1
EXHIBIT NUMBER 10.19
2
DATED 16 JANUARY, 1998
MFL MUTUAL FUND LIMITED
the Lessor
- and -
PACIFIC LITHIUM LIMITED
the Lessee
DEED OF LEASE
- relating to -
CORNER WIRI STATION ROAD AND MANNER PLACE, WIRI, AUCKLAND
{XXXX/GULLY LOGO}
3
CONTENTS
1. INTERPRETATION ...................................................... 1
2. GRANT OF TENURE ..................................................... 2
3. MAIN TERMS .......................................................... 2
4. RENTAL .............................................................. 3
5. EXPENSES ............................................................ 5
6. INSURANCE AND INDEMNITY ............................................. 7
7. MAINTENANCE ......................................................... 9
8. USE ................................................................. 10
9. ALTERATIONS, ADDITIONS AND SIGNS .................................... 12
10. ASSIGNMENT AND SUB-LETTING ......................................... 13
11. LESSORS RIGHTS OF ENTRY ............................................ 14
12. INTEREST ON ARREARS OF RENT ........................................ 15
13. COSTS .............................................................. 15
14. RISKS OF OCCUPANCY ................................................. 16
15. QUIET ENJOYMENT .................................................... 16
16. DAMAGE OR DESTRUCTION .............................................. 16
17. GENERAL RULES ...................................................... 17
18. DEFAULT ............................................................ 18
19. LAND TRANSFER TITLE ................................................ 18
20. RENEWAL ............................................................ 18
21. GUARANTEE .......................................................... 18
4
THIS DEED is made on 16 January 1998
BETWEEN:
(1) MFL MUTUAL FUND LIMITED at Auckland (the "Lessor"); and
(2) PACIFIC LITHIUM LIMITED at Auckland (the "Lessee").
IT IS AGREED:
1. INTERPRETATION
DEFINITIONS:
In this Deed, unless the context otherwise requires:
(a) The "BUILDING" means the Lessor's building or buildings which
are comprised in the Premises.
(b) The definitions adopted in clause 3 of this Deed shall apply
throughout this Deed.
CONSTRUCTION OF CERTAIN REFERENCES:
In this Deed unless the context otherwise requires:
(c) "AGENTS" includes servants, employees, contractors and
invitees;
(d) "LESSEE" includes the Lessee's executors, administrators,
successors and permitted assigns as the case may be;
(e) "LESSOR" includes the Lessor's executors, administrators,
successors and assigns as the case may be;
(f) The "PREMISES" include all Lessor's fittings, fixtures,
furnishings, plant, machinery, equipment, services, utilities,
water, gas, electrical, sanitary and drainage installations,
fire prevention or detection systems, sprinkler systems and
outlets, heating and airconditioning systems, light fittings,
emergency lighting, floor coverings, partitioning, doors,
windows and other amenities of the Premises;
(g) Paragraph headings are deemed not to form part of this Lease
and shall not be used to interpret this Lease;
(h) The covenants and powers implied in leases by virtue of the
Land Transfer Xxx 0000 and its amendments and the Property Law
Xxx 0000 and its amendments do not apply to this Lease to the
extent that they are inconsistent with this Lease;
----------------------------------
LEASE STAMPED WITH DUTY OF:
$583.20 on 2/2/98
-------------------------------
$ on / /
-------------------------------
Date: Initial: ??
-------------------------------
FOR BRANCH MANAGER INLAND REVENUE
----------------------------------
5
(i) Where more than one Lessee is named the expression the
"LESSEE" includes all those named and their respective
executors, administrators and successors, as the case may be
and each of them shall be jointly and severally liable for all
obligations of the Lessee under this Lease;
(j) Where appropriate, words importing the singular number include
the plural number and words importing the plural number
include the singular number and words importing the masculine
gender include females and bodies corporate and the words
"PERSON" or "PERSONS" include bodies corporate;
(k) Where more than one Guarantor is named the expression the
"GUARANTOR" includes all those named and their respective
executors, administrators and successors, as the case may be,
and each shall be jointly and severally liable for all
obligations of the Guarantor under this Lease.
2. GRANT OF TENURE
The Lessor hereby leases the Premises to the Lessee and the Lessee accepts the
lease of the Premises, for the Term, from the Commencement Date, at the Annual
Rent and on the terms hereinafter set out.
3. MAIN TERMS
(a) PREMISES: All the Lessor's land and buildings
at the corner of Wiri Station Road
and Mana Street, Wiri, Auckland as
the same is comprised in
certificate of title 39A/965 (North
Auckland Land Registry)
(b) TERM: Six (6) years from the Commencement
Date.
(c) COMMENCEMENT DATE: 21 February 1998
(d) TERMINATION DATE: 20 February 2004
(e) ANNUAL RENT: $129,591.00 per annum, plus GST
(subject to review as provided in
this Lease). (Refer clause 4)
(f) INITIAL MONTHLY RENT PAYMENTS: $10,799.25, plus GST.
(g) MONTHLY RENT PAYMENT DATES: 1st day of each and every month
(h) RENT REVIEW DATES: Every second anniversary of the
Commencement Date
2
6
(i) PERMITTED AND REQUIRED USE: General Office and warehousing and
the operation of a chemical
research, development, processing
and production facility and
otherwise as permitted under the
relevant District Plan. (Refer
clause 8)
(j) REDECORATION DATES: Within six (6) months before the
Termination Date. (Refer clause
7(a)(viii))
(k) DEFAULT INTEREST RATE: 3% per annum above the commercial
overdraft rate charged by the
Lessor's bankers. (Refer clause 12)
(l) AMOUNT OF PUBLIC RISK INSURANCE: $10,000,000.00
(m) IMPROVEMENTS RENT PERCENTAGE: 12.5%
(n) RIGHT OF RENEWAL: Nil
4. RENTAL
(a) The Lessee shall pay to the Lessor the Annual Rent by monthly payments
in advance to the Lessor at Auckland and if so required shall do so by
means of an automatic payment order on the Lessee's bank.
(b) If the Commencement Date is not the first day of a calendar month and
if the Lessor so requires, the Lessee shall pay to the Lessor
additional advance rental equivalent to the Annual Rent calculated on a
daily basis from the Commencement Date up to the first day of the
calendar month next succeeding the Commencement Date and thereafter
shall pay the monthly rental payments in advance on the first day of
each calendar month.
(c) The Annual Rent may be reviewed by the Lessor upon each of the Rent
Review Dates and upon each such review the Annual Rent payable for the
next succeeding rental period of the Term shall be the current market
rent of the Premises as determined pursuant to clause 4(d) hereof.
(d) (i) Not earlier than ninety (90) days before the relevant Rent
Review Date or at any time thereafter the Lessor may by notice
in writing to the Lessee ("the Lessor's Notice") specify the
rent which the Lessor considers to be the current market rent
of the Premises as at the relevant Rent Review Date.
(ii) The Lessee may object by notice in writing to the Lessor ("the
Lessee's Notice") within twenty-eight (28) days after receipt
of the Lessor's Notice (time being of the essence). The
Lessee's Notice shall state the rent which the Lessee proposes
as the current market rent of the Premises and shall not be
valid unless it has attached a certificate by a registered
valuer which supports the Lessee's proposed current market
rent.
3
7
(iii) If the parties do not agree as to the current market rent
within fourteen (14) days of the date of delivery to the
Lessor of the Lessee's Notice then the current market rent
shall be determined in the manner provided in sub-paragraph
(v) hereof.
(iv) If the Lessee does not give a notice of objection conforming
with the requirements specified in sub-clause (ii) hereof then
the current market rent specified in the Lessor's Notice shall
be deemed to have been accepted by the Lessee and shall be the
Annual Rent payable by the Lessee from the relevant Rent
Review Date.
(v) (aa) If the current market rent is not agreed or not
deemed to have been accepted by the Lessee as above
then the Lessor and the Lessee shall each within
twenty-one days of the date of delivery to the Lessor
of the Lessee's Notice (the expiration of such period
being hereinafter called "the Date of Appointment"),
appoint a valuer (being a member of the New Zealand
Institute of Valuers) to jointly determine the
current market rent of the Premises and shall notify
each other of such appointment. Time for appointment
of valuers shall be of the essence.
(bb) If either the Lessor or the Lessee fails to appoint a
valuer as aforesaid the determination of such rent
shall be made solely by the valuer appointed by the
other of them.
(cc) Except where sub-paragraph (bb) applies, before
proceeding with their determination the said valuers
shall be required, within fourteen (14) days of the
Date of Appointment, to appoint an umpire and obtain
the umpire's acceptance in writing of his appointment
and if they either fail to do so or are unable to
agree upon an umpire then either the Lessor or the
Lessee may request the President for the time being
of the said Institute to appoint an umpire and obtain
the umpire's acceptance in writing of his
appointment.
(dd) The valuers so appointed shall be required to jointly
determine the current market rent as at the relevant
Rent Review Date within one month of the Date of
Appointment.
(ee) If the said valuers are unable to agree upon a
determination within one (1) month of the Date of
Appointment or within such extended time as the
parties may agree then the current market rent shall
be determined by the umpire.
(ff) All costs of the determination by the valuers or the
umpire of the reviewed Annual Rent shall be borne
equally by the Lessor and the Lessee unless the
current market rent as finally determined under this
clause is either equal to or greater than the rent
specified in the Lessor's Notice (in which event all
such costs shall be borne by the Lessee) or equal to
or less than the rent specified in the Lessee's
Notice (in which event all such costs shall be borne
by the Lessor).
4
8
(vi) (aa) Notwithstanding the foregoing provisions of this
clause the Annual Rent payable by the Lessee
following the relevant Rent Review Date shall not
in any circumstances be less than the Annual Rent
payable immediately prior to that date.
(bb) Any variation in the Annual Rent resulting from
such determination shall take effect on and from
the relevant Rent Review Date.
(vii) Upon determination of the rent following review as aforesaid
the Lessor and the Lessee shall enter into a formal deed of
variation of lease to record the revised rent. Such deed
shall be prepared and completed by the solicitors for the
Lessor and the Lessee shall pay the Lessor's reasonable
legal costs and all stamp duty in respect of such deed of
variation of lease.
(viii) Pending determination of the current market rent as
aforesaid the Lessee shall pay the Annual Rent from the
relevant Rent Review Date at the rate specified in the
Lessor's Notice subject always to adjustment between the
parties once the current market rent is determined as
aforesaid.
(ix) Failure by the Lessor to give the Lessor's Notice prior to
the relevant Rent Review Date shall not deprive the Lessor
of its right to review the rent as at the relevant Rent
Review Date. If the Lessor gives the Lessor's Notice after
the relevant Rent Review Date then such notice shall be of
the same force and effect as if it were given prior to the
relevant Rent Review Date and the reviewed rent when
determined shall date back to and be payable from the
relevant Rent Review Date.
(x) If any moratorium or other law, act or regulation that
applies to this Lease has the effect of postponing any
review of rent as at a Rent Review Date then if and whenever
such moratorium is lifted or the law act or regulation is
repealed or amended so as to permit the Annual Rent to be
reviewed then the review that has been postponed shall take
place as at the date that such moratorium is lifted or such
law, act or regulation is repealed or amended to the intent
that the rent review shall establish the current market rent
of the Premises as at that date and the Lessee shall pay
Annual Rent at the reviewed rate from that date. No
postponement of any rent reviews shall have the effect of
postponing any subsequent Rent Review Date.
5. EXPENSES
(a) Upon demand by the Lessor or by the person to whom payment is due the
Lessee shall pay such of the following expenses as are charged, levied
or assessed against the Lessor or the Lessee in respect of the
Premises:
(i) Rates, charges, assessments, duties, impositions and fees of
any local or government authority in relation to the
Building or the Lessor's interest in the land on which the
building is constructed, or on the Lessor
5
9
(including land tax) to the extent that such tax is
increased by reason of the Lessor's interest in the said
land or the Building as the case may be.
(ii) Insurance premiums, valuation fees and other moneys payable
by the Lessor to insure the Building and Lessor's fixtures
and fittings therein to full insurable reinstatement value
against damage by fire, flood, lightning, xxxxx, xxxxxxx,
damage by aircraft and other accident and to insure against
loss of rent, breakage or damage to plate glass, public
liability and such other insurable risks as the Lessor may
deem necessary or desirable in relation to the Building.
(iii) Charges for water, gas, electricity, fuel, telephones,
sewerage, garbage removal, and other services supplied to
the Building.
(iv) Costs of cleaning, repairs, painting, maintenance,
renovations and replacements of and to the Building and its
appurtenances (including signs, carparks and other
amenities) and the Lessor's fittings and fixtures therein.
(v) Operating and repair and maintenance costs of all Building
plant and equipment including air-conditioning system,
lighting, lifts, escalators, fire detection, fire alarm,
fire prevention and fire fighting equipment, including the
cost of all service contracts and/or New Zealand Fire
Services charges in respect of the same.
(vi) Costs of any caretaking and security services to the
Building and its appurtenances (including car parks and
adjacent amenity areas).
(vii) Rubbish collection charges.
(viii) The costs incurred and payable by the Lessor in supplying to
the territorial authority, a building warrant of fitness and
obtaining reports as required by Xxxxxxx 00 xx xxx Xxxxxxxx
Xxx 0000.
(ix) All reasonable costs associated with the effective operation
management and administration of the Building.
(x) Such other costs and expenses including professional fees
appropriately and reasonably incurred by the Lessor relating
directly to its ownership management and maintenance of the
Building and its appurtenances including carparks surrounds
and services.
(b) In the event that any such expenses are not charged levied or assessed
solely in respect of the Premises, the Lessee will pay a fair
proportion of the same as assessed by the Lessor.
(c) In the event that any such expenses are not charged levied or assessed
in respect of a period coincident with a like period of the Term such
expenses shall be apportioned and the Lessee shall pay its share
thereof to the Lessor.
(d) (i) The Lessee shall pay to the Lessor an amount equivalent
to all goods and services tax ("GST") payable by the Lessor
where GST is payable by reason of either the Lessor or the
Lessee performing their respective obligations or exercising
their respective rights, powers or remedies under this
Lease, including payment of rental and any other payments
6
10
payable by the Lessee under this Lease or where there is
otherwise any supply of goods or services to the Lessee in
relation to this Lease or the Lessee's occupation or use of
the Premises.
(ii) The Lessee shall, when making payment for the supply charged
with GST, pay the GST to the Lessor where payment for the
supply is to be made to the Lessor and in other cases shall
pay the GST to the person to whom payment for such supply is
to be made.
(iii) For the purposes of this clause "supply" shall bear the
meaning ascribed to that word in the Goods and Services Tax
Xxx 0000.
6. INSURANCE AND INDEMNITY
(a) The Lessor will insure and keep insured to the full reinstatement value
thereof the Building and any other improvements on the Land against
destruction or damage by fire, earthquake and such other risks as the
Lessor may deem necessary or desirable and the Lessor may also insure
against consequential loss, public liability and loss of rents and
outgoings for such period of indemnity and on such terms as the Lessor
shall choose and will pay the premiums and other costs payable in
respect thereof provided that the premiums and other costs of any such
insurance cover, shall nevertheless form part of the expenses to be
paid by the Lessee to the Lessor pursuant to this Lease.
(b) The Lessee shall keep current at all times during the Term:
(i) A policy of public risk insurance applicable to the Premises
and the business carried on therein for an amount not less
than the amount stated in clause 3 hereof (being the amount
which may be paid out arising out of any one single accident
or event) or such higher amount as the Lessor may from time
to time require;
(ii) An insurance policy in the joint names of the Lessor and the
Lessee for the full insurable value on a reinstatement basis
against all insurable risks all glass (including plate glass
but excluding any glass located in exterior windows) in the
Premises; and
(iii) An insurance policy in the name of the Lessee for the full
insurable value on a reinstatement basis against all
insurable risks covering all additions to the Premises
carried out by the Lessee and all the Lessee's fixtures and
fittings.
Such insurance policies shall be effected with an insurance company
approved by the Lessor and the Lessee shall as and when so requested by
the Lessor provide the Lessor with copies of such policies and evidence
of currency of such policies.
(c) The Lessee shall ensure that neither the Lessee nor its agents shall do
or permit to be done anything upon the Premises whereby any insurance
effected by the Lessor or by the Lessee may be rendered void or
voidable or (except with the Lessor's prior written approval) whereby
the premium payable on any such insurance shall be liable to increase
AND the Lessee shall as and when required
7
11
by the Lessor pay all extra premiums payable by the Lessor on account
of extra risk caused by the use to which the Premises are put by the
Lessee.
(d) The Lessee shall at all times and in all respects comply with the
requirements of all competent Authorities including but not by way of
limitation the Insurance Council of New Zealand Incorporated and the
New Zealand Fire Service and with the requirements of any relevant
statute, regulation, by-law or other notice issued by any similar
authority relating to fires PROVIDED THAT nothing in this clause shall
require the Lessee to carry out any structural alterations or additions
to the Premises unless the same are required by reason of the Lessee's
particular use of the Premises or the number or sex of the persons
located by the Lessee in the Premises.
(e) The Lessee shall occupy and use the Premises at the Lessee's risk and
release to the full extent permitted by law the Lessor and its agents
from all claims and demands of any kind and from all liability which
may arise in respect of any accident damage or injury occurring to any
person or property in or about the Premises or the Building, except as
provided in sub-clause (g) of this clause.
(f) The Lessee shall indemnify and hold harmless the Lessor (to the extent
that the Lessor is not insured and such insurance is not vitiated by
any act, neglect or omission of the Lessee or any Agent of the Lessee)
from and against all actions, claims, demands, losses, damages, costs
and expenses for which the Lessor shall or may be or become liable in
respect of and arising from:
(i) Negligent use waste or abuse by the Lessee or the Lessee's
agents of any water gas electricity, oil, lighting or other
services and facilities in the Premises or the Building;
(ii) Overflow or leakage of water in, into or from the Premises
caused or contribution to by any act or omission on the part
of the Lessee or the Lessee's agents;
(iii) Loss damage or injury from any cause whatsoever to property
or persons caused or contributed to by the use of the
Premises by the Lessee or the Lessee's agents or by the
condition of the Premises or any part of the Premises; and
(iv) Loss damage or injury from any cause whatsoever to property
or persons within or without the Premises and/or the
Building occasioned or contributed to by any act omission
neglect breach or default on the part of the Lessee or the
Lessee's agents.
(g) Subject as herein provided if any merchandise property or effects which
may be in the Premises during the Term shall be injured or destroyed by
fire water or otherwise howsoever no part of the loss or damage shall
be borne by or recoverable from the Lessor save in the case of the
negligence of, or breach of statutory duty by, the Lessor or its
agents, whether the same shall occur by reason of any fault in the
construction of the Building, or in any fittings or apparatus in the
Building or by reason of the state of repair thereof or howsoever
otherwise the same may be caused or arise.
(h) The Lessee shall be responsible for the payment of any excess provided
for in any insurance policy as a term thereof for the payment of any
sum insured or part thereof.
8
12
7. MAINTENANCE
(a) The Lessee shall:
(i) subject to the Lessor's obligation in subclause (b) of this
clause keep and maintain and at the end or sooner
determination of the Term shall yield up the interior and
exterior of the Premises and any Lessor's chattels in the
Premises in the same good order repair and condition as the
Premises and any such chattels were in at the commencement
of the Term excepting fair wear and tear arising from
reasonable use, damage by fire, earthquake, flood, storm,
act of God and inevitable accident unless in any such event
insurance moneys are rendered irrecoverable in consequence
of any act or default of the Lessee or the Lessee's agents;
(ii) keep clean the Premises, the internal and external surfaces
of all windows and glazing in or bounding the Premises, the
internal surfaces of the walls ceiling and floor of the
Premises and all drains, sinks, pipes, lavatories
exclusively serving the Premises;
(iii) substantially maintain and repair and at the expiration of
the Term, yield up in good substantial and tenantable
repair, the entrances, driveways, grounds, yards and parking
areas (if any) forming part of the Premises and the
exception of fair wear and tear shall not apply to the
foregoing obligation. The Lessee shall, as and when required
by the Lessor during the Term (or any renewal), replace
and/or repair by resurfacing or resealing the entranceways,
yards and parking areas, or such parts of them, as may
require replacement or repair;
(iv) at the end or sooner determination of the Term or at any
time when the Lessor shall decide that it is warranted,
supply and replace carpet to all carpeted areas of a quality
no less than the original carpet and of a colour and style
selected by the Lessor;
(v) supply and install suitable replacements for all damaged
defective or missing windows and light fittings light bulbs
and tubes in the Premises;
(vi) not leave rubbish bins outside the Premises, except at the
times for collection of rubbish, and shall regularly cause
all rubbish to be removed from the Premises;
(vii) give to the Lessor prompt notice in writing of any accident
to or defect in the Premises whether or not the Lessee may
be responsible to make good the same pursuant to this Lease;
(viii) as and when reasonably required by the Lessor repaint and
re-decorate in a proper and tradesmanlike manner the
interior of the Premises to a specification to be approved
by the Lessor and shall in any event shall do so on the
Redecoration Dates. Should the Lessee fail to redecorate the
Premises as herein required the Lessor may undertake
redecoration
9
13
at the Lessee's expense and the Lessee shall pay on demand
all amounts so expended to the Lessor;
(ix) upon demand pay to the Lessor the entire cost of making good
to the complete satisfaction of the Lessor any damage to any
part of the Building, or to the Premises or any part thereof
caused by the Lessee and the Lessee's agents and the entire
cost of the replacement of all glass broken by the Lessee
and the Lessee's agents; and
(x) follow, observe and comply with the requirements of any
compliance schedule issued under the Building Xxx 0000, in
respect of the Premises, Building or plant, equipment and
services therein.
(b) The Lessor shall, within a reasonable time after any want of repair to
the roof or exterior of the Building is brought to the attention of the
Lessor by notice in writing, effect such repairs as are necessary to
make good such want of repair PROVIDED that if any goods merchandise or
property of any kind in the Premises shall be damaged or destroyed by
inflow or leakage of water in any manner howsoever the Lessor shall be
under no liability in respect thereof and no part of the loss shall be
borne by the Lessor unless the same was solely and directly caused by a
want of repair to the roof or exterior of the Building and the Lessor
shall have received previous notice in writing from the Lessee of the
want of repair which shall have caused such damage and shall have
failed to remedy such want of repair within a reasonable time after
having received such notice from the Lessee but the Lessor shall not be
under any obligation to effect any repairs pursuant to the provisions
of this clause or incur any liability hereunder where want of repair
results from any negligent or wilful act, omission or default of the
Lessee or its agents PROVIDED FURTHER that all expenses incurred by the
Lessor under this provision shall form part of the Building Expenses.
8. USE
(a) The Lessee shall use the Premises for the Permitted and Required Use
and for no other purpose without the consent in writing of the Lessor
on each occasion first had and obtained. Where the Lessor does, in its
discretion, consent to a change in use, then the Lessor may require as
a precondition of its consent, that the Lessee indemnify the Lessor in
writing (in a form satisfactory to the Lessor, having regard to the
substance and solvency of the Lessee and the likely or anticipated
costs of compliance), from and against all costs, claims or liabilities
the Lessor may suffer or incur as a result of or arising from the
Lessor being required or obliged, as a consequence of the change in
use, to carry out alterations or additions to the Building or the
Premises, or any of the plant, equipment or services therein pursuant
to the Building Act 1991 or the building code appearing in the Building
Regulations.
(b) The Lessee shall not carry on the Permitted and Required Use in a way
which is noxious noisome or offensive to any person.
(c) The Lessee shall not bring upon the Premises anything of such weight as
may damage the Building or any part thereof.
10
14
(d) The Lessee shall not allow on the Premises any birds or animals without
the Lessor's prior written consent.
(e) The Lessee shall comply in all respects with all Acts, By-laws,
Regulations and other laws in force in New Zealand and with all
requisitions made thereunder so far as they relate to the Premises and
the Lessee's use of the Premises PROVIDED THAT the Lessee shall not be
liable to effect any structural work to the Premises which may be
required pursuant to any such Act, Regulation or By-law unless
occasioned by the Lessee's use of the Premises or the number or sex of
persons located by the Lessee in the Premises.
(f) If, as a result of any requisition or requirement lawfully made under
any Act, Regulation or By-law the Lessor is obliged to expend moneys on
any improvement, addition, alteration or renewal of the Premises or any
part of the Premises the Lessee shall throughout the Term, in addition
to the Annual Rent payable under this Lease, pay to the Lessor an
annual sum calculated by applying to the Lessor's expenditure the
Improvements Rent Percentage and the calendar monthly payments of
rental hereinbefore mentioned shall increase accordingly as from the
day of the month in which such improvement addition alteration or
renewal is completed PROVIDED THAT if the cost to the Lessor of
compliance with any such requisition or requirement is such that it
would be uneconomic or otherwise unreasonable for the Lessor to be
bound to incur such cost and if the Lessor intends to demolish the
Building or the Premises then the Lessor may determine this Lease by
giving to the Lessee three month's notice in writing.
(g) Except during such periods as the Premises shall be in active use, the
Lessee shall keep all exterior doors and windows of the Premises
locked.
(h) The Lessee shall not interfere with or overload or use in an unlawful
or imprudent manner the electrical installations and wiring of the
Premises.
(i) The Lessee shall at all times comply with the fire safely directions of
the Lessor in respect of the Building. If the fire alarm system in the
Building is activated other than as a result of fire because of any act
or omission of the Lessee or its agents then the Lessee shall pay to
the Lessor any costs and expenses incurred by or levied upon the Lessor
in consequence of such activation.
(j) The Lessee shall not, without the prior approval in writing of the
Lessor, place on the exterior of the Premises any radio or television
aerial or any loudspeakers, display screens or similar devices and
shall not without such approval use or permit to be used any radio,
gramophone, television or similar device likely to be heard or seen
from outside the Premises PROVIDED HOWEVER that any approval so given
may at any time be withdrawn.
(k) The Lessee acknowledges that no representation or undertaking has been
given by or on behalf of the Lessor in respect to the suitability of
the Premises or the Building for the Permitted and Required Use or as
to the fittings, finish, facilities or amenities of the Premises or the
Building.
11
15
9. ALTERATIONS, ADDITIONS AND SIGNS
(a) The Lessee shall not remove any fittings or fixtures or plant (other
than the Lessee's fittings, fixtures and plant) from the Premises and
shall not cut or damage the Premises or any part of the Premises, and
shall not make any additions or alterations to the Premises without the
prior written consent of the Lessor.
(b) The Lessee shall not erect affix or paint on the exterior of the
Building any sign or advertising without the written consent of the
Lessor. At the end or sooner determination of the Term the Lessee shall
remove all signs and make good all damage caused thereby and repaint to
the satisfaction of the Lessor.
(c) The Lessee shall make no alteration of or addition to the Premises or
any part of the Premises or to the Lessor's fixtures and fittings
contained in the Premises without in each case first obtaining the
written consent of the Lessor thereto for which purpose the Lessor may
require the Lessee to submit plans and specifications of the proposed
work and have the same carried out pursuant to the supervision or
directions of a registered architect. The consent of the Lessor shall
not be arbitrarily or unreasonably withheld to internal subdivision
work if the Lessee's proposed work complies with standards which the
Lessor may from time to time set as to the type quality material colour
and size for internal partitions to be used in the Building and if any
alteration to the services utilities or amenities in the Building does
not in the opinion of the Lessor's consultants overload, endanger or
prejudice the proper working of those services utilities or amenities.
In respect of work involving the aforesaid services utilities or
amenities the Lessor may require such work to be carried out by a
contractor and under the supervision or direction of a consultant each
being a person approved by the Lessor. The cost of any alteration or
addition to the Premises and to the services utilities or amenities
thereof together with all consultants' fees incurred either by the
Lessee or by the Lessor in connection therewith shall be payable to the
Lessor by the Lessee upon demand.
(d) The Lessee shall repair and make good any damage which may be caused to
existing structures, paving, plant, equipment, fixtures, fittings,
ceiling tiles, painted surfaces, floor coverings or other parts of the
Building or any chattels therein either directly or indirectly as a
result of the carrying out of any work referred to in this clause by or
at the request of the Lessee and shall indemnify the Lessor for any
loss or damage caused by or arising out of anything done or omitted by
the Lessee or its agents in or about the carrying out of the said work.
(e) Before commencing any such work the Lessee shall effect, and shall
procure that any contractor or sub-contractor employed by the Lessee in
the performance of any work in respect of the Premises shall effect,
(and provide proof of currency of) Contractor's All Risks and Public
Risk policies and any other insurance cover required by the Lessor in
respect of such work including all such provisions as may be required
by the Lessor.
(f) All partitions, fixtures, fittings and furnishings which may be placed
or installed in the Premises by the Lessee shall be and remain the
property of the Lessee, who shall unless otherwise provided in this
Lease be responsible for all maintenance and insurance thereof. The
Lessee (not being in breach) may at any time before, and will if
required by the Lessor at, the end or sooner determination of the Term
remove them and make good at the Lessee's own expense all resulting
damage.
12
16
Should the Lessee not comply by the end or sooner determination of the
Term all of such items mentioned in that notice shall vest in the
ownership of the Lessor without any compensation being payable to the
Lessee. The Lessor may then at its option remove all or any of the same
from the Premises and recover from the Lessee the cost of so doing and
making good any damage occasioned by such removal.
(g) In exercising its rights in the foregoing sub-clause, the Lessee shall
not do or allow anything to occur which would constitute a breach of
the compliance schedule for the Building or which would in any way
prevent or inhibit the Lessor from obtaining a building warrant of
fitness when one is next due to be obtained following the expiry or
earlier determination of this Lease.
10. ASSIGNMENT AND SUB-LETTING
(a) The Lessee shall not assign, sublet, mortgage or part with possession
(which shall be deemed to include sharing or parting with possession)
or the right to possession of the Premises or any part thereof for the
whole or any part of the Term without the prior written consent of the
Lessor PROVIDED THAT such consent shall not be unreasonably or
arbitrarily withheld to the assignment of the whole of the Premises or
to the subletting of the whole or any part of the Premises to a
respectable assignee or sublessee of good financial standing (the onus
of proving same to be on the Lessee) to whom no objection shall be
taken by the insurer or insurers for the time being carrying the
insurance risks on the building and who will use the Premises for the
Permitted and Required Use PROVIDED FURTHER THAT it shall be a
condition precedent to any such consent that:
(i) the Lessee shall produce evidence to the Lessor to
demonstrate to the satisfaction of the Lessor that any
proposed assignee (and in the case of an assignment to which
sub-clause (c) below applies, the person or persons required
to give a guarantee in terms of that sub-clause) or
sublessee is responsible and of good financial standing and
intends to use the Premises for the Permitted and Required
Use;
(ii) the Annual Rent and all other monies payable by the Lessee
under this Lease shall have been punctually paid throughout
the term and are up-to-date;
(iii) there is then no existing unremedied breach of any of the
terms of this Lease;
(iv) in the case of an assignment of this Lease the assignee
shall before entering into possession of the Premises
execute and deliver to the Lessor, a deed of covenant in
favour of the Lessor whereby, in addition to and without
prejudice to the Lessor's right against the Lessee or any
other person, the assignee shall covenant to pay the rent
hereby reserved and to perform and observe all the Lessee's
obligations under this Lease (such deed of covenant to be
prepared by the Lessor's solicitors at the Lessee's cost);
13
17
(v) the Lessee shall have procured the execution and delivery to
the Lessor of any covenant required under subclause (c) of
this clause; and
(vi) the Lessee shall have paid to the Lessor all costs incurred
by the Lessor of or incidental to the giving of its consent.
(b) Where the Lessee is a limited liability company, any transfer of any
share in that company or any reclassification of the rights attaching
to any such share or any other arrangement which results in a change of
effective control of the Lessee shall be deemed to be an assignment for
the purposes of this paragraph AND any assignment or underletting of
the type specified in Section 109(2) of the Property Law Xxx 0000 shall
be deemed to be an assignment for the purposes of this clause.
(c) In addition to the aforesaid deed of covenant, in the case of either an
assignment of the Lessee's rights under this Lease to a body corporate
(not being a company whose shares are listed on the New Zealand Stock
Exchange), or a transfer of shares, reclassification or arrangement of
the type mentioned in sub-clause (b) hereof the Lessee shall, if
required so to do by the Lessor, procure the execution of a guarantee
in favour of the Lessor by the persons holding the right to exercise a
majority of votes at general meetings of the body corporate or
effectively controlling the body corporate whereby such persons shall
personally guarantee payment of the rent hereby reserved and compliance
with all the Lessee's obligations under this Lease and such guarantee
shall be prepared by the Lessor's solicitors at the cost in all
respects of the Lessee.
(d) Any consent given by the Lessor to a subletting shall extend only to
such subletting and notwithstanding anything contained or implied in
such sub-lease such consent shall not permit the sub-lessee to deal
with the sub-lease in any way without the further consent of the
Lessor.
11. LESSORS RIGHTS OF ENTRY
(a) The Lessee shall permit the Lessor and its agents at any time or times
during the Term upon reasonable prior written notice (except in the
event of emergency in which case the Lessor may enter at any time
without notice) to enter upon the Premises and there to do all things
required in the opinion of the Lessor for the purpose of complying with
the terms of any legislation affecting the Premises or the Building or
for the purpose of complying with any notice served on the Lessor or
the Lessee by any competent authority or for the purpose of repairing
and maintaining the Premises or any adjoining Premises or the Building
or for the purpose of installing, repairing, maintaining or renewing
any drainage, water, electrical, gas or other installation in the
Building PROVIDED THAT nothing in this subclause shall oblige the
Lessor to carry out any repairs or maintenance or other work PROVIDED
FURTHER that if the Lessor carries out any such work it shall use its
best endeavours to minimize inconvenience to the Lessee bit under no
circumstances shall the Lessor be obliged to pay compensation to the
Lessee or any other person by reason of the Lessor exercising such
rights.
(b) The Lessee shall permit the Lessor and its agents, servants or
contractors at any time or times upon reasonable prior notice to enter
upon the Premises to view the condition thereof.
14
18
(c) The Lessor may give notice in writing to the Lessee specifying any
defects in the Premises or breaches of covenant under this Lease for
which the Lessee is liable. The Lessee shall within such reasonable
time as shall be specified in such notice make good any such defect or
breach of covenant. If the Lessee fails to comply with such notice
within the time specified the Lessor may, at its option and without
prejudice to any other rights, powers or remedies do all things which
the Lessor shall consider to be necessary to make good such failure and
any moneys expended by the Lessor in so doing, together with interest
thereon at the Default Interest Rate computed from the time or
respective times of such moneys being actually expended by the Lessor
until actual payment thereof by the Lessee to the Lessor, shall be
payable on demand by the Lessee to the Lessor as rent or may be
recovered by distress as arrears of rent.
(d) If the Lessee either shall not elect to or shall not be entitled to
renew this Lease during the period of three (3) months immediately
preceding the expiration of the Term, the Lessor may enter upon the
Premises at any reasonable time with its agents and with other persons
for the purpose of showing the Premises to such other persons.
12. INTEREST ON ARREARS OF RENT
The Lessee shall pay to the Lessor interest calculated at the Default Interest
Rate computed on a daily basis on all rental and on all other sums of money for
which the Lessee is liable under this Lease as from the seventh day after any
such rental or sums of money shall have become due and payable until the actual
date of receipt thereof by the Lessor.
13. COSTS
In addition to the Annual Rent and other moneys payable by the Lessee under this
Lease, the Lessee shall pay:
(a) The Lessor's legal costs (calculated on a solicitor/client basis) of
and incidental to this Lease or any extension, renewal or variation of
this Lease and all stamp duty and other reasonable disbursements of the
Lessor's solicitors in relation to this Lease and the Lessor's costs in
obtaining any consents or approvals associated with the granting of
this Lease or any extension, renewal or variation of this Lease.
(b) All costs charges and expenses for which the Lessor shall become liable
in consequence of, or in connection with, any breach or default by the
Lessee in the performance or observance of any of the terms covenants
and conditions of this Lease.
15
19
14. RISKS OF OCCUPANCY
(a) The Lessee shall keep indemnified the Lessor from and against all legal
liability, loss, damages, costs and expenses (including loss, damage or
injury to property or persons for which the Lessor shall or may be or
become liable) arising from or caused or contributed to either by the
negligence of the Lessee or by any agent of the Lessee, or by the
overflow or leakage of water (including rain water) into or from the
Premises caused or contributed to by the negligent or wilful act,
omission or default of the Lessee or any agent of the Lessee; or by any
breach of the Lessee's obligations under this Lease PROVIDED that the
Lessee shall not be under any obligation to indemnify the Lessor in
respect of any occurrence for which the Lessor is indemnified and
entitled to recover under the provisions of any insurance policy
effected in accordance with this Lease or otherwise.
(b) The Lessee shall occupy and use the Premises at the Lessee's risk in
all respects and the Lessee releases to the full extent permitted by
law the Lessor and its agents from all claims, demands and liability
which may arise in respect of any accident, damage or injury occurring
to any person or property in or about the Premises or the Building.
15. QUIET ENJOYMENT
For so long as the Lessee shall have complied with all its obligations under
this Lease and except as herein provided, neither the Lessor, nor any person
claiming by, through or under the Lessor, shall disturb the Lessee's quiet
enjoyment of the Premises.
16. DAMAGE OR DESTRUCTION
(a) If the Building or any part of the Building is destroyed or damaged and
the Lessor decides to demolish the Building notwithstanding that the
Premises may be unaffected or only partially affected by such damage or
destruction; or if the Premises shall be destroyed or so damaged as to
render the same untenantable, then this Lease shall determine and the
Lessee shall be liable for payment of rent only up to the date of such
determination but such determination shall not discharge any party in
respect of any antecedent breach of this Lease.
(b) If the Premises or any part of the Premises (other than a minor part
not affecting the usefulness thereof to any material extent) shall be
damaged to such an extent as to render it inexpedient in the opinion of
the Lessor to repair such damage and whether or not the Premises shall
be rendered untenantable, the Lessor may determine this Lease by giving
to the Lessee 30 days notice in writing but such determination shall
not discharge any party in respect of any antecedent breach of this
Lease.
(c) If the Premises or any part of the Premises shall be damaged but not to
such an extent as to render the same untenantable and if the Lessor
shall not elect pursuant to the foregoing provisions to determine this
Lease, the Annual Rent shall xxxxx proportionately to the net lettable
area of the Premises rendered unusable by reason of such damage and in
case of any dispute or difference as to the amount or period of such
abatement or as to whether or not the Premises
16
20
or any part of the Premises, or the area of any such part, are
untenantable such dispute shall be referred to two arbitrators, one to
be appointed by each party, and their umpire in accordance with the
Arbitration Xxx 0000 or any then substituting statutory modification or
re-enactment thereof.
(d) If the Premises or any part of the Premises shall be damaged and if
this Lease shall not have been determined pursuant to the foregoing
provisions and if the Lessor is able to obtain all necessary permits
and consents and if no mortgagee of the Lessor shall require the
proceeds of the insurance claim relating to such damage to be paid to
it and if the proceeds of such insurance claim will be sufficient
properly to repair such damage, then the Lessor shall with all
reasonable speed expend all such insurance moneys receivable in
repairing such damage PROVIDED THAT the Lessor shall not be obliged to
expend any money in the reinstatement of fittings or fixtures or
furnishings installed in the Premises by the Lessee and PROVIDED
FURTHER that the Lessor may repair the damage to the Premises in such
form and manner as the Lessor shall choose so long as the Premises as
so repaired shall be substantially similar to the Premises as they were
prior to such damage occurring. For the purposes of such repairs the
Lessor may require the Lessee to vacate all or part of the Premises for
such period as may be necessary and the Lessee shall not be entitled to
any compensation or damages on account thereof.
17. GENERAL RULES
The Lessee and its agents shall:
(i) Deposit all waste in proper receptacles in such locations as the Lessor
shall from time to time designate.
(ii) Not permit foodstuffs to be prepared within the Premises except in a
place designed for the particular purpose PROVIDED that this shall not
prohibit the serving of morning and afternoon teas within the Premises.
(iii) Not use any method of lighting, cooling or heating other than
appropriate conventional electrical appliances.
(iv) Use for the reception, delivery or other movement of any goods only
such parts of the Building and at such times and in such manner as the
Lessor may from time to time permit.
(v) Comply with all requirements of the Lessor and relevant authorities
regarding evacuation of the Building in the event of emergency
including practise of evacuation drills and keep the Lessor informed of
the name or names of such person employed by the Lessee who is charged
with the responsibility of supervising such evacuation.
(vi) Not permit the sale of liquor within the Premises save and except in
accordance with the Licensing Laws.
(vii) Not burn any substance within the Building.
(viii) Not permit any person to sleep in or reside upon the Premises.
17
21
(ix) Advise the Lessor of the private address and telephone number of the
Lessee or if the Lessee is a corporation, of a responsible person
employed by the Lessee and shall keep the Lessor promptly informed of
any change of such address or telephone number.
18. DEFAULT
(a) If the Annual Rent shall be unpaid for seven (7) days after the due
date for payment then (whether or not any demand has been made) the
Lessor may enter upon the Premises and distrain for the Annual Rent so
in arrear.
(b) If the Annual Rent shall be unpaid for fourteen (14) days after the due
date for payment (whether or not demand has been made), or if the
Lessee shall have become insolvent, or shall have compounded with or
assigned the Lessee's estate or any substantial part thereof, for the
benefit of his/her creditors or any number of such creditors or being a
company shall have gone into liquidation, whether voluntarily or
otherwise, except for the purposes of reconstruction, or shall have
gone into receivership, or if the Lessee shall be in breach of its
obligations under this Lease and if the Lessor shall have given to the
Lessee notice of such breach requiring the Lessee to remedy such breach
within a specified reasonable period and if such breach shall continue
after the expiration of such period then the Lessor may re-enter upon
any part of the Premises in the name of the whole and thereby determine
this Lease but without releasing the Lessee or any Guarantor from
liability in respect of Annual Rent accrued to the date of such
re-entry or of any antecedent breach of the Lessee's obligations under
this Lease.
(c) For the purposes of this clause "Annual Rent" shall include all
payments of every kind for which the Lessee is liable under this Lease.
19. LAND TRANSFER TITLE
(a) The Lessee shall not be entitled to require registration of this Lease
under the Land Transfer Xxx 0000.
(b) The Lessor may sell or transfer its interest in the Premises to any
person without reference to the Lessee.
(c) The Lessee shall not register a caveat against the Lessor's title to
the Premises.
20. GUARANTEE
In consideration of the Lessor at the request of the Guarantor entering into
this Lease with the Lessee, the Guarantor covenants and agrees with the Lessor
(as construed in accordance with clause 1(e) of this Lease) that:
18
22
(a) The Guarantor guarantees to the Lessor that the Guarantor shall with
the Lessee, be jointly and severally liable to the Lessor for the due
payment of all monies to be paid by the Lessee under this Lease and for
the due performance and observance by the Lessee of all the covenants
terms and conditions of this Lease on the part of the Lessee to be
performed and observed.
(b) The Guarantor shall indemnify the Lessor and shall at all times
hereafter keep the Lessor indemnified from and against all losses and
expenses which the Lessor may suffer or incur in consequence of any
breach or non-observance of any of the covenants terms and conditions
of this Lease on the part of the Lessee to be performed or observed and
the Guarantor agrees that the Guarantor shall remain liable to the
Lessor under this indemnity notwithstanding that as a consequence of
such breach or non-observance the Lessor has exercised any of its
rights under this Lease including its rights of re-entry and
notwithstanding that the Lessee (being a company) may be wound up or
dissolved or (being a natural person) may be declared bankrupt or
insolvent and notwithstanding that the guarantee given by the Guarantor
may for any reason whatsoever be unenforceable either in whole or in
part.
(c) On any default or failure by the Lessee to observe and perform any of
the covenants terms and conditions of this Lease the Guarantor will
forthwith on demand by the Lessor pay the rent and make good to the
Lessor all losses and expenses sustained or incurred by the Lessor by
reason or in consequence of any such default or failure by the Lessee
in the payment of rent or in performing or observing any of the
covenants terms and conditions of this Lease without the necessity of
any prior demand having been made on the Lessee.
(d) The liability of the Guarantor under this guarantee and indemnity shall
not be affected by the granting of time or any other indulgence to the
Lessee or by the compounding compromise, release abandonment waiver
variation or renewal of any of the rights of the Lessor against the
Lessee or by any other thing which under the law relating to sureties
would or might but for this provision release the Guarantor in whole or
in part from the obligations of the Guarantor under this Lease.
(e) Notwithstanding that as between the Guarantor and the Lessee the
Guarantor may be a surety only nevertheless as between the Guarantor
and the Lessor the Guarantor shall be deemed to be a principal debtor
jointly and severally with the Lessee.
(f) To the fullest extent permitted by law the Guarantor hereby waives such
of the rights of the Guarantor as surety or indemnifier (legal,
equitable, statutory or otherwise) which may at any time be
inconsistent with any of the provisions of this Lease.
(g) The covenants and agreements made or given by the Guarantor shall not
be conditional or contingent in any way or dependent upon the validity
or enforceability of the covenants and agreements of any other person
and shall be and remain binding notwithstanding that any other person
shall not have executed or duly executed this Lease or this guarantee
and indemnity.
(h) The Guarantor waives any right to be notified of or to approve any
variation of, or any review of, rental payable under this Lease or any
determination of any new rental pursuant to this Lease and the
Guarantor acknowledges that,
19
23
notwithstanding the absence of any such approval or consent, this
guarantee shall apply to the new rental as so varied or determined.
(i) If this Lease shall contain any right of renewal for a further lease
and the Lessee shall exercise such right the grant of such a further
lease shall be subject to the Guarantor guaranteeing the obligations of
the Lessee under such further lease and indemnifying the Lessor in
respect thereof on the same basis as the guarantees and indemnities
contained in this Lease.
(j) The Guarantor agrees, upon demand, to sign any further lease or other
document to record the application of this guarantee to any variation
or determination of the Annual Rental from time to time during the term
and to any renewal or extension of the Term or to any new lease granted
to the Lessee pursuant to the exercise of any right recording in this
Lease.
(k) The obligations of the Guarantor under this Lease shall continue to
remain in force until all rent or other monies payable pursuant to this
Lease shall have been paid and until all other obligations and
indemnities shall have been performed, observed and satisfied and such
obligations shall not be reduced or affected by any notice to quit
given by either party to this Lease or the death, insolvency,
liquidation or dissolution of the Lessee or the Guarantor or either of
them.
(l) Where there is more than one person or corporation which together
constitute the Guarantor to this Lease the obligations and liabilities
of each and every such person or corporation shall be joint and
several.
(m) The transfer or assignment of the land or the Building or the Lessor's
interest in this Lease shall not release or discharge the Guarantor or
any guarantor of the Lessee's obligations under this Lease and any such
Guarantor shall upon demand enter into, execute and deliver any further
document which any such transferee or assignee may require to ensure
that the obligations of the Guarantor are enforceable by and for the
benefit of any such transferee or assignee.
EXECUTED as a Deed.
EXECUTED by )
MFL MUTUAL FUND LIMITED as Lessor )
(under its name and seal) )
by )
/s/ [Illegible] Director
[MFL Mutual Fund SEAL]
/s/ [Illegible] Director
EXECUTED by )
PACIFIC LITHIUM LIMITED as Lessee )
by its duly authorised directors: )
/s/ Xxxxx X. Xxxxxxxxx 16.01.98 Director
----------------------------------------
/s/ Xxxxx Xxxxx 16.01.98 Director
----------------------------------------
20
