Second Schedule: General Terms and Conditions
1.
Definitions interpretations and exclusions
1.1
Definitions and Interpretations
In this Lease unless a contrary intention appears:
Accounting Periodincludes reference to any twelve (12) month period as the Landlord from time to time specifies.
Air Conditioning Plantmeans any plant, machinery or equipment for heating, cooling or circulating air.
Alterationsmeans any alteration, addition, installation or removal (including without limitation any installation or alteration of partitioning and any alteration to any services) to the Premises carried out or proposed to be carried out by the Tenant or persons under the control of the Tenant.
Annual Rentmeans Premises Rent and Carpark Rent.
Authorised Officermeans any person whose title or acting title includes the word manager or cognate expressions, or any secretary or director of that party from time to time.
Authoritymeans any authority having jurisdiction over the Land and/or Building and includes, where appropriate, any utility supplier.
Bank Guaranteemeans an irrevocable and unconditional undertaking to pay the Bank Guarantee Sum in the form set out in the Eleventh Schedule or as otherwise approved by the Landlord and includes any replacement or additional undertaking provided in accordance with clauses 12.2, 12.3(b) and 4.3(b)(E).
Bank Guarantee Summeans that sum specified in Item 21 of the First Schedule and includes reference to such higher sum as may be specified by the Landlord as a condition of any approval given for an assignment of this Lease under clause 4 and includes reference to such higher sum included in any replacement or additional Bank Guarantee provided in accordance with clause 12.2.
Basic Considerationmeans the GST exclusive consideration (whether in money or otherwise) to be paid or provided by the Tenant for any supply of goods and services by or on behalf of the Landlord under this Lease.
Body Corporate means the Body Corporate incorporated under the Unit Titles Act in respect of the Building.
Building Actmeans the Building Act 2004.
Building Codemeans the regulations made from time to time under the Building Act.
Carpark Planmeans the plan(s) of the Carparks (if any) attached to this Lease.
Carpark Rentmeans the rent payable in relation to the Carparks as varied from time to time under this Lease.
Common Areasmeans all those parts of the Building and the Land from time to time designated by the Landlord for common use and enjoyment and (for the avoidance of doubt) including those parts of the Building and Land the use of which is necessary for the use and enjoyment of the Premises. In the case of a Unit Title development this expression will refer to the common property on the Unit Plan, in which case the rights and restrictions attaching to the common property will also attach to the Common Areas (subject to the provisions of the Unit Titles Act).
Consumablesmeans electricity, gas, water, telecommunications and other consumables such as may be required for the Premises.
Default GSTmeans any interest, or late payment penalty, or shortfall penalty, or other sum imposed on the Landlord under the GST Act or the Tax Administration Act 1994 by reason of non-payment of any GST by the Tenant by the due date, payable in respect of any supply made under this Lease.
Disposal Datemeans the date of a proposed assignment or subletting of this Lease.
Environmental Initiativesmeans:
(a)
energy monitoring with energy reduction targets in place;
(b)
waste reduction/recycling monitoring with landfill disposal reduction targets in place;
(c)
water monitoring with water consumption targets in place;
(d)
the use of cleaning products that have low environmental impact; and
(e)
any other initiatives implemented by the Landlord which are designed to benefit the environment and are reasonable;
including the initiatives (if any) set out in the Twelfth Schedule.
Excluded Risksmeans the Landlord's uninsurable risks, fire, flood, explosion, lightning, storm, earthquake, volcanic activity or any risk against which the Landlord is (or has covenanted with the Tenant to be) insured.
Expiry Datemeans the Expiry Date set out in the First Schedule or, if this Lease is renewed, the expiry date of the relevant further term.
GSTmeans Goods and Services Tax charged in accordance with the GST Act or any tax in the nature of a goods and services tax.
GST Actmeans the Goods and Services Tax Act 1985.
Inaccessiblemeans there is no access available to the Tenant for the purposes of conducting its business due to the act of a civil authority.
Landlordincludes its successors and assigns and the employees and agents of the Landlord.
Landlord's Reinstatement Noticemeans a written notice, served by the Landlord on the Tenant, advising the Tenant of the Reinstatement Period, such notice to be accompanied by such documentation as is reasonably necessary to demonstrate how the Reinstatement Period has been calculated.
Landlord's Termination Noticemeans a notice served by the Landlord on the Tenant pursuant to clause 7.3(a).
NZGBCmeans the New Zealand Green Building Council.
Operating Expensesmeans the outgoings, costs and expenses of the Building and Land, as referred to in the Fourth Schedule.
Ownership Interesthas the meaning given to it in the Unit Titles Act
Percentage NBSmeans the percentage of the new building standard assessed in accordance with AS/NZS1170 (or such standard in replacement of such standard from time to time).
PINZmeans the Property Institute of New Zealand.
Premisesincludes the underneath surface of ceilings, the Landlord's Fixtures and Fittings and any other equipment situated below ceiling level, any fixtures, fittings and floor coverings supplied by the Landlord, the doors within or enclosing the premises and the windows and window frames within the Premises and extends vertically from the upper surface of the floor slab to the underside of the ceiling. All areas above the ceiling remain vested in the Landlord for its use. Except where inconsistent with this Lease, the Premises comprise such areas as are described from time to time by Property Council and PINZ in their Guide for Measurement of Rentable Areas but does not include the exterior of the Premises.
Premises Condition Reportmeans the Premises condition report set out in the Eighth Schedule.
Premises Rentmeans the rent payable in relation to the Premises as varied from time to time under this Lease.
Premises Planmeans the plan(s) of the Premises attached to this Lease.
Property Councilmeans the Property Council of New Zealand Inc.
Property Law Actmeans the Property Law Act 2007.
Rating Toolsmeans any rating tools from time to time issued by NZGBC.
Reinstatement Periodmeans the anticipated period (as reasonably determined by the Landlord) required for the reinstatement of the Premises pursuant to clause 7.2, such period to be calculated from the date that the Landlord serves the Landlord's Reinstatement Notice.
Reinstatement Workmeans the work specified in the Ninth Schedule.
Related Companyhas the same meaning as in the Companies Act 1993.
Rentable Areahas the meaning and follows the system of calculation set down by Property Council/PINZ from time to time in their Guide for Measurement of Rentable Areas.
Rentable Valuemeans the rentable value of the Premises calculated by a Valuer on the basis set out in clause 1.2.
Rent Review Datemeans a Premises Rent Review Date and/or a Carpark Rent Review Date as the context permits.
Rulesmeans the rules set out in the Third Schedule and includes any variation(s) made by the Landlord.
Signsmeans signs, notices, nameplates or other advertising devices.
Taxable Supplyhas the meaning assigned to it by the GST Act.
Tenancymeans a part of the Building (including the Premises) leased or available for lease from the Landlord but excluding carparks and Tenancies has a corresponding meaning.
Tenantincludes its successors and permitted assigns, the employees and agents of the Tenant.
Tenant or persons under the control of the Tenantmeans the Tenant and/or any other person in or about the Premises at the request or invitation or under the control or direction of the Tenant.
Tenant's Termination Noticemeans any notice of termination served by the Tenant pursuant to clause 7.4.
Total Rentable Areameans the total Rentable Area of those parts of the Building (including the Premises) from time to time leased or available for lease from the Landlord but excluding carparks.
Total Rentable Valuemeans the Rentable Values of all Tenancies (including the Premises) leased or available for lease from the Landlord (but excluding carparks in the Building) calculated by a Valuer on the basis set out in clause 1.2.
Umpirehas the same meaning as Valuer, except that the person appointed must have at least seven (7) years valuation experience. Unit Plan and Unit Title Development have the respective meanings given to such expressions in the Unit Titles Act.
Unit Titles Actmeans the Unit Titles Act 2010.
Valuermeans a valuer who is registered under the Valuers Act 1948 and who has:
(a)
at least five (5) years valuation experience in the area in which the Building is located; and
(b)
adequate professional indemnity insurance, providing cover (in respect of each claim) of at least five million dollars ($5,000,000),
and Valuershas a corresponding meaning.
Working Dayhas the meaning given to it in the Property Law Act. A notice served after 5pm on a Working Day is deemed to have been served on the following Working Day.
(a)
Singular words include the plural, the masculine gender includes the feminine, persons include companies, and vice versa.
(b)
Any provision of this Lease to be performed by two or more persons binds those persons jointly and severally.
(c)
The Table of Contents and any headings and marginal notations in this Lease have been inserted for convenience only and do not limit or govern the construction of the terms of this Lease.
(d)
Any reference in this Lease to any statute or regulation is deemed to include all amendments and revisions made from time to time to that statute or regulation and all statutes or regulations replacing the same.
(e)
References in this Lease to month or monthly mean respectively calendar month and calendar monthly.
(f)
Where the Landlord's consent or approval is required under this Lease:
(i)
such consent or approval is required on each separate occasion, despite any prior consent or approval obtained for a similar purpose on a prior occasion;
(ii)
unless expressly stated to the contrary consent or approval of the Landlord is at the discretion of the Landlord and section 224 of the Property Law Act will not apply.
(g)
Whenever words appear in this Lease which also appear in the First Schedule then those words mean and include the details supplied after those words in the First Schedule.
1.2
Calculation of Total Rentable Value
The Total Rentable Value will be calculated and assessed in the following manner:
(a)
The Total Rentable Value will be calculated from time to time by a Valuer selected by the Landlord.
(b)
The Valuer will consider the following in relation to each of the Tenancies as supplied by the Landlord:
(ii)
the permitted use or (where a Tenancy is vacant) the intended use;
(iii)
actual rent and outgoings (or market rent and outgoings where the Tenancy is vacant);
(iv)
other normal market terms and conditions.
(c)
After receiving the information set out in clause 1.2(b) the Valuer will make an assessment of the market rent that in his/her opinion is appropriate at that time for each of the Tenancies.
(d)
No party will be entitled to make representations to the Valuer.
(e)
The Valuer will issue to the Landlord a written assessment of the Total Rentable Value and the percentage of the Total Rentable Value applicable to each Tenancy. That assessment will not be subject to appeal or review by any party and will be final and binding for all relevant purposes under this Lease.
(f)
The Valuer's proper and reasonable costs and expenses of the assessment will form part of the Operating Expenses.
1.3
Exclusion of certain Property Law Act provisions
The covenants and powers contained in sections 218 and 219 and Parts 2 and 3 of Schedule 3 of the Property Law Act will not be implied in this Lease and are expressly negatived.
1.4
Exclusion of implied terms Except as may be provided in a written agreement to lease, this document comprises the entire agreement between the parties and any previous representations, warranties, arrangements and statements whether expressed or implied are excluded from this Lease and do not form part of the agreement between the parties. In the event of a conflict between any agreement to lease and this Lease the terms of this Lease will prevail.
1.5
Unenforceable provisions If any provision of this Lease is held to be illegal, invalid or unenforceable this will not affect the other provisions in this Lease, which will remain of full force and effect.
2.1
Monthly tenancy/holding over If the Landlord permits the Tenant to continue to occupy the Premises beyond the Expiry Date that occupation will be a periodic tenancy only terminable on one (1) month's notice at the rental payable immediately preceding the Expiry Date and on the terms and conditions (so far as application to a monthly tenancy) set out in this Lease.
If the Tenant has not been in material breach of this Lease (and is not in breach at the time of giving notice under this clause) and has given to the Landlord written notice to renew this Lease at least nine (9) calendar months before the Expiry Date then the Landlord will grant a new lease for a further term from the relevant Renewal Date as follows:
(a)
If the Renewal Date is a Rent Review Date the Annual Rent will be agreed upon or failing agreement will be determined in accordance with the relevant provisions of this Lease but each component of the Annual Rent will not be less than that payable for the component during the period of twelve (12) months immediately preceding the relevant Renewal Date.
(b)
The Annual Rent will be subject to review during the further term(s) on each Rent Review Date and in any event at the same intervals as apply during the initial term of this Lease.
(c)
Subject to the provisions of clause 2.2(a), the new lease will be upon and subject to the covenants and agreements expressed and implied in this Lease except that this Lease plus all further terms will expire on or before the final expiry date of this Lease.
(d)
Pending the determination of the Annual Rent the Tenant will pay an interim rent determined under clause 3.6(i), subject to subsequent adjustment.
(e)
As a condition of granting a new lease under this clause 2.1 the Landlord may require:
(i)
that the new lease is guaranteed by any guarantor who has guaranteed the obligations of the Tenant giving notice under this clause 2.1;
(ii)
that the Bank Guarantee (if any) is renewed; and
(iii)
(if requested by the Landlord within four (4) weeks of the service of the Tenant's notice under this clause 2.2) that the Tenant (within a further four (4) week period) provide the Landlord with a recent statement of the Tenant's and the Guarantor's assets and liabilities and (where either the Tenant or the Guarantor is a company) a statement of assets and liabilities in relation to shareholders as well. Any statement supplied under this clause 2.2(e)(iii) must be certified by a chartered accountant in private practice.
As an alternative to providing the guarantee referred to in clause 2.2(e)(i) the Tenant may offer the Landlord as a substitute another guarantor or a bank guarantee, acceptance of such alternative security to be entirely at the discretion of the Landlord.
The Landlord shall not disclose any information obtained pursuant to 2.2(e)(iii) to any third party other than:
(a)
to a professional advisor and to any officer or employee of the Landlord (where disclosure is for proper purposes; and/or
3.
Rent, GST, operating expenses, rent review, interest, rates
3.1
Agreement to pay annual rent
The Tenant will pay the Landlord the Annual Rent.
3.2
Goods and Services Tax
(a)
In addition to the Basic Consideration, the Tenant will pay to the Landlord the amount of all GST chargeable on any Taxable Supply by the Landlord under this Lease.
(b)
Any amount payable by the Tenant under clause 3.2(a) will be payable on the date on which the relevant supply is deemed to take place by virtue of the GST Act.
(c)
If the Tenant defaults in paying the Annual Rent, GST, or any other moneys due under this Lease, and as a result the Landlord becomes liable to pay any Default GST, the Tenant will on demand pay the Default GST.
(d)
As between the Landlord and the Tenant, the Landlord will not be obliged to pay any GST or Default GST, or to take any other steps to minimise the liability in respect of such tax, until the corresponding payment is received from the Tenant.
3.3
Manner of payment of annual rent and other moneys
(a)
The Annual Rent will be paid by the Tenant by equal monthly instalments in advance on the first day of each month commencing on the Commencement Date provided that if this Lease commences on a day other than the first day of a month then the Tenant will pay on the Commencement Date the Annual Rent calculated on an annual basis from the Commencement Date through to the end of that month.
(b)
The Tenant will pay the Annual Rent and Operating Expenses to the Landlord by automatic payment. At least ten (10) Working Days prior to the Commencement Date the Tenant must provide to the Landlord a completed and signed automatic payment authority. All instalments must be paid by direct transfer to the bank account notified to the Tenant by the Landlord from time to time and, in the absence of such notification, to the place and in the manner directed by the Landlord from time to time without deduction or set-off.
3.4
Tenant's contribution to operating expenses
The Tenant will pay to the Landlord the Tenant's share of the Operating Expenses provided that the Landlord may vary the Tenant's share of any particular outgoing, cost or expense to ensure the Tenant pays a fair proportion of all Operating Expenses.
3.5
Manner of payment of operating expenses
(a)
Prior to or as soon as practicable following the Commencement Date the Landlord will advise the Tenant of the Landlord's estimate of the Operating Expenses through to the last day of the initial Accounting Period. The Tenant's share of such estimate will be paid by automatic payment and by equal instalments in advance on the first day of each month of such period.
(b)
Prior to or as soon as practicable following the last day of each Accounting Period the Landlord will advise the Tenant of the Landlord's estimate of the Operating Expenses for the next Accounting Period. That estimate will be supplied by way of a written budget prepared against the relevant categories of Operating Expenses. The Landlord may at any time notify the Tenant of a revised estimate of the Operating Expenses where some unforeseen matter arises which is likely to have a significant effect on the Operating Expenses. Any such revised estimate will apply in place of the earlier estimate and shall be payable by the Tenant in accordance with clause 3.5(a).
(c)
During each Accounting Period the Tenant will pay in advance on the first day of every month one twelfth of the Tenant's share of the Landlord's estimate of the Operating Expenses for that Accounting Period.
(d)
As soon as practicable after the last day of each Accounting Period the Landlord will provide to the Tenant either:
(i)
an audited statement; or
(ii)
such reasonable information as the Tenant reasonably requires,
in respect of the Operating Expenses for the relevant Accounting Period and any required adjustment will immediately be made by way of further payment or refund so that the Tenant has paid the Operating Expenses in accordance with clause 3.4. The Tenant may require an audited statement from the Landlord in respect of any Accounting Period.
(e)
The Tenant must pay all costs incurred by the Landlord (third party or otherwise) in complying with clause 3.5(d)(i) in the event that the Tenant requires the Landlord to supply an audited statement.
(f)
Following the Landlord's compliance with clause 3.5(d) any shortfall (together with, at the Landlord's discretion, a reasonable contingency amount against any unbudgeted expenses as detailed in writing by the Landlord to the Tenant and referenced against the relevant categories of Operating Expenses) not held by the Landlord will be paid by the Tenant to the Landlord within ten (10) Working Days. Any excess money held by the Landlord will also be paid to the Tenant within ten (10) Working Days subject always to the right of the Landlord to apply the same in satisfaction or on account of any money owing and unpaid by the Tenant.
(g)
Upon the expiry or earlier termination of this Lease the Landlord will within three (3) months of the end of the relevant Accounting Period advise the Tenant of:
(i)
the total of the monthly payments made by the Tenant during the current Accounting Period;
(ii)
the liability of the Tenant for Operating Expenses in terms of the Landlord's estimate; and
(iii)
the Landlord's assessment of any shortfall (or excess) in the Tenant's contribution to the date of expiry or earlier termination.
(h)
Nothing will prevent the Landlord from recovering Operating Expenses merely because the Landlord has failed to notify the Tenant promptly of an estimate or of an actual amount.
(i)
If the Lease Term does not commence on the first day of an Accounting Period the Tenant's Share of the Operating Expenses for that Accounting Period will be calculated on a daily basis from the Commencement Date through to the end of the initial Accounting Period.
(j)
Despite the other provisions of this clause 3.5 the Landlord will not be entitled to recover from the Tenant any sum in respect of Operating Expenses relating to an Accounting Period ending more than two (2) years prior to the then current Accounting Period unless that expense is ground rent payable by the Landlord under a ground lease of all or part of the Land.
(k)
The Tenant's liability to pay the Tenant's Share of Operating Expenses during the Lease Term will subsist despite the earlier termination of the Lease Term.
3.6
Review of premises rent
(a)
Not earlier than four (4) months prior to each of the Premises Rent Review Dates the Landlord may give notice in writing to the Tenant (Landlord's Notice) setting out the amount which the Landlord considers to be the current market Premises Rent as at the Premises Rent Review Date.
(b)
Unless within twenty (20) Working Days after the date of service of the Landlord's Notice (in which regard time will be of the essence), the Tenant, by notice in writing to the Landlord (Tenant's Notice) disputes the notified rent, and sets out in the Tenant's Notice the amount which the Tenant considers to be the current market Premises Rent as at the Premises Rent Review Date, the rent notified by the Landlord will be the Premises Rent as from the Premises Rent Review Date.
(c)
If the Tenant serves the Tenant's Notice and the parties are not able to resolve the dispute within ten (10) Working Days after the date of service (or such longer period as the parties agree) then either party may serve a written notice (Dispute Notice) on the other requiring that the Landlord and the Tenant each appoint a Valuer to determine jointly the current market Premises Rent and notify the other of such appointment within ten (10) Working Days of the service of the Dispute Notice.
(d)
If a Dispute Notice is served by either party then the following provisions shall apply:
(i)
if either party fails to comply with the requirements of the Dispute Notice the determination of the current market Premises Rent will be made by the sole appointed Valuer and such determination will be binding on both parties;
(ii)
where clause 3.6(d)(i) does not apply, within thirty (30) Working Days of the service of the Dispute Notice the Valuers will exchange evidence and will then endeavour to jointly determine the current market Premises Rent, having regard to that evidence;
(iii)
if the Valuers are unable to agree the current market Premises Rent within forty (40) Working Days of the service of the Dispute Notice they will appoint the Umpire to make the determination;
(iv)
if the Valuers fail to appoint the Umpire within ten (10) Working Days of the requirement for the appointment arising under clause 3.6(d)(iii) the Landlord or the Tenant may request the president of PINZ to appoint the Umpire;
(v)
if the Umpire does not hand down his or her determination within thirty (30) Working Days of his or her appointment either party may request the President of PINZ to appoint another Umpire in that Umpire's place; and
(vi)
the Umpire is to be appointed on usual commercial terms including provision of an indemnity to the Umpire (in respect of the Umpire's costs and appointment) by each of the Landlord and the Tenant.
(e)
in assessing the current market Premises Rent the Valuers and/or Umpire will be deemed to be acting as expert(s) and not as arbitrator(s);
(f)
the parties will equally share the costs of the Umpire unless any party has acted unreasonably in the proceedings in which case the Umpire may determine the manner in which such costs will be apportioned between the parties;
(g)
in determining the current market Premises Rent the Valuers and/or Umpire will consider comparable premises and will:
(i)
disregard any breach of this Lease by the Tenant;
(ii)
disregard the value of any goodwill attributable to the Tenant's business and the value of the Tenant's fixtures and fittings in the Premises; and
(iii)
have regard to the Landlord's Fixtures and Fittings.
(h)
In considering comparable premises the Valuers and/or Umpire will take particularly into account evidence of office premises in similar positions to the Premises within or comprising buildings of similar quality to the Building (including, without limitation, quality of finishes and building services).
(i)
From the later of the receipt of the Landlord's Notice and the relevant Premises Rent Review Date the Tenant will pay to the Landlord the Premises Rent specified in the Landlord's Notice provided that the Landlord has supplied to the Tenant a certificate from the Landlord's Valuer (appointed under clause 3.6(c)) supporting the Premises Rent specified in the Landlord's Notice.
Once the current market Premises Rent has been determined the Landlord and the Tenant will immediately make such adjustment between them as is necessary so that since the relevant Premises Rent Review Date the Tenant will have paid Premises Rent in accordance with clause 3.1.
(j)
In no event will the Premises Rent following the relevant Premises Rent Review Date be less than the Premises Rent payable immediately prior to the relevant Premises Rent Review Date.
(k)
The Landlord will be entitled to require the Tenant to enter into a variation of Lease to record the result of any rent review of the Premises Rent.
(l)
In the event that the Landlord has not served the Landlord's Notice within three (3) months of the relevant Premises Rent Review Date the Tenant may notify the Landlord of the Tenant's assessment of the current market Premises Rent to apply from the relevant Premises Rent Review Date and in that case this clause 3.6 will apply but reference to the Tenant will be read as reference to the Landlord, reference to the Landlord's Notice will be read as reference to the notice from the Tenant and reference to the Tenant's Notice will be read as reference to a notice from the Landlord.
(m)
For the avoidance of doubt, the new Premises Rent notified or determined in accordance with this clause 3.6 will be effective from the relevant Premises Rent Review Date irrespective of the date that the Landlord's Notice (or the Tenant's notice pursuant to clause 3.6(l) (as the case may be)) is served.
3.7
Interest on overdue moneys
Without prejudice to other remedies, if any moneys payable by the Tenant to the Landlord are unpaid for five (5) Working Days after the due date for payment (whether any demand has been made or not) such moneys will bear interest computed from the due date until the date of payment in full at the Specified Rate of Interest.
(a)
The Tenant will pay the local body rates (including any water rates and any other charges made for water usage or waste disposal, excess or advance rates) levied in respect of the Premises provided that if there is no separate assessment the Tenant will pay to the Landlord that proportion of those rates levied in respect of the Land which is equivalent to the Tenant's Share of Operating Expenses.
(b)
All rates in respect of the Premises will be apportioned (if need be) at the beginning and end of the Lease Term.
4.
Assignment and subletting
4.1
Control of assignment and subletting
(a)
The Tenant will not mortgage or charge the Premises or this Lease provided that the Tenant will be entitled to grant a general security agreement in customary form to a trading bank in the ordinary course of its business. In such case the Tenant will promptly notify the Landlord of such general security agreement being given but in no event will the Landlord be obliged to acknowledge or specifically consent to the same.
(b)
The Tenant will not assign or sublet this Lease or part with possession of the Premises. Subject to clause 4.2, the Landlord will not unreasonably withhold or delay its consent to:
(i)
an assignment of the whole of the Premises; or
(ii)
a subletting of the whole or part of the Premises,
to a respectable, responsible, solvent and suitable assignee or subtenant using the Premises for the Permitted Use and not using the Premises for the Permitted Use in a manner likely to be detrimental to the tone or quality of the Building. Before giving such consent and/or releasing any documents signifying such consent the Tenant must satisfy the conditions listed in clause 4.3.
(c)
The Tenant acknowledges that ten (10) Working Days from the latest date that the Tenant has satisfied all of the conditions contained in clause 4.3(a) will be a reasonable time period for the purposes of section 224 of the Property Law Act.
If the Tenant intends at any time to assign this Lease to any party other than a Related Company of the Tenant the Tenant will first give written notice to the Landlord as to the Permitted Use and the terms on which the Tenant is prepared to assign or transfer this Lease and will supply to the Landlord a full copy of any relevant agreement or other documentation (including correspondence).
The Landlord must advise the Tenant in writing within five (5) Working Days of receiving such written notice either:
(a)
that it requires the Tenant to surrender to the Landlord this Lease upon the same terms and conditions as have been contracted between the Tenant and the third party (including such term(s) as have been agreed with the third party as to payment of a capital sum) and to execute the deed of surrender prepared by the Landlord at the cost of the Tenant; or
(b)
that the Landlord does not require a surrender, in which case clause 4.3 will apply.
In the event that the Landlord does not comply with the timeframes under this clause 4.2 then clause 4.3 will apply.
4.3
Conditions of assignment and subletting
Before assigning or subletting this Lease, the Tenant must satisfy the following conditions:
(a)
At least ten (10) Working Days prior to the Disposal Date the Tenant will give to the Landlord:
(i)
written notice of the proposed assignment or subletting;
(ii)
sufficient details to demonstrate to the Landlord that the proposed assignee or subtenant will satisfy the requirements of clause 4.1(b) and in the case of an assignment, has the financial resources to meet the Tenant's commitments under this Lease, as evidenced by a recent statement of the proposed assignee's and guarantor's assets and liabilities or subtenant's assets and liabilities. Where that assignee, subtenant or guarantor is a company then a statement shall also be supplied in relation to the shareholders of that company as well. Any statement supplied under this clause 4.3(a)(ii) must be certified by a chartered accountant in public practice;
(iii)
a list of the proposed assignee's or subtenant's previous commercial landlord(s) over the last five (5) years (if any);
(iv)
in the case of an assignment occurring within twenty-four (24) months of the expiry of the Lease Term satisfactory evidence that the proposed assignee has the financial resources to comply with its obligations under clauses 5.1, 5.3, 5.4 and 5.10; and
(v)
in the case of a sublease:
(A)
satisfactory proof (by a Valuer's report, if required by the Landlord) that the sublease rent is at a rate not less than the then current market rental rate for the Premises and Carparks (if appropriate) without payment of any premium or inducement by either party; or
(B)
a written acknowledgement by the Tenant and the proposed subtenant that the rent payable under the sublease is not a market rent and is not evidence that can be used on any rent review.
In the event that the Tenant fails to comply with clause 4.3(a)(v)(A) then the sublease rent will be deemed not to be a current market rental rate.
(b)
Prior to the Disposal Date the Tenant will:
(i)
pay to the Landlord such sum of money as the Landlord reasonably requires on account of the costs incurred or likely to be incurred by the Landlord (including, but not limited to, a fee to cover the Landlord's administrative expenses and the Landlord's solicitors' legal fees and disbursements relating to the proposed assignment or subletting). All such costs may be charged and retained by the Landlord whether or not the proposed assignment or subletting completes;
(ii)
in the case of an assignment:
(A)
pay to the Landlord such provisional payments as the Landlord reasonably determines on account of potential utilities, the Tenant's share of Operating Expenses (including local body rates) and Annual Rent up to the Disposal Date;
(B)
arrange for the proposed assignee to deliver to the Landlord an automatic payment authority or direct debit authority commencing on the first day of the month following the Disposal Date for the Annual Rent, Tenant's share of Operating Expenses and rates (if not separately assessed);
(C)
deliver to the Landlord a deed duly executed by the Tenant and the proposed assignee, in a form acceptable to the Landlord, covenanting that the proposed assignee will at all times pay the Annual Rent and observe all the terms and conditions of this Lease (but without releasing the Tenant from the Tenant's obligations under this Lease) and acknowledging that the covenants of the proposed assignee are not in substitution for and do not reduce, prejudice or vary the liability of the Tenant under this Lease;
(D)
where the proposed assignee is a company (other than a company listed on the Australian or New Zealand Stock Exchange), arrange for the directors and controlling shareholders of such company to enter into a deed (in a form acceptable to the Landlord) guaranteeing the performance by the proposed assignee of the terms of this Lease; and
(E)
if required by the Landlord, arrange for the proposed assignee to deliver to the Landlord a Bank Guarantee.
(iii)
in the case of a sublease:
(A)
deliver to the Landlord a deed duly executed by the subtenant (and any guarantors of the subtenant's obligations under the sublease) in a form acceptable to the Landlord. The deed will provide that:
(aa)
the subtenant will pay the sublease rental (to the extent of the Annual Rent) and all other money payable by the subtenant under the sublease to the Landlord, and in such manner as the Landlord directs, upon receipt of a written demand from the Landlord to do so;
(bb)
the subtenant will comply with all the obligations imposed on the Tenant under this Lease (with the exception of the obligation to pay the Annual Rent and the Tenant's share of Operating Expenses) in relation to the sublet premises;
(cc)
the subtenant will enter into a lease direct with the Landlord (on the terms of the sublease) in the event that the headlease is cancelled and the Landlord so requires;
(dd)
the subtenant will procure that any guarantors of the subtenant's obligations under the sublease guarantee the subtenant's obligations under any new lease entered into pursuant to clause 4.3(b)(iii)(A)(cc) in the same manner as under the sublease; and
(ee)
there will be prohibited any sub-subletting of all or part of the sublet premises; and
(B)
The Tenant must not sublet part of the Premises in a configuration that will or is likely to adversely affect the rental payable for the balance of the Premises not comprised in the sublease.
(c)
There is to be no unremedied breach of any of the terms of this Lease as at the Disposal Date.
(d)
Despite anything to the contrary in this Lease the acceptance by the Landlord of any moneys from a proposed assignee or subtenant or the fact that a proposed assignee or subtenant is in possession of the whole or part of the Premises and/or Carparks will not constitute consent by the Landlord to the proposed assignment or subletting unless and until all matters required to be completed under this clause 4.3 have been completed.
(e)
Where the Landlord consents to a subletting the consent will extend only to the subletting and despite anything contained or implied in the sublease the consent shall not permit any subtenant to deal with the sublease in any way in which the Tenant is restrained from dealing without consent.
(f)
The Tenant acknowledges that despite the provisions of clause 4.3(b)(iii) it remains liable to the Landlord for payment of the Annual Rent and other payments due under this Lease.
4.4
Change of shareholding
For the purposes of this clause 4, if the Tenant is a company that is not listed on the New Zealand or Australian Stock Exchange, any change or rearrangement in the beneficial ownership of the principal shareholding of the Tenant (or its holding company) or the Guarantor (if any) or the alteration in the constitution of each such company, altering the effective control of the relevant company, will be deemed a proposed assignment of this Lease and will require the consent of the Landlord under this clause 4.
5.
Maintenance, alterations and compliance
5.1
Tenant to keep premises in good repair
(a)
The Tenant will keep the Premises (including the Landlord's Fixtures and Fittings) in good repair and condition having regard to their condition at the Commencement Date (as evidenced by the Premises Condition Report, if completed) and at the end of this Lease will hand the Premises over to the Landlord in good repair, except for fair wear and tear and any damage caused by Excluded Risks, except to the extent that:
(i)
the damage was intentionally caused by the Tenant or persons under the control of the Tenant;
(ii)
the damage was the result of an act or omission by the Tenant or persons under control of the Tenant and that act or omission;
(A)
occurred on or about the Building or the Land; and
(B)
constitutes an indictable offence within the meaning of the Summary Proceedings Act 1957; or
(iii)
any insurance moneys otherwise payable are deemed irrecoverable because of an act or omission of the Tenant or persons under the control of the Tenant.
If the Premises Condition Report is not completed the Premises (including the Landlord's Fixtures and Fittings) will be deemed to have been in sound condition at the Commencement Date.
(b)
In addition to the Tenant's other obligations under this clause 5 prior to the expiry or earlier termination of this Lease, the Tenant will carry out and complete the Reinstatement Work at its own cost and in a proper and tradesmanlike manner. This clause will not entitle the Tenant to remove or alter any of the Landlord's Fixtures and Fittings.
The Tenant will keep the Tenant's plant servicing the Premises maintained and in good repair and will keep current at the Tenant's expense adequate maintenance service contracts in respect of such plant with contractors approved by the Landlord.
5.3
Redecoration by tenant
(a)
The Tenant will redecorate the Premises throughout to the satisfaction of the Landlord by no later than each of the Redecoration Dates and at the expiry or earlier termination of this Lease. The term "redecorate" includes the cleaning down of the interior of the Premises (including all partitions and additions) and the treatment as previously treated of all internal surfaces to a reasonable specification approved by the Landlord and to a good standard.
(b)
If the Tenant fails to redecorate the Premises by the dates and in the manner specified in clause 5.3(a) the Landlord may undertake such redecoration at the Tenant's expense and the Tenant will repay on demand any money spent by the Landlord.
5.4
Replacement of carpets
Prior to the expiry or earlier termination of this Lease the Tenant will replace all floor coverings owned by the Landlord which are damaged or worn other than by reasonable wear and tear and require replacement. The Tenant will in such case obtain the prior written approval (approval not to be unreasonably withheld) of the Landlord as to floor covering quality, colour and design. In the event that any part of a floor covering requires replacement under this clause 5.4 then the whole of the original floor covering must be replaced.
5.5
Tenant's further maintenance obligations
The Tenant will at the Tenant's expense:
(a)
ensure that all waste is placed promptly in suitable containers within the Premises and that any excess waste (such as is not removed by the Landlord) is promptly removed from the Building;
(b)
immediately make good any damage to the Premises and/or the Building or Land (including broken or damaged glass) caused by the Tenant or persons under the control of the Tenant, including replacing items as required;
(c)
replace all faulty light bulbs, tubes and associated fittings within the Premises with matching bulbs, tubes and fittings of similar specification; and
(d)
keep the Premises clean and tidy at all times and free from accumulations of dirt and rubbish.
(e)
at the discretion of the Landlord any work to be done pursuant to this clause 5.5, and also any work required to be done by the Landlord to repair any part of the Land or the Building other than the Premises where damage is caused by the Tenant or persons under the control of the Tenant, may be done by the Landlord at the cost of the Tenant, payment to be made to the Landlord upon demand; and
(f)
the Tenant is only liable to make good damage to the Premises caused by Excluded Risks to the extent specified in clauses 5.1(a)(i) to (iii).
5.6
Alterations and additions
(a)
The Tenant will not:
(i)
make any structural Alterations or undertake any work which may affect the structural integrity of the Building;
(ii)
install or alter any equipment, fixture, fitting or machinery (including but not limited to any water, gas or electrical fixtures or appliances, fire services or any apparatus for illuminating, air conditioning, heating, cooling or ventilating the Premises) likely to disturb the efficient operation of the air conditioning or other systems servicing the Building or the Premises; or
(iii)
remove any of the Landlord's Fixtures and Fittings from the Premises or relocate them within the Premises,
without the Landlord's prior written approval provided that clause 5.6(a)(ii) shall not operate to restrict the Tenant from carrying out minor tasks such as, for example, the replacement of light bulbs.
(b)
The Tenant will not make any non-structural Alterations to the Premises that are not covered under clause 5.6(a) without the Landlord's prior written approval, which will not be unreasonably withheld or delayed.
(c)
In seeking the Landlord's approval to any Alterations the Tenant will submit plans, specifications and a programme of the proposed works.
(d)
As a condition of the Landlord's approval (if given) and in carrying out the Alterations the Tenant will:
(i)
ensure that any Alterations are supervised by a person approved by the Landlord and undertaken in a safe manner;
(ii)
comply with the Landlord's fitout manual (if any) as supplied from time to time;
(iii)
ensure that any Alterations are carried out by contractors approved by the Landlord;
(iv)
pay on demand all costs and expenses (including independent consultancy) reasonably incurred by the Landlord in considering the Alterations and their supervision;
(v)
comply with all statutory requirements (including but not limited to, the obtaining of building consents and code compliance certificates pursuant to the Building Act), and provide evidence of compliance to the Landlord. Code compliance certificates will be obtained and provided to the Landlord as soon as reasonably possible after completion of the relevant Alterations;
(vi)
provide to the Landlord at the expense of the Tenant updated "as built" plans of the Premises and the services to the Premises properly integrated with the Building plans in electronic Computer Aided Design format;
(vii)
prior to commencing the Alterations submit to the Landlord evidence of adequate insurance to cover the Alterations and also a comprehensive programme including a confirmed start time for the Alterations;
(viii)
ensure that the Alterations are of an appropriate standard and design for the Building. Alterations will be the property of the Tenant who will be responsible for their maintenance and insurance. Despite the above any Alterations which alter building services will be the property of the Landlord;
(ix)
pay all costs related to the Alterations (and any consequential additions or alterations to services) which may be required by reason of the Alterations together with all architects' and other consultants' fees;
(x)
ensure that the Building and Land (including lifts, escalators and Common Areas) are properly protected and all Common Areas are kept free from debris and are not obstructed at any time, so that the Common Areas are fully available at all times for use by other parties, including other occupants of the Building and Land;
(xi)
carry out after normal business hours any floor penetrations and other work which in the opinion of the Landlord is likely to cause undue interference with any other lessee's quiet enjoyment or constitute a nuisance to the public;
(xii)
ensure proper and controlled access for tradesmen and proper restrictions on and supervision of parking;
(xiii)
ensure that the lifts are used reasonably so that:
(A)
deliveries and/or transportation of tradespeople and materials between floors occur outside the normal business hours for the Building, as determined by the Landlord; or
(B)
a dedicated lift is used (where available) for deliveries and/or transportation of tradespeople and materials between floors during the normal business hours for the Building, as determined by the Landlord; and
(xiv)
comply with all proper directions given by the Landlord.
(e)
Clauses 5.6(a) to 5.6(d) (inclusive) will also apply to all works carried out in and around the Premises by the Tenant.
(f)
Without limiting the generality of the provisions of clauses 5.6(a) to 5.6(d) (inclusive), when installing partitions the Tenant will undertake such alterations and adjustments to the building services (including, but not limited to, air conditioning services) as are necessary to maintain the same level of performance specification in all areas of the partitioned Premises as existed prior to any partitions being installed. The Tenant will obtain the prior written consent of the Landlord to any such alteration or adjustment to any building services and will fully comply with clauses 5.6(c) and (d) in relation to those works. If required by the Landlord the Tenant will, after the installation of the partitions, obtain a report from a consultant approved by the Landlord, confirming that the building services maintain the same level of performance specification as existing prior to the partitions being installed.
(g)
Should the Tenant fail to obtain any code compliance certificate in accordance with clause 5.6(d)(v) then the Landlord may (after giving notice in writing to the Tenant of the Landlord's intention) do everything to obtain that code compliance certificate (including undertaking any works required) at the Tenant's expense and the Tenant will repay on demand any money spent by the Landlord.
(h)
In the event that the building consent obtained for any Alterations will trigger a requirement for any additional improvements, additions or alterations to be undertaken to the Premises and/or the Building to satisfy the requirements of the Building Act (as a condition of that building consent) then the Landlord may withhold its approval pursuant to clause 5.6(a) and/or 5.6(b) (as the case may be) in relation to those Alterations. If any such approval has already been given the Landlord may withdraw that approval (or give that approval subject to condition(s)) on written notice to the Tenant within ten (10) Working Days of the Tenant providing a copy of the relevant building consent to the Landlord.
(i)
If the Landlord gives approval to Alterations (or does not give notice to the Tenant withdrawing its approval), despite the provisions of clause 5.6(h), then the costs of any additional improvements, additions or alterations to be undertaken to the Premises and/or the Building, to satisfy the requirements of the Building Act, will not be payable by the Tenant or chargeable to the Tenant under clause 5.7(b) if:
(i)
and to the extent that the Building did not comply with the provisions of the Building Act current as at the commencement of the initial term of this Lease (and, for the avoidance of doubt, not including any subsequent legislation amending the Building Act whether or not the same has retrospective effect); and
(ii)
the Alterations being undertaken are of a type that would normally be undertaken as part of a normal fitting out of office premises.
5.7
Compliance with laws & notices
(a)
The Tenant will at all times comply with:
(i)
all statutes, ordinances, regulations, by-laws or other enactments (whether or not in place as at the Commencement Date) relating to the use, occupation or operation of the Premises and/or Carparks by the Tenant or persons under the control of the Tenant;
(ii)
all requirements, notices or orders given by any Authority; and
(iii)
all requirements of the Landlord's insurer(s) notified by the Landlord in writing and consistent with normal insurance industry practice. The Tenant will not be required to carry out any structural alterations, additions or repairs or replace or install any building services or other plant or equipment unless required by reason of the particular use of the Premises and/or Carparks or the number, sex or special needs of the persons employed by the Tenant in the Premises and will not be liable to discharge the Landlord's obligations as owner of the Building under the Building Act unless any particular obligation is the responsibility of the Tenant as an occupier of the Premises.
(i)
comply strictly with any building consent in respect of any work being carried out by or on behalf of the Tenant;
(ii)
comply with any notice to rectify given by a relevant Authority in respect of any building work carried out by or on behalf of the Tenant;
(iii)
not do or allow anything which would constitute a breach by the Landlord of any obligation under the Building Act; and
(iv)
when undertaking any work in or about the Premises not allow the Premises to be open to members of public or allow use of the Premises by members of the public if that would be in breach of section 363 of the Building Act.
(c)
Where any system serving the Premises requires certification by an independent qualified person under the Building Act, and the maintenance responsibilities for that item are the responsibility of the Tenant, the Tenant will ensure that a suitable independent qualified person inspects, makes the necessary reports and certifies that item in accordance with that Act. The Tenant will forward the appropriate certificates and reports to the Landlord within five (5) Working Days of the inspection being due in accordance with the Act, in order to allow the Landlord to issue the Warrant of Fitness for the Building.
(d)
The Tenant will ensure that its use of the Premises does not breach the Resource Management Act 1991. The Tenant will bring to the immediate attention of the Landlord any abatement notice issued under that Act and will immediately comply at its cost with any such abatement notice which relates to the Tenant or the Tenant's use of the Premises.
(e)
The Tenant will immediately bring to the attention of the Landlord any requirements, notices or orders affecting the Premises or the Building which may come to the attention of or be served on the Tenant (whether or not the Tenant is obliged to comply with the same).
5.8
Entry by landlord to view and effect repairs and alterations
The Landlord will have the right to enter the Premises and the Carparks at all reasonable times and on reasonable notice (but at any time and without notice in the case of an emergency):
(a)
to view the state of repair and to ascertain whether or not there has been any breach of this Lease;
(b)
to carry out repairs or other works (including earthquake strengthening works which the Landlord, acting reasonably, deems necessary or desirable to undertake) to the Premises, the Carparks, building services or any adjacent building;
(c)
to carry out at the Tenant's cost any work required to remedy a defect which it is the Tenant's duty to repair if the Tenant has not within a reasonable time following receipt of written notice from the Landlord remedied the defect;
(d)
for the purpose of complying with any legislation or with any notice served on the Landlord or Tenant for which the Tenant is not responsible under this Lease;
(e)
in the event of the Premises, the Carparks or the Building being destroyed or damaged, for the purpose of rebuilding or restoration; and
(f)
to refurbish the Building or any part thereof after putting in place an appropriate programme for such works,
provided that in exercising such rights the Landlord will use all reasonable endeavours to minimise any disturbance caused to the Tenant.
5.9
Removal of alterations on expiry
Without prejudice to the general obligation of the Tenant to reinstate the Premises pursuant to clause 5.1, the Tenant will prior to the expiry or earlier termination of this Lease:
(a)
remove all Alterations owned by the Tenant;
(b)
if required by the Landlord a reasonable time prior to that expiry or earlier termination, remove any alterations to building services effected by the Tenant, whether within or outside the Premises;
(c)
make good damage to the Premises and the Building caused by any removal under clauses 5.9(a) and 5.9(b);
(d)
remove all of the Tenant's rubbish from the Premises and the Building; and
(e)
leave the Premises and the Building clean and tidy.
In the event that the Tenant does not comply with clauses 5.9(a) and/or (b) then ownership of the Alterations will pass to the Landlord and the cost of making good resulting damage and the cost of removal shall be recoverable from the Tenant.
5.10
Failure to comply with make good and reinstatement obligations
In the event that the Tenant fails to comply with its obligations pursuant to this clause 5 by the expiry or earlier termination of this Lease, then as from that particular date, the Tenant will pay the Landlord Annual Rent and the Tenant's Share of Operating Expenses (including local body rates) at the rates payable immediately preceding the expiry or earlier termination of this Lease until such time as the Tenant's obligations pursuant to clause 5 have been complied with in full. This is without prejudice to the Landlord's right to recover losses from the Tenant in accordance with clause 6.5.
6.
Insurances and indemnities
6.1
Landlord to insure building
(a)
The Landlord will insure the Building (including but not limited to windows and other glass) under a full replacement and reinstatement value policy against destruction and damage by fire, flood, explosion, lightning, storm, earthquake, volcanic activity, acts of civil authority and such other risks (if any) as the Landlord reasonably determines from time to time.
(b)
Despite clause 6.1(a):
(i)
where the Landlord is unable to obtain insurance cover for the Building on a replacement basis at a cost that the Landlord reasonably considers to be economic, the Landlord's obligation pursuant to clause 6.1(a) will be satisfied by the Landlord holding cover on an indemnity basis; and/or
(ii)
if no cover is available for a particular risk (at a cost that the Landlord reasonably considers to be economic) then the Landlord shall not be in breach of its obligation pursuant to clause 6.1(a) by not insuring against such risk.
(c)
The Landlord will notify the Tenant in writing, within a reasonable time, of any material changes to the Landlord's insurance policy.
(d)
The Tenant acknowledges and agrees that, to the extent specified in this clause 6.1, the Landlord:
(i)
may not have fully insured the Building; and/or
(ii)
may not have insured the Building in respect of all risks specified in this Lease or otherwise.
The Tenant will keep current at all times a policy or policies:
(a)
of public risk insurance applicable to the Premises and the business carried on in the Premises for an amount of not less than the Public Risk Insurance Sum (being the amount which may be paid arising out of any one event);
(b)
for the replacement of all Alterations to the Premises and to the plant machinery and equipment in the Building owned by the Tenant and all the Tenant's fixtures and fittings; and
(c)
for business interruption for such period as reasonably required by the Landlord.
Such policies will be effected with an insurance company and in respect of risks (and on terms) acceptable to the Landlord (acting reasonably) and the Tenant will if requested provide the Landlord from time to time with copies of the relevant policies and certificates of currency.
6.3
Tenant not to prejudice landlord's insurance or premium rate
The Tenant or persons under the control of the Tenant will not do or permit anything whereby:
(a)
any insurance may be rendered void or voidable; or
(b)
the premium payable on any insurance is liable to increase unless the Landlord and the Landlord's insurer consent to the increase and the Tenant has paid the extra premium.
6.4
Tenant to occupy premises at its risk
The Tenant occupies and uses the Premises and the Carparks at the Tenant's risk and releases the Landlord to the full extent permitted by law from all liability which may arise in respect of any damage occurring toany property in or about the Building except to the extent that the damage has been caused or contributed to by an act of negligence or breach of an express term of this Lease by the Landlord.
The Tenant will indemnify the Landlord against all losses for which the Landlord may be or becomes liable for arising out of the negligence of the Tenant or persons under the control of the Tenant or the Tenant's breach of any of the terms of this Lease except to the extent that any such losses have been caused or contributed to by an act of negligence or breach of an express term of this Lease by the Landlord.
Notwithstanding anything in this Lease to the contrary, the parties acknowledge and agree that to the extent of any excess payable in respect of any insurance policy held by the Landlord pursuant to clause 6.1, such excess will represent an amount in respect of which the Landlord has not insured, or has not fully insured. In the event that the Landlord makes any claim under its insurance by reason of any act or omission of the Tenant or persons under the control of the Tenant, the Tenant will reimburse to the Landlord the amount of the excess.
6.7
Damage to property in premises
If any property in the Premises is damaged or destroyed through any cause no part of the loss will be recoverable from the Landlord (irrespective of the cause of the damage or destruction) except in the case where the damage has been caused or contributed to by an act of negligence or breach of an express term of this Lease by the Landlord.
If the Premises are destroyed or damaged to such an extent as to be untenantable or the Building is totally destroyed then this Lease will terminate as from the date of such destruction or damage but without releasing either party from liability for any previous breach of this Lease.
7.2
Partial destruction/damage
If the Premises, Building or Carparks are destroyed or damaged but not so as to make the Premises untenantable, then (subject to the rights of any mortgagees and to the granting of all necessary third party consents) the Landlord will expeditiously expend all insurance money it receives in respect of the damage in reinstating the Premises, Building and the Carparks. The Landlord will not be bound to expend any moneys in excess of the insurance money actually received.
7.3
Termination by landlord
(a)
In the event that clause 7.2 applies and:
(i)
any part(s) of the Building are so destroyed or damaged as to render the Building substantially untenantable and in the Landlord's opinion repair and reinstatement is impracticable or undesirable; or
(ii)
the Landlord considers that it must undertake major rebuilding;
(iii)
the insurance moneys are insufficient to cover the cost of reinstating the Premises and/or Building in accordance with the requirements of clause 7.9; or
(iv)
the third party consents required to reinstate the Premises and/or Building are not available
then, within a reasonable period after the damage or destruction the Landlord may terminate this Lease by written notice to the Tenant and the Lease Term will cease twenty (20) Working Days from the date of service of the Landlord's Termination Notice.
(b)
The parties agree that:
(i)
the Landlord shall determine what constitutes "major rebuilding" under clause 7.3(a)(ii); and
(ii)
the Landlord waives its right to serve a Landlord's Termination Notice pursuant to clause 7.3(a)(i) or (ii) if a Landlord's Reinstatement Notice has already been served (or a reasonable period after the damage or destruction has passed) but, otherwise, a Landlord's Termination Notice may be served at any time that complies with the requirements of clause 7.3(a).
(i)
clause 7.2 applies and, as a result, the Tenant is unable to occupy the Premises (or a significant part of the Premises so that the Tenant's ability to conduct its business from the Premises is significantly impaired); and
(ii)
the Landlord has not already served a Landlord's Termination Notice,
(iii)
within a reasonable period after the damage or destruction the Tenant may request the Landlord in writing to serve a Landlord's Reinstatement Notice;
(iv)
the Landlord will serve a Landlord's Reinstatement Notice within a reasonable period of receipt of that request (unless the Landlord first serves a Landlord's Termination Notice); and
(v)
in the event that the Reinstatement Period is more than nine (9) months the Tenant may terminate this Lease, by serving written notice on the Landlord. For clarity, in the event that the Reinstatement Period is less than nine (9) months then the Landlord must reinstate the Premises in accordance with clause 7.2.
(i)
this Lease has not been otherwise terminated; and
(ii)
the Landlord does not complete the reinstatement of the Premises (in all material respects) by the expiry of the Reinstatement Period,
then the Tenant may terminate this Lease, by serving written notice on the Landlord provided that the Tenant can demonstrate that, as at the date of the Landlord's Reinstatement Notice, the reinstatement of the Premises was not reasonably achievable within the Reinstatement Period.
(c)
In the event that the Premises are Inaccessible for a continuous period of nine (9) months (and clause 7.2 does not apply), the Tenant may terminate this Lease by serving written notice on the Landlord.
(d)
A Tenant's Termination Notice must be served by the Tenant on the Landlord within thirty (30) Working Days of the Tenant's right to terminate arising, time being of the essence.
(e)
If this Lease is terminated pursuant to this clause 7.4 then the Lease Term will cease twenty (20) Working Days from the date of the Tenant's Termination Notice.
(f)
In the event that the Tenant has not made a request pursuant to clause 7.4(a)(iii) within the specified time period then the Landlord shall not be required to serve a Landlord's Reinstatement Notice and the Tenant shall have no right to serve a Tenant's Termination Notice.
(a)
damage or destruction has occurred to the Premises, Carparks or Building;, or
(b)
any part of the Premises and/or Carparks have to be vacated under clause 7.8; or
(c)
the Premises and/or Carparks are Inaccessible and the Landlord is entitled to make an insurance claim in respect of loss of rent solely because the Premises and/or Carparks are Inaccessible;
then a fair proportion of the Annual Rent, Tenant's Share of Operating Expenses and other moneys payable under this Lease (having regard to the impact that the relevant circumstances have on the Tenant's use and enjoyment of the Premises and Carparks) will be suspended until:
(d)
the completion of the repairs or reinstatement (if clause 7.5(a) applies);
(e)
the Tenant has possession of the whole of the Premises and/or Carparks again (if clause 7.5(b) applies); or
(f)
the Premises and/or Carparks are no longer Inaccessible, but only to the extent and for such period that loss of rent insurance is available to the Landlord (if clause 7.5(c) applies).
(a)
the Landlord has effected an indemnity insurance policy in respect of the Building in accordance with clause 6.1(b)(i); or
(b)
the Landlord does not have cover for a particular risk in accordance with clause 6.1(b)(ii) and the Premises are damaged solely as a result of that particular risk; and
(c)
clause 7.2 applies and the Tenant is unable to occupy the whole or substantially the whole of the Premises so that the Tenant's ability to conduct its business from the Premises is significantly impaired;
the Landlord must within eighty (80) Working Days of the damage occurring notify the Tenant in writing as to whether it will make up any shortfall in the funds available for the reinstatement of the Premises out of its own funds (as opposed to making up the shortfall through the Operating Expenses). If the Landlord does not notify the Tenant within the specified time period or does not agree to make up any shortfall, then the Tenant may terminate this Lease by serving written notice on the Landlord within forty (40) Working Days] of its receipt of the Landlord's notification or if no notification from the Landlord, the expiry of the specified time period. Time shall be of the essence in respect of the time periods referred to in this clause 7.6.
For the purposes of this clause 7 a "reasonable period" shall be what is reasonable having regard to:
(a)
the area in which the Building is located and/or the degree of accessibility to the Building;
(b)
the type and extent of damage and destruction;
(c)
the nature of the event(s) or incident(s) that caused the particular damage or destruction and any recurrence of those events or incidents; and
(d)
the extent of other damage and destruction caused by the event(s) or incident(s), and any resultant impact on the availability of professionals who are able to assess the damage or destruction to the Building and the options (if any) for, and cost of, reinstatement.
7.8
Premises to be vacated
If the Building or any part of the Building (other than the Premises) is so damaged as to render it impracticable for the Landlord to reinstate without obtaining possession of all or part of the Premises and/or the Carparks the Landlord may require the Tenant by one (1) months written notice to vacate all or part of the Premises and/or the Carparks for such period as may be necessary for the purpose of such reinstating. Upon the expiry of such notice the Landlord may take possession of the Premises and/or Carparks or such specified part and (subject to clause 7.5) the Tenant will not be entitled to any compensation or damages for that reason alone.
Any repair or reconstruction carried out by the Landlord under this clause 7 will be to such plan and form of construction as the Landlord elects and will satisfy the Landlord's obligations under this clause 7 provided it is reasonably equivalent to what existed prior to the damage.
8.
Use of premises and building
The Tenant will not use the Premises for any purpose other than the Permitted Use.
8.2
Suitability of premises
The Building has been designed as a commercial office building and the Tenant acknowledges that:
(a)
no representation, warranty or undertaking has been given by or on behalf of the Landlord in respect of the Building (other than as expressly set out in this Lease) and that no representation, warranty or undertaking has been given to entitle the Tenant to any exclusive trading or operating rights within the Building;
(b)
the Premises and the Carparks are entirely suitable for the purposes of the Tenant; and
(c)
the Landlord is the owner of all naming, signage and advertising rights in respect of the Building and that this Lease does not confer on the Tenant any such rights in respect of the Building.
The Tenant will not at any time do or permit in the Premises any offensive act which may be or become a nuisance, annoyance, obstruction or interference to other occupants of the Building or any other person. The Tenant will not hold any auction sale on the Premises and nor will the Tenant carry on any noisy or offensive business that may be or become a nuisance. The proper carrying on of the Permitted Use will not by itself be a breach of this clause 8.3.
The Tenant will not bring dangerous goods or appliances into the Premises and will not (except for customary office applications) use or permit the use of any chemicals or inflammable substances in the Premises.
8.5
Tenant not to create fire hazard
The Tenant will not do or permit anything to be done in the Premises or the Building which may create a fire hazard or which may breach the provisions of any insurance policy in respect of the Building. The Tenant will use its best endeavours to keep the Premises safe from fire theft or damage from any other cause. The Landlord may direct the Tenant to adopt fire safety measures satisfactory to the Landlord in respect of the Premises and/or the Building.
8.6
Payment of utility charges by tenant
The Tenant will pay to the relevant Authorities all charges for utilities and other services connected to the Premises (if separately metered) and if the Tenant makes default in payment the Landlord may pay the charges.
The Tenant will reimburse the Landlord in respect of penalties paid by the Landlord and arising as a result of the Tenant's default.
8.7
Landlord may supply consumables
The Landlord may at any time elect to supply to the Tenant any Consumables such as may be required for the Premises. If the Landlord provides this service and the Tenant chooses to be supplied with any Consumables then the following will apply:
(a)
The Tenant will purchase the relevant Consumables from the Landlord.
(b)
So far as it is possible to do so, the Landlord will supply the Tenant with all the Tenant's reasonable requirements of relevant Consumables subject to the provisions of this clause 8.7.
(c)
The prices to be charged will be at the rates equal to or lower than, and conditions equivalent to those imposed by the appropriate Authorities on persons using the same quantity of the relevant Consumables as the Tenant.
(d)
The Landlord will render Consumables invoices to the Tenant that include the terms upon which the Landlord supplies the relevant Consumables and information on the Tenant's Consumables consumption.
(e)
The Tenant will pay the Consumables invoices within five (5) Working Days of receipt of each Consumables invoice.
(f)
If the Tenant defaults in payment of any Consumables invoice the Landlord, at its discretion, may disconnect the Consumables supply. The Tenant will reimburse the Landlord for any default or penalty interest and disconnection and reconnection charges payable as a result of the Tenant's default.
(g)
The Landlord will not be responsible for any failure of the supply of Consumables (or continuity of supply) arising from any cause other than the Landlord's negligence.
(h)
The Landlord or the Tenant can terminate any arrangement for the supply of Consumables, under this clause 8.7, on the later of:
(i)
one (1) months notice to the other party; and
(ii)
the expiry of the notice period required under the terms upon which the relevant Consumables are supplied to the Landlord.
(a)
Except as provided in clause 8.8(b) the Tenant will not erect any Signs on any part of the Land or Building without the written consent of the Landlord and then only Signs of such colour, size and style and in such places approved by the Landlord.
(b)
The Landlord will maintain a directory of tenants in the main entrance of the Building. The Tenant's name will be installed in or on the directory by the Landlord at the cost of the Tenant and the form of the directory and the number of lines allocated to the Tenant on the directory will be determined by the Landlord in its absolute discretion having regard to the extent of the Tenant's occupancy.
(c)
The Tenant will maintain and keep in good order and repair all Signs erected by the Tenant.
(d)
If, at the expiry or earlier termination of this Lease, the Tenant fails to remove any Signs and to make good any damage or disfigurement caused by that removal then the Landlord may undertake that work and the Tenant will pay on demand any costs and expenses incurred by the Landlord in doing so.
(a)
The Tenant will not bring, or permit to be brought, upon the Premises any merchandise, machinery, article, plant or equipment of a weight, nature or size likely to impose or cause on the floors, walls, lifts or any other parts of the Premises, Building or Land any stress, strain or weight likely to damage, overload or weaken or cause any movement or structural defect in the Building.
(b)
No articles or materials (or group of articles or materials) may be placed or stored on any of the floors of the Building in excess of any Floor Loading Restrictions. All damage done to the Building or Land by the Tenant moving those articles and materials into, out of or within the Building must be made good and paid for by the Tenant upon demand from the Landlord.
(c)
Before any safe or any other heavy article is moved into, out of or within the Building by the Tenant the Tenant must give to the Landlord at least forty-eight (48) hours written notice of the intention to move it. If required by the Landlord, the moving will be done under the supervision of the Landlord or a responsible person approved by the Landlord. The Tenant will reimburse the Landlord on demand for the reasonable costs incurred by the Landlord in supervising the move.
(d)
The Tenant will pay the reasonable costs of any consultant required by the Landlord to satisfy itself of the loading implications of any heavy articles or materials placed or stored, or proposed to be placed or stored, on any of the floors of the Building by the Tenant.
The Landlord will allow the Tenant to use the Common Areas in common with the Landlord and all other persons authorised by the Landlord but only for the purposes for which each portion or facility is designed and subject always to the Rules. The Tenant acknowledges that the Landlord is not obliged to allow the Tenant access at all times to such parts of the Common Areas as are not required for the proper use of the Premises.
8.11
Tenant to comply with rules
The Tenant or persons under the control of the Tenant will at all times observe the Rules.
8.12
Right for landlord to vary rules
The Landlord will have the right to make reasonable variations and additions to the Rules provided that no such variation or addition derogates materially from the rights of the Tenant under this Lease. In the event of any material inconsistency between the provisions of this Second Schedule and the Rules, this Second Schedule will prevail.
(a)
Subject to the other provisions of this Lease the Landlord reserves the right to:
(i)
improve, extend, vary or reduce the Common Areas and to alter and deal with the same as it determines; and
(ii)
construct or permit the construction of works to or in any part or parts of the Building (excluding the Premises) (including any earthquake strengthening works which the Landlord, acting reasonably, deems necessary or desirable to undertake);
(b)
The Tenant acknowledges that it is not entitled to and will not make any claim arising out of the Works undertaken pursuant to clause 8.13(a) including but not limited to any resulting dust, noise, access restrictions or other inconvenience or disturbance to the Tenant provided that the Landlord complies with its obligations in clauses 8.13(c) and 8.13(d).
(c)
In carrying out the Works, the Landlord will:
(i)
use all reasonable endeavours to cause as little disturbance to the Tenant as practicable;
(ii)
comply with clauses 5.6(d)(x) to (xiii) in relation to the Works (as if it were the Tenant); and
(iii)
allow the Tenant to make representations in relation to the programme for the Works to which the Landlord will have due regard.
(d)
Any Works carried out must not:
(i)
materially affect access to the Premises or use and enjoyment of the Premises; or
(ii)
materially adversely affect the amenity of the Building (on more than a temporary basis).
8.14
Environmental initiatives
Throughout the Lease Term, the Tenant will participate in any Environmental Initiatives in relation to the Building at its own cost.
Notwithstanding any other provision of this Lease, neither party will do, permit or suffer to be done in connection with the Premises and/or the Building any act which may adversely affect:
(a)
any certification that has been obtained for the Building pursuant to any of the Ratings Tools; or
(b)
the Landlord's ability to obtain a certification pursuant to any of the Rating Tools.
(a)
The Landlord warrants as at the Commencement Date that the Percentage NBS for the building is that specified in Item 24 of the First Schedule.
(b)
If the Landlord becomes aware at any time during the term of the Lease, that the Percentage NBS for the Building has changed then the Landlord will promptly advise the Tenant of the change in writing.
If at any time during the Lease Term:
(a)
any Annual Rent is in arrears for ten (10) Working Days;
(b)
there is a default by the Tenant in respect of any obligation of the Tenant other than payment of Annual Rent and such default is not remedied within a reasonable period after notice has been given to the Tenant;
(c)
execution is levied against any of the assets of the Tenant and remains unsatisfied;
(d)
the Tenant (not being a company) is declared bankrupt or insolvent or assigns his/her estate or enters into a deed of arrangement for the benefit of creditors; or
(e)
the Tenant (being a company) either:
(i)
goes into liquidation (other than a voluntary liquidation for the purposes of reconstruction or amalgamation approved in writing by the Landlord);
(ii)
is wound up or dissolved;
(iii)
enters into a scheme of arrangement with any of its creditors; or
(iv)
has a receiver or voluntary administrator appointed,
subject to the Landlord having served, in accordance with section 353 of the Property Law Act, a valid notice pursuant to section 245 or 246 (as the case may be) of that Act, it will be lawful for the Landlord to re-enter the Premises and cancel this Lease (and remove or otherwise deal with any goods fittings, fixtures and effects found on the Premises) without releasing the Tenant from any liability in respect of any antecedent breach.
9.2
Landlord may remedy tenant's default
The Landlord may remedy at any time without notice any default by the Tenant under this Lease and in such case all costs incurred by the Landlord will be paid by the Tenant to the Landlord on demand.
9.3
Meaning of annual rent
For the purposes of this clause 9 Annual Rentmeans all sums payable by the Tenant from time to time under this Lease, including (but not limited to):
(b)
the Tenant's share of Operating Expenses;
(c)
local authority rates;
(d)
sums owed on account of Consumables; and
(e)
reimbursement of costs incurred by the Landlord where the Tenant has defaulted under this Lease.
No waiver by the Landlord of any breach of this Lease will operate as a waiver of any similar or subsequent breach. No custom or practice which may exist or develop between the parties will be construed to waive or lessen any rights, powers or privileges at law or in equity for the Landlord to insist upon the strict observance by the Tenant of this Lease.
(a)
Any breach of the following covenants by the Tenant will be deemed to be a breach of an essential term of this Lease:
(i)
the covenant to pay Annual Rent and any other moneys to the Landlord where such breach gives rise to a right of re-entry under this Lease;
(ii)
the covenant dealing with assignments, subletting and parting with possession;
(iii)
the covenant dealing with the use of the Premises; and
(iv)
the covenant dealing with Alterations, if any Alterations require building consent under the Building Act.
(b)
The Tenant covenants to compensate the Landlord in respect of any breach of an essential term of this Lease and the Landlord is entitled to recover damages from the Tenant in respect of such breaches. The Landlord's entitlement under this clause 9.5 is in addition to any other remedy or entitlement to which the Landlord is entitled (including the right to cancel this Lease).
(a)
In the event that the Tenant's conduct (whether acts or omissions) constitutes a repudiation of this Lease or of the Tenant's obligations under this Lease the Tenant covenants to compensate the Landlord for the loss or damage suffered by reason of the repudiation.
(b)
The Landlord is entitled to recover damages against the Tenant in respect of repudiation for the damage suffered by the Landlord up to the Expiry Date.
(c)
The Landlord's entitlement to recover damages will not be affected or limited by:
(i)
the Tenant abandoning or vacating the Premises;
(ii)
the Landlord electing to cancel this Lease; or
(iii)
the Landlord accepting the Tenant's repudiation.
(d)
The Landlord is entitled to damages against the Tenant through to the Expiry Date including the periods before and after the Tenant has vacated the Premises and before and after the cancellation, abandonment, termination, repudiation, acceptance of repudiation or surrender by operation of law [referred to in clause 9.6(c)], whether any proceedings are instituted before or after such conduct.
(e)
If the Tenant vacates the Premises, whether with or without the Landlord's consent, the Landlord (if it wishes to claim compensation from the Tenant under clause 9.6(a) (but not otherwise)) must take reasonable steps to mitigate the Landlord's damages and to endeavour to lease the Premises at a reasonable rent and on reasonable terms.
The Tenant paying the Annual Rent and other monies payable to the Landlord under this Lease and observing the Tenant's covenants in this Lease will peaceably hold the Premises without improper interruption by the Landlord or persons lawfully claiming under the Landlord until the Expiry Date or earlier termination of this Lease.
The Landlord will pay all rates, taxes and assessments charged upon the Land or the Building except those which the Tenant, other occupants in the Building or the Body Corporate (if applicable) are obliged to pay.
10.3
Maintenance of roof and exterior
The Landlord will use its best endeavours to keep the roof and exterior of the Building in a weatherproof condition and in good repair. The Landlord's liability under this clause will be limited to the cost of carrying out repairs within a reasonable time after it has received notice in writing of any want of repair.
10.4
Repair of common areas
The Landlord will at all times keep and maintain the Common Areas in a good and substantial state of repair and will use its best endeavours to keep lighting and other common facilities and services in the Building operational during the Hours of Unrestricted Access to the Building.
The Landlord will have the Common Areas and all other parts of the Building which are not the direct responsibility of any lessee (including, without limitation, the exterior of windows, grease traps, and carparking areas) cleaned in a proper manner and rubbish regularly removed from the Building.
10.6
Air conditioning, lifts and other services
(a)
Where any Air Conditioning Plant is provided or installed in the Building or the Premises by the Landlord the Landlord will use its best endeavours to provide reasonable working conditions for the comfort of the Tenant during the Normal Days and Hours of Air Conditioning.
(b)
The Landlord will use best endeavours to keep the lift(s) and escalator(s) in the Building (if any) in operation and available for the use of the Tenant at all times provided that;
(i)
on days when the Building is not open to the public the Landlord need not keep more than one lift in operation; and
(ii)
the Landlord will use best endeavours to ensure that at least one lift is operative outside the Hours of Unrestricted Access to the Building.
(c)
In addition to the services referred to above the Landlord will use its best endeavours to provide and maintain gas, electricity and water now or at any time serving the Building and to provide [access controls and procedure] for the Building.
10.7
Services to be maintained by the landlord
The Landlord will use its best endeavours to maintain all services now or at any time serving the Building but if any of such services:
(a)
fail to function or are inoperative; or
(b)
if the Landlord (by reason of any statute, regulation or notice issued by any competent authority) is compelled to shut off or remove any such service,
the Tenant will not be entitled to terminate this Lease for that reason alone. Where the Landlord's performance of this covenant is dependent on supply of a service or a Consumable from a third party the Landlord's obligation is to use its best endeavours to have such third party continue to make the relevant supply available to the Building.
Where any repair or maintenance work which the Landlord covenants to carry out pursuant to this clause 10 is covered by a guarantee held by the Landlord, the Landlord agrees to use all reasonable endeavours to enforce its rights against the guarantor under the relevant guarantee at the Landlord's cost and, for the avoidance of doubt, and despite any other provisions of this Lease, the cost of such enforcement by the Landlord will not be charged to the Tenant.
In the event that the Landlord sells the Building during the Lease Term, the Landlord will, as part of that sale, transfer to the purchaser on settlement of that sale, any sums held by the Landlord in accordance with paragraph (n) of the Fourth Schedule, after making allowance for payment of any relevant expenses incurred by the Landlord that are not due for payment until after that settlement.
(i)
ensure that the Building is managed to a good standard; and
(ii)
comply with all statutes, ordinances, regulations, bylaws or other enactments (whether or not in place as at the Commencement Date) relating to the Land and the Building except to the extent these are the responsibility of the Tenant under the terms of this Lease or otherwise.
(b)
The Landlord will use its best endeavours to:
(i)
ensure that other occupants of the Building do not do or permit any offensive act in the Building which is a nuisance to other occupants of the Building;
(ii)
enforce the Rules against the other occupants of the Building; and
(iii)
ensure that those other occupants of the Building comply with clauses 5.6(d)(x) to 5.6(d)(xiv) (inclusive) when undertaking works.
10.11
Access and Air Conditioning
(a)
The Tenant will be entitled to use the Premises throughout the 24 hours of each day in the year. Access to the Premises for the Tenant's staff outside the Hours of Unrestricted Access to the Building and on Saturdays, Sundays and gazetted public holidays will be regulated by the security procedures provided by the Landlord.
(b)
The Landlord may close the Building or any part as may be required to be closed by operation of law or in the case of an emergency or if the Landlord otherwise deems such action reasonably necessary for the safety of any person or property in the Building. The Landlord may also close, lock off or otherwise control the Common Areas or any part from time to time to protect the Landlord's or any tenant's interest or any public interest as the Landlord may from time to time deem necessary.
(c)
In the event that the Landlord, at the request of the Tenant, operates the Air Conditioning Plant for any part of the Building or Premises outside the Normal Days and Hours of Air Conditioning, then all reasonable costs and expenses of so doing will be borne by the Tenant and paid to the Landlord immediately upon demand.
The parties will comply with the provisions of the Tenth Schedule in relation to the Carparks.
In the event that the Landlord holds a Bank Guarantee by way of security for the performance by the Tenant of its obligations in this Lease, the following provisions will apply.
At each Rent Review Date or (if later) at the determination of each review of the Premises Rent or the Carpark Rent (as applicable), the Tenant will provide to the Landlord a replacement or additional Bank Guarantee (as appropriate) so that the total amount guaranteed from each Rent Review Date bears the same proportion to the new Annual Rent as the initial Bank Guarantee Sum bears to the initial Annual Rent.
(a)
If any of the events specified in clause 9.1 occur, the Landlord may (without prior notice to the Tenant) demand payment under the Bank Guarantee in or towards making good any loss or damage sustained by the Landlord as a result of that event.
(b)
If the Landlord demands payment under the Bank Guarantee:
(i)
in respect of unpaid Rent or other moneys payable under this Lease, the Landlord will give the Tenant a written statement of the amounts unpaid; or
(ii)
in order to reimburse the Landlord for expenditure incurred in remedying any other default by the Tenant, the Landlord will give the Tenant relevant details of that expenditure (including, where appropriate, copies of the invoices and receipts for the amounts expended),
then the Tenant will promptly provide either:
(i)
a replacement Bank Guarantee for the Bank Guarantee Sum; or
(ii)
an additional Bank Guarantee equal to the amount demanded or applied by the Landlord under this clause 12.3.
(c)
No action by the Landlord under this clause 12.3 will operate as a waiver of the relevant event specified in clause 9.1.
12.4
Tenant to keep current
The Tenant will at all times ensure that any Bank Guarantee is kept current and enforceable.
If at any time during the Lease Term the Landlord transfers the Landlord's interest in the Building the Tenant will at the request and cost of the Landlord provide to the Landlord a replacement Bank Guarantee in favour of the transferee.
12.6
Return of Bank Guarantee
Unless the Landlord has commenced proceedings against the Tenant, the Landlord will on the request of the Tenant return the Bank Guarantee within three (3) months after the final expiry of this Lease. In this clause 12.6 "final expiry" shall mean (where applicable) the termination of any periodic tenancy under clause 2.1.
In any case where the bank providing the Bank Guarantee requires a right to pay the Landlord all or part of the Bank Guarantee Sum without demand having been made then:
(a)
any sum paid without demand to the Landlord by that bank will become a security deposit (Security Deposit) in favour of the Landlord to be held by the Landlord until the date specified in clause 12.6 (as if reference to the Bank Guarantee was reference to the Security Deposit);
(b)
Annual Rent and all other payments due to be made by the Tenant under this Lease will continue to be payable by the Tenant, without any adjustment or account being taken of the setting up of the Security Deposit;
(c)
in the event that any of the events specified in clause 9.1 occur, the Tenant authorises the Landlord to deduct from the Security Deposit the amount of any loss or damage sustained by the Landlord as a result of that event but without prejudice to the Landlord's other rights at law and under this Lease;
(d)
if the Landlord deducts any sum from the Security Deposit it will provide to the Tenant the relevant information as referred to in clause 12.3(b); and
(e)
the Landlord will be entitled to require that additional sums are paid to the Landlord by way of Security Deposit on the same basis as provided in this Lease for additional or replacement Bank Guarantees to be provided to the Landlord.
13.1
Tenant to pay landlord's costs
(a)
the Landlord's reasonable legal costs in respect of the negotiation, preparation and completion of this Lease, or any renewal or variation, and the Landlord's costs in obtaining any consents or approvals associated with the granting of this Lease or any renewal or variation;
(b)
all expenses (including legal costs on a solicitor-client basis) for which the Landlord is liable in consequence of any breach by the Tenant of any of the covenants of this Lease;
(c)
the Landlord's reasonable costs incurred in considering any request by the Tenant for the Landlord's consent or approval to any matter contemplated by this Lease; and
(d)
any GST payable in respect of the above costs.
13.2
Tenant to permit viewing of premises
The Tenant will permit the Landlord to show the Premises to prospective purchasers of the Building at all reasonable times during the Lease Term and to prospective tenants during the last nine (9) months of the Lease Term (in each case on reasonable notice).
All notices, requests, demands, consents, approvals, agreements or other communications to or by a party to this Lease:
(a)
must be in writing and must, to the extent applicable, comply with the provisions of Part 7 of the Property Law Act;
(b)
must be signed by the sender or if a company, by its Authorised Officer;
(c)
must be served in accordance with section 353 of the Property Law Act if given pursuant to sections 245 or 246 of that Act; and
(d)
in all other cases (unless otherwise required by sections 352 to 361 of the Property Law Act) will be taken to have been served:
(i)
in the case of delivery in person, when delivered to or left at the address of the recipient shown in this Lease (as the case may be) or at any other address which the recipient may have notified to the sender;
(ii)
in the case of facsimile transmission, when recorded on the transmission result report unless:
(A)
within 24 hours of that time the recipient informs the sender that the transmission was received in an incomplete or garbled form; or
(B)
the transmission result report indicates a faulty or incomplete transmission; and
(iii)
in the case of mail, on the fifth Working Day after the date on which the notice is accepted for posting by the relevant posting authority.
The Tenant will not register a caveat against the Land.
13.5
Landlord not required to register
The Landlord will not be obliged to do any act or thing or grant any consent or co-operate with the Tenant to register this Lease under the Land Transfer Act 1952.
(a)
In the event of any dispute arising between the parties in respect of this Lease except as otherwise expressly provided, the parties will, without prejudice to any other right or entitlement they may have pursuant to this Lease or otherwise, explore whether the dispute can be resolved by agreement between them using informal dispute resolution techniques such as negotiation, mediation, independent expert appraisal or any other alternative dispute resolution technique. The rules governing any such technique will be as agreed between the parties or as selected by LEADR NZ (Leading Edge Alternative Dispute Resolvers).
(b)
If the dispute is not resolved within ten (10) Working Days of written notice by one party to the other of the dispute either party may refer the dispute to arbitration before a sole arbitrator under the Arbitration Act 1996.
(c)
The arbitration will be commenced by one party notifying the other party in writing of its requirement that a dispute or disputes be referred to arbitration and by nominating a sole arbitrator.
(d)
If the other party does not accept the arbitrator nominated by the first party and both parties are unable to agree on a single arbitrator within five (5) Working Days of the service of a notice under clause 13.6(c), then either party may request the President of the New Zealand Law Society to nominate a sole arbitrator.
(e)
If an arbitrator fails to act in pursuance of the arbitration, either party may request the President of the New Zealand Law Society to nominate (within ten (10) Working Days) a replacement for that arbitrator who will act in place of the defaulting arbitrator.
(f)
The arbitrator will give reasons for his or her award and those reasons will form part of the award.
(g)
Either party may appeal to the High Court on any question of law arising out of an award.
(h)
The provisions of the First and Second Schedules to the Arbitration Act 1996 apply except as otherwise varied in the above clauses.
(i)
Nothing in clauses 13.6(a) to 13.6(h) will prevent:
(i)
either party from applying to the High Court for urgent equitable relief in respect of any matter under this Lease; or
(ii)
the Landlord from exercising any of the rights and powers of the Landlord in clause 9.1.
13.7
Covenants relating to land
The Landlord will at all times throughout the Lease Term observe and comply with all of the covenants and encumbrances affecting the Land and the terms, covenants and conditions of any easements registered against the title to the Land and the Tenant will also do so to the extent doing so will not derogate from the rights of the Tenant under this Lease.
13.8
Exclusive jurisdiction
(a)
This Lease is governed by the laws of New Zealand. The parties to this Lease submit to the exclusive jurisdiction of the New Zealand courts (but without prejudice to clause 13.6).
(b)
The parties irrevocably waive any objection to New Zealand being the venue of any legal process on the basis that the process has been brought in an inconvenient forum.
14.
Unit Title provisions
14.1
Application of these provisions
If, at the Commencement Date, the Premises comprise part of a Unit Title Development or if a Unit Plan is deposited in respect of the Building, then the following provisions of this clause 13.8(b) will apply from the Commencement Date or the date of deposit of a Unit Plan (as the case may be).
14.2
Act and rules paramount
This Lease will be subject to the provisions of the rules of the Body Corporate as may be varied from time to time and the provisions of the Unit Titles Act. The Tenant will observe and perform the rules of the Body Corporate to the extent that they relate to the Tenant's use of the Premises and the Common Areas and do not derogate from the Tenant's rights under this Lease.
The Landlord's obligation to insure the Building will be satisfied by the Body Corporate maintaining the same insurance covers in accordance with the Unit Titles Act.
The Tenant's obligation to indemnify the Landlord pursuant to clause 6.5 is extended to include the Body Corporate but only to the extent that the Body Corporate is not fully indemnified under any policy of insurance.
14.5
Landlord's Obligations
The Landlord will observe and perform all of the Landlord's obligations as a member of the Body Corporate and will use the Landlord's best endeavours to ensure that the Body Corporate complies with its rules and the provisions of the Unit Titles Act.
Where in this Lease the consent of the Landlord is required in respect of any matter then the like consent of the Body Corporate will also be required if the consent of the Body Corporate to any such matter would be necessary under its rules or the Unit Titles Act.
14.7
Additional provisions
If at any time during the Lease Term a Unit Plan is deposited in respect of the Building then:
(a)
The Tenant's Share of Operating Expenses will be the proportion set out in Item 11(b) of the First Schedule.
(b)
The Landlord's obligations under clause 10 will be satisfied by the Landlord using its best endeavours to ensure that the Body Corporate performs those obligations, to the extent that such obligations are those of the Body Corporate.
14.8
Stratum estate provisions paramount
If this clause 14 applies it will be paramount to any clause or provision contained elsewhere in this Lease which is inconsistent with this clause.