Exhibit 10.2


 


Annexure A


 


Chester Hill Lease


 


Annexure to Asset Sale Agreement


 





















 


	
  Form:

  	
   

  	
  07L

  	
   

  	
  LEASE

  	
   

  	
  Leave this space clear. Affix additional

  
	
  Licence:

  	
   

  	
  03-09-102

  	
   

  	
  New South Wales

  	
   

  	
  pages to the top left-hand corner.

  
	
  Licensee:

  	
   

  	
  Minter Ellison

  	
   

  	
  Real Property Act 1900

  	
   

  	
   

  



 


PRIVACY NOTE: Section 31B of the Real Property Act 1900 (RP Act)
authorises the Registrar General to collect the information required by this
form for the establishment and maintenance of the Real Property Act
Register.  Section 96B RP Act requires
that the Register is made available to any person for search upon payment of a
fee, if any.


 


	
  STAMP DUTY

  	
   

  	
  Office of State Revenue use only

  
	
   

  	
   

  	
  

  



  
	
  (A) TORRENS TITLE

  	
   

  	
  Property leased: if appropriate, specify the part or
  premises

  Certificate(s) of Title folio identifier 1/700896

  
	
   

  	
   

  	
  

  



  
	
  (B) LODGED BY

  	
   

  	
  Delivery

  	
   

  	
  Name, Address or DX and Telephone

  	
   

  	
   

  	
   

  	
  CODE

  
	
   

  	
   

  	
  Box

  	
   

  	
  LLPN: 123438 S

  	
   

  	
  MINTER ELLISON

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  88 Phillip Street, SYDNEY

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Telephone (02) 9921 8888

  	
   

  	
   

  
	
   

  	
   

  	
  599D

  	
   

  	
  Reference (optional): JDO

  	
   

  	
   

  	
   

  	
  L

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (C) LESSOR

  	
   

  	
  AEP INDUSTRIES (AUSTRALIA) PTY LTD ABN 60 075
  939 614

  
	
   

  	
   

  	
  

  



  
	
   

  	
   

  	
  The lessor leases to the lessee the property referred
  to above.

  
	
   

  	
   

  	
   

  
	
  (D)

  	
   

  	
  Encumbrances (if applicable): 1.
                                   2.
                           
  3.                               

  
	
   

  	
   

  	
   

  
	
  (E) LESSEE

  	
   

  	
  FLEXIBLE PACKAGING OPERATIONS AUSTRALIA PTY
  LIMITED ACN 113 833 748

  
	
   

  	
   

  	
  

  



  
	
  (F)

  	
   

  	
  TENANCY:

  



 


	
  (G) 1.

  	
   

  	
  TERM:        1
  year

  
	
  2.

  	
   

  	
  COMMENCING DATE:
         #  
  May 2005

  
	
  3.

  	
   

  	
  TERMINATING DATE:
         #  
  May 2006

  
	
  4.

  	
   

  	
  With 3 OPTIONS TO RENEW for
  a period of 5 years each set out in clause 19

  
	
  5.

  	
   

  	
  With an OPTION TO PURCHASE set
  out in N.A.

  
	
  6.

  	
   

  	
  Together with and reserving the RIGHTS set
  out in N.A.

  
	
  7.

  	
   

  	
  Incorporates the provisions or additional material
  set out in ANNEXURE(S) A hereto.

  
	
  8.

  	
   

  	
  Incorporates the provisions set out in MEMORANDUM filed / LEASE
  registered in the Department of Lands, Land and Property Information Division
  as No. N.A

  
	
  9.

  	
   

  	
  The RENT is set
  out in clause 2 of Annexure A

  



 


Minter Ellison Ref: JDO 20-4721403


 


ALL HANDWRITING MUST BE IN BLOCK CAPITALS


 


1





















 


	
  DATE:

  	
   

  	
  /

  	
   

  	
   

  	
  /

  	
   

  	
   

  	
   

  
	
   

  	
  dd

  	
   

  	
  mm

  	
   

  	
   

  	
  yyyy

  



 


(H)          Certified
correct for the purposes of the Real Property Act 1900 and executed on behalf
of the corporation named below by the authorised person(s) whose signature(s)
appear(s) below pursuant to the authority specified.


 


	
  Corporation

  	
  AEP INDUSTRIES (AUSTRALIA) PTY LTD

  
	
  Authority

  	
  section 127 of the Corporations
  Act 2001 (Cth

  



 


	
   

  	
   

  	
   

  
	
  Signature of authorised person

  	
   

  	
  Signature of authorised person

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name of authorised person

  	
   

  	
  Name of authorised person

  
	
   

  	
   

  	
   

  
	
  Director

  	
   

  	
  Director/Secretary

  
	
  Office held

  	
   

  	
  Office held

  



 


Certified correct for the purposes of the Real
Property Act 1900 and executed on behalf of the corporation named below by the
authorised person(s) whose signature(s) appear(s) below pursuant to the
authority specified.


 


	
  Corporation

  	
  FLEXIBLE PACKAGING OPERATIONS AUSTRALIA PTY
  LIMITED ACN 113 833 748

  
	
  Authority

  	
  section 127 of the Corporations
  Act 2001 (Cth)

  



 


	
   

  	
   

  	
   

  
	
  Signature of authorised person

  	
   

  	
  Signature of authorised person

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name of authorised person

  	
   

  	
  Name of authorised person

  
	
   

  	
   

  	
   

  
	
  Director

  	
   

  	
  Director/Secretary

  
	
  Office held

  	
   

  	
  Office held

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Note: where applicable, the
  lessor must complete the statutory declaration below.

  



 


(I)            STATUTORY DECLARATION*


 


I


 


solemnly and sincerely declare that-


 


1.             The time
for the exercise of option to renew in expired lease No.
                                        
has ended;


 


2.             The
lessee under that lease has not exercised the option.


 


I make this solemn declaration conscientiously
believing the same to be true and by virtue of the Oaths Act 1900.


 


Made and subscribed at
                                        
in the State of New South Wales on


 


in the presence of-


 


	
  Signature of witness:

  	
  Signature of lessor:

  



 


 


Name of witness:


 


 


Address of witness:


 


 


Qualification of witness: Justice of the Peace


 










*              As
the Department of Lands may not be able to provide the services of a justice of
the peace or other qualified witness, the statutory declaration should be
signed and witnessed prior to lodgment of the form at Land and Property
Information Division.


 


Minter Ellison Ref: JDO 20-4721403


 


ALL HANDWRITING MUST BE IN BLOCK CAPITALS


 


2





















 


Annexure A - Lease


 


	
  Information
  table

  	
  7

  
	
   

  	
   

  
	
  Agreed terms

  	
  10

  
	
   

  	
   

  
	
  1.

  	
  Defined terms
  & interpretation

  	
  10

  
	
  1.1

  	
  Defined terms

  	
  10

  
	
  1.2

  	
  Interpretation

  	
  13

  
	
  1.3

  	
  Headings

  	
  14

  
	
  1.4

  	
  Governing
  law and jurisdiction

  	
  14

  
	
   

  	
   

  	
   

  
	
  2.

  	
  Rent

  	
  14

  
	
  2.1

  	
  Tenant
  to pay

  	
  14

  
	
  2.2

  	
  Instalments

  	
  14

  
	
   

  	
   

  	
   

  
	
  3.

  	
  Outgoings

  	
  14

  
	
  3.1

  	
  Tenant
  to pay Tenant’s Contribution

  	
  14

  
	
  3.2

  	
  Outgoings
  Budget

  	
  14

  
	
  3.3

  	
  Content
  of Outgoings Budget

  	
  14

  
	
  3.4

  	
  Landlord’s
  right to vary the Outgoings Budget

  	
  14

  
	
  3.5

  	
  Payment
  by instalments

  	
  14

  
	
  3.6

  	
  Delayed
  budget

  	
  15

  
	
  3.7

  	
  Statement
  of actual Outgoings

  	
  15

  
	
  3.8

  	
  Reconciliation
  during the Term

  	
  15

  
	
  3.9

  	
  Reconciliation
  after the Term

  	
  15

  
	
   

  	
   

  	
   

  
	
  4.

  	
  Payment for Services

  	
  16

  
	
  4.1

  	
  Direct
  charges

  	
  16

  
	
   

  	
   

  	
   

  
	
  5.

  	
  Costs

  	
  16

  
	
  5.1

  	
  Costs
  and expenses

  	
  16

  
	
  5.2

  	
  Stamp
  duty and registration fees

  	
  17

  
	
   

  	
   

  	
   

  
	
  6.

  	
  Payment conditions

  	
  17

  
	
  6.1

  	
  Payments

  	
  17

  
	
  6.2

  	
  Interest

  	
  17

  
	
   

  	
   

  	
   

  
	
  7.

  	
  GST

  	
  17

  
	
  7.1

  	
  Interpretation

  	
  17

  
	
  7.2

  	
  Tenant’s
  obligations

  	
  17

  
	
  7.3

  	
  Net
  down

  	
  18

  
	
  7.4

  	
  Tax
  invoice

  	
  18

  
	
   

  	
   

  	
   

  
	
  8.

  	
  Bank
  Guarantee

  	
  18

  
	
  8.1

  	
  Tenant
  to give

  	
  18

  
	
  8.2

  	
  Demanding
  payment

  	
  18

  
	
  8.3

  	
  Top
  up

  	
  18

  
	
  8.4

  	
  Assignment

  	
  18

  
	
  8.5

  	
  Replacement
  Bank Guarantee

  	
  18

  
	
  8.6

  	
  Return to Tenant

  	
  19

  



 


3





















 


	
  9.

  	
  Insurance

  	
  19

  
	
  9.1

  	
  Public liability

  	
  19

  
	
  9.2

  	
  Policies

  	
  19

  
	
  9.3

  	
  Evidence of
  insurance

  	
  19

  
	
  9.4

  	
  Notification

  	
  19

  
	
  9.5

  	
  Dealing with
  insurance

  	
  19

  
	
  9.6

  	
  Extra costs

  	
  20

  
	
   

  	
   

  	
   

  
	
  10.

  	
  Indemnities and releases

  	
  20

  
	
  10.1

  	
  Tenant’s risk

  	
  20

  
	
  10.2

  	
  Indemnity

  	
  20

  
	
  10.3

  	
  Release

  	
  20

  
	
  10.4

  	
  No merger

  	
  20

  
	
   

  	
   

  	
   

  
	
  11.

  	
  Repair,
  maintenance & alterations

  	
  20

  
	
  11.1

  	
  Repair and replace

  	
  20

  
	
  11.2

  	
  Tenant’s works

  	
  21

  
	
   

  	
   

  	
   

  
	
  12.

  	
  Principal Contractor

  	
  21

  
	
  12.1

  	
  Tenant’s
  appointment

  	
  21

  
	
  12.2

  	
  Tenant’s
  obligations

  	
  22

  
	
  12.3

  	
  Landlord’s
  discretion

  	
  22

  
	
  12.4

  	
  Tenant’s
  contractor

  	
  22

  
	
   

  	
   

  	
   

  
	
  13.

  	
  Cleaning

  	
  22

  
	
  13.1

  	
  Tenant to provide

  	
  22

  
	
  13.2

  	
  Tenant’s cleaning obligations

  	
  22

  
	
   

  	
   

  	
   

  
	
  14.

  	
  Tenant’s rights

  	
  22

  
	
  14.1

  	
  Quiet
  enjoyment

  	
  22

  
	
   

  	
   

  	
   

  
	
  15.

  	
  Tenant’s obligations

  	
  22

  
	
  15.1

  	
  Use

  	
  22

  
	
  15.2

  	
  Compliance

  	
  23

  
	
  15.3

  	
  Prohibitions

  	
  23

  
	
  15.4

  	
  Tenant’s
  Associates

  	
  23

  
	
  15.5

  	
  Hazardous
  materials

  	
  23

  
	
  15.6

  	
  Environmental
  protection

  	
  24

  
	
  15.7

  	
  Exceptions to
  clauses 15.3 and 15.5

  	
  24

  
	
   

  	
   

  	
   

  
	
  16.

  	
  Landlord’s obligations

  	
  24

  
	
  16.1

  	
  Structural integrity and Services

  	
  24

  
	
  16.2

  	
  Insurance, rates, laws

  	
  24

  
	
   

  	
   

  	
   

  
	
  17.

  	
  Landlord’s rights

  	
  25

  
	
  17.1

  	
  Works and
  Services

  	
  25

  
	
  17.2

  	
  Other rights

  	
  25

  
	
  17.3

  	
  Carry out Tenant’s obligations

  	
  26

  
	
  17.4

  	
  Landlord released

  	
  26

  
	
   

  	
   

  	
   

  
	
  18.

  	
  Assigning,
  subletting, charging

  	
  26

  
	
  18.1

  	
  Assigning

  	
  26

  
	
  18.2

  	
  Subletting

  	
  27

  
	
  18.3

  	
  Change in
  control

  	
  27

  



 


4





















 


	
  18.4

  	
  Charging Tenant’s Property

  	
  28

  
	
  18.5

  	
  No other dealings

  	
  28

  
	
   

  	
   

  	
   

  
	
  19.

  	
  Option for a new lease

  	
  28

  
	
  19.1

  	
  Conditions for grant

  	
  28

  
	
  19.2

  	
  Form of new
  lease

  	
  29

  
	
   

  	
   

  	
   

  
	
  20.

  	
  Damage and destruction

  	
  29

  
	
  20.1

  	
  Not Used

  	
  29

  
	
  20.2

  	
  Landlord’s notice

  	
  29

  
	
  20.3

  	
  Tenant’s notice

  	
  29

  
	
  20.4

  	
  Tenant may terminate

  	
  30

  
	
  20.5

  	
  Payments reduced

  	
  30

  
	
  20.6

  	
  Dispute about payments

  	
  30

  
	
  20.7

  	
  Adjustments

  	
  30

  
	
  20.8

  	
  Destruction or damage caused by Tenant

  	
  30

  
	
  20.9

  	
  Landlord need not repair

  	
  30

  
	
   

  	
   

  	
   

  
	
  21.

  	
  Holding over

  	
  30

  
	
  21.1

  	
  Monthly tenancy

  	
  30

  
	
  21.2

  	
  Terms of monthly tenancy

  	
  31

  
	
   

  	
   

  	
   

  
	
  22.

  	
  Default

  	
  31

  
	
  22.1

  	
  Tenant’s breach

  	
  31

  
	
  22.2

  	
  Statutory notice

  	
  31

  
	
  22.3

  	
  Loss of Bargain

  	
  31

  
	
  22.4

  	
  Essential terms

  	
  31

  
	
  22.5

  	
  Indemnity for default

  	
  31

  
	
   

  	
   

  	
   

  
	
  23.

  	
  Yielding up

  	
  32

  
	
  23.1

  	
  Vacating and removal of Tenant’s Property

  	
  32

  
	
  23.2

  	
  Tenant’s Property

  	
  32

  
	
  23.3

  	
  Tenant’s Property abandoned

  	
  32

  
	
  23.4

  	
  Tenant not required to make-good

  	
  32

  
	
   

  	
   

  	
   

  
	
  24.

  	
  Notices and
  other communications

  	
  32

  
	
  24.1

  	
  Service of notices

  	
  32

  
	
  24.2

  	
  Effective on receipt

  	
  32

  
	
   

  	
   

  	
   

  
	
  25.

  	
  Miscellaneous

  	
  33

  
	
  25.1

  	
  Alterations

  	
  33

  
	
  25.2

  	
  Approvals and consents

  	
  33

  
	
  25.3

  	
  Stamp duty

  	
  33

  
	
  25.4

  	
  Severability

  	
  33

  
	
  25.5

  	
  Waiver

  	
  33

  
	
  25.6

  	
  Entire agreement

  	
  33

  
	
  25.7

  	
  Statutory provisions

  	
  33

  
	
   

  	
   

  	
   

  
	
  Schedule 1 – Market
  Rent Review

  	
  34

  
	
   

  	
   

  
	
  S1.

  	
  Market reviews of
  Rent

  	
  34

  
	
   

  	
   

  	
   

  
	
  S2.

  	
  Landlord to give
  notice

  	
  34

  
	
   

  	
   

  	
   

  
	
  S3.

  	
  Essential
  qualifications of Valuer and Umpire

  	
  34

  



 


5





















 


	
  S4.

  	
  Dispute by Tenant of reviewed amount - Tenant’s
  Notice

  	
  35

  
	
   

  	
   

  	
   

  
	
  S5.

  	
  Tenant appoints Valuer and notifies Landlord - first
  appointment date

  	
  35

  
	
   

  	
   

  	
   

  
	
  S6.

  	
  Effect of Tenant’s failure to appoint or notify

  	
  35

  
	
   

  	
   

  	
   

  
	
  S7.

  	
  Landlord appoints Valuer and notifies Tenant -
  second appointment date

  	
  35

  
	
   

  	
   

  	
   

  
	
  S8

  	
  Effect of Landlord’s failure to appoint or notify

  	
  36

  
	
   

  	
   

  	
   

  
	
  S9.

  	
  Determination by Valuers

  	
  36

  
	
   

  	
   

  	
   

  
	
  S10

  	
  Determination by Umpire if Valuers do not agree

  	
  36

  
	
   

  	
   

  	
   

  
	
  S11.

  	
  Adjustment of Rent once agreed or determined

  	
  37

  
	
   

  	
   

  	
   

  
	
  S12.

  	
  Costs of Valuers and Umpire

  	
  37

  
	
   

  	
   

  	
   

  
	
  S13.

  	
  Criteria for determining the Current Rent

  	
  37

  



 


6





















 


Information table


 


Parties


 


	
  Name

  	
  AEP
  INDUSTRIES (AUSTRALIA) PTY LTD

  
	
  ABN

  	
  60 075 939
  614

  
	
  Short form name

  	
  Landlord

  
	
  Notice details

  	
  14. notice details of Landlord

  Facsimile 15.

  Attention 16.

  
	
   

  	
   

  
	
  Name

  	
  FLEXIBLE
  PACKAGING OPERATIONS AUSTRALIA PTY LIMITED

  
	
  ACN

  	
  113 833-748 

  
	
  Short form name

  	
  Tenant

  
	
  Notice details

  	
  C/- Catalyst investment
  Managers Pty Limited Level 38, Tower Building Australia Square, Sydney NSW
  2000

  Facsimile 02 92525255

  Attention John Story

  
	
   

  	
   

  
	
  Items

  	
   

  
	
   

  	
   

  
	
  Item 1

  	
  Land (clause 1)

  
	
   

  	
   

  
	
   

  	
  The land contained in
  folio identifier 1/700896 also known as 149 Orchard Road, Chester Hill, NSW 2162

  
	
   

  	
   

  
	
  Item 2

  	
  Premises (clause 1)

  
	
   

  	
   

  
	
   

  	
  The whole of the Land and
  the improvements erected on the Land

  
	
   

  	
   

  
	
  Item 3

  	
  Term (clause 1)

  
	
   

  	
   

  
	
   

  	
  1 year

  
	
   

  	
   

  
	
  Item 4

  	
  Commencing
  date (clause 1)

  
	
   

  	
   

  
	
   

  	
  #
  May 2005

  
	
   

  	
   

  
	
  Item 5

  	
  Terminating
  date (clause 1)

  
	
   

  	
   

  
	
   

  	
  # May 2006

  
	
   

  	
   

  
	
  Item 6

  	
  Rent (clause 1)

  
	
   

  	
   

  
	
   

  	
  From the Commencement Date
  to # May 2006 - $1,00 per annum (excluding GST)

  
	
   

  	
   

  
	
   

  	
  If a new
  tense is granted for the term specified in Item 13(1)(a), pursuant to clause
  19, then from:

  
	
   

  	
   

  
	
   

  	
  #May 2006 to # May 2007 -
  $975,000.00 per annum (excluding GST).

  
	
   

  	
   

  
	
   

  	
  # May 2007 to # May 2008 -
  103.5% of the previous rent

  



 


7





















 


	
   

  	
  # May 2008 to # May 2009 – 103.5% of the previous
  rent

  
	
   

  	
   

  
	
   

  	
  # May 2009 to it May
  2010 – 103.5% of the previous rent

  
	
   

  	
   

  
	
   

  	
  # May 2010 to # May 2011 - 103.5% of the previous
  rent

  
	
   

  	
   

  
	
   

  	
  If a new lease is granted for the
  term specified in Item 13(1)(b), pursuant to clause 19, then from:

  
	
   

  	
   

  
	
   

  	
  # May 2006 to # November 2006 - $1 per annum
  (excluding GST)

  
	
   

  	
   

  
	
   

  	
  From # November 2006 - $975,000.00 per annum
  (excluding GST)

  
	
   

  	
   

  
	
   

  	
  If a new lease is granted for the
  term specified in Item 13(2), pursuant to clause 19, then from:

  
	
   

  	
   

  
	
   

  	
  # May 2011 to # May 2012 - the amount determined
  pursuant to clause 19.2 and Schedule 1.

  
	
   

  	
   

  
	
   

  	
  # May 2012 to # May 2013 - 103.5% of the previous
  rent

  
	
   

  	
   

  
	
   

  	
  # May 2013 to # May
  2014 - 103.5% of the previous rent

  
	
   

  	
   

  
	
   

  	
  # May 2014 to # May 2015 - 103.5% of the previous
  rent

  
	
   

  	
   

  
	
   

  	
  # May 2015 to # May 2016 - 103.5% of the previous rent

  
	
   

  	
   

  
	
   

  	
  If a new lease is granted for the
  term specified in Item 13(3), pursuant to clause 19, then from:

  
	
   

  	
   

  
	
   

  	
  # May 2016 to # May 2017 - the amount determined
  pursuant to clause 19.2 and Schedule 1# May 2017 to # May 2018 - 103.5% of
  the previous rent# May 2018 to # May 2019 - 103.5% of the previous rent# May
  2019 to [# May 2020 -103.5% of the previous rent

  
	
   

  	
   

  
	
   

  	
  # May 2020 to # May 2021-103.5% of the previous rent

  
	
   

  	
   

  
	
  Item 7

  	
  Base year (clause
  1.1)

  
	
   

  	
   

  
	
   

  	
  Not applicable

  
	
   

  	
   

  
	
  Item 8

  	
  Outgoings Year (clauses
  1 and 3)

  
	
   

  	
   

  
	
   

  	
  30 June

  
	
   

  	
   

  
	
  Item 9

  	
  Bank Guarantee (clauses
  1 and 8)

  
	
   

  	
   

  
	
   

  	
  Not applicable

  
	
   

  	
   

  
	
   

  	
  In respect of the new leases specified in Item 13(1)(a),
  Item 13(2) and Item 13(3), an amount equal to 3 months’ rent and 3 months’
  Outgoings based on the Outgoings Budget (plus GST in accordance with
  clause 7).

  
	
   

  	
   

  
	
  Item 10

  	
  Option Window (clauses
  1 and 19)

  
	
   

  	
   

  
	
   

  	
  In respect of the new lease specified in Item 13(1):
  At any time on or before the Terminating Date.

  
	
   

  	
   

  
	
   

  	
  In respect of any other new lease specified in Item
  13; Not more than 6 months nor later than 3 months before the Terminating
  Date

  
	
   

  	
   

  
	
  Item 11

  	
  Permitted use (clauses
  15 and 18)

  
	
   

  	
   

  
	
   

  	
  Manufacturing and warehouse.

  



 


8





















 


	
  Item 12

  	
  Amount of public risk insurance
  (clause 9)

  
	
   

  	
   

  
	
   

  	
  $20 million

  
	
   

  	
   

  
	
  Item 13

  	
  New lease (clause 19)

  
	
   

  	
   

  
	
   

  	
  (1) First new lease

  
	
   

  	
   

  
	
   

  	
  Term – (at the Tenant’s
  election), either:

  
	
   

  	
   

  
	
   

  	
  (a) 5 years commencing on # May 2006 and terminating on # May 2011;
  or

  
	
   

  	
   

  
	
   

  	
  (b) 6 months commencing on
  # May 2006 and terminating on # November 2006

  
	
   

  	
   

  
	
   

  	
  Commencing Date - # May
  2006

  
	
   

  	
   

  
	
   

  	
  Terminating Date - (at the
  Tenant’s election), either # May
  2011 or # November 2006

  
	
   

  	
   

  
	
   

  	
  (2) Second new lease

  
	
   

  	
   

  
	
   

  	
  Term - 5 years commencing on # May 2011
  and terminating on # May 2016 

  
	
   

  	
   

  
	
   

  	
  Commencing Date - # May
  2011 

  
	
   

  	
   

  
	
   

  	
  Terminating Date - # May
  2016

  
	
   

  	
   

  
	
   

  	
  (3) Third new lease

  
	
   

  	
   

  
	
   

  	
  Term - 5 years commencing
  on # May 2016 and terminating on # May 2021

  
	
   

  	
   

  
	
   

  	
  Commencing Date - # May
  2016

  
	
   

  	
   

  
	
   

  	
  Terminating Date - # May 2021

  
	
   

  	
   

  
	
  Item 14

  	
  Statutory provisions (clause 25.7)

  
	
   

  	
   

  
	
   

  	
  The covenants, powers and provisions
  implied in leases by sections 84, 84A, 85 and 86 of the Conveyancing Act 1919 do not apply to
  this lease.

  
	
   

  	
   

  
	
   

  	
  If any of the forms of
  words in the first column of Part 2 of Schedule 4 to the Conveyancing Act 1919 are used in this lease, they
  do not imply a covenant under section 86 of that Act

  



 


9





















 


Agreed terms


 


1.             Defined terms & interpretation


 


1.1          Defined terms


 


In
this lease:


 


Asset Sale Agreement means
the agreement entered into between the Landlord, AEP Industries (NZ) Limited,
the Tenant and others (being the landlord and tenant under this lease at the
date of this lease);


 


Australian Property Institute means the division of the Australian Property
Institute Incorporated in NSW.


 


Bank Guarantee means an unconditional, irrevocable undertaking:


 


(a)           from an Australian trading bank in a form
approved by the Landlord;


 


(b)           to pay the Landlord a guaranteed amount
without notice to the Tenant;


 


(c)           with an expiry date which is no earlier than
6 months after the lease ends;


 


(d)           specifying the address of the Premises; and


 


(e)           which is expressed as being security for the
performance by the Tenant of its obligations under this lease.


 


Business Day means a day that is not a Saturday, Sunday or public holiday in the state
in which the Land is located.


 


Business Hours means from 9.00am to 5.00pm on a Business Day.


 


Claims means all liability, loss, damages, penalties, payments, costs, charges
and expenses (including reasonable legal costs and disbursements);


 


Commencing Date means the commencing date specified in Item 4.


 


Completion Date
has the meaning given in the Asset Sale Agreement.


 


Construction Work means any construction work carried out or caused to be carried out by
the Tenant on the Premises, which is the subject of the OHS Regulation.


 


Contamination has the meaning given to the term in the Environment Protection Act 1997 (NSW);


 


Environmental Legislation means the Environment
Protection and Biodiversity Conservation Act 1999 (Cth) and the Environmental Planning and Assessment Act 1979 (NSW) and
any regulations, determinations, orders or measures made pursuant to those Acts
(whether such Acts or regulations have been amended or repealed or otherwise)
and any other legislation relating to the physical condition of the Premises;


 


Environmental Liability means, in respect of the Premises, the
following losses, costs, liabilities, expenses and damages:


 


(a)           those incurred pursuant to, or in relation to, or as a consequence of:


 


(i)            any Legislative Action
concerning Contamination at, of, or emanating from, the Premises


 


10





















 


(ii)           the investigation or Remediation, pursuant to the Environmental
Legislation, of any such Contamination; or


 


(iii)          any claim in tort by any third party concerning any such Contamination;
or


 


(iv)          any agreement with any owner or occupier of land under or pursuant to
the Environmental Legislation which agreement concerns any such Contamination;
or


 


(v)           any agreement with any statutory authority under or pursuant to the Environmental
Legislation which agreement concerns any such Contamination; or


 


(b)           any fine or penalty imposed under or pursuant to the Environmental
Legislation in relation to any such Contamination;


 


Excluded Event means an act
of God, civil commotion, riot, war, earthquake, lightning, storm or tempest.


 


Information table means the part of this lease described as Information table.


 


Insolvency Event means when the Tenant:


 


(a)           is insolvent, within the meaning of section 95A of the Corporations Act;


 


(b)           is presumed by a court to be insolvent by reason of section 459C(2) of
the Corporations Act;


 


(c)           has a liquidator or provisional liquidator appointed in respect of it;


 


(d)           has an administrator appointed over all or substantially all of its
assets or undertaking (and whose appointment is not withdrawn, within five
Business Days);


 


(e)           has a receiver, receiver and manager or other controller within the
meaning of section 9 of the Corporations Act
or similar officer appointed to all or substantially all of its
assets or undertaking (and whose appointment is not withdrawn within five
Business Days);


 


(f)            except to reconstruct or amalgamate while
solvent, has an application or order made, a resolution passed, an application
to a court made or other steps taken against or in respect of it (other than
frivolous or vexatious applications or steps or an application withdrawn or dismissed
within 30 Business Days) for its winding up or dissolution or for it to enter
an arrangement, compromise or composition with or assignment for the benefit of
its creditors, a class of them or any of them; or


 


(g)           admits in writing that it is, or is declared to be, insolvent or unable
to pay all of its debts when they become due and payable.


 


Item means
an item appearing in the Information table.


 


Land means
the land described in Item 1.


 


Landlord means the party specified as the Landlord in the party details in the
Information table.


 


Landlord’s Property means the Landlord’s fixtures, fittings and other property in, on or
fixed to the Premises including the Services. It does not include the Tenant’s
Property, regardless of whether it is in, on or fixed to the Premises.


 


Legislative Action means the taking of any action (including the commencement of any legal
proceedings), the making of any order or declaration, or the giving of any
notice under any of the Environment Legislation by a statutory authority;


 


OHS Act means the Occupational Health and
Safety Act 2001 (NSW).


 


OHS Regulation means the Occupational Health and
Safety Regulation 2001 (NSW).


 


11





















 


Option Window means the period specified in Item 10 being the period during which the
Tenant may exercise the option (if any) to renew this lease.


 


Outgoings means the total of reasonable amounts properly paid or payable by the
Landlord during an Outgoings Year in connection with the ownership, operation,
management, maintenance and administration of the Premises (except expenses of
a capital nature or relating to structural matters), such as:


 


(a)           all:


 


(i)            rates;


 


(ii)           land tax or tax of a similar nature calculated on the basis that the Land
is the only land owned by the Landlord;


 


(iii)          other levies and taxes (except income tax and capital gains tax); and


 


(iv)          other fees charges or duties,


 


levied
by an authority on the Landlord in respect of any part of the Premises;


 


(b)           reasonable insurance premiums for policies covering:


 


(i)            insurance of the improvements on the Land
against all usual risks to the full reinstatement value;


 


(ii)           plate glass;


 


(iii)          public liability;


 


(iv)          workers’ compensation;


 


(v)           loss of rents; and


 


(vi)          machinery breakdown;


 


(c)           all reasonable costs in connection with:


 


(i)            maintenance, repair and redecoration of the
improvements on the Land which no occupier (other than the Landlord) is obliged
to do;


 


(ii)           operating and providing any of the Services;


 


(iii)          managing the Premises (including any fees payable to a managing agent appointed
by the Landlord to manage the Premises on the Landlord’s behalf) to a maximum
in any Outgoings Year of 2% of the Rent payable in respect of that Outgoings
Year) or 2% of $975,000, whichever is the greater; and


 


(iv)          complying with the requirements of any authority in relation to the
certification of essential services to the Premises, such as an annual fire
safety statement;


 


(d)           all costs in connection with maintaining, repairing, testing and
replacing the Services.


 


Outgoings Budget means the budget for Outgoings for each Outgoings Year provided to the
Tenant by the Landlord under clause 3.2.


 


Outgoings Year means a year ending on the date specified in Item 8 or another date
specified by the Landlord (acting reasonably) in a notice to the Tenant.


 


Payment Date means the Commencing Date and then the first day of each subsequent
month.


 


Premises means the premises specified in Item 2 and includes Landlord’s Property.


 


Principal Contractor has the same meaning as that contained in the
OHS Regulation.


 


12





















 


Rent means
the yearly rent specified in Item 6 as changed under this lease.


 


Remediation has the meaning given to the term in the Environment Protection Act 1997 (ACT);


 


Services means
the services provided by authorities, the Landlord or others to the Premises,
including electricity, gas, water, sewerage, air conditioning, lifts,
escalators, fire control and communications together with all plant and
equipment relating to those services.


 


Tenant means the party specified as the Tenant in the party details in the
Information table.


 


Tenant’s Associates means each of the Tenant’s employees, officers, agents, contractors,
consultants, invitees, subtenants and licensees.


 


Tenant’s Business means the business carried on in the Premises by the Tenant.


 


Tenant’s Property means all plant and equipment, fixtures, fittings, furniture,
furnishing and decorations and other property in, on or fixed to the Premises
owned by the Tenant or installed in or brought onto the Premises by or on
behalf of the Tenant.


 


Term means
the period specified in Item 3 starting on the Commencing Date and ending on
the Terminating Date.


 


Terminating Date means the terminating date specified in Item 5.


 


1.2          Interpretation


 


In
this lease, except where the context otherwise requires:


 


(a)           the singular includes the plural and vice versa, and a gender includes
other genders;


 


(b)           another grammatical form of a defined word or expression has a
corresponding meaning;


 


(c)           a reference to a clause, paragraph, schedule, information table or annexure
is to a clause or paragraph of, or schedule or information table or annexure
to, this lease, and a reference to this lease includes any schedule or
annexure;


 


(d)           a reference to a document or instrument includes the document or
instrument as novated, altered, supplemented or replaced from time to time;


 


(e)           a reference to A$, $A, dollar or $ is
to Australian currency;


 


(f)            a reference to a party includes the party’s
executors, administrators, successors and permitted assigns and substitutes;


 


(g)           a reference to a person includes a natural person, partnership, body
corporate, association, governmental or local authority or agency or other
entity;


 


(h)           a reference to a statute, ordinance, code or other law includes
regulations and other instruments under it and consolidations, amendments,
re-enactments or replacements of any of them;


 


(i)            the meaning of general words is not limited
by specific examples introduced by including,
for example or similar expressions;


 


(j)            any agreement, representation, warranty or
indemnity by two or more parties (including where two or more persons are
included in the same defined term) binds them jointly and severally;


 


(k)           any agreement, representation, warranty or indemnity in favour of two
or more parties (including where two or more persons are included in the same
defined term) is for the benefit of them jointly and severally;


 


13





















 


(l)            a rule of construction does not apply to the
disadvantage of a party because the party was responsible for the preparation
of this lease or any part of it; and


 


(m)          if a day on or by which an obligation must be performed or an event
must occur is not a Business Day, the obligation must be performed or the event
must occur on or by the next Business Day.


 


1.3          Headings


 


Headings
are for ease of reference only and do not affect interpretation.


 


1.4          Governing law and
jurisdiction


 


This
lease is governed by the law of the state in which the Land is located and each
party irrevocably and unconditionally submits to the non-exclusive jurisdiction
of the courts of that state and all courts of appeal from those courts.


 


2.             Rent


 


2.1          Tenant to pay


 


The
Tenant must pay the Rent by monthly instalments in advance on each Payment Date
starting on the Commencing Date unless a later date is specified in Item 6.


 


2.2          Instalments


 


Each
instalment is to be one twelfth of the Rent but if a rent instalment is for a
period of less than one month, the instalment for that period is apportioned on
a daily rate for the relevant lease year.


 


3.             Outgoings


 


3.1          Tenant to pay Tenant’s
Contribution


 


The
Tenant must pay the Outgoings for each Outgoings Year, in accordance with the
provisions of this clause.


 


3.2          Outgoings Budget


 


The
Landlord will prepare and give to the Tenant:


 


(a)           a budget for the Outgoings for the current Outgoings Year, as soon as
practicable after the Commencing Date; and


 


(b)           a budget for the Outgoings for the following Outgoings Year, as soon as
practical before the end of each Outgoings Year.


 


3.3          Content of Outgoings Budget


 


A
budget given under clause 3.2 and any varied budget given under clause 3.4 must
include reasonable details of each of the items comprising the Outgoings.


 


3.4          Landlord’s right to vary the
Outgoings Budget


 


The
Landlord can vary the Outgoings Budget at any time during an Outgoings Year by
reasonable notice to the Tenant.


 


3.5          Payment by instalments


 


The
Tenant must pay the Outgoings by instalments in advance on each Payment Date.
Each instalment is to be one-twelfth of the Outgoings for the relevant
Outgoings Year, based on the Outgoings Budget (or any variation to the Outgoings
Budget under clause 3.4). If an instalment is


 


14





















 


for
a period of less than one month, the instalment for that period is apportioned
at a daily rate for the relevant Outgoings Year.


 


3.6          Delayed budget


 


If
the Outgoings Budget in any Outgoings Year has not been provided to the Tenant
by the Landlord before the first Payment Date in that Outgoings Year:


 


(a)           the Tenant must pay an instalment equal to the instalment payable on
the last Payment Date of the previous Outgoings Year on each Payment Date until
the Outgoings Budget has been provided to the Tenant by the Landlord; and


 


(b)           on the first Payment Date after the Outgoings Budget in any Outgoings
Year has been provided to the Tenant by the Landlord, the Tenant must pay the
difference between what it has paid under clause 3.6(a) and what it should have
paid if the Outgoings Budget had been provided before the first Payment Date of
that Outgoings Year.


 


3.7          Statement of actual
Outgoings


 


Within
three months after the end of an Outgoings Year the Landlord must give the
Tenant a statement (Landlord’s statement) containing:


 


(a)           reasonable details of the actual Outgoings for the previous Outgoings
Year;


 


(b)           if the aggregate of the Outgoings is more than the Outgoings Budget,
the amount the Tenant owes the Landlord for the Outgoings for the previous
Outgoings Year; and


 


(c)           if the aggregate of the Outgoings is less than the Outgoings Budget,
the amount the Landlord owes to the Tenant.


 


At
the Tenant’s request, the Landlord will, at the Tenant’s cost, provide to the
Tenant a copy of a certificate signed by a registered company auditor that in
the auditor’s opinion, based on the results of the auditor’s auditing
procedures, the statement records the Outgoings for the previous Outgoings
Year.


 


3.8          Reconciliation during the
Term


 


Subject
to clause 3.10, on the first Payment Date after the Landlord gives the Tenant
the Landlord’s statement, the Tenant must pay any shortfall (or the Landlord
must credit the Tenant with any overpayment) of the Outgoings for the previous
Outgoings Year.


 


3.9          Reconciliation after the
Term


 


Subject
to clause 3.10, if the Landlord’s statement is provided to the Tenant after the
expiration or termination of the lease, the Tenant must pay any shortfall (or
the Landlord must repay the Tenant any overpayment) of the Outgoings for the
previous Outgoings Year within 28 days of the statement being provided.


 


3.10        Tenant’s right to seek
further information regarding Outgoings


 


(a)           Sub-clause (b) applies if, within 14 days of the Tenant’s receipt of
the Landlord’s statement under clause 3.7, the Tenant gives to the Landlord
notice claiming that one or more items comprising Outgoings (other than rates
and taxes) has been incurred by the Landlord as set out in the statement of
Outgoings at a price which does not reflect a fair and competitive price for
that item or that an amount incurred is not an Outgoing as defined in this
Lease.


 


(b)           If the Tenant gives notice to the Landlord under sub-clause (a), the
Landlord must give to the Tenant such information within its possession as may
be necessary to reasonably


 


15





















 


satisfy
the Tenant (acting reasonably) that the Landlord’s incurred price for the items
specified in the Tenant’s notice is fair and competitive.


 


(c)           If the Tenant notifies the Landlord within 14
days after receipt of information under sub-clause (b) that it is not satisfied
that the price incurred by the Landlord for the relevant item is a fair and
competitive price or that an amount incurred is an Outgoing as defined in this
Lease, then whether or not:


 


(1)           the incurred price for the item is fair and competitive (and, if not,
what is a fair and competitive price for the item); or


 


(2)           an amount incurred is an Outgoing as defined in this Lease,


 


must
be determined by an independent expert appointed by the Landlord. The expert
must act as an expert and not as an arbitrator, must make his determination
promptly and must give notice to the parties of his determination. The expert’s
determination (including as to payment of his costs) is final and binding
(except for manifest error).


 


(d)           If the Tenant fails to give a notice under sub-clause (c), the Tenant
is deemed to be satisfied that the Landlord’s incurred price is a fair and
competitive price and that all amounts incurred are Outgoings as defined in
this Lease.


 


(e)           Despite any other provision in this Lease, the Tenant is not obliged to
pay the Landlord the amount which is in dispute in respect of the particular
item in accordance with this clause until 14 days after either:


 


(1)           the Tenant notifies the Landlord that it is satisfied or is deemed
under this clause to be satisfied that the incurred price is a fair and
competitive price or that an amount incurred is an Outgoing as defined in this
Lease; or


 


(2)           the expert determines that the incurred price is a fair and competitive
price or determines the fair and competitive price for the relevant item or
determines that an amount incurred is an Outgoing as defined in this Lease.


 


4.             Payment for Services


 


4.1          Direct charges


 


The
Tenant must pay for:


 


(a)           Services metered to the Premises; and


 


(b)           charges and duties imposed directly on the Tenant’s Business, the
Tenant’s Property and the Tenant’s particular occupation of the Premises.


 


5.             Costs


 


5.1          Costs and expenses


 


The
Tenant must pay the Landlord’s reasonable costs and disbursements in connection
with:


 


(a)           exercising rights to take action because of the Tenant’s default;


 


(b)           the Tenant’s default; and


 


(c)           the Tenant’s requests for consent or approval (such as to do works) or
the Tenant’s proposals (such as to assign or to sublet).


 


16





















 


Each
party must pay its own costs and disbursements in connection with the preparation
and negotiation of this lease.


 


5.2          Stamp duty and registration fees


 


The
Tenant must pay the stamp duty and registration fees in connection with this
lease.


 


6.             Payment conditions


 


6.1          Payments


 


The
Tenant must pay amounts payable by it under this lease:


 


(a)           by electronic funds transfer to the bank account nominated from time to
time by the Landlord or by any other method the Landlord reasonably requires
and notifies to the Tenant;


 


(b)           in the case of periodic payments, by the relevant Payment Date;


 


(c)           without set-off, counterclaim or deduction; and


 


(d)           to the Landlord or as the Landlord directs.


 


6.2          Interest


 


If
the Tenant does not pay any money payable by the Tenant to the Landlord under
this lease within seven days after the due dale, the Tenant must pay interest on
the overdue money. The interest:


 


(a)           is payable at an annual rate which is the total of 2% and the rate per annum charged by
the Landlord’s principal bankers for overdraft accommodation for amounts
exceeding $100,000 determined on the first day of each month for the period for
which interest is to be calculated;


 


(b)           is calculated on monthly rests on the first day of each month on the
amount (if any) owing by the Tenant to the Landlord on that day;


 


(c)           accrues daily from the due date for payment of the relevant amount
until the date of payment;


 


(d)           is payable on demand; and


 


(e)           is capitalized on the last day of each month if not paid.


 


7.             GST


 


7.1          Interpretation


 


In
this lease:


 


(a)           GST, supply, taxable supply and tax invoice have the same meaning
as in A New Tax System (Goods and Services Tax) Act 1999; and


 


(b)           a reference to payment being made or received includes a reference to
consideration other than money being given or received.


 


7.2          Tenant’s obligations


 


Provided
that the Landlord complies with clause 7.4, the Tenant must pay to the
Landlord, on each date the Tenant must make payment for a taxable supply under
this lease, an additional


 


17





















 


amount
equal to the GST payable on the taxable supply or component of the supply for
which that payment is made.


 


7.3          Net down


 


When
calculating the amount of:


 


(a)           the Outgoings for an Outgoings Year and the Base Year;


 


(b)           any reimbursement from the Tenant to the Landlord; and


 


(c)           the indemnification by the Tenant of the Landlord of an expense, loss
or liability incurred by the Landlord,


 


the
Landlord must exclude the GST paid or payable on the supply giving rise to the
amount.


 


7.4          Tax invoice


 


The
Landlord must give the Tenant a tax invoice for supplies under this lease on or
before each Payment Date.


 


8.             Bank Guarantee


 


8.1          Tenant to give


 


On
or before the Commencing Date, the Tenant must give the Landlord a Bank
Guarantee for the amount specified in Item 9.


 


8.2          Demanding payment


 


If
the Tenant does not comply with any of its obligations under this lease, the
Landlord may demand payment under the Bank Guarantee without notice to the
Tenant. The Landlord must use any sum paid to it under the Bank Guarantee to
rectify the Tenant’s breach.


 


8.3          Top up


 


If:


 


(a)           the Landlord draws down on the Bank Guarantee; or


 


(b)           the gross rent plus GST increases by more than 10% and if required by
the Landlord,


 


the
Tenant must give the Landlord an additional or replacement Bank Guarantee on
demand so that the amount of the Bank Guarantee is always for an amount
equivalent to the number of months of gross rent plus GST stated in Item 9.


 


8.4          Assignment


 


If
the Bank Guarantee is assignable, the beneficiary or favouree named in the Bank
Guarantee may assign it to any person to whom it assigns its interest in this
lease. If the Bank Guarantee is not assignable, or if the Landlord otherwise
reasonably requires a replacement Bank Guarantee for the benefit of that
person, the Tenant must promptly give a replacement Bank Guarantee to that
person when asked to by the Landlord and the Landlord must pay to the Tenant
the reasonable cost of doing so.


 


8.5          Replacement Bank Guarantee


 


If, for any reason, a Bank Guarantee provided by the Tenant (or a
predecessor of the Tenant) ceases to comply with the definition of Bank
Guarantee in clause 1.1 then the Tenant must provide a replacement Bank
Guarantee to the Landlord within a reasonable time of being asked to do so by
the Landlord.


 


18





















 


8.6          Return to Tenant


 


If
the Landlord is satisfied, acting reasonably, that the Tenant has complied with
all its obligations under this lease, the Landlord must return the Bank
Guarantee to the Tenant or to the issuing bank within a reasonable period after
the Terminating Date.


 


9.             Insurance


 


9.1          Public liability


 


The
Tenant must keep current during the Term and any holding over period public
risk insurance in connection with the Tenant’s Property and the Premises
covering each claim for at least the amount in Item 12 (or any other amount the
Landlord reasonably requires) with no limit on the number of claims that can be
made.


 


9.2          Policies


 


The
insurance policy the Tenant takes out under this clause 9 must:


 


(a)           be with an insurer and on terms approved by the Landlord (who must act
reasonably);


 


(b)           note the Landlord’s interest in the policy; and


 


(c)           cover events occurring while the policy is current, regardless of when
claims are made.


 


9.3          Evidence of insurance


 


In
respect of the insurance required by this clause 9, the Tenant must provide the
Landlord with a certificate of currency:


 


(a)           before taking possession of the Premises;


 


(b)           each year on renewal of the insurance; and


 


(c)           when the Landlord asks.


 


9.4          Notification


 


The
Tenant must notify the Landlord immediately if:


 


(a)           something happens which could give rise to a claim under, or could
prejudice, the policy; or


 


(b)           the
policy is cancelled.


 


9.5          Dealing with insurance


 


In
respect of the Landlord’s insurance of the Premises the Tenant must not do anything:


 


(a)           which may prejudice that insurance; or


 


(b)           without the Landlord’s consent, which may increase the premiums for
that insurance,


 


PROVIDED
THAT the Tenant will not be in breach of this clause unless the Landlord has
notified the Tenant of the act or omission by the Tenant causing the breach and
allowing the Tenant a reasonable opportunity to rectify the act or omission.


 


In
respect of the Tenant’s insurance required by this clause 9 the Tenant must
not, without the Landlord’s consent:


 


(c)           vary
or cancel the insurance or allow it to lapse; or


 


(d)           enforce, conduct, settle or compromise insurance claims.


 


19





















 


9.6          Extra costs


 


(a)           Subject to clause
9.6(b), if the Tenant does anything which increases the premium payable under
any of the Landlord’s insurances of the Premises, then the Tenant must pay to
the Landlord the amount of that increase.


 


(b)           The Tenant will not be liable for any increase in the Landlord’s
insurance premiums unless the Landlord has notified the Tenant of the act or
omission by the Tenant causing the increase in premium and allowing the Tenant
a reasonable opportunity to rectify the act or omission.


 


10.          Indemnities and releases


 


10.1        Tenant’s risk


 


The
Tenant occupies the Premises and enters and uses the Land at its risk.


 


10.2        Indemnity


 


The
Tenant is liable for and indemnifies the Landlord against all Claims directly
or indirectly arising from or incurred in connection with damage to or loss of
any property or injury to or the death of any person occurring on the Premises
except to the extent the damage, loss, injury or death is caused or contributed
to by:


 


(a)           the wrongful or negligent act or omission of the Landlord or its
officers or employees; or


 


(b)           any Environmental Liability arising out of the physical condition of
the Premises as at the Completion Date.


 


10.3        Release


 


The
Tenant releases the Landlord from any liability for Claims directly or
indirectly arising from or incurred in connection with:


 


(a)           any damage to or loss of any property or injury to or the death of any
person except to the extent it is caused or contributed to by the negligent act
or omission of the Landlord or its officers, agents, contractors,
sub-contractors or employees or where such damage, loss or injury arises out of
any Environmental Liability arising out of the physical condition of the Premises
as at the Completion Date; or


 


(b)           a Service not being available or not working properly provided the
Landlord has used its reasonable endeavours to restore or repair the Service.


 


10.4        No merger


 


The
indemnity in this clause 10 is independent from the Tenant’s other obligations
under this lease and does not come to an end when this lease expires or is
terminated. It is not necessary for the Landlord to incur expense or make a
payment before enforcing this indemnity.


 


11.          Repair, maintenance &
alterations


 


11.1        Repair and replace


 


(a)           The Tenant must:


 


(i)            keep the Premises and the Tenant’s Property
in good repair except to the extent that any disrepair is caused by an Excluded
Event, reasonable wear and tear or a defect in the structure of the Premises;


 


20





















 


(ii)           repair damage to the Premises caused or contributed to by the act,
omission, negligence or default of the Tenant or the Tenant’s Associates;


 


(iii)          enter into contracts for the maintenance and repair of the Tenant’s
plant and equipment located on or in the Premises with contractors approved by
the Landlord (acting reasonably);


 


(iv)          give all relevant authorities all certifications required by those
authorities in connection with the plant and equipment referred to in paragraph
(iv) above; and


 


(v)           when the Landlord asks, give the Landlord evidence that the Tenant has
complied with its obligations under paragraphs (iv) and (v) above.


 


(b)           The Landlord must, in respect of the Services:


 


(i)            enter into contracts for the maintenance and
repair of the Services located on or in the Premises with reputable
contractors;


 


(ii)           give all relevant authorities all certifications required by those
authorities in connection with the Services referred to in paragraph (b)(i)
above; and


 


(iii)          when the Tenant asks, give the Tenant evidence that the Landlord has
complied with its obligations under paragraphs (b)(i) and (ii) above.


 


11.2        Tenant’s works


 


The
Tenant must not carry out works which alter the structure of the Premises or
the Services in the Premises without the Landlord’s approval. The Landlord’s
approval is not required to other works in the Premises. If the Landlord
approves any works the Tenant must ensure that the works it does are done:


 


(a)           in a proper and workmanlike manner;


 


(b)           by contractors approved by the Landlord (who must act reasonably); and


 


(c)           in accordance with:


 


(i)            any reasonable conditions imposed by the
Landlord (including as to payment of its reasonable costs);


 


(ii)           any plans, specifications or schedule of finishes approved by the
Landlord (who must act reasonably);


 


(iii)          all laws and the requirements of all authorities; and


 


(iv)          the Landlord’s other reasonable requirements and directions.


 


12.          Principal Contractor


 


12.1        Tenant’s appointment


 


Subject
to clauses 12.3 and 12.4, the Landlord:


 


(a)           appoints the Tenant and the Tenant accepts its appointment as Principal
Contractor for any Construction Work (other than Construction Work in respect
of which the Landlord has elected to be the Principal Contractor); and


 


(b)           authorises the Tenant to exercise such authority of the Landlord as is
necessary to enable the Tenant to discharge its responsibilities as Principal
Contractor.


 


21





















 


12.2        Tenant’s obligations


 


The
Tenant agrees that, as Principal Contractor, the Tenant (or, where clause 12.4
applies, the Tenant’s contractor):


 


(a)           is responsible for the Construction Work at all times until the
Construction Work is completed;


 


(b)           must ensure that in carrying out the Construction Work it complies with
all requirements of the OHS Regulation and the OHS Act; and


 


(c)           is responsible for all costs associated with performing the role of
Principal Contractor.


 


12.3        Landlord’s discretion


 


The
Landlord may, in its discretion, elect to be the Principal Contractor for the
whole or any part of the Construction Work.


 


12.4        Tenant’s contractor


 


If
the Tenant appoints a contractor to carry out the Construction Work and the
Tenant’s contractor agrees to act as principal contractor for the purpose of
the OHS Regulation and the OHS Act, then the Landlord appoints the Tenant’s
contractor for the relevant Construction Work (other than Construction Work in
respect of which the Landlord has elected to be the Principal Contractor).


 


13.          Cleaning


 


13.1        Tenant to provide


 


The
Tenant must provide a cleaning service to the Premises, which is approved by
the Landlord, and arrange to have rubbish removed from them regularly.


 


13.2        Tenant’s cleaning
obligations


 


The
Tenant must:


 


(a)           keep the Premises clean, tidy and free of vermin;


 


(b)           keep rubbish awaiting removal from the Premises in appropriate
containers in the Premises; and


 


(c)           comply with the laws and the requirements of all relevant authorities
in connection with waste removal.


 


14.          Tenant’s rights


 


14.1        Quiet enjoyment


 


Subject
to the Landlord’s rights and to the Tenant complying with the Tenant’s
obligations under this lease, the Tenant may use and occupy the Premises
without interruption by the Landlord or any person claiming through the
Landlord.


 


15.          Tenant’s obligations


 


15.1        Use


 


The
Tenant must not use the Premises for any purpose other than the use in Item 11.


 


22





















 


15.2        Compliance


 


(a)           The Tenant must comply with all laws and the requirements of all
authorities in connection with the:


 


(i)            Premises;


 


(ii)           Tenant’s Business;


 


(iii)          Tenant’s Property; and


 


(iv)          Tenant’s particular use and occupation of the Premises,


 


except
those requiring structural work on the Premises or requiring the Tenant to
incur capital costs or carry out works in respect of the Services unless that
work is required because of the Tenant’s particular use or occupation of the
Premises.


 


(b)           The Tenant must:


 


(i)            provide security and caretaking services to
the Premises; and


 


(ii)           control pests and vermin on the Premises.


 


15.3        Prohibitions


 


The
Tenant must not:


 


(a)           obstruct access to, overload or otherwise interfere with or damage
Services;


 


(b)           damage or destroy anything on the Land;


 


(c)           use any vehicle that does not have pneumatic tyres on roads or
pavements on the Land;


 


(d)           without the Landlord’s approval, do anything dangerous, noxious, offensive,
immoral or illegal on the Land;


 


(e)           do anything to pollute or contaminate the Land or its environment; or


 


(f)            without the Landlord’s approval, keep or use
dangerous or hazardous materials on the Premises.


 


15.4        Tenant’s Associates


 


The
Tenant must ensure that the Tenant’s Associates comply with the Tenant’s
obligations under this lease, if appropriate.


 


15.5        Hazardous materials


 


If
the Tenant seeks the Landlord’s approval to keep or use a hazardous material on
the Premises, the Tenant must:


 


(a)           give the Landlord evidence that all relevant authorities have approved
the hazardous material being kept or used on the Premises;


 


(b)           if the approval of authorities is subject to conditions, comply with
those conditions;


 


(c)           pay the Landlord’s reasonable costs (including the expert’s fees) of
consulting experts to satisfy the Landlord that the Tenant has done everything
necessary for the hazardous material to be kept safely on the Premises; and


 


(d)           pay to the Landlord the amount of the increase in the premium payable
under any of the Landlord’s insurances of the Premises.


 


23





















 


15.6        Environmental protection


 


(a)           If, during the Term or any renewal of or holding over under this lease,
the Tenant contaminates the Premises or any part of the Land by anything
noxious or hazardous to the environment, the Tenant must promptly (at its
cost):


 


(i)            undertake all audits, tests, surveys and
other investigations necessary to determine the nature and extent of the
contamination;


 


(ii)           notify the Landlord immediately of the nature and extent of the
contamination and the steps the Tenant proposes to take to control and remove
the contamination;


 


(iii)          do everything necessary to control and remove the contamination from
the Premises and any part of the Land; and


 


(iv)          pay the Landlord’s reasonable costs, charges and expenses in connection
with:


 


(A)          monitoring the Tenant’s actions; and


 


(B)           reasonably satisfying the Landlord that the Tenant has complied with
the Tenant’s obligations,


 


under
this clause 15.6.


 


(b)           Despite any other provision of this Lease, the Tenant is not liable to
comply with sub-clause (a) unless the Landlord proves to the Tenant’s
reasonable satisfaction that the relevant contamination was:


 


(i)            caused by the Tenant; and


 


(ii)           not in existence as at the date of commencement of the first lease of
the Premises from the Landlord to the Tenant.


 


15.7        Exceptions to clauses 15.3 and
15.5


 


Despite
any other provision of this Lease, the Landlord is deemed to have approved the
Tenant keeping and using on the Premises dangerous or hazardous materials which
are kept and used in the Premises prior to the commencement of this Lease.


 


16.          Landlord’s obligations


 


16.1        Structural integrity and
Services


 


The
Landlord must use reasonable endeavours to:


 


(a)           keep the structural elements of the improvements on the Land in good
repair (fair wear and tear excepted); and


 


(b)           maintain and repair and keep the Services in good and substantial
repair and working order.


 


16.2        Insurance, rates, laws


 


The
Landlord must keep current during the Term those insurances in connection with
the Premises which a prudent owner of premises like the Premises would take
out.


 


24





















 


17.          Landlord’s rights


 


17.1        Works and Services


 


The
Landlord may (where required to do so by law or in order to comply with its
obligations under this Lease):


 


(a)           carry out works (including demolition, alterations, refurbishment and
repairs) on the Land; and


 


(b)           use, operate, install, repair, maintain, remove, replace and
temporarily interrupt Services,


 


but
in doing so the Landlord must take reasonable steps to minimise interference
with the Tenant’s Business. Except in an emergency, the Landlord must give
reasonable prior notice and schedule works so as to minimise interruptions to
and interference with the Tenant’s Business (except in an emergency when no
notice is required).


 


17.2        Other rights


 


The
Landlord may:


 


(a)           close the Premises in an emergency;


 


(b)           in
an emergency:


 


(i)            prevent the Tenant and the Tenant’s
Associates from entering the Premises or require them to leave and stay out of
the Premises;


 


(ii)           without notice to the Tenant, enter the Premises and remain there and
use them for so long as reasonably necessary in the circumstances;


 


(c)           enter the Premises at reasonable times (to be agreed with the Tenant,
acting reasonably) after giving the Tenant reasonable notice:


 


(i)            to exercise the Landlord’s rights or to
comply with the Landlord’s obligations under this lease, or to comply with the
Landlord’s obligations under any law or to satisfy the requirements of an
authority;


 


(ii)           to see the state of repair of the Premises and that the Tenant is
complying with the Tenant’s obligations under this lease;


 


(iii)          to inspect, test, repair or do work on the Premises which cannot
reasonably be done without the Landlord entering the Premises, provided that
this is done at times agreed with the Tenant, acting reasonably, so as to minimise
any impact on the Tenant’s Business;


 


(iv)          (if the lease contains an option and the Tenant does not exercise that
option during the Option Window) to show the Premises to prospective tenants at
any time after the last day of the Option Window; and


 


(v)           (if the lease does not contain an option) to show the Premises to
prospective tenants during the last six months of the Term and during any
holding over period;


 


(d)           at any time and from time to time, erect, affix or exhibit on the
Premises where the Landlord thinks fit “For Sale” or “For Lease” notices and
signs and the Tenant will not remove or relocate any such notice or sign
without the written consent of the Landlord;


 


(e)           from time to time upon reasonable notice and at times agreed with the
Tenant, acting reasonably, enter upon the Premises to show the Premises to
prospective purchasers of the Land;


 


25





















 


(f)            subdivide the Land or the improvements on the
Land or both (including by strata or stratum subdivision) and grant easements
and other rights over them, if this does not adversely affect the Tenant’s
rights under this lease or the Tenant’s Business; and


 


(g)           appoint agents or others to exercise any of the Landlord’s rights.


 


17.3        Carry out Tenant’s
obligations


 


If
the Tenant does not do something it is obliged to do under this lease, or, in
the Landlord’s reasonable opinion, the Tenant does not do it properly, the
Landlord may do that thing at the Tenant’s reasonable expense provided that:


 


(a)           the Landlord has first served a notice on the Tenant stating that the
Landlord intends to exercise its rights under this clause and providing details
of the obligation the Landlord considers has not been complied with, including
the relevant Lease clause reference (“Notice to Comply”); and


 


(b)           the Tenant has not, in the Landlord’s reasonable opinion, complied with
the obligation referred to in the Notice to Comply within the time specified in
that notice (such time being a reasonable period having regard to the
obligation concerned).


 


17.4        Landlord released


 


If
a person other than the Landlord becomes the registered proprietor of the Land,
then the Landlord is released from all obligations under this lease arising
after the other person becomes the registered proprietor of the Land.


 


For
the avoidance of doubt, nothing in this lease in any way limits the obligations
of the vendors or the guarantors to the purchasers under the Asset Sale
Agreement.


 


18.          Assigning, subletting, charging


 


18.1        Assigning


 


The
Tenant may assign its interest in this lease only if:


 


(a)           the Tenant has satisfied the Landlord that the proposed assignee:


 


(i)            is respectable and responsible;


 


(ii)           is financially sound and capable of complying with the Tenant’s payment
obligations under this lease and under any renewal of this lease;


 


(iii)          does not propose to use the Premises for any purpose other than the use
in Item 11 or another use approved by the Landlord and all relevant
authorities;


 


(b)           the proposed assignee has given the Landlord whatever security the
Landlord reasonably requires in connection with the proposed assignee’s
obligations as tenant;


 


(c)           the Tenant and the proposed assignee have entered into a deed with the
Landlord, in a form the Landlord reasonably requires, agreeing amongst other
things that:


 


(i)            the proposed assignee is to be bound by this
lease as if the proposed assignee were the Tenant; and


 


(ii)           the Tenant remains obliged to comply with this lease as if the proposed
assignment had not taken place;


 


(iii)          if this lease is registered, the proposed assignee and the Tenant must
sign a transfer of this lease and on the date the assignment becomes effective,
hand it in


 


26





















 


registrable
form with the registration fee to the Landlord for the Landlord to lodge for
registration;


 


(d)           at the time the proposed assignment is to take place, the Tenant is not
in default under this lease;


 


(e)           the Landlord has obtained any consents it reasonably requires before an
assignment of this lease takes place; and


 


(f)            the Tenant and the proposed assignee have
complied with all of the Landlord’s other reasonable requirements in connection
with the assignment.


 


18.2        Subletting


 


The
Tenant may sublet all or part of the Premises only if:


 


(a)           the Tenant satisfies the Landlord that the proposed subtenant:


 


(i)            is respectable and responsible;


 


(ii)           is financially sound and capable of complying with the subtenant’s
payment obligations under the proposed sublease;


 


(iii)          does not propose to use the Premises for any purpose other than the use
in Item 11 or another use approved by the Landlord and all relevant
authorities;


 


(b)           the proposed subtenant enters into a deed with the Landlord in a form
the Landlord reasonably requires agreeing amongst other filings:


 


(i)            not to breach this lease;


 


(ii)           not to subunderlet the sublet premises; and


 


(iii)          to pay the rent and other money payable under the sublease to the
Landlord on demand if the Tenant is in default of its payment obligations under
this lease;


 


(c)           at the date the proposed sublease is to be granted, the Tenant is not
in default under this lease;


 


(d)           the Landlord has obtained any consents it is obliged to obtain before
it consents to a sublease; and


 


(e)           the Tenant and the proposed subtenant have complied with all the
Landlord’s other reasonable requests in connection with the subletting.


 


18.3        Change in control


 


If
the Tenant is an unlisted corporation and there is a proposal that:


 


(a)           a person or a group of persons cease to be entitled to at least 50% of
the Tenant’s share capital; or


 


(b)           there is a proposed change in the shareholding of the Tenant or its
holding company so that a different person or group of persons will control the
composition of the board of directors or more than 50% of the shares giving a
right to vote at general meetings,


 


then
before the proposed change can take place, the Tenant must obtain the Landlord’s
consent.


 


The
Landlord must give its consent if the Tenant:


 


(c)           is not in default under this lease;


 


(d)           proves to the Landlord’s reasonable satisfaction that if the proposed
change takes place, the Tenant will be as:


 


27





















 


(i)            respectable and responsible;


 


(ii)           financially sound and capable of complying with the Tenant’s payment
obligations under this lease and under any renewal of this lease,


 


as
it was immediately before the change was proposed; and


 


(e)           gives the Landlord any security the Landlord reasonably requires in
connection with the Tenant’s obligations under this lease.


 


18.4        Charging Tenant’s Property


 


The
Tenant may charge the Tenant’s interest in the Tenant’s Property only if:


 


(a)           the Tenant has satisfied the Landlord that the principal purpose of the
proposed charge is to finance or refinance the acquisition of Tenant’s
Property;


 


(b)           each party to the proposed charge has entered into a deed with the
Landlord in a form acceptable to the Landlord regulating the installation and
removal of the charged property and covenanting not to lodge a caveat against
the title to the Land in connection with the charged property; and


 


(c)           at the date the proposed charge is to be entered into, the Tenant is
not in default under this lease.


 


18.5        No other dealings


 


The
Tenant must not share the use and occupation of the Premises or deal with its
interest in this lease in anyway except as set out in this clause 18.


 


19.          Option for a new lease


 


19.1        Conditions for grant


 


The
Landlord must grant the Tenant a new lease of the Premises for the term first
specified in Item 13, only if:


 


(a)           the Tenant gives the Landlord a notice during the Option Window (time
being of the essence) that it wants the new lease;


 


(b)           when the Tenant gives that notice and on the Terminating Date:


 


(i)            the Tenant has not been late with a payment
due under this lease more than three times during the Term; and


 


(ii)           the Tenant is not in breach of this lease; and


 


(c)           before the Terminating Date, the Tenant delivers to the Landlord the
same kind of security in connection with the Tenant’s obligations under the new
lease given by the same bank or person (or another bank or person acceptable to
the Landlord) as any given under this lease.


 


19.1A     First further term - alternatives


 


(a)           The Tenant must, with its notice under clause 19.1(a), specify whether
it wants the new lease for the term referred to in Item 13(l)(a) or for the
term referred to in Item 13(l)(b).


 


(b)           If the Tenant does not specify in its notice given under clause 19.1(a)
whether it wants the new lease to be for the term referred to in Item 13(1)(a)
or for the term referred to in Item 13(l)(b), then the Tenant is deemed to have
notified the Landlord that it wants the new lease to be for the term referred
to in Item 13(1)(b).


 


28





















 


(c)           If the Tenant leases the Premises for the further term referred to in
Item 13(l)(b), then the new lease must not contain this Part and the details in
Item 10 and Item 13 are to be deleted and replaced with “Not applicable”.


 


(d)           This clause 19.lA must not be contained in any further lease.


 


19.2        Form of new lease


 


The
new lease is to be the same as this lease (as varied during the Term) except
that:


 


(a)           if particulars of more than one new lease are specified in Item 13, the
particulars of the new lease first specified are deleted from Item 13;


 


(b)           if the particulars of the new lease are the only particulars specified
in Item 13:


 


(i)            the details in Item 10 and Item 13 are to be
deleted and replaced with the words ‘Not applicable’;


 


(ii)           this clause 19 is to be
deleted;


 


(c)           the term, the commencing date and the terminating date of the new lease
are to be those first specified in Item 13; and


 


(d)           the rent at the commencing date of the new lease is to be an amount
which is the greater of:


 


(i)            103.5% of the rent payable immediately prior
to the commencement of the new lease; and


 


(i)            market rent determined in accordance with
Schedule 1.


 


19.3        The Tenant will have the right by written
notice to the Landlord served within 1 month after the agreement or
determination of the Rent in accordance with Schedule 1 to terminate without
any liability whatsoever (other than for antecedent breach) the new lease on
the date 12 months after the date of agreement or determination of the initial
Rent for the new lease.


 


20.          Damage and destruction


 


20.1        Not Used


 


20.2        Landlord’s notice


 


If
the Premises are destroyed, or damaged so that the Tenant cannot access, occupy
or use the Premises or a substantial part of them, then within three months
after the destruction or damage occurs, the Landlord must give the Tenant a
notice which either:


 


(a)           terminates this lease on a date at least one month after the date the
Landlord gives the notice; or


 


(b)           states that the Landlord intends to repair the Premises so that the
Premises are fit for the Tenant to access, occupy and use and specifies a date
by which the Landlord reasonably estimates that the Premises will be repaired.


 


20.3        Tenant’s notice


 


If
the Landlord gives a notice under clause 20.2(b) and the Tenant believes that
the Landlord is not taking all reasonable steps to repair the Premises as
expeditiously as possible, then the Tenant may give the Landlord a notice
requiring the Landlord to make the Premises fit for the Tenant to access,
occupy and use within a reasonable time after the Tenant gives the notice.


 


29





















 


20.4        Tenant may terminate


 


If the Landlord does not
comply with:


 


(a)           clause
20.2, the Tenant may terminate this lease with immediate effect on written
notice to the Landlord; or


 


(b)           the
Tenant’s notice under clause 20.3, the Tenant may terminate this lease on one
month’s written notice to the Landlord unless the Landlord can demonstrate that
it is taking all reasonable steps to repair the Premises as expeditiously as
possible.


 


20.5        Payments reduced


 


Subject
to clause 20.6, the Tenant may reduce any payments under this lease by a
proportion equal to the Tenant’s loss of amenity of the Premises for the period
beginning on the day the damage occurs and ending on the day this lease is
terminated under this clause 0 or the day the Premises are fit for the Tenant
to access, occupy and use.


 


20.6        Dispute about payments


 


If
the Landlord and the Tenant cannot agree on the proportion by which the Tenant
may reduce its payments within seven days, then either party may ask the
President of the Australian Property Institute to nominate a valuer to
determine the appropriate proportion. The Tenant must continue making all
payments under this lease without reducing them until the amount by which they
are to be reduced is agreed on or determined.


 


20.7        Adjustments


 


On
the first Payment Date after the proportion referred to in clauses 20.5 and
20.6 is agreed or determined, the Tenant must pay the Landlord any shortfall
(or the Landlord must credit the Tenant with any overpayment) from and
including the day the damage occurs to but excluding that Payment Date.


 


20.8        Destruction or damage caused
by Tenant


 


The Tenant may not
terminate this lease or reduce payments under this clause 20.8 if:


 


(a)           the
damage is caused or substantially contributed to by; or


 


(b)           rights
under an insurance policy in connection with the Premises are prejudiced or a
policy is cancelled or a claim is refused by the insurer because of,


 


the negligence or default
of the Tenant or the Tenant’s Associates. This does not affect other rights the
Landlord may have in connection with the events specified in this clause 20.8.


 


20.9        Landlord need not repair


 


This clause 20 does not oblige the Landlord to rebuild or repair the
Premises.


 


21.          Holding over


 


21.1        Monthly tenancy


 


(a)           If
the Landlord has not granted the Tenant a new lease of the Premises and
consents to the Tenant continuing to occupy the Premises as tenant after the
Terminating Date, then the Tenant occupies the Premises from that date under a
monthly tenancy which either party may terminate on one month’s notice ending
on any day.


 


(b)           Despite
sub-clause (a), the lease for the further term referred to in Item 13(l)(b)
must contain a provision to the effect that (despite the terms of that lease)
the Landlord is not


 


30





















 


entitled to terminate the
monthly tenancy arising after the expiry of that lease until after the date 6
months after the date of expiration of that lease.


 


21.2        Terms of monthly tenancy


 


Subject to clause 21.1,
the monthly tenancy is on the terms and at the rent the Landlord specifies but
if the Landlord does not specify the terms or the rent, the monthly tenancy is
on the same terms as apply during the Term of this lease (so far as those terms
are applicable to a monthly tenancy) with a monthly rent that is one twelfth of
the Rent.


 


22.          Default


 


22.1        Tenant’s breach


 


The Landlord may
terminate this lease if:


 


(a)           the Tenant has failed to pay Rent or Outgoings to the Landlord on time,
and the Landlord has given the Tenant a notice specifying the amount owing and
requiring the Tenant to pay it within 14 days after the notice is given; or


 


(b)           an Insolvency Event occurs in respect of the Tenant, and the Landlord
has given the Tenant a notice requiring the Tenant to prove to the Landlord’s
satisfaction with 14 days after the notice is given that it is no longer
subject to the Insolvency Event; or


 


(c)           the Tenant has not complied with any other obligation under this lease,
and in the Landlord’s reasonable opinion the non-compliance can be remedied,
and the Landlord has given the Tenant a notice specifying the non-compliance
and requiring the Tenant to remedy it within a reasonable time after the date
the notice is given; and


 


the
Tenant does not comply with a notice given by the Landlord under this clause
22.1.


 


22.2        Statutory notice


 


If the law requires the
Landlord to give a notice in a particular form before terminating this lease
then the notice required by law will be sufficient to satisfy the Landlord’s
obligations under clause 22.1


 


22.3        Loss of Bargain


 


If the Landlord
terminates this lease under clause 22.1 because the Tenant has not complied
with an essential term under this lease and the Landlord re-enters and takes
possession of the Premises, the Tenant indemnifies the Landlord against any
Claims arising because the Landlord will not receive the benefit of the Tenant
performing its obligations under this lease from the date of the termination
until the Terminating Date.


 


22.4        Essential terms


 


The essential terms of
this lease include the Tenant’s obligations under clauses 8, 9, „ 18, 23 and
each of the Tenant’s obligations to pay money.


 


22.5        Indemnity for default


 


The
Tenant must indemnify the Landlord for Claims arising from the Tenant’s
default.


 


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23.          Yielding
up


 


23.1        Vacating and removal of Tenant’s
Property


 


Unless
the Tenant has exercised an option to renew this lease, on the earlier of the
Terminating Date and the date this lease ends, the Tenant must:


 


(a)           vacate the Premises and remove the Tenant’s Property and make good any
damage caused by such removal;


 


(b)           give the Landlord all keys, access cards and other security devices for
the Premises which have been issued to the Tenant or the Tenant’s Associates;
and


 


(c)           leave
the Premises clean and free from rubbish.


 


23.2        Tenant’s Property


 


The
Tenant may not remove Tenant’s Property which:


 


(a)           is part of structural work done by the Tenant to the Premises, unless
the Landlord gives the Tenant a notice to remove it or unless, as a condition
of its consent to the Tenant doing the structural work, the Landlord stipulated
that it must be removed; or


 


(b)           is to remain on the Premises under a condition imposed by the Landlord
when approving of the Tenant’s works on the Premises.


 


23.3        Tenant’s Property abandoned


 


If
the Tenant does not remove any Tenant’s Property in accordance with this clause
23, then the Landlord may treat it as abandoned and dispose of it as the
Landlord sees fit at the Tenant’s expense.


 


23.4        Tenant not required to make-good


 


Nothing
in this lease requires the Tenant to restore the Premises to the condition they
were in at the Commencing Date or to otherwise make good the Premises (other
than to comply with clause 23.1).


 


24.          Notices and other communications


 


24.1        Service of notices


 


A
notice, demand, consent, approval or communication under this lease (Notice) must be:


 


(a)           in writing, in English and signed by an authorised person; and


 


(b)           hand delivered or sent by prepaid post or facsimile to the recipient’s
address for Notices specified in the notice details of the Information table,
as varied by any Notice given by the recipient to the sender.


 


24.2        Effective on receipt


 


A
Notice given in accordance with clause 24.1 takes effect when received (or at a
later time specified in it), and is taken to be received:


 


(a)           if hand delivered, on delivery;


 


(b)           if sent by prepaid post, on the second Business Day after the date of
posting (or on the seventh Business Day after the date of posting if posted to
or from a place outside Australia);


 


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(c)           if sent by facsimile, when the sender’s facsimile system generates a
message confirming successful transmission of the entire Notice unless the
recipient, immediately informs the sender that it has not received the entire
Notice,


 


but
if the delivery, receipt or transmission is not on a Business Day or is after
5.00pm on a Business Day, the Notice is taken to be received at 9.00am on the
next Business Day.


 


25.          Miscellaneous


 


25.1        Alterations


 


This
lease may be altered only in writing signed by each party.


 


25.2        Approvals and consents


 


Except
where this lease expressly states otherwise, a party may withhold or give
conditionally any approval or consent under this lease, but the approval must
not be unreasonably withheld or delayed.


 


25.3        Stamp duty


 


Any
duty (including fines, penalties and interest) in connection with this lease or
any transaction contemplated by this lease, must be paid by the Tenant.


 


25.4        Severability


 


A
term or part of a term of this lease that is illegal or unenforceable may be
severed from this lease and the remaining terms or parts of the term of this
lease continue in force.


 


25.5        Waiver


 


A
party does not waive a right, power or remedy if it fails to exercise or delays
in exercising the right, power or remedy. A single or partial exercise of a
right, power or remedy does not prevent another or further exercise of that or
another right, power or remedy. A waiver of a right, power or remedy must be in
writing and signed by the party giving the waiver.


 


25.6        Entire agreement


 


This
lease constitutes the entire agreement between the parties in connection with
its subject matter and supersedes all previous agreements or understandings
between the parties in connection with its subject matter.


 


25.7        Statutory provisions


 


The
effect of statutory provisions on this lease are as set out in Item 14.


 


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Schedule 1 – Market Rent
Review


 


In
this Schedule:


 


“Market Review Date” means the commencing date of any lease granted by the Landlord to the
Tenant pursuant to clause 19 of this lease; and


 


“Current Rent”
means the annual market rent of the Premises at the subject Market Review Date,
on the basis of clause S13; and


 


“Valuer or Umpire” means a person satisfying the criteria in clause S3 and appointed as a
valuer or umpire pursuant to this Schedule.


 


S1.          Market reviews of Rent


 


(a)           When agreed or determined in accordance with this Schedule, the Rent is
binding on the parties to this lease.


 


(b)           In this Schedule, a reference to the appointment of a Valuer or an
Umpire means that the Valuer or Umpire accepts is appointment in writing.


 


S2.          Landlord to give notice


 


(a)           The Landlord may at any time in the period commencing 3 months before a
Market Review Date and expiring on the date 6 months after that Market Review
Date, serve on the Tenant a notice reviewing the Rent to an amount which the
Landlord determines to be the annual market rent of the Premises as at the
subject Market Review Date.


 


(b)           Subject to clause S2(e), the amount notified in the Landlord’s Notice
is the Rent on and from the subject Market Review Date unless and until there
is agreement or a determination to the contrary pursuant to this Schedule, at
which time the agreed or determined amount will become the Rent payable on and
from the subject Market Review Date.


 


(c)           Despite sub-clause (b), if the Tenant is deemed to have served notice
in accordance with clause S4, then (on an interim basis) the Rent on and from
the subject Market Review Date will be the Rent current immediately prior to
the subject Market Review Date (such Rent determined as if no abatement or
reduction were in effect).


 


(d)           The Tenant must pay that interim Rent until there is written agreement
or a determination to the contrary under this Schedule.


 


(e)           If the Landlord serves a notice referred to in clause S2(a) after the
date which is 6 months after a Market Review Date then any increase in the Rent
arising from the service of the notice will take effect from the date of
service of the notice and not from the Market Review Date.


 


S3.          Essential qualifications of
Valuer and Umpire


 


(a)           Each Valuer and Umpire must be a person who is a full member of the API
at all times during the appointment under this Lease and who has (at the date
of the appointment) not


 


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less
than 5 years’ practice as a registered valuer valuing industrial premises in
the metropolitan area of the capital city of the State. Any purported
appointment as a Valuer or Umpire of a person not so qualified is ineffective.


 


(b)           In agreeing or determining the Current Rent, each Valuer and Umpire
must act as an expert and not as an arbitrator. Any laws relating to
arbitration do not apply.


 


S4.          Dispute by Tenant of reviewed
amount - Tenant’s Notice


 


(a)           If, within 15 Business Days after service of the Landlord’s Notice, the
Tenant does not serve on the Landlord a notice accepting that the amount
notified in the Landlord’s Notice is the Current Rent, then the Tenant is
deemed to have served on the Landlord on the date 15 Business Days after
service of the Landlord’s Notice, a notice disputing that the amount notified
in the Landlord’s Notice is the Current Rent.


 


(b)           Where the Tenant is deemed to have served on the Landlord a Tenant’s
Notice, the Landlord and the Tenant must try to agree the Current Rent within
10 Business Days after the deemed date of service of the Tenant’s Notice.


 


S5.          Tenant appoints Valuer and
notifies Landlord - first appointment date


 


(a)           If, in circumstances where clause S4(b) applies, the Current Rent is
not agreed under clause S4(b), the Tenant may appoint, within 20 Business Days
after the deemed date of service of the Tenant’s Notice, a Valuer to determine
the Current Rent.


 


(b)           If a Valuer is so appointed by the Tenant, the Tenant must (within the
same 20 Business Days) serve notice on the Landlord naming the Valuer. The date
of service of that notice is the First Appointment Date.


 


S6.          Effect of Tenant’s failure to
appoint or notify


 


(a)           If the Tenant does not appoint a Valuer and serve notice in accordance
with clause S5, the Landlord or the Tenant must then request the President of
the API to: 


 


(i)            promptly appoint (on behalf of the Tenant) a
Valuer to determine the Current Rent; and


 


(ii)           serve notice on the Landlord and the Tenant naming the Valuer.


 


(b)           The date of service of that notice is the First Appointment Date. The Valuer appointed pursuant to this
clause is deemed to be appointed by the Tenant.


 


S7.          Landlord appoints Valuer and
notifies Tenant - second appointment date


 


(a)           The Landlord may appoint, within 10 Business Days after the First
Appointment Date, a Valuer to determine the Current Rent.


 


(b)           If a Valuer is so appointed by the Landlord, the Landlord must (within
the same 10 Business Days) serve notice on the Tenant naming the Valuer. The
date of service of that notice is the Second
Appointment Date.


 


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S8.          Effect of Landlord’s failure to
appoint or notify


 


(a)           If the Landlord does not appoint a Valuer and serve notice in
accordance with clause S7, the Landlord or the Tenant must then request the
President of the API to:


 


(iii)          promptly appoint (on behalf of the Landlord) a Valuer to determine the
Current Rent; and


 


(iv)          serve notice on the Landlord and the Tenant naming the Valuer.


 


(e)           The date of service of that notice is the Second Appointment Date.
The Valuer appointed pursuant to this clause is deemed to be appointed
by the Landlord.


 


S9.          Determination by Valuers


 


(a)           The Valuers appointed by or on
behalf of the Landlord and the Tenant must:


 


(i)            within 10 Business Days of the Second
Appointment Date agree and appoint an Umpire with each other, and


 


(ii)           within 20 Business Days of the Second Appointment Date meet with each
other and try to agree the Current Rent.


 


(b)           If the Valuers agree the Current Rent within 35 Business Days of the
Second Appointment Date, the Valuers (or either of them) must promptly notify
the Landlord and the Tenant in writing of the amount agreed.


 


(c)           If, for any reason, the Valuers do not agree the Current Rent within
those 35 Business Days, the Current Rent must be determined under clause S10.
The Valuers are deemed not to have agreed the Current Rent if notification is
not given in accordance with sub-clause (b) to the Landlord and the Tenant
within 40 Business Days of the Second Appointment Date.


 


S10.        Determination by Umpire if
Valuers do not agree


 


(a)           If the Valuers do not agree (or are deemed not to have agreed) under
clause S9, either (or both) Valuer(s) must promptly instruct the Umpire agreed
and appointed by them under clause S9(a)(l) to determine the Current Rent.


 


(b)           The Umpire must determine the Current Rent within 20 Business Days of
first being instructed under sub-clause (a) or of being appointed under
sub-clause (e).


 


(c)           In making the Umpire’s determination the Umpire must consider any
written assessment of the Valuers given to the Umpire within 10 Business Days
of first being instructed under sub-clause (a) or of being appointed under
sub-clause (c).


 


(d)           On making a determination of the Current Rent the Umpire must promptly
notify each of the Landlord and the Tenant by notice of the amount determined.


 


(e)           If the Valuers fail to agree and appoint an Umpire under clause
S9(a)(l), if the Umpire is not instructed in accordance with sub-clause (a) or
if any Umpire fails to comply with sub-clauses (b), (c) and (d), then either
Valuer (or both of them) may request the President of the API to promptly
appoint (on behalf of the Landlord and the Tenant) an Umpire to determine the
Current Rent within 20 Business Days of his appointment. The President of the
API must promptly notify the Landlord and the Tenant of the Umpire’s
appointment and the appointment date.


 


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(f)            Sub-clauses (b) to (f) (inclusive) apply to
any Umpire appointed under sub-clause (e).


 


S11.        Adjustment of Rent once agreed or
determined


 


If
the Current Rent agreed or determined exceeds the interim Rent payable under
clause S2(c), the Tenant must pay to the Landlord, within 20 Business Days of
the agreement or determination, the difference between the Current Rent from
the subject Market Review Date and the interim Rent paid since the subject
Market Review Date.


 


S12.        Costs of Valuers and Umpire


 


(a)           Each party must pay all the costs, fees and expenses of the Valuer
appointed by it or on its behalf.


 


(b)           The costs, fees and expenses of the Umpire must be borne by the
Landlord and the Tenant in equal shares.


 


S13.        Criteria for determining the
Current Rent


 


(a)           The annual market rent of the Premises at the subject Market Review
Date must (subject to sub-clause (b)) be determined on the basis of the
following Criteria:


 


1.             Comparable rents: rents as at the Market Review Date in respect
of any comparable premises;


 


2.             Use of Premises: the Permitted Use as at the Market Review Date;


 


3.             Condition of Premises: any adverse effect on the condition or rental
value of the Premises arising out of a breach of this Lease by the Tenant is
deemed not to have occurred;


 


4.             Period between reviews: the period which will elapse between the
Market Review Date and the next Market Review Date (if any);


 


5.             Length of Term: the length of the whole of the Term, to the
intent that the fact that part of the Term may have elapsed as at the Market
Review Date must not be taken into account;


 


6.             Destruction or damage: that if the Premises or any other part of the
Building has been destroyed, damaged or rendered inaccessible, they are deemed
to have been fully repaired and restored;


 


7.             Option for further term: that the value to a Tenant of any option(s)
for a further term expressed in this Lease must be taken into account;


 


8.             Goodwill: that the value of any goodwill attached to
the Premises due to the Tenant’s occupation of or business in the Premises must
not be taken into account;


 


9.             Sub-lettings: that rents in respect of any sub-letting of
or concessional occupational arrangement in respect of the Premises or any
comparable premises must not be taken into account;


 


10.           Tenant’s fixtures: that the value of the Tenant’s Equipment must
not be taken into account;


 


11.           Willing but not anxious: that this Lease is in place and is between a
willing but not anxious landlord and a willing but not anxious tenant enjoying
or entitled to


 


37





















 


enjoy
actual possession of the whole of the Premises as at the Market Review Date;
and


 


12.           Ready for occupation: that the Premises are ready for immediate
occupation and use.


 


(b)           Despite any other provision of this Schedule, any person may take into
account any other criteria which may, in that person’s opinion (and having
regard to current best practice adopted by the API), be relevant to his
determination of the annual market rent of the Premises as at the subject
Market Review Date, but must not take into account anything (including, in the
case of the Umpire, any written assessment of a Valuer) which is not consistent
with the Criteria listed in sub-clause (a) (which are in random order and no
significance or priority is to be attached to that order).


 


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