EX-10.39 DEED OF CONSENT TO ASSIGNMENT OF SUBLEASE

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Exhibit 10.39

ZCM Asia Holdings Pty Limited

Zurich Capital Markets Asia Pty Limited

Heartware Limited

Royal Bank of Canada

Deed of Consent to
Assignment of Sublease

Premises: Suite 4, Level 46, 2 Park Street Sydney

Matthew Seymour Property Lawyer©

Contents


Commercial details			4


Background			6


1	Defined terms & interpretation		7

	1.1	Defined terms	7
	1.2	Interpretation	7

2	Precondition		8

	2.1	Headlessor consent	8
	2.2	Seek consent	8
	2.3	Deed of Consent to Sublease	8
	2.4	Headlessor refusal	8

3	Assignment Date		8


4	Consent		8


5	RBC’s obligations		8


6	Release		9


7	Indemnity		9

	7.1	From the Assignment Date	9
	7.2	Prior to the Assignment Date	9

8	Rent and adjustments		9

	8.1	Passing rent	9
	8.2	Periodic payments	9
	8.3	Reimbursements	9
	8.4	Shortfall	10

9	Bank Guarantee		10

	9.1	Replacement Bank Guarantee	10
	9.2	Sublease applies	10
	9.3	Return original Bank Guarantee	10

10	Originals and registration		10

	10.1	Delivery	10
	10.2	Stamping and registration	11
	10.3	Original Sublease	11

11	Access date		11

	11.1	Vacant possession	11
	11.2	Late delivery	11
	11.3	Licence terms	11

12	Exercise of option		12

	12.1	Option	12
	12.2	Giving effect to option	12




Matthew Seymour Property Lawyer©		ii


Contents


13	Makegood		12

	13.1	Headlessor’s consent	12
	13.2	Handover condition	12
	13.3	Contribution	12

14	General		12

	14.1	Costs	12
	14.2	GST	13
	14.3	Amendment	13
	14.4	Counterparts	13
	14.5	Entire understanding	13
	14.6	Further assurance	13

Signing page			14

Annexure A – Fixtures and furnishings			16

Annexure B – Variation of Sublease			17




Matthew Seymour Property Lawyer©		iii

Commercial details


Deed dated		2007


Parties

Sublessor	ZCM Asia Holdings Pty Limited ACN 093 336 700

Notice details	Contact:	The Company Secretary,
		Zurich Financial Services Australia Ltd
	Address:	5 Blue St, North Sydney
	Fax:	02 9995 1808

Assignor	Heartware Limited ACN 111 970 257

Notice details	Contact:	David Mclntyre
	Address:	3351 Executive Way, Miramar, Florida USA 33025
	Fax:	+1 954 874 1156
	Email:	dmcintyre@heartware.com

Assignee	Royal Bank of Canada ARBN 076 940 880

Notice details	Contact:	Alan Downie
	Address:	c/ - RBC Capital Markets
		Level 46, 2 Park Street
		Sydney NSW 2000
	Fax:	(02) 9033 3156
	Email:	alan.downie@rbccm.com




Matthew Seymour Property Lawyer©		4

Commercial details


Items

Item 1		Premises

		Suite 4, Level 46, 2 Park Street Sydney and the parking
		spaces referred to in the Sublease

Item 2		Headlease
(clause 1.1)
		Lease registered 7655894

Item 3		Sublease
(clause 1.1)
		Sublease registered AB545729 including a sublicence of
		2 permanent car parking spaces

Item 4		Assignment Date
(clause 1.1)
		1 July 2007

Item 5		Passing rent
(clause 8)
		Rent (Item 7 of the Sublease):
		$161,769.50 per annum plus GST
		Parking fee (Item 13 of the Sublease):
		$840 per space per month plus GST

Item 6		Bank Guarantee amount
(clause 9)
		$106,399





Matthew Seymour Property Lawyer©		5

Background


A		The Headlessor is the owner of the building known as 2 Park Sydney (Building) .

B		The Headlessor leases Levels 46 and 47 of the Building to Zurich Capital Markets Australia Limited ACN 095 545 887 under the Headlease.

C		Zurich Capital Markets Australia Limited delisted and changed its name to Zurich Capital Markets Asia Pty Limited.

D		Zurich Capital Markets Asia Pty Limited sublet the Premises to Heartware.

E		Zurich Capital Markets Asia Pty Limited assigned the Headlease to ZCM Asia Holdings Pty Limited ACN 093 336 700 effective 1 June 2007.

F		Heartware wants to assign the Sublease to RBC but requires the Sublessor’s consent to do so.

G		The Sublessor consents to the assignment of the Sublease on the terms of this deed.

H		As the assignment of the Headlease referred to in recital E has not yet been registered, Zurich Capital Markets Asia Pty Limited (as previous sublessor) is also a party to this deed for the purpose of confirming its consent to the assignment of the Sublease.





Matthew Seymour Property Lawyer©		6

Consent terms

1		Defined terms & interpretation

1.1		Defined terms

		The following terms and expressions have a specific meaning in this deed.

		Assignment Date means the date in Item 4.

		Commercial details means the part of this deed described as the Commercial details at the front of this deed.

		Headlease means the lease described in Item 2.

		Headlessor means the lessor under the Headlease.

		Heartware means the existing tenant of the Premises under the Sublease, being the party identified as the ‘Assignor’ in the Commercial details.

		Item means an item in the Commercial details.

		Premises means the premises described in Item 1.

		RBC means the party identified as the ‘Assignee’ in the Commercial details.

		Sublessor means the lessee under the Headlease, being the party identified as ‘Sublessor’ in the Commercial details.

		Sublease means the sublease described in Item 3.

		Transfer means a form required by the Department of Lands – Land & Property Information to register the transfer of Sublease from Heartware to RBC.

		Variation of Sublease means the variation of the Sublease in the form set out in Annexure B.

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

	(b)		a gendered noun or pronoun includes all genders;

	(c)		a reference to:

	(i)		this deed includes its schedules and annexures;

	(ii)		a party or person includes that person’s executors, administrators, successors and permitted assigns; and

	(iii)		an institute, association or council includes a reference to any replacement institute, association or council;

	(d)		the use of the verb to ‘include’ (in any conjugation or participle) or the expressions ‘such as’ or ‘for example where used in this deed, are always intended to refer to a non-exclusive set as if the words ‘without limitation’ were included after their every use; and

	(e)		headings are for convenience only and do not form part of this deed or affect its interpretation.


Matthew Seymour Property Lawyer©		7

Consent terms

2		Precondition

2.1		Headlessor consent

		The assignment in clause 3 and the Sublessor’s consent in clause 4 is subject to and condit