MEMORANDUM OF COMMON PROVISIONS
Section 91A Transfer of Land Act 1958
Lodged by:
Name:
Customer Code:
This memorandum (containing ____ page/s) contains provisions which are intended for inclusion in instruments to be subsequently lodged for registration.
PROVISIONS
1.DEFINITIONS AND INTERPRETATIONS
1.1Definitions
In this document:
Common Areas means the area intended to be used in common by the Sub-Lessees and the Sub-Lessor and marked for illustrative purposes on the Plan and including, without limitation, any areas which, if not so marked, nonetheless have the character of common areas.
Constitution means the Constitution of the Sub-Lessor.
GST means GST within the meaning of the GST Act.
GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Head Lease means the Crown lease of the Site, of which the sub-leased Premises forms part.
Improvements means buildings, structures, works and Sub-Lessor’s services or utilities on the Site and includes any fixtures, fittings, plant, machinery, furnishings, equipment and chattels affixed to or installed in, to or on the Site.
Laws means and includes the requirement of any statute, rule, regulation, proclamation, ordinance or local law, present or future, and whether state, federal or otherwise.
Lessor means the Landlord under the Head Lease.
Manager means the person or corporation appointed by the Sub-Lessor as manager of the Improvements and Common Areas or the manager’s delegate.
Premises means the sub-leased Landand all improvements thereonand a reference to Premises in this Sub-Lease means and includes the Member’s Parcel described and referred to in the Constitution.
Rules means the rules made in accordance with the Constitution from time to time.
Site means the land leased to the Sub-Lessor under the Head Lease.
1.2Interpretation and Constitution
Unless the subject or context otherwise requires, a word in this Sub-Lease has the same meaning as in the Constitution, and this Sub-Lease is to be construed in accordance with the Constitution. Defined terms in the Constitution have the same meaning in this Sub-Lease.
1.3Priority of Documents
If there is inconsistency between the provisions of any one or more of the following documents, then except in the case of manifest error and to the extent of any inconsistency, the documents are to be given priority in interpretation as follows:
(a)the Head Lease (save for the Rental and the Term);
(b)the Constitution;
(c)the Sub-Lease; and
(d)the Rules.
2.SUB-LEASE
2.1The Sub-Lessee must comply with:
(a)the HeadLease;
(b)the provisions of the Constitution;
(c)the Sub-Lease; and
(d)the Rules.
2.2The Sub-Lessee acknowledges and agrees that this Sub-Lease is made on the same terms and conditions and subject to the same reservations and covenants as are contained in the HeadLease and if there is any conflict between this Sub-Lease and a provision of the HeadLease, the HeadLease will prevail to the extent of any inconsistency (save for the Rental and Term).
2.3The Sub-Lessee must obtain the written consent or approval of the Lessor in all cases where under this Sub-Lease the consent or approval of the Sub-Lessor is required.
3.PAYMENTS
3.1Rental
The Sub-Lessee must pay the Rental to the Sub-Lessor annually in advance without demand and free from any deduction.
3.2Outgoings
The Sub-Lessee must pay to the Sub-Lessor, or where applicable, directly to the relevant authority or service provider:
(a)Outgoings and Operating Expenses in an amount equal to the Sub-Lessee’s proportion as determined by the Sub-Lessor under the Constitution by the due date and free from any deduction;
(b)all rates, taxes, levies, charges and contributions (Commonwealth, State or Local) which are assessed or charged on the Sub-Lessee’s Premises during the Term;
(c)unless prohibited by Law, if a tax, levy, charge or contribution is introduced or assessed on the Premises, the Sub-Lessee must pay an agreed proportion if it relates to the Premises and other sub-leased areas or the whole of it if it is charged only in respect of the Premises;
(d)the cost of all services supplied to the Premises such as water, sewerage, gas, electricity, garbage disposal, snow clearing, drainage, telecommunication or transport services (including charges for installation, connection, maintenance and engineering work); and
(e)any other amount payable by the Sub-Lessee from time to time under the Constitution, Sub-Lease and the Rules.
3.3Interest
(a)The Sub-Lessee must pay interest on any amount of money overdue to the Sub-Lessor. Interest is to be calculated:
(i)on daily balances due but unpaid;
(ii)from the due date until payment in full is received; and
(iii)at the rate two percent greater than the default rate under the HeadLease.
(b)Unpaid interest will be capitalised on the last day of each month.
4.USE OF PREMISES
4.1Permitted Use
The Sub-Lessee must only use the Premises for the permitted use.
4.2Compliance
The Sub-Lessee must comply with all Laws which relate to:
(a)the Premises; and
(b)the Sub-Lessee’s use and occupation of the Premises.
4.3Management
The Sub-Lessee must comply with the Rules and the reasonable requirements of the Sub-Lessor or its Manager in relation to the proper management of the Improvements and Common Areas.
4.4Services and Utilities
The Sub-Lessee must use the Services and utilities in the Premises only for their intended purpose.
4.5Use of Sub-Lessee’s Premises
The Sub-Lessee must not do anything in the Premises or in the Common Areas which is:
(a)against any Laws;
(b)hazardous; or
(c)likely to cause nuisance, injury or unreasonable disturbance to the Sub-Lessor or a third party.
4.6Use of outside of the Premises
(a)The Sub-Lessee must not:
(i)hang, display or put anything outside of the Premises; or
(ii)use audio or visual equipment which can be heard or seen from outside the Premises;
unless the Sub-Lessor first consents.
(b)The Sub-Lessor may withdraw a consent if it reasonably determines it is in the best interests of the Common Areas, the Improvements or other sub-lessee’s use and enjoyment of their Premises and Common Areas to do so.
4.7Cleaning
The Sub-Lessee must:
(a)keep the Premises clean (including the external areas and appearance of the Premises); and
(b)remove all refuse from the Premises and until removal, store all refuse in appropriate containers.
5.REPAIRS AND ALTERATIONS
5.1Good repair
The Sub-Lessee must, at its expense, keep the Premises and the Sub-Lessor’s fixtures and any services within the Premises in good repair and working order.
5.2Specific repairs and maintenance
The Sub-Lessee must:
(a)whenever reasonably required by the Sub-Lessor restore the finishes of the interior of the Premises to a good condition to the reasonable satisfaction of the Sub-Lessor;
(b)repair and replace all:
(i)broken glass;
(ii)plant, fixtures and fittings of the Sub-Lessor and the Sub-Lessee requiring repair or replacement;
(c)pay the Sub-Lessor on demand the cost of repairs for damage caused by the Sub-Lessee to the Common Areas or to adjoining sub-lessee’s premises; and
(d)pay the Sub-Lessor from time to time the Sub-Lessee’s proportion of the cost of maintaining, repairing, rebuilding and cleaning the exterior of the buildings, structures, Improvements and the Common Areas.
5.3Alterations, equipment and partitions
The Sub-Lessee must not:
(a)make structural alterations or additions to; or
(b)install any electrical wiring or service equipment in;
the Premises unless the Sub-Lessee obtains the Sub-Lessor’s written consent and complies with the reasonable requirements of the Sub-Lessor and all Laws.
5.4Sub-Lessor’s inspection
The Sub-Lessor may enter the Premises:
(a)at reasonable times after giving the Sub-Lessee reasonable notice; or
(b)if there is an emergency, without notice;
to view its state of repair.
5.5Notice of repair
(a)The Sub-Lessee must promptly comply with any notice given by the Sub-Lessor to repair a defect which is the Sub-Lessee’s responsibility.
(b)If the Sub-Lessee does not comply with the notice within a reasonable time, the Sub-Lessor may enter the Premises and carry out the necessary work at the Sub-Lessee’s expense:
(i)at reasonable times after giving the Sub-Lessee reasonable notice; or
(ii)if there is an emergency, at any time and without notice.
5.6Sub-Lessor’s repair
(a)The Sub-Lessor may enter the Premises to carry out repairs, renovations, maintenance or alterations to the Premises or the building which are reasonably necessary:
(i)at reasonable times after giving the Sub-Lessee reasonable notice; or
(ii)if there is an emergency, without notice.
(b)The Sub-Lessor must cause as little inconvenience to the Sub-Lessee as is practicable in the exercise of its rights.
5.7Repair at the end of the Sub-Lease
The Sub-Lessee must, at the end of the Sub-Lease:
(a)give the Premises back to the Sub-Lessor:
(i)in good repair and working order;
(ii)clean and free from rubbish;
(b)remove all signs and repair any damage caused by their installation or removal to the reasonable satisfaction of the Sub-Lessor; and
(c)(if required by the Sub-Lessor) reinstate all alterations made to the Premises.
5.8Sub-Lessee’s fixtures at the end of the Sub-Lease
(a)The Sub-Lessee must remove the Sub-Lessee’s fixtures and property from the Premises when the Sub-Lease ends or upon earlier termination of the Sub-Lease.
(b)The Sub-Lessee must repair any damage caused to the Premises or the building by that removal to the reasonable satisfaction of the Sub-Lessor.
(c)Sub-Lessee’s fixtures and property which are not removed by the end of the Sub-Lease are deemed abandoned.
6.SUB-LESSEE’S INSURANCES
6.1Sub-Lessee’s insurance
For the duration of the Sub-Lease, the Sub-Lessee must with a solvent and reputable insurer:
(a)keep a public liability policy current in relation to the Premises for a sum not less than ten million dollars ($10,000,000) for a single claim, or for such other sum that the Sub-Lessor may reasonably require;
(b)insure all plate and other glass in the Premises against breakages;
(c)take out other insurances reasonably required by the Sub-Lessor from time to time;
and produce evidence of such policies when requested by the Sub-Lessor (acting reasonably).
6.2Prejudice of insurance
The Sub-Lessee must not do nor fail to do anything which may:
(a)increase the insurance premium; or
(b)allow the insurer to refuse a claim;
under any insurance policy taken out by the Sub-Lessor in relation to the building.
6.3Flammable substances
The Sub-Lessee must not store or use flammable or explosive liquids or substances on the Premises unless they are:
(a)needed in the normal course of the Sub-Lessee’s permitted use of the Premises; and
(b)stored in appropriate containers which comply with all Laws.
6.4Fire regulations
As reasonably required by the Sub-Lessor and by all Laws, the Sub-Lessee must:
(a)comply with insurance, sprinkler and fire alarm regulations;
(b)carry out and take part in fire drills and emergency evacuations;
(c)appoint fire controllers and fire wardens; and
(d)install and maintain first response fire equipment in the Premises.
6.5Accident Compensation Act
Where the Sub-Lessee employs any person in connection with the operation and management of the Premises or engages any contractor, the Sub-Lessee must register with the Victorian WorkCover Authority or otherwise ensure that the contractor complies with the Accident Compensation Act 1985 (Vic).
7.RELEASE AND INDEMNITY
7.1Use of Premises at own risk
The Sub-Lessee occupies and uses the Premises at its own risk and releases the Sub-Lessor from all claims and demands of any kind arising from any accident, damage or injury occurring in the Premises except to the extent that the Sub-Lessor, its servants or contractors cause the damage or injury.
7.2Exemption of Sub-Lessor from liability
If the Sub-Lessor complies with its obligations under the Sub-Lease, the Sub-Lessor is not liable to the Sub-Lessee for damage to the Sub-Lessee’s property or for any consequential loss suffered by the Sub-Lessee.
7.3Indemnity
The Sub-Lessee indemnifies the Sub-Lessor against any claims, actions or demands that may be brought against the Sub-Lessor arising out of the Sub-Lessee’s occupation of the Premises except to the extent that the Sub-Lessor, its servants or contractors cause the claims, actions or demands.
8.SUB-LESSOR’S OBLIGATIONS
8.1The Sub-Lessor covenants with the Sub-Lessee to:
Quiet Enjoyment
(a)provide the Sub-Lessee with:
(i)exclusive occupation and quiet enjoyment of the Premises; and
(ii)together with the Sub-Lessor and other Sub-Lessees the use of Common Areas;
Pay Outgoings
(b)pay all rent, service charges, rates, taxes, charges and assessments which may be levied or charged on the Site in its entirety or the Common Area or upon the Sub-Lessor in its capacity as lessee under the HeadLease;
Provide Services
(c)provide the Sub-Lessee with free and uninterrupted flow of gas, water, electricity, sewerage, drainage and stormwater through or along any pipes or wires which now or at any time may pass through or under the Premises;
Maintain Common Areas
(d)maintain in good repair the retaining walls, driveways, car parks, paths, stairways on the Common Areas and all pipes, electrical wiring and plumbing services on the Site;
(e)keep the Common Areas in a neat and tidy condition and administer and determine the heating arrangements for the Common Areas including the driveways and car parking areas, gardening of the Common Areas, cleaning and rubbish removal on and from the Common Areas and the administration and management of the Site and Improvements generally;
Comply with HeadLease
(f)comply at all times with its obligations under the HeadLease and not to surrender the HeadLease;
Comply with all Laws
(g)comply at all times with the Laws of the State of Victoria and the Commonwealth; and
Remedy breach
(h)provide the Sub-Lessee with a copy of any notice served upon it by the Lessorrelating to any breach of the HeadLease and immediately remedy any such breach except where the breach arises from a breach of this Sub-Lease by the Sub-Lessee.
9.SUB-LESSOR’S INSURANCES
For the duration of the Sub-Lease, the Sub-Lessor must with a solvent and suitable insurer:
(a)keep a public liability policy current in relation to the Common Areas and all unoccupied Parcels in the name of the Sub-Lessor for a sum not less than ten million dollars ($10,000,000.00) for a single claim; and
(b)keep a policy of reinstatement insurance in an amount sufficient to cover the full replacement value of the buildings, Improvements, Common Areas and any structures, buildings or Improvements on the Site or comprising the Common Areas and to satisfy the insurance requirements of the HeadLease.
10.ASSIGNMENT AND OTHER DEALINGS
10.1Restriction on transfer, etc
(a)The Sub-Lessee must nottransfer, mortgage, charge, sub-sub-let or otherwise deal with the Sub-Lease or its interest in the Sub-Lease without first obtaining the Sub-Lessor’s written consent.
(b)The Sub-Lessor can withhold consent only if reasonable. Without limitation, withholding consent will be considered reasonable if:
(i)a transferee is unable to demonstrate it is a respectable, responsible, and solvent person capable of performing the Sub-Lessee’s obligations under the Sub-Lease; or
(ii)the Sub-Lessee is in breach of the Sub-Lease:
Aat the time it requires the Sub-Lessor’s consent; or
Bat the date of the proposed dealing.
(c)The Sub-Lessee must apply for consent in writing and provide the information reasonably necessary for the Sub-Lessor to consider the request.
(d)The Sub-Lessor must not unreasonably delay answering the Sub-Lessee’s request.
10.2Corporate Sub-Lessee
If the Sub-Lessee is a company (other than a corporation whose shares are listed on an official stock exchange), a change in the effective control of the Sub-Lessee is deemed to be a transfer of the Sub-Lease requiring consent under 10.1.
10.3Formalities
(a)The Sub-Lessor may attach reasonable conditions to the granting of any consent (including without limitation):
(i)requiring a transferee to execute a covenant with the Sub-Lessor to comply with the terms of the Sub-Lease and execute a suitable transfer document;
(ii)requiring personal guarantees from directors and shareholders of a transferee (if it is a company) for the performance of the transferee under the Sub-Lease.
(b)The Sub-Lessee must fully satisfy any conditions attaching to the Sub-Lessor’s consent and finalise any formalities before a dealing takes effect.