Dated: [DAY MONTH YEAR]
Retail Lease DN[u1]
(New South Wales)
[PARTY NAME]
ACN [#######]
Trading as [BUSINESS NAME]
“Lessor”
and
[PARTY NAME]
ACN [#######]
Trading as [BUSINESS NAME]
“Lessee”
Contents
REFERENCE SCHEDULE
1DEFINITIONS AND INTERPRETATION
1.1Definitions
1.2Interpretation
2BASE RENT
2.1Payment of Base Rent
2.2Instalments
2.3Base Rent Commencement
3BASE RENT REVIEWS
3.1CPI plus review
3.2Change to CPI index
3.3Fixed percentage Base Rent review
3.4Fixed review amount
3.5Base Rent pending determination
3.6Adjustment once Base Rent determined
4PERCENTAGE RENT
4.1Statements of Lessee's Sales
4.2Calculation of Percentage Rent
4.3Payment of Percentage Rent
4.4Books of account and records
4.5Audit differences
5OUTGOINGS
5.1Lessee's Contribution
5.2Estimate of Outgoings and Lessee's Contribution
5.3Payment of Lessee's Contribution
5.4Outgoings statement and audit report
5.5Changes in portion and percentage
5.6After hours expenses
5.7Costs, charges and expenses
5.8Direct charges and exclusive Services
5.9GST
6PROMOTION FUND
6.1Promotion Levy
6.2Instalments
6.3Promotion Levy increase
6.4Promotion Fund
6.5Estimate of Promotion Fund Expenditure
6.6Promotion Fund expenditure statement and audit report
6.7Special promotion costs
7PAYMENT OBLIGATIONS
8USE
8.1Permitted Use
8.2No warranty
8.3Operation of Lessee's Business
8.4Access
8.5Displays, fixtures and fittings, solicitation
8.6Signage
8.7Lessee's trading name
8.8Prohibited uses
9INSURANCE
9.1Lessee must insure
9.2Requirements for policies
9.3Evidence of insurance
9.4Insurances affected
10REPAIR AND LESSEE’S WORKS
10.1Repair
10.2Maintain and replace
10.3Lessee's works
10.4Structural work
10.5Plate glass and signs
10.6Health Safety and Environment
11CLEANING
12LESSEE’S RIGHTS AND ADDITIONAL OBLIGATIONS
12.1Quiet enjoyment and Common Areas
12.2Car parks
12.3Compensation
12.4Environmental Laws
12.5Environmental initiatives
12.6Fitout
12.7Additional obligations
12.8Cause
12.9Lessee's Employees
13LESSOR’S RIGHTS AND ADDITIONAL OBLIGATIONS
13.1Right to enter
13.2Emergencies
13.3Exercise of rights
13.4Services, works and restrictions
13.5Right to deal with Land
13.6Right to deal with Centre and Common Areas
13.7Alterations and additions to Centre
13.8External walls and roof
13.9Right to rectify
13.10Other rights
13.11Obligations
14TRANSFERRING, SUBLETTING, CHARGING
14.1No dealing
14.2Transfer
14.3Change in control.
14.4No subletting
14.5No charging of this lease
14.6Requirements reasonable
15DESTRUCTION OF OR DAMAGE TO CENTRE OR PREMISES
15.1Termination for destruction or damage
15.2Rent Abatement of Premises unusable
15.3Rent abatement if Premises useable
15.4Limitation on Lessee’s Rights
15.5No claim on termination
15.6No obligation to rebuild or repair
16DEFAULT
16.1Essential terms
16.2Termination
16.3Notice of termination Rent
17INDEMNITIES AND RELEASES
17.1Risk
17.2Indemnity
17.3Continuing indemnity
17.4Release
17.5Costs
18REPRESENTATIONS AND WARRANTIES
19HOLDING OVER
20LESSEE'S OBLIGATIONS AT END OF LEASE
21LESSOR’S RIGHT TO RELOCATE
21.1Relocation
21.2New lease
21.3Termination by Lessee
21.4Deemed acceptance
21.5Termination of lease
21.6Surrender and vacant possession
21.7New lease execution
21.8Relocation costs
21.9Determination if Relocation Costs disputed
21.10Determination if Quantity Surveyor’s decision disputed
21.11Lessor's liability
21.12Existing rights
22DEMOLITION
22.1Termination of lease for demolition etc
22.2Termination by Lessee
23ACKNOWLEDGEMENTS UNDER THE RETAIL LEASES ACT 1994
23.1Lessee's acknowledgement – Disclosure Statement
23.2Lessee's acknowledgement – Retail Tenancy Guide
23.3Lessee's acknowledgement – Section 16(3) Certificate
24GENERAL
24.1Notices
24.2Governing law
24.3Jurisdiction
24.4Amendments
24.5Waiver
24.6Consents
24.7Counterparts
24.8Prior breaches
24.9Severance
24.10Statutory provisions
25SECURITY
25.1Bank Guarantee
25.2Guarantee and indemnity
26PERSONAL PROPERY SECURITY
26.1Existing Security Interest
26.2Creating a Security Interest
27AMENDMENTS
27.1Amendments included in Schedule 1
27.2Inconsistency
SCHEDULE 1 – AMENDMENTS
SCHEDULE 2 – RULES
ACP Retail Lease (New South Wales)page 1
REFERENCE SCHEDULE
Item 1 / Premises / [ADDRESS]Item 2 / Centre / [CENTRE NAME]
Item 3 / Commencement Date / [DAY MONTH YEAR]
Item 4 / Termination Date / [DAY MONTH YEAR]
Item 5 / Term / [## YEARS]DN[u2]
Item 6 / Base Rent
(clause2) / $0.00 per annum
Item 7 / Base Rent Commencement Date / [DAY MONTH YEAR]
Item 8 / Base Rent Reviews and Dates
(clause3) / Review Date / Review Method
[DAY MONTH YEAR]
Item 9 / Percentage Rent
(clause 4) / 0%DN[u3]
Item 10 / Promotion Levy
(clause 6) / $0.00 per annum
Item 11 / Trading Hours
Core Trading Hours
(clause 13.10) / (unless prohibited by law)
Lessee's Trading Hours
(clause 8.3) / The Core Trading Hours from time to time
Item 12 / Permitted Use
(clause 8.1) / [PERMITTED USE]DN[u4]
Item 13 / Lessee’s Trading Name (clause 8.7) / [TRADING NAME]
Item 14 / Public risk insurance
(clause9.1) / $20,000,000.00DN[u5]
Item 15 / Refurbishment /Fitout dates / [DAY MONTH YEAR]DN[u6]
Item 16 / Bank Guarantee
(clauseError! Reference source not found.) / An amount equivalent to [##] months Base Rent, Lessee's Contribution and Promotion Levy plus GST.
At the Commencement Date the amount is $0.00
Item 17 / Guarantor
(clause 25.2) / [NAME]
Item 18 / Address for service of notices
(clause 24.1) / DN[u7]
Lessor / [NAME]
[ADDRESS]
[FAX]
Attention: [NAME]
Lessee / [NAME]
[ADDRESS]
[NAME]
[FAX]
Attention: [NAME]
Item 19 / Capacity and liability
(clause 27)
Trust
Constitution / [TRUST NAME]
[CONSTITUTION DOCUMENT]
1DEFINITIONS AND INTERPRETATION
1.1Definitions
In this leases:
“Act” meansthe Retail Leases Act 1994 (as amended).
“BankGuarantee” means an irrevocable, unconditional undertaking given by a bank (or, in the Lessor's absolute discretion, other financial institution satisfactory to the Lessor) to pay to the Lessor on demand and without notice to the Lessee the amount in Item 16, which complies with clause 25.1(b) and any replacement or addition to it under clause 25.1(e).
“BaseRent” means the yearly amount in Item 6 as changed under this lease.
“BasicShell” means Premises meeting the following specifications:
(a)clean level concrete floor with all floor coverings removed;
(b)all internal partitions removed;
(c)clean inter tenancy walls which have been repainted or otherwise finished;
(d)any ceiling removed (whether installed by the Lessor or the Lessee) unless the Lessor gives the Lessee a notice not to remove it;
(e)all electrical, lighting, plumbing, wiring, cabling and similar services to the Premises removed and capped off at their entry point into the Premises to facilitate connection for a new fitout.DN[u8]
“Building” means all improvements (other than the property of any lessee) on the Land.
“Centre” means the Land, the Building and any other areas which are promoted by the Lessor together with the Land and the Building as a shopping centre, mall, court or arcade, and includes the Common Areas and all conveniences, amenities and appurtenances provided for use within or for the benefit of the Centre. The Centre does not include 'unrelatedland' as defined in section 24B of the Act.DN[u9]
“CommencementDate” means the date shown as “CommencingDate” on the lease form and the date in Item3.DN[u10]
“CommonAreas” means those parts of the Centre which the Lessor provides for common use (from time to time), including the car parks.
“CoreTradingHours” means the hours in Item 11 as changed under clause13.10.
“CPI” means the consumer price index published by the Australian Statistician for All Groups for the capital city of the Relevant State or the index which replaces it under clause 3.2.
“CurrentCPI” means the CPI number for the quarter ending immediately before the relevant CPI Review Date.
“DisclosureStatement” means the Lessor’s disclosure statement given to the Lessee pursuant to the Act.DN[u11]
“EnvironmentalLaws” means all laws and regulations, consents, permits, environmental protection policies, and directions, standards and guidelines including determinations, of any authority, including federal, state or local government authorities, (and any other like bodies) regulating or otherwise relating to the environment, including but not limited to land use, planning, heritage, coastal protection, water catchments, pollution of air or waters, noise, soil or ground water contamination, chemicals, waste, waste management, use of hazardous or dangerous goods or substances, building regulations, public and occupational health and safety, or noxious trades, use of biodegradable/non bio-degradable products.
“FinancialYear” means the period beginning on 1 July in each year (or on another day the Lessor specifies in a notice to the Lessee) and ending 12 months later.
“FixedAmount” means a specified amount nominated as a Review Method.
“Fixture” means a fixture as defined in the PPS Act.DN[u12]
“FixedPercentage” means a specified percentage nominated as a Review Method.
“GST” and “GSTlaw” have the same meaning as they have in the GST Legislation except that “GSTlaw” also includes all applicable rulings.
“GSTLegislation” means the A New Tax System (Goods and Services Tax) Act 1999 and any related tax imposition act (whether imposing tax as a duty of customs excise or otherwise) and includes any legislation which is enacted to validate recapture or recoup the tax imposed by any of such acts.
“Guarantor” means each person (if any) named in Item 17 and other than in clause 25, any other person who provides a guarantee of the Lessee's obligations under this lease.
“Institute” means the Division of the Australian Property Institute Incorporated applicable for the Relevant State.
“Land” means the land described in the lease form and all other land the Lessor uses with that land in connection with the Centre, but does not include 'unrelated land' as defined in section 24B of the Act.
“Lessee” means the party shown as “Lessee” on the lease form.
“Lessee'sBusiness” means the business carried on in or from the Premises.
“Lessee'sContribution” means for an Outgoings Year the amount LC calculated as follows:
LC = / LP x D x EY
where:
LP / = / the Lessee's Percentage (expressed as a decimal).
D / = / the number of days of the Term in that Outgoings Year.
E / = / the Outgoings for that Outgoings Year.
Y / = / the number of days in that Outgoings Year.
“Lessee'sEmployees” means the Lessee's employees, officers, consultants, agents, contractors, invitees, licensees, and anyone in the Centre because of the Lessee's use and occupation of the Premises, or any of them.
“Lessee'sPercentage” means the percentage which the Lettable Area of the Premises bears to the Lettable Area of the Centre, expressed as a percentage as changed under clause 5.5.DN[u13]
“Lessee'sProperty” means all plant, equipment, fixtures, fittings, furniture, furnishings, signs, lettering and other property in, on or fixed to the Premises which is not Lessor's Property or Services.
“Lessee'sSales” includes the total of all money and the monetary value of things other than money, received or receivable from the sale, hire, lease, licence or provision of any goods, services or rights of occupation or use or the conduct of any business (“Sales”) from the Premises or relating to the Premises. Without limiting this definition, the term includes all money and the value in money of Sales:DN[u14]
(a)from the Premises, wherever originating;
(b)from somewhere other than the Premises but originating from the Premises;
(c)neither from the Premises nor originating from them but which would normally be attributed to the Lessee's Business operated in the Premises;
(d)from any internet, mail, facsimile, telephone or similar orders connected directly or indirectly to the Premises or to the Lessee's Business;DN[u15]
(e)effected by persons operating from or reporting to the Premises;
(f)from mechanical or vending devices in or about the Premises;
(g)from service finance or interest charges made by the Lessee to its customers in relation to transactions and accounts which are or should be included in Lessee's Sales;
(h)effected by licensees or concessionaires in from or about the Premises; or
(i)effected in a way likely to deprive the Lessor of any Percentage Rent,
but “Lessee'sSales” does not include:
(a)the amount of losses incurred in the resale or disposal of merchandise reasonably and properly purchased from customers as trade ins in the usual course of business;
(b)the amount of deposits and instalments received on account of lay bys, hire purchase or credit sales, and which are refunded to customers;
(c)the amount of a refund on a transaction where the proceeds of the transaction have been included as part of Lessee's Sales;
(d)the amount of any service, finance or interest charges payable to any financier in connection with provision of credit to customers (other than commissions on credit or store cards);
(e)the price of merchandise exchanged between the Lessee's shops if the exchange is made solely for the convenient operation of the Lessee's Business and not for the purpose of concluding a sale made at or from the Premises;
(f)the price of merchandise returns to shippers, wholesalers or manufacturers;
(g)the proceeds of sale of the Lessee's fixtures and fittings after their use in the conduct of the Lessee's Business at or from the Premises;
(h)the amount of discounts allowed to customers in the normal course of business;
(i)the amount of uncollected credit accounts that are written off;
(j)the amount paid or payable by the Lessee as GST (including notional GST of the kind for which payments may be made under section 5 of the Intergovernmental Agreement Implementation (GST) Act 2000 by a State entity under that legislation);
(k)the amount of delivery charges; or
(l)the amount received from the sale of lottery tickets and similar tickets (other than commission on those sales).
“Lessor” means the party shown as “Lessor” on the lease form. Subject to clause 26, where any right is held by the Custodian (as defined in clause 26) that right is also held by or owed to the Responsible Entity (as defined in clause 26) and where any obligation is to be performed by the Custodian that obligation may be performed by the Responsible Entity.
Lessor'sProperty” means all plant, equipment, fixtures, fittings, furniture, furnishings and other property the Lessor supplies to the Premises.
“LettableArea” means (subject to the Act) the gross lettable area retail calculated by the Lessor using the Property Council of Australia Limited's method of measurement last published at the Commencement Date, or such other Property Council of Australia Limited method of measurement as the Lessor notifies the Lessee but does not include:
(a)car parking spaces; or
(b)storage areas not attached to premises within Centre.
“Outgoings” means the total of all amounts paid or payable by the Lessor for an Outgoings Year in connection with the ownership, management and administration, operation and maintenance of the Centre including:
(a)rates and other charges imposed by any authority and levies and other charges under strata or community schemes or similar legislation;
(b)taxes (except income and capital gains tax), levies, duties, charges, imposts, withholdings and deductions imposed by any authority;
(c)land tax (on the basis that the Land is the only land the Lessor owns, the Land was not subject to a special trust within the meaning of the Land Tax Management Act 1956, and the Lessor is not a company classified under section 29 of the Land Tax Management Act 1956);
(d)insurance premiums (including loss of rent);
(e)cleaning the Centre (except for parts which are let), removing refuse, controlling vermin and supplying items to washrooms and lavatories;
(f)providing, servicing and maintaining indoor and outdoor plants, gardening and landscaping;
(g)repair, service, maintenance and redecoration (except structural works) which no occupier other than the Lessor is obliged to do;
(h)charges for Services not separately metered to or paid for by an occupier other than the Lessor;
(i)providing, servicing, maintaining, repairing and replacing Services and complying with the requirements of authorities and all laws in connection with Services;
(j)management, administration and customer services;
(k)caretaking, child minding, security services and controlling traffic;
(l)providing, maintaining, repairing and replacing information systems, signs and directory boards;
(m)audit, accounting and other professional costs;
(n)rents, fees and expenses incurred in connection with the Land or the Building (including rents, fees and expenses incurred in obtaining or maintaining benefits to the Land or Building or Centre);
(o)wages and associated costs (including payroll taxes) payable in respect of employees of the Lessor employed to provide or administer any of the services or costs outlined above or in connection with the ownership, management and administration, operation and maintenance of the Centre; and
(p)other items included in the Lessor's Disclosure Statement as outgoings,
but does not include:
(a)any amount in respect of the capital costs of the Centre;
(b)any amount in respect of depreciation; and
(c)interest or other charges incurred by the Lessor in respect of amounts borrowed by the Lessor.
Where the Centre is part only of the land or property included in or benefiting from any assessment or expense, the part of the assessment or expense which forms part of the Outgoings in relation to the Centre is that part determined by the Lessor, acting reasonably.
“OutgoingsYear” means the period beginning on 1 July in each year (or on another day the Lessor specifies in a notice to the Lessee) and ending 12 months later.
“PaymentDate” means the Commencement Date and the first day of each month during the Term and any holding over period.
“PercentageRentPeriod” means each of:
(a)the period from and including the Commencement Date to and including the first 30 June in the Term;
(b)each 12 month period ending on 30 June during the Term;
(c)the period from and including the last 1 July in the Term to and including the Termination Date, or earlier termination; and
(d)the period of any holding over in accordance with clause 19.
“PercentageRent” means the amount calculated in accordance with clause 4 for the relevant Percentage Rent Period.
“PermittedUse” means the use in Item 12.
“PersonalProperty” means personal property as defined under the PPS Act.
“PPSAct” means the Personal Property Securities Act 2009 (Cth).
“Premises” means the premises described in the lease form and in Item 1 and includes the Lessor's Property.
“PreviousCPI” means for a Review Date, the CPI number for the quarter ending immediately before the last Review Date (or if there has not been one, the Commencement Date).
“PromotionLevy” means the percentage of the Base Rent or the specified amount (subject to review under clause 6.3) in Item 10 each year.
“Regulations” means any regulations made in accordance with section 85 of the Act.
“RelevantState” means the State in which the Land is situated.
“Representative” means a representative member of a GST group to which the relevant supplier belongs.
“RetailTenancyGuide” means the retail tenancy guide (if any) prescribed by or identified in the Regulations.
“ReviewDate” means each date in Item 8.
“ReviewMethod” means the relevant method of Rent Review in Item 8 for any given Review Date.
“Rules” means the rules for managing the Centre set out in Schedule 2 as changed under this lease.
“SecurityInterest” means a security interest as defined under the PPS Act.
“Services” means the services (including without limitation gas, electricity, water, sewerage, drainage, lifts, escalators, communications, fire control and air conditioning and all plant and equipment in connection with them as applicable) to or of the Building, the Centre or any premises in it or the Land supplied by any authority, the Lessor or any person the Lessor authorises.
“Term” means the period shown as the “Term” on the lease form and the period in Item 5 beginning on the Commencement Date and ending on the Termination Date and any holding over period.DN[u16]