[XXXXXXX XXXX LOGO] CHANNOR LIMITED
First part
BLANCHARDSTOWN CORPORATE
PARK
Second Part
WORLDPORT IRELAND LIMITED
Third part
WORLDPORT COMMUNICATIONS
INC
Fourth part
25 Year Lease
O'Xxxxxx Xxxx,
Law Firm,
Pepper Canister House,
Mount Street Crescent,
Dublin 2
DATED THE DAY OF 2000.
CHANNOR LIMITED
ONE PART
BLANCHARDSTOWN CORPORATE PARK MANAGEMENT LIMITED
SECOND PART
WORLDPORT IRELAND LIMITED
THIRD PART
WORLDPORT COMMUNICATIONS INC
FOURTH PART
25 YEAR LEASE
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O'XXXXXX XXXX
PEPPER CANISTER HOUSE,
MOUNT XXXXXX XXXXXXXX,
XXXXXX 0.
1
THIS INDENTURE made the day of Two Thousand
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BETWEEN
1.1.1 CHANNOR LIMITED whose registered office is at 00 Xxxxxxxxxxxxxx Xxxx,
Xxxxxx 0 (hereinafter called "the Landlord" which expression shall
where the context so admits or requires include its successors and
assigns) of the One Part.
1.1.2 BLANCHARDSTOWN CORPORATE PARK MANAGEMENT LIMITED having its registered
office at 00 Xxxxx Xxxxxx Xxxxxx, Xxxxxx 2 (hereinafter called "the
Management Company") which expression shall where the context so admits
or requires include its successors and assigns) of the Second Part.
1.1.3 WORLDPORT IRELAND LIMITED having its registered office at 00/00
Xxxxxxxxxx Xxxxx, Xxxxxx 0 (hereinafter called "the Tenant" which
expression shall where the context so admits or requires include its
successors and permitted assigns) of the Third Part.
1.1.4 WORLDPORT COMMUNICATIONS INC having its registered office at ,
(hereinafter called "the Guarantor" which expression shall where the
context so admits or requires include its successors and permitted
assigns)
WITNESSETH
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2 DEFINITIONS
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In this Lease unless the context otherwise requires the following
expressions have the meaning assigned to them respectively that is to
say:-
2.1 "COMMENCEMENT DATE" means 3rd August 2000
2.2 "THE PARK" means ALL THAT the hereditaments and premises known as
Blanchardstown Distribution Park Blanchardstown Dublin 15 the present
boundaries of which are shown edged blue on Plan "A" annexed hereto and
which expression shall include all additions and extensions to the said
lands which are from time to time declared by the Landlord at his
discretion to form part of the Park for the purpose of this Lease and
which shall exclude those parts thereof which are from time to time
declared by the Landlord at his discretion not to form part of the Park
for the purposes of this Lease.
2.3 "TERM" means twenty five years from the 3rd day of August 2000.
2.4 "WORDS" importing the masculine gender only include the feminine gender
words importing the singular number only include the plural number and
vice versa.
2.5 "THE BASIC RENT" means IR(pound)494,586 per annum calculated on the
gross square footage of the premises being constructed on the Demised
Premises or such rent as shall be payable in consequence of the rent
review in pursuance of the Third Schedule hereto.
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2.6 "THE BASE RATE" means the three (3) month Dublin Inter Bank Offered
Rate (DIBOR) or its equivalent three (3) month European Inter Bank
Offered Rate (EURIBOR) as quoted by Allied Irish Bank Plc on the
Commencement Date
2.7 "COMMON AREAS" means those parts of the Park not for the time being let
or sold or intended to be let or sold and the said expression The
Common Areas shall include but without prejudice to the generality of
the foregoing all roads, bridges, pedestrian ways, water courses,
lakes, reservoirs, fountains, landscaped areas, recreational areas, and
other Common Areas on the Park together with all buildings and other
structures erected thereon together with all buildings and other
structures which are from time to time during the Term designated and
allocated for the time being and from time to time by the the Landlord
and/or the Management Company for the common use and benefit of such
persons and for the purpose of the passage of such goods and vehicles
as the Landlord and/or the Management Company may designate for the
time being and from time to time PROVIDED ALWAYS that if the Park shall
in any way be altered by extension or addition or otherwise then the
definition of "the Common Areas" shall as and where necessary be
modified accordingly.
2.8 "THE DEMISED PREMISES" means the premises demised and referred to more
particularly in the First Schedule hereto and includes the rights
granted by this Lease.
2.9 "EXTERNAL DECORATING YEARS" the year ending the 3rd day of August 2005
and thereafter every fifth year.
2.10 "INTERNAL DECORATING YEARS" the year ending the 3rd day of August 2003
and thereafter every third year.
2.11 "THE MANAGEMENT COMPANY AGREEMENT" means the Agreement entered into
between the Landlord and the Management Company, dated the 20th of
November, 1998.
2.12 "UTILITIES" mean water, water tanks, soils and waste of all kinds, gas,
electricity, telephone and other communication systems, telegraphic,
fire fighting and fire prevention systems and equipment refuse,
disposal systems and other services.
2.13 "THE CONDUITS" mean gutters, gullies, pipes, drains, sewers,
watercourses, channels, trunks, ducts, flues, wires, cables and other
conducting media.
2.14 "TOWN PLANNING ACTS" shall be deemed to include the Local Government
Planning and Development Act 1963 and any Act or Acts for the time
being in force amending extending or replacing the same and any Orders
Regulations or Directions issued under or by virtue of the said Acts of
the Oireachtas for the time being in force amending or replacing same.
Reference to any other Acts of the Oireachtas shall where necessary or
appropriate be deemed to include any Act amending, extending or
replacing the same and any Orders or regulations made thereunder or
under any such amending extending or replacing Acts.
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2.15 "INSURED RISKS" means all or any loss or damage or prospective loss or
damage by fire, flooding, water, xxxxx, xxxxxxx, lightning, explosion,
earthquake, weather conditions, impact of aircraft and articles dropped
therefrom civil commotion, riot, affray, civil disturbance, war,
revolution, subsidence and acts of terrorism and such further risks,
perils to or in connection with the Demised Premises and the fixtures
and fittings thereof and any such fees, expenses, charges and monies of
and incidental to the rebuilding, reinstatement or loss (whether total
or otherwise) of the Demised Premises or any part thereof as the
Landlord may from time to time reasonably deem it desirable to insure
against including but not by way of exception
2.15.1 Loss of three years rent from time to time payable out of the
Demised Premises.
2.15.2 All expenditure or anticipated expenditure in demolition and
clearance of the Demised Premises.
2.15.3 A sum equivalent to 15% of the full replacement and
re-instatement value of the Demised Premises (determined in
the manner hereinafter provided) in respect of architects,
quantity surveyors, engineers, legal and other professional
and consultancy fees.
2.16 "REVIEW DATE" means the first day of the sixth year of the Term of
calculated from the Commencement Date and thereafter every fifth
anniversary of the first Review Date during the Term.
2.17 "THE COMMON AREAS SERVICE CHARGE" means the aggregate of the cost
expenses and outgoings paid, properly and reasonably incurred or borne
or to be paid incurred or borne (including any Value Added Tax) as set
forth in Part II of the Fourth Schedule hereto by the Landlord until
the transfer of the freehold reversion to the Management Company, and
thereafter by the Management Company in discharging the obligations,
executing the works and providing the services, amenities and
facilities specified in Part I of the Fourth Schedule hereto or all or
any of them pursuant to the Landlords and/or Management Company's
covenant in that behalf contained at Clause 6 of this Lease.
2.18 GUARANTOR means the party or patties named as "Guarantor" at the
commencement of this Lease and includes the successors in title of the
Guarantor and, in the case of an individual, includes his personal
representatives.
3 INTERPRETATION
3.1 Where two or more persons are included in the expression "the
Landlord", "the Tenant", or "the Guarantor", such expressions
include all or either or any of such persons and the covenants
which are expressed to be made by the Landlord, the Tenant or
the Guarantor shall be deemed to be made by or with such
persons jointly and severally.
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4 DEMISE
L. IN consideration of the rent covenants and conditions hereinafter
reserved and contained and on the part of the Tenant to be performed
and observed the Landlord hereby demises unto the Tenant the Demised
Premises TOGETHER WITH the rights specified in the First Schedule
hereto.
4.1 EXCEPTING AND RESERVING unto the Landlord and/or the Management
Company, as the case may be the rights specified in the Second Schedule
hereto TO HOLD the same excepting and reserving as aforesaid for the
Term from the Commencement Date YIELDING AND PAYING therefor and there
out during each of the first five years of the Term of the Lease the
Basic Rent payable quarterly in advance on the 1st day of January, the
1st day of April, the 1st day of July and the 1st day of October and
thereafter during each and every year of the residue of the Term hereby
granted after giving to the Tenant written notice of its intention to
revise the rent not more than 6 months before and not later than 6
months after the relevant Review Date (time being of the essence) such
revised rent as may from time to time be ascertained in accordance with
the provisions in that behalf contained in the Third Schedule hereto
and all payments to be made to the Landlord's Bank Account at Allied
Irish Bank, 00 Xxxxxxx Xxxxxx, Xxxxxx 0 Account Number 00000000, sort
code 93-12-33 or such account as the Landlord may direct AND ALSO
PAYING to the Landlord and/or the Management Company as the case may be
the contributions hereinafter mentioned on demand, such contributions
to be recoverable by action for rent in arrears.
If the Tenant shall fail to pay the rent hereinbefore reserved or any
other sum reserved or made payable hereunder within twenty one days of
the date and in the manner herein prescribed for the payment of same
such unpaid rent or sum shall bear interest from and including the
thirty first day after the day or days on which the same shall become
due to the date of actual payment at a rate which shall be the Base
Rate plus 4% which interest shall be recoverable by and be subject to
all the rights and remedies of the Landlord for the recovery of rent
5 TENANTS COVENANTS
AND THE TENANT HEREBY COVENANTS with the Landlord in the manner
following, that is to say :-
5.1 RENT
To pay the Basic Rent or increased rent hereby reserved and made
payable at the times and in the manner at and which the same is hereby
reserved and made payable without deduction (save as permitted by law)
5.2 INSURANCE PREMIUM
To pay the premium paid by the Landlord for the insurance of the
Demised Premises in accordance with the Landlords covenants herein
contained.
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5.3 RATES
To pay all rates on the Demised Premises together with all buildings
thereon.
5.4 SERVICE CHARGE
Yearly and so in proportion for any part of a year by way of further or
additional rent to pay to the Landlord or the Management Company, as
the case may be, the Common Areas Service Charge which shall be per
centum per annum of the Common Areas Service Charge, or such other per
centum per annum as may be substituted therefore in the event of the
Park or any part thereof being altered, added to, extended, reduced or
re-developed or otherwise varied. The Common Areas Service Charge and
the Tenant's proportion thereof as provided above shall, at the
discretion of the Landlord/Management Company, be adjusted in such
manner as shall be just and equitable. Any dispute concerning such
adjustment of the Tenant's proportion of the Common Areas Service
Charge shall be resolved in accordance with Clause 9.4
5.5 REPAIR
To repair and maintain the exterior and interior of the Demised
Premises and every part thereof together with all drains, water, gas
and other pipes, lights, signs, electric installations, sanitary and
water apparatus and things within or appertaining to the Demised
Premises in good and substantial order repair and condition and in the
like condition to yield up the same at the expiration or sooner
determination of the demise provided always that the Tenant shall not
be liable for damage caused by any of the Insured Risks unless the
relative policy or policies of insurance shall have been rendered void
or voidable or payment of the whole or any part of the insurance monies
in respect thereof shall have been refused in consequence of some act
or default on the part of the Tenant or the employees, servants,
agents, licensees or invitees of the Tenant and provided further that
the Tenant shall not be liable to put the Demised Premises in any
better state of repair or condition than that in which they are now to
be found.
5.6 WASTE
5.6.1 Not to allow to pass into the drains, mains or pipes serving
the Demised Premises any noxious or deleterious effluent or
other substance which may cause an obstruction or injury and
forthwith to make good such obstruction or injury.
5.6.2 To reimburse the Landlord, and/or Management Company the cost
of clearing all mains or pipes stopped up by the acts or
neglect of the Tenant.
5.7 CLEANING
5.7.1 At all times during the Term to keep the Demised Premises in a
clean and tidy condition and clear of all rubbish and to clean
as often as may be requisite the inside and outside of the
window panes and frames of the Demised Premises and all the
glass (if any) in the entrance doors thereto.
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5.7.2 In each of the External Decorating Years and in the last year
of the Term to redecorate the exterior of the Demised Premises
and in each of the Internal Decorating Years and in the last
year of the Term to redecorate the Interior of the Demised
Premises in both instances in a good and workmanlike manner
and with appropriate materials of good quality and to the
reasonable satisfaction of the Landlord. Any change in the
tints, colours and patterns of such decoration to be approved
by the Landlord, such approval not to be unreasonably withheld
or delayed, provided that the covenants relating to the last
year of the Term shall not apply where the Tenant shall have
performed the obligation in question less than eighteen months
prior to the expiry of the Term.
5.7.3 To keep all refuse and rubbish in a container or containers of
a kind and in the location specified by the Landlord and/or
Management Company or his/its agents and if the Local
Authority shall not provide a service for the collection
thereof to arrange for collection in the manner and at times
and places specified by the Landlord and/or Management Company
or its agents for the collection of refuse and not to burn any
refuse or rubbish of any kind in or about the Demised
Premises.
5.8 STATUTORY OBLIGATIONS
To comply with all obligations imposed under or by virtue of any Acts
of the Oireachtas for the time being in force and so to execute or
cause to be done and executed all such works, acts, deeds, matters and
things as under or by virtue of any such Act or Acts or by any District
Council, Local or Public Authority are or shall be properly executed
upon or in respect of the Demised Premises or any part thereof whether
by the owner Landlord, Tenant or occupier and in particular but without
prejudice to the generality of this clause to comply with all the
obligations imposed under or by virtue of the Office Premises Act 1958
and the Factories Act 1955 or any enactment amending or replacing same
and at all times to indemnify the Landlord against all proceedings,
costs, penalties, claims demands and liability in respect thereof.
5.9 YIELD UP
To yield up the Demised Premises unto the Landlord in such a state and
condition as shall in all respects be consistent with a full and due
performance by the Tenant of the covenants and conditions herein
contained at the expiration or sooner determination of the Term
together with all the keys thereof and all fixtures of every kind in or
upon the Demised Premises of which during the Term may be affixed or
fastened to or upon the same, except the Tenant's furnishings and trade
fittings such Tenant's furnishings and trade fittings having previously
been removed and all damage occasioned by such removal having been made
good.
5.10 ALTERATIONS
5.10.1 Save as provided in sub clause 5.10.4 of this clause not at
any time during the Term without the previous consent in
writing of the Landlord, such consent not to be unreasonably
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withheld or delayed, (demountable partitions excepted) and
except in accordance with the plans and specifications
previously submitted to and approved by the Landlord, such
approval not to be unreasonably withheld OR delayed, to erect
any additional building upon the Demised Premises nor to make
or suffer to be made any alteration or addition whatsoever in
or to the Demised Premises or remove or injure or to suffer to
be removed or injured any of the principal walls, windows,
timbers, girders, iron or steel work ceilings, roofs, floors,
tiles thereof or make any alterations in the plan or elevation
of any of the building for the time being in or on the Demised
Premises either internally or externally provided always that
the Landlord may as a condition preceding any consent under
this clause require the Tenant to enter into such covenants
with the Landlord as the Landlord shall reasonably require in
regard to the execution of any alteration or addition to the
Demised Premises (save for any mezzanine flooring installed by
the Tenant) approved by the Landlord such approval not to be
unreasonably withheld or delayed and the re-instatement
thereof at the determination of the Lease or otherwise in
connection with any application for the Landlord's approval or
consent under this clause and to pay the Landlord's
architect's or surveyor's proper and reasonable costs relating
thereto, if such consent is granted.
5.10.2 On the request in writing of the Landlord or his agent
forthwith to pull down and remove any building, erection,
alteration or addition erected, placed or made in material
breach of any of the foregoing covenants and if any portion of
the Demised Premises has been altered pulled down or removed
in material breach of any of the foregoing covenants upon such
request in writing as herein provided forthwith to amend
restore replace or rebuild the Demised Premises according to
the original plans.
5.10.3 Not to place or affix on the front of the Demised Premises any
water ventilating or other pipe or apparatus and not to alter
cover up or change any of the architecture or architectural
decorations or the external colour of the buildings or to make
any addition temporary or otherwise to any of such buildings
either in height or projection without in every case obtaining
the prior consent in writing of the Landlord, such consent not
to be unreasonably withheld or delayed.
5.10.4 Tenant's Works: The Landlord hereby consents to the carrying
out and completion of the Tenant's Works (being works carried
out by and at the expense of the Tenant as set out in the
Sixth Schedule) and agrees that the Tenant's Works are and
shall remain the property of the Tenant and shall be
disregarded for the purposes of reviews of rent provided for
in this Lease.
5.11 SIGNS AND POSTER
Not to paint, place, attach or exhibit or suffer to be painted, placed,
attached or exhibited on the exterior of the Demised Premises any
inscription, bill, sign, blind, sign board, facia or advertisement or
other item (except such as shall have been previously approved by the
Landlord), such approval not to be unreasonably withheld or delayed.
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5.12 UNAUTHORISED USE
Not to hold permit or suffer to be held on the Demised Premises any
sale by auction or public exhibition or public show or spectacle or
political meetings or gambling and not to carry on or use or permit the
Demised Premises to be used for any purpose which is in the reasonable
opinion of the Landlord a noisy, noise some, offensive or dangerous
trade manufacture business or occupation nor for any illegal or immoral
purpose nor, to do or suffer to be done on the Demised Premises any act
or thing whatever which in the reasonable opinion of the Landlord may
be or tend to become a nuisance, damage or disturbance to the prejudice
of the Landlord or to the owners or occupiers of any adjoining or
neighbouring premises or any of them.
5.13 PERMITTED USE AND CHANGE OF USE
Not to use or permit the Demised Premises to be used otherwise than as
a telecommunications facility (which may incorporate co-location,web
hosting and similar facilities) or for such other use as the Landlord
may consent to in writing, such consent not to be unreasonably withheld
or delayed PROVIDED NEVERTHELESS that the Landlord shall be entitled to
withhold such consent if the Landlord considers that:
5.13.1 The change of the user would substantially increase the rate
of insurance in respect of the Demised Premises unless the
Tenant agrees to pay the increased insurance premium, or
5.13.2 The alternative user would not be in the interests of good
estate management of the Park.
Any dispute concerning a refusal of such consent or the imposition of
conditions to such a consent which refusal or conditions are based on
sub-clause 5.13.1 or 5.13.2 ,both of them shall be resolved in
accordance with Clause 9.4.
5.14 OBSERVE PROVISIONS AS TO DANGEROUS MATERIALS
Not to do or omit or suffer to be done or omitted any act matter or
thing on the Demised Premises or to use the same in any way or bring in
or store or permit to be placed on the Demised Premises any goods of an
inflammable, combustible or dangerous nature which may render the
Landlord liable to pay in respect of the Demised Premises and/or the
Management Company in respect of the Park or any part thereof more than
the present rate of premium for insurance effected by the Landlord
under the Landlord's covenants in clause 6 hereof unless the Tenant
elects to pay such insurance premium or which may make void or voidable
any policy for such insurance and (without prejudice to the Landlord's
right of action in respect of breach of the covenants of this Lease) to
repay to the Landlord on demand all sums incurred by it by way of
increased premium and all expenses suffered in consequence of a breach
of the provisions contained in this subclause.
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5.15 TO GIVE NOTICE OF DAMAGE BY INSURED RISKS
In the event of the Demised Premises or any part thereof being
destroyed or damaged by any of the Insured Risks to give notice thereof
to the Landlord as soon as the destruction or damage shall come to the
notice of the Tenant.
5.16 NOTICE
To permit the Landlord or his agents, on giving forty eight hours prior
notice in writing (except in the case of an emergency) to enter at all
reasonable times and at a time agreed and accompanied (if required by
the Tenant) by a representative of the Tenant between the parties
hereto for the purpose of inspecting the condition of the Demised
Premises and at the Tenant's expense make good all defects or want of
reparation therein found for which the Tenant is responsible pursuant
to the foregoing provisions within such time as the Landlord may
reasonably require in the light of the extent, scale and urgency of the
works required after notice thereof shall be given or left upon the
Demised Premises and if the Tenant shall make default in carrying out
said repairs within the time aforesaid it shall be lawful for the
Landlord to enter upon the Demised Premises and to repair or remedy the
same at the expense of the Tenant in accordance with the covenants and
provisions of this Lease and the reasonble and proper expense of such
repairs or remedial works shall be repaid by the Tenant to the Landlord
on demand.
5.17 PLANNING ACTS
In relation to the Planning Acts (by which expression it is intended
herein to designate the Local Government (Planning and Development)
Acts 1963 to 1995, hereinafter referred to as "the Planning Acts") and
any statutory modification or re-enactment thereof for the time being
in force and any Regulations or Orders made or having effect
thereunder):-
5.17.1 Not to do or permit or suffer to be done or omitted anything
on or in connection with the Demised Premises, the doing or
omission of which shall be a contravention of the Planning
Acts or of any notices, orders, licenses, consents,
permissions or conditions (if any) served, made, granted or
imposed thereunder or under any enactment repealed thereby and
to indemnify 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 applications for Planning Permission and the
works and things done in pursuance thereof.
5.17.2 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 this Agreement or otherwise in the event of
permissions from the Planning Authority under the Planning
Acts being necessary for the said erection, addition,
alteration of user thereof to apply at the cost of the Tenant
to the Planning Authorities for all consents and permissions
which may be required in connection therewith and to give
notice to the Landlord of the granting of such consents and
permissions forthwith on receipt thereof PROVIDED ALWAYS that
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no application for permission or for consent for change of
user shall be made without the prior written consent of the
Landlord, such consent not to be unreasonably withheld or
delayed.
5.17.3 In the event of the said Planning Authority agreeing to grant
the desired Planning Permission with modifications or subject
to conditions to give the Landlord forthwith full particulars
of such modifications or such conditions AND if such
modifications or such conditions shall in the reasonable
opinion of the Landlord be undesirable on the grounds that
they adversely affect the Landlord's reversion in the Demised
Premises then unless it shall be decided otherwise or on
arbitration as hereinafter provided the Tenant shall not
proceed with the works or change of user to which the
application related.
5.17.4 To give notice forthwith to the Landlord of any notice order
or proposal for notice or order served on the Tenant under the
Planning Acts and if so required by the Landlord to make or
join in making such reasonable objections or representations
in respect of any proposal as the Landlord may require.
5.17.5 To comply at its own cost with any notice or order served on
the Tenant under the provisions of the Planning Acts in
relation to the Demised Premises.
5.17.6 If and when called upon to do so, to produce to the Landlord
or his surveyor all such plans, documents and other evidence
as the Landlord may reasonably require in order to satisfy
himself that the provisions of this sub clause have been
complied with in all respects.
5.18 NUISANCE
Not to use the Demised Premises or permit same to be used in
such a way as to become a danger, nuisance or annoyance or
cause damage to the Landlord, its Tenants or occupiers of
adjoining or neighbouring premises.
5.18.1 Not to use or permit or suffer to be used any part of
the Demised Premises as a residence nor as a sleeping
place for any person.
5.18.2 Not to keep or allow to remain in or upon the Demised
Premises any animal.
5.19 NOT TO OVERLOAD THE FLOOR AREAS
Not to install upon the Demised Premises any machinery or safe or other
heavy object which could in the reasonable opinion of the Landlord
place an unfair strain or unfair load on the floors thereof or
otherwise overload the said floors in excess of 50 kn/square metres.
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5.20 TO TAKE FIRE PRECAUTIONS
Not to obstruct the fire hydrant connections, fire hoses, fire exits
and approaches of the Demised Premises.
5.21 RELETTING BOARDS
To allow the Landlord to display re-letting notices on the Demised
Premises nine months before the expiration of the Lease or sooner
determination and to permit prospective tenants (unless the Tenant has
expressed its intention to exercise it's statutory rights to renew this
Lease) or prospective purchasers to view the Demised Premises by
previous appointment at all reasonable hours during the daytime without
interruption PROVIDED THAT the security requirements of the Tenant are
complied with and that the Tenant's use and enjoyment of the Demised
Premises are not materially interfered with.
5.22 ALIENATION
5.22.1 Not to assign, underlet, sub-let or part with the possession
of the whole or part of the Demised Premises without the
previous written consent of the Landlord, which shall not be
unreasonably withheld or delayed, provided that in the case of
assignment to a limited liability company, and where the
Landlord is reasonably of the opinion that the said Company is
not of sufficient financial substance to pay the rent reserved
by this Lease and perform and comply with the covenants and
conditions in this Lease, the Landlord shall be entitled to
require an acceptable guarantor to enter into a direct
covenant with it to perform and observe the covenants and
conditions of this Lease and within fourteen days of every
such assignment or underletting or parting with possession to
furnish the Landlord with a true copy of the appropriate deed
and to pay the Landlord's Solicitors their reasonable costs in
connection with the consent and the approval of such deed and
PROVIDED FURTHER that the Tenant shall not be entitled to make
more than four sublettings of the Demised Premises at any one
time.
5.22.2 The Tenant shall prior to any such assignment apply to the
Landlord and give all reasonable information concerning the
proposed transaction and concerning the proposed assignee or
under Tenant as the Landlord may require.
5.22.3 To pay all reasonable legal costs and surveyors fees incurred
by the Landlord attendant upon or incidental to every
application made by the Tenant for a consent, approval or
licence hereinbefore required or made necessary if granted or
proffered subject to any lawful qualifications or conditions
or whether the application be withdrawn.
5.22.4 The Landlord's consent to any such assignment shall be given
in writing and the Tenant shall pay the reasonable costs in
connection with such consent.
5.22.5 In the case of an under lease same shall be at the then
current market rent without any deduction whatsoever and
without a fine or premium and the undertenant shall if
required by the Landlord enter into a direct covenant with the
Landlord to perform and observe all the covenants (other than
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that for payment of the rent hereby reserved) and conditions
herein contained and every such underlease shall also be
subject to the following conditions that is to say, it shall
contain:-
5.22.6 an unqualified covenant on the part of the undertenant not to
underlease or part with or share the possession of the whole
or the part of the Demised Premises thereby demised.
5.22.7 a covenant on the part of the undertenant not to assign the
Demised Premises thereby demised without obtaining the
previous consent in writing of the Superior Landlords under
the Landlord's lease (if any) and of the Landlord.
5.22.8 covenants and conditions in such similar terms as
circumstances admit to those contained in this Lease save such
alterations as may be appropriate in the case of any sub-lease
not exceeding four years and ninE months which may be
permitted by the Landlord under the provisions of this Lease.
5.22.9 PROVIDED ALWAYS that notwithstanding provisions of this Clause
5.22, the Tenant shall be entitled without obtaining the prior
written approval of the Landlord to assign this Lease or to
sublease the Demised Premises to any other Group Company or to
permit such a Group Company only as long as such company
remains a Group Company to share occupation of that whole or
any part of the Demised Premises on condition that:-
(a) the Tenant gives the Landlord immediate
notice in writing of the name of the Group
Company, its relationship to the Tenant and,
in the case of a sublease or sharing of
possession, the area occupied, the date of
occupation and the date of vacation; and
(b) in the case of a sublease or sharing of
possession, the Tenant procures (and
covenants to this effect) that the Group
Company shall vacate the Demised Premises
immediately upon the termination of the term
or the date on which such company ceases to
be a Group Company;
(c) the Guarantee of the Guarantor shall remain
in full force and effect and the Guarantor
shall not be released from its obligations
under clause 8 by virtue of the exercise by
the Tenant of its rights to assign or sublet
to or share possession with Group Companies.
"Group Company", means any body corporate which is
holding or subsiduary company of the Tenant. For the
purposes of this definition, the expressions "holding
company" and "subsidiary" shall have the same
meanings respectively as they have in Section 155 of
the Companies Act, 1963.
5.22.10 The Tenant shall be permitted, in relation to its
permitted user of the Demised Premises, to enter into
co-location agreements with its customers in order to
13
licence such customers to use areas within the
Demised Premises for the installation of certain
equipment and the provision of services to such
customers without the requirement for obtaining
Landlord's use therein contained PROVIDED HOWEVER AND
THE TENANT HEREBY COVENANTS WITH THE LANDLORD that no
relationship of landlord and tenant shall be created
with any party arising from the implementation of the
provisions of this Clause and the Tenant HEREBY
INDEMNIFIES the Landlord against any such rights
accruing to any party under this Clause. The
provisions of this Clause shall be personal to the
Tenant and to Group Companies and shall not be
assignable save to Group Companies in accordance with
an assignment peritted under clause 5.22.9.
5.22.11 "Subject to the Landlord's consent (such consent not
to be unreasonably withheld or delayed) the Tenant
may assign the Lease to an entity which is acquiring
all or substanially all the business assests of the
Tenant"
5.23 LANDLORDS COSTS
5.23.1 To pay to the Landlord all reasonable costs, charges and
expenses (including legal costs and fees payable to a
surveyor) which may be incurred by the Landlord in or in
contemplation of any proceedings under Section 14 of the
Conveyancing and Law of Property Act 1881 or any section or
sections of any amending or substituted Act.
5.23.2 To pay to the Landlord all reasonable costs, charges and
expenses (including legal costs and fees payable to a
surveyor) which may be incurred by the Landlord in connection
with and incidental to the service of all notices and
schedules relating to want of repair to the Demised Premises
and whether served during or after the expiration or sooner
determination of the Term hereby granted (but relating in all
cases to such wants of repair that accrued not later than the
expiration or sooner determination as aforesaid).
5.24 PAY STAMP DUTY / VALUE ADDED TAX
To pay the Stamp Duty on this Lease and the counterpart thereof and
registration fees (if any) to pay and discharge all Value Added Tax
payable (if any) in respect of the granting of this Lease or any such
Lease or Leases granted hereunder or upon any rent or other sums
payable hereunder, or the Tenant may elect to adopt the Value Added Tax
Form 4A procedure in relation to Value Added Tax payable (if any) in
respect of the granting of this Lease.
5.25 INDEMNIFY LANDLORD
5.25.1 To indemnify and keep indemnified the Landlord from any
liability in respect of any injury to or death of any person,
damage to any property moveable or immoveable by reason of or
arising directly or indirectly out of the repair, state of
repair or condition of the Demised Premises or any alterations
to or the user hereinbefore permitted of the Demised Premises
14
and from all proceedings, costs, claims and demands of
whatsoever nature in respect of any such liability.
5.25.2 Fully and effectually to indemnify the Landlord against any
reasonably forseeable breach, non performance or non
observance by the Tenant of any of the covenants actions,
proceedings, costs, damages, expenses, claims and demands
whatsoever or howsoever arising in respect of or as a
consequence (whether direct or indirect) and conditions on the
Tenants part herein contained or of the provisions or
stipulations herein contained and intended to be performed and
observed by the Tenant PROVIDED THAT the Landlord shall have
taken all reasonable steps to mitigate its loss of any such
breach, non performance or non observance as aforesaid.
5.25.3 To pay to the Landlord all reasonable costs, charges and
expenses which may be incurred by the Landlord in abating a
nuisance on or arising from the Demised Premises and executing
all such works as may be necessary for abating such a nuisance
in obedience to a notice served by a Local or Public
Authority.
5.26 EASEMENTS
Save as permitted by clause 5.10.4 not to obstruct or suffer to be
obstructed any of the windows, lights or ventilators belonging to the
Demised Premises or to permit any new window, light, ventilator
passage, drainage or other encroachment or easement to be made into
against or over the Demised Premises or any part thereof and in case
any encroachment or easement whatsoever shall be attempted to be made
or acquired by any person or persons whomsoever to give notice thereof
in writing to the Landlord immediately, the same shall come to the
notice of the Tenant and at the cost of the Tenant to do all such
things as may be proper for preventing any new encroachment or easement
being made or acquired.
5.27 INSURANCE
In the event of the Demised Premises or any part thereof being
destroyed or damaged by any of the Insured Risks and the insurance
money under any insurance against the same effected or procured to be
effected thereon by the Landlord being wholly or partly irrecoverable
by reason solely or in part of any act or default of the Tenant then
and in every such case the Tenant will forthwith (in addition to the
said rent) pay to the Landlord the whole or (as the case require) a
fair proportion of the cost (including professional and other fees) of
completely rebuilding and reinstating the same
5.27.1 To obtain Public Liability insurance over the Demised
Premises.
6 LANDLORDS COVENANTS
6.1 INSURANCE
AND THE LANDLORD COVENANTS with the Tenant as follows:-
15
(a) Subject to the necessary insurance cover being available from a
reputable insurance company on the insurance market in the Republic of
Ireland to effect insurance at economically competitive rates
(procuring waiver from the Insurers of subrogation rights against the
Tenant) all times throughout the said Term (and the Landlord shall
notify the Tenant of any material changes in the policy) in a sum not
less than the full reinstatement cost (to be determined from time to
time by the Landlord) the premises and all additions and fixtures of an
insurable nature including additions and fixtures (other than those
which the Tenant or other tenants are entitled to remove) made by the
Tenant or other tenants in accordance with the provisions of this Lease
against loss or damage by the Insured Risks and to produce to the
Tenant on demand the policy or policies of such insurance and the
receipt for the current premiums.
PROVIDED
--------
(1) that the Landlord shall procure that all monies received from the
Tenant as insurance contributions are applied towards the payment of
the insurance premium in respect of the premises;
(2) that in case the Demised Premises or any part thereof shall from time
to time be destroyed or damaged by any of the Insured Risks then
provided insurance cover against such perils has been obtained as
aforesaid (and subject to the previous compliance by the Tenant with
the provisions of Clause 5.2 hereof) the Landlord shall take such steps
as may be requisite and proper to obtain any necessary planning
permission, fire safety certificate and other consents under any
regulations or enactment for the time being in force to enable the
Landlord to rebuild and reinstate same and will, as soon as such
planning permission, fire safety certificate and other consents have
been obtained rebuild, reinstate, replace and make good the same. The
Landlord will at all convenient speed take such steps as may be
requisite and proper to obtain any Planning Permission or other permits
and consents that maybe required under the Planning Acts or other
Statute for the time being in force to enable the Landlord to rebuild
and reinstate the Demised Premises and will as soon as these have been
obtained, spend and layout all the insurance monies received by the
Landlord (except sums in respect of loss of rent) in rebuilding or
reinstating such part or all of the Demised Premises so damaged or
destroyed, making up any difference between the cost of rebuilding and
reinstating and the monies received out of the Landlord's own money
provided that the Landlord shall not be liable to rebuild or reinstate
any part of the Demised Premises in respect of which the Landlord is
unable (having used all reasonable endeavours) to obtain all Planning
Permission, permits and consents necessary to execute such rebuilding
and reinstating then the Landlord shall be entitled to retain all the
insurance monies received by the Landlord.
(b) If after the commencement of the said Term the Demised Premises or any
part thereof shall be destroyed or damaged by any of the insured perils
so as to be unfit for occupation or use by the Tenant for the purpose
of its business at the Demised Premises and the policy or policies of
insurance effected by the Landlord shall not have been vitiated or
payment of the policy monies refused in whole or in part in consequence
of any act or default of the Tenant the rent hereby reserved or a fair
proportion thereof according to the nature and extent of the damage
16
sustained shall be suspended until the Demised Premises shall have
again been rendered fit for occupation or use by the Tenant.
PROVIDED THAT if any question shall arise whether the Demised Premises
or any part thereof shall have been destroyed or damaged by or by
reason of fire or any other insured risk so as to interfere with the
beneficial occupation thereof within the aforesaid proviso or what
proportion of rent ought to be allowed to the Tenant on account thereof
such question shall be referred to some practising Chartered Surveyor
to be agreed by the Landlord and Tenant or in default of agreement to
be nominated by the Chairman or acting Chairman for the time being of
the Society of Chartered Surveyors of Ireland and the decision of such
Chartered Surveyor shall be final and conclusive and in so deciding
such Chartered Surveyor shall be deemed to be acting as an arbitrator
not as an expert and accordingly the laws relating to arbitration shall
apply and all fees and expenses of such Chartered Surveyor shall be
borne by the Tenant.
AND FURTHER PROVIDED THAT if the Demised Premises or any part thereof
is not reinstated after three (3) years following its destruction the
Tenant will then be entitled to terminate this Lease by serving on the
Landlord written notice of its intention so to do whereupon the Lease
shall be at an end have no further force or effect but without
prejudice to any claim of either party arising from the antecedent
breach by the other for the covenants on its part or the conditions in
this Lease contained
(c) That the Tenant paying the rent or increased rent for the Demised
Premises and the contribution to the insurance premium and service
charge and observing and performing the several covenants and
stipulations herein on its part contained shall and may peaceably hold
and enjoy the Demised Premises without any interruption by the Landlord
or any person rightly claiming under or in trust for the Landlord.
6.2 LANDLORDS CONSENT
-----------------
Where this Lease states that on an application for consent or approval
by the Tenant, the Landlord shall not withhold such consent or approval
unreasonably the Landlord covenants with the Tenant that it will not
unreasonably withhold or delay its consent to or seek to impose
unreasonbale conditions on the matter or matters that are the subject
of the Tenants application.
7 LANDLORDS AND/OR MANAGEMENT COMPANY'S COVENANTS
-----------------------------------------------
Subject to the Tenant complying with clause 5.4 hereof, the
Management Company and the Landlord (until the transfer of the
freehold reversion in the Common Areas to the Management
Company) MANAGEMENT COMPANY (pursuant to the Management
Company Agreement and at the time when the freehold reversion
in the Common Areas has been transferred to the Management
Company) HEREBY COVENANTS with the Tenant as follows:-
(i) at all times to provide and ensure the provision of high
quality:-
17
(a) security within the Park (including survellance,
cameras and access control)
(b) landscaping of all common areas.
(c) maintenance of roads, footpaths, sheet lighting,
conduits and utilities within the Park.
(ii) Without prejudice to Clause 7 (i) to provide the services as
set out in Part I of the Fourth Schedule in an efficient and
cost effective manner and in accordance with the principles of
good estate management.
8 GUARANTOR'S COVENANTS
The Guarantor HEREBY COVENANTS with the Landlord, as a primary
obligation, as follows:-
8.1 COVENANT AND INDEMNITY
----------------------
That the Tenant or the Guarantor shall at all times during the
Term (including any continuation or renewal of this Lease)
duly perform and observe all the covenants on the part of the
Tenant contained in the Lease, including payment of the rents
and all other sums payable under this Lease in the manner and
at the times herein specified and all sums which may be due to
the Landlord for the mesne rates or as payment for the use and
occupation of the Demised Premises.
8.2 WAIVER
------
That 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.
8.3 POSTPONEMENT OF CLAIMS
----------------------
That the Guarantor will not claim in any liquidation
bankruptcy, composition or arrangement of the Tenant in
completion with the Landlord and will remit to the Landlord
the proceeds of all judgements and all distributions it may
receive from any liquidator of Official Assignee of the Tenant
and will 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.
8.4 POSTPONEMENT OF PARTICIPATION
-----------------------------
That the Guarantor is 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 obligations
18
of the Tenant or the Guarantor to the Landlord under this
Lease have been performed or discharged.
8.5 RELEASE
-------
That none of the following, or any combination thereof,
releases, determines, discharges or in any way lessens or
affects the liability of the Guarantor as principal debtor
under this Lease or otherwise prejudices or affects the right
of the Landlord to recover from the Guarantor to the full
extent of this guarantee:-
8.5.1 any neglect, delay or forbearance of the Landlord in
endeavouring to obtain payment of any part of the
rents or the other 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;
8.5.2 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;
8.5.3 any extension of time given by the Landlord to the
Tenant;
8.5.4 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
8.5.5 any change of the constitution, structure or powers
of either the Tenant, the Guarantor or the Landlord
or the liquidation or bankruptcy (as the case may be)
or either the Tenant or the Guarantor;
8.5.6 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;
8.5.7 any other act, omission, matter or thing whatsoever
whereby, but for this provision, the Guarantor would
be exonerated wither wholly or in part (other than a
release under seal given by the Landlord and other as
provided for at clause 8.10.
8.5.8 Disclaimer or Forfeiture
That if a liquidator or Official Assignee shall
disclaim or surrender this Lease;or this Lease shall
be forfeited; or the Tenant shall cease to exist THEN
the Guarantor shall, if the Landlord by notice in
writing given to the Guarantor within twelve 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 an with
the benefit of this Lease (if same shall still be
deemed to be extant at such time) for a term
commencing on the date of this disclaimer or other
18
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;
8.6 If the Landlord does 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 from and
including the date of such disclaimer, forfeiture or other
event until the expiration of twelve months therefrom or until
the Landlord has granted a lease of the Demised Premises to a
third party (whichever shall first occur).
8.8 BENEFIT OF GUARANTEE
--------------------
That this guarantee ensures for the benefit of the successors,
assigns and mortgagees under this Lease without the necessity
for any assignment thereof.
8.9 JURISDICTION
------------
That the Guarantor will submit to the jurisdiction of the
Irish Courts in relation to any proceedings taken against the
Guarantor or in relation to any new lease granted as
aforesaid.
8.10 LAPSE OF GUARANTEE
------------------
That this guarantee shall automatically lapse and have no
further force or effect upon the assignment of this Lease by
the Tenant provided the prior consent of the Landlord has been
obtained to such assignment or on it being determined by a
Court of competent jurisdiction that such Xxxxxxxx's consent
to a proposed assignment of this Lease by the Tenant has been
withheld or delayed unreasonably.
8.11 RESISTRATION OF COMPANY
-----------------------
That the Guarantor will comply with all statutory requirements
necessary to ensure that the Guarantor remains on the register
of companies or appropriate register in the jurisdiction in
which the Guarantor Company is incorporated.
9 AND IT IS HEREBY AGREED BETWEEN THE LANDLORD AND TENANT as follows:
-------------------------------------------------------
9.1 STORAGE/REMAINING FURNITURE
If at the termination of the time whether by effluxion of time,
re-entry or ejectment or otherwise any furniture, goods or effects
belonging to the Tenant are left in the Demised Premises the Landlord
shall be entitled to remove all such furniture goods or effects from
the Demised Premises and shall be entitled after the expiry of 21 days
from the date of termination to sell as agent for and on behalf of the
20
Tenant any or all of the same and subject to the proviso hereinafter
contained the Landlord shall pay on account to the Tenant on demand for
the proceeds of sale (but not any interest thereon) less any costs for
storage and/or sale reasonably incurred by the Landlord PROVIDED
however that if any monies payable by the Tenant to the Landlord under
this Lease shall be unpaid the Landlord may apply such proceeds of sale
(after deducting any costs of storage and/or sale reasonably incurred
by the Landlord) in or towards the discharge or partial discharge (as
the case may be) of such monies.
9.2 WARRANTY
Nothing herein contained shall be deemed to constitute any warranty by
the Landlord that the Demised Premises or any part thereof are
authorised under the Planning Acts or otherwise for use for any
specific purpose other than as set out at Clause 5.13.
9.3 NOTICE
(a) All notices requests, demands, approvals, consents and other
communications hereunder shall be in writing, shall in the
case of any notices, requests, demands, approvals, consents or
other communications hereunder which are addressed to the
Tenant be copied in writing to the Guarantor, and shall be
duly and validly given if:
(i) physically delivered to any party on the date of
receipt; and/or
(ii) delivered in writing by facsimile or other electronic
means of communication complyng with the provisions
of Clause 9.3(b) and/or
(iii) delivered by prepaid registered or recorded delivery
mail to a party at its address set forth above or in
the case of a company at its registered office for
the time being or at such other address as such party
mau specify from time to time by written notice to
the other parties on the third (3rd) Working Day next
following the day of posting.
(b) In this Agreement, references to "writing" includes facsimile
or other electronic means of communication and "delivered"
includes transmission by such means in which event the
communication shall be deemed to have been made on the next
following Working Day. Any party serving a notice by facsimile
will telephone the intended recipient immediately following
the transmission in order to ascertain that the whole of the
relevant facsimile has been received but the absence of such
confirmation shall not affect the validity of any such
communication.
9.4 PROVISIONS FOR DEALING WITH DISPUTES
Any dispute or difference arising between the Landlord and/or
Management Company and the Tenant shall be referred to an expert to be
appointed either by agreement between the parties or in default to be
21
appointed on application by either party by the President of the Law
Society of Ireland or in the event of his being unable or unwilling to
appoint by the next senior officer of the Law Society who is so able
and willing. If both parties are not agreeable to the use of an expert
the matter shall be referred to the decision of a sole arbitrator to be
agreed between the parties or in default of agreement to be appointed
on application of either party by the President of the Law Society of
Ireland or in the event of his being unable or unwilling to appoint by
the next senior officer of the Law Society who is so able and willing
and the arbitration shall be conducted in accordance with the
Arbitration Acts 1954 to 1998 and such reference shall be deemed to be
a reference to arbitration within the meaning of the said Acts.
9.5 DEFAULT IN PAYMENT OF RENT
PROVIDED ALWAYS and these presents are upon this condition that if the
rent hereby reserved or any part thereof or the contribution to the
insurance premium shall be unpaid for thirty one days after they become
payable after formal written demand or if any covenant on the Tenant's
part herein contained shall not be performed or observed or if the
Tenant or any surety for the Tenant (being a company) shall enter into
liquidation whether compulsory or voluntary (save for the purpose of
reconstruction or amalgamation without insolvency) or (not being a
company) shall become bankrupt or shall call a meeting of or enter into
any composition with creditors or suffer any distress or execution to
be levied on the goods of the Tenant at the Demised Premises then and
in any such case it shall be lawful to re-enter upon the Demised
Premises or any part thereof in the name of the whole after giving the
Tenant prior written notice of the circumstances giving rise to such a
right and a reasonable opportunity to cure or make good the default in
question and thereupon this demise shall absolutely determine but
without prejudice to any claim by the Landlord in respect of any
antecedent breach of any covenant or provision herein contained and on
the happening of an of the said events it shall be lawful for the
Landlord to determine this demise by giving to the Tenant or leaving
for it at the Demised Premises or sending, by registered post to its
place of business last known, a notice to quit the said notice expiring
on any day of the week not necessarily a xxxx day and upon the
expiration of such notice the tenancy hereby created shall be deemed to
have been duly determined by such notice to quit and the Landlord shall
thereupon be entitled to possession of the Demised Premises as of its
former estate and as if the tenancy hereby created had never existed.
10 GOVERNING LAW
-------------
This Lease, together with all schedules, covenants and conditions
contained herein shall be construed and enforced in accordance with the
laws of the Republic of Ireland and the parties hereto submit to the
exclusive jurisdiction of the Irish Courts.
11 BREAK CLAUSE
------------
The Tenant shall be entitled to terminate this Lease and to surrender
the Demised Premises at the expiration of the tenth year of the term,
provided the Tenant gives not less than twelve (12) months clear
advance notice in writing to the Landlord of its intention to surrender
22
and provided further that the Tenant is in compliance with its
covenants in this Lease in respect of the rent, service charge and
insurance. The Tenant shall also pay to the Landlord a penalty of one
years rent at the then prevailing rate, which said penalty shall be
paid on the issue of such notice of termination of the Lease. The
surrender of this Lease by the Tenant to the Landlord shall be without
prejudice to any antecedent breach by either party of its obligations
under this Lease.
IN WITNESS whereof the parties hereto have caused their Common Seal to be
affixed and/or have set their hands and affixed their seals as appropriate the
day and year first herein written.
IT IS HEREBY CERTIFIED for the purposes of Section 45 of the Land Act, 1945,
that the Demised Premises are situate in the County of Dublin.
IT IS HEREBY FURTHER CERTIFIED that the consideration (other than rent) for the
Lease is wholly attributable to property which is not residential property.
IT IS HEREBY FURTHER 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 of the value of the consideration (other than rent) exceeds
(pound)5,000.
IT IS HEREBY FURTHER CERTIFIED that the property being leased is a
telecommunications facility (which may incorporate co-location web-hosting and
similar activities).
IT IS HEREBY FURTHER 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 of them.
23
FIRST SCHEDULE
--------------
ALL THAT AND THOSE the site and premises comprising a premises known as Block 9
comprising of Units A, B, C and D Blanchardstown Corporate Park, Dublin 15,
which said site and premises are more particularly delineated and outlined in
red on the plan annexed hereto and the building erected on which by the Landlord
is described in the plans and specifications attached at Schedule 5 being part
of the property comprised in Folio 113065F of the Register of Freeholders,
County Dublin, together with all conduits and plant in, upon, over or under and
exclusively serving the same and all Landlord's fixtures and fittings now or
hereafter in or upon the same and with the following rights which include,
without prejudice to the generality of the foregoing:
RIGHT OF WAY FOR THE TENANT IN RESPECT OF COMMON AREAS AND ADJOINING
PREMISES
Full right and liberty for the Tenant, it's servants and
agents and all other persons granted similar rights by the
Tenant at all times by day or by night with or without
vehicles to go, pass or xxxxxx over and along the Common
Areas.
TOGETHER WITH full right and liberty for the Tenant it's
servants and agents and all other persons granted similar
rights by the Tenant at all times by day or by night with or
without vehicles to go, pass or xxxxxx over and along the
Common Areas to any lands and premises of the Tenant adjoining
or adjacent to the Park.
The free and uninterrupted passage and running of the Utilities to and
from the Demised Premises through the Conduits which are now, or may at
any time during the Term be, in, on, under or passing through or over
the Adjoining Property;
The right for the Tenant and its service providers ( subject to the
Landlord prior written approval of plans and specifications ) to lay
free of charge in or under over or through the Common Areas such pipes
ducting, wires, cables or other conduits necessary to carry on
transmitting the relevant services to the Demised Premises TOGETHER
WITH the right of the Tenant thereafter to the free and uninterrupted
use of such pipes, ducting, wires, cables or other conduits.
24
[MAP OF LANDS TO XXX]
25
THE SECOND SCHEDULE
-------------------
EASEMENTS RIGHTS AND PRIVILEGES
EXCEPTIONS AND RESERVATIONS
PASSAGE OF UTILITIES
The free and uninterrupted passage and running of water, soil, air, gas,
electricity, telephone, television transmissions and other services from and to
the remainder of the Park through the sewers drains and watercourses, cables,
pipes, wires and such like which now or at any time hereafter within twenty one
years from the date of this Lease be in under or passing through the Demised
Premises or any part thereof.
RIGHT TO ALTER THE PARK
Full right and liberty at any time to erect build alter extend or redevelop any
part of The Park or any adjoining or adjacent property of the Landlord, Landlord
and/or the Management Company in any such manner as the Landlord, Landlord
and/or the Management Company may think fit provided there is no material
interference with the access of light or air for the time being enjoyed by the
Demised Premises or any part thereof or with access to the Demised Premises or
with the services to the Demised Premises and the right of the Landlord and/or
the Management Company to vary or permit the variation of the present or any
future scheme layout or use of the Park including the right to alter the lay-out
or extent of the Common Areas and notwithstanding that any such erection,
building, alteration, addition or extension or redevelopment may temporarily
interfere with the occupation use amenity or enjoyment of the Demised Premises
subject to any damage thereby occasioned being made good with all convenient
speed.
BOUNDARY LANDSCAPING
The full right and liberty of access over the landscaped area of the Demised
Premises abutting a public road and outside the Tenants perimeter fence and/or
the Common 0Areas (hereinafter the "Landscaped Area") and the full right and
liberty to maintain in the Landscaped Area for the Term thereafter.
ALL OTHER EASEMENTS
All other easements or other rights in the nature of easements or
quasi-easements now enjoyed by the Park, the units or by any adjoining or
neighbouring property.
The right of any fire engine or other fire fighting vehicle to enter the
forecourt of the Demised Premises at any time, day or night, for the purposes of
turning this vehicle while actively engaged in fighting any fire on any part of
the Park, whether in the case of an emergency or not.
26
THE THIRD SCHEDULE
(PROVISIONS FOR RENT REVIEW)
REVISED RENT
The Revised Rent shall be assessed on the basis of letting, with full
vacant possession of the Demised Premises for the open market annual
rent which might be expected to be paid in respect of the Demised
Premises at the Review Date as between a willing Landlord and willing
Tenant at arms length without payment of any fine or premium on a Lease
of the whole Demised Premises for a Term (commencing on the Review
Date) equal to the greater of fifteen years or the residue then
unexpired of the Term granted by the within written Lease at the
relevant Review Date and subject to the provisions therein set forth
(other than as to the amount of the initial rent thereby reserved but
including such said provisions as pertain to the review of rent)
(hereinafter called "the Revised Rent").
For the purposes of this Schedule, "the Review Date" means each and
every one of the Review Dates as defined in the Definitions section of
this Lease.
ASSUMPTIONS MADE IN ASSESSING REVISED RENT
The Revised Rent shall be made on the following assumptions:
At and until the Review Date all the covenants on the part of
the Tenant and the conditions contained in the within Lease
have been fully performed and observed;
The Demised Premises are povided to the Tenant in accordance
with the Landlord's Specifications contained in the Fifth
Schedule.
In the event that the Demised Premises or any part thereof has
been destroyed or damaged by the Insured Risks that the same
have been fully restored and made good;
The benefit of any actual and authorised use at the relevant
Review Date;
No work has been carried out to the Demised Premises which has
diminished its rental value.
Regard is to be had to other open market rental values current
at the Review Date insofar as they may be deemed pertinent to
the determination of the Revised Rent.
MATTERS DISREGARDED IN ASSESSING THE REVISED RENT
In assessing the Revised Rent, no regard will be had to the following :-
27
Any effect on rent of the occupation of the Demised Premises by the
Tenant or permitted sub-Tenant;
Any goodwill attached to the Demised Premises by reason of the user
thereof;
Any effect on rent of works on the Demised Premises carried out by or
at the expense of the Tenant at the Demised Premises other than works
carried out by the Tenant in pursuance of an obligation to the Landlord
(whether under this Lease or the Agreement for Lease) save for works
which are also carried out in pursuance of an obligation to comply with
statutes or directions of local authorities or other bodies exercising
power under statue, and
The value attributable to the Tenant's fixtures and fittings and to the
other property of the Tenant which are actually in or at the Demised
Premises at the particular Review Date, whether the works of
installation are carried out before or during the currency of the Lease
and including the Tenant's works as set out in the Sixth Schedule.
ARBITRATION
If by the particular Review Date the Landlord and the Tenant shall not
have agreed the open market rental value as aforesaid as at the
particular Review Date then in that event either the Landlord or the
Tenant may at any time thereafter by notice in writing to the other
require the rent to be determined on the basis aforesaid by an
Independent Chartered 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 for the time being of the
Society of Chartered Surveyors on the written application of either
party.
The Surveyor shall act as an Arbitrator and not as an expert and the
Arbitration shall be conducted in accordance with the Arbitration Acts
1954-1998 or any Statutory Modification or re-enactment thereof for the
time being in force.
If the Surveyor acting as an Arbitrator shall not give notice in
writing of his decision within three months of his appointment the
Landlord or the Tenant may apply to the President for the being of the
Society of the Chartered Surveyors in the Republic of Ireland for the
appointment of another Independent Chartered Surveyor under sub-clause
of this the Third Schedule.
BASIC RENT
The Basic Rent (as defined in the definitions section of this Lease)
payable under this Lease shall be reviewed on the basis the Basic Rent
payable from each Review Date shall be either the yearly rent payable
immediately preceding such Review Date (whether the same be fully
recoverable or not as a result of any statute or orders, rules or
regulations relating to the control of rent) or the open market rental
value of the Demised Premises as at such Review Date and in each case
which ever is the higher.
28
PAYMENTS IN RESPECT OF THE INTERVAL PERIOD
In the event of the fixed Revised Rent of the Demised Premises not
having been agreed or determined prior to any Review Date for any
reason whatsoever then in respect of the period of time (hereinafter
called " the Interval") beginning with that Review Date and ending on
the xxxx days immediately following the date of such agreement or
determination the Tenant shall pay to the Landlord, in manner and
therefore provided rent at the yearly rate payable immediately before
that Review Date PROVIDED THAT fourteen days after the Revised Rent has
been determined the Tenant shall pay to the Landlord the amount (if
any) by which the Revised Rent exceeds the rent actually paid during
the Interval (apportioned on a daily basis) together with interest
thereon at the Base Rate.
29
THE FOURTH SCHEDULE
-------------------
PART I
Maintenance and Services to be provided by the
Landlord and/or Management Company.
REPAIR AND CLEANING
As often as may be required to cleanse, repair, renew, maintain and decorate the
whole of the Common Areas including conduits and the accommodation necessary to
house equipment and personnel used for the maintenance, operating and
functioning of the Park and all advertising panels and information panels but
excluding plant, machinery, apparatus and equipment exclusively serving the
Tenant or any other Tenants in the Park.
REPAIR - EQUIPMENT
As often as shall be necessary to maintain, cleanse, repair and renew all
electrical, mechanical and other plant equipment, chattels, features, fixtures
and fittings or ornament or utility in use in the Common Areas for common
benefit, cleaning equipment and the direction and other signs and any fencing or
boundary walls in or surrounding the Common Areas.
OPERATE MAINTAIN AND RENEW
To operate, maintain and renew:-
Fire mains, hydrants and other requisite fire fighting equipment (if
any) in relation to the Common Areas.
Electric services and power installations to the curtilage of the
Demised Premises and lighting to all the Common Areas and a sprinkler
system (if any) to serve the Common Areas.
Rainwater outlets and all drainage (save to the extent that the Tenant
may be liable therefor under the provisions of the within written
Lease).
The insurance (including public liability and employers liability
insurance) of the Common Areas (including demolition and site
clearance) and of all necessary equipment, plant and machinery of every
kind presently or in the future situate therein against such risks as
the Landlord or Purchaser at its sole discretion shall consider
necessary.
Emergency Lights.
Alarm Systems (if any)
Television aerials, car park control equipment and neon signs.
30
Car parking equipment including barriers (if any).
PERSONNEL
From time to time to provide such agent or agents and/or management personnel
for the management of The Park as are necessary and shall pay such agents fees
and Value Added Tax thereon.
RATES
To 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 Park as a
whole.
ACCOMMODATION - PERSONNEL AND EQUIPMENT
To provide the cost of accommodation for security staff and personnel and the
cost of equipment and plant used in providing management and services for the
Park and the cost of providing, repairing, renewing and maintaining office
accommodation situate in or near the Park and other accommodation including (if
appropriate) car parking used solely for the purposes of the Park and occupied
by the Management Company, its servants or agents.
PAYMENT - PERSONNEL
From time to time provide and discharge the costs of wages, pensions, uniforms
and insurance for such manager xxxxxx, attendant, security, maintenance,
cleaning and other staff (excluding the staff of any Tenants in the Park)
serving the Park.
BENEFITS-PERSONNEL
To discharge such periodic payments in respect of national health, social
welfare, industrial training levies, redundancy and similar or ancillary
payments required by statute to be made by the Management Company in respect of
all persons from time to time employed by it for purposes connected with the
Park.
PROFESSIONAL FEES
From time to time to provide for the auditor's and any surveyor's reasonable and
justified fees and Value Added Tax payable thereon and on all services provided
hereunder.
RESERVE FUND
The Management Company shall provide for such sinking or reserve fund as the
Management Company shall deem fit for the replacement and the renewal of the
mechanical, electrical or other equipment in the Park and the Management Company
shall have power:
annually or at such other intervals as the Management Company may
determine to review the cost or prospective cost of such replacements
and renewals with a view to allowing for all such additional or further
31
costs and expenditures as may be attributable to the differential in
the value of money or inflationary or other like trends and changing
technology as between one date and another, and
to allow for all such amounts as may be determined on review in
computing the contribution from time to time to the sinking or reserve
fund provided however that this clause shall not impose upon the
Management Company any obligations to provide for or continue to
provide for, if already established, such sinking or reserve fund.
PROVIDED ALWAYS that such sinking or reserve fund shall be placed in a separate
account and shall be held as trustee by the Management Company for the benefit
of the Tenants of the Park.
COMMON AREAS AND THE PARK
To provide for the cost and expense of repairing, maintaining, renewing and
rebuilding any part of the Common Areas of the Park to the extent that such is
not wholly reimbursed by the Tenant or any other Tenant of the Landlord or by
any third party.
To provide for the cost of repairing, maintaining and renewing any
sprinkler, intruder, alarm, fire alarm, and any closed circuit T.V.
system.
To provide for the cost of operating, repairing, maintaining and
renewing the machinery and all electrical, mechanical and other plant,
machinery, apparatus and equipment, chattels, features and fittings of
ornament or utility in use in the Common Areas for the common benefit
of the Tenant and the occupiers of the Park.
FINANCE
To make provision for the cost of financing the maintenance and services
specified in this Schedule.
To make provision for such reasonable expenses of a periodic or
recurring nature as the Landlord and/or Management Company shall think
fit together with a reasonable provision for forecast expenditure.
To provide for the cost of providing such further services as are in
the reasonable opinion of the Landlord and/or Management Company
necessary for the comfort and convenience of the Tenant or the Tenants
as occupiers of the Park generally and their customers or for the
amenity of the Park.
32
THE FOURTH SCHEDULE
-------------------
PART I I
THE AMOUNT OF THE COMMON AREAS SERVICE CHARGE
The amount of the Common Areas Service Charge incurred by the
Landlord/Management Company in the provision of the services and the carrying
out of the obligations and the other heads of expenditure as the same are set
out in Part I of the Fourth Schedule hereto shall be ascertained and certified
by a Certificate (hereinafter called "the Certificate") signed by the
Landlord/Management Company or it's accountant or surveyor or managing agents
(at the discretion of the Landlord/Management Company) (acting as experts and
not as arbitrators) annually and so soon after the end of the
Landlord/Management Company's Financial Year as may be practicable which
certificate shall give a full detailed account of the expenditure on the Common
Areas Services Charge and shall be audited by an independent chartered or
certified accountant and shall relate to such year in manner hereinafter
mentioned.
The expression "the Landlord/Management Company's Financial Year" shall mean the
period from the 1st day of January to the 31st day of December next succeeding
or such other annual period as the Landlord/Management Company may in it's
discretion from time to time determine being that in which the accounts of the
Landlord/Management Company either generally or relating to the Common Areas and
The Park shall be made up.
The Certificate shall contain details of the Landlord/Management Company's
expenses and outgoings incurred by the Landlord/ Management Company during the
Landlord's/Management Company's Financial Year to which it relates together with
the relevant details and figures forming the basis of the service charge and the
Certificate (or a copy thereof duly certified by the person by whom same was
given) shall be conclusive evidence for the purpose hereof of the matters which
it purports to certify.
The expression "the expenses and outgoings, incurred by the Landlord/Management
Company" as hereinbefore used shall be deemed to include not only those expenses
and outgoings and other expenditure hereinbefore Landlord/Management described
which have been actually disbursed incurred or made by the Landlord/Management
Company during the year in question but also a sum or sums of money by way of
reasonable provision for anticipated expenditure as the Management Company or
it's accountant, surveyor or managing agent (as the case may be) may in their
discretion estimate to the year in question as being fair and reasonable in the
circumstances.
FURNISHING OF ACCOUNT
As soon as practicable after the end of each Landlord/Management Company's
Financial Year the Landlord/Management Company shall furnish to the Tenant an
account of the Common Areas Service Charge payable by the Tenant for the year in
question due credit being given therein for all interim payments made by the
Tenant in respect of the said year and upon the furnishing of such Account
showing such adjustment as may be appropriate there shall be paid by the Tenant
33
to the Landlord/Management Company the amount of the Common Areas Service Charge
as aforesaid or any balance found payable or there shall be allowed by the
Landlord/Management Company to the Tenant any amount which may have been
overpaid by the Tenant by way of interim payment as the case may require.
PROVIDED ALWAYS and notwithstanding anything herein contained it is agreed and
declared as follows:
If the Landlord/Management Company shall from time to time certify that managing
agents for the general management of the Common Areas and The Park have not been
employed then a sum equivalent to ten per centum of the Common Areas Service
Charge in respect of the work carried out by the Landlord/Management Company in
lieu of the managing agents shall be added thereto and shall be payable by the
Tenant as part of the Common Areas Service Charge and together with any VAT
thereon.
PAYMENT ON ACCOUNT:
On the execution of this Lease the Tenant shall pay to the Landlord/Management
Company on account an apportioned part of the Common Areas Service Charge in
respect of the period from the date of occupation of the Demised Premises or
from the date from which the first payment of rent shall be calculated
(whichever first occurs) to the ensuing 31st day of December.
The provisions of this part of this schedule shall continue to apply
notwithstanding the expiration or sooner determination of the Term before its
natural determination by effluxion of time but only in respect of the period
down to which such expiration or sooner determination aforesaid and where
appropriate the Tenant's liability for the Common Areas Service Charge for the
last year of the term (whether the term expires or determines before its natural
determination by effluxion of time or not) shall be a proportionate sum
calculated on a day to day basis in respect of the said last year.
34
THE FIFTH SCHEDULE
------------------
Plans and Specifications for Building
35
[LETTERHEAD OF LANMEUR LTD.]
SPECIFICATION FOR UNIT 9
------------------------
1.0 INTRODUCTION
----------------
This Unit has been constructed in accordance with the drawings prepared by
Xxxxxxx X Xxxxx (Architects ), Xxxxx XxxxXxxxxxx ( Civil and Structural
Engineers ) and X X Xxxxxxx ( Services Engineers ).This specification should be
read with refrrence to these drawings.
The overall building which is Unit 9 comprises Units A to D and this building is
serviced on three sides by road . There are also landscaped areas and carparking
areas all as shown on the drawings.
The Unit is sub-divided by blockwork party walls which are currently constructed
between B and C and C and D. The block work wall between A and B has not been
built at this stage to offer flexibility to potential tcnants/purchasers.
Units 9A and 9D have been constructed with two office areas serviced with
toilets and accessed through feature entrance and reception areas, finished to a
high specification.
Units 9B and 9C have the flexibility to have two storey office and toilet areas
constructed within them, on existing foundations and the external facade to
these Units also incorporates feature ontranccs.(Note that Planning permission
exists for the office areas)
The warehouse areas are located behind the office arms and can be accessed
through the office areas and also via the grade level doors and personnel doors
on the rear elevation.
2.0 OFFICE AND TOILET AREAS SPECIFICATION
-----------------------------------------
- Two storey offices built on reinforced concrete foundations.
- Power floated finish slabs.
- Blockwork and stud partition walls, plastered (skim coat finish) and painted.
- Suspended ceiling tile system.
- Solid core flush doors.
- Painted timber skirting and window board.
- Ceramic tiles to toilet floor areas and sink splashbacks.
- White sanitary wave.
2.0 OFFICE AND TOILET AREAS SPECIFICATION, CONTD.
-------------------------------------------------
- Formica finished toilet cubicles
- Disabled toilet suite on ground floor
- Water heaters to each toilet area.
- Storage heating
- Power sockets to Offices.
- Category two lighting
- Emergency lighting.
- Fire Alarm
- Telecoms infrastructure at reception area
3.0 FEATURE ENTRANCE AREAS (UNITS 9A AND 9D)
--------------------------------------------
- Curved glass block wall forming the two storey feature entrance elevation
- Glazed entrance porch with matwell area leading to spacious double height
reception area.
- Curved mild steel stairs with limber threads, to first floor level.
- Decorative lighting
- Storeage Heating
4.0 WAREHOUSE AREAS SPECIFICATION
---------------------------------
-SUBSTRUCTURE
Pad foundations, Reinforced concrete floor slab with power float finish.
-SUPERSTRUCTURE
Structural steel frame on pad foundations.
-DIVIDING WALLS BETWEEN UNITS
Full height blockwork walls with lintols incorporated to allow flexibility of
future access between Units if requited.
-ETERNAL WALLS
The external wall on the rear elevation is constructed from Kingspan 1000 metal
panel and there are grade level Sectional Overhead doors and personnel access
doors.
4.0 WAREHOUSE AREAS SPECIFICATION, CONTD
----------------------------------------
-EXTERNAL WALLS, CONTD.
The front elevation incorporates four feature entrance areas formed with glass
block to Units 9A and 9D and with glazed curtain wall to Units 9B and 9C. These
enhances are framed in coloured architectural plaster.
The rest of the front elevation comprises architectural metal cladding and
windows and doors which rare double glazed units.
The side elevations are also in architectural cladding and double glazed window
units are located as shown on the drawings.
- ROOF FINISHES
Kingspan KS1000 roof panels (with 10% translucent ) gutter system and down
pipes.
-SERVICES
Highbay lighting , emergency lighting, Fire alarm as per the layout shown on the
services drawings.
Substation incorporated in Unit 9A with transformer sized to suit the building
as currently serviced. This transformer is capable of being upgraded to suit end
users power requirements. Individual power distribution boards in each Unit.
Gas supply to each Unit.
5.0 SITEWORKS
-------------
Dense Bitumen macadam surface to the carspaces at the front of the building and
paved roadway also at the front of the building. Dense Bitumen Macadam surface
to the road and carspaces at the rear of the building.
Precast concrete xxxxx, Storm and Foul drainage to site as per the Engineers
drawing, Landscaping as shown on the Architects drawing.
6.0 SITE SERVICES
-----------------
Gas Mains, ESB, Telecom ducting, Main water supply, tool and surface water.
THE SIXTH SCHEDULE
------------------
Outline Description of Tenant's Fit Out [the following is struckthrough text:
which is inserted in the Fourth Schedule to the Agreement for Lease]
SCHEDULE
Outline of Tenant's Works
The Tenant's fit out shall in principle comprise the following elements which
the Tenant intends to complete within 6 months of the date hereof. The Tenant
reserves the right to alter its fit out from time to time as it deems necessary
for the efficient running of its business (subject to Landlord's consent which
shall not be withheld or delayed unreasonably).
These improvements shall be disregarded for rent review purposes.
Security Installation
The Tenant will install perimeter fencing around the Demised Premises to include
manual or mechanically operated gates, hydraulic barriers, signage and other
security access barriers, cameras, security huts as it sees fit and upgrade the
external wall structure
Services Installations
The Tenant will install the following: Full generator back up to support up to
10 mva supply, full air conditioning throughout the Building including the
location of chillers and fuel tanks externally. The Tenant will upgrade to the
following services: internal power distribution and circuitry, ESB sub station,
telecoms network, lifts and additional toilet blocks.
Alterations to existing office layout and toilet blocks
The Tenant's fit out will include the construction of new offices internally,
the alteration of the existing layout and the construction of a new mezzanine
floor throughout.
Other items which may have to be altered to comply with building regulations
such as drainage systems and external ductwork for telecoms services or any
other service which are deemed necessary for the successful operation of the
business (subject to Landlord's consent which shall not be withheld or delayed
unreasonably)
IN WITNESS whereof the parties hereto have caused their Common Seal to be
affixed and/or have set their hands and affixed their seals as appropriate the
day and year first herein WRITTEN.
PRESENT when the Common Seal of /s/ _____ Xxxxxxxx
THE LANDLORD as affixed hereto:- /s/ Xxxxxxxx Xxxxxxxx
PRESENT when the Common Seal of /s/ _____ Xxxxxxxx
THE MANAGEMENTMENT COMPANY /S/ _______________
was affixed hereto:-
PRESENT when the Common Seal /s/ Xxxxx X. Xxxxxx
of WORLDPORT IRELAND LIMITED V.P., Corporate Development
was affixed hereto:- /s/ Xxxx X. Xxxxxx
Chief Financial Officer
PRESENT when the Common Seal /s/ Xxxx X. Xxxxxx
of WORLDPORT COMMUNICATIONS INC Chief Financial Officer
was affixed hereto:-
