Australia-NSW-Milsons Point-68 Alfred Street Car Parking Licence Agreement - Tonicalon Pty Ltd. and LookSmart International Pty Ltd.
DATED DAY OF 1999
BETWEEN
-------
TONICALON PTY LIMITED
("the Licensor")
of the one part
AND
LOOKSMART INTERNATIONAL PTY LIMITED
("the Licensee")
of the other part
CAR PARKING LICENCE AGREEMENT
PREPARED IN CONJUNCTION WITH LEASE FOR PART LOT 7 SP 56293
BUILDING: 68 ALFRED STREET, MILSONS POINT
NO. OF SPACES: TWO (2)
M.C. ANTUNES
LAWYERS AND ADVOCATES
Ground Floor
53 Walker Street
NORTH SYDNEY NSW 2060
AUSTRALIA
Tel: (02) 9964 0499
Fax: (02) 9964 0626
DX: 10524 NORTH SYDNEY
REF: GP:99162
<PAGE>
THIS DEED made the day of 1999.
BETWEEN TONICALON PTY LIMITED (ACN 063 619 125) a company duly
-------
incorporated in New South Wales and having its registered office
at 1st Floor, 1049 Victoria Road, West Ryde in the said State
(hereinafter called "the Licensor") of the one part
AND LOOKSMART INTERNATIONAL PTY LIMITED (ACN 074 789 263) a company
---
duly incorporated Victoria and having its registered office at
Level 5, 388 Lonsdale Street, Melbourne in the said State
(hereinafter called "the Licensee") of the other part
WHEREAS the Licensee has requested the Licensor to grant to the Licensee
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permission to park a motor vehicle on the basement floors (hereinafter called
"the Car Parking Area") of the building situate at 68 ALFRED STREET, MILSONS
POINT (hereinafter called "the Building") which the Licensor has agreed to do
upon the terms and subject to the conditions hereinafter set forth
NOW THIS DEED WITNESSETH:
-------------------------
1. The Licensor grants to the Licensee licence and privilege to park not more
than TWO (2) MOTOR VEHICLE (the tare weight or any of each such motor
vehicle not to exceed thirty (30) hundredweight) at any one time in the Car
Parking Area in or upon such spaces therein as may be specified from time
to time by the Licensor.
2. The Licensee its employees servants and agents (and visitors as
hereinbefore stated) shall enter and leave the Building by such entrances
and exits as the Strata
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2
Manager for SP No. 56293 ("the Strata Manager") may from time to time
determine.
3. (a) This Licence shall be for the period from month to month until
determined at any time by either the Licensor or the Licensee by
giving to the other of them one (1) month's previous notice in
writing.
(b) The Licensee shall pay to the Licensor or as the Licensor shall direct
a licence fee of $350.00 per calendar month for each motor vehicle
(making a total of $700.00 per calendar month) payable by CALENDAR
MONTHLY INSTALMENTS in advance on the FIRST day of each and every
month (and proportionately for any part of a month) the first of such
payments to be made on 1 JUNE 1999 (hereinafter called "the
commencement date").
4. The Licensee shall keep a record (and if so required from time to time
shall supply thereof to the Licensor) of the registration numbers of the
motor vehicle using the parking space the subject of the Licence hereby
granted on each day during the continuance of the Licence.
5. The Licensee shall not introduce into, do or suffer to be done by itself,
its employees or visitors any act matter or thing within the Building or
keep anything in the said motor vehicle or otherwise within the Car Parking
Area which shall or may increase the rate of fire insurance in respect
thereof or (without limiting the generality of the foregoing) which may
conflict with the laws or regulations relating to fires or any insurance
policy over any part of the Building or any property therein or the
regulations or ordinances of any public authority or the by-laws of the
Owners Corporation in SP56293 or any direction from the Strata
<PAGE>
3
Manager or the provisions of any statute for the time being in force.
6. The Licensee shall not clean, grease, oil, repair or wash any motor vehicle
in the Car Parking Area or any part thereof.
7. No vehicle shall be driven within the Car Parking Area at a speed in excess
of eight (8) K.P.H.
8. The Licensor shall not be responsible for any damage to or theft of any
motor vehicle or any part of parts thereof or the contents of any motor
vehicle which is parked in the Car Parking Area or which is otherwise
within the Building and the Licensee undertakes to indemnify the Licensor
in respect of any claim or claims made as a result of any damage to or
theft of any Licensee's motor vehicle or any part thereof or the contents
of any Licensee's motor vehicle parked in the Car Parking Area or otherwise
within the Building.
9. (a) The Licensee shall indemnify and keep indemnified the Licensor from
and against:-
(i) all claims demands writs summonses actions, suits proceedings
judgments orders decrees damages costs losses and expenses of any
nature whatsoever which the Licensor may suffer or incur in
connection with loss of life, personal injury and/or damage to
property arising from and out of any occurrence in, upon or at
the Car Parking Area or the use of the Car Parking Area or any
part thereof by the Licensee or by any of the Licensee's
employees, servants or agents;
(ii) all loss and damage to the Car Parking Area to the Building and
to
<PAGE>
4
all property therein cause by the Licensee or the Licensee's
employees, servants, agents or visitors, whether arising out of
the use of a motor vehicle or otherwise.
10. This Licence may be determined by the Licensor by 14 days notice in writing
upon default by the Licensee in the performance or observance of any
covenant or agreement:-
(i) on the part of the Licensee under this Licence; or
(ii) on the part of the Licensee as Lessee under its Lease.
11. This Licence shall not confer any right of exclusive occupation of all or
any particular car parking space within the Car Parking Area and the
Licensor may at any time and at all times and from time to time exercise
all it's rights as owner of the Building and may at any time and from time
to time vary the particular parking space(s) occupied by the Licensee and
the Licensee shall not be entitled to make any objection or claim for
compensation in respect of such alteration.
12. Notwithstanding anything contained in Clause 4 the Licensor shall have the
right to review the monthly fee every month and to determine a reasonable
monthly fee which the Licensor considers to be a current market fee for the
privileges hereby granted. Upon such determination by the Licensor and
notification thereof to the Licensee the Licensee shall pay the licence fee
so determined as and from the date so notified.
13. The Licensor may deliver up the vehicle from time to time parked pursuant
hereto to any person producing this Licence or offering such other evidence
of ownership or authority to receive the said vehicle as the Licensor may
in its absolute and
<PAGE>
5
unfettered judgment deem satisfactory.
14. No modification or variation of any term or condition hereof shall be made
unless evidenced in writing signed by the Licensee and by the Licensor.
15. The Licensee acknowledges that no representations or warranties have been
made to the Licensee by the Licensor with respect to the foregoing terms
and conditions and that the Licensee has not entered into any collateral
agreement or warranty with respect to the matters referred to in this
Licence.
IN WITNESS WHEREOF the parties hereto have executed this Deed on the date first
hereinbefore written.
TONICALON PTY LIMITED
ACN 063 619 125 by its
Attorney MARGARET ANTUNES
pursuant to registered Power
of Attorney Book 4081 No 203.
...................................
Margaret Antunes
...................................
Witness
<PAGE>
6
[STAMP OMITTED]
THE COMMON SEAL of )
LOOKSMART INTERNATIONAL )
PTY LIMITED ACN 074 789 263 )
is affixed in accordance with )
its articles of association in )
the presence of: )
/s/ Tracey Ellery
Signature of Director
TRACEY ELLERY
-------------
Name of Director
(print)
/s/ Evan Thornley
Signature of Secretary
EVAN THORNLEY
-------------
Name of Secretary
(print)
<PAGE>
Form: 97-07L LEASE
Licence: MID/0750/97 New South Wales
Real Property Act 1900
Office of State Revenue use only
(A) PROPERTY LEASED
If appropriate, specify Office premises situate at level 3, 68 Alfred
Street, the part or premises. Milsons Point, being Part Lot 7 in Strata
Plan 56293 being Part 7/SP56293
(B) LODGED BY LTO Box Name, Address or DX And Telephone
Reference (15 character max):
(C) LESSOR TONICALON PTY LIMITED (ACN 063 619 125)
The lessor leases to the lessee the property described above.
(D) Encumbrances (if applicable): 1. 2. 3.
(E) LESSEE
L LOOKSMART INTERNATIONAL PTY LIMITED (ACN 074
789 263) OF LEVEL 5, 388 LONSDALE STREET,
MELBOURNE 3000
(F)
(G) 1. TERM: Three (3) years
2. COMMENCING DATE: 1 June 1999
3. TERMINATING DATE: 31 May 2002
4. With an OPTION TO RENEW for a period of THREE (3) years set out
in clause B.2
5. With an OPTION TO PURCHASE set out in (NOT APPLICABLE)
6. Together with and reserving the RIGHTS set in Annexure "A".
7. Incorporates the provisions set out in ANNEXURE "B" hereto.
8. Incorporates the provisions set out in (NOT APPLICABLE)
PAGE 1 OF 2
<PAGE>
<TABLE>
<S> <C>
(H) We certify this dealing correct for the
purposes of the Real Property Act 1900. DATE__________
Signed in my presence by the Lessor who is personally known to me.
TONIC. LON PTY LIMITED (ACN 063 619 125) by
________________________________________
Signature of Witness its attorney MARGARET ANTUNES pursuant to
Power of Attorney Book 4081 Number 203
________________________________________
Name of Witness (BLOCK LETTERS)
________________________________________ ____________________________________________
Address of Witness MARGARET ANTUNES
THE COMMON SEAL of LOOKSMART )
INTERNATIONAL PTY LIMITED )
(ACN 074 789 263) was hereunto affixed in )
accordance with the memorandum and articles of )
association:
________________________________________ ____________________________________________
Secretary Director
(I) STATUTORY DECLARATION
I solemnly and sincerely declare that: the time for the exercise of Option
to Renew/Purchase in expired lease No. ______ has ended; the lessee under
that lease has not exercised the option; and a variation of lease extending
the term has not been entered into. I make this solemn declaration
conscientiously believing the same to be true and by virtue of the Oaths
Act 1900.
Made and subscribed at ______________ in the State of _____________ on
_______ 19 _____ in the presence of:
________________________________________
Signature of Witness
________________________________________
Name of Witness (BLOCK LETTERS)
________________________________________ ____________________________________________
Address and Qualification of Witness Signature of Lesser
</TABLE>
PAGE 2 OF 2
<PAGE>
THIS THE SCHEDULE REFERRED TO IN A LEASE BETWEEN TONICALON PTY LIMITED A.C.N.
-----------------------------------------------------------------------------
063 619 125
-----------
(LESSOR) AND LOOKSMART INTERNATIONAL PTY LIMITED A.C.N. 074 789 263 (LESSEE)
----------------------------------------------------------------------------
DATED this day of 1999
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58 ALFRED STREET, MILSONS POINT
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CERTIFICATE OF TITLE FOLIO IDENTIFIER PART 7/SP56293
----------------------------------------------------
<PAGE>
THIS IS ANNEXURE "A" REFERRED TO IN A LEASE BETWEEN TONICALON PTY LIMITED A.C.N.
--------------------------------------------------------------------------------
063 619 125
-----------
(LESSOR) AND LOOKSMART INTERNATIONAL PTY LIMITED A.C.N. 074 789 263 (LESSEE)
----------------------------------------------------------------------------
DATED the day of 1999
------------------------------------------------------------------------------
THE LESSOR RESERVES UNTO ITSELF AND THE OWNERS CORPORATION THE FOLLOWING RIGHTS
AND LIBERTIES:-
EXCEPTING AND RESERVING to the Lessor the right to maintain and repair or
replace all airconditioning, sprinkler, gas, water and other service pipes,
conduits, ducts or apparatus, electricity and telephone wires passing
through or situated on the Premises and the right to run water, oil, gas,
wastes and electricity in or through the said pipes, conduits, ducts and
wires to other parts of the Building.
<PAGE>
THIS IS ANNEXURE "B" REFERRED TO IN A LEASE BETWEEN TONICALON PTY LIMITED A.C.N.
--------------------------------------------------------------------------------
063 619 125
-----------
(LESSOR) AND LOOKSMART INTERNATIONAL PTY LIMITED A.C.N. 074 789 263 (LESSEE)
----------------------------------------------------------------------------
DATED the day of 1999
------------------------------------------------------------------------------
DEFINITIONS AND INTERPRETATIONS
-------------------------------
1. In the interpretation of this Lease except to the extent that such
interpretation shall be excluded by or be repugnant to the context when
used herein:
(a) "the lessor" shall means and include Tonicalon Pty Limited and its
assigns;
(b) "the Lessee" shall mean and include the Lessee or Lessees and if a
person or persons his or their respective executors administrators and
permitted assigns or if a company the Lessee and its permitted assigns
and where there are two or more Lessees, shall mean and include the
Lessees and each and every of them and each and every of their
executors administrators and permitted assigns;
(c) "the Lessee's employees and visitors" shall mean each and every of the
Lessee's clerks, servants, workmen, employees, agents, customers,
clients visitors and any other person or persons who may at any time
be on or upon the Premises;
(d) "the Premises" means the part of the Building hereby demised with all
rights hereby granted and subject to every covenant power and
provision herein contained or implied;
(e) "the Building" means 68 Alfred Street, Milsons Point; and
(f) "person" shall be deemed to include a corporation;
(g) "the Council" means the Council of North Sydney or any Authority for
the time being replaced or acting in the place and instead of that
Council.
(h) "Appendix" means the Appendix to this Annexure "B".
(i) "Strata Plan" means Strata Plan No. 56293.
(j) "Owners Corporation" means the Owners Corporation for Strata Plan No.
56293.
(k) "Strata Manager" means the managing agent appointed by the Owners
<PAGE>
PAGE 2
Corporation.
(l) "Common Property" means the common property of Strata Plan No. 56293.
(m) Any provision of this Lease to be performed by two or more persons
shall bind those persons jointly and severally.
(n) The index to this Lease and any headings in this Lease have been
inserted for convenience only and shall not in any way limit or govern
the construction of the terms of this Lease.
(o) Any reference in this Lease to any legislation or delegated
legislation shall be deemed to include all amendments and revisions
made from time to time to that legislation or delegated legislation.
(p) Any reference in this Lease to a "month" or "monthly" shall mean
respectively calendar month and calendar monthly.
(q) References to any Authority institute association or body whether
statutory or otherwise shall in the event of any such Authority
institute Association or body ceasing to exist or being reconstituted
renamed or replaced or the powers or functions thereof being
transferred to any other organisation be deemed to refer respectively
to the organization established or constituted in lieu of or
replacement for or which serves substantially the same purposes or
subjects of such authority institute association or body.
(r) Where the word "deleted" appears against a paragraph or clause number
in this Lease it shall indicate that the Clause in the draft Lease
upon which this Lease is based has been considered inappropriate to
this Lease.
(s) Words importing the singular or plural number shall be deemed to
include the plural or singular number respectively and words importing
the masculine gender only shall include the feminine or neuter gender
and vice versa as the case may require;
(t) When two or more persons are Lessees all covenants agreements
restrictions conditions and provisions shall bind the Lessee's and any
two or greater number of them jointly and each of them severally and
shall also bind the executors administrators and permitted assigns of
them and every two or greater number of them jointly and severally;
(u) "Item" means an Item on the Appendix.
(v) The words "review date" where used in this Lease means those dates
referred to in Item 6A.
<PAGE>
PAGE 3
(w) The expression "the Consumer Price Index number" where used in this
Lease shall mean the index number published quarterly by the
Australian Bureau of Statistics and known as the Consumer Price Index
for Sydney (All Groups) PROVIDED THAT should at any time the Consumer
Price Index number cease to be published then the Lessor and the
Lessee shall agree to replace the Consumer Price Index number with
such other index number as shall be published to replace the Consumer
Price Index number and in the absence of such agreement being reached
that other index number shall be as selected as being the index number
which most appropriately reflects fluctuations in the cost of living
in Sydney by the President for the time being of the Australian
Institute of Valuers and Land Economists (Inc) NSW Division or his
nominee whose fees shall be paid equally by the Lessor and the Lessee
and whose decision shall be made as an expert and not as an arbitrator
and shall be final and binding on both the Lessor and the Lessee.
A. EXCLUSION OF STATUTORY PROVISIONS
---------------------------------
The covenants powers and provisions implied in Leases by virtue of Sections
84, 84A, 85 and 86 of the Conveyancing Act 1919 as amended are hereby
expressly negatived.
B. TERM
----
B.1 This Lease shall commence on the date stated in Item 3 and shall terminate
on the date stated in Item 4.
B.2. If the Lessee desires to have a further Lease of the Premises granted to it
for the period stated in Item 5 after the expiration of the term hereby
demised and gives to the Lessor not more than nine (9) months' and not less
than six (6) months' notice in writing to that effect prior to the date
stated in Item 4 then (provided that at the date of the exercise of this
option and at the date of the expiration of the term hereby demised there
is no subsisting breach by the Lessee of the covenants terms conditions and
provisions herein contained) the Lessor shall grant to the Lessee a Lease
of the Premises for the period stated in Item 5 commencing on the day
following the date stated in Item 4 upon and subject to the same covenants
terms conditions and provisions contained in this Lease except that;-
(a) the dates to be inserted in Item 3 and 4 shall be the first and last
days of the said further term respectively;
(b) the amount of the base rent to be inserted in Item 6 shall be the base
rent determined in accordance with the formula pursuant to Clause C2
hereof;
<PAGE>
PAGE 4
(c) the review dates stated in ITEM 6B shall be substituted in that
further lease for the review dates stated in ITEM 6A;
(d) the provisions of Clause C.2 shall be substituted as follows:
(a) On the FIRST AND SECOND ANNIVERSARY of the commencing date,
the rent shall be subject to review and adjusted by
reference to the following formula:
The greater of:
(i) Adjusted rent = R x 12 x CPI(2)
--------
CPI(1)
where R = the monthly rent payable by the Lessee
immediately prior to the then applicable review
date;
CPI(1) = The Consumer Price Index ending
immediately prior commencement date or
the review date as the number for the
quarter to the later of the immediately
preceding case may be.
CPI(2) = The Consumer Price Index ending
immediately prior review date. number for
the quarter to the then applicable
or
(ii) the base rent payable immediately prior to the relevant
date for review of rent increased by THREE PER CENTUM
(3%).
(b) Deleted.
(c) Deleted.
(e) The covenants by the Lessee in Clause C1 shall apply from time to time
as if the base rent for the time being applicable under this Clause
were the base rent stated in ITEM 6."
(f) the provisions of Clause P shall be omitted from such further Lease
and the following Clause P shall be substituted in its place:
"P.01 The Lessee acknowledges that pursuant to the terms of
<PAGE>
PAGE 5
Clause P of the Lease immediately preceding this Lease, the
Lessee/Lessor fitted out the Premises (such fitout being
hereinafter called "the Works") on the basis that upon the
expiration or earlier determination of that Lease, the
lessor could require the lessee to remove the whole or any
part of the Works and to reinstate the Premises, unless the
Lessee exercised any option for renewal therein contained.
P.02 This Lease is granted pursuant to such exercised option and
the Lessee accordingly hereby agrees with the Lessor that
upon the expiration or earlier determination of this Lease,
the Lessor shall be entitled to require the Lessee at the
Lessee's expense to reinstate the Premises either wholly or
partly (in the Lessor's absolute discretion) to the state in
which they were immediately prior to the commencement date
of such immediately preceding Lease and to do so in a proper
and workmanlike manner. If the Lessor shall require such
reinstatement then it shall following the expiration or
earlier determination of this Lease give notice in writing
to the Lessee stating the works required to be effected
pursuant to this clause and in the event that within 21 days
after such service of such notice upon the Lessee the
Premises have not been reinstated as required by such
notice, then at any time thereafter the Lessor shall be
entitled to procure such reinstatement to be effected by an
independent contractor and to recover the cost of so doing
from the Lessee as a liquidated debt."
(g) the provisions of this Clause B2 and Item 5 shall be omitted from such
further Lease.
B.3 Should the Lessee continue to occupy the Premises beyond the expiration of
the term of this Lease with the consent of the Lessor, otherwise than
pursuant to a further Lease granted by the Lessor to the Lessee, he shall
do so as a monthly tenant only, at a rent payable monthly in advance, the
first payment to be made on the day following the date stated in Item 4,
equal to one-twelfth of the sum of the following amounts:-
(a) the amount (per annum) of the base rent payable hereunder immediately
prior to the expiration of the term of this Lease; and
(b) the sum referred to in Clauses C3 and K3; and
(c) the Cleaning Charge referred to in Clause L.
Such tenancy shall be determinable at any time by either the Lessor or the
Lessee giving to the other one (1) month's notice in writing expiring at
any time. All other terms and conditions of this Lease shall, mutaris
mutandis, apply to such
<PAGE>
PAGE 6
holding over.
B.4 Notwithstanding anything herein contained, upon the Lessor becoming
entitled to re-enter or determine this Lease, the residue of the term
hereof for the time being unexpired shall at the option of the Lessor
immediately upon notice of the exercise of such option being given by the
Lessor to the Lessee become reduced to one (1) month and thereafter the
tenancy hereby created shall be and remain tenancy from month to month at a
rent payable monthly in advance, the first payment to be made upon the date
on which notice of the exercise of such option is given by the Lessor to
the Lessee, equal to one-twelfth of the sum of the following amounts:-
(a) the amount (per annum) of the base rent payable hereunder immediately
prior to the expiration of the term of this Lease; and
(b) the sum referred to in Clauses C3 and K3; and
(c) the Cleaning Charge referred to in Clause L.
Such tenancy shall be determinable at any time by either the Lessor or the
Lessee giving to the other one (1) month's notice in writing.
C. RENT, ETC.
----------
C.1 The Lessee covenants with the Lessor that the Lessee will pay to the Lessor
during the term of this Lease rent (hereinafter called "base rent") at the
rate of the amount per annum stated in Item 6 (subject however to Clause
C2). The base rent shall be paid by the Lessee to the Lessor as follows:-
(a) Where the commencing date of this Lease is the first day of any month,
by a payment to be made on or before such commencing date equal to
one-twelfth of the amount of the base rent.
(b) Where the commencing date of this Lease is not the first day of any
month, by a payment to be made on or before such commencing date equal
to that amount which bears to the amount of the base rent the same
ratio as the number of days in the period from such commencing date to
the first day of the month following bears to 365.
(c) By payments to be made on the first day of each month following the
commencing date of this Lease during the term of this Lease, each
equal to one-twelfth of the amount of the base rent provided however
that where that date stated in Item 4 is not the last day of any month
then the last of such payments shall be that amount which bears to the
amount of the base rent the same ratio as the number of days in the
period from the first day of the month stated in Item 4 to the day of
that month stated in Item 4 bears to 365.
<PAGE>
PAGE 7
C.2
(a) At any time prior to or after the commencing date the Lessor may
notify the Lessee in writing of the amount which the Lessor considers
to be the annual market rent of the premises as from that particular
review date until the next applicable review date or the termination
date whichever shall be the sooner to occur and unless the Lessee
within one (1) month of the date of delivery of the Lessor's notice
referred to in this Clause notifies the Lessor in writing that the
Lessee requires such rent to be determined then the amount stated in
the Lessor's notice given under this Clause shall become the rent
reserved by this Lease as and from that particular review date in
substitution for the amount stated in ITEM 6 or where applicable the
rent determined at any previous review date.
(b) In the event that the Lessee disputes the Lessor's assessment as
aforesaid then the Lessor may request the President or other senior
office bearer of the Australian Institute of Valuers and Land
Economists (Inc.) NSW Division or its successor to nominate a member
of the Institute or its successor who shall determine a proper base
rent for the premises having regard to the current market rental value
thereof and:-
(i) any such determination when made shall be deemed to have been
made by such valuer as an expert and not as an arbitrator;
(ii) the cost of any such determination shall be paid by the Lessor
and the Lessee equally;
(iii) the base rent payable HEREUNDER SHALL BE THE GREATER OF:
(aa) the amount so determined, OR
(bb) the amount which is the sum of the base rent payable
immediately prior to such determination and the total of
the Outgoings paid or payable under this lease during the
12 months immediately prior to such determination,
(iv) any variation in the base rent resulting therefrom shall take
effect on and from the review date.
(c) The covenants by the Lessee in Clause C1 shall apply from time to time
as if the base rent for the time being applicable under this Clause
were the base rent stated in ITEM 6.
<PAGE>
PAGE 8
(d) On the first and second anniversaries of the commencing date, the rent
shall be subject to review and adjusted by reference to the following
formula:
The greater of:-
(i) Adjusted rent = R x 12 x CPI(2)
------
CPI(1)
where R = the monthly rent payable by the Lessee
immediately prior to the then applicable review
date;
CPI(1) = The Consumer Price Index number for the quarter
ending immediately prior to the later of the
commencement date or the immediately preceding
review date as the case may be.
CPI(2) = The Consumer Price Index number for the quarter
ending immediately prior to the then applicable
review date.
OR
(ii) the base rent payable immediately prior to the relevant date for
review of rent increased by three per centum (3%).
C.3 The Lessee shall pay to the Lessor in addition to the rent reserved by this
Lease the amount by which the Outgoings paid or incurred by the Lessor
during any period in which the Lessee is in occupation of the Premises
exceed the amount of the Outgoings for the base year stated in Item 7(b)
and the following provisions shall apply.
(i) the "OUTGOINGS" where used in this Lease shall mean the total sum of
all Outgoings costs and expenses assessed charged imposed levied paid
or payable by the Lessor in respect of the premises (including in such
term, for the purposes of this sub-clause, common property, the
curtilage of the Building and all levels thereof including but without
limiting the generality of the foregoing, those levels below ground
level, whether used for parking of motor vehicles or otherwise) and in
particular but without limiting the generality of the foregoing shall
include:
(a) all taxes rates assessments duties levies impositions and fees
whatsoever imposed by any Municipal or Local Government State
Government or Federal Government or other Authority imposed
<PAGE>
PAGE 9
levied or charged upon the premises including any State or
Federal Land Tax which may be imposed and including all taxes for
local improvements or works related to the premises assessed upon
the Lessor or which the Lessor is liable to pay.
(b) All rates costs and charges payable in relation to the supply of
water sewerage and drainage to or from the premises.
(c) All amounts payable by the Lessor in respect of insurances
effected by the Lessor relating to the premises or risks
associated therewith.
(d) All charges incurred or paid by the Lessor for lighting heating
air conditioning ventilating the premises or providing
electricity gas or fuel to the premises.
(e) The costs and expenses incurred by the Lessor in servicing
maintaining and repairing the premises and the Lessor's fixtures
fittings plant and equipment installed therein BUT excluding
repairs of a structural nature.
(f) The costs of operating and providing any services for the benefit
of the premises or the tenants therein such as security and/or
caretaking landscaping and/or gardening services.
(g) All costs (including wages and administrative costs) incurred by
the Lessor in or about the management control or administration
of the premises but excluding contributions made by the Lessor to
any promotional fund established for the Building.
(h) All strata levies (including administrative, sinking and special
strata levies) payable in relation to the premises.
(ii) The Lessee shall pay to the Lessor the percentage of the Outgoings
payable by the Lessee within fourteen (14) days of the Lessor giving
to the Lessee written notice of the amount thereof together with
reasonable details of the calculation of such amount which notice
shall be prima facie evidence of the detail set out therein.
(iii) Notwithstanding the provisions of the foregoing paragraph the Lessor
may from time to time notify the Lessee of the Lessor's reasonable
estimate of the Lessee's proportion of the Outgoings for any period
not exceeding one (1) year in advance of the estimate whereupon the
Lessee will pay to the Lessor during such period such estimate
proportion by equal monthly instalments in advance on the days
hereinbefore fixed for payment of the rent provided always that upon
computation of the Lessor's Outgoings at the end of the then current
year as aforesaid any necessary adjustment between the estimated and
actual Lessee's proportion shall be
<PAGE>
PAGE 10
made and any refund to or further payment by the Lessee shall be allowed or
made by or to the Lessor accordingly.
C.4 If any rent or other moneys payable by the Lessee under this Lease remain
unpaid for fourteen (14) days after their due date then the Lessee shall
pay to the Lessor interest on those moneys at the annual percentage rate
which is equivalent to the annual percentage interest rate charged from
time to time for cash advances by the Westpac Banking Corporation to its
customers having "Bankcard" accounts (or where such accounts are totally
discontinued such accounts as shall then have replaced such "Bankcard"
accounts) calculated from the due date for payment of those moneys to the
date of payment and the Lessor shall be entitled to recover those moneys
and/or that interest with all costs incurred in such recovery as if the
same were rent arrears.
D. INSURANCE
---------
D.1 The Lessee shall at all times during the term of this Lease and during any
period of holding over keep current an adequate public risk insurance
policy for an amount not less than the amount stated in Item 9 (being the
amount which may be paid arising out of any one single accident or event)
or such higher amount as the Lessor may from time to time require in
respect of the Premises.
D.2 The Lessee shall at all times during the term of this Lease and during any
period of holding over keep current an insurance policy in the joint names
of the Lessor and the Lessee for the full insurable value on a replacement
basis against all insurable risks of all glass (including plate glass) in
or enclosing the Premises.
D.3 The Lessee shall at all times during the term of this Lease and during any
period of holding over keep current a policy of workers' compensation
insurance with unlimited common law extension covering all persons employed
or otherwise retained by the Lessee (including any persons retained by the
Lessee to effect any repairs alterations or additions to the Premises)
effectively insuring the interests and liabilities of the Lessor to any
such person so employed or retained.
D.4 The Lessee shall indemnify and keep indemnified the Lessor from and
against:-
(a) all claims demands writs summonses actions suits proceedings judgments
orders decrees damages costs losses and expenses of any nature
whatsoever which the Lessor may suffer or incur in connection with the
loss of life, personal injury and/or damage to property arising from
or out of any occurrence in, upon or at the Premises or the use of the
Premises or any part thereof by the Lessee or by any of the Lessee's
employees or visitors;
(b) all loss and damage to the premises, to the Building and to all
property therein caused by the Lessee or the Lessee's employees or
visitors and in
<PAGE>
PAGE 11
particular but without limiting the generality of the foregoing caused
by the use or misuse waste or abuse of water gas or electricity or
faulty fittings or fixtures of the Lessee.
D.5 The Lessee shall not bring on to, do or suffer to be done or allow any act,
matter or thing upon the Premises or keep anything in the Premises which
shall or may increase the rate of fire insurance on the Building or any
property therein or which may vitiate or render void or voidable any
insurances in respect thereof or (without limiting the generality of the
foregoing) which may conflict with the laws or regulations relating to
fires or any insurance policy over any part of the Building or any property
therein or the regulations or ordinances of any public authority or the
provisions of any statute for the time being in force.
D.6 The Lessee will from time to time as and when required by notice in writing
from the Lessor pay all extra premiums and stamp duties payable by the
Lessor on account of extra risk caused by the use to which the Premises are
put by the Lessee.
D.7 All policies of insurance liable or required to be effected by the Lessee
hereunder shall be taken out with an insurance office approved by the
Lessor.
D.8 The Lessee will if requested by the Lessor forthwith produce to the Lessor
any policy of insurance which the Lessee is required to effect hereunder
and the receipt for the last premium payable in respect of any such policy.
D.9 The Lessor shall not be liable or in any way responsible to the Lessee or
to any of the Lessee's employees or visitors or to any other person for any
injury loss or damage which may be suffered or sustained to any property or
by any person in the Building or on the land howsoever occurring.
E. ADDITIONAL COVENANTS OF LESSEE
------------------------------
E.1 The Lessee covenants that the Lessee shall not:-
(a) open or permit or cause to be opened or to remain open any window in
the Building;
(b) cover or obstruct or permit to be covered or obstructed in any manner
or by any article or thing (other than curtails or blinds supplied by
or approved of by the Lessor) the windows sky-lights or ventilating
shafts or air inlets or outlets which reflect or admit light or enable
air to flow into or out of the Premises or any part of the Building;
(c) use or cause or permit to be used for any purposes other than for
those for which they were constructed in the light areas, lift shafts,
water-closets,
<PAGE>
PAGE 12
lavatories, conveniences and other services in the Building;
(d) throw place or allow to fall or cause or permit to be thrown or placed
in the light areas, lift shafts, water-closets, lavatories,
conveniences or other services in the Building, sweeping, rubbish,
waste paper or any unsuitable substances and the Lessee shall on
demand pay to the Lessor the amount of any damage resulting to such
light areas, lift shafts, water-closets, lavatories, conveniences or
other services from misuse of such facilities by the Lessee or by any
of the Lessee's employees or visitors;
(e) use or permit to be used any lavatories, water-closets, or washroom
accommodation in the building, other than that available from time to
time for general use;
(f) use the Premises or any part thereof for the storage or cooking of
food whether for consumption upon the Premises or not;
(g) apply at any time for or allow any application to be made for a
license or licences for the sale of beer, wine, spirits or similar
intoxicating liquors on the Premises or any part thereof or allow the
Premises or any part thereof to be used for the carrying on therein of
the trade of a publican or licensed victualler of for the sale of
beer, wine, spirits or similar intoxicating liquors or for the purpose
of a club or association where such liquor may be sold supplied to or
received, stored or bought for consumption by members or any other
person;
(h) other than in accordance with the specified use of the Premises
approved by the Lessor store chemicals, inflammable liquids,
acetylene, gas or alcohol volatile or explosive oils, compounds or
substances upon the premises or use any such substances or fluids in
the Premises for any purpose;
(i) use or permit the use of the Premises as dwelling house or sleeping
place or keep permit or suffer to be kept any animals, fishes,
reptiles or birds in or about the premises;
(j) cause obstruction or smoke or expectorate in any of the common areas
or keep any musical instruments, radios or television sets in or about
the Premises;
(k) use the Premises or permit the Premises to be used in any noisy
noxious immoral or offensive manner or do or permit on the Premises or
on the common areas anything which in the opinion of the Lessor may be
or become a nuisance disturbance or cause damage to the Lessor or its
tenants or other persons using the Building;
<PAGE>
PAGE 13
(l) make any disturbing or irritating noises or install or use any engine
or machine which shall cause or may be likely to cause noise or
vibration in the Building;
(m) use or permit to be used any heating or cooling devices or any other
device or machine which may interfere with the efficient running of
the air conditioning system;
(n) without the written consent of the Lessor;
(i) use or occupy the Premises otherwise than as office Premises in
connection with the profession trade or business stated in Item
8; or
(ii) paint affix or erect on the interior or exterior of the
Premises or of the Building any notices advertisements signs or
other devices; or
(iii) carry on any auction sale upon the Premises or any part of the
Building; or
(iv) make or permit to be made any alterations or additions in or to
the Premises or any of the Lessor's fittings (including but
without limiting the generality of the foregoing any partitions
and floor coverings) in the Building;
(o) drive nails or screws into or in any way damage or deface any floors
ceilings walls partitions or any part thereof;
(p) assign sublet or in any way dispose of or part with possession of the
Premises or any part thereof without the consent in writing of the
Lessor such consent (subject as hereinafter provided) not to be
unreasonably withheld in the case of an assignment of the whole of the
Premises or a sublease of the whole or any part of the Premises to an
assignee or sublessee proved by the Lessee to be a respectable solvent
and responsible sublessee or assignee PROVIDED THAT should the Lessee
at any time or from time to time wish to assign the whole of the
Premises or to sublet the whole or any part of the Premises the Lessee
shall before doing so offer in writing to the Lessor to surrender this
Lease in respect of such whole or part of the Premises without any
consideration and the Lessor may accept such offer in writing at any
time within fourteen (14) days of the receipt thereof (such acceptance
to be without prejudice to the rights and remedies of the Lessor in
respect of any rent in arrear or any breach of the covenants herein
contained) but if the Lessor shall fail to accept such offer within
fourteen (14) days as required the Lessor shall be deemed to have
rejected it. For the purposes hereof any change in the principal
shareholding altering the effective control of the Lessee (if a
company) shall be deemed an
<PAGE>
PAGE 14
assignment of the Lease and require the consent of the Lessor as
aforesaid;
(q) erect or construct any sign, device, furnishing, ornament or object
which is visible from the street or from any other building and which,
in the opinion of the Lessor, is incongruous or unsightly or may
detract from the general appearance of the Building;
(r) use any lifts in the Building for the carriage of goods, without first
obtaining the consent of the Lessor or its managing agent or building
supervisor for the time being;
(s) permit or suffer any of the Lessee's employees or visitors or any
other person to do any of the foregoing.
(t) make any application for development consent to North Sydney Council
or approach or enquire of North Sydney Council regarding development
consent with respect to the premises without the prior written
approval of the Lessor or it's managing agent.
E.2 The Lessee covenants that the Lessee shall:-
(a) keep the interior of the Premises and all fixtures and fittings
therein (including, without limiting the generality of the foregoing,
all doors, carpets and floor coverings, locks, window frames, window
glass, window fittings, curtains, blinds, floors, plaster or other
covering to walls and ceilings, pipes, and electrical installations
from the points where the supplies enter any meters that may serve the
Premises) in good and tenantable repair and condition, fair wear and
tear, damage by fire, lighting, explosion, storm, tempest, flood, war,
riot and civil commotion, strikes, aircraft, other aerial devices or
articles dropped therefrom, and earthquake excepted (save where any
insurance moneys are irrecoverable by the Lessor by reason of the
neglect default or misconduct of the Lessee) and (subject always to
Clause E.2.(p) hereof) in such repair and condition (except as
aforesaid) to yield up the same at the expiration or sooner
determination of the term of this Lease;
(b) allow the person or persons for the time being having the contract for
the cleaning of the Premises and their servants workmen employees
agents contractors and sub-contractors access to the Premises for the
purpose of cleaning the Premises at all reasonable times and in
particular, but without limiting the generality of the foregoing,
allow the cleaning of the windows of the Premises during business
hours;
(c) use internal partitions within the Premises only of such standards as
to type, quality, colour, and size as the Lessor shall decide and
cause such partitions to be installed in the Premises in accordance
with plans and specifications previously approved by the Lessor by a
builder approved of by the Lessor
<PAGE>
PAGE 15
under the supervision of an architect nominated by the Lessor and the
Lessee shall not make any additions or alterations to the partitions
except according to the said standards and under such supervision and
with the prior approval in writing of the Lessor which approval shall
not be unreasonably withheld and the fees of any architect or other
consultant employed by the Lessor and all other costs and expenses of
the Lessor in connection therewith shall be borne by the Lessee and
paid by the Lessee to the Lessor on demand;
(d) pay the cost of all internal partitions within the Premises and the
cost of installing such partitions including all doors, vents, glass
and other items included in, or incidental to, the same, all
additional lights and power outlets, switches and telephone outlets,
any re-location of fire sprinklers, and any alteration to the air
conditioning which may be required by reason of the position of any
such partitions, together with all architects' and other consultants'
fees incurred in connection with the same;
(e) be responsible for the maintenance and insurance of all such internal
partitions;
(f) if so required by the Lessor, remove all such internal partitions or
any part thereof nominated by the Lessor from all portions of the
Premises vacated by the Lessee at or prior to the expiration of the
occupation thereof by the Lessee and in default thereof the Lessor may
remove and dispose of the same. Any such partitions not so removed by
the Lessee shall become the property of the Lessor. All damage done to
the Premises by such removal shall be made good by the Lessee on or
prior to the expiration of the occupation thereof by the Lessee and if
the Lessee fails to so do the Lessor may make good all such damage.
All costs incurred by the Lessor in such removal or disposal or in
making good such damage shall be paid by the Lessee to the Lessor
within seven (7) days of the Lessor notifying the Lessee of the amount
thereof;
(g) pay all the proper authorities all charges for telephones and
electricity and for all excess water (if separately metered) used on
the Premises and if the Lessee makes default in the payment thereof it
shall be optional for the Lessor to pay the same and to recover the
amount so paid as if the same was rent payable hereunder on the date
on which the Lessor pays the same;
(h) except where this Lease contains an option for a further term which
the Lessee is entitled to exercise and the Lessee exercises such
option, within three (3) calendar months, immediately preceding the
expiration of this Lease allow at all reasonable times prospective
tenants or occupiers to inspect the Premises and allow the Lessor to
exhibit where the Lessor shall think fit a notice indicating that the
Premises are to become vacant which notice the Lessee shall not remove
or conceal;
<PAGE>
PAGE 16
(i) upon the expiration or sooner determination of the term of this Lease
surrender to the Lessor all keys giving access to all parts of the
Premises held by the Lessee or any of the Lessee's employees and
visitors, irrespective of whether or not the same have been supplied
by the Lessor, and remove at his expense all lettering and distinctive
marks or signs put by the Lessee or the Lessor for the Lessee on any
of the doors walls or windows of the Premises or the Building and make
good any damage or disfigurement caused to such doors walls or windows
by reason of such removal:
(j) duly and continuously observe and perform and have duly and
continuously observed and performed by all the Lessee's employees and
visitors all of the rules and regulations from time to time made by
the Lessor for the better functioning of the Building;
(k) comply promptly with and observe at his own expense all notices
received from any statutory, public or municipal authority with
respect to the Premises except such notices as would have been given
irrespective of the Lessee's occupancy of the Premises;
(l) should any infectious illness transpire in or about the Premises
forthwith give written notice thereof to the Lessor, its building
supervisor, or managing agents and thoroughly fumigate and disinfect
the Premises at his own expense and to the satisfaction of the local
health officer;
(m) should the Lessee receive any notice from any statutory public or
municipal authority with respect to the Premises, forthwith give
notice thereof in writing to the Lessor;
(n) the lessee will pay the Lessor's legal costs and all duties, fees,
charges and expenses of or incidental to the preparation completion
stamping and registration of this Lease and any renewal hereof and any
application for the consent of the Lessor hereunder and of or
incidental to any and every breach or default by the Lessee hereunder
and in or incidental to the exercise of any right power privilege
authority or remedy of the Lessor under or by virtue of this Lease and
the fees of all professional consultants properly incurred by the
Lessor in consequence of or in connection with breach or default by
the Lessee hereunder.
Where the average annual rent secured by this Lease is in excess of
one hundred thousand dollars ($100,000,00) the Lessor's legal costs
hereinbefore described shall be calculated generally in accordance
with Schedule One of the Conveyancing General Order as it existed
immediately prior to 2 December 1985 or shall be such other amount as
the Lessor shall properly agree with its solicitors;
<PAGE>
PAGE 17
(o) forthwith give notice to the Lessor its caretaker or managing agent of
any damage that may occur to the Premises and of any accident to or
defects in the water pipes gas pipes electrical wiring and fittings
fixtures or other facility provided by the Lessor;
(p) redecorate the Premises throughout to the satisfaction of the Lessor's
architect for the time being immediately prior to the expiration of
the term or the sooner determination of this Lease PROVIDED ALWAYS
that in the event that:
(i) this Lease contains an option for a further term which the Lessee
is entitled to exercise and the Lessee exercises such option, the
Lessee shall not be obliged to redecorate the Premises prior to
the expiration of the term of this Lease as aforesaid;
(ii) the Lessee shall fail to redecorate the Premises as aforesaid the
Lessor may redecorate the Premises and recover from the Lessee
the costs of such redecoration together with such rents and other
amounts which the Lessor would have been entitled to receive from
the Lessee had the period within which such redecoration is
effected by the Lessor been added to the term of the Lease. The
Lessee will pay such costs, rents and other amounts to the Lessor
within seven days of the Lessor notifying the Lessee of the
amount thereof. For the purposes hereof the term "redecorate"
shall include the washing down of the whole of the interior of
the Premises, the painting with two coats of oil paint or
emulsion paint or other appropriate treatment of all of the
internal parts of the Premises previously so treated
respectively, the repolishing of all the internal parts
previously polished and the graining and varnishing of all the
internal parts previously grained and varnished, and also the
replacing of all carpet and floor tiles which in the opinion of
the Lessor's architect for the time being are worn or damaged and
in need of replacement;
(q) before any safe, furniture, partition or fitting is moved into or out
of the Building, give due notice of the intention to move the same to
the Lessor, or to its managing agent for the time being, and shall not
move the same otherwise than under the supervision of the Lessor's
building supervisor for the time being and at a time approved of by
the Lessor or the Lessor's managing agent for the time being;
(r) from time to time advise the Lessor in writing of the address of the
place where the Lessee or, if the Lessee is a corporation, a
responsible officer of the Lessee, ordinarily resides;
(s) replace all electric light bulbs, tubes and globes in the Premises
which may
<PAGE>
PAGE 18
become damaged or broken or fail to light;
(t) keep all doors and other means of access to the Premises securely
fastened on all occasion when the Premises are left unoccupied, except
so far as is necessary to comply with sub-clause (b) of this Clause;
(u) (i) maintain all carpets and floor coverings installed by the Lessor
within the premises to the satisfaction of the Lessor;
(ii) fit at the expense of the Lessee and use on all office furniture
and equipment used by the Lessee within the Premises such
castors and/or other carpet protection devices as may from time
to time be required by the Lessor;
(v) on or before the date of any assignment transfer or sub-letting of
this Lease pay to the Lessor the greater of:-
(i) all proper charges, costs and expenses including legal costs and
commissions incurred by the Lessor or payable by the Lessor to
its authorised managing agent of and incidental to any inquiries
which shall have been made by or on behalf of the Lessor as to
the responsibility, solvency, fitness and suitability of any
proposed assignee, transferee or sub-lessee, or
(ii) that amount which is equal to one (1) week's rent calculated by
reference to the annual rent current at the date of such
assignment or transfer.
(w) comply with all by-laws of the Strata Plan and all directions of the
Strata Manager.
F. ADDITIONAL RIGHTS OF THE LESSEE
-------------------------------
F.1 The lessee may install supplementary floor coverings including carpet at
his own cost PROVIDED THAT such installation and any subsequent removal
shall not cause any damage to the Premises or the building or to the floor
covering (if any) of the lessor and in the event that any damage shall be
caused thereto the same shall be forthwith rectified by the Lessee and in
default thereof by the Lessee the Lessor may rectify the same. The Lessee
shall pay to the Lessor the cost of any such rectification by the Lessor
within seven days of the Lessor notifying the Lessee of the amount thereof.
Any such installation and subsequent removal of such supplementary floor
coverings and any rectification of damage as aforesaid may if the Lessor so
requires be supervised by an architect nominated by the
<PAGE>
PAGE 19
Lessor whose fees shall be paid by the Lessee.
F.2 The Lessee shall be entitled during the said term or on the expiration
thereof to remove all trade fixtures including partitions (if any) erected
by the Lessee with the consent of the Lessor provided the Lessee thereupon
immediately make good all damage done to the Premises by reason of such
damage. The Lessee shall pay to the Lessor any cost incurred by the Lessor
in making good all such damage within seven days of the Lessor notifying
the Lessee of the amount thereof.
G. COVENANTS OF THE LESSOR
-----------------------
The Lessor covenants with the Lessee that:
G.1 The Lessor shall pay all rates taxes and assessments charged upon the land
except those which the Lessee has covenanted to pay.
G.2 The Lessor shall pay to the proper authorities the cost of all water
consumed or used in the Building except any excess water which the Lessee
has covenanted to pay.
G.3 The Lessee, upon paying the rent and other moneys payable hereunder and
performing and observing his covenants and obligation hereunder, shall and
may peaceably possess and enjoy the Premises during the continuance of this
Lease without any interruption or disturbance from the Lessor or any person
or persons lawfully claiming by from or under him.
H. ADDITIONAL RIGHTS OF THE LESSOR
-------------------------------
H.1 The Lessor shall have the right for itself, its servants, agents,
architects, surveyors, builders, workmen and persons authorised by the
Lessor with all necessary materials, equipment and appliances from time to
time to enter upon the Premises at all reasonable times and upon reasonable
notice but at any time and without any notice in the case of an emergency:
(a) to carry out any works or make any repairs to alterations or additions
to the Premises and to enter upon all or any part of the Premises and
to use the same for the purposes of effecting or carrying out any
repairs alterations or additional or other work which the lessor may
consider necessary or desirable to any part of the Building or
buildings adjacent thereto;
(b) when as often as the Lessor shall require to view the state of repairs
and condition thereof and make such reasonable investigations as it or
they may deem necessary for the purpose of ascertaining whether
<PAGE>
PAGE 20
or not there has been any breach of any of the covenants and
conditions herein contained and to serve upon the Lessee a notice in
writing of any defect requiring him to repair the same in accordance
with any covenant herein contained.
(c) where the Lessee has failed to repair any defect within twenty-one
days of the date of service of any notice of the Lessor requiring him
so to do in accordance with that notice, to execute all or any of the
required repairs as the Lessor shall think fit without prejudice to
the Lessor's other remedies, the Lessee shall pay to the Lessor the
cost (or any part thereof) of such repairs as the Lessee ought to have
effected including all sums paid on account of any insurances
indemnities or compensation under the Workers' Compensation Acts or
otherwise howsoever with respect thereto within seven days of the
Lessor notifying the Lessee of the amount thereof;
(d) for the purposes of complying with the terms of any present or future
legislation affecting the Premises or the Building or of any notice
served upon the Lessor or the Lessee by the Board of Health,
licensing, municipal or other competent authority, for the purpose of
carrying out any repairs alterations or works (including the providing
of lighting power and telephone services to the Lessee and other
tenants of the Building and any other purpose the effecting of which
necessitates access to the ceilings in the Premises) and also for the
purpose of exercising the powers and authorities of the Lessor
hereunder;
(e) in the event of the Premises or the Building being destroyed or
damaged, for the purpose of rebuilding the same or the Building or
making them fit for the occupation and use thereof by the Lessee and
by the other occupiers thereof; and
(f) without limiting the generality of the foregoing to remove any ceiling
in the Premises and carry out any work in connection therewith but the
Lessor shall replace such ceiling as expeditiously as possible and
shall make good any damage or injury to the Premises occasioned by
such removal.
H.2 The Lessor may if the Lessor so elects remedy at any time without notice
any default by the Lessee under this Lease and whenever the Lessor so
elects all costs and expenses incurred by the Lessor (including legal costs
and expenses) in remedying a default shall be paid by the Lessee to the
Lessor within twenty-four hours of the Lessor notifying the Lessee of the
amount thereof.
H.3 If at any time during the time of this Lease or during the occupation of
the Premises by the Lessee:
<PAGE>
PAGE 21
(a) the Lessee shall fail to pay any rent or other moneys payable by the
Lessee to the Lessor by the due date for the payment of such moneys in
terms of this Lease, which failure shall be deemed to be a fundamental
breach of the Lessee's obligations under this Lease; or
(b) The Lessee shall consistently fail to make payments of rent or other
moneys as they fall due and shall require by its conduct the Lessor to
make formal demands for such late payment of rent or other moneys on
as many as six (6) or more occasions in any period of twelve (12)
months; or
(c) in case of default by the Lessee in respect of any obligation on the
part of the Lessee arising out of any term of this Lease and such
default is continued for fourteen (14) days after such default occurs
or in the case of repairs required to be effected by the Lessee such
repairs are not completed within a reasonable time; or
(d) execution be levied against any of the assets of the Lessee; or
(e) the Lessee (not being a company) becomes bankrupt or assigns his
estate or enters into a deed of arrangement for the benefit of
creditors; or
(f) the Lessee (being a company) either:
(i) goes into liquidation (other than a voluntary liquidation for
the purposes of reconstruction or re-organisation); or
(ii) is wound up or dissolved; or
(iii) enters into a scheme of arrangement with its creditors or any
class thereof; or
(iv) is placed under official management; or
(v) a receiver or manager of any of its assets is appointed; or
(vi) an inspector or investigator is appointed pursuant to the
Corporations Law;
THEN notwithstanding any prior waiver or failure to take action by the
Lessor or indulgence granted by the Lessor to the Lessee in respect of any
such matter or default whether past or continuing the Lessor shall have the
following rights (which shall be in addition to any other rights or
remedies of the Lessor):
(1) to re-enter (forcibly if necessary) upon the Premises or any part
thereof in the name of the whole and thereby determine the estate of
the Lessee;
<PAGE>
PAGE 22
and/or
(2) to remove or otherwise deal with as provided in Clause F.2 all
partitions alterations additions or other fixtures fittings or goods
and effects found on the Premises;
(3) to recover all arrears of rent and any other moneys payable by the
Lessee to the Lessor;
(4) to recover as damages for breach of any covenant contained in this
Lease all losses damages and expenses (including legal costs and
disbursements on a solicitor/client basis) which are suffered or
incurred by the Lessor following such breach including without
limiting the generality of the foregoing any rent or other moneys lost
to the Lessor after any such breach.
H.4 The Lessor shall in all cases retain and have the power to prescribe the
weight and proper position of iron or steel safes and other heavy articles
or goods and all damage caused to the Building or any part thereof or to
the lifts by the Lessee or anyone on his behalf by taking in or putting out
a safe, furniture, goods, or other articles or during the time such are in
the Building shall be made good by the Lessee, or, if the Lessor so elects,
by the Lessor at the expense of the Lessee. The Lessee shall pay to the
Lessor the amount of such damage made good by the Lessor within seven days
of the Lessor notifying the Lessee of the amount thereof.
H.5 Deleted.
H.6 Should the Lessor re-enter upon the Premises or any part thereof and
determine the estate of the Lessee pursuant to any of its rights to do so
in terms of this Lease then without prejudice to any other right or remedy
of the Lessor herein contained or implied IT IS HEREBY EXPRESSLY AGREED AND
DECLARED that the Lessee shall be obliged to pay to the Lessor upon demand
made by the Lessor and the Lessor shall be entitled to recover from the
Lessee as and by way of liquidated damages for such breach the DIFFERENCE
between the aggregate of rent and other moneys which would have been paid
by the Lessee but for such determination such rent and other moneys being
calculated from and relating to the period from the date of such
determination to the date of termination of this Lease referred to in Item
4 less the aggregate of the several rents and other moneys which the Lessor
----
by having taken proper and reasonable steps to re-let the Premises during
the same period shall have been paid or could reasonably be expected to
have been paid by such re-letting. PROVIDED ALWAYS THAT in so doing the
Lessor shall not be required or obliged to offer or accept in respect of
such re-letting any terms, covenants, conditions or stipulations differing
from those herein contained or implied.
I. GUARANTORS
----------
<PAGE>
PAGE 23
1.1 In consideration of the Lessor at the request of the person(s) or
corporation(s) named in Item 10 (which person(s) or corporation(s) is/are
hereinafter called "the Guarantor" which expression shall mean and include
the said person(s) or corporation(s) their respective executors
administrators and assigns) entering into this Lease with the Lessee the
Guarantor covenants and agrees with the Lessor that:
(a) The Guarantor guarantees to the Lessor that he will be with the Lessee
jointly and severally liable to the Lessor for the due payment of all
moneys to be paid by the Lessee under this Lease and the due
performance and observance by the Lessee of all the covenants terms
and conditions of this Lease on the part of the Lessee to be performed
and observed.
(b) The Guarantor will indemnify the Lessor and agrees at all times
hereafter to keep the Lessor indemnified from and against all losses
and expenses which the Lessor may suffer or incur in consequence of
any breach of non-observance of any of the covenants terms and
conditions of this Lease on the part of the Lessee to be performed or
observed and the Guarantor agrees that the Guarantor shall remain
liable to the Lessor under this indemnity notwithstanding as a
consequence of such breach or non-observance the Lessor has exercised
any of its rights under this Lease including its rights of re-entry
and notwithstanding that the Lessee (being a company) may be wound
upon or dissolved or (being a natural person) may be declared bankrupt
and notwithstanding that any guarantee given by the Guarantor may for
any reason whatsoever be unenforceable either in whole or in part.
(c) On any default or failure by the Lessee to observe and perform any of
the covenants terms and conditions of this Lase the Guarantor will
forthwith on demand by the lessor pay the rent and make good to the
lessor all losses and expenses sustained or incurred by the Lessor by
reason or in consequence of any such default or failure by the Lessee
in the payment of rent or in performing or observing any of the
covenants terms and conditions of this Lease without the necessity of
any prior demand having been made on the Lessee.
(d) The liability of the Guarantor under this Clause shall not be affected
by the granting of time or any other indulgence to the Lessee or by
the compounding compromise release abandonment waiver variation
amendment or renewal of any of the rights of the Lessor against the
Lessee or of the obligations of the Lessee in terms of this Lease or
by any neglect or omission to enforce such right or by any other thing
which under the law relating to sureties would or might but for this
provision release the Guarantor in whole or in part from his
<PAGE>
PAGE 24
obligations under this Clause.
(e) Notwithstanding that as between the Guarantor and the Lessee the
Guarantor may be a surety only nevertheless as between the Guarantor
and the Lessor the Guarantor shall be deemed to be a primary debtor
and contractor jointly and severally with the Lessee.
(f) To the fullest extent permitted by law the Guarantor hereby waives
such of his rights as surety or indemnifier (legal equitable statutory
or otherwise) which may at any time be inconsistent with any of the
provisions of the guarantee and indemnity contained in this Clause.
(g) The covenants and agreements made or given by the Guarantor shall not
be conditional or contingent in any way or dependent upon the validity
or enforceability of the covenants and agreements of any other person
and shall be and remain binding notwithstanding that any other person
shall not have executed or duly executed this Lease or this guarantee
and indemnity.
(h) If this Lease shall contain an option for a further lease and the
Lessee shall exercise such option then the Guarantor shall guarantee
the obligations of the Lessee under such further lease and indemnify
the Lessor in respect of such further lease in the terms of the
guarantees and indemnities contained in this Clause.
(i) The obligations of the Guarantor under the guarantee and indemnity
contained in this Clause shall continue and remain in force until all
rent or other moneys payable by the Lessee shall have been paid and
until all other obligations and indemnities shall have been performed
observed and satisfied and such obligations shall not be reduced or
affected by assignment or sub-letting or by any notice to quite given
by either party to this Lease or by the death insolvency liquidation
or dissolution of the Lessee or the Guarantor or either of them.
(j) Where there is more than one person or corporation which together
constitute the Guarantor to this Lease the obligations and liabilities
of each and every such person or corporation shall be joint and
several.
(k) The Guarantor hereby expressly agrees with the Lessor that this
Guarantor shall have full force and effect as and from the execution
of this Lease and shall for all purposes constitute a guarantee of
this Lease whether or not this Lease is registered and regardless of
whether or not the Lease is required under the provisions of the Real
Property Act to be registered.
<PAGE>
PAGE 25
J. BANK GUARANTEE
--------------
J.1 As security for the due performance and satisfaction by the Lessee of its
obligations and liabilities to the Lessor under this Lease the Lessee
shall on or before the commencing date provide to the Lessor an
unconditional written Guarantee by a Bank licensed under the Banking Act
(1959) carrying on business in New South Wales to pay to the Lessor on
demand the sum specified in Item 11, which Guarantee may be retained by
the Lessor until such time as the Lessee shall have duly performed and
satisfied all of its obligations under this Lease and such Guarantee shall
be held by the Lessor as security for the performance by the Lessee of the
Lessee's obligations under this Lease.
J.02 The Lessor shall be entitled from time to time to call upon the said
Guarantee in or towards satisfaction of any amounts of rent other monies
payable under this Lease or in or towards satisfaction of any amount which
may become payable as a result of any breach by the Lessee of any of the
covenants and conditions on the part of the Lessee contained in the Lease
PROVIDED ALWAYS that any such action or application shall not be deemed to
constitute a waiver or release in respect of any such breach.
J.03 In the event that either:-
(a) the Lessor requires the Lessee's Bank to make a payment pursuant to
the Guarantee or,
(b) the annual rent payable by the Lessee increases such that the
guaranteed amount becomes less than four (4) months rent at the then
applicable rate under this Lease then the Lessee shall, within
fourteen (14) days of notification by the Lessor to the Lessee that
such a requirement for payment has been made or that the rent has
increased, deliver to the Lessor a further Banker's Guarantee (which
Banker's Guarantee shall be in the same form as that previously
delivered) for or in respect of a sum equal to the difference between
the amount then required to be provided by the Lessee under the
preceding provisions of this clause and the balance the remaining
available pursuant to the original Guarantee.
J.04 Upon delivery to the Lessor of such further Guarantee the provisions of
this clause shall apply to such Guarantee.
J.05 Upon termination of this Lease and payment of all moneys payable by the
Lessee to the Lessor pursuant to this Lease, the Lessor shall return to
the Lessee any Guarantee then held.
J.06 In the event that for any reason the Guarantee ceases to operate for the
full term, the Lessee shall immediately upon this coming to the notice of
the Lessee, provide to the Lessor a new replacement Guarantee, failing
which the Lessee shall be in
<PAGE>
PAGE 26
breach of an essential term of the Lease entitling the Lessor to take such
action as the Lessor sees fit as set out in Clause H.3 hereof.
K. CLEANING SERVICE
----------------
K.1 The Lessor may if it so elects, provide a cleaning service. In such case
the Lessor shall use its best endeavours to provide a satisfactory and
price competitive cleaning service for all parts of the Building including
without limiting the generality of the foregoing the exterior and interior
of all windows, all car parking areas, all toilet and wash room facilities
(including the provision of towels and other toilet requisites) all kitchen
areas, and the removal of any waste or rubbish from the common areas of the
Building and the immediately adjacent areas.
K.2 The lessee shall permit the Lessor or the Strata Manager or such persons
authorised by them access to the Premises during the hours as the Lessor
may notify the Lessee from time to time (including normal office hours) for
the purpose of window cleaning PROVIDED ALWAYS that the Lessor shall not be
responsible to the Lessee for any loss of or damage to the Premises or any
property therein or the Lessee's fitting, fixtures, furniture and effects
suffered by the Lessee and/or the Lessee's employees and agents occasioned
by the Lessor or its servants or contractors arising out of the Lessor's
obligations under this Clause.
K.3 In addition to the base rent and the Lessee's proportion of Outgoings, the
Lessee shall pay to the Lessor without demand from the Lessor and without
any deduction whatsoever that percentage stated in Item 12 of the basic
cleaning charge for the Building which charge relates to the Lessee's
proportion of the cost of providing the cleaning service referred to in
this Clause.
K.4 The Lessee will pay the cleaning charge by equal monthly instalments in
advance the first of such payments to be made on the commencement date.
K.5 From time to time the Lessor shall be entitled to review the basic cleaning
charge in the event that there be an increase or increases in the cost to
the Lessor of providing the cleaning service.
K.6 The Lessor shall notify the Lessee in writing of the amount of any increase
in the basic cleaning charge and will state in the Notice the date from
which the increase will be payable and the increased basic cleaning charge
will be paid by the Lessee on the date next following the receipt of such
Notice.
L. CLEANING OF PREMISES
--------------------
L.1 The Lessee shall use exclusively the cleaning service provided by the
Lessor at the expense of the Lessee and will permit access to the Premises
during the hours as the Lessor may notify the Lessee from time to time
(including normal office hours)
<PAGE>
PAGE 27
for the purpose of window cleaning and outside normal office hours for the
purpose of other cleaning.
L.2 The Lessee will pay the cleaning charge by equal monthly instalments
thereof in advance the first of such payments to be made on the
commencement date.
L.3 The term "the cost of cleaning the Premises" shall mean all amounts paid or
payable by the Lessor in respect of the cleaning of the Premises to the
person or persons for the time being having the contract for the cleaning
of the Premises.
L.4 The Lessor shall not be responsible to the Lessee for any loss of or damage
to the Premises or any property therein or the Lessee's fitting, fixtures,
furniture and effects suffered by the Lessee and/or the Lessee's employees
and agents occasioned by the Lessor or its servants or contractors arising
out of the Lessor's obligations under paragraph 1 of this Clause.
M. MISCELLANEOUS
-------------
M.1 (a) The Lessor does not in any way warrant that the Premises are or will
remain suitable or adequate for any of the purposes of the Lessee and
to the fullest extent permitted by law all warranties as to
suitability and as to adequacy otherwise applicable are expressly
negatived.
(b) Should the use to which the Premises are put by the Lessee require the
licence, consent or approval of any competent Authority then the
Lessee warrants to the Lessor that it has prior to entering into this
Lease obtained such license, consent or approval and the Lessee shall
at its own expense maintain such licence, consent or approval as valid
and operative during its occupation of the Premises AND the Lessee
shall comply with and satisfy all conditions attaching to any such
--
licence, consent or approval.
M.2 No consent or waiver express or implied by the Lessor to or of any breach
of any covenant condition or duty of the Lessee shall be construed as a
consent or waiver to or of any other breach of the same or any other
covenant condition or duty.
M.3 Each reference in this Lease to any of the items in the Appendix shall be
construed to incorporate the data stated under that Item.
M.4 The headings and marginal notes appearing in this Lease are inserted only
as a matter of convenience and in no way define, limit, construe or
describe the scope or intent of the Sections or Clauses of this Lease nor
in any way affect this Lease.
M.5 All references to statutes herein shall include all statutes amending
consolidating or replacing the statues referred to.
<PAGE>
LEASE
NEW SOUTH WALES
REAL PROPERTY ACT 1900
Office of State Revenue use only
(A) PROPERTY LEASED
If appropriate specify the Office premises situate at level 3, 68
part or premises Alfred Street, Milsons Point, being Part Lot
7 in Strata Plan 56293 being Part 7/SP56293
(B) LODGED BY LTO Box Name, Address or DX and Telephone
Reference (15 character max):
(C) LESSOR TONICALON PTY LIMITED (ACN 063 619 125)
The lessor leases to the lessee the property described above.
(D) Encumbrances (if applicable): 1. 2. 3.
(E) LESSEE
L LOOKSMART INTERNATIONAL PTY LIMITED (ACN 074 789
263) OF LEVEL 5, 388 LONSDALE STREET, MELBOURNE
3000
(F)
(G) 1. TERM: Three (3) years
2. COMMENCING DATE: 1 June 1999
3. TERMINATING DATE: 31 May 2002
4. With an OPTION TO RENEW for a period of THREE (3) years set out in
clause B.2
5. With an OPTION TO PURCHASE set out in (NOT APPLICABLE)
6. Together with and reserving the RIGHTS set out in Annexure "A".
7. Incorporates the provisions set out in ANNEXURE "B" hereto.
8. Incorporates the provisions set out in (NOT APPLICABLE)
PAGE 1 OF 2
<PAGE>
(H) We certify this dealing correct for DATE _______
the purposes of the Real Property Act 1900
Signed in my presence by the Lessor who is personally known to me.
___________________________________ TONICALON PTY LIMITED (ACN
Signature of Witness 063 619 125) by its attorney
MARGARET ANTUNES pursuant to
Power of Attorney Book 4081
Number 203
___________________________________
Name of Witness (BLOCK LETTERS)
____________________________________ ______________________________
Address of Witness MARGARET ANTUNES
[STAMP OMITTED]
THE COMMON SEAL of LOOKSMART )
INTERNATIONAL PTY LIMITED )
(ACN 074 789 263) was hereunto affixed in )
accordance with the memorandum and articles of )
association:
/s/ Signature Illegible /s/ Signature Illegible
------------------------------- ------------------------------
Secretary Director
(I) STATUTORY DECLARATION
I solemnly and sincerely declare that: the time for the exercise of Option
to Renew/Purchase in expired lease No. ............... has ended: the
lessee under that lease has not exercised the option; and a variation of
lease extending the term has not been entered into. I make this solemn
declaration conscientiously believing the same to be true and by virtue of
the Oaths Act 1900.
Made and subscribed at ___________ in the State of ____________ on _______
19 ______ in the presence of:
_____________________________________________
Signature of Witness
_____________________________________________
Name of Witness (BLOCK LETTERS)
_____________________________________________ _________________________
Address and Qualification of Witness Signature of Lessor
PAGE 2 OF 2
<PAGE>
3
LEASE
GRANT OF LEASE AND GUARANTOR'S GUARANTEE
1. LEASE
1.1 The Landlord leases the premises to the Tenant on the terms set out in
this lease.
HOW LONG IS THIS LEASE?
2. STARTING AND ENDING
2.1 This lease begins on the commencing date in item 6(a) and ends at
midnight on the expiry date in item 7.
3. CONTINUING OCCUPATION AFTER EXPIRY DATE
3.1 If the Tenant has not given a notice under clause 4.1 but continues
the tenancy by occupying the premises after the expiry date, the
Tenant does so on the same provisions as are in this lease. However,
the Landlord or the Tenant may end the tenancy on any day by giving at
least 30 days notice to the other.
CAN THIS LEASE BE RENEWED?
4. RENEWING THIS LEASE
4.1 The Tenant may not renew this lease unless the following criteria are
satisfied:
* the Tenant has remedied all breaches of which the Tenant has been
given notice; and
* the Tenant has not been persistently in breach.
4.2 If the Tenant is entitled to renew this lease and wants to renew this
lease for the period stated in item 8, the Tenant must give the
Landlord a notice to this effect in the period which is between 180
days and 90 days before the expiry date.
4.3 If the Tenant does not give the notice on time, the Tenant loses the
right to renew this lease.
4.4 If the Tenant gives the notice on time, and if at the expiry date the
Tenant has remedied all breaches of which the Tenant has been given
notice, the Landlord must grant a new lease of the premises to the
Tenant.
4.5 The commencing date of the new lease is the day after this lease ends.
4.6 The Landlord's solicitors must prepare the new lease and the Tenant
must pay the following costs:
* the Landlord's costs as permitted by the Retail Tenancies Reform
Act 1998; and
* stamp duty on the new lease.
<PAGE>
2
5. Use Offices.
6. (A) COMMENCING DATE 1 September 1998
(B) RENT COMMENCING DATE 1 September 1998
7. EXPIRY DATE 31 August 2001
8. OPTION PERIOD One further period of 3 years.
9. RENT
(a) Term of this Lease Year 1
1 September 1998 - 31 August 1999; $66,825.00
Year 2
1 September 1999 - 31 August 2000: $70,166.25
Year 3
1 September 2000 - 31 August 2001: $73,674.56
(b) Option Period Year 1
1 September 2001 - 31 August 2002: Market
Review
Year 2
1 September 2002 - 31 August 2003: Percentage
increase of 5% on the rent for Year 1 of
Option Period.
Year 3
1 September 2003 - 31 August 2004: Market
Review
10. MARKET RENT REVIEW ALLOWED? Yes at the option of the landlord for the
Market Review Date in Item 9.
11. MARKET RENT REVIEW DATE The commencement date of Year 1 of the Option
Period.
12. PERCENTAGE INCREASE IN RENT There is no Item 12.
13. SECURITY DEPOSIT Bank guarantee equivalent to three (3) months
current rent to be held for the duration of
the lease and option period.
14. PUBLIC LIABILITY INSURANCE
AMOUNT $10 million
15. BASE YEAR FOR RATES AND
TAXES AND OUTGOINGS FOR THE
BUILDING 31 December 1998.
<PAGE>
4
5. WHAT ARE THE PROVISIONS OF THE NEW LEASE?
5.1 The provisions of the new lease must be the same as the provisions of
this lease, except that there is no right to renew the new lease.
6. WHAT RENT IS PAYABLE UNDER THE NEW LEASE?
6.1 If the commencing date of the new lease is a rent review date, the
rent payable under the new lease must be set as follows:
* if the commencing date is a market rent review date, the rent
payable under the new lease is set under clauses 11 and 12;
* if the commencing date is a market review date and the Landlord
does not set the rent using the market rent review procedure, the
rent payable for the first year of the new lease is the rent
payable during the last year of this lease;
6.2 If the commencing date of the new lease is not a rent review date, the
rent payable for the first year of the new lease is the same as the
rent payable during the last year of this lease.
WHAT MUST THE TENANT PAY?
7. WHAT THE TENANT HAS TO PAY
7.1 The Tenant must pay to the Landlord:
* the rent in item 9; and
* the charges for services supplied to the premises (see clause
13); and
* any other money owed under this lease.
8. INTEREST ON LATE PAYMENTS
8.1 If the Tenant does not pay any money to the Landlord within 7 days of
the time it is due, the Landlord may charge daily interest on that
money at a rate equal to the rate fixed under the Penalty Interest
Rates Act 1983 plus 2%.
8.2 The Landlord may calculate the interest on any unpaid money from the
day the unpaid money was due until the day it is paid.
8.3 On the last day of each month, the Landlord may add the interest for
that month to the unpaid money, and charge interest on the total
amount.
9. ADJUSTMENTS AND ERRORS
9.1 If the Landlord has to calculate the money the Tenant owes by using a
time period, and this lease starts or ends during that time period,
the Landlord must make the necessary proportional adjustment.
9.2 If either the Tenant or the Landlord prove an error in any
calculation, the Landlord must correct it and make any necessary
adjustment in the Tenant's next monthly statement (or as soon as
possible if this lease has expired).
<PAGE>
5
HOW MUCH RENT MUST THE TENANT PAY?
10. HOW MUST THE TENANT PAY RENT?
10.1 The Tenant must pay the rent:
* in equal monthly instalments; and
* in advance; and
* on or before the first day of each month.
11. MARKET RENT REVIEWS
11.1 If item 10 allows a market rent review, the Landlord may give the
Tenant notice of the new rent based on the current market rent at the
market rent review date in item 11. The Landlord must give the notice
during the period from 90 days before to 90 days after each market
rent review date.
11.2 The Tenant must pay the Landlord the new rent from the market rent
review date.
11.3 Until the Landlord notifies the Tenant of the new rent, the Tenant
must pay the current rent to the Landlord.
11.4 Any necessary adjustment between the rent the Tenant has paid and the
rent the Tenant should have paid is calculated from the market rent
review date.
11.5 If the Landlord is late in giving the Tenant notice, the Landlord
does not lose the right to a rent review. But, if the rent is
increased, the adjustment is only calculated from the day the
Landlord gave notice to the Tenant.
12. MARKET RENT REVIEW DISPUTES
12.1 If the Tenant disputes the rent nominated by the Landlord under
clause 11, the procedure in clause 12.2 must be followed. Each time
limit set out in clause 12.2 is consecutive. If a time limit is not
kept, the right attached is lost.
12.2 This is the procedure for rent review disputes.
* If the Tenant disputes the new rent, the Tenant must give the
Landlord notice of the dispute within 30 days of receiving the
Landlord's notice about the new rent.
* The Tenant and the Landlord must negotiate in good faith to
agree on a new rent within 30 days of the date of the Tenant's
notice of dispute.
* If the Tenant and the Landlord agree, the Tenant must pay the
new agreed rent from the market rent review date.
* If the Tenant and the Landlord to not agree, then within 7 days
either the Tenant or the Landlord may ask the President of the
Australian Institute of Valuers and Land Economists Inc -
Victorian Division (or an equivalent organisation) ("AIVLE") to
appoint an independent valuer to decide the new rent.
* The independent valuer must decide the current market rent at
the market rent review date within 30 days of being appointed.
<PAGE>
6
12.3 Until a dispute is resolved, or a right is lost, the Tenant must pay
the current rent. Any adjustment must be calculated from the relevant
date in clause 11. The Tenant must pay any adjustment (or the
Landlord must credit the Tenant with any adjustment) when the
Tenant's next monthly payment is due.
12.4 The valuation of the rent must take into account the following
factors:
* the use of the premises; and
* any inducement or incentive or both (for example: allowances,
payments, benefits, rent free periods, discounted rent periods,
assuming a liability) given by the Landlord to the Tenant, or a
person associated with the Tenant, for the Tenant entering into
this lease; and
* the fair market rent that can be obtained for the premises; and
* the provisions of this lease; and
* the rent payable for space comparable to the premises; and
* the basis for the determination is as follows:
* the promises are vacant and available for leasing by a
willing landlord to a willing tenant; and
* the Tenant is not in breach of this lease; and
* the requirements specified in Section 12(5) Retail Tenancies
Reform Act 1998.
12.5 But the valuation of the rent must not take into account the
following factors:
* the value of the Tenant's property; and
* any goodwill attributable to the premises due to the Tenant's
business; and
* any part of the fit-out that the Tenant may remove.
12.6 The independent valuer must have the following qualifications:
* current membership of the AIVLE; and
* at least five (5) years experience in valuing office space in
the Melbourne CBD.
12.7 In deciding the dispute, the independent valuer must act as an
independent expert and not as an arbitrator and must give written
reasons for the decision. The decision is final and binding on the
parties.
12.8 The Landlord and Tenant must share the cost of appointing the
independent valuer equally.
WHAT OTHER MONEY MUST THE TENANT PAY?
13. SERVICES
13.1 The Tenant must pay on time for all services supplied to the premises
including water consumption, electricity, gas, telephone, on floor
airconditioning costs and after hours airconditioning (including non
routine service calls requested by the Tenant).
<PAGE>
7
13.2 The premises are supplied with a self contained airconditioning
system and the Tenant is responsible for the cost of operating and
using the system (including non routine service calls requested by
the Tenant).
13.3 The Tenant is responsible for the cost of the activation and
maintenance of the electronic security devices servicing the
premises.
14. TENANT MUST PAY INCREASES IN RATES AND TAXES AND BUILDING OUTGOINGS
14.1 The Tenant must pay to the Landlord the Tenant's share of increases
in rates taxes or building outgoings assessed or levied on the
Building occurring after the commencing date.
14.2 If a new rate or tax or outgoings (that is, one that does not exist
at the commencing date) is assessed or levied on the Building, the
Tenant must pay to the Landlord the Tenant's share of the new rate or
tax or outgoings.
14.3 The Landlord must calculate the Tenant's share of the new rate tax or
outgoings or increases in rates taxes or outgoings using this
formula:
$ = N X P
-
B
where,
$ is the amount of the Tenant's share;
N is:
(i) the amount of the new rate; and/or
(ii) the difference between annual amount of the rates taxes and
outgoings levied or assessed on the Building from year to
year and the amount payable for the base year ending 31
December 1998.
P is the lettable area of the Premises; and
B is the net lettable area of the Building.
The lettable areas are calculated according to the Building Owners
and Managers Association Method of Measurement (1989 revision) or any
equivalent that the Landlord consents to. If the net lettable area
changes, the Landlord must adjust the Tenant's share proportionally.
14.4 The Landlord must tell the Tenant by notice of the amount payable.
The Tenant must pay this amount within 7 days of the date of the
Landlord's notice.
15. LANDLORD'S LEGAL AND OTHER COSTS
15.1 The Tenant must pay:
* the Landlord's costs permitted by the Retail Tenancies Reform
Act 1998 arising out of this lease and any other transaction
arising out of this lease (for example: assignment, subletting);
and
* stamp duty on this lease or any other document arising out of
this lease; and
<PAGE>
8
* the Landlord's reasonable legal and other costs arising out of
the Tenant's breach of this lease (for example, preparing a
notice of breach (see clause 43), remedying the breach (see
clauses 43 and 44)); and
* the Landlord's reasonable costs of considering the Tenant's
request for the Landlord's consent [for example, the cost of
employing consultants to review the Tenant's plans or altering
the premises (see clause 25), the cost of investigating the
financial position of a proposed assignee (see clause 20)]; and
* cost of additional keys and any security passes requested by the
Tenant; and
* cost of basic plumbing repairs; and
* cost of establishing and maintaining the Tenant's name on the
ground floor directory board.
SECURITY DEPOSIT
16. SECURITY DEPOSIT
16.1 On or before the commencing date, the Tenant must give the Landlord
the security deposit in item 13 by bank cheque or unconditional bank
guarantee.
16.2 The Landlord may use the security deposit to recover the Landlord's
loss due to the Tenant's breach (see clause 44). The Tenant must
promptly replace any amount used.
16.3 If the rent increases, the amount of the security deposit increases
in the same proportion. The Tenant must give the extra amount for the
security deposit to the Landlord by bank cheque or by increasing the
unconditional bank guarantee within 14 days of any rent increase.
16.4 When this lease ends and the Tenant has vacated the premises, the
Landlord must promptly refund to the Tenant any part of the security
deposit not needed to recover the Landlord's loss.
16.5 If the Landlord sells the premises or the Building, the Tenant must
do whatever is necessary to give the new owner the benefit of the
security deposit.
WHAT ARE THE TENANT'S GENERAL OBLIGATIONS?
17. THE TENANT MUST OBEY THE LAW AND THE BUILDING RULES
17.1 The Tenant must obey any law or proper notice from the body corporate
that requires the Tenant to do anything concerning:
* the premises; or
* the Tenant's use of the premises; or
* this lease.
17.2 But the Tenant is not required to do anything of a structural nature.
The Landlord is responsible for all items of a structural nature.
17.3 The Tenant must obey the building rules. A notice from the body
corporate or the Landlord listing the building rules is conclusive
proof of the rules in force.
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18. HOW THE TENANT SHOULD BEHAVE
18.1 The Tenant must not do anything that is, or may be, dangerous,
annoying, indecent, immoral, obscene or offensive to, or that may
interfere with, other tenants or people in the Building or adjacent
buildings.
18.2 In particular, the Tenant must not allow nude or partially dressed
people on the premises.
19. USING THE COMMON AREA
19.1 The Tenant may use the common area in common with other tenants or
people in the Building.
ASSIGNMENT
20. LETTING OTHERS OCCUPY THE PREMISES
20.1 The Tenant must get the Landlord's consent before the Tenant deals
with the premises or the Tenant's interest in the premises (for
example: mortgaging, assigning, subleasing, sharing or licensing it).
20.2 The Landlord must give consent if the following criteria are obeyed:
* the Tenant proves to the Landlord that the new person is
financially secure, able to make the payments required by this
lease on time and able to comply with the Tenant's other
obligations;
* the Tenant does anything that the Landlord reasonable requires
concerning the dealing (for example: giving the Landlord a
stamped assignment of lease in a form approved by the Landlord);
* the Tenant and the new person sign any agreement (for example;
deed of consent) or give any security (for example; personal
guarantee, bank guarantee, security deposit) that the Landlord
reasonably requires; and
* the Tenant is not in breach of this lease.
20.3 Section 144 of the Property Law Act 1958 does not apply to this lease
(this deals with withholding the Landlord's consent and the money
payable by the Tenant for getting the Landlord's consent).
21. USING THIS LEASE ETC AS SECURITY
21.1 The Tenant must get the Landlord's consent before the Tenant uses
this lease as security.
WHAT ARE THE TENANT'S OBLIGATIONS CONCERNING THE PREMISES?
22. Use
22.1 The Tenant may only use the premises for the purpose set out in item
5.
22.2 The Tenant must not put any safe or other heavy articles in the
premises unless the Tenant gets the Landlord's consent to do so.
22.3 The Tenant must not put any plate, sign or advertisement outside the
premises or on the inside face of the windows unless the Tenant gets
the Landlord's consent to do so.
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22.4 The Tenant must not use the premises in way that interferes with the
usual operation of services which the Landlord supplies to the
premises or the Building.
22.5 The Tenant must not store dangerous substances (for example:
hazardous chemicals, flammable liquids, acetylene gas or alcohol,
explosive oils compounds or substances) on the premises or in the
Building.
23. LETTING OTHERS ONTO THE PREMISES
23.1 The Tenant is responsible for the conduct of all people that the
Tenant allows on the premises (for example, the Tenant's customers,
employees, contractors and agents).
23.2 But the Tenant is not responsible for the conduct of the people the
Landlord requires to be on the premises (for example, the Landlord's
employees and agents).
24. MAINTAINING THE PREMISES AND THE TENANT'S PROPERTY
24.1 The Tenant must keep the premises clean and tidy and in the same
condition as they were in at the commencing date, except for fair
wear and tear (for example, the Tenant must repair damage and replace
broken fittings). The Tenant is responsible for the tenancy area
cleaning and waste management costs.
24.2 The Tenant must maintain, repair and keep the Tenant's property in
good condition.
24.3 The Tenant must repair or replace all broken glass with glass of the
same or similar quality. The Tenant must repair or replace all light
tubes and associated fittings.
24.4 Unless the Tenant causes the damage, the Tenant does not have to
repair structural or capital items.
25. DAMAGE CAUSED BY THE TENANT
25.1 The Tenant must promptly repair any damage the Tenant causes to the
Building or the premises.
26. ALTERING THE PREMISES
26.1 The Tenant must get the Landlord's consent before the Tenant does
building work in the premises, for example:
* alterations,
* installation of equipment,
* re-designing the interior,
* building of partitions.
26.2 The Tenant must get the necessary permits (for example: building
permits, plumbing permits) to allow the Tenant to carry out building
work and must get an occupancy permit or certificate of final
inspection when necessary.
26.3 If the Landlord asks, the Tenant must promptly give copies of all
permits and certificates to the Landlord.