DATED 24th October 1996
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99 BISHOPSGATE LIMITED
and
99 BISHOPSGATE MANAGEMENT LIMITED
and
HAMMERSON U.K. PROPERTIES PLC
and
DONALDSON, LUFKIN & JENRETTE
INTERNATIONAL LIMITED
and
DONALDSON, LUFKIN & JENRETTE, INC.
------------------------------------------------------------
UNDERLEASE
of
Twenty-sixth Floor 99 Bishopsgate London EC2
------------------------------------------------------------
HERBERT SMITH
Exchange House
Primrose Street
London EC2A 2HS
Tel: 0171-374 8000
Fax: 0171-496 0043
Ref: 129/P17/30608932
TABLE OF CONTENTS
CLAUSE HEADING PAGE
1. Definitions
Building
Common Parts
Development
Electricity Cost
Enactment
Head Lease/Superior Lease
Insurance Cost
Insurance Rent
Insured Risks
Interest Rate
Lettable Unit
Net Internal Area
Normal Business Hours
Permitted Part
Permitted Use
Planning Law
Plans
Premises
Public Authority
Services
Service Media
Tenant
Term
VAT
2. Interpretation
3. Demise and Rents
4. Tenant's Covenants
(1) Rent
(2) VAT
(3) Outgoings
(4) Compliance with Enactments
(5) Notices
(6) Repair
(7) Decoration and general condition and servicing
(8) Refuse
(9) To permit entry
(10) Compliance with notices relating to repair or condition
(11) Encroachments
(12) Alterations and reinstatement
(13) Use
(14) Signs
CLAUSE HEADING PAGE
(15) Alienation
(16) Registration
(17) Payment of cost of notices consents etc.
(18) Machinery
(19) Obstruction/overloading
(20) Parking/goods delivery
(21) Planning Law and compensation
(22) Indemnity
(23) Defective Premises
(24) Insurance and fire fighting equipment
(25) Dangerous and contaminative materials
(26) Yield up
(27) Regulations and covenants
(28) Security and access
(29) Head Lease
(30) Service Charge
5. Landlord's Covenants
(1) Quiet Enjoyment
(2) Insurance
(3) Head Lease
(4) Electricity Provision
(5) Management Company access
(6) VAT indemnity
6. Provision of Services
7. Provisos
(1) Forfeiture and re-entry
(2) Letting Scheme use and easements
(3) Common Parts and Service Media
(4) Service of notices
(5) Rent cesser
(6) Landlord's liability
(7) Arbitration fees
(8) Rent review memorandum
(9) No warranty as to use
(10) Disputes
(11) Compensation
(12) Rateable value appeals
(13) No warranty as to security
(14) Jurisdiction
(15) Overriding lease
(16)
8. Landlord's Guarantor
9. Tenant's option to determine
LEASE PARTICULARS
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1. DATE 24TH OCTOBER 1996
THIS LEASE IS AND IS INTENDED TO BE DELIVERED ON THE DATE FIRST ABOVE
WRITTEN
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2. PARTIES
(a) LANDLORD : 99 Bishopsgate Limited
(b) TENANT : Donaldson, Lufkin & Jenrette International
Limited
(c) MANAGEMENT COMPANY : 99 Bishopsgate Management Limited
(d) LANDLORD'S GUARANTOR : Hammerson U.K. Properties plc
(e) TENANT'S GUARANTOR : Donaldson, Lufkin & Jenrette, Inc.
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3. DEMISED PREMISES : ALL THOSE premises on the 26th floor
of the Building shown for identification
only edged red on Plan 1.
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4. BUILDING : 99 Bishopsgate London EC2
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5. CONTRACTUAL TERM AND : Commencing on the date hereof and
TERM COMMENCEMENT expiring on 23rd October 2011
AND EXPIRY DATES
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6. INITIAL RENT : pounds sterling 482,850
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7. RENT COMMENCEMENT DATE : 25th March 1998
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8. TENANT'S BREAK RIGHT : 24th October 2008
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9. CAPITAL SUM : pounds sterling 241,425 inclusive of VAT
CLAUSE HEADING PAGE
10. Guarantee and Guarantor's Indemnity
11. Stamp Duty Certificate
Schedule 1 Premises
Schedule 2 Easements and rights granted
Schedule 3 Exceptions and reservations
Schedule 4 The first reserved rent and the review thereof
Schedule 5 Service Charge
Schedule 6 Services
Schedule 7 Deeds and documents to which the demise is subject
THIS UNDERLEASE made the 24th day of October One thousand nine hundred and
ninety six
BETWEEN:-
(1) 99 BISHOPSGATE LIMITED whose registered office is at Lo Lam House Kumul
Highway Port Vila Vanuatu (Co. Regn. No. 10469) (registered under Section
21A to the Companies Act 1985 under company number FC018588 and branch
number BR002962) whose principal place of business is at 100 Park Lane
London W1Y 4AR (the "LANDLORD")
(2) 99 BISHOPSGATE MANAGEMENT LIMITED whose registered office is at 100 Park
Lane London W1Y 4AR (Co. Regn. No. 3071752) (the "MANAGEMENT COMPANY")
(3) HAMMERSON U.K. PROPERTIES PLC whose registered office is at 100 Park Lane
London W1Y 4AR (Co. Regn. No. 298351) (the "LANDLORD'S GUARANTOR")
(4) DONALDSON, LUFKIN & JENRETTE INTERNATIONAL LIMITED whose registered office
is at Moorgate Hall 155 Moorgate London EC2M 6XB (Co. Regn. No. 2475089)
(the "TENANT") and
(5) DONALDSON, LUFKIN & JENRETTE, INC. a corporation incorporated in the State
of Delaware United States of America whose address for the purposes of this
lease is 277 Park Avenue New York New York 10172 (the "GUARANTOR")
WITNESSETH as follows:-
1. DEFINITIONS
In this lease the following expressions have the respective specified
meanings (subject to any particular interpretation required by clause 2):-
(1) "ACTS OF TERRORISM" means any act or omission of any person acting on
behalf of or in connection with any organisation (or on his own behalf)
which carries out activities directed towards overthrowing or
influencing by force or violence Her Majesty's Government in the
United Kingdom or any other government de jure or de facto
(2) "AGREEMENT FOR INITIAL ALTERATIONS" means the agreement of even date
herewith and made between the Landlord and the Tenant governing the
initial fitting out of the Premises
(3) "BUILDING" means the land (of which the Premises form part) having a
frontage to the west side of Bishopsgate and a return frontage to the
south side of Wormwood Street and all buildings fixtures and other
structures whatsoever from time to time thereon and the appurtenances
thereof which land (together with the building now erected thereon)
is known as 99 Bishopsgate London EC2 and is for the purpose of
identification shown verged by a blue line on the Building Plan
together with any adjoining areas designated by the Landlord or the
Management Company
(4) "COMMON PARTS" means all parts of the Building which are from time to
time intended for the common use and enjoyment of the tenants and
occupiers of the Building and persons claiming through or under them
(whether or not other
1
parties are also entitled to use and enjoy the same) and reasonably
designated as such by the Landlord and including without prejudice to
the generality of the foregoing the pedestrian ways circulation areas
lobby entrance halls lifts lift shafts fire escapes landings
staircases passages forecourts car park landscaped areas plant rooms
management suites and any other areas which are from time to time
during the Term reasonably provided by the Landlord for common use by
or benefit of the tenants and occupiers of the Building But excluding
(for the avoidance of doubt) any premises intended to be let to any
party or for occupation by the Landlord or the Management Company
other than for the provision of the Services
(5) "DEVELOPMENT" has the meaning ascribed to that expression by Planning
Law
(6) "ELECTRICITY COST" means the actual cost to the Landlord of the
provision of electricity to the Premises for consumption by the Tenant
in accordance with its covenant contained at clause 5(4) being a fair
and reasonable proportion as determined by the Landlord of the total
cost of the provision of electricity to the Building as a whole
(including the provision of any security for the supply of electricity
to the Building which may from time to time be required by the
relevant undertaker responsible for the supply of electricity chosen
by the Landlord) which proportion shall so far as practicable (save
where the same are not in working order) be calculated using readings
taken in such manner and at such times as the Landlord shall from time
to time determine of the check meters relating to the Premises from
time to time installed but otherwise shall be determined in such
manner as the Landlord shall in its discretion consider to be fair and
reasonable in all the circumstances
(7) "ENACTMENT" means every Act of Parliament directive and regulation now
or hereafter to be enacted or made and all subordinate legislation
whatsoever deriving validity therefrom
(8) "HEAD LEASE" means the lease under which the Landlord holds the
Premises dated 29th September 1975 made between The Prudential
Assurance Company Limited (1) and Bishopsgate Developments Limited (2)
and "Superior Landlord" means the person for the time being entitled
to the reversion immediately expectant on the term granted by the Head
Lease and every other person having an interest in reversion to that
term
(9) "GROUP COMPANY" means a company which is either the holding company of
the Tenant or a wholly owned subsidiary of the Tenant or the Tenant's
holding company (as both expressions are defined in Section 736
Companies Act 1985)
(10) "INSURANCE COST" means in respect of any period for which the same is
required by the Landlord to be calculated the aggregate of the amount
which the Landlord may reasonably expend:-
(a) in effecting and maintaining insurance against the occurrence of
the Insured Risks in relation to the Building in such sum as
represents its then full current replacement cost with such
allowance as the Landlord from time to time considers appropriate
in respect of related liabilities and expenses (including without
limitation liability to pay any fees or charges on the submission
of an application for planning permission and costs which might
be incurred in complying with any Enactment in carrying out
2
any replacement work and sums in respect of architects'
engineers' and quantity surveyors' and other professional fees
and incidental expenses incurred in relation to any works of
debris removal and of replacement and all VAT) and
(b) in effecting and maintaining any insurance relating to the
property owners' liability and the employer's liability of the
Landlord in relation to the Building and anything done therein
and
(c) in professional fees relating to insurance including fees for
insurance valuations carried out at reasonable intervals by an
independent insurance valuer (but no more than once in any year)
and all reasonable fees and expenses payable to advisers in
connection with effecting and maintaining insurance policies and
claims and
(d) equivalent to the total of all reasonable excess sums (being for
the avoidance of doubt the first part of any insurance claim)
which the insurers are not liable to pay out on any insurance
claim in respect of the Building and which the Landlord or the
Management Company may have expended in replacing the damaged or
destroyed parts of the Building
(11) "INSURANCE RENT" means in respect of any period for which the same is
required by the Landlord to be calculated the aggregate of:-
(a) a fair and reasonable proportion attributable to the Premises of
the Insurance Cost for the relevant period
(b) the reasonable amount which the Landlord may expend in effecting
and maintaining insurance against up to six years' loss of the
rents first and secondly hereinafter reserved and Service Charge
having regard to potential increases of rent in accordance with
schedule 4 and with any addition to the amount insured as the
Landlord may decide in respect of VAT and
(c) (without prejudice to all other provisions of this lease relating
to the use of the Premises and the vitiation of any policy of
insurance) any reasonable amount which the Landlord may expend in
paying all additional premiums and loadings on any policy or
policies of insurance required to be paid as a result of anything
done or omitted (in breach of the terms of this lease) by the
Tenant and
(d) any tax charged on any premium for any such insurance
(12) "INSURED RISKS" means loss damage or destruction whether total or
partial caused by Acts of Terrorism fire lightning explosion riot
civil commotion strikes labour and political disturbances and
malicious damage aircraft and aerial devices (other than hostile
aircraft and devices) and articles accidentally dropped from them
storm tempest flood bursting or overflowing of water tanks and pipes
impact earthquake and accidental damage to underground water oil and
gas pipes or electricity wires and cables subsidence ground slip and
heave and such other usual commercial risks or perils against the
occurrence of which the Landlord may from time to time in its
reasonable discretion deem it desirable to insure subject to such
exclusions and limitations as are from time to time commonly
3
imposed by insurers and subject also to the exclusion of such of the
risks specifically hereinbefore mentioned as the Landlord may in its
reasonable discretion decide where insurance cover in respect of the
risk in question is not for the time being available in the London
insurance market on reasonable terms
(13) "INTEREST RATE" means a yearly rate three per cent above either the
base rate of Barclays Bank plc or such other bank (being for the time
being generally recognised as a clearing bank in the London market) as
the Landlord may from time to time use for general banking purposes or
if the base rate cannot be ascertained then above such other rate as
the Landlord may reasonably specify (and so that whenever there is
reference in this lease to the payment of interest at the Interest
Rate such interest shall be calculated on a daily basis and compounded
with quarterly rests on the usual quarter days)
(14) "LANDLORD'S SERVICES EQUIPMENT" means all the plant machinery and
equipment (with associated Service Media) within or serving the
Building from time to time (whether or not within the Premises or
other premises let or intended to be let by the Landlord) comprising
or used in connection with the following systems (to the extent
specified in the following paragraphs of this definition):-
(i) the whole of the sprinkler system within the Building
(including sprinkler heads)
(ii) the whole of the fire detection and fire alarm systems
(iii) the whole of the permanent fire fighting systems (but
excluding portable fire extinguishers installed by the Tenant
or other tenants of the Building)
(iv) the whole of the chilled water system
(v) the whole of the building management system (including the
building security system) installed by the Landlord
(vi) the central electrical supply system from the mains supply
into the Building so far as (and including) the electrical
riser busbars connecting to the distribution boards at each
level in the Building which is let or intended to be let by
the Landlord
(vii) the whole of the air handling system and the electricity
supply and control systems for the same
(viii) the standby generators and associated cabling wiring and duct
work
but excluding in each case any "stand alone" systems installed by the
Tenant or any other tenant or occupier of the Building
(15) "LETTABLE UNIT" means any unit of accommodation forming part of the
Building which is intended by the Landlord at any material time to be
for separate occupation
(16) "NET INTERNAL AREA" has the meaning ascribed to that expression by the
Code of Measuring Practice - Fourth Edition (RICS/ISVA 1993) (or if
there shall be no such edition or no such expression for the time
being the nearest equivalent thereto)
4
GMW 99 Bishopsgate EC2
Twenty Six Floor Tower GRAPHIC
99 Bishopsgate London, EC2
Building Plan
(17) "NORMAL BUSINESS HOURS" means 7.30 a.m. to 7.30 p.m. on Mondays to
Fridays inclusive (except bank holidays) subject to expansion of such
hours at the reasonable discretion of the Landlord provided that such
hours will automatically expand if any other tenant in the Building is
granted the benefit of any expanded hours
(18) "OUTSIDE NORMAL BUSINESS HOURS CHARGE" means the whole of the actual
cost to the Management Company of carrying out or providing any of the
Services at the request of the Tenant outside Normal Business Hours
other than any services which are stated to be provided 24 hours a day
(including without prejudice to the generality of the foregoing costs
and expenses in the nature of those set out in Part II of schedule 6)
or in the event of any of the Services being carried out or provided
outside Normal Business Hours to the Tenant and any other tenant or
tenants of the Building a fair proportion thereof (on a fair and
reasonable basis between the Tenant and any other tenant or occupier
making use of such Services) as reasonably determined by the Landlord.
PROVIDED THAT during the first year of the Term the cost of providing
air conditioning outside Normal Business Hours shall not exceed 88
pounds sterling per hour (in respect of the Premises being the only
user of air conditioning at the relevant time) or 48 pounds sterling
per hour per floor on the basis that any five of floors 18, 20 and 22
to 26 of the Building are simultaneously using such air conditioning
over the whole of such
floors
(19) "PERMITTED PART" means any part or parts of the Premises capable of
separate occupation
(20) "PERMITTED USE" means use as high class offices for any purpose within
Class B 1(a) (but not for any other purpose within that Use Class) of
the schedule to the Town and Country Planning (Use Classes) Order 1987
and for the avoidance of doubt use of the Premises for data processing
investor services business trading operators and investment banking
complies with this provision
(21) "PLANNING LAW" means every Enactment for the time being in force
relating to the use development and occupation of land and buildings
and every planning permission statutory consent and agreement made
under any Enactment relating to the Building
(22) "PLANS" means the plans annexed hereto and "Building Plan" means that
one of them so marked
(23) "PREMISES" means the premises described in schedule 1 and all
permitted additions alterations and improvements made to them
(24) "PUBLIC AUTHORITY" means any Secretary of State and any government
department public local regulatory fire or any other authority or
institution having functions which extend to the Premises or their use
and occupation and any court of law and the companies or authorities
responsible for the supply of water gas and electricity or any of them
and any of their duly authorised officers
(25) "REINSTATEMENT SPECIFICATION" means the specification annexed hereto
or in the event that materials listed in the specification are not
available from time to time or appropriate for use (in the Landlord's
reasonable opinion) then reference to such materials will be
substituted by reference to materials of not materially less quality
which perform a similar function PROVIDED THAT save to the extent
5
that items of plant and equipment have been altered during the Term
the Tenant shall not be required to replace existing items of plant
and equipment for new items subject to the existing items being in
good working order
(25) "REVIEW DATE" means each of:-
(a) the 24th October in the years Two thousand and one and every
fifth anniversary of that date during the Term (and the last day
of the Term)
(b) any date so stipulated by virtue of paragraph 5 of schedule 4
(26) "SERVICES" means the services and other matters specified in clause 6
and Part I of schedule 6
(27) "SERVICE MEDIA" means those parts of the Building comprising gas water
drainage electricity telephone telex signal and telecommunications
heating cooling ventilation air conditioning fire alarm and other
pipes drains sewers mains cables wires supply lines ducts conduits
flues and all other common conducting media plant appliances and
apparatus for the provision supply control and monitoring of services
to or from the Building and other common equipment
(28) "TERM" means a term of years commencing on the date hereof and
expiring on 23rd October 2011 and includes any period of holding over
or extension whether by any Enactment or common law
(29) "TERMINATION NOTICE" means not less than 12 months and 1 day's prior
written notice unless either:
(a) any Enactment or decision not capable of appeal on a point of law
confirming that the Tenant is not entitled to a new tenancy on
the expiration of such notice is in force or upheld as at 22nd
October 2007 (in which case not less than 6 months prior written
notice need be given); or
(b) any other tenant enters into a lease prior to September 1998 of
premises comprising at least a floor of the building within the
security of tenure protections of the Landlord and Tenant Act
1954 for a term of not less than 10 years (without break rights)
and is granted right to determine such lease on less than such 12
months' and 1 day's prior written notice (in which case the
notice period hereunder shall be reduced to such notice period as
is granted to such tenant in such circumstances)
(30) "VAT" means Value Added Tax as referred to in the Value Added Tax Act
1994 (or any tax of a similar nature which may be substituted for or
levied instead of it by statutes)
2. INTERPRETATION
(1) Words importing the singular include the plural and vice versa and
words importing one gender include both other genders
(2) The expressions "Landlord" "Tenant" "Management Company" and
"Guarantor" wherever the context so admits include their respective
successors in title and
6
where a party comprises more than one person covenants and obligations
of that party take effect as joint and several covenants and
obligations
(3) A covenant by the Tenant not to do (or omit) any act or thing also
operates as a covenant to use reasonable endeavours not to permit or
suffer it to be done (or omitted) and to prevent (or as the case may
be to require) it being done
(4) References in this lease to:-
(a) any clause sub-clause schedule or paragraph is a reference to the
relevant clause sub-clause schedule or paragraph of this lease
and clause and schedule headings shall not affect the
construction of this lease
(b) any right of (or covenant to permit) the Landlord or the
Management Company to enter the Premises shall also be construed
(subject always to the proviso to clause 4(9)) as entitling the
Landlord to remain on the Premises with or without equipment and
permitting such right to be exercised by all persons authorised
by the Landlord for as short a period as reasonably practicable
and making good all damage caused and causing as little
inconvenience as reasonably possible save where the right of
entry is exercised to remedy any breach hereunder where the
Landlord only undertakes to make good damage caused
(c) any consent licence or approval of the Landlord or words to
similar effect mean a consent licence or other approval in
writing signed by or on behalf of the Landlord and given before
the act requiring consent licence or approval
(d) the Premises (except in clause 4(15)) shall be construed as
extending where the context permits to any part of the Premises
(e) a specific Enactment includes every statutory modification
consolidation and re-enactment and statutory extension of it for
the time being in force except in relation to the Town and
Country Planning (Use Classes) Order 1987 which shall be
interpreted exclusively by reference to the original provisions
of Statutory Instrument 1987 No 764 whether or not the same may
at any time have been revoked or modified
(f) the last year of the Term includes the final year of the Term if
it shall determine otherwise than by effluxion of time and
references to the expiry of the Term include such other
determination
(5) (a) Where the context permits rents or other sums being due from the
Tenant to the Landlord or the Management Company mean that they
are exclusive of any VAT
(b) whenever the consent licence or approval of the Landlord is
required under this lease the relevant provision shall be
construed as also requiring (and any consent licence or approval
given by the Landlord shall be deemed subject to the need for)
the consent licence or approval of the Superior Landlord (for
which the Landlord shall apply at the Tenant's reasonable cost)
where the same is required under the Head Lease except that
nothing in this lease or in any consent licence or approval by
the
7
Landlord shall imply that the Superior Landlord's consent licence
or approval will not be unreasonably withheld or delayed
(c) references to any right of (or covenant to permit) the Landlord
to enter the Premises shall extend to the Superior Landlord and
to all persons authorised by it and shall be construed in the
manner required by clause 2(4)(b) but in relation to the Superior
Landlord and those with its authority
(d) the rights excepted and reserved in schedule 3 are also \
excepted and reserved for the benefit of the Superior Landlord
3. DEMISE AND RENTS
The Landlord at the request of the Guarantor and in consideration of the
payment by the Landlord to the Tenant of the sum of Two hundred and forty
one thousand four hundred and twenty five pounds (241,425 pounds sterling)
paid on the date hereof (receipt of which is acknowledged by the Tenant)
DEMISES unto the Tenant ALL THAT the Premises TOGETHER WITH the easements
and rights specified in schedule 2 exercisable in common with the Landlord
and all others with its authority or otherwise from time to time entitled
thereto EXCEPT and RESERVED unto the Landlord and all other persons
authorised by it from time to time during the Term or otherwise from time
to time entitled thereto (including the Management Company in relation to
the provision of the Services) the easements and rights specified in
schedule 3
TO HOLD the Premises unto the Tenant (together with and except and reserved
as aforesaid) for the Term SUBJECT to all rights easements covenants
stipulations and other matters affecting the same and SUBJECT to the
provisions of the deeds and documents mentioned in schedule 7
YIELDING AND PAYING therefor:
FIRST yearly and proportionately for any part of a year until 24th March
1998 a peppercorn (if demanded) and thereafter until the first Review Date
(and thereafter as determined pursuant to schedule 4) the yearly rent of
Four hundred and eighty two thousand eight hundred and fifty Pounds
(482,850 pounds sterling) exclusive of VAT (subject to clause 5(6))
payable by equal quarterly payments to be made in advance on the usual
quarter days in every year the first such payment to be made on 25th
March 1998
SECONDLY as additional rent from time to time the Insurance Rent payable on
demand
THIRDLY as additional rent on demand (in addition and without prejudice to
the Landlord's right of re-entry and any other right) interest at the
Interest Rate on any sum owed by the Tenant to the Landlord whether as rent
or otherwise which is not:-
(a) received in cleared funds by the Landlord within 10 days following the
due date (or in the case of money due only on demand within fourteen
days after the date of demand) calculated for the period commencing on
the due date for payment and ending on the date the sum and the
interest is received in cleared funds by the Landlord
(b) demanded (or if tendered is for the time being refused) by the
Landlord in circumstances where it is prudent for it not to demand or
accept any payment having regard to a breach of any of the Tenant's
obligations under this lease of
8
which the Tenant has received notice calculated for the period
commencing on the due date for payment and ending on the date the sum
(and the interest) is subsequently received by the Landlord
FOURTHLY as additional rent all VAT for which the Landlord is or may become
liable to account to H.M. Customs & Excise (or other relevant body to whom
account has for the time being to be made) on the supply by the Landlord to
the Tenant under or in connection with the provisions of this lease or the
interest created by it and of any other supplies whether of goods or
services such rent fourthly reserved to be due for payment
contemporaneously with the other rents or sums to which it relates
AND FIFTHLY a rent equal to the Electricity Cost such rent to be payable on
demand (either annually or by instalments) as the Landlord shall determine
4. TENANT'S COVENANTS
The Tenant covenants with the Landlord (and in respect of sub-clause 4(30)
also with the Management Company) throughout the Term subject to clause
4(15):
RENT
(1) To pay the rents reserved by this lease on the days and in the manner
set out in clause 3 without deduction or set off and (unless for the
time being the Landlord shall have required in writing to the
contrary) to pay the rent first reserved (together with any sum in
respect of the rent fourthly reserved as may be applicable thereto) by
banker's standing order to such bank as the Landlord may from time to
time nominate
VAT
(2) Subject to clause 5(6) wherever the Tenant is required to pay any
amount to the Landlord hereunder by way of reimbursement or indemnity
to pay on the production of a valid VAT invoice to the Landlord (as
applicable) in addition an amount equivalent to any VAT incurred by
the Landlord save to the extent that the Landlord obtains credit for
such VAT incurred by the Landlord pursuant to sections 24 25 and 26
Value Added Tax Act 1994 or any regulations made thereunder
OUTGOINGS
(3) To pay all rates taxes charges and other outgoings whatsoever now or
hereafter assessed charged or imposed upon the Premises or upon their
owner or occupier (and a proper proportion determined by the Landlord
attributable to the Premises of any rates taxes charges and other
outgoings now or hereafter assessed charged or imposed upon the
Premises in common with other premises or upon the owners or occupiers
thereof) and (to the extent the Tenant does not pay it directly to the
relevant supplier) the total cost (including meter rents) of all water
(including chilled water) electricity and gas separately metered
and/or exclusively supplied to the Premises during the Term as
reasonably determined by the Landlord excluding (without prejudice to
the rent fourthly reserved and clause 4(2)) any tax payable by the
Landlord as a direct result of any actual or implied dealing with the
reversion of this lease or of the Landlord's receipt of income
9
COMPLIANCE WITH ENACTMENTS
(4) To comply with the requirements of all Enactments and of every Public
Authority (including the due and proper execution of any works) in
respect of the Premises their use occupation employment of personnel
in them and any work being carried out to them (whether the
requirements are imposed upon the owner lessee or occupier) and not to
do or omit anything by which the Landlord may become liable to make
any payment or do anything under any Enactment or requirement of a
Public Authority
NOTICES
(5) As soon as reasonably practicable and in any event within 5 working
days of receipt of the same to give to the Landlord notice of (and a
certified copy of) any notice permission direction requisition order
or proposal made by any Public Authority and without delay to comply
in all respects at the Tenant's cost with the provisions thereof save
that the Tenant shall if so required by and at the cost of the
Landlord make or join in making such objections or representations in
respect of any of them as the Landlord may reasonably require
REPAIR
(6) To put and keep the Premises (and any works or installations made
pursuant to paragraphs 4 and 5 of schedule 2) in good and substantial
repair and condition (damage by any of the Insured Risks excepted to
the extent that the insurance money shall not have been rendered
irrecoverable subject to clause 5(2)(b) or insufficient because of
some act or default of the Tenant or of any person deriving title
under or through it or their respective servants or agents or
invitees) and to replace whenever necessary during the Term and on
expiry of the Term the landlord's fixtures and fittings (including any
fitted carpets) in the Premises which may have become beyond economic
repair with items of the same type and quality
DECORATION AND GENERAL CONDITION AND SERVICING
(7) (a) To keep the Premises maintained to a high standard of decorative
order and finish and properly cleansed and tidy and (without
prejudice to the foregoing) as often as the same shall be
necessary (and not less frequently than once in every fifth year
of the Term but not more than once in any 18 month period) and
also in the last year of the Term to clean paint polish or
otherwise treat as the case may be all inside surfaces of wood
and metal work of the Premises usually or requiring to be painted
polished or otherwise treated with two coats at least of high
quality paint or polish vinyl wall coverings (where applicable)
or other appropriate materials in a good and workmanlike manner
(and during the last year of the Term in the colour scheme
specified and otherwise in accordance with the Reinstatement
Specification) PROVIDED ALWAYS THAT the Tenant shall not be
obliged to carry out any such decorative treatment if the need
for it is caused by damage by any of the Insured Risks to the
extent (subject to clause 5(2)(b)) that the insurance money shall
not have been rendered irrecoverable or insufficient because of
some act or default of the Tenant or of any person deriving title
under or through it or their respective servants agents or
invitees
10
(b) To clean the inside of all external window glazing in the
Premises at least once in every month using reputable contractors
(c) To enter into and maintain contracts for the regular inspection
maintenance and servicing of all fixed plant and equipment
comprised in the Premises which has or is likely to have any
impact on the Landlord's Services Equipment by reputable
contractors approved by the Landlord (such approval not to be
unreasonably withheld) and to obtain satisfactory test
certificates as may be reasonably required by the insurers and
whenever reasonably required to produce copies of such contracts
and certificates
REFUSE
(8) Not to deposit any refuse on any of the Common Parts except in areas
designated for such purpose from time to time by the Landlord and to
comply with all requirements of any Public Authority and any
reasonable regulations made by the Landlord pursuant to clause 4(27)
in relation to control over and disposal of rubbish
TO PERMIT ENTRY
(9) To permit the Landlord (and persons authorised by the Landlord) at
reasonable times in compliance with the Tenant's reasonable security
requirements on reasonable prior written notice (except in an
emergency) to enter the Premises in order to:-
(a) examine their state of repair
(b) ascertain that the covenants and conditions of this lease have
been observed
(c) take any measurement or valuation of the Premises
(d) rebuild renew cleanse alter test maintain repair inspect and make
connections to any part of the Building including the Service
Media (PROVIDED that the Landlord will procure that such entry
takes place outside Normal Business Hours where practicable)
(e) during the last six months of the Term (or at any time in the
case of a disposal of the Landlord's interest) to show the
Premises to prospective purchasers or tenants and their agents
(f) exercise the rights described in schedule 3
Compliance with notices relating to repair or condition
(10) (a) To comply with any notice requiring the Tenant to remedy any
breach of its covenants
(b) If the Tenant shall not within a reasonable time comply with any
such notice to permit the Landlord and any authorised person to
enter the Premises to remedy the breach as the Tenant's agent and
at the Tenant's proper cost the Landlord making good any damage
caused
11
(c) To pay to the Landlord on demand all the proper costs and
expenses incurred by the Landlord under the provisions of this
sub-clause
ENCROACHMENTS
(11) (a) To preserve all rights of light and other easements belonging to
the Premises and not knowingly to give any acknowledgment that
they are enjoyed by consent
(b) Not knowingly to do or omit anything which might subject the
Premises to the creation of any new easement and to give notice
to the Landlord forthwith of any encroachment which might have
that effect
ALTERATIONS AND REINSTATEMENT
(12) (a) Not to carry out any Development of or on the Premises nor
(without prejudice to the exclusion of structural parts from the
demise of the Premises) any works affecting any structural parts
of the Building and not to commit any waste
(b) Without prejudice to any other rights of the Landlord in respect
of areas not included in the Premises not to install or erect any
exterior lighting shade or awning or place any structure or other
thing outside the Premises
(c) Without prejudice to paragraphs (a) and (b) of this sub-clause
and subject to the provisos to this paragraph (c) not to make any
other alteration or addition to the Premises (including all
electrical and other plant and equipment and the installation and
removal of demountable partitioning) except:-
(i) in accordance with plans and specifications (adequately
describing the work in question and the manner in which
the work will be carried out) previously submitted at the
Tenant's expense in triplicate to and approved by the
Landlord (such approval not to be unreasonably withheld or
delayed PROVIDED THAT the Landlord shall respond to the
Tenant's submission within 10 working days in the case of
minor alterations (excluding any alterations which affect
any of the Landlord's Services Equipment) and if the
Landlord fails to respond within 10 working days as
aforesaid it shall be deemed to have accepted such minor
alterations AND PROVIDED FURTHER that the initial fitting
out of the Premises following the date hereof shall be
governed by the Agreement for Initial Alterations
(ii) in a manner which shall not materially and adversely
affect the Landlord's Services Equipment any Service Media
or the provision of any of the Services
(iii) in accordance with any relevant terms conditions
recommendations and regulations of any Public Authority
(and in particular in relation to any electrical
installation in accordance with the terms and conditions
laid down by the Institution of Electrical Engineers and
the Regulations of the Electricity Supply
12
Authority) and the insurance company with whom the
Premises are for the time being insured and
(iv) in a good and workmanlike manner
PROVIDED ALWAYS THAT subject to clause 4(12)(c)(i):-
(I) no such alterations or additions shall be carried out
until the Landlord has issued its consent in writing to
which the Tenant shall if required join as a party
(II) once any such alterations or additions have been carried
out the Tenant shall supply to the Landlord as-built plans
in triplicate (together with a computer aided design disk
and 35 mm slides) showing the works as carried out
(d) At the expiry of the Term to remove:-
(i) all alterations and additions made to the Premises by the
Tenant
(ii) all work done in connection with the original fitting out
by the Tenant in pursuance of the Agreement for Initial
Alterations
and to restore and make good the Premises in accordance with the
Reinstatement Specification in a proper and workmanlike manner to
the condition and design which existed before the alterations or
additions were made with all services properly sealed off
USE
(13) Not to use the Premises or any chattels in them:-
(a) for any purpose (and not to do anything in or to the Premises)
which may be or become or cause a nuisance obstruction or damage
to any person or property
(b) for a sale by auction or for any public meeting or for any
dangerous noxious noisy illegal or immoral trade business or
activity or for residential purposes and not to use the Common
Parts for the transaction of any business or
(c) (without prejudice to the preceding paragraphs of this
sub-clause) except for the Permitted Use
SIGNS
(14) (a) Not to erect any aerial satellite dish sign signboard pole
antenna wire or other apparatus on the outside of the Building
save for the right granted pursuant to paragraph 3 of schedule 2
(b) Not to affix or exhibit so as to be visible from outside the
Premises any placard sign notice fascia board or advertisement
except the approved signs referred to in paragraph 3 of schedule
2
13
ALIENATION
(15) (a) If the Tenant at any time desires to assign the whole of the
Premises the Tenant shall first by an irrevocable unconditional
written notice ("the Tenant's Notice") served upon the Landlord
offer to surrender or assign this lease upon such financial terms
and conditions as the Tenant may desire
(b) If the Landlord wishes to accept such surrender or assignment it
shall within twenty-one days of receipt of the Tenant's Notice
serve a counter-notice ("the Counter-Notice") upon the Tenant
stating as much
(c) If the Landlord serves a Counter-Notice on the Tenant then the
Tenant shall surrender or assign (at the Landlord's option) the
Premises to the Landlord (or as the Landlord may direct) within
six months of receipt of the Counter-Notice either with vacant
possession or subject only to a permitted underletting and the
Tenant's liability hereunder shall cease in respect of any
matters arising following the date of such assignment or
surrender but without prejudice to any antecedent breaches of
covenant
(d) If the Landlord does not serve a Counter-Notice then the Tenant
must (if it wishes to assign) complete its assignment on terms
greater than 95 per cent in value of the terms and conditions
stipulated in the Tenant's Notice within six months from the date
of the Tenant's Notice and if the Tenant shall fail to complete
within such period if it still wishes to assign the whole of the
Premises it must reinstate the procedure set out in this clause
4(15)
(e) Subject to the foregoing provisions of this sub-clause 4(15) not
to assign mortgage charge or underlet or in any other manner part
with possession of any part (being less than the whole) of the
Premises or agree to do so except that the Tenant may underlet
the whole of (but not more or less than) any Permitted Part or
Permitted Parts in accordance with paragraphs (h) and (i) of this
sub-clause
(f) Subject to the foregoing provisions of this sub-clause 4(15) not
to assign underlet or otherwise part with possession of or the
whole of the Premises or agree to do so except that the Tenant
may assign or underlet the whole of the Premises in accordance
with paragraph (g) or (h) respectively of this sub-clause
(Assignment)
(g) (i) Not to assign the whole of the Premises without first
obtaining the Landlord's consent issued within 2 months
before completion of the assignment which consent shall not
be unreasonably withheld or delayed but which may be granted
subject to any one or more of the conditions referred to in
paragraph (g)(ii) and which may be withheld if any one or
more of the circumstances referred to in paragraph (g)(iii)
exist
14
(ii) The conditions referred to in paragraph (g)(i) (which are
specified for the purposes of section 19(1A) Landlord and
Tenant Act 1927) are:
authorised guarantee
(a) that the Tenant shall enter into an authorised
guarantee agreement (as defined in section 16 Landlord
and Tenant (Covenants) Act 1995) with the Landlord in a
form which the Landlord reasonably requires
third party guarantee/rent deposit
(b) that if so reasonably required by the Landlord the
proposed assignee shall have procured covenants with
the Landlord by a guarantor or guarantors (not being
the Tenant or any guarantor) reasonably acceptable to
the Landlord in a form acceptable to the Landlord
(acting reasonably);
intra group dealings
(c) if the proposed assignee is a Group Company the Tenant
shall have procured either:
(A) if the Tenant's obligations under this lease are
guaranteed by another Group Company that such
Group Company covenants with the Landlord on the
same terms (mutatis mutandis) as those contained
in clause 10; or
(B) if there is no guarantor of the Tenant's
obligations under this lease and if the assignee
is not at the date of the application for consent
to the proposed assignment in the reasonable
opinion of the Landlord of financial standing
equivalent to or greater than the Tenant at the
date of this lease that the proposed assignee
procures covenants by a Group Company which is not
the Tenant or the proposed assignee and which is
in the reasonable opinion of the Landlord of
financial standing equivalent to or greater than
the Tenant in the same terms (mutatis mutandis) as
those contained in clause 10; and
(iii) The circumstances referred to in paragraph (g)(i) (which are
specified for the purposes of section 19(lA) Landlord and
Tenant Act 1927) are:-
(a) where the Tenant's solicitors have not given an
undertaking to the Landlord's solicitors to pay all
reasonable legal surveyor's and management costs
disbursements and VAT arising on the application for
consent to such assignment whether or not consent is
15
granted unless the Landlord unreasonably withholds
consent in circumstances where it is required to be
reasonable; and/or
(b) where any of the rents and Interim Sum due from the
Tenant to the Landlord or the Management Company
respectively under this lease remain unpaid at the date
of the application for consent to the proposed
assignment
(UNDERLETTING)
(h) Not to underlet the whole of the Premises or any Permitted Part
(each being referred to in this paragraph as the premises)
except:-
(i) to a person who before the underletting shall have
covenanted with the Landlord to observe and perform the
Tenant's obligations under this lease during the sub-term
to the extent they relate to the premises demised by the
underletting (other than the payment of rents) and a
covenant not to assign the whole of the premises without
the Landlord's consent (which shall not be unreasonably
withheld or delayed) and an unqualified covenant not to
assign part of the premises or to underlet or otherwise
part with possession or share the occupation of the
premises or any part of them
(ii) by reserving as a yearly rent without payment of a fine or
premium (in addition to the service and insurance and
other rents payable under this lease except the rent first
hereby reserved or (in the case of underletting of a
Permitted Part) a pro rata proportion of them) an amount
equal to:-
(a) (in the case of an underletting of the Premises) the
then open market rack rental value of the Premises
(b) (in the case of an underletting of a Permitted Part) a
pro rata proportion of the then open market rack
rental value of the Premises
the proportion in each case being calculated by reference
to the Net Internal Area of the Permitted Part in relation
to the Net Internal Area of the Premises, in all cases
such rent to be payable by equal quarterly instalments in
advance on the usual quarter days and to be approved by
the Landlord prior to the underletting (such approval not
to be unreasonably withheld or delayed) but the amount of
such rent and the approval of the Landlord thereto may not
be used as evidence by the Tenant for the purpose of any
rent review pursuant to this lease
(iii) by a form of underlease:-
(a) by which the principal rent reserved by the underlease
is reviewed upwards only at not greater than five year
intervals during the sub-term in accordance with the
same
16
principles (mutatis mutandis) and at the times as
apply to the rent first reserved by this lease
(b) requiring the underlessee to observe and perform all
the covenants and other provisions binding on the
Tenant under this lease (other than the covenant by the
Tenant to pay rents) to the extent they relate to the
premises and containing:-
(A) a condition for re-entry by the underlessor on
breach of any covenant by the underlessee
(B) a qualified covenant not to assign the whole of
the premises and an absolute covenant not to
assign part of the premises or to underlet or
otherwise part with possession or share the
occupation of the premises or any part of them
(iv) with the Landlord's consent issued within three months
before completion of the underletting which consent (subject
to compliance with the foregoing conditions precedent) shall
not be unreasonably withheld or delayed
(i) In relation to an underlease of a Permitted Part:-
(i) not to include in the sub-demise any part of the entrance
to or the reception area of the Premises
(ii) to except from the underlease all necessary circulation
areas and plant and equipment which will serve the
Premises in common and to reserve a separate service
charge rent in respect of their maintenance repair and
renewal
(iii) not as a result of the grant to create or permit the
creation of more than three separate occupations affecting
the whole of the Premises (occupations in right of this
lease counting as one occupation)
(iv) not to grant or agree to grant the underlease without
providing for the exclusion of sections 24 to 28 inclusive
of the Landlord and Tenant Act 1954 in relation to the
underlease in pursuance of an Order duly made under
section 38(4) of that Act before the date of grant
(j) To enforce the observance and performance by every such
underlessee and its successors in title of the provisions of the
underlease and not expressly or impliedly to waive any breach of
them nor vary the terms of any underlease
(k) Not to agree any reviewed rent payable under an underlease
without the Landlord's consent and if the rent review under any
underlease is to be determined by an independent person not to
agree his appointment without the Landlord's consent (PROVIDED
ALWAYS THAT the Landlord shall not unreasonably withhold or delay
any consent required
17
under this sub-paragraph) and to procure that any representations
which the Landlord may wish to make in relation to the rent
review are duly submitted to the independent person and to
provide to the Landlord promptly on the same becoming available
copies of any representattons made by or on behalf of the Tenant
or the underlessee in relation to such rent review
(SHARING OCCUPATION)
(I) Not to part with or share the occupation of the Premises or any
part of them except that the Tenant may share occupation with a
company which is (but only for so long as it remains) either the
holding company of the Tenant or a majority-owned subsidiary of
the Tenant or of the Tenant's holding company (as those
expressions are defined in section 736 Companies Act 1985) so
long as the Tenant does not grant the person sharing occupation
exclusive possession (so that such company occupies as licensee
only without creating any relationship of landlord and tenant)
nor otherwise transfer or create a legal estate and the Tenant
shall notify the Landlord of the identity of each company in
occupation
REGISTRATION
(16) (a) Within twenty-one days after any disposition or devolution of
this lease or of any estate or interest in or derived out of it
to give notice in duplicate of the relevant transaction to the
Landlord for registration with a certified copy of the relevant
instrument and to pay to the Landlord a fair and reasonable fee
for each such registration of not less than twenty five pounds
(b) To register with the Landlord particulars of the determination of
every rent review under any underlease of the Premises within
fourteen days after the date of determination
PAYMENT OF COST OF NOTICES CONSENTS ETC.
(17) To pay on demand all reasonable expenses (including counsels'
solicitors' surveyors' and bailiffs' fees) properly incurred by the
Landlord in and incidental to:
(a) the preparation and service of a notice under section 146 Law of
Property Act 1925 or in contemplation of any proceedings under
section 146 or 147 of that Act notwithstanding that forfeiture is
avoided otherwise than by relief granted by the court and
(b) every reasonable step taken during or after the expiry of the
Term in connection with the enforcement of the Tenant's
obligations under this lease including the service or proposed
service of all notices and schedules of dilapidations and
(c) every application for consent licence or approval under this
lease but not if the application is unreasonably refused or
delayed or granted subject to unreasonable conditions (where such
consent is not to be unreasonably withheld or delayed)
18
MACHINERY
(18) Not to install in the Premises any plant or machinery other than usual
office equipment without the Landlord's consent which shall not be
unreasonably withheld PROVIDED ALWAYS THAT no plant or machinery shall
be installed or operated in the Premises and nothing shall be done or
omitted in them which may cause:-
(a) the efficiency of the heating ventilation air conditioning and
cooling system installed in the building to be diminished or
impaired in any way
(b) noise dust fumes smell vibration or electrical interference
affecting or having any other intrusive effect on any other part
of the Building or other adjoining property or persons outside
the Premises
OBSTRUCTION/OVERLOADING
(19) Not to obstruct:-
(a) or damage any part of the Building or exercise any of the rights
granted by this lease in a way which causes nuisance or damage
(b) any means of escape
(c) or discharge any deleterious matter into
(i) any pipe drain or other conduit serving the Premises and
(to the extent they lie within the Premises) to keep them
clear and functioning properly or
(ii) any Service Media
(d) or stop-up or darken the windows and other openings of the
Premises
nor to overload or cause undue strain to the Service Media or any
other part of the Building and in particular not to suspend any undue
weight from the ceilings or walls of the Premises and not to exceed
the following floor loadings:-
floor finishings: : 4 kN/m2 (80lbs per sq.ft)
live load : 1 kN/m2 (20lbs per sq.ft)
(e) any requisite notice erected on the Premises including any
erected by the Landlord in accordance with its powers under this
lease
PARKING/GOODS DELIVERY
(20) To ensure that all loading unloading deliveries and despatch of goods
is carried out only by using the service accesses and goods lifts
designated by the Landlord for the use of the Premises
PLANNING LAW AND COMPENSATION
(21) Without prejudice to clause 4(4) at all times during the Term to
comply with the provisions and requirements of Planning Law relating
to or affecting
19
(a) (i) the Premises
(ii) any operations works acts or things carried out executed
done or omitted on the Premises
(iii) the use of the Premises
(iv) the use by the Tenant of (and the exercise of any other
rights hereunder in respect of) any other parts of the
building
(b) Subject to the provisions of paragraph (c) of this sub-clause as
often as occasion requires during the Term at the Tenant's
expense to obtain and if appropriate renew all planning
permissions (and serve all notices) required under Planning Law
in respect of the Premises whether for the carrying out by the
Tenant of any operations or the institution or continuance by the
Tenant of any use of the Premises or any part thereof or
otherwise
(c) Not without the Landlord's consent (such consent not to be
unreasonably withheld or delayed) to apply for any planning
permission relating to the Premises (and not to apply for any
such planning permission relating to any other part of the
Building) but so that subject to compliance with paragraph (e) of
this sub-clause the Landlord's consent shall not be unreasonably
withheld or delayed to the making of a planning application in
respect of the Premises relating to any operations or use or
other thing (if any) which assuming it to be implemented in
accordance with Planning Law would otherwise not be in breach of
the provisions of this lease
(d) If the Landlord so requires in connection with any relevant
proposal by the Tenant to apply for a determination under section
191 or 192 Town and Country Planning Act 1990
(e) If the Landlord consents in principle to any application by the
Tenant (which it hereby agrees to consider and determine with all
due expedition) for planning permission to submit a draft of the
application to the Landlord for its approval and to give effect
to its reasonable requirements in respect thereof and if and to
the extent the Landlord so requires to lodge the application with
the relevant authority in the joint names of the Landlord and the
Tenant and in duplicate
(f) Not to implement any planning permission before the Landlord has
acknowledged that its terms are acceptable nor before the
Landlord has received any cash or other security which it
reasonably requires for compliance with any conditions imposed by
the planning permission
(g) If the Landlord at the Landlord's cost reasonably requires or the
Tenant desires to lodge and progress diligently an appeal against
any refusal of an application for planning permission lodged in
respect of the Premises by the Tenant or by any person claiming
under or through the Tenant (whether or not lodged in its name
alone) the Landlord undertakes to cooperate fully with the Tenant
in respect of any such appeal unless such
20
appeal would be likely to have a material and adverse effect on
the Landlord's interests in the Building
(h) Unless the Landlord otherwise directs to complete before the
expiry of the Term all works on the Premises required as a
condition of any planning permission implemented by the Tenant or
by any person claiming under or through it
(i) If the Tenant receives or is entitled to receive any statutory
compensation under any Enactment in relation to its interest in
the Premises the Tenant shall on any determination of its
interest prior to the expiry of this lease by effluxion of time
forthwith make such provision as is just and equitable for the
Landlord to receive its due benefit from such compensation
INDEMNITY
(22) To indemnify the Landlord against all expenses proceedings costs
claims damages demands and any other liability or consequence arising
out or in respect of any breach of any of the Tenant's obligations
under this lease (including all costs reasonably incurred by the
Landlord in an attempt to mitigate any such breach) or of any act
omission or negligence of the Tenant or any person at the Premises
with the Tenant's authority
DEFECTIVE PREMISES
(23) On becoming aware of the same (or when the Tenant ought reasonably to
have become aware of the same) to give notice forthwith to the
Landlord of any defect in the Premises which might give rise to:-
(a) an obligation on the Landlord to do or refrain from doing
anything in relation to the Premises or
(b) any duty of care or the need to discharge such duty imposed by
the Defective Premises Act 1972 or otherwise
and at all times to display and maintain all notices which the
Landlord may from time to time reasonably require to be displayed at
the Premises in relation to their state of repair and condition
INSURANCE AND FIRE FIGHTING EQUIPMENT
(24) (a) Not to do or omit anything by which any insurance policy
(relevant extracts of which shall have been provided to the
Tenant) relating to the Building or any part of it becomes void
or voidable or by which the rate of premium on such policy may be
increased
(b) To comply with all proper requirements of the insurers and to
provide and maintain unobstructed appropriate operational fire
fighting equipment and fire notices on the Premises
(c) To notify the Landlord forthwith of:-
21
(i) any incidence of any Insured Risk on the Premises and of any
other event which ought reasonably to be brought to the
attention of insurers and of which the Tenant ought
reasonably to be aware
(ii) the insurable value of any fixture installed in the Premises
by the Tenant or any person claiming under or through the
Tenant
(d) That if at any time the Tenant or any person claiming under or
through it shall be entitled to the benefit of any insurance of
the Premises to cause all money paid under such insurance to be
applied in making good the loss or damage in respect of which it
was paid
(e) Subject to clause 5(2)(b) if the whole or any part of the
Building is damaged or destroyed by any of the Insured Risks at
any time during the Term and the insurance money under any
insurance policy effected by the Landlord is rendered wholly or
partially irrecoverable because of some act or default of the
Tenant or any person deriving title under or through the Tenant
or their respective servants agents or invitees forthwith to pay
the Landlord the whole amount of the insurance money so
irrecoverable
DANGEROUS AND CONTAMINATIVE MATERIALS
(25) Not to keep place store or use or permit or suffer to be kept placed
stored or used in or upon or about the Premises any materials
substance or other thing of a dangerous inflammable combustible
explosive corrosive or offensive nature or any materials substance or
other thing which may in any way cause pollution injury or harm by
percolation corrosion contamination migration release or otherwise on
beneath or in the vicinity of the Premises
YIELD UP
(26) (a) At the expiry of the Term to remove all chattels and tenant's
fixtures and quietly to yield up the Premises reinstated in
accordance with the Reinstatement Specification and restored and
made good to the extent required under clause 4(12)(d) and in the
state of repair condition decorative order and layout otherwise
required by this lease and any licences or consents issued in
pursuance of it and to make good any damage so caused in a proper
and workmanlike manner
(b) The Tenant irrevocably authorises the Landlord to remove and
dispose of any chattels which may be left in the Premises within
28 days after the Tenant has quit them (without being obliged to
obtain any consideration for the disposal) and the Tenant
irrevocably declares that any such chattels will stand abandoned
by it
REGULATIONS AND COVENANTS
(27) To comply with:-
(i) all reasonable regulations reasonably made by the Landlord
from time to time and notified to the Tenant in writing
for the good management of the Building PROVIDED ALWAYS
THAT no such regulations shall purport to amend the terms
expressed in
22
this lease and if there is any inconsistency between the
terms of this lease and the regulations the terms of this
lease shall prevail
(ii) all covenants stipulations and other matters affecting the
Premises and not to interfere with any rights easements
or other matters affecting the Premises
SECURITY AND ACCESS
(28) To use all reasonable endeavours to ensure that the Tenant's visitors
to the Premises observe such security regulations which may apply to
them
HEAD LEASE
(29) (a) To observe and perform the covenants and conditions on the part
of the lessee contained in the Head Lease so far as they relate
to the Premises except the covenant for the payment of rent and
except also so far as the obligations relating to insurance fall
to be observed and performed by the Landlord pursuant to clause
5(2)
(b) Not to do or omit any act or thing which would or might cause the
Landlord to be in breach of the Head Lease
SERVICE CHARGE
(30) To pay the Service Charge (and VAT thereon) to the Management Company
at the times and in the manner provided for in clause 6 and schedule 5
without deduction or set off and to pay the Outside Normal Business
Hours Charge within 10 days of demand (either annually or by monthly
instalments) as the Management Company shall reasonably determine
PROVIDED THAT for the period from the date hereof until the earlier of
25th June 1997 and the date on which the Tenant commences full
beneficial occupation of the Premises following the works contemplated
by the Agreement for Initial Alterations the Service Charge payable by
the Tenant in any Accounting Period shall not exceed 32,190 pounds
sterling inclusive of VAT and PROVIDED FURTHER that the Service
Charge payable in respect of the twelve month period from the earlier
of 25th June 1997 and the date on which the Tenant commences full
beneficial occupation of the Premises following the works contemplated
by the Agreement for Initial Alterations shall be 74,573.50 pounds
sterling exclusive of VAT]
5. LANDLORD'S COVENANTS
The Landlord covenants with the Tenant:
QUIET ENJOYMENT
(1) That if the Tenant observes and performs its covenants contained in
this lease the Tenant may peaceably hold and enjoy the Premises
without any lawful interruption by the Landlord or any person
rightfully claiming through under or in trust for it
23
INSURANCE
(2) (a) To keep the Building (except all tenants' plant and equipment and
trade fixtures) insured against the Insured Risks in the full
current replacement cost
(b) to use reasonable endeavours to procure that the interest of the
Tenant is noted on the insurance policy and to use reasonable
endeavours to further procure that the insurers waive any rights
of subrogation against the Tenant (or any lawful subtenant
occupier or invitee) and the Landlord will notify the Tenant if
it is unable so to procure and will duly consider the
representations of the Tenant regarding alternative insurers who
may be prepared to procure that the insurers waive any
subrogation rights and/or note the interest of the Tenant and
will also permit the Tenant to make representations to the
insurers regarding the noting of the Tenant's interest and/or
waiver of rights of subrogation
(c) On request to supply the Tenant (but not more frequently than
once in any period of twelve months) with evidence of such
insurance
(d) If and whenever during the Term the Building (except as
aforesaid) is damaged or destroyed by an Insured Risk and to the
extent that payment of the insurance monies is not refused
because of any act neglect default or omission of the Tenant or
of any person deriving title under or through the Tenant or their
respective servants agents and invitees subject to clause 5(2)(b)
above the Landlord will with all convenient speed take the
necessary steps to obtain any requisite planning permissions and
consents and if they are obtained to lay out the money received
from the insurance of the Building (except sums in respect of
public liability and employer's liability and loss of rent)
towards replacing (but not necessarily in facsimile
reinstatement) the damaged or destroyed parts (except as
aforesaid) and in the case of the Premises to the Reinstatement
Specification as soon as reasonably practicable (and the Landlord
shall keep the Tenant informed of progress of any such insurance
claims and the Landlord's proposals for compliance with this
provision) PROVIDED ALWAYS THAT the Tenant shall have no claim
against the Landlord under this clause 5(2)(c) in respect of the
manner of replacement of the interior of any Lettable Unit other
than the Premises or any alteration to the Common Parts and
PROVIDED FURTHER THAT the Landlord shall not be liable to carry
out the replacement if it is unable (having used all reasonable
endeavours) to obtain every planning permission and consent
necessary to execute the relevant work in which event the
Landlord shall be entitled to retain all the insurance money
received by it and if the Landlord so retains the insurance money
the Tenant shall be entitled to determine this lease on not less
than one month's prior written notice
(e) In the event that the Premises have not been reinstated to the
Reinstatement Specification or essential means of access thereto
within the Building is not available in the circumstances
contemplated in subclause 5(2)(d) by the date five years and
eleven months following the date of such damage or destruction by
an Insured Risk the Tenant may
24
determine this lease on not less than one month's prior written
notice such notice to be served (if at all) within one month
after expiry of such five years and eleven months period
HEAD LEASE
(3) (a) To pay the rents reserved by the Head Lease and to perform so far
as the Tenant is not liable for such performance under the terms
of this lease but so far only as to preserve the existence of
this lease the covenants and conditions on the part of the lessee
contained in the Head Lease
(b) On the request and at the reasonable expense of the Tenant to
take all reasonable steps to enforce the covenants on the part of
the Superior Landlord contained in the Head Lease
(c) To take all reasonable steps at the Tenant's reasonable expense
(to the extent possible under the Head Lease) to obtain the
consent of the Superior Landlord wherever the Tenant makes
application for any consent required under this lease where the
consent of both the Landlord and the Superior Landlord is needed
by virtue of this lease and the Head Lease
ELECTRICITY PROVISION
(4) Subject to clause 7(3) to use all reasonable endeavours to provide or
procure the provision of electricity to the Premises to the extent
necessary to meet the requirements of the Tenant having regard to the
overall electricity services design standards for the Building as a
whole and to all relevant statutory provisions from time to time
regulating the supply and utilisation of electricity and the terms and
conditions relative thereto from time to time imposed by the
electricity provider chosen by the Landlord
MANAGEMENT COMPANY ACCESS
(5) To allow the Management Company such rights over the Building as it
requires from time to time for the due and proper provision of the
Services
VAT INDEMNITY
(6) The provisions of schedule 8 shall apply in relation to VAT liability
on the rent first reserved and:-
(a) Whenever VAT is properly chargeable in respect of any supply made
hereunder by the Landlord to the Tenant the Landlord shall no
later than thirty days after the due date for payment in respect
of such supply issue a valid VAT invoice or audit note (as the
case may be) to the Tenant
(b) Subject to (6)(c) below all consideration payable by the Landlord
to the Tenant shall be exclusive of VAT which the Landlord shall
pay in addition on production of a valid VAT invoice
(c) The capital sum referred to in clause 3 above shall be inclusive
of VAT save that if the Landlord is at any stage able to recover
such VAT the Landlord shall pay to the Tenant a further amount
equal to VAT on the capital sum
25
NAMING RIGHTS
(7) The Landlord shall only name the Building in accordance with its
postal address from time to time
NOTIFICATION OF NOTICES
(8) The Landlord will inform the Tenant as soon as reasonably practicable
but in any event within 5 working days of receipt of the same of any
notice served by the Superior Landlord alleging a breach of the Head
Lease which would threaten the existence of this lease
6. PROVISION OF SERVICES
The Management Company covenants with the Tenant to use all reasonable
endeavours:-
(1) Well and substantially to repair and properly clean and decorate the
structure of the Building (including the structure of the roofs
foundations external and internal walls and columns and structural
slabs of the ceilings and floors) the external surfaces of the
Building (including the whole of the glazing within the external walls
of the Building) and the Common Parts and (where consistent with an
obligation to repair) to replace the same
(2) To keep the Service Media designed for common or general use and the
Landlord's Services Equipment in good and substantial repair and in
clean condition and at all times in good and safe working order
(3) To keep the lifts in the Building clean and in good and substantial
repair and condition and at all times in good and safe working order
(4) Provide heat and air conditioning and chilled water to the Premises
(subject to the Tenant paying Outside Normal Business Hours Charge in
relation to the provision of such services outside Normal Business
Hours) such heat being sufficient to maintain an air temperature in
the Premises measured at the main trunk connections to the floor as
follows:
Air Conditioning and Heating
Design Parameters:
External Conditions:
Summer 29C DB 20C WB
Winter -4C DB 100% relative humidity
Internal Conditions Office
Accommodation-
Summer 22C DB + 1C
Winter 20C DB minimum
Humidity Office Accommodation -
Summer 50% +/- 10%
Winter 5O%+/- 10%
(5) To ensure that the Common Parts are at all times kept clean tidy and
unobstructed
(6) Subject to clause 7(3) and clause 7(6) to provide or procure the
provision of electricity to the Premises and each and every part
thereof designed to receive the same to the extent necessary to meet
the reasonable requirements of the Tenant and other lawful occupiers
of the Premises
(7) To comply with the requirements of any statute (already or in the
future to be passed) or any government department local authority
other public or competent authority or court of competent jurisdiction
relating to the Building or any part for which any tenant or occupier
of the Building is not directly or exclusively liable
(8) To ensure that at all times (meaning for the avoidance of doubt 24
hours a day during the Term) there are both such security officers at
and patrolling the Building as is reasonably appropriate for premises
of the same size and nature as the Building and that the main
reception to the Building is properly and adequately manned
(9) To provide or procure the provision of:-
(a) the Services during Normal Business Hours; and
(b) such of the Services outside Normal Business Hours as in the
Management Company's reasonable discretion are appropriate to
provide to a high class office building in the City of London
outside Normal Business Hours; and
(c) such of the Services outside Normal Business Hours as the Tenant
shall previously request (but subject to the Tenant being
responsible for the Outside Normal Business Hours Charge)
(having regard in all cases to and in accordance with the overall
design standards for the Building as a whole and subject to the
limitations contained in Clause 7(6)) in an efficient and economic
manner and in accordance with good estate management provided that the
Management Company shall be entitled to employ such managing agents
professional advisers contractors and other persons as it shall from
time to time reasonably think fit for the purpose of the performance
of the Services
PROVIDED THAT the Management Company shall not be liable for:-
(without prejudice to the provisions of clause 7(3)) any closure of any of
the Common Parts or interruption in the provision of the Services or
stoppage or severance affecting any of the Service Media or any
interruption to the supply of electricity to the Premises or the Common
Parts or temporary closure or diversion of any of the Common Parts or
Service Media by reason of necessary inspection repair maintenance or
replacement thereof or any part thereof or any plant machinery equipment
installations or apparatus used in connection therewith or damage thereto
or destruction thereof by any risk
27
(whether or not an Insured Risk) or by reason of electrical mechanical or
other defect or breakdown or frost or other inclement conditions or
shortage of fuel materials supplies or labour or whole or partial failure
or stoppage of any mains supply due to any circumstances beyond the control
of the Management Company PROVIDED ALWAYS that the Management Company shall
use all reasonable endeavours to minimise the adverse effects of any such
circumstances and to remedy any such interruption closure or diversion as
soon as reasonably practicable PROVIDED FURTHER that in the event of the
Landlord or the Management Company being unable to provide air conditioning
or electricity to the Premises in such circumstances the Tenant shall be
entitled to carry out (the Landlord and Management Company affording the
Tenant reasonable access to do so) all necessary remedial works to such
electricity or air conditioning PROVIDED THAT:
(a) the Tenant shall carry out such works in a good and workmanlike manner
and make good all damage caused causing as little inconvenience to the
Landlord Management Company and other tenants as reasonably
practicable
(b) the Landlord or the Management Company shall be responsible for the
costs of the Tenant in carrying out such remedial works when such
works are being carried out as a consequence of any breach of the
Landlord's or Management Company's covenants hereunder
7. PROVIDED ALWAYS AND IT IS HEREBY AGREED AND DECLARED THAT:-
Forfeiture and re-entry
(1) Without prejudice to any other remedies and powers contained in this
lease or otherwise available to the Landlord if
(a) the whole or part of the rents shall be unpaid for twenty-one
days after becoming payable (whether or not formally demanded) or
(b) any of the Tenant's covenants in this lease are not performed or
observed in the manner and at the times herein specified or
(c) the guarantee granted by the Guarantor or any other guarantor of
the Tenant's obligations is or becomes unenforceable (in whole or
in part) for any reason whatsoever and no suitable alternative
security is provided to the Landlord within a period of one month
or
if the Tenant (or if more than one person any one of them):-
(d) being a company enters into liquidation whether voluntarily
(except for reconstruction or amalgamation of a solvent company)
or compulsorily or has a provisional liquidator or a receiver
(including an administrative receiver) appointed or its directors
pass a resolution to petition for an administration order or one
or more of them swears an affidavit in support of such a petition
or is the subject of an administration order or a petition for
one or of a voluntary arrangement or a proposal for one under
Part I Insolvency Act 1986
(e) being a company incorporated outside the United Kingdom is the
subject of any proceedings or event analogous to those referred
to in clause 7(1)(d) in the country of its incorporation
28
(f) being an individual is the subject of a bankruptcy petition or
bankruptcy order or of any application or order or appointment
under section 253 or section 273 or section 286 Insolvency Act
1986 or otherwise becomes bankrupt or insolvent or dies
the Landlord may at any time thereafter (and notwithstanding the
waiver of any previous right of re-entry) re-enter the Premises
without prejudice to the Tenant's right to relief against forfeiture
whereupon this lease shall absolutely determine but without prejudice
to either partys right of action against the other in respect of any
antecedent breach of the covenants in this lease
LETTING SCHEME USE AND EASEMENTS
(2) No letting or building scheme exists or shall be created in relation
to the Building and (subject only to those easements expressly granted
by this lease) neither the Tenant nor the Premises shall be entitled
to any easement or quasi-easement whatsoever and nothing herein
contained or implied shall give the Tenant the benefit of or the right
to enforce or to have enforced or to prevent the release or
modification of any right easement covenant condition or stipulation
enjoyed or entered into by any tenant of the Landlord in respect of
property not demised by this lease or prevent or restrict the
development or use of the remainder of the Building or any other land
COMMON PARTS AND SERVICE MEDIA
(3) Subject always to the rights of the local authority the relevant
supply authorities and any other competent authority the Common Parts
and the Service Media are at all times subject to the exclusive
control and management of the Landlord who may from time to time (if
it shall be necessary or reasonable to do so for the benefit of the
Building or otherwise in keeping with the principles of good estate
management) alter divert substitute stop up or remove any of them
(leaving available for use by the Tenant reasonable and sufficient
means of access to and egress from and servicing for the Premises)
SERVICE OF NOTICES
(4) (a) In addition to any other mode of service any notices to be served
under this lease shall be validly served if served in accordance
with section 196 Law of Property Act 1925 as amended by the
Recorded Delivery Service Act 1962 or (in the case of any notice
to be served on the Tenant) by sending it to the Tenant at the
Premises PROVIDED THAT whilst the Tenant hereunder is Donaldson
Lufkin & Jenrette International Limited such notice shall also be
served on the offices for the time being of SJ Berwin & Co
(attention: Edward Page) or such other firm of solicitors
notified in writing to the Landlord and 277 Park Avenue New York
New York 10172
(b) If the Tenant or any guarantor comprises more than one person it
shall be sufficient for all purposes if notice is served on one
of them but a notice duly served on the Tenant will not need to
be served on any guarantor
29
RENT CESSER
(5) If and whenever during the Term:-
(a) the Premises (other than the Tenant's plant and equipment and
tenant's fixtures) or the means of access to the Premises within
the Building are damaged or destroyed by any of the Insured Risks
so that the Premises are incapable of beneficial occupation and
use and
(b) subject to clause 5(2)(b)the insurance of the Building or the
payment of any insurance money has not been vitiated by the act
neglect default or omission of the Tenant or of any person
deriving title under or through the Tenant their respective
servants agents and invitees
the rent first reserved by this lease and the Service Charge or a fair
proportion of them according to the nature and extent of the damage
sustained shall be suspended and cease to be payable from the date of
destruction or damage until whichever is the earlier of the date on
which the Premises are reinstated to the Reinstatement Specification
and if applicable the essential means of access within the Building
are available and the date of expiry of the period for which insurance
of loss of rent is effected and any dispute about such suspension
shall be referred to the award of a single arbitrator to be appointed
in default of agreement on the application of the Landlord or the
Tenant to the President for the time being of The Royal Institution of
Chartered Surveyors in accordance with the Arbitration Acts 1950 and
1979
LANDLORD'S LIABILITY
(6) The Landlord shall not be liable for (without prejudice to the
provisions of clause 7(3)) any closure of any of the Common Parts or
stoppage or severance affecting any of the Service Media or any
interruption to the supply of electricity to the Premises or temporary
closure or diversion of any of the Common Parts or Service Media by
reason of necessary inspection repair maintenance or replacement
thereof or any part thereof or any plant machinery equipment
installations or apparatus used in connection therewith or damage
thereto or destruction thereof by any risk (whether or not an Insured
Risk) or by reason of electrical mechanical or other defect or
breakdown or frost or other inclement conditions or shortage of fuel
materials supplies or labour or whole or partial failure or stoppage
of any mains supply due to any circumstances beyond the control of the
Landlord PROVIDED ALWAYS that the Landlord shall use all reasonable
endeavours to minimise the adverse effects of any such circumstances
and to remedy any such interruption closure or diversion as soon as
reasonably practicable PROVIDED FURTHER that in the event of the
Landlord or the Management Company being unable to provide air
conditioning or electricity to the Premises in such circumstances the
Tenant shall be entitled to carry out (the Landlord and Management
Company affording the Tenant reasonable access to do so) all necessary
remedial works to such electricity or air conditioning PROVIDED THAT:
(a) the Tenant shall carry out such works in a good and workmanlike manner
and make good all damage caused causing as little inconvenience to the
Landlord Management Company and other tenants as reasonably
practicable)
30
(b) the Landlord or the Management Company shall be responsible for the
costs of the Tenant in carrying out such remedial works when such
works are being carried out as a consequence of any breach of the
Landlords or Management Company's covenants hereunder
ARBITRATION FEES
(7) The fees of any arbitrator incurred in any arbitration proceedings
arising out of this lease may be paid to the arbitrator by the
Landlord or by the Tenant notwithstanding any direction or prior
agreement as to liability for payment and any sums so paid for which
the party who pays them initially is not ultimately liable shall be
repayable on demand by the party who is liable for them
RENT REVIEW MEMORANDUM
(8) Forthwith after every agreement or determination of any increase in
the amount of the rent reserved and made payable by virtue of schedule
4 a memorandum recording the increase shall be attached to this lease
and to the counterpart and such memorandum shall be signed by or on
behalf of the Landlord and the Tenant respectively
NO WARRANTY AS TO USE
(9) Nothing contained in this lease shall constitute or be deemed to
constitute a warranty by the Landlord that the Premises are authorised
under Planning Law to be used or are otherwise fit for any specific
purpose
DISPUTES
(10) (a) Any dispute between the Tenant and any other tenant or occupier
of any part of the Building relating to any easement or right
affecting the Building or any part of it shall (unless the
Landlord shall by notice to the parties concerned renounce its
power to determine it) be referred to the Landlord whose decision
acting reasonably (acting in the capacity of an expert) shall be
binding upon the parties to the dispute but the Landlord shall
give written reasons for his decision
(b) Where any issue (other than one relating to a rent review)
arising out of or under or relating to the Head Lease which also
affects or relates to the provisions of this lease is to be
determined as provided in the Head Lease the determination of
such issue pursuant to the provisions of the Head Lease shall be
binding on the Tenant as well as the Landlord for the purposes
both of the Head Lease and this lease
COMPENSATION
(11) Except where any Enactment prohibits the right to compensation being
reduced or excluded by agreement, neither the Tenant nor any occupier
of the Premises shall be entitled on quitting them to claim from the
Landlord any compensation under the Landlord and Tenant Act 1954
31
RATEABLE VALUE APPEALS
(12) (a) If the Landlord or the Tenant intends to make a proposal to alter
the entry for the Premises in the local non-domestic rating list
it shall notify the other party of its intention and shall
incorporate in the proposal such proper and reasonable
representations as may be made by or on behalf of that party
(b) The Tenant shall not agree the level of rates liability
attributable to the Premises following the date hereof without
the Landlord's consent (such consent not to be unreasonably
withheld or delayed) PROVIDED that for the avoidance of doubt the
Landlord shall not be entitled to refuse its consent to any level
of rates which the Tenant has negotiated with the appropriate
rating authority which is lower than any level of rates
negotiated by or on behalf of the Landlord in respect of the
Building on a pro rata basis
NO WARRANTY AS TO SECURITY
(13) Nothing contained in this lease (and no exercise of any of the
Landlord's powers under this lease) shall constitute or be deemed to
constitute a warranty by the Landlord that the Premises shall be kept
secure or that any security service to the Common Parts shall be
effective
JURISDICTION
(14) This lease shall be governed by and construed in all respects in
accordance with the law of England and for the benefit of the Landlord
the English courts shall have exclusive jurisdiction in relation to
disputes arising under or connected with this lease and the Tenant
agrees that any process may be served on it by leaving a copy of the
relevant document at the Premises provided however that the Landlord
shall retain the right at its sole election to sue the Tenant
elsewhere including in the courts of the Tenant's domicile
OVERRIDING LEASE
(15) If at any time during the Term the Landlord shall grant a tenancy of
the reversion immediately expectant on the determination of this lease
whether pursuant to Section 19 Landlord and Tenant (Covenants) Act
1995 or otherwise any covenant on the part of the Tenant to obtain the
consent of the Landlord under this lease to any dealing shall be
deemed to include a further covenant also to obtain the consent of the
lessor under such tenancy to such dealing
8. LANDLORD'S GUARANTOR
(1) The Landlord's Guarantor at the request of the Landlord and in
consideration of the Tenant agreeing to take this lease covenants and
agrees with the Tenant that all of the Landlord's obligations
contained in this lease will be performed and observed in the manner
and at the times herein specified and that if there is default in
performing and observing any of the Landlord's obligations
(notwithstanding any time or indulgence granted by the Tenant to the
Landlord or compromise, neglect or forbearance on the part of the
Tenant in enforcing the observance of the Landlord's obligations in
this lease) the Landlord's Guarantor
32
will observe and perform (or procure the performance and observance
of) the obligations in respect of which the Landlord shall be in
default
(2) The Landlord's Guarantor at the request of the Management Company and
in consideration of the Tenant agreeing to pay the Service Charge
covenants and agrees with the Tenant that all of the Management
Company's obligations contained in this lease will be performed and
observed in the manner and at the times herein specified and that if
there is default in performing and observing any of the Management
Company's obligations (notwithstanding any time or indulgence granted
by the Tenant to the Management Company or compromise, neglect or
forbearance on the part of the Tenant in enforcing the observance of
the Management Company's obligations in this lease) the Landlord's
Guarantor will observe and perform (or procure the performance and
observance of) the obligations in respect of which the Management
Company shall be in default
9. TENANT'S OPTION TO DETERMINE
(1) The Tenant may (subject to compliance with the provisions of this
clause) determine this lease as at 24th October 2008
(2) If the Tenant wishes so to determine the Tenant shall give to the
Landlord the Termination Notice such notice to expire on 24th October
2008
(3) If the Tenant duly serves the Termination Notice it shall procure that
vacant possession of the Premises will be available on 24th October
2008 free of occupation by and of any estate or interest rested in the
Tenant or any third party and this lease shall not determine as a
result of any notice served by the Tenant if the Tenant is in material
breach of any of its covenant to pay the rents and Interim Sum
contained in this lease (including those contained in this sub-
clause) as at 24th October 2008 except to the extent if at all the
Landlord in its absolute discretion waives compliance with any of them
10. GUARANTEE AND GUARANTOR'S INDEMNITY
The Guarantor at the request of the Tenant and in consideration of the
grant of this lease covenants and agrees with the Landlord and during the
Term and any period of holding over continuation or extension thereof
whether by an Enactment common law or otherwise (subject to clause 4(15)):-
(1) The rents reserved by this lease (whether or not ascertained as to
amount) will be duly paid and that all the Tenant's obligations
contained in it will be performed and observed in the manner and at
the times herein specified and that if there is any default in paying
the rents or in performing and observing the Tenant's obligations
(notwithstanding any time or indulgence granted by the Landlord to the
Tenant or compromise neglect or forbearance on the part of the
Landlord in enforcing the observance and performance of the Tenant's
obligations in this lease or any refusal by the Landlord to accept
rents tendered by or on behalf of the Tenant) the Guarantor will
observe and perform the obligations in respect of which the Tenant
shall be in default and will on demand and on a full indemnity basis
pay to the Landlord an amount equivalent to the rents or other amounts
not paid and/or any loss damage costs charges expenses or any other
liability incurred or suffered by the Landlord as a result of the
default (and in the event of non-payment shall pay interest at the
Interest Rate from the date of demand to the
33
Guarantor until the date of payment) and will otherwise indemnify and
hold harmless the Landlord against all actions claims costs damages
demands expenses losses and proceedings arising from or incurred by
the Landlord as a result of such non-performance or non-observance
(2) If any liquidator or other person having power to do so disclaims this
lease or if it shall be forfeited or if the Tenant ceases to exist and
if the Landlord by written notice served within three months after the
date of disclaimer or forfeiture or the Landlord having actual
knowledge of the cesser of existence of the Tenant (each a "Trigger
Event") requires the Guarantor to accept a lease of the Premises for a
term computed from the date of the Trigger Event to the date on which
the Term would have expired by effluxion of time and at the same rents
and subject to the same covenants stipulations conditions and
provisions (except that the Guarantor shall not be required to procure
that any other person is made party to that lease as guarantor) as are
reserved by and contained in this lease immediately before the Trigger
Event and with coincidental Review Dates (the said new lease and the
rights and liabilities thereunder to take effect as from the date of
such Trigger Event) the Guarantor shall forthwith accept such lease
accordingly and execute and deliver to the Landlord a counterpart of
it and indemnify the Landlord upon demand against the costs incurred
on the grant of the new lease
(3) The liability of the Guarantor hereunder shall not be released reduced
affected or prejudiced by reason of:-
(a) any variation or waiver of or addition to the terms of this lease
or any of them agreed between the Landlord and the Tenant or
(b) the surrender by the Tenant of part of the Premises (in which
event the liability of the Guarantor shall continue in relation
to the Tenant's obligations in respect of the part of the
Premises not so surrendered) or
(c) any legal limitation immunity disability incapacity occurrence of
insolvency or the winding-up of the Tenant or
(d) (without limitation to the foregoing) of any other act or thing
act or thing by which (but for this provision) the Guarantor
would have been discharged or released (in each case in whole or
in part) from liability under this guarantee and indemnity
or any combination of any two or more of such matters
(4) If a Trigger Event occurs and for any reason the Landlord does not
require the Guarantor to accept a new lease of the Premises in
accordance with clause 8(2) the Guarantor shall pay to the Landlord on
demand (in addition to any other loss damage costs charges expenses or
other liability which the Guarantor may be required to make good
hereunder and without prejudice to any other rights of the Landlord)
an amount equal to the rents which would have been payable hereunder
but for such Trigger Event (so far as such rents do not otherwise
continue to be payable) for the period commencing on the date of such
Trigger Event and ending on whichever is the earlier of the date one
year after the date of such Trigger Event and the date (if any) upon
which rent is first payable in respect of the whole of the Premises on
a reletting thereof
34
(5) Without prejudice to the rights of the Landlord against the Tenant the
Guarantor shall be a principal obligor in respect of its obligations
under this clause and not merely a surety and accordingly the
Guarantor shall not be discharged nor shall its liability hereunder be
affected by any act or thing or means whatsoever by which its said
liability would not have been discharged if it had been a primary
debtor
(6) The Guarantor shall pay all reasonable charges (including legal and
other costs on a full indemnity basis) incurred by the Landlord in
relation to the Landlord's enforcement of this guarantee and indemnity
against the Guarantor or for enforcing payment by the Guarantor of
amounts indemnified by it hereunder
(7) The Landlord may at its option enforce the terms of this guarantee and
indemnity against the Guarantor without having first enforced the
covenants and terms of this lease against the Tenant and also without
first having recourse to any other rights or security which the
Landlord may have obtained in relation to this lease
(8) The Guarantor shall not be entitled to participate in any security
held by the Landlord in respect of the obligation of the Tenant under
this lease or to any right of subrogation in respect of any such
security until all the obligations owed to the Landlord by the Tenant
and the Guarantor hereunder have been fully and unconditionally
fulfilled and discharged
(9) The Guarantor shall not claim in any liquidation bankruptcy
composition or scheme of arrangement in respect of the Tenant in
competition with the Landlord and if and to the extent that it
receives the same shall remit to (and until remission shall hold in
trust for) the Landlord all and any monies received from any
liquidator trustee receiver or out of any composition or arrangement
or from any supervisor thereof until all the obligations of the Tenant
and the Guarantor hereunder owed to the Landlord have been fully and
unconditionally fulfilled and discharged
(10) This guarantee and indemnity shall enure for the benefit of the
Landlord's successors in title under this lease without the necessity
for any assignment thereof
(11) While Donaldson, Lufkin & Jenrette International Limited remains the
Tenant this guarantee and indemnity shall only apply if and for so
long as the total shareholders funds and reserves of Donaldson, Lufkin
& Jenrette International Limited are or fall below the value of Fifty
million pounds (pounds sterling 50,000,000) AND Donaldson, Lufkin &
Jenrette International Limited and Donaldson, Lufkin & Jenrette Inc.
shall notify the Landlord at the beginning of each period in which
this guarantee and indemnity applies and again when it ceases to apply
AND for the avoidance of doubt this guarantee (subject to compliance
by the Tenant with clause 4(15)) shall automatically cease on any
lawful assignment of this lease (but without prejudice to either
party's rights against the other in respect of any antecedent breaches
of this lease) unless in the circumstances contemplated by clause
4(l5)(g)(ii)(b) it is reasonable for Donaldson Lufkin & Jenrette Inc.
to remain the guarantor hereunder of the liabilities of Donaldson,
Lufkin & Jenrette International Limited PROVIDED FURTHER that
Donaldson, Lufkin & Jenrette Inc shall in such circumstances
automatically be released on a second assignment of this lease
35
11. STAMP DUTY CERTIFICATE
It is hereby certified that there is no agreement for lease to which
this lease gives effet
IN WITNESS whereof this Deed has been executed by the parties hereto and is
intended to be and is hereby delivered on the date first above written
36
SCHEDULE 1
(THE PREMISES)
ALL THOSE office premises situate on the twenty-sixth floor and being part of
the Building which are shown on the Plans and thereon verged red for
identification purposes only ALL which premises include:-
(a) the plaster linings and other interior coverings and facing materials of
all walls and of any columns within or bounding the said premises
(b) the screed the raised floor the fixed and unfixed floor coverings and all
materials lying between the upper surface of the structural floor slab
and the raised floor surface
(c) the ceilings including all materials forming part of them lying and the
void space (if any) above such ceilings but below the lower surface of
the structural ceiling slab
(d) all non-load bearing walls lying within the said premises
(e) all plant and other apparatus and conducting media which are designed to
serve the said premises exclusively including any which the Landlord may
permit under clause 4(14) and whose operation does not have any impact on
the central building systems
(f) the following items supplied and fitted by the Landlord:-
(i) venetian horizontal perforated blinds on the inside of the external
windows of the Premises
(ii) electricity check meter
but exclude:-
(i) all Service Media and Landlord's Services Equipment and
(ii) the load bearing structure of the Building including the load bearing
structure of the roofs foundations external and internal walls and
columns and the structural slabs of the ceilings and floors and
(iii) the external surfaces of the Building and the whole of the window
glazing and window frames and other fenestration units constructed in
the external walls and in the other boundaries of the said premises
SCHEDULE 2
(EASEMENTS AND RIGHTS GRANTED)
1. The right in connection with the Permitted Use subject to the provisions
of clause 7(3) and subject to compliance with all reasonable rules and
regulations in connection with the exercise of such right as may be
prescribed from time to time by the Landlord:-
(1) for the Tenant its employees servants and duly authorised agents
invitees and visitors for the purpose only of ingress and egress to
and from the Premises to use the Common Parts and to use all means
of escape but only when needed in an emergency and
(2) to use the Service Media
37
2. The right of support shelter and protection for the Premises from any
adjoining or neighbouring parts of the Building as enjoyed by the
Premises at the date of this lease
3. The right to have displayed the name or trading style of the Tenant and
any authoried sub-tenants or permitted occupiers (subject to a maximum of
four names at any particular time) on the signboard in the entrance lobby
of the Building provided by the Landlord pursuant to paragraph 14 of
Part I of schedule 6 and the right to install a sign displaying the name
of the Tenant at the entrance to the Premises the precise location size
and style of such sign to be subject to the approval of the Landlord
(such approval not to be unreasonably withheld or delayed)
4. The right to install a supplementary air conditioning system and UPS
within the 14th floor plant area in the Building in a manner and in a
location to be approved by the Landlord such approval not to be
unreasonably withheld or delayed (in accordance with the provisions of
clause 4(12)) and a right of access to such 14th floor plant area at all
reasonable times on reasonable prior notice (save in the case of
emergency) for repair and maintenance and PROVIDED that on determination
of the Term the Tenant shall remove any such installation and reinstate
the plant room area to the reasonable satisfaction of the Landlord
(making good all damage caused in such removal)
5. The right to use and to have reasonable access for repair and maintenance
(on reasonable prior written notice to the Landlord) those works or
installations within or on the Building (but outside the Premises) for
which consent has been given pursuant to the Agreement for Initial
Alterations
6. The exclusive right to use the lavatories on the same floor as the
Premises subject to the Tenant being responsible for all elements of
Service Cost relating to such toilets should any other tenant of
accommodation in the Building object to meeting any proportion of Service
Cost in relation to such facilities (on the basis of such exclusive use)
SCHEDULE 3
(EXCEPTIONS AND RESERVATIONS)
1. The right to build alter or extend (whether vertically or laterally) any
building notwithstanding that the access of light and air or either of
them to the Premises and the lights windows and openings thereof may be
affected
2. The right at reasonable times on reasonable prior written notice (except
in an emergency where no notice need be given) to enter upon the Premises
as often as may be necessary for the purpose of complying with the
covenants of the Head Lease for all the purposes for which the Tenant
covenants in this lease to permit entry and for all purposes in
connection with the carrying out of the Services and for the purposes of
complying with any statutory requirements
3. The right to use and to construct inspect maintain repair divert and
otherwise alter stop up and relay and to make connections to any Service
Media in on or under the Premises at any time during the Term for the
benefit of any other part of the Building or any adjacent or neighbouring
land
4. The right to erect and maintain scaffolding on or against any part of the
Building so long as reasonable and sufficient means of access to and
egress from and servicing the Premises are maintained
38
5. All rights of light air and other easements and rights (but without
prejudice to those expressly granted by this lease) enjoyed by the
Premises from or over any other part or parts of the Building or any
adjacent or neighbouring land
6. The right of support protection and shelter for the benefit of other
parts of the Building from the Premises
7. The right for one or more members of any security staff employed by the
Landlord or its agents at any time or times on reasonable prior notice
(save in the case of emergency where no notice is required) to enter the
Premises if it shall be considered necessary or desirable so to do in
connection with the security of the Building
8. The right for the tenant or occupier of any other part of the Building
authorised by the Landlord having first given reasonable written notice
to the Tenant at reasonable times in the daytime and at any time and
without notice in case of emergency to enter the Premises for the purpose
of repairing that other part of the Building making good any damage so
caused to the reasonable satisfaction of the Tenant
9. The rights reserved to the Superior Landlord (by covenant or by express
reservation) in the Head Lease
PROVIDED ALWAYS THAT if the Landlord or its employees or the persons
authorised by the Landlord exercises any of the rights by carrying out work on
the Premises it shall cause as little inconvenience as possible and as soon as
reasonably practicable make good any damage caused to them unless the right
has been exercised because of some breach by the Tenant or by any person
claiming through it
SCHEDULE 4
(THE FIRST RESERVED RENT AND THE REVIEW THEREOF)
1. In this schedule the following expressions have the respective specified
meanings:-
(1) "Current Rent" means the amount of the yearly rent first reserved
by this lease payable immediately before the relevant Review Date
(2) "Review Rent" means the yearly market rent which might reasonably
be expected to be payable following the expiry of any period at the
beginning of the term which might be negotiated in the open market
for the purposes of fitting out during which no rent or a
concessionary rent is payable or following the payment of any
capital sum or fitting out contribution which might be negotiated
in the open market for the purposes of fitting out (and on the
assumption that the lessee has had the benefit of such rent free or
concessionary rent period or capital sum or fitting out
contribution and has used the same fully to fit out the Premises
for the Permitted Use to the lessee's particular requirements) if
the Premises had been let in the open market by a willing lessor to
a willing lessee with vacant possession on the relevant Review Date
without fine or premium for a term of ten years computed from the
relevant Review Date taking into account the lessee's right at the
expiration of the term to be granted a new tenancy under Part II
Landlord and Tenant Act 1954 and otherwise upon the provisions
(save as to the amount of the rent first reserved by this lease but
including the provisions for rent review at five-yearly intervals)
contained in this lease and on the assumption if not a fact that
the said provisions have been fully complied with and on the
further assumptions that:-
39
(a) the Permitted Use and the Premises comply with Planning Law
and every other Enactment free from any onerous condition
restriction and limitation and that the lessee may lawfully
implement and carry on the Permitted Use
(b) no work has been carried out to the Premises which has
diminished their rental value
(c) in case the Building or any part of it has been destroyed or
damaged it has been fully restored
(d) the Premises have been fitted out to no less standard than
that set out in the Reinstatement Specification
but disregarding any effect on rent of:-
(i) the fact that the Tenant or any underlessee or other
permitted occupier or their respective predecessors in title
has been or is in occupation of the Premises
(ii) any goodwill attached to the Premises by the carrying on in
them of the business of the Tenant or any underlessee or
their respective predecessors in title or other permitted
occupier
(iii) (without prejudice to paragraphs 1(2)(b) and l(2)(c) of this
schedule) any works carried out to the Premises during the
Term by the Tenant or any permitted underlessee in either
case at its own expense in pursuance of a licence granted by
the Landlord where required and otherwise than in pursuance
of any obligation to the Landlord
(iv) the works carried out to the Premises by the Tenant or
carried out by the Landlord at the expense of the Tenant
pursuant to the Agreement for Initial Alterations
(3) "Review Surveyor" means an independent chartered surveyor appointed
pursuant to paragraph 3(1) of this schedule and if to be nominated
by or on behalf of the President for the time being of the Royal
Institution of Chartered Surveyors the said President to be
requested to nominate an independent chartered surveyor having not
less than ten years practice in the City of London next before the
date of his appointment and recent substantial experience in the
letting and valuation of office premises of a similar character and
quality to those of the Premises and who is a partner or director
of a leading firm or company of surveyors having specialist market
and valuation knowledge of such premises
2. The yearly rent first reserved and payable from each Review Date until
the next following Review Date or (in the case of the period commencing
on the last Review Date during the Term) until the expiry of the Term
shall be the higher of:-
(1) the Current Rent (ignoring for this purpose any rent cesser
pursuant to clause 7(5)) and
(2) the Review Rent
40
3. If the Landlord and the Tenant shall not have agreed the Review Rent by
the date three months before the relevant Review Date it shall (without
prejudice to the ability of the Landlord and the Tenant to agree it at
any time) be assessed as follows:-
(1) the Review Surveyor shall (in the case of agreement about his
appointment) be forthwith appointed by the Landlord or the Tenant
to assess the Review Rent or (in the absence of agreement at any
time about his appointment) be nominated to assess the Review Rent
by or on behalf of the President for the time being of The Royal
Institution of Chartered Surveyors on the application of the
Landlord or the Tenant
(2) Unless the Landlord and the Tenant agree that the Review Surveyor
shall act as an expert (which after the appointment has been made
they may not do save with the consent also of the Review Surveyor)
he shall act as an arbitrator and the arbitration shall be
conducted in accordance with the Arbitration Acts 1950 and 1979
(3) If the Review Surveyor is appointed as an expert he shall be
required to give notice to the Landlord and the Tenant inviting
each of them to submit to him within such time limits as he shall
stipulate a proposal for the Review Rent supported (if so desired
by the Landlord or the Tenant) by any or all of:-
(i) a statement of reasons
(ii) a professional rental valuation and (separately and later)
(iii) submissions in respect of each other's statement of reasons
and valuation
but he shall not be bound thereby and shall make the determination
in accordance with his own judgment (including any determination
concerning any party's liability for the costs of the reference to
him) save in respect of points of law
(4) If the Review Surveyor whether appointed as arbitrator or expert
refuses to act or is or becomes incapable of acting or dies the
Landlord or the Tenant may apply to the President for the further
appointment of another Review Surveyor
4. If the Review Rent has not been agreed or assessed by the relevant Review
Date the Tenant shall:-
(1) continue to pay the Current Rent on account and
(2) pay the Landlord within seven days after the agreement or
assessment of the Review Rent the amount (if any) by which the
Review Rent for the period commencing on the relevant Review Date
and ending on the quarter day following the date of payment exceeds
the Current Rent paid on account for the same period plus interest
at three per cent below the Interest Rate for each installment of
rent due on and after the relevant Review Date on the difference
between what would have been paid on that rent day had the Review
Rent been fixed and the amount paid on account (the interest being
payable from the date on which the installment was due up to the
date of payment of the shortfall)
S. If any Enactment restricts the right to review rent or to recover an
increase in rent otherwise payable then when the restriction is released
the Landlord may at any time within six months after the date of release
give to the Tenant not less than one month's
41
notice requiring an additional rent review as at the next following
quarter day which shall for the purposes of this lease be a Review Date -
SCHEDULE S
(THE SERVICE CHARGE)
1. In this schedule:
"ACCOUNTING PERIOD" means the period from and including 1st January to
and including 31st December in any year or such other period of twelve
months as the Management Company shall reasonably determine from time to
time
"EXPERT" means a chartered surveyor experienced in the administration
and apportionment of service charges for buildings similar to the
Building as agreed upon by the Management Company and the Tenant or on
failure to agree appointed at the request of either party by the
President Provided that where an Expert has previously been agreed or
appointed in relation to any matter in connection with the Service Cost
or the allocation of the Service Cost between the tenants of the
Building (whether or not pursuant to the terms of this Underlease) the
Management Company or the Tenant shall be entitled if reasonable to
require that the same Expert be appointed
"INTERIM SUM" means a fair and reasonable yearly sum assessed by the
Management Company acting reasonably on account of the Service Charge
for each Accounting Period being a fair and reasonable estimate of the
Service Charge payable by the Tenant in respect of that Accounting
Period
"RESERVE" means the total of the amounts received by the Management
Company in respect of the matters referred to in paragraph 2(B) of this
schedule
"SERVICE CHARGE" means the proportion or proportions of the Service Cost
attributable to the Premises determined in accordance with the
provisions of this schedule payable from the date hereof
"SERVICE CHARGE CERTIFICATE" means a certificate showing the Service
Cost and Service Charge for each Accounting Period served pursuant to
paragraph 5 of this schedule and prepared by the Management Company's
surveyor or auditor
"SERVICE COST" means the total sum calculated in accordance with
paragraph 2 of this schedule
2. The Service Cost shall be the total of:-
(A) the reasonable cost properly incurred by the Management Company in
any Accounting Period in carrying out or procuring the carrying out
of the Services and providing each item of the Services including
(without prejudice to the generality of the foregoing) the costs
and expenses set out in Part II of schedule 6 (insofar as the same
are reasonable and properly incurred) and any other reasonable
costs and expenses properly incurred by the Management Company or
with the Management Company's authority in connection with the
Services but excluding for the avoidance of doubt
(i) any costs attributable to the provision of any of the
Services outside Normal Business Hours at the specific
request of the Tenant (which shall
42
be charged direct to the Tenant) or of any other tenant or
tenants of the Building and
(ii) any Value Added Tax which the Management Company may incur
of and incidental to the provision of the Services and which
is recoverable as input tax by the Management Company
(iii) any cost or expense incurred in making good any damage caused
by any of the Insured Risks
(B) an amount (to be revised annually by the Management Company at its
reasonable discretion) to be charged in any Accounting Period as a
contribution to the establishment and maintenance of a reserve
towards the estimated cost to the Management Company of the
provision of the Services such amount to be ascertained on the
assumption (inter alia) that the cost of replacement of items of
plant machinery equipment and other capital items is calculated on
such life expectancy of the said items as the Management Company
may from time to time reasonably determine to the intent that a
fund be accumulated sufficient to cover the cost of replacement of
the said items by the end of their anticipated life
PROVIDED THAT nothing herein contained shall oblige the Management
Company to maintain the Reserve or a reserve sufficient to cover the
whole of the cost of replacement of any plant machinery equipment or
other capital items and provided further that any expenditure on any
items in respect of which any sums shall have been included in the
Reserve during an Accounting Year shall at the Management Company's
reasonable discretion as to the amount thereof if any be met out of the
Reserve AND PROVIDED THAT in respect of any costs or expenses not
incurred exclusively in connection with the provision or carrying out of
the Services a fair proportion only of such costs and expenses shall be
included in the Service Cost
3. (A) The Service Charge payable by the Tenant for any Accounting Period
shall be a fair proportion of the Service Cost attributable to the
Premises from time to time as properly determined by the Management
Company (and so in proportion for any Accounting Period not falling
wholly within the Term the Service Cost in any such case being
deemed to accrue on a day to day basis for the purpose of
apportionment)
(B) If at any time and from time to time during the Term the method or
basis of calculating or ascertaining the cost of any item of the
Services shall alter or the basis of calculating or ascertaining
the Service Cost in relation to any item of the Services shall
change and as a result it is reasonable that there be an alteration
or variation of the calculation of the Service Charge in order to
achieve a fairer and better apportionment of the Service Cost
amongst the tenants of the Building then and in every such case the
Management Company shall vary and amend the Service Charge and make
appropriate adjustments thereto provided always that in the event
of any dispute between the Management Company and the Tenant and
the other tenants of the Building or any of them the same shall be
referred to the Expert for determination (the Expert to act as an
expert and not as an arbitrator) whose decision shall save in the
case of manifest error be binding on the parties (including his
decisions as to the responsibility for his costs)
(C) The fair proportion to be determined by the Management Company in
paragraph 3(A) above shall be determined on the basis that all
accommodation within the
43
Building let or occupied or designed contracted or adapted for
letting or occupation (other than management accommodation) is
fully let on terms which include service charge provisions
consistent with the service charge provisions contained in this
lease (save where otherwise specified herein) and such proportion
shall not be increased or altered by reason of the fact that at
any time any part of such accommodation may be vacant or that any
tenant or other occupier of any other part of the Building may
default in payment of its due proportion of the Service Cost
4. (A) The Tenant shall pay to the Management Company the Interim Sum
without deduction by equal quarterly instalments in advance on the
usual quarter days unless the Management Company shall reasonably
anticipate that amounts to be incurred during the year immediately
next following are anticipated as being incurred in accordance with
a programme of non equal expenditure in which event the Management
Company shall serve notice to such effect upon the Tenant and shall
thereupon be entitled to require amounts of the Interim Sum to be
paid by advance quarterly instalments of unequal amounts reasonably
stipulated by the Management Company
(B) The Management Company shall be entitled to require as part of the
Interim Sum payments in advance on account of the cost of the
consumption of and supply charges in respect of electricity
consumed within the Premises (save for any amounts which are
invoiced directly by London Electricity plc to the Tenant) such
sums not to exceed a fair and proper estimate of amounts reasonably
anticipated by the Management Company as falling due within the
next quarter
(C) If the Tenant consistently requests the provision of any of the
Services outside Normal Business Hours the Management Company shall
be entitled in addition to require the Tenant to pay along with
payments of the Interim Sum a fair and proper estimate of amounts
likely to be payable by the Tenant in the next quarter on account
of such Services in accordance with the terms of this lease
(D) The Interim Sum for the Accounting Period ending 31st December 1996
shall be pounds sterling 74,000
(E) Either before or as soon as practicable after the commencement of
every Accounting Period the Management Company shall serve or cause
to be served on the Tenant written notice of the Interim Sum for
the relevant Accounting Period Provided that without prejudice to
the provisions of paragraphs 6 and 7 of this schedule if the
written notice aforesaid shall be served after the first occurring
quarter day in the relevant Accounting Period the Tenant shall
until service of the written notice aforesaid make payments on
account of the Interim Sum for the relevant Accounting Period on
the days and in the manner provided by sub-paragraph (A) of this
paragraph of this schedule at an annual rate equal to the Interim
Sum for the immediately preceding Accounting Period
5. (A) As soon as practicable after the expiry of every Accounting Period
(and in any event within 4 months after such expiry) the Management
Company shall serve or cause to be served a Service Charge
Certificate on the Tenant for the relevant Accounting Period
44
(B) A Service Charge Certificate shall contain a summary of the Service
Cost in respect of the Accounting Period to which it relates and
the relevant calculations showing the Service Charge
(C) The Tenant may request further details of the breakdown of the
expenditure under any particular item or items shown in a Service
Charge Certificate by giving notice thereof in writing to the
Management Company within three months of the date of service on
the Tenant of the relevant Service Charge Certificate and upon
receipt of such a notice the Management Company shall furnish to
the Tenant all such relevant details in its possession or control
or which can reasonably be obtained by it as relate to the
expenditure under the item or items in question at the cost of the
Tenant (include all books of account receipts demands and invoices)
PROVIDED ALWAYS that notwithstanding the giving of any such notice
the Tenant shall nevertheless pay all Interim Sums and Service
Charges as and when they fall due or as may be underpaid from time
to time (but without prejudice to any challenge claim or dispute
that the Tenant may have made or may make in the future in respect
of its Service Charge liability or otherwise)
6. Within fourteen days after the service on the Tenant of a Service Charge
Certificate showing that the Service Charge for any Accounting Period
exceeds the Interim Sum for that Accounting Period the Tenant shall
(without prejudice to any challenge claim or dispute as aforesaid) pay to
the Management Company or as it shall direct a sum equal to the amount by
which the Service Charge exceeds the Interim Sum provided that and the
Tenant hereby acknowledges that if there shall be any such excess in
respect of the Accounting Period the amount of such excess shall be a
debt due from the Tenant to the Management Company and in the event that
such excess is not received in cleared funds by the Management Company
within 14 days of the due date for payment it shall attract interest at
the Interest Rate calculated for the period commencing on the due dates
for payment and ending on the date the sum is subsequently received by
the Management Company notwithstanding that the Term may have expired or
been determined before the service by or on behalf of the Management
Company of the relevant Service Charge Certificate
7. If in any Accounting Period the Service Charge is less than the Interim
Sum for that Accounting Period a sum equal to the amount which the
Interim Sum exceeds the Service Charge shall be accumulated by the
Management Company and shall be applied in or towards the Service Charge
for the next following Accounting Period or Accounting Periods or at or
after the end of the Term repaid to the Tenant within 14 days after
preparation of the Service Charge Certificate and the event that the
excess is not received by the Tenant on the due date for payment it shall
attract interest at the Interest Rate for the period commencing as the
due date for payment and ending on the date that the sum due is received
in cleared funds by the Tenant
8. Unless challenged by the Tenant pursuant to the provisions of paragraph 9
of this schedule every notice certificate calculation determination or
assessment made by or on behalf of the Management Company referred to in
this schedule shall (save where a manifest error appears) be conclusive
and binding upon the parties hereto
9. The Tenant (acting reasonably) may at any time within six months after
the submission of a Service Charge Certificate challenge it on any
reasonable ground (including without limitation on the ground that the
Service Charge therein stated exceeds the Service Charge which should
have been payable had the provisions of this lease been properly
45
adhered to) Provided that the Tenant gives notice with full particulars
of its ground of alleged challenge and in any such case:
(A) any sum due to or payable by the Management Company pursuant to
paragraphs 6 and 7 above shall still be paid or allowed pending
resolution of the Tenant's challenge as if the Service Charge
Certificate were correct
(B) the Management Company and the Tenant shall endeavour to resolve
the relevant issue but if they cannot do so the issue in dispute
shall be referred to the Expert (acting as an expert and not an
arbitrator) whose decision shall save in the case of manifest error
be binding on the parties (including his decision as to the
responsibility for his costs)
(C) such adjustments to the Service Charge Certificate as may be
required to be made in consequence of the resolution of the dispute
shall be paid as soon as reasonably practicable after such
resolution and any sum due to or payable by the Management Company
shall then be paid or allowed (as the case may be) immediately
together with interest at three per cent below the Interest Rate on
such sum during the period which it has been underpaid or overpaid
10. All sums obtained from the Tenant and any other tenants or occupiers of
the Building towards the Service Cost and sums collected in respect of
the Reserve shall each be placed in separate interest bearing designated
deposit accounts to be applied only towards the cost of providing the
Services and all interest accrued on such deposit account shall be
credited (net of tax) to the account
11. The Management Company will account to the Landlord as soon as
practicable following expiry of each Accounting Period for that part of
the Service Charge which relates to costs directly incurred by the
Landlord and not by the Management Company including (but not limited
to) the costs referred to in paragraphs 5 7 8 9 and 12 of Part II of
schedule 6
12. If in the Management Company's reasonable discretion any of the Services
have to be provided to a greater extent (or the cost of provision of
such Services is greater) than would normally apply in the context of
the general management of the Building in accordance with this lease as
a result either:-
(a) of a specific request by the Tenant (with or without other tenants
or occupiers of accommodation in the Building); or
(b) where such provision is required in the interests of good estate
management as a result of any acts or omissions of the Tenant in
relation to its use and occupation of the Premises
then the Management Company shall be entitled to require the Tenant to
meet the cost of such provision (or a fair proportion thereof determined
by the Management Company) within 10 working days following a demand by
the Management Company
46
SCHEDULE 6
(SERVICES)
PART I
1. Inspecting maintaining repairing amending altering and (where consistent
with an obligation to repair) rebuilding and renewing and where
appropriate treating washing down painting and decorating all load
bearing and other structural parts of the Building and the relevant
parts of it described in paragraphs (ii) and (iii) of schedule 1
2. Inspecting servicing maintaining operating and repairing and (where
consistent with an obligation to repair) renewing amending overhauling
and replacing the Landlord's Services Equipment and all other apparatus
plant machinery and equipment within the Building (if any) from time to
time excluding any "stand alone" systems installed by the Tenant or any
other tenant or occupier of the Building
3. Inspecting servicing maintaining operating repairing cleansing emptying
amending altering and renewing overhauling and replacing all Service
Media
4. Keeping the Common Parts and the car park within the Building properly
cleansed decorated treated maintained and lit to such standard as the
Management Company may from time to time consider adequate but the Common
Parts and the car park shall be operational 24 hours a day 7 days a week
5. Providing such mechanical ventilation heating and (if deemed reasonably
desirable by the Management Company) cooling for such parts of the
Building and for such hours and times of the year (subject to clause 6)
as the Management Company shall in its discretion reasonably determine
save that such mechanical ventilation heating and cooling for the lifts
lobby and entrance halls and toilets shall be provided throughout Normal
Business Hours and at the request of the Tenant outside those hours
subject to the Outside Normal Business Hours Charge
6. Providing and maintaining at the Management Company's discretion any
furniture architectural or ornamental features or murals and any
horticultural displays plants shrubs trees or garden area in the Common
Parts and maintaining the same
7. Supplying whether by purchase or hire and maintaining (and where
consistent with an obligation to repair) renewing replacing repairing
servicing and keeping in good and serviceable order and condition all
fixtures and receptacles appliances materials equipment plant and other
things which the Management Company may reasonably deem desirable or
necessary for the maintenance appearance upkeep or cleanliness of the
Building or any part of it or otherwise in connection with the provision
of the Services
8. Cleaning as frequently as the Management Company shall in its reasonable
discretion consider adequate the exterior and interior of all window
glazing and window frames and other fenestration units in the Common
Parts and the outside of the window glazing referred to in paragraph
(iii) of schedule 1 and the maintenance cleansing repair inspection and
(where necessary) renewal or replacement of all window cleaning) cradles
carriageways and runways
9. Providing a security service 24 hours a day to the Common Parts
(including the ground floor entrance hall at times when receptionists
are not present) and the car park within the Building including where
reasonably appropriate in the Management Company's
47
judgment closed circuit television and/or other plant and equipment for
the purpose of surveillance and supervision of users of the Building
10. Disposing of refuse from the Building (including collecting and
compacting or otherwise treating or packaging as the Management Company
reasonably thinks fit such refuse and if necessary pest control) and (and
where consistent with an obligation to repair) the provision repair
maintenance and renewal of any plant and equipment in connection
therewith
11. Maintaining 24 hours a day 7 days a week an adequate supply of hot and
cold water and supplying washing and toilet requisites in the lavatory
accommodation in the Building
12. Such rodent or other pest control in the Building as the Management
Company shall reasonably consider necessary or desirable
13. Providing one or more receptionists and/or security in the ground floor
entrance hall of the Building 24 hours a day 7 days a week
14. Providing and maintaining a signboard in the entrance lobby of the
building for the display of tenants' names
15. Controlling so far as practicable 24 hours a day 7 days a week traffic
flow within the car park in the Building and traffic 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
16. Providing and maintaining a post room facility for the reception of mail
to the Building
17. Complying with the obligations on the part of the tenant contained in the
Head Lease save for the payment of rent
18. Complying with the obligations set out in clause 6
19. Any other services relating to the Building or any part of it provided by
the Management Company from time to time which shall be:-
(1) reasonably capable of being enjoyed by the occupier of the Premises
or
(2) reasonably calculated to be for the benefit of the Tenant and other
tenants of the Building or
(3) appropriate for the maintenance upkeep or cleanliness of the
Building or
(4) otherwise in keeping with the principles of good estate management
PROVIDED ALWAYS that
(i) Where in this schedule there are references to matters or things
which are then stated to include certain particular matters or
things which are not also stated to be without prejudice to the
generality of the wording preceding it nevertheless the reference
to the particular matters or things shall be deemed to be and in
each case shall be without prejudice to the generality of the
wording preceding it
(ii) The Management Company shall subject to clause 6 when reasonable
have the right to cease or to procure the cessation of the
provision of or add to or procure
48
the addition to any item of Services matter or thing specified in
this schedule if the Management Company shall having regard to
the principles of good estate management reasonably deem it
desirable or expedient so to do but before so doing the
Management Company shall notify all the tenants in the Building
but in the event of any failure of any of the Services shall use
all reasonable endeavours to restore the said Service
(iv) The Management Company or the managing agents may temporarily
withdraw any item of Services matter or thing specified in this
schedule if in their reasonable opinion such withdrawal is in the
interest of good estate management or if such withdrawal is due to
circumstances beyond the control of the Management Company
PART II
1. All fees and disbursements of any individual or firm or company employed
or retained by or on behalf of the Management Company or its agents
(including without limitation managing agents fees) for or in connection
with:-
(1) any surveying or accounting functions for the Building and
(2) the performance of the Services or any of them and any other duties
in or about the Building or any part of it relating to the general
management administration security maintenance protection and
cleanliness of the Building
2. The reasonable fees of the Management Company for any of the Services or
for the functions and duties referred to in paragraph 1 of this Part of
this schedule which shall be undertaken by the Management Company and not
by a third party
3. The cost (in addition to any fees referred to in paragraph 2 and where
the context permits paragraph 1 of this Part of this schedule) of
employing (whether by the Management Company or any managing agents or
any other individual or firm or company) such staff as the Management
Company may in its reasonable discretion consider appropriate for the
performance of the Services and the functions and duties referred to in
paragraph 1 of this Part of this schedule and all other incidental
expenditure in relation to such employment including without prejudice to
the generality of the foregoing:-
(1) salaries wages pensions and pension contributions benefits in kind
and other emoluments and National Insurance and other statutory
contributions or levies
(2) the provision of uniforms and working clothing
(3) the provision of vehicles tools appliances cleaning and other
material fixtures fittings and other equipment for the proper
performance of their duties and a store for housing the same and
(4) a reasonable notional rent for any premises reasonably provided
rent free for every such person's use occupancy or residence
4. The cost of entering into any contracts for the carrying out of all or
any of the Services
5. All rates taxes assessments duties charges impositions and outgoings
which are now or during the Term shall be charged assessed or imposed
on:-
(1) the whole of the Common Parts or any part of them
49
(2) any residential accommodation provided for caretakers and other
staff employed in connection with the Building and any other
premises provided as referred to in paragraph 3(4) of this Part
of this schedule
excluding any tax (other than VAT) payable by the Landlord as a direct
result of any actual or implied dealing with the reversion of any Lease
or of the Landlord's receipt of income
6. The cost of the supply of water electricity gas oil and other fuel for
the provision of the Services and the cost of any electricity generating
transforming monitoring metering and distribution plant machinery and
equipment in or servicing the Building
7. The cost which the Landlord may be called upon pursuant to any Enactment
to pay as a contribution towards the expense of making repairing
maintaining rebuilding and cleansing any ways roads pavements or
structures Service Media or anything which may belong to or be used for
the Building or any part of it exclusively or in common with other
neighbouring or adjoining premises
8. The cost of taking all steps deemed desirable or expedient by the
Landlord and/or the Management Company for complying with or making
representations against or otherwise contesting the incidence of the
provisions of any Enactment relating to or alleged to relate to the
Building or any part or it for which any tenant is not directly and
exclusively liable
9. The cost to the Landlord and/or the Management Company of abating any
nuisance in respect of the Building or any part of it insofar as the same
is not the liability of any tenant
10. Any interest and fees incurred in respect of money borrowed in unforeseen
or emergency circumstances to finance the provision of the Services and
the costs referred to in this Part of this schedule or any of them
11. Any VAT (or any tax of a similar nature which may be substituted for or
levied in addition to it) incurred by the Management Company on any other
amount comprised in the Service Cost save to the extent that the
Management Company obtains credit for such VAT incurred by the Management
Company pursuant to sections 24 25 and 26 Value Added Tax Act 1994 or any
regulations made thereunder
12. A reasonable notional rent for any management accommodation provided
within the Building to facilitate the provision of the Services
13. All other reasonable actual costs properly incurred in connection with
the provision of the Services
SCHEDULE 7
(MATTERS TO WHICH THE DEMISE IS SUBJECT)
1. The entries on the registers of Title Number NGL272172 as at the date
hereof
2. Agreement dated 24th November 1995 between The Prudential Assurance
Company Limited (1) 99 Bishopsgate Limited (2) The Scottish Amicable Life
Assurance Society (3)
50
SCHEDULE 8
PROVISIONS FOR VAT INDEMNITY
Part I
1. Additional Definitions:
"TAX CREDIT" means a credit in respect of, or repayment of, input VAT,
arising by virtue of and determined in accordance with sections 24, 25
and 26 Value Added Tax Act 1994 and regulation made thereunder
"TENANT'S AUDITORS" means the auditors for the time being of the Tenant
provided that they are one of the following firms of accountants -
Deloitte Touche, Coopers and Lybrand, Ernst & Young, KPMG, Price
Waterhouse or Arthur Andersen - or such other reputable firm or
accountants as the Landlord has previously approved for the purpose of
this schedule 8 (such approval not to be unreasonably withheld or
delayed).
"VAT ELECTION" means an election under paragraph 2 of Schedule 10 Value
Added Tax Act 1994 made by the Landlord or any person of whom the
Landlord is a "Relevant Associate" within the meaning of paragraph 3(7)
of Schedule 10 or any other election or voluntary act by the Landlord or
any person connected with the Landlord (as determined under the
provisions of Section 839 of the Income and Corporation Taxes Act 1988)
which results in VAT being payable on the rent first reserved by this
lease
"VAT YEAR" means a tax year for Value Added Tax purposes determined in
accordance with Part XIV of the Value Added Tax Regulations 1995.
"VAT YEAR CERTIFICATE" means the certificate to be provided by the Tenant
following the end of the Tenant's VAT Year in the form set out in Part II
of this Schedule.
2. Payment of VAT - no VAT Election
In the event that the rent first reserved (or any part thereof)
constitutes consideration for a taxable supply for VAT purposes which
would be a taxable supply whether or not a VAT Election has effect in
respect of the Premises, the Tenant shall pay such VAT in addition to the
rent first reserved without any adjustment of rent first reserved under
this schedule.
3. Adjustment of rent first reserved and pavment of VAT - VAT Election made
If and for all periods where the rent first reserved (or any part
thereof) constitutes consideration for a taxable supply for VAT purposes
which would not be a taxable supply but for a VAT Election having effect
in respect of the Premises, the rent first reserved shall be adjusted to
such amount as when aggregated with that part of the VAT chargeable
thereon in respect of which the Tenant does not obtain a Tax Credit,
equals the rent first reserved which would have been paid had no VAT
Election been made.
4. Determination of adjustment of rent first reserved
4.1 At least 28 days prior to (a) 29th September 1998 and (b) every
subsequent anniversary thereof the Tenant shall serve a VAT Year
Certificate on the Landlord. Where the Tenant has served such VAT Year
Certificate (or is deemed to have done so pursuant to paragraph 4.2 of
this Part I below), the Tenant shall pay the amounts (including the VAT)
stipulated (or deemed to be stipulated) in paragraph 3 of such VAT Year
Certificate on
51
the due date for payment of the next installment of the rent first
reserved (and on the due date for subsequent instalments), subject
however to paragraph 4.3 of this Part I below.
4.2 If the Tenant fails to serve a VAT Year Certificate at least 28 days
prior to the due date for payment of the sum in respect of which
paragraph 3 above will apply, the Tenant shall be deemed to have served a
VAT Year Certificate specifying in paragraph 1 thereof the same estimated
proportion as stated in the previous VAT Year Certificate served, or if
no previous VAT Year Certificate has been served by the Tenant at any
time prior to the due date for any VAT Year Certificate an estimated
proportion of nil per cent. If the Tenant fails to serve a VAT Year
Certificate on more than one consecutive occasion the Tenant shall be
deemed, on the second failure and any subsequent failure, until service
of the next VAT Year Certificate, to have served a VAT Year Certificate
specifying in paragraph 1 thereof an estimated proportion of nil per
cent.
4.3 The VAT Year Certificate shall be final and binding unless the Landlord
notifies the Tenant within 30 days after the date on which a VAT Year
Certificate has been served that it disputes the VAT Year Certificate on
the grounds of manifest error. Unless such notification is given, no
further adjustments (other than those covered by the VAT Year
Certificate) shall be made in respect of any instalments of rent first
reserved in the VAT Year covered by the aforementioned VAT Year
Certificate. Whether or not the Landlord notifies the Tenant that it
disputes any amount, the Tenant shall pay on the due date for payment of
the next installment of rent first reserved immediately following the
service of the VAT Year Certificate to which the dispute relates, the
amount stipulated in paragraph 3 of the VAT Year Certificate.
4.4 If the Review Rent is not agreed or determined until after a relevant
Review Date, the amount of any increase to be paid pursuant to paragraph
2 of schedule 4 of this lease shall (if paragraph 3 above applies at that
time) be adjusted on the basis of the last VAT Year Certificate. The
adjustment amount shall be paid at the time when the amount of any
unadjusted increase would have been due to be paid and the provisions of
this schedule shall apply as if the amount of the increase were an amount
to which paragraph 3 of Part I of this schedule 8 applied.
4.5 The Landlord may notify the Tenant in writing at any time within five
days of the service of any VAT Year Certificate (or within five days of
the last date on which the Tenant should have served a VAT Year
Certificate and is therefore deemed to have served one) that it requires
the Tenant to obtain a certificate from the Tenant's Auditors at the
Tenant's cost (if adjustments are required following such process) or at
the Landlord's cost (if no such adjustments are required) in the form set
out in the VAT Year Certificate. The Tenant's Auditor's certificate shall
be provided at least eight days prior to the date of payment of the rent
first reserved to which such certificate relates, together with the
Tenant's revised VAT Year Certificate (if required in order for the
Tenant's Auditors to be able to provide a certificate). The Tenant shall
pay in accordance with paragraph 4.1 above the amount stipulated in
accordance with paragraph 3 of such VAT Year Certificate (as revised, if
required) on the date for payment of the rent first reserved.
4.6 If adjustments are required pursuant to any VAT Year Certificate as a
result of the proportion of VAT for which the Tenant has obtained or will
obtain a Tax Credit differing from the proportion previously taken into
account in calculation any payment, any such difference shall be taken
into account (after having determined the amount of rent first reserved
payable in respect of the next quarter in accordance with paragraph 3
above) in calculating the next actual payment of rent first reserved
(either by increase or
52
decrease), the amount of which shall be set out in paragraph 3 of the VAT
Year Certificate.
4.7 Interest shall be payable at three per cent below the Interest Rate by
the Landlord and three per cent below the Interest Rate by the Tenant on
the difference between the amount actually paid pursuant to the relevant
VAT Year Certificate on the due date for payment of any sum to which
paragraph 3 of Part I of this schedule 8 applies and the amount which
should have been paid, from such due date until the date of payment of
the adjusted amount pursuant to paragraph 4.3. Where the actual amount
paid (the "Initial Payment") on the due date for payment of any sum was
subsequently adjusted on payment of any later installment of the rent
first reserved ("the Adjusted Payment") in accordance with paragraph 4.6
of Part I of this Schedule 8 and paragraph 3(b) of the VAT Year
Certificate, the interest shall be calculated on the basis of the
difference between the Initial Payment and the amount which should have
been paid pursuant to paragraph 4.1 until the date of the Adjustment
Payment, and then on the difference between the Adjustment Payment and
the amount which should have been paid until payment of that amount
pursuant to paragraphs 4.3.
4.8 Following any assignment of the whole of the Premises, the provisions of
this schedule 8 shall apply to any new Tenant as if it were the first
Tenant, and a VAT Notice served by the new Tenant shall not take into
account any adjustments made, or to be made, in respect of any previous
Tenant.
5. Miscellaneous
The Tenant shall be at liberty to carry on the ordinary course of its
trade as it wishes and shall not be precluded from proposing or accepting
a method of attribution designed or maximise its Tax Credit and covenants
not to enter any arrangement which has the specific purpose of increasing
the amount by which the rent first reserved is decreased by virtue of
this schedule 8..
53
Part II
-------
VAT YEAR CERTIFICATE
--------------------
To: The Landlord From: The Tenant
We refer to paragraph 4.3 of Part I of schedule 8 to the Lease dated [ ]
made between 99 Bishopsgate Limited (1) 99 Bishopsgate Management Limited (2)
Hammerson U.K. Properties plc (3) Donaldson Lufkin & Jenrette International
Limited (4) and Donaldson Lufkin & Jenrette Inc. (5) in respect of premises on
[ ] floor of the building known as 99 Bishopsgate London EC2 and pursuant to
that paragraph:
1. Our VAT Year which included the following quarter days [ ], ended on
[ ], ended on [ ].
(a) The part of the VAT charged on the rent first reserved paid in the
VAT Year for or in respect of which we estimate/have determined (in
accordance, where relevant, with the return made, or to be made, for
the prescribed accounting period next following the end of the VAT
Year) we will be unable to obtain credit or repayment is a
proportion of [ ] per cent of the total VAT charged.
(b) The following Table sets out the part of the VAT charged which was
expected to be irrevocable during the VAT Year where it has been
determined on the basis of paragraph 2(a) above that that differs
from the amount of VAT for or in respect of which we actually
obtained, or will be able to obtain, credit or repayment.
Dates Rent first reserved Estimate Adjustment Determination
----- ------------------- -------- ---------- -------------
* ** ***
* estimate of proportion of VAT for or in respect of which we
estimated we would be unable to obtain credit or repayment as set
out initially in VAT Notice.
** adjusted estimate of proportion of VAT for or in respect of which
we estimated we would be unable to obtain credit or repayment as
set out in subsequent VAT Notice.
*** proportion of VAT for or in respect of which we have now
estimated/determined we shall be unable to obtain credit or
repayment, in accordance with Sections 24-26 of the Value Added
Tax Act 1994 and the Value Added Tax Regulations 1995
3. We request that adjustment is made to the next installment of rent first
reserved so as to ensure that the amount of rent first reserved payable
in the VAT Year to which this VAT Year Certificate relates is as provided
in paragraph 3 of Part I of Schedule 8 to the Lease in accordance with
the information given in paragraph 2 above
and we calculate that the next installment of rent first reserved as so
adjusted shall be pounds sterling [ ] exclusive of VAT and
the VAT thereon shall be pounds sterling [ ], and that the
interest payable by the Tenant to the Landlord/Landlord to the Tenant,
in accordance with paragraph 4.7 of Part I schedule 8 to the Lease shall
be pounds sterling [ ].
4. We hereby declare that:
54
(a) we have complied with the covenant imposed upon us by paragraph 6.2
of Part I of schedule 8 to the Lease;
(b) the information contained in this VAT Notice is to the best of our
knowledge, information and belief complete and accurate;
(c) we have made all due returns to the Commissioners of Customs and
Excise and such returns are complete and accurate in all material
respects and have been made within the time limits provided by
statute.
Signed by
an authorised signatory on behalf of the Tenant
The above declaration are, to the best of our knowledge and belief after due
and careful enquiry, true, accurate and complete.
Signed by
Tenant's Auditors
55
THE COMMON SEAL of 99 BISHOPSGATE )
LIMITED was hereunto affixed in the presence of:- )
[SEAL HERE] Director /s/
Secretary /s/
THE COMMON SEAL of 99 BISHOPSGATE )
MANAGEMENT LIMITED was hereunto )
affixed in the presence of:- )
[SEAL HERE] Director /s/
Secretary /s/
THE COMMON SEAL of HAMMERSON U.K. )
PROPERTIES plc was hereunto affixed in the )
presence of:- )
[SEAL HERE] Director /s/
Secretary /s/
56
DATED 24th OCTOBER 1996
- ------------------------------------------------------------------------------
99 BISHOPSGATE LIMITED
and
99 BISHOPSGATE MANAGEMENT LIMITED
and
HAMMERSON U.K. PROPERTIES plc
and
DONALDSON, LUFKIN & JENRETTE
INTERNATIONAL LIMITED
and
DONALDSON, LUFKIN & JENRETTE, INC.
- ------------------------------------------------------------------------------
UNDERLEASE
of
Twenty-fifth Floor 99 Bishopsgate London EC2
- ------------------------------------------------------------------------------
Herbert Smith
Exchange House
Primrose Street
London EC2A 2HS
Tel: 0171-374 8000
Fax: 0171-496 0043
Ref: 129/P17/30433514
TABLE OF CONTENTS
CLAUSE HEADING PAGE
1. Definitions
Building
Common Parts
Development
Electricity Cost
Enactment
Head Lease/Superior Lease
Insurance Cost
Insurance Rent
Insured Risks
Interest Rate
Lettable Unit
Net Internal Area
Normal Business Hours
Permitted Part
Permitted Use
Planning Law
Plans
Premises
Public Authority
Services
Service Media
Tenant
Term
VAT
2. Interpretation
3. Demise and Rents
4. Tenant's Covenants
(1) Rent
(2) VAT
(3) Outgoings
(4) Compliance with Enactments
(5) Notices
(6) Repair
(7) Decoration and general condition and servicing
(8) Refuse
(9) To permit entry
(10) Compliance with notices relating to repair or condition
(11) Encroachments
(12) Alterations and reinstatement
(13) Use
(14) Signs
CLAUSE HEADING PAGE
(15) Alienation
(16) Registration
(17) Payment of cost of notices consents etc.
(18) Machinery
(19) Obstruction/overloading
(20) Parking/goods delivery
(21) Planning Law and compensation
(22) Indemnity
(23) Defective Premises
(24) Insurance and fire fighting equipment
(25) Dangerous and contaminative materials
(26) Yield up
(27) Regulations and covenants
(28) Security and access
(29) Head Lease
(30) Service Charge
5. Landlord's Covenants
(1) Quiet Enjoyment
(2) Insurance
(3) Head Lease
(4) Electricity Provision
(5) Management Company access
(6) VAT indemnity
6. Provision of Services
7. Provisos
(1) Forfeiture and re-entry
(2) Letting Scheme use and easements
(3) Common Parts and Service Media
(4) Service of notices
(5) Rent cesser
(6) Landlord's liability
(7) Arbitration fees
(8) Rent review memorandum
(9) No warranty as to use
(10) Disputes
(11) Compensation
(12) Rateable value appeals
(13) No warranty as to security
(14) Jurisdiction
(15) Overriding lease
(16)
8. Landlord's Guarantor
9. Tenant's option to determine
CLAUSE HEADING PAGE
10. Guarantee and Guarantor's Indemnity
11. Stamp Duty Certificate
Schedule 1 Premises
Schedule 2 Easements and rights granted
Schedule 3 Exceptions and reservations
Schedule 4 The first reserved rent and the review thereof
Schedule 5 Service Charge
Schedule 6 Services
Schedule 7 Deeds and documents to which the demise is subject
LEASE PARTICULARS
- -----------------------------------------------------------------------------
1. DATE 24th OCTOBER 1998
THIS LEASE IS AND IS INTENDED TO BE DELIVERED ON THE DATE FIRST
ABOVE WRITTEN
- -----------------------------------------------------------------------------
2. PARTIES
(a) LANDLORD : 99 Bishopsgate Limited
(b) TENANT : Donaldson, Lufkin & Jenrette International
Limited
(c) MANAGEMENT COMPANY : 99 Bishopsgate Management Limited
(d) LANDLORD'S GUARANTOR : Hammerson U.K. Properties plc
(e) TENANT'S GUARANTOR : Donaldson, Lufkin & Jenrette, Inc.
- -----------------------------------------------------------------------------
3. DEMISED PREMISES : ALL THOSE premises on the 25th floor
of the Building shown for identification
only edged red on Plan 1.
- -----------------------------------------------------------------------------
4. BUILDING : 99 Bishopsgate London EC2
- -----------------------------------------------------------------------------
5. CONTRACTUAL TERM AND : Commencing on the date hereof and
TERM COMMENCEMENT expiring on 23rd October 2011
AND EXPIRY DATES
- -----------------------------------------------------------------------------
6. INITIAL RENT : (pounds sterling) 456,322.50
- -----------------------------------------------------------------------------
7. RENT COMMENCEMENT DATE: 25th March 1998
- -----------------------------------------------------------------------------
8. TENANT'S BREAK RIGHT : 24th October 2008
- -----------------------------------------------------------------------------
9. CAPITAL SUM : (pounds sterling) 228,161.25 inclusive of
VAT
THIS UNDERLEASE made the 24th day of OCTOBER One thousand nine hundred and
ninety six
BETWEEN:-
(1) 99 BISHOPSGATE LIMITED whose registered office is at Lo Lam House Kumul
Highway Port Vila Vanuatu (Co. Regn. No. 10469) (registered under Section
21 A to the Companies Act 1985 under company number FC018588 and branch
number (BR002962) whose principal place of business is at 100 Park Lane
London W1Y 4AR(the "LANDLORD")
(2) 99 BISHOPSGATE MANAGEMENT LIMITED whose registered office is at Park Lane
London W1Y 4AR (Co. Regn. No. 3071752) (the "MANAGEMENT COMPANY")
(3) HAMMERSON U.K. PROPERTIES plc whose registered office is at 100 Park Lane
London W1Y 4AR (Co. Regn. No.298351) (the "LANDLORD'S GUARANTOR")
(4) DONALDSON, LUFKIN & JENRETTE INTERNATIONAL LIMITED registered office is
at Moorgate Hall 155 Moorgate London EC2M 6XB (Co. Regn. No. 2475089) (the
"TENANT") and
(5) DONALDSON, LUFKIN & JENRETTE, INC. a corporation incorporated in the
State of Delaware United States of America whose address for the purposes
of this lease is 277 Park Avenue New York New York 10172 (the "GUARANTOR")
WITNESSETH as follows:-
1. DEFINITIONS
In this lease the following expressions have the respective specified
meanings (subject to any particular interpretation required by
clause 2):-
(1) "ACTS OF TERRORISM" means any act or omission of any person
acting on behalf of or in connection with any organisation (or
on his own behalf) which carries out activities directed towards
overthrowing or influencing by force or violence Her Majesty's
Government in the United Kingdom or any other government de jure
or de facto
(2) "AGREEMENT FOR INITIAL ALTERATIONS" means the agreement of even
date herewith and made between the Landlord and the Tenant
governing the initial fitting out of the Premises
(3) "BUILDING" means the land (of which the Premises form part)
having a frontage to the west side of Bishopsgate and a return
frontage to the south side of Wormwood Street and all buildings
fixtures and other structures whatsoever from time to time
thereon and the appurtenances thereof which land (together with
the building now erected thereon) is known as 99 Bishopsgate
London EC2 and is for the purpose of identification shown verged
by a blue line on the Building Plan together with any adjoining
areas designated by the Landlord or the Management Company
(4) "COMMON PARTS" means all parts of the Building which are from
time to time intended for the common use and enjoyment of the
tenants and occupiers of the Building and persons claiming
through or under them (whether or not other
1
parties are also entitled to use and enjoy the same) and reasonably
designated as such by the Landlord and including without prejudice to
the generality of the foregoing the pedestrian ways circulation areas
lobby entrance halls lifts lift shafts fire escapes landings staircases
passages forecourts car park landscaped areas plant rooms management
suites and any other areas which are from time to time during the Term
reasonably provided by the Landlord for common use by or benefit of the
tenants and occupiers of the Building But excluding (for the avoidance
of doubt) any premises intended to be let to any party or for occupation
by the Landlord or the Management Company other than for the provision
of the Services
(5) "DEVELOPMENT" has the meaning ascribed to that expression by Planning Law
(6) "ELECTRICITY COST" means the actual cost to the Landlord of the
provision of electricity to the Premises for consumption by the Tenant
in accordance with its covenant contained at clause 5(4) being a fair
and reasonable proportion as determined by the Landlord of the total
cost of the provision of electricity to the Building as a whole
(including the provision of any security for the supply of electricity
to the Building which may from time to time be required by the relevant
undertaker responsible for the supply of electricity chosen by the
Landlord) which proportion shall so far as practicable (save where the
same are not in working order) be calculated using readings taken in
such manner and at such times as the Landlord shall from time to time
determine of the check meters relating to the Premises from time to time
installed but otherwise shall be determined in such manner as the
Landlord shall in its discretion consider to be fair and reasonable in
all the circumstances
(7) "ENACTMENT" means every Act of Parliament directive and regulation now
or hereafter to be enacted or made and all subordinate legislation
whatsoever deriving validity therefrom
(8) "HEAD LEASE" means the lease under which the Landlord holds the Premises
dated 29th September 1975 made between The Prudential Assurance Company
Limited (1) and Bishopsgate Developments Limited (2) and "Superior
Landlord" means the person for the time being entitled to the reversion
immediately expectant on the term granted by the Head Lease and every
other person having an interest in reversion to that term
(9) "GROUP COMPANY" means a company which is either the holding company of
the Tenant or a wholly owned subsidiary of the Tenant or the Tenant's
holding company (as both expressions are defined in Section 736
Companies Act 1985)
(10) "INSURANCE COST" means in respect of any period for which the same is
required by the Landlord to be calculated the aggregate of the amount
which the Landlord may reasonably expend:-
(a) in effecting and maintaining insurance against the occurrence of
the Insured Risks in relation to the Building in such sum as
represents its then full current replacement cost with such
allowance as the Landlord from time to time considers
appropriate in respect of related liabilities and expenses
(including without limitation liability to pay any fees or
charges on the submission of an application for planning
permission and costs which might be incurred in complying with
any Enactment in carrying out
2
any replacement work and sums in respect of architects'
engineers' and quantity surveyors' and other professional fees
and incidental expenses incurred in relation to any works of
debris removal and of replacement and all VAT) and
(b) in effecting and maintaining any insurance relating to the
property owners' liability and the employer's liability of the
Landlord in relation to the Building and anything done therein
and
(c) in professional fees relating to insurance including fees for
insurance valuations carried out at reasonable intervals by an
independent insurance valuer (but no more than once in any year)
and all reasonable fees and expenses payable to advisers in
connection with effecting and maintaining insurance policies and
claims and
(d) equivalent to the total of all reasonable excess sums (being for
the avoidance of doubt the first part of any insurance claim)
which the insurers are not liable to pay out on any insurance
claim in respect of the Building and which the Landlord or the
Management Company may have expended in replacing the damaged or
destroyed parts of the Building
(11) "INSURANCE RENT" means in respect of any period for which the same is
required by the Landlord to be calculated the aggregate of:-
(a) a fair and reasonable proportion attributable to the Premises of
the Insurance Cost for the relevant period
(b) the reasonable amount which the Landlord may expend in effecting
and maintaining insurance against up to six years' loss of the
rents first and secondly hereinafter reserved and Service Charge
having regard to potential increases of rent in accordance with
schedule 4 and with any addition to the amount insured as the
Landlord may decide in respect of VAT and
(c) (without prejudice to all other provisions of this lease relating
to the use of the Premises and the vitiation of any policy of
insurance) any reasonable amount which the Landlord may expend in
paying all additional premiums and loadings on any policy or
policies of insurance required to be paid as a result of anything
done or omitted (in breach of the terms of this lease) by the
Tenant and
(d) any tax charged on any premium for any such insurance
(12) "INSURED RISKS" means loss damage or destruction whether total or
partial caused by Acts of Terrorism fire lightning explosion riot civil
commotion strikes labour and political disturbances and malicious damage
aircraft and aerial devices (other than hostile aircraft and devices)
and articles accidentally dropped from them storm tempest flood bursting
or overflowing of water tanks and pipes impact earthquake and accidental
damage to underground water oil and gas pipes or electricity wires and
cables subsidence ground slip and heave and such other usual commercial
risks or perils against the occurrence of which the Landlord may from
time to time in its reasonable discretion deem it desirable to insure
subject to such exclusions and limitations as are from time to time
commonly
3
imposed by insurers and subject also to the exclusion of such of the
risks specifically hereinbefore mentioned as the Landlord may in its
reasonable discretion decide where insurance cover in respect of the
risk in question is not for the time being available in the London
insurance market on reasonable terms
(13) "INTEREST RATE" means a yearly rate three per cent above either the base
rate of Barclays Bank plc or such other bank (being for the time being
generally recognised as a clearing bank in the London market) as the
Landlord may from time to time use for general banking purposes or if
the base rate cannot be ascertained then above such other rate as the
Landlord may reasonably specify (and so that whenever there is reference
in this lease to the payment of interest at the Interest Rate such
interest shall be calculated on a daily basis and compounded with
quarterly rests on the usual quarter days)
(14) "LANDLORD'S SERVICES EQUIPMENT" means all the plant machinery and
equipment (with associated Service Media) within or serving the Building
from time to time (whether or not within the Premises or other premises
let or intended to be let by the Landlord) comprising or used in
connection with the following systems (to the extent specified in the
following paragraphs of this definition):-
(i) the whole of the sprinkler system within the Building (including
sprinkler heads)
(ii) the whole of the fire detection and fire alarm systems
(iii) the whole of the permanent fire fighting systems (but excluding
portable fire extinguishers installed by the Tenant or other
tenants of the Building)
(iv) the whole of the chilled water system
(v) the whole of the building management system (including the building
security system) installed by the Landlord
(vi) the central electrical supply system from the mains supply into
the Building so far as (and including) the electrical riser
busbars connecting to the distribution boards at each level in
the Building which is let or intended to be let by the Landlord
(vii) the whole of the air handling system and the electricity supply
and control systems for the same
(viii) the standby generators and associated cabling wiring and duct work
but excluding in each case any "stand alone" systems installed by the
Tenant or any other tenant or occupier of the Building
(15) "LETTABLE UNIT" means any unit of accommodation forming part of the
Building which is intended by the Landlord at any material time to be
for separate occupation
(16) "NET INTERNAL AREA" has the meaning ascribed to that expression by the
Code of Measuring Practice - Fourth Edition (RICS/ISVA 1993) (or if
there shall be no such edition or no such expression for the time being
the nearest equivalent thereto)
4
[GRAPHIC]
[GRAPHIC]
99 Bishopsgate, London, EC2
North
BUILDING PLAN
(17) "NORMAL BUSINESS HOURS" means 7.30 a.m. to 7.30 p.m. on Mondays to
Fridays inclusive (except bank holidays) subject to expansion of such
hours at the reasonable discretion of the Landlord provided that such
hours will automatically expand if any other tenant in the Building is
granted the benefit of any expanded hours
(18) "OUTSIDE NORMAL BUSINESS HOURS CHARGE" means the whole of the actual
cost to the Management Company of carrying out or providing any of the
Services at the request of the Tenant outside Normal Business Hours
other than any services which are stated to be provided 24 hours a day
(including without prejudice to the generality of the foregoing costs
and expenses in the nature of those set out in Part II of schedule 6) or
in the event of any of the Services being carried out or provided
outside Normal Business Hours to the Tenant and any other tenant or
tenants of the Building a fair proportion thereof (on a fair and
reasonable basis between the Tenant and any other tenant or occupier
making use of such Services) as reasonably determined by the Landlord.
PROVIDED THAT during the first year of the Term the cost of providing
air conditioning outside Normal Business Hours shall not exceed
(pounds sterling) 88 per hour (in respect of the Premises being the only
user of air conditioning at the relevant time) or (pounds sterling) 48 per
hour per floor on the basis that any five of floors 18, 20 and 22 to 26 of
the Building are simultaneously using such air conditioning over the whole
of such floors
(19) "PERMITTED PART" means any part or parts of the Premises capable of
separate occupation
(20) "PERMITTED USE" means use as high class offices for any purpose within
Class B1(a) (but not for any other purpose within that Use Class) of the
schedule to the Town and Country Planning (Use Classes) Order 1987 and
for the avoidance of doubt use of the Premises for data processing
investor services business trading operators and investment banking
complies with this provision
(21) "PLANNING LAW" means every Enactment for the time being in force
relating to the use development and occupation of land and buildings and
every planning permission statutory consent and agreement made under any
Enactment relating to the Building
(22) "PLANS" means the plans annexed hereto and "Building Plan" means that one
of them so marked
(23) "PREMISES" means the premises described in schedule 1 and all permitted
additions alterations and improvements made to them
(24) "PUBLIC AUTHORITY" means any Secretary of State and any government
department public local regulatory fire or any other authority or
institution having functions which extend to the Premises or their use
and occupation and any court of law and the companies or authorities
responsible for the supply of water gas and electricity or any of them
and any of their duly authorised officers
(25) "REINSTATEMENT SPECIFICATION" means the specification annexed hereto or
in the event that materials listed in the specification are not
available from time to time or appropriate for use (in the Landlord's
reasonable opinion) then reference to such materials will be substituted
by reference to materials of not materially less quality which perform a
similar function PROVIDED THAT save to the extent
5
that items of plant and equipment have been altered during the
Term the Tenant shall not be required to replace existing items
of plant and equipment for new items subject to the existing
items being in good working order
(25) "REVIEW DATE" means each of:-
(a) the 24th October in the years Two thousand and one and every
fifth anniversary of that date during the Term (and the
last day of the Term)
(b) any date stipulated by virtue of paragraph 5 of schedule 4
(26) "SERVICES" means the services and other matters specified in
clause 6 and Part I of schedule 6
(27) "SERVICE MEDIA" means those parts of the Building comprising gas
water drainage electricity telephone telex signal and
telecommunications heating cooling ventilation air conditioning
fire alarm and other pipes drains sewers mains cables wires
supply lines ducts conduits flues and all other common conducting
media plant appliances and apparatus for the provision supply
control and monitoring of services to or from the Building and
other common equipment
(28) "TERM" means a term of years commencing on the date hereof and
expiring on 23rd October 2011 and includes any period of holding
over or extension whether by any Enactment or common law
(29) "TERMINATION NOTICE" means not less than 12 months and 1 day's
prior written notice unless either:
(a) any Enactment or decision not capable of appeal on a point
of law confirming that the Tenant is not entitled to a new
tenancy on the expiration of such notice is in force or
upheld as at 22nd October (in which case not less than
6 months prior written notice need be given); or
(b) any other tenant enters into a lease prior to September
1998 of premises comprising at least a floor of the
building within the security of tenure protections of the
Landlord and Tenant Act 1954 for a term of not less than
10 years (without break rights) and is granted right to
determine such lease on less than such 12 months' and 1
day's prior written notice (in which case the notice
period hereunder shall be reduced to such notice period as
is granted to such tenant in such circumstances)
(30) "VAT" means Value Added Tax as referred to in the Value Added Tax
Act 1994 (or any tax of a similar nature which may be substituted
for or levied instead of it by statutes)
2. INTERPRETATION
(1) Words importing the singular include the plural and vice versa
and words importing one gender include both other genders
(2) The expressions "Landlord" "Tenant" "Management Company" and
"Guarantor" wherever the context so admits include their
respective successors in title and
6
where a party comprises more than one person covenants and obligations
of that party take effect as joint and several covenants and obligations
(3) A covenant by the Tenant not to do (or omit) any act or thing also
operates as a covenant to use reasonable endeavours not to permit or
suffer it to be done (or omitted) and to prevent (or as the case may be
to require) it being done
(4) References in this lease to:-
(a) any clause sub-clause schedule or paragraph is a reference to the
relevant clause sub-clause schedule or paragraph of this lease and
clause and schedule headings shall not affect the construction of
this lease
(b) any right of (or covenant to permit) the Landlord or the Management
Company to enter the Premises shall also be construed (subject
always to the proviso to clause 4(9)) as entitling the Landlord to
remain on the Premises with or without equipment and permitting such
right to be exercised by all persons authorised by the Landlord for
as short a period as reasonably practicable and making good all
damage caused and causing as little inconvenience as reasonably
possible save where the right of entry is exercised to remedy any
breach hereunder where the Landlord only undertakes to make good
damage caused
(c) any consent licence or approval of the Landlord or words to similar
effect mean a consent licence or other approval in writing signed by
or on behalf of the Landlord and given before the act requiring
consent licence or approval
(d) the Premises (except in clause 4(15)) shall be construed as
extending where the context permits to any part of the Premises
(e) a specific Enactment includes every statutory modification
consolidation and re-enactment and statutory extension of it for the
time being in force except in relation to the Town and Country
Planning (Use Classes) Order 1987 which shall be interpreted
exclusively by reference to the original provisions of Statutory
Instrument 1987 No 764 whether or not the same may at any time have
been revoked or modified
(f) the last year of the Term includes the final year of the Term if
it shall determine otherwise than by effluxion of time and
references to the expiry of the Term include such other
determination
(5) (a) Where the context permits rents or other sums being due from
the Tenant to the Landlord or the Management Company mean that
they are exclusive of any VAT
(b) whenever the consent licence or approval of the Landlord is
required under this lease the relevant provision shall be
construed as also requiring (and any consent licence or approval
given by the Landlord shall be deemed subject to the need for)
the consent licence or approval of the Superior Landlord (for
which the Landlord shall apply at the Tenant's reasonable cost)
where the same is required under the Head Lease except that
nothing in this lease or in any consent licence or approval by
the
7
Landlord shall imply that the Superior Landlord's consent licence or
approval will not be unreasonably withheld or delayed
(c) references to any right of (or covenant to permit) the Landlord to
enter the Premises shall extend to the Superior Landlord and
to all persons authorised by it and shall be construed in the manner
required by clause 2(4)(b) but in relation to the Superior Landlord
and those with its authority
(d) the rights excepted and reserved in schedule 3 are also excepted and
reserved for the benefit of the Superior Landlord
3. DEMISE AND RENTS
The Landlord at the request of the Guarantor and in consideration of the
payment by the Landlord to the Tenant of the sum of Two hundred and
twenty eight thousand one hundred and sixty one pounds and 25 pence
((pounds sterling)228,161.25) paid on the date hereof (receipt of which is
acknowledged by the Tenant) DEMISES unto the Tenant ALL THAT the
Premises TOGETHER WITH the easements and rights specified in schedule 2
exercisable in common with the Landlord and all others with its
authority or otherwise from time to time entitled thereto EXCEPT and
RESERVED unto the Landlord and all other persons authorised by it from
time to time during the Term or otherwise from time to time entitled
thereto (including the Management Company in relation to the provision
of the Services) the easements and rights specified in schedule 3
TO HOLD the Premises unto the Tenant (together with and except and
reserved as aforesaid) for the Term SUBJECT to all rights easements
covenants stipulations and other matters affecting the same and SUBJECT
to the provisions of the deeds and documents mentioned in schedule 7
YIELDING AND PAYING therefor:
FIRST yearly and proportionately for any part of a year until 24th March
1998 a peppercorn (if demanded) and thereafter until the first Review
Date (and thereafter as determined pursuant to schedule 4) the yearly
rent of Four hundred and fifty six thousand three hundred and twenty two
pounds and fifty pence ((pounds sterling)456,322.50) exclusive of VAT
(subject to clause 5(6)) payable by equal quarterly payments to be made
in advance on the usual quarter days in every year the first such payment
to be made on 25th March 1998
SECONDLY as additional rent from time to time the Insurance Rent payable
on demand
THIRDLY as additional rent on demand (in addition and without prejudice
to the Landlord's right of re-entry and any other right) interest at the
Interest Rate on any sum owed by the Tenant to the Landlord whether as
rent or otherwise which is not:-
(a) received in cleared funds by the Landlord within 10 days
following the due date (or in the case of money due only on
demand within fourteen days after the date of demand) calculated
for the period commencing on the due date for payment and ending
on the date the sum and the interest is received in cleared funds
by the Landlord
(b) demanded (or if tendered is for the time being refused) by the
Landlord in circumstances where it is prudent for it not to demand
or accept any payment
8
having regard to a breach of any of the Tenant's obligations under
this lease of which the Tenant has received notice calculated for
the period commencing on the due date for payment and ending on the
date the sum (and the interest) is subsequently received by the
Landlord
FOURTHLY as additional rent all VAT for which the Landlord is or may
become liable to account to H.M. Customs & Excise (or other relevant
body to whom account has for the time being to be made) on the supply by
the Landlord to the Tenant under or in connection with the provisions of
this lease or the interest created by it and of any other supplies
whether of goods or services such rent fourthly reserved to be due for
payment contemporaneously with the other rents or sums to which it
relates
AND FIFTHLY a rent equal to the Electricity Cost such rent to be payable
on demand (either annually or by instalments) as the Landlord shall
determine
4. TENANT'S COVENANTS
The Tenant covenants with the Landlord (and in respect of sub-clause
4(30) also with the Management Company) throughout the Term subject
to clause 4(15):
RENT
(1) To pay the rents reserved by this lease on the days and in the
manner set out in clause 3 without deduction or set off and
(unless for the time being the Landlord shall have required in
writing to the contrary) to pay the rent first reserved (together
with any sum in respect of the rent fourthly reserved as may be
applicable thereto) by banker's standing order to such bank as
the Landlord may from time to time nominate
VAT
(2) Subject to clause 5(6) wherever the Tenant is required to pay any
amount to the Landlord hereunder by way of reimbursement or
indemnity to pay on the production of a valid VAT invoice to the
Landlord (as applicable) in addition an amount equivalent to any
VAT incurred by the Landlord save to the extent that the Landlord
obtains credit for such VAT incurred by the Landlord pursuant to
sections 24 25 and 26 Value Added Tax Act 1994 or any regulations
made thereunder
OUTGOINGS
(3) To pay all rates taxes charges and other outgoings whatsoever now
or hereafter assessed charged or imposed upon the Premises or
upon their owner or occupier (and a proper proportion determined
by the Landlord attributable to the Premises of any rates taxes
charges and other outgoings now or hereafter assessed charged or
imposed upon the Premises in common with other premises or upon
the owners or occupiers thereof) and (to the extent the Tenant
does not pay it directly to the relevant supplier) the total cost
(including meter rents) of all water (including chilled water)
electricity and gas separately metered and/or exclusively
supplied to the Premises during the Term as reasonably determined
by the Landlord excluding (without prejudice to the rent fourthly
reserved and clause 4(2)) any tax payable by the Landlord as a
direct result of any actual or implied dealing with the reversion
of this lease or of the Landlord's receipt of income
9
COMPLIANCE WITH ENACTMENTS
(4) To comply with the requirements of all Enactments and of every Public
Authority (including the due and proper execution of any works) in
respect of the Premises their use occupation employment of personnel in
them and any work being carried out to them (whether the requirements
are imposed upon the owner lessee or occupier) and not to do or omit
anything by which the Landlord may become liable to make any payment or
do anything under any Enactment or requirement of a Public Authority
NOTICES
(5) As soon as reasonably practicable and in any event within 5 working days
of receipt of the same to give to the Landlord notice of (and a
certified copy of) any notice permission direction requisition order or
proposal made by any Public Authority and without delay to comply in all
respects at the Tenant's cost with the provisions thereof save that the
Tenant shall if so required by and at the cost of the Landlord make or
join in making such objections or representations in respect of any of
them as the Landlord may reasonably require
REPAIR
(6) To put and keep the Premises (and any works or installations made
pursuant to paragraphs 4 and 5 of Schedule 2) in good and substantial
repair and condition (damage by any of the Insured Risks excepted to the
extent that the insurance money shall not have been rendered
irrecoverable subject to clause 5(2)(b) or insufficient because of some
act or default of the Tenant or of any person deriving title under or
through it or their respective servants or agents or invitees) and to
replace whenever necessary during the Term and on expiry of the Term the
landlord's fixtures and fittings (including any fitted carpets) in the
Premises which may have become beyond economic repair with items of the
same type and quality
DECORATION AND GENERAL CONDITION AND SERVICING
(7) (a) To keep the Premises maintained to a high standard of decorative
order and finish and properly cleansed and tidy and (without
prejudice to the foregoing) as often as the same shall be necessary
(and not less frequently than once in every fifth year of the Term
but not more than once in any 18 month period) and also in the last
year of the Term to clean paint polish or otherwise treat as the
case may be all inside surfaces of wood and metal work of the
Premises usually or requiring to be painted polished or otherwise
treated with two coats at least of high quality paint or polish
vinyl wall coverings (where applicable) or other appropriate
materials in a good and workmanlike manner (and during the last year
of the Term in the colour scheme specified and otherwise in
accordance with the Reinstatement Specification) PROVIDED ALWAYS
THAT the Tenant shall not be obliged to carry out any such
decorative treatment if the need for it is caused by damage by any
of the Insured Risks to the extent (subject to clause 5(2)(b)) that
the insurance money shall not have been rendered irrecoverable or
insufficient because of some act or default of the Tenant or of any
person deriving title under or through it or their respective
servants agents or invitees
10
(b) To clean the inside of all external window glazing in the Premises
at least once in every month using reputable contractors
(c) To enter into and maintain contracts for the regular inspection
maintenance and servicing of all fixed plant and equipment comprised
in the Premises which has or is likely to have any impact on the
Landlord's Services Equipment by reputable contractors approved by
the Landlord (such approval not to be unreasonably withheld) and to
obtain satisfactory test certificates as may be reasonably required
by the insurers and whenever reasonably required to produce copies
of such contracts and certificates
REFUSE
(8) Not to deposit any refuse on any of the Common Parts except in areas
designated for such purpose from time to time by the Landlord and to
comply with all requirements of any Public Authority and any reasonable
regulations made by the Landlord pursuant to clause 4(27) in relation to
control over and disposal of rubbish
TO PERMIT ENTRY
(9) To permit the Landlord (and persons authorised by the Landlord) at
reasonable times in compliance with the Tenant's reasonable security
requirements on reasonable prior written notice (except in an emergency)
to enter the Premises in order to:-
(a) examine their state of repair
(b) ascertain that the covenants and conditions of this lease have been
observed
(c) take any measurement or valuation of the Premises
(d) rebuild renew cleanse alter test maintain repair inspect and make
connections to any part of the Building including the Service Media
(PROVIDED that the Landlord will procure that such entry takes place
outside Normal Business Hours where practicable)
(e) during the last six months of the Term (or at any time in the case
of a disposal of the Landlord's interest) to show the Premises to
prospective purchasers or tenants and their agents
(f) exercise the rights described in schedule 3
COMPLIANCE WITH NOTICES RELATING TO REPAIR OR CONDITION
(10) (a) To comply with any notice requiring the Tenant to remedy any
breach of its covenants
(b) If the Tenant shall not within a reasonable time comply with any
such notice to permit the Landlord and any authorised person to
enter the Premises to remedy the breach as the Tenant's agent and at
the Tenant's proper cost the Landlord making good any damage caused
11
(c) To pay to the Landlord on demand all the proper costs and expenses
incurred by the Landlord under the provisions of this sub-clause
ENCROACHMENTS
(11) (a) To preserve all rights of light and other easements belonging to
the Premises and not knowingly to give any acknowledgment that they
are enjoyed by consent
(b) Not knowingly to do or omit anything which might subject the
Premises to the creation of any new easement and to give notice to
the Landlord forthwith of any encroachment which might have that
effect
ALTERATIONS AND REINSTATEMENT
(12) (a) Not to carry out any Development of or on the Premises nor
(without prejudice to the exclusion of structural parts from the
demise of the Premises) any works affecting any structural parts of
the Building and not to commit any waste
(b) Without prejudice to any other rights of the Landlord in respect of
areas not included in the Premises not to install or erect any
exterior lighting shade or awning or place any structure or other
thing outside the Premises
(c) Without prejudice to paragraphs (a) and (b) of this sub-clause and
subject to the provisos to this paragraph (c) not to make any other
alteration or addition to the Premises (including all electrical and
other plant and equipment and the installation and removal of
demountable partitioning) except:-
(i) in accordance with plans and specifications (adequately
describing the work in question and the manner in which the
work will be carried out) previously submitted at the Tenant's
expense in triplicate to and approved by the Landlord (such
approval not to be unreasonably withheld or delayed PROVIDED
THAT the Landlord shall respond to the Tenant's submission
within 10 working days in the case of minor alterations
(excluding any alterations which affect any of the Landlord's
Services Equipment) and if the Landlord fails to respond within
10 working days as aforesaid it shall be deemed to have
accepted such minor alterations AND PROVIDED FURTHER that the
initial fitting out of the Premises following the date hereof
shall be governed by the Agreement for Initial Alterations
(ii) in a manner which shall not materially and adversely affect the
Landlord's Services Equipment any Service Media or the
provision of any of the Services
(iii) in accordance with any relevant terms conditions
recommendations and regulations of any Public Authority (and in
particular in relation to any electrical installation in
accordance with the terms and conditions laid down by the
Institution of Electrical Engineers and the Regulations of the
Electricity Supply
12
Authority) and the insurance company with whom the Premises are
for the time being insured and
(iv) in a good and workmanlike manner
PROVIDED ALWAYS THAT subject to clause 4(12)(c)(i):-
(I) no such alterations or additions shall be carried out until the
Landlord has issued its consent in writing to which the Tenant
shall if required join as a party
(II) once any such alterations or additions have been carried out
the Tenant shall supply to the Landlord as-built plans in
triplicate (together with a computer aided design disk and 35
mm slides) showing the works as carried out
(d) At the expiry of the Term to remove:-
(i) all alterations and additions made to the Premises by the
Tenant
(ii) all work done in connection with the original fitting out by
the Tenant in pursuance of the Agreement for Initial
Alterations
and to restore and make good the Premises in accordance with the
Reinstatement Specification in a proper and workmanlike manner to
the condition and design which existed before the alterations or
additions were made with all services properly sealed off
USE
(13) Not to use the Premises or any chattels in them:-
(a) for any purpose (and not to do anything in or to the Premises) which
may be or become or cause a nuisance obstruction or damage to any
person or property
(b) for a sale by auction or for any public meeting or for any dangerous
noxious noisy illegal or immoral trade business or activity or for
residential purposes and not to use the Common Parts for the
transaction of any business or
(c) (without prejudice to the preceding paragraphs of this sub-clause)
except for the Permitted Use
SIGNS
(14) (a) Not to erect any aerial satellite dish sign signboard pole
antenna wire or other apparatus on the outside of the Building save
for the right granted pursuant to paragraph 3 of schedule 2
(b) Not to affix or exhibit so as to be visible from outside the
Premises any placard sign notice fascia board or advertisement
except the approved signs referred to in paragraph 3 of schedule 2
13
ALIENATION
(15) (a) If the Tenant at any time desires to assign the whole of the
Premises the Tenant shall first by an irrevocable unconditional
written notice ("the Tenant's Notice") served upon the Landlord
offer to surrender or assign this lease upon such financial terms
and conditions as the Tenant may desire
(b) If the Landlord wishes to accept such surrender or assignment it
shall within twenty-one days of receipt of the Tenant's Notice serve
a counter-notice ("the Counter-Notice") upon the Tenant stating as
much
(c) If the Landlord serves a Counter-Notice on the Tenant then the
Tenant shall surrender or assign (at the Landlord's option) the
Premises to the Landlord (or as the Landlord may direct) within six
months of receipt of the Counter-Notice either with vacant
possession or subject only to a permitted underletting and the
Tenant's liability hereunder shall cease in respect of any matters
arising following the date of such assignment or surrender but
without prejudice to any antecedent breaches of covenant
(d) If the Landlord does not serve a Counter-Notice then the Tenant must
(if it wishes to assign) complete its assignment on terms greater
than 95 per cent in value of the terms and conditions stipulated in
the Tenant's Notice within six months from the date of the Tenant's
Notice and if the Tenant shall fail to complete within such period
if it still wishes to assign the whole of the Premises it must
reinstate the procedure set out in this clause 4(15)
(e) Subject to the foregoing provisions of this sub-clause 4(15) not to
assign mortgage charge or underlet or in any other manner part with
possession of any part (being less than the whole) of the Premises
or agree to do so except that the Tenant may underlet the whole of
(but not more or less than) any Permitted Part or Permitted Parts in
accordance with paragraphs (h) and (i) of this sub-clause
(f) Subject to the foregoing provisions of this sub-clause 4(15) not to
assign underlet or otherwise part with possession of or the whole of
the Premises or agree to do so except that the Tenant may assign or
underlet the whole of the Premises in accordance with paragraph (g)
or (h) respectively of this sub-clause
(ASSIGNMENT)
(g) (i) Not to assign the whole of the Premises without first
obtaining the Landlord's consent issued within 2 months before
completion of the assignment which consent shall not be
unreasonably withheld or delayed but which may be granted
subject to any one or more of the conditions referred to in
paragraph (g)(ii) and which may be withheld if any one or more
of the circumstances referred to in paragraph (g)(iii) exist
14
(ii) The conditions referred to in paragraph (g)(i) (which are
specified for the purposes of section 19(1A) Landlord and
Tenant Act 1927) are:
AUTHORISED GUARANTEE
(a) that the Tenant shall enter into an authorised guarantee agreement
(as defined in section 16 Landlord and Tenant (Covenants) Act 1995)
with the Landlord in a form which the Landlord reasonably requires
THIRD PARTY GUARANTEE/RENT DEPOSIT
(b) that if so reasonably required by the Landlord the proposed assignee
shall have procured covenants with the Landlord by a guarantor or
guarantors (not being the Tenant or any guarantor) reasonably
acceptable to the Landlord in a form acceptable to the Landlord
(acting reasonably);
INTRA GROUP DEALINGS
(c) if the proposed assignee is a Group Company the Tenant shall have
procured either:
(A) if the Tenant's obligations under this lease are
guaranteed by another Group Company that such Group
Company covenants with the Landlord on the same terms
(mutatis mutandis) as those contained in clause 10; or
(B) if there is no guarantor of the Tenant's obligations under
this lease and if the assignee is not at the date of the
application for consent to the proposed assignment in the
reasonable opinion of the Landlord of financial standing
equivalent to or greater than the Tenant at the date of
this lease that the proposed assignee procures covenants
by a Group Company which is not the Tenant or the proposed
assignee and which is in the reasonable opinion of the
Landlord of financial standing equivalent to or greater
than the Tenant in the same terms (mutatis mutandis) as
those contained in clause 10; and
(iii) The circumstances referred to in paragraph (g)(i) (which are
specified for the purposes of section 19(1A) Landlord and
Tenant Act 1927) are:-
(a) where the Tenant's solicitors have not given an
undertaking to the Landlord's solicitors to pay all
reasonable legal surveyor's and management costs
disbursements and VAT arising on the application for
consent to such assignment whether or not consent is
15
granted unless the Landlord unreasonably withholds consent
in circumstances where it is required to be reasonable;
and/or
(b) where any of the rents and Interim Sum due from the Tenant
to the Landlord or the Management Company respectively
under this lease remain unpaid at the date of the
application for consent to the proposed assignment
(UNDERLETTING)
(h) Not to underlet the whole of the Premises or any Permitted Part
(each being referred to in this paragraph as the premises) except:-
(i) to a person who before the underletting shall have covenanted
with the Landlord to observe and perform the Tenant's
obligations under this lease during the sub-term to the extent
they relate to the premises demised by the underletting (other
than the payment of rents) and a covenant not to assign the
whole of the premises without the Landlord's consent (which
shall not be unreasonably withheld or delayed) and an
unqualified covenant not to assign part of the premises or to
underlet or otherwise part with possession or share the
occupation of the premises or any part of them
(ii) by reserving as a yearly rent without payment of a fine or
premium (in addition to the service and insurance and other
rents payable under this lease except the rent first hereby
reserved or (in the case of underletting of a Permitted Part) a
pro rata proportion of them) an amount equal to:-
(a) (in the case of an underletting of the Premises) the then
open market rack rental value of the Premises
(b) (in the case of an underletting of a Permitted Part) a pro
rata proportion of the then open market rack rental value
of the Premises
the proportion in each case being calculated by reference
to the Net Internal Area of the Permitted Part in relation
to the Net Internal Area of the Premises, in all cases
such rent to be payable by equal quarterly instalments in
advance on the usual quarter days and to be approved by
the Landlord prior to the underletting (such approval not
to be unreasonably withheld or delayed) but the amount of
such rent and the approval of the Landlord thereto may not
be used as evidence by the Tenant for the purpose of any
rent review pursuant to this lease
(iii) by a form of underlease:-
(a) by which the principal rent reserved by the
underlease is reviewed upwards only at not greater
than five year intervals during the sub-term in
accordance with the same
16
principles (mutatis mutandis) and at the times as
apply to the rent first reserved by this lease
(b) requiring the underlessee to observe and perform
all the covenants and other provisions binding on the
Tenant under this lease (other than the covenant by
the Tenant to pay rents) to the extent they relate to
the premises and containing:-
(A) a condition for re-entry by the underlessor on
breach of any covenant by the underlessee
(B) a qualified covenant not to assign the whole of
the premises and an absolute covenant not to
assign part of the premises or to underlet or
otherwise part with possession or share the
occupation of the premises or any part of them
(iv) with the Landlord's consent issued within three months
before completion of the underletting which consent
(subject to compliance with the foregoing conditions
precedent) shall not be unreasonably withheld or delayed
(i) In relation to an underlease of a Permitted Part:-
(i) not to include in the sub-demise any part of the entrance
to or the reception area of the Premises
(ii) to except from the underlease all necessary circulation
areas and plant and equipment which will serve the
Premises in common and to reserve a separate service
charge rent in respect of their maintenance repair and
renewal
(iii) not as a result of the grant to create or permit the
creation of more than three separate occupations affecting
the whole of the Premises (occupations in right of this
lease counting as one occupation)
(iv) not to grant or agree to grant the underlease without
providing for the exclusion of sections 24 to 28 inclusive
of the Landlord and Tenant Act 1954 in relation to the
underlease in pursuance of an Order duly made under
section 38(4) of that Act before the date of grant
(j) To enforce the observance and performance by every such underlessee
and its successors in title of the provisions of the underlease and
not expressly or impliedly to waive any breach of them nor vary the
terms of any underlease
(k) Not to agree any reviewed rent payable under an underlease without
the Landlord's consent and if the rent review under any underlease
is to be determined by an independent person not to agree his
appointment without the Landlord's consent (PROVIDED ALWAYS THAT the
Landlord shall not unreasonably withhold or delay any consent
required
17
under this sub-paragraph) and to procure that any representations
which the Landlord may wish to make in relation to the rent review
are duly submitted to the independent person and to provide to the
Landlord promptly on the same becoming available copies of any
representations made by or on behalf of the Tenant or the
underlessee in relation to such rent review
(SHARING OCCUPATION)
(1) Not to part with or share the occupation of the Premises or any part
of them except that the Tenant may share occupation with a company
which is (but only for so long as it remains) either the holding
company of the Tenant or a majority-owned subsidiary of the Tenant
or of the Tenant's holding company (as those expressions are defined
in section 736 Companies Act 1985) so long as the Tenant does not
grant the person sharing occupation exclusive possession (so that
such company occupies as licensee only without creating any
relationship of landlord and tenant) nor otherwise transfer or
create a legal estate and the Tenant shall notify the Landlord of
the identity of each company in occupation
REGISTRATION
(16) (a) Within twenty-one days after any disposition or devolution of
this lease or of any estate or interest in or derived out of it to
give notice in duplicate of the relevant transaction to the Landlord
for registration with a certified copy of the relevant instrument
and to pay to the Landlord a fair and reasonable fee for each such
registration of not less than twenty five pounds
(b) To register with the Landlord particulars of the determination of
every rent review under any underlease of the Premises within
fourteen days after the date of determination
PAYMENT OF COST OF NOTICES CONSENTS ETC.
(17) To pay on demand all reasonable expenses (including counsels' solicitors'
surveyors and bailiffs' fees) properly incurred by the Landlord in and
incidental to:
(a) the preparation and service of a notice under section 146 Law of
Property Act 1925 or in contemplation of any proceedings under
section 146 or 147 of that Act notwithstanding that forfeiture is
avoided otherwise than by relief granted by the court and
(b) every reasonable step taken during or after the expiry of the Term
in connection with the enforcement of the Tenant's obligations under
this lease including the service or proposed service of all notices
and schedules of dilapidations and
(c) every application for consent licence or approval under this lease
but not if the application is unreasonably refused or delayed or
granted subject to unreasonable conditions (where such consent is
not to be unreasonably withheld or delayed)
18
MACHINERY
(18) Not to install in the Premises any plant or machinery other than usual
office equipment without the Landlord's consent which shall not be
unreasonably withheld PROVIDED ALWAYS THAT no plant or machinery shall be
installed or operated in the Premises and nothing shall be done or
omitted in them which may cause:-
(a) the efficiency of the heating ventilation air conditioning and
cooling system installed in the building to be diminished or
impaired in any way
(b) noise dust fumes smell vibration or electrical interference
affecting or having any other intrusive effect on any other part of
the Building or other adjoining property or persons outside the
Premises
OBSTRUCTION/OVERLOADING
(19) Not to obstruct:-
(a) or damage any part of the Building or exercise any of the rights
granted by this lease in a way which causes nuisance or damage
(b) any means of escape
(c) or discharge any deleterious matter into
(i) any pipe drain or other conduit serving the Premises and (to
the extent they lie within the Premises) to keep them clear and
functioning properly or
(ii) any Service Media
(d) or stop-up or darken the windows and other openings of the Premises
nor to overload or cause undue strain to the Service Media or any
other part of the Building and in particular not to suspend any
undue weight from the ceilings or walls of the Premises and not to
exceed the following floor loadings:-
floor finishings: : 4 kN/m2 (80lbs per sq.ft)
live load : 1kN/m2 (20lbs per sq.ft)
(e) any requisite notice erected on the Premises including any erected
by the Landlord in accordance with its powers under this lease
PARKING/GOODS DELIVERY
(20) To ensure that all loading unloading deliveries and despatch of goods is
carried out only by using the service accesses and goods lifts designated
by the Landlord for the use of the Premises
PLANNING LAW AND COMPENSATION
(21) Without prejudice to clause 4(4) at all times during the Term to comply
with the provisions and requirements of Planning Law relating to or
affecting
19
(a) (i) the Premises
(ii) any operations works acts or things carried out executed done
or omitted on the Premises
(iii) the use of the Premises
(iv) the use by the Tenant of (and the exercise of any other rights
hereunder in respect of) any other parts of the building
(b) Subject to the provisions of paragraph (c) of this sub-clause as
often as occasion requires during the Term at the Tenant's expense
to obtain and if appropriate renew all planning permissions (and
serve all notices) required under Planning Law in respect of the
Premises whether for the carrying out by the Tenant of any
operations or the institution or continuance by the Tenant of any
use of the Premises or any part thereof or otherwise
(c) Not without the Landlord's consent (such consent not to be
unreasonably withheld or delayed) to apply for any planning
permission relating to the Premises (and not to apply for any such
planning permission relating to any other part of the Building) but
so that subject to compliance with paragraph (e) of this sub-clause
the Landlord's consent shall not be unreasonably withheld or delayed
to the making of a planning application in respect of the Premises
relating to any operations or use or other thing (if any) which
assuming it to be implemented in accordance with Planning Law would
otherwise not be in breach of the provisions of this lease
(d) If the Landlord so requires in connection with any relevant proposal
by the Tenant to apply for a determination under section 191 or 192
Town and Country Planning Act 1990
(e) If the Landlord consents in principle to any application by the
Tenant (which it hereby agrees to consider and determine with all
due expedition) for planning permission to submit a draft of the
application to the Landlord for its approval and to give effect to
its reasonable requirements in respect thereof and if and to the
extent the Landlord so requires to lodge the application with the
relevant authority in the joint names of the Landlord and the Tenant
and in duplicate
(f) Not to implement any planning permission before the Landlord has
acknowledged that its terms are acceptable nor before the Landlord
has received any cash or other security which it reasonably requires
for compliance with any conditions imposed by the planning
permission
(g) If the Landlord at the Landlord's cost reasonably requires or the
Tenant desires to lodge and progress diligently an appeal against
any refusal of an application for planning permission lodged in
respect of the Premises by the Tenant or by any person claiming
under or through the Tenant (whether or not lodged in its name
alone) the Landlord undertakes to cooperate fully with the Tenant in
respect of any such appeal unless such
20
appeal would be likely to have a material and adverse effect on the
Landlord's interests in the Building
(h) Unless the Landlord otherwise directs to complete before the expiry
of the Term all works on the Premises required as a condition
of any planning permission implemented by the Tenant or by any
person claiming under or through it
(i) If the Tenant receives or is entitled to receive any statutory
compensation under any Enactment in relation to its interest in the
Premises the Tenant shall on any determination of its interest prior
to the expiry of this lease by effluxion of time forthwith make such
provision as is just and equitable for the Landlord to receive its
due benefit from such compensation
INDEMNITY
(22) To indemnify the Landlord against all expenses proceedings costs claims
damages demands and any other liability or consequence arising out or in
respect of any breach of any of the Tenant's obligations under this lease
(including all costs reasonably incurred by the Landlord in an attempt to
mitigate any such breach) or of any act omission or negligence of the
Tenant or any person at the Premises with the Tenant's authority
DEFECTIVE PREMISES
(23) On becoming aware of the same (or when the Tenant ought reasonably to
have become aware of the same) to give notice forthwith to the Landlord
of any defect in the Premises which might give rise to:-
(a) an obligation on the Landlord to do or refrain from doing anything
in relation to the Premises or
(b) any duty of care or the need to discharge such duty imposed by the
Defective Premises Act 1972 or otherwise
and at all times to display and maintain all notices which the
Landlord may from time to time reasonably require to be displayed at
the Premises in relation to their state of repair and condition
INSURANCE AND FIRE FIGHTING EQUIPMENT
(24) (a) Not to do or omit anything by which any insurance policy (relevant
extracts of which shall have been provided to the Tenant) relating to
the Building or any part of it becomes void or voidable or by which
the rate of premium on such policy may be increased
(b) To comply with all proper requirements of the insurers and to
provide and maintain unobstructed appropriate operational fire
fighting equipment and fire notices on the Premises
(c) To notify the Landlord forthwith of:-
21
(i) any incidence of any Insured Risk on the Premises and of any
other event which ought reasonably to be brought to the
attention of insurers and of which the Tenant ought reasonably
to be aware
(ii) the insurable value of any fixture installed in the Premises by
the Tenant or any person claiming under or through the Tenant
(d) That if at any time the Tenant or any person claiming under or
through it shall be entitled to the benefit of any insurance of the
Premises to cause all money paid under such insurance to be applied
in making good the loss or damage in respect of which it was paid
(e) Subject to clause 5(2)(b) if the whole or any part of the Building
is damaged or destroyed by any of the Insured Risks at any time
during the Term and the insurance money under any insurance policy
effected by the Landlord is rendered wholly or partially
irrecoverable because of some act or default of the Tenant or any
person deriving title under or through the Tenant or their
respective servants agents or invitees forthwith to pay the Landlord
the whole amount of the insurance money so irrecoverable
DANGEROUS AND CONTAMINATIVE MATERIALS
(25) Not to keep place store or use or permit or suffer to be kept placed
stored or used in or upon or about the Premises any materials substance
or other thing of a dangerous inflammable combustible explosive corrosive
or offensive nature or any materials substance or other thing which may
in any way cause pollution injury or harm by percolation corrosion
contamination migration release or otherwise on beneath or in the
vicinity of the Premises
YIELD UP
(26) (a) At the expiry of the Term to remove all chattels and tenant's
fixtures and quietly to yield up the Premises reinstated in
accordance with the Reinstatement Specification and restored and
made good to the extent required under clause 4(12)(d) and in the
state of repair condition decorative order and layout otherwise
required by this lease and any licences or consents issued in
pursuance of it and to make good any damage so caused in a proper
and workmanlike manner
(b) The Tenant irrevocably authorises the Landlord to remove and dispose
of any chattels which may be left in the Premises within 28 days
after the Tenant has quit them (without being obliged to obtain any
consideration for the disposal) and the Tenant irrevocably declares
that any such chattels will stand abandoned by it
REGULATIONS AND COVENANTS
(27) To comply with:-
(i) all reasonable regulations reasonably made by the Landlord from
time to time and notified to the Tenant in writing for the good
management of the Building PROVIDED ALWAYS THAT no such
regulations shall purport to amend the terms expressed in
this lease and if there is any inconsistency between the terms
of this lease and the regulations the terms of this lease shall
prevail
(ii) all covenants stipulations and other matters affecting the
Premises and not to interfere with any rights easements or
other matters affecting the Premises
SECURITY AND ACCESS
(28) To use all reasonable endeavours to ensure that the Tenant's visitors to
the Premises observe such security regulations which may apply to them
HEAD LEASE
(29) (a) To observe and perform the covenants and conditions on the part of
the lessee contained in the Head Lease so far as they relate to the
Premises except the covenant for the payment of rent and except also
so far as the obligations relating to insurance fall to be observed
and performed by the Landlord pursuant to clause 5(2)
(b) Not to do or omit any act or thing which would or might cause the
Landlord to be in breach of the Head Lease
SERVICE CHARGE
(30) To pay the Service Charge (and VAT thereon) to the Management Company at
the times and in the manner provided for in clause 6 and schedule 5
without deduction or set off and to pay the Outside Normal Business Hours
Charge within 10 days of demand (either annually or by monthly
instalments) as the Management Company shall reasonably determine
PROVIDED THAT for the period from the date hereof until the earlier of
25th June 1997 and the date on which the Tenant commences full beneficial
occupation of the Premises following the works contemplated by the
Agreement for Initial Alterations the Service Charge payable by the
Tenant in any Accounting Period shall not exceed (pounds sterling)32,211
inclusive of VAT and PROVIDED FURTHER that the Service Charge payable in
respect of the twelve month period from the earlier of 25th June 1997 and
the date on which the Tenant commences full beneficial occupation of the
Premises following the works contemplated by the Agreement for Initial
Alterations shall be (pounds sterling)74,622.15 exclusive of VAT
5. LANDLORD'S COVENANTS
The Landlord covenants with the Tenant:
QUIET ENJOYMENT
(1) That if the Tenant observes and performs its covenants contained in
this lease the Tenant may peaceably hold and enjoy the Premises
without any lawful interruption by the Landlord or any person
rightfully claiming through under or in trust for it
23
INSURANCE
(2) (a) To keep the Building (except all tenants' plant and equipment and
trade fixtures) insured against the Insured Risks in the full current
replacement cost
(b) to use reasonable endeavours to procure that the interest of the
Tenant is noted on the insurance policy and to use reasonable
endeavours to further procure that the insurers waive any rights of
subrogation against the Tenant (or any lawful subtenant occupier or
invitee) and the Landlord will notify the Tenant if it is unable so
to procure and will duly consider the representations of the Tenant
regarding alternative insurers who may be prepared to procure that
the insurers waive any subrogation rights and/or note the interest
of the Tenant and will also permit the Tenant to make
representations to the insurers regarding the noting of the Tenant's
interest and/or waiver of rights of subrogation
(c) On request to supply the Tenant (but not more frequently than once
in any period of twelve months) with evidence of such insurance
(d) If and whenever during the Term the Building (except as aforesaid)
is damaged or destroyed by an Insured Risk and to the extent that
payment of the insurance monies is not refused because of any act
neglect default or omission of the Tenant or of any person deriving
title under or through the Tenant or their respective servants
agents and invitees subject to clause 5(2)(b) above the Landlord
will with all convenient speed take the necessary steps to obtain
any requisite planning permissions and consents and if they are
obtained to lay out the money received from the insurance of the
Building (except sums in respect of public liability and employer's
liability and loss of rent) towards replacing (but not necessarily
in facsimile reinstatement) the damaged or destroyed parts (except
as aforesaid) and in the case of the Premises to the Reinstatement
Specification as soon as reasonably practicable (and the Landlord
shall keep the Tenant informed of progress of any such insurance
claims and the Landlord's proposals for compliance with this
provision) PROVIDED ALWAYS THAT the Tenant shall have no claim
against the Landlord under this clause 5(2)(c) in respect of the
manner of replacement of the interior of any Lettable Unit other
than the Premises or any alteration to the Common Parts and PROVIDED
FURTHER THAT the Landlord shall not be liable to carry out the
replacement if it is unable (having used all reasonable endeavours)
to obtain every planning permission and consent necessary to execute
the relevant work in which event the Landlord shall be entitled to
retain all the insurance money received by it and if the Landlord so
retains the insurance money the Tenant shall be entitled to
determine this lease on not less than one month's prior written
notice
(e) In the event that the Premises have not been reinstated to the
Reinstatement Specification or essential means of access thereto
within the Building is not available in the circumstances
contemplated in subclause 5(2)(d) by the date five years and eleven
months following the date of such damage or destruction by an
Insured Risk the Tenant may
24
determine this lease on not less than one month's prior written
notice such notice to be served (if at all) within one month
after expiry of such five years and eleven months period
HEAD LEASE
(3) (a) To pay the rents reserved by the Head Lease and to perform so
far as the Tenant is not liable for such performance under the terms
of this lease but so far only as to preserve the existence of this
lease the covenants and conditions on the part of the lessee
contained in the Head Lease
(b) On the request and at the reasonable expense of the Tenant to take
all reasonable steps to enforce the covenants on the part of the
Superior Landlord contained in the Head Lease
(c) To take all reasonable steps at the Tenant's reasonable expense (to
the extent possible under the Head Lease) to obtain the consent of
the Superior Landlord wherever the Tenant makes application for any
consent required under this lease where the consent of both the
Landlord and the Superior Landlord is needed by virtue of this
lease and tlie Head Lease
ELECTRICITY PROVISION
(4) Subject to clause 7(3) to use all reasonable endeavours to provide or
procure the provision of electricity to the Premises to the extent
necessary to meet the requirements of the Tenant having regard to the
overall electricity services design standards for the Building as a
whole and to all relevant statutory provisions from time to time
regulating the supply and utilisation of electricity and the terms and
conditions relative thereto from time to time imposed by the electricity
provider chosen by the Landlord
MANAGEMENT COMPANY ACCESS
(5) To allow the Management Company such rights over the Building as it
requires from time to time for the due and proper provision of the
Services
VAT INDEMNITY
(6) The provisions of schedule 8 shall apply in relation to VAT liability on
the rent first reserved and:-
(a) Whenever VAT is properly chargeable in respect of any supply made
hereunder by the Landlord to the Tenant the Landlord shall no later
than thirty days after the due date for payment in respect of such
supply issue a valid VAT invoice or audit note (as the case may be
to the Tenant)
(b) Subject to (6)(c) below all consideration payable by the Landlord
to the Tenant shall be exclusive of VAT which the Landlord shall
pay in addition on production of a valid VAT invoice
(c) The capital sum referred to in clause 3 above shall be inclusive
of VAT save that if the Landlord is at any stage able to recover
such VAT the Landlord shall pay to the Tenant a further amount
equal to VAT on the capital sum
25
NAMING RIGHTS
(7) The Landlord shall only name the Building in accordance with its postal
address from time to time
NOTIFICATION OF NOTICES
(8) The Landlord will inform the Tenant as soon as reasonably practicable but
in any event within 5 working days of receipt of the same of any notice
served by the Superior Landlord alleging a breach of the Head Lease which
would threaten the existence of this lease
6. PROVISION OF SERVICES
The Management Company covenants with the Tenant to use all reasonable
endeavours:-
(1) Well and substantially to repair and properly clean and decorate the
structure of the Building (including the structure of the roofs
foundations external and internal walls and columns and structural
slabs of the ceilings and floors) the external surfaces of the
Building (including the whole of the glazing within the external
walls of the Building) and the Common Parts and (where consistent
with an obligation to repair) to replace the same
(2) To keep the Service Media designed for common or general use and the
Landlord's Services Equipment in good and substantial repair and in
clean condition and at all times in good and safe working order
(3) To keep the lifts in the Building clean and in good and substantial
repair and condition and at all times in good and safe working order
(4) Provide heat and air conditioning and chilled water to the
Premises (subject to the Tenant paying Outside Normal Business
Hours Charge in relation to the provision of such services
outside Normal Business Hours) such heat being sufficient to
maintain an air temperature in the Premises measured at the main
trunk connections to the floor as follows:
Air Conditioning and Heating
Design Parameters:
External Conditions:
Summer 29(degrees)C DB 20(degrees)C WB
Winter -4(degrees)C DB 100% relative humidity
Internal Conditions Office
Accommodation -
Summer 22(degrees)C DB + 1(degrees)C
Winter 20(degrees)C DB minimum
Humidity Office Accommodation -
26
Summer 50% +/-10%
Winter 50%+/- 10%
(5) To ensure that the Common Parts are at all times kept clean tidy and
unobstructed
(6) Subject to clause 7(3) and clause 7(6) to provide or procure the
provision of electricity to the Premises and each and every part thereof
designed to receive the same to the extent necessary to meet the
reasonable requirements of the Tenant and other lawful occupiers of the
Premises
(7) To comply with the requirements of any statute (already or in the future
to be passed) or any government department local authority other public
or competent authority or court of competent jurisdiction relating to the
Building or any part for which any tenant or occupier of the Building is
not directly or exclusively liable
(8) To ensure that at all times (meaning for the avoidance of doubt 24 hours
a day during the Term) there are both such security officers at and
patrolling the Building as is reasonably appropriate for premises of the
same size and nature as the Building and that the main reception to the
Building is properly and adequately manned
(9) To provide or procure the provision of:-
(a) the Services during Normal Business Hours; and
(b) such of the Services outside Normal Business Hours as in the
Management Company's reasonable discretion are appropriate to
provide to a high class office building in the City of London
outside Normal Business Hours; and
(c) such of the Services outside Normal Business Hours as the Tenant
shall previously request (but subject to the Tenant being
responsible for the Outside Normal Business Hours Charge)
(having regard in all cases to and in accordance with the overall design
standards for the Building as a whole and subject to the limitations
contained in Clause 7(6)) in an efficient and economic manner and in
accordance with good estate management provided that the Management
Company shall be entitled to employ such managing agents professional
advisers contractors and other persons as it shall from time to time
reasonably think fit for the purpose of the performance of the Services
PROVIDED THAT the Management Company shall not be liable for:-
(without prejudice to the provisions of clause 7(3)) any closure of any of the
Common Parts or interruption in the provision of the Services or stoppage or
severance affecting any of the Service Media or any interruption to the supply
of electricity to the Premises or the Common Parts or temporary closure or
diversion of any of the Common Parts or Service Media by reason of necessary
inspection repair maintenance or replacement thereof or any part thereof or
any plant machinery equipment installations or apparatus used in connection
therewith or damage thereto or destruction thereof by any risk
(whether or not an Insured Risk) or by reason of electrical mechanical or
other defect or breakdown or frost or other inclement conditions or
shortage of fuel materials supplies or labour or whole or partial failure
or stoppage of any mains supply due to any circumstances beyond the
control of the Management Company PROVIDED ALWAYS that the Management
Company shall use all reasonable endeavours to minimise the adverse
effects of any such circumstances and to remedy any such interruption
closure or diversion as soon as reasonably practicable PROVIDED FURTHER
that in the event of the Landlord or the Management Company being unable
to provide air conditioning or electricity to the Premises in such
circumstances the Tenant shall be entitled to carry out (the Landlord and
Management Company affording the Tenant reasonable access to do so) all
necessary remedial works to such electricity or air conditioning PROVIDED
THAT:
(a) the Tenant shall carry out such works in a good and workmanlike
manner and make good all damage caused causing as little
inconvenience to the Landlord Management Company and other tenants
as reasonably practicable
(b) the Landlord or the Management Company shall be responsible for the
costs of the Tenant in carrying out such remedial works when such
works are being carried out as a consequence of any breach of the
Landlord's or Management Company's covenants hereunder
7. PROVIDED ALWAYS AND IT IS HEREBY AGREED AND DECLARED THAT:
FORFEITURE AND RE-ENTRY
(1) Without prejudice to any other remedies and powers contained in
this lease or otherwise available to the Landlord if
(a) the whole or part of the rents shall be unpaid for twenty-one
days after becoming payable (whether or not formally demanded)
or
(b) any of the Tenant's covenants in this lease are not performed
or observed in the manner and at the times herein specified or
(c) the guarantee granted by the Guarantor or any other guarantor
of the Tenant's obligations is or becomes unenforceable (in
whole or in part) for any reason whatsoever and no suitable
alternative security is provided to the Landlord within a
period of one month or
if the Tenant (or if more than one person any one of them):-
(d) being a company enters into liquidation whether voluntarily
(except for reconstruction or amalgamation of a solvent
company) or compulsorily or has a provisional liquidator or a
receiver (including an administrative receiver) appointed or
its directors pass a resolution to petition for an
administration order or one or more of them swears an affidavit
in support of such a petition or is the subject of an
administration order or a petition for one or of a voluntary
arrangement or a proposal for one under Part I Insolvency Act
1986
(e) being a company incorporated outside the United Kingdom is the
subject of any proceedings or event analogous to those referred
to in clause 7(1)(d) in the country of its incorporation
28
(f) being an individual is the subject of a bankruptcy petition or
bankruptcy order or of any application or order or appointment
under section 253 or section 273 or section 286 Insolvency Act
1986 or otherwise becomes bankrupt or insolvent or dies
the Landlord may at any time thereafter (and notwithstanding the
waiver of any previous right of re-entry) re-enter the Premises
without prejudice to the Tenant's right to relief against forfeiture
whereupon this lease shall absolutely determine but without
prejudice to either partys right of action against the other in
respect of any antecedent breach of the covenants in this lease
LETTING SCHEME USE AND EASEMENTS
(2) No letting or building scheme exists or shall be created in relation to
the Building and (subject only to those easements expressly granted by
this lease) neither the Tenant nor the Premises shall be entitled to any
easement or quasi-easement whatsoever and nothing herein contained or
implied shall give the Tenant the benefit of or the right to enforce or
to have enforced or to prevent the release or modification of any right
easement covenant condition or stipulation enjoyed or entered into by
any tenant of the Landlord in respect of property not demised by this
lease or prevent or restrict the development or use of the remainder of
the Building or any other land
COMMON PARTS AND SERVICE MEDIA
(3) Subject always to the rights of the local authority the relevant supply
authorities and any other competent authority the Common Parts and the
Service Media are at all times subject to the exclusive control and
management of the Landlord who may from time to time (if it shall be
necessary or reasonable to do so for the benefit of the Building or
otherwise in keeping with the principles of good estate management) alter
divert substitute stop up or remove any of them (leaving available for
use by the Tenant reasonable and sufficient means of access to and egress
from and servicing for the Premises)
SERVICE OF NOTICES
(4) (a) In addition to any other mode of service any notices to be
served under this lease shall be validly served if served in
accordance with section 196 Law of Property Act 1925 as amended
by the Recorded Delivery Service Act 1962 or (in the case of
any notice to be served on the Tenant) by sending it to the
Tenant at the Premises PROVIDED THAT whilst the Tenant
hereunder is Donaldson Lufkin & Jenrette International Limited
such notice shall also be served on the offices for the time
being of SJ Berwin & Co (attention: Edward Page) or such other
firm of solicitors notified in writing to the Landlord and 277
Park Avenue New York New York 10172
(b) If the Tenant or any guarantor comprises more than one person
it shall be sufficient for all purposes if notice is served on
one of them but a notice duly served on the Tenant will not
need to be served on any guarantor
29
RENT CESSER
(5) If and whenever during the Term:-
(a) the Premises (other than the Tenant's plant and equipment and
tenant's fixtures) or the means of access to the Premises within
the Building are damaged or destroyed by any of the Insured Risks
so that the Premises are incapable of beneficial occupation and
use and
(b) subject to clause 5(2)(b)the insurance of the Building or the
payment of any insurance money has not been vitiated by the act
neglect default or dmission of the Tenant or of any person
deriving title under or through the Tenant their respective
servants agents and invitees
the rent first reserved by this lease and the Service Charge or a fair
proportion of them according to the nature and extent of the damage
sustained shall be suspended and cease to be payable from the date of
destruction or damage until whichever is the earlier of the date on which
the Premises are reinstated to the Reinstatement Specification and if
applicable the essential means of access within the Building are
available and the date of expiry of the period for which insurance of
loss of rent is effected and any dispute about such suspension shall be
referred to the award of a single arbitrator to be appointed in default
of agreement on the application of the Landlord or the Tenant to the
President for the time being of The Royal Institution of Chartered
Surveyors in accordance with the Arbitration Acts 1950 and 1979
LANDLORD'S LIABILITY
(6) The Landlord shall not be liable for (without prejudice to the provisions
of clause 7(3)) any closure of any of the Common Parts or stoppage or
severance affecting any of the Service Media or any interruption to the
supply of electricity to the Premises or temporary closure or diversion
of any of the Common Parts or Service Media by reason of necessary
inspection repair maintenance or replacement thereof or any part thereof
or any plant machinery equipment installations or apparatus used in
connection therewith or damage thereto or destruction thereof by any risk
(whether or not an Insured Risk) or by reason of electrical mechanical or
other defect or breakdown or frost or other inclement conditions or
shortage of fuel materials supplies or labour or whole or partial failure
or stoppage of any mains supply due to any circumstances beyond the
control of the Landlord PROVIDED ALWAYS that the Landlord shall use all
reasonable endeavours to minimise the adverse effects of any such
circumstances and to remedy any such interruption closure or diversion as
soon as reasonably practicable PROVIDED FURTHER that in the event of the
Landlord or the Management Company being unable to provide air
conditioning or electricity to the Premises in such circumstances the
Tenant shall be entitled to carry out (the Landlord and Management
Company affording the Tenant reasonable access to do so) all necessary
remedial works to such electricity or air conditioning PROVIDED THAT:
(a) the Tenant shall carry out such works in a good and workmanlike
manner and make good all damage caused causing as little
inconvenience to the Landlord Management Company and other tenants
as reasonably practicable)
30
(b) the Landlord or the Management Company shall be responsible for the
costs of the Tenant in carrying out such remedial works when such
works are being carried out as a consequence of any breach of the
Landlords or Management Company's covenants hereunder
ARBITRATION FEES
(7) The fees of any arbitrator incurred in any arbitration proceedings
arising out of this lease may be paid to the arbitrator by the Landlord
or by the Tenant notwithstanding any direction or prior agreement as to
liability for payment and any sums so paid for which the party who pays
them initially is not ultimately liable shall be repayable on demand by
the party who is liable for them
RENT REVIEW MEMORANDUM
(8) Forthwith after every agreement or determination of any increase in the
amount of the rent reserved and made payable by virtue of schedule 4 a
memorandum recording the increase shall be attached to this lease and to
the counterpart and such memorandum shall be signed by or on behalf of
the Landlord and the Tenant respectively
NO WARRANTY AS TO USE
(9) Nothing contained in this lease shall constitute or be deemed to
constitute a warranty by the Landlord that the Premises are authorised
under Planning Law to be used or are otherwise fit for any specific
purpose
DISPUTES
(10) (a) Any dispute between the Tenant and any other tenant or occupier
of any part of the Building relating to any easement or right
affecting the Building or any part of it shall (unless the Landlord
shall by notice to the parties concerned renounce its power to
determine it) be referred to the Landlord whose decision acting
reasonably (acting in the capacity of an expert) shall be binding
upon the parties to the dispute but the Landlord shall give written
reasons for his decision
(b) Where any issue (other than one relating to a rent review) arising
out of or under or relating to the Head Lease which also affects or
relates to the provisions of this lease is to be determined as
provided in the Head Lease the determination of such issue pursuant
to the provisions of the Head Lease shall be binding on the Tenant
as well as the Landlord for the purposes both of the Head Lease and
this lease
COMPENSATION
(11) Except where any Enactment prohibits the right to compensation being
reduced or excluded by agreement, neither the Tenant nor any occupier of
the Premises shall be entitled on quitting them to claim from the
Landlord any compensation under the Landlord and Tenant Act 1954
31
RATEABLE VALUE APPEALS
(12) (a) If the Landlord or the Tenant intends to make a proposal to
alter the entry for the Premises in the local non-domestic rating
list it shall notify the other party of its intention and shall
incorporate in the proposal such proper and reasonable
representations as may be made by or on behalf of that party
(b) The Tenant shall not agree the level of rates liability attributable
to the Premises following the date hereof without the Landlord's
consent (such consent not to be unreasonably withheld or delayed)
PROVIDED that for the avoidance of doubt the Landlord shall not be
entitled to refuse its consent to any level of rates which the
Tenant has negotiated with the appropriate rating authority which is
lower than any level of rates negotiated by or on behalf of the
Landlord in respect of the Building on a pro rata basis
NO WARRANTY AS TO SECURITY
(13) Nothing contained in this lease (and no exercise of any of the
Landlord's powers under this lease) shall constitute or be deemed
to constitute a warranty by the Landlord that the Premises shall
be kept secure or that any security service to the Common Parts
shall be effective
JURISDICTION
(14) This lease shall be governed by and construed in all respects in
accordance with the law of England and for the benefit of the
Landlord the English courts shall have exclusive jurisdiction in
relation to disputes arising under or connected with this lease
and the Tenant agrees that any process may be served on it by
leaving a copy of the relevant document at the Premises provided
however that the Landlord shall retain the right at its sole
election to sue the Tenant elsewhere including in the courts of
the Tenant's domicile
OVERRIDING LEASE
(15) If at any time during the Term the Landlord shall grant a tenancy
of the reversion immediately expectant on the determination of
this lease whether pursuant to Section 19 Landlord and Tenant
(Covenants) Act 1995 or otherwise any covenant on the part of the
Tenant to obtain the consent of the Landlord under this lease to
any dealing shall be deemed to include a further covenant also to
obtain the consent of the lessor under such tenancy to such
dealing
8. LANDLORD'S GUARANTOR
(1) The Landlord's Guarantor at the request of the Landlord and in
consideration of the Tenant agreeing to take this lease covenants
and agrees with the Tenant that all of the Landlord's obligations
contained in this lease will be performed and observed in the
manner and at the times herein specified and that if there is
default in performing and observing any of the Landlord's
obligations (notwithstanding any time or indulgence granted by
the Tenant to the Landlord or compromise, neglect or forbearance
on the part of the Tenant in enforcing the observance of the
Landlord's obligations in this lease) the Landlord's Guarantor
32
will observe and perform (or procure the performance and observance of)
the obligations in respect of which the Landlord shall be in default
(2) The Landlord's Guarantor at the request of the Management Company and in
consideration of the Tenant agreeing to pay the Service Charge covenants
and agrees with the Tenant that all of the Management Company's
obligations contained in this lease will be performed and observed in the
manner and at the times herein specified and that if there is default in
performing and observing any of the Management Company's obligations
(notwithstanding any time or indulgence granted by the Tenant to the
Management Company or compromise, neglect dr forbearance on the part of
the Tenant in enforcing the observance of the Management Company's
obligations in this lease) the Landlord's Guarantor will observe and
perform (or procure the performance and observance of) the obligations in
respect of which the Management Company shall be in default
9. TENANT'S OPTION TO DETERMINE
(1) The Tenant may (subject to compliance with the provisions of this
clause) determine this lease as at 24th October 2008
(2) If the Tenant wishes so to determine the Tenant shall give to the
Landlord the Termination Notice such notice to expire on
24th October 2008
(3) If the Tenant duly serves the Termination Notice it shall procure
that vacant possession of the Premises will be available on
24th October 2008 free of occupation by and of any estate or interest
rested in the Tenant or any third party and this lease shall not
determine as a result of any notice served by the Tenant if the
Tenant is in material breach of any of its covenant to pay the rents
and Interim Sum contained in this lease (including those contained in
this sub-clause) as at 24th October 2008 except to the extent if at
all the Landlord in its absolute discretion waives compliance with
any of them
10. GUARANTEE AND GUARANTOR'S INDEMNITY
The Guarantor at the request of the Tenant and in consideration of the
grant of this lease covenants and agrees with the Landlord and during
the Term and any period of holding over continuation or extension
thereof whether by an Enactment common law or otherwise (subject to
clause 4(15)):-
(1) The rents reserved by this lease (whether or not ascertained as to
amount) will be duly paid and that all the Tenant's obligations
contained in it will be performed and observed in the manner and at
the times herein specified and that if there is any default in paying
the rents or in performing and observing the Tenant's obligations
(notwithstanding any time or indulgence granted by the Landlord to
the Tenant or compromise neglect or forbearance on the part of the
Landlord in enforcing the observance and performance of the Tenant's
obligations in this lease or any refusal by the Landlord to accept
rents tendered by or on behalf of the Tenant) the Guarantor will
observe and perform the obligations in respect of which the Tenant
shall be in default and will on demand and on a full indemnity basis
pay to the Landlord an amount equivalent to the rents or other
amounts not paid and/or any loss damage costs charges expenses or
any other liability incurred or suffered by the Landlord as a
result of the default (and in the event of non-payment shall pay
interest at the Interest Rate from the date of demand to the
33
Guarantor until the date of payment) and will otherwise indemnify and
hold harmless the Landlord against all actions claims costs damages
demands expenses losses and proceedings arising from or incurred by the
Landlord as a result of such non-performance or non-observance
(2) If any liquidator or other person having power to do so disclaims this
lease or if it shall be forfeited or if the Tenant ceases to exist and if
the Landlord by written notice served within three months after the date
of disclaimer or forfeiture or the Landlord having actual knowledge of
the cesser of existence of the Tenant (each a "Trigger Event") requires
the Guarantor to accept a lease of the Premises for a term computed from
the date of the Trigger Event to the date on which the Term would have
expired by effluxion of time and at the same rents and subject to the
same covenants stipulations conditions and provisions (except that the
Guarantor shall not be required to procure that any other person is made
party to that lease as guarantor) as are reserved by and contained in
this lease immediately before the Trigger Event and with coincidental
Review Dates (the said new lease and the rights and liabilities
thereunder to take effect as from the date of such Trigger Event) the
Guarantor shall forthwith accept such lease accordingly and execute and
deliver to the Landlord a counterpart of it and indemnify the Landlord
upon demand against the costs incurred on the grant of the new lease
(3) The liability of the Guarantor hereunder shall not be released reduced
affected or prejudiced by reason of:-
(a) any variation or waiver of or addition to the terms of this lease or
any of them agreed between the Landlord and the Tenant or
(b) the surrender by the Tenant of part of the Premises (in which event
the liability of the Guarantor shall continue in relation to the
Tenant's obligations in respect of the part of the Premises not so
surrendered) or
(c) any legal limitation immunity disability incapacity occurrence of
insolvency or the winding-up of the Tenant or
(d) (without limitation to the foregoing) of any other act or thing act
or thing by which (but for this provision) the Guarantor would have
been discharged or released (in each case in whole or in part) from
liability under this guarantee and indemnity
or any combination of any two or more of such matters
(4) If a Trigger Event occurs and for any reason the Landlord does not
require the Guarantor to accept a new lease of the Premises in accordance
with clause 8(2) the Guarantor shall pay to the Landlord on demand (in
addition to any other loss damage costs charges expenses or other
liability which the Guarantor may be required to make good hereunder and
without prejudice to any other rights of the Landlord) an amount equal to
the rents which would have been payable hereunder but for such Trigger
Event (so far as such rents do not otherwise continue to be payable) for
the period commencing on the date of such Trigger Event and ending on
whichever is the earlier of the date one year after the date of such
Trigger Event and the date (if any) upon which rent is first payable in
respect of the whole of the Premises on a reletting thereof
34
(5) Without prejudice to the rights of the Landlord against the Tenant the
Guarantor shall be a principal obligor in respect of its obligations
under this clause and not merely a surety and accordingly the Guarantor
shall not be discharged nor shall its liability hereunder be affected by
any act or thing or means whatsoever by which its said liability would
not have been discharged if it had been a primary debtor
(6) The Guarantor shall pay all reasonable charges (including legal and other
costs on a full indemnity basis) incurred by the Landlord in relation to
the Landlord's enforcement of this guarantee and indemnity against the
Guarantor or for enforcing payment by the Guarantor of amounts
indemnified by it hereunder
(7) The Landlord may at its option enforce the terms of this guarantee and
indemnity against the Guarantor without having first enforced the
covenants and terms of this lease against the Tenant and also without
first having recourse to any other rights or security which the Landlord
may have obtained in relation to this lease
(8) The Guarantor shall not be entitled to participate in any security held
by the Landlord in respect of the obligation of the Tenant under this
lease or to any right of subrogation in respect of any such security
until all the obligations owed to the Landlord by the Tenant and the
Guarantor hereunder have been fully and unconditionally fulfilled and
discharged
(9) The Guarantor shall not claim in any liquidation bankruptcy composition
or scheme of arrangement in respect of the Tenant in competition with the
Landlord and if and to the extent that it receives the same shall remit
to (and until remission shall hold in trust for) the Landlord all and any
monies received from any liquidator trustee receiver or out of any
composition or arrangement or from any supervisor thereof until all the
obligations of the Tenant and the Guarantor hereunder owed to the
Landlord have been fully and unconditionally fulfilled and discharged
(10) This guarantee and indemnity shall enure for the benefit of the
Landlord's successors in title under this lease without the necessity for
any assignment thereof
(11) While Donaldson, Lufkin & Jenrette International Limited remains the
Tenant this guarantee and indemnity shall only apply if and for so long
as the total shareholders funds and reserves of Donaldson, Lufkin &
Jenrette International Limited are or fall below the value of Fifty
million pounds ((pounds sterling)50,000,000) AND Donaldson, Lufkin &
Jenrette International Limited and Donaldson, Lufkin & Jenrette Inc.
shall notify the Landlord at the beginning of each period in which this
guarantee and indemnity applies and again when it ceases to apply AND for
the avoidance of doubt this guarantee (subject to compliance by the
Tenant with clause 4(15)) shall automatically cease on any lawful
assignment of this lease (but without prejudice to either party's rights
against the other in respect of any antecedent breaches of this lease)
unless in the circumstances contemplated by clause 4(15)(g)(ii)(b) it is
reasonable for Donaldson, Lufkin & Jenrette Inc. to remain the guarantor
hereunder of the liabilities of Donaldson, Lufkin & Jenrette International
Limited PROVIDED FURTHER that Donaldson, Lufkin & Jenrette Inc shall in
such circumstances automatically be released on a second assignment of
this lease
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11. STAMP DUTY CERTIFICATE
It is hereby certified that there is no agreement for lease to which
this lease gives effect
IN WITNESS whereof this Deed has been executed by the parties hereto and is
intended to be and is hereby delivered on the date first above written
36
SCHEDULE 1
(THE PREMISES)
ALL THOSE office premises situate on the twenty-fifth floor and being part of
the Building which are shown on the Plans and thereon verged red for
identification purposes only ALL which premises include:-
(a) the plaster linings and other interior coverings and facing materials of
all walls and of any columns within or bounding the said premises
(b) the screed the raised floor the fixed and unfixed floor coverings and all
materials lying between the upper surface of the structural floor slab
and the raised floor surface
(c) the ceilings including all materials forming part of them lying and the
void space (if any) above such ceilings but below the lower surface of
the structural ceiling slab
(d) all non-load bearing walls lying within the said premises
(e) all plant and other apparatus and conducting media which are designed to
serve the said premises exclusively including any which the Landlord may
permit under clause 4(14) and whose operation does not have any impact on
the central building systems
(f) the following items supplied and fitted by the Landlord:-
(i) venetian horizontal perforated blinds on the inside of the external
windows of the Premises
(ii) electricity check meter
but exclude:-
(i) all Service Media and Landlord's Services Equipment and
(ii) the load bearing structure of the Building including the load bearing
structure of the roofs foundations external and internal walls and
columns and the structural slabs of the ceilings and floors and
(iii)the external surfaces of the Building and the whole of the window
glazing and window frames and other fenestration units constructed in the
external walls and in the other boundaries of the said premises
SCHEDULE 2
(EASEMENTS AND RIGHTS GRANTED)
1. The right in connection with the Permitted Use subject to the provisions
of clause 7(3) and subject to compliance with all reasonable rules and
regulations in connection with the exercise of such right as may be
prescribed from time to time by the Landlord:-
(1) for the Tenant its employees servants and duly authorised agents
invitees and visitors for the purpose only of ingress and egress to
and from the Premises to use the Common Parts and to use all means
of escape but only when needed in an emergency and
(2) to use the Service Media
37
2. The right of support shelter and protection for the Premises from any
adjoining or neighbouring parts of the Building as enjoyed by the
Premises at the date of this lease
3. The right to have displayed the name or trading style of the Tenant and
any authorised sub-tenants or permitted occupiers (subject to a maximum
of four names at any particular time) on the signboard in the entrance
lobby of the Building provided by the Landlord pursuant to paragraph 14
of Part I of schedule 6 and the right to install a sign displaying the
name of the Tenant at the entrance to the Premises the precise location
size and style of such sign to be subject to the approval of the Landlord
(such approval not to be unreasonably withheld or delayed)
4. The right to install a supplementary air conditioning system and UPS
within the 14th floor plant area in the Building in a manner and in a
location to be approved by the Landlord such approval not to be
unreasonably withheld or delayed (in accordance with the provisions of
clause 4(12)) and a right of access to such 14th floor plant area at all
reasonable times on reasonable prior notice (save in the case of
emergency) for repair and maintenance and PROVIDED that on determination
of the Term the Tenant shall remove any such installation and reinstate
the plant room area to the reasonable satisfaction of the Landlord
(making good all damage caused in such removal)
5. The right to use and to have reasonable access for repair and maintenance
(on reasonable prior written notice to the Landlord) those works or
installations within or on the Building (but outside the Premises) for
which consent has been given pursuant to the Agreement for Initial
Alterations
6. The exclusive right to use the lavatories on the same floor as the
Premises subject to the Tenant being responsible for all elements of
Service Cost relating to such toilets should any other tenant of
accommodation in the Building object to meeting any proportion of Service
Cost in relation to such facilities (on the basis of such exclusive use)
SCHEDULE 3
(EXCEPTIONS AND RESERVATIONS)
1. The right to build alter or extend (whether vertically or laterally) any
building notwithstanding that the access of light and air or either of
them to the Premises and the lights windows and openings thereof may be
affected
2. The right at reasonable times on reasonable prior written notice (except
in an emergency where no notice need be given) to enter upon the Premises
as often as may be necessary for the purpose of complying with the
covenants of the Head Lease for all the purposes for which the Tenant
covenants in this lease to permit entry and for all purposes in
connection with the carrying out of the Services and for the purposes of
complying with any statutory requirements
3. The right to use and to construct inspect maintain repair divert and
otherwise alter stop up and relay and to make connections to any Service
Media in on or under the Premises at any time during the Term for the
benefit of any other part of the Building or any adjacent or neighbouring
land
4. The right to erect and maintain scaffolding on or against any part of the
Building so long as reasonable and sufficient means of access to and
egress from and servicing the Premises are maintained
38
5. All rights of light air and other easements and rights (but without
prejudice to those expressly granted by this lease) enjoyed by the
Premises from or over any other part or parts of the Building or any
adjacent or neighbouring land
6. The right of support protection and shelter for the benefit of other
parts of the Building from the Premises
7. The right for one or more members of any security staff employed by the
Landlord or its agents at any time or times on reasonable prior notice
(save in the case of emergency where no notice is required) to enter the
Premises if it shall be considered necessary or desirable so to do in
connection with the security of the Building
8. The right for the tenant or occupier of any other part of the Building
authorised by the Landlord having first given reasonable written notice
to the Tenant at reasonable times in the daytime and at any time and
without notice in case of emergency to enter the Premises for the purpose
of repairing that other part of the Building making good any damage so
caused to the reasonable satisfaction of the Tenant
9. The rights reserved to the Superior Landlord (by covenant or by express
reservation) in the Head Lease
PROVIDED ALWAYS THAT if the Landlord or its employees or the persons
authorised by the Landlord exercises any of the rights by carrying out work on
the Premises it shall cause as little inconvenience as possible and as soon as
reasonably practicable make good any damage caused to them unless the right
has been exercised because of some breach by the Tenant or by any person
claiming through it
SCHEDULE 4
(THE FIRST RESERVED RENT AND THE REVIEW THEREOF)
1. In this schedule the following expressions have the respective specified
meanings:-
(1) "Current Rent" means the amount of the yearly rent first reserved by
this lease payable immediately before the relevant Review Date
(2) "Review Rent" means the yearly market rent which might reasonably be
expected to be payable following the expiry of any period at the
beginning of the term which might be negotiated in the open market
for the purposes of fitting out during which no rent or a
concessionary rent is payable or following the payment of any
capital sum or fitting out contribution which might be negotiated in
the open market for the purposes of fitting out (and on the
assumption that the lessee has had the benefit of such rent free or
concessionary rent period or capital sum or fitting out contribution
and has used the same fully to fit out the Premises for the
Permitted Use to the lessee's particular requirements) if the
Premises had been let in the open market by a willing lessor to a
willing lessee with vacant possession on the relevant Review Date
without fine or premium for a term often years computed from the
relevant Review Date taking into account the lessee's right at the
expiration of the term to be granted a new tenancy under Part II
Landlord and Tenant Act 1954 and otherwise upon the provisions (save
as to the amount of the rent first reserved by this lease but
including the provisions for rent review at five-yearly intervals)
contained in this lease and on the assumption if not a fact that the
said provisions have been fully complied with and on the further
assumptions that:-
39
(a) the Permitted Use and the Premises comply with Planning Law and
every other Enactment free from any onerous condition
restriction and limitation and that the lessee may lawfully
implement and carry on the Permitted Use
(b) no work has been carried out to the Premises which has
diminished their rental value
(c) in case the Building or any part of it has been destroyed or
damaged it has been fully restored
(d) the Premises have been fitted out to no less standard than that
set out in the Reinstatement Specification
but disregarding any effect on rent of:-
(i) the fact that the Tenant or any underlessee or other permitted
occupier or their respective predecessors in title has been or
is in occupation of the Premises
(ii) any goodwill attached to the Premises by the carrying on in
them of the business of the Tenant or any underlessee or their
respective predecessors in title or other permitted occupier
(iii) (without prejudice to paragraphs 1(2)(b) and 1(2)(c) of this
schedule) any works carried out to the Premises during the Term
by the Tenant or any permitted underlessee in either case at
its own expense in pursuance of a licence granted by the
Landlord where required and otherwise than in pursuance of any
obligation to the Landlord
(iv) the works carried out to the Premises by the Tenant or carried
out by the Landlord at the expense of the Tenant pursuant to
the Agreement for Initial Alterations
(3) "Review Surveyor" means an independent chartered surveyor appointed
pursuant to paragraph 3(1) of this schedule and if to be nominated
by or on behalf of the President for the time being of the Royal
Institution of Chartered Surveyors the said President to be
requested to nominate an independent chartered surveyor having not
less than ten years practice in the City of London next before the
date of his appointment and recent substantial experience in the
letting and valuation of office premises of a similar character and
quality to those of the Premises and who is a partner or director of
a leading firm or company of surveyors having specialist market and
valuation knowledge of such premises
2. The yearly rent first reserved and payable from each Review Date until
the next following Review Date or (in the case of the period commencing
on the last Review Date during the Term) until the expiry of the Term
shall be the higher of:-
(1) the Current Rent (ignoring for this purpose any rent cesser pursuant
to clause 7(5)) and
(2) the Review Rent
40
3. If the Landlord and the Tenant shall not have agreed the Review Rent by
the date three months before the relevant Review Date it shall (without
prejudice to the ability of the Landlord and the Tenant to agree it at
any time) be assessed as follows:-
(1) the Review Surveyor shall (in the case of agreement about his
appointment) be forthwith appointed by the Landlord or the Tenant to
assess the Review Rent or (in the absence of agreement at any time
about his appointment) be nominated to assess the Review Rent by or
on behalf of the President for the time being of The Royal
Institution of Chartered Surveyors on the application of the
Landlord or the Tenant
(2) Unless the Landlord and the Tenant agree that the Review Surveyor
shall act as an expert (which after the appointment has been made
they may not do save with the consent also of the Review Surveyor)
he shall act as an arbitrator and the arbitration shall be conducted
in accordance with the Arbitration Acts 1950 and 1979
(3) If the Review Surveyor is appointed as an expert he shall be
required to give notice to the Landlord and the Tenant inviting each
of them to submit to him within such time limits as he shall
stipulate a proposal for the Review Rent supported (if so desired by
the Landlord or the Tenant) by any or all of:-
(i) a statement of reasons
(ii) a professional rental valuation and (separately and later)
(iii) submissions in respect of each other's statement of reasons
and valuation
but he shall not be bound thereby and shall make the determination
in accordance with his own judgment (including any determination
concerning any party's liability for the costs of the reference to
him) save in respect of points of law
(4) If the Review Surveyor whether appointed as arbitrator or expert
refuses to act or is or becomes incapable of acting or dies the
Landlord or the Tenant may apply to the President for the further
appointment of another Review Surveyor
4. If the Review Rent has not been agreed or assessed by the relevant Review
Date the Tenant shall:-
(1) continue to pay the Current Rent on account and
(2) pay the Landlord within seven days after the agreement or assessment
of the Review Rent the amount (if any) by which the Review Rent for
the period commencing on the relevant Review Date and ending on the
quarter day following the date of payment exceeds the Current Rent
paid on account for the same period plus interest at three per cent
below the Interest Rate for each installment of rent due on and
after the relevant Review Date on the difference between what would
have been paid on that rent day had the Review Rent been fixed and
the amount paid on account (the interest being payable from the date
on which the installment was due up to the date of payment of the
shortfall)
5. If any Enactment restricts the right to review rent or to recover an
increase in rent otherwise payable then when the restriction is released
the Landlord may at any time within six months after the date of release
give to the Tenant not less than one month's
41
notice requiring an additional rent review as at the next following
quarter day which shall for the purposes of this lease be a Review Date
SCHEDULE 5
(THE SERVICE CHARGE)
1. In this schedule:
"ACCOUNTING PERIOD" means the period from and including 1st January to
and including 3 1st December in any year or such other period of twelve
months as the Management Company shall reasonably determine from time to
time
"EXPERT" means a chartered surveyor experienced in the administration
and apportionment of service charges for buildings similar to the
Building as agreed upon by the Management Company and the Tenant or on
failure to agree appointed at the request of either party by the
President Provided that where an Expert has previously been agreed or
appointed in relation to any matter in connection with the Service Cost
or the allocation of the Service Cost between the tenants of the Building
(whether or not pursuant to the terms of this Underlease) the Management
Company or the Tenant shall be entitled if reasonable to require that the
same Expert be appointed
"INTERIM SUM" means a fair and reasonable yearly sum assessed by the
Management Company acting reasonably on account of the Service Charge for
each Accounting Period being a fair and reasonable estimate of the
Service Charge payable by the Tenant in respect of that Accounting Period
"RESERVE" means the total of the amounts received by the Management
Company in respect of the matters referred to in paragraph 2(B) of this
schedule
"SERVICE CHARGE" means the proportion or proportions of the Service Cost
attributable to the Premises determined in accordance with the provisions
of this schedule payable from the date hereof
"SERVICE CHARGE CERTIFICATE" means a certificate showing the Service Cost
and Service Charge for each Accounting Period served pursuant to
paragraph 5 of this schedule and prepared by the Management Company's
surveyor or auditor
"SERVICE COST" means the total sum calculated in accordance with
paragraph 2 of this schedule
2. The Service Cost shall be the total of:-
(A) the reasonable cost properly incurred by the Management Company in
any Accounting Period in carrying out or procuring the carrying out
of the Services and providing each item of the Services including
(without prejudice to the generality of the foregoing) the costs and
expenses set out in Part II of schedule 6 (insofar as the same are
reasonable and properly incurred) and any other reasonable costs and
expenses properly incurred by the Management Company or with the
Management Company's authority in connection with the Services but
excluding for the avoidance of doubt
(i) any costs attributable to the provision of any of the Services
outside Normal Business Hours at the specific request of the
Tenant (which shall
42
be charged direct to the Tenant) or of any other tenant or
tenants of the Building and
(ii) any Value Added Tax which the Management Company may incur
of and incidental to the provision of the Services and which is
recoverable as input tax by the Management Company
(iii) any cost or expense incurred in making good any damage caused
by any of the Insured Risks
(B) an amount (to be revised annually by the Management Company at its
reasonable discretion) to be charged in any Accounting Period as a
contribution to the establishment and maintenance of a reserve
towards the estimated cost to the Management Company of the
provision of the Services such amount to be ascertained on the
assumption (inter alia) that the cost of replacement of items of
plant machinery equipment and other capital items is calculated on
such life expectancy of the said items as the Management Company may
from time to time reasonably determine to the intent that a fund be
accumulated sufficient to cover the cost of replacement of the said
items by the end of their anticipated life
PROVIDED THAT nothing herein contained shall oblige the Management
Company to maintain the Reserve or a reserve sufficient to cover the
whole of the cost of replacement of any plant machinery equipment or
other capital items and provided further that any expenditure on any
items in respect of which any sums shall have been included in the
Reserve during an Accounting Year shall at the Management Company's
reasonable discretion as to the amount thereof if any be met out of the
Reserve AND PROVIDED THAT in respect of any costs or expenses not
incurred exclusively in connection with the provision or carrying out of
the Services a fair proportion only of such costs and expenses shall be
included in the Service Cost
3. (A) The Service Charge payable by the Tenant for any Accounting
Period shall be a fair proportion of the Service Cost attributable
to the Premises from time to time as properly determined by the
Management Company (and so in proportion for any Accounting Period
not falling wholly within the Term the Service Cost in any such case
being deemed to accrue on a day to day basis for the purpose of
apportionment)
(B) If at any time and from time to time during the Term the method or
basis of calculating or ascertaining the cost of any item of the
Services shall alter or the basis of calculating or ascertaining the
Service Cost in relation to any item of the Services shall change
and as a result it is reasonable that there be an alteration or
variation of the calculation of the Service Charge in order to
achieve a fairer and better apportionment of the Service Cost
amongst the tenants of the Building then and in every such case the
Management Company shall vary and amend the Service Charge and make
appropriate adjustments thereto provided always that in the event of
any dispute between the Management Company and the Tenant and the
other tenants of the Building or any of them the same shall be
referred to the Expert for determination (the Expert to act as an
expert and not as an arbitrator) whose decision shall save in the
case of manifest error be binding on the parties (including his
decisions as to the responsibility for his costs)
(C) The fair proportion to be determined by the Management Company in
paragraph 3(A) above shall be determined on the basis that all
accommodation within the
43
Building let or occupied or designed contracted or adapted for
letting or occupation (other than management accommodation) is fully
let on terms which include service charge provisions consistent with
the service charge provisions contained in this lease (save where
otherwise specified herein) and such proportion shall not be
increased or altered by reason of the fact that at any time any part
of such accommodation may be vacant or that any tenant or other
occupier of any other part of the Building may default in payment of
its due proportion of the Service Cost
4. (A) The Tenant shall pay to the Management Company the Interim Sum
without deduction by equal quarterly instalments in advance on the
usual quarter days unless the Management Company shall reasonably
anticipate that amounts to be incurred during the year immediately
next following are anticipated as being incurred in accordance with
a programme of non equal expenditure in which event the Management
Company shall serve notice to such effect upon the Tenant and shall
thereupon be entitled to require amounts of the Interim Sum to be
paid by advance quarterly instalments of unequal amounts reasonably
stipulated by the Management Company
(B) The Management Company shall be entitled to require as part of the
Interim Sum payments in advance on account of the cost of the
consumption of and supply charges in respect of electricity consumed
within the Premises (save for any amounts which are invoiced
directly by London Electricity plc to the Tenant) such sums not to
exceed a fair and proper estimate of amounts reasonably anticipated
by the Management Company as falling due within the next quarter
(C) If the Tenant consistently requests the provision of any of the
Services outside Normal Business Hours the Management Company shall
be entitled in addition to require the Tenant to pay along with
payments of the Interim Sum a fair and proper estimate of amounts
likely to be payable by the Tenant in the next quarter on account of
such Services in accordance with the terms of this lease
(D) The Interim Sum for the Accounting Period ending 31st December 1996
shall be pounds sterling 74,000
(E) Either before or as soon as practicable after the commencement of
every Accounting Period the Management Company shall serve or cause
to be served on the Tenant written notice of the Interim Sum for the
relevant Accounting Period Provided that without prejudice to the
provisions of paragraphs 6 and 7 of this schedule if the written
notice aforesaid shall be served after the first occurring quarter
day in the relevant Accounting Period the Tenant shall until service
of the written notice aforesaid make payments on account of the
Interim Sum for the relevant Accounting Period on the days and in
the manner provided by sub-paragraph (A) of this paragraph of this
schedule at an annual rate equal to the Interim Sum for the
immediately preceding Accounting Period
5. (A) As soon as practicable after the expiry of every Accounting
Period (and in any event within 4 months after such expiry) the
Management Company shall serve or cause to be served a Service
Charge Certificate on the Tenant for the relevant Accounting Period
44
(B) A Service Charge Certificate shall contain a summary of the Service
Cost in respect of the Accounting Period to which it relates and the
relevant calculations showing the Service Charge
(C) The Tenant may request further details of the breakdown of the
expenditure under any particular item or items shown in a Service
Charge Certificate by giving notice thereof in writing to the
Management Company within three months of the date of service on the
Tenant of the relevant Service Charge Certificate and upon receipt
of such a notice the Management Company shall furnish to the Tenant
all such relevant details in its possession or control or which can
reasonably be obtained by it as relate to the expenditure under the
item or items in question at the cost of the Tenant (include all
books of account receipts demands and invoices) PROVIDED ALWAYS that
notwithstanding the giving of any such notice the Tenant shall
nevertheless pay all Interim Sums and Service Charges as and when
they fall due or as may be underpaid from time to time (but without
prejudice to any challenge claim or dispute that the Tenant may have
made or may make in the future in respect of its Service Charge
liability or otherwise)
6. Within fourteen days after the service on the Tenant of a Service Charge
Certificate showing that the Service Charge for any Accounting Period
exceeds the Interim Sum for that Accounting Period the Tenant shall
(without prejudice to any challenge claim or dispute as aforesaid) pay to
the Management Company or as it shall direct a sum equal to the amount by
which the Service Charge exceeds the Interim Sum provided that and the
Tenant hereby acknowledges that if there shall be any such excess in
respect of the Accounting Period the amount of such excess shall be a
debt due from the Tenant to the Management Company and in the event that
such excess is not received in cleared funds by the Management Company
within 14 days of the due date for payment it shall attract interest at
the Interest Rate calculated for the period commencing on the due dates
for payment and ending on the date the sum is subsequently received by
the Management Company notwithstanding that the Term may have expired or
been determined before the service by or on behalf of the Management
Company of the relevant Service Charge Certificate
7. If in any Accounting Period the Service Charge is less than the Interim
Sum for that Accounting Period a sum equal to the amount which the
Interim Sum exceeds the Service Charge shall be accumulated by the
Management Company and shall be applied in or towards the Service Charge
for the next following Accounting Period or Accounting Periods or at or
after the end of the Term repaid to the Tenant within 14 days after
preparation of the Service Charge Certificate and the event that the
excess is not received by the Tenant on the due date for payment it shall
attract interest at the Interest Rate for the period commencing as the
due date for payment and ending on the date that the sum due is received
in cleared funds by the Tenant
8. Unless challenged by the Tenant pursuant to the provisions of paragraph 9
of this schedule every notice certificate calculation determination or
assessment made by or on behalf of the Management Company referred to in
this schedule shall (save where a manifest error appears) be conclusive
and binding upon the parties hereto
9. The Tenant (acting reasonably) may at any time within six months after
the submission of a Service Charge Certificate challenge it on any
reasonable ground (including without limitation on the ground that the
Service Charge therein stated exceeds the Service Charge which should
have been payable had the provisions of this lease been properly
adhered to) Provided that the Tenant gives notice with full particulars
of its ground of alleged challenge and in any such case:
(A) any sum due to or payable by the Management Company pursuant to
paragraphs 6 and 7 above shall still be paid or allowed pending
resolution of the Tenant's challenge as if the Service Charge
Certificate were correct
(B) the Management Company and the Tenant shall endeavour to resolve the
relevant issue but if they cannot do so the issue in dispute shall
be referred to the Expert (acting as an expert and not an
arbitrator) whose decision shall save in the case of manifest error
be binding on the parties (including his decision as to the
responsibility for his costs)
(C) such adjustments to the Service Charge Certificate as may be
required to be made in consequence of the resolution of the
dispute shall be paid as soon as reasonably practicable after such
resolution and any sum due to or payable by the Management Company
shall then be paid or allowed (as the case may be) immediately
together with interest at three per cent below the Interest Rate
on such sum during the period which it has been underpaid or
overpaid
10. All sums obtained from the Tenant and any other tenants or occupiers of
the Building towards the Service Cost and sums collected in respect of
the Reserve shall each be placed in separate interest bearing designated
deposit accounts to be applied only towards the cost of providing the
Services and all interest accrued on such deposit account shall be
credited (net of tax) to the account
11. The Management Company will account to the Landlord as soon as
practicable following expiry of each Accounting Period for that part of
the Service Charge which relates to costs directly incurred by the
Landlord and not by the Management Company including (but not limited to)
the costs referred to in paragraphs 5 7 8 9 and 12 of Part II of schedule
6
12. If in the Management Company's reasonable discretion any of the Services
have to be provided to a greater extent (or the cost of provision of such
Services is greater) than would normally apply in the context of the
general management of the Building in accordance with this lease as a
result either:-
(a) of a specific request by the Tenant (with or without other tenants
or occupiers of accommodation in the Building); or
(b) where such provision is required in the interests of good estate
management as a result of any acts or omissions of the Tenant in
relation to its use and occupation of the Premises
then the Management Company shall be entitled to require the Tenant to
meet the cost of such provision (or a fair proportion thereof determined
by the Management Company) within 10 working days following a demand by
the Management Company
SCHEDULE 6
(SERVICES)
PART I
1. Inspecting maintaining repairing amending altering and (where consistent
with an obligation to repair) rebuilding and renewing and where
appropriate treating washing down painting and decorating all load
bearing and other structural parts of the Building and the relevant parts
of it described in paragraphs (ii) and (iii) of schedule 1
2. Inspecting servicing maintaining operating and repairing and (where
consistent with an obligation to repair) renewing amending overhauling
and replacing the Landlord's Services Equipment and all other apparatus
plant machinery and equipment within the Building (if any) from time to
time excluding any "stand alone" systems installed by the Tenant or any
other tenant or occupier of the Building
3. Inspecting servicing maintaining operating repairing cleansing emptying
amending altering and renewing overhauling and replacing all Service
Media
4. Keeping the Common Parts and the car park within the Building properly
cleansed decorated treated maintained and lit to such standard as the
Management Company may from time to time consider adequate but the Common
Parts and the car park shall be operational 24 hours a day 7 days a week
5. Providing such mechanical ventilation heating and (if deemed reasonably
desirable by the Management Company) cooling for such parts of the
Building and for such hours and times of the year (subject to clause 6)
as the Management Company shall in its discretion reasonably determine
save that such mechanical ventilation heating and cooling for the lifts
lobby and entrance halls and toilets shall be provided throughout Normal
Business Hours and at the request of the Tenant outside those hours
subject to the Outside Normal Business Hours Charge
6. Providing and maintaining at the Management Company's discretion any
furniture architectural or ornamental features or murals and any
horticultural displays plants shrubs trees or garden area in the Common
Parts and maintaining the same
7. Supplying whether by purchase or hire and maintaining (and where
consistent with an obligation to repair) renewing replacing repairing
servicing and keeping in good and serviceable order and condition all
fixtures and receptacles appliances materials equipment plant and other
things which the Management Company may reasonably deem desirable or
necessary for the maintenance appearance upkeep or cleanliness of the
Building or any part of it or otherwise in connection with the provision
of the Services
8. Cleaning as frequently as the Management Company shall in its reasonable
discretion consider adequate the exterior and interior of all window
glazing and window frames and other fenestration units in the Common
Parts and the outside of the window glazing referred to in paragraph
(iii) of schedule 1 and the maintenance cleansing repair inspection and
(where necessary) renewal or replacement of all window cleaning) cradles
carriageways and runways
9. Providing a security service 24 hours a day to the Common Parts
(including the ground floor entrance hall at times when receptionists are
not present) and the car park within the Building including where
reasonably appropriate in the Management Company's
47
judgment closed circuit television and/or other plant and equipment for
the purpose of surveillance and supervision of users of the Building
10. Disposing of refuse from the Building (including collecting and
compacting or otherwise treating or packaging as the Management Company
reasonably thinks fit such refuse and if necessary pest control) and (and
where consistent with an obligation to repair) the provision repair
maintenance and renewal of any plant and equipment in connection
therewith
11. Maintaining 24 hours a day 7 days a week an adequate supply of hot and
cold water and supplying washing and toilet requisites in the lavatory
accommodation in the Building
12. Such rodent or other pest control in the Building as the Management
Company shall reasonably consider necessary or desirable
13. Providing one or more receptionists and/or security in the ground floor
entrance hall of the Building 24 hours a day 7 days a week
14. Providing and maintaining a signboard in the entrance lobby of the
building for the display of tenants' names
15. Controlling so far as practicable 24 hours a day 7 days a week traffic
flow within the car park in the Building and traffic 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
16. Providing and maintaining a post room facility for the reception of mail
to the Building
17. Complying with the obligations on the part of the tenant contained in the
Head Lease save for the payment of rent
18. Complying with the obligations set out in clause 6
19. Any other services relating to the Building or any part of it provided by
the Management Company from time to time which shall be:-
(1) reasonably capable of being enjoyed by the occupier of the Premises
or
(2) reasonably calculated to be for the benefit of the Tenant and other
tenants of the Building or
(3) appropriate for the maintenance upkeep or cleanliness of the
Building or
(4) otherwise in keeping with the principles of good estate management
PROVIDED ALWAYS that
(i) Where in this schedule there are references to matters or things
which are then stated to include certain particular matters or
things which are not also stated to be without prejudice to the
generality of the wording preceding it nevertheless the reference to
the particular matters or things shall be deemed to be and in each
case shall be without prejudice to the generality of the wording
preceding it
(ii) The Management Company shall subject to clause 6 when reasonable
have the right to cease or to procure the cessation of the provision
of or add to or procure
48
the addition to any item of Services matter or thing specified in
this schedule if the Management Company shall having regard to the
principles of good estate management reasonably deem it desirable or
expedient so to do but before so doing the Management Company shall
notify all the tenants in the Building but in the event of any
failure of any of the Services shall use all reasonable endeavours
to restore the said Service
(iii) The Management Company or the managing agents may temporarily
withdraw any item of Services matter or thing specified in this
schedule if in their reasonable opinion such withdrawal is in the
interest of good estate management or if such withdrawal is due to
circumstances beyond the control of the Management Company
PART II
1. All fees and disbursements of any individual or firm or company employed
or retained by or on behalf of the Management Company or its agents
(including without limitation managing agents fees) for or in connection
with:-
(1) any surveying or accounting functions for the Building and
(2) the performance of the Services or any of them and any other duties
in or about the Building or any part of it relating to the general
management administration security maintenance protection and
cleanliness of the Building
2. The reasonable fees of the Management Company for any of the Services or
for the functions and duties referred to in paragraph 1 of this Part of
this schedule which shall be undertaken by the Management Company and not
by a third party
3. The cost (in addition to any fees referred to in paragraph 2 and where
the context permits paragraph 1 of this Part of this schedule) of
employing (whether by the Management Company or any managing agents or
any other individual or firm or company) such staff as the Management
Company may in its reasonable discretion consider appropriate for the
performance of the Services and the functions and duties referred to in
paragraph 1 of this Part of this schedule and all other incidental
expenditure in relation to such employment including without prejudice to
the generality of the foregoing:-
(1) salaries wages pensions and pension contributions benefits in kind
and other emoluments and National Insurance and other statutory
contributions or levies
(2) the provision of uniforms and working clothing
(3) the provision of vehicles tools appliances cleaning and other
material fixtures fittings and other equipment for the proper
performance of their duties and a store for housing the same and
(4) a reasonable notional rent for any premises reasonably provided rent
free for every such person's use occupancy or residence
4. The cost of entering into any contracts for the carrying out of all or
any of the Services
5. All rates taxes assessments duties charges impositions and outgoings
which are now or during the Term shall be charged assessed or imposed
on:-
(1) the whole of the Common Parts or any part of them
49
(2) any residential accommodation provided for caretakers and other
staff employed in connection with the Building and any other
premises provided as referred to in paragraph 3(4) of this Part of
this schedule
excluding any tax (other than VAT) payable by the Landlord as a direct
result of any actual or implied dealing with the reversion of any Lease
or of the Landlord's receipt of income
6. The cost of the supply of water electricity gas oil and other fuel for
the provision of the Services and the cost of any electricity generating
transforming monitoring metering and distribution plant machinery and
equipment in or servicing the Building
7. The cost which the Landlord may be called upon pursuant to any Enactment
to pay as a contribution towards the expense of making repairing
maintaining rebuilding and cleansing any ways roads pavements or
structures Service Media or anything which may belong to or be used for
the Building or any part of it exclusively or in common with other
neighbouring or adjoining premises
8. The cost of taking all steps deemed desirable or expedient by the
Landlord and/or the Management Company for complying with or making
representations against or otherwise contesting the incidence of the
provisions of any Enactment relating to or alleged to relate to the
Building or any part or it for which any tenant is not directly and
exclusively liable
9. The cost to the Landlord and/or the Management Company of abating any
nuisance in respect of the Building or any part of it insofar as the same
is not the liability of any tenant
10. Any interest and fees incurred in respect of money borrowed in unforeseen
or emergency circumstances to finance the provision of the Services and
the costs referred to in this Part of this schedule or any of them
11. Any VAT (or any tax of a similar nature which may be substituted for or
levied in addition to it) incurred by the Management Company on any other
amount comprised in the Service Cost save to the extent that the
Management Company obtains credit for such VAT incurred by the Management
Company pursuant to sections 24 25 and 26 Value Added Tax Act 1994 or any
regulations made thereunder
12. A reasonable notional rent for any management accommodation provided
within the Building to facilitate the provision of the Services
13. All other reasonable actual costs properly incurred in connection with
the provision of the Services
SCHEDULE 7
(MATTERS TO WHICH THE DEMISE IS SUBJECT)
1. The entries on the registers of Title Number NGL272172 as at the date
hereof
2. Agreement dated 24th November 1995 between The Prudential Assurance
Company Limited (1) 99 Bishopsgate Limited (2) The Scottish Amicable Life
Assurance Society (3)
50
SCHEDULE 8
PROVISIONS FOR VAT INDEMNITY
PART I
1. Additional Definitions:
"TAX CREDIT" means a credit in respect of, or repayment of, input VAT,
arising by virtue of and determined in accordance with sections 24, 25
and 26 Value Added Tax Act 1994 and regulation made thereunder
"TENANT'S AUDITORS" means the auditors for the time being of the Tenant
provided that they are one of the following firms of accountants -
Deloitte Touche, Coopers and Lybrand, Ernst & Young, KPMG, Price
Waterhouse or Arthur Andersen - or such other reputable firm or
accountants as the Landlord has previously approved for the purpose of
this schedule 8 (such approval not to be unreasonably withheld or
delayed).
"VAT ELECTION" means an election under paragraph 2 of Schedule 10 Value
Added Tax Act 1994 made by the Landlord or any person of whom the
Landlord is a "Relevant Associate" within the meaning of paragraph 3(7)
of Schedule 10 or any other election or voluntary act by the Landlord or
any person connected with the Landlord (as determined under the
provisions of Section 839 of the Income and Corporation Taxes Act 1988)
which results in VAT being payable on the rent first reserved by this
lease
"VAT YEAR" means a tax year for Value Added Tax purposes determined in
accordance with Part XIV of the Value Added Tax Regulations 1995.
"VAT YEAR CERTIFICATE" means the certificate to be provided by the Tenant
following the end of the Tenant's VAT Year in the form set out in Part II
of this Schedule.
2. Pavment of VAT - no VAT Election
In the event that the rent first reserved (or any part thereof)
constitutes consideration for a taxable supply for VAT purposes which
would be a taxable supply whether or not a VAT Election has effect in
respect of the Premises, the Tenant shall pay such VAT in addition to the
rent first reserved without any adjustment of rent first reserved under
this schedule.
3. Adjustment of rent first reserved and payment of VAT - VAT Election made
If and for all periods where the rent first reserved (or any part
thereof) constitutes consideration for a taxable supply for VAT purposes
which would not be a taxable supply but for a VAT Election having effect
in respect of the Premises, the rent first reserved shall be adjusted to
such amount as when aggregated with that part of the VAT chargeable
thereon in respect of which the Tenant does not obtain a Tax Credit,
equals the rent first reserved which would have been paid had no VAT
Election been made.
4. Determination of adjustment of rent first reserved
4.1 At least 28 days prior to (a) 29th September 1998 and (b) every
subsequent anniversary thereof the Tenant shall serve a VAT Year
Certificate on the Landlord. Where the Tenant has served such VAT Year
Certificate (or is deemed to have done so pursuant to paragraph 4.2 of
this Part I below), the Tenant shall pay the amounts (including the VAT)
stipulated (or deemed to be stipulated) in paragraph 3 of such VAT Year
Certificate on
51
the due date for payment of the next installment of the rent first
reserved (and on the due date for subsequent instalments), subject
however to paragraph 4.3 of this Part I below.
4.2 If the Tenant fails to serve a VAT Year Certificate at least 28 days
prior to the due date for payment of the sum in respect of which
paragraph 3 above will apply, the Tenant shall be deemed to have served a
VAT Year Certificate specifying in paragraph 1 thereof the same estimated
proportion as stated in the previous VAT Year Certificate served, or if
no previous VAT Year Certificate has been served by the Tenant at any
time prior to the due date for any VAT Year Certificate an estimated
proportion of nil per cent. If the Tenant fails to serve a VAT Year
Certificate on more than one consecutive occasion the Tenant shall be
deemed, on the second failure and any subsequent failure, until service
of the next VAT Year Certificate, to have served a VAT Year Certificate
specifying in paragraph 1 thereof an estimated proportion of nil per
cent.
4.3 The VAT Year Certificate shall be final and binding unless the Landlord
notifies the Tenant within 30 days after the date on which a VAT Year
Certificate has been served that it disputes the VAT Year Certificate on
the grounds of manifest error. Unless such notification is given, no
further adjustments (other than those covered by the VAT Year
Certificate) shall be made in respect of any instalments of rent first
reserved in the VAT Year covered by the aforementioned VAT Year
Certificate. Whether or not the Landlord notifies the Tenant that it
disputes any amount, the Tenant shall pay on the due date for payment of
the next installment of rent first reserved immediately following the
service of the VAT Year Certificate to which the dispute relates, the
amount stipulated in paragraph 3 of the VAT Year Certificate.
4.4 If the Review Rent is not agreed or determined until after a relevant
Review Date, the amount of any increase to be paid pursuant to paragraph
2 of schedule 4 of this lease shall (if paragraph 3 above applies at that
time) be adjusted on the basis of the last VAT Year Certificate. The
adjustment amount shall be paid at the time when the amount of any
unadjusted increase would have been due to be paid and the provisions of
this schedule shall apply as if the amount of the increase were an amount
to which paragraph 3 of Part I of this schedule 8 applied.
4.5 The Landlord may notify the Tenant in writing at any time within five
days of the service of any VAT Year Certificate (or within five days of
the last date on which the Tenant should have served a VAT Year
Certificate and is therefore deemed to have served one) that it requires
the Tenant to obtain a certificate from the Tenant's Auditors at the
Tenant's cost (if adjustments are required following such process) or at
the Landlord's cost (if no such adjustments are required) in the form set
out in the VAT Year Certificate. The Tenant's Auditor's certificate shall
be provided at least eight days prior to the date of payment of the rent
first reserved to which such certificate relates, together with the
Tenant's revised VAT Year Certificate (if required in order for the
Tenant's Auditors to be able to provide a certificate). The Tenant shall
pay in accordance with paragraph 4.1 above the amount stipulated in
accordance with paragraph 3 of such VAT Year Certificate (as revised, if
required) on the date for payment of the rent first reserved
4.6 If adjustments are required pursuant to any VAT Year Certificate as a
result of the proportion of VAT for which the Tenant has obtained or will
obtain a Tax Credit differing from the proportion previously taken into
account in calculation any payment, any such difference shall be taken
into account (after having determined the amount of rent first reserved
payable in respect of the next quarter in accordance with paragraph 3
above) in calculating the next actual payment of rent first reserved
(either by increase or
decrease), the amount of which shall be set out in paragraph 3 of the VAT
Year Certificate.
4.7 Interest shall be payable at three per cent below the Interest Rate by
the Landlord and three per cent below the Interest Rate by the Tenant on
the difference between the amount actually paid pursuant to the relevant
VAT Year Certificate on the due date for payment of any sum to which
paragraph 3 of Part I of this schedule 8 applies and the amount which
should have been paid, from such due date until the date of payment of
the adjusted amount pursuant to paragraph 4.3. Where the actual amount
paid (the "Initial Payment") on the due date for payment of any sum was
subsequently adjusted on payment of any later installment of the rent
first reserved ("the Adjusted Payment") in accordance with paragraph 4.6
of Part I of this Schedule 8 and paragraph 3(b) of the VAT Year
Certificate, the interest shall be calculated on the basis of the
difference between the Initial Payment and the amount which should have
been paid pursuant to paragraph 4.1 until the date of the Adjustment
Payment, and then on the difference between the Adjustment Payment and
the amount which should have been paid until payment of that amount
pursuant to paragraphs 4.3.
4.8 Following any assignment of the whole of the Premises, the provisions of
this schedule 8 shall apply to any new Tenant as if it were the first
Tenant, and a VAT Notice served by the new Tenant shall not take into
account any adjustments made, or to be made, in respect of any previous
Tenant.
5. Miscellaneous
The Tenant shall be at liberty to carry on the ordinary course of its
trade as it wishes and shall not be precluded from proposing or accepting
a method of attribution designed or maximise its Tax Credit and covenants
not to enter any arrangement which has the specific purpose of increasing
the amount by which the rent first reserved is decreased by virtue of
this schedule 8.
53
PART II
VAT YEAR CERTIFICATE
To: The Landlord From: The Tenant
We refer to paragraph 4.3 of Part I of schedule 8 to the Lease dated [ ] made
between 99 Bishopsgate Limited (1) 99 Bishopsgate Management Limited (2)
Hammerson U.K. Properties plc (3) Donaldson Lufkin & Jenrette International
Limited (4) and Donaldson Lufkin & Jenrette Inc. (5) in respect of premises on
[ ] floor of the building known as 99 Bishopsgate London EC2 and pursuant to
that paragraph:
1. Our VAT Year which included the following quarter days [ ], ended on
[ ], ended on [ ].
(a) The part of the VAT charged on the rent first reserved paid in the
VAT Year for or in respect of which we estimate/have determined (in
accordance, where relevant, with the return made, or to be made, for
the prescribed accounting period next following the end of the VAT
Year) we will be unable to obtain credit or repayment is a
proportion of [ ] per cent of the total VAT charged.
(b) The following Table sets out the part of the VAT charged which was
expected to be irrevocable during the VAT Year where it has been
determined on the basis of paragraph 2(a) above that that differs
from the amount of VAT for or in respect of which we actually
obtained, or will be able to obtain, credit or repayment.
Dates Rent first reserved Estimate Adjustment Determination
----- ------------------- --------- ---------- -------------
* ** ***
* estimate of proportion of VAT for or in respect of which we
estimated we would be unable to obtain credit or repayment as set
out initially in VAT Notice.
** adjusted estimate of proportion of VAT for or in respect of which
we estimated we would be unable to obtain credit or repayment as
set out in subsequent VAT Notice.
*** proportion of VAT for or in respect of which we have now
estimated/determined we shall be unable to obtain credit or
repayment, in accordance with Sections 24-26 of the Value Added
Tax Act 1994 and the Value Added Tax Regulations 1995
3. We request that adjustment is made to the next installment of rent first
reserved so as to ensure that the amount of rent first reserved payable
in the VAT Year to which this VAT Year Certificate relates is as
provided in paragraph 3 of Part I of Schedule 8 to the Lease in
accordance with the information given in paragraph 2 above
and we calculate that the next installment of rent first reserved as so
adjusted shall be pounds sterling [ ] exclusive of VAT and the VAT
thereon shall be pounds sterling [ ], and that the interest payable
by the Tenant to the Landlord/Landlord to the Tenant, in accordance with
paragraph 4.7 of Part I schedule 8 to the Lease shall be pounds sterling
[ ].
4. We hereby declare that:
54
(a) we have complied with the covenant imposed upon us by paragraph 6.2
of Part I of schedule 8 to the Lease;
(b) the information contained in this VAT Notice is to the best of our
knowledge, information and belief complete and accurate;
(c) we have made all due returns to the Commissioners of Customs and
Excise and such returns are complete and accurate in all material
respects and have been made within the time limits provided by
statute.
Signed by
an authorised signatory on behalf of the Tenant
The above declaration are, to the best of our knowledge and belief after due
and careful enquiry, true, accurate and complete.
Signed by
55
Tenant's Auditors
THE COMMON SEAL of 99 BISHOPSGATE )
LIMITED was hereunto affixed in the presence of:- )
[SEAL OMITTED]
Director /s/
Director /s/
THE COMMON SEAL of 99 BISHOPSGATE )
MANAGEMENT LIMITED was hereunto )
affixed in the presence of:- )
[SEAL OMITTED]
Director /s/
Director /s/
THE COMMON SEAL of HAMMERSON U.K. )
PROPERTIES PLC was hereunto affixed in the )
presence of: )
[SEAL OMITTED]
Director /s/
Director /s/
56
DATED 24th OCTOBER 1996
- ------------------------------------------------------------------------------
99 BISHOPSGATE LIMITED
and
99 BISHOPSGATE MANAGEMENT LIMITED
and
HAMMERSON U.K. PROPERTIES PLC
and
DONALDSON, LUFKIN & JENRETTE
INTERNATIONAL LIMITED
and
DONALDSON, LUFKIN & JENRETTE, INC.
- ------------------------------------------------------------------------------
UNDERLEASE
of
Twenty-fourth Floor 99 Bishopsgate London EC2
- ------------------------------------------------------------------------------
HERBERT SMITH
Exchange House
Primrose Street
London EC2A 2HS
Tel: 0171-374 8000
Fax: 0171-496 0043
Ref: 129/P17/30608932
TABLE OF CONTENTS
CLAUSE HEADING PAGE
1. Definitions
Building
Common Parts
Development
Electricity Cost
Enactment
Head Lease/Superior Lease
Insurance Cost
Insurance Rent
Insured Risks
Interest Rate
Lettable Unit
Net Internal Area
Normal Business Hours
Permitted Part
Permitted Use
Planning Law
Plans
Premises
Public Authority
Services
Service Media
Tenant
Term
VAT
2. Interpretation
3. Demise and Rents
4. Tenant's Covenants
(1) Rent
(2) VAT
(3) Outgoings
(4) Compliance with Enactments
(5) Notices
(6) Repair
(7) Decoration and general condition and servicing
(8) Refuse
(9) To permit entry
(10) Compliance with notices relating to repair or condition
(11) Encroachments
(12) Alterations and reinstatement
(13) Use
(14) Signs
CLAUSE HEADING PAGE
(15) Alienation
(16) Registration
(17) Payment of cost of notices consents etc.
(18) Machinery
(19) Obstruction/overloading
(20) Parking/goods delivery
(21) Planning Law and compensation
(22) Indemnity
(23) Defective Premises
(24) Insurance and fire fighting equipment
(25) Dangerous and contaminative materials
(26) Yield up
(27) Regulations and covenants
(28) Security and access
(29) Head Lease
(30) Service Charge
5. Landlord's Covenants
(1) Quiet Enjoyment
(2) Insurance
(3) Head Lease
(4) Electricity Provision
(5) Management Company access
(6) VAT indemnity
6. Provision of Services
7. Provisos
(1) Forfeiture and re-entry
(2) Letting Scheme use and easements
(3) Common Parts and Service Media
(4) Service of notices
(5) Rent cesser
(6) Landlord's liability
(7) Arbitration fees
(8) Rent review memorandum
(9) No warranty as to use
(10) Disputes
(11) Compensation
(12) Rateable value appeals
(13) No warranty as to security
(14) Jurisdiction
(15) Overriding lease
(16)
8. Landlord's Guarantor
9. Tenant's option to determine
CLAUSE HEADING PAGE
10. Guarantee and Guarantor's Indemnity
11. Stamp Duty Certificate
Schedule 1 Premises
Schedule 2 Easements and rights granted
Schedule 3 Exceptions and reservations
Schedule 4 The first reserved rent and the review thereof
Schedule 5 Service Charge
Schedule 6 Services
Schedule 7 Deeds and documents to which the demise is subject
LEASE PARTICULARS
- ------------------------------------------------------------------------------
1. DATE 24th OCTOBER 1996
THIS LEASE IS AND IS INTENDED TO BE DELIVERED ON THE DATE FIRST
ABOVE WRITTEN
- ------------------------------------------------------------------------------
2. PARTIES
(a) LANDLORD : 99 Bishopsgate Limited
(b) TENANT : Donaldson, Lufkin & Jenrette international
Limited
(c) MANAGEMENT COMPANY : 99 Bishopsgate Management Limited
(d) LANDLORD'S GUARANTOR : Hammerson U.K. Properties plc
(e) TENANT'S GUARANTOR : Donaldson, Luficin & Jenrette, Inc.
- ---------------------------------------------------------------------------
3. DEMISED PREMISES : ALL THOSE premises on the 24th floor
of the Building shown for identification
only edged red on Plan 1.
- ---------------------------------------------------------------------------
4. BUILDING : 99 Bishopsgate London EC2
- ---------------------------------------------------------------------------
5. CONTRACTUAL TERM AND : Commencing on the date hereof and
TERM COMMENCEMENT expiring on 23rd October 2011
AND EXPIRY DATES
- ---------------------------------------------------------------------------
6. INITIAL RENT : pounds sterling 456,195
- ---------------------------------------------------------------------------
7. RENT COMMENCEMENT DATE: 25th March 1998
- ---------------------------------------------------------------------------
8. TENANT'S BREAK RIGHT : 24th October 2008
- ---------------------------------------------------------------------------
9. CAPITAL SUM : pounds sterling 228,O97.5O inclusive of
VAT HS.
THIS UNDERLEASE made the 24th day of October
hundred and ninety six
BETWEEN:-
[SEAL OMITTED]
(1) 99 BISHOPSGATE LIMITED whose registered office is at Lo Lam House Kumul
Highway Port Vila Vanuatu (Co. Regn. No. 10469) (registered under
Section to the Companies Act 1985 under company number FC018588
whose principal place of business is at 100 Park Lane London W1Y4AR
(the "LANDLORD")
(2) 99 BISHOPSGATE MANAGEMENT LIMITED whose registered office is at Park
Lane London WlY 4AR (Co. Regn. No. 3071752) (the "MANAGEMENT COMPANY")
(3) HAMMERSON U.K. PROPERTIES PLC whose registered office is at 100 Park
Lane London WlY 4AR (Co. Regn. No. 298351) (the "LANDLORD'S GUARANTOR")
(4) DONALDSON, LUFKIN & JENRETTE INTERNATIONAL LIMITED whose registered
office is at Moorgate Hall 155 Moorgate London EC2M 6XB (Co. Regn.
2475089) (the "TENANT") and
(5) DONALDSON, LUFKIN & JENRETTE, INC. a corporation incorporated in the
State of Delaware United States of America whose address for the purposes
of this lease is 277 Park Avenue New York New York 10172 (the "GUARANTOR")
WITNESSETH as follows:-
1. DEFINITIONS
In this lease the following expressions have the respective specified
meanings (subject to any particular interpretation required by clause
2):-
(1) "ACTS OF TERRORISM" means any act or omission of any person acting
on behalf of or in connection with any organisation (or on his own
behalf) which carries out activities directed towards overthrowing
or influencing by force or violence Her Majesty's Government in
the United Kingdom or any other government de jure or de facto
(2) "AGREEMENT FOR INITIAL ALTERATIONS" means the agreement of even
date herewith and made between the Landlord and the Tenant
governing the initial fitting out of the Premises
(3) "BUILDING" means the land (of which the Premises form part)
having a frontage to the west side of Bishopsgate and a return
frontage to the south side of Wormwood Street and all buildings
fixtures and other structures whatsoever from time to time
thereon and the appurtenances thereof which land (together with
the building now erected thereon) is known as 99 Bishopsgate
London EC2 and is for the purpose of identification shown verged
by a blue line on the Building Plan together with any adjoining
areas designated by the Landlord or the Management Company
(4) "COMMON PARTS" means all parts of the Building which are from
time to time intended for the common use and enjoyment of the
tenants and occupiers of the Building and persons claiming
through or under them (whether or not other
parties are also entitled to use and enjoy the same) and reasonably
designated as such by the Landlord and including without prejudice to the
generality of the foregoing the pedestrian ways circulation areas lobby
entrance halls lifts lift shafts fire escapes landings staircases
passages forecourts car park landscaped areas plant rooms management
suites and any other areas which are from time to time during the Term
reasonably provided by the Landlord for common use by or benefit of the
tenants and occupiers of the Building But excluding (for the avoidance of
doubt) any premises intended to be let to any party or for occupation by
the Landlord or the Management Company other than for the provision of
the Services
(5) "DEVELOPMENT" has the meaning ascribed to that expression by Planning Law
(6) "ELECTRICITY COST" means the actual cost to the Landlord of the provision
of electricity to the Premises for consumption by the Tenant in
accordance with its covenant contained at clause 5(4) being a fair and
reasonable proportion as determined by the Landlord of the total cost of
the provision of electricity to the Building as a whole (including the
provision of any security for the supply of `electricity to the Building
which may from time to time be required by the relevant undertaker
responsible for the supply of electricity chosen by the Landlord) which
proportion shall so far as practicable (save where the same are not in
working order) be calculated using readings taken in such manner and at
such times as the Landlord shall from time to time determine of the check
meters relating to the Premises from time to time installed but otherwise
shall be determined in such manner as the Landlord shall in its
discretion consider to be fair and reasonable in all the circumstances
(7) "ENACTMENT" means every Act of Parliament directive and regulation now or
hereafter to be enacted or made and all subordinate legislation
whatsoever deriving validity therefrom
(8) "HEAD LEASE" means the lease under which the Landlord holds the Premises
dated 29th September 1975 made between The Prudential Assurance Company
Limited (1) and Bishopsgate Developments Limited (2) and "Superior
Landlord" means the person for the time being entitled to the reversion
immediately expectant on the term granted by the Head Lease and every
other person having an interest in reversion to that term
(9) "GROUP COMPANY" means a company which is either the holding company of
the Tenant or a wholly owned subsidiary of the Tenant or the Tenant's
holding company (as both expressions are defined in Section 736 Companies
Act 1985)
(10) "INSURANCE COST" means in respect of any period for which the same is
required by the Landlord to be calculated the aggregate of the amount
which the Landlord may reasonably expend:-
(a) in effecting and maintaining insurance against the occurrence of the
Insured Risks in relation to the Building in such sum as represents
its then full current replacement cost with such allowance as the
Landlord from time to time considers appropriate in respect of
related liabilities and expenses (including without limitation
liability to pay any fees or charges on the submission of an
application for planning permission and costs which might be
incurred in complying with any Enactment in carrying out
2
any replacement work and sums in respect of architects' engineers'
and quantity surveyors' and other professional fees and incidental
expenses incurred in relation to any works of debris removal and of
replacement and all VAT) and
(b) in effecting and maintaining any insurance relating to the property
owners' liability and the employer's liability of the Landlord in
relation to the Building and anything done therein and
(c) in professional fees relating to insurance including fees for
insurance valuations carried out at reasonable intervals by an
independent insurance valuer (but no more than once in any year) and
all reasonable fees and expenses payable to advisers in connection
with effecting and maintaining insurance policies and claims and
(d) equivalent to the total of all reasonable excess sums (being for the
avoidance of doubt the first part of any insurance claim) which the
insurers are not liable to pay out on any insurance claim in respect
of the Building and which the Landlord or the Management Company may
have expended in replacing the damaged or destroyed parts of the
Building
(11) "INSURANCE RENT" means in respect of any period for which the same is
required by the Landlord to be calculated the aggregate of:-
(a) a fair and reasonable proportion attributable to the Premises of the
Insurance Cost for the relevant period
(b) the reasonable amount which the Landlord may expend in effecting and
maintaining insurance against up to six years' loss of the rents
first and secondly hereinafter reserved and Service Charge having
regard to potential increases of rent in accordance with schedule 4
and with any addition to the amount insured as the Landlord may
decide in respect of VAT and
(c) (without prejudice to all other provisions of this lease relating to
the use of the Premises and the vitiation of any policy of
insurance) any reasonable amount which the Landlord may expend in
paying all additional premiums and loadings on any policy or
policies of insurance required to be paid as a result of anything
done or omitted (in breach of the terms of this lease) by the Tenant
and
(d) any tax charged on any premium for any such insurance
(12) "INSURED RISKS" means loss damage or destruction whether total or partial
caused by Acts of Terrorism fire lightning explosion riot civil commotion
strikes labour and political disturbances and malicious damage aircraft
and aerial devices (other than hostile aircraft and devices) and articles
accidentally dropped from them storm tempest flood bursting or
overflowing of water tanks and pipes impact earthquake and accidental
damage to underground water oil and gas pipes or electricity wires and
cables subsidence ground slip and heave and such other usual commercial
risks or perils against the occurrence of which the Landlord may from
time to time in its reasonable discretion deem it desirable to insure
subject to such exclusions and limitations as are from time to time
commonly
3
imposed by insurers and subject also to the exclusion of such of the
risks specifically hereinbefore mentioned as the Landlord may in its
reasonable discretion decide where insurance cover in respect of the risk
in question is not for the time being available in the London insurance
market on reasonable terms
(13) "INTEREST RATE" means a yearly rate three per cent above either the base
rate of Barclays Bank plc or such other bank (being for the time being
generally recognised as a clearing bank in the London market) as the
Landlord may from time to time use for general banking purposes or if the
base rate cannot be ascertained then above such other rate as the
Landlord may reasonably specify (and so that whenever there is reference
in this lease to the payment of interest at the Interest Rate such
interest shall be calculated on a daily basis and compounded with
quarterly rests on the usual quarter days)
(14) "LANDLORD'S SERVICES EQUIPMENT" means all the plant machinery and
equipment (with associated Service Media) within or serving the Building
from time to time (whether or not within the Premises or other premises
let or intended to be let by the Landlord) comprising or used in
connection with the following systems (to the extent specified in the
following paragraphs of this definition):-
(i) the whole of the sprinkler system within the Building (including
sprinkler heads)
(ii) the whole of the fire detection and fire alarm systems
(iii) the whole of the permanent fire fighting systems (but excluding
portable fire extinguishers installed by the Tenant or other tenants
of the Building)
(iv) the whole of the chilled water system
(v) the whole of the building management system (including the building
security system) installed by the Landlord
(vi) the central electrical supply system from the mains supply into the
Building so far as (and including) the electrical riser busbars
connecting to the distribution boards at each level in the Building
which is let or intended to be let by the Landlord
(vii) the whole of the air handling system and the electricity supply and
control systems for the same
(viii) the standby generators and associated cabling wiring and duct work
but excluding in each case any "stand alone" systems installed by
the Tenant or any other tenant or occupier of the Building
(15) "LETTABLE UNIT" means any unit of accommodation forming part of the
Building which is intended by the Landlord at any material time to be for
separate occupation
(16) "NET INTERNAL AREA" has the meaning ascribed to that expression by the
Code of Measuring Practice - Fourth Edition (RICS/ISVA 1993) (or if there
shall be no such edition or no such expression for the time being the
nearest equivalent thereto)
4
GMW
99 Bishopsgate EC2 Twenty Fourth Floor Tower
[GRAPHIC OMITTED]
99 Bishopsgate London, EC2 Building Plan
[GRAPHIC OMITTED]
(17) "NORMAL BUSINESS HOURS" means 7.30 a.m. to 7.30 p.m. on Mondays to
Fridays inclusive (except bank holidays) subject to expansion of such
hours at the reasonable discretion of the Landlord provided that such
hours will automatically expand if any other tenant in the Building is
granted the benefit of any expanded hours
(18) "OUTSIDE NORMAL BUSINESS HOURS CHARGE" means the whole of the actual cost
to the Management Company of carrying out or providing any of the
Services at the request of the Tenant outside Normal Business Hours other
than any services which are stated to be provided 24 hours a day
(including without prejudice to the generality of the foregoing costs and
expenses in the nature of those set out in Part II of schedule 6) or in
the event of any of the Services being carried out or provided outside
Normal Business Hours to the Tenant and any other tenant or tenants of
the Building a fair proportion thereof (on a fair and reasonable basis
between the Tenant and any other tenant or occupier making use of such
Services) as reasonably determined by the Landlord. PROVIDED THAT during
the first year of the Term the cost of providing air conditioning outside
Normal Business Hours shall not exceed pounds sterling 88 per hour (in
respect of the Premises being the only user of air conditioning at the
relevant time) or pounds sterling 48 per hour per floor on the basis that
any five of floors 18, 20 and 22 to 26 of the Building are simultaneously
using such air conditioning over the whole of such floors
(19) "PERMITTED PART" means any part or parts of the Premises capable of
separate occupation
(20) "PERMITTED USE" means use as high class offices for any purpose within
Class B 1(a) (but not for any other purpose within that Use Class) of the
schedule to the Town and Country Planning (Use Classes) Order 1987 and
for the avoidance of doubt use of the Premises for data processing
investor services business trading operators and investment banking
complies with this provision
(21) "PLANNING LAW" means every Enactment for the time being in force relating
to the use development and occupation of land and buildings and every
planning permission statutory consent and agreement made under any
Enactment relating to the Building
(22) "PLANS" means the plans annexed hereto and "Building Plan" means that one
of them so marked
(23) "PREMISES" means the premises described in schedule 1 and all permitted
additions alterations and improvements made to them
(24) "PUBLIC AUTHORITY" means any Secretary of State and any government
department public local regulatory fire or any other authority or
institution having functions which extend to the Premises or their use
and occupation and any court of law and the companies or authorities
responsible for the supply of water gas and electricity or any of them
and any of their duly authorised officers
(25) "REINSTATEMENT SPECIFICATION" means the specification annexed hereto or
in the event that materials listed in the specification are not available
from time to time or appropriate for use (in the Landlord's reasonable
opinion) then reference to such materials will be substituted by
reference to materials of not materially less quality which perform a
similar function PROVIDED THAT save to the extent
5
that items of plant and equipment have been altered during the Term the
Tenant shall not be required to replace existing items of plant and
equipment for new items subject to the existing items being in good
working order
(26) "REVIEW DATE" means each of:-
(a) the 24th October in the years Two thousand and one and every fifth
anniversary of that date during the Term (and the last day of the
Term)
(b) any date so stipulated by virtue of paragraph 5 of schedule 4
(27) "SERVICES" means the services and other matters specified in clause 6 and
Part I of schedule 6
(28) "SERVICE MEDIA" means those parts of the Building comprising gas water
drainage electricity telephone telex signal and telecommunications
heating cooling ventilation air conditioning fire alarm and other pipes
drains sewers mains cables wires supply lines ducts conduits flues and
all other common conducting media plant appliances and apparatus for the
provision supply control and monitoring of services to or from the
Building and other common equipment
(29) "TERM" means a term of years commencing on the date hereof and expiring
on 23rd October 2011 and includes any period of holding over or extension
whether by any Enactment or common law
(30) "TERMINATION NOTICE" means not less than 12 months and 1 day's prior
written notice unless either:
(a) any Enactment or decision not capable of appeal on a point of law
confirming that the Tenant is not entitled to a new tenancy on the
expiration of such notice is in force or upheld as at 22nd October
2007 (in which case not less than 6 months prior written notice need
be given); or
(b) any other tenant enters into a lease prior to September 1998 of
premises comprising at least a floor of the building within the
security of tenure protections of the Landlord and Tenant Act 1954
for a term of not less than 10 years (without break rights) and is
granted right to determine such lease on less than such 12 months'
and 1 day's prior written notice (in which case the notice period
hereunder shall be reduced to such notice period as is granted to
such tenant in such circumstances)
(31) "VAT" means Value Added Tax as referred to in the Value Added Tax Act
1994
2. INTERPRETATION
(1) Words importing the singular include the plural and vice versa and words
importing one gender include both other genders
(2) The expressions "Landlord" "Tenant" "Management Company" and "Guarantor"
wherever the context so admits include their respective successors in
title and
6
where a party comprises more than one person covenants and obligations of
that party take effect as joint and several covenants and obligations
(3) A covenant by the Tenant not to do (or omit) any act or thing also
operates as a covenant to use reasonable endeavours not to permit or
suffer it to be done (or omitted) and to prevent (or as the case may be
to require) it being done
(4) References in this lease to:-
(a) any clause sub-clause schedule or paragraph is a reference to the
relevant clause sub-clause schedule or paragraph of this lease and
clause and schedule headings shall not affect the construction of
this lease
(b) any right of (or covenant to permit) the Landlord or the Management
Company to enter the Premises shall also be construed (subject
always to the proviso to clause 4(9)) as entitling the Landlord to
remain on the Premises with or without equipment and permitting such
right to be exercised by all persons authorised by the Landlord for
as short a period as reasonably practicable and making good all
damage caused and causing as little inconvenience as reasonably
possible save where the right of entry is exercised to remedy any
breach hereunder where the Landlord only undertakes to make good
damage caused
(c) any consent licence or approval of the Landlord or words to similar
effect mean a consent licence or other approval in writing signed by
or on behalf of the Landlord and given before the act requiring
consent licence or approval
(d) the Premises (except in clause 4(15)) shall be construed as
extending where the context permits to any part of the Premises
(e) a specific Enactment includes every statutory modification
consolidation and re-enactment and statutory extension of it for the
time being in force except in relation to the Town and Country
Planning (Use Classes) Order 1987 which shall be interpreted
exclusively by reference to the original provisions of Statutory
Instrument 1987 No 764 whether or not the same may at any time have
been revoked or modified
(f) the last year of the Term includes the final year of the Term if it
shall determine otherwise than by effluxion of time and references
to the expiry of the Term include such other determination
(5) (a) Where the context permits rents or other sums being due from the
Tenant to the Landlord or the Management Company mean that they are
exclusive of any VAT
(b) whenever the consent licence or approval of the Landlord is required
under this lease the relevant provision shall be construed as also
requiring (and any consent licence or approval given by the Landlord
shall be deemed subject to the need for) the consent licence or
approval of the Superior Landlord (for which the Landlord shall
apply at the Tenant's reasonable cost) where the same is required
under the Head Lease except that nothing in this lease or in any
consent licence or approval by the
7
Landlord shall imply that the Superior Landlord's consent licence or
approval will not be unreasonably withheld or delayed
(c) references to any right of (or covenant to permit) the Landlord to
enter the Premises shall extend to the Superior Landlord and to all
persons authorised by it and shall be construed in the manner
required by clause 2(4)(b) but in relation to the Superior Landlord
and those with its authority
(d) the rights excepted and reserved in schedule 3 are also excepted and
reserved for the benefit of the Superior Landlord
3. DEMISE AND RENTS
The Landlord at the request of the Guarantor and in consideration of the
payment by the Landlord to the Tenant of the sum of Two hundred and
twenty eight thousand and ninety nine pounds and 50 pence (228,099.50)
paid on the date hereof (receipt of which is acknowledged by the Tenant)
DEMISES unto the Tenant ALL THAT the Premises TOGETHER WITH the easements
and rights specified in schedule 2 exercisable in common with the
Landlord and all others with its authority or otherwise from time to time
entitled thereto EXCEPT and RESERVED unto the Landlord and all other
persons authorised by it from time to time during the Term or otherwise
from time to time entitled thereto (including the Management Company in
relation to the provision of the Services) the easements and rights
specified in schedule 3
TO HOLD the Premises unto the Tenant (together with and except and
reserved as aforesaid) for the Term SUBJECT to all rights easements
covenants stipulations and other matters affecting the same and SUBJECT
to the provisions of the deeds and documents mentioned in schedule 7
YIELDING AND PAYING therefor:
FIRST yearly and proportionately for any part of a year until 24th
March 1998 a peppercorn (if demanded) and thereafter until the first
Review Date (and thereafter as determined pursuant to schedule 4) the
yearly rent of Four hundred and fifty six thousand one hundred and ninety
five Pounds (pounds sterling 456,195) exclusive of VAT (subject to clause
5(6)) payable by equal quarterly payments to be made in advance on the
usual quarter days in every year the first such payment to be made on
25th March 1998
SECONDLY as additional rent from time to time the Insurance Rent payable
on demand
THIRDLY as additional rent on demand (in addition and without prejudice
to the Landlord's right of re-entry and any other right) interest at the
Interest Rate on any sum owed by the Tenant to the Landlord whether
as rent or otherwise which is not:-
(a) received in cleared funds by the Landlord within 10 days following
the due date (or in the case of money due only on demand within
fourteen days after the date of demand) calculated for the period
commencing on the due date for payment and ending on the date the
sum and the interest is received in cleared funds by the Landlord
(b) demanded (or if tendered is for the time being refused) by the
Landlord in circumstances where it is prudent for it not to demand
or accept any payment having regard to a breach of any of the
Tenant's obligations under this lease of
8
which the Tenant has received notice calculated for the period
commencing on the due date for payment and ending on the date the
sum (and the interest) is subsequently received by the Landlord
FOURTHLY as additional rent all VAT for which the Landlord is or may
become liable to account to H.M. Customs & Excise (or other relevant
body to whom account has for the time being to be made) on the supply
by the Landlord to the Tenant under or in connection with the
provisions of this lease or the interest created by it and of any
other supplies whether of goods or services such rent fourthly
reserved to be due for payment contemporaneously with the other
rents or sums to which it relates
AND FIFTHLY a rent equal to the Electricity Cost such rent to be
payable on demand (either annually or by instalments) as the Landlord
shall determine
4. TENANT'S COVENANTS
The Tenant covenants with the Landlord (and in respect of sub-clause
4(30) also with the Management Company) throughout the Term subject to
clause 4(15):
RENT
(1) To pay the rents reserved by this lease on the days and in the
manner set out in clause 3 without deduction or set off and (unless
for the time being the Landlord shall have required in writing to
the contrary) to pay the rent first reserved (together with any sum
in respect of the rent fourthly reserved as may be applicable
thereto) by banker's standing order to such bank as the Landlord may
from time to time nominate
VAT
(2) Subject to clause 5(6) wherever the Tenant is required to pay any
amount to the Landlord hereunder by way of reimbursement or
indemnity to pay on the production of a valid VAT invoice to the
Landlord (as applicable) in addition an amount equivalent to any VAT
incurred by the Landlord save to the extent that the Landlord
obtains credit for such VAT incurred by the Landlord pursuant to
sections 24 25 and 26 Value Added Tax Act 1994 or any regulations
made thereunder
OUTGOINGS
(3) To pay all rates taxes charges and other outgoings whatsoever now or
hereafter assessed charged or imposed upon the Premises or upon
their owner or occupier (and a proper proportion determined by the
Landlord attributable to the Premises of any rates taxes charges and
other outgoings now or hereafter assessed charged or imposed upon
the Premises in common with other premises or upon the owners or
occupiers thereof) and (to the extent the Tenant does not pay it
directly to the relevant supplier) the total cost (including meter
rents) of all water (including chilled water) electricity and gas
separately metered and/or exclusively supplied to the Premises
during the Term as reasonably determined by the Landlord excluding
(without prejudice to the rent fourthly reserved and clause 4(2))
any tax payable by the Landlord as a direct result of any actual or
implied dealing with the reversion of this lease or of the Landlord's
receipt of income
9
COMPLIANCE WITH ENACTMENTS
(4) To comply with the requirements of all Enactments and of every
Public Authority (including the due and proper execution of any
works) in respect of the Premises their use occupation employment
of personnel in them and any work being carried out to them (whether
the requirements are imposed upon the owner lessee or occupier) and
not to do or omit anything by which the Landlord may become liable
to make any payment or do anything under any Enactment or
requirement of a Public Authority
NOTICES
(5) As soon as reasonably practicable and in any event within 5 working
days of receipt of the same to give to the Landlord notice of (and a
certified copy of) any notice permission direction requisition order
or proposal made by any Public Authority and without delay to comply
in all respects at the Tenant's cost with the provisions thereof
save that the Tenant shall if so required by and at the cost of the
Landlord make or join in making such objections or representations
in respect of any of them as the Landlord may reasonably require
REPAIR
(6) To put and keep the Premises (and any works or installations made
pursuant to paragraphs 4 and 5 of Schedule 2) in good and
substantial repair and condition (damage by any of the Insured Risks
excepted to the extent that the insurance money shall not have been
rendered irrecoverable subject to clause 5(2)(b) or insufficient
because of some act or default of the Tenant or of any person
deriving title under or through it or their respective servants or
agents or invitees) and to replace whenever necessary during the
Term and on expiry of the Term the landlord's fixtures and fittings
(including any fitted carpets) in the Premises which may have become
beyond economic repair with items of the same type and quality
DECORATION AND GENERAL CONDITION AND SERVICING
(7) (a) To keep the Premises maintained to a high standard of
decorative order and finish and properly cleansed and tidy and
(without prejudice to the foregoing) as often as the same shall
be necessary (and not less frequently than once in every fifth
year of the Term but not more than once in any 18 month period)
and also in the last year of the Term to clean paint polish or
otherwise treat as the case may be all inside surfaces of wood
and metal work of the Premises usually or requiring to be
painted polished or otherwise treated with two coats at least
of high quality paint or polish vinyl wall coverings
(where applicable) or other appropriate materials in a good
and workmanlike manner (and during the last year of the Term
in the colour scheme specified and otherwise in accordance
with the Reinstatement Specification) PROVIDED ALWAYS THAT
the Tenant shall not be obliged to carry out any such
decorative treatment if the need for it is caused by damage
by any of the Insured Risks to the extent (subject to clause
5(2)(b)) that the insurance money shall not have been
rendered irrecoverable or insufficient because of some act
or default of the Tenant or of any person deriving title under
or through it or their respective servants agents or invitees
10
(b) To clean the inside of all external window glazing in the
Premises at least once in every month using reputable
contractors
(c) To enter into and maintain contracts for the regular inspection
maintenance and servicing of all fixed plant and equipment
comprised in the Premises which has or is likely to have any
impact on the Landlord's Services Equipment by reputable
contractors approved by the Landlord (such approval not to be
unreasonably withheld) and to obtain satisfactory test
certificates as may be reasonably required by the insurers and
whenever reasonably required to produce copies of such
contracts and certificates
REFUSE
(8) Not to deposit any refuse on any of the Common Parts except in areas
designated for such purpose from time to time by the Landlord and to
comply with all requirements of any Public Authority and any
reasonable regulations made by the Landlord pursuant to clause 4(27)
in relation to control over and disposal of rubbish
TO PERMIT ENTRY
(9) To permit the Landlord (and persons authorised by the Landlord) at
reasonable times in compliance with the Tenant's reasonable security
requirements on reasonable prior written notice (except in an
emergency) to enter the Premises in order to:-
(a) examine their state of repair
(b) ascertain that the covenants and conditions of this lease have
been observed
(c) take any measurement or valuation of the Premises
(d) rebuild renew cleanse alter test maintain repair inspect and
make connections to any part of the Building including the
Service Media (PROVIDED that the Landlord will procure that
such entry takes place outside Normal Business Hours where
practicable)
(e) during the last six months of the Term (or at any time in the
case of a disposal of the Landlord's interest) to show the
Premises to prospective purchasers or tenants and their agents
(f) exercise the rights described in schedule 3
COMPLIANCE WITH NOTICES RELATING TO REPAIR OR CONDITION
(10) (a) To comply with any notice requiring the Tenant to remedy
any breach of its covenants
(b) If the Tenant shall not within a reasonable time comply with
any such notice to permit the Landlord and any authorised
person to enter the Premises to remedy the breach as the
Tenant's agent and at the Tenant's proper cost the Landlord
making good any damage caused
11
(c) To pay to the Landlord on demand all the proper costs and
expenses incurred by the Landlord under the provisions of this
sub-clause
ENCROACHMENTS
(11) (a) To preserve all rights of light and other easements
belonging to the Premises and not knowingly to give any
acknowledgment that they are enjoyed by consent
(b) Not knowingly to do or omit anything which might subject the
Premises to the creation of any new easement and to give notice
to the Landlord forthwith of any encroachment which might have
that effect
ALTERATIONS AND REINSTATEMENT
(12) (a) Not to carry out any Development of or on the Premises nor
(without prejudice to the exclusion of structural parts from
the demise of the Premises) any works affecting any structural
parts of the Building and not to commit any waste
(b) Without prejudice to any other rights of the Landlord in respect
of areas not included in the Premises not to install or erect
any exterior lighting shade or awning or place any structure or
other thing outside the Premises
(c) Without prejudice to paragraphs (a) and (b) of this sub-clause
and subject to the provisos to this paragraph (c) not to make
any other alteration or addition to the Premises (including all
electrical and other plant and equipment and the installation
and removal of demountable partitioning) except:-
(i) in accordance with plans and specifications (adequately
describing the work in question and the manner in which the
work will be carried out) previously submitted at the
Tenant's expense in triplicate to and approved by the
Landlord (such approval not to be unreasonably withheld or
delayed PROVIDED THAT the Landlord shall respond to the
Tenant's submission within 10 working days in the case of
minor alterations (excluding any alterations which affect
any of the Landlord's Services Equipment) and if the
Landlord fails to respond within 10 working days as
aforesaid it shall be deemed to have accepted such minor
alterations AND PROVIDED FURTHER that the initial fitting
out of the Premises following the date hereof shall be
governed by the Agreement for Initial Alterations
(ii) in a manner which shall not materially and adversely
affect the Landlord's Services Equipment any Service
Media or the provision of any of the Services
(iii) in accordance with any relevant terms conditions
recommendations and regulations of any Public Authority
(and in particular in relation to any electrical
installation in accordance with the terms and conditions
laid down by the Institution of Electrical Engineers
and the Regulations of the Electricity Supply
12
Authority) and the insurance company with whom the Premises are
for the time being insured and
(iv) in a good and workmanlike manner
PROVIDED ALWAYS THAT subject to clause 4(12)(c)(i):-
(I) no such alterations or additions shall be carried out until the
Landlord has issued its consent in writing to which the Tenant
shall if required join as a party
(II) once any such alterations or additions have been carried out
the Tenant shall supply to the Landlord as-built plans in
triplicate (together with a computer aided design disk and 35
mm slides) showing the works as carried out
(d) At the expiry of the Term to remove:-
(i) all alterations and additions made to the Premises by the
Tenant
(ii) all work done in connection with the original fitting out by
the Tenant in pursuance of the Agreement for Initial
Alterations
and to restore and make good the Premises in accordance with the
Reinstatement Specification in a proper and workmanlike manner to
the condition and design which existed before the alterations or
additions were made with all services properly sealed off
USE
(13) Not to use the Premises or any chattels in them:-
(a) for any purpose (and not to do anything in or to the Premises)
which may be or become or cause a nuisance obstruction or
damage to any person or property
(b) for a sale by auction or for any public meeting or for any
dangerous noxious noisy illegal or immoral trade business or
activity or for residential purposes and not to use the Common
Parts for the transaction of any business or
(c) (without prejudice to the preceding paragraphs of this
sub-clause) except for the Permitted Use
SIGNS
(14) (a) Not to erect any aerial satellite dish sign signboard pole
antenna wire or other apparatus on the outside of the Building
save for the right granted pursuant to paragraph 3 of schedule
2
(b) Not to affix or exhibit so as to be visible from outside the
Premises any placard sign notice fascia board or advertisement
except the approved signs referred to in paragraph 3 of
schedule 2
13
ALIENATION
(15) (a) If the Tenant at any time desires to assign the whole of
the Premises the Tenant shall first by an irrevocable
unconditional written notice ("the Tenant's Notice") served
upon the Landlord offer to surrender or assign this lease upon
such financial terms and conditions as the Tenant may desire
(b) If the Landlord wishes to accept such surrender or assignment
it shall within twenty-one days of receipt of the Tenant's
Notice serve a counternotice ("the Counter-Notice") upon the
Tenant stating as much
(c) If the Landlord serves a Counter-Notice on the Tenant then the
Tenant shall surrender or assign (at the Landlord's option) the
Premises to the Landlord (or as the Landlord may direct) within
six months of receipt of the Counter-Notice either with vacant
possession or subject only to a permitted underletting and the
Tenant's liability hereunder shall cease in respect of any
matters arising following the date of such assignment or
surrender but without prejudice to any antecedent breaches of
covenant
(d) If the Landlord does not serve a Counter-Notice then the Tenant
must (if it wishes to assign) complete its assignment on terms
greater than 95 per cent in value of the terms and conditions
stipulated in the Tenant's Notice within six months from the
date of the Tenant's Notice and if the Tenant shall fail to
complete within such period if it still wishes to assign the
whole of the Premises it must reinstate the procedure set out
in this clause 4(15)
(e) Subject to the foregoing provisions of this sub-clause 4(15)
not to assign mortgage charge or underlet or in any other
manner part with possession of any part (being less than the
whole) of the Premises or agree to do so except that the Tenant
may underlet the whole of (but not more or less than) any
Permitted Part or Permitted Parts in accordance with paragraphs
(h) and (i) of this sub-clause
(f) Subject to the foregoing provisions of this sub-clause 4(15)
not to assign underlet or otherwise part with possession of or
the whole of the Premises or agree to do so except that the
Tenant may assign or underlet the whole of the Premises in
accordance with paragraph (g) or (h) respectively of this
sub-clause
(ASSIGNMENT)
(g) (i) Not to assign the whole of the Premises without first
obtaining the Landlord's consent issued within 2 months
before completion of the assignment which consent shall
not be unreasonably withheld or delayed but which may
be granted subject to any one or more of the conditions
referred to in paragraph (g)(ii) and which may be
withheld if any one or more of the circumstances referred
to in paragraph (g)(iii) exist
14
(ii) The conditions referred to in paragraph (g)(i) (which are
specified for the purposes of section 19(lA) Landlord and
Tenant Act 1927) are:
AUTHORISED GUARANTEE
(a) that the Tenant shall enter into an authorised guarantee
agreement (as defined in section 16 Landlord and Tenant
(Covenants) Act 1995) with the Landlord in a form which the
Landlord reasonably requires
THIRD PARTY GUARANTEE/RENT DEPOSIT
(b) that if so reasonably required by the Landlord the proposed
assignee shall have procured covenants with the Landlord by a
guarantor or guarantors (not being the Tenant or any guarantor)
reasonably acceptable to the Landlord in a form acceptable to
the Landlord (acting reasonably);
INTRA GROUP DEALINGS
(c) if the proposed assignee is a Group Company the Tenant shall
have procured either:
(A) if the Tenant's obligations under this lease are
guaranteed by another Group Company that such Group
Company covenants with the Landlord on the same terms
(mutatis mutandis) as those contained in clause 10; or
(B) if there is no guarantor of the Tenant's obligations under
this lease and if the assignee is not at the date of the
application for consent to the proposed assignment in the
reasonable opinion of the Landlord of financial standing
equivalent to or greater than the Tenant at the date of
this lease that the proposed assignee procures covenants
by a Group Company which is not the Tenant or the proposed
assignee and which is in the reasonable opinion of the
Landlord of financial standing equivalent to or greater
than the Tenant in the same terms (mutatis mutandis) as
those contained in clause 10; and
(iii) The circumstances referred to in paragraph (g)(i) (which are
specified for the purposes of section 19(1 A) Landlord and
Tenant Act 1927) are:-
(a) where the Tenant's solicitors have not given an undertaking to
the Landlord's solicitors to pay all reasonable legal
surveyor's and management costs disbursements and VAT arising
on the application for consent to such assignment whether or
not consent is
15
granted unless the Landlord unreasonably withholds consent in
circumstances where it is required to be reasonable; and/or
(b) where any of the rents and Interim Sum due from the Tenant to
the Landlord or the Management Company respectively under this
lease remain unpaid at the date of the application for consent
to the proposed assignment
(UNDERLETTING)
(h) Not to underlet the whole of the Premises or any Permitted Part
(each being referred to in this paragraph as the premises)
except:-
(i) to a person who before the underletting shall have
covenanted with the Landlord to observe and perform the
Tenant's obligations under this lease during the sub-term
to the extent they relate to the premises demised by the
underletting (other than the payment of rents) and a
covenant not to assign the whole of the premises without
the Landlord's consent (which shall not be unreasonably
withheld or delayed) and an unqualified covenant not to
assign part of the premises or to underlet or otherwise
part with possession or share the occupation of the
premises or any part of them
(ii) by reserving as a yearly rent without payment of a fine or
premium (in addition to the service and insurance and
other rents payable under this lease except the rent first
hereby reserved or (in the case of underletting of a
Permitted Part) a pro rata proportion of them) an amount
equal to:-
(a) (in the case of an underletting of the Premises) the
then open market rack rental value of the Premises
(b) (in the case of an underletting of a Permitted Part)
a pro rata proportion of the then open market rack
rental value of the Premises
the proportion in each case being calculated by reference
to the Net Internal Area of the Permitted Part in relation
to the Net Internal Area of the Premises, in all cases
such rent to be payable by equal quarterly instalments in
advance on the usual quarter days and to be approved by
the Landlord prior to the underletting (such approval not
to be unreasonably withheld or delayed) but the amount of
such rent and the approval of the Landlord thereto may not
be used as evidence by the Tenant for the purpose of any
rent review pursuant to this lease
(iii) by a form of underlease:-
(a) by which the principal rent reserved by the underlease
is reviewed upwards only at not greater than five year
intervals during the sub-term in accordance with the
same
16
principles (mutatis mutandis) and at the times as
apply to the rent first reserved by this lease
(b) requiring the underlessee to observe and perform all
the covenants and other provisions binding on the
Tenant under this lease (other than the covenant by
the Tenant to pay rents) to the extent they relate to
the premises and containing:-
(A) a condition for re-entry by the underlessor on breach of
any covenant by the underlessee
(B) a qualified covenant not to assign the whole of the
premises and an absolute covenant not to assign part of
the premises or to underlet or otherwise part with
possession or share the occupation of the premises or any
part of them
(iv) with the Landlord's consent issued within three months before
completion of the underletting which consent (subject to
compliance with the foregoing conditions precedent) shall not
be unreasonably withheld or delayed
(i) In relation to an underlease of a Permitted Part:-
(i) not to include in the sub-demise any part of the entrance to or
the reception area of the Premises
(ii) to except from the underlease all necessary circulation areas
and plant and equipment which will serve the Premises in common
and to reserve a separate service charge rent in respect of
their maintenance repair and renewal
(iii) not as a result of the grant to create or permit the creation
of more than three separate occupations affecting the whole of
the Premises (occupations in right of this lease counting as
one occupation)
(iv) not to grant or agree to grant the underlease without providing
for the exclusion of sections 24 to 28 inclusive of the
Landlord and Tenant Act 1954 in relation to the underlease in
pursuance of an Order duly made under section 38(4) of that Act
before the date of grant
(j) To enforce the observance and performance by every such underlessee
and its successors in title of the provisions of the underlease and
not expressly or impliedly to waive any breach of them nor vary the
terms of any underlease
(k) Not to agree any reviewed rent payable under an underlease without
the Landlord's consent and if the rent review under any underlease
is to be determined by an independent person not to agree his
appointment without the Landlord's consent (PROVIDED ALWAYS THAT the
Landlord shall not unreasonably withhold or delay any consent
required
17
under this sub-paragraph) and to procure that any representations
which the Landlord may wish to make in relation to the rent review
are duly submitted to the independent person and to provide to the
Landlord promptly on the same becoming available copies of any
representations made by or on behalf of the Tenant or the
underlessee in relation to such rent review
(SHARING OCCUPATION)
(l) Not to part with or share the occupation of the Premises or any
part of them except that the Tenant may share occupation with a
company which is (but only for so long as it remains) either the
holding company of the Tenant or a majority-owned subsidiary of
the Tenant or of the Tenant's holding company (as those
expressions are defined in section 736 Companies Act 1985) so long
as the Tenant does not grant the person sharing occupation
exclusive possession (so that such company occupies as licensee
only without creating any relationship of landlord and tenant) nor
otherwise transfer or create a legal estate and the Tenant shall
notily the Landlord of the identity of each company in occupation
REGISTRATION
(16)(a) Within twenty-one days after any disposition or devolution of
this lease or of any estate or interest in or derived out of it to
give notice in duplicate of the relevant transaction to the Landlord
for registration with a certified copy of the relevant instrument
and to pay to the Landlord a fair and reasonable fee for each such
registration of not less than twenty five pounds
(b) To register with the Landlord particulars of the determination of
every rent review under any underlease of the Premises within
fourteen days after the date of determination
PAYMENT OF COST OF NOTICES CONSENTS ETC.
(17) To pay on demand all reasonable expenses (including counsels'
solicitors' surveyors' and bailiffs' fees) properly incurred by the
Landlord in and incidental to:
(a) the preparation and service of a notice under section 146 Law of
Property Act 1925 or in contemplation of any proceedings under
section 146 or 147 of that Act notwithstanding that forfeiture is
avoided otherwise than by relief granted by the court and
(b) every reasonable step taken during or after the expiry of the
Term in connection with the enforcement of the Tenant's
obligations under this lease including the service or proposed
service of all notices and schedules of dilapidations and
(c) every application for consent licence or approval under this
lease but not if the application is unreasonably refused or
delayed or granted subject to unreasonable conditions (where
such consent is not to be unreasonably withheld or delayed)
18
MACHINERY
(18) Not to install in the Premises any plant or machinery other than usual
office equipment without the Landlord's consent which shall not be
unreasonably withheld PROVIDED ALWAYS THAT no plant or machinery shall
be installed or operated in the Premises and nothing shall be done or
omitted in them which may cause:-
(a) the efficiency of the heating ventilation air conditioning and
cooling system installed in the building to be diminished or
impaired in any way
(b) noise dust fumes smell vibration or electrical interference
affecting or having any other intrusive effect on any other part of
the Building or other adjoining property or persons outside the
Premises
OBSTRUCTION/OVERLOADING
(19) Not to obstruct:-
(a) or damage any part of the Building or exercise any of the rights
granted by this lease in a way which causes nuisance or damage
(b) any means of escape
(c) or discharge any deleterious matter into
(i) any pipe drain or other conduit serving the Premises and (to
the extent they lie within the Premises) to keep them clear and
functioning properly or
(ii) any Service Media
(d) or stop-up or darken the windows and other openings of the Premises
nor to overload or cause undue strain to the Service Media or any
other part of the Building and in particular not to suspend any
undue weight from the ceilings or walls of the Premises and not to
exceed the following floor loadings:-
floor finishings: : 4 kN/m2 (80lbs per sq.ft)
live load : 1kN/m2 (20lbs per sq.ft)
(e) any requisite notice erected on the Premises including any erected
by the Landlord in accordance with its powers under this lease
PARKING/GOODS DELIVERY
(20) To ensure that all loading unloading deliveries and despatch of goods is
carried out only by using the service accesses and goods lifts
designated by the Landlord for the use of the Premises
PLANNING LAW AND COMPENSATION
(21) Without prejudice to clause 4(4) at all times during the Term to comply
with the provisions and requirements of Planning Law relating to or
affecting
19
(a) (i) the Premises
(ii) any operations works acts or things carried out executed done
or omitted on the Premises
(iii) the use of the Premises
(iv) the use by the Tenant of (and the exercise of any other rights
hereunder in respect of) any other parts of the building
(b) Subject to the provisions of paragraph (c) of this sub-clause as
often as occasion requires during the Term at the Tenant's expense
to obtain and if appropriate renew all planning permissions (and
serve all notices) required under Planning Law in respect of the
Premises whether for the carrying out by the Tenant of any
operations or the institution or continuance by the Tenant of any
use of the Premises or any part thereof or otherwise
(c) Not without the Landlord's consent (such consent not to be
unreasonably withheld or delayed) to apply for any planning
permission relating to the Premises (and not to apply for any such
planning permission relating to any other part of the Building) but
so that subject to compliance with paragraph (e) of this sub-clause
the Landlord's consent shall not be unreasonably withheld or delayed
to the making of a planning application in respect of the Premises
relating to any operations or use or other thing (if any) which
assuming it to be implemented in accordance with Planning Law would
otherwise not be in breach of the provisions of this lease
(d) If the Landlord so requires in connection with any relevant proposal
by the Tenant to apply for a determination under section 191 or 192
Town and Country Planning Act 1990
(e) If the Landlord consents in principle to any application by the
Tenant (which it hereby agrees to consider and determine with all
due expedition) for planning permission to submit a draft of the
application to the Landlord for its approval and to give effect to
its reasonable requirements in respect thereof and if and to the
extent the Landlord so requires to lodge the application with the
relevant authority in the joint names of the Landlord and the Tenant
and in duplicate
(f) Not to implement any planning permission before the Landlord has
acknowledged that its terms are acceptable nor before the Landlord
has received any cash or other security which it reasonably requires
for compliance with any conditions imposed by the planning
permission
(g) If the Landlord at the Landlord's cost reasonably requires or the
Tenant desires to lodge and progress diligently an appeal against
any refusal of an application for planning permission lodged in
respect of the Premises by the Tenant or by any person claiming
under or through the Tenant (whether or not lodged in its name
alone) the Landlord undertakes to cooperate fully with the
Tenant in respect of any such appeal unless such
20
appeal would be likely to have a material and adverse effect on the
Landlord's interests in the Building
(h) Unless the Landlord otherwise directs to complete before the expiry
of the Term all works on the Premises required as a condition of any
planning permission implemented by the Tenant or by any person
claiming under or through it
(i) If the Tenant receives or is entitled to receive any statutory
compensation under any Enactment in relation to its interest in the
Premises the Tenant shall on any determination of its interest prior
to the expiry of this lease by effluxion of time forthwith make such
provision as is just and equitable for the Landlord to receive its
due benefit from such compensation
INDEMNITY
(22) To indemnify the Landlord against all expenses proceedings costs claims
damages demands and any other liability or consequence arising out or in
respect of any breach of any of the Tenant's obligations under this lease
(including all costs reasonably incurred by the Landlord in an attempt to
mitigate any such breach) or of any act omission or negligence of the
Tenant or any person at the Premises with the Tenant's authority
DEFECTIVE PREMISES
(23) On becoming aware of the same (or when the Tenant ought reasonably to
have become aware of the same) to give notice forthwith to the Landlord
of any defect in the Premises which might give rise to:-
(a) an obligation on the Landlord to do or refrain from doing anything
in relation to the Premises or
(b) any duty of care or the need to discharge such duty imposed by the
Defective Premises Act 1972 or otherwise
and at all times to display and maintain all notices which the Landlord
may from time to time reasonably require to be displayed at the Premises
in relation to their state of repair and condition
INSURANCE AND FIRE FIGHTING EQUIPMENT
(24) (a) Not to do or omit anything by which any insurance policy
(relevant extracts of which shall have been provided to the Tenant)
relating to the Building or any part of it becomes void or voidable
or by which the rate of premium on such policy may be increased
(b) To comply with all proper requirements of the insurers and to
provide and maintain unobstructed appropriate operational fire
fighting equipment and fire notices on the Premises
(c) To notify the Landlord forthwith of:-
21
(i) any incidence of any Insured Risk on the Premises and of any
other event which ought reasonably to be brought to the
attention of insurers and of which the Tenant ought reasonably
to be aware
(ii) the insurable value of any fixture installed in the Premises by
the Tenant or any person claiming under or through the Tenant
(d) That if at any time the Tenant or any person claiming under or
through it shall be entitled to the benefit of any insurance of the
Premises to cause all money paid under such insurance to be applied
in making good the loss or damage in respect of which it was paid
(e) Subject to clause 5(2)(b) if the whole or any part of the Building
is damaged or destroyed by any of the Insured Risks at any time
during the Term and the insurance money under any insurance policy
effected by the Landlord is rendered wholly or partially
irrecoverable because of some act or default of the Tenant or any
person deriving title under or through the Tenant or their
respective servants agents or invitees forthwith to pay the Landlord
the whole amount of the insurance money so irrecoverable
DANGEROUS AND CONTAMINATIVE MATERIALS
(25) Not to keep place store or use or permit or suffer to be kept placed
stored or used in or upon or about the Premises any materials substance
or other thing of a dangerous inflammable combustible explosive corrosive
or offensive nature or any materials substance or other thing which may
in any way cause pollution injury or harm by percolation corrosion
contamination migration release or otherwise on beneath or in the
vicinity of the Premises
YIELD UP
(26) (a) At the expiry of the Term to remove all chattels and tenant's
fixtures and quietly to yield up the Premises reinstated in
accordance with the Reinstatement Specification and restored and
made good to the extent required under clause 4(12)(d) and in the
state of repair condition decorative order and layout otherwise
required by this lease and any licences or consents issued in
pursuance of it and to make good any damage so caused in a proper
and workmanlike manner
(b) The Tenant irrevocably authorises the Landlord to remove and dispose
of any chattels which may be left in the Premises within 28 days
after the Tenant has quit them (without being obliged to obtain any
consideration for the disposal) and the Tenant irrevocably declares
that any such chattels will stand abandoned by it
REGULATIONS AND COVENANTS
(27) To comply with:-
(i) all reasonable regulations reasonably made by the Landlord
from time to time and notified to the Tenant in writing for
the good management of the Building PROVIDED ALWAYS THAT no
such regulations shall purport to amend the terms expressed in
22
this lease and if there is any inconsistency between the terms of
this lease and the regulations the terms of this lease shall prevail
(ii) all covenants stipulations and other matters affecting the Premises
and not to interfere with any rights easements or other matters
affecting the Premises
SECURITY AND ACCESS
(28) To use all reasonable endeavours to ensure that the Tenant's visitors to
the Premises observe such security regulations which may apply to them
HEAD LEASE
(29) (a) To observe and perform the covenants and conditions on the part
of the lessee contained in the Head Lease so far as they relate to
the Premises except the covenant for the payment of rent and except
also so far as the obligations relating to insurance fall to be
observed and performed by the Landlord pursuant to clause 5(2)
(b) Not to do or omit any act or thing which would or might cause the
Landlord to be in breach of the Head Lease
SERVICE CHARGE
(30) To pay the Service Charge (and VAT thereon) to the Management
Company at the times and in the manner provided for in clause 6
and schedule 5 without deduction or set off and to pay the Outside
Normal Business Hours Charge within 10 days of demand (either
annually or by monthly instalments) as the Management Company
shall reasonably determine PROVIDED THAT for the period from the
date hereof until the earlier of 25th June 1997 and the date on
which the Tenant commences full beneficial occupation of the
Premises following the works contemplated by the Agreement for
Initial Alterations the Service Charge payable by the Tenant in
any Accounting Period shall not exceed pounds sterling 32,202
inclusive of VAT and PROVIDED FURTHER that the Service Charge
payable in respect of the twelve month period from the earlier
of 25th June 1997 and the date on which the Tenant commences full
beneficial occupation of the Premises following the works
contemplated by the Agreement for Initial Alterations shall be
pounds sterling 74,601.30 exclusive of VAT
5. LANDLORD'S COVENANTS
The Landlord covenants with the Tenant:
QUIET ENJOYMENT
(1) That if the Tenant observes and performs its covenants contained in this
lease the Tenant may peaceably hold and enjoy the Premises without any
lawful interruption by the Landlord or any person rightfully claiming
through under or in trust for it
23
INSURANCE
(2) (a) To keep the Building (except all tenants' plant and equipment
and trade fixtures) insured against the Insured Risks in the full
current replacement cost
(b) to use reasonable endeavours to procure that the interest of the
Tenant is noted on the insurance policy and to use reasonable
endeavours to further procure that the insurers waive any rights of
subrogation against the Tenant (or any lawful subtenant occupier or
invitee) and the Landlord will notify the Tenant if it is unable so
to procure and will duly consider the representations of the Tenant
regarding alternative insurers who may be prepared to procure that
the insurers waive any subrogation rights and/or note the interest
of the Tenant and will also permit the Tenant to make
representations to the insurers regarding the noting of the Tenant's
interest and/or waiver of rights of subrogation
(c) On request to supply the Tenant (but not more frequently than once
in any period of twelve months) with evidence of such insurance
(d) If and whenever during the Term the Building (except as aforesaid)
is damaged or destroyed by an Insured Risk and to the extent that
payment of the insurance monies is not refused because of any act
neglect default or omission of the Tenant or of any person deriving
title under or through the Tenant or their respective servants
agents and invitees subject to clause 5(2)(b) above the Landlord
will with all convenient speed take the necessary steps to obtain
any requisite planning permissions and consents and if they are
obtained to lay out the money received from the insurance of the
Building (except sums in respect of public liability and employer's
liability and loss of rent) towards replacing (but not necessarily
in facsimile reinstatement) the damaged or destroyed parts (except
as aforesaid) and in the case of the Premises to the Reinstatement
Specification as soon as reasonably practicable (and the Landlord
shall keep the Tenant informed of progress of any such insurance
claims and the Landlord's proposals for compliance with this
provision) PROVIDED ALWAYS THAT the Tenant shall have no claim
against the Landlord under this clause 5(2)(c) in respect of the
manner of replacement of the interior of any Lettable Unit other
than the Premises or any alteration to the Common Parts and PROVIDED
FURTHER THAT the Landlord shall not be liable to carry out the
replacement if it is unable (having used all reasonable endeavours)
to obtain every planning permission and consent necessary to execute
the relevant work in which event the Landlord shall be entilted to
retain all the insurance money received by it and if the Landlord
so retains the insurance money the Tenant shall be entitled to
determine this lease on not less than one month's prior written
notice
(e) In the event that the Premises have not ben reinstated to the
Reinstatement Specification or essential means of access thereto
within the Building is not available in the circumstances
contemplated in subclause 5(2)(d) by the date five years and eleven
months following the date of such damage or destruction by an
Insured Risk the Tenant may
24
determine this lease on not less than one month's prior written
notice such notice to be served (if at all) within one month after
expiry of such five years and eleven months period
HEAD LEASE
(3) (a) To pay the rents reserved by the Head Lease and to perform so
far as the Tenant is not liable for such performance under the terms
of this lease but so far only as to preserve the existence of this
lease the covenants and conditions on the part of the lessee
contained in the Head Lease
(b) On the request and at the reasonable expense of the Tenant to take
all reasonable steps to enforce the covenants on the part of the
Superior Landlord contained in the Head Lease
(c) To take all reasonable steps at the Tenant's reasonable expense (to
the extent possible under the Head Lease) to obtain the consent of
the Superior Landlord wherever the Tenant makes application for any
consent required under this lease where the consent of both the
Landlord and the Superior Landlord is needed by virtue of this lease
and the Head Lease
ELECTRICITY PROVISION
(4) Subject to clause 7(3) to use all reasonable endeavours to provide or
procure the provision of electricity to the Premises to the extent
necessary to meet the requirements of the Tenant having regard to the
overall electricity services design standards for the Building as a whole
and to all relevant statutory provisions from time to time regulating the
supply and utilisation of electricity and the terms and conditions
relative thereto from time to time imposed by the electricity provider
chosen by the Landlord
MANAGEMENT COMPANY ACCESS
(5) To allow the Management Company such rights over the Building as it
requires from time to time for the due and proper provision of the
Services
VAT INDEMNITY
(6) The provisions of schedule 8 shall apply in relation to VAT liability on
the rent first reserved and:-
(a) Whenever VAT is properly chargeable in respect of any supply made
hereunder by the Landlord to the Tenant the Landlord shall no later
than thirty days after the due date for payment in respect of such
supply issue a valid VAT invoice or audit note (as the case may be
to the Tenant)
(b) Subject to (6)(c) below all consideration payable by the Landlord to
the Tenant shall be exclusive of VAT which the Landlord shall pay in
addition on production of a valid VAT invoice
(c) The capital sum referred to in clause 3 above shall be inclusive of
VAT save that if the Landlord is at any stage able to recover such
VAT the Landlord shall pay to the Tenant a further amount equal to
VAT on the capital sum
26
NAMING RIGHTS
(7) The Landlord shall only name the Building in accordance with its
postal address from time to time
NOTIFICATION OF NOTICES
(8) The Landlord will inform the Tenant as soon as reasonably practicable but
in any event within 5 working days of receipt of the same of any notice
served by the Superior Landlord alleging a breach of the Head Lease which
would threaten the existence of this lease
6. PROVISION OF SERVICES
The Management Company covenants with the Tenant to use all reasonable
endeavours:-
(1) Well and substantially to repair and properly clean and decorate
the structure of the Building (including the structure of the
roofs foundations external and internal walls and columns and
structural slabs of the ceilings and floors) the external
surfaces of the Building (including the whole of the glazing
within the external walls of the Building) and the Common Parts
and (where consistent with an obligation to repair) to replace
the same
(2) To keep the Service Media designed for common or general use and
the Landlord's Services Equipment in good and substantial repair
and in clean condition and at all times in good and safe working
order
(3) To keep the lifts in the Building clean and in good and
substantial repair and condition and at all times in good and
safe working order
(4) Provide heat and air conditioning and chilled water to the
Premises (subject to the Tenant paying Outside Normal Business
Hours Charge in relation to the provision of such services
outside Normal Business Hours) such heat being sufficient to
maintain an air temperature in the Premises measured at the main
trunk connections to the floor as follows:
Air Conditioning and Heating
Design Parameters:
External Conditions:
Summer 29degreesC DB 20degreesC WB
Winter -4degreesC DB 100% relative humidity
Internal Conditions Office
Accommodation-
Summer 22degreesC DB+1degreeC
Winter 20degreesC DB minimum
Humidity Office Accommodation-
26
Summer 50%+/- 10%
Winter 50%+/- 10%
(5) To ensure that the Common Parts are at all times kept clean tidy and
unobstructed
(6) Subject to clause 7(3) and clause 7(6) to provide or procure the
provision of electricity to the Premises and each and every part thereof
designed to receive the same to the extent necessary to meet the
reasonable requirements of the Tenant and other lawful occupiers of the
Premises
(7) To comply with the requirements of any statute (already or in the future
to be passed) or any government department local authority other public
or competent authority or court of competent jurisdiction relating to
the Building or any part for which any tenant or occupier of the
Building is not directly or exclusively liable
(8) To ensure that at all times (meaning for the avoidance of doubt 24
hours a day during the Term) there are both such security officers at
and patrolling the Building as is reasonably appropriate for premises of
the same size and nature as the Building and that the main reception to
the Building is properly and adequately manned
(9) To provide or procure the provision of:-
(a) the Services during Normal Business Hours; and
(b) such of the Services outside Normal Business Hours as in the
Management Company's reasonable discretion are appropriate to
provide to a high class office building in the City of London
outside Normal Business Hours; and
(c) such of the Services outside Normal Business Hours as the Tenant
shall previously request (but subject to the Tenant being
responsible for the Outside Normal Business Hours Charge)
(having regard in all cases to and in accordance with the overall design
standards for the Building as a whole and subject to the limitations
contained in Clause 7(6)) in an efficient and economic manner and in
accordance with good estate management provided that the Management
Company shall be entitled to employ such managing agents professional
advisers contractors and other persons as it shall from time to time
reasonably think fit for the purpose of the performance of the Services
PROVIDED THAT the Management Company shall not be liable for:-
(without prejudice to the provisions of clause 7(3)) any closure of any of the
Common Parts or interruption in the provision of the Services or stoppage or
severance affecting any of the Service Media or any interruption to the supply
of electricity to the Premises or the Common Parts or temporary closure or
diversion of any of the Common Parts or Service Media by reason of necessary
inspection repair maintenance or replacement thereof or any part thereof or
any plant machinery equipment installations or apparatus used in connection
therewith or damage thereto or destruction thereof by any risk
27
(whether or not an Insured Risk) or by reason of electrical mechanical
or other defect or breakdown or frost or other inclement conditions or
shortage of fuel materials supplies or labour or whole or partial
failure or stoppage of any mains supply due to any circumstances beyond
the control of the Management Company PROVIDED ALWAYS that the
Management Company shall use all reasonable endeavours to minimise the
adverse effects of any such circumstances and to remedy any such
interruption closure or diversion as soon as reasonably practicable
PROVIDED FURTHER that in the event of the Landlord or the Management
Company being unable to provide air conditioning or electricity to the
Premises in such circumstances the Tenant shall be entitled to carry out
(the Landlord and Management Company affording the Tenant reasonable
access to do so) all necessary remedial works to such electricity or air
conditioning PROVIDED THAT:
(a) the Tenant shall carry out such works in a good and workmanlike
manner and make good all damage caused causing as little
inconvenience to the Landlord Management Company and other
tenants as reasonably practicable
(b) the Landlord or the Management Company shall be responsible for
the costs of the Tenant in carrying out such remedial works when
such works are being carried out as a consequence of any breach
of the Landlord's or Management Company's covenants hereunder
7. PROVIDED ALWAYS AND IT IS HEREBY AGREED AND DECLARED THAT:-
FORFEITURE AND RE-ENTRY
(1) Without prejudice to any other remedies and powers contained in
this lease or otherwise available to the Landlord if
(a) the whole or part of the rents shall be unpaid for
twenty-one days after becoming payable (whether or not
formally demanded) or
(b) any of the Tenant's covenants in this lease are not
performed or observed in the manner and at the times herein
specified or
(c) the guarantee granted by the Guarantor or any other
guarantor of the Tenant's obligations is or becomes
unenforceable (in whole or in part) for any reason
whatsoever and no suitable alternative security is provided
to the Landlord within a period of one month or
if the Tenant (or if more than one person any one of them):-
(d) being a company enters into liquidation whether voluntarily
(except for reconstruction or amalgamation of a solvent
company) or compulsorily or has a provisional liquidator or
a receiver (including an administrative receiver) appointed
or its directors pass a resolution to petition for an
administration order or one or more of them swears an
affidavit in support of such a petition or is the subject
of an administration order or a petition for one or of a
voluntary arrangement or a proposal for one under Part I
Insolvency Act 1986
(e) being a company incorporated outside the United Kingdom is
the subject of any proceedings or event analogous to those
referred to in clause 7(1)(d) in the country of its
incorporation
28
(f) being an individual is the subject of a bankruptcy petition
or bankruptcy order or of any application or order or
appointment under section 253 or section 273 or section 286
Insolvency Act 1986 or otherwise becomes bankrupt or
insolvent or dies
the Landlord may at any time thereafter (and notwithstanding the
waiver of any previous right of re-entry) re-enter the Premises
without prejudice to the Tenant's right to relief against
forfeiture whereupon this lease shall absolutely determine but
without prejudice to either parts right of action against the
other in respect of any antecedent breach of the covenants in this
lease
LETTING SCHEME USE AND EASEMENTS
(2) No letting or building scheme exists or shall be created in
relation to the Building and (subject only to those easements
expressly granted by this lease) neither the Tenant nor the
Premises shall be entitled to any easement or quasi-easement
whatsoever and nothing herein contained or implied shall give the
Tenant the benefit of or the right to enforce or to have enforced
or to prevent the release or modification of any right easement
covenant condition or stipulation enjoyed or entered into by any
tenant of the Landlord in respect of property not demised by this
lease or prevent or restrict the development or use of the
remainder of the Building or any other land
COMMON PARTS AND SERVICE MEDIA
(3) Subject always to the rights of the local authority the relevant
supply authorities and any other competent authority the Common
Parts and the Service Media are at all times subject to the
exclusive control and management of the Landlord who may from time
to time (if it shall be necessary or reasonable to do so for the
benefit of the Building or otherwise in keeping with the
principles of good estate management) alter divert substitute stop
up or remove any of them (leaving available for use by the Tenant
reasonable and sufficient means of access to and egress from and
servicing for the Premises)
SERVICE OF NOTICES
(4) (a) In addition to any other mode of service any notices to be
served under this lease shall be validly served if
served in accordance with section 196 Law of Property Act
1925 as amended by the Recorded Delivery Service Act 1962 or
(in the case of any notice to be served on the Tenant) by
sending it to the Tenant at the Premises PROVIDED THAT
whilst the Tenant hereunder is Donaldson Lufkin & Jenrette
International Limited such notice shall also be served on
the offices for the time being of SJ Berwin & Co (attention:
Edward Page) or such other firm of solicitors notified in
writing to the Landlord and 277 Park Avenue, New York, New
York 10172
(b) If the Tenant or any guarantor comprises more than one
person it shall be sufficient for all purposes if notice is
served on one of them but a notice duly served on the
Tenant will not need to be served on any guarantor
29
RENT CESSER
(5) If and whenever during the Term:-
(a) the Premises (other than the Tenant's plant and equipment
and tenant's fixtures) or the means of access to the
Premises within the Building are damaged or destroyed by
any of the Insured Risks so that the Premises are incapable
of beneficial occupation and use and
(b) subject to clause 5(2)(b) the insurance of the Building or
the payment of any insurance money has not been vitiated by
the act neglect default or omission of the Tenant or of any
person deriving title under or through the Tenant their
respective servants agents and invitees
the rent first reserved by this lease and the Service Charge or a
fair proportion of them according to the nature and extent of the
damage sustained shall be suspended and cease to be payable from
the date of destruction or damage until whichever is the earlier
of the date on which the Premises are reinstated to the
Reinstatement Specification and if applicable the essential means
of access within the Building are available and the date of expiry
of the period for which insurance of loss of rent is effected and
any dispute about such suspension shall be referred to the award
of a single arbitrator to be appointed in default of agreement on
the application of the Landlord or the Tenant to the President for
the time being of The Royal Institution of Chartered Surveyors in
accordance with the Arbitration Acts 1950 and 1979
LANDLORD'S LIABILITY
(6) The Landlord shall not be liable for (without prejudice to the
provisions of clause 7(3)) any closure of any of the Common Parts
or stoppage or severance affecting any of the Service Media or any
interruption to the supply of electricity to the Premises or
temporary closure or diversion of any of the Common Parts or
Service Media by reason of necessary inspection repair maintenance
or replacement thereof or any part thereof or any plant machinery
equipment installations or apparatus used in connection therewith
or damage thereto or destruction thereof by any risk (whether or
not an Insured Risk) or by reason of electrical mechanical or
other defect or breakdown or frost or other inclement conditions
or shortage of fuel materials supplies or labour or whole or
partial failure or stoppage of any mains supply due to any
circumstances beyond the control of the Landlord PROVIDED ALWAYS
that the Landlord shall use all reasonable endeavours to minimise
the adverse effects of any such circumstances and to remedy any
such interruption closure or diversion as soon as reasonably
practicable PROVIDED FURTHER that in the event of the Landlord or
the Management Company being unable to provide air conditioning or
electricity to the Premises in such circumstances the Tenant shall
be entitled to carry out (the Landlord and Management Company
affording the Tenant reasonable access to do so) all necessary
remedial works to such electricity or air conditioning PROVIDED
THAT:
(a) the Tenant shall carry our such works in a good and workmanlike
manner and make good all damage caused causing as little
inconvenience to the Landlord Management Company and other tenants
as reasonable practicable)
30
(b) the Landlord or the Management Company shall be responsible for the
costs of the Tenant in carrying out such remedial works when such
works are being carried out as a consequence of any breach of the
Landlords or Management Company's covenants hereunder
ARBITRATION FEES
(7) The fees of any arbitrator incurred in any arbitration proceedings
arising out of this lease may be paid to the arbitrator by the
Landlord or by the Tenant notwithstanding any direction or prior
agreement as to liability for payment and any sums so paid for
which the party who pays them initially is not ultimately liable
shall be repayable on demand by the party who is liable for them
RENT REVIEW MEMORANDUM
(8) Forthwith after every agreement or determination of any increase in
the amount of the rent reserved and made payable by virtue of
schedule 4 a memorandum recording the increase shall be attached
to this lease and to the counterpart and such memorandum shall be
signed by or on behalf of the Landlord and the Tenant respectively
NO WARRANTY AS TO USE
(9) Nothing contained in this lease shall constitute or be deemed to
constitute a warranty by the Landlord that the Premises are
authorised under Planning Law to be used or are otherwise fit for
any specific purpose
DISPUTES
(10) (a) Any dispute between the Tenant and any other tenant or
occupier of any part of the Building relating to any
easement or right affecting the Building or any part of it
shall (unless the Landlord shall by notice to the parties
concerned renounce its power to determine it) be referred
to the Landlord whose decision acting reasonably (acting in
the capacity of an expert) shall be binding upon the
parties to the dispute but the Landlord shall give written
reasons for his decision
(b) Where any issue (other than one relating to a rent review)
arising out of or under or relating to the Head Lease which
also affects or relates to the provisions of this lease is
to be determined as provided in the Head Lease the
determination of such issue pursuant to the provisions of
the Head Lease shall be binding on the Tenant as well as
the Landlord for the purposes both of the Head Lease and
this lease
COMPENSATION
(11) Except where any Enactment prohibits the right to compensation being
reduced or excluded by agreement, neither the Tenant nor any
occupier of the Premises shall be entitled on quitting them to
claim from the Landlord any compensation under the Landlord and
Tenant Act 1954
31
RATEABLE VALUE APPEALS
(12) (a) If the Landlord or the Tenant intends to make a proposal to
alter the entry for the Premises in the local non-domestic
rating list it shall notify the other party of its intention
and shall incorporate in the proposal such proper and
reasonable representations as may be made by or on behalf
of that party
(b) The Tenant shall not agree the level of rates liability
attributable to the Premises following the date hereof
without the Landlord's consent (such consent not to be
unreasonably withheld or delayed) PROVIDED that for the
avoidance of doubt the Landlord shall not be entitled to
refuse its consent to any level of rates which the Tenant
has negotiated with the appropriate rating authority which
is lower than any level of rates negotiated by or on behalf
of the Landlord in respect of the Building on a pro rata
basis
NO WARRANTY AS TO SECURITY
(13) Nothing contained in this lease (and no exercise of any of the
Landlord's powers under this lease) shall constitute or be deemed
to constitute a warranty by the Landlord that the Premises shall
be kept secure or that any security service to the Common Parts
shall be effective
JURISDICTION
(14) This lease shall be governed by and construed in all respects in
accordance with the law of England and for the benefit of the
Landlord the English courts shall have exclusive jurisdiction in
relation to disputes arising under or connected with this lease
and the Tenant agrees that any process may be served on it by
leaving a copy of the relevant document at the Premises provided
however that the Landlord shall retain the right at its sole
election to sue the Tenant elsewhere including in the courts of
the Tenant's domicile
OVERRIDING LEASE
(15) If at any time during the Term the Landlord shall grant a tenancy
of the reversion immediately expectant on the determination of
this lease whether pursuant to Section 19 Landlord and Tenant
(Covenants) Act 1995 or otherwise any covenant on the part of the
Tenant to obtain the consent of the Landlord under this lease to
any dealing shall be deemed to include a further covenant also to
obtain the consent of the lessor under such tenancy to such
dealing
8. LANDLORD'S GUARANTOR
(1) The Landlord's Guarantor at the request of the Landlord and in
consideration of the Tenant agreeing to take this lease covenants
and agrees with the Tenant that all of the Landlord's obligations
contained in this lease will be performed and observed in the
manner and at the times herein specified and that is there is
default in performing and observing any of the Landlord's
obligations (notwithstanding any time or indulgence granted by the
Tenant to the Landlord or compromise, neglect or forbearance on
the part of the Tenant in enforcing the observance of the
Landlord's obligations in this lease) the Landlord's Guarantor
32
will observe and perform (or procure the performance and
observance of) the obligations in respect of which the Landlord
shall be in default
(2) The Landlord's Guarantor at the request of the Management Company
and in consideration of the Tenant agreeing to pay the Service
Charge covenants and agrees with the Tenant that all of the
Management Company's obligations contained in this lease will be
performed and observed in the manner and at the times herein
specified and that if there is default in performing and
observing any of the Management Company's obligations
(notwithstanding any time or indulgence granted by the Tenant to
the Management Company or compromise, neglect or forbearance on
the part of the Tenant in enforcing the observance of the
Management Company's obligations in this lease) the Landlord's
Guarantor will observe and perform (or procure the performance
and observance of) the obligations in respect of which the
Management Company shall be in default
9. TENANT'S OPTION TO DETERMINE
(1) The Tenant may (subject to compliance with the provisions of
this clause) determine this lease as 24th October 2008
(2) If the Tenant wishes so to determine the Tenant shall give to the
Landlord the Termination Notice such notice to expire on
24th October 2008
(3) If the Tenant duly serves the Termination Notice it shall procure
that vacant possession of the Premises will be available on
24th October 2008 free of occupation by and of any estate or
interest rested in the Tenant or any third party and this lease
shall not determine as a result of any notice served by the
Tenant if the Tenant is in material breach of any of its covenant
to pay the rents and Interim Sum contained in this lease
(including those contained in this sub-clause) as at 24th October
2008 except to the extent if at all the Landlord in its absolute
discretion waives compliance with any of them
10. GUARANTEE AND GUARANTOR'S INDEMNITY
The Guarantor at the request of the Tenant and in consideration of the
grant of this lease covenants and agrees with the Landlord and during
the Term and any period of holding over continuation or extension
thereof whether by an Enactment common law or otherwise (subject to
clause 4(15)):-
(1) The rents reserved by this lease (whether or not ascertained as
to amount) will be duly paid and that all the Tenant's
obligations contained in it will be performed and observed in the
manner and at the times herein specified and that if there is any
default in paying the rents or in performing and observing the
Tenant's obligations (notwithstanding any time or indulgence
granted by the Landlord to the Tenant or compromise neglect or
forbearance on the part of the Landlord in enforcing the
observance and performance of the Tenant's obligations in this
lease or any refusal by the Landlord to accept rents tendered by
or on behalf of the Tenant) the Guarantor will observe and
perform the obligations in respect of which the Tenant shall be
in default and will on demand and on a full indemnity basis pay
to the Landlord an amount equivalent to the rents or other
amounts not paid and/or any loss damage costs charges expenses or
any other liability incurred or suffered by the Landlord as a
result of the default (and in the event of non-payment shall pay
interest at the Interest Rate from the date of demand to the
33
Guarantor until the date of payment) and will otherwise indemnify
and hold harmless the Landlord against all actions claims costs
damages demands expenses losses and proceedings arising from or
incurred by the Landlord as a result of such non-performance or
non-observance
(2) If any liquidator or other person having power to do so disclaims
this lease or if it shall be forfeited or if the Tenant ceases to
exist and if the Landlord by written notice served within three
months after the date of disclaimer or forfeiture or the Landlord
having actual knowledge of the cesser of existence of the Tenant
(each a "Trigger Event") requires the Guarantor to accept a lease
of the Premises for a term computed from the date of the Trigger
Event to the date on which the Term would have expired by
effluxion of time and at the same rents and subject to the same
covenants stipulations conditions and provisions (except that the
Guarantor shall not be required to procure that any other person
is made party to that lease as guarantor) as are reserved by and
contained in this lease immediately before the Trigger Event and
with coincidental Review Dates (the said new lease and the rights
and liabilities thereunder to take effect as from the date of
such Trigger Event) the Guarantor shall forthwith accept such
lease accordingly and execute and deliver to the Landlord a
counterpart of it and indemnify the Landlord upon demand against
the costs incurred on the grant of the new lease
(3) The liability of the Guarantor hereunder shall not be released
reduced affected or prejudiced by reason of:-
(a) any variation or waiver of or addition to the terms of this
lease or any of them agreed between the Landlord and the
Tenant or
(b) the surrender by the Tenant of part of the Premises (in
which event the liability of the Guarantor shall continue
in relation to the Tenant's obligations in respect of the
part of the Premises not so surrendered) or
(c) any legal limitation immunity disability incapacity
occurrence of insolvency or the winding-up of the Tenant
or
(d) (without limitation to the foregoing) of any other act or
thing act or thing by which (but for this provision) the
Guarantor would have been discharged or released (in each
case in whole or in part) from liability under this
guarantee and indemnity
or any combination of any two or more of such matters
(4) If a Trigger Event occurs and for any reason the Landlord does not
require the Guarantor to accept a new lease of the Premises in
accordance with clause 8(2) the Guarantor shall pay to the
Landlord on demand (in addition to any other loss damage costs
charges expenses or other liability which the Guarantor may be
required to make good hereunder and without prejudice to any
other rights of the Landlord) an amount equal to the rents which
would have been payable hereunder but for such Trigger Event (so
far as such rents do not otherwise continue to be payable) for
the period commencing on the date of such Trigger Event and
ending on whichever is the earlier of the date one year after the
date of such Trigger Event and the date (if any) upon which rent
is first payable in respect of the whole of the Premises on a
reletting thereof
34
(5) Without prejudice to the rights of the Landlord against the Tenant
the Guarantor shall be a principal obligor in respect of its
obligations under this clause and not merely a surety and
accordingly the Guarantor shall not be discharged nor shall its
liability hereunder be affected by any act or thing or means
whatsoever by which its said liability would not have been
discharged if it had been a primary debtor
(6) The Guarantor shall pay all reasonable charges (including legal
and other costs on a full indemnity basis) incurred by the
Landlord in relation to the Landlord's enforcement of this
guarantee and indemnity against the Guarantor or for enforcing
payment by the Guarantor of amounts indemnified by it hereunder
(7) The Landlord may at its option enforce the terms of this guarantee
and indemnity against the Guarantor without having first enforced
the covenants and terms of this lease against the Tenant and also
without first having recourse to any other rights or security
which the Landlord may have obtained in relation to this lease
(8) The Guarantor shall not be entitled to participate in any security
held by the Landlord in respect of the obligation of the Tenant
under this lease or to any right of subrogation in respect of any
such security until all the obligations owed to the Landlord by
the Tenant and the Guarantor hereunder have been fully and
unconditionally fulfilled and discharged
(9) The Guarantor shall not claim in any liquidation bankruptcy
composition or scheme of arrangement in respect of the Tenant in
competition with the Landlord and if and to the extent that it
receives the same shall remit to (and until remission shall hold
in trust for) the Landlord all and any monies received from any
liquidator trustee receiver or out of any composition or
arrangement or from any supervisor thereof until all the
obligations of the Tenant and the Guarantor hereunder owed to the
Landlord have been fully and unconditionally fulfilled and
discharged
(10) This guarantee and indemnity shall enure for the benefit of the
Landlord's successors in title under this lease without the
necessity for any assignment thereof
(11) While Donaldson, Lufkin & Jenrette International Limited remains
the Tenant this guarantee and indemnity shall only apply if and
for so long as the total shareholders funds and reserves of
Donaldson, Lufkin & Jenrette International Limited are or fall
below the value of Fifty million pounds (pounds sterling
50,000,000) and Donaldson, Lufkin & Jenrette International Limited
and Donaldson, Lufkin & Jenrette Inc. shall notify the Landlord at
the beginning of each period in which this guarantee and indemnity
applies and again when it ceases to apply AND for the avoidance of
doubt this guarantee (subject to compliance by the Tenant with
clause 4(15)) shall automatically cease on any lawful assignment
of this lease (but without prejudice to either party's rights
against the other in respect of any antecedent breaches of this
lease) unless in the circumstances contemplated by clause
4(15)(g)(ii)(b) it is reasonable for Donaldson Lufkin & Jenrette
Inc. to remain the guarantor hereunder of the liabilities of
Donaldson, Lufkin & Jenrette International Limited PROVIDED
FURTHER that Donaldson, Lufkin & Jenrette Inc shall in such
circumstances automatically be released on a second assignment of
this lease
35
11. STAMP DUTY CERTIFICATE
It is hereby certified that there is no agreement for lease to which
this lease gives effect
IN WITNESS whereof this Deed has been executed by the parties hereto and is
intended to be and is hereby delivered on the date first above written
36
SCHEDULE 1
(THE PREMISES)
ALL THOSE office premises situate on the twenty-fourth floor and being part of
the Building which are shown on the Plans and thereon verged red for
identification purposes only ALL which premises include:-
(a) the plaster linings and other interior coverings and facing materials of
all walls and of any columns within or bounding the said premises
(b) the screed the raised floor the fixed and unfixed floor coverings and
all materials lying between the upper surface of the structural floor
slab and the raised floor surface
(c) the ceilings including all materials forming part of them lying and the
void space (if any) above such ceilings but below the lower surface of
the structural ceiling slab
(d) all non-load bearing walls lying within the said premises
(e) all plant and other apparatus and conducting media which are designed to
serve the said premises exclusively including any which the Landlord may
permit under clause 4(14) and whose operation does not have any impact
on the central building systems
(f) the following items supplied and fitted by the Landlord:-
(i) venetian horizontal perforated blinds on the inside of the
external windows of the Premises
(ii) electricity check meter
but exclude:-
(i) all Service Media and Landlord's Services Equipment and
(ii) the load bearing structure of the Building including the load bearing
structure of the roofs foundations external and internal walls and
columns and the structural slabs of the ceilings and floors and
(iii) the external surfaces of the Building and the whole of the window
glazing and window frames and other fenestration units constructed in
the external walls and in the other boundaries of the said premises
SCHEDULE 2
(EASEMENTS AND RIGHTS GRANTED)
1. The right in connection with the Permitted Use subject to the provisions
of clause 7(3) and subject to compliance with all reasonable rules and
regulations in connection with the exercise of such right as may be
prescribed from time to time by the Landlord:-
(1) for the Tenant its employees servants and duly authorised agents
invitees and visitors for the purpose only of ingress and egress
to and from the Premises to use the Common Parts and to use all
means of escape but only when needed in an emergency and
(2) to use the Service Media
37
2. The right of support shelter and protection for the Premises from any
adjoining or neighbouring parts of the Building as enjoyed by the
Premises at the date of this lease
3. The right to have displayed the name or trading style of the Tenant and
any authorised sub-tenants or permitted occupiers (subject to a maximum
of four names at any particular time) on the signboard in the entrance
lobby of the Building provided by the Landlord pursuant to paragraph 14
of Part I of schedule 6 and the right to install a sign displaying the
name of the Tenant at the entrance to the Premises the precise location
size and style of such sign to be subject to the approval of the
Landlord (such approval not to be unreasonably withheld or delayed)
4. The right to install a supplementary air conditioning system and UPS
within the 14th floor plant area in the Building in a manner and in a
location to be approved by the Landlord such approval not to be
unreasonably withheld or delayed (in accordance with the provisions of
clause 4(12)) and a right of access to such 14th floor plant area at all
reasonable times on reasonable prior notice (save in the case of
emergency) for repair and maintenance and PROVIDED that on determination
of the Term the Tenant shall remove any such installation and reinstate
the plant room area to the reasonable satisfaction of the Landlord
(making good all damage caused in such removal)
5. The right to use and to have reasonable access for repair and
maintenance (on reasonable prior written notice to the Landlord) those
works or installations within or on the Building (but outside the
Premises) for which consent has been given pursuant to the Agreement for
Initial Alterations
6. The exclusive right to use the lavatories on the same floor as the
Premises subject to the Tenant being responsible for all elements of
Service Cost relating to such toilets should any other tenant of
accommodation in the Building object to meeting any proportion of
Service Cost in relation to such facilities (on the basis of such
exclusive use)
SCHEDULE 3
(EXCEPTIONS AND RESERVATIONS)
1. The right to build alter or extend (whether vertically or laterally)
any building notwithstanding that the access of light and air or either
of them to the Premises and the lights windows and openings thereof may
be affected
2. The right at reasonable times on reasonable prior written notice (except
in an emergency where no notice need be given) to enter upon the
Premises as often as may be necessary for the purpose of complying with
the covenants of the Head Lease for all the purposes for which the
Tenant covenants in this lease to permit entry and for all purposes in
connection with the carrying out of the Services and for the purposes of
complying with any statutory requirements
3. The right to use and to construct inspect maintain repair divert and
otherwise alter stop up and relay and to make connections to any Service
Media in on or under the Premises at any time during the Term for the
benefit of any other part of the Building or any adjacent or
neighbouring land
4. The right to erect and maintain scaffolding on or against any part of
the Building so long as reasonable and sufficient means of access to and
egress from and servicing the Premises are maintained
38
5. All rights of light air and other easements and rights (but without
prejudice to those expressly granted by this lease) enjoyed by the
Premises from or over any other part or parts of the Building or any
adjacent or neighbouring land
6. The right of support protection and shelter for the benefit of other
parts of the Building from the Premises
7. The right for one or more members of any security staff employed by the
Landlord or its agents at any time or times on reasonable prior notice
(save in the case of emergency where no notice is required) to enter the
Premises if it shall be considered necessary or desirable so to do in
connection with the security of the Building
8. The right for the tenant or occupier of any other part of the Building
authorised by the Landlord having first given reasonable written notice
to the Tenant at reasonable times in the daytime and at any time and
without notice in case of emergency to enter the Premises for the
purpose of repairing that other part of the Building making good any
damage so caused to the reasonable satisfaction of the Tenant
9. The rights reserved to the Superior Landlord (by covenant or by express
reservation) in the Head Lease
PROVIDED ALWAYS THAT if the Landlord or its employees or the persons
authorised by the Landlord exercises any of the rights by carrying out work on
the Premises it shall cause as little inconvenience as possible and as soon as
reasonably practicable make good any damage caused to them unless the right
has been exercised because of some breach by the Tenant or by any person
claiming through it
SCHEDULE 4
(THE FIRST RESERVED RENT AND THE REVIEW THEREOF)
1. In this schedule the following expressions have the respective specified
meanings:-
(1) "Current Rent" means the amount of the yearly rent first reserved
by this lease payable immediately before the relevant Review Date
(2) "Review Rent" means the yearly market rent which might reasonably
be expected to be payable following the expiry of any period at
the beginning of the term which might be negotiated in the open
market for the purposes of fitting out during which no rent or a
concessionary rent is payable or following the payment of any
capital sum or fitting out contribution which might be negotiated
in the open market for the purposes of fitting out (and on the
assumption that the lessee has had the benefit of such rent free
or concessionary rent period or capital sum or fitting out
contribution and has used the same fully to fit out the Premises
for the Permitted Use to the lessee's particular requirements) if
the Premises had been let in the open market by a willing lessor
to a willing lessee with vacant possession on the relevant Review
Date without fine or premium for a term often years computed from
the relevant Review Date taking into account the lessee's right
at the expiration of the term to be granted a new tenancy under
Part II Landlord and Tenant Act 1954 and otherwise upon the
provisions (save as to the amount of the rent first reserved by
this lease but including the provisions for rent review at
five-yearly intervals) contained in this lease and on the
assumption if not a fact that the said provisions have been fully
complied with and on the further assumptions that:-
39
(a) the Permitted Use and the Premises comply with
Planning Law and every other Enactment free from any
onerous condition restriction and limitation and that
the lessee may lawfully implement and carry on the
Permitted Use
(b) no work has been carried out to the Premises which has
diminished their rental value
(c) in case the Building or any part of it has been
destroyed or damaged it has been fully restored
(d) the Premises have been fitted out to no less standard
than that set out in the Reinstatement Specification
but disregarding any effect on rent of:-
(i) the fact that the Tenant or any underlessee or other
permitted occupier or their respective predecessors in
title has been or is in occupation of the Premises
(ii) any goodwill attached to the Premises by the carrying
on in them of the business of the Tenant or any
underlessee or their respective predecessors in title
or other permitted occupier
(iii) (without prejudice to paragraphs 1(2)(b) and 1(2)(c)
of this schedule) any works carried out to the
Premises during the Term by the Tenant or any
permitted underlessee in either case at its own
expense in pursuance of a licence granted by the
Landlord where required and otherwise than in
pursuance of any obligation to the Landlord
(iv) the works carried out to the Premises by the Tenant or
carried out by the Landlord at the expense of the
Tenant pursuant to the Agreement for Initial
Alterations
(3) "Review Surveyor" means an independent chartered surveyor
appointed pursuant to paragraph 3(1) of this schedule and if to be
nominated by or on behalf of the President for the time being of
the Royal Institution of Chartered Surveyors the said President to
be requested to nominate an independent chartered surveyor having
not less than ten years practice in the City of London next before
the date of his appointment and recent substantial experience in
the letting and valuation of office premises of a similar
character and quality to those of the Premises and who is a
partner or director of a leading firm or company of surveyors
having specialist market and valuation knowledge of such premises
2. The yearly rent first reserved and payable from each Review Date until
the next following Review Date or (in the case of the period commencing
on the last Review Date during the Term) until the expiry of the Term
shall be the higher of:-
(1) the Current Rent (ignoring for this purpose any rent cesser pursuant to
clause 7(5)) and
(2) the Review Rent
40
3. If the Landlord and the Tenant shall not have agreed the Review Rent by
the date three months before the relevant Review Date it shall (without
prejudice to the ability of the Landlord and the Tenant to agree it at
any time) be assessed as follows:-
(1) the Review Surveyor shall (in the case of agreement about his
appointment) be forthwith appointed by the Landlord or the Tenant
to assess the Review Rent or (in the absence of agreement at any
time about his appointment) be nominated to assess the Review
Rent by or on behalf of the President for the time being of The
Royal Institution of Chartered Surveyors on the application of
the Landlord or the Tenant
(2) Unless the Landlord and the Tenant agree that the Review Surveyor
shall act as an expert (which after the appointment has been made
they may not do save with the consent also of the Review
Surveyor) he shall act as an arbitrator and the arbitration shall
be conducted in accordance with the Arbitration Acts 1950 and
1979
(3) If the Review Surveyor is appointed as an expert he shall be
required to give notice to the Landlord and the Tenant inviting
each of them to submit to him within such time limits as he shall
stipulate a proposal for the Review Rent supported (if so desired
by the Landlord or the Tenant) by any or all of:-
(i) a statement of reasons
(ii) a professional rental valuation and (separately and later)
(iii) submissions in respect of each other's statement of reasons
and valuation
but he shall not be bound thereby and shall make the
determination in accordance with his own judgment (including any
determination concerning any party's liability for the costs of
the reference to him) save in respect of points of law
(4) If the Review Surveyor whether appointed as arbitrator or expert
refuses to act or is or becomes incapable of acting or dies the
Landlord or the Tenant may apply to the President for the further
appointment of another Review Surveyor
4. If the Review Rent has not been agreed or assessed by the relevant
Review Date the Tenant shall:-
(1) continue to pay the Current Rent on account and
(2) pay the Landlord within seven days after the agreement or
assessment of the Review Rent the amount (if any) by which the
Review Rent for the period commencing on the relevant Review Date
and ending on the quarter day following the date of payment
exceeds the Current Rent paid on account for the same period plus
interest at three per cent below the Interest Rate for each
installment of rent due on and after the relevant Review Date on
the difference between what would have been paid on that rent day
had the Review Rent been fixed and the amount paid on account
(the interest being payable from the date on which the
installment was due up to the date of payment of the shortfall)
5. If any Enactment restricts the right to review rent or to recover an
increase in rent otherwise payable then when the restriction is released
the Landlord may at any time within six months after the date of release
give to the Tenant not less than one month's
41
notice requiring an additional rent review as at the next following
quarter day which shall for the purposes of this lease be a Review Date
SCHEDULE 5
(THE SERVICE CHARGE)
1. In this schedule:
"ACCOUNTING PERIOD" means the period from and including 1st January to
and including 31st December in any year or such other period of twelve
months as the Management Company shall reasonably determine from time to
time
"EXPERT" means a chartered surveyor experienced in the administration
and apportionment of service charges for buildings similar to the
Building as agreed upon by the Management Company and the Tenant or on
failure to agree appointed at the request of either party by the
President Provided that where an Expert has previously been agreed or
appointed in relation to any matter in connection with the Service Cost
or the allocation of the Service Cost between the tenants of the
Building (whether or not pursuant to the terms of this Underlease) the
Management Company or the Tenant shall be entitled if reasonable to
require that the same Expert be appointed
"INTERIM SUM" means a fair and reasonable yearly sum assessed by the
Management Company acting reasonably on account of the Service Charge
for each Accounting Period being a fair and reasonable estimate of the
Service Charge payable by the Tenant in respect of that Accounting
Period
"RESERVE" means the total of the amounts received by the Management
Company in respect of the matters referred to in paragraph 2(B) of this
schedule
"SERVICE CHARGE" means the proportion or proportions of the Service Cost
attributable to the Premises determined in accordance with the
provisions of this schedule payable from the date hereof
"SERVICE CHARGE CERTIFICATE" means a certificate showing the Service
Cost and Service Charge for each Accounting Period served pursuant to
paragraph 5 of this schedule and prepared by the Management Company's
surveyor or auditor
"SERVICE COST" means the total sum calculated in accordance with
paragraph 2 of this schedule
2. The Service Cost shall be the total of:-
(A) the reasonable cost properly incurred by the Management Company in
any Accounting Period in carrying out or procuring the carrying
out of the Services and providing each item of the Services
including (without prejudice to the generality of the foregoing)
the costs and expenses set out in Part II of schedule 6 (insofar
as the same are reasonable and properly incurred) and any other
reasonable costs and expenses properly incurred by the Management
Company or with the Management Company's authority in connection
with the Services but excluding for the avoidance of doubt
(i) any costs attributable to the provision of any of the
Services outside Normal Business Hours at the specific
request of the Tenant (which shall
42
be charged direct to the Tenant) or of any other tenant or
tenants of the Building and
(ii) any Value Added Tax which the Management Company may incur
of and incidental to the provision of the Services and which
is recoverable as input tax by the Management Company
(iii) any cost or expense incurred in making good any damage
caused by any of the Insured Risks
(B) an amount (to be revised annually by the Management Company at its
reasonable discretion) to be charged in any Accounting Period as a
contribution to the establishment and maintenance of a reserve
towards the estimated cost to the Management Company of the
provision of the Services such amount to be ascertained on the
assumption (inter alia) that the cost of replacement of items of
plant machinery equipment and other capital items is calculated on
such life expectancy of the said items as the Management Company
may from time to time reasonably determine to the intent that a
fund be accumulated sufficient to cover the cost of replacement of
the said items by the end of their anticipated life
PROVIDED THAT nothing herein contained shall oblige the Management
Company to maintain the Reserve or a reserve sufficient to cover the
whole of the cost of replacement of any plant machinery equipment or
other capital items and provided further that any expenditure on any
items in respect of which any sums shall have been included in the
Reserve during an Accounting Year shall at the Management Company's
reasonable discretion as to the amount thereof if any be met out of the
Reserve AND PROVIDED THAT in respect of any costs or expenses not
incurred exclusively in connection with the provision or carrying out of
the Services a fair proportion only of such costs and expenses shall be
included in the Service Cost
3. (A) The Service Charge payable by the Tenant for any Accounting Period
shall be a fair proportion of the Service Cost attributable to the
Premises from time to time as properly determined by the
Management Company (and so in proportion for any Accounting Period
not falling wholly within the Term the Service Cost in any such
case being deemed to accrue on a day to day basis for the purpose
of apportionment)
(B) If at any time and from time to time during the Term the method or
basis of calculating or ascertaining the cost of any item of the
Services shall alter or the basis of calculating or ascertaining
the Service Cost in relation to any item of the Services shall
change and as a result it is reasonable that there be an
alteration or variation of the calculation of the Service Charge
in order to achieve a fairer and better apportionment of the
Service Cost amongst the tenants of the Building then and in every
such case the Management Company shall vary and amend the Service
Charge and make appropriate adjustments thereto provided always
that in the event of any dispute between the Management Company
and the Tenant and the other tenants of the Building or any of
them the same shall be referred to the Expert for determination
(the Expert to act as an expert and not as an arbitrator) whose
decision shall save in the case of manifest error be binding on
the parties (including his decisions as to the responsibility for
his costs)
(C) The fair proportion to be determined by the Management Company in
paragraph 3(A) above shall be determined on the basis that all
accommodation within the
43
Building let or occupied or designed contracted or adapted for
letting or occupation (other than management accommodation) is
fully let on terms which include service charge provisions
consistent with the service charge provisions contained in this
lease (save where otherwise specified herein) and such proportion
shall not be increased or altered by reason of the fact that at
any time any part of such accommodation may be vacant or that any
tenant or other occupier of any other part of the Building may
default in payment of its due proportion of the Service Cost
4. (A) The Tenant shall pay to the Management Company the Interim Sum
without deduction by equal quarterly instalments in advance on the
usual quarter days unless the Management Company shall reasonably
anticipate that amounts to be incurred during the year immediately
next following are anticipated as being incurred in accordance
with a programme of non equal expenditure in which event the
Management Company shall serve notice to such effect upon the
Tenant and shall thereupon be entitled to require amounts of the
Interim Sum to be paid by advance quarterly instalments of unequal
amounts reasonably stipulated by the Management Company
(B) The Management Company shall be entitled to require as part of the
Interim Sum payments in advance on account of the cost of the
consumption of and supply charges in respect of electricity
consumed within the Premises (save for any amounts which are
invoiced directly by London Electricity plc to the Tenant) such
sums not to exceed a fair and proper estimate of amounts
reasonably anticipated by the Management Company as falling due
within the next quarter
(C) If the Tenant consistently requests the provision of any of the
Services outside Normal Business Hours the Management Company
shall be entitled in addition to require the Tenant to pay along
with payments of the Interim Sum a fair and proper estimate of
amounts likely to be payable by the Tenant in the next quarter on
account of such Services in accordance with the terms of this
lease
(D) The Interim Sum for the Accounting Period ending 31st December
1996 shall be pounds sterling 74,000
(E) Either before or as soon as practicable after the commencement of
every Accounting Period the Management Company shall serve or
cause to be served on the Tenant written notice of the Interim Sum
for the relevant Accounting Period Provided that without prejudice
to the provisions of paragraphs 6 and 7 of this schedule if the
written notice aforesaid shall be served after the first occurring
quarter day in the relevant Accounting Period the Tenant shall
until service of the written notice aforesaid make payments on
account of the Interim Sum for the relevant Accounting Period on
the days and in the manner provided by sub-paragraph (A) of this
paragraph of this schedule at an annual rate equal to the Interim
Sum for the immediately preceding Accounting Period
5. (A) As soon as practicable after the expiry of every Accounting Period
(and in any event within 4 months after such expiry) the
Management Company shall serve or cause to be served a Service
Charge Certificate on the Tenant for the relevant Accounting
Period
41
(B) A Service Charge Certificate shall contain a summary of the
Service Cost in respect of the Accounting Period to which it
relates and the relevant calculations showing the Service Charge
(C) The Tenant may request further details of the breakdown of the
expenditure under any particular item or items shown in a Service
Charge Certificate by giving notice thereof in writing to the
Management Company within three months of the date of service on
the Tenant of the relevant Service Charge Certificate and upon
receipt of such a notice the Management Company shall furnish to
the Tenant all such relevant details in its possession or control
or which can reasonably be obtained by it as relate to the
expenditure under the item or items in question at the cost of the
Tenant (include all books of account receipts demands and
invoices) PROVIDED ALWAYS that notwithstanding the giving of any
such notice the Tenant shall nevertheless pay all Interim Sums and
Service Charges as and when they fall due or as may be underpaid
from time to time (but without prejudice to any challenge claim or
dispute that the Tenant may have made or may make in the future in
respect of its Service Charge liability or otherwise)
6. Within fourteen days after the service on the Tenant of a Service Charge
Certificate showing that the Service Charge for any Accounting Period
exceeds the Interim Sum for that Accounting Period the Tenant shall
(without prejudice to any challenge claim or dispute as aforesaid) pay
to the Management Company or as it shall direct a sum equal to the
amount by which the Service Charge exceeds the Interim Sum provided that
and the Tenant hereby acknowledges that if there shall be any such
excess in respect of the Accounting Period the amount of such excess
shall be a debt due from the Tenant to the Management Company and in the
event that such excess is not received in cleared funds by the
Management Company within 14 days of the due date for payment it shall
attract interest at the Interest Rate calculated for the period
commencing on the due dates for payment and ending on the date the sum
is subsequently received by the Management Company notwithstanding that
the Term may have expired or been determined before the service by or on
behalf of the Management Company of the relevant Service Charge
Certificate
7. If in any Accounting Period the Service Charge is less than the Interim
Sum for that Accounting Period a sum equal to the amount which the
Interim Sum exceeds the Service Charge shall be accumulated by the
Management Company and shall be applied in or towards the Service Charge
for the next following Accounting Period or Accounting Periods or at or
after the end of the Term repaid to the Tenant within 14 days after
preparation of the Service Charge Certificate and the event that the
excess is not received by the Tenant on the due date for payment it
shall attract interest at the Interest Rate for the period commencing as
the due date for payment and ending on the date that the sum due is
received in cleared funds by the Tenant
8. Unless challenged by the Tenant pursuant to the provisions of paragraph
9 of this schedule every notice certificate calculation determination or
assessment made by or on behalf of the Management Company referred to in
this schedule shall (save where a manifest error appears) be conclusive
and binding upon the parties hereto
9. The Tenant (acting reasonably) may at any time within six months after
the submission of a Service Charge Certificate challenge it on any
reasonable ground (including without limitation on the ground that the
Service Charge therein stated exceeds the Service Charge which should
have been payable had the provisions of this lease been properly
45
adhered to) Provided that the Tenant gives notice with full particulars
of its ground of alleged challenge and in any such case:
(A) any sum due to or payable by the Management Company pursuant to
paragraphs 6 and 7 above shall still be paid or allowed pending
resolution of the Tenant's challenge as if the Service Charge
Certificate were correct
(B) the Management Company and the Tenant shall endeavour to resolve
the relevant issue but if they cannot do so the issue in dispute
shall be referred to the Expert (acting as an expert and not an
arbitrator) whose decision shall save in the case of manifest
error be binding on the parties (including his decision as to the
responsibility for his costs)
(C) such adjustments to the Service Charge Certificate as may be
required to be made in consequence of the resolution of the
dispute shall be paid as soon as reasonably practicable after
such resolution and any sum due to or payable by the Management
Company shall then be paid or allowed (as the case may be)
immediately together with interest at three per cent below the
Interest Rate on such sum during the period which it has been
underpaid or overpaid
10. All sums obtained from the Tenant and any other tenants or occupiers of
the Building towards the Service Cost and sums collected in respect of
the Reserve shall each be placed in separate interest bearing designated
deposit accounts to be applied only towards the cost of providing the
Services and all interest accrued on such deposit account shall be
credited (net of tax) to the account
11. The Management Company will account to the Landlord as soon as
practicable following expiry of each Accounting Period for that part of
the Service Charge which relates to costs directly incurred by the
Landlord and not by the Management Company including (but not limited
to) the costs referred to in paragraphs 5 7 8 9 and 12 of Part II of
schedule 6
12. If in the Management Company's reasonable discretion any of the Services
have to be provided to a greater extent (or the cost of provision of
such Services is greater) than would normally apply in the context of
the general management of the Building in accordance with this lease as
a result either:-
(a) of a specific request by the Tenant (with or without other tenants
or occupiers of accommodation in the Building); or
(b) where such provision is required in the interests of good estate
management as a result of any acts or omissions of the Tenant in
relation to its use and occupation of the Premises
then the Management Company shall be entitled to require the Tenant to
meet the cost of such provision (or a fair proportion thereof determined
by the Management Company) within 10 working days following a demand by
the Management Company
46
SCHEDULE 6
(SERVICES)
PART I
1. Inspecting maintaining repairing amending altering and (where consistent
with an obligation to repair) rebuilding and renewing and where
appropriate treating washing down painting and decorating all load
bearing and other structural parts of the Building and the relevant
parts of it described in paragraphs (ii) and (iii) of schedule 1
2. Inspecting servicing maintaining operating and repairing and (where
consistent with an obligation to repair) renewing amending overhauling
and replacing the Landlord's Services Equipment and all other apparatus
plant machinery and equipment within the Building (if any) from time to
time excluding any "stand alone" systems installed by the Tenant or any
other tenant or occupier of the Building
3. Inspecting servicing maintaining operating repairing cleansing emptying
amending altering and renewing overhauling and replacing all Service
Media
4. Keeping the Common Parts and the car park within the Building properly
cleansed decorated treated maintained and lit to such standard as the
Management Company may from time to time consider adequate but the
Common Parts and the car park shall be operational 24 hours a day 7 days
a week
5. Providing such mechanical ventilation heating and (if deemed reasonably
desirable by the Management Company) cooling for such parts of the
Building and for such hours and times of the year (subject to clause 6)
as the Management Company shall in its discretion reasonably determine
save that such mechanical ventilation heating and cooling for the lifts
lobby and entrance halls and toilets shall be provided throughout Normal
Business Hours and at the request of the Tenant outside those hours
subject to the Outside Normal Business Hours Charge
6. Providing and maintaining at the Management Company's discretion any
furniture architectural or ornamental features or murals and any
horticultural displays plants shrubs trees or garden area in the Common
Parts and maintaining the same
7. Supplying whether by purchase or hire and maintaining (and where
consistent with an obligation to repair) renewing replacing repairing
servicing and keeping in good and serviceable order and condition all
fixtures and receptacles appliances materials equipment plant and other
things which the Management Company may reasonably deem desirable or
necessary for the maintenance appearance upkeep or cleanliness of the
Building or any part of it or otherwise in connection with the provision
of the Services
8. Cleaning as frequently as the Management Company shall in its reasonable
discretion consider adequate the exterior and interior of all window
glazing and window frames and other fenestration units in the Common
Parts and the outside of the window glazing referred to in paragraph
(iii) of schedule 1 and the maintenance cleansing repair inspection and
(where necessary) renewal or replacement of all window cleaning) cradles
carriageways and runways
9. Providing a security service 24 hours a day to the Common Parts
(including the ground floor entrance hall at times when receptionists
are not present) and the car park within the Building including where
reasonably appropriate in the Management Company's
47
judgment closed circuit television and/or other plant and equipment for
the purpose of surveillance and supervision of users of the Building
10. Disposing of refuse from the Building (including collecting and
compacting or otherwise treating or packaging as the Management Company
reasonably thinks fit such refuse and if necessary pest control) and
(and where consistent with an obligation to repair) the provision repair
maintenance and renewal of any plant and equipment in connection
therewith
11. Maintaining 24 hours a day 7 days a week an adequate supply of hot and
cold water and supplying washing and toilet requisites in the lavatory
accommodation in the Building
12. Such rodent or other pest control in the Building as the Management
Company shall reasonably consider necessary or desirable
13. Providing one or more receptionists and/or security in the ground floor
entrance hall of the Building 24 hours a day 7 days a week
14. Providing and maintaining a signboard in the entrance lobby of the
building for the display of tenants' names
15 Controlling so far as practicable 24 hours a day 7 days a week traffic
flow within the car park in the Building and traffic 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
16. Providing and maintaining a post room facility for the reception of mail
to the Building
17. Complying with the obligations on the part of the tenant contained in
the Head Lease save for the payment of rent
18. Complying with the obligations set out in clause 6
19. Any other services relating to the Building or any part of it provided
by the Management Company from time to time which shall be:-
(1) reasonably capable of being enjoyed by the occupier of the
Premises or
(2) reasonably calculated to be for the benefit of the Tenant and
other tenants of the Building or
(3) appropriate for the maintenance upkeep or cleanliness of the
Building or
(4) otherwise in keeping with the principles of good estate management
PROVIDED ALWAYS that
(i) Where in this schedule there are references to matter or things
which are then stated to include certain particular matters or
things which are not also stated to be without prejudice to the
generality of the wording preceding it nevertheless the reference
to the particular matters or things shall be deemed to be and in
each case shall be without prejudice to the generality of the
wording preceding it
(ii) The Management Company shall subject to clause 6 when reasonable
have the right to cease or to procure the cessation of the
provision of or add to or procure
48
the addition to any item of Services matter or thing specified in
this schedule if the Management Company shall having regard to
the principles of good estate management reasonably deem it
desirable or expedient so to do but before so doing the
Management Company shall notify all the tenants in the Building
but in the event of any failure of any of the Services shall use
all reasonable endeavours to restore the said Service
(iv) The Management Company or the managing agents may temporarily
withdraw any item of Services matter or thing specified in this
schedule if in their reasonable opinion such withdrawal is in the
interest of good estate management or if such withdrawal is due
to circumstances beyond the control of the Management Company
PART II
1. All fees and disbursements of any individual or firm or company employed
or retained by or on behalf of the Management Company or its agents
(including without limitation managing agents fees) for or in connection
with:-
(1) any surveying or accounting functions for the Building and
(2) the performance of the Services or any of them and any other
duties in or about the Building or any part of it relating to the
general management administration security maintenance protection
and cleanliness of the Building
2. The reasonable fees of the Management Company for any of the Services or
for the functions and duties referred to in paragraph 1 of this Part of
this schedule which shall be undertaken by the Management Company and
not by a third party
3. The cost (in addition to any fees referred to in paragraph 2 and where
the context permits paragraph 1 of this Part of this schedule) of
employing (whether by the Management Company or any managing agents or
any other individual or firm or company) such staff as the Management
Company may in its reasonable discretion consider appropriate for the
performance of the Services and the functions and duties referred to in
paragraph 1 of this Part of this schedule and all other incidental
expenditure in relation to such employment including without prejudice
to the generality of the foregoing:-
(1) salaries wages pensions and pension contributions benefits in
kind and other emoluments and National Insurance and other
statutory contributions or levies
(2) the provision of uniforms and working clothing
(3) the provision of vehicles tools appliances cleaning and other
material fixtures fittings and other equipment for the proper
performance of their duties and a store for housing the same and
(4) a reasonable notional rent for any premises reasonably provided
rent free for every such person's use occupancy or residence
4. The cost of entering into any contracts for the carrying out of all or
any of the Services
5. All rates taxes assessments duties charges impositions and outgoings
which are now or during the Term shall be charged assessed or imposed
on:-
(1) the whole of the Common Parts or any part of them
49
(2) any residential accommodation provided for caretakers and other
staff employed in connection with the Building and any other
premises provided as referred to in paragraph 3(4) of this Part
of this schedule
excluding any tax (other than VAT) payable by the Landlord as a direct
result of any actual or implied dealing with the reversion of any Lease
or of the Landlord's receipt of income
6. The cost of the supply of water electricity gas oil and other fuel for
the provision of the Services and the cost of any electricity generating
transforming monitoring metering and distribution plant machinery and
equipment in or servicing the Building
7. The cost which the Landlord may be called upon pursuant to any Enactment
to pay as a contribution towards the expense of making repairing
maintaining rebuilding and cleansing any ways roads pavements or
structures Service Media or anything which may belong to or be used for
the Building or any part of it exclusively or in common with other
neighbouring or adjoining premises
8. The cost of taking all steps deemed desirable or expedient by the
Landlord and/or the Management Company for complying with or making
representations against or otherwise contesting the incidence of the
provisions of any Enactment relating to or alleged to relate to the
Building or any part or it for which any tenant is not directly and
exclusively liable
9. The cost to the Landlord and/or the Management Company of abating any
nuisance in respect of the Building or any part of it insofar as the
same is not the liability of any tenant
10. Any interest and fees incurred in respect of money borrowed in
unforeseen or emergency circumstances to finance the provision of the
Services and the costs referred to in this Part of this schedule or any
of them
11. Any VAT (or any tax of a similar nature which may be substituted for or
levied in addition to it) incurred by the Management Company on any
other amount comprised in the Service Cost save to the extent that the
Management Company obtains credit for such VAT incurred by the
Management Company pursuant to sections 24 25 and 26 Value Added Tax Act
1994 or any regulations made thereunder
12. A reasonable notional rent for any management accommodation provided
within the Building to facilitate the provision of the Services
13. All other reasonable actual costs properly incurred in connection with
the provision of the Services
SCHEDULE 7
(MATTERS TO WHICH THE DEMISE IS SUBJECT)
1. The entries on the registers of Title Number NGL272172 as at the date
hereof
2. Agreement dated 24th November 1995 between The Prudential Assurance
Company Limited (1) 99 Bishopsgate Limited (2) The Scottish Amicable
Life Assurance Society (3)
50
SCHEDULE 8
PROVISIONS FOR VAT INDEMNITY
PART I
1. Additional Definitions:
"TAX CREDIT" means a credit in respect of, or repayment of, input VAT,
arising by virtue of and determined in accordance with sections 24, 25
and 26 Value Added Tax Act 1994 and regulation made thereunder
"TENANT'S AUDITORS" means the auditors for the time being of the Tenant
provided that they are one of the following firms of accountants -
Deloitte Touche, Coopers and Lybrand, Ernst & Young, KPMG, Price
Waterhouse or Arthur Andersen - or such other reputable firm or
accountants as the Landlord has previously approved for the purpose of
this schedule 8 (such approval not to be unreasonably withheld or
delayed).
"VAT ELECTION" means an election under paragraph 2 of Schedule 10 Value
Added Tax Act 1994 made by the Landlord or any person of whom the
Landlord is a "Relevant Associate" within the meaning of paragraph 3(7)
of Schedule 10 or any other election or voluntary act by the Landlord or
any person connected with the Landlord (as determined under the
provisions of Section 839 of the Income and Corporation Taxes Act 1988)
which results in VAT being payable on the rent first reserved by this
lease
"VAT YEAR" means a tax year for Value Added Tax purposes determined in
accordance with Part XIV of the Value Added Tax Regulations 1995.
"VAT YEAR CERTIFICATE" means the certificate to be provided by the
Tenant following the end of the Tenant's VAT Year in the form set out in
Part II of this Schedule.
2. Payment of VAT - no VAT Election
In the event that the rent first reserved (or any part thereof)
constitutes consideration for a taxable supply for VAT purposes which
would be a taxable supply whether or not a VAT Election has effect in
respect of the Premises, the Tenant shall pay such VAT in addition to
the rent first reserved without any adjustment of rent first reserved
under this schedule.
3. Adjustment of rent first reserved and payment of VAT - VAT Election made
If and for all periods where the rent first reserved (or any part
thereof) constitutes consideration for a taxable supply for VAT purposes
which would not be a taxable supply but for a VAT Election having effect
in respect of the Premises, the rent first reserved shall be adjusted to
such amount as when aggregated with that part of the VAT chargeable
thereon in respect of which the Tenant does not obtain a Tax Credit,
equals the rent first reserved which would have been paid had no VAT
Election been made.
4. Determination of adjustment of rent first reserved
4.1 At least 28 days prior to (a) 29th September 1998 and (b) every
subsequent anniversary thereof the Tenant shall serve a VAT Year
Certificate on the Landlord. Where the Tenant has served such VAT Year
Certificate (or is deemed to have done so pursuant to paragraph 4.2 of
this Part I below), the Tenant shall pay the amounts (including the VAT)
stipulated (or deemed to be stipulated) in paragraph 3 of such VAT Year
Certificate on
51
the due date for payment of the next installment of the rent first
reserved (and on the due date for subsequent instalments), subject
however to paragraph 4.3 of this Part I below.
4.2 If the Tenant fails to serve a VAT Year Certificate at least 28 days
prior to the due date for payment of the sum in respect of which
paragraph 3 above will apply, the Tenant shall be deemed to have served
a VAT Year Certificate specifying in paragraph 1 thereof the same
estimated proportion as stated in the previous VAT Year Certificate
served, or if no previous VAT Year Certificate has been served by the
Tenant at any time prior to the due date for any VAT Year Certificate an
estimated proportion of nil per cent. If the Tenant fails to serve a VAT
Year Certificate on more than one consecutive occasion the Tenant shall
be deemed, on the second failure and any subsequent failure, until
service of the next VAT Year Certificate, to have served a VAT Year
Certificate specifying in paragraph 1 thereof an estimated proportion of
nil per cent.
4.3 The VAT Year Certificate shall be final and binding unless the Landlord
notifies the Tenant within 30 days after the date on which a VAT Year
Certificate has been served that it disputes the VAT Year Certificate on
the grounds of manifest error. Unless such notification is given, no
further adjustments (other than those covered by the VAT Year
Certificate) shall be made in respect of any instalments of rent first
reserved in the VAT Year covered by the aforementioned VAT Year
Certificate. Whether or not the Landlord notifies the Tenant that it
disputes any amount, the Tenant shall pay on the due date for payment of
the next installment of rent first reserved immediately following the
service of the VAT Year Certificate to which the dispute relates, the
amount stipulated in paragraph 3 of the VAT Year Certificate.
4.4 If the Review Rent is not agreed or determined until after a relevant
Review Date, the amount of any increase to be paid pursuant to paragraph
2 of schedule 4 of this lease shall (if paragraph 3 above applies at
that time) be adjusted on the basis of the last VAT Year Certificate.
The adjustment amount shall be paid at the time when the amount of any
unadjusted increase would have been due to be paid and the provisions of
this schedule shall apply as if the amount of the increase were an
amount to which paragraph 3 of Part I of this schedule 8 applied.
4.5 The Landlord may notify the Tenant in writing at any time within five
days of the service of any VAT Year Certificate (or within five days of
the last date on which the Tenant should have served a VAT Year
Certificate and is therefore deemed to have served one) that it requires
the Tenant to obtain a certificate from the Tenant's Auditors at the
Tenant's cost (if adjustments are required following such process) or at
the Landlord's cost (if no such adjustments are required) in the form
set out in the VAT Year Certificate. The Tenant's Auditor's certificate
shall be provided at least eight days prior to the date of payment of
the rent first reserved to which such certificate relates, together with
the Tenant's revised VAT Year Certificate (if required in order for the
Tenant's Auditors to be able to provide a certificate). The Tenant shall
pay in accordance with paragraph 4.1 above the amount stipulated in
accordance with paragraph 3 of such VAT Year Certificate (as revised, if
required) on the date for payment of the rent first reserved.
4.6 If adjustments are required pursuant to any VAT Year Certificate as a
result of the proportion of VAT for which the Tenant has obtained or
will obtain a Tax Credit differing from the proportion previously taken
into account in calculation any payment, any such difference shall be
taken into account (after having determined the amount of rent first
reserved payable in respect of the next quarter in accordance with
paragraph 3 above) in calculating the next actual payment of rent first
reserved (either by increase or
52
decrease), the amount of which shall be set out in paragraph 3 of the
VAT Year Certificate.
4.7 Interest shall be payable at three per cent below the Interest Rate by
the Landlord and three per cent below the Interest Rate by the Tenant on
the difference between the amount actually paid pursuant to the relevant
VAT Year Certificate on the due date for payment of any sum to which
paragraph 3 of Part I of this schedule 8 applies and the amount which
should have been paid, from such due date until the date of payment of
the adjusted amount pursuant to paragraph 4.3. Where the actual amount
paid (the "Initial Payment") on the due date for payment of any sum was
subsequently adjusted on payment of any later installment of the rent
first reserved ("the Adjusted Payment") in accordance with paragraph 4.6
of Part I of this Schedule 8 and paragraph 3(b) of the VAT Year
Certificate, the interest shall be calculated on the basis of the
difference between the Initial Payment and the amount which should have
been paid pursuant to paragraph 4.1 until the date of the Adjustment
Payment, and then on the difference between the Adjustment Payment and
the amount which should have been paid until payment of that amount
pursuant to paragraphs 4.3.
4.8 Following any assignment of the whole of the Premises, the provisions of
this schedule 8 shall apply to any new Tenant as if it were the first
Tenant, and a VAT Notice served by the new Tenant shall not take into
account any adjustments made, or to be made, in respect of any previous
Tenant.
5. Miscellaneous
The Tenant shall be at liberty to carry on the ordinary course of its
trade as it wishes and shall not be precluded from proposing or
accepting a method of attribution designed or maximise its Tax Credit
and covenants not to enter any arrangement which has the specific
purpose of increasing the amount by which the rent first reserved is
decreased by virtue of this schedule 8.
PART II
VAT YEAR CERTIFICATE
To: The Landlord From: The Tenant
We refer to paragraph 4.3 of Part I of schedule 8 to the Lease dated [ ]
made between 99 Bishopsgate Limited (1) 99 Bishopsgate Management Limited (2)
Hammerson U.K. Properties plc (3) Donaldson Lufkin & Jenrette International
Limited (4) and Donaldson Lufkin & Jenrette Inc. (5) in respect of premises on
[ ] floor of the building known as 99 Bishopsgate London EC2 and pursuant to
that paragraph:
1. Our VAT Year which included the following quarter days [ ], ended
on [ ], ended on [ ].
(a) The part of the VAT charged on the rent first reserved paid in
the VAT Year for or in respect of which we estimate/have
determined (in accordance, where relevant, with the return made,
or to be made, for the prescribed accounting period next
following the end of the VAT Year) we will be unable to obtain
credit or repayment is a proportion of [ ] per cent of the total
VAT charged.
(b) The following Table sets out the part of the VAT charged which
was expected to be irrevocable during the VAT Year where it has
been determined on the basis of paragraph 2(a) above that that
differs from the amount of VAT for or in respect of which we
actually obtained, or will be able to obtain, credit or
repayment.
Dates Rent first reserved Estimate Adjustment Determination
----- ------------------- -------- ---------- -------------
* ** ***
* estimate of proportion of VAT for or in respect of which we
estimated we would be unable to obtain credit or repayment as set
out initially in VAT Notice.
** adjusted estimate of proportion of VAT for or in respect of which
we estimated we would be unable to obtain credit or repayment as
set out in subsequent VAT Notice.
*** proportion of VAT for or in respect of which we have now
estimated/determined we shall be unable to obtain credit or
repayment, in accordance with Sections 24- 26 of the Value Added
Tax Act 1994 and the Value Added Tax Regulations 1995
3. We request that adjustment is made to the next installment of rent first
reserved as to ensure that the amount of rent first reserved payable in
the VAT Year to which this VAT Year Certificate relates is as provided
in paragraph 3 of Part I of Schedule 8 to the Lease in accordance with
the information given in paragraph 2 above
and we calculate that the next installment of rent first reserved as so
adjusted shall be pounds sterling [ ] exclusive of VAT and the VAT
thereon shall be pounds sterling [ ], and that the interest payable
by the Tenant to the Landlord/Landlord to the Tenant, in accordance with
paragraph 4.7 of Part I schedule 8 to the Lease shall be pounds sterling
[ ].
4. We hereby declare that:
54
(a) we have complied with the covenant imposed upon us by paragraph
6.2 of Part I of schedule 8 to the Lease;
(b) the information contained in this VAT Notice is to the best of our
knowledge, information and belief complete and accurate;
(c) we have made all due returns to the Commissioners of Customs and
Excise and such returns are complete and accurate in all material
respects and have been made within the time limits provided by
statute.
Signed by
an authorised signatory on behalf of the Tenant
The above declaration are, to the best of our knowledge and belief after due
and careful enquiry, true, accurate and complete.
Signed by
Tenant's Auditors
THE COMMON SEAL of 99 BISHOPSGATE )
LIMITED was hereunto affixed in the presence of:- )
[SEAL HERE] Director /s/
Director /s/
THE COMMON SEAL of 99 BISHOPSGATE )
MANAGEMENT LIMITED was hereunto )
affixed in the presence of:- )
[SEAL HERE] Director /s/
Director /s/
THE COMMON SEAL of HAMMERSON U.K. )
PROPERTIES plc was hereunto affixed in the )
presence of:- )
[SEAL HERE] Director /s/
Director /s/
56
DATED 24TH OCTOBER 1996
- ------------------------------------------------------------------------------
99 BISHOPSGATE LIMITED
AND
99 BISHOPSGATE MANAGEMENT LIMITED
AND
HAMMERSON U.K. PROPERITES PLC
AND
DONALDSON, LUFKIN & JENRETTE
INTERNATIONAL LIMITED
AND
DONALDSON, LUFKIN & JENRETTE, INC.
------------------------------------------------
UNDERLEASE
of
Twenty-third Floor 99 Bishopsgate London EC2
------------------------------------------------
HERBERT SMITH
Exchange House
Primrose Street
London EC2A 2HS
Tel: 0171-374 8000
Fax: 0171-496 0043
Ref: 129/P17/30433514
TABLE OF CONTENTS
CLAUSE HEADING PAGE
1. Definitions
Building
Common Parts
Development
Electricity Cost
Enactment
Head Lease/Superior Lease
Insurance Cost
Insured Rent
Interest Rate
Lettable Unit
Net Internal Area
Normal Business Hours
Permitted Part
Permitted Use
Planning Law
Plans
Premises
Public Authority
Services
Service Media
Tenant
Term
VAT
2. Interpretation
3. Demise and Rents
4. Tenant's Covenants
(1) Rent
(2) VAT
(3) Outgoings
(4) Compliance with Enactments
(5) Notices
(6) Repair
(7) Decoration and general condition and servicing
(8) Refuse
(9) To permit entry
(10) Compliance with notices relating to repair or condition
(11) Encroachments
(12) Alterations and reinstatement
(13) Use
(14) Signs
CLAUSE HEADING PAGE
(15) Alienation
(16) Registration
(17) Payment of cost of notices consents etc.
(18) Machinery
(19) Obstruction/overloading
(20) Parking/goods delivery
(21) Planning Law and compensation
(22) Indemnity
(23) Defective Premises
(24) Insurance and fire fighting equipment
(25) Dangerous and contaminative materials
(26) Yield up
(27) Regulations and covenants
(28) Security and access
(29) Head Lease
(30) Service Charge
5. Landlord's Covenants
(1) Quiet Enjoyment
(2) Insurance
(3) Head Lease
(4) Electricity Provision
(5) Management Company access
(6) VAT indemnity
6. Provision of Services
7. Provisos
(1) Forfeiture and re-entry
(2) Letting Scheme use and easements
(3) Common Parts and Service Media
(4) Service of notices
(5) Rent cesser
(6) Landlord's liability
(7) Abritration fees
(8) Rent review memorandum
(9) No warranty as to use
(10) Disputes
(11) Compensation
(12) Rateable value appeals
(13) No warranty as to security
(14) Jurisdiction
(15) Overriding lease
(16)
8. Landlord's Guarantor
9. Tenant's option to determine
CLAUSE HEADING PAGE
10. Guarantee and Guarantor's Indemnity
11. Stamp Duty Certificate
CLAUSE HEADING
Schedule 1 Premises
Schedule 2 Easements and rights granted
Schedule 3 Exceptions and reservations
Schedule 4 The first reserved rent and the review thereof
Schedule 5 Service Charge
Schedule 6 Services
Schedule 7 Deeds and documents to which the demise is subject
LEASE PARTICULARS
- ------------------------------------------------------------------------------
1. DATE 24TH OCTOBER 1996
THIS LEASE IS AND IS INTENDED TO BE DELIVERED ON THE DATE FIRST ABOVE
WRITTEN
- ------------------------------------------------------------------------------
2. PARTIES
(a) LANDLORD : 99 Bishopsgate Limited
(b) TENANT : Donaldson, Lufkin & Jenrette
International Limited
(c) MANAGEMENT COMPANY : 99 Bishopsgate Management Limited
(d) LANDLORD'S GUARANTOR : Hammerson U.K. Properties plc
(e) TENANT'S GUARANTOR : Donaldson, Lufkin & Jenrette, Inc.
- ------------------------------------------------------------------------------
3. DEMISED PREMISES : ALL THOSE premises on the
twenty-third floor of the Building
shown for identification only
edged red on Plan 1.
- ------------------------------------------------------------------------------
4. BUILDING : 99 Bishopsgate London EC2
- ------------------------------------------------------------------------------
5. CONTRACTUAL TERM AND : Commencing on the date hereof and
TERM COMMENCEMENT expiring on 23rd October 2011
AND EXPIRY DATES
- ------------------------------------------------------------------------------
6. INITIAL RENT : (pounds sterling) 423,835
- ------------------------------------------------------------------------------
7. RENT COMMENCEMENT : 25th March 1998
DATE
- ------------------------------------------------------------------------------
8. TENANT'S BREAK RIGHT : 24th October 2008
- ------------------------------------------------------------------------------
9. CAPITAL SUM : (pounds sterling) 211,917.50
inclusive of VAT
THIS UNDERLEASE made the 24th day of October One thousand nine hundred and
ninety six
BETWEEN:
(1) 99 BISHOPSGATE LIMITED whose registered office is at Lo Lam House Kumul
Highway Port Vila Vanuatu (Co. Regn. No. 10469) (registered under Section
21A to the Companies Act 1985 under company number FC018588 and branch
number BR002962) whose principal place of business is at 100 Part Lane
London W1Y 4AR (the "LANDLORD")
(2) 99 BISHOPSGATE MANAGEMENT LIMITED whose registered office is at 100 Park
Lane London W1Y 4AR (Co. Regn. No. 3071752) (the "MANAGEMENT COMPANY")
(3) HAMMERSON U.K. PROPERTIES plc whose registered office is at 100 Park
Lane London W1Y 4AR (Co. Regn. No. 298351) (the "LANDLORD'S GUARANTOR")
(4) DONALDSON, LUFKIN & JENRETTE INTERNATIONAL LIMITED whose registered
office is at Moorgate Hall 155 Moorgate London EC2M 6XB (Co. Regn. No.
2475089) (the "TENANT") and
(5) DONALDSON, LUFKIN & JENRETTE, INC. a corporation incorporated in the
State of Delware United States of America whose addrress for the purposes
of this lease is 27 Park Avenue New York New York 10172 (the "GUARANTOR")
WITNESSETH as follows:-
1. DEFINITIONS
In this lease the following expressions have the respective specified
meanings (subject to any particular interpretation required by clause 2):-
(1) "ACTS OF TERRORISM" means any act or omission of any person acting on
behalf of or in connection with any organisation or on his own behalf
which carries out activities directed towards overthrowing or
influencing by force or violence Her Majesty's Government in the
United Kingdom or any other government de jure or de facto
(2) "AGREEMENT FOR INITIAL ALTERATIONS" means the agreement of even date
herewith and made between the Landlord and the Tenant governing the
initial fitting out of the Premises
(3) "BUILDING" means the land (of which the Premises form part) having a
frontage to the west side of Bishopsgate and a return frontage to the
south side of Wormwood Street and all buildings fixtures and other
structures whatsoever from time to time thereon and the appurtenances
thereof which land (together with the building now erected thereon) is
known as 99 Bishopsgate London EC2 and is for the purpose of
identification shown verged by a blue line on the Building Plan
together with any adjoining areas designated by the Landlord or the
Management Company
(4) "COMMON PARTS" means all parts of the Building which are from time to
time intended for the common use and enjoyment of the tenants and
occupiers of the Building and persons claiming through or under them
(whether or not other
1
parties are also entitled to use and enjoy the same) and reasonably
designated as such by the Landlord and including without prejudice to
the generality of the foregoing the pedestrian ways circulation areas
lobby entrance halls lifts lift shafts fire escapes landings staircases
passages forecourts car park landscaped areas plant rooms management
suites and any other areas which are from time to time during the Term
reasonably provided by the Landlord for common use by or benefit of the
tenants and occupiers of the Building but excluding (for the avoidance
of doubt) any premises intended to let to any party or for occupation
by the Landlord or the Management Company other than for the provision
of the Services
(5) "DEVELOPMENT" has the meaning ascribed to that expression by Planning
Law
(6) "ELECTRICITY COST" means the actual cost to the Landlord of the
provision of electricity to the Premises for consumption by the Tenant
in accordance with its covenant contained at clause 5(4)
being a fair proportion as determined by the Landlord of the total
cost of the provision of electricity to the Building as a whole
(including the provision of any security for the supply of electricity
to the Building which may from time to time be required by the
relevant undertaker responsible for the supply of electricity chosen
by the Landlord) which proportion shall so far as practicable be
calculated using readings taken in such manner and at such times as
the Landlord shall from time to time determine of the check meters
relating to the Premises from time to time installed but otherwise
shall be determined in such manner as the Landlord shall in its
discretion consider to be fair and reasonable in all the circumstances
(7) "ENACTMENT" means every Act of Parliament directive and regulation now
or hereafter to be enacted or made and all subordinate legislation
whatsoever deriving validity therefrom
(8) "HEAD LEASE" means the lease under which the Landlord holds the
Premises dated 29th September 1975 made between The Prudential
Assurance Company Limited (1) and Bishopsgate Developments Limited (2)
and "Superior Landlord" means the person for the time being entitled
to the reversion immediately expectant on the term granted by the Head
Lease and every other person having an interest in reversion to that
term
(9) "GROUP COMPANY" means a company which is either the holding company of
the Tenant or a wholly owned subsidiary of the Tenant or the Tenant's
holding company (as both expressions are defined in Section 736
Companies Act 1985)
(10) "INSURANCE COST" means in respect of any period for which the same is
required by the Landlord to be calculated the aggregate of the amount
which the Landlord may reasonably and properly expend:-
(a) in effecting and maintaining insurance against the occurrence of
the Insured Risks in relation to the Building in such sum as in
the Landlord's reasonable opinion represents its then full current
replacement cost with such allowance as the Landlord from time to
time considers appropriate in respect of related liabilities and
expenses (including without limitation liability to pay any fees
or charges on the submission of an application for planning
permission and costs which might be incurred in complying with any
Enactment in carrying out
2
any replacement work and sums in respect of architects' engineers'
and quantity surveyors' and other professional fees and incidental
expenses incurred in relationto any works of debris removal and of
replacement and all VAT) and
(b) in effecting and maintaining any insurance relating to the
property owners' liability and the employer's liability of the
Landlord in relation to the Building and anything done therein and
(c) in professional fees relating to insurance including fees for
insurance valuations carried out at reasonable intervals by an
independent insurance valuations carried out at reasonable
intervals by an independent insurance valuer (but no more than once
in any year) and all reasonable fees and expenses payable to
advisers in connection with effecting and maintaining insurance
policies and claims and
(d) equivalent to the total of all reasonable excess sums (being for
the avoidance of doubt the first part of any insurance claim)
which the insurers are not liable to pay out on any insurance
claim in respect of the Building and which the Landlord or the
Management Company may have expended in replacing the damaged or
destroyed parts of the Building
(11) "INSURANCE RENT" means in respect of any period for which the same is
required by the Landlord to be calculated the aggregate of:-
(a) a fair and reasonable proportion attributable to the Premises of
the Insurance Cost for the relevant period
(b) the reasonable amount which the Landlord may expend in effecting
and maintaining insurance against up to six years' loss of the
rent secondly hereinafter reserved and Service Charge and with any
addition to the amount insured as the Landlord may decide in
respect of VAT and
(c) (without prejudice to all other provisions of this lease relating
to the use of the Premises and the vitiation of any policy of
insurance) any reasonable amount which the Landlord may expend in
paying all additional premiums and loadings on any policy or
policies of insurance required to be paid as a result of anything
done or omitted (in breach of the terms of this leasse) by the
Tenant and
(d) any tax charged on any premium for any such insurance
(12) "INSURED RISKS" means loss damage or destruction whether total or
partial caused by Acts of Terrorism fire lightning explosion riot
civil commotion strikes labour and political disturbances and
malicious damage aircraft and aerial devices (other than hostile
aircraft and devices) and articles accidentally dropped from them
storm tempest flood bursting or overflowing of water tanks and pipes
impact earthquake and accidental damage to underground water oil and
gas pipes or electricity wires and cables subsidence ground slip and
heave and such other usual commercial risks or perils against the
occurrence of which the Landlord may from time to time in its
reasonable discretion deem it desirable to insure subject to such
exclusions and limitations as are from time to time commonly
3
imposed by the insurers and subject also to the exclusion of such of
the risks specifically hereinbefore mentioned as the Landlord may in
its reasonable discretion decide where insurance cover in respect of
the risk in question is not for the time being available in the London
insurance market on reasonable terms
(13) "INTEREST RATE" means a yearly rate three per cent above either the
base rate of Barclays Bank plc or such other bank (being for the time
being generally recognised as a clearing bank in the London market)
as the Landlord may from time to time nominate or if the base rate
cannot be ascertained then above such other rate as the Landlord may
reasonably specify (and so that whenever there is reference in this
lease to the payment of interest at the Interest Rate such interest
shall be calculated on a daily basis and compounded with quarterly
rests on the usual quarter days)
(14) "LANDLORD'S SERVICES EQUIPMENT" means all the plant machinery and
equipment (with associated Service Media) within or serving the
Building from time to time (whether or not with the Premises or other
premises let or intended to be let by the Landlord) comprising or
used in connection with the following systems (to the extent
specified in the following paragraphs of this definition):-
(i) the whole of the sprinkler system within the Building
(including sprinkler heads)
(ii) the whole of the fire detection and fire alarm systems
(iii) the whole of the permanent fire fighting systems (but
excluding portable fire extinguishers installed by the Tenant
or other tenants of the Building)
(iv) the whole of the chilled water system
(v) the whole of the building management system (including the
building security system) installed by the Landlord
(vi) the central electrical supply system from the mains supply
into the Building so far as (and including) the electrical
riser busbars connecting to the distribution boards at each
level in the Building which is let or intended to be let by
the Landlord
(vii) the whole of the air handling system and the electricity
supply and control systems for the same
(viii) the standby generators and associated cabling wiring and duct
work
but excluding in each case any "stand alone" systems installed by the
Tenant or any other tenant or occupier of the Building
(15) "LETTABLE UNIT" means any unit of accommodation forming part of the
Building which is intended by the Landlord at any material time to be
for separate occupation
(16) "NET INTERNAL AREA" has the meaning ascribed to that expression by
the Code of Measuring Practice -Fourth edition (RICS/ISVA 1993) (or
if there shall be no such edition or no such exprression for the time
being the nearest equivalent thereto)
4
[GRAPHIC]
GMW
Project
99 Bishopsgate EC2
Drawing Title
Twenty Third Floor Tower
[GRAPHIC]
Building Plan
99 Bishopsgate London, EC2
(17) "NORMAL BUSINESS HOURS" means 7.30 a.m. to 7.30 p.m. on Mondays to
Fridays inclusive (except bank holidays) subject to expansion of
such hours at the reasonable discretion of the Landlord provided
that such hours will automatically expands if any other tenant in
the Building is granted the benefit of any expanded hours
(18) "OUTSIDE NORMAL BUSINESS HOURS CHARGE" means the whole of the
actual cost to the Management Company of carrying out or providing
any of the Services at the request of the Tenant outside Normal
Business Hours other than any services which are stated to be
provided 24 hours a day (including without prejudice to the
generality of the foregoing costs and expenses in the nature of
those set out in Part II of schedule 6) or in the event of any of
the Services being carried out or provided outside Normal Business
Hours to the Tenant and any other tenant or tenants of the
Building a fair proportion thereof (on a fair and reasonable basis
between the Tenant and any other tenant or occupier making use of
such Services) as reasonably determined by the Landlord. PROVIDED
THAT during the first year of the Term the cost of providing air
conditioning outside Normal Business Hours shall not exceed pounds
sterling 88 per hour (in respect of the Premises being the only
user of air conditioning at the relevant time) or pounds sterling
48 per hour per floor on the basis that any five of floors 18, 20
and 22 to 26 of the Building are simultaneously using such air
conditioning over the whole of such floors
(19) "PERMITTED PART" means any part or parts of the Premises capable
of separate occupation
(20) "PERMITTED USE" means use as high class offices for any purpose
within Class B1(a) (but not for any other purpose within that Use
Class) of the schedule to the Town and Country Planning (Use
Classes) Order 1987 and for the avoidance of doubt use of the
Premises for data processing investor services business trading
operators and investment banking complies with this provision
(21) "PLANNING LAW" means every Enactment for the time being in force
relating to the use development and occupation of land and
buildings and every planning permission statutory consent and
agreement made under any Enactment relating to the Building
(22) "PLANS" means the plans annexed hereto and "Building Plan" means
that one of them so marked
(23) "PREMISES" means the premises described in schedule 1 and all
permitted additions alterations and improvements made to them
(24) "PUBLIC AUTHORITY" means any Secretary of State and any government
department public local regulatory fire or any other authority or
institution having functions which extend to the Premises or their
use and occupation and any court of law and the companies or
authorities responsible for the supply of water gas and
electricity or any of them and any of their duly authorised
officers
(25) "REINSTATEMENT SPECIFICATION" means the specification annexed
hereto or in the event that materials listed in the specification
are not available from time to time or appropriate for use (in the
Landlord's reasonable opinion) then reference to such materials
will be substituted by reference to materials of not materially
less quality which perform a similar function PROVIDED THAT save
to the extent
5
that items of plant and equipment have been altered during
the Term the Tenant shall not be required to replace existing
items of plant and equipment for new items subject to the existing
items being in good working order
(25) "REVIEW DATE" means each of:-
(a) the 24th October in the years Two thousand and one and
every fifth anniversary of that date during the Term (and
the last day of the Term)
(b) any date so stipulated by virtue of paragraph 5 of schedule 4
(26) "SERVICES" means the services and other matters specified in
clause 6 and Part I of schedule 6
(27) "SERVICE MEDIA" means those parts of the Building comprising gas
water drainage electricity telephone telex signal and
telecommunications heating cooling ventilation air conditioning
fire alarm and other pipes drains sewers mains cables wires supply
lines ducts conduits flues and all other common conducting media
plant appliances and apparatus for the provision supply control
and monitoring of services to or from the Building and other
common equipment
(28) "TERM" means a term of years commencing on the date hereof and
expiring on 23rd October 2011 and includes any period of holding
over or extension whether by any Enactment or common law
(29) "TERMINATION NOTICE" means not less than 12 months and 1 day's
prior written notice unless either:
(a) any Enactment or decision not capable of appeal on a point
of law confirming that the Tenant is not entitled to a new
tenancy on the expiration of such notice is in force or
upheld as at 22nd October 2007 (in which case not less
than 6 months prior written notice need be given); or
(b) any other tenant enters into a lease prior to September 1998
of premises comprising at least a floor of the building
within the security of tenure protections of the Landlord
and Tenant Act 1954 for a term of not less than 10 years
(without break rights) and is granted right to determine
such lease on less than such 12 months' and 1 day's prior
written notice (in which case the notice period hereunder
shall be reduced to such notice period as is granted to such
tenant in such circumstances)
(30) "VAT" means Value Added Tax as referred to in the Value Added Tax
Act 1994 (or any tax of a similar nature which may be substituted
for or levied instead of it by statutes)
2. INTERPRETATION
(1) Words importing the singular include the plural and vice versa and
words importing one gender include both other genders
(2) The expressions "Landlord" "Tenant" "Management Company" and
"Guarantor" wherever the context so admits include their
respective successors in title and
6
where a party comprises more than one person covenants and
obligations of that party take effect as joint and several
covenants and obligations
(3) A covenant by the Tenant not to do (or omit) any act or thing also
operates as a covenant to use reasonable endeavours not to permit
or suffer it to be done (or omitted) and to prevent (or as the
case may be to require) it being done
(4) References in this lease to:-
(a) any clause sub-clause schedule or paragraph is a reference
to the relevant clause sub-clause schedule or paragraph of
this lease and clause and schedule headings shall not affect
the construction of this lease
(b) any right of (or covenant to permit) the Landlord or the
Management Company to enter the Premises shall also be
construed (subject always to the proviso to clause 4(9)) as
entitling the Landlord to remain on the Premises with or
without equipment and permitting such right to be exercised
by all persons authorised by the Landlord for as short a
period as reasonably practicable and making good all damage
caused and causing as little inconvenience as reasonably
possible save where the right of entry is exercised to
remedy any breach hereunder where the Landlord only
undertakes to make good damage caused
(c) any consent licence or approval of the Landlord or words to
similar effect mean a consent licence or other approval in
writing signed by or on behalf of the Landlord and given
before the act requiring consent licence or approval
(d) the Premises (except in clause 4(15)) shall be construed as
extending where the context permits to any part of the
Premises
(e) a specific Enactment includes every statutory modification
consolidation and re-enactment and statutory extension of it
for the time being in force except in relation to the Town
and Country Planning (Use Classes) Order 1987 which shall be
interpreted exclusively by reference to the original
provisions of Statutory Instrument 1987 No 764 whether or
not the same may at any time have been revoked or modified
(f) the last year of the Term includes the final year of the
Term if it shall determine otherwise than by effluxion of
time and references to the expiry of the Term include such
other determination
(5) (a) Where the context permits rents or other sums being due from
the Tenant to the Landlord or the Management Company mean
that they are exclusive of any VAT
(b) whenever the consent licence or approval of the Landlord is
required under this lease the relevant provision shall be
construed as also requiring (and any consent licence or
approval given by the Landlord shall be deemed subject to
the need for) the consent licence or approval of the
Superior Landlord (for which the Landlord shall apply at the
Tenant's reasonable cost) where the same is required under
the Head Lease except that nothing in this lease or in any
consent licence or approval by the
7
Landlord shall imply that the Superior Landlord's
consent licence or approval will not be unreasonably
withheld or delayed
(c) references to any right of (or covenant to permit) the
Landlord to enter Premises shall extend to the Superior
Landlord and to all persons authorised by it and shall be
construed in the manner required by clause 2(4)(b) but in
relation to the Superior Landlord and those with its
authority
(d) the rights excepted and reserved in schedule 3 are also
excepted and reserved for the benefit of the Superior
Landlord
3. DEMISE AND RENTS
The Landlord at the request of the Guarantor and in consideration of the
payment by the Landlord to the Tenant of the sum of Two hundred and
eleven thousand nine hundred and seventeen pounds and 50 pence (pounds
sterling 211,917.50) paid on the date hereof (receipt of which is
acknowledged by the Tenant) DEMISES unto the Tenant ALL THAT the
Premises TOGETHER WITH the easements and rights specified in schedule 2
exercisable in common with the Landlord and all others with its
authority or otherwise from time to time entitled thereto EXCEPT and
RESERVED unto the Landlord and all other persons authorised by it from
time to time during the Term or otherwise from time to time entitled
thereto (including the Management Company in relation to the provision
of the Services) the easements and rights specified in schedule 3
TO HOLD the Premises unto the Tenant (together with and except and
reserved as aforesaid) for the Term SUBJECT to all rights easements
covenants stipulations and other matters affecting the same and SUBJECT
to the provisions of the deeds and documents mentioned in schedule 7
YIELDING AND PAYING therefor:
FIRST yearly and proportionately for any part of a year until 24th March
1998 a peppercorn (if demanded) and thereafter until the first Review
Date (and thereafter as determined pursuant to schedule 4) the yearly
rent of Four hundred and twenty three thousand eight hundred and thirty
five pounds (pounds sterling 423,835) exclusive of VAT (subject to clause
5(6)) payable by equal quarterly payments to be made in advance on the
usual quarter days in every year the first such payment to be made on
25th March 1998
SECONDLY as additional rent from time to time the Insurance Rent payable
on demand
THIRDLY as additional rent on demand (in addition and without prejudice
to the Landlord's right of re-entry and any other right) interest at the
Interest Rate on any sum owed by the Tenant to the Landlord whether as
rent or otherwise which is not:-
(a) received in cleared funds by the Landlord within 10 days
following the due date (or in the case of money due only on
demand within fourteen days after the date of demand) calculated
for the period commencing on the due date for payment and ending
on the date the sum and the interest is received in cleared funds
by the Landlord
(b) demanded (or if tendered is for the time being refused) by the
Landlord in circumstances where it is prudent for it not to
demand or accept any payment having regard to a breach of any of
the Tenant's obligations under this lease of
8
which the Tenant has received notice calculated for the period
commencing on the due date for payment and ending on the date the
sum (and the interest) is subsequently received by the Landlord
FOURTHLY as additional rent all VAT for which the Landlord is or may
become liable to account to H.M. Customs & Excise (or other relevant
body to whom account has for the time being to be made) on the supply by
the Landlord to the Tenant under or in connection with the provisions of
this lease or the interest created by it and of any other supplies
whether of goods or services such rent fourthly reserved to be due for
payment contemporaneously with the other rents or sums to which it
relates
AND FIFTHLY a rent equal to the Electricity Cost such rent to be payable
on demand (either annually or by instalments) as the Landlord shall
determine
4. TENANT'S COVENANTS
The Tenant covenants with the Landlord (and in respect of sub-clause
4(30) also with the Management Company) throughout the Term subject to
clause 4(15):
RENT
(1) To pay the rents reserved by this lease on the days and in the
manner set out in clause 3 without deduction or set off and
(unless for the time being the Landlord shall have required in
writing to the contrary) to pay the rent first reserved (together
with any sum in respect of the rent fourthly reserved as may be
applicable thereto) by banker's standing order to such bank as the
Landlord may from time to time nominate
VAT
(2) Subject to clause 5(6) wherever the Tenant is required to pay any
amount to the Landlord hereunder by way of reimbursement or
indemnity to pay on the production of a valid VAT invoice to the
Landlord (as applicable) in addition an amount equivalent to any
VAT incurred by the Landlord save to the extent that the Landlord
obtains credit for such VAT incurred by the Landlord pursuant to
sections 24 25 and 26 Value Added Tax Act 1994 or any regulations
made thereunder
OUTGOINGS
(3) To pay all rates taxes charges and other outgoings whatsoever now
or hereafter assessed charged or imposed upon the Premises or upon
their owner or occupier (and a proper proportion determined by the
Landlord attributable to the Premises of any rates taxes charges
and other outgoings now or hereafter assessed charged or imposed
upon the Premises in common with other premises or upon the owners
or occupiers thereof) and (to the extent the Tenant does not pay
it directly to the relevant supplier) the total cost (including
meter rents) of all water (including chilled water) electricity
and gas separately metered and/or exclusively supplied to the
Premises during the Term as reasonably determined by the Landlord
excluding (without prejudice to the rent fourthly reserved and
clause 4(2)) any tax payable by the Landlord as a direct result of
any actual or implied dealing with the reversion of this lease or
of the Landlord's receipt of income
9
COMPLIANCE WITH ENACTMENTS
(4) To comply with the requirements of all Enactments and of every
Public Authority (including the due and proper execution of any
works) in respect of the Premises their use occupation employment
of personnel in them and any work being carried out to them
(whether the requirements are imposed upon the owner lessee or
occupier) and not to do or omit anything by which the Landlord may
become liable to make any payment or do anything under any
Enactment or requirement of a Public Authority
NOTICES
(5) As soon as reasonably practicable and in any event within 5
working days of receipt of the same to give to the Landlord notice
of (and a certified copy of) any notice permission direction
requisition order or proposal made by any Public Authority and
without delay to comply in all respects at the Tenant's cost with
the provisions thereof save that the Tenant shall if so required
by and at the cost of the Landlord make or join in making such
objections or representations in respect of any of them as the
Landlord may reasonably require
REPAIR
(6) To put and keep the Premises (and any works or installations made
pursuant to paragraphs 4 and 5 of Schedule 2) in good and
substantial repair and condition (damage by any of the Insured
Risks excepted to the extent that the insurance money shall not
have been rendered irrecoverable subject to clause 5(2)(b) or
insufficient because of some act or default of the Tenant or of
any person deriving title under or through it or their respective
servants or agents or invitees) and to replace whenever necessary
during the Term and on expiry of the Term the landlord's fixtures
and fittings (including any fitted carpets) in the Premises which
may have become beyond economic repair with items of the same type
and quality
DECORATION AND GENERAL CONDITION AND SERVICING
(7) (a) To keep the Premises maintained to a high standard of
decorative order and finish and properly cleansed and tidy
and (without prejudice to the foregoing) as often as the
same shall be necessary (and not less frequently than once
in every fifth year of the Term but not more than once in
any 18 month period) and also in the last year of the Term
to clean paint polish or otherwise treat as the case may be
all inside surfaces of wood and metal work of the Premises
usually or requiring to be painted polished or otherwise
treated with two coats at least of high quality paint or
polish vinyl wall coverings (where applicable) or other
appropriate materials in a good and workmanlike manner (and
during the last year of the Term in the colour scheme
specified and otherwise in accordance with the Reinstatement
Specification) PROVIDED ALWAYS THAT the Tenant shall not be
obliged to carry out any such decorative treatment if the
need for it is caused by damage by any of the Insured Risks
to the extent (subject to clause 5(2)(b)) that the insurance
money shall not have been rendered irrecoverable or
insufficient because of some act or default of the Tenant or
of any person deriving title under or through it or their
respective servants agents or invitees
10
(b) To clean the inside of all external window glazing in the
Premises at least once in every month using reputable
contractors
(c) To enter into and maintain contracts for the regular
inspection maintenance and servicing of all fixed plant and
equipment comprised in the Premises which has or is likely
to have any impact on the Landlord's Services Equipment by
reputable contractors approved by the Landlord (such
approval not to be unreasonably withheld) and to obtain
satisfactory test certificates as may be reasonably required
by the insurers and whenever reasonably required to produce
copies of such contracts and certificates
REFUSE
(8) Not to deposit any refuse on any of the Common Parts except in
areas designated for such purpose from time to time by the
Landlord and to comply with all requirements of any Public
Authority and any reasonable regulations made by the Landlord
pursuant to clause 4(27) in relation to control over and disposal
of rubbish
TO PERMIT ENTRY
(9) To permit the Landlord (and persons authorised by the Landlord) at
reasonable times in compliance with the Tenant's reasonable
security requirements on reasonable prior written notice (except
in an emergency) to enter the Premises in order to:-
(a) examine their state of repair
(b) ascertain that the covenants and conditions of this lease
have been observed
(c) take any measurement or valuation of the Premises
(d) rebuild renew cleanse alter test maintain repair inspect and
make connections to any part of the Building including the
Service Media (PROVIDED that the Landlord will procure that
such entry takes place outside Normal Business Hours where
practicable)
(e) during the last six months of the Term (or at any time in
the case of a disposal of the Landlord's interest) to show
the Premises to prospective purchasers or tenants and their
agents
(f) exercise the rights described in schedule 3
COMPLIANCE WITH NOTICES RELATING TO REPAIR OR CONDITION
(10) (a) To comply with any notice requiring the Tenant to remedy any
breach of its covenants
(b) If the Tenant shall not within a reasonable time comply with
any such notice to permit the Landlord and any authorised
person to enter the Premises to remedy the breach as the
Tenant's agent and at the Tenant's proper cost the Landlord
making good any damage caused
11
(c) To pay to the Landlord on demand all the proper costs and
expenses incurred by the Landlord under the provisions of
this sub-clause
ENCROACHMENTS
(11) (a) To preserve all rights of light and other easements
belonging to the Premises and not knowingly to give any
acknowledgment that they are enjoyed by consent
(b) Not knowingly to do or omit anything which might subject the
Premises to the creation of any new easement and to give
notice to the Landlord forthwith of any encroachment which
might have that effect
ALTERATIONS AND REINSTATEMENT
(12) (a) Not to carry out any Development of or on the Premises nor
(without prejudice to the exclusion of structural parts from
the demise of the Premises) any works affecting any
structural parts of the Building and not to commit any waste
(b) Without prejudice to any other rights of the Landlord in
respect of areas not included in the Premises not to install
or erect any exterior lighting shade or awning or place any
structure or other thing outside the Premises
(c) Without prejudice to paragraphs (a) and (b) of this
sub-clause and subject to the provisos to this paragraph (c)
not to make any other alteration or addition to the Premises
(including all electrical and other plant and equipment and
the installation and removal of demountable partitioning)
except:-
(i) in accordance with plans and specifications
(adequately describing the work in question and the
manner in which the work will be carried out)
previously submitted at the Tenant's expense in
triplicate to and approved by the Landlord (such
approval not to be unreasonably withheld or delayed
PROVIDED THAT the Landlord shall respond to the
Tenant's submission within 10 working days in the case
of minor alterations (excluding any alterations which
affect any of the Landlord's Services Equipment) and
if the Landlord fails to respond within 10 working
days as aforesaid it shall be deemed to have accepted
such minor alterations AND PROVIDED FURTHER that the
initial fitting out of the Premises following the date
hereof shall be governed by the Agreement for Initial
Alterations
(ii) in a manner which shall not materially and adversely
affect the Landlord's Services Equipment any Service
Media or the provision of any of the Services
(iii) in accordance with any relevant terms conditions
recommendations and regulations of any Public
Authority (and in particular in relation to any
electrical installation in accordance with the terms
and conditions laid down by the Institution of
Electrical Engineers and the Regulations of the
Electricity Supply
12
Authority) and the insurance company with whom
the Premises are for the time being insured and
(iv) in a good and workmanlike manner
PROVIDED ALWAYS THAT subject to clause 4(12)(c)(i):-
(I) no such alterations or additions shall be carried out
until the Landlord has issued its consent in writing
to which the Tenant shall if required join as a party
(II) once any such alterations or additions have been
carried out the Tenant shall supply to the Landlord
as-built plans in triplicate (together with a computer
aided design disk and 35 mm slides) showing the works
as carried out
(d) At the expiry of the Term to remove:-
(i) all alterations and additions made to the Premises by
the Tenant
(ii) all work done in connection with the original fitting
out by the Tenant in pursuance of the Agreement for
Initial Alterations
and to restore and make good the Premises in accordance with
the Reinstatement Specification in a proper and workmanlike
manner to the condition and design which existed before the
alterations or additions were made with all services
properly sealed off
USE
(13) Not to use the Premises or any chattels in them:-
(a) for any purpose (and not to do anything in or to the
Premises) which may be or become or cause a nuisance
obstruction or damage to any person or property
(b) for a sale by auction or for any public meeting or for any
dangerous noxious noisy illegal or immoral trade business or
activity or for residential purposes and not to use the
Common Parts for the transaction of any business or
(c) (without prejudice to the preceding paragraphs of this
sub-clause) except for the Permitted Use
SIGNS
(14) (a) Not to erect any aerial satellite dish sign signboard pole
antenna wire or other apparatus on the outside of the
Building save for the right granted pursuant to paragraph 3
of schedule 2
(b) Not to affix or exhibit so as to be visible from outside the
Premises any placard sign notice fascia board or
advertisement except the approved signs referred to in
paragraph 3 of schedule 2
13
ALIENATION
(15) (a) If the Tenant at any time desires to assign the whole of the
Premises the Tenant shall first by an irrevocable
unconditional written notice (the "Tenant's Notice") served
upon the Landlord offer to surrender or assign this lease
upon such financial terms and conditions as the Tenant may
desire
(b) If the Landlord wishes to accept such surrender or
assignment it shall within twenty-one days of receipt of the
Tenant's Notice serve a counter-notice (the
"Counter-Notice") upon the Tenant stating as much
(c) If the Landlord serves a Counter-Notice on the Tenant then
the Tenant shall surrender or assign (at the Landlord's
option) the Premises to the Landlord (or as the Landlord may
direct) within six months of receipt of the Counter-Notice
either with vacant possession or subject only to a permitted
underletting and the Tenant's liability hereunder shall
cease in respect of any matters arising following the date
of such assignment or surrender but without prejudice to any
antecedent breaches of covenant
(d) If the Landlord does not serve a Counter-Notice then the
Tenant must (if it wishes to assign) complete its assignment
on terms greater than 95 per cent in value of the terms and
conditions stipulated in the Tenant's Notice within six
months from the date of the Tenant's Notice and if the
Tenant shall fail to complete within such period if it still
wishes to assign the whole of the Premises it must reinstate
the procedure set out in this clause 4(15)
(e) Subject to the foregoing provisions of this sub-clause 4(15)
not to assign mortgage charge or underlet or in any other
manner part with possession of any part (being less than the
whole) of the Premises or agree to do so except that the
Tenant may underlet the whole of (but not more or less than)
any Permitted Part or Permitted Parts in accordance with
paragraphs (h) and (i) of this sub-clause
(f) Subject to the foregoing provisions of this sub-clause 4(15)
not to assign underlet or otherwise part with possession of
or the whole of the Premises or agree to do so except that
the Tenant may assign or underlet the whole of the Premises
in accordance with paragraph (g) or (h) respectively of this
sub-clause
(ASSIGNMENT)
(g) (i) Not to assign the whole of the Premises without first
obtaining the Landlord's consent issued within 2
months before completion of the assignment which
consent shall not be unreasonably withheld or delayed
but which may be granted subject to any one or more of
the conditions referred to in paragraph (g)(ii) and
which may be withheld if any one or more of the
circumstances referred to in paragraph (g)(iii) exist
14
(ii) The conditions referred to in paragraph (g)(i) (which
are specified for the purposes of section 19(1A)
Landlord and Tenant Act 1927) are:
AUTHORISED GUARANTEE
(a) that the Tenant shall enter into an authorised
guarantee agreement (as defined in section 16
Landlord and Tenant (Covenants) Act 1995) with
the Landlord in a form which the Landlord
reasonably requires
THIRD PARTY GUARANTEE/RENT DEPOSIT
(b) that if so reasonably required by the Landlord
the proposed assignee shall have procured
covenants with the Landlord by a guarantor or
guarantors (not being the Tenant or any
guarantor) reasonably acceptable to the Landlord
in a form acceptable to the Landlord (acting
reasonably);
INTRA GROUP DEALINGS
(c) if the proposed assignee is a Group Company the
Tenant shall have procured either:
(A) if the Tenant's obligations under this
lease are guaranteed by another Group
Company that such Group Company covenants
with the Landlord on the same terms
(mutatis mutandis) as those contained in
clause 10; or
(B) if there is no guarantor of the Tenant's
obligations under this lease and if the
assignee is not at the date of the
application for consent to the proposed
assignment in the reasonable opinion of
the Landlord of financial standing
equivalent to or greater than the Tenant
at the date of this lease that the
proposed assignee procures covenants by a
Group Company which is not the Tenant or
the proposed assignee and which is in the
reasonable opinion of the Landlord of
financial standing equivalent to or
greater than the Tenant in the same terms
(mutatis mutandis) as those contained in
clause 10; and
(iii) The circumstances referred to in paragraph (g)(i)
(which are specified for the purposes of section
19(lA) Landlord and Tenant Act 1927) are:-
(a) where the Tenant's solicitors have not given an
undertaking to the Landlord's solicitors to pay
all reasonable legal surveyor's and management
costs disbursements and VAT arising on the
application for consent to such assignment
whether or not consent is
15
granted unless the Landlord unreasonably
withholds consent in circumstances where it is
required to be reasonable; and/or
(b) where any of the rents and Interim Sum due from
the Tenant to the Landlord or the Management
Company respectively under this lease remain
unpaid at the date of the application for
consent to the proposed assignment
(UNDERLETTING)
(h) Not to underlet the whole of the Premises or any Permitted
Part (each being referred to in this paragraph as the
premises) except:-
(i) to a person who before the underletting shall have
covenanted with the Landlord to observe and perform
the Tenant's obligations under this lease during the
sub-term to the extent they relate to the premises
demised by the underletting (other than the payment of
rents) and a covenant not to assign the whole of the
premises without the Landlord's consent (which shall
not be unreasonably withheld or delayed) and an
unqualified covenant not to assign part of the
premises or to underlet or otherwise part with
possession or share the occupation of the premises or
any part of them
(ii) by reserving as a yearly rent without payment of a
fine or premium (in addition to the service and
insurance and other rents payable under this lease
except the rent first hereby reserved or (in the case
of underletting of a Permitted Part) a pro rata
proportion of them) an amount equal to:-
(a) (in the case of an underletting of the Premises)
the then open market rack rental value of the
Premises
(b) (in the case of an underletting of a Permitted
Part) a pro rata proportion of the then open
market rack rental value of the Premises
the proportion in each case being calculated by
reference to the Net Internal Area of the Permitted
Part in relation to the Net Internal Area of the
Premises, in all cases such rent to be payable by
equal quarterly instalments in advance on the usual
quarter days and to be approved by the Landlord prior
to the underletting (such approval not to be
unreasonably withheld or delayed) but the amount of
such rent and the approval of the Landlord thereto may
not be used as evidence by the Tenant for the purpose
of any rent review pursuant to this lease
(iii) by a form of underlease:-
(a) by which the principal rent reserved by the
underlease is reviewed upwards only at not
greater than five year intervals during the
sub-term in accordance with the same
16
principles (mutatis mutandis) and at the times
as apply to the rent first reserved by this lease
(b) requiring the underlessee to observe and perform
all the covenants and other provisions binding
on the Tenant under this lease (other than the
covenant by the Tenant to pay rents) to the
extent they relate to the premises and
containing:-
(A) a condition for re-entry by the underlessor
on breach of any covenant by the underlessee
(B) a qualified covenant not to assign the whole
of the premises and an absolute covenant not
to assign part of the premises or to
underlet or otherwise part with possession
or share the occupation of the premises or
any part of them
(iv) with the Landlord's consent issued within three months
before completion of the underletting which consent
(subject to compliance with the foregoing conditions
precedent) shall not be unreasonably withheld or
delayed
(i) In relation to an underlease of a Permitted Part:-
(i) not to include in the sub-demise any part of the
entrance to or the reception area of the Premises
(ii) to except from the underlease all necessary
circulation areas and plant and equipment which will
serve the Premises in common and to reserve a separate
service charge rent in respect of their maintenance
repair and renewal
(iii) not as a result of the grant to create or permit the
creation of more than four separate occupations
affecting the whole of the Premises (occupations in
right of this lease counting as one occupation)
(iv) not to grant or agree to grant the underlease without
providing for the exclusion of sections 24 to 28
inclusive of the Landlord and Tenant Act 1954 in
relation to the underlease in pursuance of an Order
duly made under section 38(4) of that Act before the
date of grant
(j) To enforce the observance and performance by every such
underlessee and its successors in title of the provisions of
the underlease and not expressly or impliedly to waive any
breach of them nor vary the terms of any underlease
(k) Not to agree any reviewed rent payable under an underlease
without the Landlord's consent and if the rent review under
any underlease is to be determined by an independent person
not to agree his appointment without the Landlord's consent
(PROVIDED ALWAYS THAT the Landlord shall not unreasonably
withhold or delay any consent required under this
sub-paragraph) and to procure that any representations which
17
the Landlord may wish to make in relation to the rent
review are duly submitted to the independent person and to
provide to the Landlord promptly on the same becoming
available copies of any representations made by or on behalf
of the Tenant or the underlessee in relation to such rent
review
(SHARING OCCUPATION)
(l) Not to part with or share the occupation of the Premises or
any part of them except that the Tenant may share occupation
with a company which is (but only for so long as it remains)
either the holding company of the Tenant or a majority-owned
subsidiary of the Tenant or of the Tenant's holding company
(as those expressions are defined in section 736 Companies
Act 1985) so long as the Tenant does not grant the person
sharing occupation exclusive possession (so that such
company occupies as licensee only without creating any
relationship of landlord and tenant) nor otherwise transfer
or create a legal estate and the Tenant shall notify the
Landlord of the identity of each company in occupation
REGISTRATION
(16) (a) Within twenty-one days after any disposition or devolution
of this lease or of any estate or interest in or derived out
of it to give notice in duplicate of the relevant
transaction to the Landlord for registration with a
certified copy of the relevant instrument and to pay to the
Landlord a fair and reasonable fee for each such
registration of not less than twenty five pounds
(b) To register with the Landlord particulars of the
determination of every rent review under any underlease of
the Premises within fourteen days after the date of
determination
PAYMENT OF COST OF NOTICES CONSENTS ETC.
(17) To pay on demand all reasonable expenses (including counsels'
solicitors' surveyors and bailiffs' fees) properly incurred by the
Landlord in and incidental to:
(a) the preparation and service of a notice under section 146
Law of Property Act 1925 or in contemplation of any
proceedings under section 146 or 147 of that Act
notwithstanding that forfeiture is avoided otherwise than by
relief granted by the court and
(b) every reasonable step taken during or after the expiry of
the Term in connection with the enforcement of the Tenant's
obligations under this lease including the service or
proposed service of all notices and schedules of
dilapidations and
(c) every application for consent licence or approval under this
lease but not if the application is unreasonably refused or
delayed or granted subject to unreasonable conditions (where
such consent is not to be unreasonably withheld or delayed)
MACHINERY
(18) Not to install in the Premises any plant or machinery other than
usual office equipment without the Landlord's consent which shall
not be unreasonably withheld PROVIDED ALWAYS THAT no plant or
machinery shall be installed or operated in the Premises and
nothing shall be done or omitted in them which may cause:-
(a) the efficiency of the heating ventilation air conditioning
and cooling system installed in the building to be
diminished or impaired in any way
(b) noise dust fumes smell vibration or electrical interference
affecting or having any other intrusive effect on any other
part of the Building or other adjoining property or persons
outside the Premises
OBSTRUCTION/OVERLOADING
(19) Not to obstruct:-
(a) or damage any part of the Building or exercise any of the
rights granted by this lease in a way which causes nuisance
or damage
(b) any means of escape
(c) or discharge any deleterious matter into
(i) any pipe drain or other conduit serving the Premises
and (to the extent they lie within the Premises) to
keep them clear and functioning properly or
(ii) any Service Media
(d) or stop-up or darken the windows and other openings of the
Premises
nor to overload or cause undue strain to the Service Media
or any other part of the Building and in particular not to suspend
any undue weight from the ceilings or walls of the Premises and
not to exceed the following floor loadings:-
floor finishings: : 4kN/m2 (80lbs per sq.ft)
live load : 1kN/m2 (20lbs per sq.ft)
(e) any requisite notice erected on the Premises including any
erected by the Landlord in accordance with its powers under
this lease
PARKING/GOODS DELIVERY
(20) To ensure that all loading unloading deliveries and despatch of
goods is carried out only by using the service accesses and goods
lifts designated by the Landlord for the use of the Premises
PLANNING LAW AND COMPENSATION
(21) Without prejudice to clause 4(4) at all times during the Term to
comply with the provisions and requirements of Planning Law
relating to or affecting
19
(a) (i) the Premises
(ii) any operations works acts or things carried out
executed done or omitted on the Premises
(iii) the use of the Premises
(iv) the use by the Tenant of (and the exercise of any
other rights hereunder in respect of) any other parts
of the building
(b) Subject to the provisions of paragraph (c) of this
sub-clause as often as occasion requires during the Term at
the Tenant's expense to obtain and if appropriate renew all
planning permissions (and serve all notices) required under
Planning Law in respect of the Premises whether for the
carrying out by the Tenant of any operations or the
institution or continuance by the Tenant of any use of the
Premises or any part thereof or otherwise
(c) Not without the Landlord's consent (such consent not to be
unreasonably withheld or delayed) to apply for any planning
permission relating to the Premises (and not to apply for
any such planning permission relating to any other part of
the Building) but so that subject to compliance with
paragraph (e) of this sub-clause the Landlord's consent
shall not be unreasonably withheld or delayed to the making
of a planning application in respect of the Premises
relating to any operations or use or other thing (if any)
which assuming it to be implemented in accordance with
Planning Law would otherwise not be in breach of the
provisions of this lease
(d) If the Landlord so requires in connection with any relevant
proposal by the Tenant to apply for a determination under
section 191 or 192 Town and Country Planning Act 1990
(e) If the Landlord consents in principle to any application by
the Tenant (which it hereby agrees to consider and determine
with all due expedition) for planning permission to submit a
draft of the application to the Landlord for its approval
and to give effect to its reasonable requirements in respect
thereof and if and to the extent the Landlord so requires to
lodge the application with the relevant authority in the
joint names of the Landlord and the Tenant and in duplicate
(f) Not to implement any planning permission before the Landlord
has acknowledged that its terms are acceptable nor before
the Landlord has received any cash or other security which
it reasonably requires for compliance with any conditions
imposed by the planning permission
(g) If the Landlord at the Landlord's cost reasonably requires
or the Tenant desires to lodge and progress diligently an
appeal against any refusal of an application for planning
permission lodged in respect of the Premises by the Tenant
or by any person claiming under or through the Tenant
(whether or not lodged in its name alone) the Landlord
undertakes to cooperate fully with the Tenant in respect of
any such appeal unless such
20
appeal would be likely to have a material and adverse effect
on the Landlord's interests in the Building
(h) Unless the Landlord otherwise directs to complete before the
expiry of the Term all works on the Premises required as a
condition of any planning permission implemented by the
Tenant or by any person claiming under or through it
(i) If the Tenant receives or is entitled to receive any
statutory compensation under any Enactment in relation to
its interest in the Premises the Tenant shall on any
determination of its interest prior to the expiry of this
lease by effluxion of time forthwith make such provision as
is just and equitable for the Landlord to receive its due
benefit from such compensation
INDEMNITY
(22) To indemnify the Landlord against all expenses proceedings costs
claims damages demands and any other liability or consequence
arising out or in respect of any breach of any of the Tenant's
obligations under this lease (including all costs reasonably
incurred by the Landlord in an attempt to mitigate any such
breach) or of any act omission or negligence of the Tenant or any
person at the Premises with the Tenant's authority
DEFECTIVE PREMISES
(23) On becoming aware of the same (or when the Tenant ought reasonably
to have become aware of the same) to give notice forthwith to the
Landlord of any defect in the Premises which might give rise to:-
(a) an obligation on the Landlord to do or refrain from doing
anything in relation to the Premises or
(b) any duty of care or the need to discharge such duty imposed
by the Defective Premises Act 1972 or otherwise
and at all times to display and maintain all notices which the
Landlord may from time to time reasonably require to be displayed
at the Premises in relation to their state of repair and condition
INSURANCE AND FIRE FIGHTING EQUIPMENT
(24) (a) Not to do or omit anything by which any insurance policy
(relevant extracts of which shall have been provided to the
Tenant) relating to the Building or any part of it becomes
void or voidable or by which the rate of premium on such
policy may be increased
(b) To comply with all proper requirements of the insurers and
to provide and maintain unobstructed appropriate operational
fire fighting equipment and fire notices on the Premises
(c) To notify the Landlord forthwith of:-
21
(i) any incidence of any Insured Risk on the Premises and
of any other event which ought reasonably to be
brought to the attention of insurers and of which the
Tenant ought reasonably to be aware
(ii) the insurable value of any fixture installed in the
Premises by the Tenant or any person claiming under or
through the Tenant
(d) That if at any time the Tenant or any person claiming under
or through it shall be entitled to the benefit of any
insurance of the Premises to cause all money paid under such
insurance to be applied in making good the loss or damage in
respect of which it was paid
(e) Subject to clause 5(2)(b) if the whole or any part of the
Building is damaged or destroyed by any of the Insured Risks
at any time during the Term and the insurance money under
any insurance policy effected by the Landlord is rendered
wholly or partially irrecoverable because of some act or
default of the Tenant or any person deriving title under or
through the Tenant or their respective servants agents or
invitees forthwith to pay the Landlord the whole amount of
the insurance money so irrecoverable
DANGEROUS AND CONTAMINATIVE MATERIALS
(25) Not to keep place store or use or permit or suffer to be kept
placed stored or used in or upon or about the Premises any
materials substance or other thing of a dangerous inflammable
combustible explosive corrosive or offensive nature or any
materials substance or other thing which may in any way cause
pollution injury or harm by percolation corrosion contamination
migration release or otherwise on beneath or in the vicinity of
the Premises
YIELD UP
(26) (a) At the expiry of the Term to remove all chattels and
tenant's fixtures and quietly to yield up the Premises
reinstated in accordance with the Reinstatement
Specification and restored and made good to the extent
required under clause 4(12)(d) and in the state of repair
condition decorative order and layout otherwise required by
this lease and any licences or consents issued in pursuance
of it and to make good any damage so caused in a proper and
workmanlike manner
(b) The Tenant irrevocably authorises the Landlord to remove and
dispose of any chattels which may be left in the Premises
within 28 days after the Tenant has quit them (without being
obliged to obtain any consideration for the disposal) and
the Tenant irrevocably declares that any such chattels will
stand abandoned by it
REGULATIONS AND COVENANTS
(27) To comply with:-
(i) all reasonable regulations reasonably made by the
Landlord from time to time and notified to the Tenant
in writing for the good management of the Building
PROVIDED ALWAYS THAT no such regulations shall purport
to amend the terms expressed in
22
this lease and if there is any inconsistency
between the terms of this lease and the regulations
the terms of this lease shall prevail
(ii) all covenants stipulations and other matters affecting
the Premises and not to interfere with any rights
easements or other matters affecting the Premises
SECURITY AND ACCESS
(28) To use all reasonable endeavours to ensure that the Tenant's
visitors to the Premises observe such security regulations which
may apply to them
HEAD LEASE
(29) (a) To observe and perform the covenants and conditions on the
part of the lessee contained in the Head Lease so far as
they relate to the Premises except the covenant for the
payment of rent and except also so far as the obligations
relating to insurance fall to be observed and performed by
the Landlord pursuant to clause 5(2)
(b) Not to do or omit any act or thing which would or might
cause the Landlord to be in breach of the Head Lease
SERVICE CHARGE
(30) To pay the Service Charge (and VAT thereon) to the Management
Company at the times and in the manner provided for in clause 6
and schedule 5 without deduction or set off and to pay the
Outside Normal Business Hours Charge within 10 days of demand
(either annually or by monthly instalments) as the Management
Company shall reasonably determine PROVIDED THAT for the period
from the date hereof until the earlier of 25th June 1997 and the
date on which the Tenant commences full beneficial occupation of
the Premises following the works contemplated by the Agreement
for Initial Alterations the Service Charge payable by the Tenant
in any Accounting Period shall not exceed pounds sterling 32,190
inclusive of VAT and PROVIDED FURTHER that the Service Charge
payable in respect of the twelve month period from the earlier of
25th June 1997 and the date on which the Tenant commences full
beneficial occupation of the Premises following the works
contemplated by the Agreement for Initial Alterations shall be
pounds sterling 74,573.50 exclusive of VAT.
5. LANDLORD'S COVENANTS
The Landlord covenants with the Tenant:
QUIET ENJOYMENT
(1) That if the Tenant observes and performs its covenants contained
in this lease the Tenant may peaceably hold and enjoy the
Premises without any lawful interruption by the Landlord or any
person rightfully claiming through under or in trust for it
23
INSURANCE
(2) (a) To keep the Building (except all tenants' plant and
equipment and trade fixtures) insured against the Insured
Risks in the full current replacement cost
(b) to use reasonable endeavours to procure that the interest of
the Tenant is noted on the insurance policy and to use
reasonable endeavours to further procure that the insurers
waive any rights of subrogation against the Tenant (or any
lawful subtenant occupier or invitee) and the Landlord will
notify the Tenant if it is unable so to procure and will
duly consider the representations of the Tenant regarding
alternative insurers who may be prepared to procure that the
insurers waive any subrogation rights and/or note the
interest of the Tenant and will also permit the Tenant to
make representations to the insurers regarding the noting of
the Tenant's interest and/or waiver of rights of subrogation
(c) On request to supply the Tenant (but not more frequently
than once in any period of twelve months) with evidence of
such insurance
(d) If and whenever during the Term the Building (except as
aforesaid) is damaged or destroyed by an Insured Risk and to
the extent that payment of the insurance monies is not
refused because of any act neglect default or omission of
the Tenant or of any person deriving title under or through
the Tenant or their respective servants agents and invitees
subject to clause 5(2)(b) above the Landlord will with all
convenient speed take the necessary steps to obtain any
requisite planning permissions and consents and if they are
obtained to lay out the money received from the insurance of
the Building (except sums in respect of public liability and
employer's liability and loss of rent) towards replacing
(but not necessarily in facsimile reinstatement) the damaged
or destroyed parts (except as aforesaid) and in the case of
the Premises to the Reinstatement Specification as soon as
reasonably practicable (and the Landlord shall keep the
Tenant informed of progress of any such insurance claims and
the Landlord's proposals for compliance with this provision)
PROVIDED ALWAYS THAT the Tenant shall have no claim against
the Landlord under this clause 5(2)(c) in respect of the
manner of replacement of the interior of any Lettable Unit
other than the Premises or any alteration to the Common
Parts and PROVIDED FURTHER THAT the Landlord shall not be
liable to carry out the replacement if it is unable (having
used all reasonable endeavours) to obtain every planning
permission and consent necessary to execute the relevant
work in which event the Landlord shall be entitled to retain
all the insurance money received by it and if the Landlord
so retains the insurance money the Tenant shall be entitled
to determine this lease on not less than one month's prior
written notice
(e) In the event that the Premises have not been reinstated to
the Reinstatement Specification or essential means of access
thereto within the Building is not available in the
circumstances contemplated in sub-clause 5(2)(d) by the date
five years and eleven months following the date of such
damage or destruction by an Insured Risk the Tenant may
24
determine this lease on not less than one month's prior
written notice such notice to be served (if at all) within
one month after expiry of such five years and eleven months
period
HEAD LEASE
(3) (a) To pay the rents reserved by the Head Lease and to perform
so far as the Tenant is not liable for such performance
under the terms of this lease but so far only as to preserve
the existence of this lease the covenants and conditions on
the part of the lessee contained in the Head Lease
(b) On the request and at the reasonable expense of the Tenant
to take all reasonable steps to enforce the covenants on the
part of the Superior Landlord contained in the Head Lease
(c) To take all reasonable steps at the Tenant's reasonable
expense (to the extent possible under the Head Lease) to
obtain the consent of the Superior Landlord wherever the
Tenant makes application for any consent required under this
lease where the consent of both the Landlord and the
Superior Landlord is needed by virtue of this lease and the
Head Lease
ELECTRICITY PROVISION
(4) Subject to clause 7(3) to use all reasonable endeavours to provide
or procure the provision of electricity to the Premises to the
extent necessary to meet the requirements of the Tenant having
regard to the overall electricity services design standards for
the Building as a whole and to all relevant statutory provisions
from time to time regulating the supply and utilisation of
electricity and the terms and conditions relative thereto from
time to time imposed by the electricity provider chosen by the
Landlord
MANAGEMENT COMPANY ACCESS
(5) To allow the Management Company such rights over the Building as
it requires from time to time for the due and proper provision of
the Services
VAT INDEMNITY
(6) The provisions of schedule 8 shall apply in relation to VAT
liability on the rent first reserved and:-
(a) Whenever VAT is properly chargeable in respect of any supply
made hereunder by the Landlord to the Tenant the Landlord
shall no later than thirty days after the due date for
payment in respect of such supply issue a valid VAT invoice
or audit note (as the case may be to the Tenant)
(b) Subject to (6)(c) below all consideration payable by the
Landlord to the Tenant shall be exclusive of VAT which the
Landlord shall pay in addition on production of a valid VAT
invoice
(c) The capital sum referred to in clause 3 above shall be
inclusive of VAT save that if the Landlord is at any stage
able to recover such VAT the Landlord shall pay to the
Tenant a further amount equal to VAT on the capital sum
25
NAMING RIGHTS
(7) The Landlord shall only name the Building in accordance with its
postal address from time to time
NOTIFICATION OF NOTICES
(8) The Landlord will inform the Tenant as soon as reasonably
practicable but in any event within 5 working days of receipt of
the same of any notice served by the Superior Landlord alleging a
breach of the Head Lease which would threaten the existence of
this lease
6. PROVISION OF SERVICES
The Management Company covenants with the Tenant to use all reasonable
endeavours:-
(1) Well and substantially to repair and properly clean and decorate
the structure of the Building (including the structure of the
roofs foundations external and internal walls and columns and
structural slabs of the ceilings and floors) the external
surfaces of the Building (including the whole of the glazing
within the external walls of the Building) and the Common Parts
and (where consistent with an obligation to repair) to replace
the same
(2) To keep the Service Media designed for common or general use and
the Landlord's Services Equipment in good and substantial repair
and in clean condition and at all times in good and safe working
order
(3) To keep the lifts in the Building clean and in good and
substantial repair and condition and at all times in good and
safe working order
(4) Provide heat and air conditioning and chilled water to the
Premises (subject to the Tenant paying Outside Normal Business
Hours Charge in relation to the provision of such services
outside Normal Business Hours) such heat being sufficient to
maintain an air temperature in the Premises measured at the main
trunk connections to the floor as follows:
Air Conditioning and Heating
Design Parameters:
External Conditions:
Summer 29 degrees C DB 20 degrees C WB
Winter -4 degrees C DB 100% relative humidity
Internal Conditions Office
Accommodation -
Summer 22 degrees C DB + 1 degree C
Winter 20 degrees C DB minimum
Humidity Office Accommodation -
26
Summer 50%+/- 10%
Winter 50%+/- 10%
(5) To ensure that the Common Parts are at all times kept clean
tidy and unobstructed
(6) Subject to clause 7(3) and clause 7(6) to provide or procure
the provision of electricity to the Premises and each and
every part thereof designed to receive the same to the
extent necessary to meet the reasonable requirements of the
Tenant and other lawful occupiers of the Premises
(7) To comply with the requirements of any statute (already or
in the future to be passed) or any government department
local authority other public or competent authority or court
of competent jurisdiction relating to the Building or any
part for which any tenant or occupier of the Building is not
directly or exclusively liable
(8) To ensure that at all times (meaning for the avoidance of
doubt 24 hours a day during the Term) there are both such
security officers at and patrolling the Building as is
reasonably appropriate for premises of the same size and
nature as the Building and that the main reception to the
Building is properly and adequately manned
(9) To provide or procure the provision of:-
(a) the Services during Normal Business Hours; and
(b) such of the Services outside Normal Business Hours as
in the Management Company's reasonable discretion are
appropriate to provide to a high class office building
in the City of London outside Normal Business Hours;
and
(c) such of the Services outside Normal Business Hours as
the Tenant shall previously request (but subject to
the Tenant being responsible for the Outside Normal
Business Hours Charge)
(having regard in all cases to and in accordance with
the overall design standards for the Building as a whole and
subject to the limitations contained in Clause 7(6)) in an
efficient and economic manner and in accordance with good
estate management provided that the Management Company shall
be entitled to employ such managing agents professional
advisers contractors and other persons as it shall from time
to time reasonably think fit for the purpose of the
performance of the Services
PROVIDED THAT the Management Company shall not be liable for:-
(without prejudice to the provisions of clause 7(3)) any closure of any
of the Common Parts or interruption in the provision of the Services or
stoppage or severance affecting any of the Service Media or any
interruption to the supply of electricity to the Premises or the Common
Parts or temporary closure or diversion of any of the Common Parts or
Service Media by reason of necessary inspection repair maintenance or
replacement thereof or any part thereof or any plant machinery equipment
installations or apparatus used in connection therewith or damage
thereto or destruction thereof by any risk
27
(whether or not an Insured Risk) or by reason of electrical mechanical
or other defect or breakdown or frost or other inclement conditions or
shortage of fuel materials supplies or labour or whole or partial
failure or stoppage of any mains supply due to any circumstances beyond
the control of the Management Company PROVIDED ALWAYS that the
Management Company shall use all reasonable endeavours to minimise the
adverse effects of any such circumstances and to remedy any such
interruption closure or diversion as soon as reasonably practicable
PROVIDED FURTHER that in the event of the Landlord or the Management
Company being unable to provide air conditioning or electricity to the
Premises in such circumstances the Tenant shall be entitled to carry out
(the Landlord and Management Company affording the Tenant reasonable
access to do so) all necessary remedial works to such electricity or air
conditioning PROVIDED THAT:
(a) the Tenant shall carry out such works in a good and workmanlike
manner and make good all damage caused causing as little
inconvenience to the Landlord Management Company and other
tenants as reasonably practicable
(b) the Landlord or the Management Company shall be responsible for
the costs of the Tenant in carrying out such remedial works when
such works are being carried out as a consequence of any breach
of the Landlord's or Management Company's covenants hereunder
7. PROVIDED ALWAYS AND IT IS HEREBY AGREED AND DECLARED THAT:-
FORFEITURE AND RE-ENTRY
(1) Without prejudice to any other remedies and powers contained in
this lease or otherwise available to the Landlord if
(a) the whole or part of the rents shall be unpaid for
twenty-one days after becoming payable (whether or not
formally demanded) or
(b) any of the Tenant's covenants in this lease are not
performed or observed in the manner and at the times herein
specified or
(c) the guarantee granted by the Guarantor or any other
guarantor of the Tenant's obligations is or becomes
unenforceable (in whole or in part) for any reason
whatsoever and no suitable alternative security is provided
to the Landlord within a period of one month or
if the Tenant (or if more than one person any one of them):-
(d) being a company enters into liquidation whether voluntarily
(except for reconstruction or amalgamation of a solvent
company) or compulsorily or has a provisional liquidator or
a receiver (including an administrative receiver) appointed
or its directors pass a resolution to petition for an
administration order or one or more of them swears an
affidavit in support of such a petition or is the subject of
an administration order or a petition for one or of a
voluntary arrangement or a proposal for one under Part I
Insolvency Act 1986
(e) being a company incorporated outside the United Kingdom is
the subject of any proceedings or event analogous to those
referred to in clause 7(1)(d) in the country of its
incorporation
28
(f) being an individual is the subject of a bankruptcy petition
or bankruptcy order or of any application or order or
appointment under section 253 or section 273 or section 286
Insolvency Act 1986 or otherwise becomes bankrupt or
insolvent or dies
the Landlord may at any time thereafter (and notwithstanding
the waiver of any previous right of re-entry) re-enter the
Premises without prejudice to the Tenant's right to relief against
forfeiture whereupon this lease shall absolutely determine but
without prejudice to either party's right of action against the
other in respect of any antecedent breach of the covenants in this
lease
LETTING SCHEME USE AND EASEMENTS
(2) No letting or building scheme exists or shall be created in
relation to the Building and (subject only to those easements
expressly granted by this lease) neither the Tenant nor the
Premises shall be entitled to any easement or quasi-easement
whatsoever and nothing herein contained or implied shall give the
Tenant the benefit of or the right to enforce or to have enforced
or to prevent the release or modification of any right easement
covenant condition or stipulation enjoyed or entered into by any
tenant of the Landlord in respect of property not demised by this
lease or prevent or restrict the development or use of the
remainder of the Building or any other land
COMMON PARTS AND SERVICE MEDIA
(3) Subject always to the rights of the local authority the relevant
supply authorities and any other competent authority the Common
Parts and the Service Media are at all times subject to the
exclusive control and management of the Landlord who may from time
to time (if it shall be necessary or reasonable to do so for the
benefit of the Building or otherwise in keeping with the
principles of good estate management) alter divert substitute stop
up or remove any of them (leaving available for use by the Tenant
reasonable and sufficient means of access to and egress from and
servicing for the Premises)
SERVICE OF NOTICES
(4) (a) In addition to any other mode of service any notices to be
served under this lease shall be validly served if served in
accordance with section 196 Law of Property Act 1925 as
amended by the Recorded Delivery Service Act 1962 or (in the
case of any notice to be served on the Tenant) by sending it
to the Tenant at the Premises PROVIDED THAT whilst the
Tenant hereunder is Donaldson Lufkin & Jenrette
International Limited such notice shall also be served on
the offices for the time being of SJ Berwin & Co (attention:
Edward Page) or such other firm of solicitors notified in
writing to the Landlord and 277 Park Avenue New York New
York 10172
(b) If the Tenant or any guarantor comprises more than one
person it shall be sufficient for all purposes if notice is
served on one of them but a notice duly served on the Tenant
will not need to be served on any guarantor
RENT CESSER
(5) If and whenever during the Term:-
(a) the Premises (other than the Tenant's plant and equipment
and tenant's fixtures) or the means of access to the
Premises within the Building are damaged or destroyed by any
of the Insured Risks so that the Premises are incapable of
beneficial occupation and use and
(b) subject to clause 5(2)(b)the insurance of the Building or
the payment of any insurance money has not been vitiated by
the act neglect default or omission of the Tenant or of any
person deriving title under or through the Tenant their
respective servants agents and invitees
the rent first reserved by this lease and the Service Charge
or a fair proportion of them according to the nature and extent of
the damage sustained shall be suspended and cease to be payable
from the date of destruction or damage until whichever is the
earlier of the date on which the Premises are reinstated to the
Reinstatement Specification and if applicable the essential means
of access within the Building are available and the date of expiry
of the period for which insurance of loss of rent is effected and
any dispute about such suspension shall be referred to the award
of a single arbitrator to be appointed in default of agreement on
the application of the Landlord or the Tenant to the President for
the time being of The Royal Institution of Chartered Surveyors in
accordance with the Arbitration Acts 1950 and 1979
LANDLORD'S LIABILITY
(6) The Landlord shall not be liable for (without prejudice to the
provisions of clause 7(3)) any closure of any of the Common Parts
or stoppage or severance affecting any of the Service Media or any
interruption to the supply of electricity to the Premises or
temporary closure or diversion of any of the Common Parts or
Service Media by reason of necessary inspection repair maintenance
or replacement thereof or any part thereof or any plant machinery
equipment installations or apparatus used in connection therewith
or damage thereto or destruction thereof by any risk (whether or
not an Insured Risk) or by reason of electrical mechanical or
other defect or breakdown or frost or other inclement conditions
or shortage of fuel materials supplies or labour or whole or
partial failure or stoppage of any mains supply due to any
circumstances beyond the control of the Landlord PROVIDED ALWAYS
that the Landlord shall use all reasonable endeavours to minimise
the adverse effects of any such circumstances and to remedy any
such interruption closure or diversion as soon as reasonably
practicable PROVIDED FURTHER that in the event of the Landlord or
the Management Company being unable to provide air conditioning or
electricity to the Premises in such circumstances the Tenant shall
be entitled to carry out (the Landlord and Management Company
affording the Tenant reasonable access to do so) all necessary
remedial works to such electricity or air conditioning PROVIDED
THAT:
(a) the Tenant shall carry out such works in a good and workmanlike
manner and make good all damage caused causing as little
inconvenience to the Landlord Management Company and other tenants
as reasonably practicable)
30
(b) the Landlord or the Management Company shall be responsible for
the costs of the Tenant in carrying out such remedial works when
such works are being carried out as a consequence of any breach of
the Landlords or Management Company's covenants hereunder
ARBITRATION FEES
(7) The fees of any arbitrator incurred in any arbitration proceedings
arising out of this lease may be paid to the arbitrator by the
Landlord or by the Tenant notwithstanding any direction or prior
agreement as to liability for payment and any sums so paid for
which the party who pays them initially is not ultimately liable
shall be repayable on demand by the party who is liable for them
RENT REVIEW MEMORANDUM
(8) Forthwith after every agreement or determination of any increase
in the amount of the rent reserved and made payable by virtue of
schedule 4 a memorandum recording the increase shall be attached
to this lease and to the counterpart and such memorandum shall be
signed by or on behalf of the Landlord and the Tenant respectively
NO WARRANTY AS TO USE
(9) Nothing contained in this lease shall constitute or be deemed to
constitute a warranty by the Landlord that the Premises are
authorised under Planning Law to be used or are otherwise fit for
any specific purpose
DISPUTES
(10) (a) Any dispute between the Tenant and any other tenant or
occupier of any part of the Building relating to any
easement or right affecting the Building or any part of it
shall (unless the Landlord shall by notice to the parties
concerned renounce its power to determine it) be referred to
the Landlord whose decision acting reasonably (acting in the
capacity of an expert) shall be binding upon the parties to
the dispute but the Landlord shall give written reasons for
his decision
(b) Where any issue (other than one relating to a rent review)
arising out of or under or relating to the Head Lease which
also affects or relates to the provisions of this lease is
to be determined as provided in the Head Lease the
determination of such issue pursuant to the provisions of
the Head Lease shall be binding on the Tenant as well as the
Landlord for the purposes both of the Head Lease and this
lease
COMPENSATION
(11) Except where any Enactment prohibits the right to compensation
being reduced or excluded by agreement, neither the Tenant nor any
occupier of the Premises shall be entitled on quitting them to
claim from the Landlord any compensation under the Landlord and
Tenant Act 1954
31
RATEABLE VALUE APPEALS
(12) (a) If the Landlord or the Tenant intends to make a proposal to
alter the entry for the Premises in the local non-domestic
rating list it shall notify the other party of its
intention and shall incorporate in the proposal such proper
and reasonable representations as may be made by or on
behalf of that party
(b) The Tenant shall not agree the level of rates liability
attributable to the Premises following the date hereof
without the Landlord's consent (such consent not to be
unreasonably withheld or delayed) PROVIDED that for the
avoidance of doubt the Landlord shall not be entitled to
refuse its consent to any level of rates which the Tenant
has negotiated with the appropriate rating authority which
is lower than any level of rates negotiated by or on behalf
of the Landlord in respect of the Building on a pro rata
basis
NO WARRANTY AS TO SECURITY
(13) Nothing contained in this lease (and no exercise of any of the
Landlord's powers under this lease) shall constitute or be deemed
to constitute a warranty by the Landlord that the Premises shall
be kept secure or that any security service to the Common Parts
shall be effective
JURISDICTION
(14) This lease shall be governed by and construed in all respects in
accordance with the law of England and for the benefit of the
Landlord the English courts shall have exclusive jurisdiction in
relation to disputes arising under or connected with this lease
and the Tenant agrees that any process may be served on it by
leaving a copy of the relevant document at the Premises provided
however that the Landlord shall retain the right at its sole
election to sue the Tenant elsewhere including in the courts of
the Tenant's domicile
OVERRIDING LEASE
(15) If at any time during the Term the Landlord shall grant a tenancy
of the reversion immediately expectant on the determination of
this lease whether pursuant to Section 19 Landlord and Tenant
(Covenants) Act 1995 or otherwise any covenant on the part of the
Tenant to obtain the consent of the Landlord under this lease to
any dealing shall be deemed to include a further covenant also to
obtain the consent of the lessor under such tenancy to such
dealing
8. LANDLORD'S GUARANTOR
(1) The Landlord's Guarantor at the request of the Landlord and in
consideration of the Tenant agreeing to take this lease covenants
and agrees with the Tenant that all of the Landlord's obligations
contained in this lease will be performed and observed in the
manner and at the times herein specified and that if there is
default in performing and observing any of the Landlord's
obligations (notwithstanding any time or indulgence granted by
the Tenant to the Landlord or compromise, neglect or forbearance
on the part of the Tenant in enforcing the observance of the
Landlord's obligations in this lease) the Landlord's Guarantor
32
will observe and perform (or procure the performance and
observance of) the obligations in respect of which the Landlord
shall be in default
(2) The Landlord's Guarantor at the request of the Management Company
and in consideration of the Tenant agreeing to pay the Service
Charge covenants and agrees with the Tenant that all of the
Management Company's obligations contained in this lease will be
performed and observed in the manner and at the times herein
specified and that if there is default in performing and observing
any of the Management Company's obligations (notwithstanding any
time or indulgence granted by the Tenant to the Management Company
or compromise, neglect or forbearance on the part of the Tenant in
enforcing the observance of the Management Company's obligations
in this lease) the Landlord's Guarantor will observe and perform
(or procure the performance and observance of) the obligations in
respect of which the Management Company shall be in default
9. TENANT'S OPTION TO DETERMINE
(1) The Tenant may (subject to compliance with the provisions of this
clause) determine this lease as at 24th October 2008
(2) If the Tenant wishes so to determine the Tenant shall give to the
Landlord the Termination Notice such notice to expire on 24th
October 2008
(3) If the Tenant duly serves the Termination Notice it shall procure
that vacant possession of the Premises will be available on 24th
October free of occupation by and of any estate or interest rested
in the Tenant or any third party and this lease shall not
determine as a result of any notice served by the Tenant if the
Tenant is in material breach of any of its covenant to pay the
rents and Interim Sum contained in this lease (including those
contained in this sub-clause) as at 24th October 2008 except to
the extent if at all the Landlord in its absolute discretion
waives compliance with any of them
10. GUARANTEE AND GUARANTOR'S INDEMNITY
The Guarantor at the request of the Tenant and in consideration of the
grant of this lease covenants and agrees with the Landlord and during
the Term and any period of holding over continuation or extension
thereof whether by an Enactment common law or otherwise (subject to
clause 4(15)):-
(1) The rents reserved by this lease (whether or not ascertained as
to amount) will be duly paid and that all the Tenant's
obligations contained in it will be performed and observed in the
manner and at the times herein specified and that if there is any
default in paying the rents or in performing and observing the
Tenant's obligations (notwithstanding any time or indulgence
granted by the Landlord to the Tenant or compromise neglect or
forbearance on the part of the Landlord in enforcing the
observance and performance of the Tenant's obligations in this
lease or any refusal by the Landlord to accept rents tendered by
or on behalf of the Tenant) the Guarantor will observe and
perform the obligations in respect of which the Tenant shall be
in default and will on demand and on a full indemnity basis pay
to the Landlord an amount equivalent to the rents or other
amounts not paid and/or any loss damage costs charges expenses or
any other liability incurred or suffered by the Landlord as a
result of the default (and in the event of non-payment shall pay
interest at the Interest Rate from the date of demand to the
33
Guarantor until the date of payment) and will otherwise
indemnify and hold harmless the Landlord against all actions
claims costs damages demands expenses losses and proceedings
arising from or incurred by the Landlord as a result of such
non-performance or non-observance
(2) If any liquidator or other person having power to do so disclaims
this lease or if it shall be forfeited or if the Tenant ceases to
exist and if the Landlord by written notice served within three
months after the date of disclaimer or forfeiture or the Landlord
having actual knowledge of the cesser of existence of the Tenant
(each a "Trigger Event") requires the Guarantor to accept a lease
of the Premises for a term computed from the date of the Trigger
Event to the date on which the Term would have expired by
effluxion of time and at the same rents and subject to the same
covenants stipulations conditions and provisions (except that the
Guarantor shall not be required to procure that any other person
is made party to that lease as guarantor) as are reserved by and
contained in this lease immediately before the Trigger Event and
with coincidental Review Dates (the said new lease and the rights
and liabilities thereunder to take effect as from the date of such
Trigger Event) the Guarantor shall forthwith accept such lease
accordingly and execute and deliver to the Landlord a counterpart
of it and indemnify the Landlord upon demand against the costs
incurred on the grant of the new lease
(3) The liability of the Guarantor hereunder shall not be released
reduced affected or prejudiced by reason of:-
(a) any variation or waiver of or addition to the terms of this
lease or any of them agreed between the Landlord and the
Tenant or
(b) the surrender by the Tenant of part of the Premises (in
which event the liability of the Guarantor shall continue in
relation to the Tenant's obligations in respect of the part
of the Premises not so surrendered) or
(c) any legal limitation immunity disability incapacity
occurrence of insolvency or the winding-up of the Tenant or
(d) (without limitation to the foregoing) of any other act or
thing act or thing by which (but for this provision) the
Guarantor would have been discharged or released (in each
case in whole or in part) from liability under this
guarantee and indemnity
or any combination of any two or more of such matters
(4) If a Trigger Event occurs and for any reason the Landlord does not
require the Guarantor to accept a new lease of the Premises in
accordance with clause 8(2) the Guarantor shall pay to the
Landlord on demand (in addition to any other loss damage costs
charges expenses or other liability which the Guarantor may be
required to make good hereunder and without prejudice to any other
rights of the Landlord) an amount equal to the rents which would
have been payable hereunder but for such Trigger Event (so far as
such rents do not otherwise continue to be payable) for the period
commencing on the date of such Trigger Event and ending on
whichever is the earlier of the date one year after the date of
such Trigger Event and the date (if any) upon which rent is first
payable in respect of the whole of the Premises on a reletting
thereof
34
(5) Without prejudice to the rights of the Landlord against the Tenant
the Guarantor shall be a principal obligor in respect of its
obligations under this clause and not merely a surety and
accordingly the Guarantor shall not be discharged nor shall its
liability hereunder be affected by any act or thing or means
whatsoever by which its said liability would not have been
discharged if it had been a primary debtor
(6) The Guarantor shall pay all reasonable charges (including legal
and other costs on a full indemnity basis) incurred by the
Landlord in relation to the Landlord's enforcement of this
guarantee and indemnity against the Guarantor or for enforcing
payment by the Guarantor of amounts indemnified by it hereunder
(7) The Landlord may at its option enforce the terms of this guarantee
and indemnity against the Guarantor without having first enforced
the covenants and terms of this lease against the Tenant and also
without first having recourse to any other rights or security
which the Landlord may have obtained in relation to this lease
(8) The Guarantor shall not be entitled to participate in any security
held by the Landlord in respect of the obligation of the Tenant
under this lease or to any right of subrogation in respect of any
such security until all the obligations owed to the Landlord by
the Tenant and the Guarantor hereunder have been fully and
unconditionally fulfilled and discharged
(9) The Guarantor shall not claim in any liquidation bankruptcy
composition or scheme of arrangement in respect of the Tenant in
competition with the Landlord and if and to the extent that it
receives the same shall remit to (and until remission shall hold
in trust for) the Landlord all and any monies received from any
liquidator trustee receiver or out of any composition or
arrangement or from any supervisor thereof until all the
obligations of the Tenant and the Guarantor hereunder owed to the
Landlord have been fully and unconditionally fulfilled and
discharged
(10) This guarantee and indemnity shall enure for the benefit of the
Landlord's successors in title under this lease without the
necessity for any assignment thereof
(11) While Donaldson, Lufkin & Jenrette International Limited remains
the Tenant this guarantee and indemnity shall only apply if and
for so long as the total shareholders funds and reserves of
Donaldson, Lufkin & Jenrette International Limited are or fall
below the value of Fifty million pounds (pounds sterling
50,000,000) AND Donaldson, Lufkin & Jenrette International Limited
and Donaldson, Lufkin & Jenrette Inc. shall notify the Landlord at
the beginning of each period in which this guarantee and indemnity
applies and again when it ceases to apply AND for the avoidance of
doubt this guarantee (subject to compliance by the Tenant with
clause 4(15)) shall automatically cease on any lawful assignment
of this lease (but without prejudice to either party's rights
against the other in respect of any antecedent breaches of this
lease) unless in the circumstances contemplated by clause
4(15)(g)(ii)(b) it is reasonable for Donaldson Lufkin & Jenrette
Inc. to remain the guarantor hereunder of the liabilities of
Donaldson, Lufkin & Jenrette International Limited PROVIDED
FURTHER that Donaldson, Lufkin & Jenrette Inc. shall in such
circumstances automatically be released on a second assignment of
this lease
35
11. STAMP DUTY CERTIFICATE
It is hereby certified that there is no agreement for lease to which
this lease gives effect
IN WITNESS whereof this Deed has been executed by the parties hereto and is
intended to be and is hereby delivered on the date first above written
36
SCHEDULE 1
(THE PREMISES)
ALL THOSE office premises situate on the twenty-third floor and being part of
the Building which are shown on the Plans and thereon verged red for
identification purposes only ALL which premises include:-
(a) the plaster linings and other interior coverings and facing materials of
all walls and of any columns within or bounding the said premises
(b) the screed the raised floor the fixed and unfixed floor coverings and
all materials lying between the upper surface of the structural floor
slab and the raised floor surface
(c) the ceilings including all materials forming part of them lying and the
void space (if any) above such ceilings but below the lower surface of
the structural ceiling slab
(d) all non-load bearing walls lying within the said premises
(e) all plant and other apparatus and conducting media which are designed to
serve the said premises exclusively including any which the Landlord may
permit under clause 4(14) and whose operation does not have any impact
on the central building systems
(f) the following items supplied and fitted by the Landlord:-
(i) venetian horizontal perforated blinds on the inside of the
external windows of the Premises
(ii) electricity check meter
but exclude:-
(i) all Service Media and Landlord's Services Equipment and
(ii) the load bearing structure of the Building including the load bearing
structure of the roofs foundations external and internal walls and
columns and the structural slabs of the ceilings and floors and
(iii) the external surfaces of the Building and the whole of the window
glazing and window frames and other fenestration units constructed in
the external walls and in the other boundaries of the said premises
SCHEDULE 2
(EASEMENTS AND RIGHTS GRANTED)
1. The right in connection with the Permitted Use subject to the provisions
of clause 7(3) and subject to compliance with all reasonable rules and
regulations in connection with the exercise of such right as may be
prescribed from time to time by the Landlord:-
(1) for the Tenant its employees servants and duly authorised agents
invitees and visitors for the purpose only of ingress and egress
to and from the Premises to use the Common Parts and to use all
means of escape but only when needed in an emergency and
(2) to use the Service Media
37
2. The right of support shelter and protection for the Premises from any
adjoining or neighbouring parts of the Building as enjoyed by the
Premises at the date of this lease
3. The right to have displayed the name or trading style of the Tenant and
any authorised sub-tenants or permitted occupiers (subject to a maximum
of four names at any particular time) on the signboard in the entrance
lobby of the Building provided by the Landlord pursuant to paragraph 14
of Part I of schedule 6 and the right to install a sign displaying the
name of the Tenant at the entrance to the Premises the precise location
size and style of such sign to be subject to the approval of the
Landlord (such approval not to be unreasonably withheld or delayed)
4. The right to install a supplementary air conditioning system and UPS
within the 14th floor plant area in the Building in a manner and in a
location to be approved by the Landlord such approval not to be
unreasonably withheld or delayed (in accordance with the provisions of
clause 4(12)) and a right of access to such 14th floor plant area at all
reasonable times on reasonable prior notice (save in the case of
emergency) for repair and maintenance and PROVIDED that on determination
of the Term the Tenant shall remove any such installation and reinstate
the plant room area to the reasonable satisfaction of the Landlord
(making good all damage caused in such removal)
5. The right to use and to have reasonable access for repair and
maintenance (on reasonable prior written notice to the Landlord) those
works or installations within or on the Building (but outside the
Premises) for which consent has been given pursuant to the Agreement for
Initial Alterations
6. The exclusive right to use the lavatories on the same floor as the
Premises subject to the Tenant being responsible for all elements of
Service Cost relating to such toilets should any other tenant of
accommodation in the Building object to meeting any proportion of
Service Cost in relation to such facilities (on the basis of such
exclusive use)
SCHEDULE 3
(EXCEPTIONS AND RESERVATIONS)
1. The right to build alter or extend (whether vertically or laterally) any
building notwithstanding that the access of light and air or either of
them to the Premises and the lights windows and openings thereof may be
affected
2. The right at reasonable times on reasonable prior written notice (except
in an emergency where no notice need be given) to enter upon the
Premises as often as may be necessary for the purpose of complying with
the covenants of the Head Lease for all the purposes for which the
Tenant covenants in this lease to permit entry and for all purposes in
connection with the carrying Out of the Services and for the purposes of
complying with any statutory requirements
3. The right to use and to construct inspect maintain repair divert and
otherwise alter stop up and relay and to make connections to any Service
Media in on or under the Premises at any time during the Term for the
benefit of any other part of the Building or any adjacent or
neighbouring land
4. The right to erect and maintain scaffolding on or against any part of
the Building so long as reasonable and sufficient means of access to and
egress from and servicing the Premises are maintained
38
5. All rights of light air and other easements and rights (but without
prejudice to those expressly granted by this lease) enjoyed by the
Premises from or over any other part or parts of the Building or any
adjacent or neighbouring land
6. The right of support protection and shelter for the benefit of other
parts of the Building from the Premises
7. The right for one or more members of any security staff employed by the
Landlord or its agents at any time or times on reasonable prior notice
(save in the case of emergency where no notice is required) to enter the
Premises if it shall be considered necessary or desirable so to do in
connection with the security of the Building
8. The right for the tenant or occupier of any other part of the Building
authorised by the Landlord having first given reasonable written notice
to the Tenant at reasonable times in the daytime and at any time and
without notice in case of emergency to enter the Premises for the
purpose of repairing that other part of the Building making good any
damage so caused to the reasonable satisfaction of the Tenant
9. The rights reserved to the Superior Landlord (by covenant or by express
reservation) in the Head Lease
PROVIDED ALWAYS THAT if the Landlord or its employees or the persons
authorised by the Landlord exercises any of the rights by carrying out work on
the Premises it shall cause as little inconvenience as possible and as soon as
reasonably practicable make good any damage caused to them unless the right
has been exercised because of some breach by the Tenant or by any person
claiming through it
SCHEDULE 4
(THE FIRST RESERVED RENT AND THE REVIEW THEREOF)
1. In this schedule the following expressions have the respective specified
meanings:-
(1) "Current Rent" means the amount of the yearly rent first reserved
by this lease payable immediately before the relevant Review Date
(2) "Review Rent" means the yearly market rent which might reasonably
be expected to be payable following the expiry of any period at
the beginning of the term which might be negotiated in the open
market for the purposes of fitting out during which no rent or a
concessionary rent is payable or following the payment of any
capital sum or fitting out contribution which might be negotiated
in the open market for the purposes of fitting out (and on the
assumption that the lessee has had the benefit of such rent free
or concessionary rent period or capital sum or fitting out
contribution and has used the same fully to fit out the Premises
for the Permitted Use to the lessee's particular requirements) if
the Premises had been let in the open market by a willing lessor
to a willing lessee with vacant possession on the relevant Review
Date without fine or premium for a term of ten years computed from
the relevant Review Date taking into account the lessee's right
at the expiration of the term to be granted a new tenancy under
Part II Landlord and Tenant Act 1954 and otherwise upon the
provisions (save as to the amount of the rent first reserved by
this lease but including the provisions for rent review at
five-yearly intervals) contained in this lease and on the
assumption if not a fact that the said provisions have been fully
complied with and on the further assumptions that:-
39
(a) the Permitted Use and the Premises comply with Planning Law
and every other Enactment free from any onerous condition
restriction and limitation and that the lessee may lawfully
implement and carry on the Permitted Use
(b) no work has been carried out to the Premises which has
diminished their rental value
(c) in case the Building or any part of it has been destroyed or
damaged it has been fully restored
(d) the Premises have been fitted out to no less standard than
that set out in the Reinstatement Specification
but disregarding any effect on rent of:-
(i) the fact that the Tenant or any underlessee or other
permitted occupier or their respective predecessors in title
has been or is in occupation of the Premises
(ii) any goodwill attached to the Premises by the carrying on in
them of the business of the Tenant or any underlessee or
their respective predecessors in title or other permitted
occupier
(iii) (without prejudice to paragraphs 1(2)(b) and 1(2)(c) of this
schedule) any works carried out to the Premises during the
Term by the Tenant or any permitted underlessee in either
case at its own expense in pursuance of a licence granted by
the Landlord where required and otherwise than in pursuance
of any obligation to the Landlord
(iv) the works carried out to the Premises by the Tenant or
carried out by the Landlord at the expense of the Tenant
pursuant to the Agreement for Initial Alterations
(3) "Review Surveyor" means an independent chartered surveyor
appointed pursuant to paragraph 3(1) of this schedule and if to
be nominated by or on behalf of the President for the time being
of the Royal Institution of Chartered Surveyors the said
President to be requested to nominate an independent chartered
surveyor having not less than ten years practice in the City of
London next before the date of his appointment and recent
substantial experience in the letting and valuation of office
premises of a similar character and quality to those of the
Premises and who is a partner or director of a leading firm or
company of surveyors having specialist market and valuation
knowledge of such premises
2. The yearly rent first reserved and payable from each Review Date until
the next following Review Date or (in the case of the period commencing
on the last Review Date during the Term) until the expiry of the Term
shall be the higher of:-
(1) the Current Rent (ignoring for this purpose any rent cesser
pursuant to clause 7(5)) and
(2) the Review Rent
40
3. If the Landlord and the Tenant shall not have agreed the Review Rent by
the date three months before the relevant Review Date it shall (without
prejudice to the ability of the Landlord and the Tenant to agree it at
any time) be assessed as follows:-
(1) the Review Surveyor shall (in the case of agreement about his
appointment) be forthwith appointed by the Landlord or the Tenant
to assess the Review Rent or (in the absence of agreement at any
time about his appointment) be nominated to assess the Review
Rent by or on behalf of the President for the time being of The
Royal Institution of Chartered Surveyors on the application of
the Landlord or the Tenant
(2) Unless the Landlord and the Tenant agree that the Review Surveyor
shall act as an expert (which after the appointment has been made
they may not do save with the consent also of the Review
Surveyor) he shall act as an arbitrator and the arbitration shall
be conducted in accordance with the Arbitration Acts 1950 and
1979
(3) If the Review Surveyor is appointed as an expert he shall be
required to give notice to the Landlord and the Tenant inviting
each of them to submit to him within such time limits as he shall
stipulate a proposal for the Review Rent supported (if so desired
by the Landlord or the Tenant) by any or all of:-
(i) a statement of reasons
(ii) a professional rental valuation and (separately and later)
(iii) submissions in respect of each other's statement of reasons
and valuation
but he shall not be bound thereby and shall make the
determination in accordance with his own judgment (including any
determination concerning any party's liability for the costs of
the reference to him) save in respect of points of law
(4) If the Review Surveyor whether appointed as arbitrator or expert
refuses to act or is or becomes incapable of acting or dies the
Landlord or the Tenant may apply to the President for the further
appointment of another Review Surveyor
4. If the Review Rent has not been agreed or assessed by the relevant
Review Date the Tenant shall:-
(1) continue to pay the Current Rent on account and
(2) pay the Landlord within seven days after the agreement or
assessment of the Review Rent the amount (if any) by which the
Review Rent for the period commencing on the relevant Review Date
and ending on the quarter day following the date of payment
exceeds the Current Rent paid on account for the same period plus
interest at three per cent below the Interest Rate for each
installment of rent due on and after the relevant Review Date on
the difference between what would have been paid on that rent day
had the Review Rent been fixed and the amount paid on account
(the interest being payable from the date on which the
installment was due up to the date of payment of the shortfall)
5. If any Enactment restricts the right to review rent or to recover an
increase in rent otherwise payable then when the restriction is released
the Landlord may at any time within six months after the date of release
give to the Tenant not less than one month's
41
notice requiring an additional rent review as at the next following
quarter day which shall for the purposes of this lease be a Review Date
SCHEDULE 5
(THE SERVICE CHARGE)
1. In this schedule:
"ACCOUNTING PERIOD" means the period from and including 1st January to
and including 31st December in any year or such other period of twelve
months as the Management Company shall reasonably determine from time to
time
"EXPERT" means a chartered surveyor experienced in the administration
and apportionment of service charges for buildings similar to the
Building as agreed upon by the Management Company and the Tenant or on
failure to agree appointed at the request of either party by the
President Provided that where an Expert has previously been agreed or
appointed in relation to any matter in connection with the Service Cost
or the allocation of the Service Cost between the tenants of the
Building (whether or not pursuant to the terms of this Underlease) the
Management Company or the Tenant shall be entitled if reasonable to
require that the same Expert be appointed
"INTERIM SUM" means a fair and reasonable yearly sum assessed by the
Management Company acting reasonably on account of the Service Charge
for each Accounting Period being a fair and reasonable estimate of the
Service Charge payable by the Tenant in respect of that Accounting
Period
"RESERVE" means the total of the amounts received by the Management
Company in respect of the matters referred to in paragraph 2(B) of this
schedule
"SERVICE CHARGE" means the proportion or proportions of the Service Cost
attributable to the Premises determined in accordance with the
provisions of this schedule payable from the date hereof
"SERVICE CHARGE CERTIFICATE" means a certificate showing the Service
Cost and Service Charge for each Accounting Period served pursuant to
paragraph 5 of this schedule and prepared by the Management Company's
surveyor or auditor
"SERVICE COST" means the total sum calculated in accordance with
paragraph 2 of this schedule
2. The Service Cost shall be the total of:-
(A) the reasonable cost properly incurred by the Management Company in
any Accounting Period in carrying out or procuring the carrying
out of the Services and providing each item of the Services
including (without prejudice to the generality of the foregoing)
the costs and expenses set out in Part II of schedule 6 (insofar
as the same are reasonable and properly incurred) and any other
reasonable costs and expenses properly incurred by the Management
Company or with the Management Company's authority in connection
with the Services but excluding for the avoidance of doubt
(i) any costs attributable to the provision of any of the
Services outside Normal Business Hours at the specific
request of the Tenant (which shall
42
be charged direct to the Tenant) or of any other
tenant or tenants of the Building and
(ii) any Value Added Tax which the Management Company may incur
of and incidental to the provision of the Services and which
is recoverable as input tax by the Management Company
(iii) any cost or expense incurred in making good any damage
caused by any of the Insured Risks
(B) an amount (to be revised annually by the Management Company at its
reasonable discretion) to be charged in any Accounting Period as a
contribution to the establishment and maintenance of a reserve
towards the estimated cost to the Management Company of the
provision of the Services such amount to be ascertained on the
assumption (inter alia) that the cost of replacement of items of
plant machinery equipment and other capital items is calculated on
such life expectancy of the said items as the Management Company
may from time to time reasonably determine to the intent that a
fund be accumulated sufficient to cover the cost of replacement of
the said items by the end of their anticipated life
PROVIDED THAT nothing herein contained shall oblige the Management
Company to maintain the Reserve or a reserve sufficient to cover the
whole of the cost of replacement of any plant machinery equipment or
other capital items and provided further that any expenditure on any
items in respect of which any sums shall have been included in the
Reserve during an Accounting Year shall at the Management Company's
reasonable discretion as to the amount thereof if any be met out of the
Reserve AND PROVIDED THAT in respect of any costs or expenses not
incurred exclusively in connection with the provision or carrying out of
the Services a fair proportion only of such costs and expenses shall be
included in the Service Cost
3. (A) The Service Charge payable by the Tenant for any Accounting Period
shall be a fair proportion of the Service Cost attributable to the
Premises from time to time as properly determined by the
Management Company (and so in proportion for any Accounting Period
not falling wholly within the Term the Service Cost in any such
case being deemed to accrue on a day to day basis for the purpose
of apportionment)
(B) If at any time and from time to time during the Term the method or
basis of calculating or ascertaining the cost of any item of the
Services shall alter or the basis of calculating or ascertaining
the Service Cost in relation to any item of the Services shall
change and as a result it is reasonable that there be an
alteration or variation of the calculation of the Service Charge
in order to achieve a fairer and better apportionment of the
Service Cost amongst the tenants of the Building then and in every
such case the Management Company shall vary and amend the Service
Charge and make appropriate adjustments thereto provided always
that in the event of any dispute between the Management Company
and the Tenant and the other tenants of the Building or any of
them the same shall be referred to the Expert for determination
(the Expert to act as an expert and not as an arbitrator) whose
decision shall save in the case of manifest error be binding on
the parties (including his decisions as to the responsibility for
his costs)
(C) The fair proportion to be determined by the Management Company in
paragraph 3(A) above shall be determined on the basis that all
accommodation within the
43
Building let or occupied or designed contracted or adapted for
letting or occupation (other than management accommodation) is
fully let on terms which include service charge provisions
consistent with the service charge provisions contained in this
lease (save where otherwise specified herein) and such proportion
shall not be increased or altered by reason of the fact that at
any time any part of such accommodation may be vacant or that any
tenant or other occupier of any other part of the Building may
default in payment of its due proportion of the Service Cost
4. (A) The Tenant shall pay to the Management Company the Interim Sum
without deduction by equal quarterly instalments in advance on the
usual quarter days unless the Management Company shall reasonably
anticipate that amounts to be incurred during the year immediately
next following are anticipated as being incurred in accordance
with a programme of non equal expenditure in which event the
Management Company shall serve notice to such effect upon the
Tenant and shall thereupon be entitled to require amounts of the
Interim Sum to be paid by advance quarterly instalments of unequal
amounts reasonably stipulated by the Management Company
(B) The Management Company shall be entitled to require as part of the
Interim Sum payments in advance on account of the cost of the
consumption of and supply charges in respect of electricity
consumed within the Premises (save for any amounts which are
invoiced directly by London Electricity plc to the Tenant) such
sums not to exceed a fair and proper estimate of amounts
reasonably anticipated by the Management Company as falling due
within the next quarter
(C) If the Tenant consistently requests the provision of any of the
Services outside Normal Business Hours the Management Company
shall be entitled in addition to require the Tenant to pay along
with payments of the Interim Sum a fair and proper estimate of
amounts likely to be payable by the Tenant in the next quarter on
account of such Services in accordance with the terms of this
lease
(D) The Interim Sum for the Accounting Period ending 31st December
1996 shall be pounds sterling 74,000
(E) Either before or as soon as practicable after the commencement of
every Accounting Period the Management Company shall serve or
cause to be served on the Tenant written notice of the Interim Sum
for the relevant Accounting Period Provided that without prejudice
to the provisions of paragraphs 6 and 7 of this schedule if the
written notice aforesaid shall be served after the first occurring
quarter day in the relevant Accounting Period the Tenant shall
until service of the written notice aforesaid make payments on
account of the Interim Sum for the relevant Accounting Period on
the days and in the manner provided by sub-paragraph (A) of this
paragraph of this schedule at an annual rate equal to the Interim
Sum for the immediately preceding Accounting Period
5. (A) As soon as practicable after the expiry of every Accounting Period
(and in any event within 4 months after such expiry) the
Management Company shall serve or cause to be served a Service
Charge Certificate on the Tenant for the relevant Accounting
Period
44
(B) A Service Charge Certificate shall contain a summary of the
Service Cost in respect of the Accounting Period to which it
relates and the relevant calculations showing the Service Charge
(C) The Tenant may request further details of the breakdown of the
expenditure under any particular item or items shown in a Service
Charge Certificate by giving notice thereof in writing to the
Management Company within three months of the date of service on
the Tenant of the relevant Service Charge Certificate and upon
receipt of such a notice the Management Company shall furnish to
the Tenant all such relevant details in its possession or control
or which can reasonably be obtained by it as relate to the
expenditure under the item or items in question at the cost of the
Tenant (include all books of account receipts demands and
invoices) PROVIDED ALWAYS that notwithstanding the giving of any
such notice the Tenant shall nevertheless pay all Interim Sums and
Service Charges as and when they fall due or as may be underpaid
from time to time (but without prejudice to any challenge claim or
dispute that the Tenant may have made or may make in the future in
respect of its Service Charge liability or otherwise)
6. Within fourteen days after the service on the Tenant of a Service Charge
Certificate showing that the Service Charge for any Accounting Period
exceeds the Interim Sum for that Accounting Period the Tenant shall
(without prejudice to any challenge claim or dispute as aforesaid) pay
to the Management Company or as it shall direct a sum equal to the
amount by which the Service Charge exceeds the Interim Sum provided that
and the Tenant hereby acknowledges that if there shall be any such
excess in respect of the Accounting Period the amount of such excess
shall be a debt due from the Tenant to the Management Company and in the
event that such excess is not received in cleared funds by the
Management Company within 14 days of the due date for payment it shall
attract interest at the Interest Rate calculated for the period
commencing on the due dates for payment and ending on the date the sum
is subsequently received by the Management Company notwithstanding that
the Term may have expired or been determined before the service by or on
behalf of the Management Company of the relevant Service Charge
Certificate
7. If in any Accounting Period the Service Charge is less than the Interim
Sum for that Accounting Period a sum equal to the amount which the
Interim Sum exceeds the Service Charge shall be accumulated by the
Management Company and shall be applied in or towards the Service Charge
for the next following Accounting Period or Accounting Periods or at or
after the end of the Term repaid to the Tenant within 14 days after
preparation of the Service Charge Certificate and the event that the
excess is not received by the Tenant on the due date for payment it
shall attract interest at the Interest Rate for the period commencing as
the due date for payment and ending on the date that the sum due is
received in cleared funds by the Tenant
8. Unless challenged by the Tenant pursuant to the provisions of paragraph
9 of this schedule every notice certificate calculation determination or
assessment made by or on behalf of the Management Company referred to in
this schedule shall (save where a manifest error appears) be conclusive
and binding upon the parties hereto
9. The Tenant (acting reasonably) may at any time within six months after
the submission of a Service Charge Certificate challenge it on any
reasonable ground (including without limitation on the ground that the
Service Charge therein stated exceeds the Service Charge which should
have been payable had the provisions of this lease been properly
45
adhered to) Provided that the Tenant gives notice with full particulars
of its ground of alleged challenge and in any such case:
(A) any sum due to or payable by the Management Company pursuant to
paragraphs 6 and 7 above shall still be paid or allowed pending
resolution of the Tenant's challenge as if the Service Charge
Certificate were correct
(B) the Management Company and the Tenant shall endeavour to resolve
the relevant issue but if they cannot do so the issue in dispute
shall be referred to the Expert (acting as an expert and not an
arbitrator) whose decision shall save in the case of manifest
error be binding on the parties (including his decision as to the
responsibility for his costs)
(C) such adjustments to the Service Charge Certificate as may be
required to be made in consequence of the resolution of the
dispute shall be paid as soon as reasonably practicable after
such resolution and any sum due to or payable by the Management
Company shall then be paid or allowed (as the case may be)
immediately together with interest at three per cent below the
Interest Rate on such sum during the period which it has been
underpaid or overpaid
10. All sums obtained from the Tenant and any other tenants or occupiers of
the Building towards the Service Cost and sums collected in respect of
the Reserve shall each be placed in separate interest bearing designated
deposit accounts to be applied only towards the cost of providing the
Services and all interest accrued on such deposit account shall be
credited (net of tax) to the account
11. The Management Company will account to the Landlord as soon as
practicable following expiry of each Accounting Period for that part of
the Service Charge which relates to costs directly incurred by the
Landlord and not by the Management Company including (but not limited
to) the costs referred to in paragraphs 5 7 8 9 and 12 of Part II of
schedule 6
12. If in the Management Company's reasonable discretion any of the Services
have to be provided to a greater extent (or the cost of provision of
such Services is greater) than would normally apply in the context of
the general management of the Building in accordance with this lease as
a result either:-
(a) of a specific request by the Tenant (with or without other tenants
or occupiers of accommodation in the Building); or
(b) where such provision is required in the interests of good estate
management as a result of any acts or omissions of the Tenant in
relation to its use and occupation of the Premises
then the Management Company shall be entitled to require the Tenant to
meet the cost of such provision (or a fair proportion thereof determined
by the Management Company) within 10 working days following a demand by
the Management Company
46
SCHEDULE 6
(SERVICES)
PART I
1. Inspecting maintaining repairing amending altering and (where consistent
with an obligation to repair) rebuilding and renewing and where
appropriate treating washing down painting and decorating all load
bearing and other structural parts of the Building and the relevant
parts of it described in paragraphs (ii) and (iii) of schedule 1
2. inspecting servicing maintaining operating and repairing and (where
consistent with an obligation to repair) renewing amending overhauling
and replacing the Landlord's Services Equipment and all other apparatus
plant machinery and equipment within the Building (if any) from time to
time excluding any "stand alone" systems installed by the Tenant or any
other tenant or occupier of the Building
3. Inspecting servicing maintaining operating repairing cleansing emptying
amending altering and renewing overhauling and replacing all Service
Media
4. Keeping the Common Parts and the car park within the Building properly
cleansed decorated treated maintained and lit to such standard as the
Management Company may from time to time consider adequate but the
Common Parts and the car park shall be operational 24 hours a day 7 days
a week
5. Providing such mechanical ventilation heating and (if deemed reasonably
desirable by the Management Company) cooling for such parts of the
Building and for such hours and times of the year (subject to clause 6)
as the Management Company shall in its discretion reasonably determine
save that such mechanical ventilation heating and cooling for the lifts
lobby and entrance halls and toilets shall be provided throughout Normal
Business Hours and at the request of the Tenant outside those hours
subject to the Outside Normal Business Hours Charge
6. Providing and maintaining at the Management Company's discretion any
furniture architectural or ornamental features or murals and any
horticultural displays plants shrubs trees or garden area in the Common
Parts and maintaining the same
7. Supplying whether by purchase or hire and maintaining (and where
consistent with an obligation to repair) renewing replacing repairing
servicing and keeping in good and serviceable order and condition all
fixtures and receptacles appliances materials equipment plant and other
things which the Management Company may reasonably deem desirable or
necessary for the maintenance appearance upkeep or cleanliness of the
Building or any part of it or otherwise in connection with the provision
of the Services
8. Cleaning as frequently as the Management Company shall in its reasonable
discretion consider adequate the exterior and interior of all window
glazing and window frames and other fenestration units in the Common
Parts and the outside of the window glazing referred to in paragraph
(iii) of schedule 1 and the maintenance cleansing repair inspection and
(where necessary) renewal or replacement of all window cleaning) cradles
carriageways and runways
9. Providing a security service 24 hours a day to the Common Parts
(including the ground floor entrance hall at times when receptionists
are not present) and the car park within the Building including where
reasonably appropriate in the Management Company's
47
judgment closed circuit television and/or other plant and equipment for
the purpose of surveillance and supervision of users of the Building
10. Disposing of refuse from the Building (including collecting and
compacting or otherwise treating or packaging as the Management Company
reasonably thinks fit such refuse and if necessary pest control) and
(and where consistent with an obligation to repair) the provision repair
maintenance and renewal of any plant and equipment in connection
therewith
11. Maintaining 24 hours a day 7 days a week an adequate supply of hot and
cold water and supplying washing and toilet requisites in the lavatory
accommodation in the Building
12. Such rodent or other pest control in the Building as the Management
Company shall reasonably consider necessary or desirable
13. Providing one or more receptionists and/or security in the ground floor
entrance hall of the Building 24 hours a day 7 days a week
14. Providing and maintaining a signboard in the entrance lobby of the
building for the display of tenants' names
15. Controlling so far as practicable 24 hours a day 7 days a week traffic
flow within the car park in the Building and traffic 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
16. Providing and maintaining a post room facility for the reception of mail
to the Building
17. Complying with the obligations on the part of the tenant contained in
the Head Lease save for the payment of rent
18. Complying with the obligations set out in clause 6
19. Any other services relating to the Building or any part of it provided
by the Management Company from time to time which shall be:-
(1) reasonably capable of being enjoyed by the occupier of the
Premises or
(2) reasonably calculated to be for the benefit of the Tenant and
other tenants of the Building or
(3) appropriate for the maintenance upkeep or cleanliness of the
Building or
(4) otherwise in keeping with the principles of good estate management
PROVIDED ALWAYS that
(i) Where in this schedule there are references to matters or things
which are then stated to include certain particular matters or
things which are not also stated to be without prejudice to the
generality of the wording preceding it nevertheless the reference
to the particular matters or things shall be deemed to be and in
each case shall be without prejudice to the generality of the
wording preceding it
(ii) The Management Company shall subject to clause 6 when reasonable
have the right to cease or to procure the cessation of the
provision of or add to or procure
48
the addition to any item of Services matter or thing specified in
this schedule if the Management Company shall having regard to
the principles of good estate management reasonably deem it
desirable or expedient so to do but before so doing the
Management Company shall notify all the tenants in the Building
but in the event of any failure of any of the Services shall use
all reasonable endeavours to restore the said Service
(iv) The Management Company or the managing agents may temporarily
withdraw any item of Services matter or thing specified in this
schedule if in their reasonable opinion such withdrawal is in the
interest of good estate management or if such withdrawal is due
to circumstances beyond the control of the Management Company
PART II
1. All fees and disbursements of any individual or firm or company
employed or retained by or on behalf of the Management Company or its
agents (including without limitation managing agents fees) for or in
connection with:-
(1) any surveying or accounting functions for the Building and
(2) the performance of the Services or any of them and any other
duties in or about the Building or any part of it relating to the
general management administration security maintenance protection
and cleanliness of the Building
2. The reasonable fees of the Management Company for any of the Services or
for the functions and duties referred to in paragraph 1 of this Part of
this schedule which shall be undertaken by the Management Company and
not by a third party
3. The cost (in addition to any fees referred to in paragraph 2 and where
the context permits paragraph 1 of this Part of this schedule) of
employing (whether by the Management Company or any managing agents or
any other individual or firm or company) such staff as the Management
Company may in its reasonable discretion consider appropriate for the
performance of the Services and the functions and duties referred to in
paragraph 1 of this Part of this schedule and all other incidental
expenditure in relation to such employment including without prejudice
to the generality of the foregoing:-
(1) salaries wages pensions and pension contributions benefits in
kind and other emoluments and National Insurance and other
statutory contributions or levies
(2) the provision of uniforms and working clothing
(3) the provision of vehicles tools appliances cleaning and other
material fixtures fittings and other equipment for the proper
performance of their duties and a store for housing the same and
(4) a reasonable notional rent for any premises reasonably provided
rent free for every such person's use occupancy or residence
4. The cost of entering into any contracts for the carrying out of all or
any of the Services
5. All rates taxes assessments duties charges impositions and outgoings
which are now or during the Term shall be charged assessed or imposed
on:-
(1) the whole of the Common Parts or any part of them
49
(2) any residential accommodation provided for caretakers and other
staff employed in connection with the Building and any other
premises provided as referred to in paragraph 3(4) of this Part
of this schedule
excluding any tax (other than VAT) payable by the Landlord as a direct
result of any actual or implied dealing with the reversion of any Lease
or of the Landlord's receipt of income
6. The cost of the supply of water electricity gas oil and other fuel for
the provision of the Services and the cost of any electricity generating
transforming monitoring metering and distribution plant machinery and
equipment in or servicing the Building
7. The cost which the Landlord may be called upon pursuant to any Enactment
to pay as a contribution towards the expense of making repairing
maintaining rebuilding and cleansing any ways roads pavements or
structures Service Media or anything which may belong to or be used for
the Building or any part of it exclusively or in common with other
neighbouring or adjoining premises
8. The cost of taking all steps deemed desirable or expedient by the
Landlord and/or the Management Company for complying with or making
representations against or otherwise contesting the incidence of the
provisions of any Enactment relating to or alleged to relate to the
Building or any part or it for which any tenant is not directly and
exclusively liable
9. The cost to the Landlord and/or the Management Company of abating any
nuisance in respect of the Building or any part of it insofar as the
same is not the liability of any tenant
10. Any interest and fees incurred in respect of money borrowed in
unforeseen or emergency circumstances to finance the provision of the
Services and the costs referred to in this Part of this schedule or any
of them
11. Any VAT (or any tax of a similar nature which may be substituted for or
levied in addition to it) incurred by the Management Company on any
other amount comprised in the Service Cost save to the extent that the
Management Company obtains credit for such VAT incurred by the
Management Company pursuant to sections 24 25 and 26 Value Added Tax Act
1994 or any regulations made thereunder
12. A reasonable notional rent for any management accommodation provided
within the Building to facilitate the provision of the Services
13. All other reasonable actual costs properly incurred in connection with
the provision of the Services
SCHEDULE 7
(MATTERS TO WHICH THE DEMISE IS SUBJECT)
1. The entries on the registers of Title Number NGL272172 as at the date
hereof
2. Agreement dated 24th November 1995 between The Prudential Assurance
Company Limited (1) 99 Bishopsgate Limited (2) The Scottish Amicable
Life Assurance Society (3)
50
SCHEDULE 8
PROVISIONS FOR VAT INDEMNITY
PART I
1. Additional Definitions:
"TAX CREDIT" means a credit in respect of, or repayment of, input VAT,
arising by virtue of and determined in accordance with sections 24, 25
and 26 Value Added Tax Act 1994 and regulation made thereunder
"TENANT'S AUDITORS" means the auditors for the time being of the Tenant
provided that they are one of the following firms of accountants -
Deloitte Touche, Coopers and Lybrand, Ernst & Young, KPMG, Price
Waterhouse or Arthur Andersen - or such other reputable firm or
accountants as the Landlord has previously approved for the purpose of
this schedule 8 (such approval not to be unreasonably withheld or
delayed).
"VAT ELECTION" means an election under paragraph 2 of Schedule 10 Value
Added Tax Act 1994 made by the Landlord or any person of whom the
Landlord is a "Relevant Associate" within the meaning of paragraph 3(7)
of Schedule 10 or any other election or voluntary act by the Landlord or
any person connected with the Landlord (as determined under the
provisions of Section 839 of the Income and Corporation Taxes Act 1988)
which results in VAT being payable on the rent first reserved by this
lease
"VAT YEAR" means a tax year for Value Added Tax purposes determined in
accordance with Part XIV of the Value Added Tax Regulations 1995.
"VAT YEAR CERTIFICATE" means the certificate to be provided by the
Tenant following the end of the Tenant's VAT Year in the form set out in
Part II of this Schedule.
2. Payment of VAT - no VAT Election
In the event that the rent first reserved (or any part thereof)
constitutes consideration for a taxable supply for VAT purposes which
would be a taxable supply whether or not a VAT Election has effect in
respect of the Premises, the Tenant shall pay such VAT in addition to
the rent first reserved without any adjustment of rent first reserved
under this schedule.
3. Adjustment of rent first reserved and payment of VAT - VAT Election made
If and for all periods where the rent first reserved (or any part
thereof) constitutes consideration for a taxable supply for VAT purposes
which would not be a taxable supply but for a VAT Election having effect
in respect of the Premises, the rent first reserved shall be adjusted to
such amount as when aggregated with that part of the VAT chargeable
thereon in respect of which the Tenant does not obtain a Tax Credit,
equals the rent first reserved which would have been paid had no VAT
Election been made.
4. Determination of adjustment of rent first reserved
4.1 At least 28 days prior to (a) 29th September 1998 and (b) every
subsequent anniversary thereof the Tenant shall serve a VAT Year
Certificate on the Landlord. Where the Tenant has served such VAT Year
Certificate (or is deemed to have done so pursuant to paragraph 4.2 of
this Part I below), the Tenant shall pay the amounts (including the VAT)
stipulated (or deemed to be stipulated) in paragraph 3 of such VAT Year
Certificate on
51
the due date for payment of the next installment of the rent first
reserved (and on the due date for subsequent instalments), subject
however to paragraph 4.3 of this Part I below.
4.2 If the Tenant fails to serve a VAT Year Certificate at least 28 days
prior to the due date for payment of the sum in respect of which
paragraph 3 above will apply, the Tenant shall be deemed to have served
a VAT Year Certificate specifying in paragraph 1 thereof the same
estimated proportion as stated in the previous VAT Year Certificate
served, or if no previous VAT Year Certificate has been served by the
Tenant at any time prior to the due date for any VAT Year Certificate an
estimated proportion of nil per cent. If the Tenant fails to serve a VAT
Year Certificate on more than one consecutive occasion the Tenant shall
be deemed, on the second failure and any subsequent failure, until
service of the next VAT Year Certificate, to have served a VAT Year
Certificate specifying in paragraph 1 thereof an estimated proportion of
nil per cent.
4.3 The VAT Year Certificate shall be final and binding unless the Landlord
notifies the Tenant within 30 days after the date on which a VAT Year
Certificate has been served that it disputes the VAT Year Certificate on
the grounds of manifest error. Unless such notification is given, no
further adjustments (other than those covered by the VAT Year
Certificate) shall be made in respect of any instalments of rent first
reserved in the VAT Year covered by the aforementioned VAT Year
Certificate. Whether or not the Landlord notifies the Tenant that it
disputes any amount, the Tenant shall pay on the due date for payment of
the next installment of rent first reserved immediately following the
service of the VAT Year Certificate to which the dispute relates, the
amount stipulated in paragraph 3 of the VAT Year Certificate.
4.4 If the Review Rent is not agreed or determined until after a relevant
Review Date, the amount of any increase to be paid pursuant to paragraph
2 of schedule 4 of this lease shall (if paragraph 3 above applies at
that time) be adjusted on the basis of the last VAT Year Certificate.
The adjustment amount shall be paid at the time when the amount of any
unadjusted increase would have been due to be paid and the provisions of
this schedule shall apply as if the amount of the increase were an
amount to which paragraph 3 of Part I of this schedule 8 applied.
4.5 The Landlord may notify the Tenant in writing at any time within five
days of the service of any VAT Year Certificate (or within five days of
the last date on which the Tenant should have served a VAT Year
Certificate and is therefore deemed to have served one) that it requires
the Tenant to obtain a certificate from the Tenant's Auditors at the
Tenant's cost (if adjustments are required following such process) or at
the Landlord's cost (if no such adjustments are required) in the form
set out in the VAT Year Certificate. The Tenant's Auditor's certificate
shall be provided at least eight days prior to the date of payment of
the rent first reserved to which such certificate relates, together with
the Tenant's revised VAT Year Certificate (if required in order for the
Tenant's Auditors to be able to provide a certificate). The Tenant
shall pay in accordance with paragraph 4.1 above the amount stipulated
in accordance with paragraph 3 of such VAT Year Certificate (as revised,
if required) on the date for payment of the rent first reserved.
4.6 If adjustments are required pursuant to any VAT Year Certificate as a
result of the proportion of VAT for which the Tenant has obtained or
will obtain a Tax Credit differing from the proportion previously taken
into account in calculation any payment, any such difference shall be
taken into account (after having determined the amount of rent first
reserved payable in respect of the next quarter in accordance with
paragraph 3 above) in calculating the next actual payment of rent first
reserved (either by increase or
52
decrease), the amount of which shall be set out in paragraph 3 of the
VAT Year Certificate.
4.7 Interest shall be payable at three per cent below the Interest Rate by
the Landlord and three per cent below the Interest Rate by the Tenant on
the difference between the amount actually paid pursuant to the relevant
VAT Year Certificate on the due date for payment of any sum to which
paragraph 3 of Part I of this schedule 8 applies and the amount which
should have been paid, from such due date until the date of payment of
the adjusted amount pursuant to paragraph 4.3. Where the actual amount
paid (the "Initial Payment") on the due date for payment of any sum was
subsequently adjusted on payment of any later installment of the rent
first reserved (the "Adjusted Payment") in accordance with paragraph 4.6
of Part I of this Schedule 8 and paragraph 3(b) of the VAT Year
Certificate, the interest shall be calculated on the basis of the
difference between the Initial Payment and the amount which should have
been paid pursuant to paragraph 4.1 until the date of the Adjustment
Payment, and then on the difference between the Adjustment Payment and
the amount which should have been paid until payment of that amount
pursuant to paragraphs 4.3.
4.8 Following any assignment of the whole of the Premises, the provisions of
this schedule 8 shall apply to any new Tenant as if it were the first
Tenant, and a VAT Notice served by the new Tenant shall not take into
account any adjustments made, or to be made, in respect of any previous
Tenant.
5. Miscellaneous
The Tenant shall be at liberty to carry on the ordinary course of its
trade as it wishes and shall not be precluded from proposing or
accepting a method of attribution designed or maximise its Tax Credit
and covenants not to enter any arrangement which has the specific
purpose of increasing the amount by which the rent first reserved is
decreased by virtue of this schedule 8.
53
PART II
VAT YEAR CERTIFICATE
To: The Landlord From: The Tenant
We refer to paragraph 4.3 of Part I of schedule 8 to the Lease dated [ ]
made between 99 Bishopsgate Limited (1) 99 Bishopsgate Management Limited (2)
Hammerson U.K. Properties plc (3) Donaldson Lufkin & Jenrette International
Limited (4) and Donaldson Lufkin & Jenrette Inc. (5) in respect of premises on
[ ] floor of the building known as 99 Bishopsgate London EC2 and pursuant to
that paragraph:
1. Our VAT Year which included the following quarter days [ ], ended on
[ ], ended on [
(a) The part of the VAT charged on the rent first reserved paid in the
VAT Year for or in respect of which we estimate/have determined
(in accordance, where relevant, with the return made, or to be
made, for the prescribed accounting period next following the end
of the VAT Year) we will be unable to obtain credit or repayment
is a proportion of [ ] per cent of the total VAT charged.
(b) The following Table sets out the part of the VAT charged which was
expected to be irrevocable during the VAT Year where it has been
determined on the basis of paragraph 2(a) above that that differs
from the amount of VAT for or in respect of which we actually
obtained, or will be able to obtain, credit or repayment.
Dates Rent first reserved Estimate Adjustment Determination
----- ------------------- -------- ---------- -------------
* ** ***
* estimate of proportion of VAT for or in respect of which we
estimated we would be unable to obtain credit or repayment as set
out initially in VAT Notice.
** adjusted estimate of proportion of VAT for or in respect of which
we estimated we would be unable to obtain credit or repayment as
set out in subsequent VAT Notice.
*** proportion of VAT for or in respect of which we have now
estimated/determined we shall be unable to obtain credit or
repayment, in accordance with Sections 24-26 of the Value Added
Tax Act 1994 and the Value Added Tax Regulations 1995
3. We request that adjustment is made to the next installment of rent first
reserved so as to ensure that the amount of rent first reserved payable
in the VAT Year to which this VAT Year Certificate relates is as
provided in paragraph 3 of Part I of Schedule 8 to the Lease in
accordance with the information given in paragraph 2 above
and we calculate that the next installment of rent first reserved as so
adjusted shall be pounds sterling [ ] exclusive of VAT and the VAT
thereon shall be pounds sterling [ ], and that the interest payable by
the Tenant to the Landlord/Landlord to the Tenant, in accordance with
paragraph 4.7 of Part I schedule 8 to the Lease shall be pounds sterling
[ ].
4. We hereby declare that:
54
(a) we have complied with the covenant imposed upon us by paragraph 6.2
of Part I of schedule 8 to the Lease;
(b) the information contained in this VAT Notice is to the best of our
knowledge, information and belief complete and accurate;
(c) we have made all due returns to the Commissioners of Customs and
Excise and such returns are complete and accurate in all material
respects and have been made within the time limits provided by
statute.
Signed by
an authorised signatory on behalf of the Tenant
The above declarations are, to the best of our knowledge and belief after due
and careful enquiry, true, accurate and complete.
Signed by
Tenant's Auditors
55
(THE COMMON SEAL of 99 BISHOPSGATE
(LIMITED was hereunto affixed in the presence
(of:-
[SEAL OMITTED]
Director /s/
Director /s/
(THE COMMON SEAL of 99 BISHOPSGATE
(MANAGEMENT LIMITED was hereunto
(affixed in the presence of:-
[SEAL OMITTED]
Director /s/
Director /s/
(THE COMMON SEAL of HAMMERSON U.K.
(PROPERTIES plc was hereunto affixed in the
(presence of:
[SEAL OMITTED]
Director /s/
Director /s/
23RD FLOOR, 99 BISHOPSGATE, LONDON, E.C.2.
99 BISHOPSGATE LIMITED (1)
99 BISHOPSGATE MANAGEMENT LIMITED (2)
HAMMERSON U.K. PROPERTIES PLC (3)
DONALDSON, LUFKIN & JENRETTE
INTERNATIONAL LIMITED (4)
DONALDSON, LUFKIN & JENRETTE INC. (5)
------------------------------------
REINSTATEMENT SPECIFICATION
WHICH FORMS PART OF THE UNDERLEASE
DATED 24TH OCTOBER 1996
------------------------------------
99 BISHOPSGATE - 23RD FLOOR
REINSTATEMENT SPECIFICATION
CEILING TILES
CAPL system 335 Tartan Grid System tiles generally 1200 x 450 mm plus 1200 x
300 nominal, face perforated to CAPL pattern D1522 including 10mm plain
borders. Panels finishes polyester powder paint incorporating acoustic
insulation 45 kg/m3, block tissue faced, Rockwool backed with an inverted
steel tray, "stitched" to ceiling panel.
The ceiling support system is a fixed element from which the tartan grid,
ceiling tiles, lighting fittings, air handling grilles, sprinklers, smoke
detectors, pa system and plenums are hung.
WIRING HARNESS
A pre-formed flexible wiring system comprising:-
Multi conductor home-run cable
Master distribution box
Extender cable
Whip end extender cable by MODULAR WIRING SYSTEMS EUROPE LTD
LIGHT FITTINGS
TYPE A
Moorlite ref SP300/13532/W2/SSLIHFGi2436/AH. 2 X 36 watt TB triphosphate
fluorescent colour temp 3500o K with Cat 2 semi-specular louvre, high
frequency control gear and air handling facilities to 41 l/s. Finished to RAL
9010 20% gloss.
TYPE AE
As type A but incorporates 3 hour emergency battery invertor packs.
TYPE A2
Moorlite ref SP300/135655/W2/SSL/HFG/2218/AH. 2 x 18 watt TB triphosphate
colour temp 3500o K with semi-specular louvre to LG3 cat 2, high frequency
control gear and air handling facilities to 41 l/s. Finished to RAL 9010 20%
gloss.
TYPE B
Moorlite ref SP300/13657/W2/SSLIHFG/2224/AH. 2 x 24 watt TCL fluorescent
colour temp 3500o K with semi-specular louvre to LG3 cat 2 gear and air
handling facilities to 41 l/s. Finished to RAL 9010 20% gloss.
COMPUTER ADDRESSABLE LIGHTING MANAGEMENT SYSTEM
Lighting Management System which provides independent control and monitoring
of every luminaire, by DELMATIC type ZMC, comprising ZMC floor controllers and
ZMC 8 way output control module.
ACCESSORIES
Wandsworth type gridswitch series 3 with black inserts.
FIRE ALARM AND DETECTION SYSTEM
An intelligent analogue programmable addressable system by ADT type IRC-3
incorporating voice and public address comprising:-
Smoke detectors - Signature Series 4D.
Break glass call point - SIGA - KRi/SR/6S
Speakers - QFIT/SPECIAL/TF
SECURITY SYSTEM
A distributed intelligence structured wide area access control system by ADT
type Janus comprising: -
Magnalocks - DRYAD DS7001
Proximity readers - IDE/004/REA
Passcards - IDE/001/PC
Passive Infraced Detectors 360o - P55048
CCTV camera - CD/6252
Door controller - IDC
RAISED FLOOR
Fully accessible raised access floor installed with an average overall depth
of 125mm.
Panel Type: GCS Cornerlock
Panel Grade: Medium
Finish: Tate GCS Standard Finish
FAN COIL UNITS
The office floor is served by a four pipe fan coil unit air-conditioning
system located within the suspended ceiling void. The units are as
manufactured by Senior Moducel of the Airtech range EVU 235 series. The units
are constructed from heavy gauge prime quality plastisol sheet steel
incorporating a multi-spigoted acoustically lined discharge plenum. The forged
brass 4 part control valve, as manufactured by Johnson Controls series VB55,
is proportionally controlled in sequence with the motor speed to achieve
maximum efficiency. The fan motor speed controller is manufactured by SIEBE
Ltd, model number 1262/1. The valve actuator is manufactured by Johnson
Controls model number VA7310.
PLENUMS
Conditioned air from the FCU's are distributed via sheet metal ductwork to
acoustically insulated plenum boxes as manufactured by Carrier of the Moduboot
35BD series. The plenum boxes are complete with fresh air collar where
required.
SUPPLY DIFFUSERS
The plenum box terminates with a linear diffuser to provide uniform air
distribution. The diffusers are manufactured by Carrier of the 35BD series
types AG and AH one-way and two-way directional blow. One number diffuser per
FCU is supplied complete with air sensor as manufactured by Sontay series
TT55, the sensor is completed with 3 metres of LSF cable. These diffusers are
constructed with an aspirator box to accommodate the sensor.
EXTRACT AIR DIFFUSERS
Air is extracted from the space via air handling luminaires (as specified
under the Electrical Services) and linear extract air diffusers. The extract
air diffusers are similar to the supply being manufactured by Carrier series
35BD type AG, 1 way directional blow. However these diffusers do not require a
fitted plenum box.
VOLUME CONTROL DAMPERS
Motorised isolation dampers are installed in the supply and extract ductwork
main branches to achieve quadrant control, via the BMS, to the floor. Volume
control dampers are installed to all the sub-branches to regulate the air
volume. The dampers are manufactured by Volume Control Devises, are stainless
steel, aerofoil multi-blade dampers.
The isolation damper actuators are as manufactured by SIEBE Ltd model no.
MF/6233.
FIRE DAMPERS
Where fire dampers are installed they are of the fusible link type as
manufactured by Volume Control Devises series FB. The dampers comprise of
interlocking stainless steel aerofoil blades, stainless steel bearings and
peripheral gasketing, totally enclosed drive mechanism and double skin
galvanised 18 gauge spigot casing.
SPRINKLERS
A sprinkler system is installed throughout to comply with the requirements of
BS 5306, Part 2 1990 and the recommendations of the Loss Prevention Council.
The sprinkler heads as installed are flush mounted as manufactured by Reliable
Ltd.
VALVES
Commissioning Valves and Isolating Valves are installed to the return and
flow, respectively, of the Landlords and Tenants secondary CHW installation to
the floor. They are also installed to the LTHW constant temperature system to
the floor. The valves are as manufactured by Tour and Anderson Limited.
Commissioning Valves are typically as follows:-
Up to 50mm diameter TA Fig MD41. Ametal bronze commissioning set comprising of
MD20 double regulating valve and MDFO on fix plate. Isolation valves are
typically as follows: -
Up to 50mm diameter TA Fig 64. Ametal gate valve. 65mm and above TA Fig 35
lever operated butterfly valve.
PERIMETER HEATING
Perimeter heating is provided to offset heat losses to the glazing. The finned
heating element is manufactured by HCP Ltd, installed in an Architectural
perimeter rail provided by Permasteelisa, the cladding manufacturers.
VENETIAN BLINDS
Silver fine line aluminium blinds integral with the curtain walling system.
Supplied by Abba srl, Italy.
WALLS, CORE, COLUMN
Finished in emulsion paint
SKIRTING
Hardwood - American Cherry
CARPET
Grade 3 Fusion Bonded with PVC based backing with printed overlay and inlays
and borders as required. From Milliken standard range.
FLOOR BOXES
3 compartment box with interchangeable plates. Minimum layout 1 box to 10 m(2).
DOORS
Veneer finish with hardwood lippings - American Cherry
PLANS
23rd Floor General Arrangement Plan L23/AL (G) 3030C
Reflected Ceiling Plan - Level 23 L23/AL (C) 3127
Raised Floor Plan - Level 23 L23/AL (F) 3232
Floor Coordinated HL Services Layout, SE Zone 86822/CO/RD/2102
23rd Floor
Floor Coordinated HL Services Layout, NE Zone 86822/CO/RD/2101
23rd Floor
Floor Coordinated HL Services Layout, SW Zone 86822/CO/RD/2103
23rd Floor
Floor Coordinated HL Services Layout, NW Zone 86822/CO/ED/2104
23rd Floor
Electrical Services Lighting and Small Power Layout 86824/EL/RD/211
23rd Floor
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Project no. Drawing no. Revision
2275 L23/AL(G)3030 C
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No dimension to be scaled from this drawing
Report all errors and omissions to the Architect
Dimensions to be checked on site before fabrication
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DETAILS AND SETTING OUT OF EXISTING
ELEMENTS ON THIS DRAWING ARE DERIVED
FROM RECORD DRAWINGS BUT NOT
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REV DESCRIPTION DATE SIG CHK
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C Hose reels revised, grillage revised.
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Levels revised. 09/11/95 JKM
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RECORD DRAWING 18/12/95
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Project no. Drawing no. Revision
2275 L23/AL(C)3127
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Notes: Do not remove this panel from the drawing
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Report all errors and omissions to the Architect
Dimensions to be checked on site before fabrication
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DETAILS AND SETTING OUT OF EXISTING
ELEMENTS ON THIS DRAWING ARE DERIVED
FROM RECORD DRAWINGS BUT NOT
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Project no. Drawing no. Revision
2275 L23/AL(F)3232
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No dimension to be scaled from this drawing
Report all errors and omissions to the Architect
Dimensions to be checked on site before fabrication
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DETAILS AND SETTING OUT OF EXISTING
ELEMENTS ON THIS DRAWING ARE DERIVED
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Rev Description By M E P F Issue
Date Checked Date
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Engineer Drawn Date Checked Date
25/09/95
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Contract Name
99,BISHOPSGATE
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Drawing Title
23rd FLOOR
CO-ORDINATED H.L. SERVICES
LAYOUT.-N.W. ZONE
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[Matthew Hall Logo] MATTHEW HALL
Matthew Hall Limited
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Drawing Number Rev. COPYRIGHT
RESERVED
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86822/CO/RD/2104 Scale:
1.25
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NOTE: THIS DRAWING PRINTED IN PINK INDICATES THE ISSUE TO BE PRELIMINARY
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Rev Description By M E P F Issue
Date Checked Date
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Engineer Drawn Date Checked Date
19/09/95
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Contract Name
99,BISHOPSGATE
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Drawing Title
23rd FLOOR
CO-ORDINATED H.L. SERVICES
LAYOUT.-S.W. ZONE
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[Matthew Hall Logo] MATTHEW HALL
Matthew Hall Limited
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Drawing Number Rev. COPYRIGHT
RESERVED
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86822/CO/RD/2103 Scale:
1.25
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NOTE: THIS DRAWING PRINTED IN PINK INDICATES THE ISSUE TO BE PRELIMINARY
RECORD DRAWING
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Rev Description By M E P F Issue
Date Checked Date
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Engineer Drawn Date Checked Date
30/08/95
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Contract Name
99,BISHOPSGATE
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Drawing Title
23rd FLOOR
COORDINATED HL SERVICES
LAYOUT, SE ZONE
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[Matthew Hall Logo] MATTHEW HALL
Matthew Hall Limited
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Drawing Number Rev. COPYRIGHT
RESERVED
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86822/CO/RD/2102 Scale:
1.25
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NOTE: THIS DRAWING PRINTED IN PINK INDICATES THE ISSUE TO BE PRELIMINARY
RECORD DRAWING
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Rev Description By M E P F Issue
Date Checked Date
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Engineer Drawn Date Checked Date
30/08/95
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Contract Name
99,BISHOPSGATE
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Drawing Title
23rd FLOOR
CO-ORDINATED H.L. SERVICES
LAYOUT, NE ZONE
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[Matthew Hall Logo] MATTHEW HALL
Matthew Hall Limited
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Drawing Number Rev. COPYRIGHT
RESERVED
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86822/CO/RD/2101 Scale:
1.25
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NOTE: THIS DRAWING PRINTED IN PINK INDICATES THE ISSUE TO BE PRELIMINARY
PRODUCT SPECIFICATION NOTES
1/ MASTER DISTRIBUTION BOXES
COMPRISING OF A STEEL ENCLOSURE WITH 12 NO. INDIVIDUAL PORTS
EACH PROVIDING A 20A 240V 50HZ SINGLE PHASE CIRCUIT PORTS
ARE PROVISIONALLY APPOSITIONED FOR 4 NO. HVAC/SMALL POWER
AND 8 NO. FOR LIGHTING ALLOWANCE FOR FUTURE SPARE CAPACITY
HAS BEEN MADE
2/ HR CABLE
2 NO MULTI-POOL ARMOURED BUSWAYS OF UP TO 18 CONDUCTORS
3/ EXTENDER CABLE
3, 4 AND 5 CONDUCTOR ARMOURED CABLES PRE-TERMINATED IN
A MALE AND FEMALE PLUG ARRANGEMENT ONTO MDB AND "TEE"
COMPONENTS
4/ LIGHTING AND POWER TEES
FOR CONNECTING THE SYSTEM ONTO FIXED EQUIPMENT
5/ DATA/BUS CABLING
ARMOURED BELDEN TWISTED PAIR CABLE PRE-TERMINATED AND CUT
INTO PRE-SET LENGTHS. (REFER TO ABOVE NOTES) SHALL BE
ZIP TIED ONTO METALLIC FLEXIBLE BUSBAR.
6/ GENERAL
SYSTEM IS TESTED TO BS5486 PART 2 1988 AND MANUFACTURED
IN AN ISO 9000 ENVIRONMENT
RECORD DRAWING
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Rev Description By M E P F Issue
Date Checked Date
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Engineer Drawn Date Checked Date
26/9/95
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Contract Name
99,BISHOPSGATE
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Drawing Title
ELECTRICAL SERVICES
LIGHTING & SMALL POWER
LAYOUT 23rd FLOOR
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[Matthew Hall Logo] MATTHEW HALL
Matthew Hall Limited
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Drawing Number Rev. COPYRIGHT
RESERVED
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86824/el/RD/211 Scale:
1.25
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NOTE: THIS DRAWING PRINTED IN PINK INDICATES THE ISSUE TO BE PRELIMINARY
DATED 24TH OCTOBER 1996
---------------------------------
99 BISHOPSGATE LIMITED
and
99 BISHOPSGATE MANAGEMENT LIMITED
and
HAMMERSON U.K. PROPERTIES PLC
and
DONALDSON, LUFKIN & JENRETTE
INTERNATIONAL LIMITED
UNDERLEASE
of
Twenty-second Floor 99 Bishopsgate London EC2
HERBERT SMITH
Exchange House
Primrose Street
London EC2A 2HS
Tel: 0171-374 8000
Fax: 0171-496 0043
Ref: 129/P1 7/30608932
TABLE OF CONTENTS
CLAUSE HEADING PAGE
- ------------- ------------------------------------------------------- ------
1. Definitions
Building
Common Parts
Development
Electricty Cost
Enactment
Head Lease/Superior Lease
Insurance Cost
Insurance Rent
Insured Risks
Interest Rate
Lettable Unit
Net Internal Area
Normal Business Hours
Permitted Part
Permitted Use
Planning Law
Plans
Premises
Public Authority
Services
Service Media
Tenant
Term
VAT
2. Interpretation
3. Demise and Rents
4. Tenant's Covenants
(1) Rent
(2) VAT
(3) Outgoings
(4) Compliance with Enactments
(5) Notices
(6) Repair
(7) Decoration and general condition and servicing
(8) Refuse
(9) To permit entry
(10) Compliance with notices relating to repair or condition
(11) Encroachments
(12) Alterations and reinstatement
(13) Use
(14) Signs
CLAUSE HEADING PAGE
- ------------- ------------------------------------------------------- ------
(15) Alienation
(16) Registration
(17) Payment of cost of notices consents etc.
(18) Machinery
(19) Obstruction/overloading
(20) Parking/goods delivery
(21) Planning Law and compensation
(22) Indemnity
(23) Defective Premises
(24) Insurance and fire fighting equipment
(25) Dangeours and contaminative materials
(26) Yield up
(27) Regulations and covenants
(28) Security and access
(29) Head Lease
(30) Service Charge
5. Landlord's Covenants
(1) Quiet Enjoyment
(2) Insurance
(3) Head Lease
(4) Electricity Provision
(5) Management Company access
(6) VAT indemnity
6. Provision of Services
7. Provisos
(1) Forfeiture and re-entry
(2) Letting Scheme use and easements
(3) Common Parts and Service Media
(4) Service of notices
(5) Rent cesser
(6) Landlord's liability
(7) Arbitration fees
(8) Rent review memorandum
(9) No warranty as to use
(10) Disputes
(11) Compensation
(12) Rateable value appeals
(13) No warranty as to security
(14) Jurisdiction
(15) Overriding lease
(16)
8. Landlord's Guarantor
9. Tenant's option to determine
CLAUSE HEADING PAGE
- ------------- ------------------------------------------------------- ------
10. Guarantee and Guarantor's Indemnity
11. Stamp Duty Certificate
Schedule 1 Premises
Schedule 2 Easements and rights granted
Schedule 3 Exceptions and reservations
Schedule 4 The first reserved rent and the review thereof
Schedule 5 Service Charge
Schedule 6 Services
Schedule 7 Deeds and documents to which the demise is subject
LEASE PARTICULARS
- ----------------------------------------------------------------------------------------
1. DATE 24TH OCTOBER 1996
THIS LEASE IS AND IS INTENDED TO BE DELIVERED ON THE DATE FIRST ABOVE WRITTEN
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2. PARTIES
(a) LANDLORD : 99 Bishopsgate Limited
(b) TENANT : Donaldson, Lufkin & Jenrette International
Limited
(c) MANAGEMENT COMPANY : 99 Bishopsgate Management Limited
(d) LANDLORD'S GUARANTOR : Hammerson U.K. Properties plc
(e) TENANT'S GUARANTOR : Donaldson, Lufkin & Jenrette, Inc.
- ------- -------------------------- ----- --------------------------------------------
3. DEMISED PREMISES : ALL THOSE premises on the 22nd floor of the
Building shown for identification only edged
red on Plan 1.
- ------- -------------------------- ----- --------------------------------------------
4. BUILDING : 99 Bishopsgate London EC 2
- ------- -------------------------- ----- --------------------------------------------
5. CONTRACTUAL TERM AND : Commencing on the date hereof and expiring
TERM COMMENCEMENT on 23rd October 2011
AND EXPIRY DATES
- ------- -------------------------- ----- --------------------------------------------
6. INITIAL RENT : pounds sterling423,914
- ------- -------------------------- ----- --------------------------------------------
7. RENT COMMENCEMENT DATE : 25th March 1998
- ------- -------------------------- ----- --------------------------------------------
8. TENANT'S BREAK RIGHT : 28th October 2008
- ------- -------------------------- ----- --------------------------------------------
9. CAPITAL SUM : pounds sterling211,957 inclusive of VAT
- ------- -------------------------- ----- --------------------------------------------
THIS UNDERLEASE made the 24th day of October One thousand nine hundred and
ninety six
BETWEEN:-
[SEALS]
(1) 99 BISHOPSGATE LIMITED whose registered office is at Lo Lam House
Kumul Highway Port Vila Vanuatu (Co. Regn. No. 10469) registered
under Section 2IACo the Companies Act 1985 under company number
FCO18588 and branch number BR002962) whose principal place of
business is at 100 Park Lane London W1Y 4AR (the "LANDLORD")
(2) 99 BISHOPSGATE MANAGEMENT LIMITED whose registered office is at 100
Park Lane London W1Y 4AR (Co. Regn. No. 3071752) (the "MANAGEMENT
COMPANY")
(3) HAMMERSON U.K. PROPERTIES PLC whose registered office is at 100 Park
Lane London W1Y 4AR (Co. Regn. No. 298351) (the "LANDLORD'S
GUARANTOR")
(4) DONALDSON, LUFKIN & JENRETTE INTERNATIONAL LIMITED whose registered
office is at Moorgate Hall 155 Moorgate London EC2M 6XB (Co. Regn.
No. 2475089) (the "TENANT") and
(5) DONALDSON, LUFKIN & JENRETTE, INC. a corporation incorporated in the
State of Delaware United States of America whose address for the
purposes of this lease is 277 Park Avenue New York New York 10172
(the "GUARANTOR")
WITNESSETH as follows:-
1. DEFINITIONS
In this lease the following expressions have the respective specified
meanings (subject to any particular intervention required by clause 2):-
(1) "ACTS OF TERRORISM" means any act or omission of any person acting
on behalf of or in connection with any organisation (or on his own
behalf) which carries out activities directed towards overthrowing
or influencing by force or violence Her Majesty's Government in the
United Kingdom or any other government de jure or de facto
(2) "AGREEMENT FOR INITIAL ALTERATIONS" means the agreement of even date
herewith and made between the Landlord and the Tenant governing the
initial fitting out of the Premises
(3) "BUILDING" means the land (of which the Premises form part) having a
frontage to the west side of Bishopsgate and a return frontage to
the south side of Wormwood Street and all buildings fixtures and
other structures whatsoever from time to time thereon and the
appurtenances thereof which land (together with the building now
erected thereon) is known as 99 Bishopsgate London EC2 and is for
the purpose of identification shown verged by a blue line on the
Building Plan together with any adjoining areas designated by the
Landlord or the Management Company
(4) "COMMON PARTS" means all parts of the Building which are from time
to time intended for the common use and enjoyment of the tenants and
occupiers of the Building and persons claiming through or under them
(whether or not other
parties are also entitled to use and enjoy the same) and reasonably
designated as such by the Landlord and including without prejudice
to the generality of the foregoing the pedestrian ways circulation
areas lobby entrance halls lifts lift shafts fire escapes landings
staircases passages forecourts car park landscaped areas plant rooms
management suites and any other areas which are from time to time
during the Term reasonably provided by the Landlord for common use
by or benefit of the tenants and occupiers of the Building But
excluding (for the avoidance of doubt) any premises intended to be
let to any party or for occupation by the Landlord or the Management
Company other than for the provision of the Services
(5) "DEVELOPMENT" has the meaning ascribed to that expression by
Planning Law
(6) "ELECTRICITY COST" means the actual cost to the Landlord of the
provision of electricity to the Premises for consumption by the
Tenant in accordance with its covenant contained at clause 5(4)
being a fair and reasonable proportion as determined by the
Landlord of the total cost of the provision of electricity to the
Building as a whole (including the provision of any security for
the supply of electricity to the Building which may from time to
time be required by the relevant undertaker responsible for the
supply of electricity chosen by the Landlord) which proportion
shall so far as practicable (save where the same are not in working
order) be calculated using readings taken in such manner and at
such times as the Landlord shall from time to time determine of the
check meters relating to the Premises from time to time installed
but otherwise shall be determined in such manner as the Landlord
shall in its discretion consider to be fair and reasonable in all
the circumstances
(7) "ENACTMENT" means every Act of Parliament directive and regulation
now or hereafter to be enacted or made and all subordinate
legislation whatsoever deriving validity therefrom
(8) "HEAD LEASE" means the lease under which the Landlord holds the
Premises dated 29th September 1975 made between The Prudential
Assurance Company Limited (1) and Bishopsgate Developments Limited
(2) and "Superior Landlord" means the person for the time being
entitled to the reversion immediately expectant on the term granted
by the Head Lease and every other person having an interest in
reversion to that term
(9) "GROUP COMPANY" means a company which is either the holding company
of the Tenant or a wholly owned subsidiary of the Tenant or the
Tenant's holding company (as both expressions are defined in
Section 736 Companies Act 1985)
(10) "INSURANCE COST" means in respect of any period for which the same
is required by the Landlord to be calculated the aggregate of the
amount which the Landlord may reasonably expend:-
(a) in effecting and maintaining insurance against the occurrence
of the Insured Risks in relation to the Building in such sum as
represents its then full current replacement cost with such
allowance as the Landlord from time to time considers
appropriate in respect of related liabilities and expenses
(including without limitation liability to pay and fees or
charges on the submission of an application for planning
permission and costs which might be incurred in complying with
any Enactment in carrying out
any replacement work and sums in respect of architects'
engineers' and quantity surveyors' and other professional fees
and incidental expenses incurred in relation to any works of
debris removal and of replacement and all VAT) and
(b) in effecting and maintaining any insurance relating to the
property owners' liability and the employer's liability of the
Landlord in relation to the Building and anything done therein
and
(c) in professional fees relating to insurance including fees for
insurance valuations carried out at reasonable intervals by an
independent insurance valuer (but no more than once in any
year) and all reasonable fees and expenses payable to advisers
in connection with effecting and maintaining insurance policies
and claims and
(d) equivalent to the total of all reasonable excess sums (being
for the avoidance of doubt the first part of any insurance
claim) which the insurers are not liable to pay out on any
insurance claim in respect of the Building and which the
Landlord or the Management Company may have expended in
replacing the damaged or destroyed parts of the Building
(11) "INSURANCE RENT" means in respect of any period for which the same
is required by the Landlord to be calculated the aggregate of:-
(a) a fair and reasonable proportion attributable to the Premises
of the Insurance Cost for the relevant period
(b) the reasonable amount which the Landlord may expend in
effecting and maintaining insurance against up to six years'
loss of the rents first and secondly hereinafter reserved and
Service Charge having regard to potential increases of rent in
accordance with schedule 4 and with any addition to the amount
insured as the Landlord may decide in respect of VAT and
(c) (without prejudice to all other provisions of this lease
relating to the use of the Premises and the vitiation of any
policy of insurance) any reasonable amount which the Landlord
may expend in paying all additional premiums and loadings on
any policy or policies of insurance required to be paid as a
result of anything done or omitted (in breach of the terms of
this lease) by the Tenant and
(d) any tax charged on any premium for any such insurance
(12) "INSURED RISKS" means loss damage or destruction whether total or
partial caused by Acts of Terrorism fire lightning explosion riot
civil commotion strikes labour and political disturbances and
malicious damage aircraft and aerial devices (other than hostile
aircraft and devices) and articles accidentally dropped from them
storm tempest flood bursting or overflowing of water tanks and
pipes impact earthquake and accidental damage to underground water
oil and gas pipes or electricity wires and cables subsidence group
slip and heave and such other usual commercial risks or perils
against the occurrence of which the Landlord may from time to time
in its reasonable discretion deem it desirable to insure subject to
such exclusions and limitations as are from time to time commonly
imposed by insurers and subject also to the exclusion of such of
the risks specifically hereinbefore mentioned as the Landlord may
in its reasonable discretion decide where insurance cover in
respect of the risk in question is not for the time being available
in the London insurance market on reasonable terms
(13) "INTEREST RATE" means a yearly rate three per cent above either the
base rate of Barclays Bank plc or such other bank (being for the
time being generally recognised as a clearing bank in the London
market) as the Landlord may from time to time use for general
banking purposes or if the base rate cannot be ascertained then
above such other rate as the Landlord may reasonably specify (and
so that whenever there is reference in this lease to the payment of
interest at the Interest Rate such interest shall be calculated on
a daily basis and compounded with quarterly rests on the usual
quarter days)
(14) "LANDLORD'S SERVICES EQUIPMENT" means all the plant machinery and
equipment (with associated Service Media) within or serving the
Building from time to time (whether or not within the Premises or
other premises let or intended to be let by the Landlord)
comprising or used in connection with the following systems (to the
extent specified in the following paragraphs of this definition):-
(i) the whole of the sprinkler system within the Building
(including sprinkler heads)
(ii) the whole of the fire alarm systems
(iii) the whole of the permanent fire fighting systems (but
excluding portable fire extinguishers installed by the
Tenant or other tenants of the Building)
(iv) the whole of the chilled water system
(v) the whole of the building management system (including the
building security system) installed by the Landlord
(vi) the central electrical supply system from the mains supply
into the Building so far as (and including) the electrical
riser busbars connecting to the distribution boards at each
level in the Building which is let or intended to be let by
the Landlord.
(vii) the whole of the air handling system and the electricity
supply and control systems for the same
(viii) the standby generators and associated cabling wiring and
duct work
but excluding in each case any "stand alone" systems installed by
the Tenant or any other tenant or occupier of the Building
(15) "LETTABLE UNIT" means any unit of accommodation forming part of the
Building which is intended by the Landlord at any material time to
be for separate occupation
(16) "NET INTERNAL AREA" has the meaning ascribed to that expression by
the Code of Measuring Practice -- Fourth Edition (RICS/ISVA 1993)
(or if there shall be no such edition or no such expression for the
time being the nearest equivalent thereto)
[GRAPHICS OMITTED]
99 BISHOPSGATE EC2
TWENTY SECOND FLOOR TOWER
[GRAPHICS OMITTED]
99 BISHOPSGATE LONDON, EC2
BUILDING PLAN
(17) "NORMAL BUSINESS HOURS" means 7.30 a.m. to 7.30 p.m. on Mondays to
Fridays inclusive (except bank holidays) subject to expansion of such
hours at the reasonable discretion of the Landlord provided that such
hours will automatically expand if any other tenant in the Building is
granted the benefit of any expanded hours
(18) "OUTSIDE NORMAL BUSINESS HOURS CHARGE" means the whole of the actual cost
to the Management Company of carrying out or providing any of the
Services at the request of the Tenant outside Normal Business Hours other
than any services which are stated to be provided 24 hours a day
(including without prejudice to the generality of the foregoing costs and
expenses in the nature of those set out in Part II of schedule 6) or in
the event of any of the Services being carried out or provided outside
Normal Business Hours to the Tenant and any other tenant or tenants of
the Building a fair proportion thereof (on a fair and reasonable basis
between the Tenant and any other tenant or occupier making use of such
Services) as reasonably determined by the Landlord. PROVIDED THAT during
the first year of the Term the cost of providing air conditioning outside
Normal Business Hours shall not exceed pounds sterling 88 per hour (in
respect of the Premises being the only user of air conditioning at the
relevant time) or pounds sterling 48 per hour per floor on the basis that
any five of floors 18, 20 and 22 to 26 of the Building are simultaneously
using such air conditioning over the whole of such floors
(19) "PERMITTED PART" means any part or parts of the Premises capable of
separate occupation
(20) "PERMITTED USE" means use as high class offices for any purpose within
Class B1(a) (but not for any other purpose within that Use Class) of the
schedule to the Town and Country Planning (Use Classes) Order 1987 and
for the avoidance of doubt use of the Premises for data processing
investor services business trading operators and investment banking
complies with this provision
(21) "PLANNING LAW" means every Enactment for the time being in force
relating to the use development and occupation of land and buildings and
every planning permission statutory consent and agreement made under any
Enactment relating to the Building
(22) "PLANS" means the plans annexed hereto and "Building Plan" means that one
of them so marked
(23) "PREMISES" means the premises described in schedule 1 and all permitted
additions alterations and improvements made to them
(24) "PUBLIC AUTHORITY" means any Secretary of State and any government
department public local regulatory fire or any other authority or
institution having functions which extend to the Premises or their use
and occupation and any court of law and the companies or authorities
responsible for the supply of water gas and electricity or any of them
and any of their duly authorised officers
(25) "REINSTATEMENT SPECIFICATION" means the specification annexed hereto or
in the event that materials listed in the specification are not
available from time to time or appropriate for use (in the Landlord's
reasonable opinion) then reference to such materials will be substituted
by reference to materials of not materially less quality which perform a
similar function PROVIDED THAT save to the extent
5
that items of plant and equipment have been altered during the
Term the Tenant shall not be required to replace existing items
of plant and equipment for new items subject to the existing
items being in good working order
(25) "REVIEW DATE" means each of:-
(a) the 24th October in the years Two thousand and one and every
fifth anniversary of that date during the Term (and the last
day of the Term)
(b) any date so stipulated by virtue of paragraph 5 of schedule
4
(26) "Services" means the services and other matters specified in
clause 6 and Part I of schedule 6
(27) "Service Media" means those parts of the Building comprising gas
water drainage electricity telephone telex signal and
telecommunications heating cooling ventilation air conditioning
fire alarm and other pipes drains sewers mains cables wires
supply lines ducts conduits flues and all other common conducting
media plant appliances and apparatus for the provision supply
control and monitoring of services to or from the Building and
other common equipment
(28) "Term" means a term of years commencing on the date hereof and
expiring on 23rd October 2011 includes any period of holding over
or extension whether by any Enactment or common law
(29) "Termination Notice" means not less than 12 months and 1 day's
prior written notice unless either:
(a) any Enactment or decision not capable of appeal on a point
of law confirming that the Tenant is not entitled to a new
tenancy on the expiration of such notice is in force or
upheld as at 22nd October 2007 (in which case not less
than 6 months prior written notice need be given); or
(b) any other tenant enters into a lease prior to September
1998 of premises comprising at least a floor of the
building within the security of tenure protections of the
Landlord and Tenant Act 1954 for a term of not less than 10
years (without break rights) and is granted right to
determine such lease on less than such 12 months' and 1
day's prior written notice (in which case the notice period
hereunder shall be reduced to such notice period as is
granted to such tenant in such circumstances)
(30) "VAT" means Value Added Tax as referred to in the Value Added Tax
Act 1994 (or any tax of a similar nature which may be substituted
for or levied instead of it by statutes)
2. INTERPRETATION
(1) Words importing the singular include the plural and vice versa
and words importing one gender include both other genders
(2) The expressions "Landlord" "Tenant" "Management Company" and
"Guarantor", wherever the context so admits include their
respective successors in title and
6
where a party comprises more than one person covenants and obligations
of that party take effect as joint and several covenants and obligations
(3) A covenant by the Tenant not to do (or omit) any act or thing also
operates as a covenant to use reasonable endeavours not to permit or
suffer it to be done (or omitted) and to prevent (or as the case may be
to require) it being done
(4) References in this lease to:-
(a) any clause sub-clause schedule or paragraph is a reference to the
relevant clause sub-clause schedule or paragraph of this lease
and clause and schedule headings shall not affect the
construction of this lease
(b) any right of (or covenant to permit) the Landlord or the Management
Company to enter the Premises shall also be construed (subject
always to the proviso to clause 4(9)) as entitling the Landlord to
remain on the Premises with or without equipment and permitting
such right to be exercised by all persons authorised by the
Landlord for as short a period as reasonably practicable and
making good all damage caused and causing as little inconvenience
as reasonably possible save where the right of entry is exercised
to remedy any breach hereunder where the Landlord only undertakes
to make good damage caused
(c) any consent licence or approval of the Landlord or words to
similar effect mean a consent licence or other approval in
writing signed by or on behalf of the Landlord and given before
the act requiring consent licence or approval
(d) the Premises (except in clause 4(15)) shall be construed as
extending where the context permits to any part of the Premises
(e) a specific Enactment includes every statutory modification
consolidation and re-enactment and statutory extension of it for
the time being in force except in relation to the Town and
Country Planning (Use Classes) Order 1987 which shall be
interpreted exclusively by reference to the original provisions
of Statutory Instrument 1987 No 764 whether or not the same may
at any time have been revoked or modified
(f) the last year of the Term includes the final year of the Term if
it shall determine otherwise than by effluxion of time and
references to the expiry of the Term include such other
determination
(5) (a) Where the context permits rents or other sums being due from
the Tenant to the Landlord or the Management Company mean that
they are exclusive of any VAT
(b) whenever the consent licence or approval of the Landlord is
required under this lease the relevant provision shall be
construed as also requiring (and any consent licence or approval
given by the Landlord shall be deemed subject to the need for)
the consent licence or approval of the Superior Landlord (for
which the Landlord shall apply at the Tenant's reasonable cost)
where the same is required under the Head Lease except that
nothing in this lease or in any consent licence or approval by
the
7
Landlord shall imply that the Superior Landlord's consent
licence or approval will not be unreasonably withheld or
delayed
(c) references to any right of (or covenant to permit) the
Landlord to enter the Premises shall extend to the Superior
Landlord and to all persons authorised by it and shall be
construed in the manner required by clause 2(4)(b) but in
relation to the Superior Landlord and those with its
authority
(d) the rights excepted and reserved in schedule 3 are also
excepted and reserved for the benefit of the Superior
Landlord
3. DEMISE AND RENTS
The Landlord at the request of the Guarantor and in consideration of the
payment by the Landlord to the Tenant of the sum of Two hundred and
eleven thousand nine hundred and fifty seven pounds (pounds sterling
211,957) paid on the date hereof (receipt of which is acknowledged by
the Tenant) DEMISES unto the Tenant ALL THAT the Premises TOGETHER WITH
the easements and rights specified in schedule 2 exercisable in common
with the Landlord and all others with its authority or otherwise from
time to time entitled thereto EXCEPT and RESERVED unto the Landlord and
all other persons authorised by it from time to time during the Term or
otherwise from time to time entitled thereto (including the Management
Company in relation to the provision of the Services) the easements and
rights specified in schedule 3
TO HOLD the Premises unto the Tenant (together with and except and
reserved as aforesaid) for the Term SUBJECT to all rights easements
covenants stipulations and other matters affecting the same and SUBJECT
to the provisions of the deeds and documents mentioned in schedule 7
YIELDING AND PAYING therefor:
FIRST yearly and proportionately for any part of a year until 24th March
1998 a peppercorn (if demanded) and thereafter until the first Review
Date (and thereafter as determined pursuant to schedule 4) the yearly
rent of Four hundred and twenty three thousand nine hundred and fourteen
Pounds (pounds sterling 423,914) exclusive of VAT (subject to clause
5(6)) payable by equal quarterly payments to be made in advance on the
usual quarter days in every year the first such payment to be made on
25th March 1998
SECONDLY as additional rent from time to time the Insurance Rent payable
on demand
THIRDLY as additional rent on demand (in addition and without prejudice
to the Landlord's right of re-entry and any other right) interest at the
Interest Rate on any sum owed by the Tenant to the Landlord whether as
rent or otherwise which is not:-
(a) received in cleared funds by the Landlord within 10 days
following the due date (or in the case of money due only on
demand within fourteen days after the date of demand) calculated
for the period commencing on the due date for payment and ending
on the date the sum and the interest is received in cleared funds
by the Landlord
(b) demanded (or if tendered is for the time being refused) by the
Landlord in circumstances where it is prudent for it not to
demand or accept any payment having regard to a breach of any of
the Tenant's obligations under this lease of
8
which the Tenant has received notice calculated for the period
commencing on the due date for payment and ending on the date the
sum (and the interest) is subsequently received by the Landlord
FOURTHLY as additional rent all VAT for which the Landlord is or may
become liable to account to H.M. Customs & Excise (or other relevant
body to whom account has for the time being to be made) on the supply by
the Landlord to the Tenant under or in connection with the provisions of
this lease or the interest created by it and of any other supplies
whether of goods or services such rent fourthly reserved to be due for
payment contemporaneously with the other rents or sums to which it
relates
AND FIFTHLY a rent equal to the Electricity Cost such rent to be payable
on demand (either annually or by instalments) as the Landlord shall
determine
4. TENANT'S COVENANTS
The Tenant covenants with the Landlord (and in respect of sub-clause
4(30) also with the Management Company) throughout the Term subject to
clause 4(15):
RENT
(1) To pay the rents reserved by this lease on the days and in the
manner set out in clause 3 without deduction or set off and
(unless for the time being the Landlord shall have required in
writing to the contrary) to pay the rent first reserved (together
with any sum in respect of the rent fourthly reserved as may be
applicable thereto) by banker's standing order to such bank as
the Landlord may from time to time nominate
VAT
(2) Subject to clause 5(6) wherever the Tenant is required to pay any
amount to the Landlord hereunder by way of reimbursement or
indemnity to pay on the production of a valid VAT invoice to the
Landlord (as applicable) in addition an amount equivalent to any
VAT incurred by the Landlord save to the extent that the Landlord
obtains credit for such VAT incurred by the Landlord pursuant to
sections 24 25 and 26 Value Added Tax Act 1994 or any regulations
made thereunder
OUTGOINGS
(3) To pay all rates taxes charges and other outgoings whatsoever now
or hereafter assessed charged or imposed upon the Premises or
upon their owner or occupier (and a proper proportion determined
by the Landlord attributable to the Premises of any rates taxes
charges and other outgoings now or hereafter assessed charged or
imposed upon the Premises in common with other premises or upon
the owners or occupiers thereof) and (to the extent the Tenant
does not pay it directly to the relevant supplier) the total cost
(including meter rents) of all water (including chilled water)
electricity and gas separately metered and/or exclusively
supplied to the Premises during the Term as reasonably determined
by the Landlord excluding (without prejudice to the rent fourthly
reserved and clause 4(2)) any tax payable by the Landlord as a
direct result of any actual or implied dealing with the reversion
of this lease or of the Landlord's receipt of income
9
COMPLIANCE WITH ENACTMENTS
(4) To comply with the requirements of all Enactments and of every Public
Authority (including the due and proper execution of any works) in
respect of the Premises their use occupation employment of personnel in
them and any work being carried out to them (whether the requirements
are imposed upon the owner lessee or occupier) and not to do or omit
anything by which the Landlord may become liable to make any payment or
do anything under any Enactment or requirement of a Public Authority
NOTICES
(5) As soon as reasonably practicable and in any event within 5 working days
of receipt of the same to give to the Landlord notice of (and a
certified copy of) any notice permission direction requisition order or
proposal made by any Public Authority and without delay to comply in all
respects at the Tenant's cost with the provisions thereof save that the
Tenant shall if so required by and at the cost of the Landlord make or
join in making such objections or representations in respect of any of
them as the Landlord may reasonably require
REPAIR
(6) To put and keep the Premises (and any works or installations made
pursuant to paragraphs 4 and 5 of Schedule 2) in good and substantial
repair and condition (damage by any of the Insured Risks excepted to the
extent that the insurance money shall not have been rendered
irrecoverable subject to clause 5(2)(b) or insufficient because of some
act or default of the Tenant or of any person deriving title under or
through it or their respective servants or agents or invitees) and to
replace whenever necessary during the Term and on expiry of the Term the
landlord's fixtures and fittings (including any fitted carpets) in the
Premises which may have become beyond economic repair with items of the
same type and quality
DECORATION AND GENERAL CONDITION AND SERVICING
(7) (a) To keep the Premises maintained to a high standard of decorative
order and finish and properly cleansed and tidy and (without
prejudice to the foregoing) as often as the same shall be
necessary (and not less frequently than once in every fifth year
of the Term but not more than once in any 18 month period) and
also in the last year of the Term to clean paint polish or
otherwise treat as the case may be all inside surfaces of wood and
metal work of the Premises usually or requiring to be painted
polished or otherwise treated with two coats at least of high
quality paint or polish vinyl wall coverings (where applicable)
or other appropriate materials in a good and workmanlike manner
(and during the last year of the Term in the colour scheme
specified and otherwise in accordance with the Reinstatement
Specification) PROVIDED ALWAYS THAT the Tenant shall not be
obliged to carry out any such decorative treatment if the need
for it is caused by damage by any of the Insured Risks to the
extent (subject to clause 5(2)(b)) that the insurance money shall
not have been rendered irrecoverable or insufficient because of
some act or default of the Tenant or of any person deriving title
under or through it or their respective servants agents or
invitees
10
(b) To clean the inside of all external window glazing in the
Premises at least once in every month using reputable contractors
(c) To enter into and maintain contracts for the regular inspection
maintenance and servicing of all fixed plant and equipment
comprised in the Premises which has or is likely to have any
impact on the Landlord's Services Equipment by reputable
contractors approved by the Landlord (such approval not to be
unreasonably withheld) and to obtain satisfactory test
certificates as may be reasonably required by the insurers and
whenever reasonably required to produce copies of such contracts
and certificates
REFUSE
(8) Not to deposit any refuse on any of the Common Parts except in areas
designated for such purpose from time to time by the Landlord and to
comply with all requirements of any Public Authority and any reasonable
regulations made by the Landlord pursuant to clause 4(27) in relation to
control over and disposal of rubbish
TO PERMIT ENTRY
(9) To permit the Landlord (and persons authorised by the Landlord) at
reasonable times in compliance with the Tenant's reasonable security
requirements on reasonable prior written notice (except in an emergency)
to enter the Premises in order to:-
(a) examine their state of repair
(b) ascertain that the covenants and conditions of this lease have
been observed
(c) take any measurement or valuation of the Premises
(d) rebuild renew cleanse alter test maintain repair inspect and make
connections to any part of the Building including the Service
Media (PROVIDED that the Landlord will procure that such entry
takes place outside Normal Business Hours where practicable)
(e) during the last six months of the Term (or at any time in the case
of a disposal of the Landlord's interest) to show the Premises to
prospective purchasers or tenants and their agents
(f) exercise the rights described in schedule 3
COMPLIANCE WITH NOTICES RELATING TO REPAIR OR CONDITION
(10) (a) To comply with any notice requiring the Tenant to remedy any
breach of its covenants
(b) If the Tenant shall not within a reasonable time comply with any
such notice to permit the Landlord and any authorised person to
enter the Premises to remedy the breach as the Tenant's agent
and at the Tenant's proper cost the Landlord making good any
damage caused
11
(c) To pay to the Landlord on demand all the proper costs and expenses
incurred by the Landlord under the provisions of this sub-clause
ENCROACHMENTS
(11) (a) To preserve all rights of light and other easements belonging to
the Premises and not knowingly to give any acknowledgment that
they are enjoyed by consent
(b) Not knowingly to do or omit anything which might subject the
Premises to the creation of any new easement and to give notice
to the Landlord forthwith of any encroachment which might have
that effect
ALTERATIONS AND REINSTATEMENT
(12) (a) Not to carry out any Development of or on the Premises nor
(without prejudice to the exclusion of structural parts from the
demise of the Premises) any works affecting any structural parts
of the Building and not to commit any waste
(b) Without prejudice to any other rights of the Landlord in respect
of areas not included in the Premises not to install or erect any
exterior lighting shade or awning or place any structure or other
thing outside the Premises
(c) Without prejudice to paragraphs (a) and (b) of this sub-clause
and subject to the provisos to this paragraph (c) not to make any
other alteration or addition to the Premises (including all
electrical and other plant and equipment and the installation and
removal of demountable partitioning) except:-
(i) in accordance with plans and specifications (adequately
describing the work in question and the manner in which the
work will be carried out) previously submitted at the
Tenant's expense in triplicate to and approved by the
Landlord (such approval not to be unreasonably withheld or
delayed PROVIDED THAT the Landlord shall respond to the
Tenant's submission within 10 working days in the case of
minor alterations (excluding any alterations which affect
any of the Landlord's Services Equipment) and if the
Landlord fails to respond within 10 working days as
aforesaid it shall be deemed to have accepted such minor
alterations AND PROVIDED FURTHER that the initial fitting
out of the Premises following the date hereof shall be
governed by the Agreement for Initial Alterations
(ii) in a manner which shall not materially and adversely affect
the Landlord's Services Equipment any Service Media or the
provision of any of the Services
(iii) in accordance with any relevant terms conditions
recommendations and regulations of any Public Authority
(and in particular in relation to any electrical
installation in accordance with the terms and conditions
laid down by the Institution of Electrical Engineers and
the Regulations of the Electricity Supply
12
Authority) and the insurance company with whom the Premises
are for the time being insured and
(iv) in a good and workmanlike manner
PROVIDED ALWAYS THAT subject to clause 4(12)(c)(i):-
(I) no such alterations or additions shall be carried out until
the Landlord has issued its consent in writing to which the
Tenant shall if required join as a party
(II) once any such alterations or additions have been carried
out the Tenant shall supply to the Landlord as-built plans
in triplicate (together with a computer aided design disk
and 35 mm slides) showing the works as carried out
(d) At the expiry of the Term to remove:-
(i) all alterations and additions made to the Premises by the
Tenant
(ii) all work done in connection with the original fitting out
by the Tenant in pursuance of the Agreement for Initial
Alterations
and to restore and make good the Premises in accordance with the
Reinstatement Specification in a proper and workmanlike manner to
the condition and design which existed before the alterations or
additions were made with all services properly sealed off
USE
(13) Not to use the Premises or any chattels in them:-
(a) for any purpose (and not to do anything in or to the Premises)
which may be or become or cause a nuisance obstruction or damage
to any person or property
(b) for a sale by auction or for any public meeting or for any
dangerous noxious noisy illegal or immoral trade business or
activity or for residential purposes and not to use the Common
Parts for the transaction of any business or
(c) (without prejudice to the preceding paragraphs of this sub-clause)
except for the Permitted Use
SIGNS
(14) (a) Not to erect any aerial satellite dish sign signboard pole
antenna wire or other apparatus on the outside of the Building
save for the right granted pursuant to paragraph 3 of schedule 2
(b) Not to affix or exhibit so as to be visible from outside the
Premises any placard sign notice fascia board or advertisement
except the approved signs referred to in paragraph 3 of
schedule 2
13
ALIENATION
(15) (a) If the Tenant at any time desires to assign the whole of the
Premises the Tenant shall first by an irrevocable unconditional
written notice ("the Tenant's Notice") served upon the Landlord
offer to surrender or assign this lease upon such financial terms
and conditions as the Tenant may desire
(b) If the Landlord wishes to accept such surrender or assignment it
shall within twenty-one days of receipt of the Tenant's Notice
serve a counter-notice ("the Counter-Notice") upon the Tenant
stating as much
(c) If the Landlord serves a Counter-Notice on the Tenant then the
Tenant shall surrender or assign (at the Landlord's option) the
Premises to the Landlord (or as the Landlord may direct) within
six months of receipt of the Counter-Notice either with vacant
possession or subject only to a permitted underletting and the
Tenant's liability hereunder shall cease in respect of any
matters arising following the date of such assignment or
surrender but without prejudice to any antecedent breaches of
covenant
(d) If the Landlord does not serve a Counter-Notice then the Tenant
must (if it wishes to assign) complete its assignment on terms
greater than 95 per cent in value of the terms and conditions
stipulated in the Tenant's Notice within six months from the date
of the Tenant's Notice and if the Tenant shall fail to complete
within such period if it still wishes to assign the whole of the
Premises it must reinstate the procedure set out in this clause
4(15)
(e) Subject to the foregoing provisions of this sub-clause 4(15) not
to assign mortgage charge or underlet or in any other manner part
with possession of any part (being less than the whole) of the
Premises or agree to do so except that the Tenant may underlet
the whole of (but not more or less than) any Permitted Part or
Permitted Parts in accordance with paragraphs (h) and (i) of this
sub-clause
(f) Subject to the foregoing provisions of this sub-clause 4(15) not
to assign underlet or otherwise part with possession of or the
whole of the Premises or agree to do so except that the Tenant
may assign or underlet the whole of the Premises in accordance
with paragraph (g) or (h) respectively of this sub-clause
(ASSIGNMENT)
(g) (i) Not to assign the whole of the Premises without first
obtaining the Landlord's consent issued within 2 months
before completion of the assignment which consent shall not
be unreasonably withheld or delayed but which may be
granted subject to any one or more of the conditions
referred to in paragraph (g)(ii) and which may be withheld
if any one or more of the circumstances referred to in
paragraph (g)(iii) exist
14
(ii) The conditions referred to in paragraph (g)(i) (which are specified for
the purposes of section 19(1A) Landlord and Tenant Act 1927) are:
AUTHORISED GUARANTEE
(a) that the Tenant shall enter into an authorised guarantee
agreement (as defined in section 16 Landlord and Tenant
(Covenants) Act 1995) with the Landlord in a form which the
Landlord reasonably requires
THIRD PARTY GUARANTEE/RENT DEPOSIT
(b) that if so reasonably required by the Landlord the proposed
assignee shall have procured covenants with the Landlord by a
guarantor or guarantors (not being the Tenant or any guarantor)
reasonably acceptable to the Landlord in a form acceptable to the
Landlord (acting reasonably);
INTRA GROUP DEALINGS
(c) if the proposed assignee is a Group Company the Tenant
shall have procured either:
(A) if the Tenant's obligations under this lease are guaranteed
by another Group Company that such Group Company covenants
with the Landlord on the same terms (mutatis mutandis) as
those contained in clause 10; or
(B) if there is no guarantor of the Tenant's obligations
under this lease and if the assignee is not at the
date of the application for consent to the proposed
assignment in the reasonable opinion of the
Landlord of financial standing equivalent to or
greater than the Tenant at the date of this lease
that the proposed assignee procures covenants by a
Group Company which is not the Tenant or the
proposed assignee and which is in the reasonable
opinion of the Landlord of financial standing
equivalent to or greater than the Tenant in the
same terms (mutatis mutandis) as those contained
in clause 10; and
(iii) The circumstances referred to in paragraph (g)(i) (which are specified
for the purposes of section 19(1A) Landlord and Tenant Act 1927) are:-
(a) where the Tenant's solicitors have not given an undertaking to
the Landlord's solicitors to pay all reasonable legal surveyor's
and management costs disbursements and VAT arising on the
application for consent to such assignment whether or not consent
is
15
granted unless the Landlord unreasonably withholds
consent in circumstances where it is required to be
reasonable; and/or
(b) where any of the rents and Interim Sum due from the
Tenant to the Landlord or the Management Company
respectively under this lease remain unpaid at the
date of the application for consent to the proposed
assignment
(UNDERLETTING)
(h) Not to underlet the whole of the Premises or any Permitted Part
(each being referred to in this paragraph as the premises) except:-
(i) to a person who before the underletting shall have
covenanted with the Landlord to observe and perform the
Tenant's obligations under this lease during the sub-term
to the extent they relate to the premises demised by the
underletting (other than the payment of rents) and a
covenant not to assign the whole of the premises without
the Landlord's consent (which shall not be unreasonably
withheld or delayed) and an unqualified covenant not to
assign part of the premises or to underlet or otherwise
part with possession or share the occupation of the
premises or any part of them
(ii) by reserving as a yearly rent without payment of a fine or
premium (in addition to the service and insurance and other
rents payable under this lease except the rent first hereby
reserved or (in the case of underletting of a Permitted
Part) a pro rata proportion of them) an amount equal to:-
(a) (in the case of an underletting of the Premises) the
then open market rack rental value of the Premises
(b) (in the case of an underletting of a Permitted Part) a
pro rata proportion of the then open market rack
rental value of the Premises
the proportion in each case being calculated by reference
to the Net Internal Area of the Permitted Part in relation
to the Net Internal Area of the Premises, in all cases such
rent to be payable by equal quarterly instalments in
advance on the usual quarter days and to be approved by the
Landlord prior to the underletting (such approval not to be
unreasonably withheld or delayed) but the amount of such
rent and the approval of the Landlord thereto may not be
used as evidence by the Tenant for the purpose of any rent
review pursuant to this lease
(iii) by a form of underlease:-
(a) by which the principal rent reserved by the
underlease is reviewed upwards only at not greater
than five year intervals during the sub-term in
accordance with the same
16
principles (mutatis mutandis) and at the times as apply to
the rent first reserved by this lease
(b) requiring the underlessee to observe and perform all- the
covenants and other provisions binding on the Tenant under
this lease (other than the covenant by the Tenant to pay
rents) to the extent they relate to the premises and
containing:-
(A) a condition for re-entry by the underlessor on
breach of any covenant by the underlessee
(B) a qualified covenant not to assign the whole of the
premises and an absolute covenant not to assign part
of the premises or to underlet or otherwise part
with possession or share the occupation of the
premises or any part of them
(iv) with the Landlord's consent issued within three months before
completion of the underletting which consent (subject to
compliance with the foregoing conditions precedent) shall not be
unreasonably withheld or delayed
(i) In relation to an underlease of a Permitted Part:-
(i) not to include in the sub-demise any part of the entrance to or
the reception area of the Premises
(ii) to except from the underlease all necessary circulation areas and
plant and equipment which will serve the Premises in common and
to reserve a separate service charge rent in respect of their
maintenance repair and renewal
(iii) not as a result of the grant to create or permit the creation of
more than four separate occupations affecting the whole of the
Premises (occupations in right of this lease counting as one
occupation)
(iv) not to grant or agree to grant the underlease without providing
for the exclusion of sections 24 to 28 inclusive of the Landlord
and Tenant Act 1954 in relation to the underlease in pursuance of
an Order duly made under section 38(4) of that Act before the
date of grant
(j) To enforce the observance and performance by every such underlessee and
its successors in title of the provisions of the underlease and not
expressly or impliedly to waive any breach of them nor vary the terms of
any underlease
(k) Not to agree any reviewed rent payable under an underlease without the
Landlord's consent and if the rent review under any underlease is to be
determined by an independent person not to agree his appointment without
the Landlord's consent (PROVIDED ALWAYS THAT the Landlord shall not
unreasonably withhold or delay any consent required under this
sub-paragraph) and to procure that any representations which
17
the Landlord may wish to make in relation to the rent review are
duly submitted to the independent person and to provide to the
Landlord promptly on the same becoming available copies of any
representations made by or on behalf of the Tenant or the
underlessee in relation to such rent review
(SHARING OCCUPATION)
(1) Not to part with or share the occupation of the Premises or any
part of them except that the Tenant may share occupation with a
company which is (but only for so long as it remains) either the
holding company of the Tenant or a majority-owned subsidiary of
the Tenant or of the Tenant's holding company (as those
expressions are defined in section 736 Companies Act 1985) so
long as the Tenant does not grant the person sharing occupation
exclusive possession (so that such company occupies as licensee
only without creating any relationship of landlord and tenant)
nor otherwise transfer or create a legal estate and the Tenant
shall notify the Landlord of the identity of each company in
occupation
REGISTRATION
(16) (a) Within twenty-one days after any disposition or devolution of
this lease or of any estate or interest in or derived out of it
to give notice in duplicate of the relevant transaction to the
Landlord for registration with a certified copy of the relevant
instrument and to pay to the Landlord a fair and reasonable fee
for each such registration of not less than twenty five pounds
(b) To register with the Landlord particulars of the determination of
every rent review under any underlease of the Premises within
fourteen days after the date of determination
PAYMENT OF COST OF NOTICES CONSENTS ETC.
(17) To pay on demand all reasonable expenses (including counsels'
solicitors' surveyors' and bailiffs' fees) properly incurred by the
Landlord in and incidental to:
(a) the preparation and service of a notice under section 146 Law of
Property Act 1925 or in contemplation of any proceedings under
section 146 or 147 of that Act notwithstanding that forfeiture is
avoided otherwise than by relief granted by the court and
(b) every reasonable step taken during or after the expiry of the
Term in connection with the enforcement of the Tenant's
obligations under this lease including the service or proposed
service of all notices and schedules of dilapidations and
(c) every application for consent licence or approval under this
lease but not if the application is unreasonably refused or
delayed or granted subject to unreasonable conditions (where such
consent is not to be unreasonably withheld or delayed)
18
MACHINERY
(18) Not to install in the Premises any plant or machinery other than usual
office equipment without the Landlord's consent which shall not be
unreasonably withheld PROVIDED ALWAYS THAT no plant or machinery shall
be installed or operated in the Premises and nothing shall be done or
omitted in them which may cause:-
(a) the efficiency of the heating ventilation air conditioning and
cooling system installed in the building to be diminished or
impaired in any way
(b) noise dust fumes smell vibration or electrical interference
affecting or having any other intrusive effect on any other part
of the Building or other adjoining property or persons outside
the Premises
OBSTRUCTION/OVERLOADING
(19) Not to obstruct:-
(a) or damage any part of the Building or exercise any of the rights
granted by this lease in a way which causes nuisance or damage
(b) any means of escape
(c) or discharge any deleterious matter into
(i) any pipe drain or other conduit serving the Premises and
(to the extent they lie within the Premises) to keep them
clear and functioning properly or
(ii) any Service Media
(d) or stop-up or darken the windows and other openings of the
Premises
nor to overload or cause undue strain to the Service Media or any other
part of the Building and in particular not to suspend any undue weight
from the ceilings or walls of the Premises and not to exceed the
following floor loadings:-
floor finishings: : 4 kN/m2 (801bs per sq.ft)
live load : 1 kN/m2 (201bs per sq.ft)
(e) any requisite notice erected on the Premises including any
erected by the Landlord in accordance with its powers under this
lease
PARKING/GOODS DELIVERY
(20) To ensure that all loading unloading deliveries and despatch of goods is
carried out only by using the service accesses and goods lifts
designated by the Landlord for the use of the Premises
PLANNING LAW AND COMPENSATION
(21) Without prejudice to clause 4(4) at all times during the Term to comply
with the provisions and requirements of Planning Law relating to or
affecting
19
(a) (i) the Premises
(ii) any operations works acts or things carried out executed done or
omitted on the Premises
(iii) the use of the Premises
(iv) the use by the Tenant of (and the exercise of any other rights
hereunder in respect of) any other parts of the building
(b) Subject to the provisions of paragraph (c) of this sub-clause as often
as occasion requires during the Term at the Tenant's expense to obtain
and if appropriate renew all planning permissions (and serve all
notices) required under Planning Law in respect of the Premises whether
for the carrying out by the Tenant of any operations or the institution
or continuance by the Tenant of any use of the Premises or any part
thereof or otherwise
(c) Not without the Landlord's consent (such consent not to be unreasonably
withheld or delayed) to apply for any planning permission relating to the
Premises (and not to apply for any such planning permission relating to
any other part of the Building) but so that subject to compliance with
paragraph (e) of this sub-clause the Landlord's consent shall not be
unreasonably withheld or delayed to the making of a planning application
in respect of the Premises relating to any operations or use or other
thing (if any) which assuming it to be implemented in accordance with
Planning Law would otherwise not be in breach of the provisions of this
lease
(d) If the Landlord so requires in connection with any relevant proposal by
the Tenant to apply for a determination under section 191 or 192 Town
and Country Planning Act 1990
(e) If the Landlord consents in principle to any application by the Tenant
(which it hereby agrees to consider and determine with all due
expedition) for planning permission to submit a draft of the application
to the Landlord for its approval and to give effect to its reasonable
requirements in respect thereof and if and to the extent the Landlord so
requires to lodge the application with the relevant authority in the
joint names of the Landlord and the Tenant and in duplicate
(f) Not to implement any planning permission before the Landlord has
acknowledged that its terms are acceptable nor before the Landlord has
received any cash or other security which it reasonably requires for
compliance with any conditions imposed by the planning permission
(g) If the Landlord at the Landlord's cost reasonably requires or the Tenant
desires to lodge and progress diligently an appeal against any refusal
of an application for planning permission lodged in respect of the
Premises by the Tenant or by any person claiming under or through the
Tenant (whether or not lodged in its name alone) the Landlord undertakes
to cooperate fully with the Tenant in respect of any such appeal unless
such
20
appeal would be likely to have a material and adverse effect on
the Landlord's interests in the Building
(h) Unless the Landlord otherwise directs to complete before the
expiry of the Term all works on the Premises required as a
condition of any planning permission implemented by the Tenant or
by any person claiming under or through it
(i) If the Tenant receives or is entitled to receive any statutory
compensation under any Enactment in relation to its interest in
the Premises the Tenant shall on any determination of its
interest prior to the expiry of this lease by effluxion of time
forthwith make such provision as is just and equitable for the
Landlord to receive its due benefit from such compensation
INDEMNITY
(22) To indemnify the Landlord against all expenses proceedings costs claims
damages demands and any other liability or consequence arising out or in
respect of any breach of any of the Tenant's obligations under this
lease (including all costs reasonably incurred by the Landlord in an
attempt to mitigate any such breach) or of any act omission or
negligence of the Tenant or any person at the Premises with the Tenant's
authority
DEFECTIVE PREMISES
(23) On becoming aware of the same (or when the Tenant ought reasonably to
have become aware of the same) to give notice forthwith to the Landlord
of any defect in the Premises which might give rise to:-
(a) an obligation on the Landlord to do or refrain from doing anything
in relation to the Premises or
(b) any duty of care or the need to discharge such duty imposed by the
Defective Premises Act 1972 or otherwise
and at all times to display and maintain all notices which the Landlord
may from time to time reasonably require to be displayed at the Premises
in relation to their state of repair and condition
INSURANCE AND FIRE FIGHTING EQUIPMENT
(24) (a) Not to do or omit anything by which any insurance policy
(relevant extracts of which shall have been provided to the
Tenant) relating to the Building or any part of it becomes void
or voidable or by which the rate of premium on such policy may be
increased
(b) To comply with all proper requirements of the insurers and to
provide and maintain unobstructed appropriate operational fire
fighting equipment and fire notices on the Premises
(c) To notify the Landlord forthwith of:-
21
(i) any incidence of any Insured Risk on the Premises and of
any other event which ought reasonably to be brought to the
attention of insurers and of which the Tenant ought
reasonably to be aware
(ii) the insurable value of any fixture installed in the
Premises by the Tenant or any person claiming under or
through the Tenant
(d) That if at any time the Tenant or any person claiming under or
through it shall be entitled to the benefit of any insurance of
the Premises to cause all money paid under such insurance to be
applied in making good the loss or damage in respect of which it
was paid
(e) Subject to clause 5(2)(b) if the whole or any part of the
Building is damaged or destroyed by any of the Insured Risks at
any time during the Term and the insurance money under any
insurance policy effected by the Landlord is rendered wholly or
partially irrecoverable because of some act or default of the
Tenant or any person deriving title under or through the Tenant
or their respective servants agents or invitees forthwith to pay
the Landlord the whole amount of the insurance money so
irrecoverable
DANGEROUS AND CONTAMINATIVE MATERIALS
(25) Not to keep place store or use or permit or suffer to be kept placed
stored or used in or upon or about the Premises any materials substance
or other thing of a dangerous inflammable combustible explosive
corrosive or offensive nature or any materials substance or other thing
which may in any way cause pollution injury or harm by percolation
corrosion contamination migration release or otherwise on beneath or in
the vicinity of the Premises
YIELD UP
(26) (a) At the expiry of the Term to remove all chattels and tenant's
fixtures and quietly to yield up the Premises reinstated in
accordance with the Reinstatement Specification and restored and
made good to the extent required under clause 4(12)(d) and in the
state of repair condition decorative order and layout otherwise
required by this lease and any licences or consents issued in
pursuance of it and to make good any damage so caused in a proper
and workmanlike manner
(b) The Tenant irrevocably authorises the Landlord to remove and
dispose of any chattels which may be left in the Premises within
28 days after the Tenant has quit them (without being obliged to
obtain any consideration for the disposal) and the Tenant
irrevocably declares that any such chattels will stand abandoned
by it
REGULATIONS AND COVENANTS
(27) To comply with:-
(i) all reasonable regulations reasonably made by the Landlord
from time to time and notified to the Tenant in writing for
the good management of the Building PROVIDED ALWAYS THAT
no such regulations shall purport to amend the terms
expressed in
22
this lease and if there is any inconsistency between
the terms of this lease and the regulations the terms
of this lease shall prevail
(ii) all covenants stipulations and other matters
affecting the Premises and not to interfere with any
rights easements or other matters affecting the
Premises
SECURITY AND ACCESS
(28) To use all reasonable endeavours to ensure that the Tenant's
visitors to the Premises observe such security regulations which
may apply to them
HEAD LEASE
(29) (a) To observe and perform the covenants and conditions on
the part of the lessee contained in the Head Lease so far
as they relate to the Premises except the covenant for the
payment of rent and except also so far as the obligations
relating to insurance fall to be observed and performed by
the Landlord pursuant to clause 5(2)
(b) Not to do or omit any act or thing which would or might
cause the Landlord to be in breach of the Head Lease
SERVICE CHARGE
(30) To pay the Service Charge (and VAT thereon) to the Management
Company at the times and in the manner provided for in clause 6
and schedule 5 without deduction or set off and to pay the
Outside Normal Business Hours Charge within 10 days of demand
(either annually or by monthly instalments) as the Management
Company shall reasonably determine PROVIDED THAT for the period
from the date hereof until the earlier of 25th June 1997 and the
date on which the Tenant commences full beneficial occupation of
the Premises following the works contemplated by the Agreement
for Initial Alterations the Service Charge payable by the Tenant
in any Accounting Period shall not exceed pounds sterling 32,196
inclusive of VAT and PROVIDED FURTHER that the Service Charge
payable in respect of the twelve month period from the earlier of
25th June 1997 and the date on which the Tenant commences full
beneficial occupation of the Premises following the works
contemplated by the Agreement for Initial Alterations shall be
pounds sterling 74,587.40 exclusive of VAT
5. LANDLORD'S COVENANTS
The Landlord covenants with the Tenant:
QUIET ENJOYMENT
(1) That if the Tenant observes and performs its covenants contained
in this lease the Tenant may peaceably hold and enjoy the
Premises without any lawful interruption by the Landlord or any
person rightfully claiming through under or in trust for it
23
INSURANCE
(2) (a) To keep the Building (except all tenants' plant and equipment
and trade fixtures) insured against the Insured Risks in the full
current replacement cost
(b) to use reasonable endeavours to procure that the interest of the
Tenant is noted on the insurance policy and to use reasonable
endeavours to further procure that the insurers waive any rights
of subrogation against the Tenant (or any lawful subtenant
occupier or invitee) and the Landlord will notify the Tenant if
it is unable so to procure and will duly consider the
representations of the Tenant regarding alternative insurers who
may be prepared to procure that the insurers waive any subrogation
rights and/or note the interest of the Tenant and will also permit
the Tenant to make representations to the insurers regarding the
noting of the Tenant's interest and/or waiver of rights of
subrogation
(c) On request to supply the Tenant (but not more frequently than once
in any period of twelve months) with evidence of such insurance
(d) If and whenever during the Term the Building (except as aforesaid)
is damaged or destroyed by an Insured Risk and to the extent that
payment of the insurance monies is not refused because of any act
neglect default or omission of the Tenant or of any person
deriving title under or through the Tenant or their respective
servants agents and invitees subject to clause 5(2)(b) above the
Landlord will with all convenient speed take the necessary steps
to obtain any requisite planning permissions and consents
and if they are obtained to lay out the money received from the
insurance of the Building (except sums in respect of public
liability and employer's liability and loss of rent) towards
replacing (but not necessarily in facsimile reinstatement) the
damaged or destroyed parts (except as aforesaid) and in the case
of the Premises to the Reinstatement Specification as soon as
reasonably practicable (and the Landlord shall keep the Tenant
informed of progress of any such insurance claims and the
Landlord's proposals for compliance with this provision) PROVIDED
ALWAYS THAT the Tenant shall have no claim against the Landlord
under this clause 5(2)(c) in respect of the manner of replacement
of the interior of any Lettable Unit other than the Premises or
any alteration to the Common Parts and PROVIDED FURTHER THAT the
Landlord shall not be liable to carry out the replacement if it
is unable (having used all reasonable endeavours) to obtain every
planning permission and consent necessary to execute the relevant
work in which event the Landlord shall be entitled to retain all
the insurance money received by it and if the Landlord so retains
the insurance money the Tenant shall be entitled to determine this
lease on not less than one month's prior written notice
(e) In the event that the Premises have not been reinstated to the
Reinstatement Specification or essential means of access thereto
within the Building is not available in the circumstances
contemplated in subclause 5(2)(d) by the date five years and
eleven months following the date of such damage or destruction by
an Insured Risk the Tenant may
24
determine this lease on not less than one month's prior written
notice such notice to be served (if at all) within one month
after expiry of such five years and eleven months period
HEAD LEASE
(3) (a) To pay the rents reserved by the Head Lease and to perform so far
as the Tenant is not liable for such performance under the terms
of this lease but so far only as to preserve the existence of this
lease the covenants and conditions on the part of the lessee
contained in the Head Lease
(b) On the request and at the reasonable expense of the Tenant to
take all reasonable steps to enforce the covenants on the part of
the Superior Landlord contained in the Head Lease
(c) To take all reasonable steps at the Tenant's reasonable expense
(to the extent possible under the Head Lease) to obtain the
consent of the Superior Landlord wherever the Tenant makes
application for any consent required under this lease where the
consent of both the Landlord and the Superior Landlord is needed
by virtue of this lease and the Head Lease
ELECTRICITY PROVISION
(4) Subject to clause 7(3) to use all reasonable endeavours to provide or
procure the provision of electricity to the Premises to the extent
necessary to meet the requirements of the Tenant having regard to the
overall electricity services design standards for the Building as a
whole and to all relevant statutory provisions from time to time
regulating the supply and utilisation of electricity and the terms and
conditions relative thereto from time to time imposed by the electricity
provider chosen by the Landlord
MANAGEMENT COMPANY ACCESS
(5) To allow the Management Company such rights over the Building as it
requires from time to time for the due and proper provision of the
Services
VAT INDEMNITY
(6) The provisions of schedule 8 shall apply in relation to VAT liability on
the rent first reserved and:-
(a) Whenever VAT is properly chargeable in respect of any supply made
hereunder by the Landlord to the Tenant the Landlord shall no
later than thirty days after the due date for payment in respect
of such supply issue a valid VAT invoice or audit note (as the
case may be to the Tenant)
(b) Subject to (6)(c) below all consideration payable by the Landlord
to the Tenant shall be exclusive of VAT which the Landlord shall
pay in addition on production of a valid VAT invoice
(c) The capital sum referred to in clause 3 above shall be inclusive
of VAT save that if the Landlord is at any stage able to-recover
such VAT the Landlord shall pay to the Tenant a further amount
equal to VAT on the capital sum
25
NAMING RIGHTS
(7) The Landlord shall only name the Building in accordance with its
postal address from time to time
NOTIFICATION OF NOTICES
(8) The Landlord will inform the Tenant as soon as reasonably
practicable but in any event within 5 working days of receipt of
the same of any notice served by the Superior Landlord alleging a
breach of the Head Lease which would threaten the existence of
this lease
6. PROVISION OF SERVICES
The Management Company covenants with the Tenant to use all reasonable
endeavours:-
(1) Well and substantially to repair and properly clean and decorate
the structure of the Building (including the structure of the
roofs foundations external and internal walls and columns and
structural slabs of the ceilings and floors) the external
surfaces of the Building (including the whole of the glazing
within the external walls of the Building) and the Common Parts
and (where consistent with an obligation to repair) to replace
the same
(2) To keep the Service Media designed for common or general use and
the Landlord's Services Equipment in good and substantial repair
and in clean condition and at all times in good and safe working
order
(3) To keep the lifts in the Building clean and in good and
substantial repair and condition and at all times in good and
safe working order
(4) Provide heat and air conditioning and chilled water to the
Premises (subject to the Tenant paying Outside Normal Business
Hours Charge in relation to the provision of such services
outside Normal Business Hours) such heat being sufficient to
maintain an air temperature in the Premises measured at the main
trunk connections to the floor as follows:
Air Conditioning and Heating
Design Parameters:
External Conditions:
Summer 29 Degrees Celsius DB 20 Degrees Celsius WB
Winter -4 Degrees Celsius DB 100% relative humidity
Internal Conditions Office
Accommodation -
Summer 22 Degrees Celsius DB + 1 Degree Celsius
Winter 20 Degrees Celsius DB minimum
Humidity Office Accommodation -
26
Summer 50% +/- 10%
Winter 50%+/- 10%
(5) To ensure that the Common Parts are at all times kept clean tidy and
unobstructed
(6) Subject to clause 7(3) and clause 7(6) to provide or procure the
provision of electricity to the Premises and each and every part thereof
designed to receive the same to the extent necessary to meet the
reasonable requirements of the Tenant and other lawful occupiers of the
Premises
(7) To comply with the requirements of any statute (already or in the future
to be passed) or any government department local authority other public
or competent authority or court of competent jurisdiction relating to the
Building or any part for which any tenant or occupier of the Building is
not directly or exclusively liable
(8) To ensure that at all times (meaning for the avoidance of doubt 24 hours
a day during the Term) there are both such security officers at and
patrolling the Building as is reasonably appropriate for premises of the
same size and nature as the Building and that the main reception to the
Building is properly and adequately manned
(9) To provide or procure the provision of:-
(a) the Services during Normal Business Hours; and
(b) such of the Services outside Normal Business Hours as in the
Management Company's reasonable discretion are appropriate to
provide to a high class office building in the City of London
outside Normal Business Hours; and
(c) such of the Services outside Normal Business Hours as the Tenant
shall previously request (but subject to the Tenant being
responsible for the Outside Normal Business Hours Charge)
(having regard in all cases to and in accordance with the overall design
standards for the Building as a whole and subject to the limitations
contained in Clause 7(6)) in an efficient and economic manner and in
accordance with good estate management provided that the Management
Company shall be entitled to employ such managing agents professional
advisers contractors and other persons as it shall from time to time
reasonably think fit for the purpose of the performance of the Services
PROVIDED THAT the Management Company shall not be liable for:-
(without prejudice to the provisions of clause 7(3)) any closure of any of the
Common Parts or interruption in the provision of the Services or stoppage or
severance affecting any of the Service Media or any interruption to the supply
of electricity to the Premises or the Common Parts or temporary closure or
diversion of any of the Common Parts or Service Media by reason of necessary
inspection repair maintenance or replacement thereof or any part thereof or
any plant machinery equipment installations or apparatus used in connection
therewith or damage thereto or destruction thereof by any risk
27
(whether or not an Insured Risk) or by reason of electrical mechanical
or other defect or breakdown or frost or other inclement conditions or
shortage of fuel materials supplies or labour or whole or partial
failure or stoppage of any mains supply due to any circumstances beyond
the control of the Management Company PROVIDED ALWAYS that the
Management Company shall use all reasonable endeavours to minimise the
adverse effects of any such circumstances and to remedy any such
interruption closure or diversion as soon as reasonably practicable
PROVIDED FURTHER that in the event of the Landlord or the Management
Company being unable to provide air conditioning or electricity to the
Premises in such circumstances the Tenant shall be entitled to carry out
(the Landlord and Management Company affording the Tenant reasonable
access to do so) all necessary remedial works to such electricity or air
conditioning PROVIDED THAT:
(a) the Tenant shall carry out such works in a good and workmanlike
manner and make good all damage caused causing as little
inconvenience to the Landlord Management Company and other
tenants as reasonably practicable
(b) the Landlord or the Management Company shall be responsible for
the costs of the Tenant in carrying out such remedial works when
such works are being carried out as a consequence of any breach
of the Landlord's or Management Company's covenants hereunder
7. PROVIDED ALWAYS AND IT IS HEREBY AGREED AND DECLARED THAT:-
FORFEITURE AND RE-ENTRY
(1) Without prejudice to any other remedies and powers contained in
this lease or otherwise available to the Landlord if
(a) the whole or part of the rents shall be unpaid for
twenty-one days after becoming payable (whether or not
formally demanded) or
(b) any of the Tenant's covenants in this lease are not
performed or observed in the manner and at the times
herein specified or
(c) the guarantee granted by the Guarantor or any other
guarantor of the Tenant's obligations is or becomes
unenforceable (in whole or in part) for any reason
whatsoever and no suitable alternative security is provided
to the Landlord within a period of one month or
if the Tenant (or if more than one person any one of them):-
(d) being a company enters into liquidation whether voluntarily
(except for reconstruction or amalgamation of a solvent
company) or compulsorily or has a provisional liquidator or
a receiver (including an administrative receiver) appointed
or its directors pass a resolution to petition for an
administration order or one or more of them swears an
affidavit in support of such a petition or is the subject
of an administration order or a petition for one or of a
voluntary arrangement or a proposal for one under Part I
Insolvency Act 1986
(e) being a company incorporated outside the United Kingdom is
the subject of any proceedings or event analogous to those
referred to in clause 7(1)(d) in the country of its
incorporation
28
(f) being an individual is the subject of a bankruptcy petition or
bankruptcy order or of any application or order or appointment
under section 253 or section 273 or section 286 Insolvency Act
1986 or otherwise becomes bankrupt or insolvent or dies
the Landlord may at any time thereafter (and notwithstanding the waiver
of any previous right of re-entry) re-enter the Premises without
prejudice to the Tenant's right to relief against forfeiture whereupon
this lease shall absolutely determine but without prejudice to either
partys right of action against the other in respect of any antecedent
breach of the covenants in this lease
LETTING SCHEME USE AND EASEMENTS
(2) No letting or building scheme exists or shall be created in relation to
the Building and (subject only to those easements expressly granted by
this lease) neither the Tenant nor the Premises shall be entitled to any
easement or quasi-easement whatsoever and nothing herein contained or
implied shall give the Tenant the benefit of or the right to enforce or
to have enforced or to prevent the release or modification of any right
easement covenant condition or stipulation enjoyed or entered into by
any tenant of the Landlord in respect of property not demised by this
lease or prevent or restrict the development or use of the remainder of
the Building or any other land
COMMON PARTS AND SERVICE MEDIA
(3) Subject always to the rights of the local authority the relevant supply
authorities and any other competent authority the Common Parts and the
Service Media are at all times subject to the exclusive control and
management of the Landlord who may from time to time (if it shall be
necessary or reasonable to do so for the benefit of the Building or
otherwise in keeping with the principles of good estate management)
alter divert substitute stop up or remove any of them (leaving available
for use by the Tenant reasonable and sufficient means of access to and
egress from and servicing for the Premises)
SERVICE OF NOTICES
(4) (a) In addition to any other mode of service any notices to be served
under this lease shall be validly served if served in accordance
with section 196 Law of Property Act 1925 as amended by the
Recorded Delivery Service Act 1962 or (in the case of any notice
to be served on the Tenant) by sending it to the Tenant at the
Premises PROVIDED THAT whilst the Tenant hereunder is Donaldson
Lufkin & Jenrette International Limited such notice shall also be
served on the offices for the time being of SJ Berwin & Co
(attention: Edward Page) or such other firm of solicitors
notified in writing to the Landlord and 277 Park Avenue New York
New York 10172
(b) If the Tenant or any guarantor comprises more than one person it
shall be sufficient for all purposes if notice is served on one
of them but a notice duly served on the Tenant will not need to
be served on any guarantor
29
RENT CESSER
(5) If and whenever during the Term:-
(a) the Premises (other than the Tenant's plant and equipment and
tenant's fixtures) or the means of access to the Premises within
the Building are damaged or destroyed by any of the Insured Risks
so that the Premises are incapable of beneficial occupation and
use and
(b) subject to clause 5(2)(b)the insurance of the Building or the
payment of any insurance money has not been vitiated by the act
neglect default or omission of the Tenant or of any person
deriving title under or through the Tenant their respective
servants agents and invitees
the rent first reserved by this lease and the Service Charge or a fair
proportion of them according to the nature and extent of the damage
sustained shall be suspended and cease to be payable from the date of
destruction or damage until whichever is the earlier of the date on
which the Premises are reinstated to the Reinstatement Specification and
if applicable the essential means of access within the Building are
available and the date of expiry of the period for which insurance of
loss of rent is effected and any dispute about such suspension shall be
referred to the award of a single arbitrator to be appointed in default
of agreement on the application of the Landlord or the Tenant to the
President for the time being of The Royal Institution of Chartered
Surveyors in accordance with the Arbitration Acts 1950 and 1979
LANDLORD'S LIABILITY
(6) The Landlord shall not be liable for (without prejudice to the
provisions of clause 7(3)) any closure of any of the Common Parts or
stoppage or severance affecting any of the Service Media or any
interruption to the supply of electricity to the Premises or temporary
closure or diversion of any of the Common Parts or Service Media by
reason of necessary inspection repair maintenance or replacement thereof
or any part thereof or any plant machinery equipment installations or
apparatus used in connection therewith or damage thereto or destruction
thereof by any risk (whether or not an Insured Risk) or by reason of
electrical mechanical or other defect or breakdown or frost or other
inclement conditions or shortage of fuel materials supplies or labour or
whole or partial failure or stoppage of any mains supply due to any
circumstances beyond the control of the Landlord PROVIDED ALWAYS that
the Landlord shall use all reasonable endeavours to minimise the adverse
effects of any such circumstances and to remedy any such interruption
closure or diversion as soon as reasonably practicable PROVIDED FURTHER
that in the event of the Landlord or the Management Company being unable
to provide air conditioning or electricity to the Premises in such
circumstances the Tenant shall be entitled to carry out (the Landlord
and Management Company affording the Tenant reasonable access to do so)
all necessary remedial works to such electricity or air conditioning
PROVIDED THAT:
(a) the Tenant shall carry out such works in a good and workmanlike manner
and make good all damage caused causing as little inconvenience to the
Landlord Management Company and other tenants as reasonably practicable)
30
(b) the Landlord or the Management Company shall be responsible for the
costs of the Tenant in carrying out such remedial works when such works
are being carried out as a consequence of any breach of the Landlords or
Management Company's covenants hereunder
ARBITRATION FEES
(7) The fees of any arbitrator incurred in any arbitration proceedings
arising out of this lease may be paid to the arbitrator by the Landlord
or by the Tenant notwithstanding any direction or prior agreement as to
liability for payment and any sums so paid for which the party who pays
them initially is not ultimately liable shall be repayable on demand by
the party who is liable for them
RENT REVIEW MEMORANDUM
(8) Forthwith after every agreement or determination of any increase in the
amount of the rent reserved and made payable by virtue of schedule 4 a
memorandum recording the increase shall be attached to this lease and to
the counterpart and such memorandum shall be signed by or on behalf of
the Landlord and the Tenant respectively
NO WARRANTY AS TO USE
(9) Nothing contained in this lease shall constitute or be deemed to
constitute a warranty by the Landlord that the Premises are authorised
under Planning Law to be used or are otherwise fit for any specific
purpose
DISPUTES
(10) (a) Any dispute between the Tenant and any other tenant or occupier
of any part of the Building relating to any easement or right
affecting the Building or any part of it shall (unless the
Landlord shall by notice to the parties concerned renounce its
power to determine it) be referred to the Landlord whose decision
acting reasonably (acting in the capacity of an expert) shall be
binding upon the parties to the dispute but the Landlord shall
give written reasons for his decision
(b) Where any issue (other than one relating to a rent review)
arising out of or under or relating to the Head Lease which also
affects or relates to the provisions of this lease is to be
determined as provided in the Head Lease the determination of
such issue pursuant to the provisions of the Head Lease shall be
binding on the Tenant as well as the Landlord for the purposes
both of the Head Lease and this lease
COMPENSATION
(11) Except where any Enactment prohibits the right to compensation being
reduced or excluded by agreement, neither the Tenant nor any occupier of
the Premises shall be entitled on quitting them to claim from the
Landlord any compensation under the Landlord and Tenant Act 1954
31
RATEABLE VALUE APPEALS
(12) (a) If the Landlord or the Tenant intends to make a
proposal to alter the entry for the Premises in the local
non-domestic rating list it shall notify the other party of
its intention and shall incorporate in the proposal such
proper and reasonable representations as may be made by or
on behalf of that party
(b) The Tenant shall not agree the level of rates liability
attributable to the Premises following the date hereof
without the Landlord's consent (such consent not to be
unreasonably withheld or delayed) PROVIDED that for
the avoidance of doubt the Landlord shall not be entitled to
refuse its consent to any level of rates which the Tenant
has negotiated with the appropriate rating authority which
is lower than any level of rates negotiated by or on behalf
of the Landlord in respect of the Building on a pro rata
basis
NO WARRANTY AS TO SECURITY
(13) Nothing contained in this lease (and no exercise of any of the
Landlord's powers under this lease) shall constitute or be deemed
to constitute a warranty by the Landlord that the Premises shall
be kept secure or that any security service to the Common Parts
shall be effective
JURISDICTION
(14) This lease shall be governed by and construed in all respects in
accordance with the law of England and for the benefit of the
Landlord the English courts shall have exclusive jurisdiction in
relation to disputes arising under or connected with this lease
and the Tenant agrees that any process may be served on it by
leaving a copy of the relevant document at the Premises provided
however that the Landlord shall retain the right at its sole
election to sue the Tenant elsewhere including in the courts of
the Tenant's domicile
OVERRIDING LEASE
(15) If at any time during the Term the Landlord shall grant a tenancy
of the reversion immediately expectant on the determination of
this lease whether pursuant to Section 19 Landlord and Tenant
(Covenants) Act 1995 or otherwise any covenant on the part of the
Tenant to obtain the consent of the Landlord under this lease to
any dealing shall be deemed to include a further covenant also to
obtain the consent of the lessor under such tenancy to such
dealing
8. LANDLORD'S GUARANTOR
(1) The Landlord's Guarantor at the request of the Landlord and in
consideration of the Tenant agreeing to take this lease covenants
and agrees with the Tenant that all of the Landlord's obligations
contained in this lease will be performed and observed in the
manner and at the times herein specified and that if there is
default in performing and observing any of the Landlord's
obligations (notwithstanding any time or indulgence granted by
the Tenant to the Landlord or compromise, neglect or
forbearance on the part of the Tenant in enforcing the observance
of the Landlord's obligations in this lease) the Landlord's
Guarantor
32
will observe and perform (or procure the performance and
observance of) the obligations in respect of which the Landlord
shall be in default
(2) The Landlord's Guarantor at the request of the Management Company
and in consideration of the Tenant agreeing to pay the Service
Charge covenants and agrees with the Tenant that all of the
Management Company's obligations contained in this lease will be
performed and observed in the manner and at the times herein
specified and that if there is default in performing and observing
any of the Management Company's obligations (notwithstanding any
time or indulgence granted by the Tenant to the Management Company
or compromise, neglect or forbearance on the part of the Tenant in
enforcing the observance of the Management Company's obligations
in this lease) the Landlord's Guarantor will observe and perform
(or procure the performance and observance of) the obligations in
respect of which the Management Company shall be in default
9. TENANT'S OPTION TO DETERMINE
(1) The Tenant may (subject to compliance with the provisions of this
clause) determine this lease as at 24th October 2008
(2) If the Tenant wishes so to determine the Tenant shall give to the
Landlord the Termination Notice such notice to expire on 24th
October 2008
(3) If the Tenant duly serves the Termination Notice it shall procure
that vacant possession of the Premises will be available on
24th October 2008 free of occupation by and of any estate or
interest rested in the Tenant or any third party and this lease
shall not determine as a result of any notice served by the
Tenant if the Tenant is in material breach of any of its covenant
to pay the rents and Interim Sum contained in this lease
(including those contained in this sub-clause) as at
24th October 2008 except to the extent if at all the Landlord in
its absolute discretion waives compliance with any of them
10. GUARANTEE AND GUARANTOR'S INDEMNITY
The Guarantor at the request of the Tenant and in consideration of the
grant of this lease covenants and agrees with the Landlord and during
the Term and any period of holding over continuation or extension
thereof whether by an Enactment common law or otherwise (subject to
clause 4(15)):-
(1) The rents reserved by this lease (whether or not ascertained as
to amount) will be duly paid and that all the Tenant's
obligations contained in it will be performed and observed in the
manner and at the times herein specified and that if there is any
default in paying the rents or in performing and observing the
Tenant's obligations (notwithstanding any time or indulgence
granted by the Landlord to the Tenant or compromise neglect or
forbearance on the part of the Landlord in enforcing the
observance and performance of the Tenant's obligations in this
lease or any refusal by the Landlord to accept rents tendered by
or on behalf of the Tenant) the Guarantor will observe and
perform the obligations in respect of which the Tenant shall be
in default and will on demand and on a full indemnity basis pay
to the Landlord an amount equivalent to the rents or other
amounts not paid and/or any loss damage costs charges expenses or
any other liability incurred or suffered by the Landlord as a
result of the default (and in the event of non-payment shall pay
interest at the Interest Rate from the date of demand to the
33
Guarantor until the date of payment) and will otherwise indemnify and
hold harmless the Landlord against all actions claims costs damages
demands expenses losses and proceedings arising from or incurred by the
Landlord as a result of such non-performance or non-observance
(2) If any liquidator or other person having power to do so disclaims this
lease or if it shall be forfeited or if the Tenant ceases to exist and
if the Landlord by written notice served within three months after the
date of disclaimer or forfeiture or the Landlord having actual knowledge
of the cesser of existence of the Tenant (each a "Trigger Event")
requires the Guarantor to accept a lease of the Premises for a term
computed from the date of the Trigger Event to the date on which the
Term would have expired by effluxion of time and at the same rents and
subject to the same covenants stipulations conditions and provisions
(except that the Guarantor shall not be required to procure that any
other person is made party to that lease as guarantor) as are reserved
by and contained in this lease immediately before the Trigger Event and
with coincidental Review Dates (the said new lease and the rights and
liabilities thereunder to take effect as from the date of such Trigger
Event) the Guarantor shall forthwith accept such lease accordingly and
execute and deliver to the Landlord a counterpart of it and indemnify
the Landlord upon demand against the costs incurred on the grant of the
new lease
(3) The liability of the Guarantor hereunder shall not be released reduced
affected or prejudiced by reason of:-
(a) any variation or waiver of or addition to the terms of this lease
or any of them agreed between the Landlord and the Tenant or
(b) the surrender by the Tenant of part of the Premises (in which
event the liability of the Guarantor shall continue in relation
to the Tenant's obligations in respect of the part of the
Premises not so surrendered) or
(c) any legal limitation immunity disability incapacity occurrence of
insolvency or the winding-up of the Tenant or
(d) (without limitation to the foregoing) of any other act or thing
act or thing by which (but for this provision) the Guarantor
would have been discharged or released (in each case in whole or
in part) from liability under this guarantee and indemnity
or any combination of any two or more of such matters
(4) If a Trigger Event occurs and for any reason the Landlord does not
require the Guarantor to accept a new lease of the Premises in
accordance with clause 8(2) the Guarantor shall pay to the Landlord on
demand (in addition to any other loss damage costs charges expenses or
other liability which the Guarantor may be required to make good
hereunder and without prejudice to any other rights of the Landlord) an
amount equal to the rents which would have been payable hereunder but
for such Trigger Event (so far as such rents do not otherwise continue
to be payable) for the period commencing on the date of such Trigger
Event and ending on whichever is the earlier of the date one year after
the date of such Trigger Event and the date (if any) upon which rent is
first payable in respect of the whole of the Premises on a reletting
thereof
34
(5) Without prejudice to the rights of the Landlord against the Tenant the
Guarantor shall be a principal obligor in respect of its obligations
under this clause and not merely a surety and accordingly the Guarantor
shall not be discharged nor shall its liability hereunder be affected by
any act or thing or means whatsoever by which its said liability would
not have been discharged if it had been a primary debtor
(6) The Guarantor shall pay all reasonable charges (including legal and
other costs on a full indemnity basis) incurred by the Landlord in
relation to the Landlord's enforcement of this guarantee and indemnity
against the Guarantor or for enforcing payment by the Guarantor of
amounts indemnified by it hereunder
(7) The Landlord may at its option enforce the terms of this guarantee and
indemnity against the Guarantor without having first enforced the
covenants and terms of this lease against the Tenant and also without
first having recourse to any other rights or security which the Landlord
may have obtained in relation to this lease
(8) The Guarantor shall not be entitled to participate in any security held
by the Landlord in respect of the obligation of the Tenant under this
lease or to any right of subrogation in respect of any such security
until all the obligations owed to the Landlord by the Tenant and the
Guarantor hereunder have been fully and unconditionally fulfilled and
discharged
(9) The Guarantor shall not claim in any liquidation bankruptcy composition
or scheme of arrangement in respect of the Tenant in competition with
the Landlord and if and to the extent that it receives the same shall
remit to (and until remission shall hold in trust for) the Landlord all
and any monies received from any liquidator trustee receiver or out of
any composition or arrangement or from any supervisor thereof until all
the obligations of the Tenant and the Guarantor hereunder owed to the
Landlord have been fully and unconditionally fulfilled and discharged
(10) This guarantee and indemnity shall enure for the benefit of the
Landlord's successors in title under this lease without the necessity
for any assignment thereof
(11) While Donaldson, Lufkin & Jenrette International Limited remains the
Tenant this guarantee and indemnity shall only apply if and for so long
as the total shareholders funds and reserves of Donaldson, Lufkin &
Jenrette International Limited are or fall below the value of Fifty
million pounds (pounds sterling 50,000,000) AND Donaldson, Lufkin &
Jenrette International Limited and Donaldson, Lufkin & Jenrette Inc.
shall notify the Landlord at the beginning of each period in which
this guarantee and indemnity applies and again when it ceases to apply
AND for the avoidance of doubt this guarantee (subject to compliance by
the Tenant with clause 4(15)) shall automatically cease on any lawful
assignment of this lease (but without prejudice to either party's
rights against the other in respect of any antecedent breaches of this
lease) unless in the circumstances contemplated by clause 4(15)(g)(ii)(b)
it is reasonable for Donaldson Lufkin & Jenrette Inc. to remain the
guarantor hereunder of the liabilities of Donaldson, Lufkin & Jenrette
International Limited PROVIDED FURTHER that Donaldson, Lufkin & Jenrette
Inc shall in such circumstances automatically be released on a second
assignment of this lease
35
11. STAMP DUTY CERTIFICATE
It is hereby certified that there is no agreement for lease to which
this lease gives effect
IN WITNESS whereof this Deed has been executed by the parties hereto and is
intended to be and is hereby delivered on the date first above written
36
SCHEDULE 1
(THE PREMISES)
ALL THOSE office premises situate on the twenty-second floor and being part of
the Building which are shown on the Plans and thereon verged red for
identification purposes only ALL which premises include:-
(a) the plaster linings and other interior coverings and facing materials of
all walls and of any columns within or bounding the said premises
(b) the screed the raised floor the fixed and unfixed floor coverings and
all materials lying between the upper surface of the structural floor
slab and the raised floor surface
(c) the ceilings including all materials forming part of them lying and the
void space (if any) above such ceilings but below the lower surface of
the structural ceiling slab
(d) all non-load bearing walls lying within the said premises
(e) all plant and other apparatus and conducting media which are designed to
serve the said premises exclusively including any which the Landlord may
permit under clause 4(14) and whose operation does not have any impact
on the central building systems
(f) the following items supplied and fitted by the Landlord:-
(i) venetian horizontal perforated blinds on the inside of the
external windows of the Premises
(ii) electricity check meter
but exclude:-
(i) all Service Media and Landlord's Services Equipment and
(ii) the load bearing structure of the Building including the load bearing
structure of the roofs foundations external and internal walls and
columns and the structural slabs of the ceilings and floors and
(iii) the external surfaces of the Building and the whole of the window
glazing and window frames and other fenestration units constructed in
the external walls and in the other boundaries of the said premises
SCHEDULE 2
(EASEMENTS AND RIGHTS GRANTED)
1. The right in connection with the Permitted Use subject to the provisions
of clause 7(3) and subject to compliance with all reasonable rules and
regulations in connection with the exercise of such right as may be
prescribed from time to time by the Landlord:-
(1) for the Tenant its employees servants and duly authorised agents
invitees and visitors for the purpose only of ingress and egress
to and from the Premises to use the Common Parts and to use all
means of escape but only when needed in an emergency and
(2) to use the Service Media
37
2 The right of support shelter and protection for the Premises from any
adjoining or neighbouring parts of the Building as enjoyed by the
Premises at the date of this lease
3. The right to have displayed the name or trading style of the Tenant and
any authotised sub-tenants or permitted occupiers (subject to a maximum
of four names at any particular time) on the signboard in the entrance
lobby of the Building provided by the Landlord pursuant to paragraph 14
of Part I of schedule 6 and the right to install a sign displaying the
name of the Tenant at the entrance to the Premises the precise location
size and style of such sign to be subject to the approval of the
Landlord (such approval not to be unreasonably withheld or delayed)
4 The right to install a supplementary air conditioning system and UPS
within the 14th floor plant area in the Building in a manner and in a
location to be approved by the Landlord such approval not to be
unreasonably withheld or delayed (in accordance with the provisions of
clause 4(12)) and a right of access to such 14th floor plant area at all
reasonable times on reasonable prior notice (save in the case of
emergency) for repair and maintenance and PROVIDED that on determination
of the Term the Tenant shall remove any such installation and reinstate
the plant room area to the reasonable satisfaction of the Landlord
(making good all damage caused in such removal)
5. The right to use and to have reasonable access for repair and
maintenance (on reasonable prior written notice to the Landlord) those
works or installations within or on the Building (but outside the
Premises) for which consent has been given pursuant to the Agreement for
Initial Alterations
6. The exclusive right to use the lavatories on the same floor as the
Premises subject to free access for the tenant of the 21st floor unless
the tenant of the 21st floor has agreed to forego the right of access
subject to the Tenant being responsible for all elements of Service Cost
relating to such toilets should any other tenant of accommodation in the
Building object to meeting any proportion of Service Cost in relation to
such facilities (on the basis of such exclusive use)
SCHEDULE 3
(EXCEPTIONS AND RESERVATIONS)
1. The right to build alter or extend (whether vertically or laterally) any
building notwithstanding that the access of light and air or either of
them to the Premises and the lights windows and openings thereof may be
affected
2. The right at reasonable times on reasonable prior written notice (except
in an emergency where no notice need be given) to enter upon the
Premises as often as may be necessary for the purpose of complying with
the covenants of the Head Lease for all the purposes for which the
Tenant covenants in this lease to permit entry and for all purposes in
connection with the carrying out of the Services and for the purposes of
complying with any statutory requirements
3 The right to use and to construct inspect maintain repair divert and
otherwise alter stop up and relay and to make connections to any Service
Media in on or under the Premises at any time during the Term for the
benefit of any other part of the Building or any adjacent or
neighbouring land
38
4. The right to erect and maintain scaffolding on or against any part of
the Building so long as reasonable and sufficient means of access to and
egress from and servicing the Premises are maintained
5. All rights of light air and other easements and rights (but without
prejudice to those expressly granted by this lease) enjoyed by the
Premises from or over any other part or parts of the Building or any
adjacent or neighbouring land
6. The right of support protection and shelter for the benefit of other
parts of the Building from the Premises
7. The right for one or more members of any security staff employed by the
Landlord or its agents at any time or times on reasonable prior notice
(save in the case of emergency where no notice is required) to enter the
Premises if it shall be considered necessary or desirable so to do in
connection with the security of the Building
8. The right for the tenant or occupier of any other part of the Building
authorised by the Landlord having first given reasonable written notice
to the Tenant at reasonable times in the daytime and at any time and
without notice in case of emergency to enter the Premises for the
purpose of repairing that other part of the Building making good any
damage so caused to the reasonable satisfaction of the Tenant
9. The rights reserved to the Superior Landlord (by covenant or by express
reservation) in the Head Lease
PROVIDED ALWAYS THAT if the Landlord or its employees or the persons
authorised by the Landlord exercises any of the rights by carrying out work on
the Premises it shall cause as little inconvenience as possible and as soon as
reasonably practicable make good any damage caused to them unless the right
has been exercised because of some breach by the Tenant or by any person
claiming through it
SCHEDULE 4
(THE FIRST RESERVED RENT AND THE REVIEW THEREOF)
1. In this schedule the following expressions have the respective specified
meanings:-
(1) "Current Rent" means the amount of the yearly rent first reserved
by this lease payable immediately before the relevant Review Date
(2) "Review Rent" means the yearly market rent which might reasonably
be expected to be payable following the expiry of any period at
the beginning of the term which might be negotiated in the open
market for the purposes of fitting out during which no rent or a
concessionary rent is payable or following the payment of any
capital sum or fitting out contribution which might be negotiated
in the open market for the purposes of fitting out (and on the
assumption that the lessee has had the benefit of such rent free
or concessionary rent period or capital sum or fitting out
contribution and has used the same fully to fit out the Premises
for the Permitted Use to the lessee's particular requirements) if
the Premises had been let in the open market by a willing lessor
to a willing lessee with vacant possession on the relevant Review
Date without fine or premium for a term often years computed from
the relevant Review Date taking Into account the lessee's right
at the expiration of the term to be granted a new tenancy under
Part II Landlord and Tenant Act 1954 and otherwise upon the
provisions (save as to the
39
amount of the rent first reserved by this lease but including the
provisions for rent review at five-yearly intervals) contained in
this lease and on the assumption if not a fact that the said
provisions have been fully complied with and on the further
assumptions that:-
(a) the Permitted Use and the Premises comply with Planning Law
and every other Enactment free from any onerous condition
restriction and limitation and that the lessee may lawfully
implement and carry on the Permitted Use
(b) no work has been carried out to the Premises which has
diminished their rental value
(c) in case the Building or any part of it has been destroyed
or damaged it has been fully restored
(d) the Premises have been fitted out to no less standard than
that set out in the Reinstatement Specification
but disregarding any effect on rent of:-
(i) the fact that the Tenant or any underlessee or other
permitted occupier or their respective predecessors in
title has been or is in occupation of the Premises
(ii) any goodwill attached to the Premises by the carrying on in
them of the business of the Tenant or any underlessee or
their respective predecessors in title or other permitted
occupier
(iii) (without prejudice to paragraphs 1(2)(b) and 1(2)(c) of
this schedule) any works carried out to the Premises during
the Term by the Tenant or any permitted underlessee in
either case at its own expense in pursuance of a licence
granted by the Landlord where required and otherwise than
in pursuance of any obligation to the Landlord
(iv) the works carried out to the Premises by the Tenant or
carried out by the Landlord at the expense of the Tenant
pursuant to the Agreement for Initial Alterations
(3) "Review Surveyor" means an independent chartered surveyor
appointed pursuant to paragraph 3(1) of this schedule and if to
be nominated by or on behalf of the President for the time being
of the Royal Institution of Chartered Surveyors the said
President to be requested to nominate an independent chartered
surveyor having not less than ten years practice in the City of
London next before the date of his appointment and recent
substantial experience in the letting and valuation of office
premises of a similar character and quality to those of the
Premises and who is a partner or director of a leading firm or
company of surveyors having specialist market and valuation
knowledge of such premises
2. The yearly rent first reserved and payable from each Review Date until
the next following Review Date or (in the case of the period commencing
on the last Review Date during the Term) until the expiry of the Term
shall be the higher of:-
40
(1) the Current Rent (ignoring for this purpose any rent cesser
pursuant to clause 7(5)) and
(2) the Review Rent
3. If the Landlord and the Tenant shall not have agreed the Review Rent by
the date three months before the relevant Review Date it shall (without
prejudice to the ability of the Landlord and the Tenant to agree it at
any time) be assessed as follows:-
(1) the Review Surveyor shall (in the case of agreement about his
appointment) be forthwith appointed by the Landlord or the Tenant
to assess the Review Rent or (in the absence of agreement at any
time about his appointment) be nominated to assess the Review
Rent by or on behalf of the President for the time being of The
Royal Institution of Chartered Surveyors on the application of
the Landlord or the Tenant
(2) Unless the Landlord and the Tenant agree that the Review Surveyor
shall act as an expert (which after the appointment has been made
they may not do save with the consent also of the Review
Surveyor) he shall act as an arbitrator and the arbitration shall
be conducted in accordance with the Arbitration Acts 1950 and
1979
(3) If the Review Surveyor is appointed as an expert he shall be
required to give notice to the Landlord and the Tenant inviting
each of them to submit to him within such time limits as he shall
stipulate a proposal for the Review Rent supported (if so desired
by the Landlord or the Tenant) by any or all of:-
(i) a statement of reasons
(ii) a professional rental valuation and (separately and later)
(iii) submissions in respect of each other's statement of reasons
and valuation
but he shall not be bound thereby and shall make the
determination in accordance with his own judgment (including any
determination concerning any party's liability for the costs of
the reference to him) save in respect of points of law
(4) If the Review Surveyor whether appointed as arbitrator or expert
refuses to act or is or becomes incapable of acting or dies the
Landlord or the Tenant may apply to the President for the further
appointment of another Review Surveyor
4. If the Review Rent has not been agreed or assessed by the relevant
Review Date the Tenant shall:-
(1) continue to pay the Current Rent on account and
(2) pay the Landlord within seven days after the agreement or
assessment of the Review Rent the amount (if any) by which the
Review Rent for the period commencing on the relevant Review Date
and ending on the quarter day following the date of payment
exceeds the Current Rent paid on account for the same period plus
interest at three per cent below the Interest Rate for each
installment of rent due on and after the relevant Review Date on
the difference between what would have been paid on that rent day
had the Review Rent been
41
fixed and the amount paid on account (the interest being payable
from the date on which the installment was due up to the date of
payment of the shortfall)
5. If any Enactment restricts the right to review rent or to recover an
increase in rent otherwise payable then when the restriction is
released the Landlord may at any time within six months after the date
of release give to the Tenant not less than one month's notice requiring
an additional rent review as at the next following quarter day which
shall for the purposes of this lease be a Review Date
SCHEDULE S
(THE SERVICE CHARGE)
1. In this schedule:
"ACCOUNTING PERIOD" means the period from and including 1st January to
and including 31st December in any year or such other period of twelve
months as the Management Company shall reasonably determine from time to
time
"EXPERT" means a chartered surveyor experienced in the administration
and apportionment of service charges for buildings similar to the
Building as agreed upon by the Management Company and the Tenant or on
failure to agree appointed at the request of either party by the
President Provided that where an Expert has previously been agreed or
appointed in relation to any matter in connection with the Service Cost
or the allocation of the Service Cost between the tenants of the
Building (whether or not pursuant to the terms of this Underlease) the
Management Company or the Tenant shall be entitled if reasonable to
require that the same Expert be appointed
"INTERIM SUM" means a fair and reasonable yearly sum assessed by the
Management Company acting reasonably on account of the Service Charge
for each Accounting Period being a fair and reasonable estimate of the
Service Charge payable by the Tenant in respect of that Accounting
Period
"RESERVE" means the total of the amounts received by the Management
Company in respect of the matters referred to in paragraph 2(B) of this
schedule
"SERVICE CHARGE" means the proportion or proportions of the Service Cost
attributable to the Premises determined in accordance with the
provisions of this schedule payable from the date hereof
"SERVICE CHARGE CERTIFICATE" means a certificate showing the Service
Cost and Service Charge for each Accounting Period served pursuant to
paragraph 5 of this schedule and prepared by the Management Company's
surveyor or auditor
"SERVICE COST" means the total sum calculated in accordance with
paragraph 2 of this schedule
2. The Service Cost shall be the total of:-
(A) the reasonable cost properly incurred by the Management Company
in any Accounting Period in carrying out or procuring the
carrying out of the Services and providing each item of the
Services including (without prejudice to the generality of the
foregoing) the costs and expenses set out in Part II of schedule
6 (insofar as the same are reasonable and properly incurred) and
any other
42
reasonable costs and expenses properly incurred by the Management
Company or with the Management Company's authority in connection
with the Services but excluding for the avoidance of doubt
(i) any costs attributable to the provision of any of the
Services outside Normal Business Hours at the specific
request of the Tenant (which shall be charged direct to the
Tenant) or of any other tenant or tenants of the Building
and
(ii) any Value Added Tax which the Management Company may incur
of and incidental to the provision of the Services and
which is recoverable as input tax by the Management Company
(iii) any cost or expense incurred in making good any damage
caused by any of the Insured Risks
(B) an amount (to be revised annually by the Management Company at its
reasonable discretion) to be charged in any Accounting Period as a
contribution to the establishment and maintenance of a reserve
towards the estimated cost to the Management Company of the
provision of the Services such amount to be ascertained on the
assumption (inter alia) that the cost of replacement of items of
plant machinery equipment and other capital items is calculated
on such life expectancy of the said items as the Management
Company may from time to time reasonably determine to the intent
that a fund be accumulated sufficient to cover the cost of
replacement of the said items by the end of their anticipated
life
PROVIDED THAT nothing herein contained shall oblige the Management
Company to maintain the Reserve or a reserve sufficient to cover the
whole of the cost of replacement of any plant machinery equipment or
other capital items and provided further that any expenditure on any
items in respect of which any sums shall have been included in the
Reserve during an Accounting Year shall at the Management Company's
reasonable discretion as to the amount thereof if any be met out of the
Reserve AND PROVIDED THAT in respect of any costs or expenses not
incurred exclusively in connection with the provision or carrying out of
the Services a fair proportion only of such costs and expenses shall be
included in the Service Cost
3. (A) The Service Charge payable by the Tenant for any Accounting
Period shall be a fair proportion of the Service Cost
attributable to the Premises from time to time as properly
determined by the Management Company (and so in proportion for
any Accounting Period not falling wholly within the Term the
Service Cost in any such case being deemed to accrue on a day to
day basis for the purpose of apportionment)
(B) If at any time and from time to time during the Term the method
or basis of calculating or ascertaining the cost of any item of
the Services shall alter or the basis of calculating or
ascertaining the Service Cost in relation to any item of the
Services shall change and as a result it is reasonable that there
be an alteration or variation of the calculation of the Service
Charge in order to achieve a fairer and better apportionment of
the Service Cost amongst the tenants of the Building then
and in every such case the Management Company shall vary and
amend the Service Charge and make appropriate adjustments
thereto provided always that in the event of any dispute between
the Management Company and the Tenant and the other tenants of
the Building or any of them the same shall be referred to the
43
Expert for determination (the Expert to act as an expert and not
as an arbitrator) whose decision shall save in the case of
manifest error be binding on the parties (including his decisions
as to the responsibility for his costs)
(C) The fair proportion to be determined by the Management Company in
paragraph 3(A) above shall be determined on the basis that all
accommodation within the Building let or occupied or designed
contracted or adapted for letting or occupation (other than
management accommodation) is fully let on terms which include
service charge provisions consistent with the service charge
provisions contained in this lease (save where otherwise specified
herein) and such proportion shall not be increased or altered by
reason of the fact that at any time any part of such accommodation
may be vacant or that any tenant or other occupier of any other
part of the Building may default in payment of its due proportion
of the Service Cost
4. (A) The Tenant shall pay to the Management Company the Interim Sum
without deduction by equal quarterly instalments in advance on the
usual quarter days unless the Management Company shall reasonably
anticipate that amounts to be incurred during the year immediately
next following are anticipated as being incurred in accordance
with a programme of non equal expenditure in which event the
Management Company shall serve notice to such effect upon the
Tenant and shall thereupon be entitled to require amounts of the
Interim Sum to be paid by advance quarterly instalments of unequal
amounts reasonably stipulated by the Management Company
(B) The Management Company shall be entitled to require as part of the
Interim Sum payments in advance on account of the cost of the
consumption of and supply charges in respect of electricity
consumed within the Premises (save for any amounts which are
invoiced directly by London Electricity plc to the Tenant) such
sums not to exceed a fair and proper estimate of amounts
reasonably anticipated by the Management Company as falling due
within the next quarter
(C) If the Tenant consistently requests the provision of any of the
Services outside Normal Business Hours the Management Company
shall be entitled in addition to require the Tenant to pay along
with payments of the Interim Sum a fair and proper estimate of
amounts likely to be payable by the Tenant in the next quarter on
account of such Services in accordance with the terms of this
lease
(D) The Interim Sum for the Accounting Period ending 31st December
1996 shall be pound sterling 74,000
(E) Either before or as soon as practicable after the commencement of
every Accounting Period the Management Company shall serve or
cause to be served on the Tenant written notice of the Interim Sum
for the relevant Accounting Period Provided that without prejudice
to the provisions of paragraphs 6 and 7 of this schedule if the
written notice aforesaid shall be served after the first occurring
quarter day in the relevant Accounting Period the Tenant shall
until service of the written notice aforesaid make payments on
account of the Interim Sum for the relevant Accounting Period on
the days and in the manner provided by sub-paragraph (A) of this
paragraph of this schedule at an annual rate equal to the Interim
Sum for the immediately preceding Accounting Period
44
5. (A) As soon as practicable after the expiry of every Accounting Period
(and in any event within 4 months after such expiry) the
Management Company shall serve or cause to be served a Service
Charge Certificate on the Tenant for the relevant Accounting
Period
(B) A Service Charge Certificate shall contain a summary of the
Service Cost in respect of the Accounting Period to which it
relates and the relevant calculations showing the Service Charge
(C) The Tenant may request further details of the breakdown of the
expenditure under any particular item or items shown in a Service
Charge Certificate by giving notice thereof in writing to the
Management Company within three months of the date of service on
the Tenant of the relevant Service Charge Certificate and upon
receipt of such a notice the Management Company shall furnish to
the Tenant all such relevant details in its possession or control
or which can reasonably be obtained by it as relate to the
expenditure under the item or items in question at the cost of the
Tenant (include all books of account receipts demands and
invoices) PROVIDED ALWAYS that notwithstanding the giving of any
such notice the Tenant shall nevertheless pay all Interim Sums and
Service Charges as and when they fall due or as may be underpaid
from time to time (but without prejudice to any challenge claim or
dispute that the Tenant may have made or may make in the future in
respect of its Service Charge liability or otherwise)
6. Within fourteen days after the service on the Tenant of a Service Charge
Certificate showing that the Service Charge for any Accounting Period
exceeds the Interim Sum for that Accounting Period the Tenant shall
(without prejudice to any challenge claim or dispute as aforesaid) pay
to the Management Company or as it shall direct a sum equal to the
amount by which the Service Charge exceeds the Interim Sum provided that
and the Tenant hereby acknowledges that if there shall be any such
excess in respect of the Accounting Period the amount of such excess
shall be a debt due from the Tenant to the Management Company and in the
event that such excess is not received in cleared funds by the
Management Company within 14 days of the due date for payment it shall
attract interest at the Interest Rate calculated for the period
commencing on the due dates for payment and ending on the date the sum
is subsequently received by the Management Company notwithstanding that
the Term may have expired or been determined before the service by or on
behalf of the Management Company of the relevant Service Charge
Certificate
7. If in any Accounting Period the Service Charge is less than the Interim
Sum for that Accounting Period a sum equal to the amount which the
Interim Sum exceeds the Service Charge shall be accumulated by the
Management Company and shall be applied in or towards the Service Charge
for the next following Accounting Period or Accounting Periods or at or
after the end of the Term repaid to the Tenant within 14 days after
preparation of the Service Charge Certificate and the event that the
excess is not received by the Tenant on the due date for payment it
shall attract interest at the Interest Rate for the period commencing as
the due date for payment and ending on the date that the sum due is
received in cleared funds by the Tenant
8. Unless challenged by the Tenant pursuant to the provisions of paragraph
9 of this schedule every notice certificate calculation determination or
assessment made by or on behalf of the Management Company referred to in
this schedule shall (save where a manifest error appears) be conclusive
and binding upon the parties hereto
45
9. The Tenant (acting reasonably) may at any time within six months after
the submission of a Service Charge Certificate challenge it on any
reasonable ground (including without limitation on the ground that the
Service Charge therein stated exceeds the Service Charge which should
have been payable had the provisions of this lease been properly adhered
to) Provided that the Tenant gives notice with full particulars of its
ground of alleged challenge and in any such case:
(A) any sum due to or payable by the Management Company pursuant to
paragraphs 6 and 7 above shall still be paid or allowed pending
resolution of the Tenant's challenge as if the Service Charge
Certificate were correct
(B) the Management Company and the Tenant shall endeavour to resolve
the relevant issue but if they cannot do so the issue in dispute
shall be referred to the Expert (acting as an expert and not an
arbitrator) whose decision shall save in the case of manifest
error be binding on the parties (including his decision as to the
responsibility for his costs)
(C) such adjustments to the Service Charge Certificate as may be
required to be made in consequence of the resolution of the
dispute shall be paid as soon as reasonably practicable after
such resolution and any sum due to or payable by the Management
Company shall then be paid or allowed (as the case may be)
immediately together with interest at three per cent below the
Interest Rate on such sum during the period which it has been
underpaid or overpaid
10. All sums obtained from the Tenant and any other tenants or occupiers of
the Building towards the Service Cost and sums collected in respect of
the Reserve shall each be placed in separate interest bearing designated
deposit accounts to be applied only towards the cost of providing the
Services and all interest accrued on such deposit account shall be
credited (net of tax) to the account
11. The Management Company will account to the Landlord as soon as
practicable following expiry of each Accounting Period for that part of
the Service Charge which relates to costs directly incurred by the
Landlord and not by the Management Company including (but not limited
to) the costs referred to in paragraphs 5 7 8 9 and 12 of Part II of
schedule 6
12. If in the Management Company's reasonable discretion any of the Services
have to be provided to a greater extent (or the cost of provision of
such Services is greater) than would normally apply in the context of
the general management of the Building in accordance with this lease as
a result either:-
(a) of a specific request by the Tenant (with or without other tenants
or occupiers of accommodation in the Building); or
(b) where such provision is required in the interests of good estate
management as a result of any acts or omissions of the Tenant in
relation to its use and occupation of the Premises
then the Management Company shall be entitled to require the Tenant to
meet the cost of such provision (or a fair proportion thereof determined
by the Management Company) within 10 working days following a demand by
the Management Company
46
SCHEDULE 6
(SERVICES)
PART I
1. Inspecting maintaining repairing amending altering and (where consistent
with an obligation to repair) rebuilding and renewing and where
appropriate treating washing down painting and decorating all load
bearing and other structural parts of the Building and the relevant
parts of it described in paragraphs (ii) and (iii) of schedule 1
2. Inspecting servicing maintaining operating and repairing and (where
consistent with an obligation to repair) renewing amending overhauling
and replacing the Landlord's Services Equipment and all other apparatus
plant machinery and equipment within the Building (if any) from time to
time excluding any "stand alone" systems installed by the Tenant or any
other tenant or occupier of the Building
3. Inspecting servicing maintaining operating repairing cleansing emptying
amending altering and renewing overhauling and replacing all Service
Media
4. Keeping the Common Parts and the car park within the Building properly
cleansed decorated treated maintained and lit to such standard as the
Management Company may from time to time consider adequate but the
Common Parts and the car park shall be operational 24 hours a day 7 days
a week
5. Providing such mechanical ventilation heating and (if deemed reasonably
desirable by the Management Company) cooling for such parts of the
Building and for such hours and times of the year (subject to clause 6)
as the Management Company shall in its discretion reasonably determine
save that such mechanical ventilation heating and cooling for the lifts
lobby and entrance halls and toilets shall be provided throughout Normal
Business Hours and at the request of the Tenant outside those hours
subject to the Outside Normal Business Hours Charge
6. Providing and maintaining at the Management Company's discretion any
furniture architectural or ornamental features or murals and any
horticultural displays plants shrubs trees or garden area in the Common
Parts and maintaining the same
7. Supplying whether by purchase or hire and maintaining (and where
consistent with an obligation to repair) renewing replacing repairing
servicing and keeping in good and serviceable order and condition all
fixtures and receptacles appliances materials equipment plant and other
things which the Management Company may reasonably deem desirable or
necessary for the maintenance appearance upkeep or cleanliness of the
Building or any part of it or otherwise in connection with the provision
of the Services
8. Cleaning as frequently as the Management Company shall in its reasonable
discretion consider adequate the exterior and interior of all window
glazing and window frames and other fenestration units in the Common
Parts and the outside of the window glazing referred to in paragraph
(iii) of schedule I and the maintenance cleansing repair inspection and
(where necessary) renewal or replacement of all window cleaning) cradles
carriageways and runways
9. Providing a security service 24 hours a day to the Common Parts
(including the ground floor entrance hall at times when receptionists
are not present) and the car park within the Building including where
reasonably appropriate in the Management Company's
47
judgment closed circuit television and/or other plant and equipment for
the purpose of surveillance and supervision of users of the Building
10. Disposing of refuse from the Building (including collecting and
compacting or otherwise treating or packaging as the Management Company
reasonably thinks fit such refuse and if necessary pest control) and
(and where consistent with an obligation to repair) the provision repair
maintenance and renewal of any plant and equipment in connection
therewith
11. Maintaining 24 hours a day 7 days a week an adequate supply of hot and
cold water and supplying washing and toilet requisites in the lavatory
accommodation in the Building
12. Such rodent or other pest control in the Building as the Management
Company shall reasonably consider necessary or desirable
13. Providing one or more receptionists and/or security in the ground floor
entrance hall of the Building 24 hours a day 7 days a week
14 Providing and maintaining a signboard in the entrance lobby of the
building for the display of tenants' names
15. Controlling so far as practicable 24 hours a day 7 days a week traffic
flow within the car park in the Building and traffic 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
16. Providing and maintaining a post room facility for the reception of mail
to the Building
17. Complying with the obligations on the part of the tenant contained in
the Head Lease save for the payment of rent
18. Complying with the obligations set out in clause 6
19. Any other services relating to the Building or any part of it provided
by the Management Company from time to time which shall be:-
(1) reasonably capable of being enjoyed by the occupier of the
Premises or
(2) reasonably calculated to be for the benefit of the Tenant and
other tenants of the Building or
(3) appropriate for the maintenance upkeep or cleanliness of the
Building or
(4) otherwise in keeping with the principles of good estate management
PROVIDED ALWAYS that
(i) Where in this schedule there are references to matters or things
which are then stated to include certain particular matters or
things which are not also stated to be without prejudice to the
generality of the wording preceding it nevertheless the reference
to the particular matters or things shall be deemed to be and in
each case shall be without prejudice to the generality of the
wording preceding it
(ii) The Management Company shall subject to clause 6 when reasonable
have the right to cease or to procure the cessation of the
provision of or add to or procure
48
the addition to any item of Services matter or thing specified in
this schedule if the Management Company shall having regard to the
principles of good estate management reasonably deem it desirable
or expedient so to do but before so doing the Management Company
shall notify all the tenants in the Building but in the event of
any failure of any of the Services shall use all reasonable
endeavours to restore the said Service
(iv) The Management Company or the managing agents may temporarily
withdraw any item of Services matter or thing specified in this
schedule if in their reasonable opinion such withdrawal is in the
interest of good estate management or if such withdrawal is due to
circumstances beyond the control of the Management Company
PART II
1. All fees and disbursements of any individual or firm or company employed
or retained by or on behalf of the Management Company or its agents
(including without limitation managing agents fees) for or in connection
with:-
(1) any surveying or accounting functions for the Building and
(2) the performance of the Services or any of them and any other
duties in or about the Building or any part of it relating to the
general management administration security maintenance protection
and cleanliness of the Building
2. The reasonable fees of the Management Company for any of the Services or
for the functions and duties referred to in paragraph 1 of this Part of
this schedule which shall be undertaken by the Management Company and
not by a third party
3. The cost (in addition to any fees referred to in paragraph 2 and where
the context permits paragraph 1 of this Part of this schedule) of
employing (whether by the Management Company or any managing agents or
any other individual or firm or company) such staff as the Management
Company may in its reasonable discretion consider appropriate for the
performance of the Services and the functions and duties referred to in
paragraph 1 of this Part of this schedule and all other incidental
expenditure in relation to such employment including without prejudice
to the generality of the foregoing:-
(1) salaries wages pensions and pension contributions benefits in kind
and other emoluments and National Insurance and other statutory
contributions or levies
(2) the provision of uniforms and working clothing
(3) the provision of vehicles tools appliances cleaning and other
material fixtures fittings and other equipment for the proper
performance of their duties and a store for housing the same and
(4) a reasonable notional rent for any premises reasonably provided
rent free for every such person's use occupancy or residence
4. The cost of entering into any contracts for the carrying out of all or
any of the Services
5. All rates taxes assessments duties charges impositions and outgoings
which are now or during the Term shall be charged assessed or imposed
on:-
(1) the whole of the Common Parts or any part of them
49
(2) any residential accommodation provided for caretakers and other
staff employed in connection with the Building and any other
premises provided as referred to in paragraph 3(4) of this Part
of this schedule
excluding any tax (other than VAT) payable by the Landlord as a direct
result of any actual or implied dealing with the reversion of any Lease
or of the Landlord's receipt of income
6. The cost of the supply of water electricity gas oil and other fuel for
the provision of the Services and the cost of any electricity generating
transforming monitoring metering and distribution plant machinery and
equipment in or servicing the Building
7. The cost which the Landlord may be called upon pursuant to any Enactment
to pay as a contribution towards the expense of making repairing
maintaining rebuilding and cleansing any ways roads pavements or
structures Service Media or anything which may belong to or be used for
the Building or any part of it exclusively or in common with other
neighbouring or adjoining premises
8. The cost of taking all steps deemed desirable or expedient by the
Landlord and/or the Management Company for complying with or making
representations against or otherwise contesting the incidence of the
provisions of any Enactment relating to or alleged to relate to the
Building or any part or it for which any tenant is not directly and
exclusively liable
9. The cost to the Landlord and/or the Management Company of abating any
nuisance in respect of the Building or any part of it insofar as the
same is not the liability of any tenant
10. Any interest and fees incurred in respect of money borrowed in
unforeseen or emergency circumstances to finance the provision of the
Services and the costs referred to in this Part of this schedule or any
of them
11. Any VAT (or any tax of a similar nature which may be substituted for or
levied in addition to it) incurred by the Management Company on any
other amount comprised in the Service Cost save to the extent that the
Management Company obtains credit for such VAT incurred by the
Management Company pursuant to sections 24 25 and 26 Value Added Tax Act
1994 or any regulations made thereunder
12. A reasonable notional rent for any management accommodation provided
within the Building to facilitate the provision of the Services
13. All other reasonable actual costs properly incurred in connection with
the provision of the Services
SCHEDULE 7
(MATTERS TO WHICH THE DEMISE IS SUBJECT)
1. The entries on the registers of Title Number NGL272172 as at the date
hereof
2. Agreement dated 24th November 1995 between The Prudential Assurance
Company Limited (1) 99 Bishopsgate Limited (2) The Scottish Amicable Life
Assurance Society (3)
50
SCHEDULE 8
PROVISIONS FOR VAT INDEMNITY
PART I
1. Additional Definitions:
"TAX CREDIT" means a credit in respect of, or repayment of, input VAT,
arising by virtue of and determined in accordance with sections 24, 25
and 26 Value Added Tax Act 1994 and regulation made thereunder
"TENANT'S AUDITORS" means the auditors for the time being of the Tenant
provided that they are one of the following firms of accountants -
Deloitte Touche, Coopers and Lybrand, Ernst & Young, KPMG, Price
Waterhouse or Arthur Andersen - or such other reputable firm or
accountants as the Landlord has previously approved for the purpose of
this schedule 8 (such approval not to be unreasonably withheld or
delayed).
"VAT ELECTION" means an election under paragraph 2 of Schedule 10 Value
Added Tax Act 1994 made by the Landlord or any person of whom the
Landlord is a "Relevant Associate" within the meaning of paragraph 3(7)
of Schedule 10 or any other election or voluntary act by the Landlord or
any person connected with the Landlord (as determined under the
provisions of Section 839 of the Income and Corporation Taxes Act 1988)
which results in VAT being payable on the rent first reserved by this
lease
"VAT YEAR" means a tax year for Value Added Tax purposes determined in
accordance with Part XIV of the Value Added Tax Regulations 1995.
"VAT YEAR CERTIFICATE" means the certificate to be provided by the
Tenant following the end of the Tenant's VAT Year in the form set out in
Part II of this Schedule.
2. Payment of VAT - no VAT Election
In the event that the rent first reserved (or any part thereof)
constitutes consideration for a taxable supply for VAT purposes which
would be a taxable supply whether or not a VAT Election has effect in
respect of the Premises, the Tenant shall pay such VAT in addition to
the rent first reserved without any adjustment of rent first reserved
under this schedule.
3. Adjustment of rent first reserved and payment of VAT - VAT Election made
If and for all periods where the rent first reserved (or any part
thereof) constitutes consideration for a taxable supply for VAT purposes
which would not be a taxable supply but for a VAT Election having effect
in respect of the Premises, the rent first reserved shall be adjusted to
such amount as when aggregated with that part of the VAT chargeable
thereon in respect of which the Tenant does not obtain a Tax Credit,
equals the rent first reserved which would have been paid had no VAT
Election been made.
4. Determination of adjustment of rent first reserved
4.1 At least 28 days prior to (a) 29th September 1998 and (b) every
subsequent anniversary thereof the Tenant shall serve a VAT Year
Certificate on the Landlord. Where the Tenant has served such VAT Year
Certificate (or is deemed to have done so pursuant to paragraph 4.2 of
this Part I below), the Tenant shall pay the amounts (including the VAT)
stipulated (or deemed to be stipulated) in paragraph 3 of such VAT Year
Certificate on
51
the due date for payment of the next installment of the rent first
reserved (and on the due date for subsequent instalments), subject
however to paragraph 4.3 of this Part I below.
4.2 If the Tenant fails to serve a VAT Year Certificate at least 28 days
prior to the due date for payment of the sum in respect of which
paragraph 3 above will apply, the Tenant shall be deemed to have served
a VAT Year Certificate specifying in paragraph 1 thereof the same
estimated proportion as stated in the previous VAT Year Certificate
served, or if no previous VAT Year Certificate has been served by the
Tenant at any time prior to the due date for any VAT Year Certificate an
estimated proportion of nil per cent. If the Tenant fails to serve a VAT
Year Certificate on more than one consecutive occasion the Tenant shall
be deemed, on the second failure and any subsequent failure, until
service of the next VAT Year Certificate, to have served a VAT Year
Certificate specifying in paragraph 1 thereof an estimated proportion of
nil per cent.
4.3 The VAT Year Certificate shall be final and binding unless the Landlord
notifies the Tenant within 30 days after the date on which a VAT Year
Certificate has been served that it disputes the VAT Year Certificate on
the grounds of manifest error. Unless such notification is given, no
further adjustments (other than those covered by the VAT Year
Certificate) shall be made in respect of any instalments of rent first
reserved in the VAT Year covered by the aforementioned VAT Year
Certificate. Whether or not the Landlord notifies the Tenant that it
disputes any amount, the Tenant shall pay on the due date for payment of
the next installment of rent first reserved immediately following the
service of the VAT Year Certificate to which the dispute relates, the
amount stipulated in paragraph 3 of the VAT Year Certificate.
4.4 If the Review Rent is not agreed or determined until after a relevant
Review Date, the amount of any increase to be paid pursuant to paragraph
2 of schedule 4 of this lease shall (if paragraph 3 above applies at
that time) be adjusted on the basis of the last VAT Year Certificate.
The adjustment amount shall be paid at the time when the amount of any
unadjusted increase would have been due to be paid and the provisions of
this schedule shall apply as if the amount of the increase were an
amount to which paragraph 3 of Part I of this schedule 8 applied.
4.5 The Landlord may notify the Tenant in writing at any time within five
days of the service of any VAT Year Certificate (or within five days of
the last date on which the Tenant should have served a VAT Year
Certificate and is therefore deemed to have served one) that it requires
the Tenant to obtain a certificate from the Tenant's Auditors at the
Tenant's cost (if adjustments are required following such process) or at
the Landlord's cost (if no such adjustments are required) in the form
set out in the VAT Year Certificate. The Tenant's Auditor's certificate
shall be provided at least eight days prior to the date of payment of
the rent first reserved to which such certificate relates, together with
the Tenant's revised VAT Year Certificate (if required in order for the
Tenant's Auditors to be able to provide a certificate). The Tenant shall
pay in accordance with paragraph 4.1 above the amount stipulated in
accordance with paragraph 3 of such VAT Year Certificate (as revised, if
required) on the date for payment of the rent first reserved.
4.6 If adjustments are required pursuant to any VAT Year Certificate as a
result of the proportion of VAT for which the Tenant has obtained or
will obtain a Tax Credit differing from the proportion previously taken
into account in calculation any payment, any such difference shall be
taken into account (after having determined the amount of rent first
reserved payable in respect of the next quarter in accordance with
paragraph 3 above) in calculating the next actual payment of rent first
reserved (either by increase or
52
decrease), the amount of which shall be set out in paragraph 3 of the
VAT Year Certificate.
4.7 Interest shall be payable at three per cent below the Interest Rate by
the Landlord and three per cent below the Interest Rate by the Tenant on
the difference between the amount actually paid pursuant to the relevant
VAT Year Certificate on the due date for payment of any sum to which
paragraph 3 of Part I of this schedule 8 applies and the amount which
should have been paid, from such due date until the date of payment of
the adjusted amount pursuant to paragraph 4.3. Where the actual amount
paid (the "Initial Payment") on the due date for payment of any sum was
subsequently adjusted on payment of any later installment of the rent
first reserved ("the Adjusted Payment") in accordance with paragraph 4.6
of Part I of this Schedule 8 and paragraph 3(b) of the VAT Year
Certificate, the interest shall be calculated on the basis of the
difference between the Initial Payment and the amount which should have
been paid pursuant to paragraph 4.1 until the date of the Adjustment
Payment, and then on the difference between the Adjustment Payment and
the amount which should have been paid until payment of that amount
pursuant to paragraphs 4.3.
4.8 Following any assignment of the whole of the Premises, the provisions of
this schedule 8 shall apply to any new Tenant as if it were the first
Tenant, and a VAT Notice served by the new Tenant shall not take into
account any adjustments made, or to be made, in respect of any previous
Tenant.
5. Miscellaneous
The Tenant shall be at liberty to carry on the ordinary course of its
trade as it wishes and shall not be precluded from proposing or
accepting a method of attribution designed or maximise its Tax Credit
and covenants not to enter any arrangement which has the specific
purpose of increasing the amount by which the rent first reserved is
decreased by virtue of this schedule 8..
53
PART II
VAT YEAR CERTIFICATE
To: The Landlord From: The Tenant
We refer to paragraph 4.3 of Part I of schedule 8 to the Lease dated [ ]
made between 99 Bishopsgate Limited (1) 99 Bishopsgate Management Limited (2)
Hammerson U.K. Properties plc (3) Donaldson Lufkin & Jenrette International
Limited (4) and Donaldson Lufkin & Jenrette Inc. (5) in respect of premises on
[ ] floor of the building known as 99 Bishopsgate London EC2 and pursuant to
that paragraph:
1. Our VAT Year which included the following quarter days [ ], ended
on [ ],ended on[ ].
(a) The part of the VAT charged on the rent first reserved paid in
the VAT Year for or in respect of which we estimate/have
determined (in accordance, where relevant, with the return made,
or to be made, for the prescribed accounting period next
following the end of the VAT Year) we will be unable to obtain
credit or repayment is a proportion of [ ] per cent of the total
VAT charged.
(b) The following Table sets out the part of the VAT charged which
was expected to be irrevocable during the VAT Year where it has
been determined on the basis of paragraph 2(a) above that that
differs from the amount of VAT for or in respect of which we
actually obtained, or will be able to obtain, credit or
repayment.
Dates Rent first reserved Estimate Adjustment Determination
* ** ***
* estimate of proportion of VAT for or in respect of which we
estimated we would be unable to obtain credit or repayment as set
out initially in VAT Notice.
** adjusted estimate of proportion of VAT for or in respect of which
we estimated we would be unable to obtain credit or repayment as
set out in subsequent VAT Notice.
*** proportion of VAT for or in respect of which we have now
estimated/determined we shall be unable to obtain credit or
repayment, in accordance with Sections 24- 26 of the Value Added
Tax Act 1994 and the Value Added Tax Regulations 1995
3. We request that adjustment is made to the next installment of rent first
reserved so as to ensure that the amount of rent first reserved payable
in the VAT Year to which this VAT Year Certificate relates is as
provided in paragraph 3 of Part I of Schedule 8 to the Lease in
accordance with the information given in paragraph 2 above
and we calculate that the next installment of rent first reserved as so
adjusted shall be pounds sterling [ ] exclusive of VAT and the VAT
thereon shall be pounds sterling [ ], and that the interest payable by
the Tenant to the Landlord/Landlord to the Tenant, in accordance with
paragraph 4.7 of Part I schedule 8 to the Lease shall be pounds sterling
[ ].
4. We hereby declare that:
54
(a) we have complied with the covenant imposed upon us by paragraph
6.2 of Part I of schedule 8 to the Lease;
(b) the information contained in this VAT Notice is to the best of our
knowledge, information and belief complete and accurate;
(c) we have made all due returns to the Commissioners of Customs and
Excise and such returns are complete and accurate in all material
respects and have been made within the time limits provided by
statute.
Signed by
an authorised signatory on behalf of the Tenant
The above declaration are, to the best of our knowledge and belief after due
and careful enquiry, true, accurate and complete.
Signed by
Tenant's Auditors
55
[SEAL OMITTED] (THE COMMON SEAL of 99 BISHOPSGATE LIMITED
(LIMITED was hereunto affixed in the presence
(of:-
Director
Director
(THE COMMON SEAL of 99 BISHOPSGATE
(MANAGEMENT LIMITED was hereunto
(affixed in the presence of:-
[SEAL OMITTED] Director
Director
(THE COMMON SEAL of HAMMERSON
(U.K. PROPERTIES PLC was hereunto affixed in
(the presence of:-
[SEAL OMITTED] Director
Director
56
DATED 24th of OCTOBER 1996
99 BISHOPSGATE LIMITED
and
99 BISHOPSGATE MANAGEMENT LIMITED
and
HAMMERSON U.K. PROPERTIES PLC
and
DONALDSON, LUFKIN & JENRETTE
INTERNATIONAL LIMITED
and
DONALDSON, LUFKIN & JENRETTE, INC.
UNDERLEASE
of
Twentieth Floor 99 Bishopsgate London EC2
HERBERT SMITH
Exchange House
Primrose Street
London EC2A 2HS
Tel: 0171-374 8000
Fax:0171-496 0043
Ref: 129/P17/30433514
TABLE OF CONTENTS
CLAUSE HEADING PAGE
1. Definitions
Building
Common Parts
Development
Electricity Cost
Enactment
Head Lease/Superior Lease
Insurance Cost
Insurance Rent
Insured Risks
Interest Rate
Lettable Unit
Net Internal Area
Normal Business Hours
Permitted Part
Permitted Use
Planning Law
Plans
Premises
Public Authority
Services
Service Media
Tenant
Term
VAT
2. Interpretation
3. Demise and Rents
4. Tenant's Covenants
(1) Rent
(2) VAT
(3) Outgoings
(4) Compliance with Enactments
(5) Notices
(6) Repair
(7) Decoration and general condition and servicing
(8) Refuse
(9) To permit entry
(10) Compliance with notices relating to repair or condition
(11) Encroachments
(12) Alterations and reinstatement
CLAUSE HEADING PAGE
(13) Use
(14) Signs
(15) Alienation
(16) Registration
(17) Payment of cost of notices consents etc.
(18) Machinery
(19) Obstruction/overloading
(20) Parking/goods delivery
(21) Planning Law and compensation
(22) Indemnity
(23) Defective Premises
(24) Insurance and fire fighting equipment
(25) Dangerous and contaminative materials
(26) Yield up
(27) Regulations and covenants
(28) Security and access
(29) Head Lease
(30) Service Charge
5. Landlord's Covenants
(1) Quiet Enjoyment
(2) Insurance
(3) Head Lease
(4) Electricity Provision
(5) Management Company access
(6) VAT indemnity
6. Provision of Services
7. Provisos
(1) Forfeiture and re-entry
(2) Letting Scheme use and easements
(3) Common Parts and Service Media
(4) Service of notices
(5) Rent cesser
(6) Landlord's liability
(7) Arbitration fees
(8) Rent review memorandum
(9) No warranty as to use
(10) Disputes
(11) Compensation
(12) Rateable value appeals
(13) No warranty as to security
(14) Jurisdiction
(15) Overriding lease
(16)
CLAUSE HEADING PAGE
8. Landlord's Guarantor
9. Tenant's option to determine
10. Guarantee and Guarantor's Indemnity
11. Stamp Duty Certificate
Schedule 1 Premises
Schedule 2 Easements and rights granted
Schedule 3 Exceptions and reservations
Schedule 4 The first reserved rent and the review thereof
Schedule 5 Service Charge
Schedule 6 Services
Schedule 7 Deeds and documents to which the demise is subject
LEASE PARTICULARS
- -------------------------------------------------------------------------------
1. DATE 24th October 1996
THIS LEASE IS AND IS INTENDED TO BE DELIVERED ON THE DATE
FIRST ABOVE WRITTEN
- -------------------------------------------------------------------------------
2. PARTIES
(a) LANDLORD : 99 Bishopsgate Limited
(b) TENANT : Donaldson, Lufkin & Jenrette
International Limited
(c) MANAGEMENT COMPANY : 99 Bishopsgate Management Limited
(d) LANDLORD'S GUARANTOR : Hammerson U.K. Properties plc
(e) TENANT'S GUARANTOR : Donaldson, Lufkin & Jenrette, Inc.
- -------------------------------------------------------------------------------
3. DEMISED PREMISES : ALL THOSE premises on the 20th floor
of the Building shown for
identification only edged red on
Plan 1.
- -------------------------------------------------------------------------------
4. BUILDING : 99 Bishopsgate London EC2
- -------------------------------------------------------------------------------
5. CONTRACTUAL TERM AND : Commencing on the date hereof and
TERM COMMENCEMENT expiring on 23rd October 2011
AND EXPIRY DATES
- -------------------------------------------------------------------------------
6. INITIAL RENT : (pounds sterling) 456,195
- -------------------------------------------------------------------------------
7. RENT COMMENCEMENT DATE : 29th September 1998
- -------------------------------------------------------------------------------
8. TENANT'S BREAK RIGHT : 24th October 2008
THIS UNDERLEASE made the 24th day of October One thousand nine hundred and
ninety six
BETWEEN: -
(1) 99 BISHOPSGATE LIMITED whose registered office is at Lo Lam House Kumul
Highway Port Vila Vanuatu (Co. Regn. No. 10469) (registered under
Section 21A to the Companies Act 1985 under company number FC018588 and
branch number BR002962) whose principal place of business is at 100 Park
Lane London W1Y 4AR (the "LANDLORD")
(2) 99 BISHOPSGATE MANAGEMENT LIMITED whose registered office is at 100 Park
Lane London W1Y 4AR (Co. Regn. No. 3071752) (the "MANAGEMENT COMPANY")
(3) HAMMERSON U.K. PROPERTIES plc whose registered office is at 100 Park Lane
London W1Y 4AR (Co. Regn. No. 298351) (the "LANDLORD'S GUARANTOR")
(4) DONALDSON, LUFKIN & JENRETTE INTERNATIONAL LIMITED whose registered
office is at Moorgate Hall 155 Moorgate London EC2M 6XB (Co. Regn.
No. 2475089) (the "TENANT") and
(5) DONALDSON, LUFKIN & JENRETTE, INC. a corporation incorporated in the
State of Delaware United States of America whose address for the
purposes of this lease is 277 Park Avenue New York New York 10172 (the
"GUARANTOR")
WITNESSETH as follows:-
1. DEFINITIONS
In this lease the following expressions have the respective specified
meanings (subject to any particular interpretation required by clause
2):-
(1) "ACTS OF TERRORISM" means any act or omission of any person acting
on behalf of or in connection with any organisation (or on his own
behalf) which carries out activities directed towards overthrowing
or influencing by force or violence Her Majesty's Government in
the United Kingdom or any other government de jure or de facto
(2) "AGREEMENT FOR INITIAL ALTERATIONS" means the agreement of even
date herewith and made between the Landlord and the Tenant
governing the initial fitting out of the Premises
(3) "BUILDING" means the land (of which the Premises form part) having
a frontage to the west side of Bishopsgate and a return frontage
to the south side of Wormwood Street and all buildings fixtures
and other structures whatsoever from time to time thereon and the
appurtenances thereof which land (together with the building now
erected thereon) is known as 99 Bishopsgate London EC2 and is for
the purpose of identification shown verged by a blue line on the
Building Plan together with any adjoining areas designated by the
Landlord or the Management Company
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(4) "COMMON PARTS" means all parts of the Building which are from time
to time intended for the common use and enjoyment of the tenants
and occupiers of the Building and persons claiming through or
under them (whether or not other parties are also entitled to use
and enjoy the same) and reasonably designated as such by the
Landlord and including without prejudice to the generality of the
foregoing the pedestrian ways circulation areas lobby entrance
halls lifts lift shafts fire escapes landings staircases passages
forecourts car park landscaped areas plant rooms management suites
and any other areas which are from time to time during the Term
reasonably provided by the Landlord for common use by or benefit
of the tenants and occupiers of the Building But excluding (for
the avoidance of doubt) any premises intended to be let to any
party or for occupation by the Landlord or the Management Company
other than for the provision of the Services
(5) "DEVELOPMENT" has the meaning ascribed to that expression by
Planning Law
(6) "ELECTRICITY COST" means the actual cost to the Landlord of the
provision of electricity to the Premises for consumption by the
Tenant in accordance with its covenant contained at clause 5(4)
being a fair and reasonable proportion as determined by the
Landlord of the total cost of the provision of electricity to the
Building as a whole (including the provision of any security for
the supply of electricity to the Building which may from time to
time be required by the relevant undertaker responsible for the
supply of electricity chosen by the Landlord) which proportion
shall so far as practicable (save where the same are not in
working order) be calculated using readings taken in such manner
and at such times as the Landlord shall from time to time
determine of the check meters relating to the Premises from time
to time installed but otherwise shall be determined in such manner
as the Landlord shall in its discretion consider to be fair and
reasonable in all the circumstances
(7) "ENACTMENT" means every Act of Parliament directive and regulation
now or hereafter to be enacted or made and all subordinate
legislation whatsoever deriving validity therefrom
(8) "HEAD LEASE" means the lease under which the Landlord holds the
Premises dated 29th September 1975 made between The Prudential
Assurance Company Limited (1) and Bishopsgate Developments Limited
(2) and "Superior Landlord" means the person for the time being
entitled to the reversion immediately expectant on the term
granted by the Head Lease and every other person having an
interest in reversion to that term
(9) "GROUP COMPANY" means a company which is either the holding
company of the Tenant or a wholly owned subsidiary of the Tenant
or the Tenant's holding company (as both expressions are defined
in Section 736 Companies Act 1985)
(10) "INSURANCE COST" means in respect of any period for which the same
is required by the Landlord to be calculated the aggregate of the
amount which the Landlord may reasonably expend:-
(a) in effecting and maintaining insurance against the
occurrence of the Insured Risks in relation to the Building
in such sum as represents its
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then full current replacement cost with such allowance
as the Landlord from time to time considers appropriate in
respect of related liabilities and expenses (including
without limitation liability to pay any fees or charges on
the submission of an application for planning permission and
costs which might be incurred in complying with any
Enactment in carrying out any replacement work and sums in
respect of architects' engineers' and quantity surveyors'
and other professional fees and incidental expenses incurred
in relation to any works of debris removal and of
replacement and all VAT) and
(b) in effecting and maintaining any insurance relating to the
property owners' liability and the employer's liability of
the Landlord in relation to the Building and anything done
therein and
(c) in professional fees relating to insurance including fees
for insurance valuations carried out at reasonable intervals
by an independent insurance valuer (but no more than once in
any year) and all reasonable fees and expenses payable to
advisers in connection with effecting and maintaining
insurance policies and claims and
(d) equivalent to the total of all reasonable excess sums (being
for the avoidance of doubt the first part of any insurance
claim) which the insurers are not liable to pay out on any
insurance claim in respect of the Building and which the
Landlord or the Management Company may have expended in
replacing the damaged or destroyed parts of the Building
(11) "INSURANCE RENT" means in respect of any period for which the same
is required by the Landlord to be calculated the aggregate of:-
(a) a fair and reasonable proportion attributable to the
Premises of the Insurance Cost for the relevant period
(b) the reasonable amount which the Landlord may expend in
effecting and maintaining insurance against up to six years'
loss of the rents first and secondly hereinafter reserved
and Service Charge having regard to potential increases of
rent in accordance with schedule 4 and with any addition to
the amount insured as the Landlord may decide in respect of
VAT and
(c) (without prejudice to all other provisions of this lease
relating to the use of the Premises and the vitiation of any
policy of insurance) any reasonable amount which the
Landlord may expend in paying all additional premiums and
loadings on any policy or policies of insurance required to
be paid as a result of anything done or omitted (in breach
of the terms of this lease) by the Tenant and
(d) any tax charged on any premium for any such insurance
(12) "INSURED RISKS" means loss damage or destruction whether total or
partial caused by Acts of Terrorism fire lightning explosion riot
civil commotion
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strikes labour and political disturbances and malicious
damage aircraft and aerial devices (other than hostile aircraft
and devices) and articles accidentally dropped from them storm
tempest flood bursting or overflowing of water tanks and pipes
impact earthquake and accidental damage to underground water oil
and gas pipes or electricity wires and cables subsidence ground
slip and heave and such other usual commercial risks or perils
against the occurrence of which the Landlord may from time to time
in its reasonable discretion deem it desirable to insure subject
to such exclusions and limitations as are from time to time
commonly imposed by insurers and subject also to the exclusion of
such of the risks specifically hereinbefore mentioned as the
Landlord may in its reasonable discretion decide where insurance
cover in respect of the risk in question is not for the time being
available in the London insurance market on reasonable terms
(13) "INTEREST RATE" means a yearly rate three per cent above either
the base rate of Barclays Bank plc or such other bank (being for
the time being generally recognised as a clearing bank in the
London market) as the Landlord may from time to time use for
general banking purposes or if the base rate cannot be ascertained
then above such other rate as the Landlord may reasonably specify
(and so that whenever there is reference in this lease to the
payment of interest at the Interest Rate such interest shall be
calculated on a daily basis and compounded with quarterly rests on
the usual quarter days)
(14) "LANDLORD'S SERVICES EQUIPMENT" means all the plant machinery and
equipment (with associated Service Media) within or serving the
Building from time to time (whether or not within the Premises or
other premises let or intended to be let by the Landlord)
comprising or used in connection with the following systems (to
the extent specified in the following paragraphs of this
definition): -
(i) the whole of the sprinkler system within the Building
(including sprinkler heads)
(ii) the whole of the fire detection and fire alarm systems
(iii) the whole of the permanent fire fighting systems (but
excluding portable fire extinguishers installed by the
Tenant or other tenants of the Building)
(iv) the whole of the chilled water system
(v) the whole of the building management system (including the
building security system) installed by the Landlord
(vi) the central electrical supply system from the mains supply
into the Building so far as (and including) the electrical
riser busbars connecting to the distribution boards at each
level in the Building which is let or intended to be let by
the Landlord
(vii) the whole of the air handling system and the electricity
supply and control systems for the same
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(viii) the standby generators and associated cabling wiring and
duct work
but excluding in each case any "stand alone" systems
installed by the Tenant or any other tenant or occupier of the
Building
(15) "LETTABLE UNIT" means any unit of accommodation forming part of
the Building which is intended by the Landlord at any material
time to be for separate occupation
(16) "NET INTERNAL AREA" has the meaning ascribed to that expression by
the Code of Measuring Practice - Fourth Edition (RICS/ISVA 1993)
(or if there shall be no such edition or no such expression for
the time being the nearest equivalent thereto)
(17) "NORMAL BUSINESS HOURS" means 7.30 a.m. to 7.30 p.m. on Mondays to
Fridays inclusive (except bank holidays) subject to expansion of
such hours at the reasonable discretion of the Landlord provided
that such hours will automatically expand if any other tenant in
the Building is granted the benefit of any expanded hours
(18) "OUTSIDE NORMAL BUSINESS HOURS CHARGE" means the whole of the
actual cost to the Management Company of carrying out or providing
any of the Services at the request of the Tenant outside Normal
Business Hours other than any services which are stated to be
provided 24 hours a day (including without prejudice to the
generality of the foregoing costs and expenses in the nature of
those set out in Part II of schedule 6) or in the event of any of
the Services being carried out or provided outside Normal Business
Hours to the Tenant and any other tenant or tenants of the
Building a fair proportion thereof (on a fair and reasonable basis
between the Tenant and any other tenant or occupier making use of
such Services) as reasonably determined by the Landlord. PROVIDED
THAT during the first year of the Term the cost of providing air
conditioning outside Normal Business Hours shall not exceed 88 per
hour (in respect of the Premises being the only user of air
conditioning at the relevant time) or 48 per hour per floor on the
basis that any five of floors 18, 20 and 22 to 26 of the Building
are simultaneously using such air conditioning over the whole of
such floors
(19) "PERMITTED PART" means any part or parts of the Premises capable
of separate occupation
(20) "PERMITTED USE" means use as high class offices for any purpose
within Class B 1(a) (but not for any other purpose within that Use
Class) of the schedule to the Town and Country Planning (Use
Classes) Order 1987 and for the avoidance of doubt use of the
Premises for data processing investor services business trading
operators and investment banking complies with this provision
(21) "PLANNING LAW" means every Enactment for the time being in force
relating to the use development and occupation of land and
buildings and every planning permission statutory consent and
agreement made under any Enactment relating to the Building
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(22) "PLANS" means the plans annexed hereto and "Building Plan" means
that one of them so marked
(23) "PREMISES" means the premises described in schedule 1 and all
permitted additions alterations and improvements made to them
(24) "PUBLIC AUTHORITY" means any Secretary of State and any government
department public local regulatory fire or any other authority or
institution having functions which extend to the Premises or
their use and occupation and any court of law and the companies or
authorities responsible for the supply of water gas and
electricity or any of them and any of their duly authorised
officers
(25) "REINSTATEMENT SPECIFICATION" means the specification annexed
hereto or in the event that materials listed in the specification
are not available from time to time or appropriate for use (in the
Landlord's reasonable opinion) then reference to such materials
will be substituted by reference to materials of not materially
less quality which perform a similar function PROVIDED THAT save
to the extent that items of plant and equipment have been altered
during the Term the Tenant shall not be required to replace
existing items of plant and equipment for new items subject to the
existing items being in good working order
(26) "REVIEW DATE" means each of:-
(a) the 24th October in the years Two thousand and one and every
fifth anniversary of that date during the Term (and the last
day of the Term)
(b) any date so stipulated by virtue of paragraph 5 of schedule
4
(27) "SERVICES" means the services and other matters specified in
clause 6 and Part I of schedule 6
(28) "SERVICE MEDIA" means those parts of the Building comprising gas
water drainage electricity telephone telex signal and
telecommunications heating cooling ventilation air conditioning
fire alarm and other pipes drains sewers mains cables wires supply
lines ducts conduits flues and all other common conducting media
plant appliances and apparatus for the provision supply control
and monitoring of services to or from the Building and other
common equipment
(29) "TERM" means a term of years commencing on the date hereof and
expiring 23rd October 2011 and includes any period of holding over
or extension whether by any Enactment or common law
(30) "TERMINATION NOTICE" means not less than 12 months and 1 day's
prior written notice unless either:
(a) any Enactment or decision not capable of appeal on a point
of law confirming that the Tenant is not entitled to a new
tenancy on the expiration of such notice is in force or
upheld as at 22nd October
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[GRAPHIC OMITTED]
99 Bishopsgate EC2
Twentieth Floor Tower
[GRAPHIC OMITTED]
99 Bishopsgate EC2
Building Plan
2007 (in which case not less than 6 months prior written
notice need be given); or
(b) any other tenant enters into a lease prior to September
1998 of premises comprising at least a floor of the
building within the security of tenure protections of the
Landlord and Tenant Act 1954 for a term of not less than 10
years (without break rights) and is granted right to
determine such lease on less than such 12 months' and 1
day's prior written notice (in which case the notice period
hereunder shall be reduced to such notice period as is
granted to such tenant in such circumstances)
(30) "VAT" means Value Added Tax as referred to in the Value Added Tax
Act 1994 (or any tax of a similar nature which may be substituted
for or levied instead of it by statutes)
2. INTERPRETATION
(1) Words importing the singular include the plural and vice versa and
words importing one gender include both other genders
(2) The expressions "Landlord" "Tenant" "Management Company" and
"Guarantor" wherever the context so admits include their
respective successors in title and where a party comprises more
than one person covenants and obligations of that party take
effect as joint and several covenants and obligations
(3) A covenant by the Tenant not to do (or omit) any act or thing also
operates as a covenant to use reasonable endeavours not to permit
or suffer it to be done (or omitted) and to prevent (or as the
case may be to require) it being done
(4) References in this lease to:-
(a) any clause sub-clause schedule or paragraph is a reference
to the relevant clause sub-clause schedule or paragraph of
this lease and clause and schedule headings shall not
affect the construction of this lease
(b) any right of (or covenant to permit) the Landlord or the
Management Company to enter the Premises shall also be
construed (subject always to the proviso to clause 4(9))
as entitling the Landlord to remain on the Premises with
or without equipment and permitting such right to be
exercised by all persons authorised by the Landlord for as
short a period as reasonably practicable and making good
all damage caused and causing as little inconvenience as
reasonably possible save where the right of entry is
exercised to remedy any breach hereunder where the
Landlord only undertakes to make good damage caused
(c) any consent licence or approval of the Landlord or words
to similar effect mean a consent licence or other approval
in writing signed by or on behalf of the Landlord and
given before the act requiring consent licence or approval
7
(d) the Premises (except in clause 4(15)) shall be construed
as extending where the context permits to any part of the
Premises
(e) a specific Enactment includes every statutory modification
consolidation and re-enactment and statutory extension of
it for the time being in force except in relation to the
Town and Country Planning (Use Classes) Order 1987 which
shall be interpreted exclusively by reference to the
original provisions of Statutory Instrument 1987 No 764
whether or not the same may at any time have been revoked
or modified
(f) the last year of the Term includes the final year of the
Term if it shall determine otherwise than by effluxion of
time and references to the expiry of the Term include such
other determination
(5) (a) Where the context permits rents or other sums being due
from the Tenant to the Landlord or the Management Company
mean that they are exclusive of any VAT
(b) whenever the consent licence or approval of the Landlord
is required under this lease the relevant provision shall
be construed as also requiring (and any consent licence or
approval given by the Landlord shall be deemed subject to
the need for) the consent licence or approval of the
Superior Landlord (for which the Landlord shall apply at
the Tenant's reasonable cost) where the same is required
under the Head Lease except that nothing in this lease or
in any consent licence or approval by the Landlord shall
imply that the Superior Landlord's consent licence or
approval will not be unreasonably withheld or delayed
(c) references to any right of (or covenant to permit) the
Landlord to enter the Premises shall extend to the Superior
Landlord and to all persons authorised by it and shall be
construed in the manner required by clause 2(4)(b) but in
relation to the Superior Landlord and those with its
authority
(d) the rights excepted and reserved in schedule 3 are also
excepted and reserved for the benefit of the Superior
Landlord
3. DEMISE AND RENTS
The Landlord at the request of the Guarantor DEMISES unto the Tenant ALL
THAT the Premises TOGETHER WITH the easements and rights specified in
schedule 2 exercisable in common with the Landlord and all others with
its authority or otherwise from time to time entitled thereto EXCEPT and
RESERVED unto the Landlord and all other persons authorised by it from
time to time during the Term or otherwise from time to time entitled
thereto (including the Management Company in relation to the provision
of the Services) the easements and rights specified in schedule 3
8
TO HOLD the Premises unto the Tenant (together with and except and
reserved as aforesaid) for the Term SUBJECT to all rights easements
covenants stipulations and other matters affecting the same and SUBJECT
to the provisions of the deeds and documents mentioned in schedule 7
YIELDING AND PAYING therefor:
FIRST yearly and proportionately for any part of a year until 29th
September 1998 a peppercorn (if demanded) and thereafter until the first
Review Date (and thereafter as determined pursuant to schedule 4) the
yearly rent of Four hundred and fifty six thousand one hundred and
ninety five pounds (pounds sterling 456,195) exclusive of VAT (subject
to clause 5(6)) payable by equal quarterly payments to be made in
advance on the usual quarter days in every year the first such payment
to be made on 29th September 1998
SECONDLY as additional rent from time to time the Insurance Rent payable
on demand
THIRDLY as additional rent on demand (in addition and without prejudice
to the Landlord's right of re-entry and any other right) interest at the
Interest Rate on any sum owed by the Tenant to the Landlord whether as
rent or otherwise which is not:-
(a) received in cleared funds by the Landlord within 10 days
following the due date (or in the case of money due only on demand
within fourteen days after the date of demand) calculated for the
period commencing on the due date for payment and ending on the
date the sum and the interest is received in cleared funds by the
Landlord
(b) demanded (or if tendered is for the time being refused) by the
Landlord in circumstances where it is prudent for it not to demand
or accept any payment having regard to a breach of any of the
Tenant's obligations under this lease of which the Tenant has
received notice calculated for the period commencing on the due
date for payment and ending on the date the sum (and the interest)
is subsequently received by the Landlord
FOURTHLY as additional rent all VAT for which the Landlord is or may
become liable to account to H.M. Customs & Excise (or other relevant
body to whom account has for the time being to be made) on the supply by
the Landlord to the Tenant under or in connection with the provisions of
this lease or the interest created by it and of any other supplies
whether of goods or services such rent fourthly reserved to be due for
payment contemporaneously with the other rents or sums to which it
relates
AND FIFTHLY a rent equal to the Electricity Cost such rent to be payable
on demand (either annually or by instalments) as the Landlord shall
determine
4. TENANT'S COVENANTS
The Tenant covenants with the Landlord (and in respect of sub-clause
4(30) also with the Management Company) throughout the Term subject to
clause 4(15):
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Rent
(1) To pay the rents reserved by this lease on the days and in the manner
set out in clause 3 without deduction or set off and (unless for the
time being the Landlord shall have required in writing to the contrary)
to pay the rent first reserved (together with any sum in respect of the
rent fourthly reserved as may be applicable thereto) by banker's
standing order to such bank as the Landlord may from time to time
nominate
VAT
(2) Subject to clause 5(6) wherever the Tenant is required to pay any amount
to the Landlord hereunder by way of reimbursement or indemnity to pay on
the production of a valid VAT invoice to the Landlord (as applicable) in
addition an amount equivalent to any VAT incurred by the Landlord save
to the extent that the Landlord obtains credit for such VAT incurred by
the Landlord pursuant to sections 24 25 and 26 Value Added Tax Act 1994
or any regulations made thereunder
OUTGOINGS
(3) To pay all rates taxes charges and other outgoings whatsoever now or
hereafter assessed charged or imposed upon the Premises or upon their
owner or occupier (and a proper proportion determined by the Landlord
attributable to the Premises of any rates taxes charges and other
outgoings now or hereafter assessed charged or imposed upon the Premises
in common with other premises or upon the owners or occupiers thereof)
and (to the extent the Tenant does not pay it directly to the relevant
supplier) the total cost (including meter rents) of all water (including
chilled water) electricity and gas separately metered and/or exclusively
supplied to the Premises during the Term as reasonably determined by the
Landlord excluding (without prejudice to the rent fourthly reserved and
clause 4(2)) any tax payable by the Landlord as a direct result of any
actual or implied dealing with the reversion of this lease or of the
Landlord's receipt of income
COMPLIANCE WITH ENACTMENTS
(4) To comply with the requirements of all Enactments and of every Public
Authority (including the due and proper execution of any works) in
respect of the Premises their use occupation employment of personnel in
them and any work being carried out to them (whether the requirements are
imposed upon the owner lessee or occupier) and not to do or omit anything
by which the Landlord may become liable to make any payment or do
anything under any Enactment or requirement of a Public Authority
NOTICES
(5) As soon as reasonably practicable and in any event within 5 working days
of receipt of the same to give to the Landlord notice of (and a
certified copy of) any notice permission direction requisition order or
proposal made by any Public Authority and without delay to comply in all
respects at the Tenant's
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cost with the provisions thereof save that the Tenant shall if so
required by and at the cost of the Landlord make or join in making such
objections or representations in respect of any of them as the Landlord
may reasonably require
REPAIR
(6) To put and keep the Premises (and any works or installations made
pursuant to paragraphs 4 and 5 of Schedule 2) in good and substantial
repair and condition (damage by any of the Insured Risks excepted to the
extent that the insurance money shall not have been rendered
irrecoverable subject to clause 5(2)(b) or insufficient because of some
act or default of the Tenant or of any person deriving title under or
through it or their respective servants or agents or invitees) and to
replace whenever necessary during the Term and on expiry of the Term the
landlord's fixtures and fittings (including any fitted carpets) in the
Premises which may have become beyond economic repair with items of the
same type and quality
DECORATION AND GENERAL CONDITION AND SERVICING
(7) (a) To keep the Premises maintained to a high standard of decorative
order and finish and properly cleansed and tidy and (without
prejudice to the foregoing) as often as the same shall be necessary
(and not less frequently than once in every fifth year of the Term
but not more than once in any 18 month period) and also in the last
year of the Term to clean paint polish or otherwise treat as the case
may be all inside surfaces of wood and metal work of the Premises
usually or requiring to be painted polished or otherwise treated with
two coats at least of high quality paint or polish vinyl wall
coverings (where applicable) or other appropriate materials in a good
and workmanlike manner (and during the last year of the Term in the
colour scheme specified and otherwise in accordance with the
Reinstatement Specification) PROVIDED ALWAYS THAT the Tenant shall
not be obliged to carry out any such decorative treatment if the need
for it is caused by damage by any of the Insured Risks to the extent
(subject to clause 5(2)(b)) that the insurance money shall not have
been rendered irrecoverable or insufficient because of some act or
default of the Tenant or of any person deriving title under or through
it or their respective servants agents or invitees
(b) To clean the inside of all external window glazing in the Premises
at least once in every month using reputable contractors
(c) To enter into and maintain contracts for the regular inspection
maintenance and servicing of all fixed plant and equipment
comprised in the Premises which has or is likely to have any
impact on the Landlord's Services Equipment by reputable
contractors approved by the Landlord (such approval not to be
unreasonably withheld) and to obtain satisfactory test certificates
as may be reasonably required by the
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insurers and whenever reasonably required to produce copies of such
contracts and certificates
REFUSE
(8) Not to deposit any refuse on any of the Common Parts except in areas
designated for such purpose from time to time by the Landlord and to
comply with all requirements of any Public Authority and any reasonable
regulations made by the Landlord pursuant to clause 4(27) in relation to
control over and disposal of rubbish
TO PERMIT ENTRY
(9) To permit the Landlord (and persons authorised by the Landlord) at
reasonable times in compliance with the Tenant's reasonable security
requirements on reasonable prior written notice (except in an emergency)
to enter the Premises in order to:-
(a) examine their state of repair
(b) ascertain that the covenants and conditions of this lease have been
observed
(c) take any measurement or valuation of the Premises
(d) rebuild renew cleanse alter test maintain repair inspect and make
connections to any part of the Building including the Service Media
(PROVIDED that the Landlord will procure that such entry takes place
outside Normal Business Hours where practicable)
(e) during the last six months of the Term (or at any time in the case of
a disposal of the Landlord's interest) to show the Premises to
prospective purchasers or tenants and their agents
(f) exercise the rights described in schedule 3
COMPLIANCE WITH NOTICES RELATING TO REPAIR OR CONDITION
(10) (a) To comply with any notice requiring the Tenant to remedy any breach
of its covenants
(b) If the Tenant shall not within a reasonable time comply with any such
notice to permit the Landlord and any authorised person to enter the
Premises to remedy the breach as the Tenant's agent and at the
Tenant's proper cost the Landlord making good any damage caused
(c) To pay to the Landlord on demand all the proper costs and expenses
incurred by the Landlord under the provisions of this sub-clause
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ENCROACHMENTS
(11) (a) To preserve all rights of light and other easements belonging to the
Premises and not knowingly to give any acknowledgment that they are
enjoyed by consent
(b) Not knowingly to do or omit anything which might subject the
Premises to the creation of any new easement and to give notice to
the Landlord forthwith of any encroachment which might have that
effect
ALTERATIONS AND REINSTATEMENT
(12) (a) Not to carry out any Development of or on the Premises nor (without
prejudice to the exclusion of structural parts from the demise of the
Premises) any works affecting any structural parts of the Building and
not to commit any waste
(b) Without prejudice to any other rights of the Landlord in respect of
areas not included in the Premises not to install or erect any
exterior lighting shade or awning or place any structure or other
thing outside the Premises
(c) Without prejudice to paragraphs (a) and (b) of this sub-clause and
subject to the provisos to this paragraph (c) not to make any other
alteration or addition to the Premises (including all electrical and
other plant and equipment and the installation and removal of
demountable partitioning) except:-
(i) in accordance with plans and specifications (adequately
describing the work in question and the manner in which the
work will be carried out) previously submitted at the Tenant's
expense in triplicate to and approved by the Landlord (such
approval not to be unreasonably withheld or delayed
PROVIDED THAT the Landlord shall respond to the Tenant's
submission within 10 working days in the case of minor
alterations (excluding any alterations which affect any of the
Landlord's Services Equipment) and if the Landlord fails to
respond within 10 working days as aforesaid it shall be deemed
to have accepted such minor alterations AND PROVIDED FURTHER
that the initial fitting out of the Premises following the
date hereof shall be governed by the Agreement for Initial
Alterations
(ii) in a manner which shall not materially and adversely affect
the Landlord's Services Equipment any Service Media or the
provision of any of the Services
(iii) in accordance with any relevant terms conditions
recommendations and regulations of any Public Authority
(and in particular in relation to any electrical
installation in accordance with the terms and conditions laid
down by the
13
Institution of Electrical Engineers and the Regulations of
the Electricity Supply Authority) and the insurance company
with whom the Premises are for the time being insured and
(iv) in a good and workmanlike manner
PROVIDED ALWAYS THAT subject to clause 4(12)(c)(i):-
(I) no such alterations or additions shall be carried out until
the Landlord has issued its consent in writing to which the
Tenant shall if required join as a party
(11) once any such alterations or additions have been carried out
the Tenant shall supply to the Landlord as-built plans in
triplicate (together with a computer aided design disk and
35 mm slides) showing the works as carried out
(d) At the expiry of the Term to remove:-
(i) all alterations and additions made to the Premises by the
Tenant
(ii) all work done in connection with the original fitting out by
the Tenant in pursuance of the Agreement for Initial
Alterations
and to restore and make good the Premises in accordance with the
Reinstatement Specification in a proper and workmanlike manner to
the condition and design which existed before the alterations or
additions were made with all services properly sealed off
USE
(13) Not to use the Premises or any chattels in them:-
(a) for any purpose (and not to do anything in or to the Premises) which
may be or become or cause a nuisance obstruction or damage to any
person or property
(b) for a sale by auction or for any public meeting or for any
dangerous noxious noisy illegal or immoral trade business or
activity or for residential purposes and not to use the Common
Parts for the transaction of any business or
(c) (without prejudice to the preceding paragraphs of this sub-clause)
except for the Permitted Use
SIGNS
(14) (a) Not to erect any aerial satellite dish sign signboard pole antenna
wire or other apparatus on the outside of the Building save for the
right granted pursuant to paragraph 3 of schedule 2
14
(b) Not to affix or exhibit so as to be visible from outside the
Premises any placard sign notice fascia board or
advertisement except the approved signs referred to in
paragraph 3 of schedule 2
ALIENATION
(15) (a) If the Tenant at any time desires to assign the whole of the
Premises the Tenant shall first by an irrevocable
unconditional written notice ("the Tenant's Notice") served
upon the Landlord offer to surrender or assign this lease
upon such financial terms and conditions as the Tenant may
desire
(b) If the Landlord wishes to accept such surrender or
assignment it shall within twenty-one days of receipt of the
Tenant's Notice serve a counter-notice ("the
Counter-Notice") upon the Tenant stating as much
(c) If the Landlord serves a Counter-Notice on the Tenant then
the Tenant shall surrender or assign (at the Landlord's
option) the Premises to the Landlord (or as the Landlord may
direct) within six months of receipt of the Counter-Notice
either with vacant possession or subject only to a permitted
underletting and the Tenant's liability hereunder shall cease
in respect of any matters arising following the date of such
assignment or surrender but without prejudice to any
antecedent breaches of covenant
(d) If the Landlord does not serve a Counter-Notice then the
Tenant must (if it wishes to assign) complete its assignment
on terms greater than 95 per cent in value of the terms and
conditions stipulated in the Tenant's Notice within six
months from the date of the Tenant's Notice and if the
Tenant shall fail to complete within such period if it still
wishes to assign the whole of the Premises it must reinstate
the procedure set out in this clause 4(15)
(e) Subject to the foregoing provisions of this sub-clause 4(15)
not to assign mortgage charge or underlet or in any other
manner part with possession of any part (being less than the
whole) of the Premises or agree to do so except that the
Tenant may underlet the whole of (but not more or less than)
any Permitted Part or Permitted Parts in accordance with
paragraphs (h) and (i) of this sub-clause
(f) Subject to the foregoing provisions of this sub-clause 4(15)
not to assign underlet or otherwise part with possession of
or the whole of the Premises or agree to do so except that
the Tenant may assign or underlet the whole of the Premises
in accordance with paragraph (g) or (h) respectively of this
sub-clause
(ASSIGNMENT)
(g) (i) Not to assign the whole of the Premises without first
obtaining the Landlord's consent issued within 2 months
before completion of the assignment which consent shall not
be unreasonably withheld or delayed but which may be
granted
15
subject to any one or more of the conditions referred to in paragraph
(g)(ii) and which may be withheld if any one or more of the
circumstances referred to in paragraph (g)(iii) exist
(ii) The conditions referred to in paragraph (g)(i) (which are specified for
the purposes of section 19(1A) Landlord and Tenant Act 1927) are:
AUTHORISED GUARANTEE
(a) that the Tenant shall enter into an authorised guarantee agreement
(as defined in section 16 Landlord and Tenant (Covenants) Act
1995) with the Landlord in a form which the Landlord reasonably
requires
THIRD PARTY GUARANTEE/RENT DEPOSIT
(b) that if so reasonably required by the Landlord the proposed
assignee shall have procured covenants with the Landlord by a
guarantor or guarantors (not being the Tenant or any guarantor)
reasonably acceptable to the Landlord in a form acceptable to the
Landlord (acting reasonably);
INTRA GROUP DEALINGS
(c) if the proposed assignee is a Group Company the Tenant
shall have procured either:
(A) if the Tenant's obligations under this lease are guaranteed
by another Group Company that such Group Company covenants
with the Landlord on the same terms (mutatis mutandis) as
those contained in clause 10; or
(B) if there is no guarantor of the Tenant's
obligations under this lease and if the assignee is
not at the date of the application for consent to
the proposed assignment in the reasonable
opinion of the Landlord of financial standing
equivalent to or greater than the Tenant at the
date of this lease that the proposed assignee
procures covenants by a Group Company which
is not the Tenant or the proposed assignee and
which is in the reasonable opinion of the
Landlord of financial standing equivalent to or
greater than the Tenant in the same terms
(mutatis mutandis) as those contained in clause
10; and
16
(iii) The circumstances referred to in paragraph (g)(i) (which are
specified for the purposes of section 19(1A) Landlord and
Tenant Act 1927) are:-
(a) where the Tenant's solicitors have not given an
undertaking to the Landlord's solicitors to pay all
reasonable legal surveyor's and management costs
disbursements and VAT arising on the application for
consent to such assignment whether or not consent is
granted unless the Landlord unreasonably withholds
consent in circumstances where it is required to be
reasonable; and/or
(b) where any of the rents and Interim Sum due from the
Tenant to the Landlord or the Management Company
respectively under this lease remain unpaid at the
date of the application for consent to the proposed
assignment
(UNDERLETTING)
(h) Not to underlet the whole of the Premises or any Permitted Part
(each being referred to in this paragraph as the premises) except:-
(i) to a person who before the underletting shall have covenanted
with the Landlord to observe and perform the Tenant's
obligations under this lease during the sub-term to the extent
they relate to the premises demised by the underletting (other
than the payment of rents) and a covenant not to assign the
whole of the premises without the Landlord's consent (which
shall not be unreasonably withheld or delayed) and an
unqualified covenant not to assign part of the premises or to
underlet or otherwise part with possession or share the
occupation of the premises or any part of them
(ii) by reserving as a yearly rent without payment of a fine or
premium (in addition to the service and insurance and other
rents payable under this lease except the rent first hereby
reserved or (in the case of underletting of a Permitted
Part) a pro rata proportion of them) an amount equal to:-
(a) (in the case of an underletting of the Premises) the
then open market rack rental value of the Premises
(b) (in the case of an underletting of a Permitted Part) a
pro rata proportion of the then open market rack rental
value of the Premises
the proportion in each case being calculated by reference
to the Net Internal Area of the Permitted Part in relation
to the Net Internal Area of the Premises, in all cases such
rent to be payable by equal quarterly instalments in
advance on the usual
17
quarter days and to be approved by the Landlord prior to the
underletting (such approval not to be unreasonably withheld or
delayed) but the amount of such rent and the approval of the
Landlord thereto may not be used as evidence by the Tenant for the
purpose of any rent review pursuant to this lease
(iii) by a form of underlease:-
(a) by which the principal rent reserved by the underlease is
reviewed upwards only at not greater than five year
intervals during the sub-term in accordance with the same
principles (mutatis mutandis) and at the times as apply to
the rent first reserved by this lease
(b) requiring the underlessee to observe and perform all the
covenants and other provisions binding on the Tenant under
this lease (other than the covenant by the Tenant to pay
rents) to the extent they relate to the premises and
containing:-
(A) a condition for re-entry by the underlessor on
breach of any covenant by the underlessee
(B) a qualified covenant not to assign the whole of the
premises and an absolute covenant not to assign part
of the premises or to underlet or otherwise part with
possession or share the occupation of the premises or
any part of them
(iv) with the Landlord's consent issued within three months before
completion of the underletting which consent (subject to
compliance with the foregoing conditions precedent) shall not be
unreasonably withheld or delayed
(i) In relation to an underlease of a Permitted Part:-
(i) not to include in the sub-demise any part of the entrance to or
the reception area of the Premises
(ii) to except from the underlease all necessary circulation areas and
plant and equipment which will serve the Premises in common and to
reserve a separate service charge rent in respect of their
maintenance repair and renewal
(iii) not as a result of the grant to create or permit the creation of
more than four separate occupations affecting the whole of the
Premises (occupations in right of this lease counting as one
occupation)
(iv) not to grant or agree to grant the underlease without providing
for the exclusion of sections 24 to 28 inclusive of the Landlord
and Tenant Act 1954 in relation to the underlease in pursuance
18
of an Order duly made under section 38(4) of that Act before
the date of grant
(j) To enforce the observance and performance by every such
underlessee and its successors in title of the provisions of the
underlease and not expressly or impliedly to waive any breach of
them nor vary the terms of any underlease
(k) Not to agree any reviewed rent payable under an underlease without
the Landlord's consent and if the rent review under any underlease
is to be determined by an independent person not to agree his
appointment without the Landlord's consent (PROVIDED ALWAYS THAT the
Landlord shall not unreasonably withhold or delay any consent
required under this sub-paragraph) and to procure that any
representations which the Landlord may wish to make in relation to
the rent review are duly submitted to the independent person and to
provide to the Landlord promptly on the same becoming available
copies of any representations made by or on behalf of the Tenant or
the underlessee in relation to such rent review
(SHARING OCCUPATION)
(1) Not to part with or share the occupation of the Premises or any part
of them except that the Tenant may share occupation with a company
which is (but only for so long as it remains) either the holding
company of the Tenant or a majority-owned subsidiary of the Tenant
or of the Tenant's holding company (as those expressions are defined
in section 736 Companies Act 1985) 50 long as the Tenant does not
grant the person sharing occupation exclusive possession (so that
such company occupies as licensee only without creating any
relationship of landlord and tenant) nor otherwise transfer or
create a legal estate and the Tenant shall notify the Landlord of
the identity of each company in occupation
REGISTRATION
(16) (a) Within twenty-one days after any disposition or devolution of
this lease or of any estate or interest in or derived out of it to
give notice in duplicate of the relevant transaction to the Landlord
for registration with a certified copy of the relevant instrument
and to pay to the Landlord a fair and reasonable fee for each such
registration of not less than twenty five pounds
(b) To register with the Landlord particulars of the determination of
every rent review under any underlease of the Premises within
fourteen days after the date of determination
19
PAYMENT OF COST OF NOTICES CONSENTS ETC.
(17) To pay on demand all reasonable expenses (including counsels'
solicitors' surveyors' and bailiffs' fees) properly incurred by the
Landlord in and incidental to:
(a) the preparation and service of a notice under section 146 Law of
Property Act 1925 or in contemplation of any proceedings under
section 146 or 147 of that Act notwithstanding that forfeiture is
avoided otherwise than by relief granted by the court and
(b) every reasonable step taken during or after the expiry of the Term
in connection with the enforcement of the Tenant's obligations
under this lease including the service or proposed service of all
notices and schedules of dilapidations and
(c) every application for consent licence or approval under this lease
but not if the application is unreasonably refused or delayed or
granted subject to unreasonable conditions (where such consent is
not to be unreasonably withheld or delayed)
MACHINERY
(18) Not to install in the Premises any plant or machinery other than usual
office equipment without the Landlord's consent which shall not be
unreasonably withheld PROVIDED ALWAYS THAT no plant or machinery shall
be installed or operated in the Premises and nothing shall be done or
omitted in them which may cause:-
(a) the efficiency of the heating ventilation air conditioning and
cooling system installed in the building to be diminished or
impaired in any way
(b) noise dust fumes smell vibration or electrical interference
affecting or having any other intrusive effect on any other part
of the Building or other adjoining property or persons outside the
Premises
OBSTRUCTION/OVERLOADING
(19) Not to obstruct:-
(a) or damage any part of the Building or exercise any of the rights
granted by this lease in a way which causes nuisance or damage
(b) any means of escape
(c) or discharge any deleterious matter into
(i) any pipe drain or other conduit serving the Premises and
(to the extent they lie within the Premises) to keep them
clear and functioning properly or
(ii) any Service Media
20
(d) or stop-up or darken the windows and other openings of the Premises
nor to overload or cause undue strain to the Service Media or any other
part of the Building and in particular not to suspend any undue weight
from the ceilings or walls of the Premises and not to exceed the
following floor loadings:-
floor finishings: : 4 kN/m2 (80lbs per sq.ft)
live load : 1kN/m2 (20lbs per sq.ft)
(e) any requisite notice erected on the Premises including any erected
by the Landlord in accordance with its powers under this lease
PARKING/GOODS DELIVERY
(20) To ensure that all loading unloading deliveries and despatch of goods is
carried out only by using the service accesses and goods lifts
designated by the Landlord for the use of the Premises
PLANNING LAW AND COMPENSATION
(21) Without prejudice to clause 4(4) at all times during the Term to comply
with the provisions and requirements of Planning Law relating to or
affecting
(a) (i) the Premises
(ii) any operations works acts or things carried out executed
done or omitted on the Premises
(iii) the use of the Premises
(iv) the use by the Tenant of (and the exercise of any other
rights hereunder in respect of) any other parts of the
building
(b) Subject to the provisions of paragraph (c) of this sub-clause as
often as occasion requires during the Term at the Tenant's expense
to obtain and if appropriate renew all planning permissions (and
serve all notices) required under Planning Law in respect of the
Premises whether for the carrying out by the Tenant of any
operations or the institution or continuance by the Tenant of any
use of the Premises or any part thereof or otherwise
(c) Not without the Landlord's consent (such consent not to be
unreasonably withheld or delayed) to apply for any planning
permission relating to the Premises (and not to apply for any such
planning permission relating to any other part of the Building) but
so that subject to compliance with paragraph (e) of this sub-clause
the Landlord's consent shall not be unreasonably withheld or
delayed to the making of a planning application in respect of the
Premises relating to any operations or use or other thing (if any)
which assuming it to be implemented in accordance with Planning Law
would otherwise not be in breach of the provisions of this lease
21
(d) If the Landlord so requires in connection with any relevant
proposal by the Tenant to apply for a determination under section
191 or 192 Town and Country Planning Act 1990
(e) If the Landlord consents in principle to any application by the
Tenant (which it hereby agrees to consider and determine with all
due expedition) for planning permission to submit a draft of the
application to the Landlord for its approval and to give effect to
its reasonable requirements in respect thereof and if and to the
extent the Landlord so requires to lodge the application with the
relevant authority in the joint names of the Landlord and the
Tenant and in duplicate
(f) Not to implement any planning permission before the Landlord has
acknowledged that its terms are acceptable nor before the Landlord
has received any cash or other security which it reasonably
requires for compliance with any conditions imposed by the
planning permission
(g) If the Landlord at the Landlord's cost reasonably requires or the
Tenant desires to lodge and progress diligently an appeal against
any refusal of an application for planning permission lodged in
respect of the Premises by the Tenant or by any person claiming
under or through the Tenant (whether or not lodged in its name
alone) the Landlord undertakes to co-operate fully with the Tenant
in respect of any such appeal unless such appeal would be likely to
have a material and adverse effect on the Landlord's interests in
the Building
(h) Unless the Landlord otherwise directs to complete before the
expiry of the Term all works on the Premises required as a
condition of any planning permission implemented by the Tenant or
by any person claiming under or through it
(i) If the Tenant receives or is entitled to receive any statutory
compensation under any Enactment in relation to its interest in
the Premises the Tenant shall on any determination of its interest
prior to the expiry of this lease by effluxion of time forthwith
make such provision as is just and equitable for the Landlord to
receive its due benefit from such compensation
INDEMNITY
(22) To indemnify the Landlord against all expenses proceedings costs claims
damages demands and any other liability or consequence arising out or in
respect of any breach of any of the Tenant's obligations under this
lease (including all costs reasonably incurred by the Landlord in an
attempt to mitigate any such breach) or of any act omission or
negligence of the Tenant or any person at the Premises with the Tenant's
authority
22
DEFECTIVE PREMISES
(23) On becoming aware of the same (or when the Tenant ought reasonably to
have become aware of the same) to give notice forthwith to the Landlord
of any defect in the Premises which might give rise to:-
(a) an obligation on the Landlord to do or refrain from doing
anything in relation to the Premises or
(b) any duty of care or the need to discharge such duty imposed
by the Defective Premises Act 1972 or otherwise
and at all times to display and maintain all notices which the Landlord
may from time to time reasonably require to be displayed at the Premises
in relation to their state of repair and condition
INSURANCE AND FIRE FIGHTING EQUIPMENT
(24) (a) Not to do or omit anything by which any insurance policy
(relevant extracts of which shall have been provided to the
Tenant) relating to the Building or any part of it becomes
void or voidable or by which the rate of premium on such
policy may be increased
(b) To comply with all proper requirements of the insurers and
to provide and maintain unobstructed appropriate operational
fire fighting equipment and fire notices on the Premises
(c) To notify the Landlord forthwith of:-
(i) any incidence of any Insured Risk on the Premises and of
any other event which ought reasonably to be brought to
the attention of insurers and of which the Tenant ought
reasonably to be aware
(ii) the insurable value of any fixture installed in the
Premises by the Tenant or any person claiming under or
through the Tenant
(d) That if at any time the Tenant or any person claiming under
or through it shall be entitled to the benefit of any
insurance of the Premises to cause all money paid under such
insurance to be applied in making good the loss or damage in
respect of which it was paid
(e) Subject to clause 5(2)(b) if the whole or any part of the
Building is damaged or destroyed by any of the Insured Risks
at any time during the Term and the insurance money under
any insurance policy effected by the Landlord is rendered
wholly or partially irrecoverable because of some act or
default of the Tenant or any person deriving title under or
through the Tenant or their respective servants agents or
invitees forthwith to pay the Landlord the whole amount of
the insurance money so irrecoverable
23
DANGEROUS AND CONTAMINATIVE MATERIALS
(25) Not to keep place store or use or permit or suffer to be kept placed
stored or used in or upon or about the Premises any materials substance
or other thing of a dangerous inflammable combustible explosive
corrosive or offensive nature or any materials substance or other thing
which may in any way cause pollution injury or harm by percolation
corrosion contamination migration release or otherwise on beneath or in
the vicinity of the Premises
YIELD UP
(26) (a) At the expiry of the Term to remove all chattels and tenant's
fixtures and quietly to yield up the Premises reinstated in
accordance with the Reinstatement Specification and restored
and made good to the extent required under clause 4(12)(d)
and in the state of repair condition decorative order and
layout otherwise required by this lease and any licences or
consents issued in pursuance of it and to make good any
damage so caused in a proper and workmanlike manner
(b) The Tenant irrevocably authorises the Landlord to remove and
dispose of any chattels which may be left in the Premises
within 28 days after the Tenant has quit them (without being
obliged to obtain any consideration for the disposal) and
the Tenant irrevocably declares that any such chattels will
stand abandoned by it
REGULATIONS AND COVENANTS
(27) To comply with:-
(i) all reasonable regulations reasonably made by the Landlord
from time to time and notified to the Tenant in writing for
the good management of the Building PROVIDED ALWAYS THAT
no such regulations shall purport to amend the terms
expressed in this lease and if there is any inconsistency
between the terms of this lease and the regulations the
terms of this lease shall prevail
(ii) all covenants stipulations and other matters affecting the
Premises and not to interfere with any rights easements or
other matters affecting the Premises
SECURITY AND ACCESS
(28) To use all reasonable endeavours to ensure that the Tenant's visitors to
the Premises observe such security regulations which may apply to them
HEAD LEASE
(29) (a) To observe and perform the covenants and conditions on the part of
the lessee contained in the Head Lease so far as they relate to the
Premises except the covenant for the payment of rent and except also
so far as
24
the obligations relating to insurance fall to be observed
and performed by the Landlord pursuant to clause 5(2)
(b) Not to do or omit any act or thing which would or might
cause the Landlord to be in breach of the Head Lease
SERVICE CHARGE
(30) To pay the Service Charge (and VAT thereon) to the Management
Company at the times and in the manner provided for in clause 6
and schedule 5 without deduction or set off and to pay the Outside
Normal Business Hours Charge within 10 days of demand (either
annually or by monthly instalments) as the Management Company
shall reasonably determine PROVIDED THAT for the period from the
date hereof until the earlier of 25th June 1997 and the date on
which the Tenant commences full beneficial occupation of the
Premises following the works contemplated by the Agreement for
Initial Alterations the Service Charge payable by the Tenant in
any Accounting Period shall not exceed pounds sterling 32,202
inclusive of VAT and PROVIDED FURTHER that the Service Charge
payable in respect of the twelve month period from the earlier of
25th June 1997 and the date on which the Tenant commences full
beneficial occupation of the Premises following the works
contemplated by the Agreement for Initial Alterations shall be
pounds sterling 74,601.30 exclusive of VAT
5. LANDLORD'S COVENANTS
The Landlord covenants with the Tenant:
QUIET ENJOYMENT
(1) That if the Tenant observes and performs its covenants contained
in this lease the Tenant may peaceably hold and enjoy the Premises
without any lawful interruption by the Landlord or any person
rightfully claiming through under or in trust for it
INSURANCE
(2) (a) To keep the Building (except all tenants' plant and
equipment and trade fixtures) insured against the Insured
Risks in the full current replacement cost
(b) to use reasonable endeavours to procure that the interest of
the Tenant is noted on the insurance policy and to use
reasonable endeavours to further procure that the insurers
waive any rights of subrogation against the Tenant (or any
lawful subtenant occupier or invitee) and the Landlord will
notify the Tenant if it is unable so to procure and will
duly consider the representations of the Tenant regarding
alternative insurers who may be prepared to procure that the
insurers waive any subrogation rights and/or note the
interest of the Tenant and will also permit the Tenant to
make representations to the insurers regarding the noting of
the Tenant's interest and/or waiver of rights of subrogation
25
(c) On request to supply the Tenant (but not more frequently
than once in any period of twelve months) with evidence of
such insurance
(d) If and whenever during the Term the Building (except as
aforesaid) is damaged or destroyed by an Insured Risk and to
the extent that payment of the insurance monies is not
refused because of any act neglect default or omission of
the Tenant or of any person deriving title under or through
the Tenant or their respective servants agents and invitees
subject to clause 5(2)(b) above the Landlord will with all
convenient speed take the necessary steps to obtain any
requisite planning permissions and consents and if they are
obtained to lay out the money received from the insurance of
the Building (except sums in respect of public liability and
employer's liability and loss of rent) towards replacing
(but not necessarily in facsimile reinstatement) the damaged
or destroyed parts (except as aforesaid) and in the case of
the Premises to the Reinstatement Specification as soon as
reasonably practicable (and the Landlord shall keep the
Tenant informed of progress of any such insurance claims and
the Landlord's proposals for compliance with this provision)
PROVIDED ALWAYS THAT the Tenant shall have no claim against
the Landlord under this clause 5(2)(c) in respect of the
manner of replacement of the interior of any Lettable Unit
other than the Premises or any alteration to the Common
Parts and PROVIDED FURTHER THAT the Landlord shall not be
liable to carry out the replacement if it is unable (having
used all reasonable endeavours) to obtain every planning
permission and consent necessary to execute the relevant
work in which event the Landlord shall be entitled to retain
all the insurance money received by it and if the Landlord
so retains the insurance money the Tenant shall be entitled
to determine this lease on not less than one month's prior
written notice
(e) In the event that the Premises have not been reinstated to
the Reinstatement Specification or essential means of access
thereto within the Building is not available in the
circumstances contemplated in subclause 5(2)(d) by the
date five years and eleven months following the date of such
damage or destruction by an Insured Risk the Tenant may
determine this lease on not less than one month's prior
written notice such notice to be served (if at all) within
one month after expiry of such five years and eleven months
period
HEAD LEASE
(3) (a) To pay the rents reserved by the Head Lease and to perform
so far as the Tenant is not liable for such performance
under the terms of this lease but so far only as to preserve
the existence of this lease the covenants and conditions on
the part of the lessee contained in the Head Lease
26
(b) On the request and at the reasonable expense of the Tenant
to take all reasonable steps to enforce the covenants on the
part of the Superior Landlord contained in the Head Lease
(c) To take all reasonable steps at the Tenant's reasonable
expense (to the extent possible under the Head Lease) to
obtain the consent of the Superior Landlord wherever the
Tenant makes application for any consent required under this
lease where the consent of both the Landlord and the
Superior Landlord is needed by virtue of this lease and the
Head Lease
ELECTRICITY PROVISION
(4) Subject to clause 7(3) to use all reasonable endeavours to provide
or procure the provision of electricity to the Premises to the
extent necessary to meet the requirements of the Tenant having
regard to the overall electricity services design standards for
the Building as a whole and to all relevant statutory provisions
from time to time regulating the supply and utilisation of
electricity and the terms and conditions relative thereto from
time to time imposed by the electricity provider chosen by the
Landlord
MANAGEMENT COMPANY ACCESS
(5) To allow the Management Company such rights over the Building as
it requires from time to time for the due and proper provision of
the Services
VAT INDEMNITY
(6) The provisions of schedule 8 shall apply in relation to VAT
liability on the rent first reserved and:-
(a) Whenever VAT is properly chargeable in respect of any supply
made hereunder by the Landlord to the Tenant the Landlord
shall no later than thirty days after the due date for
payment in respect of such supply issue a valid VAT invoice
or audit note (as the case may be to the Tenant)
(b) Subject to (6)(c) below all consideration payable by the
Landlord to the Tenant shall be exclusive of VAT which the
Landlord shall pay in addition on production of a valid VAT
invoice
(c) The capital sum referred to in clause 3 above shall be
inclusive of VAT save that if the Landlord is at any stage
able to recover such VAT the Landlord shall pay to the
Tenant a further amount equal to VAT on the capital sum
NAMING RIGHTS
(7) The Landlord shall only name the Building in accordance with its
postal address from time to time
NOTIFICATION OF NOTICES
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(8) The Landlord will inform the Tenant as soon as reasonably
practicable but in any event within 5 working days of receipt of
the same of any notice served by the Superior Landlord alleging a
breach of the Head Lease which would threaten the existence of
this lease
6. PROVISION OF SERVICES
The Management Company covenants with the Tenant to use all reasonable
endeavours:-
(1) Well and substantially to repair and properly clean and decorate
the structure of the Building (including the structure of the
roofs foundations external and internal walls and columns and
structural slabs of the ceilings and floors) the external surfaces
of the Building (including the whole of the glazing within the
external walls of the Building) and the Common Parts and (where
consistent with an obligation to repair) to replace the same
(2) To keep the Service Media designed for common or general use and
the Landlord's Services Equipment in good and substantial repair
and in clean condition and at all times in good and safe working
order
(3) To keep the lifts in the Building clean and in good and
substantial repair and condition and at all times in good and safe
working order
(4) Provide heat and air conditioning and chilled water to the
Premises (subject to the Tenant paying Outside Normal Business
Hours Charge in relation to the provision of such services outside
Normal Business Hours) such heat being sufficient to maintain an
air temperature in the Premises measured at the main trunk
connections to the floor as follows:
Air Conditioning and Heating
Design Parameters:
External Conditions:
Summer 29 degrees C DB 20 degrees C WB
Winter -4 degrees C DB 100% relative
humidity
Internal Conditions Office
Accommodation -
Summer 22 degrees C DB + 1 degree C
Winter 20 degrees C DB minimum
Humidity Office Accommodation -
Summer 50% +/-10%
Winter 50% +/-10%
28
(5) To ensure that the Common Parts are at all times kept clean tidy
and unobstructed
(6) Subject to clause 7(3) and clause 7(6) to provide or procure the
provision of electricity to the Premises and each and every part
thereof designed to receive the same to the extent necessary to
meet the reasonable requirements of the Tenant and other lawful
occupiers of the Premises
(7) To comply with the requirements of any statute (already or in the
future to be passed) or any government department local authority
other public or competent authority or court of competent
jurisdiction relating to the Building or any part for which any
tenant or occupier of the Building is not directly or exclusively
liable
(8) To ensure that at all times (meaning for the avoidance of doubt 24
hours a day during the Term) there are both such security officers
at and patrolling the Building as is reasonably appropriate for
premises of the same size and nature as the Building and that the
main reception to the Building is properly and adequately manned
(9) To provide or procure the provision of:-
(a) the Services during Normal Business Hours; and
(b) such of the Services outside Normal Business Hours as in the
Management Company's reasonable discretion are appropriate
to provide to a high class office building in the City of
London outside Normal Business Hours; and
(c) such of the Services outside Normal Business Hours as the
Tenant shall previously request (but subject to the Tenant
being responsible for the Outside Normal Business Hours
Charge)
(having regard in all cases to and in accordance with the
overall design standards for the Building as a whole and subject
to the limitations contained in Clause 7(6)) in an efficient and
economic manner and in accordance with good estate management
provided that the Management Company shall be entitled to employ
such managing agents professional advisers contractors and other
persons as it shall from time to time reasonably think fit for the
purpose of the performance of the Services
PROVIDED THAT the Management Company shall not be liable for:-
(without prejudice to the provisions of clause 7(3)) any closure of any
of the Common Parts or interruption in the provision of the Services or
stoppage or severance affecting any of the Service Media or any
interruption to the supply of electricity to the Premises or the Common
Parts or temporary closure or diversion of any of the Common Parts or
Service Media by reason of necessary inspection repair maintenance or
replacement thereof or any part thereof or any plant machinery equipment
installations or apparatus used in connection therewith or damage
thereto or destruction thereof by any risk (whether or not an Insured
Risk) or by reason of electrical mechanical or other defect or breakdown
or frost or other inclement conditions or shortage of fuel materials
29
supplies or labour or whole or partial failure or stoppage of any mains
supply due to any circumstances beyond the control of the Management
Company PROVIDED ALWAYS that the Management Company shall use all
reasonable endeavours to minimise the adverse effects of any such
circumstances and to remedy any such interruption closure or diversion
as soon as reasonably practicable PROVIDED FURTHER that in the event of
the Landlord or the Management Company being unable to provide air
conditioning or electricity to the Premises in such circumstances the
Tenant shall be entitled to carry out (the Landlord and Management
Company affording the Tenant reasonable access to do so) all necessary
remedial works to such electricity or air conditioning PROVIDED THAT:
(a) the Tenant shall carry out such works in a good and workmanlike
manner and make good all damage caused causing as little
inconvenience to the Landlord Management Company and other tenants
as reasonably practicable
(b) the Landlord or the Management Company shall be responsible for
the costs of the Tenant in carrying out such remedial works when
such works are being carried out as a consequence of any breach of
the Landlord's or Management Company's covenants hereunder
7. PROVIDED ALWAYS AND IT IS HEREBY AGREED AND DECLARED
THAT:-
FORFEITURE AND RE-ENTRY
(1) Without prejudice to any other remedies and powers contained in
this lease or otherwise available to the Landlord if
(a) the whole or part of the rents shall be unpaid for
twenty-one days after becoming payable (whether or not
formally demanded) or
(b) any of the Tenant's covenants in this lease are not
performed or observed in the manner and at the times herein
specified or
(c) the guarantee granted by the Guarantor or any other
guarantor of the Tenant's obligations is or becomes
unenforceable (in whole or in part) for any reason
whatsoever and no suitable alternative security is provided
to the Landlord within a period of one month or
if the Tenant (or if more than one person any one of them):-
(d) being a company enters into liquidation whether voluntarily
(except for reconstruction or amalgamation of a solvent
company) or compulsorily or has a provisional liquidator or
a receiver (including an administrative receiver) appointed
or its directors pass a resolution to petition for an
administration order or one or more of them swears an
affidavit in support of such a petition or is the subject of
an administration order or a petition for one or of a
voluntary arrangement or a proposal for one under Part I
Insolvency Act 1986
30
(e) being a company incorporated outside the United Kingdom is
the subject of any proceedings or event analogous to those
referred to in clause 7(l)(d) in the country of its
incorporation
(f) being an individual is the subject of a bankruptcy petition
or bankruptcy order or of any application or order or
appointment under section 253 or section 273 or section 286
Insolvency Act 1986 or otherwise becomes bankrupt or
insolvent or dies
the Landlord may at any time thereafter (and notwithstanding
the waiver of any previous right of re-entry) re-enter the
Premises without prejudice to the Tenant's right to relief against
forfeiture whereupon this lease shall absolutely determine but
without prejudice to either party's right of action against the
other in respect of any antecedent breach of the covenants in this
lease
LETTING SCHEME USE AND EASEMENTS
(2) No letting or building scheme exists or shall be created in
relation to the Building and (subject only to those easements
expressly granted by this lease) neither the Tenant nor the
Premises shall be entitled to any easement or quasi- easement
whatsoever and nothing herein contained or implied shall give the
Tenant the benefit of or the right to enforce or to have enforced
or to prevent the release or modification of any right easement
covenant condition or stipulation enjoyed or entered into by any
tenant of the Landlord in respect of property not demised by this
lease or prevent or restrict the development or use of the
remainder of the Building or any other land
COMMON PARTS AND SERVICE MEDIA
(3) Subject always to the rights of the local authority the relevant
supply authorities and any other competent authority the Common
Parts and the Service Media are at all times subject to the
exclusive control and management of the Landlord who may from time
to time (if it shall be necessary or reasonable to do so for the
benefit of the Building or otherwise in keeping with the
principles of good estate management) alter divert substitute stop
up or remove any of them (leaving available for use by the Tenant
reasonable and sufficient means of access to and egress from and
servicing for the Premises)
SERVICE OF NOTICES
(4) (a) In addition to any other mode of service any notices to be
served under this lease shall be validly served if served in
accordance with section 196 Law of Property Act 1925 as
amended by the Recorded Delivery Service Act 1962 or (in the
case of any notice to be served on the Tenant) by sending it
to the Tenant at the Premises PROVIDED THAT whilst the
Tenant hereunder is Donaldson Lufkin & Jenrette
International Limited such notice shall also be served on
the offices for the time being of SJ Berwin & Co (attention:
Edward Page) or such other firm of solicitors notified in
writing to the Landlord and 277 Park Avenue New York New York
10172
31
(b) If the Tenant or any guarantor comprises more than one
person it shall be sufficient for all purposes if notice is
served on one of them but a notice duly served on the Tenant
will not need to be served on any guarantor
RENT CESSER
(5) If and whenever during the Term:-
(a) the Premises (other than the Tenant's plant and equipment
and tenant's fixtures) or the means of access to the
Premises within the Building are damaged or destroyed by any
of the Insured Risks so that the Premises are incapable of
beneficial occupation and use and
(b) subject to clause 5(2)(b)the insurance of the Building or
the payment of any insurance money has not been vitiated by
the act neglect default or omission of the Tenant or of any
person deriving title under or through the Tenant their
respective servants agents and invitees
the rent first reserved by this lease and the Service Charge
or a fair proportion of them according to the nature and extent of
the damage sustained shall be suspended and cease to be payable
from the date of destruction or damage until whichever is the
earlier of the date on which the Premises are reinstated to the
Reinstatement Specification and if applicable the essential means
of access within the Building are available and the date of expiry
of the period for which insurance of loss of rent is effected and
any dispute about such suspension shall be referred to the award
of a single arbitrator to be appointed in default of agreement on
the application of the Landlord or the Tenant to the President for
the time being of The Royal Institution of Chartered Surveyors in
accordance with the Arbitration Acts 1950 and 1979
LANDLORD'S LIABILITY
(6) The Landlord shall not be liable for (without prejudice to the
provisions of clause 7(3)) any closure of any of the Common Parts
or stoppage or severance affecting any of the Service Media or any
interruption to the supply of electricity to the Premises or
temporary closure or diversion of any of the Common Parts or
Service Media by reason of necessary inspection repair maintenance
or replacement thereof or any part thereof or any plant machinery
equipment installations or apparatus used in connection therewith
or damage thereto or destruction thereof by any risk (whether or
not an Insured Risk) or by reason of electrical mechanical or
other defect or breakdown or frost or other inclement conditions
or shortage of fuel materials supplies or labour or whole or
partial failure or stoppage of any mains supply due to any
circumstances beyond the control of the Landlord PROVIDED ALWAYS
that the Landlord shall use all reasonable endeavours to minimise
the adverse effects of any such circumstances and to remedy any
such interruption closure or diversion as soon as reasonably
practicable PROVIDED FURTHER that in the event of the Landlord or
the Management Company being unable to provide air conditioning
or electricity to the Premises in such circumstances the Tenant
shall be entitled to carry out (the Landlord and Management
Company
32
affording the Tenant reasonable access to do so) all
necessary remedial works to such electricity or air conditioning
PROVIDED THAT:
(a) the Tenant shall carry out such works in a good and workmanlike
manner and make good all damage caused causing as little
inconvenience to the Landlord Management Company and other tenants
as reasonably practicable)
(b) the Landlord or the Management Company shall be responsible for
the costs of the Tenant in carrying out such remedial works when
such works are being carried out as a consequence of any breach of
the Landlords or Management Company's covenants hereunder
ARBITRATION FEES
(7) The fees of any arbitrator incurred in any arbitration proceedings
arising out of this lease may be paid to the arbitrator by the
Landlord or by the Tenant notwithstanding any direction or prior
agreement as to liability for payment and any sums so paid for
which the party who pays them initially is not ultimately liable
shall be repayable on demand by the party who is liable for them
RENT REVIEW MEMORANDUM
(8) Forthwith after every agreement or determination of any increase
in the amount of the rent reserved and made payable by virtue of
schedule 4 a memorandum recording the increase shall be attached
to this lease and to the counterpart and such memorandum shall be
signed by or on behalf of the Landlord and the Tenant respectively
NO WARRANTY AS TO USE
(9) Nothing contained in this lease shall constitute or be deemed to
constitute a warranty by the Landlord that the Premises are
authorised under Planning Law to be used or are otherwise fit for
any specific purpose
DISPUTES
(10) (a) Any dispute between the Tenant and any other tenant or
occupier of any part of the Building relating to any
easement or right affecting the Building or any part of it
shall (unless the Landlord shall by notice to the parties
concerned renounce its power to determine it) be referred to
the Landlord whose decision acting reasonably (acting in the
capacity of an expert) shall be binding upon the parties to
the dispute but the Landlord shall give written reasons for
his decision
(b) Where any issue (other than one relating to a rent review)
arising out of or under or relating to the Head Lease which
also affects or relates to the provisions of this lease is
to be determined as provided in the Head Lease the
determination of such issue pursuant to the provisions of
the Head Lease shall be binding on the Tenant as well as the
Landlord for the purposes both of the Head Lease and this
lease
33
COMPENSATION
(11) Except where any Enactment prohibits the right to compensation
being reduced or excluded by agreement, neither the Tenant nor any
occupier of the Premises shall be entitled on quitting them to
claim from the Landlord any compensation under the Landlord and
Tenant Act 1954
RATEABLE VALUE APPEALS
(12) (a) If the Landlord or the Tenant intends to make a proposal to
alter the entry for the Premises in the local non-domestic
rating list it shall notify the other party of its
intention and shall incorporate in the proposal such proper
and reasonable representations as may be made by or on
behalf of that party
(b) The Tenant shall not agree the level of rates liability
attributable to the Premises following the date hereof
without the Landlord's consent (such consent not to be
unreasonably withheld or delayed) PROVIDED that for the
avoidance of doubt the Landlord shall not be entitled to
refuse its consent to any level of rates which the Tenant
has negotiated with the appropriate rating authority which
is lower than any level of rates negotiated by or on behalf
of the Landlord in respect of the Building on a pro rata
basis
NO WARRANTY AS TO SECURITY
(13) Nothing contained in this lease (and no exercise of any of the
Landlord's powers under this lease) shall constitute or be deemed
to constitute a warranty by the Landlord that the Premises shall
be kept secure or that any security service to the Common Parts
shall be effective
JURISDICTION
(14) This lease shall be governed by and construed in all respects in
accordance with the law of England and for the benefit of the
Landlord the English courts shall have exclusive jurisdiction
in relation to disputes arising under or connected with this lease
and the Tenant agrees that any process may be served on it by
leaving a copy of the relevant document at the Premises provided
however that the Landlord shall retain the right at its sole
election to sue the Tenant elsewhere including in the courts of
the Tenant's domicile
OVERRIDING LEASE
(15) If at any time during the Term the Landlord shall grant a tenancy
of the reversion immediately expectant on the determination of this
lease whether pursuant to Section 19 Landlord and Tenant (Covenants)
Act 1995 or otherwise any covenant on the part of the Tenant to
obtain the consent of the Landlord under this lease to any dealing
shall be deemed to include a further covenant also to obtain the
consent of the lessor under such tenancy to such dealing
34
8. LANDLORD'S GUARANTOR
(1) The Landlord's Guarantor at the request of the Landlord and in
consideration of the Tenant agreeing to take this lease covenants
and agrees with the Tenant that all of the Landlord's obligations
contained in this lease will be performed and observed in the
manner and at the times herein specified and that if there is
default in performing and observing any of the Landlord's
obligations (notwithstanding any time or indulgence granted by the
Tenant to the Landlord or compromise, neglect or forbearance on
the part of the Tenant in enforcing the observance of the
Landlord's obligations in this lease) the Landlord's Guarantor
will observe and perform (or procure the performance and
observance of) the obligations in respect of which the Landlord
shall be in default
(2) The Landlord's Guarantor at the request of the Management Company
and in consideration of the Tenant agreeing to pay the Service
Charge covenants and agrees with the Tenant that all of the
Management Company's obligations contained in this lease will be
performed and observed in the manner and at the times herein
specified and that if there is default in performing and observing
any of the Management Company's obligations (notwithstanding any
time or indulgence granted by the Tenant to the Management Company
or compromise, neglect or forbearance on the part of the Tenant in
enforcing the observance of the Management Company's obligations
in this lease) the Landlord's Guarantor will observe and perform
(or procure the performance and observance of) the obligations in
respect of which the Management Company shall be in default
9. TENANT'S OPTION TO DETERMINE
(1) The Tenant may (subject to compliance with the provisions of this
clause) determine this lease as at 24th October 2008
(2) If the Tenant wishes so to determine the Tenant shall give to the
Landlord the Termination Notice such notice to expire on 24th
October 2008
(3) If the Tenant duly serves the Termination Notice it shall procure
that vacant possession of the Premises will be available on 24th
October 2008 free of occupation by and of any estate or interest
rested in the Tenant or any third party and this lease shall not
determine as a result of any notice served by the Tenant if the
Tenant is in material breach of any of its covenant to pay the
rents and Interim Sum contained in this lease (including those
contained in this subclause) as at 24th October 2008 except to
the extent if at all the Landlord in its absolute discretion
waives compliance with any of them
10. GUARANTEE AND GUARANTOR'S INDEMNITY
The Guarantor at the request of the Tenant and in consideration of the
grant of this lease covenants and agrees with the Landlord and during
the Term and any period of holding over continuation or extension
thereof whether by an Enactment common law or otherwise (subject to
clause 4(15)):-
35
(1) The rents reserved by this lease (whether or not ascertained as to
amount) will be duly paid and that all the Tenant's obligations
contained in it will be performed and observed in the manner and at the
times herein specified and that if there is any default in paying the
rents or in performing and observing the Tenant's obligations
(notwithstanding any time or indulgence granted by the Landlord to the
Tenant or compromise neglect or forbearance on the part of the Landlord
in enforcing the observance and performance of the Tenant's obligations
in this lease or any refusal by the Landlord to accept rents tendered
by or on behalf of the Tenant) the Guarantor will observe and perform
the obligations in respect of which the Tenant shall be in default and
will on demand and on a full indemnity basis pay to the Landlord an
amount equivalent to the rents or other amounts not paid and/or any loss
damage costs charges expenses or any other liability incurred or
suffered by the Landlord as a result of the default (and in the event of
non-payment shall pay interest at the Interest Rate from the date of
demand to the Guarantor until the date of payment) and will otherwise
indemnify and hold harmless the Landlord against all actions claims
costs damages demands expenses losses and proceedings arising from or
incurred by the Landlord as a result of such non-performance or non-
observance
(2) If any liquidator or other person having power to do so disclaims this
lease or if it shall be forfeited or if the Tenant ceases to exist and
if the Landlord by written notice served within three months after the
date of disclaimer or forfeiture or the Landlord having actual knowledge
of the cesser of existence of the Tenant (each a "Trigger Event")
requires the Guarantor to accept a lease of the Premises for a term
computed from the date of the Trigger Event to the date on which the
Term would have expired by effluxion of time and at the same rents and
subject to the same covenants stipulations conditions and provisions
(except that the Guarantor shall not be required to procure that any
other person is made party to that lease as guarantor) as are reserved
by and contained in this lease immediately before the Trigger Event and
with coincidental Review Dates (the said new lease and the rights and
liabilities thereunder to take effect as from the date of such Trigger
Event) the Guarantor shall forthwith accept such lease accordingly and
execute and deliver to the Landlord a counterpart of it and indemnify
the Landlord upon demand against the costs incurred on the grant of the
new lease
(3) The liability of the Guarantor hereunder shall not be released reduced
affected or prejudiced by reason of:-
(a) any variation or waiver of or addition to the terms of this lease
or any of them agreed between the Landlord and the Tenant or
(b) the surrender by the Tenant of part of the Premises (in which
event the liability of the Guarantor shall continue in relation to
the Tenant's obligations in respect of the part of the Premises
not so surrendered) or
(c) any legal limitation immunity disability incapacity occurrence of
insolvency or the winding-up of the Tenant or
36
(d) (without limitation to the foregoing) of any other act or thing
act or thing by which (but for this provision) the Guarantor would
have been discharged or released (in each case in whole or in
part) from liability under this guarantee and indemnity
or any combination of any two or more of such matters
(4) If a Trigger Event occurs and for any reason the Landlord does not
require the Guarantor to accept a new lease of the Premises in
accordance with clause 8(2) the Guarantor shall pay to the Landlord on
demand (in addition to any other loss damage costs charges expenses or
other liability which the Guarantor may be required to make good
hereunder and without prejudice to any other rights of the Landlord) an
amount equal to the rents which would have been payable hereunder but
for such Trigger Event (so far as such rents do not otherwise continue
to be payable) for the period commencing on the date of such Trigger
Event and ending on whichever is the earlier of the date one year after
the date of such Trigger Event and the date (if any) upon which rent is
first payable in respect of the whole of the Premises on a reletting
thereof
(5) Without prejudice to the rights of the Landlord against the Tenant the
Guarantor shall be a principal obligor in respect of its obligations
under this clause and not merely a surety and accordingly the Guarantor
shall not be discharged nor shall its liability hereunder be affected by
any act or thing or means whatsoever by which its said liability would
not have been discharged if it had been a primary debtor
(6) The Guarantor shall pay all reasonable charges (including legal and
other costs on a full indemnity basis) incurred by the Landlord in
relation to the Landlord's enforcement of this guarantee and indemnity
against the Guarantor or for enforcing payment by the Guarantor of
amounts indemnified by it hereunder
(7) The Landlord may at its option enforce the terms of this guarantee and
indemnity against the Guarantor without having first enforced the
covenants and terms of this lease against the Tenant and also without
first having recourse to any other rights or security which the Landlord
may have obtained in relation to this lease
(8) The Guarantor shall not be entitled to participate in any security held
by the Landlord in respect of the obligation of the Tenant under this
lease or to any right of subrogation in respect of any such security
until all the obligations owed to the Landlord by the Tenant and the
Guarantor hereunder have been fully and unconditionally fulfilled and
discharged
(9) The Guarantor shall not claim in any liquidation bankruptcy composition
or scheme of arrangement in respect of the Tenant in competition with
the Landlord and if and to the extent that it receives the same shall
remit to (and until remission shall hold in trust for) the Landlord all
and any monies received from any liquidator trustee receiver or out of
any composition or arrangement or from any supervisor thereof until all
the obligations of the Tenant and the Guarantor hereunder owed to the
Landlord have been fully and unconditionally fulfilled and discharged
37
(10) This guarantee and indemnity shall enure for the benefit of the
Landlord's successors in title under this lease without the
necessity for any assignment thereof
(11) While Donaldson, Lufkin & Jenrette International Limited remains the
Tenant this guarantee and indemnity shall only apply if and for so
long as the total shareholders funds and reserves of Donaldson,
Lufkin & Jenrette International Limited are or fall below the value
of Fifty million pounds (pound sterling 50,000,000) AND Donaldson,
Lufkin & Jenrette International Limited and Donaldson, Lufkin &
Jenrette Inc. shall notify the Landlord at the beginning of each
period in which this guarantee and indemnity applies and again when
it ceases to apply AND for the avoidance of doubt this guarantee
(subject to compliance by the Tenant with clause 4(15)) shall
automatically cease on any lawful assignment of this lease (but
without prejudice to either party's rights against the other in
respect of any antecedent breaches of this lease) unless in the
circumstances contemplated by clause 4(15)(g)(ii)(b) it is
reasonable for Donaldson Lufkin & Jenrette Inc. to remain the
guarantor hereunder of the liabilities of Donaldson, Lufkin &
Jenrette International Limited PROVIDED FURTHER that Donaldson,
Lufkin & Jenrette Inc shall in such circumstances automatically be
released on a second assignment of this lease
11. STAMP DUTY CERTIFICATE
It is hereby certified that there is no agreement for lease to which
this lease gives effect
IN WITNESS whereof this Deed has been executed by the parties hereto and is
intended to be and is hereby delivered on the date first above written
38
SCHEDULE 1
(THE PREMISES)
ALL THOSE office premises situate on the twentieth floor and being part of the
Building which are shown on the Plans and thereon verged red for
identification purposes only ALL which premises include:-
(a) the plaster linings and other interior coverings and facing materials of
all walls and of any columns within or bounding the said premises
(b) the screed the raised floor the fixed and unfixed floor coverings and
all materials lying between the upper surface of the structural floor
slab and the raised floor surface
(c) the ceilings including all materials forming part of them lying and the
void space (if any) above such ceilings but below the lower surface of
the structural ceiling slab
(d) all non-load bearing walls lying within the said premises
(e) all plant and other apparatus and conducting media which are designed to
serve the said premises exclusively including any which the Landlord may
permit under clause 4(14) and whose operation does not have any impact
on the central building systems
(f) the following items supplied and fitted by the Landlord:-
(i) venetian horizontal perforated blinds on the inside of the external
windows of the Premises
(ii) electricity check meter
but exclude:-
(i) all Service Media and Landlord's Services Equipment and
(ii) the load bearing structure of the Building including the load bearing
structure of the roofs foundations external and internal walls and
columns and the structural slabs of the ceilings and floors and
(iii) the external surfaces of the Building and the whole of the window
glazing and window frames and other fenestration units constructed in
the external walls and in the other boundaries of the said premises
SCHEDULE 2
(EASEMENTS AND RIGHTS GRANTED)
1. The right in connection with the Permitted Use subject to the provisions
of clause 7(3) and subject to compliance with all reasonable rules and
regulations in connection with the exercise of such right as may be
prescribed from time to time by the Landlord:-
(1) for the Tenant its employees servants and duly authorised agents
invitees and visitors for the purpose only of ingress and egress
to and from the Premises to use the Common Parts and to use all
means of escape but only when needed in an emergency and
39
(2) to use the Service Media
2. The right of support shelter and protection for the Premises from any
adjoining or neighbouring parts of the Building as enjoyed by the
Premises at the date of this lease
3. The right to have displayed the name or trading style of the Tenant and
any authorised sub-tenants or permitted occupiers (subject to a maximum
of four names at any particular time) on the signboard in the entrance
lobby of the Building provided by the Landlord pursuant to paragraph 14
of Part I of schedule 6 and the right to install a sign displaying the
name of the Tenant at the entrance to the Premises the precise location
size and style of such sign to be subject to the approval of the
Landlord (such approval not to be unreasonably withheld or delayed)
4. The right to install a supplementary air conditioning system and UPS
within the 14th floor plant area in the Building in a manner and in a
location to be approved by the Landlord such approval not to be
unreasonably withheld or delayed (in accordance with the provisions of
clause 4(12)) and a right of access to such 14th floor plant area
at all reasonable times on reasonable prior notice (save in the case of
emergency) for repair and maintenance and PROVIDED that on determination
of the Term the Tenant shall remove any such installation and reinstate
the plant room area to the reasonable satisfaction of the Landlord
(making good all damage caused in such removal)
5. The right to use and to have reasonable access for repair and
maintenance (on reasonable prior written notice to the Landlord) those
works or installations within or on the Building (but outside the
Premises) for which consent has been given pursuant to the Agreement for
Initial Alterations
6. The exclusive right to use the lavatories on the same floor as the
Premises subject to free access for the tenants of the nineteenth and
twenty-first floors unless such tenants have agreed to forego the right
of access subject to the Tenant being responsible for all elements of
Service Cost relating to such toilets should any other tenant of
accommodation in the Building object to meeting any proportion of
Service Cost in relation to such facilities (on the basis of such
exclusive use)
SCHEDULE 3
(Exceptions and reservations)
1. The right to build alter or extend (whether vertically or laterally) any
building notwithstanding that the access of light and air or either of
them to the Premises and the lights windows and openings thereof may be
affected
2. The right at reasonable times on reasonable prior written notice (except
in an emergency where no notice need be given) to enter upon the
Premises as often as may be necessary for the purpose of complying with
the covenants of the Head Lease for all the purposes for which the
Tenant covenants in this lease to permit entry and for all purposes in
connection with the carrying out of the Services and for the purposes of
complying with any statutory requirements
3. The right to use and to construct inspect maintain repair divert and
otherwise alter stop up and relay and to make connections to any Service
Media in on or under the
40
Premises at any time during the Term for the benefit of any other part of
the Building or any adjacent or neighbouring land
4. The right to erect and maintain scaffolding on or against any part of the
Building so long as reasonable and sufficient means of access to and
egress from and servicing the Premises are maintained
5. All rights of light air and other easements and rights (but without
prejudice to those expressly granted by this lease) enjoyed by the
Premises from or over any other part or parts of the Building or any
adjacent or neighbouring land
6. The right of support protection and shelter for the benefit of other
parts of the Building from the Premises
7. The right for one or more members of any security staff employed by the
Landlord or its agents at any time or times on reasonable prior notice
(save in the case of emergency where no notice is required) to enter the
Premises if it shall be considered necessary or desirable so to do in
connection with the security of the Building
8. The right for the tenant or occupier of any other part of the Building
authorised by the Landlord having first given reasonable written notice
to the Tenant at reasonable times in the daytime and at any time and
without notice in case of emergency to enter the Premises for the
purpose of repairing that other part of the Building making good any
damage so caused to the reasonable satisfaction of the Tenant
9. The rights reserved to the Superior Landlord (by covenant or by express
reservation) in the Head Lease
PROVIDED ALWAYS THAT if the Landlord or its employees or the persons
authorised by the Landlord exercises any of the rights by carrying out work on
the Premises it shall cause as little inconvenience as possible and as soon as
reasonably practicable make good any damage caused to them unless the right
has been exercised because of some breach by the Tenant or by any person
claiming through it
SCHEDULE 4
(THE FIRST RESERVED RENT AND THE REVIEW THEREOF)
1. In this schedule the following expressions have the respective specified
meanings:-
(1) "Current Rent" means the amount of the yearly rent first reserved
by this lease payable immediately before the relevant Review Date
(2) "Review Rent" means the yearly market rent which might reasonably
be expected to be payable following the expiry of any period at
the beginning of the term which might be negotiated in the open
market for the purposes of fitting out during which no rent or a
concessionary rent is payable or following the payment of any
capital sum or fitting out contribution which might be negotiated
in the open market for the purposes of fitting out (and on the
assumption that the lessee has had the benefit of such rent free
or concessionary rent period or capital sum or fitting out
contribution and has used the same fully to fit out the Premises
for the Permitted Use to the lessee's
41
particular requirements) if the Premises had been let in the open market
by a willing lessor to a willing lessee with vacant possession on the
relevant Review Date without fine or premium for a term of ten years
computed from the relevant Review Date taking into account the lessee's
right at the expiration of the term to be granted a new tenancy under
Part II Landlord and Tenant Act 1954 and otherwise upon the provisions
(save as to the amount of the rent first reserved by this lease but
including the provisions for rent review at five-yearly intervals)
contained in this lease and on the assumption if not a fact that the
said provisions have been fully complied with and on the further
assumptions that:-
(a) the Permitted Use and the Premises comply with Planning Law and
every other Enactment free from any onerous condition restriction
and limitation and that the lessee may lawfully implement and
carry on the Permitted Use
(b) no work has been carried out to the Premises which has diminished
their rental value
(c) in case the Building or any part of it has been destroyed or
damaged it has been fully restored
(d) the Premises have been fitted out to no less standard than that
set out in the Reinstatement Specification
but disregarding any effect on rent of:-
(i) the fact that the Tenant or any underlessee or other permitted
occupier or their respective predecessors in title has been or is
in occupation of the Premises
(ii) any goodwill attached to the Premises by the carrying on in them
of the business of the Tenant or any underlessee or their
respective predecessors in title or other permitted occupier
(iii) (without prejudice to paragraphs 1(2)(b) and 1(2)(c) of this
schedule) any works carried out to the Premises during the Term by
the Tenant or any permitted underlessee in either case at its own
expense in pursuance of a licence granted by the Landlord where
required and otherwise than in pursuance of any obligation to the
Landlord
(iv) the works carried out to the Premises by the Tenant or carried out
by the Landlord at the expense of the Tenant pursuant to the
Agreement for Initial Alterations
(3) "Review Surveyor" means an independent chartered surveyor appointed
pursuant to paragraph 3(1) of this schedule and if to be nominated by or
on behalf of the President for the time being of the Royal Institution
of Chartered Surveyors the said President to be requested to nominate an
independent chartered surveyor having not less than ten years practice
in the City of London next before the date of his appointment and recent
substantial experience in the letting and valuation of office premises
of a similar character and quality to
42
those of the Premises and who is a partner or director of a
leading firm or company of surveyors having specialist market and
valuation knowledge of such premises
2. The yearly rent first reserved and payable from each Review Date until
the next following Review Date or (in the case of the period commencing
on the last Review Date during the Term) until the expiry of the Term
shall be the higher of:-
(1) the Current Rent (ignoring for this purpose any rent cesser
pursuant to clause 7(5)) and
(2) the Review Rent
3. If the Landlord and the Tenant shall not have agreed the Review Rent by
the date three months before the relevant Review Date it shall (without
prejudice to the ability of the Landlord and the Tenant to agree it at
any time) be assessed as follows:-
(1) the Review Surveyor shall (in the case of agreement about his
appointment) be forthwith appointed by the Landlord or the Tenant
to assess the Review Rent or (in the absence of agreement at any
time about his appointment) be nominated to assess the Review Rent
by or on behalf of the President for the time being of The Royal
Institution of Chartered Surveyors on the application of the
Landlord or the Tenant
(2) Unless the Landlord and the Tenant agree that the Review Surveyor
shall act as an expert (which after the appointment has been made
they may not do save with the consent also of the Review Surveyor)
he shall act as an arbitrator and the arbitration shall be
conducted in accordance with the Arbitration Acts 1950 and 1979
(3) If the Review Surveyor is appointed as an expert he shall be
required to give notice to the Landlord and the Tenant inviting
each of them to submit to him within such time limits as he shall
stipulate a proposal for the Review Rent supported (if so desired
by the Landlord or the Tenant) by any or all of:-
(i) a statement of reasons
(ii) a professional rental valuation and (separately and later)
(iii) submissions in respect of each other's statement of reasons
and valuation
but he shall not be bound thereby and shall make the determination
in accordance with his own judgment (including any determination
concerning any party's liability for the costs of the reference to
him) save in respect of points of law
(4) If the Review Surveyor whether appointed as arbitrator or expert
refuses to act or is or becomes incapable of acting or dies the
Landlord or the Tenant may apply to the President for the further
appointment of another Review Surveyor
4. If the Review Rent has not been agreed or assessed by the relevant Review
Date the Tenant shall:-
43
(1) continue to pay the Current Rent on account and
(2) pay the Landlord within seven days after the agreement or
assessment of the Review Rent the amount (if any) by which the
Review Rent for the period commencing on the relevant Review Date
and ending on the quarter day following the date of payment
exceeds the Current Rent paid on account for the same period plus
interest at three per cent below the Interest Rate for each
installment of rent due on and after the relevant Review Date on
the difference between what would have been paid on that rent day
had the Review Rent been fixed and the amount paid on account (the
interest being payable from the date on which the installment was
due up to the date of payment of the shortfall)
5. If any Enactment restricts the right to review rent or to recover an
increase in rent otherwise payable then when the restriction is released
the Landlord may at any time within six months after the date of release
give to the Tenant not less than one month's notice requiring an
additional rent review as at the next following quarter day which shall
for the purposes of this lease be a Review Date
SCHEDULE S
(THE SERVICE CHARGE)
1. In this schedule:
"ACCOUNTING PERIOD" means the period from and including 1st January to
and including 31st December in any year or such other period of twelve
months as the Management Company shall reasonably determine from time to
time
"EXPERT" means a chartered surveyor experienced in the administration
and apportionment of service charges for buildings similar to the
Building as agreed upon by the Management Company and the Tenant or on
failure to agree appointed at the request of either party by the
President Provided that where an Expert has previously been agreed or
appointed in relation to any matter in connection with the Service Cost
or the allocation of the Service Cost between the tenants of the
Building (whether or not pursuant to the terms of this Underlease) the
Management Company or the Tenant shall be entitled if reasonable to
require that the same Expert be appointed
"INTERIM SUM" means a fair and reasonable yearly sum assessed by the
Management Company acting reasonably on account of the Service Charge
for each Accounting Period being a fair and reasonable estimate of the
Service Charge payable by the Tenant in respect of that Accounting
Period
"RESERVE" means the total of the amounts received by the Management
Company in respect of the matters referred to in paragraph 2(B) of this
schedule
"SERVICE CHARGE" means the proportion or proportions of the Service Cost
attributable to the Premises determined in accordance with the
provisions of this schedule payable from the date hereof
"SERVICE CHARGE CERTIFICATE" means a certificate showing the Service
Cost and Service Charge for each Accounting Period served pursuant to
paragraph 5 of this schedule and prepared by the Management Company's
surveyor or auditor
44
"SERVICE COST" means the total sum calculated in accordance with
paragraph 2 of this schedule
2. The Service Cost shall be the total of:-
(A) the reasonable cost properly incurred by the Management Company in
any Accounting Period in carrying out or procuring the carrying out
of the Services and providing each item of the Services including
(without prejudice to the generality of the foregoing) the costs
and expenses set out in Part II of schedule 6 (insofar as the same
are reasonable and properly incurred) and any other reasonable
costs and expenses properly incurred by the Management Company or
with the Management Company's authority in connection with the
Services but excluding for the avoidance of doubt
(i) any costs attributable to the provision of any of the
Services outside Normal Business Hours at the specific
request of the Tenant (which shall be charged direct to the
Tenant) or of any other tenant or tenants of the Building
and
(ii) any Value Added Tax which the Management Company may incur
of and incidental to the provision of the Services and
which is recoverable as input tax by the Management Company
(iii) any cost or expense incurred in making good any damage
caused by any of the Insured Risks
(B) an amount (to be revised annually by the Management Company at its
reasonable discretion) to be charged in any Accounting Period as a
contribution to the establishment and maintenance of a reserve
towards the estimated cost to the Management Company of the
provision of the Services such amount to be ascertained on the
assumption (inter alia) that the cost of replacement of items
of plant machinery equipment and other capital items is calculated
on such life expectancy of the said items as the Management Company
may from time to time reasonably determine to the intent that a
fund be accumulated sufficient to cover the cost of replacement of
the said items by the end of their anticipated life
PROVIDED THAT nothing herein contained shall oblige the Management
Company to maintain the Reserve or a reserve sufficient to cover the
whole of the cost of replacement of any plant machinery equipment or
other capital items and provided further that any expenditure on any
items in respect of which any sums shall have been included in the
Reserve during an Accounting Year shall at the Management Company's
reasonable discretion as to the amount thereof if any be met out of the
Reserve AND PROVIDED THAT in respect of any costs or expenses not
incurred exclusively in connection with the provision or carrying out of
the Services a fair proportion only of such costs and expenses shall be
included in the Service Cost
3. (A) The Service Charge payable by the Tenant for any Accounting Period
shall be a fair proportion of the Service Cost attributable to the
Premises from time to time as properly determined by the Management
Company (and so in proportion for any Accounting Period not falling
wholly within the Term the
45
Service Cost in any such case being deemed to accrue on a day to
day basis for the purpose of apportionment)
(B) If at any time and from time to time during the Term the method or
basis of calculating or ascertaining the cost of any item of the
Services shall alter or the basis of calculating or ascertaining
the Service Cost in relation to any item of the Services shall
change and as a result it is reasonable that there be an alteration
or variation of the calculation of the Service Charge in order to
achieve a fairer and better apportionment of the Service Cost
amongst the tenants of the Building then and in every such case
the Management Company shall vary and amend the Service Charge
and make appropriate adjustments thereto provided always that
in the event of any dispute between the Management Company and the
Tenant and the other tenants of the Building or any of them the
same shall be referred to the Expert for determination (the Expert
to act as an expert and not as an arbitrator) whose decision shall
save in the case of manifest error be binding on the parties
(including his decisions as to the responsibility for his costs)
(C) The fair proportion to be determined by the Management Company in
paragraph 3(A) above shall be determined on the basis that all
accommodation within the Building let or occupied or designed
contracted or adapted for letting or occupation (other than
management accommodation) is fully let on terms which include
service charge provisions consistent with the service charge
provisions contained in this lease (save where otherwise specified
herein) and such proportion shall not be increased or altered by
reason of the fact that at any time any part of such accommodation
may be vacant or that any tenant or other occupier of any other
part of the Building may default in payment of its due proportion
of the Service Cost
4. (A) The Tenant shall pay to the Management Company the Interim Sum
without deduction by equal quarterly instalments in advance on the
usual quarter days unless the Management Company shall reasonably
anticipate that amounts to be incurred during the year immediately
next following are anticipated as being incurred in accordance with
a programme of non equal expenditure in which event the Management
Company shall serve notice to such effect upon the Tenant and shall
thereupon be entitled to require amounts of the Interim Sum to be
paid by advance quarterly instalments of unequal amounts reasonably
stipulated by the Management Company
(B) The Management Company shall be entitled to require as part
of the Interim Sum payments in advance on account of the cost of
the consumption of and supply charges in respect of electricity
consumed within the Premises (save for any amounts which are
invoiced directly by London Electricity plc to the Tenant) such
sums not to exceed a fair and proper estimate of amounts reasonably
anticipated by the Management Company as falling due within the
next quarter
(C) If the Tenant consistently requests the provision of any of the
Services outside Normal Business Hours the Management Company
shall be entitled in addition to require the Tenant to pay along
with payments of the Interim Sum a fair and
46
proper estimate of amounts likely to be payable by the Tenant in
the next quarter on account of such Services in accordance with
the terms of this lease
(D) The Interim Sum for the Accounting Period ending 31st December 1996
shall be pounds sterling 74,000
(E) Either before or as soon as practicable after the commencement of
every Accounting Period the Management Company shall serve or cause
to be served on the Tenant written notice of the Interim Sum for
the relevant Accounting Period Provided that without prejudice to
the provisions of paragraphs 6 and 7 of this schedule if the
written notice aforesaid shall be served after the first occurring
quarter day in the relevant Accounting Period the Tenant shall
until service of the written notice aforesaid make payments on
account of the Interim Sum for the relevant Accounting Period on
the days and in the manner provided by sub-paragraph (A) of this
paragraph of this schedule at an annual rate equal to the Interim
Sum for the immediately preceding Accounting Period
5. (A) As soon as practicable after the expiry of every Accounting Period
(and in any event within 4 months after such expiry) the Management
Company shall serve or cause to be served a Service Charge
Certificate on the Tenant for the relevant Accounting Period
(B) A Service Charge Certificate shall contain a summary of the Service
Cost in respect of the Accounting Period to which it relates and
the relevant calculations showing the Service Charge
(C) The Tenant may request further details of the breakdown of
the expenditure under any particular item or items shown in a
Service Charge Certificate by giving notice thereof in writing to
the Management Company within three months of the date of service
on the Tenant of the relevant Service Charge Certificate and upon
receipt of such a notice the Management Company shall furnish to
the Tenant all such relevant details in its possession or control
or which can reasonably be obtained by it as relate to the
expenditure under the item or items in question at the cost of the
Tenant (include all books of account receipts demands and invoices)
PROVIDED ALWAYS that notwithstanding the giving of any such notice
the Tenant shall nevertheless pay all Interim Sums and Service
Charges as and when they fall due or as may be underpaid from
time to time (but without prejudice to any challenge claim or
dispute that the Tenant may have made or may make in the future in
respect of its Service Charge liability or otherwise)
6. Within fourteen days after the service on the Tenant of a Service Charge
Certificate showing that the Service Charge for any Accounting Period
exceeds the Interim Sum for that Accounting Period the Tenant shall
(without prejudice to any challenge claim or dispute as aforesaid) pay to
the Management Company or as it shall direct a sum equal to the amount by
which the Service Charge exceeds the Interim Sum provided that and the
Tenant hereby acknowledges that if there shall be any such excess in
respect of the Accounting Period the amount of such excess shall be a
debt due from the Tenant to the Management Company and in the event that
such excess is not received in cleared funds by the Management Company
within 14 days of the due date
47
for payment it shall attract interest at the Interest Rate calculated
for the period commencing on the due dates for payment and ending on the
date the sum is subsequently received by the Management Company
notwithstanding that the Term may have expired or been determined before
the service by or on behalf of the Management Company of the relevant
Service Charge Certificate
7. If in any Accounting Period the Service Charge is less than the Interim
Sum for that Accounting Period a sum equal to the amount which the
Interim Sum exceeds the Service Charge shall be accumulated by the
Management Company and shall be applied in or towards the Service Charge
for the next following Accounting Period or Accounting Periods or at or
after the end of the Term repaid to the Tenant within 14 days after
preparation of the Service Charge Certificate and the event that the
excess is not received by the Tenant on the due date for payment it shall
attract interest at the Interest Rate for the period commencing as the
due date for payment and ending on the date that the sum due is received
in cleared funds by the Tenant
8. Unless challenged by the Tenant pursuant to the provisions of paragraph 9
of this schedule every notice certificate calculation determination or
assessment made by or on behalf of the Management Company referred to in
this schedule shall (save where a manifest error appears) be conclusive
and binding upon the parties hereto
9. The Tenant (acting reasonably) may at any time within six months after
the submission of a Service Charge Certificate challenge it on any
reasonable ground (including without limitation on the ground that the
Service Charge therein stated exceeds the Service Charge which should
have been payable had the provisions of this lease been properly adhered
to) Provided that the Tenant gives notice with full particulars of its
ground of alleged challenge and in any such case:
(A) any sum due to or payable by the Management Company pursuant to
paragraphs 6 and 7 above shall still be paid or allowed pending
resolution of the Tenant's challenge as if the Service Charge
Certificate were correct
(B) the Management Company and the Tenant shall endeavour to resolve the
relevant issue but if they cannot do so the issue in dispute shall
be referred to the Expert (acting as an expert and not an
arbitrator) whose decision shall save in the case of manifest error
be binding on the parties (including his decision as to the
responsibility for his costs)
(C) such adjustments to the Service Charge Certificate as may be
required to be made in consequence of the resolution of the dispute
shall be paid as soon as reasonably practicable after such
resolution and any sum due to or payable by the Management Company
shall then be paid or allowed (as the case may be) immediately
together with interest at three per cent below the Interest Rate on
such sum during the period which it has been underpaid or overpaid
10. All sums obtained from the Tenant and any other tenants or occupiers of
the Building towards the Service Cost and sums collected in respect of
the Reserve shall each be placed in separate interest bearing designated
deposit accounts to be applied only towards the cost of providing the
Services and all interest accrued on such deposit account shall be
credited (net of tax) to the account
48
11. The Management Company will account to the Landlord as soon as
practicable following expiry of each Accounting Period for that part of
the Service Charge which relates to costs directly incurred by the
Landlord and not by the Management Company including (but not limited to)
the costs referred to in paragraphs 5 7 8 9 and 12 of Part II of
schedule 6
12. If in the Management Company's reasonable discretion any of the Services
have to be provided to a greater extent (or the cost of provision of such
Services is greater) than would normally apply in the context of the
general management of the Building in accordance with this lease as a
result either:-
(a) of a specific request by the Tenant (with or without other tenants
or occupiers of accommodation in the Building); or
(b) where such provision is required in the interests of good estate
management as a result of any acts or omissions of the Tenant in
relation to its use and occupation of the Premises
then the Management Company shall be entitled to require the Tenant to
meet the cost of such provision (or a fair proportion thereof
determined by the Management Company) within 10 working days
following a demand by the Management Company
SCHEDULE 6
(SERVICES)
PART I
1. Inspecting maintaining repairing amending altering and (where consistent
with an obligation to repair) rebuilding and renewing and where
appropriate treating washing down painting and decorating all load
bearing and other structural parts of the Building and the relevant parts
of it described in paragraphs (ii) and (iii) of schedule 1
2. Inspecting servicing maintaining operating and repairing and (where
consistent with an obligation to repair) renewing amending overhauling
and replacing the Landlord's Services Equipment and all other apparatus
plant machinery and equipment within the Building (if any) from time to
time excluding any "stand alone" systems installed by the Tenant or any
other tenant or occupier of the Building
3. Inspecting servicing maintaining operating repairing cleansing emptying
amending altering and renewing overhauling and replacing all Service
Media
4. Keeping the Common Parts and the car park within the Building properly
cleansed decorated treated maintained and lit to such standard as the
Management Company may from time to time consider adequate but the
Common Parts and the car park shall be operational 24 hours a day 7 days
a week
5. Providing such mechanical ventilation heating and (if deemed reasonably
desirable by the Management Company) cooling for such parts of the
Building and for such hours and times of the year (subject to clause 6)
as the Management Company shall in its discretion reasonably determine
save that such mechanical ventilation heating and cooling for the lifts
lobby and entrance halls and toilets shall be provided throughout
49
Normal Business Hours and at the request of the Tenant outside those
hours subject to the Outside Normal Business Hours Charge
6. Providing and maintaining at the Management Company's discretion any
furniture architectural or ornamental features or murals and any
horticultural displays plants shrubs trees or garden area in the Common
Parts and maintaining the same
7. Supplying whether by purchase or hire and maintaining (and where
consistent with an obligation to repair) renewing replacing repairing
servicing and keeping in good and serviceable order and condition all
fixtures and receptacles appliances materials equipment plant and other
things which the Management Company may reasonably deem desirable or
necessary for the maintenance appearance upkeep or cleanliness of the
Building or any part of it or otherwise in connection with the provision
of the Services
8. Cleaning as frequently as the Management Company shall in its reasonable
discretion consider adequate the exterior and interior of all window
glazing and window frames and other fenestration units in the Common
Parts and the outside of the window glazing referred to in paragraph
(iii) of schedule 1 and the maintenance cleansing repair inspection and
(where necessary) renewal or replacement of all window cleaning) cradles
carriageways and runways
9. Providing a security service 24 hours a day to the Common Parts
(including the ground floor entrance hall at times when receptionists
are not present) and the car park within the Building including where
reasonably appropriate in the Management Company's judgment closed
circuit television and/or other plant and equipment for the purpose of
surveillance and supervision of users of the Building
10. Disposing of refuse from the Building (including collecting and
compacting or otherwise treating or packaging as the Management Company
reasonably thinks fit such refuse and if necessary pest control) and
(and where consistent with an obligation to repair) the provision repair
maintenance and renewal of any plant and equipment in connection
therewith
11. Maintaining 24 hours a day 7 days a week an adequate supply of hot and
cold water and supplying washing and toilet requisites in the lavatory
accommodation in the Building
12. Such rodent or other pest control in the Building as the Management
Company shall reasonably consider necessary or desirable
13. Providing one or more receptionists and/or security in the ground floor
entrance hall of the Building 24 hours a day 7 days a week
14. Providing and maintaining a signboard in the entrance lobby of the
building for the display of tenants' names
15. Controlling so far as practicable 24 hours a day 7 days a week traffic
flow within the car park in the Building and traffic 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
50
16. Providing and maintaining a post room facility for the reception of mail
to the Building
17. Complying with the obligations on the part of the tenant contained in the
Head Lease save for the payment of rent
18. Complying with the obligations set out in clause 6
19. Any other services relating to the Building or any part of it provided by
the Management Company from time to time which shall be:-
(1) reasonably capable of being enjoyed by the occupier of the Premises
or
(2) reasonably calculated to be for the benefit of the Tenant and other
tenants of the Building or
(3) appropriate for the maintenance upkeep or cleanliness of the
Building or
(4) otherwise in keeping with the principles of good estate management
PROVIDED ALWAYS that
(i) Where in this schedule there are references to matters or things
which are then stated to include certain particular matters or
things which are not also stated to be without prejudice to the
generality of the wording preceding it nevertheless the reference to
the particular matters or things shall be deemed to be and in each
case shall be without prejudice to the generality of the wording
preceding it
(ii) The Management Company shall subject to clause 6 when reasonable
have the right to cease or to procure the cessation of the provision
of or add to or procure the addition to any item of Services matter
or thing specified in this schedule if the Management Company shall
having regard to the principles of good estate management reasonably
deem it desirable or expedient so to do but before so doing the
Management Company shall notify all the tenants in the Building but
in the event of any failure of any of the Services shall use all
reasonable endeavours to restore the said Service
(iv) The Management Company or the managing agents may temporarily
withdraw any item of Services matter or thing specified in this
schedule if in their reasonable opinion such withdrawal is in the
interest of good estate management or if such withdrawal is due to
circumstances beyond the control of the Management Company
PART II
1. All fees and disbursements of any individual or firm or company employed
or retained by or on behalf of the Management Company or its agents
(including without limitation managing agents fees) for or in connection
with:-
(1) any surveying or accounting functions for the Building and
51
(2) the performance of the Services or any of them and any other duties
in or about the Building or any part of it relating to the general
management administration security maintenance protection and
cleanliness of the Building
2 The reasonable fees of the Management Company for any of the Services or
for the functions and duties referred to in paragraph 1 of this Part of
this schedule which shall be undertaken by the Management Company and not
by a third party
3. The cost (in addition to any fees referred to in paragraph 2 and where
the context permits paragraph 1 of this Part of this schedule) of
employing (whether by the Management Company or any managing agents or
any other individual or firm or company) such staff as the Management
Company may in its reasonable discretion consider appropriate for the
performance of the Services and the functions and duties referred to in
paragraph 1 of this Part of this schedule and all other incidental
expenditure in relation to such employment including without prejudice to
the generality of the foregoing:-
(1) salaries wages pensions and pension contributions benefits in kind
and other emoluments and National Insurance and other statutory
contributions or levies
(2) the provision of uniforms and working clothing
(3) the provision of vehicles tools appliances cleaning and other
material fixtures fittings and other equipment for the proper
performance of their duties and a store for housing the same and
(4) a reasonable notional rent for any premises reasonably provided rent
free for every such person's use occupancy or residence
4. The cost of entering into any contracts for the carrying out of all or
any of the Services
5. All rates taxes assessments duties charges impositions and outgoings
which are now or during the Term shall be charged assessed or imposed
on:-
(1) the whole of the Common Parts or any part of them
(2) any residential accommodation provided for caretakers and other
staff employed in connection with the Building and any other
premises provided as referred to in paragraph 3(4) of this Part of
this schedule
excluding any tax (other than VAT) payable by the Landlord as a direct
result of any actual or implied dealing with the reversion of any Lease
or of the Landlord's receipt of income
6. The cost of the supply of water electricity gas oil and other fuel for
the provision of the Services and the cost of any electricity generating
transforming monitoring metering and distribution plant machinery and
equipment in or servicing the Building
7. The cost which the Landlord may be called upon pursuant to any Enactment
to pay as a contribution towards the expense of making repairing
maintaining rebuilding and cleansing any ways roads pavements or
structures Service Media or anything which may belong to or be used for
the Building or any part of it exclusively or in common with other
neighbouring or adjoining premises
52
8. The cost of taking all steps deemed desirable or expedient by the
Landlord and/or the Management Company for complying with or making
representations against or otherwise contesting the incidence of the
provisions of any Enactment relating to or alleged to relate to the
Building or any part or it for which any tenant is not directly and
exclusively liable
9. The cost to the Landlord and/or the Management Company of abating any
nuisance in respect of the Building or any part of it insofar as the same
is not the liability of any tenant
10. Any interest and fees incurred in respect of money borrowed in unforeseen
or emergency circumstances to finance the provision of the Services and
the costs referred to in this Part of this schedule or any of them
11. Any VAT (or any tax of a similar nature which may be substituted for or
levied in addition to it) incurred by the Management Company on any other
amount comprised in the Service Cost save to the extent that the
Management Company obtains credit for such VAT incurred by the Management
Company pursuant to sections 24 25 and 26 Value Added Tax Act 1994 or any
regulations made thereunder
12. A reasonable notional rent for any management accommodation provided
within the Building to facilitate the provision of the Services
13. All other reasonable actual costs properly incurred in connection with
the provision of the Services
SCHEDULE 7
(MATTERS TO WHICH THE DEMISE IS SUBJECT)
1. The entries on the registers of Title Number NGL272172 as at the date
hereof
2. Agreement dated 24th November 1995 between The Prudential Assurance
Company Limited (1) 99 Bishopsgate Limited (2) The Scottish Amicable Life
Assurance Society (3)
SCHEDULE 8
PROVISIONS FOR VAT INDEMNITY
PART I
1. Additional Definitions:
"TAX CREDIT" means a credit in respect of, or repayment of, input VAT,
arising by virtue of and determined in accordance with sections 24, 25
and 26 Value Added Tax Act 1994 and regulation made thereunder
"TENANT'S AUDITORS" means the auditors for the time being of the Tenant
provided that they are one of the following firms of accountants -
Deloitte Touche, Coopers and Lybrand, Ernst & Young, KPMG, Price
Waterhouse or Arthur Andersen - or such other reputable firm or
accountants as the Landlord has previously approved for the purpose of
this schedule 8 (such approval not to be unreasonably withheld or
delayed).
53
"VAT ELECTION" means an election under paragraph 2 of Schedule 10 Value
Added Tax Act 1994 made by the Landlord or any person of whom the
Landlord is a "Relevant Associate" within the meaning of paragraph 3(7)
of Schedule 10 or any other election or voluntary act by the Landlord or
any person connected with the Landlord (as determined under the
provisions of Section 839 of the Income and Corporation Taxes Act 1988)
which results in VAT being payable on the rent first reserved by this
lease
"VAT YEAR" means a tax year for Value Added Tax purposes determined in
accordance with Part MV of the Value Added Tax Regulations 1995.
"VAT Year Certificate" means the certificate to be provided by the
Tenant following the end of the Tenant's VAT Year in the form set out in
Part II of this Schedule.
2. Payment of VAT - no VAT Election
In the event that the rent first reserved (or any part thereof)
constitutes consideration for a taxable supply for VAT purposes which
would be a taxable supply whether or not a VAT Election has effect in
respect of the Premises, the Tenant shall pay such VAT in addition to
the rent first reserved without any adjustment of rent first reserved
under this schedule.
3. Adjustment of rent first reserved and payment of VAT - VAT Election made
If and for all periods where the rent first reserved (or any part
thereof) constitutes consideration for a taxable supply for VAT purposes
which would not be a taxable supply but for a VAT Election having effect
in respect of the Premises, the rent first reserved shall be adjusted to
such amount as when aggregated with that part of the VAT chargeable
thereon in respect of which the Tenant does not obtain a Tax Credit,
equals the rent first reserved which would have been paid had no VAT
Election been made.
4. Determination of adjustment of rent first reserved
4.1 At least 28 days prior to (a) 29th September 1998 and (b) every
subsequent anniversary thereof the Tenant shall serve a VAT Year
Certificate on the Landlord. Where the Tenant has served such VAT Year
Certificate (or is deemed to have done so pursuant to paragraph 4.2 of
this Part I below), the Tenant shall pay the amounts (including the VAT)
stipulated (or deemed to be stipulated) in paragraph 3 of such VAT Year
Certificate on the due date for payment of the next installment of the
rent first reserved (and on the due date for subsequent instalments),
subject however to paragraph 4.3 of this Part I below.
4.2 If the Tenant fails to serve a VAT Year Certificate at least 28 days
prior to the due date for payment of the sum in respect of which
paragraph 3 above will apply, the Tenant shall be deemed to have served a
VAT Year Certificate specifying in paragraph 1 thereof the same
estimated proportion as stated in the previous VAT Year Certificate
served, or if no previous VAT Year Certificate has been served by the
Tenant at any time prior to the due date for any VAT Year Certificate an
estimated proportion of nil per cent. If the Tenant fails to serve a VAT
Year Certificate on more than one consecutive occasion the Tenant shall
be deemed, on the second failure and any
54
subsequent failure, until service of the next VAT Year Certificate, to
have served a VAT Year Certificate specifying in paragraph 1 thereof an
estimated proportion of nil per cent.
4.3 The VAT Year Certificate shall be final and binding unless the Landlord
notifies the Tenant within 30 days after the date on which a VAT Year
Certificate has been served that it disputes the VAT Year Certificate on
the grounds of manifest error. Unless such notification is given, no
further adjustments (other than those covered by the VAT Year
Certificate) shall be made in respect of any instalments of rent first
reserved in the VAT Year covered by the aforementioned VAT Year
Certificate. Whether or not the Landlord notifies the Tenant that it
disputes any amount, the Tenant shall pay on the due date for payment of
the next installment of rent first reserved immediately following the
service of the VAT Year Certificate to which the dispute relates, the
amount stipulated in paragraph 3 of the VAT Year Certificate.
4.4 If the Review Rent is not agreed or determined until after a relevant
Review Date, the amount of any increase to be paid pursuant to paragraph
2 of schedule 4 of this lease shall (if paragraph 3 above applies at that
time) be adjusted on the basis of the last VAT Year Certificate. The
adjustment amount shall be paid at the time when the amount of any
unadjusted increase would have been due to be paid and the provisions of
this schedule shall apply as if the amount of the increase were an amount
to which paragraph 3 of Part I of this schedule 8 applied.
4.5 The Landlord may notify the Tenant in writing at any time within five
days of the service of any VAT Year Certificate (or within five days of
the last date on which the Tenant should have served a VAT Year
Certificate and is therefore deemed to have served one) that it requires
the Tenant to obtain a certificate from the Tenant's Auditors at the
Tenant's cost (if adjustments are required following such process) or at
the Landlord's cost (if no such adjustments are required) in the form set
out in the VAT Year Certificate. The Tenant's Auditor's certificate shall
be provided at least eight days prior to the date of payment of the rent
first reserved to which such certificate relates, together with the
Tenant's revised VAT Year Certificate (if required in order for the
Tenant's Auditors to be able to provide a certificate). The Tenant shall
pay in accordance with paragraph 4.1 above the amount stipulated in
accordance with paragraph 3 of such VAT Year Certificate (as revised, if
required) on the date for payment of the rent first reserved.
4.6 If adjustments are required pursuant to any VAT Year Certificate as a
result of the proportion of VAT for which the Tenant has obtained or will
obtain a Tax Credit differing from the proportion previously taken into
account in calculation any payment, any such difference shall be taken
into account (after having determined the amount of rent first reserved
payable in respect of the next quarter in accordance with paragraph 3
above) in calculating the next actual payment of rent first reserved
(either by increase or decrease), the amount of which shall be set out in
paragraph 3 of the VAT Year Certificate.
4.7 Interest shall be payable at three per cent below the Interest Rate by
the Landlord and three per cent below the Interest Rate by the Tenant on
the difference between the amount actually paid pursuant to the relevant
VAT Year Certificate on the due date for payment of any sum to which
paragraph 3 of Part I of this schedule 8 applies and the
55
amount which should have been paid, from such due date until the date of
payment of the adjusted amount pursuant to paragraph 4.3. Where the
actual amount paid (the "Initial Payment") on the due date for payment
of any sum was subsequently adjusted on payment of any later installment
of the rent first reserved ("the Adjusted Payment") in accordance with
paragraph 4.6 of Part I of this Schedule 8 and paragraph 3(b) of the VAT
Year Certificate, the interest shall be calculated on the basis of the
difference between the Initial Payment and the amount which should have
been paid pursuant to paragraph 4.1 until the date of the Adjustment
Payment, and then on the difference between the Adjustment Payment and
the amount which should have been paid until payment of that amount
pursuant to paragraphs 4.3.
4.8 Following any assignment of the whole of the Premises, the provisions of
this schedule 8 shall apply to any new Tenant as if it were the first
Tenant, and a VAT Notice served by the new Tenant shall not take into
account any adjustments made, or to be made, in respect of any previous
Tenant.
5. Miscellaneous
The Tenant shall be at liberty to carry on the ordinary course of its
trade as it wishes and shall not be precluded from proposing or
accepting a method of attribution designed or maximise its Tax Credit
and covenants not to enter any arrangement which has the specific
purpose of increasing the amount by which the rent first reserved is
decreased by virtue of this schedule 8.
56
PART II
VAT YEAR CERTIFICATE
To: The Landlord From: The Tenant
We refer to paragraph 4.3 of Part I of schedule 8 to the Lease dated [ ]
made between 99 Bishopsgate Limited (1) 99 Bishopsgate Management Limited (2)
Hammerson U.K. Properties plc (3) Donaldson Lufkin & Jenrette International
Limited (4) and Donaldson Lufkin & Jenrette Inc. (5) in respect of premises
on [ ] floor of the building known as 99 Bishopsgate London EC2 and pursuant
to that paragraph:
1. Our VAT Year which included the following quarter days [ ],
ended on [ ], ended on [ ].
(a) The part of the VAT charged on the rent first reserved paid in the
VAT Year for or in respect of which we estimate/have determined (in
accordance, where relevant, with the return made, or to be made, for
the prescribed accounting period next following the end of the VAT
Year) we will be unable to obtain credit or repayment is a
proportion of [ ] per cent of the total VAT charged.
(b) The following Table sets out the part of the VAT charged which was
expected to be irrevocable during the VAT Year where it has been
determined on the basis of paragraph 2(a) above that that differs
from the amount of VAT for or in respect of which we actually
obtained, or will be able to obtain, credit or repayment.
Dates Rent first reserved Estimate Adjustment Determination
* ** ***
* estimate of proportion of VAT for or in respect of which we
estimated we would be unable to obtain credit or repayment as set
out initially in VAT Notice.
** adjusted estimate of proportion of VAT for or in respect of which we
estimated we would be unable to obtain credit or repayment as set
out in subsequent VAT Notice.
*** proportion of VAT for or in respect of which we have now
estimated/determined we shall be unable to obtain credit or
repayment, in accordance with Sections 24-26 of the Value Added Tax
Act 1994 and the Value Added Tax Regulations 1995
3. We request that adjustment is made to the next installment of rent first
reserved so as to ensure that the amount of rent first reserved payable
in the VAT Year to which this VAT Year Certificate relates is as provided
in paragraph 3 of Part I of Schedule 8 to the Lease in accordance with
the information given in paragraph 2 above
and we calculate that the next installment of rent first reserved as so
adjusted shall be pounds sterling [ ] exclusive of VAT and the VAT
thereon shall be pounds sterling [ ], and that the interest
57
payable by the Tenant to the Landlord/Landlord to the Tenant, in
accordance with paragraph 4.7 of Part I schedule 8 to the Lease shall be
pounds sterling [ ].
4. We hereby declare that:
(a) we have complied with the covenant imposed upon us by paragraph 6.2
of Part I of schedule 8 to the Lease;
(b) the information contained in this VAT Notice is to the best of our
knowledge, information and belief complete and accurate;
(c) we have made all due returns to the Commissioners of Customs and
Excise and such returns are complete and accurate in all material
respects and have been made within the time limits provided by
statute.
Signed by
an authorised signatory on behalf of the Tenant
The above declaration are, to the best of our knowledge and belief after due
and careful enquiry, true, accurate and complete.
Signed by
Tenant's Auditors
58
THE COMMON SEAL of 99 BISHOPSGATE )
LIMITED was hereunto affixed in the presence of:- )
Director /s/
[SEAL HERE]
Director /s/
THE COMMON SEAL of 99 BISHOPSGATE )
MANAGEMENT LIMITED was hereunto )
affixed in the presence of:- )
Director /s/
[SEAL HERE]
Director /s/
THE COMMON SEAL of HAMMERSON U.K. )
PROPERTIES plc was hereunto affixed in the )
presence of:- )
Director /s/
[SEAL HERE]
Director /s/
59
DATED 24th October 1996
------------------------------------------------------------
99 BISHOPSGATE LIMITED
and
99 BISHOPSGATE MANAGEMENT LIMITED
and
HAMMERSON U.K. PROPERTIES plc
and
DONALDSON, LUFKIN & JENRETTE
INTERNATIONAL LIMITED
and
DONALDSON, LUFKIN & JENRETTE, INC.
------------------------------------------------------------
UNDERLEASE
of
Eighteenth Floor 99 Bishopsgate London EC2
------------------------------------------------------------
HERBERT SMITH
Exchange House
Primrose Street
London EC2A 2HS
Tel: 0171-374 8000
Fax: 0171-496 0043
Ref: 129/P17/30433514
TABLE OF CONTENTS
CLAUSE HEADING PAGE
1. Definitions
Building
Common Parts
Development
Electricity Cost
Enactment
Head Lease/Superior Lease
Insurance Cost
Insurance Rent
Insured Risks
Interest Rate
Lettable Unit
Net Internal Area
Normal Business Hours
Permitted Part
Permitted Use
Planning Law
Plans
Premises
Public Authority
Services
Service Media
Tenant
Term
VAT
2. Interpretation
3. Demise and Rents
4. Tenant's Covenants
(1) Rent
(2) VAT
(3) Outgoings
(4) Compliance with Enactments
(5) Notices
(6) Repair
(7) Decoration and general condition and servicing
(8) Refuse
(9) To permit entry
(10) Compliance with notices relating to repair or condition
(11) Encroachments
(12) Alterations and reinstatement
(13) Use
(14) Signs
CLAUSE HEADING PAGE
(15) Alienation
(16) Registration
(17) Payment of cost of notices consents etc.
(18) Machinery
(19) Obstruction/overloading
(20) Parking/goods delivery
(21) Planning Law and compensation
(22) Indemnity
(23) Defective Premises
(24) Insurance and fire fighting equipment
(25) Dangerous and contaminative materials
(26) Yield up
(27) Regulations and covenants
(28) Security and access
(29) Head Lease
(30) Service Charge
5. Landlord's Covenants
(1) Quiet Enjoyment
(2) Insurance
(3) Head Lease
(4) Electricity Provision
(5) Management Company access
(6) VAT indemnity
6. Provision of Services
7. Provisos
(1) Forfeiture and re-entry
(2) Letting Scheme use and easements
(3) Common Parts and Service Media
(4) Service of notices
(5) Rent cesser
(6) Landlord's liability
(7) Arbitration fees
(8) Rent review memorandum
(9) No warranty as to use
(10) Disputes
(11) Compensation
(12) Rateable value appeals
(13) No warranty as to security
(14) Jurisdiction
(15) Overriding lease
(16)
8. Landlord's Guarantor
9. Tenant's option to determine
CLAUSE HEADING PAGE
10. Guarantee and Guarantor's Indemnity
11. Stamp Duty Certificate
Schedule 1 Premises
Schedule 2 Easements and rights granted
Schedule 3 Exceptions and reservations
Schedule 4 The first reserved rent and the review thereof
Schedule 5 Service Charge
Schedule 6 Services
Schedule 7 Deeds and documents to which the demise is subject
LEASE PARTICULARS
- ------------------------------------------------------------------------------
1. DATE 24TH OCTOBER 1996
THIS LEASE IS AND IS INTENDED TO BE DELIVERED ON THE DATE FIRST
ABOVE WRITTEN
- ------------------------------------------------------------------------------
2. PARTIES
(a) LANDLORD : 99 Bishopsgate Limited
(b) TENANT : Donaldson, Lufkin & Jenrette
International Limited
(c) MANAGEMENT COMPANY : 99 Bishopsgate Management Limited
(d) LANDLORD'S GUARANTOR : Hammerson U.K. Properties plc
(e) TENANT'S GUARANTOR : Donaldson, Lufkin & Jenrette, Inc.
- ------------------------------------------------------------------------------
3. DEMISED PREMISES : ALL THOSE premises on the
EIGHTEENTH floor of the Building
shown for identification only
edged red on Plan 1
- ------------------------------------------------------------------------------
4. BUILDING : 99 Bishopsgate London EC2
- ------------------------------------------------------------------------------
5. CONTRACTUAL TERM AND : Commencing on the date hereof and
TERM COMMENCEMENT expiring on 23rd October 2011
AND EXPIRY DATES
- ------------------------------------------------------------------------------
6. INITIAL RENT : (pounds sterling) 483,165
- ------------------------------------------------------------------------------
7. RENT COMMENCEMENT DATE : 25th March1998
- ------------------------------------------------------------------------------
8. TENANT'S BREAK RIGHT : 24th October 2008
THIS UNDERLEASE made the 24th day of October
nine hundred and ninety six
BETWEEN: -
(1) 99 BISHOPSGATE LIMITED whose registered office is at Lo Lam House Kumul
Highway Port Vila Vanuatu (Co. Regn. No. 10469) (registered under Section
21A to the Companies Act 1985 under company number FC018588 and branch
number BR002962) whose principal place of business is at 100 Park Lane
London W1Y 4AR (the "LANDLORD")
(2) 99 BISHOPSGATE MANAGEMENT LIMITED whose registered office is at 100 Park
Lane London W1Y 4AR (Co. Regn. No. 3071752) (the "MANAGEMENT COMPANY")
(3) HAMMERSON U.K. PROPERTIES PLC whose registered office is at 100 Park Lane
London W1Y 4AR (Co. Regn. No. 298351) (the "LANDLORD'S GUARANTOR")
(4) DONALDSON, LUFKIN & JENRETTE INTERNATIONAL LIMITED whose registered office
is at Moorgate Hall 155 Moorgate London EC2M 6XB (Co. Regn. No. 2475089)
(the "TENANT") and
(5) DONALDSON, LUFKIN & JENRETTE, INC. a corporation incorporated in the State
of Delaware United States of America whose address for the purposes of this
lease is 277 Park Avenue New York New York 10172 (the "GUARANTOR")
WITNESSETH as follows:-
1. DEFINITIONS
In this lease the following expressions have the respective specified
meanings (subject to any particular interpretation required by clause
2):-
(1) "ACTS OF TERRORISM" means any act or omission of any person
acting on behalf of or in connection with any organisation (or on
his own behalf) which carries out activities directed towards
overthrowing or influencing by force or violence Her Majesty's
Government in the United Kingdom or any other government de jure
or de facto
(2) "AGREEMENT FOR INITIAL ALTERATIONS" means the agreement of even
date herewith and made between the Landlord and the Tenant
governing the initial fitting out of the Premises
(3) "BUILDING" means the land (of which the Premises form part)
having a frontage to the west side of Bishopsgate and a return
frontage to the south side of Wormwood Street and all buildings
fixtures and other structures whatsoever from time to time
thereon and the appurtenances thereof which land (together with
the building now erected thereon) is known as 99 Bishopsgate
London EC2 and is for the purpose of identification shown verged
by a blue line on the Building Plan together with any adjoining
areas designated by the Landlord or the Management Company
(4) "COMMON PARTS" means all parts of the Building which are from
time to time intended for the common use and enjoyment of the
tenants and occupiers of the Building and persons claiming
through or under them (whether or not other
parties are also entitled to use and enjoy the same) and reasonably
designated as such by the Landlord and including without prejudice to
the generality of the foregoing the pedestrian ways circulation areas
lobby entrance halls lifts lift shafts fire escapes landings staircases
passages forecourts car park landscaped areas plant rooms management
suites and any other areas which are from time to time during the Term
reasonably provided by the Landlord for common use by or benefit of the
tenants and occupiers of the Building But excluding (for the avoidance
of doubt) any premises intended to be let to any party or for occupation
by the Landlord or the Management Company other than for the provision
of the Services
(5) "DEVELOPMENT" has the meaning ascribed to that expression by Planning Law
(6) "ELECTRICITY COST" means the actual cost to the Landlord of the
provision of electricity to the Premises for consumption by the Tenant
in accordance with its covenant contained at clause 5(4) being a fair
and reasonable proportion as determined by the Landlord of the total
cost of the provision of electricity to the Building as a whole
(including the provision of any security for the supply of electricity
to the Building which may from time to time be required by the relevant
undertaker responsible for the supply of electricity chosen by the
Landlord) which proportion shall so far as practicable (save where the
same are not in working order) be calculated using readings taken in
such manner and at such times as the Landlord shall from time to time
determine of the check meters relating to the Premises from time to time
installed but otherwise shall be determined in such manner as the
Landlord shall in its discretion consider to be fair and reasonable in
all the circumstances
(7) "ENACTMENT" means every Act of Parliament directive and regulation now
or hereafter to be enacted or made and all subordinate legislation
whatsoever deriving validity therefrom
(8) "HEAD LEASE" means the lease under which the Landlord holds the Premises
dated 29th September 1975 made between The Prudential Assurance Company
Limited (1) and Bishopsgate Developments Limited (2) and "Superior
Landlord" means the person for the time being entitled to the reversion
immediately expectant on the term granted by the Head Lease and every
other person having an interest in reversion to that term
(9) "GROUP COMPANY" means a company which is either the holding company of
the Tenant or a wholly owned subsidiary of the Tenant or the Tenant's
holding company (as both expressions are defined in Section 736
Companies Act 1985)
(10) "INSURANCE COST" means in respect of any period for which the same is
required by the Landlord to be calculated the aggregate of the amount
which the Landlord may reasonably expend:-
(a) in effecting and maintaining insurance against the occurrence of
the Insured Risks in relation to the Building in such sum as
represents its then full current replacement cost with such
allowance as the Landlord from time to time considers appropriate
in respect of related liabilities and expenses (including without
limitation liability to pay any fees or charges on the submission
of an application for planning permission and costs which might
be incurred in complying with any Enactment in carrying out
any replacement work and sums in respect of architects' engineers'
and quantity surveyors' and other professional fees and incidental
expenses incurred in relation to any works of debris removal and
of replacement and all VAT) and
(b) in effecting and maintaining any insurance relating to the
property owners' liability and the employer's liability of the
Landlord in relation to the Building and anything done therein
and
(c) in professional fees relating to insurance including fees for
insurance valuations carried out at reasonable intervals by an
independent insurance valuer (but no more than once in any year)
and all reasonable fees and expenses payable to advisers in
connection with effecting and maintaining insurance policies and
claims and
(d) equivalent to the total of all reasonable excess sums (being for
the avoidance of doubt the first part of any insurance claim)
which the insurers are not liable to pay out on any insurance
claim in respect of the Building and which the Landlord or the
Management Company may have expended in replacing the damaged
or destroyed parts of the Building
(11) "INSURANCE RENT" means in respect of any period for which the same is
required by the Landlord to be calculated the aggregate of:-
(a) a fair and reasonable proportion attributable to the Premises of
the Insurance Cost for the relevant period
(b) the reasonable amount which the Landlord may expend in effecting
and maintaining insurance against up to six years' loss of the
rents first and secondly hereinafter reserved and Service Charge
having regard to potential increases of rent in accordance with
schedule 4 and with any addition to the amount insured as the
Landlord may decide in respect of VAT and
(c) (without prejudice to all other provisions of this lease relating
to the use of the Premises and the vitiation of any policy of
insurance) any reasonable amount which the Landlord may expend in
paying all additional premiums and loadings on any policy or
policies of insurance required to be paid as a result of anything
done or omitted (in breach of the terms of this lease) by the
Tenant and
(d) any tax charged on any premium for any such insurance
(12) "INSURED RISKS" means loss damage or destruction whether total or
partial caused by Acts of Terrorism fire lightning explosion riot civil
commotion strikes labour and political disturbances and malicious damage
aircraft and aerial devices (other than hostile aircraft and devices)
and articles accidentally dropped from them storm tempest flood bursting
or overflowing of water tanks and pipes impact earthquake and accidental
damage to underground water oil and gas pipes or electricity wires and
cables subsidence ground slip and heave and such other usual commercial
risks or perils against the occurrence of which the Landlord may from
time to time in its reasonable discretion deem it desirable to insure
subject to such exclusions and limitations as are from time to time
commonly
imposed by insurers and subject also to the exclusion of such of the
risks specifically hereinbefore mentioned as the Landlord may in its
reasonable discretion decide where insurance cover in respect of the risk
in question is not for the time being available in the London insurance
market on reasonable terms
(13) "INTEREST RATE" means a yearly rate three per cent above either the base
rate of Barclays Bank plc or such other bank (being for the time being
generally recognised as a clearing bank in the London market) as the
Landlord may from time to time use for general banking purposes or if
the base rate cannot be ascertained then above such other rate as the
Landlord may reasonably specify (and so that whenever there is reference
in this lease to the payment of interest at the Interest Rate such
interest shall be calculated on a daily basis and compounded with
quarterly rests on the usual quarter days)
(14) "LANDLORD'S SERVICES EQUIPMENT" means all the plant machinery and
equipment (with associated Service Media) within or serving the Building
from time to time (whether or not within the Premises or other premises
let or intended to be let by the Landlord) comprising or used in
connection with the following systems (to the extent specified in the
following paragraphs of this definition):-
(i) the whole of the sprinkler system within the Building (including
sprinkler heads)
(ii) the whole of the fire detection and fire alarm systems
(iii) the whole of the permanent fire fighting systems (but excluding
portable fire extinguishers installed by the Tenant or other
tenants of the Building)
(iv) the whole of the chilled water system
(v) the whole of the building management system (including the
building security system) installed by the Landlord
(vi) the central electrical supply system from the mains supply into
the Building so far as (and including) the electrical riser
busbars connecting to the distribution boards at each level in
the Building which is let or intended to be let by the Landlord
(vii) the whole of the air handling system and the electricity supply
and control systems for the same
(viii) the standby generators and associated cabling wiring and duct work
but excluding in each case any "stand alone" systems installed by the
Tenant or any other tenant or occupier of the Building
(15) "LETTABLE UNIT" means any unit of accommodation forming part of the
Building which is intended by the Landlord at any material time to be
for separate occupation
(16) "NET INTERNAL AREA" has the meaning ascribed to that expression by the
Code of Measuring Practice - Fourth Edition (RICS/ISVA 1993) (or if
there shall be no such edition or no such expression for the time being
the nearest equivalent thereto)
[GRAPHICS OMITTED]
99 BISHOPSGATE EC2
EIGHTEENTH FLOOR TOWER
[GRAPHICS OMITTED]
99 BISHOPSGATE LONDON, EC2
BUILDING PLAN
(17) "NORMAL BUSINESS HOURS" means 7.30 am. to 7.30 p.m. on Mondays to
Fridays inclusive (except bank holidays) subject to expansion of
such hours at the reasonable discretion of the Landlord provided
that such hours will automatically expand if any other tenant in
the Building is granted the benefit of any expanded hours
(18) "OUTSIDE NORMAL BUSINESS HOURS CHARGE" means the whole of the
actual cost to the Management Company of carrying out or providing
any of the Services at the request of the Tenant outside Normal
Business Hours other than any services which are stated to be
provided 24 hours a day (including without prejudice to the
generality of the foregoing costs and expenses in the nature of
those set out in Part II of schedule 6) or in the event of any of
the Services being carried out or provided outside Normal Business
Hours to the Tenant and any other tenant or tenants of the
Building a fair proportion thereof (on a fair and reasonable basis
between the Tenant and any other tenant or occupier making use of
such Services) as reasonably determined by the Landlord. PROVIDED
THAT during the first year of the Term the cost of providing air
conditioning outside Normal Business Hours shall not exceed pound
sterling 88 per hour (in respect of the Premises being the only
user of air conditioning at the relevant time) or pounds sterling
48 per hour per floor on the basis that any five of floors 18, 20
and 22 to 26 of the Building are simultaneously using such air
conditioning over the whole of such floors
(19) "PERMITTED PART" means any part or parts of the Premises capable
of separate occupation
(20) "PERMITTED USE" means use as high class offices for any purpose
within Class B1(a) (but not for any other purpose within that Use
Class) of the schedule to the Town and Country Planning (Use
Classes) Order 1987 and for the avoidance of doubt use of the
Premises for data processing investor services business trading
operators and investment banking complies with this provision
(21) "PLANNING LAW" means every Enactment for the time being in force
relating to the use development and occupation of land and
buildings and every planning permission statutory consent and
agreement made under any Enactment relating to the Building
(22) "PLANS" means the plans annexed hereto and "Building Plan" means
that one of them so marked
(23) "PREMISES" means the premises described in schedule 1 and all
permitted additions alterations and improvements made to them
(24) "PUBLIC AUTHORITY" means any Secretary of State and any government
department public local regulatory fire or any other authority or
institution having functions which extend to the Premises or their
use and occupation and any court of law and the companies or
authorities responsible for the supply of water gas and
electricity or any of them and any of their duly authorised
officers
(25) "REINSTATEMENT SPECIFICATION" means the specification annexed
hereto or in the event that materials listed in the specification
are not available from time to time or appropriate for use (in the
Landlord's reasonable opinion) then reference to such materials
will be substituted by reference to materials of not materially
less quality which perform a similar function PROVIDED THAT save
to the extent
5
that items of plant and equipment have been altered during the
Term the Tenant shall not be required to replace existing items
of plant and equipment for new items subject to the existing
items being in good working order
(25) "REVIEW DATE" means each of:-
(a) the 24th October in the years Two thousand and one and every
fifth anniversary of that date during the Term (and the last
day of the Term)
(b) any date so stipulated by virtue of paragraph 5 of
schedule 4
(26) "SERVICES" means the services and other matters specified in
clause 6 and Part I of schedule 6
(27) "SERVICE MEDIA" means those parts of the Building comprising gas
water drainage electricity telephone telex signal and
telecommunications heating cooling ventilation air conditioning
fire alarm and other pipes drains sewers mains cables wires supply
lines ducts conduits flues and all other common conducting media
plant appliances and apparatus for the provision supply control
and monitoring of services to or from the Building and other
common equipment
(28) "TERM" means a term of years commencing on the date hereof and
expiring on 23rd October, 2011 and includes any period of holding
over or extension whether by any Enactment or common law
(29) "TERMINATION NOTICE" means not less than 12 months and 1 day's
prior written notice unless either:
(a) any Enactment or decision not capable of appeal on a point
of law confirming that the Tenant is not entitled to a new
tenancy on the expiration of such notice is in force or
upheld as at 22nd October 2007 (in which case not less
than 6 months prior written notice need be given); or
(b) any other tenant enters into a lease prior to September 1998
of premises comprising at least a floor of the building
within the security of tenure protections of the Landlord
and Tenant Act 1954 for a term of not less than 10 years
(without break rights) and is granted right to determine
such lease on less than such 12 months' and 1 day's prior
written notice (in which case the notice period hereunder
shall be reduced to such notice period as is granted to such
tenant in such circumstances)
(30) "VAT" means Value Added Tax as referred to in the Value Added Tax
Act 1994 (or any tax of a similar nature which may be substituted
for or levied instead of it by statutes)
2. INTERPRETATION
(1) Words importing the singular include the plural and vice versa and
words importing one gender include both other genders
(2) The expressions "Landlord" "Tenant" "Management Company" and
"Guarantor" wherever the context so admits include their
respective successors in title and
6
where a party comprises more than one person covenants and obligations
of that party take effect as joint and several covenants and obligations
(3) A covenant by the Tenant not to do (or omit) any act or thing also
operates as a covenant to use reasonable endeavours not to permit
or suffer it to be done (or omitted) and to prevent (or as the
case may be to require) it being done
(4) References in this lease to:-
(a) any clause sub-clause schedule or paragraph is a reference
to the relevant clause sub-clause schedule or paragraph of
this lease and clause and schedule headings shall not affect
the construction of this lease
(b) any right of (or covenant to permit) the Landlord or the
Management Company to enter the Premises shall also be
construed (subject always to the proviso to clause 4(9)) as
entitling the Landlord to remain on the Premises with or
without equipment and permitting such right to be exercised
by all persons authorised by the Landlord for as short a
period as reasonably practicable and making good all damage
caused and causing as little inconvenience as reasonably
possible save where the right of entry is exercised to
remedy any breach hereunder where the Landlord only
undertakes to make good damage caused
(c) any consent licence or approval of the Landlord or words to
similar effect mean a consent licence or other approval in
writing signed by or on behalf of the Landlord and given
before the act requiring consent licence or approval
(d) the Premises (except in clause 4(15)) shall be construed as
extending where the context permits to any part of the
Premises
(e) a specific Enactment includes every statutory modification
consolidation and re-enactment and statutory extension of it
for the time being in force except in relation to the Town
and Country Planning (Use Classes) Order 1987 which shall be
interpreted exclusively by reference to the original
provisions of Statutory Instrument 1987 No 764 whether or
not the same may at any time have been revoked or modified
(f) the last year of the Term includes the final year of the
Term if it shall determine otherwise than by effluxion of
time and references to the expiry of the Term include such
other determination
(5) (a) Where the context permits rents or other sums being due from
the Tenant to the Landlord or the Management Company mean
that they are exclusive of any VAT
(b) whenever the consent licence or approval of the Landlord is
required under this lease the relevant provision shall be
construed as also requiring (and any consent licence or
approval given by the Landlord shall be deemed subject to
the need for) the consent licence or approval of the
Superior Landlord (for which the Landlord shall apply at the
Tenant's reasonable cost) where the same is required
under the Head Lease except that nothing in this lease or in
any consent licence or approval by the
7
Landlord shall imply that the Superior Landlord's consent
licence or approval will not be unreasonably withheld or
delayed
(c) references to any right of (or covenant to permit) the
Landlord to enter the Premises shall extend to the
Superior Landlord and to all persons authorised by it and
shall be construed in the manner required by clause
2(4)(b) but in relation to the Superior Landlord and those
with its authority
(d) the rights excepted and reserved in schedule 3 are also
excepted and reserved for the benefit of the Superior
Landlord
3. DEMISE AND RENTS
The Landlord at the request of the Guarantor DEMISES unto the Tenant ALL
THAT the Premises TOGETHER WITH the easements and rights specified in
schedule 2 exercisable in common with the Landlord and all others with
its authority or otherwise from time to time entitled thereto EXCEPT and
RESERVED unto the Landlord and all other persons authorised by it from
time to time during the Term or otherwise from time to time entitled
thereto (including the Management Company in relation to the provision
of the Services) the easements and rights specified in schedule 3
TO HOLD the Premises unto the Tenant (together with and except and
reserved as aforesaid) for the Term SUBJECT to all rights easements
covenants stipulations and other matters affecting the same and SUBJECT
to the provisions of the deeds and documents mentioned in schedule 7
YIELDING AND PAYING therefor:
FIRST yearly and proportionately for any part of a year until 24th March
1998 a peppercorn (if demanded) and thereafter until the first Review
Date (and thereafter as determined pursuant to schedule 4) the yearly
rent of Four hundred and eighty three thousand one hundred and sixty
five Pounds (pound sterling 483,165) exclusive of VAT (subject to clause
5(6)) payable by equal quarterly payments to be made in advance on the
usual quarter days in every year the first such payment to be made on
25th March 1998
SECONDLY as additional rent from time to time the Insurance Rent payable
on demand
THIRDLY as additional rent on demand (in addition and without prejudice
to the Landlord's right of re-entry and any other right) interest at the
Interest Rate on any sum owed by the Tenant to the Landlord whether as
rent or otherwise which is not:-
(a) received in cleared funds by the Landlord within 10 days
following the due date (or in the case of money due only on
demand within fourteen days after the date of demand) calculated
for the period commencing on the due date for payment and ending
on the date the sum and the interest is received in cleared
funds by the Landlord
(b) demanded (or if tendered is for the time being refused) by the
Landlord in circumstances where it is prudent for it not to
demand or accept any payment having regard to a breach of any of
the Tenant's obligations under this lease of which the Tenant
has received notice calculated for the period commencing on the
due date for payment and ending on the date the sum (and the
interest) is subsequently received by the Landlord
8
FOURTHLY as additional rent all VAT for which the Landlord is or may
become liable to account to H.M. Customs & Excise (or other relevant
body to whom account has for the time being to be made) on the supply by
the Landlord to the Tenant under or in connection with the provisions of
this lease or the interest created by it and of any other supplies
whether of goods or services such rent fourthly reserved to be due for
payment contemporaneously with the other rents or sums to which it
relates
AND FIFTHLY a rent equal to the Electricity Cost such rent to be payable
on demand (either annually or by instalments) as the Landlord shall
determine
4. TENANT'S COVENANTS
The Tenant covenants with the Landlord (and in respect of sub-clause
4(30) also with the Management Company) throughout the Term subject to
clause 4(15):
RENT
(1) To pay the rents reserved by this lease on the days and in the
manner set out in clause 3 without deduction or set off and
(unless for the time being the Landlord shall have required in
writing to the contrary) to pay the rent first reserved (together
with any sum in respect of the rent fourthly reserved as may be
applicable thereto) by banker's standing order to such bank as the
Landlord may from time to time nominate
VAT
(2) Subject to clause 5(6) wherever the Tenant is required to pay any
amount to the Landlord hereunder by way of reimbursement or
indemnity to pay on the production of a valid VAT invoice to the
Landlord (as applicable) in addition an amount equivalent to any
VAT incurred by the Landlord save to the extent that the Landlord
obtains credit for such VAT incurred by the Landlord pursuant to
sections 24 25 and 26 Value Added Tax Act 1994 or any regulations
made thereunder
OUTGOINGS
(3) To pay all rates taxes charges and other outgoings whatsoever now
or hereafter assessed charged or imposed upon the Premises or upon
their owner or occupier (and a proper proportion determined by the
Landlord attributable to the Premises of any rates taxes charges
and other outgoings now or hereafter assessed charged or imposed
upon the Premises in common with other premises or upon the owners
or occupiers thereof) and (to the extent the Tenant does not pay
it directly to the relevant supplier) the total cost (including
meter rents) of all water (including chilled water) electricity
and gas separately metered and/or exclusively supplied to the
Premises during the Term as reasonably determined by the Landlord
excluding (without prejudice to the rent fourthly reserved and
clause 4(2)) any tax payable by the Landlord as a direct result of
any actual or implied dealing with the reversion of this lease or
of the Landlord's receipt of income
COMPLIANCE WITH ENACTMENTS
(4) To comply with the requirements of all Enactments and of every
Public Authority (including the due and proper execution of any
works) in respect of the Premises their use occupation
employment of personnel in them and any work being
9
carried out to them (whether the requirements are imposed upon the
owner lessee or occupier) and not to do or omit anything by which
the Landlord may become liable to make any payment or do anything
under any Enactment or requirement of a Public Authority
NOTICES
(5) As soon as reasonably practicable and in any event within 5
working days of receipt of the same to give to the Landlord notice
of (and a certified copy of) any notice permission direction
requisition order or proposal made by any Public Authority and
without delay to comply in all respects at the Tenant's cost with
the provisions thereof save that the Tenant shall if so required
by and at the cost of the Landlord make or join in making such
objections or representations in respect of any of them as the
Landlord may reasonably require
REPAIR
(6) To put and keep the Premises (and any works or installations made
pursuant to paragraphs 4 and 5 of Schedule 2) in good and
substantial repair and condition (damage by any of the Insured
Risks excepted to the extent that the insurance money shall not
have been rendered irrecoverable subject to clause 5(2)(b) or
insufficient because of some act or default of the Tenant or of
any person deriving title under or through it or their respective
servants or agents or invitees) and to replace whenever necessary
during the Term and on expiry of the Term the landlord's fixtures
and fittings (including any fitted carpets) in the Premises which
may have become beyond economic repair with items of the same type
and quality
DECORATION AND GENERAL CONDITION AND SERVICING
(7) (a) To keep the Premises maintained to a high standard of
decorative order and finish and properly cleansed and tidy
and (without prejudice to the foregoing) as often as the
same shall be necessary (and not less frequently than once
in every fifth year of the Term but not more than once in
any 18 month period) and also in the last year of the Term
to clean paint polish or otherwise treat as the case may
be all inside surfaces of wood and metal work of the
Premises usually or requiring to be painted polished or
otherwise treated with two coats at least of high quality
paint or polish vinyl wall coverings (where applicable) or
other appropriate materials in a good and workmanlike
manner (and during the last year of the Term in the colour
scheme specified and otherwise in accordance with the
Reinstatement Specification) PROVIDED ALWAYS THAT the
Tenant shall not be obliged to carry out any such
decorative treatment if the need for it is caused by
damage by any of the Insured Risks to the extent (subject
to clause 5(2)(b)) that the insurance money shall not have
been rendered irrecoverable or insufficient because of
some act or default of the Tenant or of any person
deriving title under or through it or their respective
servants agents or invitees
(b) To clean the inside of all external window glazing in the
Premises at least once in every month using reputable
contractors
10
(c) To enter into and maintain contracts for the regular inspection
maintenance and servicing of all fixed plant and equipment
comprised in the Premises which has or is likely to have any
impact on the Landlord's Services Equipment by reputable
contractors approved by the Landlord (such approval not to be
unreasonably withheld) and to obtain satisfactory test
certificates as may be reasonably required by the insurers
and whenever reasonably required to produce copies of such
contracts and certificates
REFUSE
(8) Not to deposit any refuse on any of the Common Parts except in
areas designated for such purpose from time to time by the
Landlord and to comply with all requirements of any Public
Authority and any reasonable regulations made by the Landlord
pursuant to clause 4(27) in relation to control over and disposal
of rubbish
TO PERMIT ENTRY
(9) To permit the Landlord (and persons authorised by the Landlord) at
reasonable times in compliance with the Tenant's reasonable
security requirements on reasonable prior written notice (except
in an emergency) to enter the Premises in order to:-
(a) examine their state of repair
(b) ascertain that the covenants and conditions of this lease
have been observed
(c) take any measurement or valuation of the Premises
(d) rebuild renew cleanse alter test maintain repair inspect and
make connections to any part of the Building including the
Service Media (PROVIDED that the Landlord will procure that
such entry takes place outside Normal Business Hours where
practicable)
(e) during the last six months of the Term (or at any time in
the case of a disposal of the Landlord's interest) to show
the Premises to prospective purchasers or tenants and their
agents
(f) exercise the rights described in schedule 3
COMPLIANCE WITH NOTICES RELATING TO REPAIR OR CONDITION
(10) (a) To comply with any notice requiring the Tenant to remedy any
breach of its covenants
(b) If the Tenant shall not within a reasonable time comply with
any such notice to permit the Landlord and any authorised
person to enter the Premises to remedy the breach as the
Tenant's agent and at the Tenant's proper cost the Landlord
making good any damage caused
(c) To pay to the Landlord on demand all the proper costs and
expenses incurred by the Landlord under the provisions of
this sub-clause
11
ENCROACHMENTS
(11) (a) To preserve all rights of light and other easements belonging
to the Premises and not knowingly to give any acknowledgment
that they are enjoyed by consent
(b) Not knowingly to do or omit anything which might subject the
Premises to the creation of any new easement and to give
notice to the Landlord forthwith of any encroachment which
might have that effect
ALTERATIONS AND REINSTATEMENT
(12) (a) Not to carry out any Development of or on the Premises nor
(without prejudice to the exclusion of structural parts from
the demise of the Premises) any works affecting any
structural parts of the Building and not to commit any waste
(b) Without prejudice to any other rights of the Landlord in
respect of areas not included in the Premises not to install
or erect any exterior lighting shade or awning or place any
structure or other thing outside the Premises
(c) Without prejudice to paragraphs (a) and (b) of this
sub-clause and subject to the provisos to this paragraph (c)
not to make any other alteration or addition to the Premises
(including all electrical and other plant and equipment and
the installation and removal of demountable partitioning)
except:-
(i) in accordance with plans and specifications
(adequately describing the work in question and the
manner in which the work will be carried out)
previously submitted at the Tenant's expense in
triplicate to and approved by the Landlord (such
approval not to be unreasonably withheld or delayed
PROVIDED THAT the Landlord shall respond to the
Tenant's submission within 10 working days in the case
of minor alterations (excluding any alterations which
affect any of the Landlord's Services Equipment) and
if the Landlord fails to respond within 10 working
days as aforesaid it shall be deemed to have accepted
such minor alterations AND PROVIDED FURTHER that the
initial fitting out of the Premises following the date
hereof shall be governed by the Agreement for Initial
Alterations
(ii) in a manner which shall not materially and adversely
affect the Landlord's Services Equipment any Service
Media or the provision of any of the Services
(iii) in accordance with any relevant terms conditions
recommendations and regulations of any Public
Authority (and in particular in relation to any
electrical installation in accordance with the terms
and conditions laid down by the Institution of
Electrical Engineers and the Regulations of the
Electricity Supply Authority) and the insurance
company with whom the Premises are for the time being
insured and
(iv) in a good and workmanlike manner
12
PROVIDED ALWAYS THAT subject to clause 4(12)(c)(i):-
(I) no such alterations or additions shall be carried out
until the Landlord has issued its consent in writing
to which the Tenant shall if required join as a party
(II) once any such alterations or additions have been
carried out the Tenant shall supply to the Landlord
as-built plans in triplicate (together with a computer
aided design disk and 35 mm slides) showing the works
as carried out
(d) At the expiry of the Term to remove:-
(i) all alterations and additions made to the Premises by
the Tenant
(ii) all work done in connection with the original fitting
out by the Tenant in pursuance of the Agreement for
Initial Alterations
and to restore and make good the Premises in accordance with
the Reinstatement Specification in a proper and workmanlike
manner to the condition and design which existed before the
alterations or additions were made with all services
properly sealed off
USE
(13) Not to use the Premises or any chattels in them:-
(a) for any purpose (and not to do anything in or to the
Premises) which may be or become or cause a nuisance
obstruction or damage to any person or property
(b) for a sale by auction or for any public meeting or for any
dangerous noxious noisy illegal or immoral trade business or
activity or for residential purposes and not to use the
Common Parts for the transaction of any business or
(c) (without prejudice to the preceding paragraphs of this
sub-clause) except for the Permitted Use
SIGNS
(14) (a) Not to erect any aerial satellite dish sign signboard pole
antenna wire or other apparatus on the outside of the
Building save for the right granted pursuant to paragraph
3 of schedule 2
(b) Not to affix or exhibit so as to be visible from outside the
Premises any placard sign notice fascia board or
advertisement except the approved signs referred to in
paragraph 3 of schedule 2
ALIENATION
(15) (a) If the Tenant at any time desires to assign the whole of the
Premises the Tenant shall first by an irrevocable
unconditional written notice ("the Tenant's Notice") served
upon the Landlord offer to surrender or assign
13
this lease upon such financial terms and conditions as the
Tenant may desire
(b) If the Landlord wishes to accept such surrender or
assignment it shall within twenty-one days of receipt of the
Tenant's Notice serve a counter-notice ("the
Counter-Notice") upon the Tenant stating as much
(c) If the Landlord serves a Counter-Notice on the Tenant then
the Tenant shall surrender or assign (at the Landlord's
option) the Premises to the Landlord (or as the Landlord may
direct) within six months of receipt of the Counter-Notice
either with vacant possession or subject only to a permitted
underletting and the Tenant's liability hereunder shall
cease in respect of any matters arising following the date
of such assignment or surrender but without prejudice to any
antecedent breaches of covenant
(d) If the Landlord does not serve a Counter-Notice then the
Tenant must (if it wishes to assign) complete its assignment
on terms greater than 95 per cent in value of the terms and
conditions stipulated in the Tenant's Notice within six
months from the date of the Tenant's Notice and if the
Tenant shall fail to complete within such period if it still
wishes to assign the whole of the Premises it must reinstate
the procedure set out in this clause 4(15)
(e) Subject to the foregoing provisions of this sub-clause 4(15)
not to assign mortgage charge or underlet or in any other
manner part with possession of any part (being less than the
whole) of the Premises or agree to do so except that the
Tenant may underlet the whole of (but not more or less than)
any Permitted Part or Permitted Parts in accordance with
paragraphs (h) and (i) of this sub-clause
(f) Subject to the foregoing provisions of this sub-clause 4(15)
not to assign underlet or otherwise part with possession of
or the whole of the Premises or agree to do so except that
the Tenant may assign or underlet the whole of the Premises
in accordance with paragraph (g) or (h) respectively of this
sub-clause
(ASSIGNMENT)
(g) (i) Not to assign the whole of the Premises without first
obtaining the Landlord's consent issued within 2 months
before completion of the assignment which consent shall
not be unreasonably withheld or delayed but which may be
granted subject to any one or more of the conditions
referred to in paragraph (g)(ii) and which may be
withheld if any one or more of the circumstances
referred to in paragraph (g) (iii) exist
(ii) The conditions referred to in paragraph (g)(i) (which
are specified for the purposes of section 19(1 A)
Landlord and Tenant Act 1927) are:
AUTHORISED GUARANTEE
(a) that the Tenant shall enter into an authorised guarantee
agreement (as defined in section 16 Landlord and Tenant
14
(Covenants) Act 1995) with the Landlord in a form which
the Landlord reasonably requires
THIRD PARTY GUARANTEE/RENT DEPOSIT
(b) that if so reasonably required by the Landlord the proposed
assignee shall have procured covenants with the Landlord by
a guarantor or guarantors (not being the Tenant or any
guarantor) reasonably acceptable to the Landlord in a form
acceptable to the Landlord (acting reasonably);
INTRA GROUP DEALINGS
(c) if the proposed assignee is a Group Company the Tenant shall
have procured either:
(A) if the Tenant's obligations under this lease are
guaranteed by another Group Company that such Group
Company covenants with the Landlord on the same terms
(mutatis mutandis) as those contained in clause 10; or
(B) if there is no guarantor of the Tenant's obligations
under this lease and if the assignee is not at the
date of the application for consent to the proposed
assignment in the reasonable opinion of the Landlord
of financial standing equivalent to or greater than
the Tenant at the date of this lease that the proposed
assignee procures covenants by a Group Company which
is not the Tenant or the proposed assignee and which
is in the reasonable opinion of the Landlord of
financial standing equivalent to or greater than the
Tenant in the same terms (mutatis mutandis) as those
contained in clause 10; and
(iii) The circumstances referred to in paragraph (g)(i) (which are
specified for the purposes of section 19(1 A) Landlord and Tenant
Act 1927) are:-
(a) where the Tenant's solicitors have not given an undertaking
to the Landlord's solicitors to pay all reasonable legal
surveyor's and management costs disbursements and VAT
arising on the application for consent to such assignment
whether or not consent is granted unless the Landlord
unreasonably withholds consent in circumstances where it is
required to be reasonable; and/or
(b) where any of the rents and Interim Sum due from the Tenant
to the Landlord or the Management Company
15
respectively under this lease remain unpaid at the date of
the application for consent to the proposed assignment
(UNDERLETTING)
(h) Not to underlet the whole of the Premises or any Permitted
Part (each being referred to in this paragraph as the
premises) except:-
(i) to a person who before the underletting shall have
covenanted with the Landlord to observe and perform
the Tenant's obligations under this lease during the
sub-term to the extent they relate to the premises
demised by the underletting (other than the payment of
rents) and a covenant not to assign the whole of the
premises without the Landlord's consent (which shall
not be unreasonably withheld or delayed) and an
unqualified covenant not to assign part of the
premises or to underlet or otherwise part with
possession or share the occupation of the premises or
any part of them
(ii) by reserving as a yearly rent without payment of a
fine or premium (in addition to the service and
insurance and other rents payable under this lease
except the rent first hereby reserved or (in the case
of underletting of a Permitted Part) a pro rata
proportion of them) an amount equal to:-
(a) (in the case of an underletting of the Premises)
the then open market rack rental value of the
Premises
(b) (in the case of an underletting of a Permitted
Part) a pro rata proportion of the then open
market rack rental value of the Premises
the proportion in each case being calculated by
reference to the Net Internal Area of the Permitted
Part in relation to the Net Internal Area of the
Premises, in all cases such rent to be payable by
equal quarterly instalments in advance on the usual
quarter days and to be approved by the Landlord prior
to the underletting (such approval not to be
unreasonably withheld or delayed) but the amount of
such rent and the approval of the Landlord thereto may
not be used as evidence by the Tenant for the purpose
of any rent review pursuant to this lease
(iii) by a form of underlease:-
(a) by which the principal rent reserved by the
underlease is reviewed upwards only at not
greater than five year intervals during the
sub-term in accordance with the same principles
(mutatis mutandis) and at the times as apply to
the rent first reserved by this lease
(b) requiring the underlessee to observe and perform
all the covenants and other provisions binding
on the Tenant under this lease (other than the
covenant by the Tenant to
16
pay rents) to the extent they relate to the
premises and containing:-
(A) a condition for re-entry by the underlessor on
breach of any covenant by the underlessee
(B) a qualified covenant not to assign the whole of
the premises and an absolute covenant not to
assign part of the premises or to underlet or
otherwise part with possession or share the
occupation of the premises or any part of them
(iv) with the Landlord's consent issued within three months
before completion of the underletting which consent
(subject to compliance with the foregoing conditions
precedent) shall not be unreasonably withheld or
delayed
(i) In relation to an underlease of a Permitted Part:-
(i) not to include in the sub-demise any part of the entrance to
or the reception area of the Premises
(ii) to except from the underlease all necessary circulation
areas and plant and equipment which will serve the Premises
in common and to reserve a separate service charge rent in
respect of their maintenance repair and renewal
(iii) not as a result of the grant to create or permit the
creation of more than four separate occupations affecting
the whole of the Premises (occupations in right of this
lease counting as one occupation)
(iv) not to grant or agree to grant the underlease without
providing for the exclusion of sections 24 to 28 inclusive
of the Landlord and Tenant Act 1954 in relation to the
underlease in pursuance of an Order duly made under section
38(4) of that Act before the date of grant
(j) To enforce the observance and performance by every such
underlessee and its successors in title of the provisions of the
underlease and not expressly or impliedly to waive any breach of
them nor vary the terms of any underlease
(k) Not to agree any reviewed rent payable under an underlease without
the Landlord's consent and if the rent review under any underlease
is to be determined by an independent person not to agree his
appointment without the Landlord's consent (PROVIDED ALWAYS THAT
the Landlord shall not unreasonably withhold or delay any consent
required under this sub-paragraph) and to procure that any
representations which the Landlord may wish to make in relation to
the rent review are duly submitted to the independent person and
to provide to the Landlord promptly on the same becoming available
copies of any representations made by or on behalf of the Tenant
or the underlessee in relation to such rent review
17
(SHARING OCCUPATION)
(l) Not to part with or share the occupation of the Premises or any
part of them except that the Tenant may share occupation with a
company which is (but only for so long as it remains) either the
holding company of the Tenant or a majority-owned subsidiary of
the Tenant or of the Tenant's holding company (as those
expressions are defined in section 736 Companies Act 1985) so long
as the Tenant does not grant the person sharing occupation
exclusive possession (so that such company occupies as licensee
only without creating any relationship of landlord and tenant) nor
otherwise transfer or create a legal estate and the Tenant shall
notify the Landlord of the identity of each company in occupation
REGISTRATION
(16) (a) Within twenty-one days after any disposition or devolution of
this lease or of any estate or interest in or derived out of
it to give notice in duplicate of the relevant transaction to
the Landlord for registration with a certified copy of the
relevant instrument and to pay to the Landlord a fair and
reasonable fee for each such registration of not less than
twenty five pounds
(b) To register with the Landlord particulars of the
determination of every rent review under any underlease of
the Premises within fourteen days after the date of
determination
PAYMENT OF COST OF NOTICES CONSENTS ETC.
(17) To pay on demand all reasonable expenses (including counsels'
solicitors' surveyors, and bailiffs' fees) properly incurred by the
Landlord in and incidental to:
(a) the preparation and service of a notice under section 146
Law of Property Act 1925 or in contemplation of any
proceedings under section 146 or 147 of that Act
notwithstanding that forfeiture is avoided otherwise than by
relief granted by the court and
(b) every reasonable step taken during or after the expiry of
the Term in connection with the enforcement of the Tenant's
obligations under this lease including the service or
proposed service of all notices and schedules of
dilapidations and
(c) every application for consent licence or approval under this
lease but not if the application is unreasonably refused or
delayed or granted subject to unreasonable conditions (where
such consent is not to be unreasonably withheld or delayed)
MACHINERY
(18) Not to install in the Premises any plant or machinery other than
usual office equipment without the Landlord's consent which shall
not be unreasonably withheld PROVIDED ALWAYS THAT no plant or
machinery shall be installed or operated in the Premises and
nothing shall be done or omitted in them which may cause:-
18
(a) the efficiency of the heating ventilation air conditioning
and cooling system installed in the building to be
diminished or impaired in any way
(b) noise dust fumes smell vibration or electrical interference
affecting or having any other intrusive effect on any other
part of the Building or other adjoining property or persons
outside the Premises
OBSTRUCTION/OVERLOADING
(19) Not to obstruct:-
(a) or damage any part of the Building or exercise any of the
rights granted by this lease in a way which causes nuisance
or damage
(b) any means of escape
(c) or discharge any deleterious matter into
(i) any pipe drain or other conduit serving the Premises
and (to the extent they lie within the Premises) to
keep them clear and functioning properly or
(ii) any Service Media
(d) or stop-up or darken the windows and other openings of the
Premises
nor to overload or cause undue strain to the Service Media or any
other part of the Building and in particular not to suspend any
undue weight from the ceilings or walls of the Premises and not to
exceed the following floor loadings:-
floor finishings: : 4 kN/m2 (80 lbs per sq. ft)
live load : IkN/m2 (20 lbs per sq. ft)
(e) any requisite notice erected on the Premises including any
erected by the Landlord in accordance with its powers under
this lease
PARKING/GOODS DELIVERY
(20) To ensure that all loading unloading deliveries and despatch of
goods is carried out only by using the service accesses and goods
lifts designated by the Landlord for the use of the Premises
PLANNING LAW AND COMPENSATION
(21) Without prejudice to clause 4(4) at all times during the Term to
comply with the provisions and requirements of Planning Law
relating to or affecting
(a) (i) the Premises
(ii) any operations works acts or things carried out
executed done or omitted on the Premises
(iii) the use of the Premises
(iv) the use by the Tenant of (and the exercise of any
other rights hereunder in respect of) any other parts
of the building
19
(b) Subject to the provisions of paragraph (c) of this
sub-clause as often as occasion requires during the Term at
the Tenant's expense to obtain and if appropriate renew all
planning permissions (and serve all notices) required under
Planning Law in respect of the Premises whether for the
carrying out by the Tenant of any operations or the
institution or continuance by the Tenant of any use of the
Premises or any part thereof or otherwise
(c) Not without the Landlord's consent (such consent not to be
unreasonably withheld or delayed) to apply for any planning
permission relating to the Premises (and not to apply for
any such planning permission relating to any other part of
the Building) but so that subject to compliance with
paragraph (e) of this sub-clause the Landlord's consent
shall not be unreasonably withheld or delayed to the making
of a planning application in respect of the Premises
relating to any operations or use or other thing (if any)
which assuming it to be implemented in accordance with
Planning Law would otherwise not be in breach of the
provisions of this lease
(d) If the Landlord so requires in connection with any relevant
proposal by the Tenant to apply for a determination under
section 191 or 192 Town and Country Planning Act 1990
(e) If the Landlord consents in principle to any application by
the Tenant (which it hereby agrees to consider and determine
with all due expedition) for planning permission to submit a
draft of the application to the Landlord for its approval
and to give effect to its reasonable requirements in respect
thereof and if and to the extent the Landlord so requires to
lodge the application with the relevant authority in the
joint names of the Landlord and the Tenant and in duplicate
(f) Not to implement any planning permission before the Landlord
has acknowledged that its terms are acceptable nor before
the Landlord has received any cash or other security which
it reasonably requires for compliance with any conditions
imposed by the planning permission
(g) If the Landlord at the Landlord's cost reasonably requires
or the Tenant desires to lodge and progress diligently an
appeal against any refusal of an application for planning
permission lodged in respect of the Premises by the Tenant
or by any person claiming under or through the Tenant
(whether or not lodged in its name alone) the Landlord
undertakes to co-operate fully with the Tenant in respect
of any such appeal unless such appeal would be likely to
have a material and adverse effect on the Landlord's
interests in the Building
(h) Unless the Landlord otherwise directs to complete before the
expiry of the Term all works on the Premises required as a
condition of any planning permission implemented by the
Tenant or by any person claiming under or through it
(i) If the Tenant receives or is entitled to receive
any statutory compensation under any Enactment in relation to
its interest in the Premises the Tenant shall on any
determination of its interest prior to the expiry of this
lease
20
by effluxion of time forthwith make such provision as is
just and equitable for the Landlord to receive its due
benefit from such compensation
INDEMNITY
(22) To indemnify the Landlord against all expenses proceedings costs
claims damages demands and any other liability or consequence
arising out or in respect of any breach of any of the Tenant's
obligations under this lease (including all costs reasonably
incurred by the Landlord in an attempt to mitigate any such
breach) or of any act omission or negligence of the Tenant or any
person at the Premises with the Tenant's authority
DEFECTIVE PREMISES
(23) On becoming aware of the same (or when the Tenant ought reasonably
to have become aware of the same) to give notice forthwith to the
Landlord of any defect in the Premises which might give rise to:-
(a) an obligation on the Landlord to do or refrain from doing
anything in relation to the Premises or
(b) any duty of care or the need to discharge such duty imposed
by the Defective Premises Act 1972 or otherwise
and at all times to display and maintain all notices which the
Landlord may from time to time reasonably require to be displayed
at the Premises in relation to their state of repair and condition
INSURANCE AND FIRE FIGHTING EQUIPMENT
(24) (a) Not to do or omit anything by which any insurance policy
(relevant extracts of which shall have been provided to the
Tenant) relating to the Building or any part of it becomes
void or voidable or by which the rate of premium on such
policy may be increased
(b) To comply with all proper requirements of the insurers and
to provide and maintain unobstructed appropriate operational
fire fighting equipment and fire notices on the Premises
(c) To notify the Landlord forthwith of:-
(i) any incidence of any Insured Risk on the Premises and
of any other event which ought reasonably to be
brought to the attention of insurers and of which the
Tenant ought reasonably to be aware
(ii) the insurable value of any fixture installed in the
Premises by the Tenant or any person claiming under or
through the Tenant
(d) That if at any time the Tenant or any person claiming under
or through it shall be entitled to the benefit of any
insurance of the Premises to cause all money paid under such
insurance to be applied in making good the loss or damage in
respect of which it was paid
21
(e) Subject to clause 5(2)(b) if the whole or any part of the
Building is damaged or destroyed by any of the Insured Risks
at any time during the Term and the insurance money under
any insurance policy effected by the Landlord is rendered
wholly or partially irrecoverable because of some act or
default of the Tenant or any person deriving title under or
through the Tenant or their respective servants agents or
invitees forthwith to pay the Landlord the whole amount of
the insurance money so irrecoverable
DANGEROUS AND CONTAMINATIVE MATERIALS
(25) Not to keep place store or use or permit or suffer to be kept
placed stored or used in or upon or about the Premises any
materials substance or other thing of a dangerous inflammable
combustible explosive corrosive or offensive nature or any
materials substance or other thing which may in any way cause
pollution injury or harm by percolation corrosion contamination
migration release or otherwise on beneath or in the vicinity of
the Premises
YIELD UP
(26) (a) At the expiry of the Term to remove all chattels and tenant's
fixtures and quietly to yield up the Premises reinstated in
accordance with the Reinstatement Specification and restored
and made good to the extent required under clause 4(12)(d)
and in the state of repair condition decorative order and
layout otherwise required by this lease and any licences or
consents issued in pursuance of it and to make good any
damage so caused in a proper and workmanlike manner
(b) The Tenant irrevocably authorises the Landlord to remove and
dispose of any chattels which may be left in the Premises
within 28 days after the Tenant has quit them (without being
obliged to obtain any consideration for the disposal) and
the Tenant irrevocably declares that any such chattels will
stand abandoned by it
REGULATIONS AND COVENANTS
(27) To comply with:-
(i) all reasonable regulations reasonably made by the
Landlord from time to time and notified to the Tenant
in writing for the good management of the Building
PROVIDED ALWAYS THAT no such regulations shall purport
to amend the terms expressed in this lease and if
there is any inconsistency between the terms of this
lease and the regulations the terms of this lease
shall prevail
(ii) all covenants stipulations and other matters affecting
the Premises and not to interfere with any rights
easements or other matters affecting the Premises
SECURITY AND ACCESS
(28) To use all reasonable endeavours to ensure that the Tenant's
visitors to the Premises observe such security regulations which
may apply to them
22
HEAD LEASE
(29) (a) To observe and perform the covenants and conditions on the
part of the lessee contained in the Head Lease so far as they
relate to the Premises except the covenant for the payment
of rent and except also so far as the obligations relating to
insurance fall to be observed and performed by the Landlord
pursuant to clause 5(2)
(b) Not to do or omit any act or thing which would or might
cause the Landlord to be in breach of the Head Lease
SERVICE CHARGE
(30) To pay the Service Charge (and VAT thereon) to the Management
Company at the times and in the manner provided for in clause 6
and schedule 5 without deduction or set off and to pay the Outside
Normal Business Hours Charge within 10 days of demand (either
annually or by monthly instalments) as the Management Company
shall reasonably determine PROVIDED THAT for the period from the
date hereof until the earlier of 25th June 1997 and the date on
which the Tenant commences full beneficial occupation of the
Premises following the works contemplated by the Agreement for
Initial Alterations the Service Charge payable by the Tenant in
any Accounting Period shall not exceed pounds sterling 32,211
inclusive of VAT and PROVIDED FURTHER that the Service Charge
payable in respect of the twelve month period from the earlier of
25th June 1997 and the date on which the Tenant commences full
beneficial occupation of the Premises following the works
contemplated by the Agreement for Initial Alterations shall be
pounds sterling 74,622.15 exclusive of VAT
5. LANDLORD'S COVENANTS
The Landlord covenants with the Tenant:
QUIET ENJOYMENT
(1) That if the Tenant observes and performs its covenants contained
in this lease the Tenant may peaceably hold and enjoy the Premises
without any lawful interruption by the Landlord or any person
rightfully claiming through under or in trust for it
INSURANCE
(2) (a) To keep the Building (except all tenants' plant and equipment
and trade fixtures) insured against the Insured Risks in the
full current replacement cost
(b) to use reasonable endeavours to procure that the interest of
the Tenant is noted on the insurance policy and to use
reasonable endeavours to further procure that the insurers
waive any rights of subrogation against the Tenant (or any
lawful subtenant occupier or invitee) and the Landlord will
notify the Tenant if it is unable so to procure and will
duly consider the representations of the Tenant regarding
alternative insurers who may be prepared to procure that the
insurers waive any subrogation rights and/or note the
interest of the Tenant and will also permit the Tenant to
make
23
representations to the insurers regarding the noting of the
Tenant's interest and/or waiver of rights of subrogation
(c) On request to supply the Tenant (but not more frequently
than once in any period of twelve months) with evidence of
such insurance
(d) If and whenever during the Term the Building (except as
aforesaid) is damaged or destroyed by an Insured Risk and to
the extent that payment of the insurance monies is not
refused because of any act neglect default or omission of
the Tenant or of any person deriving title under or through
the Tenant or their respective servants agents and invitees
subject to clause 5(2)(b) above the Landlord will with all
convenient speed take the necessary steps to obtain any
requisite planning permissions and consents and if they are
obtained to lay out the money received from the insurance of
the Building (except sums in respect of public liability and
employer's liability and loss of rent) towards replacing
(but not necessarily in facsimile reinstatement) the damaged
or destroyed parts (except as aforesaid) and in the case of
the Premises to the Reinstatement Specification as soon as
reasonably practicable (and the Landlord shall keep the
Tenant informed of progress of any such insurance claims and
the Landlord's proposals for compliance with this provision)
PROVIDED ALWAYS THAT the Tenant shall have no claim against
the Landlord under this clause 5(2)(c) in respect of the
manner of replacement of the interior of any Lettable Unit
other than the Premises or any alteration to the Common
Parts and PROVIDED FURTHER THAT the Landlord shall not be
liable to carry out the replacement if it is unable (having
used all reasonable endeavours) to obtain every planning
permission and consent necessary to execute the relevant
work in which event the Landlord shall be entitled to retain
all the insurance money received by it and if the Landlord
so retains the insurance money the Tenant shall be entitled
to determine this lease on not less than one month's prior
written notice
(e) In the event that the Premises have not been reinstated to
the Reinstatement Specification or essential means of access
thereto within the Building is not available in the
circumstances contemplated in sub clause 5(2)(d) by the
date five years and eleven months following the date of such
damage or destruction by an Insured Risk the Tenant may
determine this lease on not less than one month's prior
written notice such notice to be served (if at all) within
one month after expiry of such five years and eleven months
period
HEAD LEASE
(3) (a) To pay the rents reserved by the Head Lease and to perform so
far as the Tenant is not liable for such performance under
the terms of this lease but so far only as to preserve the
existence of this lease the covenants and conditions on the
part of the lessee contained in the Head Lease
(b) On the request and at the reasonable expense of the Tenant
to take all reasonable steps to enforce the covenants on
the part of the Superior Landlord contained in the Head
Lease
24
(c) To take all reasonable steps at the Tenant's reasonable
expense (to the extent possible under the Head Lease) to
obtain the consent of the Superior Landlord wherever the
Tenant makes application for any consent required under this
lease where the consent of both the Landlord and the
Superior Landlord is needed by virtue of this lease and the
Head Lease
ELECTRICITY PROVISION
(4) Subject to clause 7(3) to use all reasonable endeavours to provide
or procure the provision of electricity to the Premises to the
extent necessary to meet the requirements of the Tenant having
regard to the overall electricity services design standards for
the Building as a whole and to all relevant statutory provisions
from time to time regulating the supply and utilisation of
electricity and the terms and conditions relative thereto from
time to time imposed by the electricity provider chosen by the
Landlord
MANAGEMENT COMPANY ACCESS
(5) To allow the Management Company such rights over the Building as
it requires from time to time for the due and proper provision of
the Services
VAT INDEMNITY
(6) The provisions of schedule 8 shall apply in relation to VAT
liability on the rent first reserved and:-
(a) Whenever VAT is properly chargeable in respect of any supply
made hereunder by the Landlord to the Tenant the Landlord
shall no later than thirty days after the due date for
payment in respect of such supply issue a valid VAT invoice
or audit note (as the case may be to the Tenant)
(b) Subject to (6)(c) below all consideration payable by the
Landlord to the Tenant shall be exclusive of VAT which the
Landlord shall pay in addition on production of a valid VAT
invoice
(c) The capital sum referred to in clause 3 above shall be
inclusive of VAT save that if the Landlord is at any stage
able to recover such VAT the Landlord shall pay to the
Tenant a further amount equal to VAT on the capital sum
NAMING RIGHTS
(7) The Landlord shall only name the Building in accordance with its
postal address from time to time
NOTIFICATION OF NOTICES
(8) The Landlord will inform the Tenant as soon as reasonably
practicable but in any event within 5 working days of receipt of
the same of any notice served by the Superior Landlord alleging a
breach of the Head Lease which would threaten the existence of
this lease
6. PROVISION OF SERVICES
The Management Company covenants with the Tenant to use all reasonable
endeavours:-
25
(1) Well and substantially to repair and properly clean and decorate
the structure of the Building (including the structure of the
roofs foundations external and internal walls and columns and
structural slabs of the ceilings and floors) the external surfaces
of the Building (including the whole of the glazing within the
external walls of the Building) and the Common Parts and (where
consistent with an obligation to repair) to replace the same
(2) To keep the Service Media designed for common or general use and
the Landlord's Services Equipment in good and substantial repair
and in clean condition and at all times in good and safe working
order
(3) To keep the lifts in the Building clean and in good and
substantial repair and condition and at all times in good and safe
working order
(4) Provide heat and air conditioning and chilled water to the
Premises (subject to the Tenant paying Outside Normal Business
Hours Charge in relation to the provision of such services outside
Normal Business Hours) such heat being sufficient to maintain an
air temperature in the Premises measured at the main trunk
connections to the floor as follows:
Air Conditioning and Heating
Design Parameters:
External Conditions:
Summer 29 degrees C DB 20 degrees C WB
Winter -40 degrees DB 100% relative humidity
Internal Conditions Office Accommodation -
Summer 22 degrees C DB + 1 degree C
Winter 20 degrees C DB minimum
Humidity Office Accommodation -
Summer 50% +/- 10%
Winter 50% +/- 10%
(5) To ensure that the Common Parts are at all times kept clean tidy
and unobstructed
(6) Subject to clause 7(3) and clause 7(6) to provide or procure the
provision of electricity to the Premises and each and every part
thereof designed to receive the same to the extent necessary to
meet the reasonable requirements of the Tenant and other lawful
occupiers of the Premises
(7) To comply with the requirements of any statute (already or in the
future to be passed) or any government department local authority
other public or competent authority or court of competent
jurisdiction relating to the Building or any part for which any
tenant or occupier of the Building is not directly or exclusively
liable
26
(8) To ensure that at all times (meaning for the avoidance of doubt 24
hours a day during the Term) there are both such security officers
at and patrolling the Building as is reasonably appropriate for
premises of the same size and nature as the Building and that the
main reception to the Building is properly and adequately manned
(9) To provide or procure the provision of:-
(a) the Services during Normal Business Hours; and
(b) such of the Services outside Normal Business Hours as in the
Management Company's reasonable discretion are appropriate
to provide to a high class office building in the City of
London outside Normal Business Hours; and
(c) such of the Services outside Normal Business Hours as the
Tenant shall previously request (but subject to the Tenant
being responsible for the Outside Normal Business Hours
Charge)
having regard in all cases to and in accordance with the overall
design standards for the Building as a whole and subject to the
limitations contained in Clause 7(6)) in an efficient and
economic manner and in accordance with good estate management
provided that the Management Company shall be entitled to employ
such managing agents professional advisers contractors and other
persons as it shall from time to time reasonably think fit for the
purpose of the performance of the Services
PROVIDED THAT the Management Company shall not be liable for:-
(without prejudice to the provisions of clause 7(3)) any closure of any
of the Common Parts or interruption in the provision of the Services or
stoppage or severance affecting any of the Service Media or any
interruption to the supply of electricity to the Premises or the Common
Parts or temporary closure or diversion of any of the Common Parts or
Service Media by reason of necessary inspection repair maintenance or
replacement thereof or any part thereof or any plant machinery equipment
installations or apparatus used in connection therewith or damage
thereto or destruction thereof by any risk (whether or not an Insured
Risk) or by reason of electrical mechanical or other defect or breakdown
or frost or other inclement conditions or shortage of fuel materials
supplies or labour or whole or partial failure or stoppage of any mains
supply due to any circumstances beyond the control of the Management
Company PROVIDED ALWAYS that the Management Company shall use all
reasonable endeavours to minimise the adverse effects of any such
circumstances and to remedy any such interruption closure or diversion
as soon as reasonably practicable PROVIDED FURTHER that in the event of
the Landlord or the Management Company being unable to provide air
conditioning or electricity to the Premises in such circumstances the
Tenant shall be entitled to carry out (the Landlord and Management
Company affording the Tenant reasonable access to do so) all necessary
remedial works to such electricity or air conditioning PROVIDED THAT:
(a) the Tenant shall carry Out such works in a good and workmanlike
manner and make good all damage caused causing as little
inconvenience to the Landlord Management Company and other tenants
as reasonably practicable
27
(b) the Landlord or the Management Company shall be responsible for
the costs of the Tenant in carrying out such remedial works when
such works are being carried out as a consequence of any breach of
the Landlord's or Management Company's covenants hereunder
7. PROVIDED ALWAYS AND IT IS HEREBY AGREED AND DECLARED THAT:-
FORFEITURE AND RE-ENTRY
(1) Without prejudice to any other remedies and powers contained in
this lease or otherwise available to the Landlord if
(a) the whole or part of the rents shall be unpaid for
twenty-one days after becoming payable (whether or not
formally demanded) or
(b) any of the Tenant's covenants in this lease are not
performed or observed in the manner and at the times herein
specified or
(c) the guarantee granted by the Guarantor or any other
guarantor of the Tenant's obligations is or becomes
unenforceable (in whole or in part) for any reason
whatsoever and no suitable alternative security is provided
to the Landlord within a period of one month or
if the Tenant (or if more than one person any one of them):-
(d) being a company enters into liquidation whether voluntarily
(except for reconstruction or amalgamation of a solvent
company) or compulsorily or has a provisional liquidator or
a receiver (including an administrative receiver) appointed
or its directors pass a resolution to petition for an
administration order or one or more of them swears an
affidavit in support of such a petition or is the subject of
an administration order or a petition for one or of a
voluntary arrangement or a proposal for one under Part I
Insolvency Act 1986
(e) being a company incorporated outside the United Kingdom is
the subject of any proceedings or event analogous to those
referred to in clause 7(1)(d) in the country of its
incorporation
(f) being an individual is the subject of a bankruptcy petition
or bankruptcy order or of any application or order or
appointment under section 253 or section 273 or section 286
Insolvency Act 1986 or otherwise becomes bankrupt or
insolvent or dies
the Landlord may at any time thereafter (and notwithstanding the
waiver of any previous right of re-entry) re-enter the Premises
without prejudice to the Tenant's right to relief against
forfeiture whereupon this lease shall absolutely determine but
without prejudice to either partys right of action against the
other in respect of any antecedent breach of the covenants in this
lease
LETTING SCHEME USE AND EASEMENTS
(2) No letting or building scheme exists or shall be created in
relation to the Building and (subject only to those easements
expressly granted by this lease) neither the Tenant nor the
Premises shall be entitled to any easement or quasi-easement
28
whatsoever and nothing herein contained or implied shall give the
Tenant the benefit of or the right to enforce or to have enforced
or to prevent the release or modification of any right easement
covenant condition or stipulation enjoyed or entered into by any
tenant of the Landlord in respect of property not demised by this
lease or prevent or restrict the development or use of the
remainder of the Building or any other land
COMMON PARTS AND SERVICE MEDIA
(3) Subject always to the rights of the local authority the relevant
supply authorities and any other competent authority the Common
Parts and the Service Media are at all times subject to the
exclusive control and management of the Landlord who may from time
to time (if it shall be necessary or reasonable to do so for the
benefit of the Building or otherwise in keeping with the
principles of good estate management) alter divert substitute stop
up or remove any of them (leaving available for use by the Tenant
reasonable and sufficient means of access to and egress from and
servicing for the Premises)
SERVICE OF NOTICES
(4) (a) In addition to any other mode of service any notices to be
served under this lease shall be validly served if served in
accordance with section 196 Law of Property Act 1925 as
amended by the Recorded Delivery Service Act 1962 or (in the
case of any notice to be served on the Tenant) by sending it
to the Tenant at the Premises PROVIDED THAT whilst the Tenant
hereunder is Donaldson Lufkin & Jenrette International
Limited such notice shall also be served on the offices for
the time being of SJ Berwin & Co (attention: Edward Page) or
such other firm of solicitors notified in writing to the
Landlord and 277 Park Avenue New York New York 10172
(b) If the Tenant or any guarantor comprises more than one
person it shall be sufficient for all purposes if notice is
served on one of them but a notice duly served on the Tenant
will not need to be served on any guarantor
RENT CESSER
(5) If and whenever during the Term:-
(a) the Premises (other than the Tenant's plant and equipment
and tenant's fixtures) or the means of access to the
Premises within the Building are damaged or destroyed by any
of the Insured Risks so that the Premises are incapable of
beneficial occupation and use and
(b) subject to clause 5(2)(b) the insurance of the Building or
the payment of any insurance money has not been vitiated by
the act neglect default or omission of the Tenant or of any
person deriving title under or through the Tenant their
respective servants agents and invitees
the rent first reserved by this lease and the Service Charge or a
fair proportion of them according to the nature and extent of the
damage sustained shall be suspended and cease to be payable from
the date of destruction or damage until whichever is the earlier
of the date on which the Premises are reinstated to the
Reinstatement Specification and if applicable the essential means
of access within
29
the Building are available and the date of expiry of the period
for which insurance of loss of rent is effected and any dispute
about such suspension shall be referred to the award of a single
arbitrator to be appointed in default of agreement on the
application of the Landlord or the Tenant to the President for the
time being of The Royal Institution of Chartered Surveyors in
accordance with the Arbitration Acts 1950 and 1979
LANDLORD'S LIABILITY
(6) The Landlord shall not be liable for (without prejudice to the
provisions of clause 7(3)) any closure of any of the Common Parts
or stoppage or severance affecting any of the Service Media or any
interruption to the supply of electricity to the Premises or
temporary closure or diversion of any of the Common Parts or
Service Media by reason of necessary inspection repair maintenance
or replacement thereof or any part thereof or any plant machinery
equipment installations or apparatus used in connection therewith
or damage thereto or destruction thereof by any risk (whether or
not an Insured Risk) or by reason of electrical mechanical or
other defect or breakdown or frost or other inclement conditions
or shortage of fuel materials supplies or labour or whole or
partial failure or stoppage of any mains supply due to any
circumstances beyond the control of the Landlord PROVIDED ALWAYS
that the Landlord shall use all reasonable endeavours to minimise
the adverse effects of any such circumstances and to remedy any
such interruption closure or diversion as soon as reasonably
practicable PROVIDED FURTHER that in the event of the Landlord or
the Management Company being unable to provide air conditioning or
electricity to the Premises in such circumstances the Tenant shall
be entitled to carry out (the Landlord and Management Company
affording the Tenant reasonable access to do so) all necessary
remedial works to such electricity or air conditioning PROVIDED
THAT:
(a) the Tenant shall carry out such works in a good and workmanlike
manner and make good all damage caused causing as little
inconvenience to the Landlord Management Company and other tenants
as reasonably practicable)
(b) the Landlord or the Management Company shall be responsible for
the costs of the Tenant in carrying out such remedial works when
such works are being carried out as a consequence of any breach of
the Landlords or Management Company's covenants hereunder
ARBITRATION FEES
(7) The fees of any arbitrator incurred in any arbitration proceedings
arising out of this lease may be paid to the arbitrator by the
Landlord or by the Tenant notwithstanding any direction or prior
agreement as to liability for payment and any sums so paid for
which the party who pays them initially is not ultimately liable
shall be repayable on demand by the party who is liable for them
RENT REVIEW MEMORANDUM
(8) Forthwith after every agreement or determination of any increase
in the amount of the rent reserved and made payable by virtue of
schedule 4 a memorandum recording the increase shall be attached
to this lease and to the counterpart and
30
such memorandum shall be signed by or on behalf of the Landlord
and the Tenant respectively
NO WARRANTY AS TO USE
(9) Nothing contained in this lease shall constitute or be deemed to
constitute a warranty by the Landlord that the Premises are
authorised under Planning Law to be used or are otherwise fit for
any specific purpose
DISPUTES
(10) (a) Any dispute between the Tenant and any other tenant or
occupier of any part of the Building relating to any easement
or right affecting the Building or any part of it shall
(unless the Landlord shall by notice to the parties concerned
renounce its power to determine it) be referred to the
Landlord whose decision acting reasonably (acting in the
capacity of an expert) shall be binding upon the parties to
the dispute but the Landlord shall give written reasons for
his decision
(b) Where any issue (other than one relating to a rent review)
arising out of or under or relating to the Head Lease which
also affects or relates to the provisions of this lease is
to be determined as provided in the Head Lease the
determination of such issue pursuant to the provisions of
the Head Lease shall be binding on the Tenant as well as the
Landlord for the purposes both of the Head Lease and this
lease
COMPENSATION
(11) Except where any Enactment prohibits the right to compensation
being reduced or excluded by agreement, neither the Tenant nor any
occupier of the Premises shall be entitled on quitting them to
claim from the Landlord any compensation under the Landlord and
Tenant Act 1954
RATEABLE VALUE APPEALS
(12) (a) If the Landlord or the Tenant intends to make a proposal to
alter the entry for the Premises in the local non-domestic
rating list it shall notify the other party of its intention
and shall incorporate in the proposal such proper and
reasonable representations as may be made by or on behalf of
that party
(b) The Tenant shall not agree the level of rates liability
attributable to the Premises following the date hereof
without the Landlord's consent (such consent not to be
unreasonably withheld or delayed) PROVIDED that for the
avoidance of doubt the Landlord shall not be entitled to
refuse its consent to any level of rates which the Tenant
has negotiated with the appropriate rating authority which
is lower than any level of rates negotiated by or on behalf
of the Landlord in respect of the Building on a pro rata
basis
NO WARRANTY AS TO SECURITY
(13) Nothing contained in this lease (and no exercise of any of the
Landlord's powers under this lease) shall constitute or be deemed
to constitute a warranty by the
31
Landlord that the Premises shall be kept secure or that any
security service to the Common Parts shall be effective
JURISDICTION
(14) This lease shall be governed by and construed in all respects in
accordance with the law of England and for the benefit of the
Landlord the English courts shall have exclusive jurisdiction in
relation to disputes arising under or connected with this lease
and the Tenant agrees that any process may be served on it by
leaving a copy of the relevant document at the Premises provided
however that the Landlord shall retain the right at its sole
election to sue the Tenant elsewhere including in the courts of
the Tenant's domicile
OVERRIDING LEASE
(15) If at any time during the Term the Landlord shall grant a tenancy
of the reversion immediately expectant on the determination of
this lease whether pursuant to Section 19 Landlord and Tenant
(Covenants) Act 1995 or otherwise any covenant on the part of the
Tenant to obtain the consent of the Landlord under this lease to
any dealing shall be deemed to include a further covenant also to
obtain the consent of the lessor under such tenancy to such
dealing
8. LANDLORD'S GUARANTOR
(1) The Landlord's Guarantor at the request of the Landlord and in
consideration of the Tenant agreeing to take this lease covenants
and agrees with the Tenant that all of the Landlord's obligations
contained in this lease will be performed and observed in the
manner and at the times herein specified and that if there is
default in performing and observing any of the Landlord's
obligations (notwithstanding any time or indulgence granted by the
Tenant to the Landlord or compromise, neglect or forbearance on
the part of the Tenant in enforcing the observance of the
Landlord's obligations in this lease) the Landlord's Guarantor
will observe and perform (or procure the performance and
observance of) the obligations in respect of which the Landlord
shall be in default
(2) The Landlord's Guarantor at the request of the Management Company
and in consideration of the Tenant agreeing to pay the Service
Charge covenants and agrees with the Tenant that all of the
Management Company's obligations contained in this lease will be
performed and observed in the manner and at the times herein
specified and that if there is default in performing and observing
any of the Management Company's obligations (notwithstanding any
time or indulgence granted by the Tenant to the Management Company
or compromise, neglect or forbearance on the part of the Tenant in
enforcing the observance of the Management Company's obligations
in this lease) the Landlord's Guarantor will observe and perform
(or procure the performance and observance of) the obligations in
respect of which the Management Company shall be in default
9. TENANT'S OPTION TO DETERMINE
(1) The Tenant may (subject to compliance with the provisions of this
clause) determine this lease as at 24th October 2008
(2) If the Tenant wishes so to determine the Tenant shall give to the
Landlord the Termination Notice such notice to expire on
24th October 2008
32
(3) If the Tenant duly serves the Termination Notice it shall procure
that vacant possession of the Premises will be available on
24th October 2008 free of occupation by and of any estate or
interest rested in the Tenant or any third party and this lease
shall not determine as a result of any notice served by the Tenant
if the Tenant is in material breach of any of its covenant to pay
the rents and Interim Sum contained in this lease (including those
contained in this sub-clause) as at 24th October 2008 except to the
extent if at all the Landlord in its absolute discretion waives
compliance with any of them
10. GUARANTEE AND GUARANTOR'S INDEMNITY
The Guarantor at the request of the Tenant and in consideration of the
grant of this lease covenants and agrees with the Landlord and during
the Term and any period of holding over continuation or extension
thereof whether by an Enactment common law or otherwise (subject to
clause 4(15)):-
(1) The rents reserved by this lease (whether or not ascertained as to
amount) will be duly paid and that all the Tenant's obligations
contained in it will be performed and observed in the manner and
at the times herein specified and that if there is any default
in paying the rents or in performing and observing the Tenant's
obligations (notwithstanding any time or indulgence granted by the
Landlord to the Tenant or compromise neglect or forbearance on the
part of the Landlord in enforcing the observance and performance
of the Tenant's obligations in this lease or any refusal by the
Landlord to accept rents tendered by or on behalf of the Tenant)
the Guarantor will observe and perform the obligations in respect
of which the Tenant shall be in default and will on demand and on
a full indemnity basis pay to the Landlord an amount equivalent to
the rents or other amounts not paid and/or any loss damage costs
charges expenses or any other liability incurred or suffered by
the Landlord as a result of the default (and in the event of
non-payment shall pay interest at the Interest Rate from the date
of demand to the Guarantor until the date of payment) and will
otherwise indemnify and hold harmless the Landlord against all
actions claims costs damages demands expenses losses and
proceedings arising from or incurred by the Landlord as a result
of such non-performance or non-observance
(2) If any liquidator or other person having power to do so disclaims
this lease or if it shall be forfeited or if the Tenant ceases to
exist and if the Landlord by written notice served within three
months after the date of disclaimer or forfeiture or the Landlord
having actual knowledge of the cesser of existence of the Tenant
(each a "Trigger Event") requires the Guarantor to accept a lease
of the Premises for a term computed from the date of the Trigger
Event to the date on which the Term would have expired by
effluxion of time and at the same rents and subject to the same
covenants stipulations conditions and provisions (except that the
Guarantor shall not be required to procure that any other person
is made party to that lease as guarantor) as are reserved by and
contained in this lease immediately before the Trigger Event and
with coincidental Review Dates (the said new lease and the rights
and liabilities thereunder to take effect as from the date of such
Trigger Event) the Guarantor shall forthwith accept such lease
accordingly and execute and deliver to the Landlord a counterpart
of it and indemnify the Landlord upon demand against the costs
incurred on the grant of the new lease
33
(3) The liability of the Guarantor hereunder shall not be released
reduced affected or prejudiced by reason of:-
(a) any variation or waiver of or addition to the terms of this
lease or any of them agreed between the Landlord and the
Tenant or
(b) the surrender by the Tenant of part of the Premises (in
which event the liability of the Guarantor shall continue in
relation to the Tenant's obligations in respect of the part
of the Premises not so surrendered) or
(c) any legal limitation immunity disability incapacity
occurrence of insolvency or the winding-up of the Tenant or
(d) (without limitation to the foregoing) of any other act or
thing act or thing by which (but for this provision) the
Guarantor would have been discharged or released (in each
case in whole or in part) from liability under this
guarantee and indemnity
or any combination of any two or more of such matters
(4) If a Trigger Event occurs and for any reason the Landlord does not
require the Guarantor to accept a new lease of the Premises in
accordance with clause 8(2) the Guarantor shall pay to the
Landlord on demand (in addition to any other loss damage costs
charges expenses or other liability which the Guarantor may be
required to make good hereunder and without prejudice to any other
rights of the Landlord) an amount equal to the rents which would
have been payable hereunder but for such Trigger Event (so far as
such rents do not otherwise continue to be payable) for the period
commencing on the date of such Trigger Event and ending on
whichever is the earlier of the date one year after the date of
such Trigger Event and the date (if any) upon which rent is first
payable in respect of the whole of the Premises on a reletting
thereof
(5) Without prejudice to the rights of the Landlord against the Tenant
the Guarantor shall be a principal obligor in respect of its
obligations under this clause and not merely a surety and
accordingly the Guarantor shall not be discharged nor shall its
liability hereunder be affected by any act or thing or means
whatsoever by which its said liability would not have been
discharged if it had been a primary debtor
(6) The Guarantor shall pay all reasonable charges (including legal
and other costs on a full indemnity basis) incurred by the
Landlord in relation to the Landlord's enforcement of this
guarantee and indemnity against the Guarantor or for enforcing
payment by the Guarantor of amounts indemnified by it hereunder
(7) The Landlord may at its option enforce the terms of this guarantee
and indemnity against the Guarantor without having first enforced
the covenants and terms of this lease against the Tenant and also
without first having recourse to any other rights or security
which the Landlord may have obtained in relation to this lease
(8) The Guarantor shall not be entitled to participate in any security
held by the Landlord in respect of the obligation of the Tenant
under this lease or to any right of subrogation in respect of any
such security until all the obligations owed to the Landlord by the
Tenant and the Guarantor hereunder have been fully and
unconditionally fulfilled and discharged
34
(9) The Guarantor shall not claim in any liquidation bankruptcy
composition or scheme of arrangement in respect of the Tenant in
competition with the Landlord and if and to the extent that it
receives the same shall remit to (and until remission shall hold
in trust for) the Landlord all and any monies received from any
liquidator trustee receiver or out of any composition or
arrangement or from any supervisor thereof until all the
obligations of the Tenant and the Guarantor hereunder owed to the
Landlord have been fully and unconditionally fulfilled and
discharged
(10) This guarantee and indemnity shall enure for the benefit of the
Landlord's successors in title under this lease without the
necessity for any assignment thereof
(11) While Donaldson, Lufkin & Jenrette International Limited remains
the Tenant this guarantee and indemnity shall only apply if and
for so long as the total shareholders funds and reserves of
Donaldson, Lufkin & Jenrette International Limited are or fall
below the value of Fifty million pounds (pounds sterling
50,000,000) AND Donaldson, Lufkin & Jenrette International Limited
and Donaldson, Lufkin & Jenrette Inc. shall notify the Landlord
at the beginning of each period in which this guarantee and
indemnity applies and again when it ceases to apply AND for the
avoidance of doubt this guarantee (subject to compliance by the
Tenant with clause 4(15)) shall automatically cease on any lawful
assignment of this lease (but without prejudice to either party's
rights against the other in respect of any antecedent breaches of
this lease) unless in the circumstances contemplated by clause
4(15)(g)(ii)(b) it is reasonable for Donaldson Lufkin & Jenrette
Inc. to remain the guarantor hereunder of the liabilities of
Donaldson, Lufkin & Jenrette International Limited PROVIDED
FURTHER that Donaldson, Lufkin & Jenrette Inc shall in such
circumstances automatically be released on a second assignment of
this lease
11. STAMP DUTY CERTIFICATE
It is hereby certified that there is no agreement for lease to which
this lease gives effect
IN WITNESS whereof this Deed has been executed by the parties hereto and is
intended to be and is hereby delivered on the date first above written
35
SCHEDULE 1
(THE PREMISES)
ALL THOSE office premises situate on the eighteenth floor and being part of
the Building which are shown on the Plans and thereon verged red for
identification purposes only ALL which premises include:-
(a) the plaster linings and other interior coverings and facing materials of
all walls and of any columns within or bounding the said premises
(b) the screed the raised floor the fixed and unfixed floor coverings and
all materials lying between the upper surface of the structural floor
slab and the raised floor surface
(c) the ceilings including all materials forming part of them lying and the
void space (if any) above such ceilings but below the lower surface of
the structural ceiling slab
(d) all non-load bearing walls lying within the said premises
(e) all plant and other apparatus and conducting media which are designed to
serve the said premises exclusively including any which the Landlord may
permit under clause 4(14) and whose operation does not have any impact
on the central building systems
(f) the following items supplied and fitted by the Landlord:-
(i) venetian horizontal perforated blinds on the inside of the
external windows of the Premises
(ii) electricity check meter
but exclude:-
(i) all Service Media and Landlord's Services Equipment and
(ii) the load bearing structure of the Building including the load bearing
structure of the roofs foundations external and internal walls and
columns and the structural slabs of the ceilings and floors and
(iii) the external surfaces of the Building and the whole of the window
glazing and window frames and other fenestration units constructed in
the external walls and in the other boundaries of the said premises
SCHEDULE 2
(EASEMENTS AND RIGHTS GRANTED)
1. The right in connection with the Permitted Use subject to the provisions
of clause 7(3) and subject to compliance with all reasonable rules and
regulations in connection with the exercise of such right as may be
prescribed from time to time by the Landlord:-
(1) for the Tenant its employees servants and duly authorised agents
invitees and visitors for the purpose only of ingress and egress
to and from the Premises to use the Common Parts and to use all
means of escape but only when needed in an emergency and
(2) to use the Service Media
36
2. The right of support shelter and protection for the Premises from any
adjoining or neighbouring parts of the Building as enjoyed by the
Premises at the date of this lease
3. The right to have displayed the name or trading style of the Tenant and
any authorised sub-tenants or permitted occupiers (subject to a maximum
of four names at any particular time) on the signboard in the entrance
lobby of the Building provided by the Landlord pursuant to paragraph 14
of Part I of schedule 6 and the right to install a sign displaying the
name of the Tenant at the entrance to the Premises the precise location
size and style of such sign to be subject to the approval of the
Landlord (such approval not to be unreasonably withheld or delayed)
4. The right to install a supplementary air conditioning system and UPS
within the 14th floor plant area in the Building in a manner and in a
location to be approved by the Landlord such approval not to be
unreasonably withheld or delayed (in accordance with the provisions of
clause 4(12)) and a right of access to such 14th floor plant area at all
reasonable times on reasonable prior notice (save in the case of
emergency) for repair and maintenance and PROVIDED that on determination
of the Term the Tenant shall remove any such installation and reinstate
the plant room area to the reasonable satisfaction of the Landlord
(making good all damage caused in such removal)
5. The right to use and to have reasonable access for repair and
maintenance (on reasonable prior written notice to the Landlord) those
works or installations within or on the Building (but outside the
Premises) for which consent has been given pursuant to the Agreement for
Initial Alterations
6. The exclusive right to use the lavatories on the same floor as the
Premises subject to free access for the tenants of the seventeenth and
nineteenth floors unless such tenants have agreed to forego the right of
access subject to the Tenant being responsible for all elements of
Service Cost relating to such toilets should any other tenant of
accommodation in the Building object to meeting any proportion of
Service Cost in relation to such facilities (on the basis of such
exclusive use)
SCHEDULE 3
(EXCEPTIONS AND RESERVATIONS)
1. The right to build alter or extend (whether vertically or laterally) any
building notwithstanding that the access of light and air or either of
them to the Premises and the lights windows and openings thereof may be
affected
2. The right at reasonable times on reasonable prior written notice (except
in an emergency where no notice need be given) to enter upon the
Premises as often as may be necessary for the purpose of complying with
the covenants of the Head Lease for all the purposes for which the
Tenant covenants in this lease to permit entry and for all purposes in
connection with the carrying out of the Services and for the purposes of
complying with any statutory requirements
3. The right to use and to construct inspect maintain repair divert and
otherwise alter stop up and relay and to make connections to any Service
Media in on or under the Premises at any time during the Term for the
benefit of any other part of the Building or any adjacent or
neighbouring land
37
4. The right to erect and maintain scaffolding on or against any part of
the Building so long as reasonable and sufficient means of access to and
egress from and servicing the Premises are maintained
5. All rights of light air and other easements and rights (but without
prejudice to those expressly granted by this lease) enjoyed by the
Premises from or over any other part or parts of the Building or any
adjacent or neighbouring land
6. The right of support protection and shelter for the benefit of other
parts of the Building from the Premises
7. The right for one or more members of any security staff employed by the
Landlord or its agents at any time or times on reasonable prior notice
(save in the case of emergency where no notice is required) to enter the
Premises if it shall be considered necessary or desirable so to do in
connection with the security of the Building
8. The right for the tenant or occupier of any other part of the Building
authorised by the Landlord having first given reasonable written notice
to the Tenant at reasonable times in the daytime and at any time and
without notice in case of emergency to enter the Premises for the
purpose of repairing that other part of the Building making good any
damage so caused to the reasonable satisfaction of the Tenant
9. The rights reserved to the Superior Landlord (by covenant or by express
reservation) in the Head Lease
PROVIDED ALWAYS THAT if the Landlord or its employees or the persons
authorised by the Landlord exercises any of the rights by carrying out work on
the Premises it shall cause as little inconvenience as possible and as soon as
reasonably practicable make good any damage caused to them unless the right
has been exercised because of some breach by the Tenant or by any person
claiming through it
SCHEDULE 4
(THE FIRST RESERVED RENT AND THE REVIEW THEREOF)
1. In this schedule the following expressions have the respective specified
meanings:-
(1) "Current Rent" means the amount of the yearly rent first reserved
by this lease payable immediately before the relevant Review Date
(2) "Review Rent" means the yearly market rent which might reasonably
be expected to be payable following the expiry of any period at
the beginning of the term which might be negotiated in the open
market for the purposes of fitting out during which no rent or a
concessionary rent is payable or following the payment of any
capital sum or fitting out contribution which might be negotiated
in the open market for the purposes of fitting out (and on the
assumption that the lessee has had the benefit of such rent free
or concessionary rent period or capital sum or fitting out
contribution and has used the same fully to fit out the Premises
for the Permitted Use to the lessee's particular requirements) if
the Premises had been let in the open market by a willing lessor
to a willing lessee with vacant possession on the relevant Review
Date without fine or premium for a term often years computed from
the relevant Review Date taking into account the lessee's right at
the expiration of the term to be granted a new tenancy under Part
II Landlord and Tenant Act 1954 and otherwise upon the provisions
(save as to the
38
amount of the rent first reserved by this lease but including the
provisions for rent review at five-yearly intervals) contained in
this lease and on the assumption if not a fact that the said
provisions have been fully complied with and on the further
assumptions that:-
(a) the Permitted Use and the Premises comply with Planning Law
and every other Enactment free from any onerous condition
restriction and limitation and that the lessee may lawfully
implement and carry on the Permitted Use
(b) no work has been carried out to the Premises which has
diminished their rental value
(c) in case the Building or any part of it has been destroyed or
damaged it has been fully restored
(d) the Premises have been fitted out to no less standard than
that set out in the Reinstatement Specification
but disregarding any effect on rent of:-
(i) the fact that the Tenant or any underlessee or other
permitted occupier or their respective predecessors in title
has been or is in occupation of the Premises
(ii) any goodwill attached to the Premises by the carrying on in
them of the business of the Tenant or any underlessee or
their respective predecessors in title or other permitted
occupier
(iii) (without prejudice to paragraphs 1(2)(b) and 1(2)(c) of this
schedule) any works carried out to the Premises during the
Term by the Tenant or any permitted underlessee in either
case at its own expense in pursuance of a licence granted by
the Landlord where required and otherwise than in pursuance
of any obligation to the Landlord
(iv) the works carried out to the Premises by the Tenant or
carried out by the Landlord at the expense of the Tenant
pursuant to the Agreement for Initial Alterations
(3) "Review Surveyor" means an independent chartered surveyor
appointed pursuant to paragraph 3(1) of this schedule and if to be
nominated by or on behalf of the President for the time being of
the Royal Institution of Chartered Surveyors the said President to
be requested to nominate an independent chartered surveyor having
not less than ten years practice in the City of London next before
the date of his appointment and recent substantial experience in
the letting and valuation of office premises of a similar
character and quality to those of the Premises and who is a
partner or director of a leading firm or company of surveyors
having specialist market and valuation knowledge of such premises
2. The yearly rent first reserved and payable from each Review Date until
the next following Review Date or (in the case of the period commencing
on the last Review Date during the Term) until the expiry of the Term
shall be the higher of:-
39
(1) the Current Rent (ignoring for this purpose any rent cesser
pursuant to clause 7(5)) and
(2) the Review Rent
3. If the Landlord and the Tenant shall not have agreed the Review Rent by
the date three months before the relevant Review Date it shall (without
prejudice to the ability of the Landlord and the Tenant to agree it at
any time) be assessed as follows:-
(1) the Review Surveyor shall (in the case of agreement about his
appointment) be forthwith appointed by the Landlord or the Tenant
to assess the Review Rent or (in the absence of agreement at any
time about his appointment) be nominated to assess the Review Rent
by or on behalf of the President for the time being of The Royal
Institution of Chartered Surveyors on the application of the
Landlord or the Tenant
(2) Unless the Landlord and the Tenant agree that the Review Surveyor
shall act as an expert (which after the appointment has been made
they may not do save with the consent also of the Review Surveyor)
he shall act as an arbitrator and the arbitration shall be
conducted in accordance with the Arbitration Acts 1950 and 1979
(3) If the Review Surveyor is appointed as an expert he shall be
required to give notice to the Landlord and the Tenant inviting
each of them to submit to him within such time limits as he shall
stipulate a proposal for the Review Rent supported (if so desired
by the Landlord or the Tenant) by any or all of:-
(i) a statement of reasons
(ii) a professional rental valuation and (separately and later)
(iii) submissions in respect of each other's statement of reasons
and valuation
but he shall not be bound thereby and shall make the determination
in accordance with his own judgment (including any determination
concerning any party's liability for the costs of the reference to
him) save in respect of points of law
(4) If the Review Surveyor whether appointed as arbitrator or expert
refuses to act or is or becomes incapable of acting or dies the
Landlord or the Tenant may apply to the President for the further
appointment of another Review Surveyor
4 If the Review Rent has not been agreed or assessed by the relevant
Review Date the Tenant shall:-
(1) continue to pay the Current Rent on account and
(2) pay the Landlord within seven days after the agreement or
assessment of the Review Rent the amount (if any) by which the
Review Rent for the period commencing on the relevant Review Date
and ending on the quarter day following the date of payment
exceeds the Current Rent paid on account for the same period plus
interest at three per cent below the Interest Rate for each
installment of rent due on and after the relevant Review Date on
the difference between what would have been paid on that rent day
had the Review Rent been
40
fixed and the amount paid on account (the interest being payable
from the date on which the installment was due up to the date of
payment of the shortfall)
5. If any Enactment restricts the right to review rent or to recover an
increase in rent otherwise payable then when the restriction is released
the Landlord may at any time within six months after the date of release
give to the Tenant not less than one month's notice requiring an
additional rent review as at the next following quarter day which shall
for the purposes of this lease be a Review Date
SCHEDULE 5
(THE SERVICE CHARGE)
I. In this schedule:
"ACCOUNTING PERIOD" means the period from and including 1st January to
and including 31 St December in any year or such other period of twelve
months as the Management Company shall reasonably determine from time to
time
"EXPERT" means a chartered surveyor experienced in the administration
and apportionment of service charges for buildings similar to the
Building as agreed upon by the Management Company and the Tenant or on
failure to agree appointed at the request of either party by the
President Provided that where an Expert has previously been agreed or
appointed in relation to any matter in connection with the Service Cost
or the allocation of the Service Cost between the tenants of the
Building (whether or not pursuant to the terms of this Underlease) the
Management Company or the Tenant shall be entitled if reasonable to
require that the same Expert be appointed
"INTERIM SUM" means a fair and reasonable yearly sum assessed by the
Management Company acting reasonably on account of the Service Charge
for each Accounting Period being a fair and reasonable estimate of the
Service Charge payable by the Tenant in respect of that Accounting
Period
"RESERVE" means the total of the amounts received by the Management
Company in respect of the matters referred to in paragraph 2(B) of this
schedule
"SERVICE CHARGE" means the proportion or proportions of the Service Cost
attributable to the Premises determined in accordance with the
provisions of this schedule payable from the date hereof
"SERVICE CHARGE CERTIFICATE" means a certificate showing the Service
Cost and Service Charge for each Accounting Period served pursuant to
paragraph S of this schedule and prepared by the Management Company's
surveyor or auditor
"SERVICE COST" means the total sum calculated in accordance with
paragraph 2 of this schedule
2. The Service Cost shall be the total of:-
(A) the reasonable cost properly incurred by the Management Company in
any Accounting Period in carrying out or procuring the carrying
out of the Services and providing each item of the Services
including (without prejudice to the generality of the foregoing)
the costs and expenses set out in Part 11 of schedule 6 (insofar
as the same are reasonable and properly incurred) and any other
41
reasonable costs and expenses properly incurred by the Management
Company or with the Management Company's authority in connection
with the Services but excluding for the avoidance of doubt
(i) any costs attributable to the provision of any of the
Services outside Normal Business Hours at the specific
request of the Tenant (which shall be charged direct to the
Tenant) or of any other tenant or tenants of the Building
and
(ii) any Value Added Tax which the Management Company may incur
of and incidental to the provision of the Services and which
is recoverable as input tax by the Management Company
(iii) any cost or expense incurred in making good any damage
caused by any of the insured Risks
(B) an amount (to be revised annually by the Management Company at its
reasonable discretion) to be charged in any Accounting Period as a
contribution to the establishment and maintenance of a reserve
towards the estimated cost to the Management Company of the
provision of the Services such amount to be ascertained on the
assumption (inter alia) that the cost of replacement of items of
plant machinery equipment and other capital items is calculated on
such life expectancy of the said items as the Management Company
may from time to time reasonably determine to the intent that a
fund be accumulated sufficient to cover the cost of replacement of
the said items by the end of their anticipated life
PROVIDED THAT nothing herein contained shall oblige the Management
Company to maintain the Reserve or a reserve sufficient to cover the
whole of the cost of replacement of any plant machinery equipment or
other capital items and provided further that any expenditure on any
items in respect of which any sums shall have been included in the
Reserve during an Accounting Year shall at the Management Company's
reasonable discretion as to the amount thereof if any be met out of the
Reserve AND PROVIDED THAT in respect of any costs or expenses not
incurred exclusively in connection with the provision or carrying out of
the Services a fair proportion only of such costs and expenses shall be
included in the Service Cost
3. (A) The Service Charge payable by the Tenant for any Accounting Period
shall be a fair proportion of the Service Cost attributable to the
Premises from time to time as properly determined by the
Management Company (and so in proportion for any Accounting Period
not falling wholly within the Term the Service Cost in any such
case being deemed to accrue on a day to day basis for the purpose
of apportionment)
(B) If at any time and from time to time during the Term the method or
basis of calculating or ascertaining the cost of any item of the
Services shall alter or the basis of calculating or ascertaining
the Service Cost in relation to any item of the Services shall
change and as a result it is reasonable that there be an
alteration or variation of the calculation of the Service Charge
in order to achieve a fairer and better apportionment of the
Service Cost amongst the tenants of the Building then and in every
such case the Management Company shall vary and amend the Service
Charge and make appropriate adjustments thereto provided always
that in the event of any dispute between the Management Company
and the Tenant and the other tenants of the Building or any of
them the same shall be referred to the
42
Expert for determination (the Expert to act as an expert and not
as an arbitrator) whose decision shall save in the case of
manifest error be binding on the parties (including his decisions
as to the responsibility for his costs)
(C) The fair proportion to be determined by the Management Company in
paragraph 3(A) above shall be determined on the basis that all
accommodation within the Building let or occupied or designed
contracted or adapted for letting or occupation (other than
management accommodation) is fully let on terms which include
service charge provisions consistent with the service charge
provisions contained in this lease (save where otherwise specified
herein) and such proportion shall not be increased or altered by
reason of the fact that at any time any part of such accommodation
may be vacant or that any tenant or other occupier of any other
part of the Building may default in payment of its due proportion
of the Service Cost
4. (A) The Tenant shall pay to the Management Company the Interim Sum
without deduction by equal quarterly instalments in advance on the
usual quarter days unless the Management Company shall reasonably
anticipate that amounts to be incurred during the year immediately
next following are anticipated as being incurred in accordance with
a programme of non equal expenditure in which event the Management
Company shall serve notice to such effect upon the Tenant and shall
thereupon be entitled to require amounts of the Interim Sum to be
paid by advance quarterly instalments of unequal amounts reasonably
stipulated by the Management Company
(B) The Management Company shall be entitled to require as part of the
Interim Sum payments in advance on account of the cost of the
consumption of and supply charges in respect of electricity
consumed within the Premises (save for any amounts which are
invoiced directly by London Electricity plc to the Tenant) such
sums not to exceed a fair and proper estimate of amounts
reasonably anticipated by the Management Company as falling due
within the next quarter
(C) If the Tenant consistently requests the provision of any of the
Services outside Normal Business Hours the Management Company
shall be entitled in addition to require the Tenant to pay along
with payments of the Interim Sum a fair and proper estimate of
amounts likely to be payable by the Tenant in the next quarter on
account of such Services in accordance with the terms of this
lease
(D) The Interim Sum for the Accounting Period ending 31st December
1996 shall be pounds sterling 74,000
(E) Either before or as soon as practicable after the commencement of
every Accounting Period the Management Company shall serve or
cause to be served on the Tenant written notice of the Interim Sum
for the relevant Accounting Period Provided that without prejudice
to the provisions of paragraphs 6 and 7 of this schedule if the
written notice aforesaid shall be served after the first occurring
quarter day in the relevant Accounting Period the Tenant shall
until service of the written notice aforesaid make payments on
account of the Interim Sum for the relevant Accounting Period on
the days and in the manner provided by sub-paragraph (A) of this
paragraph of this schedule at an annual rate equal to the Interim
Sum for the immediately preceding Accounting Period
43
5. (A) As soon as practicable after the expiry of every Accounting Period
(and in any event within 4 months after such expiry) the Management
Company shall serve or cause to be served a Service Charge
Certificate on the Tenant for the relevant Accounting Period
(B) A Service Charge Certificate shall contain a summary of the
Service Cost in respect of the Accounting Period to which it
relates and the relevant calculations showing the Service Charge
(C) The Tenant may request further details of the breakdown of the
expenditure under any particular item or items shown in a Service
Charge Certificate by giving notice thereof in writing to the
Management Company within three months of the date of service on
the Tenant of the relevant Service Charge Certificate and upon
receipt of such a notice the Management Company shall furnish to
the Tenant all such relevant details in its possession or control
or which can reasonably be obtained by it as relate to the
expenditure under the item or items in question at the cost of the
Tenant (include all books of account receipts demands and
invoices) PROVIDED ALWAYS that notwithstanding the giving of any
such notice the Tenant shall nevertheless pay all Interim Sums and
Service Charges as and when they fall due or as may be underpaid
from time to time (but without prejudice to any challenge claim or
dispute that the Tenant may have made or may make in the future in
respect of its Service Charge liability or otherwise)
6. Within fourteen days after the service on the Tenant of a Service Charge
Certificate showing that the Service Charge for any Accounting Period
exceeds the Interim Sum for that Accounting Period the Tenant shall
(without prejudice to any challenge claim or dispute as aforesaid) pay
to the Management Company or as it shall direct a sum equal to the
amount by which the Service Charge exceeds the Interim Sum provided that
and the Tenant hereby acknowledges that if there shall be any such
excess in respect of the Accounting Period the amount of such excess
shall be a debt due from the Tenant to the Management Company and in the
event that such excess is not received in cleared funds by the
Management Company within 14 days of the due date for payment it shall
attract interest at the Interest Rate calculated for the period
commencing on the due dates for payment and ending on the date the sum
is subsequently received by the Management Company notwithstanding that
the Term may have expired or been determined before the service by or on
behalf of the Management Company of the relevant Service Charge
Certificate
7. If in any Accounting Period the Service Charge is less than the Interim
Sum for that Accounting Period a sum equal to the amount which the
Interim Sum exceeds the Service Charge shall be accumulated by the
Management Company and shall be applied in or towards the Service Charge
for the next following Accounting Period or Accounting Periods or at or
after the end of the Term repaid to the Tenant within 14 days after
preparation of the Service Charge Certificate and the event that the
excess is not received by the Tenant on the due date for payment it
shall attract interest at the Interest Rate for the period commencing as
the due date for payment and ending on the date that the sum due is
received in cleared funds by the Tenant
8. Unless challenged by the Tenant pursuant to the provisions of paragraph
9 of this schedule every notice certificate calculation determination or
assessment made by or on behalf of the Management Company referred to in
this schedule shall (save where a manifest error appears) be conclusive
and binding upon the parties hereto
44
9. The Tenant (acting reasonably) may at any time within six months after
the submission of a Service Charge Certificate challenge it on any
reasonable ground (including without limitation on the ground that the
Service Charge therein stated exceeds the Service Charge which should
have been payable had the provisions of this lease been properly adhered
to) Provided that the Tenant gives notice with full particulars of its
ground of alleged challenge and in any such case:
(A) any sum due to or payable by the Management Company pursuant to
paragraphs 6 and 7 above shall still be paid or allowed pending
resolution of the Tenant's challenge as if the Service Charge
Certificate were correct
(B) the Management Company and the Tenant shall endeavour to resolve
the relevant issue but if they cannot do so the issue in dispute
shall be referred to the Expert (acting as an expert and not an
arbitrator) whose decision shall save in the case of manifest
error be binding on the parties (including his decision as to the
responsibility for his costs)
(C) such adjustments to the Service Charge Certificate as may be
required to be made in consequence of the resolution of the
dispute shall be paid as soon as reasonably practicable after
such resolution and any sum due to or payable by the Management
Company shall then be paid or allowed (as the case may be)
immediately together with interest at three per cent below the
Interest Rate on such sum during the period which it has been
underpaid or overpaid
10. All sums obtained from the Tenant and any other tenants or occupiers of
the Building towards the Service Cost and sums collected in respect of
the Reserve shall each be placed in separate interest bearing designated
deposit accounts to be applied only towards the cost of providing the
Services and all interest accrued on such deposit account shall be
credited (net of tax) to the account
11. The Management Company will account to the Landlord as soon as
practicable following expiry of each Accounting Period for that part of
the Service Charge which relates to costs directly incurred by the
Landlord and not by the Management Company including (but not limited
to) the costs referred to in paragraphs 5 7 8 9 and 12 of Part II of
schedule 6
12. If in the Management Company's reasonable discretion any of the Services
have to be provided to a greater extent (or the cost of provision of
such Services is greater) than would normally apply in the context of
the general management of the Building in accordance with this lease as
a result either:-
(a) of a specific request by the Tenant (with or without other tenants
or occupiers of accommodation in the Building); or
(b) where such provision is required in the interests of good estate
management as a result of any acts or omissions of the Tenant in
relation to its use and occupation of the Premises
then the Management Company shall be entitled to require the Tenant to
meet the cost of such provision (or a fair proportion thereof determined
by the Management Company) within 10 working days following a demand by
the Management Company
45
SCHEDULE 6
(SERVICES)
PART I
1. Inspecting maintaining repairing amending altering and (where consistent
with an obligation to repair) rebuilding and renewing and where
appropriate treating washing down painting and decorating all load
bearing and other structural parts of the Building and the relevant
parts of it described in paragraphs (ii) and (iii) of schedule 1
2 Inspecting servicing maintaining operating and repairing and (where
consistent with an obligation to repair) renewing amending overhauling
and replacing the Landlord's Services Equipment and all other apparatus
plant machinery and equipment within the Building (if any) from time to
time excluding any "stand alone" systems installed by the Tenant or any
other tenant or occupier of the Building
3. Inspecting servicing maintaining operating repairing cleansing emptying
amending altering and renewing overhauling and replacing all Service
Media
4. Keeping the Common Parts and the car park within the Building properly
cleansed decorated treated maintained and lit to such standard as the
Management Company may from time to time consider adequate but the
Common Parts and the car park shall be operational 24 hours a day 7 days
a week
5. Providing such mechanical ventilation heating and (if deemed reasonably
desirable by the Management Company) cooling for such parts of the
Building and for such hours and times of the year (subject to clause 6)
as the Management Company shall in its discretion reasonably determine
save that such mechanical ventilation heating and cooling for the lifts
lobby and entrance halls and toilets shall be provided throughout Normal
Business Hours and at the request of the Tenant outside those hours
subject to the Outside Normal Business Hours Charge
6. Providing and maintaining at the Management Company's discretion any
furniture architectural or ornamental features or murals and any
horticultural displays plants shrubs trees or garden area in the Common
Parts and maintaining the same
7. Supplying whether by purchase or hire and maintaining (and where
consistent with an obligation to repair) renewing replacing repairing
servicing and keeping in good and serviceable order and condition all
fixtures and receptacles appliances materials equipment plant and other
things which the Management Company may reasonably deem desirable or
necessary for the maintenance appearance upkeep or cleanliness of the
Building or any part of it or otherwise in connection with the provision
of the Services
8. Cleaning as frequently as the Management Company shall in its reasonable
discretion consider adequate the exterior and interior of all window
glazing and window frames and other fenestration units in the Common
Parts and the outside of the window glazing referred to in paragraph
(iii) of schedule 1 and the maintenance cleansing repair inspection and
(where necessary) renewal or replacement of all window cleaning) cradles
carriageways and runways
9. Providing a security service 24 hours a day to the Common Parts
(including the ground floor entrance hall at times when receptionists
are not present) and the car park within the Building including where
reasonably appropriate in the Management Company's
46
judgment closed circuit television and/or other plant and equipment for
the purpose of surveillance and supervision of users of the Building
10. Disposing of refuse from the Building (including collecting and
compacting or otherwise treating or packaging as the Management Company
reasonably thinks fit such refuse and if necessary pest control) and
(and where consistent with an obligation to repair) the provision repair
maintenance and renewal of any plant and equipment in connection
therewith
11. Maintaining 24 hours a day 7 days a week an adequate supply of hot and
cold water and supplying washing and toilet requisites in the lavatory
accommodation in the Building
12. Such rodent or other pest control in the Building as the Management
Company shall reasonably consider necessary or desirable
13. Providing one or more receptionists and/or security in the ground floor
entrance hall of the Building 24 hours a day 7 days a week
14. Providing and maintaining a signboard in the entrance lobby of the
building for the display of tenants' names
15. Controlling so far as practicable 24 hours a day 7 days a week traffic
flow within the car park in the Building and traffic 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
16. Providing and maintaining a post room facility for the reception of mail
to the Building
17. Complying with the obligations on the part of the tenant contained in
the Head Lease save for the payment of rent
18. Complying with the obligations set out in clause 6
19. Any other services relating to the Building or any part of it provided
by the Management Company from time to time which shall be:-
(1) reasonably capable of being enjoyed by the occupier of the
Premises or
(2) reasonably calculated to be for the benefit of the Tenant and
other tenants of the Building or
(3) appropriate for the maintenance upkeep or cleanliness of the
Building or
(4) otherwise in keeping with the principles of good estate management
PROVIDED ALWAYS that
(i) Where in this schedule there are references to matters or things
which are then stated to include certain particular matters or
things which are not also stated to be without prejudice to the
generality of the wording preceding it nevertheless the
reference to the particular matters or things shall be deemed to
be and in each case shall be without prejudice to the generality
of the wording preceding it
(ii) The Management Company shall subject to clause 6 when reasonable
have the right to cease or to procure the cessation of the
provision of or add to or procure
47
the addition to any item of Services matter or thing specified in
this schedule if the Management Company shall having regard to
the principles of good estate management reasonably deem it
desirable or expedient so to do but before so doing the
Management Company shall notify all the tenants in the Building
but in the event of any failure of any of the Services shall use
all reasonable endeavours to restore the said Service
(iv) The Management Company or the managing agents may temporarily
withdraw any item of Services matter or thing specified in this
schedule if in their reasonable opinion such withdrawal is in the
interest of good estate management or if such withdrawal is due
to circumstances beyond the control of the Management Company
PART II
1. All fees and disbursements of any individual or firm or company
employed or retained by or on behalf of the Management Company or its
agents (including without limitation managing agents fees) for or in
connection with:-
(1) any surveying or accounting functions for the Building and
(2) the performance of the Services or any of them and any other
duties in or about the Building or any part of it relating to the
general management administration security maintenance protection
and cleanliness of the Building
2. The reasonable fees of the Management Company for any of the Services or
for the functions and duties referred to in paragraph 1 of this Part of
this schedule which shall be undertaken by the Management Company and
not by a third party
3. The cost (in addition to any fees referred to in paragraph 2 and where
the context permits paragraph 1 of this Part of this schedule) of
employing (whether by the Management Company or any managing agents or
any other individual or firm or company) such staff as the Management
Company may in its reasonable discretion consider appropriate for the
performance of the Services and the functions and duties referred to in
paragraph 1 of this Part of this schedule and all other incidental
expenditure in relation to such employment including without prejudice
to the generality of the foregoing:-
(1) salaries wages pensions and pension contributions benefits in
kind and other emoluments and National Insurance and other
statutory contributions or levies
(2) the provision of uniforms and working clothing
(3) the provision of vehicles tools appliances cleaning and other
material fixtures fittings and other equipment for the proper
performance of their duties and a store for housing the same and
(4) a reasonable notional rent for any premises reasonably provided
rent free for every such person's use occupancy or residence
4. The cost of entering into any contracts for the carrying out of all or
any of the Services
5. All rates taxes assessments duties charges impositions and outgoings
which are now or during the Term shall be charged assessed or imposed on:-
(1) the whole of the Common Parts or any part of them
48
(2) any residential accommodation provided for caretakers and other
staff employed in connection with the Building and any other
premises provided as referred to in paragraph 3(4) of this Part
of this schedule
excluding any tax (other than VAT) payable by the Landlord as a direct
result of any actual or implied dealing with the reversion of any Lease
or of the Landlord's receipt of income
6. The cost of the supply of water electricity gas oil and other fuel for
the provision of the Services and the cost of any electricity generating
transforming monitoring metering and distribution plant machinery and
equipment in or servicing the Building
7. The cost which the Landlord may be called upon pursuant to any Enactment
to pay as a contribution towards the expense of making repairing
maintaining rebuilding and cleansing any ways roads pavements or
structures Service Media or anything which may belong to or be used for
the Building or any part of it exclusively or in common with other
neighbouring or adjoining premises
8. The cost; of taking all steps deemed desirable or expedient by the
Landlord and/or the Management Company for complying with or making
representations against or otherwise contesting the incidence of the
provisions of any Enactment relating to or alleged to relate to the
Building or any part or it for which any tenant is not directly and
exclusively liable
9. The cost to the Landlord and/or the Management Company of abating
any nuisance in respect of the Building or any part of it insofar as
the same is not the liability of any tenant
10. Any interest and fees incurred in respect of money borrowed in
unforeseen or emergency circumstances to finance the provision of the
Services and the costs referred to in this Part of this schedule or
any of them
11. Any VAT (or any tax of a similar nature which may be substituted for or
levied in addition to it) incurred by the Management Company on any
other amount comprised in the Service Cost save to the extent that the
Management Company obtains credit for such VAT incurred by the
Management Company pursuant to sections 24 25 and 26 Value Added Tax Act
1994 or any regulations made thereunder
12. A reasonable notional rent for any management accommodation provided
within the Building to facilitate the provision of the Services
13. All other reasonable actual costs properly incurred in connection with
the provision of the Services
SCHEDULE 7
(MATTERS TO WHICH THE DEMISE IS SUBJECT)
1. The entries on the registers of Title Number NGL272172 as at the date
hereof
2. Agreement dated 24th November 1995 between The Prudential Assurance
Company Limited (1) 99 Bishopsgate Limited (2) The Scottish Amicable
Life Assurance Society (3)
49
SCHEDULE 8
PROVISIONS FOR VAT INDEMNITY
PART I
1. Additional Definitions:
"TAX CREDIT" means a credit in respect of, or repayment of; input VAT,
arising by virtue of and determined in accordance with sections 24, 25
and 26 Value Added Tax Act 1994 and regulation made thereunder
"TENANT'S AUDITORS" means the auditors for the time being of. the Tenant
provided that they are one of the following firms of accountants -
Deloitte Touche, Coopers and Lybrand, Ernst & Young, KPMG, Price
Waterhouse or Arthur Andersen - or such other reputable firm or
accountants as the Landlord has previously approved for the purpose of
this schedule 8 (such approval not to be unreasonably withheld or
delayed).
"VAT ELECTION" means an election under paragraph 2 of Schedule 10 Value
Added Tax Act 1294 made by the Landlord or any person of whom the
Landlord is a "Relevant Associate" within the meaning of paragraph 3(7)
of Schedule 10 or any other election or voluntary act by the Landlord or
any person connected with the Landlord (as determined under the
provisions of Section 839 of the Income and Corporation Taxes Act 1988)
which results in VAT being payable on the rent first reserved by this
lease
"VAT YEAR" means a tax year for Value Added Tax purposes determined in
accordance with Part XIV of the Value Added Tax Regulations 1995.
"VAT YEAR CERTIFICATE" means the certificate to be provided by the
Tenant following the end of the Tenant's VAT Year in the form set out in
Part II of this Schedule.
2. Pavment of VAT - no VAT Election
In the event that the rent first reserved (or any part thereof)
constitutes consideration for a taxable supply for VAT purposes which
would be a taxable supply whether or not a VAT Election has effect in
respect of the Premises, the Tenant shall pay such VAT in addition to
the rent first reserved without any adjustment of rent first reserved
under this schedule.
3. Adjustment of rent first reserved and payment of VAT - VAT Election made
If and for all periods where the rent first reserved (or any part
thereof) constitutes consideration for a taxable supply for VAT purposes
which would not be a taxable supply but for a VAT Election having effect
in respect of the Premises, the rent first reserved shall be adjusted to
such amount as when aggregated with that part of the VAT chargeable
thereon in respect of which the Tenant does not obtain a Tax Credit,
equals the rent first reserved which would have been paid had no VAT
Election been made.
4. Determination of adjustment of rent first reserved
4.1 At least 28 days prior to (a) 29th September 1998 and (b) every
subsequent anniversary thereof the Tenant shall serve a VAT Year
Certificate on the Landlord. Where the Tenant has served such VAT Year
Certificate (or is deemed to have done so pursuant to paragraph 4.2 of
this Part I below), the Tenant shall pay the amounts (including the VAT)
stipulated (or deemed to be stipulated) in paragraph 3 of such VAT Year
Certificate on
50
the due date for payment of the next installment of the rent first
reserved (and on the due date for subsequent instalments), subject
however to paragraph 4.3 of this Part I below.
4.2 If the Tenant fails to serve a VAT Year Certificate at least 28 days
prior to the due date for payment of the sum in respect of which
paragraph 3 above will apply, the Tenant shall be deemed to have served
a VAT Year Certificate specifying in paragraph 1 thereof the same
estimated proportion as stated in the previous VAT Year Certificate
served, or if no previous VAT Year Certificate has been served by the
Tenant at any time prior to the due date for any VAT Year Certificate an
estimated proportion of nil per cent. If the Tenant fails to serve a VAT
Year Certificate on more than one consecutive occasion the Tenant shall
be deemed, on the second failure and any subsequent failure, until
service of the next VAT Year Certificate, to have served a VAT Year
Certificate specifying in paragraph 1 thereof an estimated proportion of
nil per cent.
4.3 The VAT Year Certificate shall be final and binding unless the Landlord
notifies the Tenant within 30 days after the date on which a VAT Year
Certificate has been served that it disputes the VAT Year Certificate on
the grounds of manifest error. Unless such notification is given, no
further adjustments (other than those covered by the VAT Year
Certificate) shall be made in respect of any instalments of rent first
reserved in the VAT Year covered by the aforementioned VAT Year
Certificate. Whether or not the Landlord notifies the Tenant that it
disputes any amount, the Tenant shall pay on the due date for payment of
the next installment of rent first reserved immediately following the
service of the VAT Year Certificate to which the dispute relates, the
amount stipulated in paragraph 3 of the VAT Year Certificate.
4.4 If the Review Rent is not agreed or determined until after a relevant
Review Date, the amount of any increase to be paid pursuant to paragraph
2 of schedule 4 of this lease shall (if paragraph 3 above applies at
that time) be adjusted on the basis of the last VAT Year Certificate.
The adjustment amount shall be paid at the time when the amount of any
unadjusted increase would have been due to be paid and the provisions of
this schedule shall apply as if the amount of the increase were an
amount to which paragraph 3 of Part I of this schedule 8 applied.
4.5 The Landlord may notify the Tenant in writing at any time within five
days of the service of any VAT Year Certificate (or within five days of
the last date on which the Tenant should have served a VAT Year
Certificate and is therefore deemed to have served one) that it requires
the Tenant to obtain a certificate from the Tenant's Auditors at the
Tenant's cost (if adjustments are required following such process) or at
the Landlord's cost (if no such adjustments are required) in the form
set out in the VAT Year Certificate. The Tenant's Auditor's certificate
shall be provided at least eight days prior to the date of payment of
the rent first reserved to which such certificate relates, together with
the Tenant's revised VAT Year Certificate (if required in order for the
Tenant's Auditors to be able to provide a certificate). The Tenant shall
pay in accordance with paragraph 4.1 above the amount stipulated in
accordance with paragraph 3 of such VAT Year Certificate (as revised, if
required) on the date for payment of the rent first reserved.
4.6 If adjustments are required pursuant to any VAT Year Certificate as a
result of the proportion of VAT for which the Tenant has obtained or
will obtain a Tax Credit differing from the proportion previously taken
into account in calculation any payment, any such difference shall be
taken into account (after having determined the amount of rent first
reserved payable in respect of the next quarter in accordance with
paragraph 3 above) in calculating the next actual payment of rent first
reserved (either by increase or
51
decrease), the amount of which shall be set out in paragraph 3 of the
VAT Year Certificate
4.7 Interest shall be payable at three per cent below the Interest Rate by
the Landlord and three per cent below the Interest Rate by the Tenant on
the difference between the amount actually paid pursuant to the relevant
VAT Year Certificate on the due date for payment of any sum to which
paragraph 3 of Part I of this schedule 8 applies and the amount which
should have been paid, from such due date until the date of payment of
the adjusted amount pursuant to paragraph 4.3. Where the actual amount
paid (the "Initial Payment") on the due date for payment of any sum was
subsequently adjusted on payment of any later installment of the rent
first reserved ("the Adjusted Payment") in accordance with paragraph 4.6
of Part I of this Schedule 8 and paragraph 3(b) of the VAT Year
Certificate, the interest shall be calculated on the basis of the
difference between the Initial Payment and the amount which should have
been paid pursuant to paragraph 4.1 until the date of the Adjustment
Payment, and then on the difference between the Adjustment Payment and
the amount which should have been paid until payment of that amount
pursuant to paragraphs 4.3.
4.8 Following any assignment of the whole of the Premises, the provisions
of this schedule 8 shall apply to any new Tenant as if it were the first
Tenant, and a VAT Notice served by the new Tenant shall not take into
account any adjustments made, or to be made, in respect of any previous
Tenant.
5. Miscellaneous
The Tenant shall be at liberty to carry on the ordinary course of its
trade as it wishes and shall not be precluded from proposing or
accepting a method of attribution designed or maximise its Tax Credit
and covenants not to enter any arrangement which has the specific
purpose of increasing the amount by which the rent first reserved is
decreased by virtue of this schedule 8.
52
PART II
VAT YEAR CERTIFICATE
To: The Landlord From: The Tenant
We refer to paragraph 4.3 of Part I of schedule 8 to the Lease dated [ ]
made between 99 Bishopsgate Limited (1) 99 Bishopsgate Management Limited (2)
Hammerson U.K. Properties plc (3) Donaldson Lufkin & Jenrette International
Limited (4) and Donaldson Lufkin & Jenrette Inc. (5) in respect of premises
on [ ] floor of the building known as 99 Bishopsgate London EC2 and pursuant
to that paragraph:
1. Our VAT Year which included the following quarter days [ ], ended
on [ ], ended on [ ].
(a) The part of the VAT charged on the rent first reserved paid in the
VAT Year for or in respect of which we estimate/have determined (in
accordance, where relevant, with the return made, or to be made, for
the prescribed accounting period next following the end of the VAT
Year) we will be unable to obtain credit or repayment is a proportion
of [ ] per cent of the total VAT charged.
(b) The following Table sets out the part of the VAT charged which was
expected to be irrevocable during the VAT Year where it has been
determined on the basis of paragraph 2(a) above that that differs
from the amount of VAT for or in respect of which we actually obtained,
or will be able to obtain, credit or repayment.
Dates Rent first reserved Estimate Adjustment Determination
----- ------------------- -------- ---------- -------------
* ** ***
* estimate of proportion of VAT for or in respect of which we estimated
we would be unable to obtain credit or repayment as set out initially
in VAT Notice.
** adjusted estimate of proportion of VAT for or in respect of which we
estimated we would be unable to obtain credit or repayment as set out
in subsequent VAT Notice.
*** proportion of VAT for or in respect of which we have now estimated/
determined we shall be unable to obtain credit or repayment, in
accordance with Sections 24-26 of the Value Added Tax Act 1994 and
the Value Added Tax Regulations 1995
3. We request that adjustment is made to the next installment of rent first
reserved so as to ensure that the amount of rent first reserved payable
in the VAT Year to which this VAT Year Certificate relates is as provided
in paragraph 3 of Part I of Schedule 8 to the Lease in accordance with
the information given in paragraph 2 above
and we calculate that the next installment of rent first reserved as so
adjusted shall be pounds sterling [ ] exclusive of VAT and the VAT
thereon shall be pounds sterling [ ], and that the interest payable
by the Tenant to the Landlord/Landlord to the Tenant, in accordance with
paragraph 4.7 of Part I schedule 8 to the Lease shall be pounds sterling
[ ].
4. We hereby declare that:
53
(a) we have complied with the covenant imposed upon us by paragraph 6.2
of Part I of schedule 8 to the Lease;
(b) the information contained in this VAT Notice is to the best of our
knowledge, information and belief complete and accurate;
(c) we have made all due returns to the Commissioners of Customs and
Excise and such returns are complete and accurate in all material
respects and have been made within the time limits provided by
statute.
Signed by
an authorised signatory on behalf of the Tenant
The above declaration are, to the best of our knowledge and belief after due
and careful enquiry, true, accurate and complete.
Signed by
Tenant's Auditors
54
THE COMMON SEAL of 99 BISHOPSGATE )
LIMITED was hereunto affixed in the presence of:- )
/s/ Director [SEAL]
/s/ Director
THE COMMON SEAL of 99 BISHOPSGATE )
MANAGEMENT LIMITED was hereunto )
affixed in the presence of:- )
/s/ Director [SEAL]
/s/ Director
THE COMMON SEAL of HAMMERSON U.K. )
PROPERTIES plc was hereunto affixed in the )
presence of:- )
/s/ Director [SEAL]
/s/ Director
55
99 BISHOPSGATE LIMITED
AND
DONALDSON LUFKIN & JENRETTE INTERNATIONAL LIMITED
--------------------------------------------------
PART 12TH FLOOR, 99 BISHOPSGATE
REINSTATEMENT SPECIFICATION
WHICH FORMS PART OF THE
UNDERLEASE DATED 11TH OCTOBER 1996
--------------------------------------------------
99 BISHOPSGATE--PART 12TH FLOOR
REINSTATEMENT SPECIFICATION
CEILING TILES
CAPL system 335 Tartan Grid System tiles generally 1200 x 450 mm plus 1200 x
300 nominal, face perforated to CAPL pattern D1522 including 10mm plain
borders. Panels finishes polyester powder paint incorporating acoustic
insulation 45 kg/m(3), block tissue faced, Rockwool backed with an inverted
steel tray, 'stitched' to ceiling panel.
The ceiling support system is a fixed element from which the tartan grid,
ceiling tiles, lighting fittings, air handling grilles, sprinklers, smoke
detectors, pa system and plenums are hung.
WIRING HARNESS
A pre-formed flexible wiring system comprising:--
Multi conductor home-run cable
Master distribution box
Extender table
Whip end extender cable by MODULAR WIRING SYSTEMS EUROPE LTD
LIGHT FITTINGS
TYPE A
Moorlite ref SP300/13532/W2/SSL/HFG/2436/AH. 2 X 36 watt TB triphosphate
flourescent colour temp 3500 (degrees) K with Cat 2 semi-specular louvre, high
frequency control gear and air handling facilities to 41 l/s. Finished to RAL
9010 20% gloss.
TYPE AE
As type A but incorporates 3 hour emergency battery invertor packs.
TYPE A2
Moorlite ref SP300/135655/W2/SSL/HFG/2218/AH. 2 x 18 watt TB triphosphate
colour temp 3500 (degrees) K with semi-specular louvre to LG3 cat 2, high
frequency control gear and air handling facilities to 41 l/s. Finished to RAL
9010 20% gloss.
TYPE B
Moorlite ref SP300/13657/W2/SSL/HFG/2224/AH. 2 x 24 watt TCL flourescent
colour temp 3500 (degrees) K with semi-specular louvre to LG3 cat 2 gear and
air handling facilities to 41 l/s. Finished to RAL 9010 20% gloss.
COMPUTER ADDRESSABLE LIGHTING MANAGEMENT SYSTEM
Lighting Management System which provides independent control and monitoring
of every luminaire, by DELMATIC type ZMC, comprising ZMC floor controllers
and ZMC 8 way output control module.
ACCESSORIES
Wandsworth type gridswitch series 3 with black inserts.
FIRE ALARM AND DETECTION SYSTEM
An intelligent analogue programmable addressable system by ADT type IRC-3
incorporating voice and public address comprising.--
Smoke detectors--Signature Series 4D.
Break glass call point--SIGA--KR1/SR/6S
Speakers--QFIT/SPECIAL/TF
SECURITY SYSTEM
A distributed intelligence structured wide area access control system by ADT
type Janus comprising:--
Magnalocks--DRYAD DS7001
Proximity readers--IDE/004/REA
Passcards--IDE/001/PC
Passive Infraced Detectors 360 (degrees)--P55048
CCTV camera--CD/6252
Door controller--IDC
RAISED FLOOR
Fully accessible raised access floor installed with an average overall depth
of 125mm.
Panel Type: GCS Cornerlock
Panel Grade: Medium
Finish: Tate GCS Standard Finish
FAN COIL UNITS
The office floor is served by a four pipe fan coil unit air-conditioning
system located within the suspended ceiling void. The units are as
manufactured by Senior Moducel of the Airtech range EVU 235 series. The units
are constructed from heavy gauge prime quality plastisol sheet steel
incorporating a multi-spigoted, acoustically lined discharge plenum. The
forged brass 4 part control valve, as manufactured by Johnson Controls series
VB55, is proportionally controlled in sequence with the motor speed to
achieve maximum efficiency. The fan motor speed controller is manufactured by
SIEBE Ltd. model number 1262/1. The valve actuator is manufactured by Johnson
Controls model number VA7310.
PLENUMS
Conditioned air from the FCU's are distributed via sheet metal ductwork to
acoustically insulated plenum boxes as manufactured by Carrier of the
Moduboot 35BD series. The plenum boxes are complete with fresh air collar
where required.
SUPPLY DIFFUSERS
The plenum box terminates with a linear diffuser to provide uniform air
distribution. The diffusers are manufactured by Carrier of the 35BD series
types AG and AH one-way and two-way directional blow. One number diffuser per
FCU is supplied complete with air sensor as manufactured by Sontay series
TT55, the sensor is completed with 3 metres of LSF cable. These diffusers are
constructed with an aspirator box to accommodate the sensor.
EXTRACT AIR DIFFUSERS
Air is extracted from the space via air handling luminaires (as specified
under the Electrical Services) and linear extract air diffusers. The extract
air diffusers are similar to the supply being manufactured by Carrier series
35BD type AG, 1 way directional blow. However these diffusers do not require
a fitted plenum box.
VOLUME CONTROL DAMPERS
Motorised isolation dampers are installed in the supply and extract ductwork
main branches to achieve quadrant control, via the BMS, to the floor. Volume
control dampers are installed to all the sub-branches to regulate the air
volume. The dampers are manufactured by Volume Control Devises, are stainless
steel, aerofoil multi-blade dampers.
The isolation damper actuators are as manufactured by SIEBE Ltd model no.
MF/6233.
FIRE DAMPERS
Where fire dampers are installed they are of the fusible link type as
manufactured by Volume Control Devises series FB. The dampers comprise of
interlocking stainless aerofoil blades, stainless steel bearings and
peripheral gasketing, totally enclosed drive mechanism and double skin
galvanised 18 gauge spigot casing.
SPRINKLERS
A sprinkler system is installed throughout to comply with the requirements of
BS 5306, Part 2 1990 and the recommendations of the Loss Prevention Council.
The sprinkler heads as installed are flush mounted as manufactured by
Reliable Ltd.
VALVES
Commissioning Valves and Isolating Valves are installed to the return and
flow, respectively, of the Landlords and Tenants secondary CHW installation
to the floor. They are also installed to the LTHW constant temperature system
to the floor. The valves are as manufactured by Tour and Anderson Limited.
Commissioning Valves are typically as follows:--
Up to 50mm diameter TA Fig MD41. Ametal bronze commissioning set comprising
of MD20 double regulating valve and MDFO on fix plate. Isolation valves are
typically as follows:--
Up to 50mm diameter TA Fig 64. Ametal gate valve. 65mm and above TA Fig 35
lever operated butterfly valve.
PERIMETER HEATING
Perimeter heating is provided to offset heat losses to the glazing. The
finned heating element is manufactured by HCP Ltd, installed in an
Architectural perimeter rail provided by Permasteelisa, the cladding
manufacturers.
VENETIAN BLINDS
Silver fine line aluminium blinds integral with the curtain walling system.
Supplied by Abba srl, Italy.
WALLS, CORE, COLUMN
Finished in emulsion paint.
SKIRTING
Hardwood--American Cherry
CARPET
Grade 3 Fusion Bonded with PVC based backing with printed overlay and inlays
and borders as required. From Milliken standard range.
FLOOR BOXES
3 compartment box with interchangeable plates. Minimum layout 1 box to 10
m(2).
DOORS
Veneer finish with hardwood lippings--American Cherry.
PLANS
12th Floor General Arrangement Plan
Reflected Ceiling Plan--12th Floor
Raised Floor Plan--12th Floor
Floor Coordinated HL Services Layout, SE Zone 12th Floor
Floor Coordinated HL Services Layout, NE Zone 12th Floor
Floor Coordinated HL Services Layout, SW Zone 12th Floor
Floor Coordinated HL Services Layout, NW Zone 12th Floor
Electrical Services Lighting and Small Power Layout 17th Floor
08/10/96
DATED 11TH OCTOBER 1996
99 BISHOPSGATE LIMITED
and
99 BISHOPSGATE MANAGEMENT LIMITED
and
HAMMERSON U.K. PROPERTIES plc
and
DONALDSON, LUFKIN & JENRETTE
INTERNATIONAL LIMITED
UNDERLEASE
of
Part 12th Floor 99 Bishopsgate London EC2
HERBERT SMITH
Exchange House
Primrose Street
London EC2A 2HS
Tel: 0171-374 8000
Fax: 0171-496 0043
Ref: 129/P17/30433514
TABLE OF CONTENTS
CLAUSE HEADING PAGE
1. Definitions 1
Acts of Terrorism 1
Building 1
Common Parts 1
Development 2
Electricity Cost 2
Enactment 2
Head Lease 2
Insurance Cost 2
Insurance Rent 3
Insured Risks 3
Interest Rate 3
Landlord's Services Equipment 4
Lettable Unit 4
Normal Business Hours 4
Outside Normal Business Hours Charge 4
Permitted Use 5
Planning Law 5
Plans 5
Premises 5
Public Authority 5
Reinstatement Specification 5
Services 5
Service Media 5
Term 5
VAT 5
2. Interpretation 6
3. Demise and Rents 7
4. Tenant's Covenants 8
(1) Rent 8
(2) VAT 8
(3) Outgoings 8
(4) Compliance with Enactments 9
(5) Notices 9
(6) Repair 9
(7) Decoration and general condition
and servicing 9
(8) Refuse 9
(9) To permit entry 9
(10) Compliance with notices relating
to repair or condition 10
(11) Encroachments 10
(12) Alterations and reinstatement 10
(13) Use 12
CLAUSE HEADING PAGE
(14) Signs 12
(15) Alienation 12
(16) Payment of cost of notices consents etc. 12
(17) Obstruction/overloading 13
(18) Parking/goods delivery 13
(19) Planning Law and compensation 13
(20) Indemnity 14
(21) Defective Premises 14
(22) Insurance and fire fighting equipment 14
(23) Dangerous and contaminative materials 15
(24) Yield up 15
(25) Regulations and covenants 15
(26) Security and access 16
(27) Service Charge 16
5. Landlord's Covenants 16
(1) Quiet Enjoyment 16
(2) Insurance 16
(3) Head Lease 16
(4) Electricity Provision 17
(5) Management Company access 17
6. Provision of Services 17
7. Provisos 19
(1) Forefeiture and re-entry 19
(2) Letting scheme use and easements 19
(3) Common Parts and Service Media 19
(4) Service of notices 19
(5) Landlord's liability 20
(6) No warranty as to use 20
(7) Rateable value appeals 20
(8) No warranty as to security 20
(9) Jurisdiction 21
(10) Exclusion of Landlord and Tenant Act 1954 21
8. Option to determine 21
9. Landlord's Guarantor 21
10. Stamp Duty Certificate 22
Schedule 1 The Premises 23
Schedule 2 Easements and rights granted 23
Schedule 3 Exceptions and reservations 24
CLAUSE HEADING PAGE
Schedule 4 The Service Charge 25
Schedule 5 Services 30
Schedule 6 Matters to which the demise is subject 33
LEASE PARTICULARS
- ----------------------------------------------------------------------------
1. DATE 11TH OCTOBER 1996
THIS LEASE IS AND IS INTENDED TO BE DELIVERED ON THE DATE
FIRST ABOVE WRITTEN
- ----------------------------------------------------------------------------
2. PARTIES
(a) LANDLORD : 99 Bishopsgate Limited
(b) TENANT : Donaldson, Lufkin Jenrette
International Limited
(c) MANAGEMENT COMPANY : 99 Bishopsgate Management Limited
(d) LANDLORD'S GUARANTOR : Hammerson U.K. Properties plc
- ----------------------------------------------------------------------------
3. DEMISED PREMISES : ALL THOSE premises on the part 12th
floor of the Building shown for
identification only edged red on
Plan 1.
- ----------------------------------------------------------------------------
4. BUILDING : 99 Bishopsgate London EC2
- ----------------------------------------------------------------------------
5. CONTRACTUAL TERM AND : Commencing on the date hereof and
TERM COMMENCEMENT expiring on 29th September 1997
AND EXPIRY DATES (subject to earlier determination)
- ----------------------------------------------------------------------------
6. INITIAL RENT : Nil (subject to clause 8)
- ----------------------------------------------------------------------------
THIS UNDERLEASE made the day of One thousand nine hundred and ninety
six
BETWEEN:-
(1) 99 BISHOPSGATE LIMITED whose registered office is at Lo Lam House Kumul
Highway Port Vila Vanuatu (Co. Regn. No. 10469) (registered under Section
21A to the Companies Act 1985 under company number FC018588 and branch
number BR002962) whose principal place of business is at 100 Park Lane
London W1Y 4AR (the "LANDLORD")
(2) 99 BISHOPSGATE MANAGEMENT LIMITED whose registered office is at 100 Park
Lane London W1Y 4AR (Co. Regn. No. 3071752) (the "MANAGEMENT COMPANY")
(3) DONALDSON, LUFKIN & JENRETTE INTERNATIONAL LIMITED whose registered
office is at Moorgate Hall, 155 Moorgate, London EC2M 6XB (Co. Regn. No.
2475089) (the "TENANT")
(4) HAMMERSON U.K. PROPERTIES PLC whose registered office is at 100 Park Lane
London W1Y 4AR (Co. Regn. No. 298351) (the "LANDLORD'S GUARANTOR")
WITNESSETH as follows:-
1. DEFINITIONS
In this lease the following expressions have the respective specified
meanings (subject to any particular interpretation required by clause 2):-
(1) "ACTS OF TERRORISM" means any act or omission of any person acting on
behalf of or in connection with any organisation or on his own behalf
which carries out activities directed towards overthrowing or
influencing by force or violence Her Majesty's Government in the
United Kingdom or any other government de jure or de facto
(2) "BUILDING" means the land (of which the Premises form part) having a
frontage to the west side of Bishopsgate and a return frontage to the
south side of Wormwood Street and all buildings fixtures and other
structures whatsoever from time to time thereon and the appurtenances
thereof which land (together with the building now erected thereon) is
known as 99 Bishopsgate London EC2 and is for the purpose of
identification shown verged by a blue line on the Building Plan
together with any adjoining areas designated by the Landlord or the
Management Company
(3) "COMMON PARTS" means all parts of the Building which are from time to
time intended for the common use and enjoyment of the tenants and
occupiers of the Building and persons claiming through or under them
(whether or not other parties are also entitled to use and enjoy the
same) and reasonably designated as such by the Landlord and including
without prejudice to the generality of the foregoing the pedestrian
ways circulation areas lobby entrance halls lifts lift shafts fire
escapes landings staircases passages forecourts car park landscaped
areas plant rooms management suites and any other areas which
1
are from time to time during the Term reasonably provided by the
Landlord for common use by or benefit of the tenants and occupiers of
the Building but excluding (for the avoidance of doubt) any premises
intended to let to any party or for occupation by the Landlord or the
Management Company other than for the provision of the Services
(4) "DEVELOPMENT" has the meaning ascribed to that expression by Planning
Law
(5) "ELECTRICITY COST" means the actual cost to the Landlord of the
provision of electricity to the Premises for consumption by the Tenant
in accordance with its covenant contained at clause 5(4) being a fair
proportion as determined by the Landlord of the total cost of the
provision of electricity to the Building as a whole (including the
provision of any security for the supply of electricity to the
Building which may from time to time be required by the relevant
undertaker responsible for the supply of electricity chosen by the
Landlord) which proportion shall so far as practicable be calculated
using readings taken in such manner and at such times as the Landlord
shall from time to time determine of the check meters relating to the
Premises from time to time installed but otherwise shall be determined
in such manner as the Landlord shall in its discretion consider to be
fair and reasonable in all the circumstances
(6) "ENACTMENT" means every Act of Parliament directive and regulation now
or hereafter to be enacted or made and all subordinate legislation
whatsoever deriving validity therefrom
(7) "HEAD LEASE" means the lease under which the Landlord holds the
Premises dated 29th September 1975 made between The Prudential
Assurance Company Limited (1) and Bishopsgate Developments Limited (2)
and "Superior Landlord" means the person for the time being entitled
to the reversion immediately expectant on the term granted by the Head
Lease and every other person having an interest in reversion to that
term
(8) "INSURANCE COST" means in respect of any period for which the same is
required by the Landlord to be calculated the aggregate of the amount
which the Landlord may reasonably and properly expend:-
(a) in effecting and maintaining insurance against the occurrence of
the Insured Risks in relation to the Building in such sum as in
the Landlord's reasonable opinion represents its then full current
replacement cost with such allowance as the Landlord from time to
time considers appropriate in respect of related liabilities and
expenses (including without limitation liability to pay any fees
or charges on the submission of an application for planning
permission and costs which might be incurred in complying with any
Enactment in carrying out any replacement work and sums in respect
of architects' engineers' and quantity surveyors' and other
professional fees and incidental expenses incurred in relation to
any works of debris removal and of replacement and all VAT) and
2
(b) in effecting and maintaining any insurance relating to the
property owners' liability and the employer's liability of the
Landlord in relation to the Building and anything done therein and
(c) equivalent to the total of all reasonable excess sums (being for
the avoidance of doubt the first part of any insurance claim)
which the insurers are not liable to pay out on any insurance
claim in respect of the Building and which the Landlord or the
Management Company may have expended in replacing the damaged or
destroyed parts of the Building
(9) "INSURANCE RENT" means in respect of any period for which the same is
required by the Landlord to be calculated the aggregate of:-
(a) a fair and reasonable proportion attributable to the Premises as
conclusively determined by the Landlord of the Insurance Cost for
the relevant period
(b) the reasonable amount which the Landlord may expend in effecting
and maintaining insurance against up to six years' loss of the
rent secondly hereinafter reserved and Service Charge and with any
addition to the amount insured as the Landlord may decide in
respect of VAT and
(c) (without prejudice to all other provisions of this lease relating
to the use of the Premises and the vitiation of any policy of
insurance) any reasonable amount which the Landlord may expend in
paying all additional premiums and loadings on any policy or
policies of insurance required to be paid as a result of anything
done or omitted by the Tenant and
(d) any tax charged on any premium for any such insurance
(10) "INSURED RISKS" means loss damage or destruction whether total or
partial caused by Acts of Terrorism fire lightning explosion riot
civil commotion strikes labour and political disturbances and
malicious damage aircraft and aerial devices (other than hostile
aircraft and devices) and articles accidentally dropped from them
storm tempest flood bursting or overflowing of water tanks and pipes
impact earthquake and accidental damage to underground water oil and
gas pipes or electricity wires and cables subsidence ground slip and
heave and such other usual commercial risks or perils against the
occurrence of which the Landlord may from time to time in its
reasonable discretion deem it desirable to insure subject to such
exclusions and limitations as are from time to time commonly imposed
by the insurers and subject also to the exclusion of such of the
risks specifically hereinbefore mentioned as the Landlord may in its
reasonable discretion decide where insurance cover in respect of the
risk in question is not for the time being available in the London
insurance market on reasonable terms
(11) "INTEREST RATE" means a yearly rate three per cent above either the
base rate of Barclays Bank plc or such other bank (being for the time
being generally recognised as a clearing bank in the London market)
as the Landlord may from
3
time to time nominate or if the base rate cannot be ascertained then
above such other rate as the Landlord may reasonably specify (and so
that whenever there is reference in this lease to the payment of
interest at the Interest Rate such interest shall be calculated on a
daily basis and compounded with quarterly rests on the usual quarter
days)
(12) "LANDLORD'S SERVICES EQUIPMENT" means all the plant machinery and
equipment (with associated Service Media) within or serving the
Building from time to time (whether or not with the Premises or other
premises let or intended to be let by the Landlord) comprising or
used in connection with the following systems (to the extent
specified in the following paragraphs of this definition):-
(i) the whole of the sprinkler system within the Building
(including sprinkler heads)
(ii) the whole of the fire detection and fire alarm systems
(iii) the whole of the permanent fire fighting systems (but
excluding portable fire extinguishers installed by the Tenant
or other tenants of the Building)
(iv) the whole of the chilled water system
(v) the whole of the building management system (including the
building security system) installed by the Landlord
(vi) the central electrical supply system from the mains supply
into the Building so far as (and including) the electrical
riser busbars connecting to the distribution boards at each
level in the Building which is let or intended to be let by
the Landlord
(vii) the whole of the air handling system and the electricity
supply and control systems for the same
(viii) the standby generators and associated cabling wiring and duct
work
but excluding in each case any "stand alone" systems installed by the
Tenant or any other tenant or occupier of the Building
(13) "LETTABLE UNIT" means any unit of accommodation forming part of the
Building which is intended by the Landlord at any material time to be
for separate occupation
(14) "NORMAL BUSINESS HOURS" means 7.30 a.m. to 7.30 p.m. on Mondays to
Fridays inclusive (except bank holidays) subject to adjustment at the
discretion of the Landlord from time to time.
(15) "OUTSIDE NORMAL BUSINESS HOURS CHARGE" means the whole of the actual
cost to the Management Company of carrying out or providing any of
the Services at the request of the Tenant outside Normal Business
Hours (including without prejudice to the generality of the foregoing
costs and expenses in the nature of those set out in Part II of
Schedule 5) or in the event
4
of any of the Services being carried out or provided outside Normal
Business Hours to the Tenant and any other tenant or tenants of the
Building a fair proportion thereof as reasonably determined by the
Landlord.
(16) "PERMITTED USE" means use as high class offices for any purpose
within Class B1(a) (but not for any other purpose within that Use
Class) of the schedule to the Town and Country Planning (Use Classes)
Order 1987
(17) "PLANNING LAW" means every Enactment for the time being in force
relating to the use development and occupation of land and buildings
and every planning permission statutory consent and agreement made
under any Enactment relating to the Building
(18) "PLANS" means the plans annexed hereto and "Building Plan" means that
one of them so marked
(19) "PREMISES" means the premises described in schedule 1 and all
permitted additions alterations and improvements made to them
(20) "PUBLIC AUTHORITY" means any Secretary of State and any government
department public local regulatory fire or any other authority or
institution having functions which extend to the Premises or their
use and occupation and any court of law and the companies or
authorities responsible for the supply of water gas and electricity
or any of them and any of their duly authorised officers
(21) "REINSTATEMENT SPECIFICATION" means the specification annexed hereto
or in the event that materials listed in the specification are not
available from time to time or appropriate for use (in the Landlord's
reasonable opinion) then reference to such materials will be
substituted by reference to materials of not materially less quality
which perform a similar function
(22) "SERVICES" means the services and other matters specified in clause 6
and Part I of schedule 5
(23) "SERVICE MEDIA" means those parts of the Building comprising gas
water drainage electricity telephone telex signal and
telecommunications heating cooling ventilation air conditioning fire
alarm and other pipes drains sewers mains cables wires supply lines
ducts conduits flues and all other common conducting media plant
appliances and apparatus for the provision supply control and
monitoring of services to or from the Building and other common
equipment
(24) "TERM" means a term of years commencing on the date hereof and
expiring on 29th September 1997 (subject to earlier determination in
accordance with clause 8)
(25) "VAT" means Value Added Tax as referred to in the Value Added Tax Act
1994 (or any tax of a similar nature which may be substituted for or
instead of it)
5
2. INTERPRETATION
(1) Words importing the singular include the plural and vice versa and
words importing one gender include both other genders
(2) The expressions "Landlord" "Tenant" and "Management Company" wherever
the context so admits include their respective successors in title and
where a party comprises more than one person covenants and obligations
of that party take effect as joint and several covenants and
obligations
(3) A covenant by the Tenant not to do (or omit) any act or thing also
operates as a covenant to use reasonable endeavours not to permit or
suffer it to be done (or omitted) and to prevent (or as the case may
be to require) it being done
(4) References in this lease to:-
(a) any clause sub-clause schedule or paragraph is a reference to the
relevant clause sub-clause schedule or paragraph of this lease and
clause and schedule headings shall not affect the construction of
this lease
(b) any right of (or covenant to permit) the Landlord to enter the
Premises shall also be construed (subject always to the proviso to
clause 4(9)) as entitling the Landlord to remain on the Premises
with or without equipment and permitting such right to be
exercised by all persons authorised by the Landlord for as short a
period as reasonably practicable and making good all damage caused
and causing as little inconvenience as reasonably possible save
where the right of entry is exercised to remedy any breach
hereunder (where the Landlord only undertakes to make good damage
caused)
(c) any consent licence or approval of the Landlord or words to
similar effect mean a consent licence or other approval in writing
signed by or on behalf of the Landlord and given before the act
requiring consent licence or approval
(d) the Premises (except in clause 4(15)) shall be construed as
extending where the context permits to any part of the Premises
(e) a specific Enactment includes every statutory modification
consolidation and re-enactment and statutory extension of it for
the time being in force except in relation to the Town and Country
Planning (Use Classes) Order 1987 which shall be interpreted
exclusively by reference to the original provisions of Statutory
Instrument 1987 No 764 whether or not the same may at any time
have been revoked or modified
(f) the last year of the Term includes the final year of the Term if
it shall determine otherwise than by effluxion of time and
references to the expiry of the Term include such other
determination
6
[GRAPHIC OMITTED]
[FLOOR PLAN]
GMW
99 BISHOPSGATE EC2
TWELFTH FLOOR TOWER
[BISHOPSGATE LONDON MAP]
99 BISHOPSGATE LONDON, EC2
NORTH
(5) (a) Where the context permits rents or other sums being due from the
Tenant to the Landlord or the Management Company mean that they
are exclusive of any VAT
(b) whenever the consent licence or approval of the Landlord is
required under this lease the relevant provision shall be
construed as also requiring (and any consent licence or approval
given by the Landlord shall be deemed subject to the need for) the
consent licence or approval of the Superior Landlord (for which
the Landlord shall apply at the Tenant's cost) where the same is
required under the Head Lease except that nothing in this lease or
in any consent licence or approval by the Landlord shall imply
that the Superior Landlord's consent licence or approval will not
be unreasonably withheld or delayed
(c) references to any right of (or covenant to permit) the Landlord to
enter the Premises shall extend to the Superior Landlord and to
all persons authorised by it and shall be construed in the manner
required by clause 2(4)(b) but in relation to the Superior
Landlord and those with its authority
(d) the rights excepted and reserved in schedule 3 are also excepted
and reserved for the benefit of the Superior Landlord
3. DEMISE AND RENTS
The Landlord DEMISES unto the Tenant ALL THAT the Premises TOGETHER WITH
the easements and rights specified in schedule 2 exercisable in common
with the Landlord and all others with its authority or otherwise from time
to time entitled thereto EXCEPT and RESERVED unto the Landlord and all
other persons authorised by it from time to time during the term or
otherwise from time to time entitled thereto (including the Management
Company in relation to the provision of the Services) the easements and
rights specified in schedule 3
TO HOLD the Premises unto the Tenant (together with and except and
reserved as aforesaid) for the term SUBJECT to all rights easements
covenants stipulations and other matters affecting the same and SUBJECT to
the provisions of the deeds and documents mentioned in schedule 6
YIELDING AND PAYING therefor:
FIRST yearly and proportionately for any part of a year a peppercorn (if
demanded)
SECONDLY as additional rent from time to time the Insurance Rent payable
on demand
THIRDLY as additional rent on demand (in addition and without prejudice to
the Landlord's right of re-entry and any other right) interest at the
Interest Rate on any sum owed by the Tenant to the Landlord whether as
rent or otherwise which is not:
(a) received in cleared funds by the Landlord within 10 days following the
due date (or in the case of money due only on demand within 14 days
after the date of demand) calculated for the period commencing on the
due date for payment
7
and ending on the date the sum and the interest is received in cleared
funds by the Landlord
(b) demanded (or if tendered is for the time being refused) by the
Landlord in circumstances where it is prudent for it not to demand or
accept any payment having regard to a breach of any of the tenant's
obligations under this lease calculated for the period commencing on
the due date for payment and ending on the date the sum (and the
interest) is subsequently received by the Landlord
FOURTHLY as additional rent all VAT for which the Landlord is or may
become liable to account to H.M. Customs & Excise (or other relevant body
to whom account has for the time being to be made) on the supply by the
Landlord to the tenant under or in connection with the provisions of this
lease or the interest created by it and of any other supplies whether of
goods or services such rent fourthly reserved to be due for payment
contemporaneously with the other rents or sums to which it relates
AND FIFTHLY a rent equal to the Electricity Cost such rent to be payable
on demand (either annually or by instalments) as the Landlord shall
determine
4. TENANT'S COVENANTS
The Tenant covenants with the Landlord (and in respect of sub-clause 4(30)
also with the Management Company) throughout the Term and any period of
holding over or extension whether by any Enactment or common law subject
to clause 4(15):
RENT
(1) To pay the rents reserved by this lease on the days and in the
manner set out in clause 3 without deduction or set off
VAT
(2) Wherever the Tenant is required to pay any amount to the Landlord
hereunder by way of reimbursement or indemnity to pay to the Landlord
(as applicable) in addition an amount equivalent to any VAT incurred
by the Landlord save to the extent that the Landlord obtains credit
for such VAT incurred by the Landlord pursuant to sections 24 25 and
26 Value Added Tax Act 1994 or any regulations made thereunder
OUTGOINGS
(3) To pay all rates taxes charges and other outgoings whatsoever now or
hereafter assessed charged or imposed upon the Premises or upon their
owner or occupier (and a proper proportion determined by the Landlord
attributable to the Premises of any rates taxes charges and other
outgoings now or hereafter assessed charged or imposed upon the
Premises in common with other premises or upon the owners or occupiers
thereof) and (to the extent the Tenant does not pay it directly to the
relevant supplier) the total cost (including meter rents) of all water
(including chilled water) electricity and gas separately metered
and/or exclusively supplied to the Premises during the Term as
reasonably determined by the Landlord save in the case of manifest
error excluding (without prejudice to the rent fourthly reserved and
clause 4(2)) any
8
tax payable by the Landlord as a direct result of any actual or
implied dealing with the reversion of this lease or of the Landlord's
receipt of income
COMPLIANCE WITH ENACTMENTS
(4) To comply with the requirements of all Enactments and of every Public
Authority (including the due and proper execution of any works) in
respect of the Premises their use occupation employment of personnel
in them and any work being carried out to them (whether the
requirements are imposed upon the owner lessee or occupier) and not to
do or omit anything by which the Landlord may become liable to make
any payment or do anything under any Enactment or requirement of a
Public Authority
NOTICES
(5) As soon as reasonably practicable and in any event within 5 working
days of receipt of the same to give to the Landlord notice of (and a
certified copy of) any notice permission direction requisition order
or proposal made by any Public Authority and without delay to comply
in all respects at the Tenant's cost with the provisions thereof save
that the Tenant shall if so required by and at the cost of the
Landlord make or join in making such objections or representations in
respect of any of them as the Landlord may reasonably require
REPAIR
(6) To keep the Premises in the same state of repair and condition (damage
by any of the Insured Risks excepted to the extent that the insurance
money shall not have been rendered irrecoverable or insufficient
because of some act or default of the tenant or of any person deriving
title under or through it or their respective servants or agents or
invitees) as exists at the date hereof
DECORATION AND GENERAL CONDITION AND SERVICING
(7) To keep the Premises maintained to the same standard of decorative
order and finish and properly cleansed and tidy as exists at the date
hereof
REFUSE
(8) Not to deposit any refuse on any of the Common Parts except in areas
designated for such purpose from time to time by the Landlord and to
comply with all requirements of any Public Authority and any
reasonable regulations made by the Landlord pursuant to clause 4(26)
in relation to control over and disposal of rubbish
TO PERMIT ENTRY
(9) To permit the Landlord (and persons authorised by the Landlord) at
reasonable times on reasonable prior written notice (except in an
emergency) to enter the Premises in order to:-
(a) examine their state of repair
9
(b) ascertain that the covenants and conditions of this lease have
been observed
(c) take any measurement or valuation of the Premises
(d) rebuild renew cleanse alter test maintain repair inspect and
make connections to any part of the Building including the
Service Media
(e) during the last ten months of the Term (or at any time in the
case of a disposal of the Landlord's interest) to show the
Premises to prospective purchasers or tenants and their agents
(f) exercise the rights described in schedule 3
PROVIDED ALWAYS THAT the Landlord shall cause as little inconvenience as
reasonably possible for the purposes described in clause 4(9)(d) (save
where in order to comply with any obligation to the Tenant and without
prejudice to any rights of entry for any other purpose) and shall make
good any damage caused
COMPLIANCE WITH NOTICES RELATING TO REPAIR OR CONDITION
(10) (a) To comply with any notice requiring the Tenant to remedy any
breach of its covenants
(b) If the Tenant shall not within a reasonable time comply with
any such notice to permit the Landlord and any authorised
person to enter the Premises to remedy the breach as the
Tenant's agent and at the Tenant's reasonable cost
(c) To pay to the Landlord on demand all the reasonable costs and
expenses properly incurred by the Landlord under the
provisions of this sub-clause
ENCROACHMENTS
(11) (a) To preserve all rights of light and other easements belonging
to the Premises and not to give any acknowledgement that they
are enjoyed by consent
(b) Not to do or omit anything which might subject the Premises to
the creation of any new easement and to give notice to the
Landlord forthwith of any encroachment which might have that
effect
ALTERATIONS AND REINSTATEMENT
(12) (a) Not to carry out any Development of or on the Premises nor
(without prejudice to the exclusion of structural parts from
the demise of the Premises) any works affecting any structural
parts of the Building and not to commit any waste
(b) Without prejudice to any other rights of the Landlord in
respect of areas not included in the Premises not to install
or erect any exterior
10
lighting shade or awning or place any structure or other thing
outside the Premises
(c) Without prejudice to paragraphs (a) and (b) of this sub-clause
and subject to the provisos to this paragraph (c) not to make
any other alteration or addition to the Premises (including
all electrical and other plant and equipment and the
installation and removal of demountable partitioning) except:-
(i) in accordance with plans and specifications (adequately
describing the work in question and the manner in which
the work will be carried out) previously submitted at the
Tenant's expense in triplicate to and approved by the
Landlord (such approval not to be unreasonably withheld)
(ii) in a manner which shall not adversely affect the
Landlord's Services Equipment any Service Media or the
provision of any of the Services
(iii) in accordance with any relevant terms conditions
recommendations and regulations of any Public Authority
(and in particular in relation to any electrical
installation in accordance with the terms and conditions
laid down by the Institution of Electrical Engineers and
the Regulations of the Electricity Supply Authority) and
the insurance company with whom the Premises are for the
time being insured and
(iv) in a good and workmanlike manner
PROVIDED ALWAYS THAT:-
(I) no such alterations or additions shall be carried out
until the Landlord has issued its consent in writing to
which the Tenant shall if required join as a party in the
form annexed to this lease with such amendments or
additions as the Landlord may reasonably require (such
consent subject to compliance with the other conditions
of this sub-clause not to be unreasonably withheld or
delayed)
(II) any approved alteration or addition affecting the Service
Media or the provision of any of the Services shall if
the Landlord so requires be carried out by the Landlord
as agent for the Tenant and all costs incurred in so
doing shall be repayable by the Tenant on demand
(III) once any such alterations or additions have been carried
out the Tenant shall supply to the Landlord as-built
plans in triplicate (together with a computer aided
design disk and 35 mm slides) showing the works as
carried out
11
USE
(13) Not to use the Premises or any chattels in them:-
(a) for any purpose (and not to do anything in or to the Premises)
which may be or become or cause a nuisance disturbance
annoyance obstruction or damage to any person or property
(b) for a sale by auction or for any public meeting or for any
dangerous noxious noisy illegal offensive or immoral trade
business or activity or for residential purposes and not to
use the Common Parts for the transaction of any business or
(c) (without prejudice to the preceding paragraphs of this
sub-clause) except for the Permitted Use
SIGNS
(14) (a) Not to erect any aerial satellite dish sign signboard pole
antenna wire or other apparatus on the outside of the Building
(b) Not to affix or exhibit so as to be visible from outside the
Premises any placard sign notice fascia board or advertisement
except the approved signs referred to in paragraph 3 of
schedule 2
ALIENATION
(15) (a) Not to assign mortgage charge or underlet or in any other
manner part with possession of the whole or any part of the
Premises save that the Tenant may share the Premises or part
thereof in accordance with sub-clause 4(15)(b) below
(b) Not to part with or share the occupation of the Premises or
any part of them except that the Tenant may share occupation
with a company which is (but only for so long as it remains)
either the holding company of the Tenant or a majority-owned
subsidiary of the Tenant or of the Tenant's holding company
(as those expressions are defined in section 736 Companies Act
1985) so long as the Tenant does not grant the person sharing
occupation exclusive possession (so that such company occupies
as licensee only without creating any relationship of landlord
and tenant) nor otherwise transfer or create a legal estate
and the Tenant shall notify the Landlord of the identity of
each company in occupation
PAYMENT OF COST OF NOTICES CONSENTS ETC.
(16) To pay on demand all reasonable expenses (including counsels'
solicitors' and bailiffs' surveyors' fees) properly incurred by the
Landlord in and incidental to:
(a) the preparation and service of a notice under section 146 Law
of Property Act 1925 or in contemplation of any proceedings
under section 146 or 147 of that Act notwithstanding that
forfeiture is avoided otherwise than by relief granted by the
court and
12
(b) every step taken during or after the expiry of the Term in
connection with the enforcement of the Tenant's obligations
under this lease including the service or proposed service of
all notices and schedules of dilapidations and
(c) every application for consent license or approval under this
lease even if the application is withdrawn or properly refused
OBSTRUCTION/OVERLOADING
(17) Not to obstruct:-
(a) or damage any part of the Building or exercise any of the
rights granted by this lease in a way which causes nuisance
damage or annoyance
(b) any means of escape
(c) or discharge any deleterious matter into
(i) any pipe drain or other conduit serving the Premises and
(to the extent they lie within the Premises) to keep them
clear and functioning properly or
(ii) any Service Media
(d) or stop-up or darken the windows and other openings of the
Premises
nor to overload or cause undue strain to the Service Media or any other
part of the Building and in particular not to suspend any undue weight
from the ceilings or walls of the Premises and not to exceed the
following floor loadings:-
floor finishings : 4 kN/m2 (80lbs per sq.ft)
live load : 1kN/m2 (20lbs per sq.ft)
(e) any requisite notice erected on the Premises including any
erected by the Landlord in accordance with its powers under
this lease
PARKING/GOODS DELIVERY
(18) To ensure that all loading unloading deliveries and despatch of
goods is carried out only by using the service accesses and goods
lifts designated by the Landlord for the use of the Premises
PLANNING LAW AND COMPENSATION
(19) Without prejudice to clause 4(4) at all times during the Term to
comply with the provisions and requirements of Planning Law
relating to or affecting
(a) (i) the Premises
(ii) any operations works acts or things carried out executed
done or omitted on the Premises
13
(iii) the use of the Premises
(iv) the use by the Tenant of (and the exercise of any other
rights hereunder in respect of) any other parts of the
building
(b) Not to apply for any planning permission relating to the Premises
INDEMNITY
(20) To indemnify the Landlord against all expenses proceedings costs
claims damages demands and any other liability or consequence arising
out or in respect of any breach of any of the Tenant's obligations
under this lease (including all costs reasonably incurred by the
Landlord in an attempt to mitigate any such breach) or of any act
omission or negligence of the Tenant or any person at the Premises
expressly or impliedly with the Tenant's authority
DEFECTIVE PREMISES
(21) Upon becoming aware of the same or when the Tenant ought reasonably to
have become aware of the same to give notice forthwith to the Landlord
of any defect in the Premises which might give rise to:-
(a) an obligation on the Landlord to do or refrain from doing
anything in relation to the Premises or
(b) any duty of care or the need to discharge such duty imposed by
the Defective Premises Act 1972 or otherwise
and at all times to display and maintain all notices which the
Landlord may from time to time reasonably require to be displayed at
the Premises in relation to their state of repair and condition
INSURANCE AND FIRE FIGHTING EQUIPMENT
(22) (a) Not to do or omit anything by which any insurance policy
(relevant extracts of which shall have been provided to the
Tenant) relating to the Building or any part of it becomes void
or voidable or by which the rate of premium on such policy may be
increased
(b) To comply with all requirements and recommendations of the
insurers and to provide and maintain unobstructed appropriate
operational fire fighting equipment and fire notices on the
Premises
(c) to notify the Landlord forthwith of:-
(i) any incidence of any Insured Risk on the Premises and of any
other event which ought reasonably to be brought to the
attention of insurers
(ii) the insurable value of any fixture installed in the Premises
by the Tenant or any person claiming under or through the
Tenant
(d) That it has prior to the execution of this lease disclosed to the
Landlord in writing any matter known to the Tenant which might
affect the
14
decision of any insurance underwriter to underwrite any of the
Insured Risks and that it will disclose particulars of any such
matter to the Landlord in writing forthwith on becoming aware of
it
(e) That if at any time the Tenant or any person claiming under or
through it shall be entitled to the benefit of any insurance of
the Premises to cause all money paid under such insurance to be
applied in making good the loss or damage in respect of which it
was paid
(f) If the whole or any part of the Building is damaged or destroyed
by any of the Insured Risks at any time during the Term and the
insurance money under any insurance policy effected by the
Landlord is rendered wholly or partially irrecoverable because of
some act or default of the Tenant or any person deriving title
under or through the Tenant or their respective servants agents
or invitees forthwith to pay the Landlord the whole amount of the
insurance money so irrecoverable
DANGEROUS AND CONTAMINATIVE MATERIALS
(23) Not to keep place store or use or permit or suffer to be kept placed
stored or used in or upon or about the Premises any materials
substance or other thing of a dangerous inflammable combustible
explosive corrosive or offensive nature or any materials substance or
other thing which may in any way cause pollution injury or harm by
percolation corrosion contamination migration release or otherwise on
beneath or in the vicinity of the Premises
YIELD UP
(24) (a) (Subject to Clause 8) at the expiry of the Term to remove all
chattels and (to the extent the Landlord may require) tenant's
fixtures and quietly to yield up the Premises reinstated and in
the state of repair condition decorative order and layout
otherwise required by this lease and any licenses or consents
issued in pursuance of it and to make good any damage so caused
in a proper and workmanlike manner to the Landlord's reasonable
satisfaction
(b) The Tenant irrevocably authorises the Landlord to remove and
dispose of any chattels which may be left in the Premises within
28 days after the Tenant has quit them (without being obliged to
obtain any consideration for the disposal) and the Tenant
irrevocably declares that any such chattels will stand abandoned
by it
REGULATIONS AND COVENANTS
(25) To comply with:-
(i) all regulations reasonably made by the Landlord from time to time
and notified to the Tenant in writing for the good management of
the Building PROVIDED ALWAYS THAT no such regulations shall
purport to amend the terms expressed in this lease and if there
is any inconsistency between the terms of this lease and the
regulations the terms of this lease shall prevail
15
(ii) all covenants stipulations and other matters affecting the
Premises and not to interfere with any rights easements or other
matters affecting the Premises
SECURITY AND ACCESS
(26) To use all reasonable endeavours to ensure that the Tenant's visitors
to the Premises observe such security regulations which may apply to
them
SERVICE CHARGE
(27) To pay the Service Charge (and VAT thereon) to the Management Company
at the times and in the manner provided for in clause 6 and schedule 4
and to pay the Outside Normal Business Hours Charge within 10 days of
demand (either annually or monthly by installments) as the Management
Company shall reasonably determine
5. LANDLORD'S COVENANTS
The Landlord covenants with the Tenant:
QUIET ENJOYMENT
(1) That if the Tenant observes and performs its covenants contained in
this lease the Tenant may peaceably hold and enjoy the Premises
without any lawful interruption by the Landlord or any person
rightfully claiming through under or in trust for it
INSURANCE
(2) (a) To keep the Building (except all tenants' plant and equipment and
trade fixtures) insured against the Insured Risks in such sum as
in the Landlord's opinion represents its then full current
replacement cost (but not necessarily the facsimile reinstatement
cost)
(b) On request to supply the Tenant (but not more frequently than
once in any period of twelve months) with evidence of such
insurance
(c) If and whenever during the Term the Premises (except as
aforesaid) is damaged or destroyed by an Insured Risk either
party may determine this lease on not less than ten working days
prior written notice and on expiry of such notice this lease
shall determine but without prejudice to any antecedent breach of
covenant
HEAD LEASE
(3) (a) To pay the rents reserved by the Head Lease and to perform so far
as the Tenant is not liable for such performance under the terms
of this lease but so far only as to preserve the existence of
this lease the covenants and conditions on the part of the lessee
contained in the Head Lease
16
(b) On the request and at the expense of the Tenant to take all
reasonable steps to enforce the covenants on the part of the
Superior Landlord contained in the Head Lease
(c) To take all reasonable steps at the Tenant's expense to obtain
the consent of the Superior Landlord wherever the Tenant makes
application for any consent required under this lease where the
consent of both the Landlord and the Superior Landlord is needed
by virtue of this lease and the Head Lease
ELECTRICITY PROVISION
(4) Subject to clause 7(3) to use all reasonable endeavours to provide or
procure the provision of electricity to the Premises to the extent
necessary to meet the requirements of the Tenant having regard to the
overall electricity services design standards for the Building as a
whole and to all relevant statutory provisions from time to time
regulating the supply and utilisation of electricity and the terms and
conditions relative thereto from time to time imposed by the
electricity provider chosen by the Landlord
MANAGEMENT COMPANY ACCESS
(5) To allow the Management Company such rights over the Building as it
requires from time to time for the due and proper provision of the
Services
6. PROVISION OF SERVICES
The Management Company covenants with the Tenant to use all reasonable
endeavours:-
(1) Well and substantially to repair and properly clean and decorate the
structure of the Building (including the structure of the roofs
foundations external and internal walls and columns and structural
slabs of the ceilings and floors) the external surfaces of the
Building (including the whole of the glazing within the external walls
of the Building) and the Common Parts and (where consistent with an
obligation to repair or otherwise where reasonably necessary) to
replace the same
(2) To keep the Service Media designed for common or general use and the
Landlord's Services Equipment in good and substantial repair and in
clean condition and at all times in good and safe working order
(3) To keep the lifts in the Building clean and in good and substantial
repair and condition and at all times in good and safe working order
(4) To provide heating or cooling (as appropriate) to the Premises for
such hours as the Tenant shall require (subject to the Tenant paying
the Outside Normal Business Hours Charge in relation to provision
outside Normal Business Hours)
(5) To ensure that the Common Parts are at all times kept clean tidy and
unobstructed
17
(6) Subject to clause 7(3) and clause 7(6) to provide or procure the
provision of electricity to the Premises and each and every part
thereof designed to receive the same to the extent necessary to meet
the reasonable requirements of the Tenant and other lawful occupiers of
the Premises
(7) To comply with the requirements of any statute (already or in the
future to be passed) or any government department local authority other
public or competent authority or court of competent jurisdiction
relating to the Building or any part for which any tenant or occupier
of the Building is not directly or exclusively liable
(8) To ensure that at all times there are such security officers at and
patrolling the Building as is reasonably appropriate for premises of
the same size and nature as the Building
(9) To provide or procure the provision of: --
(a) the Services during Normal Business Hours; and
(b) such of the Services outside Normal Business Hours as in the
Management Company's reasonable discretion are appropriate to
provide a high class office building in the City of London outside
Normal Business Hours; and
(c) such of the Services outside Normal Business Hours as the Tenant
shall previously request (but subject to the Tenant being
responsible for the Outside Normal Business Hours Charge)
(having regard in all cases to and in accordance with the overall
design standards for the Building as a whole and subject to the
limitations contained in Clause 7(6)) in an efficient and economic
manner and in accordance with good estate management provided that the
Management Company shall be entitled to employ such managing agents
professional advisers contractors and other persons as it shall from
time to time reasonably think fit for the purpose of the performance of
the Services
PROVIDED THAT the Management Company shall not be liable for:--
(without prejudice to the provisions of clause 7(3)) any closure of any of
the Common Parts or interruption in the provision of the Services or
stoppage or severance affecting any of the Service Media or any interruption
to the supply of electricity to the Premises or the Common Parts or
temporary closure or diversion of any of the Common Parts or Service Media
by reason of necessary inspection repair maintenance or replacement thereof
or any part thereof or any plant machinery equipment installations or
apparatus used in connection therewith or damage thereto or destruction
thereof by any risk (whether or not an Insured Risk) or by reason of
electrical mechanical or other defect or breakdown or frost or other
inclement conditions or shortage of fuel materials supplies or labour or
whole or partial failure or stoppage of any mains supply due to any
circumstances beyond the control of the Management Company PROVIDED ALWAYS
that the Management Company shall use all reasonable endeavours to minimise
the adverse effects of any such
18
circumstances and to remedy any such interruption closure or diversion as
soon as reasonably practicable
7. PROVIDED ALWAYS AND IT IS HEREBY AGREED AND DECLARED THAT:--
FORFEITURE AND RE-ENTRY
(1) Without prejudice to any other remedies and powers contained in this
lease or otherwise available to the Landlord if
(a) the whole part of the rents shall be unpaid for twenty-one days
after becoming payable (whether or not formally demanded) or
(b) any of the Tenant's covenants in this lease are not performed or
observed in the manner and at the times herein specified
the Landlord may at any time thereafter (and notwithstanding the waiver
of any previous right of re-entry) re-enter the Premises without
prejudice to the Tenant's right to relief against forfeiture whereupon
this lease shall absolutely determine but without prejudice to either
party's right of action against the other in respect of any antecedent
breach of the covenants in this lease
LETTING SCHEME USE AND EASEMENTS
(2) No letting or building scheme exists or shall be created in relation to
the Building and (subject only to those easements expressly granted by
this lease) neither the Tenant nor the Premises shall be entitled to
any easement or quasi-easement whatsoever and nothing herein contained
or implied shall give the Tenant the benefit of or the right to enforce
or to have enforced or to prevent the release or modification of any
right easement covenant condition or stipulation enjoyed or entered
into by any tenant of the Landlord in respect of property not demised
by this lease or prevent or restrict the development or use of the
remainder of the Building or any other land
COMMON PARTS AND SERVICE MEDIA
(3) Subject always to the rights of the local authority the relevant supply
authorities and any other competent authority the Common Parts and the
Service Media are at all times subject to the exclusive control and
management of the Landlord who may from time to time (if it shall be
necessary or reasonable to do so for the benefit of the Building or
otherwise in keeping with the principles of good estate management)
alter divert substitute stop up or remove any of them (leaving
available for use by the Tenant reasonable and sufficient means of
access to and egress from and servicing for the Premises)
SERVICE OF NOTICES
(4) (a) In addition to any other mode of service any notices to be served
under this lease shall be validly served if served in accordance
with section 196 Law of Property Act 1925 as amended by the
Recorded Delivery
19
Service Act 1962 or (in the case of any notice to be served on the
Tenant) by sending it to the Tenant at the Premises
(b) If the Tenant or any guarantor comprises more than one person it
shall be sufficient for all purposes if notice is served on one of
them but a notice duly served on the Tenant will not need to be
served on any guarantor
LANDLORD'S LIABILITY
(5) The Landlord shall not be liable for (without prejudice to the
provisions of clause 7(3)) any closure of any of the Common Parts or
stoppage or severance affecting any of the Service Media or any
interruption to the supply of electricity to the Premises or temporary
closure or diversion of any of the Common Parts or Service Media by
reason of necessary inspection repair maintenance or replacement
thereof of any part thereof or any plant machinery equipment
installations or apparatus used in connection therewith or damage
thereto or destruction thereof by any risk (whether or not an Insured
Risk) or by reason of electrical mechannical or other defect or
breakdown or frost or other inclement conditions or shortage of fuel
materials supplies or labour or whole or partial failure or stoppage of
any mains supply due to any circumstances beyond the control of the
Landlord PROVIDED ALWAYS that the Landlord shall use all reasonable
endeavours to minimise the adverse effects of any such circumstances
and to remedy any such interruption closure or diversion as soon as
reasonably practicable
NO WARRANTY AS TO USE
(6) Nothing contained in this lease shall constitute or be deemed to
constitute a warranty by the Landlord that the Premises are authorised
under Planning Law to be used or are otherwise fit for any specific
purpose
RATEABLE VALUE APPEALS
(7) (a) If the Landlord or the Tenant intends to make a proposal to alter
the entry for the Premises in the local non-domestic rating list it
shall notify the other party of its intention and shall incorporate
in the proposal such proper and reasonable representations as may
be made by or on behalf of that party
(b) Not to agree any assessment of the rates liability attributable to
the Premises without the approval of the Landlord (such approval
not to be unreasonably withheld or delayed)
NO WARRANTY AS TO SECURITY
(8) Nothing contained in this lease (and no exercise of any of the
Landlord's powers under this lease) shall constitute or be deemed to
constitute a warranty by the Landlord that the Premises shall be kept
secure or that any security service to the Common Parts shall be
effective
20
JURISDICTION
(9) This lease shall be governed by and construed in all respects in
accordance with the law of England and for the benefit of the Landlord
the English courts shall have exclusive jurisdiction in relation to any
disputes arising under or connected with this lease and the Tenant
agrees that any process may be served on it by leaving a copy of the
relevant document at the Premises provided however that the Landlord
shall retain the right at its sole election to sue the Tenant elsewhere
including in the courts of the Tenant's domicile
EXCLUSION OF LANDLORD AND TENANT ACT 1954
(10) Having been authorised to do so by an Order of the Shoreditch County
Court dated 10th October 1996 the parties agree that the security of
tenure provisions in sections 24 to 28 of the Landlord and Tenant Act
1954 (as amended) shall be excluded in relation to this lease
8. OPTIONS TO DETERMINE
(1) The Landlord may determine this lease on not less than 3 months'
written notice if the Tenant has not entered into a binding commitment
to take leases of the 22nd to 26th floors of the Building by 25th
October 1996;
(2) In the event of the Landlord exercising its option pursuant to clause
8(1) above the following provisions shall apply:
(a) the Tenant shall at its own cost reinstate the Premises by expiry
of the Landlord's notice to the Reinstatement Specification;
(b) for the period from 25th October 1996 until expiry of the
Landlord's notice the Tenant shall pay rent to the Landlord at the
rate of pounds sterling 30 (exclusive of VAT) per square foot of
Net Internal Area of the Premises
(3) The Tenant may determine this lease at any time after 24th June 1997 on
not less than one month's prior written notice to the Landlord such
notice expiring at any time after 24th June 1997
(4) If the Landlord or the Tenant duly serves a notice under this clause
the Tenant shall procure that vacant possession of the Premises will be
available on expiry of the relevant notice free of occupation by and of
any estate or interest vested in the Tenant or any third party
9. LANDLORD'S GUARANTOR
(1) The Landlord's Guarantor at the request of the Landlord and in
consideration of the Tenant agreeing to take this lease covenants and
agrees with the Tenant that all of the Landlord's obligations contained
in this lease will be performed and observed in the manner and at the
times herein specified and that if there is default in performing and
observing any of the Landlord's obligations (notwithstanding any time
or indulgence by the Tenant to the Landlord or compromise, neglect or
forebearance on the part of the Tenant in enforcing the
21
observance of the Landlord's obligations in this lease) the Landlord's
Guarantor will observe and perform (or procure the performance and
observance of) the obligations in respect of which the Landlord shall
be in default
(2) The Landlord's Guarantor at the request of the Management Company and
in consideration of the Tenant agreeing to pay the Service Charge
covenants and agrees with the Tenant that all of the Management
Company's obligations contained in this lease will be performed and
observed in the manner and at all times herein specified and that if
there is default in performing and observing any of the Management
Company's obligations (notwithstanding any time or indulgence granted
by the Tenant to the Management Company or compromise, neglect or
forbearance on the part of the Tenant in enforcing the observance of
the Management Company's obligations in this lease) the Landlord's
Guarantor will observe and perform (or procure the performance and
observance of) the obligations in respect of which the Management
Company shall be in default
10. STAMP DUTY CERTIFICATE
It is hereby certified that there is no agreement for lease to which this
lease gives effect
IN WITNESS whereof this Deed has been executed by the parties hereto and is
intended to be and is hereby delivered on the date first above written
22
SCHEDULE 1
(THE PREMISES)
ALL THOSE office premises situate on the part 12th floor and being part of the
Building which are shown on the Plan and thereon verged red for identification
purposes only ALL which premises include:-
(a) the plaster linings and other interior coverings and facing materials of
all walls and of any columns within or bounding the said premises
(b) the screed the raised floor the fixed and unfixed floor coverings and all
materials lying between the upper surface of the structural floor slab and
the raised floor surface
(c) the ceilings including all materials forming part of them lying and the
void space (if any) above such ceilings but below the lower surface of the
structural ceiling slab
(d) all non-load bearing walls lying within the said premises
(e) all plant and other apparatus and conducting media which are designed to
serve the said premises exclusively including any which the Landlord may
permit under clause 4(14) and whose operation does not have any impact on
the central building systems
(f) the following items supplied and fitted by the Landlord:-
(i) venetian horizontal perforated blinds on the inside of the external
windows of the Premises
(ii) electricity check meter
(iii) high quality carpet tiles from Milliken
but exclude:-
(i) all Service Media and Landlord's Services Equipment and
(ii) the load bearing structure of the Building including the load bearing
structure of the roofs foundations external and internal walls and
columns and the structural slabs of the ceilings and floors and
(iii) the external surfaces of the Building and the whole of the window glazing
and window frames and other fenestration units constructed in the
external walls and in the other boundaries of the said premises
SCHEDULE 2
(EASEMENTS AND RIGHTS GRANTED)
1. The right in connection with the Permitted Use subject to the provisions of
clause 7(3) and subject to compliance with all reasonable rules and
regulations in connection with the exercise of such right as may be
prescribed from time to time by the Landlord:-
(1) for the Tenant its servants and duly authorised agents invitees and
visitors for the purpose only of ingress and egress to and from the
Premises to use the
23
Common Parts and to use all means of escape but only when needed in an
emergency and
(2) to use the Service Media
(3) to use such lavatories in the Building as the Landlord shall from time
to time designate
2. The right of support shelter and protection for the Premises from any
adjoining or neighbouring parts of the Building as enjoyed by the Premises
at the date of this lease
3. The right to have displayed the name of the Tenant on the signboard in the
entrance lobby of the Building provided by the Landlord pursuant to
paragraph 14 of Part I of schedule 6 and the right to install a sign
displaying the name of the Tenant at the entrance to the Premises the
precise location size and style of such sign to be subject to the approval
of the Landlord (such approval not to be unreasonably withheld)
SCHEDULE 3
(EXCEPTIONS AND RESERVATIONS)
1. The right to build alter or extend (whether vertically or laterally) any
building notwithstanding that the access of light and air or either of them
to the Premises and the lights windows and openings thereof may be affected
2. The right at reasonable times on reasonable prior notice (except in an
emergency where no notice need be given) to enter upon the Premises as often
as may be necessary for the purpose of complying with the covenants of the
Head Lease for all the purposes for which the Tenant covenants in this lease
to permit entry and for all purposes in connection with the carrying out of
the Services and for the purposes of complying with any statutory
requirements
3. The right to use and to construct inspect maintain repair divert and
otherwise alter stop up and relay and to make connections to any Service
Media in on or under the Premises at any time during the Term for the
benefit of any other part of the Building or any adjacent or neighbouring
land
4. The right to erect and maintain scaffolding on or against any part of the
Building so long as reasonable and sufficient means of access to and
egress from and servicing the Premises are maintained
5. All rights of light air and other easements and rights (but without
prejudice to those expressly granted by this lease) enjoyed by the Premises
from or over any other part or parts of the Building or any adjacent or
neighbouring land
6. The right of support protection and shelter for the benefit of other parts
of the Building from the Premises
7. The right for one or more members of any security staff employed by the
Landlord or its agents at any time or times on reasonable prior notice (save
in the case of emergency where no notice is required) to enter the Premises
if it shall be considered necessary or desirable so to do in connecting with
the security of the Building
24
8. The right for the tenant or occupier of any other part of the Building
authorised by the Landlord having first given reasonable written notice to
the Tenant at reasonable times in the daytime and at any time and without
notice in case of emergency to enter the Premises for the purpose of
repairing that other part of the Building making good any damage so caused
to the reasonable satisfaction of the Tenant
9. The rights reserved to the Superior Landlord (by covenant or by express
reservation) in the Head Lease
PROVIDED ALWAYS THAT if the Landlord exercises any of the rights by carrying
out work on the Premises it shall cause as little inconvenience as possible as
soon as reasonably practicable make good any damaged caused to them unless the
right has been exercised because of some breach by the Tenant or by any person
claiming through it
SCHEDULE 4
(THE SERVICE CHARGE)
1. In this Schedule:
"ACCOUNTING PERIOD" the period from and including 1st January to and
including 31st December in any year or such other period of twelve months as
the Management Company shall reasonably determine from time to time
"EXPERT" means a chartered surveyor experienced in the administration and
apportionment of service charges for buildings similar to the Building as
agreed upon by the Management Company and the Tenant or on failure to agree
appointed at the request of either party by the President Provided that
where an Expert has previously been agreed or appointed in relation to any
matter in connection with the Service Cost or the allocation of the Service
Cost between the tenants of the Building (whether or not pursuant to the
terms of this Underlease) the Management Company or the Tenant shall be
entitled if reasonable to require that the same Expert be appointed
"INTERIM SUM" means a yearly sum assessed by the Management Company acting
reasonably on account of the Service Charge for each Accounting Period being
a fair and reasonable estimate of the Service Charge payable by the Tenant
in respect of that Accounting Period
"RESERVE" means the total of the amounts received by the Management company
in respect of the matters referred to in paragraph 2(B) of this schedule
"SERVICE CHARGE" means the proportion of the Service Cost attributable to
the Premises determined in accordance with the provisions of this schedule
payable from this date hereof
"SERVICE CHARGE CERTIFICATE" means a certificate showing the Service Cost
and Service Charge for each Accounting Period served pursuant to paragraph 5
of this schedule and prepared by the Management Company's surveyor or
auditor
"SERVICE COSTS" means the total sum calculated in accordance with paragraph
2 of this schedule
25
2. The Service Cost shall be the reasonable cost properly incurred by the
Management Company in any Accounting Period in carrying out or procuring the
carrying out of the Services and providing each item of the Services
including (without prejudice to the generality of the foregoing) the costs
and expenses set out in Part II of schedule 5 (insofar as the same are
reasonable and properly incurred) and any other reasonable costs and
expenses properly incurred by the Management Company or with the Management
Company's authority in connection with the Services but excluding for the
avoidance of doubt
(i) any costs attributable to the provision of any of the Services
outside Normal Business Hours at the specific request of the Tenant
(which shall be charged direct to the Tenant) or of any other
tenant or tenants of the Building and
(ii) any Value Added Tax which the Management Company may incur of and
incidental to the provision of the Services and which is
recoverable as input tax by the Management Company
(iii) any cost or expense incurred in making good any damage caused by
any of the Insured Risks
3.(A) The Service Charge payable by the Tenant for any Accounting Period shall
be a fair proportion of the Service Cost attributable to the Premises
from time to time as properly determined by the Management Company (and
so in proportion for any Accounting Period not falling wholly within the
Term the Service Cost in any such case being deemed to accrue on a day to
day basis for the purpose of apportionment)
(B) If at any time and from time to time during the Term the method or basis
of calculating or ascertaining the cost of any item of the Services shall
alter or the basis of calculating or ascertaining the Service Cost in
relation to any item of the Services shall change and as a result it is
reasonable that there be an alteration or variation of the calculation of
the Service Charge in order to achieve a fairer and better apportionment
of the Service Cost amongst the tenants of the Building then and in every
such case the Management Company shall vary and amend the Service Charge
and make appropriate adjustments thereto provided always that in the
event of any dispute between the Management Company and the Tenant and
the other tenants of the Building or any of them the same shall be
referred to the Expert for determination (the Expert to act as an expert
and not as an arbitrator) whose decision shall save in the case of
manifest error be binding on the parties (including his decisions as to
the responsibility for his costs)
(C) The fair proportion to be determined by the Management Company in
paragraph 3(A) above shall be determined on the basis that all
accommodation within the Building let or occupied or designed contracted
or adapted for letting or occupation (other than management accomodation)
is fully let on terms which include service charge provisions consistent
with the service charge provisions contained in this lease (save where
otherwise specified herein) and such proportion shall not be increase or
altered by reason of the fact that at any time any part of such
accommodation may be vacant or that any
26
tenant or other occupier of any other part of the Building may default
in payment of its due proportion of the Service Cost
4.(A) The Tenant shall pay to the Management Company the Interim Sum without
deduction by equal quarterly instalments in advance on the usual quarter
days unless the Management Company shall reasonably anticipate that
amounts to be incurred during the year immediately next following are
anticipated as being incurred in accordance with a programme of non equal
expenditure in which event the Management Company shall serve notice to
such effect upon the Tenant and shall thereupon be entitled to require
amounts of the Interim Sum to be paid by advance quarterly instalments of
unequal amounts reasonably stipulated by the Management Company
(B) The Management Company shall be entitled to require as part of the
Interim Sum payments in advance on account of the cost of the consumption
of and supply charges in respect of electricity consumed within the
Premises (save for any amounts which are invoiced directly by London
Electricity plc to the Tenant) such sums not to exceed a fair and proper
estimate of amounts reasonably anticipated by the Management Company as
falling due within the next quarter
(C) If the Tenant consistently requests the provision of any of the Services
outside Normal Business Hours the Management Company shall be entitled in
addition to require the Tenant to pay along with payments of the Interim
Sum a fair and proper estimate of amounts likely to be payable by the
Tenant in the next quarter on account of such Services in accordance with
the terms of this lease
(D) The Interim Sum for the Accounting Period ending 31st December 1996 shall
be pounds sterling 28,963
(E) Either before or as soon as practicable after the commencement of every
Accounting Period the Management Company shall serve or cause to be
served on the Tenant written notice of the Interim Sum for the relevant
Accounting Period Provided that without prejudice to the provisions of
paragraphs 6 and 7 of this schedule if the written notice aforesaid shall
be served after the first occurring quarter day in the relevant
Accounting Period the Tenant shall until service of the written notice
aforesaid make payments on account of the Interim Sum for the relevant
Accounting Period on the days and in the manner provided by sub-paragraph
(A) of this paragraph of this schedule at an annual rate equal to the
Interim Sum for the immediately preceding Accounting Period
5.(A) As soon as practicable after the expiry of every Accounting Period (and
in any event within 4 months after such expiry) the Management Company
shall serve or cause to be served a Service Charge Certificate on the
Tenant for the relevant Accounting Period
(B) A Service Charge Certificate shall contain a summary of the Service Cost
in respect of the Accounting Period to which it relates and the relevant
calculations showing the Service Charge
27
(C) The Tenant may request further details of the breakdown of the
expenditure under any particular item or items shown in a Service Charge
Certificate by giving notice thereof in writing to the Management Company
within three months of the date of service on the Tenant of the relevant
Service Charge Certificate and upon receipt of such a notice the
Management Company shall furnish to the Tenant all such relevant details
in its possession or control or which can reasonably be obtained by it as
relate to the expenditure under the item or items in question at the cost
of the Tenant PROVIDED ALWAYS that notwithstanding the giving of any such
notice the Tenant shall nevertheless pay all Interim Sums and Service
Charges as and when they fall due or as may be underpaid from time to
time (but without prejudice to any challenge claim or dispute that the
Tenant may have made or may make in the future in respect of its Service
Charge liability or otherwise)
6. Within fourteen days after the service on the Tenant of a Service Charge
Certificate showing that the Service Charge for any Accounting Period
exceeds the Interim Sum for that Accounting Period the Tenant shall
(without prejudice to any challenge claim or dispute as aforesaid) pay to
the Management Company or as it shall direct a sum equal to the amount by
which the Service Charge exceeds the Interim Sum provided that and the
Tenant hereby acknowledges that if there shall be any such excess in
respect of the Accounting Period the amount of such excess shall be a
debt due from the Tenant to the Management Company and in the event that
such excess is not received in cleared funds by the Management Company
within 14 days of the due date for payment it shall attract interest at
the Interest Rate calculated for the period commencing on the due dates
for payment and ending on the date the sum is subsequently received by
the Management Company notwithstanding that the Term may have expired or
been determined before the service by or on behalf of the Management
Company of the relevant Service Charge Certificate
7. If in any Accounting Period the Service Charge is less than the Interim
Sum for that Accounting Period a sum equal to the amount which the
Interim Sum exceeds the Service Charge shall be accumulated by the
Management Company and shall be applied in or towards the Service Charge
for the next following Accounting Period or Accounting Periods or at or
after the end of the Term repaid to the Tenant within 14 days after
preparation of the Service Charge Certificate and in the event that the
excess is not received by the Tenant on the due date for payment it shall
attract interest at the Interest Rate for the period commencing on this
due date for payment and ending on the date that the sum is due is
received in cleared funds by the Tenant.
8. Unless challenged by the Tenant pursuant to the provisions of paragraph 9
of this schedule every notice certificate calculation determination or
assessment made by or on behalf of the Management Company referred to in
this schedule shall (save where a manifest error appears) be conclusive and
binding upon the parties hereto
9. The Tenant (acting reasonably) may at any time within six months after the
submission of a Service Charge Certificate challenge it on any reasonable
ground (including without limitation on the ground that the Service Charge
therein stated exceeds the Service Charge which should have been payable
had the provisions of this lease been properly adhered to) Provided that
the Tenant gives notice with full particulars of its ground of alleged
challenge and in any such case:
28
(A) any sum due to or payable by the Management Company pursuant to
paragraphs 6 and 7 above shall still be paid or allowed pending
resolution of the Tenant's challenge as if the Service Charge Certificate
were correct
(B) the Management Company and the Tenant shall endeavor to resolve the
relevant issue but if they cannot do so the issue in dispute shall be
referred to the Expert (acting as an expert and not an arbitrator) whose
decision shall save in the case of manifest error be binding on the
parties (including his decision as to the responsibility for his costs)
(C) such adjustments to the Service Charge Certificate as may be required to
be made in consequence of the resolution of the dispute shall be paid as
soon as practicable after such resolution and any sum due to or payable
by the Management Company shall then be paid or allowed (as the case may
be) immediately together with interest at the Interest Rate on such sum
during the period which it has been underpaid or overpaid
10. All sums obtained from the Tenant and any other tenants or occupiers of the
Building towards the Service Cost and sums collected in respect of the
Reserve shall each be placed in separate interest bearing designated
deposit accounts to be applied only towards the cost of providing the
Services and all interest accrued on such deposit account shall be credited
(net of tax) to the account
11. The Management Company will account to the Landlord as soon as practicable
following expiry of each Accounting Period for that part of the Service
Charge which relates to costs directly incurred by the Landlord and not by
the Management Company including (but not limited to) the costs referred to
in paragraphs 5 7 8 9 and 12 of Part II of schedule 5
12. If in the Management Company's reasonable discretion any of the Services
have to be provided to a greater extent (or the cost of provision of such
Services is greater) than would normally apply in the context of the
general management of the Building in accordance with this lease as a
result either: -
(a) of a specific request by the Tenant (with or without other tenants or
occupiers of accommodation in the Building); or
(b) where such provision is required in the interests of good estate
management as a result of any acts or omissions of the Tenant in
relation to its use and occupation of the Premises
then the Management Company shall be entitled to require the Tenant to meet
the cost of such provision (or a fair proportion thereof determined by the
Management Company) within 10 working days following a demand by the
Management Company
29
SCHEDULE 5
(SERVICES)
PART I
1. Inspecting maintaining repairing amending altering and (where
consistent with an obligation to repair) rebuilding and renewing and
where appropriate treating washing down painting and decorating all
load bearing and other structural parts of the Building and the
relevant parts of it described in paragraphs (ii) and (iii) of schedule
1
2. Inspecting servicing maintaining operating and repairing and (where
consistent with an obligation to repair) renewing amending overhauling
and replacing the Landlord's Services Equipment and all other apparatus
plant machinery and equipment within the Building (if any) from time to
time excluding any "stand alone" systems installed by the Tenant or any
other tenant or occupier of the Building
3. Inspecting servicing maintaining operating repairing cleansing emptying
amending altering and renewing overhauling and replacing all Service
Media
4. Keeping the Common Parts and the car park within the Building properly
cleansed decorated treated maintained and lit to such standard as the
Management Company may from time to time consider adequate
5. Providing such mechanical ventilation heating and (if deemed desirable
by the Management Company) cooling for such parts of the Building and
for such hours and times of the year (subject to clause 6) as the
Management Company shall in its discretion determine
6. Providing and maintaining at the Management Company's discretion any
furniture architectural or ornamental features or murals and any
horticultural displays plants shrubs trees or garden area in the Common
Parts and maintaining the same
7. Supplying whether by purchase or hire and maintaining (and where
consistent with an obligation to repair) renewing replacing repairing
servicing and keeping in good and serviceable order and condition all
fixtures and receptacles appliances materials equipment plant and other
things which the Management Company may deem desirable or necessary for
the maintenance appearance upkeep or cleanliness of the Building or any
part of it or otherwise in connection with the provision of the
Services
8. Cleaning as frequently as the Management Company shall in its
reasonable discretion consider adequate the exterior and interior of
all window glazing and window frames and other fenestration units in
the Common Parts and the outside of the window glazing referred to in
paragraph (iii) of schedule 1 and the maintenance cleansing repair
inspection and (where reasonably necessary) renewal or replacement of
all window cleaning) cradles carriageways and runways
9. Providing a security service to the Common Parts and the car park
within the Building including where reasonably appropriate in the
Management Company's judgment closed circuit television and/or other
plant and equipment for the purpose of surveillance and supervision of
users of the Building
30
10. Disposing of refuse from the Building (including collecting and
compacting or otherwise treating or packaging as the Management Company
reasonably thinks fit such refuse and if necessary pest control) and
(where consistent with an obligation to repair) the provision repair
maintenance and renewal of any plant and equipment in connection
therewith
11. Maintaining during Normal Business Hours an adequate supply of hot and
24 hours a day cold water and supplying washing and toilet requisites
in the lavatory accommodation in the Building
12. Such rodent or other pest control in the Building as the Management
Company shall reasonably consider necessary or desirable
13. Providing one or more receptionists in the ground floor entrance hall
of the Building
14. Providing and maintaining a signboard in the entrance lobby of the
building for the display of tenants' names
15. Controlling so far as practicable traffic flow within the car park in
the Building and traffic 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
16. Providing and maintaining a post room facility for the reception of
mail to the Building
17. Complying with the obligations on the part of the tenant contained in
the Head Lease save for the payment of rent
18. Complying with the obligations set out in clause 6
19. Any other services relating to the Building or any part of it provided
by the Management Company from time to time which shall be:-
(1) reasonably capable of being enjoyed by the occupier of the Premises
or
(2) reasonably calculated to be for the benefit of the Tenant and other
tenants of the Building or
(3) appropriate for the maintenance upkeep or cleanliness of the
Building or
(4) otherwise in keeping with the principles of good estate management
PROVIDED ALWAYS that
(i) Where in this schedule there are references to matters or things
which are then stated to include certain particular matters or
things which are not also stated to be without prejudice to the
generality of the wording preceding it nevertheless the reference
to the particular matters or things shall be deemed to be and in
each case shall be without prejudice to the generality of the
wording preceding it
(ii) The Management Company shall when reasonable have the right to
cease or to procure the cessation of the provision of or add to or
procure the addition to
31
any item of Services matter or thing specified in this schedule if
the Management Company shall having regard to the principles of
good estate management reasonably deem it desirable or expedient
so to do but before so doing the Management Company shall notify
all the tenants in the Building
(iv) The Management Company or the managing agents may temporarily
withdraw any item of Services matter or thing specified in this
schedule if in their reasonable opinion such withdrawal is in the
interest of good estate management or if such withdrawal is due to
circumstances beyond the control of the Management Company
PART II
1. All fees and disbursements of any individual or firm or company
employed or retained by or on behalf of the Management Company or its
agents (including without limitation managing agents fees) for or in
connection with:-
(1) any surveying or accounting functions for the Building and
(2) the performance of the Services or any of them and any other duties
in or about the Building or any part of it relating to the general
management administration security maintenance protection and
cleanliness of the Building
2. The reasonable fees of the Management Company for any of the Services
or for the functions and duties referred to in paragraph 1 of this Part
of this schedule which shall be undertaken by the Management Company
and not by a third party
3. The cost (in addition to any fees referred to in paragraph 2 and where
the context permits paragraph 1 of this Part of this schedule) of
employing (whether by the Management Company or any managing agents or
any other individual or firm or company) such staff as the Management
Company may in its reasonable discretion consider appropriate for the
performance of the Services and the functions and duties referred to in
paragraph 1 of this Part of this schedule and all other incidental
expenditure in relation to such employment including without prejudice
to the generality of the foregoing:-
(1) salaries wages pensions and pension contributions benefits in kind
and other emoluments and National Insurance and other statutory
contributions or levies
(2) the provision of uniforms and working clothing
(3) the provision of vehicles tools appliances cleaning and other
material fixtures fittings and other equipment for the proper
performance of their duties and a store for housing the same and
4. The cost of entering into any contracts for the carrying out of all or
any of the Services
5. All rates taxes assessments duties charges impositions and outgoings
which are now or during the Term shall be charged assessed or imposed
on:-
(1) the whole of the Common Parts or any part of them
32
(2) any residential accommodation provided for caretakers and other
staff employed in connection with the Building and any other
premises provided as referred to in paragraph 3(4) of this Part of
this schedule
excluding any tax (other than VAT) payable by the Landlord as a direct
result of any actual or implied dealing with the reversion of any Lease
or of the Landlord's receipt of income
6. The cost of the supply of water electricity gas oil and other fuel for
the provision of the Services and the cost of any electricity
generating transforming monitoring metering and distribution plant
machinery and equipment in or servicing the Building
7. The cost which the Landlord may be called upon pursuant to an Enactment
to pay as a contribution towards the expense of making repairing
maintaining rebuilding and cleansing any ways roads pavements or
structures Service Media or anything which may belong to or be used for
the Building or any part of it exclusively or in common with other
neighbouring or adjoining premises
8. The cost of taking all steps deemed desirable or expedient by the
Landlord and/or the Management Company for complying with or making
representations against or otherwise contesting the incidence of the
provisions of any Enactment relating to or alleged to relate to the
Building or any part or it for which any tenant is not directly and
exclusively liable
9. The cost to the Landlord and/or the Management Company of abating any
nuisance in respect of the Building or any part of it insofar as the
same is not the liability of any tenant
10. Any VAT (or any tax of a similar nature which may be substituted for or
levied in addition to it) incurred by the Management Company on any
other amount comprised in the Service Cost save to the extent that the
Management Company obtains credit for such VAT incurred by the
Management Company pursuant to sections 24 25 and 26 Value Added Tax
Act 1994 or any regulations made thereunder
11. A reasonable notional rent for any management accommodation provided
within the Building to facilitate the reasonable provision of the
Services
12. All other costs properly incurred in connection with the provision of
the Services
SCHEDULE 6
(MATTERS TO WHICH THE DEMISE IS SUBJECT)
1. The entries on the registers of Title Number NGL272172 as at the date
hereof
2. Agreement dated 24th November 1995 between The Prudential Assurance
Company Limited (1) 99 Bishopsgate Limited (2) The Scottish Amicable
Life Assurance Society (3)
33
[SEAL]
(THE COMMON SEAL of
(99 BISHOPSGATE LIMITED was
hereunto (affixed in the
presence of:-)
Director /s/
Secretary /s/
[SEAL]
(THE COMMON SEAL of
(99 BISHOPSGATE MANAGEMENT
(LIMITED was hereunto affixed in
the (presence of:-
Director /s/
Secretary /s/
[SEAL]
(THE COMMON SEAL of HAMMERSON
(U.K. PROPERTIES PLC was hereunto
affixed (in the presence of:-
Director /s/
Secretary /s/
34
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Acoustic sealant added
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B Detail 2 renamed to Detail 3; Office 3/9/96 MB FSS
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partition Detail 2 added
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GMW Partnership, Chartered Architects & Interior Designers
P.O. Box 1613, 239 Kensington High Street, London W8 6SL
Telephone 0171 937 8020 Fax: 0171 937 5815
GWM
Gollins Melvin Ward
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Project
99 Bishopsgate EC2
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Drawing Title
Tenancy floor - Level 12
Partition details
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North Scale Drawn by
1:2 MB
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Date Plot Date Checked by
22/08/96 03/09/96 PSS
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Project no. Drawing no. Revision
2512A L12/AA(P)009 B
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GMW Partnership, Chartered Architects & Interior Designers
P.O. Box 1613, 239 Kensington High Street, London W8 6SL
Telephone 0171 937 8020 Fax: 0171 937 5815
GWM
Gollins Melvin Ward
also at
Chase Mall Winchester Rd Bishops Waltham Hampshire
Telephone 0469 8955223
- ----------------------------------------------------------------------------
Project
99 Bishopsgate EC2
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Drawing Title
Tenancy floor - Level 12
Door elevations and details
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North Scale Drawn by
1:20, 1/2 Full size MB
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Date Plot Date Checked by
21/08/96 17/09/96 PSS
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Project no. Drawing no. Revision
2512A L12/AA(D)008 B
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GMW Partnership, Chartered Architects & Interior Designers
P.O. Box 1613, 239 Kensington High Street, London W8 6SL
Telephone 0171 937 8020 Fax: 0171 937 5815
GWM
Gollins Melvin Ward
also at
Chase Mall Winchester Rd Bishops Waltham Hampshire
Telephone 0469 8955223
- ----------------------------------------------------------------------------
Project
99 Bishopsgate EC2
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Drawing Title
Tenancy floor
Reflected ceiling plan
Level 12
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North Scale Drawn by
1:100 MB
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Date Plot Date Checked by
15/08/96 03/09/96 PSS
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Project no. Drawing no. Revision
2512A L12/AL(C)005 B
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GMW Partnership, Chartered Architects & Interior Designers
P.O. Box 1613, 239 Kensington High Street, London W8 6SL
Telephone 0171 937 8020 Fax: 0171 937 5815
GWM
Gollins Melvin Ward
also at
Chase Mall Winchester Rd Bishops Waltham Hampshire
Telephone 0469 8955223
- ----------------------------------------------------------------------------
Project
99 Bishopsgate EC2
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- ----------------------------------------------------------------------------
Drawing Title
Tenancy floor
Setting-Out partition plan
Level 12
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North Scale Drawn by
1:100 MB
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Date Plot Date Checked by
16/08/96 10/09/96 PSS
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Project no. Drawing no. Revision
2512A L12/AL(P)007 B
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