EXHIBIT 10.1
DATED this 22nd day of October 1998
NORWELL INVESTMENTS LIMITED
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First Part
PLAZA BLOCKS C &D
CONSTRUCTION LIMITED
Second Part
VISIO INTERNATIONAL LIMITED
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Third Part
and
VISIO CORPORATION
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Fourth Part
AGREEMENT FOR LEASE
Xxxxxx Xxx,
Xxxxxx Xxx Xxxxxxxx
Xxxxxxxxx Xxxxxxx
Xxxxxx 0
THIS AGREEMENT made the 22nd day of October 1998 BETWEEN NORWELL
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INVESTMENTS LIMITED having its registered office at 0 Xxxxxxxxxxx Xxxxx in the
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City of Dublin (hereinafter called "the Landlord" which expression shall where
the context so admits or requires include its successors and assigns) of the
First Part
PLAZA BLOCKS C&D CONSTRUCTION LIMITED having its registered office 5 Mount
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Xxxxxx Xxxxxxxx, Xxxxxx 0 (hereinafter called the "the Developer" which
expression shall where the context so admits or requires include its successors
and assigns) of the Second Part
VISIO INTERNATIONAL LIMITED having its registered office at Fitzwilton
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House, Wilton Place, Dublin 2, (hereinafter called "the Tenant" which expression
shall where the context so admits or requires include its successors and
permitted assigns) of the Third Part AND
VISIO CORPORATION of 000 Xxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxxxx
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98101, USA (hereinafter called "the Guarantor" which expression shall where the
context so admits or requires include its successors and permitted assigns) of
the Fourth Part.
WHEREAS:
A. The Developer is in the course of procuring the design and construction
of a number of office buildings on the Estate.
B. Subject to the terms hereinafter appearing the Landlord has agreed to
grant and the Tenant and the Guarantor have agreed to take the Lease of Block 1
of the Estate subject to the terms and conditions hereinafter appearing.
C. The Building will extend to 39,270 Sq. Ft. approximately of Net
Lettable Area as more particularly described in the Specification.
NOW IT IS HEREBY AGREED as follows:
1 INTERPRETATION
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1.1 In this Agreement the following expressions shall be deemed to have
the following meanings:-
"Block 1" means the building shown edged red on Plan "A" formerly known
Building D;
"Break Option Deed" means the Break Option Deed in the form annexed hereto
in Appendix 1.
"The Building" means Xxxxx 0, Xxxxx Xxxxx Xxxxx, Xxxxx Xxxxx Xxxxxx,
Xxxxxx;
"Building Contract", means the contract to be entered by the Developer
with the Contractor in respect of (inter alia) the Building Works in the form of
the agreed draft annexed hereto as Appendix 6;
"Building Programme", means the programme for the carrying out of the
Building Works annexed hereto as Appendix 7 and references in clause 7 to the
"Contractual Completion Date" shall mean the contractual completion date as
shown in the Building Programme.
"Building Works", means the works in connection with the construction of
the Building and the other works as described in the Specification;
"Car Spaces" means the 33 car parking spaces in respect of Block 1,
intended to be included in Part Two of the Second Schedule to the Lease shown
shaded pink on Plan A;
"Certificate of Practical Completion" means the Certificate of the
Developer's Architect that the Building Works have reached the stage of
practical completion within the meaning of the Building Contract or such earlier
or later date as may be determined in accordance with the provisions of this
Agreement;
"Collateral Warranties" means the Collateral Warranties in favour of the
Tenant from the Contractor, the Sub-Contractors and the Design Team in the forms
annexed hereto as Appendix 2;
"Commencement Notice" means the commencement notice to be served as
required by the regulations issued pursuant to the Building Control Act, 1990.
"Contractor" means X.X. Xxxxxxx & Xxxx xx Xxxxxx Xxxx, Xxxxxx 00 or such
other Contractor as the Developer shall appoint in substitution therefor
following prior notice to the Tenant;
"Date of Practical Completion" means the date upon which the Developer's
Architect issues the Certificate of Practical Completion or as otherwise
determined pursuant to the provisions of clause 3 hereof;
"Defects Liability Period" means the period of 12 months commencing on the
Date of Practical Completion;
"Developers Design Team" means the Developer's Architect, the Developer's
Structural Engineer and the Developer's Mechanical and Electrical Engineers.
"Developer" includes its successors and assigns.
"Developer's Architect" means Xxxxx Xxxxxxx Xxxxx & Partners or such other
Architect as the Developer shall appoint in substitution therefor following
prior notice to the Tenant.
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"Developer's Structural Engineer" means Xxx Xxxx or such other Structural
Engineer as the Developer shall appoint in substitution therefor following prior
notice to the Tenant.
"Developer's Mechanical and Electrical Engineer" means Varming Xxxxxxx
Xxxxxx & Associates or such other Mechanical and Electrical Engineer as the
Developer shall appoint in substitution therefor following prior notice to the
Tenant.
"Estate" means the office development shown edged blue on the Site Plan and
known as Grand Xxxxx Xxxxx, Xxxxx Xxxxx Xxxxxx, Xxxxxx 0.
"Fire Safety Certificate" means the Fire Safety Certificate reference
97/1840 dated 7th January 1998 issued by Dublin Corporation in accordance with
the requirements of the Building Control Act 1990 and any further such
Certificate as may be required for the Building;
"Independent Architect" means Xxxxx Xxxxx of Xxxxx Xxxxxx Xxxx, 0 Xxxxxxx
Xxxxxx, Xxxxxx 0 or in the event of him being unwilling or unable to act such
other Architect as may be agreed between the parties and in default of agreement
to be nominated upon the application of either party by the President for the
time being of the Royal Institute of the Architects of Ireland.
"Independent Surveyor" means XX Xxxxxx of Xxxxxxxxxx Xxxxxx, 00 Xxxxxxxxxxx
Xxxxx, Xxxxxx 0 or in the event of his being unwilling or unable to act such
other Chartered Valuation Surveyor as may be agreed between the parties and in
default of agreement to be nominated upon the application of either party by the
President for the time being of the Society for Chartered Surveyors.
"Landlord" includes its successors and assigns.
"Lease" means the Lease in the form annexed hereto as Appendix 1.
"Letters of Appointment", the letters or agreements pursuant to which each
member of the Developers Design Team was appointed by the Developer, copies of
which have been furnished to the Tenant.
"Measurement Drawings" means the set of drawings appended to this Agreement
marked "Measurement Drawings" together with any substitute drawings made
necessary by any variation to the Building which are to be used for the purpose
of and as the basis for measuring the Net Lettable Area of the Building.
"Measuring Code" means the Measuring Practice Guidance Notes issued jointly
by the Society of Chartered Surveyors with others.
"Month(s)" means calendar month(s).
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"Net Lettable Area" means the net lettable area of the Building calculated
in accordance with the provisions of Clause 4
"Opinions on Compliance" means Opinions of Compliance with Planning
Permission and Building Regulations of the Developer's Architect substantially
in the forms annexed hereto as Appendix 3.
"Planning Permission" means the Notification of Grant of Planning
Permission Plan Nos. 2049/95 and 2597/97 issued by Dublin Corporation.
"Retention Fund" has the meaning ascribed thereto in the Building Contract.
"Relevant Consents", the Planning Permissions, the Fire Safety
Certificates, and all other permissions, consents, approvals, licences,
certificates and permits in legally effectual form as may be necessary to
lawfully commence, carry out, maintain and complete the Building Works.
"Side Letters" means the Side Letters in the form annexed hereto in
Appendix 1.
"Site Plan" means the Plan annexed hereto marked Plan A and entitled "Site
Plan".
"Snag Items" includes items which are normally dealt with in a snagging
list (which term shall have the meaning understood by custom in the building
trade) and any items of landscaping which may reasonably be deferred due to
Practical Completion being achieved outside the recognised planting seasons.
"Specification" means the Plans and Specification referred to in the cover
sheet annexed hereto as Appendix 4.
"Sub-Contractors" mean the subcontractors listed in Appendix 5 hereto.
"Tenant" includes its successors and permitted assigns.
"Tenant's Project Manager" means FKM Engineering Limited of Xxxxxxx Xxxx,
Xxxxxx 00 or such other Project Manager as the Tenant shall appoint and notify
to the Developer in writing.
"VAT" means Value Added Tax.
2 DEVELOPERS OBLIGATIONS
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2.1 The Developer shall procure that the construction of the Building
conforms substantially in all material respects with the provisions of the
statutes applicable thereto and with the regulations of the local authority and
of any other statutory undertaking and without prejudice to the generality of
the foregoing, the Building, shall on the Date of Practical Completion, in all
respect substantially comply with the Relevant Consents.
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2.2 The Developer will procure that the Building Works are carried out:-
2.2.1 in a good and workmanlike manner and in accordance with good
building practice;
2.2.2 with good and suitable materials;
2.2.3 substantially in accordance with the Building Contract,
Specification and the Relevant Consents;
2.2.4 with due diligence and speed; and
2.2.5 without using any materials or substances for the time being
not recommended by the relevant current Irish standards and codes of practice
(and in so far as there are no such Irish standards and codes of practice,
British standards and codes of practice will apply) as being of deleterious,
unsatisfactory or unsuitable quality.
2.3 The Developer shall at all times use all reasonable endeavours to
procure compliance by the Developers Design Team with the obligations on their
part contained in the Letters of Appointment and by the Contractor with its
obligations under the Building Contract. In the event of any member of the
Developer's Design Team or the Contractor being replaced the Developer shall
notify the Tenant in writing and shall procure that any replacement appointee is
of similar expertise and standing to the party replaced and is obliged to
provide to the Tenant a Collateral Warranty.
2.4 The Developer shall as employer under the Building Contract and under
the Letters of Appointment comply in a timely manner with the several
obligations on its part contained in the Building Contract and in the Letters of
Appointment.
2.5 The Developer shall procure that at the Date of Practical Completion
thereof the Building shall be left in good and clean condition cleared of all
unused building materials plant, equipment and temporary structures.
2.6 The Developer shall have responsibility for compliance with the Health
Safety and Welfare at Work (Construction) Regulations 1995 in respect of the
Building including;
2.6.1 the appointment of a competent project supervisor (design
stage);
2.6.2 the appointment of a competent project supervisor (construction
stage);
2.6.3 the preparation of a preliminary safety and health plan;
2.6.4 the service of the Commencement Notice;
2.6.5 the preparation of a safety file.
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PROVIDED ALWAYS that nothing herein shall xxxxxx the Developers power to
appoint appropriate parties in respect of the design stage and construction
stage of the Building Works specified above.
2.7 The Developer shall not (without the prior written approval of the
Tenant (such consent not to be unreasonably withheld or delayed)) make:-
2.7.1 any material change, variation or amendment to the Building
Contract or the Letters of Appointment;
2.7.2 any change, variation or amendment (other than a minor or
inconsequential nature or involving substitution of materials of equal or better
quality to those specified) to the Specification.
2.8 The Developer shall not compromise or waive any claim it may have
against the Contractor or any member of the Developers Design Team in any way
that will prejudice the interest of the Tenant.
2.9 The Developer shall not without the prior written consent of the
Tenant discharge or release the Contractor or the Developers Design Team in
relation to the Building nor restrict or diminish any of their obligations or
liabilities relating to the Building.
2.10 On the Date of Practical Completion, the Developer shall furnish to
the Tenant:
2.10.1 the originals of the Collateral Warranties.
2.10.2 Certified copies of the originals of the Opinions on
Compliance.
2.10.3 an undertaking to provide to the Tenant within 60 days of the
Date of Practical Completion two entire sets of "as constructed" drawings of
the Building (to include services) in the form of CAD Disk and as stable
negatives;
2.10.4 an undertaking to provide to the Company within 60 days of the
Date of Practical Completion two copies of all relevant operational and
maintenance manuals for services in connection with the Building (together with
copies of all necessary maintenance contracts)
2.10.5 two copies of all commissioning certificates and three copies
of all insurance test certificate for boilers and lifts.
2.10.6 an undertaking to provide to the Tenant within 60 days of the
Date of Practical Completion a copy of the Safety File maintained pursuant to
the Safety Health and Welfare at Work (Construction) Regulations 1995
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2.10.7 certified copy receipts or official evidence of compliance
with all financial contributions and conditions of a financial nature (if any)
in the Planning Permission.
2.10.8 an undertaking to provide to the Tenant a certified copy of
the Opinions on Compliance in respect of the entire of the works to be carried
out by the Contractor under the Building Contract within 28 days of the issue of
the Certificate of Practical Completion by the Architect in respect of the
entire of such works.
2.10.9 an undertaking to provide to the Tenant a certified copy of
the final Opinions on Compliance in respect of the completion of the entire
Estate within 28 days of the completion of the development of the Estate.
2.11 The Developer shall exercise all due skill and care reasonably
expected of an experienced property developer in procuring the construction and
completion of the Building. Subject to compliance by the Developer with its
obligations herein contained it is agreed that the Developer shall not otherwise
have any liability to the Tenant on account of any negligence or breach of
contract on the part of any of the parties engaged in relation to the
construction and completion of the Building.
3 PRACTICAL COMPLETION
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3.1 The Developer's Architect shall notify the Tenant's Project Manager
not less than 14 Business Days before the date on which the Developer's
Architect anticipates that he will issue the Certificate of Practical Completion
pursuant to the Building Contract in respect of the Building and shall invite
the Tenant's Project Manager to arrange a joint inspection with the Developer's
Architect of the Building not less than 10 Business Days prior to the date that
it is anticipated the Certificate of Practical Completion will issue. The
Tenant's Project Manager shall notify the Developer's Architect in writing
within five Business Days of such inspection of any matters which in the view of
the Tenant's Project Manager should have attention prior to the issue of the
Certificate of Practical Completion and the Developer's Architect shall take due
regard of same but nothing herein shall limit the right of the Developer's
Architect to issue the Certificate of Practical Completion.
3.2 If the Tenant's Project Manager shall object to the issue of the
Certificate of Practical Completion he shall do so in writing to the Developer's
Architect such notice to be received by the Developer's Architect within seven
days after the date of the issue of the Certificate of Practical Completion
specifying his objections which shall not include Snag Items.
3.3 In the event of a dispute between the Developer's Architect and the
Tenant's Project Manager as to whether the Certificate of Practical Completion
should have issued having regard to the objections of the Tenant's Project
Manager then the items in dispute shall be referred forthwith to the Independent
Architect who shall be required to give a decision within 7 Business Days of
being requested to resolve such dispute. The Independent Architect shall act as
an expert and not as an Arbitrator and his fees shall be borne by the
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party against whom he holds. Where the Independent Architect finds in favour of
the Tenant and that the Certificate of Practical Completion should not have
issued, the Developer shall procure that the items of works identified by the
Independent Architect required to be completed to achieve Practical Completion
shall be remedied forthwith and the provisions of clauses 3.1 to 3.3 hereof
shall be repeated.
3.4 On referral of such dispute referred to in clause 3.3 to the
Independent Architect he shall be entitled to determine (inter alia) whether the
decision of the Developer's Architect to issue the Certificate of Practical
Completion on the date he did so was correct, whether the Certificate of
Practical Completion should have issued or should issue on a date subsequent to
that date, and whether, and if so what, items of the Building Works or what
defects are or were required to be undertaken and /or repaired so as to bring
the Building Works to practical completion and to determine when the Developer
has carried out and completed and / or repaired (or procured the carrying out
and completion and / or repair) of the said items of the Building Works and / or
the repairs or defects as determined by him
3.5 The Developer will procure the delivery to the Tenant of a certified
copy of the Certificate of Practical Completion as soon as practicable after the
same is issued to the Contractor and in any event within 3 days of its issue.
4 MEASUREMENT OF BUILDING
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4.1 The Developer shall notify the Landlord and the Tenant when the
Building has reached a sufficient stage of completion to permit measurement of
the Net Lettable Area, whereupon the Landlord and the Tenant shall jointly
arrange for the Net Lettable Area to be measured in accordance with the
Measuring Code Provided that in case of any conflict between the Measurement
Drawings and the Measuring Code then the Measurement Drawings shall prevail.
4.2 For the purpose of clarity the Landlord and Tenant agree that the Net
Lettable Area of the Building for the calculation of the square footage upon
which the rent shall be payable is to be the area within the red lines on the
Measurement Drawings but excluding the areas which are hatched with diagonal red
lines (being Landlord's area and first floor double height void) and the areas
coloured solid red (being solid elements such as columns) all other areas within
the red lines on the Measurement Drawings being deemed to be Net Lettable Areas
for the purposes of this Agreement.
4.3 If the Landlord and the Tenant are unable to agree the Net Lettable
Area within 14 days of the joint measurement then measurement thereof shall be
referred to the Independent Chartered Surveyor for determination as follows:-
4.3.1 The Independent Chartered Surveyor shall act as an Expert and
shall afford to the Landlord and the Tenant a reasonable opportunity of stating
(whether in writing or otherwise as may be decided by him/her within such time
as he/she may stipulate in that behalf ) reasons in support of such contentions
as each party may wish to make relative to the matter or matters under
consideration;
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4.3.2 The determination of the Independent Chartered Surveyor shall
be binding on the parties;
4.3.3 The costs of the Independent Chartered Surveyor shall be borne
by the party against whom he/she holds.
4.4 The Net Lettable Area as agreed or determined in accordance with this
clause 4 shall be inserted in clause 1.3.6 of the Fourth Schedule to the Lease
which the Tenant and the Guarantor hereby irrevocably authorise the Landlord's
Solicitor to do in the Lease and counterpart thereof.
5 DESIGNATION
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5.1 For the purposes of this clause 5 the following additional expressions
shall have the following meanings:-
"Legislation" includes the enactment of legislation, any statutory
consolidation, amendments, modifications or re-enactment of any legislation for
the time being in force and all regulations, statutory instruments, rules,
notices, directions, consents, orders and other provisions made thereunder and
any conditions attaching thereto.
"Double Rent Deduction" means the right of the Tenant to claim a double
rent allowance within the meaning of Section 324 or Section 370 of the Taxes
Consolidation Xxx 0000 in respect of the entire amount of the rent reserved by
clause 3.1 of the Lease (but excluding the proportion thereof attributable to
the Car Spaces) for a period of 10 years from the date on which the Lease is
granted.
"The Rates Exemption" means the relief for the Tenant against the payment
of the entire amount of the municipal rates payable in respect of the Building
to the authority lawfully entitled to charge and collect the same for a period
of 10 local financial years next following the date on which the Lease is
granted in terms similar to that contained in Section 5 (a) Statutory Instrument
No.341 of 1986 subject always to the phasing of the extent of the remission in
the manner set out in the Third Schedule to Statutory Instrument No.365 of 1995
5.2.1 In the event that at the Date of Practical Completion
Legislation is passed and in force which provides for (or has the same effect
as) the right for the Tenant to claim a Double Rent Deduction (without the
benefit of the Rates Exemption) then, in determining the rent to be payable
under the Lease, the provisions of clause 6.1 shall apply.
5.2.2 In the event that at the Date of Practical Completion
Legislation is passed and in force which provides for (or has the same effect
as) the right for the Tenant to claim a Double Rent Deduction (with the benefit
of the Rates Exemption) then in determining the rent to be payable under the
Lease the provisions of clause 6.2 shall apply.
5.2.3 Where at the Date of Practical Completion Legislation has not
been passed and in force which provides for (or has the same effect as) the
right for the Tenant to
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claim a Double Rent Deduction (with or without the benefit of the Rates
Exemption) then, (subject to the provisions of clause 5.3) in determining the
rent to be payable under the Lease, the provisions of clause 6.3 shall apply.
5.3 The parties agree that where a Ministerial or other government
statement is made in an official capacity prior to the Date of Practical
Completion and which
5.3.1 in the case of the Double Rent Deduction, is confirmed by
Legislation which is passed and in force within 3 months of the Date of
Practical Completion which entitles the Tenant to a Double Rent Deduction and
5.3.2 in the case of the Rates Exemption, is confirmed by Legislation
which is passed and in force prior to the receipt by the Tenant of a bona fide
demand for municipal rates by the authority lawfully entitled to charge and
collect the same which entitles the Tenant to the Rates Exemption.
then the rent in the Lease shall initially be calculated by reference to the
provisions of clause 6.3 and the Landlord the Tenant and the Guarantor shall
forthwith upon the Legislation being passed (or on each occasion where the
Double Rent Deduction and the Rates Exemption is dealt with in separate
Legislation) enter into a Memorandum supplemental to the Lease recording the
adjusted yearly rent by reference to clause 6.1 or clause 6.2 (whichever shall
be applicable) and the amendment of the Fourth Schedule to the Lease as provided
for in clause 6 which adjustment shall take effect from the date which relevant
Legislation comes into force, unless the Legislation shall allow for the Tenant
to claim the Double Rent Deduction or the Rates Exemption (as the case may be)
in respect of any increase in the rent retrospective from the date on which the
Legislation comes into force to the commencement of the term of the Lease.
5.4 The Tenant acknowledges that in the event that the Tenant is not
entitled to the Double Rent Deduction and / or the Rates Exemption as a
consequence of
5.4.1 the failure of the Tenant to occupy the entire of the Building
for the purpose of its trade or profession or;
5.4.2 the act, omission or default of the Tenant (which shall not
include for the purposes of this clause any provision within the Legislation
which precludes the Tenant from claiming the Double Rent Deduction and/or the
Rates Exemption)
then for the purposes of this clause 5 the Tenant shall be deemed to be entitled
to the Double Rent Deduction and / or the Rates Exemption (as the case may be
where the same is provided for in the Legislation within the time periods
referred to in this clause 5).
5.5 Any dispute between the Landlord and the Tenant with regard to
this clause 5 shall be referred to a single arbitrator (who shall be a qualified
tax practitioner with one of the six largest accountancy firms in Ireland) to be
agreed by the parties or failing such agreement to be appointed by the President
for the time being of the Law Society of Ireland
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and such reference shall be deemed to be a submission to arbitration in
accordance with the Arbitration Acts 1954 to 1998 or any statutory modifications
or re-enactment thereof for the time being in force.
6 RENT CALCULATION
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6.1 If the provisions of Clause 5.2.1 apply (whether on the date of
Practical Completion or thereafter pursuant to the provisions of clause 5.3 or
are deemed to apply pursuant to clause 5.4) the Initial Rent to be reserved by
clause 3.1 of the Lease (for the first five years thereof subject to the final
paragraph of clause 5.3) shall be the aggregate of (i) (Pounds)25 per annum per
sq. ft. of the Net Lettable Area of the Building determined in accordance with
clause 4 hereof and (ii) (Pounds)1,500 for each of the 33 Car Spaces.
6.2 If the provisions of clause 5.2.2 apply (whether on the date of
Practical Completion or thereafter pursuant to the provisions of clause 5.3 or
are deemed to apply pursuant to clause 5.4) then the Initial Rent to be reserved
by clause 3.1 of the Lease (for the first five years thereof subject to the
final paragraph of clause 5.3) shall be the aggregate of (i) (Pounds)27.50 per
annum per sq. ft. of the Net Lettable Area of the Building determined in
accordance with clause 4 hereof and (ii) (Pounds)1,500 for each of the 33 Car
Spaces.
6.3 If the provisions of clause 5.2.3 apply the Initial Rent to be
reserved by clause 3.1 of the Lease (for the first five years thereof) shall be
the aggregate of (i) (Pounds)22 per annum per sq. ft of the Net Lettable Area of
the Building determined in accordance with clause 4 hereof and (ii)
(Pounds)1,500 for each of the 33 Car Spaces.
6.4 The Tenant hereby irrevocably authorises the Landlord's Solicitor to
insert the relevant amount of the Initial Rent when so calculated in accordance
with the provisions of clause 6.1 or 6.2 or 6.3 (whichever shall be applicable)
into the Lease and the counterpart thereof.
6.5 In the event of the Net Lettable Area of the Building not having been
agreed by the Date of Practical Completion the Tenant shall pay rent based on a
deemed Net Lettable Area of 39,270 Sq. Ft. at the rate per square foot
applicable pursuant to clause 6.1 or 6.2 or 6.3 (whichever shall be applicable
at the Date of Practical Completion) together with the sum of IR(Pounds)1,500
for each of the 33 Car Spaces and within 10 Business Days of agreement on or
determination of the Net Lettable Area there shall be paid to the Tenant (or
vice versa) any excess or underpayment (as the case may be) in respect of the
period for which rent has been paid based on the deemed Net Lettable Area. The
rent in the Lease shall be initially calculated by reference to the deemed Net
Lettable Area and the Lessor and the Tenant shall enter into a memorandum
supplemental to the Lease recording the adjusted yearly rent calculated by
reference to the Net Lettable Area agreed or determined in accordance with the
provisions of this Agreement.
6.6 Where the provisions of clause 5.2.1 apply (whether on the Date of
Practical Completion or thereafter in accordance with the provisions of clause
5.3 or are deemed to
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apply pursuant to clause 5.4) the Fourth Schedule to the Lease shall be deleted
and there shall be substituted therefore the Schedule annexed hereto as
Appendix 8.
6.7 Where the provisions of clause 5.2.2 apply (whether on the Date of
Practical Completion or thereafter in accordance with the provisions of clause
5.3 or are deemed to apply pursuant to clause 5.4) the Fourth Schedule to the
Lease shall be deleted and there shall be substituted therefore the Schedule
annexed hereto as Appendix 9.
6.8 It is agreed that the Landlord shall make a contribution to the
Tenant's fitting out of the Building in the sum of IR(Pounds)210,000 (exclusive
of VAT). Payment shall be made by the Landlord to the Tenant together with any
VAT eligible thereon within 14 days of the receipt by the Landlord of a
certified copy of the certificate of practical completion issued pursuant to the
contract for the Tenant's fitout of the Building together with a valid VAT
invoice addressed to the Landlord in respect of the payment. It is hereby
agreed and declared that for the purposes of review of the rent under the Lease
and notwithstanding the provisions of the Lease the making of this payment shall
be disregarded and the Tenant shall be deemed to have expended this money from
its own funds.
7 TENANT'S FIT OUT
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7.1 The Tenant shall furnish as soon as possible to the Landlord for
approval plans, drawings, specifications and such other details as the Landlord
may reasonably request in relation to all fitting out works which the Tenant may
propose to carry out and install in the Building ("the Fit-Out") which approval
the Landlord shall not unreasonably withhold or delay.
7.2 The Developer will use all reasonable endeavours to procure that the
Contractor will complete the construction of the Building in accordance with the
Specification and in accordance with the dates shown in the Building Programme.
The Contractual Completion Date will be extended where the Contractor is
delayed in achieving Practical Completion on account of any of the items
specified in clause 30 (as amended by Special Condition 14) of the Building
Contract PROVIDED ALWAYS that the Developer shall use all reasonable endeavours
to procure that no extensions are certified under clause 30(b), (f), (i) and
(j). In the event that the Date of Practical Completion is not achieved ,or ,
where the Tenant avails of the facilities for access prior to Practical
Completion in accordance with this clause 7, the Building Works have not reached
a stage so as to enable the Tenant to commence the Fit Out by the 31st October
1999 (which date shall be extended by the equivalent amount of any extension
certified by the Developer's Architect under clause 30(e) (as amended by special
condition 14) of the Building Contract) the Tenant, provided the Fit Out has
not commenced may terminate this Agreement on giving 7 days prior notice in
writing to the Developer whereupon on the expiry of such notice this Agreement
shall determine and the Tenant's interest and rights in relation to the Building
shall cease. For the avoidance of doubt it is agreed that (i) the certificate
of the Developer's Architect that the Building Works have reached a stage so as
to be ready to receive the Tenant's Fit Out shall be
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conclusive evidence to that effect and (ii) once the Tenant has commenced the
Fit Out the right to determine pursuant to this clause 7.2 shall automatically
lapse.
7.3 Subject to the Landlord's prior approval of the Fit-Out the Developer
shall co-operate with and facilitate the Tenant insofar as is reasonably
practicable in gaining access to the Building prior to the Date of Practical
Completion in accordance with the following provisions of this clause.
7.4 Such access shall be subject to the provisions of clause 32 of the
Building Contract (inserted by Special Condition 16 thereof) which shall be
observed and complied with by the parties hereto insofar as such provisions
respectively relate to them.
7.5 Prior to commencing the Fit Out the Tenant shall agree with the
Landlord and the Developer's Architect the state of progress of the Building
Works and the date upon which the Developer's Architect then expects to issue
the Certificate of Practical Completion. Provided such date is on or prior to
the 30th June 1999, if the Developer's Architect is subsequently not in a
position to issue the Certificate of Practical Completion on or prior to the
30th June 1999, the 30th June 1999 shall (subject to the provisions of clause
7.6.2) be the Deemed Date of Practical Completion ("the Deemed Date of Practical
Completion"). Where the provisions of this clause 7 apply the Tenant shall pay
rent with effect as and from the earlier of:
7.5.1 the Deemed Date of Practical Completion and,
7.5.2 the Date of Practical Completion which for the purposes of this
clause 7.5 shall mean Practical Completion of the Building Works to include the
elements of the Fit Out to be carried out by the Contractor but excluding those
elements of the Fit Out in respect of partitioning and furniture.
7.6 The Landlord agrees that in the event that
7.6.1 prior to commencing the Fit Out there has been certified by the
Developer's Architect pursuant to clause 30 (as amended by special condition 14)
of the Building Contract extensions of time, which extensions when added to the
Contractual Completion Date provide for a Date of Practical Completion later
than the 30th June 1999, the Deemed Date of Practical Completion shall be
extended to such later date or,
7.6.2 if after commencing the Fit Out there is certified by the
Developer's Architect pursuant to clause 30(a), (e) or (j) (as amended by
special condition 14) of the Building Contract extensions of time which
extensions are certified by the Developer's Architect as wholly attributable to
the Specification and which have not been caused in whole or in part by the Fit
Out such extensions shall be added to the Contractual Completion Date. Where any
such extensions are certified by the Developers Architect as partly attributable
to the Specification and partly attributable to the Fit Out (and the part
attributable to the Specification has not been caused directly or indirectly by
the Fit Out) such extensions certified as attributable to the Specification
shall be added to the Contractual Completion
-13-
Date. Where such extensions when added to the Contractual Completion Date give
rise to a Practical Completion Date of later than the 30th June 1999 the Deemed
Date of Practical Completion shall be extended to such later date.
7.6.3 if a dispute arises between the parties as to any extension to
be allowed to the Deemed Date of Practical Completion in accordance with clause
7.6.2 which the parties are unable to resolve within 14 days then the dispute
shall be referred forthwith to the Independent Architect who shall be requested
to give a decision within a further 14 business days of the reference to him.
The Independent Architect shall act as an expert and not as an Arbitrator and
his fees shall be borne by the party against whom he holds.
7.6.4 pending the determination of any dispute pursuant to clause
7.6.3 the Tenant shall pay rent with effect as and from the Deemed Date of
Practical Completion and upon such determination there shall be paid to the
Tenant (or vice versa) any excess or underpayment (as the case may be) in
respect of the period for which rent has been paid.
7.7 The Tenant will carry out or will procure that the Fit-Out is carried
out:-
7.7.1 In a good and workmanlike manner and in accordance with good
building practice;
7.7.2 With good and suitable materials;
7.7.3 In accordance with the provisions of clause 4.25 of the Lease
(relating to Planning Acts and the Building Control Act) as if the same were
fully set out herein;
7.7.4 In such manner as to avoid any obstruction of the Contractor or
interruption of the Building Works; and
7.7.5 Without using any materials or substances for the time being
not recommended by the relevant current Irish Standards And Codes of Practice
(and insofar as there are no such Irish Standards And Codes of Practice, British
Standards And Codes of Practice will apply) as being of deleterious,
unsatisfactory or unsuitable quality.
7.8 Upon completion of the Fit-Out the Tenant shall furnish to the
Landlord;
7.8.1 Opinions of a duly qualified Architect or Engineer in the forms
published by the Royal Institute of the Architects of Ireland (without
additional qualification) as to -
(a) compliance with any Grant of Planning Permission required
for the Fit-Out or (as the case may be) that the Fit-Out comprises exempted
development within the meaning of the Planning Acts, and,
-14-
(b) compliance with Building Regulations including copies of
any confirmation relied upon in such Opinion and Fire Safety Certificate(s) and
Commencement Notice(s) relating thereto.
7.8.2 An undertaking to provide to the Landlord within sixty days of
completion of the Fit-Out a certified copy of the Safety File for the Fit Out
the original of which the Tenant covenants to furnish to the Landlord upon the
expiration or earlier termination of the Lease
7.8.3 Collateral Warranties in favour of the Landlord from the
Tenant's Contractor, Architect, Mechanical and Electrical Engineer and Sub-
Contractor with a design responsibility, in the form of the Collateral
Warranties (or with such amendments thereto as the Landlord shall approve such
approval not to be unreasonably withheld) the party providing the Warranties to
have adequate professional indemnity insurance and to be members of their
respective professional institutes (where appropriate) PROVIDED HOWEVER that the
Landlord shall not be entitled to receive a collateral warranty from any of the
parties engaged by the Tenant for the Fit Out (with the exception of the party
or parties engaged for the design and installation of the air conditioning and
the mechanical and electrical services, where the requirement shall be
absolute) where, having regard to the extent and nature of the services to be
provided by such party, it is not reasonable for such a warranty to be provided.
In the event of a dispute between the Landlord and the Tenant as to whether a
collateral warranty in favour of the Landlord should issue, having regard to the
objection of the Tenant, such dispute shall be referred forthwith to the
Independent Architect who shall be required to give a decision within 7 business
days of being requested to resolve such dispute. The Independent Architect
shall act as an expert and not as an arbitrator and his fees shall be borne by
the party against whom he holds.
7.9 The Tenant's Project Manager shall liaise with the Developer and the
Developer's Architect at the earliest possible date regarding a method and
programme for the Fit-Out, the Contractors, any Sub-Contractors and Design Team
proposed to be engaged and shall furnish details of any (if any) elements of the
Building Works to the Building which it may wish to be postponed in order to
avoid unnecessary removal and later replacement of such elements in which event
the following provisions shall apply:-
7.9.1 Such elements as may be postponed shall be totally disregarded
for the purposes of the Certificate of Practical Completion;
7.9.2 Any additional sums payable by the Developer to the Contractor
by reason of the postponement of any elements of the Buildings Works shall be
paid by the Tenant to the Developer on demand, in which regard the amount
thereof as determined in accordance with the provisions of the Building Contract
shall be conclusive and binding upon the Developer and the Tenant;
7.9.3 The Tenant shall also pay to the Developer on demand the full
amount of all reasonable and vouched professional fees and other expenses which
the Developer may incur by reason of any such postponement as aforesaid.
-15-
7.10 The Tenant shall and hereby covenants to indemnify the Developer and
the Landlord against all actions, claims and demands that may be made against
and all losses that may be suffered or incurred by either of them by reason of
commencement of the Fit-Out prior to the Date of Practical Completion and
without prejudice to and in addition to the provisions in this regard which are
contained in the Building Contract shall furnish to the Developer and to the
Landlord upon request evidence reasonably satisfactory to them that the Tenant
and all Contractors engaged by it for the purpose of the Fit-Out have in force
all such insurance cover as may be necessary or as either the Developer or the
Landlord may reasonably require in relation thereto, that the interest of the
Developer and of the Landlord is noted thereon where appropriate and that such
cover remains in force for the duration of the Fit-Out. The Tenant shall not
have any liability hereunder for consequential loss save such consequential loss
(if any) as is reasonably forseeable.
7.11 The Tenant shall and hereby covenants with the Landlord that upon the
expiration or earlier termination of the Lease the Tenant will if so required by
the Landlord, remove such of the Fit Out as the Landlord may require to be
removed and will reinstate the Building in accordance with the obligations on
the Tenant's part contained in clause 4.9 of the Lease.
7.12 The Tenant shall pay on demand (i) the reasonable and proper costs
incurred by the Landlord and (ii) the Developer's Design Team fees (to be
charged on an hourly basis at an hourly rate commensurate with the rate
generally chargeable in the market for the services involved), in connection
with the approval and monitoring of the Fit Out.
8 GRANT OF LEASE
--------------
8.1 The Tenant and the Guarantor shall execute the Lease the Break Option
Deed and the Side Letters in duplicate within twenty one days of the date on
which the Landlord's solicitors furnish engrossments thereof to the Tenant's
solicitors and same shall be held by the Landlords's Solicitors in escrow
pending the Date of Practical Completion and shall be executed by the Landlord
and the Landlord shall procure that GC Plaza Management Limited executes the
same prior to the Date of Practical Completion. The Lease, Break Option Deed
and the Side Letters shall be deemed to be granted on the Date of Practical
Completion.
8.2 The Tenant shall become liable to comply with all the covenants on the
part of the Tenant and conditions contained in the Lease from the Date of
Practical Completion.
8.3 The Landlord shall subject to receipt of the relevant stamp duty stamp
the original and counterpart of the Lease Break Option Deed and Side Letters and
return the original thereof to the Tenant as soon as practicable duly executed
by the Landlord.
8.4 Without prejudice to the provisions of Clause 8.2 hereof the Term
Commencement Date in the Lease shall be the Date of Practical Completion as
certified by the Developer's Architect (or as determined by the Independent
Architect if appointed) or if applicable the Deemed Date of Practical Completion
and the Tenant hereby irrevocably
-16-
authorises the Landlord to insert the relevant dates in the relevant parts of
the Lease and counterpart thereof.
8.5 The Landlord shall procure that the Common Areas Deed to be entered
into between Dalehaven Investments Limited, the Landlord, Oaktower Investments
Limited, Xxxxxxx X. Xxxxx and GC Plaza Management Limited is executed and
delivered prior to the grant of the Lease.
9 PAYMENTS
--------
9.1 Upon the Date of Practical Completion as certified, or if applicable
the Deemed Date of Practical Completion the Tenant shall pay to the Landlord (1)
an amount equal to one quarter of the annual rent (or deemed initial annual rent
pursuant to clause 6 ) payable in respect of the Building, (2) Value Added Tax
payable on the granting of the Lease (if eligible) PROVIDED ALWAYS that the
---------------
Landlord shall co-operate with the Tenant in order to assist the Tenant to avail
of the VAT Form 4A procedure on the grant of the Lease, (3) Stamp Duty payable
on foot of the Lease and Counterpart and (4) a payment on account the first
year's insurance premium together with one quarter's service charge payable by
the Tenant under the Lease as notified by the Landlord to the Tenant.
10 NO ASSIGNMENT
-------------
10.1 The Tenant shall not assign, underlet, mortgage, charge, share, part
with or otherwise in any way whatsoever (either directly or indirectly) deal
with its/his interest under this Agreement or any part thereof prior to the Date
of Practical Completion (or if later the date of completion of the Lease).
10.2 The Developer shall not assign its interest under this Agreement or
any part thereof prior to the Date of Practical Completion without the prior
written consent of the Tenant which shall not be unreasonably withheld or
delayed PROVIDED ALWAYS the Tenant agrees that its consent shall not be required
to an assignment to Xxxx Executor & Trustee Co. Limited, whether before or after
the Date of Practical Completion.
10.3 The Landlord shall procure that any leases of the Building which are
granted prior to or contemporaneously with the grant of the Lease (which are
intended to be superior to the Lease) shall not contain any covenants,
easements, rights or restrictions more onerous or restrictive than those
contained in the Lease and shall procure that any such Lessees or any other
parties having any interest in the Building at the date of the grant of the
Lease shall if necessary provide their consent to the grant of the Lease.
11 TITLE
-----
The title to be shown by the Landlord shall consist of the copy documents
referred to in the Schedule contained at Appendix 10 hereto.
-17-
12 DEFECTS
-------
The Developer undertakes to procure the making good of all defects referred
to at Clause 31 of the Building Contract which arise in the Building during the
Defects Liability Period. In this respect the Tenant shall furnish the
Developer within 10 months of the Date of Practical Completion of the Building a
schedule of defects, shrinkages and other faults which are not in accordance
with the Building Contract and the Tenant shall also notify to the Developer any
further defects, shrinkages or other faults which appear in the Building during
the Defects Liability Period. The Developer shall procure all such defects,
shrinkages or other faults are made good and remedied as soon as possible (but
without material interference with the Tenant) to the reasonable satisfaction of
the Tenant's Project Manager and if not made good and remedied as aforesaid
within a reasonable period, the Tenant shall have the right to serve a notice in
writing on the Developer indicating that if the Developer fails to commence the
remedy of any such defects, shrinkages or other faults within 10 days of receipt
of the said notice, the Tenant shall have the right to remedy the same and to
recover the costs thereof from the Developer.
The Developer undertakes not to release to the Contractor the Retention
Fund retained by the Developer against the Contractor following the Date of
Practical Completion of the Building until the said defects, shrinkages or other
faults have been remedied in accordance with the provisions of this agreement.
13 TERMINATION
-----------
13.1 For the purposes of this clause 13 an Event of Default shall occur
if:
13.1.1 The Tenant does not pay any monies within twenty one days
after they become due or if later within 21 days after same has been demanded in
accordance with this Agreement for Lease;
13.1.2 The Tenant fails to perform and observe the obligations on
its part contained in this Agreement for Lease in any material respect and the
Tenant has not done so after receipt of thirty days notice or such extended
notice period as shall be reasonable from the Developer specifying the
particular breach complained of and requiring the Tenant to remedy the breach
and allowing reasonable time for the Tenant to do so; or
13.1.3 The Tenant enters into liquidation (except voluntary
liquidation for the purpose of amalgamation or reconstruction on terms approved
of by the Landlord, such approval not to be unreasonably withheld or delayed) or
has a Receiver or Examiner appointed to its undertaking or assets.
13.2 Upon the occurrence of an Event of Default the Developer in addition
to any other rights and remedies may rescind this Agreement for Lease by giving
notice to the Tenant to that effect.
-18-
13.3 In the event of the Developer or the Landlord failing to perform and
observe the obligations respectively on its part contained in this Agreement for
Lease in any material respect following receipt of 30 days notice (or such
extended notice period as shall be reasonable to be determined in the event of a
dispute between the Developer and the Tenant by the Independent Architect, who
shall be required to give a decision within 7 Business Day of being requested to
resolve such dispute and who shall act as an expert and not as an arbitrator and
whose fees shall be borne by the party against whom he holds) from the Tenant
specifying the particular breach complained of and requiring the Developer or
the Landlord as the case may be to remedy the breach and allowing reasonable
time for the Developer or the Landlord so to do or in the event of the Developer
or the Landlord going into receivership or having a Liquidator or Examiner
appointed and the Receiver /Liquidator / Examiner not affirming the obligations
of the Developer or the Landlord as the case may be herein within 28 days
thereafter the Tenant may rescind this Agreement upon giving to the Developer
notice to that effect but without prejudice to any rights of action or remedies
which the Tenant may have on account of any such breach.
13.4 Upon such recission:-
13.4.1 The Tenant's interests and rights in relation to the Building
shall cease and determine and all fixtures (other than tenants or trade
fixtures) in it shall be retained by the Developer) and the Tenant shall remove
any Tenant's or trade fixtures and fittings in the Building;
13.4.2 The parties hereto will retain all rights and remedies against
the other for any antecedent breach, non-observance or non-performance of its
obligations under this Agreement for Lease;
14 GUARANTEE
---------
14.1 The Guarantor hereby covenants with the Developer and the Landlord
that the Tenant shall perform and observe the covenants and conditions on its
part herein contained and to accept the grant of the Lease as hereinbefore
provided failing which the Guarantor shall itself accept the grant of the Lease
as if it had been named as Tenant therein.
14.2 The Guarantor further covenants with the Developer and the Landlord
that it shall join in and execute the Lease as Guarantor for the performance and
observance by the Tenant of the obligations on its part contained in the Lease
in accordance with the terms thereof.
14.3 The Guarantor shall on the date hereof and again on the date of
completion of the Lease deliver to the Landlord in a form and from a counsel
reasonably acceptable to the Landlord an opinion confirming that the Guarantor
is validly constituted and has the necessary corporate power to enter this
Agreement and that the obligations on the part of the Guarantor herein and as
provided for in the Lease are legally binding and enforceable.
-19-
15 CONFIDENTIALITY
---------------
15.1 Each party shall at all times use all reasonable endeavours to keep
confidential (and to procure that its respective employees and agents shall keep
confidential) the terms of this Agreement and any confidential information which
it or they may acquire in relation to the Development or to the business or
affairs of the other party or any of its subsidiary or associated companies and
shall not use or disclose such information except with the consent of the other
party or in compliance with the order of a court of competent jurisdiction
15.2 Neither party shall issue or release and shall procure that their
respective employees and agents shall not issue or release to any newspaper or
other form of media any statement or information relating to this Agreement
save only such press release or statement in such form as made previously have
been agreed by and between the parties.
16 AGREEMENT TO CONTINUE
---------------------
This Agreement shall continue in full force and effect after the grant of
the Lease and the Date of Practical Completion in insofar as anything then
remains outstanding hereunder on the part of any of the parties hereto.
17 NOTICES
-- -------
17.1 Any notice under this Agreement shall be effectively given if sent by
post or delivered to the intended recipient or its Solicitors at its, his or
their last known address. Where sent by post the notice shall be deemed to be
served on the second day after posting.
17.2 Where the last day for taking any step would but for this provision
be Christmas Day, Good Friday, a Saturday or Sunday or a Public Holiday such
last day shall be the next following working day instead.
18 JURISDICTION
------------
This Agreement shall be construed in accordance with the Laws of Ireland.
-20-
IN WITNESS whereof the parties hereto have either caused their Common Seals
----------
to be affixed hereto or have signed or caused to have signed on this Agreement
on their behalf the day and year first herein written.
PRESENT when the Common Seal
-------
of THE LANDLORD was affixed
------------
hereto:
/s/ Xxx Xxxxx
------------------------------
Director
/s/ Xxxxx Xxxxx (XX Xxxxx)
------------------------------
Director
PRESENT when the Common Seal
-------
of THE DEVELOPER was affixed
-------------
hereto:
/s/ Xxx Xxxxx
------------------------------
Director
/s/ Xxxxx Xxxxx
------------------------------
Director
PRESENT when the Common Seal
-------
of THE TENANT was affixed
----------
hereto:
/s/ Xxxxxx Xxxx Xxxxxx
-------------------------------------
Xxxxxx Xxxx Xxxxxx, Managing Director
-21-
PRESENT when the Common Seal
-------
of THE GUARANTOR was affixed
-------------
hereto:
/s/ Xxxxxx Xxxx Xxxxxx
--------------------------------------
Xxxxxx Xxxx Xxxxxx,
Xx. Vice President World Wide Operations
/s/ Xxxxxx Xxxxx
--------------------------------------
Chairman of the Board, Chief Executive
Officer and President
-22-
APPENDIX 1
THE LEASE, BREAK OPTION DEED AND SIDE LETTERS
Dated: , 199
(1) Landlord: Norwell Investments Limited
(2) Tenant: Visio International Limited
(3) Guarantor: Visio Corporation
(4) Management Company: GC Plaza Management Limited
LEASE
- of
BLOCK 1
GRAND CANAL PLAZA
including use of 33 car spaces
Term Commences: day of , 199
Length of Term: 25 years
Rent Reviews: Every Five Years
Xxxxxx Xxx
Xxxxxx Xxx Xxxxxxxx
Xxxxxxxxx Xxxxxxx
XXXXXX 0
CONTENTS
1 DEFINITIONS........................................ 1
-----------
2 INTERPRETATION..................................... 5
--------------
3 DEMISE AND RENTS................................... 6
----------------
4 TENANT'S COVENANTS................................. 7
------------------
4.1 Rents........................................ 7
-----
4.2 Service Charge............................... 7
--------------
4.3 Interest on arrears.......................... 8
-------------------
4.4 Outgoings.................................... 8
---------
4.5 Repairs...................................... 9
-------
4.6 External Decorations......................... 9
--------------------
4.7 Internal decorations......................... 10
--------------------
4.8 Cleaning..................................... 10
--------
4.9 Yield up..................................... 10
--------
4.10 Rights of entry by Landlord.................. 11
---------------------------
4.11 To Comply with Notices....................... 11
----------------------
4.12 Dangerous materials and use of machinery..... 11
----------------------------------------
4.13 Overloading floors and services.............. 12
-------------------------------
4.14 Conduits..................................... 12
--------
4.15 Prohibited users............................. 12
----------------
4.16 User......................................... 13
----
4.17 Nuisance..................................... 13
--------
4.18 Alterations.................................. 13
-----------
4.19 Signs and advertisements..................... 14
------------------------
4.20 Alienation................................... 14
----------
4.21 Registration of dispositions................. 16
----------------------------
4.22 Disclosure of information.................... 17
-------------------------
4.23 Landlord's costs............................. 17
----------------
4.24 Statutory requirements....................... 18
----------------------
4.25 Planning Acts and the Building Control Act... 18
------------------------------------------
4.26 Statutory notices............................ 19
-----------------
4.27 Fire and safety precautions and equipment.... 20
-----------------------------------------
4.28 Encroachments and easements.................. 20
---------------------------
4.29 Reletting notices............................ 20
-----------------
4.30 Indemnity.................................... 20
---------
4.31 Stamp Duty and Value Added Tax............... 21
------------------------------
5 LANDLORD'S COVENANTS................................ 21
5.1 Quiet Enjoyment.............................. 21
---------------
6 INSURANCE........................................... 21
---------
6.1 Landlord to insure............................ 21
------------------
6.2 Landlord to produce evidence of insurance..... 22
-----------------------------------------
6.3 Destruction of the demised premises.......... 23
-----------------------------------
6.4 Where reinstatement is prevented............. 23
--------------------------------
6.5 Cesser of rent and service charge............ 24
---------------------------------
6.6 Insurance becoming void...................... 24
-----------------------
6.7 Notice by Tenant and Landlord................ 24
-----------------------------
- i -
6.8 Superior Lease and Common Areas Deed......... 24
------------------------------------
6.9 Safety File.................................. 25
-----------
7 MANAGEMENT COMPANY COVENANTS....................... 25
----------------------------
7.1 Services..................................... 25
--------
7.2 Common Areas Deed............................ 25
-----------------
8 PROVISOS........................................... 25
--------
8.1 Forfeiture................................... 26
----------
8.2 Close common areas........................... 26
------------------
8.3 Rules and regulations........................ 27
---------------------
8.4 Agents....................................... 27
------
8.5 Stoppage of Services......................... 27
--------------------
8.6 Failure of Services.......................... 27
-------------------
8.7 Cesser of Services........................... 28
------------------
8.8 Costs Recovered.............................. 28
---------------
8.9 No Implied easements......................... 28
--------------------
8.10 Exclusion of warranty as to user............. 28
--------------------------------
8.11 Representations.............................. 29
---------------
8.12 Covenants relating to Adjoining Property..... 29
---------------------------------------------
8.13 Effect of waiver............................. 29
----------------
8.14 Applicable Law............................... 29
--------------
8.15 Notices...................................... 30
-------
9. THE GUARANTOR'S COVENANTS.......................... 30
-------------------------
10. SECTION 45 LAND ACT 1965........................... 30
------------------------
11. FINANCE ACT CERTIFICATES........................... 30
------------------------
12. SECTION 29 COMPANIES ACT, 1990..................... 31
------------------------------
13 SECTION 31 COMPANIES ACT, 1990..................... 31
------------------------------
-ii-
LEASE
THIS LEASE is made the day of , 199 .
BETWEEN
(1) LANDLORD: NORWELL INVESTMENTS LIMITED having its registered office at 0
Xxxxxxxxxxx Xxxxx in the City of Dublin
(2) TENANT: VISIO INTERNATIONAL LIMITED having its registered office at
Fitzwilton House, Wilton Place in the City of Dublin
(3) GUARANTOR: VISIO CORPORATION of 000 Xxxx Xxxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxxxxxxx 00000, XXX
(4) MANAGEMENT COMPANY: GC PLAZA MANAGEMENT LIMITED having its registered
office at 0 Xxxxxxxxxxx Xxxxx in the City of Dublin.
WITNESSETH as follows:
1 DEFINITIONS
-----------
In this Lease, unless the context otherwise requires the following
expressions shall have the following meanings:-
1.1 "The Accountant" means a person being a chartered or certified
----------------
accountant or a firm thereof appointed by the Landlord (excluding an employee of
the Landlord) to perform the functions of the Accountant under this Lease;
1.2 "Adjoining Property" means any land and / or buildings adjoining or
--------------------
neighboring the Demised Premises;
1.3 "Building Control Act" means the Building Control Xxx 0000;
----------------------
1.4 "Car Spaces" mean the car spaces referred to in the Second Schedule
------------
and same shall be included in the definition of "Demised Premises" for the
purpose only of the Fourth Schedule;
1.5 "Common Areas" means those parts of the Plaza which are or may be
--------------
designated or allocated from time to time by the Landlord or the Management
Company for the common use and benefit of the tenants within the Plaza, their
servants, agents, invitees and licensees and the said expression "the Common
Areas" shall include, but without prejudice to the generality of the foregoing
all roads, footpaths, bridges, pedestrian ways, watercourses, lakes, reservoirs,
fountains, landscaped areas and other common areas on the Plaza PROVIDED ALWAYS
---------------
that if the Plaza shall in any way be
-1-
altered by extension or addition or otherwise then the definition of "Common
Areas" shall as and where necessary be modified accordingly in such manner as
the Landlord shall determine.
1.6 Common Areas' Deed means a deed made the day of , 1998
------------------
between Dalehaven Investments Limited (1), Norwell Investments Limited (2),
Oaktower Investments Limited (3), Xxxxxxx X. Xxxxx (4) and GC Plaza Management
Limited (5).
1.7 "Conduits" mean each of the following of whatsoever nature:-
----------
all sewers, drains, pipes, gullies, gutters, ducts, mains, watercourses,
channels, subways, wires, cables, conduits, flues and other transmission or
conducting media and installations of whatsoever nature or kind;
1.8 "Demised Premises" means the premises demised by this Lease and more
------------------
particularly described in the First Schedule PROVIDED ALWAYS that for the
purposes of Clause 6 herein, reference to the Demised Premises shall exclude
(unless otherwise agreed in writing by the Landlord and the Tenant) all
additions, alterations and improvements made to the Demised Premises by the
Tenant;
1.9 "External Decoration Years" mean the year ending 2002 and thereafter
---------------------------
in every subsequent third year of the term;
1.10 "Guarantor" means the party (if any) named as "Guarantor" at the
-----------
commencement of this Lease and, in the case of an individual, includes the
personal representatives of such Guarantor;
1.11 "Initial Rent" means pounds (IR(Pounds) ) per annum.
--------------
1.12 "Insured Risks" mean, subject always to such exclusions, excesses and
---------------
limitations as are normally available and as may be imposed by the Landlord's
insurers for the time being in respect of any or all of the following risks;
fire, xxxxx, xxxxxxx, flood, earthquake, subsidence, lightning, explosion,
impact, aircraft and other aerial devices and articles dropped therefrom, riot,
civil commotion and malicious damage, bursting or overflowing of water tanks,
apparatus or pipes, land slip or land heave and such other risks as the Landlord
may in its absolute discretion from time to time determine;
1.13 "Internal Decoration Years" mean the year ending 2004 and thereafter
---------------------------
in every subsequent fifth year of the Term;
1.14 "Landlord" means the party or parties named as "Landlord" at the
----------
commencement of this Lease, and includes the person for the time being entitled
to the reversion immediately expectant on the determination of the Term;
-2-
1.15 "this Lease" means this Lease and any document which is made
------------
supplemental hereto, or which is entered into pursuant to or in accordance with
the terms hereof;
1.16 "the Management Company" means GC Plaza Management Limited its
------------------------
successors and assigns;
1.17 "the Management Company's Financial Year" means each period of twelve
-----------------------------------------
months ending on the last day of each December or such other month as the
Management Company may from time to time determine;
1.18 "Permitted User" means office use (including use of part of the
----------------
Demised Premises for storage, catering and dining ancillary to office use);
1.19 "the Perpetuity Period" means the period commencing on the date of
-----------------------
this Lease and ending on the expiration of twenty one years from the date of the
death of the last survivor of the issue now living of His Late Britannic Majesty
King Xxxxxx X.
1.20 "Plans" mean Plan No. 1 annexed to this Lease;
-------
1.21 "Planning Acts" mean the Local Government (Planning and Development)
---------------
Acts 1963 to 1994;
1.22 "the Plaza" means the lands, hereditaments and premises situate at
-----------
Grand Canal Plaza, Grand Canal Street in the City of Dublin the present
boundaries of which are shown edged blue on Plan No. 1 annexed hereto and which
expression shall include the said lands as reduced and / or all additions and
extensions to the said lands which are from time to time declared to be excluded
from or form part of the Plaza in accordance with the provisions of the Common
Areas' Deed provided always that the Car Spaces and the access routes to the
Demised Premises and the Car Spaces shall at all times be included in the Plaza;
1.23 "the Plaza Service Charge" means the aggregate of the reasonable and
--------------------------
proper costs and expenses incurred or expended by the Management Company in
maintaining, repairing, renewing and providing services, amenities and
facilities to the Common Areas and the Car Spaces pursuant to the provisions of
the Fifth Schedule hereof;
1.24 "Prescribed Rate" means the rate per centum per month which shall
-----------------
exceed by one half per centum per month the monthly rate of interest for the
time being chargeable under Section 550 of the Income Tax Act 1967 (or such
other monthly rate of interest as may from time to time be chargeable upon
arrears of tax) or if there shall be no such rate at a rate of eighteen per
centum per annum.
1.25 "Public Health Acts" mean the Local Government (Sanitary Services)
--------------------
Act, 1878 to 1964;
-3-
1.26 "Quarterly Xxxx Days" mean 1st day of January, lst day of April, 1st
---------------------
day of July and 1st day of October in every year of the Term.
1.27 "Rent Review Dates" means the first day of the sixth year, the first
-------------------
day of the eleventh year, the first day of the sixteenth year and the first day
of the twenty first year of the Term.
1.28 "Safety Health and Welfare at Work Act" means the Safety Health and
---------------------------------------
Welfare at Work Xxx 0000.
1.29 "Surveyor" means any person appointed by the Landlord (including an
----------
employee of the Landlord and the person appointed by the Landlord to collect the
rents and manage the Building) to perform the function of a surveyor for any
purpose of this Lease but does not include the Surveyor defined in the Fourth
Schedule;
1.30 "Systems" means such form of close circuit television system or other
---------
security systems (if any) which the Landlord or the Management Company may from
time to time at their reasonable discretion provide;
1.31 "Tenant" means the party or parties named as "Tenant" at the
--------
commencement of this Lease and includes the successors in title of the Tenant
and permitted assigns of the Tenant and, in the case of an individual or
individuals his/their personal representatives;
1.32 "Tenant's Proportion" means a due proportion of the Plaza Service
---------------------
Charge equal to the ratio which the net internal floor area of the Demised
Premises bears to the aggregate net internal floor area of the buildings
constructed upon the Plaza (and which is estimated at the date of this Lease to
be 39.37%);
1.33 "Term" means Twenty Five Years from the Term Commencement Date.
------
1.34 "Term Commencement Date" means day of , 199 .
------------------------
1.35 "Utilities" mean the following of whatsoever nature:-
-----------
water, soil, steam, air, gas, electricity; radio, television, telegraphic,
telephonic and other communications, and other services and information
(including any plant, machinery, apparatus and equipment to operate the
same or required to be provided in or for the Plaza as may from time to
time and in the opinion of the Management Company be desirable or
necessary);
1.36 "the 1860 Act" and "the 1881 Act" shall mean respectively the
-------------- --------------
Landlord and Tenant Law Amendment Act, Ireland, 1860 and the Conveyancing Xxx
0000.
-4-
2 INTERPRETATION
--------------
UNLESS there is something in the subject or context inconsistent
therewith:
2.1 where two or more persons are included in the expression "the
Landlord" and / or "the Tenant" and / or "the Guarantor" the covenants
which are expressed to be made by the Landlord and / or the Tenant and
/ or the Guarantor shall be deemed to be made by such persons jointly
and severally;
2.2 words importing persons shall include firms, companies and
corporations and vice versa;
2.3 any covenant by the Tenant not to do any act or thing shall include an
obligation not to permit or suffer such act or thing to be done;
2.4 references to any right of the Landlord to have access to or entry
upon the Demised Premises shall be construed as extending to all
persons authorised by the Landlord, to include the Management Company,
any superior landlord and their and each of their agents and
professional advisers together with the prospective purchasers of any
interest of the Landlord or any superior landlord in the Demised
Premises or in the Adjoining Property, contractors, workmen and
others;
2.5 any reference to a statute or statutes (whether specifically named or
not) or to any sections or sub-sections therein shall include any
amendments or re-enactments thereof for the time being in force and
all Statutory Instruments, orders, notices, regulations, directions,
byelaws, permissions and plans for the time being made, issued or
given thereunder or deriving validity therefrom;
2.6 the titles or headings appearing in this Lease are for reference only
and shall not affect its construction or interpretation;
2.7 wherever in this Lease either party is granted a future interest in
property there shall be deemed to be included in respect of every such
grant a provision requiring that future interest to vest within the
Perpetuity Period;
2.8 any reference to a clause or schedule shall mean a clause or schedule
of this Lease;
2.9 any reference to the masculine gender shall include reference to the
feminine gender and any reference to the neuter gender shall include
the
-5-
masculine and feminine genders and reference to the singular shall
include reference to the plural.
2.10 if any term or provision in this Lease shall be held to be illegal or
unenforceable in whole or in part, such term shall be deemed not to
form part of this Lease but the enforceability of the remainder of
this Lease shall not be affected;
3 DEMISE AND RENTS
----------------
THE Landlord in consideration of the rents herein reserved (including the
increases thereof as hereinafter provided) and the covenants on the part of the
Tenant and the conditions hereinafter contained HEREBY DEMISES unto the Tenant
--------------
the Demised Premises TOGETHER WITH the rights, easements and privileges
-------------
specified in the Second Schedule EXCEPTING AND RESERVING the rights and
-----------------------
easements specified in the Third Schedule SUBJECT TO all rights, easements,
----------
quasi-easements, privileges, covenants, restrictions and stipulations of
whatsoever nature affecting the Demised Premises which have been disclosed to
the Tenant prior to the date of the agreement for the grant of this Lease TO
--
HOLD the Demised Premises unto the Tenant from and including the Term
----
Commencement Date for the Term YIELDING AND PAYING unto the Landlord during the
-------------------
Term:
3.1 yearly and proportionately for any fraction of a year, the Initial
Rent and from and including each Rent Review Date, such yearly rent as
shall become payable under and in accordance with the provisions of
the Fourth Schedule and in each case to be paid (at the option of the
Landlord, which said option may be exercised on any number of
occasions) either by standing order, direct debit, credit transfer or
cheque by equal quarterly payments in advance on the Quarterly Xxxx
Days without any deduction, set-off or counterclaim whatsoever (save
as required by law);
3.2 by way of additional rent all sums (including the reasonable and
proper cost of periodic valuations for insurance purposes) which the
Landlord shall from time to time pay for insuring the Demised Premises
against the Insured Risks pursuant to Clause 6.1. all such sums to be
paid on demand the first payment to be made on the execution hereof
and to be such amount as has been advised to the Tenant prior to the
delivery of this Lease;
3.3 by way of additional rent the Tenant's Proportion of the Plaza Service
Charge to be paid in accordance with the provisions of clause 4.2
below.
4 TENANT'S COVENANTS
------------------
The Tenant to the intent that the obligations may continue throughout the
Term HEREBY COVENANTS with the Landlord as follows:
-6-
4.1 Rents
-----
To pay the rents or increased rents reserved by this Lease and referred to
at paragraphs 3.1 to 3.3 inclusive and any additional sums payable herein at the
times and in the manner herein prescribed for the payment of same.
4.2 Service Charge
--------------
To pay to the Management Company:
4.2.1 An amount by way of additional rent equal to the Tenant's
Proportion of the Plaza Service Charge which shall be ascertained and certified
annually by a certificate (hereinafter called "the Certificate") signed by the
Accountant so soon after the end of the Management Company's Financial Year as
may be practical but in any event no later than 4 months after the end of the
Management Company's Financial Year and which shall relate to such year in the
manner hereinafter specified.
4.2.1.1 The Certificate shall state the total amount of the Plaza
Service Charge for the Management Company's Financial Year to which it relates
and the proportion of the Tenant's liability hereunder and the Certificate (or a
copy thereof duly certified by the person by whom same is given) shall be
conclusive evidence save for manifest error for the purposes hereof of the
matters which it purports to certify and shall be final and binding on the
parties hereto. The Certificate shall disclose the total expenditure in the
Management Company's Financial Year itemised under the various headings of
expense together with all income to be credited thereto.
4.2.1.2 On the 1st day of January, the 1st day of April, the 1st day
of July and 1st day of October in every year of the Term the Tenant shall pay to
the Management Company in advance quarterly instalments (hereinafter referred to
as "the Advance Payments") as the Management Company shall from time to time at
the commencement of the relevant Management Company's Financial Year certify as
being fair and reasonable and on account of the Tenant's Proportion of the Plaza
Service Charge for the said financial year.
4.2.1.3 As soon as practical after the end of each Management
Company's Financial Year the Management Company shall furnish to the Tenant the
Certificate in respect of that year due credit being given therein for the
Advance Payments made by the Tenant in respect of the said year and upon the
furnishing of the Certificate there shall be paid by the Tenant to the
Management Company on demand the balance of the Tenant's Proportion of the
Plaza Service Charge found to be payable or there shall be allowed or forthwith
paid as the case may be by the Management Company to the Tenant any amount
which may have been overpaid by the Tenant by way of Advance Payments as the
case may require PROVIDED ALWAYS that the provisions of this sub-clause shall
continue to apply notwithstanding the expiration or sooner
-7-
determination of the term hereby granted but only in respect of the period to
such expiration or sooner determination as aforesaid.
4.2.1.4 If any dispute or difference shall arise in respect of any
part of this clause, such dispute or difference shall be referred to the
Accountant whose decision shall be final and binding on the parties hereto and
in this respect the parties shall be entitled to make written or oral
submissions to the Accountant. Pending the determination of the Accountant in
relation to any such dispute or difference the Tenant shall continue to pay the
Advance Payments in the manner hereinbefore provided and in the event that the
Accountant determines that any such payments have been incorrectly made the
Tenant shall be allowed credit against the next payment or payments to the
extent of any overpayments made by the Tenant (or if the Lease shall have
terminated be re-paid by the Management Company).
4.3 Interest on arrears
-------------------
Without prejudice to any other right, remedy or power herein contained or
otherwise available to the Landlord, if any of the rents reserved by this Lease
(whether formally demanded or not) or if any other sum of money payable to the
Landlord (or the Management Company, as the case may be) by the Tenant under
this Lease shall remain unpaid after the date when payment was due, to pay
interest thereon at the Prescribed Rate from and including the date on which
payment was due to the date of payment to the Landlord (or the Management
Company, as the case may be) (both before and after any judgment).
4.4 Outgoings
---------
4.4.1 To pay and indemnify the Landlord against all existing and
future rates, taxes, duties, charges, assessments, impositions and outgoings
whatsoever (whether parliamentary, parochial, local or of any other description
and whether or not of a capital or non-recurring nature) which now are or may at
any time during the Term be charged, levied, assessed or imposed upon or payable
in respect of the Demised Premises or upon the owner or occupier of them
(excluding any tax payable by the Landlord upon any of the rents herein reserved
or occasioned by any disposition of or dealing with the reversion of this Lease
or by virtue of the ownership of the reversion);
4.4.2 To pay all charges for electricity, gas (if any), water and
other services and utilities consumed in the Demised Premises, including any
connection and hiring charges and meter rents and to perform and observe all
present and future regulations and requirements of the electricity, gas and
water supply authorities or boards in respect of the supply and consumption of
electricity, gas and water on the Demised Premises and to keep the Landlord
indemnified against any breach thereof.
-8-
4.5 Repairs
-------
To keep clean and tidy and to repair, replace and reinstate and to put into
and keep in good order repair and condition from time to time and at all times
during the Term the interior and exterior of the Demised Premises, and without
derogating from the generality of the foregoing, the roof, structure, drains,
foundations, walls (including external and load bearing walls), timbers, joists
and beams of the floors and ceilings, chimney stacks, gutters, doors, locks,
plate glass and other windows, fixtures, fittings, fastenings, wires, waste
water drains and other pipes and sanitary and water apparatus and to maintain,
repair and keep in good working order and condition and (where necessary because
same are beyond economic repair) renew and replace all plant and machinery
therein including the Conduits and the central heating and air conditioning
plant (if any), air displacement plant, the sprinkler system (if any) and all
lifts, lift shafts and lift machinery, all boilers and all electrical and
mechanical plant, machinery, equipment and apparatus, PROVIDED ALWAYS that
notwithstanding anything herein contained the Tenant shall not be obliged to
replace or renew any fit out, plant, machinery, or systems installed by it,
(damage by any of the Insured Risks excepted (other than in respect of any
amount which may be deducted or disallowed by the insurers pursuant to any
excess provision in the insurance policy upon settlement of any claim by the
Landlord) if and so long only as the policy or policies of insurance shall not
have been vitiated or payment of the policy monies withheld or refused in whole
or in part by reason of any act, neglect or default of the Tenant or the
servants, agents, licensees or invitees of the Tenant or any under-tenant or any
person under its or their control) AND in case the Demised Premises or any part
thereof shall be destroyed or become ruinous or incapable of beneficial
occupation or enjoyment by for or from any of the Insured Risks the Tenant
hereby absolutely waives and abandons its rights (if any) to surrender this
Lease under the provisions of Section 40 of the 1860 Act or otherwise;
4.6 External Decorations
--------------------
In every External Decoration Year and also during the last six months of
the Term (whether determined by effluxion of time or otherwise) in a good and
workmanlike manner to prepare and decorate (with two coats at least of good
quality paint) or otherwise treat, as appropriate, all external wood, metal,
stucco and cement work and other exterior parts of the Demised Premises required
to be so treated and in colours to be approved by the Landlord (such approval
not to be unreasonably withheld) and as often as may be reasonably necessary,
properly to wash down, clean, restore, repoint and make good and, wherever
appropriate, treat with suitable preservative, all stonework, brickwork,
concrete and other finishes to the reasonable satisfaction of the Landlord.
4.7 Internal decorations
--------------------
In every Internal Decoration Year and also in the last three months of the
Term (whether determined by effluxion of time or otherwise) in a good and
workmanlike manner to prepare and decorate (with two coats at least of good
quality paint) or
-9-
otherwise treat, as appropriate, all internal parts of the Demised Premises
required to be so treated and, as often as may be reasonably necessary, to wash
down all tiles, glazed bricks and similar washable surfaces; such decorations
and treatment in the last year of the Term to be executed in such colours and
materials as the Landlord may reasonably require;
4.8 Cleaning
--------
To keep the Demised Premises in a clean and tidy condition AND at least
once in every month, to clean properly all windows and window frames and all
other glass in the Demised Premises AND at least once in every three months to
clean properly the filter of the window ventilation system.
4.9 Yield up
--------
At the expiration or sooner determination of the Term quietly to yield up
the Demised Premises in such good and substantial repair and condition as shall
be in accordance with the covenants on the part of the Tenant herein contained
and in any licence or consent granted by the Landlord pursuant to the provisions
of this Lease and in case any of the Landlord's fixtures and fittings shall be
missing, broken damaged or destroyed (other than due to the Insured Risks if and
so long only as the policy or policies of insurance shall not have been vitiated
or payment of the policy monies withheld or refused in whole or in part by
reason of any act, neglect or default of the Tenant or the servants, agents,
licensees or invitees of the Tenant or any under tenant or any person under its
or their control and provided further that the Tenant shall pay to the Landlord
any amount which may be deducted or disallowed by the Insurers pursuant to any
excess provision in the insurance policy upon settlement of any claim by the
Landlord) to forthwith replace them with others of a similar kind and of equal
value and to remove from the Demised Premises any moulding, sign, writing or
painting of the name or business of the Tenant or occupiers and if so required
by the Landlord, but not otherwise, to remove and make good to the original
prevailing condition, all alterations or additions made to the Demised Premises
by the Tenant including the making good of any damage caused to the Demised
Premises by the removal of the Tenant's fixtures, fittings, furniture and
effects.
4.10 Rights of entry by Landlord
---------------------------
To permit the Landlord with all necessary materials and appliances at all
reasonable times upon reasonable prior notice (except in cases of emergency) to
enter and remain upon the Demised Premises for any of the following purposes:-
4.10.1 to view and examine the state and condition of the Demised
Premises and to take schedules or inventories of the Landlord's fixtures;
4.10.2 to exercise any of the rights excepted and reserved by this
Lease;
-10-
4.10.3 for any other purpose connected with the interest of the
Landlord in the Demised Premises or the Building, including but not limited to,
valuing or disposing of any interest of the Landlord.
subject in each case to compliance with the proviso to clause 2 of the Third
Schedule hereto.
4.11 To Comply with Notices
----------------------
Whenever the Landlord shall give written notice to the Tenant of any
breaches of covenant, the Tenant shall within sixty (60) days of such notice, or
sooner if requisite, make good and remedy the breach of covenant to the
reasonable satisfaction of the Landlord and if the Tenant shall fail within
twenty-one (21) days of such notice, or as soon as reasonably possible in the
case of emergency, to commence and then diligently and expeditiously to continue
to comply with such notice, the Landlord may enter the Demised Premises and
carry out or cause to be carried out all or any of the works referred to in such
notice and all reasonable costs and expenses thereby incurred shall be paid by
the Tenant to the Landlord on demand, and in default of payment, shall be
recoverable as rent in arrear.
4.12 Dangerous materials and use of machinery
----------------------------------------
4.12.1 Not to or keep in or on the Demised Premises any article or
thing which is or might become dangerous, offensive, unduly combustible or
inflammable, radio-active or explosive or which might unduly increase the risk
of fire or explosion save as shall be normal for an office premises with a
kitchen;
4.12.2 Not to keep or operate in the Demised Premises any machinery
which shall be unduly noisy or cause vibration or which is likely to annoy or
disturb the tenants and occupiers or of the Adjoining Property.
4.13 Overloading floors and services
-------------------------------
4.13.1 Not to overload the floors of the Demised Premises or suspend
any excessive weight from the roofs, ceilings, walls, stanchions or structure of
the Demised Premises and not to overload the Utilities and Conduits in or
serving the Demised Premises;
4.13.2 Not to do anything which may subject the Demised Premises or
any parts thereof to any strain beyond that which they are designed to bear with
due margin for safety;
4.13.3 to observe the weight limits and capacity prescribed for all
lifts in the Demised Premises.
-11-
4.14 Conduits
--------
Not to discharge into any Conduits any oil or grease or any noxious or
deleterious effluent or substance whatsoever which may cause an obstruction or
might be or become a source of danger, or which might injure the Conduits or the
Adjoining Property.
4.15 Prohibited users
----------------
4.15.1 Not to use the Demised Premises or any part thereof for any
public or political meeting, public exhibition or public entertainment show or
spectacle of any kind, nor for any dangerous, noisy, noxious or offensive trade,
business or occupation whatsoever, nor for any illegal or immoral purpose, nor
for residential or sleeping purposes;
4.15.2 Not to use the Demised Premises or any part thereof for
gambling, betting, gaming or wagering, or as a betting office, or as a club, or
for the sale of beer, wines and spirits, or as a public office and not to play
or use any musical instrument, record player, loud speaker or similar apparatus
in such a manner as to be audible outside the Demised Premises, and not to hold
any auction on the Demised Premises PROVIDED ALWAYS that the prohibition on use
of the Demised Premises as a public office shall not apply in the event of the
Tenant applying to the Landlord for consent to use part only of the Demised
Premises as a public office, such use being part of the normal business of the
Tenant or any permitted under tenant of the Demised Premises and confined to
normal business hours;
4.15.3 Not to place outside the Demised Premises, nor to expose from
the windows of the Demised Premises, any articles, goods or things of any kind.
4.16 User
----
4.16.1 Not without the prior written consent of the Landlord (which
consent shall not be unreasonably withheld or delayed) to use the Demised
Premises or any part thereof except for the Permitted User,
4.16.2 Not to leave the Demised Premises continuously unoccupied
(other than for normal holiday periods) without notifying the Landlord and
providing such caretaking or security arrangements as the Landlord shall
reasonably require in order to protect the Demised Premises from vandalism,
theft or unlawful occupation;
4.16.3 At all times to comply with all requirements of the relevant
Local Authority in connection with the user of the Demised Premises for the
purpose of the Tenant's business;
4.16.4 to provide the Landlord with the name, address and home
telephone number of at least two authorised key holders for the time being of
the
-12-
Demised Premises and to notify the Landlord of any changes in the person(s) so
authorised as keyholders of the Demised Premises;
4.17 Nuisance
--------
Not to do anything in or about the Demised Premises which may be or become
a nuisance, or which may cause damage, annoyance, inconvenience or disturbance
to the Landlord or the owners, tenants or occupiers of the Adjoining Property,
or which may be injurious to the value, tone, amenity or character of the
Demised Premises.
4.18 Alterations
-----------
4.18.1 Not to make any alterations or additions to the Landlord's
fixtures or to any of the Conduits without obtaining the prior written consent
of the Landlord (such consent not to be unreasonably withheld or delayed);
4.18.2 Not to make any alterations or additions of a non-structural
nature to the Demised Premises without obtaining the prior written consent of
the Landlord, (such consent not to be unreasonably withheld or delayed) provided
that the Landlord's consent shall not be necessary for the erection of
demountable partitions provided such demountable partitions are if so required
by the Landlord removed on the determination of the Term and the Tenant
covenants to make good any damage caused to the Demised Premises by their
removal;
4.18.3 The Landlord may, as a condition of giving any such consent,
require the Tenant to enter into such covenants, as the Landlord may reasonably
require regarding the execution of any such works and, such covenants as the
Landlord shall require regarding the reinstatement of the Demised Premises at
the end or sooner determination of the Term.
4.18.4 If any alterations or additions to or within the Demised
Premises result in a variation of the reinstatement cost of the Demised Premises
from the said cost prior to such alterations or additions;
4.18.4.1 Forthwith to give notice in writing to the Landlord of
the variation in value so caused to enable the Landlord to alter the insurance
cover in respect of the Demised Premises;
4.18.4.2 To pay or reimburse to the Landlord any shortfall of
insurance cover caused by a failure to comply with the requirements in Sub-
Clause 4.18.4.1;
4.18.4.3 Notice under Sub-Clause 4.18.4.1 notifying the
variation of the reinstatement cost shall only be sufficient notice if it refers
to the Sub-Clause in question and the Landlord shall not otherwise be deemed to
have received such notice or to be responsible for varying the said insurance
cover.
-13-
4.19 Signs and advertisements
------------------------
Not to erect or display on the exterior of the Demised Premises or in the
windows thereof so as to be visible from the exterior, any pole, flag, aerial,
advertisement poster, notice or other sign or thing whatsoever without the prior
written consent of the Landlord, save that the Tenant may display on the
entrance door to the Demised Premises a sign stating the Tenant's name and
business or profession and the name of the Demised Premises on obtaining the
prior written consent of the Landlord to the size, style and the position
thereof and the materials to be used (such consents not to be unreasonably
withheld or delayed) and the Tenant may with the prior written consent of the
Landlord (which shall not be unreasonably withheld or delayed) display signs for
the letting of the Demised Premises or parts thereof.
4.20 Alienation
----------
Not to assign, mortgage, charge, transfer, underlet, or part with the
possession or occupation of the Demised Premises or any part thereof or suffer
any person to occupy the Demised Premises or any part thereof as a licensee BUT
---
SO THAT NOTWITHSTANDING the foregoing the Landlord shall not unreasonably
------- ---------------
withhold or delay its consent to an assignment of the entire or to an
underletting of the entire or part of the Demised Premises to an assignee or
underlessee of good and sufficient financial standing and otherwise reasonably
acceptable to the Landlord or to a Mortgage or Charge of the entire of the
Demised Premises subject always to the following provisions or such of them as
may be appropriate, that is to say:-
4.20.1 The Tenant shall prior to any such alienation as aforesaid
apply to the Landlord and give all reasonable information concerning the
proposed transaction and concerning the proposed assignee, under-lessee or
disponee as the Landlord may require;
4.20.2 The Landlord's consent to any such alienation shall be in
writing and shall be given in such manner as the Landlord shall decide and the
Tenant shall pay the reasonable costs of the Landlord in connection with the
furnishing of such consent;
4.20.3 In the case of an assignment to a private limited liability
company which does not satisfy the minimum criteria specified in clause 1.9 of
the Sixth Schedule, it shall be deemed reasonable for the Landlord to require
that two directors of standing satisfactory to the Landlord shall join in such
consent as aforesaid as sureties for such Company in order jointly and severally
to covenant with the Landlord in the manner described in the guarantee contained
in the Sixth Schedule (mutatis mutandis) (but the Tenant may in lieu of such
directors guarantees offer a bank guarantee in a form reasonably acceptable to
the Landlord from AIB Plc, Bank of Ireland or Ulster Bank Limited or such other
financial institution whose long term investment rating as determined by
Standard and Poors, is no less than A+ or as determined by Moodys is no less
than AA3);
-14-
4.20.4 In the case of an under-lease the same shall be either of the
entire or part of the Demised Premises and, if the latter, shall be of an entire
floor or floors thereof, save in respect of the ground floor where the letting
may exclude that part of the ground floor utilized by the Tenant for the
purposes of a reception area and in the case of other floors, the stairs, lifts,
lift lobbies, and other common areas may be excluded and the maximum number of
floors to be underlet shall be four floors;
4.20.5 In the case of an underlease of part of the Demised Premises,
such underlease must be granted upon terms and in a manner that will not create
rights to a new tenancy or any other rights or interests in the Demised Premises
as provided for under the Landlord and Tenant Acts 1967 to 1994 and the Tenant
shall undertake to indemnify the Landlord from and against all or any actions,
proceedings, costs, damages, expenses, claims and demands which the Landlord may
suffer by reason or on account of any such underlessee successfully claiming
such rights pursuant to the said Acts.
4.20.6 In the case of an underlease, the same shall be made without
taking a fine or premium at the then current market rent for the type of lease
required by this clause (to be determined in the event of a dispute between the
Landlord and the Tenant by an independent chartered surveyor acting as an
arbitrator in accordance with the provisions of the Fourth Schedule as if such
provisions were set out in full herein, mutatis mutandis save the arbitrator may
be appointed by either party at any time after the Tenant's application for
consent to sub-let and the arbitrators determination shall be given within
twenty one days of his appointment) at the time of the granting of such under-
lease and the under-lessee shall, if required by the Landlord, enter into a
direct covenant with the Landlord to perform and observe all the covenants
(other than that for payment of the rents hereby reserved) and conditions herein
contained insofar as they relate to the portion of the Demised Premises sub-let
and every such under-lease shall also be subject to the following conditions,
that is to say that it shall contain:-
4.20.6.1 in the case only of leases for 5 years or more
provisions for the review of the rent thereby reserved (which the Tenant hereby
covenants to operate and enforce) corresponding both as to terms and dates and
in all other respects (mutatis mutandis) with the rent review provisions
contained in this Lease save where this would necessitate a review during the
first eighteen months of the sub-lease in which event the Landlord acknowledges
this requirement shall not apply in relation to such rent review date as would
fall within the 18 month period provided all subsequent reviews thereunder shall
correspond both as to terms and dates in all other respects (mutatis mutandis)
with the rent review provisions contained in this Lease;
4.20.6.2 a covenant by the undertenant (which the Tenant hereby
covenants to enforce) prohibiting the undertenant from doing or suffering any
act or thing upon or in relation to the Demised Premises inconsistent with, or
in breach of, the provisions of this Lease;
-15-
4.20.6.3 a condition for re-entry on breach of any covenant by
the undertenant;
4.20.6.4 the same restrictions as to alienation, assignment,
underletting, parting with or sharing the possession or occupation of the
premises underlet (unless the Tenant shall require more restrictive conditions);
4.20.7 To enforce at the Tenant's own expense the performance and
observance by every such undertenant of the covenants, provisions and conditions
of the under-lease and not, at any time, either expressly or by implication, to
waive any breach of the same;
4.20.8 Not to agree any reviewed rent with the undertenant or any
rent payable on any renewal thereof without the prior written consent of the
Landlord (such consent not to be unreasonably withheld);
4.20.9 Not to vary the terms of any permitted underlease without the
prior written consent of the Landlord, such consent not to be unreasonably
withheld;
4.21 Registration of dispositions
----------------------------
Within twenty-one (21) days of every alienation, assignment, transfer,
assent, under-lease, assignment of under-lease, mortgage, charge (including
lodgment of the relevant document or instrument as security) or any other
disposition, whether mediate or immediate, of or relating to the Demised
Premises or any part thereof, to produce to and leave with the Landlord or its
solicitors a certified copy of the deed, instrument or other document evidencing
or effecting such disposition and to pay to the Landlord's solicitors their
reasonable legal costs and other expenses in connection with such alienation.
4.22 Disclosure of information
-------------------------
Upon making any application or request in connection with the Demised
Premises or this Lease, to disclose to the Landlord such information as the
Landlord may reasonably require and, whenever the Landlord shall reasonably
request, to supply full particulars;
4.22.1 of all persons in actual occupation or possession of the
Demised Premises and of the right in which they are in such occupation or
possession, and
4.22.2 of all persons having an interest in the Demised Premises
(other than in the reversion to the Term).
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4.23 Landlord's costs
----------------
To pay and indemnify the Landlord against all reasonable and proper costs,
fees, charges, disbursements and expenses properly incurred by the Landlord,
including, but not limited to, those payable to solicitors, counsel, architects,
surveyors and sheriffs
4.23.1 in relation to the preparation and service of a notice under
Section 14 of the 1881 Act and of any proceedings under the 1881 Act and / or
the 1860 Act (whether or not any right of re-entry or forfeiture has been waived
by the Landlord or a notice served under Section 14 of the 1881 Act has been
complied with by the Tenant and notwithstanding that forfeiture has been avoided
(otherwise than by relief granted by the Court));
4.23.2 in relation to the preparation and service of all notices and
schedules relating to wants of repair, whether served during or after the
expiration of the Term (but relating in all cases only to such wants of repair
that accrued not later than the expiration or sooner determination of the Term);
4.23.3 in connection with the recovery or attempted recovery of
arrears of rent or other sums due from the Tenant, or in procuring the remedying
of the breach of any covenant by the Tenant;
4.23.4 in relation to any application for consent required or made
necessary by this Lease whether or not the same is granted (except in cases
where the Landlord is obliged not to unreasonably withhold its consent and the
withholding of its consent is held to be unreasonable), or whether or not the
application has been withdrawn;
4.23.5 In relation to any application made by the Landlord at the
request of the Tenant and whether or not such application is accepted, refused
or withdrawn.
4.24 Statutory requirements
----------------------
4.24.1 At the Tenant's own expense, to comply in all respects with
the provisions of all Acts, Statutory Instruments, Bye Laws and other
regulations now in force or which may hereafter be in force and any other
obligations imposed by law relating to the Demised Premises or the user thereof;
4.24.2 To execute all works and provide and maintain all arrangements
upon or in respect of the Demised Premises or the user thereof, which are
directed or required (whether by the Landlord, Tenant or occupier) by any
statute now in force or which may hereafter be in force or by any government
department, local or other competent authority or duly authorised officer or
court of competent jurisdiction acting under or in pursuance of any statute and
to indemnify and keep the Landlord indemnified
-17-
against all costs, charges, fees and expenses of or incidental to the execution
of any works or the provision or maintenance of any arrangements so directed or
required;
4.24.3 Not to do in or near the Demised Premises, any act or thing by
reason of which the Landlord may, under any statute, incur or have imposed upon
it or become liable to pay any penalty, damages, compensation, costs, charges or
expenses.
4.25 Planning Acts and the Building Control Act
------------------------------------------
4.25.1 Not to do anything on or in connection with the Demised
Premises the doing or omission of which shall be a contravention of the Planning
Acts or the Building Control Act or of any notices, orders, licenses, consents,
permissions and conditions (if any) served, made, granted or imposed thereunder
and to indemnify (as well after the expiration of the Term by effluxion of time
or otherwise as during its continuance) and keep indemnified the Landlord
against all actions, proceedings, damages, penalties, costs, charges, claims and
demands in respect of such acts and omissions or any of them and against the
costs of any application for planning permission, commencement notices, fire
safety certificates and the works and things done in pursuance thereof;
4.25.2 In the event of the Landlord giving written consent to any of
the matters in respect of which the Landlord's consent shall be required under
the provisions of this Lease or otherwise and in the event of permission or
approval from any local authority under the Planning Acts or the Building
Control Act being necessary for any addition, alteration or change in or to the
Demised Premises or for the change of user thereof, to apply, at the cost of the
Tenant, to the relevant local authority for all approvals, certificates,
consents and permissions which may be required in connection therewith and to
give notice to the Landlord of the granting or refusal (as the case may be)
together with copies of all such approvals, certificates, consents and
permissions forthwith on the receipt thereof and to comply with all conditions,
regulations, bye laws and other matters prescribed by any competent authority
either generally or specifically in respect thereof and to carry out such works
at the Tenant's own expense in a good and workmanlike manner to the satisfaction
of the Landlord;
4.25.3 To give notice forthwith to the Landlord of any notice, order
or proposal for a notice or order served on the Tenant under the Planning Acts
or the Building Control Act and if so required by the Landlord to produce the
same and at the request of the Landlord but at the cost of the Landlord, (unless
such notice or order results from the act, omission, neglect or default of the
Tenant or the servants, agents, licensees or invitees of the Tenant or any under
tenant or any person under its or their control) to make or join in making such
objections or representations in respect of any proposal as the Landlord may
require;
4.25.4 To comply at its own cost with any notice or order served on
the Tenant under the provisions of the Planning Acts or the Building Control
Act;
-18-
4.25.5 Not to implement any planning permission before it and any
necessary fire safety certificates have been produced to and approved in writing
by the Landlord (such approval not to be unreasonably withheld or delayed)
PROVIDED THAT the Landlord may refuse to approve such planning permission or
fire safety certificate on the grounds that any condition contained in it or
anything omitted from it or the period referred to in it would, in the
reasonable opinion of the Landlord, be or be likely to be, prejudicial to the
Landlord's interest in the Demised Premises.
4.25.6 To produce to the Landlord on demand all plans, documents and
other evidence as the Landlord may reasonably require in order to satisfy itself
that all of the provisions in this covenant have been complied with.
4.26 Statutory notices
-----------------
Within fourteen(14) days of receipt of the same (or sooner if requisite
having regard to the requirements of the notice or order in question or the time
limits stated therein) to produce to the Landlord a true copy and any further
particulars required by the Landlord of any notice or order or proposal for the
same given to the Tenant and relevant to the Demised Premises or the occupier
thereof by any government department or local or public or statutory authority,
and, without delay, to take all necessary steps to comply with the notice or
order in so far as the same is the responsibility of the Tenant, and, at the
request of the Landlord but at the cost of the Landlord, (unless such notice or
order results from the act, omission, neglect or default of the Tenant or the
servants, agents, licensees or invitees of the Tenant or any under tenant or any
person under its or their control) to make or join with the Landlord in making
such objection or representation against or in respect of any such notice, order
or proposal as the Landlord shall deem expedient.
4.27 Fire and safety precautions and equipment
-----------------------------------------
4.27.1 To comply with the requirements and recommendations (whether
notified or directed to the Landlord and then to the Tenant or directly to the
Tenant) of the appropriate local authority, the insurers of the Demised Premises
and the Landlord in relation to fire and safety precautions affecting the
Demised Premises;
4.27.2 Not to obstruct the access to or means of working any fire
fighting, extinguishing and other safety appliances for the time being installed
in the Demised Premises or the means of escape from the Demised Premises in case
of fire or other emergency.
4.27.3 To comply at all times with the provisions of the Safety
Health and Welfare at Work Act and (where applicable) to furnish the Landlord
with a copy of the Safety File prepared pursuant thereto.
-19-
4.28 Encroachments and easements
---------------------------
Not to stop up, darken or obstruct any of the windows or lights belonging
to the Demised Premises and not to permit any new window, light, opening,
doorway, passage, Conduit or other encroachment or easement to be made or
acquired into, upon or over the Demised Premises or any part thereof, and in
case any person shall attempt to make or acquire any encroachment or easement
whatsoever, to give written notice thereof to the Landlord immediately the same
shall come to the notice of the Tenant, and, at the request of the Landlord but
at the cost of the Tenant, to adopt such means as may be reasonably required by
the Landlord for preventing any such encroachment or the acquisition of any such
easement.
4.29 Reletting notices
-----------------
To permit the Landlord at all reasonable times during the last six (6)
months of the Term to enter upon the Demised Premises and affix and retain
without interference upon any suitable parts of the Demised Premises (but not so
as to materially affect the access of light and air to the Demised Premises or
the Tenant's use and enjoyment thereof or its business) notices for reletting
the same and not to remove or obscure the said notices and to permit all persons
with the written authority of the Landlord to view the Demised Premises at all
reasonable hours in the daytime, upon reasonable prior notice having been given.
4.30 Indemnity
---------
4.30.1 To keep the Landlord fully indemnified from and against all
actions, proceedings, claims, demands, losses, costs, expenses, damages and
liability arising in any way directly or indirectly out of any act, omission or
negligence of the Tenant or any persons in on or about the Demised Premises
expressly or impliedly with the Tenant's authority or the user of the Demised
Premises or any breach of the Tenant's covenants or the conditions or other
provisions contained in this Lease;
4.30.2 To effect and keep in force during the Term such public
liability, employer's liability and other policies of insurance (to the extent
that such insurance cover is available) as may be necessary to cover the Tenant
against any claim arising under this covenant and to extend such policies of
insurance so that the Landlord is indemnified by the insurers in the same manner
as the Tenant AND whenever required to do so by the Landlord, to produce to the
Landlord the said policy or policies together with satisfactory evidence that
the same is/are valid and subsisting and that all premiums due thereon have been
paid.
-20-
4.31 Stamp Duty and Value Added Tax
------------------------------
To pay to the Landlord the stamp duty payable on this Lease and the
counterpart thereof and to pay and indemnify the Landlord against any Value
Added Tax payable on the delivery hereof or on the rents reserved herein.
5 LANDLORD'S COVENANTS
The Landlord HEREBY COVENANTS with the Tenant as follows:
5.1 Quiet Enjoyment
---------------
That the Tenant paying the rents reserved by this Lease and performing and
observing the covenants on the part of the Tenant herein contained, shall and
may peaceably hold and enjoy the Demised Premises during the Term without any
interruption by the Landlord or any person lawfully claiming through, under, or
in trust for it.
6 INSURANCE
---------
6.1 Landlord to insure
------------------
Subject to the Landlord being able to effect insurance against any one or
more of the items referred to in this subclause (which the Landlord shall use
all reasonable endeavours to do) and subject to reimbursement by the Tenant of
the sums referred in paragraph 3.2 of the reddendum, the Landlord covenants with
the Tenant to insure the following in the name of the Landlord:-
6.1.1 the Demised Premises against loss or damage by the Insured
Risks in the full reinstatement cost thereof (to be determined from time to time
by the Landlord or his Surveyor or professional adviser) including;
6.1.2 Architects, Surveyors, Consultants and other professional fees
(including Value Added Tax thereon);
6.1.3 the costs of shoring up, demolishing, site clearing and similar
expenses;
6.1.4 all stamp duty and other taxes or duties exigible on any
building or like contract as may be entered into and all other incidental
expenses relative to the reconstruction, reinstatement or repair of the Demised
Premises;
6.1.5 such provision for inflation as the Landlord acting reasonably
in its absolute discretion shall deem appropriate;
6.1.6 the loss of rent and the service charge sums referred to in
paragraph 3.3 of the reddendum, from time to time payable, or reasonably
estimated to be
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payable under this Lease (taking account of any review of the rent which may
become due under this Lease) following loss or damage to the Demised Premises by
the Insured Risks, for three (3) years or such longer period as the Landlord
may, from time to time, reasonably deem to be necessary, having regard to the
likely period required for obtaining planning permission and fire safety
certificates (if applicable) and any other consents and approvals for
reinstating the Demised Premises;
6.1.7 property owners, public, employer's and other liability of the
Landlord arising out of or in relation to the Demised Premises; and
6.1.8 such other insurances (excluding decennial or defects liability
insurance) as the Landlord may acting reasonably, from time to time, deem
necessary to effect.
6.2 Landlord to produce evidence of insurance
-----------------------------------------
At the request of the Tenant, the Landlord shall and hereby covenants with
the Tenant to produce to the Tenant a copy or extract duly certified by the
Landlord of the policy/policies of such insurance and a copy of the receipt(s)
for the last premium or (at the Landlord's option) reasonable evidence from the
insurers of the terms of the insurance policy/policies and the fact that the
policy/policies is subsisting and in effect and to use all reasonable endeavours
to procure at the Tenant's cost and for so long as the same is generally
available in the Irish Insurance market that the relevant policy will contain a
waiver of subrogation rights in favour of the Tenant (or if the same is not
available that the Tenant's interest will be noted on the policy provided
however the Tenant acknowledges that notwithstanding any noting of its interest
that the Landlord will be named thereon as sole loss payee) and to use all
reasonable endeavours to procure at the Tenant's cost and for so long as same is
generally available in the Irish Insurance market that the insurance policy
contains a tenant's non-invalidation clause.
6.3 Destruction of the demised premises
-----------------------------------
If the Demised Premises or any part thereof or the access or services
thereto are destroyed or damaged by any of the Insured Risks so as to render it
unfit for use and occupation or inaccessible then:-
6.3.1 unless payment of the insurance monies shall be refused in
whole or in part by reason of any act neglect or default of the Tenant or the
servants agents licensees or invitees of the Tenant or any undertenant or any
person under its or their control; and
6.3.2 subject to the Landlord being able to obtain any necessary
planning permission and fire safety certificates and all other necessary
licenses, approvals and consents (in respect of which the Landlord shall use its
reasonable endeavours to obtain as soon as practicable); and
-22-
6.3.3 subject to the necessary labor and materials being and
remaining available (in respect of which the Landlord shall use its reasonable
endeavours to obtain as soon as practicable);
the Landlord shall as soon as reasonably practicable lay out the proceeds of
such insurance, (other than any in respect of the loss of rent and service
charge sums referred to in paragraph 3.3 of the reddendum and making good any
shortfall from the Landlord's own funds) in the rebuilding and reinstating of
the Demised Premises or the accesses or services thereto or the part or parts
thereof so destroyed or damaged, substantially as the same were prior to any
such destruction or damage (but not so as to provide accommodation identical in
layout and manner or method of construction if it would not be reasonably
practical to do so).
6.4 Where reinstatement is prevented
--------------------------------
If the Landlord is prevented (for whatever reason) from rebuilding or
reinstating the Demised Premises, the Landlord shall be relieved from such
obligation and shall be solely entitled to all the insurance moneys and if such
rebuilding and reinstating shall continue to be so prevented for three (3) years
after the date of the destruction or damage and this Lease has not been
terminated by frustration, (a) the Landlord may at any time after the expiry of
such three (3) years by written notice given to the Tenant determine this demise
and (b) if at the expiration of such three (3) year period the rebuilding and
reinstating of the Demised Premises has not commenced then the Tenant may also
at any time thereafter by written notice given to the Landlord determine this
demise PROVIDED ALWAYS that if after three (3) years rebuilding and reinstating
has commenced the Tenant's right to determine will not accrue until the
expiration of five (5) years from the date of damage and destruction but
PROVIDED FURTHER that in either case determination of the demise shall be
without prejudice to any claim by either party against the other in respect of
any antecedent breach of covenant.
6.5 Cesser of rent and service charge
---------------------------------
In case the Demised Premises or any part or parts thereof or the accesses
or services thereto shall be destroyed or damaged by any of the Insured Risks so
as to render same unfit for use and occupation or inaccessible and the insurance
shall not have been vitiated or payment of the policy monies refused in whole or
in part as a result of some act or default of the Tenant or any under-tenant or
any person under its or their control, then the rent first reserved by this
Lease and the service charges referred to in paragraph 3.3 of the reddendum or a
fair proportion thereof, according to the nature and extent of the damage
sustained, shall be suspended until the Demised Premises or the part destroyed
or damaged shall be again rendered fit for use and occupation and accessible or
until the expiration of five (5) years from the date of the destruction or
damage (whichever is the earlier) and any dispute regarding the cesser of rent
shall be referred to a single arbitrator to be appointed, in default of
agreement, upon the application of either party, by or on behalf of the
President (or other officer endowed with the functions of
-23-
such President) for the time being of the Society of Chartered Surveyors in
accordance with the provisions of the Arbitration Acts 1954 to 1980.
6.6 Insurance becoming void
-----------------------
The Tenant shall not do or omit to do anything that could cause any policy
of insurance in respect of or covering the Demised Premises or such of any
Adjoining Property as may be owned by the Landlord to become void or voidable
wholly or in part nor (unless the Tenant has previously notified the Landlord
and agreed to pay the increased premium) do anything whereby any abnormal or
loaded premium may become payable and the Tenant shall, on demand, pay to the
Landlord all expenses incurred by the Landlord in renewing any such policy.
6.7 Notice by Tenant and Landlord
-----------------------------
The Tenant shall give notice to the Landlord forthwith upon the happening
of any event or thing which might affect any insurance policy relating to the
Demised Premises and the Landlord shall notify the Tenant as soon as reasonably
practicable if it cannot insure against any Insured Risk or risk which it
previously insured against or on the cancellation termination or lapse of any
insurance cover.
6.8 Superior Lease and Common Areas Deed
------------------------------------
To perform and observe the covenants and conditions on the Landlord's part
in any Superior Lease of the Demised Premises insofar as such covenants relate
to the Demised Premises and do not fall to be performed and observed by the
Tenant hereunder and to perform and observe the covenants and conditions on its
part contained in the Common Areas Deed and to use reasonable endeavours to
procure the performance and observance by the other parties to the Common Areas
Deed of their respective obligations thereunder.
6.9 Safety File
-----------
The Landlord shall maintain the Safety File for the Demised Premises in
accordance with its obligations under the Safety Health and Welfare at Work
(Construction) Regulations 1995 and the Landlord acknowledges the right of the
Tenant to production of the said Safety File and the application for the Fire
Safety Certificate for the Demised Premises and to delivery of copies thereof
and hereby undertakes with the Tenant for the safe custody of same.
7 MANAGEMENT COMPANY COVENANTS
----------------------------
7.1 Services
--------
Subject to the payment of the Tenant's Proportion of the Plaza Service
Charge and subject as hereinafter provided to use all reasonable endeavours to
provide or cause to be provided the maintenance and services more particularly
set forth in the Fifth Schedule
-24-
In providing any such maintenance and services the Management Company shall
observe the principles of good estate management and shall provide such services
in a proper, efficient and economical manner and where incurring costs shall
ensure that any such costs are reasonably competitive having regard to the terms
on which competent parties would be willing to undertake the functions required
for the provision of the said maintenance and services.
The Management Company shall consult with the Tenant regarding the
provision of the services and the cost thereof and where it is reasonably
possible so to do shall advise the Tenant in advance of any matter which would
materially affect the level of the service charge payable by the Tenant.
7.2 Common Areas Deed
-----------------
To comply with the obligations on its part in the Common Areas Deed.
8 PROVISOS
--------
PROVIDED ALWAYS AND IT IS HEREBY AGREED AND DECLARED as follows:-
----------------------------------------------------
8.1 Forfeiture
----------
Without prejudice to any other right, remedy or power herein contained or
otherwise available to the Landlord:
8.1.1 if the rents reserved by this Lease or any part or parts
thereof shall be unpaid for fourteen (14) days after becoming payable (whether
formally demanded or not); or
8.1.2 if any of the covenants by the Tenant contained in this Lease
shall not be performed or observed; or
8.1.3 if the Tenant and / or any current guarantor of the Tenant
(other than the Guarantor if the Lease has been assigned) (either or both being
a body corporate) has a winding-up petition presented against it or passes a
winding-up resolution (other than in connection with a members voluntary winding
up for the purposes of an amalgamation or reconstruction which has the prior
written approval of the Landlord (which approval the Landlord shall not
unreasonably withhold or delay) or resolves to present its own winding-up
petition or is wound-up (whether in Ireland or elsewhere) or a Receiver and
Manager is appointed in respect of the Demised Premises or any part thereof or
of the Tenant or the current guarantor of the Tenant (other than the Guarantor
if this Lease has been assigned); or
8.1.4 if the Tenant and / or the Guarantor (either or both being an
individual, or if more than one individual, then any one of them) has a
bankruptcy
-25-
petition presented against him or is adjudged bankrupt (whether in Ireland or
elsewhere) or suffers any distress or execution to be levied on the Demised
Premises or enters into composition with his creditors or shall have a receiving
order made against him,
THEN, and in any such case, the Landlord may at any time thereafter re-enter the
Demised Premises or any part thereof in the name of the whole and thereupon the
Term shall absolutely cease and determine but without prejudice to any rights or
remedies which may then have accrued to the Landlord against the Tenant in
respect of any antecedent breach of any of the covenants or conditions contained
in this Lease.
8.2 Close common areas
------------------
That it shall be lawful for the Management Company at any time or times
during the Term to temporarily close any part of the Common Areas or to erect
obstructions or boundary marks or take such steps as the Management Company
shall think necessary for the purpose of preventing the acquisition of any
public rights of way over any part of the Common Areas PROVIDED ALWAYS that the
Management Company shall at all times provide reasonable alternative access and
shall not materially interfere with the occupation, amenity, user enjoyment of
the Demised Premises and the Car Spaces and shall use all reasonable endeavours
to re-open all such parts as aforesaid as soon as circumstances may reasonably
permit.
8.3 Rules and regulations
---------------------
That it shall be lawful for the Management Company from time to time having
regard to the principles of good estate management and for the benefit of the
tenants in the Plaza to make such reasonable regulations as the Management
Company shall think fit for the management and conduct of the Plaza and to vary
any such regulations provided such regulations shall not materially interfere
with the occupation, amenity, use or enjoyment of the Demised Premises by the
Tenant or the Tenant's right to use the Car Spaces.
8.4 Agents
------
In performing any obligations under this Lease the Management Company shall
be entitled at its sole discretion to employ such agents, contractors or other
persons as the Management Company may from time to time think fit;
8.5 Stoppage of Services
--------------------
Save to the extent that the same is covered by insurances effected by it
the Management Company shall not be responsible for any unavoidable delay or
stoppage in connection with the provision of the said maintenance and services
or for any loss, injury or damage sustained by the Tenant as a result of the
temporary failure of the Management Company or its agents to provide the same or
for any temporary omission to perform the
-26-
same if such temporary failure, delay, stoppage or omission shall be due to any
shortage of labour or materials inclement weather or other cause not within the
control of the Management Company but the Management Company shall nevertheless
take all reasonable steps to remedy or make good any such failure, delay,
stoppage or omission as aforesaid as soon as may be practicable.
8.6 Failure of Services
-------------------
Save to the extent that the same is covered by insurances effected by the
Management Company if the Management Company shall fail to provide the
maintenance and services as hereinbefore provided the Tenant's sole remedy shall
be an action to compel the Management Company to do so and save to the extent
that the same is covered by insurances effected by the Management Company the
Management Company shall not be liable to the Tenant in respect of any loss,
injury or damage which the Tenant shall sustain as a result of the failure of
the Management Company to provide such maintenance or services or the failure of
any member of the Management Company's staff properly to carry out his duties
unless the Tenant shall notify the Management Company in writing specifying the
failure for which the Tenant complains and the Management Company shall after
the expiration of 21 days from the receipt of the said notice continue to
neglect to provide said maintenance or services in respect of which notice has
been given by the Tenant.
8.7 Cesser of Services
------------------
The Management Company shall be entitled not to or to cease to provide any
maintenance and services set forth in the Fifth Schedule hereto if any
maintenance and services shall in the opinion of the Management Company having
regard to the principles of good estate management cease to be for the benefit
of the Plaza or shall have become due to technological change or otherwise
obsolete or redundant.
8.8 Costs Recovered
---------------
All sums received by the Landlord and / or the Management Company towards
the cost of making good defects to the Common Areas pursuant to any action taken
by the Landlord and / or the Management Company on foot of any collateral
agreements it holds from the Building Contractor or any member of the
Professional Team involved in the construction of the Common Areas or, pursuant
to any insurance policy maintained by the Management Company shall be credited
against the Plaza Service Charge. The Landlord and / or the Management Company
shall use reasonable endeavours to recover any such sums to which it may be
entitled PROVIDED ALWAYS that the Landlord and / or the Management Company shall
not be obliged to institute proceedings for the recovery of any such sums where
the Landlord and / or the Management Company is of the view that any such
proceedings do not have a reasonable prospect of success and until the Landlord
and / or the Management Company is satisfied that adequate provision is made
within the Plaza Service Charge in respect of any costs reasonably and properly
incurred or to be
-27-
incurred by the Landlord and / or the Management Company in respect of such
proceedings.
8.9 No Implied easements
--------------------
Nothing herein contained shall impliedly confer upon or grant to the Tenant
any easement, right or privilege other than those expressly granted by this
Lease or in any other agreement or in writing or side letter between the
Landlord and the Tenant and the written replies to Pre-Lease Enquiries given by
or on behalf of the Landlord.
8.10 Exclusion of warranty as to user
--------------------------------
Nothing contained in this Lease or in any consent granted by the Landlord
under this Lease shall imply or warrant that the Demised Premises may be used
under the Planning Acts or the Building Control Act and the Public Health Acts
for the purpose herein authorised or any purpose subsequently authorised and the
Tenant hereby acknowledges and admits that the Landlord has not given or made at
any time any representation or warranty that any such use is or will be or will
remain a permitted use under the Planning Acts;
8.11 Representations
---------------
The Tenant acknowledges that this Lease has not been entered into in
reliance wholly or partly on any statement or representation made by or on
behalf of the Landlord, except any such statement or representation that is
expressly set out in this Lease or in any other agreements or side letters
between the Landlord and the Tenant and the replies to pre-lease enquiries given
by or on behalf of the Landlord.
8.12 Covenants relating to Adjoining Property
----------------------------------------
Nothing contained in or implied by this Lease shall give to the Tenant the
benefit of or the right to enforce or to prevent the release or modification of
any covenant, agreement or condition entered into by any tenant of the Landlord
in respect of the Adjoining Property.
8.13 Effect of waiver
----------------
Each of the Tenant's covenants shall remain in full force both at law and
in equity notwithstanding that the Landlord shall have waived or released
temporarily any such covenant, or waived or released temporarily or permanently,
revocably or irrevocably a similar covenant or similar covenants affecting other
property belonging to the Landlord.
8.14 Applicable Law
--------------
8.14.1 This Lease shall in all respect be governed by and interpreted
in accordance with the laws of Ireland;
-28-
8.14.2 For the benefit of the Landlord, both the Tenant and the
Guarantor hereby irrevocably agree that the Courts of Ireland are to have
jurisdiction to settle any disputes which may arise out of or in connection with
this Lease and that accordingly any suit, action, or proceedings (together in
this Clause referred to as "proceedings") arising out of or in connection with
this Lease may be brought in such Courts;
8.14.3 The Tenant and the Guarantor hereby irrevocably waive any
objection which they or either of them may have now or hereafter to the taking
of any proceedings in any such Court as is referred to in this Clause and any
claim that any such proceedings have been brought in an inconvenient forum and
further irrevocably agree that any judgment in any proceedings brought in the
Courts of Ireland shall be conclusive and binding upon them and may be enforced
in the courts of any other jurisdiction;
8.14.4 Nothing contained in this clause shall limit the right of the
Landlord to take proceedings against the Tenant and / or the Guarantor in any
other Court of competent jurisdiction nor shall the taking of proceedings in one
or more jurisdictions preclude the taking of proceedings in any other
jurisdiction whether concurrently or not;
8.14.5 The Tenant and the Guarantor hereby jointly and severally
agree that the proceedings may be served upon the Tenant and or the Guarantor by
delivery at the Demised Premises (only prior to the expiry of the Term) or at
such other address in Ireland as the Tenant and / or the Guarantor (as the case
may be) may from time to time notify to the Landlord in writing for this
purpose.
8.15 Notices
-------
8.15.1 Any demand or notice required to be made, given to, or served
on the Tenant or the Guarantor under this Lease shall be duly and validly made,
given or served if addressed to the Tenant or the Guarantor respectively (and,
if there shall in either case be more than one person constituting the Tenant or
the Guarantor, then to any one of them) and delivered personally, or sent by
pre-paid registered or recorded delivery mail, or sent by telex or telegraphic
facsimile transmission addressed (in the case of a company) to its registered
office, or (whether a company or individual) to its last known principal address
(in the case of a notice to the Tenant given before the determination of the
Term) to the Demised Premises;
8.15.2 Any notice required to be given to or served on the Landlord
shall be duly and validly given or served if sent by pre-paid registered or
recorded delivery mail, or sent by telex telegraphic facsimile transmission
addressed to the Landlord at its registered office or to its last known address
(if the Landlord is an individual);
-29-
9. THE GUARANTOR'S COVENANTS
-------------------------
In consideration of this demise having been made at its request, the
Guarantor HEREBY COVENANTS with the Landlord, as a primary obligation in the
terms contained in the Sixth Schedule.
10. SECTION 45 LAND ACT 1965
------------------------
IT IS HEREBY CERTIFIED that the Demised Premises are situate in the County
----------------------
Borough of Dublin.
11. FINANCE ACT CERTIFICATES
------------------------
11.1 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 IR(Pounds)5,000.00;
11.2 IT IS HEREBY FURTHER CERTIFIED for the purposes of the stamping
------------------------------
of this Instrument that this is an instrument to which the provisions of Section
112 of the Finance Xxx 0000 do not apply for the reason that the property being
leased is an existing commercial unit.
12. SECTION 29 COMPANIES ACT, 1990
------------------------------
IT IS HEREBY CERTIFIED for the purposes of Section 29 of the Companies Act
----------------------
1990 that the Landlord and the Tenant are not bodies corporate connected with
one another in a manner which would require this transaction to be ratified by
resolution of either or their holding companies.
13 SECTION 31 COMPANIES ACT, 1990
------------------------------
13.1 IT IS HEREBY CERTIFIED for the purpose of Section 31 of the
----------------------
Companies Xxx 0000 that the Landlord and the Tenant are not connected to each
other in such a manner that the transaction hereby effected is prohibited by
Section 31.
13.3 IT IS HEREBY CERTIFIED for the purpose of Section 31 of the
----------------------
Companies Xxx 0000 that the Tenant and the Guarantor are not connected to each
other in such a manner that the transaction hereby effected is prohibited by
Section 31.
IN WITNESS whereof the parties hereto have executed this Lease in the
manner following and on the day and year first herein WRITTEN.
-30-
FIRST SCHEDULE
--------------
Demised Premises
ALL THAT the entire of the lands and premises together with the building
--------
erected thereon or on part or parts thereof shown outlined in red on Plan No. 1
annexed hereto and known as Block 1 Grand Canal Plaza, Grand Canal Street Upper
in the City of Dublin to include one moiety severed vertically of the party wall
between the Building and the adjoining building known as Block 2, Grand Canal
Plaza.
SECOND SCHEDULE
---------------
Rights And Easements Granted
1. The full and free right of support protection and shelter for such parts of
the Demised Premises as require the same from any other part of the Plaza
or any extension thereof capable of providing such support and protection.
2. The right subject to the provisions of this Lease to the free and
uninterrupted passage of the Utilities (in common with the Landlord and
lessees of other parts of the Plaza and all other persons entitled thereto)
through and from the Conduits laid or to be laid within the Perpetuity
Period on or over, under or through any other parts of the Plaza or any
extension thereof or other contiguous or adjacent lands and premises of the
Landlord.
3. The right (in common with the Landlord and tenants of other parts of the
Plaza and all other persons similarly entitled or authorised) to enter on
such parts of the Plaza (upon giving due notice to any parties affected)
including the roof of the Demised Premises for the purpose of repairing or
cleansing any Conduits or Utilities used in connection with the Demised
Premises or for the purpose of repairing the Demised Premises.
4. The right at all times to go pass and xxxxxx with or without vehicles over
the roads and on foot only over the pedestrian ways within the Common Areas
as designated from time to time by the Landlord (or the Management Company)
for the Tenant's access to and egress from the Demised Premises and the Car
Spaces to and from the public highway.
5. The right to go pass and xxxxxx over the Common Areas as designated by the
Landlord (or the Management Company) from time to time for the purpose of
enjoying the amenities therein provided for the benefit of occupiers
generally in the Plaza.
6. The exclusive right for the Tenant and the occupiers and other bona fide
users of the Demised Premises to use the 33 car spaces colored pink on Plan
No. 1 at all times for the parking of private motor cars and for no other
purpose subject to any existing or future regulations made by the Landlord
or the Management Company in accordance with clause 8.3 of this Lease and
to the right of the Landlord or the Management Company from time to time,
on giving to the Tenant not less than one month's written notice, to alter
the position of the space or spaces within the Plaza and designate such
other space or spaces within the Plaza as the Landlord may, in its absolute
discretion, determine provided that, where possible, the
-1-
Landlord or the Management Company shall provide spaces as close as
possible to the Demised Premises.
7. The right, in common with any other tenants or occupants of the Plaza to
the use of such area (if any) designated by the Landlord and / or the
Management Company for refuse storage in the Plaza and to pass and re-pass
thereto and therefrom at all times.
8. The right (subject to obtaining the Landlord's prior approval, such
approval not to be unreasonably withheld or delayed) to name the Demised
Premises.
-2-
THIRD SCHEDULE
--------------
Exceptions and Reservations
The following rights and easements are excepted and reserved out of the
Demised Premises to the Landlord, the Management Company and the tenants and
occupiers of the Adjoining Property and all other persons authorised by the
Landlord or having the like rights and easements:-
1. The free and uninterrupted passage and running of the Utilities through the
Conduits which are now, or may at any time during the Term be in, on,
under, or passing through or over the Demised Premises;
2. The right, at all reasonable times upon reasonable prior notice, except in
cases of emergency, to enter (or, in cases of emergency or after the giving
of reasonable notice during the Tenant's absence, to break and enter) the
Demised Premises in order to:-
2.1 inspect, cleanse, maintain, repair, connect, remove, renew, relay,
replace with others, alter or execute any works whatever to or in
connection with the Conduits and any other services;
2.2 execute repairs, decorations, alterations and any other works and to
make installations to the Adjoining Property or to do anything
whatsoever which the Landlord may or must do under this Lease;
2.3 see that no unauthorised erections additions or alterations have been
made and that authorised erections additions and alterations are being
carried out in accordance with any consent given herein and any
permission or approval granted by the relevant local authority,
PROVIDED THAT the Landlord or the person exercising the foregoing
rights shall cause as little inconvenience as possible to the Demised
Premises and the business carried on therein and will comply with all
reasonable safety, security, confidentiality or environmental requirements
of the Tenant and shall make good, without delay, any damage thereby caused
to the Demised Premises;
3. The right to erect scaffolding for the purpose of repairing or cleaning any
building now or hereafter erected on the Adjoining Property or in
connection with the exercise of any of the rights mentioned in this
Schedule notwithstanding that such scaffolding may temporarily interfere
with the proper access to or the enjoyment and use of the Demised Premises;
-1-
4. The right to erect and maintain signs on the Demised Premises and any
premises abutting the same advertising the sale or letting of the Demised
Premises or for the purpose of a planning or other application in respect
of the Demised Premises.
5. The rights of light, air, support, protection and shelter and all other
easements and rights now or hereafter belonging to or enjoyed by the
Adjoining Property;
6. The air space over the Demised Premises PROVIDED HOWEVER that the Landlord
shall not be entitled to place plant or machinery (other than aerials) or
build additional accommodation physically on the roof of the Demised
Premises and the Tenant shall be entitled to exercise its rights under
clause 3 of the Second Schedule;
7. Subject to obtaining any Planning Permissions and other consents necessary,
full right and liberty at any time hereafter to raise the height of, or
make any alterations or additions or execute any other works to any
buildings on the Adjoining Property, or to erect any new buildings of any
height on the Adjoining Property in such a manner as the Landlord or the
person exercising the right shall think fit notwithstanding the fact that
the same may obstruct, affect or interfere with the amenity of, or access
to, the Demised Premises or the passage of light and air to the Demised
Premises but not so that the Tenant's use and occupation thereof or the Car
Spaces is materially affected (but preserving the Tenant's rights at law to
object to any planning application for the same);
8. The right to build on or into any party wall of the Demised Premises and,
after giving not less than seven (7) days prior written notice, to enter
the Demised Premises to place and lay in, under or upon the same such
footings for any intended party wall or party structure with the
foundations therefor as the Landlord shall reasonably think necessary and
for such purpose to excavate the Demised Premises along the line of the
junction between the Demised Premises and the Adjoining Property and also
to keep and maintain the said footings and foundations AND on completion of
the said works the Landlord or the person exercising this right shall make
good, without delay to the reasonable satisfaction of the Tenant, any
damage thereby caused to the Demised Premises;
PROVIDED THAT the Landlord or the person exercising the foregoing
rights shall cause as little inconvenience as possible to the Demised
Premises and the business carried on therein and will comply with all
reasonable safety, security, confidentiality or environmental requirements
of the Tenant and shall make good, without delay, any damage thereby caused
to the Demised Premises;
9. All mines and minerals in or under the Demised Premises.
10. The right of support and protection by the Demised Premises for such other
parts of the Plaza or any extensions or alterations thereof or any
adjoining premises as
-2-
require such support and protection to the extent only that the Demised
Premises is designed to provide such protection and support.
11. The right from time to time to make reasonable rules and regulations and to
make additions amendments or revisions thereof for the orderly convenient
and proper operation management and maintenance of the Plaza as a whole or
any part thereof and in particular the Common Areas including rules and
regulations to be observed and performed in relation to standards,
including standards of design and technical specification, relating to
maintenance alterations additions and improvements all of which reasonable
rules and regulations shall be deemed to be and shall form part of this
Lease.
12. The right on reasonable prior notice to the Tenant (save in case of
emergency where no such notice shall be required) to designate, vary,
alter, change the use of, close or control access to the whole or any part
of the Common Areas provided that the Management Company shall where
appropriate provide reasonable alternative access to the Demised Premises
and the Car Spaces.
13. The right on reasonable prior notice to the Tenant (save in case of
emergency where no such notice shall be required) to close temporarily at
any time any part or parts of the Common Areas for the purpose of repairing
renewing renovating replacing cleaning and maintaining the same subject as
at 12 above.
14. The right for the Management Company to make reasonable and proper rules
and regulations:
14.1 For the control regulation and limitation of traffic vehicular and
otherwise into from and within the Plaza (but not so as to materially
restrict or affect access to the Car Spaces) and in particular
regulations for the delivery and storage of stocks and goods and the
control and use of any common store or stores.
14.2 For the storage and removal of disposal or waste.
14.3 In relation to the erecting and maintaining of signs notices and
regulations as may be appropriate in any part or parts of the Plaza.
14.4 As to the means of bringing the Utilities into or through the Demised
Premises.
14.5 For the security of the Plaza as a whole or in respect of any part or
parts.
14.6 For emergency action and procedure.
14.7 For fire precautions.
-3-
FOURTH SCHEDULE
---------------
Rent Reviews
1. Definitions
-----------
In this Schedule, the following expressions shall have the following
meanings:-
1.1 "Review Date, means each of the Rent Review Dates specified in the
-------
Particulars and "Relevant Review Dates" shall be construed
accordingly;
1.2 "Open Market Rent" means the full open market rent without any
------------------
deductions whatsoever at which the Demised Premises might reasonably
be expected to be let in the open market with vacant possession at the
Relevant Review Date by a willing landlord to a willing tenant and
without any premium or any other consideration for the grant thereof
for a term equal to the greater of fifteen years or the residue then
unexpired of the Term granted by the within Lease and on the same
terms and conditions and subject to the same covenants and provisions
contained in this Lease (other than the amount of the rent payable
hereunder but including these provisions for the review of rent) and
having regard to other open market rental values current at the Review
Date in so far as the Surveyor (as defined in Clause 1.5 of this
Schedule) may deem same to be pertinent to the matters under
consideration by him and making the Assumptions but disregarding the
Disregarded Matters;
1.3 "the Assumptions" mean the following assumptions (if not facts) at the
-----------------
Relevant Review Date:-
1.3.1 that the Demised Premises are ready and available for immediate
occupation and use by the Tenant and may be lawfully used by any
person for any of the purposes permitted by this Lease;
1.3.2 that no work has been carried out to the Demised Premises by the
Tenant, any undertenant or their respective predecessors in
title during the Term, which has diminished the rental value of
the Demised Premises;
1.3.3 that if the Demised Premises or any part or parts of the
Building have been destroyed or damaged, they have been fully
rebuilt and reinstated;
1.3.4 that the Demised Premises are in a good state of repair and
decorative condition;
-1-
1.3.5 that all the covenants on the part of the Tenant contained in
this Lease have been fully performed and observed.
1.3.6 that the net lettable floor area of the Demised Premises is [ ]
unless the Demised Premises has been damaged or destroyed by the
Insured Risks and reinstated by the Landlord pursuant to the
obligations on its part in clause 6.3 hereof and on such
reinstatement the net lettable floor area (determined in
accordance with the Measuring Practice Notes of the Society of
Chartered Surveyors) is less.
NOTE: figures to be inserted in accordance with provisions of the Agreement for
Lease.
1.4 "the Disregarded Matters" mean:-
-------------------------
1.4.1 any affect on rent of the fact that the Tenant, any permitted
undertenant or their respective predecessors in title have been
in occupation of the Demised Premises or any part thereof;
1.4.2 any goodwill attaching to the Demised Premises by reason of the
business then carried on at the Demised Premises;
1.4.3 any increase in rental value of the Demised Premises
attributable to the existence at the Relevant Review Date, of
any works (otherwise than in pursuance of an obligation under
this Lease or any agreement therefor other than works executed
pursuant to clauses 4.16.3, 4.24 and 4.27) executed by or at the
expense of the Tenant (or any party lawfully occupying the
Demised Premises under the Tenant) with the consent of the
Landlord (where required under this Lease) in on or to the
Demised Premises or any part thereof;
1.4.4 the level of rent reserved by any under leases of the Demised
Premises
1.5 "the Surveyor" means an independent chartered surveyor who is
--------------
experienced in the valuation and leasing of property similar to the
Demised Premises and is acquainted with the market in the area in
which the Demised Premises are located, appointed from time to time to
determine the Open Market Rent pursuant to the provisions of this
Schedule;
1.6 "the President" means the President for the time being of the Society
---------------
of Chartered Surveyors and includes the Vice-President or any person
authorised by the President to make appointments on his behalf;
1.7 "Rent Restrictions" means the restrictions imposed by any statute for
-------------------
the control of rent in force on a Review Date or on the date on which
any
-2-
increased rent is ascertained in accordance with this Schedule and
which operate to impose any limitation, whether in time or amount, on
the collection of an increase in the rent first reserved by this Lease
or any part thereof.
1.8 "the Society of Chartered Surveyors" means the body so named at the
------------------------------------
date of this Lease including any other body established from time to
time in succession or in substitution for the said body or carrying
out the function currently carried out by the same
2. Upwards only rent review
------------------------
The rent first reserved by this Lease shall be reviewed at each Review Date
in accordance with the provisions of this Schedule and, from and including each
Review Date, the rent shall equal the higher of either the rent contractually
payable immediately before the Relevant Review Date or the Open Market Rent on
the Relevant Review Date, as agreed or determined pursuant to the provisions of
this Schedule.
3. Agreement or determination of the reviewed rent
-----------------------------------------------
The Open Market Rent at any Review Date may be agreed in writing at any
time between the Landlord and the Tenant but if, for any reason, they have not
so agreed, either party may (whether before or after the Relevant Review Date)
by notice in writing to the other require the Open Market Rent to be determined
by the Surveyor.
4. Appointment of Surveyor
-----------------------
In default of agreement between the Landlord and the Tenant on the
appointment of the Surveyor, the Surveyor shall be appointed by the President on
the written application of either party, such application to be made not earlier
than six (6) months before the Relevant Review Date.
5. Functions of the Surveyor
-------------------------
The Surveyor shall act as an arbitrator in accordance with the Arbitration
Acts 1954 to 1998 and within sixty (60) days of his appointment, or within such
extended period as the Landlord and the Tenant shall jointly agree in writing
but not, in any event, earlier than one month before the Relevant Review Date,
give to each of them written notice of the amount of the Open Market Rent as
determined by him.
6. Appointment of new Surveyor
---------------------------
If the Surveyor fails to give notice of his determination within the time
aforesaid, or if he dies, or is unwilling to act, or becomes incapable of
acting, or if, for any other reason, he is unable to act, either party may
request the President to discharge the Surveyor and appoint another surveyor in
his place to act in the same capacity, which
-3-
procedure may be repeated as many times as necessary (or in the circumstances
set out herein if the Surveyor shall have been appointed by agreement, either
party may terminate the appointment by notifying the other party and a
substitute may be nominated in accordance with the procedure herein set forth).
7. Interim payments pending determination
--------------------------------------
In the event that by the Relevant Review Date the amount of the reviewed
rent has not been agreed or determined as aforesaid (the date of agreement or
determination being herein called "the Determination Date",) then, in respect of
the period (herein called "the Interim Period") beginning with the Relevant
Review Date and ending on the day before the Quarterly Xxxx Day following the
Determination Date, the Tenant shall pay to the Landlord rent at the yearly rate
payable immediately before the Relevant Review Date, and within 7 days of the
Determination Date, the Tenant shall pay to the Landlord, on demand as arrears
of rent, the amount (if any) by which the reviewed rent exceeds the rent
actually paid during the Interim Period (apportioned on a daily basis) together
with interest thereon at the rate equivalent to the yield (at issue and before
deduction of tax if any) on the security of the Government last issued before
the Relevant Review Date from the Relevant Review Date to the date of actual
payment.
8. Rent restrictions
-----------------
On each and every occasion during the Term that Rent Restrictions shall be
in force, then and in each and every case:
8.1.1 the operation of the provisions herein for review of the rent
shall be postponed to take effect on the first date or dates
thereafter upon which such operation may occur, and
8.1.2 the collection of any increase or increases in the rent shall be
postponed to take effect on the first date or dates thereafter
that such increase or increases may be collected and / or
retained in whole or in part and on as many occasions as shall
be required to ensure the collection of the whole increase
AND until the Rent Restrictions shall be relaxed either partially or wholly
the rent reserved by this Lease (which if previously reviewed shall be the rent
payable under this Lease immediately prior to the imposition of the Rent
Restrictions) shall (subject always to any provision to the contrary appearing
in the Rent Restrictions) be the maximum Rent from time to time payable
hereunder.
9. Memoranda of reviewed rent
--------------------------
As soon as the amount of any reviewed rent has been agreed or determined,
memoranda thereof shall be prepared by the Landlord or its solicitors and
thereupon shall
-4-
be signed by or on behalf of the Tenant and the Landlord, and the Tenant shall
be responsible for and shall pay to the Landlord the stamp duty (if any) payable
on such memoranda and any counterparts thereof but the parties shall each bear
their own costs in respect thereof.
10. Time not of the essence
-----------------------
For the purpose of this Schedule, time shall not be of the essence.
-5-
FIFTH SCHEDULE
--------------
Maintenance and Services to be provided by the Management Company
-----------------------------------------------------------------
1. As often as may be required the Management Company shall cleanse repair,
renew (when the item is beyond economic repair), maintain and (when
reasonably necessary) decorate the whole of the Common Areas and the Car
Spaces and all structures thereon the Conduits, Utilities and Systems
therein which are not otherwise the direct responsibility of any tenant or
owner) and the accommodation necessary to house equipment and personnel
used for the maintenance operation and functioning of the Common Areas
excluding plant machinery apparatus equipment Conduits and Utilities
exclusively serving the Tenant or any other tenants or owners in the Plaza.
2. As often as shall be necessary and only where same are not otherwise the
responsibility of any tenants or owners in the Plaza the Management Company
shall maintain, cleanse, repair and (when beyond economic repair) renew all
electrical, mechanical and other plant equipment, chattels, signage, hard
and soft landscaping features, water features, lakes, rivers, balancing
ponds, fountains, weirs, water pumps and fittings of ornament and shrubs
and cultivations of every nature and all Utilities in use for common
benefit of the occupiers of the Plaza within or serving the Plaza (but
excluding any Utility exclusively serving the Tenant or any other tenants
or owners in the Plaza) and any fencing, gates, barriers or boundary walls
in or surrounding the Plaza.
3. The Management Company at its sole option may from time to time provide
such agent or agents and / or management personnel for the management of
the Plaza as it considers desirable having regard to the principles of good
estate management and in such event shall pay such agents' reasonable fees
(commensurate with those generally available in the open market) and Value
Added Tax thereon.
4. The Management Company shall provide for the cost of rates (if any) charged
on the Common Areas and any special costs which may be charged by the
Local Authority on the Plaza as a whole, together with water rates not
otherwise attributable to the Tenant or any other tenants or owners in the
Plaza.
5. The Management Company shall provide the maintenance, repairing, cleansing,
amending and where necessary (because the same are beyond economic repair,
renewing) or increasing all lighting and other systems for (a) the Car
Spaces and (b) open spaces within the Common Areas not let to tenants and
which are within the Plaza including those for roads, footpaths, parking
areas, landscaped and water covered areas and to include the area adjoining
the Plaza vested in the Commissioners of Public Works in Ireland (provided
approval to carry out works
-1-
to such area is granted from time to time by the Commissioners of Public
Works in Ireland.)
6. The Management Company shall, from time to time provide and discharge the
reasonable and proper costs of wages, and other costs for such other staff
engaged by the Management Company for the provision of the services
pursuant to the provisions of this Schedule.
7. The Management Company shall insure against damage by the Insured Risks to
the full reinstatement cost thereof of all plant, buildings, structures and
equipment in the Common Areas and including general service and inspection
contract policies in respect thereof and also in respect of third party
liability and property owners liability and any other risks (including
employers liability and all risks insurance) which the Management Company
deems prudent to insure against.
8. The Management Company shall provide any other services which may be
required by any public or local authority having power to require same to
include without prejudice to the generality of the foregoing provision for
maintenance, repairing, cleansing and amending the area adjoining the Plaza
vested in the Commissioners of Public Works in Ireland (provided approval
to carry out works to such area is granted from time to time by the
Commissioners of Public Works in Ireland.)
9. The Management Company may at its sole option provide for the cost of
taking all steps deemed desirable or expedient by the Management Company
for complying with and / or making representations or otherwise contesting
the incidence of the provision of any legislation or Order or statutory
requirements thereunder concerning town planning, public health, highways,
streets, drainage or other matters relating or alleged to relate to the
Common Areas for which the Tenant is not directly liable hereunder.
10. The Management Company shall use all reasonable endeavours to enforce any
of the covenants (which covenants are for the benefit of the Plaza
generally but not covenants for payment of rent but including payment of
the Plaza Service Charge) in the leases of any of the part or parts of the
Plaza and to use reasonable endeavours to recover the cost of such
enforcement from the defaulting party which shall be credited to the Plaza
Service Charge but without prejudice to this obligation such enforcement
costs shall form part of the Plaza Service Charge.
11. The Management Company shall from time to time provide for the Auditor's
and Surveyor's reasonable fees and Value Added Tax payable thereon and on
all services provided hereunder.
12. The Management Company shall operate, repair, maintain and (when same are
beyond economic repair, renew) the machinery and all electrical mechanical
and
-2-
other plant machinery apparatus and equipment chattels features and
fittings of ornament or utility in use for the common benefit of the Common
Areas and any reasonable or specialist service which in the opinion of the
Management Company seems desirable and including renewal and replacement
whenever necessary due to the relevant item being beyond economic repair.
13. The Management Company may at its sole option provide for periodic refuse
collection removal and disposal and the reasonable cost of any plant or
equipment for the treatment or packaging of same. In addition, the
Management Company shall provide for the reasonable and proper cost of
keeping all roads within the Common Areas clear of parked vehicles and
where necessary towing away such vehicles to such place as the Management
Company may consider appropriate.
14. The Management Company shall (except where agents have been retained
pursuant to paragraph 3) be entitled to charge an annual Management Fee
which shall be commensurate with reasonable rates chargeable in the open
market but not in any event more than twelve and one half per centum of the
annual Plaza Service Charge payable from time to time in respect of the
Plaza.
15. The Management Company may make provision for the cost of financing the
maintenance and services specified in this Schedule.
16. The Management Company may at its sole option make provision for such
reasonable expenses of a periodic or recurring nature as the Management
Company shall think fit together with a reasonable provision for forecast
expenditure having regard to the principles of good estate management.
17. The Management Company may at its sole option provide for the general
security (including the maintenance repair and (when necessary due to the
same being beyond economic repair, renewal) of any security system) of the
Common Areas.
Without prejudice to the generality of the foregoing, the Management
Company may provide manned or unmanned 24 hour security of the Common Areas
and may also provide the Systems or any part thereof to such parts of the
Common Areas as the Management Company considers appropriate in the
interest of maintaining security on the estate.
18. The Management Company may make provision for the cost of financing any
action to be taken by the Management Company and / or the Landlord pursuant
to clause 8.8.
19. The Management Company may at its sole option after due consultation with
the Tenant and the other tenants or owners in the Plaza provide for the
cost of providing such further services as are in the opinion of the
Management Company in accordance with the principles of good estate
management necessary for the
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comfort and convenience of the Tenant or the lessees of the Plaza generally
and their customers or for the amenity of the Plaza.
PROVIDED ALWAYS that notwithstanding anything contained in this Schedule,
the Tenant hereby acknowledges that the Management Company shall be entitled to
cease or not to provide any of the services itemised in this Schedule if any
maintenance and services shall in the opinion of the Management Company after
due consultation with the Tenant and the other tenants or owners in the Plaza
not be for the benefit or cease to be for the benefit of the Tenant or of the
Plaza or if any of the said services have become or shall have become, obsolete
or redundant due to technological change or otherwise.
-4-
SIXTH SCHEDULE
--------------
1.1 Covenant and indemnity by guarantor
-----------------------------------
The Guarantor hereby covenants with the Landlord, as a primary obligation, that
the Tenant or the Guarantor shall at all times during the Term (including any
continuation or renewal of this Lease by Visio International Limited) duly
perform and observe all the covenants on the part of the Tenant contained in
this Lease, including the payment of the rents and all other sums payable under
this Lease in the manner and at the times herein specified and the Guarantor
hereby indemnifies the Landlord against all claims, demands, losses, damages,
liability, costs, fees and expenses whatsoever sustained by the Landlord by
reason of or arising in any way directly or indirectly out of any default by the
Tenant in the performance and observance of any of its obligations under this
Lease or the payment of any rent and other sums arising before or after the
expiration or termination of this Lease.
1.2 Guarantor jointly and severally liable with tenant
--------------------------------------------------
The Guarantor hereby further covenants with the Landlord that the Guarantor is
jointly and severally liable with the Tenant (whether before or after any
disclaimer by a liquidator or trustee in bankruptcy) for the fulfilment of all
the obligations of the Tenant under this Lease and agrees that the Landlord, in
the enforcement of its rights hereunder, may proceed against the Guarantor as if
the Guarantor was named as the Tenant in this Lease.
1.3 Waiver by Guarantor
-------------------
The Guarantor hereby waives any right to require the Landlord to proceed against
the Tenant or to pursue any other remedy whatsoever which may be available to
the Landlord before proceeding against the Guarantor.
1.4 Postponement of claims by Guarantor against Tenant
--------------------------------------------------
The Guarantor hereby further covenants with the Landlord that the Guarantor
shall not claim in any liquidation, bankruptcy, composition or arrangement of
the Tenant in competition with the Landlord and shall remit to the Landlord the
proceeds of all judgments and all distributions it may receive from any
liquidator, trustee in bankruptcy or supervisor of the Tenant and to the extent
necessary to discharge the obligations of the Tenant to the Landlord shall hold
for the benefit of the Landlord all security and rights the Guarantor may have
over assets of the Tenant whilst any liabilities of the Tenant or the Guarantor
to the Landlord remain outstanding.
-1-
1.5 Postponement of participation by Guarantor in security
------------------------------------------------------
The Guarantor shall not be entitled to participate in any security held by the
Landlord in respect of the Tenant's obligations to the Landlord under this Lease
or to stand in the place of the Landlord in respect of any such security until
all the obligations of the Tenant or the Guarantor to the Landlord under this
Lease have been performed or discharged.
1.6 No release of Guarantor
-----------------------
None of the following, or any combination thereof, shall release, determine,
discharge or in any way lessen or affect the liability of the Guarantor as
principal debtor under this Lease or otherwise prejudice or affect the right of
the Landlord to recover from the Guarantor to the full extent of this guarantee:
1.6.1 any neglect, delay or forbearance of the Landlord in endeavoring to
obtain payment of the rents or any part or parts thereof and / or the
amounts required to be paid by the Tenant or in enforcing the
performance or observance of any of the obligations of the Tenant
under this Lease;
1.6.2 any refusal by the Landlord to accept rent tendered by or on behalf
of the Tenant at a time when the Landlord was entitled (or would
after the service of a notice under Section 14 of the 1881 Act have
been entitled) to re-enter the Demised Premises;
1.6.3 any extension of time given by the Landlord to the Tenant;
1.6.4 any variation of the terms of this Lease (including any reviews of
the rent payable under this Lease) or the transfer of the Landlord's
reversion or the assignment of this Lease;
1.6.5 any change in the constitution, structure or powers of either the
Tenant, the Guarantor or the Landlord or the liquidation,
administration or bankruptcy (as the case may be) of either the
Tenant or the Guarantor;
1.6.6 any legal limitation, or any immunity, disability or incapacity of
the Tenant (whether or not known to the Landlord) or the fact that
any dealings with the Landlord by the Tenant may be outside or in
excess of the powers of the Tenant;
1.6.7 any other act, omission, matter or thing whatsoever whereby, but for
this provision, the Guarantor would be exonerated either wholly or in
part
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(other than a release under seal given by the Landlord or a release or
determination pursuant to clause 1.9 of this Schedule).
1.7 Disclaimer or forfeiture of Lease
---------------------------------
1.7.1 The Guarantor hereby further covenants with the Landlord that:
1.7.1.1 if a liquidator or trustee in bankruptcy shall disclaim or
surrender this Lease; or
1.7.1.2 if this Lease shall be forfeited; or
1.7.1.3 if the Tenant shall cease to exist
THEN the Guarantor shall, if the Landlord by notice in writing given
to the Guarantor within six (6) months after such disclaimer or other
event so requires, accept from and execute and deliver to the Landlord
a new lease of the Demised Premises subject to and with the benefit of
this Lease (if the same shall still be deemed to be extant at such
time) for a term commencing on the date of the disclaimer or other
event and continuing for the residue then remaining unexpired of the
Term, such new lease to be at the cost of the Guarantor and to be at
the same rents and subject to the same covenants, conditions and
provisions as are contained in this Lease;
1.7.2 If the Landlord shall not require the Guarantor to take a new lease,
the Guarantor shall nevertheless upon demand pay to the Landlord a sum
equal to the rents and other sums that would have been payable under
this Lease but for the disclaimer, forfeiture or other event in
respect of the period (hereinafter called "the Relevant Period") from
and including the date of such disclaimer, forfeiture or other event
until the expiration of twelve (12) months therefrom or until the
Landlord shall have granted a lease of the Demised Premises to the
Guarantor or a third party or the Lease has been assigned or a new
lease granted as provided for in clause 1.7.3 (whichever shall first
occur) less any sums paid by the Tenant or the Guarantor in respect of
the Relevant Period.
1.7.3 In the event of a disclaimer or other event referred to in clause
1.7.1 (other than when the same shall have arisen due to the
liquidation or insolvency of the Guarantor) the Guarantor shall be
entitled to take an assignment of the Lease, in respect of which the
Landlord shall not withhold its consent, or to call upon the Landlord
to grant a Lease to the
-3-
Guarantor or, with the consent of the Landlord which shall not be
unreasonably withheld or delayed, to assign the Lease or call for the
grant of a new lease to a nominee of the Guarantor with a guarantee
from the Guarantor on the same terms as this guarantee, for the
residue of the term of the Lease on the same terms as herein contained
PROVIDED ALWAYS that the Guarantor hereby covenants with the Landlord
that in such event if the Guarantor shall assign the Lease to an
assignee who does not meet the Minimum Criteria the Guarantor shall
upon such assignment deliver to the Landlord a guarantee in respect of
the obligations of such assignee in the manner described in this
Guarantee (mutatis mutandis).
1.8 Benefit of guarantee
--------------------
This guarantee shall enure for the benefit of the successors and assigns of the
Landlord under this Lease without the necessity for any assignment thereof.
1.9 Release of Guarantee
--------------------
The obligation of the Guarantor hereunder shall be released where
1.9.1 the Tenant assigns the Lease with the Landlord's prior written
consent to an assignee who satisfies the "Minimum Criteria" or to an
assignee who is guaranteed by a party who meets the Minimum Criteria
(or in the case of an assignment to an assignee who meets the
Minimum Criteria or to an assignee who is guaranteed by a party who
meets the Minimum Criteria where a Court or other duly appointed
arbitrator has held that consent to assignment is or has been
unreasonably withheld and the assignee and, if applicable, the
guarantor complete the assignment) or, at any time after an
assignment the assignee or the guarantor of the assignee meets the
Minimum Criteria. For the purpose of this Lease the "Minimum
Criteria" shall be:-
1.9.1.1 The post tax profits of the assignee (or its guarantor where
such guarantor provides a guarantee to the Landlord in the
same terms as set out in this Sixth Schedule mutatis
mutandis) as shown in its audited accounts for the previous
three consecutive financial years is not less than three
times the Rent then reserved at 3.1. to 3.3 of the Lease
together with all rates and other outgoings then payable
hereunder; or
1.9.1.2 The assignee or any guarantor of the assignee is a
Government Body or agency ( which shall include for the
purpose of this
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clause the Industrial Development Authority or Forfas) or
the Office of Public Works (or any successor or replacement
of the Office of Public Works) on behalf of a Government
Body or the Government or Government Minister (in his
capacity as a Minister); or
1.9.1.3 The assignee or any guarantor of the assignee is a publicly
quoted company of more than 20 years standing and its
failure to meet the criteria in clause 1.9.1 hereof in any
one of the three consecutive financial years is due to a
solvent corporate re-organization where following such re-
organization, the net shareholders funds in the assignee are
not less than One Hundred Million pounds (100,000,000) and,
in expressing the assignee's borrowings as a percentage of
its shareholder funds, such percentage is not greater than
60%.
1.9.2 The surrender of the Lease by agreement with the Landlord or
1.9.3 The determination of the Lease pursuant to the Break Option Deed of
even date to this Lease made between the Landlord and the Tenant.
PRESENT when the Common Seal )
of NORWELL INVESTMENTS )
LIMITED was hereunto affixed: )
PRESENT when the Common Seal )
of VISIO INTERNATIONAL )
LIMITED in the presence of: )
------------------------------------
Director
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----------------------------------------
Director/ Secretary
PRESENT when the Common Seal )
of VISIO CORPORATION )
was hereunto affixed: )
----------------------------------------
Director
----------------------------------------
Director/ Secretary
PRESENT when the Common Seal )
of GC PLAZA MANAGEMENT )
LIMITED )
was hereunto affixed: )
Dated the ____ day of ____________, 199_
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