EXHIBIT-10.44
DATED OCTOBER 9, 1997
LASMO (ULX) LIMITED
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ACC LONG DISTANCE U.K. LIMITED
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ACC CORP.
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AGREEMENT
FOR LEASE RELATING TO
Premises situate on the Ground to Fourth Floors
And 45 car parking spaces
Of the Building known as
Adelaide House
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Tel: ▇▇▇▇ ▇▇▇ ▇▇▇▇
PARTICULARS
1. DATE 1997
2. LANDLORD LASMO (ULX) LIMITED whose registered
office is at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ (Company Registration Number 936223).
3. TENANT ACC LONG DISTANCE U.K. LIMITED whose
registered office is at ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇ ▇▇▇ (Company
Registration Number 2671855).
4. SURETY ACC CORP (a company incorporated in
Delaware USA) of ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇.
5. PREMISES Premises situate on the Ground to
Fourth Floors and 45 car parking spaces
of the Building known as Adelaide House,
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇ as
described in the Lease.
6. COMPLETION DATE As defined in clause 1.9.
7. LEASE An underlease of the Premises in
the form of the draft attached to this
Agreement.
8. SUPERIOR LEASE A Lease dated 17 March 1989 and made
between Markheath Properties Limited (1)
and the Landlord (under its former name,
Ultramar Exploration Limited) (2) and
Ultramar PLC (3).
9. LANDLORD'S London Borough of Hounslow Title
REGISTERED TITLE Number:AGL8895
Class of Title: Absolute
10. DISCLOSED DOCUMENTS The documents referred to in the First
Schedule to this Agreement.
11. LANDLORD'S SOLICITORS Nabarro ▇▇▇▇▇▇▇▇▇
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Ref: J1/AAS/L1718:7
12. TENANT'S SOLICITORS ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ Ref: SJJS/ER/JC/ACCB-10 52854
13. INTEREST Interest at the rate of four per cent per
annum above Midland Bank PLC Base
Rate from time to time in force.
14. LANDLORD'S SURVEYORS means ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Co of
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ or
such other firm or person as the Landlord
may from time to time appoint to perform
the functions of its surveyor under this
Agreement.
15. TENANT'S APPROVED means the plans elevations sections and
DRAWINGS specification of the Tenant's Works
approved by the Landlord's Surveyors
pursuant to clause 11.
16. TENANT'S WORKS means the works of which brief details
are set out in the Second Schedule to
this Agreement and in more detail shown
in the Tenant's Approved Drawings.
CONTENTS
Clause Subject matter Page
1. Interpretation 1
2. Agreement for Lease 2
3. Completion of the Lease 3
4. Vacant Possession 3
5. Landlord's Title 3
6. Matters Affecting the Premises 4
7. National Conditions 4
8. Acknowledgments 5
9. Landlord's Consent 6
10. Application for Exclusion Order 6
11. Approval of Tenant's Works 7
12. Carrying out the Tenant's Works 7
13. Inspection and Rectification of the Tenant's Works 12
14. Completion and Approval of the Tenant's Works 13
15. Status of Tenant Pending Completion 14
16. Commencement of License Fees 14
17. Further Provisions Relating to Completion of the Lease 15
18. ▇▇▇ ▇▇
▇▇. Default of Tenant 17
20. Arbitration 19
21. Non Assignment 20
22. Guarantee 20
23. No Publicity 21
24. Jurisdiction 21
25. Non-Merger 21
26. Notices 21
27. Rental Rebate 22
28. Right of First Refusal and Option to Lease in Relation
to Sixth and Seventh Floors 24
29. Landlord's Works to Create Office on Ground Floor 30
SCHEDULE 1 DISCLOSED DOCUMENTS
SCHEDULE 2 TENANT'S WORKS
1. INTERPRETATION
1.1 The Particulars constitute part of this Agreement and the expressions
contained in the Particulars are incorporated as definitions.
1.2 The National Conditions of Sale (Twentieth Edition) as set out on pages
2 and 3 of the printed form of contract published by the Solicitors'
Law Stationery Society Plc ("National Conditions") (except as varied by
or inconsistent with this Agreement) are incorporated.
1.3 The clause headings in this Agreement are for ease of reference only
and are not to be used for the purposes of construing this Agreement.
1.4 Obligations undertaken by more than one person are joint and several
obligations.
1.5 This Agreement may only be varied in writing signed by or on behalf of
the parties to it.
1.6 Where the word "today" is used this means the date of this Agreement as
written above.
1.7 "Superior Landlord" means the person who at the relevant time is
entitled to receive the rent under the Superior Lease and includes the
person who at the relevant time is entitled to receive the rent under
any lease superior to the Superior Lease.
1.8 "Conditions" means:
1.8.1 The Consent being issued in accordance with clause 9; and
1.8.2 The Court Order being obtained in accordance with clause 10; and
1.8.3 The Tenant procuring for the benefit of the Landlord an opinion of
Counsel qualified to practice in the State of Delaware confirming
that this Agreement and also the Lease when granted have been duly
and properly executed by the Surety and will be
enforceable against and binding upon the Surety in accordance with
the Law of Delaware and the constitution of the Surety Such
opinion shall be in a form reasonably approved by the Landlord
(such approval not to be unreasonably withheld) and the Tenant
shall use all reasonable endeavors to procure such an opinion.
1.9 "Completion Date" means five working days after the date upon which all
of the Conditions have been satisfied.
1.10 Words and expressions used in this Agreement and not defined herein
shall bear the same meaning ascribed to them in the Lease.
2. AGREEMENT FOR LEASE
2.1 Subject to satisfaction of the Conditions and the provisions of this
Agreement the Landlord will grant and the Tenant and the Surety will
accept the Lease on the Completion Date.
2.2 If either of the conditions set out in the clause 1.8.1 or 1.8.2 hereof
have not been satisfied within three months after today's date then at
any time afterwards (but not after such conditions have been fulfilled)
either party (not itself being in breach of its obligations hereunder)
may rescind this Agreement on the terms set out in National Condition
10(2) and if the condition set out in clause 1.8.3 hereof has not been
satisfied within three months after today's date then at any time
afterwards (but not after such condition has been satisfied) the
Landlord may rescind this Agreement on the terms set out in National
Condition 10(2).
3. COMPLETION OF THE LEASE
3.1 The Lease will be completed before 1 pm on the Completion Date.
Completion will take place at the Landlord's Solicitors' offices or
where they reasonably require. If the Landlord's Solicitors agree to
complete by post it will be at the Tenant's risk.
3.2 Any monies due to the Landlord on completion will be paid by direct
credit transfer (which the Landlord's Solicitors must receive as
cleared funds by 1 pm on the day of completion) for the credit of a
bank account of a London Clearing Bank specified by the Landlord's
Solicitors or by any other method reasonably requested by the
Landlord's Solicitors.
3.3 The Lease will be prepared in original and counterpart and the original
will be executed by the Landlord and the counterpart will be executed
by the Tenant and the Surety. The executed counterpart Lease will be
handed over to the Landlord's Solicitors on completion.
3.4 The provisions of clause 17 shall apply.
4. VACANT POSSESSION
Vacant possession of the Premises will be given on satisfaction of
the Conditions.
5. LANDLORD'S TITLE
Title to the Premises will comprise office copies of the filed plan and
entries appearing on the Registered Title which the Tenant's Solicitors
are authorized to inspect.
6. MATTERS AFFECTING THE PREMISES
The Lease will be granted subject to and with the benefit of all and any
of the following in existence before the actual time of completion:
6.1 the matters contained or referred to in the entries appearing on the
Registered Title save for any financial charges;
6.2 all matters capable of registration as Local Land Charges or otherwise
whether registered or not;
6.3 all notices served and proposals requirements or agreements made by or
(as the case may be) with any competent authority or arising under
statute;
6.4 all matters in the nature of overriding interests as set out in section
70(1) of the Land Registration Act 1925 as amended; and
6.5 all matters disclosed or which might reasonably be expected to be
disclosed by searches and enquiries made by the Tenant or which a
prudent tenant ought to make.
7. NATIONAL CONDITIONS
The National Conditions are varied as follows:
7.1 "Working Day" means a day on which Clearing Banks in the City of London
are (or would be but for a strike, lock-out or other stoppage affecting
a particular bank or banks generally) open during banking hours.
7.2 National Conditions 5(3) will not apply.
7.3 Proviso (I) to National Condition 5(5) is deleted and the following
is substituted:
"(i) for the purposes of conditions 6, 7 and 8 only, if completion
takes place later than 1 pm then the date of actual completion
will be deemed to be the next Working Day after the day on which
completion has taken place".
7.4 National Condition 11(5) will not apply.
7.5 National Conditions 15(2), 15(3), 15(4), 21(2) and 21(3) will not
apply.
7.6 The Landlord will be deemed ready and willing to complete for the
purpose of National Condition 22 even though any financial charge still
affects the Premises at the time of service of a notice.
8. ACKNOWLEDGEMENTS
The Tenant confirms that:
8.1 it has inspected the Premises;
8.2 it has not been induced to enter into this Agreement by or in reliance
upon any oral or written statement by the Landlord or anyone else on
its behalf, except the Landlord's Solicitors' written replies to the
written enquiries made by the Tenant's Solicitors prior to the date
hereof; and
8.3 no error or omission will annul the grant of the Lease or entitle the
Tenant to compensation; and
8.4 title to the Premises has been deduced in full and copies of the
Disclosed Documents and the Registered Title have been supplied to the
Tenant's Solicitors. The Tenant will be deemed to accept the Lease with
full knowledge of the Landlord's title to the Premises and the matters
subject to which the Lease is granted and will raise no objections or
requisitions about it.
9. LANDLORD'S CONSENT
9.1 The Landlord will use all reasonable endeavours to obtain the formal
consent of the Superior Landlord to the grant of the Lease to the
tenant (the "Consent").
9.2 The Tenant and the Surety will forthwith supply any information and
references required by the Superior Landlord and will:
9.2.1 enter into any reasonable covenants with the Superior Landlord
which it may be entitled to require under the terms of the
Superior Lease; and
9.2.2 provide such reasonable guarantees as may be required by the
Superior Landlord for the performance of the Tenant's and the
Surety's obligations under clause 9.2.1.
10. APPLICATION FOR EXCLUSION ORDER
10.1 Immediately following exchange of this Agreement, the Landlord shall
lodge an originating application signed by the Landlord's Solicitors
and the Tenant's Solicitors with the Mayors & City of London Court and
the Tenant shall use all reasonable endeavours to assist the Landlord
in obtaining a Court Order (defined below) as soon as possible after
the date hereof.
10.2 For the purpose of this Agreement, the expression "Court Order" shall
mean an order of the Court under the provisions of section 38(4) of the
Landlord and ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ (as amended by section 5 of the Law of
Property Act 1969) authorizing the exclusion of sections 24-28
inclusive of the Landlord and ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ in relation to the Lease.
11. APPROVAL OF THE TENANT'S WORKS
11.1 The Tenant shall within two weeks after the date of this Agreement,
submit to the Landlord for approval plans elevations sections a
programme and a full specification of the Tenant's Works prepared by
the Tenant at its own expense.
11.2 The Tenant shall also supply:
11.2.1 such other information relating to the Tenant's Works as the
Landlord's Surveyors may reasonably require; and
11.2.2 copies of all approvals consents permissions and licenses of every
competent authority or other person which are appropriate to
enable the Tenant lawfully to carry out the Tenant's Works.
11.3 The Tenant's Works shall not subsequently be varied without the
Landlord's and the Superior Landlord's prior written approval which
shall not on the part of the Landlord be unreasonably withheld or
delayed and, if given, the Tenant's Approved Drawings shall be amended
as necessary.
11.4 The Landlord will use all reasonable endeavours to assist the Tenant in
obtaining the consent of the Superior Landlord and the Superior
Landlord's surveyor to the Tenant's Works.
12. CARRYING OUT THE TENANT'S WORKS
12.1 After receiving written confirmation from the Landlord or the
Landlord's Surveyors that the material submitted under clause 11.1 has
been approved by both the Landlord and the Superior Landlord (which
written confirmation may be dealt with by way of a formal
license for alterations or otherwise), the Tenant shall (but only after
giving written notice to the Landlord's Surveyors) within four weeks
(save for force majeure) start carrying out the Tenant's Works and
shall then proceed with the Tenant's Works and complete them as
quickly as reasonably possible.
12.2 The Tenant's Works shall be carried out:
12.2.1 in accordance with the Tenant's Approved Drawings;
12.2.2 in accordance with the terms of all appropriate approvals consents
permissions and licenses and otherwise in compliance with the
requirements of all competent authorities;
12.2.3 in compliance with all relevant legislation;
12.2.4 in a good and workmanlike manner and with materials and substances
which accord with the best current building practice; and
12.2.5 to the reasonable satisfaction both of the Landlord's Surveyors
and any surveyor appointed by the Superior Landlord.
12.2.6 the Tenant shall pay the reasonable professional fees and expenses
of the Superior Landlord in connection with the approval of the
Tenant's Works and all matters arising under clauses 11-14
(inclusive) of this Agreement, such payment(s) to be made within
seven days of written demand.
12.3 In the course of carrying out the Tenant's Works, the Tenant shall:
12.3.1 as far as shall be reasonably practicable not interfere with any
works being carried out anywhere else in the vicinity of the
Premises or the Building;
12.3.2 cause as little damage injury nuisance or inconvenience as
possible to the Landlord or other owner or occupier of other
property in the vicinity of the Premises or the Building;
12.3.3 as far as shall be reasonably practicable not (without the consent
of the Landlord) store any materials machinery or equipment
elsewhere than inside the Premises;
12.3.4 not impede or interfere with the use by anyone else of other
property near the Premises;
12.3.5 maintain such supports hoardings and coverings as may be
reasonably necessary or which either the Landlord's Surveyors or
any surveyor appointed by the Superior landlord may reasonably
require so as to prevent damage injury nuisance or
inconvenience arising from the Tenant's Works or to preserve the
amenities of other property near the Premises;
12.3.6 maintain, through its contractor or otherwise, such insurances
with such level of cover as the Landlord and/or the Superior
Landlord may approve (such approval on the part of the Landlord
not to be unreasonably withheld or delayed) in respect of the
Tenant's Works and all materials or goods delivered for the
purposes of the Tenant's Works, and in respect of all liability of
the Tenant and the Landlord and the Superior Landlord arising from
the carrying out of the Tenant's Works;
12.3.7 comply with any lawful and proper requirements of the Superior
Landlord's insurers of the Premises which shall be notified in
writing to the Tenant and pay any increased or other premium which
those insurers may require in respect of the Premises, the
Building or any other property as a result of the carrying out of
the Tenant's Works;
12.3.8 not allow the Premises, or any hoarding scaffolding or other
materials about the Premises, to be used for advertising, except
for notices approved by the Landlord such approval not to be
unreasonably withheld or delayed and (to the extent required under
the terms of the Superior Lease) the Superior Landlord advertising
the names of the Tenant and of its contractors or as may be
required by statute bye-law or other legislation;
12.3.9 comply with any reasonably regulations made by the Landlord's
Surveyors or any surveyor appointed by the Superior Landlord from
time to time governing the carrying out of the Tenant's Works
including (but not limited to) permitted times and means of access
to the Premises and the delivery of materials and equipment which
may be notified in writing to the Tenant; and
12.3.10 allow the Landlord's contractors access at all reasonable times to
the Premises for the purpose of carrying out any remedial or other
works to the Premises or to any other property without liability
to compensate the Tenant for any delay or obstruction to the
Tenant's Works save that where there shall be any material delay
or obstruction to the completion of the Tenant's Works which is
directly attributable to the Landlord exercising its right of
access to the Premises under this clause 12.3.10 the Tenant's
liability to pay the rent reserved by the lease shall be postponed
in the case of the
First Initial Rent and the Second Initial Rent for such period as
shall be equal to the length of delay so caused by the Landlord
and the period of any such delay shall be agreed between the
Landlord and the Tenant or in default of agreement shall be
determined by the Expert (as hereinafter defined) in accordance
with clause 20.
12.3.11 It is anticipated that works to be carried out by the Landlord at
the Building may at least in part be carried out at the same time
as the Tenant's Works and accordingly the Landlord and the Tenant
agree to act reasonably towards each other and to cooperate as far
as practicable in the programming and methods of effecting their
respective works and the use of common areas and facilities so
that such respective works can both be carried out as quickly as
possible and without the works of one party seriously impeding or
interfering with the works of the other.
12.4 The Tenant shall fully indemnify the Landlord and the Superior landlord
against damage claims costs and expenses arising out of:
12.4.1 the state and condition of the premises and/or the Building during
and after the carrying out of the Tenant's Works as a result of
the carrying out of the Tenant's Works;
12.4.2 the carrying out of the Tenant's Works;
12.4.3 any entry on, or occupation of, the Premises by the Tenant before
completion of the Lease; or
12.4.4 any breach of or non-compliance by the Tenant with the terms of
this Agreement.
12.5 Neither the Landlord nor the Superior Landlord shall be under any
liability to effect any insurance in relation to the Tenant's Works, or
any materials, goods, machinery or equipment on or about the Premises
otherwise than under the Lease following its grant.
13. INSPECTION AND RECTIFICATION OF THE TENANT'S WORKS
13.1 Without prejudice to clause 15.2 or 19, the Landlord and/or the
Superior landlord may at any time until the Landlord's Surveyors have
given approval under clause 14.5:
13.1.1 authorise in writing any person to enter on the Premises at any
time to inspect the Tenant's Works and ascertain that the Tenant's
obligations under this Agreement are being complied with; and
13.1.2 give notice to the Tenant requiring it to rectify any defects
found in the Tenant's Works such that the same do not comply with
this Agreement or would otherwise adversely affect the Building or
the Premises ("Defects") and to remove and make
good to their reasonable satisfaction any works carried out by the
Tenant which do not accord with this Agreement.
13.2 If the Tenant fails to comply with any such notice within such
reasonable time as the Landlord and/or the Superior Landlord may
require, the Landlord and/or the Superior Landlord may itself rectify
the Defects and remove and make good any works which do not accord with
this Agreement, and the cost of doing so will be repaid by the Tenant
to the Landlord on demand with Interest in respect of the period from
the date that the incurring of any such cost shall be notified to the
Tenant to the date of payment by the Tenant.
14. COMPLETION AND APPROVAL OF THE TENANT'S WORKS
14.1 The Tenant shall use its best endeavours to complete the Tenant's Works
within ten weeks of receiving the confirmation referred to in clause
12.1.
14.2 Not later than completion of the Tenant's Works, the Tenant shall
supply the Landlord and the Superior Landlord with an itemised schedule
of the cost of the Tenant's Works for the purposes of the insurance of
the Premises and the Building.
14.3 The Tenant shall give written notice to the Landlord and the Superior
Landlord as soon as possible after completion of the Tenant's Works.
14.4 The Landlord's Surveyors shall inspect the Tenant's Works within two
weeks of the notification given by the Tenant in accordance with clause
14.3 of this Agreement.
14.5 Within two weeks of the inspection referred to in clause 14.4 of this
Agreement the Landlord's Surveyors shall either issue a written
approval to that effect (and copies shall be supplied to both the
Landlord and (if required) the Superior Landlord and the Tenant),
or shall advise the Tenant of any con-compliance in respect of the
completion of the Tenant's Works in which case the provisions of
clauses 14.3, 14.4 and 14.5 shall be re-implemented until such time
that approval can be given provided that any dispute between the
parties shall be governed by the provisions of clause 20 of this
Agreement.
14.6 Until such approval has been issued, the Tenant shall not be entitled
to enter on or occupy the Premises for any purpose other than carrying
out the Tenant's Works.
14.7 Issue of the Landlord's Surveyor's approval under clause 14.5 is
without prejudice to the Tenant's obligations under this Agreement with
respect to the carrying out of the Tenant's Works.
15. STATUS OF TENANT PENDING COMPLETION
Until completion of Lease:
15.1 any occupation of the Premises by the Tenant shall be as a licensee and
not a tenant and no relationship of landlord and tenant shall exist
between parties; and
15.2 subject to clause 15.1 the Tenant shall observe and perform the
Tenant's covenants and obligations contained in the Lease (including,
without limitation, those contained in clause 3.2 thereof) and shall
(except where expressly varied by this Agreement) be bound by the
conditions and other provisions of the Lease as if it has been granted
on the date of this Agreement.
16. COMMENCEMENT OF LICENSE FEES
16.1 The Tenant shall pay a license fee (or rent if the Lease has been
completed) at the rate of the First Initial Rent reserved by clause
2.4.1 of the Lease on and from the date which is six months after
the date of this Agreement and at the rate of the Second Initial Rent
reserved by clause 2.4.1 of the Lease on and from the date which is
nine months after the date of this Agreement in both cases at the times
and in the manner specified in the Lease.
16.2 The Tenant shall with effect from the Completion Date or the date the
Tenant is given occupation whichever is earlier pay the sums reserved
as rent payable under the Lease in
respect of Insurance and service charge at the times and in the
manner specified in the Lease.
17. FURTHER PROVISIONS RELATING TO COMPLETION OF THE LEASE
17.1 On the day being five working days after the satisfaction of all of the
Conditions and (if the Landlord so requires) upon payment by the Tenant
of any outstanding sums payable to the Landlord pursuant to the terms
of this Agreement., the Lease shall be completed in accordance with
clause 3.
17.2 The following dates shall be completed in the Particulars to the Lease:
17.2.1 the date of the Lease (which shall be the Completion Date); and
17.2.2 the First Rent Commencement Date (which shall be the day being six
months from the date of this Agreement); and
17.2.3 the Second Rent Commencement Date (which shall be the day being
nine months from the date of this Agreement); and
17.2.4 the Date of Commencement of the Term (which shall be the quarter
day immediately preceding the date of this Agreement).
17.3 Upon completion of the Lease the Landlord shall pay to the Tenant the
sum of(pound)380,000 plus value added tax which sum represents the
Landlord's contribution towards (i) the cost to the Tenant of carrying
out the Tenant's Works and (ii) the cost to the Tenant of performing
the Tenant's obligations to reinstate the Premises in accordance with
clause 3.28 of the Lease. The Landlord's obligation to pay the value
added tax on such sum shall be conditional upon the Tenant delivering
to the Landlord (on the Completion Date) a valid value added tax
invoice therefor.
18. VAT
18.1 The Tenant agrees in each case subject to the Landlord delivering to
the Tenant a valid value added tax invoice therefor:
18.1.1 to pay the Landlord any value added tax chargeable upon any supply
made by the Landlord to the Tenant by, pursuant to or in
connection with this Agreement so that all consideration for any
such supply is exclusive of value added tax;
18.1.2 to pay and to indemnify the Landlord against any value added tax
chargeable upon any supply (whether made to the Landlord or to a
third person) where pursuant to this Agreement the Tenant is
required to pay the Landlord any sum in respect of any costs fees
expenses or other expenditure or liability (of whatever nature) in
connection with that supply; and
18.1.3 to pay all such value added tax at the same time that the relevant
sum of money or consideration is payable to or receivable by the
Landlord or (if earlier and in relation to supplies made by the
Landlord to the Tenant) at the time that the supply is treated as
taking place for the purposes of the charge to value added tax.
18.2 The Landlord retains absolute discretion (save in the case of manifest
error) (so far as permitted by law) as to whether any supply made by
the Landlord to the Tenant is or is to be an exempt supply or a taxable
supply for the purposes of value added tax.
19. DEFAULT OF THE TENANT
19.1 Without prejudice to any other rights and remedies which the Landlord
may have for breach of this Agreement, the Landlord may determine this
Agreement and resume sole occupation of the Premises to the exclusion
of the Tenant if:
19.1.1 the Tenant fails to begin carrying out the Tenant's Works within
four weeks of the date of this Agreement or (unless such failure
shall not be due to the fault of the Tenant) the date of obtaining
the Landlord's and Superior Landlord's license for the Tenant's
Works and the Consent at clause 9 whichever shall be the later;
19.1.2 the Tenant fails to pay any license fees or other sums payable to
the Landlord under this Agreement within fourteen days of their
becoming due in the case of license fees and after written demand
in the case of all other sums;
19.1.3 any execution or distress is levied upon any asset of the Tenant
at the Premises and is not discharged within seven days;
19.1.4 the Tenant or the Surety enters into liquidation whether
compulsory or voluntary (not being merely a voluntary liquidation
whilst solvent for the purpose of reconstruction) or has a
receiver or administrator or administrative receiver appointed of
all or any assets (or any application for such appointment is
made) or, in the case of the Surety, any analogous process in the
United States or elsewhere;
19.1.5 the Tenant fails to complete the Tenant's Works by the date being
twelve weeks from the date of this Agreement or (unless such
failure shall not be due to the fault of the Tenant) the date of
obtaining the Landlord's and Superior Landlord's license for the
Tenant's Works and the Consent at clause 9 whichever shall be the
later;
19.1.6 the Tenant otherwise at any time breaches any material term of
this Agreement and fails to remedy such breach within fourteen
days of receiving written notification of the same from the
Landlord.
19.2 If this Agreement is determined under clause 19.1:
19.2.1 the Tenant shall pay to the Landlord all reasonable and proper
costs and expenses incurred by the Landlord in, and to the extent
the Landlord may require, either removing and dismantling the
Tenant's Works and reinstating the Premises, or completing the
Tenant's Works in circumstances where the Tenant has failed to do
so within two weeks of receiving written notification to do so by
the Landlord.
19.2.2 the Tenant shall indemnify the Landlord against all professional
and other costs and expenses arising out of the determination of
this Agreement;
19.2.3 any wholly or partially completed Tenant's Works and any other
materials plant and equipment at the Premises belonging to the
Tenant shall be removed by the Tenant at the request of the
Landlord and any not so removed within two weeks of such request
shall become the property of the Landlord without any compensation
being payable to the Tenant; and
19.2.4 the Tenant shall indemnify the Landlord in respect of any charge
to tax or any other levy charge or duty or the loss or withholding
of any relief or credit in respect of any tax levy charge or duty
arising out of or resulting from the Tenant's Works or the
provisions of this Agreement save in relation to the VAT payable
in accordance with the provisions of clause 17.3 hereof.
20. ARBITRATION
20.1 Any dispute or difference which arises between the Landlord and the
Tenant as to the carrying out of the Tenant's Works shall be referred
to the decision of any expert if either the Landlord or the Tenant
gives notice to the other requiring determination of such dispute or
difference.
20.2 Such notice may be given in writing not earlier than one week after the
dispute or difference arose.
20.3 The expert("Expert") in the case of any matter relating to building
obligations shall be CCM ▇▇▇▇▇ of ▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ but in any other case shall be appointed by agreement
between the parties or (in default of agreement) on the application of
either the Landlord or the Tenant by the President for the time being
of the Royal Institution of Chartered Surveyors.
20.4 The Expert shall invite the parties to submit to him within such
reasonable time limits as he may direct (having regard to the urgency
of the matter) such written representations
concerning the dispute or difference in question as they may
respectively wish and the Expert shall have such regard (if any) to any
such representations as he shall consider appropriate.
20.5 The Expert shall determine the matter in dispute with the utmost speed
and his decision shall be final and binding on the parties hereto.
20.6 The fees and expenses of the Expert including the cost of his
appointment shall be in the award of the Expert.
20.7 The Expert shall give to each of the Landlord and the Tenant a notice
in writing stating the results of his determination pursuant to
clause 20.5.
21. NON ASSIGNMENT
Subject to the provisions of clause 27.4 below, the Tenant will not be
entitled to assign charge or deal in any way with the benefit of this
Agreement and the Landlord will only grant the Lease of the Premises as a
whole to the Tenant named in this Agreement.
22. GUARANTEE
In consideration of the Landlord entering into this Agreement with the
Tenant, the Surety, as a primary obligation:
22.1 guarantees to the Landlord that the Tenant will promptly comply with
its obligations under this Agreement, and
22.2 will indemnify the Landlord against all losses damages costs and
expenses arising as a result of any default by the Tenant in complying
with the terms of this Agreement; and
22.3 agrees that no time or indulgence granted to the Tenant by the Landlord
nor any variation of the terms of this Agreement nor any other thing by
virtue of which but for this provision the Surety would have been
released save for the formal release of the Surety by the Landlord will
in any way release the obligations of the Surety to the Landlord under
this clause; and
22.4 agrees to execute the counterpart Lease in accordance with clause 3.3.
23. NO PUBLICITY
Except insofar as required to comply with Stock Exchange or statutory
requirements:
23.1 The terms and conditions of this Agreement will not be released by any
party to the press or any periodical journal nor will any party make
any public announcement about it without the prior written consent of
all the other parties.
23.2 Each party will treat this Agreement as confidential to it and to its
advisers bankers and (subject to clause 23.3 below) other parties
involved in the grant of the Lease.
23.3 The provisions of clause 27 hereof shall remain confidential to the
parties hereto and their respective professional advisors.
24. JURISDICTION
The proper law of this Agreement and the jurisdiction to which the parties
are subject is that of England and the Tenant and the Surety agree that the
office of the Tenant's Solicitors is an effective address for service of
any notices to be served upon either of them under this Agreement and any
proceedings commenced in the English Courts.
25. NON-MERGER
The provisions of this Agreement will remain in full force and effect
(notwithstanding completion of the Lease) to the extent that they remain to
be observed and performed.
26. NOTICES
26.1 Any demand or notice to be served on the Landlord or the Tenant or the
Surety under this Agreement will be validly served if sent by fax or by
first class post addressed to that party's solicitors.
26.2 Any demand or notice sent by post will be conclusively treated as
having been served forty-eight (48) hours after posting.
26.3 The provisions for postal service set out above are not to prevent any
other effective form of service.
27. RENTAL REBATE
27.1 With effect from the date upon which the First Initial Rent and the
Second Initial Rent become payable or grant of the Lease whichever
shall be the later and conditional upon the Tenant paying to the
Landlord the Rents and other sums reserved by the Lease on the due
dates therein provided, the Landlord agrees to pay to the Tenant the
following amounts:
27.1.1 For the period commencing from and including the First Rent
Commencement Date up to and including the day immediately prior to
the Second Rent Commencement Date, the annual sum of
(pound)151,545.60 plus value added tax thereon.
27.1.2 For the period commencing from and including the Second Rent
Commencement Date up to and including the day immediately
preceding the Rent Review Date, the annual sum of
(pound)193,603.60 plus value added tax thereon.
27.1.3 For the period commencing from and including the Rent Review Date
up to and including 1 June 2002, the annual sum of
(pound)193,603.60 plus value added tax thereon plus the amount by
which the annual rent amount (being the rent served by clause
2.4.1 of the Lease) which the Tenant is required to pay to the
Landlord under
and by virtue of the provisions of the Second Schedule to the
Lease exceeds (pound)1,006,305.60 plus value added tax on such
excess.
27.2 The amounts payable by the Landlord to the Tenant pursuant to clause
27.1 above shall be paid by equal quarterly payments within three
working days of the date of receipt by the Landlord of cleared funds
from the Tenant of the full rents due from the Tenant under clause 2.4
of the Lease and to the extent that any payments are due from the
Landlord to the Tenant under clause 27.1 in relation to any period
which is shorter than a quarter, the Landlord shall only be required to
pay the proportionate amount.
27.3 For the avoidance of doubt:
27.3.1 The Tenant agrees to pay in full all Rents and other sums due
under the Lease on the due dates for payment therein provided
without any legal or equitable set off or deduction whatsoever.
27.3.2 The Landlord agrees to pay in full the amounts set out in clause
27.1 hereof on the due dates for payment therein provided without
any legal or equitable set off or deduction whatsoever.
27.4 In the event that the Rent (or a fair and just proportion of it) is
suspended in accordance with clause 5.2 of the Lease then the amounts
payable by the Landlord to the Tenant pursuant to clause 27.1 above
shall be suspended in the same proportion and for the same period of
time.
27.5 If the Tenant assigns the Lease to a third party in accordance with the
provisions of clause 3.17 of the Lease, the Tenant may assign the
benefit of the Landlord's obligations
under this clause 27 to such assignee provided that written notice
of such assignment is forthwith given to the Landlord.
27.6 The provisions of this clause 27 shall not be binding upon the
Landlord's successors in title.
28. RIGHT OF FIRST REFUSAL AND OPTION TO LEASE IN RELATION TO SIXTH AND
SEVENTH FLOORS
28.1 The Landlord shall not grant a lease of the sixth and seventh floors of
the Building (the "Additional Premises") to a third party before 17
March 1998 without first giving notice to the Tenant (the "Landlord's
Notice") of the terms which have been agreed between the Landlord and
the third party including any terms relating to a rent rebate whether
or not similar to that set out in clause 27 of this Agreement (the
"Rent Rebate").
28.2 Upon receipt of the Landlord's Notice the Tenant may (not later than 14
days after receipt of it) give written notice to the Landlord (the
"Tenant's Notice") that the Tenant and the Surety wish to take up a
lease of the Additional Premises and enter into an Agreement containing
provisions relating to the Rent Rebate (the "Supplemental Deed").
28.3 Subject to clause 28.7 the Landlord hereby grants the Tenant an option
(the "Option") to take a lease of the Additional Premises. The Tenant
may exercise the Option by written notice to the Landlord not later
than 17 March 1998.
28.4 In the event that the Landlord shall receive the Tenant's Notice or
notice of the exercise of the Option and provided that the Tenant shall
at the date of the Tenant's Notice or of the notice of exercise of the
Option and thereafter until the grant of the Additional Lease (as
hereinafter defined) have paid the Rent and performed and observed in
all material respects the covenants contained in the Lease the Landlord
(but subject to clause 28.5 hereof) shall grant and the Tenant and the
Surety shall take a lease of the Additional Premises (the "Additional
Lease") upon the following terms:
28.4.1 The Additional Premises shall comprise the lettable space
(excluding common areas) situate on the sixth and seventh floors
of the Building together with the right to use 20 car parking
spaces as shall be allocated by the Landlord.
28.4.2 The Additional Lease shall be for a term commencing on the date of
its grant and expiring on 16 March 2004.
28.4.3. The net annual rent payable by the Tenant in respect of the
Additional Premises after allowing for the Rebate referred to in
clause 28.4.6 shall be:
(a) in the event that the Additional Lease is granted pursuant
to receipt of the Tenant's Notice the rent contained in the
Landlord's Notice; or
(b) in the event the Additional Lease is granted pursuant to
exercise of the Option the higher of (1) the Open Market
Rent (as defined in the Second Schedule to the Lease but as
if reference therein to the Demised Premises were reference
to the Additional Premises) as at the date of exercise of
the Option and (2) rent at the rate of (pound)22 per square
foot net internal.
the first proportionate payment being due on the date of the grant
of the Additional Lease and thereafter on the usual quarter days.
28.4.4 The Additional Lease shall be in the same form as the Lease
subject to the modifications set out in clause 28.10 below.
28.4.5 The annual rent to be reserved in clause 2.4.1 of the Additional
Lease shall be (pound)339,590 being the part of the annual rent
payable pursuant to the Superior Lease which is fairly
attributable to the Additional Premises.
28.4.6 The Landlord the Tenant and the Surety shall enter into a
Supplemental Deed pursuant to which the Landlord shall rebate to
the Tenant the amount (if any) by which the rent reserved in
clause 2.4.1 of the Additional Lease (in accordance with clause
28.4.5 hereof) exceeds the amount payable by the Tenant pursuant
to clause 28.4.3 hereof such deed to be in the same terms (and for
the avoidance of doubt the obligation to pay the rebate to expire
on the same date)(mutatis mutandis) as the provisions of clause 27
hereof.
28.5 The grant of the Additional Lease shall be conditional upon the
following:
28.5.1 obtaining the consent of the Superior Landlord to the grant of the
Additional Lease (and the provisions of clauses 9.1 and 9.2 of
this Agreement shall be deemed to apply to the obtaining of such
consent mutatis mutandis and the Tenant shall pay the Landlord's
and the Superior Landlord's reasonable and proper costs in
connection with the application for such consent);
28.5.2 obtaining an Order of the Court under the provisions of section
38(4) of the Landlord and ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ (as amended by section 5
of the Law of Property Act 1969) authorizing the exclusion of
sections 24-28 (inclusive) of the Landlord and ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ in
relation to the Additional Lease and the parties shall apply for
such Order forthwith following the receipt of the Tenant's Notice
or the exercise of the Option
28.5.3 The Tenant procuring for the benefit of the Landlord an opinion of
Counsel qualified to practice in the State of Delaware confirming
that the agreement for the Additional
Lease and also the Additional Lease when granted have been duly
and properly executed by the Surety and will be enforceable
against and binding upon the Surety in accordance with the Law of
Delaware and the constitution of the Surety. Such opinion shall be
in a form reasonably approved by the Landlord (such approval not
to be unreasonably withheld).
and the parties hereto agree to use all reasonable endeavours to
satisfy the above conditions.
28.6 The completion of the grant of the Additional Lease (the "Additional
Lease Completion Date") shall be:
28.6.1 in the event that the Additional Lease is to be granted pursuant
to receipt of the Tenant's Notice 14 days after the date upon
which the conditions specified in clause 28.5 above have been
satisfied provided that if within one month of receipt of the
Tenant's Notice (time being of the essence) either such conditions
shall not have been satisfied or the Additional Lease shall not
have been granted then the Landlord (not being in breach of it
obligations under this Agreement) shall be entitled to
proceed with the grant of a lease to the third party on
terms no less beneficial to the lessee than those set out in the
Landlord's Notice; or
28.6.2 in the event that the Additional Lease is to be granted pursuant
to the exercise of the Option five working days after the date
upon which the conditions specified in clause 28.5 above have been
satisfied provided that if within two months of the date of notice
of exercise of the Option (time being of the essence) either such
conditions shall not have been satisfied or the Additional Lease
shall not have been granted then either party (not being in breach
of its obligations under this Agreement) shall be
entitled to terminate this Agreement in respect of the grant of
their claim by either party against the other.
28.7 In the event that the Landlord shall grant a lease to the third party
in accordance with the provisions of this Agreement then the Option
shall cease to have any further force or effect.
28.8 The following provisions of this Agreement shall apply in relation to
the grant of the Additional Lease and shall be construed as if a
reference therein to the "Lease" the "Premises" and the "Completion
Date" were reference to the "Additional Lease" the "Additional
Premises" and the "Additional Lease Completion Date".
Clauses 3.1, 3.2, 3.3, 4, 6, 7, 8, 18, 19.1.4, 21, 22, 23, 24, 25,
26.
28.9 The Tenant shall accept the Landlord's title as deduced prior to the
date of this Agreement.
28.10 The Additional Lease shall be in the same form as the Lease but subject
to the following modifications:
28.10.1 The Demised Premises shall be deemed to refer to the Additional
Premises and the Lease shall be amended as appropriate to reflect
this.
28.10.2 The Date of Commencement of Term shall be the date of the grant
of the Additional Lease.
28.10.3 Reference to "First Rent Commencement Date" and "Second Rent
Commencement Date" shall each be replaced with reference to the
"Rent Commencement Date" and this date will be the date of the
Additional Lease.
28.10.4 If the Additional Lease is granted pursuant to the exercise of the
Option but if the Landlord and the Tenant shall have been unable
to agree the Open Market Rent prior to the date of the grant of
the Additional Lease, then the Rent Review Dates shall be the date
of the grant of the Additional Lease and 17 March 1999 but if the
Landlord and the Tenant have agreed the Open Market Rent prior to
the grant of the Additional Lease then the Rent Review Date shall
be 17 March 1999.
28.10.5 The "On Account Payment" (in respect of service charge) shall be
the sum of(pound)70,000 per annum.
28.10.6 Reference to the First Initial Rent and the Second Initial Rent to
be replaced with reference to the Initial Rent.
28.11 In the event that the Tenant decides at any time that if does not wish
to exercise the Option then the Tenant shall in good faith give written
notice to the Landlord to that effect and shall irrevocably abandon the
Option whereupon the provisions of clause 28.3 shall cease to have
effect.
28.12 The Landlord the Tenant and the Surety shall execute a supplemental
deed upon the grant of the Additional Lease to the effect that:
28.12.1 if the Lease shall determine other than by the effluxion of time
prior to the grant of the Additional Lease then the provisions of
this clause 28 and any contract created pursuant to this clause
shall be null and void and cease to have effect;
28.12.2 if either of the Lease or the Additional Lease is forfeited or
terminated then this will automatically result in the forfeiture
or termination of the other; and
28.12.3 neither the Lease or the Additional Lease may be assigned without
the concurrent assignment of the other to the same assignee.
29. LANDLORD'S WORKS TO CREATE OFFICE ON GROUND FLOOR
29.1 Within four weeks of the Completion Date subject to all necessary
consents having been obtained (which the Landlord shall use all
reasonable endeavours to apply for and obtain) the Landlord shall at
its sole cost and expense construct (on the ground floor of the
Building) a new self contained office (to form part of the Common
Parts) in the position shown for identification purposes only edged
blue on the plan attached to this Agreement for the purposes of housing
security, engineering and other maintenance staff employed by the
Landlord at the Building (the "Landlord Works").
29.2 The Landlord shall in carrying out such works cause at little
inconvenience disruption and disturbance as reasonably possible to the
carrying out of the Tenant's Works and the least practicable delay in
completion of the Tenant's Works attributable to the Landlord's works
shall not entitle the Landlord to implement the provisions of clause 19
of this Agreement.
IN WITNESS, whereof this Agreement has been executed as a deed the day and year
first above written.
Diagram of Leased Premises
-SCHEDULE 1
Disclosed Documents
1. Date Document Parties
17 March 1989 Superior Lease (as the Markheath Properties (1)
same is registered under and Ultramar Exploration
Title Number AGL 8895) Ltd (2) and Ultramar PLC (3)
2. Matter disclosed in the registers of Title Number AGL8895.
SCHEDULE 2
Tenant's Works
1. GENERALLY
1.1 The works described are to the Ground to Fourth Floor office areas and
do not include common part or lift lobbies.
1.2 The existing common parts (stairs, lobbies, toilets, etc) are to be
refurbished under a separate contract.
1.3 One existing lift will be available for transporting men and material
(large items will need to be carried up or down the stairs).
1.4 Space will be provided in the rear car park for material storage and
rubbish
containers.
1.5 All labour must adhere to the strict security arrangements in place on the
site.
2. PARTITIONS (WORKS TO BE CARRIED OUT BY UNILOCK)
2.1 Dismantle existing partitions and move surplus materials to store.
2.2 Re-erect existing partitions to new layout, replacing plasterboard and
other components as necessary, make good and leave ready for
decorations (by others).
2.3 Provide and fit new glazed partitions, as new layout. Glazed partitions
to be formed with two panes of safety glass with void between as
existing. Re-use existing components wherever possible. Generally the
glazed partitions will not require the insertion of venetian blinds
other than to directors offices from Ground to Third Floor and Fourth
Floor East, and all offices to Fourth Floor West. Allow to re-use
existing blinds generally but for the supply of new blinds to Fourth
Floor West.
2.4 All solid partitions are to have acoustic quilt inserted in the void.
2.5 The existing doors and ironmongery are to be re-used in the new layout
(allow for new ironmongery to match existing and ply faced doors with
vision panels, where necessary). Ironmongery shall only be re-used if
it is fit for its purpose. Unilock will enter into a warranty for the
whole of this section of the works including those materials re-used.
2.6 Wash down existing partition components and wall storage units prior to
completion.
3. SUSPENDED CEILINGS
3.1 Repair ceilings as necessary Ground to Third Floors.
3.2 Clean existing ceiling where retained.
3.3 Remove existing ceiling to Fourth Floor.
3.4 Provide and fit new 600 x 600 ▇▇▇▇▇▇▇▇▇ Dune Plus ceiling tiles on
exposed 15mm ▇▇▇▇▇▇▇▇▇ White grid to Fourth Floor
3.5 Adjust existing ceiling suspension grid and tiles to accept 600 x 600m
light fittings as required.
4. LIGHTING
4.1 Remove existing lights and provide and fit new 600 x 600mm category two
lighting to ground and First Floors to provide 450 Lux at desk height.
Confirm number of fittings included in Tender Sum.
4.2 Re-use low voltage lights (elsewhere throughout the building) to Fourth
Floor corridor (East and West), boardroom and reception areas.
4.3 All other areas to retain existing fittings, supplement as necessary
from ground and First Floors to provide 450 Lux at desk height. Clean
etc.
4.4 Adjust switching to all lights to suit new partition layouts.
4.5 Ensure Master switching at exit points is till effective after
re-configuration.
5. FLOOR COVERINGS
5.1 The existing raised floor is generally to be retained.
5.2 Floor boxes may be moved to new positions to suit layout. (By others).
5.3 Remove existing carpet tiles throughout.
5.4 Provide and lay carpet tiles (allow p.c. sum of(pound)200.00/m2 -
supply only) to all office areas.
5.5 Provide and lay vinyl flooring with welded joints to tea stations and
dining area (vinyl to be laid on 4mm ply sub-base. Allow p.c. sum of
(pound)200.00/m2 - supply only).
5.6 Provide and lay Altro D25 flooring with welded joints to shower areas
including all preparation/boarding necessary.
5.7 Provide silicone sealant to perimeter of all vinyl flooring.
6. DECORATIONS
6.1 Remove existing wall covering to under cill panels and isolated
columns, prepare and make good as necessary.
6.2 Emulsion plasterboard panels to partitions.
6.3 Emulsion chipboard under cill panels.
6.4 Emulsion plaster isolated columns.
6.5 Paint with oil paint all existing timber skirtings, framings to under
cill panels, cills and doors, include any timer door frames and
architraves.
7. MECHANICAL SERVICES
7.1 reconfigure controls and wiring to Versatemp units to conform to new
partition layouts (minimum of one control per room - more than one
would be acceptable).
7.2 Check units are working and report any faults.
7.3 Relocate fresh air inlets/grilles to suit new layout.
7.4 Provide hot and cold water supplies, and waste disposal drainage, to
new tea stations.
7.5 Should the Tenant construct a partition over a Versatemp until then the
Tenant will ensure that the casing and the grill of the partition is
adapted to permit the Landlord or his agents or contractors access to
the Versatemp unit in order to carry out maintenance repair removal and
replacement of the Versatemp unit and the Tenant shall restrict the
airflow to the area containing the control if necessary.
8. CANTEEN
Remove remaining canteen equipment, floor coverings, wall finishes etc.
9. NEW TEA STATIONS
9.1 Install new Tea Station with kitchen units, worktops etc. In each
station allow for the installation of two wall units, two base units,
worktops, sink (taps and waste). Allow a p.c. sum of (pound)800.00 per
station for the supply of these items.
9.2 Install ceramic tiles splashbacks above all worktops 300mm high. Allow
a p.c. sum of(pound)30.00/m2 for the supply only tiles.
9.3 Provide silicone sealant to worktop/tiles, sinks, flooring, etc.
10. WINDOW BLINDS
10.1 Generally retain existing venetian blinds Ground to Third Floors.
10.2 Check blinds are in good working order,overhaul as necessary and clean.
10.3 Remove any existing roller blinds to North Elevation (all floors).
10.4 Provide and fit new venetian blinds to North Elevation Ground to Third
Floors (re-use existing blinds from Fourth Floor and First Floor West
where possible).
10.5 Provide and fit new venetian blinds to all Elevations Fourth Floor and
First Floor West and First Floor West (25mm blades - colour to be
selected).
EXECUTED as a DEED by the )
Landlord in the presence of: )
Director
Director/Secretary