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EXHIBIT 10.10
DATED: 1998
BRITEL FUND TRUSTEES LIMITED
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GOLDMAN SACHS INTERNATIONAL
- and -
THE GOLDMAN SACHS GROUP, L.P.
UNDERLEASE
of
premises known as One Carter Lane London EC4
Linklaters & Paines
One Silk Street
London EC2Y 8HQ
Tel: 0171 456 2000
Ref: CBC/DAJR/7100675
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LEASE PARTICULARS
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1. Date : 1998
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2. PARTIES
2.1 Landlord : Britel Fund Trustees Limited (Company
number 1687513) whose registered office
is at
Standon House 21 Mansell Street
London E1 8AA
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2.2 Tenant : Goldman Sachs International (Company
number 226395) whose registered office
is at Peterborough Court
133 Fleet Street London EC4A 2BB
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2.3 Guarantor : The Goldman Sachs Group, L.P 85 Broad
Street New York New York 10004 and
whose address for service in the UK is
c/o The Facilities Manager Goldman Sachs
International Peterborough Court
133 Fleet Street London EC4A 2BB
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3. CONTRACTUAL TERM : 20 years from and including 19th March
1998
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4. PRINCIPAL RENT : [(pound)5,184,982] POUNDS
per annum payable from and including
the Rent Commencement Date and subject
to increase in accordance with the
Second Schedule
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5. RENT : [ ] 1999
COMMENCEMENT
DATE
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6. REVIEW DATES : the 19th March in the years 2003, 2008
and 2013
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7. PERMITTED : as high class offices within Class B1(a)
of the 1987 Order and for
USE any purpose ancillary to such use as
offices
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1 DEFINITIONS
In this Lease unless the context otherwise requires:
ADJOINING PROPERTY means the Restaurant and all other property adjoining
or neighbouring the Premises in which the Landlord or any Group Company
has or shall have during the Term a freehold or leasehold interest
whether in possession or reversion.
An "AFFILIATE" of any specified person means any other person directly or
indirectly controlled or controlled by or under common control with such
specified person (for the purposes of this paragraph and the definition
of "Group Company" `control' (including `control by' or under `common
control with') shall mean the power to direct and procure management and
policies directly or indirectly whether through the ownership of voting
securities or equity interests by contract or otherwise) for so long as
such power is exercised;)
ARBITRATION means arbitration in accordance with Clause 8.3
BASE RATE means the base rate from time to time of Royal Bank of Scotland
PLC or (if not available) such comparable rate of interest as the
Landlord shall reasonably require
CATEGORY "A" WORKS mean the works as so described in the Specification
COMMON PARTS means the paved areas shown hatched in black on plan
2897/GS/19-2005 together with the planters shown thereon
CONDUITS means any existing or future media for the passage of substances
telecommunications or energy and any ancillary apparatus attached to them
and any enclosures for them
CONTRACTUAL TERM means the term specified in paragraph 4 of the
Particulars
DETERMINATION DATE means 18th day of March 2013
ENCUMBRANCES means the matters contained or referred to in the documents
specified in Part III of the First Schedule
GROUP COMPANY means any company within the same group of companies as or
Associated with or an Affiliate of the Tenant as set out below:
(i) Any two companies shall be taken to be members of a group if one
is the subsidiary of the other or both are subsidiaries of a third
company;
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(ii) A company corporation or partnership shall be taken to be
"ASSOCIATED" with another if and only if one is a subsidiary or
Affiliate of another or both are subsidiaries or Affiliates of a
third company corporation or partnership;
(iii) In determining whether any company is a subsidiary of another
company the word subsidiary bears the meaning assigned to it by
Section 736 of the Companies Act 1985 as originally enacted;
(iv) In determining whether any corporation (which shall be construed
in accordance with Section 740 of the Companies Act 1985 as
originally enacted) is a subsidiary of another corporation or of a
company or whether any company is a subsidiary of a corporation
the word subsidiary bears the meaning assigned to it by Section
736 of the Companies Act 1985 as originally enacted but modified
only so that `company' includes `corporation' for this purpose;
(v) A partnership (which shall be construed as including a partnership
under the laws of the United Kingdom or elsewhere) shall be taken
to be a subsidiary of another partnership or of a company or
corporation if that other partnership or company or corporation is
entitled to either (a) more than one half of the assets or (b)
more than one half of the income of the first mentioned
partnership and in either such case that other partnership or
company or corporation exercises control over the first mentioned
partnership.
(vi) A company or corporation shall be deemed to be a subsidiary of a
partnership if that partnership either (a) controls the
composition of the board of directors of the company or
corporation or (b) holds more than half in nominal value of the
issued equity share capital of the company or corporation and in
either such case the partnership exercises control over the
company or corporation;
GUARANTOR means the person (if any) so named in the Particulars and such
other person as may from time to time covenant pursuant to clause
4.15.2(ii)(c) and in the case of an individual includes his personal
representatives
INSURED RISKS means the risks from time to time required to be insured
against under the terms of the Superior Lease
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LANDLORD means the person in whom the immediate reversion to this Lease
shall for the time being be vested being initially the person so named in
the Particulars
THIS LEASE means this lease and any document supplemental to it or
entered into pursuant to it
PARTICULARS means the descriptions and terms on the page headed LEASE
PARTICULARS which forms part of this Lease
PLANNING ACTS means the Town and Country Planning Act 1990 the Planning
(Listed Buildings and Conservation Areas) Act 1990 the Planning
(Hazardous Substances) Act 1990 and the Planning (Consequential
Provisions) Act 1990
PREMISES means the building known as One Carter Lane London EC4 shown
edged blue on Plan 1 (including at basement level the Service Bay and
Service Ramp and other ancillary accommodation) but excluding the
Restaurant including those parts of the basement forming part of the
Restaurant) and each and every part thereof and all additions and
alterations or reinstatements thereof
PRINCIPAL RENT means the rent stated in paragraph 4 of the Particulars
QUARTER DAYS means 25 March 24 June 29 September and 25 December in every
year and QUARTER DAY means any of them
RESTAURANT means premises at ground lower ground and basement levels and
shown for identification only edged red on Plans 1, 2, 3, 4 and 5 and
known as Two Old Change Court London EC4 and each and every part thereof
and all buildings from time to time thereon including the railings shown
coloured blue on Plans 6, 7 and 8
but excluding the structural elements coloured orange on Plans 2 and 3
RESTAURANT SPACES means the car, motor cycle and bicycle spaces allocated
to the Restaurant coloured green and blue on Plan 5 annexed hereto
LOADING BAY means the area within the Premises at basement level
available for use by the occupier of the Restaurant shown hatched green
on Plan 5
SERVICE AREA means the service area shown hatched purple on Plan 5
SERVICE RAMP means the access way at ground level leading from the public
highway known as Distaff Lane to the basement of the Premises and to the
Adjoining Property and shown hatched blue on Plan 5
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SPECIFICATION means the Specification annexed hereto
SUPERIOR LEASE means the Lease referred to in Part IV of the First
Schedule hereto being the Lease under which the Landlord holds inter alia
the Premises
SUPERIOR LANDLORD means the person or persons for the time being entitled
to the reversion mediately or immediately expectant on the determination
of the Superior Lease (or any other superior lease or leases)
TENANT means the person so named in the Particulars and includes its
successors in title
TERM means the Contractual Term together with any continuation of the
term or the tenancy (whether by statute common law holding over or
otherwise)
VAT means Value Added Tax and any similar tax substituted for it or
levied in addition to it
1987 ORDER means the Town and Country Planning (Use Classes) Order 1987
(as originally made)
1995 ACT means the Landlord and Tenant (Covenants) Act 1995
2 INTERPRETATION
In this Lease unless the context otherwise requires:
2.1 If the Tenant or the Guarantor for the time being is more than one person
then their covenants are joint and several
2.2 Any reference to a statute (except for the 1987 Order) includes any
modification extension or reenactment of it and any orders regulations
directions schemes and rules made under it
2.3 Any covenant by any party not to do any act or thing includes an
obligation not to permit or suffer such act or thing to be done
2.4 References to the ACT OR DEFAULT OF THE TENANT include acts or default or
negligence of anyone at the Premises with the Tenant's or any
undertenant's authority
2.5 The index and Clause headings in this Lease are for ease of reference
only
2.6 References to the LAST YEAR OF THE TERM shall mean the year immediately
prior to the expiration or earlier termination of the Term
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2.7 References to LIABILITY include claims demands proceedings damages losses
and proper costs and expenses
2.8 References to any right of the Landlord to have access to the Premises
shall be construed as extending to the Superior Landlord and to all
persons authorised by the Landlord and the Superior Landlord (including
agents professional advisers contractors workmen and others) but in
relation to the Landlord always on the terms set out in Clause 4.21 below
2.9 Whenever the consent or approval of the Landlord is required or requested
in relation to this Lease such provisions shall be construed as also
requiring the consent or approval of the Superior Landlord where the same
shall be required except that nothing in this Lease shall be construed as
implying that any obligation is imposed upon a Superior Landlord not
unreasonably to refuse any such consent
3 DEMISE AND RENTS
The Landlord DEMISES the Premises to the Tenant TOGETHER WITH the rights
set out in Part I of the First Schedule EXCEPT AND RESERVING as mentioned
in Part II of the First Schedule for the Contractual Term subject to and
with the benefit of the Encumbrances the Tenant paying by way of rents
without any deduction counterclaim or set off:
3.1 the Principal Rent (plus VAT) by equal quarterly payments in advance on
the Quarter Days the first payment for the period from and including the
Rent Commencement Date to (but excluding) the next Quarter Day to be made
on the Rent Commencement Date
3.2 such sums as may from time to time become payable pursuant to the proviso
to clause 4.6.4
3.3 within 14 days of demand:
3.3.1 the sums specified in Clauses 4.2 [interest] and 4.5 [utilities]
3.3.2 the sums specified in Clause 7.2 (insurance]
3.4 VAT in accordance with Clause 4.4
4 TENANT'S COVENANTS
The Tenant covenants with the Landlord throughout the Term or until
released pursuant to the 1995 Act as follows:
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4.1 RENTS
To pay the rents reserved by this Lease as and when required by Clause 3
4.2 INTEREST
If the Landlord does not receive any sum due to it on the due date to pay
on demand interest on such sum at 4 per cent above Base Rate (compounded
on the Quarter Days) from the due date until payment (both before and
after any judgment) provided this Clause shall not prejudice any other
right or remedy for the recovery of such sum
4.3 OUTGOINGS
To pay all existing and future rates taxes charges assessments and
outgoings in respect of the Premises (whether assessed or imposed on the
owner or the occupier) except any tax arising on any actual or deemed
dealing by the Landlord with its reversion to this Lease or any tax
(other than VAT) arising as a result of the receipt by the Landlord of
the rents payable by the Tenant under Clause 3 of this Lease
4.4 VAT
4.4.1 Obligations under this Lease to pay sums or provide consideration
to the Landlord shall be treated as exclusive of VAT and the
Tenant shall in addition pay any VAT chargeable on the same date
4.4.2 Obligations under this Lease to reimburse or pay the Landlord's
expenditure shall extend to the VAT on that expenditure which the
Landlord is not able to recover.
4.5 UTILITIES
To pay the suppliers and to indemnify the Landlord against all charges
for water electricity and gas and other services used on or in relation
to the Premises and in case the water electricity gas or other services
shall be metered or charged jointly in respect of the Premises and other
premises to pay to the Landlord on demand a fair proportion thereof.
4.6 REPAIR AND MANAGEMENT
4.6.1 To keep and maintain the Premises (and all Conduits exclusively
serving the Premises) in good and substantial repair and condition
(damage by the Insured Risks excepted save to the extent that
insurance moneys are irrecoverable as a result of the act or
default of the Tenant)
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4.6.2 To keep all plant and machinery apparatus and equipment comprised
within the Premises properly maintained and in good working order
and to enter into maintenance agreements with reputable
contractors for the regular servicing of all such plant and
machinery apparatus and equipment and to renew all working and
other parts as and when necessary or when recommended by such
contractors and to ensure by directions to the Tenant's staff and
otherwise that such plant and machinery apparatus and equipment
are properly operated
4.6.3 Not to do or omit to be done or suffer the same to be done or
omitted anything at or on the Premises which in any way has or
could have a material adverse affect on any contractual rights
which the Landlord has or may have (and of which the Tenant has
been notified) against any third party in respect of the design or
construction of the Premises or in respect of the installation of
any services plant machinery apparatus and equipment within the
Premises
4.6.4 Without prejudice to the generality of the other sub-clauses in
this Clause 4.6 at all times
(i) to ensure that the Premises are managed and serviced to the
standard of and appropriate for a high class office
building in the City of London
(ii) to repair maintain light clean supervise and provide such
other services for the Restaurant Spaces the Service Bay
(including the refuse compactor in it and the disposal of
refuse including the collection and compaction thereof) and
the Service Ramp and door and the maintenance of
receptacles and plant and equipment in connection therewith
all in accordance with the principles of good estate
management and to pay all taxes charges assessments and
other outgoings payable in respect thereof and all charges
assessments and outgoings for electricity gas oil and other
fuels payable in relation thereto or as the Tenant shall
from time to time reasonably consider necessary or as the
Landlord shall from time to time reasonably require the
Tenant to provide
(iii) to ensure that the Common Parts are kept in a clean and
tidy condition and that the planters are maintained and
kept adequately stocked with suitable plants and flowers
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(iv) to maintain inspect repair and renew the structural
elements shown coloured orange on Plans 2 and 3
Provided that in the event that and upon each such occasion the
Tenant fails to comply with any of the requirements of this clause
4.6.4 the Landlord shall be entitled but not obliged at the cost
in all respects of the Tenant to remedy such failure and to elect
to continue to have the conduct of such matters in which event
(A) the Tenant shall not have the conduct of such matters
unless and until the Landlord notifies the Tenant in
writing that the Landlord intends no longer to have such
conduct
(B) the Tenant shall pay to the Landlord from time to time
within 14 days after demand the costs incurred or to be
incurred by the Landlord in effecting such matters
(C) otherwise the provisions of clause 4.21 shall apply mutatis
mutandis
4.7 DECORATION
4.7.1 To clean prepare and paint or treat and generally redecorate all
parts of the Premises in every fifth year and in the last year of
the Term PROVIDED THAT in respect of those parts of the Premises
which by their nature construction or material require no such
treatment the Tenant shall do whatever is or may in the reasonable
opinion of the Landlord be necessary for the sake of their
appearance preservation and cleanliness
4.7.2 All the work described in Clause 4.7.1 is to be carried out
(i) in a good and workmanlike manner to the Landlord's
reasonable satisfaction
(ii) in the last year of the term internally and on every
occasion externally in colours which (if different from the
existing colour) are first approved in writing by the
Landlord (approval not to be unreasonably withheld or
delayed)
4.8 CLEANING
4.8.1 To keep the Premises clean tidy and free from rubbish
4.8.2 To clean the inside of windows and any washable surfaces at the
Premises as often as reasonably necessary
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4.9 OVERLOADING AND OBSTRUCTION
Not to overload the Premises or the lifts therein nor any plant and
machinery or electrical installation of or serving the Premises nor to
cause any interference or obstruction to the Conduits or the Common Parts
or other parts of the Estate
4.10 PROHIBITED USES
Not to use the Premises
4.10.1 for any purpose which is noisy or offensive dangerous or illegal
immoral or a nuisance or causes damage or disturbance to the
Landlord or other parts of the Estate or which involves any
substance which may be harmful polluting or contaminating
4.10.2 for residential purposes
4.10.3 for any auction, public or political meeting, public exhibition or
show or as a betting office or for gaming or playing amusement
machines or as a sex shop (as defined in the Local Government
(Miscellaneous Provisions) Act 1982) or for the business of an
undertaker or for the business of a staff agency employment agency
(or similar agencies) or Government Department at which the
general public call without appointment
4.11 PERMITTED USE
Not to use the Premises otherwise than for the Permitted Use specified in
the Particulars
4.12 SIGNS ETC
4.12.1 Not to erect any sign notice advertisement which is visible
outside the Premises except such external signage the size design
appearance materials and manner of affixation of which shall first
have been approved in writing by the Landlord (such approval not
to be unreasonably withheld or delayed) Provided that the Tenant
shall be entitled with the prior approval in writing of the
Landlord (such approval not to be unreasonably withheld or
delayed) to name the office building on the Premises and to erect
on the exterior of the office building a company logo or flag
which complies with the other requirements of this Lease.
4.12.2 Not to place any aerial satellite dish or other equipment on the
roof of the Premises other than in the area designated for such
purpose and then only with the prior consent of the Landlord such
consent not to be unreasonably witheld or delayed
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4.13 ALTERATIONS
4.13.1 Not to make any alterations or additions which:
(i) affect the exterior of the Premises or
(ii) adversely affect the structure (including without
limitation alterations or additions to the principal or
loadbearing walls floors beams columns roofs or
foundations) of the Premises or materially adversely affect
the Conduits or the central heating air conditioning
sprinkler electrical or other installations or the sanitary
or hot and cold water systems at the Premises
(iii) relate to the structural elements coloured orange on Plans
2 and 3
4.13.2 Not without the Landlord's written consent (not to be unreasonably
withheld or delayed and which shall be documented in substantially
the form of the draft Licence to Alter annexed hereto with such
amendments and additional provisions as the Landlord may
reasonably require having regard not only to the proposed works
but also to the requirements of institutional investors in
property similar to the Premises current for the time being in
relation to such matters) to make to the Premises any other
internal alterations or additions (whether structural or not)
PROVIDED THAT the Tenant may without obtaining the consent of the
Landlord instal alter and remove demountable partitioning (but for
the avoidance of doubt not varying the height or position of
raised floors or ceiling grids) and carry out associated minor
alterations to mechanical and electrical services in the Premises
and minor structural alterations in the nature of boreholes
conduit holes and such like provided the same are not in breach of
Clause 4.13.1 and such number (not exceeding eight) of copies as
the Landlord may require of the plans and other information
showing the layout of such partitioning and the details of such
alterations are deposited with the Landlord or its surveyors not
less than one month after commencement of the work
4.13.3 To maintain at all times a consistent external appearance in the
treatment of all windows in the Premises
4.13.4 Without prejudice to the foregoing not save in accordance with the
terms and conditions laid down by the Institution of Electrical
Engineers current at the time to make any alteration or addition
to the electrical installations in the Premises
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4.14 PRESERVATION OF EASEMENTS
4.14.1 Not to prejudice the acquisition of any right of light for the
benefit of the Premises by obstructing any window or opening or
giving any acknowledgement that the right is enjoyed by consent or
any other act or default of the Tenant
4.14.2 To preserve all rights of light and other easements enjoyed by the
Premises and not to permit or suffer anyone to acquire any right
of light or other easement or right over the Premises
4.14.3 To give the Landlord immediate notice if any easement enjoyed by
the Premises is obstructed or any new easement affecting the
Premises is made or attempted
4.14.4 All costs charges and expenses incurred in securing compliance
with the provisions of this Clause 4.14 shall be borne by the
Tenant
4.15 ALIENATION
4.15.1 Not to:
(i) assign or charge part only of the Premises nor to agree to
do so
(ii) part with the possession of the whole or part of the
Premises or agree to do so except by an assignment or
underletting permitted by this Clause 4.15
(iii) share the possession or occupation of the whole or any part
of the Premises except as permitted by this Clause 4.15
(iv) assign the whole of the Premises to any Group Company of
the Tenant where in the reasonable opinion of the Landlord
the financial standing of such Group Company is less than
that of the Tenant
4.15.2 (i) Not to assign or agree to assign the whole of the Premises unless:
(a) the circumstances and conditions set out in sub-clause
4.15.2.(ii) shall have been complied with or satisfied; and
(b) the Landlord has granted its consent such consent not to be
unreasonably withheld.
(ii) The circumstances and conditions referred to in Clause 4.15.2.(i)
are:
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(a) that the intended assignee enters into a direct covenant
with the Landlord to pay the rents and perform and observe
during the residue of the Term or until released pursuant
to the 1995 Act all the covenants and conditions on the
Tenant's part contained in this Lease
(b) that the Tenant who is to assign this Lease enters into an
Authorised Guarantee Agreement with the Landlord
guaranteeing the performance of the covenants and
conditions contained in this Lease by the intended assignee
incorporating the provisions set out in the Third Schedule
to the extent permitted by the 1995 Act but in addition
containing a provision for the release of the Tenant from
its further obligations under the Authorised Guarantee
Agreement (following written request by the Tenant) upon
the assignee producing properly and externally audited
accounts for the last 3 immediately preceding accounting
periods each of not more than 12 months showing that the
net assets of the assignee in the UK or in any country
within the European Community or in any jurisdiction where
reciprocal enforcement of judgement with England exists as
shown in the balance sheet forming part of the said audited
accounts for the said last three accounting periods as at
the end of each such period were not less than the annual
rent reserved by Clause 3.1 of this Lease at the rate
(disregarding any abatement) payable at the end of the last
such accounting period multiplied by a factor of 5 and that
the annual profits of the assignee in the UK or in any
country within the European Community or in any
jurisdiction where reciprocal enforcement of judgement with
England exists after tax as shown in the said audited
accounts for the said last three accounting periods are
each not less than the said annual rent multiplied by a
factor of 5 Provided that
(I) the Tenant shall be released immediately from its
obligations under this Lease and/or any such
authorised guarantee agreement if the tests set out
above are satisfied at the date of the proposed
assignment the Landlord will at the cost of the
Tenant within 28 days after written request
following satisfaction of the above requirements
execute a deed effective as from the date upon which
the requirements were satisfied in such form as the
Tenant may reasonably require confirming the release
of the
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liability of the Tenant under this Lease and or the
Authorised Guarantee Agreement as the case may be
(II) any such release shall be deferred until any other
arrears of rents or other monies properly due from
the Tenant have been paid to the Landlord
(c) that such other persons as the Landlord may reasonably
require act as guarantor for the intended assignee such
guarantee to be in the form set out in the Third Schedule
with such amendments only as the Landlord may reasonably
require; and
(d) that any intended assignee shall provide such other
security as the Landlord reasonably requires (including
without limitation a rent deposit incorporating a first
legal charge on the deposit monies) for the observance and
performance of the Tenant's covenants herein contained on
such terms as the Landlord reasonably requires; and
(e) that all arrears of rent and other monetary payments
properly due under the terms of this Lease have been paid
prior to completion of the intended assignment;
4.15.3 Not to underlet or agree to underlet part of the Premises other than a
Permitted Part and in this Clause 4.15:-
(i) PERMITTED PART means
(a) a whole floor of the Premises with Security of Tenure or
(b) (except for the basement and fifth floors) any part of any floor
of the Premises without Security of Tenure provided that there are
no more than two occupiers on any one floor of the Premises nor
more than ten occupiers in the Premises (in each case including
the Tenant but excluding any occupation under clause 4.15.6 of
this Lease) at any one time
(c) in the case of the basement floor the whole or part so long as it
is demised with a Permitted Part on another floor and so that the
demise of part only of the basement floor is without Security of
Tenure and provided that there are no more than four occupiers of
the basement floor (including the Tenant but excluding any
occupation under clause 4.15.6 of this Lease)
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in each case (unless the underlease is without Security of Tenure)
together with an appropriate proportion of the car parking,
disabled, bicycle and motor cycle spaces
(ii) SECURITY OF TENURE means that the lessees and occupiers of any
premises with Security of Tenure enjoy the benefit of Part II of
the Landlord and Tenant Act 1954 and without Security of Tenure
means that such lessees and occupiers have agreed in any
sub-underlease that the provisions of Sections 24-28 of the
Landlord and Tenant Act 1954 shall be excluded in relation to the
tenancy thereby created pursuant to a valid and effective Order of
the Court under the provisions of Section 38(4) of the said Act a
copy of which order shall have been produced to the Landlord
before the grant of the sub-underlease
4.15.4 Not to underlet or agree to underlet the whole of the Premises nor a
Permitted Part unless:-
(i) the rent payable under the underlease is:
(a) not less than the open market rent for the Premises (or in
the case of an underletting of a Permitted Part the open
market rental value of the Permitted Part) at the date of
the grant of the underlease without fine or premium
PROVIDED THAT the Tenant shall be permitted to grant to any
underlessee a rent-free period or periods or concessionary
rent period or other inducement in accordance with normal
market practice at the time of the grant of the underlease
(b) payable no more than one quarter in advance
(c) to be subject to upward only reviews at five yearly
intervals and (except only in the case of an underlease for
a term not exceeding five years without any option or right
to renew and granted without Security of Tenure)
contemporaneously with reviews under this Lease
(ii) the underlease is in a form first approved by the Landlord (whose
approval shall not be unreasonably withheld or delayed) and (so
far as is consistent with an underlease) substantially the same as
this Lease including without prejudice a covenant by the
undertenant in the same terms mutatis mutandis as that contained
in Clause 4.15.2 of this Lease and the right for the underlessor
to determine the term thereby granted on the Determination Date
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(iii) where an underletting of part of a floor of the Premises the
Permitted Part is of a layout and in a location first approved by
the Landlord (whose approval shall not be unreasonably withheld or
delayed)
(iv) if the underlease is for a term not exceeding five years it is
without Security of Tenure
(v) the undertenant covenants with the Landlord and in the underlease
(a) to observe and perform the lessee's covenants in the
underlease during the term of the underlease or until
released pursuant to the 1995 Act
(b) not to assign or charge part only of the underlet premises
or agree to do so nor to underlet share or part with
possession or occupation of any part of the underlet
premises provided that the undertenant may with the consent
of the Landlord and the Tenant (which shall in neither case
be unreasonably withheld or delayed) further underlet a
Permitted Part which is less than the whole of the underlet
premises subject to the following conditions:-
(I) there are no more than two occupiers (including the
undertenant but excluding any occupation permitted
under Clause 4.15.6 of this Lease) per floor on each
floor of the underlet premises nor more than ten
occupiers in the Premises at any one time
(II) any sub-underlease to contain a covenant by the
sub-undertenant not to underlet share or part with
possession or occupation of the whole or any part of
the sub-underlet premises in any manner whatsoever
other than by way of an assignment of the whole of
the sub-underlet premises with the consent of the
Tenant and the Landlord (not to be unreasonably
withheld or delayed);
(III) any sub-underlease of (or including) part of a floor
of the Premises to be without Security of Tenure and
a certified copy of an order of the court under the
provisions of Section 38(4) of the said Act shall be
produced to the Tenant and the Landlord in relation
to the intended sub-underlease
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(IV) any sub-undertenant to covenant with the Landlord
and the Tenant to observe and perform (so long as it
holds the sub-underlease) the tenant's covenants in
the sub-underlease
(c) not to assign or agree to assign or underlet the whole of
the underlet premises without the Landlord's prior written
consent (which shall not be unreasonably withheld or
delayed)
4.15.5 Subject and without prejudice to Clauses 4.15.3 and 4.15.4 not to
underlet the whole of the Premises nor a Permitted Part nor vary the
terms of any permitted underlease without the prior written consent of
the Landlord (which shall not be unreasonably withheld or delayed)
4.15.6 Notwithstanding the foregoing provisions of this sub-clause the Tenant
and any permitted undertenant may without the consent of the Landlord
share occupation of the whole or any part of the Premises with any Group
Company Associated Company or Affiliate of the Tenant or such permitted
undertenant Provided that:
(i) the relationship of landlord and tenant is not created and
(ii) the occupation by the Group Company Associated Company or
Affiliate ceases forthwith upon its ceasing to be a Group Company
Associated Company or Affiliate of the Tenant or such permitted
undertenant for the time being and
(iii) the Landlord is informed in writing on reasonable request of the
name of each occupier and due evidence that it is a Group Company
Associated Company or Affiliate
4.15.7 To take all necessary steps and proceedings to remedy any breach of the
covenants of the undertenant under the underlease which affects the
covenants by the Tenant hereunder or which otherwise affects the
Landlord's interest and not to permit any reduction of the rent payable
by any undertenant
4.15.8 To keep the Landlord informed of all rent review negotiations and not to
agree any new or revised rent without having first notified the Landlord
in writing at least 7 days earlier and within one month after agreement
or determination to notify the Landlord in writing of the rent so agreed
or determined
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4.16 REGISTRATION
Within 21 days to give to the Landlord's solicitors (or as the Landlord
may direct) written notice of any assignment charge underlease or other
devolution of the Premises together with a certified copy of the relevant
document and a reasonable registration fee of not less than (pound)30
4.17 STATUTORY REQUIREMENTS
To comply promptly with all notices served by any public local or
statutory authority and with the requirements of any present or future
statute or European Union law regulation or directive (whether imposed on
the owner or occupier) which affects the Premises or their use
4.18 PLANNING
4.18.1 To comply with the Planning Acts
4.18.2 Not to apply for or implement any planning permission or enter
into a planning obligation under Section 106 of the Town and
Country Planning Act 1990 affecting the Premises without first
obtaining the Landlord's written consent (such consent not to be
unreasonably withheld or delayed)
4.18.3 Where development permitted by a planning permission has begun the
Tenant shall complete all the works permitted and comply with all
the conditions imposed by the permission before the determination
of the Term including the carrying out of works stipulated to be
done whether before or after such determination
4.18.4 If the Landlord reasonably so requires to produce evidence to the
Landlord that the provisions of this Clause 4.18 have been
complied with
4.19 NOTICES
4.19.1 To supply the Landlord with a copy of any notice order or
certificate or proposal for any notice order or certificate
affecting or capable of affecting the Premises as soon as it is
received by or comes to the notice of the Tenant
4.19.2 At the request of the Landlord but at the joint cost of the
Landlord and the Tenant to make or join the Landlord in making
such objections or representations against or in respect of any
such notice order or certificate as the Landlord may reasonably
require
4.19.3 To give notice to the Landlord of any defect in the Premises which
might give rise to an obligation on the Landlord to do or refrain
from doing any act or thing in order to comply with the provisions
of this Lease or the duty of care imposed on the Landlord pursuant
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to the Defective Premises Act 1972 or otherwise and at all times
to display and maintain all necessary notices which the Landlord
may from time to time require to be displayed at the Premises
4.20 CONTAMINANTS AND DEFECTS
4.20.1 To give the Landlord immediate written notice (upon the Tenant
becoming aware of the same) of the existence of any contaminant
pollutant or harmful substance on or any defect in the Premises
4.20.2 If so requested by the Landlord to remove from the Premises or
remedy to the Landlord's reasonable satisfaction any such
contaminant pollutant or harmful substance other than any such
used in the proper and ordinary course of the Tenant's business or
normal occupation of the Premises for the Permitted Use
4.21 ENTRY BY LANDLORD
To permit the Landlord at all reasonable times and on reasonable notice
(except in emergency) to enter the Premises in order to
4.21.1 inspect and record the condition of the Premises
4.21.2 remedy any breach of the Tenant's obligations under this Lease
4.21.3 instal repair maintain clean alter replace add to or connect up to
any Conduits which serve the Adjoining Property
4.21.4 repair maintain or alter the Common Parts or the Adjoining
Property
4.21.5 comply with any of its obligations under this Lease
4.21.6 comply with the obligations on its part contained in the Superior
Lease notwithstanding that the obligation to comply with such
covenants may be imposed on the Tenant by this Lease
Provided that the Landlord shall (i) cause as little inconvenience as
reasonably practicable in the exercise of such rights and shall as soon
as reasonably practicable make good all physical damage to the Premises
(and any Tenant's chattels fixtures and fittings) caused by such entry
(ii) use all reasonable endeavours to avoid entering the occupied office
areas within the Premises during normal business hours unless otherwise
agreed by the Tenant (iii) agree in advance with the Tenant the number of
representatives of the Landlord and any others who accompany them
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who shall be permitted entry on any occasion (iv) allow the Tenant to
escort the Landlord's representatives at all times when they are within
the building on the Premises.
4.22 NOTICES TO REMEDY
To make good any failure to comply with Clauses 4.6 [repair] 4.7
[decoration] 4.12 [signs] 4.13 [alterations] 4.14 [preservation of
easements] 4.17 [statutory requirements] and 7.2.6 [insurers'
requirements] of which the Landlord has given written notice as soon as
reasonably practicable and in any event within 2 months after the date of
notice but without prejudice to the Landlord's other remedies
4.23 LANDLORD'S COSTS
To pay to the Landlord on demand as additional rent and as a debt all
costs (which shall be properly incurred and fair and reasonable) as it
may incur:
4.23.1 from any application for consent required by this Lease (including
where consent is lawfully refused or the application is withdrawn)
4.23.2 incidental to or in reasonable contemplation of the preparation
and service of a schedule of dilapidations (whether before or
within 6 months after expiry of the Term) or a notice or
proceedings under Section 146 or Section 147 of the Law of
Property Act 1925 (even if forfeiture is avoided other than by
relief granted by the Court)
4.23.3 in connection with the enforcement or remedying of any breach of
the covenants in this Lease on the part of the Tenant and any
Guarantor
4.23.4 incidental to or in reasonable contemplation of the preparation
and service of any notices under Section 17 of the 1995 Act
4.24 RELETTING NOTICES
To allow a letting or sale board to be displayed on the Premises in the
last six months of the Term unless the Tenant is exercising its rights
under the Landlord and Tenant Act 1954 (but not so that it restricts or
interferes unreasonably with the light enjoyed by the Premises) and to
allow prospective tenants or purchasers to view the Premises at
reasonable times on reasonable notice
4.25 YIELDING UP
4.25.1 Immediately before the end of the Term:
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(i) to give up the Premises repaired and decorated and
otherwise in accordance with the Tenant's covenants in this
Lease
(ii) If and to the extent that the Landlord so requires to
remove all alterations and additions which have been
permitted by the Landlord) and to reinstate the Premises to
the Landlord's reasonable satisfaction to the state set out
in the Specification Provided That the Tenant shall not be
required to reinstate any approved plant or equipment at
the Premises which adds to the letting value of the
Premises and does not detract from the value of the
Landlord's reversionary interest therein.
(iii) to remove all signs, tenant's fixtures and fittings and
other goods from the Premises and make good any damage
caused thereby to the Landlord's reasonable satisfaction
4.25.2 If the Tenant fails to comply with Clause 4.25.1 to pay to the
Landlord on demand as a debt any costs incurred by the Landlord in
reinstating the Premises
4.26 ENCUMBRANCES
To perform and observe the Encumbrances so far as they relate to the
Premises
4.27 SUPERIOR LEASE COVENANTS
To observe and perform the agreements covenants and stipulations on the
part of the tenant contained or referred to in the Superior Lease so far
as the same are not expressly assumed by the Landlord in this Lease and
not to do omit or suffer anything to be done whereby the Superior Lease
may be voided or forfeited and to indemnify and keep the Landlord
indemnified against all damages actions proceedings claims and demands in
any way relating thereto and not to do omit or suffer anything to be done
whereby the Superior Lease may be voided or forfeited
4.28 NEW GUARANTOR
Within five business days of the death during the Term of any Guarantor
or of such person committing or permitting an Act of Insolvency to give
notice of this to the Landlord and if so required by the Landlord at the
expense of the Tenant within thirty business days of such event to
procure some other person reasonably acceptable to the Landlord to
execute a guarantee in respect of the Tenant's obligations contained in
this Lease in the form of the Guarantor's covenants contained in the
Third Schedule
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4.29 CDM REGULATIONS
Without prejudice to any requirements hereunder for the Tenant to obtain
the Landlord's consent before carrying out any work upon the Premises the
Tenant shall in respect of any such work to which the Construction
(Design and Management) Regulations 1994 (THE CDM REGULATIONS) apply;
4.29.1 ensure that any person owing duties under the CDM Regulations
complies therewith;
4.29.2 make a declaration to the Health & Safety Executive in accordance
with Regulation 4 of the CDM regulations that it (and not the
Landlord) is the only "client" in respect of such work;
4.29.3 upon completion of any such work by the Tenant or any other party
supply to the Landlord (without charge and subject to an
irrevocable royalty free licence in favour of the Landlord and/or
its agents and any other person interested therein to use the same
for any purpose connected with the Premises) a copy of the health
and safety file relating to such work and any other information
relevant to health and safety; and
4.29.4 as soon as reasonably practicable after it becomes aware of any
information relevant to health and safety in relation to the
Premises provide such information to the Landlord.
5 LANDLORD'S COVENANTS
The Landlord covenants with the Tenant during the period in which the
immediate reversion to this Lease is vested in it as follows:
5.1 QUIET ENJOYMENT
That subject to the Tenant paying the rents reserved by and complying
with the terms of this Lease the Tenant may peaceably enjoy the Premises
during the Term without any interruption by the Landlord or any person
lawfully claiming under or in trust for it
5.2 SUPERIOR LEASE
5.2.1 To pay the rent reserved by the Superior Lease and to perform
(insofar as the Tenant is not liable for any such performance
under the covenants on its part herein contained) all the tenant's
covenants therein contained
5.2.2 At the reasonable request of the Tenant and at the joint cost of
the Landlord and the Tenant to use best endeavours to procure (a)
payment of the rent reserved by any lease
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superior to this Lease (other than the Superior Lease) and (b) the
performance of all covenants contained in any such lease or leases
(in so far as the Tenant is not liable for any such performance
under the covenants on its part herein contained).
5.2.3 Except in relation to Insurance (as to which Clause 7 applies)
upon receiving written notice from and at the expense of the
Tenant to take all reasonable steps to enforce the covenants on
the part of the Superior Landlord contained in the Superior Lease
and any other Lease superior to this Lease
5.2.4 To take all reasonable steps at the expense of the Tenant to
obtain the consent of the Superior Landlord whenever the Tenant
makes an application for any consent required hereunder where the
consent of both the Landlord and the Superior Landlord is needed
by virtue of this Lease and the Superior Lease except where the
Landlord proposes lawfully to refuse its consent
5.3 CONTRIBUTION TO COSTS
To pay to the Tenant within fourteen days of demand (and in default to
pay interest at 4% over Base Rate from the date of demand until the date
of payment) a fair and proper proportion reasonably and properly
allocated to the Restaurant of the reasonable costs and expenses properly
incurred by the Tenant
5.3.1 in the repair maintenance lighting cleaning and supervision and
the provision of such other services in relation thereto as the
Tenant shall from time to time reasonably consider necessary and
as shall be in accordance with the principles of good estate
management of the Restaurant Spaces the Loading Bay the Service
Area including the refuse compactor therein and the Service Ramp
and door and the costs of disposing of refuse including the
collection and compaction thereof and the maintenance of
receptacles and plant and equipment in connection therewith
5.3.2 in the maintenance of planters in the Common Parts and the plants
and trees therein, and
5.3.3 the maintenance inspection repair and renewal of the structural
elements shown coloured orange on Plans 2 and 3
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plus Value Added Tax and of any existing or future taxes charges
assessments and other outgoings payable in respect thereof and of
all charges assessments and outgoings for electricity gas oil and
other fuels payable in relation thereto
5.4 To indemnify the Tenant in respect of any Liability arising from any
injury caused to the structural elements coloured orange on Plans 2 and 3
or those structural elements within adjacent to above or below the
Restaurant by the act or default of the tenant or occupier of the
Restaurant and those under its or their control excluding (1) damage
caused by Insured Risks and (2) any consequential loss
6 The Landlord covenants that during the term hereby granted:
6.1 It shall not allow any use of the Restaurant to commence until the lessee
or other operator or occupier from time to time has provided the Tenant
with a deed of covenant in favour of the Tenant by which such lessee
operator or occupier covenants not to place any tables or chairs in the
Common Parts (other than those parts shown coloured yellow on Plan 9) and
to use all reasonable endeavours to ensure that patrons of the Restaurant
do not consume food or drink in the Common Parts (other than those parts
shown coloured yellow on Plan No 9) Provided that following the
commencement of the use of the Restaurant the Tenant may itself enforce
the provisions of such deed and the Landlord shall have no obligation or
liability for its enforcement or if there is any breach; and
6.2 It shall not without the consent of the Tenant (not to be unreasonably
withheld or delayed) having regard to the Landlord's obligations to
respond promptly to the Restaurant tenant) permit the use of the
Restaurant for any use other than as a high class restaurant or winebar
without any take-away facility for food or drinks.
7 INSURANCE
7.1 LANDLORD'S INSURANCE COVENANTS
The Landlord covenants with the Tenant as follows:
7.1.1 At the joint cost of the Landlord and the Tenant to enforce the
covenants as to insurance of the Premises on the part of the
Superior Landlord contained in the Superior Lease and if the
Tenant so requires and at the joint cost (without prejudice to the
Tenant's covenants under clause 7.2) of the Landlord and the
Tenant to use its best endeavours to procure that the Superior
Landlord adds any risks specified by the
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Tenant to the insurance policy including terrorist risk unless
insurance against terrorist risks is unavailable
7.1.2 To insure against loss of the Principal Rent and the Service
Charge and VAT payable or reasonably estimated by the Landlord to
be payable under this Lease arising from damage to the Premises by
the Insured Risks for four years or such longer period as the
Landlord may reasonably require having regard to the likely period
for reinstating the Premises
7.1.3 At the reasonable request and cost of the Tenant to produce
evidence of the terms of the insurance under this Clause 6.1 (or
an extract thereof showing that the policy is in force and its
terms)
7.1.4 If
(i) the Premises are destroyed or damaged by an Insured Risk or
(ii) the whole or substantially the whole of the Premises are
destroyed or damaged by an act of terrorism or other risk
against which in either case the Landlord has been unable
to procure insurance
then, subject to obtaining all necessary planning and other
consents to reinstate the same (other than tenant's and trade
fixtures and fittings) as quickly as reasonably practicable
substantially as they were before the destruction or damage in
modern form if appropriate but not necessarily identical in
layout;
7.1.5 Reinstatement following damage by an act of terrorism or other
risk against which in either case the Landlord has been unable to
procure insurance other than in the circumstances whereby clause
7.1.4(ii) applies shall be the responsibility of the Tenant who
shall carry out the same as quickly as reasonably practicable to
the reasonable satisfaction of the Landlord
7.2 TENANT'S INSURANCE COVENANTS
The Tenant covenants with the Landlord throughout the Term or until released
pursuant to the 1995 Act as follows:
7.2.1 To pay to the Landlord within 14 days of demand sums equal to:
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(i) a fair proportion (to be reasonably and properly determined
by the Landlord's Surveyors) in respect of insurance of the
Premises of the amount paid by the Landlord to the Superior
Landlord pursuant to Clause 2(4)(a) of the Superior Lease
in relation to the Premises and the Restaurant
(ii) the cost of any professional valuation of the Premises
properly required by the Landlord (but not more than once
in any two year period)
7.2.2 To pay to the Landlord within 14 days of demand the whole of the
amount (before deduction of any commission or allowance) which the
Landlord spends on insurance pursuant to Clause 7.1.2
7.2.3 To give the Landlord immediate written notice on becoming aware of
any event or circumstances which could reasonably be expected to
affect or lead to an insurance claim
7.2.4 Not to do anything at the Premises which would or might prejudice
or invalidate the insurance of the Premises or the Adjoining
Property nor (unless the Tenant shall have previously notified the
Landlord and agreed to pay the increased premium) cause the
insurance premium to be increased
7.2.5 To pay to the Landlord within 14 days of demand:
(i) any increased premium and any Liability incurred by the
Landlord as a result of a breach of Clause 7.2.4
(ii) any reasonable uninsured excess to which the insurance
policy may be subject and which is normal for policies in
relation to properties of this type
(iii) the whole of any irrecoverable proportion of the insurance
moneys except only to the extent that it is irrecoverable
because of the act or omission of the Landlord
7.2.6 To comply with the requirements and reasonable recommendations
made by the insurers
7.2.7 To notify the Landlord of the full reinstatement cost of any
fixtures and fittings installed at the Premises at the cost of the
Tenant which become Landlord's fixtures and fittings
7.2.8 To effect adequate insurance cover against damage to or
destruction of the Tenant's fixtures and fittings at the Premises
(or any part thereof)
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7.2.9 Not to effect any insurance of the Premises against an Insured
Risk other than as specified in Clause 7.2.8 but if the Tenant
effects or has the benefit of any such insurance against the
Insured Risks the Tenant shall hold such moneys upon trust for the
Landlord and pay the same to the Landlord as soon as practicable
7.3 SUSPENSION OF RENT AND DETERMINATION
7.3.1 If the Premises are unfit for occupation and use because of damage
by an Insured Risk or because of damage or destruction of the
whole or substantially the whole of the Premises by an act of
terrorism or other risk against which in either case the Landlord
has been unable to procure insurance then (save to the extent
that, where the damage is due to an Insured Risk, payment of the
loss of rent insurance moneys is refused due to the act or default
of the Tenant or any undertenant) the Principal Rent (or a fair
proportion of it according to the nature and extent of the damage)
shall be suspended until the date on which the Premises are again
fit for occupation and use.
7.3.2 If the Premises are not again fit for occupation and use by the
date being 4 years after the date of such damage or destruction
referred to in clause 7.3.1 either the Landlord or the Tenant may
within 3 months thereafter (but not after the Premises are again
fit for occupation and use) determine the Term by giving to the
other not less than 6 nor more than 7 months notice in writing
7.3.3 Any dispute relating to this Clause 7.3 shall be referred to
Arbitration
7.4 TERMINATION OF SUPERIOR LEASE
If this Lease shall be subsisting at any time when the Superior Lease has
for any reason ceased to exist then with effect from the date of such
cesser:-
7.4.1 subject to the following provisions of this Clause, the covenants
and provisions of the Superior Lease incorporated herein by
reference shall nevertheless continue in force by reference to the
terms of the Superior Lease;
7.4.2 the Landlord shall observe and perform the covenants relating to
insurance on the part of the Superior Landlord contained in the
Superior Lease as if they were set out in full herein (mutatis
mutandis) as provisions of this Lease, and Clauses 7.1.1 and 7.2.1
shall cease to have effect;
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7.4.3 the provisions of clause 7.2.1 shall be varied so as to refer
to costs incurred by the Landlord in effecting insurance
pursuant to clause 7.4.2 above.
7.5 DESTRUCTION BY ACT OF TERRORISM OR OTHER UNINSURED RISK
If the whole or substantially the whole of the Premises are destroyed or
damaged by an act of terrorism or other risk against which in either case
the Landlord (despite having used its best endeavours) has been unable to
procure insurance then the Landlord may by notice in writing to that
effect given to the Tenant within six months from the date of such damage
or destruction terminate this Lease within immediate effect (without
prejudice to any right of either party in respect of any antecedent
breach) Provide That if following receipt of such notice from the
Landlord the Tenant services a counter-notice upon the Landlord
requesting a new tenancy pursuant to the Landlord and Tenant Act 1954
then the rent suspension provisions set out in clause 7.3.1 shall cease
to operate from the date of service of such counter-notice unless and
until such counter-notice and any related applications or proceedings are
withdrawn or terminated.
8 PROVISOS
8.1 FORFEITURE
If any of the following events occurs:
8.1.1 the Tenant fails to pay any of the rents payable under this Lease
within 28 days of the due date (whether or not formally demanded)
or
8.1.2 the Tenant or Guarantor breaches any of its obligations in this
Lease or
8.1.3 execution or distress is levied on the Tenant's goods in the
Premises or
8.1.4 the Tenant or Guarantor being a company incorporated within the
United Kingdom
(i) has an Administration Order made in respect of it or
(ii) passes a resolution or makes an Order for the winding up of
the Tenant or the Guarantor otherwise than a member's
voluntary winding up of a solvent company for the purpose
of amalgamation or reconstruction or
(iii) a receiver or administrative receiver or receiver and
manager is appointed over the whole or any part of its
property assets or undertaking or
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(iv) is struck off the Register of Companies or is dissolved or
ceases to exist under the laws of the country or state of
its incorporation or
(v) is deemed unable to pay its debts within the meaning of
Section 123 of the Insolvency Act 1986 or
8.1.5 proceedings or events analogous to those described in Clause 8.1.4
shall be instituted or shall occur where the Tenant or Guarantor
is a company incorporated outside the United Kingdom
8.1.6 the Tenant or Guarantor being an individual
(i) has a bankruptcy order made against him
(ii) appears to be unable to pay his debts within the meaning of
Section 268 of the Insolvency Act 1986
then the Landlord may re-enter the Premises or any part of the Premises
in the name of the whole and forfeit this Lease and the Term created by
this Lease shall immediately end but without prejudice to the rights of
any party in respect of any breach of the obligations contained in this
Lease
8.2 NOTICES
8.2.1 Any notice is validly given if it is in writing and either
delivered to the recipient by hand or sent by registered or
recorded delivery post addressed to the recipient at the address
given in this Lease in the case of the Tenant while this Lease is
vested in Goldman Sachs International only addressed for the
attention of The Facilities Manager or such other address as may
have been notified in writing with reference being made in such
notification to this clause of this Lease.
8.2.2 Any notice sent by registered or recorded delivery post shall be
treated as having been served on the third working day after the
date of posting
8.3 ARBITRATION
8.3.1 Where this Lease provides for reference to Arbitration then
reference shall be made in accordance with the Arbitration Act
1996 to a single arbitrator being a partner in or a director of a
leading London firm or company of Chartered Surveyors who is
experienced in the letting and/or rental valuation of office
premises in the City of
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London to be agreed between the Landlord and the Tenant or in the
absence of agreement nominated on the application of either party
by the President for the time being of the Royal Institution of
Chartered Surveyors ("the President")
8.3.2 In the absence of a determination by the arbitrator as to his fees
they shall be borne equally by the Landlord and the Tenant
8.3.3 If the arbitrator is ready to make his award but is unwilling to
do so due to either the Landlord's or the Tenant's failure to pay
its share of the costs in connection with the award the other
party may serve on the defaulting party a notice requiring the
that party to pay such costs within 14 days and if the defaulting
party fails to comply with such notice the other may pay to the
arbitrator the defaulting party's costs and any amount so paid
shall be a debt due forthwith from the defaulting party to the
other
8.3.4 If the arbitrator fails to give notice of his determination of if
he dies is unwilling to act or becomes incapable of acting or if
for any other reason he is unable to act either such party may
request the President to discharge the arbitrator and appoint
another arbitrator in his place to act in the same capacity which
procedure may be repeated as many times as necessary
8.4 NO IMPLIED EASEMENTS
This Lease does not include any rights over the Adjoining Property except
those mentioned in Part I of the First Schedule and Section 62 of the Law
of Property Act 1925 is excluded from this Lease
8.5 NO WARRANTY
The Landlord does not warrant that the Permitted Use complies with the
Planning Acts
8.6 SUPERIOR LEASE
If there shall be any conflict between the terms of the Superior Lease
and the terms of this Lease then the terms of the Superior Lease shall
pro tanto prevail
8.7 DISCLAIMER
The Landlord shall not (save in the case of its negligence) be
responsible for any loss accident or damage sustained at the Premises nor
shall the Tenant have any claim against the Landlord for any stoppage of
or interruption in the provision of any services or for obstruction or
interruption of any easement or right granted by this Lease by any reason
outside the reasonable control of the
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Landlord or by any works of alteration repair or replacement or by the
maintenance of the plant machinery or installations provided the Landlord
is using all reasonable efforts to restore the services in question to
minimise the obstruction or interruption and any nuisance hereby caused
to the Tenant.
8.8 TENANT'S OPTION TO DETERMINE
If (but only if) the Tenant shall
8.8.1 give to the Landlord not less than 12 months and 3 days nor more
than 18 months prior notice in writing that the Tenant desires to
determine the Term on the Determination Date (it being hereby
agreed that any such notice shall be deemed to be irrevocable
whether or not expressed as such) and
8.8.2 have paid the rent reserved by Clause 3 up to the Determination
Date and
8.8.3 yield up the whole of the Premises in accordance with Clause 4.25
and with vacant possession on the Determination Date (Provided
that the Landlord may in its absolute discretion waive any of the
requirements in this Clause 8.8 but without prejudice to its
rights and remedies as a result of the Tenant's failure to fulfil
such requirements)
the Term shall cease and determine on the Determination Date but without
prejudice to any party's rights as a result of any antecedent breach
8.9 JURISDICTION AND SERVICE
8.9.1 Each of the parties hereto irrevocably agrees for the benefit of
each of the other parties hereto that the place of performance of
the obligations under or pursuant to this Lease shall be England
and that the Courts of England shall have jurisdiction to hear and
determine any suit action or proceedings and to settle any
disputes which may arise out of or in connection with this Lease
and for such purposes irrevocably submits to the jurisdiction of
such Courts
8.9.2 The submission to the jurisdiction of the Courts referred to in
Clause 8.9.1 hereof shall not (and shall not be construed so as
to) limit the rights of the Landlord to take proceedings against
the Guarantor or the Surety in any other court of competent
jurisdiction nor shall the taking of proceedings in any one or
more jurisdictions preclude the taking of proceedings in any other
jurisdiction whether concurrently or not
8.9.3 The Landlord the Tenant and the Guarantor each hereby irrevocably
agrees that
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(i) any process issued out of the High Court may for the
purposes of the Rules of the Supreme Court of England an
any notices to be served on it under this Lease may for the
purposes of this Lease be served on it in each such case by
leaving a copy by ordinary post addressed to it at the
address for service in England and Wales hereinbefore
specified or at such other address in England and Wales of
which the party to be served shall have received a notice
which itself complies in all respects with Clause
8.9.3.(ii)
(ii) any notice of change of address for service to be given by
the Landlord the Tenant and the Guarantor shall
(a) be given in writing
(b) specify the date of this Lease and the parties
hereto
(c) contain the full address of the Premises
(d) specify the last applicable address for service
hereunder either as hereinbefore specified or (as
the case may be) as last notified pursuant to Clause
8.9.3.(i) and the date of such notification and
(e) specify the new address in England and Wales for
such service as aforesaid and the date (being not
earlier than 14 days after delivery of such notice)
from which the same shall apply
and any purported notice which fails in any respect to
comply with any of the provisions of this Clause 8.9.3(ii)
shall not constitute due notice of change of address for
service for the purposes of this Clause 8.9.3(ii)
(iii) Any such service of process or notice pursuant to Clause
8.9.3.(i) shall be deemed to have been completed two days
after posting of such process or notice or upon personal
delivery
8.9.4 The Landlord the Tenant and the Guarantor each hereby irrevocably
consents generally in respect of any legal action or proceeding
arising out of or in connection with this Lease to the giving of
any relief or the issue of any process in connection with such
action or proceeding including (without limitation) the making
enforcement or execution
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against any property whatsoever and wheresoever (irrespective of
its use or intended use) of any order or judgment which may be
given in such suit action or proceeding
8.9.5 To the extent that the Landlord the Tenant or the Guarantor may in
any jurisdiction claim for itself or its assets immunity from suit
execution attachment (whether in aid of execution before judgment
or otherwise) or other legal process and to the extent that in any
such jurisdiction there may be attributed to them or its assets
such immunity (whether or not claimed) the Landlord the Tenant and
the Guarantor each hereby irrevocably agrees not to claim and
hereby irrevocably waives such immunity to the full extent
permitted by the laws of such jurisdiction
9 GUARANTEE
The Guarantor covenants with the Landlord for the Term in the terms set
out in the Third Schedule
EXECUTED by the parties as a DEED the day and year first before written.
THE FIRST SCHEDULE
PART I
EASEMENTS AND OTHER RIGHTS GRANTED
1 Subject to obtaining the consent of the Landlord (such consent not to be
unreasonably withheld or delayed) and subject to obtaining all necessary
planning and other statutory consents (and complying with any conditions
specified in such consents) the right to erect and maintain any number of
aerials or satellite dishes on the roof of the Premises. (subject to
compliance with any regulations relating thereto laid down from time to
time by the Corporation of London)
2 The right to instal plant on the roof of the Premises subject to the same
qualifications as in paragraph 1 above
3 The right to enter the Restaurant at reasonable times on reasonable prior
notice (except in the case of emergency) to enable the Tenant to carry
out its obligations under this Lease in relation to the structural
elements coloured orange on Plans 2 and 3
4 The right of protection from the Adjoining Property and the right of
support from the Adjoining Property as now enjoyed
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PART II
EXCEPTIONS AND RESERVATIONS
There are excepted and reserved to the Landlord and all persons
authorised by it:
1 The right to carry out or consent to the carrying out by any person of
any erection of a new building or the rebuilding demolition or altering
of the Adjoining Property notwithstanding its effect on the light and air
enjoyed by the Premises provided that the Tenant's use and enjoyment of
the Premises is not materially prejudiced
2 Rights of entry onto the Premises as referred to in Clause 4.21
3 The right of support and protection for the Adjoining Property as now
enjoyed
4 The right of way on foot and with vehicles over and along and otherwise
to use the Service Ramp and the Service Area for vehicles for the
purposes of access to and egress from the Restaurant Spaces and the
Loading Bay and for persons for all purposes reasonably connected with
the use and occupation of the Restaurant (but not members of the public
nor patrons of the Restaurant) subject to such reasonable regulations in
relation thereto as the Tenant may from time to time make and notify to
the Landlord in relation thereto
5 The Restaurant Spaces subject to such regulations as aforesaid
6 Subject to the Tenant's reasonable security requirements being satisfied,
of way on foot and in emergencies only over and along the access way
shown coloured brown on Plan No 5 annexed
7 Of free passage and running of water soil gas and electricity and other
services through the Conduits which now or may hereafter during the Term
pass through along under or over the Premises and which serve the
Adjoining Property together with the right on giving reasonable notice
(except in emergency) to enter and remain on the Premises to inspect
maintain and repair any such Conduits making good all damage caused by
such entry
8 The right to load and unload vehicles delivering goods to and from the
Restaurant from the Loading Bay subject to such reasonable regulations in
relation thereto as the Tenant may make and notify to the Landlord and
the lessee of the Restaurant
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9 A right from time to time to install new Conduits within the area
coloured yellow on Plan 5 subject to the person installing such new
Conduits complying with the safety, security and other reasonable
requirements of the Tenant
10 The right for the Restaurant to use the refuse compactor (if any) within
the Service Bay subject to regulations as aforesaid
11 The right to use the Common Parts subject to regulations as aforesaid
12 A right from time to time to make alterations to the structural elements
shown coloured orange on Plans 2 and 3 subject to the Tenant's approval
not to be unreasonably withheld or delayed
PART III
ENCUMBRANCES
1 Entries 2, 3, 4 8 9 and 10 on the Charges Register of Title Number NGL
604815 as shown on office copies dated 17 February 1998 Licence to place
memorial statute dated 24 September 1991 between the Mayor and Commonalty
and Citizens of the City of London (1) English Property Corporation plc
(2) and the Trustees of the Blitz Memorial Statue (3)
2 Deed of Covenant in respect of underground telegraphs dated 29 April 1969
between the Corporation of London (1) Metropolitan Provincial Properties
Limited (2) Ralli Brothers (Bankers) Limited (3) and HM Postmaster
General (4)
3 Agreement relating to City Walkway and Lift Works dated 25 September 1995
between the Mayor and Commonalty and Citizens of the City of London (1)
English Property Corporation plc (2) MEPC plc (3)
PART IV
SUPERIOR LEASE
DATE PARTIES TERM PREMISES
[ ] The Mayor and Community 150 years from One Carter Lane and Two
and Citizens of the City of [ ] Old Change Court London
London (1) EC4 shown edged red on the
the Landlord (2) plan attached to the
Superior Lease
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THE SECOND SCHEDULE
(RENT REVIEW)
1 In this Schedule:
1.1 REVIEW DATE means each of the Rent Review Dates mentioned in the
Particulars and RELEVANT REVIEW DATE shall be interpreted accordingly
1.2 RACK RENTAL VALUE means the annual rent (exclusive of VAT) at which the
Premises might reasonably be expected to be let in the open market at the
Relevant Review Date
ASSUMING
1.2.1 the letting is on the same terms as those contained in this Lease
but subject to the following qualifications:
(i) the term shall be one of 10 years commencing on the
Relevant Review Date
(ii) the amount of the Principal Rent shall be disregarded but
it shall be assumed that the principal rent is subject to
review on the terms of and at the same intervals as the
Principal Rent under this Lease
1.2.2 the Premises are available to let as a whole with vacant
possession by a willing landlord to a willing tenant without
premium
1.2.3 the Premises have been constructed at the Landlord's expense in
accordance with the Specification
1.2.4 all the covenants contained in this Lease have been fully
performed and observed
1.2.5 no work has been carried out to the Premises by the Tenant or any
undertenant which has reduced the rental value of the Premises.
1.2.6 if the whole or any part of the Premises or any access thereto has
been destroyed or damaged it has been fully reinstated.
BUT DISREGARDING
1.2.7 any goodwill attached to the Premises by reason of any business
carried on there
1.2.8 any effect on rent of the fact that any Tenant and any undertenant
is or has been in occupation of the Premises
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1.2.9 any effect on rent of any improvements at the Premises made with
the Landlord's consent by the Tenant or any undertenant except
improvements carried out pursuant to an obligation to the Landlord
or at the expense of the Landlord (and the Landlord and the Tenant
hereby agree for the avoidance of doubt that the Category "A"
Works shall not be disregarded on any review of the Principal Rent
payable hereunder)
Provided that the Rack Rental Value shall be that which would be payable
after the expiry of any rent free period or concessionary rent period for
fitting out purposes and after receipt of any contribution to fitting-out
works or other inducement relative to fitting out which might be made on
a letting of the Premises so that no discount reduction or allowance is
made to reflect (or compensate the tenant for the absence of) any such
rent free or concessionary rent period or contribution or other
inducement in respect of fitting out;
2 The Principal Rent shall be reviewed on each Review Date to the higher
of:
2.1 the Principal Rent payable immediately before the Relevant Review Date
(disregarding any suspension or abatement of the Principal Rent) and
2.2 the Rack Rental Value on the Relevant Review Date agreed or determined in
accordance with this Lease
3 The Rack Rental Value at any Review Date shall be:
3.1 agreed in writing between the Landlord and the Tenant or
3.2 determined by Arbitration on the application of either Landlord or Tenant
at any time not earlier than three months before the Relevant Review Date
4 If a Rack Rental Value is not agreed or determined by the Relevant Review
Date
4.1 the Principal Rent payable immediately before the Relevant Review Date
shall continue to be payable until the Rack Rental Value is ascertained
4.2 when the Rack Rental Value is ascertained
4.2.1 the Tenant shall pay within 14 days of ascertainment:
(i) any difference between the Principal Rent payable
immediately before the Relevant Review Date and the
Principal Rent which would have been payable had the Rack
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Rental Value been ascertained on the Relevant Review Date
("the Balancing Payment") and
(ii) interest on the Balancing Payment at Base Rate from the
date or dates when the same would have been payable had the
Rack Rental Value been ascertained on the Relevant Review
Date
4.2.2 the Landlord and Tenant shall sign and exchange a memorandum
recording the agreed amount of the Principal Rent payable on and
from the Relevant Review Date and each party shall bear its own
costs in relation to the memorandum
5 If at any Relevant Review Date the operation of the rent review
provisions in this Lease or the normal collection and retention by the
Landlord of any increase in the rent is prohibited or modified by statute
the Landlord may elect at any time that the day next following the date
on which any relaxation of such statute takes effect shall be substituted
for the Relevant Review Date
6 Time shall not be of the essence for the purposes of this Schedule
THE THIRD SCHEDULE
(GUARANTEE)
1 The Guarantor covenants with the Landlord as principal debtor that
throughout the Term or until the Tenant is released from its covenant
pursuant to the 1995 Act the Tenant will pay the rents reserved by and
perform its obligations contained in this Lease
2 Without prejudice to paragraph 5 the liability of the Guarantor shall be
no greater than it would have been if the Guarantor had been the Tenant
(except for additional costs arising from the enforcement of the
guarantee) but shall not be affected by:
2.1 Any time given to the Tenant or any failure by the Landlord to enforce
compliance with the Tenant's covenants and obligations
2.2 The Landlord's refusal to accept rent at a time when it would or might
have been entitled to reenter the Premises
2.3 Any variation of the terms of this Lease
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2.4 Any change in the constitution structure or powers of the Guarantor the
Tenant or the Landlord or the administration liquidation or bankruptcy of
the Tenant or Guarantor
2.5 Any act which is beyond the powers of the Tenant
2.6 The surrender of part of the Premises
2.7 The transfer of the reversion expectant on the Term
2.8 Any other act or thing (other than the default of the Landlord) by which
(but for this provision) the Guarantor would have been released
3 Where the Guarantor is more than one person the release of one or more of
them shall not release the others
4 The Guarantor shall not be entitled to participate in any rental deposit
held by the Landlord in respect of the Tenant's obligations or stand in
the Landlord's place in respect of such rental deposit
5 If this Lease is disclaimed or forfeited and if the Landlord within 6
months of receipt of the notice of disclaimer and forfeiture requires in
writing the Guarantor will (at the option of the Landlord) either
5.1 enter into a new lease of the Premises at the cost of the Guarantor on
the terms of this Lease (but as if this Lease had continued and so that
any outstanding matters relating to rent review or otherwise shall be
determined as between the Landlord and the Guarantor) for the residue of
the Term from and with effect from the date of the disclaimer or
forfeiture or
5.2 pay to the Landlord on demand an amount equal to the moneys which would
otherwise have been payable under the Lease until the earlier of 6 months
after the disclaimer or forfeiture and the date on which the Premises are
fully relet
6 The Guarantor may not assign its rights or delegate its obligations under
this Guarantee in whole or in part (and any purported assignment or
delegation is void) except for an assignment of all the Guarantor's
rights and obligations hereunder in whatever form the Guarantor
determines may be appropriate to a partnership, corporation, trust or
other organisation in whatever form (the "SUCCESSOR") that succeeds to
all or substantially all of the Guarantor's assets and business and that
assumes such obligations by contract, operation of law or otherwise. Upon
any such assignment and assumption of obligations the Guarantor shall
give written notice thereof to the
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Landlord and subject to the Landlord having received in a form reasonably
satisfactory to the Landlord, a deed executed by the Successor
(accompanied by a legal opinion in a form reasonably satisfactory to the
Landlord addressed to the Landlord from a reputable firm of lawyers in
the relevant jurisdiction confirming inter alia validity and due
execution) whereby the Successor assumes and covenants with the Landlord
to perform all outstanding and future obligations of the Guarantor under
this Agreement, whether such assumption is by operation of law or by
virtue of such deed, the Guarantor shall be relieved of and fully
discharged from all obligations hereunder, whether such obligations arose
before or after such delegation and assumption, but without prejudice to
the antecedent breach.
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ON COUNTERPART
THE COMMON SEAL of BRITEL FUND )
TRUSTEES LIMITED was hereunto )
affixed in the presence of: )
Authorised Signing Officer _______________________________
Authorised Signing Officer _______________________________
THE COMMON SEAL of GOLDMAN
SACHS INTERNATIONAL
was hereunto affixed in the presence of:
Director _______________________________
Secretary _______________________________
THE GOLDMAN SACHS GROUP _______________________________
L.P. by The Goldman Sachs
Corporation
by
Executive Vice President
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