EXHIBIT 10.10
DATED 5th May 2004
PRINTS (UK) QRS 16-1 INC
to
POLESTAR ▇▇▇▇▇ LIMITED
and
POLESTAR ▇▇▇▇▇ BINDERY LIMITED
POLESTAR MAGAZINES & CATALOGUES LIMITED
WATMOUGHS (HOLDINGS) LIMITED
POLESTAR GROUP LIMITED
-------------------------------------------------------
LEASE
of
Premises at Whitehall Road and ▇▇▇▇▇▇▇ Street, Leeds
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Nabarro ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
CONTENTS
CLAUSE SUBJECT MATTER PAGE
LAND AT WHITEHALL ROAD AND ▇▇▇▇▇▇▇ STREET, LEEDS ................................................. 1
1. DEFINITIONS ................................................................................ 1
2. INTERPRETATION ............................................................................. 9
3. DEMISE...................................................................................... 10
4. INSURANCE BY THE LANDLORD .................................................................. 11
5. INSURANCE BY THE TENANT..................................................................... 14
6. TENANT'S OBLIGATIONS........................................................................ 19
Rents....................................................................................... 19
Repair...................................................................................... 19
Decoration ................................................................................. 19
Alterations and additions................................................................... 20
Signs and reletting notices ................................................................ 21
User........................................................................................ 21
Alienation.................................................................................. 22
Assignment ................................................................................. 23
Underletting ............................................................................... 24
Entry ...................................................................................... 25
Planning Acts and Acts generally............................................................ 26
The Construction (Design and Management) Regulations 1994................................... 27
Outgoings, costs and fees................................................................... 28
VAT......................................................................................... 29
Output tax.................................................................................. 29
Input tax................................................................................... 29
General requirements concerning use ........................................................ 29
Surety...................................................................................... 30
Superior interests.......................................................................... 30
Development................................................................................. 31
Indemnity................................................................................... 31
Covenants in freehold title................................................................. 31
Corporate and Financial Covenants........................................................... 31
Registration at HM Land Registry............................................................ 31
Environmental requirements.................................................................. 32
Not to overload ............................................................................ 33
Machinery .................................................................................. 33
Support ............................................ ....................................... 33
Capital Allowances/Industrial Building Allowances........................................... 33
7. LANDLORD'S OBLIGATIONS ..................................................................... 33
8. GENERAL PROVISIONS.......................................................................... 33
Re-entry.................................................................................... 33
Service of notices.......................................................................... 35
Adjoining land.............................................................................. 36
No liability in damages..................................................................... 36
Failure to perform obligations.............................................................. 36
Statutory compensation...................................................................... 36
Rights easements etc. ...................................................................... 36
Waiver of right to forfeit.................................................................. 37
No warranty as to planning ................................................................. 37
i
Tenant's goods left in Premises............................................................. 37
Covenants relating to adjoining premises.................................................... 37
Entire understanding ....................................................................... 37
Landlord and Tenant (Covenants) Act 1995.................................................... 37
Severance................................................................................... 38
Governing law and jurisdiction ............................................................. 38
Requests for information.................................................................... 38
Non-recourse................................................................................ 38
9. SURETY COVENANTS............................................................................ 39
10. CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999................................................ 39
11. LAND REGISTRATION ACT 2002.................................................................. 39
12. CERTIFICATE................................................................................. 39
FIRST SCHEDULE Premises..................................................................... 40
SECOND SCHEDULE Rights and Easements excepted............................................... 41
THIRD SCHEDULE Provisions for rent review................................................... 42
FOURTH SCHEDULE Form of Surety covenant..................................................... 44
FIFTH SCHEDULE Matters to which the demise is subject....................................... 48
SIXTH SCHEDULE PART 1 Landlord's Fixtures and Fittings, Plant and Machinery................. 49
SIXTH SCHEDULE PART 2 Tenant's Fixtures and Fittings, Plant and Machinery................... 51
4. POLESTAR GROUP FINANCIAL COVENANTS.......................................................... 56
EIGHTH SCHEDULE Authorised Guarantee Agreement.............................................. 58
1. DEFINITIONS................................................................................. 58
7. INTERPRETATION.............................................................................. 59
8. GUARANTEE .................................................................................. 60
9. PRINCIPAL DEBTOR ........................................................................... 60
10. TENANT AND GUARANTOR TO TAKE A NEW LEASE.................................................... 60
11. SUPPLEMENTARY PROVISIONS.................................................................... 61
12. SCOPE OF THIS DEED.......................................................................... 64
NINTH SCHEDULE Form of Rent Deposit Deed.................................................... 63
2. DEFINITIONS AND INTERPRETATION.............................................................. 64
3. SUPPLEMENTAL DEED........................................................................... 66
4. DEPOSIT..................................................................................... 66
5. WITHDRAWALS................................................................................. 66
6. INTEREST.................................................................................... 66
7. TRANSFER OF REVERSION....................................................................... 67
8. RELEASE OF RENT DEPOSIT..................................................................... 67
9. CHARGE...................................................................................... 67
10. GENERAL PROVISIONS.......................................................................... 67
11. GUARANTOR................................................................................... 68
12. CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999................................................ 68
13. EXECUTION................................................................................... 68
PURSUANT TO A POWER OF ATTORNEY DATED)............................................................ 69
NAME ............................................................................................ 69
Form of Deed of Substitution of Surety...................................................... 71
14. RELEASE BY THE LANDLORD..................................................................... 73
13. ACCEPTANCE OF LIABILITY BY THE NEW SURETY COMPANY........................................... 73
14. ACCEPTANCE BY THE LANDLORD.................................................................. 73
15. LEASE IN FORCE.............................................................................. 73
ii
16. CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999.................................................. 73
PURSUANT TO A POWER OF ATTORNEY DATED )............................................................ 74
NAME ................... . .......................... ............................................ 74
iii
PARTICULARS
LANDLORD AND TENANT New Tenancy.
(COVENANTS) ▇▇▇ ▇▇▇▇
1. DATE OF THIS DEED 5th May 2004
2. LEASE OR UNDERLEASE Lease
3. LANDLORD PRINTS (UK)
QRS 16-1 INC c/o
Colliers CRE Aquis House,
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇ ▇▇▇
(attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇)
Company Registration Number
4. TENANT POLESTAR ▇▇▇▇▇ LIMITED whose
registered office is at
Marlborough Court,
Sunrise Parkway,
Linford ▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Company Registration Number 2317911
5. SURETY POLESTAR ▇▇▇▇▇ BINDERY LIMITED,
POLESTAR MAGAZINES & CATALOGUES
LIMITED, WATMOUGHS (HOLDINGS)
LIMITED and POLESTAR GROUP LIMITED
whose registered office is at
Marlborough Court, Sunrise
Parkway, Linford ▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Company Registration Numbers 2647729, 2349434, 49840 and
3489002 respectively.
6. PREMISES as shown edged red on the Land at Whitehall Road and
Plan described in the First schedule ▇▇▇▇▇▇▇ Street, Leeds.
7. DATE OF COMMENCEMENT OF TERM The date hereof.
8. TERM From and including the date of
this Lease until and including
4th May 2029.
9. EXPIRY DATE OF TERM 4th May 2029.
▇▇.▇▇▇▇ as it may be reviewed under the One million one hundred and
Third schedule seventy nine thousand four
hundred and ninety six pounds
((pound)1,179,496).
1
11. RENT COMMENCEMENT DATE The date hereof.
12. ANCILLARY RENT The date hereof.
COMMENCEMENT DATE
13. RENT REVIEW DATE(S) As set out in the Third Schedule.
14. INTEREST RATE Four per cent above Lloyds Bank
from Plc's base rate time to time.
15. FIRST REDECORATING YEAR The year commencing on the third
anniversary of date hereof.
16. PERMITTED USER Any use falling within Use Classes
Bl, B2 and B8 of the Town and
Country Planning (Use Classes)
Order 1987.
2
LEASE
LAND REGISTRY
LAND REGISTRATION ACTS 1925-2002
County and District :
Title Number :
Property : Land at Whitehall Road and ▇▇▇▇▇▇▇ Street,
Leeds.
DATE 5th May 2004
PARTIES
(1) The Landlord specified in the Particulars (the "LANDLORD");
(2) The Tenant specified in the Particulars (the "TENANT"); and
(3) The Surety specified in the Particulars (the "SURETY").
IT IS AGREED AS FOLLOWS:
1. DEFINITIONS
In this Lease the following expressions have the following meanings:
"ACT"
means every Act of Parliament (whether or not specifically
named in this Lease) which may be relevant to the Premises its
user or anything on the Premises the persons employed or
having recourse to the Premises whether or not in force at the
date of this Lease and includes any statutory re-enactment or
modification of such Acts of Parliament and any order
regulation directive bye-law rule consent or licence granted
or required under such Acts of Parliament or by any public or
local authority or by any court of competent jurisdiction save
that all references to the Town and Country Planning (Use
Classes) Order 1987 means such order as in force at the date
of this Lease;
1
"ACT OF TERRORISM"
means an act designed to influence the government or
intimidate the public or a section of the public and which is
made for the purpose of advancing a political, religious or
ideological cause;
"ASSETS"
of any Person means all or any part of its business,
undertaking, property, assets, revenues (including any right
to receive revenues) and uncalled capital, wherever situated;
"COMPETENT AUTHORITY"
means any national or local governmental agency, body or other
entity having enforcement or regulatory powers under
Environmental Law;
"CONDUIT"
means any conducting medium or other thing within the Premises
and/or any adjoining or neighbouring premises serving the
Premises and by means of which any facility service or matter
may pass;
"CONTROL"
means in relation to a company the ability or right to
exercise, or the right to acquire, direct or indirect control
over a company's affairs, through the possession of or right
to acquire a majority of the voting rights in that company or
the right to appoint or remove a majority of its board
directors or, in the case of a company whose shares are
publicly traded on any investment exchange, the acquisition by
a third party, acting alone or in concert, of 30 per cent of
more of the voting rights in that company or any action which
has similar effect operating by merger or sale of assets;
"DANGEROUS SUBSTANCES"
means any substance (whether in the form of a solid liquid gas
or vapour) the generation, keeping, transportation, storage,
treatment, use or disposal of which gives rise to a risk of
causing harm to man or to any other living organism or causing
damage to the Environment and includes (but without
limitation) any controlled special, hazardous, toxic,
radioactive or dangerous waste;
"DEBT TEST"
means the Financial Indebtedness of the Tenant during the 12
month period expiring on the Test Date is no more than two
times the Ebitda of the Tenant during such 12 month period.
"EBITDA"
means profit on ordinary activities before exceptional items
interest and taxation adjusted for the adding back of any
depreciation or amortisation according to the
2
annual audited accounts supplied in accordance with paragraph
2.3 of the Seventh Schedule;
"EBITDA TEST"
means that the Landlord is satisfied on each Test Date that
the Tenant has an Ebitda during the 12 month period expiring
on the Test Date of at least two times the aggregate of the
Rents reserved and payable under this Lease together with all
rents payable on all other premises held by the Tenant in
respect of the 12 month period which commences on the Test
Date;
"ENVIRONMENT"
means the environment as defined in section 1(2) of the
Environmental Protection ▇▇▇ ▇▇▇▇;
"ENVIRONMENTAL LAW"
means any and all laws or regulations existing, adopted, made,
commenced, introduced or otherwise brought into force prior to
or after the date of this Lease including, without limitation
all European Community regulations, directives and decisions,
statutes and subordinate legislation, regulations, orders,
ordinances, codes of practice, circulars, guidance notes and
the like in so far as they have the force of law, common law,
administrative, civil, criminal and local laws and byelaws,
judgments, notices, orders, directions, instructions or awards
of any Competent Authority and which have as purpose or effect
the protection of the Environment and/or the prevention of
harm or damage to the Environment, to human health or to the
health of any other living organism or to property and laws or
from Dangerous Substances and regulations governing the
management and control of asbestos containing materials in the
workplace;
"ENVIRONMENTAL PERMITS"
means any and all consents, permits or authorisations required
under Environmental Law in connection with the Tenant's use
and occupation of the Premises;
"FINANCIAL COVENANT TESTS"
means that the Landlord is satisfied on each Test Date that
the Tenant has satisfied the Ebitda Test, the Debt Test and
the Minimum Tangible Worth Test;
"FINANCIAL INDEBTEDNESS"
means any indebtedness for or in respect of:
(a) moneys borrowed;
(b) any amount raised by acceptance under any acceptance credit
facility;
(c) any amount raised pursuant to any note purchase facility or
the issue of bonds, notes, debentures, loan stock or any
similar instrument;
3
(d) the amount of any liability in respect of any lease or hire
purchase contract other than that to the Tenant for use in the
Tenant's business which would, in accordance with generally
accepted accounting procedures, standards and practices in the
United Kingdom consistently applied to be treated as a finance
or capital lease;
(e) receivables sold or discounted (other than any receivables to
the extent they are sold on a non-recourse basis);
(f) any amount raised under any other transaction (including any
forward sale or purchase agreement) having the commercial
effect of a borrowing;
(g) any derivative transaction entered into in connection with
protection against or benefit from fluctuation in any rate or
price (and, when calculating the value of any derivative
transaction, only the ▇▇▇▇ to market value shall be taken into
account);
(h) any counter-indemnity obligation in respect of a guarantee,
indemnity, bond, standby or documentary letter of credit or
any other instrument issued by a bank or financial
institution; and
(i) the amount of any liability in respect of any guarantee or
indemnity for any of the items referred to in paragraphs (1)
to (h) of this definition;
"HAZARDOUS SUBSTANCES"
means any substance (whether in the form of a solid, liquid,
gas or vapour) the generation, keeping, transportation,
storage, treatment, use or disposal of which gives rise to a
risk of causing harm to human health or to the health of any
other living organism or causing harm to the Environment or
damage to property including (without limitation) any
electricity, heat, vibration, noise or other radiation and all
waste;
"HOLDING COMPANY"
has the meaning given to it in sections 736 and 736A of the
Companies ▇▇▇ ▇▇▇▇ (as amended);
"INSURANCE ELECTION NOTICE"
means a written notice of at least one months duration from
the Landlord to the Tenant electing that upon expiration of
such notice, the Tenant shall insure the Premises in
accordance with clause 5;
"INSURANCE RENT"
means all sums payable by the Tenant pursuant to clause 4.2;
"INSURED RISKS"
means the risks insured against under clause 4.1;
"INTEREST"
means interest at the Interest Rate payable from the date of
demand by the Landlord (or if earlier the date at which monies
become due or at which the Landlord expends monies in respect
of which interest is required under this Lease)
4
until the date of payment to the Landlord compounded with
quarterly rests on the usual quarter days;
"INVESTMENT GRADE"
means, in relation to a company, that it has a publicly traded
unsecured senior debt rating of BBBI or better from S&P or Baa
or better from Moody's, or in the event of both of such rating
agencies ceasing to furnish such ratings, a comparable rating
by any rating agency reasonably acceptable to the Landlord;
"LANDLORD"
includes the person entitled for the time being to the
reversion to this Lease;
"LANDLORD'S FIXTURES AND FITTINGS"
means all those fixtures and fittings including without
limitation those referred to in Part 1 of the Sixth Schedule.
"THIS LEASE"
means the Lease granted by this Deed and includes any
Supplemental Document;
"MINIMUM TANGIBLE WORTH"
means the minimum tangible worth of a company based on share
capital plus reserves less intangibles, as independently
verified and signed off by a nationally recognised firm of
independent suitably professionally qualified accountants;
"MINIMUM TANGIBLE WORTH TEST"
means that the Landlord is satisfied that the Tenant has a
Minimum Tangible Worth at all times of not less than Ten
Million Pounds ((pound)10,000,000);
"MOODY'S"
means ▇▇▇▇▇'▇ Investor Services, Inc;
"MORTGAGEE"
means the mortgagee or chargee of the Landlord;
"NET WORTH TEST"
means that the Landlord is satisfied that any proposed
assignees of the Lease has a Minimum Tangible Worth of at
least ten times the Rent then reserved and payable under this
Lease at the time of any proposed assignment as shown by
audited accounts of such proposed assignee for the accounting
period (not to be shorter than one year) immediately preceding
the date of the application to the Landlord for any proposed
assignment;
5
"NEW CONTROLLER"
means any party who takes Control of Polestar ▇▇▇▇▇ Limited
under the terms of paragraph 1.3 of the Seventh Schedule;
"NEW SURETY COMPANY"
means a new surety company or companies substituted for one or
more of the Original Surety Companies;
"ORIGINAL SURETY COMPANIES"
means each of those companies listed in point 5 of the
Particulars;
"PARTICULARS"
means the details on the preceding pages headed "Particulars";
"PERSON"
means an individual, partnership, association, corporation,
limited liability company or other entity;
"PLAN"
means the plan or plans specified in the Particulars;
"PLANNING ACTS"
means the Town and Country Planning ▇▇▇ ▇▇▇▇ the Planning
(Listed Buildings and Conservation Areas) ▇▇▇ ▇▇▇▇ the
Planning (Hazardous Substances) ▇▇▇ ▇▇▇▇ the Planning
(Consequential Provisions) ▇▇▇ ▇▇▇▇ and the Planning and
Compensation ▇▇▇ ▇▇▇▇;
"PLANT"
means all plant and machinery now in or serving the Premises
including (but without limitation) any listed in Part 1 of the
Sixth Schedule and all window cleaning plant and machinery all
electrical systems all fire detection and fire prevention
systems and all control or monitoring systems and
installations [and dock loading bays] (including in each case
all associated Conduits) and together also with all plant and
machinery which may from time to time be installed to replace
any item of the foregoing and provided that all items
comprising tenants fixtures, fittings, plant and machinery
(including, but without limitation those listed in Part 2 of
the Sixth Schedule) shall not be included in this definition
of "Plant";
"POLESTAR GROUP"
means Polestar Group Limited and all its subsidiaries;
"PROFITS TEST"
means that the Landlord is satisfied that any proposed
assignee of this Lease has net profits (before tax) of at
least three times the Rents then reserved and payable
6
under this Lease at the time of any proposed assignment as
shown by audited accounts of such proposed assignee during
each of the three accounting periods (none of which is to be a
period of more than one year) immediately preceding the date
of application to the Landlord for consent to any proposed
assignment;
"QUARTER DAYS"
means 25 March, 24 June, 29 September and 25 December;
"RENT DEPOSIT"
(a) In the event that the Landlord becomes aware that
Polestar ▇▇▇▇▇ Limited has a Minimum Tangible Worth of
less than Ten Million Pounds ((pound)10,000,000), it can
require Polestar ▇▇▇▇▇ Limited by notice in writing to
pay the Rent Deposit and enter into the Rent Deposit
Deed in an amount equal to the shortfall in the Minimum
Tangible Worth from Ten Million Pounds
((pound)10,000,000) up to a maximum Rent Deposit of Five
Million Pounds ((pound)5,000,000) PROVIDED THAT if this
shortfall is solely due to a decline in the profit &
loss reserve of Polestar ▇▇▇▇▇ Limited arising solely
from a decline in profits arising from trading in the
ordinary course of business of Polestar ▇▇▇▇▇ Limited
then the amount of the Rent Deposit shall be limited to
six months' Rents payable under this Lease for the six
month period commencing on the Test Date at which the
Minimum Tangible Worth Test has been determined not to
have been satisfied; and
(b) in a case where the Ebitda Test or Debt Test is not
satisfied means an amount equal to the Rents payable
under this Lease for the six month period commencing on
the Test Date at which the Ebitda Test or Debt Test has
been determined not to have been satisfied;
"RENT DEPOSIT DEED"
means a rent deposit deed in the form attached in the Ninth
schedule to this Lease;
"RENTS"
means the aggregate of the Rent first reserved and the
Insurance Rent (unless the provisions of clause 5 are in
effect) and all other sums whatsoever as become payable by the
Tenant to the Landlord under the provisions of this Lease;
"THE REPORT"
means the report carried out by Environ Limited in respect of
the Property dated April 2004;
"REQUISITE NOTICE"
means a notice in writing to the Tenant 48 hours before any entry is
made on the Premises PROVIDED THAT in the case of an emergency no
notice will be required;
7
"SUBSIDIARY"
has the meaning given to it in sections 736 and 736A of the
Companies ▇▇▇ ▇▇▇▇ (as amended);
"SUPPLEMENTAL DOCUMENT"
means any deed agreement licence memorandum letter or other
document which in any way varies this Lease or which is or
becomes supplemental to this Lease whether or not expressed to
be so;
"S&P"
means Standard & Poor's Ratings Services, a Division of the
McGraw Hill, Companies, Inc;
"SUPPLIER"
means a supplier to the Tenant of plant, equipment or
apparatus now in or serving the Premises (including without
limitation any listed in Part 2 of the Sixth Schedule);
"SURETY"
means the Original Surety Companies or any other company or
companies substituted for or added to the Original Surety
Companies pursuant to the provisions of the Seventh Schedule
of this Lease and includes (in respect of any person who has
guaranteed to the Landlord the Tenant's obligations contained
in this Lease) if it is an individual his personal
representatives and provided that if any of the Original
Surety Companies are replaced by any other company or
companies as Surety pursuant to this Lease, then the company
so replaced shall cease to be a Surety for the purposes of
this Lease;
"TENANT"
includes the Tenant's successors in title and if it is an
individual his personal representatives;
"TENANT'S GROUP"
means the Tenant and all its subsidiaries any Holding Company
of the Tenant and all subsidiaries of any such Holding
Company;
"TERM"
means the term mentioned in the Particulars and includes any
extension or continuation whether by statute or at common law;
"TERMINATION DATE"
means the date of expiration or sooner determination of the
Term;
8
"TEST DATE"
means 30 September in each year of this Lease;
"VAT"
means Value Added Tax or any similar tax from time to time in
addition to it replacing it or performing a similar fiscal
function;
"VAT ACT"
means the Value Added Tax ▇▇▇ ▇▇▇▇ and any other statutes
concerned with VAT and any directives and regulations adopted
by the Council of the European Communities which relate to
VAT;
"VAT ELECTION"
means an election made by any person under paragraph 2 of
schedule 10 to the VAT Act which has the effect of a waiver of
exemption on any VAT Supply made by the Landlord or by the
representative member of any VAT Group of which the Landlord
is a member in relation to the Premises;
"VAT GROUP"
means a group of companies within the meaning of section 43 of
the VAT Act;
"VAT SUPPLY"
has the meaning which "supply" has for the purpose of the VAT
Act and any reference to a VAT Supply by or to any person
shall include a reference to a supply by or to the
representative member of any VAT Group of which the person is
a member.
2. INTERPRETATION
In this Lease:
2.1 The details and descriptions appearing in the Particulars are included and
form part of this Lease.
2.2 If there is more than one person included in the expression "Tenant" or
"Surety" the covenants by them will be joint and several.
2.3 Where any act is prohibited the Tenant will not allow or suffer such act
to be done.
2.4 Where the Landlord or any other person exercises any rights to enter the
Premises under this Lease unless specifically provided by this Lease to
the contrary the person exercising such right will make good any damage
caused to the Premises and to any Tenant's fixtures, fittings, and any
goods or items on the Premises but (provided such right of entry is
exercised in accordance with the relevant provisions of this Lease)
neither such person nor the Landlord will be liable for any other
compensation.
9
2.5 The clause headings (except for the definitions) are for ease of reference
and are not to be used for the purposes of construing this Lease.
2.6 References to clause numbers or schedules or paragraphs in schedules mean
the clauses of or schedules to or paragraphs in schedules to this Lease.
2.7 Words importing persons include firms companies and corporations and vice
versa.
2.8 Words importing one gender will be construed as importing any other
gender.
2.9 Words importing the singular will be construed as importing the plural and
vice versa.
3. DEMISE
The Landlord DEMISES to the Tenant (at the request of the Surety) ALL
THOSE the Premises EXCEPTING AND RESERVING to the Landlord the rights and
easements specified in the Second schedule TO HOLD the Premises to the
Tenant from and including the Date of Commencement of Term for the Term
SUBJECT to all rights easements privileges restrictions and stipulations
of whatever nature affecting the Premises and FURTHER SUBJECT to the
covenants and other matters referred to in the Fifth schedule YIELDING AND
PAYING:
3.1 Yearly and proportionately for any fraction of a year
3.1.1 from and including the Rent Commencement Date the Rent; and
3.1.2 from and including the Rent Review Date such other Rent as may become
payable under the provisions of the Third Schedule
in each case to be paid by equal quarterly payments in advance on the
Quarter days in every year the first such payment to be made on the Rent
Commencement Date and to be in respect of the period from and including
the Rent Commencement Date to and including the day immediately preceding
the next following quarter day.
3.2 From and including the Ancillary Rent Commencement Date:
3.2.1 the Insurance Rent;
3.2.2 all interest and VAT and other sums whatsoever as become payable by the
Tenant to the Landlord under the provisions of this Lease.
which are all reserved as rent.
3.3 If required by the Landlord the Tenant shall pay the rent reserved by
clause 3.1 and any VAT on it by banker's standing order to a bank account
in the United Kingdom which the Landlord has notified in writing to the
Tenant.
10
4. INSURANCE BY THE LANDLORD
The Landlord and the Tenant COVENANT one with the other as follows:
4.1 Subject to the Tenant paying the premium in accordance with the provisions
of this clause the Landlord covenants to insure the Premises (including
tenant's and trade fixtures and fittings if agreed pursuant to the proviso
to this clause 4.1) subject to such excesses exclusions or limitations as
the Landlord or its insurers may reasonably require (and as are reasonable
having regard to the prevailing practice at the relevant time in the
London insurance market) in such reputable insurance office or with such
underwriters and through such agency as the Landlord may from time to time
decide in the full reinstatement value of the Premises including
architects' and surveyors' and other professional fees and incidental
expenses including if the Landlord in its sole discretion from time to
time sees fit VAT on the rebuilding costs and such fees against:
4.1.1 loss or damage by fire explosion storm tempest (including lightning) flood
earthquake burst pipes impact heave subsidence and (in peacetime) aircraft
and articles dropped therefrom riot terrorism civil commotion and
malicious damage impact by road vehicles and such other risks against
which the Landlord may from time to time deem necessary to insure or in
respect of which the Tenant (acting reasonably having regard to the
availability of such other risks in the London insurance market at the
time of such request) requires insurance against;
4.1.2 the loss of rent payable under this Lease from time to time (having regard
to any review of rent which may become due under this Lease) for three
years or such longer period as the Landlord may from time to time
reasonably consider to be sufficient or as the Tenant may request and the
Landlord may approve (acting reasonably) for the purposes of planning and
carrying out any such reinstatement;
4.1.3 public liability of the Landlord arising out of or in connection with any
matters involving or relating to the Premises
PROVIDED THAT the Landlord is not under any obligation to insure or
reinstate any fixtures or fittings installed by the Tenant which have
become part of the Premises unless the Tenant has notified the Landlord in
writing both of such installation and the reinstatement value of such
fixtures and fittings for insurance purposes and also the Landlord shall
have agreed in writing with the Tenant to effect the insurance of such
fixtures and fittings at the cost of the Tenant ("Tenant's Fixtures and
Fittings Insurance").
4.2 The Tenant will pay to the Landlord on demand the amount of the premium
for insuring the Premises against the Insured Risks from the Ancillary
Rent Commencement Date.
4.3 If any part of the Premises is damaged by any of the Insured Risks and
becomes unfit for occupation or use and the policy or policies of
insurance shall not have been vitiated or payment refused in whole or in
part as a result of some act or default of the Tenant or anyone under its
control then a fair proportion of the Rent will be suspended until the
Premises are fit for occupation or use or if earlier until the monies
received by the Landlord in respect of loss of rent insurance have been
exhausted. In calculating the fair proportion (if the Tenant has paid the
Rent due for the quarter then current) a refund will be made in respect of
the proportion of the Rent from the date of damage or destruction until
the day immediately
11
preceding the next usual quarter day and any dispute regarding the cesser
of rent will be referred to a single arbitrator to be appointed in default
of agreement upon the application of either party by the President for the
time being of the Royal Institution of Chartered Surveyors under the
Arbitration ▇▇▇ ▇▇▇▇.
4.3.1 If the Premises are damaged by any of the Insured Risks then subject to:
(a) clauses 4.4.3, 4.5 and 4.6; and
(b) the Landlord being able to obtain all necessary consents (the
"CONSENTS") which the Landlord shall use reasonable endeavours to
obtain
the Landlord will lay out all applicable proceeds of such insurance in
reinstating (so far as practicable) the Premises and the Tenant will pay
to the Landlord within 14 days of demand the amount equivalent to any
policy excess as referred to in clause 4.1 which may be applicable to such
insurance PROVIDED THAT the Landlord's obligation under this clause 4.3.1
will be satisfied if (subject to the Consents) the Landlord provides in
the premises so reinstated accommodation at least as convenient and
commodious as is reasonably practicable but such premises need not
necessarily be identical to the Premises as they existed prior to such
damage or destruction.
4.3.2 If the payment of any insurance monies is refused as referred to in clause
4.3.3 the Tenant will pay to the Landlord within 14 days of demand the
amount so refused.
4.3.3 The Landlord will not be obliged to comply with the obligations under
clause 4.3.1 if payment of the insurance monies has been refused in whole
or in part by reason of any act or default of the Tenant or anyone under
its control and the Tenant has not complied with its obligations in
clauses 4.3.1 and 4.3.2.
4.4 For the purposes of clause 4.5 the expression "SUPERVENING EVENTS" means:
4.4.1 the Landlord has failed (despite using its reasonable endeavours) to
obtain the Consents;
4.4.2 any of the Consents have been granted subject to a condition which (in all
the circumstances) it would be unreasonable to expect the Landlord to
comply with;
4.4.3 some defect or deficiency on the site upon which the rebuilding or
reinstatement is to take place would mean that the same could only be
undertaken at a cost that would be unreasonable in all the circumstances;
4.4.4 the Landlord is unable to obtain access to such site for the purposes of
rebuilding or reinstating;
4.4.5 the rebuilding or reinstating is prevented by war act of God government
action strike or lockout; or
4.4.6 any other circumstance beyond the reasonable control of the Landlord.
4.5 The Landlord will not be liable to rebuild or reinstate the Premises if
and for so long as such rebuilding or reinstating is prevented by
Supervening Events and if rebuilding or reinstatement shall be impossible
impracticable or frustrated by a Supervening Event all relevant insurance
monies (so far as not laid out in rebuilding or reinstating and save any
sums in respect of Tenant's Fixtures and Fittings Insurance which shall
belong to and shall be paid to the Tenant) shall as between the Landlord
and the Tenant be receivable by the
12
Landlord for its own use and benefit absolutely and the obligation on the
part of the Landlord to rebuild or reinstate will thereupon be deemed to
have been discharged.
4.6 The Tenant will not do anything which may prejudice any policy of
insurance for the time being in force in respect of any part of the
Premises or any nearby premises or which may result in such insurance
becoming void or voidable or the rate of premium under such insurance
being increased and the Tenant will at all times comply with all
reasonable requirements and recommendations of the insurers of the
Premises notified in writing to the Tenant save that notification shall
not be required if such requests or recommendations are of a nature
generally found in the London insurance market.
4.7 To notify the Landlord immediately the Tenant undertenant or any other
lawful occupier vacates the Premises.
4.8 The Tenant will keep the Premises supplied with such fire fighting
equipment as the insurers of the Premises or the competent fire authority
may require or as the Landlord may reasonably require and maintain such
equipment to the satisfaction of all such persons.
4.9 The Tenant will not store explosive or unusually inflammable substances
or goods at the Premises or obstruct the access to any fire fighting
equipment or the means of escape from or over the Premises or lock any
fire door and if anything happens which might affect any insurance policy
relating to the Premises of which the Tenant is or should be aware the
Tenant will immediately give notice to the Landlord.
4.10.1 At the reasonable written request of the Tenant the Landlord will produce
evidence of such insurance and of the payment of the last premium.
4.10.2 The Landlord will use reasonable endeavours to procure that the interest
of the Tenant is noted on the insurance policy either by specific noting
or a general noting clause.
4.10.3 The Landlord will notify the Tenant of any material changes in the risks
covered and the terms of the insurance policy from time to time, save
where any such change reflects prevailing practice at the relevant time
in the London insurance market.
4.10.4 The Landlord will use reasonable endeavours to procure that the insurers
waive all rights of subrogation against the Tenant.
4.11 The Tenant will reimburse the Landlord within 14 days of demand the
reasonable cost of valuations of the Premises for insurance purposes
which the Landlord may cause to be made from time to time but not more
frequently than once in every three years.
4.12 The Tenant warrants that prior to the execution of this Lease it has
disclosed to the Landlord in writing 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 insurance of the Premises.
4.13 In the event of damage to the Premises as referred to in clause 4.3 and
if the reinstatement of the Premises has not commenced within two years
of such damage and is not thereafter diligently proceeded with the Tenant
shall be entitled to terminate this Lease on giving three months' written
notice to the Landlord and such termination shall thereafter take effect
if
13
such reinstatement has not so commenced and is not diligently proceeded
with within such three month period and such termination shall be without
prejudice to either party's rights against the other for any preceding
breach of this Lease.
4.14 ACT OF TERRORISM
4.14.1 If the Premises or any part thereof or the access thereto shall be
destroyed or damaged by an Act of Terrorism so as to render the Premises
unfit for occupation and use then only to the extent an Act of Terrorism
is not an Insured Risk under the terms of clause 4.1 then the Landlord
shall within 12 months of such Act of Terrorism give written notice to
the Tenant indicating whether or not the Landlord intends to reinstate
the Premises.
4.14.2 If the Landlord intends to reinstate the Premises then, subject to:
(a) the Landlord obtaining any necessary planning and other permission,
consents, licences and approvals (which the Landlord shall use all
reasonable endeavours to obtain but shall not be obliged to
institute or pursue any appeal);
(b) the necessary labour and materials being and remaining available
(which the Landlord shall use its reasonable endeavours to obtain
as soon as reasonably practicable),
the Landlord shall use reasonable endeavours to reinstate the Premises as
quickly as may reasonably be practicable at its own expense in accordance
with the foregoing provisions.
4.14.3 If the Landlord serves written notice upon the Tenant pursuant to clause
4.14.1 indicating that the Landlord does not intend to reinstate as
aforesaid, this Lease shall forthwith determine without prejudice to any
claim by either party against the other in respect of any antecedent
breach of covenant.
4.14.4 If the Landlord shall fail to give notice to the Tenant in accordance
with clause 4.14.1 above, the Tenant may at any time after the expiry of
a period of 12 months following the Act of Terrorism forthwith determine
this Lease by written notice to the Landlord but without prejudice to any
claim by either party against the other in respect of any antecedent
breach of covenant.
4.14.5 All insurance monies payable will belong to the Landlord.
5. INSURANCE BY THE TENANT
5.1 The Landlord may, at any time during the continuance of this Lease, serve
an Insurance Election Notice on the Tenant whereupon the following
provisions of this clause shall have effect upon the expiration of the
Insurance Election Notice and clause 4 shall cease to operate.
5.2 The obligation on the part of the Tenant to pay Insurance Rent pursuant
to clauses 3.2.1 and 4.2 shall cease.
5.3 The Tenant shall:
5.3.1 insure the Premises and maintain such insurance in the joint names of the
Landlord and the Tenant and if requested by the Landlord with cover also
being in the joint names of
14
any Mortgagee or with the interest of any Mortgagee being noted on the
policy (and with the Landlord being first loss payee), for their full
reinstatement value, including the costs of demolition and site clearance,
temporary works, compliance with local authority requirements in
connection with any works of repair or reinstatement, architects',
surveyors' and other professional fees and other incidental expenses, and
in each case with due allowance for inflation and VAT, against;
(a) those risks set out at clause 4.1.1 above and such other risks as
the Landlord may from time to time reasonably require insurance
against (the "TENANT'S INSURED RISKS"); and
(b) the loss of rent payable under this Lease from time to time (having
regard to any review of rent which may become due under this Lease)
for three years or such longer period as the Landlord or the Tenant
may from time to time reasonably consider to be sufficient for the
purposes of planning and carrying out any such reinstatement;
(c) public liability of the Landlord arising out of or in connection
with any matter involving or relating to the Premises;
5.3.2 such insurance to be approved in advance by the Landlord in accordance
with clause 5.3.3 below;
5.3.3 within 14 days of receiving the Insurance Election Notice, and in any
event prior to taking out the said insurance, provide the Landlord with
full details of the proposed insurance for the Landlord's approval (such
approval not to be unreasonably withheld or delayed) including, but not
limited to, details of the insurer or underwriter, the form of policy, any
excesses exclusions and limitations under the policy, details of the full
reinstatement value including all professional fees, and details of all
other amounts insured under the policy;
5.3.4 at least two months prior to the renewal or replacement of any existing
policy produce details of any proposed renewal or replacement policy
together with evidence of payment of the premium to the Landlord and also
at any other time at the request of the Landlord, produce details of the
terms of the current insurance policy and evidence of the payment of the
current premium to the Landlord;
5.3.5 notify the Landlord of any material changes in the risks covered and the
terms of the insurance policy from time to time;
5.3.6 pay within 14 days of demand any increase in the insurance premium for any
adjoining property of the Landlord which is attributable to the use of the
Premises, or anything done or omitted to be done on the Premises by the
Tenant or any other occupier of the Premises;
5.3.7 pay within 14 days of demand the reasonable costs incurred or payable by
the Landlord in connection with the Landlord obtaining any valuation of
the Premises for insurance purposes, as long as such valuation is made at
least three years after any previous such valuation;
5.3.8 comply with the requirements of the insurers relating to the Premises;
15
5.3.9 not do or omit to do anything which may make the insurance of the
Premises or of any adjoining property of the Landlord, taken out by the
Landlord or any superior landlord, void or voidable;
5.3.10 give the Landlord immediate written notice of any damage to or
destruction of the Premises by a Tenant's Insured Risk;
5.3.11 pay the Landlord within 14 days of demand the reasonable costs incurred
by the Landlord in connection with any insurance claim relating to the
Premises arising from any insurance taken out by the Landlord;
5.3.12 notify the Landlord immediately the Tenant, undertenant, or any other
lawful occupier vacates the Premises;
5.3.13 keep the Premises supplied with such fire fighting equipment as the
insurers of the Premises or the competent fire authority may require or
as the Landlord may reasonably require and maintain such equipment to the
satisfaction of all such persons; and
5.3.14 not store explosive or unusually inflammable substances or goods at the
Premises or obstruct the access to any fire fighting equipment or the
means of escape from or over the Premises or lock any fire door and if
anything happens which might affect any insurance policy relating to the
Premises of which the Tenant is or should be aware the Tenant will
immediately give notice to the Landlord.
5.4 REINSTATEMENT
5.4.1 If the Premises are damaged by any of the Tenant's Insured Risks then
subject to:
(a) clauses 5.4.3, 5.5 and 5.6;
(b) the Landlord being able to obtain all necessary consents (the
"CONSENTS") which the Landlord shall use reasonable endeavours to
obtain;
(c) the Landlord receiving the insurance monies; and
(d) the Tenant making good any shortfall in the insurance monies;
the Landlord will lay out all applicable proceeds of such insurance
(except those relating to fees and loss of rent) in reinstating (so far
as practicable) the Premises and the Tenant will pay to the Landlord
within 14 days of demand the amount equivalent to any policy excess which
may be applicable to such insurance PROVIDED THAT the Landlord's
obligation under this clause 5.4.1 will be satisfied if (subject to the
Consents) the Landlord provides in the premises so reinstated
accommodation at least as convenient and commodious as is reasonably
practicable but such premises need not necessarily be identical to the
Premises as they existed prior to such damage or destruction.
5.4.2 If the payment of any insurance monies is refused as referred to in
clause 5.4.3 the Tenant will pay to the Landlord within 14 days of demand
the amount so refused.
5.4.3 The Landlord will not be obliged to comply with the obligations under
clause 5.4.1 if payment of the insurance monies has been refused in whole
or in part by reason of any act or default of the Tenant or anyone under
its control and the Tenant has not complied with its obligations in
clauses 5.4.1 and 5.4.2.
16
5.5 For the purposes of clause 5.6 the expression "SUPERVENING EVENTS" means:
5.5.1 the Landlord has failed (despite using its reasonable endeavours) to
obtain the Consents;
5.5.2 any of the Consents have been granted subject to a condition which (in all
the circumstances) it would be unreasonable to expect the Landlord to
comply with;
5.5.3 some defect or deficiency on the site upon which the rebuilding or
reinstatement is to take place would mean that the same could only be
undertaken at a cost that would be unreasonable in all the circumstances;
5.5.4 the Landlord is unable to obtain access to such site for the purposes of
rebuilding or reinstating;
5.5.5 the rebuilding or reinstating is prevented by war act of God government
action strike or lockout; or
5.5.6 any other circumstance beyond the reasonable control of the Landlord.
5.6 The Landlord will not be liable to rebuild or reinstate the Premises if
and for so long as such rebuilding or reinstating is prevented by
Supervening Events and if rebuilding or reinstatement shall be impossible
impracticable or frustrated by a Supervening Event all relevant insurance
monies (so far as not laid out in rebuilding or reinstating and save in
respect of any sums insured in respect of Tenant's fixtures and fittings
and other goods or items on the Premises which shall belong and be paid to
the Tenant) shall as between the Landlord and the Tenant be receivable by
the Landlord for its own use and benefit absolutely and the obligation on
the part of the Landlord to rebuild or reinstate will thereupon be deemed
to have been discharged.
5.7 In the event of damage to the Premises as referred to in clause 5.4 and if
the reinstatement of the Premises has not commenced within two years of
such damage and is not thereafter diligently proceeded with the Tenant
shall be entitled to terminate this Lease on giving three months' written
notice to the Landlord and such termination shall thereafter take effect
if such reinstatement has not so commenced and is not diligently proceeded
with within such three month period and such termination shall be without
prejudice to either party's rights against the other for any preceding
breach of this Lease.
5.8 LANDLORD'S INSURANCE
5.8.1 If the Tenant fails to produce satisfactory evidence that it is
complying with this clause, or the Landlord otherwise has reasonable
grounds for believing that the Tenant is or may be in breach of its
obligations in this clause, then the Landlord may effect and maintain
insurance of the Premises against any of the Insured Risks at its
discretion and the Tenant shall pay to the Landlord within 14 days of
demand the cost to the Landlord of effecting such insurance.
5.8.2 Immediately upon the Landlord giving notice to the Tenant that the
Landlord has insured the Premises against any of the Insured Risks, the
Tenant shall not maintain or take out any insurance of the Premises for
such risks in its own name.
5.8.3 Save as provided for above all insurance moneys payable under any
insurance taken out by the Landlord shall belong to the Landlord.
17
5.9 If any part of the Premises is damaged by any of the Insured Risks and
becomes unfit for occupation or use and the policy or policies of
insurance shall not have been vitiated or payment refused in whole or in
part as a result of some act or default of the Tenant or anyone under its
control and the Landlord has received the monies in respect of loss of
rent referred to in clause 5.3.1(b) from the insurers then a fair
proportion of the Rent will be suspended until the Premises are fit for
occupation or use or if earlier until the monies received by the Landlord
in respect of loss of rent insurance have been exhausted. In calculating
the fair proportion (if the Tenant has paid the Rent due for the quarter
then current) a refund will be made in respect of the proportion of the
Rent from the date of damage or destruction until the day immediately
preceding the next usual quarter day and any dispute regarding the cesser
of rent will be referred to a single arbitrator to be appointed in
default of agreement upon the application of either party by the
President for the time being of the Royal Institution of Chartered
Surveyors under the Arbitration ▇▇▇ ▇▇▇▇.
5.10 ACT OF TERRORISM
5.10.1 If the Premises or any part thereof or the access thereto shall be
destroyed or damaged by an Act of Terrorism so as to render the Premises
unfit for occupation and use then only to the extent an Act of Terrorism
is not an Insured Risk under the terms of clause 4.1 then the Landlord
shall within 12 months of such Act of Terrorism give written notice to
the Tenant indicating whether or not the Landlord intends to reinstate
the Premises.
5.10.2 If the Landlord intends to reinstate the Premises then, subject to:
(a) the Landlord obtaining any necessary planning and other
permission, consents, licences and approvals (which the Landlord
shall use all reasonable endeavours to obtain but shall not be
obliged to institute or pursue any appeal);
(b) the necessary labour and materials being and remaining available
(which the Landlord shall use its reasonable endeavours to obtain
as soon as reasonably practicable),
the Landlord shall use reasonable endeavours to reinstate the Premises as
quickly as may reasonably be practicable at its own expense in accordance
with the foregoing provisions.
5.10.3 If the Landlord serves written notice upon the Tenant pursuant to clause
5.10.1 indicating that the Landlord does not intend to reinstate as
aforesaid, this Lease shall forthwith determine without prejudice to any
claim by either party against the other in respect of any antecedent
breach of covenant.
5.10.4 If the Landlord shall fail to give notice to the Tenant in accordance
with clause 5.10.1 above, the Tenant may at any time after the expiry of
a period of 12 months following the Act of Terrorism forthwith determine
this Lease by written notice to the Landlord but without prejudice to any
claim by either party against the other in respect of any antecedent
breach of covenant.
5.10.5 All insurance monies payable will belong to the Landlord.
18
6. TENANT'S OBLIGATIONS
THE Tenant COVENANTS with the Landlord:
6.1 RENTS
To pay the rents reserved by this Lease without deduction or set-off
whether legal or equitable in accordance with its terms and if the Rent
first reserved under this Lease is not paid on the due date or the
remainder of the Rents under this Lease are not paid within 14 days of the
due date (whether formally demanded or not) or any other sums due under
this Lease are unpaid for more than 14 days after the due date (whether
formally demanded or not) or if any sums due under this Lease are refused
as a result of any breach or any anticipated breach of covenant by the
Tenant to pay Interest.
6.2 REPAIR
6.2.1 At all times to repair and to keep the Premises (including any part
unbuilt upon) in good and substantial repair and condition and to yield up
the same at the Termination Date in accordance with the covenants by the
Tenant contained in this Lease, damage by any of the Insured Risks or by
Act of Terrorism (to the extent that an Act of Terrorism is not an Insured
Risk) excepted save to the extent that payment of the insurance monies is
withheld in whole or in part by reason solely or in part of any act or
default of the Tenant undertenant or anyone under their control and such
repairing obligation shall include an obligation on the part of the Tenant
to:-
(a) maintain the garden border on Whitehall Road and the east wall of
the Reel Store and the brick wall between the Reel Store and ▇▇▇▇
House; and
(b) ensure that a regular monitoring programme is implemented (at a
minimum of six monthly intervals) in relation to any cracking which
may exist within ▇▇▇▇▇ House (defined in clause 6.6.1 (c)) and that
any such cracking is repaired forthwith.
6.2.2 To keep the Premises and all Conduits serving the Premises in a clean and
tidy condition and properly cleansed and free from obstruction and in
particular to clean all the windows (both inside and out) and all other
glass in the Premises monthly.
6.2.3 To comply with the terms of all warranties guarantees or similar documents
which apply to all or any part of the Premises.
6.2.4 DECORATION
Without prejudice to the generality of the foregoing
(a) During the First Redecorating Year and every succeeding fifth year
and in the last six months before the Termination Date but not twice
in consecutive years to paint and otherwise treat as the case may be
all the inside wood and metal work of the Premises usually painted
or otherwise treated in a workmanlike manner to the reasonable
satisfaction of the Landlord and also to clean all other inside
parts of the Premises and to paint or paper in a workmanlike manner
all walls and ceilings of the Premises usually painted or papered as
the case may be such work in the last six months before the
Termination Date to be executed in such colours patterns and
materials as the Landlord may reasonably require.
19
(b) During the First Redecorating Year and every succeeding third year
and in the last six months before the Termination Date but not twice
in consecutive years to clean paint redecorate repaint and otherwise
treat all the outside wood metal brick and cement work and other
external surfaces of the Premises in a workmanlike manner and in
colours approved by the Landlord (such approval not to be
unreasonably withheld or delayed).
(c) Where painting is required under the preceding clauses 6.2.4(a) and
6.2.4(b) it will consist of two coats of good quality paint and in
every case materials of good quality only will be used.
6.2.5 To repair or replace forthwith by articles of similar kind and quality any
fixtures fittings or plant or equipment (other than tenant's or trade
fixtures and fittings) in the Premises which shall become in need of
repair or replacement.
6.2.6 To keep any part of the Premises which may not be built upon adequately
surfaced in good condition swept clean and all landscaped areas properly
cultivated and free from weeds and to ensure all grassed areas are mown as
and when necessary so that the same shall have a neat and tidy appearance
at all times.
6.2.7 REPAIR OF NEIGHBOURING STREETS
(a) To keep the roadway known as ▇▇▇▇▇▇ Street in good and substantial
repair and condition and free from obstructions.
(b) To reimburse the Landlord any costs or expenses which the Landlord
may be required to incur in connection with the repair or
maintenance of Lord Terrace or Lord Street.
6.3 ALTERATIONS AND ADDITIONS
6.3.1 Not to demolish any building or do anything which would mean the Premises
are not a commercial building or structure within the terms of Section
271(1)(b) of the Capital Allowances ▇▇▇ ▇▇▇▇.
6.3.2 Subject to the preceding sub-clause not to make any alterations or
additions to any part of the Premises or erect any new building or make
any additions or alterations to the Plant and not to cut maim or remove
any parts of the Premises and not to make any change in the existing
design or appearance of the Premises or to carry out any electrical work
in the Premises or make any alteration in or extension to the electrical
installations in the Premises without (in all cases) obtaining the written
prior consent of the Landlord such consent not to be unreasonably withheld
or delayed and the Landlord and the Tenant agree that if reasonable the
Landlord may require the security or guarantee referred to in clause 6.3.5
in respect of reinstatement PROVIDED ALWAYS THAT the Tenant may:
(a) make minor or routine alterations to the electrical installations
or carry out maintenance work to these without the consent of the
Landlord subject to supplying to the Landlord within one month of
such alterations or maintenance work a set of drawings and
sufficient detail outlining the nature of such alterations or
maintenance work; and
(b) without the written consent of the Landlord install and move at the
Premises and remove from the Premises internal demountable
partitions which are not in any
20
way attached to or otherwise affect the structure of the Premises or
the Plant in or upon the Premises subject to supplying to the
Landlord within one month of their being installed moved or removed
(as the case may be) two complete sets of drawings showing such
internal demountable partitions.
(c) make any non-structural alterations required to divide the Premises
into any Permitted Part, provided that the Landlord's consent is
obtained as provided for above in respect of any such alterations
6.3.3 Without prejudice to clause 6.3.2 any alteration or addition to the
electrical installations in the Premises shall comply with the Regulations
from time to time issued by the Institute of Electrical Engineers.
6.3.4 If the Tenant makes any alterations or additions to the Premises in breach
of this clause 6.3 then in addition to any other remedies and powers
available to the Landlord (and without prejudice to them) the Landlord may
remove and reinstate such additions or alterations and the proper cost of
carrying out such work will be repaid to the Landlord by the Tenant within
14 days of demand.
6.3.5 Unless the Landlord directs the Tenant in writing to the contrary to
remove prior to the Termination Date any alterations additions or
improvements made to the Premises remove any plant and machinery installed
at the Premises by the Tenant or any other occupier and forthwith make
good any damage caused by such removal to the Landlord's reasonable
satisfaction PROVIDED THAT:
(a) The Tenant shall irrespective of the foregoing provisions be
entitled to remove all tenant's fixtures and fittings and all plant
and machinery at any time during the Term PROVIDED THAT the Tenant
makes good forthwith all damage caused to the Premises by such
removal to the Landlord's reasonable satisfaction.
(b) If the Landlord requires the Tenant shall provide adequate
security or guarantees to fully secure the liability to reinstate
any alterations additions or improvements in accordance with the
terms of this clause such security or guarantee to be provided at
the time of obtaining the Landlord's consent in accordance with
clause 6.3.2.
6.4 SIGNS AND RELETTING NOTICES
6.4.1 Not to display any signs or notices at the Premises which can be seen from
outside the Premises without the Landlord's approval, not to be
unreasonably withheld or delayed.
6.4.2 At the end of the Term to remove any signs at the Premises and make good
any damage caused by that removal to the reasonable satisfaction of the
Landlord.
6.5 USER
6.5.1 Subject to the following sub-clause not to use the Premises except for any
use falling within the Permitted User as the Landlord may first approve in
writing (such approval not to be unreasonably withheld).
6.5.2 Notwithstanding the previous sub-clause the Tenant shall procure that at
all times throughout the Term the Premises shall be a commercial building
or structure within the terms of Section 217(1)(b) of the Capital
Allowances ▇▇▇ ▇▇▇▇.
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6.6 ALIENATION
6.6.1 In this clause 6.6 the following expressions have the following meanings:
(a) "AUTHORISED GUARANTEE AGREEMENT"
has the meaning defined in and for the purposes of section 16 of the
Landlord and Tenant (Covenants) ▇▇▇ ▇▇▇▇ which shall be made by
separate deed in the form set out in the Eighth Schedule;
(b) "PERMITTED OCCUPIER"
means a company which is a member of the Tenant's Group; and
(c) "PERMITTED PART"
means part of:-
(i) that part of the Premises known as Reel Store (as shown edged
green on Plan 2 attached to this Lease ("REEL STORE"); and
(ii) that part of the Premises known as ▇▇▇▇▇ House (as shown edged
pink on Plan 2 attached to this Lease ("▇▇▇▇▇ HOUSE"); and
(iii) that part of the Premises known as Press Hall No. 1 (as shown
edged orange on Plan 2 attached to this Lease ("PRESS HALL No
1"); and
(iv) that part of the Premises known as Press Hall No 2 (as shown
edged yellow on Plan 2 attached to this Lease ("PRESS HALL NO
2").
6.6.2 Not to hold on trust for another or assign charge or underlet part with or
share possession or occupation of the whole of the Premises or any part or
agree so to do or permit any person to occupy the same save (subject to
this clause 6.6) by way of:
(a) an assignment charge or underlease of the whole; or
(b) an underlease of a Permitted Part
Provided Always that there shall at no time be subject to more than three
separate occupations (the occupation of the Tenant and a Permitted
Occupier or either of them counting as one) for each of the parts of the
Premises known as Reel Store, ▇▇▇▇▇ House, Press Hall No 1 or Press Hall
No 2.
6.6.3 Not to assign or charge or underlet the whole of the Premises or underlet
a Permitted Part except as provided in this clause 6.6 and then only with
the prior written consent of the Landlord (such consent not to be
unreasonably withheld or delayed and subject in the case of an assignment
to clauses 6.6.6 to 6.6.8 and in the case of an underletting to clauses
6.6.9 to 6.6.13 (inclusive)).
6.6.4 Not to sub-underlet the whole of the Premises or to sub-underlet a
Permitted Part.
6.6.5 Not to charge the Tenants fixtures fittings plant and machinery
(including, without limitation, the items referred to in Part 2 of the
Second Schedule) without the prior written consent of the Landlord (such
consent not to be unreasonably withheld or delayed) and the terms of such
Landlord's consent may require that if the Tenant is in default or in
breach of all or any of its obligations contained in this Lease then the
Tenant shall, immediately upon the Landlord's request, procure the
Supplier within 6 months of
22
[POLESTAR ▇▇▇▇▇ PREMISES PLAN]
[POLESTAR ▇▇▇▇▇ PREMISES PLAN]
[POLESTAR ▇▇▇▇▇ PREMISES PLAN]
[POLESTAR ▇▇▇▇▇ PREMISES PLAN]
[POLESTAR ▇▇▇▇▇ PREMISES PLAN]
receipt of such request to remove any equipment supplied to the Tenant
within or exclusively serving the Premises.
6.6.6 ASSIGNMENT
For the purpose of section 19(1A) of the Landlord and ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ it
is agreed that the Landlord shall not be regarded as unreasonably
withholding consent to any proposed assignment of the whole of the
Premises if it is withheld on the ground (and it is the case) that any one
or more of the circumstances mentioned below exist (whether or not such
withholding is solely on such ground or on that ground together with other
grounds):
(a) in the Landlord's reasonable opinion the proposed assignee is not or
will not be able to pay the Rents reserved by this Lease as and when
they fall due and/or to observe and perform the obligations of the
Tenant under this Lease and any Supplemental Document;
(b) there are arrears of the Rents reserved hereunder at the date of the
application for the assignment to the proposed assignee and/or the
proposed date for completion of the licence giving the Landlord's
consent;
(c) the proposed assignee is a member of the Tenant's Group;
(d) the Net Worth Test and the Profits Test have not been satisfied;
(e) the Surety has not entered or will not enter into a deed, no later
than the date of the instrument of the proposed assignment, which
deed is to provide for a guarantee of all the obligations of the
Tenant contained in any Authorised Guarantee Agreement entered into
pursuant to clause 6.6.7(a) below
PROVIDED that if the proposed assignee satisfies the Net Worth Test and
the Profits Test the Landlord shall not be entitled to withhold consent on
the grounds set out in clause 6.6.6(a) above
6.6.7 On any assignment:
(a) the Tenant shall no later than the date of the instrument of the
proposed assignment, enter into an Authorised Guarantee Agreement in
the form set out in the Eighth Schedule;
(b) if the Landlord reasonably so requires the Tenant will obtain one or
more acceptable sureties for the proposed assignee who will covenant
with the Landlord in the terms (mutatis mutandis) set out in the
Fourth schedule;
(c) if the Landlord reasonably so requires the proposed assignee will
prior to the assignment enter into such reasonable rent deposit
arrangement and/or provide such additional reasonable security for
performance by the proposed assignee of its obligations under this
Lease as the Landlord may reasonably require; and
6.6.8 Clauses 6.6.6 and 6.6.7 shall operate without prejudice to the right of
the Landlord to refuse such consent on any other ground or grounds where
such refusal would be reasonable or to impose further reasonable
conditions upon the grant of consent where such imposition would be
reasonable, but without prejudice to the proviso in clause 6.6.6.
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6.6.9 UNDERLETTING
Not to underlet the whole of the Premises or a Permitted Part at a fine
or a premium or at a rent less than the open market rent of the Premises
or the Permitted Part (as the case may be) in each case at the time of
such underlease.
6.6.10 Upon the Landlord consenting to an underletting of the Premises or of a
Permitted Part to procure that the underlease contains:
(a) an unqualified covenant on the part of the undertenant with the
Tenant that the undertenant will not assign or charge (or agree so
to do) any part or parts of the premises (as distinct from the
whole) demised by such underlease ("THE UNDERLET PREMISES");
(b) an unqualified covenant on the part of the undertenant with the
Tenant that the undertenant will not assign or charge (or agree so
to do) the whole of the Underlet Premises without the previous
consent in writing of the Landlord such consent not to be
unreasonably withheld or delayed;
(c) an unqualified covenant on the part of the undertenant with the
Tenant that the undertenant will not part with or agree so to do or
share possession of or permit any person to occupy the whole or any
part of the Underlet Premises (save in the case of any informal
sharing of occupation by the undertenant with a company in the same
group of companies (as defined under sections 736 and 736A of the
Companies ▇▇▇ ▇▇▇▇ (as amended)) in a manner that does not create a
landlord and tenant relationship between the parties);
(d) an unqualified covenant on the part of the undertenant with the
Tenant that the undertenant will not underlet the whole or any part
of the Underlet Premises;
(e) an unqualified covenant by the undertenant (which the Tenant
undertakes to use all reasonable endeavours to enforce) to prohibit
the undertenant from doing or suffering any act or thing upon or in
relation to the Underlet Premises which will contravene any of the
Tenant's obligations in this Lease PROVIDED THAT
(i) any undertenant shall not be obliged to comply with the terms
of the Seventh Schedule; and
(ii) in the case of any underletting of ▇▇▇▇▇ House it may be used
for office purposes and in the course of any underletting of
the Reel Store it may be used for warehouse purposes
notwithstanding clause 6.5.2.
(f) provision for review of the rent (in an upwards direction only)
reserved by the underlease on open market terms;
(g) a condition for re-entry on breach of any covenant on the part of
the undertenant or any other ground in respect of the undertenant
specified in clause 8.1;
(h) in the case of a Permitted Part a provision authorised by a court
of competent jurisdiction excluding the provisions of sections 24
to 28 (inclusive) of the Landlord and ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ from the
tenancy thereby created; and
(i) any underlease shall be granted at a rent which is not less than
the full open market rental value of the Premises (or in the case
of an underletting of a permitted part of the Permitted Part;
24
(j) The Tenant shall not enter into any collateral deed nor give any
side letter varying or relieving the undertenant from any terms
required by clause 6.6.9 to be contained in the underlease
(k) in the case of an underletting of a Permitted Part such underlease
shall be for a term not exceeding five years.
6.6.11 To procure in any underletting of the Premises or of a Permitted Part
that the rent under such underletting is reviewed in accordance with the
terms of such review and to procure that the Landlord's representations
as to the rent payable thereunder are made to any independent person
appointed to determine such review.
6.6.12 Not to vary the terms of or accept any surrender of any underlease
permitted under this clause 6.6 (or agree so to do) without the
Landlord's prior written consent (such consent not to be unreasonably
withheld or delayed) and not to commute or waive any rents payable by any
such underlease.
6.6.13 Notwithstanding anything contained in this clause 6.6 the Tenant may
share occupation of the Premises with a Permitted Occupier PROVIDED THAT:
(a) no tenancy is created by such occupation;
(b) the rights of the Permitted Occupier immediately determine on it
ceasing to fall within the definition of a Permitted Occupier;
(c) the Tenant will give notice to the Landlord within 14 days of the
commencement and termination of each sharing of occupation of the
Premises.
6.6.14 From time to time during the Term to furnish to the Landlord on demand
full particulars of all derivative interests of or in the Premises
however remote or inferior and within one month after the transmission or
charging of any interest under this Lease or derivative of it or the
execution of any document dealing with such interest to leave with the
Landlord two certified copies of the deed instrument or other document
evidencing or effecting such dealing or transmission and to pay a
reasonable registration fee and to procure that every document creating
an underletting of the Premises or of a Permitted Part contains a similar
covenant by the undertenant with the Tenant and the Landlord PROVIDED
THAT registration of any such deed instrument or other document will be
evidence of notification of such transaction to the Landlord but will not
require the Landlord to consider the terms of such transaction of the
said deed instrument or other document and will not be evidence that it
has done so.
6.7 ENTRY
6.7.1 To permit the Landlord and all persons authorised by it at all reasonable
times upon Requisite Notice and (save in emergency) upon making a prior
appointment with the Tenant to enter and remain upon the Premises
together with work people plant and materials:
(a) to examine their condition and to take schedules of repairs and the
like and inventories of fixtures and fittings plant and machinery;
(b) to execute any works of construction repair decoration or of any
other nature within the Premises or the Plant or the Conduits
pursuant to clause 6.7.2 and to
25
carry out any repairs, decorations or other work which the Landlord
must or may carry out under the provisions of this Lease upon or to
the Premises;
(c) to exercise without interruption or interference any of the rights
excepted or reserved to the Landlord by this Lease;
(d) in the last six months before the Termination Date to affix a sign
or signs indicating that the Premises are to let unless the Tenant
is actively pursuing its right to renew the Lease and has taken all
necessary steps to renew the Lease (including those required by
statute); and
(e) for any other reasonable purpose connected with the interest of the
Landlord in the Premises including (but without limitation) for the
purpose of valuing or disposing of any interest of the Landlord or
any superior landlord or doing anything which may be necessary to
prevent a forfeiture of any superior lease for the time being
affecting the Premises.
6.7.2 If as a result of an inspection or otherwise the Landlord becomes aware of
any breaches of covenant by the Tenant under this Lease the Landlord may
give notice in writing thereof to the Tenant and within two months after
every such notice or sooner if reasonably required the Tenant will remedy
such breach of covenant in accordance with such notice and the covenants
contained in this Lease to the reasonable satisfaction of the Landlord AND
if the Tenant fails within 21 days of such notice or immediately in case
of emergency to commence and diligently and expeditiously to continue to
comply with such notice or if the Tenant at any time makes material
default in the performance of any of the covenants contained in this Lease
for or relating to the repair decoration or maintenance of the Premises
then (without prejudice to the right of re-entry and forfeiture contained
in this Lease) the Landlord may enter upon the Premises under clause 6.7.1
and carry out or cause to be carried out all or any of the works referred
to in such notice or remedy the default of the Tenant and all proper costs
of all such works and all proper expenses incurred in remedying such
defaults in each case shall be paid by the Tenant to the Landlord within
fourteen days of demand.
6.8 PLANNING ACTS AND ACTS GENERALLY
6.8.1 To comply with all Acts including (but without limitation) the Planning
Acts or the carrying out by the Tenant of any operations on or use of the
Premises.
6.8.2 At its expense to obtain from the appropriate authorities all licences
consents and permissions as may be required for the carrying out by the
Tenant of any operations on or use of any part of the Premises.
6.8.3 Not at any time during the Term to do or permit or suffer anything which
shall be a contravention of the Planning Acts or of any licences consents
authorisations permissions and conditions (if any) from time to time
granted or imposed under such Acts nor to permit anything which would be a
contravention thereof and to comply with the same and to indemnify the
Landlord in respect of such acts or omissions.
6.8.4 Not to make any application for planning permission without first
producing a copy of the same and obtaining the prior written consent of
the Landlord to such application which consent will not be unreasonably
withheld or delayed.
26
6.8.5 Unless the Landlord directs otherwise in writing to carry out before the
Termination Date any works stipulated to be carried out to the Premises
as a condition of any planning permission which may have been granted
during the Term and implemented by the Tenant or any other person whether
or not the date by which the planning permission requires such works to
be carried out falls within the Term.
6.8.6 In any case where a planning permission is granted subject to conditions
and if the Landlord reasonably so requires to provide security for the
compliance with such conditions and such planning permission shall not be
implemented until such security has been provided.
6.8.7 If the Landlord reasonably believes that the reversionary value of the
Premises may be adversely affected and if reasonably required by the
Landlord but at the cost of the Tenant to appeal against any refusal of
planning permission or the imposition of any conditions on a planning
permission in either case made pursuant to an application therefor under
this clause 6.8 provided that the Tenant shall not be obliged to appeal
unless it has received an opinion from a planning counsel of at least ten
years standing that an appeal would have at least a 70% chance of
succeeding.
6.8.8 Not to do anything in the Premises or cause them to be occupied in such a
way as will cause any part of any other land owned or occupied by the
Landlord not to comply with any Act.
6.8.9 Not at any time during the Term to do permit or suffer on the Premises
any act or cause or permit to be present on the Premises any matter or
thing which may cause loss to the Landlord by reason of any Environmental
Law.
6.8.10 Within seven days of the receipt to give full particulars to the Landlord
of any permission notice order or proposal relevant to the Premises or to
the use thereof given to the Tenant or the occupier of the Premises
(together with a copy of any notice permission letter or document) under
any Act and without delay to take all necessary steps to comply with such
notice insofar as it relates to the Tenant's use and occupation of the
Premises and also at the reasonable request of the Landlord to make or
join with the Landlord in making such objections and representations
against or in respect of any such notice order or proposal as aforesaid
as the Landlord reasonably requires.
6.9 THE CONSTRUCTION (DESIGN AND MANAGEMENT) REGULATIONS 1994
6.9.1 In this clause "REGULATIONS" means the Construction (Design and
Management) Regulations 1994 and "FILE" means the Health and Safety file
for the Premises and works carried out to them, required by the
Regulations.
6.9.2 In respect of any works carried out by or on behalf of the Tenant
or any undertenant or other occupier of the Premises (including any works
of reinstatement which may be carried out after the end of the Term) to
which the Regulations apply, to:
(a) comply in all respects with the Regulations and procure that any
person involved in carrying out such works complies with the
Regulations; and
(b) act as the client in respect of those works and serve a declaration
to that effect on the Health and Safety Executive pursuant to
Regulation 4 of the Regulations and give a copy of it to the
Landlord.
27
6.9.3 To:
(a) maintain and make the File available to the Landlord for inspection
at all times;
(b) on request provide copies of the whole or any part of the File to
the Landlord; and
(c) hand the File to the Landlord at the end of the Term.
6.9.4 To obtain copyright licences which are needed for the Tenant lawfully to
comply with this clause 6.9 and such licences shall:
(a) be granted on a royalty free non exclusive basis;
(b) allow the Landlord and any superior landlord and anyone deriving
title through or under them to take further copies of such
documents;
(c) be obtained without cost;
(d) allow any such person to grant sub-licences on similar terms;
6.10 OUTGOINGS, COSTS AND FEES
6.10.1 To pay and discharge all existing and future rates taxes duties charges
assessments impositions and outgoings whatsoever and whether or not of a
non-recurring nature (called "OUTGOINGS") which now are or may be charged
levied assessed or imposed upon the Premises or upon the owner or
occupier thereof (other than those arising as a result of receipt of Rent
or of any disposition of or a dealing by the Landlord with the interest
expectant on the reversion upon the determination of the Term) and to pay
bear and discharge the proportion properly attributable to the Premises
of any outgoings as may be charged levied assessed or imposed upon any
premises of which the Premises form part (such proportion to be properly
determined by the Landlord's surveyor acting reasonably) and not to make
any claim for relief against Outgoings payable in respect of the Premises
without the Landlord's prior written consent, such consent not to be
unreasonably withheld or delayed.
6.10.2 In the absence of direct assessment on the Premises to repay to the
Landlord the proportion properly attributable to the Premises (such
proportion to be properly determined by the Landlord's surveyor acting
reasonably) within 14 days of demand all charges in respect of gas
electricity steam soil water telephone electrical impulses and other
services supplied to or consumed in the Premises.
6.10.3 To pay to the Landlord all proper (and in the case of expenditure in
clause 6.10.3(d) reasonable) costs charges and expenses (including
professional advisers' costs and fees and bailiffs' commissions) properly
incurred by the Landlord or any superior landlord:
(a) in or in contemplation of any proceedings under section 146 or 147
of the Law of Property ▇▇▇ ▇▇▇▇ including the preparation and
service of notices under that Act (notwithstanding forfeiture is
avoided otherwise than by relief granted by the Court);
(b) in the preparation and service of a schedule of dilapidations at
any time during or within six months after the Term;
(c) in connection with any breach of covenant by or the recovery of
arrears of Rents due from the Tenant under this Lease; and
28
(d) in respect of any application for consent required by this Lease
whether or not such consent is granted or the application is
withdrawn.
6.11 VAT
6.11.1 OUTPUT TAX
6.11.2 Where this Lease requires the Tenant to pay repay reimburse or provide
any amount or other consideration in respect of a VAT Supply to the
Tenant by the Landlord that amount or other consideration will be deemed
to be exclusive of any VAT chargeable on that VAT Supply (whether by
virtue of a VAT Election made or to be made or otherwise) and the Tenant
will when paying or providing the relevant amount or other consideration
also pay to the Landlord a sum equal to that VAT, provided that it has
first received a valid tax invoice.
6.11.3 INPUT TAX
Where this Lease requires the Tenant to pay repay reimburse or provide
any amount or other consideration in respect of a VAT Supply to the
Landlord the Tenant will pay to the Landlord a sum equal to any VAT
charged to the Landlord on that VAT Supply less any part of that VAT for
which the Landlord obtains credit or which the Landlord is otherwise able
to recover as input tax.
6.12 GENERAL REQUIREMENTS CONCERNING USE
6.12.1 Not to use any part of the Premises for any noxious noisy or offensive
trade or business nor for any illegal or immoral act or purpose nor for
any sale by auction nor for gaming and not to commit any nuisance or do
anything which causes damage or disturbance to the Landlord or any other
person.
6.12.2 Not to allow empty containers or rubbish of any description to accumulate
upon the Premises nor to discharge into any Conduit any deleterious
matter or any substance which might be or become a source of danger or
injury to the drainage system of the Premises or any other property or
person and not to overload or obstruct any Conduits.
6.12.3 Not to use any part of the Premises in such manner as to subject it to
any strain or interference which is in excess of that which the Premises
were designed to bear and not to install machinery on the Premises which
shall cause noise or cause vibration in excess of statutory limits.
6.12.4 Not to do anything on the Premises which might reasonably be expected to
produce directly or indirectly corrosive fumes or vapours or moisture or
humidity in excess of that which the Premises were designed to bear.
6.12.5 To give written notice to the Landlord of any defect in the Premises
which might give rise to an obligation on the Landlord to do or refrain
from doing any act or thing in order to comply with the duty of care
imposed on the Landlord pursuant to the Defective Premises Act 1972 and
at all times to display and maintain all notices which the Landlord may
from time to time reasonably require to be displayed at the Premises in
connection with that Act.
29
6.12.6 Not to play or use in the Premises any musical instrument loudspeaker
tape recorder gramophone radio or other equipment or apparatus that
produces sound that may be heard outside the Premises.
6.12.7 Not to stop up or paint out any windows at the Premises and not to permit
any encroachment upon the Premises or the acquisition of any new right to
light passage drainage or other easement over any part of the Premises
and to give written notice to the Landlord of any threat of such
encroachment or acquisition as soon as the Tenant becomes aware of it and
at the Landlord's written request and cost to take such action as the
Landlord may reasonably require to prevent such encroachment or
acquisition.
6.12.8 To preserve for the benefit of the Landlord and the Premises and not to
permit to be prejudiced or abandoned all and any existing rights to light
doorway path passage drainage pipe or other rights or easements
appertaining to or reputed to appertain to the Premises and at the
Landlord's written request and cost to take such action as the Landlord
may reasonably require to preserve such rights or easements.
6.12.9 To ensure that at all times the Landlord has written notice of the name
home address and home telephone number of at least two keyholders of the
Premises.
PROVIDED THAT notwithstanding the foregoing provisions of this clause
6.12, the proper use of the Premises by the Tenant for the Permitted Use
shall not constitute a breach of any of the foregoing provisions.
6.13 SURETY
6.13.1 To procure that any person who has guaranteed to the Landlord the
Tenant's obligations contained in this Lease joins with the Tenant and
becomes a party to any Supplemental Document to consent to the Tenant
entering into such Supplemental Document and to confirm that its
covenants remain in full force and effect in respect of the Lease as
varied or amended by such Supplemental Document.
6.13.2 Within 28 days of the death during the Term of any person who has
guaranteed to the Landlord the Tenant's obligations contained in this
Lease or of such person becoming bankrupt or having a receiving order
made against him or being a company passing a resolution to wind up or
entering into liquidation then to give notice thereof to the Landlord and
(without prejudice to clause 8.1) if so required by the Landlord at the
expense of the Tenant within 28 days to procure some other person
reasonably acceptable to the Landlord to execute a guarantee in respect
of the Tenant's obligations contained in this Lease in the form set out
in the Fourth schedule.
6.14 SUPERIOR INTERESTS
Any provision for consent or approval of the Landlord will be deemed to
be subject to the consent or approval of all superior landlords which
shall be subject to provisions for consent or approval which do not
conflict with whose contained herein and the proper costs and expenses of
obtaining such consents (whether or not consent is forthcoming) will be
repaid by the Tenant to the Landlord on demand.
30
6.15 DEVELOPMENT
Notwithstanding anything contained in this Lease not to do to or at the
Premises anything which imposes on the Landlord any liability to pay tax
under any statute arising from the disposal or development of land and so
far as the law allows to indemnify the Landlord against all liability for
any such tax and any loss or damage arising from any development by or for
the Tenant or any person claiming through or under the Tenant.
6.16 INDEMNITY
The Tenant will keep the Landlord fully indemnified from and against all
actions demands proceedings claims damages losses costs expenses and
liabilities arising directly or indirectly out of the existence state of
repair or user of the Premises any breach of the Tenant's covenants
contained in this Lease or any failure to comply with any Act and against
any liability for any tax levy charge or other fiscal imposition of
whatsoever nature including penalties and interest on overdue tax (and
penalties for failure to give appropriate notices and information under
Acts) for which the Landlord shall be liable as a result of any material
development carried out on the Premises by the Tenant or its permitted
underlessees and shall within 14 days of demand pay to the Landlord the
amount of any such sum.
6.17 COVENANTS IN FREEHOLD TITLE
To observe and perform the covenants contained or referred to in the Fifth
Schedule and to pay to the Landlord on demand all proper costs and
expenses incurred by the Landlord (including professional advisors' fees)
in complying with any such covenants and to indemnify and keep indemnified
the Landlord in respect thereof.
6.18 CORPORATE AND FINANCIAL COVENANTS
6.18.1 Polestar ▇▇▇▇▇ Limited (company number 2317911) and the Surety shall
comply with all the covenants and agreements on its part set out in the
Seventh Schedule and shall procure that all terms of the Seventh Schedule
are complied with at all times.
6.18.2 Polestar ▇▇▇▇▇ Limited (company number 2317911) and the Surety shall
within 30 days of each Test Date produce evidence satisfactory to the
Landlord that the Financial Covenant Tests have been satisfied, in
accordance with the terms of the Seventh Schedule.
6.19 REGISTRATION AT HM LAND REGISTRY
6.19.1 The Tenant shall register this Lease and any assignment or other
registerable disposition of this Lease at Land Registry within one month
of the date of the grant of this Lease or the date of the instrument of
the assignment or other disposition requiring registration (as the case
may be).
6.19.2 The Tenant shall notify the Landlord of completion of the registration at
Land Registry of the grant, assignment or other registerable disposition
of this Lease (as the case may be) within one month of the registration
having been completed.
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6.20 ENVIRONMENTAL REQUIREMENTS
6.20.1 The Tenant covenants with the Landlord as follows:
(a) to ensure at all times throughout the Term that the Tenant complies
in all respects with Environmental Law in its use and occupation of
the Premises and, in particular, but without limitation, that it
obtains and complies with all Environmental Permits required for the
storage, use or disposal of any Hazardous Substances at, on or from
the Premises;
(b) not at any time during the Term to cause or permit the deposit,
spillage or release onto the surface or into the sub-soil of the
Premises of any Hazardous Substances otherwise than in accordance
with the terms of an Environmental Permit;
(c) not at any time during the Term to do or permit to be done anything
on the Premises which could cause disturbance to the operation of or
damage to the fabric of any above ground or under ground storage
tanks and associated lines or pipe work at the Premises;
(d) in the event of a breach of its obligations contained in (a), (b) or
(c) above, to notify the Landlord immediately in writing of same and
forthwith and with all due speed and diligence to carry out such
works of investigation and remediation as may be necessary to remedy
the consequences of the breach and to reinstate the Premises to
their condition prior to the occurrence of the breach (taking into
account at all times all proper requirements of the Landlord with
regard to the nature and scope of such works) PROVIDED THAT the
Landlord shall have the option at its sole discretion to assume
conduct of any such works in which case the Tenant shall reimburse
the Landlord within seven days of a written demand in respect of all
properly incurred costs, fees, (including professional fees) and
expenses incurred in carrying out such works;
(e) the Tenant has been provided with a copy of the Report;
(f) the Tenant agrees that it will assume full responsibility for
meeting all liabilities, claims, costs and expenses arising or
incurred during the Term in respect of or in any way related to the
presence in, on, over or under the Premises of any Hazardous
Substances (regardless of when such Hazardous Substances first came
to be present in, on, over or under the Premises) including
liability for and the costs of any works of remediation (including
on-going monitoring) which may be required in order to mitigate or
prevent a liability under Environmental Law or as may be requested
by a Competent Authority at any time in the future and that it will
comply with all requirements of any Competent Authority made at any
time thereunder;
(g) to ensure that it complies in all respects with the requirements of
the Control of Asbestos at Work Regulations insofar as they relate
to the Premises within three months of the date of this Lease.
(h) within three months of the date of this Lease to provide secondary
containment around the waste chemical storage area, the compactor
area and the solvent storage to the reasonable satisfaction of the
Landlord;
32
6.21 NOT TO OVERLOAD
Not to place or keep on in the Premises any heavy articles or structures
in such position or in such quantity or weight or otherwise in such manner
howsoever as to overload or cause damage to or be likely to overload or
cause damage to the Premises.
6.22 MACHINERY
Not to install or suffer to be installed any machinery upn the Premises or
any part thereof which shall be unduly noisy or cause dangerous vibrations
or be a nuisance to the Landlord or the owners or lessees or occupiers of
any adjoining or neighbouring premises save that the installation upon or
within the Premises of printing presses and binding equipment in
compliance with statutory requirements shall not in any event constitute a
breach of this clause.
6.23 SUPPORT
Not to do anything or suffer anything to be done on the Premises which
would remove support from any adjoining land buildings or structures or
endanger such land buildings or structures in any way whatsoever.
6.24 CAPITAL ALLOWANCES/INDUSTRIAL BUILDING ALLOWANCES
The Tenant shall give the Landlord any assistance which the Landlord
reasonably requests to assist it in making and pursuing a claim for
capital allowances and/or industrial building allowances in respect of the
Premises
7. LANDLORD'S OBLIGATIONS
THE Landlord COVENANTS with the Tenant (but so that no liability shall
attach to the Landlord in respect of any breach by the Landlord of its
obligations under this Lease after the reversion immediately expectant on
the determination of the Term has ceased to be vested in the Landlord)
that the Tenant paying the Rents reserved and observing and performing its
covenants and conditions contained in this Lease may peaceably and quietly
hold and enjoy the Premises without any lawful interruption by the
Landlord or any person rightfully claiming through under or in trust for
it.
8. GENERAL PROVISIONS
PROVIDED ALWAYS AND IT IS AGREED AND DECLARED as follows:
8.1 RE-ENTRY
Notwithstanding and without prejudice to any other remedies and powers
contained in this Lease or otherwise available to the Landlord if:
8.1.1 the Rents reserved or any part thereof are unpaid for 21 days after
becoming payable whether formally demanded or not; or
33
8.1.2 any covenant on the Tenant's part or condition contained in this Lease is
not materially performed or observed and in any event any minor breaches
of repairing and decorating covenants in this Lease shall not constitute a
breach for the purpose of this clause 8.1.2; or
8.1.3 in relation to the Tenant (or the Surety) for the time being (being a
company):
(a) it has in respect of it a moratorium come into force under
section 1(A) and schedule A1 of the Insolvency ▇▇▇ ▇▇▇▇ or its
directors resolve to make a proposal for voluntary arrangement under
the Insolvency ▇▇▇ ▇▇▇▇ or it has meetings convened for the approval
of a voluntary arrangement under the Insolvency ▇▇▇ ▇▇▇▇ or a
proposal for a voluntary arrangement is made in respect of it under
the Insolvency ▇▇▇ ▇▇▇▇ or a voluntary arrangement in respect of it
under the Insolvency ▇▇▇ ▇▇▇▇ is approved; or
(b) it or its directors resolve to appoint an administrator of it or to
apply to court for an administration order in respect of it or an
application for an administration order in respect of it is made or
any step pursuant to Insolvency ▇▇▇ ▇▇▇▇ schedule B1 and/or the
Insolvency Rules 1986 is taken to appoint an administrator to it out
of court or it enters administration; or
(c) it suffers the appointment of a Law of Property ▇▇▇ ▇▇▇▇, court
appointed or other receiver or receiver and manager, or similar
officer appointed over or in relation to the whole of its
undertaking, property, revenue or assets or any part thereof, or any
person holding security over all or any of its undertaking,
property, revenue or assets takes possession of them or any part of
them; or
(d) it or its directors resolve to wind-up it up whether as a voluntary
liquidation or a compulsory liquidation, or they take steps under
the Insolvency ▇▇▇ ▇▇▇▇ and/or the Insolvency Rules 1986 to wind it
up voluntarily or to apply to the court for a winding-up order in
respect of it or it goes into liquidation within the meaning of that
term under section 247 Insolvency ▇▇▇ ▇▇▇▇ or it has a winding-up
petition presented against it (save for a winding-up petition which
is frivolous, vexatious or an abuse of legal process and which is
withdrawn or dismissed within 7 days of it being served on it; or
(e) an application is made under section 425 of the Companies ▇▇▇ ▇▇▇▇
(as amended) or a proposal is made which could result in such an
application other than one for the purposes of an amalgamation or
reconstruction resulting in a solvent corporation and previously
approved in writing by the Landlord; or
(f) it enters or proposes to enter into any composition, compromise,
moratorium, scheme or other similar arrangement with its creditors
or any of them, whether or not under the Insolvency ▇▇▇ ▇▇▇▇; or
(g) it is dissolved, or is removed from the Register of Companies, or
ceases to exist (whether or not capable of reinstatement or
reconstitution); or
(h) it is unable to pay or has no reasonable prospect of being able to
its debts within the meaning of section 123 Insolvency ▇▇▇ ▇▇▇▇, but
disregarding the references therein to proving it to the court's
satisfaction; or
34
(i) it is or becomes subject to, takes or has taken against it or in
relation to it, or any or all of its assets, any equivalent,
analogous, corresponding or similar finding, steps, process or
proceeding to those in clauses 8.1.3(a) to 8.1.3(h) inclusive in any
jurisdiction, whether or not any finding, step, process or
proceeding has been taken against or in relation to it, or any or
all of its assets in England and Wales.
8.1.4 in relation to the Tenant (or the Surety) for the time being (being an
individual or being more than one individual any one of them):
(a) it is the subject of a bankruptcy petition or an interim receiver is
appointed of his property or a bankruptcy order is made against him;
or
(b) it is the subject of an application for an interim order under part
VIII of the Insolvency ▇▇▇ ▇▇▇▇; or
(c) it enters into any composition, scheme, compromise, moratorium or
other similar arrangement with its creditors or any of them, whether
or not under the Insolvency ▇▇▇ ▇▇▇▇; or
(d) it suffers the appointment of a Law of Property ▇▇▇ ▇▇▇▇, court
appointed or other receiver or receiver manager, or similar officer
appointed over or in relation to the whole of its undertaking,
property, revenue or assets, or any part thereof, or any person
holding security over all or any of its undertaking, property,
revenue or assets takes possession of them or any part of them; or
(e) it is unable to pay or has no reasonable prospect of being able to
pay its debts within the meaning of sections 267 and 268 of the
Insolvency ▇▇▇ ▇▇▇▇; or
(f) it is or becomes subject to, takes or has taken against it or in
relation to it, or any or all of its assets, any equivalent,
analogous, corresponding or similar finding, step, process or
proceeding to those in clauses 8.1.4(a) to 8.1.4(e) inclusive in any
jurisdiction, whether or not any finding, step, process or
proceeding has been taken against or in relation to it, or any or
all of its assets in England and Wales;
8.1.5 if the Tenant and/or the Surety fail to comply with the terms of the
Seventh Schedule, including failure to satisfy the Financial Covenant Test
then and in any such case it will be lawful for the Landlord at any time
after any such event to re-enter upon the Premises or any part of the
Premises in the name of the whole and thereupon this demise will
absolutely determine but without prejudice to any right of action or
remedy of either party against the other in respect of any breach
non-observance or non-performance of any of the covenants or any
conditions contained in this Lease.
8.2 SERVICE OF NOTICES
8.2.1 Any demand or notice to be served on the Tenant or any Surety under this
Lease will be validly served if sent by first class post addressed to the
Tenant or the Surety respectively (and if there is more than one of them
then any of them) at its registered office or its last known address or at
the Premises.
8.2.2 Any notice to be served on the Landlord will be validly served if sent by
first class post addressed to the Landlord at its registered office or its
last known address.
35
8.2.3 Any demand or notice sent by post will be conclusively treated as having
been served 48 hours after posting.
8.3 ADJOINING LAND
Nothing in this Lease prevents the Landlord and all persons authorised by
it without requiring any consent from or making any compensation to the
Tenant from dealing as it or they may think fit with any land or building
adjacent or near to the Premises or from erecting or suffering to be
erected on any part of such land any buildings or structures whatsoever
and making any alterations or additions and carrying out any demolition or
rebuilding whatsoever which it or they may think fit and (but without
limitation) notwithstanding that such buildings, alterations or additions
shall affect or diminish the light or air which may now or at any time
during the Term be enjoyed by the Premises.
8.4 NO LIABILITY IN DAMAGES
Except where the same is covered by an insurance policy in the name of the
Landlord so far as permitted by law the Landlord will not in any
circumstances incur liability in respect of damage to person or property
or otherwise howsoever by reason of any act, neglect, default or
misfeasance of the landlord its servants, employees, agents or independent
contractors or by reason of any accidental damage which may at any time be
done to the Premises or to any of the goods, persons or property of the
Tenant or any other person provided that this clause shall not apply to
any breach of the Landlord's covenants and obligations in this Lease
relating to insurance.
8.5 FAILURE TO PERFORM OBLIGATIONS
Save in respect of its covenant to insure the Premises the Landlord will
not in any event be liable to the Tenant in respect of any failure of the
landlord to perform any of its obligations to the Tenant under this Lease
whether express or implied unless the Tenant has so notified the Landlord
and the Landlord has failed within a reasonable time to remedy the same
and then in such case the Landlord will be liable to compensate the Tenant
only for loss or damage sustained by the Tenant after such reasonable time
has elapsed.
8.6 STATUTORY COMPENSATION
Except where any statutory provision prohibits the Tenant's right to
compensation being reduced or excluded by agreement the Tenant shall not
be entitled to claim from the Landlord on quitting the Premises or any
part thereof any compensation under the Landlord and ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇.
8.7 RIGHTS EASEMENTS ETC.
The operation of section 62 of the Law of Property Act 1925 is excluded
from this Lease and the only rights granted to the Tenant are those
expressly set out in this Lease and the Tenant will not by virtue of this
Lease during the Term acquire or become entitled (by any means whatever)
to any easement from or over or affecting any other land or premises now
or at any time after the date of this Lease belonging to the Landlord and
not comprised in this Lease.
36
8.8 WAIVER OF RIGHT TO FORFEIT
That no demand for or acceptance or receipt of any part of the Rents shall
operate as a waiver by the Landlord of any right which the Landlord may
have to forfeit this Lease by reason of any breach of covenant by the
Tenant notwithstanding that the Landlord may know or be deemed to know of
such breach at the date of such demand acceptance or receipt.
8.9 NO WARRANTY AS TO PLANNING
No representation or warranty is given or made nor deemed to have been
given or made by the Landlord as to any matter under the Planning Acts.
8.10 TENANT'S GOODS LEFT IN PREMISES
If after the Termination Date any property of the Tenant remains in the
Premises and the Tenant fails at the Termination Date to remove the same
within 28 days after being requested in writing by the Landlord so to do
the Landlord may as the agent of the Tenant (and the Landlord is hereby
appointed by the Tenant to act as such) sell such property and will then
hold the proceeds of sale (after deducting the costs and expenses of
removal storage and sale reasonably and properly incurred by it) to the
order of the Tenant PROVIDED THAT the Tenant will indemnify the Landlord
against any liability incurred by the Landlord to any third party whose
property has been sold by the Landlord in the bona fide mistaken belief
(which will be presumed unless the contrary is proved) that such property
belonged to the Tenant and was liable to be dealt with as such under this
clause 8.10 PROVIDED FURTHER THAT if any equipment (including printing
presses) are in the ownership of or are financed by third parties the
Landlord will act reasonably in entering in to a waiver letter (in a form
reasonably approved by the Landlord) at the cost of the Tenant with any
such third party and any such waiver letter shall provide that the
Landlord shall not be entitled for the period of six months from and
including the Termination Date to exercise its rights under this clause
8.10 in respect of any equipment upon the Premises and the Tenant shall
use best endeavours to procure that such waiver letters are obtained at
the cost of the Tenant in respect of any such equipment currently at the
Premises within three months of the date of this Lease.
8.11 COVENANTS RELATING TO ADJOINING PREMISES
Nothing contained in or implied by this Lease gives the Tenant the benefit
of or the right to enforce or to prevent the release or modification of
any covenant agreement or condition entered into by any tenant of the
Landlord in respect of any property not comprised in this Lease.
8.12 ENTIRE UNDERSTANDING
This Lease embodies the entire understanding of the parties relating to
the Premises and to all the matters dealt with by the provisions of this
Lease.
8.13 LANDLORD AND TENANT (COVENANTS) ▇▇▇ ▇▇▇▇
The Landlord and the Tenant declare that this its a new lease for the
purposes of the Landlord and Tenant (Covenants) ▇▇▇ ▇▇▇▇.
37
8.14 SEVERANCE
Each of the clauses of this Lease is distinct and severable from the
others and if at any time one or more of such provisions is or becomes
illegal invalid or unenforceable the validity legality and enforceability
of the remaining provisions will not in any way be affected or impaired.
8.15 GOVERNING LAW AND JURISDICTION
This Lease shall be governed by and construed in accordance with English
law and the Landlord the Tenant and the Surety (if any) hereby submit to
the exclusive jurisdiction of the courts of England and Wales.
8.16 REQUESTS FOR INFORMATION
8.16.1 At any time upon not less than twenty (20) days' prior written request by
the Landlord to the Tenant the Tenant shall deliver to the Landlord a
statement in writing, executed by an authorised officer of the Tenant,
certifying except as otherwise specified, there are no proceedings
pending or, to the knowledge of the signer, threatened, against the
Tenant before or by any court or administrative agency which if adversely
decided, would materially and adversely affect the financial condition
and operations of the Tenant.
8.16.2 Any such statements by the Tenant may be relied upon by the Landlord,
any person whom the Landlord notifies the Tenant in its request for the
statement is an intended recipient or beneficiary of the statement, any
Mortgagee or its assignees and by any prospective purchaser or
prospective mortgagee of any of the Premises.
8.17 NON-RECOURSE
For so long as the reversion immediately expectant on the determination of
the Term is vested in a member of the WP ▇▇▇▇▇ Group of companies or its
affiliates, anything contained herein to the contrary, notwithstanding any
claim based on or in respect of any liability of the Landlord under this
Lease, shall be enforced only against the Landlord or the Premises and not
against any other assets, properties or funds of:
8.17.1 any director, officer, member, general partner, shareholder, limited
partner, beneficiary, employee or agent of the Landlord or any general
partner of the Landlord or any of its members or general partners (or any
legal representative, heir, estate, successor or assign of any thereof);
8.17.2 any predecessor or successor partnership or corporation (or other entity)
of the Landlord or any of its general partners, shareholders, officers,
directors, members, employees or agents, either directly or through the
Landlord or its general partners, shareholders, officers, directors,
employees or agents or any predecessor or successor partnership or
corporation (or other entity); or
8.17.3 any person affiliated with any of the foregoing, or any director,
officer, employee or agent of any thereof.
38
9. SURETY COVENANTS
The Surety HEREBY COVENANTS with the Landlord in the terms set out in the
Fourth Schedule hereto.
10. CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
No person who is not a party to this Deed (a "THIRD PARTY") has or shall
have any right under the Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇ to
enforce any term of this Deed and no consent of any third party shall be
required under that Act to any cancellation or variation of this Deed.
11. LAND REGISTRATION ▇▇▇ ▇▇▇▇
If the Lease is or should be registered at the Land Registry under the
Land Registration ▇▇▇ ▇▇▇▇, the Tenant will:
11.1 use its best endeavours that the Tenant or any permitted Assignee is
registered at the Land Registry as soon as possible;
11.2 use its best endeavours to procure that all rights granted or reserved by
the Lease or permitted Assignment are properly noted against the affected
titles; and
11.3 deliver to the landlord, within 10 days of registration, official
copies of the registered title evidencing that the Tenant or permitted
Assignee is the registered proprietor of the Lease.
11.4 The Landlord shall not be liable to the Tenant for the Tenant's failure to
register or protect this Lease or any rights granted by it.
12. CERTIFICATE
We certify that there is no agreement for lease to which this Lease gives
effect.
IN WITNESS the parties to this Lease have executed these presents as a Deed
which is intended to be and is delivered on the date specified in paragraph 1 of
the Particulars but not before.
39
FIRST SCHEDULE
Premises
All that land known as land at Whitehall Road and ▇▇▇▇▇▇▇ Street, Leeds as the
same is registered at HM Land Registry under Title Numbers WYK611054, WYK563237,
WYK525150, WYK529431, WYK531325 and WYK236001 and (to the extent that the
Landlord is registered at H.M. Land Registry with title to the same) such
interest as the Landlord may have in ▇▇▇▇▇ Street (such land being shown for
purposes of identification only on the Plan edged red) together with all
alterations and improvements to them INCLUDING (without prejudice to the
generality of the foregoing):
1. all Landlord's Fixtures and Fittings;
2. all Conduits within those Premises;
3. all Plant fittings and furnishings;
BUT EXCLUDING
4. any airspace above the Premises; Provided that with the prior written
consent of the Landlord (such consent not to be unnecessarily withheld)
the Tenant may install plant and associated equipment used for the
purposes of the Tenant's business within such airspace.
5. all tenant's fixtures fittings plant and equipment as listed in Part 2 of
the Sixth Schedule.
40
SECOND SCHEDULE
Rights and Easements excepted
The following rights and easements are excepted and reserved out of the Premises
to the Landlord any superior landlord and their respective tenants and the
occupiers of any adjoining or neighbouring premises and all other persons
authorised by the Landlord or any superior landlord or having the like rights
and easements:
The right at any time on Requisite Notice to enter (or during the Tenant's
absence to break and enter) the Premises in order to:
1.1 exercise the rights of entry contained in this Lease; and/or
1.2 inspect or view the condition of the Premises; and/or
1.3 carry out work upon any adjacent premises; and/or
1.4 carry out any repairs or other work or do anything which the Landlord must
or may carry out or do under the provisions of this Lease.
41
THIRD SCHEDULE
Provisions for rent review
1. In this schedule the following expressions have the following meanings:
1.1 "RENT REVIEW DATES"
means the date or dates specified in paragraph 2 below;
1.2 "RELEVANT RENT REVIEW DATE"
means the Rent Review Date in respect of which the rent is to be
reviewed.
2. At each Relevant Rent Review Date the Rent first reserved shall be
increased by two point five per centum (2.5%) per annum compounded on each
anniversary of the Date of Commencement of Term such that the Rent first
reserved payable from each Relevant Rent Review Date shall be as follows:
25 March 2005 (pound)1,208,983.40
25 March 2006 (pound)1,239,207.99
25 March 2007 (pound)1,270,188.18
25 March 2008 (pound)1,301,942.89
25 March 2009 (pound)1,334,491.46
25 March 2010 (pound)1,367,853.75
25 March 2011 (pound)1,402,050.09
25 March 2012 (pound)1,437,101.34
25 March 2013 (pound)1,473,028.88
25 March 2014 (pound)1,509,854.60
25 March 2015 (pound)1,547,600.96
25 March 2016 (pound)1,586,290.99
25 March 2017 (pound)1,625,948.26
25 March 2018 (pound)1,666,596.97
25 March 2019 (pound)1,708,261.89
25 March 2020 (pound)1,750,968.44
25 March 2021 (pound)1,794,742.65
42
25 March 2022 (pound)1,839,611.22
25 March 2023 (pound)1,885,601.50
25 March 2024 (pound)1,932,741.54
25 March 2025 (pound)1,981,060.08
25 March 2026 (pound)2,030,586.58
25 March 2027 (pound)2,081,351.24
25 March 2028 (pound)2,133,385.02
25 March 2029 (pound)2,186,719.65
3. In respect of all periods of time referred to in this schedule time shall
be deemed not to be of the essence.
4. If on the Relevant Rent Review Date there is in force any Act which
restricts interferes with or affects the Landlord's right to revise the
rent reserved by this Lease in accordance with the terms of this Lease
then the Landlord will be entitled once following each removal or
modification of such Act to serve notice requiring a review of the Rent
(called an "INTERIM NOTICE") upon the Tenant and from and after the date
of service of such Interim Notice the Rent will be increased in accordance
with paragraph 2 and the provisions of this schedule will apply
accordingly with the substitution of the said date of service for the
Relevant Rent Review Date.
43
FOURTH SCHEDULE
Form of Surety covenant
The Surety COVENANTS with the Landlord as a primary obligation and on a full and
unqualified indemnity basis as follows:
1. The Tenant will pay the Rents payable under this Lease on the date on
which Rents become due and payable and will comply with all the
obligations and conditions contained in this Lease relating to any other
matter.
2. In default of compliance with paragraph 1 above the Surety will pay the
Rents or (as appropriate) comply with the obligation or condition in
respect of which the Tenant has defaulted and the Surety will make good to
the Landlord on demand all costs damage expense and liabilities resulting
from any such default.
3. The Tenant will pay the Rents payable pursuant to any authorised guarantee
agreement given by the Tenant pursuant to clause 6.6.5 (a) on the date on
which Rents become due and payable and will comply with all obligations
and conditions contained in any such authorised guarantee agreement
relating to any other matter.
4. In default of compliance with paragraph 3 above the Surety will pay the
Rents (as appropriate) and comply with the obligation or condition in
respect of which the Tenant has defaulted and the Surety will make good to
the Landlord on demand all costs damage expense and liabilities resulting
from any such default.
5. As and when called upon to do so by either the Landlord or the Tenant the
Surety will enter into any Supplemental Document for the purpose of
consenting to the Tenant entering into such Supplemental Document and
confirming that all covenants by the Surety will remain in full force and
effect in respect of the Lease as varied or amended by such Supplemental
Document.
6. The Surety's liability shall remain in full force and effect and shall not
be released notwithstanding any of the following it being acknowledged
that the items in the list below are each separate and independent and not
to be interpreted in the light of any other item:
6.1 any time or indulgence granted by the Landlord to the Tenant or to any
other person liable or by the Landlord dealing with exchanging varying
or failing to perfect or enforce any of its rights and remedies against
the Tenant or any other person liable;
6.2 any variation of or addition to or reduction from the terms of this
Lease or any Supplemental Document to which the Surety is a party;
6.3 any non-acceptance of Rents or any of them in circumstances where the
Landlord has reason to suspect a breach of covenant by the Tenant;
6.4 the occurrence of any of the contingencies specified in clause 8.1 of
this Lease;
6.5 a surrender of part of the Premises except that the Surety will have no
liability in relation to the surrendered part in respect of any period
following the date of surrender;
44
6.6 any document which has the effect of operating as a deemed surrender and
re-grant;
6.7 this Lease being forfeited;
6.8 any incapacity or change in the name style or constitution of the
Tenant;
6.9 any change in the constitution of the Landlord or its absorption in or
amalgamation with or the acquisition of all or part of its undertaking
or assets by any other person or any reconstruction or reorganisation of
any kind; and
6.10 any other act or thing by virtue of which (but for this provision) the
Surety would have been released.
7. This guarantee covenant:
7.1 secures the ultimate balance from time to time owing to the Landlord by
the Tenant and is a continuing security notwithstanding any settlement
of account or other matter;
7.2 is in addition to any present or future indemnity or guarantee or other
document containing some obligation to pay discharge or be responsible
for any indebtedness or liability of the Tenant (a "COLLATERAL
INSTRUMENT") or right or remedy held by or available to the Landlord;
and
7.3 will not be in any way prejudiced or affected by the existence of any
Collateral Instrument rights or remedies or by the Collateral Instrument
becoming wholly or in part void voidable or unenforceable on any ground
or by the Landlord compounding with any other person liable.
8. The Landlord will not be obliged to make any claim or demand on the Tenant
or to resort to any Collateral Instrument or other means of payment held
by or available to the Landlord before enforcing the Surety's covenants
and no action taken or omitted by the Landlord in connection with any
Collateral Instrument or other means of payment will discharge reduce
prejudice or affect the liability of the Surety nor will the Landlord be
obliged to apply any money or other property received or recovered in
consequence of any enforcement or realisation of any Collateral Instrument
or other means of payment in reduction of the liabilities which are
guaranteed by the Surety.
9. The Surety warrants that it has not taken or received and undertakes that
until all the liabilities which are guaranteed by the Surety have been
paid or discharged in full it will not take or receive the benefit of any
security from the Tenant or any other person in respect of its obligations
under this guarantee.
10. Until all the liabilities guaranteed by the Surety have been paid
discharged or satisfied in full (and notwithstanding payment of a dividend
in any liquidation or bankruptcy or under any compromise or arrangement)
the Surety agrees that without the prior written consent of the Landlord
it will not:
10.1 exercise its rights of subrogation reimbursement and indemnity against
the Tenant;
45
10.2 demand or accept repayment in whole or in part of any indebtedness due
to the Surety from the Tenant or from any other person liable, or demand
or accept any Collateral Instrument in respect of the same or dispose of
the same;
10.3 take any step to enforce any right against the Tenant or any other
person liable in respect of any liabilities guaranteed by the Surety; or
10.4 claim any set-off or counterclaim against the Tenant or any other person
liable or claim or prove in competition with the Landlord in the
bankruptcy or liquidation of the Tenant or any other person liable or
have the benefit of or share in any payment from or composition with the
Tenant or any other person liable or any other Collateral Instrument
held by the Landlord for any liabilities guaranteed by the Surety or for
the obligations or liabilities of any other person liable but so that if
so directed by the Landlord, it will prove for the whole or any part of
its claim in the liquidation or bankruptcy of the Tenant on terms that
the benefit of such proof and of all money received by it in respect of
such proof shall be held on trust for the Landlord and applied in or
towards discharge of the liabilities guaranteed by the Surety in such
manner as the Landlord shall deem appropriate
Provided Always that the provisions of paragraphs 6 or 7 shall not apply
where the Surety is a bank or other financial institution.
11. If contrary to paragraphs 6 or 7.2 the Surety takes or receives the
benefit of any security or receives or recovers any money or other
property such security money or other property will be held on trust for
the Landlord and will be delivered to the Landlord on demand.
12. The Surety agrees to reimburse the Landlord on demand for all reasonable
legal and other costs charges and expenses on a full and unqualified
indemnity basis which may be properly incurred by the Landlord in relation
to the enforcement of the Surety's covenants.
13. All payments to be made by the Surety will be made in full without any
set-off (legal or equitable) condition or counterclaim and subject as
provided below free and clear of any deductions or withholdings. If at any
time any applicable law regulation or regulatory requirement or any
governmental authority monetary agency or central bank requires the Surety
to make any deduction or withholding in respect of taxes levies duties
imposts or any charges from any payment due from the Surety the sum due
from the Surety in respect of such payment shall be increased to the
extent necessary to ensure that after making such deduction or withholding
the Landlord receives on the due date for such payment and retains (free
from any liability in respect of such deduction or withholding) a net sum
equal to the sum which it would have received had no such deduction or
withholding been required to be made. The Surety shall indemnify the
Landlord against any losses or costs incurred by reason of any failure of
the Surety to make any such deduction or withholding or by reason of any
increased payment not being made on the due date for such payment. The
Surety shall promptly deliver to the Landlord any receipts certificates or
other proof evidencing the amount (if any) paid or payable in respect of
any deduction or withholding as aforesaid.
14. Each of the provisions of this guarantee covenant is distinct and
severable from the others and if at any time one or more of such
provisions is or becomes illegal invalid or unenforceable the validity
legality and enforceability of the remaining provisions will not in any
way be affected or impaired.
46
15. The Surety agrees to pay Interest on each amount demanded of it under this
schedule from 14 days after the date of demand until repayment (as well
after as before judgment).
16. If a liquidator or trustee in bankruptcy surrenders or disclaims this
Lease or if this Lease becomes forfeited the Surety will at the request of
the Landlord made within the twelve months following that surrender or
disclaimer or forfeiture (as the case may be) take from the Landlord a
lease of the Premises for a term equal to the residue of the Term which
would have remained had there been no surrender or disclaimer or
forfeiture at the same rents and subject to the same obligations and
conditions as are contained in this Lease. That lease is to take effect
from the date of such surrender or disclaimer or forfeiture (as the case
may be) and in such case the Surety will pay the reasonable costs of that
new lease and execute and deliver a counterpart of it to the Landlord.
17. If the Landlord does not require the Surety to take a new lease of the
Premises under the preceding paragraph 16 the Surety will nevertheless on
demand pay to the Landlord a sum equal to the Rents which would have been
payable under this Lease but for the surrender or disclaimer or forfeiture
(as the case may be) in respect of the period from the date of that
surrender or disclaimer or forfeiture (as the case may be) until the
Premises become re-let by the Landlord or until the expiry of the Term
(whichever occurs first) together with all arrears of Rents outstanding
under this Lease.
47
FIFTH SCHEDULE
Matters to which the demise is subject
All those matters contained or referred to in the titles registered at HM Land
Registry referred to in the First Schedule.
48
SIXTH SCHEDULE
PART 1
Landlord's Fixtures and Fittings, Plant and Machinery
REEL STORE
Fire hoses
Fire alarm system
Emergency lighting
Roller shutter doors
Toilets and sanitaryware
Roller shutter doors
Roof sprinkler system
▇▇▇▇▇ HOUSE
Fire hoses
Fire alarm system
Emergency lighting
Gas fired boilers, heating system and control equipment
Goods lift
Toilets and sanitaryware
Lighting
Suspended ceilings
Roller shutter doors
BINDERY
Fire hoses
Fire alarm system
Emergency lighting
Toilets and sanitaryware
Roller shutter doors
Roof sprinkler system
PRESS HALL 1
Fire hoses
Fire alarm system
Emergency lighting
Toilets and sanitaryware
Roller shutter doors
Roof sprinkler system
PRESS HALL 2
Fire hoses
Fire alarm system
Emergency lighting
Toilets and sanitaryware
49
Roller shutter doors
Roof sprinkler system
50
SIXTH SCHEDULE
PART 2
Tenant's Fixtures and Fittings, Plant and Machinery
REEL STORE
Lighting
(No heating system)
Fire extinguishers
Wall protection barriers
Telephone / IT network
Floor coverings
Partitioning
Spotlights
Hand towel dispensers and electric hand dryers
Signs (internal and external)
▇▇▇▇▇ HOUSE
Partitioning
Racking
Fire extinguishers
Wall protection barriers
Reception desk
Ground floor computer suite
Partial air conditioning in ground and second floors
Telephone / IT network
Kitchen sinks / units
Hand towel dispensers and electric hand dryers
Window blinds
Fork truck battery charging equipment
Video survellence equipment
Spotlights
Intruder alarm
Floor coverings
Signs (internal and external)
External flagpoles
BINDERY
Lighting
Heating system
Fire extinguishers
Wall protection barriers
Compressed air distribution system
Electrical power distribution panels and transformer
Partitioning
Gantry and crane systems
Telephone / IT network
2 x rapid action doors
Floor coverings
51
Partial air conditioning
Spotlights
Hand towel dispensers and electric hand dryers
Generator and oil storage tanks
Signs (internal and external)
PRESS HALL 1
Lighting
Heating system
Fire extinguishers
Wall protection barriers
Compressed air distribution system
Electrical power distribution panels and transformer
Partitioning
Battery charging equipment
Telephone / IT network
2 x rapid action doors
3 x chiller units
Platform for afterburner
Mezzanine floor offices
Gas distribution system
Chilled water distribution and equipment
Floor coverings
Spotlights
Hand towel dispensers and electric hand dryers
Hoist, crane and gantry system
Signs (internal and external)
PRESS HALL 2
Lighting
Heating system
Partial air conditioning
Fire extinguishers
Wall protection barriers
Compressed air distribution system and equipment
Electrical power distribution and transformers
Partitioning
Telephone / IT Network
1 x rapid action door
Chilled water distribution and equipment
Floor coverings
Spotlights
Hand towel dispensers and electric hand dryers
Signs (internal and external)
52
SEVENTH SCHEDULE
Corporate and Financial Covenants
1. CORPORATE EXISTENCE
1.1 Polestar ▇▇▇▇▇ Limited (company number 2317911) and the Surety shall
maintain their corporate existence, continue to have the power and
authority to own their respective Assets and to conduct the business
which they conduct and/or propose to conduct (save for the purpose
(demonstrated to the Landlord's reasonable satisfaction) of
reconstruction or amalgamation whilst solvent).
1.2 Polestar ▇▇▇▇▇ Limited (company number 2317911) and the Surety shall
maintain a place of business within the United Kingdom.
1.3 Whilst this Lease is vested in Polestar ▇▇▇▇▇ Limited (company number
2317911) it shall at all times remain a wholly owned subsidiary of
Polestar Group Limited PROVIDED THAT a change of control of Polestar
▇▇▇▇▇ Limited (company number 2317911) shall only take place in the
following circumstances:-
(a) Where the New Controller is of Investment Grade; or
(b) where the prior written approval of the Landlord is obtained to
the New Controller (such approval not to be unreasonably withheld
or delayed); or
(c) where a Rent Deposit in the sum equivalent to 12 months Rents
which will be due and payable to the Landlord during the period
commencing from the date of intended change of control is paid to
the Landlord and a Rent Deposit Deed is entered into providing for
such rent deposit to be held for the residue of the unexpired term
of this Lease (subject to the following paragraph)
1.4
(a) If the Tenant wishes to request the release of any Rent Deposit
held under the terms of the paragraph 1.3(c) it shall not less
than sixty days prior to the date on which it desires the Rent
Deposit to be released submit to the Landlord and its Mortgagee
information regarding the following with respect to the New
Controller (collectively the "Review Criteria");
(i) credit
(ii) capital structure
(iii) management
(iv) operating history
(v) proposed use of the Premises
(vi) risk factors associated with the proposed use of the
Premises
53
(vii) any other information the Landlord and its Mortgagee may
reasonably require in order to permit the Landlord and its
Mortgagee to make a prudent business decision.
(b) The Landlord shall review the information referred to in the
preceding sub-paragraph and shall approve or disapprove of the
release of the Rent Deposit no later than thirty days after
receipt of all such information.
(c) The Landlord shall be deemed to have acted reasonably in
granting or withholding consent if such grant or withholding is
based on its review of the Review Criteria applying prudent
business judgement and the Landlord (applying such judgement to
the Review Criteria) reasonably believes the New Controller to
have (in the case of granting its consent) an equivalent or
superior financial credit-worthiness or (in the case of it
withholding its consent) an inferior financial credit-worthiness
to the Party previously exercising Control over Polestar ▇▇▇▇▇
Limited.
(d) In assessing the strength of the relevant financial
credit-worthiness the Landlord shall be entitled to have regard
to the likely future conduct of the New Controller and its
effect on the strength of the financial credit-worthiness going
forward including with reference to the proposed use of the
Premises and the associated risk factors forming part of the
Review Criteria.
1.5 Polestar ▇▇▇▇▇ Limited (company number 2317911) may substitute for any
of the Original Surety Companies or any subsequent company substituted
as a Surety pursuant to this paragraph 1.4 and the Tenth Schedule any
other company within the Polestar Group (in this paragraph 1.4 referred
to as the "NEW SURETY") with the prior written consent of the Landlord
which shall not be unreasonably withheld or delayed where the Assets of
the company that is to be replaced as a Surety have been transferred to
the New Surety (demonstrated to the Landlord's reasonable satisfaction)
FURTHER PROVIDED THAT the company that has been replaced as Surety to
this Lease by a New Surety shall:
1.5.1 cease to have any liability as Surety for the purposes of this
Lease or any supplemental document upon the New Surety entering into the
Deed of Substitution referred to in paragraph 1.5.3; and
1.5.2 shall enter into the Deed of Substitution of Surety in the form
annexed in the Tenth Schedule; and
1.5.3 procure that the New Surety shall enter into a Deed of
Substitution of Surety in the form annexed in the Tenth Schedule.
Provided that in no circumstances shall this clause permit the removal
of Polestar Group Limited as an Original Surety Company.
2. BOOKS AND RECORDS
2.1 To keep adequate records and books of account with respect to the
finances and business of the Tenant's Group generally and with respect
to the Premises in accordance with accounting standards, principles and
practices generally accepted in England consistently applied and to
54
discuss the finances and business of the Tenant's Group with the
officers of the Landlord at such reasonable times as may be requested by
the Landlord.
2.2 To deliver to the Landlord within 30 days of the close of the Tenant's
financial year draft financial statements of the Tenant.
2.3 To deliver to the Landlord within 120 days of the close of each of the
Tenant's Group's financial years (or such earlier period as the auditor
signs off annual audited financial statements) annual audited financial
statements of the Tenant's Group prepared by a nationally recognised
firm of independent, suitable, professionally qualified accountants.
2.4 To ensure that all annual financial statements shall be accompanied by
an opinion of the said accountants stating that (a) there are no
qualifications as to the scope of the audit and (b) the audit was
performed in accordance with accounting standards, principles and
practices generally accepted in England and (c) such statements give a
true and fair view of the Tenant's Group's financial condition and
operations at the date and for the year then ended and (d) that the
Financial Covenant Tests have been satisfied as at the Test Date and (e)
that the Minimum Tangible Worth Test has been satisfied at all times
during the 12 month period expiring on the Test Date.
2.5 To furnish the Landlord with a copy of any compliance certificates or
other information relating to the financial status of Polestar ▇▇▇▇▇
Limited (company number 2317911) or the Surety supplied by Polestar
▇▇▇▇▇ Limited (company number 2317911) or the Surety to their respective
banks, lenders, funders or chargees (the "BANK") as soon as reasonably
practicable following submission of the same to the Bank on the same
dates that such information is supplied to the Bank and in the case of
the Surety such information may be summarised in a form approved by the
Landlord (such approval not to be unreasonably withheld).
2.6 To furnish the Landlord with any other financial information as the
Landlord shall reasonably require.
2.7 Polestar ▇▇▇▇▇ Limited (company number 2317911) confirms that the
Landlord shall be permitted to pass any information provided to it under
the terms of this paragraph 2.7 to any Mortgagee.
3. TENANT/GUARANTOR FINANCIAL COVENANTS
3.1 Polestar ▇▇▇▇▇ Limited (Company number 2317911) shall within 30 days of
each Test Date produce evidence satisfactory to the Landlord that the
Financial Covenant Tests have been satisfied by reference to the draft
financial statements of the Tenant as at the Test Date which shall be
subject to final adjustment and confirmation in the annual audited
financial statements.
3.2 If Polestar ▇▇▇▇▇ Limited (Company number 2317911) has not satisfied all
of the Financial Covenant Tests on any Test Date:-
3.2.1 the Landlord may require Polestar ▇▇▇▇▇ Limited (Company number
2317911) to forthwith pay the relevant Rent Deposit (referred to in
the definition of "Rent Deposit"
55
relating to the relevant Financial Covenant Test that has not been
satisfied) to the Landlord and enter into the Rent Deposit Deed; and
3.2.2 the Landlord shall be entitled to hold the Rent Deposit for a period
up to and including the next relevant Test Date;
3.2.3 in the event that Polestar ▇▇▇▇▇ Limited (Company number 2317911)
fails that part of the Financial Covenant Test referred to at
paragraph 3.2 above on consecutive Test Dates, the Landlord shall be
entitled to (a) retain the Rent Deposit until such time as Polestar
▇▇▇▇▇ Limited (Company number 2317911) satisfies that part of the
Financial Covenant Test and (b) exercise its rights of re-entry in
accordance with clause 8.1 of this Lease save that the Landlord shall
not be entitled to exercise its rights of re-entry in clause 8.1
solely in relation to failure to satisfy the relevant Financial
Covenant Test in circumstances where Polestar ▇▇▇▇▇ Limited provides
a rent deposit in accordance with this paragraph 3 related to such
relevant Financial Covenant Test; and
3.2.4 in the event that the Landlord holds the Rent Deposit and Polestar
▇▇▇▇▇ Limited (Company number 2317911) satisfies that part of the
Financial Covenant Tests to which the Rent Deposit relates on the
next relevant Test Date, the Landlord shall repay the Rent Deposit
(less any sums withdrawn by the Landlord in accordance with the terms
of the Rent Deposit Deed) to Polestar ▇▇▇▇▇ Limited (Company number
2317911) in accordance with the terms of the Rent Deposit Deed but
the provisions of paragraph 3.1 of this Seventh Schedule shall
continue to apply.
3.3 In the event Polestar ▇▇▇▇▇ Limited (Company number 2317911) fails to
satisfy the Financial Covenant Tests and does not pay the relevant Rent
Deposit to the Landlord's satisfaction then the provisions of clause 8.1
of this Lease shall apply.
4. POLESTAR GROUP FINANCIAL COVENANTS
4.1 The Surety confirms that all the covenants with the Bank have been
complied with to date and shall continue to be complied with and as at
the date hereof the covenants which Polestar Group has with the Bank
contain the following interest cover ratio covenants and Senior Debt to
Ebitda covenants applying during the periods outlined:-
EBITDA/ Senior Debt
Interest to EBITDA
31 Mar 2004 2.25:1 5.125:1
30 Jun 2004 2.375:1 5.00:1
30 Sep 2004 2.50:1 4.75:1
31 Dec 2004 2.50:1 4.50:1
31 Mar 2005 2.625:1 4.375:1
30 Jun 2005 2.75:1 4.25:1
30 Sep 2004 2.75:1 4.125:1
31 Dec 2005 2.875:1 4.125:1
31 Mar 2006 2.875:1 4.00:1
30 Jun 2006 3.0:1 3.625:1
thereafter on a
rolling 12 month basis 3.125:1 3.625:1
56
4.2 In the event the covenant tests referred to at paragraph 4.1 above are
adjusted or changed by the Bank from time to time the Surety shall
comply with such adjusted or revised covenant tests and the Surety shall
immediately notify the Landlord as soon as it or any member of the
Polestar Group is informed of such change to the covenant tests.
5. FORFEITURE
Subject to the proviso to paragraph 3.2.3, in the event that Polestar
▇▇▇▇▇ Limited (Company number 2317911) and the Surety fail to comply
with the provisions of this Seventh schedule, then clause 8.1.5 of this
Lease shall apply.
6. ASSIGNMENT
For the avoidance of doubt, the provisions of this Seventh schedule shall not
bind any assignee of this Lease who has been approved by the Landlord under the
terms of clause 6.6.
57
EIGHTH SCHEDULE
Authorised Guarantee Agreement
DATE
PARTIES
(1) [ ] (Company registration No. ) the
registered office of which is at (the
"TENANT").
(2) [ ] (incorporated and registered in England and Wales under
company number [ ]), the registered office of which is at
[ ](the "LANDLORD").
RECITALS
(A) By the Lease the Premises were let to the Tenant for a term from and
including [ ] , up to and including [ ]
(B) The reversion immediately expectant on the term created by the Lease
[remains/is now] vested in the Landlord and the residue of that term
remains vested in the Tenant.
(C) The Lease contains a covenant against assignment without the consent of
the Landlord.
(D) The Landlord has given its consent to an assignment to the Assignee,
subject to a condition that the Tenant enters into an agreement
guaranteeing the performance of the tenant covenants by the Assignee in
the form of this deed.
IT IS AGREED AS FOLLOWS:
1. DEFINITIONS
In this deed the following definitions apply:
"1995 ACT"
means the Landlord and Tenant (Covenants) ▇▇▇ ▇▇▇▇;
"ASSIGNEE"
means [ ] (company registration
number[ ]), the registered office of which is at
[ ];
58
"LANDLORD"
means the second party to this deed and its successors in title;
"LEASE"
means a lease made between PRINTS (UK) QRS 16-1 INC (1), POLESTAR
▇▇▇▇▇ LIMITED (2) and POLESTAR ▇▇▇▇▇ BINDERY LIMITED POLESTAR
MAGAZINES & CATALOGUES LIMITED WATMOUGHS (HOLDINGS) LIMITED
POLESTAR GROUP LIMITED (3) dated 5 May 2004 and any document
varying or supplemental to such lease whether entered into on or
before the date of this deed;
"PRACTITIONER"
means a liquidator, trustee in bankruptcy, administrator, receiver
or receiver and manager or any similar officer;
"PREMISES"
means land at Whitehall Road and ▇▇▇▇▇▇▇ Street, Leeds as more
particularly described in the Lease;
"TENANT"
means the first party to this deed.
7. INTERPRETATION
7.1 The table of contents and clause headings are for reference only and do
not affect the construction of this deed.
7.2 General words introduced by the word "other" do not have a restrictive
meaning by reason of being preceded by words indicating a particular
class of acts, things or matters.
7.3 Obligations owed by or to more than one person are owed by or to them
jointly and severally.
7.4 Words importing one gender include all other genders and words importing
the singular include the plural and vice versa.
7.5 References to a person include an individual, a corporation, company,
firm or partnership or government body or agency, whether or not legally
capable of holding land.
7.6 Unless otherwise specified, a reference to particular legislation is a
reference to that legislation as amended, consolidated or re-enacted
from time to time and all subordinate legislation made thereunder from
time to time including, without limitation, all orders, regulations,
consents, licences, notices and bye-laws.
7.7 Unless otherwise specified, a reference to a clause is a reference to a
clause or sub-clause of this deed.
59
7.8 The word "SECURITY" includes, without limitation, a guarantee or rent
deposit.
7.9 Where a sum becomes payable it shall be paid within three working days
unless otherwise specified by the Landlord in writing.
7.10 The expressions "INTEREST RATE" and "RENT" shall have the meanings given
to them in the Lease.
7.11 The expression "TENANT COVENANTS" is to be construed consistently with
the 1995 Act but shall not include any tenant covenant expressed to be
personal to the Tenant or its predecessors in title.
8. GUARANTEE
8.1 The Tenant irrevocably and unconditionally guarantees to the Landlord
that the Assignee will duly and punctually comply with all the tenant
covenants of the Lease until the Assignee is released therefrom by
virtue of the ▇▇▇▇ ▇▇▇.
8.2 The Tenant agrees that if the Assignee, in respect of any time before it
is released by virtue of the 1995 Act, fails duly and punctually to
comply with any of the tenant covenants in the Lease, it shall comply
with such covenant.
9. PRINCIPAL DEBTOR
As a separate and independent obligation under this deed the Tenant shall
be liable to the Landlord as principal debtor in respect of any obligation
owed by the Assignee pursuant to the tenant covenants of the Lease until
the Assignee is released by virtue of the 1995 Act.
10. TENANT AND GUARANTOR TO TAKE A NEW LEASE
10.1 The Tenant agrees that if the Lease, or the obligations of the Assignee
under it, shall be disclaimed, the Tenant will, if required by the
Landlord within six months of the Landlord having received notice of the
disclaimer, take a new lease of the Premises from the Landlord.
10.2 The new lease shall:
10.2.1 be for a term commencing on the date of the disclaimer and be equal
to the unexpired residue of the term of years granted by the Lease
(or the residue which would be unexpired but for the disclaimer) as
at the date of the disclaimer;
10.2.2 reserve a rent equal to the Rent reserved under the Lease
immediately before the disclaimer, and otherwise be on the same
terms as the Lease but with no provision for a rent free period, and
10.2.3 take effect from the date of the disclaimer.
10.3 The new lease will take effect subject to the Lease, if and to the
extent that it is still subsisting, and subject to any underlease or
other interest created or permitted by the Assignee or its predecessors
in title.
60
10.4 The Tenant shall pay the Landlord's reasonable and proper costs (on an
indemnity basis) in connection with the grant of the new lease and shall
execute, deliver and pay the stamp duty on a counterpart of it to the
Landlord.
11. SUPPLEMENTARY PROVISIONS
11.1 NO DISCHARGE OF THE TENANT OR GUARANTOR
Without prejudice to sub-section 18(3) of the 1995 Act, the Tenant's
liabilities under this deed shall be and remain in full force and effect
and will not be avoided, released, discharged or reduced nor will the
rights or remedies of the Landlord be prejudiced or affected by any of
the following:
11.1.1 any time, indulgence or concession granted by the Landlord to the
Assignee or to any other person who is liable;
11.1.2 the Landlord dealing with, varying or failing to perfect or enforce
any of its rights or remedies against the Assignee or any other
person who is liable;
11.1.3 the existence of or dealing with, varying or failing to perfect or
enforce any security which may be or become available to the
Landlord;
11.1.4 any act or neglect of the Landlord whereby the benefit of any
security or any right or remedy against any person who is liable is
released, lost or diminished;
11.1.5 any variation of, addition to or reduction from the terms of the
Lease whether or not the same confers or imposes only a personal
right or obligation;
11.1.6 any invalid or ineffective payment by the Assignee or any other
person who is liable;
11.1.7 any right to set-off (whether legal or equitable), counterclaim or
deduction which may have accrued to the Assignee, or Tenant;
11.1.8 any non-acceptance of the Rent or other sums due under the Lease, in
circumstances in which the Landlord has reason to suspect a breach of
the tenant's obligations under the Lease;
11.1.9 any waiver by the Landlord of any right to forfeit the Lease;
11.1.10 a surrender of part of the Premises, except that the Tenant will have
no liability in relation to the surrendered part in respect of any
period after the date of the surrender;
11.1.11 any death, incapacity, disability or change in the constitution,
status, or name of the Assignee, or the Tenant, or of any other
person who is liable or of the Landlord;
11.1.12 any amalgamation or merger by the Landlord or the Assignee with any
other person, any restructuring or the acquisition of the whole or
any part of the assets or undertaking of the Landlord or the Assignee
by any other person;
11.1.13 the Assignee or any other person who is liable entering into any
arrangement or composition with any of its creditors (whether or not
such arrangement or composition binds or is expressed to bind the
Landlord);
61
11.1.14 the appointment of any Practitioner to, over or in relation to any of
the assets or undertaking of the Assignee;
11.1.15 any provisions of the Lease being or becoming wholly or in part void,
voidable or unenforceable by the Landlord against the Assignee or any
other person;
11.1.16 any other act, omission or thing by virtue of which, but for this
provision, the Tenant would have been released or discharged from its
obligations under this deed in whole or in part, or the rights or
remedies of the Landlord would have been prejudiced or affected,
other than a release by deed, entered into by the Landlord, in
accordance with the terms of such deed,
and the parties acknowledge that each of the matters listed above is
separate and independent and is not to be interpreted in the light of
any other.
11.2 WAIVER OF RIGHTS BY THE TENANT
11.2.1 Until all the obligations of the Tenant under this deed have been
paid, discharged or satisfied irrevocably and in full (and
notwithstanding payment of a dividend in any liquidation or
bankruptcy or under any compromise or arrangement), the Tenant agrees
not, without the consent of the Landlord, to:
(a) exercise any rights of reimbursement, indemnity or contribution
against the Assignee or any other person who is liable;
(b) accept repayment in whole or in part of any indebtedness now or
hereafter due to the Tenant from the Assignee or from any other
person who is liable;
(c) demand or accept any security from the Assignee or any other
person who is liable in respect of the obligations of the Tenant
under this deed or in respect of any indebtedness due to the
Tenant from the Assignee or any other person who is liable, and
any security received by the Tenant in breach of the above or
any such security held by the Tenant at the date of the
instrument of the assignment of the Lease shall be held by the
Tenant on trust for the Landlord and delivered to the Landlord
on demand;
(d) claim any set-off (whether legal or equitable), counterclaim or
deduction against the Assignee or any other person who is
liable;
(e) benefit from or seek to benefit from any security or other right
or remedy now or hereafter held by or accruing to the Landlord
in respect of the liabilities guaranteed under this deed or to
exercise any right of subrogation; or
(f) claim or prove in competition with the Landlord in the
liquidation, bankruptcy or arrangement of the Assignee or any
other person who is liable, or have the benefit of or share in
any payment or distribution from the same and any money or other
property received by the Tenant in breach of this shall be held
by the Tenant on trust for the Landlord and delivered to the
Landlord on demand.
11.2.2 The obligations of the Tenant under this deed may be enforced by the
Landlord against the Tenant at its discretion and without enforcing
or seeking to enforce its rights or remedies against the Assignee or
any other person who is liable or pursuing any other right or remedy
or having recourse to any security available to it.
62
11.3 ULTIMATE BALANCE AND SUSPENSE ACCOUNT
11.3.1 All dividends and moneys received by the Landlord from the Assignee
or any other person which are not paid into a suspense account and
which are capable of being applied by the Landlord in satisfaction of
the liabilities guaranteed under this deed will not prejudice the
right of the Landlord to recover from the Tenant the ultimate balance
which, after receipt of such dividends and moneys, may remain owing
or expressed to be owing to the Landlord.
11.3.2 Any money received in respect of the liabilities guaranteed under
this deed may be placed to the credit of a suspense account (with a
view to preserving the rights of the Landlord to prove for the whole
of its claims against the Assignee or any other person who is liable)
and/or may be applied in or towards satisfaction of such of the
liabilities guaranteed under this deed as the Landlord may from time
to time conclusively determine in its absolute discretion.
11.4 OTHER SECURITY
11.4.1 This deed is in addition to any other security or any other right or
remedy held by or available to the Landlord from time to time.
11.4.2 The Landlord is under no obligation to take up or to maintain any
other security in respect of the liabilities guaranteed by this deed.
11.5 SUPPLEMENTAL DOCUMENTS
As and when called upon to do so by either the Landlord or the Assignee,
the Tenant shall enter into any document supplemental to the Lease (by
deed if required) for the purpose of consenting to the Assignee entering
into such supplemental document.
11.6 COSTS OF ENFORCEMENT
The Tenant agrees to pay to the Landlord on demand, and on an indemnity
basis, all proper legal and other costs and expenses and a sum equal to
all value added tax thereon which may be properly payable by the
Landlord in relation to the enforcement of the Tenant's obligations in
this deed.
11.7 INTEREST
The Tenant agrees to pay interest on each amount due from it under this
deed, at the Interest Rate for the period starting with the date that
such amount became due from the Assignee and/or the Tenant (as the case
may be) until payment (both before and after judgment) but provided that
the Tenant shall not be liable to pay interest upon interest due from
the Assignee and paid by the Tenant.
11.8 NO SET-OFF
All payments to be made under this deed shall be made in full and the
Tenant shall not claim any allowance in respect of any set-off (whether
legal or equitable), counterclaim or deduction whatsoever whether
accruing to the Tenant or to any other person.
63
11.9 NOTICES
11.9.1 Any notices given in connection with this deed must be in writing and
will only be validly served if sent by first class post, or
registered post or by recorded delivery and addressed to the Landlord
or the Tenant at their address given in this deed or, in the case of
the Landlord, at such other address as the Landlord has notified to
the Tenant in writing. A notice sent by post from within the United
Kingdom and correctly addressed and properly stamped will be
conclusively treated as having been delivered two working days after
posting.
11.9.2 The Landlord covenants with the Tenant that it will notify the Tenant
in writing within 28 days of being informed of the facts bringing the
Tenant's liability under this Deed to an end.
12. SCOPE OF THIS DEED
12.1 The provisions of this deed will have effect from the date of the
instrument of the assignment of the Lease to the Assignee.
12.2 The intention of the parties to this deed is that it should be an
authorised guarantee agreement within the meaning of the 1995 Act.
12.3 If any provision, or any part of a provision, of this deed has the
effect of causing this deed not to be an authorised guarantee
agreement within the meaning of the 1995 Act to any extent, that
provision or part is to be treated as having been modified (or if
necessary omitted from this deed) to the extent needed to avoid that
effect.
12.4 Each of the provisions of this deed is separate and severable from
the others, and if at any time one or more of the provisions is or
becomes illegal, invalid or unenforceable (whether wholly or to any
extent), the legality, validity or enforceability of the remaining
provisions (or the same provision to any other extent) will not be
affected or impaired.
12.5 The rights of the Landlord under any clause are without prejudice to
the rights of the Landlord under any other clause or under the Lease
or any other security.
12.6 The obligations of or agreements on the part of the Tenant under any
clause are without prejudice to their obligations or agreements under
any other clause.
12.7 This deed will enure for the benefit of the Landlord and its
successors in title without any need for express assignment.
12.8 Unless expressly stated nothing in this deed will create any rights
in favour of any person pursuant to the Contracts (Rights of Third
Parties) ▇▇▇ ▇▇▇▇.
64
NINTH SCHEDULE
Form of Rent Deposit Deed
Registered on
under section 395, Companies ▇▇▇ ▇▇▇▇
DATED
PRINTS (UK) QRS 16-1 INC
to
POLESTAR ▇▇▇▇▇ LIMITED
and
POLESTAR ▇▇▇▇▇ BINDERY LIMITED
POLESTAR MAGAZINES & CATALOGUES LIMITED
WATMOUGHS (HOLDINGS) LIMITED
POLESTAR GROUP LIMITED
RENT DEPOSIT DEED
supplemental to
a lease dated [ ] and made between
(1) Prints (UK) QRS 16-1 INC (2) Polestar ▇▇▇▇▇ Limited and
(3)Polestar ▇▇▇▇▇ Bindery Limited, Polestar Magazines &
Catalogues Limited, Watmoughs (Holdings) Limited, Polestar
Group Limited
relating to
Premises at Whitehall Road and ▇▇▇▇▇▇▇ Street, Leeds
Nabarro ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇'▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Tel: ▇▇▇ ▇▇▇▇ ▇▇▇▇
65
RENT DEPOSIT DEED
DATE
PARTIES
(1) PRINTS (UK) QRS 16-1 INC c/o Colliers CRE Aquis House, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇ ▇▇▇ (the "LANDLORD");
(2) POLESTAR ▇▇▇▇▇ LIMITED (a company incorporated and registered in England
and Wales with company registration number 2317911) whose registered
office is at Marlborough Court, Sunrise Parkway, Linford ▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (the "TENANT"); and
(3) POLESTAR ▇▇▇▇▇ BINDERY LIMITED, POLESTAR MAGAZINES & CATALOGUES LIMITED,
WATMOUGHS (HOLDINGS) LIMITED and POLESTAR GROUP LIMITED (company
registration numbers 2647729, 2349434, 49840 and 3489002 respectively)
whose registered office is at whose registered office is at Marlborough
Court, Sunrise Parkway, Linford ▇▇▇▇, ▇▇▇▇▇▇ Keynes Buckinghamshire MK14
6DY (the "GUARANTOR").
IT IS AGREED AS FOLLOWS:
2. DEFINITIONS AND INTERPRETATION
2.1 In this deed, unless the context otherwise requires, the following words
and phrases have the following meanings:
"ACCOUNT"
means an interest bearing deposit account with the Bank in the name
of the Landlord;
"BANK"
means a specified bank or institution of the Landlord's choosing;
"DEFAULT"
means any failure by the Tenant to pay (whether or not formal demand
has been made) the whole or any part of the Liabilities;
"DEPOSIT BALANCE"
means the sum from time to time standing to the credit of the
Account including any Interest which has not been paid to the
Tenant;
66
"ENCUMBRANCE"
means any charge, security, interest or right, whether fixed or
floating, conferring a priority of payment;
"INITIAL DEPOSIT"
means the sum of [ PLEASE REFER TO THE TERMS OF THE
LEASE ] pounds ((pound)[ ]) plus
17.5 per cent;
"INTEREST"
means any interest accruing to the Account;
"LEASE"
means the lease of the Premises dated [ ] and made
between (1) the Landlord (2) the Tenant and (3) the Guarantor and
includes any document supplemental to the Lease whether or not
expressed to be so;
"LIABILITIES"
means the rents or other money including interest payable under the
Lease or any costs, damages and expenses incurred by or payable to
the Landlord in consequence of any failure by the Tenant to observe
and perform any of the tenant's covenants or obligations and the
conditions contained in the Lease or this deed or in consequence of
the determination of the Lease before the end of the Term otherwise
than by agreement;
"PERMITTED ASSIGNMENT"
means an assignment of the Lease which is permitted under the terms
of the Lease or by the Landlord giving consent and which is not an
excluded assignment as defined in section 11 of the Landlord and
Tenant (Covenants)Act 1995;
"PREMISES"
means the premises known as Whitehall Road, Leeds and more
particularly described in the Lease;
"RENT DEPOSIT"
means an amount equal to [PLEASE REFER TO THE TERMS OF THE LEASE ];
"TERM"
means the term granted by the Lease and includes any period of
continuation or holding over.
2.2 The clause headings in this deed (except the definitions) are for ease
of reference and are not to be used for the purposes of construing this
deed.
2.3 References in this deed to clauses or schedules will mean the clauses of
or the schedules attached to this deed.
2.4 References to the Landlord include its successors in title but
references to the Tenant and the Guarantor shall mean only the Tenant
and the Guarantor named in this deed.
67
2.5 Obligations undertaken by more than one person are joint and several
obligations.
2.6 Words importing persons include firms companies and corporations and
vice versa.
2.7 Words importing one gender shall be construed as importing any other
gender.
2.8 Words importing the singular shall be construed as importing the plural
and vice versa.
3. SUPPLEMENTAL DEED
This deed is supplemental to the Lease.
4. DEPOSIT
4.1 The Tenant on the date of this deed has paid the Initial Deposit into
the Account.
4.2 The Deposit Balance is the property of the Tenant but is subject to the
charge created by CLAUSE 8.2 and shall not be repayable to the Tenant
otherwise than in accordance with the provisions OF CLAUSE 7.
4.3 The Tenant must at all times maintain the Deposit Balance in a sum
equivalent to the Rent Deposit.
4.4 If the Deposit Balance is at any time less than the Rent Deposit, the
Tenant must within five working days of written notice from the Landlord
(and notwithstanding any dispute of any kind whatsoever as to any
withdrawal from the Account by the Landlord) deposit in the Account a
sum equal to the difference between the Deposit Balance and the Rent
Deposit.
4.5 All bank charges in respect of creation, maintenance, operation and
closure of the Account shall be payable by the Tenant and if the Tenant
shall fail to pay them may be withdrawn by the Landlord from the Account
to meet their payment.
5. WITHDRAWALS
5.1 The Landlord may at any time withdraw from the Account an amount equal
to the Liabilities.
5.2 Notice of any withdrawal including the amount withdrawn and reasonable
details of the relevant Default shall be given by or on behalf of the
Landlord to the Tenant.
6. INTEREST
6.1 All Interest earned in respect of the Account shall be paid (net of any
tax required to be deducted) to the Tenant yearly. No payment of
Interest shall be made if there is at the date for payment any Default
or if as a result of the payment the Deposit Balance will be less than
the Initial Deposit/specified sum.
6.2 The Tenant is responsible for and must pay all tax on the Interest save
to the extent that such tax may already have been deducted by the
Landlord.
68
7. TRANSFER OF REVERSION
7.1 If the Landlord transfers the reversion immediately expectant upon the
determination of the Term then the Landlord shall:
7.1.1 assign the benefit of this deed to the transferee of the reversion;
and
7.1.2 procure that the transferee of the reversion, no later than the date
of the transfer, covenants in a deed with the Tenant to observe and
perform the obligations of the Landlord under this deed.
7.2 On delivery of the deed of covenant referred to in CLAUSE 6.1.2 to the
Tenant the Landlord (being the transferor) will cease to be liable for
any default in compliance with any provision contained in this deed.
8. RELEASE OF RENT DEPOSIT
If the Tenant has fully complied with all the covenants and conditions
contained in the Lease and in this deed then the Landlord will repay the
Deposit Balance to the Tenant (or as the Tenant may direct) 10 working
days after the earliest to occur of the following:
8.1 the Landlord receiving notice of an assignment in accordance with the
Lease following a Permitted Assignment of the Lease by the Tenant; or
8.2 the expiration or sooner determination of the Term.
8.3 [the occurrence of the relevant release event referred to in the Seventh
Schedule of the Lease - Note relevant event to be inserted on entry in
to Rent Deposit Deed].
9. CHARGE
9.1 The Tenant warrants to the Landlord that at all sums from time to time
in the Account are and will at all times be free of any Encumbrance
other than that referred to in CLAUSE 8.2.
9.2 The Tenant with full title guarantee charges by way of fixed charge all
its interest in the Account and the Deposit Balance as security for the
payment or reimbursement (as the case may be) to the Landlord of the
Liabilities.
9.3 The Tenant covenants that it will execute any document or take any
action the Landlord reasonably requires in order to perfect the security
referred to in CLAUSE 8.2.
9.4 The security referred to in CLAUSE 8.2 is in addition to and is not to
merge with, prejudice, affect or be affected by any other security
interest of the Landlord as regards the Tenant.
10. GENERAL PROVISIONS
10.1 The Landlord's rights of re-entry contained in the Lease will be
exercisable on any default by the Tenant in compliance with any
provision contained in this deed as well as on the happening of any of
the events mentioned in the Lease.
10.2 The provisions of this deed will not in any way lessen or affect the
Tenant's or any guarantor's obligations under the Lease or lessen the
Landlord's rights to take any action or
69
proceedings under the Lease in respect of any default by the Tenant in
complying with any of the covenants or conditions contained in the
Lease.
10.3 The provisions of the Lease as to service of notices are to apply to
this deed.
10.4 If any clause or any provision contained within a clause of this deed
shall be or shall subsequently be found by a court of competent
jurisdiction to be invalid, void or otherwise unenforceable it shall not
affect the remainder of this deed which shall remain in full force and
effect.
11. GUARANTOR
11.1 The Guarantor consents to the provisions of this deed and confirms that
the Guarantor's obligations contained in the Lease as supplemented by
this deed remain in full force and effect.
11.2 The Guarantor covenants with the Landlord as a primary obligation that
the Tenant or the Guarantor will observe and perform all the obligations
on the part of the Tenant contained in this deed and in the case of
default by the Tenant the Guarantor will pay and make good to the
Landlord on demand all losses, damages, costs and expenses arising from
such default and will observe and perform all the obligations on the
part of the Tenant contained in this deed and agrees that no time
concession or indulgence granted to the Tenant by the Landlord nor any
variation of the terms of the Lease or of this deed nor any other thing
by virtue of which but for this provision the Guarantor would have been
released will in any way release the obligations of the Guarantor to the
Landlord under this clause or the Lease as supplemented by this deed.
11.3 The Guarantor agrees not without the consent of the Landlord to exercise
any of its rights of reimbursement or indemnity against the Tenant or
any other person who is liable and not to seek to benefit from or to
stand in the place of the Landlord in respect of any security or other
right or remedy (including without limitation the Rent Deposit) now or
hereafter held by or accruing to the Landlord in respect of the
Liabilities.
12. CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
Unless expressly stated nothing in this deed will create any rights in
favour of any person pursuant to the Contracts (Rights of Third Parties)
▇▇▇ ▇▇▇▇.
13. EXECUTION
IN WITNESS of which the Landlord, the Tenant and the Guarantor have caused
their Common Seals to be affixed to this deed which is intended to be and
is delivered the day and year first before written but not before.
70
Executed as a Deed by [WP ▇▇▇▇▇] )
acting by [ ] )
pursuant to a power of attorney dated )
[ ] )
in the presence of:-
Name
Address
Occupation
Counterpart
Executed as a Deed by )
POLESTAR ▇▇▇▇▇ LIMITED )
acting by two Directors or )
a Director and Secretary )
Director
Director/Seceretary
Executed as a Deed by )
POLESTAR ▇▇▇▇▇ BINDERY )
LIMITED acting by )
two Directors or a Director and )
Secretary )
Director
Director/Secretary
71
Executed as a Deed by )
POLESTAR MAGAZINES & )
CATALOGUES LIMITED )
acting by two Directors or a )
Director and Secretary )
Director
Director/Secretary
Executed as a Deed by )
WATMOUGHS (HOLDINGS) )
LIMITED acting by two Directors )
or a Director and Secretary )
Director
Director/Secretary
Executed as a Deed by )
POLESTAR GROUP LIMITED )
acting by two Directors or a )
Director and Secretary )
Director
Director/Secretary
72
TENTH SCHEDULE
Form of Deed of Substitution of Surety
DATED [ ]
(1) [LANDLORD]
(2) [TENANT]
(3) [ORIGINAL SURETY COMPANY]
(4) [NEW SURETY COMPANY]
DEED OF SUBSTITUTION AND RELEASE
in respect of a Lease dated [ ]
Premises at Whitehall Road and ▇▇▇▇▇▇▇ Street Leeds
Nabarro ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇'▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Tel: ▇▇▇ ▇▇▇▇ ▇▇▇▇
73
DEED OF SUBSTITUTION AND RELEASE
DATE [ ]
PARTIES
(1) [ ]whose company registration number
is [ ] and whose registered office is at [ ]
(the "LANDLORD");
(2) [ ] whose company registration number is
[ ] and whose registered office is at [ ] (the
"TENANT");
(3) [ ] whose company registration number is [
] and whose registered office is at [ ]
(the "ORIGINAL SURETY COMPANY"); and
(4) whose company registration number is [ ] whose registered office is
situate at[ ] (the "New SURETY COMPANY").
RECITALS
(A) This Deed is supplemental to a lease (the "LEASE") dated [ ]
made between (1) [WP ▇▇▇▇▇] (2) POLESTAR ▇▇▇▇▇ LIMITED (3) POLESTAR ▇▇▇▇▇
BINDERY LIMITED, POLESTAR MAGAZINES & CATALOGUES LIMITED, WATMOUGHS
(HOLDINGS) LIMITED and POLESTAR GROUP LIMITED whereby the premises briefly
known as premises at Whitehall Road and ▇▇▇▇▇▇▇ Street, Leeds (the
"PREMISES") were demised by the Landlord to the Tenant for a term of
expiring on [ ] subject to the rents and on the terms and conditions
therein appearing.
(B) The Original Surety Company joined as a party to the Lease to guarantee to
the Landlord the payment by the Tenant of the rents reserved by the Lease
and the performance and observance by the Tenant of the covenants on its
part contained in the Lease.
(C) It has been agreed between the New Surety Company and the Original Surety
Company that the New Surety Company shall offer its own guarantee of the
covenants under the Lease on the same terms, mutatis mutandis, as and in
substitution for the guarantee of the Original Surety Company and that the
New Surety Company shall assume the obligations of the Original Surety
Company under the Lease.
(D) The Landlord and the Tenant consent to the substitution of the New Surety
Company for the Original Surety Company under the Lease.
74
IT IS HEREBY AGREED AS FOLLOWS:
14. RELEASE BY THE LANDLORD
In consideration of the covenant on the part of the New Surety Company
contained in CLAUSE 2 of this Deed the Landlord unconditionally releases
and discharges absolutely the Original Surety Company from further
performance of its obligations under the Lease and all documents and
agreements supplemental or collateral thereto and from all actions,
proceedings, damages, costs, claims and demands whatsoever arising out of
or in respect of the Lease or the Premises or in any other manner whether
arising prior to, on or subsequent to the date of this Deed.
13. ACCEPTANCE OF LIABILITY BY THE NEW SURETY COMPANY
In consideration of the release by the Landlord contained in CLAUSE 1 of
this Deed the New Surety Company hereby assumes the liabilities of the
Original Surety Company under the Lease and agrees and covenants with the
Landlord and the Original Surety Company to perform all the duties and to
discharge all the obligations of the Original Surety Company under the
Lease and any agreements supplemental or collateral thereto and to be
bound by the terms and conditions of the Lease and any agreements
supplemental or collateral thereto in every way as if it were named
therein as a party ab initio in place of the Original Surety Company.
14. ACCEPTANCE BY THE LANDLORD
The Landlord accepts the liability and guarantee of the New Surety
Company.
15. LEASE IN FORCE
The terms and conditions of this Deed represent the entire agreement
between the parties relating to the substitution of the New Surety Company
for the Original Surety Company and except as specifically amended by this
Deed all the terms and conditions of the Lease and any agreements
supplemental or collateral thereto remain in full force and effect.
16. CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
No person who is not a party to this Deed (a "third party") has or shall
have any right under the Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇ to
enforce any term of this Deed and no consent of any third party shall be
required under that Act to any cancellation or variation of this Deed.
IN WITNESS of which this deed has been duly executed and is delivered on the
date written at the beginning of this deed.
75
Executed as a Deed by )
POLESTAR ▇▇▇▇▇ LIMITED )
acting by two Directors or )
a Director and Secretary )
[ILLEGIBLE] Director
[ILLEGIBLE] Director/Secretary
Executed as a Deed by )
POLESTAR ▇▇▇▇▇ BINDERY )
LIMITED acting by )
two Directors or a Director and )
Secretary )
[ILLEGIBLE] Director
[ILLEGIBLE] Director/Secretary
Executed as a Deed by )
POLESTAR MAGAZINES & )
CATALOGUES LIMITED )
acting by two Directors or a )
Director and Secretary )
[ILLEGIBLE] Director
[ILLEGIBLE] Director/Secretary
76
Executed as a Deed by )
WATMOUGHS (HOLDINGS) )
LIMITED acting by two Directors )
or a Director and Secretary )
[ILLEGIBLE] Director
[ILLEGIBLE] Director/Secretary
Executed as a Deed by )
POLESTAR GROUP LIMITED )
acting by two Directors or a )
Director and Secretary )
[ILLEGIBLE] Director
[ILLEGIBLE] Director/Secretary
77