EXHIBIT 10.38
DATED: January 30, 2001
▇ ▇ ▇▇▇▇ Ltd
To
BioProgress Limited
with
BioProgress Inc
Lease
of
▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ March
Dawbarns
Solicitors
▇/▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇ ▇▇▇
INDEX
PARTICULARS
DEFINITIONS
INTERPRETATION
DEMISE
INSURANCE
TENANT'S OBLIGATIONS
Rents and other payments
Repair and decoration
Alterations and additions
User
Alienation
Entry
Planning Acts
New Guarantor
Superior interest
Material development
Indemnity
COVENANTS BY THE LANDLORD
Quiet enjoyment
Superior Lease rents
PROVISOS
Re-entry
Adjoining land
No liability in damages
Failure to perform obligations
Statutory compensation
Exclusion of rights not granted
Tenant's acknowledgement
COVENANTS BY AND PROVISIONS RELATING TO THE SURETY
THE FIRST SCHEDULE
Rights and easements granted
THE SECOND SCHEDULE
Rights and easements excepted
THE THIRD SCHEDULE
Provisions for Rent review
THE FOURTH SCHEDULE
Covenants by the Surety
THE FIFTH SCHEDULE
Memoranda of Rent Reviews
THE SIXTH SCHEDULE
Authorised Guarantee Agreement
PARTICULARS
1 DATE OF THIS DEED: January 30, 2001
2 LANDLORD: ▇ ▇ ▇▇▇▇ Limited, whose registered office is at ▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ (CRN3998705)
3 TENANT: BioProgress Technology Limited, whose registered
office is at ▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ (CRN3289265)
4 SURETY: BioProgress Technology International Inc of ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, a company
incorporated in the USA and governed by law of the
State of Nevada, USA
5 ADVANCED PAYMENT: (pound)100.00 per quarter
6 ALTERNATIVE USE:
CLASS Classes A1 A2 B1 B2 and B8 of the 1987 Order or such
uses which are equivalent to those specified (as at
the Date hereof) in the said Order in the event of
re-enactment repeal or otherwise
7 COMMENCEMENT DATE: June 1, 2001
8 DEMISED PREMISES: That part of the Estate comprising the building known
as Unit 1 with associated car parking service yard
and landscaped areas as shown edged red on Plan 1
including Conduits within the Demised Premises and
which serve it exclusively
9 ESTATE: The Landlord's Estate at Hostmoor Avenue, March
Cambridgeshire edged blue on Plan 1
11 EXPIRY DATE OF TERM: June 1, 2026
12 LANDLORD'S: The period from the day of
FINANCIAL YEAR: in one year to the day of
in the Following year or such other period as the
Landlord May in its absolute discretion determine.
13 SERVICE AREA: The land coloured green on Plan 1 or such other
place or places on the Estate as the Landlord may
from time to time at its discretion designate
14 ACCESS WAY: The land coloured ▇▇▇▇▇ on Plan 1
15 INITIAL RENT: One hundred and twenty three thousand pounds per
annum exclusive together with VAT at the rate
current at the relevant tax point (if applicable)
subject to review under the Third Schedule
16 RENT COMMENCEMENT:
DATE June 1, 2001
17 RENT REVIEW DATES: June 1, 2006, 2011, 2016, 2021, 2026
18 RENT REVIEW INTERVALS: Five Yearly
19: TERM: Twenty-five years (25)
20: USER: The research and development of plastic products and
for the sale of all goods associated therewith or
ancillary thereto
21: PLANT AREA: The part of the demised Premises hatched green on
Plan 1
THIS LEASE made on the date stated in the Particulars
BETWEEN
1) the Landlord
2) the Tenant
3) the Surety
WITNESSES:
1. DEFINITIONS
In this lease the following expressions (where the context so admits) shall have
the following meanings:
"Act" Every Act of Parliament or EEC Regulation (whether
specifically named herein or not) which may be
relevant to the Demised Premises its user or
anything on the Demised Premises or to the
persons employed or having recourse thereto whether
or not in force at the date hereof and shall
include any statutory re-enactment or modification
thereof and any order regulation directive bye law
rule consent licence or code of practice granted
required or issued thereunder or by any public or
local authority or by any court or body of
competent jurisdiction.
"Common Parts" Those parts of the Estate which are provided by the
Landlord for common use and enjoyment by the Tenant
and occupiers of the Estate and all persons
expressly or by implication authorised by them
including the Access Way and Service Yard serving
the Demised Premises
"Conduit" Any conducting medium or other thing by means of
which any facility service or matter may pass.
"Demised Premises" The whole and every part of the land described in
the particulars
"Environmental Acts" The Public Health ▇▇▇ ▇▇▇▇ The Clean Air ▇▇▇ ▇▇▇▇
The Control of Pollution ▇▇▇ ▇▇▇▇ TheWater ▇▇▇
▇▇▇▇ and The Environmental Protection Act 1990
"Estate" The Landlord's estate referred to in-the
Particulars and of which the Demised Premises forms
part
"Insolvency Act" The Insolvency ▇▇▇ ▇▇▇▇ (subject to the definition
of `Act' herein contained)
"Insured Risks" The risks insured against under Clause 4.1
"Interest" Interest at the rate of 5% above Lloyd's TSB Bank
Plc Base Rate for the time being payable from the
date of demand by the Landlord (or if earlier the
date at which moneys shall have become due or at
which the Landlord shall have expended moneys in
respect of which interest is required appropriate)
under this lease) until the date of payment to the
Landlord compounded with quarterly rests on the
usual quarter days PROVIDED that if such base rate
shall cease
to exist the rate shall be such as the Landlord
shall reasonably determine as being that most
comparable therewith
"Landlord" Shall include the person entitled for the time
being to the reversion to this Lease
"Landlord's Fixtures" The Landlord's fixtures and fittings (if any)
specified in the seventh Schedule
"Management Services" The cost of cleaning lighting repairing
maintaining rebuilding and renewing the Common
Parts and all walls fences gutters drains pipes
sewers roadways parking areas circulation areas
pavements and entrance ways and of planting
replanting and generally maintaining any
landscaped areas and any other easements things or
conveniences which shall at any time during the
Term belong to or be capable of being used or
enjoyed by the Demised Premises or the Tenant or
occupier thereof or any part thereof in common or
jointly with any other person or persons and any
other act or thing done in or about or in
connection with the Estate reasonably calculated
to be for the benefit of the Tenant (either alone
or in conjunction with other tenants of the
Landlord) but not otherwise provided for herein
"Outgoings" All existing and future rates taxes duties charges
assessments impositions and outgoings but excluding
any tax imposed on the Landlord in respect of
receipt of rent or other payment made by the Tenant
under this Lease or any disposition or dealing with
the ownership of the reversion of this Lease
"Particulars" The details on the preceding pages headed
"Particulars"
"Plan 1" Plan 1 annexed hereto
"Planning Acts" ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ the
Planning (Listed Buildings and Conservation Areas)
▇▇▇ ▇▇▇▇ the Planning (Hazardous Substances) ▇▇▇
▇▇▇▇ the Planning (Consequential Provisions) ▇▇▇
▇▇▇▇ and the Planning and Compensation ▇▇▇ ▇▇▇▇
"Regulations" Such reasonable regulations as the Landlord may
make in accordance with good estate management from
time to time in connection with the management of
the Common Parts or any services thereon or therein
of which the tenant has been given a copy
"Requisite Notice" A notice in writing to the Tenant seventy-two
hours before any entry is made on the Demised
premises PROVIDED THAT in the case of an emergency
no notice shall be required
"Service Charge" The reasonable and proper costs expenses
and outgoings reasonably and properly incurred by
the Landlord in providing the Management Services
"Surety" Shall include if he is an individual his personal
representatives
"Tenant" Shall include the Tenant's successors in title and
if he is an individual his personal representatives
"Term" The term mentioned in the Particulars which shall
include any extension or continuation whether by
statute or at common law
"Termination Date" The date of expiration or sooner determination of
the Term
"VAT" Value Added Tax or any tax amending or replacing it
"1987 Order" The Town & Country Planning (Use Classes)
order 1987 and (but only if the Landlord shall so
elect in writing) any amendment
"The Permitted Part" Such part of these demised premises as shall be
designated as such by the Tenant subject to the
prior written approval of the Landlord (such
approval not to be unreasonably withheld or
delayed) provided that the landlord shall not be
required to approve more than one permitted part.
2. INTERPRETATION
In this Lease:
2.1 The Particulars shall be included in and form part of this lease.
2.2 I there is more than one person as the Tenant or the Surety the singular
shall include the plural and the covenants by such persons shall be joint
and several
2.3 Where any act is prohibited the Tenant shall not allow or suffer such
act to be done
2.4 Where the Landlord or any other person exercises any rights to enter the
Demised Premises under this lease unless specifically provided herein to
the contrary the person exercising such right will make good any damage
caused with all due diligence and speed to the Demised Premises but
neither such person nor the Landlord shall be liable for any compensation.
2:5 If this Lease shall at any time be an underlease any provision in this
Lease
2:5:1 Requiring the Tenant to obtain the consent or approval of the
Landlord shall be deemed to include a requirement for the Tenant
also to obtain the consent or approval of all superior landlords on
the same basis as required under this Lease and the reasonable and
proper costs and expenses of obtaining such consent (whether or not
consent is granted) shall be a debt due by the Tenant to the
Landlord and shall be repaid on demand with Interest
2:5:2 Entitling the Landlord to enter on the Demised Premises shall be
Deemed to authorise all superior Landlords so to enter
2:5:3 Authorising the Landlord (and by virtue of the preceding sub-clause
any superior landlord) to enter the Demised Premises shall extend to
those authorised by it or them
2:5:4 Requiring the Landlords consent which cannot be unreasonably
withheld or delayed the Superior Landlord shall not unreasonably
withhold its consent
2:6 Reference to any Act includes any Act amending
modifying re-enacting or replacing it
3. Demise
The Landlord DEMISES to the Tenant ALL THOSE the Demised Premises TOGETHER
with the Landlord's Fixtures AND TOGETHER with the easements and rights
specified in the First Schedule EXCEPTING AND RESERVING to the Landlord
the rights and easements specified in the second Schedule TO HOLD the
Demised Premises to the Tenant from and including the Commencement Date
for the Term SUBJECT to those matters contained or referred to in a
conveyance dated 28th September 1988 between ▇▇▇▇▇▇ Commercial
Developments (London) Limited (1) and Hostmoor Limited (2) and ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ (3) YIELDING AND PAYING
3.1 Yearly and Proportionately for any fraction of a year from and from and
including the Rent Commencement Date the insurance rent as determined
pursuant to Clause 4.2 hereof and the Service Charge Rent
3.2 Interest Value Added Tax and all other sums whatsoever as shall become
payable by the Tenant to the Landlord under the provisions of this Lease
which are all hereby reserved as rent
4. Insurance
The Landlord covenants with the Tenant to:
4.1 insure the Demised Premises subject to such usual and reasonable excesses
exclusions or limitations as the Landlord or its Insurers may require in
such reputable insurance office or with such underwriters and through such
agency as the Landlord may from time to time decide in such sum as the
Landlord may reasonably estimate as the full reinstatement value of the
Demised Premises or such higher value as the Tenant may reasonably require
including demolition site clearance and shoring up Architects and
surveyors and other professional fees and incidental expenses and value
added tax on such items against such of the following and such other risks
as the Landlord may from time to time deem necessary or appropriate in so
far as the same are obtainable on normal commercial terms
4.1.1 Loss or damage by fire explosion storm tempest (including Lightning)
flood burst or overflowing pipes and tanks sprinkler damage
subsidence leave earthquake impact from vehicles aircraft (other
than hostile aircraft) and other aerial devices and articles dropped
therefrom riot civil commotion and malicious damage
4.1.2 Public and property owner's liability of the Landlord
4.1.3 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 for the purposes of
planning and carrying out any such reinstatment
4.2.1 At the reasonable request of the Tenant the Landlord will produce
evidence of such insurance and of the payment of the last premium
4.2.2 To notify the Tenant of any change in the risks covered under the
policy within 28 days of the Landlord becoming so aware
4.2.3 To use reasonable endeavours to procure that the interest of the
Tenant is noted or endorsed on the Policy
4.3 If any part of the Demised Premises or the access to it is damaged by any
of the Insured risks which the Landlord has covenanted in the Lease to
insure or by any additional risk against which the Landlord has insured
and the Demised Premises or any part of it is unfit for use and if 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 or on the
Demised Premises at its invitation or with its consent then a fair
proportion in accordance with the nature and extent of the damage of the
Rent and Service Charge shall be suspended until the Demised Premises
shall be fit use and any dispute regarding 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 Acts 1950
and 1979
4.4 If the Demised Premises are damaged by any of the Insured Risks which the
Landlord has covenanted in the Lease to insure or by any additional risk
against which the Landlord has insured then subject to paragraph 4.5 below
and subject to the Landlord being able to obtain all necessary consents
the Landlord will lay out the net proceeds of such insurance in
reinstating the insured premises and the Tenant will pay to the Landlord
on demand the amount equivalent to any excess which may be applicable to
such insurance in respect of the Demised Premises and any shortfall shall
be made up by the Landlord
4.5.1 Whenever the Building is destroyed or damaged by any risk against which
the Landlord has covenanted in this Lease to insure or by any additional
risk against which the Landlord has insured and the Demised Premises or
the Building or any part of it is still unfit for occupation and use three
years after the date upon which it first became unfit either party may for
so long as the Demised Premises or the Building or part remains unfit
serve on the other a notice referring to this clause where upon this Lease
will immediately come to an end
4.5.2 Termination under the preceding clause will not affect any rights that
either party may have against the other
4.6 The Landlord shall not be obliged to comply with the obligations under
Clause 4.4 hereof if payment of the insurance moneys has been refused in
whole or in part by reason of any act or default of the Tenant or anyone
under its control or on the Demised Premises at its invitation or with its
consent and the Tenant has not complied with Clause 4.7.2 hereof
4.7 The Tenant hereby covenants with the Landlord
4.7.1 To pay the Landlord within 14 days of demand the amount of the
premium for insuring the Demised Premises against the Insured Risks
from the commencement Date as conclusively determined by the
Landlord
4.7.2 If the payment of any insurance moneys is refused due to an act or
default of the Tenant to pay to the Landlord on demand the amount so
refused and also to pay to the Landlord on demand the amount of any
excess as mentioned in Clause 4.4
4.7.3 Not to do anything which may prejudice any policy of insurance for
the time being in force in respect of any part of the Demised
Premises or the Building or any nearby premises or which may result
in such insurance becoming void or voidable or the rate of premium
under such insurances
being increased and at all times to comply with all requirements of
the insurers of the Demised Premises
4.7.4 To keep the Demised Premises supplied with such fire fighting
equipment as the insurers of the Demised Premises may reasonably
require and the competent Fire Authority may require or as the
Landlord may reasonably require and to maintain such equipment to
the satisfaction of all such persons
4.7.5 Not to store inflammable or explosive substances or goods at the
Demised Premises and in respect of which the Insurers have been
notified and given their written consent nor to obstruct the access
to any fire equipment or the means of escape from or over the
Demised Premises and in the event of anything happening which might
affect any insurance policy relating to the Demised Premises
forthwith to give notice to the Landlord
4.7.6 To insure in the joint names of the Landlord and Tenant all plate
glass in the Demised Premises against breakage or damage in its full
reinstatement value for the time being with an insurance office or
underwriters approved in writing by the Landlord such approval not
to be unreasonably withheld or delayed and to produce to the
Landlord on reasonably demand evidence of such insurance and the
payment of the current year's premium and to lay out all monies
received from such insurance forthwith in reinstating the plate
glass and to make up any deficiency from the Tenant's own moneys and
subject hereto not to effect any insurance over the Demised Premises
in respect of any of the Insured Risks
4.7.7 To reimburse to the Landlord on demand the reasonable and proper
cost of valuations for insurance purposes which the Landlord shall
cause to be made from time to time but not more frequently than once
in every three years
5. Tenant's Obligations
The Tenant further COVENANTS with the Landlord:
5.1 Rents and other payments
5.1.1 To pay the rents reserved by this Lease without deduction or set off
in accordance with its terms and in the event that any rent shall be
unpaid for more than fourteen days after the due date (whether
formally demanded or not) then in addition to pay Interest thereon
from such due date until actual payment
5.1.2 To pay every other sum due under this Lease on the due date and in
default to pay Interest thereon in addition from such due date until
actual payment
5.2 Repair and decoration
5.2.1 At all times to repair and to keep the Demised Premises and the
Landlords's fixtures in good and substantial repair and condition
free from all defects whether or not inherent in the Demised
Premises 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 which the Landlord has
covenanted in this Lease to insure or by any additional risk against
which the Landlord has insured excepted unless payment of the
insurance moneys shall be withheld in whole or in part by reason
solely or in part of any act or omission of the Tenant or anyone
under its control or any person on the Demised Premises at its
invitation or with its consent) and if the Tenant shall fail fully
to comply with the provisions of this Clause to pay to the Landlord
(notwithstanding the termination of this Lease) immediately prior to
the termination of this Lease for the period reasonably required by
the Landlord
5.2.1.1 To prepare a schedule of dilapidations provided that the
Landlord shall have used all reasonable endeavours to do
so and to supply the Tenant with a copy of the same at
least three months prior to the termination of the Lease
5.2.1.2 To prepare a detailed specification of the work required
5.2.1.3 To obtain quotations for such work and
5.2.1.4 To carry out such works
5.2.2 To keep the Demised Premises and all Conduits within the Demised
Premises which exclusively serve the Demised Premises in a clean and
tidy condition and properly cleansed and free from obstruction and
in particular to clean all the inside of the windows and all other
inside glass in the Demised Premises monthly
5.2.3 Without prejudice to the generality of the foregoing during the
fifth year in respect of the interior of the Demised Premises and
during the third and every succeeding third year in respect of the
exterior and in either case in the last six months of the Term to
paint with a printing coat and two coats of good quality paint or
otherwise treat as the case may be all the wood and metalwork of the
Demised Premises usually painted or otherwise treated provided that
the Tenant shall not be required to decorate more than once in any
eighteen month period in a workmanlike manner to the reasonable
satisfaction of the Landlord and to paint or paper in a workmanlike
manner all walls and ceilings of the Demised Premises usually
painted or papered as the case may be such colours patterns and
materials as the Landlord may require and in every case materials of
the good quality only shall be used and also during the last three
months thoroughly to clean all other parts of the Demised Premises
and to repair or replace any of the Landlord's Fixtures which need
renewal or replacement
5.2.4 To repair or replace forthwith by new articles of similar kind and
quality any fixtures fittings or plant or equipment (other than
tenants or trade fixtures and fittings) in the Demised Premises
which shall become in need of replacement
5.2.5 To keep any part of the Demised Premises which may not be built upon
adequately surfaced in good condition free from weeds and the
Planted Area properly cultivated
5.2.6 At the reasonable request of the Landlord by at the cost of the
Tenant to enter into such contracts with such persons as the
Landlord may approve for the maintenance and repair of the Demised
Premises and/or the plant and machinery contained therein
5.3 Alterations and additions
5.3.1 That no new building or new structure of any kind shall at any time
be erected upon any part of the Demised Premises
5.3.2 Not to make any internal or external alterations or additions to any
part of the Demised Premises and not to cut maim or removed any
structural parts of the Demised Premises and not to make any change
in the existing design or appearance of the Demised Premises
PROVIDED ALWAYS that the Tenant may with the prior written consent
of the Landlord (such consent not to be unreasonably withheld or
delayed) carry out internal non-structural alterations to any
buildings for the time being erected on the Demised Premises
Provided That the Landlord shall have the right to require that such
alterations either remain or are removed at the determination of the
Term
5.4 User
5.4.1 At all times during the Term to use the Demised Premises in
accordance with the provisions for User specified in the Particulars
and not to use the same or any part for any other purpose and not to
permit the Demised Premises to remain vacant for more than eight
week in any period of twelve months except in so far as:
5.4.1.1 the Tenant may be prevented from doing so by reason of
destruction or damage to the Demised Premises by an
Insured Risk
5.4.1.2 May be necessary for the carrying out with all
reasonable speed of any substantial repairs alterations
or additions to the Demised Premises
5.4.1.3 To do so would be in breach of any other provision of
this Lease
5.4.1.4 There are circumstances outside the reasonable control
of the Tenant
PROVIDED THAT with the prior written consent of the Landlord (such consent
not to be unreasonably withheld or delayed) the Demised Premises may be
used for a use falling within the Alternative Use Class
5.4.2 Not to use any part of the Demised 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 and not to commit any
nuisance or do anything which may be or become an inconvenience or
cause damage or disturbance to the Landlord or any other person
5.4.4 Not to allow empty containers or rubbish of any description to
accumulate upon the Demised Premises elsewhere on the Estate
(unless properly stacked or placed within any refuse store
provided for that purpose) nor to discharge into any Conduit any
deleterious matter or any substance which might pollute or be or
become a source of danger or injury to the drainage system of the
Demises Premises of any other property or person
5.4.5 Not to use any part of the Demised Premises in such manner as to
subject it to any strain or interference which is not reasonable
or is in excess of that which the Demised Premises were designed
to bear and not to install machinery on the Demised Premises which
shall be unduly noisy or cause undue vibration
5.4.6 Not to do anything on the Demised 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
Demised Premises were designed to bear and are otherwise
reasonable
5.4.7 Not to erect or display any mast or pole flag signboard
advertisement inscription ▇▇▇▇ placard or sign whatsoever on the
Demised Premises or the windows thereof so as to be seen from the
exterior without the previous written consent of the Landlord
which shall not be unreasonably withheld in respect of a sign
stating the Tenant's name and business or profession (such sign if
the Landlord so requires to be removed and any damage caused
thereby made good by the Tenant at the Termination Date)
5.4.8.1 To comply with the Regulations made by the Landlord from time to
time
5.4.8.2 To notify the Landlord and the appropriate Local Police Officer of
the name and address and telephone number of two key holders of
the Demised Premises
5.4.9 Not to load or unload any vehicle outside the Demised Premises
unless the vehicle shall be in an area provided from time to time
for that purpose and not to obstruct or damage any part of the
Service Yard
5.4.10 To give written notice to the Landlord of any defect in the
Demised 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 Demised Premises
5.4.11 Not to stop up or paint out any windows at the Demised Premises
and not to permit any encroachment upon the Demised Premises or
the acquisition of any new right to light passage drainage or
other easement over any part of the Demised Premises and to give
as soon as reasonably practicable written notice to the Landlord
of any threat such encroachment or acquisition and at the
Landlord's written request and at the cost of the Tenant to take
such action as the Landlord may reasonably require to prevent such
encroachment or acquisition
5.4.12 To put and keep the Planted Area as a landscaped area and to
maintain the same in an attractive and proper manner and not to
cut lop fell maim or injure any trees or shrubs or bushes now
growing or to be planted thereon or any other part of the Demised
Premises without the prior written consent of the Landlord
5.4.13 Not to use the Service Are other than for the loading and
unloading of goods
5.5 Alienation
5.5.1 Not to assign charge underlet or part with or share Possession or
occupation of the whole or any part of the Demised Premises except
as provided in this subclause
5.5.2 Not to assign the whole of the Demised Premises without:
5.5.2.1 Procuring that any intended assignee (the Assignee) of
the Demised Premises enters into direct covenants with
the Landlord to pay the rents reserved by this Lease and
observe and perform all the Tenant's covenants in this
Lease from the date of the assignment or transfer of the
Tenant's interest hereunder to the Assignee for the
residue of the Term or until such interest is further
assigned (other than by an excluded assignment within
the meaning of Section 11 of the Landlord and Tenant
(Covenants) ▇▇▇ ▇▇▇▇ whichever is the shorter period
5.5.2.2 Obtaining the consent of the Landlord (such consent not
to be unreasonably withheld or delayed)
5.5.2.3 first entering into an Authorised Guarantee Agreement
within the meaning of Section 16 of the Landlord and
Tenant (Covenants) ▇▇▇ ▇▇▇▇ in substantially the form of
the draft set out in the Eighth Schedule
5.5.3 The Landlord may refuse the consent referred to at 5.5.2.2 above
where there is at the time of the Tenant's request for such consent
any outstanding rent due hereunder
5.5.4 If it is reasonable to do so the Landlord shall be entitled to
require as a condition precedent to the grant of the consent
referred to at 5.5.2.2 above the provision of a deed of Covenant
duly executed by one or two guarantors reasonably acceptable to the
Landlord by which he or they enter into covenants with the Landlord
in the form of the covenants set out in the Fourth Schedule
5.5.5 The power of the Landlord to decide upon any of the matters
requiring its decision under sub-clause 5.5.4 shall be exercised
reasonably
5.5.6 Not to underlet the whole or the permitted part of the Demised
Premises without obtaining the consent of the Landlord (such consent
not to be unreasonably withheld or delayed) nor otherwise than by an
instrument in writing approved by the Landlord (such approval not to
be unreasonably withheld or delayed) on the same terms and
conditions as this Lease so far as applicable to the premises
underlet, and:
5.5.6.1 containing an absolute prohibition against the
underlessee underletting charging parting with
possession or sharing the occupation of the premises
underlet or any part of them or assigning part of them
5.5.6.2 containing a covenant by the underlessee not to assign
the premises underlet without the prior written consent
of the Landlord under this Lease (such consent not to be
unreasonably withheld or delayed)
5.5.6.3 at a rent equal to the then market rent of the Demised
Premises without taking any fine or premium
5.5.6.4 containing provisions for the rent reserved by the
underlease to be reviewed in an upward direction only
with effect from the same dates on which the rent hereby
reserved is to be reviewed
5.5.6.5 containing provisionsfor the re-instatement of the
Demised Premises to a single unit in the case of a
sublease of a Permitted Part
5.5.6.6 containing or having endorsed upon it an agreement excluding
sections 24 to 28 of the Landlord and ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
authorised by an order of the court under section 38(4) of
that Act nor without procuring that any intended underlessee
enters into direct covenants with the Landlord under this
Lease to observe and perform the Tenant's covenants in this
Lease so far as applicable to the premises underlet and the
covenants to be contained in the proposed underlease by
virtue of the provisions of this paragraph 5.5
5.5.7 Not to waive or vary the covenants on the part of any underlessee
and the provisions for review of rent contained in any underlease
5.5.8 Notwithstanding the other provisions of this clause 5.5 The tenant
may share the occupation of the whole or any part of the Premises
with a company which is a member of the same group as the Tenant
(within the meaning of section 42 of the Landlord and Tenant Act
1954) or a member of or associated to the Cooperative Society for so
long as both companies shall remain members of the same group or a
member of or associated to the Cooperative Society and otherwise
than in a manner that creates or transfers a legal estate
5.5.9 Within one month after every assignment or sub-letting of the
Demised Premises and any devolution of this Lease to give notice
with full particulars to the Landlord or to his solicitors and to
pay on each occasion Such reasonable registration fee as the
Landlord or his solicitors shall specify and at the same time as the
notice shall be given to produce for inspection any assignment or
counterpart of the sub-lease
5.5.7 To produce on demand such evidence as the Landlord may require to
satisfy itself that the Tenants covenants in the Lease have been
complied with
5.6 Entry
5.6.1 To permit the Landlord at all reasonable times upon Requisite Notice
to enter upon the Demised Premises:
5.6.1.1 To examine their condition and to take schedules of
repairs and the like and inventories of fixtures and
fittings plant and machinery
5.6.1.2 To execute any works of construction repair decoration
or any other nature on any adjoining or neighbouring
premises or to 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
Demised Premises
5.6.1.3 For any other purpose connected with the interest of the
Landlord in the Demised Premises including (without
prejudice to the generality of the foregoing) 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 Demised
Premises
5.6.1.4 Where the Tenant or occupier of the Demised Premises
will have no right to renew this Lease under the
Landlord and ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ or has lost that right to
permit the Landlord or his agent in the last six months
of the Term of affix a sign or signs indicating that the
Demised Premises are to let
5.6.2 If as a result of an inspection or otherwise the Landlord Becomes
aware of any breaches of covenant by the Tenant hereunder the
Landlord may give notice in writing thereof to the Tenant and the
Tenant shall immediately in the case of emergency or otherwise
within such reasonable period as the Landlord shall stipulate remedy
such breach of covenant in accordance with such notice and the
covenants contained in the Lease to the reasonable satisfaction of
the Landlord AND if the Tenant shall fail within a reasonable time
of such notice or immediately in case of emergency to commence and
diligently and expeditiously continue to comply with such notice or
if the Tenant shall at any time make default in the performance of
any of the covenants contained in this Lease for or relating to the
repair decoration or maintenance of the Demised Premises then
(without prejudice to right or re-entry and forfeiture hereinafter
contained) the Landlord may enter or in the case of emergency break
and enter upon the Demised Premises 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 in such circumstances the
Landlord shall be under no liability to make good any damage
whatsoever and all reasonable and proper costs of all such works and
all expenses incurred in remedying such defaults in each case shall
be paid by the Tenant to the Landlord on demand
5.7 Planning Acts and Environmental Acts and Acts generally
5.7.1 To comply with all Acts (including without prejudice to the
generality of the foregoing the Planning Acts and the Environmental
Acts)
5.7.2 At its own 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 the use of any
part of the Demise Premises and fully to comply with the conditions
of any statutory authorisations
5.7.3 To take all necessary steps to prevent the Demised Premises
(including the land thereof) from being polluted by any act or
process carried out by the Tenant and forthwith to clean up any
pollution so caused
5.7.4 To pay to the Landlord any clean up costs incurred by theLandlord as
a result of the Tenant's failure to comply with Clause 5.7.3 whether
such costs are incurred during or after the expiration of the Term
5.7.5 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 shall not be
unreasonably withheld or delayed
5.7.6 Unless the Landlord shall otherwise in writing direct to carry out
before the Termination Date any works stipulated to be carried out
to the Demised 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
5.7.7 If reasonably required by the Landlord but at the cost of the Tenant
to appeal against any refusal of Planning Permission or against the
imposition of any conditions on a planning permission in either case
made pursuant to an application therefore under this sub-clause
5.7.8 Not to do anything in the Demised 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
5.7.9 As soon as reasonably practicable on the receipt of notice thereof
to give full particulars to the Landlord of any permission notice
order or proposal relevant to the Demised Premises or to the use
therof given to the Tenant or the occupier of the Demised Premises
(together with a copy of any notice permission letter or document)
under the Planning Acts or any other Act and without delay to take
all necessary steps to comply therewith the written approval of the
Landlord (such approval not to be unreasonably withheld) and also at
the request and cost 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 shall reasonably require
5.8 Outgoings costs and fees
5.8.1 To pay and discharge all Outgoings which now are or may be charged
levied assessed or imposed upon the Demised Premises or upon the
owner or occupier thereof and to pay bear and discharge the
proportion properly and fairly attributable to the Demised Premises
of any Outgoings as may be charged levied assessed or imposed upon
any premises of which the Demised Premises form part such proportion
to be determined by the Surveyor for the time being to the Landlord
whose decision shall be final provided that the Landlord's Surveyor
shall use proper skill and judgement and not to make any claim for
relief against Outgoings payable in respect of the Demised Premises
without the Landlord's prior written consent provided that such
consent shall not be unreasonably withheld or delayed
5.8.2 To pay to the Landlord on demand a due proportion to be conclusively
determined by the Landlord's Surveyor of all costs charges and
expenses including Surveyor's and other professional fees (if any)
and including a management charge of 10% of such costs charges
expenses and fees incurred in connection with or relating to or
making future provision for Management Services
5.8.3 To pay to the Landlord on demand all reasonable and proper costs
charges and expenses (including professional advisers' costs and
fees) incurred by the Landlord or any Superior Landlord
5.8.3.1 In or in proper contemplation of any proceedings under
Section 146 or 147 of the Law of Property ▇▇▇ ▇▇▇▇
including the preparation and service of notice
thereunder (notwithstanding forfeiture is avoided
otherwise than by relief granted by the Court)
5.8.3.2 In the preparation and service of any schedule of
dilapidations at any time during or after the Term
5.8.3.3 In connection with any breach of covenant by or the
recovery of arrears of rent due from the Tenant
hereunder
5.8.3.4 In respect of any application for consent required by
this Lease Whether or not such consent be granted save
where consent is unreasonably withheld
5.8.3.5 In the negotiation preparation and completion of this
Lease and the counterpart thereof
5.8.4 If any payments are to be made by the Tenant under this Lease to the
Landlord or any person on the Landlord's behalf the Tenant shall pay
any VAT which is or may become payable in respect thereof together
with interest PROVIDED always that the person to whom such payments
are to be made shall (if appropriate) have elected to waive its
exemption from VAT and in any event shall have supplied the Tenant
with an appropriate VAT invoice
5.9 New Guarantor
Within fourteen days of the Tenant becoming aware of the death during the
Term of any person who has or shall have guaranteed to the Landlord the
Tenants 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 if so required by the Landlord at the
expense of the Tenant within twenty eight days to procure some other
person reasonably acceptable to the Landlord to execute a guarantee in
respect of the Tenants obligations contained in this Lease incorporating
the covenants set out in the Fourth Schedule hereto
5.10 Superior Interest
If this Lease shall at any time be an underlease to comply with all the
tenant's covenants contained in all superior leases (other than the
covenants to pay rent) provided that they are no more onerous on the
Tenant than those contained in this Lease as if such covenants were set
out in this Lease in full as covenants to be performed by the Tenant
5.11 Material Development
Unless required to enable the Tenant to use the Demised Premises in
accordance with clause 5.4.1 of this Lease or to comply with any other
provisions of this Lease not to carry out on any part of the Demised
Premises any development for which planning permission may be required or
which may lead to a fiscal imposition on the Landlord unless the Landlord
shall agree thereto in writing (which agreement may be given on such terms
and subject to such conditions as the Landlord shall in its absolute
discretion determine)
5.12 Indemnity
To keep the Landlord fully indemnified against all damages losses costs
expenses proceedings and liabilities arising directly or indirectly out of
the existence state of repair or user of the Demised Premises any breach
of the Tenants covenants herein contained
6 Covenants by the landlord
6.1 The Landlord COVENANTS with the Tenant as follows:
6.1.1 Quiet enjoyment- that the Tenant paying the rents reserved observing
and performing its covenants and conditions contained in this Lease
may peaceably and quietly hold and enjoy the Demised Premises
without any lawful interruption by the Landlord or any person
rightfully claiming through under or in trust for it
6.1.2 Superior Lease rents
6.1.2.1 To pay the rents reserved by any superior lease for the
time being in force and to comply with the terms of any
superior lease in relation to all parts of the Building
not comprised in the Demised Premises
6.1.2.2 On the request of the Tenant to use all reasonable
endeavours to enforce the covenants on the part of the
Superior Landlord and to use all reasonable endeavours
to obtain the consent of any superior landlord required
under any superior lease when:
a) The Tenant has applied for consent under this Lease
b) The Landlord gives consent or could not reasonably
refuse it or gives it subject to conditions being
obtainable fromany superior landlord or
c) Consent is required under any Superior Lease
7. Provisos
IT IS HEREBY AGREED AND DECLARED as follows:
7.1 Re-entry
Notwithstanding and without prejudice to any other remedies and powers
herein contained or otherwise available to the Landlord if the rents
reserved or any part thereof shall be unpaid for twenty one days after
becoming payable whether formally demanded or not or if any covenant on
the Tenant's part or condition contained in this Lease shall not be
performed or observed or if the Tenant's for the time being (being a
Company) enters into liquidation whether compulsory or voluntary (save for
the purpose demonstrated to the Landlord's satisfaction of reconstruction
or amalgamation whilst solvent) or passes a resolution for winding up
(save as aforesaid) or is unable to pay its debts within the meaning of
Sections 122 and 123 of the Insolvency Act or summons a meeting of its
creditors or any of them under Part 1 of the Insolvency Act or suffers a
petition for an Administration Order in respect of it to be file din Court
or suffers a receiver or administrative receiver to be appointed or being
an individual or being more than one individual anyone of them has a
receiving order made against him or becomes bankrupt or is unable to pay
or has no reasonable prospect of being able to pay his debts within the
meaning of Sections 267 and 268 of the Insolvency Act or if the Tenant (or
if there is more than one Tenant any of them) enters into composition with
his or their creditors or suffer any distress or execution to be levied on
his or their goods or if an interim order Is made under Part VIII of the
Insolvency Act then and in any such case it shall be lawful for the
Landlord at any time thereafter to re-enter upon the Demised Premises or
any part thereof in the anme of the whole and thereupon this demise shall
absolutely determine but without prejudice to any right of action or
remedy of the Landlord in respect of any breach non-observance or
non-performance of any of the Tenant's covenants or any conditions herein
contained
7.2 Service of Notices
Any demand or notice to be served on the Tenant or any Surety hereunder
shall be validly served if sent by first class post addressed to the
Tenant or the Surety respectively (and if there shall be more than one of
them then to any of them) at its registered office or its last known
address or at the Demised Premises Any notice to be served on the Landlord
shall be validly served if sent by first class post addressed to the
Landlord at its registered office Any demand or notice sent by post shall
be conclusively treated as having been served Forty eight hours after
posting Provided that whilst the Tenant is National Co-operative Chemists
Limited notices shall only be effective if served at its registered office
7.3 Adjoining land
Nothing in this Lease shall prevent the Landlord and all persons
authorised by it without requiring any consent from or making any
compensation to the Tenant dealing as it or they may think fit with any
land or buildings adjacent or near to the Demised Premises erecting or
suffering to be erected on any part of such land any buildings or
structures whatsoever or making any alterations or additions or carrying
out any demolition or rebuilding whatsoever which it or they may think fit
and without prejudice to the generality of the foregoing notwithstanding
that such buildings alterations or additions shall affect or diminish the
light or air which may nor or at any time during the Term be enjoyed by
the Demised Premises provided that it shall use all reasonable endeavours
to procure that the
minimum disruption is caused to the Tenant's trade or business permitted
under this Lease
7.4 No liability in damages
The Landlord shall not in any circumstances incur any liability in respect
of damage to person or property or otherwise howsoever by reason of any
act neglect default or misfeance 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 Demised Premises or to any of the
goods persons or property of the Tenant or any other person in performance
of any services for the Tenant at the Tenant's request but this exclusion
does not apply to obligations specifically imposed on the Landlord by this
Lease
7.5 Failure to perform obligations
7.5.1 The Landlord shall 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 hereunder whether expressed 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 shall be liable to compensate the Tenant only for
loss or damage sustained by the Tenant after such reasonable time
has elapsed
7.5.2 Without prejudice to the generality of the foregoing the Landlord
shall not be liable to the Tenant nor shall the Tenant have any
claim against the Landlord in respect of any interruption to the
Services referred to in clause 6.1.3 of this Lease provided the
Landlord has used all reasonable endeavours to perform the same by
reason of necessary repair renewal or maintenance of any
installations or apparatus Comprised therein or by reason of any
other cause whatsoever outside the reasonable control of the
Landlord or other defect or breakdown frost or other inclement
conditions or unavoidable shortage of fuel materials water or labour
or any act omission or negligence of any servant of the Landlord in
or about the performance or purported performance of any duty
relating to the provisions of the Management Services or any of them
7.6 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 Demised Premises or
any part thereof any compensation under the Landlord and ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
7.7 Exclusion of rights not granted
Nothing herein contained shall operate expressly or impliedly to confer
upon or grant to the Tenant any easement right or privilege other than
those expressly hereby granted and set out in the First Schedule hereto
7.8 Tenant's acknowledge
Nothing contained in this Lease shall imply or warrant that the Demised
Premises may in accordance with the Planning Acts be used for the purpose
herein authorised and the Tenant hereby acknowledges and admits that the
Landlord has not given or made at any time any representation or warranty
that any such use is or will be or will remain a permitted use under the
Planning Acts
8 Covenants By and Provisions Relating to the Surety
The Surety hereby:
8.1 covenants with the Landlord in the terms set out in the Fourth Schedule
hereto
8.2 submits to the jurisdiction of the English Courts
8.3 acknowledges that this Lease is governed by English Law
8.4 confirms and nominates as its address for service ("the service address")
▇▇▇▇ ▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇▇
8.5 consents to the service of all notices and proceedings in connection
with this Lease at the service address
8.6 acknowledges that the jurisdiction and service of proceedings as
hereinbefore provided are non-exclusive and shall not limit any other
rights or remedies of the Landlord under the laws of any jurisdiction
where assets of the Tenant or the Surety may be found and
8.7 warrants that it has power to enter into this Lease and to covenant as
herein set out and that it will at its own cost produce to the Landlord a
certificate duly given by an Attorney at Law qualified to practice in the
State in which the Surety is incorporated that the manner in which this
Lease has been executed by the Surety complies with all statutes and
regulations relating to or affecting the Surety
IN WITNESS whereof the parties hereto have executed and delivered this
Lease as a Deed on the date specified and the Particulars
THE FIRST SCHEDULE above referred to
(Rights and easements granted)
1. The right for the Tenant its servants and employees and visitors and those
authorised by it in common with the Landlord any superior landlords those
authorised by either or any of them and all others having the same right:
2. To the free and uninterrupted passage of services and facilities
through the Conduits under or over the Estate and now or at any time
during the Term serving the Demised Premises
3. To pass with or without vehicles over the Access Roadway and circulation
areas for the purpose of access to and egress from the Demised Premises
and the Service Yard (and the right to park temporarily on the Service
Yard and circulation area in order to use the loading doors at the front
of the Demised Premises)
4. To use such of the Common Parts for all proper purposes in connection
with the use and enjoyment of the Demised Premises including (for
example) to pass and to ▇▇▇▇▇▇ to and from the Demised Premises
5. The right to install and maintain security equipment on the Demised
Premises with the consent of the Landlord such consent not to be
unreasonably withheld or delayed
6. The right to erect and maintain on the exterior of the Demised Premises
the Tenant's normal trade signage from time to time and such other signage
as may be agreed by the Landlord such agreement not to be unreasonably
withheld or delayed
THE SECOND SCHEDULE above referred to
(Rights and easements excepted)
The following rights and easements are excepted and reserved out of the Demised
Premises to the Landlord any superior landlords 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:
1. The free and uninterrupted passage of services and facilities through the
Conduits which are now or may at any time during the Term be in the
Demised Premises with the right to repair maintain and renew such Conduits
and the right at any time but on Requisite Notice to the Demised Premises
2. The right to build rebuild or execute any other works upon any adjacent or
nearby premises in such manner as the Landlord may think fit
notwithstanding any interference with or damage caused thereby to the
Demised Premises or to the access or enjoyment of light and air to or in
respect of the Demised Premises Provided that the Landlord uses reasonable
endeavours to procure that the minimum disruption or interference shall be
caused to the business or trade of the Tenant
3. The support and protection from the Demised Premises enjoyed by
buildings now or hereafter to be erected
4. The right at any time on Requisite Notice to the Demised Premises in order
to a) inspect or view the condition of the Demised Premises b) carry out
work upon any Conduits or adjacent premises and c) to 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
5. The right with the Landlord's Surveyor or any other surveyor acting for
the Landlord at any time on requisite notice to enter to inspect and
measure the Demised Premises for all purposes connected with any pending
or intended step under Part II of the 1954 Act
THE THIRD SCHEDULE above referred to
1. In this Schedule the following expressions shall have the following
meanings:
1.1 The Rent Review Dates are specified in the Particulars
1.2 The "relevant review date" shall mean the Rent Review Date at which the
rent is to be reviewed
1.2 "Open market rent" shall mean the best yearly rent for which the Demised
Premises could reasonably be expected to be let with vacant possession on
the relevant review date in the open market by a willing lessor to a
willing lessee without taking a fine or premium for the Term from the
relevant review date with provisions similar to those contained herein for
rent review at the rent review intervals and otherwise upon the terms and
conditions (save as to the amount of rent) as are herein contained on the
assumption (if not a fact) that the Demised Premises and the Estate are in
good and substantial repair and free from defects (whether or not
inherent) that the Demised Premises are ready and lawfully capable of use
for immediate beneficial occupation without the need for any works by the
Tenant that any necessary licences or permissions for such use have been
obtained and will continue throughout the Term and that all the Tenant's
and the Landlord's covenants have been complied with but there being
disregarded
1.3.1 Any effect on rent of the fact that the Tenant or an undertenant may
have been in occupation of the Demised Premises
1.3.2 Any goodwill attached to the Demised Premises by reason of any trade
or Business carried on therein by the Tenant or any undertenant
1.3.3 Any effect of any improvement made by the Tenant for the time being
after the date hereof otherwise than pursuance of an obligation to
the Landlord
1.3.4 Any effect on rent of any free period or periods generally available
in the Market or of any other inducements given or allowed to the
Tenant generally
2. From and after each Rent Review Date the rent hereinbefore first reserved:
(hereinafter called "the new rent") shall be whichever is the higher of:
2.1 The yearly rent operative immediately before the relevant review date and
2.2 The open market rent of the Demised Premises
3. If the Landlord and Tenant shall be able to agree the new rent or when the
new rent shall have been determined in accordance with the provisions
hereof as the case may be a memorandum of the new rent in the form set out
in the Fifth Schedule shall be prepared in duplicate by the Landlord's
solicitors and Signed by the parties hereto and annexed to this Lease and
the Counterpart Hereof
4. If three months before the relevant review date the Landlord and the
Tenant shall not have agreed on the new rent payable from the relevant
date the Landlord or Tenant may at any time thereafter but before the rent
shall be Agreed between the Landlord and the Tenant require an independent
Surveyor (hereinafter called "the Surveyor") to determine the open market
rent
5. The Surveyor may be agreed upon by the Landlord and the Tenant and in
default of such agreement shall be appointed on the application of either
party by the President for the time being of the Royal Institution of
Chartered Surveyors or such professional body of Surveyors as the Landlord
shall designate or the person designated by such Institution or body for
such purpose and any reference hereafter to the President shall be deemed
to include a reference to such officer
6. Notice in writing of his appointment shall be given by the Surveyor to the
Landlord and the Tenant and he shall invite each to submit within a
specified period (which shall not exceed four weeks) a valuation
accompanied if desired by a statement of reasons
7. The Surveyor (who shall be a Chartered Surveyor experienced in the letting
and/or valuation of premises of a similar nature to and situate in the
same region as the Demised Premises and used for purposes similar to those
authorised hereunder at the date of his appointment) shall at the option
of the Landlord exercised by notice in writing at or prior to the
appointment act either as an arbitrator pursuant to the provisions of the
Arbitration Acts 1950 and 1979 or as an expert valuer whose decision shall
be final and binding on all persons who are or have been parties hereto
(and in default of notice shall act as an arbitrator)
8. The Surveyor shall give notice in writing of his decision to the Landlord
and the Tenant within two months of his appointment or within such
extended period as may be reasonable
9. If the Surveyor shall fail to determine the open market rent and give
notice thereof within the time and in the manner provided or if he shall
relinquish his appointment or die or if it shall become apparent that for
any reason he will be unable to complete his duties the Landlord may apply
to the President for a substitute to be appointed in his place which
procedure may be repeated as many times as necessary
10. If by the relevant review date the new rent shall not have been agreed or
determined (whether or not negotiations shall have commenced) the Tenant
appointed by this Lease for payment of rent until the new rent shall have
been
agreed or determined and thereupon the Tenant shall pay to the Landlord as
arrears of rent an amount equal to the difference between the new rent and
the rent actually paid for the period since the relevant review date
together with Interest thereon from the relevant review date
11. The fees of the Surveyor (including any costs of appointment) shall be
shared as the Surveyor shall determine and in default shall be shared
equally
12. As respects all periods of time referred to in this Schedule time shall be
deemed not to be of the essence
13. If on any Rent Review Date there shall be in force any Act which shall
restrict interfere with or affect the Landlord's right to revise the rent
hereby reserved in accordance with the terms hereof or to collect the full
amount of any increased rent then the Landlord shall be entitled once
following each removal or modification of such Act to serve notice
requiring a review of the said rent (hereinafter called an "interim
notice") upon the Tenant and from and after the date of service of such
interim notice until the next Rent Review Date the new rent shall be
determined in accordance with Clauses 2 12 inclusive of this Schedule with
the substitution of the said date of service for the relevant Review date
THE FOURTH SCHEDULE above referred to
(Covenants by the Surety)
1. THAT the Tenant will throughout the contractual term of this lease as
well as before any disclaimer of their Lease pay the rents hereby
reserved as from time to time reviewed on the days and in the manner
aforesaid and will observe and perform all the covenants on the part of
the Tenant and the conditions contained in this Lease and that in case of
default or delay on the part of the Tenant the Surety will pay and make
good to the Landlord on demand anything whatsoever which ought to be paid
observed or performed as aforesaid including all losses damages costs and
expenses thereby arising or incurred by the Landlord provided that as
between the Surety and the Landlord the liability of the Surety shall be
as a principal debtor or covenator and provided further that no neglect
or forbearance by the Landlord inendeavouring to obtain payment of the
said rents or enforcing the observance and performance of the said
covenants and conditions nor any time which may be given to the Tenant by
the Landlord shall release exonerate or in any way affect the liability
of the Surety hereunder and provided further that the Surety's covenants
herein contained shall remain valid and binding on the Surety
notwithstanding any variation in the terms of the said covenants and
conditions agreed between the Landlord and the Tenant for the time being
except where a variation increases an obligation of the Tenant or imposes
a new obligation on the Tenant the Surety will not be liable in respect
of that variation but will be liable on the terms of this Lease without
that variation any disposition of the Landlord's reversion or any part
thereof any disposition of this Lease by the Tenant the release of any
one or more persons for the time being constituting the Surety or any
other act omission matter or thing whatever whereby (but for this
provision) the Surety would be exonerated either wholly or in part from
the said covenants other than a release under seal given by the Landlord
2. THAT if the Tenant shall cease to exist (whether by being wound up or
struck off the register of companies or otherwise howsoever) or if any
liquidator or trustee In bankruptcy of the Tenant shall disclaim this
Lease or if this Lease shall be or become forfeited the Surety or such of
the persons for the time being comprising the Surety as the Landlord
shall choose will forthwith upon being required to do so by the Landlord
by written notice given at any time within two months of the date upon
which the Landlord has actual notice that the Tenant has ceased to exist
or that this Lease has been disclaimed or of such forfeiture as the case
may be take up a new lease of the Demised Premises (subject to and with
the benefit of this Lease if and insofar as the same is subsisting) and
deliver to the Landlord a duly executed counterpart thereof for a new
term commencing on the day after the Tenant ceased to exist or the
effective date of disclaimer or forfeiture as the case may be and
expiring on the day on which the Term was due to expire and otherwise on
the same terms (mutates mutandis) as these presents and shall pay rent as
from the commencement of the new term and all costs in connection with
the giving notice and the granting of the new lease
3. THAT so long as any moneys remain or could be or remain owing by the
Surety under this Clause the Surety shall not:
a) claim or seek to enforce repayment or subrogation or otherwise of
any sums for the time being due to the Surety by the Tenant
b) in the event of liquidation of the Tenant prove in competition with
the Landlord in respect of any moneys owing to the Surety by the
Tenant but will give to the Landlord the benefit of any such proof
and of all monies to be received in respect thereof until all monies
owing by the Tenant to the Landlord shall have been paid in full
4. THAT if the Landlord shall not require the Surety to take a Lease of
the Demised Premises pursuant to Paragraph 2 above the Surety shall
nevertheless upon demand pay to the Landlord a sum equal to the rent that
would have been payable under this Lease but for the surrender or
disclaimer or forfeiture in respect of the period from the date of such
surrender or disclaimer or forfeiture (as the case may be) until the
expiration of three months from it or until the Demised Premises shall
have been re-let by the Landlord whichever shall first occur
5. AS a separate and independent stipulation that without prejudice to the
rights of the Landlord against the Tenant as principal any liability
mentioned above which may not be recoverable on the footing of a
guarantee whether by reason of any legal limitation on or disability or
incapacity of the Tenant or any other fact or circumstance and whether
known to the Landlord or not shall nevertheless be recoverable from the
Surety as though the same had been incurred by the Surety and the Surety
was the sole or principal debtor in respect thereof and shall be paid by
the Surety on demand together with Interest (as well before as after any
judgement)
6. THAT provisions of this Schedule shall be in addition to and not in
substitution for any other rights which the Landlord may have and may be
enforced against the Surety without first having recourse to any such
rights and without taking any steps to proceedings against the Tenant
7. THAT no assurance security or payment which may be avoided under any
provision or enactment relating to liquidation or insolvency for the time
being in force (including but not limited to Sections 615 and 617 of the
Companies ▇▇▇ ▇▇▇▇ and Sections 238 239 339 and 340 of the Insolvency Act)
nor any release settlement or discharge of the Surety which may have been
given or made on the faith of any such assurance security or payment shall
prejudice or affect the right of the Landlord to recover from the Surety
to the full extent of this Clause as if such release settlement or
discharge had not occurred
THE FIFTH SCHEDULE above referred to
(Memoranda of Rent Reviews)
Pursuant to the provisions of the Third Schedule of the Lease dated 2001 and
made between [the Landlord] (1) and [the Tenant] (2) it has been
[agreed/determined] that the rent payable from the [first/second/third/fourth]
Rent Review Date specified in the particulars is Pounds per annum
Signed.........................................
Duly authorised signatory of the Landlord/Tenant/Surety
(note: delete/amend as necessary)
THE SIXTH SCHEDULE
(Authorised Guarantee Agreement)
LICENCE TO ASSIGN
AND
AUTHORISED GUARANTEE
AGREEMENT
under the Lease relating to
THIS DEED is made the day of BETWEEN:
of
("the Landlord")
2)
of
("the Tenant")
3)
of
("the Assignee") and
INTRODUCTION:
A) This deed is supplemental to a Lease ("the Lease") dated the
Day of 2001 made between [ ]
(1) and (2) by which the premises known as
("the premises") were demised for a term of 25 years from the day of 25
years from the day of 2001 ("the Term") subject to the payment of the rent
reserved by and the performance and observance of the covenants on the
Tenant's part and the other provisions contained in the Lease
B) The reversion immediately expectant on the determination of the Term
[remains or is now] vested in the Landlord and the unexpired residue of
the Term [remains or is now] vested in the Tenant
C) The Lease contains provisions prohibiting the Tenant from assigning the
Premises without the [licence or consent] on the terms set out below to
Enable the Tenant to assign [its] estate and interest in the Premises to
the Assignee
THIS DEED WITNESSES:
1. IN this deed unless the context otherwise dictates:
1.1 "the Landlord" includes the person in whom the reversion immediately
expectant on the determination of the Term is for the time being
vested
1.2 "the Lease" includes all or any deeds and documents supplemental to
the Lease whether or not expressed to be so
1.3 "the Term" includes any continuation or extension of the Term and
any holding over whether by statute at common law or otherwise
2. THE Landlord (at the request of the other parties) grants to the Tenant
licence ("the Licence") to assign the whole of the Tenant's estate and
interest in the Premises to the Assignee within Thirty days after the date
of this deed
3. THE Assignee covenants with the Landlord:
3.1 That at all times following the permitted Assignment ("the
Assignment") the Assignee will for the residue of the said term or
until such estate and interest is further assigned (other than by an
excluded assignment within the meaning of Section 11 of the Landlord
and Tenant (Covenants) Act 1995) whichever is the shorter period pay
the rent[s] reserved by and observe and perform the covenants on the
Tenant's part and the other provisions contained in the Lease
3.2 That immediately after completion of the Assignment the Assignee
will give the Landlord written notice of the date on which the
Assignment was completed and of the name and address of the person
to whom future rent demands should be sent and will supply to the
Landlord for registration a copy (duly certified to be true and
accurate by a solicitor) of the deed effecting the Assignment and
pay such registration fee as is specified in clause of the Lease
4. THE Tenant covenants with the Landlord as a primary obligation (and
without the need for any express assignment with all its successors in
title) that:
4.1 At all times after the completion of the Assignment the Assignee
will For the residue of the said term or until such estate and
interest is further assigned (other than by an excluded assignment
within the meaning of Section 11 of the Landlord and Tenant
(Covenants) ▇▇▇ ▇▇▇▇ whichever is the shorter period) punctually pay
the rent[s] reserved by and observe and perform the covenants on the
Tenant's part and the other provisions contained in the Lease and if
during the said period the Assignee makes any default therein the
Tenant will pay the rent and observe or perform those covenants or
provisions in respect of which the Assignee is in default and make
good to the Landlord on demand and indemnify the Landlord against
all losses damages costs and expenses arising or incurred by the
Landlord as a result of the non-payment non-performance or
nonobservance notwithstanding:
4.1.1 any time or indulgence granted by the Landlord to the Assignee
or any neglect or forbearance of the Landlord in enforcing the
payment of the rent or the observance of performance of the
Tenant's covenants or other provisions contained in the Lease
or any refusal by the Landlord to accept rent tendered by or
on behalf of the Assignee at a time when the Landlord was
entitled (or would after the service of a notice under Section
146 of the Law of Property ▇▇▇ ▇▇▇▇ have been entitled) to
re-enter the Premises
4.1.2 that the Assignee may have surrendered part of the Premises in
which event the liability of the Tenant hereunder will
continue in respect of the part of the Premises not so
surrendered after making any necessary appointments under
Section 140 of the Law of Property ▇▇▇ ▇▇▇▇
4.2 If at any time during the Term of Assignee (being an individual)
Becomes bankrupt or (being a company) enters into liquidation and
the trustee in bankruptcy or liquidator disclaims the Lease the
Tenant will if the Landlord by notice within two calendar months
after the disclaimer so requires take from the Landlord a lease of
the Premises for the residue of the Term which would have remained
had there been no disclaimer at the rent then being paid under the
Lease and subject to the same covenants and terms as in the Lease
the new lease to take effect from the date of the disclaimer and in
that case the Tenant will pay the reasonable costs of the new lease
and execute and deliver to the Landlord a counterpart of it
5. THE tenant FURTHER covenants with the Landlord:
5.1 To pay the Landlord on demand and to indemnify the Landlord against
all reasonable and proper costs charges fees disbursements and
expenses (including those of professional advisers and agents and
including in each case any Value Added Tax) incurred by the Landlord
in connection with
the Licence or the Assignment including (without limitation) those
arising from the consideration of the application for the Licence
and the preparation negotiation and completion of this deed and
arising from obtaining the consent or approval of or information
from any other person except where the Landlord unreasonably refuses
consent
5.2 Not to allow the Assignee to enter into possession or occupation of
the whole or any part of the Premises until completion of the
Assignment
6. IN the event of the Assignment not being completed within Thirty days
after after the date of this deed or not being completed otherwise in
accordance with this deed then the Licence and all other provisions of
this deed (save for clause 5.1) will immediately determine and cease to
have effect but without prejudice to any right of action vested in the
Landlord by virtue of the Tenant's breach of covenant
7. ALL sums payable by the Tenant under clause 5.1 of this deed are
recoverable as rent in arrear
8. NOTHING contained in this deed waives or may be deemed to waive any Breach
of the obligations of the Tenant under the Lease which may have occurred
prior to the date of this deed or authorise or be deemed to authorise any
further assignments or any act omission or thing other than the Assignment
And the covenants on the Tenant's part and all other provisions contained
in the Lease continue in full force and effect to the extent permitted by
law
THE COMMON SEAL of ▇ ▇ ▇▇▇▇ Limited
was hereunto affixed) in the
presence of
Director
Secretary
THE COMMON SEAL of BioProgress Limited
was hereunto affixed) in the
presence of
Director
Secretary
SIGNED AS A DEED on behalf of BioProgress Inc,
a company incorporated in the State of USA
by , being the person who,
in accordance with the laws of that territory,
Authorised Signatory
is acting under the authority of the Company