Exhibit 10.36
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CITYWEST LIMITED
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First Part
SIGNMAX LIMITED
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Second Part
ACT MANUFACTURING, INC
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Third Part
AGREEMENT FOR LEASE
Re: Xxxx 0000,
Xxxxxxxx Xxxxxxxx Xxxxxx,
Xxxx Xxxx,
Xxxxxx
Xxxxxx Xxx,
00/00 Xx. Xxxxxxx'x Xxxxx,
XXXXXX, 0.
August 18, 1997
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AGREEMENT made the day of 1997 BETWEEN
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CITYWEST LIMITED having its registered office at 00 Xxxxxx Xxxxxx, Xxxxxx 0
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(hereinafter called "the Developer" which expression shall where the context so
admits or requires include its successors and assigns) of the First Part
SIGNMAX LIMITED having its registered office at Grand Canal Quay, Dublin 2
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(hereinafter called "the Tenant" which expression shall where the context so
admits or requires include its successors and permitted assigns) of Second
Part AND
ACT MANUFACTURING, INC of 000 Xxxxxx Xxxxxx, Xxxxxx, XX 00000-0000 U.S.A.
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(hereinafter called "the Surety") of the Third Part.
WHEREAS:
A. The Developer is in the course of procuring the construction of the premises
known as Unit 2008 ("the Demised Unit") Citywest Business Campus, Naas Road,
Dublin.
B. The Unit will extend to approximately 45,000 sq. ft. of gross floor area
inclusive of office accommodation as more particularly described in
the Plans and Specification referred to in the Cover Sheet annexed
hereto as Appendix 1 ("the Plans").
C. Subject to the terms hereinafter appearing the Developer has agreed to
procure that Irish Life Assurance Plc. ("xxx Xxxxxx") shall grant and the
Tenant shall take a Lease of the Demised Unit subject to the terms and
conditions hereinafter appearing such Lease to be in the form of the Lease
annexed hereto as Appendix 2 ("the Lease").
D. The Developer has engaged the following parties to procure the construction
of the Demised Unit:-
(i) Xxxxxx & Xxxxx Contracting Limited as Contractor ("the
Contractor");
(ii) Xxxxx X'Xxxxxxxx & Associates as Architects ("the Developer's
Architect's");
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(iii) Roughan & X'Xxxxxxx as Consulting Engineers;
(iv) Xxxxx Xxxxxx Associates as Mechanical and Electrical Engineers.
NOW IT IS HEREBY AGREED as follows:-
1. CONSTRUCTION
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1.1. The Developer will use all reasonable endeavours to procure that the
Contractor will complete the construction of the Demised Unit
substantially in accordance with the Plans.
1.2. The Developer shall use all reasonable endeavours to procure that the
Contractor proceeds diligently with the construction of the Demised
Unit with a view to completion of the Demised Unit at an early date
but so that neither the Developer nor the Lessor shall have any
liability to the Tenant for delay for any reason in the completion of
the Demised Unit.
2. COLLATERAL WARRANTIES
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The Developer shall procure that the Contractor, the Developer's
Architects and the other parties specified at Recital D hereof shall
furnish to the Tenant on the grant of the Lease pursuant to this
Agreement Collateral Warranties from such parties in the forms of the
Collateral Warranties annexed hereto as Appendix 3 ("the Warranties")
and also Collateral Warranties from the sub-contractors engaged for
the cladding and roofing of the Demised Unit in the form of the Sub-
Contractors Collateral Warranties annexed hereto as Appendix 3.
The Developer shall exercise due skill and care reasonably expected of
an experienced property developer in procuring the construction and
completion of the Demised Unit. Subject to compliance by the Developer
of its obligations herein contained it is agreed that the Developer
shall not otherwise have any liability to the Tenant in relation to
the construction and completion of the Demised Unit.
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3. PLANNING VARIATION
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3.1. The Developer has procured the grant of Planning Permission
Register Reference No. S96A/0590 from South Dublin County Council
("the Grant") in relation to the construction of inter alia the
Demised Unit save and except the items listed in Appendix 4 ("the
Variations") hereto. In addition, the Developer has procured a
Grant of a Fire Safety Certificate Register Reference
S96A/0590/C2 from South Dublin County Council ("the Basic Fire
Certificate") in respect of the construction of approximately
30,000 sq. ft. of manufacturing and office accommodation within
the Demised Unit.
3.2. The Developer shall procure that the Developer's Architects shall
use all reasonable endeavours to lodge a Planning Application
("the Application") in respect of the Variations with South
Dublin County Council as soon as is reasonably practicable
following the execution of this Agreement and to lodge either (i)
an Application for a Fire Safety Certificate in respect of that
part of the Demised Unit which is not already covered by the
Basic Fire Safety Certificate or (ii) a revised Fire Safety
Certificate in respect of the Demised Unit as shown on the Plans
("the Revised Fire Safety Certificate").
3.3. The Developer shall use all reasonable endeavours to procure that
the Application and that the Application in respect of the
revised Fire Safety Certificate are processed without undue
delay.
3.4. This Agreement is conditional upon:-
3.4.1. The Developer procuring an acceptable (as hereinafter
described) Grant of Planning Permission in respect of the
Variations ("the Grant") on or before the lst day of
April l998. The Grant shall be deemed acceptable in
circumstances where the Grant does not (subject as
hereinafter appears) contain any conditions precluding
the carrying out of any of the Variations or the use of
the Demised Unit as intended provided always that any
condition prohibiting the incorporation of the revised
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elevation to the front of the Demised Unit as
contemplated by the Plans shall be deemed an acceptable
condition. In this regard the Developer confirms that the
ground floor and the first floor of the Demised Unit
shall be level.
3.4.2. The Developer procuring the Revised Fire Safety
Certificate in respect of the entire of the Demised Unit
substantially in the form of the Basic Fire Safety
Certificate or (at the Developer's election) a further
Fire Safety Certificate in respect of that part of the
Demised Unit not covered by the Basic Fire Safety
Certificate substantially in the form of the Basic Fire
Safety Certificate on or before the lst day of April
l997.
3.5. The Developer shall furnish to the Tenant the Notification of
Decision to Grant Planning Permission (or any refusal thereof)
("the Notification") within five working days of receipt thereof.
The Developer shall forthwith lodge an Appeal against any refusal
in respect thereof. The Developer shall also appeal the
Notification where the same is not acceptable as hereinbefore
described. Notwithstanding the provisions of Clause 3.4.1. hereof
the Notification shall be deemed to be acceptable in
circumstances where the Tenant does not notify the Developer in
writing that the Notification is unacceptable within ten working
days of receipt by the Tenant of a copy of the Notification.
Nothing herein contained shall prohibit the Tenant from lodging
an Appeal against any of the Conditions in the Notification where
any of the Conditions preclude the carrying out of the Variation
specified at 1 of Appendix 4 or preclude the use of the Demised
Unit as intended.
3.6. Where any Appeal in respect of the Notification is lodged to An
Bord Pleanala the Developer shall furnish a copy of the Decision
of An Bord Pleanala ("the Decision") to the Tenant within ten
working days of receipt thereof and the Tenant shall notify the
Developer in writing within ten working days if in the Tenant's
view the Decision is not acceptable in the manner hereinbefore
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described at Clause 3.4.1. Notwithstanding the provisions of
Clause 3.4.1. hereof the Decision shall be deemed to be
acceptable in circumstances where the Tenant does not notify the
Developer in writing that the Decision is unacceptable within ten
working days of receipt by the Tenant of a copy of the Decision.
3.7. The Developer shall furnish to the Tenant within five working
days of receipt of same a copy of the Revised Fire Safety
Certificate.
3.8. In the event that a dispute arises between the Developer and the
Tenant as to whether or not the Notification or the Decision is
acceptable within the terms hereinbefore described or as to
whether or not the Revised Fire Safety Certificate is in
accordance with the provisions of clause 3.4.2. of this
Agreement, either party may refer the determination of such
dispute to Xxxxx Xxxxx of Xxxxx Xxxxxx Xxxx or if he shall be
unwilling or unable to act to such other Architect as may be
appointed upon the Application of either party by the President
for the time being of the Royal Institute of the Architects of
Ireland ("the Independent Architect"). The Independent Architect
shall act as an expert and not as an Arbitrator and his fees
shall be borne by the party against whom he holds. The
Independent Architect shall give his decision within ten working
days of being requested to act and shall be entitled to receive
written or oral submissions from or on behalf of the Developer
and the Tenant.
4. PRACTICAL COMPLETION
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4.1. For the purposes of this Agreement, the date of practical
completion of the Demised Unit ("the Date of Practical Completion
") shall be date on which the Developer's Architect certifies as
being the date on which in his opinion the Demised Unit has been
practically completed in accordance with the plans ("Practical
Completion"). The Tenant shall within two months from the date
hereof nominate a party who shall act as the Tenant's Architect
("the Tenant's Architect") for the purposes of this Agreement. In
default of such Notification reference to the Tenant's Architect
herein
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shall be deemed to mean the Tenant. The Developer's Architect
shall notify the Tenant's Architect not less than 14 days before
the date on which the Developer's Architect anticipates that he
should issue the certificate of Practical Completion ("the
Certificate of Practical Completion") in relation to the Demised
Unit and shall invite the Tenant's Architect to arrange a joint
inspection with the Developer's Architect of the Demised Unit not
less than two weeks prior to the date that it is anticipated the
Certificate of Practical Completion will issue. The Tenant's
Architect shall notify the Developer's Architect in writing within
five working days of such inspection of any matters which in the
view of the Tenant's Architect should have attention prior to the
issue of the Certificate of Practical Completion and the
Developer's Architect shall take due regard of same but nothing
herein shall limit the right of the Developer's Architect to issue
the Certificate of Practical Completion.
4.2. If the Tenant's Architect shall object to the issue of the
Certificate of Practical Completion he shall do so in writing to
the Developer's Architect such notice to be received by the
Developer's Architect within five days of the date of the issue of
the Certificate of Practical Completion specifying his objections
which shall not include (i) items which are normally dealt with in
a snagging list (which term shall have the meaning understood by
custom in the building trade) and (ii) any items of landscaping
which may reasonably be deferred due to Practical Completion being
achieved outside the recognised planting seasons.
4.3. In the event of a dispute between the Developer's Architect and
the Tenant's Architect as to whether the Certificate of Practical
Completion should have issued having regard to the objections of
the Tenant's Architect then the items in dispute shall be referred
forthwith to the Independent Architect who shall be required to
give a decision within ten days of being requested to resolve such
dispute. The Independent Architect shall act as an expert and not
as an Arbitrator and his fees shall be borne by the party against
whom he holds. Where the Independent Architect finds in favour of
the Tenant and that the Certificate of Practical Completion should
not have issued, the Developer shall procure that the items of
works identified by the Independent Architect required to be
completed to achieve Practical Completion shall be remedied
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forthwith and the provisions of clauses 4.1, 4.2 and 4.3 hereof
shall be repeated mutatis mutandis with the substitution of "ten
working days" with "five working days".
5. RENT CALCULATION
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5.1. The rent to be reserved by the Lease (for the first five years
thereof) shall be ?6.20 per annum per sq. ft. of the Gross
External Area of the Demised Unit calculated in accordance with
the Code of Measuring Practice issued by the Society of Chartered
Surveyors with others. The Gross External Area of the Demised
Unit shall be measured and ascertained by the Developer and the
Tenant on such date as the Developer shall notify to the Tenant
and in the event of there being a dispute as to the Gross
External Area the matter shall be determined by an Independent
Chartered Surveyor as set out hereunder:-
5.1.1. The Developer and the Tenant shall endeavour to agree the
Gross External Area of the Demised Unit;
5.1.2. If they cannot do so the Gross External Area shall be
determined by such Independent Chartered Surveyor as the
parties may agree or in default of agreement by such
Chartered Surveyor as may be nominated upon the
application of either party by the President (or other
acting senior officer) of the Society of Chartered
Surveyors;
5.1.3. The Independent Surveyor so appointed shall act as an
Expert and shall afford to the Developer and the Tenant a
reasonable opportunity of stating (whether in writing or
otherwise as may decided by him and within time as he may
stipulate in that behalf) reasons in support of such
contentions as each party may wish to make relative to
the matter or matters under consideration.
5.2. The determination of the Independent Surveyor shall be binding on
the parties and his costs shall be borne by the party against
whom he holds.
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5.3. In the event of the Gross External Area not having been agreed by
the Lease Commencement Date the Tenant shall pay to the Developer
rent based on a deemed Gross External Area of 45,000 sq ft and
within fourteen days of agreement on or determination of the
Gross External Area there shall be paid by the Developer to the
Tenant (or vice versa) any excess or underpayment (as the case
may be) in respect of the period for which rent has been paid. If
the rent in the Lease is calculated by reference to the deemed
Gross External Area as aforesaid then the parties shall enter
into a memorandum supplemental to the Lease recording the
adjusted yearly rent calculated with reference to the Gross
External Area agreed or determined in accordance with the
provisions of this Agreement.
6. GRANT OF LEASE
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6.1. At the time of the execution of this Agreement, the Tenant and
the Surety shall execute the Lease in duplicate and both shall be
held by the Developer's Solicitors in escrow pending satisfaction
of Clauses 3.4 -3.8. hereof and the completion of the
construction of the Demised Unit to a stage of Practical
Completion as certified in accordance with clause 4 hereof.
6.2. The Tenant shall become liable to comply with all the covenants
on the part of the Tenant and conditions contained in the Lease
from the Date of Practical Completion so certified or (if
applicable) such later date as the Independent Architect
certifies as being the date on which Practical Completion of the
Demised Unit has been achieved.
6.3. The Developer shall subject to receipt of the relevant stamp duty
stamp the original and counterpart of the Lease and shall return
the original thereof to the Tenant as soon as practicable duly
executed by the Lessor.
6.4. The Tenant shall also deliver to the Lessor on the signing hereof
an Opinion addressed to the Lessor and its successors and assigns
from the Surety's lawyers, Messrs. Xxxxx, Xxxxxxx & Xxxxxxxxx,
LLP in the form annexed hereto
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as Appendix 5. In addition, the Tenant shall procure that the
Surety shall furnish an updated Opinion in similar form to the
Lessor immediately prior to the grant thereof to the Tenant.
6.5. The term of the Lease held in escrow shall commence upon the Date
of Practical Completion as certified by the Developer's Architect
(or as determined by the Independent Architect if appointed) and
the Tenant with the consent of the Surety hereby irrevocably
authorises the Developer to insert this date in the Lease and
counterpart thereof and also to insert the annual rent as agreed
pursuant to clause 5.1. or as calculated pursuant to clause 5.3.
(as the case may be).
7. PAYMENT FOR VARIATIONS/FIT-OUT
7.1. The parties acknowledge that the rental figure of ?6.20 per annum
per foot of the Gross External Area referred to a clause 5.1. is
agreed in respect of the completed Demised Unit as shown in
accordance with the Plans and Specification referred to in the
cover sheet annexed hereto as Appendix 10 ("the Basic Plans").
7.2. The Tenant agrees that it shall be responsible for and shall pay
to the Developer the reasonable and proper additional costs and
expenses together with Value Added Tax thereon ("the Additional
Costs") incurred by the Developer as certified by the Developer's
Architect in procuring the modification and variation of the
Demised Unit from that as shown in the Basic Plans to that as
shown in the Plans and also in respect of any further changes
from the Basic Plans which the Developer agrees to procure such
agreement not to be unreasonably withheld or delayed provided any
such changes do not adversely affect the value of the Demised
Unit and that any such further changes do not materially delay
Practical Completion.
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For the avoidance of doubt where any items or part thereof shown
on the Basic Plans are omitted prior to installation the Tenant
shall be allowed a credit in respect of such savings against the
cost of the other modifications and variations.
7.3. Payment of the Additional Costs (less the sum of ?50,000 which
the Developer will bear as a contribution towards such costs)
shall be made by the Tenant to the Developer within ten working
days after the issue of the Developer's Architects Certificate of
same and in this respect the Developer shall furnish to the
Tenant on request full details and backup in relation to the
computation and calculation of the Additional Costs.
8. PAYMENTS
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Upon the Date of Practical Completion as certified or (as the case may
be) determined in accordance with Clause 4 hereof, the Tenant shall pay
to the Developer (1) an amount equal to one quarter of the annual rent
(or deemed initial annual rent pursuant to clause 5.3) payable in respect
of the Demised Unit (2) Value Added Tax payable on the granting of the
Lease PROVIDED ALWAYS that the Landlord shall co-operate with the Tenant
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in order to assist the Tenant to avail of the VAT Form 4A procedure on
the grant of the Lease, (3) Stamp Duty payable on foot of the Lease and
Counterpart (4) one quarter's estimated Service Charge being the Advance
Payment of Service Charge specified in the Lease and (5) a payment on
account the first year's insurance premium payable by the Tenant under
the Lease as notified by the Developer to the Tenant.
9. FITTING-OUT
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9.1. The Tenant shall be solely responsible at its own expense for the
fitting out and furnishing of the Demised Unit so as to enable the
Tenant to occupy and trade from the Demised Unit in accordance
with the fitting out details to be approved in writing by the
Lessor pursuant to sub-clause (2) hereof.
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9.2 Prior to undertaking any fitting-out of the Demised Unit, the
Tenant shall submit to the Developer's Architect for approval by
the Lessor all details, specifications, drawings and other
information (hereinafter called "the fitting out details") in
relation to the fitting out of the Demised Unit.
9.3. Before carrying out any fitting out of the Demised Unit the
Tenant shall obtain all necessary Planning Permissions, Fire
Safety Certificate, Licences or consents whether statutory or
otherwise and the Tenant shall further ensure that all such
fitting out works shall comply therewith.
9.4. Upon completion of the fitting out works, the Tenant shall
forthwith notify the Lessor, and the Lessor's Architect shall be
at liberty to inspect the same if the work has been carried out to
the satisfaction of the Lessor or its Architect, the Tenant's
Architect shall forthwith issue to the Lessor a certificate that
the Tenant has executed the works in accordance with the fitting
out details and pursuant to the necessary statutory consents.
10. POSSESSION
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Upon becoming entitled to take possession of the Demised Unit the Tenant
shall be deemed to take possession of the Demised Unit with full
knowledge of the actual state and condition of the Demised Unit as to
repair, finishes, means of access, enjoyment of light and air, party
walls and otherwise, and shall take the same as it stands.
11. NO ASSIGNMENT
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The Tenant shall not assign, underlet, mortgage, charge, share, part with
or otherwise in any way whatsoever (either directly or indirectly) deal
with its/his interest under this Agreement or any part thereof.
12. TITLE
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The title to be shown by the Lessor shall consist of the copy documents
referred to in the Schedule contained at Appendix 6 hereto.
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13. PLANNING
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The Developer shall furnish to the Tenant the copy Planning Permission
and Fire Safety Certificate listed in Appendix 7 hereto. The Developer
will furnish to the Tenant at the time of delivery of the Lease to the
Tenant Opinions on Compliance with Planning Permission and Building
Regulations from the Developer's Architects in the forms annexed hereto
as Appendix 8 and copies of the documentation lodged with the Building
Control Authority on foot of the Application for the said Fire Safety
Certificate together with the Drawings of the Demised Unit in CAD form, a
copy of the Commencement Notice, receipts for financial contributions due
on foot of the Planning Permission in relation to the Demised Unit,
insurance details and a waiver of subrogation rights.
14. OPTION LANDS
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The Developer, the Tenant and the Surety shall enter into an Option
Agreement in respect of the Option Lands on the grant of the Lease in the
form annexed hereto at Appendix 7. The Tenant and the Surety shall
execute the said Option Agreement in duplicate prior to the grant of the
Lease and shall deliver same to the Developer in sufficient time to
enable same to be delivered to the Tenant duly executed by the Developer
at the time of the grant of the Lease to the Tenant.
15. NOTICES
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15.1 Any notice under this Agreement shall be effectively given if
sent by post or delivered to the intended recipient or its
Solicitors at its, his or their last known address. Where sent by
post the notice shall be deemed to be served on the second day
after posting.
15.2 Where the last day for taking any step would but for this
provision be Christmas Day, Good Friday, a Saturday or Sunday or a
Public Holiday such last day shall be the next following working
day instead.
16. SURETY
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The Surety jointly and severally covenants with the Developer that
the Tenant shall perform and observe the covenants and conditions on the
part of the Tenant herein contained and that the Surety shall be a party
to the Lease in the manner therein provided.
17. JURISDICTION
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This Agreement shall be construed in accordance with the Laws of
Ireland.
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APPENDIX 1
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See Cover Sheet of Plans and Specification Annexed
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APPENDIX 2
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See Occupational Lease Annexed
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APPENDIX 3
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See forms of Collateral Warranties Annexed
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APPENDIX 4
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Variations
1. Provision of dock leveller to rere of the Demised Unit as shown on the
Plans.
2. Variations of front facade of additional bay from that as shown on the
Basic Plans to that as shown on the Plans.
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APPENDIX 5
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See form of U.S. Attorney's Opinion Annexed.
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APPENDIX 6
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Title to be furnished by Lessor
1. Certified copy Superior Lease dated 25th January l996 made between
Citywest Limited of the one part and Irish Life Assurance Plc. of the
other part.
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APPENDIX 7
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Planning Permission and Fire Safety Certificates
1. Notification of Grant of Planning Permission Register Reference No.
S96A/0590 issued by South Dublin County Council.
2. Fire Safety Certificate Register No. S96A/0590/C2 issued by South Dublin
County Council.
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APPENDIX 8
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See Opinions on Compliance Annexed
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APPENDIX 9
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See Option Agreement Annexed.
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APPENDIX 10
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The Basic Plans
See Cover Sheet Annexed hereto.
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APPENDIX 11
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Brief Details of Modification/Variations
See List Annexed
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IN WITNESS whereof the parties hereto have either caused their Common Seals to
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be affixed hereto or have signed or caused to have signed on this Agreement on
their behalf the day and year first herein written.
PRESENT when the Common Seal
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of THE DEVELOPER was affixed
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hereto:-
PRESENT when the Common Seal
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of THE TENANT was affixed
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hereto:-
SIGNED by [ ]
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on behalf of THE SURETY
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duly authorised:-
