EXHIBIT 10 (xxviii)(3)
abcdefg
UNDERLEASE
HERON QUAYS (HQ4) T1 LIMITED
and
HERON QUAYS (HQ4) T2 LIMITED
and
CANARY WHARF MANAGEMENT LIMITED
and
THE NORTHERN TRUST COMPANY
TERM COMMENCES : 1 April 2002
YEARS : 20 years
TERM EXPIRES : 31 March 2022
RENT : (pounds)2,347,312 p.a. exclusive of VAT (subject to review)
Level B1M and Floors 9-11 of Building HQ4 50 Bank Street Canary Wharf London
E14
2002
CONTENTS
CLAUSE PAGE
1. DEFINITIONS ................................................................................. 1
2. INTERPRETATION .............................................................................. 6
3. DEMISE AND RENTS ............................................................................ 7
4. TENANT'S COVENANTS .......................................................................... 8
4.1 Rents ....................................................................................... 8
4.2 Interest on arrears ......................................................................... 8
4.3 Outgoings ................................................................................... 9
4.4 Utility authorities ......................................................................... 9
4.5 Repairs ..................................................................................... 10
4.6 Plant and machinery ........................................................................ 10
4.7 Decorations ................................................................................. 10
4.8 Cleaning .................................................................................... 10
4.9 Not Used .................................................................................... 10
4.10 Yield up .................................................................................... 10
4.11 Rights of entry by Landlord and the Management Company ...................................... 11
4.12 To comply with notices ...................................................................... 11
4.13 Overloading floors and services and installation of wiring etc .............................. 11
4.14 Pipes ....................................................................................... 12
4.15 Cooking ..................................................................................... 12
4.16 Dangerous materials and use of machinery .................................................... 12
4.17 Heating cooling and ventilation and other systems ........................................... 12
4.18 User ........................................................................................ 12
4.19 Alterations signs and visual amenity ........................................................ 13
4.20 Works carried out to the Demised Premises ................................................... 14
4.21 Alienation .................................................................................. 14
4.22 Registration of dispositions ................................................................ 19
4.23 Disclosure of information ................................................................... 19
4.24 Landlord's costs ............................................................................ 19
4.25 Statutory requirements ...................................................................... 19
4.26 Planning Acts ............................................................................... 20
4.27 Statutory notices ........................................................................... 21
4.28 Defective premises .......................................................................... 21
4.29 Fire precautions and equipment etc .......................................................... 21
4.30 Encroachments and easements ................................................................. 21
4.31 Reletting and sale notices .................................................................. 22
4.32 Indemnity ................................................................................... 22
4.33 Value Added Tax ............................................................................. 22
4.34 Regulations ................................................................................. 23
4.35 Covenants affecting reversion ............................................................... 24
4.36 Landlord and Tenant (Covenants) Act 1995; Landlord's Release ................................ 24
5. MANAGEMENT COMPANY'S COVENANTS .............................................................. 24
6. LANDLORD'S COVENANTS ........................................................................ 24
6.1 Quiet Enjoyment ............................................................................. 24
6.2 Management Company's Obligations ............................................................ 24
6.3 Superior Title .............................................................................. 24
6.4 Value Added Tax ............................................................................. 24
6A. DEFECTS ..................................................................................... 25
7. INSURANCE ................................................................................... 25
7.1 Landlord to insure .......................................................................... 25
7.2 Commissions and restriction on Tenant insuring .............................................. 26
7.3 Landlord's fixtures and Tenant's Insured Fittings ........................................... 26
7.4 Landlord to produce evidence of insurance ................................................... 27
7.5 Cesser of rent .............................................................................. 27
7.6 Destruction of the Building ................................................................. 27
7.7 Option to determine ......................................................................... 28
7.8 Payment of insurance moneys refused ......................................................... 29
7.9 Insurance becoming void ..................................................................... 29
7.10 Requirements of insurers .................................................................... 29
7.11 Notice by Tenant ............................................................................ 29
7.12 Benefit of other insurances ................................................................. 29
7.13 Uninsured Risks ............................................................................. 29
7.14 Suspension of Rent Free Period .............................................................. 30
8. PROVISOS .................................................................................... 30
8.1 Forfeiture .................................................................................. 30
8.2 No implied easements ........................................................................ 31
8.3 Exclusion of warranty as to user ............................................................ 31
8.4 Landlord's and Management Company's obligations ............................................. 31
8.5 Exclusion of Landlord's and Management Company's liability .................................. 31
8.6 Right for Landlord to perform or to nominate another company to perform Management Company's
obligations ................................................................................. 32
8.7 Development of Adjoining Property ........................................................... 32
8.8 Use of premises outside Business Hours ...................................................... 33
8.9 Notices ..................................................................................... 33
8.10 Invalidity of certain provisions ............................................................ 33
8.11 Plans drawings etc .......................................................................... 34
8.12 Confidentiality provision ................................................................... 34
8.13 Waiver etc. of regulations .................................................................. 35
8.14 Third Party Rights .......................................................................... 35
8.15 Applicable Law and Jurisdiction ............................................................. 35
8.16 Representations ............................................................................. 35
8.17 Provisions as to Entry ...................................................................... 35
9. SERVICE CHARGE .............................................................................. 36
10. NEW TENANCY ................................................................................. 43
FIRST SCHEDULE .................................................................................... 44
Rights Granted .................................................................................... 44
1. Estate Common Parts ......................................................................... 44
2. Pipes ....................................................................................... 44
3. Common Parts of the Building ................................................................ 44
4. Entry to other parts of the Building ........................................................ 45
5. Support ..................................................................................... 45
6. Car Parking ................................................................................. 45
7. Bicycles and Motorcycles .................................................................... 46
8. List of tenant's names ...................................................................... 46
9. Reception Area .............................................................................. 46
10. Affixing of items to the structure of the Building .......................................... 46
11. Mechanical Space ............................................................................ 46
12. Telecommunications Equipment ................................................................ 46
13. Naming of the Building ...................................................................... 48
SECOND SCHEDULE ................................................................................... 49
Exceptions and Reservations ....................................................................... 49
1. Pipes ....................................................................................... 49
2. Entry .............................................................................................. 50
3. Scaffolding ........................................................................................ 50
4. Light and air etc. ................................................................................. 50
5. Support ............................................................................................ 50
6. Building on the Adjoining Property ................................................................. 51
7. Alteration of Common Parts ......................................................................... 51
8. Use of Estate Common Parts and Common Parts of the Building ........................................ 51
THIRD SCHEDULE .......................................................................................... 52
Rent Reviews ............................................................................................ 52
1. Definitions ........................................................................................ 52
2. The Rent ........................................................................................... 54
3. Agreement or determination of the Open Market Rent ................................................. 54
4. Deemed Open Market Rent ............................................................................ 54
5. Appointment of Surveyor ............................................................................ 54
6. Fees of Surveyor ................................................................................... 55
7. Appointment of new surveyor ........................................................................ 55
8. Interim payments pending determination ............................................................. 55
9. Rent Restrictions .................................................................................. 55
10. Memoranda of reviewed rent ......................................................................... 56
11. Time not of the essence ............................................................................ 56
FOURTH SCHEDULE ......................................................................................... 57
Covenants by the Surety ................................................................................. 57
1. Indemnity by Surety ................................................................................ 57
2. Surety jointly and severally liable with Tenant .................................................... 57
3. Waiver by Surety ................................................................................... 57
4. Postponement of claims by Surety against Tenant .................................................... 57
5. Postponement of participation by Surety in security ................................................ 57
6. No release of Surety ............................................................................... 58
7. Disclaimer or forfeiture of Lease .................................................................. 58
8. Benefit of guarantee and indemnity ................................................................. 59
FIFTH SCHEDULE .......................................................................................... 60
Matters to which the Demised Premises are subject ....................................................... 60
SIXTH SCHEDULE .......................................................................................... 61
Estate Services ......................................................................................... 61
Part A .................................................................................................. 61
1. Serviced Areas ..................................................................................... 61
2. Apparatus plant machinery etc ...................................................................... 61
3. Pipes .............................................................................................. 61
4. Fire alarms etc .................................................................................... 61
5. Lighting ........................................................................................... 62
6. Roads Malls etc open ............................................................................... 62
7. Security surveillance and visitor control .......................................................... 62
8. Provision of signs and general amenities ........................................................... 62
9. Ornamental features gardens etc .................................................................... 62
10. Fixtures fittings etc .............................................................................. 62
11. Windows ............................................................................................ 62
12. Refuse ............................................................................................. 63
13. Traffic ............................................................................................ 63
14. Energy and supply services ......................................................................... 63
15. Water Areas and Waterside and Riverside Walkways ................................ 63
16. Transport Services .............................................................. 63
17. Other services .................................................................. 63
Part B ............................................................................... 64
1. Staff ........................................................................... 64
2. Common Facilities ............................................................... 64
3. Transportation Facilities ....................................................... 64
4. Outgoings ....................................................................... 64
5. Statutory requirements .......................................................... 64
6. Representations ................................................................. 65
7. Fees of the Estate Surveyor and the Accountant .................................. 65
8. Management ...................................................................... 65
9. Insurance ....................................................................... 65
10. Public activities ............................................................... 66
11. Public toilets .................................................................. 66
12. Miscellaneous items ............................................................. 66
SEVENTH SCHEDULE ..................................................................... 67
Building Services .................................................................... 67
Part A ............................................................................... 67
Part I ............................................................................... 67
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1. The Core Parts .................................................................. 67
2. Base Parts of the Building ...................................................... 68
3. Hot and cold water .............................................................. 68
4. Air conditioning ................................................................ 68
Part II .............................................................................. 68
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1. Lifts ........................................................................... 68
2. Hot and Cold Water .............................................................. 68
3. Maintenance and Cleaning ........................................................ 68
4. Air Conditioning ................................................................ 68
SEVENTH SCHEDULE ..................................................................... 69
Part B ............................................................................... 69
Part I ............................................................................... 69
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1. Retained Parts .................................................................. 69
2. Apparatus plant machinery etc ................................................... 69
3. Fire alarms etc ................................................................. 69
4. Security and surveillance ....................................................... 69
5. Staff ........................................................................... 69
6. Common Facilities ............................................................... 70
7. Outgoings ....................................................................... 70
8. Representations ................................................................. 70
9. Regulations ..................................................................... 70
10. Miscellaneous items ............................................................. 70
Part II .............................................................................. 71
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1. Retained Parts .................................................................. 71
2. Apparatus Plant Machinery etc ................................................... 71
3. Security and surveillance ....................................................... 71
4. Provision of signs and general amenities ........................................ 71
5. Ornamental features gardens etc ................................................. 71
6. Fixtures fittings etc ........................................................... 71
7. Windows ......................................................................... 71
8. Refuse .......................................................................... 72
9. Energy and supply services ................................................................ 72
10. Other services ............................................................................ 72
11. Staff ..................................................................................... 72
12. Common Facilities ......................................................................... 72
13. Outgoings ................................................................................. 73
14. Statutory requirements .................................................................... 73
15. Representations ........................................................................... 73
16. Regulations ............................................................................... 73
17. Enforcement of covenants etc .............................................................. 73
18. Fees of the Building Surveyor and the Accountant .......................................... 73
19. Management ................................................................................ 73
20. Miscellaneous items ....................................................................... 74
21. Insurance ................................................................................. 74
22. Decorations ............................................................................... 74
23. Staff ..................................................................................... 74
24. Name boards ............................................................................... 74
25. Generally ................................................................................. 74
26. Building Car Park ......................................................................... 74
EIGHTH SCHEDULE ................................................................................ 75
Authorised Guarantee Agreement to be given by Tenant ........................................... 75
1. Authorised Guarantee ...................................................................... 75
2. Tenant's liability ........................................................................ 75
3. Disclaimer of Lease ....................................................................... 76
4. Supplementary provisions .................................................................. 76
5. [Guarantee] ............................................................................... 77
6. Guarantor to join in new lease ............................................................ 77
NINTH SCHEDULE ................................................................................. 78
Expert determination ........................................................................... 78
TENTH SCHEDULE ................................................................................. 80
Defects ........................................................................................ 80
1. Interpretation ............................................................................ 80
2. Snagging Items ............................................................................ 80
3. Defects in the Base Building Works ........................................................ 80
4. Access to the Demised Premises to remedy Snagging Items and/or Defects
in the Base Building Works ................................................................ 80
5. Defects Costs in respect of Base Building Works ........................................... 81
6. Defects Costs in respect of the Infrastructure Works ...................................... 81
7. Tenant to notify Landlord of Latent Defective Works ....................................... 81
8. Landlord to have no other liability ....................................................... 82
LEASE PARTICULARS
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1. DATE : day of 2002
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2. LEASE OR UNDERLEASE : Underlease
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3. PARTIES
(a) LANDLORD : HERON QUAYS (HQ4) T1 LIMITED whose registered
office is at One Canada Square Canary Wharf London
E14 5AB (Company registration number 4290518) and
HERON QUAYS (HQ4) T2 LIMITED whose registered
office is at One Canada Square Canary Wharf London
E14 5AB (Company registration number 4290517)
(b) MANAGEMENT : CANARY WHARF MANAGEMENT LIMITED whose registered
COMPANY office is at One Canada Square Canary Wharf
London E14 5AB (Company registration number
2067510)
(c) TENANT : THE NORTHERN TRUST COMPANY registered in the State
of Illinois whose registered office is at 50 South
LaSalle Street Chicago Illinois 60675 USA and whose
address for service in the UK is 50 Bank Street
London E14 5NT (Company Registration number
BR001960)
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4. DEMISED PREMISES : Those parts of level B1M and Floors 9-11 of the
Building shown for the purpose of identification
only edged red on Plan 2-5
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5. BUILDING : ALL THAT land and premises including (if any) the
dockbed and water thereover the quayside and the
parts of the dock walls located therein and the
building known as HQ-4 50 Bank Street Canary Wharf
West India Docks Isle of Dogs London E14 and
more particularly shown edged red on Plan 1
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6. TERM and TERM : 20 years commencing on 1 April 2002
COMMENCEMENT DATE
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7. INITIAL RENT : TWO MILLION THREE HUNDRED AND FORTY-SEVEN THOUSAND
THREE HUNDRED AND TWELVE POUNDS ((pounds)2,347,312)
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8. RENT COMMENCEMENT DATE : 31 August 2003
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9. RENT REVIEW DATES : 1 April 2007 and every fifth anniversary of such
day during the Term
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10. ESTATE SERVICE CHARGE PERCENTAGE : The percentage to be established pursuant to Clause
9.1(j) (subject to Clause 9.8)
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11. BUILDING SERVICE CHARGE PERCENTAGE : The percentages to be established pursuant to
Clause 9.1(e) (subject to Clause 9.8)
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12. DECORATION YEARS : The year ending 1 April 2007 and thereafter every
subsequent fifth year of the Term
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13. PERMITTED USER : High class professional or commercial offices and
ancillary storage and catering
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THIS LEASE made on the Date and BETWEEN the Parties specified in the Particulars
WITNESSETH as follows:-
1. DEFINITIONS
In this Lease the following expressions shall have the following meanings:-
1.1 "Acceptable Assignee" means:-
(a) An Entity which has (or whose obligations will be guaranteed by an
Entity which has) continuously for a period of 12 months immediately
preceding the date of the application to assign maintained and which
on the date of the application for licence to assign this Lease still
maintains:-
(i) in respect of its senior unsecured unsubordinated and
unguaranteed long term debt obligations a credit rating of A or
better from Standard & Poor's Ratings Group, a division of
McGraw-Hill Inc ("Standard & Poor's") or A2 from Moody's
Investors Service ("Moody's"); or
(ii) a long-term counterparty credit rating of A or better from
Standard & Poor's; or
(iii) credit ratings in respect of its senior unsecured
unsubordinated and unguaranteed long term debt or in respect of
its long term counterparty status from other major rating
agencies acceptable to the Landlord acting reasonably
equivalent to or better than any one of the credit ratings
described in (i) and (ii) above;
AND WHERE
(iv) at the date of the application for licence to assign there is
no other major rating agency whose equivalent rating in respect
of the proposed assignee is lower than any of the credit
ratings described in (i) or (ii) above provided that where any
relevant agency rebases redesignates or otherwise changes the
substance of or criteria for a relevant rating as referred to
in (i) or (ii) above (or the number of grades or rankings above
or below the relevant rating) or does any other act or thing so
that the comparative creditworthiness strength or substance
reflected in any of the ratings referred to in (i) or (ii)
above is changed then there shall be deemed substituted for the
ratings referred to in (i) or (ii) above such new or revised
ratings as will then reflect and be equivalent to the relative
creditworthiness strength and substance implied by the above
ratings at the date hereof to the intent and effect that the
substituted rating shall be equivalent mutatis mutandis to the
current standards of creditworthiness strength and substance
reflected in such current ratings; and
(v) at the date of the application to assign the proposed
assignee's credit rating has not been placed on Credit Watch
nor has been accorded negative or developing rating outlook or
equivalent (other than with a view to a possible up-grade) by
either Standard & Poor's or Moody's unless prior to being
placed on Credit Watch or being accorded such outlook the
proposed assignee's credit rating in respect of its senior
unsecured unsubordinated and
-1-
unguaranteed long term debt obligations was either A or
better from Standard & Poor's or A2 or better from Moody's;
or
(b) an Entity whose financial standing does not adversely affect
(otherwise than to an immaterial extent) the market value of the
Landlord's interest in the Demised Premises by taking an
assignment of this Lease when compared with the position
immediately prior to the proposed assignment (whether or not the
Landlord has any intention at the time of selling or raising
money on the security of its reversionary interest in the Demised
Premises) by a hypothetical tenant who has at that point:-
(i) in respect of its senior unsecured unsubordinated and
unguaranteed long term debt obligations a credit rating of A
from Standard & Poor's or A2 from Moody's;
(ii) a long-term counterpart credit rating of A from Standard &
Poor's or A2 from Moody's
the market value of the Landlord's interest in the Demised
Premises shall be calculated having regard to the valuation
guidelines set out in the RICS Appraisal and Valuation Manual
current at the date of the said valuation or such alternative
valuation practice for institutional investment office properties
as is in common use for office premises of similar Net Internal
Area to the Demised Premises in London at the date of the
application for licence to assign
1.1a "Accountant" means a Chartered Accountant or firm of Chartered
Accountants appointed or employed by the Management Company or a Group
Company of the Management Company to perform the functions of the
Accountant under this Lease
1.2 "Adjoining Property" means all parts of the Estate (other than the
Demised Premises) and any land and/or buildings from time to time
adjoining or neighbouring the Estate
1.2a "Agreement for Lease" means the agreement for lease relating to the
development and leasing of B1 B1M and Floors 5-11 of the Building
dated 15 November 2000 and made between (1) Heron Quays Properties
Limited (2) the Tenant and (3) Canary Wharf Group plc as varied by a
Deed of Variation dated 4 January 2002 and made between (1) Heron
Quays Properties Limited (2) the Tenant and (3) Canary Wharf Estates
Limited (formerly known as Canary Wharf Group plc)
1.3 "Base Rate" means the Base Rate for the time being of Barclays Bank
PLC or some other London clearing bank nominated from time to time by
the Landlord or in the event of Base Rate ceasing to exist such other
reasonable comparable rate of interest as the Landlord shall from time
to time determine
1.4 "Building" means the Building (of which the Demised Premises form
part) briefly described in the Particulars and each and every part
thereof and all the appurtenances belonging thereto including:-
(a) all landlord's fixtures and fittings in or upon the same
(b) all additions alterations and improvements thereto (excluding all
tenant's and trade fixtures and fittings)
-2-
and shall also include any additional land and buildings which the Landlord
from time to time reasonably designates as part of the Building
1.5 "Building Services" means the services set out in Part A of the Seventh
Schedule
1.6 "Business Hours" means 7.00 am to 8.00 pm on Mondays to Fridays (inclusive)
and 8.00 am to 2.00 pm on Saturdays (excluding all usual bank or public
holidays) or such other hours as may from time to time be reasonably
designated by the Landlord
1.7 "Car Park" means the car parks within the Estate (other than the car
parking area (if any) within the Building) designated as such from time to
time in writing by the Landlord
1.8 "Common Parts of the Building" means those parts and amenities of the
Building which are from time to time provided (or designated by the
Landlord) for common use by tenants and occupiers of the Building with or
without others and all persons authorised by them but excluding the Estate
Common Parts and the Lettable Areas
1.9 "Demised Premises" means the Demised Premises as briefly described in the
Particulars including:-
(a) the internal plaster surfaces and finishes of all structural or load
bearing walls and columns within the Demised Premises and of all walls
which enclose the same
(b) the entirety of all non-structural or non-load bearing walls and
columns within the Demised Premises
(c) the inner half severed medially of the internal non-structural or
non-load bearing walls (if any) that divide the same from other parts
of the Building
(d) the screed and floor finishes thereof and all carpets
(e) the ceiling finishes thereof including all suspended ceilings and
light fittings
(f) all glass window frames and window furniture in the windows and all
doors door furniture and door frames
(g) all sanitary and hot and cold water apparatus and equipment
(h) all Pipes under and over the same which exclusively serve the Demised
Premises
(i) all landlord's fixtures fittings plant machinery ducting sprinklers
apparatus and equipment now or hereafter in or upon the same which
exclusively serve the Demised Premises
(j) all additions alterations and improvements thereto
but nevertheless excluding (i) all structural or load bearing walls and
columns and the structural slabs of any roofs ceilings and floors (ii) all
glass window frames and window furniture in the windows in the external
skin of the Building (iii) pipes belonging to public utilities or those
which serve other parts of the Building or Adjoining Property
1.10 "Development" means development as defined in Section 55 of the Town and
Country Planning Act 1990
-3-
1.11a "Entity" means a body corporate or other business organisation or
partnership
1.11 "Estate" means the land and water areas at Canary Wharf and Heron Quays
London E14 shown edged green on Plan 1 with any additional land and water
areas in which the Landlord or a Group Company of the Landlord shall
acquire a freehold or leasehold interest and which the Landlord from time
to time reasonably designates as part of the Estate and all buildings and
appurtenances thereon and all additions alterations and improvements
thereto
1.12 "Estate Common Parts" means those parts of the Estate and the Adjoining
Property (such parts not being publicly adopted) which are from time to
time intended and/or reasonably designated and provided for the common use
and enjoyment of the Tenant and the tenants of the Estate and persons
claiming through or under them (whether or not other parties are also
entitled to use and enjoy the same) but excludes all car parks within the
Estate
1.13 "Estate Services" means the services set out in Part A of the Sixth
Schedule insofar as the same are attributable to the Estate excluding the
Car Park
1.14 "Force Majeure" means any cause beyond the reasonable control of the
Landlord or the Management Company
1.15 "Group Company" in relation to any company ("the Relevant Company") means
a company which is for the time being a subsidiary of or the holding
company of the Relevant Company or which is another subsidiary of the
holding company of the Relevant Company (in each case within the meaning
of Section 736 of the Companies Act 1985, as ` amended by the Companies
Act 1989)
1.16 "Insured Risks" means (to the extent that the same are insurable in the
global insurance market) fire storm tempest flood earthquake lightning
explosion impact aircraft (other than hostile aircraft) and other aerial
devices and articles dropped therefrom riot civil commotion malicious
damage or damage caused as a result of terrorist action bursting or
overflowing of water tanks apparatus or Pipes and such other risks as the
Landlord may from time to time specify subject to such exclusions excesses
limitations terms and conditions as may be imposed by the insurers
1.17 "Interest Rate" means four percentage points (4%) per annum above Base
Rate
1.18a "Irrecoverable VAT" means any Value Added Tax paid or payable by the
Tenant in relation to supplies made by the Landlord to the Tenant by
reason of this Lease if in respect of such payment and to the extent
thereof the Tenant does not (or would not if appropriate claims had been
made in due time) receive a credit in full as "input tax" whether as a VAT
credit or as a deduction from "output tax" (as the expressions "input tax"
and "output tax" are defined in Section 24 of the Value Added Tax Act 1994
and as the expression "VAT credit" is defined in Section 25 of that Act)
under Sections 25 and 26 of that Act for the "prescribed accounting
period" (as that expression is used in Sub-Section 25(1) of that Act) in
relation to Value Added Tax
1.18 "Landlord" means the party named as "Landlord" in the Particulars and
includes the person for the time being entitled to the reversion
immediately expectant on the determination of the Term
1.19 "this Lease" means this Underlease and any document which is made
supplemental hereto or which is entered into pursuant to or in accordance
with the terms hereof
-4-
1.20 "Lettable Areas" means those parts of any building (including the Building)
leased or intended to be leased or capable of being leased to occupational
tenants but excluding any parts of such building leased or intended to be
leased or capable of being leased to public utilities for the purposes of
the carrying out of their statutory obligations
1.21 "Management Company" means the party named as "Management Company" in the
Particulars or such other company as may be substituted therefor by the
Landlord by notice in writing to the Tenant pursuant to Clause 8.6 PROVIDED
THAT in the event of any such substitution then at the request of either
the Landlord or the Tenant the substituted management company the Tenant
and any Surety shall enter into a Deed by which the Tenant and the Surety
covenant with the new management company and the new management company
covenants with the Tenant in the terms of the covenants between the
Management Company the Tenant and any Surety contained in this Lease
1.22 "Mechanical Space Area" means the areas on Floor B2 and Floor 12 of the
Building shown for the purpose of identification only hatched and edged
blue on Plans 6 and 7
1.23 "Net Internal Area" shall have the meaning given to it by the Code of
Measuring Practice published on behalf of the Royal Institution of
Chartered Surveyors and the Incorporated Society of Valuers and Auctioneers
(Fourth Edition November 1993) or such subsequent Edition as shall be
generally used by measurement surveyors and shall be determined from time
to time by the Estate Surveyor (as defined in Clause 9.1(k)) (ignoring
works carried out by tenants or occupiers during the subsistence of the
lease or underlease in existence at the time of such determination)
1.24 "Particulars" means the descriptions and terms appearing on the preceding
pages headed "Lease Particulars" which comprise part of this Lease
1.25 "Permitted Part" means the separate unit of accommodation as defined in
Clause 4.21(c)(ii)
1.26 "Pipes" means all pipes sewers drains ducts conduits gutters watercourses
wires cables channels flues service corridors trunking and all other
conducting media and any ancillary apparatus
1.27 "Plan 1" "Plan 2" "Plan 3" etc means the plans annexed hereto and
respectively so marked
1.28 "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 the Planning (Consequential Provisions) Act 1990 the
Planning and Compensation Act 1991 and any other town and country planning
or related legislation
1.29 "Quarterly Day" means each of the 1st day of January 1st day of April 1st
day of July and 1st day of October
1.30 "Regulations" means the regulations set out in a manual which has been made
available to the Tenant and which may be reasonably updated from time to
time and such substituted or additional reasonable Regulations as the
Landlord may from time to time notify in writing to the Tenant for the
general management oversight and security of the Building the Car Park or
the Estate
-5-
1.31 "Rent" means the Initial Rent and the rent payable pursuant to the
provisions of the Third Schedule
1.32 "Retained Parts" means the Common Parts of the Building and all parts of
the Building which do not comprise Lettable Areas or Estate Common Parts
and/or which are designated as such from time to time by the Landlord
1.33 "Superior Landlord" means the person or persons for the time being entitled
to any estate or estates which are reversionary (whether immediate or
mediate) upon the Landlord's estate
1.34 "Superior Lease" means the Lease dated 16 March 1998 and made between
London Docklands Development Corporation (1) and Heron Quays Properties
Limited (2) as amended from time to time and any other lease or leases
which are reversionary (whether immediate or mediate) upon this Lease
1.35 "Surety" means the party (if any) named as "Surety" in the Particulars and
any other party who during the Term acts as Surety and in the case of an
individual includes his personal representatives
1.36 "Tenant" means the party named as "Tenant" in the Particulars and includes
the Tenant's successors in title and assigns and those deriving title under
them and in the case of an individual includes his personal representatives
1.37 "Tenant's Category "A" Works" and "Tenant's Category "B" Works" mean
respectively the works described as such in a Memorandum dated signed on
behalf of each of the Landlord and the Tenant and annexed
hereto collectively called the "Tenant's Works"
1.38 "Term" means the term of years stated in the Particulars and includes the
period of any holding over or any extension or continuation whether by
statute or common law
1.39 "Value Added Tax" and "VAT" means value added tax as provided for in the
Value Added Tax Act 1994 and includes any other tax from time to time
replacing it or of a similar fiscal nature
1.40 "Working Day" means any day (other than a Saturday or a Sunday) upon which
clearing banks in the United Kingdom are open to the public for the
transaction of business
2. INTERPRETATION
UNLESS the context otherwise requires:-
2.1 where two or more persons are included in the expression "the Tenant"
and/or "the Landlord" the covenants which are expressed to be made by the
Tenant and/or the Landlord shall be deemed to be made by such persons
jointly and severally
2.2 words importing persons shall include firms companies and corporations and
vice versa
2.3 any covenant or regulation to be observed by any party hereto not to do any
act or thing shall include an obligation not to cause permit or suffer such
act or thing to be done
2.4 references either to any rights or powers of the Landlord or the Management
Company or the rights of the Tenant in relation to the Adjoining Property
shall be construed as extending
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respectively to the Superior Landlord and all persons authorised by the
Landlord and/or the Management Company and the Superior Landlord and as the
case may be by the Tenant
2.5 reference to the requirement of any consent and/or approval from and/or
registration with the Landlord and/or the Management Company shall be
construed as:-
(a) requiring the Landlord and/or Management Company not unreasonably to
delay giving any such consent and/or approval where either the
Landlord or Management Company is not unreasonably to withhold such
consent and/or approval; and
(b) including a requirement for the consent and/or approval of and/or
registration with a Superior Landlord where the Superior Landlord's
consent and/or approval would be required under the terms of a
Superior Lease except that nothing herein shall be construed as
imposing on a Superior Landlord any obligation (or indicating that
such an obligation is imposed on the Superior Landlord by virtue of
the terms of a Superior Lease) not unreasonably to refuse any such
consent and/or approval
2.6 any reference to a statute (whether specifically named or not) shall
include any amendment or re-enactment of such statute for the time being in
force and all instruments orders notices regulations directions bye-laws
permissions and plans for the time being made issued or given thereunder or
deriving validity therefrom
2.7 the titles and headings appearing in this Lease are for reference only and
shall not affect its construction
2.8 all agreements and obligations by any party contained in this Lease
(whether or not expressed to be covenants) shall be deemed to be and shall
be construed as covenants by such party
3. DEMISE AND RENTS
THE Landlord HEREBY DEMISES unto the Tenant the Demised Premises TOGETHER
WITH the rights and easements specified in the First Schedule EXCEPT AND
RESERVING the rights and easements specified in the Second Schedule SUBJECT
TO all rights easements quasi-easements privileges covenants restrictions
and stipulations of whatsoever nature affecting the Demised Premises
including the matters contained or referred to in the Deeds mentioned in
the Fifth Schedule TO HOLD the Demised Premises unto the Tenant from and
including the Term Commencement Date for the Term YIELDING AND PAYING unto
the Landlord and (where expressly provided hereunder) the Management
Company during the Term by way of rent:-
(a) yearly and proportionately for any fraction of a year:-
(i) from and including 1 June 2002 the rent of FORTY THOUSAND POUNDS
((Pounds)40,000) until the Rent Commencement Date
(ii) from and including the Rent Commencement Date up to but
excluding 1 April 2007 the Initial Rent
(iii) from and including each Review Date (as that term is defined in
the Third Schedule) such Rent as shall become payable under and
in accordance with the provisions of the Third Schedule
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in each case to be paid to the Landlord (by Banker's Standing Order if
the Landlord reasonably so requires) by equal quarterly payments in
advance on each Quarterly Day in every year the first payment being a
proportionate sum in respect of the period from and including the Rent
Commencement Date to the day before the next Quarterly Day to be made
on the Rent Commencement Date
(b) a due proportion to be fairly and properly determined by the Landlord
of all sums (including insurance tax and the cost of periodic
valuations for insurance purposes) which the Landlord shall from time
to time be liable to pay for insuring the Building against the Insured
Risks pursuant to Clause 7.1(a) and the other matters referred to in
Clauses 7.1(c) and 7.1(d) and the whole of the sums which the Landlord
shall from time to time pay for insuring against loss of rents
pursuant to Clause 7.1(b) such sums to be paid to the Landlord on
demand
(c) the payments to be made to the Management Company (subject to Clause
8.6) in accordance with Clause 9
(d) the moneys referred to in Clauses 4.2 and 4.33 to be paid to the
Landlord or the Management Company as therein provided on demand
(e) any other moneys which are by this Lease stated to be recoverable as
rent in arrear to be paid to the Landlord or the Management Company as
therein provided on demand
4. TENANT'S COVENANTS
THE Tenant HEREBY COVENANTS with the Landlord and as a separate covenant
with the Management Company as follows:-
4.1 Rents
To pay the rents reserved by this Lease at the times and in the manner
aforesaid without any abatement set-off counterclaim or deduction
whatsoever (save those that the Tenant is required by law to make) and so
that the Landlord shall receive full value in cleared funds on the date
when payment is due
4.2 Interest on arrears
(a) Without prejudice to any other right remedy or power herein contained
or otherwise available to the Landlord or the Management Company if
any of the rents reserved by this Lease (whether formally demanded or
not) or any other sum of money payable to the Landlord or the
Management Company by the Tenant under this Lease shall not be paid so
that the Landlord receives full value in cleared funds:-
(i) in the case of the Rent and any Value Added Tax thereon, on the
date when payment is due (or, if the due date is not a Working
Day, the next Working Day after the due date); or
(ii) in the case of any other rents or sums within seven (7) days
after the date when payment has become due
to pay interest thereon at the Interest Rate from the date on which
payment was due to the date of payment to the Landlord or the
Management Company (as the case may be) (both before and after any
judgment)
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(b) Without prejudice to any other right, remedy or power contained in
this Lease or otherwise available to the Landlord, if the Landlord
shall decline to accept any of the rents or other sums of money so as
not to waive any existing breach of covenant, the Tenant shall pay
interest on such rents and other sums of money at the Interest Rate
from and including the date when payment was due (or, where
applicable, would have been due if demanded on the earliest date on
which it could have been demanded) to the date when payment is
accepted by the Landlord
4.3 Outgoings
(a) To pay and discharge all existing and future rates taxes duties
charges assessments impositions and outgoings whatsoever or (where
such outgoings relate to the Demised Premises and other premises) a
due proportion thereof to be reasonably determined by the Landlord
which now are or may at any time during the Term be payable in respect
of the Demised Premises (and all car parking spaces designated for the
use of the Tenant) whether by the owner or the occupier of them
(excluding any tax payable by the Landlord occasioned by the grant of
and any disposition of or dealing with the reversion to this Lease)
(b) To the extent not detrimental to the Tenant's interests to raise no
objection to the Landlord or the Management Company contesting any
outgoings as aforesaid and appealing any assessments related thereto
or withdrawing any such contest or appeal or agreeing with the
relevant authorities on any settlement compromise or conclusion in
respect thereof and to supply to the Landlord forthwith upon receipt
copies of any such assessments and to execute forthwith on request all
consents authorisations or other documents as the Landlord or the
Management Company reasonably requests to give full effect to the
foregoing
(c) Not to agree or appeal or contest any such outgoings or any
assessments related thereto without the prior approval in writing of
the Landlord (such approval not to be unreasonably withheld)
(d) To pay all charges for electricity telephone water gas (if any) and
other services and all sewage and environmental charges consumed in
the Demised Premises including any connection charge and meter
installation costs and rents and if so required by the Landlord at the
Tenant's own cost to install a water meter to measure the water
consumed in the Demised Premises and (where any such services are
provided by the Landlord or the Management Company at the request of
the Tenant or where there is no reasonable alternative) to pay for any
such service consumed and a standing charge at a reasonable rate (not
exceeding 10% of the cost of the same to the Landlord or the
Management Company) specified from time to time by the Landlord or the
Management Company and to permit the Landlord or the Management
Company to install maintain and read any meter in the Demised Premises
relating to any such service
4.4 Utility authorities
To pay to the Landlord or as it may direct an amount equal to any rebate or
rebates which the Tenant or any undertenant may receive from public
utilities in respect of the capital costs incurred by the Landlord the
London Docklands Development Corporation (or any successor body) or some
party (other than the Tenant) of providing water foul and surface water
drainage gas electricity and telecommunications
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4.5 Repairs
(a) To repair and keep in good and substantial repair and condition the
Demised Premises (other than any parts which the Landlord or the
Management Company has covenanted to maintain or replace or repair)
(damage by the Insured Risks excepted save to the extent that payment
of the insurance moneys shall be withheld by reason of any act neglect
or default of the Tenant or any undertenant or any person under its or
their control)
(b) To replace from time to time any of the Landlord's fixtures and
fittings which become in need of replacement with new ones which are
similar in type and quality (excluding any such fixtures and fittings
which the Landlord or the Management Company is liable to maintain or
repair or replace pursuant to their respective covenants herein
contained)
4.6 Plant and machinery
To keep all plant machinery and other equipment (not being moveable
property of the Tenant or any undertenant) in the Demised Premises properly
maintained and in good working order and condition and shall not adversely
affect the base building systems and any warranties which the Landlord may
enjoy in relation to the same
4.7 Decorations
In every Decoration Year and also in the last three months of the Term
howsoever determined in a good and workmanlike manner to prepare and
decorate (with two coats at least of good quality paint) or otherwise treat
as appropriate all parts of the Demised Premises required to be so treated
and as often as may be reasonably necessary to wash down all washable
surfaces such decorations and treatment in the last year of the Term to be
executed in such colours and materials as the Landlord may reasonably
require
4.8 Cleaning
(a) To keep the Demised Premises in a clean and tidy condition and at
least once in every month properly to clean the inside of all exterior
windows window frames and other exterior glass enclosing the Demised
Premises
(b) To invite the cleaning contractor nominated by the Landlord to tender
to the Tenant for the cleaning of the Demised Premises
4.9 Not Used
4.10 Yield up
(a) Immediately prior to the expiration or sooner determination of the
Term at the cost of the Tenant:-
(i) to replace any of the Landlord's fixtures and fittings which
shall be missing or damaged with new ones of similar kind and
quality or (at the option of the Landlord) to pay to the Landlord
the cost of replacing any of the same
(ii) to remove from the Demised Premises any moulding or sign of the
name or business of the Tenant or occupiers and all tenant's
fixtures fittings furniture
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and effects and to make good to the reasonable satisfaction of
the Landlord all damage caused by such removal
(iii) only if reasonably required by the Landlord to remove all video
data and sound communications conducting material installed in
the Building by or at the request of the Tenant or any
undertenant
(b) At the expiration or sooner determination of the Term quietly to yield
up the Demised Premises to the Landlord in good and substantial repair
and condition in accordance with the covenants and other obligations
on the part of the Tenant contained in this Lease and to no less a
standard of finish than the Demised Premises would have been in if
they had been constructed to the "Minimum Standard Developer's Finish
for Tenant's Work" when the Building was originally constructed
4.11 Rights of entry by Landlord and the Management Company
Subject to the provisions of Clause 8.18 to permit the Landlord and the
Management Company with all necessary materials and appliances at all
reasonable times upon reasonable prior notice (except in cases of
emergency) to enter and remain upon the Demised Premises:-
(a) to view and examine the state and condition of the Demised Premises
and to take schedules of the landlord's fixtures
(b) to exercise any of the rights excepted and reserved by this Lease
(c) for any other proper purpose connected with the management of or the
interest of the Landlord in the Demised Premises or the Building
4.12 To comply with notices
(a) Whenever the Landlord shall give written notice to the Tenant of any
breach of covenant to forthwith remedy such breach
(b) If the Tenant shall fail within twenty-one (21) days of such notice or
as soon as reasonably possible in the case of emergency to commence
and then diligently to continue to comply with such notice the
Landlord may without further notice enter the Demised Premises and
carry out or cause to be carried out all or any of the works referred
to in such notice and all costs and expenses thereby incurred shall be
paid by the Tenant to the Landlord on demand and in default of payment
shall be recoverable as rent in arrear
4.13 Overloading floors and services and installation of wiring etc
(a) Not to do anything which may subject the Demised Premises or the
Building to any strain beyond that which it is designed to bear with
due margin for safety and to pay to the Landlord on demand all costs
reasonably incurred by the Landlord in obtaining the opinion of a
qualified structural engineer as to whether the structure of the
Demised Premises or the Building is being or is about to be overloaded
(b) To observe the weight limits prescribed for all lifts in the Building
(c) Not to use or permit or suffer to be used any electrical or electronic
apparatus or equipment that does not comply with any relevant British
standard or code of
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practice (or any replacement thereof) relating to such apparatus or
equipment and in addition not to install or use any electrical or
electronic equipment or apparatus unless it has been fitted with an
efficient suppresser so as to prevent any interference with radio or
television reception telecommunications transmission electrical or
electronic apparatus or equipment or the operation of any other
equipment in the Building or in any Adjoining Property
(d) If properly requested by any relevant public utility promptly to
provide or to consent to the disclosure by the relevant public utility
of details to the Management Company of the installation in or upon
any part of the Building or the Estate of all video data and sound
communications conducting material and associated equipment installed
by or at the request of the Tenant or any undertenant
4.14 Pipes
Not to overload or obstruct any Pipes or discharge into any Pipes any oil
or grease or any noxious or deleterious substance which may cause an
obstruction or become a source of danger or injure the Pipes or the
drainage system of the Building or the Adjoining Property
4.15 Cooking
Not to prepare or cook any food in the Demised Premises otherwise than in a
kitchen area approved in writing by the Landlord such approval not to be
unreasonably withheld and to take all necessary steps to ensure that all
smells and fumes caused by permitted cooking refuse or food shall be
removed from the Demised Premises in a manner and by means approved by the
Landlord and in any event so as to ensure that in the reasonable opinion of
the Landlord no nuisance or annoyance shall be caused to the Landlord or
any of the tenants or occupiers of the Building or the Adjoining Property
4.16 Dangerous materials and use of machinery
Not to bring in any part of the Building anything which is or is likely to
become dangerous offensive combustible especially inflammable radioactive
or explosive or which might increase the risk of fire or explosion or which
would cause or be likely to cause nuisance disturbance or damage to the
Landlord or any tenant owner or occupier of any part of the Building or the
Estate PROVIDED THAT this Clause shall not prevent the use of goods and
machinery utilised in connection with a modern office building and the
activities carried on thereat
4.17 Heating cooling and ventilation and other systems
(a) Not to do anything which adversely affects the heating cooling or
ventilation of the Building or any other centrally controlled systems
or which imposes an additional load on the heating cooling or
ventilation plant and equipment or any such system beyond that which
it is designed to bear
(b) To take all steps necessary to prevent any mechanical ventilation of
the Demised Premises drawing air from or exhausting air into the
Common Parts of the Building
4.18 User
(a) Not to use or occupy the Demised Premises for any purpose except for
the Permitted User
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(b) Not to use the Demised Premises or any part thereof for any auction or
public meeting public exhibition or public entertainment or for
gambling or as a club or for the business of a turf accountancy estate
agency travel agency staff or employment agency or Government
Department where services are provided principally to visiting members
of the public
(c) Not to use the Demised Premises or any part thereof for any dangerous
noisy noxious or offensive trade business or occupation whatsoever nor
for any illegal or immoral purpose nor for residential or sleeping
purposes
(d) Not to leave the Demised Premises continuously unoccupied for more
than 7 days without:-
(i) notifying the Landlord and
(ii) providing such caretaking and security arrangements as the
Landlord shall reasonably require in order to protect the Demised
Premises and its contents and to deal with any emergency
(e) To ensure that at all times the Landlord and the Management Company
have written notice of the name home address and home telephone number
of at least two keyholders of the Demised Premises
(f) To provide the Landlord or the Management Company with a set of keys
to the Demised Premises to enable the Landlord and the Management
Company or their agents and others authorised by the Landlord or the
Management Company to enter the Demised Premises for security purposes
in accordance with the provisions of Clause 8.18 or in cases of
emergency
4.19 Alterations signs and visual amenity
(a) Not to erect any new structure in the Demised Premises or any part
thereof nor to alter add to or change the exterior of the Demised
Premises or the height elevation or external architectural or
decorative design or appearance of the Demised Premises
(b) Not to alter divide cut maim or remove any of the principal or
load-bearing walls floors beams or columns within or enclosing the
Demised Premises nor to make any other alterations or additions which
affect the structure of the Building
(c) Not to make any alterations or additions to any centrally controlled
systems in the Demised Premises or the Building or the Pipes within or
serving the Demised Premises or the Building without obtaining the
prior written consent of the Landlord such consent not to be
unreasonably withheld
(d) Not to make any alterations or additions not prohibited by Clause 4.19
(a) or (b) without obtaining the prior written consent of the Landlord
such consent not to be unreasonably withheld and provided that as soon
as practicable (and not more than fifteen days) following completion
of the approved alterations or additions (the "Alterations") the
Tenant shall supply to the Landlord (i) a set of as-built drawings
showing the Alterations as actually carried out together with a
complete set of updated DWG files on computer disc reflecting the
changes to the Tenant's Works and (ii) a copy of the health and safety
file kept available for inspection pursuant to
-13-
the Construction (Design Management) Regulations 1994 and any
subsequent legislation of a similar nature
(e) Not to add to or change the lighting within the Demised Premises
which lighting is visible from outside the Demised Premises without
obtaining the prior written consent of the Landlord (not to be
unreasonably withheld)
(f) Not to erect or display on the exterior of the Demised Premises or
in the windows thereof so as to be visible from the exterior any
pole aerial advertisement or thing whatsoever save that the Tenant
may display on the entrance door to the Demised Premises a sign
stating the Tenant's name and business or profession on obtaining
the prior written consent of the Landlord to the size style and the
position thereof and the materials to be used such consent not to be
unreasonably withheld
(g) Not to install any window coverings except those which have been
approved in writing by the Landlord from time to time (not to be
unreasonably withheld)
(h) Promptly to make good all damage caused to any parts of the Building
or any Adjoining Property in the carrying out of any alterations or
additions to the Demised Premises
4.20 Works carried out to the Demised Premises
Without prejudice to the provisions of Clause 4.19 or to any covenants
and conditions which the Landlord may reasonably require or impose in
giving consent for alterations or additions to the Demised Premises to
carry out any alterations additions repairs replacements or other works
to or in respect of the Demised Premises promptly and in a good and
workmanlike manner and in accordance with the reasonable requirements of
the Landlord notified in writing to the Tenant and in particular but
without prejudice to the generality thereof:-
(a) any works the carrying out of which may in the Landlord's reasonable
opinion constitute a nuisance or disrupt the businesses or
activities of other tenants or occupiers of the Building or the
Estate or the public shall be performed outside the hours of 9.00 am
to 6.00 pm on Monday to Friday (inclusive)
(b) any works within the Demised Premises affecting the structure of the
Building or any base building systems or centrally controlled
systems within the Building or the Demised Premises shall at the
Landlord's reasonable option be performed at the Tenant's expense by
the Landlord or the Management Company or by contractors designated
by the Landlord at a reasonable time specified by the Landlord and
at a reasonable cost
4.21 Alienation
4.21.1
(a) Not to assign or charge any part or parts (as distinct from the
whole) of the Demised Premises and not to agree so to do
(b) Not to part with possession of or share the occupation of the whole
or any part or parts of the Demised Premises or agree so to do
(otherwise than conditionally upon obtaining the Landlord's consent
in accordance with the terms of this Lease) or permit any person to
occupy the same save by way of an assignment or underlease of the
whole of the Demised Premises or an underlease of a Permitted Part
thereof (as
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hereinafter defined) in accordance with the provisions of this
Clause PROVIDED THAT nothing contained in this Clause shall prevent
the Tenant from sharing occupation of the whole or any part or parts
of the Demised Premises with a company which is and remains a Group
Company of the Tenant so long as such occupation shall not create
the relationship of landlord and tenant between the Tenant and the
Group Company and notice of the sharing of occupation and the name
of the Group Company concerned is given to the Landlord within ten
(10) Working Days after the sharing begins
(c) Not to underlet any part or parts of the Demised Premises (as
distinct from the whole) otherwise than on the following
conditions:-
(i) each floor of the Demised Premises shall not at any time be in
the occupation of more than four (4) Entities the Tenant and
any Group Company of the Tenant sharing occupation with the
Tenant pursuant to the proviso to Clause 4.21.1(b) counting as
one
(ii) each separate unit of accommodation to be underlet or retained
shall comprise not less than four thousand square feet on a
single floor and shall be capable of being occupied and used
as a separate and self-contained unit with all necessary and
proper services ("a Permitted Part") and
(iii) if the Landlord shall reasonably so require, the Tenant shall
obtain an acceptable guarantor for any proposed undertenant
and such guarantor shall execute and deliver to the Landlord a
deed containing covenants by that guarantor (or, if more than
one, joint and several covenants) with the Landlord, as a
primary obligation, in the terms contained in the Fourth
Schedule (with any necessary changes) or in such other terms
as the Landlord may reasonably require and
(iv) prior to the grant of any underlease of a Permitted Part
(which comprises less than a whole floor) an order of the
Court shall be obtained under the provisions of Section 38(4)
of the Landlord and Tenant Act 1954 authorising the exclusion
of Sections 24 to 28 of the said Act in relation to such
intended underlease and the said intended underlease shall
contain provisions excluding Sections 24 to 28 of the said Act
(d) Not to underlet the whole of the Demised Premises otherwise than on
the condition that if the Landlord shall reasonably so require, the
Tenant shall obtain an acceptable guarantor for any proposed
undertenant and such guarantor shall execute and deliver to the
Landlord a deed containing covenants by that guarantor (or, if more
than one, joint and several covenants) with the Landlord, as a
primary obligation, in the terms contained in the Fourth Schedule
(with any necessary changes) or in such other terms as the Landlord
may reasonably require
(e)
(i) Not to underlet the whole of the Demised Premises or a
Permitted Part at a fine or a premium or at a rent less than
the open market rental value of the Demised Premises or (as
the case may be) of a Permitted Part in each case at the time
of such underlease
-15-
(ii) No underletting of the whole or any part of the Demised
Premises can take place on terms whereby any rent-free or
concessionary rent period or financial inducement given is not
previously approved by the Landlord
(f) Without prejudice to the foregoing provisions not to charge or
underlet the whole of the Demised Premises nor to underlet a
Permitted Part without the prior written consent of the Landlord
such consent not to be unreasonably withheld nor to assign the whole
of the Demised Premises otherwise that in strict compliance with
Clause 4.21.2
(g) Prior to any permitted underlease to procure that the undertenant
enters into direct covenants with the Landlord and the Management
Company as follows:-
(i) an unqualified covenant by the undertenant that the
undertenant
(A) shall not assign or charge (or agree so to do) any part
or parts (as distinct from the whole of the premises to
be thereby demised); and
(B) shall not (save by way of an assignment or underlease of
the whole or (if the undertenant is the undertenant of
the whole of the Demised Premises) an underlease of a
Permitted Part) part with possession of or share the
occupation of the whole or any part of the premises to
be thereby demised or agree so to do or permit any
person to occupy the same
(ii) a covenant by the undertenant that the undertenant shall not
assign charge or underlet (or agree so to do) the whole of the
premises to be thereby demised or underlet (or agree so to do)
a Permitted Part without (in each case) obtaining the prior
written consent of the Landlord such consent not to be
unreasonably withheld
(iii) a covenant by the undertenant to perform and observe all the
tenant's covenants and the other provisions contained in
(1) this Lease (other than the payment of the rents) so far
as the same are applicable to the premises to be thereby
demised and including in particular (but without
limitation) the conditions set out in Clause 4.21.1(c);
and
(2) the permitted underlease
(h) Every permitted underlease shall contain:-
(i) provisions for the review of the rent thereby reserved (which
the Tenant hereby covenants to operate and enforce) on an
upwards only basis on the dates for review specified in the
Particulars to this Lease in accordance with the provisions
set out in the Third Schedule hereto mutatis mutandis and with
references to "Assumed Premises" being deemed to be references
to premises demised by the permitted underlease
(ii) a covenant by the undertenant (which the Tenant hereby
covenants to enforce) prohibiting the undertenant from doing
or suffering any act or thing in relation to the premises
underlet in breach of the provisions of this Lease
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(iii) a condition for re-entry on breach of any covenant by the
undertenant
(iv) (subject to the provisions of Clause 4.21.1(g)) the same
provisions (mutatis mutandis) as are set out in Clause 4.21.2
(i) When reasonably required to enforce the performance and observance
by every such undertenant of the covenants provisions and conditions
of the underlease and not at any time knowingly or formally to waive
any breach of the same
(j) To procure that the principal rent is reviewed under any permitted
underlease in accordance with the terms thereof and not to agree any
reviewed rent with the undertenant at less than the then open market
rent and in any event not without prior consultation with the
Landlord
(k) Not to vary the terms of any permitted underlease (or agree so to
do) without the prior written consent of the Landlord such consent
not to be unreasonably withheld
(l) To procure that the rents reserved by any permitted underlease shall
not be commuted or payable more than one quarter in advance and not
to permit the reduction of any rents reserved by any such underlease
4.21.2 (a) For the purposes of Section 19(1A) of the Landlord and Tenant Act
1927 it is agreed that the Landlord may withhold consent to an
assignment of the whole of the Demised Premises if:-
(i) the proposed assignee is not an Acceptable Assignee; or
(ii) the proposed assignee is a company which is a Group Company of
the Tenant unless such proposed assignee is also an Acceptable
Assignee pursuant to clause 1.1(a); or
(iii) the proposed assignee or any proposed guarantor for it (other
than any guarantor under an authorised guarantee agreement as
referred to in Clause 4.21.2(b)(i)) is any person or Entity
who has the right to claim sovereign or diplomatic immunity or
exemption from liability from the covenants on the part of the
Tenant contained in this Lease; or
(iv) at the time of application for consent the proposed assignee
or any proposed guarantor for it (other than any guarantor
under an authorised guarantee agreement as referred to in
Clause 4.21.2(b)(i)) is any person or Entity in relation to
whom any of the events mentioned in Clause 8.1 of this Lease
would have occurred if that person or Entity were the Tenant
under this Lease; or
(v) the Initial Rent remains unpaid; or
(vi) in the Landlord's reasonable opinion there is a material
outstanding breach of covenant on the part of the Tenant
which relates to the repair of the Demised Premises unless the
proposed assignee (being an Acceptable Assignee) covenants
unconditionally with both the Landlord and the Management
Company to remedy such breach as soon as reasonably
practicable
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(b) For the purposes of S19 (lA) of the Landlord and Tenant Act 1927
and S16 of the Landlord and Tenant (Covenants) Act 1995 it is
further agreed that any consent of the Landlord to an assignment
of the whole of the Demised Premises may be subject to:
(i) a condition requiring that before the Tenant completes the
assignment of this Lease the Tenant and any party who has
covenanted on its behalf as Surety jointly and severally
execute and deliver to the Landlord a deed which shall be
prepared by the Landlord's solicitors containing covenants
on the part of the Tenant and the Surety in the form of
those contained in the Eighth Schedule
(ii) a condition that the assignment is completed and registered
with the Landlord in accordance with Clause 4.22 within two
(2) months of the date of the consent and that if it is not
the consent shall be void but any of the guarantees referred
to in Clauses 4.21.2(b)(i) and 4.21.2(b)(iii) shall
nevertheless remain in full force and effect
(iii) a condition that before the Tenant completes the assignment
of the Lease, if the Landlord acting reasonably determines
it to be necessary, one or more guarantors acceptable to the
Landlord, acting reasonably, covenant by deed with the
Landlord in the form of guarantee set out in the Fourth
Schedule
(iv) a condition that prior to any permitted assignment it is
procured that the assignee enters into a direct covenant
with the Landlord and the Management Company that with
effect from the date of the assignment until the first
subsequent assignment which is not an excluded assignment
(as the expression is defined in the Landlord and Tenant
(Covenants) Act 1995) the proposed assignee will pay the
rents hereby reserved and perform and observe the covenants
by the Tenant contained in this Lease
(c) Without prejudice to the provisions of Clauses 4.21.2(a) and (b)
the Tenant shall not assign the whole of the Demised Premises
without the prior written consent of the Landlord and except in
relation to the circumstances mentioned in Clause 4.21.2(a) and
the conditions mentioned in Clause 4.21.2(b) such consent shall
not be unreasonably withheld. The parties agree that in
considering whether or not the Landlord is reasonably withholding
such consent due and proper regard shall be had to the provisions
and effect of the Landlord and Tenant (Covenants) Act 1995
(d) Clauses 4.21.2(a) and 4.21.2(b) shall operate without prejudice
to the Landlord's right to refuse such consent on any other
ground or grounds where such refusal would be reasonable or to
impose further conditions upon the grant of consent where such
imposition would be reasonable and the Landlord may at any time
during the Term abandon any of the circumstances set out in
Clause 4.21.2(a) and/or any of the conditions referred to in
Clause 4.21.2(b) by serving written notice to that effect on the
Tenant and upon service of any such notice in the circumstance(s)
or condition(s) therein specified shall be deemed to be deleted
from this Lease and be of no further effect
4.21.4 Any question of whether or not any of the circumstances set out in
Clause 4.21.2(a) exist in relation to a proposed assignment of the
whole of the Demised Premises or as to whether any of the conditions
referred to in Clause 4.21.2(b) should be imposed shall be determined
by the Landlord and if the Landlord determines that any such
circumstances exist and as a consequence of it wishes to withhold its
consent to the proposed assignment, or that any
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such conditions should be imposed, the Landlord shall give written
notice to that effect to the Tenant and such notification shall be
binding on the Tenant unless the Tenant serves on the Landlord a
counternotice ("the Counternotice") within ten (10) Working Days
requiring the Landlord's determination to be reviewed by an expert in
accordance with the Ninth Schedule
4.22 Registration of dispositions
Within twenty-one (21) days of every assignment transfer assent
underlease assignment of underlease mortgage charge or any other
disposition whether mediate or immediate of or relating to the whole
or any part or parts of the Demised Premises to supply to the Landlord
a copy certified by the Tenant's solicitors of the document evidencing
or effecting such disposition and on each occasion to pay to the
Landlord or its solicitors a reasonable registration fee
4.23 Disclosure of information
Whenever the Landlord shall reasonably request to supply full
particulars of all occupations and derivative interests in the Demised
Premises however remote or inferior
4.24 Landlord's costs
Within ten (10) Working Days of demand, to pay and indemnify the
Landlord the Management Company any Superior Landlord and any
mortgagee against all reasonable costs fees charges disbursements and
expenses properly incurred by them:-
(a) in relation to or in contemplation of the preparation and service
of a notice under Section 146 of the Law of Property Act 1925 and
of any proceedings under Section 146 or 147 of that Act (whether
or not any right of re-entry or forfeiture has been waived by the
Landlord or a notice served under Section 146 is complied with by
the Tenant or the Tenant is relieved under the provisions of that
Act and even though forfeiture may be avoided otherwise than by
relief granted by the Court)
(b) in relation to or in contemplation of the preparation and service
of all notices and schedules relating to wants of repair whenever
served (but relating only to such wants of repair that accrued
during the Term)
(c) in connection with the recovery or attempted recovery of arrears
of rent or other sums due from the Tenant or in procuring the
remedying of the breach of any covenant by the Tenant
(d) in relation to any application for consent required or made
necessary by this Lease (such costs to include reasonable
management and monitoring fees and expenses) whether or not the
same is granted (except in cases where the Landlord is obliged
not to unreasonably withhold its consent and the withholding of
its consent is unreasonable) or whether the application be
withdrawn
4.25 Statutory requirements
(a) At the Tenant's own expense in relation to the Demised Premises
to comply in all respects with every statute now in force or
which may after the date of this Lease be in force and any other
obligation imposed by law and all regulations laws or directives
made or issued by or with the authority of The European
Commission
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and/or The Council of Ministers relating to the Demised Premises
or their use, including the Offices, Shops and Railway Premises
Act 1963, the Fire Precautions Act 1971, the Defective Premises
Act 1972, the Health and Safety at Work etc. Act 1974 and the
Environmental Protection Act 1990
(b) To execute all works and provide and maintain all arrangements on
or in respect of the Demised Premises or their use which are
required by any statute now in force or which may after the date
of this Lease be in force or by any government department, local,
public or other competent authority or court of competent
jurisdiction acting under or in pursuance of any statute, whether
any of the same are required to be carried out by the landlord,
tenant or occupier, and shall indemnify the Landlord against all
costs, charges, fees and expenses of, or incidental to, the
execution of any works or the provision or maintenance of any
arrangements so required
(c) Not to do or omit to be done in or near the Demised Premises any
act or thing by reason of which the Landlord or any other
occupier may under any statute or non-statutory regulations
become liable to pay any penalty damages compensation costs
charges or expenses
4.26 Planning Acts
(a) To comply with the provisions and requirements of the Planning
Acts in relation to the Demised Premises and to indemnify and
keep the Landlord indemnified against all actions proceedings
demands costs expenses and liability in respect of any
contravention thereof by the Tenant or those deriving title under
or through it
(b) Not to apply for planning permission or for other consents
required under the Planning Acts in respect of the Demised
Premises or for certificates or determinations as to lawful use
without the prior written consent of the Landlord, such consent
not to be unreasonably withheld where under the relevant
provisions of this Lease the consent of the Landlord is not
required or cannot be unreasonably withheld in respect of the
matters the subject of the application
(c) At the Tenant's own expense to obtain and, if appropriate, renew
any planning permission and any other consent and serve all
necessary notices required for the carrying out by the Tenant of
any operations or the commencement or continuance of any use of
the Demised Premises
(d) To pay and satisfy any charge or levy that may hereafter be
imposed under the Planning Acts in respect of any Development
carried out by the Tenant on or at the Demised Premises
(e) The Tenant shall not implement any planning permission or consent
required under the Planning Acts before it has been produced to
and approved in writing by the Landlord such approval not to be
unreasonably withheld but the Landlord may refuse to approve such
planning permission or consent on the grounds that any condition
contained in it, or anything omitted from it, or the period
referred to in it, would in the reasonable opinion of the
Landlord, be or be likely to be prejudicial to the Landlord's
interest in the Demised Premises or the Estate or the Adjoining
Property, whether during or following the expiration or earlier
determination of the Term
(f) Unless the Landlord shall otherwise direct to carry out and
complete before the expiration or sooner determination of the
Term:-
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(i) any works stipulated to be carried out to the Demised
Premises as a condition of any planning permission granted
during the Term and implemented by the Tenant or any
undertenant and
(ii) any Development begun upon the Demised Premises in respect
of which the Landlord shall or may be or become liable for
any charge or levy under the Planning Acts
(g) If and when called upon so to do to produce to the Landlord on
demand all plans documents and other evidence as the Landlord may
reasonably require in order to satisfy itself that the provisions
of this Clause have been complied with in all respects
4.27 Statutory notices
Within fourteen (14) days after receipt of the same (or sooner if
requisite having regard to the time limits stated therein) to produce
to the Landlord a copy and any further particulars required by the
Landlord of any notice or order or proposal for the same given to the
Tenant and relevant to the Demised Premises or the occupiers thereof
or of the Building or of the Estate and without delay to take all
necessary steps to comply with the notice or order so far as the same
is the responsibility of the Tenant and at the request of the Landlord
but at the cost of the Tenant to make or join with the Landlord in
making such objection or representation against or in respect of any
such notice order or proposal as the Landlord shall reasonably deem
expedient
4.28 Defective premises
Immediately upon becoming aware of the same, to give written notice to
the Landlord of any defect in the Demised Premises which might give
rise to an obligation on the Landlord to do or refrain from doing any
act or thing so as to comply with the duty of care imposed on the
Landlord pursuant to the Defective Premises Act 1972 and at all times
to display and maintain all notices which the Landlord may from time
to time reasonably require to be displayed in relation thereto
4.29 Fire precautions and equipment etc.
To comply with the requirements and recommendations of the fire
authority and/or the insurers of the Demised Premises and the
reasonable requirements of the Landlord in relation to fire
precautions affecting the Demised Premises
4.30 Encroachments and easements
(a) Not to stop up or obstruct any of the windows or lights belonging
to the Demised Premises nor to permit any new window opening
doorway passage Pipes or other encroachment or easement to be
made or acquired into upon or over the Demised Premises or any
part thereof and in case any person shall attempt to make or
acquire any encroachment or easement to give written notice
thereof to the Landlord immediately the same shall come to the
notice of the Tenant and at the request of the Landlord to adopt
such means as may be reasonably required by the Landlord for
preventing any such encroachment or the acquisition of any such
easement
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(b) Not to give to any person any acknowledgement that the Tenant
enjoys the access of light to any of the windows or openings of
the Demised Premises by the consent of such person nor to pay
any sum of money or enter into any agreement with any person for
the purpose of inducing or binding such person to abstain from
obstructing the access of light to any of the windows or
openings and in the event of any person doing or threatening to
do anything which obstructs the access of light to any of the
windows or openings forthwith to notify the Landlord of the same
4.31 Reletting and sale notices
Subject to Clause 8.18 to permit the Landlord at all reasonable times
to enter upon the Demised Premises and affix and retain without
interference upon any suitable parts of the Building (but not so as
materially to affect the use and enjoyment thereof or the access of
light and air to the Demised Premises) during the three (3) months
preceding the expiration or sooner determination of the Term notices
for reletting the same and not to remove or obscure the said notices
and to permit all persons with the written authority of the Landlord
to view the Demised Premises at all reasonable hours in the daytime
upon prior appointment having been made
4.32 Indemnity
To keep the Landlord and the Management Company fully indemnified
from and against all actions proceedings claims demands losses costs
expenses damages and liability arising from any breach of the
Tenant's covenants or other obligations contained in or documents
supplemental to this Lease Provided That the Landlord and Management
Company shall take such steps as shall be reasonable to mitigate such
loss having regard to the nature of the breach
4.33 Value Added Tax
4.33.1 Where by virtue of any of the provisions of this Lease (i) the
Tenant is required to pay repay or reimburse to the Landlord or the
Management Company or any person or persons any rents costs charges
fees expenses or any other sums or amounts whatsoever in respect of
the supply of any goods and/or services by or to the Landlord or the
Management Company or any other person or persons or (ii) there is a
supply of goods or services deemed to be made for Value Added Tax
purposes to the Tenant by the Landlord or the Management Company
whether or not for payment then the Tenant shall pay in addition or
(as the case may be) to keep the Landlord and the Management Company
indemnified (on an after-tax basis) against:-
(a) the amount of any Value Added Tax which is or may be chargeable
on the supply of any goods and/or services as aforesaid to the
Tenant against provision of a VAT invoice and
(b) the amount of any Value Added Tax chargeable in respect of
supplies or self-supplies made to the Landlord or the Management
Company the cost of which is included in the calculation of the
sums which the Tenant is required to pay repay or reimburse to
the Landlord or the Management Company or in respect of which
the Tenant is required to indemnify the Landlord or the
Management Company save and to the extent where in any such
case, the Landlord or the Management Company (as the case may
be) obtain a credit for such Value Added Tax as "input tax"
under the provisions of Sections 25 and 26 of the Value Added
Tax Act 1994
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For the avoidance of doubt neither the Landlord nor the Management
Company shall be under a duty to exercise or not to exercise any
option or right conferred on the Landlord or the Management Company by
the legislation relating to Value Added Tax (including any regulations
made thereunder) so as to reduce or avoid any liability to Value Added
Tax referred to in (a) or (b) above or so as to entitle or enable the
Landlord or the Management Company (as the case may be) to so obtain a
credit for such Value Added Tax as referred to in (b) above
4.33.2 Until (whether a result of a Landlord's election or otherwise) VAT
is charged on the Rent not at any time during the Term to make an
election pursuant to paragraph 2 of Schedule 10 to the Value Added Tax
Act 1994 or otherwise, the effect of which would be that VAT could be
chargeable on rents payable by the Tenant to the Landlord in relation
to the Demised Premises or the Building
4.33.3 If the Landlord has made an election as contemplated in Clause 6.4
hereof or if the Landlord has notified the Tenant that it is
contemplating making such an election to notify the Landlord as soon
as reasonably practicable of the amount of any Value Added Tax payable
by the Tenant (as referred to in Clause 6.4) that is or will become
Irrecoverable VAT
4.33.4 To keep the Landlord on written request informed of the extent to
which any Value Added Tax payable by the Tenant as referred to in
Clause 6.4 is Irrecoverable VAT
4.33.5 Upon any claim by the Tenant under Clause 6.4 to provide the
Landlord with evidence acceptable to the Landlord (such evidence to
comprise a certificate to that effect given by the Tenant's auditors)
that any Value Added Tax payable by the Tenant is Irrecoverable VAT
and specifying for each "Prescribed Accounting Period" (as that
expression is used in Section 25(1) of the Value Added Tax Act 1994)
of the Tenant the amount of the Irrecoverable VAT
4.33.6 If the Tenant is entitled to an indemnity payment under Clause 6.4
the Tenant shall be entitled to set such indemnity payment (together
with interest at Base Rate from the date that the payment was due from
the Landlord until the date of payment) off against the Value Added
Tax payable under this Clause 4.33 to which that indemnity payment
relates and to pay only the net amount
4.33.7 The Tenant shall notify the Landlord as soon as reasonably
practicable after becoming aware of any matter giving rise to a right
of indemnification under Clause 6.4 and shall consider in good faith
any request made by the Landlord that the Tenant contests the
recoverability as Value Added Tax of the Tenant's Irrecoverable VAT
giving rise to such right of indemnification by appropriate means
Provided Always that this Clause 4.33 shall not:-
(a) impose any obligation on the Tenant to disclose any information
concerning its Value Added Tax affairs to the Landlord or any
other person; or
(b) require the Tenant is initiate proceedings against H M Customs &
Excise in relation to any such Tenant's Irrecoverable VAT
4.34 Regulations
Insofar as the same relate to the Demised Premises or the activities
acts or omissions of the Tenant or any undertenant or any persons
under its or their control to comply or procure compliance with the
Regulations
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4.35 Covenants affecting reversion
To perform and observe the provisions of the deeds and documents
referred to in the Fifth Schedule hereto so far as the same are still
subsisting and capable of taking effect and relate to or affect the
Demised Premises
4.36 Landlord and Tenant (Covenants) Act 1995; Landlord's Release
Not unreasonably to withhold or delay its consent to an application by
the Landlord or the Landlord's Guarantor for a release of their
obligations hereunder pursuant to the Landlord and Tenant (Covenants)
Act 1995
5. MANAGEMENT COMPANY'S COVENANTS
THE Management Company COVENANTS with the Tenant and as a separate
covenant with the Landlord (subject to and conditional upon the Tenant
making payments in accordance with Clause 9 and subject as provided in
Clauses 8.4 and 8.5) to perform and observe or procure to be performed
and observed such of the Building Services (during Business Hours and
at other times requested by the Tenant pursuant to Clause 8.9 hereof)
and the Estate Services as shall be necessary for the reasonable
beneficial enjoyment and use of the Demised Premises PROVIDED THAT
neither the Landlord nor the Management Company shall be liable to the
Tenant in respect of any failure or interruption or delay in the
provision of any of such services caused by Force Majeure
6. LANDLORD'S COVENANTS
THE Landlord COVENANTS with the Tenant:-
6.1 Quiet Enjoyment
That the Tenant paying the rents reserved by this Lease and performing
and observing the covenants on the part of the Tenant herein contained
may peaceably hold and enjoy the Demised Premises during the Term
without any interruption by the Landlord or any person lawfully
claiming through under or in trust for it
6.2 Management Company's Obligations
To procure that the Management Company or the Landlord will perform
the covenants on the part of the Management Company contained in this
Lease
6.3 Superior Title
By way of indemnity only against any claims by any Superior Landlord
to pay the rents reserved by and (save insofar as the same are the
responsibility of the Tenant under this Lease) observe and perform the
conditions and covenants imposed on the lessee in the Superior Lease
and to use all reasonable efforts to procure that the Superior
Landlord observes and performs the conditions and covenants imposed on
the lessor in the Superior Lease
6.4 Value Added Tax
In the event that the Landlord shall by its voluntary act make before
or during the Term an election pursuant to paragraph 2 of Schedule 10
to the Value Added Tax Act 1994 in
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relation to all or any part of the Demised Premises (whether with or
without any other property) the Landlord shall indemnify the Tenant on
written demand (on an after tax basis) for any Value Added Tax payable
by the Tenant in relation to supplies made by the Landlord to the
Tenant by reason of this Lease to the extent that such Value Added Tax
is Irrecoverable VAT except always:-
(a) such indemnity shall not apply where such election is made
following any destruction or damage to the Building and the
Landlord elects or is required to rebuild or reinstate the
Building; or
(b) where such election is made following any change of the law by
virtue of which there is an increase or change in the amount or
incidence of Value Added Tax incurred by the Landlord in relation
to the Building or the Demised Premises unless the only effect of
the change of law in question is an increase in the rate of Value
Added Tax in which case the Indemnity given by the Landlord
pursuant to this Clause 6.4 will after any such change apply as
if the VAT rate had remained at 17.5% notwithstanding such
increase in the rate; or
(c) where the Tenant is in breach of its covenant in Clause 4.33.2
and subject always to the Tenant having complied with the covenants on
its part in Clauses 4.33.3, 4.33.4 and 4.33.5
6.5 Naming of Building
Not to name or otherwise identify the Building except with the
previous written consent of the Tenant (such consent not to be
unreasonably withheld or delayed)
6.6 Use
Not to use or permit or suffer to be used Floors 1-3 of the Building
except for the Permitted Use
6.7 Public Open Space
Not prior to 1 April 2022 to build or permit any building and to
procure that there shall be no building on the area shown hatched blue
on Plan 8 save first for incidental or ancillary structures consistent
with its use as a public open space and secondly for skylights into
the underground retail areas and to maintain the same as a public open
space until 1 April 2022
6A. DEFECTS
The Landlord and the Tenant HEREBY COVENANT with one another in the
terms set out in the Tenth Schedule
7. INSURANCE
7.1 Landlord to insure
THE Landlord shall insure and keep insured with some insurance company
of repute or with Lloyd's Underwriters through such agency (if any) as
the Landlord may from time to time determine (whether or not a Group
Company of the Landlord) (subject to such exclusions
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excesses and limitations as may be reasonable or as may from time to
time be imposed by the insurers):-
(a) (i) the Building (including without limitation the Tenant's
Category "A" Works) and
(ii) any installations fittings and equipment resulting from the
carrying out of the Tenant's Category "B" Works or from any
other works (not being works to the structure of the
Building or the Tenant's Category "A" Works) at any time
carried out by the Tenant or any undertenant in accordance
with the terms hereof (in all such cases as notified in
writing to the Landlord) (all such installations fittings
and equipment being hereinafter referred to as "Tenant's
Insured Fittings")
in both such cases against loss or damage by the Insured Risks in
such sum as shall be the full reinstatement cost thereof
including Value Added Tax architects' surveyors' and other
professional fees and expenses incidental thereto the cost of
shoring up demolition and site clearance and similar expenses
(b) loss of the Rent and the rents reserved under Clauses 3(c) and
3(e) payable under this Lease (making due allowance for increases
provided for in the Third Schedule) for seven (7) years or such
longer period as the Landlord may from time to time reasonably
deem to be necessary having regard to the likely period required
for obtaining planning permission and reinstating the Building
and the Tenant resuming occupation or as the Tenant may in
writing request if greater
(c) any engineering and electrical plant and machinery being part of
the Building against sudden and unforeseen damage breakdown and
inspection to the extent that the same is not covered by
paragraph (a) of this Clause
(d) property owner's liability and such other insurances as the
Landlord may from time to time reasonably deem necessary to
effect
7.2 Commissions and restriction on Tenant insuring
(a) The Landlord shall be entitled to retain and utilise as it sees
fit any reasonable and proper commission attributable to the
placing of such insurances and the payment of any insurance sums
and the Landlord shall use reasonable endeavours to obtain in any
property insurance policy effected pursuant to the Landlord's
insurance obligations set out in Clause 7.1(a)-(d) (inclusive)
and at the sole cost and expense of the Tenant a waiver of
subrogation against the Tenant
(b) The Tenant shall not take out any insurances in respect of the
Demised Premises or in respect of any other matters which the
Landlord is required to insure under Clause 7.1
7.3 Landlord's fixtures and Tenant's Insured Fittings
The Tenant shall notify the Landlord in writing of the full
reinstatement cost of any fixtures and fittings installed at any time
and which are or may become landlord's fixtures and fittings and of
all Tenant's Insured Fittings for the purpose of enabling the Landlord
to effect adequate insurance cover for the same
-26-
7.4 Landlord to produce evidence of insurance
At the request of the Tenant the Landlord shall produce to the Tenant
reasonable evidence of the terms of the insurance policy and the fact
that the policy is subsisting and in effect and the Landlord shall
notify the Tenant of any significant change of cover
7.5 Cesser of rent
In case the Estate Common Parts the Building or in either case any
part thereof shall be destroyed or damaged by any of the Insured Risks
so as to render the Demised Premises unfit for use and occupation or
inaccessible for the Permitted Use and to the extent that the
insurance shall not have been vitiated or payment of the policy moneys
refused in whole or in part as a result of some act or default of the
Tenant any undertenant or occupier of any part of the Demised Premises
(or those spaces designated for the use by the Tenant within the car
parking area comprised within the Building) or any of their respective
agents, licensees, visitors or contractors or any person under the
control of any of them then the Rent and the rents reserved under
Clauses 3(c) and 3(e) or a fair proportion thereof according to the
nature and extent of the damage sustained shall be suspended until the
Demised Premises or the part destroyed or damaged shall be again
rendered fit for use and occupation and/or accessible or until the
expiration of seven (7) years (or such other longer period as shall be
insured by the Landlord) from the date of the destruction or damage
(whichever is the earlier) and any dispute regarding the cesser of
rent shall be referred to a single arbitrator to be appointed, in
default of agreement, upon the application of either party, by or on
behalf of the President for the time being of The Royal Institution of
Chartered Surveyors in accordance with the provisions of the
Arbitration Act 1996 Provided That under no circumstances shall the
amount of the rents which cease to be payable hereunder exceed the
amount received by the Landlord in respect of the loss of rent
insurance
7.6 Destruction of the Building
If the Building or any part thereof or any necessary access thereto is
destroyed or damaged by any of the Insured Risks then:-
(a) unless payment of the insurance moneys shall be refused in whole
or in part by reason of any act or default of the Tenant any
undertenant or occupier of any part of the Demised Premises or
any of their respective agents, licensees, visitors or
contractors or any person under the control of any of them and
(b) subject to the Landlord being able to obtain any necessary
planning permission and all other necessary licences, approval
and consents (which the Landlord shall use its reasonable
endeavours to obtain but shall not be obliged to institute any
appeals in any case where leading counsel advises the Landlord
that there is a less than 50% chance of success) and
(c) subject to the necessary labour and materials being and remaining
available
the Landlord shall (subject to Clause 7.7) FIRST rebuild and reinstate
the premises so destroyed or damaged (excluding Tenant's Insured
Fittings) substantially as the same were prior to any such destruction
or damage (but not so as necessarily to provide accommodation
identical in layout) AND SECONDLY (if any Tenant's Insured Fittings
shall have been destroyed or damaged) pay to the Tenant the net
proceeds (subject to the deduction of any excess by the insurers) of
such insurance applicable to the Tenant's Insured Fittings (as
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defined in Clause 7.1(a)(ii) up to the value of the Tenant's Insured
Fittings destroyed or damaged (such value in default of agreement to
be settled by arbitration in the manner provided for in Clause 7.5)
7.7 Option to determine
If:-
(i) during the last seven (7) years of the Term the Building or a
substantial proportion thereof shall be so destroyed or damaged
by any of the Insured Risks as to render the entirety of the
Demised Premises unfit for or incapable of use and occupation or
inaccessible then the Landlord or the Tenant may determine this
Lease by giving to the other and the Management Company not less
than six (6) months' written notice to be given at any time
within twelve (12) months after such destruction or damage; or
(ii) if the Building or a substantial proportion thereof shall be so
destroyed or damaged by any of the Insured Risks as to render the
entirety of the Demised Premises unfit for or incapable of use
and occupation or inaccessible and the Landlord shall fail to
rebuild and reinstate the premises so destroyed or damaged
substantially as the same were prior to any such destruction or
damage (but not so as necessarily to provide accommodation
identical in layout) within seven (7) years of such destruction
or damage either party may determine this Lease by giving to the
other and the Management Company not less than three (3) months'
prior written notice to be given at any time after the seventh
anniversary of such damage or destruction but prior to completion
of the such rebuilding or reinstatement
and such determination shall be without prejudice to any claim by
either party against the other in respect of any antecedent breach of
covenant Provided That if this Lease shall be determined then the
Landlord shall not be required to rebuild or reinstate the premises so
destroyed or damaged and the net proceeds of such insurance shall be
applied by the Landlord as follows:-
(b) the moneys representing loss of rents shall belong to the
Landlord absolutely
(c) the Landlord shall be first entitled absolutely to moneys
representing the full reinstatement cost of the Building
(excluding Tenant's Insured Fittings and Other Insured Fittings)
with Value Added Tax architects' surveyors' and other
professional fees and expenses incidental thereto and the cost of
shoring up demolition and site clearance and similar expenses
(all as estimated at the date of the Landlord's notice) having
regard to the likely period required for obtaining planning
permission and all other necessary consents and for reinstating
the Demised Premises such estimated amount to be agreed between
the Landlord and the Tenant and in default of agreement to be
settled by arbitration in the manner provided for in Clause 7.5
(d) any moneys then remaining up to the value of any Tenant's Insured
Fittings destroyed or damaged (such value in default of agreement
to be settled by arbitration in the manner provided for in Clause
7.5) shall belong to the Tenant absolutely and so that if other
insured fittings are damaged or destroyed and have been included
in the Landlord's insurance policy the moneys remaining after the
expenditure required for the rebuilding and reinstatement of the
Building (excluding Tenant's Insured Fittings and other insured
fittings) shall be apportioned between the Demised Premises and
other Lettable Areas in the Building in proportion to the
respective
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declared values of the insured fittings therein at the date of such
damage or destruction
(e) any further moneys then remaining shall belong to the Landlord
absolutely
7.8 Payment of insurance moneys refused
If the payment of any insurance moneys is refused as a result of some act
or default of the Tenant any undertenant or occupier of any part of the
Demised Premises or any of their respective agents, licensees, visitors or
contractors or any person under the control of any of them the Tenant shall
pay to the Landlord on demand the amount so refused except to the extent
that it relates to Tenant's Insured Fittings
7.9 Insurance becoming void
Subject to the Tenant receiving a copy of the policy or relevant extracts
thereof the Tenant shall not do or omit to do anything that could cause any
policy of insurance in respect of or covering the Demised Premises or the
Building or any Adjoining Property to become void or voidable wholly or in
part nor (unless the Tenant has previously notified the Landlord and agreed
to pay the increased premium) anything whereby any increased or loaded
premium may become payable and the Tenant shall on demand pay to the
Landlord all increased expenses incurred by the Landlord in renewing any
such policy
7.10 Requirements of insurers
The Tenant shall at all times comply with all the requirements of the
Landlord's insurers so far as such requirements are notified in writing to
the Tenant and relate to the Demised Premises or the conduct of persons
using the Building or the Estate
7.11 Notice by Tenant
The Tenant shall give notice to the Landlord forthwith upon the happening
of any event or thing which might affect or give rise to a claim under any
insurance policy relating to the Demised Premises or the Building or any
Adjoining Property
7.12 Benefit of other insurances
If the Tenant shall become entitled to the benefit of any insurance on the
Demised Premises which is not effected or maintained in pursuance of the
obligations herein contained then the Tenant shall apply all moneys
received from such insurance (insofar as the same shall extend) in making
good the loss or damage in respect of which the same shall have been
received
7.13 Uninsured Risks
In the event of the Estate Common Parts the Building or in either case any
part thereof being destroyed or damaged by an uninsured risk so as to
render the Demised Premises or the car parking area unfit for use and
occupation or inaccessible either party may terminate this Lease by not
less than one (1) month's written notice to the other and the Management
Company to be given at any time after four (4) years of such damage or
destruction but prior to completion of the rebuilding or reinstatement of
such damage or destruction and such determination shall be without
prejudice to any claim by either party against the other in respect of any
antecedent breach of covenant
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7.14 Suspension of Rent Free Period
If any damage or destruction referred to in the foregoing subclauses of
this Clause 7 shall occur at any time after the date of grant of this Lease
and prior to the Rent Commencement Date then the Rent Commencement Date
shall be extended by one day for every day during which the Demised
Premises or the spaces designated for use by the Tenant within the car
parking area are unfit for occupation and use
8. PROVISOS
PROVIDED ALWAYS AND IT IS HEREBY AGREED AND DECLARED as follows:-
8.1 Forfeiture
Without prejudice to any other right remedy or power herein contained or
otherwise available to the Landlord or the Management Company:-
(a) if any of the rents reserved by this Lease or any part of them shall
be unpaid for fourteen (14) days after becoming payable (whether
formally demanded or not) or
(b) if any of the covenants by the Tenant contained in this Lease shall
not be performed and observed or
(c) if the Tenant for the time being, and/or the Surety (if any) (being a
body corporate):-
(i) calls, or a nominee on its behalf calls, a meeting of any of its
creditors; or makes an application to the Court under Section
425 of the Companies Act 1985; or submits to any of its
creditors a proposal under Part I of the Insolvency Act 1986; or
enters into any arrangement, scheme, compromise, moratorium or
composition with any of its creditors (whether under Part I of
the Insolvency Act 1986 or otherwise); or
(ii) has an administrative receiver or a receiver or a receiver and
manager appointed in respect of the Tenant's or the Surety's
property or assets or any part; or
(iii) resolves or the directors or shareholders resolve to present a
petition for an administration order in respect of the Tenant or
the Surety (as the case may be); or an administrator is
appointed; or
(iv) has a winding-up petition or petition for an administration
order presented against it; or passes a winding-up resolution
(other than a voluntary winding-up whilst solvent for the
purposes of an amalgamation or reconstruction which has the
prior written approval of the Landlord); or calls a meeting of
its creditors for the purposes of considering a resolution that
it be wound-up voluntarily; or resolves to present its own
winding-up petition; or is wound-up (whether in England or
elsewhere); or has a liquidator or provisional liquidator
appointed; or
(v) shall cease for any reason to maintain its corporate existence;
or is struck off the register of companies; or otherwise ceases
to exist; or
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(d) if the Tenant for the time being and/or the Surety (if any)
(being an individual or if more than one individual, then any one
of them) makes an application to the Court for an interim order
under Part VIII of the Insolvency Act 1986 or convenes a meeting
of or enters into any arrangement scheme compromise moratorium or
composition with any of his creditors or any of them (whether
pursuant to Part VIII of the Insolvency Act 1986 or otherwise) or
has a bankruptcy petition presented against him or is adjudged
bankrupt or has a receiver appointed in respect of the Tenant's
or the Surety's property or assets or any part; or
(e) if analogous proceedings or events to those referred to in this
Clause shall be instituted or occur in relation to the Tenant,
for the time being, and/or the Surety (if any) elsewhere than in
the United Kingdom; or
(f) if the Tenant for the time being, and/or the Surety (if any)
suffers any distress or execution to be levied on the Demised
Premises which is not discharged in full within twenty one (21)
days after the levy has been made; or becomes unable to pay its
debts as and when they fall due
THEN and in any such case the Landlord may at any time thereafter
re-enter the Demised Premises or any part thereof in the name of the
whole and thereupon the Term shall absolutely cease and determine but
without prejudice to any rights or remedies which may then have
accrued to the Landlord or the Management Company against the Tenant
in respect of any antecedent breach of any of the covenants contained
in this Lease
8.2 No implied easements
Nothing herein contained shall impliedly confer upon or grant to the
Tenant any easement right or privilege other than those expressly
granted by this Lease
8.3 Exclusion of warranty as to user
Nothing contained in this Lease or in any agreement leading to its
grant or in any consent granted by the Landlord under this Lease shall
imply or warrant that the Demised Premises may be used under the
Planning Acts for the use herein authorised or any use subsequently
authorised
8.4 Landlord's and Management Company's obligations
Neither the Landlord nor the Management Company shall be liable to the
Tenant in respect of any failure of the Landlord or the Management
Company to perform any of their respective obligations under this
Lease (except the obligation to insure pursuant to Clause 7.1) unless
the Landlord or the Management Company (as the case may be acting as
reasonably competent building managers) knows or ought reasonably to
be aware of such failure and has failed within a reasonable time to
remedy the same and then in such case the Landlord and/or the
Management Company (as the case may be) shall be liable to compensate
the Tenant only for loss or damage sustained by the Tenant after such
reasonable time has elapsed
8.5 Exclusion of Landlord's and Management Company's liability
Neither the Landlord nor the Management Company shall be liable to the
Tenant nor shall the Tenant have any claim against the Landlord or the
Management Company in respect of:-
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(a) any failure or interruption or delay in the provision of Estate
Services or Building Services caused in any case by Force Majeure
but the Management Company shall use its reasonable endeavours to
cause the service in question to be reinstated with the minimum
of delay
(b) any loss or damage or interference or annoyance suffered by the
Tenant during the period reasonably necessary for the carrying
out by the Landlord or the Management Company of works which may
reasonably appear to the Landlord or the Management Company to be
necessary or desirable but the Management Company shall use its
reasonable endeavours to cause the service in question to be
reinstated with the minimum of delay
(c) any loss or inconvenience occasioned by the closing or breakdown
of any mechanical equipment or by the failure of power supply to
any mechanical equipment or whilst any repairs are carried out
thereto but the Management Company shall use its reasonable
endeavours to cause the service in question to be reinstated with
the minimum of delay
(d) any loss of or damage to or theft from any car using the Car Park
or any loss or damage or injury suffered by any driver of or
passenger in such car
8.6 Right for Landlord to perform or to nominate another company to
perform Management Company's obligations
At any time and from time to time during the Term the Landlord may on
giving written notice to the Tenant and the Management Company
nominate another company to undertake or exercise or itself undertake
or exercise any of the obligations rights and discretions of the
Management Company herein contained in which event any references
herein to the Management Company shall be construed as references to
the Landlord or such nominated company and in particular (but without
limitation) any payment due from the Tenant to the Management Company
in respect of the relevant obligations shall be made to the Landlord
or such nominated company
8.7 Development of Adjoining Property
(a) The Tenant shall make no objection or representation nor
institute any proceedings whether by way of injunction or for
damages or otherwise and shall not permit or suffer any
undertenant or other occupier of or any person with any interest
in any part of the Demised Premises to do any such things by
reason or in consequence of any noise disturbance annoyance or
inconvenience occasioned by any works by or on behalf of the
Landlord or the Management Company or any member of the
Landlord's Group or tenant on any Adjoining Property
(b) The Tenant agrees with the Landlord and the Management Company
that notwithstanding any other provision of this Lease the Tenant
will have no claim against the Landlord or the Management Company
in connection with or arising from any works carried out on
beneath or in the vicinity of the Estate for the purpose of or in
connection with maintenance of the London Underground or
Docklands Light Railway system(s)
(c) Not to use or carry out any works on any part of the Demised
Premises or on any part of the Estate in the immediate vicinity
of the Docklands Light Railway for any
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purpose which would materially adversely affect the construction or
operation of the Docklands Light Railway or the use thereof as a
railway station
(d) Not without the prior written consent of the Landlord and the operator
of the Docklands Light Railway (such consent not to be unreasonably
withheld) to install or use or permit to be installed or used on the
Demised Premises or on any part of the Estate in the immediate
vicinity of the tracks upon which the Docklands Light Railway operates
any electrical or electronic apparatus or equipment of an unusual
nature which would cause interference with electrical or electronic
apparatus or equipment used in connection with the operation of the
Docklands Light Railway
8.8 Use of premises outside Business Hours
If the Tenant shall desire to use and occupy the Demised Premises outside
the Business Hours then subject as hereinafter provided the Tenant shall be
entitled to use and occupy the Demised Premises and have access thereto and
enjoy the rights hereby granted outside Business Hours on the following
terms and conditions (which the Tenant hereby covenants with the Landlord
and as a separate covenant with the Management Company to observe and
comply with):-
(a) the Tenant shall comply with all reasonable requirements of the
Landlord or the Management Company as to use and occupation and access
(b) the Tenant shall pay to the Management Company on demand the whole (or
where the services are shared with other tenants a fair proportion as
determined by the Management Company) of the costs and expenses
attributable to such use or the provision of any staff services and
security to the extent that such are provided at a level or to a
degree which would not have been provided but for such use outside
Business Hours
(c) the Management Company shall not be obliged to provide any services to
the Demised Premises or to the Building if the Management Company
shall acting reasonably in the interests of good estate management
consider it impractical to do so
8.9 Notices
(a) Any demand or notice required to be made given to or served on the
Tenant or the Surety under this Lease shall be in writing and shall be
validly made given or served if addressed to the Tenant or the Surety
respectively (and if there shall be more than one of them then any one
of them) and delivered personally or sent by pre-paid registered mail
addressed (in the case of a company) to its last known address and (in
the case of a notice to the Tenant) the Demised Premises
(b) Any notice required to be served on the Landlord or the Management
Company shall be in writing and shall be validly given or served if
addressed to the Landlord or the Management Company respectively and
delivered personally or sent by pre-paid registered mail to its
registered office
8.10 Invalidity of certain provisions
If any term of this Lease or the application thereof to any person or
circumstances shall to any extent be invalid or unenforceable the same
shall be severable and the remainder of this Lease or the application of
such term to persons or circumstances other than those as to
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which it is held invalid or unenforceable shall not be affected thereby and
each term and provision of this Lease shall be valid and be enforced to the
fullest extent permitted by law
8.11 Plans drawings etc
The Landlord and the Management Company shall have an irrevocable and
assignable licence free from any copyright claim as from the expiry or
sooner determination of this Lease to use and reproduce all plans drawings
specifications models and other information required to be furnished by the
Tenant to the Landlord under this Lease but so that the Landlord and the
Management Company shall use the same only in connection with the use
ownership operation maintenance and alteration of the Demised Premises and
the Tenant shall deliver all such documents to the Landlord promptly upon
the expiry or sooner determination of this Lease
8.12 Confidentiality provision
(a) None of the parties to this Lease shall without the prior written
consent of all the other parties to this Lease disclose or publish to
any third party ("Disclosure") or wilfully or negligently permit or
cause Disclosure of any financial or other details whatsoever naming
the parties hereto or otherwise relating to the transaction hereby
effected except:-
(i) any details which must be the subject of Disclosure in order to
comply with any Stock Exchange or any statutory requirements or
the lawful requirements of any regulatory governmental or
official body
(ii) to group companies or professional advisers of each of the
parties who need to know such details and who have first agreed
to be bound by the provisions of this Clause 8.12)
(iii) to the extent necessary to comply with any legal obligation or
legal requirement
(iv) to the extent necessary to comply with or give effect to the
terms of this Lease
(v) to the Inland Revenue or any other governmental, public or
official body for taxation, rating or registration purposes
(vi) to the extent they are already in the public domain, otherwise
than as a result of a breach of this Clause 8.12
(b) This Clause 8.12 shall remain in effect until the expiry of a period
of 2 years from the date hereof
(c) This Clause 8.12 shall not apply to Disclosure by or on behalf of any
party to this Lease to any third parties and/or their professional
advisers in pursuance of rent review arbitrations or determinations or
negotiations or legal proceedings adjudications or other bona fide
negotiations (including financing) or dealings with and/or relating to
the Estate or any part of it including for the avoidance of doubt
disclosures by the Landlord to the mortgagee or prospective mortgagee
of the Estate or any part of it
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8.13 Waiver etc. of regulations
(a) The Landlord reserves the right to rescind alter or waive any of the
Regulations at any time where in its reasonable judgment it deems
necessary desirable or proper and no alteration or waiver in favour of
one tenant of the Estate shall operate as an alteration or waiver in
favour of any other tenant of the Estate
(b) Neither the Landlord nor the Management Company shall be responsible
to the Tenant for the non-observance by any tenant of the Estate or
any other person of any of the Regulations
8.14 Third Party Rights
Except as may be permitted under the law of England the parties to this
Lease do not intend that any of its terms shall be enforceable by any third
party and hereby negate any such effect
8.15 Applicable Law and Jurisdiction
This Lease shall be governed by and construed in all respects in accordance
with the Laws of England and proceedings in connection therewith shall be
subject (and the parties hereby submit) to the non-exclusive jurisdiction
of the English Courts and for the purposes of Rule 6.15 of Civil Procedure
Rule 1998 and any other relevant Rules thereof the Tenant hereby
irrevocably agrees that any process may be served upon it by leaving a copy
addressed to it at its address as stated above or at such other address for
service within England and Wales as may be notified in writing from time to
time to the Landlord and the Management Company
8.16 Representations
The Tenant acknowledges that this Lease has not been entered into in
reliance wholly or partly on any statement or representation made by or on
behalf of the Landlord except any such statement or representation that is
expressly set out in this Lease or in written reply to enquiries raised by
the Tenant's Solicitors of the Landlord's Solicitors
8.17 Provisions as to Entry
Where in this Lease except in case of emergency any provision for entry is
made subject to this clause:-
(a) No such rights shall be exercised without prior notice to the Tenant
and no such rights shall be exercised except in compliance with the
Tenant's reasonable security requirements
(b) No such rights shall be exercised if the Landlord can reasonably
achieve at no additional cost a like object by another means
(c) As little disruption as reasonably practicable shall be caused to the
Tenant's business
(d) Such rights shall be exercised only for the minimum time reasonably
necessary and with the Landlord making good all damage caused to the
Tenant's reasonably satisfaction
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9. SERVICE CHARGE
9.1 FOR the purpose of this Lease the following expressions shall have the
following meanings:-
(a) "Additional Building" means any building on the Estate (except for
those buildings built upon parcels B-1 B-2 B-3 B-4 (including the
extension known as B-4A) B-5 DS-6 DS-7 RT-1 RT-2 FC-1 FC-2 FC-3 FC-4
FC-5 FC-6 and 5 Chancellor Passage) and used or intended to be used
for Office Use Retail Use or Hotel Use where in respect of that
building either:-
(i) at least two (2) years shall have elapsed since the issue of a
practical completion certificate for that entire building under
the building contract relating thereto; or
(ii) at least 50% of the Net Internal Area of the Lettable Areas
therein has become occupied
(b) "Building Computing Date" means the first day of July in each year and
the anniversary of that date in each succeeding year or such other
date as the Management Company may from time to time nominate
(c) "Building Expenditure" means the aggregate of:-
(i) all costs fees expenses and outgoings whatsoever (whether or not
of a recurring nature) incurred in respect of or incidental to
the provision of all or any of:-
(1) the Building Services and
(2) the costs and expenses set out in Part B of the Seventh
Schedule
(whether or not the Landlord or the Management Company is
obliged by this Lease to incur the same) and (when any
expenditure is incurred in relation to the Building and other
premises) the proportion of such expenditure which is reasonably
attributable to the Building as determined from time to time by
the Building Surveyor
(ii) such sums as the Management Company shall consider desirable to
set aside from time to time (which setting aside shall be deemed
to be an item of expenditure actually incurred) for the purpose
of providing for periodically recurring items of expenditure,
whether or not of a capital nature and whether recurring at
regular or irregular intervals and for anticipated expenditure
in respect of any of the Building Services to be provided or
other items within Part B of the Seventh Schedule (the "Building
Reserve Fund")
(iii) the cost of replacement of any item where such replacement is
reasonably necessary whether or not the replacement item is of a
superior quality design or utility to the item being replaced
(iv) interest payments credited to the Tenant under Clause 9.5(b) and
credited or paid to any tenants of premises within the Building
under the provisions of clauses similar to the said Clause
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(v) any Value Added Tax or other tax payable on or in connection
with any such items in paragraphs (i) (ii) (iii) and (iv) above
(so far as not recoverable by the Management Company as an input
credit)
but shall exclude:-
(aa) any capital expenditure incurred in the initial construction of
the Building or for the purpose of the initial establishment of
the services described in the Seventh Schedule
(bb) any expenditure referable to operating charges and expenses and
maintenance of any Car Park
(cc) any expenditure arising out of damage or destruction caused by
any of the Insured Risks (subject to any applicable excess and
subject to the insurance not being refused in whole or in part
by any act or default of the Tenant any undertenant or occupier
of any part of the Demised Premises or any of their respective
agents licensees visitors or constructors or any person under
the control of any of them)
and there shall be deducted from the foregoing for the purposes of
calculating the Building Expenditure the following:-
(aaa) any contributions in respect of Building Services or the costs
set out in Part B of the Seventh Schedule recoverable in the
relevant Building Financial Year under leases or agreements for
leases relating to premises which for that Building Financial
Year are not included within the definition of Y for the
purposes of Clause 9.1(e)(i)
(bbb) any revenue received from a third party (other than a tenant in
its capacity as such) derived from the rendering of Building
Services or any activity the cost of which is included in Part B
of the Seventh Schedule and
(ccc) any contribution in respect of the rendering of any of the
Building Services or any activity the cost of which is included
in Part B of the Seventh Schedule recoverable in the Relevant
Financial Year where any such Building Services or other
activity was provided at the request of or for the benefit of
any tenants or occupiers of the Building and which would not
have been provided but for such request
(ddd) interest payments received from the Tenant under Clause 9.5(a)
and from other tenants within the Building under the provisions
of clauses similar to the said Clause in relation to Building
Expenditure
(eee) any contributions in respect of Building Services or the costs
set out in Part B of the Seventh Schedule recoverable or which
would ordinarily be expected (assuming a full service charge
recovery) to be recoverable in the relevant Building Financial
Year under leases or agreements for leases in favour of
retailers relating to premises which for that Building Financial
Year are not included within the definition of Y for the
purposes of Clause 9.1(e)(i)
(d) "Building Financial Year" means the period from a Building Computing
Date to but not including the next succeeding Building Computing Date
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(e) "Building Service Charge Percentage" means the percentage calculated
as follows:-
(i) A percentage of those items of Building Expenditure
attributable to the Building Services referred to in Part I
of Part A of the Seventh Schedule and to the costs and
expenses set out in Part I of Part B of the Seventh Schedule
calculated in accordance with the following formula:-
X x 100
-
Y
where:
X = the Net Internal Area of the Demised Premises and
Y = the aggregate Net Internal Areas of Lettable Areas
within the Building used or intended to be used for
office purposes or uses ancillary thereto
(ii) The proportion of each item of the Part II Expenditure
attributable to the Tenant and as properly and fairly
determined by the Management Company but expressed as a
percentage of the Part II Expenditure
(f) "Building Surveyor" means a chartered surveyor or firm of chartered
surveyors appointed or employed by the Management Company to perform
the functions of the Building Surveyor hereunder
(g) "Estate Computing Date" means the first day of July in each year and
the anniversary of that date in each succeeding year or such other
date as the Management Company may from time to time nominate
(h) "Estate Expenditure" shall have the same meaning as "Building
Expenditure" save for the following alterations:-
(i) in paragraph (i) where the words "Building and other
premises" appear the words "Estate and other premises" shall
be substituted therefor
(ii) in paragraph (aa) where the word "Building" appears the words
"any building or any erection within the Estate" shall be
substituted therefor
(iii) where the word "Building" appears elsewhere in the latter
definition the word "Estate" shall be substituted therefor
(iv) where reference is made to the Seventh Schedule reference
shall be deemed to be made to the Sixth Schedule
(v) there shall be incorporated as an additional sub-clause in
Clause 9.1(c)
"(eee) any contributions in respect of Estate Services or the
costs set out in Part B of the Sixth Schedule
recoverable in the relevant Estate Financial Year from
the tenants, occupiers or owners of premises within an
Additional Building where the Landlord has excluded
such
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Additional Building from the calculation of the
Estate Service Charge Percentage pursuant to
sub-clause 9.1(j)"
(i) "Estate Financial Year" means the period from an Estate Computing
Date to but not including the next succeeding Estate Computing Date
(j) "Estate Service Charge Percentage" means the percentage calculated
as follows:-
X x 100
-
Y
where:-
X = the Net Internal Area of the Demised Premises and
Y = the aggregate Net Internal Areas of the Lettable
Areas of the buildings built or intended to be
built and used or intended to be used for Retail
Use Hotel Use or Office Use (as hereinafter
defined) on those parts of the Estate known as
parcels B-1 B-2 B-3 B-4 (including the extension
known as B-4A) B-5 DS-6 DS-7 HQ-4 RT-1 RT-2 FC-1
FC-2 FC-3 FC-4 FC-5 FC-6 and 5 Chancellor Passage
PROVIDED THAT as from each Estate Computing Date during the Term Y
shall (in addition to the buildings referred to in the above
definition) include the Net Internal Area of the Lettable Areas
within an Additional Building where in respect of that building at
that Estate Computing Date either:-
(i) at least two (2) years shall have elapsed since the issue of
a practical completion certificate for that entire building
under the building contract relating thereto or
(ii) at least 50% of the Net Internal Area of the Lettable Areas
therein has become occupied
PROVIDED FURTHER THAT the Landlord may exclude an Additional
Building from Y subject to the Landlord deducting contributions
recoverable from the tenants occupiers and owners of the Additional
Building in respect of Estate Services from Estate Expenditure
pursuant to sub-clause 9.1(l)(v)
(k) "Estate Surveyor" has the like meaning as "Building Surveyor" save
that the word "Building" in the latter definition shall be deleted
and the word "Estate" substituted therefor
(l) "Estimated Building Expenditure" means for any Building Financial
Year such sum as the Management Company shall notify in writing to
the Tenant as a reasonable estimate of the Building Expenditure
referred to in Part I of Parts A and B of the Seventh Schedule and
(b) the Estimated Part II Expenditure in both cases for such
Building Financial Year after deducting any anticipated Building
Appropriation (as defined in Clause 9.3(a)) provided that the
Management Company may from time to time during any such Building
Financial Year notify the Tenant in writing of a revised figure for
the Estimated Building Expenditure
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(m) "Estimated Estate Expenditure" shall have the like meaning as
"Estimated Building Expenditure" save that
(i) the word "Building" where it appears in the latter definition
shall be deleted and the word "Estate" substituted therefor;
and
(ii) references to the "Sixth Schedule" where they appear in the
latter definition shall be deleted and references to the
"Seventh Schedule" substituted therefor
(n) "Estimated Part II Expenditure" means the estimated Building
Expenditure attributable to the Building Services referred to in
Part II of Part A of the Seventh Schedule and to the costs and
expenses set out in Part II of Part B of the Seventh Schedule
(o) "Hotel Use" means use as a hotel including uses within hotels of
banqueting rooms conference facilities and areas used for Retail Use
within hotels
(p) "Office Use" means use as an office and includes banking halls and
trading floors
(q) "Part II Expenditure" means the Building Expenditure attributable to
the Building Services referred to in Part II of Part A of the
Seventh Schedule and to the costs and expenses set out in Part II of
Part B of the Seventh Schedule
(r) "Relevant Advance Payment" shall mean (as the case may require) the
aggregate of all Estate Payments on Account made in any Estate
Financial Year or the aggregate of all Building Payments on Account
made in any Building Financial Year
(s) "Relevant Estimated Expenditure" means all or any of the Estimated
Estate Expenditure and the Estimated Building Expenditure as the
case may require
(t) "Relevant Expenditure" means the Estate Expenditure or the Building
Expenditure as the case may require
(u) "Relevant Financial Year" means the Estate Financial Year or the
Building Financial Year as the case may require
(v) "Relevant Service Charge Percentage" means:
(1) in the case of the Building Expenditure (and the Estimated
Building Expenditure) each or either of the Building Service
Charge Percentages as the context shall allow and
(2) in the case of the Estate Expenditure (and the Estimated
Estate Expenditure) the Estate Service Charge Percentage
(w) "Relevant Surveyor" means the Estate Surveyor or the Building
Surveyor as the case may require
(x) "Retail Use" means use for:-
(1) all types of retailing including hairdressers snackbars
travel agents funeral directors and showrooms
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(2) banks building societies estate agents betting offices and
similar uses where the services are provided principally
to visiting members of the public
(3) restaurants cafes public houses winebars and food take
aways
9.2 (a) The Tenant covenants with the Landlord and as a separate covenant
with the Management Company to pay to the Management Company:-
(1) the Relevant Service Charge Percentage (as indicated in
the last available Certificate by the Relevant Surveyor
issued pursuant to Clause 9.3 but subject to the
provisions of Clause 9.4) of each of the Relevant
Estimated Expenditure in advance by equal quarterly
instalments on the Quarterly Days during each Relevant
Financial Year the first payment of each being a
proportionate sum in respect of the period from and
including 31 May 2002 to the next Quarterly Day to be made
on the date hereof and
(2) (if any of the Relevant Estimated Expenditure is revised
as contemplated above) within 14 days after written demand
the Relevant Service Charge Percentage of the amount by
which any such revised figure for the Relevant Estimated
Expenditure exceeds the figure previously notified to the
Tenant
(b) Each such payment made by the Tenant under Clause 9.2(a) is
referred to in this Lease as (in the case of the Estimated Estate
Expenditure) an "Estate Payment on Account" and (in the case of
the Estimated Building Expenditure) a "Building Payment on
Account"
9.3 The Management Company shall, as soon as reasonably practicable after
the end of each Relevant Financial Year, prepare and send to the
Tenant:-
(a) an account or accounts, each duly certified by the Accountant,
showing the Estate Expenditure and the Building Expenditure for
each Relevant Financial Year and the amount (if any) which the
Management Company has chosen to utilise from the Estate Reserve
Fund or the Building Reserve Fund as the case may be in defraying
respectively Estate Expenditure or Building Expenditure pursuant
to Clause 9.7 (respectively "the Estate Appropriation" and "the
Building Appropriation") and containing a fair summary of the
various items comprising the Relevant Expenditure
(b) a certificate or certificates by the Relevant Surveyor showing
the Relevant Surveyor's calculation of each Relevant Service
Charge Percentage for each Relevant Financial Year
(c) a statement or statements of each Relevant Service Charge
Percentage of each Relevant Expenditure for each Relevant
Financial Year after taking into account as the case may require
the Estate Appropriation or the Building Appropriation and the
same shall (save for obvious error) be conclusive evidence for
the purposes of this Lease of all matters of fact referred to in
each said account certificate and statement
9.4
9.4.1 For the purposes of Clause 9.2 hereof until such time as a Certificate
is issued by the Relevant Surveyor pursuant to Clause 9.3 hereof the
Estate Service Charge Percentage shall be 0.9434% the Building Service
Charge Percentage referred to in Clause 9.1(e)(i) shall be 26.6310% and
the Building Service Charge Percentage referred to in Clause 9.1(e)(ii)
shall
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be the proportion of each item of the Estimated Part II Expenditure
properly and fairly estimated by the Management Company as likely to be
attributable to the Tenant but expressed as a percentage of the
Estimated Part II Expenditure
9.4.2 For the purposes of Clause 9.2 after such time as a Certificate is
issued by the Relevant Surveyor pursuant to Clause 9.3 hereof the
Estate Service Charge Percentage and the Building Service Charge
Percentage referred to in Clause 9.1(e)(i) shall be as indicated in the
last available Certificate issued by the Relevant Surveyor pursuant to
Clause 9.3 hereof and the Building Service Charge Percentage referred
to in Clause 9.1(e)(ii) shall be the proportion of each item of the
Estimated Part II Expenditure properly and fairly estimated by the
Management Company as likely to be attributable to the Tenant but
expressed as a percentage of the Estimated Part II Expenditure
9.5 (a) If the Relevant Service Charge Percentage of the Relevant
Expenditure for any Relevant Financial Year (after taking into
account as the case may require the Estate Appropriation or the
Building Appropriation) shall exceed the Relevant Advance
Payment for that Relevant Financial Year the excess together
with interest thereon at the Base Rate calculated from and
including as the case may require the Estate Computing Date or
the Building Computing Date next following the end of that
Relevant Financial Year until the date of payment shall be paid
by the Tenant to the Management Company on demand or
(b) If the Relevant Service Charge Percentage of the Relevant
Expenditure for any Relevant Financial Year (after taking into
account as the case may require the Estate Appropriation or the
Building Appropriation) shall be less than the Relevant Advance
Payment for that Relevant Financial Year the overpayment made by
the Tenant together in each case with interest thereon at the
Base Rate calculated as aforesaid up to the date when the next
Relevant Advance Payment on Account is due shall be credited to
the Tenant against the next Estate Payment on Account or
Building Payment on Account as the case may require
9.6 Any omission by the Management Company to include in Relevant
Expenditure in any Relevant Financial Year a sum expended in that
Relevant Financial Year shall not preclude the Management Company from
including such sum in Relevant Expenditure in any subsequent Relevant
Financial Year as the Management Company shall reasonably determine
9.7 (a) Each of the Estate Reserve Fund and the Building Reserve Fund
shall be held upon trust during the period of eighty (80) years
from the date of this Lease (which shall be the perpetuity
period applicable hereto) respectively for the persons who from
time to time shall be tenants or occupiers of the Estate or the
Building and each shall be held in a separately designated
interest bearing bank account and the Management Company shall
utilise the same, with interest accruing thereon but after
deducting tax payable thereon and on such interest in defraying
expenditure of the nature referred to in Clause 9.1(c)(ii) (in
the case of the Building Reserve Fund) and in the corresponding
paragraph of the definition of Estate Expenditure (in the case
of the Estate Reserve Fund) and at the expiry of such perpetuity
period the sums standing to the credit of each of the Estate
Reserve Fund and the Building Reserve Fund and unexpended shall
be paid respectively to the persons who shall then be the
tenants of the Estate or the Building in shares equal to their
respective Relevant Service Charge Percentages the Management
Company being entitled absolutely to any share payable in
respect of any Lettable Area which is unlet at such time
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(b) The Management Company shall procure that upon the service by the
Landlord of notice under Clause 8.6 (insofar as the same shall relate
to the Estate Services) the Estate Reserve Fund and (insofar as the
same shall relate to the Building Services) the Building Reserve Fund
(or in each case so much thereof as remains after the defraying of such
expenditure as aforesaid) shall be transferred to the Landlord or any
other company nominated by the Landlord in such notice to be held upon
the relevant trusts referred to in Clause 9.7(a) and upon the terms
therein mentioned
9.8 If at any time or times during the Term the Management Company reasonably
considers that circumstances have arisen making the Relevant Service Charge
Percentage or the formula for calculating the same on the basis specified
in Clause 9.1 unreasonable or inequitable the Management Company may in its
absolute discretion give written notice to the Tenant requiring a variation
to the Relevant Service Charge Percentage of the said formula which is fair
and reasonable in all the circumstances and in the event of there being any
dispute regarding such variation the matter shall be referred to a single
arbitrator to be appointed in default of agreement upon the application of
the Management Company or the Tenant by or on behalf of the President for
the time being of the Royal Institution of Chartered Surveyors in
accordance with the provisions of the Arbitration Acts 1996
9.9 The Management Company may in its absolute discretion discontinue withhold
add to commence extend vary or make any alterations to any of the Estate
Services or the Building Services or any of the items referred to in Part B
of the Sixth and Seventh Schedules hereto from time to time if the
Management Company shall reasonably deem it desirable to do so in the
interests of (or for the comfort of) the owners and tenants on or for the
efficient management security and operation of the Estate or the Building
(as the case may be) or for any other reason in the interests of good
estate management
9.10 The Tenant covenants with the Landlord and as a separate covenant with the
Management Company that the Tenant will pay on demand such charge as may
reasonably be determined by the Management Company in respect of any
service (whether or not constituting an Estate Service or a Building
Service) provided at the request of the Tenant to or for the benefit of the
Tenant (whether or not exclusively) at a time or in circumstances when or
in which such service would not have been provided but for such request
9.11 The provisions of this Clause shall continue to apply notwithstanding the
expiration or sooner determination of the Term but only in respect of the
period down to such expiration or sooner determination the Relevant Service
Charge Percentage of the Relevant Expenditure payable for that Relevant
Financial Year being apportioned for the said period on a daily basis
10. NEW TENANCY
This Lease constitutes a new tenancy for the purposes of the Landlord and
Tenant (Covenants) Act 1995
IN WITNESS whereof this Lease has been executed by the parties as a Deed and
delivered on the day and year first above written
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FIRST SCHEDULE
Rights Granted
1. Estate Common Parts
The right for the Tenant and all persons authorised by the Tenant (in
common with the Landlord and the Management Company and all other persons
having a like right) at all times and for all proper purposes:-
(a) to pass and repass with or without vehicles over and along all roads
accesses and egresses from time to time comprised in the Estate Common
Parts and intended for vehicular access leading to and from the Demised
Premises and the car parking area referred to in paragraph 6 below and
the public highway
(b) to pass and repass on foot only over and along such areas as are
comprised in the Estate Common Parts and intended for pedestrian access
leading to and from the Demised Premises and the car parking area
referred to in paragraph 6 below and the public highway
(c) to use such parts of the Estate Common Parts as are not referred to in
sub-paragraphs (a) and (b) above
until such time (if any) as any of the same are adopted by the highway or
other relevant authority
Provided that the Landlord may add to extend vary or stop-up any of the
same from time to time so long only as (i) in the case of sub-paragraphs
(a) and (b) above alternative means of access and egress to the Demised
Premises are available ensuring the continuance of access to and use and
occupation of the Demised Premises and (ii) in the case of sub-paragraph
(c) above so that the Tenant's use and occupation of the Demised Premises
is not thereby materially and adversely affected and (iii) in all cases the
facilities provided comply with all statutory and regulatory requirements
and (iv) in all cases the facilities provided shall be as necessary for the
use and enjoyment of the Demised Premises for all proper purposes
2. Pipes
The right to the free passage and running of water sewage surface water
drainage gas electricity telecommunications and other services or supplies
to and from the Demised Premises (subject to the Tenant not overloading or
damaging the same) in and through the Pipes in the Building or any
Adjoining Property serving the Demised Premises in common with the Landlord
and all other persons having the like right PROVIDED ALWAYS that the
Landlord may vary the route or alter all or any such services or supplies
from time to time and the rights hereby granted shall thereupon apply to
such services and supplies as varied or altered subject to the Landlord
using its reasonable endeavours to minimise any disruption caused thereby
and to ensure that so far as shall be reasonably possible no interruption
in such services or supplies shall result
3. Common Parts of the Building
(Subject to observance by the Tenant of its obligations contained in Clause
4.34 the right for the Tenant and all persons authorised by the Tenant (in
common with the Landlord and the Management Company and all persons having
a like right):-
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(a) to use for pedestrian access and egress such of the Common Parts of the
Building as shall be necessary for the use and enjoyment of the Demised
Premises for all proper purposes and
(b) to use such of the passenger lifts in the Building as shall from time
to time be designated for the Tenant's use for the purpose only of
obtaining access to and egress from the Demised Premises and
(c) to use such of the lavatories in the Building as shall from time to
time be designated for the Tenant's use
(d) to use any delivery area loading bay and goods lifts designated from
time to time for the Tenant's use for the purpose only of vehicular
access and egress for delivery in and out and loading and unloading of
goods and equipment and not for any other purposes
4. Entry to other parts of the Building
The right (subject to the provisions of Clauses 4.19 and 4.20) for the
Tenant and all other persons authorised by the Tenant in common with the
Landlord and the Management Company and all others having the like rights
and easements at all reasonable times to enter all necessary other parts of
the Building in order to carry out works of repair or alteration to the
Demised Premises or the Pipes serving the same on the following
conditions:-
(a) the Tenant shall except in case of emergency give reasonable prior
written notice to the Landlord and the occupiers (if any) of such parts
of its intention to exercise such rights
(b) the Tenant shall only exercise such rights insofar as it cannot
reasonably carry out such works of repair and alteration from within
the Demised Premises and
(c) the Tenant shall cause as little inconvenience and damage as reasonably
possible and shall without delay make good to the reasonable
satisfaction of the Landlord and the occupiers of such adjoining
premises all damage thereby occasioned to such parts
5. Support
The right of support protection and shelter for the benefit of the Demised
Premises from any other part of the Building as now enjoyed
6. Car Parking
Subject to observance by the Tenant of its obligations contained in Clause
4.34 the right for the Tenant and all persons authorised by the Tenant at
all times to use sixteen (16) spaces within the car parking area comprised
within the Building to park motor vehicles and provided that the Landlord
may from time to time designate appropriate car parking spaces and subject
further to the Tenant with the prior written consent of the Landlord (such
consent not to be unreasonably withheld or delayed) to use such designated
spaces for any uses ancillary to the Permitted Use of the Demised Premises
provided that the Tenant shall at all times comply with all statutory
requirements relating to such spaces and such use
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7. Bicycles and Motorcycles
The right for the Tenant (in common with all other persons having the like
right) and all persons authorised by the Tenant at all times to park
bicycles and motorcycles within any area reasonably designated by the
Landlord within the car parking area within the Building for such use
PROVIDED ALWAYS that the Landlord shall provide an area to park bicycles
and motorcycles
8. List of tenant's names
The right for the Tenant and any lawful occupiers of the Demised Premises
to have their respective names and the premises occupied by them displayed
in such manner and in such location as the Landlord shall from time to time
reasonably prescribe in the main entrance hall of the Building
9. Reception Area
The right for so long as the Tenant occupies floors 5-11 (inclusive) in the
Building for the Tenant at its own cost and subject to compliance with all
statutory requirements to install and use a reception desk with appropriate
staff and reception facilities (all at the Tenant's cost) in the ground
floor lobby of the Building subject to the prior written approval of the
Landlord (such approval shall not to be unreasonably withheld)
10. Affixing of items to the structure of the Building
The right (subject to the provisions of Clauses 4.19 and 4.20) for the
Tenant and all persons authorised by the Tenant to affix to the interior
surfaces of the walls columns or structural slabs enclosing the Demised
Premises in such manner as will not impair the structural integrity of such
walls columns or slabs
11. Mechanical Space
The right for the Tenant its lawful undertenants and those authorised by it
to use the Mechanical Space Area solely for the installation use and
maintenance of such mechanical electrical and other systems (including
Telecommunications Equipment) as the Tenant may require together with all
necessary rights of access to such area through such parts of the remainder
of the Building as the Landlord may reasonably specify
12. Telecommunications Equipment
12.1 Subject to:-
(a) the Tenant first having supplied the Landlord eith details obtained the
Landlord's written approval (such approval not to be unreasonably
withheld) as to:-
(i) the weight height dimensions and all other specifications of any
proposed satellite dishes or other telecommunications equipment
ancillary to the Tenant's permitted use of the Demised Premises
("Telecommunications Equipment") and
(ii) the method and works of installation of the proposed
Telecommunications Equipment and
-46-
(b) the Tenant first at its sole cost and expense having obtained (where
necessary) planning permission and/or the consent of any competent
authority and production of copies thereof to the Landlord
(c) the Tenant having entered into a licence to carry out alterations in
the form of the licence to carry out alterations in relation to the
installation of Telecommunications Equipment of even date herewith in
relation to any Telecommunications Equipment not comprised within such
licence of even date herewith
the right to install in accordance with the method of installation,
arrangements for the supply of power and location of all cables and ducts
associated therewith having been previously approved by the Landlord (such
approval not to be unreasonably withheld) on such area on the roof of the
Building as is shown for identification purposes only hatched and edged
green on Plan 9 (the "Approved Location") the Telecommunications Equipment
of the weight height dimension and specification previously approved by the
Landlord in accordance with the above provisions and to run cables through
existing ducts from the Telecommunications Equipment to the Demised
Premises and to the passage of electricity through such cables Provided
Always That:-
(a) no satellite dish shall exceed 1.8 metres in diameter
(b) the Landlord may at any time by not less than 3 months' written notice
require the removal of one or more (if applicable) of the satellite
dishes or other equipment from the Approved Location to another
location (the "Alternative Location") from which the reception by the
satellite dish or other equipment when located would not be likely to
be materially diminished from the reception at the Approved Location
and in the event of service of such notice the Tenant shall forthwith
supply to the Landlord full details of its relocation works for
approval (such approval not to be unreasonably withheld) and following
the grant of such approval shall at the Landlord's cost relocate the
satellite dish or other equipment and the cables and all related
equipment to the Alternative Location and shall at the Landlord's cost
make good any damage or disturbance to the Approved Location
(c) such works of installation and works of removal shall be carried out
expeditiously and in a good and workmanlike manner causing the minimum
of disturbance and inconvenience to the occupants and owners for the
time being of the Approved Location and the Alternative Location (as
the case may be)
(d) at the discretion of the Landlord the Landlord shall be entitled to
carry out the installation works in place of the Tenant and the Tenant
shall reimburse the Landlord for the reasonable cost of carrying out
the installation works within 10 days of written demand by the Landlord
(e) at the discretion of the Landlord the Landlord shall be entitled at its
own expense to carry out the removal works in place of the Tenant but
if the Tenant shall carry out the removal works the Landlord shall
reimburse the Tenant for the reasonable costs incurred by the Tenant in
carrying out the removal works within 10 days of written demand by the
Tenant
12.2 In exercising the right the Tenant shall cause as little inconvenience as
possible to the Landlord or its tenants as reasonably practicable and shall
make good without delay any damage thereby caused to the Approved Location
or the Building upon which the location is situate (the "Location
Building") in the exercise of such rights and shall use all reasonable
-47-
endeavours to ensure that the use of the satellite dish causes no material
interference with the electrical equipment in the Location Building
13. Naming of the Building
The right for so long as the Tenant occupies floors 3-11 (inclusive) in the
Building to name the Building
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SECOND SCHEDULE
Exceptions and Reservations
The following rights and easements are excepted and reserved out of the Demised
Premises to the Landlord and the Superior Landlord and all other persons
authorised by either of them or having the like rights and easements subject to
the provisions of Clause 8.18:-
1. Pipes
The right to the free passage and running of water sewage surface water
drainage gas electricity telecommunications and other services or supplies
to and from the Building or any Adjoining Property in and through any of
the Pipes which may at any time be in under or passing through or over the
Demised Premises
2. Entry
The right at all reasonable times upon reasonable prior notice subject to
the provisions of Clause 8.18 except in cases of emergency to enter the
Demised Premises in order to:-
(a) inspect cleanse maintain repair connect to remove lay renew relay
replace alter or execute any works to or in connection with the Pipes
and any other services in or accessible from the Demised Premises
(b) execute repairs decorations alterations and any other works to the
Building or any Adjoining Property or to do anything which the
Landlord or the Management Company may do under this Lease
(c) carry out the Estate Services and to carry out the Building Services
PROVIDED THAT the person exercising the foregoing rights shall cause as
little inconvenience or damage as reasonably possible and shall make good
without delay any damage thereby caused to the Demised Premises
3. Scaffolding
The right to erect scaffolding for the purposes of repairing or cleaning
the Building and any buildings now or hereafter erected on the Estate or in
connection with the exercise of any of the rights mentioned in this
Schedule notwithstanding that such scaffolding may temporarily restrict the
access to or enjoyment and use of the Demised Premises
4. Light and air etc.
Without prejudice to Clause 6.8 of this Lease the rights of light air and
all other easements and rights now or hereafter enjoyed by other parts of
the Building or the Adjoining Property
5. Support
The right of support protection and shelter now or hereafter for the
benefit of other parts of the Building from the Demised Premises
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6. Building on the Adjoining Property
Without prejudice to Clause 6.8 of this Lease the right at any time to
build on or execute any works to the Building or any Adjoining Property or
any buildings thereon in such manner as the person exercising the right
shall think fit notwithstanding the fact that the same may obstruct affect
or interfere with the amenity of the Demised Premises or the passage of
light and air to the Demised Premises and subject in any event to the
Tenant's ability or right to object to the local planning authority in
respect of such works
7. Alteration of Common Parts
Without prejudice to Clause 6.8 of this Lease the right to extend vary or
stop-up the Estate Common Parts or the Common Parts of the Building or any
part or parts thereof from time to time if the Landlord shall reasonably
deem it desirable for the efficient management security and operation of
the Estate or the Building or for the comfort of the owners and tenants on
the Estate (but not so that the Tenant's use and occupation of the Demised
Premises for the Permitted Use in accordance with all statutory and
regulatory requirements is thereby materially and adversely affected)
8. Use of Estate Common Parts and Common Parts of the Building
Without prejudice to Clause 6.8 of this Lease the right to regulate and
control the use of the Estate Common Parts and the Common Parts of the
Building and to make Regulations for that purpose (but not so that the
Tenant's use and occupation of the Demised Premises for the Permitted Use
in accordance with all statutory and regulatory requirements is thereby
materially and adversely affected)
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THIRD SCHEDULE
Rent Reviews
1. Definitions
In this Schedule the following expressions shall have the following
meanings:-
1.1 "Review Date" means each of the Review Dates specified in the Particulars
and "Relevant Review Date" shall be construed accordingly
1.2 "Assumed Premises" means the Demised Premises on the assumption that:-
(a) the Tenant's Works have not been carried out and (for the avoidance of
doubt) the Tenant has removed all tenant's fixtures and all
improvements and alterations carried out by the Tenant otherwise than
pursuant to an obligation to the Landlord (reinstating and making good
any damage caused to the Demised Premises in so doing) and has left
the Demised Premises (constructed and fitted out as aforesaid) as
clear space and
(b) the Demised Premises have been constructed and fitted out by the
Landlord at its own cost immediately prior to the grant of this Lease
and in accordance with the specification and drawings annexed hereto
entitled "Rent Review Specification" read on the basis that where
reference is made to a minimum standard that is the actual standard
provided and in accordance with the specification annexed hereto
entitled "Minimum Standard Developer's Finish for Tenant's Work" and
as altered from time to time by alterations carried out by and at the
expense of the Landlord and improvements and alterations carried out
by the Tenant pursuant to an obligation to the Landlord
1.3 "Open Market Rent" means (subject to paragraph 4 below) the clear yearly
rack rent at which the Assumed Premises could reasonably be expected to be
let as a whole on the open market at the Relevant Review Date by a willing
landlord to a willing tenant with vacant possession and without any premium
or any consideration other than rent for the grant thereof for a term of
ten (10) years commencing on the Relevant Review Date and otherwise on the
terms and conditions and subject to the covenants and provisions contained
in this Lease other than the amount of the Rent payable hereunder and
subject to the provisions for the review of the Rent contained in this
Schedule and making the Assumptions but disregarding the Disregarded
Matters
1.4 the "Assumptions" means the following assumptions (if not facts) at the
Relevant Review Date:-
(a) that the Assumed Premises are fit for immediate occupation and use and
have been fully fitted out and equipped at the Landlord's expense to
the specification described in paragraph 1.2(b) of this Schedule; and
(b) that there shall be no discount reduction or allowance to reflect (or
compensate any incoming tenant for the absence of) any rent free or
concessionary rent period which reflects the time it would take for
the incoming tenant to fit out the Assumed Premises so as to be ready
for immediate use or any capital payment or other consideration in
lieu thereof and which would be granted to the willing tenant in the
open market at the relevant Review Date so that such Open Market Rent
shall be that which would be payable after the expiry of any such rent
free or concessionary rent
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period which the willing tenant shall hereby be assumed to have
enjoyed or after receipt by the willing tenant of any such capital
payment or other consideration in lieu thereof; and
(c) that no work has been carried out to the Demised Premises by the
Tenant any undertenant or their respective predecessors in title
during the Term which has diminished the rental value of the Demised
Premises; and
(d) that if the Demised Premises or the Building have been destroyed or
damaged they have been fully rebuilt and reinstated; and
(e) that the Assumed Premises comply with all statutory and regulatory
requirements as at the date of grant of this Lease; and
(f) that all the covenants contained in this Lease on the part of the
Tenant have been fully performed and observed and that all the
covenants contained in this Lease on the part of the Landlord have
been fully performed and observed except when the Landlord is and
remains in material breach of covenant having had notice of and a
reasonable period of time to remedy such breach
1.5 the "Disregarded Matters" means:-
(a) any effect on rent of the fact that the Tenant or any Group Company of
the Tenant or any undertenant or their respective predecessors in
title have been in occupation of the Demised Premises or any part
thereof or any part of the Building; and
(b) any goodwill attached to the Demised Premises by reason of the
business then carried on at the Demised Premises by the Tenant or any
undertenant or their respective predecessors in title
(c) any voluntary improvements carried out to the Demised Premises by the
Tenant any undertenant or their respective predecessors in title
1.6 "Surveyor" means an independent chartered surveyor of not less than ten
(10) years' standing who is a fellow of the Royal Institution of Chartered
Surveyors and who is experienced in the letting or valuation of buildings
similar to the Assumed Premises in the City of London and London Docklands
and who is also aware of rental values elsewhere in London appointed from
time to time to determine the Open Market Rent pursuant to the provisions
of this Schedule and the Surveyor shall act as an arbitrator in accordance
with the Arbitration Act 1996
1.7 the "President" means the President for the time being of the Royal
Institution of Chartered Surveyors and includes the duly appointed deputy
of the President or any person authorised by the President to make
appointments on his behalf
1.8 "Rent Restrictions" means the restrictions imposed by any statute for the
control of rent in force on a Review Date or on the date on which any
increased rent is ascertained in accordance with this Schedule and which
operate to impose any limitation whether in time or amounts on the
assessment or the collection of any increase in rent or any part thereof
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2. The Rent
From and including each Review Date the Rent shall be equal to the Open
Market Rent at the Relevant Review Date as ascertained in accordance with
the provisions of paragraph 3 below or as determined under the provisions
of paragraph 4 below(as the case may be)
3. Agreement or determination of the Open Market Rent
The Open Market Rent at any Review Date may be agreed in writing at any
time between the Landlord and the Tenant but if for any reason the Landlord
and the Tenant have not so agreed then from a date two (2) months prior to
the Review Date up to the next succeeding Review Date either the Landlord
or the Tenant may by notice in writing to the other require the Open Market
Rent to be determined by the Surveyor
4. Deemed Open Market Rent
(a) If the Open Market Rent at the first Review Date (as such Open Market
Rent is ascertained pursuant to paragraph 3 above of this Schedule) is
less than the Initial Rent or if the Open Market Rent at that Review
Date cannot for any reason be ascertained pursuant to paragraph 3
above then for the purposes of this Schedule the Open Market Rent at
such Review Date shall be deemed to be the Initial Rent
(b) If the Open Market Rent at any subsequent Review Date (as so
ascertained) is less than the Open Market Rent payable immediately
preceding the Relevant Review Date as so ascertained above or
determined or if the Open Market Rent at the Relevant Review Date
cannot for any reason be so ascertained then for the purposes of this
Schedule the Open Market Rent at the Relevant Review Date shall be
deemed to be the Open Market Rent payable immediately preceding the
Relevant Review Date as so ascertained or determined
5. Appointment of Surveyor
(a) The Surveyor (in default of agreement between the Landlord and the
Tenant) shall be appointed by the President on the written application
of either the Landlord or the Tenant
(b) The Surveyor appointed under this paragraph shall act as an Arbitrator
and the following provisions shall apply:
(i) the date of the Arbitrator's award shall be deemed to be the
date on which a copy of the award is served on the Landlord and
the Tenant;
(ii) the Arbitrator shall not be entitled to order the rectification,
setting aside or cancellation of this Lease or any other deed;
(iii) the Arbitrator shall have the power to order a provisional
award;
(iv) the Arbitrator shall not be entitled to require that security is
provided in respect of the costs of the arbitration;
(v) the Arbitrator shall not be entitled to make an award prior to
the Relevant Rent Review Date
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6. Fees of Surveyor
The fees and expenses of the Surveyor including the cost of his nomination
shall be payable by the Landlord and the Tenant in such proportions as the
Surveyor shall, at his discretion, direct
7. Appointment of new surveyor
If the Surveyor dies is unwilling to act or becomes incapable of acting or
if for any other reason he is unable to act then either the Landlord or the
Tenant may request the President to discharge the said surveyor and appoint
another surveyor in his place which procedure may be repeated as many times
as necessary
8. Interim payments pending determination
(a) In the event that by the Relevant Review Date the Rent has not been
agreed or determined as aforesaid (the date of agreement or
determination being herein called "the Determination Date") then in
respect of the period (herein called "the Interim Period") beginning
with the Relevant Review Date and ending on the day before the
Quarterly Day following the Determination Date the Tenant shall pay to
the Landlord Rent at the yearly rate payable immediately before the
Relevant Review Date
(b) Forthwith following the Determination Date the Tenant shall pay to the
Landlord the amount (if any) by which the Rent paid on account by the
Tenant under the provisions of paragraph 8(a) above in respect of the
Interim Period falls short of the aggregate of Rent payable in respect
of the Interim Period together with interest on each of the
instalments of such shortfall at the Base Rate from the date of each
relevant under payment to the date of payment
9. Rent Restrictions
On each occasion that Rent Restrictions shall prevent or prohibit either
wholly or partially:-
(a) the operation of the above provisions for review of the Rent or
(b) the normal collection and retention by the Landlord of any increase in
the Rent or any instalment or part thereof
THEN in each such case:-
(i) the operation of such provisions for review of the Rent shall be
postponed to take effect on the first date or dates thereafter
upon which such operation may occur Provided that such operation
shall not take place more frequently than would be the case in
the absence of any Rent Restrictions throughout the Term of this
Lease
(ii) the collection of any increase or increases in the Rent shall be
postponed to take effect on the first date or dates thereafter
that such increase or increases may be collected and/or retained
in whole or in part and on as many occasions as shall be
required to ensure the collection of the whole increase
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AND until the Rent Restrictions shall be relaxed either partially or
wholly the Rent shall be the maximum sum from time to time permitted
by the Rent Restrictions
10. Memoranda of reviewed rent
As soon as the amount of any reviewed Rent has been agreed or determined
memoranda thereof shall be prepared by the Landlord or its solicitors and
thereupon shall be signed by or on behalf of the Landlord and the Tenant
and annexed to this Lease and the counterpart thereof and the parties shall
bear their own costs in respect thereof
11. Time not of the essence
For the purpose of this Schedule time shall not be of the essence
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FOURTH SCHEDULE
Covenants by the Surety
1. Indemnity by Surety
The Surety hereby covenants with the Landlord and as a separate covenant
with the Management Company as a primary obligation that the Tenant or the
Surety shall at all times until the Tenant shall cease to be bound by the
Tenant's covenants in the Lease during the Term duly perform and observe
all the covenants on the part of the Tenant contained in this Lease
including the payment of the rents hereby reserved and all other sums
payable under this Lease in the manner and at the times herein specified
and the Surety shall indemnify and keep indemnified the Landlord and the
Management Company against all claims demands losses damages liability
costs fees and expenses whatsoever sustained by the Landlord or the
Management Company by reason of or arising directly or indirectly out of
any default by the Tenant in the performance and observance of any of its
obligations or the payment of any rents and other sums
2. Surety jointly and severally liable with Tenant
The Surety hereby further covenants with the Landlord and as a separate
covenant with the Management Company that the Surety is jointly and
severally liable with the Tenant (whether before or after any disclaimer by
a liquidator or trustee in bankruptcy) for the fulfilment of all the
obligations of the Tenant under this Lease and agrees that the Landlord or
the Management Company in the enforcement of its rights hereunder may
proceed against the Surety as if the Surety was named as the Tenant in this
Lease
3. Waiver by Surety
The Surety hereby waives any right to require the Landlord or the
Management Company to proceed against the Tenant or to pursue any other
remedy whatsoever which may be available to the Landlord or the Management
Company before proceeding against the Surety
4. Postponement of claims by Surety against Tenant
The Surety hereby further covenants with the Landlord and as a separate
covenant with the Management Company that the Surety shall not claim in any
liquidation bankruptcy composition or arrangement of the Tenant in
competition with the Landlord or the Management Company and shall remit to
the Landlord the proceeds of all judgments and all distributions it may
receive from any liquidator trustee in bankruptcy or supervisor of the
Tenant and shall hold for the benefit of the Landlord and the Management
Company all security and rights the Surety may have over assets of the
Tenant whilst any liabilities of the Tenant or the Surety to the Landlord
or the Management Company remain outstanding
5. Postponement of participation by Surety in security
The Surety shall not be entitled to participate in any security held by the
Landlord or the Management Company in respect of the Tenant's obligations
to the Landlord or the Management Company under this Lease or to stand in
the place of the Landlord or the Management Company in respect of any such
security until all the obligations of the Tenant or the Surety to the
Landlord and the Management Company under this Lease have been performed or
discharged
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6. No release of Surety
None of the following or any combination thereof shall release discharge or
in any way lessen or affect the liability of the Surety under this Lease:-
(a) any neglect delay or forbearance of the Landlord or the Management
Company in endeavouring to obtain payment of the rents or other
amounts required to be paid by the Tenant or in enforcing the
performance or observance of any of the obligations of the Tenant
under this Lease
(b) any refusal by the Landlord or the Management Company to accept rent
tendered by or on behalf of the Tenant at a time when the Landlord was
entitled (or would after the service of a notice under Section 146 of
the Law of Property Act 1925 have been entitled) to re-enter the
Demised Premises
(c) any extension of time given by the Landlord or the Management Company
to the Tenant
(d) (subject to Section 18 of the Landlord and Tenant (Covenants) Act
1995) any variation of the terms of this Lease (including any reviews
of the rent payable under this Lease) or the transfer of the
Landlord's reversion or the assignment of this Lease
(e) any change in the identity constitution structure or powers of any of
the Tenant the Surety the Landlord or the Management Company or the
liquidation administration or bankruptcy (as the case may be) of
either the Tenant or the Surety
(f) any legal limitation or any immunity disability or incapacity of the
Tenant (whether or not known to the Landlord or the Management
Company) or the fact that any dealings with the Landlord or the
Management Company by the Tenant may be outside or in excess of the
powers of the Tenant
(g) any other act omission matter or thing whatsoever whereby but for this
provision the Surety would be exonerated either wholly or in part
(other than a release under seal given by the Landlord and/or the
Management Company as the case may be)
7. Disclaimer or forfeiture of Lease
(a) The Surety hereby further covenants with the Landlord and the
Management Company that:-
(i) if the Crown or a liquidator or trustee in bankruptcy shall
disclaim or surrender this Lease or
(ii) if this Lease shall be forfeited or
(iii) if the Tenant shall cease to exist
THEN the Surety shall if the Landlord by notice in writing given to
the Surety within one hundred and eighty (180) days after such
disclaimer or other event so requires accept from and execute and
deliver to the Landlord a counterpart of a new lease of the Demised
Premises for a term commencing on the date of the disclaimer or other
event and continuing for the residue then remaining unexpired of the
Term such new
-57-
lease to be at the cost of the Surety and to be at the same rents and
subject to the same covenants conditions and provisions as are
contained in this Lease
(b) If the Landlord shall not require the Surety to take a new lease the
Surety shall nevertheless upon demand pay to the Landlord a sum equal
to the Rent and other sums that would have been payable under this
Lease but for the disclaimer or other event in respect of the period
from and including the date of such disclaimer or other event until
the expiration of one hundred and eighty (180) days therefrom or until
the Landlord shall have granted a lease of the Demised Premises to a
third party (whichever shall first occur)
8. Benefit of guarantee and indemnity
This guarantee and indemnity shall enure for the benefit of the successors
and assigns of the Landlord and the Management Company respectively under
this Lease without the necessity for any assignment thereof
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FIFTH SCHEDULE
Matters to which the Demised Premises are subject
In so far as the same relate to or affect the Demised Premises the
matters contained in Property and
Charges Registers of Title Numbers EGL436332 and EGL430275
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SIXTH SCHEDULE
Estate Services
(a) In this Schedule:-
(i) references to "maintain" shall mean maintain inspect test service
repair overhaul amend rebuild renew reinstate replace and shall
include where appropriate treat wash down cleanse paint decorate empty
and drain and the expression "maintenance" shall be construed
accordingly
(ii) "Services" shall mean Estate Services
(iii) "Serviced Areas" shall mean the Estate Common Parts
(b) In deciding the extent nature and quality of the relevant service or
services from time to time the Management Company shall at all times act
reasonably
(c) In performing the Services and any other services hereunder the Management
Company shall be entitled to employ or procure or permit the employment of
managers agents contractors or others
Part A
the Services
Subject to paragraphs (b) and (c) above the following services to be carried out
in accordance with the principles of good estate management shall constitute the
Services:-
1. Serviced Areas
To maintain the Serviced Areas
2. Apparatus plant machinery etc
To maintain and operate all apparatus plant machinery and equipment
comprised in or otherwise serving the Serviced Areas from time to time and
the buildings housing them
3. Pipes
To maintain all Pipes within the Serviced Areas but (within the Estate
Common Parts) only those Pipes the use of which is shared by the occupiers
of more than one building on the Estate
4. Fire alarms etc
To maintain any smoke and/or smoke fire alarms and ancillary apparatus and
fire prevention and fire fighting equipment and apparatus and other safety
equipment and ancillary apparatus and systems comprised in the Serviced
Areas and in any event to maintain fire and smoke detection fire preventive
and fire fighting equipment including sprinklers hydrants hosereels
extinguishers fire alarms fire escapes and fire escape routes and general
means of escape to the extent required to comply in relation to the
Serviced Areas with statutory requirements and the requirements of
responsible authorities or underwriters or insurance companies
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5. Lighting
To keep lit at appropriate times all appropriate parts of the Serviced
Areas
6. Roads Malls etc open
Without prejudice to any right of the Landlord or the Management Company
hereunder so far as shall be reasonably practicable to keep open and
unobstructed the access and circulation areas the roadways streets plazas
malls and other vehicular and pedestrian ways and similar areas comprised
in the Serviced Areas (subject only to:-
(a) any temporary closure from time to time or
(b) closure at certain hours for reasons of security or operational
purposes)
7. Security surveillance and visitor control
To provide security services and personnel including where appropriate in
the Management Company's discretion closed circuit television and/or other
plant and equipment for the purpose of surveillance and supervision of
users of the Serviced Areas Provided that such services and personnel shall
not extend to the Building
8. Provision of signs and general amenities
In the Management Company's discretion to provide and maintain direction
signs and notices seats and other fixtures fittings chattels and amenities
for the convenience of tenants and their visitors and for the enjoyment or
better enjoyment of such parts of the Serviced Areas as are available from
time to time for use by the occupiers of and visitors to the Estate and/or
members of the public as the Landlord or the Management Company may
determine
9. Ornamental features gardens etc
In the Management Company's discretion to provide and maintain hard and
soft landscaping and planting within the Serviced Areas including fountains
sculptures architectural artistic or ornamental features or murals and to
keep all such parts of the Serviced Areas as may from time to time be laid
out as landscaping (including water features) neat clean planted (where
appropriate) properly tended and free from weeds and the grass cut
10. Fixtures fittings etc
To provide and maintain fixtures fittings furnishings finishes bins
receptacles tools appliances materials equipment and other things for the
maintenance appearance upkeep or cleanliness of the Serviced Areas and the
provision of the services set out in this part of the Schedule
11. Windows
As often as the Management Company may consider desirable to clean the
exterior and interior of all windows and window frames in any building
included in the Serviced Areas and to provide and maintain cradles runways
and carriages in connection with such cleaning
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12. Refuse
To provide and operate or procure the provision and operation of means of
collection compaction and disposal of refuse and rubbish (including litter
within the Serviced Areas and if necessary pest control) from the Serviced
Areas and other parts of the Estate and to provide and maintain plant and
equipment for the collection compaction treatment packaging or disposal of
the same
13. Traffic
(So far as the same are not for the time being the exclusive responsibility
of a public authority) to endeavour to control so far as practicable
traffic on the roads and service roads forming part of the Serviced Areas
and parking therein and for that purpose to provide such working and
mechanical systems as the Management Company considers appropriate
including wheel clamping immobilising and removal of vehicles
14. Energy and supply services
To arrange the provision of water fuel oil gas heating cooling air
conditioning ventilation electricity and other energy and supply services
to the Estate Common Parts as may be required for use in running or
operating any service to the Serviced Areas or distributed to occupiers of
the Estate including so far as appropriate standby power generators and
plant excluding any such energy and supply services required to operate the
apparatus plant machinery and equipment referred to in the exclusion to
paragraph 2 of this Part of this Schedule
15. Water Areas and Waterside and Riverside Walkways
To use reasonable endeavours to procure that the responsible party
maintains and operates or (in the Management Company's discretion) to
maintain and operate the dock water retention system comprised in or
immediately adjoining the Estate and to endeavour to keep water areas
within the Estate Common Parts free from debris refuse and other material
and (to the extent reasonably practicable) to take reasonable steps to
treat the same as necessary and to minimise pollution therein and to
provide and maintain such seating security and safety equipment on any
waterside walkways as the Management Company considers appropriate
16. Transport Services
So far as the Landlord or the Management Company considers desirable or
appropriate to provide and (as circumstances permit) operate and maintain
vehicles or other modes of transport staff premises and equipment for a
transport service or services within or for the benefit of the Estate
17. Other services
To provide such other services for the benefit of the Estate or the
convenience of the users or occupiers thereof as the Landlord or the
Management Company may in accordance with the principles of good estate
management consider desirable or appropriate
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Part B
1. Staff
The cost of staff (including direct or indirect labour) for the provision
of services to the Serviced Areas and for the general management (including
accountancy functions) operation and security of the Serviced Areas
(including traffic control and policing) and all other incidental
expenditure including but not limited to:-
(a) salaries insurance health pensions welfare severance and other
payments contributions and premiums
(b) the cost of uniforms working clothes tools appliances materials and
furniture furnishings stationery items and equipment (including
telephones) for the proper performance of the duties of any such staff
(c) providing maintaining repairing decorating and lighting any
accommodation and facilities for staff including any residential
accommodation for staff employed on the Serviced Areas and all rates
gas electricity and other utility charges in respect thereof and any
actual or notional rent for such accommodation
2. Common Facilities
The amount which shall require to be paid for or towards the costs charges
fees and expenses in making laying repairing maintaining and lighting as
the case may be any roads ways forecourts passages pavements party walls or
fences party structures Pipes or other conveniences and easements
whatsoever which may belong to or be capable of being used or enjoyed by
the Estate in common with any Adjoining Property
3. Transportation Facilities
The amount which the Landlord or Management Company properly pays for or
towards the maintenance and lighting of or security for transportation
facilities which provide services to or for the benefit of the Estate and
associated premises and areas and/or the fixtures fittings and equipment
thereon but for the avoidance of doubt excluding any contributions which
the Landlord or the Management Company may from time to time make towards
the Canary Wharf Underground Station (excluding any park areas or other
areas to be used as open spaces for the enjoyment of the public which are
provided or constructed above the Canary Wharf Underground Station and
party structures of such station) or the provision and operation of the
Docklands Light Railway (excluding contributions the Landlord or the
Management Company make towards the maintenance of the station from time to
time)
4. Outgoings
All existing and future rates (including water rates) taxes duties charges
assessments impositions and outgoings (whether parliamentary parochial
local or of any other description and whether or not of a capital or
non-recurring nature) payable in respect of the Serviced Areas or any part
thereof
5. Statutory requirements
The cost of carrying out any works to the Serviced Areas required to comply
with any statute
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6. Representations
The cost of taking any steps deemed desirable or expedient by the Landlord
or the Management Company for complying with making representations against
or otherwise contesting the incidence of the provisions of any statute
concerning town planning rating public health highways streets drainage and
all other matters relating or alleged to relate to the Serviced Areas or
the Estate as a whole or in which occupiers within the Estate have a common
interest
7. Fees of the Estate Surveyor and the Accountant
The proper and reasonable fees costs charges expenses and disbursements of
the Estate Surveyor and the Accountant for or in connection with the
performance of the duties ascribed to the Estate Surveyor and the
Accountant respectively under the provisions of Clause 9
8. Management
(a) The proper and reasonable fees of managing agents employed or retained
by the Management Company for or in connection with the general
overall management and administration and supervision of the Estate
(excluding rent collection)
(b) A fee to the Management Company in connection with the management of
the Estate equal to 10% of the aggregate of the Estate Expenditure
(excluding any items in this paragraph 8(a)) but so that if a firm of
managing agents is appointed to manage the Estate the fee chargeable
by the Management Company in any Estate Financial Year under this
paragraph 8(b) shall be reduced (but not below zero) by an amount
equivalent to the fees (exclusive of Value Added Tax) charged by such
managing agents and included in Estate Expenditure for that Estate
Financial Year pursuant to paragraph 8(a) above
9. Insurance
(a) The cost of insuring (including insurance tax):-
(i) the Serviced Areas against loss or damage by the Insured Risks
in such sum as shall in the Landlord's opinion be the full
reinstatement cost thereof and including architects' surveyors'
and other professional fees (and Value Added Tax thereon) and
expenses incidental thereto the cost of shoring up demolition
and site clearance compliance with local authority requirements
and similar expenses and loss of income (if any) for such period
as shall be reasonable having regard to the likely period
required for obtaining planning permission and reinstating the
Serviced Areas
(ii) any engineering and electrical plant and machinery being part of
the Serviced Areas against sudden and unforeseen damage
breakdown and inspection to the extent that the same is not
covered by paragraph 9(a)(i) above
(iii) property owners liability and public liability or such other
insurances as the Landlord may from time to time deem necessary
to effect
(b) The cost of periodic valuations for insurance purposes
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(c) Works required to the Serviced Areas in order to satisfy the insurers
of the Serviced Areas
(d) Any amount which may be deducted or disallowed by the insurers
pursuant to the excess provision in the Landlord's insurance policy
upon settlement or adjudication of any claim by the Landlord
10. Public activities
The cost of any displays concerts exhibitions or other forms of public
entertainment or activity undertaken within the Serviced Areas and for the
benefit or enjoyment of the Estate or its occupiers
11. Public toilets
The cost of providing operating and maintaining public toilet facilities
within the Serviced Areas or for the benefit or enjoyment of the Estate or
its occupiers
12. Miscellaneous items
(a) Leasing or hiring any of the items referred to in Part A or Part B of
this Schedule
(b) Interest commission and fees in respect of any moneys included in
Estate Expenditure borrowed to finance the provision of services and
any of the items referred to in Part A or Part B of this Schedule
-65-
SEVENTH SCHEDULE
Building Services
(a) In this Schedule references to "maintain" shall mean maintain inspect test
service repair overhaul amend rebuild renew reinstate replace (in all such
cases to the extent necessary to comply with statutory requirements and the
requirement of responsible authorities) and shall include where appropriate
treat wash down cleanse paint decorate empty and drain and the expression
"maintenance" shall be construed accordingly
(b) In deciding the extent nature and quality of the relevant service or
services from time to time the Management Company shall at all times act
reasonably
(c) In performing the Building Services and any other services hereunder the
Management Company shall be entitled to employ or procure or permit the
employment of managers agents contractors or others
(d) In this Schedule the following expressions shall have the following
meanings:-
"The Base Parts of the Building" means the Common Parts of the Building but
excluding:
(i) the passenger lifts
(ii) the goods lifts
(iii) the goods loading docks and adjacent service areas
(iv) the lift lobbies and access corridors serving more than one tenant
(v) the common service corridors
"The Core Parts" means the Retained Parts but excluding:
(i) the Common Parts of the Building
(ii) The Tenant Lavatories
"The Tenant Lavatories" means those lavatories within the Building as shall
from time to time be intended for or designated for the use of the tenants
of Lettable Areas in the Building
Part A
Building Services
Subject to paragraphs (b) and (c) above the following services to be
carried out in accordance with the principles of good estate management
shall constitute the Building Services:-
Part I
1. The Core Parts
To maintain the Core Parts
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2. Base Parts of the Building
To keep clean and maintained the Base Parts of the Building including the
windows thereof and to keep the same adequately lighted where appropriate
during the Business Hours and such other hours as the Management Company
may in its discretion from time to time decide
3. Hot and cold water
During the Business Hours to provide an adequate supply of hot and cold
water to the wash basins in the Building other than in the Tenant
Lavatories
4. Air conditioning
During the Business Hours to provide air conditioning to the Base Parts of
the Building and the Core Parts as each is intended to be air conditioned
to such temperatures and standards as the Management Company may from time
to time reasonably consider appropriate and to maintain all equipment plant
and machinery used in connection therewith other than such as is the
responsibility of the Tenant
Part II
1. Lifts
During the Business Hours to provide a lift service to the Demised Premises
by the operation of the lifts now or from time to time installed and
outside the Business Hours to provide such a lift service as the Management
Company reasonably considers necessary or desirable in the interests of
good estate management
2. Hot and Cold Water
During the Business Hours to provide an adequate supply of hot and cold
water to the wash basis in the Tenant Lavatories
3. Maintenance and Cleaning
To keep clean and maintained including the windows thereof and to keep
adequately lighted where appropriate during the Business Hours and such
other hours as the Management Company may in its discretion from time to
time decide:
(a) the passenger lifts serving the Demised Premises
(b) the goods lifts
(c) the goods loading docks and adjacent service areas
(d) the lift lobbies and access corridors serving more than one tenant
(e) the common service corridors
4. Air Conditioning
During the Business Hours to provide air conditioning to those parts of the
Building which are not supplied pursuant to the provisions of Paragraph 4
of Part I of Part A of this
-67-
Schedule and which are intended to be air conditioned to such temperatures
and standards as the Management Company may from time to time reasonably
consider appropriate and to maintain all equipment plant and machinery used
in connection therewith other than such as is the responsibility of the
Tenant
SEVENTH SCHEDULE
Part B
Part I
1. Retained Parts
The cost of lighting heating furnishing carpeting and equipping and (as
necessary) altering the Core Parts and Base Parts of the Building including
but not limited to the provision in the main entrance halls and lift lobby
areas of floral decorations desks tables chairs and other fixtures and
fittings
2. Apparatus plant machinery etc
The cost of maintaining and operating all apparatus plant machinery and
equipment serving the Core Parts and the Base Parts of the Building from
time to time
3. Fire alarms etc.
The cost of maintaining any fire alarms and ancillary apparatus and fire
prevention and fire fighting equipment and apparatus and other safety
equipment comprised in the Retained Parts or serving the Building and in
any event of maintaining fire and smoke detection fire preventive and fire
fighting equipment including sprinklers hydrants hosereels extinguishers
fire alarms fire escapes and fire escape routes and general means of escape
to the extent required to comply in relation to the Retained Parts with
statutory requirements and the requirements of responsible authorities or
underwriters or insurance companies
4. Security and surveillance
The cost of providing security services and personnel including in the
Management Company's discretion closed circuit television and/or other
plant and equipment for the purpose of surveillance and supervision of
users of or visitors to the Building Provided that such services and
personnel shall not extend to the Demised Premises
5. Staff
The cost of staff (including direct or indirect labour) for the provision
of services to the Core Parts and the Base Parts of the Building and for
the general management (including accountancy functions) and operation of
those parts of the Building and all other incidental expenditure including
but not limited to:-
(a) salaries insurance health pension welfare severance and other payments
contributions and premiums
(b) the cost of uniforms working clothes tools appliances materials and
furniture furnishings stationery items and equipment (including
telephones) for the proper performance of the duties of any such staff
-68-
(c) providing maintaining repairing decorating and lighting any
accommodation and facilities for staff including any residential
accommodation for staff employed on the Building and all rates gas
electricity and other utility charges in respect thereof and any actual
or notional rent for such accommodation
6. Common Facilities
The amount which shall require to be paid or contributed towards the costs
charges fees and expenses in making laying repairing maintaining rebuilding
decorating cleansing and lighting as the case may be any roads ways
forecourts loading docks and bays passages pavements party walls or fences
party structures Pipes or other conveniences and easements which may belong
to or be capable of being used or enjoyed by the Building in common with
any Adjoining Property
7. Outgoings
All existing and future rates (including water rates) taxes duties charges
assessments impositions and outgoings whatsoever (whether parliamentary
parochial local or of any other description and whether or not of a capital
or non-recurring nature) payable in respect of the Retained Parts of any
part thereof
8. Representations
The cost of taking any steps deemed desirable or expedient by the Landlord
or the Management Company for complying with making representations against
or otherwise contesting the incidence of the provisions of any statute
concerning town planning rating public health highways streets drainage and
all other matters relating or alleged to relate to the Retained Parts or
the Building as a whole or in which occupiers within the Building have a
common interest
9. Regulations
The cost of compliance with the Regulations so far as the same relate to
the provision of the services and other items referred to in Part I of Part
A and Part I of Part B of this Schedule
10. Miscellaneous items
(a) Leasing or hiring any of the items referred to in Part I of Part A or
Part I of Part B of this Schedule
(b) Interest commission and fees in respect of any moneys included in
Building Expenditure borrowed to finance the provision of services and
any of the items referred to in Part I of Part A or Part I of Part B of
this Schedule
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Part II
1. Retained Parts
The costs of lighting heating furnishing carpeting and equipping and (as
necessary) altering:
(a) The Tenant Lavatories
(b) The areas of the Building identified in Paragraph 3 of Part II of Part
A of this Seventh Schedule
2. Apparatus Plant Machinery etc
The costs of maintaining and operating all apparatus plant machinery and
equipment serving the Building with the exception of the Core Parts and the
Base Parts of the Building
3. Security and surveillance
The cost of providing security services and personnel including in the
Management Company's discretion closed circuit television and/or other
plant and equipment for the purpose of monitoring organising and
supervising the use of any loading bays delivery areas and goods lifts
within the Building Provided that such services and personnel shall not
extend to the Demised Premises
4. Provision of signs and general amenities
The cost of providing and maintaining direction signs and notices seats and
other fixtures fittings chattels and amenities for the convenience of
tenants and their visitors and for the enjoyment or better enjoyment of
such parts of the Common Parts of the Building as are available from time
to time for use by the occupiers of and visitors to the Building and/or
members of the public as the Landlord or the Management Company may
determine
5. Ornamental features gardens etc
The cost of providing and maintaining hard and soft landscaping and
planting within the Retained Parts including fountains sculptures
architectural artistic or ornamental features or murals and of keeping all
such parts of the Retained Parts as may from time to time be laid out as
landscaping (including water features) neat clean planted (where
appropriate) properly tended and free from weeds and the grass cut
6. Fixtures fittings etc
The cost of providing and maintaining fixtures fittings furnishings
finishes bins receptacles tools appliances materials equipment and other
things for the maintenance appearance upkeep or cleanliness of the Retained
Parts and the provision of any services for the Building
7. Windows
The cost of cleaning the exterior and (save where the responsibility of a
tenant) interior of all windows and window frames in the Retained Parts and
of providing and maintaining cradles runways and carriages in connection
with such cleaning
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8. Refuse
The cost of providing and operating or procuring the provision and
operation of means of collection compaction and disposal of refuse and
rubbish (including litter within the Common Parts of the Building and if
necessary pest control) from the Building and of providing and maintaining
plant and equipment for the collection compaction treatment packaging or
disposal of the same
9. Energy and supply services
The cost of the provision of water fuel oil gas heating cooling air
conditioning ventilation electricity and other energy and supply services
to the Building as may be required for use in running or operating any
service to the Building or distributed to occupiers of the Building
including so far as appropriate standby power generators and plant
10. Other services
(a) The cost of providing such other services for the benefit of the
Building or the convenience of the occupiers thereof including without
limitation a receipt and dispatch centre for items delivered by courier
as the Management Company may in accordance with the principles of good
estate management consider desirable or appropriate
(b) Such costs and expenses as the Management Company reasonably considers
appropriate or desirable to provide in respect of the provision of
services to the car park within the Building
11. Staff
The cost of staff (including direct or indirect labour) for the provision
of services to those parts of the Building not being Core Parts or Base
Parts of the Building and for the general management (including accountancy
functions) and operation of those parts of the Building and all other
incidental expenditure including but not limited to:-
(a) salaries insurance health pension welfare severance and other payments
contributions and premiums
(b) the cost of uniforms working clothes tools appliances materials and
furniture furnishings stationery items and equipment (including
telephones) for the proper performance of the duties of any such staff
(c) providing maintaining repairing decorating and lighting any
accommodation and facilities for staff including any residential
accommodation for staff employed on the Building and all rates gas
electricity and other utility charges in respect thereof and any actual
or notional rent for such accommodation
12. Common Facilities
The amount which shall require to be paid or contributed towards the costs
charges fees and expenses in making laying repairing maintaining rebuilding
decorating cleansing and lighting as the case may be any roads ways
forecourts loading docks and bays passages pavements party walls or fences
party structures Pipes or other conveniences and easements
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which may belong to or be capable of being used or enjoyed by the Building
in common with any Adjoining Property
13. Outgoings
All existing and future rates (including water rates) taxes duties charges
assessments impositions and outgoings whatsoever (whether parliamentary
parochial local or of any other description and whether or not of a capital
or non-recurring nature) payable in respect of the Retained Parts of any
part thereof
14. Statutory requirements
The cost of carrying out any works to the Retained Parts required to comply
with any statute
15. Representations
The cost of taking any steps deemed desirable or expedient by the Landlord
or the Management Company for complying with making representations against
or otherwise contesting the incidence of the provisions of any statute
concerning town planning rating public health highways streets drainage and
all other matters relating or alleged to relate to the Retained Parts or
the Building as a whole or in which occupiers within the Building have a
common interest
16. Regulations
The cost of compliance with the Regulations so far as the same relate to
the provision of the services and other items referred to in Part II of
Part A and Part II of Part B of this Schedule
17. Enforcement of covenants etc
The cost of enforcing the covenants in any other leases of Lettable Areas
within the Building for the general benefit of the tenants thereof as
determined by the Landlord or the Management Company
18. Fees of the Building Surveyor and the Accountant
The proper and reasonable fees costs charges expenses and disbursements of
the Building Surveyor and the Accountant for or in connection with the
performance of the duties ascribed to the Building Surveyor and the
Accountant respectively under the provisions of Clause 9 of this Lease
19. Management
(a) The proper and reasonable fees of managing agents employed or retained
by the Management Company for or in connection with the general overall
management and administration and supervision of the Building
(excluding rent collection)
(b) A fee to the Management Company in connection with the management of
the Building such fee being equal to 10% of the Building Expenditure
(excluding any items in sub-paragraph 19(a) of this paragraph 19) but
so that if a firm of managing agents is appointed to manage the
Building the fee chargeable by the Management Company in any Building
Financial Year under this paragraph 19(b) shall be reduced (but not
below zero) by an amount equivalent to the fees (exclusive of Value
Added
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Tax) charged by such managing agents and included in Building
Expenditure for that Building Financial Year pursuant to paragraph
19(a) above
20. Miscellaneous items
(a) Leasing or hiring any of the items referred to in Part II of Part A or
Part II of Part B of this Schedule
(b) Interest commission and fees in respect of any moneys included in
Building Expenditure borrowed to finance the provision of services and
any of the items referred to in Part I of Part A or Part I of Part B of
this Schedule
21. Insurance
(a) Works required to the Building in order to satisfy the insurers of the
Building
(b) Any amount which may be deducted or disallowed by the insurers pursuant
to any excess provision in the Landlord's insurance policy upon
settlement or adjudication of any claim by the Landlord
22. Decorations
Providing and maintaining Christmas and other special decorations for the
Building
23. Staff
The cost of employing such staff as the Management Company may in its
absolute discretion deem desirable or necessary to enable it to provide all
or any of the services in the Building and for the general management of
the Building
24. Name boards
The cost of providing and installing name boards of such size and design as
the Landlord or the Management Company may in its absolute discretion
determine in the main entrance to the Building and at such other locations
as the Landlord or the Management Company may consider desirable
25. Generally
Any costs and expenses (not referred to above) which the Management Company
may incur in providing such other services and in carrying out such other
works as the Management Company in its absolute discretion may deem
desirable or necessary for the benefit of the Building or any part of it or
the tenants or occupiers thereof or for securing or enhancing any amenities
of or within the Building or in the interest of good estate management
26. Building Car Park
The cost of maintaining, lighting, equipping and (as necessary) altering
any part of the car park within the Building over or in respect of which
the Tenant has access or rights to pass
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EIGHTH SCHEDULE
Authorised Guarantee Agreement to be given by Tenant
pursuant to Clause 4.21.2(b)(i)
THIS DEED is made the day of 20..
BETWEEN:-
(1) [ ]whose registered office is at[
](registered number: )(the "Tenant")[and]
(2) [ ]whose registered office is at[
](registered number: )(the "Landlord")[and]
(3) [ ]whose registered office is at[
](registered number: )(the "Guarantor")]
WHEREAS:-
(A) This Agreement is made pursuant to the lease dated [ ] and made between
[ ] (the "Lease") which expression shall include (where the context so
admits) all deeds and documents supplemental to it (whether expressed
to be so or not) relating to the premises at [ ] (the "Premises")
(B) The Tenant holds the Premises under the Lease and wishes to assign the
Lease to [ ] (the "Assignee"), and pursuant to the Lease the Landlord's
consent is required to such assignment (the "Assignment") and such
consent is given subject to a condition that the Tenant [and the
Guarantor] [is/are] to enter into a deed in the form of this Deed
NOW THIS DEED WITNESSES as follows:-
1. Authorised Guarantee
Pursuant to the condition referred to above, the Tenant covenants with the
Landlord, as a primary obligation, that the Assignee or the Tenant shall,
at all times during the period (the "Guarantee Period") from the completion
of the Assignment until the Assignee shall have ceased to be bound by the
tenant covenants (which in this Deed shall have the meaning attributed by
section 28(1) of the Landlord and Tenant (Covenants) Act 1995 (the "1995
Act")) contained in the Lease (including the payment of the rents and all
other sums payable under the Lease in the manner and at the times specified
in the Lease), duly perform and observe the tenant covenants
2. Tenant's liability
2.1 The Tenant agrees that the Landlord, in the enforcement of its rights under
this Deed, may proceed against the Tenant as if the Tenant were the sole or
principal debtor in respect of the tenant covenant in question
2.2 For the avoidance of doubt, notwithstanding the termination of the
Guarantee Period the Tenant shall remain liable under this Deed in respect
of any liabilities which may have accrued prior to such termination
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2.3 For the avoidance of doubt the Tenant shall be liable under this Deed for
any costs and expenses incurred by the Landlord in enforcing the Tenant's
obligations under this Deed
3. Disclaimer of Lease
The Tenant further covenants with the Landlord that if the Crown or a
liquidator or trustee in bankruptcy shall disclaim the Lease during the
Guarantee Period the Tenant shall, if the Landlord by notice in writing
given to the Tenant within six (6) months after such disclaimer, accept
from and execute and deliver to, the Landlord a counterpart of a new lease
of the Premises for a term commencing on the date of the disclaimer and
continuing for the residue then remaining unexpired of the term of the
Lease, such new lease to be at the same rents and subject to the same
covenants and provisions as are contained in the Lease
4. Supplementary provisions
By way of provision incidental or supplementary to Clauses 1, 2 and 3 of
this Deed:-
4.1 Postponement of claims by Tenant
The Tenant further covenants with the Landlord that the Tenant shall:-
(a) not claim in any liquidation, bankruptcy, composition or arrangement of
the Assignee in competition with the Landlord and shall remit to the
Landlord the proceeds of all judgments and all distributions it may
receive from any liquidator, trustee in bankruptcy or supervisor of the
Assignee;
(b) hold for the benefit of the Landlord all security and rights the Tenant
may have over assets of the Assignee whilst any liabilities of the
Tenant or the Assignee to the Landlord remain outstanding; and
(c) not exercise any right or remedy in respect of any amount paid or any
liability incurred by the Tenant in performing or discharging its
obligations contained in this Deed, or claim any contribution from any
other guarantor
4.2 Postponement of participation by Tenant in security
The Tenant shall not be entitled to participate in any security held by the
Landlord in respect of the Assignee's obligations to the Landlord under the
Lease or to stand in the place of the Landlord in respect of any such
security until all the obligations of the Tenant or the Assignee to the
Landlord under the Lease have been performed or discharged
4.3 No release of Tenant
None of the following, or any combination of them, shall release,
determine, discharge or in any way lessen or affect the liability of the
Tenant as principal obligor under this Deed or otherwise prejudice or
affect the right of the Landlord to recover from the Tenant to the full
extent of this guarantee:-
(a) any neglect, delay or forbearance of the Landlord in endeavouring to
obtain payment of any rents or other amounts required to be paid by the
Assignee or in enforcing the performance or observance of any of the
obligations of the Assignee under the Lease;
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(b) any refusal by the Landlord to accept rent tendered by or on behalf of
the Assignee at a time when the Landlord was entitled (or would after
the service of a notice under Section 146 of the Law of Property Act
1925 have been entitled) to re-enter the Premises;
(c) any extension of time given by the Landlord to the Assignee;
(d) any reviews of the rent payable under the Lease and (subject to Section
18 of the 1995 Act) any variation of the terms of the Lease or the
transfer of the Landlord's reversion;
(e) any change in the constitution, structure or powers of either the
Tenant, the Assignee or the Landlord or the liquidation, administration
or bankruptcy (as the case may be) of either the Tenant or the
Assignee;
(f) any legal limitation, or any immunity, disability or incapacity of the
Assignee (whether or not known to the Landlord) or the fact that any
dealings with the Landlord by the Assignee may be outside, or in excess
of, the powers of the Assignee;
(g) any other deed, act, omission, failure, matter or thing whatsoever as a
result of which, but for this provision, the Tenant would be exonerated
either wholly or partly (other than a release executed and delivered as
a deed by the Landlord or a release effected by virtue of the 1995 Act)
4.4 Costs of new lease
The Landlord's reasonable costs in connection with any new lease granted
pursuant to Clause 3 of this Deed shall be borne by the Tenant and paid to
the Landlord (together with Value Added Tax) upon completion of such new
lease
5. [Guarantee]
[If there is a guarantor, repeat the provisions set out in paragraphs 1 to
9 (inclusive) of Schedule 4]
6. Guarantor to join in new lease
If the Tenant shall be required to take up a new lease pursuant to Clause 3
of this Deed, the Guarantor shall join in, and execute and deliver to the
Landlord a counterpart of, such new lease in order to guarantee the
obligations of the Tenant under it in the terms of Schedule 4 to the Lease]
IN WITNESS whereof this deed has been executed by the Tenant and is intended to
be and is hereby delivered on the date first above written
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NINTH SCHEDULE
Expert determination
1. If a Counternotice is served in accordance with Clause 4.21.4, the
Landlord's determination shall be reviewed by an independent expert who
shall act as an expert and not as an arbitrator and who shall be agreed or
appointed in accordance with paragraphs 3 and 4. The expert shall:-
1.1 give notice to the Landlord and the Tenant inviting each of them to submit
representations to him within ten (10) Working Days of the notice
1.2 give notice to each party offering each party an opportunity to make
counter-submissions in respect of any such representations within ten (10)
Working Days of such notice
1.3 provide his decision within ten (10) Working Days of receipt of the
counter-submissions and give written reasons for his decision
2. The decision of any such expert shall be conclusive and binding on the
Landlord and the Tenant. If any expert so agreed or appointed shall die or
become unwilling to act or incapable of acting for any reason or fail to
act with reasonable expedition, another such expert may be agreed or
appointed in his place in like manner
3. If and to the extent that the Counternotice requires an expert to review
the Landlord's determination that any of the circumstances set out in
Clause 4.21.2(a)(i)-(iii) exist, the expert shall be a Chartered Accountant
with not less than 10 years' post qualification experience immediately
preceding the date of the reference to him appointed by agreement between
the Landlord and the Tenant or, in the absence of such agreement within ten
(10) Working Days, nominated at the request of either of them by the
President for the time being of the Institute of Chartered Accountants in
England and Wales (or his duly appointed deputy or any one authorised by
him to make appointments on his behalf)
4. If and to the extent that the Counternotice requires an expert to review
the Landlord's determination that any of the circumstances set out in
Clauses 4.21.2(a)(iv)-(vi) exist, the expert shall be a Solicitor with not
less than 10 years' post qualification experience immediately preceding the
date of the reference to him appointed by agreement between the Landlord
and the Tenant or, in the absence of such agreement within ten (10) Working
Days, nominated at the request of either of them by the President for the
time being of the Law Society in England and Wales (or his duly appointed
deputy or any one authorised by him to make appointments on his behalf)
5. If and to the extent that the Counternotice requires an expert to review
the Landlord's determination that any of the circumstances set out in
Clauses 4.21.2(a)(vii) to (viii) exist or that any of the conditions
referred to in Clause 4.21.2(b) should be imposed, the expert shall be a
Chartered Surveyor with not less than 10 years' post qualification
experience immediately preceding the date of the reference to him appointed
by agreement between the Landlord and the Tenant or, in the absence of such
agreement within ten (10) Working Days, nominated at the request of either
of them by the President for the time being of the Royal Institution of
Chartered Surveyors (or his duly appointed deputy or anyone authorised by
him to make appointments on his behalf)
6. The fees payable to the President or any such expert shall be borne and
paid by the Landlord and the Tenant in such shares and in such manner as
the expert shall determine and failing
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any such decision in equal shares (and if one party shall pay all the fees
it shall be entitled to recover from the other any appropriate share which
the other should have paid)
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TENTH SCHEDULE
Defects
1. Interpretation
In this Schedule the following expressions shall bear the following
meanings:-
1.1 "Agreement for Lease" means the agreement for lease dated 15 November 2000
(as varied prior to the date hereof) made between Heron Quays Properties
Limited (1) The Northern Trust Company (2) and Canary Wharf Group plc (3)
1.2 "Defects Costs in respect of the Base Building Works" shall have the
meaning set out in the Agreement for Lease
1.3 "Defects Costs in respect of the Infrastructure Works" shall have the
meaning set out in the Agreement for Lease
1.4 "Defects in the Base Building Works" shall have the meaning set out in the
Agreement for Lease
1.5 "Developer" shall have the meaning set out in the Agreement for Lease
1.6 "Landlord's Contracting Team" shall have the meaning set out in the
Agreement for Lease
1.7 "Latent Defective Works" shall have the meaning set out in the Agreement
for Lease
1.8 "Snagging Items" shall have the meaning set out in the Agreement for Lease
2. Snagging Items
The Landlord shall (or shall procure that the Developer shall) as soon as
reasonably practicable after Base Building Works Practical Completion (as
defined in the Agreement for Lease) remedy or cause to be remedied the
Snagging Items
3. Defects in the Base Building Works
Without prejudice to paragraph 2 (above) the Landlord shall as soon as
reasonably practicable and at times to be agreed with the Tenant as
provided in paragraph 4 (whether or not upon receiving notice in writing of
the same from the Tenant) procure to be remedied and made good to the
reasonable satisfaction of the Tenant all Defects in the Base Building
Works or the Landlord shall procure that the Developer complies with its
obligations under the Agreement for Lease and the Tenant shall give notice
to the Landlord as soon as reasonably practicable upon becoming aware of
any Defects in the Base Building Works without obligation on the Tenant to
investigate and for the avoidance of doubt failure to so notify shall not
relieve the Landlord of any of its obligations in this paragraph 3
4. Access to the Demised Premises to remedy Snagging Items and/or Defects in
the Base Building Works
The Tenant shall permit the Landlord the Developer and/or the Landlord's
Contracting Team and all persons authorised by it at all reasonable times
during normal working hours (or at any time in the event of emergency) and
on giving reasonable prior written notice
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(consulting with the Tenant as to the timing of entry) to enter the Demised
Premises in order to remedy any Snagging Items and/or any Defects in the
Base Building Works and the persons so entering shall comply with Clause
8.17 of this Lease and cause the minimum of disturbance reasonably
practicable and shall make good to the reasonable satisfaction of the
Tenant any physical damage caused thereby to the Demised Premises
5. Defects Costs in respect of Base Building Works
The Landlord shall (subject as set out in paragraph 7 (below) indemnify or
procure that the Developer shall indemnify the Tenant in respect of any and
all Defects Costs in respect of the Base Building Works and shall reimburse
the same to the Tenant within ten (10) Working Days of demand
6. Defects Costs in respect of the Infrastructure Works
The Landlord shall indemnify or procure that the Developer shall indemnify
the Tenant in respect of any and all Defects Costs in respect of the
Infrastructure Works and shall reimburse the same to the Tenant within ten
(10) Working Days of demand
7. Tenant to notify Landlord of Latent Defective Works
(a) Save in the case of emergency prior to the Tenant incurring any
expenditure (provided that this shall not include any claim under the
service charge provisions contained in this Lease) which may
constitute Defects Costs in respect of the Base Building Works the
Tenant shall first notify the Landlord and the Developer of the defect
concerned and shall give the Landlord and the Developer a reasonable
and proper period (taking into account the nature and effect of the
defect and assuming prompt action diligently pursued by the Landlord
and the Developer) to inspect and investigate the same
(b) If the Landlord or the Developer acknowledges that the defect is
Latent Defective Works and brings forward reasonably acceptable
proposals for remedying items and implements the same promptly the
Tenant shall allow the Landlord and the Developer and all workmen
contractors servants or other persons required by them access to the
Demised Premises at reasonable times (or at any time in the event of
emergency) for the purpose of making good the Latent Defective Works,
subject to Clause 8.17 of this Lease and complying with all reasonable
security and safety requirements of the Tenant and the persons
entering causing as little disruption and damage as is reasonably
practicable to the Demised Premises and making good all physical
damage whatsoever thereby caused
(c) If the Landlord fails to comply with its obligations in paragraph 7
the Landlord or the Developer will within ten (10) Working Days of
demand and provision of adequate evidence of expenditure reimburse the
Tenant the Defects Costs in respect of the Base Building Works
(d) Disputes and differences arising under this paragraph 7 shall be
determined by an Independent Person acting as an expert pursuant to
Clause 30 of the Agreement for Lease
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8. Landlord to have no other liability
Subject to remedy or payment as set out in paragraphs 3, 5, 6 and 7(c) the
Landlord shall:-
(a) have no other liability to the Tenant under this Lease for costs
losses damages and expenses resulting from Latent Defective Works; and
(b) have no greater liability to the Tenant than the Developer has to the
Tenant under the Agreement for Lease; and
(c) only be liable to the Tenant to the same extent that the Developer is
liable to the Tenant under the Agreement of Lease
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THE COMMON SEAL of HERON QUAYS )
(HQ4) T1 LIMITED was affixed in the )
presence of:- )
Director /s/ A. Peter Anderson II
Secretary /s/ John Raymond Garwood
THE COMMON SEAL of HERON QUAYS )
(HQ4) T2 LIMITED was affixed in the )
presence of:- )
Director /s/ A. Peter Anderson II
Secretary /s/ John Raymond Garwood
THE COMMON SEAL of CANARY )
WHARF MANAGEMENT LIMITED was )
affixed in the presence of:- )
Director /s/ A. Peter Anderson II
Secretary /s/ John Raymond Garwood
Executed as a Deed by THE NORTHERN )
TRUST COMPANY acting by )
/s/ Douglas Maclennan Authorised Signatory
/s/ Mark Gossett Authorised Signatory
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