1200 Buildings Environmental Upgrade Finance 4 May 2011

8/6/2019 1200 Buildings Environmental Upgrade Finance 4 May 2011

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Environmental UpgradeAgreement

Dated

Melbourne City Council, a body corporate established under the Local

Government Act 1989 (Vic) (MCC)

[To be inserted] (ABN [to be inserted]) (Owner)

[To be inserted] (ABN [to be inserted]) (Lending Body)


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Environmental Upgrade AgreementContents

0097620-0000001AU:636280.1

Environmental Upgrade Agreement6 May 2011

i

Details 1

General terms 3

1 Interpretation 3

1.1 Definitions 31.2 References to certain general terms 81.3 MCCs rights and remedies unfettered 9

2 Consideration 10

3 Environmental Upgrade Charge 10

3.1 Declaration of Environmental Upgrade Charge 103.2 Charge Obligations 103.3 Owner to make Charge Payments 113.4 Administrative Costs 123.5 MCCs priority in relation to Charge Obligations 123.6 Amendments to Charge Payment Schedule and Funding

Payment Schedule 123.7 Refund of overpayments 133.8 MCC to give notice to the Lending Body 143.9 Continuation of Charge Obligations 143.10 MCCs discretion as to rights in relation to Charge Obligations 143.11 When Charge Payment Schedule ceases to apply 15

3.12 Invoices 163.13 Application of Local Government Act 16

4 Collection by MCC 16

4.1 Collection role 164.2 Subcontracting 164.3 Charge Payments 164.4 Proceeds 164.5 Prepayment of Total Charge Amount by Owner 174.6 Satisfaction of Actual Funding Amount 174.7 Administrative procedures 17

4.8 No liability 175 Payment by MCC 18

5.1 Payment role 185.2 No subcontracting 185.3 Charge Payments 185.4 Prepayments 185.5 No liability 18

6 Confirmations 18

6.1 Confirmations from Owner 186.2 Confirmation from Lending Body 196.3 Confirmation from Owner and Lending Body 19


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7 Reinstatement of rights 20

8 Representations and warranties 20

8.1 General representations and warranties 208.2 Further representations and warranties from Owner 218.3 Further representations and warranties from Lending Body 21

9 Undertakings 22

9.1 Provision of funding 229.2 General undertaking 229.3 Further undertakings from Owner 229.4 Further undertaking from Lending Body 23

10 Dealing with interests 23

11 Costs and expenses 24

11.1

Owner to pay costs and expenses 2411.2 Owner to pay Taxes 24

12 Notices and other communications 24

12.1 Form - all communications 2412.2 Form - communications sent by email 2412.3 Delivery 2412.4 When effective 2512.5 When taken to be received 2512.6 Receipt outside business hours 2512.7 Communications by email preferred 25

13 GST 2513.1 Definitions and interpretation 2513.2 GST pass on 2613.3 Later adjustment to price or GST 2613.4 Tax invoices 2613.5 Reimbursements/Indemnities 27

14 General 27

14.1 Partial exercising of rights 2714.2 Remedies cumulative 2714.3 Inconsistent law 27

14.4 Variation 2714.5 Waiver 2714.6 Confidentiality 2714.7 Further steps 2814.8 Entire agreement 2814.9 No merger 2814.10 Severability 2814.11 No revocation of power of attorney 2814.12 Counterparts 2914.13 Governing law 29

Annexure 1 - Charge Payment Schedule 30

Annexure 2 - Funding Payment Schedule 31

Annexure 3 - Project (outline of works) 32

213635143_1Environmental Upgrade Agreement6 May 2011

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Annexure 4 - Project Budget 33

Annexure 5 - Enforcement Procedure 34

Annexure 6 - Representations and warranties 35

Annexure 7 - Consents and agreements of Existing Tenants 49

Annexure 8 Terms for advancing funds 50

Annexure 9 Accession Deed Poll 52Signing page 54


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Environmental Upgrade Agreement


1

Details

Parties MCC, Owner and Lending Body

MCC Name Melbourne City Council, a body corporate

established under the Local Government Act

ABN 55 370 219 287

Address [to be inserted]

Telephone [to be inserted]

Fax [to be inserted]

Email [to be inserted]

Attention [to be inserted]

Owner Name [to be inserted]

ABN [to be inserted]






Lending

Body

Name [to be inserted]

ABN [to be inserted]






Recitals A The Land is owned by the Owner, who wishes to carry out the

Project. MCC supports the carrying out of the Project.


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B The Lending Body has agreed to provide financial

accommodation to the Owner on the terms set out in annexure 9for the purposes of funding the Project.

C MCC, the Lending Body and the Owner have entered into this

agreement for the purposes of implementing the Project in

accordance with section 27M(1) of the City of Melbourne Act.

D The Environmental Upgrade Charge is payable by the Owner to

MCC for the Charge Period in relation to the Project inaccordance with the Charge Payment Schedule.

E Subject to the terms of this agreement, MCC will collect theCharge Payments from the Owner, and will pay to the LendingBody a portion of the Charge Payments (but not including any

Administrative Costs) that it receives from the Owner equal to

the Actual Funding Amount and will comply with its otherobligations under this agreement.

Date of

agreement

See Signing page


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3

General terms

1 Interpretation

1.1 Definitions

In this agreement, unless the context requires otherwise:

Actual Funding Amount means, at any time, if no Adjustment Date hasoccurred, the Funding or, if an Adjustment Date has occurred, the AdjustedFunding Amount as determined as at the most recent Adjustment Date.

ADI has the meaning it has in the Banking Act.

Adjusted Funding Amount means, at any time, the aggregate of all ChargePayments (if any) required to be paid by MCC to the Lending Body following themost recent adjustment in accordance with clause 3.6(b).

Adjustment Date means the date on which an Adjusted Funding Amountbecomes effective.

Administrative Costs means the administrative costs payable by the Owner toMCC in relation to the Environmental Upgrade Charge, as set out in the ChargePayment Schedule.

AFSL Holder means a person who holds an Australian financial service licenceissued under Chapter 7 of the Corporations Act.

Approved Signatory means:

(a) in the case of MCC, the chief executive officer of MCC;

(b) in the case of the Owner, a director or secretary of the Owner, or anofficer of the Owner whose title contains the words [to be inserted], or aperson performing the functions of any of them; and

(c) in the case of the Lending Body, a director or secretary of the Lending

Body, or an officer of the Lending Body whose title contains the wordsdirector, chief, head, associate or manager, or a personperforming the functions of any of them,

or any other person appointed by that party as an Approved Signatory for thepurposes of the Transaction Documents and notified to the other parties, providedthat no revocation of that appointment has been notified to the other parties.

Arrears means, as at any date, the aggregate of the amount of the ActualFunding Amount due with respect to all Charge Payment Dates occurring on orprior to that date less the aggregate of all amounts paid by MCC to the LendingBody under this agreement prior to that date excluding amounts with respect to

Penalty Interest paid by MCC to the Lending Body as contemplated byclause 3.3(h).


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Banking Act means the Banking Act 1959 (Cth).

Building means the building located at [to be inserted], described in certificateof title volume [to be inserted] folio [to be inserted].

Business Day means a day on which banks are open for general bankingbusiness in Melbourne (excluding Saturdays, Sundays and public holidays in that

place).

Capital Improved Value has the meaning it has in the Local Government Act.

Charge Expiry Date means the earlier of:

(a) the date on which the Charge Obligations are fully discharged by theOwner; and

(b) the date (if any) of a determination by MCC under clause 3.10(a)(iv) thatthe Environmental Upgrade Charge will no longer apply at all to theOwner and that the Charge Obligations have been fully discharged by

the Owner.

Charge Obligations means the obligations of the Owner to MCC to pay theEnvironmental Upgrade Charge.

Charge Payment means each amount payable by the Owner to MCC on aCharge Payment Date, as set out in the Charge Payment Schedule.

Charge Payment Date means each date on which payment is due from theOwner to MCC in respect of the Charge Obligations, as set out in the ChargePayment Schedule.

Charge Payment Schedule means the schedule specifying the Charge PaymentDates, the Charge Payments, the Total Charge Amount, the Actual FundingAmount, the Administrative Costs and the Total Administrative Costs as set outin annexure 1, as amended from time to time in accordance with clauses 3.6(b)and 3.6(f) (as applicable).

Charge Period means the period:

(a) commencing on the Commencement Date; and

(b) ending on the Charge Expiry Date.

City of Melbourne Act means the City of Melbourne Act 2001 (Vic).

Commencement Date means the date that the Environmental Upgrade Charge isdeclared under the City of Melbourne Act.

Controller has the meaning it has in the Corporations Act.

Corporations Act means the Corporations Act 2001 (Cth).

Default means any default by the Owner in relation to the Charge Obligations,including a failure by the Owner to pay by the due date any amount payableunder the Charge Obligations.

Details means the section of this agreement headed Details.


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Encumbrance means an interest or power:

(a) reserved in or over any interest in any asset including any retention oftitle; or

(b) created or otherwise arising in or over any interest in any asset under abill of sale, mortgage, charge (whether fixed or floating), hypothecation,

lien, pledge, caveat, trust or power,

by way of security for the payment of debt or any other monetary obligation orthe performance of any other obligation and includes any agreement to grant orcreate any of the above.

Enforcement Procedure means MCC's procedure concerning the waiver,deferral, recovery and enforcement of the Environmental Upgrade Charge andany other charge declared under section 27O of the City of Melbourne Act (byany means) as at the date of this agreement, as set out in annexure 5 and asamended in accordance with clause 3.10.

Environmental Upgrade Charge means the charge payable by the Owner toMCC in relation to the Project under the City of Melbourne Act and thisagreement.

Existing Secured Financier means any person in favour of whom the Owner hasgranted an Encumbrance in relation to the Land before the date of this agreement.

Existing Tenant means each tenant or occupier (other than the Owner) of theLand on the Commencement Date.

Foreign ADI has the same meaning as "foreign ADI" in the Banking Act

Funding means the aggregate of each amount set out in the Funding PaymentSchedule as at the Commencement Date.

Funding Limit means the maximum amount of financial accommodation thatmay be provided to the Owner on the terms set out in annexure 8 being, as at theCommencement Date, A$[to be inserted].

Funding Payment Date means each date set out in the Funding PaymentSchedule.

Funding Payment Schedule means the schedule set out in annexure 2, asamended from time to time in accordance with clause 3.6(c).

Government Authority includes the Crown, any government and anygovernmental, semi-governmental, public, administrative, regulatory or judicialentity. It also includes a statutory corporation, a self regulatory organisation or asupervisory authority established by statute and any market licensee of afinancial market (as defined in Chapter 7 of the Corporations Act) and anyoverseas stock or futures exchange.

A person is Insolvent if:

(a) it is (or states that it is) an insolvent under administration or insolvent(each as defined in the Corporations Act); or


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(b) it is in liquidation, in provisional liquidation, under administration orwound up or has had a Controller appointed to its property; or

(c) it is subject to any arrangement, assignment, moratorium or composition,protected from creditors under any statute, or dissolved; or

(d) an application or order has been made (and, in the case of an application,

it is not stayed, withdrawn or dismissed within 30 days), resolutionpassed, proposal put forward, or any other action taken, in each case inconnection with that person, which is preparatory to or could result inany of (a), (b) or (c) above; or

(e) it is taken (under section 459F of the Corporations Act) to have failed tocomply with a statutory demand; or

(f) it is the subject of an event described in section 459C(2)(b) or section585 of the Corporations Act; or

(g) it is otherwise unable to pay its debts when they fall due; or

(h) in the case of a natural person, the person dies, ceases to be of full legalcapacity or otherwise becomes incapable of managing his or her ownaffairs for any reason; or

(i) something having a substantially similar effect to any of paragraphs (a)to (h) above (both inclusive) happens in connection with that personunder the law of any jurisdiction.

Land means the land on which the Building is located.

Lending Body means the person or persons so described in the Details.

Local Government Act means the Local Government Act 1989 (Vic).

Material Adverse Effect means a material adverse effect on:

(a) the value of the Building or the Land; or

(b) a partys ability (including its administrative ability) to comply with itsobligations under this agreement; or

(c) the rights of a party under this agreement; or

(d) the business or financial condition of a party.

MCC means the person so described in the Details.

New Tenant means each tenant or occupier (other than the Owner) of the Landwhich becomes a tenant or occupier (other than the Owner) after theCommencement Date.

Outstanding Funding means, at a particular date, the Actual Funding Amountless the aggregate of all amounts paid by MCC to the Lending Body under thisagreement prior to that date excluding amounts with respect to Penalty Interestpaid by MCC to the Lending Body as contemplated by clause 3.3(h).

Owner means the person or persons so described in the Details.


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Payment Date means each date which is both a Charge Payment Date and aFunding Payment Date.

Penalty Interest has the meaning it has in clause 3.3(f).

Permitted Assignee means:

(a) an ADI;

(b) a Foreign ADI;

(c) a securitisation or funding vehicle managed by an ADI or a Foreign ADI,provided that, where an ADI or Foreign ADI shall cease to be the lenderof record, MCC has consented to the new lender of record, such consentnot to be unreasonably withheld or delayed; or

(d) any AFSL Holder, not being a person which is within any of paragraphs(a), (b) or (c) of this definition, where MCC has consented to that AFSLHolder, such consent not to be unreasonably withheld or delayed.

Prepayment means each payment from the Owner to MCC by way ofprepayment of all or part of the Total Charge Amount in accordance withclause 4.5(a).

Prepayment Date means each date on which MCC receives a Prepayment fromthe Owner.

Proceeds means any amount received or recovered by MCC as a result of theexercise of its powers of enforcement with respect to the Charge Obligations,including the proceeds of a sale of the Land, net of:

(a) any costs or expenses of MCC incurred in connection with suchenforcement;

(b) any amounts due and payable by the Owner to MCC in relation to theLand under Part 8 of the Local Government Act which are unpaid as atthe date the amount is received or recovered; and

(c) any Administrative Costs which are part of any Charge Payment due andpayable but unpaid as at the date the amount is received or recovered.

Proceeds Date means each date on which MCC receives or recovers anyProceeds.

Project means the environmental upgrade of the Building (including certainworks in relation to the Building) by the Owner, as set out in annexure 3.

Project Budget means the project budget, as set out in annexure 4.

Project Costs means the costs of implementing the Project, as set out in theProject Budget.

Related Body Corporate has the meaning it has in the Corporations Act.

Related Party has the meaning it has in the Corporations Act.


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Subsidiary has the meaning it has in the Corporations Act.

Tax includes a tax, levy, duty or charge (and associated penalty or interest)imposed by a Government Authority. It also includes stamp duty and other taxesof a similar nature, and income, withholding and transaction taxes and duties.

Tenant means each Existing Tenant and each New Tenant.

Termination Date means the date of termination of this agreement ascontemplated in clause 3.6(a)(iii).

Total Administrative Costs means the total amount of Administrative Costspayable by the Owner to MCC during the Charge Period, as set out in the ChargePayment Schedule.

Total Charge Amount means the total amount payable by the Owner under theCharge Obligations, as set out in the Charge Payment Schedule.

Total Outstanding Administrative Costs means, as at a particular date, the

Total Administrative Costs less the total amount of Administrative Costs thathave already been paid as at that date.

Total Outstanding Charge Amount means, as at a particular date, the TotalCharge Amount less the total amount of the Charge Payments that have alreadybeen paid as at that date.

Transaction Documents means:

(a) this agreement; and

(b) any document which the parties acknowledge in writing to be a

Transaction Document; and

(c) any other document connected with any of them.

1.2 References to certain general terms

In this agreement, unless the context requires otherwise:

(a) the singular includes the plural and vice versa; and

(b) words denoting any gender include all genders; and

(c) where a word or phrase is defined, its other grammatical forms have acorresponding meaning; and

(d) a reference to a party, clause, annexure or other like term is a referenceto a party, clause, annexure or other like term to or of this agreement;and

(e) a reference to this agreement includes any annexures; and

(f) headings are for convenience and do not affect interpretation; and

(g) the background or recitals to this agreement are adopted as and form part

of this agreement; and


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(h) a reference to any deed or agreement includes a reference to that deed oragreement as amended, novated, supplemented, varied or replaced fromtime to time; and

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

(j) a reference to a party includes its executors, administrators, successors,substitutes (including persons taking by novation) and permitted assigns;and

(k) a reference to writing includes any method of representing words, figuresor symbols in a permanent and visible form; and

(l) words and expressions denoting natural persons include bodiescorporate, partnerships, associations, firms, governments andgovernmental authorities and agencies and vice versa; and

(m) the word law includes common law, principles of equity and

legislation;

(n) a reference to any legislation or to any provision of any legislationincludes:

(i) any modification or re-enactment of the legislation; and

(ii) any legislative provision substituted for, and all legislation,statutory instruments and regulations issued under, thelegislation or provision; and

(iii) where relevant, corresponding legislation in any Australian State

or Territory; and

(o) no rule of construction applies to the disadvantage of a party becausethat party was responsible for the preparation of this agreement or anypart of it; and

(p) the words including, for example, such as or other similarexpressions (in any form) are not words of limitation; and

(q) if the day on or by which any act, matter or thing is to be done is a dayother than a Business Day, the act, matter or thing will be done on thenext Business Day.

1.3 MCCs rights and remedies unfettered

(a) The rights, powers and remedies of MCC under this agreement are inaddition to other rights, powers and remedies provided to MCC by lawindependently of this agreement.

(b) Nothing in this agreement limits or prevents MCC from exercising anyrights, powers or remedies provided to MCC by law independently ofthis agreement, or otherwise obliges MCC to exercise its rights, powersor remedies in a manner which is inconsistent with its functions orpowers.


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[Limitation of liability provisions to be included for any party which enters into thisagreement in its capacity as a trustee of a trust or a responsible entity of a managed

investment scheme.]

2 Consideration

(a) Each party acknowledges entering into this agreement and grantingrights and incurring obligations under this agreement for valuableconsideration.

(b) Without limitation to the provision of valuable consideration for thisagreement:

(i) the Owner agrees to assume the Charge Obligations and its otherobligations under this agreement in consideration of (amongstother matters) MCC agreeing, on the terms set out in thisagreement, to pay a portion of the Charge Payments received byMCC in an amount equal to the Actual Funding Amount to the

Lending Body; and

(ii) the Lending Body agrees to comply with clause 9.1 andannexure 8 in consideration of (amongst other matters) MCCentering into this agreement.

3 Environmental Upgrade Charge

3.1 Declaration of Environmental Upgrade Charge

(a) On the date of this agreement, MCC must declare that the Environmental

Upgrade Charge applies to the Land. For the avoidance of doubt:

(i) MCC may declare the Environmental Upgrade Charge only onceduring the Charge Period; and

(ii) MCC may declare that more than one environmental upgradecharge under section 27O of the City of Melbourne Act appliesto the Land subject to the execution of a separate environmentalupgrade agreement (as that term is defined in the City ofMelbourne Act) in relation to each such environmental upgradecharge.

(b) On one or more occasions during the Charge Period, MCC may levypayment of the Environmental Upgrade Charge by sending a notice tothe Owner in accordance with sections 27O(2) and 27O(3) of the City ofMelbourne Act.

(c) Notwithstanding any other provision of this agreement, the parties agreethat this agreement (other than clause 3.1(a)) will be of no force oreffect, and the parties will not be bound by this agreement, until theCommencement Date occurs.

3.2 Charge Obligations

The following provisions apply in relation to the Charge Obligations:


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(a) the Charge Obligations shall commence on the Commencement Date;and

(b) the Charge Obligations shall expire on the Charge Expiry Date; and

(c) the Total Charge Amount shall be equal to:

(i) the Actual Funding Amount; plus

(ii) the Total Administrative Costs; and

(d) the number of Charge Payment Dates shall be equal to the number ofFunding Payment Dates; and

(e) each Charge Payment Date shall fall on a Funding Payment Date.

3.3 Owner to make Charge Payments

(a) The Owner shall make Charge Payments to MCC on the Payment Dates

in accordance with the Charge Payment Schedule.

General payment provisions

(b) Each Charge Payment shall be equal to:

(i) the Actual Funding Amount; plus

(ii) the Administrative Costs,

payable on the Payment Date on which that Charge Payment is to bemade.

(c) Each Charge Payment shall be paid or caused to be paid by the Owner toMCC by direct debit or as otherwise notified by MCC to the Owner.

(d) Subject to clause 3.3(e), the proceeds of each Charge Payment must bepaid by MCC to the Lending Body in accordance with clause 4.3.

(e) The amount of each Charge Payment payable to the Lending Body inaccordance with clause 3.3(d) does not include the Administrative Costsin relation to the Payment Date on which that Charge Payment is to bemade.

Penalty Interest provisions

(f) The Owner shall pay penalty interest on any amount of a ChargePayment:

(i) which the Owner is liable to pay; and

(ii) which has not been paid by the Owner by the Charge PaymentDate,

calculated at the rate for the time being fixed under section 2 of thePenalty Interest Rates Act 1983 (Vic) (Penalty Interest).


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(g) The Penalty Interest is to be calculated, becomes payable by the Ownerand is to be recovered by MCC in accordance with sections 172(2),172(2A) and 172(4) of the Local Government Act.

(h) In addition to paying the amounts referred to in clause 3.3(d), MCC willpay to the Lending Body by way of electronic transfer all PenaltyInterest received by MCC from the Owner or otherwise recovered by

MCC, whether as a result of the exercise of its powers of enforcement orotherwise, less an amount equal to that Penalty Interest calculated at therate of 0.5% per annum paid with respect to the unpaid amount underclause 3.3(f), which MCC may retain as an administrative cost ofimposing and collecting the Penalty Interest. Payment must be made byMCC by way of electronic transfer within 5 Business Days after MCChas received cleared funds for the Penalty Interest.

(i) MCC is not liable to the Lending Body if MCC fails to receive allPenalty Interest from the Owner. Accordingly, any such failure does notmake MCC liable to pay the Lending Body any amount under clause3.3(h) as if MCC had received that amount from the Owner.

3.4 Administrative Costs

MCC may, as contemplated by clause 3.3(e), retain an amount from each ChargePayment equal to the Administrative Costs in relation to the Charge PaymentDate on which that Charge Payment is made.

3.5 MCCs priority in relation to Charge Obligations

The rights of MCC in relation to the Charge Obligations will rank:

(a) as a first priority claim in relation to the Land in accordance withsections 156(6), 180 and 181 of the Local Government Act and section27O(6) of the City of Melbourne Act; and

(b) after all other obligations of the Owner to MCC in relation to the Landunder Part 8 of the Local Government Act.

3.6 Amendments to Charge Payment Schedule and Funding PaymentSchedule

(a) The Charge Payment Schedule must be amended in accordance withclause 3.6(b) if any of the following events occurs:

(i) a Prepayment from the Owner to MCC (unless the effect of thedistribution of the relevant Prepayment in accordance withclause 4.5(b) is to reduce the amount of the Outstanding Fundingto zero); or

(ii) the receipt or recovery of Proceeds by MCC (unless the effect ofthe distribution of the Proceeds in accordance with clause 4.4(a)is to reduce the amount of the Outstanding Funding to zero); or

(iii) the termination of this agreement before financialaccommodation equal to the Funding Limit is provided by the

Lending Body to the Owner.

(b) MCC shall:


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(i) by agreement with the Lending Body, amend the ChargePayment Schedule, in accordance with the methodology agreedbetween MCC and the Lending Body after the date of thisagreement, to the extent necessary to ensure that the totalamount of the remaining Charge Payments is equal to the sum ofthe Outstanding Funding and the Total OutstandingAdministrative Costs:

(A) as at the Prepayment Date if the event described inclause 3.6(a)(i) occurs; or

(B) as at the Proceeds Date if the event described in clause3.6(a)(ii) occurs; or

(C) as at the Termination Date if the event described inclause 3.6(a)(iii) occurs; and

(ii) provide the Owner and the Lending Body with a copy of theamended Charge Payment Schedule,

within 5 Business Days after the relevant Prepayment Date, ProceedsDate or Termination Date (as applicable) and the amended ChargePayment Schedule will, on and from that date, be the Charge PaymentSchedule for the purposes of this agreement.

(c) Within 5 Business Days of receipt of an amended Charge PaymentSchedule under clause 3.6(b), the Lending Body will provide to MCCand the Owner the amended Funding Payment Schedule (which mustreflect the amended Charge Payment Schedule) which will, on and fromthat date, be the Funding Payment Schedule for the purposes of thisagreement.

(d) The Owner must, within 5 Business Days after receipt of an amendedCharge Payment Schedule as contemplated in clause 3.6(b), provide eachTenant that would be liable to pay to the Owner all or part of theamounts in respect of the remaining Charge Payments with an updatedversion of the statement described in clause 6.1(b).

3.7 Refund of overpayments

If, as a consequence of any of the events contemplated in clauses 3.6(a)(i), (ii) or(iii), the Owner has, as at the time the adjustment to the Charge Payment

Schedule and the Funding Payment Schedule occurs under clause 3.6 as a resultof the relevant event, made Charge Payments in excess of the Charge Paymentsthat the Owner is required to pay under this agreement as at that date, then:

(a) to the extent that MCC has paid that excess amount to the Lending Bodyand the Lending Body agrees that such payment of such an excessamount to the Lending Body has occurred, the Lending Body must remitthat excess amount to MCC; and

(b) to the extent that MCC:

(i) has not paid that excess amount to the Lending Body; or


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(ii) has paid that excess amount to the Lending Body, and has hadthat excess amount remitted to it by the Lending Body underparagraph (a),

MCC must refund the excess amount to the Owner,

in each case within a reasonable time after MCC becomes aware or the Lending

Body agrees (as relevant) that such overpayment has occurred.

For the avoidance of doubt, nothing in this agreement requires MCC to refundany excess amount to the Owner to the extent that the MCC has paid that excessamount to the Lending Body and the Lending Body has not remitted that excessamount to MCC under clause 3.7(a).

3.8 MCC to give notice to the Lending Body

MCC shall as soon as is reasonably practicable give notice in writing to theLending Body if:

(a) MCC becomes aware of:

(i) a Default; or

(ii) any other circumstance that would entitle MCC to take recoveryor enforcement action in respect of the Charge Obligations; or

(b) MCC forms the intention to exercise any power of recovery orenforcement in relation to the Charge Obligations; or

(c) MCC makes any decision as to the matters contemplated in clause 3.10.

3.9 Continuation of Charge Obligations

The Owner must continue to fulfil the Charge Obligations and make ChargePayments to MCC in accordance with the Charge Payment Schedule even if theLand ceases to be rateable by MCC, in accordance with section 27O(10) of theCity of Melbourne Act.

3.10 MCCs discretion as to rights in relation to Charge Obligations

(a) MCC agrees that:

(i) its procedure concerning the waiver, deferral, recovery and

enforcement of the Environmental Upgrade Charge and anyother charge declared under section 27O of the City ofMelbourne Act (by any means) is set out in annexure 5; and

(ii) it will only vary the Enforcement Procedure as it relates to theEnvironmental Upgrade Charge if:

(A) the Enforcement Procedure is or becomes inconsistentwith applicable laws; or

(B) it obtains the prior written consent of the Lending Body;and


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(iii) it will notify the Lending Body of any variation of theEnforcement Procedure under clause 3.10(a)(ii); and

(iv) it will only waive or defer the imposition of the EnvironmentalUpgrade Charge if the waiver or deferral is in accordance withboth:

(A) the process contained in the Enforcement Procedure (asmay be varied from time to time under clause3.10(a)(ii)); and

(B) part 8 of the Local Government Act, as it applies toMCC and the Environmental Upgrade Charge; and

(v) it will notify the Lending Body of any waiver or deferral of theEnvironmental Upgrade Charge it proposes to grant ascontemplated under clause 3.10(a)(iv).

(b) If MCC waives or defers the imposition of the Environmental Upgrade

Charge in accordance with clause 3.10(a)(iv), MCC is not liable to theLending Body for the Environmental Upgrade Charge which has beenwaived or deferred. Accordingly, any such waiver or deferral does notmake MCC liable to pay the Lending Body any Charge Obligationswhich are the subject of the deferral or waiver as if the Owner had paidthose amounts to MCC.

(c) MCC must take all necessary action to recover or enforce its rights forpayment of the Charge Obligations in accordance with the EnforcementProcedure and, for the avoidance of doubt, in a manner and time framethat is consistent with the process that it would adopt to recover orenforce its rights for payment of other rates and taxes owing under Part 8of the Local Government Act.

(d) If MCC:

(i) has taken all necessary action to recover or enforce its rights forpayment of the Charge Obligations in accordance with theEnforcement Procedure; but

(ii) has not received payment of the Charge Obligations,

then MCC is not liable for:

(iii) any failure to receive payment of the Charge Obligations; or

(iv) paying the Lending Body any amount under clause 3.10(b) as ifMCC had received that amount from the Owner.

(e) Nothing in this clause 3.10 or any other provision of this agreement willprevent the Lending Body from taking any action to enforce any of itsrights against MCC including seeking declaratory orders, orders from acourt for specific performance or the issue of an injunction.

3.11 When Charge Payment Schedule ceases to apply

The Charge Payment Schedule ceases to apply when the Total Charge Amounthas been fully discharged by the Owner.


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3.12 Invoices

In levying payment of the Environmental Upgrade Charge in accordance withclause 3.1(b), MCC shall invoice the Owner for any Environmental UpgradeCharge separately from any other rates or charges in relation to the Land.

3.13 Application of Local Government Act

Part 8 of the Local Government Act (other than sections 154, 156, 172, 175 to178 (both inclusive), 180 and 181) does not apply in relation to the levying of,payment of and review of the Environmental Upgrade Charge.

4 Collection by MCC

4.1 Collection role

The Lending Body acknowledges the role of MCC in the collection arrangementsset out in this clause 4 and sections 27O and 27P of the City of Melbourne Act.

4.2 Subcontracting

(a) MCC may subcontract with any person for the performance of any of itsobligations under this clause 4.

(b) If MCC subcontracts with any person for the performance of any of itsobligations under this clause 4:

(i) MCC will notify the Lending Body of the subcontractingarrangement; and

(ii) MCC will remain liable for all of its obligations under thisagreement notwithstanding the entering into of thesubcontracting arrangement.

4.3 Charge Payments

(a) MCC must, in accordance with section 27P(2) of the City of MelbourneAct, distribute any Charge Payment (other than the AdministrativeCosts) it has received to the Lending Body.

(b) MCC must distribute any Charge Payment (other than the AdministrativeCosts) to the Lending Body by way of electronic transfer within 5

Business Days after MCC has received cleared funds from the Owner forthat Charge Payment. MCC is not liable to the Lending Body or anyother person under this clause 4.3 for any amounts other than thosereceived by MCC as cleared funds for Charge Payments.

4.4 Proceeds

(a) Subject to clause 4.4(b), MCC must, within 5 Business Days after it hasreceived cleared funds for any Proceeds, distribute those Proceeds to theLending Body by way of electronic transfer, in an amount equal to theArrears as at the date of distribution.

(b) If the amounts that MCC has received or recovered as Proceeds are lessthan the Arrears as at the Proceeds Date, those amounts are to be applied


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as specified in clause 4.4(a). MCC is not liable to the Lending Body orany other person under this clause 4.4 for any amounts other than thosereceived or recovered by MCC as cleared funds for Proceeds.

4.5 Prepayment of Total Charge Amount by Owner

(a) Notwithstanding the other provisions of this agreement (but subject to

clause 9.1 and annexure 8), the Owner may at any time during theCharge Period make Prepayments to MCC.

(b) MCC must, within 5 Business Days after it has received cleared fundsfrom the Owner for any Prepayment, distribute that Prepayment (otherthan Administrative Costs included in that Prepayment) to the LendingBody by way of electronic transfer. MCC is not liable to the LendingBody or any other person under this clause 4.5 for any amounts otherthan those received or recovered by MCC as cleared funds forPrepayments.

(c) The Owner must provide written confirmation to MCC if a payment is aPrepayment at the time the payment is made.

4.6 Satisfaction of Actual Funding Amount

Payment by MCC in accordance with clauses 4.3, 4.4 or 4.5 constitutessatisfaction of the Actual Funding Amount by the Owner to the extent of thatpayment.

4.7 Administrative procedures

MCC agrees to create, implement and maintain administrative and operationalprocedures and records which are sufficient to allow it to ensure that the TotalOutstanding Charge Amount is:

(a) readily identifiable; and

(b) capable of being collected and enforced.

4.8 No liability

Notwithstanding clauses 4.2 to 4.7 (both inclusive) but without limiting in anyway clauses 3.3(h) and 3.10:

(a) MCC is not liable to the Lending Body for any amounts not recovered bythe Lending Body in relation to any Transaction Document; and

(b) in accordance with section 27Q(1) of the City of Melbourne Act, MCCsobligations under this clause 4 in respect of each Charge Payment, anyPrepayment and any Proceeds do not come into effect until the Ownerhas paid the Charge Payment or the Prepayment to MCC or MCC hasreceived or recovered Proceeds.


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5 Payment by MCC

5.1 Payment role

The Owner acknowledges the role of MCC in the payment arrangements set outin this clause 5 and sections 27O and 27P of the City of Melbourne Act.

5.2 No subcontracting

(a) MCC must not, without the prior written consent of the Lending Body(such consent not to be unreasonably withheld), subcontract with anyperson for the performance of any of its obligations under this clause 5.

(b) If MCC subcontracts with any person for the performance of any of itsobligations under this clause 5, MCC will remain liable for all of itsobligations under this agreement notwithstanding the entering into of thesubcontracting arrangement.

5.3 Charge Payments(a) On each Payment Date, the Owner must pay or cause to be paid to MCC

the Charge Payment in relation to that Payment Date, in accordance withthe Charge Payment Schedule and in such manner as is from time to timespecified by MCC to the Owner.

(b) MCC must pay the Lending Body the amount received from the Owneras a Charge Payment (other than relevant Administrative Costs) inaccordance with clause 4.3(b).

5.4 Prepayments

MCC must pay the Lending Body the amount received from the Owner as aPrepayment (other than Administrative Costs included in the Prepayment) inaccordance with clause 4.5(b).

5.5 No liability

Notwithstanding clauses 5.1 to 5.4 (both inclusive) but without limiting in anyway clauses 3.3(h) and 3.10:

(a) MCC is not liable to the Owner for any amounts not recovered by theLending Body in relation to any Transaction Document; and

(b) in accordance with section 27Q(1) of the City of Melbourne Act, MCCsobligations under this clause 5 in respect of each Charge Payment andany Prepayment do not come into effect until the Owner has paid theCharge Payment or the Prepayment to MCC or MCC has received orrecovered Proceeds.

6 Confirmations

6.1 Confirmations from Owner

The Owner confirms that as at the date of this agreement:

(a) it has advised, in writing, each Existing Secured Financier (if any):


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(i) that it intends to enter into this agreement; and

(ii) of the details of the Environmental Upgrade Charge that isexpected to be declared by MCC in respect of the Land underthis agreement,

in accordance with its obligations under section 27N(2) of the City of

Melbourne Act; and

(b) each Tenant that would be liable to pay for all or part of theEnvironmental Upgrade Charge levied under this agreement, has beenprovided with a statement specifying:

(i) the total amount of the payments that the Tenant would berequired to make; and

(ii) a repayment schedule that details when the Tenants liabilitywould become payable and, if the Tenants liability can be paidby instalment, the amount and timing of each instalment; and

(iii) that the repayment schedule may be amended as contemplated inclause 3.6; and

(iv) that the Tenant may consent or object, in writing, to theimposition of the Environmental Upgrade Charge in the mannerset out in the statement; and

(c) each Tenant that has received a statement as contemplated in clause6.1(b) has consented to the imposition of the Environmental UpgradeCharge in the manner set out in the statement.

6.2 Confirmation from Lending Body

(a) The Owner represents and warrants to the Lending Body that it has, priorto the date of this agreement, notified the Lending Body of the aggregateof all amounts that, as at the date of this agreement, are secured by anymortgages in relation to the Land held by Existing Secured Financiers.

(b) Based on the information that the Owner has provided to the LendingBody, as referred to in clause 6.2(a), the Lending Body confirms inaccordance with its obligations under section 27N(3) of the City ofMelbourne Act that, as at the date of this agreement, the Total ChargeAmount, when added to any taxes, rates, charges or mortgages owing toExisting Secured Financiersin relation to the Land, does not exceed theCapital Improved Value of the Land prior to the commencement of theProject.

6.3 Confirmation from Owner and Lending Body

Each of the Owner and the Lending Body confirms that:

(a) a default by any party under this agreement will not in itself constitute adefault under any Transaction Document (other than this agreement);and

(b) a default by any person under any Transaction Document (other than thisagreement) will not in itself constitute a default under this agreement.


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7 Reinstatement of rights

Under law relating to a person who is Insolvent, a person may claim that atransaction (including a payment) in relation to this agreement is void orvoidable. If a claim is made and upheld, conceded or compromised, then:

(a) the Lending Body is immediately entitled as against the Owner to the

rights in respect of the Charge Payments and the Prepayments (asapplicable) to which it was entitled immediately before the transaction;and

(b) the Charge Payment Schedule as at the Charge Payment Date or thePrepayment Date (as applicable) which is deemed to be void or voidableis taken to be reinstated without the requirement that any further act,matter or thing take place.

8 Representations and warranties

8.1 General representations and warranties

Each of the Owner and the Lending Body represents and warrants that:

(a) (incorporation and existence): it has been incorporated in accordancewith the laws of its place of incorporation, is validly existing under thoselaws and has power and authority to carry on its business as it is nowbeing conducted; and

(b) (power): it has power to enter into the Transaction Documents to whichit is a party and comply with its obligations under them; and

(c) (no contravention or exceeding power): the Transaction Documents towhich it is a party and the transactions under them which involve it donot contravene its constituent documents (if any) or any law orobligation by which it is bound or to which any of its assets are subject,or cause a limitation on its powers or the powers of its directors to beexceeded; and

(d) (authorisations): it has in full force and effect the authorisationsnecessary for it to enter into the Transaction Documents to which it is aparty, to comply with its obligations and exercise its rights under themand to allow them to be enforced; and

(e) (validity of obligations): its obligations under the TransactionDocuments to which it is a party are valid and binding and areenforceable against it in accordance with their terms, subject to anyequitable principles and laws generally affecting creditors rights(including laws relating to bankruptcy, insolvency, liquidation,receivership, administration, reorganisation, reconstruction, fraudulenttransfer or moratoria); and

(f) (arms length terms): it enters into the Transaction Documents to whichit is a party in good faith and on terms that are reasonable in thecircumstances, reflect market costs for the financial accommodation to

be provided by the Lending Body to the Owner and are at arms length toeach other party to any Transaction Document.


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8.2 Further representations and warranties from Owner

The Owner represents and warrants that:

(a) (benefit): it benefits by entering into the Transaction Documents towhich it is a party; and

(b) (solvency): there are no reasonable grounds to suspect that it or any ofits Subsidiaries is unable to pay its debts as and when they become dueand payable; and

(c) (not a trustee): unless stated in the Details, it does not enter into anyTransaction Document to which it is a party as trustee; and

(d) (no immunity): neither it nor any of its Subsidiaries has immunity fromthe jurisdiction of a court or from legal process; and

(e) (non-residential purposes): the Building is an existing building in theCity of Melbourne that is used entirely or predominantly for non-

residential purposes; and

(f) (efficiency or sustainability): the Project will improve the energy, wateror environmental efficiency or sustainability of the Building; and

(g) (Existing Tenants):

(i) each Existing Tenant who is or would be liable to pay for all orpart of the Environmental Upgrade Charge levied under thisagreement consents to the application of the EnvironmentalUpgrade Charge and agrees to pay the Owner an agreed amountof the Environmental Upgrade Charge); and

(ii) a copy of each consent and agreement of each Existing Tenantreferred to in clause 8.2(g)(i) is contained in annexure 7; and

(iii) other than each Existing Tenant whose consent and agreement iscontained in annexure 7, no other Existing Tenant is or would beliable to pay for all or part of the Environmental UpgradeCharge levied under this agreement.

8.3 Further representations and warranties from Lending Body

The Lending Body represents and warrants that:

(a) (credit assessment):

(i) it has prepared, or procured the preparation of, a creditassessment of the Owner for the purposes of the credit approvalprocesses of the Lending Body; and

(ii) the credit assessment referred to in clause 8.3(a)(i) demonstratesthat the Owner will be able to comply with its obligations underthis agreement; and

(b) (Funding Limit): it has provided or will provide financial

accommodation equal to the Funding Limit on the terms set out inannexure 8.


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[If the Owner or the Lending Body is a trust, a managed investment scheme, apartnership, an individual or an owners corporation (as applicable), the

representations and warranties in this clause 8 will need to be adapted in

accordance with the applicable provisions in annexure 6.]

9 Undertakings9.1 Provision of funding

Each of the Lending Body and the Owner agree to comply with the terms andconditions of annexure 8. For the avoidance of doubt, MCC has no rights orobligations under annexure 8 and is not obliged to comply with annexure 8.

9.2 General undertaking

(a) (Variation of Transaction Documents): Each of MCC, the Owner andthe Lending Body undertakes that it will not, and will not agree to, vary,replace, amend or terminate or consent to the variation, replacement,

amendment or termination of any Transaction Document to which it is aparty or any provision of any Transaction Document to which it is aparty, without the prior written consent of each other party to thisagreement where such variation, replacement, amendment or terminationwill or may have a Material Adverse Effect.

(b) (Related Party transactions): If a party to a Transaction Document is aRelated Party of any other party to a Transaction Document, each of theOwner and the Lending Body (as applicable) undertakes to disclose toMCC the identity and role of the Related Parties.

9.3 Further undertakings from OwnerThe Owner undertakes:

(a) (New Tenants): to notify each prospective New Tenant as soon as isreasonably practicable and in any case prior to the commencement oftheir tenancy or occupation of the Land:

(i) of the application of the Environmental Upgrade Charge; and

(ii) that the New Tenant is liable to pay the Owner a proportionateamount of the Environmental Upgrade Charge (if applicable).;and

(b) (Project Costs): it will use the financial accommodation provided to iton the terms set out in annexure 8 only for the purpose of paying theProject Costs; and

(c) (no dealings): without prior written notice from it to the Lending Bodyand MCC, it will not and will not agree to, either in a single transactionor a series of transactions, sell, transfer, lease or otherwise dispose of theLand or any part of the Land, or create or permit to exist anyEncumbrance over the Land or any part of the Land, other than leases ofall or part of the Land in the ordinary course of its business.


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9.4 Further undertaking from Lending Body

(a) The Lending Body undertakes that it will not, and will not agree to, takeany action to enforce any of its rights against the Owner under clause 9.1and annexure 8, without the prior written consent of MCC (such consentnot to be withheld or delayed) except where, in the reasonable opinion ofthe Lending Body, a change in law has or is likely to have an Adverse

Effect, in which case no consent of MCC is required and the LendingBody may take any such enforcement action it, in its discretion,determines.

(b) An Adverse Effect will be taken to have occurred for the purposes ofclause 9.4(a) if a change in law:

(i) adversely affects the ability of the Lending Body to receivepayment of the Outstanding Funding on the terms contemplatedby this agreement; or

(ii) results in a variation of the Enforcement Procedure as

contemplated by clause 3.10(a)(ii)(A) which disadvantages theLending Body; or

(iii) adversely affects, in any way, the first ranking priority claim thatMCC has in relation to the Land in accordance with sections156(6), 180 and 181 of the Local Government Act and section27O(6) of the City of Melbourne Act for the Charge Obligations.

10 Dealing with interests

No party may assign or otherwise deal with its rights or obligations under any

Transaction Document or allow any interest in them to arise or be varied, in eachcase, without:

(a) the prior written consent of each other party to this agreement (suchconsent not to be unreasonably withheld or delayed), provided thatwhere the Lending Body assigns or otherwise deals with its rights orobligations to a Permitted Assignee no consent of any other party will berequired; and

(b) (whether or not consent is required under paragraph (a)) in the case of atransfer of all of the rights and obligations of that party under thisagreement, the transferee first entering into and delivering to each other

party to this agreement a deed poll in the form of annexure 9 underwhich the transferee agrees to be bound, with effect on and from the dateof the deed poll, by the terms of this agreement as if it was originallynamed as a party to this agreement instead of the applicable party. Onthe date on which that executed deed poll is delivered to each other partyto this agreement the relevant transferor is released from all of its futureobligations under this agreement (but for the avoidance of doubt is notreleased from any prior breach of this agreement).


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11 Costs and expenses

11.1 Owner to pay costs and expenses

(a) The Owner must immediately pay on demand all reasonable costs andexpenses of MCC and the Lending Body in connection with:

(i) the negotiation, preparation, execution, delivery, registration orcompletion of this agreement; and

(ii) any variation or discharge of this agreement; and

(iii) the giving by MCC or the Lending Body of a consent orapproval in connection with this agreement; and

(iv) obtaining advice from a professional person or consultant aboutany matter of concern to it in connection with this agreement,

including any legal costs and expenses (on a full indemnity basis) andany professional consultant's fees.

(b) The Owner must immediately pay on demand all costs and expenses ofMCC and the Lending Body in connection with the enforcement of, orthe preservation of any rights under, this agreement.

11.2 Owner to pay Taxes

The Owner must pay, or immediately on demand reimburse MCC and theLending Body for, all Taxes which may be payable or determined to be payableby the Owner, MCC or the Lending Body (as applicable) in connection with thisagreement or a payment, receipt or other transaction contemplated by this

agreement.

12 Notices and other communications

12.1 Form - all communications

Unless expressly stated otherwise in this agreement, all notices, certificates,consents, approvals, waivers and other communications in connection with thisagreement must be in writing, signed by an Approved Signatory of the senderand marked for the attention of the person identified in the Details or, if therecipient has notified otherwise, then marked for attention in the way last

notified.

12.2 Form - communications sent by email

Communications sent by email need not be marked for attention in the way statedin clause 12.1. However, the email must state the first and last name of thesender.

Communications sent by email are taken to be signed by the named sender.

12.3 Delivery

Communications must be:


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(a) left at the address set out or referred to in the Details; or

(b) sent by prepaid ordinary post (airmail, if appropriate) to the address setout or referred to in the Details; or

(c) sent by fax to the fax number set out or referred to in the Details; or

(d) sent by email to the address set out or referred to in the Details.

However, if the intended recipient has notified a changed address or fax number,then communications must be to that address or number.

12.4 When effective

Communications take effect from the time they are received or taken to bereceived under clause 12.5 (whichever happens first) unless a later time isspecified.

12.5 When taken to be receivedCommunications are taken to be received:

(a) if sent by post, three days after posting (or seven days after posting ifsent from one country to another); or

(b) if sent by fax, at the time shown in the transmission report as the timethat the whole fax was sent; or

(c) if sent by email:

(i) when the sender receives an automated message confirming

delivery; or

(ii) four hours after the time sent (as recorded on the device fromwhich the sender sent the email) unless the sender receives anautomated message that the email has not been delivered,

whichever happens first.

12.6 Receipt outside business hours

Despite clauses 12.4 and 12.5, if communications are received or taken to bereceived under clause 12.5 after 5.00 pm in the place of receipt or on a non-

Business Day, they are taken to be received at 9.00 am on the next Business Dayand take effect from that time unless a later time is specified.

12.7 Communications by email preferred

Notwithstanding clause 12.1 to 12.6 (both inclusive), each party acknowledgesthat the preferred means of communication is by email.

13 GST

13.1 Definitions and interpretation(a) In this clause 13, unless the context requires otherwise:


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GST includes:

(i) any additional tax, penalty, fine, interest or other charge relatingto GST; and

(ii) an amount an entity is notionally liable to pay as GST or anamount which is treated as GST under the GST Law; and

GST Law means the same as "GST Law" means in the A New TaxSystem (Goods and Services Tax) Act 1999 (Cth).

(b) Terms defined in the GST Law have the same meaning in this clause 13unless the context otherwise requires.

13.2 GST pass on

If GST is or will be payable on a supply made under or in connection with thisagreement, to the extent that the consideration otherwise provided for that supplyunder this agreement is not stated to include an amount in respect of GST on the

supply:

(a) the consideration otherwise provided for that supply under thisagreement is increased by the amount of that GST; and

(b) the recipient must make payment of the increase as and when theconsideration otherwise provided for, or relevant part of it, must be paidor provided or, if the consideration has already been paid or provided,within 7 days of receiving a written demand from the supplier.

13.3 Later adjustment to price or GST

If there is an adjustment event in relation to a supply which results in the amountof GST on a supply being different from the amount in respect of GST alreadyrecovered by the supplier, as appropriate, the supplier within 14 days ofbecoming aware of the adjustment event:

(a) may recover from the recipient the amount by which the amount of GSTon the supply exceeds the amount already recovered by giving 7 dayswritten notice; or

(b) must refund to the recipient the amount by which the amount alreadyrecovered exceeds the amount of GST on the supply to the extent that thesupplier is entitled to a refund or credit from the Commissioner ofTaxation; and

(c) must issue an adjustment note or tax invoice reflecting the adjustmentevent in relation to the supply to the recipient within 28 days of theadjustment event.

13.4 Tax invoices

The right of the supplier to recover any amount in respect of GST under thisagreement on a supply is subject to the issuing of the relevant tax invoice oradjustment note to the recipient within 4 years of the supplier's liability to thatGST arising.


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13.5 Reimbursements/Indemnities

Costs actually or estimated to be incurred or revenue actually or estimated to beearned or lost by a party that is required to be reimbursed or indemnified byanother party or used as the basis for calculation of consideration for a supplyunder this agreement must exclude the amount of GST referrable to the cost tothe extent to which an entitlement arises or would arise to claim an input tax

credit and in relation to revenue must exclude any amount in respect of GSTreferable to the revenue.

14 General

14.1 Partial exercising of rights

If a party does not exercise a right or remedy under this agreement fully or at agiven time, the party may still exercise it later.

14.2 Remedies cumulative

The rights and remedies of the parties under this agreement are in addition toother rights and remedies given by law independently of this agreement.

14.3 Inconsistent law

To the extent permitted by law, this agreement prevails to the extent it isinconsistent with any law.

14.4 Variation

A provision of this agreement must not be varied except in writing signed by

each party.

14.5 Waiver

Without limitation to clause 3.10, a right created under this agreement must notbe waived, or a consent under this agreement must not be given, except in writingsigned by the party or parties to be bound.

14.6 Confidentiality

(a) Each party agrees not to disclose information provided by any otherparty that is not publicly available (including the existence of or contents

of this agreement) except:

(i) the identity of the parties to any person for the purposes ofpromoting or marketing the Project; or

(ii) to any person in connection with an exercise of rights or adealing with rights or obligations under any TransactionDocument and, in the case of the Lending Body, to any potentialsub-participant or other person with whom any other transactionmay be entered into by reference to the Transaction Documentsor the Owner; or

(iii) to officers, employees, legal and other advisers and auditors ofthe parties; or


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(iv) to any party or any related entity of any party, provided therecipient agrees to act consistently with this clause 14.6; or

(v) with the consent of the party who provided the information(such consent not to be unreasonably withheld or delayed); or

(vi) under section 229 of the Local Government Act in relation to

land information certificates; or

(vii) as required by any law, regulation, regulatory or statutory bodyor stock exchange; or

(viii) to rating agencies to the extent required by them.

Each party consents to disclosures made in accordance with thisclause 14.6(a).

(b) Notwithstanding clause 13.6(a), the Owner may disclose the existence orcontents of the Charge Obligations to a prospective purchaser or a

prospective tenant of the Land without the consent of MCC or theLending Body.

14.7 Further steps

Each party agrees, at its own expense, to do anything (such as obtaining consents,signing and producing documents and getting documents completed and signed)that another party may reasonably request to give effect to this agreement.

14.8 Entire agreement

This agreement constitutes the entire agreement between the parties in relation to

its subject matter. All prior discussions, undertakings, agreements,representations, warranties and indemnities in relation to that subject matter arereplaced by this agreement and have no further effect.

14.9 No merger

The provisions of this agreement will not merge on completion of any transactioncontemplated in this agreement and, to the extent any provision has not beenfulfilled, will remain in force.

14.10 Severability

Part or all of any provision of this agreement that is illegal or unenforceable willbe severed from this agreement and will not affect the continued operation of theremaining provisions of this agreement.

14.11 No revocation of power of attorney

Each person who executes this agreement on behalf of a party under a power ofattorney warrants that he or she has no notice of the revocation of that power orof any fact or circumstance that might affect his or her authority to execute thisagreement under that power.


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14.12 Counterparts

This agreement may consist of a number of copies, each signed by one or moreparties. If so, the signed copies are treated as making up the one document.

14.13 Governing law

This agreement is governed by the law in force in Victoria and each partysubmits to the non-exclusive jurisdiction of the courts of that place.

EXECUTED as an agreement


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30

Annexure 1 - Charge Payment Schedule

[To be inserted]


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31

Annexure 2 - Funding Payment Schedule

[To be inserted]


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32

Annexure 3 - Project (outline of works)

[To be inserted]


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33

Annexure 4 - Project Budget

[To be inserted]


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34

Annexure 5 - Enforcement Procedure

[To be inserted]


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35

Annexure 6 - Representations and warranties

[Applicable provisions for trusts]




(a) (incorporation and existence): it has been incorporated in accordancewith the laws of its place of incorporation, is validly existing under thoselaws and has power and authority to carry on its business as it is now

being conducted; and



(d) (authorisations): it has in full force and effect the authorisations(including any authorisations required under its constitution) necessaryfor it to enter into the Transaction Documents to which it is a party, tocomply with its obligations and exercise its rights under them and toallow them to be enforced; and


(f) (arms length terms): it enters into the Transaction Documents to whichit is a party in good faith and on terms that are reasonable in thecircumstances, reflect market costs for the financial accommodation tobe provided by the Lending Body to the Owner and are at arms length toeach other party to any Transaction Document.

1.2 Trust representations and warranties

The [Owner/Lending Body] represents and warrants that:

(a) (existence): the Trust has been duly established; and


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(b) (sole trustee): it is the only trustee of the Trust; and

(c) (appointment and no removal): it has been validly appointed as trusteeof the Trust and no action has been taken or proposed to remove it astrustee of the Trust; and

(d) (disclosure of terms): true copies of the Trust Deed (including any

amending documents) have been provided to the [Owner/Lending Body]and MCC and disclose all terms of the Trust; and

(e) (power): it has power under the terms of the Trust to enter into theTransaction Documents to which it is a party and comply with itsobligations under them; and

(f) (authorisations): it has in full force and effect the authorisations(including any authorisation required under the Trust Deed) necessaryfor it to enter into the Transaction Documents to which it is a party,perform obligations under them and allow them to be enforced; and

(g) (indemnity): it has a right to be fully indemnified out of the TrustProperty in respect of obligations incurred by it under the TransactionDocuments to which it is a party; and

(h) (adequacy of Trust Property): the Trust Property is sufficient to satisfythe right of indemnity referred to in clause 8.2(g) and all otherobligations in respect of which the [Owner/Lending Body] has a right tobe indemnified out of the Trust Property; and

(i) (no default): it is not, as at the date of this agreement, in default underthe Trust Deed and no action has been taken or proposed to terminate theTrust; and

(j) (priority): each of MCCs and the [Owners/Lending Bodys] rightsunder the Transaction Documents it enters into with the [Owner/LendingBody] rank in priority to the interests of the beneficiaries of the Trust;and

(k) (exercise of powers): it has not exercised its powers under the TrustDeed to release, abandon or restrict any power conferred on it by theTrust Deed; and

(l) (benefit): entry into the Transaction Documents to which it is a party is avalid exercise of its powers under the Trust Deed for the benefit ofbeneficiaries of the Trust.






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37

(c) (no immunity): neither it nor any of its Subsidiaries has immunity fromthe jurisdiction of a court or from legal process; and

(d) (non-residential purposes): the Building is an existing building in theCity of Melbourne that is used entirely or predominantly for non-residential purposes; and

(e) (efficiency or sustainability): the Project will improve the energy, wateror environmental efficiency or sustainability of the Building; and

(f) (Existing Tenants):

(i) each Existing Tenant who is or would be liable to pay for all orpart of the Environmental Upgrade Charge levied under thisagreement consents to the application of the EnvironmentalUpgrade Charge and agrees to pay the Owner an agreed amountof the Environmental Upgrade Charge; and

(ii) a copy of each consent and agreement of each Existing Tenant

referred to in clause 8.3(f)(i) is contained in annexure 7; and






(ii) the credit assessment referred to in clause 8.4(a)(i) demonstratesthat the Owner will be able to comply with its obligations underclause 9.1 and annexure 8; and

(b) (Funding Limit): it has provided or will provide financialaccommodation equal to the Funding Limit on the terms set out inannexure 8.

In this clause 8, these meanings apply unless the contrary intention appears:

Trust means [to be inserted].

Trust Deed means [to be inserted].

Trust Property means all the [Owners/Lending Bodys] rights, property andundertaking which are the subject of the Trust:

(a) of whatever kind and wherever situated; and

(b) whether present or future.


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[Applicable provisions for managed investment schemes]








(e) (validity of obligations): its obligations under the Transaction

Documents to which it is a party are valid and binding and areenforceable against it in accordance with their terms, subject to anyequitable principles and laws generally affecting creditors rights(including laws relating to bankruptcy, insolvency, liquidation,receivership, administration, reorganisation, reconstruction, fraudulenttransfer or moratoria); and

(f) (arms length terms): it enters into the Transaction Documents to whichit is a party in good faith and on terms that are reasonable in thecircumstances, reflect market costs for the financial accommodation tobe provided by the Lending Body to the Owner and are at arms length toeach other party to any Transaction Document.

2.2 Scheme representations and warranties


(a) (existence): the Scheme has been validly constituted as a ManagedInvestment Scheme; and

(b) (sole responsible entity): it is the only responsible entity of the Scheme;and

(c) (appointment and no removal): it has been validly appointed as the

responsible entity of the Scheme and no action has been taken orproposed to remove it as responsible entity of the Scheme; and


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(d) (disclosure of terms and compliance):

(i) true copies of the Scheme Constitution (including any amendingdocuments) have been provided to the [Owner/Lending Body]and MCC and disclose all terms of the Scheme; and

(ii) the Scheme Constitution complies with the Corporations Act;

and

(e) (power): it has power under the terms of the Scheme Constitution toenter into the Transaction Documents to which it is a party and complywith its obligations under them; and

(f) (authorisations): it has in full force and effect the authorisations(including any authorisation required under the Scheme Constitution)necessary for it to enter into the Transaction Documents to which it is aparty, perform obligations under them and allow them to be enforced;and

(g) (Compliance Plan):

(i) true copies of the Compliance Plan (including any amendingdocuments) have been provided to the [Owner/Lending Body]and MCC; and

(ii) the Compliance Plan complies with the Corporations Act; and

(h) (indemnity): it has a right to be fully indemnified out of the SchemeProperty in respect of obligations incurred by it under the TransactionDocuments to which it is a party; and

(i) (adequacy of Scheme Property): the Scheme Property is sufficient tosatisfy the right of indemnity referred to in clause 8.2(h) and all otherobligations in respect of which the [Owner/Lending Body] has a right tobe indemnified out of the Scheme Property; and

(j) (no default): it is not, as at the date of this agreement, in default underthe Scheme Constitution and no action has been taken or proposed toterminate the Scheme; and

(k) (priority): each of MCCs and the [Owners/Lending Bodys] rightsunder the Transaction Documents it enters into with the [Owner/LendingBody] rank in priority to the interests of the members of the Scheme; and

(l) (exercise of powers): it has not exercised its powers under the SchemeConstitution to release, abandon or restrict any power conferred on it bythe Scheme Constitution; and

(m) (benefit): entry into the Transaction Documents to which it is a party is avalid exercise of its powers under the Scheme Constitution for thebenefit of the members of the Scheme.




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(c) (no immunity): neither it nor any of its Subsidiaries has immunity fromthe jurisdiction of a court or from legal process; and

(d) (non-residential purposes): the Building is an existing building in theCity of Melbourne that is used entirely or predominantly for non-residential purposes; and

(e) (efficiency or sustainability): the Project will improve the energy, wateror environmental efficiency or sustainability of the Building; and

(f) (Existing Tenants):

(i) each Existing Tenant who is or would be liable to pay for all orpart of the Environmental Upgrade Charge levied under thisagreement consents to the application of the EnvironmentalUpgrade Charge and agrees to pay the Owner an agreed amountof the Environmental Upgrade Charge; and

(ii) a copy of each consent and agreement of each Existing Tenantreferred to in clause 8.3(f)(i) is contained in annexure 7; and






(ii) the credit assessment referred to in clause 8.4(a)(i) demonstratesthat the Owner will be able to comply with its obligations underclause 9.1 and annexure 8; and

(b) (Funding Limit): it has provided or will provide financialaccommodation equal to the Funding Limit on the terms set out inannexure 8.

In this clause 8, these meanings apply unless the contrary intention appears:

Compliance Plan means the compliance plan of the Scheme established in accordancewith part 5C.4 of the Corporations Act.

Managed Investment Scheme has the meaning it has in the Corporations Act.


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Scheme means [to be inserted].

Scheme Constitution means [to be inserted].

Scheme Property means all the [Owners/Lending Bodys] rights, property andundertaking which are the subject of the Scheme:

(a) of whatever kind and wherever situated; and

(b) whether present or future.


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[Applicable provisions for partnerships]









(f) (arms length terms): it enters into the Transaction Documents to whichit is a party in good faith and on terms that are reasonable in thecircumstances, reflect market costs for the financial accommodation tobe provided by the Lending Body to the Owner and are at arms length to

each other party to any Transaction Document.

3.2 Partnership representations and warranties


(a) (disclosure of terms): true copies of the Partnership Agreement(including any amending documents) have been provided to the[Owner/Lending Body] and MCC and disclose all terms of thePartnership; and

(b) (power): it has power under the terms of the Partnership Agreement to

enter into the Transaction Documents to which it is a party and complywith its obligations under them; and

8/6/2019 1200 Buildings Environmental Upgrade Finance 4 M