DATED 10 October 1995
ENFIELD VIEW PTY LTD
A.C.N. 007 382 603
Lessor
and
RECOIL PTY LTD
A.C.N. 006 664 731
Lessee
--------------------
LEASE
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Premises: 00 Xxxxxxxx Xxxx,
Xxxxxxxx
XXXXXXXX XXXX
SOLICITORS
LEVEL 10
000 XXXXXXXX XXXXXX
XXXXXXXXX XXX 0000
AUSDOC DX 117
TEL: 000 0000
FAX: 000 0000
REF: TB:RAFW:914603
LEASE
THIS LEASE is made the 10th day of October 1995
BETWEEN ENFIELD VIEW PTY LTD (A.C.N. 007 382 603)
of 0000 Xxxxxxx Xxxxxxx, Xxxxxxx xx xxx Xxxxx xx Xxxxxxxx
("Lessor")
AND RECOIL PTY LTD (A.C.N. 006 664 731)
of 0 Xxxxxxxx Xxxx Xxxxx, Xxxxxxxx in the State of Victoria
("Lessee")
RECITALS
In consideration of the rent herein reserved and of the covenants and agreements
by the Lessee contained in this Lease, the Lessor on and subject to the
following covenants, terms, conditions and provisos:
A. HEREBY LEASES to the Lessee ALL THOSE premises (herein called the "Demised
Premises") more particularly described in Item 1 of the Schedule together
with the right to the Lessee, its servants, agents and invitees to use the
chattels described in Item 10 of the Schedule (if any) and for the term
described in Item 5 of the Schedule commencing on the commencement date set
out in Item 9 of the Schedule and at the rental set out in Item 3 of the
Schedule and as increased or reviewed in accordance with the provisions
hereof.
B. RESERVES to the Lessor and persons claiming through or authorized by it the
use of exterior walls the roof and right to install, maintain, use, repair,
alter and replace pipes, ducts, conduits and wires leading through the
premises and to pass and run water, air, electricity, sewerage, drainage,
gas and other services through such pipes, ducts, conduits and wires and to
enter upon the premises for such purpose provided that (except as
hereinafter provided) in exercising such rights as aforesaid the Lessor
shall not interfere with the Lessee in its use and occupation of the
Demised Premises more than is reasonably necessary.
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Lease and in any Rules and Regulations made hereunder or
annexed hereto the following expressions shall have the meanings
hereinafter respectively assigned to them unless the contrary
intention appears:
"Demised Premises" -- the Demised Premises described in Item 1 of the
Schedule and shall include, where appropriate, the building erected on
the land;
"Lease" -- this Lease and any annexures and schedules relating hereto;
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"Lessee" -- includes the Lessee, its successors and permitted assigns
and where not repugnant to the context the servants and agents of the
Lessee;
"Lessor" -- includes the Lessor, its successors and assigns and where
not repugnant to the context its servants and agents;
"Lessor's Premises" -- the premises situated at 00 Xxxxxxxx Xxxx,
Xxxxxxxx in the State of Victoria together with the fixtures,
fittings, furnishings, plant, machinery, equipment and Mechanical
Installations of the Lessor therein from time to time;
"Mechanical Installations" -- includes air conditioning and any other
plant, machinery or equipment for heating or cooling or circulating
air; exhaust and ventilation plant; fire alarm; fire fighting
equipment; sprinklers and any other machine, plant or equipment now or
hereafter installed at the Demised Premises;
"Outgoings" -- (to the extent to which the same are not specifically
payable from time to time by any Lessee or Licensee of any part
thereof) the total cost of all outgoings costs and expenses of the
Lessor now or hereinafter properly assessed, charged or chargeable,
paid or payable or otherwise incurred upon or in respect of the
Demised Premises and/or upon the Lessor in relation thereto or in the
conduct, management, repair and maintenance of the Demised Premises
and to the use and occupation of the same for the use described in
Item 2 of the Schedule and/or the other facilities pertaining thereto
and in particular but without limiting the generality of the
foregoing, includes:
1.1.1 all taxes payable in respect of the Lessor's Premises and/or
Demised Premises or in respect of the Lessor's ownership or
occupancy thereof but excluding income tax payable by the
Lessor on its income. The Lessee shall hereunder reimburse or
indemnify the Lessor for the Lessee's proportion of State Land
Tax or liability therefore (as the case may be) in respect of
the Lessor's Premises, calculated on the basis that such land
is the only land of which the Lessor is the owner within the
meaning of the Land Tax Act;
1.1.2 all rates, charges, assessments, duties, impositions and fees
of any public, municipal or government body, authority or
department charges, imposed or assessed on or in respect of the
Demised Premises;
1.1.3 all insurance premiums payable by the Lessor in respect of the
Demised Premises and fixtures and fittings, to the full
insurable replacement value thereof, against fire, flood,
lightning, storm and tempest, aircraft and other accident and
such other insurances including the removal of debris and other
risks as the Lessor may
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deem necessary or desirable in relation to the Demised Premises
or the Lessor's ownership or interest therein as set out in
Clause 2.5;
1.1.4 all charges for water (including any excess water charges),
gas, oil, electricity, light, power, fuel, telecommunications,
sewerage, garbage, pest control and other services or
requirements furnished or supplied to the Demised Premises for
the general benefit or purpose of the Demised Premises;
1.1.5 the costs of repairs, painting, maintenance and renovations of
and to the Lessor's Premises (except work of a structural
nature) unless such work arises from the use of the premises by
the Lessee; and
1.1.6 the costs including running costs, repairs and maintenance of
lighting, elevators, fire alarm, fire fighting equipment,
sprinklers and all other Mechanical Installations.
"Yearly Rent" - the amount set out in Item 3 of the Schedule and
multiplied by twelve including any alteration thereto pursuant to
Clause 2.2 and Annexure 1.
1.2 Interpretation
Words importing the singular number include the plural and the
masculine gender the feminine or neuter and vice versa and words
importing the persons include corporations and vice versa.
Any covenant or agreement on the part of two or more persons shall be
deemed to bind them jointly and severally.
Reference to a statute or ordinance includes all regulations under and
amendments to that statute or ordinance whether by subsequent statute
or otherwise and a statute or otherwise and a statute or ordinance
passed in substitution for the statute or ordinance referred to or
incorporating any of its provisions.
Headings have been inserted for guidance only and shall not be deemed
to form any part of the context of this Lease.
Where under or pursuant to this Lease or anything done hereunder, the
day on or by which any act, matter or thing is to be done is a
Saturday or a Sunday or a public holiday in the State or place in
which the Demised Premises are situated, such act, matter or thing may
be done on the next succeeding day which is not a Saturday, Sunday or
a public holiday.
References to Clauses and Schedules are to clauses of and schedules to
this Lease.
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2. LESSEE'S COVENANTS
THE LESSEE FOR HIMSELF AND HIS SUCCESSORS AND PERMITTED ASSIGNS AND TO
THE EXTENT THAT THE OBLIGATIONS MAY CONTINUE THROUGHOUT THE
CONTINUANCE OF THE LEASE, DOES HEREBY COVENANT WITH THE LESSOR AS
FOLLOWS:
2.1 Rent
To pay the Lessor the sum set out in Item 3 of the Schedule, as
adjusted from time to time in accordance with Clause 2.2,
monthly in advance on the first day of each month, without any
set-off (whether arising at law or in equity) and clear of all
deductions whether demanded or not and if the said commencement
date shall be other than on the first day of a month then by a
proportionate payment for any broken period calculated from the
commencement date to the first day of the month next ensuing
the commencement date or from the first day of the last month
of the term hereby created to the end of the said term as the
case may be.
2.2 Rent Review
The rent payable by the Lessee pursuant to the Lease or any
renewal or extension thereof shall be the sum or sums set out
in Item 3 of the Schedule PROVIDED THAT the rental shall be
increased, as and from the date or dates set out in Item 4 of
the Schedule hereto as a rent review date, by an amount by
which the yearly rent payable immediately prior to the review
date shall be multiplied by a fraction whereof the denominator
shall be 100 and the numerator shall be 104 and this sum shall
be the annual rent payable from the rent review date for the
twelve month period thereafter.
2.3 Rates, Taxes and Outgoings
2.3.1 To pay and bear as from the commencement date for the term
hereof, all existing and future rates (including special
parking rates and garbage collection rates whether municipal or
otherwise) taxes, assessments, charges and Outgoings (whether
parliamentary, semi-governmental or otherwise) now or hereafter
imposed or charged on the owner or occupier in respect of the
Demised Premises. If the Demised Premises are not separately
rated, taxed, assessed or charged or the Outgoings relate to an
area larger than the Demised Premises, the whole of such rates,
taxes, assessments, charges or Outgoings shall be apportioned
and the Lessee shall pay a proportion of the amount such
proportion being equal to the area that the Demised Premises
bears to the total lettable area of the property (of which the
Demised Premises form part) so rated or assessed or to which
the Outgoings relate.
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2.3.2 Notwithstanding anything herein contained, the Lessor may from
time to time notify the Lessee of the Lessee's proportion of
Outgoings for any period not exceeding one (1) year in advance
of the estimate, whereupon the Lessee will pay during such
period, the estimate by equal monthly installments in advance
on the days and in the manner fixed for payment of the rent,
provided that at the end of the then current year, the actual
Outgoings shall be made and any refund to or further payment by
the Lessee shall be allowed or made.
2.4 General Positive Covenants
2.4.1 Consumables
To pay all charges in respect of electric supply, gas supply or
power used on the Demised Premises and any water charges
(including any excess water charges) and telecommunications,
rentals and other charges in respect of the Demised Premises.
2.4.2 Clean the Premises
To pay the costs of maintenance and cleaning of the Demised
Premises and if the Lessee does not clean the Demised Premises
by its own staff then the Lessee shall engage for this purpose
the cleaning contractor (if any for the time being) of the
Lessor's property of which the Demised Premises form part.
2.4.3 Repair and Maintain
From time to time throughout the said term, as often as the
occasion shall require, at his own cost and expense to repair,
maintain and keep the Demised Premises (including the locks,
keys, windows, glass (internal and external) and fixtures all
sewerage fittings and pipes and all Mechanical Installations
serving the Demised Premises) in as good and substantial
repair, order and condition as the same now are with all
necessary reparations, clearings and amendments whatsoever,
when and where and as often as the same shall be requisite
during the said term provided that damage by fair wear and tear
or fire alone shall be excepted unless the Lessee and his
servants or agents invitees or charges or any of them shall
have suffered or omitted something by reason whereof the Lessor
shall be deprived of the benefit of any insurance on the
Demised Premises and provided that it shall be the
responsibility of the Lessor at the Lessor's own cost to ensure
that at all times the air conditioning plant complies with any
law from time to time applicable to refrigerants.
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2.4.4 Clean Windows
To regularly clean thoroughly all windows in or upon the
Demised Premises.
2.4.5 Make Good Damage
To pay for and make good all damage which may be caused to the
Demised Premises or any part thereof by reason of any gas or
water taps, electric current, appliances or fittings in the
Demised Premises being left on or open or mismanaged in any
way.
2.4.6 Repair Damage Caused to Adjoining Premises
From time to time make good any defect or damage to any
adjoining premises or other premises or any facility or
appurtenance thereof occasioned by any neglect want of care,
misuse or abuse on the part of the Lessee or the Lessee's
agents, contractors, customers, invitees or other persons
claiming through or under the Lessee or otherwise occasioned by
any breach or default of the Lessee hereunder.
2.4.7 Disposal of Rubbish
At all times during the term, store and keep all trade waste,
trash and garbage in proper receptacles kept within such space
or area in or about the Demised Premises as shall from time to
time be reasonably designated or notified by the Lessor and to
arrange for the disposal thereof and at all times refrain from
throwing or dropping from the Demised Premises or depositing or
leaving in the Demised Premises any such trade waste, trash and
garbage.
2.4.8 Notice of Defects
To give to the Lessor immediate notice in writing of any
accident or defects in the water pipes, gas pipes, electric
light appliances or fittings installed in or upon the Demised
Premises.
2.4.9 Comply with Acts
At the Lessee's own expense to comply in all respects with all
such provisions of the Health Act, Melbourne and Metropolitan
Board of Works Act and the Labour and Industry Act for the time
being in force and all present and future amendments thereof
respectively and with the provisions of all Acts of Parliament,
Regulations, Rules and By-Laws now or hereafter in force as
shall be necessitated by the business being conducted in or the
use by
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the Lessee of the Demised Premises and to do all acts, works,
cleansings and other things that may be necessary or ordered to
be done under any Act or Regulation or By-Law affecting
buildings of the type of the Demised Premises (and/or the
building of which the Demised Premises forms part as the case
may be) and/or public health and for the time being in force in
the said State relating to the carrying on of the business or
purpose of the Lessee upon the Demised Premises or the
employment of persons connected therewith or that may be
required by the Melbourne Water Corporation and the relevant
Municipal or Shire Authority or any Health Officer, Inspector
or other local or Public Authority but nothing herein contained
shall require the Lessee to make, provide or pay for any
structural alterations or additions to the Demised Premises
unless such structural alterations or additions are
necessitated by the nature of the business conducted or use by
the Lessee upon or of the Demised Premises or by the number or
sex of persons employed or lawfully present therein or by any
act, neglect or default of the Lessee or his agents, servants,
employees, charges, invitees or any other person claiming
through or under the Lessee.
2.4.10 Use of Premises
To use the Demised Premises in a fair and tenantable manner and
for the permitted use set out in Item 2 of the Schedule only.
2.4.11 Inspection
To allow the Lessor and his agents, architects, surveyors and
workmen, upon giving the Lessee forty-eight (48) hours notice
to have access at all reasonable times to the Demised Premises
and to all services passing through over or along the Demised
Premises, but at any time without notice in the case of
emergency, to inspect the same and every part thereof and to do
such work therein or in respect of the Demised Premises or any
part thereof as the Lessor may require to do and the Lessee
shall forthwith after receipt of notice in writing from the
Lessor properly effect any repairs, reparations and cleansings
for which the Lessee is liable hereunder PROVIDED ALWAYS that
if at any time the Lessee fails to comply with the terms of
such notice within fourteen days after service thereof the
Lessor may with or without workmen or others enter upon the
Demised Premises and do all things necessary to effect the
repairs or cleansings and any moneys expended by the Lessor for
that purpose shall be recoverable by the Lessor against the
Lessee as money paid by him at the Lessee's request by an
action at law or by distress as for rent in arrears. The Lessee
will ensure that the Lessor has been provided with and
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is in possession of all keys and/or entrance devices required
to gain access into the Demised Premises from time to time.
2.4.12 Maintenance and Alteration
To permit the Lessor and its architects, contractors, workmen
and others at all times on reasonable notice to enter upon the
Demised Premises and carry out repairs, improvements,
maintenance, alterations and other work (including work of a
structural nature) to the Demised Premises or to any part
thereof in compliance with the Lessor's obligations under the
provisions of this Lease or otherwise deemed necessary or
desirable by the Lessor PROVIDED ALWAYS that in the exercise of
any such power the Lessor will endeavour to avoid unduly
inconveniencing the Lessee.
2.4.13 Lessor's Costs
To pay the Lessor's reasonable costs, charges, fees and
expenses of and incidental to the preparation, completion and
execution of this Lease and all counterparts thereof and any
extension or renewal thereof and any guarantee and any other
ancillary agreements and to pay all stamp duty and registration
fees (if any) thereon.
2.4.14 Costs of Default
To pay on demand, all moneys, costs, charges and expenses which
the Lessor may incur or expend in consequence of any default in
the performance or observance of any covenant or agreement
herein contained on the part of the Lessee to be performed or
observed or under or in the exercise or enforcement or
attempted exercise or enforcement of any power or authority
herein contained or in consequence of any lawful request by the
Lessor under any covenant or condition herein contained
immediately the Lessor shall have paid, expended or incurred
the same and if such costs are legal costs these shall be
charged at the appropriate scale operating from time to time.
2.4.15 Interest on Default
To pay to the Lessor in respect of any amount due by the Lessee
to the Lessor, at the rate which is the aggregate of three per
centum (3 %) and the Indicator Lending Rate from time to time
quoted by the Lessor's banker at the relevant date for
commercial overdraft accommodation exceeding $100,000-00
calculated daily from the date upon which the same fell due for
payment until the same shall have been paid.
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2.4.16 Exhibit "To Let" Sign
During the last six months of the said term and at any time
during any holding over or extension thereof to permit the
Lessor or the Lessor's agents or workmen or any of them to
enter upon the Demised Premises and to exhibit and to put upon
them notices "To Let" which notices shall not be removed by the
Lessee without the written permission of the Lessor.
2.4.17 Inspection at End of Term
During the last six months of the said term and at any time
during any holding over or extension thereof to permit the
Lessor's agent and any person or persons if accompanied by the
Lessor or the Lessor's agent or with the Lessor's written
authority, upon giving the Lessee forty-eight (48) hours
notice, to inspect the Demised Premises at any time between the
hours of 9:00am and 5:00pm, but at any time without notice in
the case of emergency, and at the expiration or earlier
determination of the tenancy to give peaceable possession of
the same to the Lessor.
2.4.18 Keep Premises Open
At all times throughout the said term during normal business
hours pertaining to the said permitted use, to keep the Demised
Premises open for the permitted use referred to and not without
the consent in writing of the Lessor to leave the Demised
Premises unoccupied during the said term AND if the permitted
use or purpose referred to relates to or concerns the conduct
of a business thereon, to use his best endeavours to carry on
and conduct the said business in a proper and efficient manner
AND in the event of the said business not being so conducted or
not conducted at all or the Demised Premises being unoccupied
or unopened as the case may be the total rental for the said
term or period shall immediately become due and payable and
such sum shall be recoverable by the Lessor from the Lessee by
an action at law or by distress as for rent in arrears. This
provision is in addition to and not in derogation of any other
right or remedy available to the Lessor.
2.4.19 Locking of Property
To ensure that all doors windows and other entrances are
securely locked in the event of entering or leaving the Demised
Premises (and/or the building of which the Demised Premises
forms part as the case may be) outside the usual and normal
hours during which such doors and other entrances are kept
open.
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2.4.20 Garden
To attend to the garden (if any) of the Demised Premises and
every part thereof and to ensure that the same is attended to
regularly and in particular to ensure that the Demised Premises
is of neat appearance and free from weeds and excess growth.
2.4.21 Delivering Up
At the expiration or sooner determination of the term hereby
created quietly to deliver up to the Lessor the Demised
Premises in good and substantial repair order and condition as
the same are at the commencement of occupancy by the Lessee or
any predecessor of the Lessee pursuant to this Lease or any
other lease of which this Lease is a result due to the exercise
of an option for a further term with the glass all whole in the
windows, doors, electric light globes, fixtures and fittings in
good order and condition and in particular with the walls and
ceiling free of grease, dirt, excess paint or other material
detrimental to or detracting from the good appearance thereof
including any rubbish, damage by fair wear and tear or fire
alone excepted as aforesaid.
2.4.22 Xxxxxx's Works
To carry out any works, repairs, alterations or additions
required to be done by the Lessee pursuant to the Lease in a
professional and workmanlike manner in accordance with the
instructions given by the Lessor's architect and to the
reasonable satisfaction of the Lessor.
2.5 Insurance
2.5.1 Insurance Charges
To pay or reimburse (as the case requires) the Lessor forthwith
on demand being made by the Lessor so as to do the cost of all
premiums, stamp duty levies and other like expenses
(hereinafter called "the premiums") in respect of such of the
policies of insurance referred to below which are already taken
out by the Lessor in respect of the Lessor's Premises of which
the Demised Premises form part as from the commencement date of
the term hereby created for the term hereof and any renewal or
extension thereof and to take out any of the policies listed
below which are not so taken out by the Lessor such policies to
be taken out by the Lessee in the names of the Lessor and the
Lessee for their respective rights and interest and in the
names of such other persons, firm or corporation as may be
designated by the Lessor including any mortgagee of the Demised
Premises, and at the
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Lessee's expenses with such insurance company as the Lessor
shall approve for the replacement value or for such other
amount as herein specified or as the Lessor shall reasonably
direct the policies taken out by the Lessee to be kept in full
force and effect during the continuance of this Lease and the
Lessee shall produce a receipt for every premium payment and
Certificates of Currency in respect of each of such policies to
the Lessor on or before the commencement date and at least
fourteen (14) days prior to the renewal date of such policies
AND in any event, the Lessee will cause the original Policies
or a true copy of each of them to be delivered to the Lessor
immediately the same are issued by the Insurance Company, the
said policies are:
(a) an insurance policy covering inter alia damage by fire
extended to include damage by explosion, storm and
tempest, riots, strikes and malicious damage,
earthquake, impact by all vehicles, aircraft, internal
water and flood for the full replacement value of all
of the Lessee's fixtures, fittings and stock contained
in the Demised Premises;
(b) an insurance policy covering inter alia damage by fire
extended to include damage by explosion, storm and
tempest, riots, strikes and malicious damage,
earthquake, impact by all vehicles, aircraft, internal
water and flood for the full replacement value of the
Demised Premises and the Lessor's fixtures and fittings
(if any) therein and further extended to include
clearance of debris and loss of rent including
Outgoings paid by Lessee;
(c) an insurance policy against breakage for the
replacement value of all plate glass now or hereafter
installed in or affixed to or forming part of the
Demised Premises;
(d) a Lessor's owner's public liability insurance policy
for a cover of at least Five Million Dollars
($5,000,000-00), or such other sum as the Lessor may
reasonably advise by notice in writing;
(e) a Lessee's/occupier's public liability insurance policy
for a cover of at least Five Million Dollars
($5,000,000-00), or such other sum as the Lessor may
reasonably advise by notice in writing; and
(f) an insurance policy against breakdown of all machinery
plant equipment or device whether mechanical electrical
or of whatsoever other nature installed in or affixed
to or forming part of the Demised Premises.
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2.5.2 Pay or Reimburse
For the purpose of this covenant the Lessee shall pay to or
reimburse (as the case requires) the Lessor the whole of the
premiums relating to any of the above insurance policies taken
out by the Lessor which relate to the Demised Premises.
2.5.3 Application of Insurance Money
In the case of any loss or damage arising from any cause
covered by the insurance as referred to in Clause 2.5.1, the
Lessee shall immediately make a claim under the relevant
insurance policy and apply and expend the moneys received by
virtue of such insurances in restoring, replacing, repairing or
reinstating the same and where such moneys shall be
insufficient for that purpose, the Lessee shall pay the balance
out of his own money.
2.5.4 Insurance against storage of Hazardous Chemicals
The Lessee shall ensure that all risks relating to the storage
or use of hazardous chemicals on Demised Premises in accordance
with Clause 2.6.8 are to be covered by the policies of
insurance referred to in Clause 2.5.1.
2.6 General Negative Covenants
2.6.1 Not to Sleep on Premises
Not to sleep or suffer anyone to sleep in or upon the Demised
Premises or use or permit the use of same or any part thereof
for residential purposes save for and in the manner permitted
by the relevant authority (if any) registering the Demised
Premises for the said permitted use.
2.6.2 No Illegal Immoral Purpose
Not to use or permit or suffer the use of the same for any
illegal, immoral or improper purpose.
2.6.3 No Rubbish
Not to allow rubbish or useless property to accumulate thereon.
2.6.4 No Alterations/Additions
Not without written consent to make, suffer or permit any
alteration or addition whatsoever to be made to any part of the
Demised Premises nor drive any nails, screws or other fixing
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material into any part of the Demised Premises nor use any
adhesive material on the walls thereof.
2.6.5 Not to Vitiate Insurance
Not to do or permit to be done anything whereby the policy or
policies of insurance on the Demised Premises for the time
being subsisting may become void or voidable or whereby the
rate of premium thereon may be increased and to pay all
increased premiums and all expenses incurred by the Lessor in
the renewal of such policy or policies rendered necessary by
breach of this covenant.
2.6.6 No Noxious Offensive Business
Not to use or permit to be used the Demised Premises or any
part thereof for or carry on offensive, noxious, hazardous or
noisy business or occupation nor for the purpose or in any
manner which may be a nuisance or annoyance to the other
tenants or occupiers (if any) of the Demised Premises, the
Lessor's Premises or the adjoining occupiers or owners and not
to do or permit to be done any act or things that may be
contrary to the laws of health or the regulations or by-laws of
the Department of Health, relevant Municipal or Shire Authority
or other Authority in relation to the Demised Premises.
2.6.7 No Auction Sale
Not to conduct or permit to be conducted upon the Demised
Premises or any part thereof any auction, sale, teaching
practice or rendering of any music whatsoever or classes for
any kind of teaching or instruction whatsoever save for the
permitted use of the Demised Premises without the prior consent
in writing of the Lessor.
2.6.8 Hazardous Chemicals
Not to keep or permit to be kept or used on the Demised
Premises any chemical fluids or materials of a dangerous or
explosive nature, the keeping of which may contravene any
statute or regulation or by-law or constitute a nuisance to the
Lessor or the occupiers of neighbouring property.
2.6.9 Approved Heating
Not to use any method of heating other than that approved of by
the Lessor and then not without the prior consent in writing of
the Lessor.
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2.6.10 No Animals
Not to bring or keep or permit to be brought or kept any
animals or birds on, in or about the Demised Premises.
2.6.11 No Sweeping
Not to throw or permit to be thrown any sweeping rubbish, rags,
ashes or any other substances whether or not of the same genus
or class of the substances aforesaid out of the windows or
doors or into the water closet or closets or other water
reticulation sewerage or drainage apparatus of the Demised
Premises and/or the Lessor's Premises.
2.6.12 No Noise
Not to make or permit any of the employees, agents, charges or
invitees of the Lessee to make any improper noises in the
Demised Premises nor interfere with or annoy or permit to be
interfered with or annoyed in any way other occupiers (if any)
of the Demised Premises and/or the Lessor's Premises or any
persons having lawfully entered therein.
2.6.13 Signs
(a) Not to inscribe, paint, write or affix on or to, as the
case may be, the Demised Premises or any part thereof
or any building of which the Demised Premises form part
or any part thereof any writing, lettering, sign,
signboard, plate, name, placard, notice or neon or
other type of electric sign (all of which without
limiting their generality are hereinafter referred to
as "such signs") without first obtaining the written
approval of the Lessor, whose approval shall not be
unreasonably withheld, to its position size colour and
design and in all other respects and obtaining all
necessary permits from the relevant authorities in
respect of same.
(b) During the currency of the term hereof or any renewal
or extension thereof the Lessee shall continue to
maintain such sign in good order, repair and
appearance.
(c) Upon the expiration or earlier determination of the
term hereby created (or later upon the renewal or
extension thereof as the case may be) or earlier at the
Lessee's election the Lessee shall forthwith remove
such sign, make good any damage or loss occasioned by
such removal and reinstate and restore the Demised
Premises
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and/or any building (of which the Demised Premises form
part) damaged or affected by the removal of such sign
to the same standard and condition subsisting on the
day before the Lessee commenced erecting such sign.
2.6.14 Damage to the Demised Premises
Not to do or permit to be done anything whereby the Demised
Premises or any part thereof, fair wear and tear alone
excepted, may be damaged or strained or the walls thereof
caused to sag from their right lines.
2.7 Assignment Mortgage and/or Parting with Possession
2.7.1 Provisions for Assignment, etc.
Not at any time or times to mortgage, assign, transfer, sublet,
part with possession or to give any person, firm or corporation
a licence to use or occupy the Demised Premises or any part
thereof without the consent in writing of the Lessor first had
and obtained PROVIDED THAT:
(a) the Lessor shall not withhold such consent to the
assignment of the whole of the Demised Premises if the
Lessee is not in breach of any of the covenants or
conditions herein contained and the proposed assignee
is a respectable, responsible and solvent person the
onus of proving which shall be on the Lessee;
(b) if the proposed assignee or sub-lessee should be a firm
or corporation, the Lessor may at its sole discretion
require a Guarantor of the due performance and
observance by the proposed assignee or sub-lessee of
the Lessee's covenants in this Lease, to execute such
form of guarantee and indemnity as the Lessor may
require or approve;
(c) the Lessor shall be entitled to refuse or withhold
consent to the assigning of part or to the sub-letting
of the Demised Premises and in respect of this further
proviso Section 144 of the Property Law Act 1958 is
hereby negatived;
(d) the Lessor shall in no way be liable or responsible for
any alterations or modifications to the Demised
Premises which may be necessary or required by relevant
authorities in the event of the Lessee sub-letting the
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Demised Premises the whole of which burden shall lie
with the Lessee;
(e) the Lessee shall procure the execution by such person
of an assignment of this Lease to which the Lessor
shall be a party in such form as the Lessor and/or his
solicitors shall approve of and in which shall be
repeated by such assignee with the Lessor the several
conditions, covenants, agreements, stipulations and
powers herein expressed or such of the said covenants,
agreements, stipulations and powers herein expressed or
such of the said covenants, agreements, stipulations
and powers as may be required by the Lessor and/or his
solicitors such assignment to be perused by the Lessor
and/or his solicitors at the cost and expense in all
respects of the person requiring such consent and an
executed copy of such assignment duly stamped shall be
delivered to the Lessor;
(f) the Lessee shall also pay to the Lessor all reasonable
costs, charges and expenses incurred by the Lessor of
and incidental to the perusal of the assignment and
enquiries in relation to the respectability,
responsibility and solvency of the proposed assignee;
(g) the liability of the Lessee under this Lease shall not
be released by such assignment and the Lessee shall
provide to the Lessor, a guarantee and indemnity in the
form required by the Lessor guaranteeing performance by
the assignee of the obligations under this term or any
further term of this Lease renewed pursuant to an
option for renewal contained herein or provided for
herein.
2.7.2 Lessee Corporation
If the Lessee is a duly incorporated company and if at any time
hereafter the majority of the shares therein cease to be held
beneficially and according to the Share Register (except as a
result of transfers by inheritance) by the person or persons
who held such majority at the date of execution of this Lease
then -
(a) the Lessee shall immediately notify the Lessor of such
changes in shareholdings;
(b) such change of shareholdings shall be deemed to
constitute an assignment of this Lease and the
provisions of Clause 2.7.1 shall apply; and
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(c) this provision shall not apply wherever the Lessee is a
company the voting shares of which are listed on a
recognised Stock Exchange in Australia or if at least
80% of its voting shares are owned by another company
the voting shares of which are so listed.
3. LESSOR'S COVENANTS
THE LESSOR DOES HEREBY COVENANT WITH THE LESSEE AS FOLLOWS:
3.1 Quiet Enjoyment
That the Lessee paying the rent hereby reserved on days and times and
in the manner hereinbefore mentioned and observing and performing the
several covenants, conditions and stipulations hereinbefore contained
and on the part of the Lessee to be observed and performed shall and
may peaceably and quietly hold and enjoy the premises hereby demised
during the term hereby granted without any disturbance, eviction or
interruption by the Lessor or any person claiming through or under
him.
3.2 Comply With Terms
To comply with the terms or conditions on the part of the Lessor to be
observed, if any, set out herein.
3.3 Structural Maintenance and Repair
3.3.1 The Lessor shall maintain the Demised Premises and the
building except for the Mechanical Installations in sound
structural condition and shall at all times be responsible
for the structural work of any nature to the Demised
Premises and keep the Demised Premises in a good structural
state of repair and free from the ingress of water.
3.3.2 The Lessor shall not be responsible for any structural work of
any nature pursuant to Clause 3.3.1 where the necessity for
such structural work has resulted from an act, neglect or
default on the part of the Lessee its agent, servant, employee,
charge, invitee or any person claiming through or under the
Lessee or has resulted from the use of the Demised Premises
specified in Item 2 of the Schedule by the Lessee.
3.4 Refrigerants
Notwithstanding anything in Clause 3.3, the Lessor shall ensure that
the air conditioning plant at all times complies with any law from
time to time applicable to refrigerants.
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4. MUTUAL COVENANTS
THE LESSOR AND XXXXXX MUTUALLY COVENANT AND AGREE AS FOLLOWS:
4.1 Default
Any one of the following events shall constitute a default pursuant to
the Lease:
4.1.1 if the said rent hereby reserved or any part thereof shall be
in arrears and unpaid for fourteen (14) days after the same
shall have become due (whether any formal demand therefor shall
have been made or not);
4.1.2 if the Lessee shall at any time make default in or neglect or
fail to perform or observe or fulfil any of the covenants,
agreements, conditions or stipulations herein contained or
implied and which on the part of the Lessee are or ought to be
performed, observed or fulfilled;
4.1.3 if any order or resolution shall be made for the winding up of
the Lessee or any permitted assign of the Lessee being a
company (otherwise than for the purpose of amalgamation or
reconstruction) or the Lessee be placed in official management;
4.1.4 if any assignment shall be made of the property of the Lessee
for the benefit of his Creditors;
4.1.5 if the said term or the interest of the Lessee in the Demised
Premises shall be attached or taken in execution or upon any
legal process;
4.1.6 if the Lessee or any assign being an individual shall commit an
act of bankruptcy or enter into any arrangement pursuant to
Part X of the Bankruptcy Act (Commonwealth); or
4.1.7 if a Receiver and Manager of the undertaking of the Lessee is
appointed.
If any one of the above events shall occur then it shall be lawful for
the Lessor or any person authorized by him in that behalf in the case
of a breach by the Lessee of any covenant, agreement condition or
stipulation to which Section 146 of the Property Law Act 1958 does not
extend (and although advantage may not have been taken of a previous
default of the like nature) at any time thereafter to re-enter upon
the Demised Premises or any part thereof in the name of the whole.
Upon such entry this Lease shall absolutely determine but without
prejudice to the right of action of
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the Lessor in respect of any antecedent breach of the Lessee's
covenants, agreements, conditions or stipulations herein contained or
implied and which on the part of the Lessee are or ought to have been
performed observed or fulfilled.
In the case of a breach by the Lessee of any covenant, agreement,
condition or stipulation to which Section 146 of the Property Law Act
does so extend at the expiration of fourteen days from the service of
the notice referred to in sub-section (1) of the said Section 146 to
enter into or upon the Demised Premises or any part thereof in the
name of the whole.
In either case the Lessor may expel and exclude therefrom the Lessee
and all or any persons claiming under the Lessee and to remove all
goods and effects found upon the Demised Premises without in any case
being taken or deemed to be guilty of any manner of trespass and
without being in any manner liable at law or otherwise and released
from all and every claim by the Lessee for any act, matter or thing
done or omitted to be done by the Lessor under the powers and
authorities hereby conferred or intended so to be and without
prejudice to any right of action or remedy of the Lessor for arrears
of rent or any of the covenants of the Lessee or of the other
conditions, agreements and stipulations herein contained.
Thereupon this Lease shall if the Lessor so elects determine and be at
an end and the Lessee shall remain liable for rent to the date of such
re-entry and at the rate herein before reserved, and in any such case
this Lease may be produced as a Notice to Quit duly given and expired.
4.2 Matters Deemed Not To Affect Lessor's Rights
If the Lessee shall vacate the Demised Premises during the said term
(whether or not the Lessee ceases to pay the rental or other moneys
payable hereunder):
4.2.1 acceptance of the keys and/or entry into the Demised Premises
by the Lessor or by any person on the Lessor's behalf for the
purposes of inspection or for the purposes of showing the
premises to prospective tenants and/or the advertising of the
Demised Premises for reletting shall not constitute a re-entry
or forfeiture or waiver of the Lessor's right to recover in
full all rental and other moneys from time to time payable
hereunder.
4.2.2 in the absence of a written agreement by the Lessor to accept
the surrender of the Lessee's interest hereunder or a formal
notice of forfeiture or re-entry this Lease shall be deemed to
continue in full force and effect until the date as from which
a new Lessee actually commences to occupy the Demised Premises.
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4.2.3 any entry by the Lessor into the Demised Premises in the
meantime shall be deemed an entry by the leave and licence of
the Lessee.
5. DAMAGE, DESTRUCTION
If at any time the Demised Premises or part thereof shall be in the opinion
of the Lessor rendered unfit for occupation or use by reason of fire or
otherwise then and in any such case the Lessor may at his option determine
the Lease hereby created or may restore and reinstate the Demised Premises
so as to be fit again for occupation and in the latter case except as
hereinafter provided, the rent or a proportionate part thereof shall not be
payable in respect of any period during which the Demised Premises or part
thereof shall in the opinion of the Lessor be unfit for occupation or use
but this provision for cessation of rent shall not apply if the policy of
insurance against fire shall have been vitiated or if a renewal thereof
shall have been refused in consequence of some act or default of the Lessee
or the agents, servants, employees, invitees or charges of the Lessee or if
the fire or otherwise shall have been caused through any act or omission of
the Lessee or the agents, servants, employees, charges or invitees of the
Lessee PROVIDED THAT if the Demised Premises be destroyed or rendered unfit
for occupation for a period estimated by the Lessor to be beyond six months
then the Lessee may by one week's written notice to the Lessor determine
this Lease.
6. BANK GUARANTEE
6.1 The Lessee shall forthwith provide to the Lessor a Bank Guarantee to
the amount specified in Item 12 of the Schedule ("the Bank Guarantee")
to be held by the Lessor during the said term as security for the due
and proper performance and observance by the Lessee of all of the
covenants, provisos, conditions and agreements herein contained or
implied and on the Lessee's part to be performed and observed.
6.2 In the event of the Lessee failing to pay the rent or any other moneys
hereby reserved including all rates, taxes and Outgoings on the due
dates for payment thereof the Lessor shall be entitled to have
recourse to the Bank Guarantee to recover all amounts outstanding
referred to herein and to meet any expense incurred by the Lessor as a
result thereof without prejudice to the Lessor's other rights, powers
and remedies in respect of such amounts.
6.3
6.3.1 If the Lessee fails to perform and observe any of the
covenants, provisos, conditions and agreements contained in
this Lease then the Lessor may, provided it has obtained an
order from the relevant court, have recourse to the Bank
Guarantee to remedy any such breach or default and to meet any
expense incurred by the Lessor as a result thereof without
prejudice to the Lessor's
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other rights, powers and remedies in respect of any such
default or breach.
6.3.2 The provisions of Clause 6.3.1. shall not apply to those
covenants relating to the payment of rent and any other moneys
including, rates, taxes and Outgoings referred to in Clause
6.2.
6.4 At the expiration or sooner determination of the said term the Lessee
having performed and observed all of the said covenants, provisos,
conditions and agreements shall be entitled to a refund of the Bank
Guarantee or such part thereof as has not been applied as aforesaid.
6.5 Without prejudice to any other rights or powers of the Lessor provided
in this Lease, the Lessor shall advise the Lessee in writing seven (7)
days prior to exercising its rights under this Bank Guarantee.
7. RENEWAL OF LEASE
If the Lessee shall wish to take a renewal Lease of the Demised Premises
for a further term being the period (if any) so set out in the said
Schedule from the expiration of the said term AND PROVIDED that the Lessee
shall at least three months before the expiration of the term hereby
created request such renewal by notice in writing to be delivered to the
Lessor at its address last known to the Lessee and to its address herein
appearing and shall have at all times throughout the term duly and
punctually paid the rent reserved by this Lease at the times herein
appointed for payment thereof and shall have at all times throughout the
term duly performed and observed the covenants and agreements by and on the
part of the Lessee contained in this Lease up to the expiration of the term
hereby granted then the Lessor will at the expense of the Lessee grant to
the Lessee a new Lease of the Demised Premises for a further term being the
period (if any) so set out in the said Schedule from the day after the date
of expiration of the said term (hereinafter called "the renewal date") at a
rent to be determined in accordance with the provisions of Annexure 1
hereof which shall apply as if incorporated herein in respect to the first
year of the further term and thereafter in accordance with Clause 2.2 AND
otherwise the renewal Lease shall contain the like covenants and provisos
as are herein contained save as to rental aforesaid and save for the
provisions of this Clause PROVIDED FURTHER ALWAYS that if this Lease is
presently subject to a Guarantee and Indemnity or a Bank Guarantee then the
Lessor shall not be bound to grant a renewal Lease for the further term (if
any) as herein otherwise provided for unless and until the Lessee procures
the execution by a party or parties nominated by the Lessor of a Guarantee
and Indemnity of the renewal Lease in a form approved by the Lessor and/or
the Lessor's solicitors or at the Lessor's option a Bank Guarantee for the
further term. If applicable, the parties herein agree that the last date
for the Lessee to request a renewal lease is the date contained in Item 8
of the Schedule herein.
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8. HOLDING OVER
If upon the expiration of the said terms the Lessee shall remain in
possession of the Demised Premises without objection by the Lessor the
Lessee shall be considered as from the date of expiry of the term hereby
granted tenant from month to month of the Demised Premises at a rental to
be determined in accordance with the provisions of Clause 2.2 payable in
the manner set out in the Schedule subject to the provisions of this Lease
as far as same can be construed to apply to a monthly tenancy.
9. MAXIMUM AGGREGATE PERIOD
Notwithstanding anything to the contrary in this Lease contained or implied
it is expressly agreed and understood that the maximum aggregate period for
which the Lessee may occupy the Demised Premises is the period set out in
Item 7 of the Schedule as the "maximum aggregate period" from the
commencement date provided that the Lessee will have duly observed and
performed all his obligations and covenants pursuant to this Lease and
provided that he will have duly and properly exercised his right to renew
this Lease for the further term (if any).
10. LESSEE MAY REMOVE PROPERTY
10.1 Prior to the expiration or earlier determination of the term hereby
created (or later the renewal or extension thereof as the case may be)
the Lessee may remove any of his chattels, floor coverings, fixtures
and fittings contained or installed in or affixed to the Demised
Premises by the Lessee during or prior to the term hereof (or later
the renewal or extension thereof as the case may be) PROVIDED ALWAYS
that any damage or loss occasioned thereby shall be made good at the
expense of the Lessee and the Demised Premises are reinstated and
restored by the Lessee to the same standard and condition subsisting
at the date the Lessee began occupation of the Demised Premises or at
the commencement date hereof whichever is the earlier.
10.2 If the Lessee has not so removed the said chattels, floor
coverings, fixtures or fittings, the Lessor may by notice in
writing addressed to the Lessee require the Lessee at the expense
of the Lessee to remove from the Demised Premises within fourteen
(14) days from the expiration or earlier determination of the term
hereof (or later the renewal or extension thereof as the case may
be) all or any of such chattels, floor coverings, fixtures and
fittings and to reinstate and restore the Demised Premises to the
same standard and condition subsisting at the date the Lessee began
occupation of the Demised Premises or the commencement date hereof
whichever is the earlier PROVIDED ALWAYS that the Lessor may at its
option itself cause any such chattels, floor coverings, fixtures or
fittings to be removed and any such damage to be made good and to
reinstate and restore the
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Demised Premises and may recover the costs thereof from the Lessee
as a liquidated debt payable on demand.
10.3 If the Lessee shall not have so removed any of the said chattels,
floor coverings, fixtures or fittings either as of right or by
requirement of the Lessor as aforesaid, then the same shall be deemed
to be affixed to the Demised Premises and thereupon the Lessee shall
be deemed to have abandoned any claim in or at such chattels, floor
coverings, fixtures and fittings and to have waived any right to
compensation in respect thereof whereupon the same shall become the
property of the Lessor.
10.4 Upon vacating the Demised Premises or at the request of the Lessor
immediately prior thereto, the Lessee shall remove any signs, names,
advertisements or notices erected, painted, displayed, affixed or
exhibited upon, to or within the Demised Premises and shall make good
any damage or disfigurement thereby caused.
11. ZONING AND USE OF PREMISES
The Lessor shall in no way be held liable or responsible or accountable for
the zoning applicable to the Demised Premises and the Lessee hereby
acknowledges that it has checked the zoning applicable to the Demised
Premises and finds the same suitable for its purposes and has obtained all
necessary permits. Should the zoning in respect of the Demised Premises now
or at any time hereafter conflict with the permitted uses hereunder then
notwithstanding such conflict the Lessee shall remain fully liable for
performance of its obligations hereunder. The Lessor in no way warrants
that the premises are suitable for the permitted use described in Item 2 of
the Schedule.
12. LESSEE'S RISK
12.1 To the extent permitted by law or statute, the Lessee indemnifies and
keeps the Lessor indemnified from and against all damages, losses,
costs, charges, expenses, actions, claims and demands which may be
sustained, suffered, recovered or made against the Lessor (by any
person) or for which the Lessor may become liable whether during or
after the term of this Lease in respect of or arising from:
12.1.1 injury or loss which may be sustained by any person when
using or entering or near any portion of the Demised
Premises whether in the occupation of the Lessor or of the
Lessee or of any other person where such injury arises or
has arisen as a result of the negligence of or as a result
of the creation of some dangerous thing or state of affairs
by the Lessee or any agent, servant, employee, charge,
invitee or any other person claiming through or under the
Lessee and whether the existence of such dangerous thing or
-24-
dangerous state of affairs was or ought to have been known
to the Lessee or not;
12.1.2 loss, damage or injury from any cause whatsoever to property
or to persons within or outside the Demised Premises
occasioned or contributed to by the neglect or default of
the Lessee or any agent, servant, employee, charge, invitee
or other person claiming through or under the Lessee to
observe or perform any of the covenants, conditions,
regulations and restrictions on the part of the Lessee
hereunder whether positive or negative expressed or implied;
12.2.3 loss, damage or injury to the Demised Premises and all
properties therein occasioned or contributed to by the
neglect or default of the Lessee or any agent, servant,
employee, charge, invitee or other person claiming through
or under the Lessee;
12.1.4 the negligent use, misuse, waste or abuse by the Lessee or
any agent, servant, employee, charge, invitee or any other
person claiming through or under the Lessee of any water,
gas, electricity or any other services supplied to the
Demised Premises or the buildings;
12.1.5 the negligent use, misuse, waste or abuse by the Lessee or
any agent, servant, employee, charge, invitee or any other
person claiming through or under the Lessee of any faulty
fittings and fixtures of the Lessee;
12.1.6 the negligent use, misuse, waste or abuse by the Lessee or
any agent, servant, employee, charge, invitee or any other
person claiming through or under the Lessee of the services,
Mechanical Installations or facilities of the Demised
Premises or the buildings;
12.1.7 the overflow leakage or escape of water, fire, gas,
electricity or any other harmful agent whatsoever in or from
the buildings or the Demised Premises caused or contributed
to by any act or omission on the part of the Lessee or any
agent, servant, employee, charge, invitee or any other
person claiming through or under the Lessee;
12.1.8 the failure of the Lessee to immediately notify the Lessor
of any accident or a defect in any of the Mechanical
Installations, appurtenances, water pipes, gas pipes,
electric wiring or other fittings or fixtures contained in
the Demised Premises;
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12.1.9 loss, damage or injury from any cause whatsoever to property
or person caused or contributed to by the use of the
buildings or the Demised Premises by the Lessee or any
agent, servant, employee, charge, invitee or any other
person claiming through the Lessee;
12.1.10 the occurrence on the Demised Premises during the said term
of any accident or injury to or death of any person or
damage or injury to or loss of the property of any persons;
or
12.1.11 any injury, illness, loss or damage which may be caused to
or suffered by the Lessee or any agent, servant, employee,
charge, invitee or any person claiming through or under the
Lessee resulting from any materials used in or about the
construction or maintenance of the buildings or the fixtures
and fittings therein.
12.2 Notwithstanding Clause 12.1.11, the Lessee shall not be liable to
indemnify the Lessor in respect of any injury, illness, loss or damage
which may be caused to or suffered by the Lessee or any agent,
servant, employee, charge, invitee or any other person claiming
through or under the Lessee resulting from any materials used in or
about the construction or maintenance of the buildings or the fixtures
and fittings therein prior to the commencement of the Lease provided
that:
12.2. 1 the Lessee acknowledges that a visual inspection of the
Demised Premises and the building of which the Demised
Premises forms part has been conducted. The Lessee
undertakes to notify the Lessor of any defects which may
become apparent to the Lessee during the term of the Lease.
12.2.2 the Lessee shall be responsible for any injury, illness,
loss or damage resulting from any act, neglect or default on
the part of the Lessee.
12.3 The Lessee agrees to occupy use and keep the Demised Premises at the
risk of the Lessee and hereby releases to the full extent permitted
by law the Lessor and its agents, servants, contractors and employees
(save for the consequences of any wilful act on their part) from all
claims and demands of every kind resulting from any accident, damage
or injury occurring therein and the Lessee expressly agrees that in
the absence of any such negligence as aforesaid the Lessor shall have
no responsibility or liability for any loss of or damage to fixtures
or personal property of the Lessee.
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12.4 Without limiting the generality of the foregoing the Lessee
acknowledges that the Lessor shall not be liable to the Lessee or to
any other person in respect of loss or damage suffered as a result of
fire or explosion or the escape of water liquids or sewerage or by
reason of any fault or failure of any of the Mechanical Installations
or any electric, gas, water or sewerage system installation or
apparatus or any fire protective or alarm system in the buildings or
by insufficiency or absence of lighting or by the bursting, running or
leaking of any tank closet tape or pipe or by rain or other water
being upon or entering the Demised Premises through the roof,
skylight, vent, window, trapdoor or otherwise or for any damage
arising from any act or neglect of other occupiers of the buildings or
of any adjacent property or the public or from any other cause
howsoever occurring or from any structural defect and the Lessor shall
not be liable in damages or otherwise for any failure to furnish or
interruption of service of lift, escalator, water, gas, electricity,
heated water, steam and chilled water caused by mechanical breakdown,
fire, accident, riot, strike, labour disputes, Acts of God the making
of any repairs or improvements or other causes beyond the control of
the Lessor PROVIDED ALWAYS that such loss or damage is not occasioned
by any wilful act of the Lessor its servants or agents.
13. ESSENTIAL COVENANTS
That the covenants by the Lessee contained or implied in the clauses to pay
rent, rates, taxes and all other charges, impositions, Outgoings,
maintenance, repairs, assignments, sub-letting or otherwise of the Demised
Premises, use of and licenses relating to the Demised Premises and
insurances with regard to the Demised Premises are essential and
fundamental terms to this Lease and the breach or non-observance or
non-performance of any one or more such covenants, terms and conditions
shall be deemed to be a fundamental breach of the provisions of this Lease
on the part of the Lessee to be observed and performed PROVIDED THAT the
presence of this Clause in this Lease shall not mean or be construed as
meaning that there are no other fundamental and/or essential terms in this
Lease. Should the Lessor terminate this Lease following any such
fundamental breach or otherwise, then without prejudice to any other right
or remedy of the Lessor herein contained or implied, IT IS EXPRESSLY AGREED
AND DECLARED that the Lessor shall be entitled to recover from the Lessee
as and by way of liquidated damages for such breach the difference between
the aggregate of the rent, the Lessee's obligations to pay rates, taxes,
other impositions and Outgoings in relation to the Demised Premises and
other monies that would have been payable by the Lessee for the unexpired
residue of the term but for such determination calculated from the date of
such determination to the date of termination of this Lease referred to in
the Schedule of this Lease LESS the aggregate of the several rental and
other monies which the Lessor by taking proper steps to re-let the Demised
Premises shall obtain or could reasonably be expected to obtain by
re-letting the Demised Premises for the unexpired residue of the term (if
any) PROVIDED that in so doing the Lessor shall not be required to oblige
to offer or accept in respect of such re-letting
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terms, covenants, conditions or stipulations which are the same or similar
to the terms, covenants, conditions or stipulations herein contained or
implied.
14. MORTGAGE OF PREMISES
The parties hereto HEREBY JOINTLY ACKNOWLEDGE AND AGREE that the Lessor
shall have the right at any time to mortgage or otherwise charge the
Demised Premises without prejudice to the rights of the Lessee hereunder
without obtaining or requiring the consent by the Lessee to such Mortgage
or Charge and the Lessee FURTHER AGREES to sign documents and do all such
reasonable acts, matters or things that may be required to enable
registration in the Office of Titles of such Mortgage PROVIDED ALWAYS that
any legal costs so incurred by the Lessee pursuant to this provision shall
be paid by the Lessor.
15. SUITABILITY OF THE PREMISES
15.1 The Lessee acknowledges that no promise, representation, warranty or
undertaking has been given by or on behalf of the Lessor in respect of
the suitability of the buildings or the Demised Premises for any
purpose or for any business to be carried on therein or as to the
fittings, finishes, facilities and amenities of the buildings or the
Demised Premises and all warranties (if any) implied by law are hereby
so far as legally possible expressly negatived.
15.2 The Lessee acknowledges and declares that no promise, representation,
warranty or undertaking either express or implied has been given by or
on behalf of the Lessor or can be said to be deemed to have arisen as
to the suitability of the Demised Premises for any business to be
carried on therein by the Lessee or as to the quality, nature or
extent of any of the fittings, finishes, facilities and amenities of
the Demised Premises or any of the common areas appurtenances services
and mechanical installations that the Lessee is to be entitled to use
and enjoy either alone or in common with others or as to the use or
purpose to which the Demised Premises may lawfully be put or otherwise
as to any business that may lawfully be carried on in the Demised
Premises and notwithstanding that the Lessee may have made known to
the Lessor or any person acting for it the nature of the Lessee's
present business or of any other business that the Lessee wishes to
carry on in the Demised Premises.
16. VICARIOUS RESPONSIBILITY
The Lessee shall not permit any of the Lessee's servants, agents or so far
as the Lessee can control them the Lessee's customers or invitees to commit
a breach of or make default in performing any of the covenants on the part
of the Lessee herein contained.
-28-
17. FIRE HAZARD
The Lessee shall not in any way create any actual or potential fire hazard
in the buildings or the Demised Premises or in any part thereof and will
permit the Lessor at all times to enter upon the Demised Premises and to
xxxxx any actual or potential fire hazard in or about the Demised Premises
and if such hazard in the reasonable opinion of the Lessor is caused by or
results from the use or occupancy of the Demised Premises by the Lessee the
Lessee shall pay to the Lessor the costs and expenses incurred by the
Lessor in carry out such work.
18. MORATORIUM
The Lessee shall not be entitled to the benefit of any Acts, Regulations or
proclamations in the nature or having the effect of a moratorium or
purporting to effect any reduction in rent or interest whether already
passed made or authorized or hereafter to be passed made or authorized by
the Federal or State Parliament or other responsible body or authority
thereunder and that such Acts, Regulations and proclamations shall not
apply hereto.
19. GOVERNING LAW
This Lease shall be governed by and construed in accordance with the Laws
of the State of Victoria and if any provisions of this Lease shall to any
extent be invalid the remainder of this Lease shall not be affected
thereby.
20. NO REPRESENTATIONS
There are no oral or written agreements between the Lessor and Lessee
affecting this Lease other than the written agreement for Lease (if any) to
which this Lease was attached and which was made by the parties hereto in
respect of the Demised Premises and that this Lease is not entered into in
reliance on any representations or warranties express or implied, save as
may be specifically set out herein.
21. NOTICES
Any notice to the Lessee hereunder, notwithstanding any other provision
herein to the contrary contained or implied shall be deemed to be duly
given if left at the Demised Premises or addressed to the Lessee at the
Demised Premises and duly posted. A notice sent by post shall be deemed to
have been duly served at twelve (12) noon on the day next following such
posting.
22. JOINT AND SEVERAL LIABILITY
That in the event of the Lessee consisting of more than one party then the
covenants herein contained and on the part of the Lessee to be observed and
performed shall be deemed to be entered into both jointly and severally by
the parties constituting the Lessee.
-29-
23. MISCELLANEOUS
23.1 Amendment
This Lease may be amended only by instruments in writing executed by
the Lessor and Xxxxxx.
23.2 No Relationship
Nothing herein contained shall be deemed or construed (by the parties
hereto nor by any third party) as creating the relationship of
principal and agent or of partnership or of joint venture between the
parties hereto it being understood and agreed that no provision
contained herein shall be deemed to create any relationship between
the parties hereto other than the relationship of Xxxxxx and Xxxxxx.
23.3 Waiver
No waiver by the Lessor of a breach of any covenant, obligation or
provision in this Lease contained or implied shall, operate as a
waiver of another breach of the same or any other covenant, obligation
or provision in this Lease contained or implied.
23.4 Index and Headings
The Index and all headings in this Lease are not intended to and do
not constitute parts of the Lease and only act as a guide to finding
the relevant clauses.
23.5 Schedule and Annexures
The Schedule, Annexures and Special Conditions (if any) are intended
to and do form part of this Lease.
23.6 Severance, Reading Down
The several covenants and conditions and each and every part thereof
contained in this Lease, shall be so construed as not to infringe the
provisions of any Act whether State or Federal, but if any such
covenant or condition in its true interpretation does infringe any
such provision, that covenant or condition shall be read down to such
extent as may be necessary to ensure that it does not so infringe and
as may be reasonable in all circumstances so as to give it a valid
operation of a partial character and in the event that the infringing
covenant or condition cannot be so read down it shall be deemed to be
void and severable.
-30-
EXECUTED BY THE PARTIES
THE COMMON SEAL of ENFIELD )
VIEW PTY LTD (A.C.N. 007 382 603) ) (SEAL)
was hereunto affixed in )
accordance with its Articles )
of Association in the )
presence of: )
/s/ X.X. Xxxxxxx DIRECTOR
-----------------------
X.X. Xxxxxxx Name of Director (print)
-----------------------
/s/ illegible SECRETARY
-----------------------
illegible Name of Secretary (print)
-----------------------
THE COMMON SEAL of RECOIL )
PTY LTD (A.C.N. 006 664 7311) ) (SEAL)
was hereunto affixed in accordance with )
its Articles of Association in the )
presence of: )
/s/ X.X. Xxxx DIRECTOR
-----------------------
X.X. Xxxx Name of Director (print)
-----------------------
/s/ X.X. Xxxxx DIRECTOR
-----------------------
X.X. Xxxxx Name of Director (print)
-----------------------
11th Day of August 1995
Commonwealth Bank as Mortgageee under Memorandum of Mortgage No. A571511D of the
premise demised by the within lease hereby conents to such lease.
/s/ illegible
SCHEDULE
ITEM
1. DEMISED PREMISES: All that piece of land being Lots, 6, 7 and part of Lot
8 on Plan of Subdivision No. 136910 lodged in the
Titles Office and described in Certificate of Title
Volume 9518 Folio 994 and situated at 00 Xxxxxxxx Xxxx,
Xxxxxxxx
2. USE OF PREMISES: Office, warehouse and light industrial manufacturing
3. RENTAL: TEN THOUSAND SIX HUNDRED AND NINETY DOLLARS AND SIXTY-
THREE CENTS ($10,690.63) per calendar month payable
monthly in advance from the commencement date.
No rent is payable for the period from the commencement
date to 31 October 1995.
Nothing in this Schedule shall relieve the Lessee of
its obligations to pay the Outgoings.
4. RENT REVIEW DATES: Annually from the commencement date
5. TERM OF LEASE: Five (5) years
6. FURTHER TERM: One (1) further term of five (5) years
7. MAXIMUM AGGREGATE
PERIOD Ten (10) years
8. LAST DATE FOR
EXERCISE OF OPTION: 30 April 2000
9. COMMENCEMENT DATE: 1st August 1995
10. CHATTELS: Airconditioner, Partitioning, Carpets, Sprinkler System
(Garden) and Fire Fighting Equipment
11. SECURITY DEPOSIT: Nil
12. BANK GUARANTEE: Bank Guarantee of seventy thousand dollars ($70,000.00)
for the term of this Lease. The Bank Guarantee for the
further term shall be the average six (6) monthly
rental payable during the further term based on an
annual rental increase of four percent (4%) pursuant to
Clause 2.2, rounded up to the nearest one thousand
dollars ($1,000.00).
LEASE
INDEX
CLAUSE
Recitals
1. DEFINITIONS AND INTERPRETATION. . . . . . . . . . . . . . . . . . . . . 1
1.1 Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2. LESSEE'S COVENANTS. . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.1 Rent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.2 Rent Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.3 Rates, Taxes and Outgoings . . . . . . . . . . . . . . . . . . . . 4
2.4 General Positive Covenants . . . . . . . . . . . . . . . . . . . . 5
2.4.1 Consumables. . . . . . . . . . . . . . . . . . . . . . . . 5
2.4.2 Clean the Premises . . . . . . . . . . . . . . . . . . . . 5
2.4.3 Repair and Maintain. . . . . . . . . . . . . . . . . . . . 5
2.4.4 Clean Windows. . . . . . . . . . . . . . . . . . . . . . . 6
2.4.5 Make Good Damage . . . . . . . . . . . . . . . . . . . . . 6
2.4.6 Repair Damage Caused to Adjoining Premises . . . . . . . . 6
2.4.7 Disposal of Rubbish. . . . . . . . . . . . . . . . . . . . 6
2.4.8 Notice of Defects. . . . . . . . . . . . . . . . . . . . . 6
2.4.9 Comply with Acts . . . . . . . . . . . . . . . . . . . . . 6
2.4.10 Use of Premises. . . . . . . . . . . . . . . . . . . . . . 7
2.4.11 Inspection . . . . . . . . . . . . . . . . . . . . . . . . 7
2.4.12 Maintenance and Alteration . . . . . . . . . . . . . . . . 8
2.4.13 Lessor's Costs . . . . . . . . . . . . . . . . . . . . . . 8
2.4.14 Costs of Default . . . . . . . . . . . . . . . . . . . . . 8
2.4.15 Interest on Default. . . . . . . . . . . . . . . . . . . . 8
2.4.16 Exhibit "To Let" Sign . . . . . . . . . . . . . . . . . . 9
2.4.17 Inspection at End of Term. . . . . . . . . . . . . . . . . 9
2.4.18 Keep Premises Open . . . . . . . . . . . . . . . . . . . . 9
2.4.19 Locking of Property. . . . . . . . . . . . . . . . . . . . 9
2.4.20 Garden . . . . . . . . . . . . . . . . . . . . . . . . . . 10
2.4.21 Delivering Up. . . . . . . . . . . . . . . . . . . . . . . 10
2.4.22 Lessee's Works . . . . . . . . . . . . . . . . . . . . . . 10
2.5 Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
2.5.1 Insurance Charges. . . . . . . . . . . . . . . . . . . . . 10
2.5.2 Pay or Reimburse . . . . . . . . . . . . . . . . . . . . . 12
2.5.3 Application of Insurance Money . . . . . . . . . . . . . . 12
2.5.4 Insurance against storage of Hazardous Chemicals . . . . . 12
2.6 General Negative Covenants . . . . . . . . . . . . . . . . . . . . 12
2.6.1 Not to Sleep on Premises . . . . . . . . . . . . . . . . . 12
2.6.2 No Illegal Immoral Purpose . . . . . . . . . . . . . . . . 12
2.6.3 No Rubbish . . . . . . . . . . . . . . . . . . . . . . . . 12
2.6.4 No Alterations/Additions . . . . . . . . . . . . . . . . . 12
ii
2.6.5 Not to Vitiate Insurance . . . . . . . . . . . . . . . . . 13
2.6.6 No Noxious Offensive Business. . . . . . . . . . . . . . . 13
2.6.7 No Auction Sale. . . . . . . . . . . . . . . . . . . . . . 13
2.6.8 Hazardous Chemicals. . . . . . . . . . . . . . . . . . . . 13
2.6.9 Approved Heating . . . . . . . . . . . . . . . . . . . . . 13
2.6.10 No Animals . . . . . . . . . . . . . . . . . . . . . . . . 14
2.6.11 No Sweeping. . . . . . . . . . . . . . . . . . . . . . . . 14
2.6.12 No Noise . . . . . . . . . . . . . . . . . . . . . . . . . 14
2.6.13 Signs. . . . . . . . . . . . . . . . . . . . . . . . . . . 14
2.6.14 Damage to the Demised Premises . . . . . . . . . . . . . . 15
2.7 Assignment Mortgage and/or Parting with Possession . . . . . . . . 15
2.7.1 Provisions for Assignment, etc.. . . . . . . . . . . . . . 15
2.7.2 Lessee Corporation . . . . . . . . . . . . . . . . . . . . 16
3. LESSOR'S COVENANTS. . . . . . . . . . . . . . . . . . . . . . . . . . . 17
3.1 Quiet Enjoyment. . . . . . . . . . . . . . . . . . . . . . . . . . 17
3.2 Comply With Terms. . . . . . . . . . . . . . . . . . . . . . . . . 17
3.3 Structural Maintenance and Repair. . . . . . . . . . . . . . . . . 17
3.4 Refrigerants . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
4. MUTUAL COVENANTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
4.1 Default. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
4.2 Matters Deemed Not To Affect Lessor's Rights . . . . . . . . . . . 19
5. DAMAGE, DESTRUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . 20
6. BANK GUARANTEE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
7. RENEWAL OF LEASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
8. HOLDING OVER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
9. MAXIMUM AGGREGATE PERIOD. . . . . . . . . . . . . . . . . . . . . . . . 22
10. LESSEE MAY REMOVE PROPERTY. . . . . . . . . . . . . . . . . . . . . . . 22
11. ZONING AND USE OF PREMISES. . . . . . . . . . . . . . . . . . . . . . . 23
12. LESSEE'S RISK . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
13. ESSENTIAL COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . 26
14. MORTGAGE OF PREMISES. . . . . . . . . . . . . . . . . . . . . . . . . . 27
15. SUITABILITY OF THE PREMISES . . . . . . . . . . . . . . . . . . . . . . 27
iii
16. VICARIOUS RESPONSIBILITY. . . . . . . . . . . . . . . . . . . . . . . . 27
17. FIRE HAZARD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
18. MORATORIUM. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
19. GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
20. NO REPRESENTATIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . 28
21. NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
22. JOINT AND SEVERAL LIABILITY . . . . . . . . . . . . . . . . . . . . . . 28
23. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
23.1 Amendment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
23.2 No Relationship. . . . . . . . . . . . . . . . . . . . . . . . . . 29
23.3 Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
23.4 Index and Headings . . . . . . . . . . . . . . . . . . . . . . . . 29
23.5 Xxxxxxxx and Annexures . . . . . . . . . . . . . . . . . . . . . . 29
23.6 Severance, Reading Down. . . . . . . . . . . . . . . . . . . . . . 29
SCHEDULE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
