▇▇▇▇▇▇ INVESTMENT FUND LIMITED (1)
A.C. CAR GROUP LIMITED
LEASE
- of -
Land at ▇▇▇▇ ▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
+
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
THIS LEASE made the day of
One Thousand Nine Hundred and Ninety Seven
BETWEEN:
(1) ▇▇▇▇▇▇ INVESTMENT FUND LIMITED whose registered office is at ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇ ▇▇▇ (hereinafter called
"Landlord" which expression shall include the person from time to time entitled
to the reversion expectant on the term hereby granted)
(2) A.C. CAR GROUP LIMITED whose registered office is at Pride House,
Watford Metro Centre, Tolpitts Lane, Watford, Hertfordshire WDI 3SB (hereinafter
called "Tenant" which expression shall include the person from time to time
entitled to the term hereby granted)
WITNESSETH as follows:
I. INTERPRETATION
In this Lease:
1.1 The following expressions have unless the context otherwise requires
the following meanings and cognate expressions are to be construed accordingly:
"Accessway"
means the accessway shown coloured ▇▇▇▇▇ on the Plan;
"Conducting Media"
means sewers drains pipes wires cables ventilation ducts heating ducts and
other conducting media including any fixings louvres cowls and other covers and
includes any apparatus (not being tenant's or trade fixtures (including the
Tenant's Fixtures)) connected to any Conducting
Media for enabling use to be made of the Conducting Media or of any water
gas electricity heating ventilation air conditioning or other effluvia passing
through Conducting Media;
"Demised Premises"
means the building and premises as described in Part I of Schedule I and all
additions and alterations thereto and all Landlord's Fixtures from time to time
annexed thereto but excluding the air space surrounding and above the same;
"Development Charge"
means all sums payable by the Landlord as Service Charge (as that
expression is defined in the Oakimber Transfers) pursuant to the Oakimber
Transfers in relation to the Demised Premises and due from the date hereof;
"Estate"
means the land and building of which the Demised Premises form part being
the land registered at HM Land Registry under title numbers SY579222 and
SY579223 and shown for the purpose of identification only edged blue on the
Plan;
"Full Reinstatement Cost"
means the costs (to be conclusively determined from time to time by the
Landlord's Surveyor) which would be likely to be incurred in rebuilding or
reinstating the Estate in accordance with the requirements of this Lease
(including the reasonable and proper cost of shoring up demolition site
clearance any works that may be required by statute
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professional fees payable upon any applications for planning permission or
other consents and other incidental expenses) at the time when such rebuilding
or reinstatement is likely to take place;
"Insured Risks"
means the risk of loss damage or destruction by fire lightning storm
tempest flood explosion earthquake (fire and shock) subsidence heave and
landslip impact from vehicles aircraft and articles dropped therefrom riot civil
commotion malicious damage bursting or overflowing of water tanks apparatus or
pipes and such other risks as the Landlord may from time to time in its
reasonable discretion insure against pursuant to the Landlord's covenant in that
behalf hereinafter contained but excepting any stated or other risk against
which insurance cannot ordinarily be obtained at a reasonable and economic
premium with insurers of repute in the United Kingdom for a property such as the
Estate unless the Landlord has in fact insured and continues to insure against
such risk;
"Irrevocable VAT"
means VAT incurred by the Landlord to the extent that the Landlord is
unable to obtain credit for or recover the same;
"Landlord 's Expenses"
means the reasonable and proper expenses incurred by the Landlord as set
out in Part 1 of Schedule 3;
"Landlord's Fixtures"
means all Landlord's fixtures and fittings in the Demised Premises but for
the avoidance of doubt excluding the Tenant's Fixtures;
"Landlord's Surveyor
means such firm of surveyors or surveyor (who may be an employee or officer
of the Landlord) as the Landlord may from time to time appoint;
"Landlord's Third Party Liability Insurance"
means insurance against all liabilities of the Landlord to third parties
arising out of or in connection with any matter including or relating to the
Estate on such terms and in such amount as the Landlord shall reasonably from
time to time determine as expedient or necessary;
"Legislation"
means all present and future Acts of Parliament all directly applicable
provisions of all present and future treaties constituting the European
Communities and all order regulations bye-laws and directives made pursuant to
any Act of Parliament or otherwise having the force of law including any made
pursuant to such treaties which have the force of law in United Kingdom
"Loss of Rent Insurance
means insurance against loss of the rent first reserved by Clause 2 hereof
for the time being payable for such period (13eing not less than three years) as
the Landlord shall from time to time deem to be necessary for the purpose of
rebuilding or
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reinstating the Demised Premises having regard to any likely increase as a
result of such rent being reviewed under this Lease;
"Oakimber Transfers"
means the transfer dated 27th October 1987 made between (1) Oakimber
Limited (2) Trafalgar Brookmount Limited (3) Autokraft Limited (4) Trafalgar
House Developments Holding Limited (as varied by a Deed of Variation dated 18th
January 1991 made between (I) Oakimber Limited (2) Autokraft Limited and (3)
Ford Motor Company Limited) and a transfer dated 27th October 1987 made between
(I) Oakimber Limited (2) Trafalgar Brookmount Limited (3) AC Cars Limited and
(4) Trafalgar House Developments Holdings Limited (as varied by a Deed of
Variation dated 18th January 1991 and made between (1) Oakimber Limited (2) AC
Cars Limited and (3) Ford Motor Company Limited;
"Permitted Use"
means automotive vehicle and component assembly and manufacture with
ancillary storage and offices or any use or uses within Classes Bi and/or B8 of
the Town and Country Planning Use Classes) Order 1987, or such other use as
shall be approved by the Landlord (such approval not to be unreasonably withheld
or delayed);
"Plan"
means the plan or plans annexed to this Lease;
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"Planning Acts"
means the Town and Country Planning ▇▇▇ ▇▇▇▇ the Planning (Listed Buildings
and Conversation Areas) ▇▇▇ ▇▇▇▇ the Planning (Listed Buildings and Conservation
Areas) ▇▇▇ ▇▇▇▇ the Planning (Hazardous Substances) ▇▇▇ ▇▇▇▇ the Planning
miscellaneous Provisions Act) 1990 and the Planning and Compensation ▇▇▇ ▇▇▇▇
and all over legislation from time to time in force relating to Town and Country
Planning;
"Perpetuity Period"
means the period of 80 years starting on the date of this Lease which shall
be the perpetuity period of this Lease;
"Prescribed Rate"
means interest of a rate of 4 per cent above the base rate from time to
time of Lloyds Bank plc or of such Bank being a member of the Committee of
London and Scottish Bankers) as the Landlord may from time to time nominate or
during any time when Lloyds Bank plc or other bank nominated by the Landlord has
no such base rate such other rate as shall replace the same or be the nearest
equivalent thereto as may be notified from time to time to the Tenant by the
Landlord;
"Rent Commencement Date"
means
"the Service Charge" and "Interim Service Charge"
means the charges to the Tenant in respect of the Landlord's Expenses as
set out in Part II of Schedule 3;
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"Tenant's Fixtures"
means the fixtures and fittings in the Demised Premises listed in Schedule
6;
"VAT"
means Value Added Tax or any similar tax from time to time payable whether
in substitution for or addition to Value Added Tax;
"Yearly Rent"
means the annual rent of(pound)221,500.00 (or such higher rent as shall be
determined pursuant to the provisions in Schedule 2 and so in proportion for any
period less than a year;
1.2 Where the context so admits or requires words importing one gender
shall be construed as importing any other gender and the singular includes the
plural and vice versa and where any party hereto) comprises two or more persons
any obligation on the part of that party contained or implied herein shall be
deemed to be joint and several obligations on the part of such person
1.3 Any Index and headings are for reference only and shall not affect the
meaning of this document
1.4 References to the "Demised Premises in the absence of any provision to
the contrary include any part thereof
1.5 Except in the definition of "Permitted Use" reference to a specific
statute or provision of a specific statute includes all regulations and orders
from time to time made pursuant to that statute or (as the case may be)
provision or any statute or provision amending or replacing the same
1.6 Any covenant by or regulation requiring the Tenant not to do an act or
thing shall be deemed to include an obligation on the part of the Tenant to
ensure that any such act or thing is not done by any third party
1.7 Whenever the consent or approval of the Landlord is required or
requested in relation to this Lease, such provisions shall be construed as also
requiring the consent or approval of any mortgagee of the Landlord and any
superior lessor where the same shall be required except that nothing in
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this Lease shall be construed as implying that any obligation is imposed upon
any mortgagee or superior lessor not unreasonable to refuse any consent
1.8 References to any right of the Landlord to enter or to have access to
the Demised Premises shall be construed as extending to any superior lessor or
mortgagee for the time being and to all persons authorized by the Landlord aid
to any such superior lessor or mortgagee
1.9 Unless the context otherwise requires references to "the tenancy" and
"the term" shall be deemed to be the references both to the term of years hereby
demised and to any extension or continuation thereof whether by the provisions
of the Landlord and ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ or any similar legislation from time to time
in force or otherwise which tenancy shall be deemed to have commenced on the
date of commencement of the said term hereinafter stipulated
1.10 The expression "termination in relation to the tenancy means
termination in any manner whether by effluxion of time notice forfeiture
surrender or otherwise and the expression "terminating" bears a corresponding
meaning 2. DEMISE TERM RENT
The Landlord hereby demises unto the Tenant ALL THOSE the Demised Premises
TOGETHER WITH the rights described in Part II of Schedule 1 EXCEPTING AND
RESERVING unto the Landlord and its predecessors in title and those deriving
title from the Landlord or such predecessors the rights described in Part Ill of
Schedule 1 TO HOLD the same unto the Tenant SUBJECT to the matters described in
Part W of Schedule 1 for the term of Fifteen Years commencing on the date hereof
YIELDING AND PAYING therefor the following rents:
2.1 First throughout the term the Yearly Rent which Yearly Rent shall be
paid by equal quarterly installments in advance on the usual quarter days in any
year the first installment thereof or a proportionate part in respect of the
period commencing on the Rent Commencement Date and ending on
8
the date immediately prior to the next succeeding quarter day shall be paid
on the execution hereof
2.2 Secondly on demand by way of further or additional rent a sum equal to
a reasonable proportion of (1) the premium or premiums incurred by the Landlord
in (a) insuring and keeping insured the Estate in the Full Reinstatement Cost
against the occurrence of any of the Insured Risks and all professional and
other fees and charges in relation to the rebuilding or reinstatement thereof
(1)) insuring in respect of the Loss of Rent Insurance (c) insuring in respect
of the Landlord's Third Party Liability insurance and (d) insuring against such
other risks expenses and liabilities relating to the Estate and/or the
occupation thereof and in such sums as the Landlord may reasonably and properly
require and (2) the reasonable cost of the valuations of the Estate not more
often than once in any calendar year for the purpose of such insurance AND
together with any increased or additional premium payable by reason of any act
or omission of the Tenant or any of the Tenants servants agents or licensees or
persons deriving title under the Tenant or by reason of the user of the Demised
Premises
2.3 Thirdly by way of further rent the Interim Charge and the Service
Charge relating to the Landlord's Expenses at the times and in the manner
provided in Part II of Schedule 3 hereto
2.4 Fourthly any VAT payable on the Yearly Rent, the Insurance Rent or
other Taxable supplies by the Landlord to the Tenant hereunder
2.5 Fifthly all and any other sums payable by the Tenant to the Landlord
pursuant to the provisions of this Lease
3. TENANT'S COVENANTS
The Tenant hereby covenants with the Landlord:-
3.1 RENT AND OTHER PAYMENTS
3.1.1 To pay the rents hereby reserved on the days and in the manner
aforesaid and not to exercise or seek to exercise any right or claim to withhold
rent or other sums payable under this Lease or any right or claim to be entitled
to any legal or equitable set-off
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3.1.2 If so required in writing by the Landlord to make such payments by
bankers order or other direct credit transfer to any bank and account in the
United Kingdom that the Landlord may from time to time nominate
3.2 OUJGOINGS
3.2.1 To pay and indemnify the Landlord against all rates taxes (including
community charges) levies duties charges assessments impositions and outgoings
whether of an existing or novel kind now or at any time hereafter during the
term levied imposed or charged exclusively in respect of the Demised Premises or
any part thereof or the owner or occupier in respect of the Demised Premises
(other than income tax and corporation tax on the income of the Demised Premises
received by the Landlord and any tax payable by the Landlord in respect of any
dealing with any reversion to this Lease) and a fair proportion (as determined
by the Landlord's Surveyor) of any such rates taxes assessments impositions and
outgoings levied imposed or charged on the Demised Premises in common with other
premises
3.2.2 To pay to the suppliers of and to indemnify the Landlord against all
charges for electricity gas telephone water and other services consumed or used
at or in relation to the Demised Premises (including all standing charges and
meter rents)
3.2.3 To pay to the Vendor (as defined in the Oakimber Transfers) and/or
indemnify the Landlord against the Development Charge in so far as it relates to
the Demised Premises within 10 days of being notified of the sum due
3.3 REPAIR AND DECORATION
3.3.1 Well and substantially to repair and reinstate the Demised Premises
and keep them in good and substantial repair and condition and to carry out such
repair and reinstatement with best quality materials and to the best standard of
workmanship and to the complete satisfaction of the Landlord and if necessary
from time to time to reinstate or rebuild the Demised Premises (damage or
destruction due to any of the Insured Risks excepted unless any of the insurance
money in respect thereof shall have been rendered irrecoverable by any act
default or omission of the Tenant or any person
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deriving title from the Tenant or any servant agent licensee or invitee of the
Tenant or any such person) and to repay to the Landlord on demand all expenses
from time to time incurred by the Landlord in repairing or reinstating any
Conducting Media not comprised in the Demised Premises but which serve only the
Demised Premises
3.3.2 Without prejudice to the generality of the Tenant's obligations under
the immediately preceding sub-clause to keep all machinery and equipment forming
part of the Demised Premises properly maintained and in good working order and
for that purpose to employ reputable contractors to be approved in writing by
the Landlord (such approval not to be unreasonably withheld) for the regular
periodic inspection and maintenance of them and to renew all working and other
parts of such machinery and equipment as and when necessary or when recommended
by such contractors and from time to time to replace all Landlord's Fixtures
fittings and appurtenances in or about the Demised Premises which become worn
out or beyond repair at any time during or at the termination of the term
3.3.3 In a proper and workmanlike manner to prepare and paint with two
coats of good quality paint or to treat with a suitable alternative preservative
of equivalent efficacy previously approved in writing by the Landlord all the
wood metal and other parts of the Demised Premises previously or usually so
painted or treated and in like manner with good quality materials to grain
varnish creosote stop whiten colour or otherwise treat all such parts as have
been previously or are usually so dealt with and to repaper or reline the parts
usually papered or lined with suitable good quality paper or fabric in every
fifth year of the term and in the last three months of the term (howsoever
determined) such decorations in the last three months of the Term to be carried
out in such colours patterns and materials as shall first be approved in writing
by the Landlord
3.4 INSURANCE OF PLATE GLASS
To insure and keep insured all plate glass (if any) comprised in the
Demised Premises from time to time against damage or destruction in a sum at
least equal to the cost of replacing the same in the joint names of the Landlord
and
11
the Tenant and such other names if any as the Landlord may from time to time
require with such insurance office as the Landlord may from time to time approve
and to pay all premiums necessary for the above purpose as the same shall become
due and payable and to produce to the Landlord or its agents on demand the
policy or policies of such insurance and the receipt for each such payment and
if any such plate glass shall be damaged or destroyed forthwith to replace the
same and all monies received by virtue of any such insurance to be applied
solely towards the cost of replacing the said plate glass and if such insurance
money is insufficient for such purpose to make up any deficiency PROVIDED ALWAYS
that if the Tenant shall at any time fail to maintain Such insurance the
Landlord may do all things necessary to effect and maintain such insurance and
any monies expended by the Landlord for that purpose shall be payable by the
Tenant on demand and shall be recoverable from the Tenant as rent in arrear
3.5 CLEANING OF WINDOWS
To clean the glass of all windows comprised in the Demised Premises both
inside and out at least once in every month of the tenancy
3.6 CLEANING OF DEMISED PREMISES
To keep the Demised Premises in a clean and tidy condition and regularly to
remove therefrom all waste refuse or offensive materials and articles and not to
deposit any such materials or articles upon any other part of the Estate except
such part (if any) as shall from time to time be provided for the deposit of
such materials and articles
3.7 COMPLIANCE WITH LEGISLATION
To comply in all respects with all requirements (whether placed on the
Landlord or the Tenant) of all present and future Legislation and of all
competent authorities as to the condition of the Demised Premises and the user
thereof and the activities carried on thereat (including the exercise of any
rights granted by this Lease) and any works or alterations executed or required
to be executed thereon or in respect thereof or in any other way affecting the
Demised Premises or any such rights and to keep the Landlord indemnified against
all actions proceedings claims or demands which may be
12
brought or made by reason of any such requirements not having been duly complied
with and if as a result of any such requirements the Landlord or any superior
landlord shall carry out any works or alterations to the Demised Premises or any
other part of the Estate the Tenant shall repay to the Landlord on demand the
expenses thereby incurred by the Landlord or a fair proportion thereof as
determined by the Landlord's Surveyor whose decision shall be final
3.8 YIELDINGUP
At the termination of the tenancy to yield up the Demised Premises and all
fixtures therein in such repair and condition (including without limitation
compliance with clause 3.6) as is required by the covenants on the part of the
Tenant herein contained and to surrender to the Landlord all keys to the Demised
Premises and to remove the Tenant's Fixtures (other than the kitchen) and unless
the Landlord otherwise requires remove all alterations and additions whatsoever
to the Demised Premises including any work in connection with any fitting out of
the Demised Premises by the Tenant and any signs or fascias fixed to the Demised
Premises and make good all damage done by such removal to the satisfaction of
the Landlord PROVIDED THAT:-3.8.1 the Tenant may before such termination remove
all tenant's or trade fixtures but shall make good any damage thereby caused to
the Demised Premises to the Landlord's satisfaction;
3.8.2 if after the termination of the tenancy there shall be left on the
Demised Premises any tenant 5 or trade fixtures (including any of the Tenant's
Fixtures) or any chattels or refuse the Landlord may treat the same as having
been abandoned by the Tenant and may arrange for the removal and destruction or
disposal thereof as the Landlord thinks fit and the Tenant shall pay to the
Landlord on demand the cost of such removal and destruction or disposal and
shall indemnify the Landlord against any liability resulting therefrom; and
3.8.3 if the Tenant shall fail to yield up the Demised Premises in such
repair and condition as aforesaid the Landlord may if it thinks fit effect any
repairs decorations and other works which ought to have been carried out by
13
tile Tenant pursuant to the covenants on the part of the Tenant herein contained
and the Tenant shall pay to the Landlord on demand the cost of such repairs
decorations and other works effected by the Landlord together with mesne profits
at a rate equal to the rack rental value of the Demised Premises at the date of
such termination for the period reasonably required for the carrying out of such
work and the Landlord's Surveyor's certificate as to the amount of such cost and
mesne profits shall be conclusive and binding on the parties
3.9 ENTRY BY LANDLORD
To permit the Landlord and those authorized by it to enter upon the Demised
Premises or any part thereof and to remain on the same for any of the following
purposes:
3.9.1 inspecting the Demised Premises and opening up floors or other parts
of the Demised Premises (including moving fixtures) where such opening-up or
moving is required in order to inspect;
3.9.2 taking schedules of the condition thereof;
3.9.3 taking any measurement or making a valuation of the Demised Premises
3.9.4 taking inventories of the Landlord's Fixtures and of other things to
be yielded up on termination of the term;
3.9.5 repairing altering adding to rebuilding or replacing any adjoining
premises;
3.9.6 repairing, altering, adding to, replacing or installing any
Conducting Media comprised in the Demised Premises which serves or is capable of
being passed through the Demised Premises to serve other premises;
3.9.7 preparing any schedule of works drawings specifications or estimates
required by the Landlord prior to or in contemplation of the exercise by the
Landlord of any rights under this Lease;
3.9.8 to do anything which the Landlord considers necessary or desirable
for the performance by the Landlord of the covenants on its part hereinafter
contained or to prevent forfeiture of any superior lease;
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3.9.9 in connection with any rent review or any impending or intended step
under the Landlord and ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇;
3.9.10 exercising without interruption or interference any of the rights
reserved or granted to it by virtue of the provisions of this Lease
PROVIDED THAT in each of the above cases the person so entering shall cause
as little damage, disturbance and inconvenience as is reasonably practicable and
shall forthwith make good any damage caused to the Demised Premises
3.10 ENTRY BY LANDLORD ON TENANT'S DEFAULT
3.10.1 To permit the Landlord and those authorized by it to enter upon the
Demised Premises in order to carry out any works to which this sub-clause
applies and which the tenant has failed to carry out within two months (or
sooner in the case of emergency) after service upon the Tenant of a notice
requiring the same to be carried out
3.10.2 The works to which this sub-clause applies are:
3.10.2.1 the carrying out and completion in the manner required by this
Lease of any repairs or other works which the Tenant is obliged to carry out by
the terms of this Lease;
3.10.2.2 the removal of any alterations additions or other works carried
out or commenced on the Demised Premises without all necessary licences consents
permissions and approvals of the Landlord the Local Planning Authority and any
other authority or person having been obtained; and
3.10.2.3 the removal or (at the Landlord's option) the completion in a good
and workmanlike manner in accordance with the terms of this Lease and of such
licences consents permissions and approvals of any alterations additions or
other works which have not been so completed.
3.11 EXPENSE OF MAKING GOOD DILAPIDATIONS AND SERVING NOTICES
To pay to the Landlord on demand on an indemnity basis all expenses
(including Solicitors' Surveyors' Architects' and other professional fees)
incurred by the Landlord in connection with or in contemplation of and the
Landlord's reasonable administration fee for
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3 11.1 the carrying out of any works to which the immediately preceding
sub-clause applies;
3 11.2 the preparation and service of any notice under section 146 or
section 147 of the Law of Property ▇▇▇ ▇▇▇▇ notwithstanding that forfeiture is
avoided otherwise than by relief granted by the Court;
3.1 1.3 the preparation and service at any time during or after the
termination of the tenancy of any schedule of dilapidations and any negotiations
relating thereto;
3.11.4 the enforcement of or verification of the Tenant's compliance ~ any
of the Tenant's covenants or conditions herein contained whether any action to
enforce or verify shall be taken during or after the termination of the Tenancy;
3.11.5 the recovery or attempted recovery of any rent or other sums due
from the Tenant; or
3.11.6 the preparation of any such schedule of works drawings
specifications or estimates as are referred to in sub-clause 3.9.7
3.11.7 the levy of a distress for the rents payable hereunder or any part
thereof or as a result of the bailiff being paid the said rents or any part
thereof whether or not any distress in the event be levied
3.12 ALTERATIONS
Not to make any alteration or addition or commit waste to or in any way
injure the Demised Premises or any part thereof or any signs affixed to the
exterior thereof or the internal arrangement thereof or the Conducting Media
comprised in or serving the Demised Premises save that the Tenant may make
nonstructural alterations or additions to the internal arrangement of the
Demised Premises, which do not except for bolts or other fixings cut into and
which do not damage the structural parts of the buildings on the Demised
Premises or the Estate and without prejudice to the foregoing in this subclause
the Tenant shall:-
3.12.1 comply and ensure compliance by others with all conditions and
obligations stipulated by the Landlord in respect of any such alteration or
addition; and
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3.12.2 on or before termination of the tenancy (unless otherwise required
by the Landlord) remove all alterations and additions to the Demised Premises
(including any such made by or on behalf of the Tenant in fitting out the
Demised Premises prior to or at the commencement of the tenancy (including the
Tenant's Fixtures other than the kitchen) and to reinstate the Demised Premises
to its condition before such alterations or additions were carried out in a good
and workmanlike manner to the reasonable satisfaction of the Landlord
3.12.3 demolish and remove any building addition or alteration built or
carried out in breach of this clause and restore the Estate and the Demised
Premises to its previous condition to the reasonable satisfaction of the
Landlord
3.13 OBSTRUCTION OF CONDUCTING MEDIA
Not to interfere with or obstruct any Conducting Media and in so far as
heating ventilation or air conditioning may be provided through such Conducting
Media to ensure that the internal arrangement of the Demised Premises does not
interfere with the efficient operation of such heating ventilation or air
conditioning.
3.14 SIGNS
3.14.1 Not to display upon the exterior of the Demised Premises or upon the
interior thereof so as to be visible outside the Demised Premises any lettering
inscription advertisement board sign notice placard ▇▇▇▇ pole flag or similar
device without the prior written consent of the Landlord which consent will not
be unreasonably withheld or delayed to a sign on the exterior of the Demised
Premises displaying the name and business of the Tenant and of any permitted
sub-tenant in such position and being of such material size design and colours
as the Landlord shall approve (such approval not to be unreasonably withheld or
delayed)
3.14.2 Not to place or affix behind or near the windows of the Demised
Premises so as to be visible outside the Demised Premises: any curtains or other
articles which in the opinion of the Landlord (which the Tenant agrees
17
to accept without dispute) may depreciate the value of the Landlord's
interest in the Demised Premises.
3.15 NUISANCE, OVERLOADING ETC.
Not to LI5C or permit to be used the Demised Premises or any part thereof
for any illegal or immoral purpose or in a manner which in the opinion of the
Landlord will or may depreciate the value of the Landlord's interest in the
Demised Premises or the Estate or become a nuisance annoyance or disturbance to
the Landlord any superior landlord or the owner or occupier of any neighbouring
premises (PROVIDED THAT use of the Demised Premises in accordance with the
Permitted Use referred to in clause 1.1. shall not be in itself deemed a
nuisance) and not to permit any person to reside or sleep at the Demised
Premises and not to bring upon the Demised Premises anything of an explosive or
inflammable nature save for utilisation in the Tenant's Permitted Use of the
Demised Premises or which may overload any part of the Demised Premises
3.16 USE OF ADDRESS OF DEMISED PREMISES
Not to use or permit to be used the address of the Demised Premises in any
advertisement or in any other manner which in the opinion of the Landlord (which
the Tenant agrees to accept without dispute) is or may be detrimental to the
reputation of the Demised Premises or the Estate
3.17 NAME OF DEMISED PREMISES
Not for any purpose whatsoever to use or permit others to use as the name
of the Demised Premises any name other than that given to the Demised Premises
by the Landlord or a name approved in writing by the Landlord (such approval not
to be unreasonably withheld)
3.18 USE OF DEMISED PREMISES
At all times during the term to use the Demised Premises for the Permitted
Use and not to use any part thereof for any other purpose
3.19 PLANNING ACTS
In relation to the Planning Acts:
3.19.1 At all times during the term to comply with the Planning Acts and
all planning consents and conditions (if any) thereunder so far as the same
18
respectively relate to or affect the Demised Premises or any part thereof or any
operations works acts or things already carried out executed done or omitted by
the Tenant or hereafter to be carried out executed done or omitted thereon or
the use thereof for any purpose AND at all times hereafter to indemnify and keep
indemnified the Landlord against all actions proceedings costs expenses claims
and demands in respect of any contravention of such provisions and requirements
3.19.2 during the term so often as occasion shall require without expense
to the Landlord to obtain from the relevant planning authority or the Secretary
of State for the Environment or other authorised person or body all such
planning consents (if any) as may be required for the carrying out by the lawful
occupier thereof from time to time of such person's operations on the Demised
Premises or the institution or continuance thereon of such person's use thereof
which may constitute development within the meaning of the Planning Acts
3.19.3 on receipt by the Tenant of any notice order planning consent
proposal or determination under the Planning Acts to deliver forthwith to the
Landlord a copy thereof and (unless the Tenant shall lawfully decline to
implement a planning consent subject to conditions which it reasonably considers
onerous) without delay and at the Tenant's own expense to comply with such
notice order planning consent proposal or determination AND if so required by
the Landlord to make or join in making at the expense of the Tenant such
representation or appeal in respect of any such notice order planning consent
proposal or determination as the Landlord may reasonably require
3.19.4 Not to make any application under the Planning Acts for permission
to carry out any development (as defined by the Planning Acts) or for the
approval of anything in connection therewith unless the Tenant shall previously
have obtained all consents licences and approvals of the Landlord required under
this Lease for the carrying out of such development.
3.19.5 Not to make any such application except in such form and for such
duration whether limited or unlimited as the Landlord may approve in
19
writing Provided that in relation to a change of use or works which are
otherwise authorised by this Lease approval of such application will not be
unreasonably withheld in any case where (i) neither the application for such
planning permission nor its grant nor implementation will or may create or give
rise to any tax or other fiscal liability for the Landlord or (ii) the Tenant
agrees to indemnify the Landlord against any such tax or other fiscal liability
in such manner and provides such security as the Landlord may require
3.19.6 If the Landlord so directs to apply to the relevant planning
authority to determine whether any relevant proposal requires permission under
the Planning Acts
3.19.7 If reasonably required by the Landlord but at the cost of the Tenant
to appeal against any refusal of planning permission or the imposition of any
conditions on a planning permission relating to the Demised Premises following
an application by or on behalf of the Tenant
3.19.8 Not to enter into any agreement with any competent authority
regulating the development or use of the Demised Premises
3.19.9 Not to implement any planning permission or approval unless the same
has been submitted to and approved in writing by the Landlord whose approval
shall not be unreasonably withheld
3.19.10 In the event of the Tenant carrying out any works in implementation
of any planning permission or approval so approved to carry out and complete all
works required to implement the same in a good and workmanlike manner in
accordance with the terms of such Permission or approval and in accordance with
any other obligations imposed by the Landlord in any license deed or other
document issued by the Landlord permitting such works
3.19.11 To make or secure to the satisfaction of the Secretary of State or
other competent authority appointed for the purpose any payment that may be
required for any planning permission or approval which may be granted and so to
do for the lull term of the permission or approval and similarly to make or
secure any payment that may be required in respect of any development or the
continuance or retention of any development being a
20
permission or approval implemented or development carried out or continued
or retained at any time during the currency of the tenancy
3 19.12 Unless the Landlord otherwise directs to carry out before the
termination of the tenancy or such earlier date as may be nominated by the
Landlord any works required to be carried out to the Demised Premises by a date
subsequent to the termination of the tenancy by any limitation or condition to
which any planning permission or approval implemented by or under or for the
benefit of the Tenant is subject
3.19.13 To produce to the Landlord or the Landlord's Surveyor when required
all such drawings documents and other evidence that the provisions of this
sub-clause have been complied with as they or either of them may reasonably
require
3.19.14 For the avoidance of doubt the Landlord's approval of any
application permission or approval under this sub-clause may be refused on the
ground inter alia that the period thereof or anything contained therein or
omitted therefrom would in the reasonable opinion of the Landlord's Surveyor be
likely to be prejudicial to the interests of the Landlord whether in relation to
the Demised Premises or the Estate or any neighbouring premises or otherwise and
whether during the currency of this tenancy or thereafter
3.20 PRODUCTION OF NOTICES
Within three days of the receipt of the same by the Tenant to give full
particulars to the Landlord or the Landlord's Surveyor of any notice or order or
proposal for a notice or order given issued or made to or on the Tenant by any
competent authority pursuant to Legislation and if so required by the Landlord
or the Landlord's Surveyor to produce such notice order or proposal to them and
without delay to take all necessary steps to comply with any such notice order
or proposal and at the request of the Landlord or the Landlord's Surveyor but at
the cost of the Tenant to make or join with the Landlord in making such
objections or representations against or in respect of any such notice order or
proposal as they or either of them shall deem expedient.
21
3.21 Encroachments
Not to permit any person to encroach upon or to acquire any right of light air
way water or drainage or other easement over the Demised Premises but forthwith
upon being made aware of the same to inform the Landlord of any such
encroachment or of any act or thing which might result in the acquisition of any
right or easement over the Demised Premises and to do all acts and things which
may be necessary or expedient to prevent such encroachment or the acquisition of
any such right or easement provided that if the Tenant shall fail to do such
acts and things as aforesaid the Landlord shall have power to enter upon the
Demised Premises for the purpose of doing the same and any expenses which the
Landlord thereby incurs shall be paid by the Tenant to the Landlord on demand.
3.22 INVALIDATION OF INSURANCE
3.22.1 Not to do or omit or cause any act matter or thing which might
invalidate or prejudicially affect any insurance of the Demised Premises or any
adjoining premises or whereby any payment thereunder may be refused in whole or
part or render the insurance monies in whole or part irrecoverable
3.22.2 Immediately to comply to the satisfaction of the Landlord's insurers
with their requirements for protection of the Demised Premises of which notice
shall have been given to the Tenant whether those requirements relate to the
Demised Premises to the use thereof or to anything in or on the Demised Premises
or to the employment of any persons therein.
3.23 DUPLICATION OF INSURANCE
Not to effect or maintain or contribute towards the maintenance of any
insurance on or in respect of the Demised Premises in duplication of any
insurance effected and maintained by the Landlord PROVIDED ALWAYS that without
prejudice to the foregoing and any right of action or remedy in respect of any
breach thereof if at any time the Tenant shall be entitled to the benefit of any
such insurance on the Demised Premises to pay or procure to be paid to the
Landlord all moneys received by virtue of such insurance and to hold the benefit
of such policy and moneys payable thereunder in trust for
22
the Landlord to be applied towards rebuilding or reinstating the Demised
Premises.
3.24 DISCLOSURE TO INSURERS
Forthwith to give written notice to the Landlord of the occurrence of any
damage or destruction of the Demised Premises or of any other event which the
Landlord is obliged to disclose to the insurers or which ought reasonably to be
brought to the attention of the insurers.
3.25 INCREASED COST OF INSURANCE AND VOID INSURANCE
3 25.1 In the event of the premiums payable for the insurance of the
Demised Premises or the Estate or any neighbouring premises being increased by
reason of any act default or omission of the Tenant to pay on demand to the
Landlord or to whomsoever the Landlord shall direct the amount of such increase
3.25.2 In the event of the Demised Premises being destroyed or damaged by
any of the risks insured against by the Landlord and the insurance money under
any such insurance against the same being wholly or partly irrecoverable by
reason solely or in part of any act default or omission of the Tenant or any
person deriving title from the Tenant or any servant agent licensee or invitee
of the Tenant or any such person the Tenant shall from time to time forthwith on
demand by or on behalf of the Landlord pay to the Landlord the whole or (as the
case may require) the irrecoverable portion of the cost (including professional
and other fees and expenses together with any Irrecoverable VAT thereon) of
completely rebuilding and reinstating the same together with (in the event of
such sums not being paid within ten working days of demand therefor) interest
thereon at the Prescribed Rate calculated to the date of payment (with quarterly
rests) from the date of such destruction or damage
3.26 DISPOSALS BY TENANT
3.26.1 Not to assign transfer underlet licence share or part with
possession or occupation of the Demised Premises or any part thereof nor hold
the Demised Premises on trust for or as a nominee of any person
23
company or body PROVIDED that the transactions mentioned in 3.26.2 and
3.26.3 shall not constitute a breach of this covenant BUT notwithstanding the
foregoing provisions of this clause the Tenant shall be permitted to share
occupation of part or whole of the Demised Premises with a company that is a
Member of the same group as the Tenant (within the meaning of the Landlord and
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ Section 42) for so long as both companies remain Members of the
same group and otherwise than in a manner that transfers or creates a legal
estate or any landlord and tenant relationship and any such sharing of
occupation as provided for by this clause shall be permitted without the
Landlords prior consents being required but the Tenant shall forthwith upon the
commencement and cessation of any such sharing of occupation notify the Landlord
thereof in writing
3.26.2 Not to assign the whole of the Demised Premises without first:-
3.26.2.1 obtaining the written licence of the Landlord which shall not be
unreasonably withheld or delayed such licence to be by way of deed prepared by
the Landlord's solicitors at the expense of the Tenant and to contain a covenant
by the assignee directly with the Landlord to observe and perform the covenants
obligations and conditions on the part of the Tenant herein during the residue
of the term hereby granted from the date of the relevant assignment;
3.26.2.2 satisfying the circumstances specified for the purposes of
S.19(1A) of the Landlord and ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ and set out in clause 3.26.2.4; and
3.26.2.3 complying with the conditions specified for the purposes of S.
19(lA) of the Landlord and ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ and set out in clause 3.26.2.5
3.26.2.4 the circumstances referred to in clause 3.26.2.2 are that:-
3.26.2.4.1 all sums due from the Tenant under this Lease which have been
demanded or become due and are outstanding have been paid at the date of the
application for the licence to assign;
3.26.2.4.2 in the Landlord's reasonable opinion the assignee is at the date
of the application for licence to assign likely to be able to pay the rents
hereby reserved (including any increased rent which the Landlord reasonably
24
anticipates will become payable pursuant to the provisions of this Lease)
and comply with the tenant covenants of this Lease and is likely to continue to
be so able following the assignment;
3.26.2.4.3 the assignee does not have the benefit of diplomatic immunity;
3.26.2.4.4 the assignee is a corporation registered in (or if an individual
is resident in) a jurisdiction in which the order of a court obtained in England
and Wales will be enforced without any consideration of the merits of the case;
3.26.2.4.5 in the case of an assignment to a company which is in the same
group (within the meaning of Section 42 of the Landlord and Tenant Act 1954) as
the Tenant the assignee is in the Landlord's reasonable opinion a company who is
at the date of the application for licence to assign no less likely than the
Tenant was at the date of the grant or assignment of the Lease to the Tenant to
be able to comply with the tenant covenants of this Lease and is likely to
continue to be such a company following the assignment; and
3.26.2.5 The Conditions referred to in clause 3.26.2.3 are that:-
3.26.2.5.1 upon or before any assignment and before giving occupation to
the assignee the Tenant shall covenant by way of indemnity and guarantee with
the Landlord in the terms set out in Schedule 5;
3.26.2.5.2 if so reasonably required by the Landlord the assignee shall
upon or before any assignment and before taking occupation obtain guarantors
reasonably acceptable to the Landlord who shall covenant by way of indemnity and
guarantee (if more than one jointly and severally) with the Landlord in the
terms set out in Schedule 4; and
3.26.2.5.3 the written licence to assign contains a condition that if at
any time prior to the assignment the circumstances (or any of them) specified in
subclause 3.26.2.4 cease to exist the Landlord may revoke the licence by written
notice to the Tenant
3.26.3 Not to underlet the whole of the Demised Premises without first
obtaining the prior consent by deed (which shall be prepared by the Landlord's
solicitors at the expense of the Tenant) of the Landlord both as to
25
the proposed undertenant and the form of the underlease such consent not to
be unreasonably withheld and subject to the following conditions:-
3.26.3.1 the underlease shall reserve a yearly rent payable by equal
quarterly installments in advance on the usual quarter days an amount which will
not be less than the rent for the time being payable hereunder or (if greater)
the then current open market rental value of the Demised Premises with provision
for the review of rent upwards only on the review dates referred to in Schedule
2 and in the manner therein contained
3.26.3.2 the 'underlease shall not be granted in consideration of a fine or
premium
3.26.3.3 the underlease shall contain a covenant on the part of the
undertenant in the underlease that the undertenant will not assign transfer
underlet licence share or part with the possession or occupation of the premises
thereby demised or any part thereof PROVIDED that the undertenant may assign the
whole of the premises thereby demised if the undertenant has first obtained the
prior consent by deed of the Landlord under this Lease (such consent not to be
unreasonably withheld or delayed) --------
3.26.3.4 before granting the underlease and giving possession the Tenant
shall obtain a valid Order from the Court excluding the provisions of Sections
24 to 28 (inclusive) of the Landlord and ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ in relation to such
underlease
3.26.3.5 the Tenant shall not knowingly permit or suffer any breach by any
underlessee of the provisions of any such underlease and at all times shall
strictly enforce the same and operate and enforce any provisions therein for the
review of rent
3.26.3.6 the Tenant shall not at any time reduce or permit to be reduced
the rent payable by any underlessee or waive forego or compound the same
3.26.4 The Tenant shall furnish the Landlord on demand with hill
particulars of all derivative interests and occupational rights of or in the
Demised Premises or any part thereof howsoever remote or inferior including
particulars of the rent or rents payable in respect of such derivative interests
26
and shall supply such further particulars as the Landlord may reasonably
require in respect thereof
3.27 REGISTRATION OF DOCUMENTS
To deliver or cause to be delivered to the Landlord or its agents for the
time being (and at the direction of the Landlord to any superior landlord) a
notice of every assignment underletting disposition or devolution of or charge
on or transfer of the title of the Demised Premises or any part thereof whether
by way of mortgage or otherwise and whether for the whole or any part of the
term or otherwise within one month after the execution or signature of any deed
or document or after the date of any probate letters of administration or other
instrument or any court order by which such assignment underletting disposition
devolution charge or transfer may be effected or evidenced such notice to
specify the name and address and description of the person or persons to whom or
in whose favour the assignment underletting disposition devolution charge or
transfer shall be made or take effect AND also at the time of delivery of any
such notice to produce the deed document instrument or order or a certified copy
thereof by which such assignment underletting disposition devolution charge or
transfer shall purport to be effected or evidenced as aforesaid for the purpose
of having a memorandum thereof entered in a register to be kept for that purpose
AND to pay to the Landlord or its agent their reasonable fees for the
registration of each such deed document instrument or order or certified copy
thereof
3.28 WHERE DEMISED PREMISES ARE FOR SALE OR TO LET
To permit the Landlord at any time (in the case of a proposed sale mortgage
or charge of the Landlord's interest) or during the twelve months immediately
preceding the termination of the term hereby demised and any continuation of the
tenancy thereafter to affix and retain without interference to any part of the
exterior of the Demised Premises but so as not unduly to obscure the windows
thereof or interfere with the Tenant's use thereto) a notice advertising that
the same are for sale or to let and during the said twelve months and any
continuation of the tenancy thereafter (or at any time in the
27
case of a disposal of the Landlord's interest) to permit the Landlord or any
person authorised by it to show the Demised Premises to prospective tenants
mortgagees and purchasers or their agents at reasonable times by prior
appointment
3.29 COST OF LICENCES ETC.
To pay on an indemnity basis the costs and disbursements (including stamp
duties) of the Landlord's Solicitors Surveyors Architects and other professional
advisers and the Landlord's reasonable administration fee in connection with any
Deed or other thing hereby required to be executed or done at the Tenant's
expense or any licence consent or approval applied for by the Tenant relating to
the Demised Premises or the provisions of this Lease whether or not the same
shall be executed done or given together with any Irrecoverable VAT thereon.
3.30 INDEMNITIES
3.30.1 To pay and make good to the Landlord all and every loss and damage
whatsoever incurred or sustained by the Landlord as a consequence of any breach
or non-observance of the Tenant's covenants herein contained and to indemnify
the Landlord from and against all actions claims liabilities costs and expenses
thereby arising and in the event of forfeiture of this Lease to indemnify the
Landlord against all losses costs damages and expenses incurred by the Landlord
consequent upon such forfeiture and (without prejudice to the generality
thereof) pending any re-letting of the Demised Premises to pay to the Landlord
amounts equal to all rent and other sums which but for such forfeiture would
have been payable by the Tenant under this Lease (at the respective times
therein provided for) and all costs charges and expenses incurred by the
Landlord of and incidental to any re-letting or attempted re-letting of the
Demised Premises and any other losses costs damages and expenses occasioned to
the Landlord by reason of or in consequence of any forfeiture of this Lease.
3.30.2 Without prejudice to any other right or remedy available to the
Landlord to indemnify and keep the Landlord effectually indemnified from
28
and against all expenses proceedings claims damages costs demands loss and any
other liabilities as a consequence of or in respect of:
3.30.2.1 (save to the extent that the Landlord is effectively indemnified
by a policy of insurance effected by it hereunder) damage to the Demised
Premises or the Estate caused by any act default or negligence of the Tenant or
any person deriving title from the Tenant or the servants agents licensees or
invitees of the Tenant or such person;
3.30.2.2 any injury to or death of any person, damage to any property, the
infringement disturbance or destruction of any right easement or privilege or
otherwise by reason of or arising directly out of the state of repair and
condition of the Demised Premises (to the extent that the Tenant is responsible
therefor under this Lease) or the user of the Demised Premises;
3.30.2.3 to indemnify the Landlord against any taxes charges or other
assessments payable in respect of any change of use or works (as the case may
be) permitted by or by reason of this Lease or by reason of any licence granted
to the Tenant or by reason of the obtaining of any consents required to be
obtained under the terms of any such licence.
3.31 PLANS DOCUMENTS AND INFORMATION
3.31.1 If called upon to do so supply copies to the Landlord or the
Landlord's Surveyor of all plans documents and other evidence as the Landlord
may reasonably require in order to satisfy itself that the provisions of this
Lease have been complied with
3.31.2 If called upon to do so to furnish to the Landlord or the Landlord's
Surveyor and (as the case may be) to the independent surveyor referred to in
Schedule 2 such information as may reasonably be requested in writing in
relation to any pending or intended step under the Landlord and ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
or the implementation of any provisions for rent review contained in Schedule 2
3.32 INTEREST
Without prejudice to or derogation from any other right remedy or power
whatsoever available to the Landlord if so required by the Landlord to pay to
29
the Landlord interest at the Prescribed Rate both before and after judgment
upon:
3.32.1 any installment of the Yearly Rent or any other rents hereby
reserved or any part thereof which shall not have been paid to the Landlord on
the due date for payment (or in the case of sums other than the installments of
the Yearly Rent seven days after the same became due) for the period from the
date on which the same became due to the date on which the same was paid
PROVIDED that any installment which is tendered to the Landlord but which the
Landlord has declined to accept so as to avoid the risk of waiving any right to
forfeit this Lease to which the Landlord is entitled shall for the purpose of
this sub-clause be deemed not to have been paid; and
3.32.2 any expenditure by the Landlord or any other sums payable to the
Landlord pursuant to this Lease and not included in the rent secondly reserved
but which the Tenant is required to reimburse or pay to the Landlord for the
period from the date of such expenditure or demand for payment of such other
sums to the date on which such reimbursement or payment was made.
3.33 REGULATIONS
To comply and procure compliance by the occupiers of the Demised Premises
or any part thereof and by the Tenant's and such occupiers' respective servants
licensees and visitors with such reasonable regulations as the Landlord shall
from time to time make relating to the use of any parts of the Estate and which
in the opinion of the Landlord are desirable in the interest of the persons
(including the Landlord) entitled to use such parts or for the proper management
of the Estate (and without prejudice to the generality of the foregoing such
regulations shall include compliance with the covenants conditions restrictions
and regulations set Out in the Oakirnber Transfers)
3.34 VALUE ADDED TAX
3.34.1 To pay VAT on all supplies including the grant of this Lease
received by the Tenant under or in connection with this Lease.
30
3.34.2 To pay to the Landlord an amount equivalent to any Irrecoverable VAT
on supplies received by the Landlord under or in connection with this Lease.
3.34.3 All references in this Lease to amounts (including rent) payable by
the Tenant to the Landlord are references to such amounts exclusive of VAT and
the Tenant shall pay to the Landlord in addition to any such amount any VAT
payable on that amount.
3.35 OBLIGATIONS AFFECTING LANDLORD'S TITLE
3.35.1 To observe and perform all obligations imposed upon and the
covenants on the part of the Landlord in respect of the Demised Premises arising
from the matters specified in Part IV of Schedule 1 and not to commit any breach
of the aforesaid obligations and covenants in respect of the Estate (and in
particular but without prejudice to the generality of the foregoing the Tenant
shall be primarily liable promptly and duly to observe and perform the covenants
on the part of the Purchaser contained in the Oakimber Transfers in so far as
they relate to the Demised Premises) PROVIDED that the Landlord shall with all
due speed pass on to the Tenant copies of all demands notices or other
correspondence papers or documents received by the Landlord relating to such
obligations and covenants
3.35.2 To indemnify and keep indemnified the Landlord from and against any
actions proceedings claims damages costs and expenses or losses arising from any
breach non-observance or non-performance of such covenants and conditions
3.36 FIRE-FIGIITING EQUIPMENT
To keep the Demised Premises supplied and equipped with such fire-fighting
apparatus and appliances as the Landlord's insurers or the fire officer or other
competent authority shall from time to time in writing specify or approve
3.37 DEFECTIVE PREMISES
To notify the Landlord without delay of any "relevant defect" in the state
of the Demised Premises within the meaning of Section 4 of the Defective
Premises Act 1972 or any statutory modification or re-enactment thereof for the
time being in force AND to display and maintain all notices and to erect
31
and maintain effective barriers if necessary which may from time to time be
required to be displayed or erected on the Demised Premises under the said Act
AND to indemnify the Landlord against all liability and cost arising in respect
of any r1otice claim or demand costs and proceedings brought thereunder
3.38 SUBSTITUTION OF SURETY
Within fourteen days of the death during the term of any surety for the time
being for the performance and observance of the Tenants covenants or of such
person becoming bankrupt or having a receiver appointed under the Mental Health
▇▇▇ ▇▇▇▇ or being a company passing a resolution to wind up or entering into
liquidation or having a receiver appointed to give notice of this to the
Landlord AND if so required by the Landlord at the expense of the Tenant within
twenty-eight days to procure some other person reasonably acceptable to the
Landlord to execute a deed of guarantee in respect of the Tenant's obligations
contained in this Lease in the form of the Surety's covenants set out n Schedule
4
4. LANDLORD'S COVENANTS
Subject to the Tenant paying the rents hereby reserved and observing and
performing the covenants on its part and the conditions herein contained the
Landlord hereby covenants with the Tenant (but so that the Landlord shall not
remain personally liable to the Tenant after it has disposed of its reversionary
interest to this Lease except for any breach occurring prior to such disposal)
as follows:
4.1 INSURANCE
To insure the Estate with reputable insurers (subject to such exclusions
and limitations as are imposed by the insurers and subject to the appropriate
insurance cover being obtainable) in the Full Reinstatement Cost thereof against
the occurrence of any of the Insured Risks AND to provide to the Tenant on
demand (but not more frequently than twice in every year) copies of the relevant
policies and schedules of insurance together with copies of the receipts for the
latest premiums payable in respect thereo
32
4.2 REINSTATEMENT OF INSURED DAMAGE
4.2.1 In the event of damage or destruction of the Demised Premises or any
part thereof and/or those parts of the Estate properly used by the Tenant in the
Tenant's enjoyment of the Demised Premises by any of the Insured Risks then save
to the extent that the insurance monies in respect thereof are irrecoverable in
whole or in part due to some act or default on the part of the Tenant or any of
the Tenants servants agents or licensees or persons deriving title under the
Tenant or the user of the Demised Premises then (subject to Clause 4.2.2) the
Landlord shall forthwith diligently pursue all claims and apply all insurance
proceeds received in respect of such damage or destruction (other than money
received in respect of Loss of Rent Insurance) in rebuilding or reinstating the
Demised Premises and the said parts of the Estate as soon as reasonably
practicable making up any difference between the cost of rebuilding and
reinstating and the money received out of the Landlord's own money
4.2.2 The Landlord shall not be liable to rebuild or reinstate the Demised
Premises if prevented from so doing by circumstances beyond the Landlords
control
4.2.3 If upon the expiration of the period of two and a half years (or such
longer period as shall be agreed in writing between the Landlord and the Tenant)
commencing on the date of the damage or destruction by any of the Insured Risks
the Demised Premises have not been rebuilt or reinstated so as to be fit for the
Tenant's occupation and use either party may by notice in writing served at any
time within six months of the expiry of such period terminate the term in
accordance with the provisions of Clause 4.2.4 PROVIDED that the Tenant shall
not be entitled to serve such a notice if the Landlords inability to rebuild or
reinstate the Demised Premises results from any act or default of the Tenant the
Tenants immediate or remote undertenants or anyone at or near the Demised
Premises expressly or by implication with their authority or where the insurance
of the Demised Premises effected pursuant to the covenant by the Landlord in
that behalf herein contained has been vitiated in whole or in part by some act
or default of the Tenant the I
33
Tenants' immediate or remote undertenants or anyone at or near the Demised
Premises expressly or by implication with their authority
4.2.4 From a date twenty-one days after the service of a notice in
accordance with Clause 4.2.3 the term will absolutely cease but without
prejudice to any rights or remedies that may have accrued to either party
against the other PROVIDED THAT the Tenant shall have no claim against the
Landlord in respect of and the Landlord shall be deemed to be released from the
covenant on the part of the Landlord to reinstate the Demised Premises AND all
money received in respect of the insurance effected by the Landlord pursuant to
the provisions hereinbefore contained shall belong to the Landlord
4.2.5 Any difference or dispute as to the operation of this clause shall be
determined by an independent Surveyor (acting as expert) appointed in default of
agreement between the parties by the President of the Royal Institution of
Chartered Surveyors on the application of either party
4.3 QUIET ENJOYMENT
That the Tenant shall peaceably hold and enjoy the Demised Premises
throughout the said term without any lawful interruption by the Landlord or any
person lawfully claiming under through or in trust for the Landlord.
4.4 REPAIRS
Subject to the Tenant paying the Interim Charge and the Service Charge the
Landlord shall use its reasonable endeavours to maintain the Accessway in good
and substantial repair and condition
5. PROVISOS
Provided always and it is expressly agreed as follows:
5.1 FORFEITURE
If the rents hereby reserved or any part thereof shall be in arrear for
twenty one days after the same shall have become due (whether legally demanded
or not) and for the purposes of this clause any rents paid by the Tenant by
bankers standing order or credit transfer shall be deemed for all purposes
hereof not to have been received by the Landlord until the same shall have been
received by the Landlord's bank or in the event of any breach of any of
34
the Tenant's covenants herein contained or if the Tenant or any guarantor for
the Tenant (being a company) shall enter into liquidation (other than a
voluntary members liquidation on terms approved by the Landlord when solvent for
the purpose of reconstruction or amalgamation forthwith carried into effect)
whether voluntarily or compulsorily or if the Tenant or any guarantor shall for
any reason be removed from the register of companies or be unable to pay its
debts within the meaning of section 123 of the Insolvency ▇▇▇ ▇▇▇▇ or if a
petition shall be presented for the appointment of an administrator or a
receiver (whether or not an administrative receiver) or manager shall be
appointed of the whole or any part of its or their respective undertakings or an
administration order shall be made or if there shall be convened a meeting of
creditors or members to consider a voluntary arrangement or any other scheme or
composition with the Tenant" creditors or if the Tenant or such guarantor (not
being a company) shall become bankrupt have a bankruptcy order made against it
or them or a petition for such order shall be presented or if an interim
receiver is appointed of the property of the Tenant or such guarantor or if the
Tenant or such guarantor (whether or not a company) shall enter into any
arrangement or composition for the benefit of its or their respective creditors
or shall suffer any distress or execution to be levied on their respective goods
then in any of the said cases it shall be lawful for the Landlord or any person
on its behalf at any time thereafter to re-enter upon the Demised Premises or
any part thereof in the name of the whole and thenceforth peaceably to hold and
enjoy the same as if this Lease had not been made and thereupon this demise
shall absolutely determine except for the Tenant's obligations under the
sub-clause headed INDEMMTIES but without prejudice to any right of action of the
Landlord in respect of any breach of the Tenant's covenants herein contained
5.2 SUSPENSION OF RENT
If the Demised Premises or any part thereof or any part of the Estate over
which the rights specified in Part II of Schedule 1 are exercised shall be so
destroyed or damaged by any of the Insured Risks as to render the Demised
Premises or some part thereof unfit for or incapable of occupation and use by
35
the Tenant then (unless any of the insurance money in respect of loss of rent
shall have been rendered irrecoverable by the act or default of the Tenant or
any other person deriving title from the Tenant or any licensee or invitee of
the Tenant or any such other person) the rents hereby reserved or a fair
proportion thereof according to the extent of the damage shall be suspended and
cease to be payable until the same shall have been reinstated and the Demised
Premises are fit for occupation and use or until the expiration of the period
from the date of such destruction or damage for which the Landlord has Loss of
Rent Insurance whichever shall be the earlier PROVIDED that any dispute as to
the amount which ceases to be payable shall be determined by an independent
Surveyor (acting as expert) appointed in default of agreement between the
parties by the President of the Royal Institution of Chartered Surveyors on the
application of either party
5.3 COMPENSATION UNDER ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Subject to the provisions of sub-section (2) of section 38 of the Landlord
and ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ neither the Tenant nor any person deriving title from the
Tenant to the whole or any part of the Demised Premises shall be entitled on
quitting the Demised Premises to any compensation under section 37 of the said
Act
5.4 EXCLUSION OF LIABILITY ON PART OF LANDLORD
5.4.1 The Landlord shall not be liable to any person other than the
Tenant to perform any of the covenants herein contained whether expressed
or implied in so far as such covenants impose obligations going beyond the
common duty of care imposed by the Occupiers Liability ▇▇▇ ▇▇▇▇ or the Defective
Premises ▇▇▇ ▇▇▇▇ and the Landlord shall not be liable to the Tenant or any
other person for any accident loss or damage which may at any time during the
said term be occasioned to or suffered by the Tenant or any other person or
occasioned to the Demised Premises or to any goods or property of the Tenant or
any other person by reason of any breach of any obligation on the part of the
Landlord herein contained whether expressed or implied resulting from any act
neglect default or misfeasance or nonfeasance
36
whether tortious or of any other kind whatsoever of any servant or employee or
agent or tenant of the Landlord or any other person or by reason of any fire or
leakage or overflow from any Conducting Media or other appliances in or near the
Demised Premises
5.4.2 Nothing herein contained or implied nor any statement or
representation made by or on behalf of the Landlord shall be taken to be a
covenant warranty or representation that the Demised Premises can lawfully be
used for the Permitted Use
5.5 FORM OF LICENCES ETC.
Any consent permission licence or approval purporting to be given by the
Landlord to the Tenant in relation to this Lease or the Demised Premises whether
or not the same be required to be obtained by the Tenant by any of the covenants
or conditions herein contained shall be ineffective unless the same be given
either:
5.5.1 by Deed; or
5.5.2 by writing under the hand of the Landlord or some duly authorised
officer or agent of the Landlord expressly stating that the Landlord does not
require the same to be by Deed.
5.6 WAIVER OF RIGHT TO FORFEIT
That no demand for or acceptance or receipt in whole or in part of any of
the rents hereby reserved or any payment on account thereof or ~e grant of any
consent permission licence or approval hereunder shall operate as a waiver by
the Landlord of any right which the Landlord may have to forfeit this Lease by
reason of any breach of covenant or condition by the Tenant notwithstanding that
the Landlord may know or be deemed to know of such breach at the date of such
demand acceptance receipt or grant
5.7 IMPLIED EASEMENTS AND OTIIER RIGHTS
5.7.1 Nothing herein contained shall operate to grant by implication or
otherwise any estate right or easement not hereby expressly granted by the
Landlord.
5.7.2 Nothing herein contained shall confer on the Tenant any right to the
benefit of or to enforce any covenant or agreement contained in any
37
lease or other instrument relating to any other premises belonging to the
Landlord or limit or affect the right of the Landlord to deal with the same now
or at any time hereafter in any manner which may be thought fit.
5.8 PARTYWALLS
Such of the walls (if any) of the Demised Premises as divide the Demised
Premises from other premises of the Landlord shall be deemed to be party walls
divided longitudinally and shall be included in the Demised Premises to the
centre of such division.
5.9 ARBITRATION
Where in this Lease provision is made for the appointment of some person to
act as an expert or arbitrator to determine a matter of difference between the
Landlord and the Tenant and such provision proves ineffective to secure such
appointment then the difference in question shall if the Landlord so requires be
settled by a single arbitrator under the Arbitration Acts 1950 and 1979.
5.10 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.
5.11 SERVICE OF NOTICES
5.11.1 The provisions of section 196 of the Law of Property ▇▇▇ ▇▇▇▇ as
amended by the Recorded Delivery Service ▇▇▇ ▇▇▇▇ shall apply to any notices
served pursuant to or in connection with this Lease as if such notices were
notices required or authorised under the said Acts.
5.11.2 The reference in such section to a registered letter shall also
include a pre-paid first class ordinary letter.
5.11.3 If the Tenant or the Guarantor shall comprise more than one person
the service of any such notice demand request or other communication on any one
of such persons shall constitute good service on all persons constituting the
Tenant or (as the case may be) the Guarantor.
38
5.12 VALUE ADDED TAX
5.12.1 The Landlord may but is not obliged to exercise the Election so as
to secure that supplies made under the Lease are or are treated as
standard-rated supplies for VAT purposes.
5.12.2 The Landlord may issue a yearly invoice in accordance with
Regulation 19 of the VAT (General) Regulations 1985 (SI 1985/886)
5.13 REDEVELOPMENT OF ADJOINING PROPERTY
That nothing herein contained shall by implication of law or otherwise
operate or be deemed to confer upon the Tenant any easement right or privilege
whatsoever over or against any adjoining property (including the Estate) or
which would or might restrict or prejudicially affect the future rebuilding
alteration or development of such adjoining property AND that the Landlord shall
have the right at any time to make such alterations to or pull down and rebuild
or redevelop any such adjoining property as it may deem fit without obtaining
any consent from or making any compensation to the Tenant PROVIDED that the
Landlord shall cause as little nuisance as practicable to the Tenant
IN WITNESS whereof the parties have signed or sealed this Deed as indicated
below and it has been delivered on their behalf on the day and year first above
written
SCHEDULE 1
Part I
Description of the Demised Premises
The premises known as ▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ more particularly delineated and edged red on the Plan and
forming part of the land registered at H.M. Land Registry under titles numbered
SYS79222 and SY579223
39
Part II
Rights granted to the Tenant
1. The free passage and running of gas electricity water soil and other
services through and along the Conducting Media now or at any time hereafter in
or upon the Estate and serving any part of the Demised Premises
2. The right to support and to shelter and protection from those parts of
the Estate not included in this demise as at the date hereof
3. The right to enter upon the other parts of the Estate at reasonable
times in the day time after giving 48 hours written notice (except in case of
emergency) for the purposes of:-
3. i inspecting maintaining repairing or renewing any of the Conducting
Media thereon and installing within other parts of the Estate any new Conducting
Media required in connection with the services within the Demised Premises or
the use by any person of any part thereof and
3.2 carrying out any repairs renewals maintenance necessary inspections or
alterations to the Demised Premises
BUT only if such matters or works cannot otherwise be reasonably effected
from the Demised Premises the person exercising such rights causing as little
nuisance as possible and remedying any physical damage so caused as soon as
reasonably practicable ---
4. The right for the Tenant and all persons authorised by the Tenant in
common with all others entitled at all times in connection with the Permitted
User of the Demised Premises to go pass and ▇▇▇▇▇▇ over through and along the
Accessway with or without vehicles
5. Such rights in common with the Landlord and others as are Co extensive
with the rights of which the Landlord has the benefit under the
Oakimber Transfers
6. The right to retain or install upon the Demised Premises satellite
dishes or other communication devices as shall be approved by the Landlord (such
approval not to be unreasonably withheld or delayed)
40
Part III
Rights Reserved
1. The free passage and running of gas electricity water soil and other
services through and along the Conducting Media now or at any time hereafter in
or upon the Demised Premises and serving any part of the Estate
2. The right to enter upon the Demised Premises at reasonable times in the
day time after giving 48 hours written notice (except in case of emergency) for
the purposes of:
2.1 inspecting maintaining repairing or renewing any of the Conducting
Media thereon and installing within the Demised Premises any new Conducting
Media required in connection with the services within the Estate or the use by
any person of any part thereof and
2.2 carrying out any repairs renewals maintenance necessary inspections or
alterations to any other part of the Estate (including the erection of
scaffolding and the placing of ladders upon the Demised Premises if that shall
be necessary for such works) and
2.3 carrying out matters giving rise to the Landlord's Expenses and/or such
other services as the Landlord wishes to carry out and the cost of which can be
recovered by means of the Service Charge
PROVIDED THAT in exercising such right the Landlord shall use its
reasonable endeavours not materially to interfere with the use enjoyment and
access of the Tenant in respect of the Demised Premises and the person
exercising such rights causing as little nuisance as practicable and remedying
any physical damage so caused as soon as reasonably practicable
3. All liberties privileges easements quasi-easements rights and advantages
whatsoever now held or enjoyed with or appertaining or reputed to appertain to
any other part of the Estate
41
4 The right to deal in any manner whatsoever with the remainder of the
Estate and to erect maintain rebuild or alter or suffer to be erected maintained
rebuilt or altered thereon any buildings whatsoever whether such buildings shall
or shall not affect or diminish the light or air which may now or at any time
hereafter be enjoyed for or in respect of the Demised Premises
5. The right of support and shelter by and from the Demised Premises for
any part of the Estate
6. The rights and liberties to enter upon the Demised Premises in the
circumstances in which the Tenant covenants to permit such entry in the
covenants by the Tenant herein contained
Part IV
Matters subject to and with the benefit
of which the Demised Premises are demised
The covenants restrictions stipulations rights liabilities and other
matters other than charges to secure money set out or referred to in the
Property and Charges Registers of H.M. Land Registry titles numbered 5Y579222
and SY579223
SCHEDULE 2
Rent Review
1. In this Schedule the following expressions shall have the meanings
respectively ascribed to them:-
"Review Date" means the [] day of [] in each of the years 2002 and 2007 and
the penultimate day of the term and each other date that becomes a Review Date
pursuant to the provisions of this Schedule
"Rental Value" means the best yearly rack rent or the aggregate best yearly
rack rents (whichever shall be the higher) at which the Demised Premises might
be
42
let as a whole or in parts at the relevant Review Date in the open market
and with vacant possession by a willing lessor to a willing lessee without a
premium for a term equal to the residue of the term of this Lease unexpired at
the relevant Review Date or 10 years (whichever is the longer) and for the
avoidance of doubt such term shall be deemed to be computed from the relevant
Review Date but otherwise on the terms of this Lease (other than the amount of
the rent hereby reserved but including the provisions for review of that rent
similar to those set out in this Schedule) and ON THE ASSUMPTION (whether or not
it is a fact) that:- ------ ----------
(1) all the covenants and obligations on the part of the Tenant contained
in this Lease have been observed and performed (but without prejudice to any
rights or remedies of the Landlord in regard thereto)
(2) if the Demised Premises at the relevant Review Date or the means of
access thereto or egress therefrom have been damaged or destroyed such damage or
destruction has been reinstated
(3) that the Demised Premises are available immediately for occupation and
use
(4) no reduction is to be made to take account of any rental concession
rent free period or other inducement which on new letting with vacant possession
might be granted to the incoming lessee
43
BUT DISREGARDING: -
(a) any effect on rent of any goodwill attached to the Demised Premises by
reason of the carrying on by the Tenant or any duly authorised under-tenant of
any business thereon or thereat
(b) any effect on rent of the occupation of the Demised Premises by the
Tenant or any duly authorised under-tenant
(c) any effect on rent of any improvements to the Demised Premises made by
the Tenant or by any duly authorised under-tenant with the consent of the
Landlord or any improvements carried out more than twenty one years prior to the
relevant Review Date but so that there shall not be so disregarded any
improvements effected at the expense of the Landlord or in pursuance of any
obligation to the Landlord (whether under the provisions of this Lease or any
other deed or document)
(d) any effect on rent of the existence of the Tenant's Fixtures on in or
about the Demised Premises
means the President for the time being of the Royal Institution of
Chartered Surveyors or a duly authorised person acting on his behalf or in
substitution for him
2. On and after each Review Date the yearly hereunder shall be whichever is
the greater of: -
(1) the Rental Value at the Review Date then occurring or "President" rent
first reserved
44
(2) the yearly rent payable pursuant to the terms and provisions of this
Lease immediately prior to such Review Date
3. (1) In the event of the Landlord and the Tenant failing to
agree the Rental Value by a date three months prior to any Review Date then
the determination of the Rental Value at that Review Date may be referred to and
conclusively determined by an independent surveyor such surveyor to be agreed
upon by the Landlord and the Tenant or if they do not so agree before a date two
months prior to that Review Date to be nominated upon the application of the
Landlord or the Tenant by or on behalf of the President
(2) The independent surveyor shall act as an arbitrator unless prior to the
application to the President the Landlord shall have notified the Tenant in
writing that the Landlord requires the surveyor to act as an expert and not an
arbitrator
(3) In the case of arbitration the arbitration shall be conducted in
accordance with the Arbitration Acts 1950 and 1979 with the further provision
that if the arbitrator nominated pursuant to this sub-Clause shall die or
decline to act the President may on the application of either the Landlord or
the Tenant by writing discharge the arbitrator and appoint another in his place
(4) In the case of determination by an independent expert he shall afford
the Landlord and the Tenant an opportunity to make representations to him AND if
the independent surveyor shall die delay or become unwilling unfit or incapable
of acting or if for any other reason the President shall think fit he may on the
application of either the Landlord or the Tenant by writing discharge the expert
and appoint another in his place ---
(5) The fees payable to the independent Surveyor shall be borne and paid by
the parties equally
4. If by a Review Date the Rental Value at such Review Date has not been
ascertained pursuant to the terms and provisions of this Schedule the Tenant
shall continue to pay the yearly rent previously payable and on the quarter day
next after such ascertainment the Tenant shall in addition to any
45
increased rent payable pursuant to the foregoing provisions hereof pay to the
Landlord without any deduction whatsoever the amount of the difference between
the said yearly rent previously payable and the rent so ascertained for the
period commencing on such Review Date and ending on such quarter day together
with interest on such difference at the rate of four percentage points below the
Prescribed Rate from the Review Date to the date of payment
5. If on any Review Date the Landlord shall be obliged legally or otherwise
to comply with any Act of Parliament Order or direction dealing with the control
of rent or which shall restrict or modify the Landlord's right to reserve or
receive any increase in rent in accordance with the terms and provisions of this
Lease then the first day of the month next following any relaxation removal or
modification of such enactment order or direction in whole or in part shall be a
Review Date
6. The amount of any increased rent ascertained in accordance with the
foregoing provisions of this Schedule shall within twenty eight days of such
ascertainment be recorded by way of Memorandum attached to this Lease and the
Counterpart hereof by and at the expense of the Tenant and the Landlord
respectively
SCHEDULE 3
PART I
The Landlord's Expenses
1. The reasonable and proper cost of the repair and maintenance (and where
reasonably necessary) renewal and replacement of the Accessway
2. The reasonable and proper cost of making repairing maintaining
rebuilding and cleaning all ways roads pavements Conducting Media walls party
structures fences or other conveniences which shall belong to or be used by the
Demised Premises in common with other parts of the Estate or by the Estate in
common with adjoining or neighbouring premises (save to the extent that the same
falls within the Development Charge)
3. The cost of all works which by or under any enactment or by local or
other authority are or may be directed or required to be executed
46
upon or in respect of any part of the Estate (other than parts separately
let or intended to be separately let)
4. The cost of compliance with any notice of any local or other authority
in respect of any part of the Estate (other than parts separately let or
intended to be separately let) 5 (a) The reasonable and proper cost of the
employment at the
Landlord's discretion of a firm of managing agents to manage the Estate and
discharge all proper fees salaries charges and expenses payable to such agents
or such other person who may be managing the Estate provided that if the
Landlord shall at the Landlord's discretion manage the Estate instead of
employing a firm of managing agents the Landlord shall be entitled to charge a
reasonable fee for such management limited to 12.5% of total expenditure
(b) The cost of the employment of all such surveyors builders architects
engineers tradesmen accountants solicitors or other professional persons as may
be necessary or desirable for the proper maintenance safety and administration
of the Estate and assessing recording and auditing all costs and expenses
involved
6. Without prejudice to the foregoing the cost of all such services works
installations acts matters and things as in the absolute discretion of the
Landlord may be considered necessary or advisable for the proper maintenance
safety amenity and administration of the Estate
7. The cost of borrowing monies from any clearing bank to pay any of the
Landlord's Expenses and paying the interest on such sums borrowed as required by
such bank
PART II
The Service Charge and the Interim Service Charge
1. In this part of this Schedule the following expressions have the
following meanings respectively
(1) "total expenditure" means the aggregate of the Landlord's Expenses
including any Irrecoverable VAT in any accounting period plus any VAT charged
thereon
47
(2) "accounting period" means the period of one year to the date nominated
by the Landlord from time to time
(3) "the Service Charge" means 40 per centum of total expenditure or (in
respect of the accounting period during which this Lease is executed) such
proportion of such percentage as is attributable to the period from the date of
this Lease to the end of the current accounting period
(4) "the Interim Service Charge" means such sum to be paid on account of
the Service Charge in respect of each accounting period as the Landlord or
Landlord's managing agents shall specify at its or their reasonable discretion
to be a fair and reasonable interim payment
2. In this Schedule any surplus carried forward from previous accounting
periods shall not include any Reserve Sum
3. The first payment of the Interim Service Charge (on account of the
Service Charge for the accounting period during which this Lease is executed)
shall be made on the execution hereof and thereafter the Interim Service Charge
shall be paid to the Landlord by equal quarterly installments payable in advance
on the usual quarter days with the rent reserved by this Lease and in case of
default the same shall be recoverable from the Tenant as rent in arrear
4 If the Interim Service Charge paid by the Tenant in respect of any
accounting period exceeds the Service Charge for that period the surplus of the
Interim Service Charge so paid over and above the Service Charge shall be
carried forward by the Landlord and credited to the account of the Tenant in
computing the Service Charge in succeeding accounting periods as hereinafter
provided
5. If the Service Charge in respect of any accounting period exceeds the
Interim Service Charge paid by the Tenant in respect of that accounting period
together with any surplus from previous years carried forward as aforesaid then
the Tenant shall pay the excess to the Landlord
48
within twenty-eight days of service upon the Tenant of a certificate
referred to in the following paragraph and in case of default the same shall be
recoverable from the Tenant as rent in arrear
6. As soon as practicable after the expiration of each accounting period an
account of the total expenditure shall be prepared by the Landlord or Landlords
managing agents and there shall be served upon the Tenant by the Landlord or the
Landlord's agents a certificate signed by such agents containing the following
information:
(a) The amount of the total expenditure for that accounting period
(1)) The amount of the Interim Service Charge paid by the Tenant in respect
of that accounting period together with any surplus carried forward from the
previous accounting period
(c) The amount of the Service Charge in respect of that accounting period
or deficiency of the Service Charge over or under the Interim Service Charge
(d) The amount of any Reserve Sum
7. The said certificate shall (save in the case of manifest error) be
conclusive and binding on the parties hereto but the Tenant shall be entitled at
the Tenant's own expense at any time within twenty-eight days after service of
such certificate to inspect the account of the Landlord's Expenses
SCHEDULE 4
Covenant by Surety
1. Covenant and indemnity by Surety
The Surety hereby covenants with the Landlord as a primary obligation and
not merely as guarantor that the Tenant or the Surety shall at all times during
the term 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 herein specified and
49
as a separate severable covenant that the Tenant and the Surety shall at
all times observe and perform the Tenant's obligations under any deed the Tenant
may enter into pursuant to clause 3.26.2.5.1 ("Authorised Guarantee Agreement)
and the Surety hereby covenants to indemnify the Landlord against all claims
demands losses damages liability costs fees and expenses whatsoever properly
sustained by the Landlord by reason of or arising in any way directly or
indirectly out of any default by the Tenant in the performance and observance of
any of its obligations or the payment of any rent and other sums
2. Surety jointly and severally liable with Tenant
The Surety hereby further covenants with the Landlord that the Surety is
jointly and severally liable with the Tenant (whether before or after any
disclaimer by a liquidator or trustee in bankruptcy) for the fulfillment of all
the obligations of the Tenant under this Lease or an Authorised Guarantee
Agreement and agrees that the Landlord in the enforcement of its rights
hereunder may proceed against the Surety as if the Surety was named as the
Tenant in this Lease or in an Authorised Guarantee Agreement
3. Waiver by Surety
The Surety hereby waives any right to require the Landlord to proceed
against the Tenant or to pursue any other remedy whatsoever which may be
available to the Landlord before proceeding against the Surety
4. Postponement of claims by Surety against Tenant The Surety hereby
further covenants with the Landlord that the Surety shall not claim in any
liquidation bankruptcy composition or arrangement of the Tenant in competition
with the Landlord or claim any set off or counter claim against the Tenant in
respect of any liability to the Tenant by the Surety 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 Tenant and shall hold
for the benefit of the Landlord all security and rights the Surety may have over
assets of the Tenant whilst any liabilities of the Tenant and the Surety to the
Landlord remain outstanding
5. Postponement of participation by Surety in security
50
The Surety 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 an Authorised Guarantee Agreement or to stand in the place of the Landlord in
respect of any such security until all the obligations of the Tenant and the
Surety to the Landlord under this Lease or an Authorised Guarantee Agreement
have been performed or discharged
6. No release of Surety
None of the following or any combination thereof shall release determine
discharge or in any way lessen or affect the liability of the Surety as
principal debtor under this Lease or otherwise prejudice or affect the right of
the Landlord to recover from the Surety to the full extent of this guarantee
(1) any neglect delay or forbearance of the Landlord in endeavoring 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 or an Authorised Guarantee Agreement
(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 reenter the Premises
(3) any extension of time given by the Landlord to the Tenant
(4) any variation of the terms of this Lease (to the extent permitted by
law) or the transfer of the Landlord's reversion or the assignment of this Lease
(5) any change in the constitution structure or powers of either the Tenant
the Surety or the Landlord or the liquidation administration or bankruptcy (as
the case may be) of either the Tenant or the Surety
(6) any legal limitation or any immunity disability or incapacity of the
Tenant (whether or not known to the Landlord) or the fact
51
that any dealings with the Landlord by the Tenant may be outside or in
excess of the powers of the Tenant
(7) any other act omission matter or thing whatsoever whereby but for this
provision the Surety would be exonerated either wholly or in part (other than a
release under seal given by the Landlord)
7. Surrender of Part
In the event of the Tenant surrendering part of the Premises the liability
of the Surety shall continue in respect of the remainder after making any
necessary apportionment's under Section 140 of the Law of Property ▇▇▇ ▇▇▇▇
8. Disclaimer or forfeiture of Lease
(1) The Surety hereby further covenants with the Landlord that:-(a) if a
liquidator or trustee in bankruptcy shall disclaim or
surrender this Lease or an Authorised Guarantee Agreement or
(b) if this Lease shall be forfeited or
(c) if the Tenant shall cease to exist
THEN the Surety shall if the Landlord by notice in writing given to the
Surety within six months after such disclaimer or other event so requires accept
from and execute and deliver to the Landlord a counterpart of a new lease of the
Premises (i) for a term commencing on the date of the disclaimer or other event
and continuing for the residue then remaining unexpired of the Term (ii) at the
rent payable by the Tenant immediately before the disclaimer or other event
("the Old Rent") unless the Rental Value at a Review Date occurring before or
after such disclaimer or other event has not been agreed or determined in
accordance with the provisions of this Lease then the Landlord and the Surety
shall take such steps as are necessary to agree or determine the Rental Value in
accordance with such provisions in which event the rent payable by the Surety
under the new lease shall be whichever is the higher of the Old Rent and the
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Rental Value and (iii)subject to the same covenants conditions and
provisions as are contained in this Lease AND on the grant of such new lease the
Surety shall pay to the Landlord an amount equal to the rents which would have
been paid to the Landlord had the new lease been granted on the date of the
disclaimer or other event
(2) If the Landlord shall not require the Surety to take a new lease the
Surety 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 months therefrom
or until the Landlord shall have granted a lease of the Premises to a third
party and any rent free period thereunder shall have expired (whichever shall
first occur)
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 thereof
10. Severability
For the avoidance of doubt the obligations of the Surety to guarantee any
of the obligations on the part of the Tenant contained in an Authorised
Guarantee Agreement shall be expressly severable from all other obligations of
the Surety contained in this Lease and if and to the extent that any such
obligations are held to be unenforceable at law then this Lease shall be read
and construed as if all references in this Schedule to an Authorised Guarantee
Agreement were omitted
SCHEDULE 5
Authorised Guarantee Agreement
THIS AUTHORISED GUARANTEE AGREEMENT is made the day of 19
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BETWEEN
(1) ("the Landlord")
(2) ("the Assignor")
(3) ("the Assignee")
1. INTERPRETATION
(1) In this Agreement and the Schedule hereto unless there is something in
the subject or context inconsistent therewith the following expressions shall
have the meanings ascribed to them
"the Act" means the Landlord and Tenant (Covenants) ▇▇▇ ▇▇▇▇ and any
enactment for the time being amending or replacing
"the Assignee"
means the party numbered three above and its successors and assigns means
the assignment authorised by the Licence "the Assignment"
"Assignor"
means the party numbered two above means the premises demised by the Lease means
the party numbered one above or other the person or persons for the time being
entitled to the reversion immediately expectant on the determination of the Term
"the Premises" "the Landlord"
means the Lease short particulars of which are set out m the Schedule
hereto and includes any deeds or documents supplemental thereto
"the Lease"
the same
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"the Licence"
means a Licence of even date herewith and made between the same parties as
this Agreement
"the Term"
means the term granted by the Lease
(2) Where the context so requires or admits the masculine includes the
feminine and the singular includes the plural AND where for the time being any
party comprises two or more persons the covenants expressed to be made by such
party shall be deemed to be made by such persons jointly and severally
(3) All references to clauses are to clauses of this Agreement and all
references to the Schedule are to the Schedule to this Agreement
(4) The headings in this Agreement are inserted for convenience only and
shall be ignored in construing this Agreement
2. 'IHE LICENCE
This Agreement is supplemental to the Licence whereby the Landlord granted
to the Assignor licence to assign the Lease to the Assignee on the terms therein
set out and in consideration of the Landlord granting the Licence the Assignor
and the Assignee have agreed to enter into the covenants on their part set out
below
3. COVENANT BY ASSIGNEE
The Assignee hereby covenants with the Landlord that as from the Assignment
and thereafter for the remainder of the Term (unless released from liability
under the Act) the Assignee shall at all times duly observe and perform all the
covenants on the part of the tenant contained in the Lease including the payment
of the rents and all other sums payable under the Lease in the manner and times
therein specified
4. COVENANTS AND INDEMNHY BYTHE ASSIGNOR
The Assignor hereby covenants with the Landlord as a primary obligation and
not merely as guarantor that as from the Assignment and thereafter for the
remainder of the Term (unless released from liability under the Act) the
Assignee or the Assignor shall at all times duly observe and perform all the
55
covenants on the part of the tenant contained in the Lease including the payment
of the rents and all other sums payable under the Lease in the manner and times
therein specified and the Assignor hereby covenants to indemnify 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 Assignee in the performance and
observance of any of its obligations or the payment of any rent or other sums
5. ASSIGNOR JOINTLY AND SEVERALLY LIABLE WITH ASSIGNEE
The Assignor hereby further covenants with the Landlord that as from the
Assignment and thereafter for the remainder of the Term (unless released from
liability under the Act) the Assignor is jointly and severally liable with the
Assignee (whether before or after any disclaimer by a liquidator or trustee in
bankruptcy) for the fulfillment of all the obligations of the Assignee under
this Agreement and agrees that the Landlord in the event of enforcement of its
rights hereunder- may proceed against the Assignor as if the Assignor was named
as the Assignee in this Agreement
6. WAIVER BY ASSIGNOR
The Assignor hereby waives any right to require the Landlord to proceed
against the Assignee or to pursue any other remedy whatsoever which may be
available to the Landlord before proceeding against the Assignor
7. POSTPONEMENT OF CLAIMS BY ASSIGNOR AGAINST ASSIGNEE
The Assignor hereby further covenants with the Landlord that the Assignor
shall not claim in any liquidation bankruptcy composition or arrangement of the
Assignee in competition with the Landlord or claim any set off or counterclaim
against the Assignee in respect of any liability to the Assignee by the Assignor
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 and shall hold for the benefit of the Landlord all
security and rights the Assignor may have over assets of the Assignee
56
whilst any liabilities of the Assignee and the Assignor to the landlord
remain outstanding
8. POSTPONEMENT OF PARTICIP~ON BY ASSIGNOR IN SECURITY
The Assignor 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 Assignee and the Assignor to the Landlord under
the Lease have been performed or discharged
9. NO RELEASE OF ASSIGNOR
None of the following or any combination thereof shall release determine
discharge or in any way lessen or affect the liability of the Assignor as
principal debtor under this Agreement or otherwise prejudice or affect the right
of the Landlord to recover from the Assignor to the full extent of this
guarantee:
(1) any neglect delay or forbearance of the Landlord in endeavoring to
obtain payment of the rents or the 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
(2) any refusal by the Landlord to accept rent tendered by or on behalf of
the Assignee at a time when the Landlord was entitled (or would after the
service of a notice under section 146 of the Law of Property ▇▇▇ ▇▇▇▇ have been
entitled) to re-enter the Premises
(3) any extension of time given by the Landlord to the Assignee
(4) the variation of the terms of the Lease (to the extent permitted by
law) or the transfer of the Landlord's reversion or any further assignment of
the Lease following the Assignment
(5) any change in the constitution structure or powers of either the
Assignee the Assignor or the Landlord or the liquidation
57
administration or bankruptcy (as the case m~ be) of either the
(6) any legal limitation or immunity disability CT 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
(7)any other act omission matter or thing whatsoever whereby but for this
provision the Assignor would be exonerated either wholly or in part (other than
a release by deed given by the Landllord)
10.INVALIDITY OF PROVISIONS
No invalidity of any provision of this Agreement shall in any way vitiate
or affect any other provision of this Agreement
11. SURRENDER OF PART
In the event of the Assignee surrendering part of the Premises the
liability of the Assignor shall continue in respect of the remainder after
making any necessary apportionment's under section 140 of the Law of Property
▇▇▇ ▇▇▇▇
12. DISCLAIMER OF LEASE
The Assignor hereby covenants with the Landlord that if a liquidator or
trustee in bankruptcy shall disclaim the Lease then the Assignor shall if so
required by notice in writing given by the Landlord within six months after such
disclaimer accept from and deliver to the Landlord a counterpart of a new lease
of the Premises (i) for a term commencing on the date of disclaimer and
continuing for the residue then remaining unexpired of the Term (ii) at the rent
payable by the Assignee immediately before the disclaimer ("the Old Rent")
unless the revised rent at a review date occurring before or after such
disclaimer has not been agreed or determined in accordance with the provisions
of the Lease then the Landlord and the Assignor shall take such steps as are
necessary to agree or determine the revised rent in accordance with such
provisions in which event the rent payable by the Assignor under the new lease
shall be whichever shall be the higher of the Old Rent and the revised rent and
(iii) subject to the same covenants and provisions as are
58
contained in the Lease AND on the grant of such new lease the Assignor shall pay
to the Landlord an amount equal to the rents which would have been paid to the
Landlord had the new lease been granted by the Landlord on the date of the
disclaimer
13. BENEFIT OF GUARANTEE
This guarantee shall enure for the benefit of successors and assigns of the
Landlord under the Lease without the necessity for any assignment thereof
SCHEDULE 6
The Kitchen
3 Spray Booths
The Rolling Road
Satellite Dish
EXECUTED (but not delivered until the date inserted herein) as a deed by
affixing the COMMON SEAL of ▇▇▇▇▇▇ INVESTMENT FUND LIMITED in the presence of:
DIRECTOR
SECRETARY
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