1
EXHIBIT 10.14
DOCUMENT NAME: GP317G7.20
DRAFT NO: 7
AUTHOR'S INITIALS: GP
SECRETARY'S INITIALS: ▇▇▇▇▇ - 21 JULY 1998
DOCUMENT COMMENT: OCCUPATIONAL LEASE
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DATED 1998
(1) Landlord:
UNIVERSITIES SUPERANNUATION
SCHEME LIMITED
(2) Tenant:
SEAGATE SOFTWARE LIMITED
(3) Guarantor:
SEAGATE TECHNOLOGY INC.
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OCCUPATIONAL LEASE
- of -
Aquis House
▇▇▇▇▇▇▇▇ Street
Reading
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▇▇▇▇▇▇▇▇ CHANCE
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Tel: ▇▇▇▇-▇▇▇ ▇▇▇▇
Fax: ▇▇▇▇-▇▇▇ ▇▇▇▇
Ref: GP/U0167/10080/ICSM
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DATED 1998
(1) Landlord:
UNIVERSITIES SUPERANNUATION
SCHEME LIMITED
(2) Tenant:
SEAGATE SOFTWARE LIMITED
(3) Guarantor:
SEAGATE TECHNOLOGY INC.
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Counterpart/
OCCUPATIONAL LEASE
- of -
Aquis House
▇▇▇▇▇▇▇▇ Street
Reading
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▇▇▇▇▇▇▇▇ CHANCE
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Tel: ▇▇▇▇-▇▇▇ ▇▇▇▇
Fax: ▇▇▇▇-▇▇▇ ▇▇▇▇
Ref: GP/U0167/10080/ICSM
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INDEX
CLAUSE PAGE
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SECTION 1................................................................................. 1
2. INTERPRETATION.................................................................... 5
SECTION 2................................................................................. 6
3.1 DEMISE AND TERM............................................................ 6
3.2 EXCEPTIONS AND RESERVATIONS................................................ 7
3.3 THIRD PARTY RIGHTS......................................................... 7
3.4 ENCROACHMENTS AND EASEMENTS................................................ 7
3.5 LANDLORD'S COVENANTS....................................................... 7
3.6 RIGHTS OF ENTRY BY LANDLORD................................................ 7
3.7 TERMS OF ENTRY BY LANDLORD................................................. 8
SECTION 3................................................................................. 8
4.1 TENANT'S OBLIGATION TO PAY................................................. 8
4.2 DATES OF PAYMENT OF PRINCIPAL RENT......................................... 9
4.3 METHOD OF PAYMENT OF PRINCIPAL RENT........................................ 9
4.4 DATES OF PAYMENT OF INSURANCE RENT AND ADDITIONAL RENT..................... 9
4.5 NO RIGHT OF SET-OFF........................................................ 9
5. RENT REVIEW...................................................................... 10
5.1 DEFINITIONS............................................................... 10
5.1.1 "OPEN MARKET RENT\........................................................ 10
5.1.2 "ASSUMPTIONS\............................................................. 11
5.1.3 "DISREGARDED MATTERS\..................................................... 11
5.1.4 "REVIEW SURVEYOR\......................................................... 11
5.2 RENT REVIEWS.............................................................. 12
5.3 AGREEMENT OR DETERMINATION OF THE REVIEWED RENT........................... 12
5.4 APPOINTMENT OF REVIEW SURVEYOR............................................ 12
5.5 FUNCTIONS OF REVIEW SURVEYOR.............................................. 12
5.6 FEES OF REVIEW SURVEYOR................................................... 13
5.7 APPOINTMENT OF NEW REVIEW SURVEYOR........................................ 13
5.8 INTERIM PAYMENTS PENDING DETERMINATION.................................... 13
5.9 RENT RESTRICTIONS......................................................... 14
5.10 MEMORANDA OF REVIEWED RENT................................................ 15
5.11 TIME NOT OF THE ESSENCE................................................... 15
6. INTEREST......................................................................... 15
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CLAUSE PAGE
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6.1 INTEREST ON LATE PAYMENTS................................................. 15
6.2 INTEREST ON REFUSED PAYMENTS.............................................. 16
7. OUTGOINGS........................................................................ 16
7.1 TENANT'S OBLIGATION TO PAY................................................ 16
7.2 INDEMNITY AGAINST VOID RATING RELIEF...................................... 16
7.3 COSTS OF UTILITIES ETC.................................................... 16
8. VALUE ADDED TAX.................................................................. 17
8.1 SUMS EXCLUSIVE OF VAT..................................................... 17
8.2 TENANT TO PAY VAT......................................................... 17
8.3 VAT INCURRED BY LANDLORD.................................................. 17
9. TAXATION......................................................................... 17
10. LANDLORD'S COSTS................................................................. 18
SECTION 4................................................................................ 18
11.1 REPAIRS................................................................... 18
11.2 DAMAGE BY THE INSURED RISKS............................................... 19
11.3 INTERNAL DECORATIONS...................................................... 19
11.4 EXTERNAL DECORATIONS...................................................... 19
11.5 PLANT AND MACHINERY....................................................... 20
11.6 CLEANING.................................................................. 20
11.7 CARPETING................................................................. 20
12. YIELD UP......................................................................... 20
12.1 REINSTATEMENT OF PREMISES................................................. 20
12.2 YIELDING UP IN GOOD REPAIR................................................ 21
13. COMPLIANCE WITH NOTICES.......................................................... 21
13.1 TENANT TO REMEDY BREACHES OF COVENANT..................................... 21
13.2 FAILURE OF TENANT TO REPAIR............................................... 21
14. ALTERATIONS...................................................................... 21
14.1 NO STRUCTURAL ALTERATIONS................................................. 21
14.2 NON-STRUCTURAL ALTERATIONS................................................ 22
14.3 DEMOUNTABLE PARTITIONING.................................................. 22
14.4 COVENANTS BY TENANT....................................................... 22
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CLAUSE PAGE
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15. SIGNS AND ADVERTISEMENTS......................................................... 22
SECTION 5................................................................................ 23
16.1 PERMITTED USE............................................................. 23
16.2 TENANT NOT TO LEAVE PREMISES UNOCCUPIED................................... 23
17. USE RESTRICTIONS................................................................. 23
18. EXCLUSION OF WARRANTY AS TO USER................................................. 23
18.1 NO WARRANTY BY LANDLORD................................................... 23
18.2 TENANT'S ACKNOWLEDGEMENT.................................................. 23
SECTION 6................................................................................ 24
19.1 ALIENATION GENERALLY...................................................... 24
19.2 SHARING WITH A GROUP COMPANY.............................................. 24
20. ASSIGNMENT....................................................................... 24
20.1 NO ASSIGNMENT OF PART..................................................... 24
20.2 CIRCUMSTANCES IN WHICH CONSENT TO ASSIGNMENT MAY BE WITHHELD.............. 24
20.3 CONDITIONS FOR LANDLORD'S CONSENT......................................... 25
20.4 ASSIGNMENT OF THE WHOLE................................................... 26
20.5 S.144 LPA 1925............................................................ 26
21. ARRANGEMENTS FOR THE SUBSTITUTION OF THE GUARANTOR............................... 26
21.1 SUBSTITUTION AND RELEASE OF SEAGATE TECHNOLOGY INC........................ 26
21.2 PROVISIONS OF ACCOUNTS AND OTHER DOCUMENTARY EVIDENCE..................... 28
21.3 LANDLORD'S CONSENT TO ASSIGNMENT.......................................... 28
21.4 CONDITIONS FOR LANDLORD'S CONSENT......................................... 28
21.5 APPLICATION FOR THE RELEASE OF SEAGATE SOFTWARE INC....................... 28
21.6 PROVISION OF ACCOUNTS AND OTHER DOCUMENTARY EVIDENCE...................... 29
21.7 LANDLORD'S CONSENT TO ASSIGNMENT.......................................... 29
21.8 CONDITIONS FOR LANDLORD'S CONSENT......................................... 29
22. UNDERLETTING..................................................................... 30
22.1 SUBLETTING UNIT........................................................... 30
22.2 UNDERLETTING OF PART...................................................... 30
22.3 UNDERLETTING OF THE WHOLE................................................. 31
22.4 UNDERLETTING RENT......................................................... 31
22.5 DIRECT COVENANTS FROM UNDERTENANT......................................... 31
22.6 CONTENTS OF UNDERLEASE.................................................... 32
22.7 TENANT TO OBTAIN LANDLORD'S CONSENT....................................... 32
22.8 TENANT TO ENFORCE OBLIGATIONS............................................. 32
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CLAUSE PAGE
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22.9 REVIEW OF UNDERLEASE RENT................................................. 32
22.10 NO VARIATION OF TERMS..................................................... 33
22.11 NO REDUCTION IN RENT...................................................... 33
23. REGISTRATION OF DISPOSITIONS..................................................... 33
SECTION 7................................................................................ 33
24.1 TENANT TO COMPLY WITH STATUTES............................................ 33
24.2 TENANT TO EXECUTE NECESSARY WORKS......................................... 34
24.3 TENANT TO REFRAIN FROM CERTAIN ACTS....................................... 34
25. PLANNING ACTS.................................................................... 34
25.1 TENANT'S OBLIGATION TO COMPLY............................................. 34
25.2 NO APPLICATION FOR PLANNING PERMISSION WITHOUT CONSENT.................... 34
25.3 TENANT TO OBTAIN ALL PERMISSIONS.......................................... 34
25.4 TENANT TO PAY PLANNING CHARGES............................................ 35
25.5 NO IMPLEMENTATION OF PERMISSION WITHOUT APPROVAL.......................... 35
25.6 TENANT TO CARRY OUT WORKS BEFORE END OF TERM.............................. 35
25.7 PLANS ETC. TO BE PRODUCED................................................. 35
25.8 PLANNING CONDITIONS....................................................... 35
25.9 PLANNING REFUSAL.......................................................... 36
26. STATUTORY NOTICES................................................................ 36
26.1 NOTICES GENERALLY......................................................... 36
26.2 PARTY WALL ETC. ACT 1996.................................................. 36
27. FIRE PRECAUTIONS AND EQUIPMENT................................................... 37
27.1 COMPLIANCE WITH REQUIREMENTS.............................................. 37
27.2 FIRE FIGHTING APPLIANCES TO BE SUPPLIED................................... 37
27.3 ACCESS TO BE KEPT CLEAR................................................... 37
28. DEFECTIVE PREMISES............................................................... 37
SECTION 8................................................................................ 37
29.1 LANDLORD TO INSURE........................................................ 37
29.2 WAIVER OF SUBROGATION..................................................... 38
29.3 FULL REINSTATEMENT COST................................................... 38
29.4 LANDLORD'S FIXTURES....................................................... 38
29.5 LANDLORD TO PRODUCE EVIDENCE OF INSURANCE................................. 38
29.6 INSURANCE VALUATIONS...................................................... 39
29.7 DAMAGE TO THE PREMISES.................................................... 39
29.8 WHERE REINSTATEMENT IS DELAYED OR PREVENTED............................... 40
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CLAUSE PAGE
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29.9 PAYMENT OF INSURANCE MONEY REFUSED........................................ 40
29.10 SUSPENSION OF RENT PAYMENTS............................................... 41
29.11 DOUBLE INSURANCE.......................................................... 41
29.12 INSURANCE BECOMING VOID................................................... 41
29.13 REQUIREMENTS OF INSURERS.................................................. 42
29.14 NOTICE BY TENANT.......................................................... 42
SECTION 9................................................................................ 42
30.1 RE-ENTRY.................................................................. 42
30.2 EVENTS OF DEFAULT......................................................... 42
SECTION 10............................................................................... 44
32. EXCLUSION OF IMPLIED COVENANTS BY LANDLORD....................................... 44
33. RELETTING NOTICES................................................................ 44
34. DISCLOSURE OF INFORMATION........................................................ 44
35. INDEMNITY........................................................................ 44
36. REPRESENTATIONS.................................................................. 45
37. EFFECT OF WAIVER................................................................. 45
38. NOTICES.......................................................................... 45
38.1 NOTICES TO TENANT OR GUARANTOR............................................ 45
38.2 NOTICES TO LANDLORD....................................................... 45
39. EXCLUSION OF STATUTORY COMPENSATION.............................................. 46
40. GUARANTOR'S COVENANTS............................................................ 46
41. NEW TENANCY...................................................................... 46
42. INVALIDITY OF CERTAIN PROVISIONS................................................. 46
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CLAUSE PAGE
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43. GOVERNING LAW AND JURISDICTION................................................... 46
43.1 GOVERNING LAW............................................................. 46
43.2 JURISDICTION.............................................................. 46
43.3 WAIVER OF OBJECTION TO LEX FORI........................................... 46
SCHEDULE 1............................................................................... 48
SCHEDULE 2............................................................................... 49
SCHEDULE 3............................................................................... 51
SCHEDULE 4............................................................................... 55
SCHEDULE 5............................................................................... 59
SCHEDULE 6............................................................................... 62
8. INVALIDITY OF CERTAIN PROVISIONS................................................. 67
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THIS LEASE is made on the day of 1998
BETWEEN:-
(1) UNIVERSITIES SUPERANNUATION SCHEME LIMITED (Company registration number
1167127) whose registered office is at Royal Liver Building Liverpool L3
1PY (the "Landlord");
(2) SEAGATE SOFTWARE LIMITED (Company registration number 2575013) whose
registered office is at ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (the
"Tenant"); and
(3) SEAGATE TECHNOLOGY INC. of ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ (Company registration number 2102401) (the "Guarantor").
NOW THIS DEED WITNESSES as follows:-
SECTION 1
DEFINITIONS AND INTERPRETATION
1. DEFINITIONS
In this Lease, unless the context requires otherwise, the following
expressions shall have the following meanings:-
1.1 "ADDITIONAL RENT" means all sums referred to in clause 6, and all sums
which are recoverable as rent in arrear or stated in this Lease to be
due to the Landlord;
1.2 "BASE RATE" means the base rate for the time being of Barclays Bank PLC
or, if Barclays Bank PLC ceases to exist or fails to publish a base
rate such other comparable rate of interest as the Landlord shall
reasonably specify;
1.3 "CONDUITS" means all drains, pipes, gullies, gutters, sewers, ducts,
mains, channels, subways, wires, cables, conduits, flues and any other
conducting media of whatsoever nature;
1.4 "DECORATION YEAR" means the fifth year after the Term Commencement Date
and every subsequent fifth year;
1.5 "DEVELOPMENT" means development as defined in section 55 of the Town
and Country Planning ▇▇▇ ▇▇▇▇;
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1.6 "GROUP COMPANY" means any company which is, for the time being (a) a
subsidiary of the relevant party or (b) the holding company of that
party or (c) another subsidiary of the holding company of that party,
in each case within the meaning of section 736 of the Companies ▇▇▇
▇▇▇▇, as amended by the Companies ▇▇▇ ▇▇▇▇;
1.7 "GUARANTOR" means the party named as "Guarantor" in this Lease and
includes the person from time to time guaranteeing the obligations of
the Tenant under this Lease and, in the case of an individual, includes
his personal representatives;
1.8 "INITIAL RENT" means the sum of one million and fifty thousand pounds
sterling (L1,050,000) per annum;
1.9 "INSURANCE RENT" means:-
(a) the sums which the Landlord pays from time to time for
insuring the Premises against the Insured Risks pursuant to
clause 29.1.1 and the other items referred to in clause
29.1.3; and
(b) all sums which the Landlord pays from time to time for
insuring against the loss of the Principal Rent pursuant to
clause 29.1.2;
1.10 "INSURED RISKS" means to the extent that any of the same are insurable
in the London insurance market at reasonable cost fire, ▇▇▇▇▇, ▇▇▇▇▇▇▇,
flood, earthquake, lightning, explosion, impact, aircraft (other than
hostile aircraft) and other aerial devices and articles dropped from
them, riot, civil commotion and malicious damage, bursting or
overflowing of water tanks, apparatus or pipes, and such other risks as
the Landlord may, in its reasonable discretion from time to time,
determine, subject to such exclusions, excesses, limitations, terms and
conditions as may be properly contained in any policy taken out by the
Landlord;
1.11 "LANDLORD" means the person for the time being entitled to the
reversion immediately expectant on the determination of the Term;
1.12 "THIS LEASE" means this Lease and any document which is supplemental to
it, whether or not it is expressly stated to be so;
1.13 "NET INTERNAL AREA" means the total floor area expressed in square feet
measured in accordance with the Code of Measuring Practice published on
behalf of the Royal Institution
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of Chartered Surveyors and the Incorporated Society of Valuers and
Auctioneers (Fourth Edition November 1993);
1.14 "NET TANGIBLE ASSETS" means the aggregate of the amounts paid up or
credited as paid up on the issued share capital of the proposed
assignee or its guarantor (other than any redeemable shares) including:
(a) any amount credited to the share premium account;
(b) any capital redemption reserve fund; and
(c) any balance standing to the credit of the profit and loss
account of the proposed assignee or its guarantor
but deducting:
(i) any debit balance on the profit and loss account of the
proposed assignee or its guarantor;
(ii) (to the extent included) any amount shown in respect of
goodwill or other intangible assets of the proposed assignee
or its guarantor
(iii) (to the extent included) any amount set aside for taxation,
deferred taxation or bad debts; and
(iv) any dividend or distribution declared, recommended or made by
the proposed assignee or its guarantor to the extent that such
distribution is not provided for in the most recent financial
statements;
and so that no amount shall be included or excluded more than once;
1.15 "PERMITTED USE" means good class offices within Class B1 (Business) of
the Town and Country Planning (Use Classes) Order 1987 and purposes
ancillary to such use;
1.16 "PLAN" means the plan annexed to this Lease;
1.17 "PLANNING ACTS" means the Town and Country Planning ▇▇▇ ▇▇▇▇, the
Planning (Listed Buildings and Conservation Areas) ▇▇▇ ▇▇▇▇,
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the Planning (Hazardous Substances) ▇▇▇ ▇▇▇▇, the Planning
(Consequential Provisions) ▇▇▇ ▇▇▇▇, and the Planning and Compensation
▇▇▇ ▇▇▇▇ and any other town and country planning or related
legislation;
1.18 "PREMISES" means the land situated at Blagrave Road Reading together
with the building erected on it or on part of it and known as Aquis
House as the same are registered at HM Land Registry with Title
Absolute under Title Number BK321654 and shown edged red on the Plan
and each and every part of the land and building including:-
(a) any Conduits in, on, under or over and exclusively serving
them, except those of any utility company;
(b) all landlord's fixtures, fittings, plant, machinery, apparatus
and equipment at any time in or on them;
(c) any additions, alterations and improvements;
1.19 "PRESCRIBED RATE" means four per cent (4%) per annum above the Base
Rate;
1.20 "PRESENT TENANT" means (in Schedule 3) the Tenant at the time the
covenants on the part of the Guarantor are entered into and (in
Schedule 4) the Tenant at the time the covenants on the part of the
Present Tenant therein referred to are entered into;
1.21 "PRESIDENT" means the President for the time being of the Royal
Institution of Chartered Surveyors (or in the event that such
Institution ceases to exist such other independent professional body as
the Landlord may reasonably nominate) and includes the duly appointed
deputy of the President or any person authorised by the President or by
the Institution or nominated body to make appointments on his or its
behalf;
1.22 "PRE-TAX PROFITS" means annual profits before tax as evidenced by
independently audited accounts;
1.23 "PRINCIPAL RENT" means the rent payable under clause 4.1.1;
1.24 "RENT COMMENCEMENT DATE" means 1999;
1.25 "RENTS" means the sums payable by the Tenant under clause 4;
1.26 "REVIEW DATE" means 24 June 2003 and every fifth anniversary of that
date during the Term
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and the day before the expiry of the contractual term granted by this
Lease and "RELEVANT REVIEW DATE" shall be construed accordingly;
1.27 "SURVEYOR" means any person appointed by the Landlord to perform the
function of a surveyor or an accountant for any purpose of this Lease
and includes any employee of the Landlord or of a Group Company of the
Landlord appointed for that purpose and any person appointed by the
Landlord to collect the rents or to manage the Premises but does not
include the Review Surveyor as defined in clause 5;
1.28 "TENANT" means the party named as `Tenant' in this Lease and includes
the Tenant's successors in title and assigns and, in the case of an
individual, his personal representatives;
1.29 "TERM" means the term of years specified in clause 3.1 and in respect
of the obligations of the tenant for the time being under this Lease
includes the period of any holding over or any extension or
continuation, whether by statute or common law;
1.30 "TERM COMMENCEMENT DATE" means 24 June 1998;
1.31 "UTILITIES" means water, soil, steam, air, electricity, radio,
television, telegraphic, telephone, telecommunications and other
services and supplies of whatsoever nature;
1.32 "VALUE ADDED TAX" means value added tax as defined in the Value Added
Tax ▇▇▇ ▇▇▇▇ and any tax of a similar nature substituted for, or levied
in addition to, such value added tax;
1.33 "WORKING DAY" means any day, other than a Saturday or Sunday, on which
clearing banks in the United Kingdom are open to the public for the
transaction of business.
2. INTERPRETATION Unless there is something in the subject or context
inconsistent with the same:-
2.1 every covenant by a party comprising more than one person shall be
deemed to be made by such party jointly and severally;
2.2 words importing persons shall include firms, companies and corporations
and vice versa;
2.3 any covenant by the Tenant not to do any act or thing shall include an
obligation not to permit or suffer such act or thing to be done;
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2.4 any reference to the right of the Landlord to have access to, or to
enter, the Premises shall be construed as extending to any mortgagee of
the Landlord and to all persons authorised by them, including agents,
professional advisers, contractors, workmen and others;
2.5 any reference to a statute (whether specifically named or not) shall
include any amendment or re-enactment of it for the time being in
force, and all instruments, orders, notices, regulations, directions,
bye-laws, permissions and plans for the time being made, issued or
given under it, or deriving validity from it;
2.6 all agreements and obligations by any party contained in this Lease
(whether or not expressed to be covenants) shall be deemed to be, and
shall be construed as, covenants by such party;
2.7 the word "assignment" includes equitable assignment and the words
"assign" and "assignee" shall be construed accordingly
2.8 the words "including" and "include" shall be deemed to be followed by
the words "without limitation";
2.9 the titles or headings appearing in this Lease are for reference only
and shall not affect its construction;
2.10 any reference to a clause or schedule shall mean a clause or schedule
of this Lease.
SECTION 2
GRANT OF LEASE
3. GRANT, RIGHTS AND OTHER MATTERS
3.1 DEMISE AND TERM
In consideration of the rents, covenants and agreements reserved by,
and contained in, this Lease to be paid and performed by the Tenant,
the Landlord leases the Premises to the Tenant from and including the
Term Commencement Date for the term of fifteen (15) years paying the
Rents to the Landlord in accordance with clause 4.
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3.2 EXCEPTIONS AND RESERVATIONS
There are excepted and reserved out of this Lease the rights and
easements set out in SCHEDULE 1.
3.3 THIRD PARTY RIGHTS
This Lease is granted subject to any rights, easements, reservations,
privileges, covenants, restrictions, stipulations and other matters of
whatever nature affecting the Premises including any matters contained
or referred to in the deeds and documents referred to in the entries on
the Registers of Title Number BK321654 so far as any of them relate to
the Premises and are still subsisting and capable of taking effect.
3.4 ENCROACHMENTS AND EASEMENTS
The Tenant shall not stop up or obstruct any of the windows or lights
belonging to the Premises and shall not permit any new window, light,
opening, doorway, passage, Conduit or other encroachment or easement to
be made or acquired into, on or over the Premises or any part of them.
If any person shall attempt to make or acquire any encroachment or
easement whatsoever, the Tenant shall give written notice of that fact
to the Landlord immediately it shall come to the notice of the Tenant
and, at the request of the Landlord but at the cost of the Tenant,
adopt such means as may be reasonably required by the Landlord for
preventing any encroachment or the acquisition of any easement.
3.5 LANDLORD'S COVENANTS
Covenants on the part of the Landlord are covenants to do or not to do
that which is covenanted for so long only as the Landlord remains
entitled to the reversion immediately expectant on the determination of
the Term
3.6 RIGHTS OF ENTRY BY LANDLORD
The Tenant shall permit the Landlord with all necessary materials and
appliances to enter and remain on the Premises:-
3.6.1 to examine the condition of the Premises and to take details
of the landlord's fixtures in them;
3.6.2 to exercise any of the rights excepted and reserved by this
Lease;
3.6.3 for any other purpose connected with valuing the Premises or
disposing of or raising finance upon the Landlord's interest
in the Premises.
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3.7 TERMS OF ENTRY BY LANDLORD
In exercising any of the rights mentioned in clause 3.6, the Landlord
or the person exercising the right shall:-
3.7.1 give to the Tenant not less than three (3) Working Days' prior
notice in writing that the right is to be exercised and shall
only exercise it at reasonable times (except in an emergency,
when no notice need be given and when it can be exercised at
any time);
3.7.2 cause as little inconvenience as practicable to the Tenant or
any other permitted occupier of any part of the Premises; and
3.7.3 make good, as soon as practicable and to the reasonable
satisfaction of the Tenant, any damage caused to the Premises.
SECTION 3
FINANCIAL PROVISIONS
4. RENTS
4.1 TENANT'S OBLIGATION TO PAY
The Tenant covenants to pay to the Landlord at all times during the
Term:-
4.1.1 yearly, and proportionately for any fraction of a year, the
Initial Rent and from and including each Rent Review Date,
such yearly rent as shall become payable under clause 5;
4.1.2 the Insurance Rent;
4.1.3 the Additional Rent; and
4.1.4 any Value Added Tax which may be chargeable in respect of the
Principal Rent, the Insurance Rent and the Additional Rent.
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4.2 DATES OF PAYMENT OF PRINCIPAL RENT
The Principal Rent and any Value Added Tax chargeable on it shall be
paid in four (4) equal instalments in advance on each 25th March, 24th
June, 29th September and 25th December in every year, the first
payment, in respect of the period from and including the Rent
Commencement Date to the day before the quarter day following the Rent
Commencement Date, to be made on the Rent Commencement Date.
4.3 METHOD OF PAYMENT OF PRINCIPAL RENT
The Principal Rent and any Value Added Tax chargeable on it shall be
paid so that the Landlord shall receive full value in cleared funds on
the date when payment is due.
4.4 DATES OF PAYMENT OF INSURANCE RENT AND ADDITIONAL RENT
The Insurance Rent and the Additional Rent and any Value Added Tax
chargeable on either of them shall be paid on demand, the first payment
of the Insurance Rent having been made on the date of this Lease.
4.5 NO RIGHT OF SET-OFF
Subject to any contrary statutory right, the Tenant shall not exercise
any legal or equitable rights of set-off, deduction, abatement or
counterclaim which it may have to reduce its liability for Rents.
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5. RENT REVIEW
5.1 DEFINITIONS
In this clause the following expressions shall have the following
meanings:-
5.1.1 "OPEN MARKET RENT" means the full yearly rent which might
reasonably be expected to become payable in respect of the
Premises after the expiry of any rent free period,
concessionary rent and/or after the giving of any other
inducement (whether by means of a capital payment or
otherwise) given in each case only in connection with the
fitting out of the Premises by the incoming tenant of such
length or of such amount or nature as would be negotiated in
the open market between a willing landlord and a willing
tenant (to the intent that no discount, reduction or allowance
shall be made in ascertaining the Open Market Rent to reflect
such rent free period, concessionary rent or other inducement
as would be negotiated as aforesaid or to compensate the
Tenant for its absence) upon a letting of the Premises in the
open market with vacant possession at the Relevant Review Date
by a willing landlord to a willing tenant and without the
landlord receiving any premium or any other consideration for
the grant of the lease for a term of years equal to the longer
of (a) the residue of the Term remaining unexpired on the
Relevant Review Date and (b) ten (10) years and otherwise on
the terms and conditions and subject to the covenants and
provisions contained in a lease of the Premises on the terms
and conditions and subject to the covenants and provisions
contained in this Lease except for the following provisions of
this Lease:
Clause 1.14;
Clause 1.22;
Clause 20.2.1;
Clause 20.2.3;
Clause 20.3(ii);
Clause 21;
Schedule 5; and
Schedule 6
and except for the amount of the rent payable under this Lease
but including the provisions for the review of rent contained
in this clause ("THE HYPOTHETICAL LEASE") and making the
Assumptions but disregarding the Disregarded Matters;
5.1.2 "ASSUMPTIONS" means the following assumptions (if not facts)
at the Relevant
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Review Date:-
5.1.2.1 that the Premises are fit for immediate occupation
and use by the incoming tenant prior to such incoming
tenant's fit-out;
5.1.2.2 that no work has been carried out to the Premises by
the Tenant or any undertenant or their respective
predecessors in title during the Term, which has
diminished the rental value of the Premises;
5.1.2.3 that if the Premises or any part of them have been
destroyed or damaged, they have been fully rebuilt
and reinstated;
5.1.2.4 that the Premises are in a good state of repair and
decorative condition;
5.1.2.5 that all the covenants on the part of the Tenant and
the Landlord contained in this Lease have been fully
performed and observed.
5.1.3 "DISREGARDED MATTERS" means:-
5.1.3.1 any effect on rent of the fact that the Tenant or any
permitted undertenant or their respective
predecessors in title may have been in occupation of
the Premises or any part of them;
5.1.3.2 any goodwill attached to the Premises by reason of
the business then carried on at the Premises by the
Tenant or any permitted undertenant;
5.1.3.3 any increase in rental value of the Premises
attributable to the existence, at the Relevant Review
Date, of any improvement (including any fitting out
works carried out by the Tenant after the date
hereof) to the Premises or any part of them carried
out after the date of this Lease with all necessary
consents (where required) by the Tenant or any
permitted undertenant otherwise than in pursuance of
an obligation to the Landlord or its predecessors in
title.
5.1.4 "REVIEW SURVEYOR" means an independent chartered surveyor of
not less than ten (10) years' standing, who is experienced in
valuing and leasing property similar to the Premises and is
acquainted with the market in the area in which the Premises
are located appointed from time to time under this clause to
determine the Open
21
Market Rent.
5.2 RENT REVIEWS
The Principal Rent shall be reviewed at each Review Date in accordance
with the provisions of this clause and from and including each Review
Date the Principal Rent shall equal the higher of:-
5.2.1 the Principal Rent contractually payable immediately before
the Relevant Review Date (or which would be payable but for
any suspension of rent (in whole or in part) under this
Lease); and
5.2.2 the Open Market Rent on the Relevant Review Date as agreed or
determined pursuant to this clause.
5.3 AGREEMENT OR DETERMINATION OF THE REVIEWED RENT
The Open Market Rent at any Review Date may be agreed in writing at any
time between the Landlord and the Tenant but if, for any reason, they
have not so agreed, either party may (whether before or after the
Relevant Review Date) by notice in writing to the other require the
Open Market Rent to be determined by the Review Surveyor.
5.4 APPOINTMENT OF REVIEW SURVEYOR
In default of agreement between the Landlord and the Tenant on the
appointment of the Review Surveyor, the Review Surveyor shall be
appointed by the President on the written application of either party,
such application to be made not earlier than three (3) months before
the Relevant Review Date and not later than the next succeeding Review
Date.
5.5 FUNCTIONS OF REVIEW SURVEYOR
The Review Surveyor shall:-
5.5.1 act as an arbitrator in accordance with the Arbitration ▇▇▇
▇▇▇▇ unless both parties agree that he shall act as an expert;
5.5.2 if acting as an expert invite the Landlord and the Tenant to
submit to him, within such time limits (not being less than
fifteen (15) Working Days) as he shall consider appropriate, a
valuation accompanied by a statement of reasons and such
representations and cross-representations as to the amount of
the Open Market Rent with such supporting evidence as they may
respectively wish;
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5.5.2 if acting as arbitrator have power to order on a provisional
basis any relief which he would have power to grant in a final
award;
5.5.3 within sixty (60) days of the later of his appointment and the
Relevant Review Date, or within such extended period as the
Landlord and the Tenant may jointly agree in writing, give to
each of them written notice of the amount of the Open Market
Rent as determined by him.
5.6 FEES OF REVIEW SURVEYOR
5.6.1 The fees and expenses of the Review Surveyor if acting as an expert,
including the fee payable for his nomination, shall be in the award of
the Review Surveyor but, failing such award, the same shall be payable
by the Landlord and the Tenant in equal shares who shall each bear
their own costs, fees and expenses.
5.6.2 If either party fails to pay that party's share of the fees and
expenses of the Review Surveyor, including the fee payable for his
nomination, within five (5) Working Days after being required in
writing to do so, the other party may pay such fees and expenses, and
the share of the defaulting party shall become a debt payable to the
other party on written demand with interest on such share at the
Prescribed Rate from and including the date of payment by the other
party to the date of reimbursement by the defaulting party.
5.7 APPOINTMENT OF NEW REVIEW SURVEYOR
If the Review Surveyor fails to give notice of his determination within
the allotted time, or if he dies, is unwilling to act, or becomes
incapable of acting, or if, for any other reason, he is unable to act,
the Landlord or the Tenant may request the President to discharge the
Review Surveyor and appoint another surveyor in his place to act in the
same capacity, which procedure may be repeated as many times as
necessary.
5.8 INTERIM PAYMENTS PENDING DETERMINATION
If the amount of the reviewed rent has not been agreed or determined by
the Relevant Review Date (the date of agreement or determination being
called the "DETERMINATION DATE"), then:-
5.8.1 in respect of the period (the "INTERIM PERIOD") beginning with
the Relevant Review Date and ending on the day before the
quarter day following the Determination Date, the Tenant shall
pay to the Landlord the Principal Rent at the yearly rate
payable immediately before the Relevant Review Date together
with such further amounts (if any) as may be awarded by the
Review Surveyor or (if higher or no such award has been made),
such further amounts as the Tenant shall elect to pay;
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and
5.8.2 on the Determination Date, the Tenant shall pay to the
Landlord as arrears of rent the amount by which the reviewed
rent exceeds the rent actually paid during the Interim Period
(apportioned on a daily basis) together with interest on such
amount at 4% below the Prescribed Rate, such interest to be
calculated on the amount of each quarterly shortfall on a
day-to-day basis from the date on which it would have been
payable if the reviewed rent had then been agreed or
determined to the date of actual payment.
5.9 RENT RESTRICTIONS
If, at any time during the Term, restrictions are imposed by any
statute for the control of rent which prevent or prohibit wholly or
partly the operation of the rent review provisions contained in this
clause or which operate to impose any limitation, whether in time or
amount, on the collection and retention of any increase in the
Principal Rent or any part then and in each case respectively:-
5.9.1 the operation of the rent review provisions contained in this
clause shall be postponed to take effect on the first date on
which such operation (whether wholly or partially and with or
without limited effect) may occur and in the case of
restrictions which partially prevent or prohibit such
operation and/or limit its effect on each such date;
5.9.2 the collection of any increase in the rent shall be postponed
to take effect on the first date on which such increase may be
collected and/or retained in whole or in part and on as many
occasions as shall be required to ensure the collection of the
whole increase
and, until such restrictions shall be relaxed either wholly or
partially, the Principal Rent shall be the maximum sum from time to
time permitted by such restrictions.
5.10 MEMORANDA OF REVIEWED RENT
Within ten (10) Working Days after the amount of any reviewed rent has
been agreed or determined, memoranda recording that fact shall be
prepared by the Landlord or its solicitors and shall be signed by or on
behalf of the Landlord and the Tenant and any Guarantor and annexed to
this Lease and its counterpart. The parties shall each bear their own
costs in relation to the preparation and signing of such memoranda.
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5.11 TIME NOT OF THE ESSENCE
For the purpose of this clause, time shall not be of the essence.
6. INTEREST
6.1 INTEREST ON LATE PAYMENTS
Without prejudice to any other right, remedy or power contained in this
Lease or otherwise available to the Landlord, if any of the Rents
(whether formally demanded or not) or any other sum of money payable to
the Landlord by the Tenant under this Lease shall not be paid so that
the Landlord receives full value in cleared funds:-
6.1.1 in the case of the Principal Rent and any Value Added Tax
chargeable on it, within three Working Days of the day on
which payment is due; or
6.1.2 in the case of any other Rents or sums, within ten (10)
Working Days of the date when payment is due
the Tenant shall pay interest on such Rents and/or sums at the
Prescribed Rate from and including the date when payment was due to the
date of payment to the Landlord (both before and after any judgment).
25
6.2 INTEREST ON REFUSED PAYMENTS
Without prejudice to any other right, remedy or power contained in this
Lease or otherwise available to the Landlord, if the Landlord acting as
a reasonable institutional Landlord shall decline to accept any of the
Rents so as not to waive any existing actual breach, the Tenant shall
pay interest on such Rent at the Prescribed Rate from and including the
date when payment was due (or, where applicable, would have been due if
demanded on the earliest date on which it could have been demanded) to
the date when payment is accepted by the Landlord.
7. OUTGOINGS
7.1 TENANT'S OBLIGATION TO PAY
The Tenant shall pay, or indemnify the Landlord against, all existing
and future rates, taxes, duties, charges, assessments, impositions and
other outgoings whatsoever (whether parliamentary, parochial, local or
of any other description and whether or not of a capital or
non-recurring nature or of a wholly novel character) which are now or
may at any time during the Term be charged, levied, assessed or imposed
upon, or payable in respect of, the Premises or upon the owner or
occupier of them (excluding any tax payable by the Landlord occasioned
by any disposition of, or dealing with, the reversion of this Lease or
receipt of the Rents) and, in the absence of a direct assessment on the
Premises, shall pay to the Landlord a fair proportion (to be reasonably
determined by the Landlord) of any such outgoings.
7.2 INDEMNITY AGAINST VOID RATING RELIEF
The Tenant shall indemnify the Landlord against any loss to the
Landlord of one half of the void rating relief which might have been
applicable to the Premises by reason of the Premises being vacant after
the end of the Term (or any earlier termination of it) on the ground
that such relief has already been allowed to the Tenant.
7.3 COSTS OF UTILITIES ETC.
The Tenant shall:-
7.3.1 pay all charges for electricity, gas and water consumed in the
Premises, including any connection and hiring charges and
meter rents; and
7.3.2 perform and observe all present and future regulations and
requirements of the electricity, gas and water supply
companies or boards in respect of the supply and consumption
of electricity, gas and water on the Premises.
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8. VALUE ADDED TAX
8.1 SUMS EXCLUSIVE OF VAT
All sums payable under this Lease by the Tenant to the Landlord (with
the exception of the rent reserved in clause 4.1.4) shall be deemed to
be exclusive of Value Added Tax.
8.2 TENANT TO PAY VAT
Where pursuant to the terms of this Lease the Landlord makes a supply
to the Tenant (other than a supply made in consideration for the
payment of the Rents) and Value Added Tax is payable in respect of such
supply, the Tenant shall pay to the Landlord on the date of such supply
a sum equal to the amount of Value Added Tax so payable and any penalty
or interest incurred by the Landlord for any late payment of such Value
Added Tax.
8.3 VAT INCURRED BY LANDLORD
Where the Tenant is required by the terms of this Lease to reimburse
the Landlord for the costs or expenses of any supplies made to the
Landlord, the Tenant shall also at the same time pay or, as the case
may be, indemnify the Landlord against all Value Added Tax input tax
incurred by the Landlord in respect of those supplies save to the
extent that the Landlord is entitled to repayment or credit in respect
of such Value Added Tax input tax.
9. TAXATION
Notwithstanding anything contained in this Lease, the Tenant shall:-
9.1 not do on, or in relation to, the Premises or any part of them, or in
relation to any interest of the Tenant in the Premises, any act or
thing (other than the payment of the Rents) which shall render the
Landlord liable for any tax, levy, charge or other fiscal imposition of
whatsoever nature;
9.2 not dispose of, or deal with, this Lease in such a way that the
Landlord shall be or become liable for any such tax, levy, charge or
fiscal imposition; and
9.3 indemnify the Landlord against any loss arising from a breach of the
terms of clause 9.1 or clause 9.2.
10. LANDLORD'S COSTS
Within ten (10) Working Days of written demand, the Tenant shall pay,
or indemnify the Landlord and any mortgagee against, all reasonable
costs, fees, charges, disbursements and expenses properly incurred by
them, including those payable to solicitors, counsel, surveyors,
architects and bailiffs:-
27
10.1 in relation to the preparation and service of a notice under
section 146 of the Law of Property ▇▇▇ ▇▇▇▇ or any proceedings
under section 146 or section 147 of that Act (whether or not
any right of re-entry or forfeiture has been waived by the
Landlord or a notice served under section 146 is complied with
by the Tenant or the Tenant has been relieved under the
provisions of that Act and even though forfeiture may be
avoided otherwise than by relief granted by the court);
10.2 in relation to the preparation and service of all notices and
schedules relating to any wants of repair, whether served
during or after the expiration of the Term (but relating in
all cases only to such wants of repair which accrued not later
than the expiration or earlier determination of the Term);
10.3 in connection with the recovery or attempted recovery of
arrears of rent or other sums due from the Tenant, or in
procuring the remedying of the breach of any covenant by the
Tenant;
10.4 in relation to any application for consent required or made
necessary by this Lease whether or not it is granted (except
in cases where the Landlord is obliged not to withhold its
consent unreasonably and the withholding of its consent is
held to be unreasonable), or the application is withdrawn;
10.5 in responding to any request made by the Tenant.
SECTION 4
REPAIRS, ALTERATIONS AND SIGNS
11. REPAIRS, DECORATION ETC.
11.1 REPAIRS
Subject to clause 11.2, the Tenant shall:-
11.1.1 repair and keep in good and substantial repair and condition
the Premises;
11.1.2 as and when necessary, replace any of the landlord's fixtures
and fittings which may be or become beyond repair with new
ones which are similar in type and quality; and
11.1.3 keep all parts of the Premises which are not built on in a
good and clean condition,
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adequately surfaced and free from weeds and all landscaped
areas properly cultivated and maintained and any trees
preserved.
11.2 DAMAGE BY THE INSURED RISKS
There shall be excepted from the obligations contained in clause 11.1
any damage caused by the Insured Risks save to the extent that payment
of the insurance moneys shall be withheld by reason of any act, neglect
or default of the Tenant, any undertenant or occupier or any of their
respective agents, licensees, visitors or contractors or any person
under the control of any of them.
11.3 INTERNAL DECORATIONS
The Tenant shall:-
11.3.1 in every Decoration Year and also in the last three (3) months
of the Term (whether determined by passage of time or
otherwise), in a good and workmanlike manner prepare and
decorate with good quality paint or otherwise treat, as
appropriate, all internal parts of the Premises, such
decorations and treatment in the last three months of the Term
to be executed in such colours and materials as the Landlord
may reasonably require;
11.3.2 as often as may be reasonably necessary, wash down all tiles,
glazed bricks and similar washable surfaces.
11.4 EXTERNAL DECORATIONS
The Tenant shall:-
11.4.1 in every Decoration Year and also during the last six (6)
months of the Term (whether determined by passage of time or
otherwise) in a good and workmanlike manner prepare and
decorate with at least two coats of good quality paint and in
colours to be approved in writing by the Landlord (such
approval not to be unreasonably withheld), or otherwise treat,
as appropriate, all external parts of the Premises;
11.4.2 as often as reasonably necessary, clean, make good and restore
and, where appropriate, treat with suitable preservative any
external cladding, brickwork, concrete, stonework or other
finish of the Premises.
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11.5 PLANT AND MACHINERY
The Tenant shall keep all lifts, boilers and central heating and air
conditioning plant, and other plant, machinery, apparatus and equipment
in the Premises properly maintained and in good working order and
condition and for that purpose shall:-
11.5.1 employ reputable contractors or appropriately qualified
persons regularly to inspect, maintain and service them;
11.5.2 renew or replace all working and other parts as and when
necessary.
11.6 CLEANING
The Tenant shall:-
11.6.1 keep the Premises in a clean and tidy condition;
11.6.2 at least once in every period of six months properly clean
both sides of the windows or window frames and all other glass
in the Premises.
11.7 CARPETING
The Tenant shall maintain the carpets now, or from time to time, laid
in the Premises and, when necessary, replace them with new carpets of
equivalent quality and value.
12. YIELD UP
12.1 REINSTATEMENT OF PREMISES
Immediately prior to the expiration or earlier determination of the
Term, the Tenant shall at its cost:-
12.1.1 replace any of the landlord's fixtures and fittings which
shall be missing, damaged (to the extent that the same are
beyond repair) or destroyed, with new ones of similar kind and
quality;
12.1.2 remove from the Premises any sign, writing or painting of the
name or business of the Tenant or any occupier of them and all
tenant's fixtures, fittings, furniture and effects and make
good, to the reasonable satisfaction of the Landlord, all
damage caused by such removal;
12.1.3 unless required by the Landlord not to do so by no less than
three months' prior
30
notice, to remove and make good any alterations or additions
made to the Premises during the Term, and well and
substantially reinstate the Premises to the Landlord's
reasonable satisfaction.
12.2 YIELDING UP IN GOOD REPAIR
At the expiration or earlier determination of the Term, the Tenant
shall quietly yield up the Premises to the Landlord in good and
substantial repair and condition and in accordance with the covenants
by the Tenant contained in this Lease.
13. COMPLIANCE WITH NOTICES
13.1 TENANT TO REMEDY BREACHES OF COVENANT
Whenever the Landlord shall give written notice to the Tenant of any
defects, wants of repair or breaches of covenant, the Tenant shall,
within ninety (90) days of such notice, or such other period as may be
reasonable in the circumstances, make good such defects or wants of
repair and remedy the breach of covenant to the reasonable satisfaction
of the Landlord.
13.2 FAILURE OF TENANT TO REPAIR
If the Tenant shall fail within fifteen (15) Working Days of such
notice, or as soon as reasonably possible in the case of emergency, to
commence and then diligently and expeditiously to continue to comply
with such notice, the Landlord may enter the Premises and carry out, or
cause to be carried out, any of the works properly referred to in such
notice and all costs and expenses incurred as a result shall be paid by
the Tenant to the Landlord on demand and, in default of payment, shall
be recoverable as rent in arrear.
14. ALTERATIONS
14.1 NO STRUCTURAL ALTERATIONS
14.1.1 The Tenant shall not alter, cut into or remove the structural frame or
foundations of the Premises.
14.1.2 Subject to clause 14.1.1, the Tenant shall not make any other
alterations to the structure of the Premises without the prior written
consent of the Landlord (such consent not to be unreasonably withheld).
14.2 NON-STRUCTURAL ALTERATIONS
The Tenant shall not make any alteration or addition of a
non-structural nature to the Premises nor to the Conduits or Mechanical
or Electrical installations in the Premises without the prior written
consent of the Landlord (such consent not to be unreasonably withheld).
31
14.3 DEMOUNTABLE PARTITIONING
The Tenant may install, alter or remove demountable partitioning in the
Premises without the prior written consent of the Landlord provided
always that the Tenant shall remove such partitioning and reinstate the
Premises at the end or earlier determination of the Lease.
14.4 COVENANTS BY TENANT
The Tenant shall enter into:-
(a) such covenants as the Landlord may reasonably require
regarding the execution of any works to which the Landlord
consents under this clause, and
(b) such covenants as the Landlord may require regarding the
reinstatement of the Premises at the end or earlier
determination of the Term.
15. SIGNS AND ADVERTISEMENTS
15.1 For so long as the Tenant remains in actual occupation of the whole or
substantially the whole of the Premises, the Tenant shall have the
right to designate the name of the Premises and the right to erect and
display on the Premises a sign or signs indicating the name of the
Premises and the name and trade carried on by the Tenant, such rights
being subject to obtaining the prior written approval of the Landlord
(not to be unreasonably withheld) as to name of the Premises and the
size, style and position and the materials to be used for any signs.
15.2 Subject to clause 15.1, the Tenant shall not erect or display on the
exterior of the Premises or in the windows of them so as to be visible
from the exterior, any advertisement, poster, notice, pole, flag,
aerial, satellite dish or any other sign or thing without the prior
written approval of the Landlord to the size, style and position and
the materials to be used such approval not to be unreasonably withheld.
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SECTION 5
USE
16. USE OF PREMISES
16.1 PERMITTED USE
The Tenant shall not use the Premises or any part of them except for
the Permitted Use.
16.2 TENANT NOT TO LEAVE PREMISES UNOCCUPIED
The Tenant shall not leave the Premises continuously unoccupied for
more than thirty (30) days without notifying the Landlord and
providing, or paying for, such caretaking or security arrangements as
the Landlord shall reasonably require in order to protect the Premises
from vandalism, theft or unlawful occupation.
17. USE RESTRICTIONS
The Tenant shall perform and observe the obligations set out in
SCHEDULE 2.
18. EXCLUSION OF WARRANTY AS TO USER
18.1 NO WARRANTY BY LANDLORD
Nothing contained in this Lease, or in any consent or approval granted
by the Landlord under this Lease, shall imply or warrant that the
Premises may be used under the Planning Acts for the purpose permitted
by this Lease or any purpose subsequently permitted.
18.2 TENANT'S ACKNOWLEDGEMENT
The Tenant acknowledges that neither the Landlord nor any person acting
on behalf of the Landlord has at any time made any representation or
given any warranty that any use permitted by this Lease is, will be, or
will remain, a use authorised under the Planning Acts and even though
any such use may not be a use authorised under the Planning Acts, the
Tenant shall remain fully liable to the Landlord in respect of the
obligations undertaken by the Tenant in this Lease without being
entitled to any compensation, recompense or relief of any kind.
33
SECTION 6
DISPOSALS
19. GENERAL RESTRICTIONS
19.1 ALIENATION GENERALLY
The Tenant shall not assign, charge, underlet or part with possession
or share the occupation of, or permit any person to occupy, or create
any trust in respect of the Tenant's interest in, the whole or any part
of the Premises, except as may be expressly permitted by this clause
and clauses 20, 21 and 22.
19.2 SHARING WITH A GROUP COMPANY
Nothing in this clause or clauses 20, 21 and 22 shall prevent the
Tenant from sharing occupation of the whole or any part of the Premises
with any company which is, for the time being, a Group Company of the
Tenant subject to (a) the Tenant giving to the Landlord written notice
of the sharing of occupation and the name of the Group Company
concerned within five (5) Working Days after the sharing begins (b) the
Tenant and that Group Company remaining in the same relationship whilst
the sharing lasts and (c) the sharing not creating the relationship of
landlord and tenant between the Tenant and that Group Company.
20. ASSIGNMENT
20.1 NO ASSIGNMENT OF PART
The Tenant shall not assign any part or parts (as distinct from the
whole) of the Premises.
20.2 CIRCUMSTANCES IN WHICH CONSENT TO ASSIGNMENT MAY BE WITHHELD
For the purposes of Section 19 (1 A) of the Landlord and ▇▇▇▇▇▇ ▇▇▇
▇▇▇▇ it is agreed that the Landlord may withhold its consent to an
assignment of the whole of the Premises in the following circumstances:
20.2.1 Where the proposed assignee is resident in the United Kingdom,
or in the case of a body corporate is incorporated in the
United Kingdom, if the Pre-tax Profits of the proposed
assignee for each of the three consecutive years immediately
prior to the application to the Landlord do not exceed three
times the Principal Rent, and the Net Tangible Assets of the
proposed assignee do not exceed five times the Principal Rent
for each of the years in the same three year period;
20.2.2 Where the proposed assignee is not resident in, or in the case
of a body corporate, is not incorporated in the United
Kingdom, except where the proposed assignee is
34
incorporated in a jurisdiction which recognises judgments of
the United Kingdom courts as enforceable without
reconsideration of the merits of the issues determined by the
United Kingdom courts;
20.2.3 Where the proposed assignee is not resident in, or in the case
of a body corporate, is not incorporated in the United
Kingdom, if the Pre-tax Profits of the proposed assignee for
each of the three consecutive years immediately prior to the
application to the Landlord do not exceed six times the
Principal Rent, and the Net Tangible Assets of the proposed
assignee do not exceed ten times the Principal Rent for each
of the years in the same three year period;
20.2.4 Where the proposed assignee is an associated company of the
Tenant, except where the assignment is made jointly to such
associated company and the Tenant and any Guarantor, and the
financial strength of such associated company is equal to or
greater than that of the Tenant and any Guarantor;
20.2.5 Where the proposed assignee is any person or entity who has
the right to claim sovereign or diplomatic immunity or
exemption from liability from the covenants on the part of the
Tenant contained in this Lease
20.2.6 Where the proposed assignee is any person or entity in relation
to whom any of the events mentioned in Clause 30.2 of this
Lease would have occurred if that person or entity were the
Tenant under this Lease.
20.2.7 If there are any arrears of the Rents or any material
outstanding breaches of the Tenant's obligations under this
Lease.
20.2.8 If in the Landlord's reasonable opinion the proposed assignee
is not of sufficient financial standing to comply with the
obligations of the Tenant contained in this Lease.
20.3 CONDITIONS FOR LANDLORD'S CONSENT
For the purposes of Section 19 (1 A) of the Landlord and ▇▇▇▇▇▇ ▇▇▇
▇▇▇▇ it is further agreed that any consent of the Landlord to an
assignment of the whole of the Premises may be subject to the following
conditions:-
(i) that the Tenant shall, prior to the proposed assignment being
completed, execute and deliver to the Landlord a deed which
shall be prepared by the Landlord's
35
solicitors containing covenants on the part of the Tenant in
the form of those contained in Schedule 4 (therein defined as
the "Present Tenant");
(ii) that if the Landlord is entitled to withhold its consent to an
assignment of this Lease to the proposed assignee pursuant to
clause 20.2.1 or clause 20.2.3 the Tenant shall procure that a
guarantor reasonably acceptable to the Landlord and which has
Net Tangible Assets at least equal to those of Seagate
Technology Inc as at the date hereof and which, in the case of
a body corporate is either incorporated in the United Kingdom,
or incorporated in a jurisdiction which recognises judgments
of the United Kingdom courts as enforceable without
reconsideration of the merits of the issues determined by the
United Kingdom courts, shall enter into covenants in the form
of the covenants contained in Schedule 3.
20.4 ASSIGNMENT OF THE WHOLE
Without prejudice to the provisions of Clauses 19 to 20.3 inclusive the
Tenant shall not assign the whole of the Premises without the prior
written consent of the Landlord and except in relation to the
circumstances mentioned in Clause 20.2 and the conditions mentioned in
Clause 20.3 such consent shall not be unreasonably withheld. The
parties agree that in considering whether or not the Landlord is
reasonably withholding such consent due and proper regard shall be had
to the provisions and effect of the Landlord and Tenant (Covenants) ▇▇▇
▇▇▇▇.
20.5 S.144 LPA 1925
To the extent (if any) necessary to make the foregoing provisions of
this Lease effective but not further or otherwise) Section 144 of the
Law of Property ▇▇▇ ▇▇▇▇ shall not apply.
21. ARRANGEMENTS FOR THE SUBSTITUTION OF THE GUARANTOR
21.1 SUBSTITUTION AND RELEASE OF SEAGATE TECHNOLOGY INC
Seagate Technology Inc shall be entitled to be released from its
liability as guarantor under the terms of this Lease in the following
circumstances and upon the following conditions:
(a) (i) that the issued share capital of Seagate Software
Inc is successfully listed on the NASDAQ Stock Market
or another publicly traded US Stock Exchange for
which the requirements for listing are at least
equivalent to those of the NASDAQ Stock Market and
for the year immediately prior to the application to
the Landlord, its Pre-tax Profits are equivalent to
nine times the Principal Rent, and for each of the
two consecutive preceding years its Pre-tax Profits
are equivalent to six times the Principal Rent
36
payable at the time of the application to the
Landlord; or
(ii) Seagate Software Inc. has for each of the three
consecutive years immediately prior to the
application to the Landlord Pre-tax Profits
equivalent to twelve times the Principal Rent payable
at the time of the application to the Landlord; and
(iii) in either of the circumstances mentioned in (i) or
(ii) above Seagate Software Inc. enters into a Deed
of Covenant with the Landlord containing covenants in
the form of those contained in Schedule 3; or
(b) Seagate Software Ltd has, for each of the three consecutive
years immediately prior to the application to the Landlord,
Pre-tax Profits equivalent to three times the Principal Rent,
and Net Tangible Assets in the UK equivalent to five times the
Principal Rent for each of the years in the same three year
period; or
(c) the Tenant proposes to assign the whole of the Premises to
Seagate Software Ltd and another company which is either:
(i) a UK company or a foreign company with UK assets,
which has for each of the three consecutive years
immediately prior to the application to the Landlord,
Pre-tax Profits equivalent to three times the
Principal Rent, or Net Tangible Assets in the UK
equivalent to five times the Principal Rent for each
of the years in the same three year period and, in
the case of a foreign company, that company is
incorporated in a jurisdiction which recognises
judgments of the United Kingdom courts as enforceable
without reconsideration of the issues determined by
the United Kingdom courts; or
(ii) a foreign company without assets in the UK which has
for each of the three consecutive years immediately
to the application to the Landlord Pre-tax Profits
equivalent to six times the Principal Rent and Net
Tangible Assets equivalent to ten times the Principal
Rent for each of the years in the same three year
period and, in the case of a foreign company, that
company is incorporated in a jurisdiction which
recognises judgments of the United Kingdom courts as
enforceable without reconsideration of the issues
determined by the United Kingdom courts.
37
21.2 PROVISIONS OF ACCOUNTS AND OTHER DOCUMENTARY EVIDENCE
If the conditions referred to in clause 21.1(a), (b) or (c) are
satisfied, the Tenant shall serve written notice on the Landlord and
provide such copy accounts and other documentary evidence as is
sufficient to demonstrate that such conditions are satisfied or
otherwise as the Landlord may reasonably require and if such evidence
is provided to the Landlord as is sufficient to show that the
circumstances referred to in clause 21.1(a) or clause 21.1(b) are
satisfied the Landlord, the Tenant and Seagate Technology Inc. shall
within twenty (20) Working Days thereafter enter into a Deed of Release
in the form of the draft deed contained in Schedule 5.
21.3 LANDLORD'S CONSENT TO ASSIGNMENT
(Subject to Clause 21.4) the Landlord shall not withhold its consent to
an assignment of the whole of the Premises in the circumstances
referred to in clause 21.1(c), and within twenty (20) Working Days
after receipt by the Landlord of copies of such accounts and other
documentary evidence as is sufficient to demonstrate that such
conditions are satisfied or otherwise as the Landlord may reasonably
require, the Landlord, the Tenant, the proposed assignee and Seagate
Technology Inc shall enter into a Licence to Assign and Deed of Release
in the form of the draft deed contained in Schedule 6.
21.4 CONDITIONS FOR LANDLORD'S CONSENT
In relation to an assignment of the whole of the Premises in the
circumstances referred to in clause 21.1(c) the Landlord may withhold
its consent in the circumstances referred to in sub-clauses 20.2.2,
20.2.5 or 20.2.6 or if there are any material unremedied breaches of
the Tenant's obligations under this Lease but the other circumstances
referred to in clause 20.2 and the conditions referred to in clause
20.3 shall not apply.
21.5 APPLICATION FOR THE RELEASE OF SEAGATE SOFTWARE INC
In the event that a deed of covenant is entered into by Seagate
Software Inc. as referred to in Clause 21.1(a)(ii), Seagate Software
Inc shall be entitled to be released from its liability as guarantor
under such deed in the following circumstances and upon the following
conditions:
(a) Seagate Software Ltd has for each of the three consecutive
years immediately prior to the application to the Landlord,
Pre-tax Profits equivalent to three times the Principal Rent,
or Net Tangible Assets in the UK equivalent to five times the
Principal Rent for each of the years in the same three year
period; or
(b) the Tenant proposes to assign the whole of the Premises to
Seagate Software Ltd and another company which is either:
38
(i) a UK company or a foreign company with UK assets,
which has for each of the three consecutive years
immediately prior to the application to the Landlord,
Pre-tax Profits equivalent to three times the
Principal Rent, or Net Tangible Assets in the UK
equivalent to five times the Principal Rent for each
of the years in the same three year period and, in
the case of a foreign company, that company is
incorporated in a jurisdiction which recognises
judgments of the United Kingdom courts as enforceable
without reconsideration of the issues determined by
the United Kingdom courts; or
(ii) a foreign company without assets in the UK which has
for each of the three consecutive years immediately
prior to the application to the Landlord Pre-tax
Profits equivalent to six times the Principal Rent
and Net Tangible Assets worth equivalent to ten times
the Principal Rent for each of the years in the same
three year period and, in the case of a foreign
company, that company is incorporated in a
jurisdiction which recognises judgments of the United
Kingdom courts as enforceable without reconsideration
of the issues determined by the United Kingdom
courts.
21.6 PROVISION OF ACCOUNTS AND OTHER DOCUMENTARY EVIDENCE
If the conditions referred to in clause 21.5(a) or (b) are satisfied
the Tenant shall serve written notice on the Landlord and provide such
copies of accounts and other documentary evidence as is sufficient to
demonstrate that such conditions are satisfied or otherwise as the
Landlord may reasonably require and if such evidence is provided to the
Landlord as is sufficient to show that the circumstance referred to in
clause 21.5(a) is satisfied the Landlord, the Tenant and Seagate
Software Inc. shall within twenty (20) Working Days thereafter enter
into a Deed of Release in the form of the draft deed contained in
Schedule 5.
21.7 LANDLORD'S CONSENT TO ASSIGNMENT
The Landlord shall not withhold its consent to an assignment of the
whole of the Premises in the circumstances referred to in clause
21.5(b), and within twenty (20) Working Days after receipt by the
Landlord of copies of such accounts and other documentary evidence as
the Landlord shall reasonably require, the Landlord and Seagate
Software Inc shall enter into a Licence to Assign and Deed of Release
in the form of the draft deed contained in Schedule 6.
21.8 CONDITIONS FOR LANDLORD'S CONSENT
In relation to an assignment of the whole of the Premises in the
circumstances referred to in
39
clause 21.5(b) the Landlord may withhold its consent in the
circumstances referred to in sub-clauses 20.2.2, 20.2.5 or 20.2.6 or if
there are any outstanding breaches of the Tenant's obligations under
this Lease, but the other circumstances referred to in clause 20.2
referred to in clause 20.3 shall not apply.
22. UNDERLETTING
22.1 SUBLETTING UNIT
For the purposes of this clause "Subletting Unit" means each separate
unit of accommodation which comprises:-
(i) the whole of the Net Internal Area of a floor other than the
basement; or
(ii) a part of a floor of the Premises (other than the basement)
which is capable of being occupied and used as a separate and
self contained unit with all necessary and proper services;
(iii) any combination of contiguous complete floors of the Premises;
and
(iv) a complete floor or floors or a part of a floor as described
in (ii) above and the whole of the basement or a part of the
basement which is capable of being occupied and used as a
separate and self-contained unit with all necessary and proper
services.
22.2 UNDERLETTING OF PART
The Tenant shall not underlet any part of the Premises other than on
the following conditions:-
22.2.1 the Premises shall not at any time be in the occupation of
more than six (6) persons, the Tenant and any Group Company
which is permitted to share occupation under clause 19.2
counting as one; and
22.2.2 there shall not at any time be more than two persons in
occupation of any one floor of the Premises, the Tenant and
any Group Company which is permitted to share occupation under
Clause 19.2 counting as one; and
22.2.3 the part of the Premises to be underlet shall comprise a
Subletting Unit only; and
22.2.4 if the Landlord shall reasonably so require, the Tenant shall
obtain an acceptable guarantor for any proposed undertenant
and such guarantor shall execute and
40
deliver to the Landlord a deed containing covenants by that
guarantor (or, if more than one, joint and several covenants)
with the Landlord, as a primary obligation, in the terms
contained in SCHEDULE 3 (with any necessary changes) or in
such other terms as the Landlord may reasonably require; and
22.2.5 the underlease shall incorporate an agreement, authorised
beforehand by the Court, excluding sections 24 to 28 of the
Landlord and ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ in relation to such underlease.
22.3 UNDERLETTING OF THE WHOLE
The Tenant shall not underlet the whole of the Premises other than on
condition that the underlease incorporates an agreement, authorised
beforehand by the Court, excluding sections 24 to 28 of the Landlord
and ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ in relation to such underlease.
22.4 UNDERLETTING RENT
The Tenant shall not underlet the whole of the Premises or part at a
fine or premium or at a rent less than the open market rent of the
Premises.
22.5 DIRECT COVENANTS FROM UNDERTENANT
Prior to any permitted underlease, the Tenant shall procure that the
undertenant enters into the following direct covenants with the
Landlord:-
22.5.1 an unqualified covenant by the undertenant not to assign or
charge any part of the premises to be underlet;
22.5.2 an unqualified covenant by the undertenant not to underlet the
whole or any part of the premises to be underlet nor (save by
way of an assignment of the whole or an underlease of the
whole of the premises to be underlet) part with possession or
share the occupation of the whole or any part of the premises
to be underlet or permit any person to occupy them;
22.5.3 a covenant by the undertenant not to assign, or charge or
underlet the whole of the premises to be underlet without the
prior written consent of the Landlord, such consent not to be
unreasonably withheld;
22.5.4 a covenant by the undertenant to perform and observe all the
tenant's covenants contained in (a) this Lease (other than the
payment of the Rents) so far as the same are applicable to the
premises to be underlet, and (b) the permitted underlease.
41
22.6 CONTENTS OF UNDERLEASE
Every permitted underlease (a final copy of which shall be supplied to,
and approved by, the Landlord prior to its grant, such approval not to
be unreasonably withheld) shall contain:-
22.6.1 provisions for the review of the rent payable under it on an
upwards only basis corresponding both as to terms and dates
with the rent review provisions in this Lease;
22.6.2 a covenant by the undertenant (which the Tenant covenants to
enforce) prohibiting the undertenant from doing or suffering
any act or thing on, or in relation to, the premises underlet
inconsistent with, or in breach of, this Lease;
22.6.3 a condition for re-entry on breach of any covenant by the
undertenant;
22.6.4 the same restrictions as to assignment, underletting, charging
and parting with or sharing the possession or occupation of
the premises underlet, and the same provisions for direct
covenants and registration, as are in this Lease (with any
necessary changes).
22.7 TENANT TO OBTAIN LANDLORD'S CONSENT
Without prejudice to the other provisions of this clause, the Tenant
shall not underlet the whole of the Premises or underlet a Subletting
Unit without the prior written consent of the Landlord, such consent
not to be unreasonably withheld or delayed.
22.8 TENANT TO ENFORCE OBLIGATIONS
The Tenant shall enforce the performance and observance of the
covenants by the undertenant contained in any permitted underlease and
shall not, at any time, either expressly or by implication, waive any
breach of them.
22.9 REVIEW OF UNDERLEASE RENT
The Tenant shall:-
22.9.1 procure that the rent under any permitted underlease is
reviewed in accordance with its terms but shall not agree any
reviewed rent with the undertenant nor any rent payable on any
renewal of it without the prior written consent of the
Landlord (such consent not to be unreasonably withheld);
42
22.9.2 procure that the Landlord's representations as to the rent
payable under that underlease are made to the independent
person appointed to determine the rent under the underlease to
the reasonable satisfaction of the Landlord; and
22.9.3 if the rent under any such underlease is to be determined by
an independent person, not determine whether such person is to
act as an expert or as an arbitrator without the Landlord's
prior written consent (such consent not to be unreasonably
withheld or delayed).
22.10 NO VARIATION OF TERMS
The Tenant shall not vary the terms, or accept any surrender, of any
permitted underlease, without the prior written consent of the
Landlord, such consent not to be unreasonably withheld.
22.11 NO REDUCTION IN RENT
The Tenant shall procure that the rent payable under any permitted
underlease is not commuted or made payable more than one quarter in
advance, and shall not permit any reduction of that rent.
23. REGISTRATION OF DISPOSITIONS
Within fifteen (15) Working Days of every assignment, transfer, assent,
underlease, assignment of underlease, mortgage, charge or any other
disposition, whether mediate or immediate, of or relating to the
Premises or any part, the Tenant shall provide the Landlord or its
solicitors with a copy (certified as true) of the deed, instrument or
other document evidencing or effecting such disposition and, on each
occasion, shall pay to the Landlord or its solicitors a fee of
Twenty-five pounds (L25.00) or such larger sum as may be reasonable.
SECTION 7
LEGAL REQUIREMENTS
24. STATUTORY REQUIREMENTS
24.1 TENANT TO COMPLY WITH STATUTES
The Tenant shall, at its expense, comply in all respects with every
statute now in force or which may, after the date of this Lease, be in
force and any other obligation imposed by law and all regulations laws
or directives made or issued by or with the authority of The European
Commission and/or The Council of Ministers relating to the Premises or
their use, including the Offices, Shops and Railway Premises ▇▇▇ ▇▇▇▇,
the Fire Precautions ▇▇▇ ▇▇▇▇, the Defective Premises ▇▇▇ ▇▇▇▇, the
Health and Safety at Work etc. ▇▇▇ ▇▇▇▇ and the
43
Environmental Protection ▇▇▇ ▇▇▇▇.
24.2 TENANT TO EXECUTE NECESSARY WORKS
The Tenant shall execute all works and provide and maintain all
arrangements on or in respect of the Premises or their use which are
required by any statute now in force or which may after the date of
this Lease be in force or by any government department, local, public
or other competent authority or court of competent jurisdiction acting
under or in pursuance of any statute, whether any of the same are
required to be carried out by the landlord, tenant or occupier, and
shall indemnify the Landlord against all costs, charges, fees and
expenses of, or incidental to, the execution of any works or the
provision or maintenance of any arrangements so required.
24.3 TENANT TO REFRAIN FROM CERTAIN ACTS
The Tenant shall not do, or omit to be done, in or near the Premises,
any act or thing by reason of which the Landlord may, under any
statute, incur or have imposed upon it, or become liable to pay, any
damages, compensation, costs, charges, expenses or penalty.
25. PLANNING ACTS
25.1 TENANT'S OBLIGATION TO COMPLY
The Tenant shall comply with the Planning Acts and with any planning
permission relating to, or affecting, the Premises, and indemnify the
Landlord against all actions, proceedings, claims, demands, losses,
costs, expenses, damages and liability whatsoever in respect of any
non-compliance.
25.2 NO APPLICATION FOR PLANNING PERMISSION WITHOUT CONSENT
The Tenant shall not make any application for planning permission or
for other consents required under the Planning Acts in respect of the
Premises without the prior written consent of the Landlord, such
consent not to be unreasonably withheld.
25.3 TENANT TO OBTAIN ALL PERMISSIONS
The Tenant shall, at its expense, obtain and, if appropriate, renew any
planning permission and any other consent and serve all necessary
notices required for the carrying out by the Tenant of any operations
or the commencement or continuance of any use on the Premises.
44
25.4 TENANT TO PAY PLANNING CHARGES
The Tenant shall pay and satisfy any charge or levy imposed under the
Planning Acts in respect of any Development by the Tenant on the
Premises.
25.5 NO IMPLEMENTATION OF PERMISSION WITHOUT APPROVAL
The Tenant shall not implement any planning permission or consent
required under the Planning Acts before it has been produced to, and
approved in writing by, the Landlord, such approval not to be
unreasonably withheld but the Landlord may refuse to approve such
planning permission or consent on the grounds that any condition
contained in it, or anything omitted from it, or the period referred to
in it, would, in the reasonable opinion of the Landlord, be or be
likely to be materially prejudicial to the Landlord's interest in the
Premises, whether during or following the expiration or earlier
determination of the Term.
25.6 TENANT TO CARRY OUT WORKS BEFORE END OF TERM
Unless the Landlord shall otherwise direct in writing, the Tenant shall
carry out and complete before the expiration or earlier determination
of the Term:-
25.6.1 any works required to be carried out to the Premises as a
condition of any planning permission granted during the Term
and implemented by the Tenant whether or not the date by which
the planning permission requires such works to be carried out
is within the Term; and
25.6.2 any Development begun upon the Premises in respect of which
the Landlord may be or become liable for any charge or levy
under the Planning Acts.
25.7 PLANS ETC. TO BE PRODUCED
The Tenant shall produce to the Landlord on demand all plans, documents
and other evidence as the Landlord may reasonably require in order to
satisfy itself that this clause has been complied with.
25.8 PLANNING CONDITIONS
Where a planning permission has been granted subject to conditions, the
Landlord shall be entitled, where it is reasonable to do so, to require
the Tenant to provide security for compliance with such conditions, and
the Tenant shall not implement the planning permission until security
shall have been provided to the reasonable satisfaction of the
Landlord.
45
25.9 PLANNING REFUSAL
If reasonably required by the Landlord and at the cost of the Landlord,
the Tenant shall appeal against any refusal of planning permission or
the imposition of any condition in a planning permission relating to
the Premises following an application made by the Tenant.
26. STATUTORY NOTICES
26.1 NOTICES GENERALLY
The Tenant shall:-
26.1.1 within ten (10) Working Days (or sooner if necessary having
regard to the requirements of the notice or order in question
or the time limits stated in it) of receipt of any notice or
order or proposal for a notice or order given to the Tenant
and relevant to the Premises or any occupier of them by any
government department, local, public or other competent
authority or court of competent jurisdiction, provide the
Landlord with a true copy of it and any further particulars
required by the Landlord;
26.1.2 without delay, take all necessary steps to comply with the
notice or order so far as the same is the responsibility of
the Tenant; and
26.1.3 at the request of the Landlord but at the joint cost of the
Landlord and the Tenant, make or join with the Landlord in
making such objection, complaint, representation or appeal
against or in respect of any such notice, order or proposal as
the Landlord shall deem expedient.
26.2 PARTY WALL ETC. ▇▇▇ ▇▇▇▇
The Tenant shall:-
26.2.1 Forthwith after receipt by the Tenant of any notice served on
the Tenant under the Party Wall etc. ▇▇▇ ▇▇▇▇ provide the
Landlord with a true copy of it and of any further particulars
required by the Landlord;
26.2.2 At the request of the Landlord acting reasonably but at the
joint cost of Landlord and the Tenant make or join with the
Landlord in making such objection complaint representation and
in serving such counter notice against or in respect of any
such notice as the Landlord shall deem expedient;
46
26.2.3 At the request of the Landlord but at the joint cost of the
Landlord and the Tenant make or join with the Landlord in
serving any such notice on any adjoining owner under the Party
Wall etc. ▇▇▇ ▇▇▇▇ as the Landlord may from time to time
require.
27. FIRE PRECAUTIONS AND EQUIPMENT
27.1 COMPLIANCE WITH REQUIREMENTS
The Tenant shall comply with the requirements of the fire authority and
the insurers of the Premises and the reasonable requirements of the
Landlord in relation to fire precautions affecting the Premises.
27.2 FIRE FIGHTING APPLIANCES TO BE SUPPLIED
The Tenant shall keep the Premises equipped with such fire fighting
appliances as shall be required by any statute, the fire authority or
the insurers of the Premises, or as shall be reasonably required by the
Landlord and the Tenant shall keep such appliances open to inspection
and maintained to the reasonable satisfaction of the Landlord.
27.3 ACCESS TO BE KEPT CLEAR
The Tenant shall not obstruct the access to, or means of working, any
fire fighting appliances or the means of escape from the Premises in
case of fire or other emergency.
28. DEFECTIVE PREMISES
Immediately upon becoming aware of the same, the Tenant shall 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 so as to comply with any duty of care imposed
on the Landlord under the Defective Premises ▇▇▇ ▇▇▇▇, and shall
display and maintain in the Premises all notices which the Landlord
may, from time to time, reasonably require to be displayed in relation
to any such matters.
SECTION 8
INSURANCE
29. INSURANCE PROVISIONS
29.1 LANDLORD TO INSURE
The Landlord shall insure and keep insured with some publicly quoted
insurance company (or a subsidiary of a publicly quoted company) or
with Lloyds' underwriters and through such agency as the Landlord may,
from time to time, determine, (at economic market rates having regard
to all the circumstances) subject to such exclusions, excesses,
limitations, terms and conditions as may properly be contained in any
policy taken out by the Landlord having
47
regard to current market practice at the time and at reasonably
competitive cost having regard to the terms of the policy:-
29.1.1 the Premises (including plate glass) in their Full
Reinstatement Cost against loss or damage by the Insured
Risks;
29.1.2 the loss of the Principal Rent from time to time payable, or
reasonably estimated to be payable, under this Lease, taking
account of any review of the rent which may become due under
this Lease, for three (3) years;
29.1.3 explosion of any engineering and electrical plant and
machinery in the Premises to the extent that the same is not
covered by clause 29.1.1;
29.1.4 property owner's liability and such other insurances in
respect of the Premises as the Landlord may, from time to
time, properly deem necessary to effect.
29.2 WAIVER OF SUBROGATION
The Landlord shall use all reasonable endeavours to obtain from the
insurers of the Premises a waiver of the insurers' rights of
subrogation against the Tenant.
29.3 FULL REINSTATEMENT COST
In this clause, "FULL REINSTATEMENT COST" means the full cost of
reinstating the Premises at the time when such reinstatement is likely
to take place, having regard to any possible increases in building
costs, and including the cost of demolition, shoring up, site
clearance, ancillary expenses and architects', surveyors' and other
professional fees and any necessary Value Added Tax.
29.4 LANDLORD'S FIXTURES
The Tenant shall notify the Landlord in writing on request of the full
reinstatement cost of any fixtures and fittings installed at any time
by the Tenant and which may become landlord's fixtures and fittings for
the purpose of enabling the Landlord to effect adequate insurance cover
for them.
29.5 LANDLORD TO PRODUCE EVIDENCE OF INSURANCE
At the request of the Tenant, the Landlord shall produce to the Tenant
reasonable evidence from the insurers of the terms of the insurance
policy and the fact that the policy is subsisting and in effect.
48
29.6 INSURANCE VALUATIONS
The Tenant shall pay on demand the proper costs from time to time of
any insurance valuations carried out by the Landlord in respect of the
Premises at such periods as the Landlord may reasonably consider
appropriate (but not more often than once in any period of 3 years).
29.7 DAMAGE TO THE PREMISES
If the Premises or any part of them shall be damaged or destroyed by
any of the Insured Risks so as to render the Premises unfit for use and
occupation or inaccessible then:-
29.7.1 unless payment of the insurance moneys shall be refused wholly
or partly by reason of any act or default of the Tenant, any
undertenant or occupier of any part of the Premises or any of
their respective agents, licensees, visitors or contractors or
any person under the control of any of them; and
29.7.2 subject to the Landlord being able to obtain any necessary
planning permission and all other necessary licences,
approvals and consents, which the Landlord shall use
reasonable endeavours to obtain but shall not be obliged to
institute any appeals; and
29.7.3 subject to any necessary labour and materials being and
remaining available, which the Landlord shall use reasonable
endeavours to obtain as soon as practicable
the Landlord shall reinstate and rebuild the Premises or the part of
the Premises so damaged or destroyed substantially as it was prior to
any such damage or destruction (but not so as to provide accommodation
identical in layout if it would not be reasonably practical to do so).
49
29.8 WHERE REINSTATEMENT IS DELAYED OR PREVENTED
29.8.1 If the Premises or any part of them shall be damaged or destroyed by
any of the Insured Risks so as to render the Premises unfit for use and
occupation or inaccessible and the Landlord has not begun and is not
proceeding diligently to reinstate or rebuild the Premises or the part
of the Premises so damaged or destroyed two (2) years after the date of
such damage or destruction either party may at any time determine this
Lease by giving not less than one month's written notice to the other
party to expire on the expiry of the period of loss of rent insurance
whereupon the Landlord shall be released from any obligation to rebuild
or reinstate the Premises and shall be solely entitled to all the
insurance monies. Such determination shall be without prejudice to any
claim which the Landlord may have against the Tenant or any Guarantor
or which the Tenant may have against the Landlord for any previous
breach of covenant or sum previously accrued due.
29.8.2 If, for any reason whatsoever, the Landlord is prevented from
reinstating or rebuilding the Premises, having used all reasonable
endeavours to obtain all planning permissions, approvals and consents
necessary for such purpose, and the Landlord continues to be prevented
from reinstating or rebuilding for a period of three (3) years after
the date of the damage or destruction, the Landlord shall thereupon be
released from such obligation and shall be solely entitled to all the
insurance moneys. Unless this Lease has been terminated by frustration
in the meantime, either party may, at any time after the expiry of the
period of loss of rent insurance, determine this Lease by giving
written notice to the other but such determination shall be without
prejudice to any claim which the Landlord may have against the Tenant
or any Guarantor or which the Tenant may have against the Landlord for
any previous breach of covenant or sum previously accrued due.
29.9 PAYMENT OF INSURANCE MONEY REFUSED
If payment of any insurance money is properly refused as a result of
some act or default of the Tenant, any undertenant or occupier of any
part of the Premises or any of their respective agents, licensees,
visitors or contractors or any person under the control of any of them,
the Tenant shall pay to the Landlord, on written demand, the amount so
refused with interest on that amount at two per cent below the
Prescribed Rate from and including the date of such refusal to the date
of payment by the Tenant.
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29.10 SUSPENSION OF RENT PAYMENTS
If the Premises or any part of them shall be damaged or destroyed by
any of the Insured Risks so as to render the Premises unfit for use and
occupation or inaccessible, the Principal Rent or a fair proportion
thereof according to the nature and extent of the damage sustained,
shall not be payable until the Premises or the part damaged or
destroyed shall be again rendered fit for use and occupation and
accessible. Such suspension of rent shall be conditional upon the
insurance not having been vitiated or payment of the policy moneys
refused wholly or partly as a result of some act or default of the
Tenant, any undertenant or occupier of any part of the Premises or any
of their respective agents, licensees, visitors or contractors or any
person under the control of any of them. Any dispute regarding the
suspension of payment of the Principal Rent shall be referred to a
single arbitrator to be appointed, in default of agreement, upon the
application of either party, by the President in accordance with the
Arbitration ▇▇▇ ▇▇▇▇.
29.11 DOUBLE INSURANCE
If the Tenant shall become entitled to the benefit of any insurance
covering any part of the Insured Risks relating to the Premises which
is not effected or maintained in pursuance of the obligations contained
in this Lease, the Tenant shall apply any money received from such
insurance (in so far as it extends) in making good the loss or damage
in respect of which it shall have been received.
29.12 INSURANCE BECOMING VOID
The Tenant shall not do, or omit to do:-
29.12.1 anything which could cause any policy of insurance covering
the Premises to become wholly or partly void or voidable; or
29.12.2 anything whereby any abnormal or loaded premium may become
payable in respect of the policy, unless the Tenant has
previously notified the Landlord and agreed to pay the
increased premium
and, in any event, the Tenant shall pay to the Landlord on written
demand all expenses incurred by the Landlord in renewing any such
policy.
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29.13 REQUIREMENTS OF INSURERS
The Tenant shall, at all times, comply with any requirements of the
insurers of the Premises so far as the same are known by the Tenant.
29.14 NOTICE BY TENANT
The Tenant shall give notice to the Landlord immediately on the
happening of any event or thing which the Tenant reasonably believes
might affect any insurance policy relating to the Premises.
SECTION 9
DEFAULT OF TENANT AND RIGHTS OF RE-ENTRY
30. DEFAULT OF TENANT
30.1 RE-ENTRY
Without prejudice to any other right, remedy or power contained in this
Lease or otherwise available to the Landlord, on or at any time after
the happening of any of the events mentioned in clause 30.2, the
Landlord may re-enter the Premises or any part of them in the name of
the whole, and the Term shall then end, but without prejudice to any
claim which the Landlord may have against the Tenant or any Guarantor
for any previous breach of covenant or sum previously accrued due.
30.2 EVENTS OF DEFAULT
The events referred to in clause 30.1 are the following:-
30.2.1 if the Rents or any part of them shall be unpaid for ten (10)
Working Days after becoming payable (whether formally demanded
or not); or
30.2.2 if any of the covenants by the Tenant contained in this Lease
shall not be performed and observed; or
30.2.3 if the Tenant, for the time being, and/or the Guarantor (if
any) (being a body corporate):-
30.2.3.1 calls, or a nominee on its behalf calls, a meeting of
any of its creditors; or makes an application to the
Court under Section 425 of the Companies ▇▇▇ ▇▇▇▇; or
submits to any of its creditors a proposal under Part
I of the Insolvency ▇▇▇ ▇▇▇▇; or enters into any
arrangement, scheme,
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compromise, moratorium or composition with any of its
creditors (whether under Part I of the Insolvency ▇▇▇
▇▇▇▇ or otherwise); or
30.2.3.2 has an administrative receiver or a receiver or a
receiver and manager appointed in respect of the
Tenant's or the Guarantor's property or assets or any
part; or
30.2.3.3 resolves or the directors or shareholders resolve to
present a petition for an administration order in
respect of the Tenant or the Guarantor (as the case
may be); or an administrator is appointed; or
30.2.3.4 has a winding-up order made against it or a petition
for an administration order is presented against it
which is not withdrawn within 21 days; or passes a
winding-up resolution (other than a voluntary
winding-up whilst solvent for the purposes of an
amalgamation or reconstruction which has the prior
written approval of the Landlord such approval not to
be unreasonably withheld or delayed); or calls a
meeting of its creditors for the purposes of
considering a resolution that it be wound-up
voluntarily; or resolves to present its own
winding-up petition; or is wound-up (whether in
England or elsewhere); or has a liquidator or
provisional liquidator appointed; or
30.2.3.5 shall cease for any reason to maintain its corporate
existence; or is struck off the register of
companies; or otherwise ceases to exist; or
30.2.4 if the Tenant, for the time being, and/or the Guarantor (if
any) (being an individual, or if more than one individual,
then any one of them) makes an application to the Court for an
interim order under Part VIII of the Insolvency ▇▇▇ ▇▇▇▇; or
convenes a meeting of, or enters into any arrangement, scheme,
compromise, moratorium or composition with, any of his
creditors (whether under Part VIII of the Insolvency ▇▇▇ ▇▇▇▇
or otherwise); or has a bankruptcy petition presented against
him or is adjudged bankrupt (whether in England or elsewhere);
or has a receiver appointed in respect of the Tenant's or the
Guarantor's property or assets or any part; or
30.2.5 if analogous proceedings or events to those referred to in
this clause shall be instituted or occur in relation to the
Tenant, for the time being, and/or the Guarantor (if any)
elsewhere than in the United Kingdom; or
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30.2.6 if the Tenant, for the time being, and/or the Guarantor (if
any) suffers any distress or execution to be levied on the
Premises which is not discharged in full within twenty one
(21) days after the levy has been made; or becomes unable to
pay its debts as and when they fall due.
SECTION 10
MISCELLANEOUS
31. QUIET ENJOYMENT
The Landlord covenants with the Tenant that the Tenant, paying the
Rents and performing and observing the covenants on the part of the
Tenant contained in this Lease, shall and may peaceably hold and enjoy
the Premises during the Term without any interruption by the Landlord
or any person lawfully claiming through, under, or in trust for it.
32. EXCLUSION OF IMPLIED COVENANTS BY LANDLORD
Any covenants on the part of the Landlord which would otherwise be
implied by law are hereby expressly excluded.
33. RELETTING NOTICES
The Tenant shall permit the Landlord, at all reasonable times during
the last six (6) months of the Term, to enter the Premises and affix
and retain, without interference, on any suitable parts of them (but
not so as materially to affect the access of light or air to the
Premises) notices for reletting them and the Tenant shall not remove or
obscure such notices and shall permit all persons with the written
authority of the Landlord to view the Premises at all reasonable hours
in the daytime, upon prior appointment having been made.
34. DISCLOSURE OF INFORMATION
Upon making any application or request in connection with the Premises
or this Lease, or upon written request by the Landlord from time to
time, the Tenant shall disclose to the Landlord such information as the
Landlord may reasonably require and, whenever the Landlord shall
reasonably request, the Tenant shall supply full particulars of all
occupations and derivative interests in the Premises, however remote or
inferior.
35. INDEMNITY
The Tenant shall keep the Landlord fully indemnified from and against
all actions, proceedings, claims, demands, losses, costs, expenses,
damages and liability arising in any way directly or indirectly out
of:-
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35.1 any act, omission, neglect or default of the Tenant or any
persons in the Premises expressly or impliedly with the
Tenant's authority; or
35.2 any breach of any covenant by the Tenant contained in this
Lease.
36. REPRESENTATIONS
The Tenant acknowledges that this Lease has not been entered into in
reliance, wholly or partly, on any statement or representation made by,
or on behalf of, the Landlord, except any such statement or
representation that is expressly set out in this Lease or in written
replies to enquiries sent by the Landlord's Solicitors to the Tenant's
Solicitors prior to the date of this Lease.
37. EFFECT OF WAIVER
Each covenant by the Tenant shall remain in full force even though the
Landlord may have waived or released it temporarily or waived or
released (temporarily or permanently, revocably or irrevocably) a
similar covenant affecting other property belonging to the Landlord
38. NOTICES
38.1 NOTICES TO TENANT OR GUARANTOR
Any demand or notice required to be made, given to, or served on, the
Tenant or the Guarantor (if any) under this Lease shall be duly and
validly made, given or served if addressed to the Tenant or the
Guarantor respectively (and, if there shall be more than one of them,
then any one of them) and delivered personally, or sent by pre-paid
registered or recorded delivery mail, in the case of a company to its
registered office, or (whether a company or individual) its last known
address Provided that Seagate Technology Inc. hereby irrevocably
appoints Seagate Software Limited as its agent for the purposes of
service of any notices under the terms of this Lease to the intent that
any notice to be served upon Seagate Technology Inc. shall be validly
served if served in accordance with the terms of this Lease upon
Seagate Technology Inc. care of Seagate Software Limited Provided
always that copies of all such notices in contemplation of or in
connection with any proceedings under this Lease shall also be served
by pre-paid post or by fax on Seagate Technology Inc. at its registered
office.
38.2 NOTICES TO LANDLORD
Any notice required to be given to, or served on, the Landlord shall be
duly and validly given or served if sent by pre-paid registered or
recorded delivery mail, addressed to the Landlord at its registered
office.
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39. EXCLUSION OF STATUTORY COMPENSATION
Except where any statute prohibits or modifies the right of the Tenant
to compensation being reduced or excluded by agreement, neither the
Tenant nor any undertenant (whether immediate or not) shall be
entitled, on quitting the Premises or any part of them, to claim any
compensation from the Landlord under the Landlord and Tenant ▇▇▇ ▇▇▇▇.
40. GUARANTOR'S COVENANTS
In consideration of this Lease having been granted at its request, the
Guarantor covenants in the terms contained in Schedule 3.
41. NEW TENANCY
This Lease constitutes a new tenancy for the purposes of the Landlord
and Tenant (Covenants) ▇▇▇ ▇▇▇▇.
42. INVALIDITY OF CERTAIN PROVISIONS
If any term of this Lease or the application thereof to any person or
circumstances shall to any extent be invalid or unenforceable the same
shall be severable and the remainder of this Lease or the application
of such term to persons or circumstances other than those as to which
it is held invalid or unenforceable shall not be affected thereby and
each term and provision of this Lease shall be valid and be enforced to
the fullest extent permitted by law.
43. GOVERNING LAW AND JURISDICTION
43.1 GOVERNING LAW
This Lease is governed by and shall be construed in accordance with
English Law.
43.2 JURISDICTION
The courts of England shall have exclusive jurisdiction to hear and
determine any suit, action or proceedings, and to settle any disputes,
which may arise out of or in connection with this Lease and, for such
purposes, each party irrevocably submits to the jurisdiction of the
courts of England.
43.3 WAIVER OF OBJECTION TO LEX FORI
Each party irrevocably waives any objection which it might at any time
have to the courts of England being nominated as the forum to hear and
determine any proceedings and to settle any disputes which may arise
out of or in connection with this Lease and agrees not to claim that
the courts of England are not a convenient or appropriate forum.
56
44. It is hereby certified that there is no Agreement for Lease to which
this Lease gives effect.
IN WITNESS whereof this Deed has been executed by the parties and is intended to
be and is hereby delivered on the date first written above.
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SCHEDULE 1
EXCEPTIONS AND RESERVATIONS
The exceptions and reservations referred to in the documents contained
or referred to in the entries on the Registers of Title Number
BK321654
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SCHEDULE 2
USE RESTRICTIONS
1. DANGEROUS MATERIALS AND USE OF MACHINERY
The Tenant shall not:-
1.1 keep in the Premises any article or thing which is or may
become unusually combustible, dangerous, explosive,
inflammable, offensive or radio-active, or which might increase
the risk of fire or explosion other than reasonable quantities
of oil required for the operation of any boiler, plant,
machinery, equipment and apparatus which shall be stored in
accordance with the requirements of any statute affecting the
Premises and of any insurer of them;
1.2 keep or operate in the Premises any machinery which is unduly
noisy or causes vibration, or which is likely to annoy or
disturb any other tenant or occupier of any adjoining
property.
2. OVERLOADING FLOORS AND SERVICES
The Tenant shall not:-
2.1 overload the floors of the Premises nor suspend any excessive
weight from any ceiling, roof, stanchion, structure or wall
nor overload any Utility in or serving them;
2.2 do anything which may subject the Premises to any strain
beyond that which they are designed to bear (with due margin
for safety), and shall pay to the Landlord, on written demand,
any expense reasonably incurred by the Landlord in obtaining
the opinion of a qualified structural engineer as to whether
the structure of the Premises is being, or is about to be,
overloaded;
2.3 exceed the weight limits prescribed for any lift in the
Premises.
3. DISCHARGES INTO CONDUITS
The Tenant shall not discharge into any Conduit any oil or grease or
any noxious or deleterious effluent or substance which may cause an
obstruction or might be or become a source of danger, or which might
damage any Conduit or the drainage system of the Premises.
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4. DISPOSAL OF REFUSE
The Tenant shall not deposit in any part of the Premises any refuse,
rubbish or trade empties of any kind other than in proper receptacles
and as may be designated by the Landlord, and shall not burn any refuse
or rubbish on the Premises.
5. PROHIBITED USES
The Tenant shall not use the Premises for any public or political
meeting, or public exhibition or public entertainment, show or
spectacle; or for any dangerous, noisy, noxious or offensive business,
occupation or trade; or for any illegal or immoral purpose; or for
residential or sleeping purposes; or for betting, gambling, gaming or
wagering; or as a betting office; or as a club; or for the sale of any
beer, wines or spirits; or for any auction.
6. NUISANCE
The Tenant shall not:-
6.1 do anything in the Premises which may be or become a nuisance,
or which may cause annoyance, damage, disturbance or
inconvenience to, the Landlord or any owner or occupier of any
adjoining property, or which may be injurious to the amenity,
character, tone or value of the Premises;
6.2 play any musical instrument, or use any loudspeaker, radio,
tape recorder, record or compact disc player or similar
apparatus in such a manner as to be audible outside the
Premises;
6.3 place any goods on any open area of the Premises or expose
from any window of the Premises any articles, goods or things
of any kind.
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SCHEDULE 3
COVENANTS BY GUARANTOR
1. COVENANT AND INDEMNITY BY GUARANTOR
The Guarantor:-
1.1 covenants with the Landlord, as a primary obligation, that the
Present Tenant or the Guarantor shall, at all times during the
Term (including any continuation or renewal of this Lease),
duly perform and observe all the covenants on the part of the
Tenant contained in this Lease, including the payment of the
Rents and all other sums payable under this Lease in the
manner and at the times specified in this Lease;
1.2 indemnifies, as a primary obligation, the Landlord against all
claims, demands, losses, damages, liability, costs, fees and
expenses whatsoever sustained by the Landlord by reason of or
arising in any way directly or indirectly out of any default
by the Present Tenant in the performance and observance of any
of its obligations or the payment of any rent and other sums;
and
1.3 indemnifies, as a primary obligation, the Landlord against any
loss sustained by the Landlord as a result of any of the
obligations of the Present Tenant contained in this Lease
being or becoming void, voidable, unenforceable or ineffective
for any reason whatsoever and whether or not known to the
Landlord, the amount of such loss being the amount which the
Landlord would otherwise have been able to recover from the
Present Tenant.
2. GUARANTOR'S LIABILITY
The Guarantor further covenants with the Landlord, as a primary
obligation, that the Guarantor shall be liable (whether before or after
any disclaimer by a liquidator or trustee in bankruptcy) for the
fulfilment of all the obligations of the Present Tenant under this
Lease and agrees that the Landlord, in the enforcement of its rights
under this Lease, may proceed against the Guarantor as if the Guarantor
was named as the Tenant in this Lease.
3. WAIVER BY GUARANTOR
The Guarantor waives any right to require the Landlord to proceed
against the Present Tenant or to pursue any other remedy whatsoever
which may be available to the Landlord before proceeding against the
Guarantor.
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4. POSTPONEMENT OF CLAIMS BY GUARANTOR AGAINST TENANT
The Guarantor further covenants with the Landlord that the Guarantor
shall:-
4.1 not claim in any liquidation, bankruptcy, composition or
arrangement of the Present Tenant in competition with the
Landlord and shall remit to the Landlord the proceeds of all
judgments and all distributions it may receive from any
liquidator, trustee in bankruptcy or supervisor of the Present
Tenant;
4.2 hold for the benefit of the Landlord all security and rights
the Guarantor may have over assets of the Present Tenant
whilst any liabilities of the Present Tenant or the Guarantor
to the Landlord remain outstanding; and
4.3 not exercise any right or remedy in respect of any amount paid
or any liability incurred by the Guarantor in performing or
discharging its obligations contained in this Schedule, or
claim any contribution from any other guarantor.
5. POSTPONEMENT OF PARTICIPATION BY GUARANTOR IN SECURITY
The Guarantor shall not be entitled to participate in any security held
by the Landlord in respect of the Tenant's obligations to the Landlord
under this Lease or to stand in the place of the Landlord in respect of
any such security until all the obligations of the Present Tenant or
the Guarantor to the Landlord under this Lease have been performed or
discharged.
6. NO RELEASE OF GUARANTOR
None of the following, or any combination of them, shall release,
determine, discharge or in any way lessen or affect the liability of
the Guarantor as principal obligor under this Lease or otherwise
prejudice or affect the right of the Landlord to recover from the
Guarantor to the full extent of this guarantee:-
6.1 any neglect, delay or forbearance of the Landlord in
endeavouring to obtain payment of the Rents or the amounts
required to be paid by the Tenant or in enforcing the
performance or observance of any of the obligations of the
Tenant under this Lease;
6.2 any refusal by the Landlord to accept rent tendered by or on
behalf of the Tenant 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;
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6.3 any extension of time given by the Landlord to the Tenant;
6.4 any variation of the terms of this Lease (including any reviews
of the rent payable under this Lease) or the transfer of the
Landlord's reversion or the assignment of this Lease;
6.5 any change in the constitution, structure or powers of either
the Tenant, the Guarantor or the Landlord or the liquidation,
administration or bankruptcy (as the case may be) of either the
Tenant or the Guarantor;
6.6 any legal limitation, or any immunity, disability or incapacity
of the Tenant (whether or not known to the Landlord) or the
fact that any dealings with the Landlord by the Tenant may be
outside, or in excess of, the powers of the Tenant;
6.7 any other act, omission, matter or thing whatsoever as a result
of which, but for this provision, the Guarantor would be
exonerated either wholly or partly (other than a release
executed and delivered as a deed by the Landlord).
7. DISCLAIMER OR FORFEITURE OF LEASE
The Guarantor further covenants with the Landlord that:-
7.1 if a liquidator or trustee in bankruptcy shall disclaim or
surrender this Lease; or
7.2 if this Lease shall be forfeited; or
7.3 if the Present Tenant shall cease to exist
the Guarantor shall, if the Landlord by notice in writing given to the
Guarantor within six (6) months after such disclaimer or other event so
requires, join with the Landlord in applying to the Court for an order
authorising an agreement excluding the provisions of Sections 24 to 28
(inclusive) of the Landlord and ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ (as amended by Section
5 of the Law of Property Act 1969) in relation to the new lease of the
Premises hereinafter mentioned and upon the making of such order accept
from, and execute and deliver to, the Landlord a counterpart of a new
lease of the Premises for a term commencing on the date of the
disclaimer or other event and continuing for the residue then remaining
unexpired of the Term, such new lease to be at the cost of the
Guarantor and to be at the same Rents and subject to the same covenants
and provisions as are contained in this Lease.
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8. GUARANTOR TO PAY SUM EQUAL TO RENTS
If the Landlord shall not require the Guarantor to take a new lease
pursuant to paragraph 7, the Guarantor shall nevertheless upon demand
pay to the Landlord a sum equal to the Rents and other sums that would
have been payable under this Lease but for the disclaimer or other
event in respect of the period from and including the date of such
disclaimer or other event until the expiration of six (6) months from
such date or until the Landlord shall have granted a lease of the
Premises to a third party (whichever shall occur first).
9. BENEFIT OF GUARANTEE
This guarantee shall enure for the benefit of the successors and
assigns of the Landlord under this Lease without the necessity for any
assignment.
10. GUARANTOR TO JOIN IN AUTHORISED GUARANTEE AGREEMENT
The Guarantor covenants with the Landlord, and as a separate covenant
with the Present Tenant, that the Guarantor will join in, and execute
and deliver to the Landlord, any deed which the Present Tenant is
required to execute and deliver to the Landlord pursuant to clause
20.3(i), so as to give the covenants on the part of the Guarantor
contained in that deed.
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SCHEDULE 4
AUTHORISED GUARANTEE AGREEMENT TO BE GIVEN BY TENANT
PURSUANT TO CLAUSE 20.3(i)
T H I S D E E D is made the day of ▇▇
▇ ▇ ▇ ▇ ▇ ▇ N:-
(1) [ ] whose registered office is at [ ] (registered number:
) (the "PRESENT TENANT") [and]
(2) [ ] whose registered office is at [ ] (registered number:
) (the "LANDLORD") [and]
[(3) [ ] whose registered office is at [ ] (registered number:
) (the "GUARANTOR")]]
W H E R E A S:-
(A) This Agreement is made pursuant to the lease dated [ ] and made
between [ ] (the "LEASE") which expression shall include (where
the context so admits) all deeds and documents supplemental to it
(whether expressed to be so or not) relating to the premises at
[ ] (the "PREMISES").
(B) The Present Tenant holds the Premises under the Lease and wishes to
assign the Lease to [ ] (the "ASSIGNEE"), and pursuant to the
Lease the Landlord's consent is required to such assignment (the
"ASSIGNMENT") and such consent is given subject to a condition that the
Present Tenant to enter into a deed in the form of this Deed.
NOW THIS DEED WITNESSES as follows:-
1. AUTHORISED GUARANTEE
Pursuant to the condition referred to above, the Present Tenant
covenants with the Landlord, as a primary obligation, that the Assignee
or the Present Tenant shall, at all times during the period (the
"GUARANTEE PERIOD") from the completion of the Assignment until the
Assignee
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shall have ceased to be bound by the TENANT COVENANTS (which in this
Deed shall have the meaning attributed by section 28(1) of the Landlord
and Tenant (Covenants) ▇▇▇ ▇▇▇▇ (the "1995 ACT")) contained in the
Lease (including the payment of the rents and all other sums payable
under the Lease in the manner and at the times specified in the Lease),
duly perform and observe the tenant covenants.
2. PRESENT TENANT'S LIABILITY
2.1 The Present Tenant agrees that the Landlord, in the enforcement of its
rights under this Deed, may proceed against the Present Tenant as if
the Present Tenant were the sole or principal debtor in respect of the
tenant covenant in question.
2.2 For the avoidance of doubt, notwithstanding the termination of the
Guarantee Period the Present Tenant shall remain liable under this Deed
in respect of any liabilities which may have accrued prior to such
termination.
2.3 For the avoidance of doubt the Present Tenant shall be liable under
this Deed for any costs and expenses incurred by the Landlord in
enforcing the Present Tenant's obligations under this Deed.
3. DISCLAIMER OF LEASE
The Present Tenant further covenants with the Landlord that if the
Crown or a liquidator or trustee in bankruptcy shall disclaim the Lease
during the Guarantee Period the Present Tenant shall, if the Landlord
by notice in writing given to the Present Tenant within six (6) months
after such disclaimer, accept from, and execute and deliver to, the
Landlord a counterpart of a new lease of the Premises for a term
commencing on the date of the disclaimer and continuing for the residue
then remaining unexpired of the term of the Lease, such new lease to be
at the same rents and subject to the same covenants and provisions as
are contained in the Lease.
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4. SUPPLEMENTARY PROVISIONS
By way of provision incidental or supplementary to clauses 1, 2 and 3
of this Deed:-
4.1 POSTPONEMENT OF CLAIMS BY PRESENT TENANT
The Present Tenant further covenants with the Landlord that the Present
Tenant shall:-
4.1.1 not claim in any liquidation, bankruptcy, composition or
arrangement of the Assignee in competition with the Landlord
and shall remit to the Landlord the proceeds of all judgments
and all distributions it may receive from any liquidator,
trustee in bankruptcy or supervisor of the Assignee;
4.1.2 hold for the benefit of the Landlord all security and rights
the Present Tenant may have over assets of the Assignee whilst
any liabilities of the Present Tenant or the Assignee to the
Landlord remain outstanding; and
4.1.3 not exercise any right or remedy in respect of any amount paid
or any liability incurred by the Present Tenant in performing
or discharging its obligations contained in this Deed, or
claim any contribution from any other guarantor.
4.2 POSTPONEMENT OF PARTICIPATION BY PRESENT TENANT IN SECURITY
The Present Tenant shall not be entitled to participate in any security
held by the Landlord in respect of the Assignee's obligations to the
Landlord under the Lease or to stand in the place of the Landlord in
respect of any such security until all the obligations of the Present
Tenant or the Assignee to the Landlord under the Lease have been
performed or discharged.
4.3 NO RELEASE OF PRESENT TENANT
None of the following, or any combination of them, shall release,
determine, discharge or in any way lessen or affect the liability of
the Present Tenant as principal obligor under this Deed or otherwise
prejudice or affect the right of the Landlord to recover from the
Present Tenant to the full extent of this guarantee:-
4.3.1 any neglect, delay or forbearance of the Landlord in
endeavouring to obtain payment of any rents or other amounts
required to be paid by the Assignee or in enforcing the
performance or observance of any of the obligations of the
Assignee under the Lease;
4.3.2 any refusal by the Landlord to accept rent tendered by or on
behalf of the Assignee
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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;
4.3.3 any extension of time given by the Landlord to the Assignee;
4.3.4 any reviews of the rent payable under the Lease and (subject
to Section 18 of the ▇▇▇▇ ▇▇▇) any variation of the terms of
the Lease or the transfer of the Landlord's reversion;
4.3.5 any change in the constitution, structure or powers of either
the Present Tenant, the Assignee or the Landlord or the
liquidation, administration or bankruptcy (as the case may be)
of either the Present Tenant or the Assignee;
4.3.6 any legal limitation, or any immunity, disability or
incapacity of the Assignee (whether or not known to the
Landlord) or the fact that any dealings with the Landlord by
the Assignee may be outside, or in excess of, the powers of
the Assignee;
4.3.7 any other deed, act, omission, failure, matter or thing
whatsoever as a result of which, but for this provision, the
Present Tenant would be exonerated either wholly or partly
(other than a release executed and delivered as a deed by the
Landlord or a release effected by virtue of the 1995 Act).
4.4 COSTS OF NEW LEASE
The Landlord's reasonable costs in connection with any new lease
granted pursuant to clause 3 of this Deed shall be borne by the Present
Tenant and paid to the Landlord (together with Value Added Tax) upon
completion of such new lease.
4.5 GUARANTOR TO JOIN IN NEW LEASE
If the Present Tenant shall be required to take up a new lease pursuant
to clause 3 of this Deed, the Guarantor shall join in, and execute and
deliver to the Landlord a counterpart of, such new lease in order to
guarantee the obligations of the Present Tenant under it in the terms
of Schedule 3 to the Lease.
I N W I T N E S S whereof this deed has been executed by the Present
Tenant and is intended to be and is hereby delivered on the date first
above written.
68
SCHEDULE 5
DRAFT DEED OF RELEASE
DATED 199
(1) Landlord:
(2) Tenant:
SEAGATE SOFTWARE LIMITED
(3) Guarantor:
SEAGATE TECHNOLOGY INC
[(or in the circumstances referred to in clause 21.5
of the Lease) SEAGATE SOFTWARE INC]
-----------------------------------------
DEED OF RELEASE
relating to
Aquis House
▇▇▇▇▇▇▇▇ Street
Reading
-----------------------------------------
▇▇▇▇▇▇▇▇ CHANCE
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Telephone: ▇▇▇▇-▇▇▇ ▇▇▇▇
Fax: ▇▇▇▇-▇▇▇ ▇▇▇▇
Telex: 887847 LEGIS G
Ref: GP/U167/10080/ICSM
69
DEED OF RELEASE
PARTICULARS
--------------------------------------------------------------------------------
DATE : 1998
--------------------------------------------------------------------------------
PARTIES
(1) Landlord :
(Company Registration No. )
(2) Tenant : SEAGATE SOFTWARE LIMITED whose
registered office is at ▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇
(Company Registration No. 2575013)
(3) Guarantor : SEAGATE TECHNOLOGY INC of
[ ]
[(or in the circumstances referred
to in clause 21.5 of the Lease)
SEAGATE SOFTWARE INC.]
------------------------------------------------------------------
LEASE
Date : 1998
Parties : Universities Superannuation Scheme
Limited (1)
Seagate Software Limited (2)
Seagate Technology Inc (3)
Term: : 15 years from 24 June 1998
Demised Premises : ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
-------------------------------------------------------------------
70
1. RELEASE OF OBLIGATIONS
In accordance with [21.1(a)] [clause 21.1(b)] [clause 21.5(a)] [clause
21.5(b)] of the Lease referred to in the foregoing Particulars (the
"Lease") the Landlord and the Guarantor named in the Particulars hereby
release each other from all of the obligations on their respective parts
contained in or arising out of the Lease but without prejudice to the
rights of either the Landlord or the Guarantor in respect of any breach
of the terms of the Lease prior to the date of this Deed.
IN WITNESS of which this Deed has been executed by the parties hereto, and is
intended to be and is hereby delivered on the date first before written.
71
SCHEDULE 6
DRAFT LICENCE TO ASSIGN AND DEED OF RELEASE
DATED 1998
(1) Landlord:
(2) Tenant:
SEAGATE SOFTWARE
LIMITED AND
[ ]
(3) Assignee:
SEAGATE SOFTWARE
LIMITED [AND ]
(4) Guarantor: SEAGATE TECHNOLOGY INC. [(or in
the circumstances referred to in clause 21.5
of the Lease) SEAGATE SOFTWARE INC.]
----------------------------------
LICENCE TO ASSIGN
AND
DEED OF RELEASE
relating to
▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇▇▇ CHANCE
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Telephone: ▇▇▇▇-▇▇▇ ▇▇▇▇
Fax: ▇▇▇▇-▇▇▇ ▇▇▇▇
Telex: 887847 LEGIS G
Ref: GP/U167/10080/ICSM
72
LICENCE TO ASSIGN AND DEED OF RELEASE
PARTICULARS
--------------------------------------------------------------------------------
DATE : 1998
--------------------------------------------------------------------------------
PARTIES
(1) Landlord :
(Company Registration No. )
(2) Tenant : SEAGATE SOFTWARE LIMITED
whose registered office is at ▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇
(Company Registration No. 2575013)
[and ]
(3) Assignee : SEAGATE SOFTWARE LIMITED
whose registered office is at ▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇
(Company Registration No. 2575013)
[and
(4) Guarantor : SEAGATE TECHNOLOGY INC of
[ ]
[(or in the circumstances referred
to in clause 21.5 of the Lease)
SEAGATE SOFTWARE INC.]
-------------------------------------------------------------------
LEASE
Date : 1998
Parties : Universities Superannuation Scheme
Limited (1)
Seagate Software Limited (2)
and Seagate Technology Inc (3)
73
Term: : 15 years from 24 June 1998
Demised Premises : ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
--------------------------------------------------------------------
74
1. DEFINITIONS
In this Licence, unless the context otherwise requires:-
"ASSIGNEE" means the party named as Assignee in the Particulars, and
includes any successor in title or assign of such party and, in the
case of an individual, any personal representative of such individual;
"DEMISED PREMISES" means the premises demised by the Lease and as
briefly described in the Particulars;
"GUARANTOR" means the party named as Guarantor in the Particulars;
"LANDLORD" means the party named as Landlord in the Particulars, and
includes any person for the time being entitled to such party's
reversionary interest in the Demised Premises;
"LEASE" means the Lease the details of which are set out in the
Particulars, and includes any instrument supplemental thereto;
"PARTICULARS" means the matters appearing on the preceding page(s)
headed "Particulars";
"TENANT" means the party named as Tenant in the Particulars;
"TERM" means the term of years created by the Lease, and includes the
period of any holding over or any continuation thereof (whether by
statute or common law).
2. INTERPRETATION
2.1 The headings used in this Licence do not affect its construction.
2.2 This Licence is supplemental to the Lease.
2.3 In this Licence, unless the context otherwise requires:-
(a) Any covenant by a party comprising more than one person is
joint and several; and
(b) Any word importing an individual includes a company and vice
versa.
75
2.4 Any covenant by the Assignee shall be construed as being not only with
the Landlord but also with any superior landlord.
3. TITLE TO DEMISED PREMISES
3.1 The Landlord is entitled to the immediate reversionary interest in the
Demised Premises.
3.2 The Tenant is entitled to the Demised Premises for the residue of the
Term.
4. CONSENT TO ASSIGNMENT
The Landlord consents to the assignment by the Tenant to the Assignee
of the Demised Premises for the residue of the Term.
5. RESTRICTION ON CONSENT
The consent granted by this Licence is restricted to the particular
assignment authorised, and does not authorise any further or other
variation of the terms of the Lease, which otherwise remains in full
force and effect.
6. RELEASE OF OBLIGATIONS
Subject to Clause 7 of this Licence, and in accordance with clause 21.
[ ] of the Lease, the Landlord and [Seagate Technology Inc.] [Seagate
Software Inc.] hereby release each other as from the date on which the
Lease is assigned to the Assignee from all obligations on their
respective parts contained in or arising out of the Lease but without
prejudice to the rights of either party in respect of any breach of the
terms of the Lease prior to the date on which the Lease is assigned to
the Assignee.
7. COMPLETION OF ASSIGNMENT
If the assignment authorised by this Licence is not completed within
the period of three months commencing on the date hereof, then, unless
the Landlord (in the Landlord's absolute discretion) extends such
period, the consent given by this Licence will become void and clause 6
of this Licence shall not take effect.
8. INVALIDITY OF CERTAIN PROVISIONS
If any term of this Licence or the application thereof to any person or
circumstances shall to any extent be invalid or unenforceable the same
shall be severable and the remainder of this Licence or the application
of such term to persons or circumstances other than those as to which
it is held invalid or unenforceable shall not be affected thereby and
each term and provision of this Licence shall be valid and be enforced
to the fullest extent permitted by law.
76
IN WITNESS of which this Licence has been executed by the Landlord, the
Assignee and the Guarantor, and is intended to be and is hereby
delivered on the date first before written.
77
THE COMMON SEAL of )
UNIVERSITIES SUPERANNUATION )
SCHEME LIMITED was affixed )
in the presence of:- )
__________________________________ Signature of director
__________________________________ Name of director
__________________________________ Signature of director/secretary
__________________________________ Name of director/secretary
78
THE COMMON SEAL of )
SEAGATE SOFTWARE LIMITED )
was affixed in the presence of:- )
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ Signature of director
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ Name of director
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Signature of director/secretary
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name of director/secretary
THE COMMON SEAL of )
SEAGATE TECHNOLOGY INC )
was affixed in the presence of:- )
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ Signature of director
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ Name of director
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Signature of director/secretary
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name of director/secretary