Exhibit 10.10
DEED made 22 March 2006
BETWEEN: AUSTRALIAN TECHNOLOGY PARK PRECINCT MANAGEMENT LIMITED (ACN 060 969
119) Xxxxx 0 Xxx 0, Xxxxxxxxxx Xxxxxxxx, Xxxxxxxxxx Technology Park,
Eveleigh, in the State of New South Wales ("We")
AND: ENGANA PTY LIMITED (ACN 098 184 582)
Suite 9/G01,G02, G03 and G04, Locomotive Workshop, Australian
Technology Park, Eveleigh, in the State of New South Wales ("You")
RECITALS
A. Australian Technology Park Precinct Management Limited is or is entitled to
be the lease of the Building pursuant to the Head Lease.
B. Australian Technology Park Precinct Management Limited has agreed to grant
to You a licence to enter and use the Premises on the terms specified in
this Deed.
AGREEMENT
1. The parties agree to enter in to this Deed on the terms specified in:
1.1 Annexure "A" - Reference Schedule.
1.2 Annexure "B" - Terms.
1.3 Annexure "C" - Rules.
1.4 Annexure "D" - Special Conditions.
2. The parties have signed this Deed as set out in Annexure "E".
8 February 2005
DECEMBER 2005 EDITION
Annexure "A" to the Deed of Licence between AUSTRALIAN TECHNOLOGY PARK PRECINCT
MANAGEMENT LIMITED (ACN 060 969 119) and ENGANA PTY LIMITED (ACN 098 184 582) of
Xxxxx 0, X00, X00, X00 & X00, Xxxxxxxxxx Workshop, Australian Technology Park,
Eveleigh, dated the 22 day of March, 2006
REFERENCE SCHEDULE
ITEM 1 WE: Australian Technology Park Precinct Management Limited
(Clause 25.1) (ACN 060 969 119)
ITEM 2 YOU: Engana Pty Limited
(Clause 25.1) (ACN 098 184 582)
ITEM 3 BUILDING: Locomotive Workshop, Australian Technology Park, Eveleigh
(Clause 25.1)
ITEM 4 PREMISES: Xxxxx 0/ X00, X00, X00 xxx X00
(Xxxxxx 25.1) (Total Area = 396m(2) as marked in red on the Plan annexed)
ITEM 5 COMMENCING DATE: 00 Xxxxx 0000 XXX XXXXX XXXXX DUTY
(Clause 2) ____-03-2004 ______________
LEASE - GENERAL
ITEM 6 TERMINATING DATE: 14 September 2007 DUTIABLE AMOUNT $______244,982.00
(Clause 2) DUTY $________________.50
ITEM 7 LICENCE FEE: One Hundred Forty Six Thousand Five Hundred and Twenty Dollars
(Clause 5.1) ($146,520.00) per annum gross
ITEM 8 DATES AND AMOUNTS OR 15 March 2007 Fixed Four percent (4%) increase
(Clause 6) PERCENTAGES OF
LICENCE FEE INCREASES:
ITEM 9 LICENCE FEE ADJUSTMENT Licence Fee Adjustment Dates Method
(Clause 6) DATES AND METHOD:
Not Applicable Not Applicable
ITEM 10 PERCENTAGE OF PARK Not Applicable
(Clause 7) OUTGOINGS REFERABLE
TO THE BUILDING:
ITEM 11 OUTGOINGS PERCENTAGE: Not Applicable
(Clause 7.1)
ITEM 12 PERMITTED USE: Research and Development of telecommunications products,
(Clause 14.1) complying at all times with Park Entry Criteria.
ITEM 13 HOURS OF AVAILABILITY 8:00 am to 6:00 pm Monday to Friday, except on public holidays
(Clause 7.7) OF AIRCONDITIONING AND
OTHER SERVICES:
ITEM 14 REDECORATION Repaint within three (3) months before Terminating Date (unless
(Clause ____) REQUIREMENTS AND You have exercised Your option to take up a new Licence) but at
DATES: least five (5) years from the original Commencing Date.
ITEM 15 OUR ADDRESS FOR Xxxxx 0, Xxx 0
(Xxxxxx 00) SERVICE: Locomotive Workshop
Australian Technology Park
Eveleigh XXX 0000
Facsimile: (00) 0000 0000
YOUR ADDRESS FOR Suite 9/G04
SERVICE: Locomotive Workshop
Australian Technology Park
Eveleigh XXX 0000
Facsimile:
GUARANTOR'S ADDRESS Not Applicable
FOR SERVICE: Facsimile: Not Applicable
8 February 2006
DECEMBER 2006 EDITION
Annexure "B" to the Deed of Licence between AUSTRALIAN TECHNOLOGY PARK PRECINCT
MANAGEMENT LIMITED (ACN 060 969 119) and ENGANA PTY LIMITED (ACN 098 184 582) of
Xxxxx 0, X00, X00, X00 & X00, Xxxxxxxxxx Workshop, Australian Technology Park,
Eveleigh, dated the 22 day of March, 2006
TERMS
THIS LICENCE
1. GRANT OF LICENCE
1.1 We grant to You a licence to enter and use the Premises on the following
terms.
1.2 This Licence is personal to You and gives You rights in relation to the
Premises subject to Our rights.
1.3 If a name or ACN is specified in Item 18, this Licence is granted at the
request of the Guarantor.
1.4 If a word starts with a capital letter You should go to the definitions in
clause 25 to see if the word is defined.
1.5 You must
(a) observe and perform Your obligations under this Licence and keep Us
indemnified from and against any liability under the Head Lease to the
extent that You have not performed Your obligations (but not
applicable is the obligation under the Head Lease to pay any rent or
outgoings) [but this does not prevent Us from recovering those mories
through outgoings];
(b) not do any thing which would cause Us to be in breach of the Head
Lease;
(c) permit the lessor under the Head Lease to exercise any right or power
which may be exercised by Us under this Licence; and
(d) give to Us notice of any matters of which You are aware which We are
required under the Head Lease to give notice.
LENGTH OF THIS LICENCE
2. LENGTH OF LICENCE
This Licence starts on the Commencing Date and ends on the Terminating
Date.
3. OPTION FOR A NEW LICENCE
3.1 If there are particulars of a new licence specified in Item 19, clause 3
applies.
3.2 We must grant You a new licence of the Premises if:
(a) You give Us a notice stating that You want a new licence for the term
first specified in Item 19;
(b) We receive that notice not more than six (6) months and not less than
three (3) months before the Terminating Date;
(c) when You give that notice, and on the Terminating Date, You are not in
breach of this Licence; and
(d) You deliver to Us, on or before the Commencing Date of the new
licence, security in connection with Your obligations under the new
licence on the same terms as under this Licence.
8 February 2006
DECEMBER 2005 EDITION
Annexure "C" to the Deed of Licence between AUSTRALIAN TECHNOLOGY PARK PRECINCT
MANAGEMENT LIMITED (ACN 060 969 119) and ENGANA PTY LIMITED (ACN 098 184 582) of
Xxxxx 0, X00, X00, X00 & X00, Xxxxxxxxxx Workshop, Australian Technology Park,
Eveleigh, dated the 22 day of March, 2006
RULES
Each occupier ("Licensee") must comply with the following rules.
In these rules:
"INVITEES" means the Licensee's officers, employees, clients, customers, agents,
contractors and invitees;
"PARKING AREA" means a part of the Park (including a building) designated as a
Parking Area for Motor Vehicles;
"PREMISES" includes any licensed areas which the Licensee is permitted to use.
1. OBSTRUCTION OF ACCESS WAYS
1.1 The Licensee or its invitees must not in any way obstruct or permit the
obstruction of the pavements, driveways, entrances, corridors, lifts,
stairways, fire doors and escape doors relating to the Building or use them
for any purpose other than for access to and agress from their respective
Premises.
2. OBSTRUCTION OF LIGHT OR AIR
2.1 THE Licensee must not cover or obstruct the skylights, glazed panels,
ventilators, airconditionlng ducts and outlets or windows that reflect or
admit light or air into the stairways or corridors or into any part of the
Building, or cover or obstruct any lights or any other means of
illumination in the Building.
3. RECEPTION
3.1 The reception area of the Licensee's Premises must be kept neat and clean
and attended during Normal Business Hours.
3.2 The Licensee must not permit any goods, structures, shelving or fittings to
be visible through the glass of any Common Area corridor or dividing
partition.
4. WINDOWS
4.1 The windows in the Building must not be opened by the Licensee or its
invitees.
4.2 No window blind, window screen, awning or floor covering may be erected or
installed without the prior written approval of the Licensor.
4.3 To ensure the designed performance of the airconditioning equipment the
Licensee must keep in the proper operational position (as determined by the
Licensor from time to time) any window, curtains, blinds, awnings or other
coverings or devices installed or used for the purpose of reflecting or
excluding solar heat or light.
5. SIGNS
5.1 The Licensee must not paint, display or affix any sign, advertisement, name
flagpole, flag or notice on any part of the outside or inside of the
Building except with the prior written consent of the Licensor and then
only of a colour, size and style and in a place or places as are first
approved by the Licensor.
6. DIRECTORY BOARDS
6.1 The cost of affixing the Licensee's name on directory boards in the main
foyer and on each floor must be paid by the Licensee.
8 February 2006
DECEMBER 2005 EDITION
Annexure "D" to the Dead of Licence between AUSTRALIAN TECHNOLOGY PARK PRECINCT
MANAGEMENT LIMITED (ACN 080 969 119) and ENGANA PTY LIMITED (ACN 098 184 582) of
Xxxxx 0, X00, X00, XX0 & XX0, Xxxxxxxxxx Workshop, Australian Technology Park,
Eveleigh, dated the 22 day of March, 2006
SPECIAL CONDITIONS
1. COMPLETION OF LICENCE
We or Our Solicitors must:
(a) complete the Licence by Filling in blanks including, without
limitation, those for the title reference of the land, the
commencement and termination dates; and
(b) do everything necessary to stamp (if not stamped by You) the Licence
and return Your copy to You or Your solicitor.
2. PARTIES BOUND
Both of us are bound by the Licence from and including the Commencement
Date, even though one of Us may not have executed the Licence or it may not
have been completed in accordance with Special Condition 1.
3. FINISHES TO PREMISES PROVIDED BY LICENSOR
At the Commencement Date of the Original Licence, We will provide the
following finishes and services to the Premises:
(a) painted perimeter walls;
(b) forty ounce (40oz) carpet;
(c) suspended ceiling and ________ tiles;
(d) standard office lighting to an average of three hundred and fifty
(350) lux (open spaces Standard);
(e) fire sprinklers in accordance Building Code of Australia (open spaces
Standard);
(f) airconditioning registers (open spaces Standard);
(g) access to hydraulic services all limited distribution points;
(h) access to electrical supply at electrical distribution board for
relevant level;
(i) access to telephone and data cabling at distribution board for
relevant level;
We do not have to supply carpet to the Premises or to the Common Areas of
the Building until we are satisfied works in the vicinity of carpeted areas
have been completed and installed carpet will not be damaged.
4. LICENSEE'S WORKS
(a) Licensee's Works
Your Works will include:
(i) power distribution from electrical distribution board to Premises
and internal distribution within Premises;
(ii) hydraulic services (if required) from ground floor distribution
point to Premises and reticulation within Premises;
(iii) telephone and data cabling from ground floor distribution point
to Premises and reticulation within Premises;
(iv) internal walls and partitions;
(v) additional ceiling finishes to suspended ceilings;
8 February 2006
DECEMBER 2005 EDITION
Page 40
PLAN
SHOWING NET LETTABLE AREAS
BAY 9 (NORTH) - GROUND FLOOR
LOCOMOTIVE WORKSHOP
AUSTRALIAN TECHNOLOGY PARK
CITY OF SOUTH SYDNEY
1:250
[GRAPHIC]
AREAS SHOWN HEREON REPRESENT THE NET LETTABLE
AREAS MEASURED & CALCULATED IN ACCORDANCE WITH
THE P.C.A METHOD FOR THE MEASUREMENT OF BUILDINGS
(1997 REVISION)
X.X. XXXXXX & XXXX
XXXXXXXXX
XXXXX 0, XXXXX 0
00 XXXXXX XXXXXX,
XXXXXX
X.X. XXXXXX & XXXX
-------------------------
XXXXXXXXX
XXX. 00000 DATE 27/2/98
8 February 2006
DECEMBER 2005 EDITION
Annexure "E" to the Deed of Licence between AUSTRALIAN TECHNOLOGY PARK PRECINCT
MANAGEMENT LIMITED (ACN 060 969 119) and ENGANA PTY LIMITED (ACN 098 184 582) of
Xxxxx 0, X00, X00, X00 & X00, Xxxxxxxxxx Workshop, Australian Technology Park,
Eveleigh, Dated the 22 day of March, 2006
/s/ Illegible
-------------------------------- AUSTRALIAN TECHNOLOGY PARK PRECINCT
SIGNATURE OF WITNESS MANAGEMENT LIMITED (ACN 080 969 119) by
its Attorney, Xxxxxx Xxxx, Managing Director,
pursuant to Power of Attorney registered Book
Illegible 4384 No 581
--------------------------------
NAME (PLEASE PRINT)
4143 _____________ St Stonmore /s/ Xxxxxx Xxxx
-------------------------------- ---------------------------------------
ADDRESS XXXXXX XXXX
EXECUTED on behalf of ENGANA PTY LIMITED )
(ACN 098 184 582) by the authorised persons )
whose signatures appear below pursuant to )
section 127 of the Corporation Xxx 0000: )
/s/ Illegible /s/ Illegible
----------------------------------- ----------------------------------
SIGNATURE OF THE AUTHORISED PERSON SIGNATURE OF THE AUTHORISED PERSON
ILLEGIBLE ILLEGIBLE
---------------------------------- ----------------------------------
NAME (PLEASE PRINT) NAME (PLEASE PRINT)
CEO & DIRECTOR DIRECTOR
---------------------------------- ----------------------------------
OFFICE HELD OFFICE HELD
8 February 2006
DECEMBER 2005 EDITION
TABLE OF CONTENTS
1. GRANT OF LICENCE..................................................... 4
2. LENGTH OF LICENCE.................................................... 4
3. OPTION FOR A NEW LICENCE............................................. 4
4. HOLDING OVER......................................................... 5
5. LICENCE FEE.......................................................... 5
6. LICENCE FEE ADJUSTMENT............................................... 6
6.5 MARKET LICENCE FEE ADJUSTMENT.................................. 6
6.6 NOTICE......................................................... 6
6.7 VALUER TO SETTLE IF DISPUTE.................................... 6
6.8 SUBMISSIONS.................................................... 6
6.9 WRITTEN SUBMISSIONS............................................ 7
6.10 CONFIDENTIALITY................................................ 7
6.11 VALUER'S CRITERIA.............................................. 7
6.12 PAYMENT OF REVIEWED LICENCE FEE................................ 7
7. OUTGOINGS............................................................ 7
7.3 PAYMENTS ON ACCOUNT OF YOUR SHARE.............................. 7
7.4 NOTICE OF ACTUAL OUTGOINGS..................................... 8
7.5 ADJUSTMENTS.................................................... 8
7.6 VARIATIONS..................................................... 8
7.7 SERVICES OUTSIDE HOURS......................................... 8
7.8 CLEANING CHARGE................................................ 8
7.9 ATP COMMUNITY - CORE FACILITIES................................ 8
7.10 ADDITIONAL FACILITIES.......................................... 8
8. COSTS CHARGES AND EXPENSES........................................... 9
9. BANK GUARANTEE....................................................... 9
10. SECURITY DEPOSIT..................................................... 9
11. PAYMENT REQUIREMENTS................................................. 9
11.6 GOODS AND SERVICES TAX......................................... 10
11.7 INTEREST ON OVERDUE MONEY...................................... 10
12. INSURANCES........................................................... 11
13. EXCLUSION OF WARRANTIES, INDEMNITIES AND RELEASES.................... 11
13.1 NO REPRESENTATION OR WARRANTY.................................. 11
13.2 YOU ACKNOWLEDGE BUILDING AND PREMISES MAY CONTAIN HAZARDS...... 12
13.3 HERITAGE AND OTHER DISCLOSURES................................. 12
13.4 YOUR LIABILITY................................................. 12
13.5 YOU RELEASE US................................................. 12
13.6 HEAD LEASE INDEMNITY........................................... 13
14. USE AND CARRYING ON BUSINESS......................................... 13
15. YOUR ADDITIONAL OBLIGATIONS.......................................... 13
15.3 LICENSEE'S ENVIRONMENTAL WARRANTY.............................. 15
16. REPAIR, REDECORATION AND YOUR WORKS.................................. 15
16.1 OUR APPROVAL................................................... 15
16.2 YOUR WORKS..................................................... 16
16.3 FIRE REGULATIONS............................................... 16
16.4 AIRCONDITIONING................................................ 16
16.5 REPAIR OF ITEMS................................................ 16
16.6 REPAIR, REPLACE AND REDECORATE................................. 16
16.7 STRUCTURAL WORK................................................ 16
17. TRANSFER AND OTHER DEALINGS.......................................... 17
17.1 TRANSFER....................................................... 17
17.2 CHANGE IN YOUR CONTROL IF YOU ARE A COMPANY.................... 17
17.3 CHANGE IN YOUR CONTROL IF YOU ARE A COMPANY, WITH OUR
APPROVAL....................................................... 17
17.4 OTHER DEALINGS................................................. 17
17.5 SECURITIES..................................................... 17
2 June 2006
DECEMBER 2005 EDITION
ii
18. OUR ADDITIONAL OBLIQATIONS AND RIGHTS................................ 17
18.1 QUIET ENJOYMENT................................................ 17
18.2 CONSENTS....................................................... 18
18.3 TO ENTER....................................................... 18
18.4 INSPECTIONS.................................................... 18
18.5 ACCESS TO BUILDING............................................. 18
18.6 ENFORCING RIGHTS AND NO EXCLUSIVE BUSINESS..................... 18
18.7 TO DEAL WITH THE LAND.......................................... 18
18.8 CHANGE OF OWNER................................................ 18
18.9 WE MAY RECTIFY................................................. 19
18.10 AGENTS......................................................... 19
18.11 COMMON AREAS................................................... 19
18.12 FACILITIES..................................................... 19
18.13 RULES.......................................................... 19
18.14 CAR PARKING.................................................... 19
19. OBLIGATIONS AT THE END OF THIS LICENCE............................... 19
19.1 YOU MUST VACATE................................................ 19
19.2 REMOVAL OF YOUR PROPERTY....................................... 19
19.3 YOUR PROPERTY NOT REMOVED...................................... 20
19.4 REINSTATEMENT.................................................. 20
20. DEFAULT.............................................................. 20
20.1 ESSENTIAL TERMS................................................ 20
20.2 OUR RIGHT TO END THIS LICENCE.................................. 20
21. DAMAGE TO BUILDING OR PREMISES AND RESUMPTION........................ 21
21.3 ABATEMENT OF PAYMENTS.......................................... 21
21.4 RESUMPTION..................................................... 21
22. RELOCATION........................................................... 21
22.1 RELOCATION NOTICE.............................................. 21
22.2 REJECTION OR ACCEPTANCE........................................ 21
22.3 NEW LICENCE.................................................... 22
22.4 REASONABLE COSTS TO BE PAID BY US.............................. 22
22.5 STAMP DUTY REFUND.............................................. 22
22.6 RIGHTS AND OBLIGATIONS......................................... 22
22.7 SURRENDER OF LICENCE........................................... 22
22.8 RELEASE........................................................ 22
23. DEMOLITION........................................................... 22
23.1 TERMINATION NOTICE............................................. 22
23.2 YOU CAN END LICENCE............................................ 22
24. GUARANTEE AND INDEMNITY.............................................. 23
24.1 CONSIDERATION.................................................. 23
24.2 GUARANTEE...................................................... 23
24.3 INDEMNITY...................................................... 23
24.4 INTEREST....................................................... 23
24.5 ENFORCEMENT OF RIGHTS.......................................... 23
24.6 CONTINUING SECURITY............................................ 23
24.7 GUARANTEE NOT AFFECTED......................................... 23
24.8 SUSPENSION OF GUARANTOR'S RIGHTS............................... 23
24.9 REINSTATEMENT OF GUARANTEE..................................... 24
24.10 COST........................................................... 24
25. MEANING OF WORDS IN LICENCE.......................................... 24
26. NOTICES AND APPROVALS................................................ 31
27. MISCELLANEOUS........................................................ 31
27.1 WAIVER AND VARIATION........................................... 31
27.2 APPROVALS...................................................... 32
27.3 PRIOR BREACHES................................................. 32
27.4 CAVEATS........................................................ 32
27.5 WARRANTIES AND UNDERTAKINGS.................................... 32
27.6 COUNTERPARTS................................................... 32
27.7 SEVERABILITY................................................... 32
27.8 GOVERNING LAW.................................................. 32
27.9 DEED........................................................... 32
2 June 2006
DECEMBER 2005 EDITION
DEED made
BETWEEN: AUSTRALIAN TECHNOLOGY PARK PRECINCT MANAGEMENT LIMITED (ACN 060 969
119) Xxxxx 0 Xxx 0, Xxxxxxxxxx Xxxxxxxx, Xxxxxxxxxx Technology Park,
Eveleigh, in the STATE of
New South Wales ("We")
AND: ENGANA PTY LIMITED (ACN 098 184 582)
Suite 9/G01, G02, G03 and G04, Lomotive Workshop, Australian
Technology Park, Eveleigh, in the State of
New South Wales ("You")
RECITALS
A. Australian Technology Park Precinct Management Limited is or is entitled to
be the lessee of the Building pursuant to the Head Lease.
B. Australian Technology Park Precinct Management Limited has agreed to grant
to You a license to enter and use the Premises on the terms specified in
this Deed.
AGREEMENT
1. The parties agree to enter in to this Deed on the terms specified in:
1.1 Annexure "A" - Reference Schedule.
1.2 Annexure "B" - Terms.
1.3 Annexure "C" - Rules.
1.4 Annexure "D" - Special Conditions.
2. The parties have signed this Deed as set out in Annexure "E".
2 June 2006
DECEMBER 2006 EDITION
Annexure "A" to the Deed of License between AUSTRALIAN TECHNOLOGY PARK PRECINCT
MANAGEMENT LIMITED (ACN 060 969 119) and ENGANA PTY LIMITED (ACN 098 184 582) of
Suite 9, G01 & G02 G03 and G04, Lomotive Workshop, Australian Technology Park,
Eveleigh, dated the _______________ day of June, 2006
REFERENCE SCHEDULE
ITEM 1 WE: Australian Technology Park Precinct
(Clause 25.1) Mnangement Limited (ACN 060 969 119)
ITEM 2 YOU: Engana Pty Limited
(Clause 25.1) (ACN 096 184 582)
ITEM 3 BUILDING: Locomotive Workshop, Australian
(Clause 25.1) Technology Park, Eveleigh
ITEM 4 PREMISES: Xxxxx 0/ X00, X00 X00 xxx X00
(Xxxxxx 25.1) (Total Area = 396m(2) as marked in red
on the Plan annexed)
ITEM 5 COMMENCING DATE: 15 March 2006
(Clause 2)
ITEM 6 TERMINATING DATE: 14 September 2007
(Clause 2)
ITEM 7 LICENCE FEE: One Hundered Forty Six Thousand Five
(Clause 5.1) Hundred and Twenty Dollars
($146,520.00) per annum gross
ITEM 8 DATES AND AMOUNTS OR 15 March 2007 Fixed Four percent (4%)
(Clause 6) PERCENTAGES OF LICENCE increase
FEE INCREASES:
ITEM 9 LICENCE FEE ADJUSTMENT Licence Fee Adjustment Dates Method
(Clause 6) DATES AND METHOD: ---------------------------- ------
Not Applicable Not Applicable
ITEM 10 PERCENTAGE OF PARK Not Applicable
(Clause 7) OUTGOING REFERABLE TO
BUILDING:
ITEM 11 OUTGOING PERCENTAGE: Not Applicable
(Clause 7.1)
ITEM 12 PERMITTED USE: Research and Developement of
(Clause 14.1) telecommunications products, complying
at all times with Park Entry Criteria.
ITEM 13 HOURS OF AVAILABILITY 8:00 am to 6:00 pm Monday to Friday,
(Clause 7.7) OF AIRCONDITIONING AND except on public holidays.
OTHER SERVICES:
ITEM 14 REDECORATION Repaint within three (3) months before
(Clause 16.6) REQUIREMENTS AND DATES Terminating Date (unless You have
exercised Your option to take up a new
Licence) but at least five (5) years
from the original Commencing Date.
ITEM 15 OUR ADDRESS FOR Xxxxx 0, Xxx 0
(Xxxxxx 00) SERVICE: Locomotive Workshop
Australian Technology Park
Eveleigh XXX 0000
Facsimile: (00) 0000 0000
YOUR ADDRESS FOR Suite 9/G04
SERVICE: Locomotive Workshop
Australian Technology Park
Eveleigh XXX 0000
Facsimile:
GUARANTORS'S ADDRESS Not Applicable
FOR SERVICE: Facsimile: Not Applicable
2 June 2006
DECEMBER 2006 EDITION
Page 3
ITEM 16 BANK GUARANTEE: Three (3) months' Licence Fee plus GST,
(Clause 9) but nil if Security Deposit held
(Estimated for the 1st year at
$40,293.00)
ITEM 17 SECURITY DEPOSIT: Three (3) months' Licence Fee plus GST,
(Clause 10) but nil if bank Guarantee held
(Estimated for the 1st year at
$40,293.00)
ITEM 18 GUARANTOR: Not Applicable
(Clause 24)
ITEM 19 PARTICULARS OF NEW
(Clause 3) LICENCE:
TERM: One (1) Year and Six (6) Months
ITEM 5 COMMENCING
DATE: 15 September 2007
ITEM 6 TERMINATING
DATE: 14 March 2009
ITEM 7 LICENCE FEE: One Hundred Fifty Two Thousand Three
Hundred and Eighty-Eight Dollars and
Eighty Cents ($152,380.80) per annum
gross
ITEM 8 DATES AND 15 March 2008 Fixed Four percent (4%)
AMOUNTS OR increase
PERCENTAGES OF
LICENCE FEE
INCREASES:
ITEM 9 LICENCE FEE Licence Fee Adjustment Dates Method
ADJUSTMENT DATES ---------------------------- ------
AND METHOD: Not Applicable Not Applicable
ITEM 14 REDECORATION Repaint within three (3) months before
REQUIREMENTS AND Terminating Date (unless You have
DATES: exercised Your option to take up a new
Licence) but at least five (5) years
from the original Commencing Date.
ITEM 16 BANK Three (3) months' Licence Fee plus GST,
GUARANTEE: but nil if Security Deposit held
(Estimated for the 1st year at
$41,905.00)
ITEM 17 SECURITY Three (3) months' Licence Fee plus GST,
DEPOSIT: but nil if Bank Guarantee held
(Estimated for the 1st year at
$41,905.00)
2 June 2006
DECEMBER 2006 EDITION
Annexure "B" to the Deed of Licence between AUSTRALIAN TECHNOLOGY PARK PRECINCT
MANAGEMENT LIMITED (ACN 060 969 119) and ENGANA PTY LIMITED (ACN 098 184 582) of
Xxxxx 0, X00, X00, X00 & X00, Xxxxxxxxxx Workshop, Australian Technology Park,
Eveleigh, dated the _____________ day of June, 2006
TERMS
THIS LICENCE
1. GRANT OF LICENCE
1.1 We grant to You a licence to enter and use the Premises on the following
terms.
1.2 This Licence is personal to You and gives You rights in relation to the
Premises subject to Our rights.
1.3 If a name or ACN is specified in Item 18, this Licence is granted at the
request of the Guarantor.
1.4 If a word starts with a capital letter You should go to the definitions in
clause 25 to see if the word is defined.
1.5 You must
(a) observe and perform Your obligations under this Licence and keep Us
indemnified from and against any liability under the Head Lease to the
extent that You have not performed Your obligations (but not
applicable is the obligation under the Head Lease to pay any rent or
outgoings) [but this does not prevent Us from recovering those monies
through outgoings];
(b) not do any thing which would cause Us to be in breach of the Head
Lease;
(c) permit the lessor under the Head Lease to exercise any right or power
which may be exercised by Us under this Licence; and
(d) give to Us notice of any matters of which You are aware which We are
required under the Head Lease to give notice.
LENGTH OF THIS LICENCE
2. LENGTH OF LICENCE
This Licence starts on the Commencing Date and ends on the Terminating
Date.
3. OPTION FOR A NEW LICENCE
3.1 If there are particulars of a new licence specified In Item 19. clause 3
applies.
3.2 We must grant You a new licence of the Premises if:
(a) You give Us a notice stating that You want a new licence for the term
first specified in Item 19;
(b) We receive that notice not more than six (6) months and not less than
three (3) months before the Terminating Date;
(c) when You give that notice, and on the Terminating Date, You are not in
breach of this Licence; and
(d) You deliver to Us, on or before the Commencing Date of the new
licence, security in connection with Your obligations under the new
licence on the same terms as under this Licence.
2 June 2006
DECEMBER 2005 EDITION
Page 5
3.3 (a) Within one (1) month after You give Us notice under clause 3.2(a) We
must give to You a notice specifying the amount of the Licence Fee
which will be payable on the Commencing Date of the new licence. The
amount will be:
(i) the Licence Fee specified in item 19; or
(ii) the current market Licence Fee if Item 19 specifies "market".
(b) If Item 19 specifies "market then within one (1) month after We give
You notice under clause 3.3(a) You may give Us a notice disputing the
amount of the Licence Fee we have nominated. In that case the Licence
Fee will be determined by a Valuer pursuant to clauses 6.6 to 6.12(a)
inclusive on the basis that the first day of the new licence is a
Licence Fee Adjustment Date.
(c) If You do not give Us notice under clause 3.3(b) You must accept the
new licence in accordance with clause 3.4.
3.4 The new licence is to be similar to this Licence except that:
(a) if the particulars of the new licence are the only particulars
specified In Item 19, clause 3 and Item 19 are deleted;
(b) if particulars of more than one new licence are specified in Item 19
the particulars of the first new licence specified are deleted from
Item 19;
(c) the Commencing Date, the length of the licence, the Terminating Date,
the dates and amounts or percentages of set Licence Fee increases, the
Licence Fee Adjustment Dates and method and the amount of the bank
guarantee and security deposit are to be those first specified in Item
19;
(d) the licence fee on the Commencing Date of the new licence is to be the
fee specified in the notice under clause 3.3(a) or the current market
Licence Fee if You have given Us a notice under clause 3.3(b), if it
applies;
(e) the new licence must reflect any variations to this Licence during the
term of this Licence and Our standard licence terms for the Building
at the Commencing Date of the new licence.
4. HOLDING OVER
4.1 IF You continue to enter and use the Premises after the Terminating Date
with Our approval otherwise than under clause 3 You do so under a monthly
licence commencing on the day after the Terminating Date;
(a) which either of us may terminate on one (1) month's notice ending on
any date; and
(b) at a licence fee which is one twelfth (1/12) of the Licence Fee
increased by ten per centum (10%) payable in advance.
4.2 Subject to clause 4.1 the monthly licence is on the same terms as this
Licence including payment of outgoings except for those charges which:
(a) are necessary to make this Licence appropriate for a monthly licence
(but any bank guarantee or security required under this Licence may
not be reduced); or
(b) We require as a condition of giving Our approval for Your continued
licence.
WHAT YOU MUST PAY US
5. LICENCE FEE
5.1 You must pay the Licence Fee by equal monthly instalments in advance on
each Licence Fee Day.
5.2 If an instalment is for a period of less than one (1) month that instalment
is the Licence Fee divided by three hundred and sixty-five (365) multiplied
by the number of days in that period.
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5.3 (a) You must pay the Licence Fee and all monies due to Us by authorising
Us to debit your bank account using the Direct Debit System
administered by Australian Payments Clearing Association.
(b) For Licence Fee and Outgoings we will debit your bank account on the
Licence Fee Day or the next business day after the relevant Licence
Fee Day ("ACCESS DATE").
(c) On each Access Date we will also debit your bank account for all other
monies due to us which we have billed you prior to the Access Date and
which have not yet been paid.
(d) Whenever we have debited your bank account using the Direct Debit
System we will give you particulars of those debits to your bank
account.
5.4 If We do not use the Direct Debit System then clause 11.1 applies.
6. LICENCE FEE ADJUSTMENT
6.1 If Licence Fee Adjustment Dates and Method are specified in Item 9, clause
6 applies.
6.2 If dates and amounts or percentages are specified in Item 8, the Licence
Fee increases from and including each of those dates by the amount or the
percentage specified for the relevant Licence Fee Adjustment Date.
6.3 Where Item 9 specifies Consumer Price Index, the Licence Fee from and
including each CPI Adjustment Date is the Licence Fee immediately before
that CPI Adjustment Date multiplied by the Current CPI and divided by the
Previous CPI.
6.4 On the first Licence Fee Day after the information is available to make the
calculation in clause 6.3, You must pay the difference between what You
have paid on account of Licence Fee and the licence fee for the period from
and including the relevant CPI Adjustment Date to but excluding that
Licence Fee Day.
6.5 MARKET LICENCE FEE ADJUSTMENT
Where Item 9 specifies "market" the Licence Fee from and including each
Licence Fee Adjustment Date is the current market Licence Fee determined in
accordance with clauses 6.6 to 6.12 following.
6.6 NOTICE
We will notify You of the amount that We consider is the current market
Licence Fee within three (3) months before and three (3) months after a
Licence Fee Adjustment Date. If We do not give a notice, the Licence Fee
will be recalculated under clause 6.3.
6.7 VALUER TO SETTLE IF DISPUTE
(a) If You and We have not agreed on the current market Licence Fee within
thirty (30) days after service of the notice under clause 6.6, then
there is a dispute about the current market Licence Fee. The dispute
must be referred for determination by a Valuer to be nominated by the
President of the Australian Institute at the request of either party.
(b) The appointed Valuer must determine the current market Licence Fee at
the particular Licence Fee Adjustment Date acting as an expert and not
as an arbitrator and give a written determination with reasons within
sixty (60) days of his appointment.
(c) The Valuer's determination is final and binding on You and Us.
(d) The Valuer's costs must be paid by You and Us equally. Either party
may pay the Valuer's costs and recover one half of the amount paid
from the other party.
6.8 SUBMISSIONS
(a) A Valuer who accepts appointment under clause 6.7 may confer with Us
and You and may require either party to supply information relevant to
the determination.
(b) Any request for information must be complied with promptly by the
party to whom it is directed, who must provide a copy of that
information to the other party.
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6.9 WRITTEN SUBMISSIONS
(a) Each of us may make written submission or supply other relevant
information to the Valuer in relation to the current market Licence
Fee within fourteen (14) days of the Valuer's appointment. A party
making a written submission or supplying other relevant information
must at the same time make a copy of it available to the other party.
(b) The Valuer must not determine the current market Licence Fee until the
expiration of that period of fourteen (14) days.
6.10 CONFIDENTIALITY
All information given to the Valuer is confidential and must not be used
other than for the purposes of this clause 6.
6.11 VALUER'S CRITERIA
In determining the current market Licence Fee as at a License Fee
Adjustment Date, the Valuer may take into account any matters the Valuer
considers relevant but, in making the determination, the Valuer must:
(a) determine the current market Licence Fee:
(i) on the basis of the licence fee that would be reasonably expected
to be paid for the Premises if they were unoccupied and offered
for licence for the use for which the Premises may be used under
this Licence or a substantially similar use; and
(ii) on the basis of Licence Fee and Outgoings payable by You under
the Licence; and
(iii) having regard to the licence fee value of comparable premises in
comparable locations;
(b) not have regard to:
(i) the value of the goodwill of Your business or Your Property; and
(ii) any deleterious condition of the Premises if such condition
results from any work carried out on the Premises by You or any
breach of any term of this Licence by You; and
(c) receive submissions from either of us about the market licence fee of
the Premises and may have regard to those; and
(d) make no reduction on account of any period of rent abatement or any
reduction or concession otherwise required or likely to be required to
secure a licensee of the Premises (such as the cost and value of any
fitout undertaken by Us) or any actual period of rent abatement,
reduction or concession granted to You to secure Your occupancy the
subject of this Licence; and
(e) assume the Premises have been reinstated, if they are damaged or
destroyed.
6.12 PAYMENT OF REVIEWED LICENCE FEE
(a) (i) Until the Valuer has determined the Licence Fee, You must
continue to pay the Licence Fee payable at the date of the notice
given to You under clause 6.
(ii) Any variation in Licence Fee under this clause 6 takes effect on
the Licence Fee Adjustment Date, and within fourteen (14) days of
the determination You must pay any shortfall.
(b) No review of licence fee under this clause 6 shall reduce the Licence
Fee payable immediately prior to the Licence Fee Adjustment Date.
7. OUTGOINGS
7.1 If an Outgoings percentage is specified in Item 11 clauses 7.2 to 7.6
apply.
7.2 You must pay Your Share of the Outgoings for each Outgoings Year.
7.3 PAYMENTS ON ACCOUNT OF YOUR SHARE
(a) We may give You a notice stating Our estimate of Outgoings and Your
Share.
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(b) You must pay instalments in advance on each Licence Fee Day on account
of Your Share of Outgoings. Each instalment is Our estimate of Your
Share for Outgoings Year divided by the number of Licence Fee Days in
that Outgoings Year.
(c) In each Outgoings Year after the first You must pay on each Licence
Fee Day on account of Your Share an instalment equal to that payable
on the previous Licence Fee Day unless We vary it by a further notice.
7.4 NOTICE OF ACTUAL OUTGOINGS
As soon as possible after the end of an Outgoings Year We must give You a
notice of the actual Outgoings.
7.5 ADJUSTMENTS
On the next Licence Fee Day after We give You a notice of either estimated
or actual Outgoings You must pay Us (or We must credit You with) the
difference between what You have paid on account of Your Share for the
Outgoings Year to which the notice applies and what the notice says is
payable.
7.6 VARIATIONS
(a) From and including the date or dates that the Lettable Area either of
the Building or of the Park or of both are varied or We are satisfied
in Our absolute discretion that it is otherwise appropriate to do so
the percentages in Items 10 and 11 will be varied accordingly.
(b) If the percentages in Items 10 and 11 are varied We will give You a
notice stating the new percentage, the reason or reasons for the
variation and the date from which the variation applies.
7.7 SERVICES OUTSIDE HOURS
If at Your request We make Airconditioning or other non-24 hour Services
available to the Building or the Premises other than during the hours set
out in Item 13, then within seven (7) days after We ask You must pay Our
reasonable costs charges and expenses of making the Services available.
7.8 CLEANING CHARGE
You must exclusively use the cleaning service We have made available for
the Building and pay the cost of the cleaning service at the rates
negotiated by Us with the cleaning contractor on a competitive tender basis
("CLEANING CHARGE"). Your Premises must be cleaned to the minimum standard
set out In Our cleaning specification. If You want extra cleaning You must
notify the cleaning contractor of Your additional requirements and pay for
that extra cleaning. You must pay all Cleaning Charges directly to Our
cleaning contractor.
We regularly and, at least annually, review the cleaning contractor and
negotiated rates and We may change the cleaning contractor and rates at any
time. You must ensure that any contract You make with the cleaning
contractor can be cancelled by You if the cleaning contractor is not
reappointed or is terminated.
7.9 ATP COMMUNITY - CORE FACILITIES
You will be required to participate in the Park community by using:
(a) a minimum of one telephone line and one fibre connection to the Park
infrastructure communications network;
(b) Smart Card technology; and
(c) other Park provided infrastructure;
("COMMUNICATION AND INFRASTRUCTURE FACILITIES").
You will be charged for the provision of and Your use of Communications and
Infrastructure Facilities ("CIF CHARGES"). CIF Charges will be calculated
at the same rates We charge other licensees. We will xxxx You for Your CIF
Charges and You must pay them on the next Licence Fee Day by the Direct
Debit System.
7.10 ADDITIONAL FACILITIES
We may provide additional services, infrastructure and new technologies
("ADDITIONAL FACILITIES") which We will offer to You. If You use the
Additional Facilities We will charge You for providing, and Your use of,
the Additional Facilities and include those charges in CIF Charges.
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8. COSTS CHARGES AND EXPENSES
In connection with this Licence and any document or matter arising by
virtue of it You must pay promptly;
(a) for every thing You must do;
(b) all stamp duty;
(c) on demand, Our reasonable legal costs and other costs, charges and
expenses including those for negotiating, preparing, executing and
stamping this Licence including obtaining any consents We must obtain
before giving approvals, considering requests for approvals and
exercising rights; and
(d) all reasonable costs, charges and expenses in connection with works
You carry out including, but not limited to, those incurred by Us in
considering, approving and supervising the works and those of
modifying or varying the Building because of the works. We will give
You an estimate of those costs, charges and expenses before You
commence Your works.
9. BANK GUARANTEE
9.1 If there is an amount specified in Item 16 clause 9 applies.
9.2 On or before the Commencing Date You must deliver the Bank Guarantee to Us.
9.3 If You do not comply with any of Your obligations under this Licence
(including any extension or holding over) We may call on the Bank Guarantee
without notice to You.
9.4 If We call on the Bank Guarantee no later than seven (7) days after We give
You a notice asking for it You must deliver to Us a replacement or
additional Bank Guarantee so that the amount guaranteed is the amount
specified in Item 16.
9.5 When this Licence ends We may call on the Bank Guarantee for outstanding
amounts payable by You under this Licence and then after You vacate the
Premises must return the Bank Guarantee to You.
9.6 Your obligations under clause 9 are essential terms of this Licence.
10. SECURITY DEPOSIT
10.1 If there is an amount specified in Item 17 clause 10 applies.
10.2 On or before the Commencing Date You must pay the Security Deposit to Us by
cash or unendorsed bank cheque.
10.3 If You do not comply with any of Your obligations under this Licence
(including any extension or holding over) We may draw on the Security
Deposit without notice to You.
10.4 If We draw on the Security Deposit no later than seven (7) days after We
give You a notice asking for it You must pay that amount to Us by cash or
unendorsed bank cheque so that the amount of the Security Deposit is
reinstated to the amount specified in Item 17.
10.5 When this Licence ends We may draw on the Security Deposit for outstanding
amounts payable by You under this Licence and then after You vacate the
Premises We must refund any balance of the Security Deposit to You.
10.6 Your obligations under clause 10 are essential terms of this Licence.
11. PAYMENT REQUIREMENTS
11.1 You must make payments under this Licence to Us (or to a person nominated
by Us in a notice to You) by the method We reasonably require without
set-off, counterclaim, withholding or deduction.
11.2 If You pay an amount and it is found later that the amount was not correct
even if We have given You a receipt You must pay Us (or We must credit You
with) the difference between what We have been paid and what You should
have paid within seven (7) days after either party gives the other a notice
about the mistake.
11.3 We need not make demand for any amount payable by You unless this Licence
says that demand must be made.
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DECEMBER 2005 EDITION
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11.4 If You must pay an amount on the next Licence Fee Day and there is no next
Licence Fee Day You must pay that amount within seven (7) days after We
demand it.
11.5 Expiry or termination of this Licence does not effect:
(a) Your obligations to:
(i) make payments under this Licence; or
(ii) give Us information so that We can calculate those payments; or
(b) Our obligations to account to You for any overpayment.
11.6 GOODS AND SERVICES TAX
(a) "GST" means any goods and services or any tax applying to this Licence
in a similar way and any additional tax, penalty tax, fine, interest
or other charge under a law for that tax (not referable to the
taxpayer's failure to pay on time).
(b) Payment of GST
(i) You must pay to Us, or reimburse Us for, any GST We must pay:
(A) on any supply made by Us under this Licence; and
(B) in relation to any aspect of this Licence;
(ii) You must pay to Us, or reimburse Us for, GST on:
(A) the same day as the due date for the consideration in
respect of the relevant supply; or
(B) if there is no due date, within seven (7) days of a written
request from Us.
(iii) We must provide You with an invoice which shows the price of the
supply and the GST amount within seven (7) days after payment by
You.
(c) Operation of Indemnities
(i) Each indemnity in this Licence survives the expiry or termination
of this Licence;
(ii) A party may recover a payment under an indemnity under this
Licence before it makes the payment in respect of which the
indemnity is given;
(iii) 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;
(iv) 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).
(d) Your obligations under clause 11.6 are essential terms of this
Licence.
11.7 INTEREST ON OVERDUE MONEY
If You do not pay any amount payable by You under this Licence on time, You
must pay interest on that amount on demand by Us from when it becomes due
for payment until it is paid. Interest is calculated on daily balances at
the Default Rate.
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INSURANCE AND RISK
12. INSURANCES
12.1 You must:
(a) maintain with insurers and on terms approved by Us in Your and Our
names and in the name of any other person nominated by Us:
(i) Public Liability insurance in respect of the Premises (including
without limitation any risk associated with or arising directly
or indirectly from the Premises or the condition of the Premises)
for an amount of at least twenty million dollars ($20,000,000.00)
or a greater amount which in Our reasonable opinion You should
Insure;
(ii) Industrial Special Risks Insurance of Your Property for Its full
insurable value against all usual risks; and
(iii) other insurances relating to the Premises which are required by
law or which in Our reasonable opinion You should take out
including but not limited to insurance in connection with Your
works on the Premises and insurance of property owned by You or
in Your care in the Premises;
(b) ensure that insurance under this clause contains a clause providing
that each insured person will be treated as if each has a separate
policy and the acts of one will not affect the rights of another and a
clause by which the insurer gives up any rights it may have because it
has paid a claim to stand in the place of an Insured person to take
action against another insured person;
(c) give Us a copy of each insurance policy no later than the Commencing
Date;
(d) give Us annually a copy of the certificate of renewal of each of those
insurance policies; and
(e) notify Us immediately if an insurance policy required by this clause
is cancelled or an event occurs which may allow a claim or affect
rights under an insurance policy in connection with the Premises the
Building or property in them.
12.2 You may enforce, conduct, settle or compromise claims under any insurance
policy required by this Licence if You obtain Our prior approval (which We
may not unreasonably withhold).
12.3 You may not do any thing which may affect rights under any Insurance or
which may increase an insurance premium payable in connection with the
Building or Our Property.
12.4 Insurance proceeds of policies under clause 12.1(a) must be paid into a
separate joint bank account in the names required by the clause. The money
must be used to settle claims in connection with the event insured against
or to replace or reinstate the insured item.
13. EXCLUSION OF WARRANTIES, INDEMNITIES AND RELEASES
13.1 No REPRESENTATION OR WARRANTY
You acknowledge that no promise, representation, warranty or undertaking
has been given by Us in respect to:
(a) the suitability or adequacy of the Premises (including the existence,
suitability or adequacy of any Services) for any purpose;
(b) the suitability or adequacy of the Building (including the existence,
suitability or adequacy of any Services) for any purpose;
(c) the Park;
and to the full extent permitted by law such promises, representations,
warranties or undertakings as to suitability and as to adequacy are
expressly negatived.
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13.2 YOU ACKNOWLEDGE BUILDING AND PREMISES CONTAIN HAZARDS
You acknowledge We have told You the Park and the Building were previously
used for railway and associated services and may have had on or in them
dangerous goods, hazardous chemicals, substances, contaminated materials
("Hazards") and although they have been remediated You can not because of
any Hazards:
(a) make any claim against Us;
(b) rescind or terminate this Licence.
13.3 HERITAGE AND OTHER DISCLOSURES
(a) You acknowledge We have told You:
(i) the Building is an Item of Heritage significance and Heritage
Laws (including a Conservation Plan) apply to it; require it to
be conserved and preserved; and do not permit it to be used or
altered, except in compliance with Heritage Laws;
(ii) the machinery collection contained in or about the Building is
also an item of Heritage significance and Heritage Laws
(including the Machinery Conservation Plan) apply to it; require
it to be conserved and preserved; and exhibited to and accessible
by the Public;
(iii) in providing public exhibition and public access We will have a
functioning blacksmith foundry operation; operate the machinery
collection from time to time; carry out works to the machinery
collection, which may cause noise, vibration and disturbance to
occupiers of the Building;
(iv) the Building will have significant public user because its
operations will include use function and convention centre and
those operations may affect Your Business and Your use of the
Premises.
(b) You will not:
(i) make any claims against Us;
(ii) rescind or terminate this Licence;
with respect to the matters disclosed in this clause 13.3.
13.4 YOUR LIABILITY
You are liable for and indemnify Us against liability or loss arising from
and cost incurred in connection with:
(a) damage loss injury or death caused or contributed to by Your act
omission negligence or default except to the extent it is contributed
to by Our act omission negligence or default;
(b) any thing We do which You must do under this Licence but which You
have not done or have not done properly.
13.5 YOU RELEASE US
(a) You release Us from, and agree that We are not liable for, liability
or loss arising from and cost incurred in connection with:
(i) damage loss injury or death except to the extent it is
contributed to by Our act omission negligence or default;
(ii) any thing We are permitted or required to do under this Licence;
and
(iii) (A) a Service not being available, being interrupted or not
working properly;
(B) Our plant and equipment not working properly; or
(C) the Common Areas not being clean.
(b) You release Us from and agree that We are not liable for damage to or
loss of any property or equipment (including sensitive electrical
equipment) or loss including any amount for consequential loss or
damage, loss of profits, loss of revenues, loss of data or any
special, speculative, indirect or contingent losses arising from and
costs incurred in connection with:
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(i) the unauthorised use in or removal from the Premises of Your
confidential Information designs inventions or trade secrets;
(ii) the quality of any Service, including without limit, electricity
supply (including non-supply).
(c) Each indemnity is independent from Your other obligations and
continues during and after the end of this Licence. We may enforce an
indemnity before incurring expense.
13.6 HEAD LEASE INDEMNITY
You indemnify the lessor under the Head Lease and the other specified
persons in the terms set out in Part 11 of the Head Lease.
USE OF THE PREMISES
14. USE AND CARRYING ON BUSINESS
14.1 You must use the Premises only for the Permitted Use.
14.2 In carrying out the Permitted Use You must at all times conform to and
comply with the Park Entry Criteria. If You fail to do so We can exercise
Our rights under Part 20 of this Licence.
14.3 You must obtain approval(s) from the Authorities for Your use of the
Premises and always;
(a) Keep the approval(s) current;
(b) comply with all conditions of the approval(s).
ADDITIONAL OBLIGATIONS
15. YOUR ADDITIONAL OBLIGATIONS
15.1 You must
(a) keep the Premises and everything in them tidy and free of vermin and
comply with Our directions about refuse removal and recycling;
(b) give Our cleaners access to clean the Premises at reasonable times:
(c) comply on time with all laws and the requirements of Authorities in
connection with the Premises, Your Business, Your Property and the use
or occupation of the Premises (including obtaining all permits)
including the Occupational Health and Safety Act, the Factories, Shops
and Industries Act, Environmental Laws and regulations made under
those Acts and Laws;
(d) install all equipment necessary to condition the Services including,
without limit, electricity supply to the Premises to protect Your
equipment;
(e) promptly pay the relevant authorities for all services consumed on the
Premises which are separately metered;
(f) Inform Us of damage to the Building or the Premises or of a faulty
Service immediately You become aware of it;
(g) observe the maximum load weights throughout the Building;
(h) promptly, when asked by Us acting reasonably, do everything necessary
to enable Us to exercise Our rights under this Licence;
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(i) comply with Our security arrangements;
(j) If We approve Your use of a business name which is connected with the
Building, terminate any right You have to use that business name on
the date You must vacate the Premises;
(k) if We approve Your storage and use of inflammable, volatile or
explosive substances (including without limitation compressed gasses)
or potentially dangerous equipment (including without limitation
lasers) provide containment measures for them as approved by Us;
(l) participate in any emergency drill and cooperate in all fire and
safety procedures;
(m) evacuate the Building immediately and in accordance with Our
directions when informed of any actual or suspected emergency;
(n) Secure the Premises when they are unoccupied and comply with Our
directions about Building security;
(o) give Us a list of the names and work telephone numbers of all Your
employees and contractors on the Premises and give Us an updated list
whenever changes to those details occur;
(p) give Us one (1) copy of all access devices to all internal locks on
the Premises and give Us replacements whenever those locks are
changed;
(q) if there are directory boards, submit the form in which You require
Your name and description to appear on them to Us for Our approval,
make whatever changes We reasonably require and pay Us on demand the
cost of placing that information on the directory boards;
(r) notify Us of all Key Visitors to the Premises and give Us suitable
opportunity to meet them; and
(s) comply with all Rules.
15.2 You must not:
(a) alter the Premises (including without limitation repainting) or alter
or remove Our Property, in whole or in part, from the Premises;
(b) store or use inflammable volatile or explosive substances (including
without limitation compressed gasses) or potentially dangerous
equipment (including without limitation lasers) on the Premises
without giving Us prior notice;
(c) do any thing in or around the Building which in Our reasonable opinion
may be annoying dangerous or offensive;
(d) do any thing to overload the Building's facilities or Services nor use
them for anything other than their intended purpose;
(e) smoke in the Building;
(f) put up signs notices or advertisements visible from outside the
Premises, blinds or awnings, antennae or receiving dishes or install
vending or amusement machines without Our approval;
(g) hold auction, bankrupt, fire or other sales in the Premises;
(h) use a business name which includes words or use a logo or any sort of
identification connecting You with the Building or the Park other than
in the manner We authorise;
(i) remove floor coverings from where they were originally laid in the
Premises without Our approval;
(j) dispose of rubbish in the Building in bins provided for common use;
(k) use any method of heating cooling or lighting the Premises other than
those provided or approved by Us;
(l) use the passenger lifts to carry goods or equipment;
(m) operate a musical instrument, radio, television or other equipment
that can be heard outside the Premises;
(n) throw anything out of any part of the Building or down lift xxxxx;
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(o) move heavy or bulky objects through the Building without Our approval;
(p) obstruct:
(i) windows, glass panels or glass partitions in the Premises except
by internal blinds or curtains approved by Us;
(ii) any air vents air conditioning ducts or skylights in the
Premises;
(iii) emergency exits from the Building or the Premises; or
(iv) the Common Areas;
(q) place anything near windows, glass panels or glass partitions in the
Premises which in Our opinion is unpleasant unsightly or inappropriate
when viewed from outside the Premises;
(r) Interfere with directory boards;
(s) keep any animal on the Premises; or
(t) use any explosive power driven means of fixing objects to ceilings,
walls or floors.
15.3 LICENSEE'S ENVIRONMENTAL WARRANTY
You agree with and warrant to Us that You will not at any time, and You
will ensure that each and all Your employees, agents, contractors, sub
contractors and invitees, will not at any time:
(a) use the premises for or carry on upon the premises any business,
method or manner of manufacture or fabrication, means of production or
other activity which creates or leads to the creation of any Hazardous
Materials contrary to a provision of any Environmental Law or accepted
industry practice in respect to Hazardous Materials; or
(b) allow any Hazardous Materials to escape from or be emitted from the
Premises; or
(c) contaminate or pollute the Premises or any other property real or
personal, or any part of the Environment with any Hazardous Materials;
or
(d) do or cause to be done any thing on the Premises which would result in
any Government Agency issuing any notice, direction or order requiring
any cleanup, decontamination, remedial action or making good under any
Environmental Law; or
(e) do or cause to be done any thing on the Premises which would
constitute a violation or contravention of any Environmental Law; or
(f) permit any emission from the Land or any activity undertaken in order
to implement the Permitted Business to exceed any emission quota
prescribed under any Environmental Law; or
(g) fail to comply with any direction, order or notice issued under any
Environmental Law with respect to the Premises concerning
Contamination, or alleged breaches of Environmental Law.
And You agree to, and do hereby indemnity and will keep indemnified Us,
Sydney Harbour Foreshore Authority, Her Majesty Queen Xxxxxxxxx XX, the
State of
New South Wales and Our agents, employees, contractors, sub
contractors (other than You) Licensees and other invitees against all
claims, demands, suits, proceedings, losses, costs, expenses, penalties or
damage which are brought, claimed, issued or assessed against Us or any
property of Ours or payable or suffered by Us as a result of a breach by
You of the warranty set out in this clause 15.3.
This warranty shall survive the termination of this Licence and any
renewal.
16. REPAIR, REDECORATION AND YOUR WORKS
16.1 OUR APPROVAL
You must not carry out works to the Premises without Our approval. If We
give approval We may impose conditions.
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DECEMBER 2005 EDITION
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16.2 YOUR WORKS
You must ensure that any works You do including works under clause 16.4 are
done:
(a) by contractors approved by Us;
(b) in a proper and tradesmanlike manner;
(c) in accordance with any plans specifications and schedule of finishes
required and approved by Us;
(d) In accordance with all laws and the requirements of Authorities; and
(e) in accordance with Our reasonable requirements and directions.
16.3 FIRE REGULATIONS
You must:
(a) comply with insurance, sprinklers and fire alarm regulations in
respect of any works You do in the Premises; and
(b) pay to Us all costs of any alterations to the sprinkler and fire alarm
installation in respect of any:
(i) non-compliance by You with paragraph (a); or
(ii) the requirements of:
(A) the insurance Council of Australia; or
(B) Our insurer.
16.4 AIRCONDITIONING
You must pay for all alterations that have to be made to the Air
Conditioning System because of any works (including Your partitions) You do
in the Premises.
16.5 REPAIR OF ITEMS
You acknowledge, except for possible latent defects of which You could not
be aware, the Premises were in good repair at the Commencing Date.
16.6 REPAIR, REPLACE AND REDECORATE
You must:
(a) keep the Premises and Your Property in good repair excluding fair wear
and tear;
(b) promptly replace worn or damaged items in the Premises being Your
Property with items of similar quality; and
(c) redecorate the Premises and Your Property in accordance with Item 14.
16.7 STRUCTURAL WORK
You do not have to carry out structural work unless it is required because
of Your use of the Premises (including the number, sex or disability status
of Your employees) or Your act, omission, negligence or default, or to
reinstate the Premises.
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DECEMBER 2005 EDITION
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17. TRANSFER AND OTHER DEALINGS
17.1 TRANSFER
You may not transfer this Licence.
17.2 CHANGE IN YOUR CONTROL IF YOU ARE A COMPANY
If You are a company which is neither listed nor wholly owned by a company
which is listed on the Australian Stock Exchange You must not make any
change in Your shareholding or that of Your holding company so that a
different person or group of persons will control the composition of the
board of directors or more than fifty per centum (50%) of the shares giving
a right to vote at general meetings.
17.3 CHANGE IN YOUR CONTROL IF YOU ARE A COMPANY, WITH OUR APPROVAL
If You want to change:
(a) Your shareholding or that of Your holding company; or
(b) the control of Your board of directors;
and You obtain Our prior written approval (which may be granted, granted
conditionally or withheld in Our sole discretion) to that change, then
clause 17.2 does not apply to that change which We have approved.
17.4 OTHER DEALINGS
You may not let or licence or otherwise part with possession of the
Premises. Using subcontractors or consultants in Your business
("ENGAGEMENT") is permissible but You can not make a legally binding
agreement with that person which gives a right to use the Premises (or
part) after Engagement has ended.
17.5 SECURITIES
You may not create or allow to come into existence;
(a) a security over Your interest in this Licence;
(b) a licence or security affecting Your Property.
18. OUR ADDITIONAL OBLIGATIONS AND RIGHTS
18.1 QUIET ENJOYMENT
(a) Subject to this Licence while You comply with Your obligations under
this Licence:
(i) You may enter and use the Premises during the term of this
Licence without interference from Us. The legal right to
possession of the Premises remains with Us;
(ii) We will observe and will continue to observe all of the covenants
contained in the Head Lease and will not permit Your interest in
this Licence to be determined by reason of any breach by Us of
any obligation in or arising out of the Head Lease express or
implied.
(b) We must take all reasonable action to keep:
(i) the Services provided by Us available to the Premises during the
hours specified in Item 13 and, if We have agreed to do so at
Your request, other than during the hours in Item 13;
(ii) Our plant and equipment in the Building in good working order;
and
(iii) the Common Areas clean.
(c) You may not terminate this Licence or stop or reduce payments under it
because a Service is not available or is interrupted or fails or Our
plant or equipment breaks down or the Common Areas are not clean.
2 June 2006
DECEMBER 2005 EDITION
Page 18
18.2 CONSENTS
(a) If We have agreed to obtain a person's consent in connection with this
Licence We must do everything reasonably necessary to obtain that
consent and inform You in writing within seven (7) days after
receiving consent or having it refused.
(b) We may:
(i) carry out any works in the Building or the Premises (including
but not limited to alterations and redevelopment) or limit access
to or close the Common Areas if We take reasonable steps (except
in emergencies) to minimise interference with Your Business;
(ii) exclude or remove any person from the Building;
(iii) restrict access to delivery and pick-up areas if We take
reasonable steps (except in emergencies) to minimise interference
with Your Business;
(iv) permit functions displays parades and other activities in the
Building (including without limitation the Common Areas and the
atrium);
(v) install and use a public address system throughout the Common
Areas;
(vi) change the direction or flow of pedestrian or vehicular traffic
in to, out of, or through the Building; and
(vii) change the name or logo of the Building or the Park.
18.3 TO ENTER
(a) We may enter the Premises at reasonable times on reasonable notice to
see if You are complying with Your obligations under this Licence or
to do anything We must or may do under this Licence.
(b) If We decide there is an emergency We may enter the Premises at any
time without notice.
18.4 INSPECTIONS
After giving reasonable notice We may:
(a) enter the Premises to show persons through the Premises; and
(b) display for a reasonable time from the Premises a sign indicating that
the Premises are available for licence.
18.5 ACCESS TO BUILDING
If We decide there is an emergency We may stop You from entering the
Building at any time.
18.6 ENFORCING RIGHTS AND NO EXCLUSIVE BUSINESS
We may:
(a) enforce Our rights against You whether or not We enforce Our rights
against other occupiers of the Building; and
(b) licence any part of the Building for a business which competes with
Your Business.
18.7 TO DEAL WITH THE LAND
Subject to clause 18.1(a) We may subdivide the Building or other premises
in it or grant easements or other rights over the Building or the Premises.
18.8 CHANGE OF OWNER
If We deal with Our interest in the Building We can transfer Our rights and
obligations under this Licence and We are released from any obligation
under this Licence arising after another person acquires Our interest in
this Licence end You will do everything to transfer the benefit of the
security to that person. In that event We must at
2 June 2006
DECEMBER 2005 EDITION
Page 19
Our own cost procure from that other person a deed with and in Your favour
whereby that other person agrees to observe, perform and be bound by this
Licence.
18.9 WE MAY RECTIFY
After giving You reasonable notice of what is to be done We may do at Your
cost anything which You should have done under this Licence but which You
have not done or which We consider You have not done properly.
18.10 AGENTS
We may appoint agents or others to exercise any of Our rights or perform
any of Our duties under this Licence. Communications from Us override those
from the agents or others if they are inconsistent.
18.11 COMMON AREAS
(a) Subject to this Licence and the Rules You may use the Common Areas for
the purposes for which they are intended.
(b) We may use the Common Areas for any purpose including special events
and occasions at which time You will not be permitted to use them
unless We permit You.
18.12 FACILITIES
If We provide facilities in the Building such as lecture theatres seminar
and conference rooms and associated equipment and services You may book
these facilities in accordance with Our standard booking procedure upon
payment of Our standard charges, both as determined by Us from time to
time.
18.13 RULES
We may delete, add to or vary the Rules which have effect with respect to
the operation, use, safety, management and occupation of the Building. We
must give You a notice about Rules We delete, add to or vary.
18.14 CAR PARKING
This Licence does not grant to You any rights to motor vehicle parking in
the Park. The limited parking areas within the Park are accessible:
(a) casual : daily fee (subject to availability);
(b) non-casual : separate Deed of Licence for Parking of Motor Vehicles.
19. OBLIGATIONS AT THE END OF THIS LICENCE
19.1 YOU MUST VACATE
You must cease to use the Premises by 6:00 pm on the earlier of the
Terminating Date and the date this Licence ends and subject to clause
19.2(a) leave them in a satisfactory condition having regard to Your
obligations under this Licence.
19.2 REMOVAL OF YOUR PROPERTY
(a) When this Licence ends You must remove Your Property from the Premises
unless We permit it to remain, and promptly make good any damage
caused by that removal.
(b) Title to any items of Your Property permitted to remain and which You
leave will vest in Us when this Licence ends.
(c) You must not remove Your Property which:
(i) We have stated (as a condition of giving approval to
installation) may not be removed; or
(ii) Is part of structural work done by You to the Premises unless We
give You a notice requiring You to remove that part of Your
Property.
(d) Subject to clauses (c)(i) and (c)(ii) You must remove Your Property
from the Premises during the seven (7) days immediately before the
date You have to cease to use the Premises.
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DECEMBER 2005 EDITION
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19.3 YOUR PROPERTY NOT REMOVED
(a) If We terminate this Licence by re-entry You must give Us a notice
within seven (7) days after termination that You will remove Your
Property which You may or must remove from the Premises.
(b) Within seven (7) days after You give Your notice We must give You a
notice stating which items of Your Property You may remove in
accordance with clause 19 and when and how Your Property is to be
removed from the Premises and by whom.
(c) We may treat Your Property as abandoned and deal with it in any way We
see fit at Your expense if You do not:
(i) give Your notice on time; or
(ii) remove Your Property in accordance with clause 19 or a notice
given under it.
(d) Your Property is at Your risk at all times.
(e) On the date You must cease to use the Premises You must give Us the
keys access cards and similar devices for the Building and the
Premises held by You and any other person You have given them to.
19.4 REINSTATEMENT
When this Licence ends You must reinstate the Premises to their condition
on the Commencing Date including removal of any works which You have
carried out to the Premises unless under clause 19 We state that You must
not remove the works or that You need not reinstate.
20. DEFAULT
20.1 ESSENTIAL TERMS
Each of Your obligations to pay money and Your obligations under clauses 5,
6, 7, 8, 9, 10, 12, 13, 14, 16 and 17 are essential terms of this Licence.
Other obligations under this Licence may become essential terms including
those clauses in Annexure "D" which are also specified as essential terms.
20.2 OUR RIGHT TO END THIS LICENCE
(a) We may end this Licence by giving You notice or by re-entry if You:
(i) repudiate Your obligations under this Licence;
(ii) do not comply with an essential term of this Licence; or
(iii) do not comply with an obligation under this Licence (which is
not an essential term) and in Our reasonable opinion:
(A) the non-compliance can be remedied but You do not remedy it
within a reasonable time after We give You notice to remedy
it;
(B) the non-compliance can not be remedied or compensated for;
or
(C) the non-compliance can not be remedied but We can be
compensated and You do not pay Us compensation for the
breach within a reasonable time after We give You notice to
pay it;
(iv) assign Your Property for the benefit of Your creditors;
(v) if You are a corporation, You become an externally administered
body corporate under the Corporations Xxx 0000;
(vi) fail to pay any money (including licence fee, Your Share of
Outgoings and other payments) within fourteen (14) days of the
due date for payment of those monies.
(b) We may end this Licence if the Head Lease is terminated for any
reason.
(c) If this Licence ends under clause 20:
2 June 2006
DECEMBER 2005 EDITION
Page 21
(i) You indemnify Us against any liability or loss arising and any
cost incurred (whether before or after termination of this
Licence) in connection with Your breach or the end of this
Licence including Our loss of the benefit of You performing Your
obligations under this Licence from the date that it ended until
the Terminating Date; and
(ii) We must take reasonable steps to mitigate Our loss.
21. DAMAGE TO BUILDING OR PREMISES AND RESUMPTION
21.1 If the Building is damaged so that Your use of the Premises is
substantially adversely affected We must give You a notice within a
reasonable time after the damage occurs either:
(a) terminating this Licence on a date not less than two (2) weeks after
the date We give the notice; or
(b) stating that We intend to make the Premises fit for Your use.
21.2 If We do not make the Premises fit for Your use within a reasonable time
after giving Our notice that We intend to do so, You may give Us a notice
stating that You will terminate this Licence if We do not make the Premises
fit within a reasonable time after You give Your notice.
21.3 ABATEMENT OF PAYMENTS
(a) You may reduce Your payments under this Licence from the date the
damage occurs to the date this Licence is terminated or to the date
before the Premises are made fit for Your use. Any reduction must be
proportionate to the loss of amenity caused by the damage.
(b) You may not terminate this Licence or reduce payments under clause 21
if;
(i) the damage is caused or contributed to by; or
(ii) rights under an insurance policy in connection with the Building
are prejudiced or a policy is cancelled or payment of a premium
or a claim is refused by the insurer because of;
Your act omission negligence or default.
(c) Clause 21 does not oblige Us to restore or reinstate the Building or
the Premises.
(d) Any dispute under clause (a) will be referred to arbitration.
21.4 RESUMPTION
If the Building or any substantial part of it is resumed or otherwise
permanently taken for public purposes We may give You a notice terminating
this Licence with effect from whatever date is stated in the notice.
22. RELOCATION
22.1 RELOCATION NOTICE
For any reason We may give You a relocation notice:
(a) requiring You to surrender this Licence and vacate the Premises on a
specified surrender date which is at least three (3) months after We
give You the relocation notice; and
(b) giving details of new premises within the Park to be made available to
You and offering to enter in to a new licence of those premises on
terms determined by Us in Our absolute discretion.
22.2 REJECTION OR ACCEPTANCE
You are taken to have accepted the offer of a new licence unless You give
Us notice of termination of this Licence within one (1) month after We give
the relocation notice. If You give a termination notice on time, this
Licence is ended and You must vacate the Premises on the date that is three
(3) months after the date We gave the relocation notice.
2 June 2006
DECEMBER 2005 EDITION
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22.3 NEW LICENCE
Unless You have given a termination notice on time We may give You a form
of surrender of this Licence and the form of new licence. The new licence
must be:
(a) for a term beginning on the date after the surrender date and ending
on the Terminating Date; and
(b) otherwise similar to this Licence and with those changes necessary to
make it appropriate to the new premises including but not limited to
licence fee, or as required by clause 22.1(b) and by clause 3.4(e).
22.4 REASONABLE COSTS TO BE PAID BY US
Unless You have given a termination notice on time. We must pay Your
reasonable Costs of Relocation, stamp duty and reasonable legal costs and
disbursements in connection with Your execution of the surrender of this
Licence and the new licence.
22.5 STAMP DUTY REFUND
You must do everything reasonably necessary to ensure that any stamp duty
refundable on this Licence is paid to Us.
22.6 RIGHTS AND OBLIGATIONS
In connection with any fit-out or other works which You do under clause 22,
We have the same rights and You have the same obligations as those in
clause 16 except that We must pay those costs which We must pay under
clause 22.4.
22.7 SURRENDER OF LICENCE
If You do not give Us a termination notice on time on or before the
surrender date You must vacate the Premises and give Us:
(a) the surrender of this Licence executed by You;
(b) Your counterpart of this Licence;
(c) the new licence executed by You; and
(d) a guarantee and Indemnity in connection with Your obligations under
the new licence by the same person or another person acceptable to Us
on the same terms as any given in connection with Your obligations
under this Licence.
22.8 RELEASE
You release Us from and agree that We are not liable for liability or loss
arising from and cost incurred in connection with You relocating to new
premises (except for those costs We agree to pay under clause 22.4).
23. DEMOLITION
23.1 TERMINATION NOTICE
If We want to demolish, substantially repair, renovate or reconstruct the
Building or the part of it containing the Premises, We must give You:
(a) details of the proposed works; and
(b) at least six (6) months' notice of termination unless this Licence is
for twelve (12) months or less, In which case the notice of
termination must be at least three (3) months.
23.2 YOU CAN END LICENCE
After We have given a termination notice under clause 23.1 You may end this
Licence at any time within six (6) months before the termination date in
Our notice by giving Us at least seven (7) days' notice of termination
(unless this Licence is for twelve (12) months or less in which case You
may give Your notice at any time within three (3) months before the
termination date in Our notice).
2 June 2006
DECEMBER 2005 EDITION
Page 23
24. GUARANTEE AND INDEMNITY
24.1 CONSIDERATION
(a) If there is a name or an Australian Company Number specified in Item
18, clause 24 applies.
(b) The Guarantor gives this guarantee and indemnity in consideration of
You agreeing to enter in to this Licence. The Guarantor acknowledges
the receipt of valuable consideration from You for the Guarantor
incurring obligations and giving rights under this guarantee and
indemnity.
24.2 GUARANTEE
The Guarantor unconditionally and irrevocably guarantees to Us the due and
punctual performance and observance by You of Your obligations:
(a) under this Licence (including any extension or holding over); and
(b) In connection with Your occupation of the Premises including the
obligations to pay money.
24.3 INDEMNITY
As a separate undertaking the Guarantor unconditionally and irrevocably
indemnifies Us against all liability or loss arising from and any costs
charges or expenses incurred in connection with a breach by You of this
Licence (including any extension or holding over) including a breach of the
obligations to pay money. It is not necessary for Us to incur expense or
make payment before enforcing that right of indemnity.
24.4 INTEREST
The Guarantor agrees to pay interest on any amount payable under this
guarantee and Indemnity from when the amount becomes due for payment until
it is paid in full. Accumulated interest is payable at the end of each
month. The interest rate to be applied to each daily balance is the Default
Rate.
24.5 ENFORCEMENT OF RIGHTS
The Guarantor waives any right it has of first requiring Us to commence
proceedings or enforce any other right against You or any other person
before claiming under this guarantee and indemnity.
24.6 CONTINUING SECURITY
This guarantee and Indemnity is a continuing security and is not discharged
by any one payment.
24.7 GUARANTEE NOT AFFECTED
The liabilities of the Guarantor under this guarantee and indemnity as a
guarantor, indemnifier or debtor and Our rights under this guarantee and
indemnity are not affected by anything which might otherwise affect them at
law or in equity including but not limited to one or more of the following:
(a) Our granting time or other Indulgence to, compounding or compromising
with or releasing You;
(b) acquiescence, delay, acts, omissions, or mistakes on Our part;
(c) any transfer of one of Our rights;
(d) any variation extension or renewal of this Licence or holding over;
(e) the Invalidity or unenforceability of an obligation or liability of a
person other than the Guarantor;
(f) any change in Your use of the Premises;
(g) this Licence not being effective as a licence during its term; or
(h) any disclaimer by a liquidator of Your obligations under this Licence
(or any extension or holding over).
24.8 SUSPENSION OF GUARANTOR'S RIGHTS
Until all money payable to Us in connection with this Licence is paid the
Guarantor may not without Our approval:
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DECEMBER 2005 EDITION
Page 24
(a) raise a set-off or counterclaim available to it or You against Us in
reduction of Your liability under this guarantee and indemnity;
(b) claim to be entitled by way of contribution indemnity subrogation
marshalling or otherwise to the benefit of any security or guarantee
held by Us in connection with this Licence;
(c) make a claim or enforce a right against You or Your Property; or
(d) prove in competition with Us if a liquidator provisional liquidator
receiver administrator or trustee in bankruptcy is appointed in
respect of You or You are otherwise unable to pay Your debts when they
fall due.
24.9 REINSTATEMENT OF GUARANTEE
If a claim that a payment to Us in connection with this Licence or this
guarantee and indemnity is void or voidable (including but not limited to a
claim under laws relating to liquidation administration insolvency or
protection of creditors) is upheld conceded or compromised then We are
entitled immediately as against the Guarantor to the rights to which it
should have been entitled under this guarantee and indemnity if the payment
had not occurred.
24.10 COST
The Guarantor agrees to pay or reimburse Us on demand for:
(a) Our costs charges and expenses in making enforcing and doing anything
in connection with this guarantee and indemnity including but not
limited to legal costs and expenses on a full indemnity basis; and
(b) all stamp duties fees taxes and charges which are payable in
connection with this guarantee and indemnity or a payment receipt or
other transaction contemplated by it.
Money paid to Us by the Guarantor must be applied first against payment of
costs charges and expenses under clause 24.10 then against other
obligations under this guarantee and indemnity.
INTERPRETATION AND OTHER MATTERS
25. MEANING OF WORDS IN LICENCE
25.1 In this Licence:
"ATP" means the Park;
"AUSTRALIAN INSTITUTE" means the Australian Property Institute (Inc)
New
South Wales Division;
"AUTHORITY" means any Government or Governmental, semi-Governmental, local
Government, administrative, fiscal or judicial body, Department,
Commission, Authority, Tribunal, agency or entity which has jurisdiction
with respect to the Land, the Building, or anything You do or propose doing
in the Premises including the conduct of Your Business;
"BANK GUARANTEE" means an unconditional undertaking (or any replacement or
addition to it under clause 9) by a bank on terms acceptable to Us acting
reasonably to pay on demand the amount in Item 16;
"BUILDING" means Our Building described in Item 3 which Includes;
(a) the Land and any adjoining or nearby land which We use or include for
the purposes of Our Building or other undertaking related to Our
Building; and
(b) all buildings structures and property (other than Your Property) on
the Land and the other land;
"COMMENCING DATE" means the date in Item 5;
"COMMERCIAL AREAS OF THE BUILDING" means those parts that are or are
intended to be licensed to a person for the separate occupation of that
person at a commencement licence fee but Commercial Areas do not include
common areas; function and exhibition spaces; theatres; dining facilities;
workshop and machine display areas;
2 June 2006
DECEMBER 2005 EDITION
Page 25
"COMMON AREAS" means those parts of the Building which We intend for common
use which include loading docks entrances footpaths access ways stairs
elevators and toilets and those parts of the Park necessary to gain access
to the Building;
"CONSUMER PRICE INDEX" means the Consumer Price Index - All Groups for
Sydney published by the Australian Bureau of Statistics or the index
officially substituted for it;
"CONTAMINATION" means a solid, liquid, gas, odour, heat, sound, vibration,
radiation, substance or other material which makes or may make any part or
the whole of the Premises or the surrounding Environment;
(a) unsafe or unfit for habitation or occupation by persons or animals
(including fish and insects);
(b) degraded in its capacity to support plant or animal (including fish
and insects) life; or
(c) otherwise environmentally degraded;
"COSTS OF RELOCATION" MEANS:
(a) the cost of removing to new premises Your Property which is movable
and not a fixture;
(b) the lower of:
(i) the written-down value in Your books; or
(ii) the fair market value;
of that part of Your Property which You installed in the Premises
which is built in and which can not reasonably be moved to and
reinstated in that new Premises;
BUT Costs of Relocation does not include Your Property which:
(c) We have stated (as a condition of giving approval to installation) may
not be removed;
(d) is part of structural work done by You to the Premises;
"CPI ADJUSTMENT DATE" means each date in Item 9;
"CURRENT CPI" means the Consumer Price Index number for the quarter ending
immediately before the relevant CPI Adjustment Date;
"DEFAULT RATE" means the rate which is two per centum (2%) per annum above
the rate quoted on the date of demand by Our nominated banker on unsecured
overdraft accommodation over one hundred thousand dollars ($100,000.00);
"ENVIRONMENT" includes all aspects of the surroundings of human beings
including:
(a) the physical characteristics of those surroundings such as the land,
the waters, the air, the atmosphere and/or indoor workspaces;
(b) the biological characteristics of those surroundings such as the
animals (including fish and insects), plants and other forms of life;
and
(c) the aesthetic characteristics of those surroundings such as their
appearance, sounds, smells, tastes and textures;
"ENVIRONMENTAL LAW" means all laws (including without limitation, statutes,
regulations, orders, notices, ordinances, directions, notices, or other
requirements) relating to the environment including but not limited to
planning, heritage, environmental assessment, health, safety, toxic or
hazardous materials waste, disposal, contamination or pollution and all
licenses, approvals, consent, permission or other permits issued or
required to be issued thereunder;
"GUARANTOR" means a person in Item 18;
"HAZARDOUS MATERIALS" means any material, substance, gas, liquid, chemical,
biological, mineral or other physical matter which is toxic, flammable or
inflammable, harmful to the environment (including but not limited to any
life form) or causes or potentially may cause pollution, contamination, or
any hazardous or toxic spill, leak or discharge
2 June 2006
DECEMBER 2005 EDITION
Page 26
or otherwise causes damage (including but not limited to asbestos or any
similar material or compound or similarly hazardous material or compound);
"HEAD LEASE" means the lease of the Land between Us as tenant and City West
Development Corporation as landlord granted or to be granted pursuant to
the Agreement for Lease between the same parties dated on or about 21
December 1995;
"INDUSTRIAL SPECIAL RISKS INSURANCE" means a policy of insurance which
provides a cover no less extensive than that to be found in Industrial
Special Risks Industry Advisory Wording Xxxx XX or Xxxx V which typically
provides comprehensive insurance;
by Covering: property (Including employees' effects)
belonging to You or held in trust or on
commission or for which You may be responsible;
against Perils: causing physical loss or damage or destruction
(material damage) and causing loss of gross
profit and increased cost of working and claim
preparation costs (consequential loss);
with Limits of Liability: stated with respect to:
- burglary and theft;
- money;
- accidental damage;
- plate glass;
- directors' and employees' personal
effects;
- fusion;
- removal of debris;
and with Basis of
Loss/Settlement: for plant, machinery and other contents at
reinstatement/ replacement value and extra
costs of reinstatement;
within the limits of the sum insured;
"ITEM" means an item referred to in the Reference Schedule;
"KEY VISITOR" means;
(a) a senior executive or a body corporate unincorporated association firm
or authority which We consider to be significant;
(b) a person of national or international standing;
(c) a politician at any level of any government; and
(d) a person whom We otherwise consider important or a dignitary;
"LAND" means the land on which the Building is situated;
"LETTABLE AREA" means the "Net Lettable Area - Office Buildings" (NLA)
calculated by Our surveyor using the Method of Measurement for Lettable
Area - March 1997 of the Property Council of Australia applicable at the
Commencing Date;
"LICENCE FEE" means the yearly amount in Item 7 as varied under this
Licence;
"LICENCE FEE ADJUSTMENT DATE" means the date(s) referred to in Item 8 or
Item 9 of this Licence;
"LICENCE FEE DAY" means the Commencing Date and, for each month, the first
day in each month;
"NETWORK" means the data and communications (internet and intranet) network
at the ATP and comprises extensive fibre-optic computer network with a
backbone of Cisco 5000/4000 data switches and a microwave Internet
connection;
"NETWORK SERVICES" means the services as described in Annexure "C" and
"Network Service" shall have a corresponding meaning;
2 June 2006
DECEMBER 2005 EDITION
Page 27
"OUR PROPERTY" means all plant equipment fixtures and Our other property
within the Premises;
"OUTGOINGS" means:
(a) all amounts paid payable or incurred by Us for an Outgoings Year in
connection with the Land and the operation, repair and maintenance of
the Building including:
(i) rates and assessments and usage and consumption and other charges
(including Service charges) imposed by any Authority and levies
and charges imposed under strata community title or similar
legislation;
(ii) land taxes on the basis that the Land included in the Building is
the only land We own and:
(1) is not subject to a special trust; and
(2) that We are not a non-concessional company under the Land
Tax Management Xxx 0000;
(iii) taxes (except income or capital gains tax) levies imposed
deductions charges withholdings and duties imposed by any
Authority;
(iv) insurance which We reasonably consider is appropriate including
building public liability plate glass Industrial special risks
and loss of licence fees insurance;
(v) cleaning the Building including Common Areas and keeping it free
of vermin and refuse;
(vi) Indoor and outdoor gardening and landscaping;
(vii) caretaking services security and regulating traffic;
(viii) management and administration fees and costs including
salaries, wages, superannuation, pension payments, payroll taxes,
and workers' compensation insurance premiums;
(ix) supplying maintaining and repairing including comprehensive
maintenance contracts and replacing parts and components
associated with repair, Services;
(x) the supply of Services which are not separately metered to an
occupier;
(xi) repairs redecoration maintenance and upkeep of the Common Areas;
(xii) repair, maintenance, renovation and upkeep of the Building;
(xiii) rent, outgoings, costs and charges, payable under the Head
Lease;
(xiv) accounting and audit costs incurred in calculating outgoings;
(b) the proportion specified in Item 10 (as varied) of all amounts (not
already included in (a)) paid payable or incurred by Us for an
Outgoings Year in connection with Our estate in and the operation
repair and maintenance of the Park in respect of:
(i) the Park Common Areas;
(ii) the control, management and maintenance of the Park Common Areas;
(iii) the provision of services, facilities and infrastructure to the
Park as a whole where there is no direct expense recoupment for
the provision of such services, facilities or infrastructure from
any occupier of the Park;
and without limiting the generality of the foregoing shall include:
(iv) all local authority rates, taxes, charges and assessments paid or
payable to the appropriate municipal, shire or local authority;
(v) all rates, taxes, charges, assessments, outgoings and impositions
relating to the provision and operation of all water and sewerage
services;
(vi) land taxes and taxes in the nature of a tax on land;
2 June 2006
DECEMBER 2005 EDITION
Page 28
(vii) rates, charges and other levies payable to any local or other
authority other than such of those charges as are payable by a
Tenant or occupier in the terms of a Lease or Licence;
(viii) all other rates, taxes, charges, assessments, outgoings and
impositions whatsoever (whether parliamentary, municipal or
otherwise and whether assessed charged or imposed by or under
Federal or State law or by Federal, State or local authorities
and whether of a capital or revenue or any other basis and even
though of a novel character) which may be assessed charged or
imposed;
(ix) all head lease rent payable under a head lease(s) of the Park
Common Areas;
(x) all insurance premiums payable in respect of the Park Common
Areas Including any Building and structures thereon and Our
fittings and fixtures therein for their full insurable
reinstatement value against fire, flood, lightning, storm and
tempest, mechanical breakdown, public liability and plate glass
and against such other risks (referable to a Building or to Us or
Our ownership or interest in a Building) as We may deem necessary
or desirable;
(xi) the cost of operating and maintaining (including maintenance
contracts) of all Services supplied to any Building on the Park
Common Areas including, but without limiting the generality of
the foregoing, all charges for electricity, gas, excess water,
oil, telephone and sewerage services, air conditioning plant and
equipment, lighting, Fire services, cleaning, glass cleaning,
rubbish removal and toilet requisites;
(xii) all costs for or in connection with the maintenance, renovation
and upkeep of any Building on the Park Common Areas including the
cost of exterior painting and any structural work;
(xiii) all reasonable management control and security costs In
connection with the Park Common Areas including, but without
limiting the generality of the foregoing, salaries, wages,
superannuation and pension payments and workers' compensation
insurance premiums;
(xiv) all costs incurred for or in connection with the Park Common
Areas including but without limiting the generality of the
foregoing:
(1) services (including lighting) supplied to the Park Common
Areas;
(2) maintenance and upkeep (including re-establishment) of
roads, pathways, plazas, ovals, landscaped areas and all
other active and passive recreation areas;
(3) fencing and security;
(4) all other costs properly incurred with respect to the Park
Common Areas;
(5) accounting and audit costs incurred in calculating Park
Outgoings;
or such part of an expense aforesaid as We, acting reasonably,
determine is properly chargeable as a Park Outgoing.
BUT Park Outgoings will not include any services, facilities or
infrastructure provided at the request or for the specific benefit of an
occupier;
"OUTGOINGS YEAR" means the twelve (12) month period ending on 30 June in
each year or on another date specified in a notice We give to You;
"PARK" means the Australian Technology Park Eveleigh and includes;
(a) the land on which the Park is located;
(b) the buildings from time to time erected on the land; and
(c) any other Improvements from time to time erected on the land;
"PARK ENTRY CRITERIA" means the entry requirement for organisations wishing
to locate at the ATP as listed below:
(a) RESEARCH, DEVELOPMENT AND INNOVATION
- Research and development, or education intensive, measured by the
proportion of turnover generated at the ATP which Is spent on
these activities. This Is generally set at around 80%.
2 June 2006
DECEMBER 2005 EDITION
Page 29
- The approach taken by the ATP to the allowable activities on the
Park; revolves around the definition of what constitutes R&D. As
with all our activities, our role is to be as flexible as we
possibly can while maintaining our primary Focus of developing a
world class technology park. As such we generally describe the
various activities to encompass, but not necessarily be limited
to the following:
Definitions
- You must have a record of innovation, or a strong potential to
establish such a record.
(b) ATP UNIVERSITIES (DASIRABLE BUT NOT MANDATORY)
- Existing relationship with one or more of the sponsoring
universities, or a capacity and Interest to build such a
relationship.
- Technology focused on the Integrated Research Strengths of the
participating universities or relevant to emerging technologies
around which the sponsoring universities have expressed an Intent
to build expertise.
(c) ATP CITIZENSHIP
- Interest in and/or capability to participate in Joint research
and development projects with sponsoring universities and/or
other park residents, or potential park residents.
- Interest in establishing linkages with other park residents; and
in sharing non-proprietary, non-competitive Information and
resources with other park residents.
- Preparedness to contribute to an ATP operated data base of key
issues, outcomes, personnel, and methodologies used to promote
the tenant and the ATP nationally and internationally.
- Preparedness to participate in ATP sponsored functions wherein
results of developments and dissemination of information across
technology disciplines is the primary focus. Intended for the
park community.
- A preparedness to make use of park-provided services and
facilities where appropriate, in order to generate a sense of
community and cohesion within the park.
- Predisposition towards the use of Australian resources in
manufacturing or human resource requirements,
(d) ENVIRONMENTAL SUSTAINSABILITY
- Non-polluting, or demonstrated capacity to contain pollution and
sympathy towards ecologically sound practices.
- A positive approach to, and support for energy management and
conservation.
(e) Education
- Interest in shaping educational curriculum, and preparedness to
participate in formal education skills based programs to promote
technological Involvement in industry.
(F) MARKETING
- Willingness to credit the ATP where appropriate in written or
other submissions to promote the ATP as a centre of pre-eminent
development and research.
- Commitment to contribute in a meaningful way to a newsletter (in
written, electronic, or other form) published by the ATP from
time to time for local, national or international distribution.
- Interest in maintaining and enhancing the park's reputation and
image.
- Interest in marketing the park, including welcoming park visitors
(by appointment).
- Interest in facilitating the attraction of other organisations to
the park, particularly those where a relationship already exists.
- Acceptance that "Australian Technology Park" will form part of
the address of the tenant;
"PARK COMMON AREAS" includes those parts of the Park denoted "PUBLIC
RECREATION"; "PUBLIC OPEN SPACES AND SHARED ZONES"; "ROADS"; and "POSSIBLE
COMMUNITY FACILITIES" on the Plan "Land Uses" annexed to the Agreement for
Lease between Us as tenant and City West Development Corporation dated 21
December 1995, that are not or are not intended to be leased or licensed to
a person for the separate occupation of that person as tenant or licensee;
----------
(1) IT SHOULD BE NOTED THAT FOR SOME PRODUCT CATAGORIES THERE IS LITTLE
DIFFERENCE BETWEEN PILOT OPERATIONS AND FULL SCALE COMMERCIAL PRODUCTION.
SUCH CASES WILL BE ASSESSED ON THEIR INDIVIDUAL MERITS.
2 June 2006
DECEMBER 2006 EDITION
Page 30
"PERMITTED USE" means the use in Item 12;
"PREMISES" means that part of the Building described in Item 4, the
boundaries of which are:
(a) the inside surface of the walls (under any paint or wall covering);
(b) the outside surface of any windows;
(c) the lower surface of the ceiling (above any false or suspended
celling); and
(d) the upper surface of the floor (under any floor covering);
Including Our Property;
"PREVIOUS CPI" means the Consumer Price Index number for the quarter ending
immediately before the date on which the licence fee was last reviewed
before the relevant CPI Adjustment Date (or if It has not been reviewed the
Commencing Date);
"REFERENCE SCHEDULE" means the reference schedule to this Licence;
"RULES" means the Rules set out in Annexure "C" and includes any rules of
the Building as made or varied under this Licence;
"SECURITY DEPOSIT" means the amount in Item 17;
"SERVICES" means the services to or of the Building provided by authorities
or by Us (including but not limited to water electricity gas oil air
conditioning garbage illumination toilets (and toilet supplies) fire data
communications sewerage trade waste and lifts);
"TERMINATING DATE" means the date in Item 6;
"VALUER" means a fellow or an associate of not less than five (5) years'
standing, of the Australian institute, active in the relevant market at the
time of his appointment and with at least five (5) years' experience in
valuing the Kind of premises licensed by this Licence;
"We" means the person described in Item 1 and where relevant includes Our
manager employees and any person We authorise;
"You" means the person described in Item 2 and where relevant includes Your
employees agents contractors and invitees;
"YOUR BUSINESS" means the business carried on by You from the Premises;
"YOUR PROPERTY" means all property within the Premises which is not Our
Property;
"YOUR SHARE" means for an Outgoings Year an amount (expressed in dollars)
calculated by the formula:
P x N x O
---------
D
Where:
P = the proportion (expressed as a percentage) obtained by dividing the
Lettable Area of the Premises by the Lettable Area of the Commercial
Areas of the Building being the percentage in Item 11 (as varied);
N = the number of days of this Licence in total Outgoings Year;
O = the Outgoings for that Outgoings Year; and
D = the number of days in that Outgoings Year.
25.2 Unless the contrary intention appears;
(a) the singular Includes the plural and vice versa;
(b) person includes a firm a body corporate an unincorporated association
or an authority;
(c) You includes Your and We includes Us and Our;
2 June 2006
DECEMBER 2005 EDITION
Page 31
(d) an agreement representation or warranty:
(i) in favour of two or more persons is for the benefit of them
jointly and severally; and
(ii) on the part of two or more persons binds them jointly and
severally; and
(e) a reference to:
(i) a person includes the person's executors administrators
successors substitutes (including but not limited to persons
taking by novation) and assigns;
(ii) a document includes any variation or replacement of it;
(iii) a law includes regulations and other instruments under it and
amendments or replacements of any of them;
(iv) a thing includes the whole and each part of it;
(v) a date includes that date;
(vi) a group of persons includes all of them collectively any two or
more of them collectively and each of them Individually; and
(vii) the president of a body or authority includes any person acting
in that capacity.
25.3 If You may not do something in connection with this Licence You may not do
anything which may result in it happening.
26. NOTICES AND APPROVALS
26.1 A notice or approval must be:
(a) in writing; and
(b) delivered to the party or left at or posted by certified mail to the
address or sent to the facsimile number of the party in Item 15 as
varied by notice.
26.2 A notice or approval is taken to be given:
(a) if delivered to or left at the address of the party, on that day:
(b) if posted, on the third day after posting; and
(c) if sent by facsimile on that day, if it is sent before 5:00pm, or
otherwise on the next business day after it is sent unless the sender
is aware that transmission is impaired.
27. MISCELLANEOUS
27.1 WAIVER AND VARIATION
(a) A provision of or a right under this Licence may not be waived or
varied except in writing signed by whoever is to be bound.
(b) An attempt by Us to mitigate Our loss is not a surrender of this
Licence. It is not a waiver of any breach or of Our rights under this
Licence If We:
(i) accept licence fee or other money under this Licence (before or
after termination);
(ii) do not exercise or delay exercising any right under clause 20;
(iii) give any concession to You; or
(iv) attempt to mitigate Our loss.
2 June 2006
DECEMBER 2005 EDITION
Page 32
27.2 APPROVALS
We may give conditionally or unconditionally or withhold Our approval In
Our absolute discretion unless this Licence expressly says otherwise.
27.3 PRIOR BREACHES
Expiry or termination of this Licence does not affect any rights in
connection with a breach of this Licence before then.
27.4 CAVEATS
You must not lodge a caveat on the title to the Land.
27.5 WARRANTIES AND UNDERTAKINGS
(a) You warrant that You have:
(i) relied only on Your own enquiries in connection with this Licence
and not on any representation or warranty by Us or any person
acting or seeming to act on Our behalf; and
(ii) notice of the Rules current when signing this Licence.
(b) You must comply on time with undertakings given by You or on Your
behalf in connection with this Licence.
27.6 COUNTERPARTS
This Licence may consist of a number of counterparts and the counterparts
taken together constitute one and the same Instrument.
27.7 SEVERABILITY
If any provision of this Licence is or becomes invalid or unenforceable or
both all other provisions which are capable of separate enforcement without
regard to the invalid or unenforceable provision are and continue to be
valid and enforceable.
27.8 GOVERNING LAW
This Licence is to be governed by construed and take effect in accordance
with the laws of
New South Wales and the parties irrevocably and
unconditionally submit to the exclusive jurisdiction of the courts of
New
South Wales.
27.9 DEED
This Licence is a deed.
2 June 2006
DECEMBER 2005 EDITION
Annexure "C" to the Deed of Licence between AUSTRALIAN TECHNOLOGY PARK PRECINCT
MANAGEMENT LIMITED (ACN 060 969 119) and ENGANA PTY LIMITED (ACN 098 184 582) of
Xxxxx 0, X00, X00, X00 & X00, Xxxxxxxxxx Workshop, Australian Technology Park,
Eveleigh, dated the ______________ day of June, 2006
RULES
Each occupier ("Licensee") must comply with the following rules.
In these rules:
"INVITEES" means the Licensee's officers, employees, clients, customers, agents,
contractors and invitees;
"PARKING AREA" means a part of the Park (Including a building) designated as a
Parking Area for Motor Vehicles;
"PREMISES" includes any licensed areas which the Licensee is permitted to use.
1. OBSTRUCTION OF ACCESS WAYS
1.1 The Licensee or its invitees must not in any way obstruct or permit the
obstruction of the pavements, driveways, entrances, corridors, lifts,
stairways, fire doors and escape doors relating to the Building or use them
for any purpose other than for access to and egress from their respective
Premises.
2. OBSTRUCTION OF LIGHT OR AIR
2.1 The Licensee must not cover or obstruct the skylights, glazed panels,
ventilators, airconditioning ducts and outlets or windows that reflect or
admit light or air into the stairways or corridors or into any part of the
Building, or cover or obstruct any lights or any other means of
Illumination in the Building.
3. RECEPTION
3.1 The reception area of the Licensee's Premises must be kept neat and clean
and attended during Normal Business Hours.
3.2 The Licensee must not permit any goods, structures, shelving or fittings to
be visible through the glass of any Common Area corridor or dividing
partition.
4. WINDOWS
4.1 The windows in the Building must not be opened by the Licensee or its
invitees.
4.2 No window blind, window screen, awning or floor covering may be erected or
installed without the prior written approval of the Licensor.
4.3 To ensure the designed performance of the airconditioning equipment the
Licensee must keep in the proper operational position (as determined by the
Licensor from time to time) any window, curtains, blinds, awnings or other
coverings or devices installed or used for the purpose of reflecting or
excluding solar heat or light.
5. SIGNS
5.1 The Licensee must not paint, display or affix any sign, advertisement, name
flagpole, flag or notice on any part of the outside or inside of the
Building except with the prior written consent of the Licensor and then
only of a colour, size and style and in 8 place or places as are first
approved by the Licensor.
6. DIRECTORY BOARDS
6.1 The Cost of affixing the Licensee's name on directory boards in the main
foyer and on each floor must be paid by the Licensee.
2 June 2006
DECEMBER 2005 EDITION
Page 34
6.2 The Licensee's name on each directory board will be in a style and colour
determined, after consultation with the Licensee, from time to time by the
Licensor.
7. COMMUNICATIONS EQUIPMENT
7.1 No telephone, television, radio or other communication mast, antenna,
transmitter or dish may be affixed to any part of the Licensee's Premises
or the Building without the prior consent in writing of the Licensor.
7.2 No radio or television receiver, loud speaker, amplifier or other similar
device may be used or operated within the Licensee's Premises so that the
sound may be heard in any part of the Common Areas or in premises licensed
to other occupiers.
8. KEEPING OF ANIMALS
8.1 Animals or birds must not be kept in the Licensee's Premises or the
Building without the Licensor's written consent, which may be refused in
the Licensor's absolute discretion.
9. RUBBISH AND WASTE MANAGEMENT
9.1 The Licenses and its invitees must not throw anything out of the windows or
doors or over the balcony of any patio/balcony area, or down any elevator
shaft, passage or skylight or into any Common Area of the Building or
deposit waste paper or rubbish anywhere except in proper receptacles, or
place upon any sill ledge or other similar part of the Building Common
Areas or patio areas any article or substance.
9.2 No rubbish or waste may at any time be burned by the Licensee in the
Building or on the Land.
9.3 The Licensee must manage its waste in accordance with a waste management
plan approved by the Licensor. The waste management plan is to detail the
process of waste minimisation and shall include procedures by which waste:
(a) is to be minimised and managed within the Premises and, if more than
one (1) floor, each individual floor of the Premises;
(b) which is recyclable is separated from other garbage;
(c) is to be transferred to the garbage and recycling storage and
collection areas of the Building; and
(d) which is commercial waste is separated from non-commercial waste, if
applicable;
9.4 The Licensee will participate in any recycling program which the Licensor
conducts at the Building.
10. HEATING AND LIGHTING
10.1 The Licensee must not use any method of lighting cooling or heating the
Licensee's Premises other than as prescribed by the Licensor or by special
agreement made with the Licensor.
10.2 This rule will not prevent the use of emergency auxiliary power or lighting
approved by the Licensor during any period of power failure or power
restriction,
11. DELIVERIES
11.1 The Licensee must use for the receipt or delivery of any goods, wares or
merchandise only such parts of the Building and the Common Areas designated
by the Licensor, and at times and in the manner as the Licensor may from
time to time direct.
12. LOCK UP
12.1 The Licensee must not leave any doors or windows unlocked or unfastened
when the Licensee's Premises are unoccupied. The Licensor reserves the
right for the Licensor's caretaker/security officer or other authorised
person to enter the Licensee's Premises and lock or fasten the doors and
windows.
2 June 2006
DECEMBER 2005 EDITION
Page 35
13. AUCTIONS
13.1 The Licensee must not conduct or permit to be conducted on the Licensee's
Premises or in the Building any auction, closing down, liquidation or
similar sale.
14. USE OF COMMON AREAS
14.1 The Licensee must not use or permit to be used any part of the Common Areas
for any business or commercial purpose or for the display or advertisement
of any goods or services without the prior consent of the Licensor.
15. NO NAILS
15.1 No nails, screws or hooks may be driven into any part of the Building or
the walls, ceiling or partitions in the Licensee's Premises without the
Licensor's prior written consent.
15.2 The Licensee must not use any explosive tool or power driven method of
fixing articles to walls, ceilings, partitions or floors.
16. SECURITY
16.1 On written application by the Licensee a security access card or security
pass will be issued enabling the Licensee or its invitees to enter and
depart from the Building while closed.
16.2 The Licensor may require a deposit or bond as security for the return or
duplication of lost keys or security access cards.
16.3 The Licensee must not permit the keys or security access cards at any time
to come into the possession of any person other than the Licensee and its
invitees.
16.4 No person will be allowed to enter the Building while closed without
producing a security access card issued by, or with the authority of, the
Licensor.
16.5 Any person found in the Building outside the hours specified without a
security access card may be removed from the Building and the Park by the
Licensor's security officer.
16.6 The Licensor reserves the right to cancel or amend the security access card
of any Licensee's employee who breaches these rules or the Licensee's
Licence.
16.7 The Licensor will not be liable for non-enforcement of this rule against a
particular person.
16.8 The Licensee must return to the Licensor on the termination of the Licence
all keys, security access cards or security passes, whether supplied by the
Licensor or otherwise acquired by the Licensee.
17. USE OF TOILETS, SINKS, ETC
17.1 Toilets, wash basins, sinks, drains and similar facilities ("facilities")
must not be used for any purpose other than the purpose for which they were
constructed, and tea leaves, sweepings, rubbish, rags, ashes or other
substances must not be placed in them.
17.2 The cost of rectifying any damage caused to the facilities from misuse by
any Licensee or its invitees will be borne by the Licensee who, or whose
invitee has, caused it.
17.3 If the person responsible for the damage to the facilities cannot be
determined, the licensees on the floor concerned will bear the cost of
repair according to their proportion of the net lettable area on that
floor.
18. INSPECTIONS
18.1 The Licensee will at all reasonable times permit the Licensor to show
prospective licensees or purchasers through the Licensee's Premises and the
Building, and will at all times within the three (3) months immediately
preceding the termination of the Licensee's Licence allow the Licensor to
affix and exhibit where the Licensor thinks fit the usual "For Licence"
signs.
2 June 2006
DECEMBER 2005 EDITION
Page 36
18.2 The Licensee must not move or remove any "For Sale" or "For Licence" signs.
19. HEAVY ITEMS
19.1 No heavy items (including safes) may be placed or stored on the floor of
the Licensee's Premises without the prior consent in writing of the
Licensor, and the Licensor may prescribe their maximum weight and proper
position.
19.2 All damage done to the Building by heavy items must be rectified and paid
for by the Licensee who causes it.
19.3 Before any safe or any other heavy item is moved into, out of or within the
Building, prior notice must be given by the Licensee in writing to the ATP
security office. The moving may only be done under the direction and
supervision of the ATP security officer.
20. CLEAN
20.1 The Licensee must keep its Premises in a good state of preservation and
cleanliness and must not allow any accumulation of useless property or
rubbish.
21. NOISE
21.1 The Licensee and its invitees must not make or permit any improper noises
in the Licensee's Premises or in the lifts, stairways and corridors of the
Building which may disturb or interfere in any way with other licensees or
their invitees.
22. WIRELESS POLICY
22.1 Any electronic receiving and/or transmitting device that broadcasts
signals, includes all types of protocols in all spectrums including
Bluetooth and wireless, that can be intercepted or seen by the general
public or other members of the ATP community, which extend beyond, and are
not contained totally within, any tenancy boundary, must at all times
comply with the ATP's wireless policy, in force from time to time.
23. SMOKE FREE BUILDING
23.1 The Building is a smoke free Building. The Licensee or any of its invitees
must not smoke in the Building including the Licensee's Premises, the
Common Areas, the basement or any other part of the Building.
24. EMERGENCIES
24.1 If there is any risk or danger in any part of the Licensee's Premises or
the Building, the Licensee and its invitees must promptly obey the
instructions of the ATP security officer, or of the police, fire brigade or
other emergency authority. Those instructions may include to leave the
Licensee's Premises or the Building.
24.2 The Licensee and its invitees must not re-enter the Licensee's Premises or
the Building following an evacuation unless the ATP security officer, the
police, the fire brigade or other emergency authority has confirmed it is
safe to do so.
24.3 The Licensee and its invitees must observe and obey all fire and emergency
drills and Building evacuation procedures.
24.4 The Licensee must be fully aware of all safety and emergency procedures and
will, if required by the Licensor, designate a specific safety officer for
this purpose.
25. PEST CONTROL
25.1 The Licensee must keep its Premises free of rodents, pests, insects,
termites and vermin and must effect and maintain with a contractor approved
by the Licensor a contract for the annual inspection of and, as
appropriate, treatment to the Premises. The Licensee must provide to the
Licensor when requested evidence of such contract, inspections and
treatment.
2 June 2006
DECEMBER 2005 EDITION
Page 37
26. SECURITY GUARDS
26.1 The Licensee must not at any time engage or hire or allow on the Premises,
the Building or the Park any armed security guards.
27. PARKING
27.1 The Licensee and its invitees may only use the Parking Area(s) for the
parking of motor vehicles and for no other purpose and must comply with and
observe all traffic control devices and signs installed on the Park.
2 June 2006
DECEMBER 2005 EDITION
Annexure "D" to the Deed of Licence between AUSTRALIAN TECHNOLOGY PARK PRECINCT
MANAGEMENT LIMITED (ACN 060 969 119) and ENGANA PTY LIMITED (ACN 098 184 582) of
Xxxxx 0, X00, X00, X00 & X00, Xxxxxxxxxx Workshop, Australian Technology Park,
Eveleigh, dated the ____________ day of June, 2006
SPECIAL CONDITIONS
1. COMPLETION OF LICENCE
We or Our solicitors must:
(a) complete the Licence by filling in blanks including, without
limitation, those for the title reference of the land, the
commencement and termination dates; and
(b) do everything necessary to stamp (if not stamped by You) the Licence
and return Your copy to You or Your solicitor.
2. PARTIES BOUND
Both of us are bound by the Licence from and including the Commencement
Date, even though one of Us may not have executed the Licence or it may not
have been completed in accordance with Special Condition 1.
3. FINISHES TO PREMISES PROVIDED BY LICENSOR
At the Commencement Date of the Original Licence, We will provide the
following finishes and services to the Premises:
(a) painted perimeter walls;
(b) forty ounce (40oz) carpet;
(c) suspended ceiling and ceiling tiles;
(d) standard office lighting to an average of three hundred and fifty
(350) lux (open spaces Standard);
(e) fire sprinklers in accordance Building Code of Australia (open spaces
Standard);
(f) airconditioning registers (open spaces Standard);
(g) access to hydraulic services at limited distribution points;
(h) access to electrical supply at electrical distribution board for
relevant level;
(i) access to telephone and data cabling at distribution board for
relevant level.
We do not have to supply carpet to the Premises or to the Common Areas of
the Building until we are satisfied works in the vicinity of carpeted areas
have been completed and installed carpet will not be damaged.
4. LICENSEE'S WORKS
(a) Licensee's Works
Your Works will include:
(i) power distribution from electrical distribution board to Premises
and internal distribution within Premises;
(ii) hydraulic services (if required) from ground floor distribution
point to Premises and reticulation within Premises;
(iii) telephone and data cabling from ground floor distribution point
to Premises and reticulation within Premises;
(iv) internal walls and partitions;
(v) additional ceiling finishes to suspended ceilings;
2 June 2006
DECEMBER 2005 EDITION
Page 39
(vi) adjustments and additions to light fittings within Premises;
(vii) adjustments and additions to fire sprinkler system in accordance
with Building Code of Australia (partitioned premises Standard);
(viii) adjustments, additions and balancing of airconditioning system
to suit Licensee's partitioning placement and occupational
requirements;
(ix) other internal fitout, equipment, painting and finishes to
Licensee's occupational requirements.
(b) Conditions of Approval
You are responsible for complying with the conditions of any
Development Consent, Building Approval or other approval or licence
necessary for Licensee's Works or the Permitted Use.
(c) Part 4A Certificates
For the purpose of Part 1_ it is mandatory for You to engage an
accredited certifier who will be the principal certifying authority
for the purposes of, and issue all certificates required for Your
works under Part 4A of the Environmental Planning and Assessment Xxx
0000. These certificates include a construction certificate for Your
works. The accredited certifier will charge You fees for providing the
Part 4A certificates. When We ask You, You must give us evidence You
have engaged an accredited certifier. If You fall to comply with this
clause 4(c) we can terminate this Licence.
(d) Indemnities
(i) From commencement of Licensee's Works until they are completed,
You are liable for and release and indemnify Us against any
liability or loss arising from, and any costs, charges and
expenses incurred in connection with:
A. damage to or loss of anything; and
B. injury to or the death of any person;
caused by Your act, neglect or default, or of Your Employees and
Agents.
(ii) Each indemnity in this deed is a continuing obligation, separate
and independent from Your other obligations under the Licence and
survives expiry or termination of this deed. It is not necessary
for Us to incur expense or make payment before enforcing a right
of indemnity conferred by this deed.
(e) Completion of Licensee's Works
(i) Promptly after You consider the Licensee's Works are completed,
You must procure Your architect to issue to both Us and to You a
Certificate that the Licensee's Works have been completed in
accordance with the Building Plans and the Licensee's approvals.
The Licensee's Works are taken to be completed on the day Your
architect issues the Certificate of Completion of Licensee's
Works. Your architect must issue the certificate of completion of
Licensee's Works promptly as soon as the Licensee's Works have
been completed.
(ii) Promptly after the Licensee's Works are completed You must;
A. obtain in respect of them all certificates from relevant
authorities evidencing compliance with laws and
requirements; and
B. remove all refuse in connection with the Licensee's Works
from the Land, the Building and the Premises; and
C. provide Us with a certified set of "As Constructed"
drawings.
2 June 2006
DECEMBER 2005 EDITION
Page 40
PLAN
SHOWING NET LETTABLE AREAS
BAY 9 (NORTH) - GROUND FLOOR
LOCOMOTIVE WORKSHOP
AUSTRALIAN TECHNOLOGY PARK
CITY OF SOUTH SYDNEY
1:250
[GRAPHIC]
AREAS SHOWN HEREON REPRESENT THE NET LETTABLE
AREAS MEASURED & CALCULATED IN ACCORDANCE WITH
THE P.C.A. METHOD FOR THE MEASUREMENT OF BUILDINGS
(1997 REVISION)
X.X. XXXXXX & XXXX
XXXXXXXXX
XXXXX 0, XXXXX 0
00 XXXXXX XXXXXX,
XXXXXX
REF. 68497 DATE 27/2/98
P.W. Rygate & West
--------------------------
SURVEYORS
2 June 2006
DECEMBER 2005 EDITION
Page 41
PLAN
SHOWING NET LETTABLE AREAS
PART BAY 9 (NORTH) - GROUND FLOOR
LOCOMOTIVE WORKSHOP
AUSTRALIAN TECHNOLOGY PARK
CITY OF SOUTH SYDNEY
1:250
[GRAPHIC]
W - DENOTES INSIDE FACE OF WALL
AREAS SHOWN HEREON REPRESENT THE NET LETTABLE AREAS
MEASURED & CALCULATED IN ACCORDANCE WITH
THE P.C.A. METHOD FOR THE MEASUREMENT OF BUILDINGS
(1997 REVISION)
X.X. XXXXXX & XXXX
XXXXXXXXX
XXXXX 0, XXXXX 0
00 XXXXXX XXXXXX,
XXXXXX
REF. 68626 DATE 20/4/2001
P.W. Rygate & West
--------------------------
SURVEYORS
2 June 2006
DECEMBER 2005 EDITION
Annexure "E" to the Deed of Licence between AUSTRALIAN TECHNOLOGY PARK PRECINCT
MANAGEMENT LIMITED (ACN 060 969 119) and ENGANA PTY LIMITED (ACN 098 184 582) of
Xxxxx 0, X00, X00, X00 & X00, Xxxxxxxxxx Workshop, Australian Technology Park,
Eveleigh, dated the ____________ day of June, 2006
AUSTRALIAN TECHNOLOGY PARK PRECINCT
------------------------------------- MANAGEMENT LIMITED (ACN 060 969 119) by
SIGNATURE OF WITNESS its Attorney, XXXXXX XXXX, Managing
Director, pursuant to Power of Attorney
registered Book 4384 No 561
_____________________________________
NAME (PLEASE PRINT)
_____________________________________ ________________________________________
ADDRESS XXXXXX XXXX
EXECUTED on behalf of ENGANA PTY )
LIMITED (ACN 096 184 582) by the )
authorised persons whose signatures )
appear below pursuant to section 127 )
of the Corporation Xxx 0000:
------------------------------------- ----------------------------------------
SIGNATURE OF THE AUTHORISED PERSON SIGNATURE OF THE AUTHORISED PERSON
_____________________________________ ________________________________________
NAME (PLEASE PRINT) NAME (PLEASE PRINT)
_____________________________________ ________________________________________
OFFICE HELD OFFICE HELD
2 June 2006
DECEMBER 2005 EDITION
[AUSTRALIAN Technology Park PRECINCT MANAGEMENT LTD LOGO]
AUSTRALIAN TECHNOLOGY PARK PRECINCT
MANAGEMENT LIMITED
(ACN 060 969 119)
and
ENGANA PTY LIMITED
(ACN 098 184 582)
---------------
DEED OF LICENCE
---------------
LOCOMOTIVE WORKSHOP
SUITE 9/ G01, G02, G03 AND G04
CKC0203101
AUS291/259
XXXXX XxXXXXXXX, XXX
_______________
Xxxxx 00, __ Xxxxx
0 Xxxxxx Xxxxxx
Xxxxxx XXX 0000
XX Xxx X0000
XXX XXX 0000
XX 0000 Xxxxxx
Telephone (00) 0000 0000
Facsimile (00) 0000 0000
Email xxxx@xxxxx.xxx.xx
URL xxx.xxxxx.xxx.xx
