FORM: 97-07L LEASE
LICENSE: 421X/0856/97
NEW SOUTH WALES
REAL PROPERTY ACT 1900
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Office of State Revenue use only
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(A) PROPERTY LEASED
if appropriate, specify Folio Identifier: 1/635124 part being Level
the part or premises. 0, 00 Xxxxxxxx Xxxxxx, Xx Xxxxxxxx
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(B) LODGED BY
XXXX & XXXX
LTO Box Level 15 Gateway
000 X 0 Xxxxxxxxx Xxxxx, Xxxxxx XXX
0000 DX 214 Sydney (00) 0000.0000
Reference: MPBA:111379784
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(C) LESSOR Legal & General Properties No. 1 Pty Limited
(ACN 000 511 624)
(D) The lessor leases to the lessee the property described above.
Encumbrances (if applicable) 1. 2. 3. 4.
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(E) LESSEE
Mannatech Australia Pty Limited
L (ACN 082 375 862)
(F) TENANCY:
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(G) 1. TERM: Five (5) years
2. COMMENCING DATE: 1 September 1998
3. TERMINATING DATE: 31 August 2003
4. With an OPTION TO RENEW for a period of five (5) years set
out in Clause 17 of Annexure "A".
7. Incorporates the provisions set out in ANNEXURE "A" hereto.
Page 1 OF 2 CHECKED BY (LTO use).............
(H) We certify this dealing correct for the purposes of the Real Property Act
1900.
DATE
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Signed in my presence by the lessor who is personally known to me.
THE COMMON SEAL of LEGAL & )
GENERAL PROPERTIES NO. 1 PTY )
LIMITED was duly affixed in the presence )
of: )
Signature: Signature:
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Name: Name:
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PLEASE PRINT PLEASE PRINT
SECRETARY DIRECTOR
Signed in my presence by the lessor who is personally known to me.
THE COMMON SEAL of MANNATECH )
AUSTRALIA PTY LIMITED was duly )
affixed in the presence of: )
Signature: XXXXX XXXXX XXXXXXXX Signature: XXXXX XXXXX XXXXXXXX
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Name: Xxxxx Xxxxx Xxxxxxxx Name: Xxxxx Xxxxx Xxxxxxxx
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PLEASE PRINT PLEASE PRINT
SECRETARY DIRECTOR
(I) STATUTORY DECLARATION
I solemnly and sincerely declare that: the time for the exercise of
Option to Renew/Purchase in expired lease no. *15* has ended; the
lessee under that lease has not exercised the option; and a variation
of lease extending the term has not been entered into. I make this
solemn declaration conscientiously believing the same to be true and
by virtue of the Oaths Act 1900.
Made and subscribed at____________in the State of________________
on_________19__ in the presence of
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Signature of Witness
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Name of Witness (BLOCK LETTERS)
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Address and Qualification of Witness Signature of Lessor
Page 2 of 2
THIS IS ANNEXURE "A" REFERRED TO IN THE LEASE BETWEEN LEGAL & GENERAL
PROPERTIES NO. 1 PTY LIMITED (AS LESSOR) AND MANNATECH AUSTRALIA PTY LIMITED
(AS LESSEE) DATED THIS ____ DAY OF __________ 1998
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1. INTERPRETATION
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1.1 DEFINITIONS
In this Lease and in any Rules and Regulations made hereunder unless the
contrary intention appears:
"Building" means the Building erected on the Land and known as 00
Xxxxxxxx Xxxxxx, Xx Leonards together with any modifications,
extensions or alterations thereto from time to time and together with
the fixtures, fittings, furnishings, plant, machinery and equipment of
the Lessor therein from time to time and including (but without
affecting the generality hereof) the Common Areas herein referred to
and parking areas.
"Common Areas" means such tea rooms, water closets and toilets in the
Building as are designated by the Lessor for use by the Lessee and its
invitees in common with other persons entitled to use the same and also
but for the purpose only of ingress and egress to and from the Demised
Premises the forecourt, entrance, vestibules, corridors, passages,
stairways and landings in the Building and the escalators and lifts
therein, and all gardens, landscaped land and curtilage.
"Demised Premises" means the premises described as demised premises in
the Lease including any part thereof and the fixtures, fittings,
furnishings, plant, machinery and equipment (if any) of the Lessor now
or hereafter installed therein.
"Institute" means the Australian Institute of Valuers and Land Economists
(Inc) NSW Division.
"Land" means the land described as such in the Lease.
"Lease" means this lease and any annexures appendices and schedules
relating thereto.
"Lessee" means the Lessee named and described as such in the Lease and
includes the successors and permitted assigns of the Lessee and where not
repugnant to the context the servants, invitees and agents of the Lessee
who are in or about the premises at any time at the request of or under
the control or direction of the Lessee or in the course of the conduct of
the Lessee's business.
"Lessee's Works" means all those fit-out items in which the right title
and interest vest in the Lessee and as detailed in the First Schedule to
this Lease.
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"Lessor" means the Lessor named and described as such in the Lease and
includes the successors and assigns of the Lessor and where not repugnant
to the context the servants and agents of the Lessor.
"Reference Schedule" means the Reference Schedule described as such in
the Lease.
"Rules and Regulations" means the Rules and Regulations (if any) of the
Building contained in the Second Appendix hereto and all additions and
variations made thereto by the Lessor from time to time pursuant to
Clause 4.5.
1.2 HEADINGS ETC.
Headings of clauses and marginal notes have been inserted for guidance
only and shall be deemed not to form part of the context.
1.3 SINGULAR, PLURAL ETC
Words importing the singular number shall include the plural and the
masculine gender the feminine or neuter and vice versa and words
importing persons shall include corporations. Any covenant or agreement
on the part of two or more persons shall be deemed to bind them jointly
or severally.
1.4 STATUTES
Reference to a statute or ordinance includes all regulations under and
amendments to that statute or ordinance whether by subsequent statute or
otherwise and a statute or ordinance passed in substitution for the
statute or ordinance referred to or incorporating any of its provisions.
1.5 SATURDAYS SUNDAYS AND PUBLIC HOLIDAYS
Where pursuant to this Lease the day on or by which any act matter or
thing is to be done is a Saturday or a Sunday or a public holiday such
act matter or thing may be done on the next succeeding day which is not
a Saturday or a Sunday or public holiday.
2. EXCLUSION OF IMPLIED COVENANTS AND POWERS
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2.1 The covenants and powers implied in every lease by virtue of Sections 84,
84A and 85 of the Conveyancing Act, 1919 shall not apply to or be implied
in the Lease except insofar as the same or some parts thereof are
included in the covenants herein contained.
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3. RENT AND OUTGOINGS
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3.1 PAYMENT OF RENT AND OUTGOINGS
The Lessee will during the term pay to the Lessor the rent and outgoings
of the Building all as specified, calculated and payable in the manner
provided in the First Appendix hereto.
3.2 TERMINATION OR ABATEMENT ON DAMAGE RESUMPTION ETC.
If the Building shall be resumed or taken for public purposes by any
competent authority, or if the whole or any part of the Building shall be
destroyed or damaged by fire, flood, lightning, xxxxx, xxxxxxx or other
disabling cause so as (in either case) to render the Building
substantially unfit for the use and occupation of the Lessee, or so as
(in either case) to deprive the Lessee of substantial use of the same,
or so as (in the latter case only) to render the reconstruction of the
Building in its previous form impracticable or undesirable in the
opinion of the Lessor then:-
(a) this Lease may be terminated without compensation by either the
Lessor or the Lessee by notice in writing to the other PROVIDED
ALWAYS that the Lessee shall only be entitled to terminate this
Lease if the Lessor shall have failed to rebuild or reinstate the
Building within a reasonable time after notice in writing from the
Lessee having regard to the extent of the damage and the work
required to rebuild or reinstate the Building;
(b) any such termination as aforesaid shall be without prejudice to
the rights of either party in respect of any antecedent breach
matter or thing;
(c) nothing herein contained or implied shall be deemed to impose any
obligation upon the Lessor to rebuild or reinstate the Building or
to make the same fit for use and occupation of the Lessee;
(d) upon the happening of any such damage or destruction as aforesaid
the rent hereby reserved, and any moneys payable by the Lessee to
the Lessor for the cleaning of the Demised Premises, and the
Lessee's proportion of the outgoings of the Building or a
proportionate part thereof according to the nature and extent of
the damage sustained shall xxxxx until the Building shall have
been rebuilt or reinstated or made fit for the occupation and use
of the Lessee or until the Lease shall be terminated pursuant to
the provisions of paragraph (a) hereof as the case may be;
(e) in the event of any dispute arising out of this Clause the same
shall be referred to arbitration under the provisions of the laws
for the time being in force in the State of New South Wales; and
(f) notwithstanding the aforesaid the Lessee shall have no right of
termination and the payment of rent and other moneys shall not
xxxxx
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if the destruction or damage was caused or contributed to by the
Lessee, its servants, agents, contractors or other invitees.
3.3 DAMAGE TO PREMISES
If the Demised Premises shall be damaged or destroyed (in whole or part)
by fire, flood, lighting, xxxxx, xxxxxxx or other disabling cause so
as (in either case) to render the Demised Premises substantially unfit
for the use and occupation of the Lessee, or so as (in either case) to
deprive the Lessee of substantial use of the same and the Lessor shall
not have served notice upon the Lessee within 30 days of the event or
damage or destruction to the effect that the Lessor will reinstate the
Demised Premises within a reasonable time after service of that notice
having regard to the extent of the damage and work required to rebuild
or reinstate the Demised Premises:-
(a) this Lease may be terminated without compensation by either the
Lessor or the Lessee by notice in writing to the other;
(b) any such termination as aforesaid shall be without prejudice to
the rights of either party in respect of any antecedent breach
matter or thing;
(c) nothing herein contained or implied shall be deemed to impose any
obligation upon the Lessor to rebuild or reinstate the Demised
Premises or to make the same fit for use and occupation of the
Lessee;
(d) upon the happening of any such damage or destruction as aforesaid
the rent hereby reserved, and any moneys payable by the Lessee to
the Lessor for the cleaning of the Demised Premises, and the
Lessee's proportion of the outgoings of the Demised Premises or a
proportionate part thereof according to the nature and extent of
the damage sustained shall xxxxx until the Demised Premises shall
have been rebuilt or reinstated or made fit for the occupation and
use of the Lessee or until the Lease shall be terminated pursuant
to the provisions of paragraph (a) hereof as the case may be;
(e) in the event of any dispute arising out of this Clause the same
shall be referred to arbitration under the provisions of the laws
for the time being in force in the State of New South Wales; and
(f) notwithstanding the aforesaid the Lessee shall have no right of
termination and the payment of rent and other moneys shall not
xxxxx if the destruction or damage was caused or contributed to
by the Lessee, its servants, agents, contractors or other invitees
and the Lessor's insurances are irrecoverable as a result of the
act or omission of the Lessee. its servants, agents, contractors
or invitees.
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4. USE OF DEMISED PREMISES. ASSIGNMENT AND SUBLETTING
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4.1 PERMITTED USE
Without the prior written consent of the Lessor the Lessee will not use
the Demised Premises or any part thereof, or permit or suffer the same
to be used, for any purpose other than that set out in Item 4 of the
Reference Schedule and will not use or permit or suffer the same to be
used for any other purpose or for any residential purpose whether
temporary or permanent and any storage space forming part of the
Demised Premises shall not be used for any purpose other than storage.
4.2 ASSIGNMENT & SUBLETTING
(a) The Lessee will not during the continuance of this Lease assign,
transfer, sublet, part with, share the possession of, or grant any
licence affecting, or mortgage, charge or otherwise deal with, or
dispose of the Demised Premises or any part thereof or by any act
or deed procure the same or any part thereof to be assigned,
transferred, sublet unto, shared or put into possession of any
person or persons without the prior consent in writing of the
Lessor which consent shall not be unreasonably withheld or
delayed where:
(i) the Lessee is not in default in the observance and
performance of the covenants on the Lessee's part herein
contained;
(ii) the Lessee proposes to assign, transfer, sublet or grant a
licence to an assignee, transferee, sublessee or licensee
who:
(aa) proves to the reasonable satisfaction of the Lessor
that he is a respectable, responsible and solvent
person capable of adequately carrying on the
permitted use specified in Item 4 of the Reference
Schedule;
(bb) enters into a covenant with the Lessor in the form
required by the Lessor that he will duly perform and
observe the covenants on the Lessee's part herein
contained;
(cc) in the case of an assignee or transferee, furnishes
to the Lessor such guarantee or guarantees of the
performance of his obligations under this Lease as
the Lessor shall require;
(dd) in the case of a subletting or licence, is bound to
pay a current market rental or current market
licence fee but in any event not less than a rental
or licence fee at pro rata to the then annual rent
being paid by the Lessee under this Lease;
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(ee) in the case of a subletting or licence,
enters into a sublease or licence agreement (as the
case may be) in a form acceptable to the Lessor.
(iii) in the case of an assignment or transfer the Lessee enters
into a deed in the form required by the Lessor under which
he releases the Lessor from all claims which the Lessee
then has, or may thereafter have, against the Lessor in
respect of, or in any way arising from this Lease but such
release shall not be required for any claim already
notified in writing to the Lessor by the Lessee.
(iv) The Lessee pays to the Lessor its legal and other costs and
disbursements reasonably incurred in respect of such
assignment, transfer, sublease or grant of licence.
(b) Where the Lessee is a corporation any change in the principal
shareholding altering the effective control of the Lessee shall be
deemed an assignment of this Lease and will require the consent of
the Lessor as aforesaid.
(c) An assignment of this Lease to a related corporation (as defined
in the Corporations Law) shall require the consent of the Lessor
but that consent may not be withheld unless the Lessee shall be in
breach of this Lease at the time of the request for consent to
assign.
4.3 The Lessee will not at any time during the term of this Lease:-
NOXIOUS USES ETC
(a) use, exercise, carry on or permit or suffer to be used, exercised
or carried on, in or upon the Demised Premises, or any part
thereof, any noxious, noisome or offensive act, trade, business,
occupation or calling, or
NUISANCE OR ANNOYANCE
(b) do or omit, or permit or suffer to be done or omitted, any act,
matter or thing whatsoever in upon or about the Demised Premises
or the Building or any part thereof which is or may become an
annoyance, nuisance, grievance or disturbance to any other
occupier or owner of any adjacent premises, or
ANIMALS AND BIRDS
(c) keep any animal or bird in or about the Demised Premises or
Building, or
BURNING OF RUBBISH
(d) burn any rubbish or waste upon the Demised Premises or Building,
or
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AUCTION OR FIRE SALE
(e) conduct or permit to be conducted on the Demised Premises any
auction, bankrupt or fire sale.
4.4 SIGNS ETC.
The Lessee will:
(a) not without the prior approval in writing of the Lessor such
approval shall not be unreasonably withheld or delayed erect,
display, inscribe, paint, affix or exhibit on or to the interior
or the exterior of the Demised Premises or of the Building so as
to be visible from the Common Area any sign, light, embellishment,
advertisement, name, notice or other device, furnishing, ornament
or object;
(b) upon vacating the Demised Premises or immediately prior thereto at
the request of the Lessor remove the same and make good any damage
or disfigurement caused by reason of such erection, displaying,
inscription, painting, affixing, exhibiting or removal thereof;
(c) advise the Lessor prior to the commencement date of this Lease of
the manner in which the Lessee's business is to be advertised on
the Directory Board maintained by the Lessor in the foyer of the
Building and pay on demand the Lessor's reasonable costs in
providing the same in a style and manner consistent with that
reasonably prescribed by the Lessor for the Directory Board.
4.5 RULES AND REGULATIONS
(a) Notwithstanding anything hereinbefore contained the Lessee shall
not enter or use or permit to be entered or used the Demised
Premises the Building or any Common Areas otherwise than in
accordance with the Rules and Regulations.
ALTERATIONS TO RULES AND REGULATIONS
(b) The Lessor reserves the right at any time and from time to time to
amend, cancel, add to or suspend all or any of the Rules and
Regulations for the time being subsisting and to make such other
and further rules and regulations either in lieu of or in
addition as, in the judgment of the Lessor, may be required for
the management, safety, care or cleanliness of the Demised
Premises or of the Building, or for the preservation of good
order therein, and for the convenience of the occupiers and
invitees thereof provided that no amendment or variation to the
Rules and Regulations shall be inconsistent with the rights of
the Lessee as expressed in this Lease. All such amendments and
additions shall bind the Lessee when written notice thereof
shall have been given to the Lessee. If there shall be any
inconsistency between the provisions of
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this Lease and the Rules and Regulations the provisions of this
Lease shall prevail.
NON-ENFORCEMENT OF RULES AND REGULATIONS
(c) The Lessor shall not be liable for any loss or damage howsoever
caused arising out of any non-enforcement of the Rules and
Regulations.
4.6 COMPLIANCE WITH NOTICES ETC.
The Lessee will from time to time forthwith comply with all statutes,
ordinances, proclamations, orders or regulations present or future
affecting or relating to the Demised Premises, or the use thereof and
with all requirements which may be made or notices or orders which may
be given by any governmental, semi-governmental, municipal, health,
licensing or any other authority having jurisdiction or authority in
respect of the Demised Premises or the user thereof, and will keep the
Lessor indemnified in respect of all such matters PROVIDED THAT the
Lessee shall not be liable in respect of any structural alterations
the requirement for which was not caused or contributed to by the
Lessee's use or occupation of the Demised Premises.
4.7 HEAVY MACHINERY
The Lessee will not bring upon the Demised Premises any heavy machinery
or other plant or equipment unless the same is reasonably necessary for
the Lessee's use of the Demised Premises as herein provided and in no
event shall any such machinery, plant or equipment be of such nature
or size as to cause or in the reasonable opinion of the Lessor be
likely to cause any structural or other damage to the floors or walls
or any other parts of the Demised Premises or the Building. Before
bringing any such machinery, plant or equipment upon the Demised
Premises or the Building the Lessee shall inform the Lessor of the
Lessee's intention so to do and the Lessor may direct the routing,
installation and location of all such machinery, plant and equipment
and the Lessee shall observe and comply with all such directions. The
Lessor shall have the right to obtain expert advice from a structural
engineer if it considers such advice to be necessary in relation to
the positioning of such heavy machinery and the Lessee agrees to pay
the costs of obtaining such advice.
4.8 USE OF TOILETS ETC
The Lessee shall not use or permit or suffer to be used the toilets,
sinks, drainage and other plumbing facilities in the Demised Premises
or the Common Areas for any purpose other than those for which they
were constructed or provided, and shall not deposit or permit to be
deposited therein any sweepings rubbish or other matter and any damage
thereto by misuse shall be made good by the Lessee forthwith.
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4.9 XXXXXXX AND VERMIN
The Lessee will take all reasonable precautions to keep the Demised
Premises free of rodents, vermin, cockroaches, paper lice, fleas and
other pests and in the event of the Lessee failing so to do the Lessee
will if and so often as required by the Lessor but at the cost of the
Lessee employ pest exterminators approved by the Lessor.
4.10 INFECTIOUS ILLNESS
The Lessee will in the event of any infectious illness occurring in the
Demised Premises forthwith give notice thereof to the Lessor and to the
proper authorities and at the expense of the Lessee will thoroughly
fumigate and disinfect the Demised Premises to the satisfaction of the
Lessor and such authorities and otherwise comply with their reasonable
and lawful requirements.
4.11 ACCIDENTS, DEFECTS ETC
The Lessee will give to the Lessor prompt notice in writing of any
accident to or defect or want of repair in any services to or fittings
in the Demised Premises and of any circumstances of which the Lessee
is aware or ought reasonably to be aware likely to be or cause any
danger, risk or hazard to the Demised Premises or to the Building or
any person or property therein.
5. ELECTRICITY AND SERVICES
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5.1 XXXXXX'S PAYMENT OF CHARGES
The Lessee shall pay all charges for electricity, gas, water, oil,
telephone and other services to or from the Demised Premises and
separately metered to the Demised Premises.
5.2 DEFAULT IN PAYMENT BY LESSEE
Should the Lessee make default in the payment of any of the aforesaid
charges the Lessor may pay the same and recover the amount so paid as if
the same was rent payable hereunder on the date on which the Lessor pays
the same.
6. AIR-CONDITIONING ELEVATORS AND ESCALATORS
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6.1 USE BY LESSEE
Where any plant, machinery or equipment for heating, cooling or
circulating air (all of which are in this clause included in the
expression "air-conditioning plant") or any one or more lifts or
escalators (hereinafter called "elevators") are provided in the
Building or the Demised Premises by the Lessor:-
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(a) delays or stoppages due to repairs, maintenance, strikes,
accidents or other unavoidable cause excepted, the Lessor shall
endeavor to keep the air-conditioning plant and the elevators
working and reasonably available for the use of the Lessee:
(i) between the hours of 8.00 a.m. and 6.00 p.m. Monday to
Friday inclusive, and
(ii) between such extended hours and/or upon such other days as
the Lessor shall from time to time notify the Lessee, and
(iii) between such extended hours as the Lessee requests at the
Lessee's cost.
NON-INTERFERENCE BY XXXXXX
(b) the Lessee will at all times comply with and observe the
reasonable requirements of the Lessor in relation to the
air-conditioning plant and the elevators and will not do, or
permit or suffer to be done, anything in relation to the same
or otherwise which might interfere with or impair the efficient
operation of such air-conditioning plant and elevators;
FAILURE
(c) should the air-conditioning plant or the elevators fail to
function for any reason, the Lessee shall not by reason of any
such failure be entitled to determine this Lease, nor shall the
Lessee have any right of action or claim for compensation or
damages against the Lessor in respect thereof;
MAINTENANCE
(d) the Lessee shall allow the Lessor and the Lessor's engineers to
enter the Demised Premises at any time to install, remove examine
or repair all or any of the air-conditioning plant or the
elevators provided that in and about such work the Lessor shall
not cause any undue interference to the Lessee in the conduct
of its business in the Demised Premises;
PROHIBITED USE
(e) the Lessee will not use or permit to be used the elevators except
any elevator designated as a goods lift other than for the
conveyance of passengers.
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7. MAINTENANCE, REPAIR, ALTERATIONS, ETC.
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7.1 REPAIR OF DEMISED PREMISES
The Lessee will during the whole of the term and for so long as the
Lessee may remain in possession or otherwise occupation when where
and so often as need shall be maintain, replace, repair and keep the
whole of the Demised Premises in good and substantial repair order
and condition (having regard to their condition at the commencement
of the Lease) damage by explosion, earthquake, aircraft, riot, civil
commotion, fire, flood, lightning, xxxxx, xxxxxxx and reasonable wear
and tear Act of God and war damage only excepted unless any insurance
moneys are irrecoverable through the neglect default or misconduct of
the Lessee its servants agents contractors other invitees and persons
claiming through the Lessee and in such repair order and condition
(except as aforesaid) the Lessee shall peaceably surrender and yield
up to the Lessor the whole of the Demised Premises at the expiration
or sooner determination of the Lease. An inventory of the fixtures,
fittings, furnishings, plant, machinery and equipment of the Lessor
forming part of the Demised Premises at the date of commencement of
the term of the Lease has been signed by the parties by way of
identification and the parties acknowledge that the condition thereof
as at such date is as stated therein.
7.2 The Lessee shall, without affecting the generality of Clause 7.1, at the
Lessee's expense:-
PAINTING AND PAPERING
(a) so often as the Lessor may reasonably require during the term
(which the Lessor may not do at intervals of less than three (3)
years) and in addition during the last year of the term (if in
the Lessor's reasonable opinion it is required and the Lessor
requests it of the Lessee) paint, paper or otherwise appropriately
treat with materials and to standards reasonably determined by
the Lessor such parts of the Demised Premises which have or ought
to have been so treated.
EQUIPMENT OF LESSEE
(b) keep and maintain clean and in good order, repair and condition
all fittings, plant, furnishings and equipment of the Lessee;
DAMAGE TO BUILDING
(c) from time to time make good any breakage, defect or damage to the
Demised Premises, the Building or to any adjoining premises or any
facility or appurtenance thereof occasioned by want of care,
misuse or abuse on the part of the Lessee its servants agents
contractors other invitees and persons claiming through the Lessee
or otherwise occasioned by any breach or default by the Lessee
hereunder or under any Rules or Regulations hereto;
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CARPETS, BLINDS AND CURTAINS
(d) keep such of the standard carpets and floor coverings in the
Demised Premises and such of the blinds and curtains therein (if
any) as are supplied by the Lessor in good and tenantable repair
and condition and the Lessor shall not be liable for any damage
done thereto arising from use in any way inconsistent with the
occupation of the Demised Premises for the use hereinbefore
permitted and/or the neglect, default or misconduct of the Lessee
or of any servant agent contractor or other invitee of the Lessee
or any person claiming through the Lessee.
7.3 ALTERATIONS
The Lessee shall not without the previous consent in writing of the
Lessor make or suffer or permit to be made any alterations or
additions to the Demised Premises (including but without limiting the
generality thereof the partitions and floor coverings) or drive nails
or screws into or in any way damage or deface any ceilings, walls,
partitions, floors, wood, stone, concrete or iron or metal work
thereof.
7.4 PARTITIONING
(a) The Lessee shall use internal partitions within the Demised
Premises only of such standard as to type, quality, colour and
size as the Lessor shall decide and which shall be installed in
the Demised Premises by a builder approved by the Lessor under
the supervision of an Architect approved by the Lessor and the
Lessee covenants not to make any additions or alterations to the
partitions except according to the said standards and supervision
and with the prior approval in writing of the Lessor all such
approvals not to be unreasonably withheld or delayed.
(b) The cost of internal partitions within the Demised Premises and
the cost of installation thereof including all doors, vents,
glass and other items included in or incidental to the same and
the cost of all additional lights and power outlets and switches
and telephone outlets and alterations and/or additions to the
air-conditioning and/or sprinkler installations which may be
required by law and/or by reason of the position of any such
partitions or the particular requirements of the Lessee together
with all architects and other consultants fees incurred in
connection with the same shall be borne by the Lessee.
7.5 LESSOR'S RIGHT TO INSPECT
When and so often as the Lessor shall require and at all reasonable
times of the day the Lessor may by itself and/or those authorised by
it enter the Demised Premises and view the state of repair and
condition thereof, and make such reasonable investigations as it or
they may deem necessary for the purpose of ascertaining whether or not
there has been any breach of any of the covenants and conditions
herein contained or implied and serve upon the Lessee a notice
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in writing of any defect requiring it to repair the same in accordance
with any covenant herein contained.
7.6 LESSOR MAY ENTER TO REPAIR
The Lessor shall have the right for itself and all those authorised by it
upon reasonable notice (except in case of emergency when no notice shall
be required) and at all reasonable times to carry out any works, or make
any repairs, alterations or additions to, and to enter upon all or any
part of the Demised Premises, and to use the same for the purpose of
effecting or carrying out any repairs, alterations or additions or other
work which the Lessor may consider necessary or desirable to any part of
the Building or any buildings adjacent thereto from time to time.
7.7 DEFAULT IN REPAIRING
In default of the Lessee repairing any defect according to reasonable
notice the Lessor by itself and/or those authorised by it may enter the
Demised Premises and execute at all reasonable times all or any of the
required repairs as the Lessor may think fit, and in addition to the
Lessor's other remedies recover from the Lessee the cost of such repairs
as the Lessee ought to have effected, including all sums paid on account
of any insurance, indemnities or compensation under the Worker's
Compensation Acts or otherwise with respect thereto.
7.8 REQUIREMENTS OF PUBLIC AUTHORITIES
Without prejudice to the obligations of the Lessee under this Lease, the
Lessor by itself and all those authorised by it may enter the Demised
Premises at all reasonable times with workmen and others and all
necessary materials and appliances, for the purpose of complying with
the terms of any present or future legislation affecting the Demised
Premises or the Building or of any notice by any authority having
jurisdiction or authority over or in respect of the Demised Premises or
the Building in respect of the destruction of insects, rodents or other
pests or for the carrying out of any repairs, alterations or works
(including the provision of air-conditioning, sprinklers, lighting,
power, telephone and other services to the Lessee and other tenants of
the Building for which purpose the Lessor may from time to time require
access to the service ducts, walls, floors and ceilings and the Demised
Premises) and also for the purpose of exercising the powers and
authorities of the Lessor hereunder.
8. CLEANING
---------------
8.1 CLEANING SERVICES AND RESPONSIBILITIES
Where it is stated in Item 5 in the Reference Schedule that the Lessee is
not responsible for cleaning the Demised Premises:-
14
(a) the same shall be cleaned and garbage removed therefrom by a
contractor engaged by the Lessor;
(b) the Lessor will in no way be responsible to the Lessee for any
loss of or damage to the property of the Lessee by the contractor
so engaged or any employees of such contractor;
(c) the Lessee will use exclusively the cleaning and garbage removal
service provided by the Lessor and will permit reasonable access
for the person or persons engaged by the Lessor to provide the
cleaning (including window cleaning) of the Premises and garbage
removal therefrom;
(d) the Lessee will during the term pay to the Lessor the cleaning
charge specified calculated and payable in the manner provided in
the First Appendix hereto.
8.2 Where it is stated in Item 5 in the Reference Schedule that the Lessee is
responsible for cleaning the Demised Premises:-
(a) the Lessee will at the Lessee's expense cause the Demised Premises
to be kept clean and free from dirt and rubbish in a proper and
workmanlike manner and particularly shall keep all trade waste
trash and garbage in proper receptacles and arrange for the
regular removal thereof from the Demised Premises:
(b) the Lessee will where required by the Lessor engage for the
aforesaid purposes such cleaning and garbage removal service as is
reasonably approved by the Lessor, but the Lessor will in no way
be responsible to the Lessee for any loss of or damage to the
property of the Lessee by the contractor so engaged or their
employees.
8.3 NO RUBBISH
The Lessee will cause the Demised Premises to be kept free from dirt and
rubbish and particularly shall store and keep all trade waste trash and
garbage in proper receptacles.
9. INSURANCES
-----------------
9.1 POLICIES TO BE MAINTAINED
The Lessee at all times during the continuance of this Lease and at its
own expense will effect and keep current in respect of the Demised
Premises the following policies of insurance with a reputable,
respectable and solvent insurance company or office and the Lessee shall
produce such policies and certificates of currency for inspection by the
Lessor as and when required:-
15
(a) where applicable, a policy in the joint names of the Lessee and
the Lessor in such amount (not being less than the full insurable
value) and against such risks as the Lessor may require in respect
of all plate glass windows and doors and display showcases upon
the Demised Premises;
(b) a public risk policy for such amount as the Lessor shall from time
to time notify the Lessee and in the absence of such notification
for an amount not less than ten million dollars ($10,000,000.00)
such policy to specifically include the risks set out in Clause
10;
9.2 INSURANCE NOT TO BE AVOIDED
The Lessee will not at any time do or suffer to be done or allowed
anything upon the Demised Premises or the Building or bring or keep
anything therein whereby any insurance relating to the Demised Premises
or the Building may be rendered void or voidable or whereby the rate of
premium on such insurance shall be liable to be increased and that in
case the Lessor shall approve in writing of any proposal of the Lessee
to increase the risk of fire the Lessee will pay all additional premiums
of insurance on the Building (if any) required on account of the
additional risk caused by the use to which the Demised Premises are put
by the Lessee with the consent aforesaid.
9.3 STORAGE OF INFLAMMABLE MATTER
Without prejudice to the generality of the preceding sub-clause the
Lessee will not (other than in accordance with the specified use of the
Demised Premises approved by the Lessor) store chemicals, acetylene,
alcohol or any solid, liquid or gas of an inflammable volatile or
explosive nature and will not use the same or any of them in the Demised
Premises for any purpose.
9.4 COMPLIANCE WITH FIRE REGULATIONS
The Lessee will comply with insurance, sprinkler and fire alarm
regulations in respect of any partitions which may be erected by or on
behalf of the Lessee upon the Demised Premises and the Lessee will pay
to the Lessor the cost of any alteration to the sprinkler and/or fire
alarm installation which may become necessary by reason of the
non-compliance by the Lessee with such regulations or the requirements
of the insurer or the Insurance Council of Australia.
10. RELEASE AND INDEMNITY
----------------------------
10.1 The Lessee agrees to occupy and use the Demised Premises and the Building
at the risk of the Lessee and hereby releases to the full extent
permitted by law the Lessor, its servants agents and contractors from
all claims and demands of every kind resulting from any accident damage
death or injury occurring therein except where the same is caused by
neglect, default or misconduct on the part of the Lessor or its servants
agents or contractors.
16
10.2 The Lessee will and does hereby indemnify the Lessor and its servants
agents and contractors in the absence of any neglect default or
misconduct on their part from and against all actions, claims, demands,
loss, damages, costs and expenses incurred or suffered by the Lessor or
its servants agents and contractors or for which the Lessor or its
servants agents or contractors may become liable in respect of any
damage to property or injury to any person which may be suffered or
sustained in, upon or near any part of the Demised Premises or the
Building whether in the occupation of the Lessor or of the Lessee or of
any other person, where such damage or injury results from the use of
the Demised Premises or the Building by the Lessee its servants agents
contractors, other invitees and persons claiming through the Lessee.
10.3 Without limiting the generality of Clause 10.2 the Lessee will and does
hereby indemnify the Lessor from and against all actions, claims,
demands, loss, damage, costs and expenses incurred by the Lessor or for
which the Lessor may become liable in respect of or arising from:-
(a) the negligent use, misuse, waste or abuse by the Lessee or any
servant, agent, contractor, other invitee, or person claiming
through the Lessee of the water, gas, electricity, lighting and
other installations in and facilities of the Demised Premises or
the Building or arising from any faulty fitting or fixture of the
Lessee;
(b) overflow or leakage of water (including rain water) in or from the
Demised Premises and caused or contributed to by any act or
omission on the part of the Lessee or other persons as aforesaid;
(c) loss, damage or injury from any cause whatsoever to property or
person caused or contributed to by the use of the Demised Premises
by the Lessee or other persons as aforesaid; and
(d) loss, damage or injury from any cause whatsoever to the Demised
Premises or the Building or to any property or person within or
without the Demised Premises or the Building occasioned or
contributed to by any act, neglect, default or misconduct by the
Lessee or other persons as aforesaid.
11. HEAD LEASE AND OTHER INTERESTS
-------------------------------------
11.1 POWER OF ENTRY
The Lessee will at all times permit the Lessor and any persons having any
estate or interest in the Demised Premises superior to or concurrent with
the Lessor to exercise the Lessor's powers to enter and view the Demised
Premises and to carry out repairs, renovations, maintenance and other
work thereon and otherwise to exercise or perform their lawful rights or
obligations in regard thereto.
17
11.2 BENEFIT OF LESSEE'S COVENANTS
In the event of a person other than the Lessor becoming entitled to
receive the rents payable pursuant to the Lease either by operation of
law or otherwise, the Lessee agrees that such persons shall have the
benefit of all covenants and agreements on the part of the Lessee
hereunder and the Lessee at the cost of the Lessor will enter into such
covenant with such other person in this regard as the Lessor may
reasonably require.
11.3 LESSEE'S INTEREST
The Lessor will not permit the Lessee's estate or interest under the
Lease to be determined as a result of any breach by the Lessor of any
obligation on its part to any person having an estate or interest
superior to that of the Lessor.
11.4 LESSOR'S INTEREST
No act, matter or thing whatsoever shall at any time during the term of
this Lease be done or permitted by the Lessee likely to result in the
determination of the estate or interest of the Lessor in the Demised
Premises or the Building or the Land.
12. LESSOR'S COVENANTS
-------------------------
12.1 QUIET ENJOYMENT
The Lessee, paying the rent payable pursuant to the Lessee and duly and
punctually observing and performing the covenants, obligations and
provisions in the Lease on the part of the Lessee to be observed and
performed shall and may peaceably possess and enjoy the Demised Premises
for the term hereby granted without any interruption or disturbances from
the Lessor or any other person or persons lawfully claiming by, from or
under the Lessor.
12.2 REMOVAL OF XXXXXX'S FIXTURES
(a) The Lessee shall at or prior to the expiration of this Lease take,
remove and carry away from the Demised Premises all fixtures,
fittings, plant, equipment or other articles upon the Demised
Premises in the nature of trade or tenant's fixtures including the
Lessee's Works brought upon the Demised Premises by the Lessee but
the Lessee shall in such removal do no damage to the Demised
Premises or to the Building or shall forthwith make good any
damage which the Lessee may occasion thereto and shall remove all
rubbish and shall leave the Demised Premises in a clean state and
condition.
18
XXXXXX'S FIXTURES NOT TO BE REMOVED
(b) In the event that the Lessee does not remove and carry away such
fixtures, fittings, plant, equipment or other articles at or prior
to the expiration of the Lease, the Lessor may at the expense of
the Lessee remove and dispose of the same and any such fixtures,
fittings, plant, equipment or other articles not so removed by the
Lessee by that date shall become the property of the Lessor.
12.3 The Lessor agrees to notify the Lessee in writing of any matter which the
Lessor considers to be an event of default under this lease provided that
the Lessor will not be required to notify the Lessee in writing if the
rent is unpaid. The notice must contain sufficient detail of the alleged
default to enable the Lessee to rectify the default. The Lessor agrees
to give any such notice within a reasonable time of the Lessor forming
the view that the Lessee is in default under the lease.
12.4 The Lessor shall take reasonable action to repair those matters for
which the Lessor is responsible within a reasonable time having regard
to the nature of the repairs required.
13. DEFAULT, TERMINATION, ETC.
---------------------------------
13.1 DEFAULT
In the event that:
(a) the rent payable pursuant to this Lease or any part thereof shall
be unpaid for the period of fourteen (14) days after any of the
days on which the same ought to have been paid and in accordance
with the covenants for payment herein contained (although no
formal or legal demand shall have been made therefor); or
(b) the Lessee commits, permits or suffers to occur any breach or
default in the due and punctual observance and performance of any
of the covenants, obligations and provisions of this Lease or the
Rules and Regulations; or
(c) the Lessee being a company, an order is made or a resolution is
effectively passed for the winding up of the Lessee (except for
the purpose of reconstruction or amalgamation with the written
consent of the Lessor which consent shall not be unreasonably
withheld); or
(d) the Lessee makes an assignment for the benefit of or enters into
an arrangement or composition with its creditors or stops payment
or is unable to pay its debts within the meaning of the
Corporations Law; or
(e) a receiver is appointed over any property of the Lessee; or
19
(f) execution is levied against the Lessee and not discharged within
thirty (30) days; or
(g) the Lessee, being a natural person, brings his estate within the
operation of any law relating to bankrupts (other than by becoming
a bankrupt), by committing an act of bankruptcy or executing a
deed of arrangement or deed of assignment under the provisions of
the Bankruptcy Act, 1966
THEN but without prejudice to any action or other remedy which the Lessor
has or might or otherwise could have for arrears of rent or breach of
covenant or for damages as a result of any such event, the Lessor at any
time or times thereafter shall have the right to re-enter into and upon
the Demised Premises and repossess and enjoy the same as of its former
estate anything herein contained to the contrary notwithstanding and
furthermore upon such re-entry the Lessor shall have the right to recover
from the Lessee damages as compensation for the loss sustained as a
result of the failure of the Lessee to pay rent and other monies payable
under this Lease and observe and carry out all the other covenants of
this Lease for the period commencing from the date on which the right of
re-entry is exercised and terminating on the date on which, but for the
exercise of the right of re-entry, the term of the Lease would otherwise
expire and upon re-entry the Lessor shall be freed and discharged from
any action, suit, claim or demand by or obligation to the Lessee under
or by virtue of this Lease. Any fixtures, fittings, plant, equipment,
stock-in-trade or other articles of the Lessee in the Demised Premises
shall upon such re-entry become the property of the Lessor.
13.2 LESSOR'S RIGHT TO DAMAGES
In the event that:-
(a) the rent payable pursuant to this Lease or any part thereof shall
be unpaid for the period of fourteen (14) days after any of the
dates on which the same ought to have been paid in accordance
with the covenants for payment herein contained (although no
formal or legal demand shall have been made therefor); or
(b) the Lessee commits, permits or suffers to occur any breach or
default in the due and punctual performance of the covenants
contained in Clauses 3.1 (with respect to outgoings of the
Building), 4.1, 4.2, 4.6, 7.1 and 7.3;
(each such event being referred to in this sub-clause as a "prescribed
default event") the parties hereby acknowledges that the occurrence of
any prescribed default event shall be deemed to be a repudiation of all
of the Lessee's obligations under this Lease THEN but without prejudice
to any other remedy available to the Lessor, the Lessor having exercised
its rights of re-entry as aforesaid shall be entitled to recover from the
Lessee its loss suffered as a consequence of such repudiation provided
that the Lessor may elect to recover such loss as liquidated damages
(not as a penalty) the amount
20
thereof being calculated in accordance with the formula D = (A + B) - C
where:
D is the amount of such liquidated damages.
A is the present value of the amount of the rent and outgoings of the
Demised Premises for which the Lessee is liable in accordance with this
Lease from the date of occurrence of the prescribed default event until
the expiry of the term thereon on the assumption that the Lease was to
continue in force until such expiry but having regard to any provision
of the Lease relating to the calculation of rent and outgoings and
review of rent.
B is the amount of the fees charged by the valuer hereunder in providing
the certificate hereunder.
C is the present value of the amount of the rent expected to be received
from a new tenant in respect of the Demised Premises from the date of
occurrence of the prescribed default event until the expiry of the term
of the Lease taking into account all relevant factors including but not
limited to any rent free period or other inducements usual in the market
for such premises at the time of this calculation.
The amounts required to be ascertained in respect of items A, B and C
shall be determined by a valuer of the Australian Institute of Valuers
and Land Administrators being either a Fellow or Associate of the Valuers
Division (or should such Institute have ceased to exist, of such body or
association as then has substantially the same objects as such Institute)
appointed by the Lessor practising in the state or territory in which
the Demised Premises are situated and such valuer shall act in the
capacity of an expert and not as an arbitrator and his decision shall be
final and binding in all respects.
13.3 LESSOR'S RIGHT TO REMEDY LESSEE'S DEFAULTS
On each and every occasion on which the Lessee omits or neglects to pay
any money or to do or effect anything which the Lessee has in the Lease
covenanted to pay, do or effect then it shall be lawful for but not
obligatory upon the Lessor (and without prejudice to any rights and
powers arising from such default) to pay such money or do or effect such
thing by itself, its architects, contractors, workmen and agents as if
it were the Lessee and for that purpose the Lessor its architects,
contractors and workmen may enter upon the Demised Premises and there
remain for the purpose of doing or effecting any such thing and the
Lessor may recover from the Lessee the amount, expenses and costs of
such payment doing or effecting forthwith.
13.4 INTEREST ON MONEYS OVERDUE
The Lessee will pay to the Lessor interest at the rate equivalent to the
Westpac Banking Corporation Indicator Rate (or if such Rate shall cease
to be published whichever rate having similar purposes is periodically
announced by the Westpac Banking Corporation) plus two percent (2%) per
annum on any
21
moneys due but unpaid for seven (7) days by the Lessee to the Lessor on
any account whatsoever pursuant to the Lease such interest to be
computed from the due date for the payment of the moneys in respect of
which the interest is chargeable until payment of such moneys in full and
to be recoverable in like manner as rent in arrears.
14. GENERAL
--------------
14.1 WAIVER NEGATIVED
(a) The Lessor's failure to take advantage of any default or breach of
covenant on the part of the Lessee shall not be or be construed as
a waiver thereof, nor shall any custom or practice which may grow
up between the parties in the course of administering this Lease
be construed to waive or to lessen the right of the Lessor to
insist upon the performance by the Lessee of any term, covenant or
condition hereof, or to exercise any rights to the Lessor on
account of any such default;
(b) A waiver by the Lessor of a particular breach or default shall not
be deemed to be a waiver of the same or any other subsequent
breach or default;
(c) The subsequent acceptance of rent under the Lease by the Lessor
shall not be deemed to be a waiver of any preceding breach by the
Lessee of any term, covenant or condition of the Lease, other than
the failure of the Lessee to make the particular payment or
payments of rental so accepted, regardless of the Lessor's
knowledge of such preceding breach at the time of acceptance of
such rent.
14.2 NOTICES
Any notice or other document or writing served or given by the Lessor
under this Lease shall be valid and effectual if served or given under
the hand of the Lessor (being an individual) or under the common seal of
the Lessor or under the hand of any director or attorney or manager or
secretary for the time being of the Lessor (being a company).
14.3 SERVICE OF NOTICES
Without prejudice to any other means of giving notice, any notice or
other document or writing required to be served delivered or given
hereunder shall be sufficiently served on or delivered or given to the
Lessee or Covenantor (as the case may be) if served personally or if left
addressed to the Lessee or Covenantor on the Demised Premises or
forwarded to the Lessee or Covenantor by prepaid post to the last known
place of business or abode of the Lessee or Covenantor, and shall be
sufficiently served on the Lessor if served personally or if addressed
to the Lessor and left at or sent by prepaid post to the Lessor's
registered office for the time being or last known place of business or
abode, and a notice of other document or writing sent by post
22
shall be deemed to be given at the time when it ought to be delivered in
ordinary course of post.
14.4 STAMP DUTY COSTS ETC.
The Lessee shall pay all stamp duty and all the Lessor's legal and other
costs charges and expenses incidental to the preparation, completion,
stamping and registration of this Lease, of any assignment, subletting,
surrender or termination (otherwise than by effluxion of time) of this
Lease and the consent of any person whose consent may be required and any
certificate of registration required by the Lessor, and in case of
default by the Lessee in observing or performing any of its covenants in
the Lease contained or implied, the Lessee shall pay to the Lessor all
legal and other costs, charges and expenses for which the Lessor shall
become liable in consequence of or in connection with such default.
14.5 INSPECTION BY PURCHASER OR TENANT
The Lessee shall at all reasonable times permit the Lessor to show the
Demised Premises to prospective purchasers and will at all times within
the six (6) months immediately preceding the termination of the Lease
allow the Lessor to show the Demised Premises to prospective tenants and
to affix and exhibit where the Lessor shall think fit from time to time
the usual "For Sale" and the usual "To Let" notice, and in each case
with the name and address of the Lessor and/or its agents thereon and
the Lessee will not remove any such notice without the prior written
consent of the Lessor.
14.6 CONSENT OF LESSOR
In any case where pursuant to this Lease or to any Rule or Regulation
made hereunder the doing or executing of any act matter or thing by the
Lessee is dependent upon the consent or approval of the Lessor such
consent or approval may be given or withheld by the Lessor in its
absolute uncontrolled discretion unless otherwise herein provided.
14.7 PARTNERSHIP NEGATIVED
Nothing contained in the Lease shall be deemed or construed by the
parties hereto nor by any third party as creating the relationship of
a partnership or of principal and agent or of joint venture between the
parties hereto, it being understood and agreed that neither the method
of computation of rent, nor any acts of the parties hereto shall be
deemed to create any relationship between the parties hereto other than
the relationship of lessor and lessee upon the terms and conditions only
as provided in this Lease.
14.8 EXCLUSION OF IMPLIED TERMS
(a) The covenants, provisions, terms and agreements contained in the
Lease expressly or by statutory implication cover and comprise the
whole of the agreement between the parties and they expressly
agree
23
and declare that no further or other covenants, agreements,
provisions or terms whether in respect of the Demised Premises or
otherwise shall be deemed to be implied herein or to arise between
the parties by way of collateral or other agreement by reason of
any promise, representation, warranty or undertaking given or
made by either party to the other on or prior to the execution of
this Lease and the existence of any such implication or collateral
or other agreement is hereby negatived.
(b) Without prejudice to the foregoing, the Lessee acknowledges that
no warranty or representation has been given by or on behalf of
the Lessor in respect of the suitability of the Demised Premises
or the Building for any business to be carried on therein, or as
to the fixtures furnishings finish plant and machinery and
equipment of or in the Demised Premises or the Building or as to
other businesses to be carried on in the Building otherwise than
in this Lease expressly contained.
14.9 HOLDING OVER
Should the Lessee continue to occupy the Demised Premises beyond the
expiration of the term of this Lease or any further Lease granted
hereunder with the consent of the Lessor it shall do so hereunder on
and subject to the covenants, terms, conditions and provisions hereof as
a monthy tenant at a monthly rental equal to one (1) month's proportion
of the annual rent payable immediately prior to the expiration of this
Lease (subject to the right of the Lessor to review such rent in
accordance with the First Appendix hereto) or such further Lease (as the
case may be) payable monthly in advance such tenancy being determinable
at the will of either the Lessor or the Lessee by one (1) month's notice
in writing to the other expiring on any day of the week.
14.10 POWER OF ATTORNEY
The Lessee hereby irrevocably appoints the Lessor and the Lessor's
nominee or nominees and their substitute or substitutes jointly and
severally to be the true and lawful attorney or attorneys of the Lessee
to act at any time after the power to re-enter herein contained shall
have become exercisable or shall have been exercised (a sufficient proof
whereof shall be the statutory declaration of the Lessor or any officer
of the Lessor duly authorised by the Lessor in that behalf) to execute
and sign an assignment or a surrender of this Lease and to procure the
same to be registered and for this purpose to use the name of the Lessee
and generally to do, execute and perform any act, deed, matter or thing
relative to the premises as fully and effectually as the Lessee could do
in and about the premises and the Lessee hereby covenants to ratify and
confirm all and whatsoever the said attorney or attorneys shall lawfully
do or cause to be done in and about the said premises.
14.11 MORATORIUM
No statute ordinance proclamation order regulation or moratorium present
or future shall apply to this Lease so as to abrogate extinguish impair
diminish
24
xxxxxx delay or otherwise prejudicially affect any rights powers
remedies or discretions given or accruing to the Lessor.
14.12 ALTERATIONS TO BUILDING
The Lessor shall have the right from time to time to improve extend add
to or reduce the Building or any Common Areas or in any manner whatsoever
alter or deal with the Building or any Common Areas (in both cases
excluding the Demised Premises) PROVIDED THAT in exercising such right
the Lessor will endeavor to cause as little inconvenience to the Lessee
as is practicable in the circumstances.
15. OBLIGATION OF COVENANTOR
-------------------------------
15.1 In consideration of the Lessor entering into the Lease at the request of
the Covenantor named in Item 6 in the Reference Schedule the Covenantor
and so as to bind his heirs executors administrators and assigns (or, in
the case of a corporation, its successors and assigns) HEREBY COVENANTS
AND AGREES with the Lessor, its successors and assigns that the
Covenantor will be jointly with the Lessee and severally liable to the
Lessor for the due and punctual payment of all rent and other moneys
reserved by and for the due and punctual performance and observance of
all of the terms covenants and conditions on the part of the Lessee
contained in this Lease and in any renewal thereof and also for the
payment to the Lessor of any moneys due to the Lessor by way of mesne
profits recoverable against the Lessee after termination of the Lease or
any renewal thereof and if there be more than one Covenantor named in
Item 6 in the Reference Schedule then this covenant shall bind them and
their respective executors administrators successors and assigns jointly
and each of them severally and it is hereby acknowledged that the
liability of any Covenantor hereunder shall not be affected by any
matter or thing whatever and in particular but without in any way
limiting the generality of the foregoing shall not be affected by:
(a) the death of the Lessee or of any Covenantor;
(b) the giving of time or the granting of other indulgence to the
Lessee or any Covenantor;
(c) any variation of this Lease;
(d) any agreement between the Lessor and the Lessee and/or any
Covenantor whereby the Lessor gives time to the Lessee and/or
Covenantor (as the case may be) or agrees not to sue the Lessee
and/or Covenantor (as the case may be);
(e) any release of the Lessee or any Covenantor. If any payment made
by the Lessee or any Covenantor shall subsequently be avoided
such payment shall not discharge the liability of the Covenantor
or
25
other Covenantors (as the case may be) in respect thereof and all
parties shall be restored to the position in which they respectively
would have been if such payment had not been made. Notwithstanding
anything express or implied to the contrary and notwithstanding previous
actual service on the Covenantor notice of any fact or thing served on
the Lessee shall be deemed to be service on the Covenantor for all
purposes.
16. BANK GUARANTEE
------------------
16.1 The Lessee shall deliver to the Lessor on or before execution of this
Lease a valid, enforceable and irrevocable bond in a form approved by
the Lessor in the Lessor's favour from a bank holding an Australian
Banking Licence carrying on business in Sydney to secure unconditional
payment by such Bank to the Lessor of the sum specified in Item 8(a) of
the Reference Schedule hereto ("the sum"). The sum secured by the bond
or any part thereof as determined from time to time by the Lessor but
not exceeding in aggregate the sum shall become payable upon failure by
the Lessee to duly and punctually pay rent and other moneys reserved by
this Lease forthwith upon demand in writing from the Lessor without
reference by the Bank to the Lessee and notwithstanding notice from the
Lessee to the Bank not to pay the Lessor any moneys. Notwithstanding
anything express or implied to the contrary, acceptance of the bond or
payment thereunder shall not thereby affect or limit the rights of the
Lessor hereunder of operate as a waiver of the Lessee's failure breach
non-performance or non-observance. Any part of the bond money so paid
and determined by the Lessor to be in excess of the Lessor's loss,
damages and expenses by reason of the Lessee's aforesaid failure,
breach, non-performance or non-observance shall be accounted for to the
Lessee. If upon the Lessee vacating the Demised Premises the bond has
not become payable hereunder then it shall be released to the Bank
provided always that the Lessee has duly and punctually paid all rent and
other moneys reserved by and duly and punctually performed and observed
all of the terms covenants and conditions on the part of the Lessee
contained in this Lease or any renewal hereof.
16.2 On each occasion on which the rental payable under this Lease is
increased, the Lessee shall deliver to the Lessor within fourteen (14)
days of the final determination of such increased rental, a valid,
enforceable and irrevocable bond in the same form and with the same Bank
(or such other bank as the Lessor may reasonably approve) as the bond
previously delivered, to secure unconditional payment by such bank to the
Lessor of the sum equal to the number of months rent and outgoings
specified in Item 8(b) of the Reference Schedule at the revised rental.
16.3 In the event that the Lessor requires the Lessee's bank to make payment
to the Lessor pursuant to the bond and permits the Lessee to remain in
possession of the Demised Premises pursuant to the terms of this Lease
then the Lessee shall, within fourteen (14) days of notification by the
Lessor to the Lessee that such payment by the Bank has been made,
deliver to the Lessor a further bond in the same form as that previously
delivered, to secure Demised Premises pursuant to the terms of this Lease
then the Lessee shall, within fourteen (14)
26
days of notification by the Lessor to the Lessee that such payment by
the Bank has been made, deliver to the Lessor a further bond in the same
form as that previously delivered, to secure unconditional payment by the
issuing Bank of the difference between a sum equal to the number of
months rent and outgoings specified in Item 8(b) of the Reference
Schedule at the then current rental and the balance remaining payable
pursuant to the existing bond so the Lessor holds bonds securing
unconditional payment by the issuing Bank of an aggregate sum equal to
the number of months rent and outgoings specified in Item 8(b) of the
Reference Schedule at the then current rent.
16.4 Upon delivery to the Lessor of any such bond pursuant to the provisions
of Clause 16.2 or 16.3, the provisions of Clause 16.1 shall apply to such
bond.
16.5 If during the term of this Lease the Lessor shall transfer its ownership
in the Building and shall provide a notice to the Lessee requiring the
amendment to the bank bond to reflect the new Lessor THEN the Lessee
shall take all acts necessary to effect the same within fourteen (14)
days of the Lessor serving such notice.
17. OPTION FOR RENEWAL
-------------------------
17.1 If the Lessee desires to have a further lease of the Demised Premises for
the further term or term of years (if any) set out in Item 9 in the
Reference Schedule and shall give to the Lessor not less than three (3)
months nor more than nine (9) months previous notice in writing thereof
(time in both cases being of the essence) and shall neither at the date
of such exercise of option nor at the date of expiry of the immediately
preceding term be in default in material respect of the performance of
the terms covenants and conditions by and on the part of the Lessee
herein contained the Lessor shall grant to the Lessee a Lease of the
premises for such further term of years commencing on the day following
the date of expiry of the immediately preceding term and otherwise
subject to such terms, covenants and conditions as this Lease provided
that:-
(a) in the case of the last of the said further terms, this Clause
shall be excluded,
(b) the annual rent for the first year of the further term shall be
the annual rent payable immediately prior to the date of
commencement of the further term, and
(c) Item 2 of the Reference Schedule shall be amended and the
following dates inserted: 1 September 2004 and 1 September 2006.
27
FIRST APPENDIX
1. RENT
The Lessee will during the term of this Lease pay to the Lessor without
demand from the Lessor and without any deduction whatsoever the annual rent
set out in Item 1 in the Reference Schedule such rent to be paid in advance
by regular and consecutive monthly payments each equal to one-twelfth
(1/12th) of the annual rent on the first day of each month in each year
during the term (except the first and last payments which will be
proportionate) the first being payable on the date of commencement of the
term.
2. RENT REVIEW
(a) In this Clause 2 the expression "review date" means the date set out in
Item 2 of the Reference Schedule:
(i) the date of expiry of each period of years set out in Item 2 in
the Reference Schedule during the term hereof and any further
term in both cases computed from the date of commencement of the
relevant term; or
(ii) the date of holding over, where the Lessee holds over under Clause
14.9.
(b) No earlier than ninety (90) days before each review date and at any time
thereafter the Lessor shall have the option by notice given in writing to
the Lessee to increase the Annual Rent to an amount which would at the
relevant review date be the current market rent of the Premises with the
exception of any improvements effected by the Lessee in the Premises
(having regard to all matters then relevant to the determination of such
rent) and reference shall be had to the aggregate of all premises leased
by the Lessee in the Building at each such review date and the amount so
determined shall subject as hereinafter appearing be the annual Rent
payable by the Lessee as from the review date.
(c) The Lessee within a period of twenty-one (21) days after service of any
such notice may by notice in writing to the Lessor dispute that the
amount set out in the notice referred to in sub-clause (b) of this
Clause 2 is the current market rent of the demised premises.
(d) In the event of any dispute between the Lessor and the lessee as to the
current market rent, then both the Lessor and the Lessee, at their own
cost, each shall appoint a valuer who shall determine the current market
rent. Upon such determination being made each valuer shall advise the
party who appointed him of his determination of the current market rent.
Both the Lessor and the Lessee shall have the right to reject the
determination of the current market rent of the valuer appointed by it.
Each of the valuers shall have practiced in the field of valuation of
rentals for similar premises for not less than 2 years prior to their
appointed and shall be either Fellows or Associates of the Institute (or
should such Institute have ceased to exist, of such body or
28
association as then has substantially the same objects as such
Institute). The valuers so appointed may be employees of either the
Lessor of the Lessee.
The factors to be considered by all valuers assessing the current market
rent of the Premises at the relevant review date are:-
(i) any valuer shall be acting as an expert not as an arbitrator;
(ii) there shall be excluded from such assessment any goodwill
attributable to the Lessee's business and the value of the
Lessee's fixtures and fittings in the Premises and also any
deleterious condition of the Premises if such condition results
from any breach of any terms of this Lease by the Lessee;
(iii) regard shall be had to the terms and conditions of this Lease in
particular to any liability on the part of the Lessee to pay a
contribution to the outgoings of the Building;
(iv) regard shall be had to the annual market rental value of
comparable premises based on a lease between a willing Lessor and
a willing Lessee; and
(v) regard shall be had to improvements or refurbishment of the
Premises effected at the instance and expense of the Lessor.
(e) If either the Lessor of the Lessee rejects the determination of the
current market rent of the valuer appointed by it or if the two valuers
cannot agree as to the current market rent, in both cases within thirty
(30) days after the lessor has by notice in writing to the Lessee
advised the Lessee of the name of the valuer appointed by the Lessor, a
third valuer shall be appointed by the two valuers to determine the
current market rent. the determination of the current market rent by the
third valuer shall be binding upon both the Lessor and the Lessee. The
third valuer shall be either a Fellow or an Associate of the Institute
and shall practice in the State of New South Wales and if possible have
at lease five years experience in the determination of market rents for
properties of similar type and location as the Building
(f) Should the Lessee fail to appoint a valuer as aforesaid within twenty-one
(21) days after the Lessor has by notice in writing to the Lessee advised
the Lessee of the name of the valuer appointed by the Lessor, the current
market rent shall be determined by the Lessor's valuer alone.
(g) If the two valuers appointed as aforesaid do not within fourteen (14)
days of their being called upon by either party to do so, appoint a
third valuer as required under sub-clause (e) of this Clause 2, the
Lessor may request the President or other the principal officer for the
time being of the Institute (or such other body or association as
aforesaid) to appoint such third valuer similarly qualified to determine
the current market rent.
29
(h) Should the third valuer (whether appointed under sub-clause (e) of this
Clause 2) fail to determine the said current market rent within thirty
(30) days of his appointment, the Lessor may request the President or
other principal officer as aforesaid to appoint another valuer similarly
qualified in lieu of the third valuer previously appointed.
(i) Should the amount of the reviewed Annual Rent as aforesaid not be
ascertained before the review date the Lessee shall pending ascertainment
thereof continue to pay the Annual Rent at the rate then applicable but
subject to the review thereof together with seventy five percent (75%) of
the amount by which the Lessor's nomination of the current market rent
specified in the notice given under sub-clause (b) hereof exceeds the
annual rental applicable at the review date and upon the reviewed Annual
Rent being ascertained any necessary adjustment of rent calculated from
the review date shall be paid forthwith by the Lessee to the Lessor, or
by the Lessor to the Lessee, as the case may be. The Lessee shall in
addition pay interest on the amount (if any) by which the reviewed Annual
Rent exceeds the Annual Rent applicable at the review date ("the excess
amount") for the period from the review date to the date of payment of
the excess amount ("the relevant period"), such of the relevant period
at the current Westpac Banking Corporation Indicator Lending Rate.
(j) Notwithstanding the foregoing no determination of the annual rent as
aforesaid shall operate to reduce the annual rent payable by the Lessee
below that payable immediately prior to such determination.
(k) All costs incurred in the engagement and use of any valuer other than the
valuers respectively engaged by the lessor and the Lessee pursuant to
sub-clause (d) hereof, shall be borne in equal shares by the Lessor and
the Lessee.
(l) Any valuers appointed in accordance with the foregoing provisions shall
act in all respects in the capacity of experts and not as arbitrators.
The decision of the third valuer appointed pursuant to subclause (e) or
sub-clause (g) of this Clause 2 shall be final and binding in all
respects.
(m) Time in sub-clause (c), (e), (f), (g) and (h) shall be of the essence in
all respects.
3. OUTGOINGS
LESSEE'S PROPORTIONS
(a) The Lessee will during the term of this Lease pay on demand to the Lessor
in Sydney and without any deduction whatsoever the proportion set out in
Item 3 in the Reference Schedule (hereinafter called "the Lessee's
proportion") of all the rates and taxes and other outgoings of the
Building in the manner hereinafter set out PROVIDED THAT should the
Lessor during the term of this Lease or during the period of any holding
over thereunder complete the erection upon the Land of a building or
buildings in addition to those erected
30
thereon or shall extend the existing buildings, the Lessor shall be
entitled to recalculate the said proportion on the same basis on which
the original proportion was calculated but taking into account the
increased lettable area.
RATES AND TAXES
(b) For the purpose of this Clause:
(i) "rates and taxes" shall mean and include all rates, taxes
(exclusive of any income tax payable by the Lessor in respect of
the Lessor's income), charges, assessments, duties and fees of
any public, municipal, government or semi-government body,
authority or department levied, assessed or charged in respect
of the Building and/or the Land (irrespective of the ownership
thereof);
(ii) all rates and taxes irrespective of the period for which they are
levied, assessed or charged shall be deemed to accrue from day to
day and shall be apportioned in respect of time accordingly;
OTHER OUTGOINGS OF THE BUILDING
(c) For the purposes of this Clause:
(i) "other outgoings of the Building" means all costs, charges,
expenses, fees and other outgoings paid or payable by the Lessor
in managing, supervising, maintaining and keeping secure the
Building and the curtilages thereof provided that notwithstanding
any other provision herein the Lessee shall not be obliged to
contribute to items of a capital or structural nature or
commission on the leasing of premises and in particular, but
without limiting the generality of the foregoing, includes:-
(aa) all premiums payable by the Lessor in respect of insurances
relating to the Building and fixtures, fittings and
appliances therein including, but without limiting the
generality of the foregoing, public risk insurance, workers
compensation insurance and loss of rent insurance;
(bb) the cost of all services supplied to the Building
including, but without limiting the generality of the
foregoing, all charges for electricity, gas, water, oil,
telephone, sewerage and garbage services, save and except
where such costs is the responsibility of a particular
occupier of the Building;
(cc) the cost of all services provided by the Lessor for
occupants of the Building and visitors to the Building,
including but without limiting the generality of the
foregoing, the cost of operating, maintaining and repairing
the air conditioning plant, lifts and escalators and other
services in the Building and Common Areas and except where
the Lessee is liable to pay a cleaning charge
31
pursuant to Clause 8.1 of this Lease the costs of cleaning
of the Common Areas;
(dd) all costs for or in connection with maintenance, renovation
and upkeep of the Building including the painting and
repair of the Common areas but excluding the cost of any
structural work and the cost of any work payment for which
is the responsibility of a particular occupier of the
Building; and
(ee) all costs in connection with the management, control and
security of the Building including, but without limiting
the generality of the foregoing, salaries, wages,
superannuation and payroll tax.
(ii) "year" shall be deemed to mean and relate to any year or part of a
year ending on the date set out in Item 7 in the Reference
Schedule or on such other date as the Lessor shall notify the
Lessee in writing or at the expiration or sooner determination of
this Lease (as the case may require) and in respect of all periods
of less than one (1) year all items of an annual or other periodic
nature comprising other outgoings of the Building shall be
apportioned in respect of time as necessary;
STATEMENT FROM LESSOR
(d) As soon as practicable after the date set out in Item 7 or in the
Reference Schedule or such other date as aforesaid in each year the
Lessor will furnish to the Lessee a statement giving reasonable details
of other outgoings of the Building and indicating the amount of the
Lessee's proportion thereof. Except in the case of manifest error
notified by either party to the other within thirty (30) days of the
service of such statement on the Lessee such statement shall be
conclusive evidence as to the matters stated therein. Within thirty (30)
days after service of such statement on the Lessee, the Lessee will pay
to the Lessor the Lessee's proportion.
ESTIMATES BY XXXXXX
(e) Notwithstanding the provisions of the foregoing sub-clauses the Lessor
may:
(i) where any rate or tax assessment has not issued for the rating or
taxing period current at the date of expiration or sooner
determination of this Lease notify the Lessee of the Lessor's
reasonable estimate of the Lessee's proportion of such rate or tax
for the period from the date of commencement of the rating or
taxing period to the said date of expiration or sooner
determination of the Lease whereupon the Lessee will forthwith pay
to the Lessor such estimated proportion provided always that upon
the issue of the relevant assessment any necessary adjustment
between the estimated and actual proportion of the Lessee shall
be made and any refund to or further payment by the Lessee shall
be allowed or made by or to the Lessor accordingly;
32
(ii) from time to time notify the Lessee of the Lessor's reasonable
estimate of the Lessee's proportion of the other outgoings of the
Building and for any period not exceeding one (1) year in advance
of the estimate whereupon the Lessee will pay to the Lessor
during such period such estimated proportion by equal monthly
instalments in advance on the days fixed for payment or rent
under this Lease provided always that upon computation of such
other outgoings of the Building at the end of the then current
year as aforesaid any necessary adjustment between the estimated
and actual proportion of the Lessee shall be made and any refund
to or further payment by the Lessee shall be allowed or made by
or to the Lessor accordingly.
4. CLEANING CHARGE
(a) The Lessee will (subject as hereinafter provided) during the term
pay to the Lessor in Sydney without demand from the Lessor and
without any deduction whatsoever the basic cleaning charge (if
applicable) set out in Item 5 in the Reference Schedule which
charge relates to the cost of the cleaning of the Premises and
the Lessee's proportion of the costs of the cleaning of Common
Areas, such cleaning charge to be paid by equal monthly
instalments in advance on the days fixed for the payment of rent
under this Lease.
(b) The Lessor shall from time to time be entitled to increase the
basic cleaning charge only if there be an increase in the costs
to the Lessor of cleaning the Demised Premises and the Common
Areas. The Lessor must decrease the basic cleaning charge if
there is a decrease in the cost to the Lessor of cleaning the
Demised Premises and the Common Areas by that amount which is
fair and reasonable in the circumstances.
(c) The Lessor shall notify the Lessee in writing of the amount of any
increase or decrease in the basic cleaning charge and the date
from which such increase shall be operative and the first payment
by the Lessee to the Lessor upon such notice being given shall be
made at the date next following the service of such notice on
which the next monthly instalment of rent is due under this Lease.
33
SECOND APPENDIX
RULES AND REGULATIONS OF THE BUILDING
1. The Lessee shall not in any way obstruct or permit the obstruction of the
pavement entry arcade vestibules corridors passages halls elevators
stairways fire doors and escape doors relating to the Building or use them
or any of them for any other purpose than for ingress and egress.
2. The Lessee shall not cover or obstruct the floors skylights glazed panels
ventilators and windows that reflect or admit light or air into passageways
or into any part of the Building.
3. The Lessee shall not inscribe paint display of affix any sign advertisement
name flagpole flag or notice on any part of the outside or inside of the
Building except with the consent in writing 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. The costs of affixing the Lessee's name and
description on directory boards in main foyer and on the Lessee's floor
shall be paid for by the Lessee.
4. No window blinds window screens or awnings shall be erected without the
approval of the Lessor.
5. Except with the consent in writing of the Lessor no musical instruments
shall be played in or about the Building, but this Rule shall not prohibit
the Lessee from playing background recorded music provided that the volume
is kept at a level which does not cause a nuisance or annoyance to other
Lessees or users of the Building.
6. The Lessee shall not throw anything out of the windows or doors or down the
elevator shafts passages or skylights or into any light areas of the
Building or deposit waste paper or rubbish anywhere except in proper
receptacles or place upon any sill ledge or other like part of the Demised
Premises or Common Areas any article or substance.
7. The Lessee shall not use any method of lighting cooling or heating other
than as prescribed and fixed by the Lessor and under special agreement made
with the Lessor for the purpose and shall not cook within the Demised
Premises except within a designated kitchen area.
8. The Lessee will use or permit to be used for the receipt delivery of other
movement of any goods wares or merchandise or articles of bulk or quantity
only such parts of the Demised Premises and the Common Area and at such
times as the Lessor may from time to time permit and the Lessee will
generally comply with all reasonable requirements of the Lessor in regard
to such matter.
9. The Lessee shall not leave any doors or windows unlocked or unfastened when
the Demised Premises are left unoccupied and the Lessor reserved the right
34
for the Lessors caretaker or other duly authorised person to enter the
Demised Premises and fasten the same if left insecurely fastened.
10. The Lessor will at the expense of the Lessee provide keys for locks on
doors or other openings of the Demised Premises and security cards or keys
and the Lessee will return to the Lessor on the determination of the Lease
all such keys and security cards or keys whether the same have been
supplied by the Lessor or otherwise acquired by the Lessee and shall not
permit the same at any time to come into the possession of any person other
than the Lessee. The Lessee shall not alter the combination of any locks of
the Demised Premises.
11. The Lessee shall not use or permit to be used the Common Areas or any
parking area or any part thereof for any business or commercial purpose for
the display or advertisement of any goods or services nor generally for any
purposes other than a purpose for which the same was intended or provided.
12. No nails, screws or hooks shall be driven into any parts of the Building or
the partitions therein without the Lessor's prior written consent nor shall
any explosive power driven method of fixing articles to ceilings, walls or
floors be used.
13. The Lessor shall be entitled to close the front doors of and any other
entrances to the Building and keep the same closed and locked after the
hour of 6.00 p.m. on weekdays and before the hour of 8.00 a.m. on weekdays
except on Saturdays, Sundays and public holidays when the Lessor may keep
such doors and entrances closed all day provided that the Lessor upon
request by the Lessee shall make arrangements for the Lessee to have access
to the Building at any time outside these hours. If such access is provided
the Lessee shall adhere to all reasonable security precautions set down by
the Lessor from time to time.
14. The Lessor shall provide air-conditioning pursuant to its obligations under
the Lease between the hours of 8.00 a.m. and 6.00 p.m. Should the Lessee
request the provision of air-conditioning outside those hours the Lessor
may at its discretion supply the same and all reasonable costs and expenses
incurred in supplying the same shall be met by the Lessee.
35
REFERENCE SCHEDULE
ITEM 1 ANNUAL RENT
$222,066.00 per annum.
ITEM 2 RENT REVIEW DATES
1 September 2000
1 September 2002
ITEM 3 LESSEE'S PROPORTION OF OUTGOINGS
15.7%
ITEM 4 PERMITTED USE OF PREMISES
Commercial office accommodation, training and meeting facilities and
product showroom.
ITEM 5 CLEANING
(a) The Lessor will provide cleaning.
(b) Basic cleaning charge at commencement of term: $11,428.00.
ITEM 6 COVENANTOR
Nil whilstever the lessee is Mannatech Australia Pty Limited.
ITEM 7 DATE OF EXPIRY OF OUTGOINGS YEAR
31 December.
ITEM 8 BANK GUARANTEE
(a) Initial Sum: $141,020.00.
(b) Number of Months Rent: 6 months.
ITEM 9 OPTION FOR RENEWAL
Five years.
