EXHIBIT 4b.1
LEASE AGREEMENT BETWEEN RONAN O'CAOIMH, XXXXXXXX X'XXXXXXX AND XXX
XXXXX WITH TRINITY BIOTECH PLC IN RESPECT OF WAREHOUSE PREMISES IN
XXXX, CO WICKLOW, IRELAND.
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THIS LEASE made the 18 day of October 2004
BETWEEN
(a) LANDLORD:
RONAN O'CAOIMH of Glencarraig, Delgany, Co. Wicklow
XXXXXXXX X'XXXXXXX of 00 Xxxxxxxx Xxxx, Xxxxxxxxx, Xx. Xxxxxx
XXX XXXXX of Xxxxxxx Lodge, Kilcroney, Co. Wicklow
(b) TENANT:
TRINITY BIOTECH PLC
having its Registered Office at XXX Business Park, Bray, County Wicklow
WITNESSETH as follows:-
1. DEFINITIONS
In this Lease, unless the context other requires,
1.1 "Adjoining Property" means any land and buildings adjoining or
neighbouring the Demised Premises;
1.2 "Building Control Act" means the Building Control Act, 1990
and any statutory extension, modification, amendment or
re-enactment of such Act for the time being in force;
1.3 "Conduits" means all sewers, drains, soakaways, pipes,
gullies, gutters, ducts, mains, watercourses, channels,
subways, wires, cables, shafts, flues and other transmission
or conducting media and installations (including all fixings,
covers, cowls, louvres and other ancillary apparatus) of
whatsoever nature or kind or any of them;
1.4 "Decorate" means paint (with at least two coats of good
quality paint), polish, repaper or otherwise treat as
appropriate all surfaces by stripping off, stopping, priming
or otherwise, as necessary, washing down washable surfaces,
treatment with suitable preservative and restoration, pointing
and making good stonework, brickwork, stucco, concrete and
other surfaces;
1.5 "Demised Premises" means, save as provided in Clause 5.3.7,
the premises demised by this Lease and more particularly
described in the First Schedule;
1.6 "Initial Rent" means IR(pound)150,0000 ((euro)190,460.71) per
annum;
1.7 "Insured Risk" means, subject always to such insurance as may
ordinarily and reasonably be available to the Landlord and to
such exclusions, excesses and limitations as may be imposed by
the Landlord's Insurers for the time being in respect of any
or all of the following risks;
fire (including subterranean fire), xxxxx, xxxxxxx, flood,
earthquake, lightning, explosion, impact by any road vehicle,
aircraft and other aerial devices and articles dropped
therefrom, riot, civil commotion and malicious damage,
bursting or overflowing of water tanks, apparatus or pipes and
such other risks as the Landlord may in its absolute
discretion from time to time determine;
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1.8 "Landlord" means the party or parties named as "Landlord" at
the commencement of this Lease and includes the person for the
time being entitled to the reversion immediately expectant on
the determination of the Term;
1.9 "this Lease" includes the Schedules and any document which is
made supplemental hereto or which is entered into pursuant to
or in accordance with the terms hereof;
1.10 "Outgoings" means all rates, taxes and charges (including
emergency service charges) of any description (whether or not
of a capital or non-recurring nature) which may at any time
during the Term be payable in respect of the Demised Premises
and Utilities enjoyed in connection therewith INCLUDING any
insurance excesses or other sums not recoverable by the
Landlord (unless due to its neglect or default) but EXCLUDING
any tax payable by the Landlord upon the rents herein reserved
or occasioned by any disposition of or dealing with the
reversion of this Lease;
1.11 "Permitted User" means manufacturing/office use;
1.12 "the Perpetuity Period" means the period of 25 years from the
date of this Lease;
1.13 "Plan" means the plan (if any) annexed to this Lease;
1.14 "Planning Acts" means the Planning and Development Xxx 0000
and any statutory extension, modification, amendment or
re-enactment of such Act for the time being in force;
1.15 "Plant" means any lifts, lift machinery, central heating and
air conditioning systems, sprinkler systems, boilers and other
electrical and mechanical machinery, equipment and apparatus
of whatsoever nature or kind and wherever installed in the
Demised Premises;
1.16 "Prescribed Rate" means the rate per centum per month which
exceeds by one half per centum per month the monthly rate of
interest for the time being chargeable under Section 1080 of
the Taxes Consolidation Act 1997 (or other such monthly rate
of interest as may from time to time be chargeable upon
arrears of income tax) or, as the Landlord may from time to
time elect the rate of 15 per cent per annum;
1.17 "Quarterly Xxxx Days" means the first day of January, first
day of April, first day of July and first day of October in
every year of the term;
1.18 "Rent Commencement Date" means the 1st day of July 2000;
1.19 "Superior Lease"means Indenture of Lease dated 2nd day of
February 2000 between the XXX Ireland of the one part and the
Landlord of the other part in respect of the Demised Premises;
1.20 "Tenant" means the party or parties named as "Tenant" at the
commencement of this Lease and includes the person entitled
for the time being to the Tenant's interest created by this
Lease;
1.21 "Term" means 20 years;
1.22 "Term Commencement Date" means the 1st day of July 2000;
1.23 "Utilities" means water, soil, steam, air, gas, electricity,
radio, television, telegraphic, telephonic and other
communications and other services of whatsoever nature;
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1.24 "the 1860 Act" and the "1881 Act" mean respectively the
Landlord and Tenant Law Amendment Act, Ireland, 1860 and the
Conveyancing Act, 1881.
2. INTERPRETATION
2.1 Where two or more persons are included in the expression "the
Landlord" or "the Tenant", such expressions include all or
either or any of such persons and the covenants which are
expressed to be made by the Landlord or the Tenant shall be
deemed to be made by or with such persons jointly and
severally;
2.2 Unless the context otherwise requires:-
2.2.1 words importing the person include any unincorporated
association or corporate body and vice versa;
2.2.2 any reference to the masculine gender includes
reference to the feminine gender and any reference to
the neuter gender includes the masculine and feminine
genders;
2.2.3 any reference to the singular includes reference to
the plural.
2.3 References to any right of the Landlord to have access to or
entry upon the Demised Premises shall be construed as
extending to all persons authorised by the Landlord, including
agents, professional advisers, prospective purchasers of any
interest of the Landlord in the Demised Premises or in the
Adjoining Property, contractors, workmen and others.
2.4 Any reference to a statute (whether specifically named or not)
or to any sections or sub-sections therein includes any
amendments or re-enactments thereof for the time being in
force and all statutory instruments, orders, notices,
regulations, directions, bye-laws, certificates, permissions
and plans for the time being made, issued or given thereunder
or deriving validity therefrom.
2.5 Headings are inserted for convenience only and do not affect
the construction or interpretation of this Lease.
2.6 Any reference to a clause, sub-clause or schedule means a
clause, sub-clause or schedule of this Lease.
2.7 Wherever in this Lease either party is granted a future
interest in property there shall be deemed to be included in
every respect of every such grant a provision requiring that
future interest to vest within the Perpetuity Period.
2.8 If any term or provision in this lease is held to be illegal
or unenforceable in whole or in part such term shall be deemed
not to form part of this Lease but the enforceability of the
remainder of the Lease is not affected.
3. DEMISE AND RENTS
THE Landlord in consideration of the rents herein reserved (including
the increases thereof which may arise as hereinafter provided) and the
covenants on the part of the Tenant hereinafter contained HEREBY
DEMISES unto the Tenant the Demised Premises TOGETHER WITH ancillary
rights and easements specified in the Second Schedule but EXCEPTING AND
RESERVING the rights and easements specified in the Third Schedule TO
HOLD the Demised Premises unto the Tenant from and including the Term
Commencement Date for the Term SUBJECT TO all rights, easements,
privileges, covenants, restrictions and stipulations of whatsoever
nature affecting the Demised Premises YIELDING AND PAYING unto the
Landlord during the Term;
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3.1 Yearly and proportionately for any fraction of a year the
Initial Rent and, from and including each Review Date (as
defined in the Fourth Schedule), such yearly rent as becomes
payable under the Fourth Schedule, and in every case the same
is to be paid in the manner notified from time to time by the
Landlord by equal quarterly payments in advance on the
Quarterly Xxxx Days;
3.2 All sums (including the cost of periodic valuations for
insurance purposes) which the Landlord may from time to time
pay for insuring the Demised Premises against the Insured
Risks and other matters referred to in clause 5.3, all such
sums to be paid on demand;
3.3 Any other sum recoverable by the Landlord as costs or expenses
under this Lease, the same to be paid on demand.
4. TENANT'S COVENANTS
The Tenant throughout the term HEREBY COVENANTS with the Landlord as
follows:-
4.1 RENTS
To pay the rents in the manner specified in Clause 3 (save for
the first payments which shall be made on the execution of
this Lease) and without any deduction, set-off or counterclaim
whatsoever.
4.2 INTEREST ON ARREARS
Without prejudice to any other right, remedy or power herein
contained or otherwise available to the Landlord, if any of
the rents (whether formally demanded or not) or other sums
specified in Clause 3 remain unpaid for more than twenty eight
days after the date when payment was due, to pay interest
thereon at the Prescribed Rate from and including the date on
which payment was due to the date of payment to the Landlord
(both before and after any judgement).
4.3 OUTGOINGS
To pay and indemnify the Landlord against all Outgoings.
4.4 SERVICE CHARGE
To reimburse to the Landlord the service charge that is
assessed on the Landlord for the demised premises by the XXX.
4.5 REPAIRS
4.5.1 To repair the Demised Premises and keep them in good
repair, and, as often as may be necessary, to
rebuild, reinstate or replace the Demised Premises;
4.5.2 To maintain, repair and keep in good working order
and condition and, as often as may be necessary, to
renew and replace by articles of a similar kind and
quality all Plant and Conduits in, upon, over or
under the Demised Premises and to repair any damage
caused to the Demised Premises by the breakdown,
misuse of, or failure to repair such Plant and
Conduits and to indemnify the Landlord against any
xxxx or liability resulting therefrom;
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Provided that the Tenant's liability under clauses 4.5.1 and
4.5.2 does not extend to damage in respect of which the
Landlord is indemnified under a policy of insurance effected
under clause 5.3.1.1 or to damage in respect of which the
Landlord has no such entitlement through his own default and,
if the damage caused by any of the Insured Risks would
otherwise give rise to a right to surrender this Lease under
the provisions of section 40 of the 1860 Act or otherwise, the
Tenant hereby absolutely waives and abandons such right.
4.6 DECORATION
To decorate in good and workmanlike manner, using good quality
materials so often as may be reasonably be required ( and in
any event in the last six months of the Term):-
4.6.1 all parts of the Demised Premises requiring
decoration.
4.7 CLEANING AND MAINTENANCE
4.7.1 To keep all parts of the Demised Premises clean and
tidy;
4.7.2 To keep those parts which are not built upon properly
surfaced and free from weeds.
4.7.3 To keep all landscaped areas properly cultivated and
maintained, preserving any trees and shrubs in those
areas;
4.7.4 To clean properly at least once in every quarter all
windows and window frames and all other glass forming
part of the Demised Premises.
4.8 YIELDING UP
At the expiration or sooner determination of the Term to yield
up the Demised Premises having:-
4.8.1 complied with all the Tenant's covenants contained in
this Lease; and
4.8.2 removed any moulding, sign, writing or painting of
the name or business of the Tenant or occupiers, and
4.8.3 if so required by the Landlord, but not otherwise,
removed all alterations or additions made to the
Demised Premises by the Tenant, together with any
Tenant's fixtures, fittings, furniture and effects,
and restored the Demised Premises to their original
prevailing condition.
4.9 TENANT'S FIXTURES AND EFFECTS
4.9.1 The Tenant irrevocably appoints the Landlord to be
the Tenant's agent to store or dispose of (subject to
any conditions which the Landlord thinks fit) any
fixtures, fittings, furniture and effects left by the
Tenant on the Demised Premises for more than seven
days after the expiry or sooner determination of the
Term;
4.9.2 In acting under Clause 4.9.1 the Landlord is not
liable to the Tenant save having to account for the
net proceeds of sale less the cost of storage (if
any) and any other expenses reasonably incurred by
the Landlord.
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4.10 RIGHTS OF ENTRY BY THE LANDLORD
To permit the Landlord and all necessary materials and
appliances at all reasonable times upon able not less than 48
hours prior notice (except in cases of emergency) to enter and
remain upon the Demised Premises for any of the following
purposes:-
4.10.1 to view and examine the state and condition of the
Demised Premises and to take schedules or inventories
of the Landlord's fixtures and fittings;
4.10.2 to exercise any of the rights, excepted and reserved
by, and to carry out any obligations arising under,
this Lease.
4.11 COMPLIANCE WITH NOTICES
Upon written notices being given by the Landlord to the Tenant
of any breach of covenant:-
4.11.1 to make good and remedy within sixty days of such
notices, or sooner if required in the notice, the
breach to the reasonable satisfaction of the
Landlord;
4.11.2 if the Tenant fails within twenty-one days of such
notice or as soon as reasonably possible in the case
of an emergency, to commence and then diligently and
expeditiously to continue to comply with such notice,
to permit the Landlord to enter the Demised Premises
and carry out all or any of the works or other steps
necessary for compliance with the notice;
4.11.3 to pay all costs and expenses thereby incurred to the
Landlord on demand.
4.12 OPERATIONAL OF THE DEMISED PREMISES
Not to engage in any activity in or on the Demised Premises
which may result in:-
4.12.1 a material increase in the risk of one or more of the
Insured Risks happening or of contamination,
pollution, or overloading in, on or to the Demised
Premises;
4.12.2 the creation of any nuisance, annoyance or
disturbance affecting the enjoyment of the Adjoining
Property, or the value or character of the Demised
Premises;
4.12.3 the obstruction of or interference with the ancillary
rights specified in the Second Schedule or with the
rights of owners and occupiers or appliances
installed in the Demised Premises;
4.12.4 the interference with or malfunctioning of any fire
and safety equipment or appliances installed in the
Demised Premises;
4.12.5 the Landlord incurring liability or expense under any
statutory provision;
4.12.6 not to erect, place or display on the exterior or on
the windows of the Demised Premises any sign or other
item whatsoever without obtaining the prior written
consent of the Landlord, which consent shall not be
unreasonably withheld.
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4.13 USER
4.13.1 Not without the prior written consent of the Landlord
(which consent shall not be unreasonably withheld or
delayed) to use the Demised Premises except for the
Permitted User nor to make any application for
planning permission or a fire safety certificate in
regard to any change of user or other development
relating to the Demised Premises without first giving
notice in writing to the Landlord of the intention to
make such an application;
4.13.2 to provide such caretaking or security arrangements
as the Landlord or the insurers of the Demised
Premises shall reasonably require in order to protect
the Demised Premises from vandalism, theft or
unlawful occupation;
4.13.3 to provide the Landlord with the name, address and
home telephone number of at least two authorised key
holders for the time being of the Demised Premises
and to notify the Landlord of any changes in the
persons so authorised as key holders of the Demised
Premises;
4.13.4 Not to use the Demised Premises for any public or
political meeting, public exhibition or public
entertainment, show or spectacle of any kind, nor for
any dangerous, noisy, noxious or offensive trade,
business or occupation whatsoever, nor for any
illegal or immoral purpose, nor for residential or
sleeping purposes;
4.13.5 Not to use the Demised Premises or any part thereof
for gambling, betting, gaming or wagering, or as a
betting office, or as a club, or for the sale of
beer, wine and spirits, nor to hold any auction on
the Demised Premises.
4.14 ALTERATIONS
4.14.1 Not to erect any new building or structure or to
engage in any works on, or to make any addition or
alterations to the Demised Premises of such a kind
that the Demised Premises lose their original
identity;
4.14.2 Not to make any other addition or alterations to the
Demised Premises without the prior written consent of
the Landlord (which consent shall not be unreasonably
withheld or delayed);
4.14.3 The Landlord may, as a condition of giving consent
under the immediately preceding sub-clause, require
the Tenant to enter into reasonable covenants or
undertakings as to the carrying out and insurance of
the additions or alterations to the Demised Premises
and as to their reinstatement to their original state
at the expiration or sooner determination of the
Term;
4.14.4 In respect of such additions or alterations, to
comply in all respects with the provisions, as
appropriate, of the Planning Acts and the Building
Control Act and to carry out any related works in a
good and workmanlike manner to the satisfaction of
the Landlord.
4.15 ALIENATION
4.15.1 Not to assign, sublet, part with or share the
possession of the entirety of the Demised Premises
without the prior written consent of the Landlord
(which consent shall not be unreasonably withheld or
delayed);
4.15.2 Not under any circumstances to assign, sub-let, part
with or share the possession of or otherwise alienate
a part of the Demised Premises;
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4.15.3 The Tenant in seeking consent to any proposed
alienation shall apply in writing to the Landlord and
shall provide all information concerning the
alienation as the Landlord may reasonably require;
4.15.4 In granting consent to any such proposed alienation
the Landlord may impose such conditions as are
reasonable in all the circumstances.
4.15.5 Notwithstanding the provisions of this Clause 4.15 it
is hereby agreed that for so long as Trinity Biotech
plc is the Tenant is shall be entitled to share
occupation of the Demised Premises with any other
company or companies which are members of the same
group of companies.
4.16 REGISTRATION OF DISPOSITIONS
To furnish to the Landlord or its solicitors within twenty-one
days of the alienation a certified copy of the deed or other
instrument evidencing or effecting any alienation of or
relating to the Demised Premises.
4.17 LANDLORD'S EXPENSES
To pay and indemnify the Landlord against all reasonable and
proper costs and expenses properly incurred by the Landlord in
relation to:
4.17.1 the preparation and service of any notice and of any
proceedings under the 1860 Act or the 1881Act;
4.17.2 the preparation and service of any notice and
schedule relation to disrepair;
4.17.3 procuring the remedying of any breach of covenant by
the Tenant;
4.17.4 any application for consent required under the terms
of this Lease (whether such consent is granted or
not);
4.17.5 any other action taken at the request of the Tenant.
4.18 STATUTORY REQUIREMENTS
4.18.1 At the Tenant's own expense, to comply in all
respects in relation to the Demised Premises with-
4.18.1.1 all obligations and requirements arising
from or under any statutory provision or
imposed under powers conferred on any
authority or court of competent
jurisdiction;
4.18.1.2 any reasonable and proper demand by the
Landlord for production of plans, documents
and other evidence which the Landlord may
require in order to satisfy itself that the
provisions of this clause have been or will
be complied with.
4.18.2 Upon receipt of any notice or order relating to the
Demised Premises or the occupier thereof or of any
proposal for the same served or given under the
Planning Acts, the Building Control Act or any other
statutory provisions forthwith-
4.18.2.1 to furnish the Landlord with a true copy
thereof and any further particulars required
by the Landlord.
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4.18.2.2 to take all necessary steps to comply with
the notice or order;
4.18.2.3 At the written request and cost of the
Landlord to make or join with the Landlord
in making such objection or representation
against or in respect of any such notice,
order or proposal as the Landlord may
reasonably require.
4.19 ENCROACHMENTS AND EASEMENTS
4.19.1 Not to stop up, darken or obstruct any window, rights
of light or rights of way belonging to the Demised
Premises;
4.19.2 Not to permit any new easements, encroachment, or any
other third party rights to be made or enjoyed over
or in respect of the Demised Premises or to
acknowledge their existence or to grant any such
rights;
4.19.3 As soon as the Tenant is aware of any attempt to
claim or exercise such third party rights, forthwith
to give written notice thereof to the Landlord and,
at the request of the Landlord, to take such steps as
may be reasonably required by the Landlord to prevent
their acquisition or otherwise deal with them.
4.20 RELETTING AND PLANNING APPLICATION NOTICES
To permit the Landlord at all reasonable times during the last
six months of the term to enter upon the Demised Premises and
affix and retain without interference upon any suitable parts
of the Demised Premises (but not so as materially to affect
the access of light and air to the Demised Premises) notices
of reletting the same and, as appropriate, any site notice
relating to a planning application and to permit all persons
with the written authority of the Landlord or its agent to
view the Demised Premises at all reasonable hours in the
daytime, upon prior notice having been given.
4.21 INDEMNITY
4.21.1 To keep the Landlord fully indemnified from and
against all actions, proceedings, claims, demands,
losses, costs, expenses, damages and liability
arising directly or indirectly from:-
4.21.1.1 breach by the Tenant of any of the
provisions of this Lease;
4.21.1.2 the use of or works carried out on or to the
Demised Premises during the term.
4.21.1.3 any act, neglect or default by the Tenant or
any person on the Demised Premises with its
actual or implied authority.
4.21.2 To effect and keep in force such public liability,
employer's liability and other policies of insurance
(to the extent that such insurance cover is
available) as may be necessary to cover the Tenant
against any claim arising under the preceding
sub-clause and to extend such policy or policies so
that the Landlord is indemnified by the Insurers in
the same manner as the Tenant.
4.21.3 Whenever required to do so by the Landlord, to
produce to the Landlord the said policy or policies
together with satisfactory evidence that the same
is/are valid and subsisting and that all premiums due
thereon have been paid.
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4.22 STAMP DUTY AND VALUE ADDED TAX
To pay to the Landlord
4.22.1 any stamp duty payable on this Lease and its
counterpart together with registration fees;
4.22.2 any Value Added Tax arising from the grant of this
Lease or on the rents reserved by it.
4.23 INSURANCE
4.23.1 Not to do or omit to do anything which might cause
any policy of insurance relating to the Demised
Premises or any Adjoining Property owned by the
Landlord to become void or voidable wholly or in part
nor (unless the Tenant has previously notified the
Landlord and agreed to pay the increased premium) to
do anything whereby any abnormal or loaded premium
becomes payable.
4.23.2 Subject to the Landlord furnishing the Tenant with a
copy of any policy of insurance effected under clause
5.3, to comply, at the Tenant's own expense, with all
the requirements under that policy and the
recommendations of the insurers relating to the
Demised Premises.
4.23.2.1 To pay within seven days of their becoming
payable all premiums relating to any such
insurance, and whenever reasonably required
by the Landlord, to produce the policy of
insurance and the receipt for the current
year's premium.
5. LANDLORD COVENANTS
The Landlord HEREBY COVENANTS with the Tenant as follows:-
5.1 QUIET ENJOYMENT
To permit the Tenant, provided it pays the rent reserved by
and otherwise complies with the provisions of this Lease,
peaceably to hold and enjoy the Demised Premises during the
Term without any interruption by the Landlord or any person
lawfully claiming through, under or in trust for it.
5.2 EXERCISE OF RIGHTS
In exercising any of the Landlord's rights of entry or other
rights in relation to the Demised Premises:-
5.2.1 to take all necessary steps to ensure that as little
damage is done to the Demised Premises and as little
inconvenience is caused to their occupiers as is
reasonably practicable;
5.2.2 to make good without delay any damage which may be
caused by such exercise.
5.3 INSURANCE
5.3.1 Subject to reimbursement by the Tenant of the
premiums payable by the Landlord, to insure and keep
insured with an insurer of repute located in Ireland
in the name of the Landlord:-
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5.3.1.1 the Demised Premises against loss or damage
by the Insured Risks in the full
reinstatement costs thereof (to be
determined from time to time by the Landlord
or his professional adviser) including:-
Architects, Surveyors, Consultants and other
professional fees (including Value Added Tax
thereon);
The costs of shoring up, demolishing, site
clearing and similar expense;
All stamp duty and other taxes or duties
exigible on any building or like contract as
may be entered into and all incidental
expenses (including planning and building
regulation fees) relative to the
reconstruction, reinstatement or repair of
the Demised Premises;
Such provision for inflation as the Landlord
in its reasonable discretion shall deem
appropriate;
5.3.1.2 the loss of rent from time to time payable,
or reasonably estimated to be payable, under
this Lease (taking account of any review of
the rent which may become due under this
Lease) following loss or damage to the
Demised Premises by the Insured Risks, for
three years or such longer period as the
Landlord may, from time to time, reasonably
deem to be necessary, having regard to the
likely period required for rebuilding and
for obtaining planning permission and any
other consents, certificates and approvals
in connection with the reinstatement of the
Demised Premises;
5.3.1.3 the property owner's public, employer's and
other liability of the Landlord arising out
of or in relation to the Demised Premises;
5.3.1.4 such other insurance as the Landlord may, in
its reasonable discretion, from time to time
deem necessary to effect.
5.3.2 At the request of the Tenant, the Landlord shall
produce to the Tenant a copy extract duly certified
by the Insurance Company or the Landlord's Insurance
Broker of such insurance policy or policies and a
copy of the receipt for the last premium or (at the
Landlord's option) reasonable evidence from the
Insurers of the terms of the insurance policy or
policies and the fact that it is or they are
subsisting and in effect.
5.3.3 If the Demised Premises are destroyed or damaged by
any of the Insured Risks then:
5.3.3.1 unless payment of any of the insurance
monies are refused by reason of any act or
default of the Tenant, any under-tenant or
any person under its or their control; and
5.3.3.2 subject to the Landlord being able to obtain
any necessary planning permission and other
necessary licences, certificates, approvals
and consents (which the Landlord shall use
its reasonable endeavours to obtain); and
5.3.3.3 subject to the necessary labour and
materials being and remaining available
(which the Landlord shall use its reasonable
endeavours to obtain as soon as
practicable); and
5.3.3.4 subject to exercise of the right to
terminate the lease under this clause: the
Landlord shall as soon as possible lay out
the proceeds of insurance effect under
clause 5.3.1.1 rebuilding and reinstating
the Demised Premises as necessary to make
them substantially the same as they were
prior to the destruction or damage (but not
so as to provide accommodation identical in
layout and manner or method of construction
if it would not be reasonably practical to
do so).
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5.3.4 If the Landlord is prevented (for any reason other
than its act or default) from compliance with the
previous provisions of this clause the following
provisions apply:
5.3.4.1 the Landlord is relieved of its obligations
and is solely entitled to all insurance
monies;
5.3.4.2 if the prevention continues for three years
and the Lease is not otherwise terminated,
the Landlord or the Tenant may at any time
after expiry of that period by written
notice given to the other party determine
this Lease, but without prejudice to any
claim by either party against the other in
respect of any antecedent breach of its
terms;
5.3.5 If the destruction or damage to the Demised Premises
renders them unfit for use and occupation and
provided the insurance has not been vitiated nor
payment of any insurance monies refused by reason of
any act or default of the Tenant, any under tenant or
any person under its or their control, the rent
payable under clauses 3.1 of this Lease shall be
suspended in accordance with the following
provisions:-
5.3.5.1 the rent suspended shall be the whole rent
or such proportion as is fair according to
the nature and extent of the damage to the
Demised Premises;
5.3.5.2 the suspension shall last until either the
Demised Premises are again rendered fit for
use and occupation or the expiration of
three years (or such longer period as the
Landlord may have insured against) from the
date of destruction or damage, whichever is
the earlier;
5.3.5.3 where the destruction or damage occurs
during a quarter in respect of which rent
has been paid in advance, the Landlord shall
refund to the Tenant the proportion of that
rent (apportioned on a daily basis) which is
attributable to the period following the
date of destruction of that damage;
5.3.5.4 any dispute regarding suspension of rent
shall be determined by a single arbitrator
to be appointed, in default of agreement,
upon the application of either party, by or
on behalf of the President or acting
President for the time being of the Society
of Chartered Surveyors or in accordance with
the provisions of the Arbitration Act,
1954-1998.
5.3.6 As and when requested from time to time by the
Tenant, the Landlord shall use its best endeavours;
5.3.6.1 to obtain from the Landlord's insurers a
waiver of its subrogation rights (if any)
against the Tenant in respect of the Demised
Premises so long as such a waiver is
available in the insurance market from a
reputable insurers located in Ireland and
any costs reasonably incurred thereby are
discharged by the tenant;
5.3.6.2 to ensure that the insurance policy or
policies in respect of the Insured Risks
contain a provision that the insurance is
not invalidated by any change of occupancy
or increase or risk taking place in or on
the Demised Premises without the knowledge
of the Landlord provided that the Landlord
shall immediately upon the same coming to
its knowledge give notice to the insurers
and the Tenant shall pay any additional
premiums as may be requested from the date
of such increase of risk.
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5.3.7 For the purposes of this clause "Demised Premises" do
not include (unless otherwise specified by the
Landlord) any additions, alterations or improvements
carried out or being carried out by the Tenant.
5.4 The Landlord covenants and agrees that it shall perform and
observe all of the Tenant's covenants and obligations under
the Superior Lease.
6. PROVISOS
PROVIDED ALWAYS as follows:-
6.1 FORFEITURE
Without prejudice to any other right, remedy or power herein
contained or otherwise available to the Landlord if:
6.1.1 the whole or any part of the rents or other sums
reserved by this Lease is unpaid for twenty eight
days after becoming payable (whether formally
demanded or not); or
6.1.2 there is a material breach of any of the Tenant's
covenants; or
6.1.3 if the Tenant has a winding-up petition presented
against it or passes a winding-up resolution (other
than in connection with a members' voluntary
winding-up for the purposes of amalgamation or
reconstruction which has the prior written approval
of the Landlord) or resolves to present its own
winding-up petition or is wound-up (whether in
Ireland or elsewhere) or a Receiver and Manager is
appointed in respect of the Demised Premises or of
the Tenant; or
6.1.4 if the Tenant has a bankruptcy petition presented
against him or is adjudged bankrupt (whether in
Ireland or elsewhere) or suffers any distress or
execution to be levied on the Demised Premises or
enters into composition with his creditors or has a
receiving order made against him;
THEN, and in any such case, the Landlord may at any
time thereafter re-enter the Demised Premises and
thereupon the Term absolutely ceases and determines,
but without prejudice to any rights or remedies which
may then have accrued to the Landlord against the
Tenant in respect of any antecedent breach of any of
the covenants or conditions contained in this Lease.
6.2 NO IMPLIED EASEMENTS
Nothing in this Lease shall impliedly confer upon or grant to
the Tenant any easement, right or privilege other than those
expressly granted (if any) by it.
6.3 EXCLUSION OF WARRANTY AS TO USER
Nothing contained in this Lease or in any consent granted or
approval given by the Landlord under it implies or warrants
that the Demised Premises may be used under the Planning Acts
or the Building Control Act for the purpose herein authorised
or any purpose subsequently authorised and the Tenant hereby
acknowledges that the Landlord has not given or made at any
time any representation or warranty that any such use is or
will be or will remain a permitted use under those Acts.
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6.4 REPRESENTATION
The Tenant acknowledges that this Lease has not been entered
into in reliance wholly or partly on any statement or
representation made by or on behalf of the Landlord, except
any such statement or representation that is expressly set out
in this Lease.
6.5 COVENANTS RELATING TO ADJOINING PROPERTY
Nothing contained in or implied by this Lease shall give to
the Tenant the benefit of or the right to enforce or to
prevent the release or modification of any covenant, agreement
or condition entered into by any tenant of the Landlord in
respect of the Adjoining Property.
6.6 EFFECT OF WAIVER
Each of the Tenant's covenants shall remain in full force both
at law and in equity notwithstanding that the Landlord may
have appeared to have waived or released temporarily any such
covenant, or waived or released temporarily or permanently,
revocably or irrevocably a similar covenant affecting other
property belonging to the Landlord.
6.7 APPLICABLE LAW
This Lease and all relationships created thereby shall in all
respects be governed by and construed and interpreted in
accordance with Irish Law.
6.8 NOTICES
6.8.1 Any demand or notice required to be made, given to,
or served on the Tenant under this Lease is duly and
validly made, given or severed if addressed to the
Tenant (or, if the Tenant comprises more than one
person, then to any of them) and delivered
personally, or sent by prepaid registered or recorded
delivery mail, or sent by telex or telegraphic
facsimile transmission addressed (in the case of a
company) to its registered office or (whether a
company or individual) to its last known address, or
to the Demised Premises;
6.8.2 Any notice required to be given or served on the
Landlord is duly and validly given or served if sent
by pre-paid registered or recorded delivery mail, or
sent by telex or telegraphic transmission addressed
to the Landlord at its registered office.
7. FINANCE CERTIFICATES
7.1 It is hereby certified that the transaction hereby effected
does not form part of a larger transaction or of a series of
transactions in respect of which the amount or value or the
aggregate amount or value of the consideration (other than
rent) exceeds (euro)6,350 and.
7.2 That the lease is wholly attributable to property which is not
residential property;
7.3 That section 53 of the Stamp Duties Consolidation Act 1999
(lease combined with building agreement for
dwellinghouse/apartment) does not apply to this instrument.
8. ASSENT
The Landlord hereby assents to the registration of this Lease as a
burden on Folio 3533L of the Register of Leaseholders County Wicklow
and hereby consents to the use of the Land Certificate(s) (if issued)
of the said Folio(s) for the purposes of such registration.
IN WITNESS whereof the parties hereto have executed this Lease in the manner
following and on the day and year first above WRITTEN.
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FIRST SCHEDULE
(DEMISED PREMISES)
ALL THAT and those the portion of lands comprised in Folio 3533L of the Register
of Leaseholders County Wicklow together with the buildings erected thereon shown
for the purposes of identification only outlined in red on the Plan and each and
every part thereof and all the appurtenances belonging thereto and known as XXX
Business Park and situate at Bray in the County of Wicklow and including without
prejudice to the generality of the foregoing TOGETHER WITH a right of way over
the area marked blue at all times hereafter by day and night on foot and with
motor vehicles for all purposes connected with the use of the Demised Premises
in common with the Landlord, their Agents, Licencees, Assignees,
all the Conduits and Plant in, upon, over or under the exclusivity serving the
same;
all Landlord's fixtures and fittings now or hereafter in or upon same;
all additions, alterations and improvements thereto;
but excluding the airspace above and the ground below the Demised Premises.
SECOND SCHEDULE
(ANCILLARY RIGHTS)
The following rights and easements are demised (to the extent only that the
Landlord is entitled to make such a grant) to the Tenant to be enjoyed in common
with the Landlord and the tenants and occupiers of the Adjoining Property and
all other persons authorised by the Landlord or having the like rights and
easements;
1. the free uninterrupted passage and running of the Utilities to and from
the Demised Premises through the Conduits which are now, or may at any
time during the Term be, in, on, under or passing through or over the
Adjoining Property;
2. the right to enter the airspace above the roof of the Demised Premises,
for the sole purpose of carrying out any works for which the Tenant is
liable under this Lease.
THIRD SCHEDULE
(EXCEPTIONS AND RESERVATIONS)
The following rights and easements and excepted and reserved out of the Demised
Premises to the Landlord and all other persons authorised by the Landlord or
having the like rights and easements;
1. The free and uninterrupted passage and running of the Utilities through
the Conduits which are now, or may at any time during the Term be, in,
on, under, or passing through or over the Demised Premises;
2. The right of light, air, support, protection and shelter and all other
easements and rights now or hereafter belonging to or enjoyed by the
Adjoining Property;
3. The ground below the Demised Premises;
4. Full right and liberty at any time hereafter to raise the height of, or
make any alterations or additions or execute any other works to any
buildings on the Adjoining Property, or to erect any new buildings of any
height on the Adjoining Property in such manner as the Landlord or the
person exercising the right shall think fit notwithstanding the fact that
the same may obstruct, affect or interfere with the amenity of, or access
to, the Demised Premises or the passage of light and air to the Demised
Premises but not so that the Tenant's use and occupation thereof is
materially affected;
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5. The right, subject to recompensing the Tenant for any damage caused
thereby, to build on or into any boundary or party wall of the Demised
Premises and, after giving not less than seven days prior written notice,
to enter the Demised Premises to place and lay in, under or upon the same
such fittings for any intended party walls or party structure with the
foundation therefor as the Landlord shall reasonably think necessary and
for such purpose to excavate the Demised Premises along the line of the
junction between the Demised Premises and the Adjoining Property and also
to keep and maintain the said footings and foundations;
6. All mines and minerals in or under the Demised Premises with full power
of working and getting to the same provided reasonable compensation is
paid to the Tenant for any damage thereby occasioned to the Demised
Premises.
FOURTH SCHEDULE
(RENT REVIEW)
1. DEFINITIONS
In this Schedule the following expressions shall have the following
meanings:-
1.1 "Base Rate" means the annual rate of interest for the time being
chargeable under Xxxxxxx 00 xx xxx Xxxxxx Xxx, 0000;
1.2 "the Institute" means the Irish Auctioneers and Valuers Institute;
1.3 "the Law Society" means the Law Society of Ireland;
1.4 "Relevant Review Date" means each of the first day of the sixth,
the eleventh, the sixteenth, year of the Term and any additional
date notified under clause 7 of this Fourth Schedule and "Relevant
Review Date" shall be construed accordingly;
1.5 "The Reviewed Rent" means the rent agreed or determined in
accordance with the provisions of this Schedule;
1.6 "the Society" means the Society of Chartered Surveyors.
2. UPWARDS ONLY RENT REVIEW
The rent first reserved by this Lease shall be reviewed at each Review
Date in accordance with the provisions of this Schedule and from and
including each Review Date, the rent shall equal the higher of either the
rent contractually payable immediately before the Relevant Review Date or
the open market rent on the Relevant Review Date, as agreed or determined
pursuant to the provisions of this Schedule.
3. AGREEMENT OR DETERMINATION OF THE REVIEWED RENT.
3.1 the Reviewed Rent may be agreed at any time between the Landlord
and the Tenant or, in the absence of agreement be determined not
earlier than the Relevant Review Date by an Arbitrator to be
nominated, in the absence of agreement between the parties, upon
the application (made not more than two calendar months before or
at any time after the Review Date) of either the Landlord or the
Tenant by either the Present of the Law Society, or the President
of the Institute or the President of the Society at the discretion
of the party entitled to make the application.
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3.2 In the event of the president or officer endowed with the
functions of the said President of the Law Society or the
Institute or the Society, being unable or unwilling to make the
nomination therein mentioned the same may be made by the next
senior Officer of the Law Society or the Institute or the Society
who shall be so able and willing.
4. THE ARBITRATOR
4.1 All arbitrations hereunder shall be conducted in accordance with
the provisions set forth in the Arbitration Acts, 1954-1998.
4.2 If the Arbitrator relinquishes his appointment or dies or if it
becomes apparent that for any reason he is unable or has become
unfit or unsuited (whether because of bias or otherwise) to
complete his duties or if he is removed from office by Court
Order, a substitute may be nominated in his place and in relation
to any such nomination the procedures hereinbefore set forth apply
as though the substitution were a nomination de novo, which said
procedures may be repeated as many times as may be necessary.
5. DETERMINATION BY ARBITRATOR
The Reviewed Rent to be determined, by the Arbitrator shall be such as in
his opinion represents at the Review Date the full open market, yearly
rent for the Demised Premises let as a whole without fine or premium:
ON THE BASIS of a letting with vacant possession thereof by a willing
landlord to a willing tenant for a term (commencing on the Review Date)
equal to the greater of fifteen years or the residue the unexpired of the
Term and subject to the provisions of this Lease (other than as to the
amount of the Initial Rent but including such of said provisions as
pertain to the review of rent);
ON THE ASSUMPTION that:-
At and until the Review Date all the covenants on the part of the Tenant
and the conditions contained in this Lease have been fully performed and
observed;
In the event of the Demised Premises having been damaged or destroyed and
not having been fully repaired, reinstated or rebuilt (as the case may
be) such damage or destruction had not occurred; and
HAVING REGARD to other open market rental values current at the Review
Date insofar as the Arbitrator may deem same to be pertinent to the
determination;
BUT DISREGARDING any effect on letting value of:-
The fact that the Tenant is or has been in occupation of the Demised
Premises or any part thereof;
The goodwill which has attached to the Demised Premises by reason of the
business carried on thereat;
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Any works executed by and at the expense of the Tenant in, on, to or in
respect of the Demised Premises other than required works PROVIDED that
in the interpretation of this sub-paragraph (c):-
The expression "required works" means works executed by the Tenant in
pursuance of an obligation imposed on the Tenant by this Lease or by any
Lease of which this Lease is a renewal (other than works which may be
required pursuant to clause 4.18 or by virtue of any licence or deed of
variation relating to the Demised Premises.
6. INTERIM PAYMENTS PENDING DETERMINATION
6.1 If the reviewed rent in respect of any period ("the Current
Period") is not ascertained on or before the Review Date referable
thereto, rent shall continue to be payable up to the quarter Xxxx
Day next succeeding the ascertainment of the reviewed rent at the
rate payable during the preceding period AND within seven days of
such ascertainment the Tenant shall pay to the Landlord the
appropriate instalment of the reviewed rent together with any
shortfall between (i) the aggregate of rents actually paid for any
part of the Current Period and (ii) rent at the rate of the
reviewed rent attributable to the interval between the Review Date
and such Quarterly Xxxx Day and together also with interest at the
Base Rate on said shortfall, such interest to be computed on a day
to day basis.
6.2 For the purpose of this paragraph the reviewed rent shall be
deemed to have been ascertained on the date when the same shall
have been agreed between the parties or, as the case may be on the
date of the notification to the Tenant of the determination of the
Arbitrator.
7. RENT RESTRICTIONS
If at a Review Date the Landlord's right to collect, review or increase
the rent as and from that Review Date in accordance with this Lease is
restricted or modified by law, then when such restriction or modification
is removed, relaxed or modified, the Landlord may, by giving not less
than seven days' notice in writing to the Tenant, prescribe as an
additional Review Date the date of expiration of such notice and the rent
payable from such additional Review Date shall be ascertained in
accordance with this Schedule.
8. MEMORANDA OF REVIEWED RENT
As soon as the amount of any reviewed rent has been agreed or determined,
memoranda thereof shall be prepared by the Landlord or its solicitors and
thereupon shall be signed by or on behalf of the Tenant and the Landlord
and the Tenant shall be responsible for and shall pay to the Landlord the
stamp duty (if any) payable on such memoranda and any counterparts
thereof, but the parties shall each bear their own costs in respect
thereof.
9. TIME NOT OF THE ESSENCE
For the purpose of this Schedule, time is not of the essence.
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SIGNED SEALED AND DELIVERED
by the said RONAN O'CAOIMH
XXXXXXXX X'XXXXXXX AND
XXX XXXXX in the presence of:-
PRESENT when the Common Seal of
TRINITY BIOTECH PLC was affixed hereto:-
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