1
EXHIBIT 10.10
Form: 97-07L LEASE Land Titles Office use only
NEW SOUTH WALES
REAL PROPERTY ACT 1900
Licence: LAW/0537/98 Do not affix additional pages here:
use the left-hand corner
STAMP DUTY Office of State Revenue use only
A) TORRENS Property leased: if appropriate, specify the part or premises
ITLE Whole of level 4, 68-72 Wentworth Avenue Surry Hills and being
part of the premises contained in Folio Identifiers 19/6380
and 2/536654
B) LODGED BY LTO Box Name, Address or DX and Telephone CODE
Reference (optional): L
C) LESSOR
MORUBEN NOMINEES PTY. LTD
(ACN 001 923 002)
The lessor leases to the lessee the property referred to above.
D) Encumbrances (if applicable): 1 . 2. 3.
E) LESSEE
CHIP APPLICATION TECHNOLOGIES LIMITED
(ACN 057 883 333) TENANCY:
F)
G) 1. TERM: Four years
2. COMMENCING DATE: 15 December 1999
3. TERMINATING DATE: 14 December 2004
4. With an OPTION TO RENEW for a period of 4 years set out in
Clause 16
5. With an OPTION TO PURCHASE set out in NIL
6. Together with and reserving the RIGHTS set out in ANNEXURE A AND
SCHEDULE I
7. Incorporates the provisions set out in ANNEXURE A AND SCHEDULE 1
hereto.
8. Incorporates the provisions set out in MEMORANDUM filed in the
Land Titles Office as No. NIL
9. I certify that this lease (including any annexure) comprises
pages numbered in sequence with this form.
Full name and position: Signature:
LTO use
Total pages:
All handwriting must be in PAGE 1 OF 2 Checked by:
block capitals.
2
We certify this dealing correct for the purposes of the Real Property Act 1900.
DATE:
Signed in my presence by the lessor who is personally known to me.
THE COMMON SEAL of MORUBEN NOMINEES PTY )
LIMITED (A.C.N.001 923 002) is affixed in accordance with its )
Constitution in the presence of: )
Signature of authorised person: Signature of authorised person:
Print Name of authorised person: Print Name of authorised person:
Office held: Office held:
Signed in my presence by the lessee who is personally known to me.
THE COMMON SEAL of CHIP TECHNOLOGIES )
LIMITED (A.C.N. ) is affixed in accordance with its )
Constitution in the presence of: )
Signature of authorised person: Signature of authorised person:
Print Name of authorised person: Print Name of authorised person:
Office held: Office held:
I) STATUTORY DECLARATION
I solemnly and sincerely declare in respect of every option to renew
or purchase in Lease No. 2458364 that the time for exercise of the
option has ended; the lessee under that lease has not exercised the
option; and a variation of lease extending the term has not been
entered into. I make this solemn declaration conscientiously
believing the same to be true and by virtue of the Oaths Act 1900.
Made and subscribed at in the State
of on
in the presence of-
Signature of witness: Signature of lessor:
Name of witness:
Address of witness:
Qualification of witness:
3
"A"
TERMS AND CONDITIONS
1. INTERPRETATION
The following expressions shall bear the meanings attributed thereto:-
1.1. Where there are more than one Lessor and/or Lessee the words
"Lessor" and/or "Lessee" shall respectively mean and include all
such Lessors and/or Lessees and each of them and each of their
executors, administrators and assigns.
1.2. The word "premises" shall mean the property hereby referred to
in the front page thereof with the improvement erected thereon
described in ITEM 1 of SCHEDULE 1 hereto. The word "building"
shall mean the whole of the property referred to in ITEM 1 of
SCHEDULE 1 hereto.
1.3. "Lessor's works" shall mean the following:-
1.3.1. Strip out false ceiling and make good roof with
corrugated panelling painted white.
1.3.2. Install air conditioning to the whole of the premises,
false ceiling to be fitted in front office to cover air
conditioning equipment.
1.3.3. Install suspended lighting (similar to level 3 in the
building) including lighting in front office ceiling and
provide sufficient lighting overall for the Lessee's
requirements.
1.3.4. Provide all necessary sprinklers and other fire
protection equipment in order to satisfy the regulations
and Fire Department requirements.
1.3.5. Provide all power outlets along perimeter walls (in
accordance with specifications provided by the Lessee).
1.3.6. Provide power requirements to the computer room at
premises (in accordance with specifications provided by
the Lessee).
1.3.7. Provide power to all columns and cabling to support in
excess of 2 double GPO's at each column (if the Lessee
requires the sockets on the columns will be
repositioned).
1.3.8. Repaint all walls and windows white.
1.3.9. Buff floorboards of the premises and apply two coats of
polish.
1.3.10. Strip and relacquer all columns
1.3.11. Refurbish kitchen areas (which will include installation
of the hot water service, cupboards, work area, sink,
and power points for refrigerator, dishwasher and
microwave. Repair/repaint walls and provide suitable
floor covering.
1.3.12. Refurbish toilets (to the same standard as those on
Level 3 of the building).
1.3.13. Refurbish shower facility ensuring the walls around the
kitchen/storeroom and toilet areas are to be full
height.
1.3.14. Re-paint foyer
1.3.15. Repair and repaint lift door.
1.3.16. Install any panelling or do any work required to cover
up services or utilities.
4
2
1.3.17. Ensure power is connected and available to the premises.
1.3.18. Ensure telephone services (50pr cable) is available for
premises.
1.4. The words importing the singular or plural number shall include
the plural and singular number respectively and the words
importing the masculine gender shall include feminine or neuter
gender.
1.5. Covenants binding more than one Lessee shall be deemed to bind
them and any two or greater number of them jointly and each of
them severally.
1.6. The word "rent" shall mean the amount of rent payable (in
respect of the premises) in accordance with ITEM 6 of SCHEDULE 1
hereto as varied from time to time by the provisions of this
lease.
1.7. The word "Review Date" means the dates specified in the ITEM 5
of SCHEDULE 1 hereto.
1.8. The word "person" includes corporation.
1.9. A reference to a party to this lease shall include in the case
of a natural person a reference to the personal representative
and assigns and in the case of a corporation a reference to its
successors and assigns.
1.10. The SCHEDULE hereto shall be deemed to form part of the lease.
2. EXCLUSION OF STATUTORY PROVISIONS
2.1. The covenants powers and provisions implied in leases by virtue
of Sections 84 and 85 of the Conveyancing Act 1919 shall not
apply in this lease except in so far as the same or some part or
parts thereof are included in the covenants, powers and
provisions hereafter set out.
3. RENTAL AND TERM
3.1. Term
This lease shall be for the term set out in ITEM 3 of SCHEDULE 1
hereto, commencing and terminating on the dates set out in ITEM
2 of SCHEDULE 1 hereto AND BEING a date one day following
completion of the Lessor's works together with such rights in
common (if any) and subject to such reservation (if any) as
specified in SCHEDULE 1 hereto.
5
3
3.2. Rent
The Lessee shall pay to the Lessor the rent in the manner set
out in ITEM 6 of SCHEDULE 1 hereto for the term herein provided
and on and subject to the following covenants, terms, conditions
and provisions.
3.3. Due Date for Payment of Rent
The rental payable under this lease shall be payable by calendar
month instalments in advance on the first day of each month and
every month to the Lessor or to such person, bank, or
corporation as the Lessor may from time to time in writing
direct without any deductions and abatement whatsoever and
whether formally demanded or not.
3.4. In the event of the term hereof commencing on a day other than
the first day of a month the Lessee shall pay to the Lessor in
respect of the broken periods prior to the first complete month
of the term hereof and subsequent to the last complete month of
the term hereof on the first day of each such broken periods a
proportionate part of the appropriate monthly payment payable on
account of the annual rent.
3.5. Review Of Rental
The rent is to be reviewed on the rent Review Dates stated in
ITEM 5 of SCHEDULE 1 hereto and according to the methods as
stated in ITEM 5 of SCHEDULE 1 and such methods are described as
follows:
3.5.1 CONSUMER PRICE INDEX (CPI)
If rent is to be reviewed according to the CPI, then the
rent will be reviewed according to the following
formula:
Rent = R x CP2
CP1
"R" is the rent immediately preceding the rent payable
by the Lessee for the Lease Year ending on the day
immediately preceding the relevant Review Date.
"CP2" is the Consumer Price Index - All Groups - Sydney
as published by the Australian Bureau of Census and
Statistics on the relevant Review Date or (if not
published on that day) last published before that date;
and
"CP1" is the Consumer Price index - All Groups - Sydney
as published by the Australian Bureau of Census and
Statistics on the previous Review Date (and in the case
of the first review, the Commencement date of the said
term) or (if not published on that day) last published
before that date.
6
4
IN THE EVENT there is any suspension or discontinuance
of the Consumer Price Index at a rent to be mutually
agreed upon between the Lessor and the Lessee and in
default of agreement the rent to be determined by method
known as the Current Market Rent and described below.
3.5.2. CURRENT MARKET RENT
If the rent is to be reviewed according to the Current
Market rent then the following procedures shall apply:-
i. Not earlier than three (3) months before or not
later than three (3) months following the Review
Date the Lessor may notify the Lessee in writing
(the "rent review notice") of the Lessor's
assessment of the rent having regard to the
current market rent at the Review Date and to
the directions herein contained and to apply
from that particular Review Date.
ii. Should the Lessee be unable to agree upon the
rent specified in the rent review notice, the
Lessee must notify the Lessor in writing within
fourteen (14) days from the date of service of
the rent review notice (and in which respect
time is of the essence) that the Lessee requires
review of the rent according to this clause.
iii. Unless notice is given by the Lessee within the
dispute periods specified herein than the amount
stated in the rent review notice shall become
the rent reserved by this lease as and from that
particular Review Date.
iv. The Lessor shall not by reason of its failure to
give notice of its assessment of the rent during
the periods specified herein in relation to any
Review Date forfeit its rights to have the rent
reviewed as from any such Review Date (provided
that any such review is undertaken prior to the
next immediately following Review Date) and the
reviewed rent which should have been paid shall
date from and be payable from the particular
Review Date and any receipt for the payment of
rent at a lesser amount due to the Lessor's
failure to review during the period specified
herein shall not prejudice the Lessor's right to
demand payment thereafter of any additional rent
payable by the Lessee as a result of such
review.
3.5.3. Procedure for Non Agreement of Reviewed Rent
Should the Lessee disagree with the Lessor's assessment
of the rent notified in the Lessor's rent review notice
then the following procedure shall apply:
7
5
i. The Lessee shall within fourteen (14) days of
service of the rent review notice (in which
respect time is of the essence) or within such
further period (if any, and in respect of which
time shall be of the essence) as the Lessor may
in its absolute discretion determine by written
notice to the Lessee (the "disputed period")
give written notice to the Lessor (the "dispute
notice") that the Lessee disputes the rent
assessed by the Lessor.
ii. A valuer nominated by either party under this
clause shall be a full member of not less than
five (5) years standing of the Australian
Institute of Valuers and shall be the holder of
a licence to practice as a valuer of the kind of
premises under this lease and shall have at
least three (3) years of experience in valuing
such kind of premises and be active in that
market at the time of his appointment.
iii. Upon receipt of the dispute notice from the
Lessee, the Lessor shall request the president
of the Australian Institute of Valuers to make
an appointment of the independent valuer (being
a valuer provided in this clause and as a
condition of his acceptance undertakes to hand
down his determination of the rent within
twenty-one (21) days of his being instructed to
proceed with his determination).
iv. Should it be necessary for the valuer to
determine the rent, his determination shall be
final and binding on the parties hereto. In
considering his determination the valuer shall
have due regard to any evidence submitted by the
Lessor and Lessee as to their assessment of the
rent and the valuer shall give his determination
and the reason therefor in writing to the Lessor
and Lessee.
3.5.4. Provisions for Fixing Current Market Rent
i. If the procedure referred to above is followed,
the costs of valuation shall be borne equally
between the Lessor and the Lessee
ii. A valuer determining the current market rent
shall do on:
- on the basis of a willing but not
anxious Lessor and a willing and not
anxious Lessee.
- taking no account of any goodwill
attributable to any business carried on
by the Lessee in the premises or the
value of the Lessee's goods
- having regard to the terms and
conditions of this lease and in
particular (without limiting the
generality of the foregoing) the period
of time to the next current market
8
6
rent determination
- disregarding any deleterious condition
of the premises which results from any
breach of this lease by the Lessee;
- on the assumption that all covenants of
the Lessee and the Lessor in this lease
have been performed,
- having regard to such other matters
which are normal valuation
considerations for such a determination.
iii. Any valuer making a determination shall act as
an expert and not as an arbitrator and his
determination shall be final
iv. Any acceptance of rent on or after a
determination date shall not prejudice the
Lessor's rights to demand a payment of any
additional rent becoming payable following
fixing of the current market rent
4. OUTGOINGS
4.1. The Lessee will pay in addition to the rental payable outgoings
for the property in accordance with ITEM 11 of SCHEDULE 1
hereto.
4.2. Such amounts shall be notified by the Lessor to the Lessee
within one month of each Review Date in each year and shall be
paid by the Lessee to the Lessor within one (1) month of written
notification.
4.3. For the purposes of this clause, "outgoings" means the
following:
4.3.1. All rates and taxes (including land tax on a single
holding), charges, assessments, duties and fees of any
public municipal, governmental or semi-governmental body
authority or department levied, assessed or charged in
respect of the building and/or the said land.
4.3.2. All insurance premiums payable by the Lessor in respect
of the building and the fittings and fixtures of the
Lessor therein in their full insurable reinstatement
value against fire, flood, lightning, storm and tempest
and the Lessor against other risk (referable to the
building or the Lessor in relation to the Lessor's
ownership or interest in the building) as the Lessor may
reasonably deem necessary or desirable including other
risks as any head Lessor of the Lessor may request in
respect of the building.
4.3.3. The cost of all metered services supplied to the
building (not including those metered services for the
premises) including but without limiting the generality
of the foregoing, all charges for trade waste, licence
fees, electricity, oil, telephone, sewerage, water
services, garbage services and trade waste commercial
quality charges
9
7
4.3.4. The costs of services provided by the Lessor for tenants
and other occupants in the building and visitors to the
building being those costs for cleaning common areas,
telephone lift/fire line, lift maintenance, pest control
and security.
5. DAMAGE OR DESTRUCTION OF PREMISES AND BUILDING
5.1. If during the term the premises shall be destroyed or damaged by
any cause whatsoever so as to render the whole or any part or
parts of the premises inaccessible or unfit for use and
occupation, the following provisions shall apply:-
5.1.1. Where such destruction or damage is such as to render
the repair or reconstruction of the premises impractical
in the opinion of the Lessor (such opinion to be
reasonably formed)
i. subject to clause 5(a)(ii), the Lessor shall
within a reasonable time after the occurrence of
such destruction or damage give notice in
writing to the Lessee of the Lessor's decision
not to effect repair or reconstruction and upon
giving such notice this lease shall be
determined without compensation to the Lessee
and without prejudice to the rights of either
the Lessor or the Lessee in respect of any
antecedent claim or matter under this lease and
without prejudice to the rights of the Lessor in
respect of any act or omission of the Lessee,
his servants or agents related to such
destruction or damage.
ii. if the occurrence of such destruction or damage
has been wholly or partly caused by any act or
omission of the Lessee his servants or agents
and the Lessor's insurance in relation to such
destruction or damage has thereby been vitiated,
the Lessor shall not be obliged to give notice
referred to in the above clause notwithstanding
that the Lessor may have decided not to effect
repair or reconstruction.
5.1.2. Where the Lessor does not give notice in accordance with
aforementioned clause and where the occurrence of such
destruction or damage has not been wholly caused by the
act or omission of the Lessee his servant or agents and
the Lessor's insurance in relation to such destruction
or damage has not been vitiated, the Lessor shall effect
repair or reconstruction as the case requires in a
proper and workmanlike manner and with reasonable
expedition.
5.1.3. Where the occurrence of such destruction or damage has
not been wholly caused by any act or omission of the
Lessee, his servants or agents and the Lessor's
insurance in relation to such destruction or damage has
10
8
not been vitiated by any such act or omission, then
immediately following the occurrence of such destruction
or damage the payment of rent and any other periodical
payments payable by the Lessee under this lease shall
abate as to the whole (where the premises are rendered
inaccessible or wholly unfit for use or occupation by
the Lessee) or as to a proportion (where the premises
are rendered partly unfit for occupation or use by the
Lessee) according to the extent and nature of such
destruction or damage and the effect thereof upon the
Lessee's use or occupation of the premises for the
period during which the premises shall remain
inaccessible unfit for use and occupation by the Lessee.
IN THE EVENT of a difference arising between the Lessor
and the Lessee as to the extent, nature or period of
such destruction or damage or as to the effect thereof
on the Lessee's access, use or occupation of the
premises or as to the proper proportion of the rent to
be so abated such difference shall be determined by a
member of the Australian Institute of Valuers & Land
Economists (Inc) (NSW Division) (or its successor)
appointed by the President for the time being of the NSW
Division of the said Institute (or its successor) and
the person so appointed shall in making his
determination act as an expert and not as an arbitrator
and his determination shall be borne equally by the
Lessor and Lessee and, save as aforesaid, the Lessee
shall have no claim against, the Lessor for any
compensation of any kind whatsoever in respect of any
such destruction or damage.
6. TAKING OF PREMISES FOR PUBLIC PURPOSES
6.1. If the building or premises is taken for any public purpose, the
Lessee shall have no claim against the Lessor by reason of such
taking.
7. USE OF THE PREMISES
7.1. Permitted Use
Not without the prior written consent of the Lessor, the Lessee
shall not use or permit to be used the whole or part of the
premise other than as set out in ITEM 7 of SCHEDULE 1 hereto
7.2. Save as expressly permitted and set forth in ITEM 7 of SCHEDULE
1 hereto not to carry on or permit to be carried on upon the
premises or any part thereof any noisy, hazardous or offensive
business trade or occupation nor create or permit any nuisance
thereon or in or upon any part of the premises nor do nor suffer
to be done any act matter or thing which shall or may be an
annoyance inconvenience or disturbance to the occupiers or
owners of adjoining lands or premises or the neighbourhood nor
use nor allow the premises or any part thereof to be used for
any purpose of an illegal or improper nature or injurious to the
reputation of the parties hereto or the said building
11
9
7.3. The Lessee shall be responsible at the cost and expense of the
Lessee for the usage of the premises in complying with any Act
or Acts now or at anytime during the term of this lease as are
in force in New South Wales and/or the Commonwealth and all
ordinances, regulations, orders, fines or notices of any person
or body having jurisdiction or authority in respect of the
premises or the use thereof where such provision or obligation
relates to or arises out of the use to which the premises are
put by the Lessee or the manner in which the Lessee uses or
occupies the premises.
8. COVENANTS OF THE LESSEE ALTERATIONS, REPAIRS, MAINTENANCE ETC.
The Lessee covenants as follows:
8.1. Alterations
8.1.1. The Lessee shall not paint, drill, cut, injure or deface
any of the walls or partitions of the premises or any of
the Lessor's fixtures, fittings, chattels and effects
and not to make or permit to be made any alterations or
additions whatsoever in or to the premises or any part
thereof WITHOUT the written consent of the Lessor and
then only at the Lessee's own cost and expense and in
accordance with plans and specifications previously
approved in writing by the Lessor or a representative of
the Lessor. Such consent shall not be unreasonably
withheld but it shall be a condition of such consent
that the Lessee obtain and comply with any necessary
permits, regulations or orders from any authority. In
the event of any structural alterations involving
removal of walls or windows that the Lessee shall if
required on the determination of the tenancy restore the
premises to their original condition. The Lessee shall
also be liable to make good any damage done to any part
of the premises or adjacent premises occasioned by any
alterations so made;
8.1.2. Any such work that is approved shall be carried out in a
proper and workmanlike manner and in accordance with the
requirements of any local government or other authority
having jurisdiction or control in respect of such work
and in carrying out such work the Lessee shall ensure
that a minimum amount of disturbance an inconvenience is
caused to any occupier, tenant or owner of nearby
premises
8.2. Exterior Advertising:
The Lessee shall not paint on or affix any such sign or
advertisement without first obtaining the consent of the Lessor,
such consent not to be unreasonably withheld. On the expiration
or sooner determination of the term hereby granted, the Lessee
must fully remove and/or completely delete all lettering and any
other
12
10
distinctive marks or signs put by or for the benefit of the
Lessee in any part of the premises and from all other parts of
the said building and to reinstate the premises and all damage
or injury as may unavoidably be done and in default to pay to
the Lessor such costs as may be reasonably incurred to restore
the premises and such other parts of the said building to the
original condition;
8.3. Replace Broken Windows and Glass
To replace all windows and other glass in the premises which may
be broken from any cause whatsoever during the said term with
glass of the same quality as that which may be broken and to
make good all loss and damage to the premises sustained as a
result of burglary or attempted burglary on the premises;
8.4. Cleanliness of premises and building
To keep the interior glass windows and the interior of the
premises at all times cleaned in a proper and workmanlike manner
and to keep all waste matter and rubbish in bins and to keep the
premises and appurtenances thereto clean and free of all
rubbish, rodents, vermin and pests;
8.5. Animals
Not to keep any animals or birds on the premises.
8.6. Overloading of floors
Not to bring upon the premises any heavy machinery, equipment,
safe or other heavy material not reasonably necessary or proper
for the conduct of the Lessee's use of the premises as herein
provided and in no event shall such machinery plant equipment or
safe be of such size or nature power or weight as to cause or in
the reasonable opinion of the Lessor be likely to cause any
structural or other damage to the floor, walls or other parts of
the premises and building. the Lessee must inform the Lessor
before bringing in such machinery plant equipment or safe of
such intention and then to install the same in such location as
the Lessor shall direct. The Lessee shall make good at the cost
and expense of the Lessee any damage to the building by the
installation and removal of such machinery plant equipment or
safe in and from the premises;
8.7. Repair and Repainting
The Lessee shall during the term keep the premises in good and
substantial repair and at the expiration or sooner determination
of the term shall peaceably surrender and yield up the premises
to the Lessor in good and substantial repair (having regard to
the condition of the premises at the commencement of the term),
reasonable wear and tear and damage by fire, lightning, flood,
storm, tempest or explosion only excepted. The Lessee shall also
(without limiting the generality of the foregoing) during the
last year of this lease or the last year of
13
11
any Renewed Lease howsoever terminating at his own expense and
in a proper and workmanlike manner with materials and to a
specification to be approved by the Lessor in writing (such
approval not to be unreasonably withheld) paint such parts of
the premises as were painted at the commencement of the term.
8.8. Enter and View
8.8.1. The Lessor (and power is hereby given accordingly ) its
servants or agents upon giving the Lessee reasonable
notice may enter upon the premises to examine and view
the state and condition thereof the premises for any
defects, wants, state of repair for which the Lessee is
liable hereunder and may by notice in writing serve on
the Lessee requiring the Lessee to repair or make good
any such defects, wants, repair and/or breach(s) of
covenants.
8.8.2. The Lessee shall repair and make good the premises under
such notice in accordance with the time stipulated and
that in default of the Lessee making good the premises
under the notice, it shall be lawful but not obligatory
on the Lessor (without prejudice to the right of
re-entry hereinafter contained and without prejudice to
any other of the powers or remedies herein contained or
implied) after having reasonable notice to enter upon
the premises with servants workmen and appliances and to
make good such defects and wants or repair and comply
with such covenants so broken as aforesaid at the
expense of the Lessee in all respects and to recover all
moneys expended for such purposes or any of them as if
the same had been rent in arrears reserved by this lease
or money paid by the Lessor at the request of and on
behalf of the Lessee.
8.9. Enter and Repair
The Lessor or his servant or agents may at all reasonable times
and with reasonable notice during the term and with all
necessary materials and appliances enter the premises for the
purpose of carrying out any alterations or repairs for which the
Lessee may not be liable under this lease or being liable shall
neglect to do or which the Lessor is of the opinion necessary or
desirable to do or for the purpose of complying with any
legislation affecting the building or the premises or with any
notice served by any authority whatsoever having jurisdiction
over in respect of the building or premises involving the
carrying out of cleansing, alterations, repairs or work or for
the purpose of exercising the powers and authorities of the
Lessor under this lease PROVIDED THAT such cleansing,
alterations, repairs or work shall be carried out without
disturbance unnecessary interference with the occupation and use
of the premises by the Lessee.
8.10. Cost of Repairs
The Lessee shall (to the extent to which the Lessee may be
liable in respect
14
12
thereof under the terms of this lease) pay to the Lessor on
demand all moneys expended by the Lessor in making and executing
any such cleansing, alterations, repairs or work as referred to
in this lease and in default of such payment by the Lessee, the
same shall be recoverable as rent in arrears.
8.11. Notice of damage
The Lessee must give notice to the Lessor promptly of all
structural imperfections and/or damage which may appear in the
premises.
8.12. Compliance with Statutes etc
8.12.1. To duly comply at the Lessee's own expense with the
provisions of the Local Government Act or any statutory
re-enactment modification or amendment of any regulation
issued thereunder and any Commonwealth or State
enactment or regulations notices directions orders
requirements or demands of any Government Municipal or
other authority and Fire Brigades Board affecting the
premises and to keep the Lessor indemnified in respect
of any breach thereof PROVIDED ALWAYS that the Lessee
shall not be required hereby to perform or carry out
structural work unless the same be required by reason of
the number persons using the premises or the nature of
the business carried on in the premises and which would
not be required were the premises put to other uses.
8.12.2. The Lessee must obtain the consent of any planning
authority which may be required for the Lessee to carry
on its business in the premises and the failure of the
Lessee to obtain any such consent shall not relieve the
Lessee of its obligation to pay rent and otherwise to
observe and fulfil its obligations hereunder.
8.13. Pests
The Lessee shall take all reasonable precautions to keep the
premises free from rodents, vermin, insects and the like and in
the event of his failure to do so, the Lessor, at the cost of
the Lessee employ pest exterminators to eradicate the same and
such cost shall be recoverable as rent in arrears.
8.14. Misuse of services
To indemnify and keep the Lessor indemnified from all loss and
damage to the premises or any part thereof caused by the
negligent use or mis-use waste or abuse by the Lessee or his
servants agents invitees or licensees of the gas, electricity,
water, sanitary or other apparatus now installed in or serving
or which may be hereafter installed and serve the demised
premises or any part of the said building and to give to the
Lessor prompt notice of any accidents to or defects in the pipes
wiring or fittings thereof.
15
13
8.15. Appurtenances
From time to time throughout the said term, at the Lessee's own
cost and expense without being thereinto specifically requested
to repair maintain and keep the premises and all additions
thereto including all gas electricity water sanitary or other
apparatus now installed in or serving or which may hereafter be
installed AND keep the same cleaned and in good substantial
order and condition AND to pay the cost of all cleaning relative
thereto caused by any stoppage and to make all necessary repairs
renovations and amendments to the premises when where and as
often as the same shall be requisite by fair wear and tear, Act
of God and accidental fire always excepted and the premises and
things so repaired cleaned maintained amended and kept at the
end or sooner determination of the said term to yield up unto
the Lessor together with all additions and improvements made by
the Lessor thereto in the meantime and with all locks keys and
fastenings of the premises complete.
8.16. Environmental Legislation
The Lessee must comply with all provisions of and the
requirement made pursuant to any subsequent environmental
legislation, regulation or by-law affecting the premises
8.17. Legal Costs in Litigious Matters
The Lessee must pay on demand by the Lessor all legal fees (as
between solicitor and client) and disbursements incurred by the
Lessor in respect of the Lessor, without fault on its part,
being a party to any litigation commenced by or against the
Lessee (other than litigation between the Lessor and Lessee) and
arising directly or indirectly out of the Lessee's occupancy of
the premises
8.18. Inclusions
The Lessee must properly maintain all inclusions in ITEM 8 of
SCHEDULE 1 hereto
8.19. Unpaid Gas, Electricity etc
The Lessee must pay all gas, electricity or other metered rents
in connection therewith and all garbage removal charges AND
should the Lessee neglect to pay for same, the Lessor in his
absolute discretion may pay for the same and immediately upon
paying for the same be entitled to recover the amount from time
to time so paid from the Lessee as if such amount were rent in
arrears.
8.20. Chemicals, Gas and Heating
Not, without the written consent of the Lessor, to use
chemicals, burning fluids, acetylene gas or alcohol in lighting
or heating the premises other than in the
16
14
ordinary course of its business
8.21. Auction Sales
Not to carry on or permit to be carried on or be privy to any
sale by auction on the premises or any party thereof
8.22. Overloading of Services
Not to interfere with or overload any electrical mechanical or
drainage service forming part of or used in connection with the
premises
8,23. Misuse of apparatus
Not to misuse the fire alarm systems and extinguishers the
electrical fittings and apparatus or the sinks wash basins,
water closets and other water services of or belonging to or
used in connection with the premises and not to throw or place
in any sweepings tea leaves rubbish bags ashes or other
unsuitable substances and to pay for any damage which may result
to any such apparatus by misuse thereof.
8.24. Replacement of Bulbs etc
To replace at the Lessee's expense all broken or faulty light
bulbs and fluorescent tubes and to condensers in the premises
8.25. Source of Light and Power
Not to use any form of light power or heat other than electrical
current or gas supplied through the metered services.
8.26. Security
To cause all exterior doors and windows in the premises to be
securely locked and fastened at all times when the premises are
not being used and the Lessee authorises the Lessor and its
agent from time to time to enter the premises for the purposes
of locking any such door or window left unlocked or unfastened
8.27. Removal of Lessee's Chattels
8.27.1. The Lessee may at or prior to the expiration of this
lease at the cost and expense of the Lessee take, remove
and carry away from the premises all fixtures, fittings,
chattels, plant, equipment or other articles upon the
premises in the nature of trade or tenant's fixtures
brought upon the premises by the Lessee but the Lessee
shall in removing such fixtures not damage the premises
and shall make good any damage which the Lessee may
occasion thereto and shall remove all rubbish and shall
leave the
17
15
premises in a clean state and condition.
8.27.2. In the event that the Lessee does not remove and carry
away any such fixtures, fittings, plant, equipment or
other articles at or prior to the determination of this
lease, the Lessor may, at the expense of the Lessee,
remove and dispose of the same and any such fixtures,
fittings, plant, equipment or other articles not so
removed by the Lessee by the date of determination of
this lease shall become the property of the Lessor.
9. ASSIGNMENT, UNDERLETTING, ETC.
9.1. The Lessee shall not at any time or times to mortgage, license,
sub-let, assign, transfer, dispose of or otherwise part with the
possession of the premises or any part thereof for the whole or
any part of the said term or permit or suffer the same to be
done PROVIDED THAT the Lessee may assign or transfer the lease
of the whole of the premises subject to the Lessee obtaining (on
each and every occasion) the prior written consent of the Lessor
and such consent to a proposed assignment sub-letting or
transfer only and of the whole of the premises only shall not be
unreasonably withheld or refused IF:-
9.1.1. the Lessee gives two (2) weeks notice in writing of his
desire to so assign or transfer, AND
9.1.2. the Lessee shall have duly performed and observed all
the covenants conditions and stipulation on the part of
the Lessee herein contained AND
9.1.3. the Lessee proposes to assign or transfer to the
transferee who prior to any such assignment or
transfer:-
i. proves to the satisfaction of the Lessor that he
is a respectable, responsible, solvent and
suitable person or if the transferee is a
company, the Lessee shall provide to the Lessor
such financial statements and records of the
transferee as the Lessor or the Lessor's
solicitor deems appropriate to determine the
solvency or otherwise of the transferee, and
ii. enters into a covenant with the Lessor in the
form required by the Lessor that he will duly
perform and keep the covenants and agreements on
the Lessee's part herein contained, and
iii. if the proposed transferee is a company,
furnishes to the Lessor such guarantee or
guarantees of the performance of the Lessee's
obligations under this lease as the Lessor or
the Lessor's solicitor shall require, and
iv. the Lessee pays to the Lessor the reasonable
cost and disbursements of the Lessor of and
incidental to the giving of the consent, and
v. the Lessee enters into a deed in the form
required by the Lessor under which he releases
the Lessor from all claims which the
18
16
Lessee then has, or may thereafter have against
the Lessor under or in any way arising from this
lease.
9.2. Where the Lessee is a corporation (other than a listed public
company) any change in the principal shareholding thereof or any
change in the principal shareholding of any holding company of
the Lessee which alters the effective control of the Lessee
shall (for the purposes of this clause) be deemed an assignment
of this lease and shall require consent of the Lessor as
required under this lease.
10. COVENANTS BY THE LESSOR:
The Lessor HEREBY COVENANTS with the Lessee:-
10.1. Peace, Quiet and Enjoyment of the Premises
That upon the Lessee paying the rent payable pursuant to the lease and
duly and punctually performing the convents, conditions and stipulation
hereinbefore contained in this lease on the part of the Lessee to be
observed and performed, and the right of termination or re-entry not
having arisen as hereinafter provided, shall and may peaceably and
quietly hold and enjoy the premises and the inclusions referred to in
ITEM 8 of SCHEDULE I hereto during the term hereby granted without any
unreasonable disturbance or interruption by the Lessor or any person
rightfully claiming under or in trust for the Lessor.
10.2. Lessor's Works
Prior to the Commencement Date of this Lease the Lessor shall perform
the Lessor's Works as defined, in a proper and workmanlike manner and
with reasonable expedition.
10.3. Maintenance
The Lessor will maintain the building (in particular the entrance foyer
area) and the premises in good repair, having regard to the condition of
the building and the premises at the Commencement Date of this Lease and
subject to fair wear and tear.
11. INSURANCES
The Lessee further covenants with the Lessor that
11.1. Public Risk Insurance
The Lessee shall at its own risk and cost effect and at all
times keep in full force a policy of Public Risk insurance with
respect to the premises of the business
19
17
carried on in the premises in which limits that Public Risk
shall not be less than $10,000,000.00 as the amount payable
arising out of any one single accident or event. The policy
shall name the Lessor, as owner and any person designated by the
Lessor as mortgagee or otherwise, and the Lessee as tenant. The
Lessee shall deliver to the Lessor on demand, a copy of the
policy and a current certificate of insurance.
11.2. Fixtures, Stock and Plate Glass
The Lessee shall, where relevant, effect and at all times during
the term maintain the following policies of insurance in the
name of the Lessee noting the interest of the Lessor:-
11.2.1. in respect of all the Lessee's fixtures and fittings
materials and goods other than stock-in-trade (whether
owned or leased or hired by the Lessee) for their full
replacement value a reinstatement and replacement policy
against fire and extraneous risks including storm
tempest, rain water and other water damage, flood,
riots, strikes, malicious damage, concussion, explosion,
impact by vehicles or aircraft and including (where
applicable) extra cost insurance with a reasonable sum
for the removal of debris and against such other risks
as may from time to time be agreed upon.
11.2.2. in respect of stock-in-trade for the current value a
fire policy against the same risks as aforementioned.
11.2.3. in respect of plate glass windows, doors and showcases
for their full replacement value against the risk of
breakage and damage
and the Lessee shall pay all premiums and stamp duty in respect
of and for the renewal of the said policies as they fall due and
as often as any of the property insured under any such policy
shall be destroyed or damaged, the Lessee shall at his own
expense, expeditiously repair or replace (as shall be
appropriate) such property to the satisfaction of the Lessor
(who shall act reasonable in this regard) and the proceeds which
shall be recovered or received for or in respect of such
insurance shall be paid out and expended in repairing or
replacing (as shall be appropriate) such property as shall be
destroyed or damaged
11.3. Lessee Not to Void Insurance
11.3.1. The policies referred to in this clause shall contain a
provision that the insured shall not cancel or change
the insurance without giving to the Lessor ten (10) days
prior written notice.
11.3.2. The Lessee will not to do or permit or suffer to be done
any act matter or thing whereby the insurance in respect
of the premises or of the building of which it forms
part may be vitiated or rendered void or voidable or
20
18
(except with the prior approval in writing of the
Lessor) whereby the premium on any such insurance shall
be liable to be increased. The Lessee shall pay all
extra premiums if any required on account of extra risk
caused by the use to which the premises are put by the
Lessee or by bringing or keeping on the premises any
material or substance;
11.4. Insurance Company
All policies of insurance liable or required to be effected by
the Lessee whether in respect of the property or risk either of
the Lessor or Lessee shall be taken out with an insurance
company approved by the Lessor which approval shall not be
unreasonably withheld
11.5. Production of Policies
The Lessee shall in respect of any policy of insurance to be
effected by the Lessee if required by the Lessor forthwith
produce to the Lessor any such policy of insurance and the
receipt for the last premium
12. INDEMNITIES
12.1. The Lessor shall not be liable or in any way responsible to the
Lessee or to any licensee or to any other person for injury,
loss or damage which may be suffered or sustained to any
property or by any person on the premises howsoever occurring
except any injury, loss or damage suffered as a result of any
negligent act or omission of the Lessor PROVIDED HOWEVER that
notwithstanding anything hereinbefore contained, the Lessor
shall not be liable for any damage to stock, goods, furniture or
effects of the Lessee or any licensee or any other person
arising from the overflow of water, sewerage or any other matter
which may leak on to or issue from any part of the premises or
from any part of the property of the Lessor.
12.2. The Lessee agrees to occupy and use the premises at the risk of
the Lessee and, in the absence of any negligence on the part of
the Lessor, the Lessor shall not in any circumstances be liable
to the Lessee for any loss or damage suffered by the Lessee for
any malfunction, disconnection, failure to function or
interruption of or to the water, gas or electricity services,
air conditioning equipment, fire equipment or blockage of any
sewers, wastes, drains, gutters, downpipes or stormwater drain
for any cause whatsoever or any other interference with or
interruption of any services that may now or hereinafter be
available in respect of the premises.
12.3. The Lessee shall indemnify and hold indemnified the Lessor from
and against all actions, claims, demands, damages, cost and
expenses which the Lessor may sustain or incur or for which the
Lessor may become liable whether during or after the term in
respect of the use of the premises by the Lessee or any servant,
21
19
agent, sub-tenant, licensee (or other person claiming through or
under the Lessee) whilst the Lessee is in possession of the
premises.
13. DEFAULT, TERMINATION, ETC
13.1. Re-entry by Lessor
In the case that:
13.1.1. rent or outgoings remain in arrears and unpaid for the
fourteen (14) days next after the due date as detailed
in ITEM 6 of SCHEDULE I hereto (whether demanded or not)
13.1.2. the Lessee sublets or assigns the premises without the
consent of the Lessor
13.1.3. the Lessee neglects and breaches the covenants contained
in the clause in relation to the use of the premise
13.1.4. the Lessee fails to make good within time any repairs or
alterations properly required by the Lessor specified
under notice
13.1.5. the Lessee being an individual becomes bankrupt
13.1.6. the Lessee being a company is declared insolvent or
enters voluntary liquidation or placed in receivership
or under official management.
then and in any of the said cases the Lessor may, if it so
elects, immediately or later and without notice or demand
re-enter the premises or any part thereof and thereby determine
the estate and interest therein of and expel and remove the
effects of the Lessee and those claiming under the Lessee
without being guilty of any manner of trespass and thereupon
this lease shall determine and cease and to this end all terms
in relation to breaches under this clause are essential.
13.2. No Consent or Waivers
In respect of the Lessee's obligation to pay rent, the
acceptance by the Lessor of arrears or of any late payment of
rent or of part payment of rent shall not constitute a waiver of
the essentiality of the Lessee's obligation to pay rent in
respect of those arrears or of the late payments or in respect
of the Lessee's obligation to pay rent during the term.
13.3. Lessor Entitlement to Compensation/Damages
13.3.1. The Lessee covenants to compensate the Lessor in respect
of any breach of an essential term of this lease and the
Lessor is entitled to recover damages from the Lessee in
respect of such breaches. The Lessor's
22
20
entitlement under this clause is in addition to any
other remedy or entitlement to which the Lessor is
entitled (including to terminate the lease)
13.3.2. In the event that the Lessee's conduct (whether act or
omissions) constitutes a repudiation of this lease (or
of the Lessee's obligation under this lease) or
constitutes a breach of any lease covenants, the Lessee
covenants to compensate the Lessor for the loss or
damage suffered by reason of the repudiation or breach
13.3.3. The Lessor's entitlement to recover damages shall not be
affected or limited by any of the following:
i. If the Lessee shall abandon or vacate the
premises
ii. If the Lessor shall elect to re-enter or
terminate the lease
iii. If the Lessor shall accept the Lessee's
repudiation
iv. If the parties conduct shall constitute a
surrender by the operation of law
13.3.4. The Lessor shall be entitled to institute legal
proceedings claiming damages against the Lessee in
respect of the entire term of the lease including the
period before and after any abandonment or vacation of
the premises, any re-entry or termination, any
repudiation or acceptance of repudiation or surrender by
operation of law, whether the proceedings are instituted
either before or after any abandonment or vacation of
the premises, any re-entry or termination, any
repudiation or acceptance of repudiation or surrender by
operation of law.
13.4. Remedy of Default by the Lessor
Where the Lessee has failed to comply with a Notice to remedy a
default the Lessor may without prejudicing any rights that may
accrue under this lease, but shall not be obliged to, remedy at
any time without notice any default by the Lessee under this
lease and whenever the Lessor so elects all costs and
disbursements incurred by the Lessor (including legal costs and
expenses) in remedying a default shall constitute a liquidated
debt and shall be paid by the Lessee to the Lessor on demand
13.5. Interest on Monies Overdue
Without prejudice to any rights powers or remedies otherwise by
this lease conferred on the Lessor to pay to the Lessor interest
at the then Westpac Corporation Bank Bill rate plus 2% per
annum, calculated on a daily basis, on any moneys due and
payable by the Lessee to the Lessor on any account whatsoever
pursuant to the provisions of this lease but unpaid from the due
date for payment. Such interest is to be calculated from the due
date for payment of the moneys in respect of which interest is
chargeable in accordance with the
23
21
provisions of this lease until the moneys have been paid in full
and shall be recoverable as rent in arrears.
13.6. Lessor's election for monthly tenancy upon default
13.6.1. Where the Lessee continues to be in default according to
this lease after having been given reasonable notice to
remedy such default, the Lessor may (without prejudicing
any of its rights against the Lessee that may accrue
under this lease), with notice in writing elect for this
lease to become a monthly tenancy. Such tenancy shall be
subject to the covenants, terms and conditions hereof as
a monthly tenant at a monthly rental equal to one (1)
month's proportion of the annual rent payable
immediately prior to the expiration of this lease.
13.6.2. If the Lessor makes an election under this sub-clause,
the monthly tenancy is determinable at the will of the
Lessor by one (1) month's notice in writing to the
Lessee other expiring on any day of the week.
13.7. Lessor to Mitigate Damages
13.7.1. In the event of the Lessee vacating the premises,
whether with or without the Lessor's consent, the Lessor
shall be obliged to take reasonable steps to mitigate
the damages and to endeavour to lease the premises at a
reasonable rent and on reasonable terms.
13.7.2. The Lessor's entitlement to damages shall be assessed on
the basis that the Lessor should have observed the
obligation to mitigate damages contained in this
sub-clause.
13.7.3. The Lessor's conduct taken pursuance of the duty to
mitigate damages shall not by itself constitute
acceptance of the Lessee's breach or repudiation or a
surrender by operation of law.
14. SECURITY DEPOSIT
14.1. The Lessee must pay to the Lessor the amounts referred to in
ITEM 10 of SCHEDULE 1 hereto by way of a Bank Guarantee
14.2. If the rent is increased, the Lessee must ensure that the amount
guaranteed is increased to be equivalent to the percentage
increase in the rent.
14.3. The Bank Guarantee is required as security for the payment by
the Lessee of the rent, Outgoings and any other money due from
time to time by the Lessee to the Lessor, under and pursuant to
or incidental to any one or more of the covenants, terms and
conditions of this lease and for the due and punctual observance
and performance of all the covenants, terms and conditions on
the Lessee's part in
24
22
this lease to be observed and performed.
14.4. The Bank Guarantee will be held by the Lessor.
14.5. If any money is over due and unpaid, the Lessor may in its
discretion call upon, appropriate and apply the whole or any
proportion of the Bank Guarantee to the payment of such overdue
and unpaid monies.
14.6. If at any time the Lessee fails to duly and punctually observe
and perform any of its covenants, terms and conditions of this
lease, the Lessor may in its absolute discretion appropriate and
apply so much of the Bank Guarantee as may be necessary in the
opinion of the Lessor to compensate the Lessor for any loss
and/or damages sustained or suffered by the Lessor by reason of
any such default or breach.
14.7. Any such appropriation by the Lessor of the Bank Guarantee or
part thereof shall not be deemed and shall not operate to waive
any default or breach by the Lessee.
14.8. If the Bank Guarantee is appropriated by the Lessor, then the
Lessee shall forthwith upon demand by the Lessor pay to the
Lessor the amount of the sum so appropriated.
14.9. The Lessor must account to the Lessee for the Bank Guarantee
upon the later of the Lessee vacating the premises or the
covenants, terms and conditions of this lease no longer applying
to the Lessee and so much of the Bank Guarantee which has then
not been appropriated by the Lessor shall be refunded to the
Lessee.
15. MISCELLANEOUS PROVISIONS:
15.1. No premium upon granting lease
It is mutually agreed and declared that no premium or other
consideration has been paid or is payable by the Lessee to the
Lessor in the consideration of the granting of this lease.
15.2. Costs of Lease
The Lessee shall pay all legal costs, stamp duties, charges,
expenses and payments which may be incurred or made by the
Lessor in relation to the application by the Lessee for consent
to an assignment or sub-letting of this lease or in the exercise
or enforcement or attempted exercise or enforcement of any power
right or remedy conferred upon the Lessor by this lease or which
the Lessor may in any way incur owing to default in payment of
any money herein reserved or the breach of any covenant or
condition herein contained or implied.
25
23
15.3. Inspection by Prospective Lessees
If the option to renew contained in Clause 16 is not exercised
the Lessee shall at all reasonable times permit the Lessor or
the Lessor's agents during the three (3) months immediately
preceding the determination of the said term to affix and retain
without interference upon any part of the premises a notice for
re-letting the same and to permit persons in the company of the
Lessor or the Lessor's agents at reasonable times of the day to
view the premises.
15.4. Notices
15.4.1. Any notice or other document or writing served or given
by the Lessor under this lease shall be valid and
effectual if served or given under the hand of the
Lessor (being an individual) or under the common seal of
the Lessor or under the hand of any director or attorney
or manager or secretary for the time being of the Lessor
(being a company).
15.4.2. Without prejudice to any other means of giving notice,
any notice or other document required to be served may
be served upon the Lessee by mailing the same in a
properly stamped envelope addressed to the Lessee at the
premises or by leaving the same at the premises and any
such notice or other document or writing shall when
given by post be deemed to have been served at the time
when the same would normally be delivered in the
ordinary course of the post.
15.5. Holding Over
Should the Lessee continue to occupy the premises beyond the
expiration of the term of this lease with the consent of the
Lessor, it shall do so on and subject to the covenants, terms
and conditions hereof as a monthly tenant only at a monthly
rental equal to one (1) month's proportion of the annual rent
payable immediately prior to the expiration of this lease or
such further lease (as the case may be) payable monthly in
advance such tenancy being determinable at the will of either
the Lessor or the Lessee by one (1) month's notice in writing to
the other expiring on any day of the week.
15.6. Alteration to the Building
The Lessor has the right from time to time improve, extend, add
or to reduce the building in any manner whatsoever or deal with
the building PROVIDED THAT in exercising such right the Lessor
will not unreasonably detrimentally effect the Lessee's use of
the premise or access to the building without the Lessee's
consent AND THAT if the Lessor observes its obligations under
this clause, the Lessee will have no claim for compensation,
damages nor have an abatement of rent AND the Lessee consents
hereto to registration of any Plan of Consolidation, Subdivision
and/or Strata PROVIDED THAT the floor space of the premises
26
24
demised hereto and/or any exclusive uses enjoyed under this
Lease by the Lessee is not effected by any such plan of
Consolidation, Subdivision and/or Strata.
15.7. Lessor not Incur Liability for Overflow of Water Supply Or
Rainwater
Notwithstanding any other provision of this Lease that the
Lessor shall not incur any liability for damage caused by the
overflow of water supply or rain water or other substances which
may leak into issue or flow into the premises from any part
thereof or from the building of which they form part or from any
adjoining building or from the pipes or drainage, fire
sprinkling, electrical works or for damage caused by defective
fire sprinkling, electrical, gas or sewerage installations or
structural defects or otherwise whether the same shall occur by
reason of the carelessness or negligence of the Lessor or of any
servant or agent of the Lessor or otherwise.
15.8. Lifts, Escalators, Airconditioning etc
That should any lifts, escalators, air conditioning equipment,
fire sprinkling systems or any other gas, electricity or water
supply installations or sanitary systems in the premises fail to
function from any cause whatsoever except where due to the clear
fault of the Lessor or should the Lessor be compelled to shut
off or remove from the building any of the said installations or
services, the Lessee shall not by reason of such happening or
action be entitled to determine this lease nor shall the Lessee
have any right of action or claim for compensation or damages
against the Lessor in respect thereof.
15.9. Trade Practices Act
It is hereby agreed by and between the parties hereto that these
presents or any instrument incorporating the same or collateral
thereto and all the provisions hereof are to be read and
construed subject to the provisions of the Trade Practices Act,
1974 and to the extent (if any) that any such provisions or any
part thereof would but for this clause be wholly or in Part void
or illegal or would have an operation or effect which would
render any other provision hereof or these presents wholly or in
part void or illegal or unenforceable such provisions or such
part thereof shall constitute no part of these presents and
these presents shall be read and construed as if the same had
never been inserted herein.
15.10. No Representations or Warranties
The terms and conditions set out in this lease contain the
entire agreement between the parties and the notwithstanding any
negotiations or discussions prior to the execution hereof. The
Lessee acknowledges that he was not induced to enter this lease
by any representation verbal or otherwise made by the Lessor
other than as set out in this agreement
27
25
15.11. Representation as to suitability of business
The parties acknowledge that the Lessor does not represent that
the premises or building of which the same form part are
suitable for the business of the Lessee whether referred to
herein or otherwise
15.12. Lessor not in default in some circumstances
Notwithstanding anything hereinbefore contained or implied to
the contrary, the Lessor shall not be deemed in default of the
observance and/or performance of its obligations under this
lease unless the Lessee gives notice to the Lessor of such
default within a reasonable time thereafter to take proper steps
to rectify such default.
15.13. Emergencies
Notwithstanding any other provision of this Lease in the event
of an emergency or service malfunction the Lessee, after having
notified the Lessor, may contact the relevant service provided
as set out in ITEM 12 of SCHEDULE 1 to arrange for the urgent
repairs of any lifts, escalators, air conditioning equipment,
fire sprinkling systems or any other gas, electricity or water
supply installations or sanitary systems.
16. OPTION OF RENEWAL
16.1. The Lessee if it so desires, may take a renewed lease of the
premises for a further term as specified in ITEM 4 of SCHEDULE 1
hereto from the expiration of the term of this lease only if:
16.1.1. the Lessee serves on the Lessor notice in writing
(herein named "the renewal notice") not less than three
(3) calendar months before the end of this lease of its
intentions to exercise this option, and
16.1.2. there is at the time of service of the renewal notice no
outstanding rent or outgoings and shall in the meantime
duly and punctually pay the rent reserved by this lease
at the times herein appointed for the payment thereof,
and
16.1.3. at the time of the service of the renewal notice the
Lessee is not in breach of any obligation, condition or
clause of this lease which have not been remedied in
accordance with the terms and conditions set out by this
lease or if in breach thereof such breaches have been
remedied and shall duly perform and observe the
covenants and agreements by and on the part of the
Lessee contained in this lease up to the expiration of
the term of this lease.
16.2. If this option has been duly exercised, the Lessor will at the
cost of the Lessee
28
26
demise to the Lessee the said premises hereby for a further term
as specified in ITEM 4 of SCHEDULE 1 hereto from the expiration
of the term hereby granted AND the renewed lease shall be on the
same terms and conditions as this lease except this clause shall
be omitted and the clause in relation to rent and the
commencement and termination dates.
17. GUARANTEE
17.1. Guarantee of Guarantor
The Guarantor named in ITEM 9 of SCHEDULE 1 hereto hereby
guarantees to the Lessor all monies due and owing according to
the terms of this lease and the due performance and observance
by the Lessee of all the covenants, terms and provisions
contained or implied in this lease and on the part of the Lessee
to perform and observe.
17.2. Circumstance where the Lessor's Rights Not to be Affected
The rights remedies of the Lessor and the liability of the
Guarantor pursuant to this lease shall not be affected by any
one or more of the following, all of which the guarantor
approves:
i. The granting of any credit, forbearance or concession by
the Lessor to the Lessee or the guarantor
ii. Any variation of this lease or any extended or renewed
lease
iii. Any extension or renewal of this lease or any holding
over after the term or other continued occupation of the
premises by the Lessee
iv. Any compromise, release, discharge, abandonment, waiver
or variation of any security held by the Lessor or right
of the Lessor against the Lessee.
v. Any assignment of the lease or sublease of the premises
or any part thereof
vi. Any determination of the lease (whether by affluxion of
time, reentry, forfeiture, surrender or otherwise)
vii. Where the Lessee is a person - Any death or disability,
bankruptcy deed of arrangement, assignment or
composition for the benefit of creditors affecting the
Lessee or the guarantor.
viii. Where the Lessee is a company - Any winding-up, scheme
of arrangement or the appointment of a receiver and
manager or official management affecting the Lessee or
any guarantor
ix. Where the guarantor is more than one - the fact that one
or more of the persons named herein as guarantor never
executes this lease as guarantor or that the execution
of this lease by one or more of such person (other than
the person sough to be made liable hereunder) is or may
become unenforceable, void or
29
27
voidable.
x. Where the guarantor is more than one then each guarantor
is jointly and severally liable to monies hereby agreed
to be paid and the due performance and observance by the
Lessee of all the covenants, terms and provisions
contained or implied in this lease and on the part of
the Lessee to perform and observe
17.3. Agreement by Guarantor as to Statutory Avoidance
Any payment made to the Lessor and later avoided by any
statutory provision will be deemed not to have discharged the
guarantor's liability and in any such event the Lessor, the
Lessee and the guarantor will be restored to the rights which
each respectively would have had if the payment had not been
made.
17.4. Disclaimer
If there should be any disclaimer of this lease by a liquidator
of the Lessee, the guarantor's guarantee shall stand for the
residue of the term which would have remained if there had been
no disclaimer
17.5. Guarantor not to Claim in Liquidation
The guarantor shall not claim in any liquidation, composition,
arrangement or assignment affecting the Lessee until the Lessor
has received one hundred (100) cents in the dollar in respect of
the moneys due, owing and payable by the Lessee or the Lessor.
18. DISPUTES
18.1. Dispute
If a dispute arises out of or relates to this lease (including
any dispute as to the meaning, performance, validity, subject
matter, breach or termination of the lease or as to any claim in
tort, in equity or pursuant to any statute) (herein called
"Dispute"), any court or arbitration proceedings shall not be
commenced by or against the Lessor, Lessee, their successors or
assigns, any guarantor, mortgagee, or other party bound by this
lease, relating to the Dispute ("the parties") unless the
parties have complied with this clause, except where a party
seeks interlocutory relief.
18.2. Notice of Dispute
The party claiming that a dispute has arisen under or in
relation to this lease, must give written notice to the other
parties to the dispute specifying the nature of the dispute. On
receipt of the notice, the parties to the dispute must within
seven (7) days seek to resolve the dispute.
30
28
18.3. Mediation
18.3.1. If the dispute is not resolved within seven (7) days or
within such further period as the parties agree, then
the dispute is to be referred to the Australian
Commercial Disputes Centre ("ACDC").
18.3.2. In the event that the dispute is referred to the ACDC,
the parties agree to mediate the dispute in accordance
with the mediation rules of the ACDC
18.3.3. The parties agree that the ACDC will select a mediator
and determine the mediator's remuneration.
18.3.4. The parties agree to share all costs in relation to the
mediation provided by ACDC.
18.3.5. The parties may, but are not required, to enter into an
agreement before mediating a dispute.
18.3.6. If any procedural aspects are not specified sufficiently
in this clause, the parties agree to conduct the
mediation regarding this aspects in accordance with the
determination of the mediator whose decision regarding
those aspects is final and binding on the parties.
18.3.7. If a party is an individual, that individual must attend
the mediation. If the party is a company, an authorised
company representative must attend the mediation. This
person must have authority to settle the matter. Each
party is entitled to bring its legal representative and
other people with information or knowledge relevant to
the resolution of the dispute.
18.3.8. From the time when the notice of dispute is served, the
Lessor shall not take action to terminate this lease, by
physical re-entry or otherwise, until after the
conclusion of the mediation.
19. GOODS AND SERVICES TAX
Notwithstanding any provision of this Lease, if a goods and services
tax, value added tax or similar tax ("GST":-
- is introduced in Australia by the Commonwealth Government or any
State or Territory Government; and
- comes into effect during the term of this Lease,
to the extent to which the Lessor is liable for an amount of GST in
connection with the supply of any goods, services or of anything other
than goods or services "THE AFFECTED SUPPLIES'), the Lessor may add such
amount of GST to the agreed price of all affected
31
29
supplies (including to the rent) in respect of which the Lessor issues
an invoice which enables the Lessee to claim a credit or refund GST. The
Lessee in paying consideration for the affected supplies under this
Agreement will pay the agreed price plus such an amount of GST
The COMMON SEAL of
MOUREBEN NOMINEES PTY. LTD /s/ [signature is illegible]
(ACN 001 923 002) was hereunto --------------------------------
affixed by order of the Board of Directors Director/Secretary
in the presence of:
/s/ [signature is illegible]
--------------------------------
Director
The COMMON SEAL of /s/ [signature is illegible]
CHIP APPLICATION TECHNOLOGIES --------------------------------
LIMITED (ACN 057 883 333)
was hereunto affixed by order of Director/Secretary
the Board of Directors in the presence of:
/s/ DAVID MAC SMITH
--------------------------------
Director
32
30
SCHEDULE ONE
ITEM 1 BUILDING: 68-72 Wentworth Avenue, Sydney
PREMISES: Whole of Level 4, 68-72 Wentworth Avenue,
Sydney
ITEM 2 COMMENCEMENT
& TERMINATION DATES
(Clause 3.1)
Commencement Date ("CD") 15 December 1999
Termination Date ("TD") 14 December 2003
ITEM 3 PERIOD OF LEASE 4 YEARS
ITEM 4 OPTIONS 4 YEARS
(Clause 16)
ITEM 5 RENT REVIEW: DATESMETHOD
(Clause 3.2 and 3.4) CD $123,700
1st anniversary $129,885
2nd anniversary $136,070
3rd anniversary $142,874
Commencement
date of Option $142,874
1st anniversary of Option Market review
2nd anniversary of Option Same as
previous year
3rd anniversary of Option Market review
ITEM 6 RENT PAYABLE During the first year of the Lease by monthly instalments of
$10,308.33 in advance beginning 3 months from the CD
and thereafter by monthly instalments equal to one twelfth
of the yearly rental as determined under Clause 3 of the
Lease on the first day of each month.
ITEM 7 USE OF PREMISES Commercial Office
(Clause 7)
ITEM 8 INCLUSIONS Nil
ITEM 9 GUARANTORS
(Clause 17) Nil
ITEM 10 BANK GUARANTEE Three (3) months gross rental from time to time
(Clause 14)
ITEM 11 OUTGOINGS 16.67% of increases in Outgoings from the Base year
(Clause 4) using July 1998 to June 1999 as the Base Year.
33
31
ITEM 12 SERVICE PROVIDERS Service Details
(Clause 15.9) Air conditioning maintenance
Lift maintenance
Fire Sprinkler maintenance
Plumber
Electrician