Exhibit 10.54
Lease
DATED 18th April, 1996
(1) THE STANDARD LIFE ASSURANCE COMPANY
(2) CITY MORTGAGE SERVICING LIMITED
(3) CITY MORTGAGE CORPORATION LIMITED
AGREEMENT FOR LEASE
of Malvern House
Croxley Business Park
Herbert Smith
Exchange House
Primrose Street
London EC2A 2HS
Tel: 0171-374 8000
Fax: 0171-496 0043
Ref: 65/30580257
11th April 1996
TABLE OF CONTENTS
CLAUSE HEADING PAGE
1. DEFINITIONS .......................................... 1
2. INTERPRETATION ....................................... 3
3. LANDLORD'S OBLIGATION ................................ 3
4. ACCESS FOR THE CATEGORY B WORKS ...................... 3
5. CATEGORY B WORKS ..................................... 5
6. ALLOWANCE FOR THE CATEGORY C WORKS ................... 8
7. CAPITAL ALLOWANCES ................................... 10
8. CERTIFICATES ......................................... 10
9. INSURANCE ............................................ 11
10. OCCUPATION PENDING GRANT OF LEASE .................... 12
11. GRANT OF LEASE ....................................... 12
12. EXISTING LEASES ...................................... 14
13. TITLE ................................................ 14
14. ALIENATION ........................................... 15
15. MISCELLANEOUS ........................................ 15
16. NOTICES .............................................. 15
17. TERMINATION .......................................... 16
18. GUARANTEE OF PERFORMANCE OF TENANT'S
OBLIGATIONS .......................................... 16
19. CONFIDENTIALITY ...................................... 19
Annexures: ........................................................... 20
"A"- Lease
"B"- Deed of Deposit
"C"- Specification
"D"- Deed of Warranty (Tenant's Contractor)
"E"- Deed of Warranty (Specialist sub-contractor Specialist
M&E Consultant)
"F"- Deed of Warranty (Tenant's Consultant)
AGREEMENT dated the 18th day of April, 1996
BETWEEN:
(1) THE STANDARD LIFE ASSURANCE COMPANY of 3 George Street Edinburgh EH2
2XZ
(2) CITY MORTGAGE SERVICING LIMITED whose registered office is at 19
Cavendish Square London W1A 2AW
(3) CITY MORTGAGE CORPORATION LIMITED whose registered office is at 19
Cavendish Square London W1A 2AW
WHEREBY IT IS AGREED as follows:-
1. DEFINITIONS
In this Agreement unless the context otherwise requires the following
expressions shall have the following meanings respectively:-
"Building" means the building known as Malvern House Croxley Business
Park shown for the purpose of identification edged red on Plan No. 1A
Plan No. 1B and Plan No. 1C and also edged yellow on Plan No. 2
"CDM Regulations" means the Construction (Design and Management)
Regulations 1994 or any remaking thereof and any amendment to a
regulation therein and any approved code of practice issued in relation
thereto
"Category A Works" means the works as described in the Specification
"Category B Works" means the works to be undertaken by the Tenant in
accordance with this Agreement for the purposes of fitting out the
Building (which shall include the Category A Works as omitted varied or
added to in accordance with clause 5.5)
"Category C Works" means that part of the Category B Works which
comprises Category A Works as omitted varied or added to in accordance
with Clause 5.5
"Certificate of Completion of the Category B Works" means the
certificate to be issued by the Tenant's Consultant signifying the
practical completion of the Category B Works
"Code" means the Code of Measuring Practice prepared by the Royal
Institution of Chartered Surveyors and Incorporated Society of Valuers
and Auctioneers (Third Edition) dated January 1990 or any subsequent
edition from time to time prepared by the said Institution
"Commissioning Engineer" means Dome Limited of Hat and Mitre Court
London EC1M 4EH or such other firm or company as may be appointed by
the Landlord and agreed by the Tenant such agreement not to be
unreasonably withheld or delayed
"Completion Date" means the fifteenth Working Day after the Target Date
(or earlier as may be agreed the parties)
"Deed of Deposit" means the Deed of Deposit in the form of the draft at
annexure B
1
"Defect" means any defect in the Building (but excluding the Category B
Works and except(1) all plant and machinery) which is attributable to
faulty design or faulty workmanship or faulty materials or faulty
supervision of the construction of the Building (excluding as
aforesaid) in the context of good standards of design workmanship
materials or supervision at the time the relevant work was carried out
but excluding any defect which might reasonably be expected to have
been discernible by a competent professional person from a visual
inspection of the Building (whether or not undertaken in fact)
immediately before the date hereof or from any plans or other documents
copies of which were supplied by the Landlord to the Tenant before the
date hereof or which was otherwise within the actual or constructive
knowledge of the Tenant
"Existing Leases" means (i) a Lease dated 2nd August 1995 made between
the Landlord (1) the Tenant (2) and the Guarantor (3) of premises known
as part first floor Wing B Sherbourne House Croxley Business Park and
(ii) a Lease dated 22nd November 1995 made between the same parties of
premises known as part first floor Wing A Sherbourne House Croxley
Business Park
"Guarantor" means the party or parties (if any) of the third part
hereto and (if more than one) the expression shall be construed in the
plural and all obligations undertaken by such parties under this
Agreement are undertaken by them jointly and severally
"Landlord" means the party of the first part hereto
"Landlord's M and E Consultants" means Blyth & Blyth Associates of The
Blyth Building Redheughs Rigg Edinburgh EH12 9HL
"Landlord's Solicitors" means Herbert Smith of Exchange House Primrose
Street London EC2A 2HS (Ref. 65)
"Landlord's Building Surveyor" means Powell Williams Partnership of 9
White Friars Chester CH1 1NZ or such other firm or company as may be
notified in writing by the Landlord to the Tenant
"Landlord's Measurement Surveyor" means Stimpsons of 30 The Avenue
Watford or such other firm or company as may be notified in writing by
the Landlord to the Tenant
"Lease" means the Lease to be granted by the Landlord to the Tenant in
accordance with the provisions of this Agreement in the form of the
draft at annexure A
"Net Internal Area" means in relation to the Building the whole of the
areas shown edged red on Plan No. 1A Plan No. 1B and Plan No. 1C
measured in accordance with the Code but (notwithstanding the
provisions of the Code) including areas below atrium voids save that in
case of a conflict between the definition of (i) Net Internal Area and
(ii) any definition in the Code the former shall prevail
"Permitted Access Date" means the date hereof
"Specification" means the specification at annexure C
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(1) The purposes of clause 5.13.4
2
"Target Date" means 3rd September 1996
"Tenant" means the party of the second part hereto
"Tenant's Consultant" means Altonwood Project Services Limited of 2
Hobbs House Harrovian Business Village Bessborough Road Harrow HA1 3EX
"Tenant's Contractor" means Morgan Lovell West Limited of Ascot Road
Doncastle Bracknell Berks RG12 8CE
"Tenant's Solicitors" means Howard Kennedy of 19 Cavendish Square
London W1A 2AW (Ref. 33.SRP.940823)
"Working Day" means any day other than Saturdays Sundays and bank and
other public holidays
2. INTERPRETATION
2.1 Terms defined in the Lease shall have the corresponding meanings when
used herein
2.2 Clause headings and indices are for convenience only and shall not
affect the construction of this Agreement
2.3 In this Agreement references to clauses and schedules are to clauses
and schedules of this Agreement
2.4 If any party comprises two or more persons their obligations and
liabilities are joint and several
2.5 Reference to a party agreeing not to do or omit any act or thing shall
include references to that party not permitting or suffering it to be
done or omitted
3. LANDLORD'S OBLIGATION
3.1 The Landlord shall make good to the reasonable satisfaction of the
Tenant any Defect which becomes manifest by the first Review Date
3.2 The Landlord shall pay to the Tenant on the Completion Date the sum of
Pound Sterling 20,000 (exclusive of VAT) as consideration for the
Tenant accepting full responsibility under the terms of the Lease (to
the exclusion of the Landlord) for the repair and maintenance of all
plant and machinery not comprised in the Category B Works
4. ACCESS FOR THE CATEGORY B WORKS
4.1 Following the Permitted Access Date the Landlord shall grant to the
Tenant its contractors agents advisers workmen and all others
authorised by the Tenant and engaged in the execution of the Category B
Works access at all times by way of licence to the Building and where
appropriate the Block for the purpose only of commencement and
execution of the Category B Works and the Tenant its contractors agents
advisers workmen and all others so authorised and engaged shall comply
with all reasonable restrictions and regulations in relation to such
access imposed by the Landlord or which may be imposed by any competent
authority or the insurers and have been notified to the Tenant
3
4.2 The Tenant shall submit to the Landlord for and obtain the Landlord's
approval (such approval not to be unreasonably withheld or delayed) of
a programme and method statement in writing (which programme and method
statement may from time to time with the like approval be amended
revised or updated with the approval of the Landlord such approval not
to be unreasonably withheld or delayed) containing the following
information:-
4.2.1 details of the proposed order and timing of the Category B
Works and by whom they are proposed to be carried out
4.2.2 proposals for regular liaison co-ordination and co-operation
between the Landlord's Building Surveyor and the Tenant's
Consultant and contractors for the Category B Works including
the name of the individual who will have daily responsibility
therefor on behalf of the Tenant
4.2.3 proposals for the means of access to the Building
4.2.4 proposals for the method by which on a daily basis surplus
materials and refuse and rubbish of the Tenant its contractors
servants and agents are to be removed from the Building and
the Estate
4.3 In carrying out the Category B Works the Tenant its contractors agents
advisers and workmen (as the Tenant shall procure) shall at all times:-
4.3.1 comply in all respects with the reasonable requirements and
procedures of the Landlord in respect of industrial relations
and hours of working details of which must be agreed prior to
the commencement of the Category B Works
4.3.2 comply with the programme and method statement (as amended
updated and revised from time to time)
4.3.3 not obstruct any escape route serving the Building and use
their reasonable endeavours to procure that all vehicles
visiting the Building in connection with the Category B Works
go directly to the unloading points (if any) reasonably
designated to the Tenant for such purpose from time to time by
the Landlord and leave the Building as soon as reasonably
practicable after unloading has been completed
4.3.4 comply in all respects with the reasonable requirements and
procedures (if any) of the Landlord notified in writing to the
Tenant in respect of the delivery of materials for use in
connection with the Category B Works including the days and
hours on and within which deliveries may be made
4.3.5 comply in all respects with the reasonable safety and floor
loading requirements (if any) of the Landlord notified in
writing to the Tenant in respect of the storage of materials
in connection with the Category B Works
4.3.6 comply in all respects with the reasonable requirements (if
any) of the Landlord notified in writing to the Tenant in
respect of the security and protection of the Building and
make arrangements reasonably satisfactory to the Landlord for
the security and protection of the Category B Works and the
materials being used in relation thereto
4
4.3.7 not damage or cause or permit any other persons to damage the
Building or the Block and in particular (but without
limitation thereto) not interfere or permit such persons to
interfere with or do or permit to be done by any such persons
any act or thing which may adversely affect any installation
forming part thereof and shall not make or permit to be made
by any such persons any connections with or to any such
installation without the prior approval of the Landlord such
approval not to be unreasonably withheld or delayed
4.3.8 comply in all respects with legislation in respect of safety
health and welfare and the reasonable safety requirements of
the Landlord
4.4
4.4.1 The Tenant shall take such steps as the Landlord shall
reasonably require to make good forthwith at the Tenant's cost
any damage or injury to the Building or the Block caused by
the Tenant or any company or firm for whom the Tenant is
directly responsible but if the Tenant fails to make good any
such damage or injury within a reasonable period the Landlord
may do so at the Tenant's cost
4.4.2 (Without prejudice to any other right or remedy the Landlord
may have) the Tenant shall pay or reimburse to the Landlord
the cost of making good any such damage or injury mentioned in
Clause 4.4.1 on demand (and if unpaid within 10 Working Days
of demand the Tenant shall pay Interest thereon from the date
of demand until the date of actual payment in cleared funds)
5. CATEGORY B WORKS
5.1 Having first complied with the provisions of clause 4.2 and having
obtained all requisite approvals and consents and subject to the
provisions of this clause 5 the Tenant shall commence and diligently
proceed to carry out and complete the Category B Works
5.2 As soon as reasonably practicable after the date hereof and in any
event prior to the commencement of each relevant part of the Category B
Works the Tenant shall cause to be prepared and delivered to the
Landlord copies of detailed plans drawings and specifications of each
relevant part of the Category B Works with additional copies to the
Landlords M and E Consultant (where the subject matter relates to plant
and machinery) and to the Landlord's Building Consultant
5.3 The Landlord shall be deemed to have approved such detailed plans
drawings and specifications unless the Landlord or the Landlord's M and
E Consultant or the Landlord's Building Surveyor has notified the
Tenant of any objection thereto within 2 Working Days of delivery
thereof in accordance with Clause 5.2
5.4 The Tenant shall not commence any works relating to plant and machinery
or to the proposed spiral staircase prior to such approval or deemed
approval of detailed plans drawings and specifications
5.5 In formulating its proposals for the Category B Works the Tenant may
with the consent of the Landlord omit vary or add to such item or items
of the Category A Works as it may require and the Landlord shall not
unreasonably withhold or delay its
5
consent to any such omission variation or addition which the Tenant
undertakes to replace with an alternative item of substantially
comparable quality and effect and which would not in the reasonable
opinion of the Landlord result in a lower standard of finish than is
described in the Specification or would not materially prejudice the
effective working of the Building or its value as an investment
5.6 For the purpose of carrying out the Category B Works the Tenant shall
enter into contracts (the form of which shall have first been approved
by the Landlord (such approval (not to be unreasonably withheld or
delayed) with such trade contractors professional advisers or other
persons first approved by the Landlord (such approval not to be
unreasonably withheld or delayed) as the Tenant may require for the
execution of the Category B Works and in particular (but without
prejudice to the generality of the foregoing) the Tenant shall procure
that as soon as practicable after the date hereof the Tenant's
Contractor executor and delivers to the Landlord a Deed substantially
in the form at annexure D together with duly executed Deeds from any
specialist M&E subcontractor and design consultant substantially in the
form at annexure E and that the Tenant's Consultant executes and
delivers to the Landlord a Deed substantially in the form at annexure F
5.7 The Tenant shall carry out or cause to be carried out the Category B
Works
5.7.1 in a good and workmanlike manner
5.7.2 using good quality materials of their several kinds
5.7.3 in accordance with
(A) all relevant permissions and licences of the town
planning local and other competent authorities
necessary for the execution thereof and to the extent
that such permissions and licences have not yet been
obtained the Tenant will with all due speed apply for
such permissions and licences and diligently pursue
such applications; and
(B) all Acts of Parliament now or hereafter passed
(including any instrument order or regulation or
other subordinate legislation deriving validity from
any Act) which shall affect the execution thereof
5.7.4 in accordance with the terms of this Agreement and
5.7.5 to the reasonable satisfaction of the Landlord
5.8 Without prejudice to the provisions of clause 5.5 the Tenant may make
minor variations amendments and additions to those of the Category B
Works which do not comprise Category C Works where the same:
5.8.1 are mutually agreed upon in writing (the Landlord's agreement
not to be unreasonably withheld or delayed) or
5.8.2 are rendered necessary or desirable by reason of the direction
of any competent authority or
5.8.3 arise out of unavailability or short or uncertain supplies of
materials where materials of substantially equivalent quality
are substituted
6
PROVIDED THAT in relation to any such variation amendments and
additions the Tenant shall supply to the Landlord full particulars
thereof together with if so requested not more than three copies of any
relevant drawings specifications and details of materials
5.9.1 The Tenant shall subject to compliance by the Landlord with
its obligations contained in clause 5.9.2
(A) comply with the obligations imposed on the client by
the CDM Regulations and procure compliance by any
designer or contractor employed by the Tenant in
connection with the Category B Works under the CDM
Regulations
(B) procure that whoever the Tenant appoints to act as
the planning supervisor and the principal contractor
and any person appointed in relation to the Category
B Works as designer or contractor shall in every case
have the necessary competence and adequate resources
to comply with their respective obligations under the
CDM Regulations
(C) notwithstanding the generality of clause 5.9.1.
procure that the Landlord is supplied with the
relevant information in relation to the Category B
Works in order to ensure that the health and safety
plan and health and safety file can be updated in
compliance with the CDM Regulations
(D) indemnify the Landlord from any cost claim action or
proceedings instituted by any third party in relation
to any breach of the CDM Regulations by the Tenant or
any contractor in relation to the Category B Works
5.9.2 The Landlord shall supply the Tenant with all relevant
information concerning the Building to enable the Tenant to
comply with its obligations contained in clause 5.9.1
5.10 The Tenant by way of indemnity only hereby covenants with the Landlord
that in the carrying out of the Category B Works it shall at all times
take all reasonable measures to prevent (but having due regard to the
nature and extent of the Category B Works) any nuisance on the Estate
and/or anything which may cause annoyance inconvenience or disturbance
to the Landlord or to the owners or occupiers of any land or buildings
adjoining or neighbouring the Building
5.11 The Tenant shall in respect of the Category B Works and without
prejudice to any other obligation on its part herein keep the Landlord
fully and effectually indemnified against
5.11.1 any breach of the conditions or requirements imposed by or
pursuant to the terms of this Agreement and
5.11.2 all claims actions damages demands losses expenses costs and
other liabilities whatsoever suffered by the Landlord which
arise out of the carrying out of the Category B Works
7
5.12 The Landlord the Landlord's Building Surveyor and the Landlord's M and
E Consultant shall be entitled at reasonable times to enter upon the
Building in order to inspect the Category B Works provided that neither
the Landlord nor its contractors agents advisers workmen and others
shall give or purport to give any instructions to any person engaged in
and about the Category B Works and any comment which the Landlord or
its representatives may wish to make in relation thereto shall be
directed only to the Tenant's Consultant
5.13
5.13.1 The Landlord and the Tenant shall jointly commission on terms
agreed between them the Commissioning Engineer to test and
performance prove in accordance with the specifications
relating thereto all plant and machinery the supply or fixing
of which is included in the Building as at the date hereof and
to test and commission all plant and machinery the supply or
fixing of which is included in the Category B Works
respectively both separately and as a combined system with
such of the said plant and machinery as was installed by the
other of the Landlord or the Tenant as the case may be and the
fees of the Commissioning Engineer (together with any VAT
thereon) incurred in testing performance proving and
commissioning following completion of the Category B Works
shall be borne equally between the Landlord and the Tenant
(but for the avoidance of doubt it is hereby agreed that the
Landlord shall pay such fees and the Tenant will indemnify the
Landlord against one half of such fees and any VAT thereon)
5.13.2 Such testing performance proving and commissioning (as the
case may be) shall be carried out both prior to commencement
of those parts of the Category B Works as relate to plant and
machinery (for which purposes the Tenant shall allow such
access as is reasonably necessary and the parties shall use
reasonable endeavours to ensure that such is carried out
within ten Working Days of the date hereof) and following
completion of the Category B Works
5.13.3 The Commissioning Engineer shall be instructed to issue copies
of the certificates issued on both such occasions under both
contracts of engagement to both the Landlord and the Tenant
5.13.4 If as a result of such testing performance proving and
commissioning carried out prior to the commencement of those
parts of the Category B Works as relate to plant and machinery
the Commissioning Engineer considers that there is any Defect
in the plant and machinery the Landlord shall as soon as
reasonably practicable and co-ordinating at all times with the
Tenant's method statement make good such Defect in a way that
is compatible with the Category B Works to the reasonable
satisfaction of the Tenant.
6. ALLOWANCE FOR THE CATEGORY C WORKS
6.1 Subject to the remaining provisions of this clause 6 the Landlord shall
pay to the Tenant the sum of Pound Sterling 1.93 million together with
Value Added Tax thereon as a contribution towards the Category C Works
8
6.2 The Tenant shall within 10 Working Days after the date of this
Agreement apply for a certificate from the Board of Inland Revenue that
the Tenant is excepted from the provisions of section 559(1) Income and
Corporation Taxes Act 1988 and use all reasonable endeavours to procure
the same and shall deliver a certified copy of the same to the
Landlord's Solicitors as soon as practicable after its issue
6.3 The Tenant shall ensure that the Tenant's Consultant prepares separate
monthly valuation certificates showing the value exclusive of VAT of
those elements of the Category C Works which have been carried out
during the period to which the certificate relates and subject to such
separate valuation certificates being agreed by the Landlord's Building
Surveyor such agreement not to be unreasonably withheld or delayed and
subject to application for payment being received by the Landlord not
less than 10 Working Days prior to the due date for payment to the
contractors professional advisers or other persons employed by the
Tenant in connection with the Category B Works (which date shall be
specified in the applications) the Landlord will on or before such date
pay or reimburse to the Tenant the amount properly payable according to
such valuation certificates but in any event not exceeding Pound
Sterling 1.93 million together with (against delivery of a valid VAT
invoice addressed to the Landlord) Value Added Tax thereon in the
aggregate
6.4 Save as aforesaid the Landlord shall not have any obligation to the
Tenant to carry out or contribute to or meet the costs of the Category
C Works or any part or parts thereof
6.5 If the Tenant shall fail to carry out and complete the Category C Works
within three months after the Target Date the Landlord may with all
necessary workmen contractors and others enter upon the Premises and
carry out and complete the Category C Works and in doing so the
Landlord shall expend for the purpose any balance unpaid of the said
sum of Pound Sterling 1.93 million and if the costs of carrying out and
completing the Category C Works shall exceed such unpaid balance an
amount equal to the excess shall be paid by the Tenant to the Landlord
(as the case may be) on demand and until paid shall carry Interest as
well after as before judgment
6.6
6.6.1 In the event of any dispute as to the amount of any sums
payable under this clause 6 such dispute shall be determined
by a chartered quantity surveyor experienced in the
construction of property comparable with the Building who
shall act as an expert and who shall be appointed in default
of agreement between the Landlord and the Tenant on the
application of either of them by the President for the time
being of the Royal Institution of Chartered Surveyors
6.6.2 If such expert shall die delay or become unwilling or
incapable of acting or if for any other reason the said
President or the person acting on his behalf shall in his
absolute discretion think fit the said President or person
acting on his behalf as aforesaid may by writing discharge the
surveyor and appoint another in his place
6.6.3 The surveyor's fees shall be borne as the expert may direct
and his decision shall be final and binding save in case of
manifest error
9
6.7 The Landlord shall pay to the Tenant Interest on any payment due from
the Landlord pursuant to this clause 6 during the period commencing 10
Working Days from the date of receipt by the Landlord of the relevant
certificate prepared pursuant to clause 6.3 to the date of actual
payment by the Landlord
7. CAPITAL ALLOWANCES
7.1 The Tenant shall as soon as is practicable after the issue of the
Certificate of Completion of the Category B Works prepare (or procure
the preparation) of a statement ("the Statement") which shall be
produced to the Landlord
7.2 The Statement shall:
(A) specify the total expenditure on the Category C Works;
(B) identify each item of plant and machinery comprised in the
Category C Works in respect of which a claim to capital
allowances could be made together with the expenditure
incurred in relation to that item including (where
appropriate) attributable professional costs fees and
disbursements
7.3 The Tenant shall not in any circumstances make a claim for capital
allowances in respect of any element of the Category C Works
7.4 The Landlord shall not in any circumstances make a claim for capital
allowances in respect of any element of the Category B Works which does
not comprise Category C Works
8. CERTIFICATES
8.1 The Tenant shall procure that the Landlord's Building Surveyor shall be
given not less than 5 Working Days' notice of the intention for the
first time of the Tenant's Consultant to inspect the Category B Works
with a view to the issue of the Certificate of Completion of the
Category B Works (and thereafter not less than 24 hours' notice of each
occasion on which he intends to so inspect the Category B Works) and
that the Landlord's Building Surveyor and the Landlord's M and E
Consultant will be given the opportunity to accompany the Tenant's
Consultant on the final inspection prior to the issue of such
certificate in order that they may (but shall not be bound to) make
whatever representations they think fit to the Tenant's Consultant as
to whether or not the Category B Works have been practically completed
and the Tenant shall procure that the Tenant's Consultant will pay due
regard to any such representations made before issuing the Certificate
of Completion of the Category B Works and shall forthwith supply to the
Landlord a copy of such certificate when issued
8.2 As soon as reasonably possible following practical completion of the
Category B Works the Tenant shall (unless previously delivered) deliver
to the Landlord a full set of "as built" plans relating to the Category
B Works together with copies of all operational manuals and
commissioning reports (if any) relating to the Building and the plant
and equipment therein or serving the same
10
9. INSURANCE
9.1 From the date hereof until the grant of the Lease the Landlord shall
insure or procure the insurance of the Building in its full
reinstatement cost for the time being against the risks usually covered
by a contractor's "all risks" type policy (including but without
prejudice to the generality thereof the Insured Risks but excluding
trade fixtures and fittings installed in the Premises which would not
fall to be insured by the Landlord under the Lease if the Lease had
been granted)
9.2 The Tenant will notify to the Landlord the date on which it intends to
commence the Category B Works ("the Commencement Date")
9.3 (Subject to clause 9.6) from the Commencement Date until the grant of
the Lease the Landlord will insure or procure the insurance of the
Category B Works (including materials delivered but unfixed) against
all risks usually covered by a contractor's "all risk" type policy
(including but without prejudice to the generality thereof the Insured
Risks)
9.4 The Tenant shall pay or reimburse to the Landlord on demand the cost of
insuring in accordance with the provisions of clause 9.1 and 9.3
9.5 If so requested by the Tenant the Landlord will produce to the Tenant
from time to time the policy of insurance or a certified copy of the
relevant provisions thereof and the current premium receipt or other
satisfactory evidence of payment and the Landlord will notify the
Tenant in writing of any material change in the conditions of such
insurance and shall ensure that the interest of the Tenant is noted on
the policy either specifically or by way of an "other interests" clause
9.6 The Tenant shall at intervals not less frequently than quarterly notify
the Landlord of the reinstatement value of each and every part of the
Category B Works then completed or expected to be completed during the
relevant quarterly period and the Landlord shall be entitled to rely on
such notification of value (and the identification made) in effecting
the insurance pursuant to this clause and shall not be liable to the
Tenant for any breach of its obligations under this clause where such
breach arises by reason of the Tenant's failure to notify or make the
relevant identification in accordance with this sub-clause 9.6 nor
shall the Landlord be obliged to insure any part of the Category B
Works unless it shall have been notified of the initial reinstatement
value of the relevant part of the Category B Works
9.7 In case of damage or destruction caused by any of the risks covered by
the contractor's "all risks" type policy as aforesaid:-
9.7.1 to the Building and the Category C Works the Landlord will
with all convenient speed expend all monies received by it
under any such insurance as aforesaid in or towards
reinstating such damage or destruction so far as practicable
(making up any deficiency out of the Landlord's own
resources); and
9.7.2 to any of the Category B Works which do not comprise Category
C Works the Landlord shall pay to the Tenant the amount of the
insurance proceeds received by the Landlord pursuant to any
policy effected by the Landlord
11
pursuant to the provisions of this clause attributable to the
damage or destruction of such works and the Tenant will with
all convenient speed expend such amount in or towards
reinstating such damage or destruction so far as practicable
and the Landlord shall make up any deficiency out of the
Landlord's own resources unless such deficiency is due to the
Tenant's failure to notify or to make the relevant
identification or to make the correct valuation in accordance
with the provisions of clause 9.6 in which case the Tenant
shall make up any deficiency out of the Tenant's own resources
9.8 The Tenant will comply with the terms and conditions of all insurance
policies effected pursuant to this clause and will not without the
previous written consent of the Landlord effect any additional
insurance against any of the Insured Risks upon or in respect of the
Premises
9.9 For the avoidance of doubt the obligations of the Landlord to effect
insurance pursuant to the provisions of this clause shall pending the
rant of the Lease prevail over the obligation of the Landlord under the
Lease to effect insurance pursuant to the Lease
10. OCCUPATION PENDING GRANT OF LEASE
Pending the grant of the Lease the Tenant shall when the Building or
any part or parts thereof shall be ready for occupation be at liberty
to occupy the same for the purpose of transacting business upon the
following terms and conditions:-
10.1 the Tenant's occupation shall be as licensee only of the Landlord
subject to the like exceptions and reservations covenants stipulations
conditions and other provisions on the part of the Landlord and the
Tenant under the Lease as would have applied (other than those as to
payment of rent) if the Lease had then been granted save to the extent
(if at all) that such provisions are inconsistent with the respective
obligations of the parties herein
10.2 the Tenant shall notify the Landlord in writing as soon as reasonably
practicable after its occurrence of the date when business is commenced
from any part of the Building
10.3 the Tenant shall pay to the Landlord by way of licence fee as from the
Target Date such sums at such times and in such manner as would have
been payable by way of rent (including without limitation items in
respect of insurance and services) if the Lease had then been granted
provided that any such sums paid by way of licence fee shall on
completion of the Lease be credited as payment of any such rents
payable under the Lease in respect of the like period
10.4 the Landlord shall have and be entitled to all remedies by distress
action or otherwise for recovering any licence fee in arrear and for
any breach of any of the covenants conditions or other obligations on
the part of the Tenant referred to in clause 10.1 as if the Lease had
actually been granted
11. GRANT OF LEASE
11.1 The Landlord shall grant and the Tenant shall accept and the Guarantor
shall execute a Lease of the Building in accordance with the following
provisions of this clause 11
12
11.2 The Lease shall be granted by the Landlord free from any encumbrances
save those as already disclosed at the date hereof and the Lease shall
be completed on the Completion Date (provided that the Court Order
referred to in the Lease has first been obtained which the parties
shall use reasonable endeavours to obtain) at the offices of the
Landlord's Solicitors or at such other address in the United Kingdom as
they shall reasonably require and (provided that the same shall have
been supplied to the Tenant's Solicitors at least 15 Working Days
previously) upon completion the Tenant shall deliver to the Landlord's
Solicitors a counterpart of the Lease and the Deed of Deposit duly
executed by the Tenant and the Guarantor together with in cleared funds
a sum equal to the Deposit Sum (as defined in the Deed of Deposit)
11.3 The Lease shall be in the form of the Lease and
11.3.1 the term shall commence on the quarter day preceding the
Target Date;
11.3.2 the rent firstly reserved by the Lease shall be determined in
accordance with clause 11.4 (exclusive of Value Added Tax);
11.3.3 the review dates shall be each successive fifth anniversary of
the commencement of the term;
11.3.4 the rent first secondly and thirdly reserved by the Lease
shall be due and commence from the Target Date
11.4
11.4.1 As soon as the Category B Works have been sufficiently
completed for the purpose and as soon as practicable following
the issue of the Certificate of Completion of the Category B
Works (if not before) the Landlord and the Tenant shall
procure that the Net Internal Area shall be measured in
accordance with the Code by the Landlord's Measurement
Surveyor and the Tenant's Consultant who shall attend upon the
Building and effect such measurement jointly
11.4.2 The Landlord's Measurement Surveyor and the Tenant's
Consultant shall be instructed to endeavour to agree upon the
Net Internal Area (measured as aforesaid) but if they are
unable to reach agreement by 10 Working Days before the Target
Date either of them may require the areas on which they have
been unable to agree to be measured by an independent surveyor
acting as an expert to be appointed by agreement between them
or in the absence of such agreement within 6 weeks after the
date of such measurement to be appointed on the application of
either of them by the President for the time being of the
Royal Institution of Chartered Surveyors. Such independent
surveyor shall invite the Landlord and the Tenant within such
period as he shall consider appropriate to make written
representations and counter-representations of their
respective views on the matter in dispute and the decision of
such independent surveyor shall be binding on the parties
(save in case of manifest error) and his costs shall be borne
as he shall direct
11.4.3 The rent firstly referred by the Lease shall be calculated by
multiplying the Net Internal Area so agreed or determined
(expressed in square feet) by Pound Sterling 13
13
11.5 The parties agree that if the Category B Works include one or more
chiller units to be constructed outside the Building it will be
necessary to provide for the use access maintenance repair insurance
and reinstatement thereof by means of a licence for Alterations Outside
the Demise which shall be in a form reasonably required by the Landlord
and such Licence shall be completed simultaneously with completion of
the Lease
12. EXISTING LEASES
12.1
12.1.1 The Tenant may by written notice require the Landlord to
accept a surrender of either or both of the Existing Leases on
a Working Day being not less than one calendar month after
service of such notice provided that if notice is served prior
to completion of the Lease it shall not take effect until (at
the earliest) the Lease has been completed
12.1.2 If such notice is given the Tenant shall procure that vacant
possession of the premises comprised in the Existing Leases
(or as the case may require that one of them in respect of
which notice is given) and that such premises are left clean
and tidy and that any damage caused by the removal of any
tenant's fixtures or fittings is made good to the reasonable
satisfaction of the Landlord and for the avoidance of doubt
the Tenant shall not be obliged to remove any such tenants
fixtures or fittings and/or reinstate the premises comprised
in the Existing Leases to their state and condition prior to
any alterations that have been carried out by the Tenant at
any time
12.1.3 Such surrender shall be effected by operation of law and the
Tenant shall on completion thereof ("the Surrender Date")
deliver to the Landlord all documents of title and keys in its
possession
12.1.4 Upon completion of each such surrender or surrenders as the
case may be the Landlord shall reimburse to the Tenant all
sums paid by way of rent service charges insurance rent and
Value Added Tax thereon paid on such payments in respect of
any periods subsequent to the Surrender Date together with any
sums held pursuant to two Deeds of Deposit dated 2nd August
1995 and 22nd November 1995 including for the avoidance of
doubt accrued interest (or as the case may require the
relevant one which relates to either of the Existing Leases
which is to be surrendered) after deduction therefrom of any
sums properly owed to The Landlord as at the Surrender Date
13. TITLE
13.1 The Landlord's title to grant the Lease having been deduced in
accordance with Section 110 of the Land Registration Act 1925 the
Tenant shall not be entitled to raise any requisition or objection in
respect of the same save in relation to any matters arising subsequent
to 17th November 1995
13.2 On or before the completion of the Lease the Landlord shall place its
land certificate on deposit at H.M. Land Registry to meet registration
of the Lease
14
13.3 On or before the date hereof the Landlord shall place its land
certificate on deposit at H.M. Land Registry to meet the registration
of a notice of this Agreement for Lease on the Charges Register of the
Landlord's freehold title number HD16 7467 for inter alia the Building
14. ALIENATION
The Tenant shall not assign underlet or part with the benefit of this
Agreement before the grant of the Lease and the Landlord shall not do
so whilst any sums due to the Tenant under clause 6 remain unpaid
15. MISCELLANEOUS
It is hereby expressly agreed and declared that:
15.1 this Agreement shall remain in full force and effect as regards the
obligations which may remain to be performed notwithstanding the grant
of the Lease
15.2 neither any approval of specifications relating to the Category B Works
nor any inspections of the Category B Works by or on behalf of the
Landlord shall relieve the Tenant the Tenant's Consultant or any of its
trade contractors or professional advisers employed or appointed in
relation to the Category B Works of any liability under this Agreement
15.3 the Tenant hereby admits that no representation whether oral or written
(save in any written reply to preliminary enquiries given by the
Landlord's Solicitors or in any correspondence ancillary thereto) has
been made to the Tenant prior to the date hereof by or on behalf of the
Landlord concerning the Building or any part thereof which has
influenced induced or persuaded the Tenant to enter into this Agreement
or any agreement collateral herewith
15.4 the Lease will be granted subject to all existing charges notices
orders directions regulations restrictions and other matters whatsoever
arising under the Town and Country Planning Act 1990 and the Tenant
shall be deemed to accept the Lease with the full knowledge thereof and
the existing authorised use of the Building for the purpose of such Act
and shall not raise any requisition enquiry or objection with regard
thereto
16. NOTICES
16.1 Any notice required to be served on any party shall be validly served
if left at or sent by ordinary pre-paid post or telex or facsimile
transmission to its registered office or principal place of business or
stated address for service in the United Kingdom
16.2 Any facsimile transmission shall be deemed to have been served at the
time of despatch on a Working Day but if not on a Working Day it shall
be deemed to have been served at the opening of business on the Working
Day next following the date of despatch provided that in either case
the outgoing facsimile transmission indicates its receipt by the
facsimile machine of the party to whom it is sent through the automatic
response of such party's number and answer back
15
16.3 Any notice sent by post shall be deemed to have been served on the
second Working Day next following the Working Day on which the envelope
containing the same is posted (or if it is not posted on a Working Day
then the third Working Day next following the day on which it is
posted) and in proving such service it shall be sufficient to prove
that the envelope containing the same was properly addressed and either
delivered to a Post Office or put into a Post Office letter box
17. TERMINATION
17.1 If:
17.1.1 the Tenant or the Guarantor fails to perform or observe any of
its obligations in this Agreement; or
17.1.2 any event occurs which had the Lease been granted would have
entitled the Landlord to re-enter the Building
and if such failure or event is capable of remedy but the Tenant does
not proceed to diligently remedy after the service on the Tenant of a
written notice specifying the failure or event and requiring the same
to be remedied within a reasonable time or if it is incapable of remedy
the Landlord may determine this Agreement by written notice served on
the Tenant who shall thereupon forfeit all interest in the Building and
in any fixtures installed in it and shall give up and cause to be given
up occupation of the Building without the Landlord making to the Tenant
any compensation or allowance whatsoever and the termination shall not
prejudice the Landlord's retention of any rights of action or remedy in
respect of any antecedent breach by the Tenant or the Guarantor
17.2 In the event of such determination the Tenant shall forthwith cancel or
procure the cancellation of any notice or other entry registered at HM
Land Registry relating to the interest of the Tenant in this Agreement
or the Building
18. GUARANTEE OF PERFORMANCE OF TENANT'S OBLIGATIONS
The Guarantor in consideration of the Landlord entering into this
Agreement at the request of the Guarantor unconditionally and
irrevocably agrees with and in favour of the Landlord as follows:-
18.1 If the Tenant shall fail in any respect to observe and perform the
terms and provisions of this Agreement or any of them the Guarantor
will fully observe perform and discharge the same AND without prejudice
to the generality of the foregoing the Guarantor hereby further
covenants to pay and make good to the Landlord forthwith on demand any
losses costs damages and expenses occasioned to the Landlord arising
out of or by reason of any default of the Tenant in respect of any of
its obligations under the terms and provisions of this Agreement (the
Guarantor expressly acknowledging and undertaking for all purposes of
this Agreement that in case of such failure or default on the part of
the Tenant then the Guarantor shall forthwith thereupon be liable and
required to remedy such failure or default and pay and make good the
sums and amounts expressed to be payable under this clause 18 AND
PROVIDED that any neglect or forbearance on the part of the Landlord in
enforcing or giving time for or other indulgence in respect of the
observance or performance of
16
any of the said agreements provisions and conditions other than a
release given under seal shall not release the Guarantor from its
liability under the agreement or guarantee on its part contained in
this clause 18)
18.2 If:-
8.2.1 the Tenant fails to observe or perform any of its obligations
in this Agreement; or
18.2.2 any event occurs which had the Lease been granted would have
entitled the Landlord to re-enter the Building; or
18.2.3 the Tenant shall cease for any other reason to be or to remain
liable under this Agreement; or
18.2.4 the Tenant shall fail to execute the Lease in accordance with
the provisions of clause 11
the Landlord may within 3 months following any such event by notice in
writing require the Guarantor to enter into an Agreement in the like
form as this Agreement (in accordance (if appropriate) with the proviso
hereto) but with the Guarantor substituted for the Tenant or if the
Lease is due to be executed but for any reason has not been so executed
to enter into the Lease of the Building in its then actual state and
condition for the term and at the rents and subject to the covenants
provisions and conditions therein as substitute in all respects for the
Tenant under this Agreement and the Guarantor shall thereupon execute
and deliver to the Landlord a counterpart of the Lease in exchange for
the Lease executed by the Landlord and contemporaneously therewith or
otherwise (if later) when the first instalment falls due under the
Lease the Guarantor as tenant shall pay the first instalment of the
rents due PROVIDED THAT where in consequence of any circumstance or
event (whether of default or otherwise) as provided in this clause 18
relating to the Tenant the Landlord shall become entitled to enforce
all or any of its rights or remedies against the Guarantor requiring
the Guarantor to enter into an Agreement or into a Lease in pursuance
of this sub-clause then the Guarantor shall assume all the obligations
and have all the rights of the Tenant as if the Guarantor had been an
original contracting party of the second part to this Agreement in
place of the Tenant (in addition to the Guarantor's actual capacity
hereunder) and the Guarantor shall assume all the obligations and
liabilities and have all the rights of the Tenant under this Agreement
18.3 It will enter into the Lease as guarantor for the obligations of the
Tenant under the Lease
18.4 The Landlord shall not be obliged before enforcing any of its rights or
remedies against the Guarantor to take any proceedings or obtain any
judgment against the Tenant in any Court or to make or file any claim
in any bankruptcy or liquidation of the Tenant and the liabilities of
the Guarantor under this clause 18 may be enforced irrespective of
whether any demands steps or proceedings are being or have been taken
against the Tenant and the terms of this clause 18 shall be a
continuing guarantee and shall remain in full force and effect until
each and every part of the obligations and covenants on the part of the
Tenant shall have been discharged and performed in full (subject to any
release under seal as aforesaid)
17
18.5 The Guarantor shall rank in respect of any sums paid under this clause
and in respect of any other rights which accrue howsoever to the
Guarantor in respect of any sums so paid or liabilities incurred
hereunder or in the observance performance or discharge of the
obligations and covenants on the part of the Tenant and be entitled to
enforce the same only after all the said obligations and covenants
shall have been observed performed and discharged in full and until
such observance performance and discharge the Guarantor shall not:-
18.5.1 seek to recover whether directly or by way of set-off lien
counter-claim or otherwise or accept any money or other
property or security or exercise any rights in respect of any
sum which may be or become due to the Guarantor on account of
failure by the Tenant to observe perform or discharge the said
obligations or covenants or the obligations of the Guarantor
hereunder from the Tenant or any third party
18.5.2 claim prove for or accept any payment in any composition by or
winding up or liquidation of the Tenant in competition with
the Landlord for any amount whatsoever owing to the Guarantor
by the Tenant on any account whatsoever
18.5.3 exercise any right or remedy in respect of any amount paid by
the Guarantor hereunder or any liability incurred by the
Guarantor in observing performing or discharging the said
obligations and covenants on the part of the Tenant and the
Guarantor warrants that it has not taken and will not without
the prior consent of the Landlord take any security from the
Tenant in connection with this guarantee and any security so
taken shall be held in trust for the Landlord as security for
the respective liabilities or the Guarantor and the Tenant
hereunder and the Guarantor shall not be entitled to any right
of proof in the bankruptcy or liquidation of the Tenant or any
other right of a guarantor discharging its liability in
respect of the said obligations and covenants unless and until
all of the same shall first have been paid observed performed
and discharged in full
18.6 Without prejudice to the rights of the Landlord against the Tenant the
Guarantor shall be a principal obligor in respect of its obligations
under this clause 18 and not merely a surety and accordingly the
Guarantor shall not be discharged nor shall its liability hereunder be
affected by any act or thing or means whatsoever by which its said
liability would not have been discharged if it had been a primary
debtor
18.7 The Guarantor shall pay all charges properly incurred by the Landlord
in relation to the Landlord's enforcement of this guarantee and
indemnity against the Guarantor or for enforcing payment by the
Guarantor of amounts indemnified by it hereunder
18.8 The liability of the Guarantor hereunder shall not be released reduced
affected or prejudiced by reason of:-
18.8.1 any legal limitation immunity disability incapacity occurrence
of insolvency or the winding-up of the Tenant or
18.8.2 (without limitation to the foregoing) any other act or thing
which (but for this provision) the Guarantor would have been
discharged or released (in each case in whole or in part) from
liability under this guarantee and indemnity
18
or any combination of any two or more of such matters
19. CONFIDENTIALITY
The Parties hereby agree that they will not disclose any details of the
terms of the Agreement and/or the Lease without first notifying the
other parties of the terms of such disclosure
IN WITNESS whereof this Deed has been executed by the parties hereto and is
intended to be and is hereby delivered on the date first above written
SIGNED and DELIVERED as a deed )
by )
as the Attorney of THE STANDARD )
LIFE ASSURANCE COMPANY (in )
exercise of a Power of Attorney under its )
Seal dated 22nd May 1995) in the presence )
of: )
SIGNED and DELIVERED as a deed )
by )
CITY MORTGAGE SERVICING LIMITED )
acting by )
Director
/Secretary
SIGNED and DELIVERED as a deed )
by )
CITY MORTGAGE CORPORATION LIMITED )
acting by )
Director
Director/Secretary
19
Annexures:
20
DATED _______________________ 1996
THE STANDARD LIFE ASSURANCE COMPANY
and
CITY MORTGAGE SERVICING LIMITED
and
CITY MORTGAGE CORPORATION LIMITED
DRAFT 10 APRIL 1996
LEASE
of premises known as Malvern House
Croxley Business Park
THIS LEASE IS A NEW TENANCY FOR THE PURPOSES OF THE
LANDLORD AND TENANT (COVENANTS) ACT 1995
HERBERT SMITH
Exchange House
Primrose Street
London EC2A 2HS
Tel: 0171 374-8000
Fax: 0171 496-0043
Ref: 65/NEW
TABLE OF CONTENTS
CLAUSE HEADINGS PAGE
1. DEFINITIONS AND INTERPRETATION ....................... 2
2. DEMISE AND RENTS ..................................... 7
3. TENANT'S COVENANTS ................................... 7
4. LANDLORD'S COVENANTS ................................. 14
5. IT IS AGREED AND DECLARED THAT:- ..................... 16
6. RENT REVIEW .......................................... 21
7. SERVICE RENT ......................................... 23
8. GUARANTEE AND GUARANTOR'S INDEMNITY .................. 24
9. JURISDICTION ......................................... 26
THE FIRST SCHEDULE PART I (THE PREMISES) ............................. 26
PART II ...................................................... 26
PART III ..................................................... 27
THE SECOND SCHEDULE .................................................. 28
PART I (ESTATE SERVICES) ..................................... 28
PART II (ADDITIONAL SERVICES) ................................ 29
PART III (BLOCK SERVICES) .................................... 29
THE THIRD SCHEDULE (REGULATIONS) ..................................... 30
THE THIRD SCHEDULE (REGULATIONS) ..................................... 33
TABLE OF CONTENTS
CLAUSE HEADINGS PAGE
1. DEFINITIONS AND INTERPRETATION ....................... 2
2. DEMISE AND RENTS ..................................... 7
3. TENANT'S COVENANTS ................................... 7
4. LANDLORD'S COVENANTS ................................. 14
5. IT IS AGREED AND DECLARED THAT:- ..................... 16
6. RENT REVIEW .......................................... 21
7. SERVICE RENT ......................................... 23
8. GUARANTEE AND GUARANTOR'S INDEMNITY .................. 24
9. JURISDICTION ......................................... 26
THE FIRST SCHEDULE PART I (THE PREMISES) ............................. 26
PART II ...................................................... 26
PART III ..................................................... 27
THE SECOND SCHEDULE .................................................. 28
PART I (ESTATE SERVICES) ..................................... 28
PART II (ADDITIONAL SERVICES) ................................ 29
PART III (BLOCK SERVICES) .................................... 29
THE THIRD SCHEDULE (REGULATIONS) ..................................... 30
THE THIRD SCHEDULE (REGULATIONS) ..................................... 33
THIS LEASE is made on the Lease Date
BETWEEN
(1) the Landlord;
(2) the Tenant; and
(3) the Guarantor
PARTICULARS DEFINITIONS AND INTERPRETATION
PARTICULARS
A. "LEASE DATE" is 1996
B. "LANDLORD" is The Standard Life Assurance Company of 3 George Street
Edinburgh EH2 2XZ
C. "TENANT" is City Mortgage Servicing Limited whose registered office is
at 19 Cavendish Square London W1A 2AW (Company Registration No.
3043775)
D. "GUARANTOR" is City Mortgage Corporation Limited whose registered
office is at 19 Cavendish Square London W1A 2AW (Company Registration
No. 3043776)
E. "PREMISES" are the land and buildings more particularly described in
Part I of the First Schedule to this Lease and shortly known as Malvern
House Croxley Business Park Watford Hertfordshire
F. "Plan No. 1A" "Plan No. 1B" "Plan No. 1C" "Plan No. 2" and "Plan No. 3"
are the plans annexed hereto and marked Plan No. 1A Plan No. 1B Plan
No. 1C Plan No. 2 and Plan No. 3 respectively
G. "RENT COMMENCEMENT DATE" is 1996
H. "TERM DATE" is [ ] 1996
I. "TERM" is twenty-five years calculated from and including the Term Date
J. "PRINCIPAL RENT" for the period commencing on the Rent Commencement
Date and ending immediately before the fifth anniversary of the Term
Date is [ ] pounds [(pounds sterling )] and for the
remainder of the Term is the Review Rent per annum fixed in accordance
with clause 6
K. "PERMITTED USE" is any use within Class B1 of the Town and Country
Planning (Use Classes) Order 1987 or for any other use or uses first
approved in writing by the Landlord (such approval not to be
unreasonably withheld or delayed) for which the Premises may from time
to time be used without contravention of the Town and Country Planning
Acts 1971-1990 the Local Government Planning and Land Act 1980 and
the Local Government and Planning (Amendment) Act 1981
L. "ESTATE" means the land (of which the Premises forms part) and all
buildings and other structures of whatsoever nature from time to time
erected thereon or on some part or parts thereof and the appurtenances
thereof which land is known as Croxley
1
Business Park Watford and for the purpose of identification is shown
edged blue on Plan No. 3 PROVIDED ALWAYS THAT if the Landlord from time
to time so reasonably requires the said expression shall mean such land
including the Premises (whether of greater or lesser extent than the
land aforesaid) as the relevant requirement may specify together with
all structures of whatsoever nature from time to time thereon
M. "BLOCK" means that part of the Estate shown for the purpose of
identification edged brown on Plan No. 2
N. "ESTATE SERVICE RENT" means 10.3% (or such other percentage as may be
assessed and notified to the Tenant from time to time in accordance
with Clause 7.5 hereof) of the Estate Service Expenditure
O. "ADDITIONAL SERVICE RENT" means 6.05% (or such other percentage as may
be assessed and notified to the Tenant from time to time in accordance
with Clause 7.5 hereof) of the Additional Service Expenditure
P. "BLOCK SERVICE RENT" means 100% (or such other percentage as may be
assessed and notified to the Tenant from time to time in accordance
with Clause 7.5 hereof) of the Block Service Expenditure
Q. "SERVICE RENT" means an amount equivalent to the aggregate of the
Estate Service Rent the Additional Service Rent and the Block Service
Rent for any relevant Service Period
R. "PROVISIONAL SUM" in relation to the first Service Period is a due
proportion of the sum of Thirty eight thousand seven hundred pounds
(pounds sterling 38,700) and in relation to each other Service Period
means an amount calculated by the Landlord's managing agents acting
as experts and not arbitrators as their reasonable and proper
estimate of the likely Service Rent for the relevant Service Period
S. "REVERSIONARY OBLIGATIONS" are the covenants declarations and other
matters affecting the Premises specified in the Property and Charges
Registers of Title No. HD 167464
T. "REGULATIONS" means the regulations set out in the Third Schedule and
any reasonable modifications thereof or additions thereto and notified
in writing to the Tenant made from time to time by the Landlord
U. Having been authorised to do so by an Order of the Shoreditch County
Court (No. ) made on the 1996 under Section
38(4)(a) Landlord and Tenant Act 1954 the parties agree that the
provisions of Sections 24 to 28 Landlord and Tenant Act 1954 shall
be excluded in relation to this Lease
1. DEFINITIONS AND INTERPRETATION
1.1 The following expressions and those contained in the particulars have
the meanings specified
1.1.1 "ADJOINING PREMISES" means any land or buildings adjoining or
near to the Premises whether or not comprised in the Estate
2
1.1.2 "Enactment" means every Act of Parliament and all subordinate
legislation made under such Acts
1.1.3 "CONDUITS" means pipes sewers drains mains ducts and all other
conducting media and ancillary equipment
1.1.4 "INSURERS" means the insurance office or underwriters with
whom the Premises are insured
1.1.5 "INSURED RISKS" means:-
(A) loss damage or destruction whether total or partial
caused by fire and other perils against which the
Landlord from time to time thinks fit to insure
except for such exclusions and limitations as may be
imposed by the Insurers;
(B) property owners liability; and
(C) loss of not less than three years' Principal Rent
Service Rent and Value Added Tax thereon
1.1.6 "INSURANCE RENT" means in respect of any period for which the
same is required to be calculated an amount equal to the
aggregate of the total premium and other costs incurred by the
Landlord for insuring the Premises against the Insured Risks
1.1.7 "INTEREST" means interest during the period from the date on
which the relevant payment is due to the date of payment (both
before and after any judgment) calculated on a daily basis at
the rate of 4% per annum above the base rate for the time
being of the Bank of Scotland or of some other leading
clearing bank in the UK as constituted at the date of this
Lease nominated in writing from time to time by the Landlord
1.1.8 "PUBLIC AUTHORITY" means the Secretary of State and any
government department public local or any other authority or
institution and any court of law or any of them or any of
their duly authorised officers
1.1.9 "ESTATE SERVICES" means the services set out in Part I of the
Second Schedule hereto
1.1.10 "ADDITIONAL SERVICES" means the services set out in Part II of
the Second Schedule hereto
1.1.11 "BLOCK SERVICES" means the services set out in Part III of the
Second Schedule hereto
1.1.12 "SERVICES" means the Estate Services the Additional Services
and the Block Services
1.1.13 "ESTATE SERVICE EXPENDITURE" means the aggregate expenditure
incurred by the Landlord in any Service Period in carrying out
or providing the carrying out of the Estate Services
3
1.1.14 "ADDITIONAL SERVICE EXPENDITURE" means the aggregate
expenditure incurred by the Landlord in any Service Period in
carrying out or providing the carrying out of the Additional
Services
1.1.15 "BLOCK SERVICE EXPENDITURE" means the aggregate expenditure
incurred by the Landlord in any Service Period in carrying out
or providing the carrying out of the Block Services
1.1.16 "SERVICE EXPENDITURE" means the aggregate of the Estate
Service Expenditure the Additional Service Expenditure and the
Block Service Expenditure and all other expenditure reasonably
and properly incurred by the Landlord in connection with the
Estate and/or Block or any part or parts thereof and without
prejudice to the generality of the foregoing:-
(A) the reasonable cost incurred of employing any
accountant and surveyor and agent or any of them
employed to determine record and certify the cost of
providing the Estate Services the Additional Services
and Block Services the Provisional Sum and the
Service Rent; and
(B) a reasonable charge by the Landlord of the costs of
employing managing agents
but excluding any expenditure on any part of the Estate and/or
Block for which the Tenant or any other tenant or the Landlord
in respect of any unlet or unoccupied parts shall be
responsible
1.1.17 "GROSS INTERNAL AREA" for the meaning ascribed to that
expression by the Code of Measuring Practice published on
behalf of the Royal Institution of Chartered Surveyors and the
Incorporated Society of Valuers and Auctioneers which is in
common use at the relevant time
1.1.18 "PERMITTED PART" means any part of the Premises comprising
either
(A) the whole of one or more complete floor levels as
shown edged red on Plan 1A Plan 1B and Plan 1C;
(B) the whole of one or more complete wings (the extent
of a complete wing to be agreed at the relevant time
by the parties acting reasonably) of any such floor
level excluding in either case the structural and
load bearing parts of the Premises the ground floor
entrance lobby area and all circulation areas and
plant and equipment which are common to that part and
the remainder of the Premises
1.1.19 "LANDLORD'S SPECIFICATION" means the specification attached
hereto so entitled
1.1.20 RENT REVIEW DEFINITIONS
"REVIEW DATE" means each of the fifth tenth fifteenth and
twentieth anniversary of the Term Date
4
"CURRENT RENT" means in relation to any Review Date the
Principal Rent payable under this Lease immediately before
that Review Date
"MARKET RENT" means in relation to the Review Date the yearly
market rack rental value which might reasonably be expected to
be payable following the expiry of any reasonable period at
the beginning of the term which might be negotiated in the
open market but only for the purposes of fitting out during
which no rent or a concessionary rent is payable if the
Premises had been let as a whole with vacant possession on the
relevant Review Date in the open market by a willing lessor to
a willing lessee without fine or premium for a term equal to
the residue of the Term from the relevant Review Date and
otherwise upon the provisions (save as to the amount of the
rent first reserved by this lease but including the provisions
for rent review) contained in this lease and on the assumption
if not a fact that the said provisions have been fully
complied with and on the further assumptions that:
(A) the Permitted Use and the Premises comply with
Planning Law and every other Enactment free from any
onerous condition restriction and limitation and that
the lessee may lawfully implement and carry on the
Permitted Use;
(B) the Premises have been fined out and equipped or
described in the Landlord's Specification;
(C) no work has been carried out to the Premises which
has diminished their rental value;
(D) in case the Premises or any of the Common Parts have
been destroyed or damaged they have been fully
restored;
but disregarding any effect on rent of:
(i) the fact that the Tenant or any underlessee or other
occupier or their respective predecessors in title
has been or is in occupation of the Premises;
(ii) any goodwill attached to the Premises by the carrying
on in them of the business of the Tenant or any
underlessee or their respective predecessors in title
or other occupier;
(iii) any works carried out to the Premises during the Term
by the Tenant or any permitted underlessee in either
case at its own expense in pursuance of a licence
granted by the Landlord and otherwise than in
pursuance of any obligation to the Landlord (but
nevertheless without prejudice to paragraphs (B) and
(C) of this definition);
(iv) Notwithstanding paragraph (iii) of this definition
all works carried out by the Tenant pursuant to an
Agreement for Lease between the parties hereto dated
[ ] (but nevertheless without prejudice
to paragraphs (B) and (C) of this definition); and
5
(v) any contingent obligation on the Tenant to carry out
works of reinstatement and restoration at the end of
the Term;
"REVIEW RENT" means in relation to the relevant Review Date
the higher of the Current Rent and the Market Rent
"INTERIM RENT" means a yearly sum and proportionately for any
part of a year equivalent to the aggregate of the following
amounts:-
(i) an amount equivalent to sixty-six and two thirds per
centum of the sum (if any) by which the Landlord's
initial opinion (as notified in writing at any time
by the Landlord to the Tenant for the purposes
hereof) of the Market Rent at the relevant Review
Date exceeds the Current Rent; and
(ii) an amount equivalent to the Current Rent
"ARBITRATOR" means a person appointed by agreement between the
Landlord and the Tenant or (in default of agreement within
fourteen days of one party giving notice to the other of its
nomination) by nomination by or on behalf of the President for
the time being of the Royal Institution of Chartered Surveyors
on the application of either party made on or at any time
after three months before the relevant Review Date who is an
independent Chartered Surveyor who has not less than ten years
practice next before the date of his appointment and recent
substantial experience in the letting and valuation of
premises of a similar character and quality to those of the
Premises and in the locality of the Premises and who is a
partner or director of a leading firm or company of surveyors
having specialist market and valuation knowledge of such
premises
1.2 Singular words include the plural and vice versa and the masculine
gender includes the neuter gender and vice versa and each includes the
feminine gender
1.3 Where two or more persons comprise the "Tenant" and "Guarantor" such
persons covenant with the Landlord jointly and severally
1.4 The Tenant by covenanting not to do or omit any act or thing also
covenants not to permit or suffer it to be done or omitted
1.5 References in this Lease to:-
1.5.1 any consent licence or approval of the Landlord or words to
similar effect mean a consent licence or other approval in
writing signed by or on behalf of the Landlord
1.5.2 the Premises (except in clauses 5.2 and 5.3) shall be
construed as extending to any part of the Premises
1.5.3 a specific Enactment includes every statutory modification
consolidation and re-enactment and statutory extension of it
for the time being in force
1.5.4 the Landlord's managing agents may include the Landlords' own
employees
1.6 Any rent (whether or not defined in the Particulars or in clause 1.1)
and other amounts which may be or become payable to the Landlord under
this Lease are exclusive of all
6
Value Added Tax which may be or become chargeable on the relevant
supply by the Landlord
2. DEMISE AND RENTS
The Landlord DEMISES with Full Title Guarantee the Premises to the
Tenant for the Term YIELDING and PAYING:
2.1 FIRST yearly and proportionately for any part of a year the Principal
Rent payable by equal quarterly payments in advance on the usual
quarter days in each year without deduction the first payment or a
proportionate part for the period commencing on the Rent Commencement
Date (calculated on an annual basis) to be made on the Lease Date
2.2 SECONDLY with effect from the Lease Date as additional yearly rent the
Insurance Rent payable without deduction within fourteen days of demand
2.3 THIRDLY with effect from the Lease Date as additional yearly rent the
Service Rent (including the Provisional Sum on account) payable in
accordance with clause 7
2.4 FOURTHLY as additional rent from time to time such sums as the Landlord
may expend following any default by the Tenant in expending them in
pursuance of its obligations to do so under this Lease the payment of
which shall be made without deduction within fourteen days on demand
2.5 FIFTHLY as additional rent Interest payable on demand on any sum of
whatsoever nature:-
2.5.1 due from the Tenant to the Landlord (whether as rent or
otherwise) which shall not be received by the Landlord within
fourteen days after the sum is due
2.5.2 properly or reasonably incurred by the Landlord in connection
with and following some default by the Tenant under this Lease
2.6 SIXTHLY as additional rent all Value Added Tax payable in accordance
with clause 3.2.3
3. TENANT'S COVENANTS
The Tenant covenants with the Landlord
3.1 PAYMENT OF RENTS
3.1.1 To pay the rents reserved by this Lease on the days and in the
manner set out in clause 2
3.1.2 To pay the Principal Rent by banker's standing order to such
bank as the Landlord may from time to time reasonably nominate
in the United Kingdom as constituted at the date of this Lease
3.2 PAYMENT OF OUTGOINGS
3.2.1 To pay (or if the Landlord shall require to repay the
Landlord) all existing and future rates taxes (including Value
Added Tax) duties charges and other
7
outgoings whatsoever whether recurring non-recurring usual or
novel which are now or at any time during the Term shall be
payable by the owner landlord tenant or occupier in respect of
the Premises excluding all sums payable by the Landlord in
respect of any dealing with the reversion of this Lease or of
the Landlord's receipt of income
3.2.2 To pay all costs and charges whatsoever incurred for gas
electric current and power and water supplied to the Premises
3.2.3 (Without prejudice to the provisions of paragraph 3.2.1) to
pay any Value Added Tax (or any tax of a similar nature which
may be substituted for or levied in addition to it) which is
now or may become payable in respect of the rents reserved by
this Lease and of any other amount payable by the Tenant to
the Landlord under or in connection with this Lease and of any
supplies whether of goods or services (including an amount
equivalent to any such tax (but only to the extent that the
Landlord does not obtain credit therefor pursuant to Sections
25 and 26 Value Added Tax Act 1994 or any regulations made
thereunder) on any sums which the Tenant may be liable to
reimburse to the Landlord) provided that the Landlord supplies
to the Tenant a VAT invoice in respect of such rents and other
sums the payment by the Tenant of Value Added Tax to be made
contemporaneously with any rents or other sums to which it
relates
3.3 PAYMENT OF COST OF NOTICES CONSENTS ETC.
To pay all reasonable costs charges and expenses (including counsel's
solicitors' and surveyors' fees) incurred by the Landlord in and
incidental to:
3.3.1 the preparation and service of a notice under section 146 Law
of Property Act 1925 or in or in contemplation of any
proceedings under section 146 or 147 of that Act
notwithstanding that forfeiture is avoided otherwise than by
relief granted by the court and
3.3.2 every step taken during or within three months after the
expiration of the Term and in contemplation of or in
connection with or with the actual service of all notices and
schedules of dilapidations relating to the Tenant's
obligations and
3.3.3 every application for consent or licence or approval under
this Lease unless such consent or approval is unreasonably
withheld or delayed and/or unlawfully withheld or delayed
3.4 REPAIR
To keep the Premises and all lighting and drainage systems water gas
and other installations fire fighting equipment and all other machinery
in the Premises in good repair and condition (damage to the Premises by
any Insured Risk excepted to the extent the insurance or the payment of
insurance money has not been invalidated solely or in part because of
some act or default of the Tenant or by any person claiming through it
or for whom it is responsible)
8
3.5 DECORATION AND GENERAL CONDITION
3.5.1 To keep the Premises clean and tidy and in good decorative
order in conformity with the principles of good estate
management and (without prejudice to the foregoing):
(A) in the fifth year of the Term and during the last six
months thereof to prepare paint or otherwise treat
the internal parts of the Premises usually or which
ought properly to be so dealt with in a good and
workmanlike manner with appropriate materials of good
quality (in a colour scheme first approved by the
Landlord in the case of decoration in the last six
months of the Term such consent not to be
unreasonably withheld or delayed) to the Landlord's
reasonable satisfaction
(B) in the third year of the Term and during the last six
months thereof to prepare paint or otherwise treat
the external parts of the Premises usually or which
ought properly to be so dealt with in a good and
workmanlike manner with appropriate materials of good
quality (in a colour scheme first approved by the
Landlord in the case of decoration in the last six
months of the Term such consent not to be
unreasonably withheld or delayed) to the Landlord's
reasonable satisfaction
3.5.2 To keep all glazing in the Premises properly clean at all
times
3.6 ADDITIONS ALTERATIONS AND SIGNS
3.6.1 Not to erect any new buildings or other structures at the
Premises and not to cut injure remove or alter or carry out
other work affecting the walls beams columns or other load
bearing elements or change the existing external design or
appearance of the Premises and not to commit any waste
3.6.2 Not to make any other alteration or addition except with the
Landlord's consent (which will not be unreasonably withheld or
delayed) and (if the consent is given) to carry the work out
in a good and workmanlike manner PROVIDED THAT the
installation and removal of internal demountable partitioning
shall not require the Landlord's consent and notwithstanding
anything herein contained the Tenant shall not require the
Landlord's approval to any non-structural alterations that do
not affect the external appearance of the Premises PROVIDED
FURTHER THAT the Tenant shall provide to Landlord full details
of any such works within 14 days of completion of such works
3.6.3 Not to attach to or exhibit in or on the Premises (including
the windows) any sign which is visible from the outside
without the Landlord's consent such consent not to be
unreasonably withheld or delayed other than a signboard or
nameplate stating the Tenant's name and the business of a size
and design and in a location that will be prescribed by the
Landlord
3.6.4 Without prejudice to the foregoing provisions of this clause
the Tenant may with the Landlord's prior consent such consent
not to be unreasonably withheld
9
or delayed and subject to compliance with clause 3.7 change
the name of the building erected on the Premises
3.6.5 At the expiration of the Term if and to the extent required by
the Landlord unless otherwise expressly agreed in writing to
remove all alterations additions and signs made to or
installed on the Premises by the Tenant after the date hereof
(but without prejudice to the obligation in clause 3.19) and
to restore and make good the Premises to the plan and design
which existed before the alterations additions or
installations were made
3.7 COMPLIANCE WITH ENACTMENTS
3.7.1 To comply with all Enactments and with the requirements of
every Public Authority in respect of the Premises and their
use and any permitted work being carried out to them and not
to do or omit anything by which the Landlord may become liable
to make any payment or do anything under any Enactment or
requirement of a Public Authority
3.7.2 Forthwith on receipt of any communication or proposal from any
Public Authority relating to the Premises to send the Landlord
a copy of it
3.8 LANDLORD'S RIGHT TO ENTER FOR VARIOUS PURPOSES
3.8.1 To permit the Landlord and all others authorised by it at
reasonable times on reasonable prior notice (except in an
emergency) to enter and remain on the Premises with or without
equipment for all purposes in connection with the Premises or
any Adjoining Premises and to carry out works thereon which
are necessary or in all the circumstances reasonable and to
allow the Landlord to affix (but not so as to interfere
materially with the Tenant's use and enjoyment of the
Premises) notices to the Premises
3.8.2 To permit the Landlord and its surveyors and agents and others
with the written authorisation of the Landlord on its behalf
or any of them to enter upon the Premises in the last six
months of the term hereby granted (whether by effluxion of
time or sooner determination) to view the Premises at
reasonable times by prior arrangement with the Tenant
3.9 COMPLIANCE WITH NOTICES RELATING TO REPAIR OR CONDITION
If within two months after service of a notice from the Landlord to
remedy any breach of covenant relating to the state of repair or
condition of the Premises (or earlier in the case of emergency) the
Tenant shall not have commenced and be proceeding expeditiously with
the remedial work or if in the Landlord's reasonable opinion the Tenant
is unlikely to have completed or has not completed the relevant work by
the expiry of four months (or any shorter period in the case of
emergency) after service of the notice to permit the Landlord to enter
the Premises and as the Tenant's agent remedy the breach and to pay the
Landlord the cost of doing so and all expenses incurred (including
solicitors costs and surveyors fees) within seven days of demand
3.10 USE
Not to use the Premises or any tenant's fixtures or chattels in them:-
10
3.10.1 for any purpose (and not to do anything in or to the Premises)
which may be or become or cause a nuisance disturbance
obstruction or damage to any person or property
3.10.2 for any dangerous noxious noisy illegal or offensive trade
business or activity or for residential purposes and not to
create unnecessary noise or vibration or exhaust fumes on any
parts of the Estate
3.10.3 (without prejudice to the preceding paragraphs of this
sub-clause) except for the Permitted Use and to carry on the
Permitted Use in the Premises
3.11 MACHINERY AND LOADING
Not to affix to the ceilings walls and floors in the Premises any plant
or machinery (other than desk-top office equipment) without the
Landlord's previous written consent which shall not be unreasonably
withheld or delayed PROVIDED ALWAYS that no equipment machinery or
apparatus shall be installed or operated in the Premises and nothing
shall be done or omitted in the Premises which may cause the efficiency
of the heating ventilation air conditioning and cooling system (if any)
installed in the Building to be diminished or impaired in any way
whatsoever or the balance thereof in any way interfered with
3.12 ARTICLES OUTSIDE BUILDING
Not to store anything outside any part of the Premises save as
permitted elsewhere in this Lease
3.13 PARKING/GOODS DELIVERY
3.13.1 Not at any time to load or unload or park any vehicle outside
the part or parts of the Estate allocated for those purposes
from time to time by the Landlord nor to obstruct the
entrances and exits to and from the Estate or the adjacent
highways nor permit any vehicle to park on any part of any
roadway
3.13.2 In relation to the use of the loading unloading and parking
areas from time to time allocated to the Tenant pursuant to
Part III of the First Schedule hereto (hereinafter referred to
as "the relevant areas"):
(A) not to use the parking spaces for any purpose other
than the parking of one vehicle in any one space and
not to use the loading and unloading areas other than
for those purposes
(B) to keep the relevant areas in a clean and tidy
condition and free from oil waste and any other
deleterious matter or thing whatsoever
(C) forthwith to make good to the satisfaction of the
Landlord all damage caused to the relevant areas and
any other parts of the Premises and/or the Estate and
to any other property caused by such uses
3.14 Alienation
3.14.1 Not to assign underlet or otherwise part with or share
possession or occupation of the Premises or any part of them
except that the Tenant may assign the
11
[FOLIO 12 COPY TO BE SUPPLIED BY CLIENT]
3.16.1 or damage or use any area leading to the Premises in a way
which causes nuisance damage or annoyance
3.16.2 the means of escape in case of emergency from or to the
Premises
3.16.3 or discharge any deleterious matter into any Conduit serving
the Premises and to keep them clear and functioning properly
3.16.4 not to carry out any repairs or maintenance works (except
minor repairs in case of emergency) to vehicles
3.16.5 stop-up or darken the windows and other openings of the
Premises
3.16.6 any notice erected by the Landlord under clause 3.8 nor to
overload or cause undue strain to the Premises or to any
Conduit
3.17 PRESERVATION OF EASEMENTS
3.17.1 To preserve all rights of light and other easements belonging
to the Premises and not to give any acknowledgement that they
are enjoyed by consent
3.17.2 Not to do or omit anything which might subject the Premises to
the creation of any new easement and to give notice to the
Landlord of any encroachment known to the Tenant which might
have that effect forthwith on becoming aware of the same
3.18 DEFECTIVE PREMISES
Forthwith on becoming aware of the same to give notice to the Landlord
of any defect in the Premises which might give rise to:-
3.18.1 an obligation on the Landlord to do or refrain from doing
anything in relation to the Premises; or
3.18.2 any duty of care or the need to discharge such duty imposed by
the Defective Premises Act 1972 or otherwise
and at all times to display and maintain all notices which the Landlord
may from time to time reasonably require to be displayed at the
Premises in relation to their state of repair and condition
3.19 YIELD UP
3.19.1 At the expiration of the Term to yield up the Premises to the
Landlord in such state and condition as shall in all respects
be consistent with a substantial performance by the Tenant of
the covenants on its part herein contained (tenant's fixtures
and fittings only excepted subject to the Tenant making good
all damage to the Premises occasioned by their removal) and
upon such yielding up the Tenant shall if so required by the
Landlord in writing
(A) forthwith remove all signs nameplates and any other
items indicating the connection or former connection
of the Tenant with the Premises and
13
(B) (to the extent the Landlord may require) take out and
remove from the Premises all works not in accordance
with the Landlord's Specification and install or
reinstate (as the case may be) such works (or the
equivalent thereof) as are necessary to ensure that
the Premises conform to the Landlord's Specification
all such works of installation to be carried out
within three months of such expiration or sooner
determination in a good and workmanlike manner to the
reasonable satisfaction of the Landlord
and for the avoidance of doubt it is agreed that the
obligation contained in this clause 3.19 shall survive any
such expiration or sooner determination of the Term or of this
Lease
3.19.2 To reimburse the Landlord on demand all expenditure (including
without limitation all fees properly incurred in connection
therewith) reasonably incurred by the Landlord within twelve
months after the expiration of the Term in repairing painting
reinstating or otherwise treating and decorating the Premises
so as to put them into the condition commensurate with the due
performance of the Tenant's covenants herein contained
3.19.3 Upon removal of any tenant's fixtures and fitting as are
connected to or take supplies from any of the Conduits to
remove and seal off such Conduits as the Landlord shall
reasonably require such removal and sealing off to be carried
out so as not to interfere with the continued function of the
remainder of the Conduits
3.20 COVENANTS
To observe and perform:-
3.20.1 the obligations of the grantee or licensee contained in every
consent licence or approval granted in pursuance of this
Lease; and
3.20.2 the Reversionary Obligations and Regulations in so far as they
are still subsisting and relate to and/or affect the Premises
4. LANDLORD'S COVENANTS
The Landlord covenants with the Tenant:
4.1 QUIET ENJOYMENT
That if the Tenant observes and performs its covenants contained in
this Lease the Tenant may peaceably and quietly hold and enjoy the
Premises without any lawful interruption by the Landlord or any person
rightfully claiming through under or in trust for it
4.2 INSURANCE
4.2.1 To keep the Premises (except any demountable partitioning and
floor and decorative wall surface covers not installed by the
Landlord and fixtures which are strictly trade fixtures)
insured against the Insured Risks and (in relation to the
risks described in paragraph (i) of the definition of Insured
Risks) in a sum
14
equivalent to the full rebuilding cost (but not necessarily
the facsimile reinstatement cost) of the Premises TOGETHER
WITH Value Added Tax (or any tax of a similar nature which may
be substituted for or levied in addition to it) which is now
or may become payable by the Landlord in respect of any such
rebuilding costs and any professional fees relating thereto
4.2.2 on request to supply the Tenant with evidence of such
insurance
4.2.3 if and whenever during the Term the Premises are damaged or
destroyed by an Insured Risk and the payment of the insurance
monies is not refused in whole or in part by reason of any act
or default of the Tenant or of any person claiming through it
or for whom it is responsible the Landlord will (subject to
clause 5.5) with all convenient speed diligently take the
necessary steps to obtain any requisite planning permissions
and consents and if they are obtained to lay out all monies
received in respect of such insurance (except sums in respect
of public liability and loss of rent) in and towards replacing
but not necessarily in facsimile reinstatement the damaged or
destroyed parts (except as mentioned in clause 4.2.1) as soon
as reasonably practicable in a manner consistent with and
appropriate for the use of the Premises for the Permitted Use
and where such replacement is not facsimile reinstatement with
the consent of the Tenant (such consent not to be unreasonably
withheld or delayed) in relation to any works installed by the
Tenant at the Tenant's cost whether carried out before or
after the date of this Lease and will make up any deficiency
out of its own money PROVIDED ALWAYS THAT the Landlord shall
not be liable to replace any damaged or destroyed building if
it is unable (having used all reasonable endeavours) to obtain
every planning permission and consent necessary to execute the
relevant work in which event the Landlord shall be entitled to
retain all the insurance monies received by it
PROVIDED ALWAYS THAT the Landlord's obligation to insure does not
extend to any work installed in the Premises by or through the Tenant
in respect of which it has failed to comply with clause 3.15.1 and in
relation to such work any insurance or replacement obligation on the
Landlord is limited to the amount of the last valuation provided under
that clause (allowing for reasonable inflation)
4.3 SERVICES
4.3.1 To perform the Services in accordance with the principles of
good estate management PROVIDED ALWAYS THAT the Landlord shall
not be liable to the Tenant in respect of any failure or
interruption in any of the Services by reason of necessary
repair replacement or maintenance of any installation or its
damage or destruction or by reason of mechanical or other
defect or breakdown or any other cause beyond the Landlord's
control
4.3.2 The Landlord may from time to time withhold add or extend and
vary or make any alteration in the nature of matters
previously performed as Services if the Landlord reasonably
considers it necessary or in the interest of good estate
management provided that such changes do not substantially
diminish the availability and/or quality of the Services to
the Estate and/or the Tenant's use and occupation and
enjoyment of the Premises
15
5. IT IS AGREED AND DECLARED THAT:-
5.1 RE-ENTRY
Without prejudice to any other remedies and powers contained in this
Lease or otherwise available to the Landlord if
5.1.1 the whole or part of the rents shall be unpaid for twenty-one
days after becoming payable (in the case of the Principal Rent
whether formally demanded or not); or
5.1.2 any of the Tenant's covenants in this Lease are not performed
or observed; or
5.1.3 the Tenant (or if more than one person any one of them being a
company) is the subject of a petition for its winding up or
enters into liquidation whether voluntarily (except for
reconstruction or amalgamation of a solvent company) or
compulsorily or has a provisional liquidator or receiver
(including an administrative receiver) appointed or is the
subject of an administration order or petition for one or of a
voluntary arrangement or proposal for one under Part I
Insolvency Act 1986 or is unable to pay its debts within the
meaning of Section 123 Insolvency Act 1986 or is otherwise
insolvent or having been registered with unlimited liability
acquires limited liability; or
5.1.4 the Tenant (or if more than one person any one of them being
an individual) is the subject of a bankruptcy petition or
bankruptcy order or of any application or order or appointment
under Section 253 or Section 273 or Section 286 Insolvency Act
1986 or otherwise becomes bankrupt or insolvent; or
5.1.5 the Tenant enters into or makes any proposal to enter into any
arrangement or composition for the benefit of his creditors
then the Landlord may at any time thereafter (and notwithstanding the
waiver of any previous right of re-entry) re-enter the Premises
whereupon this Lease shall absolutely determine but without prejudice
to any Landlord's right of action in respect of any antecedent breach
of the Tenant's covenants in this Lease
5.2 ASSIGNMENT
5.2.1 So long as the conditions set out in this clause are first
satisfied the Tenant may assign the whole of the Premises
5.2.2 The conditions (which are specified for the purposes of
Section 19(1)(A) of the Landlord and Tenant Act 1927) are:-
(A) that subject as provided in sub-clause 5.2.2(B) and
if the Landlord so reasonably requires the proposed
assignee procures one but not both of the following:
(1) covenants with the Landlord by a guarantor
or guarantor not being the Tenant or any
guarantor of the Tenant approved by the
Landlord (who shall act reasonably and
without delay in giving its approval) in the
same terms (mutatis mutandis) as contained
in clause 8 hereof; or
16
(2) a deposit with the Landlord of an amount
equal to the then current yearly rent first
reserved by this Lease and an amount
equivalent to VAT thereon the terms of such
deposit to be governed by a document which
requires an increase in the deposit amount
to cover any increase in the yearly rent
(including VAT) following a rent review and
which otherwise is on terms which the
Landlord reasonably requires; and
(B) if the proposed assignment is to a Group Company:
(1) if the Tenant's obligations under this Lease
are guaranteed by another Group Company that
such Group Company covenants with the
Landlord in the same terms (mutatis
mutandis) as those contained in Clause 8; or
(2) if there is no guarantor of the Tenant's
obligations under this Lease and if the
assignee is not in the Landlord's reasonable
opinion of equivalent or greater financial
standing as the Tenant that the proposed
assignee procures covenants in a form which
the Landlord reasonably requires by a Group
Company which is not the Tenant or the
assignee and which is in the Landlord's
reasonable opinion of equivalent or greater
financial standing as the Tenant; or
(3) if the Tenant's obligations under this Lease
are secured by a deposit security the
proposed assignee procures a deposit with
the landlord of the amount and on terms
described in subclause 5.2.2(A)(2) above;
and
and in this sub-clause 5.2.2(B) the expression Group
Company means either the holding company of the
Tenant or a wholly-owned subsidiary of the Tenant or
of the Tenant's holding company (as those expressions
are defined in Section 736 Companies Act 1985)
(C) that the Landlord's consent is issued within three
months before completion of the assignment which
consent (subject to compliance with the foregoing
conditions) shall not be unreasonably withheld or
delayed
(D) that the conditions are satisfied on or before the
date of the assignment
(E) that the Tenant enters into an authorised guarantee
agreement as defined in Section 16 of the Landlord
and Tenant (Covenants) Act 1995 with the Landlord in
a form which the Landlord reasonably requires; and
(F) that any guarantor of the Tenant's obligations under
this Lease guarantees to the Landlord that the Tenant
will comply with that agreement in a form which the
Landlord reasonably requires
17
5.3 UNDERLETTING
5.3.1 So long as the conditions set out in this clause are first
satisfied the Tenant may underlet the whole of the Premises or
any Permitted Part (each being referred to in this sub-clause
as the premises)
5.3.2 The conditions are:
(A) before the underletting the underlessee shall have
given to the Landlord a covenant to observe and
perform the Tenant's obligations under this lease to
the extent they relate to the premises (other than
the payment of rents) and a covenant not to assign
the whole of the premises without the Landlord's
consent (which shall not be unreasonably withheld or
delayed if in relation to the assignment the
conditions which are referred to in clause 5.2.2 are
first satisfied) and an unqualified covenant not to
assign part of the premises or to underlet or
otherwise part with possession or share the
occupation of the premises or any part of them;
(B) the underlease shall reserve as a yearly rent without
payment of a fine or premium (in addition to the
service and insurance and other rents payable under
this lease except the rent first hereby reserved or
(in the case of underletting of a Permitted Part) a
pro rata proportion of them) an amount equal to:
(1) (in the case of an underletting of the
Premises) the then open market rack rental
value of the Premises
(2) (in the case of an underletting of a
Permitted Part) the then open market rack
rental value of the Permitted Part
in all cases such rent to be approved by the Landlord
prior to the underletting (such approval not to be
unreasonably withheld or delayed) and payable by
equal quarterly instalments in advance on the usual
quarter days;
(C) the form of underlease (which shall not express the
rents or any rent review or other sum to be payable
or otherwise assessed simply by reference to a
percentage or proportion of the rent or any rent
review or of any other sum payable under this lease
but which shall require them to be payable and
assessed in accordance with the same principles as
are required by this lease) shall be approved by the
Landlord such approval not to be unreasonably
withheld or delayed if the other provisions of this
paragraph are observed;
(D) the underlease shall:-
(1) provide for the principal rent reserved by
the underlease to be reviewed upwards only
at each of those Review Dates which will
occur during the sub-term in accordance with
the same principles (mutatis mutandis) as
apply to the review of the rent first
reserved by this lease;
18
(2) require the underlessee to observe and
perform all the covenants and other
provisions binding on the Tenant under this
lease (other than the covenant by the Tenant
to pay rents) to the extent they relate to
the premises; and provide for:
(a) a condition for re-entry by the
underlessor on breach of any
covenant by the underlessee;
(b) a qualified covenant not to assign
the whole of the premises (subject
to prior compliance with conditions
in the same terms as those set out
in clause 5.2.2) and an absolute
covenant not to assign part of the
premises or to underlet or
otherwise part with possession or
share the occupation of the
premises or any part of them;
(c) the exclusion of sections 24 to 28
inclusive Landlord and Tenant Act
1954 in relation to the underlease
in pursuance of an Order duly made
under section 38(4) of that Act
before the grant of the underlease
5.4 RENT CESSER
If and whenever during the Term:-
5.4.1 the Premises are destroyed or damaged by an Insured Risk so
that they are unfit for occupation and use; and
5.4.2 the insurance of the Premises and the payment of any insurance
money has not been vitiated by the act neglect default or
omission of the Tenant or of any person claiming through it or
for whom it is responsible
the Principal Rent and Service Rent or a fair proportion of them
according to the nature and extent of the damage sustained shall be
suspended and cease to be payable from the date of destruction or
damage until the date on which the Premises are made fit for
substantial occupation and use or until the third anniversary of the
date of destruction or damage whichever shall first occur and any
dispute about such suspension and cesser shall be referred to the award
of a single arbitrator to be appointed in default of agreement on the
application of either parity by the President for the time being of the
Royal Institution of Chartered Surveyors in accordance with the
Arbitration Acts 1950 and 1979
5.5 NOTICES
In addition to any other mode of service any notice required or
authorised to be given under this Lease shall be validly served if
served in accordance with Section 196 Law of Property Act 1925 as
amended by the Recorded Delivery Service Act 1962
5.6 DETERMINATION; DESTRUCTION
If the Premises shall be so destroyed or damaged by an Insured Risk as
to be unfit for occupation and use and have not been replaced in
accordance with the Landlord's obligation in clause 4.23 within a
period of two years and six months from the date of
19
such destruction or damage the Landlord or the Tenant may determine
this Lease on the giving of not less than one month's notice to the
other to expire no later than the date which is three years after the
date of such destruction or damage and upon the expiry of such notice
this Lease and the Term shall determine without prejudice to any rights
or remedies which may have accrued to either party in respect of any
breach of any of the covenants or obligations contained in this Lease
and in the event of such determination the Landlord having previously
claimed under the policy maintained by it pursuant to its covenant
contained in clause 4.2 which it hereby covenants to do any insurance
proceeds received by the Landlord under such policy and attributable to
the works carried out to the Premises by the Tenant either before or
after the date of this Lease at its cost shall be paid by the Landlord
to the Tenant within seven days of the expiry of such Notice or receipt
of such insurance monies by the Landlord if later
5.7 DETERMINATION; CONTRACTUAL
5.7.1 Subject to the provisions of this sub-clause the Tenant may
determine this Lease as at the tenth anniversary of the Term
Date
5.7.2 The Tenant shall give the Landlord written notice of its
intention to determine at least twelve months before the tenth
anniversary of the Term Date
5.7.3 If the Tenant serves any notice under this clause it shall
procure that vacant possession of the Premises will be
available on the tenth anniversary of the Term Date free of
occupation by and of any estate or interest vested in the
Tenant and any third party and the Lease shall not determine
as a result of any notice served by the Tenant if it is in
arrears of any of the rents reserved by this Lease at the
tenth anniversary of the Term Date
5.7.4 If a notice is duly served and if (to the extent applicable)
the requirements of clause 5.7.3 are first satisfied this
Lease and the Term shall determine on the tenth anniversary of
the Term Date without prejudice to any rights or remedies
which may have accrued to either party in respect of any
breach of any of the covenants or obligations contained in
this Lease including obligations under this clause which shall
continue to bind the parties
5.7.5 Time is of the essence of all dates and periods referred to in
this sub-clause
5.8 CONSTRUCTION (DESIGN AND MANAGEMENT) REGULATIONS 1994
5.8.1 In this sub-clause
(A) the expression "Regulations" means the Construction
(Design and Management) Regulations 1994 and any
expressions appearing in this sub-clause which are
defined in the Regulations have the same meaning
(B) the expression "relevant work" means any construction
work which is undertaken by the Tenant or by a person
claiming under it in pursuance of an obligation or a
right (whether or not requiring the Landlord's
consent) under this lease and for the purposes of
the Regulations the Tenant irrevocably acknowledges
that it and not the Landlord arranges the design
carrying out and construction of relevant work
20
notwithstanding that the Landlord may be entitled to
require the Tenant to do so
5.8.2 The Tenant irrevocably acknowledges that it will be and will
remain the only client in respect of any relevant work
5.8.3 Before any relevant work is commenced, the Tenant shall make a
declaration in accordance with Regulation 4(4) and shall
forthwith serve it on the Executive and a copy of it on the
Landlord
5.8.4 The Tenant shall comply with its obligations as client in
respect of any relevant work
5.8.5 The provisions of this sub-clause shall apply notwithstanding
that any consent issued by the Landlord in respect of any
relevant work does not refer to the said provisions or to the
Regulations
5.9 OVERRIDING LEASE
If at any time during the Term the Landlord shall grant a tenancy of
the reversion immediately expectant on the determination of this Lease
whether pursuant to Section 19 Landlord and Tenant (Covenants) Act 1995
or otherwise any covenant on the part of the Tenant to obtain the
consent of the Landlord under this Lease to any dealing shall be deemed
to include a further covenant also to obtain the consent of the lessor
under such tenancy to such dealing such consent not to be unreasonably
withheld or delayed where consent is expressed not to be unreasonably
withheld or delayed under this Lease
6. RENT REVIEW
6.1 The Market Rent as at any Review Date may be agreed in writing at any
time between the Landlord and the Tenant or (in the absence of
agreement) determined by the Arbitrator acting as an arbitrator
6.2 Any arbitration shall be conducted in accordance with the Arbitration
Acts 1950 and 1979
6.3 When the Market Rent as at any Review Date has been ascertained in
accordance with this Lease memoranda of the relevant Review Rent
payable from the Review Date shall be signed by or on behalf of the
Landlord and the Tenant (at their own cost) and annexed to this Lease
and its counterpart
6.4 If the Market Rent has not been ascertained by the relevant Review Date
the Tenant will:
6.4.1 continue to pay the Current Rent until such time (if any) as
the Tenant becomes liable by virtue of sub-clause 6.4.2 to pay
the Interim Rent
6.4.2 (if the Landlord shall at any time have notified the Tenant of
the Landlord's estimate of the relevant Review Rent at the
Review Date) pay the Interim Rent by equal quarterly
instalments at the times and in the manner as required for the
Current Rent the first payment or a proportionate part thereof
(being apportioned in the manner required by clause 2.1 from
the later of the relevant
21
Review Date and the date of notification of the estimate and
taking into account any sums paid by the Tenant in respect of
the Current Rent aforesaid for the apportioned period) to be
made on whichever is the later of the relevant Review Date and
the seventh day next after the date of notification of the
estimate
6.4.3 pay the Landlord within seven days after the agreement or
assessment of the Review Rent:-
(A) a sum equal to the amount (if any) by which the
aggregate of the equal quarterly instalments of the
Review Rent which would have been payable in respect
of the period commencing immediately before the
Review Date and ending immediately before the usual
quarter day next following the date of agreement or
assessment had the Review Rent been agreed or
assessed at the commencement of that period exceeds
the payments made by the Tenant under paragraphs (a)
and (b) of this clause 6.4 in respect of the same
period; and
(B) a sum equal to interest at 4% below the Interest Rate
calculated by dividing the sum payable under
sub-sub-clause (i) hereof by the number of usual
quarter days occurring in the period therein
mentioned and by assuming that such divided amounts
were severally payable on the successive quarter days
aforesaid and by aggregating the Interest on each
such amount from the quarter day on which it was
notionally payable until the date on which the sum
payable under sub-sub-clause (i) hereof is paid
6.5 If the Review Rent is agreed or assessed at an amount less than the
Interim Rent the Landlord shall pay the Tenant within seven days after
the Review Rent has been ascertained:-
6.5.1 a sum equal to the amount (if any) by which the payments made
by the Tenant under paragraphs 6.4.1 and 6.4.2 in respect of
the period commencing immediately before the Review Date and
ending immediately before the usual quarter day next following
the date of agreement or assessment exceeds the aggregate of
the equal quarterly instalments of the Review Rent which would
have been payable in respect of the same period had the Review
Rent been agreed or assessed at the commencement thereof; and
6.5.2 a sum equal to two percent above Interest calculated by
dividing the sum payable under paragraph 6.5.1 by the number
of usual quarter days occurring in the period therein
mentioned and by assuming that such divided amounts were
severally payable on the successive quarter days aforesaid and
by aggregating the sum so derived on each such amount from the
quarter day on which it was notionally payable until the date
on which the sum payable under paragraph 6.5.1 is paid
PROVIDED ALWAYS THAT if any sums due to the Tenant under this clause
6.5 shall not have been paid by the Landlord to the Tenant by the
quarter day next following the said date of agreement or assessment the
Tenant shall be allowed to deduct the amount so owing from the
quarterly payment of Rent then due
22
PROVIDED FURTHER THAT if the said quarterly payment is less than the
amount the Tenant is entitled to deduct the Tenant shall be entitled to
deduct the amount of the deficit from the next quarterly payment
7. SERVICE RENT
7.1 For the purposes of this Lease:-
7.1.1 "ACCOUNT DATE" means 30th June in every year of the Term or
such other date as the Landlord may from time to time nominate
7.1.2 "SERVICE PERIOD" means the period:-
(A) from the Lease Date to (and including) the first
Account Date; and thereafter
(B) between two consecutive Account Dates (excluding the
first and including the second); and thereafter
(C) commencing immediately after the last Account Date of
the Term and ending on the expiration of the Term
7.2 The Landlord shall as soon as convenient after each Account Date
prepare an account showing the Service Expenditure for the Service
Period ended on that Account Date and containing a fair summary of the
expenditure referred to and upon the account being certified by the
Landlord's managing agents it shall be conclusive evidence for the
purposes of this Lease of all matters of fact referred to except in
case of manifest error
7.3 The Tenant shall pay the Landlord on account of Service Rent the
Provisional Sum in relation to each Service Period the first payment
(being a proportionate sum in respect of the period commencing on the
Lease Date and ending immediately before the quarter day next after the
Lease Date) to be made on the Lease Date and the subsequent payments to
be made by equal instalments in advance on the usual quarter days
7.4 If the Service Rent for any Service Period:-
7.4.1 exceeds the Provisional Sum for that Service Period the excess
shall be due to the Landlord on demand; or
7.4.2 is less than the Provisional Sum for that Service Period the
overpayment shall be credited to the Tenant against subsequent
payments on account of Service Rent until the overpayment is
balanced
7.5 The Landlord may from time to time require a reasonable adjustment to
any of the percentages mentioned in the Particulars "N" "O" and "P" of
this Lease and to any other percentage which may have then been
adjusted hereunder if in its reasonable discretion the Landlord
considers that such an adjustment is warranted by a change in the
extent of the Estate (whether by reduction or increase) and the
Landlord or its agents shall serve the Tenant with written notice of
any such requirement and shall state therein the adjusted percentage
23
8. GUARANTEE AND GUARANTOR'S INDEMNITY
The Guarantor at the request of the Tenant and in consideration of the
grant of this lease covenants and agrees with the Landlord that:-
8.1 The rents reserved by this lease (whether or not ascertained as to
amount) will be duly paid and that all the Tenant's obligations
contained in it will be performed and observed in the manner and at the
times herein specified and that if there is any default in paying the
rents or in performing and observing the Tenant's obligations
(notwithstanding any time or indulgence granted by the Landlord to the
Tenant or compromise neglect or forbearance on the part of the Landlord
in enforcing the observance and performance of the Tenant's obligations
in this lease or any refusal by the Landlord to accept rents tendered
by or on behalf of the Tenant) the Guarantor will observe and perform
the obligations in respect of which the Tenant shall be in default and
will on demand and on a full indemnity basis pay to the Landlord an
amount equivalent to the rents or other amounts not paid and/or any
loss damage costs charges expenses or any other liability incurred or
suffered by the Landlord as a result of the default (and in the event
of non-payment shall pay Interest from the date of demand to the
Guarantor until the date of payment) and will otherwise indemnify and
hold harmless the Landlord against all actions claims costs damages
demands expenses losses and proceedings arising from or incurred by the
Landlord as a result of such non-performance or non-observance
8.2 If any liquidator or other person having power to do so disclaims this
lease or if it shall be forfeited or if the Tenant ceases to exist and
if the Landlord by written notice served within three months after the
date of disclaimer or forfeiture or the Landlord having actual
knowledge of the cesser of existence of the Tenant (the "Trigger
Event") requires the Guarantor to accept a lease of the Premises for a
term computed from the date of the Trigger Event to the date on which
the Term would have expired by effluxion of time and at the same rents
and subject to the same covenants stipulations conditions and
provisions (except that the Guarantor shall not be required to procure
that any other person is made party to that lease as guarantor) as are
reserved by and contained in this lease immediately before the Trigger
Event and with a coincidental Review Date (the said new lease and the
rights and liabilities thereunder to take effect as from the date of
such Trigger Event) the Guarantor shall forthwith accept such lease
accordingly and execute and deliver to the Landlord a counterpart of it
and indemnify the Landlord upon demand against the costs incurred on
the grant of the new lease PROVIDED THAT the Guarantor shall first do
all necessary acts and things to join in an application for and seek to
obtain without delay an order of the Court to the like effect as that
referred to in Particular U but so that the Landlord may elect at any
time prior to the making of the said Court Order that the said new
lease shall not contain a provision equivalent to Particular U
8.3 The liability of the Guarantor hereunder shall not be released reduced
affected or prejudiced by reason of:-
8.3.1 any variation or waiver of or addition to the terms of this
lease or any of them agreed between the Landlord and the
Tenant or
24
8.3.2 the surrender by the Tenant of part of the Premises (in which
event the liability of the Guarantor shall continue in
relation to the Tenant's obligations in respect of the part of
the Premises not so surrendered) or
8.3.3 any legal limitation immunity disability incapacity occurrence
of insolvency or the winding-up of the Tenant or
8.3.4 (without limitation to the foregoing) any other act or thing
by which (but for this provision) the Guarantor would have
been discharged or released (in each case in whole or in part)
from liability under this guarantee and indemnity
or any combination of any two or more of such matters
8.4 Without prejudice to the rights of the Landlord against the Tenant the
Guarantor shall be a principal obligor in respect of its obligations
under this clause and not merely a surety and accordingly the Guarantor
shall not be discharged nor shall its liability hereunder be affected
by any act or thing or means whatsoever by which its said liability
would not have been discharged if it had been a primary debtor
8.5 The Guarantor shall pay all reasonable charges (including reasonable
legal and other costs on a full indemnity basis) incurred by the
Landlord in relation to the Landlord's enforcement of this guarantee
and indemnity against the Guarantor or for enforcing payment by the
Guarantor of amounts indemnified by it hereunder
8.6 The Landlord may at its option enforce the terms of this guarantee and
indemnity against the Guarantor without having first enforced the
covenants and terms of this lease against the Tenant and also without
first having recourse to any other rights or security which the
Landlord may have obtained in relation to this lease
8.7 The Guarantor shall not be entitled to participate in any security held
by the Landlord in respect of the obligations of the Tenant under this
lease or to any right of subrogation in respect of any such security
until all the obligations owed to the Landlord by the Tenant and the
Guarantor hereunder have been fully and unconditionally fulfilled and
discharged
8.8 The Guarantor shall not claim in any liquidation bankruptcy composition
or scheme of arrangement in respect of the Tenant in competition with
the Landlord and if and to the extent that it receives the same shall
remit to (and until remission shall hold in trust for) the Landlord all
and any monies received from any liquidator trustee receiver or out of
any composition or arrangement or from any supervisor thereof until all
the obligations of the Tenant and the Guarantor hereunder owed to the
Landlord have been fully and unconditionally fulfilled and discharged
8.9 This guarantee and indemnity shall enure for the benefit of the
Landlord's successors in title under this lease without the necessity
for any assignment thereof
9. JURISDICTION
The Lease shall be governed by and construed in all respects with the
laws of England and the parties hereto submit to the non-exclusive
jurisdiction of the English Courts
25
IN WITNESS whereof this Deed has been executed as a deed by the parties hereto
the day and year first before written
THE FIRST SCHEDULE
PART I
(The Premises)
ALL THAT the Premises known as Malvern House aforesaid which are for the purpose
of identification edged red on Plan No. 1A Plan No. 1B and Plan No. 1C and are
also shown edged yellow on Plan No. 2
EXCEPT and RESERVED as mentioned in Part II of this schedule and TOGETHER WITH
the rights mentioned in Part III of this schedule
PART II
EXCEPT AND RESERVED to the Landlord (and all other persons authorised by the
Landlord or having like rights) the free and uninterrupted rights:-
(1) to the passage and running of water soil gas electricity telephone and
other services or supply to and from any Adjoining Premises through the
Conduits in or under the Premises
(2) for the Landlord to enter the Premises for the purposes mentioned in
this Lease and in particular:-
(i) the right at all reasonable times on at least 48 hours' prior
written notice and by prior appointment (except in the case of
emergency) to enter upon the Premises with or without
appliances and workmen and others as often as may be necessary
for all the purposes for which the Tenant covenants hereunder
to permit entry and for all purposes in connection with the
carrying out by the Landlord of the Services and for the
purposes of complying with any statutory requirements; and
(ii) the right at all reasonable times on at least 48 hours' prior
written notice and by prior appointment (except in case of
emergency) in order to examine and repair any Adjoining
Premises
(3) of light air support and protection now or after the date of this Lease
enjoyed by any Adjoining Premises
(4) at any time hereafter to alter rebuild make connections to or demolish
any building on any Adjoining Premises in such manner as the person
exercising the right shall think fit provided the same shall not
substantially obstruct affect or interfere with the amenity of or the
passage of light and air to the Premises or have a substantial effect
on the means of access to them
(5) to erect and retain (for a reasonable period only) scaffolding
notwithstanding that it may temporarily restrict but not prevent the
access to or enjoyment and use of the Premises
26
(6) the right to affix to the outside walls of the Building and retain
without interference a notice for the disposal or letting of the
Premises provided that light and access to the Premises is not
materially impaired
PROVIDED THAT if the Landlord exercises any of the above rights by carrying out
work or entering on the Premises it shall cause as little interference to the
Premises as possible and shall forthwith make good any damage caused to the
Premises unless the right has been exercised because of some breach by the
Tenant
PART III
TOGETHER WITH the benefit of the rights:-
(a) to the passage and running of water soil gas electricity telephone and
other services or supply to and from the Premises through the Conduits
in or under the Estate
(b) support and protection as is now enjoyed from any Adjoining Premises on
the Estate
(c) at convenient times and upon reasonable notice (except in emergency) to
enter any Adjoining Premises of the Landlord if it shall be necessary
to do so in order to view the state of condition of the land and
buildings described in Part I of this schedule and to make good all
damage and disturbance caused
(d) (in common with the Landlord and all other persons having a like right)
for the purposes of access to and egress from the Premises to pass and
repass at all times with or without vehicles over all roadways on the
Estate and to pass and repass on foot only over all pavements on the
Estate and for all purposes connected with the Permitted Use (but not
otherwise) PROVIDED THAT the roadway marked Beggars Bush Lane on Plan
No. 3 shall not be used for vehicular traffic other than in accordance
with the directions of the Highway Authority and PROVIDED FURTHER THAT
such use shall be subject to such restrictions (whether as to weight or
size of vehicles hours of use or otherwise and including but not
limited to physical restrictions) as the Highway Authority shall
require or as the Landlord shall reasonably require in the interests of
good estate management
(e) to use 292 car parking spaces (the positions whereof being shown edged
green on Plan No. 2 which position or positions may be temporarily
altered by the Landlord in cases of emergency only on notice to the
Tenant)
(f) the right to use the skip compound in such position on the Estate as
may from time to time be directed by the Landlord's managing agents
(g) the right for the Tenant's name to be placed on the Landlord's notice
board situated at the entrance to the Estate
(h) the right to use the area immediately adjacent to the goods entrance to
the Premises for the purposes only of loading and unloading
27
THE SECOND SCHEDULE
Details of Services
PART I
(Estate Services)
(1) Save to the extent that the same are expressly referred to in Parts II
and III of this Schedule the maintenance repair renewal redecoration
cleansing lighting and replenishment of the Estate and all fixtures and
fittings thereon and therein and all boundary walls and fences of the
Estate
(2) The maintenance repair cleansing and flood control of the River Gade
(3) The insurance of such parts of the Estate which shall be used in common
by the various tenants of the Estate and the provision of insurance of
any staff employed by the Landlord and by its agents or by any of them
in the management and maintenance thereof together with public
liability insurance
(4) The provision of and payment of all reasonable fees to managing agents
(including in that expression the services of the Landlord) and the
payment of all value added tax thereon
(5) The provision and maintenance of traffic control services and
landscaping within the Estate
(6) The provision of such staff (including caretakers and gardeners) for
the maintenance management and landscaping of the Estate including all
payments due under or in respect of related contracts of employment as
well as the provision of equipment materials and any other things as
may be requisite in relation thereto or for the purposes thereof
(7) Refuse collection and the cost thereof
(8) Paying all rates taxes assessments and outgoings from time to time
payable in respect of the Estate to the extent that such cost is not
wholly reimbursed to the Landlord by any third party
(9) Providing accommodation to house vehicles equipment and personnel
employed in providing services to the Estate
(10) The enforcement whenever and as often as the Landlord shall think fit
of any covenant or condition contained in any lease underlease licence
or agreement relating to the Estate or any part thereof where in the
reasonable opinion of the Landlord such enforcement would be in the
interests of good estate management
(11) The provision of other reasonable or requisite acts matters or things
which the Landlord may at any time and from time to time provide for or
in connection with the Estate
28
PART II
(ADDITIONAL SERVICES)
(1) Until such time (if any) that the same become highways maintainable at
the public expense the maintenance repair cleansing and keeping tidy of
the roads marked "Blackmoor Lane" and "Beggars Bush Lane" on Plan No. 3
and all associated landscaping (including without prejudice to the
generality of the foregoing the area between the said Beggars Bush Lane
and the Grand Union Canal) street lighting drainage and barriers
PROVIDED THAT the Landlord shall not be obliged to put or keep the said
Beggars Bush Lane in any better condition than it is now in
(2) The maintenance repair and keeping tidy of the service zone which is
shown hatched brown on Plan No. 3
PART III
(BLOCK SERVICES)
(1) The maintenance repair cleansing lighting and the keeping tidy of the
car parking spaces allocated to the Block from time to time and the
loading and unloading areas and skip compound within the Block
(2) The provision maintenance replacement planting cultivation and keeping
in good order and condition of all ornamental garden and landscaped
areas and all floral arboreal pictorial and artistic displays within
the Block
including:
(a) the employment of such independent contractors agents
consultants professional advisers and workmen as in the
reasonable and proper opinion of the Landlord may be requisite
in respect of the provision or carrying out of any service to
the Block referred to in paragraphs (1) and (2) above
(b) the reasonable and proper fees and expenses of the Landlord
and its managing agents in performing and carrying out the
services referred to in paragraphs (1) and (2) above
(c) the reasonable and proper salaries wages pensions and pension
contributions and other emoluments and the social security
contributions or other statutory levies of all personnel
directly employed by the Landlord or its managing agents on
duties at the Block in connection with those matters referred
to in paragraphs (1) and (2) above
(d) the reasonable provision and supply of any necessary uniforms
protective clothing tools appliances plant equipment and
materials as the Landlord may in its proper discretion deem
desirable or necessary for use in the provision and execution
of any service to the Block referred to in paragraphs (1) and
(2) above
29
PLAN NO. 1A
[GROUND FLOOR PLAN
CROXLEY CENTRE PHASE V,
BLOCK 2,
MALVERN HOUSE]
PLAN NO. 1B
[FIRST FLOOR PLAN
OF BLOCK 2,
MALVERN HOUSE]
PLAN NO. 1C
[SECOND FLOOR PLAN
CROXLEY CENTRE PHASE V,
BLOCK 2, MALVERN HOUSE]
PLAN NO. 2
[CROXLEY CENTER
LAYOUT DIAGRAM]
PLAN NO. 3
[CROXLEY CENTRE
THE PAVILLIONS
LAYOUT/DIAGRAM]
THE THIRD SCHEDULE
(REGULATIONS)
1. No loud speakers television sets radios or other devices shall be used
in a manner so as to be heard outside the Premises
2. No article object or thing of any kind shall be attached to supported
on or placed on any part or parts of the Conduits
[ORIGINAL]
SIGNED and DELIVERED as a deed )
by )
as the Attorney of THE STANDARD LIFE )
ASSURANCE COMPANY (in exercise )
of a Power of Attorney under its Seal dated )
22nd May 1995) in the presence of:- )
SIGNED and DELIVERED as a deed )
by CITY MORTGAGE SERVICING )
LIMITED in the presence of:- )
Director
Director/Secretary
SIGNED and DELIVERED as a deed )
by CITY MORTGAGE CORPORATION )
LIMITED in the presence of:- )
Director
Director/Secretary
30
DATED 1996
- --------------------------------------------------------------------------------
(1) THE STANDARD LIFE ASSURANCE COMPANY
and
(2) CITY MORTGAGE SERVICING LIMITED
and
(3) CITY MORTGAGE CORPORATION LIMITED
---------------------------------------------
DEED OF DEPOSIT
supplemental to a Lease
dated 1996 relating to
Malvern House
Croxley Business Park Watford
---------------------------------------------
Herbert Smith
Exchange House
Primrose Street
London EC2A 2HS
Tel: 0171 374 8000
Fax: 0171 496 0043
Ref: 65/30580257
DE00000000061295
CONTENTS
CLAUSE HEADING PAGE
- ------ ------- ----
1. DEFINITIONS AND INTERPRETATION 1
Default 1
Deposit Account 1
Deposit Balance 2
Deposit Sum 2
Expiry of the Term 2
Guarantor 2
Initial Deposit 2
Interest 2
Landlord 2
Lease 3
Premises 3
Tenant 3
2. INITIAL DEPOSIT PAYMENT 3
3. DURATION OF DEPOSIT ARRANGEMENTS 4
4. STATEMENT OF DEPOSIT BALANCE 7
5. MAINTENANCE OF DEPOSIT SUN 7
6. WITHDRAWALS 8
7. INTEREST 8
8. EXPENSES 10
9. ASSIGNMENT 10
10. SERVICE OF NOTICES 11
11. JURISDICTION 12
12. DECLARATIONS 12
13. GUARANTOR'S COVENANTS 13
THIS DEED made the day of One thousand nine hundred and
ninety-six BETWEEN the Landlord (1) and the Tenant (2) and the Guarantor (3)
supplemental to the Lease
WITNESSES as follows:-
1. DEFINITIONS AND INTERPRETATION
(1) In this deed the following words and expressions shall unless
the context otherwise requires have the following meanings:
"DEFAULT" means any failure by the Tenant to pay
(whether or not any formal demand has
been made) the whole or any part of the
rents reserved by the Lease or any money
(including interest) payable pursuant to
the Lease or any expense incurred by the
Landlord or due to the Landlord in
consequence of any failure by the Tenant
to observe and perform the covenants and
obligations of and the conditions
binding the Tenant contained in the
Lease
"DEPOSIT ACCOUNT" means an interest bearing account opened
in the name of the Landlord with such
clearing bank as the Landlord from time
to time in its absolute discretion may
select wherein the Deposit Sum is for
the time being lodged in accordance with
the terms of this deed PROVIDED THAT on
any disposal of the reversion expectant
upon the determination of the Term by
The Standard Life Assurance Company any
successor in title shall ensure that the
Deposit Sum is held in an interest
bearing account in the joint
1
names of the Landlord and the Tenant
with a clearing bank
"DEPOSIT BALANCE" means the amount from time to time
standing to the credit of the Deposit
Account (being the property of the
Landlord)
"DEPOSIT SUM" means an amount equivalent to six
months' Principal Rent from time to time
reserved and payable under the Lease and
an amount equivalent to Value Added Tax
thereon save that for the first five
years of the Term the Deposit Sum is the
Initial Deposit
"EXPIRY OF THE TERM" means the expiry or sooner contractual
determination of the Term otherwise than
by termination of the Term by forfeiture
or disclaimer
"GUARANTOR" means City Mortgage Corporation Limited
whose registered office is at 19
Cavendish Square London W1A 2AW (Co.
Regn. No. 3043776)
"INITIAL DEPOSIT" means [ ] Pounds [ ]
and an amount equivalent to Value Added
Tax thereon being a total of [
]
"INTEREST" means all interest credited to the
Deposit Account from time to time
"LANDLORD" means The Standard Life Assurance
Company whose office is at 3 George
Street Edinburgh EH2 2XZ
2
"LEASE" means a lease dated 1996
between (1) the Landlord (2) the Tenant
and (3) the Guarantor
"PREMISES" means the premises demised by the Lease
"TENANT" means City Mortgage Servicing Limited
whose registered office is at 19
Cavendish Square London W1A 2AW (Co.
Regn. No. 3043775)
(2) The expressions "Principal Rent" "Term" "Term Date" and "Review
Date" shall have the meanings ascribed to them by the Lease
(3) References in this deed to any clause are references to the
relevant clause in this deed and clause headings shall not
affect the Construction of this deed
2. INITIAL DEPOSIT PAYMENT
(1) In consideration of the grant of the Lease the Tenant has paid
the Initial Deposit to the Landlord and the Landlord shall
forthwith pay the Initial Deposit into the Deposit Account
(2) The Landlord may from time to time until the Deposit Balance
shall be repaid to the Tenant select the Deposit Account wherein
the Deposit Sum shall be lodged but in doing so shall have
regard to the interests of the parties under this deed and shall
notify the Tenant in writing of any change of Deposit Account
from time to time
(3) The Tenant Warrants to the Landlord that the Initial Deposit is
free from any charge or encumbrance
3
3. DURATION OF DEPOSIT ARRANGEMENTS
(1) The Deposit Balance shall be held by the Landlord (subject to
the Landlord's prior right to withdraw and retain all or any
part of the Deposit Balance in or towards all liabilities of the
Tenant from time to time outstanding in respect of a Default by
the Tenant) until the giving of written confirmation by the
Landlord to the Tenant that Satisfactory Accounts as defined in
clause 3(2) have been delivered to the Landlord in respect of
the Tenant PROVIDED THAT the Landlord will not unreasonably
withheld or delay the giving of such written confirmation
(2) (a) "Satisfactory Accounts" means accounts in respect of the
Tenant which have been audited by a person firm or company
satisfactory to the Landlord which show both that:-
(i) for the three immediately preceding accounting
reference periods the post tax profits of the Tenant
in respect of each such accounting reference period
exceeded a sum calculated by multiplying by three the
amount of Principal Rent reserved by the Lease
payable at the date upon which such accounts are
delivered to the Landlord (provided that in any case
the Principal Rent for such purpose shall not be less
than that reserved under the Lease for the period
commencing on the second anniversary of the Term Date
and ending immediately before the Review Date); and
(ii) the aggregate of the share capital and reserves and
the retained profit as stated in such accounts for
the immediately preceding accounting reference period
exceeds a sum calculated by multiplying by three the
amount of Principal Rent reserved by the Lease
payable at the date upon which such accounts are
delivered to the Landlord (provided that in any case
the Principal Rent for such purpose shall not be less
than that reserved under the Lease for the
4
period commencing on the second anniversary of the
Term Date and ending immediately before the Review
Date)
(b) The items referred to in clauses 3(2)(a)(i) and (ii)
shall be together referred to as the "Tenant's Net
Assets"
(c) If any of the accounting reference periods of the
Tenant referred to in clauses 3(2)(a)(i) and (ii)
represent a period of time which is either longer or
shorter than a period of twelve calendar months the
tests referred to in clauses 3(2)(a)(i) and (ii)
shall be applied to:-
(i) the Tenant's Net Assets (as required by the
relevant test) as shown in the accounts for any
such accounting reference period in relation to
the aggregate Principal Rent reserved by the
Lease payable in respect of such accounting
reference period; and
(ii) such number of the Tenant's accounting
reference periods as is equal to or exceeds a
period of three years
(3) If the event referred to in clause 3(1) does not occur prior to
the Expiry of the Term the Deposit Balance shall be held by the
Landlord (on the terms hereof) until the earliest of the
following:-
(a) a lawful assignment of the Lease by the Tenant;
(b) fourteen days after the Expiry of the Term; and
(c) six months after the disclaimer or forfeiture of the Lease
(4) The Deposit Account shall be closed and the Deposit Balance
shall be paid to the Tenant after first being applied in
satisfaction of all costs or losses or claims which have been
5
4. STATEMENT OF DEPOSIT BALANCE
The Landlord shall on repaying the Deposit Balance to the Tenant under
clause 3(5) supply the Tenant with a statement showing all deposits and
withdrawals made by the Landlord and all Interest accrued and paid over to
the Tenant in accordance with the terms of this deed
5. MAINTENANCE OF DEPOSIT SUM
(1) If at any time the Deposit Balance shall be less than the
Deposit Sum either as a result of:-
(a) a withdrawal pursuant to clauses 6(1) or 6(2); or
(b) any review of the Principal Rent reserved by the Lease
the Tenant shall pay the difference to the Landlord within seven
days of notice from the Landlord to the Tenant to that effect
(but subject to clause 5(3)) and notwithstanding any dispute of
any kind whatsoever as to any withdrawal from the Deposit
Account by the Landlord
(2) If and so long as the Deposit Balance is less than the Deposit
Sum Interest accrued on the Deposit Balance shall not be paid to
the Tenant pursuant to clause 7 but shall be added to the
Deposit Balance until such time as the Deposit Balance equals
the Deposit Sum howsoever that may be effected
(3) If an increase in the Deposit Balance is required solely as the
result of a review of the Principal Rent reserved by the Lease
the Landlord shall not be obliged to give notice to the Tenant
requiring an increase in the Deposit Balance and the Tenant
shall forthwith upon the assessment of the reviewed rent
discharge its obligations in accordance with this clause
7
6. WITHDRAWALS
(1) If at any time for any reason whatsoever the Tenant fails to pay
the whole or any part of the Principal Rent or other rents or
any other sum payable in accordance with the terms of the Lease
the Landlord may make withdrawals from the Deposit Account equal
to the rent or (as the case may be) other sums due including any
interest and Value Added Tax thereon pursuant to provisions in
that behalf contained in the Lease which the Tenant shall have
failed to pay; and
(2) If the Tenant shall be in Default of any of the covenants and
obligations of and the conditions binding the Tenant contained
in the Lease (other than a Default as described in clause 6(1))
and such breach shall not have been remedied by the earliest
of:-
(a) a lawful assignment of the Lease by the Tenant
(b) fourteen days after notice to the Tenant of such breach; and
(c) the Expiry of the Term; and
(d) the disclaimer or forfeiture of the Lease
the Landlord may make withdrawals from the Deposit Account of
such sums as will meet or (if the Deposit Balance is
insufficient) go towards meeting the reasonable and proper cost
to or loss suffered by the Landlord in respect of the Default
7. INTEREST
(1) Subject to clause 5(2) all Interest shall beneficially accrue to
the Tenant and (in so far as it is necessary so to do for such
accrual) the Landlord hereby assigns to the Tenant but subject
always to the provisions of this deed the right to receive the
Interest
8
(2) The Tenant as beneficial owner of the Interest charges the
assignment created by clause 7(1):-
(a) until such time as the Deposit Account shall be closed in
accordance with clause 3; and
(b) as security for money payable to the Landlord in the event
of Default
(3) The Tenant shall make a return in respect of the Interest in
full to the Inland Revenue and the tax assessed thereon shall be
paid by the Tenant accordingly
(4) Subject to clause 5(2) the Interest (less any amounts retained
by the Landlord pursuant to clause 8) shall be released from the
Deposit Account half yearly to the Tenant within twenty-eight
days of the Interest being credited to the Deposit Account
PROVIDED ALWAYS THAT:-
(a) no Interest shall be released unless and until the Landlord
has received the quarter's rent due immediately prior to the
date of the Interest being credited to the Deposit Account
or if there is any Default by the Tenant or the Tenant is
otherwise in breach of any of the terms of the Lease; and
(b) Interest shall be released to the Tenant only to the extent
that if credited to the Deposit Account the Interest would
cause the Deposit Balance to exceed the Deposit Sum; and
(c) nothing in this deed shall preclude the Landlord from making
a return to the Inland Revenue of the name and address of
and the amount of the Interest beneficially accruing to the
Tenant; and
9
(d) if and so long as the provisions of section 349(3)(a) of the
Income and Corporation Taxes Act 1988 or any statutory
modification or re-enactment thereof applies to the
liability to account for tax on any Interest accruing to the
Deposit Account the Landlord shall deduct the relevant tax
before accounting for the Interest in accordance with the
provisions of this deed
8. EXPENSES
All reasonable expenses incurred by the Landlord in maintaining the
Deposit Account including (without prejudice to the generality of the
foregoing):-
(1) any tax assessable on the Tenant but required to be paid by the
Landlord as the person in receipt of the Interest; and
(2) any tax required to be deducted by the Landlord before any
account is made for Interest
shall be paid (or indemnified as the case may be) by the Tenant to the
Landlord on demand and if not so paid within fourteen days of such demand
may be withdrawn by the Landlord from the Deposit Account any such
withdrawal being first set against any accrued Interest and to the extent
that the Interest is insufficient to meet the said expenses thereafter set
against the Deposit Balance
9. ASSIGNMENT
(1) On any disposal of the reversion expectant upon the
determination of the Term the Landlord may pay the Deposit
Balance to the successor in title PROVIDED THAT on any dealing
or intended dealing with the reversion expectant on the
determination of the Term the Landlord shall first transfer by
way of a novation its rights and obligations pursuant to this
deed to its successor in title ("the New Landlord") by the
execution and delivery by each of the Landlord the New landlord
the Tenant and the Guarantor of a deed in the form set out in
10
the Schedule hereto ("the Substitution Deed") such delivery to
be conditional only upon the completion of the relevant dealing
(2) The procedure set out in Clause 9(1) shall be implemented on
each and every dealing by the Landlord with the reversion
expectant on the determination of the Term
(3) Any person to whom the Landlord pays the Deposit Balance
pursuant to clause 9(1) shall have power to give a good receipt
for payment thereof and such receipt shall be deemed to have
been given by or on behalf of the Tenant
10. SERVICE OF NOTICES
(1) In addition to any other mode of service any notices to be
served under this deed shall be validly served if served in
accordance with section 196 Law of Property Act 1925 as amended
by the Recorded Delivery Service Act 1962 or (in the case of any
notice to be served on the Tenant) by sending it to the Tenant
at the Premises
(2) If the Tenant the Guarantor or any other guarantor comprises
more than one person it shall be sufficient for all purposes if
notice is served on one of them but a notice duly served on the
Tenant will not need to be served on the Guarantor or any other
guarantor
11. JURISDICTION
This deed shall be governed by and construed in all respects in accordance
with the law of England and the Tenant and Guarantor submit to the
exclusive jurisdiction of the English Courts and irrevocably agree that
any process may be served on them by leaving a copy of the relevant
document at the Premises and each party undertakes to notify the other in
advance of any change from time to time of such address for service and to
maintain an appropriate address at all times
11
12. DECLARATIONS
It is hereby agreed and declared that:
(1) the provisions of this deed shall in no way fetter the exercise
by the Landlord of any of its rights duties powers or
discretions as landlord under the Lease
(2) The liability of neither the Tenant nor the Guarantor pursuant
to the Lease from time to time shall not be limited to the
Deposit Balance
(3) The Tenant and Guarantor by way of security for the proper
performance of the Tenant's obligations contained in this deed
hereby appoint the Landlord or delegates of the Landlord to act
as their respective attorney in their name and on their behalf
to take any action in the name of the Tenant or the Guarantor
and to sign or execute seal and deliver every document the
completion of which is or may be expedient to ensure the
performance of the Tenant's or (as the case may be) the
Guarantor's obligations hereunder and each further agrees to
ratify anything that shall be reasonably and properly done by
the Landlord conformably with the purport of this power and
further declares this power to be Irrevocable
(4) The provisions of this deed shall have no effect upon value for
the purposes of any review of the rent first reserved by the
Lease
13. GUARANTOR'S COVENANTS
The Guarantor covenants with the Landlord that payments required to be
made by this deed (whether or not yet ascertained as to amount) will be
duly paid and that all the Tenant's obligations contained in this deed
will be performed and observed and that if there is any default in making
such payments or in performing or observing the obligations
(notwithstanding any forbearance or time or compromise afforded by the
12
Landlord) the Guarantor will remedy the default and make good to the
Landlord all losses costs damages and expenses occasioned by it
IN WITNESS whereof this deed has been executed by the parties hereto and is
intended to be and is hereby delivered on the day and year first above
written
THE SCHEDULE
FORM OF THE SUBSTITUTION DEED
THIS DEED made the day of 199
BETWEEN
the Landlord (1)
the New Landlord (2)
the Tenant (3)
the Guarantor (4)
SUPPLEMENTAL TO:-
(1) the Lease
(2) the Rent Deposit Deed
WITNESSETH as follows:-
1. DEFINITIONS AND INTERPRETATION
(1) In this Substitution Deed the expression "Rent Deposit Deed"
shall mean a deed dated [ ] 1996 and made between (1) the
Landlord (2) the Tenant and (3) the Guarantor
13
(2) "Guarantor" means City Mortgage Corporation Limited whose
registered office is at 19 Cavendish Square London W1A 2AW (Co.
Regn. No. 3043776)
(3) "Landlord" means The Standard Life Assurance Company whose head
office is at 3 George Street Edinburgh EH2 2XZ
(4) "New Landlord" means [ ] whose
registered office [address] is at [
] (Co. Regn. No. )
(5) "Tenant" means City Mortgage Services Limited whose registered
office is at 19 Cavendish Square London W1A 2AW (Co. Regn. No.
3043775)
(6) Save where inconsistent with the express provisions of this
Substitution Deed words and expressions used in the Rent Deposit
Deed shall have the same meanings when used in this Substitution
Deed
(7) The provisions of Clause 11 of the Rent Deposit Deed shall apply
to this Substitution Deed
2. NOVATION
(1) The New Landlord covenants with the Landlord and as a separate
covenant with the Tenant that from the date of this Substitution
Deed it will perform and observe all the covenants and
obligations of the Landlord contained in the Rent Deposit Deed
(2) From the date of this Substitution Deed the Tenant and the
Guarantor shall accept the New Landlord as a party to the Rent
Deposit Deed in substitution for the Landlord with respect to
all those rights covenants and obligations which by the terms of
this Substitution Deed will be assumed by the New Landlord from
the date of this Substitution Deed
14
3. RELEASE
The Tenant and the Guarantor hereby release the Landlord from all
covenants and obligations undertaken by the Landlord in the Rent Deposit
Deed and all liability in respect thereof
IN WITNESS whereof this Deed has been executed by the parties hereto and is
intended to be and is hereby delivered on the date first above written
THE COMMON SEAL of THE NEW LANDLORD)
was hereunto affixed in the )
presence of:- )
Director
Secretary
THE COMMON SEAL of THE TENANT )
was hereunto affixed in the )
presence of:- )
Director
Secretary
15
THE COMMON SEAL of THE GUARANTOR)
was hereunto affixed in the )
presence of:- )
Director
Secretary
THE COMMON SEAL of THE LANDLORD )
was hereunto affixed in the )
presence of:- )
Director
Secretary
16
********************************
SIGNED and DELIVERED as a Deed )
by )
as the Attorney of THE STANDARD )
LIFE ASSURANCE COMPANY (in exercise)
of a Power of Attorney under its )
Seal dated 22nd May 1995) in the )
presence of:- )
17
SPECIFICATION OF WORKS, GROUND, FIRST AND SECOND FLOORS
MALVERN HOUSE
CROXLEY BUSINESS PARK
WATFORD
CATEGORY A WORKS
OFFICE AREAS
Wall Finishes
1 Blockwork to perimeter walls and internal columns to be plastered or dry
lined and also to include post formed laminated window boards.
2 Core walls to offices to be plastered or dry lined.
3 Finishes to perimeter walls and core walls to be 1 mist coat, 2 full
coats vinyl silk.
4 M D F skirtings to perimeter walls and core walls finished with 1 primer
coat, 2 undercoat and 1 gloss coat to finish.
Floor Finishes
5 "Propafloor Spacedeck Medium TR" or equal approved raised floor with
600mm x 600mm panels and service outlet boxes on pedestals at 600mm c/c
250mm gross depth. Raised floor to be erected in strict accordance with
the manufacturers instructions. Raised floor to be in accordance with PSA
MOB PF2 PS/SPU in all respects. Carpet tiles to be 600mm x 600mm
Miliken Colours Affinity carpet tiles or equal approved.
Carpet tiles to be fixed strictly in accordance with manufacturers
recommendation. Allow for cutting 600 No. holes to raised floor for
floor boxes including fitting carpets.
Ceiling
6 Provide Unistrut secondary grid to high pitched roof areas to provide
support framework for ceiling ductwork and suspended ductwork.
7 Suspended ceiling to be Armstrong Ultima (Tegular) mineral fibre board or
equal approved. White (with light texture) 600mm x 600mm. Exposed grid
system by Armstrong vivid white on galvanised suspension wires. Edge
trim vivid white 32mm x 40mm Armstrong or equal approved.
Tea Station
8 Landlord to provide 1 No. tea station per wing per floor (8 in total)
comprising a local electric water heater, a ???????? Flex PA37 sink, taps
and drainers by Leisure and local extract duct. Location of the tea
station to be finalised with the occupier to have regard for the existing
drainage runs and partitions. Fittings to include 2 No. 13 Amp RCD switch
socket outlets. 1 drainage connection to suit equipment. Hot and cold
mains water. (Hot water from the local electric heater) cold water from
mains system. Ceramic tile splash back to wall above work top, 3 three
courses high, white grout applied to tile joints and a polysulphide
mastic seal between tile and worktop abutments. Provide 3 No. 600 x 300 x
900 wall cupboards and 1 No. 600 x 300 x 600 cupboard per tea station.
GENERAL ITEMS
9 Fire barriers to be provided to underside of raised floor and voids above
suspended ceilings in accordance with Building Regulations to suit open
plan office layout, fire barriers to be Rockwool quilt or similar
approved by Landlord to floor void and Rockwool foil faced cavity carrier
or equal approved, above suspended ceiling taken at 20 metre centres.
10 Provisional sum of pound sterling 1000 allowed for sundry items such as
touching up paintwork to exposed pipework.
11 Prepare, prime and apply 1 No. primer 2 undercoats and 1 No. gloss
coat of oil based paint to existing painted door sets.
SERVICES
12 Services category A works to be as below. It is assumed that
buildersworks items relating to the services elements are included
within the services Specifications.
12.1 MECHANICAL SERVICES
12.1.1 L.P.H.W. HEATING INSTALLATION:
A natural gas supply shall be extended from the ground floor
plantroom to the roof top boiler room to serve 4 No. modular
gas fired boilers.
The boiler plant shall service VAV zone reheaters around the
perimeter of the building arranged to offset the fabric loss
within the offices. The boiler plant shall also service the
Air Handling Unit heating coils, reheat coils, entrance area
underfloor heating and D.H.W.S. heating requirements.
12.1.2 AIR CONDITIONING INSTALLATION:
A packaged air cooled water chiller shall provide chilled
water to serve the cooling coils within each of the air
handling stations installed in the local plantrooms. Each
floor of each wing of office accommodation shall thereby be
provided with its own independent air handling unit.
The air handling units shall serve a ductwork distribution
system to the variable air volume terminals throughout the
office areas. The VAV terminals located around the perimeter
of the office areas shall be fitted with terminal reheaters
and all VAV terminals shall be fitted with direct digital
control units connected to the B.M.S. System. The return air
shall be extracted through the luminaires, into the office
ceiling void and back to the air handling unit.
Fresh Air and exhaust requirements shall be via a vertical
louvre serving each plantroom.
Each air handling unit shall incorporate a heating coil for
the morning warm up cycle.
12.1.3 AUTOMATIC CONTROLS INSTALLATION:
A fully automated control system shall serve the Mechanical
services installation. The control panels serving the
mechanical services shall be located in each of the ground
floor wing plantrooms and in the rooftop plantroom. A
building management system shall be provided in order to
control and monitor the installation efficiently. A remote
alarm facility shall be provided at the main reception desk.
Provision shall also be allowed for the capability of
monitoring the service via the central control BMS computer
located in the Business Park Management Office should this
facility be required in the future.
12.1.4 GENERAL DESIGN PARAMETERS:
The L.P.H.W. hearing system will be designed to maintain a
temperature of 21 degrees C in the toilets and lobbies when
the external temperature is -4 degrees C assuming a minimum
number of air changes to the general areas and 6 air changes
per hour to the toilets.
The Central Reception area will be designed to maintain a
temperature of 21 degrees C when the external temperature
is -4 degrees C.
The office areas to the Ground, First and Second floors will
be provided with comfort cooling by way of variable air
volume system and integrated with a I.P.H.W. perimeter
heating system designed on the following basis:
12.1.5 OUTSIDE SUMMER DESIGN TEMPERATURE:
19 degrees C wet bulb: 27 degrees C dry bulb
12.1.6 OUTSIDE WINTER DESIGN TEMPERATURE:
-4 degrees C 100% relative humidity
12.1.7 SUMMER MAXIMUM INTERNAL TEMPERATURE:
22 degrees C + /-2 degrees C
12.1.8 WINTER MINIMUM INTERNAL TEMPERATURE:
21 degrees C + /-2 degrees C
12.1.9 PEOPLE DENSITY IN COOLING CALCULATIONS:
One person per 10m(2) (Office Areas)
12.1.10 FRESH AIR QUANTITY PER PERSON HAS BEEN ALLOWED:
1.3 litres per second per m(2) (Office Areas)
12.1.11 SMALL POWER CAPACITY ALLOWED IN COOLING CALCULATIONS:
20 watts per m(2) (Office Areas)
The whole of the lighting load will be allowed in cooling
calculations within office areas.
The solar glass has been utilised in cooling calculations,
without the provision for blinds.
12.1.12 MAXIMUM SIZE OF PERIMETER CONTROL ZONE BEING UTILISED:
6.0 metres wide x 6.0 metres deep
12.1.13 MAXIMUM SIZE OF INTERNAL CONTROL ZONE BEING UTILISED:
Up to a maximum of 67m(2)
12.1.14 GENERAL
The installation has been designed in accordance with the
relevant by-laws, the requirements of the relevant Statutory
Authorities, Building Regulations, Colne Valley Water
Authority by-laws, British Standards and codes of practice
of the Chartered Institute of Building Services guides.
12.2 ELECTRICAL SERVICES:
12.2.1 MAIN SWITCHBOARD AND CABLING:
The Eastern Electricity Board shall provide a high voltage
supply to the landlords transformer located outside the main
building. A low voltage supply will be taken from this point
via underground ducts to the switchroom.
The main switchboard will be located in this switchroom and
contained the main switch for the building, landlord
supplies together with 8 No. tenant supplies and meters.
All sub-main cabling shall be carried out using multicore
XLPE/SWE/PVC cables, clipped to cable tray or building
structure.
Distribution boards shall be provided in each suite for
tenants lighting and power systems.
12.2.2 GENERAL POWER INSTALLATION:
General purpose power outlets shall be provided for both the
landlord and tenant areas. The landlords installation shall
comprise of 15A switched socket outlets in the entrance
areas, plantrooms and stairwells.
Each office floor shall have 13 Amp switched socket outlets
installed in flush floor 3 compartment service boxes
supplied from local, distribution boards. These outlet boxes
have a density of 1 per 10m(2) and have the facility to
receive data and telecommunications outlets and are served
from an underfloor distribution system which allows boxes to
be relocated as required. The underfloor distribution system
shall comprise of either 75 x 75mm galvanised cable trunking
with twin socket outlets at 3m intervals or a proprietory
underfloor busbar system with a 4 bar configuration.
12.2.3 PRIMARY LIGHTING INSTALLATION:
The primary lighting installation shall comprise of both
functional and decorative luminaires.
The entrance area shall be illuminated by low voltage
tungsten halogen luminaires recessed in the ceiling and
controlled via a scene setting dimmer located in the
switchroom.
Suite lighting will be provided by Modular recessed 600 x
600mm fluorescent luminaires complete with High Frequency
control gear and LG3 Category 2 low luminance louvres. The
illumination level shall be 500 lux (average) at 0.9m above
floor level.
12.2.4 EMERGENCY LIGHTING
The emergency lighting installation shall comprise of a
combination of self-contained luminaires augmented by
"primary" luminaires fitted with inverter packs to conform
with the Fire Officer's recommendations.
12.2.5 CONTAINMENT SYSTEMS FOR COMMUNICATIONS SYSTEMS:
Cable tray will be provided in the core and tenant areas to
contain the tenants data and telecommunications cabling
between suites or between suites and the telecommunications
room.
The 2 No. 225mm cable trays in the suites have been arranged
to provide wiring to floor boxes on the density of 1 per
10m(2).
12.2.6 FIRE ALARMS:
A zoned fire alarm system will be provided to serve the
entire building. The main panel will be situated within the
main control desk at reception.
A zone connection box will be provided at each tenant area
to facilitate extensions of the system, using approved
equipment by the tenant to suit individual requirements to
conform with the Fire Officers recommendations.
The system shall comprise of manual alarm controls with
automatic smoke and heat detectors.
12.3 GENERAL
The M & E Services installation systems shall be modular in design to
allow the building to be multi-let up to a number of 8 suites plus the
Landlords areas.
CONTRACTOR
THIS DEED is made the day of 199
BETWEEN:-
1. MORGAN LOVELL WEST LIMITED of Ascot House Doncastle Road Bracknell
Berkshire RG12 8PE (the "Contractor")
2. STANDARD LIFE ASSURANCE COMPANY incorporated by Act of Parliament and
having its head office at 3 George Street, Edinburgh, EH2 2XZ (the
"Landlord" which expression shall include its successors in title and
assigns and those deriving title under it or them)
WHEREAS:-
(A) CITY MORTGAGE SERVICING LIMITED whose registered office is at 19
Cavendish Square London W1A 2AW ("the Client" which expression shall
include its successors in title and assigns and those deriving title
under it or them) is carrying out certain works (more particularly
described in the Building Contract) (the "Project") at Malvern House
Croxley Business Park (the "Premises").
(B) The Landlord has entered into an agreement for lease whereby the
Landlord has inter alia agreed to grant and the Client has agreed to
take a lease of the Premises subject to satisfactory completion of the
Project.
(C) The Client is the employer under a building contract dated [ ]
(the "Building Contract") entered into with the Contractor for the
carrying out and completion of the Project (which expression shall
include any additional works carried out by the Contractor under the
Building Contract in connection with any modifications or variations
made thereunder).
NOW THIS DEED WITNESSETH AS FOLLOWS:-
1. OBLIGATIONS
1
1. The Contractor warrants and undertake to the Landlord that -
1.1 the Contractor has duly carried out and completed and/or will duly
carry out and complete the Project in accordance with the Building
Contract and that it has complied and/or will comply in all respects
with all its obligations under the Building Contract;
1.2 to the extent that the Contractor has selected and/or will select
materials and/or goods for the Project they are or will be of good
quality;
1.3 insofar as the Contractor is required by the terms of the Building
Contract to provide information to the Client and/or any consultant of
the Client such information shall be supplied properly and in a timely
manner;
1.4 insofar as the Contractor is required pursuant to the Building Contract
to adopt or to undertake or to accept responsibility for works of
design in connection with the Project the Contractor has and will
continue to exercise all the reasonable skill and care to be expected
of a properly qualified and competent contractor experienced in
adopting undertaking or accepting responsibility for such works of
design in projects of a similar sire type scope and complexity to the
Project;
1.5 the Project satisfies or will when completed satisfy the specification
or requirement included in or referred to in the Building Contract;
1.6 none of the following have been or shalt be specified by the Contractor
for use in the Project and that the Contractor has not and shall not
authorise cause to be used use or suffer the use in or about the
Project of any of the following:
1.6.1 high alumina cement in structural elements;
1.6.2 wood wool slabs in permanent formwork to concrete or in structural
elements;
1.6.3 calcium chloride in admixtures for use in reinforced concrete;
2
1.6.4 calcium silicate bricks or tiles;
1.6.5 asbestos or asbestos-containing products;
1.6.6 aggregates for use in reinforced concrete which do not comply with
British Standard Specification 882:1983 and aggregates for use in
concrete which do not comply with the provisions of British
Standard Specification 8110; 1985;
1.6.7 lead or any materials containing lead which may be ingested
inhaled or absorbed except where copper alloy fittings containing
lead are specifically required in drinking water pipework by any
relevant statutory requirement;
1.6.8 urea formaldehyde foam or materials which may release formaldehyde
in quantities which may be hazardous with reference to the limits
set at the date hereof by the Health and Safety Executive;
1.6.9 slipbricks;
1.6.10 vermiculite plaster;
1.6.11 polyisocyanurate foam;
1.6.12 extruded polystyrene other than low ozone depletion materials;
1.6.13 materials which are generally composed of mineral fibres either
man-made or naturally occurring which have a diameter of 3 microns
or less and a length of 200 microns or less or which contain any
fibres not sealed or otherwise stabilised to ensure that fibre
migration is prevented;
1.6.14 other substances recognised by the Building Research Establishment
known to be deleterious at the time of their specification; and
3
1.6.15 other substances not in accordance with British Standards or Codes
of Practice where such exist or such other equivalent standards or
requirements at the time of specification.
2. DOCUMENTS
2.1 The Contractor hereby grants to the Landlord an irrevocable
royalty-free licence to copy and use all technical information drawings
models specifications schedules detail plans programs calculations
working papers or other documents work or things whatsoever provided or
to be provided by the Contractor in connection with the Project (the
"Documents") for all purposes related to the Project including but
without limitation the construction completion reconstruction
alteration extension maintenance letting promotion advertisement
reinstatement use and repair of the Project or of the Landlord's
interest in it provided that for the avoidance of doubt the copyright
in the Documents shall remain in the Contractor. The Landlord shall be
entitled to grant sub-licences and the Landlord's licence and such
sub-licences shall be transferable to others PROVIDED ALWAYS that the
Contractor shall have no liability in event the Documents are used for
a purpose other than that for which they were originally prepared.
2.2 The Contractor hereby irrevocably waives any rights it may have
pursuant to Chapter IV (Moral Rights) of Part I of the Copyright
Designs and Patents Act 1988 in relation to the Project or any part
thereof or to any Documents and shall obtain a written waiver from its
employees from time to time of any rights they have in respect of the
same provided that the Contractor shall with the Landlord's consent
such consent not to be unreasonably withheld or delayed be entitled to
use the Documents in connection with the publication of its work and
the marketing of its services.
2.3 The Contractor shall provide the Landlord at its request and upon
reimbursement of the reasonable costs of producing the same such copies
of all or any of the Documents as are required by the Landlord.
3. INSURANCE
4
3.1 The Contractor shall without prejudice to its obligations under this
Deed and/or at law and/or otherwise take out and use its best
endeavours to maintain: -
3.1.1 such insurance as the Contractor is required to maintain pursuant
to the terms of the Building Contract
3.1.2 for a period of twelve years from the date of the Certificate of
Practical Completion issued under the Building Contract for the whole
of the Project or equivalent event for the purposes of the Building
Contract such professional indemnity insurance as is required by
Building Contract to cover the Contractor's obligations and liabilities
relating to design under or in connection with this Deed with a limIt
of indemnity of not less than 5,000,000 Pound Sterling for each and
every claim and in aggregate plus one automatic reinstatement subject
to an excess of 50,000 Pound Sterling each and every claim provided
that the said insurance remains available in the UK market place at
commercially reasonable rates. The Contractor shall immediately inform
the Landlord if such insurance is not or ceases to be available at
commercially reasonable rates in order that the Contractor and the
Landlord can discuss the means of best protecting themselves in the
absence of such insurance.
3.2 The Contractor shall as and when it is reasonably required to do so by
the Landlord make available for inspection by the Landlord documentary
evidence that such insurance is being properly maintained and the
Contractor shall forthwith inform the Landlord if such insurance ceases
to be available.
4. ASSIGNMENT
4.1 The Landlord shall be entitled to assign or transfer all or any of the
rights arising under this teed on two separate occasions only to any
person company or other entity acquiring the whole of the Landlord's
interest in the Premises provided that notice in writing of such
assignment shall be given to the Contractor.
4.2 The Contractor shall not be entitled to assign transfer charge or
otherwise dispose of the rights or liabilities arising under this Deed
to any other party.
5. NON-WAIVER
5
The obligations of the Contractor hereunder shall not be released or
diminished by the appointment of any person by the Landlord to carry
out any independent enquiry into any matter in relation to the Project
or the failure by the Tenant to make such appointment.
6. LAW
Any and all disputes and claims between the Tenant and the Contractor
as to the construction interpretation validity and application of this
Deed and any and all matters or things of whatsoever nature arising out
of or in connection therewith shall be governed by English law and the
jurisdiction of the English Courts and shall be and are hereby referred
to the English Courts.
7. LIMITATION
Notwithstanding the date hereof the Contractor shall have no liability
hereunder after the expiry of twelve years from the date of the last
Certificate of Practical Completion issued for the whole of the Project
under the Building Contract.
8. ENTIRE AGREEMENT
This Deed represents the entire agreement between the Contractor and
the Tenant with respect to those matters to which the Deed refers.
IN WITNESS WHEREOF the parties have executed these presents as a Deed the day
and year first before written.
6
SUB-CONTRACTOR
THIS DEED is made the day of 199
BETWEEN:
1. [ ] (Registered Number [
]) whose registered office is situated at [
] (or) [of
] (the "Sub-Contractor" which
expression shall include a Sub-Consultant)
2. STANDARD LIFE ASSURANCE COMPANY incorporated by Act of Parliament and
having its head office at 3 George Street Edinburgh EH2 2XZ (the
"Landlord" which expression shall include its successors in title and
assigns and those deriving title under it or them);
3. CITY MORTGAGE SERVICING LIMITED whose registered office is at 19
Cavendish Square London W1A 2AW (the "Client" which expression shall
include its successors in title and assigns and those deriving title
under it or them);
4. MORGAN LOVELL WEST LIMITED Ascot House Doncastle Road Bracknell
Berkshire RG12 8PE (the "Contractor")
WHEREAS:-
(A) The Landlord has an interest in Malvern House Croxley Business Park
Watford ("the Premises").
(B) The Landlord has entered into an agreement for lease with the Client
under which (inter alia) the Client has agreed to take a lease of the
Premises subject to completion of certain Works (the "Project").
(C) The Client is the employer under a building contract dated [
] (the "Building Contract") entered into with the Contractor for the
carrying out and completion of the Project (which expression shall
include any additional works
1
carried out by the Contractor under the Building Contract in connection
with any modifications or variations made thereunder).
(D) The Contractor has entered into a contract dated [ ]
(the "Sub-Contract") with The Sub-Contractor for the carrying out and
completion of works as defined in the Sub-Contract (the "Sub-Contract
Works") in relation to the Project.
(E) The Contractor has undertaken to procure that the Sub-Contractor enters
into this Deed and the Sub-Contractor has agreed to provide this Deed.
NOW THIS DEED WITNESSETH as follows: -
1. OBLIGATIONS
1. The Sub-Contractor warrants to the Landlord and separately to the
Client that:-
1.1 the Sub-Contractor has duly carried out and completed and/or will duly
carry out and complete the Sub-Contract Works in accordance with the
Sub-Contract and that it has complied and/or will comply in all
respects with all its obligations under the Sub-Contract;
1.2 to the extent that the Sub-Contractor has selected and/or will select
materials and/or goods for the Sub-Contract Works they are or will be
of good quality;
1.3 insofar as the Sub-Contractor is required by the terms of the
Sub-Contract to provide information to the Contractor and/or any
consultant of the Contractor such information shall be supplied
properly and in a timely manner;
1.4 insofar as the Sub-Contractor is required pursuant to the Sub-Contract
to adopt or to undertake or to accept responsibility for works of
design in connection with the Sub-Contract Works the Sub-Contractor has
and will continue to exercise all the reasonable skill and care to be
expected of a properly qualified and Competent subcontractor
experienced in adopting
2
undertaking or accepting responsibility for such works of design in
sub-contract works of a similar size type scope and complexity to the
Sub-Contract Works;
1.5 the Sub-Contract Works satisfy or will when completed satisfy the
performance or other specification or requirement included in or
referred to in the Sub-Contract;
1.6 none of the following have been or shall be specified by the
Sub-Contractor for use in the Sub-Contract Works and that the
Sub-Contractor has not and shall not authorise cause to be used use or
suffer the use in or about the Sub-Contract Works of any of the
following:-
1.6.1 high alumina cement in structural elements;
1.6.2 wood wool slabs in permanent formwork to concrete or in structural
elements;
1.6.3 calcium chloride in admixtures for use in reinforced concrete;
1.6.4 calcium silicate bricks or tiles;
1.6.5 asbestos or asbestos-containing products;
1.6.6 aggregates for use in reinforced concrete which do not comply with
British Standard Specification 882: 1983 and aggregates for use in
concrete which do not comply with the provisions of British
Standard Specification 8110: 1985;
1.6.7 lead or any materials containing lead which may be ingested
inhaled or absorbed except where copper alloy fittings containing
lead are specifically required in drinking water pipework by any
relevant statutory requirement;
3
1.6.8 urea formaldehyde foam or materials which may release formaldehyde
in quantities which may be hazardous with reference to the limits
set at the date hereof by the Health and Safety Executive;
1.6.9 slipbricks;
1.6.10 vermiculite plaster;
1.6.11 polyisocyanurate foam;
1.6.12 extruded polystyrene other than low ozone depletion materials;
1.6.13 materials which are generally composed of mineral fibres either
man-made or naturally occurring which have a diameter of 3
microns or less and a length of 200 microns or less or which
contain any fibres not sealed or otherwise stabilised to ensure
that fibre migration is prevented;
1.6.14 other substances generally known to be deleterious at the time of
their specification; and
1.6.15 other substances not in accordance with British Standards or Codes
of Practice where such exist or such other equivalent standards or
requirements.
2 DOCUMENTS
2.1 The Sub-Contractor hereby grants to the Landlord and separately to the
Client an irrevocable royalty-free licence to copy and use all
technical information drawings models specifications schedules details
plans programmes calculations working papers or other documents work or
things whatsoever provided or to be provided by the Sub-Contractor in
connection with the Sub-Contract Works (the "Documents") and to
reproduce the works designs and inventions contained in the Documents
for all purposes related to the Sub-Contract Works including but
without limitation the construction completion reconstruction
alteration extension maintenance letting
4
promotion advertisement reinstatement use and repair of the
Sub-Contract Works or of the Client's or the Landlord's respective
interest in it provided that for the avoidance of doubt the copyright
in the Documents shall remain in the Sub-Contractor. The Client and/or
the Landlord shall be entitled to grant sub-licences and the Client's
and the Landlord's licence and such sub-licences shall be transferable
to others PROVIDED ALWAYS that the Sub-Contractor shall have no
liability in the event the Documents are used for a purpose other than
that for which they were prepared.
2.2 The Sub-Contractor hereby irrevocably waives any rights it may have
pursuant to Chapter IV (Moral Rights) of Part 1 of the Copyright
Designs and Patents Act 1988 in relation to the Sub-Contract Works or
any part thereof or to any Documents and shall obtain a written waiver
from its employees from time to time of any rights they have in respect
of the same, provided that the Sub-Contractor shall with the Client's
and the Landlord's consent such consents not to be unreasonably
withheld or delayed be entitled to use the Documents in connection with
the publication of its work and the marketing of its services.
2.3 The Sub-Contractor shall provide the Client and separately the Landlord
at its or their request and upon reimbursement of the reasonable costs
of producing the same such copies of all or any of the Documents as are
required by the Client and the Landlord respectively.
3. INSURANCE
3.1 The Sub-Contractor shall without prejudice to its obligations under
this Deed and/or at law and/or otherwise take out and use its best
endeavours to maintain:-
3.1.1 such insurance as the Sub-Contractor is required to maintain
pursuant to the terms of the Sub-Contract;
3.1.2 for a period or twelve years from the date of Certificate of
Practical Completion issued under the Building Contract for the
whole of the Project or equivalent event for the purposes of the
Building Contract such professional indemnity insurance as is
required by the Sub-Contract to cover the Sub-
5
Contractor's obligations and liabilities relating to design under
or in connection with this Deed with a limit of indemnity of not
less than 1,000,000 Pounds Sterling each and every claim except
with pollution and contamination where 1,000,000 Pounds Sterling
in aggregate
3.2 The Sub-Contractor shall as and when it is reasonably required to do so
by the Client and/or the Landlord make available for inspection by the
Client and/or the Landlord as appropriate documentary evidence that
such insurance is being properly maintained and the Sub-Contractor
shall inform the Client and the Landlord if such insurance ceases to be
available.
4. WARRANTIES
4.1 If and whenever so required in writing by the Client and/or the
Landlord the Sub-Contractor shall forthwith execute a deed or deeds in
the form set out at Appendix 1 hereto in favour of any person or
persons acquiring all or part of the Client's or the Landlord's
respective interests in the Premises or any part or parts thereof.
4.2 In the event of the appointment of the Contractor under the Building
Contract at any time being determined by the Client for whatsoever
reason and howsoever arising and a replacement contractor (the
"Replacement Contractor") being appointed by the Client for the
carrying out and completion of the Project as and when requested by the
Client:-
4.2.1 the Sub-Contractor shall forthwith execute a deed in the form of
this Deed mutatis mutandis with the Client and the Replacement
Contractor in substitution for the Contractor; and
4.2.2 the Contractor and the Sub-Contractor shall forthwith execute with
the Replacement Contractor a novation agreement by which agreement
the Replacement Contractor shall replace the Contractor as though
the Replacement Contractor was and always has been the employer of
the Sub-Contractor under the Sub-Contract.
5. ASSIGNMENT
6
5.1 The Client and the Landlord shall be fully entitled to assign or
transfer all or any of their respective rights arising under this Deed
on two separate occasions only to any person company or other entity
acquiring the Client's and the Landlord's respective interests in the
Project provided that notice in writing of such assignment shall be
given to the Contractor.
5.2 The Sub-Contractor shall not be entitled to assign or transfer all or
any of its rights arising under this Deed to any other party.
6. NON-WAIVER
The obligations of the Sub-Contractor hereunder shall not be released
or diminished by the appointment of any person by the Client and/or the
Landlord to carry out any independent enquiry into any matter in
relation to the Sub-Contract Works or the failure by the Client and/or
the Landlord to make such appointment.
7. LAW
Any and all disputes and claims between the Client the Landlord and the
Sub-Contractor as to the construction interpretation validity and
application of this Deed and any and all matters or things of
whatsoever nature arising out of or in connection therewith shall be
governed by English law and the jurisdiction of the English Courts and
shall be and are hereby referred to the English Courts.
8. LIMITATION
Notwithstanding the date hereof the Sub-Contractor shall have no
liability hereunder after the expiry of twelve years from the date of
Practical Completion Certificate issued for the whole of the Project
under the Building Contract.
IN WITNESS WHEREOF the parties have executed these presents as a Deed the day
and year first before written.
7
PROJECT MANAGER
THIS DEED is made the day of 19
BETWEEN:-
1. STANDARD LIFE ASSURANCE COMPANY incorporated by Act of Parliament and
having its head office at 3 George Street, Edinburgh, EH2 2XZ (the
"Landlord" which expression shall include its successors in title and
its permitted assigns and those deriving title under it or them) and
2. ALTONWOOD PROJECT SERVICES LIMITED of 2 Hobbs House Harrovian Business
Village Bessborough Road Harrow HA1 3EX (the "Consultant").
WHEREAS
(a) The Landlord has an interest in Malvern House Croxley Business Park
Watford ("the Premises").
(b) The Landlord has entered into an agreement for lease with City Mortgage
Servicing Limited whose registered office is at 19 Cavendish Square,
London, W1A 2AW (the "Client") under which (inter alia) the Client has
agreed to take a lease of the Premises subject to completion of certain
works (the "Project").
(c) The Client has entered into:-
(i) a contract dated with the Consultant for the
provision of services (the "Services") including without
limitation the certification of costs in relation to the
Project; and
(ii) an appointment dated with the Consultant
whereunder the Consultant has agreed to act as the
Employer's Agent as defined under a Building Contract dated
[ ] made between the Client (1) and Morgan
Lovell Limited (2)
1
(together "the Appointments") copies of each document being annexed hereto
NOW THIS DEED WITNESSETH as follows:-
1. THE SERVICES
1.1 The Consultant warrants to the Landlord that the Consultant has
complied with and/or shall comply with all the Consultant's obligations
under the Appointments in accordance therewith and that the Consultant
has exercised and will continue to exercise in the performance of the
Services all the reasonable skill care and diligence to be expected of
a properly qualified Project Manager and Employer's Agent experienced
in carrying out services for projects of a similar size scope and
complexity to the Project.
1.2 The Consultant contracts with the Landlord that it will be liable to
pay to the Tenant its "Net Contribution" (as defined in this clause)
caused by failure to exercise the reasonable skill and care referred to
in clause 1.1 in the performance of its duties and responsibilities
under the Appointments.
1.2.1 The "Net Contribution" shall be such sum as shall be agreed
between the Consultant and the Landlord or adjudged by a Court to
be the proportion of the proper cost to the Landlord of remedying
physical defects to the Project directly caused by the
Consultant's failure to exercise reasonable skill and care in the
performance of its duties and responsibilities under the
Appointments. The Consultant's liability under this Deed shall be
limited to that proportion of the Landlord's losses and damage
costs and expenses which it would be just and equitable to require
the Consultant to pay having regard to the extent of the
Consultant's responsibility for the same and on the basis that the
Mechanical and Electrical Sub-Consultant appointed in connection
with the Project and the Contractor appointed in respect of the
design and/or construction of the Project shall be deemed to have
provided contractual undertakings to the Landlord in respect of
their services in connection with the Project in terms similar to
those of this Deed and shall be deemed to have paid to the
Landlord such proportion which it would be
2
just and equitable for them to pay having regard to the extent of
their respective responsibilities.
1.2.2 The Consultant shall owe no greater duties or obligations in time
or in nature and shall have no greater liabilities hereunder to
the Landlord than those it owes under the Appointments.
1.2.3 Any agreement or arrangement made pursuant to the Appointments in
respect of the Consultant's duties shall likewise bind the
Landlord.
2. The Consultant further warrants that none of the following have been or
shall be specified by the [Contractor] [Sub-Contractor] for use in the
Project.
2.1 high alumina cement in structural elements;
2.2 wood wool slabs in permanent framework to concrete or in
structural elements;
2.3 calcium chloride in admixtures for use in reinforced concrete;
2.4 aggregate for use in reinforced concrete which do not comply with
British Standard Specification 882: 1983 and aggregates for use in
concrete which do not comply with the provisions of British
Standard Specification 8110: 1985;
2.5 calcium silicate bricks or tiles;
2.6 asbestos or asbestos-containing products;
2.7 lead or any materials containing lead which may be ingested
inhaled or absorbed except where copper alloy fittings containing
lead are specifically required in drinking water pipework by any
relevant statutory requirement;
3
2.8 urea formaldehyde foam or materials which may release formaldehyde
in quantities which may be hazardous with reference to the limits
set at the time of specification by the Health & Safety Executive;
2.9 slipbricks;
2.10 vermiculite plaster;
2.11 polyisocyanurate foam;
2.12 extruded polystyrene other than low ozone depletion materials;
2.13 materials which are generally composed of mineral fibres either
man-made or naturally occurring which have a diameter of 3 microns
or less and a length of 200 microns or less or which contain any
such fibres not sealed or otherwise stabilised to ensure that
fibre migration is prevented;
2.14 other substances which not later than one month prior to their
incorporation into the Project have been published in the Building
Research Establishment Digest as deleterious to Health & Safety or
deleterious to the durability of the property in the particular
circumstances in which they are used.
2.15 other substances not in accordance with British Standards or Codes
of Practice or such other equivalent standards as are notified to
the Client at the time of specification and agreed by the Client
in writing.
2.16 The Consultant shall also notify the Landlord of any material
which it has come to his attention has been designated as
deleterious at any time during the project.
3. PROVISION OF DOCUMENTS
The Consultant shall provide to the Landlord on demand and on payment
of the Consultant's reasonable costs of producing the same copies of
any technical information drawings models bills of quantities
specifications schedules details plans and other similar documents (the
"Documents") provided by the Consultant in
4
connection with the Project. The Consultant hereby grants to the
Landlord an irrevocable royalty-free licence to copy and use the
Documents and to reproduce the works designs and inventions contained
In the documents for all purposes related to the Project including but
without limitation the construction completion reconstruction
alteration maintenance letting promotion advertisement reinstatement
use and repair of the Project or the Landlord's interest in it and the
Landlord shall be entitled to grant sub-licences and the Landlord's
licence and such sub-licences shall be transferable to others provided
that the Consultant shall not be liable for the consequences of any use
of the Documents by the Landlord or any other party for any purpose
other than that for which they ware prepared and provided by the
Consultant.
4. INSURANCE
The Consultant shall without prejudice to its obligations and
warranties under this Deed and/or at law or otherwise take out and
maintain appropriate insurance with a well established insurance
company or underwriter of repute to cover the Consultant's liabilities
under or in connection with this Deed until the expiry of twelve years
from the issue of the final certificate or equivalent document under
the Building Contract to be issued in respect of the Project with a
limit of indemnity of not less than [ONE MILLION POUNDS (Pounds
Sterling 1,000,000] for each and every claim provided that such
insurance continues to be available in the insurance market at
reasonable commercial premium rates. The Consultant shall as and when
it is reasonably required to do so by the Landlord on renewal for the
renewal period make available for inspection by the Landlord
documentary evidence that such insurance is being property maintained.
The Consultant shall immediately inform the Landlord if such insurance
ceases to be maintained and/or available in the insurance market at
reasonable commercial premium rates.
5. ASSIGNMENTS
The Landlord shall be fully entitled to assign by way of absolute legal
assignment only all of its rights under this Deed at any time during
the currency of this Deed to any person taking all of the Landlord's
interest in the Project without the consent of the Consultant. No other
assignment is permitted.
6. INDEPENDENT INSPECTION
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The liability of the Consultant under this Deed shall not be modified
released diminished or in any way affected by any independent
inspection investigation or enquiry into any relevant matter which may
be made or carried out by or for the Landlord nor by any failure or
omission to carry out any such inspection investigation or enquiry nor
by the appointment by the Landlord or failure so to appoint any
independent firm company or party whatsoever to review the progress of
or otherwise report to the Landlord in respect of the Project not by
any action or omission of any such firm company or party whether or not
such action or omission might give rise to any independent liability of
such firm company or party to the Landlord. Provided always that
nothing in this clause shall modify or affect any rights which the
Consultant might have but for the existence of this clause to claim
contribution from any third party whether under statute or at common
law.
7. LIMITATION
Notwithstanding the date hereof the Consultant shall have no liability
hereunder after the expiry of twelve years from the date of Practical
Completion of the Project as certified under the Building Contract.
8. LAW
Any and all disputes and claims between the Landlord and the Consultant
as to the construction interpretation validity and application of this
Deed and any and all matters or things of whatsoever nature arising out
of or in connection therewith shall be governed by English Law and the
jurisdiction of the English Courts and shall be and are hereby referred
to the English Courts.
IN WiTNESS WHEREOF the Consultant has executed these presents as a Deed the day
and year first before written.
THE COMMON SEAL of [
] was
affixed to this Deed in the presence
of:
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Director
Secretary
Executed as a Deed
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CONTRACTOR
THIS DEED is made the day of 199
BETWEEN: -
1. MORGAN LOVELL WEST LIMITED (Registered Number [ ]) whose
registered office is situated at [
] (or) [of
] (the "Contractor")
2. STANDARD LIFE ASSURANCE COMPANY incorporated by Act of Parliament and
having its head office at 3 George Street, Edinburgh, EH2 2XZ (the
"Landlord" which expression shall include its successors in title and
assigns and those deriving title under it or them)
WHEREAS:-
(A) CITY MORTGAGE SERVICING LIMITED whose registered office is at 19
Cavendish Square London W1A 2AW ("the Client" which expression shall
include its successors in title and assigns and those deriving title
under it or them) is carrying out certain works (more particularly
described in the Building Contract) (the "Project") at Malvern House
Croxley Business Park (the "Premises").
(B) The Landlord has entered into an agreement for lease whereby the
Landlord has inter alia agreed to grant and the Client has agreed to
take a lease of the Premises subject to satisfactory completion of the
Project.
(C) The Client is the employer under a building contract dated [ ]
(the "Building Contract") entered into with the Contractor for the
carrying out and completion of the Project (which expression shall
include any additional works carried out by the Contractor under the
Building Contract in connection with any modifications or variations
made thereunder).
NOW THIS DEED WITNESSETH as follows:-
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1. OBLIGATIONS
1. The Contractor warrants and undertake to the Landlord that: -
1.1 the Contractor has duly carried out and completed and/or will duly
carry out and complete the Project in accordance with the Building
Contract and that it has complied and/or will comply in all respects
with all its express and implied obligations under the Building
Contract;
1.2 to the extent that the Contractor has selected and/or will select
materials and/or goods for the Project they are or will be of good
quality and reasonably fit for their intended purpose;
1.3 insofar as the Contractor is required by the terms of the Building
Contract to provide information to the Client and/or any consultant of
the Client such information shall be supplied properly and in a timely
manner;
1.4 insofar as the Contractor is required pursuant to the Building Contract
to adopt or to undertake or to accept responsibility for works of
design in connection with the Project the Contractor has and will
continue to exercise all the reasonable skill and care to be expected
of a properly qualified and competent contractor experienced in
adopting undertaking or accepting responsibility for such works of
design in projects of a similar size type scope and complexity to the
Project;
1.5 the Project satisfies or will when completed satisfy any performance or
other specification or requirement included in or referred to in the
Building Contract;
1.6 none of the following have been or shall be specified by the Contractor
for use in the Project and that the Contractor has not and shall not
authorise cause to be used use or suffer the use in or about the
Project of any of the following:
1.6.1 high alumina cement in structural elements:
1.6.2 wood wool slabs in permanent formwork to concrete or in structural
elements;
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1.6.3 calcium chloride in admixtures for use in reinforced concrete;
1.6.4 calcium silicate bricks or tiles;
1.6.5 asbestos or asbestos-containing products;
1.6.0 aggregates for use in reinforced concrete which do not comply with
British Standard Specification 882: 1983 and aggregates for use in
concrete which do not comply with the provisions of British
Standard Specification 8110: 1985;
1.6.7 lead or any materials containing lead which may be ingested
inhaled or absorbed except where copper alloy fittings containing
lead are specifically required in drinking water pipework by any
relevant statutory requirement;
1.6.8 urea formaldehyde foam or materials which may release formaldehyde
in quantities which may be hazardous with reference to the limits
set at the date hereof by the Health and Safety Executive;
1.6.9 slipbricks;
1.6.10 vermiculite plaster;
1.6.11 polyisocyanurate foam;
1.6.12 extruded polystyrene other than low ozone depletion materials;
1.6.13 materials which are generally composed of mineral fibres either
man-made or naturally occurring which have a diameter of 3 microns
or less and a length of 200 microns or less or which contain any
fibres not sealed or otherwise stabilised to ensure that fibre
migration is prevented;
1.6.14 other substances recognised by the Building Research Establishment
known to be deleterious at the time of their specification; and
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1.6.15 other substances not in accordance with British Standards or Codes
of Practice where such exist or such other equivalent standards or
requirements at the time of specification.
2. DOCUMENTS
2.1 The Contractor hereby grants to the Landlord an irrevocable
royalty-free licence to copy and use all technical information drawings
models bills of quantity specifications schedules detail plans programs
budgets reports calculations working papers or other documents work or
things whatsoever provided or to be provided by the Contractor in
connection with the Project (the "Documents") for all purposes related
to the Project including but without limitation the construction
completion reconstruction alteration extension maintenance letting
promotion advertisement reinstatement use and repair of the Project or
of the Landlord's interest in it provided that for the avoidance of
doubt the copyright in the Documents shall remain in the Contractor.
The Landlord shall be entitled to grant sub-licences and the Landlord's
licence and such sub-licences shall be transferable to others PROVIDED
ALWAYS that the Contractor shall have no liability in event the
Documents are used for a purpose other than that for which they were
originally prepared.
2.2 The Contractor hereby irrevocably waives any rights it may have
pursuant to Chapter IV (Moral Rights) of Part 1 of the Copyright
Designs and Patents Act 1988 in relation to the Project or any pan
thereof or to any Documents and shall obtain a written waiver from its
employees from time to time of any rights they have in respect of the
same provided that the Contractor shall with the Landlord's consent
such consent not to be unreasonably withheld or delayed be entitled to
use the Documents in connection with the publication of its work and
the marketing of its services.
2.3 The Contractor shall provide the Landlord at its request and upon
reimbursement of the reasonable costs of producing the same such copies
of all or any of the Documents as are required by the Landlord.
3. INSURANCE
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3.1 The Contractor shall without prejudice to its obligations under this
Deed and/or at law and/or otherwise take out and use its best
endeavours to maintain:-
3.1.1 such insurance as the Contractor is required to maintain pursuant
to the terms of the Building Contract
3.1.2 for a period of twelve years from the date of the last Certificate of
Practical Completion issued under the Building Contract for the whole
of the Project or equivalent event for the purposes of the Building
Contract such professional indemnity insurance as is required by
Building Contract to cover the Contractor's obligations and liabilities
relating to design under or in connection with this Deed with a limit
of indemnity of not less than 5,000,000 Pound Sterling for each and
every claim provided that the said insurance remains available in the
UK market place at commercially reasonable rates. The Contractor shall
immediately inform the Landlord if such insurance is not or ceases to
be available at commercially reasonable rates in order that the
Contractor and the Landlord can discuss the means of best protecting
themselves in the absence of such insurance.
3.2 The Contractor shall as and when it is reasonably required to do so by
the Landlord make available for inspection by the Landlord documentary
evidence that such insurance is being properly maintained and the
Contractor shalt forthwith inform the Landlord if such insurance ceases
to be available.
4. ASSIGNMENT
4.1 The Landlord shall be entitled to assign or transfer all or any of the
rights arising under this Deed at any time to any person company or
other entity acquiring the whole of the Landlord's interest in the
Premises provided that notice in writing of such assignment shall be
given to the Contractor.
4.2 The Contractor shall not be entitled to assign transfer charge or
otherwise dispose of the rights or liabilities arising under this Deed
to any other party.
5. NON-WAIVER
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The obligations of the Contractor hereunder shall not be released or
diminished by the appointment of any person by the Landlord to carry
out any independent enquiry into any matter in relation to the Project
or the failure by the Tenant to make such appointment.
6. LAW
Any and all disputes and claims between the Tenant and the Contractor
as to the construction interpretation validity and application of this
Deed and any and all matters or things of whatsoever nature arising out
of or in connection therewith shall be governed by English law and the
jurisdiction of the English Courts and shall be and are hereby referred
to the English Courts.
7. LIMITATION
Notwithstanding the date hereof the Contractor shall have no liability
hereunder after me expiry of twelve years from the date of the last
Certificate of Practical Completion issued for the whole of the Project
under the Building Contract.
8. ENTIRE AGREEMENT
This need represents the entire agreement between the Contractor and
the Tenant with respect to those matters to which the Deed refers.
IN WITNESS WHEREOF the parties have executed these presents as a Deed the day
and year first before written.
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