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EXHIBIT 10.16
THIS LEASE is made on July 5, 1999
BETWEEN:
(1) ANTHONY BOYLE PETER CROWLEY and MICHAEL McGINLEY of Unit 1 Printers End
Gatehouse Way Aylesbury (the "Landlord"); and
(2) CENTURION OPERATIONS LIMITED, formerly SIGMA WIRELESS (UK) LIMITED
(Company Number 03210249) whose registered office is at Unit 1 Printers
End Gatehouse Way Aylesbury (the "Tenant"); and
IT IS AGREED as follows:-
1. INTERPRETATION
1.1 In this Lease, unless the context otherwise requires:
"1995 Act" means the Landlord and Tenant (Covenants) Act 1995
"Amenities" means drainage, water, gas, electricity, telephone
and any other services or amenities of like nature
"Conducting Media" means gutters, gullies, pipes, sewers, drains,
watercourses, channels, ducts, flues, wires, aerials,
cables, mains, cisterns, tanks and all other
conducting media together with all meters and other
apparatus used in connection with them
"Environment Act" means the Environmental Protection Act 1990 and any
other Act of Parliament of a similar nature in force
at any time during the Term
"Guarantor" means the person (if any) referred to as "Guarantor"
on page 1 and shall include the personal
representatives of the Guarantor and any other person
who may from time to time guarantee all or any of the
Tenant's obligations under this Lease
"Insurance Rent" means the sum payable by the Tenant in relation to
insurance pursuant to and in the manner set out in
Clause 5.2.1
"Insured Risks" means fire, lightning, explosion, storm, tempest,
flood, impact, bursting or overflowing of water tanks
and pipes, earthquake, damage by aircraft and other
aerial devices or articles dropped
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from them, riot and civil commotion, labour
disturbances and malicious damage and such other
risks as the Landlord shall at any time during the
Term reasonably deem desirable or expedient to insure
against
"Interest Rate" means interest at the rate of 4 per centum per annum
above Barclays Bank PLC Base Rate for the time being
in force, (both before and after any judgment) such
interest to be compounded with rests on the usual
quarter days, or if such Base Rate shall cease to be
published then at the rate of 2 per centum per annum
above the rate at which the Landlord could reasonably
borrow such sums from time to time
"Landlord" means the person referred to as "Landlord" on page 1
and shall include the reversioner for the time being
immediately expectant on the determination of the
Term
"Landlord's Permission" means the previous consent in writing of the Landlord
(such consent not to be unreasonably withheld or
delayed) and (where requisite) any Superior Lessor
and their respective mortgagees. in the form of a
licence executed as a deed by the then Landlord,
Tenant and any Guarantor and duly dated and
containing such covenants as the Landlord shall
reasonably require
"this Lease" means this deed and any other deed, document or
agreement at any time during the Term amending or
supplemental to the same
"Planning Acts" means the Town and Country Planning Act 1990, the
Planning (Listed Buildings and Conservation Areas)
Act 1990, the Planning (Consequential Provisions) Act
1990, the Planning (Hazardous Substances) Act 1990,
the Planning and Compensation Act 1991 and any other
Act of Parliament of a similar nature in force at any
time during the Term
"Premises Acts" means the Occupiers' Liability Act 1957, the
Factories Act 1961, the Offices Shops and Railway
Premises Act 1963, the Fire Precautions Act 1971, the
Defective Premises Act 1972, the Health and Safety at
Work etc. Act 1974, the Occupiers' Liability Act 1984
and any other Act of Parliament regulating the safety
of premises and those occupying or visiting the same
in force at any time during the Term
"Property" means the property described in Part 1 of Schedule 1
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"Rent" means the yearly rent of (pound sterling) 42,000
(forty two thousand pounds)
"any Superior Lessor" means any person at any time during the Term having a
title to the Property in reversion mediately or
immediately expectant upon the termination of the
Landlord's title
"Tenant" means the person referred to as "Tenant" on page 1
and shall include the successors in title and
permitted assigns of the Tenant and all persons
claiming through or under the Tenant
"Term" means the term specified in Clause 2 and also the
period of any holding over or any extension of this
Lease whether by statute or at common law or by
agreement
"Termination Date" means the date of expiration or sooner determination
of the Term
"VAT" means Value Added Tax or any equivalent tax which may
at any time during the currency of this Lease be
imposed in substitution for it or in addition to it
and all references to rents or other sums payable by
the Tenant are exclusive of VAT.
1.2 In interpreting this Lease:
1.2.1 references to Clauses, pages and Schedules are to Clauses,
pages and Schedules of this Lease unless stated otherwise;
1.2.2 where reference is made to a statute this includes all prior
and subsequent enactments, amendments and modifications
relating to that statute and any subordinate legislation made
under it;
1.2.3 where the context so admits references to a "person" include
any individual, firm, unincorporated association or body
corporate, the singular number includes the plural number and
vice versa and words importing one gender include all genders;
1.2.4 if the Tenant or the Guarantor shall at any time be more than
one person, any reference to the Tenant or the Guarantor shall
be deemed to refer to each such person and any obligation on
the part of the Tenant or the Guarantor shall take effect as a
joint and several obligation;
1.2.5 the headings and index to this Lease shall be disregarded;
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1.2.6 any covenant by the Tenant not to carry out any action shall
be construed as if the same were (where appropriate)
additionally a covenant by the Tenant not to permit or suffer
such action to be done;
1.2.7 wherever and to the extent that any provision of this Lease
would or might contravene the provisions of section 25 of the
1995 Act then:
(a) such provision is to take effect only in so far as it
may do so without contravening section 25 of the 1995
Act; and
(b) where such provision is incapable of having any
effect without contravening section 25 of the 1995
Act this Lease is to be construed and interpreted as
if such provision were deleted; and
(c) the legality, validity and enforceability of any of
the remaining provisions of this Lease is not in any
way to be affected or impaired as a result.
2. DEMISE AND RENTS
The Landlord demises the Property to the Tenant for the term of two
years commencing on and including 1999 subject to all
matters contained or referred to in Schedule 3 together with (insofar
as the Landlord is able to grant the same) the rights set out in Part 2
of Schedule 1 but except and reserving as set out in Part 3 of Schedule
1 the Tenant paying therefor by way of rent throughout the Term without
any deduction, counterclaim or set off (whether legal or equitable):
2.1 the Rent by equal quarterly payments in advance on 25 March, 24 June,
29 September and 25 December in every year the first payment of the
Rent or a due proportion of it to the next following rent payment date
becoming due on the commencement date of the Term;
2.2 the Insurance Rent;
2.3 a fair and reasonable proportion of all costs incurred by the Landlord
in inspecting, cleaning, maintaining, repairing and renewing any
boundary or other party structures or Conducting Media or other
services or conveniences which at any time during the Term belong to or
be used by the Property in common with any other property;
2.4 all other sums (including VAT) due from the Tenant to the Landlord
under the terms of this Lease.
3. TENANT'S COVENANTS
The Tenant covenants with the Landlord:
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3.1 Rent and Payments
to pay the Rent and other sums reserved as rent by this Lease at the
times and in the manner at and in which the same is reserved in this
Lease and made payable and if required by the Landlord at any time
during the Term to pay the same by banker's standing order or direct
debit;
3.2 Outgoings
3.2.1 to pay all rates, taxes, duties, charges, assessments and outgoings
whatsoever which are now or may during the Term be payable in respect
of the Property;
3.2.2 to pay for all Amenities used by or available to the Property
(including all standing charges) and to observe and perform all present
and future regulations of the statutory supply authorities;
3.3 Repair
to keep the Property clean and in good and substantial repair and
working order (damage by those of the Insured Risks from time to time
insured against alone excepted unless such insurance shall be vitiated
or payment of the policy monies refused in whole or in part in
consequence of any act or omission of the Tenant or the Tenant's
employees, licensees or visitors);
3.4 Decoration
to put and keep the Property in a state of good and substantial
decoration and in accordance with a design scheme and using materials
the quality and colours all of which shall have first been submitted to
and approved by the Landlord (such approval not to be unreasonably
withheld or delayed) and:
3.4.1 in the last year of the Term (howsoever determined) to
redecorate in a proper and workmanlike manner those parts of
the exterior of the Property previously or usually so dealt
with;
3.4.2 in the last year of the Term (howsoever determined) to
redecorate in a proper and workmanlike manner those parts of
the interior of the Property previously or usually so dealt
with,
PROVIDED ALWAYS that nothing in this Clause 3.4 shall oblige the Tenant
to yield up the Property in any better decorative condition than is
evidenced by the photographs annexed to this Lease;
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3.5 Access of Landlord and Notice to Repair
to permit the Landlord and all persons authorised by the Landlord (with
or without equipment) to enter upon the Property at any time on forty
eight hours prior notice (except in an emergency where no notice is
required):
3.5.1 to take inventories, to view and examine the state of repair
and condition of the Property and to determine whether the
Tenant has complied with all its obligations in this Lease and
to give to the Tenant or the Tenant's agent or leave on the
Property notice in writing to the Tenant of all defects
affecting the Property and the Tenant will, within the period
of 28 days after the giving or leaving of such notice, repair
and make good the Property and if the Tenant shall fail
satisfactorily to comply with such notice the Landlord may at
any time (but without prejudice to the right of re-entry
contained in this Lease) enter the Property with workmen and
all necessary equipment to repair and make good the Property
and the proper expense of such repairs together with all
reasonable and proper legal and surveyors fees incurred in
connection with this Sub-Clause, shall be repaid on a full
indemnity basis by the Tenant to the Landlord within 7 days of
written demand as a contractual debt with interest at the
Interest Rate from the date of demand to the date of
repayment;
3.5.2 to inspect the Property for all purposes connected with any
proposed action pursuant to Part II of the Landlord and Tenant
Act 1954 or the implementation of the Rent Review Provisions
or any dealing with the Landlord's or any Superior Landlord's
reversionary interest in the Property and to furnish such
information relevant for such purposes as may reasonably be
requested in writing by the Landlord;
3.5.3 for any other reasonable and proper purpose including but
without prejudice to the generality of the foregoing the
exercise of any rights reserved to the Landlord (or any
Superior Landlord) by this Lease and to comply with any
obligations of the Landlord (whether arising under this Lease
or otherwise)
Provided that any exercise of the above rights by the Landlord does not
constitute an action for forfeiture by the Landlord or evidence an
intention to accept or effect a surrender of the Term;
3.6 Alterations and Additions
3.6.1 save as permitted by Sub-Clause 3.6.2 not to make any
alterations or additions or improvements to the Property
whether structural or otherwise nor change the external
appearance of the Property and not to merge the Property with
any adjoining or adjacent premises;
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3.6.2 the Tenant may with the Landlord's Permission carry out
internal non structural alterations or improvements to the
Property where:
(a) details of the proposed works and full specifications
with plans in triplicate have been supplied to and
approved by the Landlord;
(b) the Tenant has covenanted with the Landlord in such
form as the Landlord shall reasonably require with
regard to the execution of any such works and the
costs of providing the Landlord's Permission and has
further covenanted to reinstate the Property at the
Termination Date to its condition prior to the
carrying out of such alterations or additions;
PROVIDED ALWAYS that the Tenant shall be entitled to erect and
remove shelving and demountable partitioning without the
consent of the Landlord Provided That such shelving and
partitioning is removed on or before the Termination Date;
3.7 User
not to use the Property or any part of it for any other purpose than
for the design manufacture and testing of molded products relating to
the handheld wireless communications industry or any other use or uses
within Class B2 and/or B8 of the Schedule to the Town and Country (Use
Classes) Order 1987 (notwithstanding any amendment or revocation of
such Order) as the Landlord shall approve (such approval not to be
unreasonably withheld) and in particular that the Property shall not be
used for residential purposes or for any person to sleep in;
3.8 Dealings
3.8.1 not (except by way of a permitted assignment or transfer of
the whole of the Property) to part with or share the
possession or occupation of the whole or any part or parts of
the Property;
3.8.2 not to hold the Property or any part or parts of the Property
or this Lease on trust for another;
3.8.3 not to assign, transfer or charge any part or parts (as
opposed to the whole) of the Property;
3.8.4 not to charge the Property as a whole without the Landlord's
Permission;
3.8.5 not to underlet the whole or any part or parts of the
Property;
3.8.6 Assignment/Transfer
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not to assign or transfer the Property as a whole without
first:
(a) making a written application for a licence to assign
and obtaining the Landlords Permission:
(b) satisfying the circumstances specified for the
purposes of section 19(1A) of the Landlord and Tenant
Act 1927 and set out in Clause 3.8.7; and
(c) complying with the conditions specified for the
purposes of section 19(IA) of the Landlord and Tenant
Act 1927 and set out in Clause 3.8.8;
3.8.7 the circumstances referred to in Clause 3.8.6(b) are that:
(a) all sums due from the Tenant under this Lease have
been paid at the date of the application of the
licence to assign; and
(b) in the Landlord's reasonable opinion there are at the
date of the application for the licence to assign no
material outstanding breaches of any tenant covenant
under this Lease or any personal covenants undertaken
by the Tenant relating to the state and condition of
the Property;
(c) in the Landlord's reasonable opinion the proposed
assignee is a person who at the date of the
application for licence to assign is likely to be
able to comply with the tenants covenants in this
Lease and is likely to continue to be such a person
following the assignment;
(d) the proposed assignee does not have the benefit of
diplomatic immunity;
(e) the proposed assignee is a corporation registered in
(or if an individual is resident in) a jurisdiction
in which the order of a Court obtained in England and
Wales will be enforced without any consideration of
the merits of the case;
3.8.8 (subject to the provisions of Clause 3.8.9) the conditions
referred to in Clause 3.8.6(c) are that:
(a) the Tenant shall enter into an authorised guarantee
agreement (as defined in section 16 of the 1995 Act),
such agreement to be by way of deed in the form set
out in Schedule 2 with such amendments or additions
as the Landlord shall reasonably require;
(b) if reasonably required by the Landlord any guarantor
of the Tenant shall enter into a guarantee such
guarantee to be by way of deed in the form set out in
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Schedule 2 with such amendments or additions as the
Landlord shall reasonably require;
(c) if reasonably required by the Landlord the proposed
assignee shall obtain one or more guarantors
reasonably acceptable to the Landlord who shall
covenant by deed with the Landlord in the form set
out in Schedule 2 with such amendments or additions
as the Landlord shall reasonably require;
(d) the written licence to assign shall contain a
condition that if at any time prior to the assignment
the circumstances (or any of them) specified in
Clause 3.8.7 cease to exist the Landlord may revoke
the licence by written notice to the Tenant;
(e) if reasonably required by the Landlord the proposed
assignee shall deposit in a bank account with a bank
nominated by the Landlord a cash deposit equal to the
annual Rent and the proposed assignee shall enter
into a deed charging that deposit in favour of the
Landlord to secure the payment of Rent and other
tenant obligations under this Lease, such charge to
be in such form as the Landlord shall reasonably
require;
3.8.9 notwithstanding the provisions of Clause 3.8.8 the conditions
prescribed in Clause 3.8.8(a), (b), (c) and (e) shall not
apply in relation to a proposed assignment to a wholly owned
subsidiary company of Centurion International Inc. which is
registered in England and Wales;
3.8.10 nothing in this Clause 3.8 shall limit the Landlord's right to
withhold consent to an assignment in circumstances other than
those mentioned in Clause 3.8.7 if it is reasonable to do so,
or to give consent to an assignment subject to conditions
other than those mentioned in Clause 3.8.8 if those conditions
are reasonable;
3.8.11 within one month after any assignment, assent, transfer or
devolution of an interest under this Lease or the grant of any
underlease of the Property or any mortgage or charge of the
Property, to produce to the Landlord's solicitors a certified
copy of the document evidencing the same and pay the
Landlord's solicitors reasonable fees for its registration
(being not less than (pound sterling) 20) together with any
fees payable to any Superior Lessor or mortgagee;
3.8.12 within one month of the service of any notice served under
section 40 of the Landlord and Tenant Act 1954 to provide to
the Landlord the information required by that section in a
full and expeditious manner;
3.9 Advertisements
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no advertisement, sign or other indications of trade or business shall
be set up on or affixed to the Property without the Landlords
Permission provided always that whilst Sigma Wireless (UK) Limited or
any other wholly owned subsidiary company of Centurion International
Inc. which is registered in England and Wales occupies the Property the
Landlord's Permission shall not be required for the erection of sips at
the Property subject to planning permission (if required) being
procured before the erection of the sign,
3.10 Notices
3.10.1 forthwith on receipt to give full particulars to the Landlord
of any communication affecting or which may affect the
Property or the assessment of any rate, tax, duty, charge or
other outgoing now or hereafter payable on or in respect of
the Property or the nature or value of the Landlord's or any
Superior Lessor's interest in the Property;
3.10.2 at the request of the Landlord to make or join with the
Landlord in making such objections to or representations
against or in respect of any such communication as the
Landlord shall deem fit;
3.10.3 forthwith at the Landlord's request to take all steps required
by the Landlord in respect of any such notices;
3.11 Statutory Provisions, Fire and Health and Safety and Planning
3.11.1 at the Tenants cost to comply with all Acts of Parliament both
present and future affecting the Property or the user thereof
or the use of any plant, machinery, fixtures or fittings in
them and to keep the Landlord indemnified against all actions,
proceedings, costs, claims, demands and liabilities relating
to them;
3.11.2 not to make any application under the Planning Acts or the
Environment Act without the prior written consent of the
Landlord;
3.12 Rights of Light and Encroachments
not to stop up, darken or obstruct any windows or lights belonging to
the Property or any other premises nor to permit any new window, light,
opening, doorway, path, passage, conduits or other encroachment or
easement to be made into, against or upon the Property which might be
or become a detriment or annoyance or inconvenience to the Landlord or
any Superior Lessor and in case any such window, light~ opening,
doorway, path, passage, conduit or other encroachment or easement shall
be made or attempted to be made the Tenant will give immediate notice
of it or them to the Landlord and will at the request of the Landlord
adopt such means as may be required to prevent any such encroachment or
the acquisition of any such easement;
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3.13 Indemnity
3.13.1 to keep the Landlord and any Superior Lessor indemnified
against all actions, proceedings, costs, claims, demands and
expenses in respect of any liability or alleged liability in
respect of any injury to or the death of any person (however
the same may be caused), damage to any property movable or
immovable, the Premises Acts, the Planning Acts and the
Environment Act, the infringement, disturbance or destruction
of any right, easement or privilege and every other liability
arising directly or indirectly out of the use of the Property
or anything done or omitted to be done on them, or any breach
of the Tenant's obligations in this Lease;
3.13.2 to notify the Landlord in writing immediately upon any of the
events or matters referred to in Sub-Clause 3.13.1 occurring
or arising;
3.14 Costs
3.14.1 to pay to the Landlord on demand and on an indemnity basis all
reasonable and proper costs, charges, expenses (including
reasonable and proper legal costs and surveyors fees and other
professional fees and any commission payable to a Bailiff
where appropriate), losses and liabilities which may be
reasonably and properly incurred by the Landlord:
(a) in or in contemplation of any proceedings under
sections 146 and 147 of the Law of Property Act 1925
(notwithstanding that forfeiture may be avoided
otherwise than by relief granted by the court);
(b) as a result of or in connection with any application
for Landlord's Permission whether or not the
application is withdrawn or the Landlord's Permission
is refused (other than unreasonably) save where such
Landlord's Permission is granted subject to
conditions which are declared by a court of competent
jurisdiction to be unreasonable; and
(c) remedying any breach by the Tenant of any of the
Tenant's covenants or obligations in this Lease;
3.15 Yield Up
3.15.1 immediately prior to the Termination Date quietly to yield up
the Property to the Landlord in accordance with the proper
performance of the Tenants covenants contained in this Lease
and with all refuse, tenants fixtures and fittings and
lettering and signs put up by the Tenant duly removed;
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3.15.2 in the event of the Tenant failing by the Termination Date
wholly to comply with Sub-Clause 3.15.1 to pay to the Landlord
on demand:
(a) a sum by way of compensation at a rate equivalent to
the Rent payable by the Tenant immediately prior to
the Termination Date for the period between the
Termination Date and either:
(i) the date when the Tenant shall have fully
complied with the Tenant's covenants
contained in this Lease; or
(ii) the date when the Landlord could reasonably
have been expected to complete all remedial
works required to repair the breach of the
Tenant's covenants; or
(iii) the date from which the Landlord becomes
entitled to and does actually receive the
full rent upon a re-letting of the whole of
the Property
whichever of the three dates shall first occur,
(b) the cost of putting the Property into the state of
repair, condition and decoration in which they shall
have been had the Tenant complied with the terms of
this Lease;
(c) on an indemnity basis all costs and expenses
(including legal and surveyors' and other
professional fees) incurred by the Landlord in
connection with the matters referred to in this
Sub-Clause 3.15.2;
3.16 VAT
3.16.1 to pay VAT upon the Rent and upon any other sums payable by
the Tenant or any other supply of goods or services (within
the meaning of section 5 and Schedule 4 of the Value Added Tax
Act 1994) made by the Landlord to the Tenant under this Lease
so far as such tax is properly chargeable upon the same and in
relation to taxable supplies made by the Landlord to the
Tenant the Landlord shall deliver to the Tenant a VAT invoice
addressed to the Tenant;
3.16.2 in every case where the Tenant has agreed to reimburse or
indemnify the Landlord in respect of any payment made by the
Landlord under the terms of or in connection with this Lease
to reimburse also any VAT paid by the Landlord on such payment
unless the VAT is actually recovered by the Landlord as an
input in relation to supplies to the Landlord;
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3.17 Interest on Arrears
that if any sums from time to time payable by the Tenant to the
Landlord under this Lease shall not be paid to the Landlord within 14
days of the date when such sums become due (whether lawfully demanded
or not) or are tendered to the Landlord but the Landlord reasonably
refuses to accept the same so as to preserve any rights the Landlord
has the Tenant shall pay to the Landlord (without prejudice to any
other right remedy or power available to the Landlord) interest thereon
(both before and after any judgement) from the date when such sums
first became due until the date of actual payment at the Interest Rate;
3.18 Removal of Tenant's Effects
to remove any signs, refuse, tenant's furniture or goods upon the
Property at the determination of the Term (howsoever determined) and to
make good any damage caused by such removal. If the Tenant shall fail
to remove the same within 30 days of the determination of the. Term
then (without prejudice to any other remedy of the Landlord) the
Landlord may, as agent of the Tenant (and the Landlord is appointed by
the Tenant to so act), sell any property and hold the proceeds of sale
after deduction of the costs and expenses of removal, storage and sale
to the order of the Tenant and the Tenant shall indemnify the Landlord
against any liability incurred by it to any third party whose property
shall have been sold by the Landlord in the bona fide mistaken belief
(which shall be presumed unless the contrary be proved) that such
property belonged to the Tenant;
3.19 Superior Title
to observe and perform the matters contained or referred to in the
documents listed in Schedule 3 so far as any of the same are still
subsisting and capable of taking effect and relate to the Property and
to keep the Landlord indemnified against all actions, proceedings,
costs, claims and demands in any way relating thereto;
4. LANDLORD'S COVENANTS
The Landlord covenants with the Tenant subject to the Tenant complying
with terms of this Lease that the Tenant may peaceably and quietly hold
and enjoy the Property during the Term without any unlawful
interruption or disturbance by the Landlord or any person rightfully
claiming through or under the Landlord;
5. INSURANCE
5.1 Landlord's Insurance Obligations
The Landlord covenants with the Tenant subject to the Tenant complying
with the terms of tins Lease, to keep the Property or procure that the
Property is kept insured during the Term
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(unless such insurance becomes void or renewal is refused by reason of
some act, neglect, default or omission of the Tenant or the Tenant's
employees, licensees or visitors) against:
5.1.1 the occurrence of such of the Insured Risks as the Landlord
may from time to time require to insure against in such a sum
as the Landlord shall from time to time be advised represents
the full re-instatement value of the Property;
5.1.2 the cost of demolition and site clearance and the professional
and other fees and costs likely to be incurred from time to
time in rebuilding or re-instating the Property including (for
the avoidance of doubt) any costs incurred by the Landlord in
complying with building or other regulations under or framed
in pursuance of any Act of Parliament or with By-Laws of any
Municipal or Local Authority and any VAT which the Landlord
cannot recover from Customs & Excise;
5.1.3 loss of the Rent due to damage or destruction by any of the
Insured Risks for a period of 3 years including an amount
equal to any increase in Rent which would have been payable
pursuant to a rent review under this Lease but for such damage
or destruction;
5.1.4 third party and public indemnity liability of the Landlord to
a reasonable amount having regard to the Landlord's potential
liability;
but so that:
5.1.5 the Landlord's obligation to maintain insurance shall be
subject to insurance cover being obtainable on reasonable
terms from a reputable insurance company on the insurance
market in the United Kingdom; and
5.1.6 the Landlord shall not be obliged to insure for any excess
exclusion or limitations that are standard in the market place
for the type of cover.
5.2 Tenant's Insurance Obligations
The Tenant covenants with the Landlord:
5.2.1 to pay within 7 days of demand therefor
(a) all gross premiums and other sums payable by the
Landlord in complying with the Landlord's covenant
contained in Clause 5.1 of this Lease;
(b) the amount of any additional premiums payable for the
insurance of the Property or any other nearby
premises of the Landlord against the Insured Risks
during the Term by reason of the trade or business
carried on or at the
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Property or anything done or kept thereon being
deemed (in their absolute discretion) a hazardous or
special risk by the Landlord's insurers;
5.2.2 to maintain insurance in respect of the Property against any
liability the Tenant or any occupier of the Property may incur
under the Premises Acts and any liability under the indemnity
provisions of Clause 3.13 such insurances in all cases to be
on such terms and for such sums as the Landlord shall
reasonably require and it shall be a term of such insurance
that all monies payable thereunder in respect of the said
indemnity provisions shall be paid to the Landlord;
5.2.3 to effect all such insurances in the joint names of the
Landlord and the Tenant and (if so required by the Landlord)
any Superior Lessor and/or any mortgagee of the Landlord
and/or of any Superior Lessor in some insurance office or
offices of repute approved by the Landlord acting reasonably
and at the request of the Landlord to produce the policy or
policies of such insurance and the receipt for or evidence of
payment of the last premium payable thereunder;
5.2.4 if the Tenant shall fail to effect and maintain such
insurances, the Landlord may effect and maintain the same and
the Tenant shall on demand reimburse to the Landlord all
monies expended by the Landlord for that purpose;
5.2.5 to insure and keep insured all plate glass and other windows
now or at any time during the Term installed in the Property
in their full re-instatement value against the usual risks of
destruction or damage and, in case of such damage or
destruction, to lay out the whole of the monies obtained from
such insurance in repairing or replacing the same, the Tenant
making good any deficiency out of the Tenant's own monies;
5.2.6 to comply with the requirements imposed by the insurers;
5.2.7 to notify the Landlord of the occurrence of any Insured Risk
immediately after becoming aware of the same;
5.2.8 not to maintain any other insurance in respect of the Property
other than as referred to in Sub-Clauses 5.2.2 and 5.2.5 of
this Lease;
5.2.9 not without the consent of the Landlord and without agreeing
to pay any increased or extra premium to do anything on the
Property which may render any increased or extra premium
payable for the insurance of the Property or any part or parts
thereof or any other property or which may make void or
voidable any insurance policy and if the Tenant breaches this
covenant the Tenant shall reimburse to the Landlord forthwith
on demand the cost of any such increased or extra premium and
all consequential expenses incurred by the Landlord and shall
forthwith cease from
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doing that thing which may cause or has caused any increased
or extra premium to become payable.
5.3 Suspension of Rent
If the Property or any part of it is at any time during the Term
destroyed or damaged by any of the Insured Risks from time to time
insured against so as to be unfit for occupation and use and provided
that the policy or policies of insurance effected by the Landlord shall
not have been vitiated or payment of the policy monies refused in whole
or in part in consequence of some act, neglect, default or omission of
the Tenant or the Tenant's employees, licensees or visitors then the
Rent, or a fair proportion of it according to the nature and extent of
the damage sustained, shall be suspended to the extent (but not
otherwise) that the insurers meet the Landlord's claim under the policy
for loss of Rent at the rate which would from time to time be payable
under this Lease if the Property were undamaged from the date of the
damage or destruction until the Property shall be again rendered fit
for occupation and use or for such period as may be covered for loss of
rent by the policy or policies of insurance effected by the Landlord
(whichever period shall be the shorter).
5.4 Reinstatement
If the Property is damaged or destroyed by any of the Insured Risks
subject to obtaining all necessary consents (which the Landlord
covenants to use all reasonable endeavours, to obtain) the Landlord
will cause all insurance monies received by the Landlord (other am in
respect of loss of Rent costs and fees) to be laid out as soon as
reasonably practicable in or towards rebuilding or reinstating the
Property so far as reasonably practicable to the same state as before
such damage or destruction.
6. PROVISOS AND DECLARATIONS
6.1 Re-Entry
if:
6.1.1 the Rent or any part thereof shall be unpaid for 14 days after
becoming payable (whether formally demanded or not); or
6.1.2 any covenant on the Tenant's part or any condition contained
in this Lease shall not be performed or observed; or
6.1.3 the Tenant enters into an arrangement or composition for the
benefit of its creditors; or
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6.1.4 an individual Tenant dies or commits an act of bankruptcy or
has an Administration Order made in respect of it or appears
unable to pay its debts within the meaning of section 268 of
the Insolvency Act 1986; or
6.1.5 a corporate Tenant has a winding up order made in respect of
it other than a members voluntary winding up of a solvent
company for the purposes of amalgamation or reconstruction
approved by the Landlord (such approval not to be unreasonably
withheld) or has a receiver, administrator or an
administrative receiver appointed of it or any of its assets
or is dissolved or struck off the Register of Companies or
(being a corporation incorporated outside the United Kingdom)
is dissolved or ceases to exist under the laws of its country
or state of incorporation or appears unable to pay its debts
within the meaning of section 123 of the Insolvency Act 1986
then it shall be lawful for the Landlord or any person authorised by
the Landlord at any time thereafter to re-enter upon the Property or
any part thereof in the name of the whole and thereupon the Term shall
absolutely determine without prejudice to any right of action of the
Landlord in respect of any breach of the Tenants obligations contained
in this Lease.
6.2 Exclusion of Liability
Except to the extent that the Landlord is liable under its covenants in
this Lease and except to the extent that the Landlord is liable due to
its own negligence or misconduct or the negligence or misconduct of its
agents or employees, the Landlord is not liable to:-
6.2.1 the Tenant or any other person for
(a) any accident, loss or damage which:
(i) may be suffered by the Tenant or any other
person; or
(ii) occasioned to the Property or to any goods
or property of the Tenant or any other
person; or
(b) any consequential loss or damage by reason or any
act, neglect, default or omission of any employee,
agent, invitee or tenant of the Landlord;
6.2.2 any person not a party to this Lease to perform any of the
covenants contained in it (whether express or implied).
Provided that the above exclusions operate by way of exclusion to the
maximum extent permitted by law.
6.3 Compensation for Disturbance
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Any statutory right of the Tenant to compensation from the Landlord on
vacating the Property is excluded from this letting to the extent
allowed by law.
6.4 No Implied Rights
Section 62 of the Law of Property Act 1925 is excluded from this Lease
and the Tenant shall not by virtue of this Lease be deemed to have
acquired or be entitled by any means whatsoever to any easement
affecting any other land or premises now or at any time hereafter
belonging to the Landlord and not comprised in this Lease.
6.5 Jurisdiction
This Lease is governed by English law and the parties submit to the
exclusive jurisdiction of the High Court of Justice in England.
6.6 Service of Notices
6.6.1 Any notice (which includes any communication) to be served by
any party to this Lease must be in writing and is deemed to be
properly served if sent by Recorded Delivery or delivery by
hand in the case of:
(a) a company, to the registered office of such company;
or
(b) an individual, to the address of such individual
in both cases to the address as stated in this Lease, unless
such company or individual has notified the other of any
change in the registered office of such company or address of
such individual in accordance with the terms of this Clause.
6.6.2 Service of any notice is deemed to be effected in the case of:
(a) delivery by hand, at the time of delivery, unless the
notice is received either after 4:00 pm on a working
day or on a day which is not a working day, in which
case it is deemed to be effected on the next working
day; or
(b) service by Recorded Delivery, at the expiration of 2
(two) working days from delivery into the custody of
the postal authorities
and in proving service it is sufficient to prove that personal
delivery was made or that the envelope containing such notice
was properly addressed and delivered into the custody of the
postal authorities as a prepaid first class Recorded Delivery.
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6.6.3 If the party to whom any notice to be served consists of more
than, one person the service of notice upon one of such
persons constitutes service upon all of them.
6.6.4 Any notice:
(a) required to be given by a party may be given by that
party's solicitor or agent and/or
(b) addressed to a party by name is not rendered invalid
by reason of the party having died, become insolvent
or changed name, whether or not the party serving
notice is aware of the fact.
6.6.5 If the Landlord assigns the benefit of its interest under this
Lease and either the assignee or the Landlord gives notice of
such assignment to the Tenant any notice required under this
Lease is deemed properly served on the Landlord only if served
on both the Landlord and the assignee in accordance with the
provisions of this Lease.
6.7 No Warranty as to Use
Nothing in this Lease implies that the Property may lawfully be used
for the purpose specified as the authorised use in this Lease.
6.8 New Lease
This is a new lease for the purposes of the Landlord and Tenant
(Covenants) Act 1995.
6.9 Tenant's Option to Determine
6.9.1 If the Tenant desires to determine this Lease at the
expiration of the first year of the Term and of such desire
gives not less than three calendar months' previous notice in
writing to the Landlord then immediately after the expiration
of the said first year of the Term this Lease and everything
contained in this Lease ceases and determines but without
prejudice to any claim by either party against the other in
respect of any antecedent breach of any obligation contained
in this Lease.
6.9.2 If at any time during the Term the Local Planning Authority
for the area within which the Property is situate serves
either an enforcement notice or a stop notice upon the Tenant
alleging that the use of the Property for the design,
manufacture and testing of molded products relating to the
handheld wireless communications industry is not a permitted
use of the Property pursuant to the Planning Acts then at any
time following the receipt of the enforcement notice and/or
stop notice the Tenant shall be entitled to determine this
Lease on giving not less than one month's
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previous notice in writing to the Landlord and immediately
after the expiration of the notice this Lease and everything
contained in this Lease shall cease and determine but without
prejudice to any claim by either party against the other in
respect of any antecedent breach of any obligation contained
in this Lease.
6.10 Court Order
Having been authorised to do so by an Order of the Aylesbury County
Court made on 7th June 1999 (case number AY901376) under the provisions
of section 38(4) of the Landlord and Tenant Act 1954 (as amended by
section 5 of the Law of Property Act 1969) the provisions of sections
24 to 28 (inclusive) of that Act shall be excluded in relation to this
Lease.
7. PERSONAL COVENANTS
Any covenants or obligations contained in any agreement to grant this
Lease on the part of the Landlord, any predecessor in title to the
Landlord or a developer are personal covenants on the part of the
person entering into such covenants or obligations and are not annexed
to and incidental to the Property and shall not be enforceable against
the Landlord qua Landlord.
EXECUTED AS A DEED by the parties on the date which first appears in this Lease.
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SCHEDULE 1
PART 1
THE PROPERTY
ALL THOSE land and building at Unit 1 Printers End Gatehouse Way Aylesbury which
premises are shown for the purposes of identification only edged red on the plan
annexed and include the following so far as the same may exist at any time
during the Term:
(a) all Conducting Media exclusively within and serving the said premises;
(b) all fixtures, fittings, plant, machinery and equipment within the said
premises (except tenant's and trade fixtures, fittings, plant,
machinery and equipment).
PART 2
RIGHTS
In common with the Landlord and all others from time to time entitled (in so far
as the Landlord is able to grant the same) the benefit of rights referred to in
entry number 3 of the Property Register of Title Number BM88070.
PART 3
EXCEPTIONS AND RESERVATIONS
EXCEPT AND RESERVED the right for the Landlord and all those authorised by the
Landlord to enter the Property for the purpose of exercising such rights,
powers, privileges and permissions conferred or granted under the covenants and
provisions of this Lease.
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SCHEDULE 2
GUARANTOR'S COVENANTS
1. GUARANTEE OF PERFORMANCE
Until such time as the Tenant whose obligations the Guarantor is
guaranteeing shall be released from its covenants by the terms of the
1995 Act the Rent and any other sum due under this Lease will be paid
in accordance with this Lease and all the Tenant's covenants and
conditions contained in this Lease will be duly observed and performed
as well after as before any disclaimer of this Lease and in the event
of default the Guarantor shall pay and make good to the Landlord on
demand and indemnify the Landlord against all losses, damages, costs
and expenses arising out of such default or otherwise incurred by the
Landlord whether arising under a court order or by virtue of any
judgement or determination.
2. ACCEPTANCE OF NEW LEASE/RE-LETTING
If this Lease is disclaimed or if this Lease shall be forfeited by the
Landlord under the provisions for re-entry herein contained or
otherwise at any time prior to the Tenant whose obligations the
Guarantor is guaranteeing being released from its covenants by the
terms of the 1995 Act then:
2.1 if so required by the Landlord within six months of the disclaimer or
forfeiture the Guarantor will at its own cost accept a new lease of the
Property for a term equal to the residue of the term granted by this
Lease remaining and at the Rent payable at the date of such disclaimer
or forfeiture and on the same terms as those contained in this Lease
(and subject to any underlease or tenancy or other interest created by
the Tenant for the time being affecting the Property or any part
thereof) such new lease to take effect from the date of such disclaimer
or forfeiture; and
2.2 if the Landlord shall alternatively desire to relet the Property
otherwise than to the Guarantor then the Guarantor shall pay to the
Landlord on demand the Rent and other sums that would have been payable
under this Lease but for the disclaimer or forfeiture including the
costs incurred by the Landlord in relation to any such reletting or any
attempted reletting (together with interest thereon at the Interest
Rate) from the date of the disclaimer or forfeiture until the date on
which the
Property is relet or the date which is six months from the date of the
disclaimer or forfeiture or the expiry of the Term whichever is the
earlier provided that the Guarantor's liability to the Landlord under
this Lease shall not determine until such reletting shall be completed.
3. LIABILITY OF THE GUARANTOR
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The obligations of the Guarantor set out in Paragraphs 1 and 2
shall be continuing and shall not be affected by any of the
following:
3.1 the Landlord grants time or indulgence to the Tenant or waives
or fails to enforce payment of the Rent or other sums due or
the performance and observance of any of the terms of this
Lease;
3.2 the terms of this Lease are varied (whether in writing or
otherwise) by the Landlord and the Tenant unless such
variation is a relevant variation as defined in section 18(4)
of the 1995 Act in which case the Guarantor shall be liable
only to the extent provided for by section 18 of the 1995 Act;
3.3 the reversion to this Lease is transferred;
3.4 the Landlord refuses to accept the rent tendered when the
Landlord was entitled (or would have been entitled after
service of a notice under section 146 Law of Property Act
1925) to re-enter the Property;
3.5 the Tenant ceases to exist or its structure, composition or
powers are altered;
3.6 the surrender of any part of the Property or the Term demised
by this Lease;
3.7 the release of any one or more of the Tenants or Guarantors
(where there are two or more);
3.8 the Guarantor would but for this provision have been released
by any act or thing.
4. GUARANTOR AS PRIMARY OBLIGOR
If any purported obligation or liability of the Tenant to the
Landlord contained in this Lease shall prove invalid or
unenforceable on any ground whatsoever whether or not known to
the Landlord including but not limited to any illegality or
defect in the powers of the Tenant or the manner in which they
are exercised or the authority of the person purporting to
exercise them or any legal or other limitation disability or
incapacity of the Tenant the Guarantor shall be liable to the
Landlord as primary obligor in respect of the purported
obligations and liabilities contained in this Lease or arising
hereunder as if the same were valid and enforceable, and the
Guarantor hereby agrees to indemnify the Landlord fully in
respect of any loss suffered by the Landlord as a result of
any failure of the Tenant to carry out any such purported
obligation or liability.
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SCHEDULE 3
AGREEMENTS AND COVENANTS RELATING TO THE PROPERTY
The agreements restrictions covenants exceptions reservations and other matters
contained or referred to in the registers of title number BM88070.
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EXECUTED (but not ) /s/ Anthony Bowle
delivered until the date hereof) )
AS A DEED by )
ANTHONY BOYLE )
in the presence of: )
Signature of Witness: /s/ Peter Crowley
Name of Witness: Peter Crowley
Address: 31 Whitethorn Rd.
Dublin 14
EXECUTED (but not ) /s/ Peter Crowley
delivered until the date hereof) )
AS A DEED by )
PETER CROWLEY )
in the presence of: )
Signature of Witness: /s/ Barry Doherty
Name of Witness: Barry Doherty
Address: Pinsent-Curtis
3 Colmore Circus
Birmingham B4 6BH
EXECUTED (but not ) /s/ Michael J. McGinley
delivered until the date hereof) )
AS A DEED by )
MICHAEL McGINLEY )
in the presence of: )
Signature of Witness: /s/ Barry Doherty
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Name of Witness: Barry Doherty
Address: Pinsent-Curtis
3 Colmore Circus
Birmingham B4 6BH
EXECUTED (but not )
delivered until the date hereof) ) /s/ Gary L. Kuck
AS A DEED by )Director
CENTURION OPERATIONS LIMITED, formerly )
SIGMA WIRELESS (UK) LIMITED ) /s/ illegible
in the presence of: )Director/Secretary
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