Exhibit 10.14
Lease
Welshpool Landowner Pty Ltd
(“Lessor”)
and
Xxxxx Xxxxxx Australia Pty Limited
(“Lessee”)
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Lease |
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Clause |
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Page |
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Table of contents |
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1 Definitions |
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1 |
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2 Grant of Lease |
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6 |
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3 Quiet enjoyment |
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7 |
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4 Easements |
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7 |
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4.1 Purposes for which Lessor may act |
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7 |
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4.2 Rights of Lessor in respect of easements |
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4.3 Easements may not substantially derogate from Lessee’s Rights |
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7 |
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5 Rent |
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7 |
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6 Rent review |
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8 |
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6.1 Definitions |
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6.2 Method of review the rent |
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9 |
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7 Not to cause rent reduction |
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9 |
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8 Goods and services tax |
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10 |
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8.1 Definitions |
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10 |
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8.2 Lessee must pay GST |
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10 |
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8.3 Lessee must pay GST at same time |
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10 |
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8.4 Prices do not include GST |
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10 |
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8.5 Apportionment of GST |
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10 |
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8.6 Statement of GST paid is conclusive |
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10 |
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9 Variable Outgoings |
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11 |
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9.1 Estimate of Lessee’s Proportion of Variable Outgoings |
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11 |
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9.2 Issue of statement of Variable Outgoings |
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11 |
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9.3 Issue of statement of Rates and Taxes |
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11 |
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9.4 Apportionment for periods less than TWELVE (12) months |
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11 |
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9.5 Changes to Variable Outgoings |
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11 |
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9.6 Payment by Lessee |
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11 |
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9.7 Lessor to pay Rates and Taxes |
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11 |
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9.8 Lessor to refund overpayment |
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12 |
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9.9 Lessor may recover taxes |
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12 |
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10 Outgoings separately assessed |
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12 |
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11 Costs and expenses |
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12 |
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11.1 Definition |
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12 |
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11.2 Payment of costs |
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12 |
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12 Interest on overdue money |
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13 |
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13 Lessor to maintain building |
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13 |
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page 1
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Lease |
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Clause |
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14 Lessee to maintain premises |
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14 |
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14.1 General |
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14 |
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14.2 Floor covering |
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14 |
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14.3 Repair promptly |
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14 |
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14.4 Paint and decorate |
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15 |
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14.5 Clean and free from rubbish |
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15 |
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14.6 Pest control |
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15 |
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15 Lessor’s fixtures and the facilities in the premises |
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15 |
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15.1 Maintain |
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15 |
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15.2 Replacements |
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15 |
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15.3 Facilities |
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16 |
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16 Alterations |
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16 |
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16.1 Restriction on alterations |
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16.2 Consent to alterations |
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16.3 Other work necessitated by alteration |
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16 |
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16.4 Asbestos and other harmful substances |
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17 |
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17 Use of the premises |
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17 |
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17.1 Purpose |
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17.2 No warranty as to use |
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17.3 Premises subject to restrictions |
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17.4 Consent of authority needed |
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17 |
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18 Floor overloading |
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18 |
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19 Chemicals and inflammable substances |
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18 |
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20 Environmental covenant |
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18 |
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20.1 Definition |
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18 |
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20.2 Environment |
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18 |
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21 Use of other parts of the Building |
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19 |
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21.1 Restrictions on use |
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19 |
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21.2 Common Areas |
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19 |
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22 Use and enjoyment affecting occupiers |
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19 |
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22.1 Offensive activities |
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22.2 Aerials and amplified noise |
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22.3 Infectious diseases |
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22.4 No smoking |
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22.5 Not to cause obstruction |
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20 |
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23 Miscellaneous restrictions on use |
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20 |
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23.1 Advertisements or notices |
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23.2 Rubbish |
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20 |
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24 Security of the building and the Premises |
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21 |
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page 2
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Lease |
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Clause |
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24.1 Lock Premises |
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21 |
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24.2 Outside doors of Building |
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21 |
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25 Entry by Lessor |
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21 |
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25.1 General |
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21 |
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25.2 Inspect state of repair |
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21 |
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25.3 Comply with authorities |
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25.4 Maintenance, modifications or extensions |
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25.5 Plant and Equipment |
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21 |
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25.6 Interested persons |
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22 |
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25.7 Affix notices |
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22 |
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26 Unauthorised purpose |
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22 |
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27 Plant and equipment |
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22 |
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28 Electrical circuits |
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22 |
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28.1 Not overload |
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22 |
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28.2 Consent to install equipment |
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22 |
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29 Insurance |
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23 |
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29.1 Public liability insurance |
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23 |
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29.2 Insurance of Lessee’s Fixtures |
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23 |
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29.3 Workers’ compensation insurance |
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23 |
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29.4 Glass |
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23 |
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29.5 Supply details etc. |
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23 |
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29.6 Not to invalidate insurance |
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23 |
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30 Lessee’s indemnities |
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24 |
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30.1 Indemnities paramount |
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24 |
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30.2 Indemnity in respect of Lessor’s expenses |
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24 |
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30.3 General indemnity |
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24 |
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31 Lessee’s obligations at risk and expense of Lessee |
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24 |
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32 Limit of Lessor’s liability |
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24 |
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33 Report to Lessor |
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25 |
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33.1 Damage to or defect in Premises |
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25 |
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33.2 Broken glass |
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25 |
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33.3 Malfunction of Plant and Equipment or Facility |
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25 |
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33.4 Circumstance likely to cause damage or danger |
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25 |
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34 Caveats |
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25 |
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34.1 Not lodge absolute caveat |
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25 |
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34.2 Withdraw caveat on Termination |
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25 |
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35 Not impede exercise of Lessor’s rights |
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25 |
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36 Compliance with statutes |
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25 |
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page 3
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Lease |
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Clause |
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37 Default by Lessee |
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26 |
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37.1 Events of default |
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26 |
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37.2 Lessor may retake possession |
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26 |
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37.3 Acceptance of Money Payable not to prejudice Lessor’s Rights |
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27 |
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37.4 Lessor may remedy Lessee’s default |
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27 |
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37.5 Exercise of Lessor’s Rights |
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27 |
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37.6 Essential terms |
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27 |
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37.7 Damages for breach of essential terms |
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28 |
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37.8 Certificate to be conclusive |
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29 |
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37.9 Separate suits |
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29 |
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38 Destruction or damage to building or premises |
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29 |
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38.1 Major Rebuilding Required |
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29 |
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38.2 Abatement of Rent |
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30 |
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38.3 Lessee may Terminate |
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30 |
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39 Option to renew |
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30 |
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40 Holding over |
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30 |
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41 Termination |
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31 |
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41.1 Restoration of the Premises on Termination |
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31 |
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41.2 Yield up and surrender keys |
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31 |
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41.3 Removal of Lessee’s Fixtures |
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31 |
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42 Lessee’s goods left in common areas |
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31 |
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43 Lessee’s fixtures not removed at termination |
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32 |
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43.1 Lessor may remove |
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32 |
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43.2 Lessee to indemnify |
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32 |
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43.3 Property may be sold |
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32 |
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44 Assigning and charging |
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32 |
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44.1 No assignment without consent |
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32 |
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44.2 Exclusion of the Property Law Act |
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32 |
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44.3 Changes in beneficial ownership of shares |
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32 |
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44.4 Consent to assignment |
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32 |
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44.5 Directors or shareholders must guarantee |
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33 |
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44.6 Assignee substitutes for assignor |
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33 |
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44.7 Consent to charge |
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33 |
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44.8 Costs in respect of assigning |
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33 |
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44.9 Consent to sublet |
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33 |
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45 Consents |
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33 |
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46 Act by agents |
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33 |
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47 Lessee liable for permitted persons |
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34 |
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page 4
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Lease |
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Clause |
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48 Notice |
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34 |
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48.1 Definition |
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34 |
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48.2 Form and Service |
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34 |
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49 Proper law |
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35 |
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50 Arbitration |
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35 |
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50.1 Dispute referred to single arbitrator |
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35 |
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50.2 No abatement |
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35 |
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51 Accrual on daily basis |
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35 |
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52 Statutory powers |
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36 |
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53 Moratorium not to apply |
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36 |
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54 Severance |
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36 |
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55 Waivers |
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36 |
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55.1 Failure or delay is not waiver |
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36 |
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55.2 Partial exercise does not preclude further exercise |
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36 |
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56 Variation |
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36 |
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57 Further assurances |
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36 |
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58 Counterparts |
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36 |
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59 Payment of money |
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37 |
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page 5
Lease
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is made on 3 April 2009 between the following parties: |
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Welshpool Landowner Pty Ltd
ACN 108 198 778
of Xxxxx 0, 000 Xxx Xxxxxx Xxxxxxx, Xxxxxxx Xxxxxxxxx 0000
(Lessor) |
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2. |
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Xxxxx Xxxxxx Australia Pty Limited
ACN 084 635 558
of 00 Xxxxxxxxx Xxxxxx Xxxxxxxx, Xxx Xxxxx Xxxxx 0000
(Lessee) |
The parties agree
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Unless otherwise required by the context or subject matter: |
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Address means the address specified in Item 8 of the Schedule or any other address
which the Lessor by notice to the Lessee nominates; |
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Building means the building situated at the corner of Xxxxxx Street and Rutland
Avenue, Welshpool, WA and all associated improvements; |
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Business Day means a day other than a Saturday, Sunday or public holiday in Western
Australia; |
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Common Areas means the parts of the Land and the Building from time to time set aside
by the Lessor: |
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(a) |
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as areas open to the public; |
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(b) |
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for common use by the Occupiers; or |
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(c) |
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for common amenity or convenience; |
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Costs and Expenses means the costs and expenses mentioned in clause 11; |
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Date of Commencement means the date specified in Item 4 of the Schedule; |
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Document means this deed as supplemented, amended or varied from time to time; |
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Encumbrance means a mortgage, charge, xxxx of sale, lien, pledge, easement,
restrictive covenant, writ, warrant or caveat and the claim stated in that caveat
affecting the Land or the Building; |
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Event of Default means an event specified in clause 37.1; |
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Facility means a lavatory, sink, drain or other sewerage or plumbing facility, and a
gas or electrical fitting or appliance in or on the Land or the Building; |
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Final Period means the period from the first day of the final Lease Year to the date
of Termination; |
page 1
Lease
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Further Term means each further term specified in Item 5 of the Schedule; |
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Holding Over means holding over by the Lessee under clause 40; |
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Insured Risk means an event against which property owners customarily insure
including, but not limited to, fire, explosion, earthquake, aircraft, riot, civil
commotion, lightning, xxxxx, xxxxxxx, act of God, fusion, smoke, rainwater, water
leakage, impact by vehicles, machinery breakdown and malicious acts or omissions; |
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Interest means interest at the rate specified in Item 10 of the Schedule; |
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Land means the land described in Item 2 of the Schedule; |
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Lease Year means a period of TWELVE (12) months commencing on July 1 in any year of
the Term or any other period of TWELVE (12) months specified by the Lessor, and
includes where appropriate the Preliminary Period and the Final Period; |
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Lessee’s Covenants means the covenants, agreements and obligations contained or
implied in this Document or imposed by law to be observed and performed by the Lessee; |
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Lessee’s Fixture means each fixture installed in or on the Premises by the Lessee or a
previous occupier of the Premises or any part of the Premises; |
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Lessee’s Proportion means: |
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in respect of land tax and metropolitan region improvement tax; |
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if land tax and metropolitan region improvement tax
are separately charged or assessed in respect of the Premises, the amount
levied, assessed or charged in respect of the Premises; or |
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(2) |
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if land tax and metropolitan region improvement tax
are not separately charged or assessed in respect of the Premises, an
amount which bears the same ratio to the land tax and metropolitan region
improvement tax as the land area of the Premises bears to the total land
area of the Land; and |
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(b) |
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in respect of local authority and water authority charges; |
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(1) |
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if local authority and water authority charges are
separately charged or assessed in respect of the Premises, the amount
levied, assessed or charged in respect of the Premises; or |
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(2) |
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if local authority and water authority charges are
not separately charged or assessed in respect of the Premises, an amount
which bears the same ratio to the local authority and water authority
charges as the Building area of the Premises bears to the total Building
area of the Land; and |
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(c) |
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in respect of Variable Outgoings, an amount which bears the same
ratio to the Variable Outgoings as the Building area of the Premises bears to the
total Building area of the Land; |
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Lessee’s Rights means the right to use: |
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(a) |
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the Lessor’s Fixtures from time to time in the Premises; |
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(b) |
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the Facilities in the Premises; and |
page 2
Lease
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(c) |
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the Services supplied to the Premises; |
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exclusively; and: |
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(d) |
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the Common Areas; |
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(e) |
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the Facilities in the Common Areas; and |
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(f) |
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the Services supplied to: |
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(1) |
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the Common Areas; and |
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(2) |
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the Facilities in the Common Areas; |
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in common with other persons having a similar right;
and: |
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(g) |
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all rights in favour of the Lessee contained or implied in this
Document; and |
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(h) |
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the right to install cables in the Building subject to the approval
of the Lessor; |
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Lessor’s Covenants means the covenants, agreements and obligations contained or
implied in this Document or imposed by law to be observed and performed by the Lessor; |
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Lessor’s Fixtures includes: |
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(a) |
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floor or window coverings; |
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(b) |
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partitioning; |
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(c) |
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light fittings; and |
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(d) |
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any other fixture or fitting; |
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installed by the Lessor in the Premises and any replacement of any item
mentioned in this definition; |
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(a) |
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the right to install in the Premises cables, pipes and wires for
the supply of a Service, Facility, telephone or electronic communication for the
Building, the Land or any Occupier; and |
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(b) |
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all rights in favour of the Lessor contained or implied in this
Document or granted by law; |
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Lettable Parts means those parts of the Building or the Land designated by the Lessor
from time to time as being intended for letting; |
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Losses includes claims, demands, losses, damages, Costs and Expenses; |
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Managing Agent means the person specified in Item 9 of the Schedule or any person,
firm or corporation as the Lessor by notice to the Lessee nominates; |
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Money Payable means the Rent and any other money payable by the Lessee under this
Document; |
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Occupier means a lessee, licensee or other person having the right to occupy any part
of the Building; |
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Painting and Decorating Intervals means the intervals specified in Item 11 of the
Schedule; |
page 3
Lease
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Party means the Lessor or the Lessee according to the context; |
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Permitted Person means: |
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(a) |
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an agent, employee, licensee, or invitee of the Lessee; and |
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(b) |
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any person visiting the Building with the express or implied
consent of any person mentioned in paragraph (a); |
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Permitted Use means the use specified in Item 13 of the Schedule; |
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Plant and Equipment means plant and equipment for or in connection with any: |
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(a) |
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Service; or |
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(b) |
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heating, cooling, lighting, power or plumbing; |
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serving the Land or the Building; |
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Preliminary Period means the period from midnight on the day before the Date of
Commencement until midnight on the last day of the first Lease Year; |
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Premises means the Lettable Parts as shown on the plan annexed to this Document
including: |
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(a) |
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the internal finished surface of the permanent walls; |
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(b) |
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where exterior windows are double glazed, the interior glazing and
the area between the interior and exterior glazing; |
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(c) |
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the internal finished surface of interior walls or partitions
except in the case of inter-tenancy walls or partitions where the facing part of
those walls to the centre line is included; |
|
|
(d) |
|
the surface of the floor slabs, whether or not there is a raised
floor; and |
|
|
(e) |
|
if there is a suspended ceiling, the upper surface of the suspended
ceiling, or if there is no suspended ceiling, the lower surface of the ceiling
slab or roof; |
|
|
|
|
but excluding: |
|
|
(f) |
|
if the exterior windows are double glazed, the exterior glazing;
and |
|
|
(g) |
|
if the exterior windows are not double glazed, the exterior
windows; |
|
|
|
Public Liability Insurance Amount means the amount specified in Item 12 of the
Schedule; |
|
|
|
|
Rates and Taxes means: |
|
(a) |
|
council rates and charges including, but not limited to, rubbish
removal rates and charges; |
|
|
(b) |
|
land tax and metropolitan region improvement tax on a single
holding basis; |
|
|
(c) |
|
water, drainage and sewerage rates including, but not limited to,
meter rents, charges for the disposal of stormwater, and excess water charges;
and |
|
|
(d) |
|
all other similar rates, taxes, charges, assessments and
impositions; levied, charged, assessed or imposed in respect of any part of the
Land or the Building or the ownership or occupation of any part of the Land or
the Building but excluding any tax imposed by the Income Tax Xxx 0000 and any
other |
page 4
Lease
|
|
|
statute from time to time in force imposing a tax on income or capital
increase; |
|
|
|
Rent means the rent specified in Item 6 of the Schedule as varied from time to time
under this Document; |
|
|
|
|
Schedule means the schedule to this Document; |
|
|
|
|
Service means electricity, gas, oil, fuel, water or other like service; |
|
|
|
|
Term means the term specified in Item 3 of the Schedule and any Further Term; |
|
|
|
|
Termination means the expiry or earlier determination of the Term or any period of
Holding Over; |
|
|
|
|
Unfit for Occupation means that the Premises or the Building, or any part of the
Premises or the Building are so destroyed or damaged as to: |
|
(a) |
|
render the Premises substantially unfit for occupation and use; or |
|
|
(b) |
|
interfere substantially with the Lessee’s Rights; and |
|
|
|
Variable Outgoings means all outgoings, costs and expenses of the Lessor assessed,
charged, payable or incurred in respect of the Land or the Building or in the
maintenance, repair, renovation, replacement, decoration, refurbishment, management,
administration, control, supervision and security of the Land or the Building
including, but not limited to, the cost of: |
|
(a) |
|
insuring the Building or any part of the Building and any equipment
or appliance in or on the Land or the Building against: |
|
(1) |
|
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; |
|
|
(2) |
|
loss of rent for a period of TWELVE (12) months; |
|
|
(3) |
|
demolition and removal of debris; |
|
|
(4) |
|
architects’ and other consultants’ fees; |
|
|
(5) |
|
claims under workers’ compensation legislation and
statutory liability by employees of the Lessor working in or about the
Building; and |
|
|
(6) |
|
owner’s third party liability; and |
|
|
(7) |
|
all other risks which the Lessor insures against; |
|
(b) |
|
maintaining, repairing, renovating, replacing, decorating and
refurbishing the Building and the Land but excluding: |
|
(1) |
|
work of a structural or capital nature; or |
|
|
(2) |
|
work which is or would be the responsibility of any
Occupier under the terms of this Document; |
|
(c) |
|
providing, operating, maintaining, repairing, renovating,
replacing, decorating, refurbishing, managing, administering, controlling,
supervising and securing: |
page 5
Lease
|
(1) |
|
Services to the Common Areas and to the Facilities
within the Common Areas; |
|
|
(2) |
|
any consumable item or service provided by the Lessor
to or for the Common Areas or for the benefit of the Occupiers and not
separately charged to any Occupier; |
|
|
(3) |
|
services to the Building including, but not limited
to, lighting, fire fighting and prevention systems, music and public
address systems and emergency generators; and |
|
|
(4) |
|
security systems for the Land or the Building; |
|
(d) |
|
cleaning the Common Areas other than the Lettable Areas; |
|
|
(e) |
|
compacting, storing and removing rubbish; |
|
|
(f) |
|
landscaping and maintaining any part of the Land and the Building; |
|
|
(g) |
|
providing, maintaining, repairing, renovating, replacing,
decorating, refurbishing, managing, administer, controlling, supervising and
securing any service or thing which the Lessor considers necessary or expedient
or an improvement to the amenities of the Building or the Land; but excluding: |
|
(1) |
|
work of a structural or capital nature; or |
|
|
(2) |
|
work which is or would be the responsibility of any
Occupier under the terms of this Document; |
|
(h) |
|
employing the Managing Agent and employing and providing facilities
for staff for the matters mentioned in this definition; |
|
|
(j) |
|
legal fees and disbursements in relation to the matters mentioned
in this definition; |
|
|
(j) |
|
providing motor vehicles, plant, equipment, tools and materials for
the matters mentioned in this definition; and |
|
|
(k) |
|
taxes and statutory charges associated with the matters mentioned
in this definition including, but not limited to, payroll tax, financial
institutions duty, bank debits tax, tax on goods or services and taxes of a type
not charged at the Date of Commencement. |
|
|
(l) |
|
Rates and Taxes. |
|
(a) |
|
LEASES the Premises; and |
|
|
(b) |
|
GRANTS the Lessee’s Rights; |
|
|
|
to the Lessee subject to all Encumbrances for the term specified in Item 3 of the
Schedule and subject to: |
|
(c) |
|
the payment of the Money Payable; and |
page 6
Lease
|
(d) |
|
the observance and performance of the Lessee’s Covenants; |
|
|
|
but RESERVING to the Lessor the Lessor’s Rights. |
|
|
|
Except as provided in this Lease and subject to the observance and performance of the
Lessee’s Covenants, 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. |
|
4.1 |
|
Purposes for which Lessor may act |
|
|
|
|
The Lessor may for the purpose of providing: |
|
(a) |
|
a public or private entrance to or exit from; |
|
|
(b) |
|
a support for a structure erected on; |
|
|
(c) |
|
the supply of a Service, a Facility, or telephone or electronic
communication to; or |
|
|
(d) |
|
any other right, privilege or facility for; |
|
|
|
the Building, the Land or any other land, do any of the things specified in clause
4.2. |
|
|
4.2 |
|
Rights of Lessor in respect of easements |
|
|
|
|
The Lessor may for the purposes detailed in clause 4.1 and subject to clause 4.3; |
|
(a) |
|
grant rights of support to or enter into any arrangement or
agreement with: |
|
(1) |
|
any owner, lessee, tenant, occupier, or other person,
interested in land adjacent to or near to the Building; or |
|
|
(2) |
|
any public authority; |
|
(b) |
|
dedicate or transfer any part of the Land; or |
|
|
(c) |
|
grant or create any easement or privilege in favour of any person
or public authority over or affecting the Premises, the Land or the Building. |
|
4.3 |
|
Easements may not substantially derogate from Lessee’s Rights |
|
|
|
|
The Lessor may not without the Lessee’s consent, which consent may not be unreasonably
withheld, dedicate, transfer, grant or create any easement, right or privilege which
substantially and permanently derogates from the Lessee’s Rights. |
|
|
|
The Lessee must pay to the Lessor the Rent without deduction or set off including but
not limited to equitable setoff at the times and in the manner specified in Item 6 of
the |
page 7
Lease
|
|
|
Schedule during the Term except that the first and last payments will be apportioned
on a daily basis if they are in respect of periods of less than a month. |
|
6.1 |
|
Definitions |
|
|
|
|
In this clause: |
|
|
|
|
Consumer Price Index means the index published by the Australian Bureau of Statistics
as the Consumer Price Index for Perth for all groups or if that index is suspended or
discontinued, the index substituted for it by the Australian Statistician; |
|
|
|
|
Current Market Rental Value means the best current open market annual rental value
that can be reasonable obtained for the Premises:- |
|
(a) |
|
on the basis that the Premises are available for leasing between a
willing lessor and a willing lessee; |
|
|
(b) |
|
on the terms and conditions contained in this Lease (except as to
rental payable); |
|
|
(c) |
|
on the basis that the Lessee’s Lease covenants and obligations have
been fully performed at the Rent Review Date (herein defined); |
|
|
(d) |
|
without taking into account the Lessee’s trade fixtures and
fittings any improvements fixtures and fittings erected or installed at the
Lessee’s expense; |
|
|
(e) |
|
having regard to the current market rental for the average of three
comparable premises in the area in which the Premises are located; and |
|
|
(f) |
|
disregarding the value of any incentive offered to the Lessee to
enter into this Lease. |
|
|
|
Rent Notice means a notice given by the Lessor to the Lessee under clause 6.2(d)(1). |
|
|
|
|
Rent Review Dates means the dates specified in Item 7 of the Schedule. |
|
|
|
|
President means the President or the person acting or deputising for the President for
the time being of the Australian Property Institute (Inc) (Western Australian
Division); and |
|
|
|
|
Valuer means a valuer who: |
|
(a) |
|
is licensed and being a member of the Australian Institute for
Valuer and Land Administrators; |
|
|
(b) |
|
is a fellow or associate of the Australian Property Institute (Inc)
(WA Division) of not less than FIVE (5) years standing; and |
|
|
(c) |
|
has had not less than FIVE (5) years practical experience in
Western Australia in the valuation of properties of the same general
classification as the Premises. |
page 8
Lease
|
6.2 |
|
Method of review the rent |
|
(a) |
|
On the dates specified in Item 7(a) of the Schedule the Rent shall
be reviewed to Consumer Price Index (CPI) Perth or THREE PERCENT (3%) whichever
is greater. |
|
|
(b) |
|
On the dates specified in Item 7(b) of the Schedule the Rent shall
be reviewed to the Current Market Rental Value of the Premises. |
|
|
(c) |
|
In no event shall the Current Market Rental Value be less than a
CPI review or THREE PERCENT (3%) whichever is greater of the Rent payable
immediately prior to the Rent Review Date. |
|
|
(d) |
|
In reviewing the rent to the Current Market Rental Value the
following shall apply: |
|
(1) |
|
Not less than SIX (6) months prior to the Rent Review
Date the Lessor shall give to the Lessee notice (Rent Notice) in writing
of the annual Rent proposed by the Lessor to become payable from the Rent
Review Date (Lessor’s Proposed Rent). |
|
|
(2) |
|
Within TWENTY ONE (21) days of service of that notice
on the Lessee if the Lessee is not agreeable, the Lessee shall be entitled
to give to the Lessor notice in writing disputing the amount of the
Lessor’s Proposed Rent and stating the amount which the Lessee considers
to be the Rent that should be payable from the Rent Review Date (Lessee’s
Proposed Rent). |
|
|
(3) |
|
If the Lessee does not give the notice referred to in
paragraph (2) above within the time therein specified the Lessee shall be
deemed to have accepted that the Lessor’s Proposed Rent shall be the Rent
payable by the Lessee to the Lessor on and from the Rent Review Date. |
|
|
(4) |
|
If the Lessee gives notice referred to in paragraph
(2) above within the time therein specified the Lessor may accept the
Lessee’s Proposed Rent as the rent payable by the Lessee to the Lessor on
and from the Rent Review Date but if not so accepted or otherwise agreed
prior to the Rent Review Date then the annual Rent payable from the Rent
Review Date shall be determined by a Valuer appointed by the President for
the time being of the Australian Property Institute (Inc) Western
Australian Division and the Valuer shall be deemed to be acting as an
expert whose decision shall be final and binding on both the Lessor and
the Lessee. The cost of the Valuer’s determination shall be borne equally
by the Lessee and the Lessor. |
|
|
(5) |
|
Until the annual Rent from the Rent Review Date is
agreed or determined the Lessee shall pay to the Lessor a rental
equivalent to the Rent immediately prior to the Rent Review Date. Any
further sum which shall be payable by the Lessee from the Rent Review Date
as a result of an agreement or determination as the case may be shall be
paid in full to the Lessor immediately such sum is known. |
7 |
|
Not to cause rent reduction |
|
|
|
The Lessee must not by any act or omission: |
|
(a) |
|
cause, directly or indirectly the Rent to be reduced; or |
page 9
Lease
|
(b) |
|
impose on the Lessor any liability of the Lessee under this
Document except: |
|
(1) |
|
if obliged to do so by any statute from time to time
in force; or |
|
|
(2) |
|
with the consent of the Lessor. |
|
8.1 |
|
Definitions |
|
|
|
|
Unless the contrary intention appears, in this clause: |
|
|
|
|
GST means a tax levied on the value of a good or service or property supplied,
including but not limited to the value represented by the Rent and the amount of
Variable Outgoings, Rates & Taxes or other Money Payable to the Lessor for goods or
services or property. |
|
|
|
|
Supply means a good or service or property supplied under this Document, including but
not limited to the Premises, Utilities and other goods or services or property the
cost of which comprises part of the Variable Outgoings or Rates and Taxes. |
|
|
8.2 |
|
Lessee must pay GST |
|
|
|
|
The Lessee must pay to the Lessor the amount of any GST the Lessor pays or is liable
to pay on a Supply. |
|
|
8.3 |
|
Lessee must pay GST at same time |
|
|
|
|
Subject to receipt of a tax invoice, the Lessee must pay to the Lessor the amount of
the GST that the Lessee is liable to pay: |
|
(a) |
|
at the same time; and |
|
|
(b) |
|
in the same manner |
|
|
|
as the Lessee is obliged to pay for that Supply, including in relation to Rent,
Variable Outgoings and Rates and Taxes, at the time the Lessee is obliged to pay those
amounts. |
|
|
8.4 |
|
Prices do not include GST |
|
|
|
|
The price for each Supply, including Rent, fixed or determined under this Document
does not include GST on that Supply and the Lessee must pay the amount of GST in
addition to the price for that Supply fixed or determined under this Document. |
|
|
8.5 |
|
Apportionment of GST |
|
|
|
|
Where a Supply is not separately supplied to the Lessee, the liability of the Lessee
for any amount for GST in relation to that Supply is determined on the same basis as
the Lessee’s Proportion of Variable Outgoings is determined. |
|
|
8.6 |
|
Statement of GST paid is conclusive |
|
|
|
|
A written statement given to the Lessee by the Lessor of the amount of GST that the
Lessor pays or is liable to pay is conclusive as between the Parties except in the
case of an obvious error. |
page 10
Lease
|
9.1 |
|
Estimate of Lessee’s Proportion of Variable Outgoings |
|
|
|
|
In respect of each Lease Year, the Lessor may estimate the Variable Outgoings and
advise the Lessee of the amount estimated. In respect of the first Lease Year the
Lessor’s estimate is $74,400 (the “Base Amount”). |
|
|
9.2 |
|
Issue of statement of Variable Outgoings |
|
|
|
|
After the expiry of each Lease Year the Lessor must issue to the Lessee a statement
giving reasonable details of the Variable Outgoings and the calculation of the
Lessee’s Proportion of Variable Outgoings. |
|
|
9.3 |
|
Issue of statement of Rates and Taxes |
|
|
|
|
If the Premises are not separately assessed in respect of Rates and Taxes, the Lessor
must issue to the Lessee a statement giving reasonable details of the Rates and Taxes
and the calculation of the Lessee’s Proportion of Rates and Taxes. |
|
|
9.4 |
|
Apportionment for periods less than TWELVE (12) months |
|
|
|
|
The Lessee’s Proportion of Rates and Taxes and the Lessee’s Proportion of Variable
Outgoings for the Preliminary Period and the Final Period will be apportioned on a
daily basis in respect of periods of less than TWELVE (12) months. |
|
|
9.5 |
|
Changes to Variable Outgoings |
|
|
|
|
Notwithstanding any other term of this agreement, the Lessor shall not, in the second
and subsequent years of this Lease increase the Variable Outgoings above the Base
Amount (i.e. the original $74,400) unless the Lessor has experienced an increase in
any of the cost inputs that comprised the Base Amount and then any such increase shall
be limited to the amount by which that individual cost increased. |
|
|
9.6 |
|
Payment by Lessee |
|
|
|
|
The Lessee must pay to the Lessor: |
|
(a) |
|
the Lessee’s Proportion of Variable Outgoings within TWENTY (20)
business days of service by the Lessor on the Lessee of each statement of
Variable Outgoings; |
|
|
(b) |
|
on account of the Lessee’s Proportion of Variable Outgoings, the
amount estimated by the Lessor in respect of each Lease Year, by equal monthly
payments on the first day of each month; |
|
|
(c) |
|
on demand, the Lessee’s Proportion of Rates and Taxes; and |
|
|
(d) |
|
on demand, the Lessee’s Proportion of Rates and Taxes estimated for
the Final Period. |
|
9.7 |
|
Lessor to pay Rates and Taxes |
|
|
|
|
The Lessor must pay all Rates and Taxes promptly. |
page 11
Lease
|
9.8 |
|
Lessor to refund overpayment |
|
|
|
|
If in any Lease Year the amount paid by the Lessee under clause 9.6 above exceeds the
Lessee’s Proportion of Variable Outgoings, the Lessor must credit to the Lessee the
overpayment except at the end of the Final Period when the Lessor must pay the
overpayment to the Lessee within TEN (10) Business Days of service by the Lessor on
the Lessee of the statement of Variable Outgoings disclosing the overpayment. |
|
|
9.9 |
|
Lessor may recover taxes |
|
|
|
|
If the Lessee’s Proportion of Variable Outgoings includes any tax on goods or
services, the Lessee must pay that tax. |
10 |
|
Outgoings separately assessed |
|
(a) |
|
to the Lessor; or |
|
|
(b) |
|
if the demand is made to the Lessee by any statutory authority,
then to that authority; |
|
|
|
on demand all outgoings separately assessed or charged in respect of the Premises
including, but not limited to: |
|
(c) |
|
electricity, gas and other power and light charges and expenses
including, but not limited to: |
|
(1) |
|
charges and assessments for use under assessments or
meter readings; |
|
|
(2) |
|
meter rents; |
|
|
(3) |
|
the cost of installation of any meter, wiring or
other apparatus necessitated by the use of electricity, gas and other
power, and |
|
|
(4) |
|
the cost of cleaning the Premises; and |
|
(d) |
|
the operation, maintenance and repair of fire sprinklers,
monitoring and protection, air-conditioning, heating, cooling, ventilation plant,
and roller doors servicing the Building. |
|
11.1 |
|
Definition |
|
|
|
|
In this clause: |
Legal Fees means reasonable amounts which are payable or have been paid
by the Lessor to the Lessor’s solicitor.
|
(a) |
|
The Lessee must pay to the Lessor all the costs, outgoings, fees,
Legal Fees and disbursements, and payments, which the Lessor pays or is liable to
pay in connection with or incidental to: |
page 12
Lease
|
(1) |
|
the stamping, and any necessary registration, of this
Document; |
|
|
(2) |
|
the Money Payable; |
|
|
(3) |
|
any breach of the Lessee’s Covenants; |
|
|
(4) |
|
the exercise or purported or attempted exercise of
the Lessor’s Rights; |
|
|
(5) |
|
any work done at the request of the Lessee; and |
|
|
(6) |
|
obtaining or attempting to obtain payment of the
Money payable; |
|
|
(7) |
|
any action, suit or proceeding arising out of,
concerned with, or incidental to: |
|
(A) |
|
any of the matters referred to in
subparagraphs (1) to (6); or |
|
|
(B) |
|
any other matter connected with,
incidental to or arising out of this Document; |
|
|
|
unless costs are awarded to the Lessee against the Lessor in that
action, suit or proceeding; |
|
|
|
if they are of a reasonable amount and have been reasonably incurred; |
|
|
(b) |
|
the Lessee must pay, or if demand is made by the Lessor, must pay
to the Lessor: |
|
(1) |
|
all filing and registration fees in connection with
this Document; and |
|
|
(2) |
|
all duty, fines and penalties payable under the Xxxxx
Xxx 0000, if not caused by any act or omission of the Lessor, financial
institutions duty, debits tax, and other statutory duties or taxes on or
in respect of: |
12 |
|
Interest on overdue money |
|
|
|
Without affecting the rights, powers and remedies of the Lessor under this Document,
the Lessee must pay to the Lessor on demand Interest on any Money Payable which is
unpaid for SEVEN (7) days computed from the due date for payment until payment. |
13 |
|
Lessor to maintain building |
|
|
|
Subject to the Lessee performing and observing the Lessee’s Covenants, the Lessor must
maintain: |
|
(a) |
|
the structure of the Building; and |
|
|
(b) |
|
the Common Areas |
|
(1) |
|
to a standard reasonably commensurate with the
standard of the Building as at the commencement of this lease (fair wear
and tear excepted); |
|
|
(2) |
|
to a standard reasonably commensurate with equivalent
buildings (being buildings that would be relevant for the purposes of
determining the Current Market Rent pursuant to clause 6.2); and |
page 13
Lease
14 |
|
Lessee to maintain premises |
|
(a) |
|
The Lessee must maintain the Premises in good condition except in
respect of: |
|
(1) |
|
fair wear and tear; |
|
|
(2) |
|
structural damage not caused by an act or omission of
the Lessee or a Permitted Person; and |
|
|
(3) |
|
damage caused by an event which is the subject of an
Insured Risk, but if payment of the insurance money under the Lessor’s
insurance policy in respect of that damage is refused or reduced by reason
of an act or default of the Lessee, the Lessee must in respect of that
damage maintain the Premises in good condition to the extent that the
insurance money is refused or reduced; but |
|
(b) |
|
the Lessee’s obligation under this clause is diminished to the
extent that payment of insurance money under the Lessor’s insurance policy in
respect of that obligation is: |
|
(1) |
|
received by the Lessor; or |
|
|
(2) |
|
refused or reduced by reason of an act or default of
the Lessor; and |
|
(c) |
|
the Lessee must replace all broken or damaged glass in the doors,
walls or windows of or to the Premises irrespective of the cause of breakage or
damage. |
|
14.2 |
|
Floor covering |
|
|
|
|
The Lessee must: |
|
(a) |
|
maintain the floor covering in the Premises in good and clean
condition; |
|
|
(b) |
|
make good all damage to the floor covering, fair wear and tear
excepted; |
|
|
(c) |
|
replace any area of floor covering in the Premises which is unduly
worn having regard to the rest of the floor covering in the Premises; |
|
|
(d) |
|
protect the floor covering from excessive wear by the use of
protective devices approved by the Lessor from time to time; and |
|
|
(e) |
|
on Termination, have the floor covering in the Premises
professionally steam or dry cleaned. |
|
14.3 |
|
Repair promptly |
|
|
|
|
The Lessee must promptly: |
|
(a) |
|
repair to the satisfaction of the Lessor any damage to the Premises
for which the Lessee is liable; and |
page 14
Lease
|
(b) |
|
replace all electric globes and fluorescent tubes in the Premises,
which fail for any reason. |
|
14.4 |
|
Paint and decorate |
|
|
|
|
At the Painting and Decorating Intervals the Lessee must paint with TWO (2) coats at
least those parts of the Premises usually painted (i.e. office internal and external
walls and external dado panels) in a proper manner, using suitable, good quality
materials of a colour and quality first approved by the Lessor in writing. |
|
|
14.5 |
|
Clean and free from rubbish |
|
|
|
|
The Lessee must keep the Premises clean and free from rubbish. |
|
|
14.6 |
|
Pest control |
|
|
|
|
The Lessee must take reasonable precautions to keep the Premises free of animals,
birds and insects, and if required by the Lessor, at the cost of the Lessee employ
from time to time pest exterminators approved by the Lessor. |
15 |
|
Lessor’s fixtures and the facilities in the premises |
|
(a) |
|
The Lessee must maintain the Lessor’s Fixtures and the Facilities
in the Premises in good condition and must replace any damaged items except in
respect of: |
|
(1) |
|
fair wear and tear; and |
|
|
(2) |
|
damage caused by an event which is the subject of an
Insured Risk, but if payment of the insurance money under the Lessor’s
insurance policy in respect of that damage is refused or reduced by reason
of an act or default of the Lessee, the Lessee must in respect of that
damage maintain the Premises in good condition to the extent that the
insurance money is refused or reduced; but |
|
(b) |
|
the Lessee’s obligation under this clause is diminished to the
extent that payment of insurance money under the Lessor’s insurance policy in
respect of the obligation is: |
|
(1) |
|
received by the Lessor; or |
|
|
(2) |
|
refused or reduced by reason of an act or default of
the Lessor. |
|
15.2 |
|
Replacements |
|
|
|
|
If the Lessee is liable to replace any of the Lessor’s Fixtures or the Facilities in
the Premises, the Lessee must: |
|
(a) |
|
replace that Lessor’s Fixture or Facility with an item of similar
quality, colour, and design; and |
|
|
(b) |
|
carry out the replacement to the reasonable satisfaction of the
Lessor. |
page 15
Lease
|
15.3 |
|
Facilities |
|
|
|
|
The Lessee must keep the Facilities within the Premises unobstructed. |
|
16.1 |
|
Restriction on alterations |
|
|
|
|
The Lessee must not: |
|
(a) |
|
make any alteration or addition to or demolish any part of the
Premises; |
|
|
(b) |
|
remove, alter or add to any of the Lessor’s Fixtures, the Plant and
Equipment or any Facility in the Premises; |
|
|
(c) |
|
install any fixture or partitioning in the Premises; |
|
|
(d) |
|
make any hole in the walls of the Premises; |
|
|
(e) |
|
drive nails or other objects into the walls or other parts of the
Building; |
|
|
(f) |
|
cut, alter, remove or replace any carpet in the Premises; or |
|
|
(g) |
|
install any curtain, blind or other window treatment in or outside
the Premises; |
|
|
|
without the prior consent of the Lessor and subject to: |
|
(h) |
|
the requirements of any statute in force from time to time, the
insurer of any of the Insured Risks and the Insurance Council of Australia; and |
|
|
(i) |
|
any condition imposed by the Lessor. |
|
16.2 |
|
Consent to alterations |
|
|
|
|
In giving consent to any alteration, the Lessor may impose any condition, including,
but not limited to, a condition that: |
|
(a) |
|
the work be carried out: |
|
(1) |
|
in accordance with drawings or specifications
approved by the Lessor; or |
|
|
(2) |
|
under the supervision of the Lessor’s architect or
other consultant; |
|
(b) |
|
the Lessee pays the costs and fees of the Lessor in supervising or
inspecting the work; and |
|
|
(c) |
|
the Lessor requires the Lessee to carry out other work to or in the
Building as a consequence of the alteration, addition, demolition or installation
requested by the Lessee; |
|
|
|
but in regard to the installation, alteration or addition of partitioning within the
Premises, the consent of the Lessor may not be unreasonably withheld. |
|
|
16.3 |
|
Other work necessitated by alteration |
|
|
|
|
If any other work is: |
page 16
Lease
|
(a) |
|
required by the Lessor as a condition of giving consent as
mentioned in clause 16.1; or |
|
|
(b) |
|
necessary to comply with a statute for the time being in force or
the requirement of an insurer of the Insured Risks or the Insurance Council of
Australia; |
|
|
|
the Lessee must at the option of the Lessor either: |
|
(c) |
|
carry out that other work; or |
|
|
(d) |
|
permit the Lessor to carry out that other work; |
|
|
|
at the cost of the Lessee in accordance with any requirement imposed by the Lessor in
respect of that other work. |
|
|
16.4 |
|
Asbestos and other harmful substances |
|
|
|
|
The Lessee must: |
|
(a) |
|
not install in the Premises: |
|
(1) |
|
asbestos; or |
|
|
(2) |
|
any other material having the potential to harm the
health or safety of persons in the Building; and |
|
(b) |
|
at the Lessee’s cost remove from the Premises and make good any
damage caused by the removal of: |
|
(1) |
|
any asbestos brought onto the Land by the Lessee; or |
|
|
(2) |
|
any other material having the potential to harm the
health or safety of persons in the Building brought onto the Land by the
Lessee. |
|
17.1 |
|
Purpose |
|
|
|
|
The Lessee must not use any part of the Premises for any purpose other than the
Permitted Use. |
|
|
17.2 |
|
No warranty as to use |
|
|
|
|
The Lessor gives no warranty as to the use to which the Premises may be put. |
|
|
17.3 |
|
Premises subject to restrictions |
|
|
|
|
The Lessee accepts the Premises for the Term with full knowledge of and subject to any
existing prohibition or restriction on the use of the Premises. |
|
|
17.4 |
|
Consent of authority needed |
|
|
|
|
If the business carried on by the Lessee at the Premises is permissible only with
consent, license or authority under any statute, the Lessee must obtain that consent,
license or authority and comply with that statute. |
page 17
Lease
|
|
|
The Lessee will not bring onto the Premises any heavy machinery or other plant or
equipment not necessary or proper for the Lessee’s use of or its conduct of the
business conducted from the Premises and in no event will any machinery, plant or
equipment be of a nature or size that will cause or be likely to cause any structural
damage to any part of the Premises. |
19 |
|
Chemicals and inflammable substances |
|
|
|
The Lessee must not, except for reasonable quantities for normal applications in
connection with the cleaning of the Premises or any equipment in the Premises, or the
operation of forklifts, use or store any chemical or inflammable substance within the
Building. |
20 |
|
Environmental covenant |
|
20.1 |
|
Definition |
|
|
|
|
In this clause: |
|
|
|
|
Authorisation includes: |
|
(a) |
|
a consent, authorisation, registration, agreement, certificate,
permission, licence, approval, authority or exemption from, by or with a
Government Agency; or |
|
|
(b) |
|
in relation to anything which will be prohibited or restricted in
whole or part by law if a Government Agency intervenes or acts in any way within
a specified period after lodgement, filing, registration or notification, the
expiry of that period without that intervention or action; |
|
|
|
under an Environmental Law; |
|
|
|
|
Contaminant means a noxious or hazardous substance which, having regard to the
quantity and location of the substance and other substances in conjunction with which
it is stored or used, is capable of causing material harm to the environment; |
|
|
|
|
Environmental Law means a law relating to any aspect of the environment or health; and |
|
|
|
|
Government Agency means a government or governmental, semi-governmental, or judicial
entity or authority. |
|
|
20.2 |
|
Environment |
|
|
|
|
The Lessee must: |
|
(a) |
|
use the Premises in a manner, which complies with each
Environmental Law and each Authorisation; |
|
|
(b) |
|
ensure that each Authorisation, of any conduct or activity in
relation to the Premises is obtained before that conduct or activity and kept in
full force and effect; |
page 18
Lease
|
(c) |
|
not do or omit to do any act which might directly or indirectly
result in the revocation, suspension or modification of an Authorisation in
relation to the Premises or any conduct or activity in relation to the Premises; |
|
|
(d) |
|
give to the Lessor notice immediately on becoming aware of: |
|
(1) |
|
the existence of a Contaminant affecting the
Premises; or |
|
|
(2) |
|
the filing of a complaint or the commencement of
proceedings against the Lessee in relation to an alleged failure to
observe or perform obligations under an Environmental Law or
Authorisation; |
|
(e) |
|
provide to the Lessor on demand: |
|
(1) |
|
a report on the effect of any Environmental Law or
Authorisation applicable to the Premises or any conduct or activity on the
Premises prepared by an expert nominated by the Lessor at the expense of
the Lessee; and |
|
|
(2) |
|
copies of all Authorisations relating to the
Premises; |
|
|
|
within a reasonable time after receipt by the Lessee of that request. |
21 |
|
Use of other parts of the Building |
|
21.1 |
|
Restrictions on use |
|
|
|
|
The Lessee must not enter on or use the roof of the Building or any other part of the
Building outside the Premises except the Common Areas. |
|
|
21.2 |
|
Common Areas |
|
|
|
|
The Lessee must not do or omit any act or thing, which might cause or allow the Common
Areas: |
|
(a) |
|
to deteriorate or become impaired except for fair wear and tear; |
|
|
(b) |
|
to be in a condition other than a good and sanitary condition; or |
|
|
(c) |
|
to be obstructed. |
22 |
|
Use and enjoyment affecting occupiers |
|
22.1 |
|
Offensive activities |
|
|
|
|
The Lessee must not do or carry on in the Premises: |
|
(a) |
|
any harmful, offensive or illegal act, matter or thing; or |
|
|
(b) |
|
any act or thing which causes nuisance, damage, or disturbance to
the Lessor or any Occupier. |
|
22.2 |
|
Aerials and amplified noise |
page 19
Lease
|
(1) |
|
construct or place outside the Premises any radio or
television aerial or antenna (other than any telecommunications equipment
which might reasonably be required by the Lessee in order to receive
wireless telecommunications services from a telecommunications provider);
or |
|
|
(2) |
|
use any sound producing equipment so as to be audible
from outside the Premises; |
|
|
|
without the prior consent of the Lessor or after that consent is withdrawn. |
|
|
(b) |
|
The Lessor may at any time withdraw a consent given under this
subclause if the Lessor reasonably so determines, having regard to the rights or
interests of the Lessor, the Occupiers and the owners or occupiers of nearby
properties in which case the Lessee must remove the equipment (other than any
telecommunications equipment which might reasonably be required by the Lessee in
order to receive wireless telecommunications services from a telecommunications
provider). |
|
22.3 |
|
Infectious diseases |
|
|
|
|
If any notifiable infectious disease occurs in the Premises, the Lessee must: |
|
(a) |
|
notify each proper public authority; and |
|
|
(b) |
|
comply with each requirement of each proper public authority. |
|
22.4 |
|
No smoking |
|
|
|
|
The Lessee must not smoke tobacco or any other substance in any part of the Building. |
|
|
22.5 |
|
Not to cause obstruction |
|
|
|
|
The Lessee must not do anything, which may cause an obstruction in the Facilities in
any part of the Building. |
23 |
|
Miscellaneous restrictions on use |
|
23.1 |
|
Advertisements or notices |
|
|
|
|
The Lessee must not display from or affix to the Premises or any other part of the
Building any advertisement or notice visible from outside the Premises without the
prior consent of the Lessor which the Lessor may not unreasonably withhold in the case
of a notice: |
|
(a) |
|
stating the name and business of the Lessee; |
|
|
(b) |
|
affixed in a place immediately adjacent to the Premises. |
|
23.2 |
|
Rubbish |
|
|
|
|
The Lessee must not: |
|
(a) |
|
place any rubbish in any part of the Building or the Land except in
a place and receptacle designated by the Lessor for disposal of that type of
rubbish; |
page 20
Lease
|
(b) |
|
burn any rubbish in the Building or on the Land; or |
|
|
(c) |
|
fail to remove on a regular basis any rubbish of a kind not removed
by the local authority. |
24 |
|
Security of the building and the Premises |
|
24.1 |
|
Lock Premises |
|
|
|
|
The Lessee must not leave the Premises unattended unless every door of the Premises
giving access to a Common Area or an adjoining part of the Building is securely
fastened and locked. |
|
|
24.2 |
|
Outside doors of Building |
|
|
|
|
The Lessee must not possess any key to any lock or security access device to an
outside door of the Building except as provided by the Lessor. |
|
|
|
The Lessee must permit entry to the Premises by the Lessor: |
|
(a) |
|
at all reasonable times on the Lessor giving to the Lessee
reasonable notice; or |
|
|
(b) |
|
on demand in the case of emergency; with or without: |
|
|
(c) |
|
workmen and others; and |
|
|
(d) |
|
plant, equipment and materials: |
|
|
|
for the purposes mentioned in this clause; |
|
25.2 |
|
Inspect state of repair |
|
|
|
|
To inspect the state of repair of the Premises and to ensure compliance with the
Lessee’s Covenants; |
|
|
25.3 |
|
Comply with authorities |
|
|
|
|
To comply with any requirement, notification or order of an authority having
jurisdiction or authority over or in respect of the Premises for which the Lessor is
liable under this Document; |
|
|
25.4 |
|
Maintenance, modifications or extensions |
|
|
|
|
To carry out maintenance, repair, renovation, replacement, modifications,
installations or extensions to the Building, the Plant and Equipment, or any other
equipment, cables, pipes or wires within the Premises or the Building, on condition
that the Lessor uses its reasonable endeavours not to cause any undue inconvenience to
the Lessee; |
|
|
25.5 |
|
Plant and Equipment |
|
|
|
|
To maintain, service, install or remove any Plant and Equipment provided that the
|
page 21
Lease
|
|
|
Lessor uses its reasonable endeavours not to cause any undue inconvenience or
disruption to the Lessee; |
|
25.6 |
|
Interested persons |
|
|
|
|
To view the Premises with: |
|
(a) |
|
persons having or seeking an interest in the Building or any part
of the Building; |
|
|
(b) |
|
financiers; |
|
|
(c) |
|
insurers; and |
|
|
|
other similarly interested persons; or |
|
25.7 |
|
Affix notices |
|
|
|
|
To affix re-letting notices to the Premises during the last SIX (6) months of the Term. |
|
|
|
The Lessee must not use the Facility, item of Plant and Equipment or Lessor’s Fixture
for a purpose other than for which it was designed or for which it is designated by
the Lessor. |
|
(a) |
|
comply with and observe the reasonable requirements of the Lessor
relating to the Plant and Equipment; |
|
|
(b) |
|
not do anything which might interfere with or impair the
efficient operation of the Plant and Equipment; and |
|
|
(c) |
|
when conditioned air is available, not obstruct that airflow
through the ducting of the Premises; nor use any other method of
air-conditioning, heating or cooling without the prior consent in writing of the
Lessor. |
|
28.1 |
|
Not overload |
|
|
|
|
The Lessee must not install any electrical equipment on the Premises, which might
overload the cables, switchboards, or sub-boards, through which electricity is
connected to the Premises without the prior consent of the Lessor and under any
condition imposed by the Lessor. |
|
|
28.2 |
|
Consent to install equipment |
|
|
|
|
If the Lessee wishes to install any electrical equipment on the Premises which might
overload the cables, switchboards or sub-boards through which electricity is
connected to the Premises and: |
page 22
Lease
|
(a) |
|
the Lessor grants its consent; and |
|
|
(b) |
|
the Lessor considers that any alteration is necessary to comply
with the requirements of the Lessor’s insurance underwriters or with any statute
in force from time to time; |
|
(c) |
|
that alteration will be effected by the Lessor at the expense of
the Lessee; |
|
|
(d) |
|
the Lessee must pay the entire cost of the alteration to the Lessor
on demand by the Lessor; and |
|
|
(e) |
|
if required by the Lessor the Lessee must deposit with the Lessor
the estimated cost of the alteration before commencement of any work. |
|
29.1 |
|
Public liability insurance |
|
|
|
|
The Lessee effect and maintain with an insurance company in respect of the Premises
adequate public liability insurance in an amount not less than the Public Liability
Insurance Amount in respect of any one claim. |
|
|
29.2 |
|
Insurance of Lessee’s Fixtures |
|
|
|
|
The Lessee must insure and keep insured to the full insurable value on a replacement
or reinstatement basis the Lessee’s Fixtures. |
|
|
29.3 |
|
Workers’ compensation insurance |
|
|
|
|
The Lessee must effect and maintain workers’ compensation insurance in respect of all
employees of the Lessee employed in, about or from the Premises. |
|
|
29.4 |
|
Glass |
|
|
|
|
The Lessee must effect and maintain with an insurance company a policy of insurance
against all risks in respect of the glass in the doors, walls or windows of or to the
Premises. |
|
|
29.5 |
|
Supply details etc. |
|
|
|
|
The Lessee must in respect of the insurance mentioned in this clause: |
|
(a) |
|
supply to the Lessor details; |
|
|
(b) |
|
produce annually each certificates of currency issued by an
Insurance Company; |
|
|
(c) |
|
deliver promptly to the Lessor particulars of any alteration of the
terms and conditions of each policy. |
|
29.6 |
|
Not to invalidate insurance |
|
|
|
|
The Lessee must: |
|
(a) |
|
not do or omit to do any act or thing or bring or keep anything in
the Building: |
page 23
Lease
|
(1) |
|
which might render the insurance on the Building void
or voidable; or |
|
|
(2) |
|
which might cause the rate of premium to be
increased; and |
|
(b) |
|
if the Lessor approves in writing any proposal of the Lessee to add
to or increase any risk, which is covered by insurance, pay all additional
premiums resulting from the additional or increased risk. |
|
30.1 |
|
Indemnities paramount |
|
|
|
|
The obligation of the Lessee to indemnify the Lessor: |
|
(a) |
|
under this Document; or |
|
|
(b) |
|
by law; |
|
|
|
is unaffected by the obligation of the Lessee to effect insurance and the obligation
of the Lessee to indemnify is paramount. |
|
30.2 |
|
Indemnity in respect of Lessor’s expenses |
|
|
|
|
To the extent permitted by law, the Lessee must on demand pay to the Lessor an amount
equal to all money paid by the Lessor in respect of any liability of the Lessee under
this Document. |
|
|
30.3 |
|
General indemnity |
|
|
|
|
The Lessee INDEMNIFIES the Lessor against all Losses for which the Lessor becomes
liable in respect of loss or damage to property or death or injury of any nature or
kind and however or wherever sustained: |
|
(a) |
|
caused or contributed to by the use or occupancy of the Premises
except to the extent caused or contributed to by the act or omission of the
Lessor; |
|
|
(b) |
|
resulting from an act or omission of the Lessee or the Lessee’s
Permitted Person; or |
|
|
(c) |
|
resulting from a notice, claim or demand to pay, do or perform any
act or thing to be paid, done or performed by the Lessee under this Document
except to the extent that the Lessor is obliged under the provisions of this
Document to pay for or contribute to that cost. |
31 |
|
Lessee’s obligations at risk and expense of Lessee |
|
|
|
Unless this Document otherwise provides, whenever the Lessee is obliged or required by
this Document to do or omit to do any act or thing, the doing or the omission of that
act or thing will be at the sole risk and expense of the Lessee. |
32 |
|
Limit of Lessor’s liability |
|
|
|
Each Lessor is only liable for breaches of the Lessor’s Covenants occurring while that
person is the registered proprietor of the Land. |
page 24
Lease
|
|
|
The Lessee must report promptly to the Lessor or the Managing Agent in writing and in
the case of emergency, verbally: |
|
|
33.1 |
|
Damage to or defect in Premises |
|
|
|
|
Any damage to or defect in the Premises, the Lessor’s Fixtures, the Plant and
Equipment or the Facilities in the Premises of which the Lessee is or ought to be
aware; |
|
|
33.2 |
|
Broken glass |
|
|
|
|
Any breakage of glass in an exterior or inter-tenancy window or door in the Building; |
|
|
33.3 |
|
Malfunction of Plant and Equipment or Facility |
|
|
|
|
Any malfunction of any Plant and Equipment or Facility either within the Premises or
used by the Lessee; and |
|
|
33.4 |
|
Circumstance likely to cause damage or danger |
|
|
|
|
Any circumstance likely to: |
|
(a) |
|
be a danger; or |
|
|
(b) |
|
cause any damage or danger; |
|
|
|
to the Premises, the Building, or any person on or in the Premises, the Building or
the Land of which the Lessee is aware. |
|
34.1 |
|
Not lodge absolute caveat |
|
|
|
|
The Lessee must not lodge an absolute caveat over the Land to protect the interest of
the Lessee under this Document. |
|
|
34.2 |
|
Withdraw caveat on Termination |
|
|
|
|
The Lessee must withdraw any caveat lodged by or on behalf of the Lessee over the Land
on or before Termination. |
35 |
|
Not impede exercise of Lessor’s rights |
|
|
|
The Lessee must not impede the exercise of the Lessor’s Rights. |
36 |
|
Compliance with statutes |
|
|
|
Notwithstanding anything to the contrary contained or implied in this Document, the
Lessee must comply promptly with all statutes from time to time in force relating to
the Premises or the use of the Premises except for any imposing an obligation to carry
out structural work which the Lessee is not required to carry out under this Document. |
page 25
Lease
|
37.1 |
|
Events of default |
|
|
|
|
An Event of Default occurs if: |
|
(a) |
|
any Rent or Variable Outgoings is unpaid for SEVEN (7) days after
becoming due whether or not demand for payment is made; |
|
|
(b) |
|
the Lessee is in breach of any of the Lessee’s Covenants other than
covenants to pay Rent or Variable Outgoings for FOURTEEN (14) days after notice
has been given to the Lessee; |
|
|
(c) |
|
the Lessee is a body corporate and: |
|
(1) |
|
an application is made, a resolution is passed, or a
meeting is convened for the purpose of considering a resolution, for the
Lessee to be wound up unless the winding up is for the purpose of
reconstruction or amalgamation; or |
|
|
(2) |
|
a resolution is passed, or a meeting is convened for
the purpose of considering a resolution, for the appointment of an
administrator of the affairs of the Lessee; |
|
(d) |
|
the Lessee admits in writing its inability to pay its debts; |
|
|
(e) |
|
|
|
(1) |
|
a compromise or arrangement is made between the
Lessee and its creditors; or |
|
|
(2) |
|
an application is made to a Court for an order
summoning a meeting of any class of creditors of the Lessee; |
|
(f) |
|
a controller, as defined by the Corporations Law, is appointed in
respect of any property of the Lessee; |
|
|
(g) |
|
a mortgagee takes possession of any property of the Lessee; |
|
|
(h) |
|
any execution or similar process is made against the Premises or
the property of the Lessee; |
|
|
(i) |
|
an application is made or notice given or other procedure commenced
for the dissolution or cancellation of the registration of the Lessee under the
Corporations Law or any analogous process; |
|
|
(j) |
|
the Lessee, being a natural person, commits an act of bankruptcy;
or |
|
|
(k) |
|
the Lessee is in breach of a provision of an instrument other than
this Document giving the Lessee a right to occupy any part of the Land or the
Building. |
|
37.2 |
|
Lessor may retake possession |
|
|
|
|
After an Event of Default has occurred and without any notice or demand, the Lessor
may at any time enter the Premises, and on re-entry the Term will immediately
determine but without affecting any of the Lessor’s Rights. |
page 26
Lease
|
37.3 |
|
Acceptance of Money Payable not to prejudice Lessor’s Rights |
|
|
|
|
Demand by the Lessor for, or acceptance of, Money Payable after an Event of Default
has occurred will not: |
|
(a) |
|
affect the exercise by the Lessor of the Lessor’s Rights; or |
|
|
(b) |
|
operate as an election by the Lessor either to exercise or not to
exercise the Lessor’s Rights. |
|
37.4 |
|
Lessor may remedy Lessee’s default |
|
|
|
|
If the Lessee: |
|
(a) |
|
omits or neglects to pay any Money Payable; or |
|
|
(b) |
|
does or fails to do anything which constitutes a breach of the
Lessee’s Covenants; |
|
|
|
the Lessor may on each occasion without affecting any right, remedy or power arising
from that default: |
|
(1) |
|
pay that Money Payable; |
|
|
(2) |
|
do or cease the doing of that thing; or |
|
|
(3) |
|
both; as if it were the Lessee; and |
|
(d) |
|
enter and remain on the Premises for that purpose; |
|
|
|
and the Lessee must pay to the Lessor on demand the Lessor’s cost of remedying each
breach or default. |
|
|
37.5 |
|
Exercise of Lessor’s Rights |
|
|
|
|
The Lessor may exercise the Lessor’s Rights: |
|
(1) |
|
without notice being required other than as provided
in this Document; and |
|
|
(2) |
|
notwithstanding laches, neglect or previous waiver by
the Lessor in respect of any breach of the Lessee’s Covenants or the
exercise of the Lessor’s Rights. |
|
37.6 |
|
Essential terms |
|
|
|
|
Each of the Lessee’s Covenants which are specified in: |
|
(a) |
|
clauses 5 (‘RENT’), 8 (‘GST’) and 9.6 (‘VARIABLE OUTGOINGS’); |
|
|
(b) |
|
clauses 14.1 and 14.3 (‘LESSEE TO MAINTAIN PREMISES’ ‘General’ and
‘Repair promptly’); |
page 27
Lease
|
(c) |
|
clause 16 (‘ALTERATIONS’); |
|
|
(d) |
|
clause 17.1 (‘USE OF PREMISES’ ‘Purpose’); |
|
|
(e) |
|
clause 22.1 (‘USE AND ENJOYMENT AFFECTING OCCUPIERS’ ‘Offensive
Activities’); |
|
|
(f) |
|
clause 29 (‘INSURANCE’); and |
|
|
(g) |
|
clause 44 (‘ASSIGNING AND CHARGING’); |
|
|
|
are essential terms of this Document but this subclause does not mean or imply that
there are no other essential terms in this Document. |
|
|
37.7 |
|
Damages for breach of essential terms |
|
|
|
|
In addition to any other remedy or entitlement of the Lessor including the right to
terminate the estate granted by this Document: |
|
(a) |
|
the Lessee must compensate the Lessor in respect of any breach of
an essential term; |
|
|
(b) |
|
the Lessor is entitled to recover damages from the Lessee in
respect of such breaches; and |
|
|
(c) |
|
the Lessee COVENANTS with the Lessor, which covenant will survive
the Termination or any deemed surrender at law of the estate granted by this
Document, that if the Term is determined: |
|
(1) |
|
for breach of an essential term by the acceptance by
the Lessor of a repudiation of this Document by the Lessee; or |
|
|
(2) |
|
following the failure by the Lessee to comply with a
notice given to the Lessee to remedy any default; |
|
|
|
the Lessee must pay to the Lessor on demand the total of: |
|
(A) |
|
the Rent then payable under this
Document; and |
|
|
(B) |
|
the Lessor’s reasonable estimate of the
Variable Outgoings and Rates and Taxes which would have been
payable by the Lessee; |
|
|
|
for the unexpired balance of the Term if the Term had expired by effluxion of
time; and |
|
(4) |
|
Losses incurred by the Lessor as a result of that
early determination including, but not limited to, all costs of reletting
or attempting to relet the Premises; |
|
|
|
less the rent and other money which the Lessor reasonably expects to obtain by
reletting the Premises between the date of Termination and the date on which
the Term would have expired by effluxion of time; but the Lessor: |
|
(5) |
|
must take reasonable steps to mitigate its Losses and
endeavour to relet the Premises at a reasonable rent and on reasonable
terms; and |
|
|
(6) |
|
is not required to offer or accept rent or terms
which are the same or |
page 28
Lease
|
|
|
similar to the rent or terms contained or implied in this Document. |
|
37.8 |
|
Certificate to be conclusive |
|
|
|
|
A certificate given to the Lessee by the Lessor of the amount of the Rent, Variable
Outgoings and Rates and Taxes under 37.7(c) will be conclusive as between the Parties
except in the case of manifest error. |
|
37.9 |
|
Separate suits |
|
|
|
|
The Lessor may without prejudice to any other remedy, xxx the Lessee for any Money
Payable which may from time to time become due and owing by the Lessee to the Lessor
and in particular, the Lessor may: |
|
(a) |
|
xxx for any instalments of Rent, Variable Outgoings or Rates and
Taxes as and when those instalments become due; and |
|
|
(b) |
|
by a separate suit or suits xxx for any further sum or sums which
may be found to be due or owing by the Lessee to the Lessor on the completion of
the calculations made at the end of each Lease Year; and |
|
|
|
neither the institution of any suit nor the entering of judgment in any suit will bar
the Lessor from bringing a separate or subsequent suit or suits for the balance of any
Money Payable. |
38 |
|
Destruction or damage to building or premises |
|
38.1 |
|
Major Rebuilding Required |
|
|
|
|
If the Building or any part of the Building is so destroyed or damaged: |
|
(a) |
|
as to require major rebuilding of the Building; |
|
|
(b) |
|
that the Premises are Unfit for Occupation; |
|
|
(c) |
|
as to inhibit access to the Premises by the Lessee or the customers
of the Lessee’s business in any substantial manner; or |
|
|
(d) |
|
as to cause significant disruption to the Lessee’s business; |
|
(e) |
|
may within THREE (3) months of the destruction or damage terminate
the Term with immediate effect by notice to the Lessee; |
|
|
(f) |
|
will not be obliged to rebuild the Building or that part damaged;
and |
|
|
(g) |
|
unless the Lessor has Terminated the Term, must within THREE (3)
months of the destruction or damage, give notice to the Lessee advising the
Lessee: |
|
(1) |
|
whether or not the Lessor intends to rebuild; and |
|
|
(2) |
|
if the Lessor intends to rebuild, how long that
rebuilding is estimated to take. |
page 29
Lease
|
38.2 |
|
Abatement of Rent |
|
|
|
|
If: |
|
(a) |
|
the Premises are Unfit for Occupation; and |
|
|
(b) |
|
payment of insurance money in respect of the damage or destruction
causing the Premises to be Unfit for Occupation 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 and are no longer Unfit for Occupation xxxxx and cease to be payable. |
|
38.3 |
|
Lessee may Terminate |
|
|
|
|
If the Premises are Unfit for Occupation and: |
|
(a) |
|
the Lessor has given the Lessee notice under clause 38.1 that it
does not intend to rebuild; or |
|
|
(b) |
|
the Premises remain Unfit for Occupation for a period of at least
THREE (3) months; |
|
|
|
the Lessee may give the Lessor notice to terminate the Term with immediate effect but
without affecting the rights of the Lessor in respect of any unpaid Money Payable or
any antecedent breach by the Lessee of any of the Lessee’s Covenants. |
|
(a) |
|
the Lessee at least NINE (9) months prior to the date for
commencement of a Further Term gives the Lessor notice to grant the Further Term;
and |
|
|
(b) |
|
there is no subsisting default by the Lessee at the date of service
of the notice and at the date for commencement of that Further Term in: |
|
(1) |
|
the payment of the Money Payable; or |
|
|
(2) |
|
the performance or observance of the Lessee’s
Covenants; |
|
|
|
the Lessor must grant to the Lessee that Further Term at the Rent and on the terms
and conditions of this Document. |
|
|
|
If the Lessee remains in possession of the Premises after expiry of the Term with the
consent of the Lessor, the Lessee will be a monthly tenant of the Lessor at a rent
equivalent to: |
|
(a) |
|
the Rent for the period immediately preceding expiry of the Term
increased by CPI or 3%, whichever is the greater; and |
|
|
(b) |
|
|
page 30
Lease
|
(1) |
|
the Lessee’s Proportion of the Rates and Taxes; and |
|
|
(2) |
|
the Lessee’s Proportion of the Variable Outgoings
which would have been payable by the Lessee if a Further Term had been
granted at expiry of the Term; |
|
|
|
and otherwise on the same terms and conditions as this Document. |
|
41.1 |
|
Restoration of the Premises on Termination |
|
|
|
|
Prior to Termination, the Lessee at the Lessee’s cost must restore |
|
(a) |
|
the Premises; and |
|
|
(b) |
|
|
|
(1) |
|
the Facilities |
|
|
(2) |
|
the Building; and |
|
|
(3) |
|
those parts of the Plant and Equipment; |
|
|
|
affected by anything done by the Lessee, |
|
|
|
to its original state having regard to the age of the Premises and the Lessee’s
Covenants. |
|
41.2 |
|
Yield up and surrender keys |
|
|
|
|
On Termination the Lessee must: |
|
(a) |
|
peaceably surrender and yield up to the Lessor the Premises in a
condition consistent with observance and performance of the Lessee’s Covenants; |
|
|
(b) |
|
surrender to the Lessor all keys and security access devices
providing access to or within the Building held by the Lessee whether or not
provided by the Lessor. |
|
41.3 |
|
Removal of Lessee’s Fixtures |
|
|
|
|
Prior to Termination, the Lessee must remove from the Premises and the Building all
the Lessee’s Fixtures and property of the Lessee and promptly make good to the
reasonable satisfaction of the Lessor any damage caused by that removal. |
42 |
|
Lessee’s goods left in common areas |
|
|
|
After termination the Lessor may remove at the Lessee’s expense and risk any goods or
furniture of the Lessee left in the Common Areas and may sell them and use the money
from the sale to offset any unpaid Money Payable |
page 31
Lease
43 |
|
Lessee’s fixtures not removed at termination |
|
43.1 |
|
Lessor may remove |
|
|
|
|
On re-entry the Lessor will have the right to remove any property of the Lessee left
in or about the Premises. |
|
43.2 |
|
Lessee to indemnify |
|
|
|
|
The Lessee INDEMNIFIES the Lessor against all damage caused by the removal of and the
cost of storing that property. |
|
|
43.3 |
|
Property may be sold |
|
|
|
|
All Lessee’s Fixtures and property belonging to the Lessee not removed at Termination
will, at the Lessor’s option become the absolute property of the Lessor and may be
disposed of by the Lessor as the Lessor thinks fit. |
44 |
|
Assigning and charging |
|
44.1 |
|
No assignment without consent |
|
|
|
|
The Lessee must not assign, mortgage or charge the leasehold estate in the Premises
nor sublet, part with possession, or dispose, of the Premises or any part of the
Premises without the consent of the Lessor and except under this clause. |
|
44.2 |
|
Exclusion of the Property Law Act |
|
|
|
|
Sections 80 and 82 of the Property Law Xxx 0000 are excluded. |
|
|
44.3 |
|
Changes in beneficial ownership of shares |
|
|
|
|
If the Lessee is a corporation the shares in which are not quoted on any stock
exchange in Australia, any change in the beneficial ownership, issue or cancellation
of shares in that corporation or any holding company of that corporation within the
meaning of the Corporations Law will be deemed to be an assignment of the leasehold
estate created by this Document. |
|
|
44.4 |
|
Consent to assignment |
|
|
|
|
The Lessor may not unreasonably withhold its consent to an assignment of the leasehold
estate created by this Document if: |
|
(a) |
|
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; |
|
|
(b) |
|
all Money Payable then due or payable has been paid and there is no
existing unremedied breach of the Lessee’s Covenants; |
|
|
(c) |
|
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; |
|
|
(d) |
|
the assignment contains a covenant by the assignee with the Lessor
to pay all Money Payable and to perform and observe all the Lessee’s Covenants;
and |
page 32
Lease
|
(e) |
|
the Lessee pays to the Lessor the amounts specified in clause 44.8. |
|
44.5 |
|
Directors or shareholders must guarantee |
|
|
|
|
If the assignee is a corporation the shares in which are not quoted on any stock
exchange in Australia, it will be a term of the Lessor’s consent to the deed of
assignment that the directors or the substantial shareholders at the option of the
Lessor of that corporation guarantee to the Lessor the observance and performance by
the assignee of the Lessee’s Covenants including payment of all Money Payable. |
|
44.6 |
|
Assignee substitutes for assignor |
|
|
|
|
Subject to the proposed assignee being of similar financial standing as the assignor
Lessee, upon the completion of any assignment of this Lease to an assignee all
obligations of the assignor Lessee under this Lease shall cease. |
|
|
44.7 |
|
Consent to charge |
|
|
|
|
If the Lessor consents to a charge, that consent will be in a form approved by the
Lessor. |
|
|
44.8 |
|
Costs in respect of assigning |
|
|
|
|
If the Lessee wishes to assign the leasehold estate created by this Document the
Lessee must pay to the Lessor: |
|
(a) |
|
all professional and other costs, charges and expenses on a full
indemnity basis incurred by the Lessor of and incidental to: |
|
(1) |
|
the enquiries made by or on behalf of the Lessor as
to the respectability, responsibility and financial standing of each
proposed assignee; and |
|
|
(2) |
|
all other matters relating to the proposed
assignment; |
|
|
|
whether or not the assignment proceeds; and |
|
(b) |
|
if required by the Lessor, a sum nominated by the Lessor on account
of the amounts mentioned in paragraph (a). |
|
44.9 |
|
Consent to sublet |
|
|
|
|
The Lessor may not unreasonably withhold its consent to the subletting of the Premises
or any part of the Premises. |
|
|
|
Unless this Document otherwise expressly provides, the Lessor may withhold consent to
any matter requiring consent without specifying any reason. |
|
|
|
All acts and things which the Lessor is required or empowered to do under this
Document may be done by the Lessor or the solicitor, agent, contractor or employee of
the Lessor. |
page 33
Lease
47 |
|
Lessee liable for permitted persons |
|
|
|
The Lessee is liable for the acts or omissions of Permitted Persons arising out of and
in connection with the rights and obligations created by this Document. |
|
48.1 |
|
Definition |
|
|
|
|
In this clause Notice includes each notice, demand, consent or authority given or
made to any person under this Document. |
|
48.2 |
|
Form and Service |
|
|
|
|
A Notice to a person: |
|
(a) |
|
must be in writing; |
|
|
(b) |
|
may be given or made by: |
|
(1) |
|
delivering it to that person personally; |
|
|
(2) |
|
addressing it to that person and leaving it at or
posting it to: |
|
(A) |
|
the address of that person appearing in
this Document; |
|
|
(B) |
|
that person’s usual or last known place
of residence; |
|
|
(C) |
|
if that person is in business as a
principal, that person’s usual or last known place of business; |
|
|
(D) |
|
if that person is a corporation, its
registered office or principal place of business; or |
|
|
(E) |
|
any other address nominated by that
person by notice to the person giving the Notice; or |
|
(3) |
|
sending a facsimile copy of the Notice to the
facsimile copier number specified in Item 14 of the Schedule or any other
number nominated by that person by notice to the person giving the Notice; |
|
(c) |
|
will be deemed to be given or made: |
|
(1) |
|
if by personal delivery, when delivered; |
|
|
(2) |
|
if by leaving the Notice at an address specified in
paragraph (b), when left at that address unless the time of leaving the
Notice is: |
|
(A) |
|
not on a Business Day; or |
|
|
(B) |
|
after FIVE (5) o’clock in the afternoon
on a Business Day; |
|
|
|
when it will be deemed to be given or made on the next following
Business Day; |
|
(3) |
|
if by post, on the second Business Day following the
date of posting of the Notice to an address specified in paragraph (b);
and |
page 34
Lease
|
(4) |
|
if by facsimile, when despatched by facsimile to a
number specified in paragraph (b)(3), unless the time of dispatch is: |
|
(A) |
|
not on a Business Day; or |
|
|
(B) |
|
after FIVE (5) o’clock in the afternoon
on a Business Day; |
|
|
|
when it will be deemed to be given or made on the next following
Business Day; and |
|
(1) |
|
if given by an individual, by the person giving the
Notice; |
|
|
(2) |
|
if given by a corporation, by a director, secretary
or manager of that corporation; or |
|
|
(3) |
|
by a solicitor or other agent of the person giving
the Notice. |
|
|
|
This Document is governed by, and to be interpreted in accordance with, the laws of
Western Australia and where applicable the laws of the Commonwealth of Australia. |
|
50.1 |
|
Dispute referred to single arbitrator |
|
|
|
|
Except as otherwise provided, any dispute arising out of this Document is to be
determined by a single arbitrator under the provisions of the Commercial Arbitration
Xxx 0000 and the Lessor and Lessee may each be represented by a legal practitioner of
their choice. |
|
50.2 |
|
No abatement |
|
|
|
|
The Lessee must pay the Money Payable without abatement or deduction until whichever
is the earlier of: |
|
(a) |
|
the date of the award of the arbitrator; or |
|
|
(b) |
|
agreement between the parties; |
|
|
(c) |
|
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 Lessee. |
51 |
|
Accrual on daily basis |
|
|
|
Money Payable accrues on a daily basis. |
page 35
Lease
|
|
|
The powers conferred on the Lessor by or under any statute for the time being in force
are, except to the extent inconsistent with the terms and provisions expressed in this
Document, in augmentation of the powers conferred on the Lessor by this Document. |
53 |
|
Moratorium not to apply |
|
|
|
To the fullest extent permitted by law, the provisions of a statute which would, but
for this clause: |
|
(a) |
|
extend or postpone the date of payment of money |
|
|
(b) |
|
reduce the rate of Interest; or |
|
|
(c) |
|
abrogate, nullify, postpone or otherwise affect any condition |
|
|
|
under this Document do not apply to limit or affect the terms of this
Document. |
|
|
|
If any part of this Document is, or becomes, void or unenforceable that part is or
will be, severed from this Document to the intent that all parts that are not, or do
not become, void or unenforceable remain in full force and effect and are unaffected
by that severance. |
|
55.1 |
|
Failure or delay is not waiver |
|
|
|
|
Failure to exercise or delay in exercising any right, power or privilege in this
Document by the Lessor does not operate as a waiver of that right, power or privilege. |
|
55.2 |
|
Partial exercise does not preclude further exercise |
|
|
|
|
A single or partial exercise of any right, power or privilege does not preclude: |
|
(a) |
|
any other or further exercise of that right, power or privilege; or |
|
|
(b) |
|
the exercise of any other right, power or privilege. |
|
|
|
This Document may be varied only by deed executed by the Parties. |
|
|
|
Each Party must execute and do all acts and things necessary or desirable to implement
and give full effect to the provisions and purpose of this Document. |
|
|
|
This Document may be executed in any number of counterparts each of which is an |
page 36
Lease
|
|
|
original and all of which constitute one and the same instrument. |
|
|
|
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 37
Lease
Schedule
|
|
|
The premises situated on the Land comprising of: |
|
• |
|
Office / amenities |
200 m2 approximately |
|
|
|
• |
|
Training room / amenities |
200 m2 approximately |
|
|
|
• |
|
Warehouse |
6,112 m2 approximately |
|
|
|
• |
|
Canopy |
576 m2 approximately |
|
|
|
|
as shown on the attached plan. |
|
|
|
Lot 53 on Plan 12387, being the whole of the land comprised in Certificate of Title
Volume 1770 Folio 067. |
|
|
|
A Term of Ten (10) years commencing on the Date of Commencement and expiring on 28
February 2019 |
|
(a) |
|
A Further Term of Five (5) years commencing on 1 March 2019 and
expiring on 28 February 2024 |
|
|
(b) |
|
A Further Term of Five (5) years commencing on 1 March 2024 and
expiring on 28 February 2029 |
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From the Date of Commencement the Rent is $585,400.00 per annum, payable by
instalments of $48,783.33 per month in advance on the first day of each month. |
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(a) |
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CPI review dates: |
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|
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Every TWELVE (12) months from the Date of Commencement (other than the dates
on which a market review is conducted). |
page 38
Lease
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(b) |
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Market review dates: |
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Every FIVE (5) years from the Date of Commencement. |
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|
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Xxxxx 0, 000 Xxx Xxxxxx Xxxxxxx, Xxxxxxx Xxxxxxxxx |
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As notified by the Lessor to the Lessee from time to time. |
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|
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FOUR PERCENT (4%) above the Westpac Indicator Lending Rate published by
Westpac from time to time. |
11 |
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Painting and Decorating Intervals |
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THREE (3) months prior to the expiry of the Term |
12 |
|
Public Liability Insurance Amount: |
|
|
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TWENTY MILLION DOLLARS ($20,000,000) |
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|
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Administration, warehousing, distribution, sales and manufacturing of fibre cement
products and systems and all associated activities |
|
Lessor: |
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(00) 0000 0000 |
|
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Lessee: |
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(00) 0000 0000 |
page 39
Lease
Executed as a deed:
Executed by Welshpool Landowner Pty Ltd
ACN 108 198 778 in accordance with section 127(1)
of the Corporations Xxx 0000 by authority of its Directors:
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|
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/s/ Xxx Xxxxxxx
|
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/s/ Xxxxxxx X Xxxxxxx |
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Secretary/Director
|
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Director |
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Xxx Xxxxxxx
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/s/ Xxxxxxx X Xxxxxxx |
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Name (please print)
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Name (please print) |
Executed by Xxxxx Xxxxxx Australia Pty Limited
ACN 084 635 558 in accordance with its constitution:
|
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/s/ Xxxxxx Xxxxx
|
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/s/ Xxxxx Xxxx |
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Secretary/Director
|
|
Director |
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|
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Xxxxxx Xxxxx
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Xxxxx Xxxx |
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Name (please print)
|
|
Name (please print) |
page 40