Exhibit
4.3


 


LEASE


New
South Wales


Real
Property Act 1900


 


	
   

  	
   

  	
  8154137H

  
	
   

  	
   

  
	
  STAMP DUTY

  	
  Office of State Revenue
  use only

  
	
   

  	
   

  
	
   

  	
   

  
	
  A) TORRENS
  TITLE

  	
  Property leased if
  appropriate, specify the part of premises

  
	
   

  	
   

  
	
   

  	
  Unit 2, 8-10 Rodborough
  Road, Frenchs Forest BEING part of the Land in Folio Identifier 2/737438

  
	
   

  	
   

  
	
   

  	
   

  
	
  (B) LODGED BY

  	
  LTO BOX

  	
  Name, Address or DX and
  Telephone

  	
  CODE

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Allen Arthur Robinson

  	
   

  
	
   

  	
   

  	
  DX 105 Sydney

  	
   

  
	
   

  	
  743

  	
  Ph: 9230 4000

  	
  L

  
	
   

  	
   

  	
  XUMS 8033603

  	
   

  
	
   

  	
   

  
	
  C) LESSOR

  	
  TRUST COMPANY OF AUSTRALIA
  LIMITED A.C.N. 004 027 749 of 80-84 New South Head Road, Edgecliff 

  
	
   

  	
   

  
	
   

  	
  The lessor leases to the
  lessee the property referred to above.

  
	
   

  	
   

  
	
  D)

  	
  Encumbrances (if
  applicable):

  	
  1. Mfg 6787970

  	
  2.

  	
  3.

  
	
   

  	
   

  
	
  E) LESSEE

  	
  AORTECH BIOMATERIALS PTY
  LIMITED A.B.N. 079 265 286 of 126 Greville Street, Chatswood

  
	
   

  	
   

  
	
   

  	
   

  
	
  F)

  	
   

  
								



 


	
  G)

  	
  1.

  	
  TERM : Five (5) Years 

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.

  	
  COMMENCING DATE:

  	
  22 June 2001

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.

  	
  TERMINATING DATE:

  	
  21 June 2006

  
	
   

  	
   

  	
   

  
	
   

  	
  4.

  	
  With an OPTION TO RENEW for a period of 5 years set out in Clause
  19

  
	
   

  	
   

  	
   

  
	
   

  	
  5.

  	
  [deleted]

  
	
   

  	
   

  	
   

  
	
   

  	
  6.

  	
  Together with and
  reserving the RIGHTS set out in ANNEXURE “A”

  
	
   

  	
   

  	
   

  
	
   

  	
  7.

  	
  Incorporates the
  provisions set out in ANNEXURE “A”
  hereto.

  
	
   

  	
   

  	
   

  
	
   

  	
  8.

  	
  [deleted]

  
	
   

  	
   

  	
   

  
	
   

  	
  9.

  	
  I certify that this lease
  (including any annexure) comprises 46 pages numbered in sequence with this
  form. 

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Full name and position

  	
  Signature.

  
					



 


 


	
  All handwriting must be in
  block capitals

  	
   

  	
  LTO use:

  
	
    set of notes
  on this form (97-07L-2)

  	
   

  	
  Total pages:

  
	
  available from the Land
  Titles Office

  	
   

  	
  Checked by:   [ILLEGIBLE]

  



 


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ANNEXURE “A” REFERRED TO IN THE
LEASE BETWEEN TRUST COMPANY OF AUSTRALIA LIMITED (LESSOR) AND AORTECH
BIOMATERIALS PTY LIMITED (LESSEE)


 


DATED 22nd DAY OF June 2001


 


1.                                      EXCLUSION OF STATUTORY PROVISIONS


 


The Lessee shall take the Premises subject to
such of the covenants conditions and restrictions implied by Sections 84 and 85
of the Conveyancing Act 1919 as are not expressly negatived or modified.


 


2.                                      DEFINITIONS


 


2.1                                 In this Lease and any Rules and Regulations
(unless the contrary intention appears):


 


“Lessor” means the Lessor referred to on the front
page of this Lease and its successors and assigns (and where an individual the
Lessor’s legal personal representatives).


 


“Lessee” means the Lessee referred to on the front
page of this Lease and the successors and permitted assigns of the Lessee (and
where an individual the Lessee’s legal personal representatives) and where the
context permits, the employees, invitees, licensees, contractors, subtenants
and agents of the Lessee.


 


“Land” means the land so described in the Reference
Schedule.


 


“Premises” or “premises”
means the premises described in Reference Schedule and the Lessor’s Property
including the pipes and connections to all services and supplies from the point
where they enter the Premises.


 


Where the Premises comprise the whole of a
building or part, the boundaries of the Premises are:


 


(a)                                  the outside surface of perimeter walls (under
any paint or wall covering) and the outside surface of any windows and access
doors and shutters in them;


 


(b)                                 the lower surface of the ceiling (above any
false or suspended ceiling);


 


(c)                                  the upper surface of the floor (under any
floor covering);


 


(d)                                 the central line of partitions separating the
Premises from other adjoining premises; and


 


(e)                                  the external surface of partitions and doors
separating the Premises from the Common Area.


 


“Building” means the building or buildings and other
improvements erected or to be erected on the Land from time to time together
with any extensions modifications or alterations.


 


[ILLEGIBLE]


 


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“Common Area” means those parts of the Land or Building
designated by the Lessor from time to time to be used for common use by the
Lessee and other occupants, their employees, customers, contractors, agents and
the public.


 


“Lessor’s Property” means all plant, equipment, fixtures,
fittings, furniture, furnishings and other property of the Lessor provided in
the premises from time to time.


 


“the term” means the period from and including the
commencement date of this lease up to and including its termination date.


 


Interpretation


 


2.2                                 In this lease unless the contrary intention
appears:


 


(a)                                  a reference in this lease to another
instrument includes any variation or replacement of any of them;


 


(b)                                 a reference to a statute, ordinance, code or
other law includes regulations and other instruments under it and
consolidations, amendments, re-enactments or replacements of any of them
occurring at any time before or after the date of this lease;


 


(c)                                  the singular includes the plural and vice
versa;


 


(d)                                 the word “person” includes a firm, a body
corporate, an unincorporated association or an authority;


 


(e)                                  a reference to a person includes a reference
to the persons, executors, administrators, successors, substitutes (including
without limitation, persons taking by novation) and assigns;


 


(f)                                    an agreement, representation or warranty in
favour of two or more persons is for the benefit of them jointly and severally;


 


(g)                                 an agreement, representation or warranty on
the part of two or more persons binds them jointly and severally;


 


(h)                                 a reference to “month” is to “calendar month”;
and


 


(i)                                     a reference to “writing” includes any mode of
representing and reproducing words in tangible and permanently visible form and
includes telex and facsimile transmission.


 


2.3                                 Headings are inserted for convenience and do
not affect interpretation.


 


2.4                                 A provision of this lease which is void,
voidable by any party unenforceable or illegal must be read down to the extent
required to give the provision legal effect.


 


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2.5                                 This lease constitutes the entire agreement
between the parties and supersedes all previous negotiations and agreements in
relation to the transaction.


 


3.                                      RENT AND REVIEW OF RENT


 


3.1                                 During the term of this lease and any holding
over, the Lessee must pay the rent specified in the Reference Schedule (as
varied pursuant to Schedule 1) free of set-off, deduction or counter claim:


 


(a)                                  to the Lessor at the Lessor’s address
specified in this lease or as the Lessor directs (including by Bank Order); and


 


(b)                                 by equal monthly instalments in advance on
the first day of each month from the commencement of this lease.


 


3.2                                 If the date of commencement of this lease is
not the first day of a month, the Lessee must pay proportional instalments for
the first and last months of the term.


 


3.3                                 The rent may be reviewed by the Lessor in
accordance with Schedule 1.


 


4.                                      OUTGOINGS AND SERVICES


 


4.1                                 The Lessee must pay Outgoings in accordance
with Schedule 2 or reimburse the Lessor for any Outgoings the Lessor may pay.


 


4.2                                 The Lessee must pay charges when due for all
services provided by the Lessor and by Authorities to the Premises including
gas, electricity, water, air conditioning, garbage and trade waste removal.


 


4.3                                 If the Lessor provides a cleaning service for
the Premises, the Lessee must pay the monthly cleaning charge with the rent.


 


4.4                                 Unless otherwise agreed between the parties,
the Lessee is not liable to pay charges for:


 


(a)                                  the connection of gas, electricity, water and
sewerage services to the Premises; or


 


(b)                                 the installation of separate water and
electricity meters for the Premises.


 


5.                                      DAMAGE TO PREMISES


 


If
the Premises or the Building any part shall at any time be damaged or destroyed
so as to render the Premises or any part wholly or substantially unfit for the
occupation and use of the Lessee or, (having regard to the nature and location
of the Premises and the normal means of access) wholly or substantially
inaccessible, then and so often as the same shall happen:


 


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5.1                                 except where such damage or destruction has
been caused or contributed to or arises from any act or omission of the Lessee
or the Lessee’s employees and agents or any policy or policies of insurance
effected by the Lessor in respect of loss or damage to the Building shall have
been vitiated or payment of the policy moneys refused in consequence of some
act or omission of the Lessee:


 


(a)                                  a proportionate part of the rent and the
Lessee’s proportion of the Lessor’s Outgoings (if payable) according to the
nature and extent of the damage sustained shall abate and all or any remedies
for recovery of such proportionate part of the rent and Lessee’s proportion of
Lessor’s Outgoings falling due after such damage shall be suspended until the
Premises have been restored or made fit for the occupation and use of the
Lessee (or accessible to the Lessee, as the case may be);


 


(b)                                 this Lease may be determined by written
notice by either the Lessor or the Lessee without liability attaching to either
party by reason of such determination PROVIDED THAT
the Lessee shall not be entitled to so determine this Lease if the Lessor
within a period of 6 months after the occurrence of the destruction or damage
shall have commenced to reinstate the Premises and make them fit for occupation
and use of the Lessee (or accessible to the Lessee, as the case may be);


 


(c)                                  if the Lessor commences to reinstate the
Premises (or to make the Premises accessible as the case may be) and THEN does not, within a reasonable time (having regard to
the extent of the damage or destruction and the time expected to commence and
carry out the necessary works), reinstate the Premises, or make them fit for
the occupation and use of the Lessee, (or render them accessible as the case
may be), the Lessee may serve on the Lessor notice of intention to terminate
this Lease, and, unless the Lessor shall upon receipt of that notice proceed
with reasonable expedition and diligence to reinstate the Premises, or make
them fit for such occupation and use, (or render them accessible as the case
may be), the Lessee may terminate this Lease by giving not less than one (1)
month’s notice in writing to the Lessor, and at the expiration of the last
mentioned notice, this Lease shall be at an end;


 


5.2                                 if in the Lessor’s reasonable opinion such
damage to the Building or the Premises is such that it is impractical or
undesirable to reinstate the Premises, or make them fit for the occupation and
use of the Lessee (or render them accessible as the case may be), the Lessor
may terminate this Lease by giving one (1) month’s notice in writing to the
Lessee and at the expiration of that notice this Lease shall be at an end;


 


5.3                                 no liability shall attach to the Lessor or
the Lessee by reason of termination of this Lease pursuant to this clause but,
any such termination shall be without prejudice to the rights of either party
in respect of any antecedent breach or non observance of this Lease;


 


5.4                                 any dispute arising under this clause shall
be determined by a loss assessor being a member of the Insurance Council of
Australia Limited (or succeeding body) appointed by the President for the time
being of the said Council.  The person so
appointed shall be an assessor having


 


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substantial experience in
assessing buildings of a similar type within the appropriate area in which the
Building is located or other comparable area and shall in making his
determination act as an expert and not as an arbitrator and his determination
shall be final and binding on both parties. 
The cost of any such determination shall be borne by either or both of
the parties (and if by both of the parties in the proportion between them) as
the person making the determination shall decide; and 


 


5.5                                 nothing contained in this clause shall impose
upon the Lessor any obligation to reinstate the Building or the Premises.


 


6.                                      USE AND SIGNAGE


 


6.1                                 The Lessee must use the Premises only for the
use stated in the Reference Schedule.


 


6.2                                 The Lessee must not:


 


(a)                                  carry on any auction sale upon the Premises;


 


(b)                                 use or permit the Premises to be used as a
shop or sleeping place;


 


(c)                                  carry on any noxious or offensive act trade
business occupation or calling other than any act or thing reasonably necessary
for, and incidental to, the use of the Premises permitted by this lease; or


 


(d)                                 use the Premises in any noxious or offensive
manner or do or permit to be done anything which in the reasonable opinion of
the Lessor may be or become a nuisance disturbance or cause of damage to the
Lessor or other occupiers of the Land or adjoining premises other than any act
or thing reasonably necessary for, and incidental to, the use of the Premises
permitted by this lease.


 


6.3                                 The Leasee will not paint affix or place upon
any part of the Premises any sign, name, notice or other device or
advertisement without the prior written consent of the Lessor (which shall not
be unreasonably withheld where such signs are in keeping with the standards in
a Building relating to signage and the consent of any Authorities is obtained).


 


6.4                                 Deleted.


 


7.                                      REPAIRS, MAINTENANCE AND
COMPLIANCE WITH LAWS


 


7.1                                 The Lessee must:


 


(a)                                  keep and maintain the Premises (including any
vehicular access doors) in the same condition and state of repair as they were
at the commencement of this lease (or any earlier lease if this lease is
granted pursuant to an option) except for fair wear and tear.  The Lessor and the Lessee may agree on a
condition report of the Premises as at the commencement of this lease;


 


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(b)                                 repair or replace all plate glass damaged or
broken by the Lessee;


 


(c)                                  repair or replace all defective heating,
lighting and electrical equipment and plumbing installed in the Premises
including light globes, tubes, switches and power points;


 


(d)                                 keep and maintain the waste pipes drains and
conduits contained in the Premises in a clean clear and free flowing condition
and at its own expense employ licensed tradesmen to clear any blockages which
may occur within the demised premises; and


 


(e)                                  comply with all laws and all legal
requirements concerning its use and occupation of the Premises.


 


7.2                                 (a)                                  Despite clause 7.1 the Lessee need not:


 


(i)                                     make structural repairs to the Premises; or


 


(ii)                                  replace items of a capital nature,


 


unless
they arise because of any act, omission or breach of this lease by the Lessee
or its employees or agents or unless they are required because of the Lessee’s
use of the Premises.


 


(b)                                 The Lessee is not responsible for repairs
required as a result of natural disasters, deliberate damage or accident, such
as fire, flood, storm, earthquake, explosion, which are beyond the Lessee’s responsibility
or control, unless:


 


(i)                                     the damage occurred as a result of or was
substantially contributed to by the Lessee’s act or omission; or


 


(ii)                                  the Lessor is unable to recover from its
insurer insurance money for the damage because of some act or omission,
neglect, default or misconduct by the Lessee or by other persons for whose
conduct the Lessee is responsible.


 


7.3                                 The Lessee must:


 


(a)                                  ensure that all air-conditioning plant, fire
equipment and all other plant machinery installations and equipment in the
Premises (collectively called “plant”) are only used for their proper purpose
and must maintain keep such plant in good repair and condition having regard to
its condition at the commencement of this Lease (or at the commencement of any
prior lease if this lease is granted pursuant to an option) or at the time of
any replacement, except for fair wear and tear but the Lessee shall not be
liable for any expenses of a capital nature unless they result from the Lessee’s
failure to so maintain the plant; and


 


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(b)                                 enter into and keep current during this Lease
a maintenance contract with such responsible specialist contractors as
reasonably approved by the Lessor for the regular inspection, service, maintenance
and repair (including the testing and inspection of such equipment pursuant to
the requirements of all authorities) of all such plant and shall pay all fees
and other charges payable to such contractors. 
In particular, the service maintenance contracts for the
air-conditioning plant shall include provisions for inspection of such plant
not less frequently than once every three months.


 


7.4                                 The Lessee will redecorate on each of the
redecoration dates referred to in the Reference Schedule.


 


7.5                                 In this clause “redecoration” means painting
or otherwise decorating (including workmanlike preparation) with two coats of
good quality paint or other appropriate decorative material all painted
surfaces within the Premises, as well as the painted surfaces on the walls
immediately outside of the Premises including the use of two pack polyurethane
on all metal surfaces (including any roller doors) and repriming where coated
surfaces have been damaged or broken down.


 


7.6                                 If the Lessee fails to so redecorate, then the
Lessor may do so and recover the costs from the Lessee, together with an amount
equal to such rents and other amounts which the Lessor would have been entitled
to receive from the Lessee had the period (within which such decorating is
carried out by the Lessor) been added to the term of this Lease.


 


7.7                                 If this lease is terminated before its expiry
date (for any reason whatsoever), then in addition to clause 7.4 the Lessee
must at the sole election of the Lessor (effective as at such termination)
either:


 


(a)                                  carry out the redecoration; or


 


(b)                                 pay to the Lessor an amount (agreed between
the parties or failing agreement as determined by a quantity surveyor nominated
by the Lessor) which represents the reasonable cost to the Lessor of such
redecoration.


 


7.8                                 The Lessee must:


 


(a)                                  keep the Premises clean and tidy and free of
pests and vermin and regularly remove all rubbish; and


 


(b)                                 comply with any Lessor’s directions about
refuse removal and recycling.


 


7.9                                 The Lessor will notify the Lessee (if
possible) of any interruption or any service provided under this Lease and
reinstate the service as soon as practicable after such interruption.


 


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8.                                      ALTERATIONS TO THE PREMISES


 


8.1                                 The Lessee must not make any alterations or
additions to the Premises without the Lessor’s written consent (which consent
must not be unreasonably withheld).


 


8.2                                 If the Lessor gives approval, it may impose
conditions including specifying in writing:


 


(a)                                  which parts of the Premises may not be
reinstated and which parts must be; and


 


(b)                                 which items of the Lessee’s property
installed as part of the works may not be removed,


 


when the Lease terminates.


 


8.3                                 The Lessee must ensure that any works it
does, are done:


 


(a)                                  in a proper and workmanlike manner and at its
sole risk;


 


(b)                                 in accordance with any plans, specifications
and schedule of finishes required and approved by the Lessor (who may not
unreasonably withhold its approval);


 


(c)                                  in accordance with the laws and the
requirements of authorities; and


 


(d)                                 in accordance with the Lessor’s reasonable
requirements and directions.


 


8.4                                 If such alterations or additions require
consequential changes to the sprinkler system, fire control installations or
other services in the Building or the Premises then the Lessee must ensure such
changes comply with all requirements of the relevant authorities.


 


8.5                                 After completion of such works the Lessee
must provide the Lessor with a suitable copy of the as built drawings duly
approved where necessary by all relevant authorities.


 


8.6                                 Any alterations or additions made by the
Lessee under this clause shall be made at the cost of the Lessee who will be
responsible for their maintenance and repair. 
Upon the termination or expiry of this Lease but subject to clause 8.2,
the Lessee will upon request by the Lessor remove the same and make good any
damage to the Premises occasioned by such removal and reinstate the Premises to
the same condition existing at the commencement of the lease (or the earlier
lease if this lease is granted pursuant to an option to renew).


 


8.7                                 Any such alterations or additions and
reinstatement shall be carried out by suitably qualified contractors approved
by the Lessor (which approval shall not be unreasonably withheld) and the
Lessee hereby indemnifies the Lessor from and against all injury or damage
suffered or incurred by the Lessor relating to say such alterations, additions
and reinstatement.


 


8.8                                 Despite clause 8.1, the Lessee may, without
the Lessor’s consent, install in the Premises any cables, wiring, and similar
items which are required in the reasonable opinion of the Lessee


 


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to
operate its business from the Premises.


 


9.                                      INSURANCES


 


9.1                                 The Lessee must maintain in respect of the
Premises the following policies of insurance for:


 


(a)                                  public liability for at least the amount set
out in the Reference Schedule (or for such greater amount as the Lessor
reasonably requires from time to time consistent with general good industry
practice) including where reasonable to do so a cross liability and waiver of
subrogation clause and bearing endorsement to cover “Lessee’s liability
extension”; “lease liability extension”; and the liability of the Lessee to the
Lessor under Clause 10 of this lease;


 


(b)                                 loss or damage to Lessee’s fixtures and
fittings;


 


(c)                                  plate glass for its full replacements value;
and


 


(d)                                 other insurances which are required by law or
which, in the Lessor’s reasonable opinion, a prudent Lessee would take out
including those in connection with any tenant’s works on the Premises.


 


9.2                                 The Lessee must:


 


(a)                                  ensure all policies are placed with a
reputable and solvent insurer reasonably approved by the Lessor and contain
such conditions endorsements and exclusions as are reasonably acceptable to or
reasonably required by the Lessor;


 


(b)                                 not make any alterations to the policies
unless first approved in writing by the Lessor;


 


(c)                                  take such policies out in the name of the
Lessee, the Lessor and any other interested person named by the Lessor;


 


(d)                                 notify the Lessor immediately if any such
policy is cancelled or an event occurs which may allow a claim or affect rights
under any policy; and


 


(e)                                  produce to the Lessor duplicate or certified
copies of the policies and all renewal certificates and endorsement slips or an
appropriate Certificate of Currency upon request by the Lessor.


 


9.3                                 The Lessor shall be entitled to conduct or
settle any claims which relate to the premises under such insurance policies.


 


9.4                                 The Lessee must not do anything or bring or
keep anything whereby:


 


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(a)                                  any insurances effected by the Lessor or by
the Lessee referred to in this Lease or any other insurance may be vitiated or
rendered void or voidable; or


 


(b)                                 the rate of premium on such insurances shall
be liable to be increased, unless the Lessee pays all additional premiums and
expenses of such insurance as well as any additional premium and expenses
caused by the use to which the Premises are put by the Lessee.


 


9.5                                 (a)                                  It shall be a condition of each insurance
effected by the Lessee (except for workers’ compensation), or the insurer
should provide a written undertaking to the Lessor, that the insurance shall
not be cancelled by the insurer or its terms or conditions or the cover
provided under the insurance shall not be materially altered, except after the
insurer shall have given to the Lessor not less than fourteen (14) days prior
written notice of its intention relating to any of those matters.


 


(b)                                 Each of the insurance policies effected by
the Lessee (except for workers’ compensation) shall contain a waiver of the
insurer’s rights of subrogation against the Lessor and the Lessee arising out
of any claim under the policy.


 


10.                               INDEMNITIES & RELEASE


 


10.1                           The Lessee agress to use and occupy the
Premises during the term of this lease at the Lessee’s risk as regards loss or
damage to the Lessee and the Lessee’s Property.


 


10.2                           The Lessee releases the Lessor from liability
or loss arising from and costs incurred by any of the following:


 


(a)                                  damage, loss injury or death;


 


(b)                                 Deleted;


 


(c)                                  the unavailability, interruption or
malfunction of a service connected to the Premises;


 


(d)                                 the operation of a statute, regulation or
notice issued by any Authority;


 


(e)                                  a strike, accident, riot, industrial action
or civil disturbance;


 


(f)                                    a fire, bomb threat or other emergency drill
or the Lessee vacating the Premises because of any such event.


 


10.3                           The Lessee indemnifies the Lessor from and
against any liability, loss, damage, expense costs or claim suffered or
incurred by the Lessor whether by act, omission or neglect of the Lessee or the
Lessee’s contractors, sub-tenants, licensees, agents, employees or invitees,
including to a third party, during or after the term of this lease, in respect
of or arising from:


 


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(a)                                  loss, damage or injury to property or person
caused or contributed to by the act, omission, neglect or default of the
Lessee;


 


(b)                                 the misuse whether by act or omission by the
Lessee of any services or facilities in the Building or in the Premises;


 


(c)                                  the overflow, leakage or escape of water,
gas, electricity, fire, or other materials or substances in or from the
Premises, caused or contributed to by the Lessee;


 


(d)                                 loss, damage or injury to property or person,
caused or contributed to by the Lessee arising out of its use of the Premises;


 


(e)                                  loss, damage or injury to property or
persons, caused or contributed to by the defective installation of plant, fixtures
and equipment in the Premises by the Lessee;


 


(f)                                    the Lessee’s failure to notify the Lessor
regarding any defect in the facilities or services in the Premises;


 


(g)                                 failure by the Lessee to comply with any laws
relating to occupational health and safety; and


 


(h)                                 an accident on or about the Premises not
caused or contributed to by the Lessor.


 


10.4                           The releases and indemnities under this
clause include any penalties, fines insurance claim excesses, legal and other
costs incurred by the Lessor but do not apply to the extent that the loss,
damage or injury was caused by the wilful act omission or neglect of the
Lessor, its employees or agents.


 


10.5                           The indemnities by the Lessee continue after
this lease expires or is terminated in respect of events occurring during the
term and the Lessor may enforce any indemnity before incurring any expenses.


 


11.                               ASSIGNMENT AND SUBLETTING


 


11.1                           The Lessee covenants and agrees that it will
not assign, transfer, sub-let or in any manner part with the possession of the
Premises or any part or assign the benefit of its estate or interest in this
lease or the Premises without the prior written consent of the Lessor which
shall only be given if:


 


(a)                                  it reasonably satisfies the Lessor that the
proposed new tenant or sub-tenant is respectable and financially sound and
capable of conducting the business permitted by this lease or such other
business approved by the Council and by the Lessor in its absolute discretion;


 


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(b)                                 in the case of a transfer, the proposed new
tenant signs an agreement relating to the transfer in a form reasonably
required by the Lessor whereby the new tenant agrees to observe the terms of
this lease as if it was the original tenant;


 


(c)                                  in the case of a sublease, the proposed
sub-tenant signs an agreement in a form reasonably required by the Lessor
whereby the subtenant agrees that it will not cause or contribute to a breach
of this lease by the Lessee and pays a market rental or acknowledges that the
rental paid is not a market rental;


 


(d)                                 the Lessee has provided a Bank Guarantee or
Security Bond (or if no Bank Guarantee or Security Bond is required whilst the
assignor is the Lessee), then the proposed new tenant must provide a substitute
equivalent Bank Guarantee or security bond after which the existing Bank
Guarantee or security bond will be released (to the extent it has not been
claimed upon).


 


(e)                                  there is no Bank Guarantee or security bond
required by the Lessee pursuant to this lease and the proposed new Lessee is a
company, then either (at the election of the Lessor) the directors or principal
shareholders of that company shall, execute and complete a Deed of Guarantee
and Indemnity in a form approved by the Lessor in respect of the performance of
the proposed new Lessee’s obligations under this lease or the proposed new
Lessee provides a bank guarantee equivalent to 6 months rental including
outgoing contributions; and


 


(f)                                    any default by the Lessee has been remedied
by the Lessee or waived by the Lessor;


 


(g)                                 an appropriate form of transfer or sublease
approved by the Lessor, is duly completed, executed, stamped and registered
without cost to the Lessor;


 


(h)                                 the Lessee pays the Lessor’s resonable costs
in respect of any such consent, including all fees and charges payable in
respect of any enquiries made by the Lessor as to the proposed new tenant or
sub-tenant; and


 


(i)                                     the Lessee establishes to the reasonable
satisfaction of the Lessor that the Local Council and all other relevant
authorities have given any necessary consent to the use of the Premises by the
proposed new tenant of sub-tenant.


 


11.2                           If there is a proposed change in the
shareholding of the Lessee or its holding company from that existing as at the
commencement date of this lease so that a different person or group of persons
will control the composition of the board of directors or more than 50% of the
shares giving a right to vote at general meetings, then that proposed change in
control is treated as a proposed transfer of this lease and the person or group
of persons acquiring control is treated as the proposed new Lessee and clause
11.1 applies.


 


11.3                           The Lessee may only create or allow to come
into existence:


 


(a)                                  any security over the Lessee’s interest in
this lease; or


 


13





















 


(b)                                 Deleted


 


with the Lessor’s approval
(which may not be unreasonably withheld).


 


11.4                           Nothing in this clause prohibits the Lessee
permitting its parent company or any related company (within the meaning of the
corporations law) sharing an office within the premises with the Lessee, provided
the Sub-Lease or Licence is in a form reasonably acceptable to the Lessor.


 


12.                               ADDITIONAL COVENANTS AND
ACKNOWLEDGEMENTS BY THE LESSEE


 


12.1                           The Lessee must:


 


(a)                                  upon the expiration or sooner determination
of the said term:


 


(i)                                     yield up the Premises in a clean and tidy
condition and in the same condition as they existed at the commencement of the
term (or the earlier term if this lease is granted pursuant to any option) except
for fair wear and tear;


 


(ii)                                  remove at the expense of the Lessee all
Lessee’s fillings and fixtures comprising the Lessee’s fitout and as well as
the fit out referred to in Clause 27 (except anything the Lessor has stated in
writing as a condition of any approval to Lessee’s works, need not be removed)
as well as lettering and distinctive marks or signs put up by the Lessee or by
the Lessor for the Lessee on the Premises or elsewhere and rectify any damage
by reason of such removal;


 


(iii)                               unless the Lessor otherwise agrees or directs
in writing, remove at the expense of the Lessee all Lessee’s fittings and
fixtures comprising the Lessee’s fitout and as well as the fit out referred to
in Clause 27;


 


(iv)                              ensure that any bolts securing storage
facilities that are fixed into the floor or walls are cut off or that the top
of such bolts are flush with the floor or wall level; and


 


(v)                                 return to the Lessor all keys, access cards
and similar devices for the Land and the Premises held by the Lessee and any
other person;


 


(b)                                 comply promptly with and observe at its own
expense all laws and the requirements of all Authorities with respect to the
business conducted at the Premises by the Lessee as well as with all such laws
and requirements with respect to the Premises except what would have issued or
be required irrespective of such use by the Lessee;


 


(c)                                  immediately notify the Lessor if the Premises
are damaged or any accident to or defect in any of the services connected to
the Premises occurs or the Lessee receives any notice from any Authority;


 


14





















 


(d)                                 pay upon demand;


 


(i)                                     all stamp duty and all the Lessor’s
reasonable and proper legal costs and disbursements of and incidental to the
preparation completion stamping and registration of this Lease and of any
consent required to it and of any surrender or other termination (otherwise
than by effluxion of time);


 


(ii)                                  in case of default by the Lessee, to the
Lessor all proper legal and other costs charges and expenses which the Lessor
may incur in consequence of or in connection with such default including
remedying the breach; and


 


(iii)                               all costs, charges and expenses in connection
with works the Lessee carries out, including those incurred by the Lessor in
considering, approving and supervising the works and those of modifying or
varying the Building because of the works;


 


(e)                                  pay interest to the Lessor on any amount
payable under this lease by the Lessee but unpaid for 14 days (or 7 days in the
case of rent and any contribution to the Lessor’s outgoings).  The rate of interest will be equal to 2%
above the highest rate for the time being charged by the Lessor’s Bankers on
commercial overdrafts for amounts exceeding $100,000.00 computed from the last
of the days specified in this lease that moneys are due until such payment is
received by the Lessor and will be compounded monthly on the monthly date
specified for payment of rent and will be recoverable in the same way as
arrears of rent;


 


(f)                                    indemnify the Lessor from and against all
claims which may be made upon the Lessor for injury or disease arising from
smoking or passive smoking by any person on the Premises.  If required by the Lessor the Lessee’s
insurance must be extended to include cover for such claims and include the
Lessor as an insured party; and


 


(g)                                 Deleted.


 


(h)                                 participate in any fire, bomb threat or other
emergency drill of which the Lessor gives notice including evacuating the
Premises if informed of any such act or suspected events.


 


12.2                           The Lessee must not:


 


(a)                                  Overload the structure of or services to the
Premises;


 


(b)                                 bring onto, store or use in the Premises any
inflammable, dangerous or explosive substances such as acetylene, industrial
alcohol, burning fluids, and chemicals, (including for heating or lighting the
Premises) unless the sale or use of such substances constitutes proper conduct
of the Lessee’s use permitted by this lease and the particular substances are
stored and used only whilst taking all necessary safety precautions and in compliance
with all fire and safety regulations relating to such substances (including the
reasonable requirements of the Lessor’s insurer);


 


15





















 


(c)                                  use or permit to be used or stored at the Premises
any radioactive, toxic or hazardous chemicals, wastes or substances, except in
concentrations and quantities permitted by the relevant statutory authorities
and in accordance with any licenses, permits or authorisations required by law
and in accordance with the conditions imposed by such authorities or under
their permission (including the reasonable requirements of the Lessor’s
insurer);


 


(d)                                 use upon the Premises any forklift truck or
pallet trolleys unless the same have been equipped with rubber or pneumatic tyres
(for the purpose of avoiding damage to floors by steel or hard nylon wheels);


 


(e)                                  place or keep any machinery, safe or heavy
articles or goods in the Premises of such weight and in such place or places
unless first approved by the Lessor in writing after consultation with its
engineers; or


 


(f)                                    make any use of the Premises whether for the
Lessee’s permitted business or otherwise (including but without prejudice to
the generality of the foregoing the installation or use of any machinery or the
employment of any persons) whereby any public or statutory authority may give
or issue or be entitled to give or issue any notice requiring structural
alterations or repairs to be made or carried out to the Premises, unless the
Lessee shall at its own cost and expense, comply with the requirements of such
notice.


 


12.3                           The Lessee acknowledges that:


 


(a)                                  it occupies the Premises at its own risk and
must not knowingly use the Premises in contradiction of any law;


 


(b)                                 subject to clause 13.2(f), it may not
terminate this lease seek compensation of damages or stop or reduce payments
under it because a service provided to the Premises is not available or is
interrupted or fails or the Lessor’s Property breaks down or a structural
repair has not been carried out or the Common Area is not clean;


 


(c)                                  subject to clause 13.2(f), the Lessor is
exempted from any liability to the Lessee for financial loss or inconvenience,
including for damages, abatement of rent or for repudiation and the tenant is
not entitled to terminate this lease because:


 


(i)                                     any of the services supplying the Premises is
out of order and or is not functioning properly or at all; or


 


(ii)                                  any such services are temporarily stopped or
interrupted pending inspection, repair, maintenance or replacement.


 


(d)                                 the Lessee’s property is at all times at the
Lessee’s risk;


 


16





















 


(e)                                  the Lessor may enforce its rights against the
Lessee whether or not the Lessor enforces its rights against other tenants or
occupiers of the Building or Land;


 


(f)                                    the Lessor does not expressly or impliedly
warrant that the Premises are now or will remain suitable or adequate for all
or any of the purposes of the Lessee and, subject to the law, all warranties
(if any) as to the suitability and adequateness of the Premises are hereby
expressly negatived; and


 


(g)                                 the Lessee and the Lessee’s employees and
agents may use the Common Area for the purposes for which it is intended,
subject to this lease and the Rules and Regulations.


 


12.4                           If the Lessee shall fail to remove the Lessee’s
property comprising fixtures and chattels or any property of its customers
employees permitted sub-tenants or licensees from the Premises at the expiry or
sooner termination of this Lease, the following provisions apply:


 


(a)                                  if the Lessor terminates this lease by
re-entry, the Lessee may give the Lessor a notice within 7 days after
termination that the Lessee wants to remove its property which the Lessee may
or must remove from the Premises;


 


(b)                                 within 7 days after the Lessee gives its
notice under subclause (a), the Lessor must give the Lessee a notice, stating
when and how the Lessee’s property is to be removed from the Premises and by
whom and may impose a condition, being the provision of a bank guarantee of a
reasonable amount, to secure the Lessor against damage to the Premises and the
Land by such removal;


 


(c)                                  the Lessor may treat the Lessee’s property as
if the Lessee had abandoned its interest in it and it had become the property
of the Lessor and deal with it in any way it sees fit at the Lessee’s expense
if the Lessee does not:


 


(i)                                     give the notice under subclause (a) on time;
or


 


(ii)                                  remove its property in accordance with this
clause or a notice given under it; or


 


(iii)                               remove its property at the expiration of the
term of this lease; and


 


(d)                                 the Lessee indemnifies the Lessor in respect
of all claims demands losses damages proceedings costs charges and expenses
which the Lessor may suffer or incur at the suit of any person (other than the
Lessee) claiming an interest in the Lessee’s property by reason of the Lessor
acting in any manner permitted by this clause.


 


17





















 


12.5                           If the Lessee fails to comply with clauses
12.1 and 12.4, the Lessee indemnifies the Lessor in respect of the cost of
complying with clauses 12.1 and 12.4 including making good any damage to the
Premises or the Building and until such time as the removal and making good
required by clauses 12.1 and 12.4 has been completed by the Lessee or by the Lessor
upon the Lessee’s default so as to permit reletting of the Premises, then the
Lessee must pay or allow to the Lessor by way of liquidated damages in relation
to any such default, a sum equivalent to the rent payable by the Lessee
immediately prior to the expiration or determination of the term of this lease
for the period until the Premises are made fit for reletting.


 


13.                               LESSOR’S COVENANTS


 


13.1                           Subject to the Lessor’s rights, while the
Lessee complies with its obligations under this lease, it may occupy the
Premises during the term without interference by the Lessor.


 


13.2                           During the term the Lessor must:


 


(a)                                  insure the Building with a responsible and
reputable insurance company for its reinstatement and replacement value;


 


(b)                                 pay all rates and taxes which are not payable
directly to the relevant Authority by the Lessee or any other tenant;


 


(c)                                  keep the Premises structurally sound and
maintain the Premises in good structural repair and condition having regard to
its condition at the commencement of the term (or the prior term if this lease
is granted pursuant to an option), and allowing for fair wear and tear;


 


(d)                                 keep the Common Area clean and tidy;


 


(e)                                  procure the consent of any mortgagee of the
Land to this lease; and


 


(f)                                    use all reasonable endeavours to ensure the
services available to the premises at the commencement of this Lease remain
available at all times and to re-instate or repair services (which are the
responsibility of the Lessor) as soon as practicable after receipt of
notification from the Lessee subject to any delays beyond the Lessor’s control.


 


14.                               LESSOR’S RIGHTS


 


14.1                           Subject to clause 14.2, the Lessor (or any
person having an estate or interest in the Premises superior to or concurrent
with the Lessor) may with or without its agents or contractors enter the
Premises to:


 


(a)                                  view the state of repair of the Premises;


 


18





















 


(b)                                 remedy any breach of this lease if the Lessee
does not remedy the breach after receiving 21 days notice of the breach;


 


(c)                                  fulfil its obligations under this lease; or


 


(d)                                 carry out any repairs, alterations or
additions, or other work which the Lessor considers necessary or desirable or
as required by any Authority or following any damage to the Premises.


 


14.2                           The Lessor must:


 


(a)                                  give reasonable prior notice of the Lessor’s
intention to enter the Premises (except in the case of emergency); and


 


(b)                                 use all reasonable endeavours to ensure any
works carried out pursuant to clause 14.1 do not unduly interfere with the use
of the Premises by the Lessee having regard to the nature of such works.


 


14.3                           The Lessor reserves the right of
uninterrupted passage of any services through pipes, ducts and wires in the
Premises.


 


14.4                           The Lessor may from time to time improve vary
extend or reduce the Common Area or the Land or in any manner alter or deal
with any part of the Building (other than the Premises) including changing the
direction or flow of pedestrian or vehicular traffic and the Lessee will make
no claim for compensation against the Lessor if the Lessor maintains reasonable
access to the Premises and to the Common Area for the parking of any motor
vehicles permitted to the Lessee and causes as little inconvenience to the
Lessee as is practicable in the circumstances.


 


14.5                           (a)                                  The Lessor may subdivide the Land (including
under the Strata Titles or Community Title Legislation) and, if necessary,
carry out construction or demolition works on the Land or temporarily interrupt
a service for that purpose if:


 


(i)                                     after the subdivision the Premises are
substantially the same; and


 


(ii)                                  this would not have a substantial adverse
effect on the Lessee’s Business.


 


(b)                                 The Lessee will execute any approval
reasonably required as a result of such subdivision.


 


14.6                           The Lessor may create easements or other
rights over the Land, the Building or the Premises unless this would have a
substantial adverse effect on the Lessee’s business or rights under this lease.


 


19





















 


14.7                           The Lessor has the right to use the exterior
walls and roof of the Building as well as the right to uninterrupted passage of
all pipes and cables passing through the Premises and the running of all
substances and services through them provided such pipes and cables do not
unreasonably interfere with the Lessee’s use and enjoyment of the Premises.


 


14.8                           After giving reasonable notice the Lessor may
enter the Premises to show prospective Purchasers through the Premises and
display from the Premises a sign indicating that the Premises or the Building
is for sale provided such sign does not obstruct any signs of the Lessee.


 


14.9                           Subject to Clause 14.2(a), within 6 calendar
months immediately preceding the expiration of the terms (unless the Lessee has
exercised any option to renew this lease), the Lessor may at all reasonable
times inspect the Premises with prospective tenants or occupiers and the Lessee
will allow the Lessor to exhibit a notice indicating that the Premises are
offered for leasing provided such sign does not obstruct any signs of the
Lessee.


 


14.10                     (a)                                  If the Lessor deals with its interest in the
Land so that another person becomes lessor, the Lessor is released from its
obligations under this lease arising after it ceases to be lessor.


 


(b)                                 If requested by the Lessor, the Lessee must
at the Lessor’s cost sign the documents that the other person reasonably
requires to give a direct contractual relationship with the Lessee.


 


(c)                                  Any obligation owed by the Lessee to the
Lessor which is due for performance before the Lessor ceases to be the Lessor
(including any rental or outgoing adjustment) remains owing to the Lessor as at
such time and is recoverable by the Lessor in its own name.


 


14.11                     After giving the Lessee reasonable notice,
the Lessor may do anything which the Lessee should have done under this lease
but which it has not done or which the Lessor considers it has not done
properly.


 


14.12                     The Lessor may appoint agents or others to
exercise any of its rights or perform any of its duties under this lease but
communications from the Lessor override those from the agents or others if they
are inconsistent.


 


15.                               DEFAULT BY THE LESSEE


 


15.1                           Each of the following constitutes a default
by the Lessee under this lease:


 


(a)                                  If the rent hereby reserved or any part thereof
or any contribution to the Lessor’s Outgoings shall be unpaid and in arrears
for 7 days after the same shall have become due whether any formal or other
demand shall have been made for such moneys; or


 


20





















 


(b)                                 if any other moneys payable by the Lessee to
the Lessor shall not have been paid within 14 days of the due date for such
monies; or


 


(c)                                  if the Lessee shall not commence effecting
the repairs required by any notice given by the Lessor to the Lessee within a
reasonable time after the giving of such notice; or


 


(d)                                 if the Lessee shall fail to observe perform
or fulfil any of the other terms covenants conditions and restrictions
contained on the part of the Lessee whether positive or negative after having
been given 30 days written notice by the Lessor specifying the failure; or


 


(e)                                  if the Lessee or any Guarantor (being a
company) enters into liquidation (otherwise than for the purpose of
reconstruction or amalgamation reasonably approved by the Lessor in writing) or
if a receiver or official manager or provisional liquidator or administrator is
appointed or enters into a scheme of arrangement or composition with or
assignment for the benefit of all or any clause of its creditors; or


 


(f)                                    if the interest of the Lessee under this
Lease is attached or taken in execution under any legal process; or


 


(g)                                 if the Lessee or any Guarantor (being an
individual) shall be declared bankrupt or insolvent according to law,


 


then the Lessee shall be deemed to have made default.


 


15.2                           If the Lessee shall have made such default,
the Lessor may (after first giving prior notice where required by law) at its
option:


 


(a)                                  re-enter into and take possession of the
Premises or any part in the name of the whole (by force if necessary) and eject
the Lessee and all other persons therefrom and repossess and enjoy the same as
of its first and former estate upon which event this lease shall be absolutely
terminated; or


 


(b)                                 by notice in writing to the Lessee terminate
this Lease (and from the date of giving such notice this Lease shall be
absolutely terminated); or


 


(c)                                  by notice in writing to the Lessee elect to
convert the said term into a tenancy from week to week in which event this
Lease shall be determined as from the giving of such notice and thereafter the
Lessee shall hold the Premises from the Lessor as Lessee from week to week at a
weekly rental equal to one (1) week’s proportion of the rent payable at such
time commencing from the date of service of such notice (such rental being
payable weekly in advance) but otherwise on the terms and conditions of this
Lease so far as they can be applied to a weekly tenancy.


 


21





















 


15.3                           The Lessee agrees that the following are
essential terms of this Lease:


 


(a)                                  the covenant to pay rent throughout the term
of the Lease on the due date for payment of each monthly installment of rent;
and


 


(b)                                 the covenant to pay the Lessee’s proportion
of the Lessor’s Outgoings; and


 


(c)                                  the covenant dealing with assignment,
transfer and subletting; and


 


(d)                                 the covenant relating to repair and
maintenance.


 


15.4                           If the Lessee makes or is deemed to have made
a default in the circumstances contained in this clause and if, as a
consequence of such a default, the Lessor:


 


(a)                                  determines the Lease by re-entry; or


 


(b)                                 determines the Lease by notice; or


 


(c)                                  converts the term into a tenancy from week to
week and if that tenancy is subsequently determined either by the Lessor or the
Lessee before the expiration of the whole of the term; or


 


(d)                                 accepts the surrender of this Lease;


 


THEN the Lessor in addition
to the remedies referred to in paragraphs (a), (b), (c) and (d) of this
subclause and in addition to any other rights and remedies the Lessor may have
or may have exercised, will be entitled to recover from the Lessee damages for
all loss suffered because this Lease will not have run the whole of its term,
such damages to include, but not to be limited to, the costs of recovery of
possession, the costs of reinstating the Premises, the costs of re-letting and
any loss occasioned arising out of any lapse of time before re-letting or any
re-letting at a rent and upon terms not as advantageous to the Lessor as the
terms of this Lease.


 


15.5                           In the event that the Lessee’s conduct
(whether acts or omissions) constitutes a repudiation of this Lease, the Lessee
covenants to compensate the Lessor for loss or damage suffered by reason of the
repudiation or breach during the entire term of this Lease.  The Lessor’s entitlement to recover damages
shall not be affected or limited if the Lessee shall abandon or vacate the
Premises or if the Lessor shall elect to re-enter or terminate the Lease or
accept the Lessee’s repudiation.


 


15.6                           If the Lessee shall fail to pay any moneys
payable by it to any person other than the Lessor or if the Lessee shall fail
to perform any affirmative covenant on the part of the Lessee, the Lessor may
at its option as the agent of the Lessee make any such payment or do all such
acts and things and incur such expenses as may be necessary to perform such
covenants and the full amount of any payments made or expenses incurred shall
constitute a


 


22





















 


liquidated debt due and
owing by the Lessee to the Lessor.


 


15.7                           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.


 


15.8                           Acceptance by the Lessor of arrears of rent
or other money or of any breach of this Lease does not constitute a waiver of
the Lessor’s rights.


 


15.9                           In the event of the Lessee vacating the
Premises with or without the Lessor’s consent, the Lessor shall be obliged to
take reasonable steps to mitigate its damages and to endeavour to re-lease the
Premises at a reasonable rent and on reasonable terms.


 


15.10                     The expiry or termination of this lease does
not affect the right of either party for a breach of this lease by the other
party before the expiry or termination.


 


16.                               RULES AND REGULATIONS


 


16.1                           The Lessee must observe and comply with the
Rules and Regulations contained in Schedule 3 (as from time to time varied,
added to, deleted or amended).


 


16.2                           The Lessor shall have the right at any time
and from time to time to delete vary amend or add to the said Rules and
Regulations in respect of the management, safety and control of the Land,
Building, and the Common Area or in the conduct of occupants.  The Lessee must observe and comply with such
deletions variations amendments or additions following notice in writing from
the Lessor.


 


16.3                           Despite the foregoing, no deletion,
variation, amendment or additions to such Rules and Regulations shall be
inconsistent with the rights of the Lessee in this Lease.


 


16.4                           The Lessee acknowledges and agrees that the
failure of the Lessee to keep any such Rules and Regulations as may from time
to time be in force shall constitute a breach of the terms of this Lease.


 


16.5                           The Lessor is not liable to the Lessee for
any alleged loss or damage in respect of the failure to enforce the Rules or
Regulations or any of them.


 


17.                               CAR PARKING


 


17.1                           For no additional consideration, the Lessor
also grants an exclusive licence to the Lessee its employees and agents to park
the number of motor vehicles referred to in the Reference Schedule in the
location as directed from time to time by the Lessor.


 


17.2                           The Lessee, shall park in the allotted spaces
only and at its risk and the Lessor shall not in any way be liable or
responsible for any loss damage or injury which may be sustained by the Lessee
or any of its servants or agents arising out of its exercise of its rights
conferred


 


23





















 


by this clause except to the
extent caused by the Lessor’s negligence or default.


 


17.3                           The Lessee indemnifies the Lessor against
liability or loss incurred or suffered by the Lessor in connection with any
damage, loss, injury or death caused or contributed to by the act neglect or
default of the Lessee or its employees or agents arising out of its exercise of
its rights conferred by this clause.


 


17.4                           The Lessee must give the Lessor prompt notice
in writing of any accident to or defect or want of repair in any services or
equipment in the car parking area and of any circumstances likely to cause any
damage or risk.


 


17.5                           The rights and benefits of the Lessee
contained in this clause:


 


(i)                                     are not severable from the other rights and
benefits of the Lessee contained in this Lease and accordingly shall not be
capable of being separately assigned or otherwise dealt with; and


 


(ii)                                  shall rest in contract only and shall not
create or confer upon the Lessee any tenancy or any estate or interest in or
over the car spaces.


 


17.6                           The Lessee must make good any damage
sustained to any bitumen, concrete or other paved surface of such car parking
area through neglect, default or misconduct on the part of the Lessee.


 


17.7                           The Lessee must keep the car spaces tidy and
only use them for car parking.


 


18.                               BANK GUARANTEE


 


18.1                           The Lessee must on or before the date of its
execution of this Lease deliver to the Lessor a guarantee by a Bank trading in
the State of New South Wales in the form of an unconditional and irrevocable
undertaking to pay on demand whether by one or more requests, without any
expiry date, drawn in favour of the Lessor, in a form reasonably acceptable to
the Lessor and for an amount equivalent to the number of months referred to in
the Reference Schedule in respect of rental including the Lessee’s proportion
of the Lessor’s Outgoings payable from time to time during this lease.


 


18.2                           The Lessor shall be entitled to immediately
demand payment from the Bank following any breach by the Lessee of its
obligations under this Lease (whether registered or not) and shall be entitled
to apply such amount as may be received towards the satisfaction of any amounts
that may be payable to the Lessor as a result of any such breach.


 


18.3                           Any application by the Lessor of the Bank
Guarantee pursuant to this clause shall not be deemed to waive the Lessee’s
breach.


 


18.4                           The Lessee must vary the amount of the said
Guarantee within 14 days of each rent review so that the said amount at all
times represents the amount referred to in clause 18.1.


 


24





















 


18.5                           If moneys are paid under the Bank Guarantee,
the Lessee must ensure that a replacement Guarantee is issued so that the
amount of the Guarantee held by the Lessor represents the amount contemplated
by this clause.


 


18.6                           If during the term of this lease the Lessor
shall transfer its ownership in the Premises and shall give written notice to
the Lessee requiring amendment or replacement of the Bank Guarantee to reflect
the new Lessor, then the Lessee shall at the Lessor’s cost comply with such
notice within 21 days of service.  In the
event of the failure of the Lessee to comply with this subclause, the Lessor
shall be at liberty to handover the Bank Guarantee to any such assignee or
transferee and thereupon the Lessor shall be discharged from all liability to
the Lessee or any other person in respect of the said Bank Guarantee.


 


18.7                           If the Lessee does not provide the Bank
Guarantee required by this clause the Lessor shall be entitled to terminate
this lease.


 


19.                               OPTION TO RENEW


 


If the Lessee:


 


(a)                                  requires a renewed lease of the Premises for
any further term specified in the Reference Schedule from the expiration of the
term of this Lease; and


 


(b)                                 gives to the Lessor written notice not less
than nine (9) calendar months prior to the expiration of the term of this lease,


 


THEN, if the Lessee is not at the expiration
of this term or at the date of giving of the said notice, any breach of this
Lease, the Lessor must grant and the Lessee must accept (but at expense of the
Lessee) a renewed lease of the Premises for the said further term on the same
conditions as this Lease (including all existing Bank Guarantees, Security
Deposits and other guarantees) except that:-


 


(c)                                  this clause shall not be included in the renewed
lease;


 


(d)                                 the rent payable at the commencement of the
renewed lease until the first rent review shall be the current market rent
calculated and determined in accordance with Schedule 1A as if the first day of
the term of the renewed lease was a “review date” and the terms and conditions
of the renewed lease shall be taken into account in substitution of the terms
and conditions of this Lease in such determination but in no event shall the
rent payable at the commencement of the option term be less than the rent
payable during the year immediately preceding the commencement of the option
term; and


 


(e)                                  the rental payable during the renewed lease
shall be subject to review in accordance with the provisions Schedule 1A and/or
1B and upon each rent review date(s) so specified in the Reference Schedule;
and


 


(f)                                    such alterations to the terms and conditions
which necessarily arise in the event that the premises have been converted to
an allotment under the Strata Titles Legislation during the initial term of
this lease PROVIDED THAT any alteration to outgoings arising as a result


 


25





















 


of such conversion must not
be greater than those outgoings which would have been payable if no conversion
had occurred.


 


20.                               ENVIRONMENTAL PROTECTION


 


20.1                           The Lessee agrees to comply with all
Environmental Protection Legislation during the term of this lease to the
extent that the Lessee causes any requirement of such legislation to be applied
to the Land and will not bring onto or allow to remain on the Land any
substance or material, the presence of which is, or with the passage of time
may, constitute or create an environmental contamination risk or hazard.


 


20.2                           The Lessee indemnifies the Lessor from and
against all costs, damages, penalties, fines, losses or claims which the Lessor
may sustain as a result of any breach of clause 20.1 by the Lessee including
the cost incurred by the Lessor in cleaning up and reinstating the Land,
disposing of any such materials and complying with all legal requirements in
the removal, storage, transportation and disposal of the material.


 


21.                               MEASUREMENT OF LETTABLE AREA


 


21.1                           If it should become necessary because of
changes or alterations to the Premises or the Building or because of the
creation of further building on the Land, to recalculate the lettable area of
the Premises or the Building, the Lessor shall be entitled to redetermine any
such area in accordance with the “Property Council of Australia Method of
Measurement 1997 Revision”, published or used by the Property Council of
Australia (or any subsequent revised method) based on the gross lettable area
for industrial premises.


 


21.2                           If any such measurement is altered during
this Lease, then recalculations of the lettable area shall be undertaken
including for rent review and the calculation of the Lessee’s percentage of
contributions to the Lessor’s Outgoings.


 


21.3                           A certificate by a surveyor or architect
produced by the Lessor indicating that person’s or firm’s calculations in
accordance with clause 21.1 or 21.2 is prima facie evidence of those
recalculations.


 


22.                               GENERAL


 


22.1                           If the Lessee continues to occupy the
Premises after the expiry of this lease with the Lessor’s approval, it does so
under a monthly tenancy:


 


(a)                                  which either party may terminate on 1 month’s
notice ending on any day;


 


(b)                                 at a rent which is one twelfth of the then
annual rent; and


 


(c)                                  on the same terms and conditions as this
Lease except those changes the Lessor requires as a condition of giving its
approval to the holding over.


 


26





















 


22.2                           A Notice or other document given pursuant to
this lease must be:


 


(a)                                  in writing signed by the party giving it or
by its director, manager, secretary or agent; and


 


(b)                                 delivered at or posed by prepaid post to the
address of the party as referred to in this Lease (as varied by any notice) or
sent by facsimile transmission to that party or served in accordance with
Section 170 of the Conveyancing Act.


 


22.3                           A notice or other document is taken to be
served:


 


(a)                                  if hand delivered, on the date of delivery;


 


(b)                                 if posted, on the second day after posting;
and


 


(c)                                  if sent by facsimile, on the next business
day after it is sent unless the sender is aware that transmission is impaired.


 


22.4                           A provision of or a right created under this
lease may not be waived or varied except in writing signed by the party to be
bound.


 


22.5                           If the Lessor:


 


(a)                                  accepts rent or other money under this lease
(before or after termination); or


 


(b)                                 does not exercise or delays exercising any
right under this Lease; or


 


(c)                                  gives any concession to the Lessee; or


 


(d)                                 attempts to mitigate its loss,


 


it is not a waiver of any
breach or of the Lessor’s rights under this lease.  An attempt by the Lessor to mitigate its loss
is not a surrender of this lease.


 


22.6                           Expiry or termination of this Lease does not
affect any rights in connection with a breach of this Lease before then or
affect the Lessee’s obligations to make payments under this Lease for periods
before then.


 


22.7                           The Lessee acknowledges that this Lease
contains the whole of the terms and conditions agreed between the parties and
the Lessee acknowledges that it has relied only on its own enquiries in
connection with this Lease and does not rely on any representation or warranty
by the Lessor or any person acting or seeming to act on the Lessor’s behalf
except as contained in this Lease.


 


22.8                           When an obligation contained in this Lease
prohibits the Lessee from doing anything, it also prohibits the Lessee from authorising
or allowing it to be done by any other person.


 


27





















 


22.9                           (a)                                  The Lessee may not, subject to subclause (b),
lodge a caveat on the title to the land, if the only purpose of the caveat is
to ensure that it is enforceable against the Lessor’s successors in title.


 


(b)                                 The Lessee may lodge a caveat noting the
Lessee’s interest under this lease if this lease is not registered.


 


(c)                                  If the Lessee lodges a caveat permitted by
this clause, it must do everything necessary to permit registration of any
dealing if its rights under this lease are not diminished.


 


(d)           The Lessee must withdraw that caveat
on the earlier of registration and expiry or termination of this lease.


 


22.10                     If the premises are not separately metered
for air conditioning services or electricity, then if these services are made
available by the Landlord outside normal business hours, the Tenant must pay to
the Landlord its reasonable share of the cost of such services (on a pro rata
basis where necessary) within 7 days of request accompanied by reasonable
details.


 


22.11                     In the event of a person other than the
Lessor becoming entitled to receive the rent and other moneys payable by the
Lessee either by operation of law or otherwise, the Lessee agrees that such
person shall have the benefit of all covenants and agreements on the part of
the Lessee in this Lease and the Lessee at the cost of the Lessor will enter
into such covenant with such other person in that regard as the Lessor may
reasonably require.


 


23.                               LIMITATION OF LIABILITY


 


23.1                           The Lessor (referred to this clause as “the
Custodian”) enters into this Agreement as custodian and agent of Macquarie
Goodman Funds Management Limited A.C.N. 067 796 641, the Responsible Entity of
the Trust and in no other capacity.


 


23.2                           The parties other than the Custodian
acknowledge that the Obligations are incurred by the Custodian solely in its
capacity as custodian of the assets of the Trust and as agent of the
Responsible Entity and that the Custodian will cease to have any obligation
under this Agreement if the Custodian ceases for any reason to be Custodian of
the assets of the Trust.


 


23.3                           The Custodian will not be liable to pay or
satisfy any Obligations except to the extent to which it is indemnified by the
Responsible Entity or except out of the Assets against which it is entitled to
be indemnified in respect of any liability incurred by it.  The obligation of the Responsible Entity to
indemnify the Custodian and the right of the Custodian to be indemnified out of
the Assets are limited.


 


28





















 


23.4                           The parties other than the Custodian may
enforce their rights against the Custodian arising from non-performance of the
Obligations only to the extent of the Custodian indemnity as provided above in
paragraph 23.3.


 


23.5                           If any party other than the Custodian does
not recover all money owing to it arising from non-performance of the
Obligations it may not seek to recover the shortfall by:


 


(a)                                  bringing proceedings against the Custodian in
its personal capacity ; or


 


(b)                                 applying to have the Custodian wound up or
proving in the winding up of the Custodian.


 


23.6                           Except in the case of and to the extent of
fraud, negligence or breach of duty on the part of the Custodian under its
Custody Agreement with Responsible Entity, the parties other than the Custodian
waive their rights and release the Custodian from any personal liability
whatsoever, in respect of any loss or damage:


 


(a)                                  which they may suffer as a result of any:


 


(i)                                     breach by the Custodian of any of its
Obligation; or


 


(ii)                                  non performance by the Custodian of the
Obligations; and


 


(b)                                 which cannot be paid or satisfied from the
indemnity set out above in paragraph 23.3 in respect of any liability incurred
by it.


 


23.7                           The parties other than the Custodian
acknowledge that the whole of this Agreement is subject to this clause and
subject to paragraph 23.6 the Custodian shall in no circumstances be required
to satisfy any liability arising under, or for non performance or breach of any
Obligations under or in respect of, this Agreement or under or in respect of
any other document to which it is expressed to be a party out of any funds,
property or assets other than to the extent that this Agreement requires satisfaction
out of the assets of the Trust under the Custodian’s control and in its
possession as and when they are available to the Custodian to be applied in
exoneration for such liability.


 


23.8                           The parties acknowledge that the Responsible
Entity of the Trust is responsible under the Constitution for performing a
variety of obligations relating to the Trust, including under this
Agreement.  The parties agree that no act
or omission of the Custodian (including any related failure to satisfy any
Obligations) will constitute fraud, negligence or breach of duty of the
Custodian for the purposes of clause 23.6 to the extent to which the act of
omission was caused to or contributed to by any failure of the Responsible
Entity or any other person to fulfil its obligations relating to the Trust or
by any other act or omission of the Responsible Entity or any other person.


 


23.9                           No attorney, agent or other person appointed
in accordance with this Agreement has authority to act on behalf of the
Custodian in a way which exposes the Custodian to any


 


29


















 


personal
liability and no act or omission of such a person will be considered fraud,
negligence or breach of duty of the Custodian for the purposes of clause 23.6.


 


23.10       In this clause the “Obligations”
means all obligations and liabilities of whatever kind undertaken or incurred
by, or devolving upon, the Custodian under or in respect of this
Agreement.  “Assets”
includes all assets, property and rights real and personal of any value
whatsoever of the Trust, and “Responsible Entity”
means Macquarie Goodman Funds Management Limited or any replacement responsible
entity of the Trust from time to time.  “Trust” means the Macquarie Goodman Industrial Trust, “Custody Agreement” means the agreement made between
Macquarie Goodman Funds Management Limited (previously known as Goodman Hardie
Management Australia Limited) and Trust Company of Australia Limited dated 17
January 2000.  “Constitution”
means the Trust Deed dated 13 December 1989 as amended by the supplemental deed
made between Macquarie Goodman Funds Management Limited and Trust Company of
Australia Limited dated 14 January 2000 as amended by the Deed Poll by
Macquarie Goodman Funds Management Limited dated 21 April 2000.


 


24.          RESPONSIBLE ENTITY’S LIMITATION OF LIABILITY


 


24.1         The Responsible Entity incurs Obligations
under this agreement as responsible entity of the Trust and in no other
capacity.  An Obligation can be enforced
against the Responsible Entity only to the extent to which it is satisfied out of
property of the Trust out of which the Responsible Entity is actually
indemnified for the Obligation.  This
limitation of the Responsible Entity’s liability applies despite any other
provision of this agreement and extends to all Obligations.


 


24.2         The Parties other than the Responsible Entity
may not sue the Responsible Entity in any capacity other than as Responsible
Entity of the Trust, including seek the appointment of a Receiver (except in
relation to property of the Trust), a liquidator, and administrator or any
similar person to the Responsible Entity or prove in any liquidation,
administration or arrangement of or affecting the Responsible Entity (except in
relation to property of the Trust).


 


24.3         The provisions of this clause do not apply to
an Obligation to the extent that it is not satisfied because under the Trust
Deed establishing the Trust or by operation of law there is a reduction in the
extent of the Responsible Entity’s indemnification out of the assets of the
Trust, as a result of the Responsible Entity’s fraud, negligence or breach of
trust.  The Responsible Entity is not to
be regarded as being negligent or in breach of trust to the extent to which any
failure by the Responsible Entity to satisfy its obligations under this
agreement has been caused or contributed to by a failure by any person to
fulfill its obligations in relation to the Trust or any other act or omission
of another person.


 


24.4         No attorney, agent, receiver, or receiver and
manager appointed in accordance with this agreement has authority to act on
behalf of the Responsible Entity in any way which exposes the Responsible
Entity to any personal liability and no act or omission of any such person will
be considered fraud, negligence or breach of trust of the Responsible Entity
for


 


30





















 


the purpose of paragraph 3
of this clause.


 


24.5         The Responsible Entity is not obliged to do
or refrain from doing anything under this agreement (including incur any
liability) unless the Responsible Entity’s liability is limited in the same
manner as set out in paragraphs 1 to 3 of this clause.


 


24.6         For the purposes of this clause:


 


“Obligations” means all
obligations and liabilities of whatsoever kind, undertaken or incurred by, or
devolving upon the Responsible Entity under or in respect of this Lase or any
deed, agreement or other instrument collateral with this Lease or given or
entered into under this Lease and includes, without limitation, all liabilities
of the Responsible Entity in any way connected with any representation, warranty,
conduct, omission, agreement or transaction related to this Lease.  “Trust” means the Macquarie Goodman
Industrial Trust.


 


25.          DISPUTE RESOLUTION


 


(a)           A party must not commence legal proceedings
(other than for injunctive relief) unless it has complied with this clause.


 


(b)           If there is a dispute between the parties,
either party may give a notice to the other:


 


(i)            succinctly setting out the details of the
dispute;


 


(ii)           stating that it is a dispute notice given
under this clause.


 


(c)           Within 10 business days after the delivery of
the dispute notice, the recipient must deliver to the other party a notice in
response:


 


(i)            stating that it is a notice given under this
clause; and


 


(ii)           succinctly setting out any information it
believes is directly relevant to the dispute.


 


(d)           The parties must meet within 10 business days
after the date of delivery of the dispute notice to attempt to resolve the
dispute and must use its best endeavours and act in good faith.


 


	
  (e)

  	
  (i)

  	
  If the parties cannot
  solve the dispute within 20 business days of the date on which the dispute
  notice is delivered, the parties must each escalate the dispute to their
  respective chief executive officer.

  



 


(ii)           Each party must provide its chief executive
officer with a copy of:


 


(A)          the dispute notice;


 


31





















 


(B)           the notice in response; and


 


(C)           a succinct account of any subsequent meetings
or correspondence between the parties.


 


(f)            If the chief executive officer cannot solve
the dispute within 30 business days of the date on which the dispute notice is
delivered, then either party is not restricted in pursuing its rights under
this lease.


 


(g)           The parties must each
continue to perform their respective obligations under this lease pending resolution
of the dispute.


 


26.          GOODS & SERVICES TAX


 


(a)           In this clause:


 


GST Act means the Act entitled A New Tax System
(Goods and Services Tax) Act, 1999 as amended from time to time.


 


GST,
and Taxable Supply have
the meanings given to those terms in the GST Act.


 


Lessor’s
Outgoings, Building Outgoings, Complex Outgoings and Statutory Outgoings (collectively, in this clause Outgoings) excludes any GST forming part of the relevant
expenses when incurred by the Lessor for which the Lessor can claim an Input Tax
Credit because the expense was consideration for a Taxable Supply to the
Lessor.


 


Relevant
Agreement means this
Lease and any Deed, Agreement or other instrument in any way related to or
connected with it or the letting of the Premises by the Lessor to the Lessee
under this Lease.


 


(b)           All payments to be made by the Lessee under
any Relevant Agreement (including but not limited to Rent and contributions to
Outgoings) are calculated without regard to GST.  If any such payment is for a Taxable Supply
by the Lessor, the Lessee will pay to the Lessor concurrently with that payment
an additional amount equal to the GST imposed on the Taxable Supply in
question.


 


(c)           Where the Lessor has become subject to any
penalties or interest as a result of late payment of GST because of the failure
of the Lessee to comply with the terms of this clause, then the Lessee shall
pay to the Lessor an additional amount on demand equal to the amount of those
penalties and interest.


 


(d)           The Lessor must as soon as practicable give to
the Lessee tax invoices which set out the GST payable on any taxable supply


 


32





















 


27.          ADDITIONAL REINSTATEMENT AND MAKE
GOOD OBLIGATIONS


 


(a)           The parties acknowledge and agree that on or
about the time that this Lease was entered into, the Lessee acquired from
Dynsol Laboratory Pty Limited (“the previous tenant”) the fit out improvements
and alterations carried out by the previous tenant to the premises as referred
to in the Plan comprising an exhibit to this Lease.


 


(b)           In addition to the obligations of the Lessee
at the expiration or earlier termination of this Lease as to make good and
reinstatement of the premises, the Lessee also agrees with the Lessor to remove
the previous fit out acquired from the previous tenant to the intent that the
Lessee must restore and reinstate the premises to an open plan which will
include, but not be limited to, the removal of all laboratory and other plant,
equipment, fixtures, fittings, partitioning, panelling, air conditioning plant
and equipment and floor coverings.


 


(c)           In the event that the Lessee fails to comply
with this clause, then the provisions of Clause 12.5 (mutatis mutandis) shall
apply.


 


33





















 


SCHEDULE
1


 


A.            Rent Review - Current Market Rent


 


(a)           The annual rent payable pursuant to this
Lease (and any renewal) may be reviewed by the Lessor on each of the relevant
rent review dates referred to in the Reference Schedule and shall be such amount
as the Lessor considers is the current market rent of the Premises as at each
such review date (having regard to all matters then relevant to the
determination of such rent) and notified to the Lessee in writing.


 


(b)           Within a period of 28 days after receipt of
the said notice from the Lessor, the Lessee may by notice in writing to the
Lessor dispute that the amount set out in the said notice is the current market
rent of the Premises at such review date.


 


(c)           Unless such notice of dispute is served on
the Lessor within 28 days of service of the said notice by the Lessor (in which
regard time shall be of the essence), the amount stated in the said notice by
the Lessor shall become the rent reserved by this lease as and from the
relevant review date.


 


(d)           In the event of the Lessee serving a notice
of dispute in accordance with subclause (b) of this Clause and in the event
that the parties cannot agree on the current market rent within a further 21
days after service of the said notice of dispute, then and in such event the
current market rent shall be determined by two qualified valuers of the
Australian Property Institute (Inc) N.S.W. Division (or its succeeding body)
one appointed by the Lessor and one appointed by the Lessee.


 


(e)           The said appointments shall be made within a
further period of 21 days after the parties shall have failed to agree on the
current market rent (with one party appointing both valuers if the other fails
to appoint a valuer within the said period) and the said valuers shall jointly
determine the current market rent.


 


(f)            The two valuers shall deliver their
determination in writing within 35 days of their appointment or such extended
time as the parties shall agree upon.


 


(g)           If the two valuers cannot agree upon a
determination within the time prescribed but the difference in their respective
determinations is 5% or less of the total valuations, then the current market
rent shall be one half of the total of the two determinations.


 


(h)           If the said difference exceeds 5% of the
total valuations or if either or both valuers are unable to make a
determination in the time prescribed, they may mutually appoint a third valuer
so qualified to determine the current market rent within the range of the
disagreement and within 28 days of being so called upon to act and subject as
aforesaid such decision shall be final on both the Lessor and Lessee.


 


(i)            If the valuers do not mutually appoint a
third valuer within 14 days of expiry of the period granted to them to deliver
their valuation or if a third valuer shall be unwilling or unable to


 


34





















 


act, then
either party may request the President for the time being the Australian
Property Institute (Inc) N.S.W. Division (or its succeeding body) to nominate
the third valuer.


 


(j)            The amount determined
pursuant to this clause as being the current market rent of the Premises shall
be payable by the Lessee as from the relevant review date until the next review
date but if such a determination has not been made before the relevant review date,
the Lessee shall pay to the Lessor on account of the rent, amounts equal to the
monthly rental payable for the last complete month immediately preceding the
relevant review date until such a determination has been made after which the
Lessee shall within 14 days of demand pay to the Lessor the difference between
the monthly instalments so determined and the amount paid from the relevant
review date to the date of actual payment of any such adjustment.


 


(k)           Despite anything to the
contrary, no determination of the annual rent pursuant to this Clause shall
operate to reduce the rent payable below the annual rent payable by the Lessee
in the 12 months immediately prior to the relevant review date to the intent
that the rent from and including the relevant review date will be the higher
of:


 


(i)            the annual rent
immediately before the relevant review date; and


 


(ii)           the amount determined
pursuant to this Schedule 1A.


 


(l)            The expression “current
market rent” means the best annual rent that can be reasonably obtained for the
Premises and shall be determined having regard to the following criteria:


 


(i)            that the Premises are
available for leasing by a willing but not anxious Lessor to a willing but not
anxious Lessee for a term equal to the term of this lease and any option for
renewal;


 


(ii)           the terms and
conditions contained in this Lease including obligations as to outgoings as
well as the period until the next rent review takes place;


 


(iii)          that the Lessor’s and
Lessee’s lease covenants and obligations shall have been fully performed at the
relevant review date;


 


(iv)          having regard to the
rental values of comparable Premises;


 


(v)           without taking into
account the goodwill of the Lease or any improvements or fixtures erected or
installed at the Lessee’s expense (unless the Lessor has consented to them
remaining in the Premises on termination);


 


(vi)          without taking into
account any reduction in rent on account of any concession otherwise required
to secure a Lessee or any period of rent abatement;


 


(vii)         any use to which the
Premises may lawfully be put; and


 


35





















 


(viii)        in the event that the
Premises or the Building are destroyed assume that the Premises or the Building
have been reinstated in accordance with this Lease.


 


(m)          all valuers as at the
date of nomination must be full members of the said Institute and must have
practiced as valuers of comparable premises for not less than the past
consecutive 5 years in the metropolitan area of Sydney and who are registered
to practice as Valuers of the kind of Premises whose rent review is required
under this Lease.  All valuers shall act
as experts and not as arbitrators and subject to above the determination made
pursuant to this Clause shall be final and binding on the parties.


 


(n)           The
fees of the valuers and other costs of their determinations shall be borne:-


 


(i)            as to the fees of the
valuer appointed by the Lessee, by the Lessee;


 


(ii)           as to the fees of the
valuer appointed by the Lessor, by the Lessor;


 


(iii)          (iii)if both valuers are
appointed by one party the fees of one shall be borne by that party and the
fees of the other shall be borne by the other party as to which the firstnamed
party may choose; and


 


(iv)          as to the fees of the
third valuer, equally by the Lessor and the Lessee.


 


(o)           Each party may deliver
to the valuers written valuations and submissions prior to their determination
but may not make oral submissions.  At
the time of delivering such valuations or submissions that party shall deliver
copies to the other party who may deliver to the valuers and to the other party
written comments on the other parties’ written valuations and submissions.


 


(p)           The valuers shall take
into consideration any written submissions so made but shall not be fettered by
them and shall determine the current market rent in accordance with their own
judgment and opinion which they have formed having regard to the criteria
specified in this clause and shall provide written reasons for their
determinations;


 


(q)           In the event that the
Lessor fails for any reason to exercise its rights in accordance with
subparagraph (a) to have the annual rent reviewed, then such right shall be
exercised at any time prior to the next review date or the expiration of the
term of the lease (whichever first occurs) and the current market rent shall be
payable as and from the previous review date and any arrears payable by the
Lessee in respect of the period from the review date to the actual reassessment
date shall be paid within 21 days after determination of the reviewed annual
rent.  No succeeding review date or right
of reassessment of annual rent shall be postponed by reason of the review of
the annual rent pursuant to this subclause.


 


(r)            The Lessor and the
Lessee each agree to act reasonably and to co-operate in implementing and
conducting any rent review under this clause.


 


36





















 


B.            Rent
Review - Percentage Increase


 


The annual rent payable
pursuant to this Lease may be reviewed by the Lessor on each of the review dates
referred to in the Reference Schedule and shall be the annual rent payable
during the year immediately preceding the relevant review date increased by 3%.


 


37





















 


SCHEDULE 2


 


Outgoings


 


(a)           In addition to the
annual rent, the Lessee must in respect of each year or part of a year during
the term pay to or reimburse the Lessor as additional rent and without any
deduction whatsoever the Lessee’s proportion of the Lessor’s Outgoings relative
to such year or part (“the Lessee’s proportion”) in accordance with this
clause;


 


(b)           Subject to this
subclause, the Lessee’s proportion shall be the percentage referred to in the
Reference Schedule.  Despite the
foregoing:


 


(i)            if any one or more of
the Lessor’s Outgoings are now or at any time separately assessed or wholly
attributable to the Premises (whether by the Premises becoming a separate
allotment or otherwise) then the Lessee’s proportion will be increased to 100%
of such outgoing(s) in lieu of the percentage referred to in the Reference Schedule
but only in respect of the expenses which are separately assessed or payable in
respect of the Premises; and


 


(ii)           the Lessor may
determine (acting reasonably and honestly), that in calculating the Lessee’s proportion,
some items of the Lessor’s outgoings will be shared only between some occupants
or groups of occupants, because the other occupants and the premises leased by
them derive no benefit from the particular outgoing, in which case the Lessor
shall fairly apportion the Lessee’s proportion on an area basis; and


 


(iii)          the Lessor may at any
time from the service of a notice on the Lessee, alter the Lessee’s Proportion
so that it is the same proportion that the lettable area of the Premises bears
to the lettable area of the Building (expressed as a percentage).


 


(c)           Irrespective of the
period for which they are levied, assessed or charged, the Lessor’s Outgoings
shall be deemed to accrue from day to day and shall be apportioned in respect
of time accordingly.


 


(d)           “Lessor’s Outgoings”
means all outgoings, costs, expenses and charges (now or during the term)
properly assessed or assessable, charged or chargeable, paid or payable
(including costs incurred by the Lessor in undertaking activities which the
Lessee has failed to do under this lease) or otherwise incurred upon or in
respect of owning, managing, supervising, maintaining and keeping secure the
Building, the Land, and the Common Area and in particular but without limiting
the general nature of these words, includes:


 


(i)            all rates, taxes,
charges and assessments, duties, impositions at any time or from time to time
levied or charged or payable to any government, local government, semi
government or other authority and any amount in the nature of an indirect tax
including without limitation a goods and services tax or a value added tax
imposed on the cost of the goods or services supplied or incurred by the Lessor
in the control, management, maintenance and ownership of the Land and/or the
Building (but


 


38





















 


excluding Capital Gains Tax and Income Tax);


 


(ii)           all charges for, and
costs in relation to, the supply of water, sewerage and removal of all waste
and other garbage;


 


(iii)          all other rates, taxes
and assessments whether statutory or otherwise paid or payable by the Lessor
(and in the case of land tax, at the rate assessed against the Lessor;


 


(iv)          all premiums and
associated and incidental costs payable by the Lessor in respect of insurances
which the Lessor reasonably considers is appropriate to insure against in
respect of the building and the Lessor’s Property (including full replacement
and reinstatement, Public Risk, Workers’ Compensation, loss of rent and
outgoings and removal of debris);


 


(v)           the cost of all
services provided by the Lessor or by any Authority including electricity, gas,
water, oil, telephone, sewerage and garbage services;


 


(vi)          management, control
caretaking and security costs of the Building whether performed at the land or
elsewhere (including, salaries, leave entitlements, superannuation and other
employment overheads paid by the Lessor) equitably apportioned where any such
person is engaged in respect of the land on less than a full time basis;


 


(vii)         all costs for or in
connection with cleaning, maintenance and upkeep including painting, repairs
maintenance and landscaping;


 


(viii)        all costs associated with
maintaining and servicing the Lessor’s Property including all air conditioning
plant, sprinkler and fire protection equipment and other plant and services
including the cost of water treatment and legionella tests (except to the
extent they are maintained and serviced by the Lessee pursuant to this lease or
any other occupant);


 


(ix)           landscaping and the
cost of items usually supplied in washrooms and toilets;


 


(x)            existing or future
levies, charges and contributions imposed under strata, community or similar
legislation including administrative and sinking funds and special and ordinary
levies (except levies for structural repairs of the Building unless caused by
the Lessee);


 


(xi)           all parking space
levies payable to any authority in respect of any car parking spaces; and


 


(xii)          any other expenses
properly and reasonably incurred in the supervision, maintenance and/or keeping
secure the Building and/or the Land.


 


(e)           The following are
excluded from constituting Lessor’s Outgoings and the Lessee is not required to
contribute to:


 


39





















 


(i)            any liability or
expenditure paid by the Lessee under some other provision of this Lease;


 


(ii)           any liability or
expenditure payable by or recoverable from some other lessee or lessees of the
Building or from any other person; or


 


(iii)          any liability or
expenditure recoverable by the Lessor through insurance.


 


(f)            Before the date set
out in the Reference Schedule in each year of the term or such other date
selected by the Lessor and notified to the Lessee and from time to time, the
Lessor will furnish to the Lessee a statement giving reasonable details of the
Lessor’s Outgoings and indicating the amount of the Lessee’s proportion.


 


(g)           Except in the case of
manifest error notified by either party to the other within twenty-one (21)
days of the service of such statement on the Lessee, such statement shall be
conclusive evidence of the matters stated.


 


(h)           Subject to subclause
(1), within 14 days after service of such statement on the Lessee, the Lessee
must pay to the Lessor the Lessee’s proportion.


 


(i)            The liability of the
Lessee shall not be determined or otherwise prejudiced by the prior expiry of
the term of or other determination of this Lease.


 


(j)            Despite the above,
where any rate or tax assessment in respect of the Lessor’s Outgoings has not
issued for any rating or taxing period, the Lessor may notify the Lessee of the
reasonable estimate of the Lessee’s proportion of such rate or tax for the
period from the date of commencement of the rating or taxing period to the said
date of expiration or sooner determination of the Lease, and the Lessee will pay
such estimated proportion within 14 days of request.


 


Upon issue of
the relevant assessment any necessary adjustment between the estimated and
actual amount of the Lessee’s proportion shall be made and any refund to or
further payment by the Lessee shall be allowed or made by or to the Lessor
accordingly;


 


(k)           Upon receipt of any
assessment(s) in respect of part of the Lessor’s Outgoings, the Lessor may
calculate the Lessee’s Proportion in except of such Outgoings and forward a
request to the Lessee in writing for payment accompanied by a statement as to
the amount of the Lessee’s proportion together with reasonable details and the
Lessee must pay the amount within 14 days of being so requested.


 


(l)            Despite anything to
the contrary, from time to time the Lessor may notify the Lessee of the Lessor’s
reasonable estimate of the Lessee’s proportion for any period not exceeding one
(1) year in advance of the estimate and the Lessee must pay to the Lessor
during such period such estimated proportion by equal monthly instalments in
advance on the days fixed for payment of rent.


 


40





















 


(m)          When the Lessor’s
Outgoings at the end of the then current year have been calculated, any
necessary adjustment between the estimated and actual amount of the Lessee’s
proportion shall be made and any further payment owing by the Lessee shall be
made within 14 days of request and any overpayment by the Lessee will be
credited towards future outgoings payable by the Lessee or refunded to where
the lease has expired;


 


(n)           In addition to the
outgoings payable by the Lessee pursuant to this Schedule, the Lessee will also
pay all management fees and commission (based on the rental and outgoings
payable) to cover the Lessor’s reasonable costs of managing the Premises
(including fees paid by the Lessor to any managing agents).


 


(o)           The Lessor must upon
request and upon reasonable notice, permit the Lessee or its authorised
representatives to examine all records relating to the Outgoings so as to
enable the Lessee to verify any statement of the Outgoings.


 


(p)            (i)             If
there is any dispute between the parties relating to the meaning or operation
of this Schedule or the inclusion or exclusion of any item in the calculations,
or the proportion attributed to the Premises, the dispute shall be determined
in accordance with this clause.


 


(ii)           The
dispute shall be determined by a Chartered Accountant agreed on by the parties
or, failing agreement, nominated by the President for the time being of the New
South Wales Division of the Institute of Chartered Accountants in Australia (
or if it ceases to exist an organisation with similar objects) (called “nominee”)
at the request of either party.


 


(iii)          The
nominee shall act as an expert and not as an arbitrator and his decision shall
be final and binding on the parties.


 


(iv)          Each
party may make written submissions to the nominee within 28 days after the
nominee has agreed to act.


 


(v)           The
parties shall equally share the nominee’s costs.


 


(vi)          The
nominee shall provide the parties with written reasons for the determination.


 


41





















 


SCHEDULE 3


 


Rules and Regulations


 


1.             The Lessee must not
in any way obstruct or prevent other occupants from using the Common Area.


 


2.             The Lessee must not
in any way cover or obstruct any light skylights windows or other means of
illumination of the Premises or of the Building generally.


 


3.             The Lessee must not
throw any article or substance whatsoever from or out of the Premises or the Common
Area.


 


4.             The Lessee must keep
clean and free of rubbish such parts of the Common Area or any public footpath
as immediately adjoin the Premises.


 


5.             The Lessee must use
its best endeavours to protect and keep safe the Premises and its contents from
theft or robbery and shall keep all doors windows and other openings closed and
securely fastened when the Premises are not in use.


 


6.             The Lessee must not
permit the keys for locks on doors and other openings to or in the Premises to
come into possession or control of any person other than the Lessee.


 


7.             No rubbish or waste
must at any time be burned upon the Premises or the Common Area.


 


8.             All blinds shades
awnings windows ventilators and other similar fittings and fixtures installed
by the Lessee with the consent of the Lessor in or upon the Premises and
visible from outside the Premises must conform to the reasonable requirements
and standards of the Lessor as to design quality and appearance.


 


9.             The water closets
conveniences and other water apparatus used either exclusively by the Lessee or
in common with other Lessees must not be used for any purposes other than those
for which they were constructed and no sweepings rubbish rags ashes or other
unsuitable substances shall be thrown therein. 
Any damage resulting to such water closets conveniences and apparatus
from misuse by the Lessee shall be made good by the Lessee.


 


10.           Only such parts of the
Common Area as are designated for visitor parking or pick up and delivery of
goods may be used for such purposes.


 


11.           The Lessee and the
Lessee’s employees and agents may park any vehicle owned or operated by them in
the parking area (if any) allotted or set aside to them during business hours
and no such vehicle may be parked in or obstruct any other area of the Common Area.


 


12.           The Lessee and the
Lessee’s employees and agents must not obstruct grease oil repair clean or wash
motor vehicles within the Common Area.


 


42





















 


13.           The Lessee must make
good any damage caused to the car parking area used by the Lessee through its
neglect default or misconduct.


 


14.           The Premises must not
be or remain open for business at or during any time or times prohibited by law
for that class of Premises or for the business carried on by the Lessee.


 


15.           The Lessee and its
employees and agents must at all times abide by any speed limit set for the
driving of motor vehicles upon the Land.


 


16.           The Lessee must not use
the Common Area for any business or commercial purpose or the display or
advertisement of any goods or services or generally for any purpose other than
for which the Common Area was intended.


 


17.           No part of the Common
Area or any car parking area allocated or set aside for the Lessee may be used
for storage of pallets, containers or any other goods whatsoever.  Any such items must only be stored within the
confines of the Premises if so permitted by this lease and by the appropriate
authorities.


 


18.           No television or radio
mast or antenna shall be affixed to any part of the Premises and no musical
instrument, gramophone, radio, amplifier, television, audio visual or other
sound or picture producing equipment shall be used or operated in the Premises
without the Lessor’s consent unless such equipment is not audible or visible from
outside the Premises.


 


19.           No animal, fish,
reptiles or birds shall be kept in or about the Premises.


 


20.           All rubbish and waste
products are to be placed in the proper receptacles and regularly removed by
the Lessee.


 


21.           The Lessee must observe
the recommended maximum load weights throughout the Premises and the Building.


 


22.           On the date the Lessee
must vacate the Premises, the Lessee must give the Lessor all keys, access
cards and similar devices for the Premises and the Building.


 


23.           the Lessee shall cause
all exterior doors and windows in the premises to be securely locked and
fastened at all times when the premises are not occupied and authorises the
Lessor or any agent or employee of the Lessor to enter the premises whenever
necessary for the purpose of locking any such door or window left unlocked or
unfastened.


 


43





















 


REFERENCE
SCHEDULE


 


1.             Land (Clause 2)


 


The property known as 8-10 Rodborough Road, Frenchs Forest and being
the whole of the land in Folio Identifier 2/737438.


 


2.             Demised
Premises (Clause 2)


 


Unit 2, 10 Rodborough Road, Frenchs Forest having an area of
approximately 1,413.60 square meters as identified on the plan exhibited to the
parties and signed by them at the time of entering into this Lease.


 


3.             Rental
(Clause 3)


 


$233, 244.00 payable at the rate of $19,437.00 paid monthly in advance.


 


4A           Rent
Review Dates (Clause 3 and Schedule 1A) - Current Market Rent


 


during initial
term:


Not applicable


 


if option to
renew is exercised:


At the
commencement of the option term and the fifth year of the option term.


 


4B           Rent
Review Dates (Clause 3 and Schedule 1B) - 3%


 


during initial
term:


On each and
every anniversary of the commencement date.


 


if option to
renew is exercised:


On each and
every anniversary of the commencement date, except at the commencement of the
fifth year.


 


5.             Description
of Lessee’s Use of Premises (Clause 6.1)


 


Commercial
offices, and/or warehousing and facility for research and development, and/or
manufacture and supply of biomedical and medical devices.


 


44





















 


6.             Redecoration
Dates (Clause 7.4)


 


during initial
term:


Within three (3) months prior to the expiration of lease


 


if option to
renew is exercised:


Within three (3) months prior to expiration of option term.


 


7.             Public
Liability Insurance (Clause 9.1)


 


$20,000,000


 


8.             Car
Parking (Clause 17):


 


30 motor vehicles


 


9.             Bank
Guarantee (Clause 18):


 


6 months


 


10.           Option
Term (Clause 19)


 


1 option term for a period of 5 years.


 


11.           Lessee’s
Proportion of Lessor’s Outgoings (Schedule 2)


 


16.59 %


 


12.           Date
for Calculation of Lessee’s Proportion of Lessor’s Outgoings (Schedule 2)


 


30th June in each year of the term.


 


45





















 


	
  DATED
  the 22 day of June 2001

  	
   

  
	
   

  	
   

  
	
  EXECUTED
  on behalf of TRUST

  	
   

  
	
  COMPANY
  OF AUSTRALIA LIMITED

  	
   

  
	
  pursuant to
  Power of Attorney Registered

  	
   

  
	
  No. 670 Book
  4279 in the presence of:

  	
   

  
	
   

  	
   

  
	
  /s/ Evie
  Rozali

  	
   

  	
  /s/ Simon Hindson

  	
   

  
	
  Witness

  	
  Attorney

  
	
   

  	
   

  
	
  EVIE ROZALI

  	
   

  	
  SIMON HINDSON

  	
   

  
	
  Print name

  	
  Print name

  
	
   

  	
  [ILLEGIBLE]

  	
   

  
	
   

  	
  [ILLEGIBLE]

  	
   

  
	
   

  	
   

  
	
  Executed
  By AORTECH

  	
  )

  	
   

  
	
  BIOMATERIALS
  PTY LIMITED

  	
  )

  	
   

  
	
  in the
  presence of

  	
  )

  	
   

  
	
   

  	
   

  
	
  /s/ Michael

  	
   

  	
  /s/ Gai
  Strouthos

  	
   

  
	
  Signature

  	
  Signature

  
	
   

  	
   

  
	
  MICHAEL

  	
   

  	
  GAI
  STROUTHOS

  	
   

  
	
  Print name

  	
  Print name

  
	
   

  	
   

  
	
  DIRECTOR

  	
   

  	
  COMPANY
  SECRETARY

  	
   

  
	
  Office held

  	
  Office held

  
						



 


46





















 




	
  Form:

  	
  077L

  	
  TRANSFER OF

  	
  Leave this
  space clear. Affix additional pages 

  
	
  Licence:

  	
  01-08-072

  	
  LEASE

  	
  To the left-hand
  corner.

  
	
  Licencee:

  	
  Midware
  Systems

  	
   

  	
   

  
	
  Piper Algerman

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  New South Wales

  	
   

  
	
  Real Property Act 1900

  
	
  PRIVACY NOTE: this information is legally required and will become
  part of the public record

  






 


	
  STAMP DUTY

  	
  Office of
  State Revenue use only

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  



 


	
  (A) LEASE

  	
  8154137

  	
   

  



 


	
  (B) TORRENS
  TITLE

  	
  Folio
  Identifier 2/737438

  	
   

  
	
   

  	
   

  	
   

  
	
  (C) LODGED
  BY

  	
  Delivery Box

  	
  Name,
  Address or DX and Telephone

  	
  Code

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  PIPER
  ALDERIAN, Solicitors

  
	
   

  	
   

  	
  DX 10215
  SYDNEY STOCK EXCHANGE TEL: (03) 9253 9999

  
	
   

  	
   

  
	
   

  	
   

  	
  Reference
  (optional): PRA548/2

  	
  TL

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  (D) TRANSFEROR

  	
  AORTECH BIOMATERIALS
  PTY LIMITED ACN 079 265 286

  	
   

  



 


	
  (E)

  	
  The transferor
  acknowledge receipt of the consideration of $1.00

  and transfers to the transferee all the transferor’s estate and interest in
  the lessee specified above

  	
   

  
	
   

  	
   

  	
   

  
	
  (F)

  	
  Encumbrances
  (if applicable):

  	
   

  
	
   

  	
   

  	
   

  
	
  (G)
  TRANSFEREE

  	
   

  	
   

  
	
   

  	
  PHARMAXIS
  PTY LIMITED ACN 082 811 630

  	
   

  
	
   

  	
   

  	
   

  
	
  (H)

  	
  TENANCY:

  	
   

  
	
   

  	
   

  	
   

  
	
        DATE

  	
  15 October
  2002

  	
   

  



 


	
  (I)

  	
  Certificate correct
  for the purposes of the Real Property Act 1900 and executed on behalf of the
  corporation named below by the authorised person(s) whose signature(s)
  appear(s) below pursuant to the authority specified.

  	
   

  	
   

  
	
   

  	
  Corporation:  AORTECH BIOMATERIALS PTY LIMITED ACN 079
  265 286

  	
   

  	
   

  
	
   

  	
  Authority:
  Section 127 of the Corporations Act 2001

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Signature of
  authorised person:

  	
  /s/ Gai
  Strouthos

  	
   

  	
  Signature of
  authorised person:

  	
  /s/ Ian
  Griffiths

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name of
  authorised person:

  	
  GAI
  STROUTHOS

  	
   

  	
  Name of
  authorised person:

  	
  IAN
  GRIFFITHS

  
	
   

  	
  Office held:

  	
  COMPANY
  SECRETARY

  	
   

  	
  Office held:

  	
  BUSINESS
  UNIT MANAGER

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Certified correct
  for the purposes of the Real Property Act 1900 and executed on behalf of the
  corporation named below by the authorised person(s) whose signature(s)
  appear(s) below pursuant to the authority specified.

  	
   

  	
   

  
	
   

  	
  Corporation:
  PHARMAXIS PTY LIMITED ACN 082 811 630

  	
   

  	
   

  
	
   

  	
  Authority:
  Section 127 of the Corporations Act 2001

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Signature of
  authorised person:

  	
  /s/ Alan D.
  Robertson

  	
   

  	
  Signature of
  authorised person:

  	
  /s/ Denis
  Hanley

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name of
  authorised person:

  	
  A. D. ROBERTSON

  	
   

  	
  Name of
  authorised person:

  	
  DENIS HANLEY

  
	
   

  	
  Office held:

  	
  DIRECTOR

  	
   

  	
  Office held:

  	
  DIRECTOR

  



 





















 


DEED OF ASSIGNMENT


 


	
   

  	
   

  
	
   

  	
   

  
	
  THIS
  DEED OF ASSIGNMENT is made the 15th day of October 2002

  	
   

  
	
   

  	
   

  
	
   

  	
   

  



 


BETWEEN


 


AORTECH
BIOMATERIALS PTY LIMITED, A.C.N. 079 265 286 of Unit
2, 8–10 Rodborough Road, Frenchs Forest, New South Wales (the “Assignor”)


 


AND


 


PHARMAXIS
PTY LIMITED, A.C.N. 082 811 630 of 60 Marcus Clarke
Street, Canberra, Australian Capital Territory (the “Assignee”)


 


AND


 


TRUST
COMPANY OF AUSTRALIA LIMITED, A.C.N. 004 027 749 of 80
- 84 New South Head Road, Edgecliff, New South Wales (the “Lessor”)


 


SINCE:


 


A.            The Assignor is
entitled to a leasehold interest in the Premises subject to the terms and
conditions set out in the Lease for a term of five years, which expires on 21
June 2006.


 


B.            The Assignor has
agreed to assign the Lease to the Assignee for whole of the balance of the term
of the Lease subject to and upon the terms set out in this deed.


 


C.            This Deed is entered
into to assign the Lease to the Assignee and to record the Lessor’s consent to
such assignment.


 


The
Parties Agree:


 


1.             Interpretation


 


1.1          Definitions


 


In this Deed,
unless the context otherwise requires:


 


“Effective
Date” means 1 November 2002 or such other date as the parties may agree;


 


“Lease” means
the lease entered into between the Assignor as lessee and the Lessor dated 22
June 2001 in respect of the Premises, being registered lease number 8154137;


 





















 


“Lessee’s
Covenants” means all or any of the covenants and agreements contained or
implied in the Lease to be observed and performed by the lessee;


 


“Lessor’s
Covenants” means all or any of the covenants and agreements contained or
implied in the Lease to be observed and performed by the lessor;


 


“Premises”
means the premises located at Unit 2, 10 Rodborough Road, Frenchs Forest, New
South Wales;


 


“Sublease”
means the sublease entered into between the Assignor as the sublessor and the
Sublessee in relation to level 3 of the Premises.


 


“Sublessee”
means Sunshine Heart Company Pty Limited ACN 090 552 300 of level 3, Unit 2, 8 -
10 Rodborough Road, Frenchs Forest, NSW.


 


1.2          Construction


 


In this Deed,
unless the context otherwise requires:


 


(a)           a
reference to a party to this Deed includes a reference to that party’s agents,
successors and permitted assigns;


 


(b)           words
in the singular number include the plural number and vice versa;


 


(c)           words
importing a gender include all other genders;


 


(d)           a reference to currency
or the symbol “$” is a reference to Australian currency or Australian dollars,
unless otherwise expressly provided; and


 


(e)           a
reference to a person includes corporations.


 


2.             Assignment


 


In
consideration of the covenants by the Assignee contained in or implied by this
Deed, the Assignor, with the consent of the Lessor, as evidenced by Lessor’s
execution of this Deed, hereby assigns the rights, interests and obligations of
the Assignor in the Lease to the Assignee with effect from and including the
Effective Date for the unexpired residue of the term of the Lease with the
right to exercise any right of renewal for the further term contained in the
Lease upon the terms and conditions hereinafter set out.


 


3.             Assignor’s
Covenants and Indemnity


 


3.1.          The Assignor hereby
represents and warrants to the Assignee as at the Effective Date that, other
than as disclosed to the Assignee in writing:-


 


3.1.1        The Assignor has capacity
and is entitled to enter into this Deed and to assign its rights, interests and
obligations under the Lease to the Assignee in accordance with this Deed;


 


3.1.2        The Lease is valid and
subsisting and that there has not been any failure to pay rent or to observe
and perform the Lessee’s Covenants;


 


2





















 


3.1.3        There are no actions,
claims, proceedings or investigations pending or threatened against the
Assignor in relation to the Lease or by, against or before any other person
which may have a material effect upon the Lease.


 


3.2           The
Assignor shall deliver to the Assignee on or before the Effective Date:


 


3.2.1        a
duly executed Transfer of the Lease in a registrable form; and


 


3.2.2        a notice addressed to the
Sublessee directing the Sublessee to pay any rent and other amounts due under
the Sublease to the Assignee in lieu of the Assignor.


 


3.4           The Assignor hereby
indemnifies and agrees to keep the Assignee indemnified against all actions,
claims, proceedings or investigations resulting from any failure to pay rent or
to observe or perform the Lessee’s Covenants under the Lease in respect of the
period before and excluding the Effective Date.


 


4.             Assignee’s
Covenants and Indemnity


 


4.1           The Assignee
acknowledges that all rights, interests and obligations of the Assignor to the
Assignee under the Lease will cease on the Effective Date.


 


4.2           The Assignee hereby
represents and warrants to the Assignor and as a separate covenant with the
Lessor as from the Effective Date that:-


 


4.2.1        It
has capacity and corporate power to enter into and perform its obligations
under this Deed;


 


4.2.2        It has capacity and all
resources necessary to perform the Lessee’s Covenants under the Lease including
without limitation the obligation to pay rent;


 


4.2.3        It will observe and
perform all Lessee’s Covenants diligently and efficiently in all respects as if
the Assignee were the lessee named in the Lease with effect from and including
the Effective Date;


 


4.2.4        It will pay all costs and expenses
of and incidental to the instructions for the preparation, execution, stamping
and approval by the Lessor of this Deed and all duty payable under the Duties
Act, 1997 in respect of this Deed.


 


4.3           The Assignee
acknowledges that the Lease is subject to the Sublease and that the assignment
of the Lease is not conditional upon the Sublease or the continuation thereof.


 


4.4           The Assignee
acknowledges that the Assignee has not entered into this Deed as a result of any
representation, oral or written by the Assignor or anyone on the Assignor’s
behalf other than as set forth in this Deed and that the Assignee has made all
such investigations and inquiries as the Assignee deems appropriate.


 


4.5           The Assignee hereby indemnifies
and agrees to keep the Assignor indemnified


 


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against all actions, claims,
proceedings or investigations resulting from any failure to pay rent or to
observe or perform the Lessee’s Covenants under the Lease in respect of the
period after the Effective Date.


 


5.             Lessor’s Covenants


 


5.1           The Lessor hereby acknowledges and consents
to the assignment and transfer of the Lease and covenants, terms, conditions
and provisions of this Deed.


 


5.2           To the best of its knowledge, information and
belief after making due enquiries, the Lessor represents and agrees that:


 


5.2.1        the Assignor has complied with all of the
Lessee’s Covenants under the Lease in respect of the period up to the Effective
Date;


 


5.2.2        there has not been any failure to pay rent or
any other monies payable under the Lease to the Lessor in respect of the period
up to the Effective Date;


 


5.2.3        It will observe and perform all Lessor’s
Covenants in all respects.


 


6.             Bank Guarantee


 


6.1           Subject to clause 6.2, the Lessor shall
return to the Assignor on the Effective Date the Bank guarantee provided by the
Assignor to the Lessor in accordance with clause 18 of the Lease.


 


6.2           The Assignee shall provide to the Lessor on
or before the Effective Date a Bank guarantee in accordance with clause 18 of
the Lease for the sum of $169,462.13


 


7.             Release of Assignor


 


7.1           The Lessor acknowledges and agrees that the
Assignor is released from its obligations pursuant to the Lease with effect
from and including the Effective Date.


 


8.             Limitation of Liability


 


8.1           The Parties agree and declare that the
provisions of clause 23 (Custodian’s Limitation of Liability) and clause 24
(Responsible Entity’s Limitation of Liability) apply in respect of this Deed as
if fully set forth in this Deed.


 


9.             Licence


 


9.1           In confirmation of the provisions of clause
17 of the Lease, the Lessor hereby grants to the Assignee and its employees and
agents an exclusive license to park the number of motor vehicles referred to in
the Reference Schedule of the Lease (currently 30) in the location as directed
from time to time by the Lessor and in this respect the terms of clause 17 of
the Lease apply to the Assignee mutatis mutandis.


 


4





















 


10.          General


 


10.1        Counterparts


 


This Deed may be executed in
any number of counterparts and all such counterparts taken together will be
deemed to constitute one instrument.


 


10.2        Costs of Preparation of this Deed


 


The Assignee will pay the
Lessor’s costs, fees and expenses in relation to this deed.


 


10.3        Stamp Duty


 


The Assignee will pay all stamp duty on this Deed, if any.


 


10.4        Further Assurances and Execution of Further Documents


 


Each party shall execute
such further documents and assurances and take such further action as may be
required to effect the intent of this Deed in accordance with any applicable
law within the Commonwealth of Australia, its States and Territories.  This obligation will survive Completion.


 


10.5        Waiver


 


No failure, delay,
relaxation or indulgence on the part of any party exercising any power or right
conferred upon such party pursuant to the terms of this Deed shall operate as a
waiver of such power or right, nor shall any single or partial exercise of any
such power or right preclude any other future exercise thereof, or the exercise
of any other power or right under this Deed.


 


10.6        Variations


 


Any modification,
alteration, change or variation of any term or condition of this Deed shall
only be made in writing executed by all parties.


 


10.7        Severability


 


The provisions of this Deed
shall be deemed to be severable and any invalidity of any provision of this
Deed shall not affect the validity of the remaining provisions of the Deed.


 


10.8        Assignment


 


A party shall not assign its
rights, powers or remedies under this Deed without the prior written consent of
the other parties.


 


10.9        Notices


 


10.9.1              A notice is sufficiently given for the
purposes of this Deed if:


 


(a)           the notice is signed by the party giving the
notice or on behalf of that party by a properly authorized person;


 


(b)           it is delivered or posted by registered post
to the address of the receiving party shown above or, if the receiving party
has given written notice of a change of address, to the new address so
notified; or


 


(c)           It is successfully sent by facsimile
transmission to the receiving party’s facsimile machine.


 


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10.9.2      A notice that is posted is
deemed to be received by the party concerned on the date that notice would in
the ordinary course of post have reached the relevant address.


 


10.9.3      A notice that is sent by
facsimile transmission is deemed to have been received at the time it was so
transmitted unless that time is outside normal business hours at the receiving
place, in which case it is deemed to have been received at the next
commencement of business hours.


 


10.10      Non-Merger


 


The provisions of this Deed shall not merge on or by virtue of
Completion.


 


10.11      Right
to Recover Monies


 


The right of
any party to recover any monies owed to it by any other shall not be
extinguished by the completion or termination of this Deed.


 


10.12      Entire
Agreement


 


This Deed
supersedes all prior agreements and understandings between the parties in
connection with its subject matter and constitutes the complete understanding
of the parties and no waiver or modification of any clauses or subclauses is
valid unless in writing and signed on behalf of the parties.


 


10.13      Governing
Law


 


The law
applicable to this Deed is the law in force in New South Wales.


 


10.14      Time


 


Unless
provided for in any other manner, the time for a party to comply with an
obligation is of the essence.


 


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  Executed as a Deed

  	
   

  
	
   

  	
   

  
	
  Signed sealed and delivered

  	
  )

  
	
  on behalf of AORTECH BIOMATERIALS PTY

  	
  )

  
	
  LIMITED ABN 079 265 286

  	
  )

  
	
  by:

  	
  )

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/ Ian Griffiths

  	
   

  	
  /s/ Gai Strouthos

  	
   

  
	
  (Signature of Director/Secretary)

  	
   

  	
  (Signature of Director/Secretary)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  IAN GRIFFITHS

  	
   

  	
  GAI STROUTHOS

  	
   

  
	
  (Name of Director/Secretary)

  	
   

  	
  (Name of Director/Secretary)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Signed sealed and delivered

  	
   

  	
  )

  
	
  on behalf of PHARMAXIS PTY LIMITED

  	
   

  	
  )

  
	
  ACN 082 811 630

  	
   

  	
  )

  
	
  by:

  	
   

  	
  )

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Alan D. Robertson

  	
   

  	
  /s/ Denis Hanley

  	
   

  
	
  (Signature of Director/Secretary)

  	
   

  	
  (Signature of Director/Secretary)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  A. D. ROBERTSON

  	
   

  	
  DENIS HANLEY

  	
   

  
	
  (Name of Director/Secretary)

  	
   

  	
  (Name of Director/Secretary)

  
	
   

  	
   

  	
   

  
	
  EXECUTED on behalf of TRUST
  COMPANY 

  	
   

  	
  )

  
	
  OF AUSTRALIA LIMITED pursuant to Power 

  	
   

  	
  )

  
	
  of Attorney Registered No. 670 Book 4270 in 

  	
   

  	
  )

  
	
  the presence of:

  	
   

  	
  )

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Evie Rozali

  	
   

  	
  /s/ Simon Hindson

  	
   

  
	
  Signature of Witness

  	
   

  	
  Signature of Attorney

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  EVIE ROZALI

  	
   

  	
  SIMON HINDSON

  	
   

  
	
  Print name

  	
   

  	
  Print name

  



 


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