Retail Shop Lease - AUNSWRECM009

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BLACK = Old Item/Clause  | RED = New Item/Clause | BLUE = Comments About Change (Not Part of Form) | STRIKEOUT = Wording Deleted

 

22 Oct 2018 v2.4

Additions / Changes:

 

Clause 18.4

On the giving of 2 days notice to the Lessee, the Lessor may at reasonable times enter the Retail Shop for the purpose of:

(1)

inspecting the Retail Shop; or

(2)

viewing works or repairs to the Retail Shop; or

(3)

performing any building or other repair work in accordance with Clause 18.3(4) and 18.3(5) or those works that the Lessee has failed to complete in accordance with Clause 19.1(9); or

(4)

carrying out works required of the Lessee under any act, rule, regulation or by-law; or

(5)

providing any services for the Lessee or other tenants of the Centre; or

(6)

in the case of a proposed sale or reletting of the Retail Shop:


(a)

showing the Retail Shop to prospective purchasers or tenants; and/or


(b)

erecting sale or lease signage at the Retail Shop.

 

02 Aug 2018 v2.3

Additions / Changes:

 

Item 2

Name:     ………………………………………………………………………………………………………………

Address:  …………………………………………………………………………… ACN: .………………………..

              …………………………………………………………………………… ABN: .………………………..

Phone:    (…)………………………… Fax: (…)…………………………  Mobile: ………………………………

Email:     ……………………………………………………………………… Contact: ……………………………

 

Item 3

Name:     ………………………………………………………………………………………………………………

Address:  …………………………………………………………………………… ACN: .………………………..

              …………………………………………………………………………… ABN: .………………………..

Phone:    (…)………………………… Fax: (…)…………………………  Mobile: ………………………………

Email:     ……………………………………………………………….……………….. GST Registered: Yes/No

Solicitor / Self Acting: ………………………………………………………………………………………………

Address:  ……………………………………………………………………………………………..…………….....

Phone:    (…)………………………… Fax: (…)…………………………  Mobile: ………………………………

Email:     ……………………………………………………………………… Contact: ……………………………

 

Item 4

Name:     ………………………………………………………………………………………………………………

Address:  …………………………………………………………………………… ACN: .………………………..

              …………………………………………………………………………… ABN: .………………………..

Phone:    (…)………………………… Fax: (…)…………………………  Mobile: ………………………………

Email:     ……………………………………………………………….……………….. GST Registered: Yes/No

Solicitor / Self Acting: ………………………………………………………………………………………………

Address:  ……………………………………………………………………………………………..…………….....

Phone:    (…)………………………… Fax: (…)…………………………  Mobile: ………………………………

Email:     ……………………………………………………………………… Contact: ……………………………

 

Item 5

5.1

Name:     ……………………………………………………………………………………………………

Address:  ……………………………………………………………………………………………………

ABN:       …………………. Phone: (…)……………… Fax: (…)………..…… Mobile: ……………..

Email:     ……………………………………………………………………………………………………

5.2

Name:     ……………………………………………………………………………………………………

Address:  ……………………………………………………………………………………………………

ABN:       …………………. Phone: (…)……………… Fax: (…)………..…… Mobile: ……………..

Email:     ……………………………………………………………………………………………………

 

Clause 36.1

Throughout the Lease Term at its’ sole cost, the Lessee must in its name and noting the Landlords interest obtain the following insurances:

(1)

Property: all stock, furnishings, plant and equipment including fixtures and improvements owned or installed by the Lessee in the Retail Shop insured against loss or damage including fire with standard extension coverage for not less than 90% replacement cost;

(2)

Public Liability: in the amount specified in Item 16 or such other amount as reasonably specified by the Lessor;

(3)

Plate Glass: all plate glass including frames forming part of the boundary walls of the Retail Shop for reinstatement;

(4)

Business Interruption: business interruption insurance in an amount sufficient to reimburse the Lessee for loss of earnings; and

(5)

General: any other form or forms of insurance reasonably required by the Lessor from time to time.

 

Clause 36.2

The Lessee will ensure that all insurance policies required by the Lessee under this Lease:

(1)

have been approved by the Lessor; and

(2)

are taken out in the joint names of the Lessor and the Lessee for their respective rights and interests.

(2)

are at all times current and cover the agreed risks in accordance with Item 16 and contain conditions acceptable to the Lessor and the Lessor’s insurer.

 

19 Feb 2018 v2.2

Additions / Changes:

 

Clause 1.1(35)

Related Document: means any written communication (including Notices), with regard to this matter, between the parties, including any Electronic Documents.

 

Clause 54

Related Documents / Notices / Electronic Communication

54.1

The parties agree and confirm any documents and communications in relation to this Lease may be forwarded electronically in accordance with this clause and where this document has been forwarded electronically (either for signing or otherwise) the party receiving the document confirms having consented to the delivery of the document (and any other materials) by way of the electronic means of delivery before receiving the documentation.

54.2

Any Related Document, including this Lease, to be served on any party under this Lease shall be in writing and may be served on that party:


(1)

by delivering it to the party personally; or


(2)

by leaving it for the party at that party’s address as stated in this Lease the Item Schedule; or


(3)

by posting it to the party by ordinary mail or security mail as a letter addressed to the party at the address as stated in this Lease the Item Schedule; or


(4)

by as an electronic communication by facsimile transmission, email or SMS text message to the party at the appropriate email electronic address as stated in this Lease the Item Schedule; or


(5)

by delivery to the other party’s solicitor’s; or


(6)

by delivery to an alternative address, provided in writing by the party, by any of the methods outlined in Clauses 54.2(1) to (5) above.

54.3

A Related document posted shall be deemed to have been served, unless the contrary is shown, at the time when, by the ordinary course of post, the Related document would be delivered.

54.4

A Related document sent by electronic communication will be deemed to have been received in accordance with section 13A of the Electronic Transactions Act 2000 (NSW).

54.5

Related Documents given by a party's solicitor will be deemed to have been given by and with the authority of the party.

54.6

Related Documents must be served before 5pm on a Business Day, failing which, such Related document will be deemed to have been served on the next Business Day.

54.7

The parties acknowledge and agree an Electronic Document readily accessible via a link within a Related Document is received when the Related Document is served and will be opened when the Related Document is opened.

54.8

The parties agree to execution, delivery and service of Related documents electronically by a method provided by DocuSign or such other agreed electronic signing service provider.

54.9

Notice in respect to terminating periodic leases shall take effect from the date of service subject to providing the required length of notice.

 

01 Jul 2017 v2.1

Additions / Changes:


All instances of 'Lease Contract' have been changed to 'Lease'.


Title

RETAIL SHOP LEASE

(Suitable for a Lease of 3 years or less including the term of any option/s)

(if using for a longer term, additional legal advice should be sought)

(THIS LEASE CONTRACT CONSISTS OF PAGES 1 TO 14 AND ANY ATTACHMENTS)


Important Notes

section 9

The Lessor must not negotiate or offer to enter into a Retail Shop Lease unless the Lessor has and makes available a copy of the proposed Retail Shop Lease and (if applicable) a copy of the Retail Tenancy Guide available to any prospective Lessee as soon as that person enters into negotiations concerning the Lease.

section 11

A Lessor Disclosure Statement must, in accordance with the Act, be given to the Lessee at least 7 days before the Lease (or agreement to lease) is entered into. Failure to comply with section 11(1) may allow the Lessee to terminate the Lease.

section 11A

A Lessee Disclosure Statement must be given to the Lessor no later than 7 days after the Lessee receives the Lessor’s Disclosure Statement in accordance with the Act. - See Clause 19.1(12) herein.

section 15

If the Lease Contract is not to be registered The Lessor will must provide the Lessee with an executed copy of the stamped Lease within 31 months after the Lease is returned to the Lessor or the Lessor’s lawyer or Agent following its execution by the Lessee. of stamping or if registered, 1 month after return of the document from registration.

section 16

If the term of a Retail Lease is more than 3 years the Lessor must register the Lease in accordance with the Real Property Act 1900.

For a Lease of less than 5 years (including an option) a certificate under Section 16(3) must be completed.  (See Page 15 herein)


Item 2

Name:    ……………………………………………………………………………….………………………….......

Address: ……………………………………………….………………………… ACN: ……………………………

             …………………………………………………………….………....... ABN: ……………………………

Phone:    (…)………………………… Fax: (…)…………………………… Mobile: ………………………………

Email:     …………………………………………………… Contact: ……….............................. Notices*: __


Item 3

Name:     ………………………………………………………………………………………………………………

Address: ………………………………………..……………………………...... ACN: ……………………………

             ………………………………………..……………………………...... ABN: …………………………….

Phone:    (…)………………………… Fax: (…)…………………………… Mobile: ………………………………

Email:     ………………………………………………………………... GST Registered: Yes/ No Notices*: __

 

Solicitor/Self Acting: ………………………………………………………………………………………………..

Address: ……………………………………………………………………………………………………………….

Phone:    (…)………………………… Fax: (…)…………………………… Mobile: ………………………………

Email:     …………………………………………………… Contact: ……….............................. Notices*: __


Item 4

Name:     …………………………………………………………………………………..  DOB: ...... / ...... / ......

Address: ………………………………………..……………………………...... ACN: ……………………………

             ………………………………………..……………………………...... ABN: …………………………….

Phone:    (…)………………………… Fax: (…)…………………………… Mobile: ………………………………

Email:     ………………………………………………………………... GST Registered: Yes/ No Notices*: __

 

Solicitor/Self Acting: ………………………………………………………………………………………………..

Address: ……………………………………………………………………………………………………………….

Phone:    (…)………………………… Fax: (…)…………………………… Mobile: ………………………………

Email:     …………………………………………………… Contact: ……….............................. Notices*: __


Item 5

5.1

Name:     ……………………………………………………………………………………………………….

Address:  ………………………………………………………………………………………………………

Phone:    (…)……………………… Fax: (…)………………………… Mobile: ………………………….

Email:     ……………………………………………………............................................ Notices*: __

5.2

Name:     ……………………………………………………………………………………………………….

Address:  ………………………………………………………………………………………………………

Phone:    (…)……………………… Fax: (…)………………………… Mobile: ………………………….

Email:     ……………………………………………………............................................ Notices*: __


Item 6

Land Description: Lot No.: ………….... on Plan  ………..…… Title Reference: ……………………………

Retail Shop Premises Description: Shop No: ………………… Plan attached showing leased Retail Shop Premises: __ Yes  __ No

Location of Building / Centre: ………………………………..………………………………………………………

                                          ………………………………..………………………………………………………

Area of Retail Shop: ……………………m²               Lettable Area of Building /Centre: ……….………… m²    

Lessor’s included fittings and fixtures:

 

 


Item 17 Note

OPTION TO RENEW LEASE

(Note: the Lessee should obtain professional legal advice regarding registration of a Lease containing an option renewed lease)


Item 24

Prior to signing this Lease each party should obtain independent legal advice as to this Lease.

Any additions, alterations or deletions by way of Special Conditions or otherwise to the printed Terms and Conditions of this Lease should be inserted in Item 23. Prior to doing so, each party should seek independent legal advice.

The Lessor and Lessee agree to be bound by this Lease which also includes conditions implied by sections S84 and S85 of the Conveyancying Act 1919 unless modified or amended by this Lease.

The Lessee acknowledges having received: a draft of this Lease Contract and a Disclosure Statement not less than 7 days prior to signing this Lease Contract and having had the opportunity to read this Lease Contract:

(1)

in accordance with section 9 of the Act a copy of the proposed Retail Shop Lease and (if applicable) a copy of the Retail Tenancy Guide; and

(2)

a Disclosure Statement not less than 7 days prior to signing this Lease.


Item 25

SCHEDULES AND ATTACHMENTS

List any schedules and attachments not otherwise referenced in this Item Schedule:

 

 


Clause 1.1(13

Director-General: the Director-General of the Department of State and Regional Development.


Clause 1.1(13)

Electronic Document: means any electronic communication (including Notices) as defined in the Electronic Transactions Act 2000 (NSW) including any electronically generated document situated on an external server readily accessible via a link within an electronic communication or other electronically generated document.


Clause 1.1(30)

Outgoings: fees and expenses incurred by the Lessor with respect to the Land and Building including:

(1)

periodic charges and levies including premiums and all state and local council rates and charges and levies, charged to the owner in respect of the Land and Buildings including water, sewerage and drainage rates and charges, land tax and general rates.

(2)

periodic charges and levies charged to the owner in respect to the Land and Buildings including insurance premiums.

(2)

all reasonable fees and expenses directly attributable to the management, operation, maintenance or repair of the building in which the Retail Shop is located or any areas used in association with any such building.


Clause 1.1(34)

Registered Company Auditor: as defined in section 59 of the Corporations Act 2001 (Cth).


Clause 1.1(35)

Related Document: means any written communication (including Notices), with regard to this matter, between the parties including any Electronic Documents.


Clause 1.1(36)

Relocation Notice: a written notice of relocation giving details of an alternative retail shop premises within the Centre to be made available to the Lessee in accordance with Clause 22 herein.


Clause 1.1(40)

Retail Shop: the retail shop Premises more particularly described in Item 6 (includes, where applicable, the external façade thereof, plant and equipment and fixtures and fittings, more particularly listed in the Lessor’s Disclosure Statement provided in accordance with the Act).


Clause 1.1(43)

Secretary: the Secretary of the Department of Industry, Skills and Regional Development.


Clause 1.1(44)

Security Bond: a cash bond or bank guarantee in the amount as set out in Item 19 and thereafter, equivalent to the rental for the number of weeks/months stated in Item 19.


Clause 1.1(49)

Turnover Records: all necessary records to enable the Lessee to produce the statements certificates required under Clause 6.2 and 6.3 and to enable a Registered Company Auditor to determine the Lessee’s Turnover.


Clause 9.1(4)

any other reasonable costs incurred in relation to this Lease (unless excluded by the Act) including responding to a request of the Lessee for a variation or amendment of the Lease or the Lessor’s consent to a sublease (Clause 31) or licence.


Clause 15

15.1

Where the Rent is to be adjusted, on the Review Date (which in the case of an Option will be the Term Commencement Date) using the Current Market Rent the New Rent shall be the amount determined as follows:

 

(1)

either the Lessor and Lessee may on or before the Review Date give to the other a written notice proposing the Current Market Rent for the new Rental Year which if agreed to will be the New Rent for the Retail Shop Premises for the Rental Year commencing from the Review Date; or

 

(2)

if the Lessor and Lessee cannot agree on the Current Market Rent within 1 month after the Review Date the Current Market Rent is to be determined by a Specialist Retail Valuer agreed by the Lessor and Lessee, or failing agreement, nominated by the Registrar Tribunal in accordance with the Act.

15.2

(1)

In making a determination of the Current Market Rent, the Specialist Retail Valuer will take into account the provisions of Section 19 (1) (a), (c) and (e) of the Act and the Specialist Retail Valuer’s decision will be binding on all parties.

 

(2)

The New Rent amount determined by the Specialist Retail Valuer will be the Rent payable under the Lease for the Rental Year under review.

15.3

Each party:

 

(1)

will, within 14 days of being requested, provide to the Specialist Retail Valuer any relevant information requested to assist in determining the Current Market Rent and, in relation to the Lessor, in accordance with Section 19(1)(d) of the Act.

 

(2)

may make a written submission to the Specialist Retail Valuer about the Current Market Rent of the Retail Shop.

15.4

The Lessor and Lessee must each pay to the Specialist Retail Valuer one-half of the Valuer’s fee for determining the Current Market Rent of the Retail Shop.


Clause 18.2

On delivery of possession of the Retail Shop the Lessor will ensure the Retail Shop Premises:

(1)

is are clean, safe and fit to occupy

(2)

does comply with state and local authority building regulations

(3)

has have, where required under the Work Health and Safety Regulation 2011 (NSW), a current asbestos register and asbestos management plan

(4)

is insured against all reasonable insurable contingencies in broad cover form (including public liability). Such policies are to be maintained for the Lease Term of this Lease.



Clause 18.3

The Lessor must, so far as it is within the Lessor’s control:

(1)

not do anything which would limit the Lessee’s or its customer’s access to the Retail Shop Premises.

(2)

not unreasonably take action that causes significant disruption to the Lessee’s trading at the Retail Shop Premises.

(3)

not fail to take reasonable steps to prevent significant disruptions to the Lessee’s trading at the Retail Shop Premises.

(4)

promptly carry out repairs of a structural nature

(5)

maintain services for the Retail Shop including amenities and other facilities or services used in common with the Lessee, other tenants, visitors and users of the Centre

(6)

keep the Common Areas of the Centre reasonably clean and tidy in conjunction with the Lessee’s Obligations in Clause 19.1(6).

(7)

obtain and maintain, for the Lease Term, the Lessor’s Insurance for the Centre in accordance with Clause 37.

(8)

ensure the Lessee has vacant possession of the Retail Shop.

(9)

issue to the Lessee all relevant tax invoices for receipt of payments made by the Lessee throughout the Lease Term that may be reasonably required to be held for tax purposes by the Australian Tax Office.



Clause 18.4

On the giving of 2 days notice to the Lessee, the Lessor may at reasonable times enter the Retail Shop for the purpose of:

(1)

inspecting the Retail Shop Premises

(2)

viewing works or repairs to the Retail Shop

(3)

performing any building or other repair work in accordance with Clause 18.3 (4) and 18.3 (5) or those works that the Lessee has failed to complete in accordance with Clause 19.1(9)

(4)

carrying out works required of the Lessee under any act, rule, regulation or by-law.

(5)

providing any services for the Lessee or other tenants of the Centre



Clause 19.1

It is the Lessee’s responsibility to:

(1)

make all payments under this Lease, as required, to the Lessor (or to a person nominated by the Lessor in a notice to the Lessee) without set-off, counterclaim, withholding or deduction by the method the Lessor reasonably requires.

(2)

maintain the Retail Shop and all fixtures and fittings and the Lessee’s chattels in a reasonable state of repair without damage or loss (fair wear and tear excepted).

(3)

abide by the Rules and regulations of the Centre in a prompt and proper manner.

(4)

comply with any State and local Government laws and regulations relating to the Centre.

(5)

adhere to the terms of this Lease.

(6)

keep the Retail Shop and immediate surrounds clean and tidy.

(7)

trade between the hours specified in Item 15 except as otherwise permitted by the Lessor.

(8)

notify the Lessor of any defect or damage in or on the Retail Shop or of faulty services immediately when the Lessee becomes aware of such damage or fault.

(9)

make repairs to the Retail Shop Premises in respect to damage caused by the Lessee or resultant upon the Lessee’s neglect or negligence.

(10)

maintain the appropriate licenses or permits, if any, relating to the Lessee’s business and comply with statutes, orders and by-laws relating to the Lessee’s use and occupation of the Retail Shop and Building and promptly notify the Lessor on receipt of any notices or orders in relation to or affecting the Retail Shop Premises.

(11)

carry out works on the Retail Shop which under this Lease are the responsibility of the Lessee in accordance with notice given by the Lessor.

(12)

give the Lessor a Lessee’s Disclosure Statement no later than 7 days after receiving the Lessor’s Disclosure Statement, or within a reasonable time as agreed between the parties.

(13)

not keep pets in the Retail Shop

(14)

keep the Retail Shop free of rodents, termites, cockroaches and other vermin.

(15)

not carry on any offensive trade within the Retail Shop.

(16)

pay to the Lessor any amounts relating to increases in the Lessor’s insurance premiums due to the Lessee’s failure to act in accordance with Clause 26.2(2).

(17)

obtain a certificate in the form attached hereto, from a Solicitor or Conveyancer as provided for in section 16(3) of the Act, where the Lease together with any further term is for a period of less than five years, on or before the signing of this Lease.

(18)

carry on and continue to carry on its business in a fit and proper manner during the term of the Lease or any extension.

(19)

keep the Retail Shop Premises secure at all times

(20)

comply with the safety requirements of the Building and ensure occupational, health and safety requirements are complied with.

(21)

replace all glass in the Retail Shop that is broken during the term of this Lease and also replace and repair where necessary, lights and light fittings, locks and security fittings with items of a similar quality.

(22)

use all utility supplies, plumbing and other services only for the purpose for which they were intended.

(23)

maintain utility supplies and services for the supply of which the Lessee has separate contractual responsibilities. (see also Clause 9.4)

(24)

ensure that its employees, invitees, agents and licensees comply with the Terms and Conditions of this Lease and any Rules relating to it.

(25)

ensure where a product, fixture or fitting provided with the Retail Shop has a warning label or safety instructions attached such label or instruction  is not  defaced, damaged or removed.



Clause 19.2

Except in the case where the Lessor, its Agent or employees have been negligent or have failed to comply with the obligations under this Lease, neither the Lessor, its Agent or employees will be liable for any loss or damage suffered by the Lessee or other persons on the Retail Shop Premises with respect to person or property.


Clause 24

This Lease may be terminated by the Lessor if the Building or any part of the building in which the leased Retail Shop is situated is proposed to be demolished requiring vacant possession of the Retail Shop in which case this Lease will include section 35 of the Act.


Clause 26.2

The Lessee and/or the Lessee’s Employees must not:

(1)

install any equipment in the Retail Shop that may overload the floors or any services; or

(2)

do or neglect to do anything to or in the Retail Shop which may make void or increase the premium of any insurance on the Retail Shop or any property in them; or

(3)

use the fixtures and fittings within the Retail Shop for any use other than that for which they are intended; or

(4)

carry on any illegal activities or activities which could create a nuisance or interfere with the rights of other tenants or occupiers; or

(5)

not to operate audio equipment at a volume that can be heard external to the Retail Shop Premises; or

(6)

carry out an auction on the Retail Shop Premises; or

(7)

use any chemicals, burning fluids, volatile or explosive substances except in the normal course of the Lessee’s business permitted under this Lease; or

(8)

except in the case of emergency, interfere with any fittings, fixtures or services including air conditioning or fire equipment without first obtaining the Lessor’s consent.



Clause 31

Assignment or Subletting

31.1

The Lessee will not assign, sublet or part with possession of the whole or a part of the Lessee’s interests under this Lease without the Lessor’s written consent.

31.2

The Lessor will not, after having received reasonable notice, unreasonably refuse to grant the Lessee's request to assign the Lease unless:

 

(1)

the proposed assignee/sub-lessee proposes to change the use to which the Retail Shop is put; or

 

(2)

the proposed assignee has financial resources or retailing skills that are inferior to those of the Lessee; or

 

(3)

the Lessee has not complied with section 41 of the Act; or

 

(4)

the Lessee has failed to comply with the Terms and Conditions of this Lease Contract.

 

(4)

the Retail Shop Lease having been awarded by public tender the assignee fails to meet any criteria of the tender.

31.3

The Lessee must provide to the Lessor information as may be reasonably required concerning the proposed assignee’s financial resources standing and retailing skills business experience.

31.4

The Lessee and proposed assignee/sub-lessee will complete all necessary deeds of assignment and covenant required by the Lessor.

31.5

The Lessee will pay the Lessor’s reasonable costs in respect of any legal or other expenses (unless excluded by the Act) incurred in connection with obtaining and granting consent to any assignment or subletting.

31.6

In respect to the whole or any part of the Retail Shop, the Lessor may refuse, in their absolute discretion, to consent:

 

(a)

granting a sublease, licence or concession; or

 

(b)

the Lessee parting with possession.

 

(c)

the Lessee mortgaging or otherwise charging or encumbering the Lessee’s estate or interest in the Lease Contract.

31.6

The Lessor will within 14 days after being requested to do so by the Lessee provide an updated Lessor’s Disclosure Statement in compliance with section 41(d) of the Act.


Clause 32

Sub Lease, Licence and Mortgage

In respect to the whole or any part of the Retail Shop, the Lessor may refuse, in their absolute discretion, to consent to the Lessee:

(1)

granting a sublease, licence or concession.

(2)

parting with possession.

(3)

mortgaging or otherwise charging or encumbering the Lessee’s estate or interest in the Lease.



Clause 33

The Lessee is not entitled to deal with the Lease or other assets of the business on, in or from the leased Retail Shop Premises by way of security or by way of creating a Security Interest, without first having obtained the Lessor’s consent, which consent, is at the sole discretion of the Lessor and may be granted upon such terms and conditions as the Lessor considers reasonable.


Clause 34.1

Security Interest notification

The Lessee must notify the Lessor on or before the Commencement Date if any of the personal property owned or used by the Lessee which will be either located in the Retail Shop Premises or relevant to this Lease is subject to any Security Interest.


Clause 35.2

The Lessee agrees the Lessor may register a Security Interest over any of the personal property (including Security Bond) owned or used by the Lessee which is either located in the Retail Shop Premises or relevant to this Lease.


Clause 39.1

If a requirement for a Security Bond is provided for in Item 19, for the purpose of securing the performance by the Lessee of its obligations under this Lease, the Lessee must:

(1)

give to the Lessor a Security Bond to be lodged with the Secretary Director-General in accordance with section 16C of the Act; or

(2)

arrange for the issue of an unconditional bank guarantee, in favour of the Lessor which does not have an expiry date.



Clause 39.2

On the sale or the transfer of the Lessor’s interest in the Retail Shop Premises, of which the Retail Shop forms a part, the Lessor may assign its right with respect to the Security Bond/ bank guarantee to the purchaser and upon notifying the Lessee and the Secretary Director General the Lessor will be released from all obligations in relation to the Security Bond/ bank guarantee. Where the Security Bond/ bank guarantee is not assignable, the Lessee will cause a replacement to be issued in favour of the purchaser, the reasonable costs of which will be met by the Lessor. Where a replacement Security Bond/ bank guarantee has been issued the original must be released to the Lessee.


Clause 39.5

The Lessor will as soon as practicable not more than 2 months after the end of the Lease Term or any extension of the Lease Term cause to be released, subject to any unsatisfied claim under Clause 39.3, the Security Bond to the Lessee.


Clause 40.2

If the Lessee defaults under this Lease, subject to giving any prior demand or notice required by any law, the Lessor may, without limiting other remedies, including action for damages and/or specific performance:

(1)

re-enter and take possession of the Retail Shop Premises and eject the Lessee and all other persons and this Lease will terminate; or

(2)

by notice to the Lessee, terminate this Lease from the date of giving the notice; and/or

(3)

claim the loss, if any, incurred by the Lessor; and/or

(4)

draw on the funds of any Security Bond held in accordance with Clause 39; and/or

(5)

call upon the Lessee’s Guarantor; or

(6)

by notice, allow the Lease to continue on a periodic basis on the terms and conditions determined by the Lessor, but without prejudice to any rights accruing to the Lessor under this Lease.



Clause 40.4

The following covenants are deemed to be essential: to pay Rent (Clause 5); to pay Outgoings (Clause 7); to only use the Retail Shop Premises for the Permitted Use stated in Item 9; to repair (Clause 19.1(9)); to carry on the business (Clause 19.1(18)); not to make alterations (Clause 20); not to Assign (Clause 31) or Sublet Sub Lease (Clause 32) without the Lessor’s consent (Clause 31); to insure (Clause 36); to comply with all laws and requirements (Clause 48);

A breach of an essential covenant may be treated by the Lessor as a repudiation of this Lease, in which case, the Lessee will compensate the Lessor for all loss or damage suffered by reason of or resulting from the repudiation, including any loss or damage for the unexpired residue of the Lease Term subject to the Lessor having taken reasonable steps to mitigate its loss.


Clause 45

Notice

45.1

Any notice to be served on any party under this Lease Contract shall be in writing and may be served on that party:

 

(a)

by delivering the notice to the party personally; or

 

(b)

by leaving it for the party at the party’s address as stated in Items (3) or (4); or

 

(c)

by posting it to the party, by ordinary mail or security mail as a letter addressed to the party at the address as stated in Item (3) or (4); or

 

(d)

by facsimile to the party’s facsimile number in Item (3) or (4); or

 

(e)

if both parties agree and it is lawful, by electronic transmission to the party at the email address shown for that party in the Item Schedule (refer to Items (3), (4) and (5) of this Lease Contract); or

45.2

A notice so posted shall be deemed to have been served, unless the contrary is shown, at the time when, by the ordinary course of post, the notice would be delivered.

45.3

Notices given or received by a party’s solicitor will be deemed to have been given by and with the authority of the party.

45.4

A Lessor’s Agent shall be authorised as a party and may receive notices in accordance with Clause 45.1 on the Lessor’s behalf if authorised by the Lessor.

45.5

Notices must be served before 5pm on a Business Day, failing which, such Notice will be deemed to have been served on the next Business Day.

45.6

Notice in respect to terminating periodic leases shall take effect from the date of service subject to providing the required length of notice.


Clause 49

Provision of Documents

The parties agree and confirm this Lease Contract may be forwarded electronically if the recipient has provided an address for Electronic Communication in the Item Schedule to this Lease Contract.


Clause 54

Related Documents/Notices

54.1

The parties agree and confirm documents may be forwarded electronically in accordance with this clause.

54.2

Any Related Document, including this Lease, to be served on any party under this Lease shall be in writing and may be served on that party:

 

(1)

by delivering it to the party personally; or

 

(2)

by leaving it for the party at that party’s address as stated in the Item Schedule; or

 

(3)

by posting it to the party by ordinary mail or security mail as a letter addressed to the party at the address as stated in the Item Schedule; or

 

(4)

as an electronic communication by facsimile transmission, email or SMS text message to the party at the appropriate electronic address as stated  in the Item Schedule; or

 

(5)

by delivery to the other party’s solicitor’s; or

 

(6)

by delivery to an alternative address provided in writing by the party, by any of the methods outlined in Clauses 54.2(1) to (5) above.

54.3

A Related Document posted shall be deemed to have been served, unless the contrary is shown, at the time when, by the ordinary course of post, the Related Document would be delivered.

54.4

A Related Document sent by electronic communication will be deemed to have been received in accordance with section 13A of the Electronic Transactions Act 2000 (NSW).

54.5

Related Documents given by a party's solicitor will be deemed to have been given by and with the authority of the party.

54.6

Related Documents must be served before 5pm on a Business Day, failing which, such Related Document will be deemed to have been served on the next Business Day.

54.7

The parties acknowledge and agree an Electronic Document readily accessible via a link within a Related Document is received when the Related Document is served and will be opened when the Related Document is opened.

54.8

The parties agree to execution, delivery and service of Related Documents electronically by a method provided by DocuSign or such other agreed electronic signing service provider.

54.9

Notice in respect to terminating periodic leases shall take effect from the date of service subject to providing the required length of notice.


Clause 55

Safety

Where a product, fixture or fitting provided with the Retail Shop has a warning label or safety instructions attached the Lessee is not to deface, damage or remove such label.


Removed last page - 'Retail Leases Act 1994, Section 16'.

 

16 Jan 2017 v2.0

Additions / Changes:


Item 8

8.1

Annual Rent year one: $....................... incl./excl. GST   <Weekly/Monthly> Monthly: $...................... incl./excl. GST

8.2

Payable: <weekly/monthly> monthly in advance on the ………..…………………… (rent due date)

8.3

Rent payment commencement date: …… / …… / ……

8.4

Rent Payable to: …………………………………………..……………….………………………………



Item 19

__ Security Bond  OR  __ Bank Guarantee OR __ Other form of security: ………………………..………

The sum equivalent to  …………… <weeks/months> months gross rent plus GST.

Being, for the first year $ ……………… including/excluding/plus GST

 

11 Jun 2015 v1.9

Copyright statement updated.

 

01 Mar 2015 v1.8

Additions / Changes:


Various Items in this form have been moved.


Item 3 Title

LESSOR Note: If insufficient room list additional Names and Addresses in Item (23) (Special Conditions)


Item 4

LESSEE Note: If insufficient room list additional Names and Addresses in Item (23) (Special Conditions)

Name: ……………………………………………………..……………………………………DOB:….../..…./…....

Address: ………………………………………………………………………… ACN: …….…….…...…………….

             ……………………………………………………………………...… ABN: …..…………..……………..

Phone:    …………………………..…… Fax: ………………..………………. Mobile: ……….………………….

Email:     ………………………………………………….…………… GST Registered: Yes/ No Notices*: __

 

Solicitor / Self Acting: ……………………………………………………………………………………………...

Address: ……………….…………………………….……………………..………………………………………….

Phone:    …………………………..…… Fax: ………………..………………. Mobile: ……….………………….

Email:     …………………….……………………. Contact: ………………………………………. Notices*: __


Item 20

Provided for Applicable: Yes __ No __ Note: If ‘Yes’, the provisions of Clause 22 (Section 34A of the Act) will apply.


Item 21

Provided for Applicable: Yes __ No __ Note: If ‘Yes’, the provisions of Clause 24 (Section 35 of the Act) will apply.


Clause 1.1(30)

Outgoings: expenses incurred by the Lessor with respect to the Land and Building including:


Clause 1.1(42)

Security Bond: means a bond to secure the amount of money specified a cash bond or bank guarantee in the amount as set out in Item (19) and thereafter, equivalent to the rental for the number of months stated in Item (19).


Clause 1.1(43)

Security Interest: means an interest in personal property provided for by a transaction that, in substance, secures payment or performance of an obligation. See has the meaning given it in accordance with Section 12 of the Personal Property Securities Act 2009 (Cth).


Clause 18.2

On delivery of possession of the Retail Shop the Lessor will ensure the Premises are:

(1)

are clean, safe and fit to occupy

(2)

clean

(2)

in compliance comply with state and local authority building regulations

(3)

have, where required under the Work Health & Safety Regulation 2012, a current asbestos register and asbestos management plan

(4)

insured against all reasonable insurable contingencies in broad cover form (including public liability). Such policies are to be maintained for the Lease Term of this Lease Contract.



Clause 19.2

Except in the case where the Lessor, its Agent or employees have been negligent or have failed to comply with the obligations under this Lease Contract, neither the Lessor, its Agent or employees will be liable for any loss or damage suffered by the Lessee or other persons on the Premises with respect to person or property.


Clause 33

Personal Property Securities

33.1

Security Interest notification

The Tenant must notify the Lessor on or before the Commencement Date if any of the personal property owned or used by the Lessee which will be either located in the Premises or relevant to this Lease Contract is subject to any Security Interest.

33.2

Exclusion of Personal Property Securities Act 2009 (Cth) (PPS Act) provisions.

To the extent the law permits:

 

(a)

the Lessee waives its rights to receive notifications, verifications, statements, disclosures, proposals and any other documentation specified under sections 95, 118, 121(4), 130, 132(3)(d), 132(4), 135 and 157 of the PPS Act;

 

(b)

the Lessor and the Lessee agree that sections 96, 125, 129, 142 and 143 of the PPS Act do not apply to this Lease Contract.


Clause 34

Registration and Release of Security Interest

34.1

Where registration or release of a Security Interest is required each party will do all things reasonably necessary to facilitate such registration or release.

34.2

The Lessee agrees the Lessor may register a Security Interest over any of the personal property (including Security Bond) owned or used by the Lessee which is either located in the Premises or relevant to this Lease Contract.

34.3

The Lessee having complied with its obligations under the Lease Contract and not being otherwise in default the Lessor will release any Security Interest over the Lessee’s personal property at the end of the Lease Term or any extension of the Lease Term.



Clause 37.1(f)

a warning label or safety instructions having been removed, damaged or defaced where a product or fitting has been supplied to the Retail Shop with such a label or instruction attached.


Clause 43.2

An option for a further term of the Lease Contract shall only be granted by the Lessor if the Lessee has complied with the Terms and Conditions of this Lease Contract such that there is no existing or unremedied breach or default at the date of exercise of the option.


Clause 47

In case of disputes either party may serve on the other a notice containing full details of the dispute in which case both parties will use their best endeavors to settle the dispute without recourse to litigation.

Note: Disputes must be submitted to mediation before court proceedings can be commenced in accordance with Section 68 of the Act.


Clause 47

The parties agree and confirm this Lease Contract may be forwarded electronically if the recipient has provided an email address or facsimile number for Electronic Communication in the Item Schedule to this Lease Contract.


Clause 55

Safety

Where a product, fixture or fitting provided with the Retail Shop has a warning label or safety instructions attached the Lessee is not to deface, damage or remove such label.

 

01 Jan 2014 v1.7

Additions / Changes:


Clause 1.1(45)

Tribunal: the Administrative Decisions Civil and Administrative Tribunal of New South Wales established by the Administrative Decisions Tribunal Act 1997 Civil and Administrative Tribunal Act 2013.

 

22 Jun 2012 v1.6

Additions / Changes:


Clause 1.1(43)

Security Interest: means an interest in personal property provided for by a transaction that, in substance, secures payment or performance of an obligation. See Section 12 of the Personal Property Securities Act 2009.


Clause 32

The Lessee is not entitled to deal with the Lease or other assets of the business on, in or from the leased Premises by way of security or by way of creating a security interest, without first having obtained the Lessor’s consent, which consent, is at the sole discretion of the Lessor and may be granted upon such terms and conditions as the Lessor considers reasonable.


Clause 36.1

If a requirement for a Security Bond is provided for in Item (19), for the purpose of securing the performance by the Lessee of its obligations under this Lease Contract, the Lessee must either:

(a)

give to the Lessor a Security Bond in the amount provided for in Item (19), to be lodged with the Director-General in accordance with Section 16C of the Act; or

(b)

arrange for the issue of an unconditional bank guarantee in the amount provided for in Item (19), in favour of the Lessor which does not have an expiry date


for the purpose of securing the performance by the Lessee of its obligations under this Lease Contract.


Clause 36.2

On the sale or the transfer of the Lessor’s interest in the Premises, of which the Retail Shop forms a part, Building the Lessor may assign its right with respect to the Security Bond/ bank guarantee to the purchaser and upon notifying the Lessee and the Director General the Lessor will be released from all obligations in relation to the Security Bond/bank guarantee. Where the Security Bond/ bank guarantee is not assignable, the Lessee will cause a replacement to be issued in favour of the purchaser the reasonable costs of which will be met by the Lessor. Where a replacement Security Bond/bank guarantee has been issued the original Security Bond must be released to the Lessee.


Clause 36.5

The Lessor will as soon as practicable after the end of the Lease Term or any extension of the Lease Term, cause to be released, subject to any unsatisfied claim under Clause 36.3, the Security Bond to the Lessee.


Clause 47

The parties agree and confirm this Lease Contract may be forwarded electronically if the recipient has provided an email address or facsimile number, for delivery or service of documents, in the Item Schedule to this Lease Contract.

 

30 Jan 2012 v1.5

Additions / Changes:


Important Notes

Section 9

A person must not, as The Lessor must not offer to enter into a Retail Shop Lease unless the Lessor has that person has possession of a copy of the proposed Retail Shop Lease and makes a copy of the proposed Retail Shop Lease and (if applicable) a copy of the Retail Tenancy Guide available to any prospective Lessee as soon as that person enters into negotiations concerning the Lease Contract. – See Clause 17.3 (10) herein.

Section 11

A Lessor Disclosure Statement must, in accordance with the Act, be given to the Lessee at least 7 days before the Lease Contract is entered into. – See Clause 17.3 (10) herein Failure to comply with Section 11(1) may allow the Lessee to terminate the Lease Contract.

Section 11A

A Lessee Disclosure Statement must be given to the Lessor no later than 7 days after the Lessee receives the Lessor’s Disclosure Statement in accordance with the Act. - See Clause 19.1(12) herein.

Section 15

If the Lease Contract is not to be registered the Lessor will provide the Lessee with an executed copy of the stamped Lease Contract within 1 month of stamping or if registered, 1 month after return of the document from registration.

Section 16

For a Lease of less than 5 years (including an option) a certificate under Section 16(3) must be completed.  (See Page 15 herein)


Item 2

Email: …...........................………………………… Contact:………....................................  Notices*: __


Item 5

Land Description:  Lot No.: ……….……  on Plan ………………  Title Reference: ……………………………

Premises Description:  Shop No: ……………… Plan attached showing leased Premises: __ Yes  __ No

Location of Building / Centre: ……..…………………..……………………………………………………………….

                                         ……..……………………………….…………………………………………………..

Area of Retail Shop: ……………………m²              Lettable Area of Building /Centre: ……….………… m²    

Lessor’s included fittings and fixtures:

 


Item 7

Option to renew given: Yes __  No __     Number of Options: ………………..............................………..

7.1

(1) First Option Term: ………………………………  Commencement Date:…………………...…………

(2) Rental Year one:

    __ Current Market Rent (see Clauses 15) OR  __ Other (insert as a Special Condition)

(3) Rental increase payable pending determination: ………………% (See Clause 41.5)

(4) Annual Rent Reviews: (in accordance with Clause 41.6)

(5) Period in which to notify exercise of the option:

    From: ……………………………………  To:……………………………………… (Final Option Date)

7.2

(1) First Option Term: ………………………………  Commencement Date:…………………...…………

(2) Rental Year one:

    __ Current Market Rent (see Clauses 15) OR  __ Other (insert as a Special Condition)

(3) Rental increase payable pending determination: ………………% (See Clause 41.5)

(4) Annual Rent Reviews: (in accordance with Clause 41.6)

(5) Period in which to notify exercise of the option:

    From: ……………………………………  To:……………………………………… (Final Option Date)



Item 8

8.1

Annual Rent year one: $.................... incl./ excl. GST  Monthly: $................... incl./ excl. GST

8.2

Payable: monthly in advance on the ………..…………………….. (rent due date) day of each month.

8.3

Rent payment commencement date: ……../……./…….

8.4

Rent Payable to: …………………………………………..……………….…………………………………..



Item 11

Payable by Lessee:  Yes __  No __  (If ‘yes’ refer to the attached Lessor’s Outgoings Statement)

11.1

Outgoings in addition to those specified in Clause 1.1(30): (see attached Outgoings Schedule if insufficient room)

1) ……………………...……...…………..…..……  3) ………………………...………...……..…..……

2) ……………………………......………..…..……  4) …………………………...…...………..…..……

11.2

Lessee’s Proportion of Outgoings payable by Lessee: (tick one of the following)

      __ .…..% of Outgoings    

OR  __ …...% of increases in Outgoings above the Base Year Outgoings where Base Year is 20__

11.3

In relation to Outgoings which benefit the lettable area of the Lessee’s & other Premises and part but not the whole of the lettable area of the Building: …………………….%



Item 18

18.1

Name:    …….………………………………………….……..……………………………………………….

Address: …….…………………………….……………………..…………………………………………….

ABN: …………..…… Phone: ………………… Fax: …………..………. Mobile: ……………….……...

Email: ……………………………………………………………………………….…………… Notices*__

18.2

Name:    …….………………………………………….……..……………………………………………….

Address: …….…………………………….……………………..…………………………………………….

ABN: …………..…… Phone: ………………… Fax: …………..………. Mobile: ……………….……...

Email: ……………………………………………………………………………….…………… Notices*__

Bank Guarantee or other form of security …………………………..……………………………………

Amount Year One:……………….……………..or equivalent to………………….…………months rent.



Item 19

__ Security Bond  OR __ Bank Guarantee OR __ Other form of security: ………………..……………………

The sum equivalent to  ………......…… months gross rent plus GST.

Being, for the first year $ ……………....… including/excluding/plus GST


Item 22

Provided: __ Yes __ No  Number allocated: ……………………………… Licence Agreement: __ Yes __ No

Designated Parking Space/s (location): …………….…………..………………………………….……………….

Car Park Opening Hours: ………………………………………………………..……………………………………


Item 24

Prior to signing this Lease Contract each party should obtain independent legal advice as to this Lease Contract.

Any additions, alterations or deletions by way of Special Conditions or otherwise to the printed Terms and Conditions of this Lease Contract should be inserted in Item (23) above. Prior to doing so, each party should seek independent legal advice.

The Lessor and Lessee agree to be bound by this Lease Contract which also includes conditions implied by S84 and S85 of the Conveyancying Act 1919 unless modified or amended by this Lease Contract.

The Lessee acknowledges having received a draft of this Lease Contract and a Disclosure Statement not less than 7 days prior to signing this Lease Contract and having had the opportunity to read this Lease Contract.


Clause 1.1(1)

Accounting Period: each 12 month period (or part thereof depending upon the Lease Commencement Date and termination dates) of the Lease Contract) during the term of this Lease Contract commencing on the 1st July and ending on the 30th June next. which ends on the 30th June.


Clause 1.1(9)

Common Areas: the areas in or adjacent to the Building under the control of the Lessor used or intended for use:

(a)

by the public; or

(b)

in common by the tenants of premises in the Building.


areas of the Land or Buildings provided by the Lessor for common use.


Clause 1.1(11)

Core Trading Hours: the hours during which times when Retail Shops in the Centre are required to be open for business.


Clause 1.1(12)

Date of Lease Contract: the date as set out in Item (1) of the Item Schedule unless otherwise specified.


Clause 1.1(14)

Early Determination Period: means the period beginning 6 months before the Final Option Date (Item 7.4) and ending 3 months before the Final Option Date, during which period the Lessee is entitled to request a determination of the Current Market Rent provided the Lessor and Lessee have not already agreed as to what the actual amount of the Rent is to be.


Clause 1.1(14)

Final Option Date: means the date stated in Item (7.1 (5)) and (7.2(5)) of the Item Schedule as the (last) date by which the Lessee, if the Lessee intends to exercise the option, must exercise it.


Clause 1.1(17)

Guarantor: the individual, company or other entity referred to in Item (18) of the Item Schedule.


Clause 1.1(18)

Item:  means items detailed in the Item Schedule of this Lease Contract


Clause 1.1(19)

Land: Land upon which the Building is constructed or Land used by the Lessor in connection with the Building of which the leased Retail Shop forms a part.


Clause 1.1(21)

Lease Term: the period of time set out in Item (6) of the Item Schedule.


Clause 1.1(25)

Lessee’s Proportion: means that proportion of the Outgoings specified as a percentage in Item (11.2) of the Item Schedule.


Clause 1.1(33)

Redecorate: includes:

(1)

washing down the exterior and the interior of the Retail Shop

(2)

treating as previously treated all internal and external surfaces of the Retail Shop by painting, staining, polishing or otherwise to a reasonable specification approved by the Lessor

(3)

replacing all carpet and/or floor tiles which in the opinion of the Lessor are worn or damaged and in need of replacement.



Clause 1.1(36)

Rent: means the amount the Lessee agrees to pay stated in Item (8) of the Item Schedule as reviewed from time to time.


Clause 1.1(39)

Retail Shop: the Premises more particularly described in Item (5) of the Item Schedule (includes, where applicable, the external façade thereof, plant and equipment and fixtures and fittings, more particularly listed in the Lessor’s Disclosure Statement provided in accordance with the Act).


Clause 1.1(40)

Review Date: the date referred to in Item (10) of the Item Schedule. each annual anniversary of the Lease Commencement Date including, where an option has been exercised, the Commencement Date of the New Term.


Clause 1.1(42)

Security Bond: means a bond to secure the amount of money specified in Item (19) of the Item Schedule.


Clause 2.1(2)

‘person’ or ‘party’ includes a firm, body corporate or corporation and includes that person’s or party’s executors, administrators, successors and assigns.


Clause 2.1(5)

column notes in the Item Schedule and or any attached addendum pages and supporting documents or annexures in relation to the Lease shall form part of this Lease Contract.


Clause 2.1(6)

unless otherwise stated, if the Lessor’s consent or approval is required it may be granted or withheld at the Lessor’s discretion and will not be effective unless in writing and then only to the extent of that consent right.


Clause 4.3

To remain in occupation after the Lease Expiry Date the Lessee must obtain the Lessor’s consent not less than one month prior to that date.


Clause 5.1

The Lessee agrees to pay the Rent (as directed by the Lessor) monthly in advance as on the day specified in Item (8.1).


Clause 5.4

Until determination of the New Rent in accordance with the provisions of the Review Type chosen in Item (10) of the Item Schedule, the Lessee will continue to pay the Rent applicable for the Rental period immediately preceding the Review Date.


Clause 6.1

Where, in accordance with Item (9) of the Item Schedule, additional Rent is calculated as a percentage of the Lessee’s Turnover, the Lessee must pay the Turnover Rent calculated using the formula specified in Item (9) to the Lessor. Such rental is to be paid by equal monthly installments in arrears on the Rent due date.


Clause 6.3

Within 30 Business Days of the end of each Rental Year, the Lessee must deliver by statutory declaration to the Lessor a statement of the Lessee’s Turnover certified by a Registered Company Auditor.


Clause 7.1

This Clause 7 shall apply if the Lessee is required to pay Outgoings in accordance with Item (11) of this Lease Contract.


Clause 7.5

The Lessee must pay the Lessor the Lessor’s proportion of the Outgoings as calculated in accordance with Item (11.2) of the Item Schedule by equal monthly installments in advance on the same day and in the same manner as the Lessee is required to pay Rent.

 

Clause 7.6

Should land tax form part of Outgoings for which the Lessee is liable, land tax will be calculated as if the Land was the only land owned by the Lessor in New South Wales.

 

Clause 7.7

Within 1 month of the Lessee receiving an Outgoing Statement from the Lessor, any necessary adjustment between the estimated and the actual Outgoings payable by the Lessee must be made and any refund or further payment must be paid made by the relevant party.

 

Clause 8.2

Interest due will not be payable until notice is given to the Lessee by the Lessor in respect to monies owed.

 

Clause 9.1

It is the Lessee’s responsibility to pay to the Lessor, when requested, the costs and expenses incurred throughout the term of this Lease Contract in particular relating to the following:

(1)

amounts spent by the Lessor for fitting out the Retail Shop not exceeding the Lessor’s agreed maximum expenditure outlined in Item (17) of the Item Schedule.

(2)

survey fees associated with the registration of the Lease Contract.(2)

(2)

any duty relating to the Lease Contract

(3)

lease registration costs relating to the Lease Contract

(4)

any other reasonable costs incurred in relation to this Lease Contract (unless excluded by the Act) including responding to a request of the Lessee for a variation or amendment of the Lease Contract (Clause 18.1 (18)) or the Lessor’s consent to a sublease (Clause 31) or license.


 

Clause 9.2

It is the Lessee’s responsibility to make payment by the specified due date, to any service provider contracted by the Lessee for services provided supplied to the Retail Shop independent of the Lessor’s responsibilities.

 

Clause 9.3

Should the Lessee trade for any period outside the Business Trading Hours specified in Item (15), any additional costs for services supplied during that time will be advised by the Lessor and payable by the Lessee.

 

Clause 10.2

The Lessee must pay the Annual Fee set out in Item (12) of the Item Schedule by equal monthly installments in advance on the Rent due date.

 

Clause 11.1

The Lessee is required to pay to the Lessor the GST amount for a taxable supply made to the Lessee under this Lease Contract on provision by the Lessor of a valid tax invoice.

 

Clause 11.2

The Lessee is required to pay to the Lessor the GST amount for a taxable supply made to the Lessee under this Lease Contract on provision by the Lessor of a valid tax invoice.

 

Clause 12.1

The Lessor will issue tax invoices when necessary in respect of all monies owing by the Lessee to the Lessor.

 

Clause 13

Rent will be reviewed once in each Rental Year on the Review Date using only one Review Type.

 

Clause 15.1

Where the Rent is to be adjusted, on the Review Date (which in the case of an Option will be the Term Commencement Date) using the Current Market Rent the New Rent shall be the amount determined as follows:

(a)

either the Lessor and Lessee may on or before the Review Date give to the other a written notice proposing the Current Market Rent for the new Rental Year which if agreed to will be agree on a Current Market Rent for the Retail Shop for the New Rent for the Premises for the Rental Year commencing from the Review Date; or

(b)

if the Lessor and Lessee cannot agree on the Current Market Rent within 1 month after the Review Date the Current Market Rent is to be determined by a Specialist Retail Valuer agreed by the Lessor and Lessee, or failing agreement, nominated by the Tribunal in accordance with the Act.


 

Clause 15.2

(1)

in making a determination of the Current Market Rent, the Specialist Retail Valuer will comply with take into account the provisions of Section 19 (1) (a), (c) and (e) of the Act and the Specialist Retail Valuer’s decision will be binding on all parties.

(2)

the New Rent amount determined by the Specialist Retail Valuer will be the Rent payable under the Lease Contract for the Rental Year under the review.


 

Clause 15.3

The Lessor and Lessee must each pay to the Specialist Retail Valuer one-half of the Valuer’s fee for determining the Current Market Rent of the Retail Shop.

 

Clause 15.4

The Lessor and Lessee must each pay to the Specialist Retail Valuer one-half of the Valuer’s fee for determining the Current Market Rent of the Retail Shop.

 

Clause 18.3

The Lessor must, so far as it is within the Lessor’s control: It is the Lessor’s responsibility to:

 

Clause 18.3(1)

not do anything which would limit the Lessee’s or its customer’s access to the Premises.

 

Clause 18.3(2)

not unreasonably take action that causes significant disruption to the Lessee’s trading at the Premises.

 

Clause 18.3(3)

not fail to take reasonable steps to prevent significant disruptions to the Lessee’s trading at the Premises.

 

Clause 18.3(6)

keep the Common Areas of the Centre reasonably clean and tidy in conjunction with the Lessee’s Obligations in Clause 19.1(6).

 

Clause 18.3(7)

obtain and maintain, for the Lease Term, the Lessor’s Insurance for the Centre in accordance with Clause 34.

 

Clause 18.3(10)

supply a copy of the proposed Lease, the Lessor Disclosure Statement and a copy of the Retail Tenancy Guide to the Lessee at least 7 days prior to entering into this Lease Contract in accordance with Sections 9 & 11(1) respectively of the Act.

Note: Failure by the Lessor to comply with Section 11 (1) of the Act allows the Lessee to terminate the Lease Contract in accordance with Section 11(2) of the Act unless Section 11(3) of the Act prevents such termination.

 

Clause 18.3(11)

within 30 days after the Lease Contract is signed by the parties (subject to payment of Stamp Duty and Mortgagee Consent), the Lessor must give the Lessee a certified copy of the signed Lease Contract.

 

Clause 18.3(12)

serve upon the Lessee written notice of any defect, requiring the Lessee to make repairs in accordance with any covenant expressed or implied in this Lease Contract.

 

Clause 18.4(1)

inspecting the Premises

 

Clause 18.7

The Lessor has full authority to and may from time to time establish and enforce Rules and regulations relating to the management of for the Centre including fixtures, fittings, services and vehicular access and parking providing such rules and regulations are not inconsistent with the Lessee’s rights under the Lease Contract or the Act and are communicated to the Lessee in writing. including the Common Areas.

 

Clause 19.1(3)

abide by the Rules and regulations of the Centre in a prompt and proper manner.

 

Clause 19.1(7)

trade between the hours specified in Item (15) except as otherwise permitted by the Lessor.

 

Clause 19.1(9)

make repairs to the Premises in respect to damage caused by the Lessee or resultant upon the Lessee’s neglect or negligence.

 

Clause 19.1(10)

maintain the appropriate licenses or permits, if any, relating to the Lessee’s business and comply with statutes, orders and by-laws relating to the Lessee’s use and occupation of the Retail Shop and Building and promptly notify the Lessor on receipt of any notices or orders in relation to or affecting the Premises.

 

Clause 19.1(11)

carry out works on the Retail Shop which under this Lease Contract are the responsibility of the Lessee in accordance with notice given by the Lessor under Clause 17.3 (12).

 

Clause 19.1(17)

immediately on receipt of notice pay to the Lessor, Outgoings in accordance with Item (11) of the Item Schedule.

 

Clause 19.1(18)

subject to Section 14(4) of the Act, pay to the Lessor all reasonable costs associated with making amendments to the Lease Contract.

 

Clause 19.1(18)

carry on and continue to carry on its business in a fit and proper manner during the term of the Lease or any extension.

 

Clause 19.1(19)

keep the Premises secure at all times

 

Clause 19.1(20)

comply with the safety requirements of the Building and ensure occupational, health and safety requirements are complied with.

 

Clause 19.1(21)

replace all glass in the Retail Shop that is broken during the term of this Lease and also replace and repair where necessary, lights and light fittings, locks and security fittings with items of a similar quality.

 

Clause 19.1(22)

use all utility supplies, plumbing and other services only for the purpose for which they were intended.

 

Clause 19.1(23)

maintain utility supplies and services for the supply of which the Lessee has separate contractual responsibilities. (see also Clause 9.4)

 

Clause 19.1(24)

ensure that its employees, invitees, agents and licensees comply with the Terms and Conditions of this Lease Contract and any Rules relating to it.

 

Clause 18.3

For the purpose of Clause 19.1 (17) land tax will be calculated as if the Land was the only land owned by the Lessor in New South Wales.

 

Clause 18.4

The Lessee will ensure that its employees, invitees, agents and licensees comply with the Terms and Conditions of this Lease Contract and any Rules relating to it.

 

Clause 20.1(1)

obtaining written approval from the Lessor (and if required, from the relevant authorities) which approval may be refused or granted subject to such conditions as the Lessor in its absolute discretion thinks fit including payment of costs and outlays incurred by the Lessor; and

 

Clause 20.2

Once approved by the Lessor the Lessee must:

(1)

make payments of all costs relating to obtaining approvals, installation, operation & removal of equipment, fixtures, fittings or machinery and any other costs associated with such building works.

(2)

obtain and provide a copy to the Lessor of all required permits and approvals necessary to enable the proposed works to be lawfully carried out.

(3)

ensure the works are carried out in a proper and workmanlike manner and approved by the local council or other relevant authorities and are carried out in accordance with the Lessor’s directions.


 

Clause 24

This Lease Contract may be terminated by the Lessor if the Building in which the leased Retail Shop is situated is to be demolished requiring vacant possession of the Retail Shop, the provisions of in which case this Lease Contract will include Section 35 of the Act will apply.

 

Clause 26.2(d)

carry on any illegal activities or activities which could create a nuisance or interfere with the rights of other tenants or occupiers; or

 

Clause 26.2(e)

not to operate audio equipment at a volume that can be heard external to the Premises; or

 

Clause 26.2(f)

carry out an auction on the Premises; or

 

Clause 26.2(g)

use any chemicals, burning fluids, volatile or explosive substances except in the normal course of the Lessee’s business permitted under this Lease Contract; or

 

Clause 26.2(h)

except in the case of emergency, interfere with any fittings, fixtures or services including air conditioning or fire equipment without first obtaining the Lessor’s consent.

 

Clause 27.1

The Lessor will manage and control the Building and Common Areas.

 

Clause 27.3

The Lessee must comply with the Rules and all reasonable directions given to it by the Lessor relating to conduct in the Common Areas.

 

Clause 27.4

The Lessee must not interfere with or impede other persons using the Common Areas nor will it permit any of its the Lessee’s employees to do so.

 

Clause 28

If the Lessee’s business or trading name includes the name of the Centre, the Lessee must deregister the name upon ceasing to occupy the Retail Shop as Lessee and will not subsequently use any business or trading name which includes including the name of the Centre.

 

Clause 31.1

The Lessee will not assign, sublet or part with possession of the whole or a part of the Lessee’s interests under this Lease Contract, or sublet the Retail Shop without the Lessor’s written consent.

 

Clause 31.2

The Lessor will not, after having received reasonable notice, unreasonably refuse to grant the Lessee’s request unless:

 

Clause 31.2(a)

the proposed assignee/sub-lessee proposes to change the use to which the Retail Shop is put; or

 

Clause 31.4

The Lessee and proposed assignee/sub-lessee will complete all necessary deeds of assignment and covenant required by the Lessor.

 

Clause 32

The Lessee is not entitled to deal with the Lease or other assets of the business on, in or from the leased Premises by way of security without first having obtained the Lessor’s consent, which consent, is at the sole discretion of the Lessor and may be granted upon such terms and conditions as the Lessor considers reasonable.

 

Clause 33.1

Throughout the Lease Term term of the Lease at its’ sole cost, the Lessee must, in the joint names of the Lessee and Lessor, obtain the following insurances:

 

Clause 33.1(1)

Property: all stock, furnishings, plant and equipment all Property including fixtures and improvements owned or installed by the Lessee in the Retail Shop insured against fire with standard extension coverage for not less than 90% replacement cost.

 

Clause 33.1(2)

Public Liability: in the amount specified in Item (16) or such other amount as reasonably specified by the Lessor.

 

Clause 33.2(2)

are taken out in the joint names of the Lessor and the Lessee for their respective rights and interests.

 

Clause 33.2(3)

are at all times current and cover the agreed risks in accordance with Item (16) and contain conditions acceptable to the Lessor and the Lessor’s insurer.

 

Clause 33.3

Upon request provide copies of and provide certificates annually for each insurance policy confirming the currency of such policies to the Lessor.

 

Clause 34

Throughout the Lease Term the Lessor will insure the Building against fire, explosion, earthquake, impact by aircraft, vehicles and animals, lightening, storm, flood and/or tempest, malicious damage together with other risks the Lessor considers appropriate from time to time in broad form cover with repair and replacement terms.

 

Clause 35.1

The Lessee indemnifies the Lessor and the Lessor’s employees from and against all claims for which they may become liable including legal action during or after this Lease Contract arising from:

(a)

neglect or default by the Lessee or Lessee’s Employees or any persons for whom the Lessee is legally responsible; or

(b)

the Lessee’s failure to give notice of damage or defect to the Retail Shop; or

(c)

damage to person or property to the extent caused or contributed to by the Lessee or Lessee’s Employees; or

(d)

anything the Lessor is permitted or required to do under this Lease Contract unless the claim arises from the negligence of the Lessor or its employees or contractors.

(d)

failure by the Lessee or its Agents or employees to comply with its obligations under this Lease Contract; or

(e)

overflow, leakage or escape of water, gas electricity or similar hazard.

except to the extent that such loss, damage or expense has arisen from or been contributed to by any act or neglect on the part of the Lessor, its Agents or employees

 

Clause 36

Security Bond/Bank Guarantee

36.1

If a requirement for a Security Bond is provided for in Item (19) the Lessee must either:

(a)

give to the Lessor a Security Bond in the amount provided for in Item (19), to be lodged with the Director-General in accordance with Section 16C of the Act; or

(b)

arrange for the issue of an unconditional bank guarantee in the amount provided for in Item (19), in favour of the Lessor.

for the purpose of securing the performance by the Lessee of its obligations under this Lease Contract.

36.2

On the sale or the transfer of the Building the Lessor may assign its right with respect to the Security Bond to the purchaser and upon notifying the Lessee and the Director General the Lessor will be released from all obligations in relation to the Security Bond.  Where the Security Bond/ bank guarantee is not assignable, the Lessee will cause a replacement guarantee to be issued in favour of the purchaser the reasonable costs of which will be met by the Lessor.  Where a replacement Security Bond has been issued the original Security Bond must be released to the Lessee.

36.3

The Lessor may apply the Lessee’s Security Bond towards as compensation for any loss or damage incurred or sustained by the Lessor due to the Lessee’s failure to comply with any of its obligations under this Lease Contract.

36.4

The Lessor’s exercise of its rights with respect to the Security Bond does not prejudice any other rights of the Lessor arising from a breach of the terms of the Lease Contract.

36.5

The Lessor will as soon as practicable after at the end of the Lease Term or any extension of the Lease Term, cause to be released, subject to any unsatisfied claim under Clause 36.3, the Security Bond to the Lessee.

36.6

The amount of the Security Bond shall be adjusted in each year of the lease, subsequent to the first year, by using the same method as that used for Rent Reviews.

 

Clause 37.2

If the Lessee defaults under this Lease Contract, subject to giving any prior demand or notice required by any law, the Lessor may, without limiting other remedies, including action for damages and/or specific performance:

(a)

re-enter and take possession of the Premises and eject the Lessee and all other persons and this Lease Contract will terminate; or

(b)

by notice to the Lessee, terminate this Lease Contract from the date of giving the notice; and/or

(c)

claim the loss, if any, incurred by the Lessor; and/or

(d)

draw on the funds of any Security Bond held in accordance with Clause 36; and/or

(e)

call upon the Lessee’s Guarantor; or

(f)

by notice, allow the Lease Contract to continue on a periodic basis on the terms and conditions determined by the Lessor, but without prejudice to any rights accruing to the Lessor under this Lease Contract.

 

Clause 36.2

If an act of default by the Lessee in 36.1(a) is not remedied forthwith or the act of default by the Lessee in 36.1(b) is not remedied by the Lessee in accordance with notice from the Lessor under the provisions of Section 129 of the Conveyancing Act 1919, the Lessor may without limiting other remedies, including action for damages and/or specific performance:

(1)

terminate this Lease Contract

(2)

resume possession of the Retail Shop

(3)

claim the loss, if any, incurred by the Lessor

(4)

continue the Lease on a periodic basis

 

Clause 37.3

If the Lessee fails to vacate the Retail Shop in the case of default upon being given notice so to do, the Lessee is liable to pay compensation to the Lessor for any loss occasioned by the Lessor resultant upon that failure and the receipt of funds by the Lessor shall not create a new Lease Contract.

 

Clause 37.4

The following covenants are deemed to be essential: to pay Rent (Clause 5); to pay Outgoings (Clause 7); to only use the Premises for the Permitted Use stated in Item (14); to repair (Clause 19.1(9)); to carry on the business (Clause 19.1(18)); not to make alterations (Clause 20); not to Assign or Sublet without the Lessor’s consent (Clause 31); to insure (Clause 33); to comply with all laws and requirements (Clause 46);

A breach of an essential covenant may be treated by the Lessor as a repudiation of this Lease Contract, in which case, the Lessee will compensate the Lessor for all loss or damage suffered by reason of or resulting from the repudiation, including any loss or damage for the unexpired residue of the Lease Term subject to the Lessor having taken reasonable steps to mitigate its loss.

 

Clause 37.5

The Lessor’s failure to take advantage of any default by the Lessee will not be construed as waiving the default.

 

Clause 36.1

The Lessor may give notice terminating this Lease Contract if:

(a)

the Lessee fails to remedy a default; or

(b)

the Retail Shop is permanently unfit for the Lessee to occupy as provided in with Clause 20.

 

Clause 36.2

If the Lessee fails to vacate the Retail Shop upon receiving notice in accordance with Clause 36.1 the Lessee is liable to pay compensation to the Lessor for any loss occasioned by the Lessor resultant upon that failure and the receipt of funds by the Lessor shall not create a new Lease Contract.

 

Clause 36.3

In the case of default, and the tenancy under this Lease Contract continuing (in accordance with notice given by the Lessor) on a periodic basis, the Lessee may continue to occupy the Retail Shop on a periodic basis on the terms and conditions determined by the Lessor, but without prejudice to any rights accruing to the Lessor under this Lease Contract.

 

Clause 38.1

The Lessee will, on expiration or sooner determination of the Lease Term, deliver up the Retail Shop to the Lessor in good repair, order and condition, excluding fair wear and tear, in accordance with Clause 19.2.

 

Clause 38.3(b)

treat the Lessee’s Property as if the Lessee had abandoned its interest in it and the Lessee’s Property has become the Lessor’s property and may deal with it as the Lessor thinks fit without being liable to account to the Lessee.

 

Clause 41

41.1

If an option for a further to extend the Term of the Lease Contract is given in Item (7) the Lessee must exercise the option in writing in accordance with the exercise period in Item (7.1(5)) for the first Option Term and Item (7.2(5)) for the second Option Term.

41.2

An option for a further to extend the term of the Lease Contract shall only be granted by the Lessor if the Lessee has complied with the Terms and Conditions of this Lease Contract.

41.3

The Lessee having complied with Clause 41.1 & 41.2 the Lessor will grant a further lease of the Retail Shop to the Lessee from the Commencement Date for the Term and at the Rental as provided in Item (7.1) for the first Option Term and Item (7.2) for the second Option Term and otherwise on the same terms and conditions as this Lease Contract subject to Clause 41.4, excluding after exercise of the last Option Term, Item (7) of the Item Schedule and Option to Renew this Clause 41 and otherwise varying Item (6) of the Item Schedule as to the Lease Commencement Date, and Lease Expiry Date, Lease Term and Item (8) as to Rental.

41.4

Rental for the further term will be:

(a)

Current Market Rent in accordance with Clause 15; or

(b)

where notice has been given under Section 32 of the Act, determined in accordance with the Act

(c)

once determined, the amount payable from the commencement date of the new term.

40.5

No failure by the Lessee to comply with the Terms and Conditions of this Lease Contract precludes the Lessee’s entitlement to the option unless notice has been served in compliance with Section 133(E) of the Conveyancing Act 1919 and the Lessee’s rights are thereby extinguished.

41.5

Until such time as the rent for the first year of the new Lease Term is determined, the Lessee shall pay the rental applicable to the last year of the initial Lease Term, increased by 5%.  Such Rent will be adjusted retrospectively subject to the determination of the Current Market Rent for the first year of the new Lease Term.

41.6

The Rent for the second and subsequent Rental Years of the renewed Lease Term will be reviewed annually using the Review Type set out in Item (10) of the Item Schedule.

41.7

No failure by the Lessee to comply with the Terms and Conditions of this Lease Contract precludes the Lessee’s entitlement to the option unless notice has been served in compliance with Section 133(E) of the Conveyancing Act 1919 and the Lessee’s rights are thereby extinguished.

 

Clause 42

Where this Lease Contract is subject to the Mortgagee’s consent, the Lessor and Lessee must execute and complete any reasonable deed of consent required by the Mortgagee.

 

Clause 43.1(c)

by posting it to the party, by ordinary mail or security registered mail as a letter addressed to the party at the address as stated in Item (3) or (4); or

 

Clause 43.1(e)

if both parties agree and it is lawful, by electronic transmission to the party at the email address shown for that party in the Item Schedule (refer to Items (3), and (4) and (18) of this Lease Contract); or

 

Clause 44.1

Time shall be of the essence for the Lessee regarding carrying out execution of either party’s the Lessee’s obligations under this Lease Contract.

 

Clause 47

The parties agree and confirm this Lease Contract documents may be forwarded electronically to a person if that person the recipient has provided an email address or facsimile number, for delivery or service of documents, in the Item Schedule to this Lease Contract Authority.

 

Clause 49

Should any court or tribunal of competent jurisdiction determine any term, provision or obligation of this Lease Contract to be void, illegal or enforceable by law, that term, provision or obligation must be read down to the extent possible or removed from the Lease Contract will be removed from the Lease Contract and whilst keeping will not effect the operation of the remainder of the Lease Contract in effect.

 

Clause 49

The parties acknowledge having received disclosure statements complying with all respects with Section 11 and 11A of the Act.

 

Clause52.1(3)

indemnifies the Lessor against all claims which the Lessor may suffer or incur in connection with any breach or default by the Lessee under this Lease Contract or any extension or renewal of the Lease Term.

 

01 Jan 2011 v1.4

Additions / Changes:


Clause 1.1(6)

Business Day: Any day other than a Saturday, Sunday or public holiday under the Public Holidays Act 2010 or bank holiday in the State of New South Wales.

 

22 Oct 2010 v1.3

Additions / Changes:


Clause 18.1(20)

carry on its business in a fit and proper manner during the term of the Lease or any extension.


Clause 25.3

The Lessee acknowledges the Lessor has given The Lessor gives no warranty regarding the suitability of the Retail Shop for the use permitted under this Lease Contract. (See Item (14)). The Lessee occupies the Retail Shop at the Lessee’s own risk.


Clause 43

The parties agree and confirm documents may be forwarded electronically to a person if that person has provided an email address or facsimile number, for delivery or service of documents, in the Item Schedule to this Authority.

 

18 Jan 2010 v1.2

Additions / Changes:


Important Note

Section 9

A person must not, as the Lessor, offer to enter into a Retail Shop Lease unless that person has possession of a copy of the proposed Retail Shop Lease and makes a copy of the proposed Retail Shop Lease and (if applicable) a copy of the Retail Tenancy Guide available to any prospective Lessee as soon as that person enters into negotiations concerning the Lease Contract. – See Clause 17.3 (7) herein.

Section 11

A Lessor Disclosure Statement must, in accordance with the Act, be given to the Lessee at least 7 days before the Lease Contract is entered into. – See Clause 17.3 (7) herein

Section 11A

A Lessee Disclosure Statement must be given to the Lessor no later than 7 days after the Lessee receives the Lessor’s Disclosure Statement in accordance with the Act. - See Clause 18.1(12) herein.

Section 15

If the Lease Contract is not to be registered the Lessor will provide the Lessee with an executed copy of the stamped Lease Contract within 1 month of stamping.

Section 16

For a Lease of less than 5 years (including an option) a certificate under Section 16(3) must be completed.  (See Page 11 herein)


Clause 43

By signing this Agreement all parties agree to having given prior approval, in accordance with the Electronic Transactions Act 2000, No. 8, for electronic transmission of this Agreement and any other related agreements, for signing purposes or otherwise, by as far as such means of communication as have been indicated in this document (ie. Facsimile numbers and email addresses).

 

01 Apr 2008 v1.1

Additions / Changes:


Clause 38.4(c)

once determined, the amount payable from the commencement date of the new term.