Ngai Tahu SettlementDoug Graham Treaty of Waitangi Negotiations
LEASE TO BCL OF THE WAIMUMU
SITE (NO.3 )
MEMORANDUM OF LEASE
(1) [ ] ("Lessor"); and
(2) BROADCAST COMMUNICATIONS LIMITED ("Lessee").
SCHEDULE OF LAND
Lot & D.P. No. or other legal description, or Document No.
Encumbrances, Liens & Interests
THE LESSOR DOES HEREBY LEASE TO THE LESSEE and THE LESSEE DOES TAKE
ON LEASE the Land for the term and at the rental and subject to the
covenants, conditions, agreements and restrictions set out in this Lease which
comprises the Reference Schedule, the Schedule of Terms and the Schedule of
IN WITNESS WHEREOF these presents have been executed this
day of 1998.
SIGNED for and on ) __________________________
behalf of ) Director
[ ] )
by: ) __________________________
in the presence of: ) Director/Secretary
SIGNED for and on ) __________________________
behalf of ) Director
COMMUNICATIONS LIMITED )
by: ) __________________________
in the presence of: ) Director/Secretary
THE REFERENCE SCHEDULE
ITEM 1: LESSOR PARTICULARS:
ITEM 2: LESSEE PARTICULARS:
Name: Broadcast Communications Limited
ITEM 3: LAND:
All the Lessor's land more particularly outlined in red on the plan attached
and marked "A", being [insert new legal description].
ITEM 4: TERM:
ITEM 5: DATE OF COMMENCEMENT:
ITEM 6: FURTHER TERM:
Subject to the Lessee exercising the right of renewal provided in clause 3,
one further term of 20 years
ITEM 7: RENEWAL DATE:
ITEM 8: FINAL EXPIRY DATE:
ITEM 9: ANNUAL RENT:
$18,750.00 plus GST
ITEM 10: REVIEW DATES:
On [fifth anniversary of commencement date] and five yearly thereafter
throughout the Term and, subject to the Lessee exercising its right of renewal
in clause 3, the renewal term.
ITEM 11: PERMITTED USE:
Broadcasting and telecommunications purposes
SCHEDULE OF TERMS
INTERPRETATION AND DEFINITIONS
1. For the purpose of the interpretation or construction of this Lease,
unless the context provides otherwise:
1.1 Words importing any gender include all other genders.
1.2 Words importing the singular include the plural and vice versa.
1.3 Headings are for sake of reference only and do not in any way limit or
govern the construction of the terms of this Lease.
1.4 References to:
(a) schedules are references to schedules in this Lease;
(b) clauses are references to clauses in this Lease; and
(c) parties are references to the parties to this Lease and their respective
successors and assigns (if permitted in the case of the Lessee under Clause 13),
unless expressly stated otherwise.
1.5 Any reference in this Lease to any statute includes all amendments,
revisions, substitutions or consolidations made from time to time to that
1.6 A "person" includes any individual person, a corporation, a company or
other body corporate, an unincorporated body of persons, a public body, firm,
partnership, joint venture, association, organisation or trust, in each case
whether or not having separate legal personality.
1.7 "writing" includes words visibly represented or reproduced.
1.8 Where approvals or consents are required in this Lease, they shall not be
unreasonably or arbitrarily withheld or delayed and such approvals or consents
may be given with conditions which are both reasonable and relevant to the
circumstances giving rise to the request to seek approval or consent. All
approvals or consents shall be required for each separate occasion,
notwithstanding any prior consent or approval obtained for the like purpose on a
1.9 Any consent or waiver, express or implied, by the Lessor to or of any
breach of any covenant, condition, or duty of the Lessee will not be construed
as a consent or waiver to or of any other breach of any other covenant,
condition or duty. No waiver of any breach of the Lessee will be implied from
the Lessor's failure to exercise the Lessor's rights, or any of them, in respect
of that breach.
1.10 Nothing in this Lease shall be construed to any trust, commercial
partnership or joint venture between the parties.
1.11 The invalidity of any part or provision of this Lease shall not affect
the enforceability of any other part or provision of this Lease.
1.12 The parties acknowledge and agree that certain covenants set out in this
Lease (in particular provisions relating to the treatment of Improvements on
termination or sooner determination of this Lease) shall continue beyond expiry
or sooner determination of this Lease for the benefit of the parties
notwithstanding such expiry or sooner determination.
1.13 Any provision in this Lease to be performed by two or more persons shall
bind those persons jointly and severally.
1.14 Any reference in this Lease to "month" or "monthly" shall mean,
respectively, calendar month and calendar monthly.
1.15 "Authority" means any Government authority, whether national or
territorial or any other Government or statutory authority appointed or
established by statute in New Zealand having jurisdiction over or in respect of
the Land and any Improvements.
1.16 "business days" means any day other than a Saturday or Sunday or
statutory or anniversary holiday (in the Southland District).
1.17 "Date of Commencement" means the date specified in Item 5 of the
1.18 "Improvements" means all improvements, of any nature, whether
constructed or installed on or in the Land before or at any time during the term
of this Lease (including any renewal or variation extending the term of this
Lease), and, without limitation, include any building, transmitters, masts,
pylons, or other structure on or fixed to the Land and all roads, paving,
sealing, mechanical services, plant, machinery, equipment, fixtures and
1.19 "Land" means the land described in the Schedule of Land, and, unless
expressly stated, excludes the Improvements.
1.20 The expressions "Lessor" and "Lessee" include where the context permits
the Lessee's sublessees and other lawful occupiers of the Land and,
respectively, the Lessor's and the Lessee's contractors, agents and invitees
(which persons shall be those deemed to be persons under the control of the
Lessor and the Lessee, as the case may be).
1.21 "Reference Schedule" means the schedule preceding this Schedule of
Terms, described as such and forming part of this Lease.
1.22 "Regional Plan" and "District Plan" shall have ascribed to them the
definitions set out in section 2 of the Resource Management Act 1991 and
"Regional and District Plans" shall be construed accordingly and shall extend to
include any successor or replacement planning regime imposed by the relevant
Authority having the relevant jurisdiction.
1.23 "Road" means the road and road area outlined in green on the plan
attached marked "A".
1.24 "Schedule of Land" means the schedule preceding the Reference Schedule,
described as such and forming part of this Lease.
1.25 "Schedule of Terms" means this schedule, described as such and forming
part of this Lease.
2.1 The term of this Lease shall commence on the Date of Commencement and
shall be for the period specified in Item 4 of the Reference Schedule.
3. RIGHT OF RENEWAL OF LEASE
3.1 If the Lessee has not been in breach of this Lease and has given to the
Lessor written notice to renew this Lease at least three months before the end
of the Term, then the Lessor will, at the cost of the Lessee, renew this Lease
for a further term of 20 years from the Renewal Date, as specified in the
Reference Schedule, as follows:
(a) The annual rent shall be agreed upon or failing agreement shall be
determined in accordance with clause 5 but such annual rent shall not be less
than the rent payable during the period of twelve (12) months immediately
preceding the Renewal Date;
(b) Such annual rent shall be subject to review during the further term on
the review dates or if no dates are specified then after the lapse of the
equivalent periods of time as are provided in the Lease for rent reviews and on
the same basis as set out in clause 5;
(c) The renewed lease shall otherwise be upon and subject to the covenants
and agreements expressed and implied in this Lease, except that the term of this
Lease, including such further term, shall expire on or before the Final Expiry
Date specified in the Reference Schedule.
(d) Pending the determination of the annual rent in accordance with clause
3.1(a), the Lessee shall pay the rent proposed by the Lessor in accordance with
the application of clause 5. Upon determination an appropriate adjustment shall
3.2 The Lessor shall prepare a memorandum of renewal recording the basis on
which the Lease has been renewed in accordance with clause 3.1 and the Lessee
will forthwith enter into and execute such memorandum which will then be
executed by the Lessor (with the Lessee paying the Lessor's reasonable legal and
other costs in relation to the preparation; negotiation, completion, stamping
and registration of the document).
4.1 The Lessee shall pay the annual rent specified in Item 9 of the Reference
Schedule from the Date of Commencement until the rent is increased under Clause
5, at which time the Lessee will pay the annual rent at the increased rate.
4.2 Rent shall be paid on the first day of each month by equal monthly
payments in advance, but the first payment shall be on the Date of Commencement
(which will be paid on a proportionate basis for any broken period running until
the first day of the next month).
4.3 All rent shall be paid without any deduction or set-off whatsoever, by
direct automatic bank payment to the Lessor, or as the Lessor may otherwise
5. RENT REVIEW PROVISIONS
5.1 The annual rent shall be reviewed by the Lessor on the dates specified in
Item 10 of the Reference Schedule. At any time not earlier than four months
prior to each relevant date (each such date being the "review date"), the Lessor
may give notice in writing to the Lessee ("Notice") of the Lessor's assessment
of the current market rent for the Land, which the Lessor proposes shall be the
annual rent of the Land to apply from that particular review date. If the Lessor
does not provide such notice to the Lessee by the relevant review date then the
annual rent of the Land to apply from that date shall be the annual rent
referred to in clause 5.4(a), which rent shall be calculated and agreed between
the Lessor and the Lessee as soon as possible following that date.
5.2 Following receipt by the Lessee of the Notice the parties shall endeavour
to agree upon the current market rent, but if agreement is not reached within
fourteen (14) days then the new rent may be determined either:
(a) by one party giving written notice to the other requiring the new rent to
be determined by arbitration; or
(b) if the parties so agree by registered valuers acting as experts and not
as arbitrators as follows:
(i) each party shall appoint a valuer and give written notice of the
appointment to the other party within fourteen (14) days of the parties agreeing
to so determine the new rent;
(ii) if the party receiving a notice fails to appoint a valuer within the
fourteen (14) day period then the valuer appointed by the other party shall
determine the new rent and such determination shall be binding on both parties;
(iii) The valuers appointed before commencing their determination shall
appoint an umpire who need not be a registered valuer;
(iv) the valuers shall determine the current market rent of the Land and if
they fail to agree then the rent shall be determined by the umpire;
(v) each party shall be given the opportunity to make written or verbal
representations to the valuers or the umpire subject to such reasonable time and
other limits as the valuers or the umpire may prescribe and they shall have
regard to any such representations but not be bound thereby,
when the current market rent has been determined, the arbitrators or the
valuers shall give written notice thereof to the parties the notice shall
provide as to how the costs of determination shall be borne and the notice shall
be binding on the parties.
5.3 In determining the current market rent, the valuers and any umpire shall,
in addition to other relevant factors disregard:
(a) any deleterious condition of the Land, if such condition results from any
breach of this Lease by the Lessee;
(b) the value of any goodwill attributable to the Lessee's business;
(c) all Improvements; and
(d) the Lessor's rights of access and to conduct its farming operations, as
permitted in clause 26.2.
5.4 Notwithstanding the foregoing provisions of this clause, following each
review date the increase in the annual rent payable by the Lessee for the next
three years (ie until the next review date), shall be the greater of:
(a) the aggregate of:
(i) the annual rent payable by the Lessee for the 12 month period immediately
preceding the relevant review date; plus
(ii) a percentage of that rent equal to the sum of the percentage increase in
the Consumer Price Index (All Groups) ("CPI") for each year during the three
year period from the Commencement Date, or the immediately preceding review
date, as the case may be. (If the CPI is not in force at any time during that
period, an appropriate formula shall be agreed as to the proper calculation of
what the CPI figure would be at that time, as if the CPI was then in force. If
the parties cannot agree upon a proper calculation, then the matter will be
referred to arbitration in accordance with the provisions of this Lease and the
determination of the arbitrator or arbitrators shall be conclusive and binding
upon the Lessor and Lessee); and
(b) the current market rent for the premises.
5.5 Notwithstanding clause 5.4:
(a) the "greater than" calculation in clause 5.4 shall only apply where the
Lessor has given the Notice to the Lessee in accordance with clause 5.1; and
(b) under no circumstances will the new annual rent of the Land be less than
the annual rent payable during the period of twelve (12) months immediately
preceding the relevant review date; and
(c) any variation in the annual rent resulting from the application of this
clause 5 shall take effect on and from that particular review date.
5.6 Where a review, pursuant to this Clause 5, is completed after the
relevant review date, then:
(a) pending completion of the review, annual rent shall be paid at the rate
specified in the Notice; and
(b) on completion of the review, any overpayment of annual rent paid as from
the review date shall be paid by the Lessor to the Lessee.
5.7 If any moratorium or other law Act or regulation that applies to this
Lease has the effect of postponing any periodic review of annual rent as at the
review date, then if and whenever such moratorium is lifted or the law, Act or
regulation is repealed or amended so as to permit the annual rent to be
reviewed, then the review that has been postponed shall take place as at the
date that such moratorium is lifted or such law, Act or regulation is repealed
or amended. This is to the intent that the rent review shall establish the
annual rent as at such date and not as at the postponed review date, but any
subsequent rent review shall take place on the next following review date fixed
in accordance with this Clause 5.
5.8 Immediately upon the parties agreeing to pay a revised annual rent or on
determination under this Clause 5 the Lessee shall enter into an appropriate
registrable memorandum of variation of lease prepared by the Lessor's solicitors
recording such revised annual rent prepared by the Lessor (with the Lessee
paying the Lessor's reasonable legal and other costs in relation to the
preparation, negotiation, completion, stamping and registration of that
The Lessee will pay all charges incurred by the Lessee for electricity, gas,
water or power or other services in respect of the Land and Improvements
including all connection, disconnection, or other fees payable by the Lessee or
the Lessor to other authorities in respect of such services.
7. PAYMENT OF RATES AND IMPOSITIONS
The Lessee will pay all rates, taxes (including without limitation land or
improvements tax but excluding any income tax or capital gains tax or such
similar tax which is personal to the Lessor, which is imposed as a result of any
sale or other disposal of the Land or because of income gained by the Lessor
from the Land), charges, assessments, impositions and outgoings whatsoever which
now are or which during the term of this Lease or the renewal term shall be
taxed, rated, charged, assessed or imposed on the Land, any Improvements or on
the Lessor or Lessee in respect thereof by any Authority.
8. GOODS AND SERVICES TAX
The Lessee shall pay to the Lessor, upon demand, any taxes paid or payable by
the Lessor or accountable by the Lessor pursuant to the provisions of the Goods
and Services Tax Act 1985 or any similar tax levied in substitution therefor
including all amendments and any enactments in substitution of that Act, or
otherwise in respect of any payments made by the Lessee under this Lease
(including the payment of annual rent) or paid by the Lessor on behalf of the
Lessee's obligation to make such payment under this Lease.
9. INTEREST ON OVERDUE RENT OR OTHER MONEY
Without prejudice to other rights powers and remedies of the Lessor, ifany
annual rent, goods and services tax or other payment or amount owing by the
Lessee to the Lessor whatsoever pursuant to this Lease shall be in arrears and
unpaid for fifteen (15) business days after the due day for payment (whether any
formal or legal demand therefor shall have been made or not) then such unpaid
amounts shall bear interest on a daily basis compounded on monthly rests
computed from such due date until the date of payment in full of such amounts at
a rate being 300 basis points above the average 90 day bank bill buy rate
(described as the BID rate) at 10:45am on the date the payment was due as shown
on page BKBM (or its successor page) on the Reuters screen or at a rate based on
any successor screen or if there is none at a rate equal to 2% above the bank
overdraft rate of the Lessor's bank (in respect of the Lessor's current account)
at the time of any default and such interest shall be recoverable in the same
manner as rent in arrears.
10. USE OF THE LAND AND IMPROVEMENTS AND MAINTENANCE
10.1 The Lessee shall be permitted the right to carry out any activity
specified in Item 11 of the Reference Schedule.
10.2 Should any of the uses of the Land and any Improvements be permissible
only with the consent or licence of any Authority under or in pursuance of
statute or any Regional and District Plans or regulation or other enactment or
order of Court the Lessee shall obtain such consent or licence at the sole cost
and expense of the Lessee, including but not limited to any costs of financial
contributions required and the Lessee shall at all times comply with any
conditions of such consent, order or authority obtained.
10.3 Where the Lessee is lawfully obliged to obtain any licence, resource
consent (including any land use consent or discharge permit) or other consents
from any Authority, the Lessor agrees that it and any officer, or employee or
agent of the Lessor shall not raise any objection or requisition relating
thereto as landowner of the Land where the Lessee is using the Land for any use
permitted under this Lease and is not in any material breach at any time in the
future of any terms and conditions of this Lease.
10.4 The Lessor does not warrant:
(a) that the Land is or will remain suitable or adequate for any of the
purposes of the Lessee; or
(b) that the relevant Regional or District Plans permit the use specified in
Item 11 of the Reference Schedule or any other use.
10.5 The Lessee accepts the Land as being satisfactory in all respects and
with full knowledge of and subject to any prohibitions or restrictions on the
use of the Land.
10.6 During the term and, if applicable, the renewal term, the Lessee shall:
(a) maintain the Land in the same condition as at Commencement Date, fair
wear and tear excepted; and
(b) keep the Land reasonably free of all noxious weeds and pests and,
generally, care for the Land in a good and husbandlike manner.