Deed of Lessor’s Consent to Lessee’s Security · (iii) {*}a mortgage of the Lease as annexed to...

Deed of Lessor’s Consent to Lessee’s Security

Document Number: Document Date:

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Brisbane Markets Limited ABN 39 064 983 017

of 14

DATED this day of 2012.

BETWEEN:

DEED OF LESSOR'S CONSENT TO LESSEE'S SECURITY Unit «Unit», Building «Building»

Brisbane Markets Sherwood Road

Rocklea Qld 4106


PO Box 80

Brisbane Markets Qld 4106

Tel: 3379 1062 Fax: 3379 4903

THE LESSOR: BRISBANE MARKETS LIMITED ABN 39 064 983 017

THE LESSEE: «Lease_Name» ACN «ACN»

THE FINANCIER: «Financier_Name_and_ABN»

THE GUARANTOR: «Guarantors», «Guarantor_1», «Guarantor_2», «Guarantor_3», «Guarantor_4»



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THIS DEED made the day of , 2012.

BETWEEN: BRISBANE MARKETS LIMITED ABN 39 064 983 017 of c/- The Chief Executive Officer, Upper Level Brisbane Markets Commercial Centre Sherwood Road Rocklea in Queensland Queensland (“the Lessor”)

AND: «Lease_Name» ACN «Building» C/- «Address_1» «Address_» of the Brisbane Markets, Sherwood Road

of Rocklea in Queensland ("the Lessee") AND: «Financier_Name_and_ABN» of «Financier_Address» ("the Financier")

AND: «Guarantors», «Guarantor_1», «Guarantor_2», «Guarantor_3», «Guarantor_4» all C/- «Address_1» «Address_» of the Brisbane Markets, Sherwood Road of Rocklea in Queensland ("the Guarantor")

RECITALS:

A. The Lessee is the tenant of the Lessor under a certain lease in writing dated «Date_of_Lease_Execution» Registered No. «Building» ("the Lease") of Unit «Unit» Building «Building» being premises ("the Demised Premises") situated in one of the buildings comprising the complex known as "Brisbane Markets" erected on the land described in the Schedule to this Deed ("the Land") for the term of 10 years years commencing on «Lease_Commencement_Date» and terminating on «Lease_Expiry_Date» ("the Lease Term") at the rent and upon and subject to the covenants and conditions contained in the Lease.

B. The Financier has entered into the following securities ("the Security") with the Lessee:

(i) {*}a bill of sale in respect of certain chattels situated at in or upon the Demised Premises or to be installed or deposited in the Demised Premises as set out in the inventory contained in Schedule 2 of this Deed;

(ii) {*}a chattel lease in respect of certain chattels situated at in or upon the Demised Premises or to be installed or deposited in the Demised Premises as set out in the inventory contained in Schedule 2 of this Deed;

(iii) {*}a mortgage of the Lease as annexed to Appendix 1 of this Deed;

(iv) {*}a mortgage debenture.

C. Pursuant to the Security the Lessor and the Lessee have agreed to grant to the Financier and the Financier has agreed to accept a right of entry into and upon the Demised Premises on the terms and conditions contained in this Deed.

D. By a certain guarantee in writing dated «Date_of_Guarantee_Execution» ("the Guarantee"), the Guarantor gave a guarantee and indemnity in favour of the Lessor in respect of the performance of the Lessee under the Lease on the terms and conditions contained in the Guarantee.

OPERATIVE PART:

1. DEFINITIONS

In this Deed, unless otherwise provided, the expressions following (either with or without capital letters) have the following meanings respectively assigned to them:

"Business Day" means any day other than a Saturday, Sunday or public holiday in the City of Brisbane.

"the Financier" means the Financier named and described at the commencement of this Deed and each executor, administrator, successor and assign of that party and, unless inconsistent with the subject matter or context, includes any receiver, receiver and manager, administrator, liquidator or other agent appointed by the Financier and any other person from time to time authorised by the Financier.

"the Frontage" means the windows and surrounding structures enclosing the front of the Demised Premises and any associated entrance doors of the Demised Premises (including any roller shutter doors, safety or



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security grille) and all materials and structures used in the construction of and any alterations or additions to the same.

"the Guarantor" means the guarantor (if any) named and described at the commencement of this Deed and each executor, administrator and successor of that party.

"the Lessee" means the Lessee named and described at the commencement of this Deed and each executor, administrator, successor and permitted assign of that party.

"the Lessor" means the Lessor named and described at the commencement of this Deed and each executor, administrator, successor and assign of that party and, unless inconsistent with the subject matter or context, includes each person from time to time authorised by the Lessor.

"the Secured Property" means the property in or about the Demised Premises secured under the Security, but excludes:

a. any property owned or supplied by or on behalf of the Lessor; and

b. any property that the Lessor has the right to purchase from the Lessee or otherwise acquire under the Lease.

"the Security" has the meaning referred to in the recitals of this Deed.

2. INTERPRETATION

a. The provisions of this clause apply unless otherwise provided or unless there is something inconsistent in the subject matter or context.

b. Each covenant by two or more persons as a party is made jointly by all and severally by each.

c. References to any statute include any relevant State, Federal or other statute and any enactment amending, consolidating or replacing the same and any rule, regulation, ordinance, by-law, proclamation or order given or made under or pursuant to the same whether present or future.

d. References to a thing include the whole and any one or more parts of the thing.

e. References to any party include any one or more or all of the persons comprising that party.

f. References to a covenant include a term, an agreement, an acknowledgment, an obligation and a condition, whether positive or negative, express or implied and whether running with the land or not.

g. References to writing or words of a similar effect include printing, typing and facsimile and all other means of reproducing words in a visible form.

h. References to month mean calendar month.

i. Words denoting a particular gender include each other gender, words denoting the singular number only include the plural number and vice versa, and words denoting an individual include a corporation and vice versa.

j. The headings to clauses in this Deed shall be ignored.

k. All payments of money by any party to the Lessor shall be made in Australian dollars without any deduction or set off whatever.

l. The date of this Deed is the date of execution by the party who executes it last.

m. Each person signing this Deed as an attorney, officer, trustee or other agent for any party warrants to all other parties that as at the date of execution, the person signing has been duly constituted by and fully empowered to bind the principal for the purpose and has not received any notice of revocation of the relevant power.

n. Words and expressions defined in the Lease have the same meanings in this Deed. If there is any conflict or inconsistency between any definition or other provision in this Deed and in the Lease, the relevant definition or other provision in this Deed prevails.

o. Where the day or last day for doing anything or on which an entitlement is due to arise under this Deed is not a Business Day, the relevant day is the next following Business Day.



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p. Despite the domicile or residence of any party, this Deed is governed by the laws of Queensland. Any legal proceedings relating to this Deed or the Lease or both may, at the option of the Lessor, be instituted, removed to, heard and determined in any Court of competent jurisdiction in Queensland selected by and convenient to the Lessor.

q. If any provision of this Deed is or becomes invalid, illegal or unenforceable, that provision shall so far as possible be read down to give it a valid operation of a partial character. If that is not possible, the provision shall be severed and the remaining provisions shall not in any way be affected or impaired by the same.

r. This Deed immediately binds each of its signatories, even if another signatory may not have executed or may never execute this Deed, or if any such execution is or becomes void or voidable.

3. LESSOR'S CONSENT TO THE SECURITY

The Lessor consents to the grant of the Security on the terms and conditions contained in this Deed.

4. RIGHT OF ENTRY

In consideration of this Deed, the Lessor and the Lessee grant the Financier a licence to enter onto the Demised Premises under the Security during the Lease Term and to remove the Secured Property.



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5. CONDITIONS OF ENTRY

However, the Financier must not exercise its rights under clause 4 without first complying with the following conditions:

a. The Financier must give to the Lessor not less than two (2) Business Days prior written notice of its intention to exercise its right of entry and removal of the Secured Property, except in an emergency when the Financier must give such notice as is reasonable in the circumstances.

b. After receipt by the Lessor of that notice, any exercise by the Financier of its right of entry and removal of the Secured Property from the Demised Premises must be carried out:

i. expeditiously during such hours as the Lessor may reasonably require (which may be outside usual business hours) so as to cause minimum inconvenience and annoyance to the Lessor and any other tenant or occupier in the vicinity of the Demised Premises;

ii. only in the presence of the Lessor or a person authorised by the Lessor or, in the case where the Lessor is or includes a corporation, in the presence of an officer of that corporation to be appointed by the corporation for the purpose; and

iii. at the sole and absolute risk of the Financier and at the cost of the Financier.

6. REMOVAL OF PROPERTY

a. The Financier must not remove anything from the Demised Premises if such removal is likely to cause damage to the Demised Premises, or endanger the stability of the structure of the Demised Premises or the building of which the Demised Premises may form part.

b. However, the Lessor shall in that circumstance permit the removal if the Financier first pays to the Lessor such estimated amount as the Lessor may reasonably require as security towards the cost of rectification. Upon the Financier rectifying all damage to the reasonable satisfaction of the Lessor, the amount paid (or balance unexpended) shall be repaid to the Financier.

7. NO ENTRY INTO POSSESSION

Unless otherwise specifically permitted under this Deed, any entry and removal under this Deed shall not be construed or permitted as the Financier entering into possession of the Demised Premises under the Security or in any other way whatever.

8. REMOVAL OF RUBBISH

The Financier shall upon completion of any removal of the Secured Property remove all rubbish and leave the Demised Premises in a neat and tidy condition.

9. THE FRONTAGE

If a Frontage is contained in or appurtenant to the Demised Premises, then despite anything to the contrary contained or implied in this Deed or in the Security, the Lessee and the Financier acknowledge that the Frontage is not subject to the Security and shall not be removed or otherwise dealt with by the Lessee and the Financier or any of them except in accordance with the Lease.

10. HOARDING

If the Demised Premises forms part of a complex of premises and the Financier wishes to remove any Secured Property, the Financier shall (if required by the Lessor and prior to any removal of property) erect a protective hoarding around the entry and Frontage of the Demised Premises of such a type as the Lessor may reasonably require so that any dismantling of the Secured Property is safely carried out and is not visible from outside the Demised Premises.

11. FINANCIER AS MORTGAGEE IN POSSESSION

a. Despite anything to the contrary contained or implied in this Deed, if the Security comprises or includes a mortgage of the Lease and a mortgage debenture or any of the same and the Financier wishes to enter into possession of the Demised Premises or the business of the Lessee or both as mortgagee in possession or otherwise under the Security:



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i. the Financier must give to the Lessor not less than two (2) Business Days' prior written notice of the same, except in an emergency when the Financier shall give such notice as is reasonable in the circumstances; and

ii. after receipt by the Lessor of that notice the Lessor shall permit the Financier to enter into such possession, subject to the following conditions:

A. the Financier must as from the date of such entry into possession remedy any defaults of the Lessee under the Lease that may then be subsisting to the reasonable satisfaction of the Lessor, and remain in possession and observe and perform all the covenants of the Lessee under the Lease until such time as the Security is discharged, or the Financier assigns the Lease with the consent of the Lessor, or the term of the Lease expires by effluxion of time, whichever first occurs;

B. the Financier must use its best endeavours to sell the business of the Lessee and the Secured Property and assign the Lease (with the consent of the Lessor) for the best price and as expeditiously as possible; and

C. any proceeds received by the Financier by reason of any sale of such business and the Secured Property and assignment of the Lease shall be applied firstly in payment to the Lessor of any rent or other moneys payable to the Lessor under the Lease and this Deed and, secondly, in accordance with the Security.

b. The obligations contained in this clause concerning the duty of the Financier in respect of defaults by the Lessee occurring prior to the Financier's entry into possession are in modification of and substitution for any rights and obligations the parties might otherwise have had under Section 80 of the Land Title Act 1994 (Q). The Financier must not seek to rely on the provisions of Section 80 to alter the obligations of the parties as contained in this Deed.

c. The Financier is not liable to comply with any covenants in the Lease but only to the extent that the covenants are required to be complied with after the date on which the Financier assigns the interest of the Lessee in the Lease to an assignee who is acceptable to the Lessor and where the assignment otherwise complies in all respects with the covenants relating to assignment contained in the Lease.

12. LESSEE'S COVENANTS

The Lessee:

a. must not regard the Lessor as being in breach of any covenant (including any covenant for quiet enjoyment) under the Lease;

b. must not object nor make any claim or institute any proceedings whatever (including any injunctive or other relief or by way of damages or abatement of any rent or other moneys payable under the Lease) against the Lessor; and

c. indemnifies and agrees to keep the Lessor at all times indemnified to the fullest extent permitted at law from and against all actions, claims, demands, losses, damages, costs and expenses of every description whatever incurred by the Lessor or for which the Lessor may be or become liable (whether in contract, tort, by statute or otherwise however);

in respect of or arising from the exercise or attempted exercise by the Financier of any of its rights under this Deed.

13. FINANCIER TO MAKE GOOD DAMAGE, INDEMNITY ETC.

The Financier:

(a) i. must at its cost repair and make good to the reasonable satisfaction of the Lessor any damage

done in or about the Demised Premises; and

ii. indemnifies and agrees to keep the Lessor at all times indemnified to the fullest extent permitted at law from and against all actions, claims, demands, losses, damages, costs and expenses of every description whatever incurred by the Lessor or for which the Lessor may be or become liable (whether in contract, tort, by statute or otherwise however);



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in respect of or arising from the exercise or attempted exercise by the Financier of any of its rights under this Deed; and

(b) acknowledges that the Lessor is not liable for the payment of any moneys nor for the performance of any covenants of any party under the Security.

14. PRESERVATION OF LESSOR'S RIGHTS

Nothing in this Deed shall in any way be construed:

a. as a release or variation in favour of the Lessee or any other person in respect of the covenants by the Lessee or any other person under the Lease;

b. as a covenant by the Lessor not to institute or continue with any proceedings or other remedies against the Lessee and any guarantor or other person or any one or more of them or from doing any one or more of those things for breach of any covenant under the Lease.

15. TERMINATION OF THIS DEED

a. This Deed terminates and the rights of the Financier under this Deed cease on the earlier of the following:

i. that day which is fourteen (14) days after the expiration of the Lease Term by effluxion of time; and

ii. that day which is fourteen (14) days after written notice from the Lessor to the Financier of termination of the Lease for any reason other than by effluxion of time.

b. If any Secured Property under the Security permitted to be removed under this Deed has not been removed from the Demised Premises by the date of termination of this Deed, the Lessor may deal with the same as if the Financier had no interest or title to them whatever.

16. COSTS

a. The Lessor is not liable to pay any costs charges or other expenses on any account whatever in relation to the exercise or attempted exercise by the Financier of any of its rights and remedies under or pursuant to this Deed.

b. The Lessee must pay to the Lessor on demand all reasonable costs (including legal costs on a solicitor and own client basis) and expenses whatever paid by the Lessor (or for the payment of which the Lessor may be or become liable) of and incidental to this Deed, including the negotiation, preparation, execution and stamping of this Deed, whether or not the transaction evidenced by this Deed is completed, and all stamp duty on this Deed.

c. The Lessee and the Financier must pay to the Lessor on demand all reasonable costs (including legal costs on a solicitor and own client basis) and expenses whatever paid by the Lessor (or for the payment of which the Lessor may be or become liable) of and incidental to the exercise or attempted exercise by the Financier of any of its rights and remedies under or pursuant to this Deed, without preventing the Financier and the Lessee from recovering any such costs from each other under any other agreement between the Lessee and the Financier.

d. All parties to this Deed authorise and direct the solicitors for the Lessor from time to time pursuant to the Trust Accounts Act (Q) to pay to themselves or otherwise apply any monies of those parties or any of them at any time and from time to time held in trust by such solicitors for any purpose towards payment of all costs and expenses or any of the same referred to in this clause.

17. CONSENT RESTRICTED TO THE SECURITY

a. The Consent of the Lessor contained in this Deed:

i. is restricted to the particular Security referred to in this Deed; and

ii. does not extend to any further or other mortgaging, charging or other dealing by on or behalf of the Lessee in respect of the demised Premises or the Lease or of any estate or interest in respect of the same.

18. MORTGAGEE'S CONSENT



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If the Land is at any time subject to any mortgage, charge or other encumbrance in favour of any person ("the Mortgagee") and the consent of the Mortgagee is required to this Deed, the Lessee and any other party to this Deed shall do all things and execute such form of mortgagee's consent containing such covenants as the Lessor may require in order to obtain such consent.

19. NOTICES

a. Any notice, demand, action, writ, court proceeding or other communication (a "Notice") from any party to another under this Deed shall be deemed to have been duly given and served when delivered or sent by post or facsimile transmission to the party to which the Notice is required or permitted to be given or served under this Deed.

b. The address for service shall be at the relevant address of the relevant party set out at the commencement of this Deed, or at such other address as may from time to time be notified by the relevant party to the other or others for the purpose of this clause or otherwise in accordance with the Lease or at law.

c. A Notice that is posted shall be deemed to be served on the Business Day next following the date of posting. A Notice sent by facsimile transmission shall be deemed to have been given or served on receipt by the sender of a transmission report from the sender's facsimile machine that all pages of the Notice have been transmitted.

d. Any Notice given by any party shall be signed by the relevant party giving the Notice or by the solicitors of the relevant party or, in the case of the Lessor, by any managing agent of the Lessor. In the case of a corporation, any Notice may be signed by any director, manager, secretary or other authorised officer of such corporation.

20. GOODS AND SERVICES TAX

a. In this clause:

i. “GST” has the same definition as that term has in the GST Legislation;

ii. “GST Legislation” means the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and any associated Commonwealth legislation, regulations and publicly-available rulings;

iii. “GST Liability” means the liability of the relevant party making a Taxable Supply (the “Supplier”) to another party (the “Recipient”) under or pursuant to this document to pay GST under the GST Legislation in respect of that Taxable Supply; and

iv. other expressions not defined above have the meanings as defined in the GST Legislation.

b. The Recipient must:

i. pay to the Supplier the amount of the Supplier’s GST Liability (if any); and

ii. make that payment to the Supplier at the same time as the Recipient makes the payment for the relevant Taxable Supply.

c. The Supplier must deliver to the Recipient a tax invoice in a form which complies with the GST Legislation to enable the Recipient to claim any input tax credits that the Recipient may be entitled to claim in respect of the payment by the Recipient for the Taxable Supply. The tax invoice must be delivered not later than the due date for the payment referred to in paragraph b of this clause.

d. Any amount to be reimbursed to a party (“Reimbursed Party”) under this document by another party (“Reimbursing Party”) which does not relate to a taxable supply made by the Reimbursed Party shall be reduced by the amount of any input tax credits to which the Reimbursed Party is entitled in respect of the creditable acquisition for which reimbursement is being sought. The intention is that the Reimbursing Party only reimburses the Reimbursed Party for the net cost of the acquisition so as to avoid any element of price exploitation.

e. It is agreed that all amounts payable by the Recipient to the Supplier under this document are exclusive of GST, unless otherwise expressly stipulated.

21. LESSEE’S BOND



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a. The Lessor may without prejudice and in addition to any other rights or remedies resort to and apply any moneys held by the Lessor as a cash bond or secured to the Lessor, under any bank guarantee, banker’s undertaking or other similar security (the “Lessee’s Bond”) given by the Lessee to the Lessor under the Lease toward the payment of any moneys that may be or become payable by the Lessee to the Lessor, under or pursuant to this Deed.

b. The Lessor may resort to the Lessee’s Bond on the same terms and conditions as the Lessor may do so under the Lease as if the relevant provisions were set out in this Deed at length but in which references to the Lease include this Deed.

22. CONFIRMATION OF THE GUARANTEE

The Guarantor consents to this Deed and confirms that the liability of the Guarantor to the Lessor under the Guarantee applies and extends to the liability of the Lessee to the Lessor under this Deed on the same terms and conditions as if the terms of the Guarantee were set out in this Deed at length and as if references in the Guarantee to the Lease included references to this Deed.



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SCHEDULE 1

"the Land"

Description of Lot County Parish Title Reference

Lot 703 on RP 198160 Stanley Yeerongpilly 18130200



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SCHEDULE 2

"the Inventory"

Number of Items Description of Item

{21} {22}

SCHEDULE 2

"the Security"



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IN WITNESS OF THE SAME this Deed has been duly executed.

EXECUTED by BRISBANE MARKETS LIMITED ABN 39 064 983 017 as the Lessor by its duly constituted attorney ANDREW ALEXANDER GEORGE YOUNG under Power of Attorney No 706128934 this day of 2012 in the presence of:

] ..............................................................

……………………………………. A Justice of the Peace/Solicitor EXECUTED by «Financier_Name_and_ABN» as the Financier by its duly constituted attorney …………………………………………………….. under Power of Attorney No. ________________ this day of 2012 in the presence of:

]............................................……..............

……………………………………. A Justice of the Peace/Solicitor EXECUTED by «Financier_Name_and_ABN» as the Financier this day of 2012 in accordance with the Corporations Act:

] ] ] ] ] ]

.......................................................... Director ........................................................... Director

SIGNED SEALED AND DELIVERED by «Lease_Name» as the Lessee this day of 2012 in the presence of:

] ] ] ]

.........................................................

…………………………………….

A Justice of the Peace/Solicitor

{*}OR

EXECUTED by «Lease_Name» ACN «ACN» as the Lessee this day of 2012 in accordance with the Corporations Act:

] ] ] ] ] ]

.......................................................... Director ........................................................... Director

SIGNED SEALED AND DELIVERED by «Guarantors» as the Lessee’s Guarantor this day of 2012 in the presence of:

] ] ] ]

...........................................................



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…………………………………….


SIGNED SEALED AND DELIVERED by «Guarantor_1» as the Lessee’s Guarantor this day of 2012 in the presence of:

] ] ] ]

...........................................................

…………………………………….



] ] ] ]

...........................................................

…………………………………….



] ] ] ]

...........................................................

…………………………………….



] ] ] ]

...........................................................

…………………………………….


{*}OR

EXECUTED by Shareholder Pty Ltd Guarantee as the Lessee’s Guarantor this day of

] ]

........................................................... Director



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2012 in accordance with the Corporations Act: ] ] ] ]

........................................................... Director

Deed of Lessor’s Consent to Lessee’s Security · (iii) {*}a mortgage of the Lease as annexed to...

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