EXHIBIT 10.6
FORM OF LEASE
PRESENT when the Common Seal of
________________________
LOGITECH IRELAND LIMITED Director
was affixed hereto:- ________________________
Director
PRESENT when the Common Seal
of OGDEN ATLANTIC DESIGN (EUROPE) LIMITED ________________________
was affixed hereto:- Director
________________________
Director
Dated _____ day of ______ 1995
LOGITECH IRELAND LIMITED
TO
OGDEN ATLANTIC DESIGN (EUROPE) LIMITED
LEASE
XXXXXXXX XXXXXX XXXXXXXX
Solicitors
0 Xxxxxxxxxx Xxxx
Xxxxxx 0
LAND REGISTRY
COUNTY Cork FOLIO 45419F
THIS LEASE made the 9th day of May One Thousand Nine Hundred Ninety Five BETWEEN
Logitech Ireland Limited having its registered office at Cork Technology Park,
Model Farm Road, Cork (hereinafter called "the Landlord") of the One Part and
Ogden Atlantic Design (Europe) Limited having its registered office at 0
Xxxxxxxxxxxxx Xxxxx Custom House Dock, Dublin 1 (hereinafter called "the
Tenant") of the Other Part.
WITNESSETH as follows:
A In this Lease unless the context otherwise requires the following
expressions have the meaning assigned to them respectively that is to say:
"The Landlord" shall include the owner from time to time of the immediate
reversion of the premises hereby demised expectant on the expiration or
earlier determination of the term hereby granted.
"The Tenant" shall include the Tenant's successors in title and permitted
assigns.
"The demised premises" means the premises hereby demised by the Landlord to
the Tenant
(as more particularly described in the first schedule hereto) and where the
context so admits include all easements rights and privileges appurtenant
thereto and all buildings thereon to include the fixtures fittings and
rights hereby demised and the roof and exterior walls and a moiety divided
medially of all party walls.
"Insured risks" means all or any loss or damage or prospective loss or
damage by fire waters flooding storm tempest lighting explosion earthquake
impact aircraft and articles dropped therefrom and such further risks or
perils to or in connection with the demised premises and the fixtures and
fittings thereof and such fees expenses charges and monies of and
incidental to the rebuilding reinstatement or loss (whether total or
otherwise) of the demised premises or any part thereof as the Landlord may
from time to time reasonably deem it desirable to insure against including
(but not by way of exception):-
(i) Loss of rent from time to time payable out of the demised premises
for three years or such longer period as the Landlord may from time to time
reasonably deem to be necessary
(ii) all expenditure or anticipated expenditure in the demolition and
clearance of the demised premises and Value Added Tax thereon (if any)
(iii) all stamp duties, Value Added Tax and other taxes or duties exigible
on any Building or like Contract as may be entered into relative to the
reconstruction reinstatement or repair of the demised premises resulting
from the destruction loss or damage thereof or thereto from any of the
risks or perils aforesaid;
(iv) a sum equivalent to 15% of the full replacement and reinstatement
value of the demised premises in respect of Architects' Quantity Surveyor's
Engineers' and other professional and Consultancy fees (and Value Added Tax
thereon)
(v) Property owners and other liability of the Landlord arising out of
or in relation to the demised premises.
"The Town Planning Acts" shall be deemed to include the Local Government
(Planning and Development) Acts 1963 to 1990 and any Act or Acts for the
time being in force amending extending or replacing the same and any Order
Regulations or Directions issued under or by virtue of the said Acts or any
Act for the time being in force amending or replacing the same and includes
all Building Bye Laws Regulations (or any Act for the time being in force
amending extending or replacing the same)
Words importing the masculine gender only include the feminine gender.
Words importing the singular number only include the plural number and vice
versa and where there are two or more persons included in the expressions
the Landlord or the Tenant covenants expressed to be made by "The Landlord"
or "The Tenant" shall be deemed to be made by such persons jointly and
severally.
Any notice required or authorised to be served by this Lease shall be
sufficiently served in manner provided by Section 67 of the Conveyancing
Act of 1881.
All notices, requests, demands and other communications under this Lease
shall be in writing and shall be deemed to have been given if hand
delivered or mailed certified mail, return receipt requested, or by
overnight courier service: -
(a) If to the Tenant OGDEN ATLANTIC (EUROPE) LIMITED
0000 Xxxxxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxx X Xxxxxxxxx, President.
(b) With a copy to XXXXX SERVICES CO
Two Pennsylvania Plaza
New York, New York 10121
Attention: General Counsel
(c) If to the Landlord LOGITECH INC
0000 Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention:
(d) With a copy to Manager - Ireland
Logitech Ireland Services Limited
Cork Technology Park
Model Farm Road
Cork
All notices delivered by hand shall be effective upon delivery and all
notices mailed certified mail, return receipt requested, or by overnight
courier service shall be effective when received, as indicated on the
return receipt.
The section headings shall not affect the construction of these presents.
B All rights of entry exercisable hereunder by the Landlord shall extend to
and include the architects engineers surveyors servants contractors agents
licensees and employees (collectively the Landlord's appointees) of the
Landlord, save in the case of emergency such rights of entry shall only be
exercised after giving the Tenant 48 hours notice in writing and the
Landlord and/or the Landlord's appointees must be escorted by a nominee of
the Tenant (if practical) when exercising all rights of entry.
C In consideration of the rent and the other payments and the covenants on
the part of the Tenant hereinafter reserved and contained the Landlord
hereby demises unto the Tenant ALL THAT the demised premises EXCEPTING AND
RESERVING as specified in the Second Schedule hereto together with the
rights specified in the Third Schedule hereto and subject also to a lease
granted in favour of E.S.B. in respect of the sub-station on the demised
premises shown coloured blue on Plan 1 annexed hereto including a right of
way thereto coloured green on the said Plan TO HOLD the demised premises
subject as aforesaid unto the Tenant for the term of 9 years and 11 months
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from the 9th day of May 19 1995. YIELDING AND PAYING therefor and thereout
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during each year of the first five years of the said term the yearly rent
of the Irish Pound equivalent of US $ 225,000 to be calculated on a monthly
basis as hereinafter provided and thereafter during each of the successive
periods of five years of which the first shall begin on the 9th day of May
2000 a rent equal to (a) the rent payable hereunder during the preceding
period or (b) such revised rent as may from time to time be ascertained in
accordance with the provisions in that behalf contained in the Fourth
Schedule hereto (whichever shall be the greater) AND the rent in respect of
each year of the said term is to be paid by monthly payments in advance on
the first day of each month of the Irish Pound equivalent of US$ 18,750 as
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calculated by reference to the exchange rate as published in the Wall
Street Journal on the day before the first day of each month of the term,
the first payment of such rent to be made on the execution hereof and shall
be in respect of the period from the 9th day of May 1995 to the 30th day of
May 1995 and all such rents to be payable by Xxxxxx's Order or otherwise as
the Landlord shall from time to time direct.
D THE Tenant HEREBY COVENANTS with the Landlord as follows:
TO PAY RENT
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(1) To pay to the Landlord during the continuance of this demise without any
deduction or set off the said yearly rent hereby reserved and made payable
at the times and in the manner aforesaid
TO PAY RATES
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(2) To pay and discharge all existing and future rates taxes duties charges
assessments impositions and outgoings whatsoever (whether parliamentary
municipal parochial local or of any other description) which are now or may
at any time hereafter be assessed charged or imposed upon or payable in
respect of the demised premises or any rent issuing thereout or assessed
charged or imposed upon or payable by the Owner Landlord Tenant or Occupier
in respect thereof except Xxxxxxxx's Income and Capital Taxes arising from
its interest in the demised premises.
TO CONTRIBUTE TO INSURANCE PREMIUMS
-----------------------------------
(3) To pay to the Landlord on demand all moneys which the Landlord shall from
time to time pay by way of premium for keeping insured the demised premises
from and against loss or damage by or otherwise in connection with the
Insured Risks or any of them.
(4) To pay to the Landlord annually on demand the entire of all sums which the
Landlord shall pay or expend under Lease dated 3 July 1990 between XXX and
the Landlord (The XXX
Lease) each year in contributing to the cost and expense of all necessary
maintenance, repair and upkeep (and operating cost where applicable) of
access roads, footpaths, common areas, drainage and water services and
public lighting.
(5) To discharge all electricity, gas, heating, air conditioning, telephone and
all other such charges incurred in respect of the demised premises and
further to discharge all costs incurred in providing canteen facilities,
office cleaning and internal security.
INTEREST ON PAYMENTS IN ARREAR
------------------------------
(6) If the Tenant shall fail to pay the rent hereinbefore reserved or any other
sum or sums payable hereunder within 21 days of the day and in the manner
herein prescribed for payment of same such unpaid sums shall bear interest
from and including the 21st day after the day or days on which same shall
have become due to the date of actual payment at the DIBOR Rate in the
Republic of Ireland at the date when such sum or sums become due plus three
per cent or if there shall be no such rate the corresponding or nearest
appropriate rate thereto.
TO COMPLY WITH NOTICES
----------------------
(7) A. At the Tenant's own expense to comply with every notice order
requisition direction or other thing given made or issued by a
competent authority affecting the demised premises for which the
Tenant shall be liable and have notice of whether the same is
addressed to or served upon the owner landlord lessee Tenant
or occupier or any other person whatsoever and deliver to the Landlord
a copy of
every notice order requisition direction or other thing given made
or issued by a competent authority affecting the demised premises as
soon as practicable after the Tenant becomes aware thereof.
B. Clause (7) shall not apply to any statutory notice requiring the temporary
first floor over the IQC Room situated in the demised premises and the two
storey engineering office above the software duplication area of the
demised premises to comply with such notice. In the event of such notice
being served on the Tenant the Tenant should immediately forward the notice
to the Landlord who shall within a reasonable time period carry out any
necessary works.
TO COMPLY WITH ENACTMENTS
-------------------------
(8) A. At the Tenant's own expense to execute all works and to provide and
maintain all arrangements which by or under any Act of Parliament or
of the Oireachtas already passed or any Act of the Oireachtas which
may hereafter be passed or Law of the European Community now or
hereafter to be passed and any instrument directive regulation or bye-
law made thereunder which has force in the state or by any Government
Department Local Authority or other Public Authority or duly
authorised Officer or Court of competent jurisdiction acting under or
in pursuance of any enactment or otherwise are or may be directed or
required to be executed provided or maintained at any time during this
demise upon or in respect of the demised premises or any part thereof
or in respect of the user thereof and not to do or omit or suffer to
be done or omitted in or about the demised premises any act
or thing by reason of which the Landlord or the Tenant may under any
enactment incur or become liable to pay any penalty damages
compensation costs charges or expenses and to indemnify and keep
indemnified the Landlord against all or any claims demands and
liability in respect thereof.
B. Clause (8)A shall not apply to the temporary first floor over the IQC
room situated in the demised premises and the two storey engineering
office above the software duplication area of the demised premises.
TO REPAIR AND PAINT INTERIOR AND EXTERIOR
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(9) (a) Well and substantially to repair cleanse maintain amend and keep the
demised premises and all buildings which may at any time during the
said term be erected on and all additions made to the demised premises
and the fixtures therein and the walls, half of any party walls,
fences roads sewers drains water mains fire mains hydrants and
appurtenances thereof with all necessary reparations cleansing and
amendments whatsoever.
(b) To paint the outside wood iron and other work of the demised premises
and all new buildings which may at any time during the said term be
erected on and all additions to the demised premises previously or
usually painted or which ought to be painted with two coats at least
of good oil and white lead paint in a proper and workmanlike manner
once in every three years of the said term and also during the last
year thereof (however determined) and at the same time with every such
painting to make good the rough cast or stucco work where necessary.
(c) To paint all the inside wood iron and other work previously or usually
painted or which ought to be painted of the demised premises and all
new buildings which may at any time during the said term be erected on
and all additions to the demised premises with two coats at least of
good oil and white lead paint in a proper and workmanlike manner once
in every five years of the said term and also during the last year
thereof (however determined) and at the same time with every such
painting to paper whitewash distemper colour and decorate the parts of
the interior of the demised premises and new buildings and additions
previously or usually or which ought to be done.
NOT TO OVERLOAD
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(10) (i) Not to install or suffer to be installed any machinery on the demised
premises which shall be unreasonably noisy or cause unreasonable
vibration or which shall be either dangerous or a nuisance to the
Landlord or to adjoining owners or occupiers or to any other party or
the neighbourhood.
(ii) Not to place or permit to be placed anything whatsoever on the roof of
the demised premises or any part thereof nor to overload any floor
area of the demised premises nor to suspend heavy objects from the
ceilings or walls thereof. The Tenant shall seek professional advice
at the Tenants own expense to ensure that there shall not be an
infringement of this covenant.
CONVEYANCING ACT NOTICES
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(11) To pay all expenses (including Solicitors' costs and Surveyors' fee) which
may be incurred by the Landlord incidental to the preparation and service
of a notice under Section 14 of the Conveyancing and Law of Property Act
1881 or any Act or Acts amending or extending the same notwithstanding that
forfeiture is avoided otherwise than by relief granted by the Court or in
the preparation and service of any notices under clause (11) hereunder.
RIGHT OF ENTRY
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(12) To permit the Landlord or the Landlord's Agents at any time or times after
due notice in writing except in cases of emergency to enter and examine the
demised premises to ensure that nothing has been done therein that
constitutes a breach of any of the covenants herein contained and also to
examine the state and condition of the demised premises and the Tenant will
remedy repair and make good all breaches and defects of which notice in
writing shall be given by the Landlord to the Tenant which in the
reasonable opinion of the Landlord is in need of remedy, repair or making
good and which the Tenant shall be liable to remedy repair or make good
under the covenants herein contained within three calendar months after the
giving of such notice and in case the Tenant shall make default in so doing
it shall be lawful (but not obligatory) for the Landlord to enter upon the
demised premises and to repair cleanse maintain and amend the same
accordingly and all expenses incurred thereby (including Surveyor's and
other professional fees) shall on demand be paid by the Tenant to the
Landlord and if not so paid be recoverable by the Landlord as liquidated
damages and the Tenant hereby irrevocably appoints the Landlord
to be the agent of the Tenant throughout the said term for the purpose of
entering on inspecting and viewing the condition of any parts of the
demised premises not at the time of such inspection in the occupation of
the Tenant.
TO PERMIT VIEWING
-----------------
(13) (a) To permit the Landlord during the six calendar months immediately
preceding the expiration or sooner determination of the said term to
affix and retain without interference upon any part of the demised
premises a notice for re-letting or selling the same and to permit all
persons with written authority from the Landlord or from the
Landlord's agent at reasonable times of the day to enter upon and view
the demised premises.
(b) At all convenient hours in the daytime on twenty four hours' notice
being given to permit all prospective purchasers or dealers in the
reversionary interest of the Landlord by order in writing of the
Landlord or his Agents to view the demised premises without
interruption but so that no undue interference is caused to the
business of the Tenant.
NO ALTERATIONS
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(14) Not without the consent in writing of the Landlord or the Landlords Agent
which shall not be unreasonably withheld or delayed first obtained nor
except in accordance with plans and specifications previously submitted to
and approved by the landlord nor except to the satisfaction of the Landlord
to erect or suffer to be erected any new building, erection,
wall, fencing or railing on the demised premises or make any alterations or
additions whatsoever either externally or internally in or to the demised
premises or any building or erection which may be erected thereon.
RESTRICTIONS OF USE
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(15) Not without the consent in writing of the Landlord which shall not be
unreasonably withheld or delayed to use or suffer the demised premises or
any part thereof to be used for residential purposes nor for public
charitable or institutional purposes nor for any illegal or immoral purpose
and not to use the demised premises save in accordance with plans accepted
by the Industrial Development Agency and not to use the areas referred to
in the Third Schedule hereto for storage of goods or any materials
equipment plant bins crates cartons boxes or receptacles for waste or other
item which is or is likely to be unclean, unsightly or in any way
detrimental to the amenity of the area and adjoining premises.
TO COMPLY WITH PLANNING
-----------------------
(16) (a) Not without the consent in writing of the Landlord which shall not be
unreasonably withheld or delayed to carry out or suffer to be carried
out in or over or under the demised premises any development as
defined by Section 3 of the Local Government (Planning and
Development) Act, 1963 or by any act amending or extending the same.
(b) Not to do or omit or suffer to be done or omitted anything on the
demised premises
the doing or omission of which shall be a contravention of the Town
Planning Acts and to comply with any notice in relation to the demised
premises lawfully served by any Planning Authority under the said Acts
and to indemnify the Landlord against all liability in respect
thereof.
(c) To give notice forthwith to the Landlord of any notice order or
proposal for a notice or order served on the Tenant under The Town
Planning Acts and if so required by the Landlord to produce the same
and at the request of the Landlord and at the cost of the Tenant to
make or join in making such objections or representations in respect
of any such notice order or proposal as the landlord may require.
(d) On the request in writing of the Landlord or his Agent forthwith to
pull down and remove any building erection alteration or addition
erected placed or made in breach of any of the foregoing covenants and
if any portion of the demised premises has been altered pulled down or
removed in breach of any of the foregoing covenants upon such request
in writing as herein provided forthwith to amend restore replace or
rebuild the demised premises according to the original plans and
elevations thereof.
NOT TO VITIATE INSURANCE
------------------------
(17) (a) Not to carry on or suffer upon the demised premises any trade or
occupation in such a manner as or do or suffer any thing which may
make void or voidable any
policy of insurance effected pursuant to this lease or which may
render any increased premium to be payable for the insurance thereof
or the rent thereout and to repay to the Landlord on demand all sums
incurred by way of increased premiums and all expenses suffered by the
Landlord in consequence of the breach of provisions contained in this
sub-clause.
(b) In the event of the demised premises or any part thereof being
destroyed or damaged by any of the perils in respect of which the
Landlord shall pursuant to the terms hereof have covenanted to effect
insurance to give notice thereof to the landlord as soon as such
destruction or damage shall come to notice of the Tenant.
(c) In the event of the demised premises or any part thereof being
destroyed or damaged by any of the risks in respect of which the
Landlord pursuant to the terms hereof shall have effected insurance at
anytime during the term hereby created and the insurance money under
any insurance against the same effected thereon by the Landlord being
wholly or partly irrecoverable by reason solely or in part of any act
or default of the Tenant then and in every such case the Tenant will
forthwith (in addition to the said rent) pay to the Landlord the whole
or (as the case may require) a fair proportion of the cost of
completely rebuilding and reinstating the same and any other premises
in respect of which the Landlords insurance shall be vitiated by the
act or default of the Tenant.
FACTORIES ACT
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(18) So long as and as often as the demised premises or any part thereof shall
be used for the purpose of a factory (as defined by Section 3 of the
Factories Act 1955) to comply with all requirements of the Factories Act
1955 and of any Act or Acts amending the same and of any rules or
regulations made or to be made thereunder and to indemnify the Landlord
against all liability in respect of any contraventions of any such
requirements. provided that the Tenant shall not be liable in respect of
any non-compliance with the said Act arising out of the condition of the
demised premises on or up to the date hereof.
NO NUISANCE
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(19) Not to do or suffer to be done upon the demised premises any act or thing
which shall be or become a nuisance damage danger annoyance or
inconvenience to the Landlord or any of the Landlord's Tenants or any of
the occupiers of any of the adjoining or neighbouring premises or the
neighbourhood and to pay all costs charges and expenses incurred by the
Landlord in abating any nuisance on the demised premises PROVIDED HOWEVER
that this covenant shall not apply to the temporary first floor over, the
IQC Room situated in the demised premises and the two storey engineering
office above the software duplication area.
NO AUCTIONS
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(20) Not without the consent in writing of the Landlord to hold or suffer to be
held upon the demised premises any sale by auction.
NO DANGEROUS SUBSTANCES
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(21) Not without the consent in writing of the Landlord to keep or suffer to be
kept on the demised premises any material of a dangerous combustible or
offensive nature or the keeping of which may at law constitute a nuisance
or require a licence of some local or public or is other authority.
NOT TO BLOCK UP
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(22) (a) Not to stop up or obstruct or permit or suffer to be stopped up or
obstructed or to suffer oil grease or other deleterious matters or
substances to enter the drains sewers gutters pipes channels and
watercourses of the demised premises and in the event of the same
becoming stopped up or obstructed to pay to the Landlord on demand
such amount as its Surveyor may determine in respect of any costs
incurred by the landlord in the clearing of the same.
(b) Not to discharge or allow to be discharged any noxious gases or
vapours from the demised premises or any solid matter from the demised
premises into the drains or sewers as aforesaid nor to discharge or
allow to be discharged therein any fluid of a poisonous or noxious
nature.
(c) Not to discharge or permit to be discharged any effluent into the
surface water drainage system.
NOT TO ASSIGN
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(23) (a) Not to assign underlet or part with or share the possession control or
occupation
of part only of the demised premises provided however that this
prohibition shall not apply to the sub-lease of part of the demised
premises to Logitech Ireland Limited and to Logitech Ireland Services
Limited.
(b) Not to assign underlet or part with or share the possession control or
occupation of the whole of the demised premises without the consent in
writing of the Landlord first obtained which consent shall not be
unreasonably withheld in the case of a respectable and responsible
assignee or underlessee of good financial standing proof of which is
to be furnished to the Landlord and who is an assignee involved in
manufacturing of a scale and nature satisfactory to the XXX PROVIDED
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ALWAYS that the demised premises shall not be underlet otherwise than
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upon the covenants and conditions herein contained including provision
for Rent Review at the same times and in the matter herein provided
and before granting such consent the Landlord shall be entitled to be
furnished by the Tenant with particulars of the proposed assignment or
underletting and the Tenant shall pay the Landlord's reasonable legal
costs and other expenses for every such consent and upon any
assignment to obtain if the Landlord shall so require an acceptable
guarantor or guarantors for any assignee and a direct covenant by the
assignee with the Landlord to observe and perform the covenants and
conditions of this Lease and on the grant of any underlease out of
this Lease to obtain (i) an unqualified covenant on the part of the
underlessee that the underlessee will not assign underlet or part
with the possession of part only of the demised premises and (ii) a
covenant on the part of the underlessee that the underlessee will not
assign underlet or part with or share possession of the whole of the
demised premises without obtaining the previous written consent of the
landlord under this present Lease (such consent not to be unreasonably
withheld as aforesaid) and to provide in such underlease that any sub-
underleases granted out of such underlease whether immediate or
mediate shall contain similar covenants.
(c) Within one calendar month after the execution of any assignment
transfer underlease or the devolution of the demised premises to give
notice in writing with particulars to the Landlord's Solicitors,
Xxxxxxxx Xxxxxx Xxxxxxxx Solicitors or such other solicitors as may be
notified, and to produce to them with such notice such assignment or
transfer or the counterpart of such underlease or the probate or
letters of administration or other instrument under which such
devolution arises and leave the same with them for the period of
fourteen days for registration and pay to them a reasonable fee for
the registration of each such deed or document.
TO PAY STAMP DUTY
-----------------
(24) To pay the Stamp Duty upon this Lease and Counterpart thereof.
TO PAY VALUE ADDED TAX
----------------------
(25) To pay to the Landlord on demand any Valued Added Tax (if any) (or any tax
of a similar nature that may be substituted for it or levied in addition to
it) arising on the creation of this Lease or chargeable in respect of any
payment made by the Tenant under any of the
provisions of or in connection with this Lease.
GENERAL INDEMNITY
-----------------
(26) To take out and maintain at all times during the term hereby granted a
Policy of Insurance covering Public liability in respect of and covering
the liability of the Landlord and its Agents and the Tenant in respect of
the demised premises in an amount of not less than IRE (Pounds)1,000,000.00
(One Million Pounds) to be adjusted from time to time as the Landlord deems
necessary and to produce said Certificate of Insurance and the receipt for
payment of the last premium thereon to the Landlord on demand and to
indemnify and keep indemnified the Landlord against all and any actions
expenses costs claims damages and other liabilities whatsoever in respect
of the injury or death of any person or damage to any property arising out
of the negligence or default of the Tenant and in particular without
prejudice to the generality of the foregoing arising directly or indirectly
out of:-
(a) The state of repair or condition of the demised premises.
(b) The making or execution of any alternation to the demised premises or
the state of repair or condition of such alternation.
(c) The user of the demised premises.
(d) Any work carried out or in the course of being carried out to the
demised premises.
(e) Anything now or hereinafter attached to or projecting from the demised
premises.
(f) Any other cause whatever arising out of the negligence or default of
the Tenant.
FIRE PRECAUTIONS
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(27) A. At all times during the said term to comply with all recommendations
or requirements of the appropriate authority and the insurers of the
Landlord whether notified or directed to the Landlord or the Tenant
(who shall notify expeditiously the other) in relation to fire
precautions and to indemnify the Landlord against any costs or
expenses in complying with any such requirements or recommendations
and not to obstruct the access to or means of working any apparatus
and appliances for the time being installed in the demised premises.
B. Clause (27)A shall not apply to any statutory notice requiring the
temporary first floor over the IQC Room situated in the demised
premises and the two storey engineering office above the software
duplication area of the demised premises to comply with such notice.
In the event of such notice being served on the Tenant the Tenant
shall immediately forward the notice to the Landlord who shall within
a reasonable time period carry out any necessary works.
TO YIELD UP
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(28) To yield up unto the Landlord at the expiration or sooner determination of
the said term together with all the keys thereof so painted repaired
cleansed maintained amended and kept as aforesaid the demised premises and
all new buildings erected thereon and all additions and improvements made
thereto in the meantime and all fixtures of every kind in or upon the
demised premises or which during the same term may be affixed or fastened
to or upon the same except Tenant's or trade fixtures.
(29) A. Not to discharge omit spill or otherwise cause to pass into the
Environment any pollutant or hazardous substance. In this clause,
Environment means the Environment generally including all of its
physical and ecological aspects including, without limitation, air
(including without limitation that within buildings or natural or
manmade structures above or below ground); water (including without
limitation the open sea, coastal or inland waters and ground waters,
drains and sewers); land (including without limitation the sea bed or
river bed under any water as described above, surface land and sub-
surface land).
B. To obtain any Environmental Licence necessary for the conduct of its
operations within the demised premises. In this clause, Environmental
Licence means any governmental, statutory, local authority or other
licence, approval, consent, permit or authorization of whatever kind,
relating to environmental law.
C. To comply with any notice from any local authority or other official
agency requiring compliance under any environmental law regarding any
damage caused by it to the Environment or any breach of environmental
law or of any Environmental Licence and to forward a copy of any such
notice to the Landlord. The Tenant shall pay any increased insurance
premium that may be payable by the Landlord where such increase arises
as a result of the issue of such notice.
D. The Tenant shall indemnify the Landlord against all and any actions,
expenses, costs, claims, damages and other liabilities whatsoever in
respect of the injury or
death of any person or damage to any property howsoever arising out of
the breach of this clause.
E. Provided that the Tenant shall not have to comply with any such notice
or pay any such increased premium in the event of the Tenant taking
legal proceedings to challenge the validity of such notice. Should
such legal proceedings be unsuccessful the Tenant shall comply with
the aforesaid notice. The Tenant shall indemnify the Landlord against
any costs which the Landlord may incur arising out of the institution
of any such proceedings.
F. Provided that the Tenant shall not be liable in respect of injury or
death of any person or damage to any property arising out of the wave
soldering process carried out by the Landlord at the demised
properties which process involves the use of flux and thinners, to
clean oxides from printed circuit boards and the generation of waste
which is stored in 40 gallon drums.
E. TENANT'S OPTION TO DETERMINE
----------------------------
1 If the Tenant shall have given to the Landlord not less than nine
months prior notice in writing of its intention to terminate this
Lease the Tenant may at any time after the expiration of the fifth
year of the term hereby granted terminate this Lease PROVIDED THAT:-
(a) The Tenant shall have surrendered and delivered up possession to
the
Landlord of the entire of the demised premises together with all
the Lessor's fixtures and fittings therein on or before the
expiration of the said notice.
(b) The Tenant shall without delay upon being requested by the Lessor
in that behalf execute and deliver to the Lessor all such
documentation as may reasonably be required by the Landlord with
a view to implementing and perfecting the documentation to be
effected, and
(c) The acceptance by the Landlord of any such surrender shall be
without prejudice to any claim by it against the Lessee or by the
Tenant against it in respect of any antecedent breach of covenant
condition or stipulation herein contained.
(2) If the Tenant shall give notice of its desire to determine as
aforesaid then the Landlord shall be permitted during the 9 months
preceding the expiration of such notice to affix and retain without
interference upon any part of the property suitable for the purpose a
notice for the disposal by way of sale, letting or otherwise of the
property and persons with written authority form and accompanied by
the Landlord or its Agents shall be permitted on giving forty eight
hours notice to the Tenant, at all reasonable times to view the
property, escorted by a nominee of the Tenant if practical:
(3) In all respects time shall be deemed of the essence of this clause.
F. THE LANDLORD HEREBY COVENANTS with the Tenant:-
-----------------------------
TO INSURE
---------
1. A. Subject to the Landlord being able to effect insurance against any one
or more of the Insured Risks and subject to reimbursement of the
appropriate insurance premium as herein provided to insure and keep
insured (unless such Insurance shall be vitiated by the act or default
of the Tenant) against loss or damage by or from the Insured Risks
under a Policy or Policies of Insurance effected with an Insurance
Office or Offices of repute in the name of the Landlord the demised
premises and every part of same in the full replacement and
reinstatement value thereof such value to be determined (in accordance
with the meaning herein assigned to the expression "Insured Risks")
from time to time by the Surveyor for the Landlord and to produce to
the Tenant copy of the policy and a copy of the receipt for payment of
the last premium thereunder.
PROVIDED ALWAYS that if the Tenant is of the opinion that the full
---------------
replacement and re-instatement value as determined by the landlord's
Surveyor is too low the Tenant shall be entitled to serve notice on
the Landlord that it requires the full replacement and re-instatement
value to be increased and the Landlord shall on receipt of such notice
and subject to the Landlord being able to effect insurance in the said
amount and subject to reimbursement of the appropriate insurance
premium as herein provided increase the insurance to the said full
replacement and re-instatement value as notified by the Tenant.
B. In the event that the Landlord changes the Policy of Insurance
referred to above details shall be forwarded to the Tenant.
TO REINSTATE
------------
2. In case the demised premises or any part thereof shall be destroyed or
damaged by fire or from any of the Insured Risks then unless the relevant
policy shall have been vitiated or rendered less than fully effective by
any act, neglect, default or omission on the part of the Tenant (subject to
the Landlord obtaining Planning Permission and Building Bye Law Approval
and all other necessary pertinent licences and approvals) to reinstate the
demised premises substantially in accordance with its existing plan and
elevation and as often as shall happen to lay out all monies received in
respect of such insurance as aforesaid as soon as practicable in or upon
rebuilding, repairing or reinstating the demised premises in a good and
substantial manner and the Landlord shall be required to make up any
deficiency out of its own monies and the Landlord shall not call upon the
Tenant to make up any such deficiency out of the Tenant's own monies
PROVIDED ALWAYS that in the event of the Landlord being unable to reinstate
the demised premises substantially in accordance with its existing plan and
elevation due to refusal of planning or other approvals consents or
licences the Tenant agrees to surrender this Lease without fine or other
compensation when called upon by the Landlord to do so whereupon the said
Insurance monies shall belong absolutely to the Landlord PROVIDED FURTHER
that for the purposes of this Lease the Tenant hereby absolutely waives and
abandons its rights
(if any) to surrender this Lease under the provisions of Section 40 of the
Landlord and Tenant Law Amendment Ireland 1860 Act or otherwise.
SUSPENSION OF RENT
------------------
3. A. If the demised premises or any part thereof shall at any time be
destroyed or so damaged by fire or any other of the Insured Risks as
to be unfit for occupation or use and the relative Policy or Policies
of Insurance effected by the Landlord shall not have been vitiated or
payment of the Policy monies refused in whole or in part in
consequence of any act neglect or default on the part of the Tenant or
any party claiming through or under it then and in such case the Rent
hereby reserved or a fair and just proportion thereof according to the
nature and extent of the damage sustained shall be suspended and cease
to be payable until the demised premises shall again have been
rendered fit for occupation and use or for a period of three years
from the date of such destruction or damage whichever shall be the
shorter and in the determination of such proportion or period of the
Certificate of the Surveyor to be appointed on the application of
either party by the Chairman of the Chartered Surveyors in Ireland be
final conclusive and binding upon and between the parties hereto.
B. PROVIDED HOWEVER that the Tenant shall be permitted to surrender the
----------------
Lease if the demised premises shall not have been rendered fit for
occupation and use within a period of 3 years from the date of such
destruction or damage and upon the Tenant giving to the Landlord
written notice of its intention so to surrender,
this Lease shall be at an end and of no further force or effect but
without prejudice to the rights of either party arising in respect of
any antecedent breach of covenant or condition on the part of the
other.
4. THAT the Tenant paying the rent hereby reserved and performing and
observing the several covenants conditions and agreements herein contained
and on the Tenant's part to be paid performed and observed shall and may
peaceably and quietly hold and enjoy the demised premises during the term
hereby granted without any lawful interruption or disturbance from or by
the Landlord or any person claiming under or in trust for the Landlord.
5. The Landlord hereby agrees to indemnify the Tenant against all and any
actions, expenses, costs, claims, damages and other liabilities whatsoever
in respect of the injury or death of any person or damage to any property
arising out of the construction of the temporary first floor over the IQC
Room situated in the demised premises and the two storey engineering office
above the software duplication area of the demised premises and arising out
of the fact that such areas do not comply with the necessary regulations
PROVIDED HOWEVER that this indemnity shall immediately terminate upon the
production by the Tenant of a Fire Safety Certificate under the Building
Regulations confirming rectification of the aforesaid.
G. FORFEITURE
----------
PROVIDED ALWAYS and it is hereby agreed that if the rent hereby reserved or
---------------
any part thereof shall at any time be in arrear and unpaid for twenty one
days after it becomes due
(whether legally demanded or not) or if the Tenant shall go into
liquidation (not being a voluntary liquidation for the purpose only of
reconstruction) or if the Tenant being an individual shall become bankrupt
or make any arrangement or composition with his or her Creditors or if the
Tenant being a partnership limited or otherwise, upon dissolution of that
partnership or if any covenant condition or agreement on the part of the
Tenant herein contained shall be not performed or observed then and in any
such case it shall be lawful for the Landlord or any person or persons duly
authorised in that behalf into or upon the demised premises or any part
thereof in the name of the whole to re-enter and the demised premises to
hold and enjoy thenceforth as if these presents had not been made but
without prejudice to any rights of action or remedy of the Landlord in
respect of any antecedent breach by the Tenant of any of the stipulations
herein contained and on the happening of any of the said events it shall
also be lawful for the Landlord to determine this demise by giving to the
Tenant on leaving for it at the demised premises or sending by registered
post to its place of business last known a Notice to Quit and deliver up
possession of the demised premises within fourteen days of the service of
the said Notice to Quit the said Notice expiring on any day not necessarily
a xxxx day and any day of the week and upon the expiration of such Notice
the tenancy hereby created shall be deemed to have been duly determined by
such Notice to Quit and the Landlord shall thereupon be entitled to
possession of the demised premises as of its former estate and as if the
tenancy hereby created had never existed.
In the event that any of the aforesaid events should occur, the Tenant
shall be obliged to continue to pay all rents, rates and other charges
payable under the terms
of this Lease for the residue of the term herein. Under landlord's
general legal obligations, the landlord will be obligated to
mitigate its damages and thereby offset Tenant's continuing
obligation to pay rents, rates and other charges set forth herein.
However, Xxxxxx and Landlord agree that, during the four-year period
following commencement of this Lease, Landlord's obligation to
mitigate damages shall be satisfied if it uses its best efforts and
best endeavors to procure a new tenant involved in manufacturing of a
scale and nature satisfactory to the XXX.
H (1) In the event of a dispute between the parties hereto arising out of
the terms of this Lease the matter shall be referred to an Arbitrator
to be nominated as provided for in the Fourth Schedule herein.
(2) All such Arbitrations as aforesaid shall be conducted in accordance
with the provisions set forth in the Arbitration Acts 1954 and 1980 or
in any Act or Statutory Rule or Order extending amending modifying or
replacing the same and for the time being in force.
(I) It is hereby acknowledged by the Landlord that the XXX have covenanted in
the XXX Lease with the Landlord to construct and maintain in good order
repair and condition the roads and footpaths coloured yellow on Plan I
annexed hereto and to maintain the sewers, drains and watermains (outside
the perimeter of the demised premises) which serve the demised premises
unless and until the same have been taken in charge by the Local Authority
and
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in the event that the XXX fails to comply with the said covenant the
Landlord shall use its best endeavours to ensure compliance provided that
if proceedings are instituted to enforce compliance, the cost of such
proceedings would be shared between the Landlord and the Tenant in
proportion to the respective values of their interests in the demised
premises.
AND IT IS HEREBY CERTIFIED that the transaction hereby effected does not form
--------------------------
part of a larger transaction or of a series of transactions in respect of which
the amount or value or the aggregate amount or value of the consideration (other
than rent) exceeds (Pounds)5,000.
AND IT IS HEREBY FURTHER CERTIFIED that the property hereby demised is property
----------------------------------
situate in the County Borough of Cork
AND IT IS HEREBY AGREED by the Landlord and the Tenant that the provisions of
-----------------------
this Lease shall be construed in accordance with the laws of Ireland.
AND the Landlord hereby assents to the registration of this Lease as a burden on
---
the lands comprised in folio 45419F of the Register County Cork
IN WITNESS whereof the parties hereto have hereunto caused their respective
----------
Common Seals to be affixed hereto the day and year first herein written.
FIRST SCHEDULE
--------------
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ALL THAT the premises and lands situate at Cork Business and Technology Park,
Model Farm Road in the County of Cork as shown edged with a red verge line on
Plan 1 annexed hereto being part of the lands comprised in folio 45419F of the
Register County of Cork with the factory premises thereon as shown on Plan 2
annexed hereto.
SECOND SCHEDULE
---------------
(Exceptions and Reservations)
Excepting and reserving unto the Landlord:-
1 All mines and minerals in or upon the demised premises with full powers of
working and taking the same.
2 The full free and uninterrupted passage and running of water and soil gas
electricity telephone and other services or supply through the sewers
drains mains pipes wires cables watercourses conduits and subways which are
now or may be laid down in upon or under the demised premises to and from
any adjoining or adjacent land and premises with power for the Landlord:
(a) to enter upon the demised premises and to construct and lay therein
and thereunder sewers drains mains pipes wires cables watercourses
conduits and subways and to
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connect the same doing as little damage as is reasonably possible to
the demised premises.
(b) to enter upon the demised premises for the purpose of cleaning
repairing altering replacing and renewing the said sewers drains mains
pipes wires cables watercourses conduits and subways.
3 All rights of light or air now subsisting or which might (but for this
exception or reservation) be acquired over any such adjoining or adjacent
land to the intent that the Landlord may construct or reconstruct any
buildings or installations on such adjoining or adjacent land in such
manner as the Landlord may consider fit notwithstanding any interference
thereby occasioned to the access of light or air to the demised premises.
4 The full and free right to support for the time being enjoyed by buildings
and premises adjoining or adjacent to the demised premises.
5 The full and free right and liberty to enter upon the demised premises at
all reasonable times in order to build thereon or on or into any dividing
boundary or party walls or fences on the demised premises subject to all
damage thereby occasioned being made good with all convenient speed by the
person or persons exercising such right.
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6 A right in common with Landlord its Tenants licensees servants and agents
to park motor vehicles on the area set aside for car parking.
7 All other easements or rights in the nature of easements or quasi-easements
now or hereafter enjoyed by property adjoining or adjacent to the demised
premises.
THIRD SCHEDULE
--------------
The following easements rights and privileges are for the benefit of the Tenant
its successors and assigns the owners and occupiers for the time being of the
lands hereby demised or any part thereof its and their respective under-Tenants
and servants agents licensees and invitees in common with all other persons
having the like right that is to say:-
A A right of way in common with the Landlord its Tenants licensees servants
and agents and with all other persons entitled thereto at all times and for
all purposes to pass and xxxxxx with or without vehicles over and along the
lands coloured yellow on Plan 1 hereto annexed.
PROVIDED ALWAYS that in exercise the foregoing rights the Tenant shall at no
time cause or permit to be caused any obstruction to the exercise of such rights
by other persons entitled the
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place or permit to be placed on the said lands coloured yellow on Plan 1 annexed
hereto and area set aside for car parking anything whatsoever save as
hereinbefore provided.
FOURTH SCHEDULE
---------------
PROVISIONS AS TO RENT REVISIONS
-------------------------------
1 The revised rent referred to in the within Lease in respect of any of the
periods therein mentioned may be agreed at any time between the Landlord
and the Tenant or (in the absence of agreement) be determined not earlier
than the date of commencement of such period ("the Review Date") by an
Arbitrator such Arbitrator to be nominated (in the absence of agreement
between the parties) upon the application (made not more than three
calendar months before or at any time after the Review Date) of either the
landlord or the Tenant by the Chairman (or other officer endowed with the
functions of such Chairman) of
(i) The Society of Chartered Surveyors in the Republic of Ireland or,
(ii) such Body of Professional Surveyors or Valuers as (in the event of
such Society not then being in existence) shall for the time being
have undertaken in the Republic of Ireland the functions (in the
activity of property valuation) currently performed by such Society or
(should the Chairman or other officer as aforesaid be unwilling or
unable to make the nomination) by the next senior officer of such
Society or
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Body who is willing and able to make the nomination or (in the event
of there being no such officer willing and able to make the nomination
or should such Body not be in existence or not be readily
identifiable) by the President (or other officer endowed [missing page
32]
(b) The fact that the entire of the demised premises may have been
underlet at a rent less than the rent payable hereunder.
(c) The goodwill which shall have attached to the demised premises by
reason of the business carried on thereat.
(d) Any works executed by and at the expense of the Tenant or any
predecessor in title of the Tenant (or any party lawfully occupying
the demised premises or any part thereof under the Tenant or any such
predecessor) in or to or in respect of the demised premises otherwise
than in pursuance of an obligation on foot of the within Lease or any
agreement therefor.
2 All such arbitrations as aforesaid shall be conducted in accordance with
the provisions set forth in the Arbitration Acts 1954 and 1980 or in any
Act or Statutory Rule or Order extending amending modifying or replacing
the same and for the time being in force.
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3 If the revised rent in respect of any period ("the Current Period") shall
not have been ascertained on or before the Review Date referable thereto
rent shall continue to be payable up to the xxxx day next succeeding the
ascertainment of the revised rent at the rate payable during the preceding
period AND on such xxxx day the Tenant shall pay to the Landlord the
---
appropriate instalment of the revised rent together with any shortfall
between (i) rent actually paid for any part of the Current Period and (ii)
rent at the rate of the revised rent attributable to the interval between
that Review Date and such xxxx day (other than the said appropriate
instalment if payable in arrear) and together further with interest on said
shortfall such interest to be compounded on a day to day basis and to be
assessed at such a rate as shall be equivalent to the yield (at issue and
before deduction of tax if any) on the security of the Government last
issued before the commencement of the Current Period (allowance having been
made in the calculation of the said yield for any profit or loss which may
occur on the redemption of the security). For the purpose of this paragraph
the revised rent shall be deemed to have been ascertained on the date when
the same shall have been agreed between the parties or as the case may be
on the date of the notification to the Tenant of the award of the
Arbitrator.
4 If there should be in force at the commencement or during the currency of
any particular relevant period any Statute or Order (directly or
indirectly) prohibiting or restricting an increase of rent in respect of
the demised premises the provisions of this Schedule and of the Within
Lease may nevertheless be invoked or reinvoked to determine the rent which
would but for the said prohibition or restriction be payable during such
relevant period but
-40-
(if appropriate) the further implementation thereof shall be suspended in
effect for such period as may be required by Law.
5 When and so often as the revised rent shall have been ascertained pursuant
to the provisions herein set forth memoranda thereof shall thereupon be
signed by or on behalf of the Landlord and the Tenant and shall be annexed
to the within Lease and its Counterpart and the parties shall bear their
own costs in relation to the preparation and completion of such memoranda.
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