Leases are important — they are long-term, binding commitments. They may well be the largest investment that a tenant will make in its business. A well drafted lease can make the difference between a business succeeding or failing. For a landlord, a lease represents and protects a major asset and income stream. Although to a large extent leasing has now been standardised, each landlord and tenant is different and very few commercial leasing situations will neatly fit the standard forms currently available on the market. There is also a tendency to sign up to a standard form, without necessarily realising the effect of certain provisions in that form. While the standard form leases available provide an excellent base, it is important to carefully consider your circumstances (and the relevant premises) and adjust the lease accordingly.
STANDARD LEASE FORMS
The most common form of lease adopted by commercial landlords in New Zealand is the Auckland District Law Society (ADLS) Deed of Lease. The Property Council of New Zealand (formerly BOMA) also publishes a lease form, divided according to the category of the premises (office, retail or industrial). Generally it is considered:
CRITICAL TERMS FOR ALL LEASES
There are certain provisions where the ‘default’ should never be taken as standard, but should be carefully considered depending on the relevant circumstances of landlord and tenant. These include:
The above ought to be considered no matter what type of property is being leased.
SUMMARY
Our standard leasing forms provide helpful starting points only. They require careful attention. If a lease is poorly drafted or thought out, the errors will become “the gift that keeps on giving”.
It is not an easy time to be selling a small business. High inflation and waning consumer demand has lead to compressed margins and reduced revenue for many. Uncertainty in the global markets due to wars, protectionism and the changing geopolitical landscape has blunted the confidence of prospective purchasers. Closer to home, sub 3% interest rates are now a fading memory and house prices have come off their peak, so fewer aspiring business owners can easily ‘top up their mortgage’ to fund the purchase of a business. How can sellers respond? Business owners looking to sell and wanting to achieve the best price for their business may need to consider options to reduce a purchaser’s reliance on third party finance to fund the acquisition of their business. This may include: Asset restructuring: Premises, plant and equipment are restructured to reduce the capital investment required by a purchaser. For example, valuable machinery could be retained by the seller and leased to the purchaser, meaning that the purchaser does not have to finance the upfront cost of purchasing that asset. Vendor finance: The seller advances a portion of the purchase price to the purchaser to be repaid by the purchaser over time. Vendor loans vary widely in terms of whether they bear interest, whether they are amortising (repaid gradually over the term) or repaid in a lump sum on a fixed date. Earn Outs: The purchaser agrees to pay part of the purchase price in instalments contingent on the business achieving certain financial targets. Payments could be fixed or adjusted based on the level of revenue generated by the business. Vendor Shares: The vendor retains shares in the business. The vendor might give the purchaser options to acquire 100% of the shares over time. Objectives and Risks From a seller’s perspective, the most common objective of using any of the above mechanisms is to achieve a better price for their business. Compared to fully bank or finance company debt funded transactions, vendor funded transactions generally expose the seller to risk of purchaser default over a longer period. This is because repayment of vendor loans or achievement of earn-out targets depend on the success of the business under new ownership. These risks can be reduced by, for example: Requiring the purchaser to pledge security to the seller (mortgages, personal guarantees, registered security interests). Giving the seller a right to appoint a director for so long as they continue to hold shares in the business. Contractual provisions that exclude artificial reduction of gross profits for the purposes of earn out calculations. Complexity and Cost If not managed well, transactions that include vendor funding mechanisms can be more complicated and take longer to negotiate than similar deals that are not vendor funded (and increased legal costs as a result). Also, the downstream consequences of vendor funding arrangements need to be carefully thought through to avoid unforeseen negative consequences. For example, if the vendor registers a security interest in the business assets, how will that affect the purchaser’s ability to raise finance or obtain trade credit moving forward? In our experience, the best outcomes typically start with a well-designed structure. Convoluted and legally complicated structures are generally less effective in practice than more straight forward, logical structures. Complexity can often be avoided if the transaction is properly designed from the outset. Business owners considering vendor funding options should: Discuss potential structures with their business broker or lawyer to identify fit-for-purpose options that could be offered to potential purchasers; Focus on the characteristics of the business and the specific circumstances and objectives of the seller and buyer when designing a transaction structure - do not start with a particular structure in mind and adapt it to fit the circumstances (this is a recipe for legal complexity); and Try to aim for a structure that makes commercial sense and avoids risks being transferred to a party who cannot control it or who would not naturally be exposed to it. A well designed vendor funding structure should be easy for all parties to understand and give the purchaser sufficient freedom and control to ensure the business remains successful while minimising the default risk faced by the seller. Our commercial team at Holland Beckett is experienced in business sale transactions from $50,000 to $100 million including vendor funding arrangements of all types and would be happy to discuss how to make the sale of your business a success for you and your purchaser.
The Incorporated Societies Act 2022 (“New Act”) came into force on 5 October 2023. The New Act replaces the Incorporated Societies Act 1908 (“1908 Act”). All existing incorporated societies must apply to reregister under the New Act before April 2026 if they wish to continue as an incorporated society. Failing to do so will result in the society being deregistered. The online registration process is now open to existing societies on the Companies Office website. What do I need to do? In order to reregister, the society must first: Update its constitution to comply with section 26 of the New Act. Develop a membership record and membership consent form to comply with section 76 of the New Act; Have at least 10 members to comply with section 74 of the New Act; Hold consent in writing from each of the committee/board members (officers) to be an officer and ensure that each officer meets the criteria recorded in section 47 of the New Act; Provide at least one person’s contact details to enable the Companies Office to contact the society. What must the constitution contain? Section 26 sets out all matters which must be included in a constitution. These matters are largely administrative. One of the most important additions is the requirement to have a dispute resolution procedure. The compulsory provisions include: The name of the society. The purposes of the society. How a person becomes a member of the society, including a requirement that a person must consent to be a member. How a person ceases to be a member of the society. Arrangements for keeping the society’s register of members up to date. The roles, functions, powers, and procedures of the committee/board. How the contact person or persons will be elected or appointed. How the society will control and manage its finances. The method by which the constitution may be amended. Procedures for resolving disputes, including providing for how a complaint may be made. Arrangements and requirements for general meetings. The nomination of a not-for-profit entity, or a class or description of not-for-profit entities, to which any surplus assets of the society should be distributed on a liquidation of the society or on, or to enable, the removal of the society from the register. It is also an opportune time for you to review the society’s objects and any procedures that may no longer be fit for purpose. How do I vary/replace the constitution? You must refer to your current constitution. Most constitution contain a ‘variation/amendment’ provision describing the procedure that must be followed to formally vary or amend the constitution. You are likely to find that the proposed changes must be circulated prior to a general meeting and can only be adopted if a resolution is passed by the majority stipulated in the constitution. How can Holland Beckett assist? Holland Beckett can assist you with reviewing and updating your constitution, reviewing and developing policies to comply with the New Act and navigating the reregistration process. Please do not hesitate to contact us if you require assistance with this transition.
The Consumer Guarantees Act 1993 (CGA) provides a consumer with remedies if a business has failed to provide them with goods or services to a reasonable standard, regardless of whether the consumer has a written warranty or guarantee from the supplier or manufacturer. The CGA is intended to foster a trading environment in which consumer’s interests are protected, businesses compete effectively, and consumers and businesses can participate confidently. Does the CGA affect me? If you supply products or services as a normal part of your business, you are likely to be considered \'in trade\' and the CGA will apply to your business transactions. The CGA will affect you if you are a manufacturer of products that are subsequently supplied to consumers, even if those products are indirectly supplied through distributors and/or retailers. Parties to business-to-business transactions can (and regularly do) agree to exclude or modify some or all of the default guarantees and remedies under the CGA, but such an agreement must be in writing and the parties will only be bound if it is fair and reasonable. A manufacturer of a product could exclude the CGA in a contract with a distributor, but that will not affect the rights of an end consumer of that product under the CGA against the manufacturer. What are my obligations under the CGA? As a business or person in trade, any goods or services you manufacture or supply must meet the minimum requirements outlined in the CGA. Goods must: Be sold with clear title free from security interests Be of acceptable quality Be fit for purpose Match their description Comply with samples Be reasonably priced, if there is no predetermined price If delivered by the supplier, be delivered on time Have spare parts or repairs available Services must be: Performed with reasonable skill and care Fit for purpose Provided within a reasonable time Priced reasonably, if there is no predetermined price For more detail on these obligations, see the guidance available on the Consumer Protection website. When might I be liable to claims under the CGA? If a supplier has breached a guarantee under the CGA, the consumer may have remedies including requiring the supplier to repair, replace or refund the purchase price. The consumers remedy will depend upon the severity of the breach and the type of product or service concerned. For smaller claims, if a consumer is unable to resolve the matter directly with a supplier, a cost effective approach may be to make a Disputes Tribunal claim. If you are would like to understand more about your rights or responsibilities under the Consumer Guarantees Act, Holland Beckett can provide you with advice and guidance.
