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Exhibit 10.12
DATED 1996
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(1) THE GALILEO COMPANY
(2) LUCENT TECHNOLOGIES NETWORK SYSTEMS UK LIMITED
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U N D E R L E A S E
of
Premises known as OPTIMUS Windmill Hill Business Centre Swindon
THIS IS A NEW LEASE FOR THE PURPOSES OF
THE LANDLORD AND TENANT (COVENANTS) ▇▇▇ ▇▇▇▇
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▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
[LETTERHEAD]
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CONTENTS
1. DEFINITIONS ...................................................................... 1
2. DEMISE TERM RENT.................................................................. 2
3. TENANT'S COVENANTS................................................................ 3
3.1. RENT.............................................................. 3
3.2. INSURANCE......................................................... 4
3.3. OUTGOINGS......................................................... 5
3.4. MAINTENANCE AND REPAIR............................................ 5
3.5. INTERNAL DECORATION............................................... 6
3.6. EXTERNAL DECORATION............................................... 7
3.7. CLEANING.......................................................... 7
3.8. PARTY STRUCTURES ETC.............................................. 7
3.9. ENTRY............................................................. 8
3.10. YIELDING UP....................................................... 8
3.11. ALTERATIONS AND ADDITIONS......................................... 9
3.12. DISREPAIR AND BREACH OF COVENANT.................................. 10
3.13. SIGNS............................................................. 11
3.14. STATUTORY AND PLANNING REQUIREMENTS............................... 11
3.15. NOTICES........................................................... 12
3.16. OVERLOADING....................................................... 12
3.17. ENCROACHMENT...................................................... 12
3.18. NUISANCE AND GENERAL PROHIBITIONS................................. 13
3.19. USER.............................................................. 14
3.20. RIGHTS OF LIGHT................................................... 14
3.21. REFUSE............................................................ 15
3.22. DANGEROUS SUBSTANCES.............................................. 15
3.23. DRAINS............................................................ 15
3.24. CONTROL OF COMMON PARTS........................................... 16
3.25. DISPUTES.......................................................... 16
3.26. INDEMNITY......................................................... 16
3.27. SUPPORT........................................................... 18
3.28. SALE AND LETTING BOARDS........................................... 18
3.29. DILAPIDATIONS AND SECTION 146 LAW OF
PROPERTY ACT 1925............................................... 18
3.30. ALIENATION........................................................ 19
3.31. REGISTRATION OF DEALINGS.......................................... 25
3.32. LANDLORD'S COSTS.................................................. 25
3.33. VALUE ADDED TAX................................................... 25
3.34. REGULATIONS....................................................... 26
3.35. FIRE CONTROL...................................................... 26
3.36. DEDICATION........................................................ 26
3.37. INTEREST.......................................................... 26
3.38. OBLIGATIONS AFFECTING LANDLORD'S TITLE............................ 27
4. LANDLORD'S COVENANTS.............................................................. 27
4.1. QUIET ENJOYMENT................................................... 27
4.2. HEAD LEASE........................................................ 28
4.3. INSURANCE......................................................... 28
5. GALILEO'S COVENANTS............................................................... 29
6. PROVISOS .................................................................. 30
6.1. RE-ENTRY.......................................................... 30
6.2. CESSER OF RENT.................................................... 31
6.3. BASE RATE......................................................... 31
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6.4. ARREARS........................................................... 32
6.5. SETTLEMENT OF DISPUTES............................................ 32
6.6. EXCLUSION OF IMPLIED RIGHTS....................................... 32
6.7. UNRESTRICTED USE OF ADJOINING PROPERTY............................ 32
6.8. EXCLUSION OF LIABILITY............................................ 33
6.9. COMPENSATION...................................................... 33
6.10. PERPETUITY PERIOD................................................. 33
6.11. NO PLANNING WARRANTY.............................................. 34
6.12. OPTION TO DETERMINE............................................... 34
6.13. FREEDOM TO USE THE DEMISED PREMISES............................... 34
6.14. HEAD LEASE........................................................ 34
6.15. RELEASE OF COVENANTS.............................................. 35
6.16. REPRESENTATIONS................................................... 35
6.17. CERTIFICATE AS TO AGREEMENT FOR LEASE............................. 35
7. INTERPRETATION .................................................................. 36
SCHEDULE 1 Part I The demised premises....................................... 37
Part II Matters to which the demised premises
is subject...................................................... 37
SCHEDULE 2 Easements and Rights Granted...................................... 38
SCHEDULE 3 Exceptions and Reservations....................................... 39
SCHEDULE 4 Provisions for Rent Review........................................ 40
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THIS LEASE made the day of 1996
BETWEEN:-
(1) THE GALILEO COMPANY (Co. No. 2143570) whose registered office is at the
Galileo Centre Europe, Windmill Hill, Swindon SN5 6PH ("the Landlord" which
expression where the context admits includes the estate owner for the time being
of the reversion of the premises hereby demised expectant on the term hereby
granted) of the one part and
(2) LUCENT TECHNOLOGIES NETWORK SYSTEMS UK LIMITED (Co. No. 2022888) whose
registered office is at ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇ ▇▇▇ ("the Tenant"
which expression where the context admits includes his successors in title) of
the other part
WITNESSES as follows
1. DEFINITIONS
"COMMON PARTS OF THE DEVELOPMENT" - All parts of the Development which are
provided by the Superior Landlord for common use and enjoyment by the tenants
and occupiers of the Development
"DEMISED PREMISES" - The building and premises formerly known as Optimus,
Windmill Hill Business Centre Swindon and described in Part I of the First
Schedule hereto
"DEVELOPMENT" - The estate and premises thereon constructed from time to time
the extent whereof is for the purpose of identification only delineated and
edged blue on the plan annexed to the Head Lease
"ENACTMENT" - any and every Act of Parliament already or hereafter to be passed
and any and every order regulation and bye-law already or hereafter to be made
under or in pursuance of any such Act
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"HEAD LEASE" - A lease dated 2nd December 1987 between (1) St. Martins Property
Investments Limited and (2) the Landlord (then known as "Galileo Distribution
Systems Limited")
"LANDLORD'S SURVEYOR" - such person or persons appointed by the Landlord to
carry out various functions herein in respect of the demised premises
"SUPERIOR LANDLORD" - the person for the time being in whom the reversion
immediately expectant on the term created by the Head Lease shall be vested
"THE TERM" - the term of years hereby granted
"WORKING HOURS" - the hours of 8.30 a.m. to 6.00 p.m. on Mondays to Fridays
(except public holidays) and such other times or days as the Superior Landlord
shall decide pursuant to the Head Lease
2. DEMISE TERM RENT
IN CONSIDERATION of the rents hereinafter reserved and of the Tenant's covenants
hereinafter contained the Landlord HEREBY DEMISES with limited title guarantee
unto the Tenant ALL THOSE the demised premises TOGETHER WITH the rights set out
in the Second Schedule hereto but EXCEPTING AND RESERVING unto the Landlord and
its predecessors in title and those deriving title from the Landlord as
mentioned in the Third Schedule hereto and EXCEPTING AND RESERVING unto the
Superior Landlord the matters excepted and reserved by the Head Lease TO HOLD
the same unto the Tenant SUBJECT to all rights of light and air and all other
easements rights quasi-easements and covenants (if any) affecting the demised
premises at the date hereof and subject to the matters described in Part II of
the First Schedule hereto for a term of years commencing on the date hereof and
expiring on the 22nd day of March 2013 YIELDING AND PAYING therefor unto the
Landlord yearly during the Term and so in proportion for any less time than a
year FIRST (a) during the period from the commencement of the Term until the
24th day of March 1998 a YEARLY RENT of EIGHT HUNDRED AND SEVENTY THREE THOUSAND
SEVEN HUNDRED AND SIXTY THREE POUNDS (L873,763) and (b) during the remainder of
the Term such yearly rent as
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shall from time to time be equivalent to the yearly rent (including for the
avoidance of doubt sums in respect of rent pursuant to paragraph 8 of the Fourth
Schedule to the Head Lease) payable under the Head Lease as varied from time to
time provided that if the Head Lease shall cease to exist then such other yearly
rent as shall be determined in accordance with the provisions of the Fourth
Schedule hereto all and any such yearly rent to be paid clear of all deductions
whatsoever by equal quarterly payments in advance on the usual quarter days in
every year SECONDLY by way of further rent on demand (a) the sum or sums which
the Landlord shall from time to time throughout the Term pay or have paid to the
Superior Landlord in respect of (i) the rent secondly reserved by the Head Lease
(ii) any increased premiums expended by the Superior Landlord occasioned by the
nature of the occupation or business of the Tenant or use of the demised
premises (b) the sum or sums incurred by the Landlord in respect of insurance
throughout the Term against (i) loss of the rents hereby reserved due to damage
or destruction caused by a risk against which insurance shall have been effected
under the terms of the Head Lease in an amount being the Landlord's Surveyor's
reasonable estimate of the rent first hereby reserved in respect of the demised
premises for the period of three years and (ii) any liability of the Landlord to
the public or third parties arising out of or in connection with any matters
involving or relating to the demised premises THIRDLY by way of further rent on
demand the sum or sums which the Landlord shall from time to time throughout the
Term pay or have paid to the Superior Landlord in respect of the rent thirdly
reserved by the Head Lease and FOURTHLY all and any other sums payable to the
Landlord by the Tenant pursuant to the provisions of this Lease
3. TENANT'S COVENANTS
THE Tenant HEREBY COVENANTS with the Landlord as follows:-
3.1. RENT
To pay to the Landlord the rents hereinbefore reserved and made payable without
any deduction whatsoever at the times and in the manner aforesaid
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3.2. INSURANCE
3.2.1. Not without the previous consent in writing of the Landlord to effect any
further or other insurance in respect of the demised premises in duplication to
the cover effected by the Superior Landlord or the Landlord
3.2.2. To comply with all the recommendations and requirements made in or under
any policy of insurance relating to the demised premises by any insurer (unless
the Tenant elects to pay the additional premium required by the insurers for
continuing cover without such compliance)
3.2.3. To comply with all recommendations and requirements made by any
appropriate authority with regard to fire health safety or otherwise
3.2.4. As often as the demised premises shall be destroyed or damaged forthwith
to notify the Landlord and Superior Landlord in writing
3.2.5. Not to carry on or do on the demised premises any trade or act in
consequence of which the Superior Landlord would or might be prevented from
insuring the demised premises or any other adjoining property for the time being
owned by the Superior Landlord at the ordinary rate of premium or whereby any
insurance effected in respect of the demised premises or any such other property
would or might be vitiated or prejudiced and not without the written consent of
the Landlord (such consent not to be unreasonably withheld) to do anything
whereby any additional premium may become payable for such insurance and the
Tenant shall pay for any additional premium incurred by the Landlord or the
Superior Landlord as the case may be
3.2.6. That in the event of the demised premises or any adjoining or
neighbouring property for the time being owned by the Superior Landlord or any
part thereof being destroyed or damaged by any of the risks against which
insurance is effected pursuant to the Head Lease and the insurance money under
any insurance against the same effected thereon by the Superior Landlord being
wholly or partly irrecoverable by reason solely or in part of any act or default
of the Tenant or the servants
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agents or visitors of the Tenant then and in every such case the Tenant will
forthwith pay to the Superior Landlord the whole or (as the case may require)
the irrecoverable proportion of the costs and expenses incurred by the Superior
Landlord (including legal costs and surveyor's fees and other professional costs
and fees and disbursements) of completely rebuilding and reinstating the same
3.3. OUTGOINGS
To pay and discharge all rates taxes duties charges assessments impositions and
outgoings whatsoever whether Parliamentary Parochial local or otherwise and
whether or not of an annual or recurring nature (other than any such arising in
respect of any development dealing with disposition of or in or ownership of the
reversion mediately or immediately expectant on the Term or the right to
receive the rent payable hereunder) which are now or which may at any time
during the Term be assessed charged or imposed upon or payable in respect of the
demised premises or any part thereof or on the owner or occupier thereof whether
the same shall be in the nature of those now in being or not and/or to refund to
the Landlord on demand (in case any of the same are payable charged or assessed
in respect of the demised premises in common with other premises) a fair and
proper proportion thereof attributable to the demised premises to be properly
and reasonably determined by the Landlord's Surveyor or as may be determined
under clause 3.3 of the Head Lease as appropriate
3.4. MAINTENANCE AND REPAIR
3.4.1. From time to time and at all times during the Term well and substantially
to repair cleanse maintain amend and keep in good and substantial repair and
condition the demised premises and the appurtenances thereof including (but
without limitation) all carpets therein (damage by any of the risks against
which insurance shall have been effected under the Head Lease (in excess of any
policy excesses) excepted unless the policy or policies of insurance effected by
the Superior Landlord shall be vitiated or payment of the policy moneys refused
by reason of the act or default of the Tenant or the servants
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agents or visitors of the Tenant) and where necessary in order to comply with
such covenant to repair as aforesaid to renew or replace the demised premises or
any part or parts thereof if the same shall so require or become beyond repair
or if the same shall require renewal or replacement by reason of any defect
therein AND to inform the Landlord and the Superior Landlord in writing at once
if the Tenant becomes aware of any defect in the demised premises
3.4.2. Not to remove or dispose of any machinery or plant comprising landlord's
as opposed to tenant's fixtures and fittings whether or not in the course of
renewing or replacing the same (except to the extent that the same are comprised
in a permitted dealing with the demised premises) without the Landlord's
previous written consent such consent not to be unreasonably withheld
3.4.3. From time to time and at all times during the Term to maintain and repair
in good working order and if and when necessary (but subject to Clause 3.4.2
hereof) to renew or replace the smoke-extractor air-conditioning heating
ventilating electrical water and sanitary installations and all other plant
machinery and equipment within the demised premises and forming part thereof
(damage as aforesaid excepted) and to procure that the same are properly and
regularly serviced by qualified persons approved by the manufacturers of such
plant machinery and equipment
3.4.4. Not to overload the electrical wiring installations and apparatus in or
serving the demised premises and at all times during the Term to ensure that the
same comply with the standards terms and conditions laid down by the Institution
of Electrical Engineers and the regulations of the Electricity Supply Authority
3.5. INTERNAL DECORATION
In the last year of the first period and of every consecutive period of five
years of the Term and also in the last year of the Term (howsoever determined)
to paint polish paper or otherwise treat as appropriate all the internal parts
(usually or requiring to be painted polished papered
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or otherwise treated) of the demised premises and all additions and fixtures
thereto with two coats at least of best quality paint best quality polish or
other suitable material of best quality PROVIDED ALWAYS that in the last year of
the Term such work of painting and decoration shall be in tints colours and
designs previously approved in writing by the Landlord PROVIDED FURTHER that the
obligation contained in this sub-clause shall not apply in the case of the last
year of the Term if the Tenant shall have performed such obligation less than 18
months prior to the end of the Term
3.6. EXTERNAL DECORATION
In the year 1999 and in the last year of every consecutive period of three years
of the Term and also in the last year of the Term (howsoever determined) to
paint or otherwise treat as appropriate all the external parts (usually or
requiring to be painted or otherwise treated) of the demised premises with two
coats at least of best quality paint or other suitable material of best quality
in tints colours and designs previously approved in writing by the Landlord
PROVIDED FURTHER that the obligation contained in this sub-clause shall not
apply in the case of the last year of the Term if the Tenant shall have
performed such obligation less than 18 months prior to the end of the Term
3.7. CLEANING
At all times during the Term to keep the demised premises in a clean and tidy
condition and at least once in every month to clean the windows and window
frames of the demised premises and as often as occasion may require to wash down
all tiles and other washable surfaces
3.8. PARTY STRUCTURES ETC.
To pay on demand to the Landlord the sum or sums from time to time paid by the
Landlord to the Superior Landlord pursuant to the provisions of clause 3.8 of
the Head Lease
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3.9. ENTRY
3.9.1. To permit the Landlord and all others authorised by it at all reasonable
times on not less than 72 hours' prior notice (except in emergency) to enter
upon the demised premises to view the state of repair and condition thereof and
to take a Schedule of the Landlord's fixtures and of any defects or
dilapidations or to do anything which the Landlord reasonably considers
necessary or desirable for the performance by the Landlord of its obligations
hereunder or under the Head Lease
3.9.2. To permit the Landlord and the Superior Landlord and (if authorised in
writing by the Landlord or the Superior Landlord) the owners lessees or
occupiers of adjoining or adjacent premises and their respective agents servants
contractors licensees and workmen with all necessary appliances at all
reasonable times on not less than 72 hours' prior notice (and at all times
without notice in case of emergency) to enter upon the demised premises for all
or any of the purposes mentioned in the Third Schedule hereto and/or the Third
Schedule to the Head Lease
PROVIDED THAT the person or persons entering upon the demised premises pursuant
to Clauses 3.9.1 and 3.9.2 shall do as little damage to the demised premises as
possible and make good all damage to the demised premises occasioned by such
entry and shall cause as little inconvenience as reasonably possible and shall
comply with all reasonable requirements of the Tenant as to the security of the
demised premises including (but not by way of limitation) a requirement that an
authorised representative of the Tenant should accompany such person or persons
at all times
3.10. YIELDING UP
At the expiration or sooner determination of the Term quietly to yield up unto
the Landlord the demised premises together with all additions and improvements
thereto and all fixtures which during the Term may be affixed or fastened to or
upon the demised premises (tenant's fixtures and fittings only excepted) in such
state and condition as shall in all respects be consistent with the full
performance by the Tenant of its covenants herein contained and in case any of
the Landlord's fixtures and
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fittings shall be missing worn out broken damaged or destroyed forthwith to
replace them with others of a similar character and of equal value and to remove
the Tenant's fixtures and fittings including every moulding sign writing or
painting of the name or business of the Tenant or other occupiers from the
demised premises and to make good all damage caused to the demised premises by
such removal
3.11. ALTERATIONS AND ADDITIONS
3.11.1. Not at any time during the Term to make any alterations or additions to
the electrical installation of the demised premises save in accordance with the
standards terms and conditions laid down by the Institution of Electrical
Engineers and the regulations of the Electricity Supply Authority and not to
make any substantial such alteration or addition without the prior written
consent of the Landlord such consent not to be unreasonably withheld
3.11.2. Not at any time during the Term to construct any new or additional
building or structure on the demised premises nor make any alteration or
addition whatsoever structural or otherwise (save as hereinafter provided) in or
to the demised premises or any part thereof or change the existing design
elevation or the external decorative scheme thereof or cut maim or remove any of
the walls horizontal or vertical partitions beams columns or other structural
parts thereof
3.11.3. Subject to prior compliance with the following conditions the Tenant may
carry out non-structural internal alterations to the demised premises:
3.11.3.1 The Tenant shall not interfere with any sewers drains wires cables
pipes channels watercourses conduits subways or other conducting media which may
at any time be or run under in or through the demised premises or cause access
to the same to be or become more difficult than it now is
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3.11.3.2 The Tenant shall supply to the Landlord seven copies of all plans and
specifications and any further information which the Landlord may reasonably
require at the cost of the Tenant; and
3.11.3.3 The prior written consent of the Landlord shall have been obtained such
consent not to be unreasonably withheld or delayed PROVIDED ALWAYS that the
Tenant shall be entitled to erect or remove internal demountable partitioning
and/or effect minor plumbing alterations or additions without such consent as
aforesaid
3.11.4. That if the Tenant shall have made or shall make any addition or
alteration to the demised premises either before or after the commencement of
the Term then at the expiration or sooner determination thereof the Tenant will
(if so required by the Landlord or the Superior Landlord but not otherwise) at
the Tenant's own cost and expense reinstate and make good to the satisfaction of
the Landlord and the Superior Landlord the demised premises and restore the same
to the plan and design as if such addition or alteration (or such of them as may
be specified by the Landlord or the Superior Landlord) had not been made and
will pay the costs and expenses properly and reasonably incurred by the Landlord
and the Superior Landlord (including legal costs and surveyors fees and other
professional costs and fees) of and incidental to the superintendence of such
reinstatement and making good PROVIDED THAT the Tenant shall not be obliged by
this clause to reinstate any works carried out by another party not under
obligation to it nor before the date of its first occupation of the demised
premises and in particular (but without prejudice to the generality of the
foregoing) shall not be obliged to reinstate any works authorised by the Licence
dated 23rd August 1995 made between (1) St. Martins Property Investments Limited
and (2) the Landlord nor the conservatory constructed in the Central Courtyard
of the building
3.12. DISREPAIR AND BREACH OF COVENANT
3.12.1. Well and substantially to repair remedy reinstate and make good with all
practicable speed all defects dilapidations unauthorised works and other
breaches of covenant of which notice in writing shall be given
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to or left on the demised premises for the Tenant by the Landlord commencing
work within six weeks (or sooner if requisite) after the giving or leaving of
such notice and then proceeding diligently
3.12.2. If the Tenant shall fail to comply with Clause 3.12.1 hereof to allow
the Landlord or the Superior Landlord with all necessary workmen tools materials
and appliances to enter the demised premises to repair reinstate and make good
the same and to pay to the Landlord or the Superior Landlord on demand the costs
and expenses thereof
3.13. SIGNS
Not to erect or install any hanging sign projecting sign or other sign aerial or
similar thing on the exterior of the demised premises PROVIDED that this
covenant shall not prevent the inscription on the exterior of the building
constructed on the demised premises and a sign at the entrance to the demised
premises from the estate road in each case in a form style and manner as shall
have been previously approved in writing by the Landlord (such approval not to
be unreasonably withheld) of the name or names of the person or persons carrying
on business therein together with the description of his her or their business
or occupation
3.14. STATUTORY AND PLANNING REQUIREMENTS
3.14.1. At all times during the Term to observe and comply in all respects with
the provisions and requirements of any and every Enactment so far as it may
relate to or affect the demised premises or any works additions or improvements
therein or thereto or the user thereof or the employment therein of any person
and to execute all works and provide and maintain all arrangements and make all
payments which by or pursuant to any Enactment are or may be directed or
required to be executed provided maintained or made at any time during the Term
and to indemnify the Landlord at all times against all actions proceedings
claims costs charges and expenses of or incidental to the execution of any works
or the provision or maintenance of any arrangements or payments so directed or
required as aforesaid or otherwise arising from any contravention of any
Enactment save insofar as the Landlord is able to recover in respect
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of the same pursuant to the Landlord's insurance referred to in part (b)(ii) of
the rents secondly reserved hereunder
3.14.2. Not at any time during the Term to do or omit on or about the demised
premises any act or thing by reason of which the Landlord may under any
Enactment incur or have imposed upon it or become liable to pay any penalty
damages compensation costs charges or expenses
3.14.3. Not to make any application for planning permission relating to the
demised premises or any part thereof or the user thereof
3.15. NOTICES
Within seven days of the receipt of notice of the same (whether by advertisement
or not) to give full particulars to the Landlord of any permission notice order
or proposal for a notice or order made given or issued to the tenant owner or
occupier of the demised premises pursuant to any Enactment and if so required by
the Landlord to produce such permission notice order or proposal for a notice or
order to the Landlord AND ALSO without delay to take all reasonable or necessary
steps to comply with any such notice or order AND ALSO at the request of the
Landlord but at the joint and equal cost and expense of the Tenant and the
Landlord to make or join with the Landlord in making such objections or
representations against or in respect of any such notice order or proposal as
aforesaid as the Landlord shall think fit
3.16. OVERLOADING
Not to overload any floor or roof of the demised premises so as to exceed the
permitted loadings thereof
3.17. ENCROACHMENT
Not knowingly to permit or suffer any encroachment upon the demised premises or
the acquisition of any new right of light way drainage or other easement on over
or under the demised premises for the benefit of other property not being the
property of the Landlord and if any such
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encroachment or easement shall be made or acquired or threatened to be made or
acquired forthwith to give notice in writing thereof to the Landlord and at the
joint and equal cost of the Landlord and the Tenant to do all such things as may
be necessary to prevent the making of such encroachment or the acquisition of
such easement or right PROVIDED ALWAYS that if the Tenant shall omit or neglect
to do all such things as aforesaid it shall be lawful for the Landlord or any
persons authorised by it to enter the demised premises and to do the same and
any expenses so incurred by the Landlord shall be repaid to the Landlord by the
Tenant on demand
3.18. NUISANCE AND GENERAL PROHIBITIONS
3.18.1. Not to do or permit to be done anything in the demised premises which
may in the reasonable opinion of the Landlord be prejudicial or detrimental to
the Landlord or be or become a nuisance annoyance or cause damage or
inconvenience to the Landlord or its tenants or the owners tenants or occupiers
of adjoining or nearby premises
3.18.2. Not to use the demised premises or any part thereof for any sale by
auction exhibition show or spectacle or for residential purposes or for any
illegal or immoral purpose or for any noxious offensive or noisy trade or
business
3.18.3. Not to use any radio or other sound producing apparatus so as to be
audible from outside the demised premises
3.18.4. Not without the Landlord's prior written consent (such consent not to be
unreasonably withheld) to install or use in the demised premises any equipment
which might (by the emission of any radiation vibration or otherwise) interfere
with any equipment which may be installed or used in any other premises in the
Development PROVIDED THAT this sub-clause shall not impose on the Tenant any
liability to the Landlord or any third party greater than that implied by the
common law should any equipment so installed or used in any other premises in
the Development be of an unusually or especially sensitive nature
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3.18.5.1 Not without the Landlord's prior written consent (such consent not to
be unreasonably withheld) to install in the demised premises any paraffin
burning apparatus whether for heating purposes or otherwise nor cause the
emission of any smoke effluvia vapour grit smell or odour from any apparatus on
the demised premises
3.18.5.2 Subject to the provisions of 3.18.5.1 on a written notice being served
by the Landlord requiring the abatement of any emission of smoke effluvia vapour
grit smell or odour to ▇▇▇▇▇ such emission accordingly as soon as possible
thereafter
3.18.6. To pay on demand all costs charges and expenses incurred by the Landlord
in abating a nuisance caused by the Tenant or his servants agents or visitors
and in executing all such works as may be necessary for abating such a nuisance
whether or not in obedience to a notice served by the local authority
3.19. USER
Not to use the demised premises or any part thereof except as High Class
Professional or Commercial Offices with ancillary car parking or for any purpose
comprising a use which may be carried on without detriment to the Landlord's
reversion or the amenity of the Development within Class B1 of the Schedule to
the Town and Country Planning (Use Classes) Order 1987
3.20. RIGHTS OF LIGHT
Not to stop up darken or obstruct any windows or lights belonging to the demised
premises or any other buildings belonging to the Landlord nor to give to any
third party any acknowledgment that the Tenant enjoys the access of light to any
of the windows or openings in the demised premises by the consent of such third
party nor to pay to such third party any sum of money nor to enter into any
agreement with such third party for the purpose of inducing or binding such
third party to abstain from obstructing the access of light to any of such
windows or openings And that in case the owners of adjacent land or buildings do
or threaten to
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do anything which obstructs the access of light to any of the windows or
openings in the demised premises the Tenant will give immediate notice thereof
to the Landlord and will adopt such means as may be reasonably required or
deemed proper for preventing the same And in the event of a breach by the Tenant
of this covenant it shall be lawful for the Landlord or its agents and others to
enter upon the demised premises and take such action and bring such proceedings
as the Landlord may think fit in the name of the Tenant and at the expense of
the Tenant for the purpose of remedying the same the person or persons entering
upon the demised premises pursuant to this Clause 3.20 complying with all
reasonable requirements of the Tenant as to the security of the demised premises
including (but not by way of limitation) a requirement that an authorised
representative of the Tenant should accompany such person or persons at all
times
3.21. REFUSE
3.21.1. Not to form a rubbish dump on the demised premises or in the common
parts of the Development and to keep all rubbish and refuse within the demised
premises and in properly covered receptacles to the reasonable satisfaction of
the Landlord
3.21.2. To comply with all reasonable directions and regulations made by the
Landlord from time to time relating to the removal storage and disposal of
rubbish and refuse
3.22. DANGEROUS SUBSTANCES
Not to bring into the demised premises or to place or store in or about the
demised premises any substance or material of a radioactive explosive dangerous
offensive combustible or inflammable nature save as may be agreed with the
Landlord (such agreement not to be unreasonably withheld)
3.23. DRAINS
Not to stop up or obstruct in any way whatsoever or permit oil grease or other
noxious or deleterious matter or substance to enter the drains
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sewers and watercourses serving the demised premises and to employ such plant
for treating any noxious or deleterious effluent before permitting the same to
enter such drains sewers and watercourses as may be reasonably required by the
Landlord from time to time in accordance with the best modern practice and in
the event of any such obstruction or injury being caused to the drains sewers or
watercourses forthwith to make good all such damage to the reasonable
satisfaction of the Landlord
3.24. CONTROL OF COMMON PARTS
3.24.1. Not to obstruct the common parts of the Development in any manner
whatsoever
3.24.2. Not to use the common parts of the Development for the parking of
vehicles
3.24.3. To co-operate with the Superior Landlord so as to prevent the common
parts of the Development from being obstructed or being used for the parking of
vehicles
3.25. DISPUTES
To permit all questions and disputes relating to easements rights privileges or
boundaries arising with the owner or occupier of any property adjoining adjacent
to or opposite the demised premises to be settled by the Superior Landlord under
the terms of clause 3.25 of the Head Lease and to indemnify the Landlord with
any expense incurred by the Landlord pursuant to such clause 3.25
3.26. INDEMNITY
3.26.1. Save to the extent that the Landlord is able to recover in respect of
the same pursuant to the Landlord's insurance mentioned in part (b)(ii) of the
rents secondly reserved hereunder to indemnify the Landlord in respect of all
actions proceedings liability costs claims and demands which might be instituted
incurred or made by any person
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(including officers and employees of the Landlord) or any competent authority by
reason of:
3.26.1.1 Any injury to or the death of any person or damage to any property
moveable or immoveable caused by or in any way arising out of the user of the
demised premises or the state of repair and condition of the demised premises or
anything therein arising from any act neglect or default of the Tenant or caused
by or in any way arising out of the execution by or on behalf of the Tenant of
any works at or alterations or additions to the demised premises
3.26.1.2 Any interference or alleged interference or obstruction of any right or
alleged right of light air drainage or other right or alleged right now or
hereafter existing for the benefit of any adjoining or neighbouring property
arising from any act or neglect of the Tenant its agents employees or visitors
3.26.1.3 Any stoppage of or damage to the sewers drains pipes wires cables or
other conveniences and services used in common with the owner tenant or occupier
of any adjoining neighbouring or nearby property arising from any act or neglect
of the Tenant its agents employees or visitors
3.26.2. Without prejudice to any covenant or liability of the Tenant under this
Lease to indemnify the Landlord against all liability to any present or future
tax duty charge assessment or imposition (whether Parliamentary Parochial local
or otherwise and whether in the nature of those now in being or not) and all
costs and expenses in relation thereto which may be payable in respect of the
reversion to this Lease by virtue of any works development or change of use
carried out by the Tenant (or any sub-tenant) in or to the demised premises or
any part thereof and also against any further liability to such taxation flowing
from this indemnity or any payment pursuant to it
3.26.3. To pay and make good to the Landlord all and every loss and damage
incurred or sustained by the Landlord as a consequence of every breach or non
observance of the Tenant's covenants herein contained and
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to indemnify the Landlord from and against all actions proceedings costs claims
and demands thereby arising
3.27. SUPPORT
Not to do anything on the demised premises which would remove support from any
adjoining premises or endanger such premises in any way
3.28. SALE AND LETTING BOARDS
To permit the Landlord and the Superior Landlord to enter upon the demised
premises and affix and retain without interference upon any part thereof at any
time during the last six months of the Term a notice for letting the demised
premises and at any time during the Term for selling or disposing of the
Landlord's or the Superior Landlord's interest therein and during such periods
to permit all persons with authority from the Landlord or the Superior Landlord
at all reasonable times during the daytime upon reasonable notice to enter and
view the demised premises or any part thereof the person or persons entering
upon the demised premises pursuant to this sub-clause complying with all
reasonable requirements of the Tenant as to security including (but not by way
of limitation) a requirement that an authorised representative of the Tenant
shall accompany such person or persons at all times
3.29. DILAPIDATIONS AND SECTION 146 LAW OF PROPERTY ACT 1925
To pay all reasonable costs charges and expenses (including solicitors' costs
and surveyors' fees) properly incurred by the Landlord:
3.29.1. In or in contemplation of the preparation and service of any notice
pursuant to or any proceedings under Sections 146 and 147 of the Law of Property
▇▇▇ ▇▇▇▇ notwithstanding that forfeiture may be avoided otherwise than by relief
granted by the Court
3.29.2. In relation to the preparation and service of any Notice and/or Schedule
of Dilapidations whether during or after the expiration or prior determination
of the Term
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3.29.3. In the supervision or superintendence of any works to be carried out in
pursuance of any Notice and/or Schedule of Dilapidations whether or not such
works shall be carried out during or after the expiration or prior determination
of the Term
3.30. ALIENATION
3.30.1.1 Not to assign mortgage or underlet the whole or any part of the demised
premises at any time prior to the 1st July 1996
3.30.1.2 Not to assign mortgage or charge part only of the demised premises
3.30.1.3 Not to underlet part with or share the possession or occupation of the
whole or any part of the demised premises (save as hereinafter provided)
3.30.2. Not to assign mortgage or charge the whole of the demised premises
without the prior written consent (a) of the Landlord which (subject to the
satisfaction of the relevant conditions referred to in clause 3.30.3) shall not
be unreasonably withheld or delayed and as a condition of granting its consent
to any assignment of the demised premises it shall not be unreasonable for the
Landlord to require the Tenant to enter into an Authorised Guarantee Agreement
with the Landlord (such Authorised Guarantee Agreement to be in a form compliant
with s.16 Landlord and Tenant (Covenants) ▇▇▇ ▇▇▇▇ and reasonably acceptable to
the Landlord) that the relevant assignee will duly observe and perform the
Tenant's covenants contained in this Lease during such period only as such
assignee remains the Tenant hereunder and (b) of the Superior Landlord in
accordance with the provisions of clause 3.30.5.1.2 of the Head Lease
3.30.3. It shall not be unreasonable for the Landlord to withhold its consent to
any proposed assignment if any of the conditions ("the relevant conditions") set
out below shall not have been satisfied:-
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3.30.3.1 that the proposed assignee is not a person or company connected with
the Tenant within the meaning of Section 839 of the Taxes Act 1988 and a
proposed assignee shall be deemed for the purposes of this clause to be
connected with the Tenant in relation to any assignment or proposed assignment
if such person is dealing with the Tenant with regards to such proposed
assignment otherwise than at arms length
3.30.3.2 that (where the proposed assignee is a limited liability company whose
shares are publicly traded on a recognised stock exchange in the United Kingdom)
the audited reported profits after tax of such proposed assignee in each of the
three years immediately preceding the date of the Tenant's request to the
Landlord for consent to assign have exceeded three times the yearly rent first
reserved by this Lease
3.30.3.3 that at the date of the Tenant's request to the Landlord for consent to
assign the Yearly Rent and all sums due and payable by the Tenant to the
Landlord hereunder have been paid up to date and the covenants on the part of
the Tenant herein contained have been observed and performed in all material
respects to the reasonable satisfaction of the Landlord
3.30.3.4 that the Landlord shall be reasonably satisfied that the market value
and marketability of the Landlord's interest in the demised premises with the
benefit of the Lease will not be adversely affected in a material way by the
assignment of this Lease to the proposed assignee when compared with the
position immediately prior to such assignment
3.30.3.5 that (where the proposed assignee is not a limited liability company
whose shares are publicly traded on a recognised stock exchange in the United
Kingdom) the proposed assignee is able:-
(i) to establish that net profits after tax:-
(a) for each of the last three consecutive periods of account for which the
accounts of the proposed assignee were prepared immediately preceding the
application for consent to the proposed assignment exceed
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the yearly rent hereby first reserved at the rate then passing multiplied by
three; and
(b) for the five consecutive periods of account for which the accounts of the
proposed assignee are prepared immediately preceding the application for the
consent to the proposed assignment exceed in the average the yearly rent hereby
first reserved at the rate then passing multiplied by a factor of two; or
(ii) to procure as a party to the Licence to Assign a guarantor (reasonably
acceptable to the Landlord) for the obligations of the proposed assignee
3.30.4. The Landlord shall act reasonably in exercising its powers under this
Clause 3.30 but in the event that there shall be any dispute between the
Landlord and the Tenant as to whether the Landlord has acted reasonably in
determining whether those conditions referred to in sub-clauses 3.30.3.3 to
3.30.3.5 (inclusive) shall or shall not have been satisfied the Tenant shall
have an unrestricted right to have the matter in dispute referred for
determination to an independent surveyor (hereinafter called "the Assignment
Expert") agreed upon by the Landlord and the Tenant or failing agreement within
10 days of one party notifying the other in writing that a dispute has arisen
appointed on the application of either the Landlord or the Tenant by the
President for the time being or other appropriate officer having power from time
to time to make such appointments of the Royal Institution of Chartered
Surveyors (hereinafter called "the President")
3.30.5. The Assignment Expert shall act as an expert and not an arbitrator and
he shall afford the Landlord and the Tenant a reasonable opportunity of making
written representations to him as to the matter in dispute and the Assignment
Expert shall afford the Landlord and the Tenant an opportunity to comment in
writing to him upon the representations of the other. Whilst the Assignment
Expert may consider such representations and comments in arriving at his
decision he shall not in anyway be bound or fettered thereby and shall be
entitled to determine the issue in dispute on the basis of his own knowledge and
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judgment and in reaching such judgment he shall be entitled to seek the
professional opinion of independent third parties and to rely upon such opinions
as expressed to him
3.30.6. Once the Assignment Expert has been appointed the Landlord and the
Tenant shall each use all reasonable endeavours to see that the determination of
the issue in dispute is proceeded with as expeditiously as possible and the
Assignment Expert shall use all reasonable endeavours to give his decision as
speedily as possible but the Assignment Experts decision as to any matter
referred to him for determination shall as between the Landlord and the Tenant
be conclusive as to the matter in dispute
3.30.7. The fees of the Assignment Expert shall be paid by the Landlord and the
Tenant in such proportions as the Assignment Expert shall direct or failing any
such direction by the Landlord and the Tenant equally
3.30.8. If the Assignment Expert shall fail to reach a decision and shall give
notice thereof to the Landlord and the Tenant within thirty days after his
appointment or such longer period as the Landlord and the Tenant may from time
to time agree or if he shall relinquish his appointment or die or if it shall
become apparent that for any reason he will be unable to complete his duties
hereunder either the Landlord or the Tenant may apply to the President for a
substitute expert to be appointed in his place which procedure may be repeated
as many times as necessary
3.30.9. If the President shall for any reason not be available or be unable or
unwilling to make any appointment applied for pursuant to this clause at the
time of application therefor the appointment may be made by the Vice-President
or such other officer of the Royal Institution of Chartered Surveyors as is then
available and able and willing to make such appointment
3.30.10. Not otherwise than by assignment or underletting permitted under this
Clause 3.30 or as permitted by clause 3.30.12 hereof to part
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with or share possession or occupation of the whole or any part of the demised
premises or grant to third parties any rights over the demised premises
3.30.11. On an assignment to obtain a direct covenant by deed by the proposed
assignee:-
3.30.11.1 in favour of the Landlord to observe and perform the covenants of the
Tenant and the conditions in this Lease whilst the same is vested in the
assignee in such form as the Landlord may reasonably require and (if the
Landlord reasonably requires) guarantors reasonably acceptable to the Landlord
for the assignee to enter into a direct covenant by deed with the Landlord in
such form as the Landlord may reasonably require
3.30.11.2 in favour of the Superior Landlord in accordance with the provisions
of clause 3.30.5.1.2 of the Head Lease
3.30.12. Notwithstanding the provisions of Clause 3.30.10 the Tenant (being a
company) may share the occupation of the demised premises with any company which
is a member of the same group of companies (as defined in Section 42(l) of the
Landlord and Tenant Act 1954) as the Tenant Provided always that no demise or
other interest in the demised premises is thereby created or granted and the
Tenant does not thereby part with possession of the demised premises
3.30.13.1 In this sub-clause the expression "Permitted Undertenant" shall mean a
respectable and responsible person of good financial standing
3.30.13.2 Not to create any sub-lease of the whole or part of the demised
premises upon payment of a premium nor at a rent of less than the full market
rent obtainable without taking a fine or premium in respect of the premises to
be Underlet
3.30.13.3 Not to create any sub-lease of part of the demised premises save in
respect of a complete floor or complete floors of the demised premises so that
no floor of the demised premises shall be sub-divided in any way
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3.30.14.1 Not to create any sub-lease save by instrument in writing containing:-
(a) unqualified covenants on the part of the sub-tenant that the sub-tenant will
not assign mortgage or charge part only of the sub-let premises and will not
underlet or part with or share the possession or occupation of the whole or any
part thereof (in each case by way of absolute prohibition save as hereinafter
provided) and
(b) a covenant on the part of the sub-tenant that the sub-tenant will not (i)
assign the whole of the premises thereby demised without the prior written
consent of the Landlord under this Lease (such consent not to be unreasonably
withheld in the case of a respectable and responsible assignee of good financial
standing who has entered into a direct covenant with the Landlord to be bound by
and perform and observe the covenants and stipulations contained in the
sub-lease to be assigned to him) and will not mortgage or charge the said
premises without the prior written consent of the Landlord under this Lease
(such consent not to be unreasonably withheld) and (ii) assign the whole or
mortgage or charge the premises thereby demised without the prior written
consent of the Superior Landlord in accordance with the provisions of clause
3.30.5.1.3 (c) of the Head Lease
Provided that the Tenant may permit any Permitted Undertenant to share
occupation of any premises so sub-let to it in the like manner as provided in
sub-clause 3.30.12 (mutatis mutandis)
(c) similar agreements covenants and stipulations (mutatis mutandis) to those
contained in the Head Lease including provisions for rent reviews (at least as
often as those therein contained to the best yearly market rent obtainable
without taking a premium) as to the dates on which the rent reserved by the Head
Lease is to be reviewed
(d) a covenant by the undertenant for the payment of a service charge under
which the undertenant contributes a fair proportion of the
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cost of the provision of services by the Superior Landlord pursuant to the Head
Lease
3.30.15. Not to underlet the demised premises as a whole or in part to any
person who is not a Permitted Undertenant
3.30.16. Not without the prior written consent of the Landlord such consent not
to be unreasonably withheld or delayed to underlet the demised premises as a
whole or in part to a Permitted Undertenant
3.31. REGISTRATION OF DEALINGS
At the cost of the Tenant within fourteen days next after the execution of every
assurance assignment underletting mortgage or charge affecting the demised
premises to give notice thereof in writing with particulars thereof to the
Landlord and deliver to the Landlord a certified copy of the instrument
effecting the same and within fourteen days after the grant of Probate or
Letters of Administration in the case of a deceased tenant to produce the same
to the Landlord paying at the same time to the Landlord a registration fee of
twenty pounds for each such instrument or transaction
3.32. LANDLORD'S COSTS
To pay the proper and reasonable legal charges surveyors' or architect's fees
and any other costs and expenses incurred by the Landlord (including stamp duty
on licences and counterparts) resulting from all applications by the Tenant for
any consent or approval required by this Lease including those incurred in cases
where consent or approval is refused or the application is withdrawn
3.33. VALUE ADDED TAX
3.33.1. To pay Value Added Tax on all supplies received by the Tenant under or
in connection with this Lease.
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3.33.2. To pay to the Landlord an amount equivalent to any Value Added Tax on
supplies received by the Landlord under or in connection with this Lease to the
extent that the Landlord is unable to recover or obtain credit for the same.
3.33.3. All references in this Lease to amounts (including rent) payable by the
Tenant to the Landlord are references to such amounts exclusive of Value Added
Tax and the Tenant shall pay to the Landlord in addition to any such amount any
Value Added Tax payable on that amount.
3.34. REGULATIONS
To observe and perform and to ensure that the servants agents workmen and
visitors of the Tenant shall observe and perform any and all reasonable
regulations and instructions from time to time made or given to the Tenant in
writing by the Landlord in respect of the conduct and use of the Development and
in particular the conditions relating thereto set out in the Second Schedule
hereto
3.35. FIRE CONTROL
To keep any fire alarm and fire prevention and control apparatus installed in
the demised premises open to the inspection and maintained to the reasonable
satisfaction of the Landlord and not to obstruct the access to or means of
working such apparatus
3.36. DEDICATION
Not to make any objection to the dedication by the Superior Landlord of any part
of the common parts of the Development for public use and to consent to such
dedication if the consent of the Tenant is required
3.37. INTEREST
3.37.1. If and so often as any rent or other moneys due from the Tenant under
this Lease shall be unpaid for fourteen days after the due date the Tenant shall
pay (in the case of rent by way of additional rent) interest
26.
30
thereon (as well after as before any judgment) from the due date until payment
at a rate equivalent to 4% above the Base Rate for the time being declared by
Lloyds Bank PLC (or other clearing bank for the time being of the Landlord)
3.37.2. If the Landlord (as tenant pursuant to the Head Lease) becomes
liable to pay interest to the Superior Landlord pursuant to paragraph 8 of the
Fourth Schedule to the Head Lease then on the day that the Landlord is due to
pay such interest to the Superior Landlord the Tenant shall pay to the Landlord
an equivalent sum of money
3.38. OBLIGATIONS AFFECTING LANDLORD'S TITLE
To observe and perform:-
3.38.1. all obligations imposed on the Landlord in respect of the demised
premises arising from the matters specified in Part II of the First Schedule
3.38.2. all the covenants on the part of the Landlord and the conditions
contained in the Head Lease so far as they relate to the demised premises and
are not expressly assumed by the Landlord in this Lease or otherwise varied
herein
4. LANDLORD'S COVENANTS
THE Landlord HEREBY COVENANTS with the Tenant:-
4.1. QUIET ENJOYMENT
That the Tenant paying the rents and other moneys and performing and observing
the covenants agreements conditions and stipulations as herein provided may
peaceably and quietly hold and enjoy the demised premises for the Term without
any interruption from or by the Landlord or any person lawfully claiming through
under or in trust for it
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4.2. HEAD LEASE
4.2.1. To pay the rents reserved by the Head Lease and to perform so
far as the Tenant is not liable for such performance under the covenants on its
part contained in this Lease the lessee's covenants and conditions contained in
the Head Lease
4.2.2. At all times where necessary (and in any event upon the reasonable
request of the Tenant) and subject to the Tenant indemnifying the Landlord in
respect of all costs and disbursements thereby reasonably incurred to take such
action as is required to ensure the Superior Landlord's compliance with and to
use reasonable endeavours to enforce any breach of the Superior Landlord's
obligations under the Head Lease (and in particular, but without prejudice to
the generality of the foregoing, the obligations in respect of insurance and
services contained in clauses 4.2 and 4.3 of the Head Lease)
4.3. INSURANCE
4.3.1. Subject to the Landlord receiving the same from the Superior
Landlord in response to the Landlord's request to produce to the Tenant as soon
as practicable upon written request a copy of the Superior Landlord's insurance
policy and the last premium renewal receipt or reasonable evidence of the full
terms of such policy and of the fact that the last premium has been paid
4.3.2. If so required to use reasonable endeavours (and at the cost of the
Tenant) to procure that the interest of the Tenant and its mortgagees (if any)
is noted or endorsed upon the said policy
4.3.3. To notify the Tenant of any material change in the risks covered or
in the terms of the said policy from time to time as soon as practicable after
the Landlord becomes aware of the same
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5. GALILEO'S COVENANTS
THE Landlord (here meaning The Galileo Company only and not its successors in
title or assigns) hereby covenants with the Tenant:-
5.1. At the reasonable written request of the Tenant to use reasonable
endeavours (and subject to the Tenant fully indemnifying the Landlord in respect
of all costs expenses and disbursements and other liabilities it may thereby
reasonably incur and subject (if reasonably required by the Landlord) to the
Tenant from time to time providing full and sufficient security as may be
required in respect of the same) to enforce (in so far as there may be any
subsisting rights capable of enforcement pursuant to the same) the confirmations
given by St. Martins Property Investments Limited in its letter dated 2nd
December 1987 (a copy of which is attached and marked G6.2) and to request an
assignment of rights and interest in the circumstances mentioned in paragraph 3
thereof and thereafter itself to take such reasonable action as may be
reasonably appropriate against the building contractors and/or firms or
companies mentioned in the said letter at the Tenant's reasonable request AND
FURTHER should the Landlord assign its interest in the demised premises to first
procure that St Martins Property Investments Limited issues a letter of
confirmation in the same terms as the said letter either to the assignee of the
Landlord's interest or to the Tenant directly
5.2. At the reasonable written request of the Tenant to use reasonable
endeavours (and subject to the Tenant fully indemnifying the Landlord in respect
of all costs expenses and disbursements and other liabilities it may thereby
reasonably incur and subject (if reasonably required by the Landlord) to the
Tenant from time to time providing full and sufficient security as may be
required in respect of the same) to enforce (in so far as there may be any
subsisting rights capable of enforcement pursuant to the same) on the Tenant's
behalf the warranties contained in the following agreements:-
5.2.1. Warranty Agreement dated 2nd December 1987 made between (1)
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Partners and (2) Galileo Distribution Systems Limited
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33
5.2.2. Warranty Agreement dated 2nd December 1987 made between (1) ▇▇▇▇▇▇
▇▇▇▇▇ & Partners and (2) Galileo Distribution Systems Limited
5.2.3. Warranty Agreement dated 2nd December 1987 made between (1) The
Chinman Partnership and (2) Galileo Distribution Systems Limited
5.2.4. Warranty Agreement dated 2nd December 1987 made between (1) ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Architects Limited and (2) Galileo Distribution Systems
Limited
6. PROVISOS
PROVIDED ALWAYS AND IT IS HEREBY AGREED AND DECLARED THAT:
6.1. RE-ENTRY
Notwithstanding and without prejudice to any other remedy and power herein
contained or otherwise available to the Landlord if the rents or other moneys
hereby reserved or made payable or any part thereof respectively shall be unpaid
for fourteen days after becoming payable (whether formally or legally demanded
or not) or if any covenant agreement or obligation on the Tenant's part herein
contained shall not be performed or observed or if the Tenant shall permit any
execution or distress to be levied on any goods for the time being in the
demised premises or (being a company) shall enter into liquidation whether
compulsory or voluntary (not being merely a voluntary liquidation while solvent
for the purpose of amalgamation or reconstruction) or shall suffer a receiver or
an Administrator to be appointed by the Court pursuant to the Insolvency ▇▇▇
▇▇▇▇ or (being an individual) shall propose a voluntary arrangement under the
Insolvency ▇▇▇ ▇▇▇▇ (or any statutory modification or re-enactment thereof
from time to time in force) or shall suffer a Bankruptcy Order under the same
Act or petition the Court for his own bankruptcy then and in any such case it
shall be lawful for the Landlord at any time thereafter to re-enter upon the
demised premises or any part thereof in the name of the whole and thereupon this
demise shall absolutely determine but without prejudice to
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[LETTERHEAD - ST MARTINS PROPERTY INVESTMENTS LIMITED]
Galileo Distribution Systems Limited 2nd December 1987
▇▇ ▇▇▇ ▇▇
Speedbird House
Heathrow Airport (London)
Hounslow
Middlesex
Dear Sirs
OPTIMUS, WINDMILL HILL BUSINESS CENTRE, SWINDON
In consideration of the completion today of the Lease ("the lease") of the above
property it is hereby confirmed on behalf of this Company that:-
1. It will preserve safely any and all information and documentation
(including but without limitation Minutes of all relevant site or other
meetings concerning the same) and details of and relating to the terms of
engagement or appointment of:-
(a) the building contractors and,
(b) each of all of the firms or companies (including ▇▇▇▇▇▇▇ ▇▇▇▇▇ &
Partners, ▇▇▇▇▇▇ ▇▇▇▇▇ & Partners, the Chinman Partnership and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Partnership) concerned in any way with the
design or construction of the above property retained either by this
Company directly or by St Martins Property Corporation Limited on
behalf of this Company.
2. This Company will at the cost of your Company provide you with all such
information, documents, Minutes and details as aforesaid as shall be
required by you for the purpose of enforcing any claims that you may have
or seek to have against such building contractors and/or firms or
companies as aforesaid and that prior to destroying any of such
information, documentation Minutes and/or details as aforesaid this
Company will, if your Company so requires, hand over all of such to you
and
3. In the event of this Company assigning or disposing of its interest in the
above property and if requested by your Company this Company will assign
to you as beneficial owner (and/or will procure such assignment to you by
St Martins Property Corporation Limited) all rights and interests either
this Company or St Martins Property Corporation Limited may have against
such building contractors firms and/or companies subject to your Company
indemnifying us for all reasonable costs thereby incurred.
35
- 2 -
4. This Company will enforce the provisions relating to making good defects
within the defects liability periods in the building contract relating to
the above property and will take such reasonable action or proceedings as
may be reasonably appropriate against the building contractors and/or
firms or companies as aforesaid with a view to enforcing against such
building contractors and/or firms or companies as aforesaid their
obligations to make good any defects or other faults in the above
property.
Yours faithfully
/s/ [SIG]
------------------------
Secretary
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any right of action of the Landlord in respect of any then existing breach
non-observance or non-performance of the Tenant's covenants agreements or
obligations herein contained
6.2. CESSER OF RENT
If during the Term the demised premises or any part thereof or all means of
access thereto shall be destroyed or damaged by any of the risks against which
insurance is effected pursuant to the Head Lease so as to render the demised
premises or any part thereof unfit for occupation or use then (if the Tenant
shall have duly carried out the Tenant's obligations under sub-clauses 3.1 and
3.2 hereof and if no insurance of the demised premises or rents payable
hereunder shall have been vitiated or payment of the policy moneys refused in
whole or in part by some act or default of the Tenant his servants agents or
visitors) the rents hereby reserved or a fair and just proportion thereof
according to the nature and extent of the damage sustained shall be suspended
and cease to be payable as from the date of such destruction or damage until the
demised premises shall have been rebuilt or reinstated and made fit for
occupation and use and any dispute as to the extent proportion or period of such
suspension shall be determined by a single arbitrator to be appointed by the
Landlord and the Tenant and in case of difference by the President for the time
being of the Royal Institution of Chartered Surveyors in accordance with the
provisions of the Arbitration Acts 1950 to 1979 or any statutory modification
re-enactment or replacement thereof for the time being in force
6.3. BASE RATE
In the event of the Base Rate of Lloyds Bank PLC (or other bank for the time
being of the Landlord) being abolished and no alternative rate being presented
by law to replace the said Base Rate for the purpose inter alia of construing
existing leases then any reference to the said Base Rate shall have effect as if
there had been substituted from time to time for the Base Rate such rate of
interest which shall be most closely comparable with the said Base Rate such
rate of interest to be reasonably determined by the Landlord's Surveyor
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6.4. ARREARS
Any moneys due to the Landlord from the Tenant under any covenant condition or
provision contained in this Lease shall be due as a debt from the Tenant to the
Landlord payable on demand and in the event of non-payment such moneys shall be
recoverable by distress or otherwise in the same way as rent in arrear
6.5. SETTLEMENT OF DISPUTES
Any dispute arising as between the Tenant and the tenant or occupier of any
other property of the Superior Landlord as to any easement right or privilege in
connection with the use of the demised premises and such other property or as to
the amount of any contribution towards the expenses of works to services used in
common with such other property shall be decided by the Superior Landlord's
Surveyor for the time being whose decision shall be binding on all parties (save
on any question of law) and whose costs shall be paid by such of the parties to
the dispute in such proportions as he shall decide
6.6. EXCLUSION OF IMPLIED RIGHTS
Nothing herein contained shall by implication of law or otherwise operate to
confer on the Tenant any easement right or privilege whatsoever over or against
any adjoining or other property of the Landlord (whether in the Development or
not) either for an estate in fee simple or for a term of years
6.7. UNRESTRICTED USE OF ADJOINING PROPERTY
The Tenant shall not be entitled to the benefit of any restrictions which the
Landlord or the Superior Landlord may have imposed or may hereafter impose on
any owner or lessee of any property not comprised in the demised premises
(whether in the Development or not) and nothing herein contained or implied
shall impose or be deemed to impose any restrictions on the use of any such
property or give the Tenant the right to enforce
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or to have enforced or to prevent the release or modification of any covenant
agreement or condition entered into by any purchaser from or any lessee tenant
or occupier of the Landlord or the Superior Landlord in respect of such property
And that this demise shall not be deemed to include and shall not operate to
convey or demise any ways water mains sewers drains lights liberties privileges
easements rights or advantages whatsoever in through over or upon the property
of the Landlord or the Superior Landlord adjoining or near to the demised
premises save as may be expressly granted by this Lease
6.8. EXCLUSION OF LIABILITY
The Landlord shall not be liable to the Tenant for any loss damage or
inconvenience which may be caused by reason of the failure stoppage leakage
bursting or defect of any water sanitary gas electricity or other apparatus or
by reason of a breakdown or defect of any plant or machinery in the demised
premises outside the Landlord's immediate control
6.9. COMPENSATION
Subject to the provisions of sub-clause (2) of Section 38 of the Landlord and
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ neither the Tenant nor any assignee or underlessee shall be
entitled on quitting the demised premises or any part thereof to any
compensation under Section 37 of the said Act
6.10. PERPETUITY PERIOD
All rights granted and all reservations made in respect of sewers drains wires
cables pipes channels watercourses conduits subways or other conducting media
not in existence at the date hereof shall be limited to those which shall come
into existence within eighty years from the date hereof (which shall be deemed
to be the perpetuity period for the purposes of this Lease)
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6.11. NO PLANNING WARRANTY
Nothing in this Lease shall be deemed to constitute any warranty by the Landlord
that the demised premises or any part thereof are or will remain authorised for
use under the Planning Acts for any specific purpose
6.12. OPTION TO DETERMINE
If the Tenant shall wish to determine this Lease on the 30th day of June 2001 or
the 30th day of June 2006 (in either case "the Determination Date") and shall
give to the Landlord not less than twelve months' notice to that effect then
upon the Determination Date provided the Tenant shall have procured that the
demised premises shall then be fully vacant and not otherwise the Term shall
immediately cease and determine but without prejudice to the rights of the
Landlord and Tenant in respect of any antecedent claim or breach of covenant
Provided That the Tenant shall not serve a Determination Notice unless prior to
the date of such notice it shall in all material respects have substantially
complied with the terms and conditions and shall have substantially performed
and observed the covenants on its part herein contained and any Determination
Notice given by the Tenant shall be effective only if the Tenant shall continue
in all material respects to comply substantially with the terms and conditions
and substantially to perform and observe the covenants on the part of the Tenant
herein contained up to the Determination Date
6.13. FREEDOM TO USE THE DEMISED PREMISES
Despite any provision (express or implied) of this Lease to the contrary but
subject to paragraph 3.2 of the Second Schedule hereto the Tenant shall be
entitled to use and have access to the demised premises twenty-four hours a day
every day of the whole of the Term
6.14. HEAD LEASE
If at any time during the Term the Head Lease shall cease to exist (without
there being in reversion to this Lease a Superior Lease containing provisions
equivalent to the obligations and other provisions
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in the Head Lease relating to insurance and the service charge and party
structures as therein more fully set out) then this Lease shall thereafter be
read and construed and the parties obligated to each other (as appropriate) as
if it contained (mutatis mutandis) obligations respectively on the part of the
Landlord and the Tenant and provisions equivalent to those relating to insurance
and service charge and party structures as set out in the Head Lease as if the
same appeared herein and as if any reference to the Superior Landlord was a
reference to the Landlord
6.15. RELEASE OF COVENANTS
6.15.1. Upon a lawful assignment of the whole of the demised premises by the
Tenant in accordance with Clause 3.30 the Tenant shall thereafter be released
from any future obligation to observe or perform the covenants on the Tenant's
part contained in this Lease
6.15.2. Upon a lawful assignment of its reversionary interest in the whole
of the demised premises the Landlord shall thereafter be released from any
future obligation to observe or perform the covenants on the Landlord's part
contained in this Lease
6.16. REPRESENTATIONS
The Tenant acknowledges that this Lease has not been entered into in reliance
wholly or partly on any statement or representation made by or on behalf of the
Landlord except any such statement or representation that is expressly set out
in this Lease or in the written replies to enquiries given by the Landlord's
Solicitors to the Tenant's Solicitors prior to the date hereof
6.17. CERTIFICATE AS TO AGREEMENT FOR LEASE
It is hereby certified that there is no Agreement for Lease to which this Lease
gives effect
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7. INTERPRETATION
7.1. In this Lease where the context so admits:-
7.1.1. Words importing the masculine gender shall be deemed to include the
feminine and neuter genders
7.1.2. Where there are two or more persons included in the expression "the
Tenant" covenants expressed to be made by the Tenant shall be deemed to be made
by such persons jointly and severally
7.2. Reference in this Lease to any right exercisable by the Landlord or
any right exercisable by the Tenant shall be construed as including (where
appropriate) the exercise of such right in both cases in common with the
Landlord and all other persons having a like right or to whom such right may be
granted
7.3. Any negative covenant by the Tenant in this Lease shall be construed
as if it were also a covenant not to permit or suffer the act or thing in
question
7.4. The headings to clauses in this Lease shall not affect the
construction of such clauses
7.5. Whenever the consent or approval of the Landlord is required or
requested in relation to this Lease or any matter referred to herein, such
provision shall be construed as also requiring the consent or approval of the
Superior Landlord where the same shall be required except that nothing in this
Lease shall be construed as implying that any obligation is imposed upon the
Superior Landlord not unreasonably to refuse any consent or approval
7.6. Any reference in this Lease to the Landlord's excepting and
reserving a right or giving directions shall extend (where appropriate) to the
Superior Landlord and any reference to any right of the Landlord to enter or to
have access or to view the demised premises shall be
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construed as extending to the Superior Landlord for the time being and to all
persons authorised by the Landlord and the Superior Landlord
7.7. Any reference to a specific statute or Enactment or a provision of a
specific statute or Enactment includes all regulations and orders from time to
time made pursuant to that statute Enactment or (as the case may be) provision
or any statute Enactment or provision amending or replacing the same
7.8. Unless the context otherwise requires references to the Term shall
be deemed to be references to the term of years hereby demised and to any
extension or continuation thereof whether by the provisions of the Landlord and
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ or any similar Enactment from time to time in force or otherwise
IN WITNESS whereof the parties hereto have signed or sealed this Deed as
indicated below and it has been delivered on their behalf the day and year first
before written
THE FIRST SCHEDULE
PART I
THE DEMISED PREMISES
The whole of the land and premises more particularly described in and demised by
the Head Lease together with the appurtenances thereto including all Landlord's
plant and equipment fixtures and fittings now or hereafter in and about the same
and all additions (except tenants and trade fixtures) at any time hereafter made
to the same
PART II
MATTERS TO WHICH THE DEMISED PREMISES IS SUBJECT
The covenants restrictions stipulations rights liabilities and other matters
other than charges to secure money set out or referred to in the Property and
Charges Registers of H.M. Land Registry Title number WT73145
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THE SECOND SCHEDULE
EASEMENTS AND RIGHTS GRANTED
1. The right for all reasonable purposes connected with the demised
premises but not for any other purposes to pass and ▇▇▇▇▇▇ by foot only to and
from the demised premises over and along the walkways forming part of the common
parts of the Development as are from time to time constructed
2. The right for all reasonable purposes connected with the demised
premises but not for any other purposes to pass and ▇▇▇▇▇▇ with or without
vehicles over and along the roads forming part of the common parts of the
Development as are from time to time constructed Subject to compliance by the
Tenant with the following conditions
2.1 The Tenant shall not use the roads or permit the same to be used by
his servants agents or visitors for the parking of vehicles
2.2 The Tenant shall comply with such directions as may from time to
time be given by any competent authority or the Superior Landlord or any
representative of the Superior Landlord for the regulation and direction of
traffic
2.3 The Tenant shall co-operate with the Landlord and the Superior
Landlord so as to ensure that no rubbish or litter is left on the roads or any
part thereof and that no damage is caused by his servants agents or visitors
thereto and that no nuisance annoyance or inconvenience is caused to the
Landlord the Superior Landlord or to the owners or lessees or occupiers of the
Development
3. The rights granted by paragraphs 1 and 2 above are subject to
3.1 The right of the Superior Landlord in its absolute discretion to
close temporarily or permanently or alter from time to time the walkways and
roads and other common parts of the Development subject to
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the Superior Landlord leaving available for use by the Tenant reasonable means
of access to and serving the demised premises
3.2 The right of the Superior Landlord to limit and restrict (but not so
as to render them totally incapable of exercise) the rights outside Working
Hours in such manner as the Superior Landlord's security arrangements may
require
4. The free and uninterrupted passage and running of water soil gas
electricity telephone heating and other services from and to the demised
premises in and through the sewers drains wires cables pipes channels water
courses conduits subways or other conducting media now or at any time in the
future in or under other parts of the Development
5. The right of support and protection for the demised premises from
other parts of the Development
THE THIRD SCHEDULE
EXCEPTIONS AND RESERVATIONS
THERE ARE EXCEPTED AND RESERVED to the Landlord and its lessees and assigns and
all persons to whom the Landlord shall hereafter grant any such right or
rights:-
1. The right to enter upon the demised premises in circumstances
equivalent to those where the Tenant has covenanted in this Lease to permit
entry subject to the proviso in clause 3.9 of this Lease
2. The right to enter upon the demised premises to enable the Landlord
to perform its obligations hereunder subject to the proviso in clause 3.9 of
this Lease
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THE FOURTH SCHEDULE
PROVISIONS FOR RENT REVIEW
1. In this Schedule the following expressions shall have the
following meanings:
1.1 "review date" means the 25th day of March 1998 and every
subsequent fifth anniversary thereof
1.2 "rent" shall not include the rent secondly and thirdly reserved and
made Clause 2 of this Lease
1.3 "the quantified rent" means the yearly rent of eight hundred and
seventy-three thousand seven hundred and sixty-three pounds (L873,763.00)
1.4 "the relevant review date" means that review date at which the rent
is being agreed or determined pursuant to the provisions of this Schedule
1.5 "the open market rent" means the best yearly market rent
for which the demised premises might reasonably be expected to be let on the
relevant review date by a willing landlord to a willing tenant with vacant
possession without taking a premium:
1.5.1 For a term of 15 years and on the basis (whether or not it is a
fact) that the demised premises enjoy planning permission for the use authorised
under this Lease
1.5.2 Otherwise upon the terms and conditions of this Lease (save as to
the amount of rent but including the provisions for rent review herein
contained)
1.5.3 On the assumption (whether or not it is a fact) that at the
relevant review date the demised premises are fully equipped and ready
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for immediate occupation and use and that no work has been carried out thereon
by the Tenant or his predecessors in title or sub-tenants or other lawful
occupier during the Term which has diminished the rental value of the demised
premises and that in case the demised premises or the accesses thereto have been
destroyed or damaged they have been fully restored
1.5.4 On the assumption (whether or not it is a fact) that all the
covenants and obligations in this Lease on the part of the Tenant have been
complied with
1.5.5 On the assumption that the said willing tenant or tenants do not
seek a rent free period nor any reduction in rent to allow them the equivalent
of a rent free period and in considering any comparable rents the existence of
any rent free period or any reduction in rent calculated to allow for any rent
free period shall be ignored and any abnormally high rent agreed to compensate a
landlord for an artificially extended rent free period or any other inducements
shall be ignored
1.5.6 But disregarding:
1.5.6.1 Any goodwill attached to the demised premises by reason of the
carrying on thereon of the trade or business of the Tenant (whether by him or
any predecessor of the Tenant in that trade or business) or of and sub-tenant or
other lawful occupier
1.5.6.2 Any improvements carried out during the Term by the Tenant or his
predecessors in title or sub-tenants or other lawful occupier otherwise than in
pursuance of an obligation to the Landlord to the extent such obligation does
not fall within the Tenant's covenant contained in this Lease to comply with
Enactments or at the expense or partly at the expense of the Landlord
1.5.6.3 Any statutory limitation or control of rents for the time being in
force
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1.6 "revised rent" means the new or increased yearly rent payable
in substitution for the quantified rent or for a previous revised rent
1.7 "the current rent" means the yearly rent payable in the year ending
on the relevant review date
1.8 "the Surveyor" means the independent surveyor required
to be appointed pursuant to paragraph 3 of this Schedule
2. From and after each review date the rent shall be the rent agreed in
writing between the Landlord and the Tenant or in the absence of such agreement
shall be whichever is the higher of:
2.1 The current rent and
2.2 The open market rent
3. If the Landlord and the Tenant shall not have agreed in writing the
open market rent by the relevant review date the Landlord or the Tenant may at
any time thereafter (but before the review date next following the relevant
review date) require in writing to the other of them an independent surveyor to
be appointed to determine the open market rent
4. The Surveyor (who shall be a Fellow of the Royal Institution of
Chartered Surveyors and be experienced in the valuation of premises of a like
nature to the demised premises) may be agreed upon by the Landlord and the
Tenant and in default of such agreement within two months of a requirement being
made pursuant to paragraph 3 of this Schedule shall be appointed by the
President for the time being of the Royal Institution of Chartered Surveyors on
the application of the Landlord or the Tenant made at any time after the said
period of two months and if the said President shall for any reason not be
available or be unable to make such appointment then the appointment may be made
by the Vice President or next available senior officer of the said Institution
then available
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5.1 Notice in writing of his appointment shall be given by the Surveyor
to the Landlord and the Tenant and he shall invite each to submit within a
specified period (which shall not exceed four weeks) a valuation accompanied if
the Landlord or the Tenant so desire by a statement of reasons
5.2 The Surveyor shall act as an expert and not as an arbitrator he
shall consider any valuation and reasons submitted to him within the said period
but shall not be in any way limited or fettered thereby and shall determine the
open market rent in accordance with his own judgment
5.3 The Surveyor shall give notice in writing of his decision to the
Landlord and the Tenant within two months of his appointment or within such
extended period as the Landlord may at any time allow
5.4 The decision of the Surveyor shall be final on all matters
referred to him
6. If the Surveyor shall fail to determine the open market rent and to
give notice thereof within the time and in manner hereinbefore provided or if he
shall relinquish his appointment or die or otherwise fail or be unable to
determine the same the Landlord may apply to the President or such other officer
of the Royal Institution of Chartered Surveyors as aforesaid for a substitute to
be appointed in his place which procedure may be repeated as many times as
necessary
7. The fees of any such Surveyor and the Royal Institution of
Chartered Surveyors shall be shared equally between the Landlord and the Tenant
8. In the event that by the relevant review date the Landlord and
the Tenant shall not have agreed in writing the rent to be payable from and
after such date or the Surveyor (if appointed) shall not have given the notice
provided for in paragraph 5.3 of this Schedule then the Tenant shall continue to
pay rent at the rate of the current rent until the quarter day immediately
following the reaching of such agreement or the giving of the said notice
whichever shall first occur If such agreement
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or the giving of the said notice shall result in a revised rent there shall be
added to and be payable with the installment of the revised rent due on such
quarter day (notwithstanding that the provisions of paragraph 9 of this Schedule
remain to be complied with) the amount representing the difference between the
current rent and the revised rent from the relevant review date until such
quarter day together with interest on such amount at a rate equivalent to the
Base Rate of Lloyds Bank PLC (or such other London Clearing Bank for the time
being of the Landlord) from time to time from the relevant review date until
payment If such agreement or the giving of the said notice shall not have
resulted in a revised rent the current rent shall continue to be payable
9. Immediately after the open market rent shall have been agreed or
determined as aforesaid a memorandum of the revised rent (if any) in such form
as the Landlord may reasonably require shall be signed recording the amount of
the revised rent on behalf of the Landlord and the Tenant and the costs and
expenses thereof shall be paid by the Tenant
10. A revised rent shall be payable on the days and in the manner
for payment of the quantified rent and the terms of this Lease relating to the
reservation payment or suspension of rent and the consequences of non-payment
shall apply to a revised rent in the same manner as to the quantified rent
11. If at any time or times there shall be in force any Enactment which
shall restrict or in any way affect the Landlord's right to have the rent
reviewed as hereinbefore provided or which shall restrict or in any way affect
the Landlord's right to payment of a revised rent the Landlord shall be entitled
following the repeal termination or modification of such Enactment (but in the
event of a modification of such Enactment only to the extent permitted by such
modification) to serve notice upon the Tenant requiring the Tenant to pay to the
Landlord as from the first quarter day ("the interim review date") occurring not
less than twenty-eight days after the date of service of the Landlord's notice
until such rent shall next be varied in accordance with the provisions of this
Schedule the rent stated in the Landlord's notice and such rent shall become
payable accordingly unless the Tenant shall have
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