EXHIBIT 4.23
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AMENDMENT
Dealing Number 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.
1. TYPE/DEALING NO OF INSTRUMENT/DOCUMENT BEING AMENDED LODGER (Name, address & phone number) LODGER
Type of Instrument/Document Lease Allens Arthur Robinson CODE
Dealing Number 706009769 Lawyers
123 Eagle Street Brisbane 4000 024
Tel: (07) 3334 4000
Ref: NJCS:XXFS:205068399
2. LOT ON PLAN DESCRIPTION COUNTY PARISH TITLE REFERENCE
Lot 27 on RP 34120 and Lot 2 on RP Stanley Toombul 15944054
34121
Lot 3 on RP 199034 Stanley Toombul 17103067
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
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Director Signature
Peter Edward John Jollie........ Full Name
/s/ Dennis John Cooper
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Director/Secretary Signature
Dennis John Cooper.............. Full Name
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EXECUTION DATE LESSEE'S SIGNATURE
17/ 03 / 2004 Signed for JAMES HARDIE AUSTRALIA PTY
LIMITED by its attorney under power of
attorney registered No. 707564405
dated 12 March 2004 in the presence of:
/s/ Joanne Marchione
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Attorney Signature
Joanne Marchione.............. Full Name
/s/ Josie Hui
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Witness Signature
Josie Hui..................... Full Name
EXECUTION DATE GUARANTOR'S SIGNATURE
17/ 03 / 2004 SIGNED for JAMES HARDIE INDUSTRIES N.V. by
its attorney under power of attorney
registered No. 707564412 dated 12 March 2004
in the presence of:
/s/ Joanne Marchione
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Attorney Signature
Joanne Marchione...............Print Name
/s/ Josie Hui
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Witness Signature
Josie Hui......................Print Name
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TITLE REFERENCE 15944054 AND 17103067
This is the Schedule to the Form 13 Amendment dated 23 March 2004.
Lease 706009769 (as varied by Amendment 706009780) 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 annexure B of this Amendment as annexure B of the lease; and
3. insert the following as the Schedule to the lease.
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 Certificates of Title 15944054 and 17103067
4. Premises The Land, buildings and other improvements situated at 46 Randle Road,
Meeandah, 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 $400,000.00 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 than 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 of review
Further Term 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 Brisbane 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.
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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
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.
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.
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;
(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,
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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).
TERMINATING DATE means:
(a) the date specified in Item 7;
(b) any earlier date on which this Lease is determined;
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(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:
(iii) 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
(iv) 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.
(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.
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(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.
(t) (BODIES AND AUTHORITIES)
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(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
(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:
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(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 Term for a
period of up to 3 months after the Lessor's notice of
assessment of Market Rent is received by the Lessee.
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(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.
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.
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(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.
(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;
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(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) (ASSUMPTION) 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
(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.
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(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 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.
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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;
(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.
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(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:
(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.
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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, to the extent required by clauses
7.1(d) and 13; 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; and
(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
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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:
(i) if 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;
or
(ii) if 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) if 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.
(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 the
relevant part of the Premises together with
the Termination Payment; and
(B) in determining the area to be partially
surrendered the Lessee must:
(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
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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.
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
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(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 which materially increase the footprint of the
Buildings on the Premises, 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:
(i) 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; and
(ii) which involves the Lessee installing the following
items:
(A) inverted box culvert sections along the
western drain within the Premises;
(B) block retaining wall; and
(C) sprayed concrete drain batter lining,
and the Lessee agrees to do this work promptly after the
Effective Date.
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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 the
timetable set out in the relevant Requirement to which any
works relate; and
(b) subject to clause 7.11(a), 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) applies; 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 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
During any construction 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;
(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:
(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
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(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
(iv) (RECOVERY) be recoverable in the same manner as Rent
in arrears.
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13. TERMINATION
13.1 YIELD UP
In relation to the Premises, at the Terminating Date:
(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) (REMOVE BUILDINGS) where, after removal of the Lessee's Fitout
and Fittings, 50% or less of the relevant Building to which
the Lessee's Fitout and Fittings was attached remains, the
Lessee must demolish the balance of the affected Building and
remove any debris from the Premises; and
(c) (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 13.1(a) and
(b).
13.2 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 clause 13.1
or following determination under clause 12.2, within 30 Business Days
of notice to 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 13.2.
13.3 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 clause 13.1
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.
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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(a) and (b) 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.
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
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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.
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.
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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 and
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
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;
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(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.
(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
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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. LIMITATION OF LIABILITY
18.1 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 18.3 ("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.
18.2 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).
18.3 WHEN LIMITATION DOES NOT APPLY
Clauses 18.1 and 18.2 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.
18.4 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 18.3 ("When limitation does not apply") or 18.5 ("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).
18.5 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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19. 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.
20. GUARANTEE AND INDEMNITY
20.1 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.
20.2 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.
20.3 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.
20.4 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.
20.5 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.
20.6 CONTINUING SECURITY
This guarantee and indemnity is a continuing security and is not
discharged by any one payment.
20.7 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.
20.8 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.
20.9 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.
20.10 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 20.10 then
against other obligations under this guarantee and indemnity.
20.11 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 13
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 21
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 Failure by Lessee to remove Lessee's Fitout and Fittings 33
13.3 Failure to remove 33
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14. DISPUTES 33
14.1 Appointment of expert 33
14.2 Qualifications of expert 33
14.3 Cost of determination 34
15. ENVIRONMENTAL CONTAMINATION 34
15.1 Lessee's responsibility 34
15.2 Lessor's obligations and indemnity 34
15.3 Remediation by the Lessee if Lessor defaults 35
15.4 Pre-existing UST's 35
15.5 Specific obligations 36
15.6 Recovery from polluter 36
15.7 Acknowledgement 36
16. MISCELLANEOUS 36
16.1 Notices 36
16.2 Stamp Duty, Costs and Registration 37
16.3 Severance 37
16.4 Entire agreement 37
16.5 Governing law 37
17. CONFIDENTIALITY 37
18. LIMITATION OF LIABILITY 38
18.1 Capacity of Lessor 38
18.2 Parties may not sue 38
18.3 When limitation does not apply 38
18.4 Failure by third parties 38
18.5 Breach by the Lessor 38
19. TRUST WARRANTIES 39
20. GUARANTEE AND INDEMNITY 39
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20.1 Consideration 39
20.2 Guarantee 39
20.3 Indemnity 39
20.4 Interest 40
20.5 Enforcement of rights 40
20.6 Continuing security 40
20.7 Guarantee not affected 40
20.8 Suspension of Guarantor's rights 40
20.9 Reinstatement of guarantee 41
20.10 Costs 41
20.11 Lessor may assign 41
Lessor's Asset Register 47
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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
MARCH 2004
LESSOR'S ASSET REGISTER