Annexure A
ANNEXURE A
REFERENCE SCHEDULE
LESSEE: / ADDRESS:
GUARANTOR:[Name of Guarantor] / ADDRESS:
PREMISES: / [Address of premises]
being the whole of the land comprised in certificate of title: / [Folio identifier]
ITEM1
BASE RENT: / $[Amount] per annum plus GST payable monthly in advance by instalments of $[Amount] plus GST being $[Amount] per month incl GST on the first day of each calendar month commencing on .
ITEM2
PERCENTAGE OF ANNUAL OUTGOINGS: / $[AMOUNT]
ITEM 3(a)
MARKET REVIEW DATES:
ITEM 3(b)
CPI REVIEW DATES:
ITEM 3(c)
PERCENTAGE INCREASE REVIEW DATES:
ITEM 3(d)
PERCENTAGE INCREASE: / %
ITEM4
PERMITTED USE: / Commercial Offices / Warehouse / Showroom
ITEM5
OPTION(S) FOR RENEWAL: / years commencing .
ITEM 6
GUARANTORS:
ITEM 7
BANK GUARANTEE/SECURITY DEPOSIT: / 3 months’ rent plus outgoings plus GST.
ITEM 8
OPERATING HOURS: / The operating hours of the Building are 8.00am to 6.00pm Monday to Friday, excluding public holidays.
ITEM 9
PUBLIC LIABILITY INSURANCE: / Lessee to insure to a minimum liability of $20,000,000.00.
1
Annexure A
LEASE TERMS
CONTENTS
Part 1DEFINITIONS AND INTERPRETATION
1.1Definitions
1.2Interpretation
Part 2RENT AND OUTGOINGS......
2.1Rent Payment
2.2Rent Review
2.3Statement of Outgoings
2.4Outgoings paid by Lessee
2.5GST
2.6Method of Payment
Part 3ABATEMENT
3.1Notice to Rebuild
3.2Notice to Terminate
3.3Termination following Failure to Rebuild
3.4Continued Occupation during Rebuilding
3.5Abatement of Rent
3.6No Requirement to Rebuild
3.7Disputes
Part 4RESUMPTION AND EASEMENTS
4.1Resumption
4.2Easements
Part 5USE OF PREMISES
5.1Permitted Use
5.2No Noxious Use
5.3Use of Accessories
5.4Drains and Wastes
5.5Services to the premises
5.6Walls
5.7Public Address System
5.8Cleaning
5.9Garbage and rubbish
5.10Rubbish Removal
5.11Overloading of Floors
5.12Machinery
5.13Electrical Equipment
5.14Fire safety
5.15Light and Air
5.16Animals
5.17Special Services
5.18Fittings and Fixtures
5.19Window Displays
5.20Glass and Signs
5.21Locks, Doors and Windows
5.22Light Bulbs, Tubes and Illuminated Signs
5.23Painting of Interior
5.24Notices from Public Authorities
5.25Pest Control
5.26Diseases
5.27Notice of Defects
5.28Exterior Signs
5.29Auctions
5.30Pick Up and Delivery
5.31Lessee Not to Cause Rent Reductions
5.32Lessee Not to Prejudice Superior Estate
5.33Smoking
Part 6ASSIGNMENT
6.1Consent to assignment
Part 7MAINTENANCE, REPAIR, ALTERATIONS, ETC.
7.1Maintenance and repair
7.2Repairs at end of term
7.3Alterations
7.4Partitioning
7.5Lessor May Enter to Repair
7.6Default in Repairing
7.7Lessor’s Rights to repair and maintain
7.8Notice of Alterations or refurbishment
7.9Liens created by Lessee
Part 8Environmental Clauses
8.1Environmental obligations of the Lessee
8.2Lessee to co-operate with Lessor’s Environmental Initiatives
Part 9AIR CONDITIONING, FIRE EQUIPMENT, LIFTS AND ESCALATORS
9.1Repair and Use
9.2Interference with Equipment
9.3Faulty Equipment
9.4Access to Contractors
9.5Lessee to Comply with Regulations
9.6Air Conditioning After Hours
9.7Operating Hours of Building
Part 10ELECTRICITY AND OTHER SERVICES
10.1Lessee to arrange services
10.2Lessee to pay for metered services directly
10.3Failure of services
Part 11OPTION TO RENEW
11.1Exercise of Option to Renew
11.2Purchaser of the premises
Part 12INSURANCE REQUIREMENTS
12.1Lessee to Effect Insurance
12.2Insurance by Sub-Lessees
12.3General Insurance Provisions
12.4Heating and Energy
12.5Insurance Not to be Avoided
12.6Fire Safety Regulations
12.7Additional or increased Premiums
12.8Lessor is the Attorney of the Lessee
Part 13INDEMNITIES
13.1Occupancy at Risk of Lessee
13.2Uninsured loss
13.3Indemnities
13.4No merger
Part 14ATTORNEY
14.1Lessor to be attorney of the lessee
Part 15QUIET ENJOYMENT AND HOLDING OVER
15.1Quiet Enjoyment
15.2Holding Over
Part 16DEFAULT AND TERMINATION
16.1Re-entry and Surrender of lease
16.2Essential Terms
16.3Payment of Rent after Default
16.4Lessor's right to Remedy Defaults
16.5Interest on overdue amounts
16.6Yielding Up Possession
16.7Lessee's Fixtures
16.8Lessee's Fixtures Not Removed
16.9Payment of Rent upon Default
Part 17COMMON AREAS
17.1Access to Common Areas
17.2Use of Common Areas
17.3Exclusion of persons from the building
17.4Maintenance of Common Areas
17.5Rules and Regulations
17.6Control of Common Areas
17.7Kiosks
Part 18MISCELLANEOUS
18.1Warranties
18.2Waiver
18.3Notices
18.4Non-Merger
18.5Moratorium
18.6Consents
18.7Covenants and assignees or successors in title
18.8Transfer to be complete
18.9Costs
18.10‘For Lease’ Notices
18.11Demolition
18.12
Part 19GUARANTORS
19.1Guarantee and Indemnity
19.2Liability of Guarantor
19.3Continuing Guarantee and Indemnity
Part 20BANK GUARANTEE
20.1Deposit
20.2Increase in Deposit
20.3Appropriation of Deposit
20.4Assignment of Deposit
Part 21EXECUTION AND REGISTRATION
21.1Execution
Part 22MORTGAGEE CONSENT
22.1Mortgagee’s Consent
Part 23TRUSTS
23.1Lessee’s Trust
23.2Capacity of Trustee
Part 1DEFINITIONS AND INTERPRETATION
1.1Definitions
(a)Accessories includes all bathrooms, toilets, grease traps, wash basins, gas fittings, electrical fittings, and other services contained in or about the Premises or other parts of the Building as the context requires.
(b)Air Conditioning Equipment includes all compressors, condensers, chiller sets, pumps, pipework, switchboards, wiring, thermostats, controls, cooling towers, air production, reticulation of chilled water and conditioned air in the Building.
(c)Authorisation means:
(i)any consent, authorisation, registration, agreement, relevant certificate, permission, licence, approval, authority or exemption from, by or with an Authority; or
(ii)any entitlement arising from the incapacity of a relevant Authority to prohibit or restrict anything in whole or in part because of the expiry of time within which it could legally intervene to do so.
(d)Authority includes any public, governmental, semi-governmental, city, municipal, health, licensing or any other authority having jurisdiction or authority in respect of the Premises or the use of the Premises or the Permitted Use.
(e)Building means the building or buildings erected upon the Land, of which the Premises form part and all substitutions, alterations or modifications to those buildings and includes the Land upon which such buildings are erected and all lands and buildings adjacent to or in the vicinity of the buildings to be used in conjunction with the whole or part of the Building.
(f)Claim includes all actions, claims, demands, notices, losses, damages, compensation, costs and expenses.
(g)Commencing Date means the date described on the front page of this Lease for the commencement of the Term.
(h)Common Areas means all those parts of the Building, if any, not demised or let to any lessee or occupant and intended for use by the lessees or occupants of the Building and in particular (but without limiting the generality of the foregoing) includes the common parking areas from time to time provided by the Lessor for the Building and the driveways and walkways giving access to and from the Building and the malls, corridors, passageways, vestibules, stairways, elevators, toilets and washrooms in the Building.
(i)CPI Review Date means the dates nominated inItem3(b)in theReference Schedule.
(j)Environmental Law means a law, ordinance, regulation, Local Government Plan or similar which relates to an aspect of the environment or health.
(k)Fire Equipment includes all taps, valves, hydrants, alarms, fire sprinkler systems or other fire detection and prevention equipment in the Building.
(l)Fit outmeans the works carried out in the Premises and things installed in or affixed to the Premises by the Lessee or by the Lessor on behalf of the Lessee whether or not owned by the Lessee or the Lessor or any other person pursuant to any agreement made between the Lessor and the Lessee including any alterations made to the Premises in accordance with the terms of this Lease.
(m)Floor Area means the aggregate area calculated to the nearest square metre of all floors including mezzanine floors or other structures measured in accordance with the relevant guidelines of the Property Council of Australia Limited issued from time to time. The certificate of the Lessor's architects or surveyor must, in the absence of manifest error, be conclusive evidence of the Floor Area of the Premises or any other part of the Building to which such certificate must relate.
(n)Floor plans means the plans provided by the Lessor, receipt of which is hereby acknowledged by the Lessee, of the layout of the lighting, Air Conditioning Equipment and Fire Equipment of the Premises on the earlier of the Commencing Day and the commencing of any Fit out, which will be used by the Lessor as a reference for the Lessee’s make good obligations under Part 15.
(o)Land means the land described in the Certificate of Title referred to on the front page of this Lease.
(p)Lessee means and includes the Lessee, its successors and permitted assigns or, being a person, his executors, administrators, successors and permitted assigns and where not repugnant to the context the sublessees, invitees, contractors, servants, employees and agents of the Lessee. Where the Lease to which this Annexure applies is a Sub-lease, then ‘Lessee’must mean ‘Sublessee’ in its full context according to this clause.
(q)Lessor means and includes the Lessor, its successors and assigns or, being a person, his executors, administrators, successors and permitted assigns, and where not repugnant to the context the invitees, contractors, servants, employees and agents of the Lessor. Where the Lease to which this Annexure applies is a Sub-lease, then ‘Lessor’must mean ‘Sub lessor’ in its full context according to this clause.
(r)Market Review Date means the dates nominated in of the Reference Schedule.
(s)NABERS Ratingmeans the relevant rating under The National Australian Built Environment Rating System as determined by the NSW Department of Environment, Climate Change and Water or its substitute.
(t)Outgoingsfor any year during the Term means the total aggregate amount of all costs, charges and expenses charged on the Land or payable by the Lessor which an owner would have been liable to pay in respect of the Building, Land or the Premises including but not limited to:
(i)rates, taxes, and charges payable to any Authority (with the exception of income tax and capital gains tax) including New South Wales land tax (calculated on the basis that the Land is the only land owned by the Lessor and not subject to a special trust and that the Lessor is not a non-concessional company) and any other tax assessed or charged to the Lessor by virtue of its ownership or right to occupy the Land or whether by State or Federal Legislation or any competent Authority;
(ii)all rates and charges payable to any Authority in relation to any of the supply of water, and the removal of waste,sewerage and other garbage from the Land, the Building or the Premises;
(iii)all amounts payable in respect of insurance relating to the Premises, the Building and the Common Areas (including stamp duties), for plate glass, public liability, worker’s compensation for all employees engaged in the cleaning, maintaining, lighting and repairing of the Common Areas, loss of rents, Lessor’s fixtures and fittings, damage or destruction of the Building and Accessories for their full reinstatement value and any other insurances effected by the Lessor in relation to any risk relating to the Lessor’s ownership or interest in the Premises;
(iv)all charges for gas, electricity, telephone, internet and data, water (including for excess water) and public utilities servicing the Common Areas of the Building;
(v)all costs of repairs, maintenance and painting of the Premises and the Building (excluding any work which amounts to a capital improvement or is of a structural nature other than that which arises from the negligence, acts or omissions of the Lessee) and the contributions to a sinking fund or other fund, if any, established to meet the same;
(vi)all costs of the detection, prevention and eradication of pests, insects and vermin from all Common Areas;
(vii)the cost of cleaning and servicing the car parks, Common Areas, signs and the interior and exterior of the Building (excluding the interior of the Premises and the interior of other parts of the Building leased or intended to be leased to other occupants) including the cost of garbage removal and/or compacting service which is charged on account of the Building or the cost of operating any garbage removal service for the Building;
(viii)all costs of management of the Building whether such management is performed at the Building or elsewhere and whether performed by the Lessor or by Managing Agents or others;
(ix)all costs and expenses of gardening, landscaping, and providing and maintaining decorative features in Common Areas, the Land and car parks;
(x)all costs and expenses of caretaking and security;
(xi)all costs and expenses associated with running, repairing, maintaining and servicing lifts, escalators, Fire Equipment, Air Conditioning Equipment and Accessories, including the supply of towels and other toilet requisites within the Building including the cost of personnel to operate such services; and
(xii)strata levies
PROVIDED THAT payments to be made under this clause must be adjusted for any assessment year or period which is broken by the Commencing Date or Terminating Date of this Lease or as held over but otherwise must be payable for the whole period of the assessment and the Lessor must refund to the Lessee the proper proportion of the payments made should this Lease during the period of the assessment expire or be determined not through the default or breach of the Lessee.
(u)Percentage Increase Review Date means the dates nominated in Item3(c)of the Reference Schedule.
(v)Permitted Use means the use outlined in Item4of the Reference Schedule.
(w)Premises means the premises described on the front page of this Lease and in together with any modifications, extensions and alterations thereto from time to time and including the Lessor’s fixtures and fittings in the Premises.
(x)Rent means the rent specified in Item1 of the Reference Schedule as reviewed on the Review Dates in accordance with clause2.2and/or Part 11.
(y)Review Dates means the dates (if any) specified in Item3 of the Reference Schedule.
(z)Services means all services or systems provided to the Building and/or to the Land or available for use and includes the provision of any electronic medium, energy source, lighting, gas, fuel, power, water, sewerage, drainage, loading docks, plant rooms, storage areas, the Fire Equipment, the Air Conditioning Equipment, the lifts and escalators and the fittings, fixtures, appliances, plant and equipment utilised for any of these Services and any services or systems from time to time utilised for access to the Building.
(aa)Reference Schedule means the Reference Schedule at the front of this Lease.
(bb)Term means the term of this Lease and includes any holding over period with the consent of the Lessor.
(cc)Terminating Date means the date specified on the front page of this Lease as the date upon which the Term of the Lease terminates.
1.2Interpretation
(a)Severability
If any term, covenant or condition of the Lease or the application to any person or circumstance must be or become invalid or unenforceable, the remaining terms, covenants and conditions must not be affected thereby and each term, covenant and condition of the Lease must be valid and enforceable to the fullest extent permitted by law.
(b)Bodies and Associations
References to any Authority, association, society, club or body must in the event of any such entities ceasing to exist or being reconstituted, renamed or replaced or the powers or functions of any of them being transferred to any other entity refer respectively to the entity established or constituted in lieu or succeeding to the similar powers or functions.
(c)Implied Covenants
The covenants implied by law (statutory or otherwise) are not negatived but must be deemed to have been modified (where so permitted) to the extent of any inconsistency with the provisions of the Lease.
(d)Plurals and Genders
The singular includes the plural and vice versa and words importing one gender include every gender.
(e)Contra Proferentum
In the interpretation of this Lease, no rules of construction will apply to the disadvantage of one party on the basis that it drafted the Lease or anyclause.
(f)Headings
Headings have been inserted for guidance only and do not form any part of the context of this Lease.
(g)Statutes
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 ordinance passed in substitution for the statute or ordinance referred to or incorporating any of its provisions.
(h)Joint and Several Covenants
Any covenant or agreement on the part of two or more persons binds them jointly and severally.
(i)Persons
A reference to person includes references to firms, a body corporate, an association or an Authority and includes a reference to the person’s executors, administrators, successors and permitted assigns.
(j)Lessee’s Agents
If this Lease prohibits the Lessee from doing a thing then the Lessee must do everything necessary to ensure that the Lessee’s sublessees, invitees, contractors, servants, employees and agents do not do that thing and the Lessee may not allow or cause any person to do that thing. If this Lease requires the Lessee to do a thing then the Lessee must do everything necessary to ensure that the Lessee’s sublessees, invitees, contractors, servants, employees and agents also do that thing.
Part 2RENT AND OUTGOINGS
2.1Rent Payment
(a)The Lessee must during the Term pay to the Lessor without demand from the Lessor and without any deduction or set off the Rent in advance by regular and consecutive monthly payments each equal to one-twelfth (1/12) of the Rent on the first day of each month during the Term (except the first and last payments which if necessary will be proportionate) with the first payment being payable on the date specified in Item1 of the Reference Schedule.
(b)At the Lessor’s discretion the Rent may be reviewed at each Review Date to an amount calculated in accordance with clause2.2.
(c)The acceptance from time to time and at any time by the Lessor of the Rent at a figure applicable to any period prior to the relevant Review Date will not relieve the Lessee from the liability to pay on demand the balance due in terms of clause2.2.
(d)If a rent free period or rental incentive or payment of fit out expenses (Incentive) has been provided by the Lessor to the Lessee during this lease, and if this lease is terminated as a consequence of the Lessee’s default then the Incentive will no longer apply and Rent will become due and payable for the whole of the Incentive period at the Rent rate set out in Item1 of the Reference Schedule, and any fit out expenses become repayable to the Lessor.
2.2Rent Review
(a)Market Rent Review
(i)Ascertaining Market Rent
The Lessor at any time within a period commencing sixty (60) days prior to a Market Review Date and expiring not later than the Market Review Date immediately following the relevant Market Review Date will review the Rent to an amount which the Lessor considers would at the time of such review be the current market rent of the Premises as between a willing lessor and a willing lessee having regard to the Premises offered, the provision of parking facilities (if any), the terms other than rental and all matters then relevant to the determination of such rental but without in any way limiting the generality of the foregoing the Lessee's obligations (if any) to contribute to the Outgoings and subject to the following provisions of this clausethe amount so determined must be the Rent payable by the Lessee from the relevant Market Review DatePROVIDED THAT nothing in this clause must operate to reduce the Rent payable and PROVIDED FURTHER THAT in the event that a Market Review Date is the same date as a CPI Review Date or Percentage Increase Review Date then the Rent payable must be the greater of the rentals calculated under clause2.2(b), 2.2(c) and under this clause2.2(a).