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EXHIBIT 10.26
DATED 2000
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TEMPLE PROPERTY HOLDINGS LIMITED
AND
EXULT LIMITED
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AGREEMENT
FOR LEASE OF PROPERTY AT
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇
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▇▇▇▇▇▇▇▇▇ AND MAY
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
TEL NO: ▇▇▇ ▇▇▇▇ ▇▇▇▇
FAX NO: ▇▇▇ ▇▇▇▇ ▇▇▇▇
PR003718981
(DJB/JSYN)
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THIS AGREEMENT is made the day of Two thousand
BETWEEN:
1. TEMPLE PROPERTY HOLDINGS LIMITED (registered in England number 3897915)
whose registered office is at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
2. EXULT LIMITED (registered in England number 3821294) whose registered
office is at ▇▇-▇▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
AND INCORPORATES the Standard Conditions of Sale (Third Edition) insofar as they
are applicable to an agreement for lease and are not inconsistent with its
express terms.
IT IS AGREED as follows:
1. INTERPRETATION
1.1 In this Agreement, except where the context otherwise requires, the
following words and expressions have the following meanings:
"AGREEMENT FOR LEASE" means the agreement dated 31st March, 2000 made
between the Superior Landlord (1) the Landlord (2) and ▇.▇. ▇▇▇▇▇▇ and
Others (3);
"THE COMPLETION DATE" means whichever is the latest of:
(A) the third working day after the date the Superior Landlord's
licence to the proposed Underlease is obtained; and
(B) the third working day after the date the authorisation is obtained
to exclude in relation to the proposed Underlease the provisions
of sections 24 to 28 of the Landlord and ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇;
"THE DOCUMENTS" means the Underlease and the Licence for Alterations;
"THE EXTRACT RISER WORKS" means such of the works set out in the
specification at ANNEXURE 4 as require access to and egress from the
Property including the erection and decoration of the new riser cupboard
and the making good and decoration of the ceilings, floors and walls;
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"THE LANDLORD" means the first named party to this Agreement which
expression shall, where the context so admits, include its successors in
title and assigns of its interest under the Superior Lease;
"LANDLORD'S WORKS" means the works to be carried out by the Landlord at
its own expense to fit out part of the building at ▇▇ ▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇;
"LICENCE FOR ALTERATIONS" means the draft licence for alterations at
ANNEXURE 2 permitting the carrying out of the Tenant's Fitting Out
Works;
"THE PROPERTY" means ▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ as more
particularly described in and demised by the Underlease;
"RENT COMMENCEMENT DATE" means 5th December, 2000;
"RENT DEPOSIT DEED" means the draft rent deposit deed at ANNEXURE 3;
"SUPERIOR LANDLORD" means Hammerson UK Properties Plc and its successors
and assigns;
"SUPERIOR LEASE" means the lease dated 1st September, 2000 made between
the Superior Landlord (1) the Landlord (2) and ▇▇ ▇▇▇▇▇▇ and others (3);
"THE TENANT" means the second named party to this Agreement;
"TENANT'S FITTING OUT WORKS" means the works to be carried out by the
Tenant at its own expense to fit out the Property for use and
occupation;
"THE UNDERLEASE" means the draft underlease at ANNEXURE 1;
1.2 In this Agreement, unless otherwise specified:
(A) references to Standard Conditions are references to the several
conditions of the Standard Conditions of Sale (Third Edition);
(B) any reference to a clause is a reference to a clause of this
Agreement and any reference to a sub-clause is a reference to a
sub-clause of the clause in which the reference appears;
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(C) headings to clauses are for convenience only and do not affect
the interpretation of this Agreement; and
(D) words and expressions unless otherwise stated have the meanings
given to them in the Underlease.
2. AGREEMENT FOR LEASE
2.1 The Landlord will grant and the Tenant will accept an underlease of the
Property in the form of the Underlease.
2.2 The Property is let with vacant possession on completion.
2.3 The Landlord may not be required to grant the proposed Underlease except
to the Tenant.
3. SUPERIOR LANDLORD'S LICENCE
3.1 This Agreement is subject to the Superior Landlord's licence being
obtained to the grant of the proposed Underlease.
3.2 The Tenant is to provide promptly such references, information and
assistance as the Landlord or the Superior Landlord reasonably require
to enable the Superior Landlord to consider the application for such
licence.
3.3 Without being required to issue proceedings, the Landlord is to use all
reasonable endeavours to obtain such licence at its own expense and the
Tenant is to join in the licence if required by the Superior Landlord to
covenant to observe and perform the lessee's covenants in the proposed
Underlease and the Superior Lease. For the avoidance of doubt, the
Tenant shall not be required to post any security with the Superior
Landlord as a condition of obtaining the licence.
3.4 Unless it is in breach of its obligations in this clause, either party
may by notice in writing to the other determine this Agreement where the
Superior Landlord's licence has not been obtained by the date which is
three months after the date of this Agreement without prejudice to the
rights of either party in respect of any prior breach of either of the
parties obligations under this Agreement.
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4. EXCLUSION ORDER
4.1 This Agreement is also subject to a court of competent jurisdiction
authorising an agreement excluding in relation to the proposed
Underlease the provisions of sections 24 to 28 of the Landlord and
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇.
4.2 The Landlord and the Tenant shall make and diligently pursue a joint
application (and if necessary re-apply) to the court for such
authorisation.
4.3 Unless it is breach of its obligations in this clause, either party may
by notice in writing to the other rescind this Agreement forthwith where
the authorisation has not been obtained by the date which is three
months after the date of this Agreement whereupon this agreement will
immediately determine but without prejudice to the rights of either
party in respect of any prior breach of any of the parties' obligations
under this agreement.
5. TITLE
Before the date of this Agreement, the Tenant has been supplied with a
copy of the Superior Lease and a copy of the entries on the register at
H.M. Land Registry of Title No. NGL757840 as at 2nd February, 2000
relating to the Superior Landlord's title to the Property and the Tenant
accepts such title without any further enquiry or requisition.
6. INCUMBRANCES
6.1 The Property is let subject to:
(A) the matters contained or referred to in or affecting the title
to the Property produced or deduced to the Tenant prior to the
date hereof except for entries or other charges to secure
monies;
(B) all matters capable of registration as local land charges or
otherwise whether registered or not;
(C) all notices served and proposals, requirements or agreements
made (whether or not subject to confirmation) by or (as the case
may be) with any competent authority or arising under statute
other than in respect of matters
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which are properly the responsibility of the Landlord under this
Agreement;
(D) all matters in the nature of overriding interests as set out in
section 70(1) of the Land Registration Act 1925 as amended;
(E) all matters disclosed or which might reasonably be expected to
be disclosed by searches and enquiries made by or on behalf of
the Tenant or which a prudent lessee ought to make other than as
aforesaid.
7. PUBLIC REQUIREMENTS
7.1 The Property is let subject to and the Tenant is to indemnify the
Landlord against all public requirements and all matters registered or
capable of being registered with any local or other competent authority
at the date of this Agreement or at completion.
7.2 The Tenant takes the Property with full notice of the use or development
for which permission has been granted and accepts the position without
any further enquiry or requisition.
8. LICENCE TO OCCUPY
8.1 If the Landlord at the request of the Tenant permits the Tenant to
occupy the Property before actual completion then as from the date of
such occupation until it comes to an end the Tenant:
(A) is not to occupy the Property otherwise than as the licensee of
the Landlord;
(B) is not to permit any third party other than its fit-out
contractors to use or occupy the Property;
(C) is to pay or indemnify the Landlord against all outgoings and
other expenses in respect of the Property and all services
consumed by the Tenant at the Property which the Tenant would
have been liable to pay under the Underlease had the Underlease
been completed;
(D) is to comply with all statutory provisions in respect of the
Property;
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(E) is to pay the Landlord on demand a fee at the same annual rate
as the rents referred to in the Underlease (but nothing in
respect of the rent first reserved thereunder until 5th
December, 2000);
(F) is to perform and observe the covenants and conditions contained
in the Underlease as if a lease in the form of the Underlease
had been granted so far as the same may be applicable to the
permission to occupy;
(G) is not to carry out any work to the Property other than in
accordance with CLAUSE 11 of this Agreement and with the
Landlord's express written approval;
(H) is not to do or permit or suffer anything which may cause the
Superior Landlord's insurance of the Property to be vitiated or
the insurance monies withheld in whole or in part; and
(I) is to procure that no advertising hoardings, boards or signs are
to be placed on or around the Building (as defined in the
Underlease) by its contractors or in respect of its own
occupation.
8.2 The permission to occupy will come to an end on actual completion or on
not less than seven working days' notice from the Landlord if:
(A) any of the circumstances occur which would entitle the Landlord
to terminate this Agreement whether or not it does so;
(B) this Agreement is rescinded; or
(C) completion of the proposed Underlease does not take place on the
Completion Date by reason of the Tenant's default.
8.3 Upon the permission to occupy coming to an end otherwise than by actual
completion, the Tenant is forthwith to vacate the Property.
8.4 Any work carried out to the Property by the Tenant or at its request
before actual completion is at the sole risk and expense of the Tenant
and the Tenant is to indemnify the Landlord against the reasonable and
proper expense of reinstating the
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Property should the Landlord require the Property to be reinstated if:-
(A) completion does not take place on or before the Completion Date
otherwise than by reason of the Landlord's default; or
(B) the Superior Landlord refuses consent in accordance with the
terms of the Superior Lease (whether or not the Underlease has
been granted).
9. COMPLETION
9.1 Completion of the Underlease and the Rent Deposit Deed is to take place
on the Completion Date upon which the Tenant will pay to the Landlord
the sum of four hundred and ninety thousand pounds (L490,000) in
accordance with the Rent Deposit Deed.
9.2 Apportionments are to be made with effect from the Completion Date
except where completion is delayed by reason of the Tenant's default and
the Landlord elects that they should be made from actual completion.
10. THE UNDERLEASE
10.1 The term of the Underlease is to commence on 13th June, 2000.
10.2 The liability to pay the yearly rent reserved by the Underlease
(excluding, for the avoidance of doubt, the service charge and insurance
rent which shall be payable from the date of the Tenant's occupation
pursuant to CLAUSE 8 of this Agreement) is to commence upon the Rent
Commencement Date.
11. TENANT'S FIT OUT WORKS
11.1 The Landlord will as soon as reasonably practicable provide the carpet
in the quantity supplied to the Landlord by the Superior Landlord
pursuant to CLAUSE 13.6 of the Agreement for Lease in the colour option
notified by the Tenant to the Landlord for the floor of the Property and
the Tenant will, at its own cost, install the carpet in a good and
workmanlike manner to the reasonable satisfaction of the Landlord and in
accordance with the provisions of this CLAUSE 11.
11.2 The Landlord shall provide to the Tenant as soon as reasonably
practicable after receiving the same from the Superior Landlord, such
information relating to the Property as the Tenant may
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reasonably require in order to plan and design and tender the Tenant's
Fitting Out Works.
11.3 The Tenant may provide to the Superior Landlord and the Landlord for
their approval (in each case such approval not to be unreasonably
withheld) plans, specifications and such other information as the
Superior Landlord and/or the Landlord shall reasonably require in
relation to the whole or parts of the Tenant's Fitting Out Works and the
Landlord shall consider such parts for approval without requiring the
submission of such information in relation to the whole of the Tenant's
Fitting Out Works but the Tenant shall not commence any part of the
Tenant's Fitting Out Works until the details in relation to such part
have been approved by the Landlord and the Superior Landlord in writing
(and in the case of the Landlord, such consent not to be unreasonably
withheld or delayed).
11.4 If not granted by the commencement of the Tenant's Fitting Out Works, on
carrying out the Tenant's Fitting Out Works the Tenant will comply with
the obligations of the tenant in the Licence for Alterations as if it
had been granted.
11.5 As soon as practicable after completion of the relevant Tenant's Fitting
Out Works (and in any event on completion of the Licence for
Alterations) the Tenant will deliver to the Superior Landlord and the
Landlord at its own cost:
(A) two complete sets of the final "as-built" scale drawings of the
relevant Tenant's Fitting Out Works and one set of DXF files on
computer disk or in such other format as the Superior Landlord
and/or the Landlord reasonably requests and as can be produced
at no material additional cost to the Tenant;
(B) a complete reproduceable set of "as-built" scale drawings of the
mechanical, electrical and other installations and services of
the Tenant's Fitting Out Works and one set of DXF files (or such
other format as the Superior Landlord and/or the Landlord
reasonably requires and as can be produced at no material
additional cost) on computer disk showing the same;
(C) one copy of the proposed entries in the Health and Safety file
for the Property in respect of the Tenant's Fitting Out Works
together with a copy on optical disk;
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(D) a schedule listing the names and addresses of all contractors
and principal subcontractors and suppliers who have been
involved in or concerned with the Tenant's Fitting Out Works.
11.6 Subject to the grant by the Superior Landlord, the Landlord will grant
and the Tenant will take up and execute the Licence for Alterations.
11.7 Subject to:-
(A) receipt from the Tenant of all plans, specifications and other
information which the Landlord and/or the Superior Landlord may
reasonably require; and
(B) the carrying out and completion of the Tenant's Fitting Out
Works not resulting in the Landlord being in breach of the terms
of the Superior Lease;
then, without being required to issue proceedings, the Landlord is to
use all reasonable endeavours to obtain the Licence for Alterations
(with the costs of the Superior Landlord being the responsibility of the
Tenant).
12. TERMINATION
The Landlord or Tenant may terminate this Agreement forthwith without
prejudice to accrued rights of action if:
(A) the other party fails to comply with any of its obligations
under this Agreement within fourteen working days of being
notified in writing of such non-compliance by the party not in
default; or
(B) (in the case of the Landlord only) any event happens which would
entitle the Landlord to re-enter upon the Property in accordance
with the terms of the Underlease (whether or not after notice)
if the proposed Underlease had actually been granted.
13. INTEREST
If so required and without prejudice to the Landlord's other remedies,
the Tenant is to pay to the Landlord interest (as well after as before
after any judgment) at the contract rate on sums becoming due under this
Agreement (whether or not formally
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demanded) and not paid within ten working days of their becoming due
from the date they become due down to the date of payment.
14. SET-OFF
All amounts payable by the Tenant under this Agreement are to be paid in
full free from all set-off claims, counterclaims or demands without any
deduction, withholding, restriction or condition.
15. ACKNOWLEDGEMENT
15.1 The Tenant acknowledges that:
(A) it enters into this Agreement on the basis of the replies of the
relevant authorities to its enquiries;
(B) it has carried out its own survey and inspection of the Property
and formed its own view as to its suitability for the Tenant's
purposes;
(C) the Landlord's written replies to formal preliminary enquiries
raised through the Landlord's solicitors are the only authorised
statements by or on behalf of the Landlord made in connection
with the proposed Underlease; and
(D) it enters into this Agreement on the basis of the replies to the
enquiries provided to the Landlord by the Superior Landlord and
the letter of reliance in favour of the Tenant from the Superior
Landlord's solicitors.
15.2 Nothing contained or implied in this Agreement shall be or be taken to
be and there is expressly excluded any representation, warranty or
undertaking by or on behalf of the Landlord in relation to the Property
or its fitness for the Tenant's or any other purpose.
15.3 The parties acknowledge that this Agreement constitutes the entire
agreement between the parties concerning its subject matter and has set
out in it or incorporates all the terms which the parties have expressly
agreed so that any agreement or arrangement entered into
contemporaneously is collateral to it and is not part of it.
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16. NOTICES
16.1 Any demand or notice to be served on any party under this Agreement will
be validly served if sent by first class post addressed to that party
and if there is more than one of them to any of them at the persons
registered office address (as recorded for the time being at Companies
House) if it is a company or at its last known address or at the address
given in this Agreement.
16.2 Any demand or notice sent by post will be conclusively treated as having
been served 48 hours after posting.
16.3 The provisions for postal service set out above are not to prevent any
other effective form of service.
17. EXTRACT RISER
17.1 Subject to CLAUSE 17.2, the Tenant permits the Landlord (and those
authorised by the Landlord) access to the Property at all reasonable
times as well after the grant of the Underlease as before to carry out
the Extract Riser Works such works to be carried out at the Landlord's
cost in a good and workmanlike manner using good quality materials and
in accordance with all necessary consents, the Construction (Design
Management) Regulations 1994 and statute or other legislation for the
time being in force.
17.2 During the carrying out of the Extract Riser Works and the Landlord's
Works the Landlord will (or will procure as the case may be):-
17.2.1 that the minimum possible inconvenience disturbance or nuisance is
caused to the Tenant; and
17.2.2 that the minimum possible damage to the Property and the Tenant's
property or equipment at the Property is caused and will as soon as
reasonably practicable make good any damage to the Tenant's reasonable
satisfaction.
17.3 The parties shall procure that their respective contractors liase with
each other in order to co-ordinate the carrying out of the Extract Riser
Works, the Landlord's Works and the Tenant's Fitting Out Works and to
minimise the impact on each other's programme for execution of the
respective works.
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18. FURTHER WORKS
18.1 The Tenant permits the Landlord and the Superior Landlord and those
persons authorised by either of them unrestricted access to the Property
as well after the grant of the Underlease as before to carry out the
works contemplated by this clause.
18.2 The Landlord shall use reasonable endeavours to procure that the
snagging items identified in the schedule at ANNEXURE 5 affecting the
Property or the Common Parts (as defined in the Underlease) are
rectified as soon as reasonably practicable.
18.3 During the Defects Period (as defined in the Agreement for Lease) if the
Tenant notifies the Landlord of any defects appearing in the Property
the Landlord shall notify the Superior Landlord in accordance with
CLAUSE 8.1 of the Agreement for Lease of such defects and shall use
reasonable endeavours to procure that the Superior Landlord makes good
such defects as appear on the schedule of defects prepared by the
architect pursuant to CLAUSE 8.1 of the Agreement for Lease in
accordance with CLAUSE 8.2 of the Agreement for Lease.
18.4 In the carrying out of its obligations pursuant to CLAUSE 18.2 and 18.3
of this Agreement the Landlord shall use all reasonable endeavours to
procure that the Superior Landlord has regard to the Tenant's programme
for the carrying out of the Tenant's Fitting Out Works and uses
reasonable endeavours to procure that (insofar as practicable) any
remedial works to be performed shall be carried out in a manner so as
not to interfere materially with the carrying out of the Tenant's
Fitting Out Works.
19. NON-MERGER
The Landlord's and Tenant's obligations under this Agreement shall
continue notwithstanding the grant of the Underlease insofar as they
remain to be performed and observed.
20. RESOLUTION OF DISPUTES
If there shall be any dispute between the parties arising out of or in
connection with this Agreement it may be referred by either party to an
independent chartered surveyor agreed upon between the parties or
nominated on the application of either party by the President for the
time being of the Royal Institution of Chartered Surveyors or (his duly
appointed
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deputy) for determination and the said surveyor shall act as an
arbitrator in accordance with the Arbitration ▇▇▇ ▇▇▇▇.
21. INDEMNITY
In respect of any indemnity given by the Tenant to the Landlord, the
Landlord covenants to give the Tenant notice of any claims made under
any insurance policy, not to admit liability, settle, adjust or
compromise any such claim without giving the Tenant a reasonable period
in which to make representations in respect thereof.
22. CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
The parties to this Agreement do not intend that any term of this
Agreement is to be enforceable, by virtue of the Contracts (Rights of
Third Parties) ▇▇▇ ▇▇▇▇, by any person who is not a party to this
Agreement.
23. STANDARD CONDITIONS
In the Standard Conditions:
(A) "clearing bank" means Barclays Bank PLC, Lloyds TSB Bank PLC,
HSBC Bank PLC or National Westminster Bank PLC;
(B) the "contract rate" means 4 per centum per annum over the base
lending rate from time to time of National Westminster Bank PLC;
and
(C) General Conditions 2.2, 3.1.1, 3.1.2, 4.3.2, 4.5, 5.1.1, 5.1.2,
5.1.3, 5.2, 6.3.2, 6.8.4, 7.3, 8.1.3 and 8.2.4 shall not apply.
AS WITNESS the parties or the duly authorised representatives of the parties
have signed this Agreement the day and year first before written.
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Signed for and on behalf )
of the Tenant )
)
by )
)
Signed for and on behalf )
of the Landlord )
)
by )
)
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ANNEXURES
Annexure 1 - Underlease
Annexure 2 - Licence for Alterations
Annexure 3 - Rent Deposit Deed
Annexure 4 - Extract Riser Works
Annexure 5 - Snagging List
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DATED 2000
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TEMPLE PROPERTY HOLDINGS LIMITED
AND
EXULT LIMITED
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COUNTERPART
UNDERLEASE
▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇
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▇▇▇▇▇▇▇▇▇ AND MAY
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
REF: DJB/JSYN
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PARTICULARS
DATE 2000
NEW OR OLD TENANCY The tenancy created by this Underlease is a new
tenancy for the purposes of the Landlord and Tenant
(Covenants) ▇▇▇ ▇▇▇▇.
LANDLORD TEMPLE PROPERTY HOLDINGS LIMITED (Co. Reg. No.
3821294)
Registered Office ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
TENANT EXULT LIMITED (Co Reg No 3897915)
Registered Office ▇▇-▇▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
PREMISES The Sixth Floor of the Building as shown edged red
on the Plans.
BUILDING ▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇
TERM GRANTED 10 years from and including the Term Commencement
Date.
TERM COMMENCEMENT DATE 13 June 2000.
RENT Four hundred and thirty one thousand nine hundred
and forty one pounds (pound sterling)431,941) per
annum, subject to review.
RENT COMMENCEMENT DATE 5th December 2000.
RENT REVIEW DATE 13th June 2005.
SERVICE CHARGE The service charge payable pursuant to the terms of
the Superior Lease.
INTEREST RATE 3 percent over the HSBC Bank plc Base Rate.
PERMITTED USE Offices within Use Class B1(a) of the Town and
Country Planning (Use Classes) Order 1987.
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DATE 2000
PARTIES
(1) TEMPLE PROPERTY HOLDINGS LIMITED (incorporated and registered in England
and Wales under company number 3897915), the registered office of which
is at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇; and
(2) EXULT LIMITED (incorporated and registered in England and Wales under
company number 3821294), the registered office of which is at ▇▇-▇▇
▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇.
IT IS AGREED AS FOLLOWS:
1. DEFINITIONS
In this Underlease the following definitions apply:
"BASE RATE"
means the base rate from time to time of HSBC Bank plc, or if
that rate is no longer published then the rate of interest which
the Landlord reasonably considers to be most closely comparable
to minimum lending rates generally applicable in the UK from
time to time;
"BUILDING"
means ▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ and all Service Media on, over
or under such land, and Service Media outside such land but
exclusively serving it (excluding, in both cases, any Service
Media which are not owned by the Superior Landlord);
"COMMON PARTS"
means the management office, main reception, stairways,
landings, corridors, lifts, lavatories, refuse areas, and other
internal areas of the Building other than the Premises or the
Offices and the deliveries areas, car park and other means of
access to the Offices and other external areas of the Building;
"GROUP"
means a group of companies within the meaning of section 42 of
the Landlord and ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇;
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"INSURANCE RENT"
means the sum payable to the Superior Landlord pursuant to
CLAUSE 7.1.2 of the Superior Lease;
"INSURED RISKS"
means any risk against which the Superior Landlord insures
pursuant to the terms of the Superior Lease.
"INTEREST RATE"
means 3 percent over the Base Rate;
"LANDLORD"
means the first party to this deed and its successors in title
and persons entitled to the reversion immediately expectant on
the termination of this Underlease;
"THIS UNDERLEASE"
means this deed as varied or supplemented by any Supplemental
Document;
"OFFICES"
means the parts of the Building (other than the Premises) which
are intended for letting on the basis of a demise similar in
nature to the Premises, or which are let;
"PERMITTED PART"
means any part of the Premises which is by its nature capable of
being separately let and provided that at no time shall there be
more than two occupiers at the Premises disregarding common
parts and treating the Tenant and each tenant of a Permitted
Part and persons with whom it is entitled to share occupation in
each case as a single occupier for this purpose;
"PERMITTED USE"
means offices within Use Class B1(a) of the Town and Country
Planning (Use Classes) Order 1987 (as at the date that Order
first came into force);
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"PLANS"
means the plans annexed to this deed;
"PLANNING ACTS"
means the Town and Country Planning ▇▇▇ ▇▇▇▇, the Planning
(Listed Building and Conservation Areas) ▇▇▇ ▇▇▇▇, the Planning
(Hazardous Substances) ▇▇▇ ▇▇▇▇ and the Planning and
Compensation ▇▇▇ ▇▇▇▇;
"PREMISES"
means:
The ▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ of the Building as
shown for identification only edged red on the Plans bounded by
and including:
(a) the interior plaster and other finishes of the external
walls of such premises and the walls dividing the
Building from other property (but excluding any other
part of such wall(s);
(b) the inner half of the non-load-bearing internal walls
dividing such premises from other parts of the Building
(but excluding any other part of such walls);
(c) the interior plaster and other finishes of the internal
load-bearing walls dividing such premises from other
parts of the Building (but excluding any other part of
such walls);
(d) the flooring, raised floors any voids beneath them down
to and including the floor screeds but excluding the
joists floor slabs or other structures supporting such
flooring;
(e) the suspended or false ceilings and any voids above them
up to and including the finishes on the underside of the
ceiling slabs but excluding the ceiling slabs,
and including:
(f) the whole of any non-load-bearing walls, columns and
partitions within such premises;
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(g) the interior plaster and other finishes of load-bearing
walls and columns within such premises (but excluding
any other part of such walls and columns);
(h) the doors and windows and door and window frames and
fittings at such premises;
(i) landlord's fixtures from time to time within such
premises, but if those fixtures are Service Media then
only if they fall within PARAGRAPH (j) below;
(j) Service Media within and from time to time exclusively
serving such premises and which are owned by the
Superior Landlord (but excluding any other Service
Media);
and comprising the following square footage: 8906;
"QUARTER DAYS"
means 25 March, 24 June, 29 September and 25 December in each
year;
"REINSTATEMENT SPECIFICATION"
means the specification annexed hereto or in the event that
materials listed in the specification are not reasonably
available from time to time at reasonable cost or are not
appropriate for use then reference to such materials will be
substituted by reference to materials of no less quality which
perform a similar function;
"RENT"
means four hundred and thirty one thousand nine hundred and
forty one pounds (pound sterling)431,941) per annum as reviewed
under this Lease;
"RENT COMMENCEMENT DATE"
means 5th December 2000;
"REVIEW DATE"
means 13th June 2005;
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"SERVICE CHARGE BALANCE"
means the sum payable to the Superior Landlord pursuant to
CLAUSE 7.1.3 of the Superior Lease;
"SERVICE CHARGE ESTIMATE"
means the sum in respect of the Service Charge Estimate (as
defined in the Superior Lease) payable to the Superior Landlord
pursuant to CLAUSE 7.1.1 of the Superior Lease;
"SERVICE MEDIA"
means conduits and equipment used for the reception, generation,
passage and/or storage of Utilities and all fire alarms, smoke
detectors, sprinklers, dry risers, security cameras and closed
circuit television apparatus;
"STRUCTURAL PARTS"
means all parts of the Building other than the Common Parts, the
Offices and the Premises;
"SUPERIOR LANDLORD"
means the person entitled for the time being to the reversion
expectant upon the determination of the Superior Lease;
"SUPERIOR LEASE"
means the Superior Lease dated 1st September 2000 and made
between (1) Hammerson UK Properties Plc (2) the Landlord and (3)
▇.▇. ▇▇▇▇▇▇ and others under which the Landlord holds the
Premises for a term of 25 years;
"SUPPLEMENTAL DOCUMENT"
means any deed, agreement, licence, memorandum or other document
which is supplemental to this deed;
"SURVEYOR"
means an independent chartered surveyor appointed jointly by the
Landlord and the Tenant or, if they do not agree on the identity
of such surveyor, by the President of the Royal Institution of
Chartered Surveyors (or any other officer authorised to carry
out that function) on the application of either the Landlord or
the Tenant in accordance with this Underlease;
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"TENANT"
means the second party to this deed and its successors in title;
"TERM"
means the term of years created by this deed;
"TERM COMMENCEMENT DATE"
means 13th June 2000;
"UTILITIES"
means electricity, gas, water, foul water and surface drainage,
heating, ventilation and air-conditioning, smoke and fumes,
signals, telecommunications, satellite and data communications
and all other utilities;
"VAT"
means value added tax payable by virtue of the Value Added Tax
▇▇▇ ▇▇▇▇;
"WORKING DAY"
means any day (other than Saturday) on which banks are usually open for
business in England and Wales.
2. INTERPRETATION
2.1 In this Underlease:
2.1.1 the table of contents and clause headings are for reference only
and do not affect its construction;
2.1.2 the words "include" and "including" are deemed to be followed by
the words "without limitation";
2.1.3 general words introduced by the word "other" do not have a
restrictive meaning by reason of being preceded by words
indicating a particular class of acts, things or matters, and
2.1.4 obligations owed by or to more than one person are owed by or to
them jointly and severally.
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2.2 In this Underlease, unless otherwise specified:
2.2.1 a reference to legislation is a reference to all legislation
having effect in the United Kingdom at any time during the Term,
including directives, decisions and regulations of the Council
or Commission of the European Union having the force of law, and
Acts of Parliament and orders, regulations, consents, licences,
notices and bye-laws made or granted under any Act of Parliament
or any such directive, decision or regulation of the Council or
Commission of the European Union, or made or granted by a local
authority or by a court of competent jurisdiction;
2.2.2 a reference to particular legislation is a reference to that
legislation as amended, consolidated or re-enacted from time to
time and to all subordinate legislation made under it from time
to time;
2.2.3 a reference to a person includes an individual, corporation,
company, firm, partnership or government body or agency, whether
or not legally capable of holding land; and
2.2.4 a reference to a clause is a reference to a clause or sub-clause
of this Underlease.
2.2.5 any reference to costs which are or may be payable by the Tenant
(including the cost of registration of any completed
transaction) shall include but not be limited to all reasonable
and proper legal costs, surveyors' and architects' fees, and
other reasonable and proper professional fees and all other
expenditure incidental thereto or attendant thereon incurred by
the Landlord on its own account or where required by the
Superior Landlord;
2.2.6 reference to any right exercisable by the Landlord or any right
exercisable by the Tenant in common with the Landlord shall be
construed as including (where appropriate) the exercise of such
right:-
(a) by the Superior Landlord and any mortgagee of the
Landlord or the Superior Landlord and all persons
authorised by them, and
(b) in common with all other persons having a like right;
and
2.2.7 reference to any consent or approval required from the Landlord
shall be construed as also including a requirement to obtain the
consent or approval of the Superior Landlord where the Superior
Landlord's consent or approval would be required under the terms
of the Superior Lease except that nothing herein shall be
construed as imposing on the Superior Landlord any obligation
(or indicating that such an obligation is imposed on the
Superior
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Landlord by the terms of the Superior Lease) not unreasonably to
refuse any such consent or approval.
2.3 In this Underlease.
2.3.1 an obligation of the Tenant not to do something includes an
obligation not to cause or allow that thing to be done;
2.3.2 a reference to any act or to any act or omission of the Tenant
includes any act or any act or omission of any other person at
the Premises or the Building with the Tenant's express or
implied authority which for this purpose shall not include the
Landlord its servants agents or licensees;
2.3.3 the rights of the Landlord under any clause are without
prejudice to the rights of the Landlord under any other clause
or Supplemental Document or other instrument entered into in
connection with this Underlease;
2.3.4 the obligations of or restrictions on the Tenant under any
clause, Supplemental Document or other instrument entered into
in connection with this Underlease, are without prejudice to the
obligations of or restrictions on the Tenant, or to the rights
of the Landlord under any other clause, Supplemental Document or
other instrument entered into in connection with this
Underlease;
2.3.5 a reference to the consent or approval of the Landlord means the
prior consent in writing of the Landlord, signed by or on behalf
of the Landlord;
2.3.6 references to the end of the Term are to the end of the Term
whether before, at or after the end of the term of years granted
by this Underlease;
2.3.7 references to a fair proportion of any sum are to the whole or a
proportion of that sum which is fair and reasonable to be
determined by arbitration in case of dispute;
2.3.8 the perpetuity period is 80 years from the date of this deed;
2.3.9 where a sum is expressed to be payable on demand, it will become
payable, unless otherwise specified, five Working Days after the
demand has been made; and
2.3.10 unless otherwise specified, references to the Premises and the
Building include any part of the Premises or the Building.
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2.4 In relation to any indemnity in this Underlease by the Tenant to the
Landlord:
2.4.1 as soon as reasonably possible after the Landlord shall in good
faith consider that any such claim would be the subject of such
indemnity to give notice in writing to the Tenant of any claim
brought or made or threatened to be brought or made against the
Landlord; and
2.4.2 not to admit liability, settle, adjust or compromise any such
claim without first notifying the Tenant and (save to the extent
that it is impossible or impractical so to do) giving the Tenant
a reasonable period within which to make representations in
respect thereof and giving due consideration to any such
representation.
3. GRANT AND TERM
The Landlord leases the Premises to the Tenant for a term of ten years
from and including the Term Commencement Date expiring on and including
12 June 2010, the Tenant paying the following sums, which are reserved
as rent: the Rent, the Service Charge Estimate, the Insurance Rent, the
Service Charge Balance, the Second Service Charge Rent (as defined in
the Second Schedule) and any VAT payable on those sums and any interest
due under this Underlease.
4. RIGHTS GRANTED
4.1 The following rights are granted by the Landlord to the Tenant:
4.1.1 the right to enter and exit from the Premises over the Common
Parts;
4.1.2 the right to have the name of the Tenant (or other permitted
occupier(s)) displayed on a name board to be provided by the
Superior Landlord in the ground floor reception area of the
Building in a style approved by the Superior Landlord and the
Landlord in each case such approval not to be unreasonably
withheld;
4.1.3 the right to display a sign at the entrance to the Premises
showing the names of the Tenant and any other permitted
occupiers and any companies having their registered office at
the Premises in a style approved by the Landlord such approval
not to be unreasonably withheld;
4.1.4 the right to use the lavatories on the Common Parts;
4.1.5 the right to use the refuse areas on the Common Parts;
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4.1.6 the right to use the Service Media forming part of the Building
which serve, but do not form part of, the Premises;
4.1.7 the right to enter other parts of the Building in order to carry
out any repairs to the Premises, but only if those repairs
cannot reasonably be carried out without such entry, and subject
to the Tenant complying with CLAUSE 4.3;
4.1.8 the right of support and protection from the rest of the
Building to the extent existing at the date of this deed;
4.1.9 the right to install, repair, replace, inspect and use such
plant and machinery on the roof space shown edged red on the
Plans as the Tenant may reasonably require having regard to the
requirements of the other occupiers in the Building in
connection with the proper use of the Premises;
4.1.10 the right to construct, repair, replace, inspect and use such
Service Media as the Tenant shall require in connection with the
proper use of the Premises running between the different parts
of the Building such Service Media to be constructed in the
appropriate risers and ducts within the Building and in such a
way as shall be approved by the Landlord such approval not to be
unreasonably withheld or delayed;
4.1.11 the right to pass and ▇▇▇▇▇▇ at all times with or without
vehicles over and upon those parts of Green ▇▇▇▇▇▇ Court as are
coloured ▇▇▇▇▇ on the plan attached to the transfer dated 12
December 1997 and made between Railtrack plc (1) and Barclays
Bank plc (2); and
4.1.12 the right granted in a deed of easement dated 22 January 1998
and made between Ludgate Management Limited (1) Barclays Bank
plc (2) Railtrack PLC (3) and BLCT (2777) Limited (4) subject to
the terms and conditions of that deed and in the event that the
Superior Landlord requests the Landlord's consent to terminate
the rights pursuant to clause 6.2 of that deed, the Landlord
shall not give consent without obtaining the agreement of the
Tenant that reasonably suitable alternative access to the
western side of the Building has been obtained.
4.2 The rights granted by CLAUSE 4.1:
4.2.1 are granted only to the extent that the Landlord has power to
grant them at the date of this Underlease;
4.2.2 save where indicated otherwise are not granted to the Tenant
exclusively, but are to be used in common with the Landlord, any
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other tenants and lawful occupiers of the Building, and other
persons authorised by them;
4.2.3 may be interrupted or temporarily varied for the purposes of any
works of maintenance, repair, alteration or the replacement of
any building, lifts or lift equipment or Service Media in
connection with which the rights are exercised provided that
save in emergency reasonable prior notice is given and
reasonably suitable alternative arrangements are made available;
4.2.4 are to be exercised by the Tenant, and any authorised
undertenant, in accordance with any reasonable regulations which
the Landlord may make for the proper management of the Building;
and
4.2.5 in the case of the rights referred to in CLAUSE 4.1.11 and
4.1.12 will last only until such time as any land over or
through which they are exercised is adopted or acquired by a
third party for the purposes of providing the relevant facility
to the general public.
4.3 The right granted by CLAUSE 4.1.7 is granted subject to the
conditions that the Tenant may, except in cases of emergency, only
exercise that right after having given reasonable prior written
notice to the occupier of the relevant other property, the Superior
Landlord and the Landlord, and in any event on the conditions that:
4.3.1 it is exercised in a manner which causes as little inconvenience
as reasonably practicable to the occupier of the other property;
and
4.3.2 the person exercising that right shall immediately make good any
damage caused to that other property and to any items belonging
to the Superior Landlord, the Landlord, the tenant or the
occupier of the other property which are at the other property;
and the Tenant shall ensure that the person exercising that right
complies with the terms of this CLAUSE 4.3.
4.4 Nothing contained or referred to in this Underlease will confer on,
or grant to, the Tenant any right, easement or privilege other than
those which are set out in CLAUSE 4.1 and section 62 of the Law of
Property Act 1925 will not apply to this Underlease.
4.5 Nothing contained or referred to in this Underlease entitles the
Tenant to the benefit of, or the right to enforce, or to prevent the
release or modification of any agreement entered into by any other
tenant or occupier of the Building or any other tenant of the
Landlord.
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5. RIGHTS RESERVED AND REGRANTED
5.1 The following rights are reserved from this Underlease to the
Superior Landlord and the Landlord:
5.1.1 the right to build, or carry out works, to any other part of the
Building or to raise the height of the Building, even if such
building or works lessen the access of light or air to the
Premises or causes any nuisance, damage or inconvenience to the
Tenant or other occupier of the Premises, provided that it does
not materially affect the Tenant's or other permitted occupiers'
use of the Premises for the Permitted Use or the rights granted
to the Tenant hereunder;
5.1.2 the right to build into any of the structures bounding and
forming part of the Premises for the purpose of CLAUSE 5.1.1;
5.1.3 the right to:
(a) inspect, repair and replace any Service Media in, on,
under or over the Premises, but which do not form part
of or serve the Premises;
(b) connect into and use any Service Media within or forming
part of the Premises if the relevant services cannot
reasonably be provided any other way and such connection
and use does not materially adversely affect the
provision of the relevant services or the use of any
such Service Media for the benefit of the Premises; and
(c) a right to enter the Premises and inspect, repair and
replace an extract riser running from the lower ground
floor to the roof of the Building in the approximate
position shown coloured yellow on the Plans;
5.1.4 the right to attach any equipment to the Building in order to
clean the outside of the windows of the Building;
5.1.5 the right to attach any equipment or notices to the Premises to
comply with any legislation or any requirements of the insurers
of the Building;
5.1.6 the right of support and protection from the Premises for the
rest of the Building and any adjoining property;
5.1.7 the right for the occupier of any other part of the Building to
enter the Premises for the same purposes and in the same
circumstances as the Tenant may enter other parts of the
Building;
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5.1.8 the right to enter the Premises:
(a) to exercise the rights referred to in CLAUSEs 5.1.1 to
5.1.7;
(b) to view the state and condition of the Premises, to
measure and undertake surveys of the Premises and to
prepare schedules of condition or of dilapidations at
the Premises;
(c) to determine whether the Tenant is complying with its
obligations in this Underlease and to remedy any breach
of those obligations;
(d) to show prospective purchasers of any interest in the
Landlord's or Superior Landlord's reversion or, in the
last six months of the Term, to show prospective tenants
over the Premises;
(e) in connection with the provision of the Services;
(f) in connection with any requirements of the insurers of
the Premises;
(g) for any other reasonable purpose connected with this
Underlease or with the Superior Landlord's or Landlord's
interest in the Premises or the Building or with the
proper management of the Building.
5.2 The rights reserved by this Underlease may be exercised by anyone
authorised by the Landlord.
5.3 The person exercising any right reserved by this Underlease may,
only exercise that right:
5.3.1 except in cases of emergency after having given reasonable prior
written notice to the Tenant; and
5.3.2 in a manner which causes as little inconvenience as reasonably
practicable to the Premises; and
5.3.3 on the basis that the person exercising that right shall
immediately make good any damage caused to the Premises and to
any items belonging to the Tenant or the occupier of the
Premises which are at the Premises,
and the Landlord shall ensure that the person exercising that right
complies with the terms of this CLAUSE 5.3.
5.4 The Tenant shall allow any person who has a right to enter the
Premises to enter the Premises at all reasonable times, provided
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that reasonable notice has been given, which need not be written notice.
In cases of emergency no notice need be given and the Superior Landlord
and the Landlord or another person on behalf of the Superior Landlord
and the Landlord may break into the Premises if entry cannot be effected
in any other way. The Superior Landlord and/or the Landlord will be
liable to make good any damage caused to the Premises in breaking into
the Premises in these circumstances except where such forced entry is
required because of any breach of covenant by the Tenant.
6. THIRD PARTY RIGHTS OVER THE PREMISES
6.1 There are excepted from this deed and this Underlease is granted
subject to the matters contained or referred to in the documents
listed below:
DATE DOCUMENT PARTIES
---- -------- -------
1. 29.04.1966 Conveyance British Railways Board (1)
Worthy Estates Limited (2)
2. 07.08.1989 Deed relating to rights of light Far Investment Limited (1)
Barclays Bank PLC (2)
3. 04.06.1991 Deed relating to rights of light and crane Barclays Bank Plc (1)
oversailing British Railways Board (2)
Rosehaugh Stanhope (Ludgate Phase I) Plc (3)
4. 07.02.1995 Deed relating to rights of light and air Barclays Bank PLC (1)
London Capital Holdings Limited (2)
5. 12.12.1997 Transfer Railtrack Plc (1)
Barclays Bank PLC (2)
6. 12.12.1997 Agreement relating to works at Fleet Place BLCT (27770) Limited (1)
Barclays Bank PLC (2)
Ludgate Management Limited (3)
7. 12.12.1997 Deed relating to fire escape and other matters BLCT (27770) Limited (1)
Ludgate Management Limited (2)
Barclays Bank PLC (3)
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DATE DOCUMENT PARTIES
---- -------- -------
8. 12.12.1997 Deed Relating to rights of oversailing Barclays Bank PLC (1)
BLCT (27770) Limited (2)
9. 22.01.1998 Deed of Easement Ludgate Management Limited (1)
Barclays Bank PLC (2)
Railtrack Plc (3)
BLCT (27770) Limited (4)
10. 24.03.1998 Deed relating to rights light and air, restrictive Railtrack Plc (1)
covenants, crane oversailing, fire escape, Heron London Developments Limited (2)
vehicular access and other matters Barclays Bank Plc (3)
11. 09.09.1998 Supplemental Deed relating to crane oversailing Heron Developments Limited (1)
Hammerson UK Properties Limited (2)
12. 28.11.1997 Agreement to enter into a deed in respect of Railtrack Plc (1)
Britannia House and ▇▇▇▇▇▇▇▇ National House Heron London Developments Limited (2)
Barclays Bank PLC (3)
13. 28.11.1997 Agreement in relation to development of land at Barclays Bank PLC (1)
16-17 Old ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Others (2)
Wilde Sapte (3)
14. 08.06.1998 Deed of Release of rights of way London Capital Holdings Ltd (1)
Hammerson UK Properties Plc (2)
15. 01 02 2000 Counterpart lease of transformer chamber Hammerson UK Properties Plc (1)
London Electricity plc (2)
16. 03.11.1993 Fleet Place One Fleet Place Limited (1)
Estate Agreement Ten Fleet Place Limited (2)
Ludgate Management Limited (3)
6.2 The Tenant shall comply with the matters contained or referred to in
the documents referred to in CLAUSE 6.1 so far as they relate to
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the Premises and the rights granted by this Underlease and are
subsisting and capable of being enforced.
6.3 The Tenant shall:
6.3.1 not permit any third party to acquire any right over the
Premises or to encroach upon the Premises;
6.3.2 give the Superior Landlord and the Landlord immediate written
notice of any attempt to do this;
6.3.3 take any steps which the Superior Landlord and/or the Landlord
may reasonably require to prevent the acquisition of any right
over or encroachment on the Premises; and
6.3.4 preserve for the benefit of the Premises and the Superior
Landlord's and/or the Landlord's interest in them all existing
rights which belong to the Premises and are enjoyed over
adjoining or neighbouring property.
6.4 The Tenant shall not block or obstruct any window or ventilator at
the Premises.
7. PAYMENT OF RENTS
7.1 TENANT'S OBLIGATION TO PAY RENT
The Tenant agrees with the Landlord to pay:
7.1.1 the Rent, the Service Charge Estimate and any VAT payable on
those sums in four equal instalments in advance on the Quarter
Days;
7.1.2 the Insurance Rent on demand;
7.1.3 the Service Charge Balance, and any VAT on it, on demand whether
such demand is made and received before or after the end of the
Term; and
7.1.4 interest in accordance with CLAUSE 9.7;
7.1.5 the Second Service Charge Rent, and any VAT on it, at the times
set out in the Second Schedule.
7.2 FIRST PAYMENT OF THE SERVICE CHARGE ESTIMATE AND SECOND SERVICE
CHARGE RENT
The first instalment of the Service Charge Estimate and the Second
Service Charge Rent, and any VAT due on them is to be made on the
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date of this deed, and is to be a proportionate amount for the
period from and including the date of this deed until the next
Quarter Day.
7.3 RENT COMMENCEMENT DATE
The first payment of the Rent shall be made on the Rent Commencement
Date in respect of the period from and including the Rent
Commencement Date until the next Quarter Day.
7.4 NO RIGHT OF SET-OFF
The Tenant waives any legal or equitable right of set-off,
deduction, abatement or counterclaim which it may have in respect of
the Rent or any other sums due under this Underlease and agrees to
make all payments of Rent and other such sums in full on their due
dates.
8. RENT REVIEW
8.1 DEFINITIONS
In this clause the following definition applies:
"OPEN MARKET RENT"
means the annual rent at which the Premises could reasonably be
expected to be let as a whole at the relevant Review Date in the
open market:
(a) without a fine or premium;
(b) by a willing landlord to a willing tenant;
(c) which would be payable after the expiry of a rent free
or reduced rent period of such length as would be
negotiated in the open market between the willing
landlord and the willing tenant at the relevant Review
Date in respect only of fitting out works which would be
carried out by the willing tenant;
(d) under a lease of ten years commencing on and including
the relevant Review Date;
(e) otherwise on the same terms as this Underlease, except
as to the amount of the Rent but including the
provisions for review and assuming that the rent
commencement date in such lease is at such date after
the relevant Review Date so as to provide for the rent
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free or reduced rent period referred to in PARAGRAPH (c)
above;
assuming that:
(f) the Premises are available to be let with vacant
possession;
(g) other than where and to the extent that the Landlord is
in breach of its covenants at CLAUSE 10.2 if the
Premises and the Building and any land or Service Media
over which any rights granted by this Underlease are to
be exercised are damaged or destroyed that they have
been reinstated;
(h) the Premises have been finished to the state described
in the Reinstatement Specification and are ready to
receive the willing tenant's fitting out works;
(i) the Tenant has fully complied with its obligations in
this Underlease;
(j) the Landlord has fully complied with its obligations in
this Underlease other than those which remain unremedied
after it has received notice of the breach and been
given a reasonable opportunity to remedy the same;
(k) no work has been carried out on the Premises by the
Tenant or any undertenant or their predecessors in title
otherwise than pursuant to any obligation to the
Landlord which would lessen the rental value of the
Premises;
(l) the Premises can, in their assumed state, be lawfully
used by the willing tenant for the Permitted Use;
(m) any consents or licences current or required at the
relevant Review Date which are not personal to the
Tenant and which are capable of being freely assigned or
renewed at no cost are available to the willing tenant;
and
but disregarding:
(n) any effect on rent of the fact that the Tenant or any
authorised occupiers or their respective predecessors
have been in occupation of the Premises;
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(o) any goodwill attached to the Premises by reason of the
Tenant or any authorised occupiers or their respective
predecessors carrying on any business at the Premises;
(p) any improvements carried out by the Tenant or any
authorised occupiers, or their respective predecessors
in title, under the Agreement leading to the grant of
this Underlease or during the Term, with the consent (if
required) of the Landlord, at the cost of the relevant
Tenant or authorised occupier, and not pursuant to an
obligation owed by the relevant Tenant or authorised
occupier or their respective predecessors in title to
the Landlord or its predecessors in title;
(q) any increase or decrease in rent the hypothetical tenant
might be prepared to pay by reason of the use or
occupation by the Tenant or any authorised occupier or
their respective predecessors of any other part of the
Building; and
(r) any legislation which imposes a restraint upon agreeing
or receiving an increase in the Rent.
8.2 DETERMINATION OF THE REVISED RENT BY AGREEMENT
8.2.1 The Rent will be reviewed at the Review Date, and from the
Review Date the Rent will be the higher of the Rent reserved
immediately before the Review Date and the Open Market Rent at
the Review Date.
8.2.2 The Landlord and the Tenant may agree the level of the Open
Market Rent at any time before the Surveyor has determined it.
8.2.3 The Landlord and the Tenant may agree that, taking into account
the Open Market Rent at the Review Date, the revised Rent
reserved from the Review Date will be formulated in terms which
provide for different amounts to be paid with effect from
different dates on or after the Review Date.
8.2.4 If the Landlord and the Tenant have not agreed the Open Market
Rent three months before the Review Date, either may require it
to be determined by a Surveyor.
8.3 THE SURVEYOR
8.3.1 The Surveyor must have substantial recent relevant experience in
the letting and valuation of properties of a similar type and in
the same region as the Premises.
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8.3.2 If the Surveyor dies, or gives up the appointment, or fails to
act in accordance with this CLAUSE 8, or it becomes apparent
that the Surveyor is or will become unable so to act, the
Landlord and the Tenant may make a further appointment of, or
application for, a substitute Surveyor.
8.3.3 The Surveyor shall act as an arbitrator in accordance with the
Arbitration ▇▇▇ ▇▇▇▇.
8.4 DETERMINATION OF THE REVISED RENT BY THE SURVEYOR
8.4.1 The Surveyor shall be instructed to determine the Open Market
Rent within two months (or longer if reasonable) of being
appointed, to make a direction as to costs (including the costs
of appointment) and to give a reasoned award.
8.4.2 The costs of appointment and fees of the Surveyor shall be paid
in such proportions as the Surveyor directs, or if no such
direction is made, then equally by the Landlord and the Tenant.
If either party has not paid any costs required to be paid under
this clause within 10 Working Days of having been required to
pay them, the other party may pay such costs and recover the
same from the other.
8.5 RENT PENDING REVIEW
8.5.1 If the revised Rent has not been agreed or determined before the
Review Date, then the Rent shall continue to be payable at the
rate payable immediately before the Review Date.
8.5.2 On the Quarter Day after the revised Rent has been agreed or
determined the shortfall, if any, between the Rent paid and the
revised Rent for the period from the Review Date until that
Quarter Day will become due together with interest on that
shortfall at the Base Rate from the date or dates on which such
shortfall became due.
8.6 LEGISLATIVE RESTRICTIONS
If there is any legislation in force at the Review Date which
restricts the Landlord's right to review the Rent in accordance with
this clause, or to receive any increase in the Rent following a
review, then the date on which the legislation is repealed or
amended to allow a review of or increase in the Rent, will be a
further Review Date and the Landlord will be entitled to require a
review of the Rent in accordance with this clause, except that the
revised Rent will be the highest of:
8.6.1 the Open Market Rent at that further Review Date;
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8.6.2 the Rent reserved immediately before that further Review Date;
and
8.6.3 the Rent reserved immediately before the relevant legislative
restriction became applicable to this Underlease.
8.7 RENT REVIEW MEMORANDUM
Following the agreement of the revised Rent after each rent review,
the Landlord and the Tenant shall sign a memorandum recording the
revised level of the Rent and any agreement made pursuant to CLAUSE
8.2.3. The memorandum will be prepared by the Landlord and each
party will bear its own costs.
8.8 TIME NOT OF THE ESSENCE
Time will not be of the essence in relation to this clause.
9. OTHER FINANCIAL MATTERS
9.1 UTILITIES
The Tenant shall pay all charges, including connection and hire
charges, relating to the supply of Utilities to the Premises and
will comply with all present or future requirements and
recommendations of the suppliers of Utilities to the Premises.
9.2 COMMON FACILITIES
The Tenant shall pay on demand a fair proportion of any costs
properly incurred or properly payable by the Landlord in respect of
any land or Service Media outside the Building but used in
connection with the Premises.
9.3 RATES AND TAXES
The Tenant shall pay and indemnify the Landlord against all present
and future rates, duties and assessments of any nature charged on or
payable in respect of the Premises whether payable by the landlord,
owner, occupier or tenant of the Premises and whether of a capital
or income, recurring or non-recurring nature except any imposed on
the Landlord in respect of:
9.3.1 the grant of this deed; or
9.3.2 the receipt of sums under this Underlease; or
9.3.3 any dealing in or disposition of any reversionary interest in
the Premises.
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9.4 PAYMENTS RELATING TO THE PREMISES AND OTHER PROPERTY
Where any of the charges payable under CLAUSE 9.1, 9.2 or 9.3
relates to other property as well as the Premises, the amount to be
paid by the Tenant will be a fair proportion of the whole of the
amount charged or payable.
9.5 LANDLORD'S COSTS
The Tenant shall pay to the Landlord, on demand, and on an indemnity
basis, the fees, costs and expenses charged, incurred or payable by
the Landlord, and its advisors or bailiffs in connection with:
9.5.1 any steps taken in contemplation of, or in relation to, any
proceedings under section 146 or 147 of the Law of Property ▇▇▇
▇▇▇▇ or the Leasehold Property (Repairs) ▇▇▇ ▇▇▇▇, including the
preparation and service of all notices, and even if forfeiture
is avoided (unless it is avoided by relief granted by the
court);
9.5.2 preparing and serving schedules of dilapidations at any time
during the Term (or after the Term in respect of dilapidations
arising during the Term), and supervising any works undertaken
to remedy such dilapidations;
9.5.3 recovering (or attempting to recover) any arrears of Rent or
other sums due to the Landlord under this Underlease, including
the costs of preparing and serving any notice under section 17
of the Landlord and Tenant (Covenants) ▇▇▇ ▇▇▇▇ and any costs
associated with the Landlord's remedies of distress or
execution;
9.5.4 any investigations or reports reasonably and properly carried
out to determine the nature and extent of any breach by the
Tenant of its obligations in this Underlease;
9.5.5 any steps taken to procure that a breach by the Tenant of its
obligations under this Underlease is remedied; and
9.5.6 any application for a consent of the Landlord (including the
preparation of any documents) which is needed by virtue of this
Underlease, whether or not such consent is granted save to the
extent that it is unreasonably withheld or delayed contrary to
the provisions requiring the same.
9.6 VAT
9.6.1 Where the Tenant is to pay the Landlord for any supply made to
the Tenant by the Landlord, the Tenant shall also pay any VAT
which may be payable in connection with that supply.
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9.6.2 Where the Tenant is to pay the Landlord the costs of any
supplies made to the Landlord, the Tenant shall also pay the
Landlord any VAT payable in connection with that supply, except
to the extent that the Landlord is able to obtain a credit for
the VAT from HM Customs & Excise.
9.7 INTEREST
9.7.1 If the Rent is not paid to the Landlord on the due date or if
any other sums payable under this Underlease to the Landlord are
not paid within five Working Days of the due date for payment
the Tenant shall pay interest to the Landlord at the Interest
Rate for the period from and including the due date until
payment (both before and after any judgment).
9.7.2 If the Landlord refuses to accept any Rent or other sum due
under this Underlease, when the Tenant is, or may be, in breach
of any of its obligations in this Underlease so as not to
prejudice the Landlord's rights to re-enter the Premises and
forfeit this Underlease, the Tenant shall pay interest on such
sum to the Landlord at the Interest Rate for the period from and
including the date such sum became due until the date the
payment is accepted by the Landlord.
9.7.3 Interest under this Underlease will accrue on a daily basis,
compounded with quarterly rests on the Quarter Days and will be
payable immediately on demand.
9.8 EXCLUSION OF STATUTORY COMPENSATION
Any statutory right of the Tenant, or any undertenant, to claim
compensation from the Landlord or any superior landlord on leaving
the Premises is excluded to the extent that the law allows.
10. INSURANCE
10.1 LANDLORD'S OBLIGATIONS RELATING TO INSURANCE
10.1.1 The Landlord covenants:
(a) to procure (at the Tenant's request and cost) that the
Superior Landlord complies with its obligations as to
insurance and reinstatement contained at CLAUSES 10.1
and 10.2 of the Superior Lease; and
(b) to produce to the Tenant (at the Tenant's cost) once a
year, and on the occasion of any material change,
relevant details of the insurance of the Premises and
evidence of the payment of the current premium insofar
as and to the extent that such
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details and such evidence are produced to the Landlord
provided that the Landlord has used all reasonable
endeavours to obtain such details.
10.2 TENANT'S OBLIGATIONS RELATING TO INSURANCE
The Tenant shall:
10.2.1 pay the Insurance Rent in accordance with this Underlease;
10.2.2 pay on demand any increase in the insurance premium for any part
of the Building or any adjoining property of the Superior
Landlord which is attributable to the use of the Premises, or
anything done or omitted to be done on the Premises by the
Tenant or any other occupier of the Premises;
10.2.3 pay on demand a fair proportion of the costs incurred or payable
by the Superior Landlord in connection with the Superior
Landlord obtaining any valuation of the Building for insurance
purposes, as long as such valuation is made at least three years
after any previous such valuation;
10.2.4 comply with the requirements of the insurers relating to the
Premises and the rights granted to the Tenant by this
Underlease;
10.2.5 not do or omit to do anything which may make any insurance of
the Building taken out by the Superior Landlord and advised to
the Tenant void or voidable, or which would result in an
increase in the premiums for such insurance;
10.2.6 give the Superior Landlord and the Landlord immediate written
notice of any damage to or destruction of the Premises by an
Insured Risk;
10.2.7 pay the Landlord (or at its direction, the Superior Landlord) on
demand the amount of any excess required by the insurers in
connection with that damage or destruction;
10.2.8 pay the Landlord (or at its direction, the Superior Landlord) on
demand an amount equal to any amount which the insurers properly
refuse to pay, following damage or destruction to any part of
the Building, or any adjoining property of the Landlord or the
Superior Landlord, by an Insured Risk, because of any act or
omission of the Tenant subject to the Landlord assigning (or
procuring the assignment) to the Tenant the right to receive
such amount from the insurers;
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10.2.9 if requested by the Landlord and/or the Superior Landlord,
remove its fixtures and effects from the Premises to allow the
Superior Landlord to repair or reinstate the Premises;
10.2.10 not take out any insurance of the Premises against the Insured
Risks in its own name other than in respect of any part of the
Premises installed by or on behalf of the Tenant or any
undertenant or any other occupier, other than in respect of any
plate glass at the Premises, and if the Tenant has the benefit
of any such insurance, the Tenant shall hold all money
receivable under that insurance upon trust for the Landlord if
and to the extent the insurers of the Building do or might
reasonably in the future seek to exercise rights of contribution
by reason of such insurance.
10.3 SUSPENSION OF RENT
10.3.1 If the whole of the Premises or any part which the Superior
Landlord is obliged to insure, or the means of access over the
Building to the Premises or any Service Media over which the
Tenant exercises rights granted by this Underlease, are damaged
or destroyed by an Insured Risk so as to make the Premises or
any part which the Superior Landlord is obliged to insure, unfit
for occupation or use for the Permitted Use or the means of
access thereto unfit for their purpose the Rent (or a due
proportion of it according to the nature and extent of the
damage) will be suspended from the date of damage or destruction
for a period of five years or, if sooner, until the Premises, or
such part, have been made fit for occupation and use, or the
means of access restored or the Service Media over which the
rights are exercised are repaired or restored PROVIDED THAT the
proportion of the Rent suspended under the provisions of this
clause shall not exceed the proportion of the rent so suspended
under clause 10.4.1 of the Superior Lease.
10.3.2 The Rent will not be suspended to the extent that any loss of
rent insurance has been made ineffective, or payment of it has
been refused by the insurers because of any act or omission by
the Tenant.
10.3.3 The suspension of the Rent will not affect the Tenant's
obligation to discharge any arrears of Rent or other sums due
under this Underlease up to the date of damage or destruction.
10.3.4 Any dispute relating to this CLAUSE 10.4 will be referred to
arbitration.
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10.4 OPTION TO DETERMINE FOLLOWING DAMAGE BY AN INSURED RISK
10.4.1 If the whole or substantially the whole of the Premises is made
unfit for occupation or use for the Permitted Use or the means
of access thereto is unfit for their purpose in either case as a
result of damage or destruction caused by an Insured Risk and
reinstatement of the Premises has not been completed because of
circumstances beyond the Superior Landlord's reasonable control,
within three years of the damage or destruction, either party
may terminate this Underlease by giving written notice to the
other:
10.4.2 The notice must be given before completion of reinstatement and
after the third anniversary of the damage or destruction in the
case of termination pursuant to clause 10.4.1 above.
10.4.3 Termination of this Underlease pursuant to CLAUSE 10.4.1 will be
without prejudice to any claim which the Landlord or the Tenant
may have against the other for any earlier breach of their
respective obligations in this Underlease.
10.4.4 The Tenant shall remain bound by CLAUSES 10.2.7 and 10.2.8 after
such termination.
10.5 INSURANCE MONIES
All insurance monies payable will belong to the Superior Landlord.
10.6 OPTION TO DETERMINE
10.6.1 If the whole or substantially the whole of the Premises is made
unfit for occupation or use for the Permitted Use or the means
of access thereto is unfit for their purpose in either case as a
result of damage or destruction caused otherwise than by an
Insured Risk then either party may prior to the damage or
destruction being reinstated terminate this Underlease by giving
written notice to the other.
10.6.2 Termination of this Underlease pursuant to CLAUSE 10.6.1 will be
without prejudice to any claim which the Landlord or the Tenant
may have against the other for any earlier breach of their
respective obligations in this Underlease.
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11. RESTRICTIONS
11.1 The Tenant covenants not to obstruct the Landlord's right of
access to the extract riser referred to in CLAUSE 5.1.3(c).
11.2 The Tenant covenants not to install blinds or curtains on the
inside of the windows of the Premises or to dress or cover the
same in any manner whatsoever (without the consent of the
Landlord not to be unreasonably withheld or delayed).
12. STATE AND CONDITION OF THE PREMISES
12.1 REPAIR
12.1.1 The Tenant shall repair the Premises and keep them in good and
substantial repair and condition.
12.1.2 The Tenant shall carry out all works and treatments to the
Premises as are necessary for the proper repair and maintenance
of the Premises and to ensure the health and safety of people
working at or visiting the Premises.
12.1.3 The Tenant will not be liable under this CLAUSE 12.1 to the
extent that damage is caused by an Insured Risk unless the
insurance proceeds are withheld in whole or in part by reason of
the act or default of the Tenant or any permitted occupier of
the Premises.
12.2 REDECORATION
12.2.1 The Tenant shall redecorate the Premises every five years, and
in the last six months of the Term (but not more than once in
any two year period), and, on the last occasion, in colours and
materials approved by the Landlord.
12.2.2 All redecoration is to be carried out to a high standard and in
accordance with good practice.
12.2.3 The Tenant will not be obliged to redecorate the Premises while
the Superior Landlord is repairing or reinstating the Premises
by reason of CLAUSE 10.2 of the Superior Lease to the extent
that repair or reinstatement includes redecoration. The Tenant
shall then redecorate the interior every five years after the
repair or reinstatement and in the last six months of the Term
(but not more than once in any two year period) and otherwise in
accordance with this CLAUSE 12.2.
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12.3 ALTERATIONS
12.3.1 Except as provided in this CLAUSE 12.3 the Tenant shall not:
(a) construct any new building or structure on the Premises;
(b) make any structural alterations or additions to the
Premises; or
(c) make any alterations or additions to the outside parts
or exterior of the Premises, including any alterations
to their appearance.
12.3.2 Except as provided in this CLAUSE 12.3 the Tenant shall not
without the consent of the Superior Landlord and the Landlord,
in each case such consent not to be unreasonably withheld or
delayed:
(a) make any alterations to the Service Media which form
part of the Premises;
(b) make any internal, non-structural alterations or
additions to the Premises; or
(c) attach such alterations or additions to the interior of
the structure of the Building.
12.3.3 On any application for consent to make alterations or additions
the Tenant shall give the Landlord six copies of a specification
and detailed drawings identifying the proposed works and such
description of such alterations or additions in CAD form as the
Superior Landlord or the Landlord may reasonably require.
12.3.4 The Tenant may erect relocate and remove internal non-structural
partitioning and attach the same to the interior of the
structure of the Building without obtaining the Landlord's
consent so long as such partitioning shall have no detrimental
effect on any building services at the Building or the means of
escape in case of fire from the Building or any part of it and
provided that the Tenant gives the Landlord six copies of
location drawings and construction details prior to commencing
the works.
12.3.5 The Tenant shall, at the end of the Term, remove any alterations
or additions made to the Premises and make good any damage
caused by that removal and shall reinstate the Premises to their
original layout and condition as evidenced by the Reinstatement
Specification (save that the Tenant will replace any damaged
carpet tiles with tiles of a similar type and quality (subject
to availability)).
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12.4 SIGNS AND RELETTING NOTICES
12.4.1 The Tenant shall not display any signs or notices at the
Premises which can be seen from outside the Premises, except as
provided in CLAUSES 4.1.2 and 4.1.3 of this Underlease the size,
style and position of which have been approved by the Superior
Landlord and the Landlord in each case such approval not to be
unreasonably withheld or delayed;
12.4.2 At the end of the Term the Tenant shall remove any signs at the
Premises and will make good any damage caused by that removal.
12.4.3 The Tenant shall not object to any sign placed on the exterior
of the Building during the last six months of the Term for the
reletting of the Premises as long as such sign does not
unreasonably restrict the access of light or air to the
Premises.
13. USE OF THE PREMISES
13.1 THE PERMITTED USE
The Tenant shall not use the Premises except for the Permitted Use.
13.2 RESTRICTIONS ON USE
The Tenant shall not:
13.2.1 leave the Premises unoccupied for a period of more than one
month without first notifying the Superior Landlord and the
Landlord in writing;
13.2.2 do anything on the Premises which is illegal or immoral;
13.2.3 do anything on the Premises which would cause a nuisance or
inconvenience or any damage or disturbance to the Superior
Landlord and/or the Landlord or any of the other occupiers of
the Building or any owner or occupier of any other property near
the Building;
13.2.4 obstruct any pavement, footpath or roadway adjoining or serving
the Building;
13.2.5 carry out any noisy, noxious, dangerous or offensive acts at the
Premises;
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13.2.6 store dangerous or inflammable materials at the Premises, unless
they are:
(a) of a type usually kept by persons carrying on the same
business as the Tenant (or other occupier) or necessary
for the operation of any plant or machinery;
(b) kept in reasonable quantities; and
(c) stored safely and in accordance with any requirements or
recommendations of the insurers of the Premises;
13.2.7 allow waste to accumulate at the Premises;
13.2.8 allow any material which is deleterious, polluting or dangerous
(to persons or property) to enter any Service Media or any
adjoining property; nor
13.2.9 overload or obstruct any Service Media which serve the Premises.
13.3 USE OF MACHINERY
The Tenant shall not use any machinery on the Premises in a manner
which causes or may cause:
13.3.1 any damage to the fabric of the Building or any strain on the
structure of the Building beyond that which it is designed to
bear; or
13.3.2 any undue noise, vibration or other inconvenience to the
Superior Landlord and/or the Landlord or other occupiers of the
Building or of any adjoining property.
13.4 FIRE AND SECURITY PRECAUTIONS
The Tenant shall comply with the requirements and recommendations of
the fire authority and with any reasonable requirements of the
Superior Landlord and/or the Landlord relating to fire prevention
and the provision of fire fighting equipment at the Premises and the
reasonable requirements of the Superior Landlord and/or the Landlord
in relation to the security of the Building.
13.5 EXCLUSION OF WARRANTY
The Landlord does not warrant or represent that the Premises may be
used for the Permitted Use or for any other purpose.
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14. DEALINGS
14.1 GENERAL RESTRICTIONS
The Tenant shall not part with nor agree to part with possession of
the whole or part of the Premises or this Underlease, nor allow any
other person to occupy the whole or any part of the Premises, except
as permitted by the remainder of this CLAUSE 14.
14.1.1 Not to assign the whole of the Premises unless each of the
following conditions is fulfilled:-
(a) the Tenant has first offered in writing to surrender
this Underlease to the Landlord at the expiry date of
three weeks from such offer which offer shall contain
the following details:-
(i) the name and address of the proposed assignee;
and
(ii) the terms (including financial provisions) of
the proposed assignment; and
(b) the Landlord has failed to accept the Tenant's offer
within two weeks of receipt of such offer (time being of
the essence).
14.1.2 If the Landlord accepts the offer referred to in CLAUSE 14.1.1
within the aforementioned two week period (time being of the
essence), the Landlord and the Tenant shall be subject to a
binding agreement under which the Tenant shall surrender this
Underlease and the Landlord shall accept such surrender on the
expiry of three weeks from the date of receipt by the Landlord
of the offer notice referred to in CLAUSE 14.1.1(a) by deed or
otherwise in a manner reasonably acceptable to the Landlord and
the Tenant.
14.1.3 Subject to (i) all Rent and other sums due under this Underlease
up to the date of the surrender having been paid in full; (ii)
there being no subsisting material breaches of covenant on the
part of the Tenant; (iii) the Landlord accepting the surrender
in accordance with CLAUSE 14.1.1 and (iv) the Tenant giving up
vacant possession of the Premises on completion of the
surrender, the Landlord shall (upon completion of the surrender)
release the Tenant from all liabilities under this Underlease by
deed in a form reasonably acceptable to the Tenant.
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14.2 ASSIGNMENTS
14.2.1 In this clause "ASSIGNEE" means the proposed assignee and
"ASSIGNMENT" means the proposed assignment.
14.2.2 The Tenant shall not assign any part (as opposed to the whole)
of this Underlease.
14.2.3 The Tenant shall not assign the whole of this Underlease without
the consent of the Superior Landlord and the Landlord, in each
case such consent not to be unreasonably withheld or delayed.
14.2.4 The Landlord and the Tenant agree that, for the purposes of
section 19(1A) of the Landlord and Tenant ▇▇▇ ▇▇▇▇, the Landlord
may refuse its consent to an assignment in any of the following
circumstances:
(a) if at the date of the application for consent the Tenant
is in arrears with Rent or other sums due under this
Underlease;
(b) if in the reasonable opinion of the Landlord the
Assignee is not of sufficient financial standing to pay
the Rent and other sums payable under this Underlease
and to comply with the tenant's obligations in this
Underlease (except where in the reasonable opinion of
the Landlord acceptable security for such payments and
such obligations is provided);
(c) if, where the obligations of the Tenant have been
guaranteed by a member of the same Group as the Tenant,
the Assignee is another member of that Group and the
guarantee will cease to be available after the
assignment;
(d) if the Assignee (being a body corporate) is not
incorporated within the United Kingdom, the United
States of America, the European Union or a foreign
jurisdiction with which the UK has a treaty or other
agreement providing for mutual enforceability of
judgments, unless its proposed guarantor (and if more
than one then all of them) (being a body corporate) is
(or are) so incorporated; and
(e) if the provisions of CLAUSE 14.1.1 of this Underlease
have not been complied with in all respects.
14.2.5 The Landlord and the Tenant agree that, for the purposes of
section 19(1A) of the Landlord and ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, the Landlord
may give its consent to an assignment subject to all or any of
the following conditions:
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(a) that where reasonably required by the Landlord the
Tenant enters into an authorised guarantee agreement no
later than the date of the instrument of the Assignment,
which agreement shall be in the form of the draft
attached as the FIRST SCHEDULE with such amendment as
may be reasonably required;
(b) that, where reasonably required by the Landlord, the
Assignee shall procure a guarantor or guarantors, which
if a body corporate is to be incorporated within the UK
or United States of America, the European Union or a
foreign jurisdiction with which the UK has a treaty or
other agreement providing for mutual enforceability or
judgments, reasonably acceptable to the Landlord, to
enter into a full guarantee and indemnity of the
Assignee's obligations under this Underlease, such
guarantee and indemnity to be by deed and to be in the
form of CLAUSE 21 of the Superior Lease with such
additions and amendments as are necessary to reflect the
fact that the guarantee and indemnity is being entered
into by a separate instrument and after the date of this
deed or as are reasonably required;
(c) if the Assignee is a member of the same Group as the
Tenant then unless the Assignee is of at least equal
covenant strength to the Tenant, the Assignee shall
procure a guarantor or guarantors from another member of
the same Group which is of at least equal covenant
strength to the Tenant such guarantor satisfying the
provisions in clause 14.2.5 (b);
(d) that the Assignment is completed within two months of
the date of the consent;
(e) that the proposed assignee of this Underlease enters
into a covenant with the lessor for the time being under
the Superior Lease to comply with the terms of the
Superior Lease on the part of the tenant, other than as
to the payment of any Rent or other sums reserved as
rent by the Superior Lease, and to comply with the
obligations on the tenant in this Underlease, from the
date the instrument of the assignment of this Underlease
is completed throughout the term of this Underlease or
until the assignee of this Underlease is released by
virtue of the Landlord and Tenant (Covenants) ▇▇▇ ▇▇▇▇,
if sooner.
14.2.6 CLAUSES 14.2.4 and 14.2.5 do not limit the right of the Landlord
to refuse consent to an assignment on any other reasonable
ground or to impose any other reasonable condition to its
consent.
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14.3 UNDERLETTINGS
14.3.1 The Tenant shall not underlet or agree to underlet any part of
the Premises (as distinct from the whole) except by an
underlease of a Permitted Part.
14.3.2 The Tenant shall not underlet the whole of the Premises or a
Permitted Part, except in accordance with the remainder of this
CLAUSE 14.3 and with CLAUSE 14.4 and then only with the consent
of the Superior Landlord and the Landlord, such consent not to
be unreasonably withheld or delayed.
14.3.3 The Tenant shall not underlet the whole of the Premises or a
Permitted Part without first obtaining from the undertenant a
covenant by the undertenant with the lessor for the time being
under this Underlease and the Superior Lease to comply (except,
in the case of an underletting of a Permitted Part, in so far as
they apply to the Permitted Part) with the lessee's covenants in
this Underlease, other than as to the payment of any Rent or
other sums reserved as rent by this Underlease, and to comply
with the obligations on the undertenant in the underlease
throughout the term of the underlease or until the undertenant
is released by virtue of the Landlord and Tenant (Covenants) ▇▇▇
▇▇▇▇, if sooner.
14.3.4 Any underlease of the whole of the Premises or of a Permitted
Part shall be granted:
(a) at a rent which is not less than the then open market
rent of the whole of the Premises or the Permitted Part
(as the case may be);
(b) without a fine or premium other than a rent free period
no longer than that commonly available in the open
market for premises of the type being underlet; and
(c) with the underlease rent payable not more than one
quarter in advance.
14.3.5 The Tenant shall not grant any underlease without an effective
order of a court of competent jurisdiction made under section
38(4) of the Landlord and ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ authorising an
agreement excluding sections 24 to 28 (inclusive) from the
tenancy to be created by the underlease. The Tenant shall supply
the Landlord and the Superior Landlord with a copy of the order
(with the form of underlease) certified by solicitors as a true
copy of the original for this purpose.
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14.4 TERMS TO BE CONTAINED IN ANY UNDERLEASE
Any underlease shall contain the following terms:
14.4.1 (where the term of the underlease extends beyond the Review
Date) a provision for the review of the rent in the same terms
and on the same dates as the review of the Rent in this
Underlease;
14.4.2 a provision for re-entry in the same terms as CLAUSE 18;
14.4.3 an obligation on the undertenant not to deal with or dispose of
its interest in the underlease, or part with possession of the
whole or part of that interest or permit any other person to
occupy the Premises or the Permitted Part (as the case may be)
except as permitted by CLAUSE 14 and except, in the case of an
underlease of the whole of the Premises, by way of:
(a) an assignment of the whole of its interest in the
Premises;
(b) a floating charge of the whole of its interest in the
Premises; or
(c) a sub-underlease of the whole of the Premises or a
Permitted Part,
or except in the case of an underlease of a Permitted Part by
way of:
(d) an assignment of the whole of its interest in the
Permitted Part;
(e) a floating charge over the whole of the Permitted Part;
or
(f) a sub-underlease of the whole of the Permitted Part.
which may, in any event, other than in the case of
floating charges only be made with the consent of the
lessor for the time being under this Underlease and the
Superior Lease, in each case such consent not to be
unreasonably withheld or delayed;
14.4.4 agreements between the Tenant and the undertenant in the same
terms as CLAUSE 14.2.4 and 14.2.5 mutatis mutandis;
14.4.5 in the case of an underletting of the whole of the Premises an
agreement between the Tenant and the undertenant expressed to be
for the purposes of section 19(1A) of the Landlord and ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ that the Tenant may give its consent to an assignment
of the underlease subject to a condition that the proposed
assignee of the underlease enters into a covenant with the
lessor for the
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time being under this Underlease and the Superior Lease to
comply with the terms of this Underlease on the part of the
tenant, other than as to the payment of any Rent or other sums
reserved as rent by this Underlease, and to comply with the
obligations on the undertenant in the underlease, from the date
the instrument of the assignment of the underlease is completed
throughout the term of the underlease or until the assignee of
the underlease is released by virtue of the Landlord and Tenant
(Covenants) ▇▇▇ ▇▇▇▇, if sooner;
14.4.6 an acknowledgement in the terms of CLAUSE 14.2.6;
14.4.7 provisions in the same form as CLAUSEs 14.3.3, 14.3.4 and 14.3.5
but relating to the undertenant in place of the Tenant, the
sub-undertenant in place of the undertenant and the grant of a
sub-underlease in place of the grant of an underlease;
14.4.8 an agreement between the Tenant and the undertenant that where
the review of rent in the underlease is referred to a third
party for determination, the Tenant will be allowed to make
representations and counter-representations to that third party
on behalf of the Landlord as to the reviewed rent to be payable
under the underlease, and shall otherwise be consistent with the
terms of this Underlease.
14.5 RENT REVIEW IN AN UNDERLEASE
14.5.1 The Tenant shall procure that the rent in any underlease is
reviewed in accordance with the underlease.
14.5.2 The Tenant shall not agree the level of any reviewed rent with
an undertenant before giving the Landlord not less than 10
working days notice either to agree the same or to require that
the Tenant refers the rent review to a third party for
determination in which latter event the Tenant shall refer the
same and conduct such determination at the Landlord's cost and
in the event that such third party determines a rent which is
less than the Landlord was invited to agree at the outset the
Landlord shall compensate the Tenant for the loss sustained.
14.5.3 If the rent review in an underlease is referred to a third party
for determination, the Tenant shall:
(a) invite the Landlord to supply evidence to the Tenant to
enable the Tenant to make representations and
counter-representations and to the extent that such
third party is prepared to entertain the same the Tenant
shall make such representations and
counter-
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representations on behalf of the Landlord and copy any
representations and counter-representations made by the
Tenant or undertenant to the Landlord; and
(b) keep the Landlord informed as to the progress of that
third party determination.
14.6 FURTHER PROVISIONS RELATING TO UNDERLEASES
14.6.1 The Tenant shall use all reasonable endeavours to enforce the
obligations of the undertenant in any underlease but shall not
be required to forfeit the same.
14.6.2 The Tenant shall not vary the terms of any underlease in any
material respect without the consent of the Landlord.
14.7 CHARGING
14.7.1 The Tenant shall not charge or agree to charge any part of the
Premises (as distinct from the whole).
14.7.2 The Tenant shall not charge or agree to charge the whole of the
Premises other than by way of floating charge without the
consent of the Landlord, such consent not to be unreasonably
withheld or delayed.
14.8 GROUP SHARING OF OCCUPATION
If the Tenant is a company, it may share occupation of the Premises
with one or more other companies which are in the same Group as the
Tenant on the following conditions:
14.8.1 the Tenant promptly notifies the Landlord in writing of the
beginning and the end of the arrangement;
14.8.2 no relationship of landlord and tenant is created by the
arrangement; and
14.8.3 the other companies vacate the Premises immediately if any of
them ceases to be a member of the same Group as the Tenant.
14.9 In the case of a Tenant which is a partnership or the management
company or nominee for a partnership the Tenant may share occupation
of the whole or any part of the Premises with such partnership or
any associates subject to such sharing not creating the relationship
of landlord and tenant between the Tenant and the occupiers.
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14.10 REGISTRATION OF DEALINGS AND PROVISION OF INFORMATION
14.10.1 Within one month of any dealing with, or devolution of, the
Premises or this Underlease or of any interest created out of
them or it, the Tenant shall:
(a) notify the Landlord in writing of that dealing or
devolution;
(b) give the Landlord a copy of any document effecting or
evidencing the dealing or devolution, and the copies
will each be certified by solicitors as a true copy of
the original; and
(c) pay the Landlord a reasonable registration fee of not
less than twenty five pounds (L25) each.
14.10.2 Registration of any dealing with or devolution of the Premises
or this Underlease or any interest created out of it or them
will not imply that the Landlord has considered or approved the
terms of that dealing or devolution.
14.10.3 The Tenant shall give the Landlord written details of persons
occupying the Premises and the basis upon which they occupy on
request by the Landlord.
15. LEGAL REQUIREMENTS AND REGULATIONS
15.1 LEGISLATION
The Tenant shall:
15.1.1 comply with all legislation affecting the Premises, their use
and occupation, and the health and safety of persons working at
or visiting the Premises, whether the legislation requires the
owner, landlord, tenant or occupier to comply;
15.1.2 carry out any works to the Premises which are required by
legislation;
15.1.3 obtain all licences and consents which are required under any
legislation to use the Premises or carry out any works or other
activity at the Premises;
15.1.4 where any such restriction extends beyond the end of the Term
and is binding on third parties, at the end of the Term pay the
Landlord a fair proportion of any compensation which the Tenant
has received or which is receivable by the Tenant because of any
restriction placed on the use of the Premises under any
legislation;
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15.1.5 not do or omit to do anything at the Premises which would result
in:
(a) any other part of the Building failing to comply with
any legislation; or
(b) the Landlord incurring any cost, penalty or liability
under any legislation.
15.2 NOTICES RELATING TO THE PREMISES
The Tenant shall:
15.2.1 give the Landlord and the Superior Landlord a copy of any notice
received by the Tenant, relating to the Premises or the Building
or any occupier of them, or to the Landlord's or Superior
Landlord's interest in them, within five Working Days of having
received it (or immediately if there are shorter time limits in
the notice);
15.2.2 where a notice requires compliance by the owner or occupier of
the Premises, but subject to CLAUSEs 15.2.3 and 15.2.4, comply
with the terms of any such notice in a manner approved by the
Landlord, but the Landlord's approval of any particular manner
will not imply that the Tenant has discharged its obligation to
comply with the terms of the notice;
15.2.3 at the Landlord's cost make, or join the Superior Landlord
and/or the Landlord in making, any objection or appeal against
such notice, which the Landlord may reasonably require and is
not contrary to the Tenant's interests;
15.2.4 not give any notice or counter-notice under the Party Wall etc.
▇▇▇ ▇▇▇▇ without the consent of the Superior Landlord and the
Landlord.
15.3 PLANNING
15.3.1 The Tenant shall comply with the Planning Acts.
15.3.2 The Tenant shall pay any charge imposed under the Planning Acts
in respect of the use of the Premises, or any works carried out
at the Premises by the Tenant or any permitted occupier.
15.3.3 The Tenant shall not apply for planning permission or make any
other application under the Planning Acts nor implement any
planning permission affecting the Premises without the consent
of the Superior Landlord and the Landlord.
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15.4 THE CONSTRUCTION (DESIGN AND MANAGEMENT) REGULATIONS 1994
15.4.1 In this clause "REGULATIONS" means the Construction (Design and
Management) Regulations 1994 and "FILE" means the Health and
Safety file for the Premises and works carried out to them,
required by the Regulations.
15.4.2 In respect of any works carried out by or on behalf of the
Tenant or any undertenant or other occupier of the Premises
(including any works of reinstatement which may be carried out
after the end of the Term) to which the Regulations apply, the
Tenant shall:
(a) comply in all respects with the Regulations and procure
that any person involved in carrying out such works
complies with the Regulations; and
(b) act as the only client in respect of those works and
where required by the Landlord serve a declaration to
that effect on the Health and Safety Executive pursuant
to Regulation 4 of the Regulations and give a copy of it
to the Landlord and the Superior Landlord.
15.4.3 The Tenant shall:
(a) maintain and make the File available to the Landlord and
the Superior Landlord for inspection at all time;
(b) on request provide copies of the whole or any part of
the File to the Landlord and the Superior Landlord; and
(c) hand the File to the Landlord at the end of the Term.
15.4.4 The Tenant shall use all reasonable endeavours to obtain
copyright licences which are needed for the Tenant to comply
lawfully with this CLAUSE 15.4 and such licences shall:
(a) be granted with a full title guarantee;
(b) allow the Landlord and any superior landlord and anyone
deriving title through or under them to take further
copies of such documents;
(c) be obtained without cost to any such person;
(d) allow any such person to grant sub-licences on similar
terms; and
(e) be irrevocable.
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15.5 LOCAL AUTHORITY REQUIREMENTS
The Tenant shall comply with all local authority requirements and
recommendations relating to the loading and unloading of goods at
the Building and the collection of refuse from the Premises.
15.6 DEFECTIVE PREMISES ▇▇▇ ▇▇▇▇
15.6.1 The Tenant shall give the Landlord and the Superior Landlord
immediate written notice of any defect in the Structural Parts
or Common Parts adjoining the Premises of which the Tenant
becomes aware and of any defect in the Premises which, in either
case, may make the Landlord and/or the Superior Landlord liable
to do, or not to do, any act to comply with the duty of care
imposed by the Defective Premises ▇▇▇ ▇▇▇▇.
15.6.2 The Tenant shall display any notices at the Premises needed to
enable the Landlord and/or the Superior Landlord to comply with
the Defective Premises ▇▇▇ ▇▇▇▇.
15.7 REGULATIONS
The Tenant shall comply with any regulations which may reasonably be
made by the Landlord and/or the Superior Landlord and notified to
the Tenant in writing from time to time to ensure the health and
safety of persons at the Building and generally for the proper
management of the Building.
15.8 SUPERIOR LEASE
15.8.1 To perform and observe all the covenants on the part of the
lessee contained in the Superior Lease (save those in relation
to the payments of rents thereunder) so far as they relate to
the Premises and are not expressly assumed by the Landlord in
this Underlease.
15.8.2 To indemnify and keep indemnified the Landlord against all
damages losses costs expenses actions demands proceedings claims
and liabilities made against or suffered or incurred by the
Landlord arising directly or indirectly out of any breach by the
Tenant of CLAUSE 15.8.1 of this Underlease.
15.8.3 Subject to the provisions of CLAUSE 5.3 of this Underlease, to
permit the Landlord to enter on the Premises to enable it to
comply with the covenants on its part contained in the Superior
Lease notwithstanding that the obligation to comply with such
covenants may be imposed on the Tenant by this Underlease.
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16. LANDLORD'S COVENANT
16.1 The Landlord agrees with the Tenant that, for so long as the Tenant
complies with the terms of this Underlease, the Tenant may hold and
use the Premises during the Term without any interruption (except as
authorised by this Underlease) by the Landlord or by any person
lawfully claiming through, under or in trust for the Landlord.
16.2 The Landlord covenants with the Tenant:-
(a) To pay the rents reserved by the Superior Lease in
accordance with the covenants therein contained.
(b) To take all reasonable steps to obtain the consent of
the Superior Landlord whenever the Tenant makes an
application for any consent required hereunder for which
the consent of the Superior Landlord is needed by virtue
of the Superior Lease in those cases where the Landlord
is willing to give its consent or could not reasonably
refuse or delay it provided that the Tenant shall pay
all costs and expenses reasonably and properly incurred
by the Landlord in relation to the application to the
Superior Landlord for consent (including the reasonable
and proper costs and expenses of the Superior Landlord
payable by the Landlord under the provisions of the
Superior Lease) whether consent is granted refused
granted subject to any qualification or whether the
application is withdrawn at the Tenant's request and
further provided that the Landlord shall not be liable
to the Tenant for refusing to grant a consent solely
because the Superior Landlord has unreasonably refused
to grant the relevant consent to the Landlord or granted
consent subject to unreasonable conditions provided that
at the request and cost of the Tenant the Landlord will
seek a declaration from the courts that the Superior
landlord is unreasonably withholding consent or has
granted consent subject to unreasonable conditions (as
applicable).
(c) To procure (at the Tenant's request and cost) compliance
by the Superior Landlord of its covenants in the
Superior Lease.
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16.3 As soon as it has exhausted its rights under the Agreement for Lease
in respect of any defect in the Building the Landlord shall use its
reasonable endeavours to enforce such rights and remedies which the
Landlord may have under the collateral warranties which it holds
relating to the redevelopment of the Building (the "Warranty
Agreements") in respect of any defect in the Building notified to
the Landlord by the Tenant and the Landlord shall expend any monies
recovered under the Warranty Agreements in making good such defects.
17. FORFEITURE
17.1 LANDLORD'S RIGHT OF RE-ENTRY
If any event set out in CLAUSE 17.2 occurs, the Landlord may forfeit
this Underlease and re-enter the Premises. The Term will then end,
but without prejudice to any claim which the Landlord may have
against the Tenant for any failure to comply with the terms of this
Underlease.
17.2 EVENTS GIVING RISE TO THE LANDLORD'S RIGHT OF RE-ENTRY
17.2.1 The Rent or any other sum payable under this Underlease has not
been paid 15 Working Days after it became due, whether formally
demanded or not.
17.2.2 The Tenant has failed to comply with the terms of this
Underlease.
17.2.3 The Tenant, if an individual (or if more than one individual
then any one of them):
(a) is the subject of a bankruptcy petition; or
(b) is the subject of an application for an interim order
under part VIII of the Insolvency ▇▇▇ ▇▇▇▇; or
(c) enters into any composition, moratorium or other
arrangement with its creditors, whether or not in
connection with any proceeding under the Insolvency ▇▇▇
▇▇▇▇; or
(d) a receiver of the income of the Premises is appointed
under section 101 of the Law of Property ▇▇▇ ▇▇▇▇.
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17.2.4 In relation to a Tenant which is a body corporate (or if more
than one body corporate then any one of them):
(a) a proposal for a voluntary arrangement is made under
part I of the Insolvency ▇▇▇ ▇▇▇▇ or the directors of
the Tenant resolve to make such a proposal;
(b) a petition for an administration order is presented
under part II of the Insolvency ▇▇▇ ▇▇▇▇ or the
directors of the Tenant resolve to present such a
petition;
(c) a receiver (including a receiver under section 101 of
the Law of Property Act 1925) or manager or
administrative receiver of its property (or part of it)
is appointed;
(d) a resolution for its voluntary winding up is passed
under part IV of the Insolvency ▇▇▇ ▇▇▇▇ or a meeting of
its creditors is called for the purpose of considering
that it be wound up voluntarily (in either case, other
than a voluntary winding up whilst solvent for the
purposes of and followed by a solvent reconstruction or
amalgamation);
(e) a petition for its winding up is presented to the court
under part IV or by virtue of part V of the Insolvency
Act 1986 or a resolution is passed that it be wound up
by the court; or
(f) an application is made under section 425 of the
Companies ▇▇▇ ▇▇▇▇ or a proposal is made which could
result in such an application.
17.2.5 The Tenant which is a body corporate (or if more than one body
corporate then any of them):
(a) enters or proposes to enter into any arrangement,
moratorium or composition (other than any referred to
above) with its creditors; or
(b) is dissolved, or is removed from the Register of
Companies, or ceases to exist (whether or not capable of
reinstatement or reconstitution).
18. NOTICES IN CONNECTION WITH THIS UNDERLEASE
18.1 Where a notice is to be given in connection with this Underlease, it
must be given in writing and signed by or on behalf of the party
giving it, unless it is stated that it need not be given in writing.
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18.2 Any notice to be given in connection with this Underlease will be
validly served if sent by first class post, or special delivery or
recorded delivery and addressed to or personally delivered to:
18.2.1 the Landlord at the address given in this deed or such other
address which the Landlord has notified to the Tenant in
writing;
18.2.2 the Tenant at the Premises or its registered office or its last
known address.
18.3 Any notice or demand sent by post from within the UK, and properly
stamped and correctly addressed will be conclusively treated as
having been delivered two Working Days after posting.
18.4 The Tenant shall give the Landlord verbal notice of any matter
affecting the Premises where emergency action is needed as well as
written notice.
19. MISCELLANEOUS
19.1 LANDLORD'S RIGHTS TO REMEDY DEFAULT BY THE TENANT
19.1.1 If the Tenant fails to comply with any of its obligations in
this Underlease, the Landlord may give the Tenant written notice
of that failure, and the Tenant shall:
(a) immediately in the case of an emergency; and
(b) otherwise as soon as practicable, but in any event
within one month of such notice,
begin and then, within a reasonable time, complete remedying
that failure.
19.1.2 If the Tenant does not comply with CLAUSE 19.1.1, the Landlord
may enter the Premises and carry out any works or do anything
else which may be needed to remedy the Tenant's failure to
comply with its obligations under this Underlease.
19.1.3 Any costs incurred by the Landlord by reason of CLAUSE 19.1.2
will be a debt due from the Tenant payable on demand and may be
recovered by the Landlord as if it were additional rent.
19.2 TENANT TO PROVIDE INFORMATION
19.2.1 The Tenant shall give the Landlord any information or documents
which the Landlord reasonably requests to show that the Tenant
is complying with its obligations in this Underlease.
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19.2.2 The Tenant shall give the Landlord immediate written notice of
any defect or default which may make the Landlord liable to the
Tenant or any third party.
19.3 TENANT'S INDEMNITY
The Tenant agrees to indemnify the Landlord at all times (both
during and after the Term) against all charges, claims, proceedings,
liabilities, damages, losses, costs and expenses arising directly or
indirectly from:
19.3.1 any works carried out at the Premises by or on behalf of the
Tenant or any undertenant or other occupier;
19.3.2 any breach of any of the Tenant's obligations in this
Underlease.
19.4 TENANT'S ACKNOWLEDGEMENT
The Tenant acknowledges that it has not entered into this Underlease
in reliance on any representation made by or on behalf of the
Landlord.
19.5 QUALIFICATION OF LANDLORD'S LIABILITY
The Superior Landlord and Landlord will not be liable to the Tenant
or any other person for:
19.5.1 any damage to person or property arising from any act, omission
or misfeasance by the Superior Landlord and/or the Landlord, or
its employees, agents or independent contractors, or from the
state and condition of the Premises or of any other part of the
Building or any adjoining property of the Landlord;
19.5.2 any interruption to the supply of Utilities to the Premises or
other parts of the Building;
19.5.3 any accidental damage to the Premises or to any property of the
Tenant or any other occupier of the Premises or their employees,
agents or independent contractors;
19.5.4 any accidental damage to any person occurring during the
performance by or on behalf of the Superior Landlord and/or the
Landlord of any service which the Tenant or other authorised
occupier of the Premises has requested the Superior Landlord
and/or the Landlord to carry out;
19.5.5 any act or omission of any other tenant or occupier of the
Building; or
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19.5.6 for any failure to perform any obligation in this Underlease,
unless the Tenant has given the Landlord written notice of the
facts giving rise to that failure and allowed the Landlord a
reasonable time to remedy the matter.
19.6 SALE OF GOODS AFTER END OF TERM
19.6.1 The Tenant irrevocably appoints the Landlord as its agent to
store or dispose of any items left by the Tenant at the Premises
more than 10 Working Days after the end of the Term.
19.6.2 The Landlord may store or dispose of such items after that time
as it thinks fit and without any liability to the Tenant, other
than to account to the Tenant for the proceeds of sale, after
deducting any costs of sale or storage incurred by the Landlord.
19.6.3 The Tenant agrees to indemnify the Landlord against any
liability incurred by the Landlord by reason of the Landlord
disposing of any items left at the Premises which do not belong
to the Tenant, but which the Landlord reasonably believed did
belong to the Tenant, which will be presumed unless the contrary
is proved.
19.7 ARBITRATION
Where this Underlease refers to a dispute being referred to
arbitration, it will be referred to a single arbitrator who will act
in accordance with the Arbitration ▇▇▇ ▇▇▇▇, and the referral will
be a submission to arbitration in accordance with that Act.
19.8 DISPUTES UNDER SUPERIOR LEASE
Any question or dispute arising under the Superior Lease which also
affects or relates to the provisions of this Underlease is to be
determined as provided in the Superior Lease and the determination
is to be binding on the Tenant as well as the Landlord for the
purposes both of the Superior Lease and this Underlease.
19.9 CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
Unless expressly stated nothing in this Underlease will create any
rights in favour of any person pursuant to the Contracts (Rights of
Third Parties) ▇▇▇ ▇▇▇▇.
19.10 EXCLUSION ORDER
Having been authorised to do so by an Order of the Mayors & City of
London Court made on the day of , 2000 the Landlord and the
Tenant
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agree that the provisions of sections 24 to 28 of the Landlord and
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ are excluded in relation to this Underlease.
20. OPTION TO DETERMINE
20.1 In this clause "TERMINATION DATE" means [ ](1).
20.2 Subject to the pre-conditions in CLAUSE 20.3 being satisfied on the
Termination Date, the Tenant may determine the Term on a Termination
Date by giving the Landlord not less than six month's written
notice. The Term will then determine on the Termination Date, but
without prejudice to any rights of either party against the other
for any antecedent breach of its obligations under this Underlease.
20.3 The pre-conditions to the determination of the Term on the part of
the Tenant pursuant to CLAUSE 20.2 are that:
20.3.1 vacant possession of the whole of the Premises is given to the
Landlord on the Termination Date; and
20.3.2 all Rent and other sums due under this Underlease up to the
Termination Date have been paid in full.
20.4 The Landlord may waive any of the pre-conditions set out in CLAUSE
20.3 at any time before the Termination Date by written notice to
the Tenant.
20.5 The Landlord may determine the Term on the Termination Date by
giving the Tenant not less than six months written notice. The Term
will then determine on the Termination Date, but without prejudice
to any rights of either party against the other for any antecedent
breach of its obligations under this Underlease.
20.6 Time will be of the essence for the purposes of this clause.
21. NEW OR OLD UNDERLEASE
This Underlease is a new tenancy for the purposes of Section 1 of
the Landlord and Tenant (Covenants) ▇▇▇ ▇▇▇▇
IN WITNESS of which this deed has been duly executed and is delivered on the
date written at the beginning of this deed.
Annexes: Reinstatement Specification
---------------
(1) Insert the date which is 7 years from date of Underlease.
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FIRST SCHEDULE
Authorised Guarantee Agreement
DATED
--------------------------------------------------------------------------------
GUARANTOR
and
[ ]
--------------------------------------------------------------------------------
AUTHORISED GUARANTEE AGREEMENT
in relation to
▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇
--------------------------------------------------------------------------------
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AUTHORISED GUARANTEE AGREEMENT
DATE
PARTIES
(1) [NOMINEE COMPANY] (incorporated and registered in England and Wales
under company number ),
the registered office of which is
at (the GUARANTOR); and
(2) [ ] (incorporated and registered in
England and Wales under company number[ ]),
the registered office of which is at [ ]
(the LANDLORD).
RECITALS
(A) By the Underlease the Premises were let to [ ]
for a term of 10 years from and including 13 June 2000.
(B) The reversion immediately expectant on the term created by the
Underlease remains vested in the Landlord and the residue of that term
remains vested in the Guarantor.
(C) The Underlease contains a covenant against assignment without the
consent of the Landlord.
(D) The Landlord has given its consent to an assignment to the Assignee,
subject to a condition that the Guarantor enters into an agreement
guaranteeing the performance of the tenant covenants by the Assignee in
the form of this deed.
(E) This deed is entered into by the Guarantor pursuant to that condition.
IT IS AGREED AS FOLLOWS:
1. DEFINITIONS
In this deed the following definitions apply:
"ASSIGNEE"
(company registration number
), the registered office of
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which is at ;
"GUARANTOR"
the first party to this deed and its successors in title;
"LANDLORD"
the second party to this deed and its successors in title;
"UNDERLEASE"
a lease made between The Landlord (1) and The Guarantor (2) and
dated
and any document varying or supplemental to such
lease whether entered into before or after the date of this
deed;
"PREMISES"
▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ as more particularly
described in the Underlease.
2. INTERPRETATION
2.1 The table of contents and clause headings are for reference only and
do not affect the construction of this deed.
2.2 The words "includes" and "including" shall be deemed to be followed
by the words "without limitation".
2.3 General words introduced by the word "other" do not have a
restrictive meaning by reason of being preceded by words indicating
a particular class of acts, things or matters.
2.4 Obligations owed by or to more than one person are owed by or to
them jointly and severally.
2.5 References to a person include an individual, a corporation,
company, firm or partnership or government body or agency, whether
or not legally capable of holding land.
2.6 References to "THE ACT" are to the Landlord and Tenant (Covenants)
▇▇▇ ▇▇▇▇ and any regulations and orders made under it and as it is
amended or consolidated from time to time.
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2.7 Unless otherwise specified, a reference to a clause is a reference
to a clause or sub-clause of this deed.
2.8 Where a sum is expressed to be payable on demand, it will become
payable, unless otherwise specified, 5 working days after the demand
has been made.
2.9 The expressions "INTEREST RATE" and "RENT" shall have the meanings
given to them in the Underlease.
2.10 The expression "tenant covenants" is to be construed consistently
with the Act but shall not include any tenant covenant expressed to
be personal to the Tenant or its predecessors in title.
3. GUARANTEE
3.1 The Guarantor irrevocably and unconditionally guarantees to the
Landlord that the Assignee will duly and punctually perform and
comply with all the tenant covenants of the Underlease until the
Assignee is released from those covenants by virtue of the Act.
3.2 The Guarantor agrees that if the Assignee, in respect of any time
before it is released by virtue of the Act, fails duly and
punctually to perform and comply with any of the tenant covenants in
the Underlease, it shall, on demand, perform or comply with such
covenant.
4. PRINCIPAL DEBTOR
As a separate and independent obligation under this deed the Guarantor
agrees that if any sum or obligation expressed to be guaranteed under
this deed is not recoverable from or enforceable against the Guarantor
or any sum expressed to be due under obligations is not recoverable from
the Guarantor on the basis of a guarantee (for whatever reason), the
Guarantor shall be liable as sole or principal debtor in respect of such
sum or obligation which shall be paid, performed or complied with by the
Guarantor on demand.
5. GUARANTOR TO TAKE A NEW UNDERLEASE
5.1 The Guarantor agrees that if a liquidator or trustee in bankruptcy
of the Assignee disclaims the Underlease, or the obligations of the
Assignee under it, or if the Underlease becomes bona vacantia and is
disclaimed, it will, if required by the Landlord within six months
of the Landlord having received notice of the disclaimer, take a new
lease of the Premises from the Landlord.
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5.2 The new lease shall:
5.2.1 be for a term commencing on the date of the disclaimer and be
equal to the unexpired residue of the term of years granted by
the Underlease (or the residue which would be unexpired but for
the disclaimer) as at the date of the disclaimer;
5.2.2 reserve a rent equal to the Rent reserved under the Underlease
immediately before the disclaimer, and otherwise be on the same
terms as the Underlease but with no provision for a rent free
period, and
5.2.3 take effect from the date of the disclaimer.
5.3 The new lease will take effect subject to the Underlease, if and to
the extent that it is still subsisting, and subject to any
underlease or other interest created or permitted by the Assignee or
its predecessors in title.
5.4 The Guarantor shall pay the Landlord's costs (on an indemnity basis)
in connection with the grant of the new lease and shall execute,
deliver and pay the stamp duty on a counterpart of it to the
Landlord.
6. SUPPLEMENTARY PROVISIONS
6.1 NO DISCHARGE OF THE GUARANTOR
Without prejudice to subsection 18(3) of the Act, the Guarantor's
liability under this deed will remain in full force and effect and
will not be released or discharged nor will the rights of the
Landlord be prejudiced or affected by the following:
6.1.1 any time, indulgence or concession granted by the Landlord to
the Assignee or to any other person who is liable;
6.1.2 the Landlord dealing with, exchanging, varying or failing to
perfect or enforce any of its rights or remedies against the
Assignee or any other person who is liable;
6.1.3 the existence of or dealing with, varying or failing to perfect
or enforce any other rights or security which the Landlord may
have or acquire against the Assignee or any other person who is
liable in respect of the Assignee's obligations under the
Underlease;
6.1.4 any variation of, addition to or reduction from the terms of the
Underlease, whether or not the same is substantial or is
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prejudicial to the Guarantor or confers only a personal right or
obligation;
6.1.5 any non-acceptance of the Rent or other sums due from the
Assignee under the Underlease, in circumstances where the
Landlord has reason to suspect a breach of the Assignee's
obligations under the Underlease;
6.1.6 the occurrence of any of the events set out in CLAUSE 18
(Forfeiture) of the Underlease;
6.1.7 a surrender of part of the Premises, except that the Guarantor
will have no liability in relation to the surrendered part in
respect of any period after the date of the surrender;
6.1.8 any incapacity or change in the constitution, status or name of
the Assignee or the Landlord;
6.1.9 any amalgamation, merger or reconstruction by the Landlord with
any other person or the acquisition of the whole or any part of
its assets or undertaking by any other person;
6.1.10 any voluntary arrangement entered into by the Assignee or any
other person who is liable with all or any of its creditors
(whether or not such arrangement binds or is expressed to bind
the Landlord); or
6.1.11 any other act or thing by virtue of which, but for this
provision, the Guarantor would have been released or discharged
from its obligations under this deed, or the rights of the
Landlord would have been prejudiced or affected, other than a
release by deed, entered into by the Landlord, in accordance
with the terms of such deed
and the parties acknowledge that each of the matters listed above is
separate and independent and is not to be interpreted in the light of
any other.
6.2 WAIVER OF RIGHTS BY THE GUARANTOR
6.2.1 Until all the liabilities expressed to be guaranteed by the
Guarantor under this deed have been paid, discharged or
satisfied irrevocably and in full, the Guarantor agrees not,
without the consent of the Landlord, to:
(a) exercise any of its rights in respect of the liabilities
expressed to be guaranteed under this deed against the
Assignee or any other person who is liable;
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(b) demand or accept repayment in whole or in part of any
indebtedness due to the Guarantor from the Assignee or
any other person who is liable, or demand or accept any
other security in respect of such indebtedness or in
respect of the obligations of the Guarantor under this
deed and any security received by the Guarantor in
breach of the above or any such security held by the
Guarantor at the date of this deed shall be held by the
Guarantor on trust for the Landlord and delivered to the
Landlord on demand;
(c) claim any legal or equitable set-off or counterclaim
against the Assignee or any other person who is liable;
or
(d) claim or prove in competition with the Landlord in the
liquidation or bankruptcy or in any administration or
receivership of the Assignee or any other person who is
liable, or have the benefit of or share in any payment
or distribution from or composition or arrangement with
the Assignee or any other person who is liable and any
money or other property received by the Guarantor in
breach of this shall be held by the Guarantor on trust
for the Landlord and delivered to the Landlord on
demand.
6.2.2 The obligations of the Guarantor under this deed may be enforced
by the Landlord against the Guarantor:
(a) at its discretion and without first enforcing or seeking
to enforce its rights against the Assignee or any other
person who is liable or under any other security or
resorting to any other means of payment; and
(b) as primary obligations and not merely as obligations of
a surety.
6.3 PAYMENTS IN GROSS
All dividends, compositions and moneys received by the Landlord from
the Assignee or any other person which are capable of being applied
by the Landlord in satisfaction of the liabilities expressed to be
guaranteed under this deed, will be regarded for all purposes as
payments in gross, and will not prejudice the right of the Landlord
to recover from the Guarantor the ultimate balance which, after
receipt of such dividends, compositions and moneys, may remain owing
or expressed to be owing to the Landlord.
6.4 GUARANTOR TO ENTER INTO SUPPLEMENTAL DOCUMENTS
As and when called upon to do so by either the Landlord or the
Assignee, the Guarantor shall enter into any document supplemental
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to the Underlease (by deed if required) for the purpose of
consenting to the Assignee entering into such supplemental document
and confirming that, subject only to subsection 18(3) of the Act,
all the obligations of the Guarantor will remain in full force and
effect in respect of the Underlease.
6.5 GUARANTOR TO REIMBURSE COSTS OF ENFORCEMENT
The Guarantor agrees to pay to the Landlord on demand, and on an
indemnity basis, all legal and other costs and charges which may be
payable by the Landlord in relation to the enforcement of the
Guarantor's obligations in this deed.
6.6 INTEREST
The Guarantor agrees to pay interest on each amount demanded of it
under this deed, at the Interest Rate until payment (both before and
after any judgment), except that where the sum demanded from the
Guarantor includes interest due from the Assignee at that rate and
the whole amount of the sum demanded is paid by the Guarantor
immediately on demand, the Guarantor will not be liable to pay
further interest on that sum.
6.7 NOTICES
Any notices given in connection with this deed must be in writing
and will be validly served if sent by first class post, or
registered post or by recorded delivery and addressed to the
Landlord or the Guarantor at its address given in this deed or, in
the case of the Landlord, at such other address as the Landlord has
notified to the Guarantor in writing. A notice sent by post from
within the UK and correctly addressed and properly stamped will be
conclusively treated as having been delivered two working days after
posting.
6.8 OTHER SECURITY HELD BY THE LANDLORD
This guarantee is in addition to any other guarantee or security or
any other right or remedy held by or available to the Landlord from
time to time.
7. SCOPE OF THIS DEED
7.1 The provisions of this deed will have effect from the date of the
instrument of the assignment of the Underlease to the Assignee.
7.2 The intention of the parties to this deed is that it should be an
authorised guarantee agreement within the meaning of the Act.
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7.3 If any provision, or any part of a provision, of this deed has the
effect of causing this deed not to be an authorised guarantee
agreement within the meaning of the Act to any extent, that
provision or part is to be treated as having been modified (or if
necessary omitted from this deed) to the extent needed to avoid that
effect.
7.4 Each of the provisions of this deed is separate and severable from
the others, and if at any time one or more of the provisions is or
becomes illegal, invalid or unenforceable (whether wholly or to any
extent), the legality, validity or enforceability of the remaining
provisions (or the same provision to any other extent) will not be
affected or impaired.
7.5 The rights of the Landlord under any clause are without prejudice to
the rights of the Landlord under any other clause or under the
Underlease or any other guarantee or security held by or available
to the Landlord.
7.6 The obligations of the Guarantor under any clause are without
prejudice to its obligations under any other clause or to the rights
of the Landlord under any other clause or the Underlease or any
other guarantee or security held by or available to the Landlord.
7.7 The rights of the Landlord under this deed shall subsist for the
benefit of the successors in title of the Landlord under the
Underlease without the need for any express assignment of the
benefit of them.
IN WITNESS of which this deed has been duly executed and is delivered on the
date written at the beginning of this deed.
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SECOND SCHEDULE
Service charge provisions
1.1 INTERPRETATION
In this Schedule, except where the context otherwise requires:
"SERVICE CHARGE PERIOD" means the period of twelve months ending on
and including 25th March in each year or such other period as the
Landlord may determine from time to time and which the Landlord
shall notify to the Tenant in writing;
"THE SECOND SERVICE CHARGE RENT" means nine point six four per cent
(9.64%) of the Total Costs for the Service Charge Period concerned;
and
"THE TOTAL COSTS" means the aggregate of the costs and expenses
properly incurred by the Landlord in providing the services
specified in Part 2 of this Schedule ("the Additional Services") and
defraying associated costs, charges and overheads incidental to the
Additional Services.
1.1 PAYMENT OF THE SECOND SERVICE CHARGE RENT
(A) The Tenant shall pay to the Landlord the Second Service Charge Rent
for each Service Charge Period beginning or ending during the Term.
(B) The Tenant shall make payments on account of the Second Service
Charge Rent in advance on the Quarter Days in each year of such
amounts as the Landlord may reasonably require and which the
Landlord has notified to the Tenant no less than one month before
the commencement of the relevant Service Charge Period.
(C) After the Landlord has submitted the summary of the Total Costs for
a Service Charge Period in accordance with this Schedule, if the
aggregate of the on account payments made by the Tenant differs from
the Second Service Charge Rent for the Service Charge Period
concerned then any shortfall shall be paid to the Landlord within
fourteen Working Days of demand and any over-payment shall either be
credited to the Tenant against the next on account payment of the
Second Service Charge Rent due under this Schedule or, at the end of
the Term and subject to the settlement of any outstanding sums due
to the Landlord under this Lease, returned to the Tenant forthwith.
(F) For the purpose of any apportionment in respect of a period shorter
than a Service Charge Period, the Second Service Charge Rent for the
Service Charge Period concerned will be deemed to accrue on a daily
basis.
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(G) Notwithstanding the ending of the Term, this paragraph will continue
to apply in respect of the then current and any earlier Service
Charge Periods but only in respect of sums owing up to the date of
termination of the Term.
(H) The Landlord shall not be entitled to include within the Total Costs
any sums incurred in respect of Additional Services which relate to
a period either before the date of this Underlease or after the end
of the Term.
1.2 SUMMARY OF THE TOTAL COSTS
(A) As soon as practicable after the end of each Service Charge Period,
the Landlord shall submit to the Tenant a summary of the Total Costs
for such period and a list of the Additional Services for that
Service Charge Period.
(B) At any time within twelve months from the date such summary is
submitted, the Tenant may after reasonable prior written notice have
access to the accounts, invoices and other materials from which such
summary is derived and at its own expense be provided with copies.
1.3 LANDLORD'S OBLIGATION TO PROVIDE SERVICES
(A) Subject to the payment by the Tenant of the Second Service Charge
Rent in accordance with this Schedule and to the following
provisions of this paragraph, the Landlord shall provide the
Additional Services efficiently, economically and in a manner
appropriate to high class professional offices in the City of
London.
(B) The Landlord is not to be liable for any failure to provide the
Additional Services to the extent that the Landlord is prevented
from doing so by an insured risk or other peril, accident, strike,
shortage of materials or power or other cause or circumstance beyond
the Landlord's control provided that the Landlord restores the
relevant service as soon as reasonably practicable.
(C) The Landlord will provide the Additional Services having regard to
the Building operating on a 24-hour basis.
(D) Except where the occupiers of the Building from time to time give
consent or in the interests of good estate management, the Landlord
covenants that the Additional Services shall not duplicate the
services provided by the Superior Landlord pursuant to the terms of
the Superior Lease.
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PART 2
1. Cleaning the Common Parts.
2. Providing security guards and patrols (whether employed by the
Tenant or engaged as Contractors) for the Building and ensuring
proper co-ordination between such security guards and patrols and
the Superior Landlord's security systems.
3. The maintenance of the security systems at the Building (including
the monitoring and control of vehicles and/or persons gaining access
to and egress from the car park).
4. Providing, maintaining and restocking floral and/or plant displays
on the Common Parts.
5. Staffing a reception and/or security desk in the entrance hall of
the Building.
6. Operating a general office function for the receipt of deliveries on
the lower ground floor of the Building and notifying the Tenant on
receipt of such deliveries.
7. Such other services as the Landlord and the Tenant may agree with
the other occupiers of the Building.
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( Executed as a deed by
( TEMPLE PROPERTY HOLDINGS LIMITED
( acting by:
Director
Director/Secretary
Executed as a deed by )
EXULT LIMITED acting by )
its attorney )
......................... )
in the presence of: )
...................................
Attorney
Signature of witness ....................
Name ....................................
Address .................................