EXHIBIT 10.2
DATED DAY OF
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MEMORANDUM OF LEASE
BETWEEN
MINISTER FOR TRANSPORT AND URBAN PLANNING A BODY CORPORATE
UNDER THE ADMINISTRATIVE ARRANGEMENTS ACT 1994
THE LESSOR
-AND-
AUSTRALIA SOUTHERN RAILROAD PTY LTD
A.C.N. 079 444 296
THE LESSEE
CROWN SOLICITOR
Xxxxx 0, 00 Xxxxx Xxxxxx, Xxxxxxxx XX 0000
_________________________________________________________________________
NOTE:- Every annexed page shall be signed by the parties to the dealing, or
where the party is a corporate body, be signed by the persons who have
attested the affixing of the seal of that body to the dealing.
Railcor6
7 November 1997
CONTENTS
Clause PAGE
1. DEFINITIONS AND INTERPRETATION................................................................... 1
1.1 Definitions..................................................................................... 1
1.2 Interpretation.................................................................................. 7
1.3 Business Day.................................................................................... 8
2. LEASE, RESERVATIONS AND ANCILLARY RIGHTS........................................................ 8
2.1 Grant of Lease.................................................................................. 8
2.2 Term of Lease................................................................................... 8
2.3 Holding over.................................................................................... 8
2.4 Right of Renewal................................................................................ 8
2.5 Ancillary Rights................................................................................ 10
2.6 Reservation..................................................................................... 10
2.7 Ancillary Rights over SACBH Land................................................................ 10
2.8 Agreement between SACBH and Lessee.............................................................. 10
2.9 Variation if Lessor is not a State Agency....................................................... 11
3. RENT, AND OUTGOINGS.............................................................................. 11
3.1 Rail Corridor Rent.............................................................................. 11
3.2 Balance of the Land Rent........................................................................ 12
3.3 Payment of Rent................................................................................. 12
3.4 Payment of Outgoings............................................................................ 12
3.5 Commercial Rent................................................................................. 12
4. LAND AREA SUBJECT TO VARIATION................................................................... 13
4.1 Variations...................................................................................... 13
4.2 Surrender of land not used for Railway Operations............................................... 13
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NOTE:- Every annexed page shall be signed by the parties to the dealing, or
where the party is a corporate body, be signed by the persons who have
attested the affixing of the seal of that body to the dealing.
4.3 Process (Surrender and Acquisition of Track Infrastructure)..................................... 16
4.4 Disputed Valuation.............................................................................. 17
4.5 Process (Hazard Removal Obligations)............................................................ 17
4.6 Surrender of the Lease and Consequential Matters................................................ 18
4.7 Adjustments to Rail Corridors................................................................... 19
4.8 Use of Track Infrastructure..................................................................... 19
5. LESSOR'S RIGHTS AND OBLIGATIONS.................................................................. 20
5.1 Quiet enjoyment................................................................................. 20
5.2 Reservations.................................................................................... 20
5.3 Permit use of existing rights................................................................... 20
5.4 Lessor's right to enter Land.................................................................... 21
5.5 Dedication or easement.......................................................................... 21
5.6 Lessor may perform Lessee's obligations......................................................... 21
5.7 Lessor's consent................................................................................. 21
5.8 Property Records................................................................................. 22
5.9 No compensation for buildings and improvements................................................... 22
5.10 Title to Land................................................................................... 22
5.11 Lodgement of Documents.......................................................................... 22
5.12 The Existing Leases............................................................................. 23
5.13 Creation of Easements........................................................................... 23
5.14 Native Title.................................................................................... 24
6. LESSEE'S OBLIGATIONS.............................................................................. 25
6.1 General obligations.............................................................................. 25
6.2 Use.............................................................................................. 26
6.3 Maintenance of Land.............................................................................. 28
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NOTE:- Every annexed page shall be signed by the parties to the dealing, or
where the party is a corporate body, be signed by the persons who have
attested the affixing of the seal of that body to the dealing.
6.4 Notification of damage............................................................................ 28
6.5 Lessor's interest in Land......................................................................... 29
6.6 Cost and risk of Lessee's obligations............................................................. 29
6.7 Access to Records................................................................................. 29
6.8 National Estate Significance...................................................................... 29
7. INSURANCE, RISK AND INDEMNITIES.................................................................... 30
7.1 Public liability.................................................................................. 30
7.2 Workers' compensation............................................................................. 31
7.3 Industrial Special Risks.......................................................................... 31
7.4 Proceeds of Insurance............................................................................. 31
7.5 Policies.......................................................................................... 32
7.6 Maintain insurance................................................................................ 32
7.7 Disclaimer........................................................................................ 33
7.8 Lessor's Rights to Insure......................................................................... 33
7.9 Lessee's risk..................................................................................... 33
7.10 Release of Lessor................................................................................ 33
7.11 Indemnity........................................................................................ 34
7.12 Continuing indemnity............................................................................. 34
8. ASSIGNMENT, SUBLEASE AND MORTGAGE.................................................................. 34
8.1 Assignment........................................................................................ 34
8.2 Sublease and Licensing............................................................................ 35
8.3 Permitted Dealing................................................................................. 35
8.4 Mortgage.......................................................................................... 35
8.5 Dealing with Track Infrastructure................................................................. 37
9. TERMINATION........................................................................................ 37
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NOTE:- Every annexed page shall be signed by the parties to the dealing, or
where the party is a corporate body, be signed by the persons who have
attested the affixing of the seal of that body to the dealing.
9.1 Events of default................................................................................. 37
9.2 Process (Termination)............................................................................. 40
9.3 Appointment of attorney........................................................................... 40
9.4 Indemnity for breach.............................................................................. 40
9.5 Interest on overdue money......................................................................... 41
9.6 Other Remedies.................................................................................... 41
10. CONSEQUENCES OF TERMINATION OR EXPIRY............................................................. 41
10.1 Right to acquire Track Infrastructure............................................................ 41
10.2 Useable Track Infrastructure..................................................................... 41
10.3 Unacquired Track Infrastructure.................................................................. 41
10.4 Removal of Hazards............................................................................... 42
10.5 Process (Acquisition of Track Infrastructure).................................................... 42
10.6 Disputed Valuation............................................................................... 43
10.7 Surrender of the Lease and Consequential Matters................................................. 43
11. HAZARD REMOVAL.................................................................................... 44
11.1 Application...................................................................................... 44
11.2 Meanings......................................................................................... 44
11.3 Exclusion of Obligation.......................................................................... 45
11.4 Attachment of Obligation......................................................................... 45
11.5 Discharge of Obligation.......................................................................... 45
12. FORCE MAJEURE..................................................................................... 46
12.1 Definition....................................................................................... 46
12.2 Specific Circumstances........................................................................... 46
12.3 Expenditure...................................................................................... 47
12.4 Effect........................................................................................... 47
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NOTE:- Every annexed page shall be signed by the parties to the dealing, or
where the party is a corporate body, be signed by the persons who have
attested the affixing of the seal of that body to the dealing.
12.5 Obligation to Work Around........................................................................ 47
12.6 Notification..................................................................................... 47
12.7 Abatement of Rent................................................................................ 47
13. GENERAL........................................................................................... 47
13.1 Notices.......................................................................................... 47
13.2 Compliance with Law.............................................................................. 48
13.3 Governing law.................................................................................... 48
13.4 Waiver........................................................................................... 48
13.5 Severability..................................................................................... 49
13.6 Counterparts..................................................................................... 49
13.7 Further assurance................................................................................ 49
13.8 Entire agreement................................................................................. 49
13.9 Costs and expenses............................................................................... 49
13.10 Exclusion of statutory provisions............................................................... 50
13.11 Mitigation...................................................................................... 50
13.12 Payment after notice............................................................................ 50
13.13 Disputes Provision............................................................................... 50
13.14 Confirmation of Compliance with Lease............................................................ 52
13.15 Lessee's warranty................................................................................ 53
13.16 No merger........................................................................................ 53
13.17 Exclusion of moratorium.......................................................................... 53
14. CONTAMINATION...................................................................................... 53
14.1 Definitions....................................................................................... 53
14.2 Existing Contamination and Commonwealth Remediation............................................... 54
14.3 Compliance with Environmental Notices............................................................. 54
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NOTE:- Every annexed page shall be signed by the parties to the dealing, or
where the party is a corporate body, be signed by the persons who have
attested the affixing of the seal of that body to the dealing.
14.4 Indemnity......................................................................................... 54
15. EXCLUSION OF COVENANTS IMPLIED BY STATUTE.......................................................... 55
15.1 Real Property Act................................................................................. 55
15.2 Landlord and Tenant Act........................................................................... 55
16. FURTHER ASSURANCES................................................................................. 55
17. ACKNOWLEDGEMENT THAT THIS LEASE IS NOT A "MISCELLANEOUS LEASE"..................................... 55
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NOTE:- Every annexed page shall be signed by the parties to the dealing, or
where the party is a corporate body, be signed by the persons who have
attested the affixing of the seal of that body to the dealing.
THIS MEMORANDUM OF LEASE
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BETWEEN:
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MINISTER FOR TRANSPORT AND URBAN PLANNING A BODY CORPORATE UNDER THE
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ADMINISTRATIVE ARRANGEMENTS ACT 1994 (the "Lessor")
------------------------------------
AND
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AUSTRALIA SOUTHERN RAILROAD PTY LTD [A.C.N 079 444 296] (The "Lessee")
-----------------------------------
THE PARTIES COVENANT AS FOLLOWS
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The Lessor hereby leases to the Lessee the land described in Schedule 1 and
further described in the plans exhibited to this Memorandum of Lease ("xxx
Xxxx") for the term of 50 years commencing on the Commencing Date specified in
this Lease (subject to the right of renewal granted in this Lease) and at the
rent and on the other provisions contained in this Lease subject to and
reserving to the Lessor and other persons as described in this Lease, the
rights, powers or entitlements specified in Schedule 1.
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Lease unless the contrary intention appears:
1.1.1 AGREEMENT TO LEASE means the Deed of Agreement to Lease and
Charge made between the Lessor, SA Rail Pty Ltd, ACN 077 946
340 and the Lessee dated the 7th day of November 1997.
1.1.2 AUTHORITY includes any government, semi or local government,
statutory or other authority or body, but does not include the
Lessor in its capacity either as lessor, pursuant to this
Lease or as the holder of an estate in freehold in any portion
of the Land.
1.1.3 BALANCE OF THE LAND means all the Land other than the Rail
Corridor.
1.1.4 BULK HANDLING FACILITIES means bins, silos, elevators,
conveyor belts and other accommodation, plant and equipment
for the reception, storage, handling and delivery of grain in
bulk.
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NOTE:- Every annexed page shall be signed by the parties to the dealing, or
where the party is a corporate body, be signed by the persons who have
attested the affixing of the seal of that body to the dealing.
1.1.5 BUSINESS DAY means a day on which banks are open for general
banking business in Adelaide excluding Saturdays, Sundays and
Public Holidays.
1.1.6 COMMENCING DATE means 7 November 1997.
1.1.7 COMMERCIAL RENT means rent calculated in accordance with
clause 3.5.
1.1.8 COMMISSION means the Australian Heritage Commission.
1.1.9 CONTAMINATION means in the respect of Land:
1.1.9.1 affectation or degradation by the presence of any
chemical substance (including without limitation any
dangerous good, hazardous material, asbestos or any
waste), where having regard to the use of the Land or
of any other land in its vicinity, the chemical
substance creates or may create a risk of harm to the
environment.
1.1.10 DISPUTES PROVISION means clause 13.13.
1.1.11 DORMANT CONDITION in respect of a line or part of a line means
that;
1.1.11.1 the line is closed to rail traffic;
1.1.12.1 road crossings are not operated; and
1.1.13.1 Track Infrastructure is maintained only to a level in
which it is reasonably practicable to reopen the line
for rail traffic of a similar volume and nature as was
operated on the line before it was closed to rail
traffic, within a period of two weeks.
1.1.12 EVENT OF DEFAULT means an event referred to in clause 9.1.
1.1.13 EXISTING LEASE means a lease over any part of the Land granted
by a predecessor in title to the Lessor which is current as at
the Commencement Date and which is binding on the Lessor by
virtue of Section 6 of the Non-metropolitan Railways (Transfer)
Xxx 0000.
1.1.14 EXCLUDED LAND means the Land defined in item 2 of Schedule 1.
1.1.15 HAZARD REMOVAL WORK has the meaning attributed in clause 11.
1.1.16 LEASE means this Lease and any equitable Lease or common law
tenancy evidenced by this Lease.
1.1.17 LESSEE means Australia Southern Railroad Pty Limited (ACN079
444 296)
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NOTE:- Every annexed page shall be signed by the parties to the dealing, or
where the party is a corporate body, be signed by the persons who have
attested the affixing of the seal of that body to the dealing.
1.1.18 LESSEE'S AGENTS means every agent, employee, licensee,
contractor and invitee of the Lessee.
1.1.19 LESSEE'S PROPERTY means all the Lessee's fixtures, fittings,
equipment, furnishings and other property of the Lessee on the
Land (including the Track Infrastructure);
1.1.20 LESSOR means the Minister for Transport a body corporate
pursuant to the Administrative Arrangements Act, 1994 (SA).
1.1.21 LINEAR CONTINUITY means, in respect of a line,
1.1.22.1 the state of being either physically open to rail
traffic along its whole length, or maintained in a
Dormant Condition, and
1.1.21.1 the state of being maintained in the possession of the
Lessee.
1.1.22 LINE means a part of the Rail Corridor that lies between two
specified locations and includes the associated yards, sidings,
terminals, stations and other Track Infrastructure needed to
allow and facilitate the operation of rolling stock between
those two locations;
1.1.23 MARKET VALUE with respect to any Track Infrastructure means the
fair market value of the Track Infrastructure assessed on the
basis of continued railways usage, without deduction of
replacement value of tunnels, bridges or formations reverting to
the Lessor.
1.1.24 MINIMUM SERVICE REQUIREMENTS means the services specified in
Schedule 4.
1.1.25 NATIONAL ESTATE LAND means:
1.1.25.1 that part of the Land which is at the Commencing Date
entered in the Register of the National Estate
maintained by the Commission including the land
described in Schedule 6 to this Lease; and
1.1.25.2 any part of the Land which at any time during the
Term, is entered in the Register of the National
Estate maintained by the Commissioner.
1.1.26 NON OPERATIONAL LINES means the lines:
1.1.26.1 from Wolseley to Mount Gambier,
1.1.26.2 from Millicent to Mount Gambier,
1.1.26.3 from Victorian border to Mount Gambier,
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NOTE:- Every annexed page shall be signed by the parties to the dealing, or
where the party is a corporate body, be signed by the persons who have
attested the affixing of the seal of that body to the dealing.
1.1.26.4 from Wallaroo to Snowtown.
1.1.27 OUTGOINGS means all amounts payable or incurred by the Lessor or
the Lessee during the Term in respect of the Land or the
control, management or maintenance of the Land including, but
not limited to, the following:
1.1.27.1 (RATES AND LEVIES) all rates, rents, levies and other
charges payable to any Authority;
1.1.27.2 (TAXES) all imposts, duties, fees, deductions,
compulsory loans or withholdings and taxes (including
but subject to the operation of Section 9 of the Non-
metropolitan Railway (Transfer) Xxx 0000 and Section
16 of the Railways (Operation and Access) Xxx 0000,
land tax in respect of the Balance of the Land but
excluding income tax and capital gains tax) payable to
any Authority;
1.1.27.3 (INSURANCE) any insurance premium and other expense
relating to any insurance policy of any kind required
to be obtained under this Lease, whether in respect of
the Land, its use, the Lessee's Property or the
Lessee's business including, but not limited to,
insurance in respect of, public liability and
consequential loss; and
1.1.27.4 (SERVICES) the cost of all services supplied to the
Land including, but not limited to, lighting, power,
heating, water, air-conditioning, security and
emergency services, and all associated maintenance,
repair, replacement and servicing costs, and
1.1.27.5 compensation for which the Lessee is responsible under
clause 5.14.2.3.2.;
but excluding:
1.27.6 amounts paid or incurred by the Lessor which the
Lessor is under no legal obligation to pay, or which
arise out of a legal obligation voluntarily assumed by
the Lessor,
1.27.7 any amount paid or incurred by the Lessor pursuant to
an obligation assumed by the Lessor in respect of
which the Lessor is entitled to exemption,
1.1.27.8 and compensation for which the Lessor is responsible
under clause 5.14.2.3.1.
1.1.28 RAIL CORRIDOR means that part of the Land described in
Schedule 3.
1.1.29 RAILWAY OPERATIONS means services provided by or in association
with:
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NOTE:- Every annexed page shall be signed by the parties to the dealing, or
where the party is a corporate body, be signed by the persons who have
attested the affixing of the seal of that body to the dealing.
1.1.29.1 the provision, maintenance, movement, shunting,
storage, fuelling, unfuelling, loading and unloading
of Rolling Stock to transport freight by rail; and
1.1.29.2 the provision, maintenance, storage, building,
rebuilding, servicing, replacing and repairing of
Track Infrastructure and Rolling Stock; and
1.1.29.3 the conduct of the business of handling, storing and
transporting freight and passengers, or either, by
rail (and incidentally by road); and
1.1.29.4 the maintenance and operation of signalling and
communication equipment; and
1.1.29.5 includes a Railway Integrated Business.
1.1.30 RAILWAY INTEGRATED BUSINESS means a business:
1.1.30.1 which is conducted in an integrated fashion with the
rail network;
1.1.30.2 which is conducted in premises where the Lessee has
the capacity to deliver and recover freight by rail;
1.1.30.3 which is conducted in premises where there is a rail
spur specific to the business; and
1.1.30.4 in respect of which the Lessee in practice conducts
delivery of supplies and recovery of production by
rail.
1.1.31 RELATED PARTY of the Lessee means either of the following:
1.1.31.1 a "related party" of the Lessee for the purposes of
Section 243F of the Corporations Law;
1.1.31.2 a "related body corporate" of the Lessee for the
purposes of Section 50 of the Corporations Law.
1.1.32 RENT PAYMENT DATES means the day after the fifth anniversary of
the Commencing Date, and thereafter the 1st day of March, June,
September and December in each year for the remainder of the
Term.
1.1.33 ROLLING STOCK means a vehicle (whether or not self-propelled)
that operates on or uses a railway line.
1.1.34 SACBH means South Australian Co-Operative Bulk Handling Limited,
a Corporations Law entity limited by guarantee without a share
capital (A.C.N. 007 556 256) and includes any person who
operates Bulk Handling Facilities wholly or partially in place
of SACBH.
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NOTE:- Every annexed page shall be signed by the parties to the dealing, or
where the party is a corporate body, be signed by the persons who have
attested the affixing of the seal of that body to the dealing.
1.1.35 SAICORP means South Australian Government Captive Insurance
Corporation a body corporate established pursuant to the Public
Corporations Act, 1993.
1.1.36 SIGNIFICANT PUBLIC HAZARD has the meaning attributed in
clause 11.
1.1.37 STATE AGENCY means the Crown in right of the State of South
Australia an agency or instrumentality of the Crown in right of
the State of South Australia a "Minister" within the meaning of
the Administrative Arrangements Act 1994 or a public corporation
within the meaning of the Public Corporations Xxx 0000.
1.1.38 SURRENDER NOTICE means a notice given by the Lessor to the
Lessee or by the Lessee to the Lessor in terms of clause 4.3.
1.1.39 TRACK INFRASTRUCTURE means the following improvements to the
Land, whether or not constituting fixtures at law:
1.1.39.1 track work including without limitation, rail lines,
crossing loops, level crossings, sleepers, ballast,
fastenings, points, poles, pylons, pipes, drains,
structures, supports, overhead lines, buffer stops,
posts and signs;
1.1.39.2 earthworks and formations including cuttings,
embankments, tunnels (including any tunnel lighting
and ventilation), ditches and retaining walls;
1.1.39.3 bridges, culverts, overpasses, under bridge, viaducts,
jetties and wharves;
1.1.39.4 signalling and train control and communications
systems (including signal boxes, huts and telegraph
and transmission lines and instruments) which are
necessary for the safe and proper movement of trains;
1.1.39.5 access roads, approaches, footpaths, gates, cattle
stops, and fences; and
1.1.39.6 buildings and other structures including platforms,
railway stations, passenger terminals, freight sheds,
freight terminals, roundhouses, workshops and
associated buildings.
1.1.39.7 anything coming within the definition from time to
time of "fixed railway infrastructure" within the
meaning of the Railways (Operations and Access) Xxx
0000; and
1.1.39.8 anything placed or installed on the Land by or on
behalf of the Lessee or a person claiming through the
Lessee in substitution for
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NOTE:- Every annexed page shall be signed by the parties to the dealing, or
where the party is a corporate body, be signed by the persons who have
attested the affixing of the seal of that body to the dealing.
or in addition to anything fixed, installed or situated on the
Land as at the Commencing Date;
but does not include Bulk Handling Facilities paid for or operated by or
on behalf of SACBH. as at or prior to the Commencing Date;
1.1.40 Term means the term of this Lease commencing on the Commencing
Date and terminating on the Terminating Date.
1.1.41 Terminating Date means 7 November 2047.
1.2 INTERPRETATION
In this Lease, headings and underlining are for convenience only and do
not affect interpretation, and unless the context otherwise requires:
1.2.1 words importing the singular include the plural and vice versa;
1.2.2 a covenant or agreement on the part of two or more persons binds
them jointly and severally;
1.2.3 a reference to any thing (including any right or any period of
time) includes a part of that thing;
1.2.4 a reference to an individual or person includes a corporation,
partnership, joint venture, association, authority, trust, state
or government and vice versa;
1.2.5 a reference to any gender includes all genders;
1.2.6 a reference to a recital, clause, schedule, annexure or exhibit
is to a recital, clause, schedule, annexure or exhibit of or to
this Lease;
1.2.7 a recital, schedule, annexure, exhibit or a description of the
parties forms part of this Lease;
1.2.8 a reference to any agreement or document is to that agreement or
document (and, where applicable, any of its provisions) as
amended, novated, supplemented or replaced from time to time;
1.2.9 a reference to any Act or statutory instrument or particular
provision of an Act or such statutory instrument is taken to
include:
1.2.9.1 all regulations, orders or instruments issued under
the legislation or provision;
1.2.9.2 any modification, consolidation, amendment, re-
enactment, replacement or codification of such
legislation or provision; and
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NOTE:- Every annexed page shall be signed by the parties to the dealing, or
where the party is a corporate body, be signed by the persons who have
attested the affixing of the seal of that body to the dealing.
1.2.9.3 any substituted legislation or substituted provision.
1.2.9.4 a reference to any party to this Lease or any other
document or arrangement includes that party's
executors, administrators, substitutes, successors and
permitted assigns;
1.2.9.5 where an expression is defined, another part of speech
or grammatical form of that expression has a
corresponding meaning; and
1.2.9.6 a reference to a month is to a calendar month.
1.3 BUSINESS DAY
If the day on or by which any thing is to be done under this
Lease is not a Business Day, that thing must be done:
1.3.1 if it involves a payment other than a payment which is
due on demand, on the preceding Business Day; and
1.3.2 in all other cases, no later than the next Business Day.
2. LEASE, RESERVATIONS AND ANCILLARY RIGHTS
2.1 GRANT OF LEASE
The Lessor leases to the Lessee and the Lessee takes a lease of the
Land on the terms and conditions set out in this Lease.
2.2 TERM OF LEASE
This Lease begins on the Commencing Date and ends on the Terminating
Date.
2.3 HOLDING OVER
2.3.1 If the Lessee continues to occupy the Land with the Lessor's
consent after the Terminating Date, the Lessee is a quarterly
tenant.
2.3.2 Subject to this clause 2.3, the quarterly tenancy is on the same
terms as this Lease, but including any other changes necessary
to make the terms appropriate for a quarterly tenancy.
2.3.3 Either party may terminate the quarterly tenancy by giving three
months' written notice to the other which notice may expire at
any time.
2.4 RIGHT OF RENEWAL
2.4.1 If the Lessee, at any time after the expiry of 40 years and
before the expiry of 45 years after the Commencing Date:
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NOTE:- Every annexed page shall be signed by the parties to the dealing, or
where the party is a corporate body, be signed by the persons who have
attested the affixing of the seal of that body to the dealing.
2.4.1.1 gives the Lessor a notice of intention to renew under
this clause at any time;
2.4.1.2 provides the Lessor with an investment plan which in
the Lessor's reasonable opinion represents a reasonable
commitment to maintain and enhance Railway Operations
to the extent that is commercially realistic in the
prevailing circumstances, and includes, to the extent
practicable, the following:
2.4.1.2.1 A Business Plan for Railway Operations on
the Land, including:
(i) a statement of Corporate intent;
(ii) a description of the proposed rail
network;
(iii) a business plan including financial
projections with and without the
implementation of specific investment
proposals;
(iv) a capital works programme, being a
summary of the investment proposals
more fully described below;
(v) a statement of borrowing requirements;
(vi) a statement of investment strategy;
2.4.1.2.2 An Investment Plan for the Land, including:
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NOTE:- Every annexed page shall be signed by the parties to the dealing, or
where the party is a corporate body, be signed by the persons who have
attested the affixing of the seal of that body to the dealing.
(i) a description of proposed projects
dealing separately with maintenance
of existing assets, replacement of
existing assets and the creation of
new assets;
(ii) a cash flow statement of
expenditure and expected income in
respect of each project and in
total is to be included, showing
the payback period;
(iii) any program of asset disposal or
arrangements for the reuse of
assets for other purposes is to be
provided;
(iv) a statement showing the source of
funds whether by borrowings, equity
contribution or the like is to be
included;
(v) The information is to be provided
for each year and include to the
extent practicable, a description
of each proposed project, the
nature of the project, its
location, its commencement, project
period and expected realisation;
("the Renewal Investment Plan"); and
2.4.1.3 undertakes to carry out the Renewal Investment Plan;
then provided there is no existing breach of this Lease, the
Lessor must grant the Lessee an extension of the Lease of the
Land for a further term of 15 years at an annual rental
determined in accordance with clause 3 on the same terms and
conditions as this Lease excluding the right of renewal
conferred in this clause.
2.4.2 If the Lessor does not approve an investment plan submitted
under this clause, the Lessor must give its reasons and the
Lessee may submit a further plan or plans subject to this
clause.
2.4.3 Upon grant of the extension referred to in clause 2.4.1, the
Lessee must commence and continue implementation of the Renewal
Investment Plan unless it is prevented from doing so by some
exigency which makes its implementation commercially unfeasible.
2.4.4 If the Lessee does not commence or ceases to implement the
Renewal Investment Plan in accordance with the this clause the
Lessor may terminate this Lease on or after the Terminating
Date, subject to clause 10.
2.5 ANCILLARY RIGHTS
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NOTE:- Every annexed page shall be signed by the parties to the dealing, or
where the party is a corporate body, be signed by the persons who have
attested the affixing of the seal of that body to the dealing.
This Lease is granted together with [Ancillary Rights to be granted
commensurate with Vested Rights in accordance with Agreement to Lease;
subject to identification of Vested Rights].
2.6 RESERVATION
This Lease is subject to rights reserved to the Lessor including rights
reserved for the benefit of Land leased by the Lessor to SACBH adjoining
the Land ("SACBH Land") as follows [to be identified in accordance with
the Agreement to Lease].
2.7 ANCILLARY RIGHTS OVER SACBH LAND
Subject to the following subclause, this Lease is granted together with
rights reserved by the Lessor for the benefit of the Land over the SACBH
Land as follows: [to be identified in accordance with the Agreement to
Lease].
2.8 AGREEMENT BETWEEN SACBH AND LESSEE
The Lessee must enter into with SACBH, and the Lessor must require SACBH
to enter into with the Lessee, an agreement substantially in the form of
Schedule 5 ("the SACBH Agreement").
Until the SACBH Agreement is entered into by the Lessee, the Lessee is
not entitled to exercise the rights referred to in sub-clause 2.7.
The Lessor must ensure that under the SACBH Lease, SACBH is not entitled
to exercise the rights referred to in clause 2.6 until it has entered
into the SACBH Agreement.
2.9 VARIATION IF LESSOR IS NOT A STATE AGENCY
2.9.1 If the Lessor's interest in the Land is assigned or vested in
an entity that is not a State Agency, this lease must be read
subject to the following amendments operable from the date of
such assignment or vesting:
2.9.1.1 delete from the definition of Market Value the words
"assessed on the basis of continued railway usage";
2.9.1.2 clause 5.2(a) shall only operate if the party becoming
the Lessor under the Lease is also the holder of the
estate in fee simple of the land occupied by SACBH;
2.9.1.3 notwithstanding anything contained in the Lease when
the Lessor's consent is required for anything under
the Lease that consent:
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NOTE:- Every annexed page shall be signed by the parties to the dealing, or
where the party is a corporate body, be signed by the persons who have
attested the affixing of the seal of that body to the dealing.
2.9.1.3.1 may not be withheld or made subject to conditions
unreasonably; and
2.9.1.3.2 if withheld or made subject to conditions the
Lessor must give written notice of the reasons
for withholding approval or attaching the
conditions;
2.9.1.4 The Lessor must, if the Lessee requires, take such steps
as are required to register this Lease, at the cost of the
Lessee.
2.9.2 If the Lessor contemplates an assignment or vesting of land
occupied by SACBH separately from the Land, the Lessor and
Lessee must create easements and rights equivalent to the
reservations and ancillary rights in respect of the SACBH
Land so as to enable the continued usage of the Land and the
SACBH Land under this Lease and the SACBH Lease.
3. RENT, AND OUTGOINGS
3.1 RAIL CORRIDOR RENT
Rent for the Rail Corridor is:
3.1.1 $1.00 per annum; and
3.1.2 after the expiry of 5 years after the Commencing Date, in
respect of any portion of the Rail Corridor which is
sublet, Commercial Rent.
3.2 BALANCE OF THE LAND RENT
Rent for the Balance of the Land is:
3.2.1 for the first five years of the Term $1.00 per annum; and
3.3.2 for the balance of the Term, Commercial Rent.
3.3 PAYMENT OF RENT
3.3.1 The Lessee must pay the Rent for the Rail Corridor to the
Lessor annually in advance on the Commencing Date and on
each subsequent anniversary of the Commencing Date (if
demanded).
3.3.2 The Lessee must pay the Rent for the Balance of the Land to
the Lessor
3.3.2.1 annually in advance on the Commencing Date and on
each subsequent anniversary of the Commencing Date
for the first five (5) years of the Term (if
demanded), and
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NOTE:- Every annexed page shall be signed by the parties to the dealing, or
where the party is a corporate body, be signed by the persons who have
attested the affixing of the seal of that body to the dealing.
3.3.2.2 thereafter in advance on each Rent Payment Date by
instalments, each instalment to be equal to one
quarter of the annual rent due for the relevant 12
month period.
3.3.3. The rent payable for the Balance of the Land after the first
five years of the Term shall be payable without demand, free of
exchange and without set-off or counterclaim.
3.4 PAYMENT OF OUTGOINGS
3.4.1 The Lessee must;
3.4.1.1 promptly pay the Outgoings for the Land as and when
those Outgoings fall due for payment, or
3.4.1.2 The Lessor may pay any of the Outgoings which have not
been paid by the Lessee when due . Any such sum or sums
paid by the Lessor may be recovered from the Lessee
together with interest pursuant to clause 9.6
(calculated from the date when any such Outgoings was
due) as if the same were rent in arrears.
3.4.1.3 if any Outgoings are in fact paid by the Lessor under
this clause, promptly reimburse the Lessor for the
amount so paid by the Lessor upon receipt of evidence
that the amount has been so paid.
3.5 COMMERCIAL RENT
3.5.1 Commercial Rent in respect of any portion of the Land is an
annual rent comprising the sum of eight percent (8%) of the Site
Value of the portion of the Land.
3.5.2 In this clause:
Site Value is, as at any anniversary of the Commencing Date, the
then current site value of the relevant portion of the Land
determined by the Valuer General in accordance with the
Valuation of Land Xxx 0000.
4.1 LAND AREA SUBJECT TO VARIATION
4.1 VARIATIONS
4.1.1 The area of the Land may be increased or reduced from
time to time in accordance with the provisions of this
Clause 4.
4.1.2 The Lessee agrees to surrender and the Lessor agrees to
accept a surrender of this Lease in respect of any Land
removed from the scope of this Lease in
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NOTE:- Every annexed page shall be signed by the parties to the dealing, or
where the party is a corporate body, be signed by the persons who have
attested the affixing of the seal of that body to the dealing.
accordance with clause 4.2 or 4.3 when that Land is
identified and recorded in accordance with this
Clause 4.
4.1.3 If land leased to or used by SACBH is surrendered by
SACBH and
4.1.3.1 the land is owned by the Lessor;
4.1.3.2 the land is reasonably required to perform
Railway operations carried on or intended to
be carried on by the Lessee; and
4.1.3.3 the Lessor does not require the land for any
other purpose,
the Lessee may require the Lessor to enter into a lease of that
additional land on the terms and conditions contained in this
Lease for the balance of the Term.
4.2 SURRENDER OF LAND NOT USED FOR RAILWAY OPERATIONS
4.2.1 If immediately prior to the issue of a Surrender Notice Railway
Operations have not been conducted on a portion of the Land, for
a continuous period of eighteen months during the Term and have
not been recommenced (save for a grace period in respect of the
Non Operational Lines of two years from the Commencing Date)
then
4.2.2 the Lessee may surrender the Lease in respect of that portion of
the Land and the Lessor must accept such surrender; and
4.2.3 the Lessor may require the Lessee to surrender the Lease in
respect of that portion of the Land.
4.2.4 the parties acknowledge that the rights conferred by the
preceding sub clause are not in the nature of a remedy for
breach, but a means of adjusting the extent of the Land subject
to this Lease, in accordance with the following principles;
4.2.4.1 if Land is not genuinely required for use for Railway
Operations, it is properly regarded as non-operational
or surplus land which the State may recover for its
own purposes;
4.2.4.2 if Land is used or is genuinely intended for use (as
contemplated in clause 4.2.5.4) for Railway
Operations, it should be retained for use by the
Lessee;
4.2.4.3 if the Lessee maintains a line or part of a line in a
Dormant Condition, that constitutes use for the
purposes of this clause, but does not preclude the
Lessee from surrendering the relevant part of the
Land;
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NOTE:- Every annexed page shall be signed by the parties to the dealing, or
where the party is a corporate body, be signed by the persons who have
attested the affixing of the seal of that body to the dealing.
4.2.4.4 if the Lessee has a genuine intention to use or to
explore the feasibility of use of a part of the Land
for Railway Operations, and notifies the Lessor
accordingly, then for six months following such notice
(unless the Lessee notifies to the contrary) the Lessee
is taken to be using the Land for Railway Operations,
and on the expiry of the six month period:
4.2.4.4.1 if the Lessee provides to the Lessor a bona
fide business plan for use of the relevant
part of the Land for Railway Operations, and
for so long as the Lessee implements or
develops the plan with due expedition, the
Lessee is taken to be using the Land for
Railway Operations; and
4.2.4.4.2 if the Lessee does not provide, develop or
implement such a business plan, the Lessee is
taken not to be using the relevant part of
the Land.
4.2.5 If Minimum Service Requirements are not met with respect to a
portion of the Land for a continuous period of 6 months during
the first five years of the Term, the Lessor may require the
Lessee to surrender the Lease in respect of that portion of the
Land.
4.2.6 If the Lessor requires the Lessee to surrender, or the Lessee
elects to surrender a portion of the Land under this clause, the
Lessor may at its election acquire all or any part of the Track
Infrastructure located on that portion of the Land as at the
Surrender Notice Date:
4.2.6.1 if before the expiry of the first five years after the
Commencing Date, without being liable to make any
payment, and
4.2.6.2 if after the expiry of five years after the Commencing
Date, upon payment to the Lessee of the Market Value
of the Track Infrastructure.
4.2.7 The Lessor may not exercise its right to acquire less than all
the Track Infrastructure located on the portion of the Land under
the preceding subclause unless the Track Infrastructure selected
comprises, (so far as is practicable in light of the size and
location of the land) an integrated package of infrastructure
capable of use for Railway Operations.
4.2.8 With respect to any Track Infrastructure which the Lessor elects
not to acquire ("the Unacquired Track Infrastructure):
4.2.8.1 the Lessee may remove all or any part of the Unacquired
Track Infrastructure either before the Lessee is
required to deliver a partial Surrender of the Lease
with respect to the part of the Land where the
Unacquired Track Infrastructure is located, or within a
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NOTE:- Every annexed page shall be signed by the parties to the dealing, or
where the party is a corporate body, be signed by the persons who have
attested the affixing of the seal of that body to the dealing.
reasonable time not exceeding six months after the
delivery of partial Surrender of the Lease notified by
the Lessee by written notice to the Lessor;
4.2.8.2 if it removes all or any part of the Unacquired Track
Infrastructure, the Lessee must ensure that the
portion of the Land from which it is removed is not by
reason of such removal left unsafe at the Lessee's
cost and to the Lessor's reasonable satisfaction; and
4.2.8.3 if the Lessee does not remove the Unacquired Track
Infrastructure within the time required in this
clause, then title to that part of the Track
Infrastructure passes to the Lessor.
4.2.9 If the Lessor requires the Lessee to surrender, or the Lessee
elects to surrender a portion of the Land under this clause, the
Lessee is only obliged to restore or repair any Track
Infrastructure;
4.2.9.1 to the extent necessary to comply with the Lessee's
maintenance obligations under this Lease , and
4.2.9.2 to the extent necessary to repair any damage caused by
negligence or wilful act of the Lessee or any person
for whom the Lessee is legally responsible.
4.2.10 The Lessee must comply with the Hazard Removal Obligation in
respect of the part of the Land in respect of which the Lessee
is required to deliver a partial Surrender of the Lease.
4.3 PROCESS (SURRENDER AND ACQUISITION OF TRACK INFRASTRUCTURE)
4.3.1 In order to exercise the Lessor's right to require the Lessee to
surrender a portion of the Land under clause 4.3, the Lessor
must give the Lessee a Surrender Warning Notice (which may be
given before the right of the Lessor to require the surrender
arises, in respect of circumstances which the Lessor believes
will give rise to such a right, if continued) and, at the time
the right arises or 60 days after the service of the Surrender
Warning Notice (whichever is later), a Surrender Notice.
4.3.2 In order to exercise the Lessee's right to surrender a portion
of the Land under clause 4., the Lessee must give the Lessor a
Surrender Notice.
4.3.3 A Surrender Warning Notice must:
4.3.3.1 state that it is a Surrender Warning Notice;
4.3.3.2 be dated;
4.3.3.3 adequately identify the portion of the Land to which
it relates; and
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NOTE:- Every annexed page shall be signed by the parties to the dealing, or
where the party is a corporate body, be signed by the persons who have
attested the affixing of the seal of that body to the dealing.
4.3.3.4 set out the facts on the basis of which the Lessor believes
the right to require a Surrender has arisen or will arise.
4.3.4 A Surrender Notice must:
4.3.4.1 state that it is a notice under this clause;
4.3.4.2 be dated,
4.3.4.3 adequately identify the portion of the Land in respect of
which a partial surrender is required or intended,
4.3.4.4 set out the facts which give rise to the application of this
clause.
4.3.5 If the party receiving a Surrender Warning Notice or a Surrender Notice
(the "receiving party") wishes to dispute that the other party (the
"notifying party") is entitled to give the Notice, the receiving party
must so notify the notifying party not later than one month after the
date of the Surrender Notice, and must state the matters of fact and any
other matter specified in the Notice with which the receiving party
takes issue. The receiving party must also provide the notifying party
with such evidence as practicable in support of the receiving party's
position within 45 days of the Notice.
4.3.6 No later than 90 days after a Surrender Notice which is not disputed
under the preceding subclause is given by either party, or not later
than 90 days after any dispute as to the Surrender Notice is resolved
(if resolved in favour of the validity of the Surrender Notice) the
Lessee must give the Lessor written notice ("Notice of Value and
Condition ") in respect of the relevant portion of the Land:
4.3.6.1 referring to the relevant Surrender Notice and the portion of
the Land to which it relates;
4.3.6.2 if the Lessee would be entitled to require payment for the
Track Infrastructure, the Lessee's estimate of the Market Value
of the Track Infrastructure, itemised insofar as practicable
with respect to the various categories of the Track
Infrastructure; and
4.3.6.3 a description of any Significant Public Hazard on or in the
relevant portion of the Land.
4.3.7 Within 90 days of receiving a notice of Terms of Surrender, the Lessor
must advise the Lessee by notice in writing:
4.3.7.1 whether the Lessor elects to acquire all or any of the relevant
Track Infrastructure and identifying that category or part of
the Track Infrastructure to be acquired ("the Nominated Track
Infrastructure");
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NOTE:- Every annexed page shall be signed by the parties to the dealing, or
where the party is a corporate body, be signed by the persons who have
attested the affixing of the seal of that body to the dealing.
4.3.7.2 (if the Lessee is entitled to payment for the Nominated Track
Infrastructure), whether the Lessor accepts or disputes the
Lessee's assessment of its Market Value and if disputed, the
Lessor's assessment of its Market Value.
4.4 DISPUTED VALUATION
4.4.1 If the parties do not, within one hundred and twenty days of the
Notice of Value and Condition, agree on either the Market Value
of Nominated Track Infrastructure for which the Lessor is liable
to pay, then a party may refer the matter to an independent
Expert for determination.
4.4.2 In the case of a dispute as to the Market Value of Nominated
Track Infrastructure, the independent expert must certify the
Market Value of the relevant Track Infrastructure and within
thirty days of receipt of this determination the Lessor must
either confirm or revoke its election to acquire the Nominated
Track Infrastructure or part of it.
4.4.3 If the Lessor revokes its election to acquire any Track
Infrastructure after an Expert Determination of its Market Value
which exceeds the Lessor's assessment of its Market Value, then
the Lessor must pay the whole of the costs of the Expert
Determination.
4.5 PROCESS (HAZARD REMOVAL OBLIGATIONS)
4.5.1 Not later than 60 days after;
4.5.1.1 receiving a Notice of Value and Condition in respect
of a part of the Land on which there is no Track
Infrastructure; or
4.5.1.2 electing not to acquire any Nominated Track
Infrastructure, or
4.5.1.3 agreeing the Market Value of Nominated Track
Infrastructure; or
4.5.1.4 receiving an Expert Determination of Nominated Track
Infrastructure;
the Lessor must give the Lessee a Hazard Removal Notice.
4.5.2 A Hazard Removal Notice must identify any Significant Public
Hazard described in the Notice of Value and Condition or
otherwise known to the Lessor to which the Lessor attaches a
Hazard Removal Obligation in accordance with clause 11.
4.5.3 If the Lessee wishes to dispute any matter in the Hazard Removal
Notice, the Lessee must notify the Lessor of the matter in
dispute and, to the extent practicable, any matters of fact
relevant to the dispute not later than 30 days after receipt of
the Hazard Removal Notice.
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NOTE:- Every annexed page shall be signed by the parties to the dealing, or
where the party is a corporate body, be signed by the persons who have
attested the affixing of the seal of that body to the dealing.
4.5.4 If the parties do not within 90 days of the Hazard Removal
Notice agree the Hazard Removal Obligation, a party may refer
the matter for Expert Determination.
4.5.5 The Expert must determine what the Hazard Removal Obligation
under clause 11 is.
4.5.6 The Lessee must comply with its Hazard
Removal Obligation with respect to a part of the Land not later
than six months after;
4.5.6.1 the Hazard Removal Notice in respect of that part of the
Land; or
4.5.6.2 if the Hazard Removal Notice is disputed in accordance
with this clause, the date of the Expert Determination
as to the Hazard Removal Obligation.
4.6 SURRENDER OF THE LEASE AND CONSEQUENTIAL MATTERS
4.6.1 Where a valid Surrender Notice has been given by one party to
the other under clause 4.4
4.6.2 the Lessee must:
4.6.2.1 execute and deliver a partial surrender of the lease in
respect of the relevant portion of the Land, not later
than six months after the date of the Surrender Notice
or six months after the determination by an independent
expert of any dispute as to the Hazard Removal Work,
whichever is the later ("the Surrender Date"), and
4.6.2.2 relinquish possession of the portion of the Land to the
Lessor upon demand by the Lessor at any time after the
Surrender Date.
4.6.3 The costs of the preparation execution and registration of the
surrender of lease under this clause must be borne:
4.6.3.1 if the surrender is given at the election of the
Lessee, or pursuant to a Surrender Notice by the Lessor
made under clause 4.4(a)(ii) or 4.4(a)(iii), by the
Lessee;
4.6.3.2 in any other case, by the Lessor.
4.6.4 The Lessor must acquire Nominated Track Infrastructure with
respect to which the election to acquire has not been revoked
under clause 4.6.2. Title in Nominated Track Infrastructure
passes to the Lessor on payment of its Market Value, or if the
Lessor is not obliged to pay for it, on nomination by the
Lessor.
4.7 ADJUSTMENTS TO RAIL CORRIDORS
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NOTE:- Every annexed page shall be signed by the parties to the dealing, or
where the party is a corporate body, be signed by the persons who have
attested the affixing of the seal of that body to the dealing.
If the Lessee wishes to realign or make changes to the boundaries of the
Land then the parties will co-operate to the intent that:
4.7.1 any land to be added to the Land must be acquired at the cost of
the Lessee in the name of the Lessor and be made subject to the
provisions of this Lease;
4.7.2 with the approval of the Lessor any part of the Land which would
be made surplus by the proposed boundary changes may be dealt
with by exchanging it for additional land.
4.8 USE OF TRACK INFRASTRUCTURE
If within twelve months after a surrender under this clause, the Lessor:
4.8.1 commences to make use of the Track Infrastructure or a part of
the Track Infrastructure which the Lessor elected not to acquire
pursuant to this clause ("Unacquired Track Infrastructure") for
Railway Operations; or
4.8.2 makes the Unacquired Track Infrastructure available to another
person (a "Railway Licensee") for use in Railway Operations; or
4.8.3 commences a process of calling for bids or tenders or other
process designed to lead to a contract under which it is
proposed that a Railway Licensee will acquire or have the use of
the Unacquired Track Infrastructure for use in Railway
Operations:
then the Lessor will be liable to pay to the Lessee the Market Value of
so much of the Unacquired Track Infrastructure as the Lessor or the
Railway Licensee uses or acquires.
5. LESSOR'S RIGHTS AND OBLIGATIONS
5.1 QUIET ENJOYMENT
Subject to the Lessor's rights under this Lease, the Lessee may
peaceably possess and enjoy the Land for the Term without interruption
by the Lessor or any person lawfully claiming from or under the Lessor
except as expressly provided in this Lease.
5.2 RESERVATIONS
Notwithstanding anything contained in this Lease the Lessor RESERVES
to itself and excludes from the grant contained in this Lease the
following interests:
5.2.1.1 the rights of SACBH, subject to the reasonable
direction and control of the Lessee, (to the extent
that SACBH occupies or is a Lessee from the Lessor of
land adjacent to the Rail Corridors) to
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NOTE:- Every annexed page shall be signed by the parties to the dealing, or
where the party is a corporate body, be signed by the persons who have
attested the affixing of the seal of that body to the dealing.
take access to and encroach upon Rail Corridors for
the purpose of permitting access across tracks for grain
handling, shunting wagons on sidings, crossing rail
lines, obtaining access to encroachments and
facilitating the outloading of grain from silos and
otherwise facilitating the ordinary undertaking by SACBH
of its business activities on land adjacent to Rail
Corridors; and
5.2.1.2 the areas of land and interests described in Item 2 of
Schedule 1.
5.3 PERMIT USE OF EXISTING RIGHTS
5.3.1 During the Term the Lessor must permit the Lessee to continue to
use all existing drains, waterways, easements and services
pertaining to any of the Land which are under the control of the
Lessor and which adjoin or neighbour the Land and where any of
such land is sold, subdivided or leased, ensure that the Lessee
continues to have those rights or provide alternative facilities
for the Lessee.
5.3.2 If any of the Track Infrastructure is situated on Land which is
both excised from the description of the Land prior to the grant
of this Lease and is adjacent to the Land, the Lessor will
ensure that rights of the Lessee to access and use the Track
Infrastructure for the purpose of Railway Operations are
preserved for the benefit of the Lessee.
5.4 LESSOR'S RIGHT TO ENTER LAND
5.4.1 Subject to paragraph 5.4.2, the Lessor may enter the Land
together with all necessary workmen and equipment at all
reasonable times for the following purposes, if it gives the
Lessee reasonable prior notice:
5.4.1.1 to determine the condition of the Land or whether the
Lessee is complying with this Lease;
5.4.1.2 to exercise its rights under clause 5.6;
5.4.1.3 to carry out any work to the Land made necessary by any
failure by the Lessee to satisfy the terms and
conditions of this Lease, or to carry out work on any
adjacent property of the Lessor; and
5.4.1.4 to enable it to comply with any law or any notice from
any Authority affecting the Land.
5.4.2 When exercising its rights under paragraph 5.4.1:
5.4.2.1 the Lessor must take reasonable steps to minimise any
disruption to the Lessee; and
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NOTE:- Every annexed page shall be signed by the parties to the dealing, or
where the party is a corporate body, be signed by the persons who have
attested the affixing of the seal of that body to the dealing.
5.4.2.2 is not required to give reasonable prior notice or
enter at a reasonable time in the case of an emergency,
but will give notice to the Lessee promptly thereafter.
5.5 DEDICATION OR EASEMENT
The Lessor may dedicate any part of the Land or grant an easement in
respect of any part of the Land, but only if such dedication or grant
does not;
5.5.1.1 materially affect the Lessee's rights under this Lease;
or
5.5.1.2 materially impair the Lessee's ability to carry on its
business on the Land including, without limitation, the
continued conduct of Railway Operations.
5.6 LESSOR MAY PERFORM LESSEE'S OBLIGATIONS
The Lessor may, at the Lessee's cost, do anything which the Lessee is
obliged to do under this Lease but has failed to do. The Lessor agrees
that it will not exercise its rights under this clause unless it has
given notice to the Lessee specifying the matter which has not been done
and giving the Lessee a reasonable period to take corrective action
(such period to be not less than 30 days).
5.7 LESSOR'S CONSENT
If the Lessor's consent is required for anything under this Lease, that
consent:
5.7.1 must be in writing; and
5.7.2 may be given, either conditionally or unconditionally, or
withheld, in the Lessor's absolute discretion,
unless this Lease states otherwise.
5.8 PROPERTY RECORDS
For the purposes of clarification it is recorded that ownership of all
property information, plans and records relating to the Land at the
Commencing Date and made available to the Lessee remains at all times
with the Lessor. The Lessor must permit the Lessee, at the Lessee's
cost, to have access to such information plans and records in business
hours and on reasonable notice, and must permit the Lessee to take
copies of such information at the Lessee's expense.
5.9 NO COMPENSATION FOR BUILDINGS AND IMPROVEMENTS
5.9.1 Subject to Clause 4 and clause 10, upon the expiration or
earlier determination of the Term in respect of the Land or any
part all buildings and other improvements remaining on such Land
are deemed to have
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NOTE:- Every annexed page shall be signed by the parties to the dealing, or
where the party is a corporate body, be signed by the persons who have
attested the affixing of the seal of that body to the dealing.
become and to be the sole and exclusive property of the Lessor
without the Lessor being required to pay any compensation
whatsoever to the Lessee.
5.9.2 Notwithstanding any thing else in this Lease, title to any
tunnel, bridge or formation on any part of the Land will vest in
the Lessor without any obligation to make payment to the Lessee
on surrender of that part of the Land or termination or expiry
of this Lease.
5.10 TITLE TO LAND
5.10.1 The parties believe that the Lessor has the necessary rights of
ownership, occupation or usage over the Land to enable it to
grant this Lease, but the Lessor gives no warranties as to title
and will have no liability for any defect in title or right of
occupation or usage that may exist, now or in the future.
5.10.2 To the extent that the Lessee requires any action to be taken in
the name of the Lessor in order to remedy any defects referred
to in this clause, or requires administrative assistance in
obtaining access to records which are available only from the
Lessor, the Lessor, at its own expense, will provide all
reasonable assistance to the Lessee.
5.10.3 Despite any other provision in this Lease, the Lessee
acknowledges that this Lease is granted subject to any other
interests, rights, licences, easements or other agreements
binding upon the Lessor, or by statute, affecting the Land.
5.11 LODGEMENT OF DOCUMENTS
If:
5.11.1 an alteration or addition to the Track Infrastructure ("Works")
is permitted by this Lease;
5.11.2 any documents are required by an Authority to be signed and
lodged by the Lessor as the proprietor of the Land before the
Works are approved by the Authority or performed by the Lessee;
and
5.11.3 the Lessee has prepared and submitted the documents to the
Lessor,
then the Lessor must sign and permit the lodgement of the documents.
5.12 THE EXISTING LEASES
The Lessor and the Lessee covenant and acknowledge as follows in respect
of the Existing Leases:
5.12.1 The Lessor shall deliver to the Lessee, on or before the
execution of this Lease, copies of all documents in her
possession constituting the grant of an Existing Lease or
containing covenants or other contractual provisions applicable
to an Existing Lease.
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NOTE:- Every annexed page shall be signed by the parties to the dealing, or
where the party is a corporate body, be signed by the persons who have
attested the affixing of the seal of that body to the dealing.
5.12.2 On and from the Commencement Date and until the expiration or
earlier termination of the Existing Leases:
5.12.2.1 the Lessee shall be entitled to all the rights of a
concurrent lessee of the Lessor in respect of the
Land, including, without limitation, the right to
receive rent and any other moneys payable pursuant to
an Existing Lease on and after the Commencement Date
and to enforce the rights of the Lessor pursuant to an
Existing Lease on and after the Commencement Date; and
5.12.2.2 the Lessee must comply with all obligations of the
Lessor under the Existing Leases.
5.12.3 On and from the date of the execution of this Lease, the Lessor
shall not vary or amend an Existing Lease, accept the surrender
of an Existing Lease or release or discharge a Lessee under an
Existing Lease from performance of any obligations pursuant to
that Existing Lease without the prior written consent of the
Lessee.
5.13 CREATION OF EASEMENTS
5.13.1 Subject to subclause 5.13.3, the Lessor shall, if requested by
the Lessee, and at the cost and expense of the Lessee in all
things grant an easement for:
5.13.1.1 public or private access to and egress from the Land;
5.13.1.2 support of existing or future structures erected on or
from adjoining land (subject to any applicable building
and planning laws);
5.13.1.3 or services of whatever nature to the Land; where the
requested easement is reasonably necessary for the
purposes of undertaking Railway Operations on the Land.
5.13.2 This Lease is deemed to be subject to any easement created or
granted pursuant to this clause.
5.13.3 If the Lessor is of the view that either the creation or
amendment of or the nature or extent of the rights requested to
be agreed, granted or created in respect of any easement
requested by the Lessee is not reasonably necessary for the
purpose of Railway operations then the Lessor may refer the
matter to a relevant Expert under clause 13.13 who shall provide
an opinion as to whether the request is reasonably necessary for
the relevant purpose.
5.14 NATIVE TITLE
5.14.1 The Lessor agrees to notify the Lessee in writing of:
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NOTE:- Every annexed page shall be signed by the parties to the dealing, or
where the party is a corporate body, be signed by the persons who have
attested the affixing of the seal of that body to the dealing.
5.14.1.1 any native title claims which are lodged over any of
the Land after commencement of the Lease, within one
month of the Lessor receiving notice of such claim
pursuant to Section 66(2) of the Native Title Act
(Cth) 1993;
5.14.1.2 the progress of any native title claims which in any
way affects the Lessee's rights and obligations under
this Lease;
5.14.1.3 any Determination which in any way affects the Land,
within seven days of the Lessor being notified of
such Determination;
5.14.1.4 any agreement that has been entered into by the
Lessor with the Commonwealth or any Aboriginal group
concerning native title rights or Aboriginal Items
which in any way affects the Lessee's rights under
this Lease, within seven days of entering into such
agreement; and
5.14.1.5 any claim of the existence of any Aboriginal Item
which in any way affects the Land or the Lessee's
rights under this Lease, as soon as it becomes aware
of any such claim in its capacity as owner of the
Land.
5.14.2 Determination
5.14.2.1 The parties do not acknowledge that any native title
exists in any of the Land.
5.14.2.2 The following clause will apply in the event that
either;
5.14.2.2.1 native title is found to exist in any of
the Land under the NTA or any other law;
or
5.14.2.2.1 any Aboriginal Item is located on the
Land.
5.14.2.3 As between the Lessor and the Lessee:
5.14.2.3.1 the Lessor, and not the Lessee, will be
responsible for the payment of
compensation and any other moneys (if
any) payable to the native title holders
of any of the Land, the owners of any
Aboriginal Item and any other person
payable as a result of the grant of the
right of exclusive possession conferred
by this Lease; and
5.14.2.3.2 if the obligation to pay such
compensation or other moneys arises as a
result of the use to which the Lessee or
anyone claiming through or under the
Lessee puts the Land, and does not fall
within the
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NOTE:- Every annexed page shall be signed by the parties to the dealing, or
where the party is a corporate body, be signed by the persons who have
attested the affixing of the seal of that body to the dealing.
scope of clause 5.14.2.3.1,
the Lessee will be responsible for
payment.
5.14.3 Associated Definitions
5.14.3.1. ABORIGINAL HERITAGE LAW means a law regulating or
otherwise relating to the protection of matters of
Aboriginal cultural heritage significance including,
without limitation, the Aboriginal and Xxxxxx Xxxxxx
Islander Protection Act 1984 (Cth), the Aboriginal
Xxxxxxxx Xxx 0000 (SA) and the Aboriginal Relics Xxx
0000 (Tas);
5.14.3.2 ABORIGINAL ITEM means any object or site which is of
Aboriginal cultural heritage significance to any
Aboriginal Group;
5.14.3.3 DETERMINATION means any notice, order, judgement or
declaration issued or made by any government or
governmental authority, judicial or quasi-judicial
body, or tribunal that native title exists;
5.14.3.4 NTA means the Native Title Act (Cth) 1993 and
complementary South Australian legislation.
6. LESSEE'S OBLIGATIONS
6.1 GENERAL OBLIGATIONS
The Lessee must:
6.1.1 (COMPLIANCE) at its cost obtain all consents required
from any Authority to carry on Railway Operations on the
Land and comply in all relevant respects with all laws
affecting the Land, the Lessee's Property and the
conduct of Railway Operations on the Land;
6.1.2 (SERVICES) PAY WHEN DUE ALL SANITARY CHARGES AND ALL
CHARGES FOR GAS, electricity, telephone and any water
consumption charge, garbage removal and all charges for
the provision of any services relating to the Lessee's
use of the Land;
6.1.3 (NOTIFICATION) promptly notify the Lessor, as soon as
the Lessee becomes aware, of any statutory notice from
any Authority with respect to infectious disease or
pests on the Land;
6.1.4 (ACCIDENT, DANGER) promptly provide to the Lessor any
information reasonably required by the Lessor with
respect to:
6.1.4.1 any accident occurring on the Land or as a
result of use of the Track Infrastructure;
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NOTE:- Every annexed page shall be signed by the parties to the dealing, or
where the party is a corporate body, be signed by the persons who have
attested the affixing of the seal of that body to the dealing.
6.1.4.2 any specific material defect or want of repair
in any improvements on the Land; and
6.1.4.3 any specific circumstance which the Lessor
considers is reasonably likely to cause any
significant danger, risk or hazard to the Land
or to any person on the Land or to the public
or adjoining buildings in the immediate
vicinity of the Land;
upon receipt from the Lessor of a notice specifying the
accident, defect, want of repair or circumstance, its
location (so far as known to the Lessor) and in the case
of accident, the time at which it occurred or is
believed to have occurred.
6.1.5 (FIRE PREVENTION) comply with all requirements of any
Authority or insurer in respect of the prevention or
control of fires in the buildings and the Lessee's
Property on the Land or on the Land itself; and
6.1.6 (payment to Lessor) make every payment to the Lessor
under this Lease without any set-off, counterclaim,
withholding or deduction.
6.2 USE
The Lessee has the exclusive right to use, occupy and enjoy the Land
during the Term but subject to the terms of this Lease and to the
following:
6.2.1 during the five (5) years following the Commencing Date the
Lessee must carry on Railway Operations on and from the land in
accordance with the Minimum Service Requirements set out in
Schedule 3, and thereafter the Lessee must continue to use the
land for Railways Operations.
6.2.2 unless otherwise provided for in this Lease, the Lessee must not
use the Land throughout the Term for any purpose other than
Railway Operations except where such land is required for future
Railway Operations by the Lessee;
6.2.3 the Lessee must not take any action or knowingly allow any
action to be taken during the Term which will interrupt the
linear continuity of any Rail Corridor;
6.2.4 the Lessee must allow any other party holding from the Lessor at
the Commencing Date or holding as permitted by this Lease in
respect of the Land, such rights of occupation, access, passage,
easement, charge, use or any rights or benefits whatever as
exist at the Commencing Date including but not limited to the
rights described in Section 2 of the Schedule, the full and
unimpeded use of such rights or benefits according to and
subject to the terms upon which such rights or benefits were
conferred, and must:
6.2.4.1 not knowingly do or allow to be done anything on or in
respect of the Land or any adjoining land which the
Lessee owns or occupies
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NOTE:- Every annexed page shall be signed by the parties to the dealing, or
where the party is a corporate body, be signed by the persons who have
attested the affixing of the seal of that body to the dealing.
or otherwise has control over, which would interfere
with such rights or benefits otherwise than to
exercise a right under a term upon which such rights
or benefits were conferred; and
6.2.4.2 to the extent that the Lessee is aware of any such
obligations, rights or benefits, carry out the
obligations of and protect the Lessor in respect of
such rights or benefits;
6.2.5 the Lessee will be entitled to all revenues from the Land and
from the carrying on of any business on the Land and must pay
and discharge all Outgoings in accordance with Clause 3.2;
6.2.6 the Lessee must not remove any item of Track Infrastructure from
the Land other than pursuant to an order issued by an Authority
or in compliance with the Lessee's repair, maintenance and
replacement obligations under this Lease, or with the prior
written consent of the Lessor, which must not be unreasonably
withheld; it is acknowledged that it is not unreasonable for the
Lessor to withhold consent or to impose conditions if the Lessor
reasonably believes that removal would:
6.2.6.1 have a significantly adverse effect on continuation of
Railway Operations; or
6.2.6.2 have a significantly adverse effect on regional
economic or employment conditions.
The Lessor must provide written reasons if the Lessor withholds
consent or imposes conditions as to the basis of that decision.
6.2.7 the Lessee must not affix or construct any permanent improvement
to or on the Land other than with the prior written consent of
the Lessor, which must not be unreasonably withheld or as
permitted by the terms of this Lease; it is acknowledged that it
is not unreasonable for the Lessor to withhold consent or impose
conditions if in the Lessor's reasonable opinion the proposed
improvement:
6.2.7.1 is not intended for use for Railway Operations;
6.2.7.2 would adversely affect the viability of Railway
Operations;
6.2.7.3 would have a significantly adverse affect on the value
of the Lessor's reversionary right in the Land.
The Lessor must provide written reasons if the Lessor withholds
consent or imposes conditions as to the basis of that decision.
6.2.8 the Lessee must exercise reasonable care in its use and
maintenance of the Land to avoid reasonably foreseeable injury
to persons or property.
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NOTE:- Every annexed page shall be signed by the parties to the dealing, or
where the party is a corporate body, be signed by the persons who have
attested the affixing of the seal of that body to the dealing.
6.3 MAINTENANCE OF LAND
The Lessee must, to the extend necessary to avoid nuisance to
neighboring properties, to safeguard public safety and to maintain the
Lessee' ability to conduct Railway Operations:
6.3.1 (LAND) keep the Land (including fences) in good condition and
free of fire hazards and vermin in all respects (including,
without limiting the preceding requirements, grass cutting and
weed control and repairing and maintaining as required any
damage caused by fire, flood, lightning, storm, war or any act
of God);
6.3.2 (LESSEE'S PROPERTY) keep the Lessee's Property clean and in good
repair and condition;
6.3.3 (REMOVE REFUSE) remove all refuse from the Land regularly;
6.3.4 (CLEANING) keep any buildings on the Land clean and in good
condition; and
6.3.5 (DAMAGE) as soon as practicable repair any damage to the
Lessee's Property or the buildings on the Land.
6.4 NOTIFICATION OF DAMAGE
The Lessee must notify the Lessor as soon as practicable after the
Lessee becomes aware of any material damage to or defect in the Land,
the Lessee's Property or any building on the Land of which the cost of
repair or rectification is reasonably estimated to exceed $100,000.
6.5 LESSOR'S INTEREST IN LAND
6.5.1 The Lessee must not do anything which could prejudice the
Lessor's interest in the Land.
6.5.2 This clause is not intended to preclude the Lessee from doing
anything expressly permitted by this Lease.
6.6 COST AND RISK OF LESSEE'S OBLIGATIONS
If the Lessee is obliged to do anything under this Lease, it must do so
at its cost and at its risk.
6.7 ACCESS TO RECORDS
The Lessee must:
6.7.1 permit the Lessor access at all reasonable times to all
information held by the Lessee in any form relating to the Land,
the Track Infrastructure and the Lessee's compliance with the
terms of this Lease and the Lessee must make
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NOTE:- Every annexed page shall be signed by the parties to the dealing, or
where the party is a corporate body, be signed by the persons who have
attested the affixing of the seal of that body to the dealing.
no charge for access to records and plans but is entitled to
charge a reasonable fee to cover costs involved in supplying any
other information; and
6.7.2 store and maintain such information, records and plans to a
reasonable standard.
6.8 NATIONAL ESTATE SIGNIFICANCE
The parties agree and acknowledge:
6.8.1 the Lessee must conserve the significance of the National Estate
Land in the manner required by the Xxxxx Xxxxxxxxxx Xxxxxxxx Xxx
0000;
6.8.2 the Lessee must give to the Commission such assistance in the
carrying out of its functions as is reasonably practicable and
must comply with all reasonable requests for information made by
the Commission in the performance of its functions.
6.8.3 the Lessee must not take any action which is likely to affect
the National Estate Land to a significant extent unless:
6.8.3.1 it has notified the Lessor and the Commission and
afforded the Commission a reasonable opportunity to
comment upon the proposed action; and
6.8.3.2 the Lessee has obtained the consent of the Lessor
in writing to the action, such consent not to be
unreasonably withheld;
6.8.4 for the purposes of this clause 6.8, "significant extent" when
used in paragraph (c) in relation to National Estate Land
includes (without limitation) the following:
6.8.4.1 restoration of any building or improvements on any part
of the National Estate Land;
6.8.4.2 altering the fabric of any improvements on the National
Estate Land or replacing such fabric with another
material;
6.8.4.3 adding to or constructing nearby to existing
structures;
6.8.4.4 redesign and reconstruction of any improvements;
6.8.4.5 painting unpainted or original or early painted
surfaces;
6.8.4.6 altering the use of any improvements or the intensity
of the existing use;
6.8.4.7 cleaning the fabric of any improvement;
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NOTE:- Every annexed page shall be signed by the parties to the dealing, or
where the party is a corporate body, be signed by the persons who have
attested the affixing of the seal of that body to the dealing.
6.8.4.8 removing paint by mechanical chemical or blasting
methods;
6.8.4.9 applying masonry preservatives;
6.8.4.10 demolishing or removing parts of an existing
structure;
6.8.4.11 excavating or removing old soil or footings;
6.8.4.12 earthworks or landscaping;
6.8.4.13 removing or planting vegetation;
6.8.4.14 removing, changing or replacing machinery plumbing
sewerage or drains;
6.8.4.15 removing the contents of any improvements;
6.8.4.16 installing or upgrading any services;
6.8.4.17 road or path making;
6.8.4.18 discontinuing repairs or maintenance; and
6.8.4.19 the affixing of external signs.
7. INSURANCE, RISK AND INDEMNITIES
7.1 PUBLIC LIABILITY
The Lessee must take out and maintain a public liability insurance
policy in respect of the Land and the business and activities
conducted on the Land:
7.1.1 under which the maximum amount payable for a single claim
is at least $100,000,000, or any other amount from time to
time reasonably required by the Lessor and which a
reasonably prudent operator of railway operations for
carriage of freight would effect;
7.1.2 which contains all provisions that are normally contained
in public liability policies and any other provisions
reasonably required by the Lessor and available at
reasonable cost in the insurance market;
7.1.3 which, without limiting the rest of this clause 7, covers
death and injury to any person and damage to property of
any person sustained when that person is using or entering
the Land or resulting from any thing originating from the
Land; and
7.1.4 which expressly refers to and covers all of the Lessee's
obligations under this Lease, including the obligation to
indemnify the Lessor.
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NOTE:- Every annexed page shall be signed by the parties to the dealing, or
where the party is a corporate body, be signed by the persons who have
attested the affixing of the seal of that body to the dealing.
7.2 WORKERS' COMPENSATION
The Lessee must ensure that it is registered as an employer or an exempt
employer under the Workers Rehabilitation and Compensation Xxx 0000 (SA)
and that it pays all monthly and other levies due under the Act in
respect of its employees engaged for the purpose of Railway Operations
on the Land.
7.3 INDUSTRIAL SPECIAL RISKS
The Lessee must take out and maintain a policy covering the Lessee's
Property for their full insurable value on a full replacement and
reinstatement basis against loss or damage by fire, explosion,
lightning, storm and tempest, earthquake, aircraft, impact by vehicles
or vessels, riots, strikes, malicious damage, all water perils including
flood, spontaneous combustion and such other risks (if any) as the
Lessor may from time to time reasonably direct including extra costs of
reinstatement, cost of removal of debris and all professional fees
incurred in replacing and/or reinstating the Lessee's Property.
7.4 PROCEEDS OF INSURANCE
If any loss or damage occurs which is covered by any insurance the
Lessee is required to maintain under this Lease the Lessee must:
7.4.1.1 apply for the insurance proceeds immediately; and
7.4.1.2 apply the proceeds:
7.4.1.2.1 subject to the terms of the relevant insurance
policy first to such repairs, replacement,
reinstatement or other works on the Land as are
required to ensure that the Track Infrastructure
and other improvements on the Land are no less
capable of supporting the Railway Operations which
are conducted on the Land than they were
immediately before the event of loss or damage in
respect of which the insurance proceeds were paid;
and
7.4.1.2.2 secondly, to capital investment in equipment,
rolling stock or improvements for use in Railway
Operations.
7.4.2 If the parties do not agree on the application of any
insurance proceeds under this clause, the matter may be
referred by either party to expert determination.
7.5 POLICIES
The Lessee must do the following in respect of each policy that it is
required to maintain under this Lease:
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NOTE:- Every annexed page shall be signed by the parties to the dealing, or
where the party is a corporate body, be signed by the persons who have
attested the affixing of the seal of that body to the dealing.
7.5.1 take it out with an insurance company approved by the Lessor,
whose approval must not be unreasonably withheld and if
withheld, the reasons for withholding must be disclosed in
writing to the Lessee;
7.5.2 if requested by the Lessor, give the Lessor a copy of the policy
and a certificate of currency for the policy; and
7.5.3 ensure that the policy notes the interest of the Lessor and
contains a requirement that the insurer will not cancel or
change the insurance without first giving the Lessor 30 days
prior written notice.
7.6 MAINTAIN INSURANCE
7.6.1 The Lessee must notify the Lessor of any new use of the Land or
change in the character of activities conducted on the Land that
would:
7.6.1.1 increase the premium payable on any insurance policy
taken out by the Lessor; or
7.6.1.2 affect the Lessor's rights under insurance policy or
make the policy invalid or able to be cancelled; or
7.6.1.3 increase the risk of the Lessor or the exposure of
Lessor under any self insurance regime operated by the
Lessor or SAICORP on behalf of the Lessor.
7.7 DISCLAIMER
7.7.1 The Lessor, in specifying levels of insurance in this Lease,
accepts no liability for the completeness of their listing, the
adequacy of the sum insured, limit of liability, scope of
coverage, conditions or exclusions of those insurances in
respect to how they may or may not respond to any loss, damage
or liability.
7.7.2 The Lessee acknowledges and agrees that it is the Lessee's
responsibility to assess and consider the risks and scope of
insurances required for its activities pursuant to this Lease.
7.8 LESSOR'S RIGHTS TO INSURE
Notwithstanding any other provision of this Lease, if:
7.8.1 the Lessee fails to take out or keep in force an insurance
policy required pursuant to this Lease or to pay the appropriate
premiums when due; or
7.8.2 the Lessor determines that the insurer under a policy may not be
capable of meeting a claim;
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NOTE:- Every annexed page shall be signed by the parties to the dealing, or
where the party is a corporate body, be signed by the persons who have
attested the affixing of the seal of that body to the dealing.
the Lessor may do anything which is advisable or necessary to take out
or keep in force that policy or to take out a new policy complying with
this clause at the cost of the Lessee and in the name of the Lessee and
the Lessor. The Lessor is not obliged to do anything under this clause.
If the Lessee fails or refuses to:
7.8.3 obtain or maintain any insurances required under this clause; or
7.8.4 provide the Lessor with copies of policies or certificates of
currency in relation to them in accordance with this clause;
then the Lessor may, but is not obliged to, effect and maintain the
relevant insurance policy or pay the premiums in respect thereof. The
cost of the Lessor doing so will be a debt due by the Lessee to the
Lessor payable forthwith by the Lessee receiving written demand from the
Lessor requiring payment accompanied with copies of any receipts in
respect of the payment of such premiums.
7.9 LESSEE'S RISK
The Lessee occupies the Land at its own risk.
7.10 RELEASE OF LESSOR
To the extent permitted by law, the Lessee releases the Lessor from any
claim, action, damage, loss, liability, cost or expense which the Lessor
incurs or is liable for in connection with any damage, loss, injury or
death to or of any person or property on the Land except to the extent
(if any) that such damage, loss, injury or death is caused or
contributed to by the Lessor, or the Lessor's employees or agents.
7.11 INDEMNITY
The Lessee indemnifies the Lessor against any claim, action, damage,
loss, liability, cost or expense which the Lessor incurs or is liable
for in connection with:
7.11.1 any damage, loss, injury or death, either to person or property
except to the extent (if any) that such damage, loss, injury or
death is caused or contributed to by the Lessor, or the Lessor's
employees or agents;
7.11.2 any Event of Default;
7.11.3 the use and occupation of the Land by the Lessee or the Lessee's
Agents;
7.11.4 any service or the misuse of any service provided to the Land;
7.11.5 the escape of any matter or thing whatsoever from the Land;
7.11.6 the conduct of Railway Operations on the Land; and
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NOTE:- Every annexed page shall be signed by the parties to the dealing, or
where the party is a corporate body, be signed by the persons who have
attested the affixing of the seal of that body to the dealing.
7.11.7 the failure of the Lessee to comply with any of its obligations
under any Existing Lease, any grant, easement or other right of
use or occupation of the Land made pursuant to any agreement
entered into prior to the Commencing Date, made as permitted
under the terms of this Lease or entered into pursuant to any
statute or regulation,
except, in each case, to the extent that any such claim, action, damage,
loss, liability, cost or expense is caused or contributed to by the
wilful misconduct, fraud, or negligence of the Lessor.
7.12 CONTINUING INDEMNITY
Each indemnity of the Lessee contained in this Lease is:
7.12.1 in respect of an act, breach or omission which occurs before the
termination of this Lease, a continuing obligation of the Lessee
and remains in full force and effect after the termination of
this Lease; and
7.12.2 a separate and independent obligation of the Lessee.
8. ASSIGNMENT, SUBLEASE AND MORTGAGE
8.1 ASSIGNMENT
The Lessee must not assign or purport to assign this Lease
without the Lessor's prior written consent, which may be
withheld, or given subject to conditions, at the Lessor's entire
discretion. If the Lessor refuses consent to a proposed
assignment, or attaches conditions, the Lessor must give the
Lessee written notice of the reasons for refusal or for the
conditions.
8.2 SUBLEASE AND LICENSING
The Lessee must not grant a sublease or licence with respect to
any part of the Land without the Lessor's prior written consent,
unless the sublease or licence is a Permitted Dealing within the
meaning of the following subclause.
8.3 PERMITTED DEALING
Each of the following is a Permitted Dealing:
8.3.1 a licence over or use of the Rail Corridor for the
purposes of a legislative access regime, or any other
access regime established or recognised under Part 111A
of the Trade Practices Act;
8.3.2 a licence to a sub-lessee under a Permitted Dealing
which performs Railway Operations, for the purpose of
performing Railway Operations;
8.3.3 a licence with respect to traversing or using a part of
the Land to an adjoining landowner for purposes which do
not prevent use of the Land for
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NOTE:- Every annexed page shall be signed by the parties to the dealing, or
where the party is a corporate body, be signed by the persons who have
attested the affixing of the seal of that body to the dealing.
Railway Operations provided that any payment to the Lessee for
such licence does not exceed the Lessee's costs of administering
the arrangement and maintenance of the relevant portion of the
Land necessitated by the licensee's use of the portion of the
Land;
8.3.4 a sublease of any part of the Balance of the Land or of the Rail
Corridor excluding the railway track, provided that;
8.3.4.1 in respect of that part of the Land the Lessee must,
after the fifth anniversary of the Commencing Date,
pay Commercial Rent to the Lessee; and
8.3.4.2 that part of the Land continues to be used for
Railways Operations.
8.4 MORTGAGE
8.4.1 The Lessee must not grant an Encumbrance over this Lease without
the Lessor's prior written consent, which must not be withheld
except for sufficient cause, provided the following conditions
are met:
8.4.1.1 the Lessee has granted the Lessor a charge over the
Track Infrastructure to secure its option to purchase,
and constraint on the removal at the Track
Infrastructure under this Lease;
8.4.1.2 any financier holding security over any assets of the
Lessee's undertaking must enter into an agreement with
the Lessor of the nature contemplated in S.26 of the
Operations and Access Act on terms acceptable to the
Lessor and has entered into agreement as to an agreed
form of priority as between the financier's security
and the charge referred to in clause 8.4.1.1.
8.4.2 If the Lessor consents to the granting of an Encumbrance, and
subject to compliance with conditions required by the Lessor,
the Lessor will enter into a facilitation agreement with the
Encumbrance which incorporates terms to be agreed between the
Lessor, the Lessee and the Encumbrancee including:
8.4.2.1 the Lessor giving notice to the Encumbrancee of any
default by the Lessee under the terms of the Lease;
8.4.2.2 the Encumbrancee having the right to remedy any default
by the lessee of the terms of the Lease;
8.4.2.3 the Encumbrancee being entitled to appoint a
receiver/manager or the like and the same not being a
breach of the Lease so long as the receiver/manager or
the like conducts Railways Operations and continues to
perform the obligations of the Lessee under the Lease;
and
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NOTE:- Every annexed page shall be signed by the parties to the dealing, or
where the party is a corporate body, be signed by the persons who have
attested the affixing of the seal of that body to the dealing.
8.4.2.4 the Encumbrancee or a receiver/manager of the Lessee
have a reasonable period of time in which to sell the
Lessee's interest in the Land or the Lessee's Property
to a third party in order to realise its security.
In this clause:
8.4.3 "ENCUMBRANCE" means any of the following encumbrances of the
Lessee's interest in this Lease or the Land or the Lessee's
Property granted by the Lessee by way of security for the
payment or repayment of any Financial Accommodation provided or
any other form of indebtedness incurred by the Lessee in
performing its functions under this Lease;
8.4.3.1 a mortgage, charge, encumbrance, lease, licence,
instalment or conditional purchase agreement, pre-
emptive right, right of first refusal, agreement to
purchase on deferred terms, title retention agreement,
preferential right, trust arrangement by way of
security, conditional agreement or any other security,
interest or power", or
8.4.3.2 an agreement to grant or create any of the foregoing.
8.4.4 "ENCUMBRANCEE" means a person to whom the Lessee has granted or
in whose favour the Lessee has created an Encumbrance.
8.5 DEALING WITH TRACK INFRASTRUCTURE
8.5.1 The Lessee must not transfer or purport to transfer
title to the Track Infrastructure or any material part
of the Track Infrastructure to another person except:
8.5.1.1 with the prior written consent of the Lessor,
or
8.5.1.2 if the relevant part of the Track
Infrastructure has been removed from the Land
in accordance with the terms of this Lease.
If the Lessee purports to transfer title to Track Infrastructure
or any part of it in breach of the preceding subclause, title to
the Track Infrastructure or that part of the Track
Infrastructure is vested in the Lessor forthwith.
9 TERMINATION
9.1 EVENTS OF DEFAULT
9.1.1 The Lessor may terminate this lease forthwith and re-
enter and take possession of the Land or, subject to
paragraph (b), convert this Lease to a monthly tenancy
if any of the following events occurs, is not remedied
and is not waived by the Lessor:
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NOTE:- Every annexed page shall be signed by the parties to the dealing, or
where the party is a corporate body, be signed by the persons who have
attested the affixing of the seal of that body to the dealing.
9.1.1.1 (NON-PAYMENT) after the fifth anniversary of
the Commencing Date, the Lessee does not pay
the Rent (as referred to in paragraph (b) of
the definition of Rent) or any other money due
to the Lessor under this Lease within 30 days
after written demand has been served by the
Lessor on the Lessee;
9.1.1.2 (BREACH) the Lessee:
9.1.1.2.1 removes any Track Infrastructure
(except as permitted by this
Lease) without the Lessor's
consent and does not reinstate
that Track Infrastructure within
30 days of being required to do so
by the Lessor;
9.1.1.2.2 purports to assign or mortgage
this Lease or grant a sublease
(except as permitted by this
Lease) without the Lessor's
consent;
9.1.1.2.3 fails to establish its head office
in the Adelaide area within six
months of the Commencing Date, and
maintain it in the Adelaide area
until the expiry of 5 years from
the Commencing Date;
9.1.1.2.4 fails to maintain in operations at
the Dry Creek and Port Augusta
workshops until the expiry of 5
years after the Commencing Date;
9.1.1.3 (REPEAT OR SUBSTANTIAL BREACH)
The Lessee breaches any one of the following
obligations on four occasions during a twelve
month period (whether the breach is remedied
or not), or commits a substantial breach of
any of the following obligations and does not
remedy that breach as soon as reasonably
practicable and in any event within 90 days of
being served with notice from the Lessor
requiring the breach to be remedied;
9.1.1.3.1 the obligation to permit the
exercise of rights of third
parties over the Land;
9.1.1.3.2 the obligation to permit the
Lessor entry under clause 5.4;
9.1.1.3.3 the general obligations under
clause 6.1;
9.1.1.3.4 the obligation not to use the Land
for other than Railways
Operations;
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NOTE:- Every annexed page shall be signed by the parties to the dealing, or
where the party is a corporate body, be signed by the persons who have
attested the affixing of the seal of that body to the dealing.
9.1.1.3.5 the obligation to maintain the Land under
clause 6.3;
9.1.1.3.6 the obligation to comply with laws;
9.1.1.3.7 the obligation to comply with any
Environmental Notice under clause 14.
9.1.1.4 (COMPANY) any of the following occurs :
9.1.1.4.1 an Administrator is appointed under section 436A,
436B or 436C of the Corporations Law or any action is
taken to make such appointment over the Lessee;
9.1.1.4.2 an application is made to a court under section 459A
of the Corporations Law for an order or an order is
made that the Lessee be wound up;
9.1.1.4.3 except to reconstruct or amalgamate while solvent, on
terms approved by the Lessor (which approval must not
be unreasonably withheld), the Lessee enters into, or
resolves to enter into, a scheme of arrangement or
composition with, or assignment for the benefit of
all or any class of its creditors, or it proposes a
re-organisation, moratorium or other administration
involving any of them;
9.1.1.4.4 except to reconstruct or amalgamate while solvent on
terms approved by the Lessor (which approval must not
be unreasonably withheld), the entity resolves to
wind itself up, or otherwise dissolve itself, or
gives notice of intention to do so, or is otherwise
wound up or dissolved; or
9.1.1.4.5 the Lessee is or states that it is unable to pay its
debts when they become due and payable.
9.1.1.4.6 if the Lessee or a Related Party of the Lessee causes
or permits a change in the control of:
9.1.1.4.6.1 the composition of the Lessee's board of
directors;
9.1.1.4.6.2 more than half of the voting power of
the Lessee's board of directors;
9.1.1.4.6.3 more than half of the voting power of
the Lessee's issued share capital; or
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NOTE:- Every annexed page shall be signed by the parties to the dealing, or
where the party is a corporate body, be signed by the persons who have
attested the affixing of the seal of that body to the dealing.
9.1.1.4.6.4 more than half of the Lessee's used
share capital (excluding any part
which carries no right to
participate beyond a specified
amount in the distribution of
either profit or capital.
9.1.1.5 (FAILS TO PROVIDE MINIMUM SERVICES) during the first
five years of the Term, the Lessee fails;
9.1.1.5.1 to comply with the Minimum Service
Requirements for a continuous period of six
(6) months, and
9.1.1.5.2 to recommence the provision of those
Minimum Service Requirements within 30 days
of written notice from the Lessor
requesting that such services be provided.
9.1.1.6 (RAILWAY CEASES) the Lessee ceases to conduct Railway
Operations on the entire Rail Corridor for a
continuous period of eighteen (18) months.
9.1.2 If the Lessor converts this Lease to a monthly tenancy under
subclause 9.1.1, such monthly tenancy shall be on the same terms
as this Lease, and either party may terminate the monthly
tenancy by giving one week's written notice to the other.
9.2 PROCESS (TERMINATION)
9.2.1 In order to exercise the Lessor's right to require the Lessee to
terminate, the Lessor must give the Lessee a Termination Warning
Notice (which may be given before the right of the Lessor to
terminate arises, in respect of circumstances which the Lessor
believes will give rise to such a right, if continued) and at
the time the right arises or 60 days after the service of the
Termination Warning Notice (whichever is later), a Termination
Notice.
9.2.2 A Termination Warning Notice and a Termination Notice must:
9.2.2.1 be identified as a Termination Warning Notice or a
Termination Notice;
9.2.2.2 be dated; and
9.2.2.3 set out the facts on the basis of which the Lessor
believes the right to terminate has arisen or will
arise.
9.2.3 If the Lessee receives a Termination Warning Notice and wishes
to dispute that the Lessor is or will be entitled to terminate,
the Lessee must so notify the Lessor not later than one month
after the receipt of the Notice, stating the matters of fact and
any other matter contained in the Notice with which the
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NOTE:- Every annexed page shall be signed by the parties to the dealing, or
where the party is a corporate body, be signed by the persons who have
attested the affixing of the seal of that body to the dealing.
Lessee takes issue. The Lessee must also provide the Lessor with
such evidence as practicable in support of the Lessee's position
within 45 days of receipt of the Termination Warning Notice.
9.3 APPOINTMENT OF ATTORNEY
The Lessee irrevocably appoints the Lessor its attorney. The Lessor may,
in his or her name or in the name of the Lessee, do any of the following
after an Event of Default occurs, is not remedied and is not waived by
the Lessor:
9.3.1 any thing which ought to be done by the Lessee under this Lease;
9.3.2 exercise any right, power, authority, discretion or remedy of
the Lessee under this Lease; and
9.3.3 execute a transfer or surrender of this Lease.
9.4 INDEMNITY FOR BREACH
Subject to any obligation of the Lessor to mitigate its loss, the Lessee
indemnifies the Lessor against any claim, action, loss, damage, cost,
liability, expense or payment suffered or incurred by the Lessor in
connection with the Lessor's termination of this Lease under clause 9.
9.5 INTEREST ON OVERDUE MONEY
If the Lessee does not pay any money payable by it under this Lease by
the due date, it must pay interest on that amount on demand by the
Lessor. Interest is:
9.5.1 payable from the due date until payment is made by the Lessee
before and, as an additional and independent obligation, after
any judgment or other thing into which the liability to pay the
money payable becomes merged; and
9.5.2 calculated on daily balances at the rate of 1% per annum above
the rate for 90 day bills published in the Australian Financial
Review on, or as near as possible to, the due date; and
9.5.3 capitalised monthly.
9.6 OTHER REMEDIES
Nothing in this clause affects any other rights or remedies otherwise
available to either party in respect of any breach of this Lease,
including without limitation, the right to claim damages, or to apply
for an injunctive or declaratory relief or specific performance.
10. CONSEQUENCES OF TERMINATION OR EXPIRY
10.1 RIGHT TO ACQUIRE TRACK INFRASTRUCTURE
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NOTE:- Every annexed page shall be signed by the parties to the dealing, or
where the party is a corporate body, be signed by the persons who have
attested the affixing of the seal of that body to the dealing.
Upon termination or expiry of this Lease the Lessor may at its
election acquire all or any part of the Track Infrastructure
located on the Land as at the date of termination or expiry:
10.1.1 if termination occurs before the expiry of five years
from the Commencing Date, at no cost to the Lessor; and
10.1.2. in any other case, upon payment to the Lessee of the
Market Value of the Track Infrastructure.
10.2 USEABLE TRACK INFRASTRUCTURE
The Lessor may not exercise its right to acquire less than all the Track
Infrastructure located on the Land under the preceding subclause unless
the Track Infrastructure selected comprises an integrated package or
packages of infrastructure capable of use for Railway Operations.
10.3 UNACQUIRED TRACK INFRASTRUCTURE
With respect to any Track Infrastructure which the Lessor elects not to
acquire:
10.3.1 the Lessee may remove that part of the Track Infrastructure;
10.3.2 if it removes that part of the Track Infrastructure, the Lessee
must ensure that the portion of the Land from which it is
removed is not by reason of such removal left unsafe at the
Lessee's cost and to the Lessor's reasonable satisfaction; and
10.3.3 if the Lessee does not remove that part of the Track
Infrastructure before the expiry of the Term or within six
months after the termination of the Lease, then title to that
part of the Track Infrastructure passes to the Lessor.
10.3.4 If within twelve months after the expiry or termination of the
Lease, the Lessor:
10.3.4.1 commences to make use of the Track Infrastructure or
a part of the Track Infrastructure which the Lessor
elected not to acquire pursuant to this clause
("Unacquired Track Infrastructure") for Railway
Operations; or
10.3.4.2 makes the Unacquired Track Infrastructure available
to another person (a "Railway Licensee") for use in
Railway Operations; or
10.3.4.3 commences a process of calling for bids or tenders or
other process designed to lead to a contract under
which it is proposed that a Railway Licensee will
acquire or have the use of the Unacquired Track
Infrastructure for use in Railway Operations;
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NOTE:- Every annexed page shall be signed by the parties to the dealing, or
where the party is a corporate body, be signed by the persons who have
attested the affixing of the seal of that body to the dealing.
then the Lessor will be liable to pay to the Lessee the
Market Value of so much of the Unacquired Track
Infrastructure as the Lessor or the Railway Licensee
uses or acquires.
10.4 REMOVAL OF HAZARDS
The Lessee must comply with the Hazard Removal Obligation attaching to
any Significant Public Hazard on the Land or a part of the Land at the
time when;
10.4.1 the Lessee elects to or is required to Surrender the part of the
Land; or
10.4.2 the Lease expires or is terminated.
10.5 PROCESS (ACQUISITION OF TRACK INFRASTRUCTURE)
Within ninety days of termination of this Lease, or (if the parties have
not agreed to a renewal of this Lease) six months prior to the expiry of
the Term of this Lease the Lessee must give the Lessor written notice
("a Notice of Value and Condition "):
10.5.1 (if the Lessee would be entitled to payment for Track
Infrastructure) stating the Lessee's estimate of the Market
Value of the Track Infrastructure, itemised with respect to the
various components of the Track Infrastructure; and
10.5.2 describing any Significant Public Hazard on or in the Land.
10.5.3 Within 90 days of receiving a Finalisation Proposal, the Lessor
must advise the Lessee by notice in writing:
10.5.3.1 whether the Lessor elects to acquire any or all of
the Track Infrastructure ("Nominated Track
Infrastructure");
10.5.3.2 whether the Lessor accepts or disputes the Lessee's
assessment of its Market Value, and if it is
disputed, the Lessor's assessment of its Market
Value.
10.6 DISPUTED VALUATION
10.6.1 If the parties do not, within one hundred and twenty days of the
Notice of Value and Condition , agree on the Market Value of
Track Infrastructure which Lessor elects to acquire, then a
party may refer the matter to an independent Expert for
determination.
10.6.2 The independent expert must certify the Market Value of the
Nominated Track Infrastructure and within thirty days of receipt
of this determination the Lessor must either confirm or revoke
its election to acquire the Nominated Track Infrastructure or
part of it.
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NOTE:- Every annexed page shall be signed by the parties to the dealing, or
where the party is a corporate body, be signed by the persons who have
attested the affixing of the seal of that body to the dealing.
10.6.3 If the Lessor revokes its election to acquire any Track
Infrastructure after an Expert Determination of its Market Value
which exceeds the Lessor's assessment of its Market Value, then
the Lessor must pay the whole of the costs of the Expert
Determination.
10.7 SURRENDER OF THE LEASE AND CONSEQUENTIAL MATTERS
10.7.1 If the Lease is terminated, the Lessee must promptly execute and
deliver a surrender of the Lease.
10.7.2 If the Lease has been terminated or has expired, the Lessee must
promptly give vacant possession of the Land in the condition and
state of repair required under this Lease upon demand by the
Lessor, and the Lessor must promptly make any payment due to the
Lessee in respect of acquisition of the Nominated Track
Infrastructure.
10.7.3 If the Lessee has relinquished possession of the Land prior to
the expiry of a period of six months after termination of the
Lease, then until that date the Lessor will grant to the Lessee
a licence to come onto the Land to the extent reasonably
required and for the purpose of removing any Significant Public
Hazard or removing Track Infrastructure which has not been
acquired by the Lessor.
10.7.4 After the completion of the Hazard Removal Work in accordance
with clause 10.3, the Lessee will be taken to have made the Land
free from any Significant Public Hazard.
10.7.5 Must immediately remedy any damage caused to the Land in the
course of removal of the Lessee's Property and/or the Track
Infrastructure.
10.7.6 If the Lessee does not remedy any damage under clause, the
Lessor may do so at the Lessee's cost.
10.7.7 If the Lessee does not remove any Lessee's Property which it is
required to remove from the Land or from any place where it is
stored by the Lessor within seven days of being asked to do so
by the Lessor, that Lessee's Property (if the Lessor so elects)
becomes the property of the Lessor at no cost to the Lessor.
11. HAZARD REMOVAL
11.1 APPLICATION
This clause sets out the Hazard Removal Obligation that may
arise in circumstances set out in clause 4 or clause 10.
11.2 MEANINGS
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NOTE:- Every annexed page shall be signed by the parties to the dealing, or
where the party is a corporate body, be signed by the persons who have
attested the affixing of the seal of that body to the dealing.
11.2.1 Hazard Removal Obligation is the obligation of the
Lessee to remove or make safe any Significant Public
Hazard, by carrying out Hazard Removal Work;
11.2.2 A Significant Public Hazard is:
11.2.2.1 a tunnel, underpass, building bridge or other
structure which is unfit for use for its
intended purpose,
11.2.2.2 Contamination, other than Existing
Contamination as defined in clause 14,
11.2.2.3 an excavation, or
11.2.2.4 any inherently dangerous substance or thing,
located on the Land at the time of expiry or termination
of this Lease or located on a part of the Land
surrendered under clause 4.
11.2.3 Hazard Removal Work is:
11.2.3.1 with respect to a tunnel, underpass,
building, bridge or other structure,
demolition, removal of debris and levelling
of the site, or, at the Lessee's option,
permanently precluding physical access to, or
making good to the extent that the building
bridge or other structure is not unsafe for
any member of the public in, on or in its
vicinity;
11.2.3.2 with respect to Contamination, removal or
making harmless;
11.2.3.3 with respect to an excavation, filling in and
compacting;
11.2.3.4 with respect to an inherently dangerous
substance or thing, removal;
carried out safely, to a good workmanlike standard, and
without causing any unnecessary danger or damage to the
Land, to Track Infrastructure or to any persons.
11.3 EXCLUSION OF OBLIGATION
No Hazard Removal Obligation will attach to a Significant Public Hazard;
11.3.1 if it is also Track Infrastructure (other than tunnels and
bridges) acquired by the Lessor under clause 4 or clause 10; or
11.3.2 if it existed at the Commencing Date and is located on a part of
the Land on which a Non-Operational Line is located.
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NOTE:- Every annexed page shall be signed by the parties to the dealing, or
where the party is a corporate body, be signed by the persons who have
attested the affixing of the seal of that body to the dealing.
11.4 ATTACHMENT OF OBLIGATION
Subject to the preceding subclause, a Hazard Removal Obligation
attaches to:
11.4.1 any Significant Public Hazard with respect to which the
Lessor gives a Hazard Removal Notice under clause 4 or
clause 10; and
11.4.2 any Significant Public Hazard which is not identified by
the Lessee in a Notice of Value and Condition.
11.5 DISCHARGE OF OBLIGATION
A Hazard Removal Obligation is discharged:
11.5.1 when the Lessee has carried out the Hazard Removal Work;
or
11.5.2 in respect of a Significant Public Hazard not identified
by the Lessee in a Notice of Value and Condition, upon
the expiry of two years after the surrender of the part
of the Land on which the Significant Public Hazard is
located, if the Lessor has not within that time given
the Lessee a notice identifying that Significant Public
Hazard and requiring Hazard Removal Work to be carried
out on that Significant Public Hazard.
12. FORCE MAJEURE
12.1 DEFINITION
A "Force Majeure" circumstance is an event or circumstance
which, or the consequences of which, the party affected cannot:
12.1.1 (in the case of the Lessee) control or influence to the
extent necessary to permit the conduct of Railway
Operations or Minimum Service Requirements; or
12.1.2 avoid through prudent management processes, policies and
precautions, including (without limitation) through the
use of alternate resources and work around plans (in the
case of the Lessee, consistent with best railway
industry practices).
12.2 SPECIFIC CIRCUMSTANCES
Subject to clause 12.1, a Force Majeure Circumstance may
include:
12.2.1 fire, flood, earthquake, elements of nature of acts of
god, malicious damage, explosion, sabotage, toxic or
dangerous chemical contamination (other than as a result
of the Lessee's non-performance) riot, civil disorder,
rebellion or revolution in Australia;
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NOTE:- Every annexed page shall be signed by the parties to the dealing, or
where the party is a corporate body, be signed by the persons who have
attested the affixing of the seal of that body to the dealing.
12.2.2 any failure by the Lessor or the Lessee to perform its
obligations in accordance with the Lease;
12.2.3 Existing Contamination on the Land as defined in
clause 14;
12.2.4 any change in the law which changes the manner in
which the Lessee can lawfully perform Railway
Operations;
12.2.5 anything done by SACBH or another party purporting to
exercise any reservation under clauses 5.2, 5.4, 5.5,
5.12 or 6.2(c) if and to the extent that the rights so
reserved are exceeded;
12.2.6 the cessation of any activity in order to avoid an
obligation to pay significant compensation in respect
of a native title claim in respect of a part of the
Land, to the extent that, if paid, the use of that
part of the Land may become uneconomic.
12.2.7 a refusal of consent by the Lessor to the Lessee under
clause 6.2.6 or clause 6.2.7, if the Lessor's refusal
would be unreasonable were it not for the provisions
in these clauses by which refusal on the grounds of an
opinion concerning regional economic or employment
conditions is taken to be reasonable.
12.2.8 the absence of legislation or statutory instrument
exempting the Initial Track Infrastructure from the
requirements of planning legislation.
12.3 EXPENDITURE
The expenditure of money by a party is not a Force Majeure
Circumstance.
12.4 EFFECT
The obligations of a party under this Lease and any
corresponding entitlement of the other party arising out of a
failure to satisfy such obligations will be suspended to the
extent and for so long as the performance of the first-mentioned
party's obligations are prevented or delayed by a Force Majeure
Circumstance.
12.5 OBLIGATION TO WORK AROUND
The party affected by a Force Majeure Circumstance must use its
best endeavours to work around or overcome the effect of the
Force Majeure Circumstance.
12.6 NOTIFICATION
The claiming to be affected by a Force Majeure Circumstance must
notify the other party of a Force Majeure Circumstance as soon
as the affected party becomes aware that such a circumstance is
preventing it from complying with its obligations and in any
event promptly upon being notified by the other party of a
breach or failure in respect of which the affected party claims
to rely on the Force Majeure Circumstance.
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NOTE:- Every annexed page shall be signed by the parties to the dealing, or
where the party is a corporate body, be signed by the persons who have
attested the affixing of the seal of that body to the dealing.
12.7 ABATEMENT OF RENT
Notwithstanding the preceding subclause, the Lessee's obligation
to pay rent will not be suspended by reason of a Force Majeure
Circumstance, but if and to the extent that;
12.7.1 any part of the Land is rendered unusable for its
accustomed purposes; and
12.7.2 the Lessee has notified the Lessor of the part of the
Land rendered unusable and the reasons why it is
unusable;
Commercial Rent otherwise payable in respect of that part of the
Land will be reduced by a proportion equivalent to the
proportion of a year during which the part of the Land remains
unusable for the purpose of Railway Operations.
13. GENERAL
13.1 NOTICES
13.1.1 For the purpose of this clause notice means a notice,
consent, approval or other communication under this
Lease.
13.1.2 A notice must be signed by or on behalf of the person
giving it, addressed to the person to whom it is to be
given and:
13.1.2.1 delivered to that person's address;
13.1.2.2 sent by pre-paid mail to that person's
address; or
13.1.2.3 transmitted by facsimile to that person's
address.
13.1.3 A notice given to a person in accordance with this
clause is treated as having been given and received:
13.1.3.1 if delivered, on the day of delivery if
delivered before 5.00 pm on a Business Day,
otherwise on the next Business Day;
13.1.3.2 if sent by pre-paid mail, on the third
Business Day after posting; or
13.1.3.3 if transmitted by facsimile and a correct and
complete transmission report is received, on
the day of transmission if the report states
that transmission was completed before 5.00 pm
on a Business Day, otherwise on the next
Business Day.
13.1.4 For the purpose of this clause the address and facsimile
number of a person are those set out below that person's
name in the relevant Item in Schedule 2 or another
address of which that person may from time to time give
notice to each other person.
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NOTE:- Every annexed page shall be signed by the parties to the dealing, or
where the party is a corporate body, be signed by the persons who have
attested the affixing of the seal of that body to the dealing.
13.2 COMPLIANCE WITH LAW
The Lessee must comply with all applicable Laws in the conduct
of Railway Operations and any other activity on the Land.
13.3 GOVERNING LAW
This Lease is governed by the law in force in South Australia
and the parties submit to the non-exclusive jurisdiction of the
courts of South Australia and any courts which may hear appeals
from those courts in respect of any proceedings in connection
with this Lease.
13.4 WAIVER
13.4.1 The non-exercise of or delay in exercising any power or
right of a party does not operate as a waiver of that
power or right, nor does any single exercise of a power
or right preclude any other or further exercise of it or
the exercise of any other power or right. A power or
right may only be waived in writing, signed by the party
to be bound by the waiver.
13.4.2 The Lessor's acceptance of Rent or other money under
this Lease does not operate as a waiver of the Lessor's
rights under this Lease.
13.5 SEVERABILITY
Any provision in this Lease which is invalid or unenforceable in
any jurisdiction:
13.5.1 is to be read down for the purposes of that
jurisdiction, if possible, so as to be valid and
enforceable; or
13.5.2 if the provision cannot be read down under paragraph
(a), shall be severed if it is capable of being severed
to the extent of the invalidity or unenforceability,
without affecting the remaining provisions of this Lease or
affecting the validity or enforceability of that provision in any
other jurisdiction.
13.6 COUNTERPARTS
This Lease may be executed in any number of counterparts and all
of those counterparts taken together constitute one and the same
instrument.
13.7 FURTHER ASSURANCE
Each party must do, sign, execute and deliver and must procure
that each of its employees and agents does, signs, executes and
delivers, all deeds, documents, instruments and acts reasonably
required of it or them by notice from another party to carry out
and give full effect to this Lease and the rights and
obligations of the parties under it.
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NOTE:- Every annexed page shall be signed by the parties to the dealing, or
where the party is a corporate body, be signed by the persons who have
attested the affixing of the seal of that body to the dealing.
13.8 ENTIRE AGREEMENT
Subject to any agreement under clause 8.4 and to the Agreement
to Lease:
13.8.1 this Lease is the entire agreement of the parties on the
subject matter;
13.8.2 the only enforceable obligations and liabilities of the
parties in relation to the subject matter are those that
arise out of the provisions contained in this Lease;
13.8.3 all representations, communications and prior agreements
in relation to the subject matter are merged in and
superseded by this Lease; and
13.8.4 any subsequent variation of this Lease must be in
writing in appropriate form and executed by both the
Lessor and the Lessee.
13.9 COSTS AND EXPENSES
The Lessee must pay all reasonable costs and expenses of the
Lessor in relation to:
13.9.1 the negotiation, preparation, execution, delivery,
stamping, registration, completion, renewal, extension,
variation, termination and surrender of this Lease;
13.9.2 the enforcement, protection or waiver, or attempted
enforcement or protection of any right under this Lease;
13.9.3 the consideration or giving of any consent by the Lessor
under this Lease;
13.9.4 any necessary survey of the Land whether for the purpose
of enabling this Lease to be registered or otherwise;
and
13.9.5 all stamp duty assessed in respect of this Lease and any
fees payable if this Lease is to be registered pursuant
to the Real Property Act, 1886,
including, but not limited to, any reasonable legal costs and
expenses and any reasonable professional consultant's fees for
any of the above on a full indemnity basis.
13.10 EXCLUSION OF STATUTORY PROVISIONS
The covenants, powers and provisions implied in Leases by the
Real Property Act, 1886 do not apply to this Lease.
13.11 MITIGATION
Each party must take all reasonable steps to minimise any loss
or damage resulting from a breach of this Lease by the other
party.
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NOTE:- Every annexed page shall be signed by the parties to the dealing, or
where the party is a corporate body, be signed by the persons who have
attested the affixing of the seal of that body to the dealing.
13.12 PAYMENT AFTER NOTICE
13.12.1 If either party gives a notice terminating this Lease,
or the Lessor gives a notice demanding immediate
possession of the Land, the Lessor's acceptance of, or
demand for, Rent or any other money:
13.12.1.1 is not evidence of a new Lease for the
Land; and
13.12.1.2 does not alter the legal effect of the
notice.
13.12.2 If the Lessee continues to occupy the Land unlawfully
after termination of this Lease the Lessee must pay an
amount equal to the Rent (by weekly instalments) as
compensation for its occupation of the Land.
13.13 DISPUTES PROVISION
13.13.1 The parties must act reasonably and promptly and
endeavour in good faith to resolve any dispute between
them.
13.13.2 Informal Resolution
13.12.2.1 The parties agree that if any dispute arises
between them, and prior to any party
commencing legal proceedings (other than
legal proceedings seeking immediate
interlocutory or interim relief), or expert
determination that party is entitled to give
notice of such matter and the parties must
for a period of twenty (20) Business Days
following such notice thereafter ("INFORMAL
RESOLUTION PERIOD") attempt to resolve the
disputed matter informally in a timely
manner and in accordance with the procedures
set forth in this sub-clause.
13.13.2.2 The parties must with a view to resolving
the disputed matter, procure a meeting,
within the Informal Resolution Period, of
senior executives of the parties together
with such other advisers and experts who may
be able to facilitate a resolution of the
disputed matter.
13.13.2.3 Any meeting must be convened at a convenient
location in South Australia and must be
conducted in good faith such that each of
the parties approaches the disputed matter
in the spirit of mutual understanding and
collaboration.
13.13.3 ISSUES FOR EXPERT DETERMINATION
If a matter or dispute arises which is required by this lease to
be referred to an expert determination and it has not been
resolved by, or in accordance with the informal process
contained in this clause, the parties must jointly
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NOTE:- Every annexed page shall be signed by the parties to the dealing, or
where the party is a corporate body, be signed by the persons who have
attested the affixing of the seal of that body to the dealing.
appoint an independent expert ("Expert") to resolve the matter
in accordance with the following provisions of this clause.
13.13.4 If the parties cannot agree on the Expert within forty
(40) Business Days of the notice referred to in
subclause 12.13(b), they shall exchange written lists,
each identifying five (5) individuals whom the party
would accept as the Expert to determine the matter. In
the absence of an individual common to each list or if
more than one individual is common to each list, the
appointment shall be referred to the President for the
time being of the law Society of South Australia for the
selection of an Expert from one of the lists in the
former instance and to determine which of the commonly
acceptable individuals shall be appointed in the latter
instance.
13.13.5 The Expert appointed in accordance with this clause must
be required to provide a report to each party as soon as
practicable after being appointed and must otherwise
regulate the receipt of submissions and his or her
process of determination in such manner as the Expert
shall see fit.
13.13.6 The costs of the Expert appointed in accordance with
this sub-clause must be borne in accordance with a
determination by the Expert having regard to the nature
of the dispute, the respective positions of the parties
and the submissions made by them and must be otherwise,
in the opinion of the Expert, fair and equitable in all
the circumstances.
13.13.7 the determination of an Expert under the provisions of
this Lease in the absence of a manifest error of fact or
miscalculation in the reasons for the determination is
binding upon the parties.
13.14 CONFIRMATION OF COMPLIANCE WITH LEASE
13.14.1 A party (the "Requesting Party) may, in order to
ascertain its or a third party's right, entitlements or
obligations, request the other party ("the Responding
Party") to confirm in writing either that the Responding
Party agrees that a particular act, matter or thing does
or a proposed act, matter or thing would, if done,
constitute an act, matter or thing carried out in
accordance with or otherwise satisfy, in a specified
respect, the terms of this Lease (a "Positive Response")
or that the Responding party does not so agree (a
"Negative Response"). The Requesting Party shall provide
sufficient information as is reasonably necessary for
the Responding Party to make a proper assessment of the
matter.
13.14.2 On receipt of a request by a Requesting Party under this
clause or upon the receipt of the information requested
by the Responding Party pursuant to paragraph (c) of
this subclause, the Responding Party must as soon as
reasonably possible;
13.14.2.1 provide a Positive Response;
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NOTE:- Every annexed page shall be signed by the parties to the dealing, or
where the party is a corporate body, be signed by the persons who have
attested the affixing of the seal of that body to the dealing.
13.14.2.2 provide a Negative Response; or
13.14.2.3 request any additional information that the
Responding Party reasonably requires in
order to make a proper assessment of the
matter.
13.14.3 If a Responding Party gives a Negative Response then the
Responding Party shall provide sufficient details of its
reasons for reaching that response to enable the
Requesting Party to determine what acts, matters or
things the Requesting Party would have to do in order to
comply with or satisfy the provisions of this Lease.
13.14.4 If the Responding Party provides a Positive Response
then the Positive Response is binding on the Requesting
Party and the Responding Party in relation to the
application of the provisions of this Lease as to the
relevant act, matter or thing as disclosed by the
Requesting Party to the Responding Party in the notice
specified in subclause 13.14.1 only on the basis of and
by reference to the information provided to the
Responding Party by the Requesting Party pursuant to
this clause.
13.14.5 If the Responding Party provides a Positive Response and
any information provided to the Responding Party for the
purpose of making an assessment is false, misleading,
inaccurate or incomplete in a material respect, then the
Positive Response shall not be binding on the Requesting
Party and the Responding Party in relation to the
application of the provisions of this Lease as to the
relevant act, matter or thing, and the Requesting Party
is liable for any expense, loss or damage caused as a
result of reliance on the information so provided.
13.15 LESSEE'S WARRANTY
The Lessee warrants that it has not been induced to enter into
this Lease by any express or implied statement, warranty or
representation:
13.15.1 whether oral, written or otherwise;
13.15.2 made by or on behalf of the Lessor in respect of the
Land or anything relating to, or which could have an
effect on, the Land including but not limited to:
13.15.2.1 the fitness or suitability of the Land for
any purpose;
13.15.2.2 any fixtures, facilities or amenities on the
Land; or
13.15.2.3 the conduct of any other business in the
buildings located on the Land.
13.16 NO MERGER
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NOTE:- Every annexed page shall be signed by the parties to the dealing, or
where the party is a corporate body, be signed by the persons who have
attested the affixing of the seal of that body to the dealing.
The provisions of this Lease do not merge on termination.
13.17 EXCLUSION OF MORATORIUM
To the extent permitted by law, any legislation which:
13.17.1 lessens or otherwise varies or affects any obligation
under this Lease to the detriment of the Lessor; or
13.17.2 stays, postpones or otherwise prejudicially affects
the Lessor's exercise of any right, power, remedy or
discretion under this Lease,
is excluded from this Lease.
14. CONTAMINATION
14.1 DEFINITIONS
ENVIRONMENTAL LAW means any statute or common law relating to
the storage, handling or transportation of waste, dangerous
goods or hazardous material, relating to occupational health and
safety or which has as one of its purposes or effects the
protection of the environment.
ENVIRONMENTAL NOTICE means any direction, order, demand or other
requirements to take any action or refrain from taking any
action in respect of the Land or its use from any Authority,
whether written or otherwise and in connection with any
Environmental Law.
14.2 EXISTING CONTAMINATION AND COMMONWEALTH REMEDIATION
14.2.1 The Lessee acknowledges that it is aware of, and the
Lessor is not liable to the Lessee in respect of,
Contamination on the Land as at the Commencing Date
("EXISTING CONTAMINATION");
14.2.2 The parties acknowledge that the Commonwealth has agreed
with the Lessee to conduct Remediation Works on the Land
to remove or make harmless the Existing Contamination.
14.2.3 The Lessee must license the Commonwealth by its
servants, agents and contractors, to enter on the Land
for the purpose of the Remediation Works, on terms and
conditions reasonably agreed for that purpose and the
Lessor consents to the Lessee giving the Commonwealth
such licence.
14.3 COMPLIANCE WITH ENVIRONMENTAL NOTICES
14.3.1 The Lessee must, at its cost, promptly comply with any
Environmental Notice issued after the Commencing Date,
but only if and to the extent that the Contamination of
the Land has been caused or contributed to after the
Commencing Date.
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NOTE:- Every annexed page shall be signed by the parties to the dealing, or
where the party is a corporate body, be signed by the persons who have
attested the affixing of the seal of that body to the dealing.
14.3.2 The Lessee must give the following to the Lessor, within
7 days of receipt:
14.3.2.1 a copy of any Environmental Notice;
14.3.2.2 copies of all reports, invoices and other
documents relating to the Lessee's compliance
(if any) with an Environmental Notice; and
14.3.2.3 any other information relating to an
Environmental Notice or the Lessee's
compliance (if any) with it.
14.4 INDEMNITY
The Lessee indemnifies the Lessor against any loss, claim,
liability, cost or expense suffered or incurred by the Lessor in
respect of:
14.4.1 any Contamination of the Land caused or contributed to
by the Lessee, to the extent that the Lessee caused or
contributed to it;
14.4.2 any pollution from or to the Land after the Commencing
Date; and
14.4.3 any Environmental Notice made after the Commencing Date
except to the extent that it applies to Existing
Contamination; and
including legal costs on a full indemnity basis.
15. EXCLUSION OF COVENANTS IMPLIED BY STATUTE
15.1 REAL PROPERTY ACT
Pursuant to section 262 of the Real Property Act, 1886, the operation
of sub section 125(1) and 125(2) of the Real Property Act, 1886 is
expressly negatived and shall not be implied as a power of the Lessor
in respect of this Lease.
15.2 LANDLORD AND TENANT ACT
The operation of subsection 4(1) of the Landlord and Xxxxxx Xxx, 0000
is expressly negatived and shall not be implied as a power of the
Lessor in respect of this Lease.
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NOTE:- Every annexed page shall be signed by the parties to the dealing, or
where the party is a corporate body, be signed by the persons who have
attested the affixing of the seal of that body to the dealing.
16. FURTHER ASSURANCES
The parties shall do all acts, matters and things and sign all documents
and shall cause to be done all acts necessary to give full effect to the
terms of this Lease.
17. ACKNOWLEDGEMENT THAT THIS LEASE IS NOT A "MISCELLANEOUS LEASE"
The Lessor and the Lessee acknowledge and agree that this Lease is not
and shall not be construed as being a miscellaneous lease for the
purposes of the Xxxxx Xxxxx Xxx, 0000.
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NOTE:- Every annexed page shall be signed by the parties to the dealing, or
where the party is a corporate body, be signed by the persons who have
attested the affixing of the seal of that body to the dealing.
*SCHEDULE 1 LAND
*SCHEDULE 2 ADDRESSES FOR NOTICES
*SCHEDULE 3 RAIL CORRIDORS
*SCHEDULE 4 MINIMUM SERVICES TO BE PROVIDED BY THE LESSEE
*SCHEDULE 5 SACBH AGREEMENT
*SCHEDULE 6 PART A: NATIONAL ESTATE LAND
PART B: STATE HERITAGE
*OMITTED SCHEDULES
UPON WRITTEN REQUEST, THE REGISTRANT WILL PROVIDE COPIES OF ANY OF THE
REFERENCED OMITTED SCHEDULES.
SIGNED SEALED AND DELIVERED )
for and on behalf of THE CROWN IN )
THE RIGHT OF THE STATE OF )
SOUTH AUSTRALIA by )
being a duly authorised person in the
presence of:
.....................................
...........................
THE COMMON SEAL of [name of Lessee] )
was affixed in the presence of, and )
the sealing is witnessed by: )
......................................
Secretary
...........................
Name (printed):) Director
Name (printed):
SIGNED SEALED AND DELIVERED )
by [name of Guarantor] in the presence of: )
)
......................................
Witness
.........................
Name (printed):
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NOTE:- Every annexed page shall be signed by the parties to the dealing, or
where the party is a corporate body, be signed by the persons who have
attested the affixing of the seal of that body to the dealing.
