giovanni valente enviroclean (victoria) pty ltd … · strata plan and the payment of insurance...
TRANSCRIPT
l
GIOVANNI VALENTE HELAN VALENTE
("Lessor")
AND
ENVIROCLEAN (VICTORIA) PTY LTD (ACN 144 794 347)
("Lessee")
AND
MICHAEL GRAEME GENDERS
and
JAMES ARTHUR RICHARDS
("Guarantors")
LEASE
UNIT 6, 125 - 127 BARRINGTON STREET, BIBRA LAKE
Norfolk Chambers 6 Norfolk Street Fremantle WA 6160
Reference: NEG:SCD:360901
LAWYERS & Notaries Public
PO Box388 Fremantle WA 6959 T: +61 8 9335 9877 F: +61 8 9336 1291
www.frichot.com.au
CONTENTS
LESSEE'S COVENANTS ....................................................................................................................... 1
1. PAY RENT ............................................................................................................................. 1
2. PAY UTILITIES ...................................................................................................................... 1
3. PAY RATES AND TAXES ..................................................................................................... 2
4. PAY STRATA COMPANY LEVIES AND OTHER OUTGOINGS ......................................... 2
5. MAINTAIN AND REPAIR LEASED PREMISES ................................................................... 4
6. PAINTING .............................................................................................................................. 5
7. INSURANCE ...................................... ~ ................................................................................... 6
8. PAY COSTS ........................................................................................................................... 7
9. PAY INTEREST ..................................................................................................................... 7
10. ENTRY ON LEASED PREMISES ......................................................................................... 8
11. NOT TO ALTER OR DAMAGE LEASED PREMISES .......................................................... 8
12. DELIVER NOTICES ............................................................................................................... 8
13. INDEMNITY ............................................................................................................................ 8
14. COMPLY WITH ACTS ........................................................................................................... 9
15. YIELD UP POSSESSION ...................................................................................................... 9
16. NOT TO INCREASE RISKS OF DAMAGE ......................................................................... 10
17. NOTTO OVERLOAD LEASED PREMISES ....................................................................... 10
18. NOTTO CARRY ON OFFENSIVE ACTIVITIES ................................................................. 10
19. CARRY ON BUSINESS ....................................................................................................... 11
20. SIGNS .................................................................................................................................. 11
21. NOT TO ASSIGN LEASED PREMISES ............................................................................. 11
22. CAVEATS ............................................................................................................................ 12
LESSOR'S COVENANT ...................................................................................................................... 12
23. COVENANT BY LESSOR .................................................................................................... 12
MUTUAL AGREEMENTS .................................................................................................................... 12
24. FIRST OPTION TERM ......................................................................................................... 12
25. SECOND OPTION TERM .................................................................................................... 13
26. REVIEW OF RENT .............................................................................................................. 14
27. EXCLUSIONS OF PROPERTY LAW ACT ......................................................................... 15
28. DEFAULT BY LESSEE ....................................................................................................... 15
29. ABATEMENT OF RENT ...................................................................................................... 17
30. DESTRUCTION OF THE LEASED PREMISES .................................................................. 17
31. HOLDING OVER ................................................................................................................. 17
32. NO WARRANTY BY LESSOR ............................................................................................ 17
33. LESSOR NOT LIABLE FOR DAMAGE .............................................................................. 17
34. EXCLUSION OF PREVIOUS AGREEMENTS ......... : .......................................................... 17
35. EXERCISE OF REMEDIES ................................................................................................. 18
36. STATUTORY POWERS ...................................................................................................... 18
37. LESSOR MAY ACT BY AGENT ......................................................................................... 18
38. NOTICE, DEMAND OR CONSENT ..................................................................................... 18
39. MORATORIUM NOT TO APPLY ........................................................................................ 19
40. APPLICABLE LAW ............................................................................................................. 19
41. GUARANTEE AND INDEMNITY ......................................................................................... 19
42. SEVERABILITY ................................................................................................................... 20
43. EFFECT OF EXECUTION ................................................................................................... 20
44. SPECIAL TERMS ................................................................................................................ 21
45. DEFINITIONS AND MEANINGS ......................................................................................... 21
SCHEDULE .......................................................................................................................................... 25
THIS LEASE is made on the date specified in the Schedule.
PARTIES
The party or parties specified in the Schedule ("Lessor")
AND
The party or parties specified in the Schedule ("Lessee")
AND
The party or parties specified in the Schedule ("Guarantor'')
OPERATIVE PART
The Lessor LEASES to the Lessee the Leased Premises for the Term from the Commencement Date BUT RESERVING AND EXCEPTING to the Lessor the right to install maintain use repair and replace pipes ducts conduits and wires leading through the Leased Premises and to pass and run gas water heat oil electricity and other power and telephone lines or optic fibres and air-conditioning through such pipes ducts conduits and wires and to install maintain use repair alter and replace plant machinery and equipment on the Leased Premises and to enter upon the same for such purposes SUBJECT to the payment of the Rent to the Lessor and the observance and performance of the other covenants and agreements mentioned in this Lease and the covenants and powers mentioned in the Transfer of Land Act 1893 and the Strata Titles Act 1985 (so far as the same are not expressly or by necessary implication negatived or modified herein).
LESSEE'S COVENANTS
The Lessee COVENANTS AND AGREES with the Lessor as follows:
1. PAY RENT
To pay to the Lessor the Rent clear of all deductions in advance by the instalments and in the manner specified in the Schedule at the address of the Lessor or to such other address or person or to the Lessor's credit at a bank or other financial institution as the Lessor may by notice from time to time to the Lessee require. ·
2. PAY UTILITIES
To pay to the relevant local or public authority billing the same or to the Lessor as the case may be all telephone rental and calls and all charges for water, gas, electricity and all other services separately used or consumed by the Lessee or in relation to the Leased Premises.
Document No: 286854
2
3. PAY RATES AND TAXES
3.1 To pay to the relevant local or public authorities or bodies on or before the dates specified by them or to the Lessor or as the Lessor shall direct on demand from time to time the amount of all local authority rates and charges including (without limiting the generality of the foregoing) charges for rubbish removal, Water Corporation rates and charges, Land and Metropolitan Region Improvement Tax (on the basis that the Leased Premises is the only property owned by the Lessor) and any other rate, tax, assessment, imposition or charge levied or. imposed in respect of the Leased Premises or the ownership or occupation thereof for or during· each year or other part of the Term PROVIDED HOWEVER that if the Leased Premises constitutes only a part of a strata lot and the strata lot is separately rated, taxed, assessed or charged as above the Lessee shall pay to the Lessor or as the Lessor shall direct on demand from time to time the same proportion of such rates and taxes as the proportion the area of the Leased Premises bears to the area of the strata lot as certified by the Lessor from time to time PROVIDED ALWAYS that an apportionment shall be made of the amount of rates and taxes payable for any part of the Term which does not comprise a complete rating year.
3.2 That the amount of Rent specified in this Lease is exclusive of GST and the Lessee shall pay at the same time as and with each and every payment by the Lessee of money on account of the Rent and utility charges, rates and taxes outgoings and all other amounts payable by the Lessee to the Lessor pursuant to this Lease additional amounts being the amount of any GST applying to such payment when the same was or is to be or is received by or on behalf of the Lessor who is subject to the obligation to pay GST thereon provided that in the case of:
3.2.1 Rent the Lessor shall first have issued to the Lessee a tax invoice setting out the amount to be so payable by the Lessee in respect of each instalment thereof; and
3.2.2 in the case of any other payment of money due by the Lessee to the Lessor on account of utility charges, rates and taxes outgoings and all other amounts payable by the Lessee whatsoever and howsoever pursuant to this Lease the Lessor shall issue to the Lessee a tax invoice within seven (7) days of the payment being made and from the amount of the tax payable to the Lessor in this case shall be deducted the extent of any input tax credit to which the Lessor is entitled in relation to the utility charges, rates and taxes outgoings and the other amounts payable aforesaid.
4. PAY STRATA COMPANY LEVIES AND OTHER OUTGOINGS
4.1 To pay to the Lessor or as the Lessor shall direct 100% of the amounts or contributions levied by the Strata Company against the Lessor or the Leased Premises where the Leased Premises constitutes the whole of the strata lot being levied or that same proportion of 100% of the amounts or contributions so levied as the proportion the area of the Leased Premises bears to the area of the strata lot where the Leased Premises constitutes only a part of a ·strata lot and such amounts or contributions shall include (but without limiting the generality of the foregoing) all contributions payable to the administrative fund and any reserve fund established by the Strata Company pursuant- to section 36 of the Strata Titles Act 1985 to cover the costs, charges and expenses referred to as (but not limited to) Strata Company Outgoings for the operation, maintenance, control, promotion and management of the parcel of land the subject of the Strata Plan and the payment of insurance premiums for the discharge of the Strata Company's obligations whether or not such contributions are levied on a periodical basis and the relevant percentage of the amounts or contributions so levied shall be payable in and for the Preliminary Period, each Lease Year and the Final Lease Year in the manner specified in sub-clause 4.3 below PROVIDED THAT the Lessee shall only be liable to
3
pay the relevant percentage of the amounts or contributions so levied in respect of the Preliminary Period each Lease Year and the Final Lease Year after the Lessor has in each instance· given notice in writing to the Lessee of the total of the amount of contributions to be or estimated to be payable by way of levies to the Strata Company in respect of the Preliminary Period, each Lease Year and the Final Lease Year and the Lessee's relevant percentage of the amounts or contributions so levied.
4.2 Whilst no contribution is levied by the Strata Company pursuant to sub-clause 4.1· hereof in respect of certain of the items comprising Strata Company Outgoings (because for whatever reason they are not otherwise included in any contribution payable to the Strata Company) the Lessee shall nevertheless pay 100% of the amount of those items which are separately chargeable or relate solely to the Leased Premises and/or that other percentage (if any) specified in the Schedule of those items comprising Strata Company Outgoings which are not separately chargeable or do not relate solely to the Leased Premises or any other specific premises ("Lessee's Percentage Share of estimated or actual Strata Company Outgoings"). Where those items are not separately chargeable or do not relate solely to the Leased Premises and where the Leased Premises constitutes the whole of a strata lot the Lessee's Percentage share of estimated or actual Strata Company Outgoings shall be the same as the proportion (expressed as a percentage) the unit entitlement of the whole of that strata lot bears to the total of the unit entitlement of all of the strata lots on the Strata Plan but where the Leased Premises constitutes a part only of a strata lot the Lessee's Percentage share of estimated or actual Strata Company Outgoings shall be the same as the proportion (expressed as a percentage) the unit entitlement of the whole of that strata lot bears to the total of the unit entitlement of all of the strata lots on the Strata Plan multiplied by the proportion the area of the Leased Premises bears to the area of that strata lot PROVIDED THAT the Lessee shall only be liable to pay in relation to such items of Strata Company Outgoings in respect of the Preliminary Period and each Lease Year and the Final Lease Year after the Lessor has in each instance given notice in writing to the Lessee of the total estimated cost of the items comprising Strata Company Outgoings and the amount of the Lessee's contribution thereto in respect of the Preliminary Period and each succeeding Lease Year and the Final Lease Year and if the Lessor shall by notice in writing to the Lessee following the Preliminary Period and each Lease Year and the Final Lease Year in each case notify the Lessee of the total amount of the actual cost of the items comprising Strata Company Outgoings and the amount of the Lessee's contribution thereto and if the total amount of the actual cost of the items comprising Strata Company Outgoings for such period exceeds the amount of the estimated cost thereof for that period then the Lessee will within FOURTEEN (14) days of service of notice from the Lessor to that effect pay to the Lessor the difference between the amount of the Lessee's contribution to such costs for such period and the amount paid by the Lessee on account of the Lessee's contribution to such costs for such period and if the total amount of such costs for such period is less than the amount of the estimated costs for that period then the difference between the amount of the Lessee's contribution to actual costs for such period and the amount paid by the Lessee on account of the estimated costs thereof for such period shall be credited to the Lessee by deducting the difference from the next ensuing payment of the amount of the Lessee's contribution to the estimated costs of such items comprising Strata Company Outgoings.
4.3 Payment on account of the Lessee's contribution to Strata Company levies or the costs of the items comprising Strata Company Outgoings as set out in clause 4.1 or 4.2 is in the following manner:
4.3.1 for the. Preliminary Period:
4.3.1.1 ONE (1) payment on the date of commencement of the Term of an amount equivalent to that proportion of the Lessee's contribution to estimated Strata Company levies or the costs of
I·
! 4.3.1.2
4
the items comprising Strata Company Outgoings as the case may be for the Preliminary Period as the remaining number of days in the month of the date of commencement of the Term bears to. the number of days in the Preliminary Period;
on the first day of the month next following the date of commencement of the Term and on each and every month thereafter an amount equivalent to the balance of the Lessee's contribution to estimated Strata Company levies or the costs of the items comprising Strata Company Outgoings as the case may be for the Preliminary Period by equal and successive monthly payments in advance;
4.3.2 for each Lease Year on the first day of each Lease year and thereafter on the first day of each and every month an amount equivalent to one twelfth of the Lessee's contribution to estimated Strata Company levies or the costs of the items comprising Strata Company Outgoings as the case may be in each case; and
4.3.3 for the Final Lease Year, in advance on the first day of each month an amount calculated by dividing the amount of the Lessee's contribution to estimated Strata Company levies or the costs of the items comprising Strata Company Outgoings as the case may be for the Final Lease Year by the number of days in the Final Lease Year and multiplying the result by the number of days in the month for which such payment is being made.
5. MAINTAIN AND REPAIR LEASED PREMISES
5.1 To put and keep the Leased Premises in good and substantial repair and condition and {provided that the Lessor's indemnity under any insurance policy for the time being in force shall not have been vitiated or avoided by any act or neglect of the Lessee or his servants agents sub-lessees licensees or invitees) damage by fire storm tempest or Act of God excepted and subject to the aforesaid exception to maintain any air-conditioning equipment solely servicing the Leased Premises in as good and substantial repair as it was in at the Commencement Date and at the Lessee's cost effect and keep in force with a reputable firm of air-conditioning contractors a maintenance contract covering all routine repairs, servicing and maintenance which may from time to time be required to the air-conditioning equipment PROVIDED THAT if by reason of fair wear and tear the air-conditioning equipment or any part thereof is not capable of functioning properly and becomes uneconomic to repair in the sense that a prudent owner thereof would replace the air-conditioning equipment or such part rather than expend the monies required to put it into good working order then the Lessee will at the Lessee's cost replace the air-conditioning equipment or such part thereof with air-conditioning equipment or any part thereof suitable for the air-conditioning of the Leased Premises in accordance with the standards of air-conditioning then generally prevailing in premises of a similar character. Any dispute arising as to the condition of the air-conditioning equipment shall be referred to a suitable qualified air-conditioning expert appointed by the President of the Royal Australian Institute of Architects (Western Australian Division) who shall act as an expert and not as an arbitrator and whose decision shall be final and binding on the Lessor and the Lessee. The costs of the determination of the expert appointed in accordance with this sub-clause shall be paid by the Lessee.
5.2 To keep the Leased Premises cleaned, drained, in a sanitary condition and clear of rubbish and debris and free from all vermin, insects, pests, birds and animals.
5.3 To keep all drains pipes water telephone gas electricity and sewerage connections on or appurtenant to or connecting with the Leased Premises in good and substantial repair
5
and condition and cleaned drained and in a sanitary condition and clear of all rubbish and debris and not allow any person to place rubbish, paper or any other material likely to block sewage in the toilets on or appurtenant to the Leased Premises or to which the Lessee has access and to pay to the Lessor upon demand by it the cost of clearing any blockages which may occur in the said drains pipes and connections between the external boundary of the Leased Premises and the point of entry thereof into any trunk main caused or contributed to by any neglect or default on the part of the Lessee or the Lessee's employees agents contractors invitees licensees or sub-tenants.
5.4 To keep the Chattels in good working order and condition and to renew or replace any Chattels which may become worn out obsolete lost or destroyed or be stolen or broken.
5.5 To immediately make good any breakage, defect or damage to the Leased Premises, the Building or to any adjoining premises or any facility or appurtenance thereof occasioned by want of care, misuse or abuse on the part of the Lessee or of any employee, agent, contractor, sub-contractor, licensee or invitee of the Lessee or otherwise occasioned by any breach or default by the Lessee of the provisions of this Lease Agreement.
5.6 Not to allow the Leased Premises to deteriorate or become prejudicially affected or impaired.
5.7 To keep any hot water system in good working order and condition and replace any electric light tubes and globes which become worn out or broken and renew any broken glass on the Leased Premises.
5.8 At the determination of the Term to clear the Leased Premises of all rubbish and debris and to leave the Leased Premises in a clean and tidy condition to the satisfaction of the Lessor.
5.9 To repair all defects to the Leased Premises of which notice shall be given by the Lessor to the Lessee and for which the Lessee is liable under this Lease and in default the Lessor may without affecting any right or power arising from the default repair or remedy the defect (without being under any obligation to do so) and the Lessee shall pay to the Lessor the costs and expenses incurred by the Lessor in so repairing or remedying those defects.
5.1 O To use only those areas specified by the Lessor from time to time as high load areas for the placement of safes, compactuses and other items of substantial mass.
5.11 Where any loss or damage is caused to the Leased Premises (and where the insurer under an insurance policy purporting to cover such loss or damage has refused or failed to indemnify the Lessor because of some act or default or alleged act or default of any person other than the Lessor) to make good any loss or repair any damage and in default to pay to the Lesso'r the costs and expenses incurred by the Lessor in making good any such loss or repairing any such damage and to reimburse to the Lessor all and any "excess" payment made by the Lessor or the Strata Company to the insurer of the Lessor or the Strata Company in respect of damage suffered by or sustained to the Leased Premises or any buildings or other improvements on the parcel of land the subject of the Strata Plan.
6. PAINTING
Subject to any stipulation to the contrary specified in the Schedule, ("Painting Stipulation") to apply internally once during the last or second last month of the Term and any extension or renewal thereof, or forthwith upon any sooner determination of the Term (and whether such sooner determination be by reason of surrender forfeiture re-entry or otherwise) in a proper and workmanlike manner as approved by the Lessor:-
6
6.1 at least two coats of good quality paint to those parts of the Leased Premises which are now or usually painted in colours approved by the Lessor; and
6.2 varnish or other treatment to those parts of the Leased Premises which are now or usually varnished or treated; and
6.3 wall-paper to those parts of the Leased Premises which are now or usually wall-papered in wall-paper approved by the Lessor.
7. INSURANCE
7 .1 To insure and keep insured in the joint names of the Lessor and Lessee for their respective rights and interests with a public insurance company approved by the Lessor against the following risks:-
7.1.1 all liability to any person or property howsoever arising from in or about the Leased Premises in a sum or cover of an amount required by the Lessor but in any event not less than FIVE MILLION DOLLARS ($5,000,000.00) in respect of any one claim (which amount of cover shall be increased from time to time during the Term by agreement between the parties having regard to the then extent of damages awards and failing agreement as determined by the Commercial Registrar); and ·
7.1.2 loss or destruction of or damage to all plate or other glass in or about or forming part of the Leased Premises to its full replacement value.
7.2 To insure and keep insured with a public insurance company approved by the Lessor against the following risks:-
7.2.1 workers' compensation or other statutory or other liability arising in respect of employees or independent contractors of the Lessee;
7.2.2 loss or destruction of or damage to the Lessee's fixtures, fittings ·equipment and stock in trade by fire, fusion, explosion, smoke, lightning, flood, storm, tempest, rainwater, water damage, sprinkler leakage, earthquake, riot, civil commotion, malicious damage, impact by vehicles, aircraft and articles dropped therefrom to the full replacement value thereof;
7.2.3 loss of the Lessee's fixtures, fittings, equipment and stock in trade by theft or burglary; and
7.2.4 such other risks against which in the reasonable opinion of the Lessor from time to time insurance should be taken out.
7.3 To pay promptly all premiums and other monies payable under any policy when due and to otherwise comply with all the terms warranties and conditions of the policy or requirements of the insurer relating to the policy and the Leased Premises and not do or fail to do any act matter or thing that may cause any premium in respect of any of the aforesaid insurances to be increased or cause such insurances to be prejudiced or liable to be cancelled or avoided or whereby any claim on any policy of insurance may be reduced or payment withheld either in whole or in part.
7.4 Not, without first obtaining the consent of the Lessor, to reduce or do anything which may cause the amount of insurance cover under any policy to be reduced.
7 .5 That in the event of any injury to any person or damage to the Leased Premises the
I I
I
7
Lessor alone shall have full power to receive payment of insurance monies and to settle compromise or enforce any claim against any insurance company or for all monies payable under any insurance or compensation payable in respect of the insurances referred to in sub-clauses 7.1.1 and 7.1.2.
7.6 To deliver to the Lessor copies of all current policies or insurance effected under this clause.
7.7 To apply all monies received under any insurance in whole or in part in making good the loss or damage.
7.8
7.9
That all policies or insurance effected under this clause shall bear an endorsement that they shall not be cancelled until after FOURTEEN (14) DAYS notice in writing has been given to the Lessor.
To pay to the Lessor all and any excess payments required to be paid by the Lessor to the insurers in respect of any claims made on any of the insurance policies which are in the name of and/or for the benefit of the Lessor
8. PAY COSTS
To pay to the Lessor all the Lessor's costs fees and expenses which may be payable expended incurred or sustained by the Lessor (including, without limiting the generality of the foregoing, legal costs and disbursements on a full indemnity basis) in respect of or incidental to:-
8.1 the instructions for and in relation to the negotiation preparation execution and stamping of this Lease and all copies and all stamp duty payable thereon;
8.2 any consent, approval, exercise or non-exercise of any right or exercise or enforcement or attempted exercise or enforcement of the Lessor's Remedies under this Lease or at law;
8.3 any breach of or failure of the Lessee to observe and perform the Lessee's Covenants;
8.4 compliance by the Lessor with the provisions of section 81 of the Property Law Act 1969 notwithstanding that the Lessee may have applied to the Court (whether successfully or not) for relief pursuant to section 81 (2) of the Property Law Act 1969 provided that the Lessee was or is in breach of any covenant or agreement in this Lease;
8.5 the withdrawal of any caveat claiming an interest in the Leased Premises and lodged over the Leased Premises pursuant to this Lease; and
8.6 the collection of Rent and the control security administration and management (including, without limiting the generality of the foregoing, fees payable to the Lessor's managing agents (if any)) of the Leased Premises.
9. PAY INTEREST
9.1 To pay interest to the Lessor at the rate being the rate being fifteen per cent (15%) per annum on the daily balance of all outstanding Rent, Lessee's Percentage Share of estimated or actual Strata Company Outgoings and all other costs monies and expenses due or payable by the Lessee and whether demand therefor has been made or not and such interest shall be calculated from the date payment is due until the date of payment.
9.2 To pay by way of additional rent interest at the same rate per annum as provided for in sub-clause 9.1 above on the cost of all improvements additions or alterations to the Leased Premises effected by the Lessor at the request of the Lessee or in pursuance of
8
requisitions or orders of or from any local public or other authority made by reason (either wholly or in part) of the nature of the business carried on by the Lessee from the Leased Premises which additional rent shall commence from the date of completion of the respective improvements additions or alterations and shall be added to the Rent and be payable by instalments on the days and in the manner upon which the Rent is made payable such payments to be apportioned if necessary.
10. ENTRY ON LEASED PREMISES
10.1 To permit the Lessor or the Strata Company or the servants or agents thereof to enter the Leased Premises with or without tools machines and materials at all reasonable times subject to giving reasonable notice to the Lessee except in the case of an emergency when no notice need be given to:-
10.1.1 inspect the Leased Premises;
10. 1.2 carry out any rebuilding repair restoration alteration addition or improvement to the Leased Premises or any adjoining premises that in the opinion of the Lessor or the Strata Company may be necessary desirable or convenient;
10. 1.3 do all such acts matters and things as in the opinion of the Lessor may be necessary desirable or convenient in order to rectify any breach of the Lessee's Covenants or to enforce the Lessor's Remedies (without the Lessor being under any obligation so to do and without prejudice to the Lessor's Remedies).
10.2 To facilitate the exercise by the Lessor of the Lessor"s Remedies and not to claim any compensation or abatement of Rent for any inconvenience or damage caused by the Lessor provided that the Lessor shall exercise his rights so as to minimise as far as is reasonably practicable damage and inconvenience to the Lessee.
11. NOT TO ALTER OR DAMAGE LEASED PREMISES
11. 1 Not to drill any holes in any part of the floor, walls, partitions or ceilings of the Leased Premises except with the express prior written approval of the Lessor's structural engineer and not to make or allow to be made any external or internal addition or alteration to the Leased Premises except in accordance with drawings and specifications and in materials previously approved in writing by the Lessor or his architect and the engineer's and architect's costs of and associated with which shall be paid by the Lessee on demand.
11.2 Not to damage dismantle or destroy the Leased Premises or allow the Leased Premises to be damaged, dismantled or destroyed.
12. DELIVER NOTICES
12.1 To forthwith deliver to the Lessor copies of all notices orders or summonses relating to or which could relate to the Leased Premises received by the Lessee from any person or local public or other authority.
12.2 To pay to the Lessor all monies payable by way of compensation or otherwise relating to the Leased Premises by any local public or other authority.
13. INDEMNITY
Notwithstanding the existence of any policy or policies of insurance in the name of the Strata Company or the Lessor or of the Lessor and any other person including the Lessee the Lessee hereby indemnifies and agrees to keep indemnified the Lessor from and against:-
l J
l 1
9
13.1 all loss or damage to the Leased Premises or the Building caused by the negligence of the Lessee or any employee agent contractor licensee customer invitee or sub-tenant of the Lessee in the use and occupation of the Leased Premises or abuse of water gas or electricity or air-conditioning fire protection or fire fighting equipment or installations supplied to or situated on the Leased Premises;
13.2 all claims, demands, summonses, writs, suits, proceedings, orders, decrees, costs, charges, losses, expenses and damages which may be made against or be sustained or suffered by or be recovered from the Lessor by the Lessee or by any other person for any fatality, personal injury or damage to property the Lessee or such other person may sustain when using or entering or near the Leased Premises or any appliance connected with the Leased Premises whether or not such fatality, personal injury or damage to property arises or has arisen as a result of the negligence of or as a result of the creation of some dangerous thing or state of affairs by the Lessee or the employees agents licensees customers or invitees of the Lessee and whether the existence of such dangerous thing or dangerous state of affairs was or ought to have been known to the Lessor or not;
13.3 the exercise or attempted exercise of the Lessor's Remedies.
14. COMPLY WITH ACTS
To comply with:-
14.1 statutes and other lawful requirements of any Local or Public Authority relating to the Leased Premises or its use or occupancy (including any street, pathway or passage adjoining or co-extensive with the Leased Premises) but limited in the case of statutes which may require structural demolition or additions to the Leased Premises to requirements relating to the use of the Leased Premises by the Lessee or the number or sex of persons using or occupying or to use or occupy the Leased Premises;
14.2 fire sprinkler requirements and/or fire prevention and alarm regulations relating to the Leased Premises and to supply and maintain from time to time as required within the Leased Premises such number and type of fire extinguishers as may be required pursuant to any policy of insurance or by any direction or requirements of the Western Australian Fire Brigades Board or any other authority having jurisdiction over the same and to pay for the cost (including architect's and other fees) of maintenance and alterations to the sprinkler and/or fire prevention and alarm installations which may become necessary by reason of any change in or the non-compliance by the Lessee with the said requirements and regulations; and
14.3 all the provisions of the Strata Titles Act 1985 and the by-laws of the Strata Company as amended or varied from time to time by the Strata Company in respect of the Building.
15. YIELD UP POSSESSION
15.1 To advise the Lessor of the combinations of any safes or locks on and hand over all keys to and quietly deliver up possession of the Leased Premises in good repair and condition consistent with the Lessee's Covenants at the expiration or sooner determination of the Term or any period of holding over.
15.2 To remove upon the expiration or sooner determination of the Term all stock and chattels and, unless otherwise required by the Lessor, all signs and advertisements of any kind and fixtures fittings equipment and things belonging to or brought upon the Leased Premises by the Lessee and promptly make good to the reasonable satisfaction of the Lessor all damage caused by that removal so that the Leased Premises· shall be left as if
!
l J
10
no such signs, advertisements, fixtures, fittings, equipment and things had been painted, affixed, erected or placed thereon or therein and, if required by the Lessor, re-alter any alterations made by the Lessee to the Leased Premises so that the Leased Premises is converted back to its condition as at the Commencement Date.
15.3 Any fixtures, fittings, equipment, things, stock, chattels or other property which shall be found upon the Leased Premises after the expiration or sooner determination of the Term shall be deemed to be abandoned by the Lessee and the same shall be and become the property of the Lessor unless the Lessor shall deposit the same in a public warehouse or elsewhere pursuant to paragraph 15.4 below.
15.4 Any fixtures, fittings, equipment, things, stock, chattels or other property which the Lessor does not elect to make the property of the Lessor pursuant to sub-clause 15.3 above may at the option of the Lessor be deposited in a public warehouse or elsewhere at the cost and to the account of the Lessee and the Lessor shall not be liable for any loss or damage occasioned thereby and the Lessor shall not be liable in any cause or action including (but not limited to) conversion detinue or trespass to goods by reason thereof.
16. NOTTO INCREASE RISKS OF DAMAGE
16.1 Not to do or allow to be done any act or thing that may cause any insurance premium to be increased or that may cause any insurance taken out by the Lessor or the Strata Company to be prejudiced or become liable to be cancelled or avoided or voidable or whereby any claim on the insurance policy may be or become liable to be reduced whether such insurance is in respect of the Leased Premises or the Building.
16.2 To keep all heat power and light appliances and installations guarded or otherwise maintained in a safe manner so as not to increase any risk of fire or other damage to the Leased Premises or the Building.
16.3 Promptly to report in writing to the Lessor the presence of a person on the Leased Premises with a notifiable infectious disease and any occurrence or omission which may give rise to damage to or destruction or otherwise affect the Leased Premises or the Building.
17. NOT TO OVERLOAD LEASED PREMISES
Not to break strain or damage any part of the Leased Premises by overloading or any other cause and not to install any electrical equipment on the Leased Premises that may in the opinion of the Lessor overload the cables wires switchboards or sub-boards through which electricity is conveyed to the Leased Premises or the Building PROVIDED THAT any alterations which may be necessary to comply with the requirements of the Lessor's insurance underwriters and/or any Act (State or Federal) regulation or by-law relating thereto shall be effected by the Lessor at the expense of the Lessee and the entire cost to the Lessor of such alteration shall be paid upon demand by the Lessee and the Lessor may require the Lessee to deposit with the Lessor the estimated cost thereof before any such alterations are commenced.
18. NOT TO CARRY ON OFFENSIVE ACTIVITIES
Not to carry on or permit to be carried on at or around or about the Leased Premises any auctions or fire sales or the like or any noxious noisome or offensive activity trade or calling or anything which may be a nuisance annoyance or objectionable or cause damage or loss to the Lessor or the owners or occupiers of any adjoining property or any other person or to use the Leased Premises for any illegal or immoral purposes PROVIDED THAT the normal and proper conduct of the Business shall not be deemed to be in breach of this clause.
1
I I I I
11
19. CARRY ON BUSINESS
19.1 To use the Leased Premises only for the purpose of carrying on the Business and not to use the same in conflict with any other tenants of the Building or the land upon which the Building is situate.
19.2 To carry on the Business in a proper and efficient manner and keep the Leased Premises adequately stocked and open for business during normal business hours or such hours as are allowed under any licence or by any law.
20. SIGNS
20.1 Not to display or affix to the Leased Premises any business or advertising sign or notice without first obtaining the consent of the Lessor or the Strata Company which consent shall not be unreasonably withheld if the nature and size of such sign or notice is compatible with the use of the Leased Premises as commercial business or trading premises.
20.2 To permit the Lessor during the last THREE (3) MONTHS of the Term or during any period of holding over to affix to the Leased Premises signs or notices for the reletting of the Leased Premises and the Lessee will not remove damage or obscure or cause to be removed damaged or obscured any sign or notice and during the same period to permit intending Lessees and the Lessor and others with written authority from the Lessor at reasonable times to view the Leased Premises.
21. NOT TO ASSIGN LEASED PREMISES
21.1 Not to assign sub-let mortgage charge or encumber or otherwise part with possession of the Leased Premises or this Lease or any estate or interest in the Leased Premises or any part thereof without first obtaining the consent of the Lessor and if the Lessee shall be a corporation any change in the beneficial ownership of shares in the corporation or any related body corporate within the meaning of section 50 of the Corporations Law shall be deemed to be an assignment of this Lease PROVIDED THAT the Lessor hereby agrees that in the event of the Lessee wishing to assign or transfer this Lease to any person the Lessor shall not unreasonably withhold consent to such assignment or transfer if:-
21.1.1 the proposed assignee or transferee is responsible respectable and financially solvent with at least equal trading and turnover potential to that of the Lessee, the onus of proving which facts shall be upon the Lessee to the satisfaction of the Lessor; and
21.1.2 the Lessee procures the execution by such assignee or transferee of an assignment or transfer of this Lease to which the Lessor is a party in such form as the Lessor or the solicitors for the Lessor shall approve (which shall be prepared by the solicitors for the Lessor at the cost and expense in all respects of the Lessee) and which shall, inter alia, contain a covenant by the assignee or transferee with the Lessor that the assignee or transferee will at all times during the continuance of the Term duly pay the Rent at the times and in the manner mentioned in this Lease and perform and observe all the Lessee's Covenants; and
21.1.3 all rent and other monies then due or payable under this Lease shall have been paid and there shall not then be any existing unremedied breach of the Lessee's Covenants; and
J
I I
12
21.1.4 the Lessee pays to the Lessor all the proper costs charges and expenses incurred by the Lessor of and incidental to any enquiries which may be made by or on behalf of the Lessor a.s to the responsibility solvency fitness and suitability of any proposed assignee or transferee together with all those proper fees, costs, charges and expenses which the Lessor's agent (if any) shall be entitled to charge the Lessor for acting in relation to an assignment governed by the Real Estate and Business Agents Act 1978.
21.2 That the covenants and agreements on the part of any assignee or transferee shall be deemed to be supplementary to this Lease and shall not in any way relieve or be deemed to relieve the Lessee or the Lessee's guarantors (if any) from liability under this Lease. Where the proposed assignee or transferee is a corporation the Lessor may as a condition of consent to such assignment or transfer require that the covenants contained therein by the assignee or transferee be guaranteed by the directors and/or principal shareholders of such corporation.
22. CAVEATS
22.1 Not to lodge any absolute caveat nor to register this Lease at the Land Titles Office PROVIDED THAT this shall not disallow the Lessee from lodging the usual subject to claim caveat to protect the Lessee's interest under this Lease.
22.2 That in consideration of the sum of ONE DOLLAR ($1.00) paid by the Lessor to the Lessee (receipt whereof the Lessee by its execution of this Lease acknowledges) the Lessee HEREBY IRREVOGABL Y APPOINTS the Lessor (and where the Lessor is a corporation then every officer of the Lessor authorised by the Lessor from time to time to so act) to be the true and lawful Attorney for the Lessee in his name or on his behalf and as the act and deed of the Lessee to sign and lodge a withdrawal of any absolute caveat or a discharge or surrender of any registered lease at any time and to sign and lodge a withdrawal of any other caveat on the determination of the Term or any period of holding over.
22.3 That the Lessee shall ratify and confirm and agrees to ratify and confirm all that the Attorney shall do or cause to be done under this clause and shall indemnify the Attorney or the Lessor in respect of any loss arising from any act matter or thing done or attempted to be done under or by virtue of this clause.
LESSOR'S COVENANT
23. COVENANT BY LESSOR
The Lessor COVENANTS with the Lessee (to the intent that it shall bind the registered proprietor for the time being of the Leased Premises) that subject to the Lessee duly paying the Rent and observing and performing the Lessee's Covenants and all other covenants on its part herein contained the Lessee may (except as provided in this Lease) peaceably hold and enjoy the Leased Premises during the Term without any interruption or disturbance by the Lessor or any person claiming under or in trust for the Lessor.
MUTUAL AGREEMENTS
The Lessor and the Lessee mutually AGREE AND DECLARE as follows:
24. FIRST OPTION TERM
If the Lessee wishes to take a lease of the Leased Premises for a further term and gives to the Lessor notice to that effect at least THREE (3) MONTHS prior to the expiration of the Term but not earlier than SIX (6) MONTHS prior to the expiration of the Term and at the time of giving the
13
notice and at the expiration of the Term:-
24.1 there shall be no outstanding breach of the Lessee's Covenants; and
24.2 the Lessor's right of re-entry shall not have arisen; and
24.3 during the Term there shall not have been any breach of the Lessee's Covenants which was not rectified within FOURTEEN (14) DAYS of notice of that breach being given by the Lessor
THEN the Lessor shall grant to the Lessee a lease of the Leased Premises for the First Option Term (if any) specified in the Schedule at a rent determined and reviewed in accordance with clause 26 but otherwise upon the same terms and conditions other than the right of renewal contained in this clause and pursuant to the exercise of the option herein the Lessee shall execute a Deed of Extension of this Lease to be prepared by the Lessor's solicitors at the cost of the Lessee in all respects.
25. SECOND OPTION TERM
If the Lessee has been granted a lease of the Leased Premises for the First Option Term and wishes to take a further lease of the Leased Premises for a further term and gives to the Lessor notice to that effect at least THREE (3) MONTHS prior to the expiration of the Second Option Term but not earlier than SIX (6) MONTHS prior to the expiration of the First Option Term and at the time of giving the notice and at the expiration of the First Option Term:-
25.1 there shall be no outstanding breach of the Lessee's Covenants; and
25.2 the Lessor's right of re-entry shall not have arisen; and
25.3 during the First Option Term there shall not have been any breach of the Lessee's Covenants which was not rectified within FOURTEEN (14) DAYS of notice of that breach being given by the Lessor
THEN the Lessor shall grant to the Lessee a lease of the Leased Premises for the Second Option Term (if any) specified in the Schedule at a rent determined and reviewed in accordance with clause 26 but otherwise upon the same terms and conditions other than the right of renewal contained in this clause and pursuant to the exercise of the option herein the Lessee shall execute a further Deed of Extension of this Lease to be prepared by the Lessor's solicitors at the cost of the Lessee in all respects.
25A. THIRD OPTION TERM
If the Lessee has been granted a lease of the Leased Premise for the Second Option Term and wishes to take a further lease of the Leased Premises for a further term and gives to the Lessor notice to that effect at least THREE (3) MONTHS prior to the expiration of the Second Option Term but not earlier than SIX (6) MONTHS prior to the expiration of the Second Option Term and at the time of giving the notice and at the expiration of the Second Option Term:-
25A.1 there shall be no outstanding breach of the Lessee's Covenants; and
25A.2 the Lessor's right of re-entry shall not have arisen; and
25A.3 during the Second Option Term there shall not have been any breach of the Lessee's Covenants which was not rectified within FOURTEEN (14) DAYS of notice of that breach being given by the Lessor
I
j
)
14
THEN the Lessor shall grant to the Lessee a lease of the Leased Premises for the Third Option Term (if any) specified in the Schedule at a rent determined and reviewed in accordance with clause 26 but otherwise upon the same terms and conditions other than the right of renewal contained in this or any other clause and pursuant to the exercise of the option herein the Lessee shall execute a further Deed of Extension of this Lease to be prepared by the Lessor's solicitors at the cost of the Lessee in all respects.
26. REVIEW OF RENT
26.1 On the date or dates specified in the Schedule hereto as the "Non-Market Rent Review Dates" the Rent payable for the period commencing on the relevant Rent Review Date up to but not including the following Rent Review Date (the "Rental Period") shall be reviewed, calculated and adjusted and shall be the greater of either-
26.1.1.
26.1.2
the Rent payable by the Lessee immediately prior to the Rent Review Date
PLUS
an amount calculated in accordance with the following formula:-
B-A --xc A
WHERE
A= the value of Index Points of the last published Consumer Price Index (All Groups) for Perth Western Australia at the commencement of the Lease or the previous Rent Review Date (whichever is the later);
B = the value of Index Points of the last publishe'cl Consumer Price Index (All Groups) for Perth Western Australia at the Rent Review Date;
C = the Rent payable by the Lessee immediately prior to the Rent Review Date;
OR
the Rent payable by the Lessee immediately prior to the Rent Review Date increased by five (5%) per cent per annum.
26.2 In respect of each of the Rent Review Dates specified in the Schedule as the Market Rent Review Dates (such dates in this sub-clause hereinafter being known as "relevant Rent Review Dates") the Rent to be payable therefrom shall be the Market Rent estimated by the Lessor to be payable for the Leased Premises and the Lessee shall have FOURTEEN (14) DAYS from but not including the date of receipt of notice by the Lessor of the Market Rent to be payable from the relevant Rent Review Date to give to the Lessor written notice that the Lessee agrees or does not ·agree with the Lessor's estimate aforesaid and if the Lessee neglects or omits to give to the Lessor any such notice the Lessee shall be deemed to have agreed to pay the Lessor's estimate aforesaid. If the Lessee within the FOURTEEN (14) DAYS period specified above gives to the Lessor written notice that the Lessee does not agree with the Lessor's estimate aforesaid then the Market Rent shall be determined at the expense of the Lessee and the Lessor in equal shares by a valuer who is a member of the Australian
I I
15
Property Institute Inc, Western Australian Division, nominated by the President for the time being of the said Division of the said Institute at the request of the Lessor and the Lessee or of either of them and such valuer shall act as an expert and such determination shall be final and binding on the parties.
26.3 PROVIDED ALWAYS AND IT IS HEREBY AGREED that the Lessor will not by reason of a failure to give notice of a review of the Rent prior to a Rent Review Date forfeit its right to have the Rent reviewed and the reviewed Rent will be payable on and from the Rent Review Date in any event and PROVIDED FURTHER that the Rent payable from a Rent Review Date shall never be less than the Rent payable immediately preceding the relevant Rent Review Date.
27. EXCLUSIONS OF PROPERTY LAW ACT
Section 82 of the Property Law Act 1969 is excluded.
28. DEFAULT BY LESSEE
28.1 If:-
28.1.1 the Rent shall be unpaid after it is due (whether legal or formal demand shall have been made for payment or not); or
28.1.2 the Lessee being a company shall enter into liquidation whether voluntary or involuntary (except for the purposes of amalgamation or reconstruction approved by the Lessor) or enter into any composition arrangement with or assignment for the benefit of its creditors or a receiver or manager or administrator of the Lessee is appointed; or
28.1.3 the Lessee shall suffer or permit any execution or distress to be levied on the Leased Premises; or
28.1.4 the interest of the Lessee in this Lease shall be taken in execution; or
28.1.5 there shall be a breach of any of the Lessee's Covenants (other than the covenant to pay Rent) and the Lessor shall have given notice to the Lessee in accordance with section 81 of the Property Law Act 1969 or otherwise (provided that the Lessor need only give such notice if required to do so under the Property Law Act 1969 or otherwise) and the Lessee has failed within the time specified in the notice to remedy the breach if it is capable of remedy or to make reasonable compensation in money therefor to the satisfaction of the Lessor
THEN the Lessor or any person authorised by the Lessor may determine the Term and this Lease by:-
28.1.6 entering and repossessing the Leased Premises or any part thereof in the name of the whole without any prior demand or notice; or
28.1.7 by giving notice in writing to the Lessee determining the Term and this Lease and from the date of service of the notice the Term and this Lease shall absolutely determine
but without prejudice to the Lessor's Remedies and without relieving the Lessee from liability for Rent accrued up to such determination or for any breach of the Lessee's Covenants antecedent to such determination. For the purposes of re-entry and repossession the Lessor.shall have power to open by any means· any door or fastening
16
on the Leased Premises and expel or remove all persons and property therefrom without being liable for any action for trespass assault or other proceedings whatsoever for so doing.
28.1.8 The covenants by the Lessee contained in this Lease to pay the Rent rates and taxes and the Strata Company levies and the Lessee's Percentage Share of estimated or actual Strata Company Outgoings at or within the times and in the manner herein provided and not to assign the Leased Premises shall be essential terms of this Lease (provided that the presence of this clause in this Lease shall not mean or be construed as meaning that there are no other essential terms of this Lease) and the acceptance by the Lessor of arrears or any late payment of Rent rates and taxes or Strata Company levies or the Lessee's Percentage Share of estimated or actual Strata Company Outgoings shall not mean or be deemed to mean such covenants or obligations have ceased to be essential terms of the Lease or constitute a waiver of the provision that such covenants or obligations are essential terms.
28.1.9 Without prejudice to any other right or remedy of the Lessor expressly or impliedly contained in this Lease or at law or in equity in respect of any antecedent breach of the provisions of this Lease by the Lessee, if this Lease is determined for breach of an essential term or by the acceptance of the Lessor of a repudiation of the Lease by the Lessee or as a result of the other instances of default outlined in sub-clause 28.1 above the Lessor shall be entitled to recover compensation from the Lessee and the Lessee agrees (such agreement to survive the determination of this Lease or any deemed surrender at law of this Lease) to pay to the Lessor as and by way of liquidated damages for the breach, repudiation or default causing or amounting to determination aforesaid (regardless of whether the Lessor has re-entered physically or by notice or the Lessee has vacated or abandoned or surrendered the Leased Premises) the aggregate of the Rent rates and taxes, Strata Company levies and the Lessee's Percentage Share of estimated or actual Strata Company Outgoings and all other monies which would have been payable by the Lessee for that part of the Term as had not expired at the date this Lease is determined (discounted in respect of instalments of Rent rates and taxes Strata Company levies and the Lessee's Percentage Share of estimated or actual Strata Company Outgoings and all other monies payable herein not then accrued or due at the rate of 0.833% for each month by which the date for payment of such instalment of Rent rates and taxes Strata Company levies and the Lessee's Percentage Share of estimated or actual Strata Company Outgoings payable during the balance of the Term is hereby brought forward calculated from when the Lease is determined) together with any costs and expenses incurred by the Lessor or which the Lessor reasonably expects to incur as a result of such early determination less the aggregate of the Rent rates and taxes Strata Company levies and the Lessee's Percentage Share of the estimated or actual Strata Company Outgoings and all other monies payable hereunder (similarly discounted as aforesaid) which the Lessor may, using reasonable endeavours have obtained or be likely to obtain by re-letting the Leased Premises for the residue of the Term after the Lease is determined and a certificate signed by the Lessor shall be prima facie proof of the amount of the Lessor's liquidated damages determined as aforesaid and of all components thereof and of the reasonableness of all of the Lessor's estimates involved therein.
I j
j
17
29. ABATEMENT OF RENT
If:-
29.1 the Leased Premises shall during the Term be destroyed or damaged so as to be unfit for occupation or use; and
29.2 the policy of insurance maintained by the Strata Company in respect of the Building, fixtures, fittings and other improvements on the Strata Plan of which the Leased Premises forms part or the policy of insurance (if any) maintained by the Lessor in connection with loss of rent shall not have been invalidated or payment of the policy monies or any part of those monies refused in consequence of any act or default or alleged act or default of the Lessee or the Lessee's agents servants or other person on the Leased Premises with the Lessee's consent (whether express or implied)
THEN the Rent or a proportion of the Rent according to the nature and extent of the damage sustained shall be suspended and cease to be payable until the Leased Premises shall be reinstated and made fit for occupation and use (PROVIDED THAT neither the Strata Company nor the Lessor shall be under an obligation to so reinstate).
· 30. DESTRUCTION OF THE LEASED PREMISES
If during the Term the Leased Premises shall be destroyed or damaged so as to be totally unfit for occupation and use the Lessor may give notice to the Lessee determining the Term at the expiration of TWENTY EIGHT (28) DAYS from service of that notice PROVIDED THAT such determination of the Term shall be without prejudice to the Lessor's rights in respect of any antecedent breach by the Lessee of the Lessee's Covenants.
31. HOLDING OVER
If the Lessee with the consent of the Lessor shall remain in possession of the Leased Premises after the expiration of the Term then the Lessee shall so remain as a monthly tenant of the Lessor at the Rent payable immediately prior to its expiration and otheiwise subject to the Lessee's Covenants and that tenancy shall determine at the expiration of ONE (1) MONTH'S notice given by either party to the other at any time.
32. NO WARRANTY BY LESSOR
The Lessor makes no representation and gives no warranty in respect of the Leased Premises and the Lessee shall be deemed to have made and relied entirely upon its own enquiries and knowledge as to the suitability of the Leased Premises.
33. LESSOR NOT LIABLE FOR DAMAGE
The Lessor shall not be liable for any damage loss costs or expenses caused to or suffered by any person by reason of any injury or damage to the Lessee or any other person or damage to any property of the Lessee or any other person in or about the Leased Premises.
34. EXCLUSION OF PREVIOUS AGREEMENTS
The covenants and agreements contained or implied in this Lease shall comprise the entire agreement between the parties and the parties agree that no other covenants warranties or agreements in respect of the Leased Premises or otherwise shall apply to this transaction by reason of any promise oral statement representation warranty covenant or undertaking given or made by the Lessor or the Lessors' agents employees on or prior to this Lease becoming enforceable by any party.
I I
18
35. EXERCISE OF REMEDIES
35.1 The Lessor may exercise the Lessor's Remedies notwithstanding any previous neglect waiver or laches by the Lessor in respect of the Lessee's Covenants or the exercise of the Lessor's Remedies and without any proof of default and (unless expressly provided in this Lease or in any statute) without any demand or the continuance of any default.
35.2 No waiver by the Lessor of any breach of the Lessee's Covenants shall be construed as a general waiver and such waiver shall relate only to the particular breach or nonobservance in respect of which it is made.
35.3 The acceptance by the Lessor of any Rent or other monies payable under this Lease shall not alone constitute a waiver by the Lessor.
35.4 Any notice relating to any breach or non-observance of any covenant or agreement contained in or implied by this Lease to be observed and performed by the Lessee which may be given by the Lessor to the Lessee shall be prima facie evidence of such breach or non-observance unless the Lessee has within SEVEN (7) DAYS or within such other time as may be prescribed by the notice given full details of any contrary contention.
36. STATUTORY POWERS
The powers rights and discretions given to or conferred upon the Lessor under any statute shall (except to the extent inconsistent with the provisions of this Lease) be in addition to the Lessor's Remedies.
37. LESSOR MAY ACT BY AGENT
All acts and things which th,e Lessor is required to or empowered to do under this Lease may be done by the Lessor or the solicitor agent contractor or employee of the Lessor.
38. NOTICE, DEMAND OR CONSENT
38.1 Any notice demand or consent or other communication required to be given made or served under this Lease shall be in writing and signed by the Lessor or the Lessee (as the case may be) or by their respective attorneys agents or solicitors or if either party is a corporation then by an officer of the respective corporation and may be delivered or sent by certified post addressed:-
38.1.1 in the case of the Lessor to the Lessor's address specified in this Lease; or
38.1.2 in the case of the Lessee to the address of the Lessee specified in this Lease or the address of the Lessee last known to the Lessor or left in some conspicuous place upon the Leased Premises; or
38.1.3 in the case of the Guarantor (if any) to the address of the Guarantor specified in this Lease or the address of the Guarantor last known to the Lessor.
38.2 Any notice demand consent or other communication sent by post shall be deemed to have been received by the addressee at the expiration of FORTY EIGHT (48) HOURS after it shall have been posted.
J
1
19
39. MORATORIUM NOT TO APPLY
The provisions of any statute whereby the date for payment of any monies owing under this Lease may be extended or postponed or whereby any rate of interest may be reduced or whereby any other condition may be abrogated nullified postponed or otherwise affected shall not apply to limit or affect the provisions of this Lease.
40. APPLICABLE LAW
This Lease shall be governed by the law of Western Australia.
41: GUARANTEE AND INDEMNITY
In consideration of the Lessor entering into this Lease with the Lessee at the request of the Guarantor specified in the Schedule the Guarantor hereby (and if more than one jointly and severally):-
41.2 GUARANTEES payment by the Lessee of the Rent and all other monies due, owing or payable by the Lessee to the Lessor by virtue of this Lease and the observance and performance by the Lessee of every agreement, term covenant, condition or stipulation contained in this Lease;
41.3 AGREES that if any monies due, owing or payable by the Lessee to the Lessor by virtue of this Lease shall not be recoverable from the Guarantor under this Guarantee by reason of any legal limitation disability or incapacity on or of the Lessee or by reason of any avoidance of the liability of the Lessee or of any other fact or circumstance then the Guarantor shall hold the Lessor fully indemnified at all times against all loss or damage which the Lessor may suffer or incur by reason of any !imitation disability incapacity failure fact or circumstance;
41.4 FURTHER AGREES:
41.4.1 to pay all monies due, owing or payable to the Lessor by the Lessee under this Lease;
41.4.2 the liability of the Guarantor shall not be affected by:-
41.4.2.1
41.4.2.2
41.4.2.3
41.4.2.4
the granting of time or other indulgence by the Lessor to any person; or
any compounding compromise release abandonment waiver variation or omission by the Lessor in the exercise of the Lessor's rights or by any extension or assignment of the Term or this Lease; or
the avoidance of any payment by the Lessee or the Guarantor to the Lessor; or
any other dealing, matter or thing whether with the knowledge or consent of the Guarantor or not and which but for this provision operates to affect the liability of the Guarantor;
41.4. 3 this Guarantee is an irrevocable and continuing Guarantee and shall remain in effect for the benefit of the Lessor in respect of all liabilities of the Lessee arising from this Lease both before and after the determination of the Term;
41.4.4 all benefits or monies received by the Lessor from or on account of the Lessee
20
capable of being applied by the Lessor in reduction of any money owing to the Lessor shall be taken and applied by the Lessor as payment in gross without any right of the Guarantor to claim any benefit from any monies so received by the Lessor;
41.4.5 upon liquidation or bankruptcy of the Guarantor the Lessor shall be entitled to prove for the total indebtedness of the Lessee under this Lease for the duration of the Term notwithstanding that the Rent or other monies payable by the Lessee to the Lessor under this Lease are not due and payable at the date of the liquidation or bankruptcy of the Guarantor;
41.4.6 the indemnity given in this clause by the Guarantor shall be a principal obligation and may be enforced against the Guarantor without any responsibility on the part of the Lessor to proceed against the Lessee or any other person;
41.4. 7 upon liquidation or bankruptcy of the Lessee the Guarantor will not prove in competition with the Lessor and the Guarantor authorises the Lessor to prove for all monies which the Guarantor has paid under this Lease and retain or to appropriate at the discretion of the Lessor any amount received by the Lessor;
41.4.8 to give effect to this Lease the Guarantor waives in favour of the Lessor all rights of the Guarantor against the Lessee;
41.4.9 the liabilities of the Guarantor created by this clause 41 shall not be affected by reason of any security taken by the Lessor being or becoming void or defective;
41.4.10 the transfer of the Land shall not affect the Guarantor's obligations under this guarantee and indemnity and that in the event of and upon the transfer of the Land at any time after this Lease is entered into the benefit of the Guarantor's obligations in this clause 41 shall be automatically assigned and transferred to the registered proprietor of the Land from time to time who will be entitled to the benefit of and to enforce the provisions of this guarantee against the Guarantor as if the registered proprietor of the Land were named as the Lessor in this Lease; and
41.4.11 in the event of any part of this Lease being severed in accordance with the provisions of or in that behalf contained or implied in this Lease then the Guarantor shall no.t be entitled to rely on or claim the benefit of any severance.
42. SEVERABILITY
If any part of this Lease is or becomes void or unenforceable then that part shall be severed from this Lease to the intent that all parts of this Lease that shall not be or become void or unenforceable shall remain in full force and effect and be unaffected by any severance.
43. EFFECT OF EXECUTION
This Lease shall be binding upon each person who has executed it notwithstanding:-
43.1 the failure of any other person named as a party to execute it;
43.2 the avoidance or unenforceability of any part of this Lease; or
43.3 the avoidance or unenforceability of this Lease or any part of this Lease against any signatory or intended signatory.
J
)
)
)
)
21
44. SPECIAL TERMS
This Lease is, in addition to the provisions hereof, also subject to the other provisions (if any) specified in the Schedule ("Special Terms") and in the event of there arising any inconsistencies between the provisions of this Lease and the Special Terms, the Special Terms shall prevail.
45. DEFINITIONS AND MEANINGS
45.1 The expression "Lessor" in this Lease shall if one person is Lessor include the Lessor and the executor administrator successor in title and transferee of the Lessor and where more than one person is so specified then the Lessor shall mean the Lessor and each of them and their and each of their executors, administrators, successors in title and transferees and if the Lessor is a corporation then the Lessor shall include the Lessor and the successors in title and transferees of the Lessor but the Lessor named and described in this Lease as the Lessor ("the Original Lessor") enters into this Lease to the intent to bind the Original Lessor and the registered proprietor of the Land from time to time PROVIDED THAT the Original Lessor shall not be liable to the Lessee for damages for breach of covenant or in any other manner under this Lease except while the Original Lessor remains the registered proprietor of the Land.
45.2 The expression "Lessee" in this Lease shall if one person is specified as the Lessee include the Lessee and the executor, administrator, permitted successors in title and transferees of the Lessee and where more than one person is so specified then the Lessee shall mean the Lessee and each of them and their and each of their executors, administrators, permitted successors in title and transferees and if the Lessee is a corporation then the Lessee shall include the Lessee and the permitted successors in title and transferees of the Lessee.
45.3 The word "corporation" shall include all bodies corporate or incorporated associations and the word "person" shall include "corporation".
45.4 Where two or more persons are parties to this Lease the covenants on their part shall bind and be observed and performed by them jointly and each of them severally.
45.5 References to any statute shall include all amendments for the time being in force and any other statute enacted in substitution for and the regulations by-laws rules or orders for the time being made under that statute.
45.6 Except for any headings in the Schedule, headings of clauses shall not affect the interpretation of this Lease.
45. 7 References to the whole of any matter or thing shall, as the case may be, include references to part of any such matter or thing and vice versa.
45.8 Unless repugnant to the context or subject matter the following words or terms in this Lease shall have the following meanings:-
"Building" - the Building specified in the Schedule and the land appurtenant thereto the whole of which is the subject of the Strata Plan;
"Business" - the business trade or calling specified in the Schedule as belonging to or owned by the Lessor;
"Chattels" - the Chattels (if any) specified in the Schedule and belonging to or owned by the Lessor;
"Commencement Date" - the Commencement Date specified in the Schedule;
l J
j
22
"Common Parts" - the part or parts of the Building set aside by the Strata Company as an area open to tenants or occupiers of the Building and/or the public and those parts of the Building approved by the Strata Company from time to time for common use by the occupants of the Building and including (but without limiting the generality of the foregoing) the entrances lobbies passageways toilets and other common amenities and conveniences;
"Market Rent" - the highest annual Rent that can be reasonably obtained for the Leased Premises:-
(i) assuming that the Leased Premises are available for leasing for a term equal to the Term of this Lease and any additional options for renewal and disregarding the fact that at the relevant Rent Review Date part of the Term will have elapsed;
(ii) 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 that Rent Review Date;
(iii) having regard to the current market rental values of comparable premises in the Perth Metropolitan Area;
(iv) making no reduction on account of any period of rental abatement, financial contribution, rent free concessions or any reduction, concession or inducement otherwise required or likely to be required to secure a new lessee of the Leased Premises or any other comparable premises or any actual period of rent abatement reduction or other concession or inducement of any kind granted to the Lessee to secure the tenancy the subject of this Lease;
(v) if at the Rent Review Date the Leased Premises or the Building of which the Leased Premises forms part have been damaged or destroyed in whole or in part assuming that the Leased Premises and the Building have been reinstated;
(vi) assuming that the Leased Premises may be used for their highest and best use without reference to any limitation of use imposed by this Lease;
but disregarding:-
(vii) any increase or decrease in the value of the Leased Premises as lettable premises by reason of the occupancy or use of the same by the Lessee or any sub-lessee, assignee, transferee or concessionaire of the Lessee or any other person deriving an interest in the Leased Premises through the Lessee;
(viii) any goodwill attached to the Leased Premises by reason of the carrying on at the Leased Premises or any portion thereof of the business of the Lessee or any of the other persons referred to in paragraph (vii);
(ix) any deleterious condition of the Leased Premises if such condition results from any work carried out on the Leased Premises by the Lessee or by any breach of any provision of this Lease by the Lessee; and
(x) 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 structural improvements installed at the Lessee's expense the removal and restoration of which at the expiration of this Lease is within the discretion of the Lessor;
23
"Final Lease Year" - the period commencing from the last 1st day of July during the Term to midnight on the date of expiry of the Term;
"First Option Term" - the term (if any) specified in the Schedule as the First Option Term;
"GST" - a tax in the nature of a supply and goods and services tax levied or imposed by the Commonwealth of Australia;
"Guarantor" - (if any) - if one person is Guarantor includes the Guarantor and the executor or administrator thereof and where more than one person is so specified then shall mean them and each of them and their and each of their executors or administrators;
"Leased Premises" -
(i) the premises specified in the Schedule as the "Leased Premises" including all doors windows and shop fronts and extending to the internal surfaces of the ceiling floors and walls of that part of the Building of which the Leased Premises forms part;
(ii) the Lessor's fixtures and fittings and all additions to, modifications of and replacements for the time being thereto and such other of those items (if any) specified in the Schedule; and
(iii) the benefit of the rights and subject to the encumbrances specified on the title to the Land and the other rights exceptions and reservations (if any) specified in the Schedule;
"Lease Year" - each twelve month period commencing on the 1st day of July and expiring on the 30th day of June in the following year during the Term;
"Lessee's Covenants" - all or any of the covenants and agreements contained in or implied by this Lease to be observed and performed by any person other than the Lessor;
"Lessor's Remedies" - all or any of the rights powers and remedies contained or implied in this Lease exercisable by the Lessor against any person or in respect of the Leased Premises;
"Local or Public Authority" - includes Municipal Council, Health Board, Health Commissioner, the Minister for Water Resources, the State Planning Commission, the licensing authority under the Liquor Licensing Act 1988 and every and any other Board, Court, person or authority whatsoever now or hereinafter exercising under any present or future Act of Parliament (Federal or State) any control or jurisdiction over or power in connection with the Leased Premises or any part thereof and/or the owner or occupier thereof and/or in connection with any business now or hereafter carried on upon the Leased Premises and every officer or person acting under the authority of any such local or public authority or under the authority of any such Act or By-Law thereunder;
"Preliminary Period" - the period commencing at midnight on the day immediately preceding the date of commencement of the Term and expiring on the 30th day of June next following that date;
"Rent" - the rent specified in the Schedule and as varied in accordance with this Lease;
I J
I _l
"Rent Review Date" - the dates from which a new Rent is to be payable as specified in this Lease and/or in the Schedule;
"Rent Review Period" - the periods between Rent Review Dates and the period between the Commencement Date and the First Rent Review Date;
"Schedule" - the schedule to this Lease;
"Second Option Term" - the term (if any) specified in the Schedule as the Second Option Term;
"Strata Company" - the strata company constituted under section 32 of the Strata Titles Act 1985 and its successors;
"Strata Company Outgoings" - all those costs, charges, expenses and other monies billed either to the Strata Company or to those persons being the owners of all of the lots on the Strata Plan as outlined below:-
(i) all costs and expenses in connection with the insurance of the Building and of any property fixtures or fittings therein against loss or damage caused by fire, storm, earthquake, lightning, civil commotion, impact and all other risks as the Lessor or the Strata Company in their absolute discretion shall determine together with insurance against breakdown or malfunction of airconditioning and lifts (if any) and all other equipment serving the same, loss of rent, architects' fees for re-building, removal of debris and any other risks (including without limiting the generality of the foregoing public liability) the Lessor or the Strata Company may wish to insure against;
(ii) those rates and taxes specified in clause 3 assessed, imposed, charged or levied in respect of al! of the land the subject of the Strata Plan and which are not otherwise directly assessed, imposed, charged or levied against the Leased Premises or the strata lot or lots of which the Leased Premises forms part or whole (as the case may be);
(iii) all costs charges and expenses of cleaning of and rubbish and waste disposal from the Building and the Common Parts and the costs and expenses of repairs and maintenance to or renovation and painting of the Building and the maintenance of all property fixtures and fittings therein but excluding work which is the sole responsibility of any lessee or occupant thereof;
(iv) all costs charges and expenses for water, gas, oil, fuel, lighting and electricity, telephone, sewerage, drainage, toiletries, towels, sanitary napkins and other consumables, services or requirements furnished or supplied to the Common Parts or consumed in respect of the Common Parts for the general benefit or purposes of the lessees and other occupants or users of the Building;
(v) all costs of and associated with the collection of rents, management, control, security and administration of the Building (including without limiting the generality of the foregoing, fees paid to the Strata Company's managing agents);
(vi)
(vii)
all and any "excess" payments made by the Strata Company to the Strata Company's insurers or contributions made by the Lessor to the Strata Company's insurers in respect of claims made on insurance policies taken out by the Strata Company in respect of the Building;
all costs charges and expenses of operating servicing repairing and maintaining all services from time to time provided by the Lessor for the Lessee and other
l J
Date
The
Lessor
25
occupants and users of the Building including, without limiting the generality of the foregoing, the costs of fully comprehensive service and maintenance contracts (which shall provide for the free replacement of any defective parts) on and in respect of all airconditioning plant, lifts, machinery, fire sprinkler systems and or other fire prevention equipment installed in or relating to the Building, and the cost of maintaining and repairing car parking areas;
(viii) all costs of and associated with controlling pests rodents and vermin in and around the Building (including, without limiting the generality of the foregoing, any service contracts with pest control firms);
(ix) all costs of gardening, landscaping (including the hiring of plants) and reticulation expenses relating to the Common Parts); and
(x) any other expenditure reasonably and properly incurred or required to be incurred by the Strata Company or the Lessor in the operation and promotion of the Building or other improvements or the Common Parts and any additions thereto;
"Strata Plan" - the Strata Plan specified in the Schedule and registered or to be registered pursuant to the provisions of the Strata Titles Act 1985 showing, inter alia, the Building thereon, the Common Parts and each strata lot including the Leased Premises and any future amendments;
"Term" - the term commencing on the Commencement Date and expiring on the Expiry Date specified in the Schedule and, where the context permits, any renewal or extension thereof.
"Third Option Term" - the term (if any) specified in the Schedule as the Third Option Term.
SCHEDULE
day of 2016.
GIOVANNI VALENTE and HELAN VALENTE both of care of PO Box 2388, Kardinya, Western Australia.
Lessee
ENVIROCLEAN (VICTORIA} PTY LTD (ACN 144 794 347 of 97 Hampton Street, Bridgetown, Western Australia.
I J
I
I
26
Guarantor
MICHAEL GRAEME GENDERS of 31 Fontana Road, Margaret River, Western Australia and JAMES ARTHUR RICHARDS of 40A Glenelg Street, Applecross, Western Australia.
Building
All that the building known as 125-127 Barrington Street, Bibra Lake, Western Australia.
Strata Plan
Strata Plan 437 43.
Leased Premises
Lot 6 on Strata Plan 437 43 and being the whole of the land comprised in Certificate of Title Volume 2543 Folio 423 and having an area of approximately 393m2 and being the area shaded green on the Plan attached to this Lease for identification purposes only.
Other Items Forming Part of Definition of Leased Premises
Not applicable
Rights
The rights in common with the Lessor and all other tenants of the Building and the agents, servants, customers and visitors of all such persons to use the Common Parts from time to time subject however to the provisions of this Lease PROVIDED HOWEVER THAT the Common Parts shall at all times be subject to the control of the Strata Company.
Exceptions and Reservations
The right for the Strata Company at any time and from time to time in relation to the land the subject of the Strata Plan to:-
(a) construct, maintain and operate lighting facilities;
(b) police the Common Parts;
(c) change the area, level, location and arrangement of the Common Parts;
(d) restrict parking by Lessees their agents and employees in respect of the whole or any part of any parking area;
(e) close all or any of tlie Common Parts to such extent as may in the opinion of the Lessor be legally sufficient to prevent a dedication thereof or the accrual of any rights to any person or the public therein;
(f)
(g)
close temporarily all or any portion of the Common Parts for the purpose of building, reconstruction, repairs or like purposes;
impose and charge fees against users of parking areas
l 27
and subject to this Lease do all such other things as are consonant with ownership and control of the Strata Plan.
Chattels
Nil
Term
Two (2) years.
Commencement Date: The 1st day of October 2016.
Expiry Date: The 30th day of September 2018.
Rent
Twenty six thousand four hundred dollars ($26,400.00) per annum inclusive of outgoings but exclusive of GST.
Instalments of Rent and Times for Payment
By equal and consecutive monthly instalments of two thousand two hundr.ed dollars ($2,200.00) inclusive of outgoings but exclusive of GST, all of which Rent and outgoings and GST are payable monthly in advance on the first day of each and every month during the Term with the first such instalment being due and payable on or before the 1st day of October 2016.
Rent Review Period
Each and every twelve (12) months during the Term and any extensions thereof.
Rent Review Dates
1. First Non-Market Rent Review Date: The 1st day of October, 2017
2. In the event that the Lessee exercises the option to renew the Lease for the First Option Term or otherwise holds over then the Rent shall be reviewed on the following Rent Review Dates:
First Market Rent Review Date:
Second Non-Market Rent Review Date:
The 1st day of October, 2018.
The 1st day of October, 2019.
3. In the event that the Lessee exercises the option to renew the Lease for the Second Option Term or otherwise holds over then the Rent shall be reviewed on the following Rent Review Dates:
Second Market Rent Review Date:
Third Non-Market Rent Review Date:
The 1st day of October, 2020.
The 1st day of October, 2021.
l I
28
4. In the event that the Lessee exercises the option to renew the Lease for the Third Option Term or otherwise holds over then the Rent shall be reviewed on the following Rent Review Dates:
Third Market Rent Review Date; The 1st day of October, 2022.
The 1st day of October, 2023. Fourth Non-Market Rent Review Date:
First Option Term
A term of two (2) years commencing on the 1st day of October, 2018 and expiring on the 301h day of September 2020.
Second Option Term
A term of two (2) years commencing on the 1st day of October 2020 and expiring on the 30th day of September 2022.
Third Option Term
A term of two (2) years commencing on the 1st day of October 2022 and expiring on the 301h day of September 2024. ·
Business
Warehousing//Workshop for parts washers.
Painting Stipulation
No contrary stipulation.
Special Terms
1. Notwithstanding the provisions of:
(a)
(b)
clause 4.2 the Lessee acknowledges that the Strata Company may, in its discretion, apportion so much of the Strata Company Outgoings as relate to the consumption of water (and any other non-separately metered services provided by local or public authorities) between the Lessor and other owners of the Building on the basis of estimated consumption thereof by the same or their occupants and the Lessee agrees with the Lessor that the Lessee shall pay the Lessee's contribution thereto on such basis to the Lessor or as the Lessor directs rather than on the basis of apportionment specified in clause 4.1 aforesaid; and
clause 4.1 and clause 4.3 the Lessor may require that and the Lessee shall pay to the Lessor, or as the Lessor shall direct, all or part of the contributions levied by the Strata Company or the Lessee's Percentage share of estimated Strata Company Outgoings within fourteen (14) days or such other periods of time specified in writing by the Lessor after accounts, invoices, assessments or notices for payment of the same are received by the Lessee.
2. The Lessee acknowledges that where under this Lease the Lessor accepts an obligation to do or perform some act or refrain from doing something and the thing to be done or
29
the act to be performed or the thing not to be done is a thing or act which is more properly an obligation of the Strata Company then the extent of the Lessor's obligation will be limited only to a requirement to properly vote the Lessor's unit entitlement or share at the relevant meeting of the Strata Company at which the thing to be done or not done or the act to be performed or not performed is to be discussed and voted upon.
3. The Lessee covenants and agrees to pay all and any managing agent fees which may relate to the Leased Premises.
4. Any hardstand is to remain as Common Areas.
5. The Lessee covenants and agrees to maintain and regularly service the alarm system, air-conditioner and fire equipment and to regularly have the Leased Premises treated for termites.
6. Contamination
6.1 The Lessee shall not contaminate the Leased Premises or the land on which the Leased Premises or building are situate ("Land") or any nearby land whether above or below ground and including any surface water or groundwater. The Lessee shall also take such steps and conduct its business on the Leased Premises in such a manner as to not cause any contamination to the Leased Premises or the Land or any nearby land. For the purposes of this clause "contamination" means the presence of any substance in or on that land, water or site at above background concentrations that presents, or has the potential to present, a risk of harm to human health, the environment or any environmental value.
6.2 The Lessee must immediately notify the Lessor of any incident that may result in contamination or potential contamination of the Leased Premises or its surrounds and provide the Lessor with full particulars thereof, including the nature and extent of such contamination and how it was caused.
6.3 Upon the giving of reasonable notice to the Lessee, and using its best endeavors to cause minimum interference to the operation of the Lessee's business operation the Lessor shall be entitled to enter the Leased Premises or the Land or any nearby land for the purposes of ascertaining whether any contamination has taken place, and if so, its nature and extent thereof and without limiting the generality of the foregoing the Lessor shall be entitled to conduct such tests as are necessary including taking water and soil samples, drilling holes and taking any other such remedial action as it considers necessary.
6.4 In the event of any contamination to the Leased Premises or the Land or any nearby land having been caused by, or which is reasonably likely to have been caused by, the Lessee or the Lessees use of the Leased Premises, then the Lessee shall do all such things necessary to remediate the contamination in accordance with the Western Australia Department of Environment and Conservation ("DEC") Contaminated Sites Management Series (Dec 2001) Guidelines (as amended, substituted or replaced) ("Guidelines") or the contamination risk and restoring the site to the environmental state it was in before the contamination occurred.
6.5 In the event that the Lessee or the Lessees use of the Land causes contamination of the Leased Premises or the Land or any nearby land, the cost of the remediation will be borne by the Lessee and the Lessee shall reimburse
I I !
I 6.6
30
all costs, losses or damage incurred by the Lessor in respect of remediating the contamination to the satisfaction of the DEC, including but not limited to legal costs and costs associated with remediating the site and causing the removal of any encumbrances placed on and/or restriction placed on the use of, the Land ..
In the event the Leased Premises or the Land or any nearby land are classified under the Contaminated Sites Act 2003 (as amended, substituted or replaced) and any associated regulations and guidelines (including but not limited to the Guidelines) ("the Act") as either:
'contaminated- remediation required';
'contaminated-restricted use';
'remediated for restricted use';
'possibly contaminated-investigation required', or
otherwise under the Act or substitute or similar legislation
whether or not a memorial has also been placed on the title to the Land or any nearby land by DEC or other relevant body, then the Lessee shall at its own cost do all things necessary and as reasonably directed by the Lessor to facilitate the removal of such memorial from the title to the Leased Premises, Land or any nearby land and to have the Leased Premises, the Land or any nearby land reclassified to either:
'not contaminated-unrestricted use'; or
'decontaminated'.
6. 7 The Lessee must do all such things necessary to comply with the Act and to facilitate compliance with the Act by the Lessor, and the Lessee must in all respects cooperate and assist the Lessor with any appeal by the Lessor against a site classification in relation to the Leased Premises, Land or any nearby land or an approval by the Lessor against any other decision or finding made under the Act.
6.8 In the event of any contamination to the Leased Premises, Land or any nearby land caused by or contributed to by, or reasonably likely to have been caused by or contributed to by, the Lessee or the Lessees use of the Leased Premises then the Lessee agrees to indemnify the Lessor against any liability, loss or damage cost or expense suffered by the Lessor pursuant to the Act or otherwise including but not limited to clean-up costs, loss of rent or reduction in capital value of the Leased Premises, Land or any nearby land and all legal and associated costs of the Lessor relating to the event of contamination.
7. Lessee's Liability for Increase in Outgoings
In addition to the payment of the Rent and Outgoings as specified in the Schedule and as varied from year-to-year, the Lessee shall also be liable for and shall pay to the Lessor upon demand during the Term and any renewal or extension thereof the amount of any increase in the Strata Company Outgoings and any other rates and taxes from the Commencement Date.
I I
31
8. Sea Containers
The Lessee shall not store or bring any sea containers onto the Leased Premises that have a length exceeding six metres (6m).
EXECUTED AS A DEED
LESSORS:
SIGNED by the said GIOVANNI VALENTE in the presence of: Giovanni Valente
Witness: ~ ,;;;_ ~· · 1
Name: AV\l'\Veo. ~'ln t-'
Address: 55 \.....{ Sbv..ef 'l>: ~'<C!\l\Jo,
Occupation: A. G i.-l.0vV'tC\V\ f
SIGNED by the said HELAN VALENTE in the presence of:
) ) ) Helan Valente
Witness: f ,,,;:::.._ - · Name:
Address:
Occupation:
LESSEE:
EXECUTED by ENVIROCLEAN (VICTORIA) PTY LTD (ACN 144 794 347) in accordance with section 127 of the Corporations Act 2001
v . /~ /\ .· . Mihaeel11eGel1der
Director ames Arthur Richards
Director
I 1
J
l
!
l j
GUARANTORS:
SIGNED by the said MICHAEL GRAEME GENDERS in the presence of:
Witness:
) ) )
Name: .TH¢\ Lt f\ llN•\.I
Michael Graeme Genders
Address: 1-f'M lJJf!-A D~1 I/ft Cft'-( 6eACH 'tJA &01 S'
Occupation: Horne ·RA..·-t le S.
SIGNED by the said JAMES ARTHUR RICHARDS in the presence of:
Witness:
Name:
Address:
Occupation:
) ) )
32
Nore..:
Nor ro scALi
Enviroclean Victoria Pty Ltd
Additional Information
17th January 2017
The waste solvent to be distilled is Narrow Cut Kerosene commonly known as degreaser.
We will be sourcing the waste solvent from our parts washers which we service. The parts washers
are serviced in situ at our customer’s workshops and the waste solvent will be transported by a
service truck in a vacuum tank and transferred into bulky bins.
The distiller sucks the waste solvent into the heating tank which is heated by hot water passing
through a coil, as it evaporates under a full vacuum it travels through a wet vacuum pump to bring it
back to a fluid.
The waste from the distilling process is mainly oil which is dropped out of the bottom of the heating
tank when the vacuum pump is turned off. The waste oil is taken by a recycler, such as Wren Oils,
and any solid waste to a processor such as ToxFree.
There will be a approximately 2000 – 3000 litres of waste solvent stored on the premises at any one
time as the distiller will only operate for 3 or 4 days a month.
The waste will be stored in bulky bins.