DATED 25th MARCH 1999
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1. IVYGROVE DEVELOPMENTS LIMITED (Landlord)
2. NEXSAN TECHNOLOGIES LIMITED (Tenant)
Counterpart/
L E A S E
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of
Premises: Unit 6, Eastside Park, East Service Road, Raynesway, Derby.
Contractual Term: 6 years.
Initial Rent: British Pound 15,000.00 per annum.
Review Date: In the year 2001.
FLINT, BISHOP & BARNETT
SOLICITORS
DERBY
INDEX TO CLAUSES
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1. Definitions and Interpretation
2. The letting terms
3. Tenant's covenants
4. Provisos
5. Landlord's covenants
6. Obligations in Schedules to this Lease
7. Break Clause
8. Expert Determination
9. Legal fees
10. Stamp duty certificate
11. Covenant status of Lease
Schedule 1 - Description of the Premises, rights and reservations
Schedule 2 - Rent reviews
Schedule 3 - Insurance provisions
Schedule 4 - Form of guarantee on Assignment
DATE: 25TH day of March 1999
PARTIES:-
(1) The Landlord: IVYGROVE DEVELOPMENTS LIMITED whose registered office is
at Racecourse Industrial Park Mansfield Road Derby DE21 4SX
(2) The Tenant: NEXSAN TECHNOLOGIES LIMITED whose registered office is at
102 Friar Gate Derby DE1 1FH
OPERATIVE PROVISIONS
1 DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Lease where the context so allows:
"BUILDING" means the building of which the Premises form part edged
blue on the plan annexed hereto and refers to each and every part of
the Building and the car park service or loading area service road and
any other areas the use and enjoyment of which is appurtenant to the
Building whether or not within the structure of the Building
"COMMON PARTS" means those parts of the site to be used in common by
any of the Tenant, other tenants and occupiers of the site, the
Landlord, and those properly authorised or permitted by them to do so,
and "Common Parts" includes (but without limitation) the courtyards,
external paviours, service areas, roadway, turning area, main entrance
and other such amenities, but excludes any such parts as may
be within the Premises;
"CONDUCTING MEDIA" means any of the drains, sewers, conduits, flues,
gutters, gullies, channels, ducts, shafts, watercourses, pipes,
cables, wires and mains
"INSURED RISKS" has the meaning given to it in Schedule 3
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"INTEREST" means interest at the rate of 4 per cent over the base rate
of Midland Bank Plc for the time being and from time to time (as well
after as before judgment) or such other comparable rate as the
Landlord may reasonably designate if the base rate cases to be
published, compounded at quarterly rests on 31st March, 30th June,
30th September and 31st December in each year
"LANDLORD" includes all persons from time to time entitled to the
immediate reversion to this Lease
"LEASE" includes any documents supplemental to this Lease
"MEASURING CODE" means the Code of Measuring Practice (Fourth Edition
RICS/ISVA 1993)
"OUTGOINGS" means in relation to the Premises all non-domestic rates,
water rates, water charges and all existing and future rates, taxes,
charges, assessments, impositions and outgoings whatsoever (whether
parliamentary municipal parochial or otherwise) which are now or may
at any time be payable, charged or assessed on property or the owner
or occupier of property, but "taxes" in this context does not include
Value Added Tax, nor any taxes imposed on the Landlord in respect of
the yearly rent reserved by this Lease or in respect of a disposal of
the interest in immediate reversion to this Lease
"PREMISES" means the property described in Part 1, Schedule 1 and
refers to each and every part of the Premises and includes:-
(1) the inside and outside of the windows and other lights and the
frames, glass, equipment and fitments relating to windows and
lights of the Premises but excluding the glass panels in the
roof;
(2) the doors, door frames equipment, fitments and any glass relating
to the doors of the Premises;
(3) the internal plaster or other surfaces of load bearing walls and
columns within the Premises and of walls which form boundaries of
the Premises;
(4) non-load bearing walls within the Premises;
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(5) the external sheeting to the load bearing walls and the flooring;
(6) the plaster or other surfaces of the ceilings and false ceilings
within the premises and the voids between the ceilings and false
ceilings;
(7) appurtenances, fixtures, fittings and rights granted by this
Lease
and improvements and additions made to, and fixtures fittings and
appurtenances in, the Premises but excludes the structural parts
loadbearing framework, roof, foundations, and external walls as
opposed to sheeting, and the Conducting Media and machinery and plant
within
"TENANT" includes the Tenant's successors in title and assigns in whom
this Lease may for the time being be vested;
"TERM" means the term of years granted by this Lease;
"UNSECURED UNDERLETTING" means an underletting of the whole or part of
the Premises in relation to which the underlessor and the underlessee
have agreed to exclude the provisions of Section 24 to 28 of the
Landlord and Tenant Act 1954 and their agreement to do so has been
duly authorized beforehand by the Court
1.2 INTERPRETATION OF RESTRICTIONS AND LIABILITY
1.2.1 Where the Tenant is placed under a restriction in this
Lease, the restriction includes the obligation on the Tenant
not to permit or allow the infringement of the restriction
by any person
1.2.2 References to "liability" include, where the context allows,
claims, demands, proceedings, damages, losses, costs and
expenses
1.3 CLAUSES AND CLAUSE HEADINGS
1.3.1 The clause and paragraph headings in this Lease are for ease
of reference only and are not be taken into account in the
construction or interpretation of any covenant condition or
proviso to which they refer
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1.3.2 Unless the context otherwise requires, references
1.3.2.1 to numbered clauses and Schedules are references
to the relevant clause in or Schedule to this
Lease; and
1.3.2.2 in any Schedule to a numbered paragraph are
references to the relevant paragraphs in that
Schedule
1.4 SINGULAR AND PLURAL MEANINGS
Words in this Lease importing the singular meaning, where the context so
allows, include the plural meaning and vice versa
1.5 STATUES AND STATUTORY INSTRUMENTS
References in this Lease to any statutes or statutory instruments include
and refer to any statute or statutory instrument amending consolidating or
replacing them respectively from time to time in force, and references to a
statute include statutory instruments and regulations made pursuant to them
1.6 GENDER
Words in this Lease importing any one gender include both other genders and
may be used interchangeably, and words denoting natural persons where the
context so allows include corporations and vice versa
1.7 JOINT AND SEVERAL OBLIGATIONS
At any time that the party of the second part to this Lease is two or more
persons the expression "the Tenant" include the plural number and
obligations in this Lease expressed or implied to be made with the Tenant
or by the Tenant are to be treated as made with or by such individuals
jointly and severally
2 THE LETTING TERMS
In consideration of the rent reserved by and the covenants in this Lease:-
2.1 the Landlord LETS with Full Title Guarantee to the Tenant:
2.1.1 ALL the Premises;
2.1.2 TOGETHER with the rights set out in Schedule 1 Part 2; and
2.1.3 EXCEPT AND RESERVED to the Landlord the rights set out in
Schedule Part 3;
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2.2 for the TERM of Six years commencing on 25th March 1999, determinable
as provided by this Lease subject to the Encumbrances; and
2.3 the Tenant PAYING during the Term:
2.3.1 the yearly rent of FIFTEEN THOUSAND POUNDS inclusive of
V.A.T. (subject to clause 2.3.4 hereof and subject to
revision under Schedule 2) by equal quarterly payments in
advance on the usual quarter days in every year the first
(or a proportionate part) of such payments in respect of the
period commencing on the _______________ and ending on the
quarter day to be made on the grant of this Lease;
2.3.2 as additional rent the monies payable by the Tenant under
Schedule 3 commencing on 25th March 1999; and
2.3.3 as additional rent any Value Added Tax chargeable on the
rent and additional rent reserved in Clauses 2.3.1 and 2.3.2
2.3.4 the electricity supply for the premises shall be sub-metered
and charged accordingly by the Landlord either monthly or
quarterly to suit.
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3 TENANT'S COVENANTS
The Tenant covenants with the Landlord during the Term and any extension by
statute of the tenancy created by this Lease as follows:-
3.1 RENT
3.1.1 To pay the yearly rent reserved by this Lease, free from any
deductions and rights of set-off, at the times and in the
manner required in clause 2.3.1 and by means of a Standing
Order to the Tenant's bankers
3.1.2 To pay the additional rents reserved by this Lease at the
times and in the manner specified in relation to each of
them
3.2. INTEREST
3.2.1 To pay Interest on so much of the rents, reviewed rents, and
other monies payable under this Lease as remain unpaid
fourteen days after they have become due from the date that
they became due until the payment is made to the Landlord
3.2.2 To pay Interest under Clause 3.2.1 for any period during
which the Landlord properly refuses to accept the tender of
payment because of an unremedied breach of covenant of the
Tenant
3.3 OUTGOINGS AND CONTRIBUTIONS
3.3.1. To pay Outgoings;
3.3.2 To refund to the Landlord on demand (where Outgoings relate
to the whole or part of the Building or other property
including the Premises) a fair and proper proportion
attributable to the Premises, such proportion to be
conclusively determined by the Landlord or the Landlord's
Surveyor
3.3.3 To reimburse the Landlord for loss of relief from
non-domestic rate of unoccupied property which would have
been available to the Landlord in respect of vacancy of the
Premises after the termination of this Lease but for the
allowance of relief to the Tenant or any other person
formerly in occupation of the Premises for vacancy
commencing before the termination of this Lease
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3.3.4 To pay electricity consumed on the premises which shall be
sub-metered and charged accordingly by the Landlord every
quarter period.
3.3.5 To pay to the Landlord on demand a fair and proper
proportion of the expense of repairing and maintaining any
party walls
3.4. REPAIR
Well and substantially to repair maintain and clean the Premises and to
keep the Premises in good and substantial repair maintained and in clean
condition (except in respect of damage by Insured Risks as allowed in
Schedule 3) PROVIDED THAT the Tenants shall not
3.5 DECORATIONS
3.5.1 To decorate the inside of the Premises in the last three
months of the Term (howsoever determined) with two coats of
good quality paint or good quality polish, and with paper
for those parts normally papered, or other suitable and
appropriate materials of good quality, in a workmanlike
manner (such decorations in the last three months of the
Term to be executed in such colours patterns and materials
as the Landlord may reasonably require)
3.5.2 Not without the consent of the Landlord to alter cover up or
change any part of the architectural decorations or the
external colour of the Premises
3.6 LANDLORD'S RIGHT OF INSPECTION AND RIGHT OF REPAIR
3.6.1 To permit the Landlord and its employees or agents at all
reasonable times to enter into inspect and view the Premises
and examine their condition and also to take a schedule of
fixtures in the Premises
3.6.2 If any breach of covenant, defects, disrepair, removal of
fixtures or unauthorized alterations or additions are found
on inspection for which the Tenant is liable, then, on
notice from
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the Landlord, to execute to the reasonable satisfaction of
the Landlord or its Surveyor all repairs works replacements
or removals required within two months (or sooner if
necessary) after the receipt of such notice
3.6.3 If the Tenant fails to comply with a notice under clause
3.6.2, the Landlord may itself or by its workpeople or
agents enter the Premises and execute the repairs works
replacement or removals
3.6.4 To pay to the Landlord on demand all expenses so incurred
under clause 3.6.3 (such expenses and any Interest on them
to be recoverable as if they were rent in arrear)
3.7 YIELD UP IN REPAIR AT THE END OF THE TERM
At the termination of this Lease or at such later time as Landlord recovers
possession of the Premises from the Tenant:
3.7.1 quietly to yield up the Premises (with all additions and
improvements to the Premises and all fixtures in the
Premises, other than tenant's fixtures which the Tenant may
be entitled to remove) repaired, maintained, cleaned,
decorated and kept in accordance with the Tenant's Covenants
in this Lease (except in respect of damage by Insured Risks
as allowed in Schedule 3);
3.7.2 if so requested by the Landlord, to remove from the Premises
all the Tenant's belongings - that is to say trade fixtures
and fittings and all notices, notice boards and signs
bearing the name of or otherwise relating to the Tenant
(including in this context any persons deriving title to the
Premises under the Tenant) or its business; and
3.7.3 to make good to the satisfaction of the Landlord all damage
to the Premises and the Building resulting from the removal
of the Tenant's belongings from the Premises
3.8 LANDLORDS RIGHT OF RE-ENTRY FOR REPAIRS ETC.
3.8.1 To permit the Landlord or other owners, tenants or occupiers
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of the Building or any adjoining or neighbouring property
and their respective agents, workmen and employees to enter
the Premises at reasonable times, after giving to the Tenant
written notice (except in emergency):
3.8.1.1 to alter, maintain or repair the Building or the
adjoining premises or property of the Landlord or
person so entering; or
3.8.1.2 to construct, alter, maintain, repair or fix
anything or additional thing serving such property
and running through or on the Premises; or
3.8.1.3 to comply with an obligation to any third party
having legal rights over the Building the
Premises; or
3.8.1.4 in exercise of a right or to comply with an
obligation of repair maintenance or renewal under
this Lease; or
3.8.1.5 in connection with the development of the
remainder of the Building or any adjoining or
neighbouring land or premises including the right
to build on or into or in prolongation of any
boundary wall of the Premises -
without payment of compensation for any nuisance annoyance
inconvenience or damage caused to the Tenant, subject to the
Landlord (or other person so entering) exercising the right
in a reasonable manner and making good any damage caused to
the Premises without unreasonable delay
3.8.2 On becoming aware of any defects in the Building, which are
"relevant defects" for the purposes of Section 4 of the
Defective Premises Act 1972, to give notice of them to the
Landlord
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3.9 ALTERATIONS
3.9.1 Not to make any alterations or additions to or affecting the
structure or exterior of the Premises, or the appearance of
the Premises as seen from the exterior
3.9.2 Not without the consent of the Landlord such consent not to
be unreasonably withheld or delayed to make any other
alterations or additions to the Premises (but the erection,
alteration or removal by the Tenant of internal demountable
partitioning, and consequential adjustments of ducting,
ceiling tiles, light fittings and wiring is authorized
without such consent if the plans of the partitions (or
details of the alteration or removal of partitioning) are
immediately deposited with the Landlord)
3.9.3 On the termination of this Lease, to the extent required by
the Landlord, to reinstate the Premises to the condition in
which they were in at the grant of this Lease, such
reinstatement to be carried out under the supervision and to
the reasonable satisfaction of the Landlord or the
Landlord's Surveyor
3.9.4 To procure that any alterations or additions to the Premises
permitted by the Landlord under Clause 3.9.2 be carried out
only by a contractor approved by the Landlord (such approval
not to be unreasonably withheld)
3.10 ALIENATION
3.10.1 Not to assign or charge or underlet part only of the
Premises.
3.10.2 Not to assign or charge the whole of this Lease without the
consent of the Landlord but, subject to the operation of the
following provisions of this clause 3.10.2, such consent is
not to be unreasonably withheld;
3.10.2.1 The Landlord may withhold its consent to the
application by the Tenant for licence to assign
this Lease:
3.10.2.1.1 if at the time of the assignment,
there are arrears of rents or other
monies due to the Landlord or the
Tenant has not
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substantially observed and performed
the covenants on the part of the
Tenant herein contained; or
3.10.2.1.2 unless the Tenant gives to the
Landlord a guarantee in the form in
Schedule 4; or
3.10.2.1.3 if the Tenant fails to demonstrate to
the satisfaction of the Landlord
(acting reasonably) that the proposed
assignee is responsible and
respectable and will be able to pay
the rent and meet the other outgoings
and liabilities arising under the
Lease; or
3.10.2.1.4 unless any proposed assignee covenants
by deed with the Landlord to pay the
rents reserved by this Lease and to
observe and perform all the covenants
on the part of the Lessee and
conditions in this Lease during the
Term until released by virtue of the
Landlord and Tenant (Covenants) Act
1995; or
3.10.2.1.5 unless (where it is reasonable so to
require) the proposed assignee is able
to procure (in addition to the
guarantee provided by the Tenant and
the Surety under the provisions of
clause 3.10.2.1.2) a guarantee of the
covenants of the assignee from a
guarantor who is reasonably acceptable
to the Landlord in the form in
Schedule 4; or
3.10.2.1.6 if it is otherwise reasonable to do so
3.10.2.2 The conditions and criteria in clause 3.10.2.1 are
specified for the purposes of Section 19 (1A) of
the Landlord and Tenant Act 1927
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3.10.3 Not to underlet the whole of the Premises without the
consent of the Landlord (such consent not to be unreasonably
withheld or delayed)
3.10.4 On the grant of an underlease, to obtain covenants by deed
from the underlesseee direct with the Landlord in such form
as the Landlord may require that the underlessee will:
3.10.4.1 not assign, sub-underlet or charge part only of
the premises underlet;
3.10.4.2 not part with or share possession or occupation of
the whole or any part of the premises underlet nor
grant to third parties rights over them otherwise
than by a permitted assignment or
sub-underletting;
3.10.4.3 not assign, charge or sub-underlet the whole of
the premises without obtaining the previous
consent of the Landlord under this Lease;
3.10.4.4 provide for the inclusion in any sub-underleases
granted out of the underlease (whether immediate
or mediate) of covenants to the same effect as
those contained in these clauses 3.10.4 and clause
3.10.5
3.10.5 On the grant of any underlease:-
3.10.5.1 to include provisions for the revision of the rent
reserved by the underlease in an upward only
direction to correspond in time and effect with
the provisions for the revision of rent in this
Lease;
3.10.5.2 not to reserve or take a premium or fine;
3.10.5.3 to reserve a rent which is the greater of the
market rent as at the time of the grant of the
underlease (assessed in accordance with the
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principles in Schedule 2) or the proportionate
part of the market rent of the Premises where only
part of the Premises is underlet (such part of the
market rent to be approved by the Landlord); and
3.10.5.4 to include such covenants of the underlessee as
are not inconsistent with or impair the due
performance and observance of the covenants of the
Tenant in this Lease
3.10.6 Not to underlet the whole or any part of the Premises
otherwise than by way of Unsecured Underletting
3.10.7 Not otherwise than by assignment or underletting permitted
under this clause 3.10 to:
3.10.7.1 part with or share possession or occupation of the
whole or any part of the Premises; or
3.10.7.2 grant to third parties any rights over the
Premises
3.10.8 The preceding provisions of this clause 3.10 do not apply to
any parting with possession or occupation or the sharing of
occupation or sub-division of the Premises to or with any
member of a group of companies of which the Tenant is itself
a member if:
3.10.8.1 the interest in the Premises so created is and
remains no more than a tenancy-at-will; and
3.10.8.2 the possession, occupation or subdivision are
immediately determined if the Tenant and the
relevant member cease for any reason whatsoever to
be members of the same group of companies;
and for this purpose two companies are members of a group
if, and only if, one is a subsidiary of the other or both
are subsidiaries of a third company, "subsidiary" having the
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meaning given to it by Section 736 of the Companies Act 1985
3.11 REGISTRATION OF DISPOSITIONS OF THIS LEASE
To produce to and leave with the Solicitors of the Landlord the
document effecting the disposition (and in each case a certified copy
for retention by the Landlord) within one month after any disposition
of this Lease or the Premises (a "disposition" being an assignment,
charge, transfer, underlease, assignment or surrender of any
underlease, or on any transmission by death or otherwise documentary
evidence of devolution affecting the Premises), and on each occasion
to pay to the Solicitors such fee as they may reasonably require for
the registration
3.12 ENFORCEMENT OF UNDERLEASES
3.1.2.1 Not without the consent of the Landlord to vary the terms,
or waive the benefit, of any covenant of the underlessee or
condition in an underlease of the Premises
3.12.2 Diligently to enforce the covenants of the underlessee and
the conditions in an underlease of the Premises
3.12.3 Not without the consent of the Landlord accept any sum or
payment in kind by way of commutation of the rent payable by
an underlessee of the Premises
3.13 USER
3.13.1 Not without the consent of the Landlord to use the Premises
other than as B1, B2 or B8 use
3.13.2 Nothing in this Lease implies or is to be treated as a
warranty to the effect that the use of the Premises for
those purposes is in compliance with all town planning laws
and regulations now or from time to time in force
3.14 RESTRICTIONS AFFECTING USE OF THE PREMISES
3.14.1 Not to erect nor install in the Premises any engine,
furnace, plant or machinery which causes noise fumes or
vibration which can be heard smelled or felt outside the
Premises
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3.14.2 Not to store in the Premises any petrol or other specially
inflammable explosive or combustible substance
3.14.3 Not to use the Premises for any noxious, noisy or offensive
trade or business or for any illegal or immoral act or
purpose
3.14.4 Not to hold any sales by auction on the Premises
3.14.5 Not to hold in or on the Premises any exhibition public
meeting or public entertainment
3.14.6 Not to permit any vocal or instrumental music in the
Premises so that it can be heard outside the Premises
3.14.7 Not to permit livestock of any kind to be kept on the
Premises
3.14.8 Not to do in the Premises which may be or grow to be a
nuisance, annoyance, disturbance, inconvenience or damage to
the Landlord or its other tenants of the Building or to the
owners tenants and occupiers of adjoining and neighbouring
properties
3.14.9 Not to load or use the floors, walls, ceilings, or structure
of the Premises so as to cause strain damage or interference
with the structural parts, loadbearing framework, roof,
foundations, joists and external walls of the Premises
3.14.10 Not to do or omit to do anything which may interfere with or
which imposes an additional loading on any ventilation,
heating, air conditioning or other plant or machinery
serving the Premises
3.14.11 Not to use the Premises as a betting shop or betting office
3.14.12 Not to use the Premises for the sale of alcoholic liquor for
consumption either on or off the Premises
3.14.13 Not to allow any person to sleep in the Premises nor to use
the Premises for residential purposes
3.14.14 Not at any time to place in the Common Parts any goods,
mats, trade empties, rubbish or other obstruction
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3.14.15 Not to accumulate trade empties upon the Premises
3.14.16 Not to place leave or install any articles merchandise goods
or other things in front of or elsewhere outside the
Premises
3.14.17 Not to permit the drains to be obstructed by oil grease or
other deleterious matter, but to keep thoroughly cleaned the
Premises and the drains serving the Premises as often as may
be necessary
3.14.18 Not to use any portion of the access roads or service area
for the parking of vehicles otherwise than during the course
of loading and unloading nor to carry out any repairs or
maintenance to vehicles on the access roads or service area
3.14.19 To observe and perform or cause to be observed and performed
the reasonable rules and regulations from time to time made
by the Landlord in connection with the orderly and proper
use of the Common Parts and the security of the Building and
the whole of the site in the Landlord's ownership at Cotton
Lane Derby
3.15 ADVERTISEMENTS AND SIGNS
3.15.1 Not to place of display on the exterior of the Premises or
on the windows or inside the Premises so as to be visible
from the exterior of the Premises any name, writing, notice,
sign, illuminated sign, display of lights, placard, poster,
sticker or advertisement other than:
3.15.1.1 a suitable sign of a size and kind first approved
by the Landlord or the Landlord's Surveyor showing
the Tenant's name and trade;
3.15.1.2 such other notices as the Landlord may in its
discretion approve; and
3.15.1.3 normal window displays sale notices and price
tickets attached and relating to the goods in the
Premises (but not affixed to the window glass);
3.15.1.4 the name of the Tenant signwritten on the
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entrance doors of the Premises in a style and
manner approved by the Landlord or the Landlord's
Surveyor; and
3.15.1.5 the name of the Tenant and any permitted
sub-tenants displayed in the indicator board in
the entrance lobby in the Building
3.15.2 If any name, writing, notice, sign, placard, poster, sticker
or advertisement is placed or displayed in breach of these
provisions, to permit the Landlord to enter the Premises and
remove such name, writing, notice, sign, placard, poster,
sticker or advertisement, and to pay to the Landlord on
demand the expenses of so doing
3.16 COMPLIANCE WITH STATUTES ETC.
3.16.1 Except where such liability may be expressly within the
Landlord's covenants in this Lease to comply in all respects
with the provisions of all statutes for the time being in
force and requirements of any competent authority relating
to the Premises or anything done in or upon them by the
Tenant, and to keep the Landlord indemnified against
liability in consequence of the Tenant's failure to comply
with them
3.16.2 In particular but without affecting the general operation of
clause 3.16.1
3.16.2.1 to execute all works and do all things on or in
respect of the Premises which are required under
the Offices Shops and Railway Premises Act 1963;
3.16.2.2 to comply with all requirements under any present
or future statute, order, by-law or regulation as
to the use or occupation of or otherwise
concerning the Premises;
3.16.2.3 to execute with all due diligence (commencing work
within two months or sooner if necessary
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and then proceeding continuously) all works to the
Premises for which the Tenant is liable in
accordance with this clause 3.16 and of which the
Landlord has given notice to the Tenant;
and, if the Tenant shall not comply with clause 3.16.2.3, to
permit the Landlord to enter the Premises to carry out such
works, and to indemnify the Landlord on demand for the
expenses of so doing (including surveyors' and other
professional advisers' fees), such expenses and any Interest
on them to be recoverable as if they were rent in arrear
3.17 PLANNING PERMISSIONS
3.17.1 Not without the consent of the Landlord to make any
application under the Town and Country Planning Acts, as
defined in the Town and Country Planning Act 1990, to any
local planning authority for permission to develop,
including change of use of, the Premises
3.17.2 To indemnify the Landlord against any development charges,
other charges and expenses payable in respect of such
applications and to reimburse to the Landlord the costs it
may properly incur in connection with such consent
3.17.3 To keep the Landlord indemnified against any expense
incurred in consequence of the use of the Premises reverting
to that existing before the application was made
3.17.4 Forthwith to give to the Landlord full particulars in
writing of the grant of planning permission
3.17.5 Not to implement any planning permission if the Landlord
makes reasonable objection to any of the conditions subject
to which it has been granted
3.18 COMPLIANCE WITH TOWN PLANNING AND ENVIRONMENTAL REQUIREMENTS
3.18.1 To perform and observe the requirements of statutes and
regulations relating to town and country planning and
environmental protection applying to the Premises, and to
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obtain any development or other consent permit or licence by
reason of the development or manner of use of or on the
Premises by the Tenant
3.18.2 To keep the Landlord indemnified against liability by reason
of the Tenant's failure to obtain any requisite development
or other consent permit or licence or in complying with the
requirements of statutes and regulations
3.18.3 To give full particulars to the Landlord of any notice, or
proposal for a notice, or order or proposal for an order,
made given or issued to the Tenant under any statute or
regulation relating to town and country planning,
environmental protection or otherwise within seven days
after the receipt of any such by the Tenant
3.18.4 Forthwith to take all reasonable and necessary steps to
comply with any such notice or order
3.18.5 At the request and cost of the Landlord, to make or join
with the Landlord in making such objections or
representations against or in respect of any proposal for
such notice or order as the Landlord may consider expedient
3.19 CLAIMS BY THIRD PARTIES
3.19.1 To keep the Landlord indemnified against liability in
respect of any accident, loss or damage to person or
property in the Premises
3.19.2 To keep the Landlord indemnified against liability of the
Landlord to third parties by reason of breach by the Tenant
of its obligations in this Lease
3.20 EXPENSES OF LANDLORD
To pay to the Landlord on demand all expenses (including solicitors' costs,
bailiffs' fees and surveyors' and architects' fees) incurred by the
Landlord:-
3.20.1 incidental to or in proper contemplation of the preparation
and service of a schedule of dilapidations during or after
the
19
termination of this Lease and/or a notice under Section 146
and 147 of the Law of Property Act 1925, even if forfeiture
is avoided otherwise than by relief granted by the Court;
3.20.2 in connection with or procuring the remedying of any breach
of covenant on the part of the Tenant contained in this
Lease including (without limitation) the recovery or
attempted recovery of arrears of rent or additional rent due
from the Tenant; and
3.20.3 in connection with every application for any consent or
approval made under this Lease whether or not consent or
approval is given
3.21 OBSTRUCTION OF WINDOWS OR LIGHTS AND EASEMENTS
3.21.1 Not to stop up or obstruct any windows of the Premises or
any other buildings belonging to the Landlord
3.21.2 Not to permit any easement or similar right to be made or
acquired into against or on the Premises
3.21.3 Where any such easement or right is or is attempted to be
acquired, immediately to give notice of the circumstances to
the Landlord, and at the request and cost of the Landlord to
adopt such course as it may reasonably require for
preventing the acquisition of the easement or right to such
easement
3.22 CLEANING AND INSURANCE OF WINDOWS
3.22.1 To keep clean the glass in the windows of the Premises
3.22.2 To keep insured the glass in the windows of the Premises in
the joint names of the Landlord and the Tenant in a sum
equal to the full replacement cost against damage with an
insurer of repute approved by the Landlord; and
3.22.3 To lay out the monies received in respect of such insurance
in replacement with glass of at least the same quality and
thickness as before, and to make good any deficiency out of
the Tenant's own resources
20
3.23 VALUE ADDED TAX
3.23.1 To pay value added tax on taxable supplies of goods and
services made by the Landlord in connection with this Lease,
the consideration for which is to be treated as exclusive of
value added tax chargeable on the payment
3.23.2 Where the Landlord is entitled under this Lease to recover
from the Tenant the costs of goods and services supplied to
the Landlord, but in respect of which the Landlord makes no
taxable supply to the Tenant, to indemnify the Landlord
against so much of the input tax on the cost for which the
Landlord is not entitled to credit allowance under Section
26 of the Value Added Tax Act 1994
3.24 NOTICE "TO-LET" AND "FOR SALE"
3.24.1 To allow the Landlord or its agents to enter on the Premises
at any time:
3.24.1.1 within six months next before the termination of
this Lease to fix on the Premises a notice board
for reletting the Premises; and
3.24.1.2 to fix on some part of the Premises a notice board
for the sale of the interest of the Landlord
3.24.2 Not to remove or obscure any such notice board
3.24.3 To permit all persons authorised by the Landlord or its
agents to view the Premises at reasonable hours without
interruption in connection with any such letting or sale
4 PROVISOS
THE PARTIES AGREE to the following provisos:-
4.1 PROVISO FOR RE-ENTRY
4.1.1 The Landlord may terminate this Lease by re-entering the
Premises (or a part of them) itself or by an authorised
agent if:
4.1.1.1 any rent remains unpaid twenty one days after
becoming due for payment (whether or not formally
demanded); or
21
4.1.1.2 the Tenant fails to perform or observe any of its
covenants or the conditions in this Lease or
allows any distress or execution to be levied its
goods, or
4.1.1.3 an event of insolvency occurs in relation to the
Tenant or one of the Tenants or any guarantor of
the Tenant or one of the Tenants
4.1.2 Re-entry in exercise of the rights in clause 4.1.1 does not
affect any other right or remedy of the Landlord for breach
of covenant or condition by the Tenant occurring before the
termination of this Lease
4.1.3 The expression "an event of insolvency" in clause 4.1.1.
includes:
4.1.3.1 (in relation to a company or other corporation
which is the Tenant or one of the Tenants or a
guarantor) inability of the company to pay its
debts, entry into liquidation either compulsory or
voluntary (except for the purpose of amalgamation
or reconstruction), the passing of a resolution
for a creditors winding up, the making of a
proposal to the company and its creditors for a
composition in satisfaction of its debts or a
scheme of arrangement of its affairs, the
application to the court for an administration
order, and the appointment of a receiver or
administrative receiver; and
4.1.3.2 (in relation to an individual who is the Tenant
or a guarantor) inability to pay or having no
reasonable prospect of being able to pay his
debts, the presentation of a bankruptcy petition,
the making of a proposal to his creditors for a
composition in satisfaction of his debts or a
22
scheme of an arrangement of his affairs, the
application to the court for an interim order, and
the appointment of a receiver or interim receiver;
and in relation to the various events of
insolvency they are, wherever appropriate, to be
interpreted in accordance and conjunction with the
relevant provisions of the Insolvency Act 1986
4.2 POWER FOR THE LANDLORD TO DEAL WITH ADJOINING PROPERTY
4.2.1 The Landlord may deal as it thinks fit with other property
adjoining or nearby belonging to the Landlord, and may erect
or permit to be erected on such property any buildings
irrespective of whether they affect or diminish the light or
air which may now or at any time be enjoyed by the Tenant in
respect of the Premises
4.2.2 The Landlord may at all times, without obtaining any consent
from or making any arrangement with the Tenant, alter
reconstruct or modify in any way whatsoever or change the
use of the Common Parts so long as proper means of access to
and egress from the Premises are afforded and essential
services are maintained at all times
4.3. ARBITRATION OF DISPUTES BETWEEN TENANTS
If any dispute or disagreement at any time arises between the Tenant and
the tenants and occupiers of the Building or any adjoining or neighbouring
property belonging to the Landlord relating to the Conducting Media serving
or easements or rights affecting the Premises the Building or any adjoining
or neighbouring property, the dispute or disagreement is to be determined
by the Landlord by which determination the Tenant is to be bound
4.4 EXEMPTION FROM LIABILITY IN RESPECT OF SERVICES
4.4.1 The Landlord is not to be liable to the Tenant for any loss
damage or inconvenience which may be caused by reason of:-
4.4.1.1 temporary interruption of services during periods
of inspection maintenance repair and renewal;
23
4.4.1.2 breakdown of or defect in any plant and machinery
services or Conducting Media in the Premises the
Building or neighbouring or adjoining property; or
4.4.1.3 events beyond the reasonable control of the
Landlord
4.4.2 The Landlord's duty of care to the Tenant's employees agents
workpeople and visitors in or about the Building does not go
beyond the obligations involved in the common duty of care
(within the meaning of the Occupiers Liability Act 1957) or
the duties imposed by the Defective Premises Act 1972
4.5 ACCIDENTS
The Landlord is not to be responsible to the Tenant or the Tenant's
licensees nor to any other person for any:-
4.5.1 accident happening or injury suffered in the Premises; or
4.5.2 damage to or loss of any goods or property sustained in the
Building (whether or not due to any failure of any security
system for which the Landlord is in any way responsible); or
4.5.3 act omission or negligence of any employee of the Landlord
in the Building
4.6 COMPENSATION FOR DISTURBANCE
The Tenant is not entitled on quitting the Premises to claim from the
Landlord any compensation unless and to the extent that any statutory right
to compensation precludes the operation of this clause
4.7 REMOVAL OF PROPERTY AFTER DETERMINATION OF TERM
4.7.1 If after the Tenant has vacated the Premises following the
termination of this Lease any property of the Tenant remains
in the Premises, and the Tenant fails to remove it within
fourteen days after being requested in writing by the
Landlord
24
to do so, the Landlord may as the agent of the Tenant sell
such property and hold the proceeds of sale, after deducting
the costs and expenses of removal storage and sale
reasonably and properly incurred by it, to the order of the
Tenant
4.7.2 The Tenant will indemnify the Landlord against any liability
incurred by it to any third party whose property has been
sold by the Landlord in the bona fide mistaken belief (which
is to be presumed unless the contrary be proved) that it
belonged to the Tenant and was liable to be dealt with as
such under this clause 4.7
4.8 NOTICES, CONSENT AND APPROVALS
4.8.1 Any notice served under or in connection with this Lease is
to be in writing and be treated as properly served if
compliance is made with either the provisions of Section 196
of the Law of Property Act 1925 (as amended by the Recorded
Delivery Service Act 1962) or Section 23 of the Landlord and
Tenant Act 1927
4.8.2 Any consent or approval under this Lease is required to be
obtained before the act or event to which it applies is
carried out or done and is to be effective only if the
consent or approval is given in writing
4.9 Indemnify the Tenant in respect of any contamination or other
environmental issues arising which are not applicable to or relevant
to the Tenant's authorised use of the premises to remove any such
materials from the site at the Landlord's own expense provided that
the Tenant shall immediately inform the Landlord of the discovery of
any such matter
25
5 LANDLORDS COVENANTS
THE LANDLORD COVENANTS with the Tenant as follows:-
5.1 QUIET ENJOYMENT
The Tenant, paying the rents reserved and performing the Tenant's
covenants in this Lease, may lawfully and peaceably enjoy the Premises
throughout the Term without interruption by the Landlord or by any
person lawfully claiming through under or in trust for the Landlord
5.2 To keep in good repair and maintain rebuild and renew the Conducting
Media the Building the Common Parts and those parts of the Premises
for which the Tenant is not responsible for
5.3 To complete the works set out in the attached schedule of works,
signed by the parties by no later than the ________ day of
_________________ 1998 and in any event as soon as practicable to the
reasonable satisfaction of the Tenant and in a good and workmanlike
manner. The Tenant shall be deemed to have accepted that the works set
out in the attached schedule have been satisfactorily completed if the
Tenant shall take up occupation of the whole or any part thereof. In
the event of there being any dispute between the parties as to whether
the works shall have been completed to the satisfaction of the Tenant
(and the Tenant shall not have taken up occupation of the whole or any
part of the premises comprised in the works), the matter shall be
referred to determination in accordance with clause 8 hereof
6 OBLIGATIONS IN SCHEDULES TO THIS LEASE
The Landlord and the Tenant mutually covenant to observe and perform their
respective obligations and the conditions in the Schedules
7 EXPERT DETERMINATION
7.1 In this Lease, where any issue is required to be dealt with by, or
submitted for the determination of, an independent expert, the
following provisions of this clause are to apply but, in case of
conflict with other provisions specifically relating to expert
determination
26
elsewhere in this Lease, those other provisions are to prevail to the
extent of the conflict
7.2 The expert is to be appointed by the parties jointly, or if they
cannot or do not agree on the appointment, appointed by whichever of
the following is appropriate:
7.2.1 the President for the time being of the Royal Institution of
Chartered Surveyors;
7.2.2 the President for the time being of the Institute of
Chartered Accountants in England and Wales
or in each such case the duly appointed deputy of the president or
other person authorised by him to make appointments on his behalf;
7.3 the person so appointed is to act as an expert, and not as an
arbitrator;
7.4 the expert so appointed must afford the parties opportunity within
such a reasonable time limit as he may stipulate to make
representations to him (accompanied by professional rental valuations,
reports or other appropriate evidence in the relevant circumstances)
and permit each party to make submissions on the representations of
the other; and
7.5 the fees and expenses of the expert, including the cost of his
nomination, are to be borne as the expert may direct (but in the
absence of such a direction - by the parties in equal shares), but
(unless they otherwise agree) the parties will bear their own costs
with respect to the determination of the issue by the expert
7.6 If the expert refuses to act, becomes incapable of acting, or dies,
the Landlord or the Tenant may require the appointment of another
expert in this stead under paragraph 8.2
7.7 The determination of the independent expert, except in case of
manifest error, is to be binding on the Landlord and the Tenant
8 LEGAL FEES
Each party will pay its own legal costs and stamp duty on the Lease
9 STAMP DUTY CERTIFICATE
It is certified that there is no agreement to which this Lease gives effect
27
10 COVENANT STATUS OF THIS LEASE
This Lease is a new tenancy within the meaning of Section 1 of the Landlord
and Tenant (Covenants) Act 1995
DELIVERED as a Deed on the date at the head of this Lease
11. BREAK CLAUSE
The Tenant may on giving not less than six months' notice in writing to the
Landlord determine this Lease and the term hereby granted on the second
anniversary of the term provided it has paid the rent due up to such second
anniversary and without prejudice to the right of either party to take
action against the other in respect of antecedent breaches of covenant or
obligation
28
SCHEDULE 1
PART 1 DESCRIPTION OF THE PREMISES
ALL THAT Warehouse and offices known as Unit 6 Eastside Park, East Service Road,
Raynesway, Derby including the right to use the car parking areas on the plan.
PART 2 RIGHTS ENJOYED WITH DEMISE
1. The rights of ingress to and egress from the Premises in over and along all
usual entrances staircases landings lifts and passageways leading thereto
in part shown coloured brown on the plan annexed hereto in common with the
Landlord and all other persons so authorised by the Landlord and all other
persons entitled thereto
2. The right of free passage and running of water soil gas electricity
telephone and other services in and through the Conducting Media made or to
be made upon or through or under any part of the Building or upon through
or under any adjacent land or buildings of the Landlord all such rights to
be so far as necessary for the enjoyment of the Premises and in common with
the Landlord and all others so authorised by the Landlord and all other
persons entitled thereto
3. The right for the Tenant and all other persons authorised by the Tenant to
enter upon the other parts of the Building and upon the said adjoining land
and buildings of the Landlord (giving reasonable prior notice and in an
emergency without notice) so far as may be reasonably necessary for the
purpose of inspecting maintaining repairing and renewing and/or making
connections with the Conducting Media
4. The right for the Tenant and the Tenant's employees servants agents
customers and clients and contractors in the event of emergency only to use
the fire escapes and emergency exits (if any) serving the Premises and any
adjoining or adjacent parts of the Building and pass through any such
adjoining or adjacent parts of the Building for the purpose of egress from
the Premises in the event of emergency
5. The right of support and protection for the benefit of the Premises as is
now enjoyed by the Premises from the adjoining parts of the Building
29
PART 3 EXCEPTIONS AND RESERVATIONS
1. The free passage and running of water soil gas electricity telephone and
other services from and to other parts of the Building and from and to any
adjoining buildings or land of the Landlord in and through the Conducting
Media now or at any time during the Term laid made or to be laid and made
in upon through or under the Premises
2. The right to construct and to maintain in over or under the Premises any
easements or services for the benefit of any part of the Building or any
adjoining property or buildings of the Landlord
3. The right at any time during the term (but except in cases of emergency
only at reasonable times during normal business hours after giving
reasonable prior notice to the Tenant and by prior appointment except where
the Tenant unreasonably refuses to make an appointment within a reasonable
time of the request from the Landlord) to enter (or in the cases of
emergency to break and enter) upon the Premises in order:
(a) To inspect cleanse repair mend remove or replace with others the
Conducting Media referred to above
(b) To inspect and execute works in connection with any of the easements
or services referred to in this Schedule
(c) To view the state and condition of and to repair and maintain the
Building or any part of the Building and any adjoining buildings or
land of the Landlord where such work would not otherwise be reasonably
practicable
(d) To carry out work or do anything whatsoever comprised within the
Landlord's obligations herein contained whether or not the Tenant is
liable hereunder to make a contribution
(e) To exercise any of the rights possessed by the Landlord under the
terms of this Lease
4. The right to erect scaffolding for the purpose of repairing or cleaning the
exterior of the Building or the adjoining land or buildings of the Landlord
notwithstanding that such scaffolding may temporarily interfere with the
access to or enjoyment and user of the Premises provided that such
interference is for
30
the minimum reasonable period and that access to the Premises is not
significantly curtailed thereby
5. The rights of light air support shelter and all other easements and rights
now or hereafter belonging to or enjoyed by all adjacent or neighbouring
land and those parts of the Building not hereby demised any interest
wherein in possession or reversion is at any time during the term vested in
the Landlord
6. Full right and liberty at any time hereafter and from time to time to
execute works and erections upon or to alter or rebuild any of the
buildings erected on the Landlord's adjoining and neighbouring land or
other parts of the Building and to use such adjoining and neighbouring
lands and buildings and the other parts of the Building in such manner as
it shall think fit notwithstanding that the access of light and air to the
Premises may thereby be interfered with PROVIDED that in exercising the
foregoing rights the Landlord shall cause as little interference as
possible to the Premises and the business of the Tenant and shall forthwith
make good any damage caused to the Premises by the exercise of the said
rights
SCHEDULE 2
RENT REVIEWS
1 THE REVIEW DATES
The yearly rent payable under this Lease is to be reviewed on the expiry of the
third year of the Term (referred to in this Schedule as "the review dates" and
with effect on and from the review date the reviewed rent (as agreed or
determined in accordance with this Schedule) is to become payable as the yearly
rent reserved by this Lease
2 UPWARD ONLY RENT REVIEWS
The reviewed rent is to be the greater of:
2.1 the yearly rent reserved under this Lease immediately preceding the
review date; and
2.2 the market rent of the Premises at the review date
3 THE MARKET RENT
For the purposes of this Lease, the expression "market rent" means the best
31
yearly rent at which the Premises might reasonably be expected to be let in the
open market by a willing landlord to a willing tenant:
3.1 with vacant possession
3.2 for a term of six years from the review date having a rent review, in
the same terms as this Lease, at the expiry of each period of three
years throughout the term;
3.3 without the payment of a premium by a willing tenant;
3.4 subject to the provisions of this Lease, other than the length of the
term and the amount of rent, but including these provisions for rent
review;
3.5 the Premises have an area of approximately (4000) square feet
3.6 the Premises have been fitted out ready for occupation and immediate
use for the willing tenant's business so that the willing tenant would
not require a rent or other allowance at the review date for that
purpose (but this assumption does not affect the operation of
paragraph 4.3);
3.7 in case the Premises have been destroyed or damaged (or unfit for use
and occupation by reason of damage to the Building) they have been
fully reinstated (or rendered fit for use and occupation);
3.8 the covenants of the Tenant have been fully observed and performed;
3.9 there is not in operation any statute order or instrument regulation
or direction which has the effect of regulating or restricting the
amount of rent of the Premises which might otherwise be payable;
3.10 the Premises may be lawfully used throughout the Term as workshop and
office premises within B1 B2 and B8 of the Town and Country (Use
Classes) Order 1987 (and any actual restriction or qualification which
may be imposed on such use by the terms of the user covenant in clause
3 or otherwise is to be disregarded) and that no capital is required
to be expended
32
upon the Premises to enable them to be so used; and
3.11 the Tenant and anyone who may become the Tenant is a taxable person
who makes only taxable supplies and no exempt supplies (words and
expressions used in this paragraph 3.11 having the meanings assigned
to them respectively in the Value Added Tax Act 1994 and the
regulations made under that Act) and that demand for the Premises on
the open market would not be reduced by reason of the Landlord having
elected to waive exemption from value added tax in respect of them
4 MATTERS TO BE DISREGARDED
In agreeing or determining the market rent the effect upon it of the following
matters are to be disregarded:
4.1 the occupation of the Premises by the Tenant
4.2 any goodwill attached to the Premises by reason of the carrying on at
the Premises of the business of the Tenant;
4.3 any improvements to the Premises made by the Tenant with the consent
of the Landlord other than those:
4.3.1 made in pursuance of an obligation to the Landlord;
4.3.2 completed by the Tenant more than twenty one years before
the review date; or
4.3.3 for which the Landlord has made a financial contribution;
and
4.4 any works carried out by the Tenant which has diminished the market
rent
and in this paragraph 4 reference to "the Tenant" include predecessors in
title to the Tenant, and sub-tenants of the Tenant or of the predecessors
in title of the Tenant
5 PROCEDURE FOR DETERMINATION OF MARKET RENT
5.1 The Landlord and the Tenant are to endeavour to agree the market rent
at any time not being earlier than twelve months before the review
date, but if they have not agreed the market rent three months before
the review date the amount of the
33
Market rent is to be determined by reference to the determination of
an independent expert
5.2 The expert is to be nominated by the Landlord and the Tenant jointly,
but, if they cannot or do not do so, then he is to be nominated by the
President for the time being of the Royal Institution of Chartered
Surveyors on the application either of the Landlord or of the Tenant
5.3 The expert nominated must be a chartered surveyor having not less than
ten years' experience of leasehold valuation of property being put to
the same or similar use as the Premises and of the property in the
same region in which the Premises are situated
6 TIME LIMITS
Time is not of the essense in agreeing or determining the reviewed rent or of
appointing an expert.
7 RENTAL ADJUSTMENTS
7.1 If the market rent has not been agreed or determined in accordance
with the provisions of this Schedule before the review date, then,
until the market rent has been so agreed or determined, the Tenant
will continue to pay on account rent at the rate of yearly rent
payable immediately before the review date
7.2 The Tenant will pay to the Landlord within seven days after the time
that the market rent has been agreed or determined all arrears of the
reviewed rent which have accrued in the meantime, with interest equal
to the base rate of Midland Bank Plc on each of the instalments of the
arrears from the time that it would have become due if the market rent
had then been agreed or determined until payment becomes due from the
Tenant to the Landlord under this paragraph 7.2
8 REVIEWED RENT RESERVED IN PHASES
The Landlord and the Tenant may, at any time before the market rent is
34
determined by an expert settle the reviewed rent in more than one amount and
agree to reserve the amounts increasing in phases until the next review date or,
if none, the expiry of the Term
9 MEMORANDUM OF RENT REVIEW
The parties will cause a memorandum of the reviewed rent duly signed by the
Landlord and the Tenant to be endorsed on or securely annexed to this Lease and
the counterpart of this Lease
35
SCHEDULE 3
INSURANCE PROVISIONS
1 INSURED RISKS
1.1 "Insured Risks" means the risks and other contingencies against which
the Premises and the Building are required to be, or which may from
time to time be, insured under this Lease, but subject to any
exclusions limitations and conditions in the policy of insurance
1.2 Insured Risks include, without limitation, fire, lightning, explosion,
storm, tempest, flood, bursting and overflowing of water tanks
apparatus or pipes, earthquake, aircraft (but not hostile aircraft)
and other aerial devices dropped from aircraft, riot and civil
commotion, malicious damage and such other risks as the Landlord may
consider it prudent to insure
1.3 If a risk or contingency itemized, or otherwise included, as an
Insured Risk, can no longer be insured or can only be insured at an
uneconomic rate, the risk or contingency shall cease to be treated as
an Insured Risk from the time that cover is withdrawn and the Landlord
has notified the Tenant of its withdrawal
2 TENANT'S LIABILITY FOR INSURANCE PREMIUMS
2.1 The Tenant will pay to the Landlord on demand the due proportion of
the insurance premiums incurred by the Landlord
2.2 Insurance premiums are to include all monies expended, or required to
be expended, by the Landlord in effecting and maintaining cover
against:
2.2.1 Insured Risks;
2.2.2 three years' loss of rent insurance;
2.2.3 such professional fees as may be incurred in connection with
rebuilding or reinstatement of the Building;
2.2.4 the costs of demolition, shoring up, and site clearance
works;
36
2.2.5 third party and public liability risks; and
2.2.6 value added tax liability on such items
2.3 The insurance cover may take into account cover for the effects of
inflation and escalation of costs and fees, and the Landlord's
estimate of the market rent of the Premises as defined in Schedule 2
in the context of ensuing rent reviews and the termination of the
Lease
2.4 The due proportion of the insurance premiums for which the Tenant is
liable is to be such proportion of the premiums incurred with respect
to the Building as may fairly be attributed to the Premises by the
Landlord or the Landlord's surveyor, and the apportionment may as
appropriate take into account:
2.4.1 the net internal area (as defined in the Measuring Code) of
the Premises relative to the aggregate net internal areas in
the Building during the Term;
2.4.2 the different uses to which the various parts of the
Building are put and the degree of special risk associated
with those uses;
2.4.3 the cost of complying with requirements of the insurer;
2.4.4 an increase in the insurance premiums or expense of renewal
resulting from any act or omission of the Tenant or any
person occupying or enjoying the use of the Premises through
or under the Tenant;
2.4.5 risks and contingencies that apply only to the Tenant; and
2.4.6 such other matters as may properly affect the apportionment
of insurance premiums between the various tenants and
occupiers of the Building;
and the apportionment may where appropriate attribute the whole of a
premium, or an increase in premium to the Tenant, and the decision of
the Landlord or the Landlord's surveyor acting fairly in making
apportionments is (except in the case of
37
manifest error) to be conclusive
In this Schedule "due proportion" is to be interpreted accordingly
3 TENANT'S OBLIGATIONS IN RELATION TO INSURANCE COVER
3.1 The Tenant will not do anything which may render void or voidable the
insurance of the Landlord on the whole or a part of the Building or
which may cause insurance premiums to be increased
3.2 The Tenant will provide efficient fire extinguishers of a type
approved by the Landlord, and will adopt such other precautions
against Insured Risks as the Landlord or its insurers may consider
appropriate
3.3 If the insurance of the Landlord is vitiated in whole or in part in
consequence of an act or omission of the Tenant, persons occupying or
enjoying the use of the Premises through or under the Tenant, or their
respective employees workmen agents or visitors, the Tenant will pay
to the Landlord on demand a sum equal to the amount of the insurance
monies which have become irrecoverable in consequence of that act or
omission
3.4 The Tenant may not insure the Premises for any of the Insured Risks in
such a manner as would permit the insurer of the Landlord to average
the proceeds of insurance, cancel insurance cover, or withhold
insurance monies
3.5 The Tenant will notify the Landlord forthwith of the occurrence of
damage to the Premises by any of the Insured Risks
3.6 If the Building is damaged by Insured Risks, the Tenant will pay to
the Landlord on demand the due proportion of the amount of any
uninsured excess to which the insurance cover of the Landlord is
subject.
3.7 The obligations of the Tenant to repair and to yield up in repair the
Premises are to remain operative to the extent that the insurance of
the Landlord in respect of Insured Risks is vitiated
38
or insurance monies are withheld by reason of an act or omission of
the Tenant, persons occupying or enjoying the use of the Premises
through or under the Tenant, or their respective employees workmen
agents or visitors, but do not otherwise operate in respect of damage
to the Premises by Insured Risks
4 LANDLORD'S OBLIGATION TO INSURE AND REINSTATE
4.1 The Landlord will keep the Building insured with an insurer of repute
against Insured Risks and other items referred to in paragraph 2.2 for
the full cost of reinstatement, subject to such uninsured excess as
the insurer may reasonably apply
4.2 Following the occurrence of damage to or destruction of the Building
by an Insured Risk, the Landlord will diligently apply, or procure the
application of, the proceeds of the insurance covering reinstatement
and rebuilding costs for those purposes, and will make good any
deficiency in the proceeds of the insurance out of its own resources
4.3 The obligations of the Landlord in paragraph 4.2 do not apply:
4.3.1 if the Landlord is unable, after using its reasonable
endeavours to do so, to obtain any requisite planning
permission or other consents for the reinstatement or
rebuilding of the Building or of a building of similar size
character and amenity; or
4.3.2 if the Landlord's insurance is vitiated by reason of an act
or omission of the Tenant, persons occupying or enjoying the
use of the Premises through or under the Tenant, or their
respective employees workmen agents or visitors
4.4 Where the Building is substantially damaged or destroyed, the Tenant
may not object to the reinstatement or rebuilding of the Building in a
form which is not identical to the Building immediately before the
damage or destruction occurred if the
39
Building as reinstated or rebuilt is of equivalent or better standard,
and affords amenities which are not inferior to or deficient from
those enjoyed by the Tenant before the occurrence of the damage or
destruction
5 LANDLORD'S OBLIGATIONS IN RELATION TO INSURANCE
5.1 The Landlord will use its reasonable endeavours to procure that its
insurers waive entitlement to rights of subrogation against the
Tenant, persons occupying or enjoying the use of the Premises through
or under the Landlord, and their respective employees workmen agents
or visitors
5.2 The Landlord will notify its insurers of the Tenant's interest in the
Premises and, if practicable, have it noted on the policies of
insurance
5.3 The Landlord will provide the Tenant with a copy of its insurance
policies (or other evidence of the conditions of insurance) on the
Building, and at the request of the Tenant with a receipt for the
payment of the last premium or other evidence of renewal and
up-to-date details of the amount of cover
5.4 The Landlord will promptly notify the Tenant of any changes in its
insurance cover or of the terms on which cover has been effected
5.5 The Landlord may retain for its exclusive benefit any discount on the
insurance premiums or commission offered to it by its insurer
6 SUSPENSION OF RENT
6.1 Paragraph 6.2 applies if the Building or any part of it is at any time
during the Term so damaged by an Insured Risk as to render the
Premises or any part of them unfit for occupation use or enjoyment,
except in the circumstances referred to in paragraph 4.3.2
6.2 The rent and additional rent reserved by this Lease, or a fair
40
proportion of them according to the nature and extent of the damage
sustained, is to be suspended and cease to be payable until the
Premises (excluding fitting out works and replacement of contents)
have been reinstated and made fit for occupation use and enjoyment or,
if earlier, until the expiry of three years from the occurrence of the
damage
6.3 A dispute as to the amount of the abatement of the rent or the
duration of the period of abatement is to be submitted to a single
arbitrator, by whose decision the parties are to be bound, who is to
be appointed by the parties jointly if they can agree on one, but if
they do not agree, then by the President for the time being of the
Royal Institution of Chartered Surveyors at the request of either
party, and the arbitration is to be conducted under the Arbitration
Acts 1950 - 1979
7 OPTIONS TO DETERMINE
7.1 If the Building or a substantial part of it (whether or not directly
affecting the Premises) is destroyed or damaged by an Insured Risk so
as to make continued use of the Premises impracticable, the Landlord
may terminate this Lease by giving to the Tenant notice to that effect
at any time within 12 months after the occurrence of the damage
7.2 If for any reason beyond the control of the Landlord it proves
impossible to commence rebuilding or reinstatement of the Building
within two years of the occurrence of the damage by an Insured Risk,
the Landlord may terminate this Lease by giving to the Tenant notice
to that effect
7.3 If the rebuilding or reinstatement of the Building has not been
commenced two years after the occurrence of the damage by an Insured
Risk, the Tenant may give notice to the Landlord of intention to
terminate this Lease, and if the rebuilding or reinstatement work has
not commenced in earnest within six months of the giving of the
notice, this Lease is to terminate at
41
the expiry of the notice
7.4 The termination of this Lease under this paragraph 7 is not to affect
any liability which has accrued at any time before the time of
termination
8 RETENTION OF INSURANCE PROCEEDS
On the termination of this Lease under paragraph 7, or if this Lease is
terminated by the operation of the doctrine of frustration, the Landlord may
retain for its exclusive benefit the proceeds of insurance
SCHEDULE 4
FORM OF GUARANTEE ON ASSIGNMENT UNDER CLAUSE 3.10.2
1 GUARANTEE
1.1 The Guarantor[s] [jointly and severally] guarantee[s] to the Landlord
that the Tenant will pay the rents reserved by and perform and observe
all the Tenant's covenants in this Lease throughout the Term and any
extension by statute of the tenancy created by this Lease and the
Guarantor[s] will pay and make good to the Landlord on demand any
losses damages costs and expenses suffered or incurred by the Landlord
by reason of any failure of the Tenant to do so
1.2 This guarantee is to take effect immediately on the assignment of the
Lease to the Tenant and is to remain in force for so long as and to
the extent that the Tenant is not released by law from liability for
the Tenant's covenants in this Lease
1.3 In the context of these guarantee provisions, references to the Tenant
are to the assignee only (in its capacity as Tenant) with respect to
whom this guarantee is given
2 NO WAIVER OR RELEASE OF LIABILITY
The Guarantor[s] is not to be released from liability under these provisions by
reason of:-
2.1 any forbearance the granting of any time or any other indulgence on
the part of the Landlord, including (but without affecting the general
operation of this paragraph 2) any
42
granting or extension of time under or varying the procedure set out
in Schedule 2, paragraph 5; or
2.2 any variation of this Lease, whether or not made with the consent of
the Guarantor[s], and the guarantee of the Guarantor[s] in paragraph 1
is to operate in relation to this Lease as it may be varied from time
to time
3 GUARANTOR[S] TO ACCEPT NEW LEASE UPON DISCLAIMER
3.1 If this Lease is determined by re-entry by the Landlord or is
effectively determined by disclaimer, the Guarantor[s] shall, if the
Landlord by notice in writing within three months after the date of
determination so requires take from the Landlord a lease of the
Premises
3.2 The lease to be granted to the Guarantor[s] under paragraph 3.1 is to
be on the following terms:
3.2.1 the term is to commence on the date of termination of this
Lease and to be equal to the residue of the Term which would
have remained unexpired at the date of this Lease had not
then been terminated;
3.2.2 the yearly rent is to be the same as would have been payable
under this Lease if it had continued and, if a rent review
operative from a review date before the grant of the lease
has not been completed, the Guarantor[s] will complete the
rent review as if it had been the Tenant under this Lease;
3.2.3 the lease is otherwise to be on the same terms and
conditions as would have applied under this Lease if it had
continued undetermined; and
3.2.4 the Guarantor[s] [is] [are] to succeed to the rights and
assume the liability of the Tenant under this Lease as if
the Lease had continued undetermined
4 SUBORDINATION OF RIGHTS OF THE GUARANTOR[S]
4.1 With respect to any sums paid by the Guarantor[s] under this
43
Schedule and to any other rights which may accrue to the Guarantor[s]
in respect of any sums so paid or liabilities incurred under this
guarantee or in the observance performance or discharge of the
obligations and covenants of the Tenant in this Lease, the
Guarantor[s] shall rank and be entitled to enforce its rights only
after all obligations and covenants under this guarantee have been
fully observed and performed, and if they have not the Guarantor[s]
shall not:
4.1.1 seek to recover from the Tenant, or any third party whether
directly or by way of set-off lien counterclaim or otherwise
or accept any money or other property or security or
exercise any rights in respect of any sum which may be or
become due to the Guarantor[s] on account of the failure by
the Tenant to observe and perform or discharge such
obligations or covenants in this Lease;
4.1.2 claim, prove or accept any payment in composition by way of
winding-up, liquidation, bankruptcy or other form of
insolvency of the Tenant in competition with the Landlord
for any amount whatsoever owing to the Guarantor[s] by the
Tenant; nor
4.1.3 exercise any right or remedy in respect of any amount paid
by the Guarantor[s] under this Lease or any liability
incurred by the Guarantor[s] in observing, performing or
discharging the obligations and covenants of the Tenant
4.2 The Guarantor[s] warrant[s] that it has not taken, and undertakes with
the Landlord that it will not without the consent of the Landlord;
4.2.1 take any security from the Tenant in respect of this
guarantee and, if any such security is so taken
notwithstanding, it shall be held on trust for the Landlord
as security for the respective
44
liabilities of the Guarantor[s] and the Tenant; nor
4.2.2 be entitled to any right of proof in the bankruptcy,
liquidation or other form of insolvency of the Tenant or
exercise any other right of the Guarantor[s] discharging his
liability in respect of such obligations and covenants
THE COMMON SEAL OF IVYGROVE
DEVELOPMENTS LIMITED was hereunto affixed in
the presence of:-
/s/ illegible
---------------------------
Director
/s/ illegible
---------------------------
Secretary
THE COMMON SEAL OF
was hereunto affixed in the
presence of:-
/s/ illegible
---------------------------
Director
/s/ illegible
---------------------------
Secretary
45
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