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DATED THE 25TH DAY OF APRIL, 2005
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INSTRUMENT OF LEASE
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OCEANIC DIGITAL JAMAICA LIMITED
TO
CONVERGENT TECHNOLOGIES LIMITED
XXXXX & CO.
ATTORNEYS-AT-LAW
00-00 XXXXXXXXX XXXXXXXXX
XXXXXXXX 0
XXXXX XXXXXX
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INSTRUMENT OF LEASE
UNDER THE REGISTRATION OF TITLES ACT
THIS LEASE is made the 25th day of April Two Thousand and Five BETWEEN
OCEANIC DIGITAL JAMAICA LIMITED a company duly incorporated under the Companies
Act and having its registered office at 00-00 Xxxxxxxxx Xxxxxxxxx, Xxxxxxxx 0 in
the parish of Saint Xxxxxx (hereinafter referred to as "the Lessor" which
expression .;shall where the context so admits include the person for the time
being entitled to the reversion immediately expectant on the determination of
the term hereby created) of the ONE PART and the party whose name, address and
description are set out in Item I of Schedule II (hereinafter referred to as
"the Lessee" - which expression shall where the context so admits mean and
include the Xxxxxx's assigns, successors, and transferees) of the OTHER PART and
WITNESSETH as follows:
1. INTERPRETATION
In this Lease, where the context so admits, the expression:-
(1) "THE TERM" means the term of years hereby created and
specified at Item 3 of SCHEDULE II together with any statutory
or other continuation or extension thereof;
(2) "THE STRATA LOT" means the Strata Lot mentioned in Item 2 of
SCHEDULE II of which the leased premises comprise a part;
(3) "THE BUILDING" means the buildings and other improvements
erected on ALL THAT parcel of land being the Lot numbered four
(4) part of KNUTSFORD PARK in the Parish of Saint Xxxxxx as
appears by the Plan of part of Knutsford Park now known as New
Kingston prepared by Xxxxx X. Xxxxx, Commissioned Land
Surveyor and being a part of the lands formerly comprised in
Certificate of Title registered at Volume 1140 Folio 917-926
of the Register Book of Titles now known as The Towers, NEW
KINGSTON, of which the Strata Lot forms a part;
(4) "THE LEASED PREMISES" means and includes ALL THAT portion of
the Strata Lot described in Item 2 of SCHEDULE II together
with all permitted fixtures, alterations, improvements and
additions to the same and including the rights in connection
therewith endorsed on the Certificates of Title therefor and
imposed or implied under the Registration (Strata Titles) Act;
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(5) "UNIT ENTITLEMENT" means the number of individual shares in.
the common property contained in the building which is
ascribed to a Strata Lot on the Certificate of Title for such
Strata Lot;
(6) "ANNUAL OPERATING Costs" shall mean such aggregate sums as
shall enable the Lessor from time to time during each year of
the Term to pay all of the expenses, outlays and contingencies
for the provision of services set out in Item 10 of SCHEDULE
II which relate to all strata lots and common areas in the
building including the provision by the Lessor in any year (if
necessary) for any expense which accrued or became payable in
a previous year or years (in accordance with ordinary
accounting principles) which expense may be spread over any
number of accounting years as the Lessor may see fit and
including also such sums as the Lessor with its auditors'
concurrence deem it prudent to reserve against liabilities or
expense then accrued or thereafter to accrue although not
payable in that year. The Annual Operating Costs shall be
ascertained by the Lessor in relation to each calendar year of
the Term;
(7) "THE COMMENCEMENT DATE" means the date set out at Item 4 of
SCHEDULE II;
(8) "THE PLANNING ACTS" means the Local Improvements Act, the Town
and Country Planning Act and any similar or related
legislation or any statutory modification or re-enactment
thereof for the time being in force and any order, instrument,
plan, regulation, permission and direction made or issued
thereunder or deriving validity therefrom;
(9) "THE PLANS" mean the plans (if any) attached to this Lease for
purposes of identification; (10) "THE UTILITIES" mean air,
water, sewerage of all kinds, gas, electricity,
airconditioning, telephone and other services;
(11) "THE CONDUITS" mean gutters, gullies, pipe drains, sewers,
watercourses, channels, ducts, flues, wires, cables and other
conducting media;
(12) words importing the masculine gender only, shall include the
feminine and neuter genders;
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(13) words importing the singular shall include the plural and vice
versa, and where there are two or more persons included in the
expression "the Lessee", covenants expressed to be made by the
Lessee, shall be deemed to be made by such persons jointly and
severally;
(14) the headings appearing in this lease are inserted for
convenience of reference only and shall not in any manner
affect the construction meaning or effect of anything herein
contained or govern the rights or liabilities of the parties
thereto.
2. IN CONSIDERATION of the rents, Xxxxxx's covenants and agreements
hereinafter reserved and contained the LESSOR HEREBY LEASES unto the Lessee the
leased premises TOGETHER WITH the full right and liberty for the Lessee its
servants and licensees and invitees in common with the Lessor and other persons
having the like right at all times during the permitted hours and for all
purposes connected with the leased premises but not for any other purpose to
pass and xxxxxx to and from the leased premises over and along the staircases,
lifts and any other ways leading to the leased premises for the term of years
set forth at Item 3 of Schedule II from the commencement date set forth at Item
4 of Schedule II but subject to determination as is hereinafter provided and
EXCEPTING AND RESERVING unto the Lessor and to all persons authorised by it or
entitled thereto the free and uninterrupted passage of gas, water, soil,
electricity and other services through the pipes, drains, channels, cables and
wires which are or at any time now or hereafter in or under the leased premises
TO BE HELD by the Lessee for the said term upon the terms and conditions herein
set forth the Lessee paying during the said term:
(a) the yearly rental set forth at Item 5 of Schedule 11
hereto in the manner and at the times therein set
forth (hereinafter referred to as "the rent")
(b) the monthly maintenance charge described in clause 3
hereof at the times and in the manner therein set
forth.
3. MAINTENANCE CHARGES
(1) MONTHLY MAINTENANCE CHARGE
The monthly maintenance charge hereinbefore referred to shall
be one-twelfth of the Lessee's portion of the annual operating
costs in relation to the Strata Lot and the building (as
defined in clauses 3 (2) (a) and 3 (2) (b) hereof).
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(2) LESSEE'S PORTION OF ANNUAL OPERATING COSTS
(a) The Lessee's portion of all operating costs other
than electricity charges shall be calculated by
multiplying the said Annual operating Costs by the
Unit Entitlement of the Strata Lot and the area of
the Leased Premises and dividing the product so
obtained by the product of the total Unit Entitlement
of all Strata Lots in the building multiplied by the
total rentable area in the Strata Lot.
THUS: Annual Unit Area of
Operating Entitlement of leased
Costs X Strata Lot X premises
Total Unit Total
Entitlement Rentable
All Strata Areas in
Lots in Strata
Building Lot
(b) ELECTRICITY AND WATER CHARGES
(i) For as long as the entire building shares common
electricity meters then the Lessee's portion of these
charges shall be calculated in the manner provided by
sub-clause 3(2)(a) above. However, the electricity
usage of the following areas shall be excluded from
the above calculation:
(a) Switch Room
(b) Call Centre Station (5th Floor)
The electrical usage of the abovementioned areas
shall be deducted from the general bill, the
remainder of which will be apportioned amongst the
tenant per square footage. The electrical usage of
the abovementioned areas will be calculated by the
use of "MODBUS Network Cabling".
(ii) In the event that the Strata Lot should obtain it's
own electricity meter(s) then the Lessee's portion of
these charges shall be calculated by dividing the
total of these charges by the total square footage of
rentable area in the Strata Lot and then multiplying
the resultant amount by the square footage of the
leased premises.
If at any time all rentable area in the Strata Lot to
which these charges apply is not fully occupied then
the Lessee's portion of these charges shall be
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calculated by the Lessor to reflect as nearly as
possible the actual consumption by the Lessee of
these services AND shall in no event be less than the
portion which would have applied if all rentable area
in the Strata Lot had been fully occupied.
(3) OTHER COMMON EXPENSES
Common Expenses include, but not limited to, expenses related to
Electricity, Elevator Repairs, Water, Insurance, Air Condition
Maintenance, Repairs and Maintenance to Building, Labour Costs,
Property Tax, Standby Repairs and Maintenance, Fuel for Standby and
Security Personnel.
(4) ESTIMATED MONTHLY MAINTENANCE CHARGE
The Lessor shall at the commencement of each calendar year, and
thereafter from time to time during such year as often as may be
necessary, make a genuine pre-estimate of the monthly maintenance
charge (herein called "the estimated monthly maintenance charge") and
the Lessee shall upon each day fixed for the payment of rent pay to the
Lessor the estimated monthly maintenance charge it being understood and
agreed that as soon, after the end of each calendar year as the monthly
maintenance charge for the said year is determined the Lessee shall
pay, or be refunded by the Lessor as the case may be the amount by
which the monthly maintenance charge during each month of the Lease
over the preceding calendar year of the term exceeds or is less than
the estimated monthly maintenance charge during each such month.
(5) AUDITED STATEMENT OF ACCOUNT
As soon as possible after the end of each calendar year the Lessor
shall prepare or cause to be prepared an audited statement of account
which shall show all relevant figures and calculations relied upon by
the Lessor for the determination of the monthly maintenance charge and
shall make the same available to the Lessee. The cost of preparing such
audited statement of accounts shall be borne by the Lessee and shall be
paid by the Lessee to the Lessor.
(6) The Lessor shall whenever fixing the estimated monthly charge provide
to the Lessee full and adequate figures and explanations so as to
enable the Lessee to ascertain how the charge has been arrived at. The
certificate of the Lessor's auditors that the monthly
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maintenance charge has been computed in accordance with this agreement
and is correct shall be absolute and binding upon the parties.
(7) Notwithstanding the foregoing provisions of this paragraph and the
provisions of Item 10 of Schedule II the Lessor reserves the right to
install the necessary metering or other device for measuring or
ascertaining the actual consumption of water or electricity or both by
the Lessee on the Leased Premises or by any machinery, equipment or
apparatus being used by the Lessee on the leased premises. The Lessee
shall permit the Lessor and its agents access to the leased premises at
all reasonable times for the purpose of monitoring checking and
repairing any such metering device installed therein where applicable.
The cost (including the direct cost of obtaining and installing the
metering device or referred to in this subclause) shall be borne by the
Lessee in respect of the leased premises and shall be calculated by
substituting the actual costs as ascertained by metering for the
proportion ascertained for electricity and water under the other
provisions hereof.
4 THE LESSEE HEREBY COVENANTS WITH THE LANDLORD:
(1)
(a) RENT
To punctually and regularly pay the rents reserved and other
moneys payable under this Lease on the days and in the manner
herein provided clear of all deductions whatsoever. If the
aforementioned rent maintenance charges and other moneys
payable under this Lease are not paid on the due dates and
such non-payment continues for thirty (30) days and over, the
Lessee shall pay to the Lessor interest upon such arrears at a
rate equivalent to one percent (1%) above the interest rate
charged for commercial loans by any commercial bank selected
by the Lessor.
The Lessor's rights herein shall be in addition to and shall
not affect or prejudice in any way any other rights of the
Lessor in this lease.
(b) UTILITIES AND SERVICES CONTRACTED BY THE LESSEE
To pay all charges and outgoings for all Utilities or services
contracted by the Lessee which do not form a part of the
monthly maintenance charge.
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(c) SECURITY DEPOSIT
(i) To pay a security deposit of two (2) months rental
payable on signing.
(ii) Maintenance will be paid during the one (1) month
buildout
(2) (a) UPKEEP
To keep the interior of the leased premises and the
appurtenances thereof including the carpeting therein, the
doors, inside windows, the sanitary and water apparatus
therein (if any) and all the Lessor's fixtures at all times
cleaned and maintained in a good and substantial state of
repair, fair wear and tear excepted, and promptly to replace
any of the fixtures or fittings therein which are damaged or
destroyed, subject to recovery under any insurance policies
required to be effected by the Lessor hereunder.
(b) WINDOWS
Not to clean the windows of the Leased Premises with any
material, abrasive or otherwise which may damage the said
windows or the tinting of same.
(c) RE-PAINTING
In every third year during the continuance of this Lease (or
more often if necessary in order to keep the Leased Premises
free of offensive marks) and at the end of the Term to cause
the painted areas in the interior of the Leased Premises to be
properly repainted with two coats of paint of equivalent
standard to that currently thereon and so that such repainted
areas shall be of the original tint or colour.
(d) CONTRACTOR
Any repainting or upkeep to be effected by the Lessee under
the provisions of this Lease shall be carried out by a
contractor or parties nominated or approved by the Lessor.
(e) PLUMBING
Not to use any wash basin, lavatory and other plumbing
facility in the Leased Premises or the building for any
purpose other than that for which it was intended and not to
throw or permit to be thrown any foreign matter or articles
therein.
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(f) ALTERATION
(i) Not to cut, maim or injure any of the walls, floors,
beams, ceilings, wires, pipes, drains, appurtenances,
fixtures or fittings of or in the Leased Premises or
permit the same to be done nor without the prior
written consent of the Lessor, such written consent
not to be unreasonably withheld, to make any
alterations or additions in or to the leased premises
or the structure of the building or change the
location or style of any partitions or permanent
fixtures nor to add or in any way interfere with the
electric cables switches junctions or points or the
pipes taps or other apparatus installed in connection
with the supply or use of electricity water or gas or
the telephone installation and prior to taking
possession, to provide the Lessor with a plan of the
layout of each floor of the Leased Premises. Any
damage done to the leased premises or the building in
carrying out such or any other work as may be
permitted shall be made good immediately by the
Lessee at the Lessee's expense.
(ii) In the event that the Lessor consents to any
alterations, to provide the Lessor with plans and
specifications setting out the proposed alterations
and to pay to the Lessor any costs and expenses
incurred in connection with the approval and
supervision of such works.
(3) DANGEROUS ARTICLES
Not to store or bring into or upon the building or the Leased Premises
or any part thereof or suffer or permit or allow to be so stored or
brought in any article or matter of a dangerous combustible or
inflammable nature.
(4) AVOID INSURANCE
Not to do or permit or suffer to be done any act deed matter or thing
whatsoever whereby the present or any future policy of insurance on the
building and/or on the leased premises may be rendered void or voidable
or whereby the rate of premium thereon may be increased and to repay to
the Lessor upon demand all sums paid by way of increased premiums
occasioned by any breach of the provisions of this sub-clause or by the
permitted use by the Lessee of any electrical equipment or other
appliances.
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(5) TO GIVE NOTICE OF DAMAGE
In the event the Leased Premises or any part thereof is damaged or
destroyed by any risks against which the Lessor is obliged to insure
hereunder, to give immediate notice in writing to the Lessor and to
cooperate without charge in all ways in the making of any claims for
damage or destruction on insurance.
(6) TO PAY COST OF REPAIR IF INSURANCE IS INVALIDATED
In the event of the Leased Premises or any part thereof being destroyed
or damaged and the insurance money under any insurance effected by the
Lessor being wholly or partly irrecoverable by reason of any act or
default of the Lessee, then and in every such case, the Lessee will
forthwith (in addition to the said rent) pay the whole or (as the case
may require) a fair proportion of the cost of completely rebuilding,
reinstating or replacing the same.
(7) PERMITTED USE
To use the Leased Premises and every part thereof only for the
permitted use set out in Item 7 of SCHEDULE II and for no other
purpose.
(8) STRUCTURAL LOAD
Not to suspend or permit to be suspended any heavy load from the main
structure of the building or the Leased Premises or any part thereof
nor to load or permit to be loaded or use the floor or structure of the
Leased Premises in any manner which will impose a weight or strain in
excess of that which the Leased Premises is constructed to bear with
proper margin for safety or which will in any way strain or interfere
with the main supports thereof.
(9) SIGNS AND ADVERTISEMENTS
Not to affix or have exposed on the Leased Premises any sign,
signboard, advertisements or indication of the occupation of the Lessee
on or near any wall, door, window, stair or other portion of the
building or the Leased Premises except those already affixed to the
building or otherwise authorized by the Lessor in writing.
(10) TELEVISION OR RADIO APPARATUS
Not without the previous consent in writing of the Lessor to erect on
or affix to the premises any apparatus for the reception or
transmission of television radio or wireless
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telegraphy nor to install any loudspeakers, sound amplifiers or similar
apparatus in the leased premises and in the event of such permission
being obtained not to play such apparatus so as to make the same
audible outside of the Leased Premises and not to make any claim
against the Lessor in respect of any disturbance or interference with
the reception or transmission of television, radio or wireless
telegraphy howsoever caused.
(11) ILLEGAL PURPOSE
Not to use the building or the leased premises or any part thereof nor
allow the same to be used for any illegal or immoral purpose.
(12) AUCTION
Not to hold or permit or suffer to be held any sale by auction on the
leased premises.
(13) CATERING
Not to carry on or permit to be carried on within the Leased Premises
any introduction or preparation of cooked food without the prior
consent in writing of the Lessor and except in strict compliance with
the terms of any such consent.
(14) OBSTRUCTION AND REFUSE DISPOSAL
Not to obstruct any walkway, access to or egress from the building or,
any part thereof or put any refuse outside of the Leased Premises but
to store all the refuse in proper bins or containers within the Leased
Premises and to remove the same daily from the building and place the
same within such receptacles and areas as the Lessor may from time to
time designate, to the satisfaction of the Lessor.
(15) ASSIGNMENT
Not to assign underlet or part with possession or the right to
possession or control of the Leased Premises or any part thereof
whether by way of license trust or otherwise howsoever without the
written consent of the Lessor such consent however not to be
unreasonably withheld in the case of a substantial and responsible
lessee, and not to mortgage or charge the Xxxxxx's interest in the
same.
Any change in the majority of the shareholding of the Lessee shall for
the purposes of this clause be deemed to be an assignment and such
assignment will require the consent of the Lessor which consent shall
not be unreasonably withheld or delayed provided that if the Lessor
shall consent to any assignment of this lease then and in any such case
the Lessee
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may be required to join in such assignment as security in respect of
the performance and observance of the terms covenants conditions
stipulations and agreements herein contained by the assignee.
(16) NUISANCE
Not at any time during the said term to use exercise or carry on or
permit or suffer to be used, exercised or carried on in or upon the
leased premises or any part thereof any noxious, noisome or offensive
or dangerous art, trade, business, occupation or calling and no act,
matter or thing whatsoever shall at any time during the said term be
done in or upon the leased premises or any part thereof which shall or,
may be or grow to be an annoyance, nuisance, grievance, disturbance,
damage or distress to the Lessor or any Lessee thereof or of any other
occupiers of the building or of the occupiers of the adjoining lands or
properties.
(17) INSPECTION
To permit the Lessor and its agents with or without workmen and others
at all reasonable times upon giving three (3) days previous notice in
writing to the Lessee to enter into and upon and to view and examine
the state and condition of the Leased Premises and thereupon the Lessor
may serve upon the Lessee a notice in writing specifying any cleaning,
maintenance, repairs or replacements required to be executed or done by
the Lessee in accordance with the terms of this Lease and require the
Lessee forthwith to execute or do the same and if the Lessee shall not
within thirty (30) days after the service of such notice, using an
approved Contractor or Contractors complete or commence and proceed
diligently and carefully with the execution of such cleaning or
maintenance or carrying out of such repairs or replacements required to
be executed or done by the Lessee then the Lessor shall have the right
to enter into and upon the Leased Premises with such workmen and
appliances as may be necessary and execute such cleaning or maintenance
or carry out such repairs or replacements and in which event the Lessee
shall pay to the Lessor upon demand the Lessor's costs and expenses of
executing such cleaning or maintenance or carrying out such repairs or
replacements. The Lessor shall have the right to recover such costs and
expenses from the Lessee as additional rent. The Lessor shall not in
any circumstances be liable to the Lessee or to any other person for
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any loss injury or damage occasioned by or as a result of the Lessor's
exercising its rights hereunder to carry out or have carried out any
such cleaning, maintenance, repairs or replacements, except where such
loss injury or damage arises as a result of the negligence or willful
act of the Lessor, its servants, agents or workmen.
(18) EMERGENCIES
To permit the Lessor to enter the Leased Premises at any time in any
emergency, and only in the presence of an authorized representative of
the Lessee and also for the purposes of doing such works and things as
may be lawfully required to be done by the Lessor in respect of any
repairs, alterations or improvements either of the Leased Premises and
the air-conditioning apparatus, the conduits, or of any other parts of
the building and its amenities PROVIDED THAT such repairs, alterations
and/or improvements are not conducted in such a manner as to be a
nuisance or annoyance to the Lessee and also with the written authority
of the Lessor to permit the tenants and occupiers of any adjoining
premises or parts thereof with their agents and workmen likewise
PROVIDED they shall have given reasonable notice to enter the Leased
Premises for the purpose of executing repairs or alterations which
cannot reasonably be executed otherwise and further provided however
that any such Lessee or occupier of adjoining premises exercising such
rights shall make good to the Lessee any damage thereby occasioned to
the Leased Premises.
(19) REGULATIONS
To observe and conform to all reasonable regulations and restrictions
made by the Lessor for the proper management of the Leased Premises and
the building and notified in writing by the Lessor to the Lessee from
time to time.
(20) TO COMPLY WITH STATUTORY PROVISIONS
At all times during the Term, to observe and comply in all respects
with the provisions and requirements of any and every present or future
statutory enactment and order, regulation and bye-law including the
Planning Laws and Regulations, so far as they relate to or affect the
Leased Premises or any additions or improvements thereto or the user
thereof or the use or employment therein of any person or persons or
any fixtures, machinery, plant or chattels for the time being affixed
thereto or being thereupon used, exclusive of any requirement for
structural repairs or additions, and to carry out new
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requirements and to execute all works, exclusive of structural repairs
and additions as aforesaid, and provide and maintain all arrangements
which (by or under any enactment or by any government department, local
authority or other public authority or duly authorised officer or Court
of competent jurisdiction acting under or in pursuance of any
enactment) are or may be directed or required to be executed, provided
and maintained at any time during the said Term upon or in respect of
the Leased Premises or any additions or improvements thereto or in
respect of any such user thereof or employment therein of any person or
persons or fixtures, machinery, plant or chattels as aforesaid whether
by the owner or occupier thereof and to indemnify the Lessor at all
times against all costs, charges and expenses of or incidental to the
execution of works which the Lessee is obliged to carry out hereunder,
or the provision or maintenance of any arrangement so directed or
required as aforesaid and not at any time during the Term to do or omit
or suffer to be done or omitted on or about the Leased Premises, any
act or thing, by reason of which the Lessor may under any enactment
incur or have imposed upon it or become liable to pay any penalty,
damages, compensation costs, levy, charges or expenses.
(21) TO MAKE GOOD BREACHES OF COVENANT
Within thirty (30) days of the date of Notice, to repair and make good
or commence to repair and make good and proceed diligently with all
work in relation thereto, all breaches of covenant and defects for
which the Lessee may be liable under these presents, and of which
notice shall have been given by the Lessor to the Lessee, to the
satisfaction of the Lessor.
(22) TO INFORM THE LESSOR OF NOTICES RECEIVED
Within twenty-four (24) hours of the receipt of same to give full
particulars to the Lessor of any notice order proposal or other
communication served on or issued to the Lessee by any authority under
or by virtue of any statutory power or otherwise affecting or relating
to the leased premises or the use thereof and at the request of the
Lessor to make or join with the Lessor in making every such objection
or representation against the same that the Lessor shall deem
expedient.
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(23) FIXTURES
That prior to the determination of the term hereby created, all
partitions, fixtures and fittings installed by the Lessee shall be
taken down and removed by the Lessee, the Lessee making good all damage
occasioned to the leased premises and the building by such taking down
and removal.
(24) RE-LETTING
To permit the Lessor or its servants or agents during the three months
immediately preceding the determination of the said term and/or any
extension thereof (or sooner if rent hereby made payable or any part
thereof shall be in arrears and unpaid for upwards of one calendar
month) to exhibit the Leased Premises to any prospective tenant and
also to permit all persons having written authority of the Lessor for
that purpose access to view the leased premises at all reasonable hours
during such period.
(25) YIELD UP
To quietly yield up to the Lessor or its nominee the Leased Premises
including all Lessor's additions and improvements thereto at the
expiration or sooner determination of the said term or any extension
thereof in good and substantial condition as shall be consistent and in
accordance with the Lessee's covenants herein contained and with all
locks, fastenings and fixtures intact and in proper working order.
(26) DAMAGE INDEMNITY
To indemnify and hold the Lessor harmless from and against all claims,
demands, actions and/or proceedings (including costs on a full
indemnity basis) made or brought by any person against the Lessor and
any loss arising therefrom in respect of any damage or injury suffered
by any person or property in or upon the leased premises PROVIDED
HOWEVER that the Lessee shall not be obliged to indemnify the Lessor
against any loss which may arise from the negligence of the Lessor its
servants or agents.
(27) GENERAL INDEMNITY
To pay and make good to the Lessor all and every loss and damage
whatsoever incurred or sustained by the Lessor as a consequence of
every breach or non-observance of the Lessee's covenants herein
contained or caused by any act default or negligence of the
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Lessee or the servants agents licensees or invitees of the Lessee and
to indemnify the Lessor from and against all actions, claims,
liability, costs and expenses thereby arising.
(28) COSTS
To pay on demand a half of the Lessor's costs of and incidental to the
preparation stamping, perfecting and registration of this lease.
5 THE LESSOR HEREBY COVENANTS WITH THE LESSEE AS FOLLOWS:
(1) REPAIR & MAINTENANCE
Subject to and without prejudice to the Lessee's covenants
hereinbefore contained to manage and maintain the building as
a first class office building and to keep the external parts
and structural members of the building and the entrances and
other parts of the building forecourts, pathways and boundary
walls thereto the use of which the Lessee is entitled in
common with the other users of the building, in good and
proper repair AND ALSO to keep the common areas of the
building well and sufficiently cleaned and lighted PROVIDED
THAT there shall be no diminutions or abatement of the rents
or other compensation accruing to the I.essor for the failure
by the Lessor to perform any service or obligation or for
interruption or curtailment of service when such failure
interruption or curtailment of service shall be due to
accident or to alterations or repairs desirable or necessary
to be made, or to inability or difficulty in securing supplies
or labour, or to some other cause not amounting to negligence
on the part of the Lessor.
(2) INSURANCE
To insure and keep insured the Leased Premises and Xxxxxx's
fixtures therein against loss or damage by fire and such other
risks as the Lessor shall deem desirable or expedient in some
insurance office or with underwriters of repute.
(3) OUTGOINGS
Subject to the payment of the monthly maintenance charge by
the Lessee as aforesaid to pay and discharge all existing and
future water and sewerage rates, property taxes, electricity
charges, outgoings and assessments whatsoever imposed or
charged in respect of the building or any part thereof.
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(4) AIR-CONDITIONING
To keep the Leased Premises air conditioned on the usual
working days, that is, Mondays to Fridays inclusive but
excluding public holidays, between the hours of 7:30 a.m. and
7:00 p.m. (herein referred to as "the office hours") provided
that the Lessor shall not be liable for damage or compensation
in the event of any breakdown of the said air conditioning
service but will use its best endeavours to have the service
restored as quickly as is practicable.
(5) QUIET ENJOYMENT
That subject to the terms and conditions hereof and the Lessee
paying the rent hereby reserved and other sums payable
hereunder and observing and performing the several covenants
and stipulations herein on its part contained shall peaceably
hold and enjoy the Leased Premises throughout the said term
without any interruption by the Lessor or any person'
rightfully claiming through under or in trust for it.
6 PROVIDED ALWAYS AND IT IS HEREBY MUTUALLY AGREED AND
DECLARED as follows:
(1) OPTION TO RENEW
(a) Provided that there shall be no material breach of
the Lessee's obligations hereunder then existing, and
provided that the Lessee shall have given notice to
the Lessor in writing of such intention to renew at
least one hundred and eighty (180) days prior to the
expiration of the initial term hereof, the Lessee
shall have the option to renew this Lease for the
further period of time specified at Item 8 of
Schedule II from the expiration of the initial term
hereby created at a renewal rental and a revised
maintenance charge to be agreed on by the parties.
(b) In the event that the parties are unable to agree
before the commencement of the further term, on a
renewal rental and a revised maintenance charge then
this clause shall become null and void where upon the
Lessee shall be deemed to be holding over.
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(c) In the event that the parties are able to agree
within the time mentioned in subparagraph (b) above
on a renewal rental and a revised maintenance charge,
this Lease shall continue for such further period as
provided for herein, but otherwise upon the same
terms, covenants and conditions hereof except for
this provision regarding renewal.
(2) PARKING
The Lessee shall be entitled to the number of reserved covered
and uncovered car parking spaces in the building specified at
Item 9 of SCHEDULE II and agrees to pay to the Lessor on the
Commencement Date and thereafter on each anniversary date of
the lease annual rental for the same at a rate to be specified
each year by the Lessor in writing.
(3) OPENING HOURS
The building shall be opened for use by the occupants thereof
on the usual working days during the office hours
abovementioned. The building shall be opened to the Lessee on
Saturdays, Sundays, public holidays or on any day after office
hours PROVIDED THAT the Lessor shall not be required to keep
or have on duty any caretaker or other staff other than
security personnel on the building AND the Lessee and its
employees, agents and invitees shall use the Leased Premises
during such times at the Lessee's risk and the Lessee will
indemnify the Lessor against any claim for loss or damage
arising out of such use by the Lessee.
(4) XXXXXX UNABLE TO ENTER
If the Lessee shall be unable to enter into and use the Leased
Premises or any part thereof at the time above specified by or
as a result of any cause or reason beyond the direct control
of the Lessor, the Lessor shall not be liable in--damages to
the Lessee therefor nor shall this lease be determined.
(5) AIR-CONDITIONING
During any such period outside of the office hours the Lessor
shall (unless it is not practicable for them to do so, or is
likely to be harmful to the air conditioning equipment)
provide air conditioning for the Leased Premises, the Lessee
paying to
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the Lessor therefor such fair and reasonable charge per hour
as the Lessor may from time to time fix.
(6) THEFT
The Lessor shall not be liable for the theft or removal of any
property from the Leased Premises, howsoever caused, whether
by the negligence of any of its servants agents or employees
or otherwise.
(7) DAMAGE TO PREMISES
If the Leased Premises or any part thereof shall be destroyed
or damaged by fire, hurricane, earthquake, riot or civil
commotion or acts of God or the Queen's enemies so as to be
rendered wholly or partially unfit for occupation and use
then:
(a) The Lessor shall not be under any obligation to
re-build or reinstate the Leased Premises or such
part thereof as may have been damaged as aforesaid.
(b) Provided the policy or policies of insurance effected
by the Lessor shall not have been vitiated or payment
of the policy money refused in consequence of some
act or default of the Lessee or any person or persons
using or occupying the Leased Premises under its
authority then the said rents or a just proportion
thereof according to the nature and extent of such
damage shall be suspended until the Leased Premises
shall be restored to their former state and
condition.
(c) If the Lessor shall not have commenced to repair,
replace, rebuild, reinstate or restore the Leased
Premises within three (3) months of any destruction
or damage which renders the same unfit for occupation
or having so commenced shall not proceed diligently
therewith or if the Leased Premises shall not have
been rebuilt or reinstated within twelve calendar
months after such destruction or damage either party
may at any time thereafter determine the term hereby
created by one month's notice in writing to the other
party but such determination shall be without
prejudice to any claim by either party against the
other in respect of any antecedent breach of their
respective covenants and obligations hereunder.
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(8) REPAIR DAMAGE CAUSED BY XXXXXX
The Lessee shall, in addition to any other obligations binding
upon it hereunder, make good any damage to the building or the
Leased Premises arising from the occupation or use thereof by
the Lessee, its servants agents and others permitted upon the
Leased Premises any such repairs to be performed solely by
contractors nominated or approved of by the Lessor.
(9) RE-ENTRY
If the rents hereby reserved or any part thereof or any other
sum payable hereunder shall at any time be unpaid for FOURTEEN
(14) DAYS after becoming due and payable (whether legally and
formally demanded or not) or if there should be any breach or
non-observance or nonperformance of any of the terms,
covenants, conditions, agreements or stipulations herein
contained on the part of the Lessee and if such breach or
non-observance shall continue for the space of fifteen (15)
days after written notice of such breach, non-observance or
nonperformance by the Lessor to the Lessee or if the Lessee
shall compound with its creditors or make any arrangements
with its creditors for liquidation of its debts by composition
or otherwise or shall enter into liquidation whether
compulsory or voluntary (not being a voluntary liquidation
merely for the purpose of reconstruction) bankruptcy or if the
Lessee shall suffer any distress or process to be levied upon
its goods then and in one or more of the said cases it shall
be lawful for the Lessor or any person or persons by it duly
authorised in that behalf (and notwithstanding the waiver by
the Lessor of a previous breach non-observance or
non-performance or default and/or forfeitures) at any time
thereafter to re-enter into and upon and retake possession of
the leased premises or any part thereof in the name of the
whole and thereupon this lease shall immediately cease and
determine but without prejudice to any right of action or
remedy by the Lessor in respect of any antecedent breach or
non-observance or non-performance of the Lessee's covenants
and conditions herein contained.
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(10) NON FORFEITURE
That no neglect forebearance or omission on the part of the
Lessor to take advantage of or enforce any right or forfeiture
arising out of any breach or nonobservance or nonperformance
by the Lessee of any term covenant condition or stipulation
herein contained or implied, shall operate as or be deemed to
be a general waiver of such term covenant condition or
stipulation or the right to take advantage thereof or enforce
any right or forfeiture arising out of any breach or
nonobservance or non-performance thereof either original or
recurring.
(11) EASEMENT
The Lessee shall not by virtue of this lease or otherwise be
deemed to have acquired or become entitled to by length of
enjoyment prescription or any means whatsoever in respect of
the Leased Premises any right of light air or other right
privilege or easement and these presents are on the express
condition that the Lessee and the Leased Premises during the
term hereby granted are and shall be subject to all such
rights easements liberties and privileges for which the
building is or may for the time being be subject and subject
also to the right of the Lessor at any time hereunder to
create any further or vary any existing rights, easements,
liberties or privileges relating thereto.
(12) ACCIDENTS
The Lessor shall not be responsible to the Lessee or the
Lessee's licensees servants agents or other persons in the
leased premises or calling upon the Lessee for any accident
happening or injury suffered or damage to or loss of any
chattel or property sustained on the Leased Premises or in the
building.
(13) EXCLUSION OF XXXXXX'S LIABILITY
(a) The Lessor shall not be responsible or liable in any
manner whatsoever to the Lessee or anyone claiming
any right under the Lessee or anyone using the Leased
Premises or any part thereof by virtue of any right
or privilege granted by the Lessee, for any claim
made by such party in relation to the Leased Premises
or the use thereof unless such claim shall have
arisen out
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of the negligence or willful act of the Lessor, and
the Lessee agrees to hold the Lessor harmless from
all claims in respect of any and all such matters.
(b) Notwithstanding anything herein contained the Lessor
shall not be liable for:
(i) any act or omission of any other Lessee of
the Lessor or other Owner of any
part of the building;
(ii) any loss or damage caused by any temporary
interruption of any service, unless same
shall arise as a result of the negligence of
the Lessor, its servants or agents;
(iii) any loss or damage caused by any breakage of
or defect in any lift, appliance, tank, pipe
or other thing in or about the building,
unless same shall arise as a result of the
negligence of the Lessor, its servants or
agents;
(iv) any other loss or damage arising from any
cause outside the control of the Lessor.
(14) HOLDING OVER
Upon the determination of the term hereby created by effluxion
of time or otherwise, if the Lessee remains in possession of
the Leased Premises, then the Lessee shall be deemed to be
occupying the Leased Premises as Lessee at will from month to
month on the terms covenants and conditions of this Lease
where the same are applicable except the conditions relating
to monthly base rental and estimated monthly maintenance
charge. In the event that the Lessee remains in possession
then monthly rental shall be payable at the rate of twenty per
centum (20%) over the monthly sum payable immediately prior to
such determination, and monthly maintenance charges shall be
such amount as specified in written notice from the Lessor. In
the event of the Lessee remaining in possession as set out
above, the Lessee shall be liable for all the damage and loss
sustained by the Lessor as a result of such retention of
possession by the Lessee.
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(15) RULES & REGULATIONS
The Rules and Regulations listed in Schedule I annexed hereto
and all future Rules and Regulations (if any) made by the
Lessor for the management administration or proper and
efficient functioning of the building and for the comfort or
convenience of the lessees generally of which the Lessee shall
be notified, shall during the term hereby created or any
renewal thereof, be in all respects observed and performed by
the Lessee and shall be deemed to be incorporated into and
form part of this Lease.
(16) SET OFF
The Lessee shall not be entitled to offset any monies
whatsoever against the rent payable to the Lessor hereunder.
(17) CONDITION OF LEASED PREMISES
(a) The Lessor has not given an undertaking to the Lessee
or in any way warranted to the Lessee that it (the
Lessor) will remodel, alter or improve the Leased
Premises.
(b) The Lessee has inspected the Leased Premises and has
found them to be in good order and satisfactory
condition and the execution of the Lease by the
Lessee shall be conclusive evidence as against the
Lessee that the Leased Premises were in good order
and satisfactory condition when the Lessee took
possession.
(18) ARBITRATION
In the case of any dispute or questions whatsoever arising
between the parties hereto with respect to the cesser or
abatement of rent or other moneys payable as aforesaid and to
the construction or effect of this instrument or any clause or
thing herein contained or the rights duties or liabilities of
either party under this agreement or otherwise in connection
with the foregoing the matter in dispute shall be settled by
reference to a single arbitrator appointed by the President of
the Jamaican Bar Association provided that this clause shall
not apply or be deemed to apply to any dispute or matter
touching or with respect to the rent thereby
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reserved or other monies-payable hereunder save with regards
such cesser or abatement of rent or other moneys payable as
aforesaid.
(19) SERVICE OF NOTICE
Any notice under this lease shall be in writing and shall be
sufficiently and duly given and received if addressed and sent
by prepaid registered post or delivered to the Lessor at its
registered office or to the Lessee at its address hereinafter
stated or to such other address as may from time to time be
notified in writing by either party to the other for the
purpose. Any such notice shall be deemed to have been served
on the fourth day following the day of its posting. This
method is not exclusive and shall be in addition to any other
available procedure.
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SCHEDULE I
RULES & REGULATIONS
(i) The sidewalks, entrances, stairways and corridors shall not be
obstructed by the Lessee or used by it for any purpose other than that
of ingress to and egress from the Leased Premises.
(ii) Directory boards and interior signs and glass doors will be lettered by
the Lessor as approved by the Lessee, the cost of such lettering being
charged to the Lessee, and if any sign, advertisement or notice shall
be inscribed, appointed or affixed by the Lessee on or to any part of
the building whatever, except as aforesaid, the Lessor or its agents
shall be at liberty to enter the premises and pull down, remove and
destroy any such sign, advertisement or notice and the expense thereof
shall be payable by the Lessee. Except on the ground floor (for which
approval by the Lessor must nevertheless be obtained) no lettering or
sign will be permitted on or in the windows of the building.
(iii) The Lessee shall permit any personnel employed by or on behalf of the
Lessor to enter the Leased Premises for the purpose of cleaning the
same.
(iv) Furniture and effects shall not be taken into or removed from the
building except at such times and in such manner as may be previously
consented to by the Lessor. Nothing shall be moved over the floor or
stair of the Leased Premises or building so as to mark or otherwise
damage the same.
(v) No additional or substituted locks shall be installed on any door of
the building without the written consent of the Lessor except on such
interior doors as may have been installed by the Lessee.
(vi) No spikes, hooks, screws, or knobs shall be put into the walls or wood
work without the written consent of the Lessor. Any damage done by the
installation or removal of any such spikes, hooks, nails screws or
knobs shall be made good immediately by the Lessee at the Lessee's
expense.
(vii) The Lessee shall not install within the leased premises or the building
any equipment or appliance fueled by gas.
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(viii) The design, layout and finish of all internal works performed by the
Lessee shall be subject to the approval of the Lessor. The Lessee shall
in installing partition walls for the Leased Premises use materials
with a minimum two hour fire rating.
(ix) Complaints of all sorts and applications with regard to repairs and
other matters shall be made in writing to the Lessor or its agents.
(x) Letters or parcels whether registered or otherwise and telegrams or
keys received by any servants of the Lessor will be received solely at
the risk of the Lessee.
(xi) The Lessee shall not waste or permit to be wasted any water in the
Leased Premises.
(xii) No vendors or vending will be permitted in the building.
(xiii) No pets are allowed within the Leased Premises or the building.
(xiv) All decorations to the Leased Premises should be in keeping with the
decoration of the building in general.
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SCHEDULE II
ITEM 1: LESSEE
Name: CONVERGENT TECHNOLOGIES a company duly incorporated
under the laws of JAMAICA, Company No. 67,765 and
whose Tax Registration Number is 000-000-000.
Address: MiPhone Building
00 Xxxxxxxxx Xxxxxxxxx
Xxxxxxxx 0
Xxxxx Xxxxxx
XXXXXXXXX: XX. XXXXXXX XXXXXX/XXXXXXX XXXXXX
ITEM 2: (a) DESCRIPTION OF THE LEASED PREMISES
ALL THOSE Lots registered at Volume 1140 Folios
917-926
(b) AREA OF LEASED PREMISES
5,618.2 square feet on the 3rd floor of 00-00
Xxxxxxxxx Xxxxxxxxx, Xxxxxxxx 0 in the parish
of Saint Xxxxxx.
ITEM 3: THE TERM Five (5) years.
ITEM 4: COMMENCEMENT DATE
1ST DAY OF MAY, 2005.
ITEM 5: THE RENT
(a) Year 1 - US$5.50 per square foot per annum amounting to
the sum of US$30,900.10 per annum exclusive of
General Consumption Tax.
(b) The rent is payable in equal monthly installments of
US$2,575.00 (excluding General Consumption Tax) on the
first day of each and every month commencing on the 1ST
DAY OF JUNE, 2005.
(c) Commencing 1st May, 2006, the rental payable per square
foot per annum shall be increased each year over and
above the rental per square feet per annum for the
previous year by ten percent (10%) more than percentage
change in the CONSUMER PRICE INDEX (C.P.I.), or the
previous lease year PROVIDED THAT in no case shall the
increase in rental exceed twelve and a half percent (12
1/2 %) of the previous years' rental or fall below five
percent (5%) of the previous years/rental and same shall
be payable each year by equal monthly installments.
ITEM 6: BUDGETED MONTHLY MAINTENANCE CHARGE
May 2005 to December 2006 = Rate of US$11.59 per square foot per annum
amounting to US$65,114.94 per annum. Same shall be payable in equal
monthly installments of US$5,426.25 per month.
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ITEM 7: PERMITTED USE
Conducting the business of a Communications Services Provider.
ITEM 8: OPTION TO RENEW
(5 years option with 180 days notice).
ITEM 9: NUMBER OF PARKING SPACES
Seven (7)
ITEM 10: COSTS & SERVICES COVERED BY MAINTENANCE CHARGE
(a) The costs and expenses whatsoever incurred by the Lessor in
and about the discharge of its obligations including but not
limited to the items set out in Clause 5 and the general
maintenance and management of the building.
(b) WATER & SEWERAGE COSTS
The water and sewerage costs associated with the supply of
these services to all parts of the building for all purposes
in connection with the use and occupation thereof.
(c) ELECTRICITY
The costs of supplying electricity to all parts of the
building for all purposes in connection with the use and
occupation thereof.
(d) TAXES ETC.
All existing and future property taxes, rates and outgoings
and assessments whatsoever imposed or charged in respect of
the said land, the building or any part thereof.
(e) INSURANCE
The cost of insuring and keeping insured the building at
projected replacement cost and all the said appurtenances
thereof in pursuance of the Lessor's covenants herein
contained, and in addition, the cost of insurance against
further or other risks that the Lessor may deem desirable or
expedient.
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(f) CLEANING REPAIRS-ETC.
The services related to the cleaning, painting, repairing and
maintaining of any and all parts of the interior and exterior
of the building including the landscaped areas and all
electrical and mechanical vehicles, plant and equipment,
chattels, fixtures and fittings in use or for the common
benefit of all tenants and occupiers of the building including
the costs of providing all necessary replacements thereof from
time to time.
(g) SECURITY
The cost of providing security services for the leased
premises and the building generally.
(h) SERVICES, AMENITIES ETC,
Charges and expenses for the safe, efficient and orderly use,
maintenance and upkeep of all parts of the building and the
amenities, equipment, services facilities and systems therein
including the Elevators, Standby Generator and
air-conditioning systems.
(i) The Lessor shall be entitled to employ agents or contractors
and such other persons as the Lessor may from time to time
consider necessary or convenient for the performance and
provision of all or any of such service and systems.
(j) DEPRECIATION
Annual depreciation on the undermentioned items calculated on
historical cost on a straight-line basis to reduce their value
to nil over the period of years specified below computed from
the date of acquisition thereof:
Carpeting - 7 years Elevators - 20 years
Air-conditioning - 20 years Standby Generator - 20 years
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IN WITNESS WHEREOF the parties hereto have executed this Lease the day
and year first hereinbefore written.
THE CORPORATE SEAL OF )
OCEANIC DIGITAL )
JAMAICA LIMITED was hereunto )
affixed and this lease signed by )
XXXXX XXXXXXXXX ) ______________________________
in the presence of:
----------------------------
ATTORNEY-AT-LAW
THE COMMON SEAL OF )
CONVERGENT TECHNOLOGIES )
LIMITED was hereunto )
affixed and this lease signed by ) ______________________________
XXXXXXX XXXXXX )
in the presence of:
-------------------------------------
ATTORNEY-AT-LAW
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