Exhibit 10.1
Dated 2nd August 2011
SEAN KEENAN, EAMON REAY, TOM HOGAN AND EUGENE DEVANEY
Lessor
DELCATH SYSTEMS LIMITED
Lessee
LEASE
19 Mervue Industrial Estate
Mervue
Galway
LEWIS C. DOYLE
&
CO.
Solicitors
Augustine Court
St. Augustine Street
GALWAY.
REF: NF. 59954(M268.2)
(AC#4196077 9.DOC)
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Stamp Certificate
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| Document ID : | 110054135W | Date Issued: 08/08/2011 | |
| Stamp Certificate ID : | 11-0124755-DD3B-020811-F | Notice Number: 60699897-02230M | |
| Duty: | € 1,544.50 | ||
| Total: | € 1,544.50 | ||
| Date of Execution of Instrument: | 02/08/2011 | ||
| Parties From: | EUGENE DEVANEY | ||
| THOMAS GERARD HOGAN | |||
| EAMONN REAY | |||
| SEAN KEENAN | |||
| Parties To: | DELCATH SYSTEMS LTD. | ||
| Property | 19 Mervue Industrial Estate, Mervue | ||
| Non Residential: Rent: € 153,292.00 | Duty: € 1,532.00 | ||
| Rent Review: € 12.50 | |||
THIS INDENTURE
made the 2nd
day of August 2011
BETWEEN:
SEAN KEENAN, EAMON REAY, TOM HOGAN AND EUGENE DEVANEY
all of Mervue Business Park, Mervue Galway, trading as the "MBP Co-Ownership Group" (hereinafter called "The Lessor") of the One Part and
DELCATH
SYSTEMS
LIMITED
of Arthur Cox Building, Earlsfort Terrace, Dublin 2 (hereinafter called "The Lessee") of the Other Part.
WITNESSETH AS FOLLOWS:
1.
DEFINITIONS AND INTERPRETATION
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1.1
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In this Lease unless the context otherwise requires the following expressions have the meaning assigned to them respectively that is to say:-
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"LESSOR" shall where the context so admits include the Reversioner for the time being immediately expectant on the Term hereby granted.
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"LESSEE"
shall include the Lessee's successors in title and assigns.
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"DEMISED PREMISES" means the premises more particularly described in the First Schedule hereto and shall be deemed to include the fixtures, fittings and rights hereby demised subject to and with the benefit of the rights and easements set out in the Second and Third Schedules.
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"PLANNING
ACTS" means the Planning and Development Acts 2000 to 2010 and any Act or Acts for the time being in force amending or replacing the same and any orders regulations or directions issued under or by virtue of the said Acts for the time being in force or replacing the same
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"INSURED
RISKS" means all or any loss or damage or prospective loss or damage by fire, flooding, water, storm, tempest, lightning, explosion, earthquake, weather conditions, impact of aircraft and articles dropped therefrom and such further risks or perils to or in connection with the Demised Premises and the fixtures and fittings thereof together such reasonable fees, expenses, charges and monies of and incidental to the rebuilding and/or reinstatement or loss (whether total or otherwise) of the Demised Premises or any part thereof as the Lessor may from time to time reasonably deem it desirable to insure against including but not by way of limitation:-
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(a)
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Loss of two years rent from time to time payable out of the Demised
Premises.
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(b)
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All expenditure or anticipated expenditure in the demolition and clearance of the Demised Premises.
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(c)
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A sum equivalent to fifteen per cent ofthe full replacement and reinstatement value of the Demised Premises in respect of Architects, Quantity Surveyors Engineers, and other professional and Consultancy fees.
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1.2
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Words importing the masculine gender only include the feminine gender.
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1.3
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Words importing the singular number only include the plural number and vice versa and where there are two or more persons included in the expressions the "Lessor" or the "Lessee" shall be deemed to be made by such persons jointly and severally.
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1.4
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Any reference to a statute or statutes (whether specifically specified or not) or to any sections sub-sections therein shall include any amendments or re-enactments thereof for the time being in force and all Statutory Instruments, Orders, Notices,
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Regulations, Consents and Directions for the time being made, issued or given thereunder or deriving validity therefrom.
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1.5
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Notwithstanding any provisions to the contrary contained in this Lease, the parties hereby expressly agree that any rights conferred on the Lessor to have access to or entry upon the Demised Premises shall be construed as extending to such other persons as may from time to time be properly authorised by the Lessor in writing, including agents and professional advisors and the Lessor in turn hereby covenants to ensure that any parties exercising such rights shall:
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(a)
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use all reasonable endeavours to do so outside the Lessee's normal business hours;
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(b)
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ensure that as little damage or disturbance is done to the Demised Premises or any fixtures or fittings therein or any goods thereat and as little inconvenience is caused to the Lessee's business as is reasonably practicable;
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(c)
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only resort to the Demised Premises where the purpose of the proposed entry cannot otherwise be practically and conveniently effected;
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(d)
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effect any works in accordance with good building practice and in substantial compliance with all relevant consents, such works to be carried out by persons carrying or covered by an appropriate level of public liability and employer's liability insurance;
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(e)
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make good without delay any damage to the Demised Premises that may be caused by such exercise; and
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(f)
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give the Lessee no less than 72 hours prior notice in writing in respect of inspection and no less than 10 working days notice in respect of any works (except in the case of emergency).
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1.6
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Each covenant by the Lessee not to do any act or thing shall be deemed to include a covenant not to knowingly permit or suffer that act or thing to be done.
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2.
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DEMISE
HABENDUM
AND
REDDENDUM
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In consideration of the rent and covenants on the part of the Lessee hereinafter reserved and contained the Lessor hereby demises unto the Lessee
ALL THAT
the Demised Premises
TO HOLD
the Demised Premises subject as aforesaid unto the Lessee from 2nd August 2011 (the "Term Commencement Date") to 1st August 2021 (hereinafter referred to as the "Term")
YIELDING AND PAYING
therefore during the said term unto the Lessor the following yearly rents plus VAT (if applicable) clear of all deductions by equal quarterly payments in advance on the 1st of July, October, January and April of each year of this demise:
(a) Year 1 - €1 06,051.00
(b) Year 2- €134,974.00
(c) Year 3 - €159,076.50
(d)
Year
4-
€183
,
179.00
(e) Year 5 - €183,179.00
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(f)
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Year 6 to 10 inclusive from and including the Review Date (as hereinafter defined) such yearly rent as becomes payable pursuant to the Fourth Schedule hereof, and in every case the same is to be paid by standing order or otherwise in the manner notified from time to time by the Lessor
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PROVIDED ALWAYS that in the event of the said rent or any monies payable hereunder or any part thereof being in arrear for more than 14 days the Lessee shall
pay interest thereon calculated on a daily basis at a rate of four per cent per annum above the three months European Inter Bank Offer Rate as quoted by the European Central Bank or if there shall be no such rate the corresponding or nearest appropriate rate thereto at the date upon which the said sums fall due or become payable or if there shall be no such rate at the rate per centum per month which shall exceed 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 such other monthly rate of interest as may from time to time be chargeable upon arrears of tax)from the date on which it becomes payable until the date payment is made.
AND
ALSO
YIELDING
AND
PAYING
from time to time the following additional sums
(hereinafter referred to as "the additional sums") that is to say:-
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(a)
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such
sum or sums as shall be equal to the amount which the Lessor may expend in effecting and maintaining the insurance (but not plate glass or double glazing insurance) of the Demised Premises against the Insured Risks such sum or sums to be paid within 14 days of written demand. The Lessee shall be entitled to inspect the Policy of the Insurance obtained by the Lessor in respect of the Insured Risks as often as shall be reasonably necessary but in any event at least once in every year throughout the Term (the "Insurance Premium").
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(b)
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all rates (including water rates) taxes, duties, charges, assessments, impositions and outgoings whatsoever whether Parliamentary, Municipal Parochial Local or of any other description now or hereafter to be assessed, charged or imposed upon or payable in respect of the Demised Premises or any part thereof PROVIDED THAT the Lessee shall not be responsible for any pre-existing liabilities in this regard which have accrued prior to the Term Commencement Date and PROVIDED FURTHER THAT it is agreed between the parties that the following abatements shall apply regarding rates, insurance premiums and annual service charge (if any)s payable hereunder during the Term:
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(i)
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Year I - 50% reduction in rates, Insurance Premium and annual service charge (if any)
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(ii)
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Year 2 - 35% reduction in
rates, Insurance Premium and annual service charge (if any)
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(iii)
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Year 3 - 20% reduction in rates, Insurance Premium and annual service charge (if any)
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(iv)
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Year 4 - I 0% reduction in
rates, Insurance Premium and annual service charge (if any)
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There shall be no further reductions for the remainder of the Term unless otherwise agreed by the parties and the Lessee shall pay all of the rates, the Insurance Premium and annual service charge (if any) for the remainder of the Term without reduction.
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3.
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THE
LESSEE
HEREBY
COVENANTS
WITH
THE
LESSOR
AS
FOLLOWS:-
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3.1
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To pay the rent hereby reserved and the additional sums at the times and in the manner aforesaid.
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3.2
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To pay for all gas, electricity, and water consumed on the Demised Premises and to observe and perform at the Lessee's expense all present and future regulations and requirements of the gas electricity and water supply Authorities PROVIDED THAT the Lessee shall not be responsible for any pre-existing liabilities in this regard which have accrued prior to the Term Commencement Date.
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3.3
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(a)
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Henceforth from the Term Commencement Date to comply in all respects with the provisions of every enactment (which expression in this clause includes every Act of Parliament or of the Oireachtas already or hereafter to be passed as well as every instrument regulation and bye-law already or hereafter to be made thereunder) and every notice or order or proposal for a notice or order or licence, consent, permission or direction given or made thereunder so far as the same shall relate to or affect the Demised Premises or the user thereof any fixtures, machinery, plant or chattel for the time being fixed thereto or placed thereon and to execute all works which under any enactment shall be required to be executed upon the Demised Premises PROVIDED THAT the Lessee shall not be responsible for any pre-existing liabilities in this regard which have accrued prior to the Term Commencement Date.
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(b)
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Within
14 days of the receipt by the Lessee of the same, to supply a copy to the Lessor of any notice or order or proposal for a Notice or Order or Licence consent, permission or direction given or made under any enactment or otherwise and relating to the Demised Premises and to permit the Lessor (subject to observance the provisions of clause 1.5 of this Lease) to enter upon the Demised Premises to inspect the same for any purpose in connection with any such enactment or any such Notice, Order, proposal licence consent, permission or direction as aforesaid.
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(c)
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At
the request and cost of the Lessor, to join with the Lessor in making any objection, representation, or appeal in respect of any such Notice, Order Proposal or direction as aforesaid or any refusal of or condition imposed under any such Licence, consent or permission as aforesaid SAVE where any such objection, requisition or appeal is not in the best interests of the Lessee (acting reasonably).
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3.4
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(a)
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To repair, maintain and keep the interior of the Demised Premises and every part thereof, together with all drains and other pipes, lights, signs, electric installations, sanitary and water apparatus and all other apparatus, to include the air handlers and air conditioners (if any) exclusively serving the Demised Premises in good order, repair and condition (usual wear and tear being excepted) and in the like condition to yield up the same at the expiration or sooner determination of the demise
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PROVIDED
ALWAYS
that the Lessee shall not be liable for damage caused by any of the Insured Risks or the Uninsured Risks (as hereinafter defined) unless the relative policy or policies of insurance shall have bee
rendered void or voidable or payment of the whole or any part of the insurance moneys in respect thereof shall have been refused in consequence of some wilful and knowing act or default on the part of the Lessee or the employees, servants, agents, licensees or invitees of the Lessee
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PROVIDED
THAT
nothing in this Lease shall oblige the Lessee to put the Demised Premises into a better state of repair than exists at the Term Commencement Date as evidenced by the Schedule of Condition annexed to this Lease, including incurring any expenditure on the renewal and/or for replacement of items or elements of the Demised Premises (including plant and equipment) where as a consequence of such expenditure the Demised Premises would be in a better state of repair or condition than that described in the Schedule of Condition.
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(b)
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The Lessor and the Lessee hereby agree that (save where the reason for the replacement being required is due to an act or default of the Lessee) in the event that any of the Lessor's plant, machinery, fixtures, fittings or equipment in the Demised Premises become beyond economic repair and therefore require to be replaced, the reasonable and properly vouched cost of (i) the removal of the defunct piece of plant, machinery, fixture, fitting or equipment, (ii) the purchase of the replacement and (iii) the installation of such replacement in the Demised Premises, shall be borne equally between the parties on a 50/50 basis.
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(c)
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The Lessee covenants to paint the interior of the Demised Premises at the end of every third year of the Term.
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3.5
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To keep the Demised Premises clean and tidy and free from deposits of materials or refuse and not to bring or keep or suffer to be brought or kept on the Demised Premises any dump or rubbish or scrap heap or anything which is unclean, unsightly, noisome, or offensive to it or its environs but so often as it shall be necessary or desirable to remove from the Demised Premises all such material, refuse, rubbish and scrap which may accumulate or be there
PROVIDED
ALWAYS
that if the Lessee does not comply with this covenant within a period of 14 days of being so notified the Lessor may (without prejudice to its other remedies under this Lease or otherwise) remove any such material, refuse, rubbish, or scrap and the Lessee shall pay to the Lessor the reasonable and properly vouched cost of the same within 21 days of written demand.
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3.6
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Not any time during the said Term without the previous consent in writing of the Lessor (such consent not to be unreasonably withheld, conditioned or delayed) and except in accordance with Plans, elevations, sections and specifications previously submitted to and approved by the Lessor, to erect any additional building upon the Demised Premises nor to make or suffer to be made any alteration or addition whatsoever in or to the Demised Premises or remove or injure or suffer to be removed or injured any of the principal walls, windows, timbers, girders, iron or steel work, ceilings, roofs, floors, tiles, thereof or make any alterations in the Plan or elevation of any of the buildings for the time being in or on the Demised Premises either internally or externally nor to erect any poles, masts or wires on or from the Demised Premises
PROVIDED
THAT
the Lessee shall be permitted to make internal, non-structural alterations to the Demised Premises without the need for obtaining the Lessor's consent. The Lessor may as a condition of giviflg any consent under this clause require the Lessee to enter into such reasonable covenants with the Lessor as the Lessor shall require in regard to the execution of any alteration or addition to the Demised Premises and the reinstatement thereof at the determination of the lease or
otherwise. In connection with any application for the Lessor's approval or consent under this clause, the Lessee shall pay the Lessor's Architects and/or Surveyors reasonable and properly vouched costs relating thereto, regardless of whether or not consent is granted
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3.7
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Not to give permission for any new window, lights, opening, doorway path, passage, drain or other encroachment or easement to be made into, against or upon the said Demised Premises which might be or grow to be an annoyance or inconvenience to the Lessor and in case any such window, light, opening, doorway, path, passage, drain or other encroachment or easement shall be made or attempted to be made to give immediate notice thereof to the Lessor upon becoming aware of same and at the request and cost of the Lessor adopt such means as maybe reasonably required or deemed proper by the Lessor for preventing any such encroachment or the acquisition of any such easement.
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3.8
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Not to place or affix to the front of the Demised Premises any water, ventilating, or other pipe and not to alter cover up or change any of the architecture or architectural decorations or the external colour of such building or to make any addition, temporary or otherwise to the Demised Premises either in height or projection without in every case obtaining the prior consent in writing of the Lessor (such consent not to be unreasonably withheld, conditioned or delayed).
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3.9
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Not to paint, place, attach or exhibit or suffer to be painted, placed, attached or exhibited on the exterior of the Demised Premises or in the interior thereof so as to be visible from the outside any inscription, bill, sign, blind, signboard, fascia or advertisement or other item (except as shall have been previously approved by the Lessor, with such approval not to be unreasonably withheld, conditioned or delayed).
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3.10
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To keep the Demised Premises in good decorative order repair and condition throughout the Term
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3.11
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Subject to observance the provisions of clause 1.5 of this Lease and at all times during an emergency, to permit the Lessor with or without its agents, surveyors, workmen and others as the case may be:
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(a)
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To enter and examine the conditions of the Demised Premises for any defects, decays, defects wants of reparation to the same for which the Lessee shall be liable hereunder and to give to the Lessee or leave on the Demised Premises notice thereof in writing together with notice of the hours within which repairs and works may be executed and if the Lessee shall not within twenty one days after such notice (or forthwith in case of emergency) commence and proceed diligently with the execution of such repairs and works it shall be lawful for the Lessor and its Contractors, Agents and workmen (but without prejudice to the right of re-entry hereinafter containedr· to enter the Demised Premises and execute all such repairs and works and do such acts as may be necessary to comply with. the said notice and the reasonable and properly vouched costs thereof shall be a debt due from the Lessee to the Lessor
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(b)
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To enter the Demised Premises for the purpose of taking Schedules or Inventories of fixtures fittings and things in the Demised Premises to be yielded up at the expiration or sooner determination of this demise
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PROVIDED
THAT the person or persons so entering shall cause as little damage to the Demised Premises as possible and shall make good all damage thereto occasioned by any such entry without unreasonable delay and to the Lessee's reasonable
satisfaction, but without payment of compensation for any inordinate annoyance noise, vibration or inconvenience caused to the Lessee or their employees.
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3.12
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To use the Demised Premises for manufacturing purposes with ancillary offices or otherwise in accordance with planning permission and not without the Lessor's consent in writing, which consent shall not unreasonably be withheld, conditioned or delayed, to use or permit or suffer the same or any part thereof to be used for any other purpose.
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3.13
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(a)
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Subject as hereinafter mentioned not to mortgage, assign, underlet or part with or share the possession or occupation of the Demised Premises or any part thereof, or suffer any person to occupy or use the Demised Premises or any part thereof as Licensee, or permit any assignment or sub-letting BUT SO THAT NOTWITHSTANDING the foregoing the Lessor shall not unreasonably withhold, condition or delay its consent to an assignment or underletting of the entire of the Demised Premises
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PROVIDED
THAT the Lessee shall be permitted to sub-let or share occupation of all or any part of the Demised Premises with any related company (meaning any company related to Delcath Systems Limited within the meaning of Section 140(5) of the Companies (Amendment) Act 1990) without having to obtain Lessor's consent SUBJECT ALWAYS to the conditions that in the case of sharing possession of the Demised Premises no relationship of landlord and tenant shall be created or allowed to arise and in the case of a sub-letting where a landlord and tenant relationship exists, a deed of renunciation in respect of any rights of renewal pursuant to Landlord and Tenant legislation shall be executed by the said related company;
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(b)
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Upon the Lessor consenting to any assignment of the Demised Premises to procure that the assigns enter into a covenant with the Lessor in such form as the Lessor shall reasonably require to pay the rents hereby reserved and perform and observe the covenants on the part of the Lessee herein contained during the residue of the Term hereby granted.
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(c)
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Upon the Lessor consenting to any under-letting of the Demised Premises or any part thereof to enter into such covenants and procure the sub-tenant to enter into such covenants with the Lessor as the Lessor shall reasonably require in regard to the form and contents of the under-lease or tenancy agreement to be granted or made by the Lessee or otherwise in connection therewith.
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(d)
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Within one month after any permitted assignment or under-letting of the-· Demised Premises or any part thereof or any devolution of the interest of the Lessee
therein or any devolution or creation of any interest in the Demised Premises for which the consent of the Lessor is required, to give notice thereof in writing to the Lessor and to produce to the Solicitors for the time being of the Lessor or to the Lessor the assurance, counterpart, under-lease, Probate and Will, Letters of Administration, Order of Court or other instrument under which such devolution shall have occurred and to pay for the registration fees thereof and also such additional fee as maybe charged for registration by the Superior Lessor.
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3.14
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To permit the Lessor during the three months immediately preceding the determination of this demise (whether by effluxion of time or otherwise) to affix and
retain upon any part of the exterior of the Demised Premises a notice for the disposal of the same and to permit persons with written authority from the Lessor or its agents at all reasonable times to view the Demised Premises PROVIDED THAT such notice or sign does not materially interfere with the visibility of the Demised Premises.
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3.15
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To give notice to the Lessor as soon as reasonably practicable after becoming aware of any notice of claims affecting the Demised Premises or any part thereof.
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3.16
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To indemnify and keep indemnified the Lessor against any reasonable and properly vouched expenses, costs, claims, demands, damages and other liabilities in respect of the injury to or death of any person or damage to any property arising directly out of the following: -
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(a)
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The state of repair and condition of the Demised Premises.
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(b)
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The existence of any alterations thereto or the state of repair or conditions of such alterations.
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(c)
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The use of the Demised Premises by the Lessee.
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(d)
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Any work carried out or in the course of being carried out thereto by the
Lessee.
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(e)
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Anything now or hereafter attached to or projecting therefrom.
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PROVIDED
ALWAYS that the foregoing indemnity shall be limited to the extent that the relevant actions, expenses, costs, claims, damages and other liabilities are the responsibility of the Lessor, management company (if any) or the superior landlord (if any) or are caused by the negligent act or default of the Lessor, the management company (if any) or the superior landlord (if any) or their respect servants or agents AND FURTHER PROVIDED that the Lessor shall use reasonable endeavours to mitigate any loss, claim or other costs in this regard and shall not pay settle or compromise any actions, suits, claims or demands by any third party without the Lessee's prior written consent (not to be unreasonably withheld or delayed).
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FOR
THE AVOIDANCE OF DOUBT this indemnity will not extend to any expenses, costs, claims, demands, damages and other liabilities whatsoever in respect of the injury or death of any person or damage to any property howsoever arising out of the disrepair and condition of the Demised Premises as of the date hereof.
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3.17
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At the expiration or sooner determination of this demise peaceably and in good and substantial repair and condition as aforesaid (damage by the Insured Risks, the Uninsured Risks and fair wear and tear excepted) to surrender and yield up the Demised Premises unto the Lessor together with all fixtures and additions thereto
PROVIDED
HOWEVER
that the Lessee shall not be obliged to remove any of the Lessee's trade fixtures and any fixtures, fittings, materials and things of whatsoever nature installed or fixed on or attached to the Demised Premises by the Lessee in pursuance of a written consent in that behalf given by the Lessor (including, for the avoidance of doubt, the Lessee's original fit out)
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PROVIDED
FURTHER
THAT
the Lessee shall not be obliged to reinstate the Demised Premises to any better state of repair or condition than that which exists at the Term Commencement date as evidenced by the Schedule of Condition.
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3.18
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Not to do or knowingly permit to be done anything in or upon the Demised Premises or any part thereof which may be or become a nuisance, damage, disturbance or
danger to the Lessor or the Owners or Lessee or occupiers of adjoining or neighbouring premises.
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3.19
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Not to permit or knowingly suffer the Demised Premises or any part thereof to be used for an illegal or immoral purpose or for any offensive, disreputable, noisy or dangerous trade, business, Pursuit or occupation or for residential or sleeping purposes.
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3.20
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Not, without the consent of the Lessor, such consent not to be unreasonably withheld or delayed, to install any machinery on the Demised Premises which shall be noisy or cause vibration or which shall be either dangerous or a nuisance to the Lessor or other occupants or the owners or Lessee or Occupiers of adjoining premises or of neighbouring premises PROVIDED THAT the Lessee is hereby expressly permitted to install such machinery on the Demised Premises which is normally required or used for or in connection with the business or activities carried on by the Lessee from time to time at the Demised Premises.
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3.21
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Not to do or permit or knowingly suffer to be done any act or things which may render any increased premiums payable for the insurance of the Demised Premises or which may make void or voidable any policy or policies of insurance thereon and (without prejudice to the Lessor's right of action in respect of a breach of the provisions contained in this paragraph) to repay to the Lessor all sums paid by way of increased premiums and all reasonable and property vouched expenses incurred by a direct consequence of a breach of the provisions contained in this paragraph.
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3.22
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Not to knowingly stop up or obstruct or permit or suffer to be stopped up or obstructed the drains, sewers, gutters, pipes, channels and water courses of the Demised Premises or of the adjoining premises or to suffer oil, grease or other deleterious substances to enter them.
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To indemnify and keep indemnified the Lessor against all and any expenses, costs, claims, demands, damages and other liabilities whatsoever in respect of the injury or death of any person or damage to any property howsoever arising directly out of:
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(a)
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The state of repair or condition of the Demised Premises;
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(b)
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The existence of any alterations carried out by the Lessee thereto or the state of repair or condition of such alterations;
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(c)
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The user of the Demised Premises;
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(d)
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Any work carried out or in the course of being carried out to the Demised
Premises by the Lessee, its servants or agents or sub-tenants;
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(e)
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Anything now or hereafter attached to or projecting therefrom;
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PROVIDED
ALWAYS that the foregoing indemnity shall be limited to the extent that the actions, expenses, costs, claims, damages and other liabilities are the responsibility of the Lessor pursuant to the terms of this Lease or are caused by the negligent act or default of the Lessor or the management company (if any) or their respective servants or agents and shall exclude all loss of profits or other heads of loss that are not reasonably foreseeable by the Lessee AND FURTHER PROVIDED that the Lessor shall use reasonable endeavours to mitigate any loss, claim or other costs in this regard.
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3.23
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To pay the cost of stamping and registering this Indenture.
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3.24
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To use reasonable endeavours to observe and perform all the covenants and conditions on the Lessee's part to be observed and performed contained in the Head Lease, being the Lease made the 25th day of June 1997 between Industrial Development Agency (Ireland) of the One Part and Multis Limited of the Other Part (other than payment of rent, rates and other outgoings and the provisions of clauses
14 and 15 of the Second Schedule of the Head Lease PROVIDED THAT in the event
of any conflict between the tenns of this Lease and the Head Lease, or in the event of the obligations under the Head Lease being more onerous than those imposed by this Lease, the tenns of this Lease shall prevail.
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4.
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THE
LESSOR
HEREBY
COVENANTS
WITH
THE
LESSEE
AS
FOLLOWS:
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4.1
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That the Lessee paying the rent hereby reserved and the additional sums hereby made payable and observing and perfonning the covenants, conditions and stipulations on their part herein contained shall peaceably hold and enjoy the Demised Premises during this demise without any interruption by the Lessor or any person rightfully claiming under or in trust for it.
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4.2
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To perform and observe the covenants on its part under the Head Lease and to use their best endeavours to procure that the Head Lessor and the Management Company (if any) similarly perform and observe the covenants and conditions on the part of the Head Lessor and the Management Company contained in the Head Lease.
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4.3
|
To effect and maintain at all times throughout this demise in an Insurance office of repute insurance of the Demised Premises against the Insured Risks in full reinstatement value thereof at competitive rates will expend all monies received (other than in respect of loss of rent) by virtue of any such insurance in reinstating the Demised Premises as soon as is reasonably possible after the destruction thereof or any damage thereto.
|
|
4.4
|
The Lessor will be liable for all structural and exterior repairs (including the remedy of any latent or inherent defects) to the Demised Premises unless the same are caused through the wilful act, neglect or default of the Lessee.
|
|
5.
|
PROVIDED
ALWAYS
IT
IS
HEREBY
AGREED
AND
DECLARED
as
follows:
|
|
5.1
|
Notwithstanding and without prejudice to any other remedies or powers herein contained or otherwise available to the Lessor, if any of the following events shall occur:
|
|
(a)
|
If
the rent hereby reserved and made payable or any part thereof shall be unpaid for twenty-one days after same shall have become payable and demanded in writing
|
|
(b)
|
In the event of any material breach, non-performance or non-observance by the Lessee of any covenant on its part herein or of any proviso or condition herein contained and on its part to be performed and observed
|
|
(c)
|
If the Lessee being a company shall enter into liquidation whether compulsory or voluntary (save only a voluntary liquidation for the purpose of reconstruction of amalgamation)
|
|
(d)
|
If the Lessee being an individual shall (or being more than one individual any one of them shall) become bankrupt or enter into a composition or arrangement with his creditors or seek the protection of the Court or suffer any distress or execution to be levied on his goods
|
|
|
THEN
and in any such case it shall be lawful for the Lessor at any time thereafter to re-enter the Demised Premises or any part thereof in the name of the whole and thereupon this demise shall absolutely cease and determine but without prejudice to any right of action or remedy of either party in respect of any antecedent breach of the covenants on the other's part therein contained.
|
|
5.2
|
If the Demised Premises or any part thereof(including the access thereto) shall at any time be destroyed or so damaged by any of the Insured Risks so as to be unfit for occupation or use and the relative policy or policies of insurance effected by the Lessor shall not have been vitiated or payment of the policy monies refused in whole or in part due to any act or default on the part of the Lessee then the rent and additional sums hereby reserved or a fair and just proportion thereof according to the nature and extent of the damage sustained shall be suspended and cease to be payable until the Demised Premises shall again have been rendered fit for occupation and use and in the case of a dispute as to the proportion or period of abatement the same shall be referred to arbitration in accordance with the clause in that behalf hereinafter contained. If the Lessor is prevented (for whatever reason) from rebuilding or reinstating the Demised Premises within a period of two years from the date of same or destruction, notwithstanding its use of all reasonable endeavours to so reinstate, the Lessor shall be relieved from such obligation and shall be solely entitled to all insurance monies. However, in the event that the Lessor is so relieved from such obligation, the Lessee shall be entitled to recover the cost of any improvements it made to the Demised Premises.
|
|
5.3
|
In
such an event, and if this Lease has not already been terminated by frustration, the Lessor or the Lessee may at any time after the expiry of such period of two years by written notice given to the other determine this demise but without prejudice to any claim by either party against the other in respect of any antecedent breach of covenant.
|
|
5.4
|
The Lessor shall ensure that in the event of destruction of or damage to the Demised Premises or the access thereto by any Insured Risk insured against as aforesaid all monies paid under or by virtue of any such policy of insurance as aforesaid (except monies received for loss of rent and additional sums (if applicable)) shall as soon as possible be paid out and applied in re-building repairing or otherwise re-instating the Demised Premises (making up any shortfall out of the Lessor's own monies) as aforesaid and the Lessor shall use reasonable endeavours to reinstate the Demised Premises to have substantially the same gross external area as the existing gross external area of the Demised Premises with substantially the same accesses and facilities commensurate with those enjoyed as ofthe date hereof.
|
|
5.5
|
In the event that the Demised Premises is destroyed or damaged by any event or act normally insured against under property reinstatement insurance policies in Ireland, for premises such as the Demised Premises which is/are not at the time of said damage actually insured against by the Lessor (save however where the reason the risk is an Uninsured Risk is due to an act or default of the Lessee) or in respect of which the Lessor is unable to obtain insurance (the "Uninsured Risks") which renders the Premises unfit for occupation and use THEN:
|
|
(a)
|
within six (6) months of the date of the damage or destruction in question the Lessor shall give written notice to the Lessee (the "Election Notice") stating whether or not it proposes to rebuild or reinstate the Demised Premises;
|
|
(b)
|
in the event that the Election Notice states that the Lessor does propose to rebuild or reinstate the Demised Premises then for the purposes of this Lease
the damage caused by the Uninsured Risk shall be deemed to have been damage caused by an Insured Risk and the provisions of clause 5.2 shall apply;
|
|
(c)
|
if the Election Notice states that the Lessor does not propose to rebuild or reinstate the Demised Premises, or if the Lessor does not serve an Election Notice within the said period of six (6) months, or if the Lessor serves an Election Notice but the Demised Premises has not been reinstated within two (2) years of the date of the damage or destruction, or during the last 18 months ofthe Term, within 90 days ofthe date of the damage or destruction, then the Lessee may determine this Lease at any time thereafter by giving one month's notice in writing to the Lessor;
|
|
(d)
|
the Lessee shall be entitled to the benefit of the provisions of Clause 5.2 in respect of rent and additional sums suspension from the date on which the Demised Premises is damaged or destroyed until the Demised Premises is reinstated so as to be fit for occupation and use or until termination of the Lease (whichever is the earlier) notwithstanding that such destruction or damage shall not have been caused by an Insured Risk.
|
|
6.
|
PRESCRIPTION
|
The Lessee shall not be entitled to any right of light and air to the Demised Premises or to any other right or easement whatsoever (other than those hereby expressly granted) which would or might restrict or interfere with the free user, reconstruction, rebuilding, extension or increase of adjoining premises.
|
7.
|
NOTICES
|
|
|
In
addition to any other prescribed mode of service any notices requiring to be served on the Lessee hereunder shall be validly served if left addressed or sent by ordinary pre-paid post to him (or if there shall be more than one then to any of them) at the Demised Premises or at his or their last known address or addresses in the Republic of Ireland which shall be presumed to be the address herein unless written notice to the contrary is received.
|
|
8.
|
DISPUTE
RESOLUTION
|
If any dispute shall arise:-
|
(a)
|
between the parties hereto with regard to the construction or effect of this Indenture or any provision hereof or otherwise in connection with the Demised Premises or
|
|
(b)
|
between the Lessee and the Lessor tenant or occupier of any part of the Lessors premises relating to any easement or privilege in connection with the Demised Premises and such adjoining premises and relating to the party or other walls appertaining to the Demised Premises or to the amount of any contribution payable by the Lessee or such Lessee's tenant or occupier of such adjoining premises either in respect of rates or otherwise.
|
|
|
Then
and in any such event either of such parties in dispute or difference as aforesaid may give notice in writing of such dispute or difference to such other party as the case maybe and each dispute or difference shall be and is hereby referr,:-ed to arbitration and to the final decision of an arbitrator to be appointed by agreement between the parties or in default of such agreement by the President for the time being to the Incorporated Law Society of Ireland. The award of such Arbitrator shall be final and binding on the parties. The Arbitrator
shall have power to determine all matters in dispute which shall be submitted to him of which notice shall have been given as aforesaid. Upon every or any such reference the cost of and incidental to the reference and Award respectively shall be in discretion of the Arbitrator who may determine the amount thereof or direct the same to betaxed as between Solicitor and client or as between party and party and shall direct by whom and to whom and in what manner the same shall be borne and paid. The submission shall be deemed to be a submission to arbitrate within the meaning of the Arbitration Act 2010, and both the submission and any Award to be made thereunder maybe made a Rule or Order of the High Court. Any Arbitration held in pursuance of this proviso shall be heard and determined at such venue as the Arbitrator may direct in the Republic oflreland.
|
|
9.
|
BREAK
OPTION
|
|
9.1
|
The Lessee may terminate this Lease as of the expiration of the fifth year of the Term, that being 2nd August 2016 ("the Option Date") subject strictly to the
following terms and conditions:
|
|
(a)
|
The Lessee shall serve on the Lessor a notice in writing exercising the said right ("the Notice") at least six months prior to the Option Date and in this regard time shall be of the essence. If the Notice is not served within this time limit, then the option to terminate the Lease shall be lost; and
|
|
(b)
|
The Lessee shall continue to be responsible for rent and all outgoings payable on foot of this Lease up to the Option Date.
|
|
9.2
|
The Lessee shall on or prior to the Option Date deliver to the Lessor the original of this Lease, together with all related title documentation, including a release or discharge of all mortgages, charges and other incumbrances affecting the Lessees interest, whether registered or not), and shall as beneficial owner deliver duly executed and stamped transfer or surrender of this Lease and ( if applicable) shall procure the cancellation of its registration in the Land Registry.
|
|
9.3
|
Any such termination shall be without prejudice to any antecedent breach by either the Lessor or the Lessee of any of their respective covenants herein contained
|
|
9.4
|
In the event of the Lessee who first entered into this Lease assigning it with the Lessor's consent to a third party the provisions contained in this clause shall not apply to such Third Party or any subsequent successors in title thereto.
|
|
10.
|
VAT
|
|
10.1
|
The Lessor hereby exercises its option to tax the rents payable under this Lease pursuant to Section 97(1) of the Value Added Tax Consolidation Act 2010, as amended (the "VAT Act") (the "Lessor's Option to Tax"). The Lessee shall pay to the Lessor all VAT on the rents payable and other payments under this Lease following the delivery by the Lessor to the Lessee of a valid VAT invoice.
|
GUARANTEE
At the request of the Lessee herein and in consideration of the letting hereinbefore contained,
DELCATH SYSTEMS, INC.
hereby jointly and severally guarantees to the Lessor that the Lessee will at all times duly pay the rent hereinbefore reserved and performed and observe the covenants and agreements on the Lessee's part hereinbefore contained and further that any forbearance or giving of time to the Lessee shall not release us or either of us from liability hereunder and we jointly and severally agree with the Lessor that in the event that at any time during the Term any rent payable under the within Lease Agreement shall at any time be in arrears for fourteen days after the same shall become payable, then and in any such case and as often as the same may happen we or any one of us shall pay the rent so arrear to the Lessor.
Dated the 2nd August 2011
| SIGNED for and on behalf of | ||
| DELCATH SYSTEMS, INC. | ||
| By: | /s/ EAMONN P. HOBBS | |
| EAMONN P. HOBBS | ||
| Authorised Signatory |
FIRST
SCHEDU
LE
Description of Demised Premises:-
ALL THAT AND THOSE
the premises situate at 19 Mervue Industrial Estate, Mervue, Galway and forming part the property comprised in Folio 4609L County Galway, shown outlined in red on the map attached.hereto and including:-
|
1.
|
the internal plaster surfaces and finishes of all structural or load bearing walls and columns therein or which enclose the same, but not any other part of such walls and columns;
|
|
2.
|
the entirety of all non-structural or non-load bearing walls and columns therein;
|
|
3.
|
the inner half severed medially of the internal non-load bearing walls (if any) that divide the same from other parts of the building;
|
|
4.
|
the floor finishes thereof and all carpets save that the lower limit of the Demised Premises shall not extend to anything below the floor finishes except that raised floors and the cavity below them shall be included;
|
|
5.
|
the ceiling finishes thereof, including all suspended ceilings (if any) and light fittings save that the upper limit of the Demised Premises shall not extend to anything above the ceiling finishes except that the cavity above any suspended ceilings shall be included;
|
|
6.
|
all glass in the windows and all doors, door furniture and door frames;
|
|
7.
|
all sanitary and hot and cold water apparatus and equipment therein and exclusively serving same and the radiators (if any) therein and all fire fighting equipment and hoses therein;
|
|
8.
|
all Conduits therein and exclusively serving the same.
|
BUT
EXCLUDING
all structural parts thereof.
SECOND SCHEDULE
Easements and Rights granted to the Lessee:
|
1.
|
Full right and liberty for the Lessee, its employees, servants and Licenses and invitees (in common with the Lessor and all other persons who now have or shall hereafter have the like right) for purposes of ingress and egress and delivery of goods to and from the Demised Premises from time to time and at all times to pass and repass over the estate roads within which the Demised Premises is located.
|
|
2.
|
The right (in common with the Lessor and lessees ofthe other parts of the Estate and all other persons entitled thereto) to the uninterrupted passage of water, soils and waste of all kinds, gas, electricity, telephone and other communication systems, telegraphic, fire fighting and fire prevention systems and equipment and other services through and from the gutters, gullies, pipes, drains, sewers, mains, watercourses, channels, trunks, ducts, flues, wires, cables and other conducting media ("Conduits") laid or to be laid on or over, under or through any other parts of the estate or any extension thereof or other contiguous or adjacent lands and premises ofthe Lessor.
|
|
3.
|
The right (in common with the Lessor and lessees of other parts of the estate and all other persons similarly entitled or authorised) to enter on such parts of the estate (upon giving due notice to any parties affected) for the purpose of repairing any Conduits used in connection with the Demised Premises.
|
|
4.
|
The right (in common with the Lessor and lessees of other parts of the estate and all other persons similarly entitled or authorised) during the Term to pass and re-pass over and use the common parts of the estate for the purpose for which each part is designated by the Lessor from time to time subject to any reasonable regulations governing the use of the common parts.
|
|
5.
|
The rights of support, light and air as are currently enjoyed by the Demised Premises at the date hereof from the remainder of the estate.
|
THIRD SCHEDULE
Easements and Rights reserved in favour of the Lessor:
|
1.
|
The air space above the Demised Premises.
|
|
2.
|
The full, free and uninterrupted passage and running of water, soil, gas, electricity, telephone and all other services or supply to and from the adjoining premises and for the benefit of the respective owners, Lessees or occupiers for the time being thereof through the Conduits which are now or may hereafter be in upon over or under the Demised Premises.
|
|
3.
|
Subject to observance the provisions of clause 1.5 of this Lease, the full and free right and liberty to enter upon the Demised Premises for the purpose of connecting, laying, inspecting, repairing, cleansing, maintaining, amending, altering replacing, relaying or renewing any Conduits and to erect, construct or lay in, under over or across the Demised Premises any sewers, drains, mains, pipes, wires, cables, holes, fixtures, or other works for the drainage of or for the supply of water, gas, electricity, telephone, heating, steam and other services to adjoining premises PROVIDED THAT the Lessor shall make good all damage or loss to the Lessee on the Demised Premises suffered as a result of the said works.
|
|
4.
|
Subject to observance the provisions of clause 1.5 of this Lease, the full and free right and liberty to enter upon the Demised Premises in order to build on or into any dividing boundary or party walls or fences on the Demised Premises, subject to all damage thereby occasioned being made good with all convenient speed by the person or persons exercising such right.
|
|
5.
|
Subject to observance the provisions of clause 1.5 of this Lease, the full and free right and liberty to enter upon the Demised Premises in order to execute works and repairs to the Demised Premises notwithstanding that the access to light and air for the time being enjoyed by the Demised Premises or any part thereof may thereby be temporarily interfered with PROVIDED HOWEVER that it is hereby expressly agreed that any limitation of the Lessee's right to light and air shall be only temporary and that the Lessor shall ensure that any restriction of the said light and air shall be as little as possible.
|
|
6.
|
Subject to observance the provisions of clause 1.5 of this Lease, the full and free right and liberty to enter upon the Demised Premises to view the state and conditions of and to repair and maintain the adjoining premises, if the works required to be done upon same shall not otherwise be reasonably practicable but subject to any damage thereby occasioned to the Demised Premises being made good at all convenient speed by the person exercising such right.
|
|
7.
|
Full and free right to build, rebuild upon or under, alter or develop or use in any manner including the erection of scaffolding on any adjoining premises owned by the Lessor or to use the same in any manner notwithstanding that any such building, rebuilding, alteration, development or user as aforesaid may temporarily affect or interfere with or diminish the light' coming to the Demised Premises PROVIDED HOWEVER it is hereby expressly agreed that the limitation of the Lessee's right to light and air shall be temporary only and the Lessor shall ensure that any restriction of the said light and air shall be as little as possible.
|
|
8.
|
The full and free right of support to the extent now enjoyed by the adjoining premises from the Demised Premises.
|
FOURTH SCHEDULE
Rent Review
The revised rent referred to in this Lease in respect of each the five year period commencing on the fifth anniversary of the Term Commencement Date may be agreed at any time between the Lessor and the Lessee or (in the absence of agreement) be determined not earlier than the fifth anniversary of the Term Commencement Date (the "Review Date") by applying the provisions set out below.
1.
Definitions
In this Schedule, the following expressions shall have the following meanings:
|
1.1
|
''Basic
Rent",
the rent payable by the Lessee immediately prior to the Review Date;
|
|
1.2
|
"Central
Statistics
Office",
the Central Statistics Office, Ireland or other government department or successor or replacement office, state entity or other entity upon which the duties in connection with the Consumer Price Index shall have devolved from time to time;
|
|
1.3
|
"Consumer
Price
Index",
the Consumer Price Index (all items) published by Central
Statistics Office;
|
|
1.4
|
"President",
the President for the time being of the Institute of Chartered Accountants in the Republic of Ireland and includes the duly appointed deputy of the President or any person authorised by the President to make appointments on his behalf;
|
2.
Rent
Review
|
2.1
|
The rent reserved by this Lease shall be reviewed at the Review Date in accordance with the provisions of this Schedule and, from and including the Review Date, the reviewed rent shall equal the revised rent as determined in accordance with the terms of this Schedule.
|
|
2.2
|
At the Review Date, the Basic Rent shall be adjusted (as more particularly described in Clause 2.3 below) in line with the changes in the Consumer Price Index between:
|
|
(a)
|
the date from which the Basic Rent was reviewed being the preceding Review Date or if there was none the Term Commencement Date;
|
|
(b)
|
Review Date as provided for in Clause 2.3 below.
|
Such period hereinafter referred to as the "Review Period".
|
2.3
|
Calculation of the revised rent in accordance with the changes in the Consumer Price· Index referred in Clause 2.2 shall be calculated by multiplying the Basic Rent by the "numerical fraction" applicable at the Review Date. The numerical fraction applicable at the Review Date shall be the fraction which shall have as its denominator the index figure which shall have been officially published by the Central Statistics Office for the most recent date or period before the date from which the Basic Rent was reviewed being the preceding Review Date or if there was none the Term Commencement Date for which an index figure was published by the Central Statistics Office for the Consumer Price Index and as its numerator the index figure which shall have been so officially published for the most recent date or period before the Review Date for which an index figure was published by the Central Statistics Office.
|
For the avoidance of doubt, the formula for calculating the amount of the revised rent on each Review Date for the purposes of Clause 2.3 of this Schedule shall be as follows:
AxB/C
Where
A
=
the Basic Rent;
B
=
the index figure which shall have been officially published by the Central Statistics Offices as the index figure for the Consumer Price Index for the most recent date or period before the Review Date for which an index figure is published.
C
=
the index figure which shall have been officially published by the Central Statistics Offices as the index figure for the Consumer Price Index for the most recent date or period before the date from which the Basic Rent was reviewed being the preceding Rent Review date or if there was none the Term
Commencement Date for which an index figure was published.
|
3.
|
Agreement or Determination of the Revised Rent
|
|
3.1
|
The Lessor shall notifY the Lessee of its calculation of the revised rent no later than 3 months after each Review Date. In the event that the Lessee does not agree with the Lessor's calculation of the revised rent, either party may, by notice in writing to the other, require that the revised rent using the formula herein contained be determined by an independent expert such revised rent to be a generally respected measure of the general change in retail prices. The independent expert shall be a Chartered Accountant of at least seven years standing. In default of agreement between the Lessor and the Lessee on the appointment of the Chartered Accountant to act as independent expert, the Chartered Accountant shall be appointed by the President on the written application of either party.
|
|
3.2
|
The independent expert for the purposes of all matters in dispute arising under this clause shall (a) act as an expert and not an arbitrator and (b) shall permit oral submissions and (if he deems appropriate) written submissions to be made by the parties hereto and by their advisors and his decision shall be final and binding on the parties. The costs of the independent expert shall be borne by the parties in such manner as the independent expert shall determine.
|
|
4.
|
Interim payments pending determination
|
|
|
In
the event that by the Review Date the amount of the reviewed rent has not been agreed or determined as aforesaid (the date of agreement or determination being herein called thp. Determination Date) then, in respect of the period (herein called the Interim Period) beginning with the Review Date and ending on the Determination Date, the Lessee shall pay to the Lessor rent at the yearly rate payable immediately before the Review Date and on the Determination Date, the Lessee shall pay to the Lessor, on demand as arrears of rent or the Lessor shall pay to the Lessee as the case may be, the amount (if any) by which the reviewed rent exceeds or is lower than the rent actually paid during the Interim Period (apportioned on
a daily basis) together with interest thereon at the Base Rate from the Review Date to the date of actual payment.
|
|
5.
|
Rent Restrictions
|
|
|
In
the event of the Lessor being prevented or prohibited in whole or in part from exercising its rights under this clause and/or reviewing the Rent on any of the Review Dates by reason of any legislation, government order or decree or regulations or howsoever then the date at which the review would otherwise have taken effect shall be deemed to be extended to permit and require such review to take place on the first date thereafter upon which such right may be exercised and/or obtained in whole or in part and when in part on so many occasions as shall be necessary to revise the Rent and if there shall be a partial prevention only there shall be a further review on the first date or dates as aforesaid notwithstanding the Rent may have been increased or decreased in part on or since the date of review but in no instance shall the increase or decreased in Rent be dated back to exceed the statutory controls on increases or decreases of Rent laid down by law.
|
|
6.
|
Disputes
|
|
|
If
it becomes impossible to calculate the Rent for any Review Date by reference to the Consumer Price Index because of any change in the methods used to compile the Consumer Price Index after the date of this Lease or for any other reason whatever, of if any dispute or question whatever arises between the parties as to the construction or effect of this schedule, then the Rent for that review period or the disputed matter is to be determined by the independent expert in accordance with Clause 3 above. The independent expert is to have full power to determine, on such dates as he consider appropriate, what the increases or decreases in the Consumer Price Index would have been had it continued on the basis assumed for the operation of the rent review and in view of the information assumed to be available for it and the independent expert shall obtain all relevant information from the Central Statistic Office.
|
|
7.
|
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 Lessor or its solicitors and thereupon shall be signed by or on behalf of the Lessor and the Lessee shall be responsible for and shall pay to the Lessor 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.
|
|
8.
|
Time not of the Essence
|
For the purpose of this Schedule, time shall not be of the essence.
IN
WITNESS
WHEREOF
the Lessor and the Lessee have set their hands and affixed their Seals all the day and date first herein written.
|
SIGNED
and
DELIVERED
as a Deed
|
|||
|
By
THE LESSORS
|
|||
|
In the presence of:-
|
|||
|
/s/ SEAN KEENAN
|
|||
|
SEAN KEENAN
|
|||
|
illegible
|
|||
|
/s/ EAMON REAY
|
|||
|
EAMON REAY
|
|||
|
/s/ TOM HOGAN
|
|||
|
TOM HOGAN
|
|||
|
/s/ EUGENE DEVANEY
|
|||
|
EUGENE DEVANEY
|
|||
|
PRESENT
when the Commons Seal
|
|||
|
of
THE LESSEE
was affixed hereto
|
|||
|
And this Deed was delivered:
|
|||
|
/s/ Peter J. Graham
|
|||
|
DIRECTOR
|
|||
|
/s/ EMMA HEDLEY
|
|||
|
For and on Behalf of Bradwell United
|
|||
|
COMPANY SECRETARY
|
|
Delcath Systems
Unit 19
IDA Business
&
Technology Park
Mervue
Galway
Ireland.
|
Date:
|
Wednesday, 29 June 2011
|
Re:
CONDITIONAL SURVEY OF PROPERTY AT
UNIT 19, IDA BUSINESS
&
TECHNOLOGY PARK
,
MERVUE, GALWAY, IRELAND
DELCATH SYSTEMS INC:
Our Ref. Flles/700/DS/...
Instructions, Limitations and General Preamble:
We
report that we carried out a survey at the above property on Wednesday, 29 June 2011, as per emailed instructions and our standard conditions of engagement.
This
report shall
be
for the private and confidential use of our client for whom the report is undertaken and must not be reproduced in whole or in part or relied upon by a third party without the agreement of the architect.
We will not be responsible to third parties who obtain, by any means, a copy of this report and act upon the information contained therein.
Whilst every care has been taken in completing our survey and report, the investigations have been non destructive in nature and therefore we are unable to report upon matters that are concealed at the time of the inspection, and the following assumptions have had to be made:
That
high alumna cement (HAC), concrete or calcium chloride additive or other deleterious materials or techniques were not used when the original property or any subsequent additions were built.
That any wall ties that exist are not perished.
That your solicitor's or regal advisor's search will prove that the property is not subject to any unusual covenants, Local Authority restrictions, or onerous restrictions imposed by others, encumbrances or outgoings and that good title can be shown.
That future inspections of any hidden part of the structure which have not been inspected during this survey will not reveal material defects, or cause the surveyor to alter materially the conclusions drawn at the end of this report (if applicable)
.
We have not inspected woodwork or other parts of the structure which are not uncovered
,
unexposed or are inaccessible and we are therefore unable to report that the property is free from defect; however
,
we have done our best to draw conclusions about the construction from surface evidence visible at the time of our inspection
.
We have not inspected the wall cavities or wall ties. It was not possible to fully examine the floors in areas which were tiled
.
Corners of carpets were lifted where possible and isolated areas examined
.
No pressure smoke or other tests have been applied to the drains.
The survey commenced at approximately 10:00 a.m. The earty weather conditions were sunny, dry and calm with some heavy showers later in the day. References to left and right are made standing facing the front of the building.
This report should
be
read in conjunction with our photographic record: DSCF2959- DSCF3063 [204MB].
|
Access Building Design Ltd.
|
Registered in Ireland No. 301972
|
VAT No. E63219721
|
Directors: Kevin Hough
|
Dlp. Arch. Ech. Eleanor Hough MSc
|
The
Property
in
General
:
The property is situated in the IDA Business and Technology Park between the Monivea Road and the Tuam Road
.
Unit-19, this building, was constructed i
n
the late 1960's and early 1970's as part of a series of starter industrial units
.
It is the last in a series of nine similar units which have housed companies such as Digital, Nortel and Avaya. Abbott Vascular Ireland were the most recent tenants of this building. They
carried out extensive refurbishment throughout installing clean rooms, gowning rooms, canteen and other
ancillary facilities. There is a small landscaped bed along the width of the building in front of which there
are eight dedicated parking spaces. The dedicated parking and drop-off zone to the rear of the building has been cordoned off with galvanized steel fencing.
The overall area of the building and yards is roughly 1,800m
2
[19,370sq.ft].
The site itself and surrounding lands are level. The front of the building faces north east.
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Accommodation:
Entrance Lobby and Reception
Canteen
Toilet Facilities
Cleaner’s Store
Comms Room
Locker Room
Gowning Room: Class 100,000
Large Clean Room: Class 100,000
Large Transfer Room: Class 100,000
Small Clean Room: Class 100,000
Small Transfer Room: Class 100,000
Laboratory
Service Corridor – Fire Protected
Warehouse
Shipping Offices
Plant Room
Various Small Plant and Services Rooms
Shipping/Receiving Area
Boiler Room
Yard and Oil Storage Tank
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1.
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Roofs:
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Main
Roof
&
the
Front-Offices
Fla
t
Roof
The externalflat roofs and pitched sections of the northlights are finished in Trocal or a similar high-performance membrane and appear to have been Installed in accordance
with
the manufacturer's instructions. The Trocal is laid on an · isolating membrane on high density insulation on a profiled metal deck
.
Structurally, the roof is formed with steel lattice girders which crank up at
45°
in the northlights and together with the
flat
sections provide a self-supporting clear span of22.45m (73'7"}
at
roughly 5.0m (16'5") above finished floor level. The lower level flat roof deck to the front of the building is supported
on steel joists spanning from the front band beam to the corridor wall.
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Main
Roof
Northlights
:The northlights to the main roof are pitched at
45°.
They are Georgian wire aluminium-framed single-glazed units 21.4m wide by 1.8m high. Upstands and flashings appear to be in order and there's no apparent evidence of water ingress.
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Front
Offices
Flat
Roof
Rooflights
:This external flat roof has a series of Georgian-wire aluminium-framed glazed rooflights installed over the toilet block area
.
Upstands and flashings appear to be in order and there's no apparent evidence of water ingress at present. However, the suspended ceiling tiles beneath do have signs of staining due to roof leaks in this area at some stage.
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Pitched
Roof
to
Shipping
Area
:This roof is a single-skin profiled metaldeck with similar fascia and barge detailing
. It
sits on a steel mono-pitch frame with purlins and joists supports. There is a lining of thin reflective insulated material fixed to the soffite over this area. Possibly to
prevent condensation. This yard area is open to
the
elements at one side and there are swallows nesting in the roof space.
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Access Building Design Ltd.
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Registered in Ireland No. 301972
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VAT No. E63219721
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Directors: Kevin Hough
|
Dlp. Arch. Ech. Eleanor Hough MSc
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"Condition: The roofs in general have been well maintained and although there are many penetrations for services there was no evidence of water ingress on the
day
of the survey. Galway has recently experienced a prolonged period of rainfall. There is some evidence of ponding on the flat roof sections but the ramwater outlets appear to be free from blockages and debris.The fall to the roof surfaces may not be adequate to disperse the water. There are patches of paint coming off the soffit (underside) for the metal decking
.
This
roof
construction would not meet with current Building Regulation standards. However, the air and atmosphere
within the building was reasonably pleasant and there was
no
sign of musty smells associated
with damp conditions.
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2.
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Walls:
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External
Walls
:External masonry walls are finished in concrete brickwork
.
There is
a
plastered
450
x
450 reinforced concrete band beam above window level along the front elevation. This is capped with profiled steel flashing and laid over the roofing membrane
.
The band beam is
supported by
230
x
230
reinforced concrete columns at 3.8m crs.
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Beneath the beam there are large sections of double-glazed aluminium framed windows which sit on the concrete floor slab. The lower sections of these windows are filled with lightweight Insulated panels which are painted. Other external walls to the rear and one side are either concrete brickwork or rendered concrete blockwork.The rear walls have been patched up in places where there were service ducts penetrating.
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Condition
: This type of construction would no longer
be
acceptable as it doesn't comply with the Building Regulations
.
Structurally however, there was no evidence of subsidence or cracking in any of these elements. I checked the reveals with a moisture meter and results were negative. There are no signs
of
tidemarks or rising damp in the structure.
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Internal
Walls
:The compartment walls separating this unit from the adjoining buildings are constructed of220mm fairfaced blockwork with 300 x
230
reinforced concrete columns at
7.62m
crs.These
walls
for
the
most
part
have
been
lined
with
modular
steel
panels
similar
to
those
in
the
clean
rooms
.
The
dry-linings
to
the
front
office
area,
which
has
been
kitted
out
as
a
canteen are dry-lined with plasterboard and skimmed. There are still some fairfaced block surfaces evident throughout the building; at the entrance and on the corridor to
the
toilet facilities and in the receiving area. Most of the other Internal walls
to
the structure I.e. clean rooms, ancillary areas and circulation corridors are constructed with 1160mm wide modular, insulated demountable steel-panels. They are roughly 80mm thick, fire-rated, with their
own
dedicated windows and doors
.
The
panels are finished in polyester powder-coated galvanized steel plate coloured "Iceberg white• (near
RAL
9010) and manufactured by "Dagard".
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Condition
:The walls and ceilings to the clean rooms have been installed to a high standard to meet with the necessary regulations for this purpose:Class 100,000
.
The fairfaced masonry to the corridors and receiving area can be easily dry-lined if necessary. This would involve
moving some of the electricaland mechanical boards. Structurally, there is
no
evidence of
subsidence or cracking in any of these elements and walls tested plumb with a spirit level throughout.
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3.
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Floors:
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The floor is constructed in 300mm thick reinforced concrete. It is laid In bays with expansion joints between each bay
.
With the exception of
the
warehouse, the floors throughout are finished in Mipolam 500 Esprit 5001 "Ice Crystal" with matching caved skirtings. The floor
to
the warehouse is painted in an epoxy resin.
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Condition
: The floors are generally in good condition. The resin coating In the warehouse Is showing signs of wear from heavy trafficking and cracking along the expansion joints. Otherwise, there is no evidence of subsidence or structural cracking.
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4.
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Ceilings:
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The ceiling grid in
the
clean rooms and ancillary areas is 1200 x 600 with washable moisture proof tiles manufactured by Biogard. The tiles, light units, air-conditioning diffusers and grid are all bonded together to form an impermeable surface.
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The new ceiling grid in the canteen is 600 x 600 with standard acoustic tiles.
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The
old ceiling grid in the toilets and comms room is 600 x 600 with standard moisture resistant tiles.
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Access Building Design Ltd.
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Registered in Ireland No. 301972
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VAT No. E63219721
|
Directors: Kevin Hough
|
Dlp. Arch. Ech. Eleanor Hough MSc
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Con
di
tion
:The ceilings throughout are in good condition except in the toilets, comms room and cleaner's store where they should be replaced with new.
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5.
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Skirtings:
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The old timber skirting boards, when tested With a moisture meter showed low levels of moisture throughout and are
in
good condition generally.
All
others are either coated metalor vinyl coved skirtings and are
in
good condition.
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6.
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Components:
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Windows and Doors to Front Elevation:
These are constructed in aluminium frame, double
glazed with a void of less than 9mm. They are very poor quality and should be replaced with modern fenestration. This would address heat loss Issues, security problems and would also be more visually attractive
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Emergency Exits:
The timber emergency exit doors are in reasonable condition but could do with being sanded and repainted.
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Roller-Shutter Doors:
The old externalroller-shutter door to the delivery bay was locked shut on the day of inspection so therefore I cannot comment on its operation except to say I was informed that It works properly. The sectional roller door to the warehouse is a recent installation and is working satisfactorily.
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Service Compartments:
The timber doors to the service cornpartments are in reasonable condition.These are all painted blue with identifying signage to each one. Ironmongery is in satisfactory condition.
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Other Do
ors:
The doors to the toilet facilities are timber semi-solid core doors. They are of poor
quality. Note: The door to the disabled WC and lobby does not meet the current Building
Regulation standard width necessary for wheelchair access. Ideally this door should be directly on to a corridor and not through a lobby.
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7.
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Plumbing:
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Plumbing
in
general
:Plumbing looks to have been recently overhauled and in general appears satisfactory. This should however be thoroughly checked by a qualified certified plumber.
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8.
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Saninitary
Ware:
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Toilet Facilities:
There are four cubicles and four wash hand basins in the female wc's. There are three urinals, two cubicles and three wash hand basins In the male wc's. There is
one
disabled access we
.
There is a slop sink in the cleaner's store.
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These facilities are dated and in need of complete overhaul.
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9.
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Electrical
&
Mechanical:
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Both of these installations have recently been reinstated to a high standard. Some of the old boards are still insitu however and should be removed to avoid any confusion.
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10.
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Sprinkler:
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There is a sprinkler system in this building
.
It is no longer in use and has been disconnected from the water supply. There are fire hydrants to the front and rear of the building in the event of an emergency.
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11.
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Drainage:
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Surface
Water
: The rainwater outlets to all the roof areas are in satisfactory condition.There is a surface water drain running from the warehouse to the front of the building
.
It is accessible
via sealed manholes in the concrete floor. Some of these are covered over in the clean rooms etc.The road gulley along the width of the property at the rear is completely blocked but there Is no sign of ponding.
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Foul
Sewer
: There are three internal sealed manholes in the main corridor just outside the toilet facilities. There was no evidence of foul smells and the soil vent pipes are satisfactory.
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I did not attempt to lift any of the manholes as this would involve breaking
the
seals. As there was no evidence of foul smells in the vicinity I would be confident that this aspect of the
building is currently in satisfactory condition. Discharge from the new sanitary appliances in the gowning rooms is pumped from sumps via an overhead route to the external drainage.
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Access Building Design Ltd.
|
Registered in Ireland No. 301972
|
VAT No. E63219721
|
Directors: Kevin Hough
|
Dlp. Arch. Ech. Eleanor Hough MSc
|
Page 4
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12.
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Boiler:
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It appears to be a reasonably new model and in working order.
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13.
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Landscaping:
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The landscaped bed to the front of the building is in poor condition and in need of serious maintenance.
I
would advise that this feature be removed completely and replaced with something new and fresh to enhance the building's appearance.
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Conclusions
:
Even though this building is roughly
40
years old it has been reasonably well maintained
.
It currently has a Building Energy Rating (BER) of D1 which is remarkable for its age and type of construction. The recent upgrades to the property are of a high standard and the roof finishes are far
superior
to
those of the adjoining units.
| Signed: | /s/ Kevin Hough | Date : 30/06/2011 | |
| Kevin Hough | |||
| For and on behalf of | |||
| Access Building Design |
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Access Building Design Ltd.
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Registered in Ireland No. 301972
|
VAT No. E63219721
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Directors: Kevin Hough
|
Dlp. Arch. Ech. Eleanor Hough MSc
|
Dated 2nd August 2011
SEAN KEENAN, EAMON REAY, TOM HOGAN AND EUGENE DEVANEY
Lessor
DELCATH SYSTEMS LIMITED
Lessee
LEASE
19 Mervue Industrial Estate
Mervue
Galway
LEWIS C. DOYLE
&
CO.
Solicitors
Augustine Court
St. Augustine Street
GALWAY.
REF: NF. 59954(M268.2)
(AC#4196077_8.DOC)
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