Exhibit 10.12
Form: 07SL SUBLEASE Leave this space clear.
Licence: 00-00-000 Affix additional pages to
Licensee: Xxxxx Xxxxxx NEW SOUTH WALES the top left-hand corner.
Xxxxxxx REAL PROPERTY XXX 0000
PRIVACY NOTE: THIS INFORMATION IS LEGALLY REQUIRED AND WILL BECOME PART OF THE PUBLIC RECORD
-------------------------------------------------------------------------------------------------------------------
STAMP DUTY Office of State Revenue use only
-------------------------------------------------------------------------------------------------------------------
(A) HEAD LEASE Y442223
-------------------------------------------------------------------------------------------------------------------
(B) TORRENS Property leased: if appropriate, specify part or premises
TITLE Part Folio Identifier 3/733666
being part Xxxxxx Xxxxx, 0 Xxxxxxx Xxxxxx, Lane Cove as per the annexed Plan.
-------------------------------------------------------------------------------------------------------------------
(C) LODGED BY Delivery Name, Address or DX and Telephone CODE
Xxx
000X Xxxxx Xxxxxx Xxxxxxx
XX 000 Xxxxxx
Tel: 00 0000 0000 SL
Reference (optional): LC.AGS.00-0000-0000
-------------------------------------------------------------------------------------------------------------------
(D) SUBLESSOR LEGO AUSTRALIA PTY LIMITED
ACN 001 540 914
-------------------------------------------------------------------------------------------------------------------
The sublessor leases to the sublessee the property referred to above.
(E) Encumbrances (if applicable): 1. 2. 3.
-------------------------------------------------------------------------------------------------------------------
(F) SUBLESSEE ISOLAGEN AUSTRALIA PTY LIMITED
ACN 101 980 143
(G) TENANCY:
-------------------------------------------------------------------------------------------------------------------
(H) 1. TERM Two (2) years
2. COMMENCING DATE 20 November 2002
3. TERMINATING DATE 19 November 2004
4. With an OPTION TO RENEW for a period of 1 year set out in clause 17
5. Together with and reserving the RIGHTS set out in Annexure A
6. Incorporates the provisions or additional material set out in ANNEXURE(S) A hereto.
7. Incorporates the provisions set out in MEMORANDUM filed at Land and Property Information New South Wales as No.
8. The RENT is set out in item 7 of Annexure A
ALL HANDWRITING MUST BE Page 1 of
IN BLOCK CAPITALS
DATE / /
dd mm yyyy
(I) See the last page of annexure A for execution.
----------------------------------------------
| Note: where applicable, the sublessor must |
| complete the statutory declaration below. |
----------------------------------------------
(J) STATUTORY DECLARATION
I
solemnly and sincerely declare that-
1. The time for the exercise of option to renew in expired
sublease
No. has ended:
2. The sublessee under that
sublease has not exercised the option.
I make this solemn declaration conscientiously believing the same to be
true and by virtue of the Oaths Xxx 0000.
Made and subscribed at in the State of
on in the presence of-
Signature of witness: Signature of sublessor:
Name of witness:
Address of witness:
Qualification of witness:
Page 2 of
This is the annexure "A" referred to in the
sublease between Lego Australia Pty
Limited as sublessor and Isolagen Australia Pty Limited as sublessee dated
CONTENTS
1. DEFINITIONS AND INTERPRETATION 9
1.1 Definitions 9
1.2 Rules for interpreting this Lease 15
1.3 Business Days 16
1.4 Multiple parties 16
2. TERM 16
2.1 Term of Lease 16
2.2 Holding over 16
3. RENT AND RENT REVIEW 17
3.1 Payment of Rent 17
3.2 Rent reviews 17
3.3 CPI rent review 17
3.4 Market rent review 17
3.5 Appointment of Valuer 18
3.6 Determination by Valuer 18
3.7 Adjustment 19
3.8 Percentage review 19
4. OUTGOINGS 19
4.1 Variation of Lessee's Proportion 19
4.2 Payment of Lessee's Contribution 19
4.3 Notice from Lessor 19
4.4 Lessor's estimate of Lessee's Contribution 20
4.5 Adjustment 20
5. GST 20
5.1 Payment of GST 20
5.2 Reimbursements 20
5.3 Indemnities 20
6. LESSOR'S RIGHTS AND OBLIGATIONS 21
6.1 Quiet enjoyment 21
6.2 Common Areas 21
6.3 Services 21
6.4 Lessor's work 22
6.5 Lessor's right to enter Premises 22
6.6 Restricted access to Land 23
6.7 Dedication or easement 23
6.8 Rules 23
6.9 Benefit of Lessee's obligations 23
Page 3 of 57
6.10 Superior interests 24
6.11 Lessor may perform Lessee's obligations 24
6.12 No exclusive use 24
6.13 Keys 24
7. LESSEE'S OBLIGATIONS 24
7.1 General obligation 24
7.2 Maintenance of Premises 25
7.3 General prohibitions on Lessee 26
7.4 Notification of damage 27
7.5 No alterations by Lessee 27
7.6 Lessor's interest in Premises 28
7.7 Cost and risk of Lessee's obligations 28
7.8 Emergency access 28
7.9 Interest on overdue money 28
7.10 No overloading 29
7.11 Business hours 29
7.12 Cleaning 30
7.13 Upgrade of services 30
7.14 Conveniences 30
8. ENVIRONMENTAL ISSUES 30
8.1 No representation 30
8.2 Environmental obligations 31
8.3 Indemnity and release 32
9. INSURANCE, RISK AND INDEMNITIES 33
9.1 Public liability 33
9.2 Workers compensation 33
9.3 Contents 33
9.4 Plate glass 33
9.5 Proceeds of insurance 34
9.6 Policies 34
9.7 Maintain insurance 34
9.8 Lessee's risk 34
9.9 Release of Lessor 34
9.10 Indemnity 35
9.11 Continuing indemnity 35
10. DAMAGE OR RESUMPTION 35
10.1 Damage to Premises or Building 35
10.2 Damage caused by Lessee 36
10.3 Lessor's rights not affected 36
10.4 Resumption 36
10.5 Dispute 36
11. ASSIGNMENT,
SUBLEASE AND MORTGAGE 37
11.1 Restriction on assignment and other dealings 37
Page 4 of 57
11.2 General requirements 37
11.3 Requirements for assignment 38
11.4 Requirements for
sublease or licence 38
11.5 Change in control of Lessee 38
11.6 Mortgage or charge 38
12. TERMINATION 38
12.1 Events of default 38
12.2 Lessor's termination after default 39
12.3 Essential terms 39
12.4 Breach of essential term 40
12.5 Lessor's entitlement to damages 40
12.6 Instituting proceedings 40
12.7 Lessor's other rights 41
12.8 Lessee's obligations on termination 41
12.9 Storage of Lessee's Property 41
12.10 Directory 41
13. POWER OF ATTORNEY 42
13.1 Appointment of attorney 42
13.2 General 42
13.3 Protected Power 42
14. NOTICES 43
14.1 How to give a notice 43
14.2 When a notice is given 43
14.3 Address for notices 43
15. GENERAL 43
15.1 Governing law 43
15.2 Liability for expenses 44
15.3 Giving effect to this Lease 44
15.4 Waiver of rights 44
15.5 Operation of this Lease 45
15.6 Operation of indemnities 45
15.7 Lessor's consent 45
15.8 No merger 45
15.9 Exclusion of contrary legislation 45
15.10 Counterparts 46
15.11 Compliance 46
15.12 Exclusion of statutory provisions 46
15.13 Mitigation 46
15.14 Payment after notice 46
15.15 Lessee's warranty 46
16. GUARANTEE AND INDEMNITY 47
16.1 Definitions in this clause 47
16.2 Guarantee 47
Page 5 of 57
16.3 Indemnity 47
16.4 Protection and rights of Lessor 48
17. OPTION TO RENEW 49
17.1 Grant of new lease 49
17.2 Terms of new lease 49
18. SECURITY DEPOSIT AND BANK GUARANTEE 50
18.1 Security deposit 50
18.2 Bank guarantee 50
19. CAR PARK LICENCE 51
19.1 Grant 51
19.2 Terms of Licence 51
20. COMMON AREA LICENCE 51
20.1 Grant 51
20.2 Terms of Licence 51
21. LESSEE'S WORKS 52
22. COMPLETION OF LEASE 52
23. LESSEE'S WORKS AND LESSEE'S FITOUT 52
23.1 Lessee's drawings and specifications 52
23.2 Authorisations 53
23.3 Conditions regarding Lessee's Fitout 53
23.4 Insurance 54
23.5 Structural work or alterations to services 54
23.6 Preservation of Lessor's warranties 54
23.7 Occupation as licensee 54
Schedules
1 RULES 55
Page 6 of 57
REFERENCE SCHEDULE
ITEM 1: LAND
(Clause 1.1)
Folio Identifier 3/733666
ITEM 2: LESSOR
(Clause 1.1)
Name: LEGO AUSTRALIA PTY LIMITED
ACN: 001 540 914
Address: C/- Xxxxx & Xxxxxxx Commercial Xxxxx 0
0 Xxxxxxxxxxx Xxxxxx
XXXXXX XXX 0000
Fax number: (00) 0000 0000
Attention: Xxxx Xxxxxxxxxx
ITEM 3: LESSEE
(Clause 1.1)
Name: ISOLAGEN AUSTRALIA PTY LIMITED
ACN: 101 980 143
Address: Xxxxxx Xxxxx, 0 Xxxxxxx Xxxxxx,
Xxxx Xxxx XXX 0000
Fax number:
Attention: Xxx Xxxxxx
ITEM 4: PREMISES
(Clause 1.1)
Part Ground Floor, 2 Lincoln Street, Lane Cove as per
the annexed Plan
ITEM 5: PERMITTED USE
(Clause 1.1, 7.1)
Commercial office, warehouse and laboratory space
ITEM 6: TERM
(Clause 1.1, 2.1)
(a) 2 years
(b) Commencing Date: 20 November 2002
(c) Terminating Date: 19 November 2004
ITEM 7: RENT
(Clause 3.1)
$155,547.05
Page 7 of 57
ITEM 8: (a) REVIEW DATES (b) TYPE OF REVIEW
(Clause 3) During Term: Each anniversary of the 4%
Commencement Date
During First Each anniversary of the 4%
Option: Commencement Date
ITEM 9: LESSEE'S PROPORTION
(Clause 1.1)
N/A
ITEM 10: OCCUPATION DATE
(Clause 7.2, 8.2)
20 November 2002
ITEM 11: PUBLIC LIABILITY INSURANCE
(Clause 9.1)
$20,000,000.00
ITEM 12: GUARANTOR
(Clause 1.1, 16)
N/A
ITEM 13 FIRST OPTION
(Clause 17)
(a) Option Term: 1 year
(b) Commencing Date: 20 November 2004
(c) Terminating Date: 19 November 2005
ITEM 14 BUSINESS HOURS
(Clause 7.10)
24 hours 7 days
ITEM 15 BANK GUARANTEE
(Clause 18.2)
N/A
ITEM 16 SECURITY DEPOSIT
(Clause 18.1)
3 months Rent, Lessee's Proportion of Outgoings and GST
on that amount which at the Commencement Date is
$41,995.
Page 8 of 57
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Lease unless the contrary intention appears:
"ATTORNEY" means an attorney appointed under this Lease and any attorney's
substitute or delegate.
"AUTHORISATION" means:
(a) an authorisation, consent, declaration, licence, permit, exemption,
notarisation or waiver, however it is described; and
(b) in relation to anything that could be prohibited or restricted by law
if a Government Agency acts in any way within a specified period, the
expiry of that period without that action being taken,
including any renewal or amendment.
"BUILDING" means all buildings and other improvements on the Land.
"BUSINESS DAY" means a day that is not a Saturday, Sunday or public holiday
in Sydney.
"CAR PARK" means the part of the Land or Building (if provided by the
Lessor) for the parking of motor vehicles and the part of the Land used to
enter and exit that part of the Land or Building.
"CHANGE OF CONTROL" means for a corporation, a change in:
(a) Control of the composition of the board of directors of the
corporation;
(b) Control of more than half the voting rights attaching to shares in the
corporation; or
(c) Control of more than half the issued shares of the corporation (not
counting any share which carries no right to participate beyond a
specified amount in the distribution of either profit or capital).
(a) "COMMENCING DATE" means the date specified in Item 6(b).
"COMMON AREAS" means the part of the Building which the Lessor intends for
common use.
"CONTAMINATED" has the same meaning given to it in the Contaminated Land
Management Act 1997 (NSW).
"CONTROL" means a power or control that is direct or indirect or that is,
or can be, exercised as a result of, by means of or by the revocation or
breach of a trust, an agreement, a practice, or any combination of them,
whether or not they are enforceable. It does not matter whether the power
or control is express or implied, formal or informal, exercisable alone or
jointly with someone else.
Page 9 of 57
"CORPORATIONS ACT" means the Corporations Xxx 0000 (Cth).
"COSTS" and "CLAIMS" means any:
(a) duty, liability or obligation to any person;
(b) cost or expense;
(c) loss or damage; and
(d) demand, notice, order or other requirement.
"CPI" means the Sydney Consumer Price Index (All Groups) published by the
Commonwealth Statistician, or any similar index which replaces it.
"DANGEROUS GOOD" has the same meaning as in the latest edition of the
Australian Code for the Transport of Dangerous Goods by Road and Rail.
"ENVIRONMENT" means all components of the earth, including:
(a) land, air and water;
(b) any layer of the atmosphere;
(c) flora and fauna;
(d) any organic or inorganic matter and any living organism including humans;
(e) human made or modified structures and areas;
(f) the aesthetic characteristics of the components of the earth, including
appearance, sound, odour, taste and texture; and
(g) ecosystems with any combination of the above.
"ENVIRONMENTAL ASPECT" means the interaction, relationship or impact of an
operation or activity with the Environment including, for example:
(a) impacts of operations or activities on items of heritage or endangered
species; and
(b) operations or activities causing Pollution or Contamination.
"ENVIRONMENTAL LAW" means any statute or common law:
(a) relating to the storage, handling or transportation of Waste, Dangerous
Goods or Hazardous Material;
(b) relating to occupational health and safety; or
(c) which has as one of its purposes or effects the protection of the
Environment.
Page 10 of 57
"ENVIRONMENTAL NOTICE" means any direction, order, demand, licence or other
requirement from a Government Agency to take any action or refrain from taking
any action in respect of the Premises or their use in connection with any
Environmental Law.
"FIRST OPTION" means the Option Term, if any, referred to in Item 13(a).
"GOVERNMENT AGENCY" means:
(a) a government or government department or other body;
(b) a governmental, semi-governmental or judicial person; or
(c) a person (whether autonomous or not) who is charged with the
administration of a law.
"GUARANTOR" means the party named in Item 12.
"GST" means the same as in the GST Law, and any applicable additional tax,
penalty tax, fine, interest or other charge.
"GST LAW" means the same as "GST law" means in A New Tax System (Goods and
Services Tax) Xxx 0000 (Cth).
"HAZARDOUS MATERIAL" means material which, because it is toxic, corrosive,
flammable, explosive, or infectious or possesses some other dangerous
characteristic, is potentially dangerous to the Environment when:
(a) stored or handled; or
(b) any part of the Environment is exposed to it.
"INSOLVENCY EVENT" means, for a person, being in liquidation or provisional
liquidation or under administration, having a controller (as defined in the
Corporations Act) or analogous person appointed to it or any of its property,
being taken under section 459F(1) of the Corporation Act to have failed to
comply with a statutory demand, being unable to pay its debts or otherwise
insolvent, dying, ceasing to be of full legal capacity or otherwise becoming
incapable of managing its own affairs for any reason, taking any step that
could result in the person becoming an insolvent under administration (as
defined in section 9 of the Corporations Act), entering into a compromise or
arrangement with, or assignment for the benefit of, any of its members or
creditors, or any analogous event.
"LAND" means the land described in Item 1.
"LEASE" means this
sublease and any equitable lease or common law tenancy
evidenced by this lease.
"LESSEE" means the party named in Item 3.
"LESSEE'S AGENTS" means every agent, employee, licensee, contractor and invitee
of the Lessee.
Page 11 of 57
"LESSEE'S CONTRIBUTION" means, in respect of an Outgoings Year, the Lessee's
Proportion multiplied by the Outgoings for that Outgoings Year.
"LESSEE'S FITOUT" means the works to be carried by the Lessee to fitout the
Premises and the Licensed Area in accordance with this Lease.
"LESSEE'S PROPERTY" means all the Lessee's fixtures, fittings, equipment,
furnishings and other property of the Lessee in the Premises.
"LESSEE'S PROPORTION" means the Lettable Area of the Premises divided by the
total Lettable Area of the Building which, on the Commencing Date, is the
percentage specified in Item 9.
"LESSEE'S WORKS" means the works to the premises to be performed by the Lessee
in accordance with clause 21.1.
"LESSOR" means the party named in Item 2.
"LESSOR'S ASSESSMENT" means the Lessor's written determination of the current
market rent for the Premises from the relevant Review Date, having regard to the
considerations listed in clause 3.6(a) and anything else the Lessor in its
absolute discretion considers relevant.
"LESSOR'S PROPERTY" means all the Lessor's plant, equipment, fixtures, fittings,
furnishings and other property of the Lessor on or in the Land or the Building.
"LETTABLE AREA" means the gross lettable area calculated by the Lessor's
surveyor using the PCA method of measurement applicable on the date of
calculation.
"LICENSED AREA" means that part of the Common Area adjacent to car parking bays
64 and 65.
"OCCUPATION DATE" means the date specified in Item 10.
"OPTION EXERCISE PERIOD" means the period beginning 9 months before and ending 3
months before the start of the relevant Option Term.
"OPTION TERM" means each period specified in Items 13(a), (d) and (g).
"OUTGOINGS" means all amounts assessable, chargeable, payable or incurred by the
Lessor in respect of the Land or the control, management or maintenance of the
Land (plus GST on those amounts to the extent that the Lessor does not receive
an input tax credit for that GST) including, but not limited to, the following:
(a) (RATES AND LEVIES) all rates, rents, levies and other charges payable to
any Government Agency;
(b) (TAXES) all imposts, duties, fees, deductions, compulsory loans or
withholdings and taxes (excluding income tax and capital gains tax) payable
to any Government Agency, including land tax on the basis assessed to the
Lessor;
Page 12 of 57
(c) (INSURANCE) any insurance premium and other expense relating to any
insurance policy in respect of the Land, its use and the Lessor's
Property including, but not limited to, insurance in respect of
industrial special risks, workers compensation, public liability,
consequential loss and loss of rent insurance;
(d) (CLEANING) cleaning and disposal of refuse;
(e) (SECURITY AND CARETAKING) security and caretaking services;
(f) (MANAGEMENT) all costs in respect of the management and administration
of the Land, including fees payable to any managing agent,
irrespective of where the management or administration is carried out
and all salaries, wages, superannuation, leave entitlements and other
employment costs;
(g) (SERVICES) the cost of all services supplied to the Land which are not
charged directly to any lessee including, but not limited to,
lighting, power, heating, water, lifts, escalators, air-conditioning
and emergency services, and all associated maintenance, repair,
replacement and servicing costs;
(h) (MAINTENANCE) the cost of all repairs, renovations, replacements and
maintenance of the Land, excluding the cost of any structural
improvement which has the effect of upgrading the Building to a better
or more extensive condition than when it was new; and
(i) (WASHROOMS) the cost of supplying paper towels, soap and other toilet
requisites in the washrooms in the Building.
"OUTGOINGS YEAR" means a calendar year or any other 12 month period used by
the Lessor in relation to the Land and any proportionate part of that
calendar year or 12 month period occurring during the Term.
"PCA" means the Property Council of Australia Limited.
"PERMITTED USE" means the use specified in Item 5.
"POLLUTION" means the release, emission or discharge into the Environment
of a substance which causes damage or harm to any aspect of the
Environment, for example:
(a) pollution of air;
(b) pollution of waters;
(c) offensive noise; and
(d) pollution of land.
"PREMISES" means:
(a) the part of the Building described in Item 4, extending to:
(i) the internal surface of external walls and of internal structural
walls and pillars of the Building;
Page 13 of 57
(ii) the internal surfaces of the ceiling and of concrete or other
floors;
(iii) the central line of partitions separating the Premises from
adjoining premises;
(iv) the external surfaces of partitions and doors separating the
Premises from Common Areas or from premises not intended to be
leased; and
(v) the external surfaces of glass contained in external windows;
(b) all internal partitions, windows and window frames, doors and door
frames, which are fully within the Premises;
(c) any finishes on walls, floors, ceilings, partitions, doors and windows
included in the Premises, including paint, wallpaper and other
materials;
(d) any Lessor's Property located in the Premises; and
(e) pipes and connections to water, sewerage, electricity, gas,
telecommunications, air conditioning and other services and supplies
that are situated within the Premises and which service the Premises,
but no other part of the Building.
"REFERENCE SCHEDULE" means the reference schedule in this Lease.
"RENT" means the annual rent specified in Item 7 (which applies on the
Commencing Date) as adjusted under this Lease.
"RENT DAY" means the Commencing Date and the first day of every month.
"REVIEW DATE" means each date specified in Item 8(a).
"TERM" means the term of this Lease as specified in Item 6(a).
"TERMINATING DATE" means the date specified in Item 6(c).
"VALUER" means a full member (for at least five years) of the NSW Division
of the Australian Property Institute Inc. who:
(a) is licensed to practice as a valuer of the same type of property as
the Premises;
(b) has at least 5 years' experience in valuing that type of property;
and
(c) is active in the market for valuation of that type of property.
"WASTE" means a substance that is discarded, rejected, unwanted, surplus or
abandoned:
(a) whether or not intentionally;
(b) whether or not it has a value or use; and
(c) whether or not it is intended for sale or recycling, reprocessing,
recovery or purification.
Page 14 of 57
"WORKS LICENSED AREA" means the part of Building known as Area 1B
(excluding the premises) reasonably required by the Lessee to carry
out the Lessee's Works.
1.2. RULES FOR INTERPRETING THIS LEASE
Headings are for convenience only, and do not affect interpretation.
The following rules also apply in interpreting this Lease, except
where the context makes it clear that a rule is not intended to apply.
(a) A reference to:
(i) legislation (including subordinate legislation) is to that
legislation as amended, re-enacted or replaced, and
includes any subordinate legislation issued under it;
(ii) a document or agreement, or a provision of a document or
agreement, is to that document, agreement or provision as
amended, supplemented, replaced or novated;
(iii) a party to this Lease or to any other document or
agreement includes a permitted substitute or a permitted
assign of that party;
(iv) a person includes any type of entity or body of persons,
whether or not it is incorporated or has a separate legal
identity, and any executor, administrator or successor in
law of the person; and
(v) anything (including a right, obligation or concept)
includes each part of it.
(b) A singular word includes the plural, and vice versa.
(c) A word which suggests one gender includes the other genders.
(d) If a word is defined, another part of speech has a corresponding
meaning.
(e) If an example is given of anything (including a right,
obligation or concept), such as by saying it includes something
else, the example does not limit the scope of that thing.
(f) The word "AGREEMENT" includes an undertaking or other binding
arrangement or understanding, whether or not in writing.
(g) The words "SUBSIDIARY", "HOLDING COMPANY" and "RELATED BODY
CORPORATE" have the same meanings as in the Corporations Act.
(h) A reference to a month is to a calendar month.
(i) A reference to an "ITEM" is to the relevant Item in the
Reference Schedule.
Page 15 of 57
1.3 BUSINESS DAYS
If the day on or by which a person must do something under this Lease is
not a Business Day:
(a) if the act involves a payment that is due on demand, the person must
do it on or by the next Business Day; and
(b) in any other case, the person must do it on or by the previous
Business Day.
1.4 MULTIPLE PARTIES
If a party to this Lease is made up of more than one person, or a term is
used in this Lease to refer to more than one party:
(a) an obligation of those persons is joint and several;
(b) a right of those persons is held by each of them severally; and
(c) any other reference to that party or that term is a reference to each
of those persons separately, so that (for example):
(i) a representation, warranty or undertaking is given by each of
them separately; and
(ii) a reference to that party or that term in clause 12.1 is a
reference to each of those persons separately.
2. TERM
2.1 TERM OF LEASE
The Term begins on the Commencing Date and ends on the Terminating Date.
2.2 HOLDING OVER
(a) If the Lessee continues to occupy the Premises with the Lessor's
consent after the Terminating Date the Lessee is a monthly tenant and
must pay one twelfth of the following monthly in advance:
(i) the Rent; and
(ii) any other money payable by the Lessee to the Lessor under this
Lease.
(b) Subject to this clause 2.2, the monthly tenancy is on the same terms
as this Lease, but including any changes necessary to make the terms
appropriate for a monthly tenancy.
(c) Either party may terminate the monthly tenancy by giving at least one
month's written notice to the other.
Page 16 of 57
3. RENT AND RENT REVIEW
3.1 PAYMENT OF RENT
The Lessee must pay the Rent to the Lessor by equal monthly instalments in
advance on each Rent Day (and proportionately for any part of a month). The
Lessee must pay the first instalment on the Commencing Date and must
deliver each instalment to the Lessor or as otherwise directed by the
Lessor.
3.2 RENT REVIEWS
(a) Subject to paragraph (b), the rent review method applicable on any
Review Date is the method specified in Item 8(b) next to that Review
Date.
(b) If the Rent determined under the rest of this clause 3 is less than
the Rent payable immediately before the relevant Review Date, then the
Rent payable from the Review Date does not change.
3.3 CPI RENT REVIEW
If the letters "CPI" or their equivalent appear in Item 8(b) next to a
Review Date, the Rent payable from that Review Date (the "relevant Review
Date") until the next Review Date is determined as follows:
R x CPI
RR = -------
CCPI
where:
RR = the Rent applicable from the relevant Review Date until the next
Review Date;
R = the Rent payable immediately before the relevant Review Date.
CPI = the CPI last published before the relevant Review Date.
CCPI = the CPI last published before:
(a) in the case of the first Review Date, the Commencing Date;
or
(b) in every other case, the Review Date immediately preceding
the relevant Review Date.
3.4 MARKET RENT REVIEW
(a) If the words "current market rent" or their equivalent appear in Item
8(b) next to a Review Date the Lessor may give the Lessee a Lessor's
Assessment no more than 3 months before (and at any time after) the
Review Date.
(b) The amount stated in the Lessor's Assessment is the Rent applicable
from the Review Date unless the Lessee gives the Lessor written notice
within 21 days, or
Page 17 of 57
any longer period agreed between the parties in writing, that it does
not agree with the amount. Time is of the essence under this paragraph
(b).
3.5 APPOINTMENT OF VALUER
(a) If:
(i) the Lessee gives a written notice under clause 3.4(b); and
(ii) the Lessor and the Lessee do not agree in writing on the Rent
applicable from the relevant Review Date within 21 days of the
Lessee giving a written notice under clause 3.4(b), then the
Lessee and the Lessor must, within 35 days of the Lessee giving a
written notice under clause 3.4(b), jointly appoint a Valuer to
determine:
(A) the current market rent for the Premises (exclusive of GST),
which is the Rent applicable from the relevant Review Date;
and
(B) the proportion in which the Lessee and the Lessor must pay
the Valuer's costs
(b) If the Lessor and Lessee do not agree on and appoint a Valuer under
paragraph (a), the Lessor must appoint a Valuer to determine the Rent
applicable from the relevant Review Date, and must notify the Lessee
of the Valuer's appointment.
(c) The party appointing the Valuer must instruct the Valuer to make a
determination within 14 days of the Valuer's appointment.
(d) If any Valuer appointed under this clause declines its appointment or
does not make its determination in time, the appointing party may (and
must, if requested to do so in writing by the other party given before
the Valuer makes its determination) appoint another Valuer in its
place.
3.6 DETERMINATION BY VALUER
(a) When determining the current market rent of the Premises as at the
relevant Review Date the Valuer must observe all relevant valuation
principles and:
(i) take the following into account:
(A) the terms of this Lease;
(B) the Term, including the expired part of the Term; and
(C) the value of the Lessor's Property in or on the Premises;
(ii) make a determination on the basis that the Premises are offered
with vacant possession;
Page 18 of 57
(iii) not take account of:
(A) the value of the Lessee's Property in or on the Premises;
(B) any condition of the Premises resulting from the Lessee's
default under this Lease; or
(C) any rent incentive or reduction; rent free period or other
incentive or benefit applicable to the Lessee's occupation
of the Premises under this Lease or to any other lease
considered by the Valuer when making a determination under
this Lease.
(b) The Valuer acts as an expert and not as an arbitrator and the Valuer's
decision is final and binding. The Lessor and the Lessee may make
written submissions to the Valuer, but the Valuer is not obliged to
take account of the submissions.
3.7 ADJUSTMENT
(a) The Lessee must continue to pay the Rent payable immediately before
the relevant Review Date until the current market rent is determined
under this clause 3.
(b) The current market rent determined under this clause 3 is the Rent
payable from the relevant Review Date and the Lessor and the Lessee
must make any adjustment necessary immediately after the determination
of the current market rent.
3.8 PERCENTAGE REVIEW
If a percentage appears in Item 8(b) next to a Review Date, the Rent
payable from the Review Date is the Rent payable immediately before that
Review Date, plus an amount equal to the Rent multiplied by the percentage
appearing in Item 8(b).
4. OUTGOINGS
4.1 VARIATION OF LESSEE'S PROPORTION
If the Lessor notifies the Lessee in writing of any change to the Lessee's
Proportion, the Lessee's Proportion is amended accordingly.
4.2 PAYMENT OF LESSEE'S CONTRIBUTION
The Lessee must pay the Lessee's Contribution for each Outgoings Year:
(a) to the Lessor or as otherwise directed by the Lessor; and
(b) within 28 days of service of a notice under clause 4.3(a).
4.3 NOTICE FROM LESSOR
(a) As soon as practicable after the end of each Outgoings Year, the
Lessor must notify the Lessee in writing of (the Base Figure,) the
total of all Outgoings for that Outgoings Year and the Lessee's
Contribution.
Page 19 of 57
(b) The notice referred to in paragraph (a) is conclusive evidence of its
contents unless the Lessor or the Lessee notify the other in writing
of any manifest error within 14 days of service of the notice.
4.4 LESSOR'S ESTIMATE OF LESSEE'S CONTRIBUTION
(a) If the Lessor gives the Lessee a written estimate of the Lessee's
Contribution for an Outgoings Year, the Lessee must pay in advance on
each Rent Day an equal instalment on account of the estimated Lessee's
Contribution for the Outgoings Year.
(b) If the Lessor gives the Lessee a written adjustment of its estimate
under paragraph (a), the Lessee must pay an adjusted instalment
accordingly.
4.5 ADJUSTMENT
Within 28 days of the end of each Outgoings Year, the Lessor and Lessee
must make any adjustment necessary to take account of any difference
between the estimated and the actual Lessee's Contribution.
5. GST
5.1 PAYMENT OF GST
(a) A recipient of a taxable supply made under this Lease must pay to the
supplier, in addition to the consideration for the taxable supply, any
GST paid or payable by the supplier in respect of the taxable supply.
(b) The recipient must pay GST to the supplier:
(i) on the same day as the due date for the consideration in respect
of the relevant taxable supply; or
(ii) If there is no due date, within 28 days of receiving a written
request or a tax invoice from the supplier.
5.2 REIMBURSEMENTS
A party's obligation to reimburse another party for an amount paid or
payable to a third party (eg a party's obligation to pay another party's
legal costs) includes GST on the amount paid or payable to the third party
except to the extent that the party being reimbursed is entitled to claim
an input tax credit for that GST.
5.3 INDEMNITIES
(a) If a payment under an indemnity gives rise to a liability to pay GST,
the payer must pay, and indemnify the payee against, the amount of
that GST.
(b) If a party has an indemnity for a cost on which that party must pay
GST, the indemnity is for the cost plus all GST (except any GST for
which that party can obtain an input tax credit).
Page 20 of 57
(c) A party may recover a payment under an indemnity before it makes the
payment in respect of which the indemnity is given.
6. LESSOR'S RIGHTS AND OBLIGATIONS
6.1 QUIET ENJOYMENT
Subject to the Lessor's rights under the Lease, if the Lessee is not in
default the Lessee may occupy the Premises without interruption by the
Lessor.
6.2 COMMON AREAS
(a) The Lessor reserves control over the Common Areas and without
limitation the Lessor may:
(i) install and maintain lighting;
(ii) police the Common Areas;
(iii) change the area or location of the Car Park or other
facilities;
(iv) subject to any written agreement with the Lessee to the
contrary, restrict parking by the Lessee or the Lessee's
Agents to employee parking areas;
(v) temporarily close or block any part of the Common Areas; and
(vi) change the flow or direction of pedestrian and vehicular
traffic into, out of and around the Building.
(b) Subject to the restrictions contained in this Lease, the Lessor must
allow the Lessee and the Lessee's Agents (in common with other
persons authorised by the Lessor) to use the Common Areas for the
purposes for which the Common Areas are intended to be used.
6.3 SERVICES
(a) Without limiting the obligation of the Lessee under clause 7.2 to
keep the Premises in good repair, the Lessor must use its best
endeavours to keep the services provided to the Building operational,
but is not liable to the Lessee for any breach of this obligation due
to:
(i) the need to repair, maintain or replace any service;
(ii) the requirement of any Government Agency; or
(iii) any accident or other unforeseen event.
(b) The Lessor is entitled to use, maintain, alter or repair all services
and associated fixtures and fittings which pass through the Premises
or the Building and may enter the Premises for that purpose.
Page 21 of 57
(c) If any of the services fail to function properly for any reason:
(i) the Lessee must not terminate this Lease;
(ii) the Lessee must not make any claim for compensation or damages
against the Lessor; and
(iii) the Lessee does not have any right of abatement of Rent or of
any other amount payable under this Lease due to the failure.
6.4 LESSOR'S WORK
(a) The Lessor may carry out any works in the Building or on the Land
including, but not limited to, alterations, additions, refurbishment
and redevelopment and may in the course of any works:
(i) construct improvements on the Common Areas;
(ii) add further levels to the Building;
(iii) alter the Car Park; and
(iv) reduce the size of the Common Areas or the Car Park.
(b) The Lessor may only exercise its rights under paragraph (a) in
relation to the Premises if it can do so without causing more than
minor disruption to the Lessee. The Lessor must take reasonable steps
to minimise any disruption to the Lessee under paragraph (a).
6.5 LESSOR'S RIGHT TO ENTER PREMISES
(a) Subject to paragraph (b), the Lessor may enter the Premises together
with all necessary workmen and equipment at all reasonable times for
the following purposes, if it gives the Lessee reasonable notice:
(i) to determine the condition of the Premises or whether the Lessee
is complying with the Lease;
(ii) to exercise its rights under clauses 6.3, 6.4, 6.5 or 6.11 or
any other provision of this Lease;
(iii) to carry out any work to the Land or to any adjacent property of
the Lessor;
(iv) to enable it to comply with any law or any notice from any
Government Agency affecting the Land;
(v) to rebuild or restore the Building if it is damaged or
destroyed;
(vi) to show the Premises to prospective purchasers or mortgagees at
any time or to prospective tenants during the last 3 months of
the Term;
Page 22 of 57
(vii) to ensure that the Premises are locked and secure; and
(viii) to display its usual "for sale" notice or, during the last
three months of the Term, a "to let" notice.
(b) When exercising its rights under paragraph (a):
(i) the Lessor must take reasonable steps to minimise any
disruption to the Lessee; and
(ii) is not required to give reasonable notice or enter at a
reasonable time in the case of an emergency.
6.6 RESTRICTED ACCESS TO LAND
The Lessor may exclude any person (including the Lessee) from the Land:
(a) if required by law or for safety or security reasons; and
(b) outside the hours specified in Item 14.
6.7 DEDICATION OR EASEMENT
The Lessor may dedicate any part of the Land or grant an easement in
respect of any part of the Land, if to do so does not substantially and
permanently affect the Lessee's rights under this Lease.
6.8 RULES
(a) The Lessor may make and vary rules in relation to the use, safety,
access to, occupation and management of the Building. The current
rules appear in schedule 1.
(b) The Lessor may alter the rules by written notice to the Lessee, but
may not make any alteration which is inconsistent with the Lessee's
rights under this Lease.
(c) The Lessor is not liable for any loss or damage caused or contributed
to by its non-enforcement of the rules.
6.9 BENEFIT OF LESSEE'S OBLIGATIONS
If someone else becomes entitled to receive the Rent:
(a) that person may exercise all of the Lessor's rights under this Lease;
and
(b) the Lessee must enter into any deed reasonably required by the Lessor,
at the Lessor's cost.
Page 23 of 57
6.10 SUPERIOR INTERESTS
If any person has an interest in the Premises which is concurrent with or
superior to the Lessor's interest, the Lessee must allow that person to:
(a) exercise its right, or the Lessor's right, to enter the Premises;
(b) carry out repairs, maintenance and other work in the Premises; and
(c) exercise its rights and obligations in respect of the Premises.
6.11 LESSOR MAY PERFORM LESSEE'S OBLIGATIONS
(a) The Lessor may do anything which the Lessee should have done under
this Lease if the Lessee does not promptly do so or if, in the
Lessor's opinion, the Lessee does not do so properly.
(b) The Lessee must reimburse the Lessor on demand for any costs and
expenses incurred by the Lessor under paragraph (a).
6.12 NO EXCLUSIVE USE
The Lessor may lease or licence any other part of the Building for a
business which competes with the Lessee's business.
6.13 KEYS
If the Lessor gives the Lessee any key, access card or other opening
device to access the Building:
(a) the Lessee must not copy it without the Lessor's prior consent;
(b) the Lessee must reimburse the Lessor for any cost it incurs as a
result of the Lessee losing any opening device;
(c) the Lessee must give the opening device to current employees only,
and must keep a list of those employees and give the list to the
Lessor on request; and
(d) the Lessee must return all opening devices to the Lessor on the
expiration or termination of this Lease.
7. LESSEE'S OBLIGATIONS
7.1 GENERAL OBLIGATION
The Lessee must:
(a) (PERMITTED USE) use the Premises only for the Permitted Use;
(b) (COMPLIANCE) at its cost obtain and maintain any licence, permit,
consent or registration required to carry on the Permitted Use in the
Premises, and comply
Page 24 of 57
with every legislative and legal requirement in respect of the
Premises and the Lessee's Property;
(c) (SERVICES) pay all charges for all services relating to the Lessee's
use of the Premises including gas, electricity, telephone and any
excess water, garbage and sanitary charges;
(d) (RULES) comply with, and ensure that the Lessee's Agents comply with,
all rules made under clause 6.8;
(e) (FIRE PREVENTION) comply with all requirements of any Government
Agency or insurer in respect of the prevention or control of fires and
fire safety in the Building, including by installing further equipment
and upgrading the Lessor's Property on the Premises;
(f) (DIRECTORY) reimburse the Lessor for the cost of identifying the
Lessee on any directory on the Land and for the cost of removing the
Lessee's name at the end of this Lease;
(g) (DRILLS) comply, and ensure that the Lessee's Agents comply, with the
Lessor's requirements in respect of fire drills and emergency
evacuation;
(h) (PAYMENT TO LESSOR) make every payment to the Lessor under this Lease
without any set-off, counterclaim, withholding or deduction;
(i) (SMOKING) if requested by the Lessor, ensure that no Lessee's Agents
smoke on the Land, and must erect signs in the Premises prohibiting
smoking; and
(j) (SECURITY) keep the Premises securely locked when unoccupied, and
comply with the Lessor's directions regarding security of the
Building.
7.2 MAINTENANCE OF PREMISES
(a) The Lessee must, subject to paragraph (b):
(i) (PREMISES) keep the Premises in good condition, including
repairing and repainting and replacement of floor coverings as
required, excluding fair wear and tear and any damage caused by
fire, flood, lightning, storm, war or any act of God;
(ii) (RESTORE TO ORIGINAL CONDITION) immediately before the end of
the Term, return the Premises to the condition they were in on
the Occupation Date;
(iii) (DECORATING) 7 days before the end of the Term, paint, varnish,
paper or otherwise treat the walls, ceiling and other internal
surfaces of the Premises in the same manner as they were
finished on the Occupation Date;
(iv) (SIGNS) keep in good condition any of the Lessee's signs painted
on or attached to the exterior of the Premises or on the Land;
Page 25 of 57
(v) (REMOVE WASTE) remove all Waste from the Premises regularly,
comply with the Lessor's directions regarding refuse disposal
and must not put any refuse in bins provided for common use;
(vi) (DAMAGE) immediately repair any damage to the Premises or the
Land caused by the Lessee or the Lessee's Agents or by the
Lessee's default under this Lease;
(vii) (PLATE GLASS) immediately repair or replace all damaged plate
glass within the Premises, including interior and exterior
windows, with glass of the same or a similar quality;
(viii) (HEATING, LIGHTING AND ELECTRICAL) immediately repair or
replace any faulty or damaged heating, lighting, plumbing or
electrical equipment (including light globes and fluorescent
tubes) on the Premises;
(ix) (PESTS) keep the Premises free of pests and, if required by the
Lessor, engage a pest exterminator approved by the Lessor to
prevent or eliminate pest infestation;
(x) (CLEANING) keep the Premises, the internal surfaces of the
Premises and the Common Areas within one metre of the Premises
clean and in good condition; and
(xi) (LANDSCAPED AREAS) keep in good condition any part of the
Premises that is landscaped, keep that part of the Premises
free of weeds and, if required by the Lessor, engage a gardener
approved by the Lessor to do so;
(b) The Lessee is not obligated to do any work of a structural nature
under paragraph (a) unless the work is required because of:
(i) The Lessee's default under this Lease;
(ii) the act, neglect or default of the Lessee or the Lessee's
Agents; or
(iii) the Lessee's or the Lessee's Agents' use or occupation of the
Premises.
(c) Despite paragraph (b), the Lessee's obligation under paragraph (a) to
keep the Premises in good condition includes an obligation to repair
by way of replacement where necessary unless that repair has the
effect of upgrading the Premises to a better condition than they were
when new.
7.3 GENERAL PROHIBITIONS ON LESSEE
The Lessee must not, and must ensure that the Lessee's Agents do not:
(a) (NO DAMAGE) put anything which is likely to cause obstruction or
damage down any sink, toilet or drain;
(b) (NO ANIMALS) keep any animals or birds on the Premises;
Page 26 of 57
(c) (DANGEROUS SUBSTANCES) store or use inflammable or dangerous
substances on the Premises;
(d) (USE) allow anyone to sleep on the Premises or hold any auction, fire
or bankruptcy sale on the Premises;
(e) (LESSOR'S PROPERTY) use the Lessor's Property for anything other than
its intended use;
(f) (NO NUISANCE) cause any nuisance, disturbance or damage to the Lessor,
any other user of the Land or any user of any neighbouring land;
(g) (VEHICLES) drive or park any trade vehicle on the Land, except at
loading bays and at times specified by the Lessor;
(h) (COMMON AREAS) obstruct the Car Park, the Common Areas or access to
the Common Areas;
(i) (NO OBSTRUCTION) obstruct any air or light from entering the Premises
through any shaft or opening, and must not obstruct any air vent, duct
or skylight in the Premises or any emergency exit or Common Areas;
(j) (SERVICES) overload the services provided to the Premises, or use them
for other than their intended purpose;
(k) (HEATING) use any heating, cooling or lighting in the Premises which
is not provided or approved by the Lessor;
(l) (LIFTS) use any escalators or passenger lifts to carry goods or
equipment; and
(m) (HEAVY OBJECTS) move heavy or bulky items through the Building without
the Lessor's consent.
7.4 NOTIFICATION OF DAMAGE
The Lessee must immediately notify the Lessor of:
(a) any damage to or defect in the Land or any service or facility
provided by the Lessor on the Land, any infectious disease or pests in
the Land, and any notice from a Government Agency (other than an
account for services provided to the Premises); and
(b) any circumstances likely to cause any damage or defect described in
paragraph (a).
7.5 NO ALTERATIONS BY LESSEE
(a) The Lessee must not make any alterations or additions to the Premises
without the Lessor's prior written consent, which must not be
unreasonably withheld in respect of alterations or additions which do
not affect any structural part of the Building.
Page 27 of 57
(b) The Lessee must not decorate the Premises, or erect any sign or
antenna or install any Lessee's Property in the Premises, without the
Lessor's prior written consent, which must not be unreasonably
withheld.
(c) If requested by the Lessor, the Lessee must give the Lessor a copy of
the plans and specifications for any proposed alterations or
additions.
(d) The Lessor may approve of any proposed alterations or additions on
condition that:
(i) all work is supervised by a nominee of the Lessor;
(ii) the work is carried out by a person approved by the Lessor,
whose approval must not be unreasonably withheld;
(iii) the Lessee pays on demand all costs incurred by the Lessor in
respect of the works including its consideration of the proposed
works and their supervision (including any architect's or
building consultant's fees); and
(iv) The Lessee obtains and gives the Lessor copies of all approvals
and certificates of compliance from all relevant Government
Agencies.
7.6 LESSOR'S INTEREST IN PREMISES
The Lessee must not do anything which could prejudice the Lessor's interest
in the Premises.
7.7 COST AND RISK OF LESSEE'S OBLIGATIONS
If the Lessee is obligated to do anything under this Lease, it must do so
at its cost and at its risk.
7.8 EMERGENCY ACCESS
If any entrance to or exit from any part of the Building which is intended
for emergency use is accessed through the Premises the Lessee must:
(a) allow any person in the Building to access the Premises for that
purpose; and
(b) sign any right of way or other document required by the Lessor to
further assure this right to the Lessor.
7.9 INTEREST ON OVERDUE MONEY
(a) The Lessee and the Guarantor must pay interest on demand on each
amount that is not paid when due, from (and including) the day on
which it falls due to (but excluding) the day on which it is paid in
full, at the rate calculated in accordance with paragraph (b).
(b) Interest on an unpaid amount accrues each day at a rate equal to the
sum of the bank xxxx swap reference rate for 90 day bank bills
published in the Australian
Page 28 of 57
Financial Review on, or as near as possible to, the due date and 2%
per annum, and is capitalised (if not paid) every 7 days.
(c) If the Australian Financial Review ceases to be published the lending
indicator rate charged by a bank nominated by the Lessor is
substituted for the bank xxxx rate described in paragraph (b).
(d) Nothing in this clause affects the Lessee's obligation to pay each
amount under this Lease when it is due.
7.10 NO OVERLOADING
(a) The Lessee must not bring onto the Premises without the Lessor's
written consent any equipment or article which does or could, in the
Lessor's opinion, overload any part of the Building, damage the
Premises or disturb the efficient operation of any service on the
Land.
(b) If the Lessor gives its consent under paragraph (a):
(i) the Lessee must comply with any directions of the Lessor in
relation to the maximum weight of, and the position in which, the
equipment or article may be installed; and
(ii) The Lessee must give the Lessor reasonable notice of the arrival
of the equipment or article and must follow all directions of the
Lessor regarding its placement, installation and all related
matters.
(c) If the Lessor wishes to supervise the arrival or installation of any
equipment or article, the Lessee must:
(i) let it do so, and must follow its instructions; and
(ii) pay the Lessor's costs of supervision.
(d) The Lessee must not overload the electrical or any other services in
the Building.
(e) The Lessee must, at its cost, make good any damage caused to the
Building by the Lessee doing anything under this clause 7.10. Clause
7.5 applies to any work carried out under this clause 7.10.
7.11 BUSINESS HOURS
(a) The Lessee must conduct its business on the Premises during the hours
specified in Item 14 and may only conduct its business on the Premises
at any other time with the Lessor's consent.
(b) If the Lessor consents to the Lessee trading outside the hours
specified in Item 14 the Lessee must pay its share (as determined by
the Lessor) of the cost of keeping the Building open during that time.
Page 29 of 57
7.12 CLEANING
If the Lessor requires the Lessee to use a particular cleaning service to
clean the Premises:
(a) the Lessee must use that cleaning service for the hours stipulated by
the Lessor;
(b) the Lessee must pay the Lessor for the cleaning service for the
previous month on each Rent Day; and
(c) the Lessee must not use any other cleaning service without the
Lessor's consent.
7.13 UPGRADE OF SERVICES
If the Lessor, at the request of the Lessee, upgrades any service to the
Premises:
(a) the Lessee must pay for the upgrade, in advance; and
(b) the Lessor does not warrant the suitability or performance of the
upgraded service.
7.14 CONVENIENCES
The Lessee must:
(a) use the drains, basins, showers and toilets on the Building only for
the purpose for which they were designed;
(b) pay the cost of repairing any damage to those items which the Lessor
reasonably believes was caused by the Lessee or the Lessee's Agents;
and
(c) pay the Lessee's Proportion of the cost of repairing any damage to
those items if the Lessor does not know who caused the damage.
8. ENVIRONMENTAL ISSUES
8.1 NO REPRESENTATION
The Lessor does not warrant or represent:
(a) that the Premises are suitable for any use, or for any particular use;
(b) that there are no Environmental Aspects either affecting the Land or
arising as a result of activities on the Land;
(c) the accuracy of information about the past use of the Land before it
was owned by the Lessor; or
(d) that the Land is or is not Contaminated, or the nature or extent of
any Contamination.
Page 30 of 57
8.2 ENVIRONMENTAL OBLIGATIONS
The Lessee must:
(a) (COMPLY WITH LAWS) comply with all Environment Laws including (at its
cost) obtaining all necessary Authorisations for any activity on the
Premises;
(b) (POLLUTION CONTROL EQUIPMENT) properly install in the Premises all
pollution control equipment that is required by an Environmental Law
to be installed as a consequence of the Lessee's use or occupation of
the Premises; and
(c) (OPERATION OF EQUIPMENT) operate the pollution control equipment and
all industrial plant and equipment in a proper and efficient manner
and maintain it in good working order;
(d) (NOT CONTAMINATE) not Contaminate the Land or any adjacent land;
(e) (NOT POLLUTE) not cause any Pollution of or from the Premises;
(f) (NO DANGEROUS MATERIALS) not use keep or handle on the Premises any
Dangerous Good or Hazardous Material without the prior consent of the
Lessor;
(g) (INFORMATION) provide to the Lessor on demand any information held or
controlled by the Lessee required by the Lessor relating to any:
(i) Contamination; or
(ii) Environmental Aspect,
affecting the Land at any time;
(h) (ACCESS) allow the Lessor and the Lessor's employees, officers,
contractors and agents access to the Premises to carry out
environmental audits, assessments and investigations of any part of
the Premises or the Land and provide to the Lessor from time to time
all information about the Environmental Aspects of the activities
carried out on the Premises as may be requested by the Lessor;
(i) (COMPLIANCE) at its sole cost and expense, promptly comply with any
direction from the Lessor to implement any recommendation of an
environmental audit, assessment, investigation or report in respect of
the Premises or any business conducted from the Premises (whether or
not the recommendation is required in order to comply with an
Environmental Law);
(j) (NOTIFY LESSOR) promptly notify the Lessor if:
(i) it becomes aware, or as soon as a complaint is made, of a breach
or alleged breach of an Environmental Law in respect of the Land
or any activity carried out on the Land;
(ii) an Environmental Notice is served on the Lessee;
(iii) the Land becomes Contaminated in any way [in a material way];
Page 31 of 57
(iv) any unlawful Pollution is emitted or discharged on or from the
Land; or
(v) the Lessee is in breach of any of its obligations under this
clause 8.2; and
(k) (REMEDIATION) do whatever is necessary or whatever the Lessor
reasonably requires, at the Lessee's cost, to:
(i) remediate any Contamination of or from the Premises (if the
Contamination first occurred or was first caused after the
Occupation Date);
(ii) clean up, manage or xxxxx any Pollution occurring on or from
the Premises (if the Pollution first occurred or was first
caused after the Occupation Date);
(iii) remedy any breach of an Environmental Law that occurs on or
affects the Premises as soon as it occurs (including by
restoring the Premises to a state as close as practicable to
the state it was in before that breach);
(iv) comply with every Environmental Notice in so far that it
relates to the Premises; and
(v) remedy any breach of this clause 8.2.
8.3 INDEMNITY AND RELEASE
(a) In addition to, and without derogating from any other right, power or
privilege, of the Lessor, or from any liability, duty or obligation
of the Lessee however arising, the Lessee agrees:
(i) to indemnify the Lessor and its officers, employees and
consultants against all Costs and Claims arising from (or in
respect of) any Environmental Aspect of the activities carried
out by or on behalf of the Lessee on the Premises; and
(ii) to pay the Lessor on demand the amount of any Cost or Claim,
arising from or incurred in connection with any matter in
paragraph (i).
(b) The provisions of this Lease govern all rights, powers, privileges,
liabilities, duties and obligations as between the parties in respect
of:
(i) Contamination of the Premises; and
(ii) any Environmental Aspect of activities carried out on the
Premises.
(c) To the extent permitted by law, the Lessee releases the Lessor from
any Costs and Claims arising from or in respect of any Contamination
of the Premises or any Environmental Aspect of any activity carried
out on the Premises, except as expressly provided for in this Lease
or arising from the express provisions of this Lease.
Page 32 of 57
9. INSURANCE, RISK AND INDEMNITIES
9.1 PUBLIC LIABILITY
The Lessee must take out and maintain a public liability insurance policy
in respect of the Premises and the business it carries on in the Premises:
(a) under which the maximum amount payable for a single claim is at least
the amount specified in Item 11, or any other amount reasonably
required by the Lessor;
(b) which contains all provisions that are normally contained in public
liability policies and any other provisions reasonably required by the
Lessor;
(c) which, without limiting the rest of this clause 9, covers death and
injury to any person and damage to property of any person sustained
when that person is using or entering or near any entrance, passage or
stairway to or in the Premises; and
(d) which expressly refers to and covers all of the Lessee's obligations
under this Lease, including the obligation to indemnify the Lessor.
9.2 WORKERS COMPENSATION
The Lessee must take out and maintain an insurance policy in respect of the
Lessee's business and each person employed by the Lessee in the business
conducted on the Premises:
(a) for the full amount of the Lessee's liability under any applicable
workers compensation legislation; and
(b) for the full amount of the Lessee's potential legal liability
independently of that legislation.
9.3 CONTENTS
The Lessee must take out and maintain insurance for the contents of the
Premises against damage, destruction and any other risk for their full
replacement value or on a reinstatement basis, as required by the Lessor.
9.4 PLATE GLASS
The Lessee must take out and maintain an insurance policy for all plate
glass in the Premises and all exterior windows of the Premises:
(a) for their full insurable value; and
(b) against breakage from any cause and against any other risk reasonably
required by the Lessor.
Page 33 of 57
9.5 PROCEEDS OF INSURANCE
If any loss or damage occurs which is covered by any insurance the Lessee
is required to maintain under this Lease the Lessee must:
(a) apply for the insurance proceeds immediately; and
(b) use the proceeds to restore, replace, repair or reinstate the loss or
damage and must supplement the proceeds with the Lessee's own money to
the extent that the proceeds are insufficient.
9.6 POLICIES
The Lessee must do the following in respect of each policy that it is
required to maintain under this Lease:
(a) take out the policy with an insurance company approved by the Lessor,
whose approval must not be unreasonably withheld;
(b) if requested by the Lessor, give the Lessor a copy of the policy and a
certificate of currency for the policy; and
(c) ensure that the policy contains a requirement that the insurer will
not cancel or change the insurance without first giving the Lessor 10
days prior written notice.
9.7 MAINTAIN INSURANCE
(a) The Lessee must not do anything without the Lessor's prior written
approval which could:
(i) increase the premium payable on any insurance policy taken out
by the Lessor; or
(ii) affect the Lessor's rights under any insurance policy or make the
policy invalid or able to be cancelled.
(b) The Lessee must pay any extra premium payable by the Lessor on
account of extra risk caused by the Lessee's use or occupation of the
Premises.
9.8 LESSEE'S RISK
The Lessee occupies the Premises at its own risk.
9.9 RELEASE OF LESSOR
To the extent permitted by law, the Lessee releases the Lessor from any
claim, action, damage, loss, liability, cost or expense which the Lessee
incurs or is liable for in connection with any damage, loss, injury or
death to or of any person or property on or near the Land except to the
extent caused by the Lessor's negligent act or omission.
Page 34 of 57
9.10 INDEMNITY
The Lessee indemnifies the Lessor against any claim, action, damage, loss,
liability, cost or expense which the Lessor incurs or is liable for in
connection with:
(a) any damage, loss, injury or death, caused or contributed to by the
Lessee or Lessee's Agents;
(b) any default by the Lessee under this Lease;
(c) the use or occupation of the Premises by the Lessee or Lessee's
Agents;
(d) any service not working properly, being unavailable or being
interrupted, or the misuse of any service provided to the Premises,
unless caused by the negligence of the Lessor; and
(e) the escape of any water from the Premises caused or contributed to by
the Lessee or Lessee's Agents.
9.11 CONTINUING INDEMNITY
Each indemnity of the Lessee contained in this Lease is:
(a) a continuing obligation of the Lessee and remains in full force and
effect after the termination of this Lease; and
(b) a separate and independent obligation of the Lessee.
10. DAMAGE OR RESUMPTION
10.1 DAMAGE TO PREMISES OR BUILDING
Subject to clause 10.2, this clause 10.1 applies if the Premises or the
Building are damaged or destroyed:
(a) (ABATEMENT) if the Premises:
(i) cannot be used by the Lessee, the Lessee is not liable to pay
Rent or the Lessee's Contribution for the period that the
Premises cannot be used; or
(ii) are useable by the Lessee, but the useability is diminished
because of the damage or destruction, the Lessee's liability to
pay Rent and the Lessee's Contribution is reduced in proportion
to the reduction in useability;
(b) (NO REPAIR) if the Lessor gives the Lessee written notice that the
Lessor considers that, in its absolute discretion, it is
impracticable or undesirable to repair the damage, then either the
Lessor or the Lessee may terminate this Lease by giving at least 7
days' notice to the other and no compensation is payable in respect
of that termination; and
Page 35 of 37
(c) (REQUEST TO REPAIR) within 14 days of the damage occurring the Lessee
may request the Lessor in writing to repair the damage and:
(i) if the Lessor does not notify the Lessee within 21 days of
receiving the Lessee's request that it intends to repair the
damage; or
(ii) the Lessor notifies the Lessee that it intends to repair the
damage but does not do so within a reasonable time,
the Lessee may terminate this Lease by giving at least 30 days
written notice to the Lessor.
10.2 DAMAGE CAUSED BY LESSEE
If the damage or destruction referred to in clause 10.1 is caused by the
Lessee or the Lessee's Agents:
(a) clauses 10.1(a) and 10.1(c) do not apply; and
(b) the Lessee can not terminate this Lease under clause 10.1(b).
10.3 LESSOR'S RIGHTS NOT AFFECTED
(a) Nothing in this clause 10 affects any rights the Lessor may have if:
(i) any damage or destruction is caused or contributed to by; or
(ii) any right under an insurance policy in connection with the Land
is prejudiced or a policy is cancelled or payment of a premium
or a claim is refused by the insurer because of,
the act, negligence or default of the Lessee or the Lessee's Agents.
(b) Nothing in this clause 10 obliges the Lessor to restore or reinstate
the Premises or the Building.
10.4 RESUMPTION
This Lease terminates if the Premises are resumed by any Government
Agency. The Lessor is not liable to the Lessee in respect of the
termination.
10.5 DISPUTE
(a) If any dispute arises under clauses 10.1 or 10.2 either or both
parties may request the President of the Australian Property
Institute Inc - NSW Division to appoint a Valuer to determine the
dispute and the proportion of its costs that each party must bear.
(b) The Valuer acts as an expert and not as an arbitrator and the
Valuer's decision is final and binding.
Page 36 of 57
11. ASSIGNMENT,
SUBLEASE AND MORTGAGE
11.1 RESTRICTION ON ASSIGNMENT AND OTHER DEALINGS
The Lessee must not do any of the following unless it first complies with
the applicable provisions in the rest of this clause 11:
(a) assign this Lease;
(b) grant a
sublease of the Premises;
(c) grant any licence of the Premises; or
(d) mortgage, charge or otherwise encumber this Lease or the Lessee's
Property.
11.2 GENERAL REQUIREMENTS
The Lessee must not do anything specified in clause 11.1 unless:
(a) (NOTICE) the Lessee has given the Lessor at least 1 month's notice of
its desire to do that thing, together with details of the proposed
transaction, details of the parties, a copy of the proposed
documentation and all other relevant information;
(b) (NO DEFAULT) the Lessee is not in default under this Lease, unless the
default is waived by the Lessor;
(c) (COSTS) the Lessee complies with clause 15.2 in relation to the
proposed transaction and pays to the Lessor on demand the Lessor's
reasonable estimate of the costs and expenses before the Lessor makes
any enquiries in relation to the proposed transaction, and whether or
not the Lessor consents to it;
(d) (REPUTATION) the Lessee establishes to the Lessor's satisfaction that
any proposed assignee, sublessee or licensee:
(i) is respectable and financially sound; and
(ii) has experience and a good reputation in conducting the same
business as the Permitted Use;
(e) (SECURITY) the Lessor is given any guarantee, indemnity or other
security it requires in relation to the proposed transaction, prepared
and stamped by the Lessor's lawyer at the Lessee's cost, and any
Guarantor acknowledges its continuing obligations under this Lease.
Page 37 of 57
11.3 REQUIREMENTS FOR ASSIGNMENT
If the Lessee proposes to assign the Lease:
(a) the Lessee and assignee must enter into a deed in the form reasonably
required by the Lessor under which (among other things):
(i) the assignee agrees to perform all of the Lessee's express and
implied obligations under this Lease, including the obligation to
indemnify the Lessor;
(ii) the Lessee releases the Lessor from all its obligations under
this Lease;
(iii) the Lessee acknowledges its continuing obligations under this
Lease; and
(b) the Lessee must give a signed and stamped transfer of this Lease
signed by the proposed assignee to the Lessor's lawyer.
11.4 REQUIREMENTS FOR
SUBLEASE OR LICENCE
If the Lessee proposes to grant a sublease or licence of the Premises the
Lessee and sublessee or licensee must enter into a deed in the form
reasonably required by the Lessor under which (among other things):
(a) the Lessee acknowledges its continuing obligations under this Lease;
(b) they agree that the sublease or licence terminates immediately on
termination of this Lease; and
(c) the sublessee or licensee must not grant a sublease or licence,
transfer its sublease or licence or part with or share possession of
the Premises.
11.5 CHANGE IN CONTROL OF LESSEE
If Lessee is a corporation and there is a Change of Control, the Lessee
must comply with clauses 11.2 and 11.3 as if the Lessee proposes to assign
this Lease.
11.6 MORTGAGE OR CHARGE
The Lessee may only mortgage, charge or otherwise encumber this Lease or
the Lessee's Property with the prior consent of the Lessor.
12. TERMINATION
12.1 EVENTS OF DEFAULT
Each of the following is a default by the Lessee under this Lease:
(a) (NON-PAYMENT OF RENT) if the Lessee does not pay the Rent, within 14
days of the due date for payment, whether or not demanded by the
Lessor;
Page 38 of 57
(b) (NON-PAYMENT OF OTHER AMOUNTS) if the Lessee does not pay the
Lessee's Contribution or any amount that is due and payable by it
under this Lease within 14 days of its due date, whether or not
demanded by the Lessor;
(c) (ESSENTIAL TERMS) if the Lessee does not comply with an essential
term of this Lease;
(d) (REPUDIATION) if the Lessee repudiates its obligations under this
Lease;
(e) (OTHER OBLIGATIONS) if the Lessee does not comply with any other
express or implied obligation under this Lease; and
(f) (INSOLVENCY EVENT) if an Insolvency Event occurs in respect of the
Lessee or the Guarantor or, if either of them is a company, any of
its subsidiaries.
12.2 LESSOR'S TERMINATION AFTER DEFAULT
The Lessor may terminate this Lease after the Lessee defaults in
accordance with clause 12.1 and after the Lessor has served notice of
breach of covenant (if required by law) by:
(a) re-entering and taking possession of the Premises, using reasonable
force to secure possession;
(b) serving written notice of termination on the Lessee; or
(c) instituting proceedings for possession of the Premises against the
Lessee.
12.3 ESSENTIAL TERMS
(a) Each of the following obligations of the Lessee under this Lease is
an essential term of this Lease:
(i) to pay Rent under clause 3.1;
(ii) to pay the Lessee's Contribution-under clause 4;
(iii) to pay GST under clause 5;
(iv) regarding use of the Premises under clause 7.1(a);
(v) to obtain all consents to carry on the Permitted Use under
clause 7.1(b);
(vi) to comply with all rules under 7.1(d);
(vii) to maintain the Premises under clause 7.2;
(viii) to comply with all Environmental Laws under clause 8.2;
(ix) to take out and maintain insurance under clause 9; and
(x) regarding assignment of this Lease, or anything else under
clause 11.
Page 39 of 57
(b) Any other obligation of the Lessee under this Lease may also be
an essential term.
12.4 BREACH OF ESSENTIAL TERM
The Lessor may treat the Lessee's breach of an essential term as a
repudiation of this Lease and may terminate this Lease for breach of
the essential term and for repudiation. The Lessor is then entitled to
immediate possession of the Premises.
12.5 LESSOR'S ENTITLEMENT TO DAMAGES
(a) If the Lessee:
(i) repudiates this Lease;
(ii) breaches an essential term under this Lease; or
(iii) defaults under this Lease in any other way,
the Lessee must compensate the Lessor for the loss or damage
suffered by the Lessor as a consequence of the repudiation,
breach or other default.
(b) The compensation payable by the Lessee under paragraph (a)
extends to the loss or damage suffered by the Lessor during the
Term, including the periods before and after any termination of
this Lease.
(c) The Lessee's obligation to compensate the Lessor for loss or
damage is not affected if:
(i) the Lessee abandons or vacates the Premises;
(ii) the Lessor elects to re-enter or to terminate this Lease;
(iii) the Lessor accepts the Lessee's repudiation; or
(iv) the parties' conduct constitutes a surrender by
operation of law.
12.6 INSTITUTING PROCEEDINGS
The Lessor may institute legal proceedings claiming damages against
the Lessee in respect of the Term:
(a) including the periods before and after the Lessee vacates
the Premises;
(b) including the periods before and after the abandonment,
termination, repudiation, acceptance of repudiation or surrender
by operation of law referred to in clause 12.5(c); and
(c) whether the proceedings are instituted before or after the
conduct referred to in clause 12.5(c).
Page 40 of 57
12.7 LESSOR'S OTHER RIGHTS
The Lessor's right to compensation for loss or damage is in addition to
its right to:
(a) recover Rent and the Lessee's Contribution until the Terminating
Date or termination of this Lease;
(b) receive interest under clause 7.9; and
(c) recover costs and expenses under clause 15.2.
12.8 LESSEE'S OBLIGATIONS ON TERMINATION
The Lessee must do the following at its cost before the earlier of the
Terminating Date and the termination of this Lease:
(a) remove all rubbish and the Lessee's Property from the Premises,
unless the Lessor agrees or directs otherwise, and make good any
damage caused by removal;
(b) give vacant possession of the Premises and return the Premises to
the equivalent standard as existed prior to the Occupation Date;
(c) remove any signs, advertisements, notices or boardings erected or
painted by it on the Building;
(d) hand over all keys to the Premises and the Building, including
security access devices; and
(e) immediately repair any damage caused to the Building in the course
of complying with this clause.
12.9 STORAGE OF LESSEE'S PROPERTY
(a) If the Lessee does not remove the Lessee's Property or remedy any
damage under clause 12.8, the Lessor may do so and store the
Lessee's Property at the Lessee's cost.
(b) If the Lessee does not remove any Lessee's Property from the
Premises or from the place where it is stored by the Lessor within
seven days of being asked to do so by the Lessor, that Lessee's
Property becomes the property of the Lessor if the Lessor so elects.
12.10 DIRECTORY
The Lessee must reimburse the Lessor for the cost incurred by the Lessor
in removing the Lessee's name from any directory or electronic display
system in the Building at the end of this Lease.
Page 41 of 57
13. POWER OF ATTORNEY
13.1 APPOINTMENT OF ATTORNEY
The Lessee irrevocably appoints the Lessor and each officer (as defined in
the Corporations Act) of the Lessor severally as its attorney to:
(a) complete this Lease;
(b) do anything that the Lessee must or may do under this Lease if the
Lessor considers that the Lessee has not done it or has not done it
properly;
(c) do anything that the Attorney considers is necessary or desirable to
remedy any breach of this Lease by the Lessee of this Lease;
(d) exercise any right, power, authority, discretion or remedy of the
Lessee under this Lease, after the Lessee has breached this Lease; and
(e) execute a transfer or surrender of this Lease, after the Lessee has
breached this Lease.
Each Attorney may appoint and remove substitutes, and may delegate its
powers (including this power of delegation) and revoke any delegation.
13.2 GENERAL
(a) An Attorney may do anything contemplated by this clause even if the
Attorney is affected by an actual or potential conflict of interest
or duty, or might benefit from it.
(b) An Attorney may do anything contemplated by this clause in its name,
in the name of the Lessee or in the name of both of them.
(c) The Lessee must ratify anything done by an Attorney under this clause.
(d) The Lessee gives the power of Attorney in this clause:
(i) to secure performance by the Lessee of its obligations to the
Lessor under this Lease and any property interest of the Lessor
under this Lease; and
(ii) for valuable consideration, receipt of which is acknowledged by
the Lessee.
13.3 PROTECTED POWER
If the Lessee is a natural person, the power of attorney is given with the
intention that it continues even if the Lessee suffers loss of capacity
through unsoundness of mind after signing this Lease.
Page 42 of 57
14. NOTICES
14.1 HOW TO GIVE A NOTICE
A notice, consent or other communication under this Lease is only effective
if it is:
(a) in writing, signed by or on behalf of the person giving it;
(b) addressed to the person to whom it is to be given; and
(c) either:
(i) delivered or sent by pre-paid mail (by airmail, if the addressee
is overseas) to that person's address; or
(ii) sent by fax to that person's fax number and the machine from
which it is sent produces a report that states that it was sent
in full.
14.2 WHEN A NOTICE IS GIVEN
A notice, consent or other communication that complies with this clause is
regarded as given and received:
(a) if it is delivered or sent by fax:
(i) by 5:00 pm (local time in the place of receipt) on a Business Day
- on that day; or
(ii) after 5:00 pm (local time in the place of receipt) on a Business
Day, or on a day that is not a Business Day - on the next
Business Day; and
(b) if it is sent by mail:
(i) within Australia - 7 Business Days after posting; or
(ii) to or from a place outside Australia - 14 Business Days after
posting.
14.3 ADDRESS FOR NOTICES
A person's address and fax number are those set out below that person's
name in the relevant Item in the Reference Schedule, or as the person
notifies the sender.
15. GENERAL
15.1 GOVERNING LAW
This Lease is governed by the law in force in
New South Wales.
Page 43 of 57
15.2 LIABILITY FOR EXPENSES
The Lessee must indemnify the Lessor against, and must pay to the Lessor
on demand the amount of, all costs and expenses incurred in connection
with:
(a) the negotiation, preparation, execution, stamping and registration of
this Lease and any further lease;
(b) any assignment, sublease, licence, mortgage, charge or other
encumbrance referred to in clause 11;
(c) any default by the Lessee or the Lessee's Agents under this Lease and
the enforcement or protection, or attempted enforcement or protection
of any right under this Lease;
(d) any transactions that this Lease contemplates; and
(e) any amendment to, or waiver of or under, this Lease; and
(f) any request for the consent or approval of the Lessor or its
mortgagee,
including legal expenses on a full indemnity basis, administration costs
of the Lessor and expenses incurred in engaging consultants.
15.3 GIVING EFFECT TO THIS LEASE
Each party must do anything (including execute any document), and must
ensure that its employees and agents do anything (including execute any
document), that any other party may reasonably require to give full effect
to this Lease.
15.4 WAIVER OF RIGHTS
(a) A right may only be waived in writing, signed by the party giving the
waiver, and:
(i) no other conduct of a party (including a failure to exercise,
or delay in exercising, the right) operates as a waiver of the
right or otherwise prevents the exercise of the right;
(ii) a waiver of a right on one or more occasions does not operate
as a waiver of that right if it arises again; and
(iii) the exercise of a right does not prevent any further exercise
of that right or of any other right.
(b) The Lessor's acceptance of any arrears or late payment of Rent, the
Lessee's Contribution or other money under this Lease does not
operate as a waiver of:
(i) the essentiality of the Lessee's obligation to pay Rent, the
Lessee's Contribution or other money in respect of those
arrears or the late payment; or
Page 44 of 57
(ii) the Lessee's continuing obligation to pay Rent, the Lessee's
Contribution or other money during the Term.
15.5 OPERATION OF THIS LEASE
(a) This Lease contains the entire agreement between the parties about its
subject matter. Any previous understanding, agreement, representation
or warranty relating to that subject matter is replaced by this Lease
and has no further effect.
(b) Any right that a person may have under this Lease is in addition to,
and does not replace or limit, any other right that the person may
have.
(c) Any provision of this Lease which is unenforceable or partly
unenforceable is, where possible, to be severed to the extent
necessary to make this Lease enforceable, unless this would materially
change the intended effect of this Lease.
15.6 OPERATION OF INDEMNITIES
(a) Each indemnity of the Lessee in this Lease survives the expiry or
termination of this Lease.
(b) The Lessor may recover a payment under an indemnity in this Lease
before it makes the payment in respect of which the indemnity is
given.
(c) If payment under an indemnity gives rise to a liability to pay GST,
the payer must pay, and indemnify the payee against, the amount of
that GST.
(d) If a party has an indemnity for a cost on which that party must pay
GST, the indemnity is for the cost plus all GST (except any GST for
which that party can obtain an input tax credit).
15.7 LESSOR'S CONSENT
If the Lessor's consent is required for anything under this Lease, that
consent:
(a) must be in writing;
(b) may be given, either conditionally or unconditionally, or withheld, in
the Lessor's absolute discretion,
unless this Lease states otherwise.
15.8 NO MERGER
The provisions of this Lease do not merge on termination.
15.9 EXCLUSION OF CONTRARY LEGISLATION
Any legislation that adversely affects an obligation of the Lessee, or the
exercise by the Lessor of a right or remedy, under or relating to this
Lease is excluded to the full extent permitted by law.
Page 45 of 57
15.10 COUNTERPARTS
This Lease may be executed in counterparts.
15.11 COMPLIANCE
Each party must comply with all applicable statutes, regulations and
by-laws relating to health, safety, noise and other standards with respect
to the Premises.
15.12 EXCLUSION OF STATUTORY PROVISIONS
The covenants, powers and provisions implied in leases by sections 84,
84A, 85 and 86 of the Conveyancing Act 1919 (NSW) do not apply to this
Lease.
15.13 MITIGATION
Each party must take all reasonable steps to minimise any loss or damage
resulting from a breach of this Lease by the other party.
15.14 PAYMENT AFTER NOTICE
(a) If either party gives a notice terminating this Lease, or the Lessor
gives a notice demanding immediate possession of the Premises, the
Lessor's acceptance of, or demand for, Rent or any other money:
(i) is not evidence of a new lease for the Premises; and
(ii) does not alter the legal effect of the notice.
(b) If the Lessee continues to occupy the Premises unlawfully after
termination of this Lease the Lessee must pay (by weekly
instalments) an amount equal to the total of the Rent plus other
money payable by the Lessee to the Lessor under this Lease as
compensation for its occupation of the Premises.
15.15 LESSEE'S WARRANTY
The Lessee warrants that it has not been induced to enter into this Lease
by any express or implied statement, warranty or representation:
(a) whether oral, written or otherwise;
(b) made by or on behalf of the Lessor in respect of the Land or the
Premises or anything relating to, or which could have an effect on,
the Land or the Premises including but not limited to:
(i) the fitness or suitability of the Premises for any purpose;
(ii) any fixtures, facilities or amenities on the Land; or
(iii) the conduct of any other business in the Building.
Page 46 of 57
16. GUARANTEE AND INDEMNITY
16.1 DEFINITIONS IN THIS CLAUSE
In this clause unless the contrary intention appears:
"BANKRUPTCY" means:
(a) in relation to a corporation, being in liquidation on the grounds of
its insolvency;
(b) in relation to an individual, being an insolvent under administration
(as defined in the Corporations Act); and
(c) anything analogous or having a similar effect under the law of any
relevant jurisdiction.
"GUARANTOR'S OBLIGATIONS" means all obligations of the Guarantor (whether
present, future, actual or contingent) under this Lease.
"LEASE" includes a variation, assignment, replacement, extension or renewal
of, or holding over under, this Lease.
"LESSEE'S OBLIGATIONS" means all obligations of the Lessee (whether
present, future, actual or contingent) under this Lease.
16.2 GUARANTEE
In consideration of the Lessor entering into this Lease at the Guarantor's
request, the Guarantor unconditionally and irrevocably guarantees to the
Lessor the punctual performance of all the Lessee's Obligations by the
Lessee.
16.3 INDEMNITY
(a) The Guarantor indemnifies the Lessor against any claim, loss,
liability or expense incurred by the Lessor:
(i) which is caused or contributed to by the Lessee's failure to
perform any of the Lessee's Obligations;
(ii) because this Lease is void, voidable or otherwise unenforceable;
(iii) because this Lease terminates, other than by agreement between
the Lessor and Lessee or the expiration of this Lease;
(iv) because this Lease is disclaimed by a liquidator or trustee in
bankruptcy;
(v) because any money payable by the Lessee under this Lease is
irrecoverable or refundable; or
(vi) because of the Bankruptcy of the Lessee.
Page 47 of 57
(b) The Guarantor must pay on demand any money owing to the Lessor under
this indemnity.
(c) The Guarantor's obligations under this clause 16.3 are separate and
independent from its obligations under clause 16.2.
16.4 PROTECTION AND RIGHTS OF LESSOR
(a) The Guarantor must not:
(i) exercise its right to be subrogated to the Lessor's rights
against the Lessee or any other surety or any security of the
Lessor;
(ii) exercise any right as surety in competition with the Lessor; or
(iii) prove in the Bankruptcy of:
(A) the Lessee; or
(B) any other surety for the Lessee's Obligations, in
competition with the Lessor.
(b) The Guarantor must pay the Lessor on written demand by the Lessor all
expenses incurred by the Lessor in respect of the Lessor's exercise or
attempted exercise of any right under this clause 16.
(c) If the Lessor disposes of the benefit of this Lease, the disponee
receives the benefit of the Guarantor's obligations under this clause
16.
(d) The Guarantor's Obligations are continuing obligations and are
irrevocable and unconditional.
(e) The Guarantor's Obligations are not affected by anything which might,
but for this clause 16.4(e), end or limit the Guarantor's Obligations
including, but not limited to, the following:
(i) this Lease not being registered;
(ii) a sub-lease of the Premies;
(iii) any release, extension of time for payment or other indulgence
granted to the Lessee or any other surety of the Lessee's
Obligations;
(iv) any release or impairment of or defect in any security for the
Lessee's Obligations or any obligation of any other surety of
the Lessee's Obligations;
(v) any act or omission by the Lessor which prejudices the
Guarantor;
(vi) the death or legal disability of the Guarantor;
Page 48 of 57
(vii) any Guarantor not executing or otherwise not being bound by
this Lease or any other guarantee of or security for the
Lessee's Obligations contemplated by the Lessor, Lessee or
Guarantor; or
(viii) anything which may end or limit the Guarantor's recourse to
any person or property for the recovery of moneys paid by the
Guarantor under this Lease.
(f) The Guarantor's Obligations may be enforced against the Guarantor
without the Lessor being required to first exercise any right against
the Lessee or enforce any security for the Lessee's Obligations.
(g) If any transaction or payment relating to the Lessee's Obligations is
void, voidable, unenforceable or refundable:
(i) the Guarantor's Obligations are the same as if the transaction
or payment was not void, voidable, unenforceable or
refundable; and
(ii) the Guarantor must immediately do everything required by the
Lessor to restore to the Lessor the benefit of the Guarantor's
liability under this Lease which existed immediately before
the transaction or payment and it irrevocably authorises the
Lessor to do any such thing on its behalf.
Any dispute settlement, certificate, determination, judgment, order
or award which is binding on the Lessee is also binding on the
Guarantor.
17. OPTION TO RENEW
17.1 GRANT OF NEW LEASE
If an Option Term is specified in Item 13(a) the Lessor must grant to the
Lessee, at the Lessee's cost, a new lease of the Premises for that Option
Term if:
(a) the Lessee gives the Lessor written notice during the Option Exercise
Period that the Lessee wants a lease of the Premises for the Option
Term; and
(b) the Lessee is not in default under this Lease on the date of the
notice or on the Terminating Date.
17.2 TERMS OF NEW LEASE
The new lease contains the same terms and conditions as this Lease except
that:
(a) (RENT) the Rent is the Rent payable on the Terminating Date, subject
to any review provided for in this Lease;
(b) (TERM) the Term, Commencing Date and Terminating Date specified in
Items 12(a), (b) and (c) replace those in Item 6;
(c) (REVIEWS) the Review Dates and types of reviews specified in Item 8
for the Term are replaced with those for the First Option;
Page 49 of 57
(d) (PUBLIC LIABILITY INSURANCE) the amount specified in Item 11 is
replaced with the amount applicable on the last day of the Term or any
other amount the Lessor reasonably requires;
(e) (COVER PAGE) any necessary changes are made to the term details on the
cover page;
(f) (VARIATIONS) the new lease includes any variations made to this Lease
during the Term;
(g) (CHANGE IN THE LAW) the new lease includes any term which the Lessor
reasonably requires due to any change in the law;
(h) (1 OPTION) if Item 13 of this Lease contains details for only the
First Option:
(i) clause 17 is deleted; and
(ii) the details for the First Option are deleted in Items 8 and 13
and the words "not applicable" are inserted there;
18. SECURITY DEPOSIT AND BANK GUARANTEE
18.1 SECURITY DEPOSIT
(a) The Lessee must deposit with the Lessor the amount specified in Item
16 as a security deposit to be held by the Lessor and applied towards
remedying any default by the Lessee under this Lease.
(b) If the Lessor applies any part of the security deposit and this Lease
is not terminated, the Lessee must pay the amount appropriated to the
Lessor to maintain the security deposit.
(c) The Lessee must deposit an additional amount as security deposit on
each Review Date to maintain the security deposit as equal to the
amount specified in Item 16.
(d) Within 14 days of the Lessor receiving a written request from the
Lessee after the termination of this Lease, the Lessor must refund to
the Lessee that part of the security deposit which has not been
appropriated by the Lessor under this clause 18.1.
(e) If the Lessor (the "TRANSFEROR") transfers its interest in the
Premises and transfers the security deposit to the transferee, the
transferor is released from all obligations to the Lessee in relation
to the security deposit.
18.2 BANK GUARANTEE
(a) If an amount is specified in Item 15, the Lessee must give a bank
guarantee to the Lessor before the Commencing Date. The bank guarantee
must:
(i) be issued by a bank approved by the Lessor;
Page 50 of 57
(ii) contain an unconditional undertaking to pay the Lessor on
demand, and any other terms required by the Lessor;
(iii) subject to paragraph (b), be for the amount specified in Item
15; and
(iv) not expire earlier than six months after the Terminating Date.
(b) If the Rent increases, the Lessee must give the Lessor an additional
or replacement guarantee so that the amount specified in Item 15 is
guaranteed.
(c) If the Lessee defaults under this Lease the Lessor may call on the
bank guarantee without notice to the Lessee, and apply the proceeds
towards remedying the default.
(d) If the Lessor has called on the bank guarantee and, after the Lessee's
default has been remedied, there are surplus funds held by the Lessor,
the Lessor may hold that surplus as a security deposit until the
Lessee replaces the bank guarantee.
(e) If the Lessor (the "TRANSFEROR") transfers its interest in the
Premises and hands over the bank guarantee to the transferee, the
transferor is released from all obligations to the Lessee in relation
to the bank guarantee. If requested by the transferee, the Lessee must
promptly give to the transferee a replacement bank guarantee in favour
of the transferee. If the Lessee does not provide the replacement bank
guarantee, the transferor may make demand under the bank guarantee and
hand over the proceeds to the transferee to hold as a security deposit
instead of the bank guarantee until the Lessee provides the
replacement bank guarantee to the transferee.
19. CAR PARK LICENCE
19.1 GRANT
The Lessor grants to the Lessee an non-exclusive licence for the term to
park 12 cars in the Common Areas in the spaces designated by the Lessor
from time to time.
19.2 TERMS OF LICENCE
The Lessee acknowledges and agrees that the provisions of this Lease apply
to the area licensed under clause 19.1 as if they form part of the
Premises.
20. COMMON AREA LICENCE
20.1 GRANT
The Lessor grants to the Lessee an non-exclusive licence to install an
above ground diesel generator in the Licensed Area for the Term.
20.2 TERMS OF LICENCE
The Lessee acknowledges and agrees that the provisions of this Lease apply
to the Licensed Area as if they form part of the Premises.
Page 51 of 57
21. LESSEE'S WORKS
21.1 On or before the 15 January 2003, the Lessee must construct an
intertenancy fence in the existing warehouse to separate the Premises from
the neighbouring tenancy.
21.2 The Lessor grants the Lessee a non-exclusive licence of the Works Licensed
Area for the period reasonably required to complete the Lessee's Works.
21.3 The Lessee acknowledges and agrees that the provisions of this Lease apply
to the Works Licensed Area as if they form part of the Premises.
22. COMPLETION OF LEASE
22.1 On completion of construction of the intertenancy fence in accordance with
clause 21.1, the Lessor must procure the carrying out of a survey of the
Premises (at the Lessee's cost) to determine the Lettable Area.
22.2 If the Lettable Area of the Premises is less than 658.5 square metres or
greater than 678.5 square metres then the Lessor and the Lessee agree that
the Rent for inclusion at Item 7 will be replaced with the amount
calculated in accordance with the following formula:
Rent = $122,335 + (Lettable Area of warehouse component of Premises x $150)
+ (Lettable Area of Premises x $25)
22.3 If the Rent is increased pursuant to clause 22.2, the Lessee must, within
14 days of the calculation, pay to the Lessor all additional Rent owing
from the Commencing Date.
22.4 If the Rent is decreased pursuant to clause 22.2 the Lessor must credit to
the Lessee against the next month's Rent an amount equivalent the overpaid
Rent.
22.5 The Lessee irrevocably authorises and directs the Lessor's solicitors to
complete the Lease by inserting:
(a) Rent at Item 7;
(b) Attaching the survey plan of the Premises; and
(c) any other amendments agreed in writing between the Lessor and Lessee.
23. LESSEE'S WORKS AND LESSEE'S FITOUT
23.1 LESSEE'S DRAWINGS AND SPECIFICATIONS
(a) The Lessee must, as soon as practicable after executing this Lease and
at its cost, prepare and give to the Lessor:
(i) two copies of detailed working drawings and specifications of the
Lessee's Fitout and the Lessee's Works, which the Lessee proposes
to carry out; and
(ii) the names and other relevant details of the architect and the
contractors that the Lessee intends to use.
Page 52 of 57
' (b) The Lessor must, as soon as practicable, notify the Lessee:
(i) whether or not the Lessor approves of, or requires alterations
to, the drawings and specifications received under paragraph
(a)(i); and
(ii) whether or not it approves of the architect and the contractors
that the Lessee intends to use.
(c) If the Lessor does not approve of the drawings and specifications the
Lessee must alter and resubmit them.
(d) The Lessor must not unreasonably withhold its approval under this
clause.
23.2 AUTHORISATIONS
The Lessee must not start the Lessee's Fitout or the Lessee's Works until:
(a) the Lessor approves of the drawings and specifications under clause
23.1.
(b) the Lessee gives the Lessor copies of all Authorisations required for
the Lessee's Fitout and Lessee's Works; and
(c) the Lessor approves the contractors and architect that the Lessee
intends to use to carry out the Lessee's Fitout and Lessee's Works.
23.3 CONDITIONS REGARDING LESSEE'S FITOUT
The Lessee must:
(a) (TIMING) start and complete the Lessee's Fitout and Lessors Works as
soon as practicable after the Lessor approves of the drawings and
specifications and the Lessee's architect and contractors under clause
23.1;
(b) (LESSOR'S APPROVAL) complete the Lessee's Fitout and Lessors Works in
accordance with the plans and specifications approved by the Lessor
under clause 23.1;
(c) (LESSOR'S DIRECTIONS) comply with, and ensure that its contractors and
employees comply with, all reasonable directions of the Lessor in
relation to the carrying out of the Lessee's Fitout and Lessor's
Works;
(d) (NO DISTURBANCE) cause as little disturbance as possible to the Lessor
or any other occupier of, or invitee in, the Building;
(e) (COMPLIANCE) comply with all relevant statutes, Authorisations and
requirements of any Government Agency in relation to the Lessee's
Fitout and Lessee's Works;
(f) (COMPETENCY) carry out the Lessee's Fitout and Lessee's Works in a
workmanlike and competent manner;
(g) (REMOVAL OF RUBBISH) remove from the Building all rubbish or debris
resulting from the Lessee's Fitout or Lessee's Works;
Page 53 of 57
(h) (REPAIR DAMAGE) repair any damage directly or indirectly caused to the
Building by the carrying out of the Lessee's Fitout or Lessee's Works;
(i) (NOTICE OF COMPLETION) give the Lessor five Business Days notice of
when the Lessee's Fitout or Lessee's Works are likely to be completed;
and
(j) (HEAVY EQUIPMENT) not bring any heavy equipment into the Building
unless it is required to carry out the Lessee's Fitout or Lessee's
Works and it complies with the maximum floor loading weights for the
Building.
23.4 INSURANCE
Clauses 9 of the Lease applies from the time the Lessee begins the Lessee's
Fitout or Lessee's Works.
23.5 STRUCTURAL WORK OR ALTERATIONS TO SERVICES
If any alteration is required to the services provided or to be provided to
the Premises or to the Building, or to any plant or equipment in the
Building:
(a) the Lessee must pay for the required alteration; and
(b) the Lessor may elect to carry out the required alteration itself, at
the Lessee's cost.
23.6 PRESERVATION OF LESSOR'S WARRANTIES
The Lessee must not carry out any Lessee's Fitout or Lessee's Works or
carry them out in any way which could prejudice the Lessor's rights under
any builder's, contractor's or other warranties in relation to the
Building.
23.7 OCCUPATION AS LICENSEE
The Lessee occupies the Premises and the Licensed Area until the Commencing
Date as a licensee and not as a tenant.
Page 54 of 57
SCHEDULE 1
RULES
1. Lessees must not erect any sign, advertisement or notice on the inside or
outside of their premises or anywhere in the building unless the location,
colour, size and style are first approved in writing by the lessor.
2. Lessees must use entrance passages, halls, staircases and fire escapes only
for entering and exiting their premises, and must not obstruct them.
3. Lessees must comply with the regulations of public authorities and with the
terms of any insurance policy for the building or its contents.
4. Lessees must not interfere with each other's rights or injure or annoy each
other.
5. Lessees must securely lock all doors and windows in their premises when
unoccupied. If a lessee does not do so, the lessor or its agents, employees
or contractors may enter the premises and do so.
6. Lessees must not burn any rubbish or other thing on the Land.
Page 55 of 57
PLAN
Page 56 of 57
Certified correct for the purposes of the Real Property Xxx 0000 by the
corporation named below the common seal of which was affixed pursuant to the
authority specified and in the presence of the authorised person(s) whose
signature(s) appear(s) below.
Corporation: LEGO AUSTRALIA PTY LIMITED
Authority: Section 127 of the Corporations Act
---------------------------------- ----------------------------------
Signature of authorised person Signature of authorised person
---------------------------------- ----------------------------------
Name of authorised person Name of authorised person
Director, Secretary, Sole Director/Secretary
--------------------------------------------
Office held
Director, Secretary, Sole Director/Secretary
--------------------------------------------
Office held
Certified correct for the purposes of the Real Property Xxx 0000 by the
corporation named below the common seal of which was affixed pursuant to the
authority specified and in the presence of the authorised person(s) whose
signature(s) appear(s) below.
Corporation: ISOLAGEN AUSTRALIA PTY LIMITED
Authority: Section 127 of the Corporations Act
/s/ Xxxxxxx Xxxxxxxx
---------------------------------- ----------------------------------
Signature of authorised person Signature of authorised person
Xxxxxxx Xxxxxxxx
---------------------------------- ----------------------------------
Name of authorised person Name of authorised person
Director, Secretary, Sole Director/Secretary
--------------------------------------------
Office held - CEO
Director, Secretary, Sole Director/Secretary
--------------------------------------------
Office held
Page 57 of 57
