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EXHIBIT 10.28
THIS LEASE is made the 11th day of December 2000 BETWEEN XXXXX XXXXX of
Oranswell, Bushypark, Galway in the County of Galway (hereinafter called "the
Landlord") of the First Part G & D, Inc. (trading as Star Guide Corporation)
having its registered office at 000 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxx 00000 X.X.X.
(hereinafter called "the Guarantor") of the Second Part and SEAZUN LIMITED
having its registered office at 0 Xxxxxxxx Xxxxxxxxxx Xxxx, Xxxxxxxx in the
County of Galway (hereinafter called "the Tenant") of the Third Part.
WITNESSETH as follows:-
DEFINITIONS:
1.1 The terms defined in this clause shall for all purposes of this Lease have
the meanings specified in this clause.
1.2 "the Premises" shall mean ALL THAT part of the lands of Carrowmoneash in the
Barony of Dunkellin and County of Galway comprising Xxxx 0 Xxxxxxxx Xxxxxxxxxx
Xxxx, Xxxxxxxx in the County of Galway and being more particularly delineated
and edged red on the attached Plan TOGETHER WITH the industrial building erected
thereon or on some part thereof TOGETHER ALSO WITH the Landlord's fixtures and
fittings therein.
1.3 "the Rights" shall mean the rights set out in Schedule I hereof.
1.4 "the Exceptions" shall mean the exceptions and reservations set out in
Schedule II hereof.
1.5 "Pipes" shall mean and include pipes, sewers, drains, conduits, ditches,
water courses, culverts, wires, cables, channels and all other conducting media.
1.6 "the Term" shall mean the term of 21 years from and including the 1st day of
October 2000 and in relation to Clauses 4 - 6 hereof shall include the period of
any holding-over or any extension or continuance thereof whether by statute or
by common law where the context so admits.
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1.7 "the Rent" shall mean;
(a) until the lst day of October 2005 the yearly rent of IRE58,000 exclusive;
(b) during the remainder of the Term such other rent as may become payable under
the provisions of Schedule III hereof.
1.8 "the Tenant's Covenants" shall mean the covenants set out in Schedule IV
hereof.
1.9 "the Landlord's Covenants" shall mean the covenants set out in Schedule V
hereof.
1.10 "the Insured Risks" shall mean fire, lightning, explosion, xxxxx, xxxxxxx,
flood, bursting and overflowing of water tanks, apparatus or pipes, impact from
aircraft and other aerial devices and any articles dropped therefrom,
earthquake, riot, civil commotion, strikes, locked out workers and malicious
persons and such other risks as the Landlord acting reasonably shall from time
to time consider necessary subject to the availability of insurance cover
against such risks and to the extent that and subject to such conditions as
insurance cover against any such buildings is generally available.
1.11 "interest" shall mean interest at the rate of interest charged in respect
of Income Tax under the Income Tax Xxx 0000.
1.12 "the Planning Acts" shall mean the Planning and Development Xxx 0000 and
all statutes regulations and orders included by virtue of Clause 2.5 hereof.
1.13 "development" shall have the meaning given to it by the Planning Acts.
1.14 "the Surveyor" shall mean any person or firm appointed by or acting for the
Landlord to perform the function of the Surveyor for any purposes of this Lease.
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INTERPRETATION:
2.1 The expression "the Landlord" means the above named its successors and
assigns and where the context so admits includes such other person or parties in
whom for the time being the reversion immediately expectant upon the term
granted by this Lease shall be vested and "the Tenant" means the above named its
successors in title and permitted assigns and where the context so admits
includes such other parties or party in whom for the time being the Term shall
be vested.
2.2 Where the Landlord or the Tenant for the time being are two or more
individuals the terms the Landlord and the Tenant shall include the plural
number and the obligations expressed or implied to be made by or with such party
shall be deemed to be made by or with such individuals jointly and severally.
2.3 Words importing the neuter gender include the masculine or feminine gender
(as the case may be) and words importing the masculine gender include the
feminine gender and vice versa and words importing the singular number include
the plural number and vice versa.
2.4 References to any right exercised by the Landlord or any right exercisable
by the Tenant in common with the Landlord shall be construed as including (where
appropriate) the exercise of such right by and in common with all persons
authorised by the Landlord and all other persons having a like right.
2.5 Any reference to a statute shall include any statutory extension or
modification or re-enactment of such statute and any regulations or orders made
thereunder.
2.6 Any covenant by the Tenant not to do an act or thing shall be deemed to
include an obligation not to permit such act or thing to be done.
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2.7 The paragraph headings do not form part of this Lease and shall not be taken
into account in the construction or interpretation thereof.
THE DEMISE
3. The Landlord HEREBY DEMISES unto the Tenant the Premises TOGETHER WITH the
Rights EXCEPTING and RESERVING unto the Landlord the Exceptions TO HOLD the same
unto the Tenant for the Term PAYING therefor unto the Landlord the Rent without
any deduction by equal monthly payments in advance to the credit of the
Landlords account number 00000000 in Bank of Ireland, 00 Xxxx Xxxxxx, Xxxxxx on
the day of each month in every year and so in proportion for any period less
than a year the first such payment to be paid on the execution hereof.
COVENANTS:
4.1 The Tenant hereby covenants with the Landlord to observe and perform the
Tenant's Covenants at all times during the term.
4.2 The Landlord hereby covenants with the Tenant to observe and perform the
Landlord's Covenants at all times during the Term.
PROVISOES:
5.1 If and whenever during the Term
(a) the rents (that is the rent as defined and the proportion of the
insurance premium) shall be in arrear and unpaid for twenty one days
next after becoming payable (whether formally demanded or not); or
(b) there shall be any material breach or non performance or non-observance
of any of the covenants on the part of the Tenant herein contained; or
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(c) the Tenant (being an individual) shall become bankrupt or (being a
company) shall enter into liquidation whether compulsory or voluntary
(save for the purpose of amalgamation or reconstruction of a solvent
company) or have a receiver appointed of its undertaking or (in either
case) shall enter into an arrangement or composition for the benefit of
its creditors or suffer any distress or execution to be levied on its
goods; then, and in any of the said cases, it shall be lawful for the
Landlord at any time thereafter and notwithstanding the waiver of any
previous right of re-entry to re-enter into and upon the 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 either party against the other
in respect of any antecedent breach of any of the covenants herein
contained.
5.2 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
adjoining or neighbouring premises belonging to the Landlord,
5.3 Such of the internal division walls as divide the Premises from other
premises of the Landlord shall be deemed to be party walls.
5.4 Nothing in this Lease or in any consent granted by the Landlord under this
Lease shall imply or warrant that the Premises may be used for the purpose
herein authorised under the Planning Acts.
5.5 Any notice or document under or in connection with this Lease shall be
effectively given or served if sent by post or delivered to the intended
recipient or his Solicitor or at his or their last known address. Where sent by
post, the notice or document shall be deemed to be given or served on the second
day after posting.
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5.6 If the Premises or any part thereof or access thereto shall at any time
during the Term be destroyed or so damaged by fire or any other risk insured
against by the Landlord so that the Premises or any part thereof shall be unfit
for occupation or use then (i) the Tenant shall not be entitled to surrender
this Lease under the provisions of Section 40 of the Landlord and Tenant Law
Amendment Act, Ireland, 1860, and (ii) unless the insurance of the Premises or
the building of which the same forms part shall have been vitiated by the act,
neglect, default or omission of the Tenant the Rents hereby reserved or a fair
proportion thereof according to the nature and extent of the damage sustained,
the amount of such proportion to be determined by the Surveyor, shall be
suspended and cease to be payable until the Premises or the damaged portion
thereof shall have been reinstated or made fit for occupation or until the
expiration of three years from the catastrophe whichever is the shorter.
GUARANTEE
6. The Guarantor hereby covenants with the Landlord that if at any time
(1) During the Term or any statutory extension thereof the Tenant shall
make any default in payment of rent or in observing or performing any
of the covenants or restrictions herein contained the Guarantor will
pay the rent and observe or perform the covenants and conditions in
respect of which the Tenant shall be in default notwithstanding
(a) Any time or indulgence granted by the Landlord to the Tenant;
(b) That the Tenant may have ceased to exist;
(c) Any other act or thing whereby but for this provision the
Guarantor would have been released.
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(2) During the Term the Tenant shall enter into liquidation and the
Liquidator shall disclaim this Lease the Guarantor will if the Landlord
shall by notice in writing within two months after such disclaimer so
require take from the Landlord a lease of the Premises for the residue
of the Term which would have remained had there been no disclaimer at
the same rent and subject to the same covenants and conditions as in
this Lease with the exception of this clause such new Lease to take
effect from the date of the said disclaimer and in such case the
Guarantor shall deliver to the Landlord a counterpart of the new Lease.
OPTION TO SURRENDER
7. If the tenant is desirous of determining this lease at the end of the first
five years of the Term and of such desire gives to the landlord not less than
six months notice in writing and pays all rent then and in such case immediately
after the expiration of the said period of five years this lease shall cease and
be void but without prejudice to any claim by either party against the other in
respect of any antecedent breach of any covenant or condition herein contained
PROVIDED that where this Lease has been registered in the Land Registry as a
burden on the Landlord's title this option to surrender shall be invalidated if
the tenant fails within fourteen days after the expiration of the said period of
five years to furnish to the Landlord (a) the original Lease and a formal
acknowledgment of the termination of the Lease together with (where issued) the
Land Certificate of such leasehold Folio as may have been opened in the Land
Registry in respect of the Term or (b) satisfactory documentary evidence dealing
with the absence of such documents so as to enable the Landlord to procure the
cancellation or closing of the Tenant's leasehold Folio.
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SCHEDULE I THE RIGHTS
Right of Way
1. Full right and liberty for the Tenant its servants and licensees (in common
with the Landlord) with or without vehicles at all times for all purposes
connected with the Premises but not for any other purpose to pass and xxxxxx to
and from the Premises over and along the roadway leading thereto.
Services
2. The free right of passage and running of water, soil, gas, electricity and
other services to and from the Premises through all the Pipes now made or
passing under or along the adjoining land of the Landlord.
SCHEDULE II THE EXCEPTIONS
Services
1. The free passage and running of water, soil, gas, electricity and other
services from and to adjoining and neighbouring land and the buildings now or
hereafter erected therein and through the pipes laid, made (or to be laid and
made within 2l years) in, upon, through, or under the Premises and the free and
uninterrupted use of all gas, electric, telephone and other Pipes serving such
adjoining and neighbouring land and buildings now or at any time (within twenty
one years) during the term upon through, or under the Premises.
Construct Easements
2. The right to construct and maintain in, over or under the Premises (apart
from the area already built upon) any easements or services for the benefit of
any adjoining property of the Landlord.
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Access
3. The right at any time during the Term (but except in cases of emergency only
at reasonab1e times during normal office hours after giving reasonable prior
notice to the Tenant and by prior appointment except where the Tenant
unreasonably refuses to make an appointment within a reasonable time of a
request from the Landlord) to enter (or in case of emergency to break and enter)
upon the Premises in order;
(a) to inspect, cleanse, repair, amend, remove or replace with others the
Pipes referred to in Paragraph 1 of this Schedule;
(b) to inspect and execute works in connection with any of the easements or
the services referred to in this Schedule;
(c) to view the state and condition of and to repair and maintain any
adjoining property where such work would not otherwise be reasonably
practicable;
(d) to carry out work or to do anything whatsoever comprised within the
Landlord's obligations herein contained whether or not the Tenant is
liable hereunder to make a contribution;
(e) to exercise any of the rights possessed by the Landlord under the terms
of this Lease;
PROVIDED that the Landlord shall cause as little inconvenience to the tenant as
possible and make good without delay any damage thereby caused to the Premises.
Light
4. Full right and liberty at any time hereafter and from time to time to execute
works and erections upon or to alter or rebuild any of the buildings erected on
the Landlord's adjoining and neighbouring lands and to use such adjoining and
neighbouring lands and buildings now or hereafter erected thereon in such manner
as it shall think fit notwithstanding that the access of light and air to the
premises may thereby be interfered with.
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SCHEDULE III RENT REVIEW
Definitions and interpretation
1. For the purpose of this Lease;
(1) "Review Date" shall mean the 1st day of October 2005 and every fifth
anniversary of that date.
(2) "the Open Market Rent" shall mean the rent at which the Premises (or at
the option of the Landlord pursuant to Clause IV of this Schedule
similar premises in the County Borough of Galway (mutatis mutandi)
might reasonably be expected to be let as a whole at the relevant
Review Date in the open market by a willing Landlord to a willing
Tenant without a premium with vacant possession of the whole and
subject to the provisions of this Lease other than the amount of the
Rent but including the provisions for rent review for a term equal to
that granted by this Lease.
(a) on the assumptions that;
(i) at the relevant Review Date the Premises are fit for immediate
occupation and use and that no alterations nor additions had
been carried out thereto by the Tenant or its predecessors in
title during the Term which have diminished the rental value
of the Premises and that if the Premises have been destroyed
or damaged they have been fully restored;
(ii) the Tenant's covenants herein contained have been fully
performed and observed until the relevant Review Date;
(b) but there shall be disregarded
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(i) all trade fixtures and fittings affixed to the Premises
either by the Tenant its sub-tenants or their respective
predecessors in title during the Term or during any period of
occupation prior thereto arising out of an agreement to grant
the Term or by any tenant or sub-tenant of the Premises before
the commencement of the Term;
(ii) any effect on rent of the fact that the Tenant its
sub-tenants or their respective predecessors in title have
been in occupation of the Premises;
(iii) any goodwill attached to the Premises by reason of the
carrying on thereat of the business of the Tenant its
sub-tenants or their respective predecessors in title in their
respective businesses; and
(iv) any increase in the rental value of the Premises
attributable to the existence at the relevant Review Date of
any improvement to the Premises or any part thereof carried
out with consent (where required) of and otherwise than in
pursuance of an obligation to the Landlord or its predecessors
in title either by the Tenant its sub-tenants or their
respective predecessors in title during the Term or during any
period of occupation prior thereto arising out of an agreement
to grant the Term or by any tenant or sub-tenant of the
Premises before the commencement of the Term so long as the
Landlord or its predecessors in title have not since the
improvement was carried out had vacant possession of the
relevant part of the Premises.
(3) Any reference to the President of the Irish Auctioneers and Valuers
Institute shall include the duly appointed deputy of the said President or any
person authorised by the said President to make appointments on his behalf.
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The Rent Review
2. At each Review Date the Rent shall be reviewed in accordance with the
provisions of this Schedule and from and after each Review Date the Rent payable
in respect of the Premises shall be the greater of the Rent being paid
immediately before the Review Date or the Open Market Rent on the Review Date.
Fixing the Reviewed Rent
3. The Open Market Rent at any Review Date may be agreed at any time between the
Landlord and the Tenant or (in the absence of agreement) will be determined by
an arbitrator to be appointed either by agreement between the parties or on the
application of either party made not more than three months before or at any
time after the relevant Review Date by the President for the time being of the
Irish Auctioneers and Valuers Institute.
Option of Landlord
4. At the option of the Landlord the Open Market Rent at each Relevant Review
Date shall be fixed and determined as if the Premises were located in the County
Borough of Galway rather than at Xxxxxxxxxxxxx, Xxxxxxxx, Xx. Xxxxxx.
Arbitration
5. The arbitration shall be conducted in accordance with the Arbitration Acts,
1954 to 1998 and the decision of the arbitrator shall be final and binding.
Memoranda of Revised Rent
6. When the amount of any Rent to be ascertained as hereinbefore provided shall
have been so ascertained, memoranda thereof shall thereupon be signed by or on
behalf of the Landlord and the Tenant and annexed to this Lease and counterpart
thereof and the parties shall bear their own costs in respect thereof.
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Payment on Account pending Determination
7. If and so often as the Rent in respect of any period has not been ascertained
pursuant to the foregoing provisions before the first day hereby appointed for
payment the Tenant shall continue to pay at the rate equal to the Rent payable
immediately before the commencement of the relevant period (such payments being
on account of the Rent for that period) until the first day for payment of the
Rent after Rent for that period has been ascertained (hereinafter called "the
Payment Date").
Payment on Determination
8. On the payment date there shall be payable by the Tenant to the Landlord by
way of rent (in addition to the amount of the Rent otherwise due on that day)
the aggregate of the amounts by which the instalments of the Rent payable on
account in respect of that period in accordance with paragraph 7 hereof fall
short of the amounts which would have been payable if the Rent for that period
had been ascertained before the first day for payment (hereinafter called "the
Ascertained Rent") and the arbitrator may direct that Interest be paid on each
instalment due prior to the Payment Date on the difference between the Rent
paid on account in accordance with paragraph 7 hereof and the Ascertained Rent
for the period from the date the said instalment was due up to the date upon
which payment is actually made and the arbitrator shall so direct if in his view
it is reasonable in all the circumstances including the parties' conduct on the
review and the result of his substantive determination.
Statutory Rent Restriction
9. If at any of the Review Dates there shall be in force a statute which shall
prevent, restrict or modify the Landlord's right
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to review and increase the Rent in accordance with this Lease, the Landlord
shall when such restriction or modification is removed, relaxed or modified be
entitled on giving not less than one month's notice in writing to the Tenant to
proceed with any review of the Rent which may have been prevented (or further
to review the Rent in respect of any review where the Landlord's right was
restricted or modified) and the date specified in the said notice shall be
deemed for the purposes hereof to be a Review Date (providing that nothing
herein shall be construed as varying any subsequent Review Dates) and the
Landlord shall be entitled to recover any resulting increase in Rent with
effect from such date as shall then be permitted by law.
SCHEDULE IV THE TENANT'S COVENANTS
Rent
1. To pay the rent on the days and in the manner aforesaid provided that if and
so long as the amount of rent which the Tenant is liable to pay shall be
restricted by law the Tenant will in lieu of the Rent pay the maximum amount of
rent which such restriction may from time to time allow and in such
circumstances the term "the Rent" shall be construed as meaning such maximum
amount PROVIDED ALWAYS that the said maximum rent does not exceed the rent
payable under the Lease at that time in which case the lesser amount shall
apply.
Outqoings
2. To pay and indemnify the Landlord against all rates, taxes, assessments,
duties, charges, impositions and outgoings which now are or during the Term
shall be charged, assessed or imposed upon the Premises or any part thereof or
upon the owner or occupier thereof and to pay the Value Added Tax and Stamp Duty
due or payable or arising under or in connection with this Lease and the
Counterpart thereof.
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Shared Items
3. To pay the Landlord on demand a fair proportion (to be finally and
conclusively determined by the Surveyor (such determination to be conclusive as
to matters of fact but not as to questions of law)) of the expense of
maintaining, keeping in good and substantial repair and condition, re-instating
and (where appropriate) cleaning all party walls, fences, pipes, roads, sewers
and sewerage treatment plant, lighting, open space and other things, works and
services as the Landlord shall consider ought properly or reasonably to be
provided or undertaken for or in connection with or in relation to the
efficient operation of Westlink Commercial Park or any part thereof, the use of
which is common to the Premises and to other premises and the fair proportion of
the expense shall be that fraction thereof which has as its numerator the ground
floor built upon area of the Premises as its denominator the ground floor built
upon area of all of the units or buildings at Westlink Commercial Park at the
corresponding time.
Insurance
4.1 To repay to the Landlord on demand the sums which the Landlord shall from
time to time pay by way of Premiums (and all of any increased premiums payable
by reason of any act use or omission by or on the part of the Tenant) for
keeping the Premises insured under the covenant on the part of the Landlord
contained in Paragraph 2 of Schedule V hereof.
4.2 Not to do or omit anything whereby any policy of insurance on the building
of which the Premises forms part may become void or voidable wholly or in part
nor (unless the Tenant shall have previously notified the Landlord and has
agreed to pay the increased premiums) anything whereby additional insurance
premiums may become payable.
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4.3 In the event of the Premises or any part thereof being destroyed by any of
the Insured Risks at any time during the Term and the insurance money under any
policy of insurance effected thereon being by reason of any act or default of
the Tenant wholly or partially irrecoverable forthwith in every such case to
rebuild and reinstate at its own expense the building of which the Premises
forms part or the part destroyed or damaged to the reasonable satisfaction and
under the supervision of the Surveyor the Tenant being allowed towards the
expenses of so doing upon such rebuilding and reinstatement being completed the
amount (if any) actually received in respect of such destruction or damage under
any such insurance as aforesaid.
4.4 If at any time the Tenant shall be entitled to the benefit of any insurance
on the Premises (which is not effected or maintained in pursuance of an
obligation herein contained) then to apply all moneys received by virtue of
such insurance in making good the loss or damage in respect of which the same
shall have been received.
Repair
5. To keep the Premises and the Pipes therein or used exclusively by the Tenant
together with the fences or walls and any other means of demarcation on the
boundaries in good and substantial repair and condition and well cleansed and
maintained.
Decoration
6. In the year 2004 and every fifth year thereafter and also in the last year of
the Term (whether determined by affluxion of time or otherwise) to prepare and
paint, grain and varnish in a good and workmanlike manner all external parts of
the Premises previously or
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usually painted, grained and varnished respectively in colours approved by the
Landlord (such approval not to be unreasonably withheld) and in the year 2004
and every fifth year thereafter and also in the last year of the Term whether
determined by affluxion of time or otherwise) in like manner to paint, grain,
varnish, whitewash, colour and paper with paper of a suitable quality all
internal parts of the Premises previously or usually so treated such painting
(both external and internal) to be with two coats of good quality paint
previously approved by the Landlord (such approval not to be unreasonably
withheld).
Keep Tidy
7. Not at any time during the Term to allow or permit any weeds or undergrowth
to accumulate upon the Premises or any part thereof for the time being remaining
unbuilt upon nor to cause or allow any roads or pavements abutting on the
Premises to be untidy or in a dirty condition but at all times to keep the
Premises and the said land, roads and footpaths in a clean neat and tidy state
and condition and free from weeds, deposits of materials and refuse and not to
bring or keep or suffer to be brought or kept upon any land as aforesaid any
materials, equipment or plant or anything which is or might become untidy,
uncleanly or unsightly and within one month of the service thereof to comply
with the requirements of any written notice to restore the amenity as aforesaid
and in the event of the Tenant failing to comply with such notice the Landlord
shall be entitled to enter upon the Premises and carry out any necessary works
arid to recover the cost thereof from the Tenant.
Amenity Land
8. No Clause.
Residence
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9. Not to permit or suffer the Premises or any part thereof to be used as a
residence or sleeping place of any person.
Smoke Abatement
10. To ensure that every furnace employed in the working of engines by steam or
other motive power and every other furnace employed in any building or erection
on the Premises is constructed so as substantially to consume or burn the smoke
arising therefrom and not to use or suffer to be used negligently any such
furnace so that the smoke arising therefrom is not substantially consumed or
burned and not to cause or permit any grit or noxious or offensive effluvia to
be emitted from any engine, furnace, chimney or other apparatus on the Premises
without using the best practicable means for preventing or counteracting such
emission.
Pollution
11. Not to permit any oil or grease or any deleterious objectionable, dangerous,
poisonous or explosive matter or substance to be discharged into any Pipes and
to take all reasonable measures for ensuring that any effluent so discharged
will not be corrosive or otherwise harmful to the Pipes or cause obstruction or
deposit therein nor to discharge or allow to be discharged therein any fluid of
a poisonous or noxious nature or of a kind calculated to or that does in fact
destroy sicken or injure the fish or contaminate or pollute the water of any
stream or river and not to do or omit or allow or suffer to be done or omitted
any act or thing whereby the waters of any stream or river may be polluted or
the composition thereof so changed as to render the Landlord liable to any
action or proceedings by any person whomsoever.
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Drains
12. To bear and pay and indemnify the Landlord against all the costs and
expenses which the Landlord as the Owner of the Premises or any part thereof
during the continuance of the Term ought or would be liable to bear or
contribute to in or about any works, drainage or sewerage by any Act or Acts of
the Oireachtas already made or hereafter to be made or by any direction or
requirement of any local or public Authority in pursuance of any such Act or
Acts PROVIDED ALWAYS that the Tenant shall only be liable to bear and to pay and
indemnify the Landlord against costs and expenses incurred for works drainage
and sewerage within the Premises and to contribute in due proportion meaning the
proportion which the net internal of the Premises bears to the overall area of
Westlink Commercial Park buildings of the costs and expenses incurred for works
drainage and sewerage within Westlink Commercial Park.
Roof and Floor Weighting
13.1. Not without the consent in writing of the Landlord to
(a) suspend any weight from the roof or roof trusses or use the roof or roof
trusses of any building forming part of the Premises for the storage of goods or
to place or permit or suffer to be placed any weight thereon;
(b) bring or permit to remain upon the said Buildings any safes, machinery,
goods or other articles which shall or may strain or damage the said Buildings
or any part thereof.
13.2 On any application by the Tenant for the Landlord's consent under Paragraph
13.1 hereof the Landlord shall be entitled to consult and obtain the advice of
an Engineer in relation to the roof or floor loading proposed by the Tenant and
the Tenant shall repay to the Landlord on demand the fees of such Engineer.
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Refuse
14. Not to deposit or permit to be deposited any rubbish or refuse or to store,
stack or lay out any material used for the purpose of manufacture or otherwise
on any part of the land surrounding the buildings on the Premises except where
such materials are stored or stacked for immediate collection.
Machinery
15. To keep all Landlord's plant apparatus and machinery (including any boilers
or lifts) upon the Premises properly maintained and in good working order and to
ensure by directions to the Tenant's staff and otherwise that such plant
apparatus and machinery is properly operated and to avoid damage to the Premises
by vibration or otherwise.
Unloading
16. Not to unload any goods or materials from carts, wagons or lorries and
convey the same from an estate road or the public highway into the Premises
except through the entrance(s) provided for the purpose and not to cause thereby
congestion of the adjoining estate roads and public highways nor inconvenience
any other use thereof and not to permit any vehicles or animals belonging to the
Tenant or its licensees, servants, agents or other persons calling on the Tenant
or the Premises to stand on the estate road or any footpath or public highway in
the neighbourhood of the Premises and to use its best endeavours to ensure that
such licensees, servants, agents, and other persons calling on the Tenant or the
Premises shall not permit any vehicle or animals to stand on any such estate,
road, footpath or public highway.
User
17.1 Not to do (or permit or suffer to remain upon the Premises or any part
thereof) anything which constitutes an nuisance or causes an injury or damage to
the Landlord or its Tenants or the occupiers of adjacent or neighbouring
Premises.
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17.2 Not to store or bring upon the Premises any article, substance or liquid of
especially combustible, inflammable or dangerous nature and to comply with all
recommendations of the insurers and fire authority as to fire precautions
relating to the Premises.
17.3 Not to use the Premises or any part thereof nor permit the same to be used
for any dangerous, noxious, noisy or offensive trade or business or as a betting
office or for residential purposes nor for any illegal or immoral act or purpose
and no sale by auction shall take place therein.
17.4 To use and occupy the Premises for manufacture and ancillary (including
office) purposes.
Alterations
18.1 Not to excavate or dig remove sell or dispose of any minerals, earth, clay,
gravel, chalk or sand from the Premises nor to sink any well thereon except so
far as shall be approved by the Landlord in writing.
18.2 Not to commit or permit waste and not to cut, remove, divide, alter, maim
or injure the Premises or any part thereof or any of the ceilings, walls,
floors, principal girders or structure of any buildings now or at any time
hereafter forming part of the Premises nor the Pipes in on or under or serving
the Premises nor to
(a) build, erect, construct, or place any new or additional building
erections or work on the Premises or any part thereof;
(b) make any alterations or additions or improvement to the Premises or any
buildings now or at any time hereafter forming part of the Premises.
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18.3 Not to change the design or appearance or decorative scheme of the exterior
of the Premises except with the Landlord's consent (such consent not to be
unreasonably withheld.)
18.4 To remove any additional buildings, additions or alterations made to the
Premises at the expiration or sooner determination of the Term if so requested
by the Landlord.
Planning Acts
19.1 To comply in all respects with the provisions and requirements of the
Planning Acts whether as to the permitted user hereunder or otherwise and to
indemnify (both after the expiration of the Term by affluxion of time or
otherwise and during its continuance) and to keep the Landlord indemnified
against all liability whatsoever including costs and expenses in respect of any
contravention thereof.
19.2 Forthwith to produce to the Landlord any notice, order or proposal,
permission or consent relating to the Premises given or issued to the Tenant by
a Planning Authority under or by virtue of the Planning Acts and at the cost of
the Landlord join with the Landlord in making any objection or representation
against the same that the Landlord shall deem appropriate.
19.3 To obtain at the expense in all respects of the Tenant all planning
permissions and serve all such notices as may be required for the carrying out
of any operations on the Premises or any use thereof at the commencement which
may constitute development provided that no application for planning permission
shall be made without the previous consent in writing of the Landlord.
19.4 Subject only to any statutory direction to the contrary to pay and satisfy
any charge or levy that may hereafter be imposed under the Planning Acts in
respect of the carrying out or maintenance of any such operations or the
commencement or continuance of any such use as aforesaid.
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19.5 Notwithstanding any consent which may be granted by the Landlord under
this Lease not to carry out or make any alteration or addition to the Premises
or any change of use thereof before all necessary notices under the Planning
Acts in respect thereof have been served or before all such notices and all such
necessary planning permissions have been produced to the Landlord and in the
case of a planning permission acknowledged by it in writing as is satisfactory
to the Landlord it being understood that the Landlord may refuse so to express
its satisfaction with any such planning permission on the grounds that any
condition contained therein or anything omitted therefrom or the period thereof
would in the reasonable opinion of the Surveyor be or be likely to be
prejudicial to its interest in the Premises or the building of which the
Premises forms part whether during the Term or following the determination or
expiration thereof.
19.6 Unless the Landlord shall otherwise direct to carry out and complete before
the expiration or sooner determination of the Term;
(a) any works stipulated to be carried out to the Premises by a date
subsequent to such expiration or sooner determination as a condition of
any planning permission granted for any development begun before such
expiration or sooner determination;
and
(b) any development begun upon the Premises in respect of which the
Landlord shall or may be or become liable for any charge or levy under
the Planning Acts.
Statutory Obligations
20.1 At its own expense to do and execute all such works as shall be required at
any time during the Term to be done or executed
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in or upon the Premises by the occupier under or by virtue of any Act being in
force or by the direction of any Local or Public Authority.
20.2 Without prejudice to the generality of the foregoing provisions to comply
in all respects with the provisions of any statutes and any other obligations
imposed by law or by any bye laws applicable to the Premises or in regard to
carrying on the trade or business for the time being carried on by the Tenant on
the Premises.
Access of Landlord and Notice to Repair
21.1 To permit the Landlord at reasonable times to enter upon the Premises for
the purpose of
(a) taking schedules or inventories of fixtures and fittings to be yielded
up at the expiration of the Term; and
(b) ascertaining that the covenants and conditions herein contained have
been duly observed and performed and in particular to view the state of
repair and condition of the Premises and of defects and wants of
repair, cleansing, maintenance amendments and painting then and there
found and to give to the Tenant or leave upon the Premises a notice in
writing specifying any repairs, cleaning, maintenance, amendments and
painting necessary to be done and to require the Tenant forthwith to
execute the same.
21.2 To forthwith repair, cleanse, maintain, amend and paint the Premises as
required by such notice and in accordance with the covenants in that behalf
hereinbefore contained.
21.3 If the Tenant shall not within one month after service of such notice
proceed diligently with the execution of the same or shall have failed to
complete the same within two months to permit the Landlord and its contractors,
agents and workmen to enter upon the
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Premises to execute such works as may be necessary to comply with the same and
to pay to the Landlord the cost of executing such works and all expenses
incurred by the Landlord in connection with the same (including legal costs and
surveyor's fees) within fourteen days of a written demand in that behalf.
Dealing
22.1 Not to assign, charge, underlet nor part with the possession of part only
of the Premises nor to share the occupation of the Premises or any part thereof
with any other person, firm or company, save for such term or in such
circumstance that the other person firm or company does not acquire the right to
claim relief under the Landlord and Tenant Acts.
22.2 In the case of an underlease not to underlet the Premises (or any part
thereof) at a rent below the Rent payable by the Tenant hereunder at the date of
the said underletting.
22.3 Not to assign, charge, underlet nor part with possession of the whole of
the Premises except with the previous written consent of the Landlord which
shall not be unreasonably withheld and upon any assignment or underletting to;
(a) obtain a direct covenant by the assignee or under-tenant with the
Landlord to observe and perform the covenants and restrictions of this
Lease for the remainder of the Term and in the case of an assignment to
pay the rent reserved by this Lease; and
(b) if the Landlord shall require, provide two acceptable Guarantors for
any private limited company.
22.4 To include in or to ensure that there is included in every underlease and
sub-lease similar restrictions on assignment, underletting and parting with
possession and the same provisions for direct covenants with and registration
with the Landlord as those contained in this Lease.
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Signs and Advertisements
23. Not to erect any hoardings or advertising station on the Premises and not to
permit any signs, placards or bills to affixed to any buildings forming part of
the Premises other than such reasonable notices relating to the Tenant's
business which are normally and reasonably displayed subject to the approval of
the Landlord and compliance with the Planning Acts.
24. Not to erect or to bring upon the Premises or any part thereof any hut,
shed, garage, cycle shelter, store, caravan, house on wheels or any building or
erection of a temporary or moveable character, design or nature without the
approval of the Landlord such approval not to be unreasonably refused.
Notices Specifying Breach
25.1 To pay all costs, charges and expenses including Solicitors' costs and
Surveyors' fees incurred by the Landlord for the purposes of and incidental to
the preparation and service of a notice under Section 14 of the Conveyancing
Act, 1881 and Section 2 and 4 of the Conveyancing Act, 1892 or incurred in or
in contemplation of proceedings under the said Sections notwithstanding in any
such case forfeiture is avoided otherwise than by relief granted by the Court.
25.2 To pay all costs, charges and expenses including Solicitors' costs and
Surveyors' fees incurred by the Landlord for the purposes of and incidental to
the service of all notices and schedules relating to wants of repair to the
Premises and whether served during or after the expiration or sooner
determination of the Term (but relating in all cases to such wants of repair
that accrued not later than such expiration or sooner determination).
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Indemnities
26. To be responsible for and to indemnify the Landlord against all damage
occasioned to the Premises or any adjacent or neighbouring Premises or to any
person and to indemnify the Landlord against all actions, claims, proceedings,
costs, expenses and demands made against the Landlord as a result of
(a) any act, omission or negligence of the Tenant or the servants, agents,
licensees or invitees of the Tenant and
(b) any breach or non-observance by the Tenant of the Tenant's Covenants
and other terms hereof.
Re-Letting Boards
27. To permit the Landlord at any time during the last six months of the Term
(or sooner if the Rent or any part thereof shall be in arrear and unpaid for
upwards of one calendar month) to enter upon the Premises and affix and retain
without interference upon any part of the Premises a notice for re-letting the
same and during such period to permit persons with written authority of the
Landlord or its agent at reasonable times of the day to view the Premises
without interruption but so that the Landlord shall not interfere with the
tenants business.
Landlord's Rights
28. To permit the Landlord at all times during the Term to exercise without
interruption or interference any of the rights excepted and reserved to it by
virtue of the provisions of this Lease.
Plans
29. If and when called upon so to do to produce to the Landlord or the Surveyor
all such Plans documents and other evidence as the Landlord may reasonably
require in order to satisfy itself that the provisions of this Lease have been
complied with in all respects.
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Encroachment
30.1 Not to stock up darken or obstruct any windows or lights belonging to the
Premises or any other premises belonging to the Landlord.
30.2 Not to permit any new window, light, opening, doorway, path, passage, drain
or other encroachment or easement to be made or acquired in against out of or
upon the Premises and that in case any such window, light, opening, path,
passage, drain or other encroachment or easement shall be made or acquired or
attempted to be made or acquired the Tenant will give immediate notice thereof
to the Landlord and will at the request and cost of the Landlord adopt such
means as may be reasonably required or deemed proper for preventing any such
encroachment or the acquisition of any such easement.
Yield Up
31. To yield up the Premises at the expiration or sooner determination of the
Term in good and substantial repair and condition in accordance with the
Tenant's covenants and to dismantle and remove from the Premises all the
Tenant's fixtures if so required by the Landlord and to make good any part or
parts of the Premises which may be damaged in such dismantling and/or removal.
Licence Fees
32. To pay all legal costs and surveyors' fees incurred by the Landlord
attendant upon or incidental to every application made by the Tenant for a
consent or licence hereinbefore required or made necessary whether the same be
granted, refused, withdrawn or offered subject to qualifications or conditions.
Interest on Arrears
33. If and whenever the Tenant shall fail to pay the Rent or any other sum due
under this Lease within fourteen days of the due
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date the Tenant shall pay to the Landlord Interest on such Rent or other money
as the case may be from the date when it was due to the date on which it is
actually paid.
Management Company
34. In the event of the Landlord transferring or making over to a Management
Company the common areas of Westlink Commercial Park.
(1) To apply for and accept membership of the Management Company.
(2) Not to assign or transfer the Premises except to a person who has
committed himself to apply to become registered as a member of the
Management Company.
(3) To ensure that any transfer or disposition of this Lease shall contain
a covenant by the Transferee or Disponee in the terms of the preceding
sub-paragraph.
(4) That so long as the Tenant retains any estate or interest in the
Premises it will not resign from or dispose of the rights attaching to
its membership of the Management Company to any person other than a
Mortgagee of the Premises.
(5) That if the Tenant is not a member of the Management Company
(a) The Lessee will carry out the obligations attaching to members
of the Management Company, and
(b) Upon being requested by the Landlord or the Management
Company, the Tenant will apply to become registered as a
member of the Management Company.
Sale of reversion
35. To permit upon reasonable notice (not less than twenty four hours at any
time during the Term prospective purchasers of or dealers
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in or agents instructed in connection with the sale of the Landlord's reversion
or of any interest superior to the Term upon reasonable notice to view the
Premises without interruption providing the same are authorised in writing by
the Landlord or its agents and so as to take account of the Tenant's reasonable
security requirements.
Notices
36. To give full particulars to the Landlord of any notice direction or order or
proposal for the same made, given or issued to the Tenant by any Local or Public
Authority within seven days of the receipt of the same and if so required by the
Landlord to produce the same to the Landlord and without delay to take all
necessary steps to comply with any such notice, direction or order and at the
request of the Landlord to make or join with the Landlord in making, such
objection or representation against or in respect of any proposal for such a
notice, direction or order as the Landlord shall deem expedient.
SCHEDULE V THE LANDLORD'S COVENANTS
Quiet Enjoyment
1. That the Tenant may peaceably and quietly hold and enjoy the Premises without
any lawful interruption or disturbance from or by the Landlord or any person
claiming under or in trust for the Landlord.
Insurance
2.1 To insure and keep insured (unless such insurance shall be vitiated by any
act of the Tenant or the Tenants servants or visitors) in such sum as the
Landlord shall from time to time be advised by the Surveyor as being the full
cost of reinstatement thereof the Premises (together with an appropriate
addition for professional fees and three
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years loss of rent under this Lease) against loss or damage by any or all of the
Insured Risks and to produce to the Tenant on demand either a policy of such
insurance and the receipt for the last premium or reasonable evidence from the
insurers of the terms of the policy and the fact that the same is subsisting and
in effect and (subject as hereinafter provided) in case of destruction of or
damage to the Premises by the Insured Risks or any of them the Landlord will
with all convenient speed take such steps as may be requisite and proper to
obtain any necessary permits and consents under any regulations or enactment for
the time being in force to enable the Landlord to rebuild and reinstate the same
and will as soon as such permits and consents have been obtained, spend and lay
out all monies received in respect of such Insurance (except sums in respect of
loss of rent) in rebuilding or reinstating the part of the Premises so destroyed
or damaged provided always that if the rebuilding or reinstatement of the
Premises shall be prevented or frustrated, all such insurance monies relating
to the Premises shall be the absolute property of the Landlord.
2.2 To use all reasonable endeavours to procure a waiver by the Insurers of
their subrogation rights against the tenant.
Maintenance
3. To undertake the works of maintenance, keeping in good and substantial repair
and condition, reinstatment and (where appropriate) cleansing as are referred to
in Clause 3 Schedule IV hereof and to indemnify the Tenant in respect of the
failure to undertake such works.
IT IS HEREBY AGREED that the Landlord shall be entitled to transfer or otherwise
make over the freehold or other superior interest in the communal parts of
Westlink Commercial Park to a Management Company
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incorporated for this purpose and that in this event the Management Company
shall observe and perform the obligations and covenants on the part of the
Landlord in this Lease in so far as concerns the said communal areas and on such
transfer or making over the obligations of the Landlord to observe and perform
any obligations and covenants in relation thereto shall cease.
IT IS HEREBY CERTIFIED that the consideration (other than rent) for the lease is
wholly attributable to property which is not residential property and 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) which is attributable to
property which is not residential property exceeds five thousand pounds.
IT IS HEREBY FURTHER CERTIFIED that Section 53 (Lease combined with Building
Agreement for dwellinghouse/apartment) of the Stamp Duties Consolidation Act
1999 does not apply to this instrument.
IT IS HEREBY FURTHER CERTIFIED that the Tenant is a qualified person within the
meaning of Section 45 Land Xxx 0000.
IN WITNESS WHEREOF the seals of the parties were affixed hereto and the Landlord
has hereunto signed his name the day and year first herein written.
SIGNED SEALED AND DELIVERED
by XXXXX XXXXX /s/ XXXXX XXXXX
in the presence of;
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PRESENT when the Common Seal
of G & D, Inc.
was affixed hereto. /s/ XXXX XXXXXXX
----------------------
President and Director
PRESENT when the Common Seal
of SEAZUN LIMITED
was affixed hereto; X. X'XXXXXXX
----------------------
Director
[ILLEGIBLE]
----------------------
Director
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1. Definitions
1.2 The Premises
1.3 The Rights
1.4 The Exceptions
1.5 The Pipes
1.6 The Term
1.7 The Rent
1.8 The Tenant's Covenants
1.9 The Landlord's Covenants
l.10 The Insured Risks
1.11 Interest
1.12 The Planning Acts
1.13 Development
1.14 The Surveyor
2. Interpretation
3. The Demise
4. The Covenants
5. Provisoes
5.1 Re-entry
5.2 Effect of Waiver
5.3 Party Walls
5.4 Exclusion of Use Warranty
5.5 Service of Notices
5.6 Suspension of Rent
6. Guarantee
7. Option to Surrender
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Schedules
I The Rights
1 Right of Way
2 Services
II The Exceptions
1 Services
2 Construct Easements
3 Access
4 Light
III Rent Review
1 Definitions and Interpretation
2 The Rent Review
3 Fixing the Reviewed Rent
4 Option of Landlord.
5 Arbitration
6 Memoranda of Revised Rent
7 Payment on Account pending Determination
8 Payment on Determination
9 Statutory Rent Restriction
IV The Tenant's Covenants
1 Rent
2 Outgoings
3 Shared Items
4 Insurance
5 Repair
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6 Decoration
7 Keep Tidy
8 No Clause
9 Residence
10 Smoke Abatement
11 Pollution
12 Drains
13 Roof and Floor Weighting
14 Refuse
15 Machinery
16 Unloading
17 User
18 Alterations
19 Planning Acts
20 Statutory Obligations
21 Access of Landlord and Notice to Repair
22 Dealing
23 Signs and Advertisements
24 Temporary Buildings
25 Notices Specifying Breach
26 Indemnities
27 Reletting Boards
28 Landlord's Rights
29 Plans
30 Encroachment
31 Yield Up
32 Licence Fees
33 Interest On Arrears
34 Management Company
35 Sale of Reversion
36 Notices
V The Landlord's Covenants
1 Quiet Enjoyment
2 Insurance
3 Maintenance
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Dated the 11th day of December 2000
BETWEEN
XXXXX XXXXX
Landlord
G & D, Inc. (t/a as Star Guide Corporation)
Guarantor
SEAZUN LIMITED
Tenant
LEASE
Xxxxxx Xxxxxx & Co.,
Solicitors,
0 Xxx Xxxxxxxx,
Xxxxxx.
Ref: b423_00/KM/CD
37
