.
.
.
EXHIBIT 4.20
QUEENSLAND LAND REGISTRY FORM 13 Version 5
Land Title Act 1994, Land Act 1994 AMENDMENT Page 1 of 58
and Water Act 2000
Duty Imprint
PRIVACY STATEMENT
The information from this form is collected under the authority of the Land
Title Act 1994 the Land Act 1994 and the Water Act 2000 and is used for the
purpose of maintaining the publicly searchable registers in the land registry
and the water register
LODGER (Name, address & phone number) LODGER
1. TYPE/DEALING NO OF INSTRUMENT/DOCUMENT BEING AMENDED
Allens Arthur Robinson CODE
Type of Instrument/Document Lease Lawyers
123 Eagle Street Brisbane 4000 024
Dealing Number 706009811 Tel: (07) 3334 4000
Ref: NJCS:XXFS:205068399
2. LOT ON PLAN DESCRIPTION COUNTY PARISH TITLE REFERENCE
Lot 108 on CP SL7249 Stanley Woogaroo 15798160
3. GRANTOR/MORTGAGOR/LESSOR
Amaca Pty Limited (ACN 000 035 512)
4. GRANTEE/MORTGAGEE/LESSEE
James Hardie Australia Pty Limited (ACN 084 635 558)
5. REQUEST/EXECUTION
The parties identified in items 3 and 4 agree that the instrument/document in
item 1 is amended in accordance with the attached schedule.
Each attorney executing this Deed states that he or she has no notice of
revocation or suspension of his or her power of attorney.
EXECUTION DATE LESSOR'S SIGNATURE
Executed by AMACA PTY LIMITED
16/ 03 / 2004
/s/ Peter Edward John Jollie
----------------------------
Director Signature
Peter Edward John Jollie.........Full Name
/s/ Dennis John Cooper
----------------------
Director/Secretary Signature
Dennis John Cooper.............. Full Name
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EXECUTION DATE LESSEE'S SIGNATURE
Signed for JAMES HARDIE AUSTRALIA PTY
LIMITED by its attorney under power of
attorney registered No. 707644 dated 12
17/ 03 / 2004 March 2004 in the presence of:
/s/ Joanne Marchione
-----------------------
Attorney Signature
Joanne Marchione................. Full Name
/s/ Josie Hui
-----------------------
Witness Signature
Josie Hui........................ Full Name
EXECUTION DATE GUARANTOR'S SIGNATURE
SIGNED for JAMES HARDIE INDUSTRIES N.V. by
its attorney under power of attorney
registered No. 707564412 dated 12 March
17/ 03 / 2004 2004 in the presence of:
/s/ Joanne Marchione
-----------------------
Attorney Signature
Joanne Marchione................ Print Name
/s/ Josie Hui
-----------------------
Witness Signature
Josie Hui....................... Print Name
QUEENSLAND LAND REGISTRY FORM 20 Version 2
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and Water Act 2000 ADDITIONAL PAGE/DECLARATION
TITLE REFERENCE 15798160 PAGE 3 OF 58
This is the Schedule referred to in the Form 13 Amendment dated 23 March 2004.
Lease 706009811 is varied as follows with effect from the Effective Date (as
defined below).
1. delete pages 1-39 and Exhibits A and B;
2. insert annexures B to D of this Amendment as annexures B to D of the
lease; and
3. insert the following as the Schedule.
SCHEDULE OF TERMS
OPERATIVE PROVISIONS
ITEM TERM DEFINITION
1. Lessor Amaca Pty Limited (ACN 000 035 512) of 65 York Street, Sydney, NSW
2. Lessee James Hardie Australia Pty Limited (ACN 084 635 558) of 10 Colquhoun Street,
Rosehill, NSW
3. Land Certificate of Title 15798160
4. Premises The Land, buildings and other improvements situated at the Corner of Cobalt and
Silica Streets, Carole Park, QLD in the condition in which they exist as at the
Effective Date and includes the Lessor's Fixtures.
5. Term 20 Years 4 months and 23 days
6. Commencing Date 1 November 1998
7. Terminating Date 23 March 2019
8. Further Term 2 further terms each of 10 years, the last expiring on 23 March 2039.
9. Rent $1,000,000.00 per annum, payable as prescribed in clauses 4.1 and 4.2, and
subject to review as specified in clauses 4.4, 4.5, 4.6 and 4.7.
10. Review Dates The Review Dates for review of the Rent are as follows:
(a) Fixed Review Dates shall be each anniversary of the Effective Date during
the Term other the Commencing Date of a Further Term; and
(b) Market Review Dates shall be the seventh anniversary of the Effective
Date.
11. Permitted Use Manufacture, warehousing, distribution and sales of fibre cement products and
systems and all associated activities (including offices) and any other use for
which the Lessee may lawfully use the Premises.
12. Public Risk $50,000,000
Insurance
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ITEM TERM DEFINITION
13. Review Dates for the The Review Dates for the review of the Rent in each Further Term and the method
Further Term of review shall be as follows.
(a) Fixed Review Dates shall be on each anniversary of the Commencing Date of
that Further Term other than the Commencing Date of a Further Term; and
(b) Market Reviews Dates shall be the Commencing Date of that Further Term and
the fifth anniversary of the Commencing Date of that Further Term.
14. Lessee's Proportion 100%
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1. INTERPRETATION
1.1 DEFINITIONS
The following definitions together with those in the Schedule apply unless
the context requires otherwise.
APPURTENANCE includes any drain, basin, sink, toilet or urinal.
AUSTRALIAN INSTITUTE means the Australian Property Institute Inc.
(Queensland Division).
AUTHORISATION includes any authorisation, approval, consent, licence,
permit, franchise, permission, filing, registration, resolution,
direction, declaration, or exemption.
AUTHORISED OFFICER means any director or secretary, or any person from
time to time nominated as an Authorised Officer by a party by a notice to
the other party accompanied by specimen signatures of all new persons so
appointed.
AUTHORITY includes:
(a) (GOVERNMENT) any government in any jurisdiction, whether federal,
state, territorial or local;
(b) (PUBLIC UTILITY) any provider of public utility services, whether
statutory or not; and
(c) (OTHER BODY) any other person, authority, instrumentality or body
having jurisdiction, rights, powers, duties or responsibilities over
the Premises or any part of them or anything in relation to them
(including the Insurance Council of Australia Limited).
BUILDING means those improvements (if any) described or referred to in
Item 4.
BUSINESS DAY means any day except Saturday or Sunday or a day that is a
public holiday throughout Queensland.
CLAIM includes any claim, demand, remedy, suit, injury, damage, loss,
Cost, liability, action, proceeding, right of action, claim for
compensation and claim for abatement of rent obligation.
COMPETITOR means any person engaged in the manufacture, distribution or
sale of fibre cement products and underground drainage pipes made of
concrete or fibre cement and:
(a) includes persons engaged in the businesses known as or trading under
names which include the words "Lafarge", "CSR" and "BGC"; but
(b) excludes any third party logistics operator.
CONSENT means prior written consent.
COUNCIL means Ipswich City Council.
COST includes any reasonable cost, charge, expense, outgoing, payment or
other expenditure of any nature (whether direct, indirect or consequential
and whether accrued or paid) including where appropriate all rates and all
reasonable legal fees.
EFFECTIVE DATE means 24 March 2004.
EMPLOYEES means employees, agents, invitees and contractors.
ENVIRONMENT means components of the earth, including:
(a) land, air and water;
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(b) any layer of the atmosphere;
(c) any organic or inorganic matter and any living organism; and
(d) human-made or modified structures and areas, and includes
interacting natural ecosystems that include components referred to
in paragraphs (a) to (c).
ENVIRONMENTAL LAW means a provision of Law, or a Law, which provision or
Law relates to any aspect of the Environment, safety, health or the use of
Substances or activities which may harm the Environment or be hazardous or
otherwise harmful to health.
EVENT OF DEFAULT means any event referred to in clause 12.1.
FIXED REVIEW means a review of the Rent in accordance with clause 4.7.
FIXED REVIEW DATES means a date on which a Fixed Review is to occur as set
out in Item 10.
FURTHER TERM means the further term or terms (as the case may be),
specified in Item 8.
GST means the goods and services tax as imposed by the GST Law including,
where relevant, any related interest, penalties, fines or other charge to
the extent caused by any default or delay by the Lessee.
GST AMOUNT means, in relation to a Payment, an amount arrived at by
multiplying the Payment (or the relevant part of a Payment if only part of
a Payment is the consideration for a Taxable Supply) by the appropriate
rate of GST (being 10% when the GST Law commenced).
GST LAW has the meaning given to that term in A New Tax System (Goods and
Services Tax) Act 1999, or, if that Act is not valid or does not exist for
any reason, means any Act imposing or relating to the imposition or
administration of a goods and services tax in Australia and any regulation
made under that Act.
GUARANTOR means James Hardie Industries N.V..
INITIAL TERM means the first 20 years 4 months and 23 days term of this
Lease commencing on 1 November 1998.
INTEREST RATE means the minimum rate of interest charged by the
Commonwealth Bank of Australia, on an overdraft of $100,000 plus 2%.
LAND means the land described in Item 3.
LAND TAX means land taxes or taxes in the nature of a tax on land.
LAW includes any requirement of any statute, rule, regulation,
proclamation, ordinance or by-law, present or future, and whether state,
federal or otherwise.
LEASE means this lease between the Lessor and the Lessee.
LEASE YEAR means every 12 month period commencing on and from the
Commencing Date.
LESSEE means the party specified in Item 2, its successors and assigns.
LESSEE'S BUSINESS means the business carried on or entitled to be carried
on in the Premises in compliance with the Permitted Use of the Premises.
LESSEE'S FITOUT AND FITTINGS means all fixtures, fittings, plant,
equipment, partitions or other articles and chattels of all kinds (other
than stock-in-trade) which satisfy all of the following:
(a) they are owned by or leased by third parties to the Lessee; and
(b) they are, at any time, in or attached to the Premises or the
Licensed Area.
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LESSEE'S PROPORTION means that proportion which the Lettable Area of the
Premises bears to the area of the Land determined in accordance with the
Method of Measurement from time to time and which at the Commencing Date
of the lease for the Initial Term is that proportion set out in Item 14.
LESSOR means the party specified in Item 1 or the party for the time being
entitled to the reversion expectant upon expiration or prior determination
of the Lease.
LESSOR'S ASSET REGISTER means the list of items in the Premises or the
Licensed Area contained in Annexure B.
LESSOR'S FIXTURES means all fixtures in the Premises owned by the Lessor
including the items listed in the Lessor's Asset Register and:
(a) (GENERAL) all plant and equipment, mechanical or otherwise which
forms part of the base Building, fittings, fixtures, furniture,
furnishings of any kind, including window coverings, blinds and
light fittings; and
(b) (FIRE FIGHTING) all stop cocks, fire hoses, hydrants, other fire
prevention aids and all fire fighting systems from time to time
located in the Premises or which may service the Premises and be on
the Land.
LETTABLE AREA means the gross lettable area determined in accordance with
the Method of Measurement.
LIQUIDATION includes liquidation, official management, receivership,
compromise, arrangement, amalgamation, administration, reconstruction,
winding up, dissolution, assignment for the benefit of creditors,
arrangement or compromise with creditors, bankruptcy or death.
MAKE GOOD BUILDINGS means the buildings and other improvements hatched on
the plan in Annexure C.
MARKET RENT means the Rent which could be obtained with respect to the
Premises as at a particular Market Review Date in an open market by a
willing but not anxious Lessor assessed using the criteria in clause
4.5(g).
MARKET REVIEW means a review of the Rent in accordance with clause 4.4 and
(if applicable) clauses 4.5 and 4.6.
MARKET REVIEW DATE means a date on which a Market Review is to occur as
set out in Item 10.
METHOD OF MEASUREMENT means the Method of Measurement of Buildings (1997
Revision) adopted by the Property Council of Australia Limited (formerly
the Building Owners and Managers Association of Australia Limited). The
Method of Measurement shall remain fixed for the term of this Lease and
any Further Term despite any subsequent editions or variations which may
be issued.
NON-MAKE GOOD BUILDINGS means the buildings and other improvements
crosshatched on the plan in Annexure C.
OUTGOINGS means:
(a) (COUNCIL RATES) all charges payable to the Council:
(i) levied or charged with respect to the Land or the Premises or
their use or occupation;
(ii) for any services to the Land or the Premises of the type from
time to time provided by the Council; and/or
(iii) for waste and general garbage removal from the Land or the
Premises (including any excess);
(b) (WATER RATES) all charges payable to an Authority:
(i) levied or charged with respect to the Land or the Premises or
their use or occupation; and
(ii) for the provision, reticulation or discharge of water and/or
sewerage and/or drainage (including meter rents) to the Land
or the Premises;
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(c) (MANAGEMENT FEES) reasonable fees for management of the Premises,
capped at 1% of the Rent and Outgoings from time to time; and
(d) (INSURANCES) where the Lessor has effected the policy, all insurance
premiums payable in respect of insurances for the Premises for its
full insurable or replacement value to cover damage by fire, storm,
tempest, impact and other usually insured risks of that nature,
including loss of rent insurance (capped at 18 months cover),
but excluding from this Paragraph any amount which is:
(i) (ALREADY INCLUDED) already included by virtue of another Paragraph
of this definition;
(ii) (OTHERWISE PAYABLE) otherwise payable by the Lessee pursuant to the
provisions of this Lease;
(iii) (TAX) Land Tax, income tax and capital gains tax of any nature; or
(iv) (PAYABLE BY THE LESSOR) otherwise payable by the Lessor with respect
to its obligations under this Lease.
PAYMENT means:
(a) the amount of any monetary consideration (other than a GST Amount
payable under this clause); and
(b) the GST Exclusive Market Value of any non-monetary consideration,
paid or provided by the Lessee for this Lease or by the Lessor or the
Lessee for any other Supply made under or in connection with this Lease
and includes:
(c) any Rent or contribution to Outgoings; and
(d) any amount payable by way of indemnity, reimbursement, compensation
or damages.
PERMITTED USE means the use of the Premises specified in Item 11
PREMISES means part of the Land being the buildings and other improvements
specified in Item 4, and includes any of the Lessor's Fixtures from time
to time in or on them.
PROPOSED WORK includes any proposed sign, work, alteration, addition or
installation in or to the Premises, the Lessor's Fixtures and/or to the
existing Lessee's Fitout and Fittings by the Lessee and/or by the Lessee's
Employees.
RELATED BODY CORPORATE has the same meaning as given to that term in the
Corporations Act 2001.
RENT means the rent specified in Item 9 as varied from time to time in
accordance with this Lease.
REQUIREMENT includes any notice, order, direction, stipulation or similar
notification received from or given by any Authority pursuant to and
enforceable under any Law (including Environmental Law), whether in
writing or otherwise, and regardless of to whom it is addressed or
directed.
REVIEW DATE means a date on which either a CPI Review or a Market Review
is to occur as set out in Item 10.
SERVICES means electricity, gas, sewerage, water and telephone services.
SUBSTANCE includes:
(a) any form of organic or chemical matter whether solid, liquid or gas;
and
(b) radiation, radioactivity and magnetic activity.
TAX ACT means the Income Tax Assessment Act 1936 (Cth) and/or the Income
Tax Assessment Act 1997 (Cth) (as the case may require).
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TERMINATING DATE means:
(a) the date specified in Item 7;
(b) any earlier date on which this Lease is determined;
(c) the date of expiration or earlier termination of the Further Term
or, if more than one, the last Further Term; or
(d) the end of any period of holding over under clause 3.3,
as appropriate.
TERMINATION PAYMENT means:
(a) in respect of clause 7.1(e)(i)(A), the net present value of the
aggregate of:
(i) the Rent and the Lessee's Proportion of Outgoings payable for
the balance of the Term calculated from the date of
termination; and
(ii) the cost of compliance with the Lessee's obligations in clause
13,
using the 10 year Commonwealth of Australia Government bond interest
rate plus 115 basis points; and
(b) in respect of clauses 7.1(e)(i)(B) and 7.1(e)(ii), the net present
value of the aggregate of:
(i) the Rent and the Lessee's Proportion of Outgoings payable for
the balance of the Term with respect to the proportionate area
of the Premises surrendered calculated from the date of the
surrender; and
(ii) the cost of compliance with the Lessee's obligations in clause
13,
using the 10 year Commonwealth of Australia Government bond interest
rate plus 115 basis points.
UMPIRE means a person who:
(a) is at the relevant time a Valuer;
(b) is appointed under clause 4.5;
(c) accepts his appointment in writing; and
(d) undertakes to hand down his determination of the Rent within 20
Business Days after being instructed to proceed.
VALUER means a person who:
(a) is a full member of the Australian Institute and has been for the
last 5 years;
(b) holds a licence to practise as a valuer of premises of the kind
leased by this Lease;
(c) is active in the relevant market at the time of his appointment;
(d) has at least 3 years experience in valuing premises of the kind
leased by this Lease; and
(e) undertakes to act promptly in accordance with the requirements of
this Lease.
1.2 GENERAL
Headings are for convenience only and do not affect interpretation. The
following rules of interpretation apply unless the context requires
otherwise.
(a) (PLURALS) The singular includes the plural and conversely.
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(b) (GENDER) A gender includes all genders.
(c) (OTHER GRAMMATICAL FORMS) Where a word or phrase is defined, its
other grammatical forms have a corresponding meaning.
(d) (PERSON) A reference to a person, corporation, trust, partnership,
unincorporated body or other entity includes any of them.
(e) (CLAUSE) "clause", "Paragraph", "Schedule" or "Annexure" refers to
this Lease and "Item" refers to the Schedule of Terms forming part
of this Lease.
(f) (SUCCESSORS AND ASSIGNS) A reference to any party to this Lease or
any other agreement or document includes the party's successors and
substitutes or assigns.
(g) (JOINT AND SEVERAL OBLIGATIONS) A reference to a right or obligation
of any two or more persons confers that right, or imposes that
obligation, as the case may be, jointly and severally.
(h) (EXTRINSIC TERMS) Subject to the provisions of any written material
to which the Lessor and the Lessee are parties, the Lessor and the
Lessee agree that:
(i) (WHOLE AGREEMENT) the terms contained in this Lease cover and
comprise the whole of the agreement in respect of the Premises
between the Lessor and the Lessee; and
(ii) (NO COLLATERAL AGREEMENT) no further terms, whether in respect
of the Premises or otherwise, shall be implied or arise
between the Lessor and the Lessee by way of collateral or
other agreement made by or on behalf of the Lessor or by or on
behalf of the Lessee on or before or after the execution of
this Lease, and any implication or collateral or other
agreement is excluded and negatived.
(i) (AMENDMENTS AND VARIATIONS) A reference to an agreement or document
(including this Lease) is to the agreement or document as amended,
novated, supplemented, varied or replaced from time to time, except
to the extent prohibited by this Lease.
(j) (LEGISLATION) A reference to legislation or to a provision of
legislation includes a modification, re-enactment of or substitution
for it and a regulation or statutory instrument issued under it.
(k) (AUSTRALIAN CURRENCY) A reference to "dollars" or "$" is to
Australian currency.
(l) (SCHEDULES AND ANNEXURES) Each schedule of/or annexure to this Lease
forms part of it.
(m) (CONDUCT) A reference to conduct includes any omission, statement or
undertaking, whether or not in writing.
(n) (WRITING) A reference to "writing" includes a facsimile transmission
and any means of reproducing words in a tangible and permanently
visible form.
(o) (EVENT OF DEFAULT) An Event of Default "subsists" until it has been
waived by or remedied to the reasonable satisfaction of the Lessor.
(p) (INCLUDES) A reference to "includes" or "including" means "includes,
without limitation," or "including, without limitation,"
respectively.
(q) (WHOLE) Reference to the whole includes part.
(r) (DUE AND PUNCTUAL) All obligations are taken to be required to be
performed duly and punctually.
(s) (PERMIT OR OMIT) Words importing "do" include do, permit or omit, or
cause to be done or omitted.
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(t) (BODIES AND AUTHORITIES)
(i) (SUCCESSORS) Where a reference is made to any person, body or
Authority that reference, if the person, body or Authority has
ceased to exist, will be to the person, body or Authority as
then serves substantially the same objects as that person,
body or Authority.
(ii) (PRESIDENT) Any reference to the President of that person,
body or Authority, in the absence of a President, will be read
as a reference to the senior officer for the time being of the
person, body or Authority or any other person fulfilling the
duties of President.
(u) (CONSENT OF LESSOR) Unless stated otherwise in this Lease, where the
Lessor has a discretion or its consent or approval is required for
anything the Lessor:
(i) shall not unreasonably withhold, delay or condition its
decision, consent or approval; and
(ii) must exercise its discretion acting reasonably.
(v) (RELEVANT DATE) Where the day or last day for doing anything or on
which an entitlement is due to arise is not a Business Day that day
or last day will be the immediately following Business Day.
(W) (MONTH) Month means calendar month.
(x) (AREAS) Unless otherwise stated in this Lease or the context
otherwise requires, where the area whether gross or net and whether
the whole or part of the Land is to be calculated or measured for
the purposes of this Lease, those calculations and measurements
shall be in accordance with the Method of Measurement.
(y) (THIRD PARTIES) Any clause which requires that a third party act or
refrain from acting will be read (where the context permits) that
the party to this Lease appointing or otherwise having control of
that third party shall cause or procure that third party to act or
refrain from acting.
2. EXCLUSION OF STATUTORY PROVISIONS
2.1 RELEVANT ACTS
To the extent permitted by Law or as may be contradicted by this Lease,
the covenants, powers and provisions (if any) implied in leases by virtue
of any Law are expressly negatived.
3. TERM
3.1 TERM OF LEASE
Subject to this Lease the Lessor leases to the Lessee and the Lessee takes
a lease of the Premises for the Term.
3.2 OPTION OF RENEWAL
(a) (GRANT OF FURTHER LEASE) If:
(i) (FURTHER TERM) a Further Term is specified in Item 8;
(ii) (LESSEE GIVES NOTICE) the Lessee notifies the Lessor not more
than 12 months nor less than 9 months before the Terminating
Date that it requires a further lease for the Further Term;
and
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(iii) (NO DEFAULT) at the date of that notice and at the Terminating
Date there is no subsisting Event of Default by the Lessee of
which the Lessee has been notified by the Lessor and:
(A) (IF CAPABLE OF REMEDY) which has not been remedied to
the reasonable satisfaction of the Lessor within the
time specified in a notice given under clause 12.1 or
waived in writing by the Lessor; or
(B) (IF NOT CAPABLE OF REMEDY) if not capable of remedy, for
which the Lessee has not paid the Lessor reasonable
compensation,
the Lessor shall grant to the Lessee a lease of the Premises for the
Further Term commencing on the day after the Terminating Date.
(b) (CONDITIONS OF FURTHER LEASE) That lease for a Further Term will be
on the same conditions as this Lease except that:
(i) (TERM) the term to be specified in Item 5 of the lease for the
Further Term will be the relevant period specified in Item 8;
(ii) (COMMENCING DATE) the date to be specified in Item 6 of the
lease for the Further Term will be the day after the
Terminating Date of the immediately preceding Term;
(iii) (TERMINATING DATE) the date to be specified in Item 7 of the
lease for each Further Term will be the last day of the term
specified in Item 8 calculated from the commencing date of the
lease for that Further Term determined under Paragraph (ii);
(iv) (RENT) the amount of Rent to be specified in Item 9 of the
lease for the Further Term will be as agreed under clause
3.2(c) or if no agreement is reached under that clause as
determined under clauses 4.4, 4.5 and 4.6 as if the commencing
date of the lease for the Further Term was a Market Review
Date;
(v) (REVIEW DATES) the Review Dates specified in Item 10 shall be
omitted and replaced with the Review Dates specified in Item
13;
(vi) (FURTHER OPTIONS) the number of Further Terms specified in
Item 8 shall be reduced by one from the number specified in
Item 8 of this Lease; and
(vii) (LAST FURTHER LEASE) if in any lease for the Further Term the
number of Further Terms specified in Item 8 would by the
operation of Paragraph (vi) be zero, then Item 13 and this
clause 3.2 will not be included in that further lease so that
the last further lease will end on the last day of the last
occurring Further Term specified in Item 8 of this Lease.
(c) (EARLY DETERMINATION OF MARKET RENT)
(i) If the Lessee wishes to know the Rent for the first year of
the Further Term prior to exercising its option for a Further
Term, the Lessee may give notice to the Lessor seeking a
determination of the Market Rent for the Further Term (such
notice being given no earlier than 15 months and no later than
12 months prior to the Terminating Date of the Lease).
(ii) The Lessor must give the Lessee a notice with the Lessor's
assessment of the Market Rent to apply in the first year of
the Further Term within 10 Business Days after the Lessee
gives a notice under clause 3.2(c)(i).
(iii) Upon receipt of the Lessor's assessment of Market Rent under
clause 3.2(c)(ii), the parties agree to negotiate in good
faith to agree upon the Market Rent to apply in the first year
of the Further
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Term for a period of up to 3 months after the Lessor's notice
of assessment of Market Rent is received by the Lessee.
(iv) If the parties fail to reach agreement under clause
3.2(c)(iii), clause 3.2(b)(iv) continues to apply.
3.3 HOLDING OVER
If the Lessor does not indicate refusal to the Lessee continuing to occupy
the Premises beyond the Terminating Date (otherwise than under a lease for
a Further Term) then:
(a) (MONTHLY TENANCY) the Lessee does so as a monthly tenant and shall
pay Rent and Outgoings:
(i) monthly in advance, the first payment to be made on the day
following the Terminating Date; and
(ii) equal to one-twelfth of the annual rate of Rent and Outgoings
payable immediately prior to the Terminating Date;
(b) (DETERMINATION) the monthly tenancy is determinable at any time by
either the Lessor or the Lessee by one month's notice given to the
other, to end on any date, but otherwise the tenancy will continue
on the conditions of this Lease as far as they may apply to a
monthly tenancy.
4. RENT
4.1 PAYMENT OF RENT
(a) (RENT) The Lessee shall pay Rent to the Lessor at the relevant rate
from time to time:
(i) (NO DEMAND) without demand;
(ii) (NO DEDUCTION) without any deduction, abatement, counterclaim
or right of set-off except to the extent that it is expressly
provided for in this Lease; and (iii) (INSTALMENTS) by equal
monthly instalments (and proportionately for any part of a
month) in advance on the first Business Day of each month.
(b) (AS DIRECTED BY LESSOR) All instalments of Rent shall be paid to the
place and in the manner directed by the Lessor from time to time
provided at least 10 Business Days notice of any change in the place
or manner of payment is given.
4.2 RENT COMMENCEMENT
The first instalment of Rent shall be paid on the Commencing Date.
4.3 DELETED
4.4 MARKET REVIEW OF RENT
Should the Lessor wish to review the Rent as at a Market Review Date, then
not earlier than 3 months before and not later than 3 months after the
Market Review Date (time being of the essence) the Lessor may notify the
Lessee of the Lessor's assessment of the Market Rent for the Premises at
the particular Market Review Date. This assessment shall take into account
the criteria contained in clause 4.5(g) which apply at that particular
Market Review Date and, if applicable, clause 4.6.
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4.5 LESSEE'S DISPUTE OF RENT
If the Lessee disagrees with the Lessor's assessment of the Market Rent
and the Lessor and the Lessee are unable to agree on the Market Rent to
apply from a particular Market Review Date then the following procedure
applies.
(a) (LESSEE TO GIVE NOTICE) The Lessee shall within 30 Business Days of
being notified of the Lessor's assessment of the Market Rent (time
being of the essence) notify the Lessor that the Lessee requires the
Market Rent to be determined in accordance with this clause 4.5.
(b) (i) (NOMINATION OF VALUERS) Each of the Lessee and the Lessor
shall, within 10 Business Days of service of the Lessee's
notice under clause 4.5(a), by notice nominate a Valuer to the
other and shall formally appoint that Valuer.
(ii) (NOMINATION OF UMPIRE) Where two Valuers have been nominated
they shall, within 5 Business Days of the date of the later
nomination and prior to making their determination as to the
Market Rent for the Premises, agree upon and nominate an
Umpire to determine any disagreement which may arise between
them.
(iii) (FAILURE TO AGREE) If the Valuers cannot agree on or fail to
nominate an Umpire within 5 Business Days of the date of the
later nomination then either Valuer, the Lessor or the Lessee
may request the President of the Australian Institute to
nominate the Umpire.
(c) (VALUER'S DETERMINATION) Subject to clauses 4.5(d), (e) and (f), the
nominated Valuers shall within 20 Business Days of the later
nomination jointly determine the Market Rent of the Premises having
regard to clause 4.5(g) as at that particular Market Review Date.
(d) (CONSEQUENCES OF LESSEE'S FAILURE) If the Lessee fails to nominate a
Valuer in accordance with clause 4.5(b) within the time required:
(i) (DETERMINATION BY LESSOR'S VALUER) the determination of the
Market Rent shall be made by the Lessor's Valuer within 20
Business Days after being nominated, and his determination
will be final and binding on the parties as if he had been
appointed by Consent; and
(ii) (COSTS) the Costs of the Lessor's Valuer's determination shall
be apportioned equally between the Lessor and Lessee.
(e) (CONSEQUENCES OF LESSOR'S FAILURE TO NOMINATE VALUER) If the Lessee
nominates a Valuer under clause 4.5(b) within the time required, but
the Lessor fails to do so:
(i) (DETERMINATION BY LESSEE'S VALUER) the determination of the
Market Rent shall be made by the Lessee's Valuer within 20
Business Days after being nominated, and his determination
will be final and binding on the parties as if he had been
appointed by Consent; and
(ii) (COSTS) the Costs of the Lessee's Valuer's determination shall
be apportioned equally between the Lessor and Lessee.
(f) (i) (PROCEDURE IN EVENT OF DISAGREEMENT BETWEEN VALUERS) Should
the Valuers be unable to agree on the Market Rent for the
Premises within the time required then the Market Rent shall
be determined by the Umpire under clause 4.5(f)(iii).
(ii) (PROCEDURE WHERE VALUER FAILS TO ASSESS) If either or both of
the Valuers for any reason fail to assess the Market Rent
within the time required for them to make a determination,
then either Valuer, the Lessor or the Lessee may request the
Umpire to determine the Market Rent.
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(iii) (UMPIRE'S DETERMINATION) If it becomes necessary for the
Umpire to determine the Market Rent, his determination will be
final and binding on the parties and:
(A) (EVIDENCE OF VALUERS) in making his or her determination
the Umpire shall have regard to any evidence submitted
by the Valuers as to their assessments of the Market
Rent;
(B) (WRITTEN DETERMINATION) the Umpire shall give his
determination and the reason for it in writing to the
Lessor and the Lessee within 20 Business Days of request
for it in accordance with this Lease by the Lessor, the
Lessee or the Valuers (or any of them); and
(C) (UMPIRE'S MAXIMUM) the Umpire's determination shall not
be more than the highest Market Rent as assessed by
either Valuer under this clause 4.5.
(g) (MARKET RENT CRITERIA) In determining the Market Rent each Valuer
(including the Umpire) shall be taken to be acting as an expert and
not as an arbitrator, and shall determine the Market Rent for the
Premises as at the particular Market Review Date having regard to
the terms of this Lease and shall:
(i) (EXCLUSIONS) disregard:
(A) (GOODWILL) the value of any goodwill of the Lessee's
Business, the Lessee's Fitout and Fittings and any other
interest in the Premises created by this Lease; and
(B) (MONEY FROM OCCUPATIONAL ARRANGEMENT) any sublease or
other sub-tenancy agreement or occupational arrangement
in respect of any part of the Land and any rental, fees
or money payable under any of them; and
(ii) (CONSIDERATIONS) have regard to:
(A) (LENGTH OF TERM) the length of the whole of the Term,
disregarding the fact that part of the Term will have
elapsed at the Market Review Date, and have regard to
the provisions of any options for a Further Term;
(B) (COMPARABLE PREMISES AND LOCATIONS) the rates of rent
payable for comparable premises in comparable locations;
(C) (ALL COVENANTS OBSERVED) all covenants on the part of
the Lessee and the Lessor in this Lease and assume that
all covenants on the part of the Lessee have been fully
performed and observed on time; and
(D) (OUTGOINGS) the Lessee's obligation to pay the Lessee's
Proportion of Outgoings; and
(E) (RENT REVIEW) the frequency of market and other Rent
reviews; and
(iii) (ASSUMPTIONS) assume that:
(A) the Premises are available for use for the primary
purpose for which the Premises may be used in accordance
with this Lease;
(B) there has been no fair wear and tear of the Premises
since the Effective Date; and
(C) any buildings which have been removed pursuant to clause
7.11(d) have not been removed.
(h) (COSTS OF VALUERS) The Costs incurred in the determination of the
Market Rent under this clause 4.5 shall be borne by the Lessor and
by the Lessee in the following manner:
(i) (VALUER) subject to clauses 4.5(d)(ii) and (e)(ii), for the
Costs of each Valuer appointed by a party, by the party who
appoints that Valuer; and
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(ii) (UMPIRE) for the Costs of the Umpire, by the parties equally.
(i) (DATE OF EFFECT OF DETERMINATION OF MARKET RENT) Subject to clauses
4.5(j) and 4.6, any variation in the Rent resulting from a
determination of the Market Rent under clause 4.4 and/or 4.5 (as
appropriate) will be effective on and from that particular Market
Review Date.
(j) (PAYMENT OF RENT PENDING REVIEW) Where there is a dispute as to the
Market Rent under clause 4.4 after the relevant Market Review Date
or the revised Rent is not known at a Market Review Date then the
amount of Rent payable by the Lessee from the Market Review Date
pending the resolution of that dispute or the determination of the
Market Rent shall be the Rent payable immediately before the
relevant Market Review Date.
(k) (ADJUSTMENT) On resolution of the dispute or the Market Rent being
determined, if the Rent payable for the period commencing on the
Market Review Date is determined to be greater than that paid by the
Lessee since the Market Review Date, then the Lessee shall pay the
deficiency to the Lessor within 10 Business Days of the date of
determination of the Market Rent under clause 4.4 or the
determination of the Market Rent by the Valuers or by the Umpire
under this clause 4.5 (as the case may be).
4.6 MAXIMUM INCREASE ON REVIEW
Despite any other provision of this Lease the annual Rent payable from any
Review Date following a review of the Rent under clause 4.4 (and, if
applicable, clause 4.5) shall in no circumstances be:
(a) less than the annual Rent payable in the Lease Year immediately
prior to that Review Date; or
(b) in the case of a Market Review (other than at the Commencing Date of
a Further Term):
(i) greater than the Rent payable in the Lease Year immediately
prior to the Market Review Date plus 10%; or
(ii) less than the annual Rent determined under clause 4.7.
4.7 FIXED REVIEW
On each Fixed Review Date, the Rent shall increase to 103% of the Rent
payable immediately prior to that Fixed Review Date.
5. OUTGOINGS
5.1 SERVICES
(a) (METERS) The Lessor shall ensure that all Services supplied to the
Premises are separately metered.
(b) (COSTS) The Lessee shall pay all Costs for all Services supplied to
the Premises (but with respect to water, the obligation under this
clause 5.1(b) is limited to water usage and consumption charges).
5.2 CLEANING
The Lessee shall at its own Cost ensure that the Premises are kept clean.
5.3 OUTGOINGS
The Lessee shall pay to the Lessor for each Lease Year an amount equal to
the Lessee's Proportion of the Outgoings in accordance with this clause 5.
This obligation shall not extend to any fines, penalties or interest on
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the Outgoings which arise because of the Lessor's delay in payment or the
Lessor's delay in providing relevant invoices and accounts to the Lessee
for payment.
5.4 LESSOR'S ESTIMATE
The Lessor may:
(a) (NOTIFICATION OF ESTIMATE) before or during each Lease Year notify
the Lessee of the Lessor's reasonable estimate of the Lessee's
Proportion of Outgoings for that Lease Year; and
(b) (ADJUSTMENT OF ESTIMATE) from time to time during that Lease Year by
notice to the Lessee adjust the reasonable estimate of the Lessee's
Proportion of Outgoings as may be appropriate to take account of
changes in any of the Outgoings.
5.5 PAYMENTS ON ACCOUNT
The Lessee shall pay on account the amount of the estimates of the
Lessee's Proportion of Outgoings provided for in clause 5.4 by equal
monthly instalments in advance on the same days and in the same manner as
the Lessee is required to pay Rent.
5.6 YEARLY ADJUSTMENT
(a) (LESSOR'S NOTICE) As soon as practicable after the end of each Lease
Year the Lessor shall give to the Lessee a notice with reasonable
details and reasonable evidence of the Outgoings for that Lease
Year.
(b) (ADJUSTMENT OF PAYMENTS ON ACCOUNT) The Lessee shall within 10
Business Days after the date of the notice referred to in clause
5.6(a) pay to the Lessor or the Lessor shall pay to the Lessee (as
appropriate) the difference between the amount paid on account of
the Lessee's Proportion of Outgoings during that Lease Year and the
amount actually payable in respect of it by the Lessee, so that the
Lessee shall have paid the correct amount of the Lessee's Proportion
of Outgoings for that Lease Year.
(c) (AUDITED STATEMENT) If the Lessee disagrees with the details,
amounts or calculations contained in the notice referred to in
clause 5.6(a), the Lessee may require the Lessor to give the Lessee
an audited statement of the Outgoings for that Lease Year prepared
by a chartered accountant reasonably approved by the Lessee (or
failing approval within 5 Business Days of the request for the
statement, selected by the President of the Institute of Chartered
Accountants at the request of either the Lessor or the Lessee). The
Lessor shall have 20 Business Days after a request from the Lessee
within which to provide the statement.
(d) (READJUSTMENT) If the amounts shown in the audited statement are
different from the amounts shown in the Lessor's notice given under
clause 5.6(b), the amount of Outgoings shall be readjusted so that
the Lessee shall have paid the correct amount of the Lessee's
Proportion of Outgoings for that Lease Year.
5.7 GST
(a) (GENERAL) Capitalised expressions which are not defined in this
clause but which have a defined meaning in the GST Law have the same
meaning in this clause.
(b) (PAYMENT OF GST) The parties agree that:
(i) all Payments have been set or determined without regard to the
impact of GST;
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(ii) if the whole or any part of a Payment is the consideration for
a Taxable Supply for which the payee is liable for GST, the
GST Amount in respect of the Payment must be paid to the payee
as an additional amount, either concurrently with the Payment
or as otherwise agreed in writing; and
(iii) the payee will provide to the payer a Tax Invoice.
(c) (NET OF CREDITS) Despite any other provision of this lease, if a
Payment due under this lease (including any contribution to
Outgoings) is a reimbursement or indemnification by one party of an
expense, loss or liability incurred or to be incurred by the other
party, the Payment shall exclude any part of the amount to be
reimbursed or indemnified for which the other party can claim an
Input Tax Credit.
(d) (TPA) Each party will comply with its obligations under the Trade
Practices Act 1974 in respect of any Payment to which it is entitled
under this lease.
6. USE OF PREMISES
6.1 PERMITTED USE
The Lessee shall:
(a) (LESSEE'S BUSINESS) not without the Lessor's Consent use the
Premises for any purpose other than those specified in Item 11;
(b) (NON RESIDENCE) not use the Premises as a residence;
(c) (NO ANIMALS OR BIRDS) not keep any animals or birds in the Premises;
and
(d) (PESTS AND VERMIN) at its own Cost keep the Premises free and clear
of pests, insects and vermin.
6.2 OVERLOADING
The Lessee shall not during the Term place or store any heavy articles or
materials on any of the floors of, the Premises or the Building in a
manner significantly differently from that at the Effective Date, without
the Lessor's consent.
6.3 OTHER ACTIVITIES BY LESSEE
The Lessee shall:
(a) (APPURTENANCES) not use the Appurtenances in the Premises for any
purpose other than those for which they were designed, and shall not
place in the Appurtenances any substance which they were not
designed to receive;
(b) (AIR-CONDITIONING AND FIRE ALARM EQUIPMENT) where any
air-conditioning or fire alarm system of the Lessor is installed in
the Premises, not interfere (other than in accordance with clause
7.1) with that system nor obstruct or hinder access to it;
(c) (NOT ACCUMULATE RUBBISH) keep the Premises reasonably clean;
(d) (NOT THROW ITEMS FROM WINDOWS) not throw anything out of the windows
or doors of the Building or down the lift shafts, passages or
skylights or into the light areas of the Building (if they exist),
or deposit waste paper or rubbish anywhere except in proper
receptacles, or place anything on any sill, ledge or other similar
part of the exterior of the Building; and
(e) (INFECTIOUS DISEASES) if any infectious illness occurs in the
Premises:
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(i) (NOTIFY LESSOR) immediately notify the Lessor and all proper
Authorities; and
(ii) (FUMIGATE) where that illness is confined to the Premises, at
its Cost thoroughly fumigate and disinfect the Premises to the
satisfaction of the Lessor and all relevant Authorities.
6.4 FOR SALE/TO LET
The Lessor is entitled:
(a) (ADVERTISING FOR LEASE) where the Lessee has not given notice under
clause 3.2(a)(ii), but only during the last three months of the
Term, to place advertisements and signs on the part(s) of the
Premises as are reasonably appropriate to indicate that the Premises
are available for lease;
(b) (INSPECTION BY PROSPECTIVE TENANTS) subject to the same limitations
as in Paragraph (a), at all reasonable times and on reasonable
notice (but where possible outside the usual trading hours of the
Lessee) to show prospective tenants through the Premises;
(c) (ADVERTISING FOR SALE) to place advertisements and signs on the
part(s) of the Premises as it reasonably considers appropriate to
indicate that the Premises are for sale; and
(d) (INSPECTION BY PROSPECTIVE PURCHASERS) at all reasonable times and
on reasonable notice (but where possible outside the usual trading
hours of the Lessee), to show prospective purchasers through the
Premises.
The Lessor may only exercise its rights under this clause 6.4 in the
presence of a representative of the Lessee after signing and/or procuring
signing by the Lessor's invitees of such confidentiality agreements as the
Lessee may reasonable require. In exercise of those rights the Lessor must
minimise any inconvenience or disruption to the Lessee or the Lessee's
Business.
7. MAINTENANCE, REPAIRS, ALTERATIONS AND ADDITIONS
7.1 REPAIRING OBLIGATIONS
(a) (GENERAL) The Lessee:
(i) must, during the Term and any extension or Further Term or any
holding over, keep the Premises in good repair and condition
including any structural or capital maintenance, replacement
or repair having regard to their state of repair and condition
at the Effective Date; and
(ii) acknowledges and agrees that subject to clauses 5.4, 5.6, 9.2,
11, 12.4, 15.2 and 15.5(b) and (c), the Lessor is not
responsible for any costs and expenses in relation to the
Premises during the Term and any extension or Further Term or
any holding over.
(b) (EXCLUSIONS) Despite clause 7.1, the Lessee has no obligation to
carry out any works which relate to:
(i) (FAIR WEAR AND TEAR) fair wear and tear;
(ii) (INSURANCE) damage to the Premises caused by fire, storm or
tempest or any other risk covered by any insurance taken out
by the Lessor in respect of the Premises (other than where any
insurance money is irrecoverable through the act, omission,
neglect, default or misconduct of the Lessee or the Lessee's
Employees);
(iii) (LESSOR'S ACT OR OMISSION) patent or latent damage to the
Premises caused or contributed to by any wilful or negligent
act or omission of the Lessor or its Employees;
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(iv) (NON-MAKE GOOD BUILDING) any works to the Non Make Good
Buildings, except to the extent required by clause 7.1(d) and
clause 13.
(c) (STRUCTURAL REPAIR) Subject to clauses 15.2 and 15.5(c), nothing in
this Lease requires the Lessor to carry out any structural or
capital maintenance, replacement or repair except where rendered
necessary by any wilful or negligent act or omission of the Lessor
or the Lessor's Employees, which maintenance, replacement or repair
the Lessor must attend to promptly after notice from the Lessee.
(d) (COMPLIANCE WITH LAWS AND REQUIREMENTS) The Lessee shall, during the
Term, subject to clauses 7.1(b)(i), (ii) and (iii), 7.1(e), 7.11,
15.2 and 15.5(c), comply with any Law or Requirement affecting the
Premises (including any underground storage tanks and any
Environmental contamination associated with them), the Lessee's use
of the Premises and the Lessee's Fitout and Fittings, except that
the Lessor must, at its Cost, promptly comply with these Laws or
Requirements if:
(i) the Lessor or the Lessor's Employees have taken action or
refrained from taking action that directly or indirectly has a
material effect in causing the Law or Requirement to apply, be
issued or enforced;
(ii) the Lessor or the Lessor's Employees have taken action or
refrained from taking action that directly or indirectly has a
material effect in causing the Law or Requirement to apply, be
issued or enforced by doing works on the Land or any adjoining
land; or
(iii) the Lessor or the Lessor's Employees have taken action or
refrained from taking action that directly or indirectly has a
material effect in causing the Law or Requirement to apply, be
issued or enforced because of any subdivision,
re-configuration of other dealing with the Land.
However, the Lessor is not obliged to comply with the Law or
Requirement where the Law or Requirement applies, is issued or
enforced solely as a result of the Lessor or the Lessor's Employees
making any applications to Authorities with respect to redevelopment
of that part of the Land which is not or will no longer be included
in the Premises as anticipated by the terms of this Lease or because
of the terms of any consents, approvals or permits granted by those
Authorities in response to those applications.
(E) (OPTIONS TO TERMINATE OR SURRENDER)
(i) If there is a change in Law or a Requirement requiring the
demolition or substantial upgrade of Buildings on the
Premises, then the Lessee may at its option:
(A) terminate this Lease by giving notice to the Lessor
together with the Termination Payment; or
(B) partially surrender this Lease by giving to the Lessor a
surrender of lease in registrable form with respect to
the relevant part of the Premises (and any ancillary
areas) affected by the change in Law or Requirement
together with the Termination Payment. Unless access can
be provided to the surrendered area in accordance with
clause 7.1(e)(iv)(B), in determining the area to be
partially surrendered the Lessee must ensure that the
surrendered area is not landlocked.
(ii) At any time during the Term the Lessee may at its option and
at its Cost:
(A) partially surrender this Lease by giving to the Lessor a
surrender of lease in registrable form with respect to
any Non-Make Good Buildings together with the
Termination Payment; and
(B) in determining the area to be partially surrendered the
Lessee must:
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(1) ensure that there is 6 metres clearance from the
perimeter of the surrendered area to the nearest
building; and
(2) unless access can be provided to the surrendered
area in accordance with clause 7.1(e)(iv)(B)
ensure that the surrendered area is not
landlocked.
(iii) Neither party will have any further obligation to the other
under this Lease following the date of service on the Lessor
of the termination notice or partial surrender of lease and
the relevant Termination Payment under clause 7.1(e)(i) or
7.1(e)(ii) (but limited with respect to the area of the
Premises surrendered in the case of clauses 7.1(e)(i)(B) and
7.1(e)(ii)), except for any pre-existing breach.
(iv) If clause 7.1(e)(i)(B) or 7.1(e)(ii) applies:
(A) the Rent and Outgoings under this Lease shall reduce
proportionately by reference to the area of the Premises
surrendered (with any dispute to be determined under
clause 14) with effect from the date of service on the
Lessor of the notice of termination or partial surrender
of lease and the relevant Termination Payment (as the
case may be);
(B) the Lessee must permit the Lessor and persons authorised
by it to have a reasonable means of access through the
Premises to the surrendered area, so long as that means
of access and the use of it do not have a material
adverse impact on the Lessee's use or operation of the
Premises; and
(C) the definition of Outgoings will be amended to include
reasonable security costs actually incurred by the
Lessor arising from multiple occupancies of the Land.
7.2 LESSOR'S RIGHT OF INSPECTION
The Lessor may in the presence of a responsible officer of the Lessee at
all reasonable times on giving to the Lessee reasonable notice enter the
Premises and view the state of repair and condition.
7.3 ENFORCEMENT OF REPAIRING OBLIGATIONS
The Lessor may:
(a) (SERVE NOTICE) notify the Lessee of any failure by the Lessee to
carry out within the time allowed by this Lease any repair,
replacement or cleaning of the Premises which the Lessee is obliged
to do under this Lease; and/or
(b) (CARRY OUT REPAIR) require the Lessee to carry out that repair,
replacement or cleaning within a reasonable time. If the Lessee
fails to do so within a reasonable time having regard to the nature
of the defect complained of and the length of time reasonably
required to remedy that defect, the Lessor may elect to carry out
that repair, replacement or cleaning at the Lessee's Cost (but
wherever possible outside the usual operating hours of the Lessee).
The Lessee shall on demand reimburse the Lessor for those Costs. The
Lessor in exercise of its rights under this clause 7.3(b) shall:
(i) sign and/or procure signing by the Lessor's invitees of such
confidentiality agreements as the Lessee may reasonably
require;
(ii) endeavour not to cause any undue inconvenience to the Lessee
and the conduct of the Lessee's Business; and
(iii) make good any damage caused to the Premises without delay.
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7.4 LESSOR MAY ENTER TO REPAIR, DECONTAMINATE
If:
(a) (LESSOR WISHES TO REPAIR) the Lessor wishes to carry out any repairs
to the Premises considered necessary or desirable by the Lessor or
in relation to anything which the Lessor is obliged to do under this
Lease; or
(b) (REQUIREMENTS OF AUTHORITY) any Authority requires any repair or
work to be undertaken on the Premises (including any
decontamination, remediation or other cleanup) which the Lessor must
or in its absolute discretion elects to do and for which the Lessee
is not liable under this Lease,
then the Lessor, its architects, workmen and others authorised by the
Lessor may at all reasonable times on giving to the Lessee reasonable
notice enter and carry out any of those works and repairs. In so doing the
Lessor shall:
(c) sign and/or procure signing by the Lessor's Employees of such
confidentiality agreements as the Lessee may reasonably require;
(d) endeavour not to cause undue inconvenience to the Lessee and the
conduct of the Lessee's Business, and
(e) make good any damage caused to the Premises without delay.
The Lessor shall indemnify the Lessee on demand in respect of all Claims
incurred or suffered by the Lessee as a consequence of the carrying out of
works under this clause 7.4.
7.5 DELETED
7.6 ALTERATIONS TO PREMISES
(a) (NO CONSENT REQUIRED) The Lessee is entitled to carry out any
Proposed Work on or to the Premises without the need to seek or
obtain Lessor's Consent except that the Lessee must obtain the
Lessor's Consent prior to carrying out any structural Proposed
Works:
(i) on or to any Make Good Buildings; or
(ii) which materially increase the footprint of the Non-Make Good
Buildings,
such Consent not to be unreasonably withheld or delayed.
(b) (DEEMED CONSENT) If the Lessor does not respond conclusively to a
request for Consent within 20 Business Days of the written request
being served on it, the Lessor is deemed to have Consented to the
relevant request.
(c) (APPROVALS) The Lessee shall obtain all necessary approvals or
permits before carrying out the Proposed Work.
(d) (LESSOR TO ASSIST) The Lessor shall at the Lessee's Cost without
delay do all acts and sign all documents to enable the Lessee to
obtain the approvals and permits referred to in clause 7.6(c) and
otherwise to enable the Lessee to carry out any Proposed Work in
accordance with this Lease.
(e) (SPECIFIC PROPOSED WORKS) Despite clause 7.6(a), the Lessor gives
its consent to Proposed Work which relates to installation and
removal of the Lessee's plant and equipment, including bolting or
affixing to the floors of the Premises, subject to clauses 6.2 and
13.
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(f) (CONDITION) The Lessor, acting reasonably, may require the Lessee to
carry out remediation works as a condition of the Lessor's Consent
to Proposed Work where Consent is required under clause 7.6(a) if
the Proposed Works will, if implemented:
(i) trigger a Requirement to carry out those remediation works; or
(ii) render the Premises unsuitable for the Permitted Use unless
the remediation works are carried out with the Proposed Work.
7.7 NOTICE TO LESSOR OF DAMAGE, ACCIDENT ETC.
The Lessee shall notify the Lessor of any:
(a) (ACCIDENT) accident to or in the Premises; and/or
(b) (NOTICE) circumstances reasonably likely to cause any damage or
injury to occur within the Premises,
of which the Lessee has actual notice.
7.8 MAINTENANCE CONTRACTS
The Lessee shall at its own Cost enter into maintenance contracts for the
fire fighting services and equipment servicing the Premises with
contractors approved by the Lessee and in a form and on terms (whether as
to cost, standard of service or otherwise) reasonably acceptable to the
Lessee.
7.9 DELETED
7.10 LESSEE'S FITOUT AND FITTINGS
The Lessee's Fitout and Fittings shall at all times be and remain the
property of the Lessee (or the lessor of the Lessee's Fitout and Fittings,
if applicable) despite any particular method of annexation to the
Premises.
7.11 TIMING FOR WORKS AND COMPLIANCE WITH REQUIREMENTS
Despite any other provision of this Lease:
(a) the Lessee may carry out any maintenance, repair or replacement or
other works or comply with any Law or Requirement which it is
required under this Lease to do or comply with at such time as the
Lessee (acting reasonably) determines except that the Lessee must
still comply with:
(i) the timetable set out in the relevant Requirement to which any
works relate; and
(ii) clause 13; and
(b) subject to clause 7.11(a)(i), the Lessor agrees that the mere issue
of a Requirement or the existence of a non-compliance with Law does
not of itself:
(i) trigger the Lessee's obligation to comply with it; or
(ii) constitute a timetable to do any works; or
(iii) constitute a breach of this Lease by the Lessee;
(c) the Lessor cannot (and shall not) take any steps or exercise any
rights under this Lease or otherwise to cause the Lessee to remedy
the non-compliance with Law or comply with the Requirement (or do so
itself under clause 7.3 or otherwise), unless:
(i) clauses 7.11(a)(i) or (ii) apply; or
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(ii) the relevant Authority is taking active steps to require the
Lessor to remedy the non-compliance or comply with the
Requirement and the Lessor will be exposed to liability or
Cost if it does not do so; and
(d) the Lessee may, in its absolute discretion, elect to demolish any
asbestos clad or roofed Buildings rather than comply with the
relevant Law or Requirement but the Rent will not be reduced if the
Lessee does so.
7.12 SET OFF PROCEDURE
(a) (NOTICE) If the Lessee wishes to set off any amount against the
Rent, the Outgoings or any other amounts under this Lease in
exercise of its rights under this Lease to do so, then the Lessee
must give notice to the Lessor of the amount involved, reasonable
detail of what the set off relates to and the provision of this
Lease with respect to which the right is proposed to be exercised.
(b) (NO RESPONSE) If the Lessor does not respond to this notice within
20 Business Days of service of it (time being of the essence), the
Lessee is entitled to exercise the set off rights referred to in the
notice in accordance with this Lease.
(c) (DISPUTE) If the Lessor by notice to the Lessee disputes the
Lessee's notice given under clause 7.12(a) within 20 Business Days
of service of it (time being of the essence) and that dispute is not
resolved within 5 Business Days of service of the Lessor's notice,
either party may refer the matter to an appropriate independent
person for determination under clause 14. The Lessee may not
exercise any set off rights until any dispute under this clause has
been determined or resolved.
8. ASSIGNMENT AND SUB-LETTING
8.1 NO DISPOSAL OF LESSEE'S INTEREST WITHOUT CONSENT
(a) The Lessee may assign, transfer, sublet, licence or otherwise deal
with or part with possession of the Premises or this Lease or any
part of or any interest in them with the Consent of the Lessor which
shall not be unreasonably withheld.
(b) The Lessor Consents to all sub-leases, sub-licences or other
sub-rights to occupy the Premises which are in existence as at the
Effective Date, whether or not those arrangements have been
documented or disclosed.
8.2 LESSOR'S OBLIGATION TO CONSENT
The Lessor must give the Consent referred to in clauses 8.1 and 8.5 if the
Lessee proves to the reasonable satisfaction of the Lessor that the
incoming tenant is a respectable, responsible and solvent Person and, in
the case of an assignment or transfer, who is reasonably capable of
performing the Lessee's obligations under this Lease.
8.3 JAMES HARDIE INDUSTRIES N.V. PROVISIONS
Despite clause 8.1, whilst the Lessee is James Hardie Australia Pty
Limited or James Hardie Industries N.V. or a Related Body Corporate of
either of those companies:
(a) (SUBLETTING) the Lessee may sublet, licence or otherwise part with
possession of the Premises without obtaining the Lessor's Consent if
the proposed sublessee or licensee is James Hardie Australia Pty
Limited or James Hardie Industries N.V. or a Related Body Corporate
of either of those companies. The Lessee shall notify the Lessor
upon granting a sublease or licence of this nature;
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(b) (ASSIGNMENT) the Lessee may assign this Lease to a Related Body
Corporate of James Hardie Australia Pty Limited or James Hardie
Industries N.V. or to either of those companies without obtaining
the Lessor's Consent but notice of the assignment must be given to
the Lessor;
(c) (SALE OF BUSINESS) if there is a sale to a purchaser of the business
carried on by James Hardie Australia Pty Limited or James Hardie
Industries N.V. (as the case may be) then the Lessor gives its
consent to an assignment of this Lease to the purchaser;
(d) (SHORT TERM SUBLEASE OR LICENCE) the Lessee may sublet or licence up
to 1,000m2 of the Premises without the Lessor's Consent where the
term of that sublease or licence (excluding any renewal or holding
over period) does not exceed 12 months; and
(e) (NOVATION) the Lessee may novate this Lease to a Related Body
Corporate of James Hardie Australia Pty Limited or James Hardies
Industries N.V. as long as at the same time the novation occurs the
Lessee procures that a guarantee of the obligations of the new
tenant under this Lease is given by James Hardie Industries N.V. in
a form satisfactory to the Lessor (acting reasonably).
8.4 DEED
If the Lessor requests it, the Lessee shall procure that any assignee or
transferee of this Lease executes a direct covenant with the Lessor to
observe the terms of this Lease in such forms as the Lessor may reasonably
require including payment of reasonable legal costs.
8.5 CHANGE IN CONTROL
(a) If:
(i) the Lessee is a company which is neither listed nor directly
or indirectly wholly-owned by a company which is listed on any
recognised Stock Exchange; and
(ii) there is a proposed change in the shareholding of the Lessee
or its holding company so that a different person or group of
people will control the composition of the board of directors
or more than 50% of the shares giving a right to vote at
general meetings of the Lessee,
then that proposed change in control is treated as a proposed
assignment of this Lease and the Lessor's Consent must be obtained
prior to the change in control taking effect.
(b) The Lessor agrees that clause 8.5(a) will not apply to a change in
shareholding or control where James Hardie Australia Pty Limited or
a Related Body Corporate of James Hardie Australia Pty Ltd or James
Hardie Industries N.V. remains or becomes:
(i) the owner or ultimate holding company of the Lessee; or
(ii) in control of the composition of the board of directors of the
Lessee; or
(iii) in control of more than 50% of the shares giving a right to
vote at general meetings of the Lessee.
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9. INSURANCE AND INDEMNITIES
9.1 INSURANCES TO BE TAKEN OUT BY LESSEE
The Lessee shall:
(a) (PUBLIC RISK) keep current during the Term (including any extension
or Further Term or holding over) a public risk insurance policy with
respect to the Premises, such policy to be for an amount of not less
than the amount specified in Item 12;
(b) (APPROVED INSURERS) ensure that all insurance policies maintained
for the purposes of clause 9.1(a):
(i) (INSURANCE COMPANY) are taken out with an independent and
reputable insurer; and
(ii) (AMOUNT) are for amounts and contain conditions reasonably
acceptable to or reasonably required by the Lessor and/or the
Lessor's insurer(s); and
(c) (EVIDENCE OF INSURANCE) in respect of any policy of insurance to be
effected by the Lessee under this clause 9.1, whenever reasonably
required by the Lessor (but not more than once annually), give to
the Lessor a copy of the certificate of currency; and
(d) (INTEREST OF LESSOR) in respect of the policy of insurance to be
effected by the Lessee under clause 9.1(a), ensure that the interest
of the Lessor is noted,
except that the Lessee will be deemed to have complied with clauses 9.1(a)
to (d) if James Hardie Australia Pty Limited or James Hardie Industries
N.V. or a Related Body Corporate of either of those companies is the
Lessee and that Lessee is insured under the global insurance arrangements
of either of those companies.
9.2 INSURANCES TO BE TAKEN OUT BY LESSOR
The Lessor shall:
(a) (PROPERTY INSURANCE) keep current during the Term including any
extension or Further Term or holding over the property insurance for
the Premises including loss of rent cover (capped at 18 months)
referred to in paragraph (e) of the definition of Outgoings;
(b) (APPROVED INSURERS) ensure that all insurance policies maintained
for the purposes of clause 9.2(a):
(i) (INSURANCE COMPANY) are taken out with an independent and
reputable insurer; and
(ii) (AMOUNT) are for amounts and contain conditions reasonably
acceptable to or reasonably required by the Lessee and/or the
Lessee's insurer(s); and
(c) (EVIDENCE OF INSURANCE) in respect of any policy of insurance to be
effected by the Lessor under this clause 9.2, whenever reasonably
required by the Lessee (but not more than once annually), give to
the Lessee a copy of the certificate of currency and reasonable
details of the policy coverage; and
(d) (INTEREST OF LESSEE) in respect of the policy of insurance to be
effected by the Lessor under clause 9.2(a), ensure that any interest
of the Lessee is noted.
9.3 DEDUCTIBLES
The Lessor will not object to any reasonable deductibles contained in any
insurances effected or required to be effected by the Lessee pursuant to
clause 9.1 provided that the Lessee will indemnify the Lessor to the
extent of the deductible applicable under a Claim to which those
insurances apply.
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9.4 INFLAMMABLE SUBSTANCES
The Lessee shall not:
(a) (REASONABLE QUANTITIES) other than as is necessary for the Lessee's
Business, store chemicals, inflammable liquids, acetylene gas or
alcohol, volatile or explosive oils, compounds or substances on or
in the Premises; or
(b) (USE) use any of those substances or fluids in the Premises for any
purpose other than the Lessee's Business.
This clause 9.4 does not apply to anything in underground storage tanks on
the Premises which exist at the Effective Date.
9.5 EFFECT ON LESSOR'S INSURANCES
The Lessee shall not without the Lessor's Consent, do anything to or on
the Premises which will or may:
(a) (INCREASE THE RATE OF INSURANCE) increase the rate of any insurance
on the Premises or on any property in them, of which the Lessee has
been notified by the Lessor, without paying to the Lessor an amount
equal to the amount of that increase; or
(b) (AVOID INSURANCE) vitiate or render void or voidable any insurance,
of which the Lessee has been notified by the Lessor, in respect of
the Premises or any property in them.
9.6 INSURANCE PROPOSAL BY THE LESSEE
(a) If the Lessee is of the opinion that the Lessee will be able to
procure the same insurance required to be obtained by the Lessor
under clause 9.2(a) at a more competitive premium or on better
terms, the Lessee may by notice in writing to the Lessor propose
that it take out a policy for the insurance referred to in clause
9.2(a), noting the Lessor's interests as landlord (INSURANCE
PROPOSAL). The Lessee can only submit an Insurance Proposal once per
year.
(b) The insurer proposed must be either rated A or higher by S&P or
Moodys or a global insurer with respect only to the industrial
special risks component of the Insurance Proposal.
(c) The Lessor must not unreasonably withhold, condition or delay its
approval of an Insurance Proposal.
(d) If the Lessor approves the Insurance Proposal, the Lessee must
promptly take out the insurance policy proposed under the Insurance
Proposal (or, if the Lessor has failed to effect insurance under
clause 9.2(a), the Lessee may take out the insurance policy
anticipated by that clause) noting the Lessor's interests as
landlord and, if required by the Lessor in writing, must note the
interest of any financier to the Lessor and any mortgagee of the
Land.
(e) If the Lessee effects insurance under clause 9.6(d) and the Lessor
is not named as an insured party, the Lessee shall reimburse the
Lessor for any premiums for "difference in cover" insurance the
Lessor is required to effect as a result of the requirements of its
financiers, capped at 3% of the premiums payable by the Lessee under
its Insurance Proposal.
9.7 INDEMNITIES
Even if:
(a) (AUTHORISATION) a Claim results from something the Lessee may be
authorised or obliged to do under this Lease; and/or
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(b) (WAIVER) a waiver or other indulgence has been given to the Lessee
in respect of an obligation of the Lessee under this clause 9.7,
the Lessee, except to the extent caused or contributed to by the Lessor or
its Employees but only to the extent caused or contributed to by the
Lessee or its Employees, shall indemnify the Lessor in respect of all
Claims for which the Lessor will or may be or become liable, whether
during or after the Term, in respect of or arising directly or indirectly
from:
(c) (INJURY TO PROPERTY OR PERSON) any loss, damage or injury to
property or person, in on or near the Premises caused or contributed
to by:
(i) (NEGLIGENCE) any wilful or negligent act or omission;
(ii) (DEFAULT) any default under this Lease; and/or
(iii) (USE) the use of the Premises,
by or on the part of the Lessee or the Lessee's Employees;
(d) (ABUSE OF SERVICES) the negligent or careless use or neglect of the
Services and facilities of the Premises or the Appurtenances by the
Lessee or the Lessee's Employees or any other person claiming
through or under the Lessee;
(e) (WATER LEAKAGE) any overflow or leakage (including rain water or
from any Service, Appurtenance or the Lessor's Fixtures) whether
originating inside or outside the Premises; and
(f) (PLATE GLASS) any loss, damage or injury relating to plate and other
glass caused or contributed to by any act or omission on the part of
the Lessee or the Lessee's Employees,
but excluding any consequential loss.
10. DAMAGE, DESTRUCTION AND RESUMPTION
10.1 DAMAGE TO OR DESTRUCTION OF PREMISES
If at any time the Premises or any part of them are damaged or destroyed
so that the Premises or any part of them are wholly or substantially unfit
for the occupation and use of the Lessee or (having regard to the nature
and location of the Premises and the normal means of access) are wholly or
substantially inaccessible then, save where such damage or destruction
arises out of the wilful or negligent act or omission of the Lessee or its
Employees:
(a) (i) (RENT AND OUTGOINGS ABATEMENT) the Rent, the Outgoings and any
other money payable periodically under this Lease, or a
proportionate part of that Rent, the Lessee's Proportion of
Outgoings or other moneys according to the nature and extent
of the damage or destruction sustained, will abate; and
(ii) (REMEDIES SUSPENDED) all remedies for recovery of Rent, the
Lessee's Proportion of Outgoings and other moneys (or that
proportionate part of them, as the case may be) falling due
after that damage or destruction will be suspended,
until the Premises have been restored or made fit for the occupation
and use or made accessible to a standard equivalent to that at the
Effective Date and all Services, air conditioning and air
ventilation systems and fire fighting services and equipment for the
Premises have been repaired so that they operate at a standard not
less than as at the Effective Date;
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(b) (TERMINATION BY LESSEE) if the Premises are substantially destroyed,
damaged or rendered inaccessible due to the wilful or negligent act
or omission of the Lessor or by default by the Lessor under the
Lease, the Lessee shall have the right to terminate the Lease by
notice to the Lessor and to claim damages;
(c) (REINSTATEMENT BY LESSOR) unless:
(i) (NO INSURANCE MONEYS) the Lessor's insurance policies have
been invalidated or payment of insurance moneys under the
policies refused because of some wilful act or omission of the
Lessee or the Lessee's Employees;
(ii) (LESSEE INSURES) if clause 9.6(d) applies, the Lessee does not
make the proceeds of the insurance referred to in clause
9.2(a) available to the Lessor for reinstatement of the
Premises; or
(iii) (AGREEMENT) the parties agree otherwise,
the Lessor shall proceed with all reasonable expedition and
diligence to reinstate the Premises and/or make the Premises fit for
the occupation and use of and/or accessible to the Lessee to the
standard required by clause 10.1(a);
(d) (DETERMINATION BY LESSEE) where it is required under clause 10.1(c),
unless the Lessor obtains all necessary development consents to
authorise the necessary works to be done and provides reasonable
written evidence of that to the Lessee within 6 months of the
destruction or damage first occurring, then the Lessee may terminate
this Lease by giving not less than one month's notice to the Lessor.
At the end of that notice period this Lease will be at an end;
(e) (i) (DELAY IN REPAIR) if the Lessor is obliged under clause
10.1(c) to do so, but does not:
(A) substantially commence the necessary works to make good
the destruction or damage within 8 weeks, subject to any
reasonable extension necessary to obtain approvals from
any relevant Authority; and/or
(B) complete the necessary works to make good the
destruction or damage within 9 months, subject to any
reasonable extension necessary to obtain approvals from
any relevant Authority,
of it first occurring, then the Lessee may (by notice to the
Lessor) proceed to cause the necessary works to be carried out
and the Lessor shall allow the Lessee, its Employees,
contractors and workmen access to the Land for that purpose;
and
(ii) (COSTS) all Costs of any kind incurred by the Lessee under
clause 10.1(e)(i) shall at the Lessee's option (but subject to
clause 7.12):
(A) (DEMAND) be payable by the Lessor to the Lessee on
demand on a full indemnity basis;
(B) (PROCEEDS) be paid from available proceeds of the
insurance effected under clause 9.2(a), which the Lessor
must promptly make available to the Lessee; or
(C) (COMBINATION) be accounted for by a combination of the
above in the Lessee's discretion,
until all Costs incurred by the Lessee have been recovered;
and
(f) (NO OBLIGATION TO RE-INSTATE) if the circumstances in clauses
10.1(c)(i) or (ii) exist, then the Lessor shall be under no
obligation to reinstate the Premises or the means of access to them.
In that case, either party may terminate this Lease by giving not
less than one month's notice to the other.
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10.2 RESUMPTION OF PREMISES
If at any time the whole or any part of the Premises is resumed so that
the residue of them is wholly or partially unfit for the occupation and
use of the Lessee or (having regard to the nature and location of the
Premises and the normal means of access) is wholly or partially
inaccessible, then:
(a) (RENT ABATEMENT) a proportionate part of the Rent, the Lessee's
Proportion of Outgoings, and any other moneys payable periodically
under this Lease, according to the nature and extent of the
resumption and having regard to the resultant impact on the Lessee's
trade and takings, will abate; and
(b) (REMEDIES SUSPENDED) all remedies for recovery of that
proportionate, part of the Rent, the Lessee's Proportion of
Outgoings, and other moneys falling due after that resumption will
be suspended.
10.3 LIABILITY
Except under clause 10.1(b), neither the Lessor or the Lessee is liable
because of the determination of this Lease under this clause 10. That
determination will be without prejudice to the rights of either party in
respect of any preceding breach or non-observance of this Lease.
10.4 DISPUTE
Any dispute-arising under clauses 10.1 or 10.2 shall be determined by an
appropriate independent person under clause 14.
11. LESSOR'S COVENANTS AND WARRANTIES
11.1 QUIET ENJOYMENT
If the Lessee pays the Rent and other money payable under this Lease and
observes and performs its obligations under this Lease, the Lessee may
occupy and enjoy the Premises during the Term and any extension or Further
Term or holding over without any interruption by the Lessor or by any
person rightfully claiming through, under or in trust for the Lessor, or
the Lessor's Employees.
11.2 OUTGOINGS
Without limiting the Lessor's rights of recovery under this Lease, and
except where directly payable by the Lessee under this Lease, the Lessor
shall pay all Outgoings promptly and, where applicable, by any due date
for payment.
11.3 CONSENT OF MORTGAGEE
The Lessor warrants that it has obtained all Consents (including Consents
from any mortgagee of the Land) necessary for it to enter into this Lease.
11.4 DELETED
11.5 ACCESS
The Lessor must provide the Lessee with access to the Premises 24 hours a
day, 7 days a week.
11.6 MANAGEMENT OF LAND
The Lessor covenants with the Lessee that it will not subdivide or
reconfigure the Land or create any easement, covenant or other right
unless it obtains the Consent of the Lessee (which Consent shall not be
unreasonably withheld). The Lessee may only withhold its Consent under
this clause 11.6 if the actions proposed by the Lessor
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will have a material adverse impact on the Lessee's rights under this
Lease or the Lessee's Business or the Lessee's use of the Premises or the
Land. Any dispute under this Clause 11.6 may be referred by either party
for determination under Clause 14.
11.7 CONSTRUCTION
The Lessee acknowledges that during the Term the Lessor may (if clauses
18.2(a) or 18.3(a) apply) redevelop parts of the Land which are no longer
included in this Lease and that it may be disturbed by resulting
construction dust and noise. However, during any construction or
redevelopment on the Land, the Lessor must:
(a) (ACCESS) do all things necessary to minimise disturbance to the
Lessee in its access to, use and occupation of the Premises except
that the Lessor may interrupt Services for a maximum period of 24
hours during non-shift time after consultation with and prior
agreement of the Lessee or at other times as the Lessee may agree;
(b) (BUSINESS) do all things necessary to minimise disruption to the
Lessee's Business conducted in the Premises.
11.8 COMPETITORS
The Lessor covenants with the Lessee that it will not grant any lease or
right of occupancy of or right to erect, install, affix, paint or
otherwise display signage or advertising on any part of the Land or sell
the Land or any part of it to any Competitor without the Consent of the
Lessee.
11.9 BREACH OF WARRANTY OR COVENANT
If the Lessor breaches clauses 11.5, 11.6, 11.7 or 11.8 then, without
prejudice to any other rights or remedies the Lessee may have, the Lessee
at any time and in its absolute discretion shall be entitled to give the
Lessor notice of an intention to terminate this Lease unless the Lessor
satisfies the conditions contained in the notice within 20 Business Days
or such longer period as may be reasonably required having regard to the
nature of the breach and the time reasonably required to remedy the breach
(the REMEDY PERIOD). If the conditions are not satisfied within the Remedy
Period, the Lessee may in its absolute discretion terminate this Lease at
any time after that.
12. DEFAULT AND DETERMINATION
12.1 DEFAULT
Each of the following is an Event of Default (whether or not it is in the
control of the Lessee):
(a) (RENT IN ARREARS) the Rent or any part of it or any other money is
in arrears and unpaid for 15 Business Days after it is due and has
been demanded;
(b) (FAILURE TO PERFORM OTHER COVENANTS) subject to clause 7.11, the
Lessee fails to perform or observe any of its other obligations
under this Lease within 15 Business Days or such longer period that
may be reasonable in the circumstances after service of a notice
requiring performance of the covenants; and
(c) (LIQUIDATION) the Liquidation of the Lessee.
12.2 FORFEITURE OF LEASE
If an Event of Default occurs the Lessor may, without prejudice to any
other Claim which the Lessor has or may have or could otherwise have
against the Lessee or any other person in respect of that default, at any
time:
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(a) (DETERMINATION BY RE-ENTRY) subject to any prior demand or notice as
is required by Law and wherever possible, outside the normal trading
hours of the Lessee, re-enter into and take possession of the
Premises or any part of them (by force if necessary) and eject the
Lessee and all other persons from them, in which event this Lease
will be at an end; and/or
(b) (DETERMINATION BY NOTICE) by notice to the Lessee determine this
Lease, and from the date of giving that notice this Lease will be at
an end.
12.3 WAIVER
(a) (WAIVER BY LESSOR) No consent or waiver express or implied by the
Lessor to or of any breach of any covenant, condition, or duty of
the Lessee shall be construed as a consent or waiver to or of any
breach of the same or any other covenant, condition or duty.
(b) (WAIVER BY LESSEE) No consent or waiver express or implied by the
Lessee to or of any breach of any covenant, condition, or duty of
the Lessor shall be construed as a consent or waiver to or of any
breach of the same or any other covenant, condition or duty.
12.4 LESSOR TO MITIGATE DAMAGES
If the Lessee vacates the Premises, whether with or without the Lessor's
Consent, or the Lessor terminates or forfeits this Lease, the Lessor shall
take all reasonable steps to mitigate its loss and shall as soon as
possible endeavour to re-let the Premises at a reasonable rent and on
reasonable terms.
12.5 RECOVERY OF DAMAGES
(a) (FUNDAMENTAL TERMS) The obligations contained in clauses 4.1, 4.2,
4.3, 4.4, 4.5, 5.3, 5.5, 6.1(a), 7.1(a) and (d), 7.6(a), 8.1, 9.1,
10.1 and 10.3 are agreed by the Lessor and the Lessee to be
fundamental to this Lease.
(b) (DAMAGES) If the Lessor determines this Lease pursuant to this
clause 12 as a consequence of or in reliance upon a breach by the
Lessee of one or more of the obligations contained in the provisions
of this Lease referred to in clause 12.5(a) (whether alone or
together with other obligations contained in this Lease) the Lessor
shall, subject to clause 12.4, be entitled to damages for loss of
the benefits which performance of all of the obligations and
provisions of this Lease would, but for the determination, have
conferred upon the Lessor, subject to the Lessor's duty to mitigate
its loss.
12.6 INTEREST ON OVERDUE MONEY
(a) (INTEREST) The Lessee shall pay to the Lessor interest at the
Interest Rate on any Rent or other money due under this Lease
(including money or Costs which are expressed to be payable or
reimbursable to the Lessor on demand) but unpaid for 5 Business
Days.
(b) (CONDITIONS) That interest shall:
(i) (ACCRUAL) accrue on a daily basis and be calculated on daily
rests;
(ii) (PAYMENT) be payable on demand or, if no earlier demand is
made, on the first Business Day of each month where an amount
arose in the preceding month or months;
(iii) (CALCULATION) be calculated from the due date for payment of
the Rent or other money (as appropriate) or, in the case of an
amount payable by way of reimbursement or indemnity, the date
of outlay or loss, if earlier, until the date of actual
payment; and
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(iv) (RECOVERY) be recoverable in the same manner as Rent in
arrears.
13. TERMINATION
13.1 YIELD UP
In relation to the Premises (other than the Non Make Good Buildings), the
Lessee shall at the Terminating Date:
(a) (YIELD UP) yield them up in the state of repair and condition
described in and on the terms set out in clause 7.1 except that the
Lessee is not obliged to remove any Proposed Work it has done during
the Term nor to reinstate the Premises to their former condition
unless that was a condition of the Lessor's Consent to that Proposed
Work being carried out by the Lessee; and
(b) (REMOVE LESSEE'S FITOUT AND FITTINGS) if the Lessor so requests or
if the Lessee wishes to, remove from the Premises (other than the
Non-Make Good Buildings) all the Lessee's Fitout and Fittings and
any other property of the Lessee and repaint those parts of the
Premises (other than the Non-Make Good Buildings) which were
previously painted and recarpet those parts of the Premises (other
than the Non-Make Good Buildings) which were carpeted at the
Effective Date with carpet of such quality as was installed at the
Effective Date.
13.2 NON MAKE GOOD BUILDINGS
In relation to the Non Make Good Buildings:
(a) (REMOVE LESSEE'S FITOUT AND FITTINGS) if the Lessor so requests the
Lessee shall or if the Lessee wishes to the Lessee may, remove from
the Premises all the Lessee's Fitout and Fittings and any other
property of the Lessee; and
(b) (ANY CONDITION) the Lessee can deliver them up to the Lessor in any
condition, subject to performance of the Lessee's obligations in
clause 7.1(d) which are due to be performed prior to the Terminating
Date and under clause 13.2(a).
13.3 LESSEE NOT TO CAUSE DAMAGE
The Lessee shall:
(a) (NOT CAUSE DAMAGE) not cause or contribute to any damage to the
Premises (other than the Non Make Good Buildings) in the removal of
the Lessee's Fitout and Fittings and other property of the Lessee.
If it does, however, it shall make good that damage; and
(b) (LEAVE PREMISES IN GOOD STATE) leave the Premises in a clean state
and Condition.
If the Lessee fails to comply with clauses 13.1, 13.2 and 13.3(a) and (b)
within a reasonable time of the Terminating Date, the Lessor may make good
and/or clean the Premises to the extent the Lessee was obliged to do so at
the Cost of and as agent for the Lessee and recover from the Lessee the
Cost to the Lessor of doing so as a liquidated debt payable on demand. The
Lessee must also pay Rent and the Lessee's Proportion of Outgoings for any
reasonable period in which the Lessor undertakes the Lessee's obligations
under this clause 13.3.
13.4 FAILURE BY LESSEE TO REMOVE LESSEE'S FITOUT AND FITTINGS
If the Lessee fails to remove the Lessee's Fitout and Fittings and other
property of the Lessee when required to do so under clauses 13.1 or 13.2
or following determination under clause 12.2, within 30 Business Days of
notice to
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do so, the Lessor may cause the Lessee's Fitout and Fittings and other
property of the Lessee to be removed and stored in such manner as the
Lessor in its discretion thinks fit at the risk and Cost of the Lessee.
The Lessee must also pay Rent and the Lessee's Proportion of Outgoings for
any reasonable period in which the Lessor undertakes the Lessee's
obligations under this clause 13.4.
13.5 FAILURE TO REMOVE
If the Lessee fails to remove the Lessee's Fitout and Fittings and other
property of the Lessee by the Terminating Date under clauses 13.1 and 13.2
where the Lessor has not requested in writing that it do so, it shall then
become the property of the Lessor.
14. DISPUTES
14.1 APPOINTMENT OF EXPERT
Any dispute arising under this Lease may at the request of either party be
referred for determination by an appropriate independent person who is:
(a) (AGREED BY PARTIES) agreed between the Lessor and the Lessee; or
(b) (FAILING AGREEMENT) if they cannot agree, a member of a professional
body nominated at the request of either the Lessor or the Lessee by
the President of the Property Council of Australia Limited.
14.2 QUALIFICATIONS OF EXPERT
The appointed person:
(a) (EXPERIENCE) must have substantial experience in relation to
disputes in the nature of the matter in dispute and where
appropriate, in relation to premises of a similar type within the
area in which the Premises are located or other comparable areas;
and
(b) (EXPERT) in making his determination shall act as an expert and not
as an arbitrator.
His determination will be final and binding on the parties.
14.3 COST OF DETERMINATION
The Cost of the appointed person's determination shall be borne by either
or both of the parties (as determined by the appointed person) and if by
both of the parties in the proportion between them as the person making
the determination decides.
15. ENVIRONMENTAL CONTAMINATION
15.1 LESSEE'S RESPONSIBILITY
Despite any other provision of this Lease except clauses 15.4 and 15.5(b)
and (c) and the Lessee's obligations with respect to underground storage
tanks and any Environmental contamination associated with them under
clause 7.1(d), the Lessee is not responsible for:
(a) inground Environmental contamination of the Land or migrating onto
or from the Land which exists at the Effective Date; or
(b) for any Environmental contamination in, on, under or migrating onto
or from the Land which occurs on and after the Effective Date which
is not caused by the Lessee or its Employees.
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15.2 LESSOR'S OBLIGATIONS AND INDEMNITY
The Lessor shall:
(a) (COMPLY) without delay, but subject to clauses 15.4 and 15.5(b) and
(c):
(i) remediate any Environmental contamination referred to in
clause 15.1 and which:
(A) any Authority requires remediated; or
(B) the parties agree or the expert under clause 14
determines is required pursuant to clause 15.2(c); and
(ii) comply with the Requirements of any Authority and the Law with
respect to the Environmental contamination referred to in
clause 15.1; and
(b) (INDEMNIFY) indemnify the Lessee against all Claims arising from the
matters set out in clause 15.2(a) including any Costs arising from
any agreement negotiated by or with the consent of the Lessor acting
reasonably with any Authority relating to the matters referred to in
clause 15.2(a) except to the extent that:
(i) other than with respect to Environmental contamination which
constitutes a health and safety risk which the Lessee is
required to notify to an Authority by Law, the Lessee or the
Lessee's Employees have taken action with the intention of
causing a Claim to be made or a notice or other Requirement
issued and that action directly or indirectly has a material
effect in causing the Claim to be made or the notice or other
Requirement to be issued;
(ii) the Claim relates to Remediation to a standard higher than
that required for industrial use (which the parties agree is
the standard appropriate for the Permitted Use) whether
arising from a rezoning of the Premises or otherwise; and/or
(iii) any disposition by the Lessee of a legal or equitable interest
which the Lessee has in the Premises is made on terms which
include an indemnity in respect of the Environment which is
materially more advantageous to the person receiving that
interest from the Lessee than the indemnity included in this
clause 15.2, including in respect of the qualifications
applicable to the indemnity contained in this clause 15.2(b).
(c) (i) If there is any Environmental contamination referred to in
clause 15.1 which:
(A) prevents the Lessee operating from the Premises in the
manner used at the Effective Date; or
(B) otherwise constitutes a health and safety risk,
then the Lessee may give notice to the Lessor with reasonable
details of the Environmental contamination and requesting that
the Lessor remediate that contamination.
(ii) If the Lessor disputes whether the remediation requested by
the Lessee is reasonably necessary, it must give notice to the
Lessee within 20 Business Days of the date of service of the
Lessee's notice under paragraph (i).
(iii) If the Lessor and the Lessee cannot agree on whether the
remediation requested by the Lessee is reasonably necessary
within 25 Business Days of the date of service of the Lessee's
notice under paragraph (i) above, then either party may refer
the matter for dispute resolution under clause 14.
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15.3 REMEDIATION BY THE LESSEE IF LESSOR DEFAULTS
If:
(a) (LESSOR'S FAILURE) the Lessor fails to comply with clause 15.2(a) in
accordance with the Requirements of any Authority and the Law (or,
if no time is specified, within a reasonable time of notice from the
Lessee, having regard to the nature of the remediation or the Law or
Requirement and the period of time reasonably required to carry out
the remediation or comply with the Law or Requirement); or
(b) (EMERGENCY) any emergency arises which requires the immediate or
urgent remediation of Environmental contamination or compliance with
a Requirement or the Law which the Lessor is required to remediate
or comply with under this Lease,
then the Lessee may remediate the Environmental contamination or comply
with the Law or the Requirement and the Cost of so doing and of all Claims
incurred by the Lessee in properly complying with that Law or Requirement
or arising from the Lessor's failure to do so and any reasonable Costs
arising from temporary relocation of all or part of the Lessee's Business
shall, at the Lessee's option be (but subject to clause 7.12):
(c) (ON DEMAND) payable by the Lessor to the Lessee on demand on a full
indemnity basis;
(d) (SET OFF) be set off against the Rent, the Lessee's Proportion of
Outgoings and any other moneys payable by the Lessee under this
Lease; or
(e) (COMBINATION) accounted for by a combination of the above in the
Lessee's discretion,
until all Costs incurred by the Lessee have been recovered.
15.4 PRE-EXISTING UST'S
The Lessee must by the Terminating Date remove any underground storage
tanks existing on the Land at the Effective Date or installed by the
Lessee during the Term and remediate or otherwise deal with any
Environmental contamination associated with them to the extent required to
enable the Land to continue to be used for industrial purposes following
the Terminating Date.
15.5 SPECIFIC OBLIGATIONS
(a) Subject to clause 7.11, the Lessee must effect and maintain all
Environmental management plans relating to the Environmental
condition of the Buildings on the Premises which are Required by Law
or any Authority during the Term.
(b) Subject to clauses 7.11 and 15.5(c), the Lessee shall contribute up
to a maximum of $40,000 per annum (increased by 3% per annum on each
anniversary of the Effective Date) towards the Costs of:
(i) day to day repair and maintenance of the pumping out equipment
(but not capital or structural Costs); and
(ii) any pumping out of mobile contaminants (including petroleum
hydrocarbons) identified in the groundwater of that part of
the Land included in the Premises,
which is Required by Law or any Authority during the Term or any
balance in excess of this amount per annum shall be payable by the
Lessor within 5 Business Days of receipt of a tax invoice and
reasonable details of the amount claimed.
(c) The Lessor must pay all capital Costs associated with the purchase,
commissioning and, subject to the Lessee performing the repair and
maintenance obligation referred to in clause 15.5(b), replacement of
the remediation equipment required for the purposes of pumping out
from the Premises and which is
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Required by Law or any Authority during the Term, within 5 Business
Days of receipt of a tax invoice and reasonable details of the
amounts claimed.
15.6 RECOVERY FROM POLLUTER
The Lessor must:
(a) include any pumping out Costs paid by the Lessee under clause
15.5(b) in any Claim against the polluter; and
(b) reimburse to the Lessee any of those Costs recovered from the
polluter within 5 Business Days of receipt (capped at the amounts
actually incurred by the Lessee).
15.7 ACKNOWLEDGEMENT
Without limiting any other provision of this clause 15, the Lessee
acknowledges that the Premises are at the Effective Date subject to
Environmental contamination and accepts the Premises in that state.
16. MISCELLANEOUS
16.1 NOTICES
All notices, requests, demands, consents, approvals, agreements or other
communications to or by a party to this Lease:
(a) (WRITING) must be in writing;
(b) (SIGNED) must be signed by the sender, or if a company, by its
Authorised Officer; and
(c) (SERVED) will be taken to have been served:
(i) (PERSONAL) in the case of delivery in person, when delivered
to or left at the address of the recipient shown in this Lease
(as the case may be) or at any other address which the
recipient may have notified to the sender;
(ii) (FAX) in the case of facsimile transmission, when recorded on
the transmission result report unless:
(A) within 24 hours of that time the recipient informs the
sender that the transmission was received in an
incomplete or garbled form; or
(B) the transmission result report indicates a faulty or
incomplete transmission; and
(d) (MAIL) in the case of mail, on the third Business Day after the date
on which the notice is accepted for posting by the relevant postal
authority,
but if service is on a day which is not a Business Day in the place to
which the communication is sent or is later than 4.00pm (local time) on a
Business Day, the notice will be taken to have been served on the next
Business Day in that place.
16.2 STAMP DUTY, COSTS AND REGISTRATION
(a) (STAMP DUTY AND REGISTRATION FEES) The Lessee shall pay to the
Lessor on demand all stamp duty (including penalties and fines other
than those incurred due to the fault of the Lessor) and all
registration fees (if applicable) with respect to this Lease.
(b) (LEGAL COSTS) Each party shall pay their own legal Costs with
respect to this Lease.
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(c) (LESSOR TO STAMP AND REGISTER) The Lessor shall (subject to receipt
of necessary funds from the Lessee) attend to payment of stamp duty
on and registration of this Lease at the Department of Natural
Resources and Mines, Brisbane as soon as possible after the
Effective Date.
16.3 SEVERANCE
Any provision of this Lease which is prohibited or unenforceable in any
jurisdiction will be ineffective in that jurisdiction to the extent of the
prohibition or unenforceability. That will not invalidate the remaining
provisions of this Lease nor affect the validity or enforceability of that
provision in any other jurisdiction.
16.4 ENTIRE AGREEMENT
This Lease contains all the contractual arrangements of the parties with
respect to the transaction to which it relates. No representations or
warranties made by either party with respect to the transaction to which
this Lease relates shall be actionable or enforceable except to the extent
that they are contained in this Lease.
16.5 GOVERNING LAW
This Lease is governed by the laws of Queensland. The parties submit to
the non-exclusive jurisdiction of courts exercising jurisdiction there.
17. CONFIDENTIALITY
(a) (DUTY) Unless the parties otherwise agree in any particular
instance, the provisions of this Lease and all information disclosed
to or obtained by the parties in relation to each other and this
Lease and which is not in public knowledge (or which is in public
knowledge only as a consequence of a breach of this clause) must be
kept confidential to the parties and may not be disclosed (unless
otherwise required by Law) except to any bona fide consultants
retained by a party in relation to this Lease, or to bona fide
purchasers, financiers, assignees or sub occupants (as the case may
be) and any such consultant or other person must be provided only
with that information which he needs to know for the purposes of
reviewing this Lease and he must undertake in writing to maintain
the confidentiality of that information.
(b) (INDEMNITY) The parties shall indemnify each other and must keep
each other indemnified against all Claims suffered or incurred as a
consequence of any breach of clause 17(a) by the Lessor or the
Lessee or their respective Employees, consultants or other reasons
for whom they are responsible.
18. SURRENDER OF LEASE
18.1 DEFINITIONS
AUSCO SUBLEASE means the sublease between the Lessee and Ausco Pty Limited
which commenced on 1 March 2004, including the further term under the put
and call option contained in that sublease.
AUSCO SUBLEASE EXPIRY DATE means 30 March 2010.
AUSCO SUBLEASE PREMISES means the premises subleased to Ausco Pty Limited
pursuant to the Ausco Sublease.
DEVELOPMENT LAND means that part of the Premises hatched on the plan in
Annexure D.
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18.2 PARTIAL SURRENDER
(a) At any time after the Ausco Sublease Expiry Date, the Lessee may
surrender its interest in this Lease with respect to the Ausco
Sublease Premises by notice to the Lessor. The Lessee is released
from all obligations with respect to the Ausco Sublease Premises
which arise after the date of service of that notice, subject to
clause 18.2(b) and (c).
(b) Despite any other provision of this Lease, on the date of service of
the notice referred to in clause 18.2(a), the Lessee's Proportion of
Outgoings payable under this Lease shall be reduced by an amount
equal to the outgoings payable under the Ausco Sublease but the Rent
will not reduce.
(c) If the Lessee has exercised its right under clause 18.2(a), the Rent
shall reduce by the amount which is 50% of the per annum rent
payable in the last year of the Ausco Sublease on the date of
practical completion of a new building on all or any part of the
Ausco Sublease Premises. The Lessor must promptly give notice to the
Lessee when the new lease commences.
(d) The parties shall promptly do all things necessary to prepare,
execute and register any documentation relevant to the surrender
referred to in clause 18.2(a) and the variations to the Lease
arising under clause 18.2(b) and 18.2(c).
(e) The parties agree that despite any other provision of this Lease,
the Lessor's Consent to any holding over, renewal, extension or new
lease to Ausco of all or any part of the Ausco Sublease Premises is
not required.
18.3 REDUCTION IN AREA OF PREMISES
(a) (REDUCTION IN AREA) If the Lessor proposes to redevelop the
Development Land, the Lessor may at any time during the Term by
giving not less than 3 months notice to the Lessee (such notice
attaching the registrable form of partial surrender of lease)
require the Lessee to surrender this Lease with respect to the
Development Land.
(b) (CONSEQUENCES) If the Lessor gives notice to the Lessee under clause
18.3(a):
(i) the Lessee's Proportion of Outgoings will be reduced in
proportion to the reduction in the area of the Premises from
the date of expiry of the Lessor's notice given under clause
18.3(a) but the Rent will not reduce;
(ii) the Lessee and the Lessor must promptly execute all
documentation reasonably necessary to document the partial
surrender of this Lease at the Lessor's reasonable Cost;
(iii) the Lessor shall pay any stamp duty (including fines and
penalties) chargeable on the partial surrender of this Lease
and any survey or registration fees payable to enable the
registration of the partial surrender of this Lease at the
Department of Natural Resources and the Lessor must promptly
attend to registration of the surrender;
(iv) clauses 13.2, 13.3 and 13.4 shall apply with respect to the
area surrendered;
(v) the Lessee must:
(A) use reasonable commercial endeavours (other than making
any payments) to secure a reasonable means of access to
the Development Land through the Ausco Sublease
Premises; or
(B) if the Lessee cannot satisfy paragraph (A) by the date
of expiry of the Lessor's notice under clause 18.3(a) or
such longer period as the Lessor and the Lessee may
agree, then
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the Lessee must permit the Lessor and persons authorised
by it to have through the balance of the Premises a
reasonable means of access to the Development Land, so
long as that access and the use of it do not have a
material adverse impact on the Lessee's use or operation
of the Premises; and
(vi) neither party shall have any further obligation to the other
with respect to the Development Land except for any
pre-existing breach and clauses 11.6, 11.7 and 11.8.
19. LIMITATION OF LIABILITY
19.1 CAPACITY OF LESSOR
Where the Lessor is a trustee of a trust (TRUST), the Lessor only enters
into this Lease in its capacity as trustee of the Trust and in no other
capacity. A liability arising under or in connection with this Lease is
limited and can be enforced against the Lessor only to the extent to which
it can be satisfied out of property of the Trust and for which the Lessor
is actually indemnified for the liability. This limitation of the Lessor's
liability applies despite any other provisions of this Lease (except
clause 19.3 ("When limitation does not apply")) and extends to all
liabilities and obligations of the Lessor in any way connected with any
representation, warranty, conduct, omission, agreement or transaction
related to this Lease, any other document in connection with it, or the
Trust.
19.2 PARTIES MAY NOT SUE
The parties may not sue the Lessor in any capacity other than as trustee
of the Trust, including seeking the appointment of a receiver, a
liquidator, an administrator or similar person to the Lessor or prove in
any liquidation, administration or arrangement of or affecting the Lessor
(except in relation to property of the Trust).
19.3 WHEN LIMITATION DOES NOT APPLY
Clauses 19.1 and 19.2 shall not apply to any obligation or liability of
the Lessor to the extent that it is not satisfied because, under this
Lease or any other document in connection with it, or by operation of law,
there is a reduction in the extent of the Lessor's indemnification out of
the assets of the Trust, as a result of the Lessor's fraud, negligence or
breach of trust.
19.4 FAILURE BY THIRD PARTIES
It is acknowledged that the Lessor is responsible under this Lease and
other documents in connection with it for performing a variety of
obligations relating to the Trust. No act or omission of the Lessor will
be considered fraud or negligence of the Lessor for the purposes of
clauses 19.3 ("When limitation does not apply") or 19.5 ("Breach by the
Lessor") to the extent to which the act or omission was caused by any
failure by any person who provides services in respect of the Trust to
fulfil its obligations relating to the Trust or by any other act or
omission of any person who provides services in respect of the Trust
(other than employees and agents of the Lessor or a person who has been
delegated or appointed by the Lessor).
19.5 BREACH BY THE LESSOR
It is also acknowledged that a breach of an obligation imposed on, or a
representation or warranty given by, the Lessor under or in connection
with this Lease or any other document in connection with it will not be
considered a breach of trust by the Lessor unless the Lessor has acted
with negligence, or without good faith, in relation to the breach.
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20. TRUST WARRANTIES
Where the Lessor is a trustee and/or responsible entity of a Trust, the
Lessor warrants in its personal capacity that:
(a) (TRUSTEE) it is the sole trustee of the Trust;
(b) (POWER) it, in its capacity as trustee of the Trust, is entitled and
competent and has absolute and complete authority, power and
capacity to enter into and perform its obligations under this Lease
and is not in breach of any Law or court order relating to its
acting as trustee of the Trust;
(c) (INDEMNITY) its right of indemnity out of, and lien over, the assets
of the Trust has not been limited in any way and that right has
priority over the right of the beneficiaries to the Trust assets;
(d) (ENFORCEABLE) the deed establishing the Trust (TRUST DEED) is
enforceable in accordance with the Law applicable to it;
(e) (CONSENT) the consent of each of the beneficiaries, unitholders or
other persons whose consent is required under the Trust Deed has
been obtained;
(f) (NO BREACH) the entry into this Lease by the Lessor does not
conflict with or result in a breach of, or default under, any
provision of the Trust Deed or any other agreement to which the
Lessor is a party (whether in its capacity as trustee of the Trust
or its personal capacity);
(g) (TRUST EXTANT) the Trust has not at the Effective Date been
terminated nor has the date or any event for the vesting of the
assets subject to the Trust occurred.
21. GUARANTEE AND INDEMNITY
21.1 CONSIDERATION
The Guarantor gives this guarantee and indemnity in consideration of the
Lessor agreeing to enter into this Lease at the request of the Guarantor.
The Guarantor acknowledges the receipt of valuable consideration from the
Lessor for the Guarantor incurring obligations and giving rights under
this guarantee and indemnity.
21.2 GUARANTEE
The Guarantor unconditionally and irrevocably guarantees to the Lessor the
due and punctual performance and observance by the Lessee of its
obligations:
(a) under this Lease, even if this Lease is not registered or is found
not to be a lease or is found to be a lease for a term less than the
Term; and
(b) in connection with its occupation of the Premises,
including the obligations to pay money.
21.3 INDEMNITY
As a separate undertaking, the Guarantor unconditionally and irrevocably
indemnifies the Lessor against all liability or loss arising from, and any
costs, charges or expenses incurred in connection with:
(a) the Lessee's breach of this Lease; or
(b) the Lessee's occupation of the Premises,
including a breach of the obligations to pay money; or
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(c) a representation or warranty by the Lessee in this Lease being
incorrect or misleading when made or taken to be made; or
(d) a liquidator disclaiming this Lease.
It is not necessary for the Lessor to incur expense or make payment before
enforcing that right of indemnity.
21.4 INTEREST
The Guarantor agrees to pay interest on any amount payable under this
guarantee and indemnity from when the amount becomes due for payment until
it is paid in full. The Guarantor must pay accumulated interest at the end
of each month without demand. Interest is payable as set out in clause
12.6.
21.5 ENFORCEMENT OF RIGHTS
The Guarantor waives any right it has of first requiring the Lessor to
commence proceedings or enforce any other right against the Lessee or any
other person before claiming under this guarantee and indemnity.
21.6 CONTINUING SECURITY
This guarantee and indemnity is a continuing security and is not
discharged by any one payment.
21.7 GUARANTEE NOT AFFECTED
The liabilities of the Guarantor under this guarantee and indemnity as a
guarantor, indemnifier or principal debtor and the rights of the Lessor
under this guarantee and indemnity are not affected by anything which
might otherwise affect them at law or in equity including, but not limited
to, one or more of the following:
(a) the Lessor granting time or other indulgence to, compounding or
compromising with or releasing the Lessee or any other Guarantor;
(b) acquiescence, delay, acts, omissions or mistakes on the part of the
Lessor;
(c) any transfer of a right of the Lessor;
(d) the termination, surrender or expiry of, or any variation,
assignment, subletting, licensing, extension or renewal of or any
reduction or conversion of the Term of this Lease;
(e) the invalidity or unenforceability of an obligation or liability of
a person other than the Guarantor;
(f) any change in the Lessee's occupation of the Premises;
(g) this Lease not being registered;
(h) this Lease not being effective as a lease;
(i) this Lease not being effective as a lease for the Term;
(j) any person named as Guarantor not executing or not executing
effectively this guarantee and indemnity;
(k) a liquidator disclaiming this Lease.
21.8 SUSPENSION OF GUARANTOR'S RIGHTS
The Guarantor may not:
(a) raise a set-off or counterclaim available to it or the Lessee
against the Lessor in eduction of its liability under this guarantee
and indemnity; or
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(b) claim to be entitled by way of contribution, indemnity, subrogation,
marshalling or otherwise to the benefit of any security or guarantee
held by the Lessor in connection with this Lease; or
(c) make a claim or enforce a right against the Lessee or its property;
or
(d) prove in competition with the Lessor if a liquidator, provisional
liquidator, receiver, administrator or trustee in bankruptcy is
appointed in respect of the Lessee or the Lessee is otherwise unable
to pay its debts when they fall due,
until all money payable to the Lessor in connection with the lease or the
Lessee's occupation of the Premises is paid.
21.9 REINSTATEMENT OF GUARANTEE
If a claim that a payment to the Lessor in connection with this Lease or
this guarantee and indemnity is void or voidable (including, but not
limited to, a claim under laws relating to liquidation, administration,
insolvency or protection of creditors) is upheld, conceded or compromised
then the Lessor is entitled immediately as against the Guarantor to the
rights to which it would have been entitled under this guarantee and
indemnity if the payment had not occurred.
21.10 COSTS
The Guarantor agrees to pay or reimburse the Lessor on demand for:
(a) the Lessor's costs, charges and expenses in making, enforcing and
doing anything in connection with this guarantee and indemnity
including, but not limited to, legal costs and expenses on a full
indemnity basis; and
(b) all stamp duties, fees, taxes and charges which are payable in
connection with this guarantee and indemnity or a payment, receipt
or other transaction contemplated by it.
Money paid to the Lessor by the Guarantor must be applied first against
payment of costs, charges and expenses under this clause 21.10 then
against other obligations under this guarantee and indemnity.
21.11 LESSOR MAY ASSIGN
The Lessor may assign its rights under this guarantee and indemnity to a
purchaser or transferee of the Land.
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TABLE OF CONTENTS
1. INTERPRETATION 5
1.1 Definitions 5
1.2 General 9
2. EXCLUSION OF STATUTORY PROVISIONS 11
2.1 Relevant Acts 11
3. TERM 11
3.1 Term of Lease 11
3.2 Option of renewal 11
3.3 Holding over 13
4. RENT 13
4.1 Payment of Rent 13
4.2 Rent commencement 13
4.3 Deleted 13
4.4 Market review of Rent 13
4.5 Lessee's dispute of Rent 14
4.6 Maximum increase on review 16
4.7 Fixed Review 16
5. OUTGOINGS 16
5.1 Services 16
5.2 Cleaning 16
5.3 Outgoings 16
5.4 Lessor's estimate 17
5.5 Payments on account 17
5.6 Yearly adjustment 17
5.7 GST 17
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6. USE OF PREMISES 18
6.1 Permitted use 18
6.2 Overloading 18
6.3 Other activities by Lessee 18
6.4 For sale/to let 19
7. MAINTENANCE, REPAIRS, ALTERATIONS AND ADDITIONS 19
7.1 Repairing obligations 19
7.2 Lessor's right of inspection 21
7.3 Enforcement of repairing obligations 21
7.4 Lessor may enter to repair, decontaminate 22
7.5 Deleted 22
7.6 Alterations to Premises 22
7.7 Notice to Lessor of damage, accident etc. 23
7.8 Maintenance contracts 23
7.9 Deleted 23
7.10 Lessee's Fitout and Fittings 23
7.11 Timing for works and compliance with Requirements 23
7.12 Set off procedure 24
8. ASSIGNMENT AND SUB-LETTING 24
8.1 No disposal of Lessee's interest without Consent 24
8.2 Lessor's obligation to Consent 24
8.3 James Hardie Industries N.V. Provisions 24
8.4 Deed 25
8.5 Change in Control 25
9. INSURANCE AND INDEMNITIES 26
9.1 Insurances to be taken out by Lessee 26
9.2 Insurances to be taken out by Lessor 26
9.3 Deductibles 26
9.4 Inflammable substances 27
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9.5 Effect on Lessor's insurances 27
9.6 Insurance Proposal by the Lessee 27
9.7 Indemnities 27
10. DAMAGE, DESTRUCTION AND RESUMPTION 28
10.1 Damage to or destruction of Premises 28
10.2 Resumption of Premises 30
10.3 Liability 30
10.4 Dispute 30
11. LESSOR'S COVENANTS AND WARRANTIES 30
11.1 Quiet enjoyment 30
11.2 Outgoings 30
11.3 Consent of Mortgagee 30
11.4 Deleted 30
11.5 Access 30
11.6 Management of Land 30
11.7 Construction 31
11.8 Competitors 31
11.9 Breach of warranty or covenant 31
12. DEFAULT AND DETERMINATION 31
12.1 Default 31
12.2 Forfeiture of Lease 31
12.3 Waiver 32
12.4 Lessor to mitigate damages 32
12.5 Recovery of damages 32
12.6 Interest on overdue money 32
13. TERMINATION 33
13.1 Yield up 33
13.2 Non Make Good Buildings 33
13.3 Lessee not to cause damage 33
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13.4 Failure by Lessee to remove Lessee's Fitout and Fittings 33
13.5 Failure to remove 34
14. DISPUTES 34
14.1 Appointment of expert 34
14.2 Qualifications of expert 34
14.3 Cost of determination 34
15. ENVIRONMENTAL CONTAMINATION 34
15.1 Lessee's responsibility 34
15.2 Lessor's obligations and indemnity 35
15.3 Remediation by the Lessee if Lessor defaults 36
15.4 Pre-existing UST's 36
15.5 Specific obligations 36
15.6 Recovery from polluter 37
15.7 Acknowledgement 37
16. MISCELLANEOUS 37
16.1 Notices 37
16.2 Stamp Duty, Costs and Registration 37
16.3 Severance 38
16.4 Entire agreement 38
16.5 Governing law 38
17. CONFIDENTIALITY 38
18. SURRENDER OF LEASE 38
18.1 Definitions 38
18.2 Partial surrender 39
18.3 Reduction in area of Premises 39
19. LIMITATION OF LIABILITY 40
19.1 Capacity of Lessor 40
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19.2 Parties may not sue 40
19.3 When limitation does not apply 40
19.4 Failure by third parties 40
19.5 Breach by the Lessor 40
20. TRUST WARRANTIES 41
21. GUARANTEE AND INDEMNITY 41
21.1 Consideration 41
21.2 Guarantee 41
21.3 Indemnity 41
21.4 Interest 42
21.5 Enforcement of rights 42
21.6 Continuing security 42
21.7 Guarantee not affected 42
21.8 Suspension of Guarantor's rights 42
21.9 Reinstatement of guarantee 43
21.10 Costs 43
21.11 Lessor may assign 43
Lessor's Asset Register 49
Make Good Buildings and Non Make Good Buildings Plans 50
Plan of Development Land 51
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THIS IS ANNEXURE B OF 5 PAGES TO THE AMENDMENT BETWEEN AMACA PTY LIMITED (ACN
000 035 512) (LESSOR), JAMES HARDIE AUSTRALIA PTY LIMITED (ACN 084 635 558)
(LESSEE) AND JAMES HARDIE INDUSTRIES N.V. (ARBN 097 829 895) (GUARANTOR) DATED
23 MARCH 2004
LESSOR'S ASSET REGISTER
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and Water Act 2000 ADDITIONAL PAGE/DECLARATION
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THIS IS ANNEXURE C OF 3 PAGES TO THE AMENDMENT BETWEEN AMACA PTY LIMITED (ACN
000 035 512) (LESSOR), JAMES HARDIE AUSTRALIA PTY LIMITED (ACN 084 635 558)
(LESSEE) AND JAMES HARDIE INDUSTRIES N.V. (ARBN 097 829 895) (GUARANTOR) DATED
23 MARCH 2004
MAKE GOOD BUILDINGS AND NON MAKE GOOD BUILDINGS PLANS
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and Water Act 2000 ADDITIONAL PAGE/DECLARATION
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THIS IS ANNEXURE D OF 2 PAGES TO THE AMENDMENT BETWEEN AMACA PTY LIMITED (ACN
000 035 512) (LESSOR), JAMES HARDIE AUSTRALIA PTY LIMITED (ACN 084 635 558)
(LESSEE) AND JAMES HARDIE INDUSTRIES N.V. (ARBN 097 829 895) (GUARANTOR) DATED
23 MARCH 2004
PLAN OF DEVELOPMENT LAND