Exhibit 10.17
THIS LEASE is made on the 1st day of July 2000
BETWEEN
RAGLAN SECURITIES PTY LTD ACN 008 996 852 of 42 Mercantile Way, Malaga in the
State of Western Australia ("the Lessor").
AND:
ALLOY STEEL INTERNATIONAL INCORPORATED of care of Winduss & Cook Proprietary,
108 Brighton Road, Scarborough in the said State ("the Lessee");
WHEREAS:
A. The Lessor is the registered proprietor of an estate in fee simple in the
Land on which is constructed the Premises.
B. At the request of the Guarantor and the Lessee the Lessor has agreed to
lease and the Lessee has agreed to take on lease the Premises for the Term
on the terms and conditions contained herein.
NOW THIS DEED WITNESSES
1. INTERPRETATION
1.1 In this Lease unless the context otherwise requires the following terms
shall have the following meanings:
"Air-Conditioning Plant" means any plant, machinery or equipment for
heating, cooling or circulating air or water provided or installed in the
Premises by the Lessor,
"Building" means any building in which the Premises are located on the
Land;
"Commencement Date" means the date specified in Item 2 of the Schedule;
"Corporation" means any body corporate;
"Current Market Rental Value" means the current market rental value
specified in Item 8 of the Schedule;
"Expiration Date" means the date specified in Item 2 of the Schedule;
"Institute of Valuers" means the Australian Institute of Valuers and Land
Economists (Inc.) (Western Australian Division) or if that body should
cease to exist any other body which the Lessor may notify the Lessee in
writing from time to time is to be the Institute of Valuers for the
purposes of this Lease;
"Land" means the land specified in Item 1 of the Schedule;
"Lease" means this lease and the Schedule;
"Lessee" if a natural person includes the Lessee and the executors
administrators and permitted assigns of the Lessee and if a Corporation
includes the Lessee and its successors and permitted assigns and in either
case where not repugnant to the context includes the Lessee's Employees or
Visitors;
"Lessee's Covenants" means the covenants terms and conditions herein
expressed or implied to be observed or performed by the Lessee;
"Lessee's Employees or Visitors" means every employee of the Lessee and
the Lessee's agents customers clients visitors invitees licensees
contractors and any other person at any time upon the Premises;
"Lessor" means the Lessor and its successors and assigns and where not
repugnant to the context its employees and agents;
"Lessor's Agent" means any Person or Corporation which the Lessor may from
time to time notify the Lessee in writing is an agent of the Lessor;
"Lessor's Expenses" means the Lessor's expenses of operating, repairing,
or maintaining the building of which the Premises form a part or where the
Premises are in a retail shopping centre, that building and the Common
Areas thereof;
"Lessor's Purposes" means the passage or flow of water gas fuel
electricity sewerage garbage sullage air conditioning hearing cooling and
ventilation telephone public address fire detection and protection and
other services in or about or through above or below the Premises;
"Local or Public Authority" means every Governmental or Semi-Governmental
body, authority or commission, Municipal Council, Health Board, Health
Commissioner, Water Authority, Water Sewerage and Drainage Board,
Metropolitan Water Board, Fire Brigades Board, Insurance Council and every
and any other board person or authority whatsoever now or hereafter
exercising under any Act or by-law any control or jurisdiction over or
power in connection with the Premises or any part thereof or with any
business now or hereafter carried on thereon or with any water gas fuel
electricity sewerage garbage sullage hearing cooling ventilation or other
services in or about the Premises and every officer or person acting under
the authority of any Act by-law or Local or Public Authority;
"Method of Review" means the means of reviewing rent set against a Rent
Review Date specified in Item 5 of the Schedule;
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"Premises" means the premises specified in Item 1 of the Schedule erected
on the Land together with the fixtures fittings chattels furnishings plant
machinery and equipment of the Lessor (if any) therein from time to time
details of which or some of which are specified in Item 1 of the Schedule;
"Prescribed Rate" means the rate of interest specified in Item 4 of the
Schedule;
"Rent" means the rent specified in Item 3 of the Schedule as subsequently
reviewed and varied pursuant to the provisions of this Lease;
"Rent Review Date" means each of the dates specified in item 5 of the
Schedule;
"Schedule" means the schedule to this Lease;
"Term" means the term of this Lease specified in Item 2 of the Schedule
which term shall commence of the Commencement Date and expire on the
Expiration Date and includes any extension or renewal of the Term;
"Valuer" or "Valuers" mean a valuer of not less then five (5) years
experience in valuing commercial properties who is a member of the
Australia Property Institute Inc. (Western Australian Division) nominated
by the President for the time being of the Institute at the request of the
Lessor;
1.2 In this Lease unless the context otherwise requires:
1.2.1 a reference to any Act shall include all amendments or re-enactments
thereof for the time being in force;
1.2.2 any covenant entered into by more than one person shall be deemed to
have been entered into by them and any two or more of them jointly
and by each of them severally; and
1.2.3 the captions and the headings to the clauses of this Lease are for
index purposes only and this Lease is to be read and construed as
though the captions and heading were not part of this Lease and
without reference to the captions and headings.
1.3 The covenants herein on the part of the Lessee to be performed and
observed shall be deemed to be made by the Lessee to the intent that such
obligations may continue throughout the whole of the Term and during any
period of holding over and be binding upon and enforceable not only
against the Lessee but also against any occupier whomsoever for the time
being of the Premises or any part thereof.
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1.4 The covenants herein on the part of the Lessor to be performed and
observed shall be deemed to be made by the Lessor with intent to bind the
reversion immediately expectant hereon and the registered proprietor
thereof for the time being but not so a to render the Lessor personally
liable for performance or damages or otherwise except for the Lessor's own
willful acts and defaults whilst the Lessor remains as registered
proprietor of the Premises.
1.5 The Lessee expressly acknowledges and agrees that if the Lessor has
entered into this Lease as trustee of a trust and in no other capacity the
Lessor will not be personally liable to the Lessee for any breach of the
covenants, conditions and stipulations contained or implied in this Lease
and that in respect of any such breach the Lessee will only be able to
claim damages from the Lessor to the extent that the Lessor is able to be
reimbursed from the net assets of that trust and further that no officers
of the Lessor shall be personally liable to the Lessee.
1.6 The Lessee hereby covenants and agrees with the Lessor that in the event
that the Lessee shall enter into this Lease in its capacity as trustee of
a trust then both the Lessee in its own right and the Lessee in its
capacity as trustee of the trust will be personally liable to the Lessor
for any breach of the terms, covenants, conditions and stipulations
contained in this Lease and on the part or the Lessee to be performed or
observed.
1.7 Unless the context otherwise requires the words and expressions defined in
the Retail Shops Act shall have the same meaning in this Lease.
2. LEASE AND RENT
2.1 Lease
The Lessor leases to and the Lessee takes the Premises for the Term
subject to the covenants implied by the Transfer of Land Act 1893 except
as herein amended or negatived and upon and subject to the terms,
covenants, conditions and stipulations contained herein PROVIDED THAT
(without limiting any other right hereby granted or becoming vested in the
Lessor) the Lessor shall be entitled to access to and the rights reserved
in respect of the Premises in the terms hereof.
2.2 Rent
The Lessee shall pay the Rent for the Premises to the Lessor in the manner
provided in clause 3.1.
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2.3 Rent Review -- Market Rent
2.3.1 The Rent shall be reviewed in respect of the period from the Rent
Review Date to the next Rent Review Date and in calculating the Rent
payable from a Rent Review Date the following shall apply:
2.3.1.1 Not less than three (3) months prior to each Rent Review
Date the Lessor shall give to the Lessee notice in writing
of the annual Rent proposed by the Lessor to become payable
from that Rent Review Date ("the Lessors Proposed Rent").
2.3.1.2 Within fourteen (14) days of service of that notice on the
Lessee (time being of the essence) the Lessee shall be
entitled to give the Lessor notice in writing disputing the
amount of the Lessor's Proposed Rent and stating the amount
which the Lessee considers to be the correct Current Market
Rental Value that should be payable from that Rent Review
Date ("the Lessee's Proposed Rent").
2.3.1.3 If the Lessee gives the notice referred to in paragraph
2.3.1.2. above within the time therein specified the Lessor
may accept the Lessee's Proposed Rent as the Rent payable by
the Lessee to the Lessor on and from that Rent Review Date.
If the Lessor does not accept the Lessee's Proposed Rent the
Lessor shall give notice in writing of that fact to the
Lessee ("the Non-Acceptance Notice"). If the annual Rent
payable from a Rent Review Date (the "Reviewed Rent") is not
otherwise agreed by the Lessor and the Lessee prior to the
relevant Rent Review Date the Reviewed Rent shall be the
then Current Market Rental Value determined in the manner
specified in paragraph 2.3.1.4 and subsequent paragraphs
below.
2.3.1.4 The Reviewed Rent shall be determined by two (2) Valuers one
(1) appointed by the Lessor and (subject to the following
provisions) one appointed by the Lessee (together "the
Appointed Valuers"). The Lessor and the Lessee shall appoint
their respective Valuers within fourteen (14) days after the
date the Lessee receives the Non-Acceptance Notice and shall
each notify the other within that period of their appointed
Valuer. If the Appointed Valuers fail to agree on the
Reviewed Rent then the Reviewed Rent shall be determined by
a third Valuer ("the
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Arbitrator") appointed by the Appointed Valuers. The
Arbitrator shall act as an umpire in accordance with the
provisions of the Commercial Arbitration Act 1985 and his
decision shall be final and binding on both the Lessor and
the Lessee.
2.3.1.5 If either the Lessor or the Lessee do not appoint their
respective Valuers or if the Appointed Valuers do not
appoint the Arbitrator then any of those appointments shall
be made on behalf of the party which did not make the
appointment by the President of the Institute of Valuers
upon the request of either the Lessor or the Lessee as the
case may be.
2.3.1.6 The costs of the determination of each of the Appointed
Valuers shall be borne by the party which appointed them or
on whose behalf they were appointed pursuant to subclause
2.3.1.5 and the costs of the Arbitrator shall be borne
equally by the Lessor and the Lessee.
2.3.2 Until the annual Rent from a Rent Review Date is agreed or
determined the Lessee shall pay to the Lessor a rental equivalent to
the Rent payable immediately prior to the Rent Review Date, Any
further sum which shall be payable by the Lessee from the Rent
Review Date as a result of agreement or determination (as the case
may be) shall be paid in full to the Lessor immediately that sum is
known.
2.3.3 Notwithstanding the failure by the Lessor for any reason to give the
notice referred to in paragraph 2.3.1.1 above within the time
therein specified the right to give the notice and the effect of the
notice (whenever given) shall remain in full force and effect as if
it had been given within the specified time.
2.3.4 In no event shall the Rent be less than that payable immediately
before the relevant Rent Review Date.
3. LESSEE'S COVENANTS
The Lessee COVENANTS with the Lessor that:
3.1 Payment of Rent
The Rent shall be paid by the Lessee free of deductions to the Lessor at
the times, in the manner and at the address referred to in Item 3 of the
Schedule or to such other place or to such agent or to such bank or other
financial institution account as the Lessor shall from time to time
specify by notice in writing to the Lessee.
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3.2 Operating Expenses
The Lessee shall pay to the Lessor the Lessee's Proportion of Operating
Expenses in the manner provided in this clause 3.2:
3.2.1 In this clause 3.2 the following terms have the following meanings:
"Accounting Period" means the Preliminary Period or Lease Year as
the case may be;
the Aggregate Operating Expenses shall mean the total amount
expended by the Lessor including provisions and adjustments
appropriate for the Preliminary Period or any Lease Year (as the
case may be) on the following items:
(a) all rates and charges payable to the relevant Local Authority
Metropolitan Authority Water and sewerage rates and charges
for excess water and any other rates and charges payable to
any other Local or Public Authority in respect of both the
Building and/or the Land (other than those assessed in respect
of the Premises);
(b) all Land Tax Metropolitan Improvement Tax or any similar tax
and other taxes rates charges and assessments and other
outgoings of a like nature now or hereafter imposed payable or
charged upon the Land or the Building or otherwise chargeable
against or to the Lessor whether Governmental,
semi-Governmental, Municipal or otherwise (other than those
payable in respect of the Premises) PROVIDED THAT for the
purpose of this clause Land Tax and Metropolitan Improvement
Tax shall be calculated on the basis that the land on which
the tax is assessed is the only land of which the Lessor is
the owner within the meaning of that term in the Land Tax
Assessment Act 1976;
(c) all costs including electricity and any other source of power
used or associated with the running maintenance and repair of
all plant machinery end equipment including the fire sprinkler
system Air Conditioning Plant lifts elevators and lighting
installed by the Lessor in and including but without limiting
the generality aforesaid the fees and/or premiums payable to
specialist contractors and/or the wages paid to permanent
staff employed and the cost of materials used by the Lessor in
or about the maintenance and servicing of such plant and
equipment;
(d) insurance including insurance on structures and breakdown
insurance in respect of machinery therein; Public Risk
insurance effected by the Lessor on behalf of the Lessor and
the Lessee and all other Lessees or occupiers of the Building;
Workers' Compensation, Common Law and Statutory Liability
insurance in respect of employees employed on in or about the
Common Areas; loss of rent insurance and any other insurance
effected by the Lessor in relation
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to any risk relation to the Lessor's ownership or interest in
the Building the Common Areas or the Land;
(e) cleaning of the Common Areas and signs;
(f) lighting of the Common Areas and signs including replacement
of light globes and fluorescent tubes;
(g) gardening and landscaping expenses reasonably incurred by the
Lessor;
(h) caretaking expenses reasonably incurred by the Lessor;
(i) maintenance and repairs of the Building and the Common Areas;
(j) garbage and waste disposal:
(k) cost of administration of the Building;
(l) any other expenditure reasonably and properly incurred by the
Lessor in the operation and promotion of the Building and any
additions thereto;
(m) such sum (but in any year not exceeding FIVE PERCENTUM (5%) of
all other operating expenses of that Lease Year) in each Lease
Year as the Lessor may reasonably decide to set aside as a
fund to cover repairs renovations replacements and maintenance
of a substantial but infrequent or irregular nature of the
Building PROVIDED ALWAYS THAT any expenditure of the nature
aforesaid shall only be deemed as an operating expense as
otherwise herein provided to the extent to which the fund
shall not be sufficient at that time when such expenditure is
actually made;
(n) all taxes and statutory charges associated with the matters
mentioned in this clause including but not limited to
payroll-tax, financial institutions duty, bank debits tax, tax
on goods and services and taxes of a type not charged at the
Commencement Date but excluding only income tax or other tax
imposed upon the Lessor otherwise than in respect of ownership
or operation of the building;
(o) management fees payable by the Lessor to any agent for
managing this Lease or the Premises;
but excludes if the Premises do not comprise the whole of the
Land:
(i) any item of expenditure incurred as a result of some
only of the premises in the Building or on the Land
being open outside the standard trading hours if the
Premises were not so open;
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(ii) any item of expenditure that is not referable to the
Premises;
(iii) any item of expenditure that is assessed in respect of
other premises in the Building or on the Land and which
is payable by the occupier of that other premises;
"Lease Year" shall mean each twelve month period from 1st July to
30th June inclusive in each year during the term of this lease.
"Lease Year" also includes the period from the 1st July to the date
the Lease expires or is otherwise terminated;
"Lessee's Proportion of Outgoing Expenses" means the whole of the
Aggregate Operating Expenses.
"Operating Expenses Statement" means the written statement required
to be given by the Lessor to the Lessee pursuant to s12(d)(ii) of
the Retail Shops Act.
"the Preliminary Period" shall mean the period commencing midnight
on the day preceding the Commencement Date of this Lease and
terminating at midnight on the 30th June next following the
Commencement Date;
3.2.2 Prior to the Commencement Date of this Lease and prior to the 30th
June in each Lease Year or as soon as practicable thereafter the
Lessor shall notify the Lessee in writing of the estimated amount of
the Aggregate Operating Expenses for the Preliminary Period and for
each succeeding Lease Year (as the case may be) and of the Lessee's
Proportion of Operating expenses.
3.2.3 The Lessee shall pay to the Lessor on account of the Lessee's
Proportion of Operating Expenses an amount to be calculated as
follows:
(a) for the Preliminary Period the Lessee shall pay to the Lessor
the Lessee's Proportion of Operating Expenses as notified to
the Lessee pursuant to clause 3.2.2 for the Preliminary Period
by equal calendar monthly payments in advance payable on the
days on which Rent is payable as herein provided;
(b) for the residue of the Term the Lessee shall pay to the Lessor
the Lessee's Proportion of Operating Expenses as notified to
the Lessee pursuant to clause 3.2.2 for the relevant Lease
Year by equal calendar monthly instalments in advance payable
on the days on which Rent is payable as herein provided.
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3.3 Goods and Services Tax
3.3.1 In this clause:
3.3.1.1 "the Act" means all acts, statutes or other laws
implementing the GST including all amendments thereto;
3.3.1.2 if the expressions (or any of them) "Goods", "Services" and
"Taxable Supply" are defined in the Act, they will have the
same meaning assigned to them by Act;
3.3.1.3 "Lease Payments" means any payment required to be made by
the lessee to the Lessor pursuant to this Lease including
but not limited to Rent and Lessee's Proportion of Operating
Expenses (if applicable).
3.3.2 If a GST applies or may apply to impose tax on the Lease Payments or
any part thereof, then with effect as and from such date as may be
nominated in writing by the Lessor in its absolute discretion, the
following will apply:
3.3.2.1 this Lease will be treated as taxable;
3.3.2.2 the Lessee must do everything reasonably requested by the
Lessor including the making of any election required under
the Act to ensure that this Lease is treated as taxable for
GST purposes from the nominated date:
3.3.2.3 the Lease Payments are not inclusive of GST:
3.3.2.4 despite any other provision contained in this Lease to the
contrary:
3.3.2.4.1 the Lessor can either require the Lessee to pay or
may recover from the Lessee, in addition to the
Lease Payments, the amount of any GST which is
Chargeable on any Lease Payments or Taxable Supply
under or in connection with this Lease;
3.3.2.4.2 unless the Lessor, in its absolute discretion
otherwise directs (which direction the Lessee must
promptly observe), the Lessee must pay any amount
payable under this clause on the date on which the
Lease
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Payments or the relevant portion thereof is
payable;
3.3.2.5 if the Lessee defaults in payment on the due date of any
amount under the preceding paragraph then, without prejudice
to the Lessor's other rights and remedies, the Lessee must
pay to the Lessor upon demand an amount equal to the amount
of any additional tax, fine or penalty that has become
chargeable or payable under the Act plus an amount
sufficient to provide for any further GST chargeable on such
payment;
3.3.2.6 as between the Lessor and the Lessee, the Lessor is not
obliged to pay for any GST or additional tax, fine or
penalty or to take any other steps to minimize the same
until the corresponding payment is received from the Lessee.
3.3.3 To the extent, if any, to which the previous provisions of this
clause or other provisions of this Lease do not already require the
Lessee to pay to the Lessor an amount equal to any GST which is
charged or levied or paid by the parties ("Additional GST") in
connection with procuring the goods, services and other things which
the Lessor in turn provides to the Lessee under or in connection
with this Lease, then so much of the Additional GST for which the
Lessor cannot or does not obtain a credit against the Lessor's
liability to pay GST, as may be attributed to the goods, services
and other things provided under or in connection with this Lease
will be paid by the Lessee to the Lessor upon demand.
3.4 Power Telephone and Other Services
The Lessee shall pay not later than seven (7) days prior to the due date
for payment specified in the first account or demand received in respect
thereof all charges for water, excess water, gas, electricity, fuel,
telephone or other services, utilities or facilities (in respect or meter
rental use or consumption calls reconnection relocation or otherwise)
relating to the Premises or the use or occupation thereof.
3.5 Payment of Costs
The Lessee shall pay on demand to the Lessor.
3.5.1 all reasonable legal costs charges and expenses incurred by the
Lessor as a result of or attributable to any default or alleged
default by the Lessee in observing or performing any of the Lessee's
Covenants including without limitation all costs charges expenses
and fees relating to the preparation and service of a notice under
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Section 81 of the Property Law Act 1969 requiring the Lessee to
remedy any breach of any of the Lessee's covenants notwithstanding
that forfeiture for the breach shall be avoided otherwise than by
relief granted by the Court;
3.5.2 the costs of the Lessor's solicitors of and incidental to the
instructions for and drawing and engrossing and stamping and
registering this Lease and all counterparts thereof and all
negotiations and drafts in respect thereto;
3.5.3 interest at the Prescribed Rate on all Rent and other monies payable
by the lessee to the Lessor under this Lease but unpaid for more
than seven (7) days from the respective due date computed on daily
basis on the amount from time to time remaining owing from and
including the due date until the date of payment.
3.6 Indemnities
The Lessee shall use occupy and keep the Premises at the risk of the
Lessee in all respects and releases to the full extent permitted by law
the Lessor its employees agents and contractors from all costs claims
actions proceedings demand expenses judgments damages or losses of any
kind whatever resulting from or attributable to any accident damage loss
death or injury occurring at in or on or in the vicinity of the Premises
except to the extent that the same is caused by the negligence on the part
of the Lessor its employees agents or contractors. Without limiting the
generality of the foregoing the Lessee shall indemnify and keep
indemnified the Lessor from and against:
3.6.1 all costs claims actions proceedings demands expenses judgments
damages and losses suffered or incurred by the Lessor in connection
with or resulting from the loss of life of or personal injury to any
person or damage to any property wherever occurring arising from or
out of or attributable to any occurrence in or about the Premises
occasioned wholly or in part by any act neglect default or omission
by the Lessee or any of the Lessee's Employees or Visitors at in or
on or in the vicinity of the Premises; and
3.6.2 any damage to the Premises or any other land or building or other
property arising from or attributable to;
3.6.2.1 the negligent use or misuse by the Lessee or any of the
Lessee's Employees or Visitors of any fixtures and fittings
furnishings plant or equipment used or required in
connection with the Lessor's Purposes or to the negligent
use, misuse, waste or abuse of the water, gas, fuel,
electricity, or other services or utilities or facilities in
the Premises; or
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3.6.2.2 the escape overflow or leakage of water or other fluids
having origin within the Premises or of rain water.
3.7 Insurance
3.7.1 Notwithstanding anything appearing in clause 3.2 the Lessee shall at
the Lessee's expense effect and at all times maintain with a public
Insurance office approved by the Lesser on behalf of the Lessee end
the Lessor for their respective rights and interests:
3.7.1.1 a policy to cover all plate glass (if any) in the Premises
against damage or destruction to the full insurable value
thereof and
3.7.1.2 a public liability policy with a cover of not less than FIVE
MILLION DOLLARS (S5,000,000.00) or any increased sum which
the Lessor may from time to time specify in respect of
anyone occurrence. The policy of Insurance shall cover all
claims demands proceedings judgments damages costs and
losses of any nature whatsoever in connection with the loss
of life of and or personal injury to any person and or
damage to any property (wheresoever occurring) arising from
or out of any occurrence at or in the vicinity of the
Premises or any part thereof or occasioned wholly or in part
by an act neglect default or omission by the Lessee or by
the Lessee's Employees or Visitors.
3.7.2 All monies recovered in respect of any insurance under paragraphs
3.7.1.1 and 3.7.1.2 above shall be forthwith expended by the Lessee
in the satisfaction reinstatement or replacement of those items for
which the monies are received to the extent that those monies are
sufficient for the purpose and the Lessee shall make up any
deficiency from the Lessee's own monies.
3.8 Evidence of Insurance and Renewal
The Lessee shall pay not later than seven (7) days prior to the date for
payment specified in the first premium notice or demand received in
respect thereof all premiums in respect of the insurances to be effected
and maintained by the Lessee as herein provided and on demand shall
produce any evidence of the policies and of the renewal thereof which the
Lessor may from time to time require.
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3.9 Voiding Insurance Policies
The Lessee shall not at any time during the Term do, permit or suffer to
be done any act matter or thing upon the Premises whereby any insurances
in respect of the Premises may be vitiated or rendered void or voidable or
whereby the rate of premium on any insurance shall be liable to be
increased. If the Lessee shall do or permit to be done any act matter or
thing which has the effect of invalidating or avoiding any policy of
insurance taken out by the Lessor or the Lessee then the Lessee shall be
responsible for any damage or loss which they may suffer or incur as a
result thereof and shall pay to the Lessor any increased amount of premium
over the existing premium which may be charged on any insurance covering
the Premises (or the Building of which the Premises forms a part if the
Premises are only part of the Building) (and anything contained therein)
if the increased amount is used by the nature of the business from time to
time carried on by the Lessee or other occupier on the Premises or by
reason of any act or omission of the Lessee or other occupier of the
Premises
3.10 Hazards
The Lessee shall not without obtaining the Lessor's prior written consent
bring onto or keep or permit to be brought onto or kept in or about the
Premises any article thing or substance of a dangerous hazardous or
inflammable nature or permit any conduct in or about the Premises which
shall or may increase the rate of any premium payable in respect of any
policy of insurance in relation to the Premises. If:
3.10.1 in contravention of the above any policy of insurance is
invalidated avoided or the payment of any monies thereunder
refused then without prejudice to any other claims or rights of
the Lessor: and
3.10.2 as a result of a contravention of the above any extra premium
shall be payable in respect of any insurance policy the Lessee
shall forthwith pay all extra premiums.
3.11 Repairs and Maintenance
The Lessee shall at the Lessee's expense:
3.11.1 keep the Premises and all additions thereto the exterior and
interior entrances thereto and all plate glass (if any) all
sewerage water electrical and plumbing installations fixtures and
fittings all Air-Conditioning Plant floor coverings windows
partitions fixtures fittings plant equipment and furnishings
including doors door locks and fittings therein clean and in good
substantial and functional repair order and condition (damage by
any risk insured against to the extent of the monies recovered
under any insurance cover excepted):
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3.11.2 repair and make good any damage to the premises or any fixtures
and fittings furnishings plant and equipment respectively
comprised therein resulting from or attributable to the want of
care negligence misuse or abuse by the Lessee or any of the
Lessee's Employees or visitors or from any breach of any of the
Lessee's Covenants; and
3.11.3 replace forthwith in the Premises an electric light fittings light
bulbs globes and fluorescent tubes which may become damaged broken
or which shall fail to function.
3.12 Painting
Unless specified to the contrary in item 9 of the Schedule during the
final two (2) months of the Term or upon the earlier determination of the
Term and if the Term Is extended or renewed during the last two (2) months
or any extended or renewed term or upon the earlier determination thereof
the Lessee shall paint, paper and decorate all those parts of the interior
and exterior of the Premises as have been previously painted papered or
decorated in a good and tradesmanlike manner and with good quality and
suitable materials in colours and designs previously approved of by the
Lessor.
3.13 Cleaning
The Lessee shall at the Lessee's expense;
3.13.1 Keep the Premises end its entrances and surrounds in a thorough
state of cleanliness and not allow to accumulate or remain therein
or thereabouts any discarded rubbish papers cartons boxes
containers or other waste products and shall leave such rubbish or
containers outside the Premises only in those areas and at those
times and for those periods from time to time prescribed for that
purpose by the Lessor:
3.13.2 Keep the Premises free and clear of all rodents vermin insects
birds animals termites and other pests end if the Lessee fails to
do so the Lessee shall if and so often as necessary employ pest
exterminators approved by the Lessor to carry out the necessary
work: and
3.13.3 If required by the Lessor permit access by any cleaning contractor
and its employees and sub-contractors nominated by the Lessor to
the Premises at all necessary times for cleaning purposes.
15
3.14 Further Repairs and Maintenance
The Lessee shall at the Lessee's expense:
3.14.1 keep and maintain all fixtures fittings furnishings plant and
equipment in the Premises in a clean and fully functional
condition (damage by any risk insured against to the extent of the
monies recovered under any insurance cover excepted);
3.14.2 employ forthwith upon the same becoming necessary such qualified
tradesmen or contractors approved by the Lessor to remedy any
malfunction in any fixtures fittings furnishings plant and
equipment;
3.14.3 clean regularly any grease traps (whether within the Premises or
not) serving the Premises;
3.14.4 keep and maintain all gardens, lawns, court yards, grounds and
yards (if any) in a good, clean, neat and tidy state of repair and
condition; and
3.14.5 keep the Lessor indemnified in respect of all the matters referred
to in paragraphs 3.14.1, 3.14.2 and 3.14.3 above.
3.15 Malfunctions in the Premises
The Lessee shall pay to the Lessor forthwith upon demand the cost of
remedying any malfunction in or damage to any of the Lessors fixtures
fittings furnishings plant and equipment in the Premises caused by or
contributed to by any act neglect or default on the part of the Lessee or
the Lessee's Employees or Visitors.
3.16 No Alterations or Additions
3.16.1 The Lessee shall not without obtaining the prior written approval
of the Lessor:
3.16.1.1 make or permit to be made any alterations or additions
in the construction or arrangement of the Premises
(including without limitation any partitions or any
major plumbing electrical airconditioning emergency or
other installations or services in or used in connection
with the Premises):
3.16.1.2 cut maim or injure any of the walls proofs partitions
Umbers doors or floors of the Premises; or
16
3.16.1.3 erect or install any internal partitions fixtures or
fittings in the Premises.
3.16.2 Any works approved by the Lessor shall be carried out:
3.16.2.1 only by contractors or tradesmen approved of by the
Lessor and in accordance with plans specifications and
schedules of works materials and finishes approved in
writing by the Lessor before any works are commenced:
and
3.16.2.2 at the Lessee's expense in all respects including the
costs of any architects builders or other qualified
persons consulted by the Lessor in considering any
proposals and in examining the progress and completion
thereof and all costs in relation to the relocation or
alteration of or adjustment to any major plumbing
electrical air-conditioning emergency or other
installations and services affected by those works.
3.16.3 At the expiration or sooner determination of the Term the Lessee
shall if so required by the Lessor and at the Lessee's expense
restore the Premises to their condition as existed prior to the
carrying out of any works and make good to the reasonable
satisfaction of the Lessor all damage to the Premises occasioned
thereby.
3.17 Legislation Orders and Regulations
3.17.1 The Lessee shall at the Lessee's expense duly and punctually
comply with and observe and indemnify the Lessor in respect of all
present and future Acts (State or Federal) ordinances orders
regulations and by-laws and all orders requirements and notices
from or by any Local or Public Authority which relate or apply to
the Premises or any part thereof or the use or occupancy thereof
or the number or sex of the persons working in or from or at any
time occupying or visiting the Premises including the carrying out
of any repairs alterations or works to or the provision of fire
alarms or other emergency services in or for the Premises.
3.17.2 If any compliance or observance includes a requirement for
structural alterations or additions to the Premises the Lessee's
obligations hereunder shall in respect thereof only apply thereto
insofar as they relate to the Lessee's business or the use to
which the Premises are put by the Lessee or the number or sex of
the Lessee's Employees or Visitors.
3.17.3 All works which the Lessee is required to carry out shall be
carried out only by
17
contractors and tradesmen approved of by the Lessor and in
accordance with plans specifications and schedules of works
materials and finishes approved in writing by the Lessor before
any works are commenced.
3.18 Permitting Lessor to Enter and Inspect
When and so often as the Lessor shall require the Lessor may by itself and
or any person so authorised by the Lessor enter the Premises at all
reasonable times and upon giving reasonable prior notice (except in case
of emergency) to the Lessee to view the state of repair and condition
thereof and to make any reasonable investigations which the Lessor may
deem necessary to ascertain whether or not there has been any breach of
any of the Lessee's Covenants and to serve upon the Lessee a notice in
writing of any default there found requiring the Lessee to remedy the
default in accordance with any covenant.
3.19 Lessor's Rights to Repair
3.19.1 If the Lessee fails to remedy any breach of any of the Lessee's
obligations to repair under the terms of this Lease within
fourteen (14) days of the date of service of a notice upon the
Lessee requiring the Lessee to remedy the breach the Lessor
without being under any obligation so to do may itself or by its
employees agents and contractors without further notice enter the
Premises at any time and to any extend necessary remain thereon
with all necessary plant equipment and materials and carry out any
repairs which the Lessor shall think fit.
3.19.2 If in the Lessor's opinion any repairs for which the Lessee is
liable are required to be carried out as emergency repairs the
Lessor and the Lessor's employees agents and contractors may
without any prior notice enter and to any extent necessary remain
on the Premises at any time to carry out any of those repairs and
in respect of any work carried out by the Lessor pursuant to this
subclause or the preceding subclause the Lessee shall pay on
demand to the Lessor or the cost and expenses (Including interest
at the Prescribed Rate) incurred in making the repairs and shall
indemnify the Lessor from and against any loss or liability
incurred by the Lessor in respect of the default.
3.20 Air-Conditioning Plant
Where any Air-Conditioning Plant is provided or installed in the Premises
by the Lessor:
3.20.1 the Lessee shall at all times comply with and observe the
reasonable requirements of the Lessor in relation to the
Air-Conditioning Plant and shall not do. or permit or
18
suffer to be done, anything in relation to the same or otherwise
which might interfere with or impair the efficient operation of
the Air-Conditioning Plant;
3.20.2 if the Air-Conditioning Plant fails to function for any reason,
the Lessee shall not by reason of any failure be entitled to
determine this Lease, nor shall the Lessee have any right to
abatement of Rent or any right of action or claim for compensation
or damages against the Lessor in respect thereof;
3.20.3 the Lessee shall allow the Lessor and the Lessor's engineers,
mechanics, consultants and workmen at reasonable times and upon
giving reasonable prior notice to the Lessee to enter and to the
extent necessary to remain on the Premises to examine all or any
of the Air-Conditioning Plant but that in carrying out such
examination the Lessor shall not cause any undue interference to
the Lessee in the Conduct of business in the Premises;
3.20.4 the Lessee shall at all times during the Term, keep the
Air-Conditioning Plant in good working order and shall repair and
maintain the Air-Conditioning Plant whenever required in
accordance with the manufacturer's specifications relating to the
same; and
3.20.5 the Lessee shall not cover or obstruct any ducts inlets or outlets
of the Air-Conditioning Plant.
3.21 No Auction Sales
The Lessee shall not hold nor permit any auction fire or bankruptcy sale
in the Premises without obtaining the prior written consent of the Lessor.
3.22 Keeping Authorised Signs In Good Order
The Lessee shall at all times maintain in good order condition and repair
(damage by any risk insured against to the extent of the monies
recoverable under any insurance cover excepted) and if appropriate pay all
monies payable under and comply with all licence or leasing agreements in
respect of any television or radio antenna or mast or other apparatus sign
awning canopy decoration lettering advertising device notice matter or
thing approved by the Lessor pursuant to clause 3.24.
3.23 Nuisance
The Lessee shall not do or permit to be done in or about the Premises;
19
3.23.1 anything which may be a nuisance grievance disturbance or
annoyance to the Lessor or to any tenant or occupier of other
premises in the vicinity of the Premises: or
3.23.2 any act matter or thing whereby a nuisance or anything in the
nature of or which may be deemed to be a nuisance by any Local or
Public Authority body or person or within the meaning of any Act
(State or Federal) now or hereafter in force or any regulations or
by-laws made thereunder may exist arise or Continue upon or in
connection with the Premises or any business carried on therein or
therefrom or the use or occupation thereof and to abate forthwith
any nuisance or alleged nuisance and carry out and comply with the
provisions of every Act regulations and by-laws and with every
order notice or requirement of any Local or Public Authority in
reference thereto.
3.24 Use of Premises
The Lessee shall:
3.24.1 use the Premises only for the purpose of conducting therein the
business described in Item 6 of the Schedule and shall not without
obtaining the prior written consent of the Lessor use the Premises
for any other purpose;
3.24.2 obtain from any Local or Public Authority any approvals permits
consents or licenses required by law to carry on the Lessee's
business from the Premises;
3.24.3 not use or permit to be used the Premises for any unlawful immoral
noxious noisy offensive trade business occupation or calling; and
3.24.4 not use or permit to be used the Premises for any residential
purposes.
3.25 Town Planning
The Lessee shall not do or permit to be done anything in breach of an
applicable town planning scheme or zoning or whereby the zoning or
permitted use of the Premises for their present purposes under any Act
bylaw order or scheme relating to town planning may be prejudiced or
altered.
3.26 Lessee's Representative
The Lessee shall notify the Lessor and the Lessor's Agent (if any) of the
name address and business and after hours telephone number of a person to
be authorised by the Lessee to
20
control any internal security system within the Premises to enable the
Lessor or the Lessor's agents or contractors to gain access to the
Premises whenever pursuant to the terms of this Lease access is required
or permitted and to advise the Lessor forthwith in writing of any change
of the nominated person or other particulars.
3.27 Access to Premises
The Lessor shall be entitled by itself and by its employees consultants
inspectors agents and contractors whenever deemed necessary by the Lessor
to enter (and to the extent necessary to remain on) the Premises at all
reasonable times and upon giving reasonable prior notice to the Lessee
with all necessary plant equipment and materials to erect make excavate
lay or install in on over or under the Premises and to make use of any
pipe wire amplifier light alarm channel drain sump vent duct inlet outlet
plant or machinery or other thing requisite for or in addition to any of
the Lessor's Purposes and to enter upon the Premises at those times for
the purpose of inspecting removing maintaining replacing repairing
servicing altering or adding thereto in or about the Premises or the walls
floors and ceilings thereof. The Lessor shall cause as little
inconvenience disruption or damage to the Lessee as possible and the
Lessee shall have no right to any abatement of Rent or compensation or
damages in respect thereof.
3.28 Assignment and Subletting
3.28.1 The Lessee shall not assign sublet transfer or part with
possession of or mortgage charge or otherwise encumber the
Premises or any part thereof or the benefit of this Lease or any
estate or interest therein or herein without obtaining the prior
written consent of the Lessor and the provisions of Sections 80
and 82 of the Property Law Act 1969 shall not apply to this
Lease. The Lessor's consent shall not be unreasonably withheld if:
3.28.1.1 the Lessee shall prove to the satisfaction of the Lessor
that the proposed sub-lessee or assignee is a
respectable responsible and solvent person of sound
financial standing capable of adequately carrying on the
business to be carried on by him in the Premises;
3.28.1.2 all Rent and other monies (and interest) then due and
payable by the Lessee pursuant to this Lease shall have
been paid;
3.28.1.3 there shall not be at the time the consent is sought or
at the date any sublease or assignment is to take effect
any subsisting breach of any of the Lessee's Covenants;
21
3.28.1.4 In the case of an assignment the assignee executes a
Deed whereby the assignee covenants with the Lessor to
observe and perform all of the Lessee's Covenants and
the Lessee releases the lessor from all claims which the
Lessee may then have or may thereafter have against the
lessor in respect of or in any way arising from this
Lease the Deed to be prepared by the Lessor's solicitors
3.28.1.5 In the case of a mortgage charge or encumbrance the
encumbrancer enters into a Deed with the Lessor in a
form reasonably required by the Lessor's solicitors to
protect the Lessor In case of default powers being
exercised;
3.28.1.6 where any proposed sub-lessee or assignee is a
Corporation the directors and principal shareholder
thereof at their expense execute and complete a Deed of
Guarantee and Indemnity in a form approved by the
Lessor's solicitors in favour of the Lessor in respect
to the payment of all Rent and the observance and
performance of all of the Lessee's Covenants;
3.28.1.7 the Lessee pays to the Lessor all reasonable costs and
expenses including legal costs administrative costs
stamp duty and other disbursements incurred or to be
incurred by the Lessor in respect of a Deed executed
pursuant to clause 3.34.1.4 or 3.34.1.5 or 3.34.1.6;
3.28.1.8 the Lessee has delivered to the proposed assignee a
completed disclosure statement in the form prescribed by
Section 6 of the Retail Shops Act (if applicable) signed
by or on behalf of the Lessee;
3.28.2 Where the Lessee is a corporation (not being a company whose
shares are listed on any Stock Exchange in Australia) any change
of the beneficial ownership or substantial shareholding (within
the meaning of Part 6.7 of the Corporations Law) in the
corporation or any related corporation (within the meaning of
Section 50 of the Corporations Law) shell be deemed to be an
assignment of the Premises and the benefit of this Lease and shall
be subject to the terms specified above.
3.29 Lessee's Liabilities to Continue
The covenants and agreements on the part of any assignee or sub-lessee
with the Lessor expressed or implied in any Deed evidencing any assignment
or sub-lease shall be deemed
22
to be supplementary to those contained In this Lease and shall not in any
way relieve or be deemed to relieve the Lessee from the Lessee's
liabilities hereunder during tile Term and the Extended Term (if any).
3.30 Caveats
The Lessee may during the Term lodge a subject to claim caveat against the
Land. The Lessee shell not at any time lodge an absolute caveat against
the Land. The Lessee shall at the expiration or sooner determination of
the Term or upon assigning this Lease or at any time at the request of the
Lessor sign and lodge at the Lessee's expense a proper registrable
withdrawal of any subject to claim caveat lodged against the Land by the
Lessee. If the Lessee lodges an absolute caveat or falls to withdraw any
subject to claim caveat the Lessee in consideration of the Lessor granting
this Lease to the Lessee irrevocably APPOINTS the Lessor the agent and
attorney of the Lessee to Sign and lodge any withdrawal of caveat the cost
of which shall be borne and paid by the Lessee forthwith upon demand.
3.31 Give Notices
The Lessee shall forthwith:
3.31.1 on receipt thereof give to the Lessor copies of any notice
received by the Lessee from any court or Local or Public Authority
relating to the Premises or any part thereof or the use or
occupation thereof;
3.31.2 upon any person dying or receiving any injury in the Premises or
upon any accident occurring to or defect being found in any
sanitary water gas or electric pipes or wires fixtures fittings
plant or equipment or furnishings in the Premises give to the
Lessor written notice and those full particulars thereof known to
the Lessee; and
3.31.3 give to the Lessor and any appropriate Local or Public Authority
written notice of any infectious illness occurring on the Premises
and shall at the Lessee's expense thoroughly fumigate and
disinfect the Premises to the satisfaction of the Lessor and those
authorities and otherwise comply with their reasonable
requirements in regard thereto.
3.32 Permit Intending Tenants or Purchasers to Inspect
3.32.1 At all times within the period of three (3) months immediately
prior to the expiration or sooner determination of the Term the
Lessee shall permit the Lessor and the Lessors Agent at all
reasonable times and upon giving reasonable prior notice to the
Lessee to enter the Premises with and exhibit the same to
prospective tenants and
23
the Lessee shall allow the Lessor to affix and exhibit where the
Lessor shall think fit any notice or sign for reletting the
Premises.
3.32.2 The Lessee shall allow the Lessor and the Lessor's Agent at
reasonable times and upon giving reasonable prior notice to the
Lessee during the Term to enter the Premises with and exhibit the
same to prospective purchasers and the Lessee shall allow the
Lessor to affix and exhibit where the Lessor shall think fit any
notice or sign for selling the Premises and the Lessee shall not
without obtaining the Lessor's consent remove deface or obscure
any notice or sign nor permit the same to be removed defaced or
obscured.
3.33 Remove Fixtures and Fittings
Before the expiration or sooner determination of the Term the Lessee shall
remove from the Premises all items which shall have been erected or
installed by the Lessee or any previous tenant or occupier of the Premises
during the Term (other than any fixtures and fittings plant equipment and
furnishings which in the reasonable opinion of the Lessor from an integral
part of the Premises Including without Illumination all light fittings
located in or affixed to the Premises) and make good to the satisfaction
of the Lessor any damage whatsoever caused to the Premises by such
erection installation or removal, If required by the Lessor the Lessee
shall also re-alter any alterations made to the Premises during the Term
so that the Premises are restored to their condition as at the
Commencement Date. Any fittings fixtures plant equipment and furnishings
not removed by the Lessee either as of right or by requirement of the
Lessor after the expiration or other termination of this Lease shall be
deemed to have been abandoned by the Lessee and shall be and become the
property of the Lessor without any right by the Lessee to make any claim
whatever against the Lessor in respect thereof.
3.34 Keep Secure
The Lessee shall:
3.34.1 use its best endeavors to protect and keep safe the Premises and
any property contained therein from theft or robbery: and
3.34.2 keep all doors windows and other openings closed and securely
fastened when the Premises are not in use.
3.35 Yield Up
At the expiration or sooner determination of the Term the Lessee shall
yield and deliver up possession of the Premises to the Lessor in a good
and substantial repair order and condition and state or cleanliness and
decoration consistent with the due and punctual observance and
24
performance by the Lessee of the Lessee's Covenants and shall surrender to
the Lessor or the Lessor's Agent all keys cards switching equipment
combinations identification cards or other devices for or enabling the
Lessee or the Lessee's Employees or Visitors to gain access to the
Premises or any part thereof.
4. LESSOR'S COVENANTS
The Lessor COVENANTS with the Lessee to the intent to bind the registered
proprietor from time to time of the Land but not so as to render the
Lessor personally liable for any breach of any of the covenants on the
Lessor's part herein expressed or implied unless arising from the
negligent acts of tie Lessor or the Lessor's agents or employees while the
Lessor remains the registered proprietor of the Land that the Lessee duly
paying the Rent and other moneys hereby reserved and observing and
performing the other Lessee's Covenants shall peaceably and quietly hold
and enjoy the Premises during the Term without any interruption by the
Lessor or any person rightfully claiming through under or in trust for the
Lessor except as herein authorised.
5. MUTUAL COVENANTS
The Lessor and the Lessee MUTUALLY COVENANT that:
5.1 Damages
5.1.1 The Lessee's obligations to observe or perform the Lessee's
Covenants shall survive the expiration or other termination of this
Lease and if the Lessee shall not have observed and performed the
same The Lessor may In addition to any other rights at its option
cause or do all things necessary for the observance and performance
and the Lessor may recover from the Lessee as a liquidated debt
payable on demand the costs and expenses thereof together with
interest at the Prescribed Rate on the amount thereof from time to
time remaining owing from the date at the expenditure of the costs
to the date of repayment thereof by the Lessee to the Lessor.
5.1.2 In respect of each day following the date of the expiration or
sooner determination of this Lease until the date on which the
Lessee shall complete the observance and performance of the
obligations of the Lessee's Covenants or any earlier date on which
the Lessor shall in exercise of its powers conferred by this Lease
cause any default by the Lessee in the observance or performance of
its obligations to be remedied the Lessee shall pay to the Lessor
and the Lessor may recover from the Lessee as and by way of
liquidated damages a daily sum equal to 1/365th of the aggregate of
the Rent and Lessee's Proportion of Operating Expenses payable by
the Lessee for or in respect of the Premises for the twelve (12)
months immediately
25
preceding the date of expiration or sooner determination of this
Lease.
5.2 Default Provisions
If:
5.2.1 the Rent or any part thereof shall at any time be unpaid for seven
(7) days after becoming due (whether formally demanded or not); or
5.2.2 the Lessee breaches or fails to observe or perform any other of the
Lessee's Covenants and the breach non-observance or non-performance
shall continue alter the expiration of fourteen (14) days (or, such
further time as the Lessor may in any case specify) of written
notice to the Lessee to remedy the same; or
5.2.3 the Lessee shall go into liquidation or become bankrupt or enter
into any composition arrangement with or assignment for the benefit
of the Lessee's creditors; or
5.2.4 the Lessee shall have appointed under any Act or instrument or by
order of any court a manager an administrator, a trustee, a receiver
or a receiver and manager or liquidator in relation to any part of
the Lessee's undertakings assets or property: or
5.2.5 the Premises shall be abandoned.
THEN and in any such case (but subject to and this clause shall not apply
to the extent of inconsistency with the Bankruptcy Act 1966) the Lessor
may at its option re-enter occupy and resume possession of the Premises or
any part thereof (with or without re-entering the Premises) by written
notice to the Lessee terminate this Lease and thereupon this Lease (other
than the provisions hereof applying for the benefit of the Lessor after
the expiration of the Term) the Term shall cease and determine but without
releasing the Lessee from the obligation to pay the Rent and Lessee's
Proportion of Operating Expenses accrued up to the time of the re-entry
and without prejudice to the right of action of the Lessor in respect of
any breach of the Lessee's Covenants.
5.3 Essential Term
The Lessee's covenants:
5.3.1 to pay the Rent and the Lessee's Proportion of Operating Expenses;
and
5.3.2 not to assign, sublet, transfer or part with possession of the
Premises or any part thereof or of the benefit of this Lease without
obtaining the prior written consent of
26
the Lessor.
are essential terms of this Lease and any breach of any of those covenants
shall be regarded by the Lessor and the Lessee as a fundamental breach and
repudiation by the Lessee of this Lease. If the Lessor determines this
Lease following such a breach and repudiation then (without prejudicing or
limiting any other right or remedy of the Lessor arising from the breach
or otherwise under this Lease) the Lessor shall be entitled to recover
from the Lessee and the Lessee covenants to pay to the Lessor as and by
way of liquidated damages for the breach and repudiation the aggregate of
the Rent and Lessees Proportion of Operating Expenses which would have
been payable by the Lessee for the unexpired residue of the Term remaining
after the determination after making allowances for Rent end Lessee's
Proportion of Operating Expenses which the Lessor by taking reasonable
steps to re-let the Premises obtains or could reasonably be expected to
obtain by reletting the Premises for the unexpired residue of the Term
PROVIDED THAT:
5.3.3 any reletting shall not be required to be on terms as are herein
expressed and implied:
5.3.4 the acceptance by the Lessor of arrears or any late payment of the
Rent or Lessee's Proportion of Operating Expenses shall not
constitute a waiver he essentiality of the Lessee's obligations to
make these payments;
5.3.5 the Lessors entitlement to recover damages as specified above shall
not be prejudiced or limited if:
5.3.5.1 the Lessee abandons or vacates the Premises;
5.3.5.2 the Lessor elects to re-enter the Premises or to determine
this Lease;
5.3.5.3 the Lessor accepts the Lessee's repudiation of this Lease;
or
5.3.5.4 the parties' conduct constitutes a surrender by operation of
law;
5.3.6 the Lessor shall be entitled to institute proceedings to recover
damages as specified above either before or after any of the events
or matters referred to in paragraph 5.3.6 above;
5.3.7 any conduct by the Lessor to mitigate damages shell not of itself
constitute acceptance of the Lessee's breach or repudiation or a
surrender by operation of law: and
27
5.3.8 nothing herein expressed or implied shall be construed to mean that
none of the other Lessee's Covenants may be an essential term,
5.4 Damage to the Premises
If the Premises or any part thereof at any time during the Term is resumed
or taken for any public purpose by any competent authority or is declared
unfit for occupation or ordered to be demolished by any competent
authority or is destroyed or damaged by any risk insured against so as to
render the same substantially unfit for the use and occupation of the
Lessee or so as (in either case) to deprive the Lessee of substantial use
of the same or so as (in the case of damage or destruction) to render In
the opinion of the Lessor the rebuilding or reconstruction of the Premises
in its previous form impracticable or impracticable, THEN;
5.4.1 this Lease may be terminated without compensation by either the
Lessor or the Lessee by notice in writing to the other PROVIDED THAT
the Lessee shall only be entitled to terminate this Lease if any
policy of insurance effected in respect of any damage or destruction
shall not have been vitiated or payment of the policy moneys refused
in consequence of some act or default of the Lessee or any of the
Lessee's Employees or Visitors and if the Lessor shall have failed
to rebuild or reinstate the Premises within a reasonable time after
notice in writing from the Lessee having regard to the extent of the
damage and the work required to rebuild or reinstate the Premises;
5.4.2 any termination shall be without prejudice to the rights of either
party in respect of any antecedent breech matter or thing;
5.4.3 nothing herein expressed or implied shall be deemed to impose any
obligation upon the Lessor to rebuild or reinstate the Premises or
to make the same fit for use and occupation of the Lessee;
5.4.4 if the provisions of the Retail Shops Act apply to this Lease then
unless approval has been obtained from tile Commercial Registrar for
the termination of the Lease pursuant to the preceding provisions of
this clause pursuant to Section 13(7) of the Retail Shops Act, the
Lessor may only terminate this Lease pursuant to this sub-clause at
a time after the day mentioned in Section 13(1)(a) or (b) (as the
case may be) of that Act; and
5.4.5 if any such resumption damage or destruction of the Premises occurs
the Rent or a proportionate part thereof depending on the nature or
extent of the resumption destruction or damage shall abate until the
Premises shall have been rebuilt or
28
reinstated or made fit for the occupation and use of the Lessee or
until the Lease shall have been terminated pursuant to the
provisions of paragraph 6.4.1 above as the case may be. Until mutual
agreement between the Lessor and the Lessee as to the extent of the
abatement or until determined as provided herein the Lessee shall
continue to pay the Rent In full and upon any agreement or
determination the Lessor shall refund free of interest to the Lessee
any Rent which according to the agreement or determination has been
overpaid. If any dispute arises with respect to the extent of the
abatement it shall be determined by arbitration as provided in
Clause 5.14;
5.4.6 notwithstanding anything in this sub-clause expressed or Implied the
Lessee shall have no right of termination and Rent shall not abate
if the destruction or damage or the fact of the Premises being
declared unfit for occupation or ordered to be demolished was caused
or contributed to by the Lessee or the Lessee's Employees or
Visitors.
5.5 Exclusion of Warranties
The Lessee acknowledges and declares that no promise representation
warranty or undertaking has been made or given by or on behalf of the
Lessor in regard to the suitability of the Premises for any business to be
carried on therein or therefrom or in regard to any fixtures fittings
furnishings finish plant machinery or equipment of or in the Premises or
as to the management or security of the Premises otherwise than as herein
expressly contained.
5.6 Ownership of Fixtures and Fittings
Any fixtures fittings chattels plant equipment and furnishings and other
material or articles installed or left by the Lessor in the Premises at
the Lessor's cost shall be deemed for all purposes to be pert of the
Premises arid shall remain the property of the Lessor and the Lessee shall
not at any time remove damage destroy alter or otherwise dispose of the
same without the prior written consent of the Lessor.
5.7 Exclusion of Liability
Notwithstanding any implication or rule of law to the contrary the Lessor
shall not in any circumstances be liable to the Lessee:
5.7.1 for any loss or damage suffered by the Lessee In consequence of or
attributable in any way to any malfunction or breakdown in
interference or interruption of or to the water gas electricity or
telephone services Air-Conditioning Plant emergency equipment
emergency or security procedures or any pipe wire amplifier light
alarm
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channel drain sump vent duct inlet outlet plant or machinery in or
connecting to the Premises or the Building or the Land or from the
breakage blockage or overflow of any sewer waste-drain conduit cable
wire gutter pipe or storm water drain from any cause whatsoever; or
5.7.2 for any damage or loss that the Lessee may suffer by reason of the
neglect or omission of the Lessor to do any act or thing to or in
respect of the Premises or the Building or the Land which (as
between the Lessor and the Lessee) the Lessor might be legally
liable to do unless the Lessee shall have given to the Lessor notice
in writing of the act or thing and the Lessor has without reasonable
cause failed within a reasonable time after to take proper steps to
rectify the act or omission.
5.8 Holding Over
If the Lessee continues to occupy the Premises after the expiration or
sooner determination of the Term with the consent of the Lessor then the
Lessee shall become a monthly tenant only of the Lesser but (unless
otherwise agreed) at a rent equal to one twelfth of the aggregate of the
Rent and Lessee's Proportion of Operating Expenses payable by the Lessee
immediately preceding the expiration or sooner determination and otherwise
on and subject to the same covenants and conditions mutatis mutandis as
are herein expressed or implied except that the monthly tenancy may be
determined by one month's notice in writing by the Lessor to the Lessee to
the other expiring at any time.
5.9 Moratorium
The application to this Lease of any moratorium or Statute (State or
Federal) having the effect of extending the Term reducing or postponing
the payment of the Rent or any part thereof or otherwise affecting the
operation of the Lessee's Covenants or providing for compensation rights
or privileges at the expense of the Lessor in favour of the Lessee or any
other person Is expressly excluded.
5.10 Severance
If any condition covenant or stipulation of this Lease or the application
thereof to any person or circumstances shall be or become invalid or
unenforceable the remaining covenants conditions and stipulations shall
not be affected thereby and each covenant condition and stipulation of
this Lease shall be valid and enforceable to the fullest extent permitted
by law.
5.11 Waiver
5.11.1 The Lessor's failure to take advantage of any default or breach of
covenant on the part of the Lessee shall not be or be construed as
a waiver thereof, nor shall any
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custom or practice which may grow up between the parties in the
course of administering this Lease be construed to waive or reduce
the right of the Lessor to insist upon the observance or
performance by the Lessee of any of the Lessee's Covenants.
5.11.2 No consent or waiver expressed or implied by the Lessor or on
behalf of the Lessor to or in respect of any particular breach of
any of the Lessee's Covenants shall be construed as a consent or
waiver to or of any other breach of the same or any other of the
Lessee's Covenants.
5.11.3 The acceptance by the Lessor of Rent or any other monies payable
by the Lessee hereunder shall not be nor be deemed to be a waiver
of any default or breach by the Lessee of any of the Lessee's
Covenants or the Lessor's knowledge thereof at the time of
acceptance thereof.
5.12 Service of Notices
Any notice demand or request required to be made or given pursuant to this
Lease shall be in writing signed by the party giving the notice or its
agent or solicitors and may be served personally or may be served by being
delivered or by being sent by prepaid certified post:
5.12.1 to the address specified herein of the party unless that party has
given notice of a substituted address for service of notices and
then at that substituted address; or
5.12.2 in the case of a person to the usual place of abode or business of
the person; or
5.12.3 in the case of a corporation to its registered office principal
place of business or principal office;
and shall be deemed to have been served
5.12.4 on the day of delivery if delivered before 5:00 p.m. on a business
day, and otherwise on the business day next following; or
5.12.5 on the business day next following the day of posting.
5.13 Option of Renewal
If the Lessee has duly and punctually observed and performed all of the
Lessee's Covenants during the Term then on the written request of the
Lessee made at least three (3) months before the expiration of the
relevant Term the Lessor shall grant to the Lessee an extension
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of the Term for the extended term or terms referred to in item 7 of the
Schedule (together the "Extended Term") containing like covenants and
provisos as are herein expressed and implied (save for the right of
extension the subject of this Clause which right shall be expressly
excluded from the Lease for the extended Term or from the Lease for the
last extended term if there shall be more than one extended term as the
case may be) and reserving to the Lessor a rent from the commencement date
of and during each Extended Term to be calculated and determined in
accordance with the rent review provisions contained herein.
5.14 Arbitration
If any difference or dispute shall arise between the Lessor and the Lessee
as to the interpretation of this Lease or concerning any act matter or
thing to be performed or observed hereunder and if there shall be no
express provision in this Lease for resolving the difference or dispute
then the difference or dispute shall, subject to the provisions of the
Retail Shops Act (if applicable) be determined by the arbitration of a
single arbitrator nominated by the President for the time being of the Law
Society of Western Australia (Inc.) and otherwise in accordance with the
provisions of the Commercial Arbitration Act 1985 and the award of the
arbitrator shall be final and binding upon the Lessor and the Lessee. The
Lessor and the Lessee may be represented by a duly qualified legal
practitioner in any arbitration proceedings.
5.15 Consent or Approval
Where the Lessee is required by this Lease to obtain the consent or
approval of the Lessor, approval or consent requested by the Lessee may
(unless otherwise expressly provided in this Lease) be given or refused by
the Lessor or given subject to whatever conditions the Lessor in its
absolute discretion determines.
5.16 Special Conditions
This Lease shall be subject to the special conditions (if any) specified
in Item 10 of the Schedule.
5.17 State Planning Commission Approval
If the aggregate of the Term exceeds twenty one (21) years or if for any
other reason this Lease shall require the consent of the State Planning
Commission of Western Australia then this Lease shall be subject to that
consent being given.
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5.18 Governing Law
The laws of the State of Western Australia (and where applicable the
Commonwealth of Australia) shall apply to this Lease.
EXECUTED as a Deed.
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THE SCHEDULE
Item I
Land: All that land commonly known as 42 Mercantile Way,
Malaga in the State of Western Australia and being more
particularly described as Lot 345 on Plan 22732, the
whole of the land in Certificate of Title Volume 2135
Folio 471.
Premises: The whole of the Land.
Lessors chattels: All chattels, plant and equipment of the Lessor in or
about the Premises.
Item 2
The term of this Lease: Five years
Commencement Date: 1 July 200
Expiration Date: 30 June 2005
Item 3
Rent: The Australian Dollar equivalent of US$85,000.00 per
annum determined as at the Commencement Date.
Address for payment To the Lessor at its address herein unless otherwise
of Rent: specified in writing by the Lessor.
Dates for payment The Lessee shall pay the annual rent by equal calendar
of Rent: monthly instalments in advance on and by 12 equal
calendar monthly instalments on the first day of each
and every month with the first calendar monthly payment
to be made on the Commencement Date.
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Item 4
Prescribed Rate: The higher of:
(a) Ten per centum (10%) per annum; or
(b) Two per centum (2%) more than the maximum rate of
interest (expressed as a rate per annum) charged
from time to time by BankWest on overdraft
accounts of less than ONE HUNDRED THOUSAND DOLLARS
($100,000.00).
Item 5
Rent Review Dates: Each anniversary of the Commencement Date
Item 6
Permitted Business: Office and Workshop
Item 7
The Extended Term: Not Applicable
Current Market Rental The best annual Rent that can be reasonably obtained for
Value the Premises in a free and open market and on the basis
of the Premises being available for leasing with vacant
possession by a willing lessor to a willing lessee for a
period equal to the Term and:
(a) assuming that the Premises are available for
leasing for a term equal to the Term;
(b) on the terms and conditions and for the permitted
use contained in this Lease and any other use to
which the Premises may be lawfully put;
35
(c) assuming that all of the covenants and obligations
on the part of the Lessee and the Lessor contained
in this Lease have been fully performed and
observed at the relevant Rent Review Date;
(d) having regard to the current market rental values
of comparable premises of a similar size and
location to the Premises in the Perth Metropolitan
Area;
(e) making no reduction on account of any period of
rent abatement financial contribution rent free
concessions or any reduction otherwise customarily
required or likely to be required to secure a new
lessee of the Premises or any actual period of
rent abatement reduction or concession granted to
the Lessee to secure the tenancy the subject of
this Lease;
(f) if at the relevant Rent Review Date the Premises
have been wholly or partially damaged or destroyed
assuming that the Premises have been reinstated
pursuant to clause 5.4;
but disregarding:
(g) any increase or decrease in the value of the
Premises as lettable premises by reason of the
occupancy or use of the same by the Lessee or any
sub-lessee assignee or transferee of the Lessee or
any other person deriving an interest in the
Premises through the Lessee;
(h) any value attaching to goodwill created by the
Lessee's occupation of the Premises or to any
licence or permit belonging to the Lessee in
respect of the business carried on by the Lessee
at the Premises;
(i) any deleterious condition of the Premises if the
condition results from any work carried out on the
Premises by the Lessee or by any breach of any
term of this Lease by the Lessee; and
(j) the Lessee's trade fixtures and fittings and any
improvements racking or installations erected or
installed at the Lessee's expense and which the
Lessee is permitted to remove at the expiration of
this Lease but taking into account permanent
structural improvements installed at the Lessee's
expense and which the Lessee may not remove at the
expiration of this Lease.
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Item 9 (Clause 3.11)
Painting Obligations As specified in Clause 3.1
of Lessee:
Item 10 (Clause 5.16)
Special Conditions: Nil
EXECUTED as a Deed
The COMMON SEAL of )
RAGLAN SECURITIES PTY LTD )
was hereunto affixed by authority )
of its Directors in the presence of: )
- ------------------------ ------------------------
Director Director/Secretary
The COMMON SEAL of )
ALLOY STEEL INTERNATIONAL INC )
was hereunto affixed by authority )
of its Directors in the presence of: )
- ------------------------ ------------------------
Director Director/Secretary
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