License: 10V/0252/95 LEASE
Printed: 1196LTO NEW SOUTH WALES
REAL PROPERTY ACT 1900
INSTRUCTIONS FOR FILLING OUT THIS FORM ARE AVAILABLE FROM THE LAND TITLES
OFFICE
Office of State Revenue use only
(A) PROPERTY LEASED
If appropriate, specify the part or premises.
VOLUME 9590 FOLIO 26 PART BEING LEVELS 3 AND 4, 1 ELIZABETH
PLAZA, NORTH SYDNEY
auto/consol 9590-26
(B) LODGED BY
LTO BOX 987T
Name, Address or DX and Telephone
LANDERER & COMPANY, SOLICITORS
LEVEL 31, 133 CASTLEREAGH STREET
SYDNEY NSW 2000
DX 1247 SYDNEY
REFERENCE (15 character maximum): EB:15-0530 TEL: 9261 4242
(C) LESSOR
NESOVA PTY LIMITED ACN 068 339 864
The lessor leases to the lessee the property described above.
Encumbrances (if applicable) 2064791
(E) LESSEE
L
WORLD XCHANGE PTY LIMITED ACN 064 817 474
(F) TENANCY:
(G) 1. TERM: Five (5) years
2. COMMENCING DATE: 15 August 1997
3. TERMINATING DATE: 14 August 2002
4. With an OPTION TO RENEW for a period of Five (5) years set out in
Item 3
6. Together with and reserving the RIGHTS set out in the Annexure
7. Incorporates the provisions set out in ANNEXURE hereto.
8. Incorporates the provisions set out in MEMORANDUM NO. Y119929 filed
in the Land Titles Office.
Page 1 of 11
(H) DATE 14 July 1997 We certify this dealing correct for the purposes of
the Real Property Act 1900
FOR EXECUTION BY THE PARTIES REFER TO EXECUTION PAGE ANNEXED HERETO
(I) STATUTORY DECLARATION
I solemnly and sincerely declare that the time for the exercise of
Option to Renew/Purchase in expired lease No.__________ has ended and the
lessee under that lease has not exercised the option.
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 ________________19____ in the presence of
------------------------------------
Signature of Witness
------------------------------------
Name of Witness (BLOCK LETTERS)
------------------------------------ --------------------------------
Address and Qualification of Witness Signature of Lessor
Page 2 of 11
THIS IS ANNEXURE "A" REFERRED TO IN THE LEASE BETWEEN NESOVA PTY LIMITED (AS
LESSOR) AND WORLD XCHANGE PTY LIMITED (AS LESSEE) DATED THIS 14th Day of
July, 1997
1. The provisions of Memorandum Y119929 are deemed to be incorporated
herein with the following additions and alterations:
CLAUSE 1 - DEFINITIONS
1.1 Clause 1.1 is amended by adding the following:
""Index Number" means the Consumer Price Index (All Groups) for
the City of Sydney published from time to time in the
Commonwealth Statistician's Summary of Australian Statistics.
If the Commonwealth Statistician updates the reference base of
the Consumer Price Index (All Groups) for the City of Sydney
due conversion must be made to preserve the intended continuity
of calculation by using the appropriate arithmetical factor
determined by the said Statistician. If there is any suspension
or discontinuance of the Consumer Price Index (All Groups) by the
Commonwealth Authorities "Index Number" means such index
published at the commencement of the term and at the date of
suspension or discontinuance of the Consumer Price Index (All
Groups) in the Commonwealth Statistician's Summary of Australian
Statistics which reflects fluctuations in the cost of living in
Sydney and which the parties mutually agree on. If they are
unable to agree then "Index Number" means such index chosen by a
Valuer nominated by the President for the time being of the
Institute. Such determination binds the Lessor and the Lessee.
The cost of such determination will be borne equally by the
Lessor and the Lessee.
"Institute" means the Australian Institute of Valuers and Land
Economists Inc (NSW Division) or such other professional
organisation which succeeds that body."
CLAUSE 2 - RENT AND RENT REVIEWS
2.3 Clause 2.3 is amended by replacing "2" on line 2 with "2A".
2.3A Clause 2.3A is added as follows:
"On each date specified in Item 2B of the Reference Schedule (the
"CPI Review Dates") the Minimum Rent payable will be the higher
of:
(i) The Minimum Rent payable for the year immediately preceding
the relevant CPI Review Date increased by five per cent
(5%); or
(ii) The Minimum Rent payable for the year immediately preceding
the relevant CPI Review Date multiplied by the Index Number
for the quarter ending immediately prior to the relevant
CPI Review Date and divided by the Index Number for the
quarter ending twelve (12) months prior to the relevant CPI
Review Date."
2.5 Clause 2.5 is amended by deleting the words "the Australian
Institute of Valuers" and by inserting instead the words "the
Australian Institute of Valuers and Land Economists (Inc.)".
2
2.6 Clause 2.6 is amended by deleting the words "the Australian
Institute of Valuers" and inserting instead the words "the
Australian Institute of Valuers and Land Economists (Inc.)".
2.12 Clause 2.12 is amended by deleting the words "the Australian
Institute of Valuers" and inserting instead the words "the
Australian Institute of Valuers and Land Economists (Inc.)".
2.13 Clause 2.13 is replaced by "The Minimum Rent as determined on any
Review Date shall not be less than the Minimum Rent payable
immediately prior to such determination."
CLAUSE 3 - LESSEE'S CONTRIBUTION TO OUTGOINGS
3.1 The definition of "the Base Figure" is amended by deleting the
words "31 March" and inserting instead the words "30 June".
The definition of "Lease Year" is amended by deleting the words
"31 March" and inserting instead the words "30 June".
CLAUSE 4 - CLEANING
4B(a) Clause 4B(a) is amended by inserting "in the absence of any
default, omission or negligence on the part of the Lessor" after
"workman of such person" on line 5.
CLAUSE 5 - OPTION FOR RENEWAL AND HOLDING OVER
5.1 Clause 5.1 is amended by deleting the words from lines 12 to 16
"at the rents equal to those which would have been payable
hereunder in accordance with clause 2 of this Lease and with the
Review Dates and the rent reviews occurring as if this lease had
been granted for the aggregate of the term hereof and the further
term stated in Item 3 and otherwise".
Delete from line 17 the words "this present clause 5.1 which
shall be omitted therefrom" and inserting instead the words:
"(a) This clause 5.1, 18.1(a), 18.2 and 18.3 shall be omitted
from the new lease and all words on the front page of the
Lease referring to an option to renew shall be omitted.
(b) The Minimum Rent payable by the Lessee in respect of such
renewed term shall be calculated and payable on the day
following the expiry of the original term herein.
(c) The Minimum Rent for the first year of the renewed term
shall be determined as if the first day of the renewed
term was a Review Date.
3
(d) If the rent in the renewed term shall not have been
determined in accordance with the foregoing by the time of
the commencement of the new term then the Lessee shall pay
the same minimum rental as was payable by the Lessee to
the Lessor in the last year of the current Lease and on a
final determination of the new rent any additional rent
necessary shall be paid forthwith by the Lessee to the
Lessor in respect of the period commencing from the
commencement date of the renewed term until payment of
the additional amount as aforesaid.
(e) In the lease for the renewed term:
(i) the front of the lease shall be appropriately
amended to show the commencing date of the renewed
term and the terminating date of the renewed term;
(ii) Item 1 of the Reference Schedule and the amount
stated therein shall be deleted and replaced with
the amount of the Minimum Rent determined under this
option clause;
(iii) in Item 3 of the Reference Schedule the information
therein shall be replaced with the words "Not
applicable".
(iv) In Item 2A of the Reference Schedule the information
therein shall be replaced with "15 February 2005".
(f) The term shall be reviewed and adjusted in accordance
with the provisions of clause 2 hereof."
CLAUSE 8 - USE OF PREMISES
8.2 Clause 8.2 is amended by inserting "other than the Permitted Use"
after "Lessee" on line 2.
CLAUSE 9 - INSURANCE AND INDEMNITY
9.3 Clause 9.3 is amended by deleting the words "the Board of Fire
Commissioners of New South Wales" and by inserting instead the
words "the New South Wales Fire Brigades".
9.5(a) Clause 9.5(a) is amended by inserting the words "except as
arising out of any act or omission or the negligence of the
Lessor or persons under the Lessor's control" at the end of the
clause.
CLAUSE 10 - DAMAGE OR DESTRUCTION
10.1(d) Clause 10.1(d) is amended by deleting the words "is amended by
deleting the words "the Australian Institute of Valuers" and
inserting instead the words "the Australian Institute of Valuers
and Land Economists (Inc.)".
4
CLAUSE 11 - COVENANTS BY LESSOR
11.1 Clause 11.1 is amended by:
(a) deleting the word "Lessee" in line 1 and by inserting the
word "Lessor";
CLAUSE 13 - DEFAULT
13.3 Clause 13.3 is amended by replacing "Should the Lessor become"
on line 1 with "Within sixty (60) days of the Lessor becoming".
CLAUSE 16 - BANK GUARANTEE
16.1 Clause 16.1 is added as follows:
16.1 (a) The Lessee on or before the earlier of its signing
of this Lease and the Commencing Date shall provide
to the Lessor a guarantee from a bank authorised to
carry on business under the Banking Act, 1959 of
the due observance and performance by the Lessee of
all the provisions contained herein on the part of
the Lessee to be observed or performed with a
maximum liability to the bank of the amount
specified in Item 12 of the Reference Schedule (the
"bank guarantee").
(b) Any bank guarantee provided pursuant to this clause
16 shall be upon terms and conditions required by
the Lessor including but not limited to an
irrevocable authority for the bank to pay the
Lessor upon demand by the Lessor all amounts
payable to the Lessor in consequence of the
Lessee's failure to duly observe or perform any
of such provisions.
(c) If at any time the Lessee fails to duly observe or
perform any of the provisions contained herein on
the part of the Lessee to be observed or performed
the Lessor may in its discretion at any time call
up the bank guarantee as may be necessary in the
opinion of the Lessor to compensate the Lessor for
any loss or damage suffered or which may be suffered
by the Lessor by reason of such failure. Any such
calling up by the Lessor shall not constitute a
waiver of such failure and shall not prejudice any
other remedy or right of the Lessor in respect of
such failure.
(d) If the bank guarantee is called up by the Lessor
in accordance with this clause and this Lease is
not terminated by the Lessor the Lessee shall
provide to the Lessor a further bank guarantee in
the amount so called up (as the case may be) to be
held in accordance with this clause.
5
(e) If the Minimum Rent is increased during the term,
the Lessee must if requested by the Lessor, provide
to the Lessor a further bank guarantee so the
amount guaranteed at all time has the same
proportion to the Minimum Rent as at the
commencement date.
(f) If the Lessor's interest in the premises is
assigned or transferred the Lessor shall be at
liberty to assign the bank guarantee less all sums
called up by it in accordance with this clause to
any such assignee or transferee and thereupon the
Lessor shall be discharged from all liability to
the Lessee or any other person in respect of the
bank guarantee.
16.2 The calling up of the bank guarantee shall not deem the
Lessor to condone or waive the Lessee's breach of the
Lease and shall be without prejudice to the rights of the
Lessor in respect thereof.
CLAUSE 17 - MAIL DELIVERY
17.1 Clause 17.1 is added as follows:
"The Lessee acknowledges that it is aware that the Building does
not have a mail room and that a mail delivery service will not
be provided to the Building by Australia Post. The Lessee
agrees that it will be the Lessee's responsibility to arrange for
the collection of its mail from an office of Australia Post or
if Australia Post has ceased to exist then the postal authority
from time to time."
CLAUSE 18 - SPECIAL CONDITIONS
18.1 Clause 18.1 is added as follows:
"Subject to due compliance with the terms and conditions of this
Lease by the Lessee:
(a) the Lessee will be entitled to occupy:
(i) Level 3 of the Premises free of Minimum Rent only
from the Commencing Date to 31 August 1997; and
(ii) Level 4 of the Premises free of Minimum Rent only
from the Commencing Date to 30 November 1997.
(b) and in particular clause 2.2(a)(ii), the amount of the
Bank Guarantee as specified in Item 12 of the Reference
Schedule will be reduced to four (4) months of
instalments of Minimum Rent."
18.2 Clause 18.2 is added as follows:
"For the purposes of clause 18.1(a) the parties agree and
acknowledge that the Minimum Rent stated in Item 1 of the
Reference Schedule is apportioned as between Level 3 and Level
4 as follows:
6
(a) Level 3 - $242,688.50; and
(b) Level 4 - $311,618.50."
18.3 Clause 18.3 is added as follows:
"(a) The Lessor must complete the following words ("the
Lessor's Works") to the Premises:
(i) replace ceiling tiles when necessary and restore
the lighting grid on Levels 3 and 4; and
(ii) re-carpet Levels 3 and 4; and
(iii) paint all walls on Levels 3 and 4; and
(iv) instal double entrance doors on Level 3; and
(v) restore to each of Levels 3 and 4 one pair of male
and female amenities
(b) Within seven (7) days of receiving this Lease duly
executed by the Lessee and Guarantors, the Lessor will
apply for council approval of the Lessor's Works. The
Lessor will commence such works within seven (7) days of
receiving council approval and the Lessee will not be
required to pay Minimum Rent until such works have been
substantially completed.
18.4 Subject to:
(a) any council approvals; and
(b) the Lessor's prior written approval which will not be
unreasonably withheld as to the quality, material,
dimensions and design and the precise positioning of the
Lessee's signage
the Lessee may instal a sign at the Lessee's cost above the
external entrance to Level 4 of the Building.
7
REFERENCE SCHEDULE
ITEM 1 INITIAL RENT (Clause 2.1)
$554,307.00
ITEM 2 A. RENT REVIEW DATES B. CPI REVIEW DATES
(Clause 2.3) (Clause 2.3A)
15 February 2000 On each anniversary of the
Commencing Date
ITEM 3 OPTION PERIOD (Clause 5.1)
Five (5) years
ITEM 4(a) LESSEE'S PERCENTAGE OF INCREASE IN OUTGOINGS (Clause 3.1)
20.45%
ITEM 4(b) BASE YEAR (Clause 3.1)
1997
ITEM 5 CLEANING (Clause 4)
Lessor to clean
ITEM 6 USE (Clause 8.1)
Offices
ITEM 7(a) ACCESS (Clause 8.7)
Restricted 24 hour access
ITEM 7(b) CLOSURE OF BUILDING (Clause 8.8)
Before 8:00am and after 6:00pm on Monday to Friday, Saturdays,
Sundays and Public Holidays
8
ITEM 8 PUBLIC RISK INSURANCE (Clause 9.1)
Ten Million Dollars ($10,000,000.00)
ITEM 9 GUARANTOR (Clause 14.1)
Not applicable
ITEM 10 INTEREST (Clause 2.14)
15%
ITEM 11 SERVICES PROVIDED BY THE LESSOR (Clause 11.1)
A lift service and air conditioning between the hours of 8:00am
and 6:00pm only on Monday to Friday (excluding Public Holidays
and any other times during which the Premises or the Building
are required to be closed by the Lessor or pursuant to Clause
8.8)
ITEM 12 BANK GUARANTEE (Clause 16.1 and Clause 18.1(b))
An amount equivalent to six (6) months of instalments of Minimum
Rent
9
THIS IS THE EXECUTION PAGE REFERRED TO IN THE LEASE BETWEEN NESOVA PTY
LIMITED (AS LESSOR) AND WORLD XCHANGE PTY LIMITED (AS LESSEE) DATED THIS 14th
DAY OF JULY 1997
EXECUTED AS A DEED
We hereby certify this Lease to be correct for the purposes of the Real
Property Act, 1900.
THE COMMON SEAL of )
NESOVA PTY LIMITED ) [SEAL]
is affixed by authority of its Board )
of Directors and in the presence of: )
/s/ Greg Shaw /s/ Danny Goldberg
- ------------------------------------- ------------------------------------
Secretary/Director/Authorised Person Director
/s/ Greg Shaw /s/ Danny Goldberg
- ------------------------------------- ------------------------------------
Print name of signatory Print name of signatory
THE COMMON SEAL of )
WORLD XCHANGE PTY LIMITED ) [SEAL]
is affixed by authority of its Board )
of Directors and in the presence of: )
/s/ Roger B. Abbott /s/ Edward S. Soren
- ------------------------------------- ------------------------------------
Director Director
/s/ Roger B. Abbott /s/ Edward S. Soren
- ------------------------------------- ------------------------------------
Print name of signatory Print name of signatory
CONSENT TO LEASE
LEASE between NESOVA PTY LIMITED (the LESSOR)
AND WORLD XCHANGE PTY LIMITED (the LESSEE)
OF PREMISES AT Levels 3 & 4, 1 Elizabeth Plaza, North Sydney (the PREMISES)
AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED
ACN 005 357 522 of Level 2, 100 Queen Street, Melbourne (the BANK)
the proprietor of Mortgage No. 2064791
over the land described in the Certificate of Title
Auto Consol 9590-26
at the request of the parties to the subject Lease CONSENTS to the granting
of the Lease and all other provisions of the Lease subject to these
provisions:
- This consent is without prejudice to the right of the Bank to
exercise its rights under its Mortgage subject to the rights of
the Lessee under the Lease.
- When the Bank exercises its rights under its Mortgage, it has
all the rights of the Lessor under the Lease:
- to enforce observance of all covenants in the Lease
relating to the use and occupation of the Premises;
- to exercise all rights, powers, privileges, remedies and
authorities of the Lessor (including all right of re-entry
and all incidental powers); and
- to do all acts and grant all consents and licenses to the
same extent as if those covenants, provisions, rights,
powers, privileges and authorities were given to the Bank.
- If the Bank exercises its rights under its Mortgage and gives a
written notice to the Lessee to pay the rent to it, the Lessee
must pay all future rents and other moneys payable under the
Lease to the Bank, who may demand and sue for them if not paid.
Upon receipt of that notice, the Lease is then deemed to be
executed by the Lessee and the Bank.
- All rights, powers and remedies of the Lessor under the Lease
are not capable of being enforced by the Lessor without the
consent in writing of the Bank until that notice is withdrawn
or the Mortgage is discharged. Until then the Bank will have
the same rights and remedies as the Lessor by virtue of the
Lease, but if the Lessee has any legal or equitable rights of
set-off against the Lessor, the Lessee cannot enforce them
against the Bank.
- Subject to the Lessee's right of quiet enjoyment of the
Premises, the Bank will not be liable to observe or perform any
of the obligations of the Lessor under the Lease unless it
becomes mortgagee in possesion.
2.
- The Lessor and the Lessee must not:
- agree to assign or mortgage the Lease, or sublet all or
any part of the Premises, or change the use of the Premises;
or
- vary the terms and conditions of the Lease or any renewal
of it without the written consent of the Bank, which it
will not withhold unreasonably.
- If the Lessee does not observe the terms and conditions of this
consent, then the Bank's consent to the granting of the Lease may,
at the option of the Bank, become void and the rights of the Bank
as mortgagee can be enforced without reference to the Lease.
- Any statutory form of consent by the Bank is given without
prejudice to these conditions.
THE BANK AGREES that while the Lessee is not in default under
the Lease it will not interfere with the Lessee's use or
occupation of the Premises even though the Lessor is in default
under the Mortgage.
THE LESSOR AND THE LESSEE accept these conditions.
DATED this 15th day of October 1997.
EXECUTED IN MY PRESENCE BY ) AUSTRALIA AND NEW ZEALAND
GREGORY DAVID RUSSELL ) BANKING GROUP LIMITED
As attorney of AUSTRALIA AND ) By its Attorney
NEW ZEALAND BANKING ) GREGORY DAVID RUSSELL
GROUP LIMITED he being ) And I, the said Attorney,
personally known to me ) state that I have not received
) any Notices of the Revocation
) of the Power of Attorney
) Registered No. 878 Book 4001
) under the authority of which I
) have just executed this
) document.
)
/s/ Belinda Fong ) /s/ [ILLEGIBLE]
--------------------------- ) ------------------------------
Signature of Witness ) ACTING MANAGER SECURITIES for
Belinda Fong ) the time being of Australia
Name of Witness (Block ) and New Zealand Banking Group
Letters) ) Limited for New South Wales.
THE COMMON SEAL of )
NESOVA PTY LIMITED ) [SEAL]
is affixed by authority of its Board )
of Directors and in the presence of: )
/s/ Greg Shaw /s/ Danny Goldberg
- ------------------------------------ ------------------------------------
Secretary/Director/Authorised Person Director
/s/ Greg Shaw /s/ Danny Goldberg
- ------------------------------------ ------------------------------------
Print name of signatory Print name of signatory
THE COMMON SEAL of )
WORLD XCHANGE PTY LIMITED ) [SEAL]
is affixed by authority of its Board )
of Directors and in the presence of: )
/s/ R.A.D. Vincent /s/ John A. Brennan
- ------------------------------------ ------------------------------------
Secretary Director
/s/ R.A.D. Vincent /s/ John A. Brennan
- ------------------------------------ ------------------------------------
Print name of signatory Print name of signatory