Exhibit 3(9)
BOSTON TOWER PTY LTD
(ACN 071 187 187)
("the Lessor")
- and -
DYNAMIC DIGITAL DEPTH (AUSTRALIA) PTY LTD
(ACN 060 154 949)
("the Lessee")
- and -
DYNAMIC DIGITAL DEPTH INCORPORATED
("the Guarantor")
-------------------------------------------------
LEASE
6-8 BRODIE HALL DRIVE TECHNOLOGY PARK
-------------------------------------------------
Solomon Brothers
Solicitors
Level 40, Exchange Plaza
2 The Esplanade, Perth WA 6000
Ph: 9221 5888 Fax: 9221 5955
Ref: BCD/DHS/6480150
TABLE OF CONTENTS
Clause Subject Matter
1. Interpretation
2. Lease and Rent
3. Lessee's Covenants
3.1 Payment of Rent
3.2 Outgoings
3.3 Power Telephone and Other Services
3.4 Payment of Costs
3.5 Indemnities
3.6 Insurance
3.7 Evidence of Insurance and Renewal
3.8 Voiding Insurance Policies
3.9 Hazards
3.10 Repairs and Maintenance
3.11 Painting
3.12 Cleaning
3.13 Further Repairs and Maintenance
3.14 Malfunctions in the Premises
3.15 Protection of Floor coverings
3.16 No alterations or Additions
3.17 Legislation Orders and Regulations
3.18 Permitting Lessor to Enter and Inspect
3.19 Lessor's Rights to Repair
3.20 Air-Conditioning Plant
3.21 No Auction Sales
3.22 No Overloading
3.23 No Sign Antenna or Amplifier
3.24 Keeping Authorised Signs in Good Order
3.25 Nuisance
3.26 Equipment Restrictions
3.27 No Dropping or Throwing
3.28 Sanitary Appliances
3.29 Use of Premise
3.30 Town Planning
3.31 Lessee's Representative
3.32 Access to Premises
3.33 Assignment and Subletting
3.34 Lessee's Liabilities to Continue
3.35 Caveats
3.36 Give Notices
3.37 Permit Intending Tenants or Purchasers to Inspect
3.38 Remove Fixtures and Fittings
3.39 Keep Secure
3.40 Yield Up
4. Lessor's Covenants
4.1 Quiet Enjoyment
4.2 Mortgagee's Consent
4.3 Lessor's Consent
4.4 Lessor entering the Premises
4.5 Payment of Outgoings Not the Responsibility of the Lessee
4.6 Structural Repairs
4.7 Structural Works
5. Mutual Covenants
5.1 Damages
5.2 Default Provisions
5.3 Essential Terms
5.4 Damage to the Premises
5.5 Exclusion of Warranties
5.6 Ownership of Fixtures and Fittings
5.7 Holding Over
5.8 Moratorium
5.9 Severance
5.10 Waiver
5.11 Service of Notices
5.12 Option of Renewal
5.13 Arbitration
5.14 Special Conditions
5.15 State Planning Commission Approval
5.16 Governing Law
5.17 Strata Titles Act
5.18 Common Areas, Variable Outgoings
6. Power of Attorney
7. Guarantee
7.1 Guarantee and Indemnity
7.2 Unlimited Liability
7.3 Continuing Guarantee and Indemnity
7.4 Preservation of Guarantor's Liability
7.5 Suspension of Guarantor's Rights
7.6 No Deduction from Payments
7.7 Payments in Gross
7.8 Securities
7.9 Other Securities and Obligations of Guarantor
7.10 Ownership of this Document
7.11 Non-Liability of other Persons
7.12 Reinstatement of the Lessor's Rights
7.13 Notices
7.14 Certificate as to the Secured Moneys
7.15 Application of Moneys
7.16 Acknowledgment by Guarantor
7.17 Interpretation
The Schedule
THIS LEASE is made on the day 19 .
BETWEEN:
BOSTON TOWER PTY LTD (ACN 071 187 187) of 11 Grove End Ridge Mt. Claremont in
the State of Western Australia ("the Lessor");
- - and -
DYNAMIC DIGITAL DEPTH (AUSTRALIA) PTY LTD (ACN 060 154 949) of 41 Walters Drive,
Herdsman Business Park, Osborne Park in the State of Western Australia ("the
Lessee");
- - and -
DYNAMIC DIGITAL DEPTH INCORPORATED of care of Suite 1600, 407 Second Street,
S.W. Calgary, Canada ("the Guarantor").
WHEREAS:
A. The Lessor is the registered proprietor of an estate in fee simple in
the Land on which is constructed the Premises.
B. At the request of the Guarantor and the Lessee the Lessor has agreed to
lease and the Lessee has agreed to take on lease the Premises for the
Term on the terms and conditions contained herein.
NOW THIS DEED WITNESSES:
1. INTERPRETATION
1.1 In this Lease unless the context otherwise requires the following
terms shall have the following meanings:
"AIR-CONDITIONING PLANT" means any plant, machinery or equipment
for heating, cooling or circulating air or water provided or
installed in the Premises by the Lessor;
"COMMENCEMENT DATE" means the date specified in Item 2 of the
Schedule;
"COMMON PROPERTY" means the common property comprised in the Strata
Plan;
"CORPORATION" means any body corporate;
"CURRENT MARKET RENTAL VALUE" means the current market rental value
specified in Item 9 of the Schedule;
"EXPIRATION DATE" means the date specified in Item 2 of the
Schedule;
"EXTENDED TERM" means the term (if any) specified in Item 7 of the
Schedule;
"FITOUT WORKS" means those works to be carried out by the Lessee to
prepare the Premises
for occupation and use by the Lessee, details of which shall be set
out in plans and specifications to be approved by the parties and
signed by them to evidence their approval;
"GUARANTOR" if a natural person includes the Guarantor and the
executors and administrators of the Guarantor and if a corporation
includes the successors and assigns of the Guarantor;
"INSTITUTE OF VALUERS" means the Australian Institute of Valuers
and Land Economists (Inc.) (Western Australian Division) or if that
body should cease to exist any other body which the Lessor may
notify the Lessee in writing from time to time is to be the
Institute of Valuers for the purposes of this Lease;
"LAND" means the land specified in Item 1 of the Schedule;
"LEASE" means this lease and the Schedule;
"LESSEE" if a natural person includes the Lessee and the executors
administrators and permitted assigns of the Lessee and if a
Corporation includes the Lessee and its successors and permitted
assigns and in either case where not repugnant to the context
includes the Lessee's Employees or Visitors;
"LESSEE'S COVENANTS" means the covenants terms and conditions
herein expressed or implied to be observed or performed by the
Lessee;
"LESSEE'S EMPLOYEES OR VISITORS" means every employee of the Lessee
and the Lessee's agents customers clients visitors invitees
licensees contractors and any other person at any time upon the
Premises;
"LESSEE'S FITTINGS" means all those fixtures, fittings and
furnishings comprising part of the Fitout Works;
"LESSOR" means the Lessor and its successors and assigns and where
not repugnant to the context its employees and agents;
"LESSOR'S AGENT" means any Person or Corporation which the Lessor
may from time to time notify the Lessee in writing is an agent of
the Lessor;
"LESSOR'S EXPENSES" means the Lessor's expenses of operating,
repairing, or maintaining a building of which the Premises forms a
part;
"LESSOR'S PURPOSES" means the passage or flow of water gas fuel
electricity sewerage garbage sullage air conditioning heating
cooling and ventilation telephone public address fire detection and
protection and other services in or about or through above or below
the Premises;
"LOCAL OR PUBLIC AUTHORITY" means every Governmental or
Semi-Governmental body, authority or commission, Municipal Council,
Health Board, Health Commissioner, Water Authority, Water Sewerage
and Drainage Board, Metropolitan Water Board, Fire Brigades Board,
Insurance Council and every and any other board person or authority
whatsoever now or hereafter exercising under any Act or by-law any
control or jurisdiction over or
power in connection with the Premises or any part thereof or
with any business now or hereafter carried on thereon or with any
water gas fuel electricity sewerage garbage sullage heating cooling
ventilation or other services in or about the Premises and every
officer or person acting under the authority of any Act by-law or
Local or Public Authority;
"OUTGOINGS" means the outgoings specified in Item 8 of the
Schedule;
"PERSON" means a natural person or corporation;
"PREMISES" means the premises (if any) specified in Item 1 of the
Schedule erected on the land together with the fixtures fittings
chattels furnishings plant machinery and equipment of the Lessor
(if any) therein from time to time details of which or some of
which are specified in Item 1 of the Schedule;
"PRESCRIBED RATE" means the rate of interest specified in Item 4 of
the Schedule;
"RENT" means the rent specified in Item 3 of the Schedule as
subsequently reviewed and varied pursuant to the provisions of this
Lease;
"RENT REVIEW DATE" means each of the dates specified in Item 5 of
the Schedule;
"SCHEDULE" means the schedule to this Lease;
"STRATA COMPANY" means the owners of the building and its
successors created upon the registration of the Strata Plan;
"STRATA COMPANY BY-LAWS" means Parts I and II of the By-laws of the
Strata Company as adopted by the Strata Company and includes any
amendments thereto;
"STRATA PLAN" means a Strata Plan registered or to be registered
pursuant to the provisions of the Strata Titles Act and all matters
contained or endorsed upon or annexed to the Strata Plan and
includes any amendments thereof;
"TERM" means the term of this Lease specified in Item 2 of the
Schedule which term shall commence on the Commencement Date and
expire on the Expiration Date and includes any extension or renewal
of the Term; and
"VALUER" or "VALUERS" means a valuer of not less than five (5)
years experience in valuing commercial properties who is a member
of the Institute of Valuers nominated by the President for the time
being of the Institute of Valuers at the request of the Lessor.
1.2 In this Lease unless the context otherwise requires:
1.2.1 a reference to any Act shall include all amendments or
re-enactments thereof for the time being in force;
1.2.2 any covenant entered into by more than one person
shall be deemed to have been entered into by them and
any two or more of them jointly and by each of them
severally; and
1.2.3 the captions and the headings to the Clauses of this
Lease are for index purposes only and this Lease is to
be read and construed as though the captions and
headings were not part of this Lease and without
reference to the captions and headings.
1.3 The covenants herein on the part of the Lessee to be performed and
observed shall be deemed to be made by the Lessee to the intent
that such obligations may continue throughout the whole of the Term
and during any period of holding over and be binding upon and
enforceable not only against the Lessee but also against any
occupier whomsoever for the time being of the Premises or any part
thereof.
2. LEASE AND RENT
2.1 LEASE
The Lessor leases to and the Lessee takes the Premises for the Term
subject to the covenants implied by the Transfer of Land Act 1893
except as herein amended or negatived and upon and subject to the
terms, covenants, conditions and stipulations contained herein
PROVIDED THAT (without limiting any other right hereby granted or
becoming vested in the Lessor) the Lessor shall be entitled to
access to and the rights reserved in respect of the Premises in the
terms hereof.
2.2 RENT
The Lessee shall pay the Rent for the Premises to the Lessor in the
manner provided in clause 3.1.
2.3 DATES FOR PAYMENT OF RENT
The Rent shall be paid in advance by equal monthly instalments on
the dates specified in Item 3 of the Schedule.
2.4 RENT REVIEW
[intentionally deleted]
3. LESSEE'S COVENANTS
The Lessee COVENANTS with the Lessor that:
3.1 PAYMENT OF RENT
The Rent shall be paid by the Lessee free of deductions to the
Lessor at the times, in the manner and at the address in Perth
referred to in Item 3 of the Schedule or to such other place or to
such agent or to such bank or other financial institution account
as the Lessor shall from time to time specify by notice in writing
to the Lessee.
3.2 OUTGOINGS
3.2.1 The Lessee shall throughout the Term duly and
punctually pay the Outgoings.
Where any Outgoings are not separately assessed or
charged in respect of the Premises the Lessee shall
pay the same proportion thereof as the area of the
Premises bears to the net lettable area of the land or
premises the subject of the assessment or charge. At
the commencement of the Term and at the expiration or
sooner determination thereof the Outgoings shall (if
necessary) be apportioned as between the Lessor and
the Lessee.
3.2.2 In connection with payment of the Outgoings the Lessor
may serve on the Lessee notice of the Outgoings or any
of them and the Lessee shall pay to the Lessor (or as
the Lessor may otherwise direct) the amount of the
Outgoings stated in the notice and shall indemnify and
keep indemnified the Lessor against all claims,
penalties, fines or charges arising from late payment
of any of the Outgoings.
3.3 POWER TELEPHONE AND OTHER SERVICES
3.3.1 The Lessee shall pay not later than the due date for
payment specified in the first account or demand
received in respect thereof all charges for water,
excess water, gas, electricity, fuel, telephone or
other services, utilities or facilities (in respect of
meter rental use or consumption calls reconnection
relocation or otherwise) relating to the Premises or
the use or occupation thereof.
3.4 PAYMENT OF COSTS
The Lessee shall pay on demand to the Lessor:
3.4.1 all reasonable legal costs charges and expenses
incurred by the Lessor as a result of or attributable
to any default by the Lessee in observing or
performing any of the Lessee's Covenants including
without limitation all costs charges expenses and fees
relating to the preparation and service of a notice
under Section 81 of the Property Law Act 1969
requiring the Lessee to remedy any breach of any of
the Lessee's covenants notwithstanding that forfeiture
for the breach shall be avoided otherwise than by
relief granted by the Court;
3.4.2 the costs of the Lessor's solicitors of and incidental
to the instructions for and drawing and engrossing and
stamping and registering this Lease and all
counterparts thereof and all negotiations and drafts
in respect thereto;
3.4.3 interest at the Prescribed Rate on all Rent and other
moneys payable by the Lessee to the Lessor under this
Lease but unpaid for more than fourteen (14) days from
the respective due date computed on a daily basis on
the amount from time to time remaining owing from and
including the due date until the date of payment.
3.5 INDEMNITIES
The Lessee shall use occupy and keep the Premises at the risk of
the Lessee in all respects and releases to the full extent
permitted by law the Lessor its employees agents and contractors
from all costs claims actions proceedings demands expenses
judgments damages or losses of any kind whatever resulting from or
attributable to any accident damage loss death or injury occurring
at in or on or in the vicinity of the Premises except to the extent
that the same is caused by any act, neglect, default or omission on
the part of the Lessor its employees agents or contractors. Without
limiting the generality of the foregoing the Lessee shall indemnify
and keep indemnified the Lessor from and against:
3.5.1 all costs claims actions proceedings demands expenses
judgments damages and losses suffered or incurred by
the Lessor in connection with or resulting from the
loss of life of or personal injury to any person or
damage to any property wherever occurring arising from
or out of or attributable to any occurrence in or
about the Premises occasioned wholly or in part by any
act neglect default or omission by the Lessee or any
of the Lessee's Employees or Visitors at in or on or
in the vicinity of the Premises; and
3.5.2 any damage to the Premises or any other land or
building or other property arising from or
attributable to the negligent use or misuse by the
Lessee or any of the Lessee's Employees or Visitors of
any fixtures and fittings furnishings plant or
equipment used or required in connection with the
Lessor's Purposes or to the negligent use, misuse,
waste or abuse of the water, gas, fuel, electricity,
or other services or utilities or facilities in the
Premises.
3.6 INSURANCE
3.6.1 Notwithstanding Item 8(b) of the Schedule the Lessee
shall at the Lessee's expense effect and at all times
maintain with a public insurance office approved by
the Lessor on behalf of the Lessee and the Lessor for
their respective rights and interests:
3.6.1.1 a policy to cover all plate glass (if
any) in the Premises against damage or
destruction to the full insurable value
thereof; and
3.6.1.2 a public liability policy with a cover of
not less than TEN MILLION DOLLARS
($10,000,000) or any increased sum which
the Lessor may from time to time specify
in respect of any one occurrence. The
policy of insurance shall cover all
claims demands proceedings judgments
damages costs and losses of any nature
whatsoever in connection with the loss of
life of and or personal injury to any
person and or damage to any property
(wheresoever occurring) arising from or
out of any occurrence at or in the
vicinity of the Premises or any part
thereof or occasioned wholly or in part
by any act neglect default or omission by
the Lessee or by the Lessee's Employees
or Visitors.
3.6.2 All moneys recovered in respect of any insurance under
paragraphs 3.6.1.1 and 3.6.1.2 above shall be
forthwith expended by the Lessee in the satisfaction
reinstatement or replacement of those items for which
the moneys are received to the extent that those
moneys are sufficient for the purpose and the Lessee
shall make up any deficiency from the Lessee's own
moneys.
3.7 EVIDENCE OF INSURANCE AND RENEWAL
The Lessee shall pay not later than the date for payment specified
in the first premium
notice or demand received in respect thereof all premiums in
respect of the insurances to be effected and maintained by the
Lessee as herein provided and on demand shall produce any evidence
of the policies and of the renewal thereof which the Lessor may
from time to time require.
3.8 VOIDING INSURANCE POLICIES
The Lessee shall not at any time during the Term do, permit or
suffer to be done any act matter or thing upon the Premises whereby
any insurances in respect of the Premises may be vitiated or
rendered void or voidable or whereby the rate of premium on any
insurance shall be liable to be increased. If the Lessee shall do
or permit to be done any act matter or thing which has the effect
of invalidating or avoiding any policy of insurance taken out by
the Lessor or the Lessee then the Lessee shall be responsible for
any damage or loss which they may suffer or incur as a result
thereof and shall pay to the Lessor any increased amount of premium
over the existing premium which may be charged on any insurance
covering the Premises (and anything contained therein) if the
increased amount is caused by the nature of the business from time
to time carried on by the Lessee or other occupier of the Premises
or by reason of any act or omission of the Lessee or other occupier
of the Premises.
3.9 HAZARDS
The Lessee shall not without obtaining the Lessor's prior written
consent bring onto or keep or permit to be brought onto or kept in
or about the Premises any article thing or substance of a dangerous
hazardous or inflammable nature or permit any conduct in or about
the Premises which shall or may increase the rate of any premium
payable in respect of any policy of insurance in relation to the
Premises. If:
3.9.1 in contravention of the above any policy of insurance
is invalidated avoided or the payment of any moneys
thereunder refused then without prejudice to any other
claims or rights of the Lessor against the Lessee or
any other person in respect thereof the Lessee shall
pay on demand the full amount of any damage loss or
deficiency as the case may be incurred by the Lessor
as a result of or attributable to the breach; and
3.9.2 as a result of a contravention of the above any extra
premium shall be payable in respect of any insurance
policy the Lessee shall forthwith pay all extra
premiums.
3.10 REPAIRS AND MAINTENANCE
The Lessee shall at the Lessee's expense:
3.10.1 keep the Premises and all additions thereto the
exterior and interior entrances thereto and all plate
glass (if any) all sewerage water electrical and
plumbing installations fixtures and fittings all
Air-Conditioning Plant floor coverings windows
partitions fixtures fittings plant equipment and
furnishings including doors door locks and fittings
therein clean and in good substantial and functional
repair order and condition (damage by fair wear and
tear or any risk insured against to the extent of the
moneys recovered under any insurance cover
excepted);
3.10.2 repair and make good any damage to the Premises or any
fixtures and fittings furnishings plant and equipment
respectively comprised therein resulting from or
attributable to the want of care negligence misuse or
abuse by the Lessee or any of the Lessee's Employees
or Visitors or from any breach of any of the Lessee's
Covenants; and
3.10.3 replace forthwith in the Premises all electric light
fittings light bulbs globes and fluorescent tubes
which may become damaged broken or which shall fail to
function,
Provided that nothing in this clause shall require the Lessee to
carry out any structural or capital maintenance, replacement or
repair except where rendered necessary by any act or omission of
the Lessee or the Lessee's Employee's or Visitors or where any
structural or capital maintenance replacement or repair is
necessary by virtue of any works carried out to the Premises by the
Lessee or caused to be carried out by the Lessee.
3.11 PAINTING
Unless specified to the contrary in Item 10 of the Schedule during
the final two (2) months of the Term or upon the earlier
determination of the Term and if the Term is extended or renewed
during the last two (2) months of any extended or renewed term or
upon the earlier determination thereof the Lessee shall paint,
paper and decorate all those parts of the interior and exterior of
the Premises as have been previously painted papered or decorated
in a good and tradesmanlike manner and with good quality and
suitable materials in colours and designs previously approved of by
the Lessor.
3.12 CLEANING
The Lessee shall at the Lessee's expense:
3.12.1 keep the Premises and its entrances and surrounds in a
thorough state of cleanliness and not allow to
accumulate or remain therein or thereabouts any
discarded rubbish papers cartons boxes containers or
other waste products and shall leave rubbish
containers outside the Premises only in those areas
and at those times and for those periods from time to
time prescribed for that purpose by the Lessor;
3.12.2 keep the Premises free and clear of all rodents vermin
insects birds animals termites and other pests and if
the Lessee fails to do so the Lessee shall if and so
often as necessary employ pest exterminators approved
by the Lessor to carry out the necessary work; and
3.12.3 if required by the Lessor permit access by any
cleaning contractor and its employees and
sub-contractors nominated by the Lessor to the
Premises at all necessary times for cleaning purposes.
3.13 FURTHER REPAIRS AND MAINTENANCE
The Lessee shall at the Lessee's expense:
3.13.1 employ forthwith upon the same becoming necessary such
qualified tradesmen or contractors approved by the
Lessor to remedy any malfunction in any fixtures
fittings furnishings plant and equipment;
3.13.2 clean regularly any grease traps (whether within the
Premises or not) serving the Premises;
3.13.3 keep and maintain all gardens, lawns, court yards,
grounds and yards (if any) in a good, clean, neat and
tidy state of repair and condition; and
3.13.4 keep the Lessor indemnified in respect of all the
matters referred to in paragraphs 3.13.1, 3.13.2 and
3.13.3 above,
Provided that nothing in this clause shall require the Lessee to
carry out any structural or capital maintenance, replacement or
repair except where rendered necessary by any act or omission of
the Lessee or the Lessee's Employee's or Visitors or where any
structural or capital maintenance replacement or repair is
necessary by virtue of any works carried out to the Premises by the
Lessee or caused to be carried out by the Lessee.
3.14 MALFUNCTIONS IN THE PREMISES
The Lessee shall pay to the Lessor forthwith upon demand the
reasonable cost of remedying any malfunction in or damage to any of
the Lessor's fixtures fittings furnishings plant and equipment in
the Premises caused by or contributed to by any act neglect or
default on the part of the Lessee or the Lessee's Employees or
Visitors.
3.15 PROTECTION OF FLOOR COVERINGS
3.15.1 The Lessee shall at the Lessee's expense:
3.15.1.1 keep and maintain any floor coverings
from time to time installed by the Lessor
in the Premises in good clean and
substantial repair and condition (damage
by fair wear and tear and by any risk
insured against to the extent of the
moneys recovered under any insurance
cover excepted); and
3.15.1.2 protect the floor coverings from
excessive wear by the provision of any
protective devices which the Lessor may
from time to time reasonably require.
3.15.2 The Lessee shall not without obtaining the prior
written approval of the Lessor cut alter or replace
any floor coverings installed by the Lessor in the
Premises or install any other floor coverings therein.
3.16 NO ALTERATIONS OR ADDITIONS
3.16.1 The Lessee shall not without obtaining the prior
written approval of the Lessor and all necessary Local
or Public Authorities (which approval shall not be
unreasonably withheld):
3.16.1.1 make or permit to be made any alterations
or additions in the construction or
arrangement of the Premises (including
without limitation any partitions or any
major plumbing electrical airconditioning
emergency or other installations or
services in or used in connection with
the Premises);
3.16.1.2 cut maim or injure any of the walls roofs
partitions timbers doors or floors of the
Premises; or
provided that the Lessee may at any time and from time
to time erect or install any internal partitions
fixtures or fittings in the Premises without having to
obtain the prior written approval of the Lessor.
3.16.2 Any works approved by the Lessor shall be carried out:
3.16.2.1 only by contractors or tradesmen approved
of by the Lessor (which approval shall
not be unreasonably withheld) and in
accordance with plans specifications and
schedules of works materials and finishes
approved in writing by the Lessor before
any works are commenced; and
3.16.2.2 at the Lessee's expense in all respects
including the reasonable costs of any
architects builders or other qualified
persons consulted by the Lessor in
considering any proposals and in
examining the progress and completion
thereof and all costs in relation to the
relocation or alteration of or adjustment
to any major plumbing electrical
air-conditioning emergency or other
installations and services affected by
those works.
3.17 LEGISLATION ORDERS AND REGULATIONS
3.17.1 The Lessee shall at the Lessee's expense duly and
punctually comply with and observe and indemnify the
Lessor in respect of all present and future Acts
(State or Federal) ordinances orders regulations and
by-laws and all orders requirements and notices from
or by any Local or Public Authority which relate or
apply to the Premises or any part thereof or the use
or occupancy thereof or the number or sex of the
persons working in or from or at any time occupying or
visiting the Premises including the carrying out of
any repairs alterations or works to or the provision
of fire alarms or other emergency services in or for
the Premises.
3.17.2 If any compliance or observance includes a requirement
for structural alterations or additions to the
Premises the Lessee's obligations hereunder shall in
respect thereof only apply thereto insofar as they
relate to the Lessee's business or the use to which
the Premises are put by the Lessee or the number or
sex of the Lessee's Employees or Visitors.
3.17.3 All works which the Lessee is required to carry out
shall be carried out only by
contractors and tradesmen approved of by the Lessor
and in accordance with plans specifications and
schedules of works materials and finishes approved in
writing by the Lessor before any works are commenced.
3.18 PERMITTING LESSOR TO ENTER AND INSPECT
When and so often as the Lessor shall reasonably require the Lessor
may accompanied by a representative of the Lessee enter the
Premises at all reasonable times and upon giving reasonable prior
notice (except in case of emergency) to view the state of repair
and condition thereof and to make any reasonable investigations
which the Lessor may deem necessary to ascertain whether or not
there has been any breach of any of the Lessee's Covenants and to
serve upon the Lessee a notice in writing of any default there
found requiring the Lessee to remedy the default in accordance with
any covenant.
3.19 LESSOR'S RIGHTS TO REPAIR
3.19.1 If the Lessee fails to remedy any breach of any of the
Lessee's obligations to repair under the terms of this
Lease within fourteen (14) days of the date of service
of a notice upon the Lessee requiring the Lessee to
remedy the breach the Lessor without being under any
obligation so to do may itself or by its employees
agents and contractors without further notice enter
the Premises at any reasonable time and to any extent
necessary remain thereon with all necessary plant
equipment and materials and carry out any repairs
which the Lessor shall think fit.
3.19.2 If in the Lessor's opinion any repairs for which the
Lessee is liable are required to be carried out as
emergency repairs the Lessor shall use its best
endeavours to notify the Lessee of its intention to
enter the Premises and carry out emergency repairs and
the Lessor and the Lessor's employees agents and
contractors may to any extent necessary remain on the
Premises at any time to carry out any of those repairs
and in respect of any work carried out by the Lessor
pursuant to this subclause or the preceding subclause
the Lessee shall pay on demand to the Lessor the
reasonable cost and expenses (including interest at
the Prescribed Rate) incurred in making the repairs
and shall indemnify the Lessor from and against any
loss or liability incurred by the Lessor in respect of
the default.
3.20 AIR-CONDITIONING PLANT
Where any Air-Conditioning Plant is provided or installed in the
Premises by the Lessor:
3.20.1 the Lessee shall at all times comply with and observe
the reasonable requirements of the Lessor in relation
to the Air-Conditioning Plant and shall not do, or
permit or suffer to be done, anything in relation to
the same or otherwise which might interfere with or
impair the efficient operation of the Air-Conditioning
Plant;
3.20.2 the Lessee shall allow the Lessor and the Lessor's
engineers, mechanics, consultants and workmen at
reasonable times and upon giving reasonable prior
notice to the Lessee to enter and to the extent
necessary to remain on the Premises to examine all or
any of the Air-Conditioning Plant but that in carrying
out such examination the Lessor shall not cause any
undue interference to the
Lessee in the conduct of business in the Premises;
3.20.3 the Lessee shall not cover or obstruct any ducts
inlets or outlets of the Air- Conditioning Plant;
3.20.4 the Lessee shall at all times during the Term keep the
Air-Conditioning Plant in good working order (fair
wear and tear excepted) and shall repair and maintain
the Air-Conditioning Plant whenever required in
accordance with the manufacturer specifications
relating to the same provided that nothing in this
clause shall require the Lessee to carry out any
structural or capital maintenance, replacement or
repair except where rendered necessary by any
deliberate or negligent act or omission of the Lessee
or the Lessee's Employee's or Visitors.
3.21 NO AUCTION SALES
The Lessee shall not hold nor permit any auction fire or bankruptcy
sale in the Premises without obtaining the prior written consent of
the Lessor.
3.22 NO OVERLOADING
3.22.1 The Lessee shall not without obtaining the prior
written consent of the Lessor bring on to or permit to
remain in the Premises any heavy machinery plant or
equipment unless it is reasonably necessary or proper
for the conduct of the Lessee's permitted use of the
Premises but in no event shall any item be of a
nature, size, weight or design as to cause or in the
reasonable opinion of the Lessor be likely to cause
any structural or other damage to the floors walls
pillars ceilings or other parts of the Premises and/or
the Land.
3.22.2 The Lessee shall take all steps reasonably necessary
to ensure that no floors walls pillars ceilings or
other parts of the Premises and/or the Land are broken
over-stressed or damaged by any overloading from any
cause whatsoever and shall observe the maximum floor
loading weights in respect of the respective portions
of the Premises and/or the Land specified from time to
time by the Lessor or the Lessor's Agent.
3.22.3 Before bringing or permitting to be brought into the
Premises and/or the Land any item by which any floor
wall pillar ceiling or other part may be so broken
overstressed or damaged the Lessee shall in writing
inform the Lessor of the Lessee's intention so to do
and shall comply with every direction that the Lessor
may give in respect to the delivery times routing
installation and location of the item and when
appropriate the removal thereof.
3.23 NO SIGN ANTENNA OR AMPLIFIER
3.23.1 The Lessee shall not without obtaining the prior
written consent of the Lessor or the Lessor's Agent
place or permit to be placed or maintained on any
external door wall or window of the Premises any
television or radio antenna or mast or other apparatus
or any sign awning canopy decoration lettering
advertising device
notice matter or thing or place or permit to be placed
or maintained in or on any part of the Premises any
radio or television receiver loudspeaker amplifier or
other similar device (other than any emergency
communication apparatus installed by the Lessor)
visible or audible from outside of the Premises or
place or maintain in any place visible from the
exterior of the Premises any decoration lettering or
advertising matter of any nature which does not comply
in every respect with the requirements of all statutes
regulations by-laws and orders applicable thereto. The
Lessor shall not unreasonably withhold its consent or
approval to any request made by the Lessee pursuant to
this sub-clause.
3.23.2 Prior to vacating the Premises the Lessee shall at the
Lessee's expense remove any antenna mast apparatus
sign awning canopy decoration lettering advertising
device notice or thing displayed affixed or exhibited
upon or within the Premises and shall make good any
damage or disfigurement caused thereby or by the
removal thereof.
3.24 KEEPING AUTHORISED SIGNS IN GOOD ORDER
The Lessee shall at all times maintain in good order condition and
repair (damage by any risk insured against to the extent of the
moneys recoverable under any insurance cover excepted) and if
appropriate pay all moneys payable under and comply with all
licence or leasing agreements in respect of any television or radio
antenna or mast or other apparatus sign awning canopy decoration
lettering advertising device notice matter or thing approved by the
Lessor in accordance with the above.
3.25 NUISANCE
The Lessee shall not do or permit to be done in or about the
Premises:
3.25.1 anything which may be a nuisance grievance disturbance
or annoyance to the Lessor or to any tenant or
occupier of other premises in the vicinity of the
Premises; or
3.25.2 any act matter or thing whereby a nuisance or anything
in the nature of or which may be deemed to be a
nuisance by any Local or Public Authority body or
person or within the meaning of any Act (State or
Federal) now or hereafter in force or any regulations
or by-laws made thereunder may exist arise or continue
upon or in connection with the Premises or any
business carried on therein or therefrom or the use or
occupation thereof and to abate forthwith any nuisance
or alleged nuisance and carry out and comply with the
provisions of every Act regulations and by-laws and
with every order notice or requirement of any Local or
Public Authority in reference thereto.
3.26 EQUIPMENT RESTRICTIONS
The Lessee shall not without obtaining the prior written approval
of the Lessor (which approval shall not be unreasonably withheld)
use or permit or suffer to be used in or in connection with the
Premises:
3.26.1 any form of lighting heating cooling or ventilation
other than as installed therein
at the commencement of the Term; and
3.26.2 any electrical equipment that does or may overload any
cable switchboard or sub-board through which
electricity is conveyed to or through the Premises or
any part thereof.
3.27 NO DROPPING OR THROWING
The Lessee shall not drop or throw or permit to be dropped or
thrown anything from the Premises.
3.28 SANITARY APPLIANCES
The Lessee shall not use or permit to be used the toilets sinks
drains and other plumbing facilities in the Premises for any
purpose other than that for which they were respectively designed
constructed or provided and shall not deposit or permit to be
deposited therein any sweepings rubbish or other matter.
3.29 USE OF PREMISES
The Lessee shall:
3.29.1 use the Premises only for the purpose of conducting
therein the business described in Item 6 of the
Schedule and shall not without obtaining the prior
written consent of the Lessor use the Premises for any
other purpose;
3.29.2 obtain from any Local or Public Authority any
approvals permits consents or licences required by law
to carry on the Lessee's business from the Premises;
3.29.3 not use or permit to be used the Premises for any
unlawful immoral noxious noisy offensive trade
business occupation or calling; and
3.29.4 not use or permit to be used the Premises for any
residential purposes.
3.30 TOWN PLANNING
The Lessee shall not do or permit to be done anything in breach of
any applicable town planning scheme or zoning or whereby the zoning
or permitted use of the Premises for their present purposes under
any Act by-law order or scheme relating to town planning may be
prejudiced or altered.
3.31 LESSEE'S REPRESENTATIVE
The Lessee shall notify the Lessor and the Lessor's Agent (if any)
of the name address and business and after hours telephone number
of a person to be authorised by the Lessee to control any internal
security system within the Premises to enable the Lessor or the
Lessor's agents or contractors to gain access to the Premises
whenever pursuant to the terms of this Lease access is required or
permitted and to advise the Lessor forthwith in writing of any
change of the nominated person or other particulars.
3.32 ACCESS TO PREMISES
The Lessor shall be entitled by itself and by its employees
consultants inspectors agents and contractors whenever deemed
necessary by the Lessor to enter (and to the extent necessary to
remain on) the Premises at all reasonable times and upon giving
reasonable prior notice to the Lessee with all necessary plant
equipment and materials to erect make excavate lay or install in on
over or under the Premises and to make use of any pipe wire
amplifier light alarm channel drain sump vent duct inlet outlet
plant or machinery or other thing requisite for or in addition to
any of the Lessor's Purposes and to enter upon the Premises at
those times for the purpose of inspecting removing maintaining
replacing repairing servicing altering or adding thereto in or
about the Premises or the walls floors and ceilings thereof and the
Lessor shall cause as little inconvenience disruption or damage to
the Lessee as possible in so doing.
3.33 ASSIGNMENT AND SUBLETTING
3.33.1 The Lessee shall not assign sublet transfer or part
with possession of or mortgage charge or otherwise
encumber the Premises or any part thereof or the
benefit of this Lease or any estate or interest
therein or herein without obtaining the prior written
consent of the Lessor and the provisions of Sections
80 and 82 of the Property Law Act 1969 shall not apply
to this Lease. Subject to the provisions of this
sub-clause the Lessor's consent shall not be
unreasonably withheld if:
3.33.1.1 the Lessee shall prove to the reasonable
satisfaction of the Lessor that the
proposed sub-lessee or assignee is a
respectable responsible and solvent
person of sound financial standing;
3.33.1.2 all Rent and other moneys (and interest)
then due and payable by the Lessee
pursuant to this Lease shall have been
paid;
3.33.1.3 there shall not be at the time the
consent is sought or at the date any
sublease or assignment is to take effect
any subsisting breach of any of the
Lessee's Covenants;
3.33.1.4 in the case of an assignment the assignee
executes a Deed of Covenant whereby the
assignee covenants with the Lessor to
observe and perform all of the Lessee's
Covenants the assignment to be prepared
and approved by the Lessor's solicitors;
3.33.1.5 in the case of a mortgage charge or
encumbrance the encumbrancer enters into
a deed with the Lessor in a form
reasonably required by the Lessor's
solicitors to protect the Lessor in case
of default powers being exercised;
3.33.1.6 the Lessee pays to the Lessor all
reasonable costs and expenses including
legal costs administrative costs stamp
duty and other disbursements incurred or
to be incurred by the Lessor in respect
of the Deed of Covenant and a fee to
cover administrative expenses and the
Lessor's reasonable legal costs;
3.33.1.7 where any proposed assignee is a
Corporation (not being a company whose
shares are listed on any Stock Exchange
in Australia) the directors and principal
shareholder thereof at their expense
execute and complete a Deed of Guarantee
and Indemnity in a form approved by the
Lessor's solicitors in favour of the
Lessor in respect to the payment of all
Rent and the observance and performance
of all of the Lessee's Covenants.
3.33.2 Where the Lessee is a corporation (not being a company
whose shares are listed on any Stock Exchange in
Australia) any change of the beneficial ownership or
substantial shareholding (within the meaning of
Chapter 6.7 of the Corporations Law) in the
corporation or any related corporation (within the
meaning of Section 50 of the Corporations Law) shall
be deemed to be an assignment of the Premises and the
benefit of this Lease and shall be subject to the
terms specified above provided that this clause shall
not apply so long as Dynamic Digital Depth (Australia)
Pty Ltd remains the Lessee.
3.33.3 Notwithstanding any other provision in this Lease so
long as Dynamic Digital Depth (Australia) Pty Ltd
remains the Lessee it shall be entitled to sub-let or
otherwise part with possession of the Premises or any
part thereof provided that:
3.33.3.1 the sub-lessee shall be a person, persons
or corporation approved by the Lessee;
and
3.33.3.2 the parting with possession by Dynamic
Digital Depth (Australia) Pty Ltd shall
not relieve it from any of its
obligations expressed or implied pursuant
to the terms of this Lease.
If at any time Dynamic Digital Depth (Australia) Pty
Ltd grants a sub-lease it shall notify the Lessor of
the sub-lessee's name and address (and after hours
contact number) as soon as is reasonably practicable
thereafter.
3.34 LESSEE'S LIABILITIES TO CONTINUE
The covenants and agreements on the part of any assignee or
sub-lessee with the Lessor expressed or implied in any Deed
evidencing any assignment or sub-lease shall be deemed to be
supplementary to those contained in this Lease and shall not in any
way relieve or be deemed to relieve the Lessee from the Lessee's
liabilities hereunder during the term of the lease and the Extended
Term (if any) of this lease.
3.35 CAVEATS
The Lessee may during the Term lodge a subject to claim caveat
against the Land. The Lessee shall not at any time lodge an
absolute caveat against the Land. The Lessee shall at the
expiration or sooner determination of the Term or upon assigning
this Lease or at any time at the request of the Lessor sign and
lodge at the Lessee's expense a proper registrable withdrawal of
any subject to claim caveat lodged against the Land by the Lessee.
If the Lessee lodges an absolute caveat or fails to withdraw any
subject to claim caveat the Lessee in consideration of the Lessor
granting this Lease to the Lessee irrevocably APPOINTS the Lessor
the agent and attorney of the Lessee to sign and lodge any
withdrawal of caveat the
cost of which shall be borne and paid by the Lessee forthwith upon
demand.
3.36 GIVE NOTICES
The Lessee shall forthwith:
3.36.1 on receipt thereof give to the Lessor copies of any
notice received by the Lessee from any court or Local
or Public Authority relating to the Premises or any
part thereof or the use or occupation thereof;
3.36.2 upon any person dying or receiving any injury in the
Premises or upon any accident occurring to or defect
being found in any sanitary water gas or electric
pipes or wires fixtures fittings plant or equipment or
furnishings in the Premises give to the Lessor written
notice and those full particulars thereof known to the
Lessee; and
3.36.3 give to the Lessor and any appropriate Local or Public
Authority written notice of any infectious illness
occurring on the Premises and shall at the Lessee's
expense thoroughly fumigate and disinfect the Premises
to the satisfaction of the Lessor and those
authorities and otherwise comply with their reasonable
requirements in regard thereto.
3.37 PERMIT INTENDING TENANTS OR PURCHASERS TO INSPECT
3.37.1 At all times within the period of three (3) months
immediately prior to the expiration or sooner
determination of the Term the Lessee shall permit the
Lessor and the Lessor's Agent at all reasonable times
and upon giving reasonable prior notice to the Lessee
to enter the Premises with and exhibit the same to
prospective tenants and the Lessee shall allow the
Lessor to affix and exhibit where the Lessor shall
think fit any notice or sign for reletting the
Premises.
3.37.2 The Lessee shall allow the Lessor and the Lessor's
Agent at reasonable times and upon giving reasonable
prior notice to the Lessee during the Term to enter
the Premises with and exhibit the same to prospective
purchasers and the Lessee shall allow the Lessor to
affix and exhibit where the Lessor shall think fit any
notice or sign for selling the Premises and the Lessee
shall not without obtaining the Lessor's consent
remove deface or obscure any notice or sign nor permit
the same to be removed defaced or obscured.
3.38 REMOVE FIXTURES AND FITTINGS
Before the expiration or sooner determination of the Term the
Lessee shall:
3.38.1 remove from the Premises the Lessee's Fittings; and
3.38.2 remove from the Premises all items which shall have
been erected placed or installed by the Lessee or any
previous tenant or occupier of the Premises after the
date of completion of the Fitout Works (other than any
fixtures and fittings plant equipment and furnishings
which in the reasonable opinion of the Lessor form an
integral part of the Premises including without
limitation all light fittings
located in or affixed to the Premises and nominated as
such by notice in writing by the Lessor to the Lessee
on or before the expiration or sooner determination of
the Term),
and make good to the reasonable satisfaction of the Lessor any
damage whatsoever caused to the Premises by such erection
installation or removal. If required by the Lessor the Lessee shall
also re-alter any alterations made to the Premises after the date
of completion of the Fitout Works so that the Premises are restored
to their condition as at the date of completion of the Fitout
Works. Any fittings fixtures plant equipment and furnishings not
removed by the Lessee either as of right or by requirement of the
Lessor after the expiration or other termination of this Lease
shall be deemed to have been abandoned by the Lessee and shall be
and become the property of the Lessor without any right by the
Lessee to make any claim whatever against the Lessor in respect
thereof.
3.39 KEEP SECURE
The Lessee shall:
3.39.1 use its best endeavours to protect and keep safe the
Premises and any property contained therein from theft
or robbery; and
3.39.2 keep all doors windows and other openings closed and
securely fastened when the Premises are not in use.
3.40 YIELD UP
At the expiration or sooner determination of the Term the Lessee
shall yield and deliver up possession of the Premises to the Lessor
in a good and substantial repair order and condition and state of
cleanliness and decoration consistent with the due and punctual
observance and performance by the Lessee of the Lessee's Covenants
and shall surrender to the Lessor or the Lessor's Agent all keys
cards switching equipment combinations identification cards or
other devices for or enabling the Lessee or the Lessee's Employees
or Visitors to gain access to the Premises or any part thereof.
4. LESSOR'S COVENANTS
4.1 QUIET ENJOYMENT
The Lessor COVENANTS with the Lessee that the Lessee duly paying
the Rent and other moneys hereby reserved and observing and
performing the other Lessee's Covenants shall peaceably and quietly
hold and enjoy the Premises during the Term without any
interruption by the Lessor or any person rightfully claiming
through under or in trust for the Lessor except as herein
authorised.
4.2 MORTGAGEE'S CONSENT
The Lessor shall forthwith obtain the unconditional written consent
to this Lease of all mortgagees under any mortgage registered
against all or any of the Certificates of Title comprising the
Premises.
4.3 LESSOR'S CONSENT
Unless otherwise specifically provided in this Lease in every case
where the Lessee requires a consent or approval of the Lessor:
4.3.1 that consent or approval shall not be unreasonably
withheld; and
4.3.2 the Lessor shall promptly consider the Lessee's
application for that consent or approval provided that
this clause shall not apply to any assignee or
sub-lessee of the Lessee.
4.4 LESSOR ENTERING THE PREMISES
In any case where the Lessor or any person authorised by the Lessor
(including without limitation, any servant agent contractor or
workmen of the Lessor) is entitled under this Lease to enter upon
the Premises, the Lessor and all those persons shall:
4.4.1 except in the case of emergency, give reasonable
notice to the Lessee prior to entering upon the
Premises; and
4.4.2 at all times cause as little inconvenience as is
practicable to the Lessee and its business.
4.5 PAYMENT OF OUTGOINGS NOT THE RESPONSIBILITY OF THE LESSEE
At all times during the term the Lessor shall duly and punctually
pay or cause to be paid all rates taxes and outgoings in respect of
the Premises that are not the responsibility of the Lessee under
this Lease and from time to time and upon request by the Lessee
shall produce to the Lessee such evidence as the Lessee reasonably
requires as to the payment thereof.
4.6 STRUCTURAL REPAIRS
Subject to the provisions of clause 3.10 excluding certain
obligations on the part of the Lessor in this regard, the Lessor
shall at all times during the Term and any extension or holding
over at its own cost and expense, keep the structure of the
Premises in good repair and condition and carry out any structural
maintenance, replacement or repair and make good any damage (except
where rendered necessary by any deliberate or negligent act or
omission of the Lessee or the Lessee's Employees or Visitors)
within a reasonable time having regard to the extent of the damage
and the work required.
4.7 STRUCTURAL WORKS
Subject to the provisions of clause 3.10 excluding certain
obligations on the part of the Lessor in this regard, without
limiting the generality of clause 4.6, the Lessor shall at its own
cost and expense after receiving written notice by the Lessee
comply with and observe all notices and requirements of any Local
or Public Authority with respect to the building constructed on the
Land and owned by the Lessor, whether or not involving structural
alterations, where compliance with and observance of such notices
and requirements is not the obligation of the Lessee pursuant to
this Lease.
5. MUTUAL COVENANTS
The Lessor and the Lessee MUTUALLY COVENANT that:
5.1 DAMAGES
5.1.1 The Lessee's obligations to observe or perform the
Lessee's Covenants shall survive the expiration or
other termination of this Lease and if the Lessee
shall not have observed and performed the same the
Lessor may in addition to any of other rights at its
option cause or do all things necessary for the
observance and performance and the Lessor may recover
from the Lessee as a liquidated debt payable on demand
the costs and expenses thereof together with interest
at the Prescribed Rate on the amount thereof from time
to time remaining owing from the date of the
expenditure of the costs to the date of repayment
thereof by the Lessee to the Lessor.
5.1.2 In respect of each day following the date of the
expiration or sooner determination of this Lease until
the date on which the Lessee shall complete the
observance and performance of the obligations of the
Lessee's Covenants or any earlier date on which the
Lessor shall in exercise of its powers conferred by
this Lease cause any default by the Lessee in the
observance or performance of its obligations to be
remedied the Lessee shall pay to the Lessor and the
Lessor may recover from the Lessee as and by way of
liquidated damages a daily sum equal to 1/365th of the
aggregate of the Rent and Outgoings payable by the
Lessee for or in respect of the Premises for the
twelve (12) months immediately preceding the date of
termination.
5.2 DEFAULT PROVISIONS
If:
5.2.1 the Rent or any part thereof shall at any time be
unpaid after becoming due for more than seven (7) days
(or, such further time as the Lessor may in any case
specify) after written notice to the Lessee to pay the
same; or
5.2.2 the Lessee breaches or fails to observe or perform any
other of the Lessee's Covenants and the breach
non-observance or non-performance shall continue after
the expiration of (14) days (or, such further time as
the Lessor may in any case specify) of written notice
to the Lessee to remedy the same; or
5.2.3 the Lessee shall go into liquidation or become
bankrupt or enter into any composition arrangement
with or assignment for the benefit of the Lessee's
creditors; or
5.2.4 the Lessee shall have appointed under any Act or
instrument or by order of any court a manager and
administrator a trustee a receiver or a receiver and
manager or liquidator in relation to any part of the
Lessee's undertakings assets or property; or
5.2.5 the Premises shall be abandoned or otherwise left
vacant,
THEN and in any such case (but subject to and this clause shall not
apply to the extent of inconsistency with the Bankruptcy Act 1966)
the Lessor may at its option re-enter occupy and resume possession
of the Premises or any part thereof (with or without re-entering
the Premises) by written notice to the Lessee to terminate this
Lease and thereupon this Lease (other than the provisions hereof
applying for the benefit of the Lessor after the expiration of the
Term) and the Term shall cease and determine but without releasing
the Lessee from the obligation to pay the Rent and Outgoings
accrued up to the time of the re-entry and without prejudice to the
right of action of the Lessor in respect of any breach of the
Lessee's Covenants.
5.3 ESSENTIAL TERMS
The Lessee's covenants:
5.3.1 to pay the Rent and the Outgoings; and
5.3.2 not to assign, sublet, transfer or part with
possession of the Premises or any part thereof or of
the benefit of this Lease without obtaining the prior
written consent of the Lessor,
are essential terms of this Lease and any breach of any of those
covenants shall be regarded by the Lessor and the Lessee as a
fundamental breach and repudiation by the Lessee of this Lease. If
the Lessor determines this Lease following such a breach and
repudiation then (without prejudicing or limiting any other right
or remedy of the Lessor arising from the breach or otherwise under
this Lease) the Lessor shall be entitled to recover from the Lessee
and the Lessee covenants to pay to the Lessor as and by way of
liquidated damages for the breach and repudiation the aggregate of
the Rent and Outgoings which would have been payable by the Lessee
for the unexpired residue of the Term remaining after the
determination after making allowance for Rent and Outgoings which
the Lessor by taking reasonable steps to re-let the Premises
obtains or could reasonably be expected to obtain by reletting the
Premises for the unexpired residue of the Term on reasonable terms
as to Rent and otherwise PROVIDED THAT:
5.3.3 any reletting shall not be required to be on like
terms as are herein expressed and implied;
5.3.4 the acceptance by the Lessor of arrears or any late
payment of the Rent or Outgoings shall not constitute
a waiver of the essentiality of the Lessee's
obligations to make these payments;
5.3.5 the Lessor's entitlement to recover damages as
specified above shall not be prejudiced or limited if:
5.3.5.1 the Lessee abandons or vacates the
Premises;
5.3.5.2 the Lessor elects to re-enter the
Premises or to determine this Lease;
5.3.5.3 the Lessor accepts the Lessee's
repudiation of this Lease; or
5.3.5.4 the parties' conduct constitutes a
surrender by operation of law;
5.3.6 the Lessor shall be entitled to institute proceedings
to recover damages as specified above either before or
after any of the events or matters referred to in
paragraph 5.3.5 above;
5.3.7 any conduct by the Lessor to mitigate damages shall
not of itself constitute acceptance of the Lessee's
breach or repudiation or a surrender by operation of
law; and
5.3.8 nothing herein expressed or implied shall be construed
to mean that none of the other Lessee's Covenants may
be an essential term.
5.4 DAMAGE TO THE PREMISES
If the Premises or any part thereof at any time during the Term is
resumed or taken for any public purpose by any competent authority
or is declared unfit for occupation or ordered to be demolished by
any competent authority or is destroyed or damaged by any risk
insured against so as to render the same substantially unfit for
the use and occupation of the Lessee or so as (in either case) to
deprive the Lessee of substantial use of the same or so as (in the
case of damage or destruction) to render the rebuilding or
reconstruction of the Premises in its previous form impracticable
or undesirable in the opinion of the Lessor, THEN:
5.4.1 this Lease may be terminated without compensation by
either the Lessor or the Lessee by notice in writing
to the other PROVIDED THAT the Lessee shall only be
entitled to terminate this Lease if any policy of
insurance effected in respect of any damage or
destruction shall not have been vitiated or payment of
the policy moneys refused in consequence of some act
or default of the Lessee or any of the Lessee's
Employees or Visitors;
5.4.2 any termination shall be without prejudice to the
rights of either party in respect of any antecedent
breach matter or thing;
5.4.3 nothing herein expressed or implied shall be deemed to
impose any obligation upon the Lessor to rebuild or
reinstate the Premises or to make the same fit for use
and occupation of the Lessee;
5.4.4 if any such resumption damage or destruction of the
Premises occurs the Rent and Outgoings or a
proportionate part thereof depending on the nature or
extent of the resumption destruction or damage shall
abate until the Premises shall have been rebuilt or
reinstated or made fit for the occupation and use of
the Lessee or until the Lease shall have been
terminated pursuant to the provisions of paragraph
5.4.1 above as the case may be. Until mutual agreement
between the Lessor and the Lessee as to the extent of
the abatement or until determined as provided herein
the Lessee shall continue to pay the Rent and
Outgoings in full and upon any agreement or
determination the Lessor shall refund free of interest
to the Lessee any Rent and Outgoings which according
to the agreement or determination has been overpaid.
If any dispute arises with respect to the extent of
the abatement it shall be determined by arbitration as
provided in clause 5.13.
5.4.5 Notwithstanding anything in this sub-clause expressed
or implied the Lessee shall have no right of
termination and the Rent and Outgoings shall not abate
if the destruction or damage or the fact of the
Premises being declared unfit for occupation or
ordered to be demolished was caused or contributed to
by the Lessee or the Lessee's Employees or Visitors.
5.5 EXCLUSION OF WARRANTIES
The Lessee acknowledges and declares that no promise representation
warranty or undertaking has been made or given by or on behalf of
the Lessor in regard to the suitability of the Premises for any
business to be carried on therein or therefrom or in regard to any
fixtures fittings furnishings finish plant machinery or equipment
of or in the Premises or as to the management or security of the
Premises otherwise than as herein expressly contained.
5.6 OWNERSHIP OF FIXTURES AND FITTINGS
Any fixtures fittings chattels plant equipment and furnishings and
other material or articles installed or left by the Lessor in the
Premises at the Lessor's cost shall be deemed for all purposes to
be part of the Premises and shall remain the property of the Lessor
and the Lessee shall not at any time remove damage destroy alter or
otherwise dispose of the same without the prior written consent of
the Lessor.
5.7 HOLDING OVER
If the Lessee continues to occupy the Premises after the expiration
or sooner determination of the Term with the consent of the Lessor
then the Lessee shall become a monthly tenant only of the Lessor
but (unless otherwise agreed) at a rent equal to one twelfth of the
aggregate of the Rent and Outgoings payable by the Lessee
immediately preceding the expiration or sooner determination and
otherwise on and subject to the same covenants and conditions
mutatis mutandis as are herein expressed or implied except that the
monthly tenancy may be determined by one month's notice in writing
by the Lessor or the Lessee to the other expiring at any time.
5.8 MORATORIUM
The application to this Lease of any moratorium or Statute (State
or Federal) having the effect of extending the Term reducing or
postponing the payment of the Rent or any part thereof or otherwise
affecting the operation of the Lessee's Covenants or providing for
compensation rights or privileges at the expense of the Lessor in
favour of the Lessee or any other person is expressly excluded.
5.9 SEVERANCE
If any condition covenant or stipulation of this Lease or the
application thereof to any person or circumstances shall be or
become invalid or unenforceable the remaining covenants conditions
and stipulations shall not be affected thereby and each covenant
condition and stipulation of this Lease shall be valid and
enforceable to the fullest extent permitted by law.
5.10 WAIVER
5.10.1 The Lessor's failure to take advantage of any default
or breach of covenant on the part of the Lessee shall
not be or be construed as a waiver thereof, nor shall
any custom or practice which may grow up between the
parties in the course of administering this Lease be
construed to waive or reduce the right of the Lessor to
insist upon the observance or performance by the Lessee
of any of the Lessee's Covenants.
5.10.2 No consent or waiver expressed or implied by the Lessor
or on behalf of the Lessor to or in respect of any
particular breach of any of the Lessee's Covenants
shall be construed as a consent or waiver to or of any
other breach of the same or any other of the Lessee's
Covenants.
5.10.3 The acceptance by the Lessor of Rent under the Lease
shall not be nor be deemed to be a waiver of any
default or breach by the Lessee of any of the Lessee's
Covenants or the Lessor's knowledge thereof at the time
of acceptance of the Rent.
5.11 SERVICE OF NOTICES
Any notice demand or request required to be made or given pursuant
to this Lease shall be in writing signed by the party giving the
notice or its agent or solicitors and may be served personally or
may be served by being delivered or by being sent by prepaid
certified post:
5.11.1 to the address specified herein of the party unless
that party has given notice of a substituted address
for service of notices and then at that substituted
address; or
5.11.2 in the case of a person to the usual place of abode or
business of the person; or
5.11.3 in the case of a corporation to its registered office
principal place of business or principal office;
and shall be deemed to have been served:
5.11.4 on the day of delivery if delivered before 5.00 pm on
a business day, and otherwise on the business day next
following; or
5.11.5 on the business day next following the day of posting.
5.12 OPTION OF RENEWAL
If the Lessee desires to take a renewal of the Term and gives to
the Lessor notice in writing at least three (3) months before the
expiration of the relevant Term of the Lessee's intent to do so and
if at the time of giving that notice and at the expiration of the
Term there shall be no outstanding breach or non-observance of any
of the Lessee's Covenants of which notice has been given by the
Lessor which notice is not complied with within the time properly
specified in that notice and if in the meantime the Lessor's right
of re-entry shall not have otherwise arisen then the Lessor shall
grant to the Lessee an extension of the Term for the extended term
or terms referred to in Item 7 of the Schedule (together the
"Extended
Term") containing like covenants and provisos as are herein
expressed and implied (save for the right of extension the subject
of this Clause which right shall be expressly excluded from the
Lease for the extended Term or from the Lease for the last extended
term if there shall be more than one extended term as the case may
be) and reserving to the Lessor a rent from the commencement date
of and during each Extended Term to be calculated and determined in
accordance with the rent review provisions contained herein.
5.13 ARBITRATION
If any difference or dispute shall arise between the Lessor and the
Lessee as to the interpretation of this Lease or concerning any act
matter or thing to be performed or observed hereunder and if there
shall be no express provision in this Lease for resolving the
difference or dispute then the difference or dispute shall be
determined by the arbitration of a single arbitrator nominated by
the President for the time being of the Law Society of Western
Australia (Inc.) and otherwise in accordance with the provisions of
the Commercial Arbitration Act 1985 and the award of the arbitrator
shall be final and binding upon the Lessor and the Lessee. The
Lessor and the Lessee may be represented by a duly qualified legal
practitioner in any arbitration proceedings.
5.14 SPECIAL CONDITIONS
This Lease shall be subject to the special conditions (if any)
contained in Item 11 of the Schedule.
5.15 STATE PLANNING COMMISSION APPROVAL
If the aggregate of the Term exceeds twenty one (21) years or if
for any other reason this Lease shall require the consent of the
State Planning Commission of Western Australia then this Lease
shall be subject to that consent being given.
5.16 GOVERNING LAW
The laws of the State of Western Australia (and where applicable
the Commonwealth of Australia) shall apply to this Lease.
5.17 STRATA TITLES ACT
The Lessor shall not register a Strata Plan in respect of the whole
or part of the Land including the Premises without the prior
written approval of the Lessee which approval may be given or
refused by the Lessee or given subject to whatever conditions the
Lessee in its absolute discretion determines.
6. POWER OF ATTORNEY
The Lessee irrevocably makes, nominates, constitutes and APPOINTS
the Lessor and its nominee and their substitute or substitutes
jointly and severally to be the true and lawful attorney or
attorneys of the Lessee to act at any time after the power to
re-enter herein contained shall have been exercised (a sufficient
proof whereof shall be the statutory declaration of any officer or
agent of the Lessor duly authorised by the Lessor in that behalf)
to execute and sign a transfer or a surrender of this Lease and to
procure the same
(if necessary) to be registered and for any of these purposes to
use the name of the Lessee and generally to do, execute and perform
any act, deed, matter or thing relative to the Premises as fully
and effectually as the Lessee could do in and about the Premises
and the Lessee covenants to ratify and confirm all and whatsoever
the attorney or attorneys shall lawfully do or cause to be done in
and about the Premises.
7. GUARANTEE
7.1 GUARANTEE AND INDEMNITY
In consideration of the Lessor entering into this Lease at the
request of the Guarantor (which request is testified by the
Guarantor's execution of this Deed), the Guarantor HEREBY JOINTLY
AND SEVERALLY GUARANTEES payment to the Lessor on demand of the
whole of the Secured Moneys and the performance and observance of
all the Secured Obligations AND as an independent liability
INDEMNIFIES AND AGREES TO KEEP INDEMNIFIED the Lessor against any
loss, damage, action, demand, expense, claim or obligation which
the Lessor has or may suffer or incur by reason of or in any way
consequent upon, arising out of or incidental to the non-payment of
the Secured Moneys or the non-performance or non-observance of the
Secured Obligations. This indemnity shall not be limited or
affected in any way whatsoever by the fact that the Secured Moneys
or the Secured Obligations cannot be or could never be recovered
from or enforced against the Lessee for any reason.
7.2 UNLIMITED LIABILITY
Each Guarantor's liability under paragraph 7.1 of this clause is
unlimited.
7.3 CONTINUING GUARANTEE AND INDEMNITY
This Guarantee and Indemnity is a continuing security and shall not
be wholly or partially discharged (even upon payment of all or the
Secured Moneys that are presently owing) as long as any of the
Secured Moneys are owing or payable, are contingently owing or
payable or may in the Lessor's opinion become owing or payable or
as long as any of the Secured Obligations have not been performed
and the Guarantor shall have no right to discontinue this Guarantee
and Indemnity.
7.4 PRESERVATION OF GUARANTOR'S LIABILITY
Neither the Guarantor's liability nor the Lessor's rights under
this Guarantee and Indemnity or otherwise shall be prejudiced or
discharged by any act or omission or the incapacity of any person
or any event, circumstance or securities of any description which
might otherwise have the effect (whether at law in equity or under
statute) of prejudicing, affecting or discharging the liability of
the Guarantor hereunder either as a guarantor or principal debtor
or as an indemnifier AND without limiting the generality of the
foregoing, the Guarantor's liability and the Lessor's rights
hereunder shall not be prejudiced, affected or discharged in any of
the following events or circumstances:
7.4.1 any loss, release or impairment of any securities held
in respect of the Secured Moneys or the Secured
Obligations through any act or omission of the Lessor
or through any other cause whatsoever;
7.4.2 the granting of any time, credit or any indulgence or
concession to or composition with or release or
discharge by novation of the Lessee or any Guarantor
or any other person whatsoever by the Lessor;
7.4.3 any variation whatsoever of the terms governing the
Secured Moneys or the Secured Obligations including
without limitation any conditions imposed in respect
of advances;
7.4.4 any release, failure or agreement not to sue,
variation, exchange, renewal or modification made or
any other dealing, act or omission whether
constituting a waiver, election, estoppel or otherwise
by the Lessor with respect to any person or with
respect to any judgment, order for payment of moneys,
speciality, instrument (negotiable or otherwise) or
other security whatsoever held, recovered or
enforceable by the Lessor or any obligation or
liability whatsoever in respect of all or any of the
Secured Moneys or any or all of the Secured
Obligations;
AND each of the above circumstances shall be construed separately
and independently and so as not to limit the meaning of any other
listed circumstance.
7.5 SUSPENSION OF GUARANTOR'S RIGHTS
As long as any of the Secured Moneys are owing or payable by the
Lessee to the Lessor (whether or not the Guarantor has become
liable for those moneys under this Guarantee), the Guarantor shall
not:
7.5.1 claim any set-off or make any counter-claim against
the Lessee or the Lessor;
7.5.2 make any claim or enforce any right against the Lessee
or any other guarantor or (where the Lessee or any
other Guarantor dies) against his estate;
7.5.3 prove in competition with the Lessor if the Lessee or
any Guarantor becomes insolvent, whether in respect of
any amount paid by the Guarantor under this Guarantee
and Indemnity, in respect of any other amount
(including the proceeds of any security) applied by
the Lessor in reduction of the Guarantor's liability
under this Guarantee and Indemnity, or otherwise; or
7.5.4 be entitled to the benefit of any security or
guarantee or any share therein now or subsequently
held by the Lessor in respect of the Secured Moneys or
the Secured Obligations or any of them.
7.6 NO DEDUCTION FROM PAYMENTS
All payments under this Guarantee and Indemnity shall be made
without deduction for any tax duty or other governmental charge.
7.7 PAYMENTS IN GROSS
All moneys received by the Lessor which are capable of being
applied by the Lessor towards payment of the Secured Moneys shall
be regarded as payments in gross and the
Guarantor shall have no right to claim the benefit of moneys so
received until the Lessor has received all of the Secured Moneys
which are owing or payable, are contingently owing or payable, or
may become owing or payable.
7.8 SECURITIES
Until all claims of the Lessor in respect of the Secured Moneys and
the Secured Obligations are discharged in full, any security taken
by the Guarantor from the Lessee or any co-guarantor or
co-indemnifier shall be held in trust for the Lessor as security
for the Guarantor's liability under this Guarantee and Indemnity
and the Guarantor shall upon request by the Lessor deposit that
security with or assign it to the Lessor.
7.9 OTHER SECURITIES AND OBLIGATIONS OF GUARANTOR
The Lessor's rights under this Guarantee and Indemnity shall be
additional to and shall not merge with, affect or be affected by:
7.9.1 any other securities now or subsequently held by the
Lessor from the Lessee, the Guarantor or any co-surety
or co-indemnifier; or
7.9.2 any other obligation of the Guarantor to the Lessor;
notwithstanding any rule of the law or equity or any statutory
provision to the contrary.
7.10 OWNERSHIP OF THIS DOCUMENT
This document is the property of the Lessor and shall remain the
Lessor's property after the Guarantor's liability has been
discharged in full.
7.11 NON-LIABILITY OF OTHER PERSONS
The Guarantor's liability under this Guarantee and Indemnity shall
not be affected by:
7.11.1 the fact that any other person who was intended to
execute this Guarantee and Indemnity, or otherwise to
become a co-surety for payment of the Secured Moneys
or the Secured Obligations or any of them, has not
done so or has not done so effectively; or
7.11.2 the discharge under statute or any principle of law or
equity of any person who is a co-surety or
co-indemnifier for payment of the Secured Moneys or
any part thereof.
7.12 REINSTATEMENT OF THE LESSOR'S RIGHTS
If any claim is made that all or part of any payment, obligation,
conveyance or transfer affecting or relating in any way to the
Secured Moneys or the Secured Obligations is void or voidable under
any law relating to bankruptcy, liquidation or the protection of
creditors and such claim is upheld, conceded or compromised:
7.12.1 the Lessor shall be entitled immediately as against
the Guarantor to the rights in
respect of the Secured Moneys and the Secured
Obligations to which it would have been entitled if
all or that part of such payment, settlement,
transaction, obligation, conveyance or transfer had
not taken place;
7.12.2 the Guarantor shall immediately do any act and sign
any document at the Lessor's request to restore to the
Lessor any securities or guarantees held by it
immediately prior to such payment, settlement,
transaction, obligation, conveyance or transfer.
7.13 NOTICES
Any notice or certificate to be given to or demand to be made on
the Guarantor by or on behalf of the Lessor shall be deemed to have
been duly given or made if it is in writing, signed by an
Authorised Officer of the Lessor and left at or sent by prepaid
mail to:
7.13.1 the address of the Guarantor as shown herein;
7.13.2 where a new address has been notified in writing by
the Guarantor to the Lessor, that new address; or
7.13.3 in the case of a corporate Guarantor, its registered
office.
7.14 CERTIFICATE AS TO THE SECURED MONEYS
A certificate signed by the Lessor or its solicitors as to any sum
payable to the Lessor pursuant to this Guarantee and Indemnity as
at the date set out in the certificate shall be conclusive evidence
of the facts stated herein.
7.15 APPLICATION OF MONEYS
The Lessor may apply any moneys paid by the Lessee, or the
Guarantor or otherwise towards satisfaction of the Secured Moneys
in any manner it sees fit. The Lessor may place to the credit of a
suspense account for so long as it considers desirable any money
received under this Guarantee and Indemnity without any obligation
to apply it towards the repayment of the Secured Moneys.
7.16 ACKNOWLEDGMENT BY GUARANTOR
The Guarantor acknowledges that:
7.16.1 there is no condition affecting the operation of this
Guarantee and Indemnity that is not contained herein;
7.16.2 no person has any authority to vary the terms of this
Guarantee and Indemnity or to waive any of the
Lessor's rights, except by an instrument in writing
executed by the Lessor or by an Authorised Officer of
the Lessor on its behalf; and
7.16.3 any securities now or subsequently held by the Lessor
from the Guarantor shall extend to secure the
Guarantor's liability under this Guarantee and
Indemnity.
7.17 INTERPRETATION
In this clause unless the context otherwise requires:
"AUTHORISED OFFICER" means any director, associate director,
secretary or any class of manager of the Lessor and any other
person appointed as such by the Lessor and any person for the time
being acting in any of those capacities;
"INSOLVENCY" means:
(i) in the case of a company - liquidation or official
management;
(ii) in the case of an individual - bankruptcy; and
(iii) in either case - entry into a composition; assignment
or arrangement with creditors;
and "INSOLVENT" has a corresponding meaning;
"PERSON" includes corporation, partnership and unincorporated body;
"SECURED MONEYS" means all and any moneys (including damages and
interest) payable by the Lessee to the Lessor under or by virtue of
this Lease;
"SECURED OBLIGATIONS" means all obligations, covenants, warranties,
terms and conditions express or implied and all provisions
stipulations and work to be observed, performed or fulfilled by the
Lessee or any Guarantor whether pursuant to this Lease or any
document or security or pursuant to any agreement between the
Lessee and the Lessor or otherwise;
Words importing the singular include the plural and vice versa;
Words importing any gender include all other genders; and,
Each of the provisions of this Deed shall be severable and distinct
from one another.
8. SECURITY DEPOSIT
8.1 PAYMENT OF SECURITY DEPOSIT
The Lessee shall pay to Chesterton International of 200 St George's
Terrace, Perth (in this clause referred to as "the Lessor's Agent")
by way of a security deposit on the signing hereof (if it has not
already done so) an amount equal to twenty thousand dollars
($20,000.00).
8.2 STAKEHOLDER
The Lessor's Agent shall hold the security deposit as stakeholder.
8.3 INVEST SECURITY DEPOSIT
The Lessor and the Lessee authorise and direct the Lessor's Agent
to invest the security deposit at the risk of the Lessee in the
name of the Lessor's Agent in an interest bearing account with a
banking or financial institution nominated by the Lessee upon the
signing of this Lease.
8.4 INTEREST
The parties acknowledge and agree that all interest earned on the
security deposit shall be added to and form part of the security
deposit.
8.5 RETURN OF SECURITY DEPOSIT
The Lessor's Agent shall immediately upon the expiration of the
Term or any extension or removal thereof or upon the date of any
assignment of this Lease pay the balance of the security deposit
remaining and any interest earned upon it to the Lessee.
8.6 APPLYING THE SECURITY DEPOSIT
The Lessor may after the expiration of fourteen (14) days notice in
writing to the Lessee (of the Lessor's intention to apply all or
any part of the security deposit) require the Lessor's Agent to
apply all or any part of the security deposit towards recouping the
Lessee for any loss or damage which it may suffer by reason of any
default by the Lessee in performing, observing or complying with
clause 3.38 and the Lessor's Agent shall be obliged to make payment
under the security deposit, to the Lessor where the demand is
accompanied by a statutory declaration by or on behalf of the
Lessor verifying the default and the amount claimed and the Lessor
has given the Lessee the notice referred to in this clause.
Contemporaneously with the making of any demand under the security
deposit the Lessor must serve a copy of the demand and accompanying
statutory declaration on the Lessee.
EXECUTED as a Deed.
THE SCHEDULE
ITEM 1 (Clause 1.1)
Land: All that piece of land situated and known as 6-8
Brodie Hall Drive, Technology Park, Bentley being part
lot 53 on Diagram 74187 and being the whole of the
land comprised in Certificate of Title Volume 2103
Folio 138.
Premises: The whole of the Land.
Lessors chattels: All chattels, plant and equipment of the Lessor in or
about the Premises.
ITEM 2 (Clause 1.1)
The term of this Lease: One (1) year
Commencement Date: 17 December 1998
Expiration Date: 16 December 1999
ITEM 3 (Clause 1.1)
Rent: Two Hundred and Forty Thousand Dollars
($240,000.00) per annum payable calendar
monthly in advance by 12 equal calendar
monthly instalments of Twenty Thousand
Dollars ($20,000.00) per month.
Address for payment of Rent: To the Lessor at its address herein
unless otherwise specified in writing by
the Lessor.
Dates for payment of Rent: Calendar monthly on the first day of each
and every month the first payment to be
made on the 17th day of December, 1998.
ITEM 4 (Clause 1.1)
Prescribed Rate: Twelve per cent per annum.
ITEM 5 (Clause 1.1)
Rent Review Dates: Not applicable
ITEM 6 (Clause 3.29)
Permitted Use: Any use to which the Premises may be lawfully put.
ITEM 7 (Clause 1.1)
The Extended Term: Not applicable
ITEM 8 (Clause 1.1)
Outgoings: All reasonable costs and expenses incurred or payable by the
Lessor (to the extent that they have not already been
separately paid by the Lessee) for or in respect of the
Premises in connection with:
(a) all charges for and costs in relation to the supply of
water and sewerage services, excess water and the
removal of all waste and other garbage and sullage
from the Land and the Premises;
(b) premiums for insurances effected by the Lessor
including (without limitation):
(i) insurances on the Premises; and
(ii) insurances on the Lessor's chattels, fixtures
and fittings plant equipment and machinery
installed in the Premises against loss or
damage by fire fusion storm tempest lightning
explosion sprinkler leakage flood earthquake
riot civil commotion impact damage from
aircraft and articles dropped therefrom and
malicious damage;
(c) costs of cleaning the Premises, windows and signs;
(d) the supply of light and power to the Premises;
(e) costs and expenses of maintenance operation inspection
servicing and upkeep of and repairs to the Premises
(and all gardens and yards (if any)) including
(without limitation) pest control, the servicing and
inspection of heating and cooling appliances, drains
and sewers, toilets, fire fighting equipment,
plumbing, security and emergency installations systems
and equipment and garbage fixtures fittings plant and
equipment;
(f) all management fees and other charges payable by the
Lessor to any managing agent of the Premises not
exceeding the scale prescribed by the Real Estate and
Business Agents Act 1978;
(g) a sum equivalent to interest at the Prescribed Rate on
any moneys expended by the Lessor and not recovered
from the Lessee in carrying out work other than
structural alterations required by any Local or Public
Authority;
(h) all rates taxes charges assessments outgoings
impositions duties and fees whatsoever assessed
charged or imposed on the Premises or any part thereof
or on the owner of occupier thereof including (without
limitation) municipal water sewerage and drainage
rates land and metropolitan region improvement tax
(calculated on the basis that the Land is the only
land owned by the Lessor);
(i) all taxes and statutory charges associated with the
matters mentioned in this Item including but not
limited to payroll-tax, financial institutions duty,
bank debits tax, tax on goods and services and taxes
of a type not charged at the commencement date but
excluding only income tax or other tax imposed upon
the Lessor otherwise than in respect of ownership or
operation of the building.
ITEM 9
Current Market Rental
Value: (1) The annual Rent that can be reasonably obtained for the
Premises in a free and open market and on the basis of the
Premises being available for leasing with vacant possession by
a willing lessor to a willing lessee for a period equal to the
Term and:
(a) assuming that the Premises are available for
leasing for a term equal to the Term;
(b) on the terms and conditions and for the
permitted use contained in this Lease and any
other use to which the Premises may be
lawfully put;
(c) assuming that all of the covenants and
obligations on the part of the Lessee and the
Lessor contained in this Lease have been
fully performed and observed at the relevant
Rent Review Date;
(d) having regard to the current market rental
values of comparable premises of a similar
size and location to the Premises in the
Perth Metropolitan Area;
(e) if at the relevant Rent Review Date the
Premises have been wholly or partially
damaged or destroyed assuming that the
Premises have been reinstated pursuant to
clause 5.4;
but disregarding:
(f) any increase or decrease in the value of the
Premises as lettable premises by reason of
the occupancy or use of the same by the
Lessee or any sub-lessee assignee or
transferee of the Lessee or any other person
deriving an interest in the Premises through
the Lessee;
(g) any value attaching to goodwill created by
the Lessee's occupation of the Premises or to
any licence or permit belonging to the Lessee
in respect of the business carried on by the
Lessee at the Premises;
(h) any deleterious condition of the Premises if
the condition results from any work carried
out on the Premises by the Lessee or by any
breach of any term of this Lease by the
Lessee; and
(i) the Lessee's trade fixtures and fittings and
any improvements racking or installations
erected or installed at the Lessee's expense
and which the Lessee is permitted to remove
at the expiration of this Lease but taking
into account permanent structural
improvements installed at the Lessee's
expense and which the Lessee may not remove
at the expiration of this Lease.
ITEM 10 (Clause 3.11)
Painting obligations of Lessee: As specified in Clause 3.11
ITEM 11 (Clause 5.16)
Special Conditions: Nil
THE COMMON SEAL of )
DYNAMIC DIGITAL DEPTH )
(AUSTRALIA) PTY LTD )
(ACN 060 154 949) )
was hereunto affixed by )
authority of the )
Directors in the )
presence of: )
Director:
Director/Secretary:
THE COMMON SEAL of )
BOSTON TOWER PTY LTD )
(ACN 071 187 187) )
was hereunto affixed by )
authority of the )
Directors in the )
presence of: )
Director:
Director/Secretary:
DYNAMIC DIGITAL DEPTH INCORPORATED
a Canadian corporation
By:
----------------------
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MORTGAGEE'S CONSENT
of
("the Mortgagee") as mortgagee under a Mortgage numbered and registered on
the day of 19 ("the Mortgage") CONSENTS AND AGREES to this Lease
and ACKNOWLEDGES that subject to the Lessee and the Lessor duly observing and
performing the covenants and agreements on their parts respectively contained
in this Lease and in any security taken in support of those covenants and
agreements, the Mortgagee will only exercise its rights and remedies under
the Mortgage subject to this Lease and the Lessee's rights thereunder but
save as aforesaid without prejudice to and reserving to the Mortgagee all its
rights and remedies against the land upon which the Premises are located
("the Land") comprised in the Mortgage and also subject to the condition that
the Mortgagee (whether or not it has entered into possession of the Land)
shall in no way be bound to perform and shall not incur any liability in
respect of the covenants and agreements expressed or implied in this Lease
and on the part of the Lessor to be observed and performed.
Dated the day of 19 .
--------------------------------------------------
An Authorised Signatory for
and on behalf of the Mortgagee