Shops) Agreement Act 1985 applies
PARTICULARS OF THE LEASE
- This document incorporates The Real Estate Institute of Western Australia
(Inc.) 1996 General Terms and Conditions of the Lease contained in the
document attached.
- Before using this document please read the notes at the front of the Real
Estate Institute of Western Australia (Inc.) 1996 General Terms and
Conditions of the Lease.
THIS LEASE IS MADE 1st JULY 2005
1. LESSOR:
Full Name: SAVTERNE PTY LTD SUPERANNUATION FUND
Address: 0 XXXXXXXXXXX XXXXX, XXXXXXXX XX 0000
Telephone: Work 0000 0000 Home ____________________________
Facsimile 9403 3022 Email xxxxxxx@xxxxxxx.xxx.xx
ACN 009 012 202 ABN 16528 527 624
2. LESSEE:
Full Name: XXXXX SYSTEMS PTY LTD
Address: __________________________________________________________________
Telephone: Work _____________________ Home ____________________________
Facsimile _____________________________ Email ___________________________
Full Name: ________________________________________________________________
Address: __________________________________________________________________
Telephone: Work _____________________ Home ____________________________
Facsimile _____________________________ Email ___________________________
(If a coporation name) Name: ______________________________________________
ACN 009 299 870 ABN _____________________________
Address of Registered Office: _____________________________________________
Telephone: ____________________________
Facsimile _____________________________ Email ___________________________
(REIWA LOGO) (C) COPYRIGHT REIWA 1996 - Unauthorised copying prohibited
3. GUARANTOR:
Full Name: ________________________________________________________________
Address: __________________________________________________________________
Telephone: Work _____________________ Home ____________________________
Facsimile _____________________________ Email ___________________________
Full Name: ________________________________________________________________
Address: __________________________________________________________________
Telephone: Work _____________________ Home ____________________________
Facsimile _____________________________ Email ___________________________
4. PREMISES:
*The Land
*That part of the Land situate at and known as XXXX 0, 00 XXXX XXXXXX XXXX
XXXXXXX PARC
which is depicted and coloured on the annexed PLAN.
*Delete if inapplicable
5. LAND:
Lot 232 on Diagram/Plan/Strata Plan 59550 and being the whole of the land
in Certificate of Title
Volume 1572 Folio 724
6. TERM:
36 months commencing on Date of Commencement.
7. DATE OF COMMENCEMENT:
1ST JULY 2005
8. FURTHER TERMS:
36 months commencing on 1ST JULY 2008
__ months commencing on ________ 20__
9. RENT:
From the Date of Commencement until varied the Rent is $82,983.60 per
annum, payable by instalments of $6,915.30 per month in advance on the
first day of each month. (Rent is exclusive of GST, see clause 17)
10. RENT REVIEW DATES:
During the Term: 1ST JULY 2006 ____________________________ 20__
1ST JULY 2007 ____________________________ 20__
________ 20__
During the Further Terms: 1ST JULY 2008 ____________________________ 20__
1ST JULY 2009 ____________________________ 20__
1ST JULY 2010 ____________________________ 20__
1ST JULY 2011 ____________________________ 20__
________ 20__ ____________________________ 20__
11. METHOD OF RENT REVIEW:
Subject to clause 18 the Rent applicable from and including each Rent
Review Date is the greatest of:
* Fair Market Rent on that Rent Review Date
* CPI Rent on that Rent Review Date
* the Rent applicable immediately before that Rent Review Date increased
by ___________________% of that Rent.
* Delete if inapplicable
(REIWA LOGO) (C) COPYRIGHT REIWA 1996 - Unauthorised copying prohibited
12. ADDRESS:
The address of the Lessor shown on this Lease 0 XXXXXXXXXXX XXXXX
XXXXXXXX XX 0000
13. RATE OF INTEREST:
15% per annum calculated on a daily basis.
14. PAINTING AND DECORATING INTERVALS:
Within three (3) months before the end of each Term and Further Term
granted or at earlier Termination.
15. PUBLIC RISK INSURANCE:
$5,000,000
16. PERMITTED USE:
Any lawful use for which the Premises are designed or suited without change
of zoning by the local authority provided this Lease does not thereby
become subject to the Commercial Tenancy (Retail Shops) Agreements Act
1985.
17. GST:
(a) in this clause the term "GST means any goods and services tax imposed
under A New Tax System (Goods and Services) Act 1999 ("the GST Act")
and its transitional and amending acts and regulations which is or may
be levied or assessed or becomes payable in respect of rent, outgoings
or in connection with the supply of the leased premises or any goods,
services, facilities or other things by the Lessor to the Lessee under
this contract or any extension, renewal or holding over.
(b) The Lessee shall pay to the Lessor any GST payable by the Lessor in
accordance with the requirements of the GST Act Such payments are to
be made by the Lessee prior to the date for payment of the GST by the
Lessor or on the dates for the payment of rent, whichever is the
earlier. The Lessee hereby indemnifies the Lessor in relation to the
payment of any GST.
(c) Any rent or other payment obligation stated or referred to in this
contract does not include GST unless it is expressly included and GST
must be paid in addition to that rent or payment obligation. Unless
GST is expressly included, the consideration for any supply by the
Lessor to the Lessee is increased by an amount equal to the amount of
that consideration multiplied by the rate at which GST is imposed in
respect of that supply.
(d) The Lessor must provide to the Lessee a GST tax invoice as required by
the GST Act.
18. SPECIAL CLAUSES:
OUTGOINGS AND GST PAYABLE IN ADDITION TO RENT (ESTIMATED AT $15,945,99 FOR
2004-05 FINANCIAL YEAR).
EXECUTED by the parties as a deed.
THE COMMON SEAL of )
)
(ACN) )
was affixed in accordance with )
its Articles of Association )
in the presence of:- )
/s/ XXXXX XXXXXXX /s/ XXXXXX XXXXXXXXXX
------------------------------------- ----------------------------------------
Director Directior/Secretary*
XXXXX XXXXXXX XXXXXX XXXXXXXXX
Full Name (Please Print) Full Name (Please Print)
(REIWA LOGO) (C) COPYRIGHT REIWA 1996 - Unauthorised copying prohibited
* Delete if inapplicable
THE COMMON SEAL of ) [SEAL]
)
(ACN) )
was affixed in accordance with )
its Articles of Association )
in the presence of:- )
/s/ X. Xxxxxxx /s/ Xxxxxxxxxx Xxxxxxx
------------------------------------- ----------------------------------------
Director Directior/Secretary*
/s/ Xxxxxxxx Xxxxxxx /s/ Xxxxxxxxxx Xxxxxxx
------------------------------------- ----------------------------------------
Full Name (Please Print) Full Name (Please Print)
* Delete if inapplicable
SIGNED as a deed by )
in the presence of:- )
-------------------------------------
Signature of Witness
-------------------------------------
Print full name of Witness
-------------------------------------
-------------------------------------
Address of Witness
-------------------------------------
Occupation of Witness
SIGNED as a deed by )
in the presence of:- )
-------------------------------------
Signature of Witness
-------------------------------------
Print full name of Witness
-------------------------------------
-------------------------------------
Address of Witness
-------------------------------------
Occupation of Witness
A true copy of this document has been received by each of the signatories hereto
- together with a copy of the Real Estate Institute of Western Australia (Inc.)
1996 General Terms and Conditions of the Lease in the attached document.
/s/ X. Xxxxxxx /s/ X. Xxxxxxx
------------------ ------------------ ------------------ -----------------
COPYRIGHT
The copyright of this contract is the property of the Real Estate Institute of
Western Australia (Inc), and neither the form nor any part of it may be used or
reproduced by any method whatsoever or incoroprated by reference or in any
manner whatsoever in any other document without the consent of the Institute.
2/00
