IMPORTANT NOTICE TO VENDORS AND PURCHASERS
BEFORE SIGNING THIS CONTRACT YOU SHOULD ENSURE THAT YOU UNDERSTAND YOUR RIGHTS
AND OBLIGATIONS, SOME OF WHICH ARE NOT WRITTEN IN THIS CONTRACT BUT ARE IMPLIED
BY LAW.
IF THIS CONTRACT IS MADE ON OR AFTER 1 SEPTEMBER 2000, THIS NOTICE APPLIES
INSTEAD OF THE NOTICE ON PAGE 3 OF THIS CONTRACT.
VENDOR: RESMED HOLDINGS LIMITED ACN 003 765 133
PURCHASER: TRUST COMPANY OF AUSTRALIA LIMITED ACN 004 027 749
PROPERTY: ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
CONTRACT FOR THE SALE OF LAND - 2000 EDITION
(THIS CONTRACT CONSISTS OF THIS SHEET, THE PROVISIONS OF THIS CONTRACT AND ANYTHING ATTACHED)
(A CHOICE PRINTED IN BLOCK CAPITALS APPLIES UNLESS A DIFFERENT CHOICE IS MARKED)
TERM MEANING OF TERM
VENDOR'S AGENT ▇▇▇▇▇ ▇▇▇▇ LASALLE PHONE: (▇▇) ▇▇▇▇ ▇▇▇▇
(IF MORE THAN ONE, LEVEL 24, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇, ▇▇▇▇ FAX: (▇▇) ▇▇▇▇ ▇▇▇▇
THE FIRST NAMED) REF: ▇▇▇▇▇ ▇▇▇▇▇▇
COLLIERS JARDINE (NSW) PTY LIMITED PHONE: (▇▇) ▇▇▇▇ ▇▇▇▇
LEVEL ▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇, ▇▇▇▇ FAX: (▇▇) ▇▇▇▇ ▇▇▇▇
REF: ▇▇▇▇▇▇▇ ▇▇▇▇▇
RESMED HOLDINGS LIMITED ACN 003 ▇▇▇ ▇▇▇
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇, ▇▇▇▇
VENDOR'S DIBBS ▇▇▇▇▇▇ GOSLING PHONE: (▇▇) ▇▇▇▇ ▇▇▇▇
SOLICITOR LEVEL ▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ FAX: (▇▇) ▇▇▇▇ ▇▇▇
DX 101 SYDNEY REF: 3055754. ▇ ▇▇▇▇▇▇
DEPOSIT HOLDER ▇▇▇▇▇▇'S AGENT INVEST DEPOSIT: YES (CLAUSE 3)
COMPLETION DATE THE EARLIER OF THE 42ND DAY AFTER THE CONTRACT DATE AND THE DATE 5 BUSINESS DAYS
AFTER EITHER PARTY SERVES WRITTEN NOTICE ON THE OTHER REQUESTING COMPLETION (SUCH
NOTICE NOT TO BE GIVEN ON OR BEFORE 21 DAYS AFTER THE CONTRACT DATE). (CLAUSE 15)
PROPERTY THE LAND, THE IMPROVEMENTS, ALL FIXTURES AND THE INCLUSIONS, BUT NOT THE EXCLUSIONS
LAND ADDRESS ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
PLAN REGISTERED PLAN: LOT 1 IN DEPOSITED PLAN 872430 (COPY ATTACHED)
TITLE FOLIO IDENTIFIER 1/872430
TORRENS
FEE SIMPLE - OWNERSHIP
IMPROVEMENTS AS SHOWN ON THE ATTACHED SURVEY REPORT
INCLUSIONS THE FOLLOWING ITEMS, ALL INSPECTED BY THE PURCHASER (SOME MAY BE FIXTURES):
THE ITEMS LISTED IN ANNEXURE "B" TO THE LEASE REFERRED TO IN CLAUSE 44.
EXCLUSIONS SEE CLAUSE 38.
PURCHASER TRUST COMPANY OF AUSTRALIA LIMITED ACN 004 027 749
▇▇-▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇
IF MORE THAN ONE, AS _ JOINT TENANTS TENANTS IN COMMON (IN EQUAL SHARE UNLESS OTHERWISE STATED)
PURCHASER'S ▇▇▇▇▇▇▇▇ & ▇'▇▇▇▇▇ PHONE: ▇▇▇▇ ▇▇▇▇
_ SOLICITOR LEVEL ▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ FAX: ▇▇▇▇ ▇▇▇▇
_ LICENSED
CONVEYANCER DX 296 SYDNEY REF: ▇ ▇ ▇'▇▇▇▇▇
PRICE PRICE $34,000,000.00
DEPOSIT $1,700,000.00 (10% OF THE PRICE, UNLESS OTHERWISE STATED)
------------------------------------------------------------------------------------
BALANCE $32,300,000.00
CONTRACT DATE (IF NOT STATED, THE DATE THIS CONTRACT WAS MADE)
NOTE: THE PRICE EXCLUDES GST (IF ANY) PAYABLE BY THE VENDOR.
VENDOR'S INITIALS (FULL SIGNATURES ON NEXT PAGE) PURCHASER'S INITIALS
1A
VENDOR PURCHASER
(USE THE APPROPRIATE BOX)
SIGNED BY ) SIGNED BY )
) ▇▇▇▇▇ ▇▇▇▇▇▇▇ )
AS ATTORNEY FOR THE VENDOR ) AS ATTORNEY FOR THE PURCHASER )
UNDER POWER OF ATTORNEY ) TRUST COMPANY OF
DATED ) AUSTRALIA LIMITED ) /S/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
IN THE PRESENCE OF: ) ACN 004 027 749 ) -----------------
UNDER POWER OF ATTORNEY ) MANAGER
REGISTERED BOOK 4279 NO. 670) )
)
IN THE PRESENCE OF:
WITNESS )
/S/ ▇▇▇▇▇ ▇▇▇▇
------------------------------
WITNESS
THE COMMON SEAL OF THE ) THE COMMON SEAL OF )
VENDOR
) ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇) )
RESMED HOLDINGS ) FUNDS MANAGEMENT) )
LIMITED ACN 03 765 133 ) LIMITED ACN 067 796 641) )
WAS AFFIXED IN ) WAS AFFIXED IN ACCORDANCE )
ACCORDANCE WITH ITS ) WITH ITS CONSTITUTION IN THE) )
CONSTITUTION IN THE ) PRESENCE OF: )
PRESENCE OF:-
)
/S/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ /S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ /S/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
--------------------------- ------------------------------ ---------------------
DIRECTOR / SECRETARY DIRECTOR / SECRETARY DIRECTOR
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LEDGERGOODMAN ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
--------------------------- ------------------------------ ---------------------
NAME (PRINTED) NAME (PRINTED) NAME (PRINTED)
DOCUMENTS (COPY OF DOCUMENT ATTACHED IF MARKED) (SOME COPIES ARE REQUIRED BY LEGISLATION)
GENERAL STRATA OR COMMUNITY TITLE (CLAUSE 23)
X PROPERTY CERTIFICATE FOR THE LAND _ PROPERTY CERTIFICATE FOR STRATA COMMON PROPERTY
X PLAN OF THE LAND _ PLAN CREATING STRATA COMMON PROPERTY
_ UNREGISTERED PLAN OF THE LAND _ STRATA BY-LAWS NOT SET OUT IN LEGISLATION
_ PLAN OF LAND TO BE SUBDIVIDED _ STRATA DEVELOPMENT CONTRACT OR STATEMENT
_ DOCUMENT THAT IS TO BE LODGED WITH A RELEVANT PLAN _ STRATA MANAGEMENT STATEMENT
_ LEASEHOLD STRATA: LEASE OF LOT AND COMMON PROPERTY
X S149(2) CERTIFICATE (ENVIRONMENTAL PLANNING AND _ PROPERTY CERTIFICATE FOR NEIGHBOURHOOD PROPERTY
ASSESSMENT ACT 1979) _ PLAN CREATING NEIGHBOURHOOD PROPERTY
X S149(5) INFORMATION INCLUDED IN THAT CERTIFICATE _ NEIGHBOURHOOD DEVELOPMENT CONTRACT
X SEWERAGE CONNECTIONS DIAGRAM _ NEIGHBOURHOOD MANAGEMENT STATEMENT
X SEWER MAINS DIAGRAM _ PROPERTY CERTIFICATE FOR PRECINCT PROPERTY
X DOCUMENT THAT CREATED OR MAY HAVE CREATED AN _ PLAN CREATING PRECINCT PROPERTY
EASEMENT, PROFIT PRENDRE, RESTRICTION ON USE OR _ PRECINCT DEVELOPMENT CONTRACT
POSITIVE COVENANT DISCLOSED IN THIS CONTRACT _ PRECINCT MANAGEMENT STATEMENT
X S88G CERTIFICATE (POSITIVE COVENANT) _ PROPERTY CERTIFICATE FOR COMMUNITY PROPERTY
_ PLAN CREATING COMMUNITY PROPERTY
X SURVEY REPORT _ COMMUNITY DEVELOPMENT CONTRACT
_ SECTION 317A CERTIFICATE (CERTIFICATE OF COMPLIANCE) _ COMMUNITY MANAGEMENT STATEMENT
X BUILDING CERTIFICATE GIVEN UNDER LEGISLATION _ DOCUMENT DISCLOSING A CHANGE OF BY-LAWS
_ INSURANCE CERTIFICATE (HOME BUILDING ACT 1989) _ DOCUMENT DISCLOSING A CHANGE IN A
_ SECTION 24 CERTIFICATE (SWIMMING POOLS ACT 1992)
_ OLD SYSTEM DOCUMENT _ DOCUMENT DISCLOSING A CHANGE IN BOUNDARIES
_ CROWN TENURE CARD
_ CROWN PURCHASE STATEMENT OF ACCOUNT
CHOICES
ADJOINING LAND OWNED BY VENDOR X NO _ YES - PURCHASER CANNOT REQUIRE VENDOR TO CONTRIBUTE TO FENCING WORK
COVENANT/EASEMENT IN TRANSFER X NO _ YES - WORDING ATTACHED, WITH DESCRIPTION OF LAND BENEFITED (CLAUSE 4)
LAND TAX ADJUSTMENT REQUIRED _ NO _ YES -USING OWNER-OCCUPIED RESIDENTIAL CONCESSION _ YES (CLAUSE 14)
SPECIAL COMPLETION ADDRESS X NO _ YES - ADDRESS (CLAUSE 16):
TENANCIES _ NO _ YES - SUBJECT TO TENANCIES DISCLOSED IN THIS CONTRACT (CLAUSES 17, 24)
MONEY PAYABLE TO CROWN X NO _ YES - PURCHASER LIABLE FOR UP TO $#(31) (IF NOT STATED, NIL)(CLAUSE 26)
CONSENT TO TRANSFER REQUIRED X NO _ YES - VENDOR TO APPLY FOR CONSENT (CLAUSE 27)
GST INFORMATION (A NEW TAX SYSTEM (GOODS AND SERVICES TAX) ACT 1999) (CLAUSE 13)
THIS SALE IS A TAXABLE SUPPLY (SECTIONS 9-5 AND 195-1) _ NO X YES
TENANTS (COPY OF EACH LEASE AND ANY RELEVANT MEMORANDUM OR VARIATION ATTACHED)
PREMISES: #(32)
TENANT'S NAME (SHOW FULL NAME): #(32A) SEE CLAUSES 43 AND 44
NATURE OF TENANCY: #(32B)
EXPIRY DATE: #(32C)
OPTION PERIOD: #(32D)
RENT (SHOW WEEKLY/MONTHLY): #(32E)
STRATA / COMMUNITY MANAGEMENT AGENT'S NAME, ADDRESS AND PHONE NUMBER
(OR IF THERE IS NO MANAGEMENT AGENT, SECRETARY'S DETAILS)
NAME: #(33)
ADDRESS: #(33A)
PHONE: #(33B)
SPECIAL PROVISIONS ATTACHED TO AND FORMING PART OF CONTRACT FOR SALE OF LAND
BETWEEN
RESMED HOLDINGS LIMITED (VENDOR)
AND TRUST COMPANY OF AUSTRALIA LIMITED (PURCHASER)
DATED THE DAY OF 2002
30. MORE INTERPRETATION
--------------------
30.1 IN THIS CONTRACT UNLESS THE CONTEXT OTHERWISE REQUIRES:
- THE TERM "PURCHASER'S SOLICITOR" OR PHRASES REFERRING TO THE SOLICITOR FOR
THE PURCHASER INCLUDE THE PERSON OR ENTITY NAMED AS THE PURCHASER'S SOLICITOR OR
PURCHASER'S REPRESENTATIVE IN THIS CONTRACT.
- IF THERE IS ANY INCONSISTENCY BETWEEN CLAUSES 1 - 29 AND THESE SPECIAL
PROVISIONS, THESE PROVISIONS PREVAIL;
- A REFERENCE TO ANY LEGISLATION OR LEGISLATIVE PROVISION INCLUDES ANY
STATUTORY MODIFICATION OR RE-ENACTMENT OF, OR LEGISLATIVE PROVISION SUBSTITUTED
FOR, AND ANY SUBORDINATE LEGISLATION OR REGULATIONS ISSUED UNDER, THAT
LEGISLATION OR LEGISLATIVE PROVISION;
- THE SINGULAR INCLUDES THE PLURAL AND VICE VERSA;
- A REFERENCE TO ANY THING (INCLUDING ANY RIGHT) INCLUDES A PART OF THAT
THING;
- A REFERENCE TO AN INDIVIDUAL OR PERSON INCLUDES A CORPORATION,
PARTNERSHIP, JOINT VENTURE, ASSOCIATION, AUTHORITY, TRUST, STATE OR GOVERNMENT
AND VICE VERSA;
- A REFERENCE TO ANY GENDER INCLUDES ALL GENDERS;
- A REFERENCE TO ANY PARTY TO THIS CONTRACT OR ANY OTHER DOCUMENT OR
ARRANGEMENT INCLUDES THAT PARTY'S EXECUTORS, ADMINISTRATORS, SUBSTITUTES,
SUCCESSORS AND PERMITTED ASSIGNS;
- WHERE AN EXPRESSION IS DEFINED, ANOTHER PART OF SPEECH OR GRAMMATICAL FORM
OF THAT EXPRESSION HAS A CORRESPONDING MEANING; AND
- HEADINGS ARE FOR CONVENIENCE OF REFERENCE ONLY AND DO NOT AFFECT
INTERPRETATION.
30.2 TIME OF DAY REFERS TO THE LOCAL TIME THEN APPLICABLE IN SYDNEY, NEW
SOUTH WALES.
30.3 IF ANY PROVISION OF THIS CONTRACT IS OR BECOMES INVALID OR NOT
ENFORCEABLE IN ACCORDANCE WITH ITS TERMS, ALL OTHER PROVISIONS WHICH ARE
SELF-SUSTAINING AND CAPABLE OF SEPARATE ENFORCEMENT WITHOUT REGARD TO THE
INVALID OR UNENFORCEABLE PROVISION WILL BE AND CONTINUE TO BE VALID AND
ENFORCEABLE IN ACCORDANCE WITH THEIR TERMS.
31. AMENDMENTS TO PRINTED PROVISIONS
-----------------------------------
THE PROVISIONS OF THIS CONTRACT SPECIFIED IN THIS CLAUSE ARE DEEMED AMENDED AS
FOLLOWS:
31.1 SETTLEMENT CHEQUE
IN CLAUSE 1 THE DEFINITION OF "SETTLEMENT CHEQUE" IS DELETED AND REPLACED BY THE
FOLLOWING:
"AN UNENDORSED CHEQUE MADE PAYABLE TO THE PERSON TO BE PAID AND DRAWN ON ITS OWN
FUNDS BY A BANK THAT CARRIES ON BUSINESS IN AUSTRALIA OR, IF AUTHORISED IN
WRITING BY THE VENDOR OR THE VENDOR'S SOLICITORS, SOME OTHER CHEQUE;"
31.2 INVESTMENT OF DEPOSIT
TO CLAUSE 3 ADD: "NOTWITHSTANDING THE FOREGOING, IF THIS CONTRACT IS COMPLETED
BUT ONE PARTY (OR WHERE A PARTY COMPRISES TWO OR MORE PERSONS, ALL OF THEM)
FAILS TO FURNISH THE DEPOSITHOLDER WITH HIS TAX FILE NUMBER OR EXEMPTION FROM
QUOTATION THEREOF, ALL NET INTEREST AFTER DEDUCTIONS AS AFORESAID SHALL BE PAID
TO THE OTHER PARTY".
31.3 CLAIMS
IN CLAUSE 7.1.1 CHANGE "5%" TO "2.5%";
31.4 CLAUSE 13
CLAUSES 13.2, 13.4, 13.5, 13.6, 13.7, 13.8 AND 13.9 ARE DELETED.
31.5 CLAUSE 16.5
CLAUSE 16.5 IS DELETED.
31.6 POSSESSION BEFORE COMPLETION
TO CLAUSE 18 ADD:
"18.8 IF ANY FEE OR RENT PAYABLE BY THE PURCHASER IS IN ARREARS FOR A PERIOD
EXCEEDING 7 DAYS, OR IF THE PURCHASER DOES NOT COMPLY WITH ANY PART OF THIS
CLAUSE, IMMEDIATELY AFTER THE VENDOR SERVES NOTICE REQUIRING THE PURCHASER TO
VACATE THE PROPERTY THE PURCHASER MUST DO SO."
31.7 LAND TAX
CLAUSE 16.6 IS DELETED.
31.8 FACSIMILE
DELETE CLAUSE 20.6.5 AND SUBSTITUTE:
"20.6.5 SERVED IF IT IS SENT BY FAX TO THE PARTY'S SOLICITOR. THE DOCUMENT
WILL BE DEEMED TO HAVE BEEN DULY SERVED WHEN THE TRANSMISSION HAS BEEN COMPLETED
EXCEPT WHERE:
(A) THE SENDER'S MACHINE INDICATES A MALFUNCTION IN TRANSMISSION OR THE
RECIPIENT IMMEDIATELY NOTIFIES THE SENDER OF AN INCOMPLETE TRANSMISSION, IN
WHICH CASE THE DOCUMENT WILL BE DEEMED NOT TO HAVE BEEN SERVED; OR
(B) THE TRANSMISSION IS MADE ON A DAY WHICH IS NOT A BUSINESS DAY OR AFTER
5.00PM ON A BUSINESS DAY, IN WHICH CASES THE DOCUMENT WILL BE DEEMED TO HAVE
BEEN SERVED AT 9.00AM ON THE NEXT BUSINESS DAY;"
31.9 CLAUSE 29
CLAUSE 29 IS DELETED.
32. PURCHASER'S ACKNOWLEDGMENTS
----------------------------
SUBJECT TO SECTION 52A(2)(B) OF THE CONVEYANCING ACT, 1919 AND THE REGULATIONS
UNDER THAT ACT THE PURCHASER ACKNOWLEDGES AND AGREES THAT:
32.1 THE PURCHASER PURCHASES THE PROPERTY:
(A) RELYING ON THE PURCHASER'S OWN KNOWLEDGE, INSPECTION AND ENQUIRIES; AND
(B) IN ITS EXISTING CONDITION AND STATE OF REPAIR AND SUBJECT TO ALL
INFESTATIONS AND DILAPIDATION;
32.2 EXCEPT FOR ANYTHING CONTAINED IN THIS CONTRACT, ANY WARRANTIES BY OR ON
BEHALF OF THE VENDOR, EXPRESS OR IMPLIED, AS TO ANY PURPOSE FOR WHICH THE
PROPERTY, OR FOR WHICH ANY BUILDING WHICH IS OR MAY BE ERECTED ON THE PROPERTY,
CAN BE USED ARE EXPRESSLY NEGATIVED;
32.3 THE PURCHASER CANNOT MAKE A CLAIM, OBJECTION OR REQUISITION OR RESCIND
OR TERMINATE IN RESPECT OF ANY OF THE FOLLOWING MATTERS:
(A) THE PRESENCE ON THE PROPERTY OF ANY SEWER, MANHOLE, VENT, MAINS,
CONNECTIONS, WIRES, PIPES, CONDUITS, CHANNELS OR DISTRIBUTORS WITH RESPECT TO
ANY SERVICE AS REFERRED TO IN BRACKETS IN CLAUSE 10.1.2;
(B) ANY ROOF AND/OR YARDWATER DRAINAGE OR PIPE BEING CONNECTED TO THE SEWER;
(C) WHETHER OR NOT ANY IMPROVEMENTS HAVE BEEN CONSTRUCTED OVER OR ADJACENT
TO THE SEWER MAIN OR OTHER INSTALLATIONS OF SYDNEY WATER CORPORATION (OR OTHER
COMPETENT AUTHORITY) AND WHETHER OR NOT ANY APPROVALS FOR SUCH CONSTRUCTION HAVE
BEEN OBTAINED AND WHETHER OR NOT ANY CONDITIONS OF ANY APPROVAL HAVE BEEN
COMPLIED WITH.
33. DEATH, MENTAL ILLNESS, LIQUIDATION, ETC
-------------------------------------------
WITHOUT IN ANY MANNER NEGATING LIMITING OR RESTRICTING ANY RIGHTS OR REMEDIES
WHICH WOULD HAVE BEEN AVAILABLE TO THE VENDOR AT LAW OR IN EQUITY HAD THIS
CLAUSE NOT BEEN INCLUDED, SHOULD THE PURCHASER (OR, WHERE THE PURCHASER
COMPRISES MORE THAN ONE PERSON, ANY OF THEM) PRIOR TO COMPLETION:
(A) DIE OR BECOME MENTALLY ILL THEN THE VENDOR CAN RESCIND BY SERVING NOTICE
ON THE PURCHASER'S SOLICITOR; OR
(B) AS DEBTOR, ENTER INTO ANY COMPOSITION UNDER PART X OF THE BANKRUPTCY ACT
1966 (COMMONWEALTH) OR, BEING A BODY CORPORATE, RESOLVE TO GO INTO LIQUIDATION
OR BE SUBJECT TO AN APPLICATION FOR ITS WINDING UP MADE TO THE COURT OR ENTER
INTO ANY COMPROMISE OR ARRANGEMENT WITH ITS CREDITORS UNDER THE CORPORATIONS LAW
OR OTHER APPLICABLE LAW OR SHOULD ANY LIQUIDATOR, PROVISIONAL LIQUIDATOR,
RECEIVER, RECEIVER AND MANAGER OR OFFICIAL MANAGER BE APPOINTED IN RESPECT OF
THE PURCHASER, THEN THE PURCHASER SHALL IMMEDIATELY AND WITHOUT NOTICE BE IN
BREACH OF THIS CONTRACT IN AN ESSENTIAL RESPECT.
34. (DELETED)
35. SURVEY ETC
-----------
ANNEXED TO THIS CONTRACT IS A COPY OF
(A) A SURVEY REPORT BY ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇ PTY LIMITED DATED 5 DECEMBER
2001;
(B) BUILDING CERTIFICATE GIVEN UNDER LEGISLATION DATED 21 MARCH 2002 ISSUED
BY RYDE CITY COUNCIL.
THE PURCHASER CANNOT MAKE A CLAIM OR REQUISITION OR RESCIND OR TERMINATE IN
RESPECT OF ANY MATTER DISCLOSED OR REFERRED TO THEREIN INCLUDING, WITHOUT
LIMITING THE GENERALITY OF THE FOREGOING, ANY ENCROACHMENTS WHICH ARE SHOWN IN
THE SAID SURVEY REPORT OR ANY ENCROACHMENT ON TO ANY EASEMENT OR THE SIZE OR
LOCATION OF THE SUBSTATION PREMISES.
36. (DELETED)
37. (DELETED)
38. EXCLUSIONS
----------
THE PURCHASER ACKNOWLEDGES THAT:
(A) THE EXCLUSIONS LISTED BELOW ARE NOT INCLUDED IN THE SALE AND FORM PART
OF THE LESSEE'S FITTINGS UNDER THE LEASE REFERRED TO IN CLAUSE 44;
(B) THE EXCLUSIONS NEED NOT BE REMOVED FROM THE PROPERTY ON OR PRIOR TO
COMPLETION; AND
(C) RESMED LIMITED, AS LESSEE UNDER THE SAID LEASE, WILL BE OBLIGED TO
REMOVE THE EXCLUSIONS FROM THE PROPERTY PRIOR TO ITS VACATING THE PROPERTY,
SUBJECT TO THE TERMS OF THE SAID LEASE IN THAT REGARD.
EXCLUSIONS: ALL ARTWORK, ALL OFFICE FURNITURE, WORKSTATIONS, LABORATORY
BENCHES, BOARDROOM FURNITURE, MEETING ROOM FURNITURE, RESOURCES ROOM FURNITURE,
AUDIO VISUAL SYSTEMS, AUDIO/VIDEO CONFERENCING EQUIPMENT, ALL PRODUCTION
EQUIPMENT, PRODUCTION RELATED COMPRESSORS, PRODUCTION RELATED CHILLERS AND ALL
WAREHOUSE RACKING.
39. ENVIRONMENTAL MATTERS
----------------------
39.1 IN THIS CLAUSE:
"CONTAMINATION" MEANS ANY POLLUTION, CONTAMINATION, DEGRADATION OR POISONING OF
OR WHICH AFFECTS OR MAY AFFECT OR WHICH HAS OR MAY HAVE ITS ORIGIN (AND WHETHER
BEFORE, ON OR AFTER THE DATE OF THIS CONTRACT) ON THE PROPERTY OR ANY PART OF
THE PROPERTY OR ANY DAMAGE ARISING THEREFROM AND, WITHOUT LIMITATION, INCLUDES
CONTAMINATION AS DEFINED IN THE CONTAMINATED LAND MANAGEMENT ACT 1997 AND
ANYTHING REFERRED TO OR IDENTIFIED AS CONTAMINATION IN THE ENVIRONMENTAL REPORT.
"ENVIRONMENTAL LEGISLATION" MEANS ANY STATE OR FEDERAL STATUTE RELATING TO
HEALTH OR THE ENVIRONMENT (INCLUDING, WITHOUT LIMITATION, ENVIRONMENT AS DEFINED
IN THE CONTAMINATED LAND MANAGEMENT ACT 1997) INCLUDING, WITHOUT LIMITATION, THE
CLEAN AIR ACT 1961, THE CLEAN WATERS ACT 1970, THE CONTAMINATED LAND MANAGEMENT
ACT 1997, THE ENVIRONMENTAL OFFENCES & PENALTIES ACT 1989, THE ENVIRONMENTAL
PLANNING & ASSESSMENT ACT 1979, THE ENVIRONMENTALLY HAZARDOUS CHEMICALS ACT
1985, THE NOISE CONTROL ACT 1975, THE POLLUTION CONTROL ACT 1970, THE PROTECTION
OF THE ENVIRONMENT ADMINISTRATION ACT 1991, THE PROTECTION OF THE ENVIRONMENT
OPERATIONS ACT 1997, THE UNHEALTHY BUILDING LAND ACT 1990 AND THE WASTE
MINIMISATION & MANAGEMENT ACT 1995, ALL AS AMENDED FROM TIME TO TIME (OR ANY ACT
WHICH REPLACES OR SUBSTITUTES ANY OF THEM) TOGETHER WITH ALL REGULATIONS MADE
UNDER THEM AS AMENDED FROM TIME TO TIME;
"ENVIRONMENTAL REPORT" MEANS EACH OF THE GEOTECHNICAL & ENVIRONMENTAL STUDY
DATED 10 MARCH 1995 BY ▇▇▇▇▇▇ PARTNERS INTERNATIONAL PTY LIMITED (COPY ATTACHED)
AND THE ENVIRONMENTAL DUE DILIGENCE REPORT DATED DECEMBER 2001 BY ▇▇▇▇ ▇▇▇▇▇▇
AND ASSOCIATES PTY LIMITED (COPY ATTACHED).
39.2 (A) THE PURCHASER ACKNOWLEDGES AND WARRANTS THAT PRIOR TO THE DATE
OF THIS CONTRACT THE PURCHASER PERUSED AND WAS SATISFIED AS TO THE CONTENTS OF
THE ENVIRONMENTAL REPORT.
(B) THE VENDOR DOES NOT WARRANT THAT THE ENVIRONMENTAL REPORT WAS, OR IS AT
THE DATE OF THIS CONTRACT, ACCURATE OR COMPLETE.
39.3 THE PURCHASER SHALL NOT BE ENTITLED TO MAKE A CLAIM OR REQUISITION
EITHER BEFORE OR AFTER COMPLETION OR TO RESCIND OR TERMINATE OR DELAY COMPLETION
OF THIS CONTRACT IN RESPECT OF:
(A) ANY MATTER DISCLOSED OR REFERRED TO IN OR ARISING FROM THE ENVIRONMENTAL
REPORT; OR
(B) SUBJECT TO CLAUSES 39.5 AND 39.6 AND CLAUSE 15 OF THE LEASE REFERRED TO
IN CLAUSE 44:
(I) CONTAMINATION; OR
(II) ANY BREACH OF OR CLAIM, ORDER, DECLARATION, NOTICE OR PROPOSAL UNDER
ANY ENVIRONMENTAL LEGISLATION IN RESPECT OF CONTAMINATION; OR
(III) THE COSTS OR EXPENSES OF OR INCIDENTAL TO ANY INVESTIGATION, PROPOSAL
OR REMEDIATION IN RELATION TO CONTAMINATION.
39.4 SUBJECT TO CLAUSES 39.5 AND 39.6 AND CLAUSE 15 OF THE LEASE REFERRED TO
IN CLAUSE 44:
(A) THE PURCHASER MUST COMPLY AT THE PURCHASER'S COST WITH THE REQUIREMENTS
OF ANY ENVIRONMENTAL LEGISLATION RELATING TO CONTAMINATION OR OTHERWISE
AFFECTING THE PROPERTY AND WITH ALL NOTICES AND REQUIREMENTS OF ANY
GOVERNMENTAL, SEMI-GOVERNMENTAL, CITY, MUNICIPAL, LICENSING OR ANY OTHER
AUTHORITY HAVING JURISDICTION OR AUTHORITY IN THAT REGARD; AND
(B) THE PURCHASER RELEASES THE VENDOR AND RESMED LIMITED AND THE PURCHASER
INDEMNIFIES AND WILL KEEP INDEMNIFIED THE VENDOR AND RESMED LIMITED FROM AND
AGAINST ALL DEMANDS, CLAIMS, EXPENSES, PROCEEDINGS OR LIABILITIES WHATEVER AND
HOWEVER ARISING FROM OR IN RESPECT OF CONTAMINATION, OR ANY LEACHING WITHIN THE
PROPERTY OF CONTAMINATION OR FROM OR TO THE PROPERTY OF CONTAMINATION IN OR ON
TO OR FROM ANY ADJOINING LAND, WATERCOURSE OR BODY OF WATER, OR ANY OTHER MATTER
DISCLOSED HEREIN.
39.5 THE VENDOR WARRANTS THAT AS AT THE DATE OF THIS CONTRACT AND EXCEPT AS
DISCLOSED HEREIN IT IS NOT AWARE OF:
(A) ANY SUBSISTING NOTICES, ORDERS, FINES, PENALTIES OR PROCEEDINGS ISSUED,
IMPOSED OR COMMENCED BY THE ENVIRONMENT PROTECTION AUTHORITY, THE STATE
POLLUTION CONTROL COMMISSION OR ANY OTHER GOVERNMENTAL OR SEMI-GOVERNMENTAL BODY
OR AUTHORITY OR ANY OTHER PERSON OR CORPORATION FOR ANY POLLUTION OR
CONTAMINATION TO THE PROPERTY OR POLLUTION OR CONTAMINATION EMANATING FROM THE
PROPERTY AND AFFECTING ANY ADJOINING PROPERTY OR FOR COMPLIANCE REQUIREMENTS
UNDER ANY ENVIRONMENTAL LEGISLATION;
(B) CONTAMINATION OR THE LIKELIHOOD OF CONTAMINATION OF THE PROPERTY.
39.6 DESPITE ANY OTHER PROVISIONS OF THIS CONTRACT, THE VENDOR SHALL REMAIN
LIABLE TO THE PURCHASER AND TO ALL THIRD PARTIES AND AUTHORITIES IN RESPECT OF
ALL LIABILITY ARISING AS A RESULT OF THE PRESENCE OF ANY CONTAMINATION ON, IN,
ABOVE OR UNDER THE PROPERTY WHICH EXISTED AT OR PRIOR TO THE DATE OF COMPLETION
AND WHICH OCCURRED DURING OWNERSHIP OF THE PROPERTY BY THE VENDOR AND WHICH HAD
ITS ORIGIN ON THE PROPERTY (OTHER THAN CONTAMINATION DISCLOSED OR REFERRED TO
HEREIN) AND INDEMNIFIES THE PURCHASER FROM AND IN RESPECT OF ALL CLAIMS,
DEMANDS, SUITS, ACTIONS, PROCEEDINGS AND COSTS ARISING IN RESPECT OF SUCH
CONTAMINATION.
39.7 THE PURCHASER ACKNOWLEDGES THAT THE PURCHASER, WHEN ENTERING INTO THIS
CONTRACT, RELIED EXCLUSIVELY ON THE FOLLOWING MATTERS INDEPENDENTLY OF ANY
STATEMENTS, INDUCEMENTS OR REPRESENTATIONS MADE BY OR ON BEHALF OF THE VENDOR:
(A) INSPECTIONS OF AND INVESTIGATIONS RELATING TO THE PROPERTY INCLUDING THE
ENVIRONMENTAL REPORT MADE BY OR ON BEHALF OF THE PURCHASER;
(B) THE SKILL AND JUDGMENT OF THE PURCHASER, ITS CONSULTANTS AND
REPRESENTATIVES;
(C) OPINIONS OR ADVICE OBTAINED BY THE PURCHASER INDEPENDENTLY OF THE VENDOR
OR OF THE VENDOR'S AGENTS OR EMPLOYEES.
39.8 THE PROVISIONS OF THIS CLAUSE SHALL NOT MERGE ON COMPLETION OR IN THE
TRANSFER OF THE PROPERTY.
40. SERVICE CONTRACTS
------------------
40.1 IN THIS CLAUSE "SERVICE CONTRACTS" MEANS THE FOLLOWING CONTRACTS FOR
SERVICING OR MAINTAINING PLANT OR EQUIPMENT OR FOR THE PROVISION OF SERVICES AT
THE PROPERTY, COPIES OF WHICH HAVE BEEN PROVIDED TO THE PURCHASER PRIOR TO THE
DATE OF THIS CONTRACT:
(A) ELEVATOR SERVICE AGREEMENT WITH KONE ELEVATORS PTY LIMITED ("KONE");
(B) AIR CONDITIONING MAINTENANCE AGREEMENT WITH MCNEALL INDUSTRIAL
TECHNOLOGIES PTY LIMITED;
(C) CHILLER MAINTENANCE AGREEMENT WITH YORK INTERNATIONAL AUSTRALIA PTY
LIMITED;
(D) AIR CONDITIONING PREVENTIVE MAINTENANCE CONTRACT WITH MCNEALL INDUSTRIAL
TECHNOLOGIES PTY LIMITED;
(E) FIRE PROTECTION SERVICE AGREEMENT WITH AUTOMATIC FIRE PROTECTION DESIGN
PTY LIMITED;
(F) GENERATOR MAINTENANCE AGREEMENT WITH CUMMINS ENGINE COMPANY PTY LIMITED.
40.2 THE PARTIES ACKNOWLEDGE THAT:
(A) THE SERVICE CONTRACTS ARE WITH RESMED LIMITED;
(B) SUBJECT TO CLAUSE 40.4, THE SERVICE CONTRACTS WILL CONTINUE AFTER
COMPLETION.
40.3 THE PURCHASER APPROVES THE CONTRACTORS WITH WHOM RESMED LIMITED HAS
CONTRACTED UNDER THE SERVICE CONTRACTS AS SPECIALIST CONTRACTORS FOR THE PURPOSE
OF CLAUSE 14.1(B) OF THE LEASE REFERRED TO IN CLAUSE 44.
40.4 THE VENDOR SHALL PROCURE RESMED LIMITED TO ASSIGN AND THE PURCHASER
AGREES TO TAKE AN ASSIGNMENT OF THE ELEVATOR SERVICE AGREEMENT WITH KONE,
SUBJECT TO THE CONSENT OF KONE. THE VENDOR SHALL PROCURE RESMED LIMITED TO, AND
THE PURCHASER SHALL, USE ITS BEST ENDEAVOURS TO EFFECT SUCH ASSIGNMENT AS SOON
AS PRACTICABLE AFTER COMPLETION AND TO OBTAIN A RELEASE BY KONE OF THE
OBLIGATIONS OF RESMED LIMITED UNDER THE AGREEMENT.
40.5 THE PURCHASER CANNOT MAKE ANY REQUISITION OR CLAIM OR RESCIND OR
TERMINATE OR DELAY COMPLETION OF THIS CONTRACT IN RESPECT OF ANYTHING REFERRED
TO IN THIS CLAUSE OR ANYTHING IN RELATION TO THE SERVICE CONTRACTS.
40.6 THE PROVISIONS OF THIS CLAUSE SHALL NOT MERGE IN THE TRANSFER OR ON
COMPLETION.
41. GST
---
41.1 IN THIS CONTRACT:
"GST" MEANS THE SAME AS IN THE GST LAW;
"GST LAW" MEANS THE SAME AS "GST LAW" MEANS IN THE GST ACT.
41.2 CLAUSES 13.2, 13.4 13.5, 13.6, 13.7, 13.8 AND 13.9 ARE DEEMED DELETED.
41.3 ANY AMOUNTS PAYABLE UNDER THIS CONTRACT (OTHER THAN SUMS PAYABLE UNDER
THIS CLAUSE) DO NOT INCLUDE GST.
41.4 IF ANY GST IS OR BECOMES PAYABLE BY THE VENDOR IN RELATION TO ANY
ASPECT OF ITS SALE OF THE PROPERTY OR WITH RESPECT TO ANYTHING SUPPLIED (OR
DEEMED TO BE SUPPLIED) BY THE VENDOR TO THE PURCHASER UNDER THIS CONTRACT, THEN
THE PURCHASER MUST PAY THE VENDOR (IN ADDITION TO THE AMOUNTS REFERRED TO IN THE
PRECEDING SUBCLAUSE) A SUMS OR SUMS ON ACCOUNT OF GST, EACH SUM TO BE CALCULATED
BY MULTIPLYING THE AMOUNT PAYABLE BY THE PURCHASER FOR THE RELEVANT SUPPLY BY
THE PREVAILING GST RATE.
41.5 THE PURCHASER MUST MAKE PAYMENT UNDER THIS CLAUSE ON COMPLETION. IT IS
AN ESSENTIAL TERM OF THIS CONTRACT THAT SUCH SUMS ON ACCOUNT OF GST, AND ANY
SUMS PAYABLE BY THE PURCHASER UNDER THE NEXT SUBCLAUSE, ARE PAID ON OR BEFORE
COMPLETION AND THE PURCHASER IS NOT ENTITLED TO REQUIRE THE VENDOR TO COMPLETE
UNLESS SUCH SUMS ARE SO PAID.
41.6 IF ANY INTEREST, FINE, PENALTY, ADDITIONAL TAX OR OTHER SUM LEVIED
AGAINST THE VENDOR FOR NON-PAYMENT OF GST ("DEFAULT GST") BECOMES PAYABLE AS A
RESULT OF NON-PAYMENT OR DELAYED PAYMENT BY THE PURCHASER UNDER THIS CLAUSE, THE
PURCHASER MUST PAY ANY SUCH DEFAULT GST. IT SHALL NOT BE A DEFENCE TO A CLAIM
AGAINST THE PURCHASER FOR PAYMENT TO THE VENDOR OF ANY DEFAULT GST THAT THE
VENDOR HAS FAILED TO MITIGATE THE VENDOR'S DAMAGES BY NOT PAYING GST WHEN IT
FELL DUE.
41.7 REIMBURSEMENTS
A PARTY'S OBLIGATION TO REIMBURSE ANOTHER PARTY FOR AN AMOUNT PAID OR PAYABLE TO
A THIRD PARTY (EG A PARTY'S OBLIGATION TO PAY ANOTHER PARTY'S LEGAL COSTS)
INCLUDES GST ON THE AMOUNT PAID OR PAYABLE TO THE THIRD PARTY EXCEPT TO THE
EXTENT THAT THE PARTY BEING REIMBURSED IS ENTITLED TO CLAIM AN INPUT TAX CREDIT
FOR THAT GST.
41.8 INDEMNITIES
(A) IF A PAYMENT UNDER AN INDEMNITY GIVES RISE TO A LIABILITY TO PAY GST,
THE PAYER MUST PAY, AND INDEMNIFY THE PAYEE AGAINST, THE AMOUNT OF THAT GST.
(B) IF A PARTY HAS AN INDEMNITY FOR A COST ON WHICH THAT PARTY MUST PAY GST,
THE INDEMNITY IS FOR THE COST PLUS ALL GST (EXCEPT ANY GST FOR WHICH THAT PARTY
CAN OBTAIN AN INPUT TAX CREDIT).
(C) A PARTY MAY RECOVER PAYMENT UNDER AN INDEMNITY BEFORE IT MAKES THE
PAYMENT IN RESPECT OF WHICH THE INDEMNITY IS GIVEN.
41.9 THE PROVISIONS OF THIS CLAUSE SHALL NOT MERGE ON COMPLETION OR IN THE
TRANSFER OF THE PROPERTY.
42. ADJUSTMENTS
-----------
42.1 NOTWITHSTANDING ANY OTHER PROVISION OF THIS CONTRACT:
(A) NO ADJUSTMENTS OF COUNCIL RATES, WATER RATES OR CHARGES OR LAND TAX
("STATUTORY OUTGOINGS") SHALL BE MADE AT COMPLETION;
(B) ON OR PRIOR TO COMPLETION THE VENDOR MUST PAY ALL ARREARS OF STATUTORY
OUTGOINGS AND ALL INSTALMENTS OF STATUTORY OUTGOINGS CHARGED FOR PERIODS CURRENT
AT THE DATE OF COMPLETION ("INSTALMENTS") WHERE THOSE INSTALMENTS ARE PAYABLE ON
OR PRIOR TO COMPLETION.
42.2 THE PURCHASER CANNOT MAKE ANY REQUISITION OR CLAIM OR RESCIND OR
TERMINATE OR DELAY COMPLETION OF THIS CONTRACT, NOR REQUIRE A LAND TAX
CERTIFICATE SHOWING NO CHARGE ON THE LAND, IN RESPECT OF INSTALMENTS NOT DUE ON
OR PRIOR TO COMPLETION NOT HAVING BEEN PAID ON OR PRIOR TO COMPLETION.
42.3 THE PARTIES ACKNOWLEDGE THAT RESMED LIMITED IS OBLIGATED TO PAY
STATUTORY OUTGOINGS UNDER THE LEASE REFERRED TO IN CLAUSE 44.
43. SUBJECT TO LEASE
------------------
THE PROPERTY IS SOLD SUBJECT TO THE LEASE REGISTERED AS 6745832 (COPY ATTACHED)
AND CLAUSE 24 APPLIES. THE PURCHASER CANNOT MAKE A CLAIM OR REQUISITION IN
RESPECT OF THE VENDOR NOT HOLDING OR HANDING OVER ON COMPLETION THE ORIGINAL OF
THE SAID LEASE.
44. LEASE BACK
-----------
(A) UPON COMPLETION OF THIS CONTRACT THE PURCHASER (AS LANDLORD) SHALL GRANT
AND THE VENDOR SHALL PROCURE RESMED LIMITED ACN 003 765 142 (AS TENANT) TO
ACCEPT A LEASE OF THE PROPERTY FOR THE TERM AND AT THE RENT AND UPON THE
CONDITIONS CONTAINED IN THE FORM OF LEASE ANNEXED HERETO MARKED "Z".
(B) SUCH LEASE SHALL COMMENCE ON THE DATE OF COMPLETION OF THIS CONTRACT AND
THE COMMENCEMENT AND EXPIRY DATES OF THE TERM SHALL BE INSERTED IN THE LEASE
ACCORDINGLY.
(C) THE VENDOR SHALL PROCURE RESMED LIMITED TO EXECUTE AND HAVE DULY STAMPED
THE LEASE DOCUMENT IN TRIPLICATE;
(D) WITHIN 21 DAYS AFTER THE CONTRACT DATE THE VENDOR SHALL SUBMIT TO THE
PURCHASER THE STAMPED ORIGINAL EXECUTED LEASE AND A STAMPED COPY EXECUTED LEASE.
THE PURCHASER SHALL EXECUTE, AND PROCURE MACQUARIE ▇▇▇▇▇▇▇ FUNDS MANAGEMENT
LIMITED AS RESPONSIBLE ENTITY TO EXECUTE, THOSE DOCUMENTS. THE PURCHASER SHALL
HOLD THOSE DOCUMENTS IN ESCROW PENDING COMPLETION. IF THIS CONTRACT IS
RESCINDED OR TERMINATED, THE PURCHASER SHALL FORTHWITH THEREAFTER RETURN THOSE
DOCUMENTS TO THE VENDOR.
(E) ON COMPLETION THE PURCHASER SHALL DELIVER TO THE VENDOR THE COPY LEASE
DULY EXECUTED BY THE PURCHASER AND ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ FUNDS MANAGEMENT LIMITED.
ON COMPLETION THE VENDOR SHALL DELIVER TO THE PURCHASER A FURTHER STAMPED COPY
OF THE LEASE EXECUTED BY RESMED LIMITED.
(F) ON COMPLETION THE PURCHASER SHALL PROVIDE WRITTEN EVIDENCE TO THE VENDOR
THAT ANY MORTGAGEE OF THE PURCHASER CONSENTS TO THE LEASE.
(G) ON OR BEFORE COMPLETION THE VENDOR WILL PROCURE RESMED LIMITED TO
PROVIDE THE PURCHASER WITH A CERTIFICATE OF CURRENCY FOR POLICY IS10017/00 AS
REFERRED TO IN CLAUSE 7.7(B) OF THE LEASE EVIDENCING THAT CLAUSE 7.7(E)(I) OF
THE LEASE HAS BEEN COMPLIED WITH.
(H) PURSUANT TO THE PROVISIONS OF THIS CLAUSE, THE VENDOR SHALL NOT BE
REQUIRED TO GIVE VACANT POSSESSION OF THE PROPERTY UPON COMPLETION TO THE INTENT
THAT COMPLETION OF THIS CONTRACT IS CONDITIONAL ON THE LEASE BEING ENTERED INTO.
(I) THE VENDOR SHALL PROCURE RESMED LIMITED TO PAY TO THE PURCHASER ON
COMPLETION REGISTRATION FEES AND THE RENT (AS WELL AS GST ON THE RENT) FOR THE
FIRST MONTH PAYABLE IN RELATION TO THE LEASE AND THE PURCHASER SHALL ON
COMPLETION GIVE THE VENDOR FOR FORWARDING TO RESMED LIMITED A TAX INVOICE (AS
REFERRED TO IN CLAUSE 13.1) IN RESPECT OF THE RENT PAID. NOTWITHSTANDING THE
PROVISIONS OF THE LEASE EACH PARTY SHALL BEAR ITS OWN LEGAL COSTS IN RESPECT OF
PREPARING, NEGOTIATING AND ENGROSSING THE LEASE.
(J) FOLLOWING COMPLETION THE PURCHASER SHALL PROCURE THE REGISTRATION OF THE
LEASE WITHOUT DELAY AND THEREAFTER SHALL PROMPTLY DELIVER TO THE VENDOR THE
ORIGINAL OF THE LEASE.
(K) THE PROVISIONS OF THIS CLAUSE SHALL NOT MERGE ON COMPLETION.
45. NOTICE TO COMPLETE
--------------------
45.1 A NOTICE TO COMPLETE SERVED BY EITHER PARTY CAN REQUIRE COMPLETION TO
BE EFFECTED BY A TIME AND ON A DATE WHICH DATE IS 14 DAYS OR MORE (AS SPECIFIED
IN THE NOTICE) AFTER THE DATE OF SERVICE OF THE NOTICE. THE PARTIES AGREE THAT
SUCH NOTICE IS SUFFICIENT AT LAW AND IN EQUITY TO MAKE TIME OF THE ESSENCE IN
RESPECT OF THE TIME (BOTH THE DATE AND THE HOUR OF THE DAY) SPECIFIED IN THE
NOTICE.
45.2 THE PARTIES FURTHER AGREE THAT A PERIOD OF AT LEAST 14 DAYS FROM (BUT
EXCLUDING) THE DATE OF SERVICE OF THE NOTICE TO (AND INCLUDING) THE DATE FOR
COMPLETION SPECIFIED IN THE NOTICE WILL BE A SUFFICIENT AND REASONABLE PERIOD
FOR THE PARTY SERVED TO COMPLETE THIS CONTRACT, AND WILL BE A SUFFICIENT AND
REASONABLE PERIOD AS AFORESAID EVEN THOUGH THAT PERIOD INCLUDES (BUT DOES NOT
EXPIRE ON) ANY DAYS WHICH ARE NOT BUSINESS DAYS.
45.3 A PARTY CAN AT ANY TIME WITHDRAW HIS NOTICE TO COMPLETE WITHOUT
PREJUDICE TO HIS CONTINUING RIGHT TO GIVE ANY FURTHER SUCH NOTICE.
46. INTEREST
--------
46.1 IN THIS CLAUSE "NON-INTEREST DAY" MEANS ANY BUSINESS DAY AFTER THE
COMPLETION DATE DURING THE WHOLE OF WHICH BUSINESS DAY THE VENDOR IS UNABLE OR
UNWILLING TO COMPLETE THIS CONTRACT AND THE PURCHASER IS ABLE AND WILLING TO
COMPLETE.
46.2 IF COMPLETION IS NOT EFFECTED ON OR BEFORE THE COMPLETION DATE THEN,
WITHOUT PREJUDICE TO ANY OTHER REMEDY OF THE VENDOR AND IN ADDITION TO ALL OTHER
AMOUNTS PAYABLE BY THE PURCHASER TO THE VENDOR UNDER THIS CONTRACT, THE
PURCHASER MUST PAY TO THE VENDOR ON COMPLETION INTEREST ON THE #(M)BALANCE OF
THE PRICE AT THE RATE OF 10 PER CENT PER ANNUM.
46.3 THE INTEREST ACCRUES FROM DAY TO DAY FROM (BUT EXCLUDING) THE
COMPLETION DATE UNTIL (AND INCLUDING) THE DATE OF ACTUAL COMPLETION, BUT NO SUCH
INTEREST IS PAYABLE IN RESPECT OF ANY NON-INTEREST DAY, NOR IN RESPECT OF ANY
NON-BUSINESS DAY WHERE THE IMMEDIATELY PRECEDING BUSINESS DAY IS A NON-INTEREST
DAY.
46.4 IT IS AN ESSENTIAL TERM OF THIS CONTRACT THAT SUCH INTEREST IS PAID TO
THE VENDOR ON COMPLETION AND THE PURCHASER IS NOT ENTITLED TO REQUIRE THE VENDOR
TO COMPLETE UNLESS SUCH INTEREST IS SO PAID.
47. LIMITATION OF LIABILITY
-------------------------
47.1 THE PURCHASER (REFERRED TO IN THIS CLAUSE AS "THE CUSTODIAN") ENTERS
INTO THIS CONTRACT AS CUSTODIAN AND AGENT OF ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ FUNDS MANAGEMENT
LIMITED A.C.N. 067 796 641, THE RESPONSIBLE ENTITY OF THE TRUST AND IN NO OTHER
CAPACITY.
47.2 THE PARTIES OTHER THAN THE CUSTODIAN ACKNOWLEDGE THAT THE OBLIGATIONS
ARE INCURRED BY THE CUSTODIAN SOLELY IN ITS CAPACITY AS CUSTODIAN OF THE ASSETS
OF THE TRUST AND AS AGENT OF THE RESPONSIBLE ENTITY AND THAT THE CUSTODIAN WILL
CEASE TO HAVE ANY OBLIGATION UNDER THIS CONTRACT IF THE CUSTODIAN CEASES FOR ANY
REASON TO BE CUSTODIAN OF THE ASSETS OF THE TRUST.
47.3 THE CUSTODIAN WILL NOT BE LIABLE TO PAY OR SATISFY ANY OBLIGATIONS
EXCEPT TO THE EXTENT TO WHICH IT IS INDEMNIFIED BY THE RESPONSIBLE ENTITY OR
EXCEPT OUT OF THE ASSETS AGAINST WHICH IT IS ENTITLED TO BE INDEMNIFIED IN
RESPECT OF ANY LIABILITY INCURRED BY IT. THE OBLIGATION OF THE RESPONSIBLE
ENTITY TO INDEMNIFY THE CUSTODIAN AND THE RIGHT OF THE CUSTODIAN TO BE
INDEMNIFIED OUT OF THE ASSETS ARE LIMITED.
47.4 THE PARTIES OTHER THAN THE CUSTODIAN MAY ENFORCE THEIR RIGHTS AGAINST
THE CUSTODIAN ARISING FROM NON-PERFORMANCE OF THE OBLIGATIONS ONLY TO THE EXTENT
OF THE CUSTODIAN INDEMNITY AS PROVIDED ABOVE IN SUBCLAUSE 3.
47.5 IF ANY PARTY OTHER THAN THE CUSTODIAN DOES NOT RECOVER ALL MONEY OWING
TO IT ARISING FROM NON-PERFORMANCE OF THE OBLIGATIONS IT MAY NOT SEEK TO RECOVER
THE SHORTFALL BY:
(A) BRINGING PROCEEDINGS AGAINST THE CUSTODIAN IN ITS PERSONAL CAPACITY; OR
(B) APPLYING TO HAVE THE CUSTODIAN WOUND UP OR PROVING IN THE WINDING UP OF
THE CUSTODIAN.
47.6 EXCEPT IN THE CASE OF AND TO THE EXTENT OF FRAUD, NEGLIGENCE OR BREACH
OF DUTY ON THE PART OF THE CUSTODIAN UNDER ITS CUSTODY AGREEMENT WITH THE
RESPONSIBLE ENTITY, THE PARTIES OTHER THAN THE CUSTODIAN WAIVE THEIR RIGHTS AND
RELEASE THE CUSTODIAN FROM ANY PERSONAL LIABILITY WHATSOEVER, IN RESPECT OF ANY
LOSS OR DAMAGE:
(A) WHICH THEY MAY SUFFER AS A RESULT OF ANY:
(I) BREACH BY THE CUSTODIAN OF ANY OF ITS OBLIGATIONS; OR
(II) NON-PERFORMANCE BY THE CUSTODIAN OF THE OBLIGATIONS; AND
(B) WHICH CANNOT BE PAID OR SATISFIED FROM THE INDEMNITY SET OUT ABOVE IN
SUBCLAUSE 3 IN RESPECT OF ANY LIABILITY INCURRED BY IT.
47.7 THE PARTIES OTHER THAN THE CUSTODIAN ACKNOWLEDGE THAT THE WHOLE OF THIS
CONTRACT IS SUBJECT TO THIS CLAUSE AND SUBJECT TO SUBCLAUSE 6 THE CUSTODIAN
SHALL IN NO CIRCUMSTANCES BE REQUIRED TO SATISFY ANY LIABILITY ARISING UNDER, OR
FOR NON PERFORMANCE OR BREACH OF ANY OBLIGATIONS UNDER OR IN RESPECT OF, THIS
CONTRACT OR UNDER OR IN RESPECT OF ANY OTHER DOCUMENT TO WHICH IT IS EXPRESSED
TO BE A PARTY OUT OF ANY FUNDS, PROPERTY OR ASSETS OTHER THAN TO THE EXTENT THAT
THIS CONTRACT REQUIRES SATISFACTION OUT OF THE ASSETS OF THE TRUST UNDER THE
CUSTODIAN'S CONTROL AND IN ITS POSSESSION AS AND WHEN THEY ARE AVAILABLE TO THE
CUSTODIAN TO BE APPLIED IN EXONERATION FOR SUCH LIABILITY.
47.8 THE PARTIES ACKNOWLEDGE THAT THE RESPONSIBLE ENTITY OF THE TRUST IS
RESPONSIBLE UNDER THE CONSTITUTION FOR PERFORMING A VARIETY OF OBLIGATIONS
RELATING TO THE TRUST, INCLUDING UNDER THIS CONTRACT. THE PARTIES AGREE THAT
NO ACT OR OMISSION OF THE CUSTODIAN (INCLUDING ANY RELATED FAILURE TO SATISFY
ANY OBLIGATIONS) WILL CONSTITUTE FRAUD, NEGLIGENCE OR BREACH OF DUTY OF THE
CUSTODIAN FOR THE PURPOSES OF SUBCLAUSE 6 TO THE EXTENT TO WHICH THE ACT OR
OMISSION WAS CAUSED OR CONTRIBUTED TO BY ANY FAILURE OF THE RESPONSIBLE ENTITY
OR ANY OTHER PERSON TO FULFIL ITS OBLIGATIONS RELATING TO THE TRUST OR BY ANY
OTHER ACT OR OMISSION OF THE RESPONSIBLE ENTITY OR ANY OTHER PERSON.
47.9 NO ATTORNEY, AGENT OR OTHER PERSON APPOINTED IN ACCORDANCE WITH THIS
CONTRACT HAS AUTHORITY TO ACT ON BEHALF OF THE CUSTODIAN IN A WAY WHICH EXPOSES
THE CUSTODIAN TO ANY PERSONAL LIABILITY AND NO ACT OR OMISSION OF SUCH A PERSON
WILL BE CONSIDERED FRAUD, NEGLIGENCE OR BREACH OF DUTY OF THE CUSTODIAN FOR THE
PURPOSES OF SUBCLAUSE 6.
47.10 IN THIS CLAUSE THE "OBLIGATIONS" MEANS ALL OBLIGATIONS AND LIABILITIES
OF WHATEVER KIND UNDERTAKEN OR INCURRED BY, OR DEVOLVING UPON, THE CUSTODIAN
UNDER OR IN RESPECT OF THIS CONTRACT. "ASSETS" INCLUDES ALL ASSETS, PROPERTY
AND RIGHTS REAL AND PERSONAL OF ANY VALUE WHATSOEVER OF THE TRUST, AND
"RESPONSIBLE ENTITY" MEANS MACQUARIE ▇▇▇▇▇▇▇ FUNDS MANAGEMENT LIMITED OR ANY
REPLACEMENT RESPONSIBLE ENTITY OF THE TRUST FROM TIME TO TIME. "TRUST" MEANS
THE MACQUARIE ▇▇▇▇▇▇▇ CAPITAL TRUST, "CUSTODY AGREEMENT" MEANS THE AGREEMENT
MADE BETWEEN MACQUARIE ▇▇▇▇▇▇▇ FUNDS MANAGEMENT LIMITED (PREVIOUSLY KNOWN AS
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ MANAGEMENT AUSTRALIA LIMITED) AND TRUST COMPANY OF AUSTRALIA
LIMITED DATED 17 JANUARY 2000 OR SUCH REPLACEMENT AGREEMENT. "CONSTITUTION"
MEANS THE TRUST DEED ESTABLISHING THE TRUST DATED 5 APRIL 2002 AS AMENDED FROM
TIME TO TIME.
48. RESPONSIBLE ENTITY'S LIMITATION OF LIABILITY
------------------------------------------------
48.1 THE RESPONSIBLE ENTITY (AS TESTIFIED BY ITS EXECUTION OF THIS CONTRACT)
INCURS OBLIGATIONS UNDER THIS CONTRACT AS RESPONSIBLE ENTITY OF THE TRUST AND IN
NO OTHER CAPACITY. AN OBLIGATION CAN BE ENFORCED AGAINST THE RESPONSIBLE
ENTITY ONLY TO THE EXTENT TO WHICH IT IS SATISFIED OUT OF PROPERTY OF THE TRUST
OUT OF WHICH THE RESPONSIBLE ENTITY IS ACTUALLY INDEMNIFIED FOR THE OBLIGATION.
THIS LIMITATION OF THE RESPONSIBLE ENTITY'S LIABILITY APPLIES DESPITE ANY OTHER
PROVISION OF THIS CONTRACT AND EXTENDS TO ALL OBLIGATIONS.
48.2 THE PARTIES OTHER THAN THE RESPONSIBLE ENTITY MAY NOT SUE THE
RESPONSIBLE ENTITY IN ANY CAPACITY OTHER THAN AS RESPONSIBLE ENTITY OF THE
TRUST, INCLUDING SEEK THE APPOINTMENT OF A RECEIVER (EXCEPT IN RELATION TO
PROPERTY OF THE TRUST), A LIQUIDATOR, AN ADMINISTRATOR OR ANY SIMILAR PERSON TO
THE RESPONSIBLE ENTITY OR PROVE IN ANY LIQUIDATION, ADMINISTRATION OR
ARRANGEMENT OF OR AFFECTING THE RESPONSIBLE ENTITY (EXCEPT IN RELATION TO
PROPERTY OF THE TRUST).
48.3 THE PROVISIONS OF THIS CLAUSE DO NOT APPLY TO AN OBLIGATION TO THE
EXTENT THAT IT IS NOT SATISFIED BECAUSE UNDER THE TRUST DEED ESTABLISHING THE
TRUST OR BY OPERATION OF LAW THERE IS A REDUCTION IN THE EXTENT OF THE
RESPONSIBLE ENTITY'S INDEMNIFICATION OUT OF THE ASSETS OF THE TRUST, AS A RESULT
OF THE RESPONSIBLE ENTITY'S FRAUD, NEGLIGENCE OR BREACH OF TRUST. THE
RESPONSIBLE ENTITY IS NOT TO BE REGARDED AS BEING NEGLIGENT OR IN BREACH OF
TRUST TO THE EXTENT TO WHICH ANY FAILURE BY THE RESPONSIBLE ENTITY TO SATISFY
ITS OBLIGATIONS UNDER THIS CONTRACT HAS BEEN CAUSED OR CONTRIBUTED TO BY A
FAILURE BY ANY PERSON TO FULFIL ITS OBLIGATIONS IN RELATION TO THE TRUST OR ANY
OTHER ACT OR OMISSION OF ANOTHER PERSON.
48.4 NO ATTORNEY, AGENT, RECEIVER, OR RECEIVER AND MANAGER APPOINTED IN
ACCORDANCE WITH THIS CONTRACT HAS AUTHORITY TO ACT ON BEHALF OF THE RESPONSIBLE
ENTITY IN ANY WAY WHICH EXPOSES THE RESPONSIBLE ENTITY TO ANY PERSONAL LIABILITY
AND NO ACT OR OMISSION OF ANY SUCH PERSON WILL BE CONSIDERED FRAUD, NEGLIGENCE
OR BREACH OF TRUST OF THE RESPONSIBLE ENTITY FOR THE PURPOSE OF SUBCLAUSE 3 OF
THIS CLAUSE.
48.5 THE RESPONSIBLE ENTITY IS NOT OBLIGED TO DO OR REFRAIN FROM DOING
ANYTHING UNDER THIS CONTRACT (INCLUDING INCUR ANY LIABILITY) UNLESS THE
RESPONSIBLE ENTITY'S LIABILITY IS LIMITED IN THE SAME MANNER AS SET OUT IN
SUBCLAUSES 1 TO 3 OF THIS CLAUSE.
48.6 FOR THE PURPOSES OF THIS CLAUSE:
"OBLIGATIONS" MEANS ALL OBLIGATIONS AND LIABILITIES OF WHATSOEVER KIND,
UNDERTAKEN OR INCURRED BY, OR DEVOLVING UPON THE RESPONSIBLE ENTITY UNDER OR IN
RESPECT OF THIS CONTRACT OR ANY DEED, AGREEMENT OR OTHER INSTRUMENT COLLATERAL
WITH THIS CONTRACT OR GIVEN OR ENTERED INTO UNDER THIS CONTRACT AND INCLUDES,
WITHOUT LIMITATION, ALL LIABILITIES OF THE RESPONSIBLE ENTITY IN ANY WAY
CONNECTED WITH ANY REPRESENTATION, WARRANTY, CONDUCT, OMISSION, AGREEMENT OR
TRANSACTION RELATED TO THIS CONTRACT. "TRUST" MEANS THE MACQUARIE ▇▇▇▇▇▇▇
CAPITAL TRUST.
48.7 THE RESPONSIBLE ENTITY WARRANTS TO THE VENDOR THAT, IN ENTERING INTO
THIS CONTRACT, THE RESPONSIBLE ENTITY WILL NOT BE IN BREACH OF THE CUSTODY
AGREEMENT AND WILL BE ENTITLED TO BE INDEMNIFIED OUT OF THE ASSETS OF THE TRUST
IN RELATION TO ITS OBLIGATIONS AS PURCHASER ARISING UNDER THIS CONTRACT.
FORM : 07L LEASE
LICENCE : ▇▇-▇▇-▇▇▇ NEW SOUTH WALES
LICENSEE: DIBBS ▇▇▇▇▇▇ GOSLING REAL PROPERTY ACT 1900
PRIVACY NOTE: THIS INFORMATION IS LEGALLY REQUIRED AND WILL BECOME PART OF THE PUBLIC RECORD
STAMP DUTY OFFICE OF STATE REVENUE USE ONLY
(A) TORRENS TITLE PROPERTY LEASED: IF APPROPRIATE, SPECIFY THE PART OR PREMISES 1/872430
(B) LODGED BY DELIVERY CODE
CODE L
BOX
REFERENCE (OPTIONAL): 3055754.DAT (79432)
(C) LESSOR TRUST COMPANY OF AUSTRALIA LIMITED ACN 004 027 749
THE LESSOR LEASES TO THE LESSEE THE PROPERTY REFERRED TO ABOVE
(D) ENCUMBRANCES (IF APPLICABLE): 1. LEASE 6745832 2. 3.
RESMED LIMITED ACN 003 765 142
(E) LESSEE
(F) TENANCY:
(G) 1. TERM THREE (3) YEARS
2. COMMENCEMENT DATE
3. TERMINATING DATE
4. WITH AN OPTION TO RENEW FOR A PERIOD OF ONE (1) YEAR SET OUT IN ITEM 10
5. WITH AN OPTION TO PURCHASE SET OUT IN : NOT APPLICABLE
6. TOGETHER WITH AND RESERVING THE RIGHTS SET OUT IN ANNEXURE "A" HERETO.
7. INCORPORATES THE PROVISIONS OR ADDITIONAL MATERIAL SET OUT IN ANNEXURE(S) "A" HERETO.
8. INCORPORATES THE PROVISIONS SET OUT IN MEMORANDUM FILED AT LAND AND PROPERTY INFORMATION NEW SOUTH WALES AS
NO. : NOT APPLICABLE
9. THE RENT IS SET OUT IN ITEM 11 OF THE SUMMARY OF LEASE PARTICULARS
DATE _____________ / ______________ / _____________
DD MM YYYY
(H) I CERTIFY THAT THE PERSON(S) SIGNING OPPOSITE, WITH WHOM I AM PERSONALLY ACQUAINTED OR AS TO
WHOSE IDENTITY I AM OTHERWISE SATISFIED, SIGNED THIS INSTRUMENT IN MY PRESENCE.
SIGNATURE OF WITNESS:
NAME OF WITNESS: SEE ANNEXURE "C" FOR EXECUTION
ADDRESS OF WITNESS:
CERTIFIED CORRECT FOR THE PURPOSE OF THE REAL
PROPERTY ACT 1900 BY THE LESSOR.
SIGNATURE OF LESSOR
SIGNATURE OF LESSOR:
NOTE: WHERE APPLICABLE, THE LESSOR MUST COMPLETE THE STATUTORY DECLARATION
BELOW.
I CERTIFY THAT THE PERSON(S) SIGNING OPPOSITE, WITH WHOM I AM PERSONALLY ACQUAINTED OR AS TO WHOSE
IDENTITY I AM OTHERWISE SATISFIED, SIGNED THIS INSTRUMENT IN MY PRESENCE.
SIGNATURE OF WITNESS:
NAME OF WITNESS: SEE ANNEXURE "C" FOR EXECUTION
ADDRESS OF WITNESS:
CERTIFIED CORRECT FOR THE PURPOSE OF THE REAL
PROPERTY ACT 1900 BY THE LESSOR.
SIGNATURE OF LESSOR
SIGNATURE OF LESSOR:
(I) STATUTORY DECLARATION
I,
SOLEMNLY AND SINCERELY DECLARE THAT -
1. THE TIME FOR THE EXERCISE OF IN EXPIRED LEASE NO.
2. 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 IN THE PRESENCE OF -
SIGNATURE OF WITNESS SIGNATURE OF LESSOR:
NAME OF WITNESS:
ADDRESS OF WITNESS:
QUALIFICATION OF WITNESS:
THIS PAGE AND THE FOLLOWING PAGES CONSTITUTE ANNEXURE "A" TO LEASE
BETWEEN TRUST COMPANY OF AUSTRALIA LIMITED (LESSOR)
AND RESMED LIMITED (LESSEE)
DATED THIS DAY OF
-----------------------------------200-_
SUMMARY OF LEASE PARTICULARS
ITEM 1 THE LESSOR (CLAUSE 1.1):
TRUST COMPANY OF AUSTRALIA LIMITED ACN 004 027 749 OF ▇▇-▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇.
ITEM 2 THE LESSEE (CLAUSE 1.1):
RESMED LIMITED (ACN 003 765 142) OF ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇
ITEM 3 THE GUARANTOR (CLAUSES 1.1 AND 14):
NOT APPLICABLE
ITEM 4 THE LAND (CLAUSE 1.1):
THE WHOLE OF THE LAND IN THE FOLLOWING CERTIFICATE OF TITLE:
FOLIO 1/872430
ITEM 5 THE PREMISES (CLAUSE 1.1):
THE LAND AND THE IMPROVEMENTS ERECTED THEREON, KNOWN AS ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇ (TOGETHER WITH THE ITEMS LISTED IN ANNEXURE "B" HERETO).
ITEM 6 THE STATE/TERRITORY (CLAUSE 1.1):
NEW SOUTH WALES
ITEM 7 THE TERM (CLAUSE 1.1):
THREE (3) YEARS
ITEM 8 COMMENCEMENT DATE (CLAUSE 1.1):
200
ITEM 9 TERMINATION DATE (CLAUSE 1.1):
200
ITEM 10 FURTHER TERM (CLAUSE 3.2):
ONE FURTHER LEASE OF ONE (1) YEAR WHICH EXPIRES ON
200
ITEM 11 BASE RENT (CLAUSE A AND B.1):
TWO MILLION NINE HUNDRED THOUSAND DOLLARS ($2,900,000.00) PER ANNUM.
ITEM 12 BASE RENT INCREASE (CLAUSE B.2):
ON EACH ANNIVERSARY OF THE COMMENCEMENT DATE AND AT THE COMMENCEMENT OF THE
OPTION TERM.
ITEM 13 LESSEE'S BUSINESS (CLAUSES 1.1 AND 4.1(A)):
COMMERCIAL PREMISES AND MANUFACTURING AND DIRECT SALES OF SLEEP DISORDER
BREATHING PRODUCTS.
ITEM 14 NOT USED
ITEM 15 PUBLIC RISK INSURANCE (CLAUSE 7.1(A)):
TWENTY MILLION DOLLARS ($20,000,000.00).
ITEM 16 BANK GUARANTEE (CLAUSES 1.1 AND 14.1):
NOT APPLICABLE.
ITEM 17 OUTGOINGS YEAR (CLAUSE A):
THE 30TH DAY OF JUNE
ITEM 18 AGREEMENT FOR LEASE (CLAUSES 1.1 AND 1.2(H)):
NOT APPLICABLE
ITEM 19 PART OF LESSEE'S FITTINGS (CLAUSE 1.1):
ALL ARTWORK, ALL OFFICE FURNITURE, WORKSTATIONS, LABORATORY BENCHES, BOARDROOM
FURNITURE, MEETING ROOM FURNITURE, RESOURCES ROOM FURNITURE, AUDIO VISUAL
SYSTEMS, AUDIO/VIDEO CONFERENCING EQUIPMENT, ALL PRODUCTION EQUIPMENT,
PRODUCTION RELATED COMPRESSORS, PRODUCTION RELATED CHILLERS AND ALL WAREHOUSE
RACKING.
GENERAL LEASE CONDITIONS
49. DEFINITIONS AND INTERPRETATION
NOTE: DEFINITIONS AND MOST OPERATIVE PROVISIONS DEALING WITH RENT, OPERATING
EXPENSES AND CLEANING ARE CONTAINED IN THE RENT SCHEDULE.
49.1 DEFINITIONS
IN THIS LEASE THE FOLLOWING TERMS HAVE THE FOLLOWING MEANINGS UNLESS THE
CONTEXT OTHERWISE REQUIRES:
"AGREEMENT" MEANS THE WRITTEN AGREEMENT FOR THE GRANT OF THIS LEASE (IF ANY) AS
SPECIFIED IN ITEM 18;
"APPURTENANCE" INCLUDES ANY DRAIN, BASIN, SINK, TOILET OR URINAL;
"AUSTRALIAN INSTITUTE" MEANS AUSTRALIAN PROPERTY INSTITUTE INC. (STATE
DIVISION);
"AUTHORITY" INCLUDES ANY STATE OR FEDERAL GOVERNMENT, ANY SEMI OR LOCAL
GOVERNMENT, ANY STATUTORY, PUBLIC OR ANY OTHER PERSON, AUTHORITY,
INSTRUMENTALITY OR BODY HAVING JURISDICTION OVER THE BUILDING AND/OR THE LAND OR
ANY PART OF THEM OR ANYTHING IN RELATION TO THEM AND INCLUDES THE INSURANCE
COUNCIL;
"BANK GUARANTEE" MEANS AN IRREVOCABLE AND UNCONDITIONAL UNDERTAKING BY A TRADING
BANK OR OTHER FINANCIAL ORGANISATION APPROVED BY THE LESSOR TO PAY AN AMOUNT OF
MONEY TO THE LESSOR UPON DEMAND AND CONTAINING SUCH TERMS AND CONDITIONS AS ARE
ACCEPTABLE TO THE LESSOR AND AS THE LESSOR MAY DETERMINE IN ITS ABSOLUTE
DISCRETION;
"BUILDING" MEANS THE IMPROVEMENTS ERECTED ON THE LAND;
"CLAIM" INCLUDES ANY CLAIM, DEMAND, REMEDY, SUIT, INJURY, DAMAGE, LOSS, COST,
LIABILITY, ACTION, PROCEEDING, RIGHT OF ACTION, CLAIM FOR COMPENSATION AND CLAIM
FOR ABATEMENT OF RENT OBLIGATION;
"CLAUSE" MEANS A CLAUSE OF THIS LEASE; ("SUB-CLAUSE" HAS A SIMILAR MEANING); A
REFERENCE TO A CLAUSE FOLLOWED BY A NUMBER REFERS TO THE RELEVANT CLAUSE IN THIS
LEASE; A REFERENCE TO A CLAUSE FOLLOWED BY A LETTER OF THE ALPHABET REFERS TO
THE RELEVANT CLAUSE IN THE RENT SCHEDULE;
"COMMENCEMENT DATE" MEANS THE DATE OF COMMENCEMENT OF THIS LEASE AS SET OUT IN
ITEM 8;
"CORPORATION" - SEE CLAUSE 1.2(M);
"COST" INCLUDES ANY COST, CHARGE, EXPENSE, OUTGOING, PAYMENT OR OTHER
EXPENDITURE OF ANY NATURE (WHETHER DIRECT, INDIRECT OR CONSEQUENTIAL AND WHETHER
ACCRUED OR PAID), INCLUDING WHERE APPROPRIATE ALL RATES AND ALL REASONABLE AND
PROPER LEGAL FEES;
"DEFAULT RATE" MEANS THE RATE WHICH IS TWO PER CENT (2%) PER ANNUM ABOVE THE
HIGHEST OVERDRAFT RATE CHARGED AT THE DUE DATE FOR PAYMENT OF THE RELEVANT MONEY
BY THE LESSOR'S BANK FOR COMMERCIAL LOANS IN EXCESS OF $100,000. A NOTICE BY
ANY MANAGER OF THE LESSOR'S BANK SHALL IN THE ABSENCE OF MANIFEST ERROR BE
CONCLUSIVE EVIDENCE OF SUCH RATE;
"GUARANTOR" MEANS EACH GUARANTOR (IF ANY) NAMED IN THIS LEASE (AS IDENTIFIED IN
ITEM 3) AND INCLUDES ANY:
(A) SUCCESSOR OR PERMITTED ASSIGN OF ANY CORPORATE GUARANTOR;
(B) EXECUTOR, ADMINISTRATOR OR PERMITTED ASSIGN OF ANY NATURAL PERSON THAT
IS A GUARANTOR; AND
(C) PERSON THAT MAY FROM TIME TO TIME BE INCLUDED AS A GUARANTOR;
"INCOMING TENANT" MEANS THE PROPOSED ASSIGNEE OR SUBLESSEE AS REFERRED TO
IN CLAUSE 6;
"INSURANCE COUNCIL" MEANS THE INSURANCE COUNCIL OF AUSTRALIA LTD;
"ITEM" MEANS THE RELEVANT ITEM IN THE SUMMARY OF LEASE PARTICULARS;
"KEYS" MEANS KEYS, ACCESS CARDS OR OTHER METHODS OF ACCESS FROM TIME TO
TIME USED FOR THE BUILDING OR ANY PART OF IT;
"LAND" MEANS THE LAND IN THE CERTIFICATE(S) OF TITLE OR CONVEYANCE(S)
SPECIFIED IN ITEM 4;
"LAW" INCLUDES ANY REQUIREMENT OF ANY STATUTE, RULE, REGULATION, PROCLAMATION,
ORDINANCE OR BY-LAW, PRESENT OR FUTURE, AND WHETHER STATE, FEDERAL OR OTHERWISE;
"LESSEE" MEANS THE LESSEE NAMED IN THIS LEASE (AS IDENTIFIED IN ITEM 2) AND
INCLUDES IN THE CASE OF A:
(A) CORPORATION THE LESSEE, ITS SUCCESSORS AND PERMITTED ASSIGNS;
(B) NATURAL PERSON THE LESSEE, HIS EXECUTORS, ADMINISTRATORS AND PERMITTED
ASSIGNS;
"LESSEE'S BUSINESS" MEANS THAT BUSINESS CARRIED ON OR WHICH MAY BE CARRIED ON IN
THE PREMISES IN COMPLIANCE WITH THE PERMITTED USE OF THE PREMISES SPECIFIED IN
ITEM 13;
"LESSEE'S EMPLOYEES" INCLUDES THE LESSEE'S SUBLESSEES, LICENSEES AND
CONCESSIONAIRES, AND THE EMPLOYEES, AGENTS, CONTRACTORS, CONSULTANTS, CUSTOMERS,
WORKMEN, INVITEES AND CLIENTS OF THEM OR OF THE LESSEE, WHO MAY AT ANY TIME BE
IN OR UPON THE PREMISES, THE BUILDING OR THE LAND, WHETHER WITH OR WITHOUT
INVITATION;
"LESSEE'S FITTINGS" INCLUDES ALL FIXTURES, FITTINGS, PLANT, EQUIPMENT,
PARTITIONS OR OTHER ARTICLES AND CHATTELS OF ALL KINDS (OTHER THAN
STOCK-IN-TRADE) WHICH ARE NOT OWNED BY THE LESSOR AND AT ANY TIME ARE IN THE
PREMISES (INCLUDING, WITHOUT LIMITATION, THE ITEMS LISTED IN ITEM 19);
"LESSOR" MEANS THE LESSOR NAMED IN THIS LEASE (AS IDENTIFIED IN ITEM 1) AND
INCLUDES IN THE CASE OF A:
(A) CORPORATION THE LESSOR, ITS SUCCESSORS AND ASSIGNS;
(B) NATURAL PERSON THE LESSOR, HIS EXECUTORS, ADMINISTRATORS AND ASSIGNS;
"LESSOR'S BANK" MEANS THE FINANCIAL INSTITUTION WHICH AT THE RELEVANT TIME THE
LESSOR USES AS A BANK AND WHICH, IN THE EVENT OF MORE THAN ONE, SHALL BE THE
FINANCIAL INSTITUTION FROM TIME TO TIME SELECTED BY THE LESSOR IN ITS ABSOLUTE
DISCRETION;
"LESSOR'S FIXTURES" INCLUDES:
(A) GENERAL: ALL PLANT AND EQUIPMENT, MECHANICAL OR OTHERWISE, FITTINGS,
FIXTURES, FURNITURE, FURNISHINGS OF ANY KIND, INCLUDING WINDOW COVERINGS, BLINDS
AND LIGHT FITTINGS FROM TIME TO TIME IN THE PREMISES OR ANY PART OF THEM AND
OWNED OR SUPPLIED BY THE LESSOR (INCLUDING THE ITEMS LISTED IN ANNEXURE "B"
HERETO);
(B) FIRE FIGHTING: ALL STOP COCKS, FIRE HOSES, HYDRANTS, OTHER FIRE
PREVENTION AIDS AND ALL FIRE FIGHTING SERVICES FROM TIME TO TIME LOCATED IN THE
PREMISES OR WHICH MAY SERVICE THE PREMISES AND BE IN COMMON AREAS NEAR THE
PREMISES;
"MONTH" OR "MONTHLY" MEANS RESPECTIVELY CALENDAR MONTH AND CALENDAR MONTHLY;
"NOTICE" MEANS ANY NOTICE IN WRITING, ANY STATEMENT IN WRITING, ANY WRITTEN
MATERIAL AND ANY OTHER WRITTEN COMMUNICATION;
"OFFICER" INCLUDES ANY DIRECTOR, ALTERNATE DIRECTOR, SECRETARY, ASSISTANT
SECRETARY, EXECUTIVE OFFICER, ATTORNEY AND MANAGING AGENT OF THE PARTICULAR
PARTY;
"PARAGRAPH" MEANS A PARAGRAPH OF A CLAUSE OF THIS LEASE; ("SUB-PARAGRAPH"
HAS A SIMILAR MEANING);
"PARTY" MEANS A PARTY TO THIS LEASE AND INCLUDES ANY GUARANTOR;
"PERSON" INCLUDES A NATURAL PERSON AND A CORPORATION;
"PREMISES" MEANS THE BUILDING AND, IF SO SPECIFIED IN ITEM 5, THE LAND AND
INCLUDES ANY OF THE LESSOR'S FIXTURES FROM TIME TO TIME IN THEM;
"PROPOSED WORK" INCLUDES ANY PROPOSED WORK, ALTERATION, ADDITION OR INSTALLATION
IN OR TO THE PREMISES AND/OR TO THE BUILDING AND/OR TO THE LESSOR'S FIXTURES
AND/OR TO THE EXISTING LESSEE'S FITTINGS BY THE LESSEE AND/OR BY THE LESSEE'S
EMPLOYEES;
"REINSTATEMENT NOTICE" MEANS ANY NOTICE GIVEN BY THE LESSOR TO THE LESSEE OF ITS
INTENTION TO RE-INSTATE THE BUILDING AND/OR MAKE THE PREMISES FIT FOR OCCUPATION
AND USE OF AND/OR ACCESSIBLE TO THE LESSEE (AS APPROPRIATE);
"RENT" MEANS AND INCLUDES EACH OF THE RENTS AND ANY OTHER MONEYS THAT MAY AT ANY
TIME BE PAYABLE ON ANY ACCOUNT BY OR ON BEHALF OF THE LESSEE, INCLUDING SUCH
RENTS OR OTHER MONEYS REFERRED TO IN THE RENT SCHEDULE;
"RENT SCHEDULE" MEANS THE SCHEDULE TO THIS LEASE WHICH INCLUDES PROVISIONS
DEALING WITH RENT;
"REQUIREMENT" INCLUDES ANY REQUIREMENT, NOTICE, ORDER, DIRECTION,
RECOMMENDATION, STIPULATION OR SIMILAR NOTIFICATION RECEIVED FROM OR GIVEN BY
ANY AUTHORITY OR PURSUANT TO ANY LAW, WHETHER IN WRITING OR OTHERWISE AND
NOTWITHSTANDING TO WHOM SUCH REQUIREMENT IS ADDRESSED OR DIRECTED;
"SERVICES" MEANS ALL SERVICES OR SYSTEMS OF ANY NATURE FROM TIME TO TIME
PROVIDED TO THE BUILDING AND/OR TO THE LAND OR AVAILABLE FOR USE, AND INCLUDES
THE PROVISIONS OF ANY ELECTRONIC MEDIUM, ENERGY SOURCE, LIGHTING, GAS, FUEL,
POWER, WATER, SEWERAGE, DRAINAGE, LOADING DOCKS, PLANT ROOMS, STORAGE AREAS,
FIRE SERVICES, SPRINKLER SYSTEMS OR DEVICES, LIFTS, ESCALATORS, AIR-CONDITIONING
AND THE FITTINGS, FIXTURES, APPLIANCES, PLANT AND EQUIPMENT UTILISED FOR ANY
SUCH SERVICES, AND INCLUDES ANY SERVICES OR SYSTEMS FROM TIME TO TIME UTILISED
FOR ACCESS TO THE BUILDING;
"STATE" MEANS THE STATE OR TERRITORY OF AUSTRALIA SPECIFIED IN ITEM 6;
"SUMMARY OF LEASE PARTICULARS" MEANS THE SUMMARY OF LEASE PARTICULARS TO THIS
LEASE AND INCLUDES ALL THE INFORMATION FROM TIME TO TIME CONTAINED OR DEEMED TO
BE CONTAINED IN IT;
"TERM" MEANS THE TERM OF THIS LEASE AS SPECIFIED IN ITEM 7 AND SHALL BE DEEMED
TO COMPRISE THAT PERIOD FROM AND INCLUDING THE COMMENCEMENT DATE TO AND
INCLUDING THE TERMINATION DATE;
"TERMINATION DATE" MEANS THE DATE OF TERMINATION OF THIS LEASE AS SPECIFIED IN
ITEM 9;
"THIS LEASE" OR "THE LEASE" MEANS AND INCLUDES THIS LEASE AND ALL SCHEDULES,
APPENDICES, ANNEXURES AND EXHIBITS TO IT AND THE RULES (IF ANY) FROM TIME TO
TIME CURRENT;
"WRITING" AND WORDS OF SIMILAR OUTPUT - SEE CLAUSE 1.2(L).
49.2 INTERPRETATION
(A) PLURALS: WORDS IMPORTING THE SINGULAR NUMBER INCLUDE THE PLURAL AND VICE
VERSA.
(B) GENDER: WORDS IMPORTING ANY PARTICULAR GENDER INCLUDE ALL GENDERS.
(C) PARTIES JOINTLY AND SEVERALLY BOUND: WHERE
(I) THE LESSEE OR THE GUARANTOR COMPRISES MORE THAN ONE PERSON; AND
(II) A COVENANT OR AGREEMENT IS MADE BY OR ON BEHALF OF SUCH PARTY,
SUCH COVENANT OR AGREEMENT ON THEIR PART SHALL BIND SUCH PERSONS
JOINTLY AND EACH OF THEM SEVERALLY.
(D) STATUTES AND REGULATIONS: REFERENCE TO STATUTES, REGULATIONS, ORDINANCES
OR BY-LAWS INCLUDES ALL STATUTES, REGULATIONS, ORDINANCES OR BY-LAWS AMENDING,
CONSOLIDATING OR REPLACING THEM.
(E) COVENANTS:
(I) EVERY OBLIGATION UNDERTAKEN BY ANY OF THE PARTIES OR ARISING FROM
THIS LEASE OR THE AGREEMENT SHALL:
(A) NOTWITHSTANDING THE FORM OR CONTEXT OF THE WORDING, BE DEEMED TO BE
AND BE CONSTRUED AS A COVENANT BY THE PARTY UNDERTAKING SUCH OBLIGATION; AND
(B) UNLESS THE CONTEXT OTHERWISE REQUIRES, BE CONSTRUED AS CONTINUING
THROUGHOUT THE TERM AND ANY HOLDING OVER PERIOD AND THEREAFTER SO FAR AS THE
OBLIGATION REMAINS TO BE OBSERVED OR PERFORMED.
(II) EVERY COVENANT BY THE LESSEE SHALL BE DEEMED TO INCLUDE A COVENANT
BY THE LESSEE TO PROCURE COMPLIANCE WITH THE COVENANT BY EACH OF THE LESSEE'S
EMPLOYEES.
(F) SEVERABILITY: ALL PROVISIONS OF THIS LEASE SHALL SO FAR AS POSSIBLE BE
CONSTRUED SO AS NOT TO BE INVALID, ILLEGAL OR UNENFORCEABLE IN ANY RESPECT BUT,
IF ANY PROVISION ON ITS TRUE INTERPRETATION IS ILLEGAL, INVALID OR
UNENFORCEABLE, THAT PROVISION SHALL SO FAR AS POSSIBLE BE READ DOWN TO SUCH
EXTENT AS MAY BE NECESSARY TO ENSURE THAT IT IS NOT ILLEGAL, INVALID OR
UNENFORCEABLE AND AS MAY BE REASONABLE IN ALL THE CIRCUMSTANCES SO AS TO GIVE IT
A VALID OPERATION OF A PARTIAL CHARACTER. IF ANY SUCH PROVISION OR PART OF IT
CANNOT BE SO READ DOWN, SUCH PROVISION OR PART SHALL BE DEEMED TO BE VOID AND
SEVERABLE AND THE REMAINING PROVISIONS OF THIS LEASE SHALL NOT IN ANY WAY BE
AFFECTED OR IMPAIRED.
(G) NO LIMITATION: NO WORD, WORDS OR PROVISION OF THIS LEASE SHALL OPERATE
TO LIMIT OR IN ANY WAY PREJUDICE THE EFFECT OF ANY OTHER WORD, WORDS OR
PROVISIONS OF THIS LEASE UNLESS IT IS EXPRESSLY PROVIDED OTHERWISE.
(H) EXTRINSIC TERMS: SUBJECT TO THE PROVISIONS OF ANY WRITTEN MATERIAL
ENTERED INTO AND APPROVED BY THE LESSOR AND TO WHICH THE LESSOR AND THE LESSEE
ARE PARTIES, THE LESSOR AND THE LESSEE AGREE THAT:
(I) THE TERMS CONTAINED IN THIS LEASE AND THE AGREEMENT COVER AND
COMPRISE THE WHOLE OF THE AGREEMENT IN RESPECT OF THE PREMISES BETWEEN THE
LESSOR AND THE LESSEE;
(II) NO FURTHER TERMS, WHETHER IN RESPECT OF THE PREMISES OR OTHERWISE,
SHALL BE IMPLIED OR ARISE BETWEEN THE LESSOR AND THE LESSEE BY WAY OF COLLATERAL
OR OTHER AGREEMENT MADE BY OR ON BEHALF OF THE LESSOR OR BY OR ON BEHALF OF THE
LESSEE ON OR BEFORE OR AFTER THE EXECUTION OF THIS LEASE, AND ANY IMPLICATION OR
COLLATERAL OR OTHER AGREEMENT IS EXCLUDED AND NEGATIVED; AND
(III) TO THE EXTENT OF ANY INCONSISTENCY BETWEEN THE PROVISIONS OF THE
AGREEMENT AND THIS LEASE, THE PROVISIONS OF THIS LEASE SHALL PREVAIL AND TAKE
EFFECT.
(FOR THE PURPOSES ONLY OF THIS CLAUSE 1.2(H), THE TERM "LESSEE" SHALL
INCLUDE "GUARANTOR").
(I) HEADINGS: HEADINGS, BOLD LETTERING AND THE TABLE OF CONTENTS TO THIS
LEASE HAVE BEEN INSERTED FOR GUIDANCE ONLY, AND SHALL NOT FORM PART OF THE
CONTEXT AND SHALL NOT LIMIT OR GOVERN THE CONSTRUCTION OF THIS LEASE.
(J) BODIES AND AUTHORITIES:
(I) WHERE A REFERENCE IS MADE TO ANY PERSON, BODY OR AUTHORITY SUCH
REFERENCE SHALL, IF THE PERSON, BODY OR AUTHORITY HAS CEASED TO EXIST, BE DEEMED
A REFERENCE TO THE PERSON, BODY OR AUTHORITY AS THEN SERVES SUBSTANTIALLY THE
SAME OBJECTS AS THAT PERSON, BODY OR AUTHORITY.
(II) ANY REFERENCE TO THE PRESIDENT OF SUCH PERSON, BODY OR AUTHORITY
SHALL, IN THE ABSENCE OF A PRESIDENT, BE READ AS A REFERENCE TO THE SENIOR
OFFICER FOR THE TIME BEING OF THE PERSON, BODY OR AUTHORITY OR SUCH OTHER PERSON
FULFILLING THE DUTIES OF PRESIDENT.
(K) CONSENT OF LESSOR: UNLESS THE CONTEXT OTHERWISE REQUIRES, WHERE THE
LESSOR HAS A DISCRETION OR ITS CONSENT OR APPROVAL IS REQUIRED FOR ANYTHING THE
LESSOR SHALL, CONSISTENT WITH ITS RIGHTS AND OBLIGATIONS AS LESSOR, NOT
UNREASONABLY WITHHOLD OR DELAY ITS DECISION, CONSENT OR APPROVAL.
(L) WRITING: A REFERENCE TO "WRITING" OR "WRITTEN" AND ANY WORDS OF SIMILAR
IMPORT INCLUDE PRINTING, TYPING, LITHOGRAPHY AND ANY OTHER MEANS OF REPRODUCING
CHARACTERS IN TANGIBLE AND VISIBLE FORM, INCLUDING ANY COMMUNICATION EFFECTED
THROUGH ANY ELECTRONIC MEDIUM IF SUCH COMMUNICATION IS SUBSEQUENTLY CAPABLE OF
REPRODUCTION IN TANGIBLE OR VISIBLE FORM.
(M) CORPORATION: A REFERENCE TO "CORPORATION" AND ANY OTHER WORDS OR
EXPRESSIONS USED OR DEFINED IN THE CORPORATIONS ACT 2001 SHALL, UNLESS THE
CONTEXT OTHERWISE REQUIRES, HAVE THE SAME MEANING AS GIVEN IN THE CORPORATIONS
ACT 2001.
(N) EMERGENCY: WHERE ANYTHING IS PERMITTED IN AN "EMERGENCY" THE OPINION OF
THE LESSOR ACTING REASONABLY AS TO THE EXISTENCE OR NON-EXISTENCE OF SUCH STATE
OF AFFAIRS SHALL BE CONCLUSIVE.
(O) UPON DEMAND: A REFERENCE TO "ON DEMAND", "OF DEMAND" OR "UPON DEMAND"
AND ANY OTHER WORDS OF SIMILAR IMPORT SHALL, UNLESS THE CONTEXT OTHERWISE
REQUIRES, MEAN WHICHEVER IS THE EARLIER OF:
(I) THE DATE ON WHICH THE LESSOR MAKES FORMAL DEMAND (WHETHER ORAL OR
IN WRITING); AND
(II) THE DATE ON WHEN THE MONEYS OUGHT IN THE CIRCUMSTANCES TO HAVE
BEEN PAID BY OR ON BEHALF OF THE LESSEE.
(P) LIQUIDATION: A REFERENCE TO "LIQUIDATION" AND WORDS OF SIMILAR IMPORT
EXCLUDES ANY LIQUIDATION FOR THE PURPOSE OF RECONSTRUCTION OR AMALGAMATION
PREVIOUSLY APPROVED IN WRITING BY THE LESSOR.
(Q) PROPER LAW: THIS LEASE SHALL BE GOVERNED BY THE LAWS OF THE STATE AND
THE PARTIES IRREVOCABLY SUBMIT TO THE NON-EXCLUSIVE JURISDICTION OF THE COURTS
OF THE STATE AND WHERE APPLICABLE THE FEDERAL COURTS OF AUSTRALIA.
(R) RELEVANT DATE: WHERE THE DAY OR LAST DAY FOR DOING ANYTHING OR ON WHICH
AN ENTITLEMENT IS DUE TO ARISE IS A SATURDAY, SUNDAY OR PUBLIC HOLIDAY IN THE
STATE, THE DAY OR LAST DAY FOR DOING THE THING OR DATE ON WHICH THE ENTITLEMENT
ARISES SHALL FOR THE PURPOSES OF THIS LEASE BE THE IMMEDIATELY FOLLOWING DAY
THAT IS NOT A SATURDAY, SUNDAY OR PUBLIC HOLIDAY.
50. EXCLUSION OF STATUTORY PROVISIONS
50.1 CONVEYANCING ACT
THE COVENANTS, POWERS AND PROVISIONS IMPLIED IN LEASES BY VIRTUE OF ANY LAW ARE
EXPRESSLY NEGATIVED.
50.2 MORATORIUM
TO THE EXTENT PERMITTED BY LAW THE APPLICATION TO THIS LEASE OR TO ANY PARTY OF
ANY LAW OR ANY REQUIREMENT OR ANY MORATORIUM HAVING THE EFFECT OF EXTENDING OR
REDUCING THE TERM, REDUCING OR POSTPONING THE PAYMENT OF RENT OR ANY PART(S) OF
IT OR OTHERWISE AFFECTING THE OPERATION OF THE TERMS OF THIS LEASE OR ITS
APPLICATION TO ANY PARTY IS EXCLUDED AND NEGATIVED.
51. TERM
51.1 TERM OF LEASE
THIS LEASE STARTS ON THE COMMENCEMENT DATE AND ITS PROVISIONS BIND THE PARTIES
ON AND FROM THAT DATE, WHENEVER THIS LEASE IS EXECUTED OR DATED. IT ENDS AT
MIDNIGHT ON THE TERMINATION DATE.
51.2 OPTION TO RENEW
IF THE LESSEE:
(A) WISHES TO HAVE A LEASE OF THE PREMISES GRANTED TO THE LESSEE FOR THE
FURTHER TERM SPECIFIED IN ITEM 10, TO COMMENCE IMMEDIATELY AFTER THE TERMINATION
DATE;
(B) GIVES THE LESSOR NOTICE TO THAT EFFECT NOT LESS THAN THREE (3) MONTHS
BEFORE THE TERMINATION DATE; AND
(C) IS NOT IN DEFAULT IN COMPLYING WITH ANY PROPER NOTICE GIVEN BY THE
LESSOR TO THE LESSEE REQUIRING THE LESSEE TO REMEDY ANY BREACH COMMITTED BY THE
LESSEE OF ANY OF THE COVENANTS, CONDITIONS OR AGREEMENTS CONTAINED IN THIS
LEASE, WITHIN THE TIME SPECIFIED IN THE NOTICE,
THE LESSOR SHALL GRANT TO THE LESSEE A LEASE OF THE PREMISES UPON THE SAME
COVENANTS, CONDITIONS AND AGREEMENTS AS ARE CONTAINED IN THIS LEASE EXCEPT THAT:
(D) THE TERM TO BE SPECIFIED IN ITEM 7 OF THE FURTHER LEASE SHALL BE THAT
SPECIFIED IN ITEM 10;
(E) THE DATE TO BE SPECIFIED IN ITEM 8 OF THE FURTHER LEASE SHALL BE THE DAY
AFTER THE TERMINATION DATE;
(F) THE DATE TO BE SPECIFIED IN ITEM 9 OF THE FURTHER LEASE SHALL BE THE
LAST DAY OF THE TERM SPECIFIED IN ITEM 10 AFTER THE DATE OF COMMENCEMENT OF THE
FURTHER LEASE;
(G) THE AMOUNT OF BASE RENT TO BE SPECIFIED IN ITEM 11 OF THE FURTHER LEASE
SHALL BE DETERMINED IN ACCORDANCE WITH CLAUSE B.2;
(H) THE NUMBER OF FURTHER LEASES (IF ANY) SPECIFIED IN ITEM 10 SHALL BE
REDUCED BY ONE AND IF THE RESULTING NUMBER IS ZERO, THEN THIS CLAUSE 3.2 WILL
NOT BE INCLUDED IN THE FURTHER LEASE.
51.3 HOLDING OVER
IF THE LESSOR PERMITS THE LESSEE TO CONTINUE TO OCCUPY THE PREMISES BEYOND THE
TERMINATION DATE (OTHERWISE THAN PURSUANT TO THE GRANT OF A FURTHER LEASE) THEN:
(A) THE LESSEE SHALL DO SO AS A MONTHLY TENANT ONLY AT A TOTAL RENTAL
PAYABLE MONTHLY IN ADVANCE, THE FIRST OF SUCH PAYMENTS TO BE MADE ON THE DAY
FOLLOWING THE TERMINATION DATE, AND BEING AN AMOUNT EQUAL TO ONE-TWELFTH OF THE
AGGREGATE OF THE RENT AND ANY OTHER MONEYS PAYABLE BY THE LESSEE TO THE LESSOR
PURSUANT TO THIS LEASE AS AT THE TERMINATION DATE;
(B) THE MONTHLY TENANCY SO CREATED SHALL BE DETERMINABLE AT ANY TIME BY
EITHER THE LESSOR OR THE LESSEE BY ONE (1) MONTH'S NOTICE GIVEN TO THE OTHER, TO
EXPIRE ON ANY DATE, BUT OTHERWISE THE TENANCY SHALL CONTINUE ON THE SAME TERMS
AND CONDITIONS SO FAR AS APPLICABLE TO A MONTHLY TENANCY AS ARE CONTAINED IN
THIS LEASE.
52. USE OF PREMISES AND BUILDING
52.1 PERMITTED USE
THE LESSEE SHALL:
(A) LESSEE'S BUSINESS: NOT WITHOUT THE PRIOR WRITTEN CONSENT OF THE LESSOR
USE THE PREMISES FOR ANY PURPOSE OTHER THAN THAT SPECIFIED IN ITEM 13;
(B) ALL TIMES CONDUCT THE LESSEE'S BUSINESS IN THE PREMISES;
(C) NOT USE THE PREMISES FOR THE PURPOSES OF A RESIDENCE;
(D) NOT KEEP ANY ANIMALS OR BIRDS IN THE PREMISES OR THE BUILDING;
(E) AT ITS OWN COST KEEP THE PREMISES FREE AND CLEAR OF PESTS, INSECTS AND
VERMIN;
(F) NOT (AND DISREGARDING ANY OTHER PROVISION OF THIS LEASE OR OF ANY
CONSENT OR OF ANY PERMISSION GRANTED PURSUANT TO THIS LEASE) DO OR CARRY ON IN
THE PREMISES OR ANY PART OF THEM ANY HARMFUL OR OFFENSIVE TRADE, BUSINESS OR
OCCUPATION OR ANYTHING WHATEVER WHICH SHALL OR MAY CAUSE ANNOYANCE, NUISANCE,
DAMAGE OR DISTURBANCE TO THE OCCUPIERS OR OWNERS OF ANY NEARBY PREMISES OR TO
THE LESSOR;
(G) NOT HOLD ANY AUCTION, BANKRUPT OR FIRE SALE ON THE PREMISES;
(H) NOT PREPARE OR COOK FOOD EXCEPT IN ANY AREAS WHICH MAY BE PROVIDED.
52.2 NO WARRANTY AS TO USE
THE LESSOR GIVES NO WARRANTY (EITHER PRESENT OR FUTURE) AS TO THE SUITABILITY OF
THE PREMISES FOR THE USE TO WHICH THE PREMISES MAY BE PUT. THE LESSEE SHALL:
(A) BE DEEMED TO HAVE ACCEPTED THIS LEASE WITH FULL KNOWLEDGE OF AND SUBJECT
TO ANY PROHIBITIONS OR RESTRICTIONS ON THE USE OF THE PREMISES FROM TIME TO TIME
UNDER OR IN PURSUANCE OF ANY LAWS OR ANY REQUIREMENTS;
(B) OBTAIN, MAINTAIN AND COMPLY WITH AT THE LESSEE'S COST THE REQUIREMENTS
OF ANY LAWS AND ALL CONSENTS OR APPROVALS FROM ALL AUTHORITIES WHICH MAY FROM
TIME TO TIME BE NECESSARY OR APPROPRIATE FOR THE LESSEE'S BUSINESS;
(C) NOT BY ANY ACT OR OMISSION CAUSE OR PERMIT ANY CONSENT OR APPROVAL AS
REFERRED TO IN CLAUSE 4.2(B) TO LAPSE OR BE REVOKED.
52.3 COMPLIANCE WITH LAWS AND REQUIREMENTS
(A) THE LESSEE SHALL:
(I) COMPLY WITH AND OBSERVE AT THE LESSEE'S OWN COST ALL LAWS AND ALL
REQUIREMENTS IN RELATION TO OR AFFECTING:
(A) ANY OF THE LESSEE'S FITTINGS INSTALLED IN THEM; AND/OR
(B) THE LESSEE'S PARTICULAR USE OR OCCUPATION OF THE PREMISES FROM TIME
TO TIME, INCLUDING SUCH AS ARISE AS A RESULT OF THE SEX OR NUMBER OF PERSONS IN
THE PREMISES,
WHETHER OR NOT ANY SUCH LAWS OR REQUIREMENTS ARE ADDRESSED TO OR
REQUIRED TO BE COMPLIED WITH BY EITHER OR BOTH OF THE LESSOR AND THE LESSEE OR
BY ANY OTHER PERSON. WHERE ANY SUCH LAWS OR REQUIREMENTS ARE NOTIFIED TO OR
SERVED UPON THE LESSEE THE LESSEE SHALL FORTHWITH PROVIDE A COMPLETE COPY OF
THEM TO THE LESSOR;
(II) BEFORE COMPLYING WITH ANY LAWS OR REQUIREMENTS AS REFERRED TO IN THIS
CLAUSE 4.3 OBTAIN THE WRITTEN CONSENT OF THE LESSOR AND OTHERWISE OBSERVE THE
PROVISIONS OF THIS LEASE.
(B) THE LESSOR MAY:
(I) (WITHOUT PREJUDICE TO ANY OF THE LESSOR'S OTHER RIGHTS IN RESPECT
OF NON-COMPLIANCE) ELECT AT THE LESSEE'S COST TO COMPLY WITH ANY SUCH LAWS OR
REQUIREMENTS (AS REFERRED TO IN THIS CLAUSE 4.3) EITHER IN PART OR WHOLE,
INCLUDING WHERE THE LESSEE FAILS TO COMPLY WITHIN THE APPROPRIATE TIME WITH ANY
OF ITS OBLIGATIONS; AND
(II) WHERE THE LESSOR DOES EXERCISE ANY RIGHTS AS REFERRED TO IN
PARAGRAPH (I), ELECT TO HAVE THE BALANCE OF ANY SUCH LAWS OR REQUIREMENTS
COMPLIED WITH BY THE LESSEE.
(C) STRUCTURAL ALTERATIONS: THE LESSEE SHALL NOT BE REQUIRED PURSUANT TO
THIS CLAUSE 4.3 TO EFFECT STRUCTURAL OR CAPITAL ALTERATIONS OR ADDITIONS EXCEPT
TO THE EXTENT THAT THE NEED TO COMPLY HAS BEEN CONTRIBUTED TO OR ARISES FROM THE
LESSEE'S PARTICULAR USE OF THE PREMISES, THE NUMBER OR SEX OF THE LESSEE AND
LESSEE'S EMPLOYEES OR FROM ANY DELIBERATE OR NEGLIGENT ACT OR OMISSION ON THE
PART OF THE LESSEE OR OF THE LESSEE'S EMPLOYEES.
(D) THE LESSEE SHALL UPON DEMAND PAY TO THE LESSOR ALL REASONABLE COSTS
INCURRED BY OR ON BEHALF OF THE LESSOR IN COMPLYING WITH ANY SUCH LAWS OR
REQUIREMENTS AS REFERRED TO IN THIS CLAUSE 4.3 AS IF SUCH MONEYS WERE RENT IN
ARREARS.
52.4 OVERLOADING
THE LESSEE SHALL NOT:
(A) OVERLOADING OF FLOOR: PLACE OR STORE ANY HEAVY ARTICLES OR MATERIALS ON
ANY OF THE FLOORS OF THE BUILDING WITHOUT THE PRIOR WRITTEN CONSENT OF THE
LESSOR, WHICH CONSENT SHALL ONLY BE GIVEN WHERE THE ARTICLES OF MATERIALS ARE
REASONABLY NECESSARY AND PROPER FOR THE CONDUCT OF THE LESSEE'S BUSINESS AND ARE
OF SUCH NATURE AND SIZE AS WILL NOT IN THE LESSOR'S OPINION CAUSE OR BE LIKELY
TO CAUSE ANY STRUCTURAL OR OTHER DAMAGE TO THE FLOORS OR WALLS OR ANY OTHER PART
OF THE PREMISES OR OF THE BUILDING. THE LESSOR SHALL IN ALL CASES BE ENTITLED
TO PRESCRIBE THE MAXIMUM WEIGHT FOR AND PROPER LOCATION OF SUCH HEAVY ARTICLES
OR MATERIALS IN THE PREMISES OR THE BUILDING, AND ANY DAMAGE DONE TO THE
BUILDING OR ANY PART OF IT BY TAKING IN OR REMOVING THEM OR DURING THE TIME THEY
ARE IN THE BUILDING SHALL BE MADE GOOD AND/OR PAID FOR UPON DEMAND BY THE LESSEE
(AS APPROPRIATE); OR
(B) OVERLOADING OF ELECTRICAL CIRCUITS: INSTALL ANY EQUIPMENT OR SYSTEM IN
THE PREMISES THAT OVERLOADS OR MAY OVERLOAD THE ELECTRICAL OR OTHER SERVICES TO
THE PREMISES. IF THE LESSOR AT THE REQUEST OF THE LESSEE UPGRADES THE SERVICES
TO ACCOMMODATE ANY EQUIPMENT OR SYSTEM WHICH THE LESSEE WISHES TO INSTALL, THE
LESSEE SHALL PAY TO THE LESSOR UPON DEMAND THE ENTIRE COST TO THE LESSOR OF SUCH
ALTERATIONS (INCLUDING CONSULTANTS' FEES) AND THE LESSOR MAY REQUIRE THE LESSEE
TO DEPOSIT WITH THE LESSOR THE ESTIMATED COST OF THEM BEFORE ANY SUCH
ALTERATIONS ARE COMMENCED. THE LESSOR GIVES NO WARRANTY AS TO THE SUITABILITY
OF ANY SUCH ALTERATIONS.
52.5 AIRCONDITIONING AND FIRE ALARM EQUIPMENT
WHERE ANY AIRCONDITIONING OR FIRE ALARM SYSTEM OF THE LESSOR IS INSTALLED IN THE
PREMISES, THE LESSEE SHALL NOT IN ANY WAY INTERFERE WITH ANY SUCH SYSTEM AND
SHALL NOT IN ANY MANNER OBSTRUCT OR HINDER ACCESS TO IT.
52.6 USE OF APPURTENANCES
THE LESSEE SHALL:
(A) NOT USE THE APPURTENANCES IN THE PREMISES FOR ANY PURPOSE OTHER THAN
THOSE FOR WHICH THEY WERE DESIGNED;
(B) NOT PLACE IN THE APPURTENANCES ANY SUBSTANCES WHICH THEY WERE NOT
DESIGNED TO RECEIVE; AND
(C) PAY TO THE LESSOR ANY REASONABLE COSTS OF MAKING GOOD ANY DAMAGE TO ANY
APPURTENANCES ARISING FROM ANY MISUSE CAUSED BY THE LESSEE OR BY THE LESSEE'S
EMPLOYEES.
52.7 NOT ERECT AWNING
THE LESSEE SHALL NOT ERECT OR INSTALL WINDOW COVERINGS, BLINDS, SCREENS OR
AWNINGS WITHOUT THE PRIOR WRITTEN CONSENT OF THE LESSOR, AND ANY WINDOW
COVERINGS, BLINDS, SCREENS OR AWNINGS HUNG, ERECTED OR INSTALLED IN OR NEAR THE
PREMISES SHALL BE OF NON-INFLAMMABLE MATERIALS AND SHALL COMPLY WITH ALL
RELEVANT PRESCRIBED OR RECOMMENDED STANDARDS OF THE AUSTRALIAN STANDARDS
ASSOCIATION AND OF ALL OTHER AUTHORITIES.
52.8 NOT DAMAGE
THE LESSEE SHALL NOT DAMAGE OR DEFACE OR MARK, OR WITHOUT THE LESSOR'S CONSENT
DRIVE ANY NAILS, SCREWS OR HOOKS INTO, ANY PART OF THE BUILDING. IF THE LESSEE
OR THE LESSEE'S EMPLOYEES DAMAGE, DEFACE OR MARK ANY PART OR PARTS OF THE
BUILDING, THE LESSEE SHALL FORTHWITH UPON DEMAND PAY TO THE LESSOR ALL COSTS IN
REPAIRING AND/OR REINSTATING SUCH PART OR PARTS OF THE BUILDING TO THEIR FORMER
CONDITION.
52.9 NOT ACCUMULATE RUBBISH
THE LESSEE SHALL KEEP THE PREMISES CLEAN (HAVING REGARD TO THEIR CONDITION AT
THE COMMENCEMENT DATE) AND SHALL NOT PERMIT ANY ACCUMULATION OF USELESS PROPERTY
OR RUBBISH IN THEM. NO RUBBISH OR WASTE SHALL AT ANY TIME BE BURNED UPON THE
PREMISES OR THE BUILDING BY THE LESSEE.
52.10 NOT THROW ITEMS FROM WINDOWS
THE LESSEE SHALL NOT THROW ANYTHING OUT OF THE WINDOWS OR DOORS OF THE PREMISES
OR THE BUILDING OR DOWN THE LIFT SHAFTS, PASSAGES OR SKYLIGHTS OR INTO THE LIGHT
AREAS OF THE BUILDING, OR DEPOSIT WASTE PAPER OR RUBBISH ANYWHERE EXCEPT IN
PROPER RECEPTACLES, OR PLACE ANYTHING UPON ANY SILL, LEDGE OR OTHER SIMILAR PART
OF THE BUILDING.
52.11 SIGNS
(A) THE LESSEE SHALL NOT DISPLAY ANY SIGN (OTHER THAN SIGNS EXISTING AT THE
COMMENCEMENT DATE) ON ANY PART OF THE OUTSIDE OF THE BUILDING EXCEPT WITH THE
PRIOR WRITTEN CONSENT OF THE LESSOR, AND THEN ONLY OF SUCH COLOUR, SIZE AND
STYLE AND IN SUCH PLACE OR PLACES AS SHALL BE FIRST APPROVED BY THE LESSOR.
(B) AT THE TERMINATION DATE OR OTHER DETERMINATION OF THIS LEASE THE LESSEE
SHALL AT ITS SOLE COST REMOVE ALL LETTERING, SIGNS AND OTHER DISTINCTIVE MARKS
FROM THE PREMISES AND THE BUILDING. THE LESSEE SHALL ALSO BE ENTITLED TO REMOVE
THE DEDICATION PLAQUE AT THE ENTRANCE TO THE PREMISES.
(C) SUBJECT TO CLAUSE 4.13, THE LESSOR SHALL NOT DISPLAY ANY SIGN ON OR AT
THE PREMISES EXCEPT WITH THE PRIOR WRITTEN CONSENT OF THE LESSEE, AND THEN ONLY
OF SUCH COLOUR, SIZE AND STYLE AND IN SUCH PLACE OR PLACES AS SHALL BE FIRST
APPROVED BY THE LESSEE.
52.12 INFECTIOUS ILLNESS
IF ANY INFECTIOUS ILLNESS OCCURS IN THE PREMISES OR THE BUILDING THE LESSEE
SHALL FORTHWITH GIVE NOTICE OF SUCH EVENT TO THE LESSOR AND TO ALL PROPER
AUTHORITIES, AND WHERE ANY SUCH INFECTIOUS ILLNESS IS CONFINED TO THE PREMISES
AND HAS RESULTED FROM THE USE OF THEM BY THE LESSEE OR BY THE LESSEE'S EMPLOYEES
THE LESSEE AT ITS COST SHALL THOROUGHLY FUMIGATE AND DISINFECT THE PREMISES TO
THE SATISFACTION OF THE LESSOR AND OF ALL RELEVANT AUTHORITIES.
52.13 FOR SALE/TO LET
THE LESSOR SHALL BE ENTITLED AT REASONABLE TIMES TO:
(A) PLACE ADVERTISEMENTS AND SIGNS ON SUCH PART(S) OF THE PREMISES AS IT
REASONABLY CONSIDERS APPROPRIATE WHERE THE BUILDING OR THE PREMISES ARE EITHER
FOR SALE OR AVAILABLE FOR LEASE; AND
(B) SHOW INTERESTED PERSONS THROUGH THE PREMISES.
THE LESSOR IN EXERCISING ITS RIGHTS UNDER THIS CLAUSE SHALL ENDEAVOUR TO
MINIMISE ANY INCONVENIENCE TO THE LESSEE OR THE LESSEE'S BUSINESS.
53. MAINTENANCE REPAIRS ALTERATIONS AND ADDITIONS
53.1 REPAIR OBLIGATIONS
(A) GENERAL REPAIR OBLIGATION: THE LESSEE SHALL DURING THE TERM AND ANY
HOLDING OVER KEEP THE PREMISES (INCLUDING LANDSCAPING ELEMENTS), THE LESSEE'S
FITTINGS AND ALL THE LESSOR'S FIXTURES IN THE PREMISES IN GOOD REPAIR AND
CONDITION HAVING REGARD TO THEIR STATE OF REPAIR AND CONDITION AT THE
COMMENCEMENT OF THIS LEASE (OR IF THIS LEASE IS ONE OF A SEQUENCE OF LEASES, TO
THEIR STATE OF REPAIR AND CONDITION AT THE COMMENCEMENT OF THE FIRST LEASE).
THIS OBLIGATION EXCLUDES:
(I) FAIR WEAR AND TEAR; AND
(II) DAMAGE TO THE PREMISES ARISING FROM FIRE, FLOOD, LIGHTNING, ▇▇▇▇▇,
▇▇▇▇▇▇▇, EARTHQUAKE, AIRCRAFT OR OTHER AERIAL DEVICE, RIOT, EXPLOSION, ACT OF
GOD, INHERENT DEFECT, TERRORISM, WAR OR OTHER DISABLING CAUSE OR DAMAGE TO THE
PREMISES WHERE THE LESSOR IS INDEMNIFIED BY AN INSURANCE POLICY TAKEN OUT BY THE
LESSOR OR WHICH WOULD BE TAKEN OUT BY A PRUDENT LESSOR IN RESPECT OF THE
BUILDING (OTHER THAN WHERE ANY INSURANCE MONEYS ARE IRRECOVERABLE THROUGH THE
ACT, OMISSION, NEGLECT, DEFAULT OR MISCONDUCT OF THE LESSEE OR THE LESSEE'S
EMPLOYEES)
(B) STRUCTURAL REPAIR: NOTHING IN THIS CLAUSE 5.1 SHALL IMPOSE ANY
OBLIGATION UPON THE LESSEE IN RESPECT OF ANY STRUCTURAL MAINTENANCE, REPLACEMENT
OR REPAIR EXCEPT WHERE RENDERED NECESSARY BY ANY ACT, OMISSION, NEGLECT, DEFAULT
OR MISCONDUCT OF THE LESSEE OR THE LESSEE'S EMPLOYEES OR BY ITS OR THEIR
PARTICULAR USE AND OCCUPANCY OF THE PREMISES OR BY THE INSTALLATION, USE OR
REMOVAL OF THE LESSEE'S FITTINGS.
(C) PARTICULAR REPAIR OBLIGATIONS: THE LESSEE SHALL, OR THE LESSOR MAY AT
THE LESSEE'S COST:
(I) (WITHOUT PREJUDICE TO ANY OTHER RIGHT OR REMEDY OF THE LESSOR)
IMMEDIATELY MAKE GOOD ANY DAMAGE TO THE PREMISES OR ANY OTHER PART OF THE
BUILDING CAUSED BY THE WILFUL OR NEGLIGENT ACT OF THE LESSEE OR OF THE LESSEE'S
EMPLOYEES;
(II) IMMEDIATELY REPLACE ALL GLASS BROKEN BY THE LESSEE OR BY ANY OF
THE LESSEE'S EMPLOYEES;
(III) REPLACE ALL DAMAGED OR NON-OPERATIVE ELECTRIC LIGHT BULBS,
GLOBES, TUBES AND OTHER MEANS OF ILLUMINATION WITHIN THE PREMISES;
(IV) SUBJECT TO CLAUSE 5.1(A), REPAIR OR WHERE APPROPRIATE REPLACE ANY OF
THE LESSOR'S FIXTURES WHICH ARE BROKEN OR DAMAGED BY THE LESSEE OR BY ANY OF THE
LESSEE'S EMPLOYEES. UNLESS THE LESSOR NOTIFIES THE LESSEE IN WRITING TO THE
CONTRARY THE LESSEE AGREES THAT SUCH REPAIRS OR REPLACEMENTS SHALL ONLY BE
CARRIED OUT BY THE LESSOR BUT AT THE LESSEE'S COST.
(D) CONDITION REPORT: FOR THE PURPOSE OF ESTABLISHING A RECORD OF THE STATE
OF REPAIR AND CONDITION OF THE BUILDING AT THE COMMENCEMENT DATE IN 2002, THE
LESSEE SHALL AS SOON AS PRACTICABLE AFTER SUCH COMMENCEMENT DATE PREPARE A
CONDITION REPORT CONSISTING OF PHOTOGRAPHS OF COMPONENTS OF THE BUILDING AND
FURNISH A COPY TO THE LESSOR.
53.2 LESSOR'S RIGHT OF INSPECTION
THE LESSOR MAY AT ALL REASONABLE TIMES UPON GIVING TO THE LESSEE REASONABLE
NOTICE (EXCEPT IN THE CASE OF EMERGENCY WHEN NO NOTICE SHALL BE REQUIRED) ENTER
THE PREMISES AND VIEW THEIR STATE OF REPAIR AND CONDITION.
53.3 NOT USED.
53.4 NOT USED.
53.5 ENFORCEMENT OF REPAIR OBLIGATIONS
THE LESSOR MAY:
(A) SERVE UPON THE LESSEE A NOTICE OF ANY FAILURE BY THE LESSEE TO CARRY OUT
ANY REPAIR, REPLACEMENT, CLEANING OR REDECORATION OF THE PREMISES WHICH IS THE
LESSEE'S OBLIGATION UNDER THIS LEASE; AND/OR
(B) REQUIRE THE LESSEE TO CARRY OUT SUCH REPAIR, REPLACEMENT, CLEANING OR
REDECORATION WITHIN A REASONABLE TIME AND, IN DEFAULT OF THE LESSEE DOING SO,
THE LESSOR MAY ELECT TO CARRY OUT SUCH REPAIR, REPLACEMENT, CLEANING OR
REDECORATION AND ANY COSTS WHETHER INCIDENTAL OR OTHERWISE SHALL BE PAYABLE ON
DEMAND BY THE LESSEE TO THE LESSOR.
53.6 LESSOR MAY ENTER TO REPAIR
IF:
(A) THE LESSOR WISHES TO CARRY OUT ANY REPAIRS TO THE PREMISES CONSIDERED
NECESSARY OR DESIRABLE BY THE LESSOR OR IN RELATION TO ANYTHING WHICH THE LESSOR
IS OBLIGED TO DO UNDER THIS LEASE;
(B) ANY AUTHORITY REQUIRES ANY REPAIR OR WORK TO BE UNDERTAKEN ON THE
PREMISES OR THE BUILDING WHICH THE LESSOR IN ITS DISCRETION ELECTS TO DO AND FOR
WHICH THE LESSEE IS NOT LIABLE UNDER THIS LEASE; AND/OR
(C) THE LESSOR ELECTS TO CARRY OUT ANY REPAIR WORK WHICH THE LESSEE IS
REQUIRED OR LIABLE TO DO UNDER THIS LEASE BY ANY LAW OR BY ANY REQUIREMENT BUT
FAILS TO DO SO,
THEN THE LESSOR, ITS ARCHITECTS, WORKMEN AND OTHERS AUTHORISED BY THE LESSOR MAY
AT ALL REASONABLE TIMES UPON GIVING TO THE LESSEE REASONABLE NOTICE (EXCEPT IN
THE CASE OF EMERGENCY WHEN NO NOTICE SHALL BE REQUIRED) ENTER AND CARRY OUT ANY
SUCH WORKS AND REPAIRS. IN SO DOING THE LESSOR SHALL ENDEAVOUR NOT TO CAUSE
UNDUE INCONVENIENCE TO THE LESSEE AND THE CONDUCT OF THE LESSEE'S BUSINESS.
53.7 ALTERATIONS TO PREMISES
THE LESSEE SHALL NOT MAKE OR PERMIT TO BE MADE ANY PROPOSED WORK (INCLUDING
INTER-TENANCY PARTITIONS AND FLOOR COVERINGS) WITHOUT THE LESSOR'S PRIOR WRITTEN
APPROVAL AND:
(A) IN SEEKING THE LESSOR'S APPROVAL TO A PROPOSED WORK THE LESSEE SHALL
SUBMIT PLANS AND SPECIFICATIONS OF THE PROPOSED WORK TOGETHER WITH A LIST OF THE
PERSONS (IF ANY) FROM WHOM THE LESSEE PROPOSES TO CALL TENDERS FOR THE PROPOSED
WORK;
(B) THE LESSOR WILL (UNLESS IT NOTIFIES OTHERWISE) REQUIRE AS A CONDITION OF
ITS APPROVAL THAT:
(I) ANY PROPOSED WORK SHALL BE SUPERVISED BY A PERSON APPROVED BY THE
LESSOR;
(II) ANY PROPOSED WORK SHALL BE EXECUTED BY CONTRACTORS OR TRADESMEN
APPROVED BY THE LESSOR, BUT NO OBJECTION SHALL BE MADE BY THE LESSOR TO ANY
PERSON WHOSE NAME APPEARS ON THE LIST PROVIDED PURSUANT TO PARAGRAPH (A) AND WHO
HAS BEEN APPROVED BY THE LESSOR;
(III) THE LESSEE PAYS ON DEMAND ALL COSTS INCURRED BY THE LESSOR IN
CONSIDERING THE PROPOSED WORK AND ITS SUPERVISION, INCLUDING THE FEES OF
ARCHITECTS OR OTHER BUILDING CONSULTANTS ENGAGED BY OR ON BEHALF OF THE LESSOR;
(IV) THE LESSEE SHALL OBTAIN AND KEEP CURRENT ALL NECESSARY APPROVALS
OR PERMITS FROM ALL AUTHORITIES NECESSARY TO ENABLE ANY PROPOSED WORK TO BE
LAWFULLY EFFECTED, AND SHALL ON REQUEST BY THE LESSOR PRODUCE FOR INSPECTION BY
THE LESSOR COPIES OF ALL SUCH APPROVALS AND PERMITS;
(V) UPON COMPLETION OF THE PROPOSED WORK THE LESSEE SHALL FORTHWITH
OBTAIN AND PRODUCE TO THE LESSOR ANY UNCONDITIONAL CERTIFICATES OF COMPLIANCE OR
OF SATISFACTORY COMPLETION AVAILABLE FROM ANY SUCH AUTHORITY; AND
(VI) THE LESSEE SHALL FORTHWITH REPAY ON DEMAND BY THE LESSOR ANY COST
INCURRED BY THE LESSOR AS A RESULT OF ANY ALTERATION, ADDITION OR INSTALLATION
TO OR IN THE PREMISES, INCLUDING ANY RESULTING MODIFICATION OR VARIATION TO THE
BUILDING; AND
(C) THE LESSEE SHALL AT ITS OWN EXPENSE COMPLY WITH ALL CONDITIONS ON WHICH
THE LESSOR CONSENTS TO ANY PROPOSED WORK.
53.8 ALTERATIONS OR ADDITIONS TO LESSOR'S FIXTURES AND SERVICES
SUBJECT TO CLAUSE 5.7 THE LESSEE WILL NOT WITHOUT THE PRIOR WRITTEN APPROVAL OF
THE LESSOR INSTALL, INTERFERE WITH OR MAKE ANY CONNECTIONS TO THE LESSOR'S
FIXTURES, SERVICES AND/OR APPURTENANCES, INCLUDING EXISTING WATER, GAS OR
ELECTRICAL FIXTURES, EQUIPMENT OR APPLIANCES OR ANY APPARATUS FOR ILLUMINATING,
AIR-CONDITIONING, HEATING, COOLING OR VENTILATING THE PREMISES.
53.9 NOTICE TO LESSOR OF DAMAGE, ACCIDENT ETC
THE LESSEE SHALL FORTHWITH GIVE NOTICE TO THE LESSOR OF ANY:
(A) DAMAGE, ACCIDENT TO OR DEFECTS IN THE PREMISES OR IN THE BUILDING; OR
(B) CIRCUMSTANCES LIKELY TO CAUSE ANY DAMAGE OR INJURY OCCURRING WITHIN THE
PREMISES OR THE BUILDING OF WHICH THE LESSEE HAS NOTICE (ACTUAL OR
CONSTRUCTIVE).
54. ASSIGNMENT AND SUBLETTING
54.1 NO DISPOSAL OF LESSEE'S INTEREST
THE LESSEE SHALL NOT DURING THE CONTINUANCE OF THIS LEASE ASSIGN, TRANSFER OR
OTHERWISE DEAL WITH OR PART WITH POSSESSION OF THE PREMISES OR THIS LEASE OR ANY
PART OF THEM OR ANY INTEREST IN THEM OR ATTEMPT TO DO ANY OF THE FOREGOING, OR
BY ANY ACT PROCURE THE PREMISES OR THIS LEASE OR ANY PART OF THEM OR ANY
INTEREST IN THEM TO BE ASSIGNED, TRANSFERRED OR OTHERWISE DEALT WITH OR DISPOSED
OF.
54.2 ASSIGNMENTS AND SUBLEASES
THE LESSEE SHALL NOT BE IN BREACH OF CLAUSE 6.1 IF:
(A) THE LESSEE IS NOT IN DEFAULT IN THE TIMELY OBSERVANCE OR PERFORMANCE OF
EACH OF THE COVENANTS AND AGREEMENTS ON THE LESSEE'S PART, AND IN PARTICULAR ALL
RENT AND ALL OTHER MONEYS PAYABLE BY THE LESSEE TO THE LESSOR UP TO THE DATE OF
THE PROPOSED ASSIGNMENT OR SUBLEASE HAVE BEEN PAID;
(B) THE LESSEE PAYS TO THE LESSOR ALL REASONABLE COSTS INCURRED BY THE
LESSOR (WHETHER OR NOT THE PROPOSED ASSIGNMENT OR SUBLEASE PROCEEDS TO
COMPLETION) INCLUDING THE LESSOR'S ADMINISTRATIVE AND OTHER LEGAL COSTS OF AND
INCIDENTAL TO THE PROPOSED ASSIGNMENT OR SUBLEASE;
(C) THE LESSEE PROVES TO THE SATISFACTION OF THE LESSOR THAT THE INCOMING
TENANT IS A RESPECTABLE, RESPONSIBLE AND SOLVENT PERSON;
(D) IN THE CASE OF A PROPOSED SUBLEASE:
(I) THE LESSEE PROVES TO THE SATISFACTION OF THE LESSOR (BY VALUATION
OR VALUATIONS IF SO REQUIRED) THAT THE RENT PAYABLE BY THE INCOMING TENANT UNDER
THE SUBLEASE IS AT A RATE NOT LESS THAN THE THEN CURRENT MARKET RENT FOR THE
PREMISES;
(II) THE LESSOR MAY IN ITS ABSOLUTE DISCRETION APPROVE A SUBLEASE AT A
RATE LESS THAN THE THEN CURRENT MARKET RENT FOR THE PREMISES IF THE LESSEE
PROVIDES A WRITTEN ACKNOWLEDGMENT IN A FORM SATISFACTORY TO THE LESSOR THAT THE
RATE IS BELOW CURRENT MARKET RENT FOR THE PREMISES;
(E) THE LESSEE AND THE INCOMING TENANT ENTER INTO A DEED WITH THE LESSOR IN
THE FORM REQUIRED BY THE LESSOR WHICH INCLUDES PROVISIONS THAT THE INCOMING
TENANT, IF AN ASSIGNEE, WILL COMPLY WITH ALL THE LESSEE'S OBLIGATIONS UNDER THIS
LEASE ON AND FROM THE DATE OF ASSIGNMENT OR, IF A SUBLESSEE, WILL NOT CAUSE OR
CONTRIBUTE TO A BREACH OF THIS LEASE;
(F) THE LESSEE AND THE INCOMING TENANT COMPLY WITH THE LESSOR'S REQUIREMENTS
IN RELATION TO THE DOCUMENTATION, STAMPING AND REGISTRATION OF THE PROPOSED
ASSIGNMENT OR SUBLEASE; AND
(G) IF THE INCOMING TENANT IS A COMPANY, OTHER THAN A COMPANY WHOSE SHARES
CAN BE PUBLICLY TRADED THROUGH A STOCK EXCHANGE, THE LESSEE PROVIDES AND/OR
PROCURES IN FAVOUR OF THE LESSOR A BANK GUARANTEE EQUIVALENT TO SIX MONTHS BASE
RENT.
54.3 CORPORATE OWNERSHIP
IF THE LESSEE IS A COMPANY, OTHER THAN A COMPANY WHOSE SHARES CAN BE PUBLICLY
TRADED THROUGH A STOCK EXCHANGE, ANY CHANGE IN THE SHAREHOLDING OF THE LESSEE
ALTERING THE EFFECTIVE CONTROL OF THE LESSEE SHALL BE DEEMED A PROPOSED
ASSIGNMENT OF THIS LEASE, AND THE LESSEE SHALL NOT REGISTER, RECORD OR ENTER IN
ITS BOOKS ANY TRANSFER OF ANY SHARE OR SHARES IN THE CAPITAL OF THE LESSEE, OR
DEAL WITH ANY BENEFICIAL INTEREST IN ANY SUCH SHARE OR SHARES, OR ISSUE ANY NEW
SHARE OR SHARES, OR TAKE OR ATTEMPT TO TAKE ANY ACTION HAVING THE EFFECT OF
ALTERING THE EFFECTIVE CONTROL OF THE LESSEE OR HAVING THE EFFECT THAT THE
SHAREHOLDERS OF THE LESSEE AT THE DATE OF THIS LEASE TOGETHER BENEFICIALLY HOLD
OR CONTROL LESS THAN FIFTY ONE PER CENT (51%) OF THE VOTING RIGHTS OF CAPITAL IN
THE LESSEE, UNLESS THE LESSEE COMPLIES WITH THE CONDITIONS OF CLAUSE 6.2.
54.4 MORTGAGING ▇▇▇▇▇▇'S INTEREST IN PREMISES
THE LESSEE SHALL NOT MORTGAGE OR CHARGE THIS LEASE OR THE LESSEE'S INTEREST IN
THE PREMISES WITHOUT FIRST OBTAINING THE CONSENT OF THE LESSOR, WHICH CONSENT
WILL NOT BE UNREASONABLY WITHHELD WHERE THE LESSEE IS A COMPANY AND WISHES TO
ENTER INTO A PROPER FIXED AND/OR FLOATING CHARGE OVER ITS ASSETS IN GOOD FAITH
AS A MEANS OF SECURING A BANK OVERDRAFT FACILITY.
54.5 RESMED LTD AND RELATED BODIES CORPORATE
NOTWITHSTANDING CLAUSE 6.2, THE LESSEE SHALL NOT BE IN BREACH OF CLAUSE 6.1 IF:
(A) THE LESSEE IS RESMED LIMITED AND/OR A RELATED BODY CORPORATE (WHICH TERM
IN THIS CLAUSE 6.5 HAS THE MEANING AS DEFINED IN THE CORPORATIONS ACT 2001) OF
RESMED LIMITED; AND
(B) THE INCOMING TENANT IS RESMED LIMITED AND/OR A RELATED BODY CORPORATE OF
RESMED LIMITED; AND
(C) IN THE CASE OF A PROPOSED SUBLEASE, THE INCOMING TENANT AGREES THAT THE
PROPOSED SUBLEASE WILL TERMINATE UPON THE TERMINATION OF THIS LEASE; AND
(D) CLAUSES 6.2(B), (E) AND (F) ARE COMPLIED WITH; AND
(E) RESMED LIMITED PROVIDES IN FAVOUR OF THE LESSOR A GUARANTEE OF THE
OBLIGATIONS AND COVENANTS OF THE INCOMING TENANT CONTAINING PROVISIONS AS SET
OUT OR TO THE EFFECT OF THOSE SET OUT IN CLAUSES 13.2-13.5 OF THIS LEASE.
55. INSURANCE AND INDEMNITIES
55.1 INSURANCES TO BE TAKEN OUT BY LESSEE
THE LESSEE SHALL:
(A) PUBLIC RISK: EFFECT ON OR BEFORE THE COMMENCEMENT DATE AND KEEP CURRENT
DURING THE TERM (INCLUDING ANY EXTENSION OR RENEWAL OR HOLDING OVER) A PUBLIC
RISK INSURANCE POLICY BEARING AN ENDORSEMENT WHEREBY THE INDEMNITY UNDER THE
POLICY IS EXTENDED TO INCLUDE THE RISKS REFERRED TO IN CLAUSE 7.6 AND ALL OTHER
CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS LEASE, SUCH POLICY TO BE FOR AN
AMOUNT OF NOT LESS THAN THE AMOUNT SPECIFIED IN ITEM 15 OR SUCH OTHER REASONABLE
AMOUNT AS THE LESSOR MAY NOTIFY THE LESSEE FROM TIME TO TIME IN RESPECT OF ANY
SINGLE ACCIDENT;
(B) PLATE GLASS: INSURE IN SUCH AMOUNT (NOT BEING LESS THAN THE FULL
INSURABLE VALUE OF THEM) AND AGAINST SUCH RISKS AS THE LESSOR MAY REQUIRE ALL
PLATE GLASS WINDOWS (OTHER THAN EXTERNAL WINDOWS), DOORS AND DISPLAY SHOW-CASES
FORMING PART OF OR WITHIN THE PREMISES;
(C) APPROVED INSURERS: ENSURE THAT ALL POLICIES OF INSURANCE EFFECTED OR
REQUIRED TO BE EFFECTED BY THE LESSEE PURSUANT TO THIS CLAUSE 7, WHETHER IN
RESPECT OF THE PROPERTY OR RISK EITHER OF THE LESSOR OR THE LESSEE:
(I) ARE TAKEN OUT WITH AN INDEPENDENT AND REPUTABLE INSURER;
(II) ARE FOR SUCH AMOUNTS AND COVER SUCH RISKS AS ARE REASONABLY
ACCEPTABLE TO OR REQUIRED BY THE LESSOR AND/OR THE LESSOR'S INSURER(S); AND
(III) ARE TAKEN OUT IN THE NAMES OF THE LESSOR AND THE LESSEE FOR THEIR
RESPECTIVE RIGHTS AND INTERESTS:
(D) EVIDENCE OF INSURANCE: IN RESPECT OF ANY POLICY OF INSURANCE TO BE
EFFECTED BY THE LESSEE PURSUANT TO THIS CLAUSE 7, WHENEVER REASONABLY REQUIRED
BY THE LESSOR PRODUCE TO THE LESSOR THE POLICY OF INSURANCE, THE RECEIPT FOR THE
LAST PREMIUM AND A CERTIFICATE OF CURRENCY; AND
(E) LESSEE TO PAY PREMIUMS: PAY ALL PREMIUMS AND OTHER MONEYS PAYABLE IN
RESPECT OF ANY SUCH POLICY WHENEVER THEY SHALL BECOME DUE AND PAYABLE.
55.2 EFFECT ON LESSOR'S INSURANCES
(A) NOT TO PREJUDICE INSURANCES: THE LESSEE SHALL NOT WITHOUT THE PRIOR
CONSENT IN WRITING OF THE LESSOR BRING, KEEP, DO OR PERMIT TO BE BROUGHT, KEPT
OR DONE ANYTHING TO OR UPON THE PREMISES OR THE BUILDING WHICH SHALL OR MAY:
(I) INCREASE THE RATE OF ANY INSURANCE ON THE PREMISES OR THE BUILDING
OR ON ANY PROPERTY IN THEM; OR
(II) VITIATE OR RENDER VOID OR VOIDABLE ANY INSURANCE IN RESPECT OF THE
PREMISES OR THE BUILDING OR ANY PROPERTY IN THEM; OR
(III) CONFLICT WITH ANY LAWS OR ANY REQUIREMENTS OR WITH ANY
REQUIREMENTS OF THE LESSOR'S INSURER(S) RELATING TO FIRES OR FIRE SAFETY OR FIRE
PREVENTION OR WITH ANY INSURANCE POLICY IN RESPECT OF THE PREMISES OR THE
BUILDING OR ANY PROPERTY IN THEM.
(B) EXTRA COSTS OF INSURANCE: THE LESSEE SHALL PAY TO THE LESSOR ON DEMAND
ALL EXTRA COSTS OF INSURANCE (INCLUDING ANY RATES) ON THE PREMISES OR THE
BUILDING AND ON ANY PROPERTY IN THEM (IF ANY ARE REQUIRED) ON ACCOUNT OF THE
EXTRA RISK CAUSED BY THE LESSEE'S USE OR OCCUPATION OF THE PREMISES.
55.3 INFLAMMABLE SUBSTANCES
THE LESSEE SHALL NOT:
(A) OTHER THAN AS IS NECESSARY AND PROPER FOR THE LESSEE'S BUSINESS, AND
THEN ONLY IN SUCH QUANTITIES AS ARE REASONABLY APPROPRIATE, STORE CHEMICALS,
INFLAMMABLE LIQUIDS, ACETYLENE GAS OR ALCOHOL, VOLATILE OR EXPLOSIVE OILS,
COMPOUNDS OR SUBSTANCES UPON THE PREMISES AND/OR THE BUILDING; OR
(B) USE ANY OF SUCH SUBSTANCES OR FLUIDS IN THE PREMISES FOR ANY PURPOSE
OTHER THAN THE LESSEE'S BUSINESS.
55.4 COMPLIANCE WITH FIRE REGULATIONS
THE LESSEE SHALL:
(A) COMPLY WITH INSURANCE, SPRINKLER OR FIRE ALARM REGULATIONS IN RESPECT OF
ANY PARTITIONS WHICH MAY BE ERECTED BY OR ON BEHALF OF THE LESSEE IN THE
PREMISES; AND
(B) PAY TO THE LESSOR UPON DEMAND THE COST OF ANY ALTERATION TO ANY
SERVICES, SPRINKLER OR FIRE PREVENTION EQUIPMENT AND INSTALLATIONS (INCLUDING
ALARMS) WHICH MAY BECOME NECESSARY BY REASON OF THE NON-COMPLIANCE BY THE LESSEE
OR BY THE LESSEE'S EMPLOYEES WITH ANY SUCH REGULATIONS IN RESPECT OF SUCH
PARTITIONS.
55.5 EXCLUSION OF LESSOR'S LIABILITY
THE LESSEE:
(A) LESSEE'S RISK: ACKNOWLEDGES THAT ALL PROPERTY WHICH MAY BE IN THE
PREMISES DURING THE CONTINUANCE OF THIS LEASE SHALL BE AT THE SOLE RISK OF THE
LESSEE, AND THE LESSOR SHALL NOT BE LIABLE FOR ANY CLAIM THAT THE LESSEE OR THE
LESSEE'S EMPLOYEES OR ANY PERSON CLAIMING BY, THROUGH OR UNDER THE LESSEE MAY
INCUR OR MAKE OR ANY WHICH ARISES FROM:
(I) ANY FAULT IN THE CONSTRUCTION OR STATE OF REPAIR OF THE BUILDING OR
THE PREMISES OR ANY PART OF THEM OR THE LESSOR'S FIXTURES; OR
(II) ANY DEFECT IN ANY SERVICE OR ANY APPURTENANCE; OR
(III) THE FLOW, OVERFLOW, LEAKAGE, CONDENSATION OR BREAKDOWN OF ANY
WATER, AIR-CONDITIONING, GAS, OIL OR OTHER SOURCES OF ENERGY OR FUEL, WHETHER
FROM THE ROOF, WALLS, GUTTER, DOWNPIPES OR OTHER PARTS OF THE BUILDING;
OR FROM ANY OTHER CAUSE EXCEPT AS A RESULT OF BREACH OF THIS LEASE BY,
OR THE NEGLIGENCE OF ANY SERVANT OR AGENT OF, THE LESSOR; AND
(B) RELEASE: AGREES THAT THE LESSOR SHALL NOT BE RESPONSIBLE FOR AND
RELEASES THE LESSOR FROM LIABILITY IN RESPECT OF ANY:
(I) CLAIM RELATING TO ANY PROPERTY OF THE LESSEE OR ANY OTHER PERSON IN
THE BUILDING OR ANY PART OF IT HOWEVER OCCURRING; OR
(II) DAMAGE OR INJURY TO ANY PERSON OR PROPERTY IN THE BUILDING OR ON
ANY LAND NEAR THE BUILDING,
EXCEPT TO THE EXTENT THE CLAIM, DAMAGE OR INJURY RESULTS FROM BREACH OF THIS
LEASE BY, OR THE NEGLIGENCE OF ANY SERVANT OR AGENT OF, THE LESSOR.
55.6 INDEMNITIES
NOTWITHSTANDING THAT:
(A) ANY CLAIMS SHALL HAVE RESULTED FROM ANYTHING WHICH THE LESSEE MAY BE
AUTHORISED OR OBLIGED TO DO UNDER THIS LEASE; AND/OR
(B) AT ANY TIME ANY WAIVER OR OTHER INDULGENCE HAS BEEN GIVEN TO THE LESSEE
IN RESPECT OF ANY OBLIGATION OF THE LESSEE UNDER THIS CLAUSE 7.6,
THE LESSEE SHALL INDEMNIFY AND KEEP INDEMNIFIED THE LESSOR FROM AND AGAINST ALL
CLAIMS FOR WHICH THE LESSOR SHALL OR MAY BE OR BECOME LIABLE, WHETHER DURING OR
AFTER THE TERM, IN RESPECT OF OR ARISING FROM:
(I) INJURY TO PROPERTY OR PERSON: ANY LOSS, DAMAGE OR INJURY TO PROPERTY OR
PERSON CAUSED OR CONTRIBUTED TO BY ANY WILFUL OR NEGLIGENT ACT OR OMISSION, ANY
DEFAULT UNDER THIS LEASE, AND/OR THE USE OF THE PREMISES, BY OR ON THE PART OF
THE LESSEE OR THE LESSEE'S EMPLOYEES EXCEPT TO THE EXTENT CAUSED BY THE LESSOR,
ITS SERVANTS OR AGENTS;
(II) ABUSE OF SERVICES: THE NEGLIGENT OR CARELESS USE OR NEGLECT OF THE
SERVICES AND FACILITIES OF THE PREMISES OR THE BUILDING OR THE APPURTENANCES BY
THE LESSEE OR THE LESSEE'S EMPLOYEES OR ANY OTHER PERSON CLAIMING THROUGH OR
UNDER THE LESSEE.
(III) WATER LEAKAGE: OVERFLOW OR LEAKAGE OF WATER (INCLUDING RAIN WATER) OR
FROM ANY SERVICES OR FROM ANY OF THE APPURTENANCES OR THE LESSOR'S FIXTURES,
CAUSED OR CONTRIBUTED TO BY ANY ACT OR OMISSION ON THE PART OF THE LESSEE OR THE
LESSEE'S EMPLOYEES OR OTHER PERSON CLAIMING THROUGH OR UNDER THE LESSEE;
(IV) NOTIFICATION OF DEFECTS: FAILURE OF THE LESSEE TO GIVE NOTICE TO THE
LESSOR OF ANY DEFECT IN ANY OF THE MECHANICAL OR ANY OTHER SERVICES IN, TO OR
NEAR THE PREMISES;
(V) PLATE GLASS: ALL CLAIMS RELATING TO PLATE AND OTHER GLASS CAUSED OR
CONTRIBUTED TO BY ANY ACT OR OMISSION ON THE PART OF THE LESSEE OR THE LESSEE'S
EMPLOYEES.
55.7 BUILDING INSURANCE
(A) IN THIS CLAUSE "INDUSTRIAL SPECIAL RISKS POLICY" MEANS AN INSURANCE
POLICY:
(I) FOR THE FULL INSURABLE AND REPLACEMENT VALUE (AS DETERMINED BY AN
INDEPENDENT VALUER AT THE LESSOR'S EXPENSE) OF THE BUILDING AND THE LESSOR'S
FIXTURES, INCLUDING COVERAGE FOR COSTS OF DEMOLITION, SITE CLEARANCE, REMOVAL OF
DEBRIS, PROFESSIONAL AND OTHER COSTS OF PLANNING AND OTHER APPROVALS AND FOR
REINSTATING OR REPLACING THE BUILDING AND THE LESSOR'S FIXTURES, AGAINST LOSS OR
DAMAGE BY FIRE, ▇▇▇▇▇, ▇▇▇▇▇▇▇, EARTHQUAKE, LIGHTNING, EXPLOSION AND OTHER RISKS
USUALLY COVERED UNDER A COMPREHENSIVE INSURANCE POLICY FOR FIRE AND RELATED
RISKS; AND
(II) (SUBJECT TO THE EXCLUSION OF ANY RENTS ARISING FROM NORMAL VACANCIES
DURING LETTING UP PERIODS) FOR LOSS OF ANY RENTS OR OTHER MONEYS (WHETHER
SEPARATE OR OTHERWISE INCLUDED IN ANY RENTS OR OTHER MONEYS PAYABLE IN RESPECT
OF ANY TENANCY OR OCCUPATION OF THE BUILDING) ARISING FROM DAMAGE OR DESTRUCTION
OF THE BUILDING OR ANY PART OF IT OR ARISING FROM DIMINUTION OR LOSS OF ANY
MEANS OF ACCESS OR OTHER SIMILAR CAUSES.
(B) FROM THE COMMENCEMENT DATE IN 2002 UNTIL 30 SEPTEMBER 2002 THE LESSEE
SHALL MAINTAIN THE COMPREHENSIVE INSURANCE POLICY FOR INDUSTRIAL SPECIAL RISKS
WITH XL WINTERTHUR INTERNATIONAL (POLICY NUMBER IS10017/00) ("THE CURRENT
POLICY") WHICH POLICY COVERS THE BUILDING AND WHICH THE PARTIES ACKNOWLEDGE IS
AN INDUSTRIAL SPECIAL RISKS POLICY FOR THE PURPOSES OF THIS CLAUSE.
(C) EACH PARTY WILL SUBMIT TO THE OTHER BY 31 AUGUST 2002 AND EACH
ANNIVERSARY OF THAT DATE FOR THE REMAINDER OF TERM AT LEAST TWO (2) QUOTES FOR
AN INDUSTRIAL SPECIAL RISKS POLICY FOR THE NEXT TWELVE (12) MONTHS STARTING FROM
1 OCTOBER AND ENDING ON THE FOLLOWING 30 SEPTEMBER FROM AN INSURER WHICH, AT THE
DATE OF THE QUOTE, IS INDEPENDENT, REPUTABLE AND RATED WITH A STANDARD AND
POOR'S RATING OF AT LEAST AA. WHERE THE PROPOSED POLICY COVERS PROPERTIES IN
ADDITION TO THE BUILDING, A STATEMENT BY A PARTY'S INSURANCE BROKER AS TO THE
COST OF THE POLICY IN RESPECT OF THE BUILDING SHALL BE THE QUOTE FOR THAT POLICY
FOR THE PURPOSE OF THIS CLAUSE.
(D) THE PARTIES WILL ACCEPT THE LOWEST QUOTE AND WHICHEVER PARTY OBTAINED
SUCH QUOTE WILL EFFECT AND MAINTAIN THE INDUSTRIAL SPECIAL RISKS POLICY WITH THE
RELEVANT INSURER FOR THE RELEVANT TWELVE (12) MONTH PERIOD STARTING FROM 1
OCTOBER AND ENDING ON THE FOLLOWING 30 SEPTEMBER.
(E) IN RESPECT OF ANY INDUSTRIAL SPECIAL RISKS POLICY TAKEN OUT BY THE
LESSEE PURSUANT TO THIS CLAUSE (INCLUDING THE CURRENT POLICY):
(I) SUCH POLICY WILL NOTE THE INTERESTS OF THE LESSOR, THE MACQUARIE ▇▇▇▇▇▇▇
CAPITAL TRUST (AS REFERRED TO IN CLAUSE 18.10) AND ANY MORTGAGEE OF THE PREMISES
AS NOTIFIED BY THE LESSOR FROM TIME TO TIME;
(II) THE LESSEE, WHENEVER REASONABLY REQUIRED BY THE LESSOR, WILL PRODUCE TO
THE LESSOR THE INDUSTRIAL SPECIAL RISKS POLICY, THE RECEIPT OF THE LAST PREMIUM
AND A CERTIFICATE OF CURRENCY;
(III) THE LESSEE WILL PAY ALL PREMIUMS AND OTHER MONEYS PAYABLE IN RESPECT
OF ANY SUCH POLICY WHENEVER THEY SHALL BECOME DUE AND PAYABLE.
(F) IN THE EVENT OF LOSS OR DAMAGE TO THE BUILDING OR THE LESSOR'S FIXTURES
WHICH IS COVERED BY AN INDUSTRIAL SPECIAL RISKS POLICY, THE LESSEE ACKNOWLEDGES
THAT THE LESSOR IS ENTITLED TO THE PROCEEDS FROM THE INSURANCE AND, IF ANY SUCH
PROCEEDS ARE RECEIVED BY THE LESSEE, THE LESSEE SHALL FORTHWITH REMIT THE AMOUNT
RECEIVED TO THE LESSOR.
56. DAMAGE AND RESUMPTION
56.1 DAMAGE TO OR DESTRUCTION OF BUILDING/PREMISES
IF THE BUILDING OR THE PREMISES OR ANY PART OF THEM SHALL AT ANY TIME BE DAMAGED
OR DESTROYED OR AFFECTED BY ANY DISABLING CAUSE SO AS TO RENDER THE PREMISES OR
ANY PART WHOLLY OR SUBSTANTIALLY UNFIT FOR THE OCCUPATION AND USE OF THE LESSEE
OR (HAVING REGARD TO THE NATURE AND LOCATION OF THE PREMISES AND THE NORMAL
MEANS OF ACCESS) WHOLLY OR SUBSTANTIALLY INACCESSIBLE THEN:
(A) RENT ABATEMENT: SUBJECT TO SUBCLAUSE (D), THE RENT (AND OPERATING
EXPENSES) OR A PROPORTIONATE PART THEREOF ACCORDING TO THE NATURE AND EXTENT OF
THE DAMAGE, DESTRUCTION OR AFFECTATION SHALL ▇▇▇▇▇, AND ALL REMEDIES FOR
RECOVERY OF SAME FALLING DUE AFTER SUCH DAMAGE, DESTRUCTION OR AFFECTATION SHALL
BE SUSPENDED UNTIL THE PREMISES HAVE BEEN RESTORED OR MADE FIT FOR THE
OCCUPATION AND USE OF OR ACCESSIBLE TO THE LESSEE (AS APPROPRIATE);
(B) UNLESS THE LESSOR:
(I) WITHIN THREE (3) MONTHS AFTER THE OCCURRENCE OF ANY SUCH
DESTRUCTION, DAMAGE OR AFFECTATION SHALL HAVE GIVEN A REINSTATEMENT NOTICE; AND
(II) SHALL THEREAFTER WITH ALL REASONABLE EXPEDITION (AND SUBJECT TO
ALL NECESSARY APPROVALS FIRST BEING OBTAINED) PROCEED TO REINSTATE THE BUILDING
AND MAKE THE PREMISES FIT FOR OCCUPATION AND USE OR ACCESSIBLE TO THE LESSEE (AS
APPROPRIATE),
THIS LEASE MAY BE DETERMINED BY NOTICE BY THE LESSOR OR, SUBJECT TO
SUBCLAUSE (D), BY THE LESSEE, SERVED ON THE OTHER;
(C) IF THE LESSOR GIVES A REINSTATEMENT NOTICE TO THE LESSEE AND THEREAFTER
DOES NOT WITHIN A REASONABLE TIME (HAVING REGARD TO THE NATURE AND EXTENT OF THE
DAMAGE, DESTRUCTION OR AFFECTATION AND THE TIME EXPECTED TO OBTAIN ALL NECESSARY
APPROVALS AND TO COMMENCE AND TO CARRY OUT THE NECESSARY WORKS) REINSTATE THE
PREMISES OR MAKE THEM FIT FOR THE OCCUPATION AND USE OF, OR RENDER THEM
ACCESSIBLE TO, THE LESSEE (AS APPROPRIATE), THE LESSEE MAY SERVE ON THE LESSOR
NOTICE OF INTENTION TO TERMINATE THIS LEASE (THE "FIRST NOTICE"), AND UNLESS THE
LESSOR SHALL UPON RECEIPT OF THE FIRST NOTICE PROCEED WITH REASONABLE EXPEDITION
AND DILIGENCE TO REINSTATE THE PREMISES OR MAKE THEM FIT FOR THE OCCUPATION AND
USE OF, OR RENDER THEM ACCESSIBLE TO, THE LESSEE (AS APPROPRIATE), THE LESSEE
MAY TERMINATE THIS LEASE BY GIVING NOT LESS THAN ONE (1) MONTH'S NOTICE TO THE
LESSOR (THE "SECOND NOTICE") AND AT THE EXPIRATION OF THE SECOND NOTICE THIS
LEASE SHALL BE AT AN END;
(D) THE PROVISIONS OF PARAGRAPH (A) SHALL NOT APPLY TO THE EXTENT SUCH
DAMAGE, DESTRUCTION OR AFFECTATION HAS BEEN CAUSED OR CONTRIBUTED TO OR ARISES
FROM, AND THE PROVISIONS OF PARAGRAPHS (B) AND (C) SHALL NOT APPLY WHERE SUCH
DAMAGE OR DESTRUCTION HAS BEEN CAUSED OR CONTRIBUTED TO OR ARISES FROM, ANY ACT
OR OMISSION OF THE LESSEE OR THE LESSEE'S EMPLOYEES AND ANY POLICY OR POLICIES
OF INSURANCE EFFECTED ON THE BUILDING SHALL HAVE BEEN AVOIDED, OR PAYMENT OF THE
POLICY MONEYS REFUSED OR REDUCED, IN CONSEQUENCE OF ANY ACT OR DEFAULT OF THE
LESSEE OR OF THE LESSEE'S EMPLOYEES.
56.2 LESSOR'S RIGHT TO TERMINATE
IF IN THE LESSOR'S ABSOLUTE UNFETTERED OPINION (WHICH MAY BE FORMED AT ANY TIME
INCLUDING BEFORE OR AFTER ANY NOTICE REFERRED TO IN CLAUSE 8.1) THE DAMAGE,
DESTRUCTION OR AFFECTATION TO THE BUILDING OR THE PREMISES IS SUCH THAT IT IS
IMPRACTICAL OR UNDESIRABLE TO REINSTATE THE PREMISES OR MAKE THEM FIT FOR THE
OCCUPATION AND USE OF, OR RENDER THEM ACCESSIBLE TO, THE LESSEE (AS
APPROPRIATE), THE LESSOR MAY TERMINATE THIS LEASE BY GIVING NOT LESS THAN ONE
(1) MONTH'S NOTICE TO THE LESSEE AND AT THE EXPIRATION OF THAT NOTICE THIS LEASE
SHALL BE AT AN END.
56.3 RESUMPTION
IF:
(A) THE WHOLE OF THE PREMISES ARE RESUMED; OR
(B) PART OF THE PREMISES IS RESUMED SO THAT THE RESIDUE OF THEM IS WHOLLY OR
SUBSTANTIALLY UNFIT FOR THE OCCUPATION AND USE OF THE LESSEE OR (HAVING REGARD
TO THE NATURE AND LOCATION OF THE PREMISES AND THE NORMAL MEANS OF ACCESS) IS
WHOLLY OR SUBSTANTIALLY INACCESSIBLE,
EITHER THE LESSOR OR THE LESSEE MAY DETERMINE THIS LEASE BY GIVING NOT LESS THAN
ONE MONTH'S NOTICE TO THE OTHER. AT THE END OF THAT NOTICE THIS LEASE WILL BE
AT AN END.
56.4 LIABILITY
NO LIABILITY SHALL ATTACH TO THE LESSOR OR TO THE LESSEE BY REASON OF
TERMINATION OF THIS LEASE PURSUANT TO CLAUSE 8.1 OR CLAUSE 8.2 OR CLAUSE 8.3.
ANY SUCH TERMINATION SHALL BE WITHOUT PREJUDICE TO THE RIGHTS OF EITHER PARTY IN
RESPECT OF ANY PRECEDING BREACH OR NON-OBSERVANCE OF ANY COVENANT OR PROVISION
OF THIS LEASE.
56.5 DISPUTE
ANY DISPUTE ARISING UNDER CLAUSE 8.1 SHALL BE DETERMINED BY A LOSS ASSESSOR
BEING A MEMBER OF THE INSURANCE COUNCIL APPOINTED BY ITS PRESIDENT FOR THE TIME
BEING. THE PERSON SO APPOINTED SHALL BE AN ASSESSOR HAVING SUBSTANTIAL
EXPERIENCE IN ASSESSING BUILDINGS OF A SIMILAR TYPE WITHIN THE AREA IN WHICH THE
BUILDING IS LOCATED OR OTHER COMPARABLE AREA AND SHALL IN MAKING HIS
DETERMINATION ACT AS AN EXPERT AND NOT AS AN ARBITRATOR AND HIS DETERMINATION
SHALL BE FINAL AND BINDING ON THE PARTIES. THE COST OF ANY SUCH DETERMINATION
SHALL BE BORNE BY EITHER OR BOTH OF THE LESSOR OR THE LESSEE (AND IF BY BOTH OF
THE PARTIES IN THE PROPORTION BETWEEN THEM) AS THE PERSON MAKING THE
DETERMINATION SHALL DECIDE.
56.6 LESSOR NOT OBLIGED TO REINSTATE
NOTHING IN THIS LEASE SHALL OBLIGE THE LESSOR TO REINSTATE THE BUILDING OR THE
PREMISES OR THE MEANS OF ACCESS TO THEM.
57. LESSOR'S COVENANTS
▇▇.▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
SUBJECT TO THE RIGHTS, POWERS, REMEDIES AND RESERVATIONS OF OR TO THE LESSOR,
THE LESSOR COVENANTS THAT, IF THE LESSEE PAYS THE RENT AND OBSERVES AND PERFORMS
IN A TIMELY FASHION THE COVENANTS AND CONDITIONS ON ITS PART CONTAINED IN THIS
LEASE, THE LESSEE MAY OCCUPY AND ENJOY THE PREMISES DURING THE TERM WITHOUT ANY
INTERRUPTION BY THE LESSOR OR BY ANY PERSON RIGHTFULLY CLAIMING THROUGH, UNDER
OR IN TRUST FOR THE LESSOR.
57.2 BUILDING CONDITION
SUBJECT TO THE LESSEE'S OBLIGATIONS UNDER THIS LEASE, THE LESSOR SHALL DURING
THE CONTINUANCE OF THIS LEASE KEEP THE STRUCTURE OF THE BUILDING IN A SOUND AND
TENANTABLE CONDITION AND KEEP THE BUILDING WATERTIGHT AND WEATHERPROOF AND SHALL
CARRY OUT ANY REASONABLY NECESSARY REPAIRS TO THE BUILDING AND SHALL MAINTAIN
THE ACCESS WAYS, PARKING AREAS, WATER, DRAINAGE, ELECTRICAL AND OTHER FACILITIES
AND SERVICES IN OR ON THE BUILDING AND THE LAND OPERATING AS INTENDED AND IN A
REASONABLE STATE OF REPAIR HAVING REGARD TO THE CONDITION AND STATE OF REPAIR OF
THE BUILDING, THE FACILITIES AND SERVICES AS AT THE COMMENCEMENT DATE.
57.3 FIRE SAFETY AND OTHER REQUIREMENTS
THE LESSOR SHALL AT ITS OWN EXPENSE ENSURE THAT THE BUILDING COMPLIES WITH ALL
FIRE AND SAFETY REQUIREMENTS AND SHALL PROMPTLY COMPLY WITH AND OBSERVE ALL
NOTICES AND REQUIREMENTS OF ANY AUTHORITY WITH RESPECT TO THE BUILDING WHETHER
INVOLVING STRUCTURAL ALTERATIONS OR NOT EXCEPT THOSE WHICH ARE THE
RESPONSIBILITY OF THE LESSEE UNDER THIS LEASE.
58. DEFAULT, TERMINATION
58.1 DEFAULT
IF:
(A) THE RENT OR ANY PART OF IT IS IN ARREARS AND UNPAID FOR FOURTEEN (14)
DAYS NEXT AFTER ANY OF THE DUE DATES FOR PAYMENT (WHETHER DEMANDED OR NOT); OR
(B) ANY MONEYS (OTHER THAN RENT) PAYABLE BY THE LESSEE TO THE LESSOR ON
DEMAND ARE NOT PAID WITHIN FOURTEEN (14) DAYS OF THE LESSOR DEMANDING PAYMENT,
OR IF ANY OTHER MONEYS PAYABLE BY THE LESSEE TO THE LESSOR ARE NOT PAID BY THE
DUE DATE FOR PAYMENT; OR
(C) THE LESSEE FAILS OR REFUSES TO CARRY OUT ANY REPAIRS PROPERLY REQUIRED
BY ANY NOTICE WITHIN THE TIME SPECIFIED IN THE NOTICE; OR
(D) THE LESSEE FAILS TO PERFORM OR OBSERVE IN A TIMELY FASHION ANY OF THE
COVENANTS OR CONDITIONS CONTAINED IN THIS LEASE WHICH OUGHT TO BE PERFORMED OR
OBSERVED BY THE LESSEE; OR
(E) ANY ASSIGNMENT IS MADE OF THE PROPERTY OF THE LESSEE FOR THE BENEFIT OF
CREDITORS; OR
(F) THE LESSEE, BEING A COMPANY, ENTERS INTO LIQUIDATION (WHETHER VOLUNTARY,
COMPULSORY OR PROVISIONAL), OR IS WOUND-UP OR DISSOLVED, OR ENTERS INTO A SCHEME
OF ARRANGEMENT FOR CREDITORS, OR IS PLACED UNDER OFFICIAL MANAGEMENT, OR A
RECEIVER AND/OR MANAGER OF ANY OF ITS ASSETS IS APPOINTED,
THEN AND IN ANY OF SUCH CASES THE LESSEE SHALL BE DEEMED TO HAVE MADE
DEFAULT. THE LESSOR MAY ELECT TO TREAT ANY SUCH DEFAULT AS A REPUDIATION OF
THIS LEASE BY THE LESSEE.
58.2 FORFEITURE OF LEASE
IF THE LEASE HAS MADE DEFAULT AS SPECIFIED IN CLAUSE 10.1 THE LESSOR MAY,
WITHOUT PREJUDICE TO ANY OTHER CLAIM WHICH THE LESSOR HAS OR MAY HAVE OR COULD
OTHERWISE HAVE AGAINST THE LESSEE OR ANY OTHER PERSON IN RESPECT OF SUCH
DEFAULT, AT ANY TIME:
(A) SUBJECT TO ANY PRIOR DEMAND OR NOTICE AS IS REQUIRED BY LAW, RE-ENTER
INTO AND TAKE POSSESSION OF THE PREMISES OR ANY PART OF THEM (BY FORCE IF
NECESSARY) AND EJECT THE LESSEE AND ALL OTHER PERSONS FROM THEM, AND THEREUPON
THIS LEASE SHALL BE ABSOLUTELY DETERMINED; OR
(B) BY NOTICE TO THE LESSEE DETERMINE THIS LEASE, AND FROM THE DATE OF
GIVING SUCH NOTICE THIS LEASE SHALL BE ABSOLUTELY DETERMINED.
58.3 LESSOR MAY RECTIFY
THE LESSOR MAY, BUT SHALL NOT BE OBLIGED TO, REMEDY AT ANY TIME WITHOUT NOTICE
ANY DEFAULT BY THE LESSEE UNDER THIS LEASE, AND WHENEVER THE LESSOR SO ELECTS
ALL REASONABLE COSTS INCURRED BY THE LESSOR (INCLUDING LEGAL COSTS AND EXPENSES)
IN REMEDYING A DEFAULT SHALL CONSTITUTE A LIQUIDATED DEBT AND SHALL BE PAID BY
THE LESSEE TO THE LESSOR ON DEMAND.
58.4 WAIVER
(A) NO WAIVER: 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 OF IT, NOR SHALL ANY CUSTOM OR PRACTICE WHICH MAY GROW UP BETWEEN ANY OF
THE PARTIES IN THE COURSE OF ADMINISTERING THIS LEASE BE CONSTRUED TO WAIVE OR
TO LESSEN THE RIGHT OF THE LESSOR TO INSIST UPON THE TIMELY PERFORMANCE OR
OBSERVANCE BY THE LESSEE OF ANY COVENANT OR CONDITION OF THIS LEASE OR TO
EXERCISE ANY RIGHTS GIVEN TO THE LESSOR IN RESPECT OF ANY SUCH DEFAULT.
(B) WAIVER OF INDIVIDUAL DEFAULT: A WAIVER BY THE LESSOR OF A PARTICULAR
BEACH OR DEFAULT SHALL NOT BE DEEMED TO BE A WAIVER OF THE SAME OR ANY OTHER
SUBSEQUENT BREACH OR DEFAULT.
(C) ACCEPTANCE OR DEMAND FOR RENT NOT WAIVER: THE DEMAND BY THE LESSOR FOR,
OR SUBSEQUENT ACCEPTANCE BY OR ON BEHALF OF THE LESSOR OF, RENT OR ANY OTHER
MONEYS PAYABLE UNDER THIS LEASE SHALL NOT CONSTITUTE A WAIVER OF ANY EARLIER
BREACH BY THE LESSEE OF ANY COVENANT OR CONDITION OF THIS LEASE, OTHER THAN THE
FAILURE OF THE LESSEE TO MAKE THE PARTICULAR PAYMENT OR PAYMENTS OF RENT OR
OTHER MONEYS SO ACCEPTED, REGARDLESS OF THE LESSOR'S KNOWLEDGE OF ANY EARLIER
BREACH AT THE TIME OF ACCEPTANCE OF SUCH RENT OR OTHER MONEYS.
58.5 TENDER AFTER DETERMINATION
ANY MONEYS TENDERED BY THE LESSEE AFTER THE DETERMINATION OF THIS LEASE IN THE
MANNER DESCRIBED IN CLAUSE 10.2(A) OR IN CLAUSE 10.2(B) AND ACCEPTED BY THE
LESSOR MAY BE AND (IN THE ABSENCE OF ANY EXPRESS ELECTION OF THE LESSOR) SHALL
BE APPLIED:
(A) FIRSTLY ON ACCOUNT OF ANY RENT AND OTHER MONEYS ACCRUED AND DUE PURSUANT
TO THIS LEASE BUT UNPAID AT THE TERMINATION DATE OR DATE OF DETERMINATION OF
THIS LEASE (AS APPROPRIATE); AND
(B) SECONDLY ON ACCOUNT OF THE LESSOR'S COSTS OF RE-ENTRY.
58.6 INTEREST ON OVERDUE MONEYS
(A) THE LESSEE SHALL PAY TO THE LESSOR INTEREST AT THE DEFAULT RATE ON ANY
RENT OR OTHER MONEYS DUE BY THE LESSEE TO THE LESSOR ON ANY ACCOUNT WHATEVER
(INCLUDING ALL MONEYS OR COSTS WHICH ARE EXPRESSED TO BE PAYABLE OR REIMBURSABLE
TO THE LESSOR UPON DEMAND) BUT UNPAID FOR FOURTEEN (14) DAYS PURSUANT TO THIS
LEASE.
(B) RENT OR MONEYS FALLING DUE FOR PAYMENT BUT UNPAID AS A RESULT OF
CONSECUTIVE BREACHES OF THE SAME COVENANT SHALL BEAR INTEREST AT THE RATE
APPLICABLE TO THE RENT OR OTHER MONEYS (AS APPROPRIATE) WHICH WERE DUE AND
UNPAID ON THE BREACH OF THE COVENANT WHICH FIRST OCCURRED.
(C) SUCH INTEREST SHALL:
(I) ACCRUE FROM DAY TO DAY;
(II) BE COMPUTED FROM THE DUE DATE FOR PAYMENT OF THE RENT OR OTHER
MONEYS (AS APPROPRIATE) UNTIL PAYMENT OF SUCH RENT OR OTHER MONEYS IN FULL; AND
(III) BE RECOVERABLE IN THE SAME MANNER AS RENT IN ARREARS.
58.7 DAMAGES FOR BREACH
THE LESSEE AGREES THAT:
(A) IF THE LESSEE'S CONDUCT (WHETHER BY ACT OR OMISSION) CONSTITUTES A
REPUDIATION OF THIS LEASE (OR OF THE LESSEE'S OBLIGATIONS UNDER THIS LEASE), OR
CONSTITUTES A BREACH OF ANY LEASE COVENANTS, OR THE LESSOR ELECTS TO TREAT ANY
DEFAULT AS A REPUDIATION PURSUANT TO CLAUSE 10.1, THE LESSEE SHALL COMPENSATE
THE LESSOR FOR ALL COSTS SUFFERED BY REASON OF OR ARISING FROM ANY SUCH
REPUDIATION OR BREACH;
(B) THE LESSOR SHALL BE ENTITLED TO RECOVER COSTS AGAINST THE LESSEE IN
RESPECT OF REPUDIATION OR BREACH OF COVENANT FOR THE DAMAGE SUFFERED BY THE
LESSOR FOR THE TERM;
(C) THE LESSOR'S ENTITLEMENT TO RECOVER DAMAGES FROM THE LESSEE OR ANY OTHER
PERSON SHALL NOT BE LIMITED FOR ANY REASON OR AFFECTED BY ANY OF THE FOLLOWING:
(I) IF THE LESSEE ABANDONS OR VACATES THE PREMISES;
(II) IF THE LESSOR ELECTS TO RE-ENTER THE PREMISES OR TERMINATE THIS LEASE;
(III) IF THE LESSOR ACCEPTS THE LESSEE'S REPUDIATION; OR
(IV) IF THE PARTIES' CONDUCT (OR THAT OF ANY OF THEIR SERVANTS OR
AGENTS) CONSTITUTES OR MAY CONSTITUTE A SURRENDER BY OPERATION OF LAW.
58.8 LESSOR MAY INSTITUTE PROCEEDINGS AT ANY TIME
THE LESSOR SHALL BE ENTITLED AT ANY TIME IN THE LESSOR'S ABSOLUTE DISCRETION TO
INSTITUTE LEGAL PROCEEDINGS CLAIMING DAMAGES AGAINST THE LESSEE IN RESPECT OF
THE TERM, INCLUDING THE PERIOD BEFORE AND AFTER THE REPUDIATION, ABANDONMENT,
TERMINATION, ACCEPTANCE OF REPUDIATION OR SURRENDER BY OPERATION OF LAW REFERRED
TO IN CLAUSE 10.7, WHETHER THE PROCEEDINGS ARE INSTITUTED EITHER BEFORE OR AFTER
SUCH CONDUCT.
58.9 LESSOR TO MITIGATE DAMAGES
IF THE LESSEE VACATES THE PREMISES, WHETHER WITH OR WITHOUT THE LESSOR'S
CONSENT, THE LESSOR SHALL TAKE RESPONSIBLE STEPS TO MITIGATE ITS LOSS AND TO
ENDEAVOUR TO RE-LEASE THE PREMISES AT A REASONABLE RENT AND ON REASONABLE TERMS.
THE LESSOR'S CONDUCT TAKEN IN PURSUANCE OF THIS DUTY TO MITIGATE DAMAGES SHALL
NOT OF ITSELF CONSTITUTE ACCEPTANCE OF THE LESSEE'S BREACH OR REPUDIATION OR A
SURRENDER BY OPERATION OF LAW.
58.10 ESSENTIAL TERMS AND DAMAGES
(A) THE FOLLOWING ARE ESSENTIAL TERMS OF THIS LEASE:
CLAUSE 4.3(A) (COMPLIANCE WITH LAWS AND REQUIREMENTS)
CLAUSE 6.1 (NO DISPOSAL OF LESSEE'S INTEREST)
CLAUSE 6.4 (NO MORTGAGE ETC)
PAYMENT OF THE BASE RENT UNDER CLAUSE B.1 OF, OR OF OTHER MONEYS
UNDER, THE RENT SCHEDULE WITHIN 14 DAYS OF THE DUE DATE.
(B) SHOULD THE LESSOR TERMINATE THIS LEASE FOLLOWING ANY BREACH OF AN
ESSENTIAL TERM THEN, WITHOUT PREJUDICE TO ANY OTHER RIGHT OR REMEDY OF THE
LESSOR, THE LESSOR SHALL BE ENTITLED TO RECOVER FROM THE LESSEE THE DIFFERENCE
BETWEEN THE NET PRESENT VALUE (AS DETERMINED BY A MEMBER OF THE INSTITUTE OF
CHARTERED ACCOUNTANTS IN AUSTRALIA APPOINTED AT THE REQUEST OF THE LESSOR BY THE
PRESIDENT OF THAT INSTITUTE) OF THE AGGREGATE OF RENT AND OTHER MONEYS PAYABLE
BY THE LESSEE UNDER THIS LEASE FOR THE UNEXPIRED RESIDUE OF THE TERM LESS THE
NET PRESENT VALUE OF THE AGGREGATE OF RENT AND OTHER MONEY EXPECTED TO BE
RECEIVED FROM A NEW TENANT OR TENANTS OF THE PREMISES DURING THE UNEXPIRED
RESIDUE OF THE TERM. IN ADDITION THE LESSEE SHALL PAY ALL FEES CHARGED BY THE
EXPERTS APPOINTED UNDER THIS CLAUSE.
59. DETERMINATION OF TERM
59.1 LESSEE TO YIELD UP
THE LESSEE SHALL AT THE EXPIRATION OR SOONER DETERMINATION OF THE TERM YIELD UP
THE PREMISES IN THE ORDER AND CONDITION DESCRIBED IN CLAUSE 5.1
59.2 REMOVAL OF LESSEE'S FITTINGS
THE LESSEE SHALL, AT OR BEFORE THE TERMINATION DATE OR SOONER DETERMINATION OF
THIS LEASE, REMOVE FROM THE PREMISES ALL THE LESSEE'S FITTINGS.
59.3 LESSEE NOT TO CAUSE DAMAGE
THE LESSEE SHALL USE REASONABLE ENDEAVOURS NOT TO CAUSE OR CONTRIBUTE TO ANY
DAMAGE TO THE PREMISES OR TO THE BUILDING IN THE REMOVAL OF THE LESSEE'S
FITTINGS. SHOULD THE LESSEE FAIL TO DO SO THE LESSEE SHALL MAKE GOOD ANY SUCH
DAMAGE AND IN ANY EVENT SHALL LEAVE THE PREMISES IN A CLEAN STATE AND CONDITION
HAVING REGARD TO THEIR CONDITION AT THE COMMENCEMENT DATE. IF THE LESSEE FAILS
TO DO SO THE LESSOR MAY MAKE GOOD AND/OR CLEAN THE PREMISES AT THE COST OF AND
AS AGENT FOR THE LESSEE AND RECOVER FROM THE LESSEE THE COST TO THE LESSOR OF
DOING SO AS A LIQUIDATED DEBT PAYABLE ON DEMAND.
59.4 FAILURE BY LESSEE TO REMOVE ▇▇▇▇▇▇'S FITTINGS
IF THE LESSEE FAILS TO REMOVE THE LESSEE'S FITTINGS AS REQUIRED BY CLAUSE 11.2,
OR IN THE EVENT OF RE-ENTRY PURSUANT TO CLAUSE 10.2, THE LESSOR MAY AT ITS
OPTION:
(A) CAUSE ANY SUCH LESSEE'S FITTINGS TO BE REMOVED AND STORED IN SUCH MANNER
AS THE LESSOR IN ITS ABSOLUTE DISCRETION DEEMS FIT AT THE RISK AND AT THE COST
OF LESSEE; OR
(B) TREAT THE LESSEE'S FITTINGS AS IF THE LESSEE HAD ABANDONED ITS INTEREST
IN THEM AND THEY HAD BECOME THE PROPERTY OF THE LESSOR, AND DEAL WITH THEM IN
SUCH MANNER AS THE LESSOR THINKS FIT WITHOUT BEING LIABLE IN ANY WAY TO ACCOUNT
TO THE LESSEE FOR THEM.
59.5 LESSEE TO INDEMNIFY AND PAY LESSOR'S COSTS
THE LESSEE SHALL:
(A) INDEMNIFY AND KEEP INDEMNIFIED THE LESSOR IN RESPECT OF THE REMOVAL AND
STORAGE OF THE LESSEE'S FITTINGS AND ALSO IN RESPECT OF ALL CLAIMS WHICH THE
LESSOR MAY SUFFER OR INCUR AT THE SUIT OF ANY PERSON (OTHER THAN THE LESSEE)
CLAIMING AN INTEREST IN THE LESSEE'S FITTINGS BY REASON OF THE LESSOR ACTING IN
ANY MANNER PERMITTED IN CLAUSE 11.4; AND
(B) PAY TO THE LESSOR AS A LIQUIDATED DEBT PAYABLE ON DEMAND ANY COSTS
INCURRED BY THE LESSOR IN EXERCISING ITS RIGHTS PURSUANT TO CLAUSE 11.4,
INCLUDING ANY EXCESS OF COSTS OVER MONEYS RECEIVED ON DISPOSAL OF THE LESSEE'S
FITTINGS PURSUANT TO THE LESSOR'S RIGHTS CONTAINED IN CLAUSE 11.4(B).
59.6 EARLIER BREACHES
THE TERMINATION OR DETERMINATION OF THIS LEASE SHALL NOT PREJUDICE OR AFFECT ANY
RIGHTS OR REMEDIES OF THE LESSOR AGAINST THE LESSEE IN RESPECT OF ANY EARLIER
BREACH BY THE LESSEE OF ANY COVENANTS AND CONDITIONS ON THE PART OF THE LESSEE.
60. MISCELLANEOUS
60.1 NOTICES
(A) EXECUTION OF ▇▇▇▇▇▇'S NOTICE: ANY NOTICE SERVED OR GIVEN BY THE LESSOR
PURSUANT TO THIS LEASE SHALL BE VALID AND EFFECTUAL IF SIGNED BY ANY OFFICER OR
SOLICITORS FOR THE TIME BEING OF THE LESSOR OR ANY OTHER PERSON NOMINATED FROM
TIME TO TIME BY THE LESSOR.
(B) NOTICE OF ▇▇▇▇▇▇'S ADDRESS: THE LESSEE SHALL FORTHWITH PROVIDE THE
LESSOR WITH A NOTICE CONTAINING FULL PARTICULARS OF THE ADDRESS AND FACSIMILE
INFORMATION OF THE LESSEE AND OF ANY GUARANTORS, AND SHALL UPDATE SUCH NOTICE IN
THE EVENT OF ANY CHANGE.
(C) SERVICE OF NOTICE ON LESSEE: ANY NOTICE REQUIRED TO BE SERVED OR WHICH
THE LESSOR MAY ELECT TO SERVE ON THE LESSEE SHALL BE SUFFICIENTLY SERVED IF:
(I) SERVED PERSONALLY OR IF LEFT ADDRESSED TO THE LESSEE ON THE PREMISES;
(II) SENT BY FACSIMILE MACHINE TO THE LESSEE'S FACSIMILE MACHINE; OR
(III) FORWARDED BY PREPAID REGISTERED POST TO THE LAST KNOWN PLACE OF
BUSINESS OR ABODE OF THE LESSEE OR THE LESSEE'S REGISTERED OFFICE IF THE LESSEE
IS A CORPORATION.
(D) SERVICE OF NOTICE ON LESSOR: ANY NOTICE REQUIRED TO BE SERVED ON THE
LESSOR SHALL BE SUFFICIENTLY SERVED IF:
(I) SERVED PERSONALLY;
(II) SENT BY FACSIMILE MACHINE TO THE LESSOR'S TELEX OR FACSIMILE MACHINE;
OR
(III) FORWARDED BY PREPAID REGISTERED POST ADDRESSED TO THE LESSOR.
ALL SUCH NOTICES MUST BE ADDRESSED TO THE LESSOR AT THE ADDRESS SPECIFIED IN
THIS LEASE OR AT SUCH OTHER ADDRESS AS THE LESSOR SHALL FROM TIME TO TIME
NOMINATE.
(E) TIME OF: ANY NOTICE SENT BY:
(I) POST SHALL BE DEEMED TO BE SERVED ON THE SECOND BUSINESS DAY AFTER THE
DAY IT WAS POSTED;
(II) FACSIMILE SHALL BE DEEMED TO HAVE BEEN SERVED AT THE TIME AND ON THE
DAY THAT THE SENDING FACSIMILE MACHINE INDICATES THE WHOLE OF THE NOTICE HAS
BEEN TRANSMITTED UNLESS THE INTENDED RECIPIENT FORTHWITH INDICATES A MALFUNCTION
IN THE TRANSMISSION.
60.2 COSTS
THE LESSEE SHALL PAY TO THE LESSOR ON DEMAND:
(A) DUTY: ALL DUTY (INCLUDING PENALTIES AND FINES OTHER THAN PENALTIES AND
FINES DUE TO THE DEFAULT OF THE LESSOR) IN RESPECT OF THIS LEASE; AND
(B) LESSOR'S OTHER COSTS: ALL THE LESSOR'S REASONABLE LEGAL AND OTHER COSTS
OF AND INCIDENTAL TO:
(I) (DELETED);
(II) ANY CONSENT REQUIRED UNDER THIS LEASE;
(III) ANY ASSIGNMENT OR SUBLETTING;
(IV) ANY SURRENDER OR TERMINATION OF THIS LEASE OTHERWISE THAN BY
EFFLUXION OF TIME; AND
(V) DEFAULT BY THE LESSEE OR THE LESSEE'S EMPLOYEES IN OBSERVING OR
PERFORMING ANY COVENANTS CONTAINED OR IMPLIED IN THIS LEASE.
(VI) THE ACTUAL OR CONTEMPLATED ENFORCEMENT OF, OR ACTUAL OR
CONTEMPLATED EXERCISE, PRESERVATION OR CONSIDERATION OF ANY RIGHTS, POWERS OR
REMEDIES UNDER THIS LEASE.
60.3 RESERVATIONS
THE LESSOR RESERVES TO ITSELF AND ALL PERSONS CLAIMING BY, THROUGH OR UNDER THE
LESSOR, AFTER REASONABLE NOTICE (EXCEPT IN THE CASE OF AN EMERGENCY WHEN NO
NOTICE SHALL BE NECESSARY), THE RIGHT TO INSTALL, MAINTAIN, USE, REPAIR, ALTER,
SERVICE AND REPLACE ANY SERVICES OR ANY PART OF THEM INCLUDING ANY PIPE, DUCT,
WIRE AND PLANT FOR THE LAND AND/OR FOR THE BUILDING.
60.4 EASEMENTS
THE LESSOR MAY, FOR THE PURPOSE OF THE PROVISION OF PUBLIC OR PRIVATE ACCESS TO
THE PREMISES OR THE BUILDING, OR FOR THE PURPOSE OF RECTIFYING ANY ENCROACHMENT,
OR FOR THE SUPPORT OF STRUCTURES HEREAFTER ERECTED ON OR FROM ADJOINING LAND, OR
FOR ANY SERVICES, DEDICATE LAND OR TRANSFER, GRANT OR CREATE ANY EASEMENT OR
OTHER RIGHT IN FAVOUR OF, OR ENTER INTO ANY ARRANGEMENT OR AGREEMENT WITH, ANY
OWNERS, LESSEES OR OCCUPIERS OR OTHERS HAVING AN INTEREST IN ANY LAND (INCLUDING
THE LAND) NEAR THE PREMISES OR WITH ANY AUTHORITY (PURSUANT TO ANY VALID AND
ENFORCEABLE REQUIREMENT OF ANY SUCH AUTHORITY) AS THE LESSOR MAY DECIDE, ACTING
REASONABLY, PROVIDED SUCH EASEMENT OR RIGHT DOES NOT MATERIALLY INTERFERE WITH
THE LESSEE'S USE AND OCCUPATION OF THE PREMISES UNDER THIS LEASE. THIS LEASE
SHALL BE DEEMED TO BE SUBJECT TO ANY SUCH EASEMENT OR OTHER RIGHT AS ENVISAGED
BY THIS CLAUSE AND THE LESSEE SHALL PROMPTLY UPON REQUEST BY THE LESSOR CONFIRM
TO THE LAND TITLES OFFICE OR OTHER RELEVANT AUTHORITY ITS CONSENT TO THAT
EASEMENT OR OTHER RIGHT.
61. GUARANTEES AND INDEMNITIES
61.1 BANK GUARANTEE
(A) THE LESSEE MUST:
(I) ON OR BEFORE EXECUTING THIS LEASE GIVE TO THE LESSOR A BANK GUARANTEE
FOR THE AMOUNT SPECIFIED IN ITEM 16;
(II) AT ALL TIMES ENSURE THAT ANY BANK GUARANTEE IS KEPT CURRENT AND
ENFORCEABLE; AND
(III) WHERE THE LESSOR MAKES DEMAND ON ANY BANK GUARANTEE, PROVIDE A
REPLACEMENT BANK GUARANTEE EQUAL TO THE AMOUNT FROM TIME TO TIME PROPERLY
CLAIMED BY THE LESSOR.
(B) IF THE LESSEE BREACHES OR FAILS TO COMPLY WITH ANY OF THE LESSEE'S
OBLIGATIONS UNDER THIS LEASE, THE LESSOR MAY WITHOUT LIMITING ANY OTHER
AVAILABLE REMEDY DEMAND PAYMENT UNDER THE BANK GUARANTEE TO RECOVER THE WHOLE OR
ANY PART OF ANY LOSS SUFFERED AS A RESULT OF THE LESSEE'S DEFAULT.
61.2 PERSONAL GUARANTEE
THE GUARANTOR GUARANTEES TO THE LESSOR:
(A) RENT: THE DUE PAYMENT BY THE LESSEE OF THE RENT AND OTHER MONEYS
COVENANTED OR AGREED TO BE PAID; AND
(B) OTHER COVENANTS: THE TIMELY PERFORMANCE AND OBSERVANCE OF ALL THE
COVENANTS AND CONDITIONS CONTAINED OR IMPLIED IN THIS LEASE AND TO BE PERFORMED
AND OBSERVED BY THE LESSEE.
61.3 INDEMNITY
THE GUARANTOR INDEMNIFIES THE LESSOR AND AGREES AT ALL TIMES TO KEEP THE LESSOR
INDEMNIFIED FROM AND AGAINST ALL CLAIMS WHICH THE LESSOR MAY SUFFER OR INCUR
CONSEQUENT UPON OR ARISING DIRECTLY OR INDIRECTLY OUT OF ANY BREACH OR
NON-OBSERVANCE BY THE LESSEE OF ANY OF THE COVENANTS OR CONDITIONS CONTAINED OR
IMPLIED IN THIS LEASE OR ANY EXTENSION OR RENEWAL OF IT AND TO BE PERFORMED OR
OBSERVED BY THE LESSEE.
61.4 LIABILITY OF GUARANTOR
(A) LIABILITY OF GUARANTOR: THE RIGHTS, REMEDIES AND RECOURSE OF THE LESSOR
PURSUANT TO CLAUSES 13.2 AND 13.3 SHALL NOT IN ANY WAY BE PREJUDICED OR AFFECTED
AND SHALL REMAIN FULLY ENFORCEABLE, AND THE LIABILITY OF THE GUARANTOR UNDER
CLAUSES 13.2 AND 13.3 SHALL NOT BE PREJUDICED OR AFFECTED, NOTWITHSTANDING ANY
ONE OR MORE OR ALL OF THE FOLLOWING CIRCUMSTANCES:
(I) THE GRANTING OF ANY TIME, CREDIT, FORBEARANCE, INDULGENCE OR CONCESSION
AT ANY TIME BY THE LESSOR TO THE LESSEE OR TO ANY GUARANTOR;
(II) ANY ABSOLUTE OR PARTIAL RELEASE OF THE LESSEE OR ANY GUARANTOR OR
ANY COMPROMISE WITH THE LESSEE OR ANY GUARANTOR;
(III) ANY VARIATION OF THE PROVISIONS OF THIS LEASE OR ANY EXTENSION OR
RENEWAL OF IT AND ANY EXTENSION OR RENEWAL OR HOLDING OVER OF THE TERM OR OTHER
CONTINUED OCCUPATION OF THE PREMISES BY THE LESSEE;
(IV) ANY COMPOSITION, COMPROMISE, RELEASE, DISCHARGE, ARRANGEMENT,
ABANDONMENT, WAIVER, VARIATION, RELINQUISHMENT OR RENEWAL OF ANY SECURITY OR
RIGHT BY THE LESSOR;
(V) ANY ASSIGNMENT OF THIS LEASE OR SUBLEASE OF THE PREMISES OR ANY
PART OF THEM;
(VI) ANY TERMINATION OR DETERMINATION OF THIS LEASE (WHETHER BY
EFFLUXION OF TIME, RE-ENTRY, FORFEITURE, SURRENDER OR OTHERWISE);
(VII) THE FACT THAT THE RENT OR ANY OTHER MONEYS OR ANY PART OF THEM
MAY NOT BE RECOVERABLE OR MAY CEASE TO BE RECOVERABLE OR MAY NEVER HAVE BEEN
RECOVERABLE, OR THAT ANY TRANSACTION AFFECTING IN ANY WAY THE RENT OR THE
OBLIGATIONS CONTAINED OR SECURED BY THIS LEASE IS VOID, VOIDABLE OR
UNENFORCEABLE IN WHOLE OR IN PART WHETHER INITIALLY OR OTHERWISE;
(VIII) ANY FAILURE OR AGREEMENT NOT TO SUE, EXCHANGE 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 JUDGMENT,
ORDER FOR PAYMENT OF MONEYS, SPECIALTY INSTRUMENT, NEGOTIABLE OR OTHERWISE, OR
OTHER SECURITY WHATEVER RECOVERED, HELD OR ENFORCEABLE BY THE LESSOR OR WITH
RESPECT TO ANY OBLIGATION OR LIABILITY WHATEVER IN RESPECT OF ALL OR ANY OF THE
RENT AND OTHER MONEYS PAYABLE UNDER THIS LEASE OR THE OBLIGATIONS CONTAINED IN
THIS LEASE.
(IX) THE DEATH, DISABILITY, BANKRUPTCY, INFANCY, DEED OR ARRANGEMENT,
ASSIGNMENT OR COMPOSITION FOR THE BENEFIT OF CREDITORS, WINDING-UP, SCHEME OF
ARRANGEMENT, REDUCTION OF CAPITAL, CAPITAL RECONSTRUCTION OR THE APPOINTMENT OF
RECEIVER AND/OR MANAGER (WHETHER BY THE COURT OR UNDER THE POWERS CONTAINED IN
ANY INSTRUMENT) OR OFFICIAL MANAGEMENT OF THE LESSEE OR ANY GUARANTOR OR NOTICE
OF ANY OF THESE CIRCUMSTANCES;
(X) THE FACT THAT ONE OR MORE OF THE PERSONS NAMED IN THIS LEASE AS A
GUARANTOR MAY NEVER EXECUTE THIS LEASE AS GUARANTOR OR THAT THE EXECUTION OF
THIS LEASE BY ANY ONE OR MORE OF THE GUARANTOR (OTHER THAN THE PERSON SOUGHT TO
BE MADE LIABLE UNDER CLAUSE 13.2 OR CLAUSE 13.3) IS OR MAY BECOME UNENFORCEABLE,
VOID OR VOIDABLE; OR
(XI) ANY EXERCISE OR PURPORTED EXERCISE BY THE LESSOR OF ITS RIGHT OF
RE-ENTRY.
(B) IRREVOCABLE: THIS GUARANTEE AND INDEMNITY SHALL BE IRREVOCABLE AND
CONTINUING AND SHALL EXTEND TO COVER ALL OBLIGATIONS OF THE LESSEE TO THE LESSOR
HOWEVER ARISING, AND THEY SHALL CONTINUE AND REMAIN IN FULL FORCE AND EFFECT
UNTIL THE DUE PERFORMANCE AND OBSERVANCE BY THE LESSEE OF ALL THE COVENANTS AND
CONDITIONS TO BE PERFORMED AND OBSERVED BY THE LESSEE IN ACCORDANCE WITH THE
TERMS OF THIS LEASE.
(C) GUARANTEE NOT PREJUDICED: 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 ANY EVENT OR SECURITIES OF
ANY DESCRIPTION WHICH MIGHT OTHERWISE HAVE THE EFFECT (WHETHER AT LAW IN EQUITY
OR UNDER ANY LAW) OF PREJUDICING OR DISCHARGING THE LIABILITY OF THE GUARANTOR,
EITHER AS GUARANTOR OR PRINCIPAL DEBTOR OR AS AN INDEMNIFIER.
(D) GUARANTOR LIABLE NOTWITHSTANDING ANY LAW: THE GUARANTOR FURTHER AGREES
THAT ANY PAYMENT MADE TO THE LESSOR AND LATER AVOIDED BY PROVISIONS OF ANY LAW
SHALL BE DEEMED NOT TO HAVE DISCHARGED THE GUARANTOR'S LIABILITY, AND IN ANY
SUCH EVENT THE LESSOR, THE LESSEE AND THE GUARANTOR SHALL BE RESTORED TO THE
RIGHTS WHICH EACH RESPECTIVELY WOULD HAVE HAD IF THE PAYMENT HAD NOT BEEN MADE.
(E) INDEMNITY ON DISCLAIMER: THE GUARANTOR AGREES TO INDEMNIFY AND KEEP
INDEMNIFIED THE LESSOR AGAINST ALL CLAIMS, DIRECT OR INDIRECT, SUSTAINED OR
INCURRED BY THE LESSOR CONSEQUENT UPON ANY DISCLAIMER OF THIS LEASE BY A
LIQUIDATOR OF THE LESSEE FOR THE RESIDUE OF THE TERM WHICH WOULD HAVE REMAINED
IF THERE HAD BEEN NO DISCLAIMER.
(F) GUARANTOR NOT PROVE IN LIQUIDATION: THE GUARANTOR SHALL NOT PROVE OR
CLAIM IN ANY SUCH LIQUIDATION, COMPOSITION, ARRANGEMENT OR ASSIGNMENT OR IN
RESPECT OF SUCH APPOINTMENT UNTIL THE LESSOR HAS RECEIVED ONE HUNDRED CENTS IN
THE DOLLAR IN RESPECT OF THE MONEYS DUE, OWING OR PAYABLE BY THE LESSEE TO THE
LESSOR, AND THE GUARANTOR SHALL HOLD IN TRUST FOR THE LESSOR SUCH PROOF AND
CLAIM AND ANY DIVIDEND RECEIVED ON IT.
61.5 GUARANTEE TO ENURE
IF THIS LEASE IS TRANSFERRED OR ASSIGNED TO ANY PERSON OR PERSONS THE BENEFIT OF
THIS GUARANTEE AND INDEMNITY SHALL EXTEND TO THE TRANSFEREE OR ASSIGNEE AND THE
BENEFIT OF THIS GUARANTEE AND INDEMNITY SHALL CONTINUE TO ENURE CONCURRENTLY FOR
THE BENEFIT OF THE LESSOR NOTWITHSTANDING ANY SUCH TRANSFER OR ASSIGNMENT.
62. REPAIRS MAINTENANCE AND COMPLIANCE WITH LAWS
62.1 IN ADDITION TO THE OTHER OBLIGATIONS OF THE LESSEE CONTAINED IN THIS
LEASE, SUBJECT TO CLAUSE 14.2 THE LESSEE MUST:
(A) ENSURE THAT ALL AIR-CONDITIONING PLANT, FIRE PREVENTION EQUIPMENT AND
ALL OTHER PLANT MACHINERY INSTALLATIONS AND EQUIPMENT IN OR SERVICING THE
BUILDING (COLLECTIVELY CALLED "PLANT") ARE ONLY USED FOR THEIR PROPER PURPOSE
AND MUST [SUBJECT TO CLAUSES 5.1(A) AND (B)] MAINTAIN AND KEEP SUCH PLANT IN
GOOD REPAIR AND CONDITION HAVING REGARD TO ITS CONDITION AT THE COMMENCEMENT OF
THIS LEASE (OR AT THE COMMENCEMENT OF ANY PRIOR LEASE IF THIS LEASE IS GRANTED
PURSUANT TO AN OPTION) OR AT THE TIME OF ANY REPLACEMENT, EXCEPT FOR FAIR WEAR
AND TEAR BUT THE LESSEE SHALL NOT BE LIABLE FOR ANY EXPENSES OF A CAPITAL NATURE
UNLESS THEY RESULT FROM THE LESSEE'S FAILURE TO SO MAINTAIN THE PLANT; AND
(B) ENTER INTO AND KEEP CURRENT DURING THIS LEASE A MAINTENANCE CONTRACT
WITH SUCH RESPONSIBLE SPECIALIST CONTRACTORS AS ARE REASONABLY APPROVED BY THE
LESSOR FOR THE REGULAR INSPECTION, SERVICE, MAINTENANCE AND REPAIR (INCLUDING
THE TESTING AND INSPECTION OF SUCH EQUIPMENT PURSUANT TO THE REQUIREMENTS OF ALL
AUTHORITIES) OF ALL SUCH PLANT AND SHALL PAY ALL FEES AND OTHER CHARGES PAYABLE
TO SUCH CONTRACTORS. IN PARTICULAR, THE SERVICE MAINTENANCE CONTRACT FOR THE
AIR-CONDITIONING PLANT SHALL INCLUDE PROVISIONS FOR INSPECTION OF SUCH PLANT NOT
LESS FREQUENTLY THAN ONCE EVERY THREE MONTHS.
62.2 THE LESSEE SHALL ASSIGN AND THE LESSOR SHALL TAKE AN ASSIGNMENT OF THE
ELEVATOR SERVICE AGREEMENT BETWEEN THE LESSEE AND KONE ELEVATORS PTY LIMITED
("KONE") WHICH COMMENCED ON 1 MARCH 2000 WITH RESPECT TO THE PREMISES. THE
LESSOR AND THE LESSEE ACKNOWLEDGE THAT, WHILE THE AGREEMENT SUBSISTS DURING THE
TERM, THE MAINTAINING OF THE ELEVATORS IN THE PREMISES AND THE KEEPING OF THE
ELEVATORS IN GOOD REPAIR AND CONDITION WILL BE THE RESPONSIBILITY OF KONE AND
THE LESSEE WILL REIMBURSE THE LESSOR FOR AMOUNTS PROPERLY PAYABLE TO KONE UNDER
THE AGREEMENT.
62.3 THE LESSEE MUST COMPLY WITH THE LESSOR'S REASONABLE DIRECTIONS ABOUT
REFUSE REMOVAL AND RECYCLING.
62.4 THE LESSOR WILL NOTIFY THE LESSEE (IF POSSIBLE) OF ANY INTERRUPTION TO
ANY SERVICE PROVIDED UNDER THIS LEASE AND REINSTATE THE SERVICE AS SOON AS
PRACTICABLE AFTER SUCH INTERRUPTION.
63. ENVIRONMENTAL PROTECTION
63.1 THE LESSEE AGREES TO COMPLY WITH ALL ENVIRONMENTAL PROTECTION
LEGISLATION DURING THE TERM TO THE EXTENT THAT THE LESSEE CAUSES ANY REQUIREMENT
OF SUCH LEGISLATION TO BE APPLIED TO THE PREMISES AND WILL NOT BRING ONTO OR
ALLOW TO REMAIN ON THE PREMISES ANY SUBSTANCE OR MATERIAL, THE PRESENCE OF WHICH
IS, OR WITH THE PASSAGE OF TIME MAY, CONSTITUTE OR CREATE AN ENVIRONMENTAL
CONTAMINATION RISK OR HAZARD EXCEPT SUCH AS MAY BE REQUIRED FOR THE LESSEE'S
BUSINESS AND THE LESSEE SHALL COMPLY WITH ANY LAW IN RESPECT OF SUCH SUBSTANCES
OR MATERIALS WHICH ARE SO REQUIRED.
63.2 THE LESSEE INDEMNIFIES THE LESSOR FROM AND AGAINST ALL COSTS, DAMAGES,
PENALTIES, FINES, LOSSES OR CLAIMS WHICH THE LESSOR MAY SUSTAIN AS A RESULT OF
ANY BREACH OF CLAUSE 15.1 BY THE LESSEE INCLUDING THE COST INCURRED BY THE
LESSOR IN CLEANING UP THE REINSTATING THE PREMISES, DISPOSING OF ANY SUCH
MATERIAL AND COMPLYING WITH ALL LEGAL REQUIREMENTS IN THE REMOVAL, STORAGE,
TRANSPORTATION AND DISPOSAL OF THE MATERIAL.
64. RULES AND REGULATIONS
64.1 THE LESSEE MUST OBSERVE AND COMPLY WITH RULES AND REGULATIONS IN
RESPECT OF THE MANAGEMENT, SAFETY AND CONTROL OF THE BUILDING OR IN THE CONDUCT
OF OCCUPANTS OF THE BUILDING NOTIFIED TO THE LESSEE FROM TIME TO TIME AS VARIED,
ADDED TO, DELETED OR AMENDED.
64.2 THE LESSOR SHALL HAVE THE RIGHT AT ANY TIME AND FROM TIME TO TIME TO
DELETE VARY AMEND OR ADD TO THE SAID RULES AND REGULATIONS. THE LESSEE MUST
OBSERVE AND COMPLY WITH SUCH DELETIONS VARIATIONS AMENDMENTS OR ADDITIONS
FOLLOWING NOTICE IN WRITING FROM THE LESSOR.
64.3 DESPITE THE FOREGOING, NO RULE OR REGULATION OR DELETION VARIATION
AMENDMENT OR ADDITION TO ANY RULE OR REGULATION SHALL DEROGATE FROM OR BE
INCONSISTENT WITH THE RIGHTS OF THE LESSEE UNDER THIS LEASE.
64.4 SUBJECT TO THE PRECEDING SUBCLAUSE, THE LESSEE ACKNOWLEDGES AND AGREES
THAT THE FAILURE OF THE LESSEE TO KEEP ANY SUCH RULES AND REGULATIONS AS MAY BE
IN FORCE SHALL CONSTITUTE A BREACH OF THE TERMS OF THIS LEASE.
65. DISPUTE RESOLUTION
(A) A PARTY MUST NOT COMMENCE LEGAL PROCEEDINGS (OTHER THAN FOR INJUNCTIVE
RELIEF) UNLESS IT HAS COMPLIED WITH THIS CLAUSE.
(B) IF THERE IS A DISPUTE BETWEEN THE PARTIES, EITHER PARTY MAY GIVE A
NOTICE TO THE OTHER:
(I) SUCCINCTLY SETTLING OUT THE DETAILS OF THE DISPUTE;
(II) STATING THAT IT IS A DISPUTE NOTICE GIVEN UNDER THIS CLAUSE.
(C) WITHIN 10 BUSINESS DAYS AFTER THE DELIVERY OF THE DISPUTE NOTICE, THE
RECIPIENT MUST DELIVER TO THE OTHER PARTY A NOTICE IN RESPONSE:
(I) STATING THAT IT IS A NOTICE GIVEN UNDER THIS CLAUSE; AND
(II) SUCCINCTLY SETTING OUT ANY INFORMATION IT BELIEVES IS DIRECTLY RELEVANT
TO THE DISPUTE.
(D) THE PARTIES MUST MEET WITHIN 15 BUSINESS DAYS AFTER THE DATE OF DELIVERY
OF THE DISPUTE NOTICE TO ATTEMPT TO RESOLVE THE DISPUTE AND MUST USE ITS BEST
ENDEAVOURS AND ACT IN GOOD FAITH.
(E) (I) IF THE PARTIES CANNOT SOLVE THE DISPUTE WITHIN 20 BUSINESS DAYS
OF THE DATE ON WHICH THE DISPUTE NOTICE IS DELIVERED, EACH PARTY MUST REFER THE
DISPUTE TO ITS RESPECTIVE CHIEF EXECUTIVE OFFICER;
(II) EACH PARTY MUST PROVIDE ITS CHIEF EXECUTIVE OFFICER WITH A COPY OF:
(A) THE DISPUTE NOTICE;
(B) THE NOTICE IN RESPONSE; AND
(C) A SUCCINCT ACCOUNT OF ANY SUBSEQUENT MEETINGS OR CORRESPONDENCE BETWEEN
THE PARTIES.
(F) IF THE CHIEF EXECUTIVE OFFICERS CANNOT SOLVE THE DISPUTE WITHIN 30
BUSINESS DAYS OF THE DATE ON WHICH THE DISPUTE NOTICE IS DELIVERED, THEN NEITHER
PARTY IS RESTRICTED IN PURSUING ITS RIGHTS UNDER THIS LEASE.
(G) EACH PARTY MUST CONTINUE TO PERFORM ITS RESPECTIVE OBLIGATIONS UNDER
THIS LEASE PENDING RESOLUTION OF THE DISPUTE.
66. LIMITATION OF LIABILITY
66.1 THE LESSOR (REFERRED TO IN THIS CLAUSE AS "THE CUSTODIAN") ENTERS INTO
THIS LEASE AS CUSTODIAN AND AGENT OF MACQUARIE ▇▇▇▇▇▇▇ FUNDS MANAGEMENT LIMITED
A.C.N. 067 796 641, THE RESPONSIBLE ENTITY OF THE TRUST AND IN NO OTHER
CAPACITY.
66.2 THE PARTIES OTHER THAN THE CUSTODIAN ACKNOWLEDGE THAT THE OBLIGATIONS
ARE INCURRED BY THE CUSTODIAN SOLELY IN ITS CAPACITY AS CUSTODIAN OF THE ASSETS
OF THE TRUST AND AS AGENT OF THE RESPONSIBLE ENTITY AND THAT THE CUSTODIAN WILL
CEASE TO HAVE ANY OBLIGATION UNDER THIS LEASE IF THE CUSTODIAN CEASES FOR ANY
REASON TO BE CUSTODIAN OF THE ASSETS OF THE TRUST.
66.3 THE CUSTODIAN WILL NOT BE LIABLE TO PAY OR SATISFY ANY OBLIGATIONS
EXCEPT TO THE EXTENT TO WHICH IT IS INDEMNIFIED BY THE RESPONSIBLE ENTITY OR
EXCEPT OUT OF THE ASSETS AGAINST WHICH IT IS ENTITLED TO BE INDEMNIFIED IN
RESPECT OF ANY LIABILITY INCURRED BY IT. THE OBLIGATION OF THE RESPONSIBLE
ENTITY TO INDEMNIFY THE CUSTODIAN AND THE RIGHT OF THE CUSTODIAN TO BE
INDEMNIFIED OUT OF THE ASSETS ARE LIMITED.
66.4 THE PARTIES OTHER THAN THE CUSTODIAN MAY ENFORCE THEIR RIGHTS AGAINST
THE CUSTODIAN ARISING FROM NON-PERFORMANCE OF THE OBLIGATIONS ONLY TO THE EXTENT
OF THE CUSTODIAN INDEMNITY AS PROVIDED ABOVE IN SUBCLAUSE 3.
66.5 IF ANY PARTY OTHER THAN THE CUSTODIAN DOES NOT RECOVER ALL MONEY OWING
TO IT ARISING FROM NON-PERFORMANCE OF THE OBLIGATIONS IT MAY NOT SEEK TO RECOVER
THE SHORTFALL BY:
(A) BRINGING PROCEEDINGS AGAINST THE CUSTODIAN IN ITS PERSONAL CAPACITY; OR
(B) APPLYING TO HAVE THE CUSTODIAN WOUND UP OR PROVING IN THE WINDING UP OF
THE CUSTODIAN.
66.6 EXCEPT IN THE CASE OF AND TO THE EXTENT OF FRAUD, NEGLIGENCE OR BREACH
OF DUTY ON THE PART OF THE CUSTODIAN UNDER ITS CUSTODY AGREEMENT WITH THE
RESPONSIBLE ENTITY, THE PARTIES OTHER THAN THE CUSTODIAN WAIVE THEIR RIGHTS AND
RELEASE THE CUSTODIAN FROM ANY PERSONAL LIABILITY WHATSOEVER, IN RESPECT OF ANY
LOSS OR DAMAGE:
(A) WHICH THEY MAY SUFFER AS A RESULT OF ANY:
(I) BREACH BY THE CUSTODIAN OF ANY OF ITS OBLIGATIONS; OR
(II) NON-PERFORMANCE BY THE CUSTODIAN OF THE OBLIGATIONS; AND
(B) WHICH CANNOT BE PAID OR SATISFIED FROM THE INDEMNITY SET OUT ABOVE IN
SUBCLAUSE 3 IN RESPECT OF ANY LIABILITY INCURRED BY IT.
66.7 THE PARTIES OTHER THAN THE CUSTODIAN ACKNOWLEDGE THAT THE WHOLE OF THIS
LEASE IS SUBJECT TO THIS CLAUSE AND SUBJECT TO SUBCLAUSE 6 THE CUSTODIAN SHALL
IN NO CIRCUMSTANCES BE REQUIRED TO SATISFY ANY LIABILITY ARISING UNDER, OR FOR
NON PERFORMANCE OR BREACH OF ANY OBLIGATIONS UNDER OR IN RESPECT OF, THIS LEASE
OR UNDER OR IN RESPECT OF ANY OTHER DOCUMENT TO WHICH IT IS EXPRESSED TO BE A
PARTY OUT OF ANY FUNDS, PROPERTY OR ASSETS OTHER THAN TO THE EXTENT THAT THIS
LEASE REQUIRES SATISFACTION OUT OF THE ASSETS OF THE TRUST UNDER THE CUSTODIAN'S
CONTROL AND IN ITS POSSESSION AS AND WHEN THEY ARE AVAILABLE TO THE CUSTODIAN TO
BE APPLIED IN EXONERATION FOR SUCH LIABILITY.
66.8 THE PARTIES ACKNOWLEDGE THAT THE RESPONSIBLE ENTITY OF THE TRUST IS
RESPONSIBLE UNDER THE CONSTITUTION FOR PERFORMING A VARIETY OF OBLIGATIONS
RELATING TO THE TRUST, INCLUDING UNDER THIS LEASE. THE PARTIES AGREE THAT NO
ACT OR OMISSION OF THE CUSTODIAN (INCLUDING ANY RELATED FAILURE TO SATISFY ANY
OBLIGATIONS) WILL CONSTITUTE FRAUD, NEGLIGENCE OR BREACH OF DUTY OF THE
CUSTODIAN FOR THE PURPOSES OF SUBCLAUSE 6 TO THE EXTENT TO WHICH THE ACT OR
OMISSION WAS CAUSED TO OR CONTRIBUTED TO BY ANY FAILURE OF THE RESPONSIBLE
ENTITY OR ANY OTHER PERSON TO FULFIL ITS OBLIGATIONS RELATING TO THE TRUST OR BY
ANY OTHER ACT OR OMISSION OF THE RESPONSIBLE ENTITY OR ANY OTHER PERSON.
66.9 NO ATTORNEY, AGENT OR OTHER PERSON APPOINTED IN ACCORDANCE WITH THIS
LEASE HAS AUTHORITY TO ACT ON BEHALF OF THE CUSTODIAN IN A WAY WHICH EXPOSES THE
CUSTODIAN TO ANY PERSONAL LIABILITY AND NO ACT OR OMISSION OF SUCH A PERSON WILL
BE CONSIDERED FRAUD, NEGLIGENCE OR BREACH OF DUTY OF THE CUSTODIAN FOR THE
PURPOSES OF SUBCLAUSE 6.
66.10 IN THIS CLAUSE THE "OBLIGATIONS" MEANS ALL OBLIGATIONS AND LIABILITIES
OF WHATEVER KIND UNDERTAKEN OR INCURRED BY, OR DEVOLVING UPON, THE CUSTODIAN
UNDER OR IN RESPECT OF THIS LEASE. "ASSETS" INCLUDES ALL ASSETS, PROPERTY AND
RIGHTS REAL AND PERSONAL OF ANY VALUE WHATSOEVER OF THE TRUST, AND "RESPONSIBLE
ENTITY" MEANS MACQUARIE ▇▇▇▇▇▇▇ FUNDS MANAGEMENT LIMITED OR ANY REPLACEMENT
RESPONSIBLE ENTITY OF THE TRUST FROM TIME TO TIME. "TRUST" MEANS THE MACQUARIE
▇▇▇▇▇▇▇ CAPITAL TRUST, "CUSTODY AGREEMENT" MEANS THE AGREEMENT MADE BETWEEN
MACQUARIE ▇▇▇▇▇▇▇ FUNDS MANAGEMENT LIMITED (PREVIOUSLY KNOWN AS ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
MANAGEMENT AUSTRALIA LIMITED) AND TRUST COMPANY OF AUSTRALIA LIMITED DATED 17
JANUARY 2000 OR SUCH REPLACEMENT AGREEMENT. "CONSTITUTION" MEANS THE TRUST DEED
ESTABLISHING THE TRUST DATED 13 DECEMBER 1989 AS AMENDED FROM TIME TO TIME.
67. RESPONSIBLE ENTITY'S LIMITATION OF LIABILITY
67.1 THE RESPONSIBLE ENTITY (AS TESTIFIED BY ITS EXECUTION OF THIS LEASE)
INCURS OBLIGATIONS UNDER THIS LEASE AS RESPONSIBLE ENTITY OF THE TRUST AND IN NO
OTHER CAPACITY. AN OBLIGATION CAN BE ENFORCED AGAINST THE RESPONSIBLE ENTITY
ONLY TO THE EXTENT TO WHICH IT IS SATISFIED OUT OF PROPERTY OF THE TRUST OUT OF
WHICH THE RESPONSIBLE ENTITY IS ACTUALLY INDEMNIFIED FOR THE OBLIGATION. THIS
LIMITATION OF THE RESPONSIBLE ENTITY'S LIABILITY APPLIES DESPITE ANY OTHER
PROVISION OF THIS LEASE AND EXTENDS TO ALL OBLIGATIONS.
67.2 THE PARTIES OTHER THAN THE RESPONSIBLE ENTITY MAY NOT SUE THE
RESPONSIBLE ENTITY IN ANY CAPACITY OTHER THAN AS RESPONSIBLE ENTITY OF THE
TRUST, INCLUDING SEEK THE APPOINTMENT OF A RECEIVER (EXCEPT IN RELATION TO
PROPERTY OF THE TRUST), A LIQUIDATOR, AN ADMINISTRATOR OR ANY SIMILAR PERSON TO
THE RESPONSIBLE ENTITY OR PROVE IN ANY LIQUIDATION, ADMINISTRATION OR
ARRANGEMENT OF OR AFFECTING THE RESPONSIBLE ENTITY (EXCEPT IN RELATION TO
PROPERTY OF THE TRUST).
67.3 THE PROVISIONS OF THIS CLAUSE DO NOT APPLY TO AN OBLIGATION TO THE
EXTENT THAT IT IS NOT SATISFIED BECAUSE UNDER THE TRUST DEED ESTABLISHING THE
TRUST OR BY OPERATION OF LAW THERE IS A REDUCTION IN THE EXTENT OF THE
RESPONSIBLE ENTITY'S INDEMNIFICATION OUT OF THE ASSETS OF THE TRUST, AS A RESULT
OF THE RESPONSIBLE ENTITY'S FRAUD, NEGLIGENCE OR BREACH OF TRUST. THE
RESPONSIBLE ENTITY IS NOT TO BE REGARDED AS BEING NEGLIGENT OR IN BREACH OF
TRUST TO THE EXTENT TO WHICH ANY FAILURE BY THE RESPONSIBLE ENTITY TO SATISFY
ITS OBLIGATIONS UNDER THIS LEASE HAS BEEN CAUSED OR CONTRIBUTED TO BY A FAILURE
BY ANY PERSON TO FULFIL ITS OBLIGATIONS IN RELATION TO THE TRUST OR ANY OTHER
ACT OR OMISSION OF ANOTHER PERSON.
67.4 NO ATTORNEY, AGENT, RECEIVER, OR RECEIVER AND MANAGER APPOINTED IN
ACCORDANCE WITH THIS LEASE HAS AUTHORITY TO ACT ON BEHALF OF THE RESPONSIBLE
ENTITY IN ANY WAY WHICH EXPOSES THE RESPONSIBLE ENTITY TO ANY PERSONAL LIABILITY
AND NO ACT OR OMISSION OF ANY SUCH PERSON WILL BE CONSIDERED FRAUD, NEGLIGENCE
OR BREACH OF TRUST OF THE RESPONSIBLE ENTITY FOR THE PURPOSE OF SUBCLAUSE 3 OF
THIS CLAUSE.
67.5 THE RESPONSIBLE ENTITY IS NOT OBLIGED TO DO OR REFRAIN FROM DOING
ANYTHING UNDER THIS LEASE (INCLUDING INCUR ANY LIABILITY) UNLESS THE RESPONSIBLE
ENTITY'S LIABILITY IS LIMITED IN THE SAME MANNER AS SET OUT IN SUBCLAUSES 1 TO 3
OF THIS CLAUSE.
67.6 FOR THE PURPOSES OF THIS CLAUSE:
"OBLIGATIONS" MEANS ALL OBLIGATIONS AND LIABILITIES OF WHATSOEVER KIND,
UNDERTAKEN OR INCURRED BY, OR DEVOLVING UPON THE RESPONSIBLE ENTITY UNDER OR IN
RESPECT OF THIS LEASE OR ANY DEED, AGREEMENT OR OTHER INSTRUMENT COLLATERAL WITH
THIS LEASE OR GIVEN OR ENTERED INTO UNDER THIS LEASE AND INCLUDES, WITHOUT
LIMITATION, ALL LIABILITIES OF THE RESPONSIBLE ENTITY IN ANY WAY CONNECTED WITH
ANY REPRESENTATION, WARRANTY, CONDUCT, OMISSION, AGREEMENT OR TRANSACTION
RELATED TO THIS LEASE. "TRUST" MEANS THE MACQUARIE ▇▇▇▇▇▇▇ CAPITAL TRUST.
67.7 THE RESPONSIBLE ENTITY WARRANTS TO THE LESSEE THAT, IN ENTERING INTO
THIS LEASE, THE RESPONSIBLE ENTITY WILL NOT BE IN BREACH OF THE CUSTODY
AGREEMENT AND WILL BE ENTITLED TO BE INDEMNIFIED OUT OF THE ASSETS OF THE TRUST
IN RELATION TO ITS OBLIGATIONS AS LESSEE ARISING UNDER THIS LEASE.
RENT SCHEDULE
A. DEFINITIONS
IN THIS LEASE THE FOLLOWING TERMS HAVE THE FOLLOWING MEANINGS UNLESS THE
CONTEXT OTHERWISE REQUIRES:
"BASE RENT" MEANS THE AMOUNT OF BASE RENT SPECIFIED IN ITEM 11 AS VARIED FROM
TIME TO TIME IN ACCORDANCE WITH THE PROVISIONS OF THIS LEASE;
"LEASE YEAR" MEANS EACH PERIOD OF TWELVE (12) MONTHS COMMENCING ON AND FROM THE
COMMENCEMENT DATE;
"LESSEE'S OPERATING EXPENSE CONTRIBUTION" MEANS THE AMOUNT FROM TIME TO TIME
PAYABLE BY THE LESSEE TO THE LESSOR UNDER CLAUSE C.1;
"OPERATING EXPENSES" MEANS THE TOTAL OF ALL AMOUNTS PAID BY THE LESSOR (OR FOR
THE PAYMENT OF WHICH THE LESSOR MAY BE OR BECOME LIABLE) IN ANY OUTGOINGS YEAR
IN RESPECT OF THE BUILDING AND/OR THE LAND (WHETHER BY DIRECT ASSESSMENT OR BY
VIRTUE OF ANY COVENANT IN ANY HEAD LEASE OR OTHERWISE) UNDER THE FOLLOWING
SUBCLAUSES (A), (B) AND (C):
(A) STATUTORY OR REGULATORY: ALL RATES PAYABLE TO ANY AUTHORITY OR UNDER
ANY LAW IN RESPECT OF:
(I) THE BUILDING OR ANY PART OF IT;
(II) THE LAND OR ANY PART OF IT;
(III) THE LESSOR'S OWNERSHIP AND OPERATION OF THE WHOLE OR ANY PART OF THE
BUILDING AND/OR THE LAND; AND/OR
(IV) RECEIPTS OF RENT AND OTHER MONEYS PAYABLE IN RESPECT OF THE WHOLE OR
ANY PART OF THE BUILDING AND/OR THE LAND;
INCLUDING:
(A) COUNCIL RATES: ALL RATES PAYABLE TO ANY AUTHORITY RELATING TO THE USE
AND OCCUPATION OF THE BUILDING AND/OR FOR ANY SERVICES OF THE TYPE FROM TIME TO
TIME PROVIDED BY THE LOCAL GOVERNMENT AUTHORITY FOR THE LOCALITY IN WHICH THE
BUILDING IS SITUATED, AND FOR WASTE AND GENERAL GARBAGE REMOVAL FROM THE
BUILDING, INCLUDING ANY EXCESS;
(B) WATER RATES: ALL RATES PAYABLE TO ANY AUTHORITY FOR THE PROVISION,
RETICULATION OR DISCHARGE OF WATER AND/OR SEW-AGE AND/OR DRAINAGE, INCLUDING
EXCESS WATER OR WATER OR OTHER USAGE CHARGES AND METER RENTS; AND
(C) LAND TAX: LAND TAXES OR TAXES OF THE NATURE OF A TAX ON LAND, COMPUTED
ON THE TAXABLE VALUE OF THE LAND AT THE RATE WHICH WOULD BE PAYABLE BY THE
LESSOR IF THE LAND WERE THE ONLY LAND OWNED BY THE LESSOR IN THE STATE AND THE
LESSOR WERE NOT A TRUSTEE OR NON-CONCESSIONAL COMPANY;
(B) INSURANCES: ALL INSURANCE PREMIUMS AND AMOUNTS PAYABLE IN RESPECT OF
INSURANCE:
(I) BUILDING: ON THE BUILDING OR ANY PART OF IT FOR ITS FULL INSURABLE
VALUE EXCEPT THAT THE LESSEE SHALL NOT BE REQUIRED TO PAY MORE THAN THE AMOUNT
OF THE PREMIUM IT WOULD PAY IF IT WERE EFFECTING SUCH INSURANCE;
(II) LOSS OF RENTS: (SUBJECT TO THE EXCLUSION OF ANY RENTS ARISING
FROM NORMAL VACANCIES DURING LETTING UP PERIODS) FOR LOSS OF ANY RENTS OR OTHER
MONEYS (WHETHER SEPARATE OR OTHERWISE INCLUDED IN ANY RENTS OR OTHER MONEYS
PAYABLE IN RESPECT OF ANY TENANCY OR OCCUPATION OF THE BUILDING) ARISING FROM
DAMAGE OR DESTRUCTION OF THE BUILDING OR ANY PART OF IT OR ARISING FROM
DIMINUTION OR LOSS OF ANY MEANS OF ACCESS OR OTHER SIMILAR CAUSES;
(III) WORKERS' COMPENSATION: FOR WORKERS' COMPENSATION FOR ALL
EMPLOY-EES OF THE LESSOR ENGAGED IN EMPLOYMENT IN CONNECTION WITH THE BUILDING,
BUT WHERE ANY SUCH EMPLOYEE IS ENGAGED IN CONNECTION WITH OTHER BUILDINGS OF THE
LESSOR THE COST OF WORKERS' COMPENSA-TION INSURANCE SHALL BE APPORTIONED BY THE
LESSOR ON A EQUITABLE PRO RATA BASIS; AND
(IV) OTHER RISKS: FOR SUCH OTHER INSURABLE RISKS (INCLUDING MACHINERY
BREAKDOWN AND BOILER EXPLOSION) AS THE LESSOR REASONABLY DEEMS APPROPRIATE FROM
TIME TO TIME;
PROVIDED THAT, FOR ANY PERIOD DURING WHICH AN INDUSTRIAL SPECIAL RISKS POLICY
TAKEN OUT BY THE LESSEE UNDER CLAUSE 7.7 IS ON FOOT, THE LESSOR MUST NOT INCLUDE
WITHIN OPERATING EXPENSES ANY PREMIUMS OR AMOUNTS PAYABLE IN RESPECT OF
INSURANCE UNDER PARAGRAPHS (I) AND (II).
(C) MANAGEMENT EXPENSES: MANAGEMENT, CONTROL, CARETAKING AND SECURITY
EXPENSES ("MANAGEMENT SERVICES") OF THE LAND WHETHER PERFORMED ON THE LAND OR
ELSEWHERE AND WHETHER PERFORMED BY THE LESSOR OR BY OTHERS (INCLUDING SALARIES,
LEAVE ENTITLEMENTS, SUPERANNUATION OR OTHER EMPLOYMENT OVERHEADS PAID BY THE
LESSOR) PROVIDED THAT WHILST EVER A "RESMED COMPANY" [BEING RESMED LIMITED
AND/OR A RELATED BODY CORPORATE (WHICH TERM IN THIS CLAUSE HAS THE MEANING AS
DEFINED IN THE CORPORATIONS ACT 2001) OF RESMED LIMITED] IS THE LESSEE, THE
LESSOR APPOINTS THE RESMED COMPANY TO PERFORM THE MANAGEMENT SERVICES IN WHICH
CASE THE RESMED COMPANY WILL ATTEND TO SAME DILIGENTLY AND AT NO EXPENSE TO THE
LESSOR AND THE LESSOR SHALL NOT INCLUDE ANY SUCH EXPENSES WITHIN OPERATING
EXPENSES.
"OUTGOINGS YEAR" MEANS EACH PERIOD OF TWELVE (12) MONTHS ENDING ON THE DATE
IN EACH YEAR SPECIFIED IN ITEM 17, NOTWITHSTANDING THAT PART OF ANY SUCH TWELVE
(12) MONTH PERIOD DOES NOT FALL WITHIN THE TERM (OR ANY PERIOD OF HOLDING OVER
AS APPROPRIATE);
"RATES" INCLUDES ALL RATES, TAXES, CHARGES, COSTS, ASSESSMENTS, DUTIES,
IMPOSITIONS, LEVIES, SURCHARGES OR FEES, OF ANY AUTHORI-TY OR OF ANY LAW BUT
EXCLUDES ANY:
(A) INCOME TAX: TAX ON THE ASSESSABLE INCOME OF THE LESSOR; OR
(D) RATES ASSESSED ON THE PREMISES: RATES ASSESSED DIRECTLY IN RESPECT OF
THE PREMISES AND PAID BY THE LESSEE;
B. BASE RENT
B.1 PAYMENT OF BASE RENT
THE LESSEE COVENANTS WITH THE LESSOR TO PAY TO THE LESSOR, WITHOUT DEMAND AND
WITHOUT ANY DEDUCTION OR RIGHT OF SET-OFF WHATEVER, THE BASE RENT RESERVED BY
THIS LEASE BY EQUAL MONTHLY INSTALMENTS (AND PROPORTIONATELY FOR ANY PART OF A
MONTH) IN ADVANCE ON THE FIRST DAY OF EACH MONTH. THE FIRST INSTAL-MENT SHALL
BE PAID ON THE COMMENCEMENT DATE. ALL SUCH INSTALMENTS SHALL BE PAID TO SUCH
PLACE AND BY SUCH MEANS AS THE LESSOR MAY FROM TIME TO TIME DIRECT.
B.2 PERCENTAGE REVIEW OF BASE RENT
AT THE EXPIRATION OF EACH LEASE YEAR THE BASE RENT SHALL BE VARIED IN ACCORDANCE
WITH THE FOLLOWING FORMULA:
R = R X 103 WHERE IN THIS CLAUSE:
---------
100
R = BASE RENT PAYABLE FOR THE FOLLOWING LEASE YEAR;
R = BASE RENT PAYABLE DURING THE LEASE YEAR JUST ENDED.
C. OPERATING EXPENSES
C.1 LESSEE'S OPERATING EXPENSE CONTRIBUTION
IN ADDITION TO THE BASE RENT THE LESSEE SHALL PAY TO THE LESSOR THE LESSEE'S
OPERATING EXPENSE CONTRIBUTION FOR EACH OUTGOINGS YEAR, THE AMOUNT OF WHICH
SHALL BE CALCULATED AS FOLLOWS:
C = N X I WHERE IN THIS CLAUSE:
-------
Y
C = LESSEE'S OPERATING EXPENSE CONTRIBUTION;
N = THE NUMBER OF DAYS OF THE TERM OR HOLDING OVER (AS APPROPRIATE)
FALLING WITHIN THE RELEVANT OUTGOINGS YEAR;
I = THE AMOUNT (TO THE NEAREST DOLLAR) OF THE OPERATING EXPENSES FOR
THE RELEVANT OUTGOINGS YEAR;
Y = 365 (OR 366 IN THE CASE OF A LEAP YEAR).
C.2 LESSOR'S ESTIMATE
THE LESSOR MAY:
(E) BEFORE OR DURING EACH OUTGOINGS YEAR NOTIFY THE LESSEE OF THE LESSOR'S
REASONABLE ESTIMATE OF THE LESSEE'S OPERATING EXPENSE CONTRIBUTION FOR THAT
OUTGOINGS YEAR; AND
(F) FROM TIME TO TIME DURING THAT OUTGOINGS YEAR BY NOTICE TO THE LESSEE
ADJUST THE REASONABLE ESTIMATE OF THE LESSEE'S OPERAT-ING EXPENSE CONTRIBUTION
AS MAY BE APPROPRIATE TO TAKE ACCOUNT OF CHANGES IN ANY OF THE OPERATING
EXPENSES.
C.3 PAYMENTS ON ACCOUNT
THE LESSEE SHALL PAY ON ACCOUNT OF THE LESSEE'S OPERATING EXPENSE CONTRIBUTION
(SUBJECT TO THIS CLAUSE C, WITHOUT DEMAND AND WITHOUT ANY DEDUCTION OR RIGHT OF
SET OFF WHATEVER) THE ESTIMATES PROVIDED FOR IN CLAUSE C.2 BY EQUAL MONTHLY
INSTALMENTS IN ADVANCE ON THE SAME DAYS AND IN THE SAME MANNER AS THE LESSEE IS
REQUIRED TO PAY BASE RENT.
C.4 ADJUSTMENTS OF PAYMENTS
(B) AS SOON AS PRACTICABLE AFTER THE END OF EACH OUTGOINGS YEAR THE LESSOR
SHALL FURNISH TO THE LESSEE A NOTICE GIVING REASONABLE DETAILS OF THE OPERATING
EXPENSES FOR THAT OUTGOINGS YEAR AND THE LESSEE'S OPERATING EXPENSE
CONTRIBUTION.
(G) THE LESSEE SHALL WITHIN FOURTEEN (14) DAYS AFTER THE DATE OF THE NOTICE
REFERRED TO IN CLAUSE C.4(A) PAY TO THE LESSOR OR THE LESSOR SHALL CREDIT TO THE
LESSEE'S ACCOUNT (AS APPROPRIATE) THE DIFFERENCE BETWEEN THE AMOUNT PAID ON
ACCOUNT OF THE LESSEE'S OPERAT-ING EXPENSE CONTRIBUTION DURING THAT OUTGOINGS
YEAR AND THE AMOUNT ACTUALLY PAYABLE IN RESPECT OF IT BY THE LESSEE, SO THAT THE
LESSEE SHALL HAVE PAID THE CORRECT AMOUNT OF THE LESSEE'S OPERATING EXPENSE
CONTRIBUTION FOR THAT OUTGOINGS YEAR. IN THE ABSENCE OF PATENT ERROR SUCH
NOTICE SHALL BE SUFFICIENT EVIDENCE OF THE MATTERS CONTAINED IN IT UNLESS THE
CONTRARY IS PROVED.
C.5 PAYMENT NOTWITHSTANDING TERMINATION
SUBJECT TO CLAUSE C.6 THE LESSEE'S OPERATING EXPENSE CONTRIBUTION SHALL BE
PAYABLE NOTWITHSTANDING THAT THE TERM MAY HAVE EXPIRED OR BEEN DETERMINED BEFORE
THE LESSEE'S OPERATING EXPENSE CONTRIBUTION FOR ANY PARTICULAR OUTGOINGS YEAR IS
CAPABLE OF BEING FINALLY CALCULATED.
C.6 LESSOR'S RIGHTS NOT DIMINISHED
NOTHING IN CLAUSES C.1 TO C.5 SHALL PREVENT THE LESSOR:
(C) RECOVERING FROM THE LESSEE THE LESSEE'S OPERATING EXPENSE CONTRIBUTION
WHERE THE LESSOR HAS FAILED TO NOTIFY THE LESSEE OF AN ESTI-MATE OR OF THE
ACTUAL AMOUNT OF SUCH ▇▇▇▇▇▇'S OPERATING EXPENSE CONTRI-BUTION IN A TIMELY
MANNER (INCLUDING FAILURE TO NOTIFY PRIOR TO THE TERMINA-TION DATE OR OTHER
DETERMINATION OF THIS LEASE); OR
(H) REQUIRING THE LESSEE IN ANY NOTICE TO PAY TO THE LESSOR A LUMP SUM IN
RESPECT OF THE LESSEE'S OPERATING EXPENSE CONTRIBUTION FOR A PERIOD THE
COMMENCEMENT OF WHICH PRE-DATES THE DATE OF ANY SUCH NOTICE.
D. SERVICE CHARGES
D.1 LESSEE TO PAY CHARGES LEVIED ON PREMISES
THE LESSEE SHALL FORTHWITH PAY ALL:
(D) COSTS, RATES, TAXES OR IMPOSTS OF ANY NATURE IMPOSED OR SEPARATELY
CHARGED BY ANY LAW OR BY ANY AUTHORITY TO THE PREMISES OR IN RESPECT OF THE
CONDUCT OF THE LESSEE'S BUSINESS IN THE PREMISES; AND
(I) COSTS FOR ALL SERVICES, INCLUDING FOR ALL SOURCES OF ENERGY,
ELECTRICITY, GAS, OIL, WATER AND TELEPHONE, SEPARATELY SUPPLIED, METERED,
CONSUMED OR CONNECTED (AS APPROPRIATE) TO, IN OR ON THE PREMISES.
E. GST
(E) IN THIS CLAUSE "GST" REFERS TO GOODS AND SERVICES TAX UNDER A NEW TAX
SYSTEM (GOODS AND SERVICES TAX) ACT 1999 ("GST ACT") AND THE TERMS USED HAVE THE
MEANINGS AS DEFINED IN THE GST ACT.
(J) IT IS AGREED THAT RENT AND ALL OTHER AMOUNTS AGREED TO BE PAID BY THE
LESSEE TO THE LESSOR, BEING THE CONSIDERATION FOR THE SUPPLY EXPRESSED IN THIS
LEASE, ARE EXCLUSIVE OF GST.
(K) IN RESPECT OF ANY LIABILITY OF THE LESSOR FOR GST IN RESPECT OF THIS
LEASE, AND THE RENEWAL OR EXTENSION OF THIS LEASE, INCLUDING FOR RENT, RATES,
OUTGOINGS, OR ANY CONSIDERATION FOR ANY OTHER TAXABLE SUPPLY, THE LESSEE
COVENANTS TO PAY TO THE LESSOR AT THE SAME TIME AS ANY PAYMENT IS MADE INVOLVING
THE LESSOR IN GST LIABILITY, THE ADDITIONAL AMOUNT OF GST, TOGETHER WITH THE
PAYMENT TO WHICH IT RELATES.
(L) (I) THE LESSEE'S LIABILITY UNDER (C) IS TO REIMBURSE THE FULL AMOUNT
OF GST, DISREGARDING AND EXCLUDING THE LESSOR'S ENTITLEMENT TO INPUT TAX CREDITS
OR OTHER CREDITS OR REIMBURSEMENTS FOR GST.
(II) NOTWITHSTANDING (D)(I), IF THE LESSOR IS ENTITLED TO AN INPUT TAX
CREDIT IN RELATION TO ANY AMOUNT RECOVERABLE FROM THE LESSEE UNDER (C), THE
AMOUNT PAYABLE BY THE LESSEE SHALL BE REDUCED BY THE AMOUNT OF THE INPUT TAX
CREDIT WHICH THE LESSOR HAS RECEIVED OR CLAIMS AND IS ENTITLED TO RECEIVE.
(III) IN RESPECT OF EACH PAYMENT BY THE LESSEE UNDER (C), THE LESSOR AGREES
TO DELIVER TO THE LESSEE, AS REQUIRED UNDER THE GST ACT, TAX INVOICES IN A FORM
WHICH COMPLIES WITH THE GST ACT, AND THE REGULATIONS, TO ENABLE THE LESSEE TO
CLAIM INPUT TAX CREDITS IN RESPECT OF THE TAXABLE SUPPLY.
TABLE OF CONTENTS
SUMMARY OF LEASE PARTICULARS 19
GENERAL LEASE CONDITIONS 21
1. DEFINITIONS AND INTERPRETATION 21
1.1 DEFINITIONS 21
1.2 INTERPRETATION 23
2. EXCLUSION OF STATUTORY PROVISIONS 25
2.1 CONVEYANCING ACT 25
2.2 MORATORIUM 25
3. TERM 25
3.1 TERM OF LEASE 25
3.2 OPTION TO RENEW 25
3.3 HOLDING OVER 26
4. USE OF PREMISES AND BUILDING 26
4.1 PERMITTED USE 26
4.2 NO WARRANTY AS TO USE 26
4.3 COMPLIANCE WITH LAWS AND REQUIREMENTS 26
4.4 OVERLOADING 27
4.5 AIRCONDITIONING AND FIRE ALARM EQUIPMENT 27
4.6 USE OF APPURTENANCES 28
4.7 NOT ERECT AWNING 28
4.8 NOT DAMAGE 28
4.9 NOT ACCUMULATE RUBBISH 28
4.10 NOT THROW ITEMS FROM WINDOWS 28
4.11 SIGNS 28
4.12 INFECTIOUS ILLNESS 28
4.13 FOR SALE/TO LET 29
5. MAINTENANCE REPAIRS ALTERATIONS AND ADDITIONS 29
5.1 REPAIR OBLIGATIONS 29
5.2 LESSOR'S RIGHT OF INSPECTION 29
5.5 ENFORCEMENT OF REPAIR OBLIGATIONS 30
5.6 LESSOR MAY ENTER TO REPAIR 30
5.7 ALTERATIONS TO PREMISES 30
5.8 ALTERATIONS OR ADDITIONS TO LESSOR'S FIXTURES AND SERVICES 31
5.9 NOTICE TO LESSOR OF DAMAGE, ACCIDENT ETC 31
6. ASSIGNMENT AND SUBLETTING 31
6.1 NO DISPOSAL OF ▇▇▇▇▇▇'S INTEREST 31
6.2 ASSIGNMENTS AND SUBLEASES 31
6.3 CORPORATE OWNERSHIP 32
6.4 MORTGAGING LESSEE'S INTEREST IN PREMISES 32
6.5 RESMED LTD AND RELATED BODIES CORPORATE 32
7. INSURANCE AND INDEMNITIES 32
7.1 INSURANCES TO BE TAKEN OUT BY LESSEE 32
7.2 EFFECT ON LESSOR'S INSURANCES 33
7.3 INFLAMMABLE SUBSTANCES 33
7.4 COMPLIANCE WITH FIRE REGULATIONS 33
7.5 EXCLUSION OF LESSOR'S LIABILITY 33
7.6 INDEMNITIES 34
7.7 BUILDING INSURANCE 34
8. DAMAGE AND RESUMPTION 35
8.1 DAMAGE TO OR DESTRUCTION OF BUILDING/PREMISES 35
8.2 LESSOR'S RIGHT TO TERMINATE 36
8.3 RESUMPTION 36
8.4 LIABILITY 36
8.5 DISPUTE 36
8.6 LESSOR NOT OBLIGED TO REINSTATE 36
9. LESSOR'S COVENANTS 37
9.1 QUIET ENJOYMENT 37
9.2 BUILDING CONDITION 37
9.3 FIRE SAFETY AND OTHER REQUIREMENTS 37
10. DEFAULT, TERMINATION 37
10.1 DEFAULT 37
10.2 FORFEITURE OF LEASE 37
10.3 LESSOR MAY RECTIFY 38
10.4 WAIVER 38
10.5 TENDER AFTER DETERMINATION 38
10.6 INTEREST ON OVERDUE MONEYS 38
10.7 DAMAGES FOR BREACH 38
10.8 LESSOR MAY INSTITUTE PROCEEDINGS AT ANY TIME 39
10.9 LESSOR TO MITIGATE DAMAGES 39
10.10 ESSENTIAL TERMS AND DAMAGES 39
11. DETERMINATION OF TERM 39
11.1 LESSEE TO YIELD UP 39
11.2 REMOVAL OF LESSEE'S FITTINGS 40
11.3 LESSEE NOT TO CAUSE DAMAGE 40
11.4 FAILURE BY LESSEE TO REMOVE ▇▇▇▇▇▇'S FITTINGS 40
11.5 LESSEE TO INDEMNIFY AND PAY ▇▇▇▇▇▇'S COSTS 40
11.6 EARLIER BREACHES 40
12. MISCELLANEOUS 40
12.1 NOTICES 40
12.2 COSTS 41
12.3 RESERVATIONS 43
12.4 EASEMENTS 43
13. GUARANTEES AND INDEMNITIES 43
13.1 BANK GUARANTEE 43
13.2 PERSONAL GUARANTEE 43
13.3 INDEMNITY 43
13.4 LIABILITY OF GUARANTOR 43
13.5 GUARANTEE TO ENURE 45
14. REPAIRS MAINTENANCE AND COMPLIANCE WITH LAWS 45
15. ENVIRONMENTAL PROTECTION 45
16. RULES AND REGULATIONS 45
17. DISPUTE RESOLUTION 46
18. LIMITATION OF LIABILITY 46
19. RESPONSIBLE ENTITY'S LIMITATION OF LIABILITY 47
RENT SCHEDULE 49
A. DEFINITIONS 49
B. BASE RENT 50
B.1 PAYMENT OF BASE RENT 50
B.2 PERCENTAGE REVIEW OF BASE RENT 50
C. OPERATING EXPENSES 51
C.1 LESSEE'S OPERATING EXPENSE CONTRIBUTION 51
C.2 LESSOR'S ESTIMATE 51
C.3 PAYMENTS ON ACCOUNT 51
C.4 ADJUSTMENTS OF PAYMENTS 51
C.5 PAYMENT NOTWITHSTANDING TERMINATION 51
C.6 LESSOR'S RIGHTS NOT DIMINISHED 51
D. SERVICE CHARGES 52
D.1 LESSEE TO PAY CHARGES LEVIED ON PREMISES 52
E. GST 52
ANNEXURE "C" TO LEASE BETWEEN
TRUST COMPANY OF AUSTRALIA LIMITED ACN 004 027 749 (LESSOR)
AND RESMED LIMITED ACN 003 765 142 (LESSEE)
DATED THIS 8TH DAY OF ▇▇▇▇ 2002
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SIGNED, SEALED AND DELIVERED BY )
)
/S/▇▇▇▇▇ ▇▇▇▇▇▇▇ )
)
AS ATTORNEY FOR THE LESSOR )
TRUST COMPANY OF AUSTRALIA LIMITED )
UNDER POWER OF ATTORNEY REGISTERED BOOK 4279 NO. 670)
IN THE PRESENCE OF: )
/S/▇▇▇ ▇▇▇▇▇▇
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WITNESS
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NAME (PRINTED)
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WITNESS, ADDRESS
THE COMMON SEAL OF )
MACQUARIE ▇▇▇▇▇▇▇ FUNDS )
MANAGEMENT LIMITED )
ACN 067 796 641 WAS HEREUNTO )
AFFIXED IN ACCORDANCE WITH ITS )
CONSTITUTION IN THE PRESENCE OF: )
/S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ /S/ ▇▇▇▇ ▇▇▇▇▇▇▇
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DIRECTOR / SECRETARY DIRECTOR
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NAME (PRINTED) NAME (PRINTED)
THE COMMON SEAL OF THE LESSEE )
RESMED LIMITED WAS AFFIXED )
IN ACCORDANCE WITH ITS CONSTITUTION )
IN THE PRESENCE OF: )
/S/▇▇▇▇▇ ▇▇▇▇▇▇▇
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DIRECTOR / SECRETARY
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NAME (PRINTED)
▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇.▇▇
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OFF