Exhibit 10.68
DATED 14th JULY 2004
MR AND ▇▇▇ ▇ ▇ ▇▇▇▇▇▇▇▇ (1)
-TO-
LARK TECHNOLOGIES INC. (2)
LEASE
OF LAND AND BUILDINGS AT LITTLE BULLOCKS FARM,
HOPE END, TAKELEY, NEAR ▇▇▇▇▇▇'▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇
Solicitors
▇▇-▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇
(Ref: JA/▇▇▇▇▇▇▇▇)
INDEX
DEFINITIONS....................................................................1
INTERPRETATION.................................................................2
DEMISE.........................................................................3
TENANT'S COVENANTS ........................................................... 3
LANDLORD'S COVENANTS .........................................................13
RENT REVIEW ..................................................................15
PROVISOS .....................................................................18
First Schedule - the demised premises
Second Schedule - ancillary rights
Third Schedule - reserved rights
THIS
LEASE is made the 14th July, 2004
BETWEEN:- ______________________________________________________________________
PARTIES
(1) "the Landlord" : ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ both of Little Bullocks Farm, Hope
End, Takeley, near ▇▇▇▇▇▇'▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
(2) "the Tenant" : LARK TECHNOLOGIES INC. (a company incorporated
in the United States and registered in the
United Kingdom under foreign company register
company no. FC018849, branch no. BR003154) whose
head office is 9441 ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ and
the address of whose registered branch in Great
Britain is at ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇ ▇▇▇
DEFINITIONS
1. IN this
lease the following terms have the meanings set against
them:-
1.1 "THE DEMISED PREMISES" : the premises described in the First
Schedule;
1.2 "THE TERM" : a term of years starting on the 1st
June 2004 and expiring on the 31st
May 2014;
1.3 "THE INITIAL RENT" : L64,000 (Sixty four thousand pounds)
per annum;
1.4 "RENT PAYMENT DAYS" : the first day in each calendar month
of the term;
1.5 "REVIEW DATE" : the 1st June 2009;
1.6 "THE PERMITTED USE" : subject to the provisions of subclause
4.11 of this
lease, any use that falls
within Classes B1 and B8 of the
Schedule to the Town and Country
Planning (Use Classes) Order 1987.
1
INTERPRETATION
2. IN the interpretation of this
lease:-
2.1 "LANDLORD" includes the person for the time being entitled to
the reversion immediately expectant on the termination of the
term;
2.2 "TENANT" includes the assigns and successors in title of the
Tenant and the person in whom for the time being the demised
premises are vested for the term;
2.3 Whenever the demised premises are vested in more than one person
for the term, every covenant on the part of the Tenant contained
in this
lease shall be deemed to be made jointly and severally by
those persons;
2.4 Words importing one gender include all other genders and words
importing the singular include the plural and vice versa;
2.5 The expression "THE TERM" includes any period of holding over or
extension whether by statute or otherwise;
2.6 A reference to a statute shall refer to the statute as
amended at the date of this
lease and shall include any
subsequent statutory amendment or re-enactment thereof;
2.7 "THE BANK" means Barclays Bank plc or the bank which is the
successor to the business of that bank or, if any such bank
ceases to trade in circumstances that no one bank succeeds to
that business, such member of the Committee of London and
Scottish Bankers as the Landlord may nominate;
2.8 "BASE RATE" means the published base rate from time to time of
the bank, but if no such rate shall be published, four per cent
above the rate paid by the bank from time to time on deposits of
the minimum sum accepted at interest for repayment on seven days'
notice;
2.9 "INTEREST" is at the annual rate of five per cent above the base
rate for the time being compounded with rests on each rent
payment day;
2.10 Any covenant to pay interest shall be a covenant to pay interest
at the said rate both before and after any judgment or
arbitration award;
2.11 "THIS
LEASE" includes any deed or document supplemental to this
lease;
2.12 The clause and schedule headings do not form part of this
lease
and shall not be taken into account in its construction or
interpretation.
2
DEMISE
3. THE Landlord hereby demises unto the Tenant ALL THOSE the demised
premises TOGETHER WITH the benefit of the rights set out in the
Second Schedule BUT EXCEPT AND RESERVING unto the Landlord the
rights set out in the Third Schedule TO HOLD the same unto the
Tenant for the term SUBJECT to all rights, easements, privileges,
restrictions, covenants and stipulations of whatever nature
affecting the demised premises YIELDING AND PAYING therefor the
initial rent or such other yearly rent as may be agreed or
determined in accordance with clause 6 of this lease by equal
monthly installments in advance on the rent payment days (the
first and last payments being (if appropriate) of a proportionate
sum) AND ALSO YIELDING AND PAYING as further rent on demand sums
equal to the premiums from time to time expended by the Landlord
in effecting and maintaining insurance of the demised premises in
accordance with the obligations of the Landlord contained in
subclause 5.2 of this lease.
TENANT'S COVENANTS
4. THE Tenant COVENANTS with the Landlord as follows:-
4.1 RENT
4.1:1 To pay the rents hereby reserved on the days and in the manner
set out in this lease without any deductions whatsoever and
without exercising any right of set off;
4.1:2 If so required in writing by the Landlord to make such payments
by banker's order or credit transfer to any bank account in the
United Kingdom that the Landlord may from time to time nominate;
INTEREST ON ARREARS
4.1:3 To pay interest on all or any part of any installment of rent
hereby reserved or other sum payable by the Tenant hereunder from
seven days after the same shall have become due until the date of
payment.
4.2 OUTGOINGS
To pay all rates, taxes and outgoings in respect of the demised
premises including any imposed or becoming payable after the date
hereof, whether or not of a novel nature but not:
4.2:1 any tax assessed upon the aggregate or any proportion of the
income or the value of the assets of the Landlord; nor
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4.2:2 any tax assessed or payable by reason of the act of the Landlord
in granting this lease to the appropriate authorities
respectively responsible for collecting the same, provided that:
(a) in the absence of direct assessment or supply the Tenant
shall on demand pay to the Landlord a fair proportion
determined by the Landlord acting reasonably of all rates,
taxes, water supply charges, electricity supply charges and
other outgoings attributable or supplied both to the demised
premises and to neighbouring property of the Landlord; and
(b) if the demised premises shall have been left unoccupied
during any period immediately preceding the termination of
the term as a result of which a void allowance for rating
purposes becomes available to the Tenant and on the
termination of the term such void allowance for unoccupied
property is restricted to a maximum period, then the Tenant
shall pay to the Landlord such sum as shall afford the
Landlord the equivalent of the full benefit of such maximum
period.
4.3 CONDITION
4.3:1 To keep the interior of the demised premises in a clean condition
and in good repair and decorative order, damage by any risk
covered by the Landlord's buildings insurance policy for the time
being in force in respect of the demised premises excepted,
unless and to the extent that any act or omission of the Tenant
renders the insurance money irrecoverable and subject to the
Tenant reimbursing the Landlord on demand any excess applicable
to the policy) and the interior of the demised premises shall be
deemed to include all ceilings, floors and the internal surfaces
of all walls, but shall exclude joists immediately above ceilings
and supporting floors;
4.3:2 To yield up the demised premises with the interior thereof, all
additions to them and all fixtures annexed to them in such clean
condition and good repair and decorative order and with vacant
possession of the whole to the Landlord on the termination of the
term howsoever determined;
4.3:3 Nothing in this subclause shall oblige the Tenant to do any work
to put the interior of the demised premises into a better state
and condition than it was in on the date of this lease as
evidenced by the photographic record of condition attached
hereto.
4.4 EFFECT WORKS ON NOTICE
4.4:1 To permit the Landlord or any person authorised by the Landlord
to enter onto the demised premises at any reasonable time on at
least seven days' notice (or without notice in an emergency) to
inspect the condition thereof and on the Landlord giving notice
of any work required by reason of a failure to perform the
4
obligations of the Tenant hereunder promptly to start and
diligently to proceed to make them good;
4.4:2 Upon any failure to comply with a notice under this subclause to
permit the Landlord to enter the demised premises with
appliances, workmen and others to execute the works required to
comply with such notice and to pay to the Landlord on demand the
cost thereof.
4.5 ENTRY TO REPAIR ETC.
To permit the Landlord or any person authorised by the Landord
with appliances, workmen and others to enter the demised premises
at any reasonable time on at least seven days' notice (or without
notice in an emergency) to perform the obligations of the
Landlord contained in clause 5.4 of this lease, to repair,
maintain, cleanse or renew any adjoining or neighbouring property
or any sewers, pipes or wires serving the same or to carry out
construction work pursuant to the rights reserved to the Landlord
under paragraphs 2 and 3 of the Third Schedule, the person so
entering causing as little inconvenience to the Tenant and damage
to the demised premises as is reasonably possible and promptly
making good all damage to the demised premises thereby caused.
4.6 SHARED FACILITIES
To contribute on demand a fair proportion according to use
determined by the Landlord acting reasonably of the cost of
repairing, maintaining, cleansing and (where necessary and
appropriate) resurfacing all party walls, party structures,
yards, unadopted roads, ways and footpaths, landscaped areas,
parking areas, sewers, drains, pipes, conduits, wires and other
things used or enjoyed by the occupier of the demised premises in
common with the occupiers of the Landlord's neighbouring
property.
4.7 ALTERATIONS
4.7:1 Subject to subclause 4.15:2 of this clause, not without the
Landlord's prior written consent to make or permit any
alterations or additions to the demised premises (such consent
not to be unreasonably withheld, provided that as a condition of
granting any such consent the Landlord may require the Tenant to
reinstate the demised premises to their present condition on the
determination of the term, howsoever determined);
4.7:2 In making any alterations or additions to the demised premises to
carry out the work strictly in accordance with the terms of all
necessary official consents (which shall be obtained in advance)
in materials of good quality to light standards of workmanship
and in all respects to the reasonable satisfaction of the
Landlord's architect or surveyor for the time being, whose fees
for inspecting and approving the plans and the work shall be paid
by the Tenant on demand.
5
4.8 INCREASED PREMIUMS
To the extent that any insurance premium payable in respect of
any adjoining or neighbouring property of the Landlord is
increased by reason of the use to which the Tenant puts all or
any part of the demised premises, to pay to the Landlord on
demand the amount of such increase.
4.9 NOT AVOID INSURANCE ETC.
4.9:1 Not to do or permit to be done anything that will or may render
void or voidable any policy of insurance covering the demised
premises or increase the premium payable thereon;
4.9:2 To comply with all requirements and recommendations of the
insurers and the fire authority in relation to the demised
premises and without prejudice to the generality of the
foregoing:
4.9.2:1 To keep the demised premises supplied with such fire fighting
equipment as the insurers and the fire authority may require and
to maintain such equipment in good working order;
4.9.2:2 Not to store or bring onto the demised premises any articles,
substance or liquid of an especially combustible, inflammable or
explosive nature;
4.9.2:3 Not to obstruct the access to any fire fighting equipment or the
means of escape from the demised premises;
4.9:3 Immediately to inform the Landlord in writing of any conviction,
judgment or finding of any court or tribunal relating to the
Tenant (or any director, other officer or major shareholder of
the Tenant) of such a nature as to be likely to affect the
decision of any insurer or underwriter to grant or to continue
any insurance of the demised premises.
4.10 USE
Not to use or permit the use of the demised premises or any part
thereof otherwise than for the permitted use.
4.11 OBJECTIONABLE/PROHIBITED USE
Not to use or permit the use of the demised premises or any part
thereof for any dangerous, offensive, noxious, noisome, illegal
or immoral activity or in any manner that may be or become a
nuisance or annoyance to the Landlord or to the owner or occupier
of any neighbouring premises.
6
4.12 INDUSTRIAL COVENANTS
4.12:1 Not to cause or permit any grit smoke or noxious or offensive
effluvia to be emitted from any apparatus on the demised
premises;
4.12:2 Not to permit to be discharged into the pipes, sewers or drains
serving the demised premises any oil or grease or any
deleterious, objectionable, dangerous, poisonous or explosive
matter or substance and to take all reasonable steps to ensure
that any effluent discharged into such pipes, sewers and drains
will not be corrosive or otherwise harmful to them or cause any
obstruction or deposit in them;
4.12:3 Not to bring or permit to remain upon the demised premises any
safes, machinery, goods or other articles which shall or may
strain or damage the demised premises;
4.12.4:1 Not without the prior written consent of the Landlord to suspend
any weight from the portal frames, stanchions or roof purlins of
the demised premises or use the same for the storage of goods or
place any weight on them;
4.12.4:2 On any application by the Tenant for the Landlord's consent under
the preceding subclause, the Landlord shall be entitled to
consult and obtain the advice of an engineer or other person in
relation to the loading proposed by the Tenant and the Tenant
shall repay to the Landlord on demand the fee of such engineer or
other person;
4.12:5 To keep all plant apparatus and machinery upon the demised
premises properly operated, maintained and in good working order
and to avoid damage to the demised premises by vibration or
otherwise;
4.12:6 Not to bring, keep, store, stack or lay outside the confines of
the buildings on the demised premises any materials, equipment,
plant, bins, crates, cartons, boxes or any receptacle for waste
or other item.
4.13 ACCESS/OPEN AREAS
4.13:1 Not to obstruct the access to the demised premises nor to cause
congestion thereof or inconvenience to any other user thereof;
4.13:2 To keep all parts of the demised premises which are not built on
in a clean and tidy condition at all times.
4.14 PLANNING
4.14:1 At all times to comply with the requirements of the Planning Acts
insofar as they affect the demised premises;
7
4.14:2 Not without the prior written consent of the Landlord to apply
for permission to carry out on the demised premises any
development requiring permission under the Planning Acts;
4.14:3 Not without the prior written consent of the Landlord to
implement any planning permission relating to the demised
premises;
4.14:4 To comply with any conditions attached to any temporary planning
permission that the Tenant implements and which are intended to
be complied with when the demised premises cease to be used in
accordance with that planning permission, even though the period
for which the permission was granted extends beyond the date of
termination of this lease;
4.14:5 Forthwith upon receipt of any notice relating to the development
of the demised premises or any neighbouring property to deliver a
copy thereof to the Landlord and if so required by the Landlord
to join with the Landlord at the expense of the Landlord in
making representations concerning the same;
4.14:6 Whenever required to permit the Landlord to enter upon the
demised premises to comply with any requirement lawfully made of
the Landlord under the Planning Acts by any competent authority
notwithstanding that any action reasonably necessary for
compliance interferes with the Tenant's enjoyment of the demised
premises;
4.14:7 For the purposes of this subclause the expression 'the Planning
Acts' shall mean the Town and Country Planning ▇▇▇ ▇▇▇▇, the
Planning (Listed Buildings and Conservation Areas) ▇▇▇ ▇▇▇▇ and
the rules, regulations and orders which are either made under one
of them or are continued by the Planning (Consequential
Provisions) ▇▇▇ ▇▇▇▇.
4.15 STATUTORY REQUIREMENTS
4.15:1 At all times to observe and comply with the provisions of or
imposed under any statute, licence or registration regulating, or
permitting the use of the demised premises for the purpose for
which they are for the time being used and the requirements of
any competent authority in that connection and at the expense of
the Tenant to do all that is necessary to obtain, maintain and
renew all licences and registrations required by law for the use
of the demised premises for that purpose;
4.15:2 To comply promptly and at the cost of the Tenant with all orders,
notices, regulations or requirements of any competent authority
pursuant to any statute requiring any alteration, addition,
modification or other work on or to the demised premises and
forthwith to notify the Landlord of the receipt by the Tenant of
any such notice, regulation or requirement and deliver to the
Landlord a copy thereof.
8
4.16 ADVERTISEMENTS
Not to display any notices, placards, advertisements or signs on
the exterior of the demised premises or within the demised
premises and visible from outside except a reasonable
announcement of the name and business of the Tenant or any
subtenant of the Tenant to which the Landlord has given prior
written consent (such consent not to be unreasonably withheld or
delayed).
4.17 DEALINGS
4.17:1 Not without the prior written consent of the Landlord to assign,
mortgage or charge the whole of the demised premises, such
consent not to be unreasonably withheld, provided that the
Landlord shall in the case of an assignment be entitled for the
purposes of section 19(1A) of the Landlord and ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ to
withhold consent in any of the circumstances set out in subclause
4.17:3 and to impose all or any of the matters set out in
subclause 4.17:4 as a condition of granting consent (PROVIDED
THAT it is agreed that if the Tenant shall assign, sell, transfer
or otherwise dispose of its business in the UK to a subsidiary
company of the Tenant or to a subsidiary company of the Tenant's
parent company (currently
Genaissance Pharmaceuticals Inc.)
incorporated under the Laws of England and Wales ('the UK
Subsidiary') then the Landlord will consent to the assignment of
the Lease to the UK Subsidiary without conditions);
4.17:2 The proviso to subclause 4.17:1 shall operate without prejudice
to the right of the Landlord to withhold such consent on any
other ground or grounds where such withholding of consent would
be reasonable or to impose any further condition or conditions
upon the grant of consent where the imposition of such condition
or conditions would be reasonable;
4.17:3 The circumstances referred to in subclause 4.17:1 above are as
follows:
4.17.3:1 where the proposed assignee is an associated company of the
Tenant (if the Tenant is a corporation);
4.17.3:2 where in the reasonable opinion of the Landlord the proposed
assignee is not of sufficient financial standing to enable it to
comply with the Tenant's covenants in this lease;
4.17.3:3 where the proposed assignee enjoys diplomatic or state immunity
or is not resident in a jurisdiction where reciprocal enforcement
of judgments exists;
4.17:4 The conditions referred to in clause 4.17:1 above are as follows:
4.17.4:1 the execution and delivery to the Landlord prior to the
assignment in question of a deed of guarantee (being an
authorised guarantee agreement within section 16 of
9
the Landlord and Tenant (Covenants) Act 1995) in a form
reasonably required by the Landlord;
4.17.4:2 the payment to the Landlord of all rents and other sums which
have fallen due under this lease prior to the date of the
assignment;
4.17.4:3 the execution and delivery to the Landlord prior to the
assignment of a rent deposit deed for such sum as the Landlord
may reasonably determine and in such form as the Landlord may
reasonably require, together with the payment by way of cleared
funds of the sum specified in the rent deposit deed;
4.17.4:4 the assignment shall not take place until any requisite consent
of any superior landlord or mortgagee has been obtained and any
lawfully imposed condition of such consent satisfied;
4.17.4:5 Not to sublet the whole of the demised premises without the prior
written consent of the Landlord (such consent not to be
unreasonably withheld or delayed);
4.17:5 That each and every permitted underlease shall be granted without
any fine or premium at a yearly rent not less than the then open
market rental value of the demised premises or the rent then
being paid under this lease (whichever shall be the greater),
such rent being payable in advance on the rent payment days and
shall contain provisions approved by the Landlord:
4.17.5:1 for the upwards only review of the yearly rent reserved by such
underlease on the basis and on the date on which yearly rent is
to be reviewed in this lease;
4.17.5:2 prohibiting the subtenant from doing or allowing any act or thing
in relation to the demised premises inconsistent with or in
breach of the provisions of this lease;
4.17.5:3 for re-entry by the sublandlord on the breach of any covenant by
the subtenant;
4.17.5:4 imposing an absolute prohibition against all dispositions of or
other dealings whatsoever with the demised premises other than an
assignment, mortgage or charge of the whole;
4.17.5:5 prohibiting any assignment, mortgage or charge of the whole
without the prior written consent of the Landlord;
4.17.5:6 prohibiting the subtenant from permitting another to occupy the
whole or any part of the demised premises;
4.17.5:7 effectively excluding the provisions of sections 24 to 28
inclusive of the Landlord and ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ in relation to the
tenancy thereby granted;
10
4.17.5:8 imposing in relation to any permitted assignment, mortgage or
charge the same obligations for registration with the Landlord as
those contained in this lease in relation to dispositions by the
Tenant;
4.17:6 Prior to any permitted underletting to procure that the subtenant
enters into direct covenants with the Landlord to the like effect
as those contained in subclause 4.17:5 above;
4.17:7 To enforce the performance and observance by every subtenant of
the provisions of every permitted underlease and not at any time
either expressly or by implication to waive any breach of the
covenants or conditions on the part of the subtenant nor (without
the prior written consent of the Landlord) to vary the terms or
accept a surrender of any permitted underlease;
4.17:8 In relation to any permitted underlease:
4.17.8:1 to ensure that the rent is reviewed in accordance with the terms
of the underlease;
4.17.8:2 not to agree the reviewed rent with the subtenant without the
written approval of the Landlord;
4.17.8:3 where the underlease provides such an option, not to agree that
the third party determining the rent in default of agreement
shall act as an arbitrator or as an expert without the written
approval of the Landlord;
4.17.8:4 not to agree upon the appointment of a person to act as the third
party determining the rent in default of agreement without the
written approval of the Landlord;
4.17.8:5 to incorporate as part of its submissions or representations to
that third party such submissions or representations as the
Landlord shall reasonably require;
4.17.8:6 to give notice to the Landlord of the details of the
determination of the rent review within 28 days;
4.17:9 Not to hold the demised premises on trust for another nor (save
pursuant to a transaction permitted by and effected in accordance
with the provisions of this lease) to part with possession of the
whole of any part of the demised premises, or permit another to
occupy the whole or any part of the demised premises (save as
provided below) nor to assign, sublet, mortgage or charge part
only of the demised premises.
4.17:10 The Tenant shall be permitted to share the occupation or use of
the demised premises with any company within the same group as
defined by section 42 of the Landlord and ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
provided such company obtains no separate legal estate or
interest in the demised premises
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4.18 GIVE NOTICE OF DEALINGS
Within one month after every assignment, subletting, mortgage or
charge of the demised premises and every devolution of the title
thereto to give notice thereof with full particulars to the
Landlord or to the Landlord's solicitors and to pay a reasonable
registration fee of not less than L 30 plus VAT on each such
occasion and at the same time as giving such notice to provide
for the Landlord's retention a certified copy of the assignment,
underlease, mortgage, charge or other instrument affecting such
dealing or devolution.
4.19 PERMIT INSPECTION
4.19:1 To permit any prospective dealer in the Landlord's interest in
the demised premises or during the last year of the term any
prospective tenant to inspect the demised premises at any
reasonable time on giving at least 24 hours' prior notice in
writing and presenting a written authority from the Landlord or
the Landlord's agents;
4.19:2 During the last year of the term to permit the Landlord to erect
and display on the exterior of the demised premises a board
announcing that they are to let;
4.19:3 At any time during the term to permit the Landlord to erect and
display on the exterior of the demised premises a board
announcing that they are for sale.
4.20 COSTS
To pay to the Landlord on an indemnity basis all costs, fees,
charges, disbursements and expenses (including without prejudice
to the generality of the foregoing those payable to counsel
solicitors surveyors and bailiffs) reasonably and properly
incurred by the Landlord of and incidental to:-
4.20:1 the preparation and service of a notice under section 146 of the
Law of Property ▇▇▇ ▇▇▇▇ notwithstanding that forfeiture is
avoided otherwise than by order of the court;
4.20:2 the recovery or attempted recovery of arrears of rent or other
sums due from the Tenant under this lease;
4.20:3 every application made by the Tenant for a consent or licence
required by the provisions of this lease whether such consent or
licence is granted or refused or proferred subject to any
qualification or condition or whether the application is
withdrawn.
4.21 REGULATIONS
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To comply with all reasonable regulations made by the Landlord
from time to time for the management and security of the estate
of which the demised premises form part.
4.22 INDEMNITIES
To be responsible for and to keep the Landlord fully indemnified
against all damage, damages, losses, costs, expenses, actions,
demands, proceedings, claims and liabilities made against,
suffered or incurred by the Landlord arising directly or
indirectly out of:
4.22:1 any act, omission or negligence of the Tenant or any persons at
the demised premises expressly or impliedly with the Tenants
authority; or
4.22:2 any breach or non-observance by the Tenant of the covenants,
conditions or other provisions of this lease or any of the
matters to which this demise is subject.
LANDLORD'S COVENANTS
5. THE Landlord COVENANTS With the Tenant as follows:-
5.1 QUIET ENJOYMENT
That so long as the Tenant is not in breach of any of the
Tenant's obligations hereunder, the Tenant shall be entitled
peaceably and quietly to hold and enjoy the demised premises
without any lawful interruption by the Landlord or any person
claiming under or in trust for the Landlord.
5.2 INSURE
5.2:1 At all times to keep the demised premises and all additions
thereto of which the Tenant has notified the Landlord insured to
the full cost of reinstatement under a policy complying with the
terms of this clause;
5.2:2 To produce to the Tenant on demand (but not more often than once
in every year unless any building on the demised premises is
destroyed or damaged in circumstances that might give rise to an
insurance claim) the insurance policy effected pursuant to this
clause and confirmation of payment of the last premium paid
thereon, or (at the option of the Landlord) evidence from the
insurers of the full terms of the policy and that it is still in
force and to produce to the Tenant as soon as received any
endorsement varying the terms of the insurance policy or a copy
thereof or sufficient evidence of the contents thereof;
5.2:3 An insurance policy complies with the terms of this clause if:-
5.2.3:1 it provides cover against loss or damage by any of the following
risks ("insured risks") to the extent that such cover is for the
time being reasonably available at
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normal rates for buildings of the type and location of the
demised premises for the permitted use and subject to reasonable
excesses and exclusions:- fire, lightning, explosion, earthquake,
landslip, subsidence, riot, civil commotion, aircraft, aerial
devices, storm, flood, impact by vehicles, terrorism and damage
by malicious persons and vandals.
Together with such other risks against which the Landlord shall
from time to time deem it prudent to insure;
5.2.3:2 it insures an appropriate percentage of the rebuilding cost for
professional fees incurred in rebuilding or reinstating any
building destroyed or damaged by an insured risk and two years'
loss of rent;
5.2.3:3 it is effected in some insurance office of repute or at Lloyds.
5.3 REINSTATE
Subject to subclause 7.3 hereof and to all requisite planning
permissions and other consents being first obtained, promptly to
apply the proceeds of any insurance policy effected by the
Landlord covering the demised premises and all additions thereto
in the rebuilding or reinstatement thereof.
5.4 REPAIR
Subject to subclause 7.3 hereof to keep the structure and
exterior of the demised premises and the services and service
conduits serving the demised premises in good repair (fair wear
and tear and any damage caused to the demised premises by the
Tenant or by any person at the demised premises expressly or
impliedly with the authority of the Tenant which is not covered
by any insurance policy effected by the Landlord in relation to
the demised premises excepted). Provided that the Landlord shall
have no obligation to do any work to put the structure and
exterior of the demised premises and the services and service
conduits serving the demised premises into a better state and
condition than they were in at the commencement of the term.
5.5 SHARED FACILITIES
To repair, maintain and cleanse all shared facilities referred to
in clause 4.6 above and, without prejudice to the generality of
the foregoing, to ensure that the Tenant's right of way referred
to in paragraph 1 of the Second Schedule over the roadway,
forecourt area, yard and/or footpaths shown coloured ▇▇▇▇▇ on the
attached plan ("the plan") shall not be obstructed or otherwise
impaired (except when repairing or resurfacing them and then for
no longer than is reasonably necessary) at any time during the
term.
5.6 ASBESTOS
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To assume the responsibilities of the dutyholder pursuant to the
Control of Asbestos at Work Regulations 2002 and, without
prejudice to the generality of the foregoing, to procure that an
asbestos survey is carried out as soon as it is practicable to do
so and at the Landlord's own cost to comply with any measures
required by that survey.
5.7 To indemnify the Tenant against any actions, proceedings, claims,
damages, costs and expenses arising from any breach or
non-observance of clause 5.6 above.
RENT REVIEW
6.1 IN this clause "review period" means the period starting with the
review date up to the end of the term.
6.2 The yearly rent payable under this lease during the review period
shall be a rent equal to the initial rent or such revised rent as
may be ascertained in the manner provided in this clause,
whichever is the greater.
6.3 Such revised rent for the review period may be agreed at any time
between the Landlord and the Tenant or (in the absence of
agreement) determined not earlier than the review date at the
option of the Landlord either by an arbitrator or by an
independent valuer (acting as an expert and not as an
arbitrator), such arbitrator or valuer to be nominated in the
absence of agreement by or on behalf of the President for the
time being of the Royal Institution of Chartered Surveyors on the
application of the Landlord (in exercise of the said option) made
not earlier than six months before the review date and so that in
the case of such arbitration or valuation the revised rent to be
awarded or determined by the arbitrator or valuer shall be such
as he shall decide is the yearly rent at which the demised
premises might reasonably be expected to be let at the review
date:
6.3:1 On the following assumptions at that date:
6.3.1:1 That the demised premises:
6.3.1.1:1 are available to let on the open market without a fine or premium
with vacant possession by a willing landlord to a willing tenant
for a term of 10 years;
6.3.1.1:2 are to be let as a whole subject to the terms of this lease
(other than the amount of the yearly rent hereby reserved, but
including the provisions for review of that rent after five
years);
6.3.1.1:3 are fit and available for immediate occupation;
6.3.1.1:4 may be used for any of the purposes permitted by this lease as
varied or extended by any licence granted pursuant thereto;
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6.3.1:2 That the covenants herein contained on the part of the Tenant
have been fully performed and observed;
6.3.1:3 That no work has been carried out to the demised premises by the
Tenant or any subtenants of the Tenant which has diminished their
rental value and that in case the demised premises have been
destroyed or damaged, they have been fully restored;
6.3.1:4 That no reduction is to be made to take account of any rental
concession which on a new letting with vacant possession might be
granted to the incoming tenant for a period within which his
fitting out works would take place;
6.3:2 But disregarding:
6.3.2:1 Any effect on rent of the fact that the Tenant, any subtenants of
the Tenant or their respective predecessors in title have been in
occupation of the demised premises;
6.3.2:2 Any goodwill attached to the demised premises by reason of the
carrying on thereat of the business of the Tenant, any subtenants
of the Tenant or the businesses of their respective predecessors
in title;
6.3.2:3 Any increase in rental value of the demised premises attributable
to the existence at the review date of any improvement to the
demised premises or any part thereof carried out prior to the
review date with consent where required, otherwise than in
pursuance of an obligation to the Landlord or the Landlord's
predecessors in title, except obligations requiring compliance
with statutes or directions of local authorities or other bodies
exercising powers under statute or Royal Charter, by the Tenant,
any subtenants of the Tenant or their respective predecessors in
title during the term.
6.4 It is hereby further provided in relation to the ascertainment
and payment of revised yearly rent as follows:
6.4:1 In the case of arbitration the arbitration shall be conducted in
accordance with subclause 7.6 hereof, with the further provision
that if the arbitrator nominated pursuant to subclause 6.3 of
this clause shall die or decline to act, the President for the
time being of the Royal Institution of Chartered Surveyors or the
person acting on his behalf may on the application of either the
Landlord or the Tenant by writing discharge the arbitrator and
appoint another in his place;
6.4:2 In the case of determination by a valuer:
6.4.2:1 the fees and expenses of the valuer, including the cost of his
nomination, shall be in the award of the valuer;
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6.4.2:2 the valuer shall afford the Landlord and the Tenant an
opportunity to make representations to him;
6.4.2:3 if the valuer nominated pursuant to subclause 6.3 of this clause
shall die, delay or become unwilling, unfit or incapable of
acting, or if for any reason the President for the time being of
the Royal Institution of Chartered Surveyors or the person acting
on his behalf shall in his absolute discretion think fit, he may
on the application of either the Landlord or the Tenant by
writing discharge the valuer and appoint another in his place;
6.4.2:4 the valuer shall notify both parties of his determination in
writing.
6.5 When the amount of any rent to be ascertained as hereinbefore
provided shall have been so ascertained, memoranda thereof shall
thereupon be signed by or on behalf of the Landlord and the
Tenant and annexed to this lease and the counterpart thereof at
the cost of the Tenant.
6.6:1 If the revised yearly rent payable on and from the review date
has not been ascertained by that date, yearly rent shall continue
to be payable at the rate previously payable, but forthwith upon
the revised yearly rent being ascertained the Tenant shall pay to
the Landlord any shortfall between the yearly rent and the
revised yearly rent payable up to and on the preceding rent
payment day, together with interest on such shortfall from the
review date until the date of payment;
6.6:2 For the purposes of this subclause the revised yearly rent shall
be deemed to have been ascertained on the date when the same has
been agreed between the Landlord and the Tenant or, as the case
may be, the date of the award of the arbitrator or of the
determination by the valuer and "interest" shall be at the base
rate only.
6.7 If either the Landlord or the Tenant shall fail to pay any costs
awarded against it in the case of an arbitration or its share of
the fees and expenses of the valuer under the preceding
provisions within fourteen days of the same being demanded by the
arbitrator or the valuer (as the case may be), the other shall be
entitled to pay the same and the amount so paid shall be repaid
by the party chargeable on demand.
6.8 If the revised yearly rent in respect of the review period has
not been agreed between the Landlord and the Tenant before the
review date and where no agreement has been reached as to the
appointment of an arbitrator or valuer, nor has the Landlord made
any application to the President for the time being of the Royal
Institution of Chartered Surveyors as previously provided, the
Tenant may serve on the Landlord notice in writing referring to
this provision and requiring the Landlord to exercise the option
contained in subclause 6.3 of this clause and if the Landlord
fails so to do within three months after service of such notice,
the Tenant may exercise that option on behalf of the Landlord.
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PROVISOS
7. PROVIDED ALWAYS AND IT IS AGREED AND DECLARED as follows:-
7.1 RE-ENTRY
That if at any time any rent hereby reserved or any part thereof
is fourteen days in arrear (whether formally demanded or not), or
if the Tenant has failed to observe or perform any of the
covenants on the Tenant's part contained herein, or if the Tenant
or any guarantor for the time being of the Tenant being an
individual is adjudicated bankrupt or an interim receiver of his
property is appointed, or being a company goes into liquidation
otherwise than for the purposes of amalgamation or reconstruction
without insolvency, or an administration order is made in respect
of it, or an administrative receiver of it is appointed, then and
in any such case the Landlord may re-enter upon the demised
premises or any part thereof in the name of the whole and
thereupon the term shall absolutely determine, but without
prejudice to any claim by the Landlord against the Tenant, or any
guarantor for the time being of the Tenant for any antecedent
breach of any of the covenants herein contained.
7.2 SUSPENSION OF RENT
7.2:1 This subclause applies while the demised premises or any part
thereof are unsuitable for any authorised use to which the Tenant
normally puts them by reason of damage to the demised premises
caused by any risk covered by the Landlord's buildings insurance
policy for the time being in force in respect of the demised
premises and so long as that policy shall not have been vitiated
or payment of the policy monies withheld or refused in whole or
in part in consequence of any act or default of the Tenant or its
employees, agents, licensees or invitees;
7.2:2 While this subclause applies, but for a maximum period of two
years, the yearly rent hereby reserved or an appropriate
proportion thereof according to the nature and extent of the
damage sustained shall cease to be payable and any rent paid in
advance for a period to which this subclause applies or an
appropriate proportion thereof shall be repaid. And any dispute
as to the application of this subclause shall be determined by
arbitration.
7.3 INSURANCE PROCEEDS
In any case in which, as a result of damage or destruction
covered by an insured risk, the demised premises or any material
part of them cannot be used for any authorised use to which the
Tenant normally puts them and that damage or destruction has not
been fully made good within two years from the date on which it
occurred, the insurance moneys and all interest earned thereon
shall belong to the Landlord absolutely and the term shall cease
and determine, but without
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prejudice to any claim by either party against the other for any
antecedent breach of any of the covenants herein contained.
7.4 VAT
All sums payable hereunder by the Tenant shall be deemed to be
exclusive of value added tax and the amount of any such tax
payable thereon (whether by the Tenant or by the Landlord) shall
be paid by the Tenant to the Landlord.
7.5 RECOVERY OF SUMS PAYABLE BY THE TENANT
All sums payable hereunder by the Tenant other than the rents
hereby reserved shall be recoverable in the same manner as rent
in arrear.
7.6 ARBITRATION
Any dispute or question to be referred to arbitration hereunder
shall be referred in accordance with the Arbitration ▇▇▇ ▇▇▇▇ to
a single arbitrator nominated in default of agreement between the
Landlord and the Tenant by the then President of the Royal
Institution of Chartered Surveyors at the request of either of
them.
7.7 EXCLUSION OF USE/FITNESS FOR PURPOSE WARRANTIES
Nothing in this lease or in any consent granted by the Landlord
hereunder shall imply or warrant that the demised premises
(including any alterations or additions thereto):
7.7:1 may lawfully be used under the Planning Acts (as previously
defined) for the permitted use (or any other purpose which may
subsequently be authorised by the Landlord); or
7.7:2 comply with all statutory and other requirements of any competent
authority in relation to building, health and safety, fire
precautions or otherwise.
7.8 REPRESENTATIONS/ENTIRE UNDERSTANDING
The Tenant acknowledges that this lease has not been entered into
in reliance on any statement or representation made by or on
behalf of the Landlord except any statement or representation
expressly set out in this lease and that this lease embodies the
entire understanding of the parties in relation to the demised
premises and to all the matters dealt with by its provisions.
7.9 COMPENSATION ON VACATING
Any statutory right of the Tenant to claim compensation from the
Landlord on vacating the demised premises shall be excluded to
the extent that the law allows.
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7.10 TENANT'S PROPERTY
If on the expiration of the term, howsoever determined, any
property of the Tenant remains in or on the demised premises:
7.10:1 The Landlord may as the agent of the Tenant sell such property
and the Tenant will indemnify the Landlord against any liability
incurred by the Landlord to any third party whose property shall
have been sold by the Landlord in the mistaken belief held in
good faith (which shall be presumed unless the contrary be
proved) that such property belonged to the Tenant;
7.10:2 If the Landlord, having made reasonable efforts, is unable to
locate the Tenant, the Landlord shall be entitled to retain such
proceeds of sale absolutely unless the Tenant shall claim them
within three months of the date of determination of the term;
7.10:3 The Tenant shall indemnify the Landlord against any damage
occasioned to the demised premises and any actions, claims,
proceedings, costs, expenses and demands made against the
Landlord caused by or related to the presence of such property in
or on the demised premises.
7.11 NOTICES
Section 196 of the Law of Property Act -:1925: shall .apply to
any notice required or authorised by this lease.
7.12 SECURITY OF TENURE EXCLUDED
The provisions of sections 24 to 28 of the Landlord and ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ are excluded in relation to the tenancy hereby granted
by virtue of an Order of the Harlow County Court dated the 20th
May 2004.
7.13 THE CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
No person shall be entitled to enforce any of the provisions of
this lease who would not have been so entitled but for the
enactment of The Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇.
7.14 TENANT'S OPTION TO DETERMINE
If the Tenant wishes to terminate this lease on the review date
and shall give to the Landlord not less than six months' notice
in writing of such wish and shall up to the time such notice
expires reasonably perform and observe the covenants and
conditions contained in this lease, then when such notice expires
the term shall immediately cease and determine, but without
prejudice to any claim by the
20
Landlord against the Tenant or any guarantor for the time being
of the Tenant for any antecedent breach of any of the covenants
contained in this lease.
IN WITNESS of which this lease has been executed as a deed the day and year
first above written.
THE FIRST SCHEDULE
(THE DEMISED PREMISES)
ALL THOSE parcels of land situated at Little Bullocks Farm, Hope End, Takeley,
near ▇▇▇▇▇▇'▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ shown for the purpose of
identification only edged red on the plan Together with the buildings erected
thereon.
THE FIRST SCHEDULE
(ANCILLARY RIGHTS)
1. The right for the Tenant and all persons authorized by the Tenant, in
common with the Landlord and all other persons having a like right, to pass
and ▇▇▇▇▇▇ with or without vehicles to and from the demised premises at all
reasonable times and for all reasonable purposes connected with the use and
enjoyment of the demised premises for the permitted use (but not otherwise)
over and along the private roadway, forecourt area, yard and/or footpaths
(if any) shown coloured ▇▇▇▇▇ on the plan.
2. The right in common as aforesaid to the free passage and running (subject
to temporary interruption for repair, alteration or replacement) of water,
sewage, gas, electricity and telephone services or supplies to and from the
demised premises (insofar as such services or supplies are connected
thereto at the date of this lease) in and through the pipes, sewers, mains,
ducts, conduits, gutters, wires, cables, channels and other conducting
media ("conducting media") in or under neighbouring property (if any) that
now serve the demised premises.
3. The right for the Tenant and all persons authorised by the Tenant, in
common as aforesaid, to park private motor vehicles in a roadworthy
condition in the areas so designated and shown hatched green on the plan.
4. The right of support and shelter (where previously enjoyed by the demised
premises).
THE FIRST SCHEDULE
(RESERVED RIGHTS)
1. The right to the free and uninterrupted passage and running of water,
sewage, gas, electricity and telephone services or supplies from and to
neighbouring property in and through all conducting media which are now or
may during the term be in, on, under or over the demised premises.
21
2. The right to construct and maintain in, on, under or over the demised
premises at any time during the term any conducting media for the provision
of services or supplies to neighbouring property.
3. Full right and liberty at any time after the date of this lease to alter,
raise the height of or rebuild any neighbouring buildings or to erect any
new building of any height on neighbouring property, provided that the same
shall not materially obstruct, affect or interfere with the amenity of or
access to the demised premises or the passage of light and air thereto.
4. All such other rights in the nature of easements or quasi-easements as have
hitherto been exercised or enjoyed over the demised premises by
neighbouring property and the occupier thereof or need to be so enjoyed for
the reasonable use thereof.
SIGNED as a deed on behalf of LARK
TECHNOLOGIES INC., a company incorporated
in the United States by
being [a] person[s] who, in accordance
with the laws of that territory, is/are
acting under the authority of the
company:
Authorised Signatory[ories]
SIGNED as a deed by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ in the presence of:
Witness signature: /s/ P ▇▇▇▇▇▇▇▇
Witness name: P ▇▇▇▇▇▇▇▇
Witness address: 12 Claypits Villas Thaxted
Witness occupation: Warehouse Supervisor
SIGNED as a deed by ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ in the presence of:
Witness signature: /s/ P ▇▇▇▇▇▇▇▇
Witness name: P ▇▇▇▇▇▇▇▇
Witness address: 12 Claypits Villas Thaxted
Witness occupation: Warehouse Supervisor
22