DATED 7th January, 1998
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(1) STARGAS NOMINEES LIMITED
(2) THRUSTMASTER INC
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Counterpart/
UNDERLEASE
of Numbers 8 & 9, Admiralty Way,
Camberley, Surrey
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ROWE & MAW
20 Black Friars Lane
London EC4V 6HD
Tel: 0171-248 4282
Fax: 0171-248 2009
Ref: 296/21681.00671
INDEX TO CLAUSES
PARTICULARS OF UNDERLEASE PAGE
1. INTERPRETATION
1.1 Definitions
1.2 Index and Headings
1.3 Interpretation
2. DEMISE
3. TENANT'S COVENANTS
4. LANDLORD'S COVENANTS
5. GUARANTOR'S COVENANTS
6. TENANT'S OPTION TO DETERMINE
7. PROVISOS
8. CERTIFICATES
Schedule 1 DEMISED PREMISES AND RIGHTS
Schedule 2 EXCEPTIONS AND RESERVATIONS
Schedule 3 TENANT'S COVENANTS
1. Payment of rent
2. Payment of Interest
3. Payment of outgoings
4. Payment for services
5. Alterations
6. Repair
7. Exterior decoration
8. Interior decoration
9. Entry by Landlord and others
10. Breach of repairing covenant
11. Acts of Parliament
12. Use of Demised Premises
13. Alienation
14. Insurance
15. Easements etc.
16. Regulations
17. Information
18. Display of signs
19. Yielding up
20. Removal of fixtures etc.
21. Indemnity
22. Costs
23. Value Added Tax
SCHEDULE 4 LANDLORD'S COVENANTS
1. Quiet enjoyment
2. Insurance
3. Services
4. Failure of services
5. Headlease
SCHEDULE 5 GUARANTOR'S COVENANTS
1. Guarantee
2. Continuing Guarantee
3. Forebearance and delay
4. Primary obligations
5. Indemnity
6. Set off and counterclaim
7. Rights against Tenant
8. Enforcement of Guarantee
9. To accept a New Lease
10. Unconditional Guarantee
11. No assignment of benefit necessary
12. Duration of Guarantee
13. Authorised Guarantee Agreement
14. General
SCHEDULE 6 PROVISOS
1. Re-entry
2. Avoidance of waiver
3. Compensation
4. Cesser of rent
5. Rent from third party
6. Effect on other property
7. Additional rights
8. Interruption of services
9. Notices
10. Landlord's licence or consent
11. Arbitration
SCHEDULE 7 REVIEW OF BASIC RENT
1. Definitions
2. Review
3. Ascertainment
4. Payment of increase
5. Statutory restrictions
6. Record of review
7. Review frequency on renewal
SCHEDULE 8 SERVICE CONTRIBUTION
1. Ascertainment of Estate Costs
2. Notification of Estate Costs
3. Service Contribution account
4. Balancing charge
5. Inspection
PARTICULARS OF UNDERLEASE
H M LAND REGISTRY LAND REGISTRATION ACTS 1925-71
UNDERLEASE
COUNTIES - Surrey
Hampshire
DISTRICTS - Surrey Heath
Rushmoor
FREEHOLD TITLE NUMBERS - SY487805
SY490338
HEADLEASEHOLD TITLE NUMBER - SY494942
PROPERTY - Numbers 8 and 9
Admiralty Way
Camberley Surrey
DATE - 7th January 1998
LANDLORD - STARGAS NOMINEES LIMITED whose
registered office is at 100 Thames
Valley Park Drive, Reading,
Berkshire
TENANT - THRUSTMASTER INC a company
incorporated in the State of Oregon
United States of America whose
registered office is at 7175 NW
Evergreen Parkway #400, Hillsboro,
OR 97124 USA (company registration
no. FC020132) whose address in
England for service is at Unit 8
Station Road Industrial Estate
Oxford Road Wokingham Berks
GUARANTOR - None
DEMISED PREMISES - Numbers 8 and 9, Admiralty Way,
Camberley, Surrey more particularly
described in the First Schedule
together with the rights more
particularly described in the First
Schedule
PLAN - Drawing number BG/N103/10/08/06/3A
on scale 1:1250 and drawing number
BG/N103/10/08/06/4A on scale 1:500
DESIGNATED PARKING AREA - Parking Area 4 and 5 and Service
Area 2
INITIAL NUMBER OF PARKING SPACES - Thirty (30)
DESIGNATED SERVICE AREA - Service Area 2
TERM - Ten years commencing the 29th day
of August 1997, subject to Clause 6
INITIAL RENT - (a) during the first year of the
Term the rent of Eighty-one
thousand two hundred and fifty
pounds (L81,250) per annum; and
2
(b) thereafter the rent of One
hundred and five thousand
pounds (L105,000) per annum
MARKET RENT -
RENT COMMENCEMENT DATE - 1st March 1998
RENT PAYMENT DATES - usual quarter days
SERVICE CONTRIBUTION - 6.66 per cent of the Estate Costs
ACCOUNTING PERIOD - 1st January to 31st December or as
otherwise specified by the Landlord
from time to time
ADVANCE PAYMENT DATES - usual quarter days
ETERNAL DECORATION PERIODS - From March to October in the years
2000, 2003 and 2006
INTERNAL DECORATION PERIODS - During the year 2002
PERMITTED USER - either as a light industrial
building within Class B2 or as a
warehouse or repository within
Class B8 of the Town & Country
Planning (Use Classes) Order 1987
3
THIS UNDERLEASE is made on the date stated in the Particulars
BETWEEN
(1) The Landlord
(2) The Tenant and
(3) The Guarantor (if any)
WITNESSES:
1. INTERPRETATION AND DEFINITIONS
1.1 DEFINITIONS
Unless the context otherwise requires the following terms and definitions
shall apply in the interpretation of this Underlease
"ACCESS ROAD" means Admiralty Way;
"ACCOUNTING PERIOD" means a period of twelve consecutive months commencing
and terminating as specified in the Particulars;
"ACT OF PARLIAMENT" means any public or private acts and whether referred
to generically or specified by name includes any modification or
re-enactment of them from time to time in force and any order regulation
by-law direction or licence made or issued under or pursuant to any of
them and any provision or requirement of any of them or deriving validity
from any of them;
"ADDITIONAL RENT" means those sums payable by the Tenant in respect of
insurance and services;
"ADVANCE PAYMENTS" means fair and reasonable payments specified from time
to time by the Landlord to be made by the Tenant in advance on account of
the Service Contribution;
"ADVANCE PAYMENT DATES" means the dates specified in the Particulars on
which the Advance Payments are to be made;
"BALANCING CHARGE PAYMENT DATE" means the date fourteen days after
submission by the Landlord of the account of the Service Contribution;
4
"BASIC RENT" means the Initial Rent and the Market Rent but excludes the
Additional Rent;
"DEMISED PREMISES" means the property or any part of it and all additions
alterations and improvements to it and Landlord's fixtures and fittings
from time to time in or about the property short details of which are
specified in the Particulars and which is more particularly described in
Schedule 1;
"DESIGNATED PARKING AREA" means the parking area specified in the
Particulars and designated numerically on the Plan;
"DESIGNATED SERVICE AREA" means the service area specified in the
Particulars and designated numerically on the Plan;
"DEVELOPMENT" bears the same meaning as defined in the Planning Acts;
"ENVIRONMENT" means air, controlled waters (as defined in the Water
Resources Act 1991) or land;
"ESTATE COSTS" means the expenditure incurred for the purposes of the
Landlord's Estate in any Accounting Period;
"EXCEPTIONS AND RESERVATIONS" means those matters excepted from or
reserved out of the demise granted by this Underlease more particularly
described in Schedule 2;
"EXTERNAL DECORATION PERIODS" means those periods specified in the
Particulars during which the Tenant is to effect decoration of the
exterior of the Demised Premises;
"FULL REINSTATEMENT VALUE" means the cost anticipated by the Landlord
from time to time of reinstating the Demised Premises in accordance with
the provisions of this Underlease including:
(a) costs of demolition and site clearance;
(b) incidental costs consequent upon rebuilding or reinstatement;
(c) architects' surveyors' and other professional fees; and
(d) Value Added Tax;
5
"GUARANTOR" means the person (if any) so specified in the Particulars and
includes any successor in title or permitted assign and, in the case of
an individual, his personal representatives;
"HAZARDOUS SUBSTANCES" means any dangerous, hazardous, toxic or flammable
substances, materials or pollutants, effluents, contaminants, oils,
petroleum and petroleum products which have resulted in or may result in
the pollution or contamination of the Environment or harm to the health
of any human or other living organism;
"HEAD LANDLORD" means BG plc whose registered office is situate at
100 Thames Valley Park Drive, Reading, Berkshire and includes the person
persons or corporation entitled to the reversion immediately expectant on
the determination of the term granted by the Headlease;
"HEADLEASE" means the Lease dated the 9th day of October 1980 made
between British Gas Corporation (1) and Midland Bank Trust Company
Limited (2) the reversion immediately expectant upon the determination of
which is now vested in the Head Landlord and the term of which is now
vested in the Landlord and by virtue of which the Landlord holds the
Demised Premises and the remainder of the Landlord's Estate;
"INITIAL RENT" means the rent payable by the Tenant from the Rent
Commencement Date to the day before the first Review Date the amount of
which is specified in the Particulars;
"INSURANCE CONTRIBUTION" means a sum equivalent to the costs incurred
from time to time by the Landlord in effecting and maintaining insurance
in accordance with the Landlord's covenant attributable to the Demised
Premises being the aggregate of:
(a) the due proportion certified as such by the Landlord from time to time
attributable to the Demised Premises of the costs incurred from time
to time by the Landlord in effecting and maintaining insurance of the
Landlord's Estate; and
(b) any additional cost payable by the Landlord in respect of insurance
consequent on any particular requirement of the Tenant in connection
with the Demised Premises or the Permitted User;
(c) any tax on insurance premiums; and
6
(d) any sum incurred by the Landlord in connection with valuation of the
Demised Premises for insurance or otherwise in connection with the
insurance of the Demised Premises;
"INSURED RISKS" means the risks included in any policy of insurance
effected in connection with this Underlease being those in respect of
loss or damage by:
(a) fire or explosion;
(b) non-enemy aircraft or other aerial devices or articles dropped from
them;
(c) earthquake;
(d) riot, civil commotion or malicious persons;
(e) lightning or storm;
(f) flood, bursting or overflowing of water tanks apparatus or pipes;
(g) impact by vehicles;
(h) two years' loss of Basic Rent and Additional Rent in an amount to
take into account potential increases in Basic Rent resulting from a
rent review or such higher amount as the Tenant shall require by
written notice to the Landlord; and
(i) such other risks (including terrorism) as may be deemed necessary or
appropriate from time to time by the Landlord;
"INSURER" means the insurance office or underwriter with which the
Landlord effects insurance cover against the Insured Risks;
"INTEREST" means interest payable;
(a) at a rate of four pounds per centum above the base lending rate from
time to time of the Midland Bank Public Limited Company; or
(b) at a rate of four pounds per centum per annum above any rate
replacing or superseding the same; or
(c) in the event that any such rate as aforesaid shall be abolished
without replacement or substitution at a rate of four pounds per
centum per annum
7
above the rate specified from time to time by the Regulations made
pursuant to section 32 of the Land Compensation Act 1961;
calculated on a day to day basis and compounded at intervals of three
months after the date on which it became payable;
"INTERNAL DECORATION PERIODS" means those periods specified in the
Particulars during which the Tenant is to effect decoration of the
interior of the Demised Premises;
"LANDLORD" means the person so specified in the Particulars and
includes the person for the time being entitled to the reversion
immediately expectant upon the determination of the Term and where any
right is reserved or granted to the Landlord or any obligation of the
Landlord is to be preformed shall be deemed to include any servant,
agent, contractor or other person employed or engaged by or on behalf
of the Landlord;
"LANDLORD'S ESTATE" means the property demised to the Landlord by the
Headlease shown on the Plan by a stippled verge line;
"MARKET RENT" means the rent payable by the Tenant during the periods
between the Review Date and the determination of the Term which is more
particularly defined in and is to be ascertained in accordance with the
provisions of Schedule 7;
"PARTICULARS" means the Particulars forming part of this Underlease;
"PERMITTED USER" means the use to be made by the Tenant of the Demised
Premises which is specified in the Particulars;
"PLAN" means the drawings specified in the Particulars or any one or any
combination of them;
"PLANNING ACTS" means the Town and Country Planning Act 1990, the
Planning (Hazardous Substances) Act 1990, the Planning (Listed Buildings
and Conservation Areas) and the Planning and Compensation Act 1991 or
any statutory modification or re-enactment of any of them for the time
being in force and any regulations or orders made or having effect under
them;
"PLANNING PERMISSION" means any permission, consent or approval (whether
conditional or otherwise) granted or deemed to be granted under the
Planning Acts;
8
"REGULATIONS" means any rules which may be made from time to time by the
Landlord in accordance with the principles of good estate management in
relation to the Landlord's Estate and notified in writing to the Tenant;
"RENT COMMENCEMENT DATE" means the date so specified in the Particulars
on which the Basic Rent first becomes payable;
"RENT PAYMENT DATES" means the dates specified in the Particulars on which
the Basic Rent is to be paid;
"REVIEW DATE" means 29th August 2002
or such other dates as are days upon which the rent reserved by this
Underlease is subject to review in accordance with the provisions of
Schedule 7;
"SERVICE CONTRIBUTION" means the due proportion attributable to the
Demised Premises of the Estate Costs payable to the Landlord by the
Tenant in accordance with the provisions of clause 2(d) and Schedule 8
and expressed in the Particulars as a percentage;
"SERVICE MEDIA" means watercourses, gutters, downspouts, sewers, drains,
pipes, wires, cables, conduits, ducts, flues, vents, sprinklers and any
other media for the provision of services of whatever description and
includes any apparatus connected to them other than Tenant's fixtures
and fittings now or in the future to be constructed or installed;
"TENANT" means the underlessee of this Underlease specified in the
Particulars and shall include any successors in title and permitted
assigns and, in the case of an individual, his personal
representatives;
"TERM" means, subject to Clause 6, the term of years granted by this
Underlease commencing and terminating (if by effluxion of time) on the
dates specified in the Particulars and includes any statutory
continuation of it and any period after the specified date of
determination during which the Tenant holds over;
"THIS UNDERLEASE" means this Underlease and any documents supplemental
to it or entered into pursuant to its terms;
"UNDERLEASE PROVISIONS" means the Tenant's covenants and the conditions
and provisions agreements and declarations contained in this Underlease;
9
"UTILITIES" means surface water, soil, gas, electricity, water supply,
telephone, telex and other electrical impulses, light impulses, heating,
ventilation, air conditioning, smoke, fumes and any other facility of
whatever description;
"VAT ACT" the Value Added Taxes Act 1994;
"VAT ELECTION" means an election to waive exemption from Value Added Tax in
respect of the Demised Premises;
"VAT SUPPLY" the meaning which "supply" has for the purpose of the VAT Act;
"WASTE" means any Hazardous Substances or matter containing a Hazardous
Substance which constitutes scrap material or an effluent or other unwanted
surplus substance arising from the application of any process and any
substance or article containing Hazardous Substances which requires to be
disposed of as being broken, worn out, contaminated or otherwise spoiled.
1.2 INDEX AND HEADINGS
The index and headings are included for ease of reference only and do not
affect the interpretation or construction of this Underlease.
1.3 INTERPRETATION
In this Underlease, unless the context requires otherwise, any reference
to:
(a) a "party" or "the parties" is to a party or the parties, as the case
may be, to this Underlease;
(b) a Clause or a Schedule is to a clause of or a schedule to this
Underlease, as the case may be and a paragraph is to a paragraph of
the Schedule in which that reference appears;
(c) "this Underlease" includes the Schedules, which form part of the
Underlease for all purposes;
(d) a statute or statutory provision includes any consolidation,
re-enactment, modification or replacement of the same, any statute or
statutory provision of which it is a consolidation, re-enactment or
replacement and any subordinate legislation in force under any of the
same from time to time;
(e) the masculine, feminine or neuter gender respectively includes the
other genders, references to the singular include the plural, and vice
versa, and
10
references to persons include firms, corporations and unincorporated
associations and bodies;
(f) consent includes any other form of licence, permission, approval or
authorisation;
(g) the Demised Premises includes any part of the Demised Premises;
(h) neighbouring premises includes any premises adjoining, adjacent to or
in the vicinity of the Demised Premises;
(i) value added tax includes any substituted or similar tax;
(j) any covenants or obligation by or of the Tenant not to do or omit to
be done any act matter or thing shall be deemed to include an
obligation not to permit or suffer such act, matter or thing to be
done or not to permit or suffer the omission of such act, matter or
thing as the case may be;
(k) periods of time expressed by reference to:
(i) a number of days are to be computed on the basis of consecutive
not working days
(ii) a number of months are to be computed on the basis of calendar
months;
(l) any agreement, covenant, representation, warranty, acknowledgement or
undertaking in this Underlease on the part of two or more person is
made or given by such persons jointly and severally.
2. DEMISE
In consideration of the rents reserved by this Underlease and of the
covenants by the Tenant and by the Guarantor (if any) contained in this
Underlease the Landlord HEREBY DEMISES to the Tenant the Demised Premises
excepting and reserving the Exceptions and Reservations.
TO HOLD unto the Tenant for the Term subject to Clause 6.
YIELDING AND PAYING to the Landlord (whether or not demanded) yearly during
the Term and proportionately for any part of a year without deduction and
subject to the provisions for the payment of Interest contained in this
Underlease:
11
(a) on and from the Rent Commencement Date until the day preceding the
first Review Date the Initial Rent;
(b) on and from each Review Date until the day preceding the Review
Date next following the greater of:
(i) the Market Rent assessed in relation to the Review Date
in question; or
(ii) the Basic Rent (disregarding any cesser or abatement of
rent) payable for the period immediately preceding the
Review Date in question
such Basic Rents shall be paid by equal quarterly payments in
advance on the Rent Payment Dates.
AND ALSO PAYING by way of Additional Rent:
(c) the Insurance Contribution to be paid within fourteen days of
demand;
(d) the Service Contribution to be paid on the Advance Payment Dates
and the Balancing Charge Payment Date.
The first proportion of any Basic Rent from the Rent Commencement Date to
the respective payment dates next following shall be paid on or before
the Rent Commencement Date.
The proportion of Additional Rent from the commencement of the Term to
the payment date next following the date of this Underlease shall be
paid on demand.
3. TENANT'S COVENANTS
The Tenant HEREBY COVENANTS with the Landlord as set out in Schedule 3.
4. LANDLORD'S COVENANTS
The Landlord HEREBY COVENANTS with the Tenant as set out in Schedule 4.
5. GUARANTOR'S COVENANTS
In consideration of this Underlease having been granted at its request the
Guarantor (if any) HEREBY COVENANTS with the Landlord as set out in
Schedule 5.
12
6. TENANT'S OPTION TO DETERMINE
If the Tenant wishes to determine this Underlease upon the 29th August
2002 and provided that:
(a) the Tenant gives to the Landlord not less than six months' prior
notice in writing of its wish so to do; and
(b) upon the 29th August 2002 gives vacant possession to the Landlord
free from any sub-tenancies;
then upon the 29th August 2002 this Underlease and everything contained
within it shall cease and be void but without prejudice to the rights
and remedies of either party against the other in respect of any
antecedent claim or breach of covenant.
Time shall be of the essence for the performance of all the requirements of
this paragraphs (a) and (b) of this Clause 6.
7. PROVISOS
Provided always and it is hereby agreed and declared between the parties
as set out in Schedule 6.
8. CERTIFICATES
8.1 This Underlease is not made in pursuance of an agreement for lease.
8.2 This Underlease is a new tenancy within Section 1 of the Landlord and
Tenant (Covenants) Act 1995.
9. JURISDICTION
9.1 DOMESTIC JURISDICTION
This deed shall be construed in accordance with English law and the
parties irrevocably submit to the exclusive jurisdiction of the English
courts to settle any disputes which may arise in connection with this
deed.
9.2 SERVICE OF PROCEEDINGS
(1) Proceedings and Notices may be served upon the Tenant at the Demised
Premises or the Address in England Stated in the Particulars.
13
(2) If for any reason the Tenant ceases to maintain an address for service in
England and Wales the Tenant shall promptly appoint an agent for service
of process in England and notify the Landlord of the appointment and the
new agent's name and address. If the Tenant does not make such an
appointment within seven days of such cessation, then the Landlord may do
so on its behalf and shall notify the Tenant if it does so.
IN WITNESS whereof the parties hereto have executed this Underlease which is
delivered on the date stated in the Particulars.
SCHEDULE 1
(DEMISED PREMISES AND RIGHTS)
All that land together with the building on it or on some part of it and all
additions or improvements made to it or replacement of it and the
Landlord's fixtures and fittings on or about it now or at any time during the
Term forming part of the Landlord's Estate and known by the address specified
in the Particulars and shown edged red on the Plan. The walls or structures
separating one unit from the next shall be party walls or structures severed
medially.
TOGETHER WITH the following rights in common with all others having the like
right:
1. To pass and repass on foot only over and along the footways on the
Landlord's Estate leading to and from the Demised Premises.
2. To pass and repass on foot or with vehicles over and along the Designated
Service Area for the purposes of access to and egress from the Demised
Premises.
3. To the passage and running through the Service Media on or under the
remainder of the Landlord's Estate of utilities and any other facility for
which provision may be made in respect of the Demised Premises from time to
time.
4. To use no more than the number of parking spaces in the Designated Parking
Area specified in the Particulars for the purpose of parking cycles, cars
and vans not exceeding 15 cwt unladen weight in connection with the
Permitted User and enjoyment of the Demised Premises PROVIDED THAT
subject to the number of parking spaces remaining constant the location
and any marking of individual parking spaces may be varied from time to
time by the Landlord for the better management of the Landlord's Estate by
Regulations or otherwise.
5. To use that part of the Designated Service Area contiguous to the Demised
Premises for the purposes of loading and unloading goods to and from the
Demised Premises.
14
Schedule 2
SCHEDULE 2
(EXCEPTIONS AND RESERVATIONS)
The following rights are excepted and reserved from the Demised Premises for
the benefit of the Landlord, the Head Landlord, the Landlord's Estate, the
tenants of the Landlord on the Landlord's Estate and their respective
successors in title, permitted assigns and permitted subtenants:
1. To the passage and running through the Service Media in on or under the
Demised Premises to and from the remainder of the Landlord's Estate and
any adjoining or neighbouring property of the Utilities and for any person
affected by such Service Media or Utilities after at least five days'
written notice to the Tenant (but in case of emergency at any time
without notice) to enter the Demised Premises for the purpose of
constructing, repairing and renewing the same the person exercising such
right forthwith making good all damage caused by such entry except insofar
as such entry may be necessitated by any act or default of the Tenant.
2. To rebuild or alter any of the adjoining or neighbouring buildings or to
erect any new buildings (whether or not such buildings may be on the
Landlord's Estate) notwithstanding any interference thereby occasioned to
the access of light or air to the Demised Premises.
3. To make such alterations to the Access Road, footpaths and parking and
service areas as may be required in connection with any repositioning of
them or in order to link the same to any new access road or in connection
with any replanning of the public highways.
4. At all reasonable times after at least five days' written notice to the
Tenant (but in case of emergency at any time without notice) to enter and
remain upon the Demised Premises for the purposes of constructing,
repairing, maintaining, altering, cleansing examining or testing any
adjoining premises and its Service Media or to cleanse empty and repair any
such Service Media the person exercising such right forthwith making good
all damage thereby caused to the Demised Premises and causing as little
disturbance as possible to the Tenant.
5. All rights, easements, quasi-easements and privileges to which the Demised
Premises are or may be subject.
SCHEDULE 3
15
Schedule 3
(TENANT'S COVENANTS)
1. PAYMENT OF RENT
To pay the Basic Rent and Additional Rent on the Rent Payment Dates,
Advance Payment Dates and Balancing Charge Payment Date without any
deduction, abatement, counterclaim or set-off whatsoever except for
such as the Tenant may be required to make in compliance with any
Act of Parliament.
2. PAYMENT OF INTEREST
To pay Interest upon any Basic Rent or Additional Rent unpaid on the
relevant payment date on and from the relevant Rent Payment Date,
Advance Payment Date or Balancing Charge Payment Date up to and
including the actual date of payment. Interest shall be payable
notwithstanding that the Landlord refuses to accept Basic Rent or
Additional Rent to prevent the waiver of any breach of covenant by
the Tenant.
3. PAYMENT OF OUTGOINGS
To pay and discharge all general and water rates, taxes, duties,
charges, assessments, impositions and outgoings whether
parliamentary, parochial, local or of any other description which
are now or at any time may be taxed, charged or imposed upon or
payable in respect of the Demised Premises or on the owner or
occupier in respect of them and to pay or indemnify the Landlord
against the payment of a fair or due proportion of any such
outgoings payable in respect of the Demised Premises in conjunction
with any other part of the Landlord's Estate or with any adjoining
or neighbouring property or upon the Tenant in conjunction with the
respective owners tenants or occupiers thereof PROVIDED ALWAYS that
this paragraph 3 shall not oblige the Tenant to pay any tax or duty
which the Landlord or Head Landlord are personally liable to pay as
a result of this demise or of any dealing by the Landlord or the
Head Landlord in their respective reversionary interests or of the
receipt by the Landlord of any rent or other monies under this
Underlease.
4. PAYMENT FOR UTILITIES
To pay for all gas, water, electricity, telephone, telex and other
services of whatever description used, consumed or employed in or on
the Demised Premises during the Term.
16
Schedule 3
5. ALTERATIONS
5.1.1 Not to:
(a) cut, maim, alter or remove any or any part of the principal
structure, beams, columns, roofs, walls or other structural parts
of the Demised Premises; or
(b) affect, alter or modify the layout, elevation or external
appearance of the Demised Premises; or
(c) make any structural erection, addition or alterations to the
Demised Premises either externally or internally; or
(d) carry out any Development on or to the Demised Premises.
5.1.2 Not without the previous licence under seal of the Landlord nor
except in accordance with plans, drawings, specifications, schedules
and quantities previously submitted in sextuplicate to and approved
by the Landlord to carry out any non-structural alterations to the
Demised Premises.
5.1.3 If the Landlord shall consent to any such additions or alterations
then unless waived by the Landlord in writing, at the expiration or
sooner determination of the Term the Tenant shall at its own expense
reinstate the Demised Premises to the Landlord's satisfaction.
5.1.4 The Tenant may install, alter or remove demountable partitioning in
the Demised Premises without the consent of the Landlord.
5.2 To obtain all other licences, approvals, permissions and consents
required for the commencement and execution of any such works
permitted by the Landlord and to produce the same together with all
other related documents for the approval of the Landlord together
with two copies of every such licence, approval, permission or
consent for the Landlord's retention PROVIDED THAT:
(a) the Landlord shall be deemed to have given such approval if it
has not notified the Tenant to the contrary by the twenty-eighth
day after receipt of such licence, approval, permission or
consent;
(b) the Landlord may refuse to give its approval to any such
licence, approval, permission or consent on any of the following
grounds;
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Schedule 3
(i) any condition contained in it or omitted from it or the
period of it would be or be likely to be prejudicial to its
interest in the Demised Premises or other adjoining or
adjacent property of the Landlord whether during the Term or
following the determination or expiration of the Term;
(ii) it may result in the imposition on the Landlord of a tax
charge or other payment;
(iii) the approval of the Head Landlord has been refused.
5.3 To carry out any such works at the expense in all respects of the
Tenant and fully in compliance with all licences, approvals,
permissions and consents in a good and workmanlike manner to the
reasonable satisfaction of the Landlord.
5.4 To permit the Landlord to enter upon the Demised Premises at all
reasonable times to view the state and condition of any such works
and to comply forthwith with any requirement of the Landlord
consequent thereon.
5.5 If in breach of the covenants contained in this Underlease the
Tenant shall erect or allow to be erected any other building or any
structure or apparatus on the Demised Premises or make or allow to
be made any alterations or additions to the Demised Premises or
server or remove the Landlord's fixtures and fittings or cut into or
damage or allow to be damaged the Demised Premises then immediately
upon notice in writing from the Landlord requiring it so to do to
remove all such new buildings structures apparatus alterations or
additions and/or replace any such Landlord's fixtures and fittings
and make good and restore the Demised Premises to their state and
condition existing before the breach of such covenant by the Tenant
and if the Tenant shall neglect so to do within fourteen days after
such notice then the Landlord shall be entitled to enter upon the
Demised Premises to remove such new buildings, structure, apparatus,
alteration or addition and replace any such Landlord's fixtures and
fittings and make good and restore the Demised Premises to the state
and condition existing before the breach of covenant by the Tenant.
5.6 Not without the prior written consent of the Landlord and in
compliance in all respects with any relevant Act of Parliament and
the regulations, terms and conditions of any body or institution
(whether statutory or non-statutory) competent in that behalf to
install in or upon the Demised Premises any fuel burning apparatus
or make any addition or alteration to any of the Service Media
serving the Demised Premises or the Landlord's Estate.
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Schedule 3
5.7 Not to suspend from the ceilings, roof or main structure of the
Demised Premises any excessive weight nor load or use the floor or
structure of the Demised Premises in any manner which will in any
way impose a weight or strain in excess of that which such
components are constructed to bear with due margin for safety or
which will any way strain or interfere with the main structure.
6. REPAIR
Save in respect of any damage or loss arising from the occurrence of
any of the Insured Risks (except to the extent that the insurance
shall have been vitiated by the act or default of the Tenant) to
repair, cleanse, maintain amend and keep the Demised Premises and
the portions of all party walls and structures attributable to the
Demised Premises in good and substantial repair and maintained,
cleansed and amended in every respect notwithstanding that any want
of repair may be due to wear and tear or deterioration or otherwise
and at the direction of the Landlord to join with the tenant or
occupier of the premises to which another portion of such party wall
or structure is attributable in carrying out and completing any
requisite rebuilding, repairing or cleansing. As often as any
Landlord's fixtures belonging to the Demised Premises shall so
require to renew the same with other fixtures of a similar
description quality and value to the reasonable satisfaction of the
Landlord PROVIDED ALWAYS that if the Tenant shall desire to replace
the same with fixtures of a different description quality or value
the Tenant shall produce to the Landlord for approval full
particulars of such fixtures and shall not install such fixtures
without the prior written consent of the Landlord.
7. EXTERIOR DECORATION
During the External Decoration Periods and also in the last year of
the Term should this Underlease determine otherwise than by
effluxion of time to paint or otherwise treat as the case may be in
a good and workmanlike manner with materials of good quality and of
types previously approved in writing by the Landlord and with no
changes in colours all external parts of the Demised Premises
previously or usually requiring to be painted or otherwise treated.
Also as often as in the opinion of the Landlord shall be reasonably
necessary (but not more often than once in every five years) to
clean, wash down or otherwise treat as may be appropriate according
to the materials used all exterior stone, concrete and fiberglass or
other finishes to the exterior of the Demised Premises to the
reasonable satisfaction of the Landlord. As often as the Landlord
may require (but not more often than once in every month) to clean
the glass of the Demised Premises.
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Schedule 3
8. INTERIOR DECORATION
During the Internal Decoration Periods and also in the last year of
the Term should this Underlease determine otherwise than by effluxion
of time to paint with at least two coats, redecorate, paper, repaper
or otherwise treat as the case may be in a good and workmanlike manner
with materials of good quality all internal parts of the Demised
Premises previously or usually so treated or which require painting or
other treatment for their proper maintenance, preservation or
appearance and to wash down any tiles, glazed bricks and similar
washable surfaces PROVIDED THAT the Tenant will obtain the written
consent of the Landlord to the type of materials and colours to be
used during the final Internal Decoration Period or during the last
year of the Term as the case may be.
9. ENTRY BY LANDLORD AND OTHERS
9.1 To permit the Landlord at all reasonable hours during the daytime on
reasonable prior notice (but in case of emergency at any time without
notice) to enter the Demised Premises to:
(a) ensure that nothing has been done upon the Demised Premises that
constitutes a breach of any of the Tenant's covenants;
(b) view and examine the state and condition of the Demised Premises;
(c) take inventories of the fixtures and fitting in the Demised
Premises;
(d) execute any improvement it may undertake to execute;
(e) make any inspection which may be required for the purpose of the
Landlord and Tenant Acts 1927 and 1954 or any other Act of
Parliament for the time being affecting the Demised Premises;
(f) execute repairs to the Demised Premises for which the Landlord is
responsible or repairs or alterations to any adjoining premises
if such repairs or alterations cannot be executed conveniently
without entering the Demised Premises; or
(g) empty, cleanse, renew or repair any of the Service Media
belonging to the Demised Premises or any such adjoining premises
as often as occasion shall require the Landlord making good as
soon as practicable in a reasonable manner any damage thereby
occasioned and causing no unnecessary damage or disturbance.
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Schedule 3
9.2 To permit the Landlord or any tenant or occupier of any adjoining or
adjacent property authorised in writing by the Landlord and their
servants, agents and workmen at all reasonable times on reasonable
prior written notice (but in the case of emergency at any time without
notice) to enter upon the Demised Premises to:
(a) execute repairs, alterations, painting, redecoration or other
works to any adjoining property; or
(b) construct, lay down, connect, alter, repair, cleanse or maintain
any of the Service Media in or under the Demised Premises for the
accommodation of any adjoining or adjacent property;
the person or persons exercising such right making good all damage
thereby occasioned to the Demised Premises and causing as little
disturbance as possible to the Tenant and in case of dispute or
controversy with such tenant or occupier relating to any Service Media
or to any easements or privileges whatsoever affecting or relating to
the Demised Premises or any adjoining or adjacent property to allow
the same to be settled by and abide by the determination of the
Landlord's Surveyor in such manner as he shall direct in writing.
10. BREACH OF REPAIRING COVENANT
10.1 To repair and make good all breaches of the Tenant's covenants,
defects and wants of reparation for which the Tenant may be liable of
which notice shall have been given by the Landlord to the Tenant
within the time stipulated in such notice and if the Tenant shall fail
to perform any of its covenants relating to the repair, decoration,
cleansing or condition of the Demised Premises the Landlord shall be
entitled (but without prejudice to the right of re-entry contained in
this Underlease) to enter upon the Demised Premises and at the expense
of the Tenant to carry out such repairs, cleansing or decoration in
accordance with such covenants.
10.2 If and when called upon so to do to produce to the Landlord all
documents and other evidence which the Landlord may reasonably require
in order to satisfy the Landlord that the Tenant has performed and
observed its covenants in this Underlease.
11. ACTS OF PARLIAMENT
11.1.1 Subject to the provisions of paragraph 11.1.2, at all times during the
Term to observe and comply in all respects with every Act of
Parliament and in particular but without prejudice to the generality
of the foregoing the:
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Schedule 3
1.1 Clean Air Act 1993;
1.2 Control of Pollution Act 1974;
1.3 Factories Act 1961;
1.4 Fire Precautions Act 1971;
1.5 Health and Safety at Work etc. Act 1974;
1.6 Landlord and Tenants Acts 1927 and 1954;
1.7 Offices Shops and Railway Premises Act 1963;
1.8 Public Health Acts 1936 and 1961;
1.9 The Planning Acts;
1.10 The Environmental Protection Act 1990, Water Resources Act
1991 and Environment Act 1995;
or the requirements of any competent person, body or authority so
far as they relate to or affect the Demised Premises, the Permitted
User or the use or employment the Demised Premises in of any
person, fixture or fitting, plant, machinery or chattel and to
execute all works and provide and maintain all arrangements which
may be directed or required in respect of such matters whether by
the Landlord or the Tenant, and to indemnify the Landlord at all
times against all costs, charges and expenses of or incidental to
the execution of any such works or the provision or maintenance of
any such arrangement and not at any time to do or omit or suffer
to be done or omitted any act or thing by reason of which under any
Act of Parliament the Landlord may incur or have imposed upon it or
become liable to pay any penalty, damages, compensation, costs,
levy, charges or expenses PROVIDED ALWAYS that compliance with all
Acts of Parliament shall not relieve the Tenant from procuring all
necessary licences, consents, permissions or approvals required by
this Underlease.
11.1.2 The Tenant shall not be required to take any action or to carry out
any works to prevent, remedy or clean up any pollution or
contamination of the Environment with hazardous Substances and/or
Waste where such Hazardous Substances and/or Waste were in
existence upon the Demised Premises prior to the date of this
Lease. The Tenant shall not be relieved from liability where in
order to prevent, remedy or clean up Hazardous Substances and/or
Waste in existence upon the Demised Premises after the date of this
Lease the Tenant shall also of necessity be obliged to prevent,
remedy
22
or clean-up Hazardous Substances and/or Waste in existence upon the
Demised Premises prior to the date of this Lease.
11.2.1 To give to the Landlord, within seven days of the receipt by the
Tenant, a true copy of any permission, notice (whether formal or
informal), order, direction, complaint, enquiry, request for
information or other communication or proposal for any such
affecting the Demised Premises made, given or issued to the Tenant
by any government department, local or public authority, factory
inspector or other competent person or body by virtue of any Act of
Parliament.
11.2.2 Without delay to take all requisite steps at the expense of the
Tenant to comply with any such notice, order or direction or, where
the premises affected thereby are sub-let, to procure compliance by
the sublessee.
11.2.3 At the request of the Landlord to make or join with the Landlord in
making such objects or representations against or in respect of any
such notice order proposal or direction as the Landlord shall deem
expedient.
11.3.1 To comply in all respects with the provisions and requirements of
the Planning Acts any agreement entered into pursuant to the
Planning Acts and all Planning Permissions so far as the same
relate to or affect:
(a) the Demised Premises;
(b) any operations, works, acts or things at any time carried out
or omitted on the Demised Premises; or
(c) the Permitted User.
11.3.2 As often as occasion shall require at the expense in all respects
of the Tenant to obtain all such planning permissions and serve all
such notices as may be required for the carrying out of any
operations by the Tenant on the Demised Premises or the institution
or continuance on them of any use which may constitute Development.
11.3.3 Subject only to any statutory direction to the contrary to pay and
satisfy any charge or levy imposed or payable in respect of the
carrying out or maintenance of any such operations or the
institution or continuance of any such use and to indemnify the
Landlord against any liability whether by way of tax or otherwise
which may arise by reason thereof.
11.3.4 Notwithstanding any consent which may be granted by the Landlord
under this Underlease not to carry out or make any alteration or
addition to the Demised
23
Schedule 3
Premises or any change in the Permitted User before all such notices
and all such necessary planning permissions have been produced to
the Landlord in accordance with paragraph 5.2. of this Schedule 3.
11.3.5 Unless the Landlord otherwise directs, to carry out and complete
before the expiration or sooner determination of the Term:
(a) any works required to be carried out to the Demised Premises as
a condition of any Planning Permission implemented before such
expiration or determination; and
(b) any Development begun upon the Demised Premises in respect of
which the Landlord shall or may be or become liable for any
tax, charge, fee or levy under the Planning Acts.
11.3.6 The Tenant shall not enter into any planning agreement or planning
obligation pursuant to Section 106 of the Town and Country Planning
Act 1990.
11.3.7 To comply with all legally enforceable requirements in relation to
means of escape from the Demised Premises in case of fire and at the
expense of the Tenant to keep the Demised Premises sufficiently
supplied and equipped with fire fighting and extinguishing apparatus
and appliances of types to be approved from time to time by the
appropriate authority and suitable in all respects to the Permitted
User which shall be open to the inspection and maintained to the
reasonable satisfaction of the Landlord (so far as not opposed to
the legal obligation of the Tenant) and not to obstruct the access
to or means of working of such apparatus and appliances in any way.
12. USE OF THE DEMISED PREMISES
12.1 Not to use the Demised Premises other than for the Permitted User.
12.2 Not to use the Demised Premises:
(a) for any illegal or immoral purpose;
(b) as a residence or sleeping place for any person;
(c) for any noisy, noxious or offensive trade or business;
(d) for any unlawful betting transaction or unlawful gaming within
the meaning of the Acts of Parliament relating to such matters
nor make any application for a
24
Schedule 3
betting office licence or a licensed registration under the
said Acts of Parliament in respect of the Demised Premises.
12.3.1 Not to do on the Demised Premises anything which shall or may be or
become or cause annoyance, nuisance, damage, inconvenience,
disturbance, injury or danger to the Landlord or the owners, tenants
or occupiers of the remainder of the Landlord's Estate or of other
premises in the neighbourhood and to keep the Landlord and the Head
Landlord fully and effectually indemnified against all actions,
proceedings, damages, costs, expenses, claims and demands whatsoever
arising out of or in consequent of any breach or non-observance of
this covenant.
12.3.2 On a written notice being served on the Tenant by the Landlord or
any competent authority requiring the abatement of any nuisance
caused by vibration, noise, offensive smell or undue emission of
smoke, fumes, vapour or dust with all reasonable dispatch after the
service of such notice to abate the same accordingly and if the
Tenant shall fail so to do then the Landlord shall be entitled to
enter upon the Demised Premises and abate such nuisance and all
costs charges and expenses incurred in so doing shall be repaid by
the Tenant to the Landlord upon demand.
12.4 Not to carry on upon the Demised Premises the manufacture or
production of any gas, electricity, steam or hot water unless for
the requirements of the Permitted User and not to supply gas,
electricity, steam or hot water to any other person.
12.5 Except with the prior written consent of the Landlord to which the
provisions of paragraph 5.2 of this Schedule 3 shall apply and
strictly in accordance with all relevant acts of Parliament, not to
keep, place, store or use in, upon or about the Demised Premises any
petrol or other highly inflammable spirit, liquor, fluid or
substance or any material of a dangerous combustible, explosive or
corrosive nature which may attack or in any way injure by
percolation, corrosion, vibration or otherwise the structure of the
Demised Premises or any other part of the Landlord's estate or the
keeping or use of which may constitute a nuisance to the occupiers
of neighbouring or adjoining premises and to comply with all the
requirements of any competent authority and of the Insurer in
respect of such matters.
12.6 Not to hold any sale by auction, public exhibition or political or
other meeting on the Demised Premises.
12.7 Not to permit oil, grease, corrosive, deleterious, objectionable,
dangerous, poisonous or explosive matters or substances to enter any
of the Service Media and to take all reasonable measures for
ensuring that any effluent discharged will not be corrosive or
25
Schedule 3
otherwise harmful or cause obstruction or deposit within any of the
Service Media, the sewage disposal works or to any sewage purification
process.
12.8 Not to:
(a) store goods or materials upon parts of the Landlord's Estate not
included in the Demised Premises;
(b) form any refuse dump or rubbish or scrap heap on the Demised
Premises or any part of the Landlord's Estate;
(c) bring or to keep upon the Demised Premises anything which is or
may become in the opinion of the Landlord untidy, unclean,
unsightly or in any way detrimental to the amenity of the
Landlord's Estate or the neighbourhood and within one month to
comply with the requirements of any written notice to restore any
amenity inured as aforesaid and in the event of the Tenant
failing to comply with such notice to permit the Landlord to
enter upon the Demised Premises and carry out any works necessary
to comply with such notice;
(d) light any fire on the Demised Premises or the remainder of the
Landlord's Estate;
12.9 to comply with the arrangements made from time to time by the Landlord
for the removal of all refuse, rubbish and scrap which may have
accumulated on the Demised Premises.
12.9.1 to keep the Demised Premises free from weeds, deposits of materials or
refuse.
13.1 ASSIGNMENT
13.1.1 Not to assign part only of the Demised Premises.
13.1.2 Not to assign the whole of the Demised Premises during the last year
of the Term.
13.1.3 If the Tenant wishes to assign the whole of the Demised Premises, as a
pre-condition of giving consent to the same the Landlord shall be
entitled to require that:
(a) the proposed assignee enters into a covenant with the Landlord
prior to the assignment to pay the rent and to observe and
perform the Underlease Provisions from the date of the assignment
until the proposed assignee is released from its obligations to
pay the rent and observe and perform the
26
Schedule 3
Underlease Provisions under Section 5(2) of the Landlord and
Tenant (Covenants) Act 1995 or, if later, under Section 11(2) of
that Act;
(b) the Tenant provides full details of the proposed assignment to
the Landlord including the amount of any fines, premiums, reverse
premiums or other financial payments or incentives and any
non-monetary incentives to be made, given, received or which are
payable in order to secure the proposed assignment;
(c) the proposed assignee provides such evidence as the Landlord any
reasonably require of its financial status and the financial
status of any guarantor of the proposed assignee;
(d) if reasonably so required by the Landlord, the Tenant (and any
guarantor for the Tenant other than by way of Authorised
Guarantee agreement), guarantees to the Landlord the observance
of the Underlease Provisions by the proposed assignee, such
guarantee to be in the form set out in Schedule 5 with such
amendments as may reasonably required to meet the particular
circumstances;
(e) if the Landlord reasonably so requires one or more guarantors
acceptable to the Landlord enter into covenants, jointly and
severally if more than one, with the Landlord. The covenants
shall:
(i) be similar to those set out in Schedule 5 with an
appropriate description of the party being guaranteed
being substituted for the expression "the Tenant";
(ii) contain such other amendments as may be appropriate to the
particular circumstances; and
(iii) be given by separate deed prepared by the Landlord at the
cost of the Tenant.
(f) the proposed assignee provides the Landlord with an address for
service in the United Kingdom in case of any breach, non
observance or non performance of the provision of this
Underlease;
(g) that the proposed assignment is completed prior to the quarter
day following the grant of the Licence to Assign.
13.1.4 Not to assign the whole of the Demised Premises but subject to
compliance with the pre-conditions in paragraph 13.1.3 the Tenant may
do so with the previous licence
27
Schedule 3
under seal of the Landlord and if so required of the Head Landlord
such licences not to be unreasonably withheld.
13.2 UNDERLETTING
13.2.1 In this Clause 13.2 the following words and expressions mean:
"PERMITTED PART" means the whole of Unit 8 or the whole of Unit 9 in
each case together with 15 car parking spaces;
"PROPER PROPORTION" means a proportion calculated by reference to
the ratio which the net internal area of the Underlet Premises bears
to the net internal area of the Demised Premises; and
"UNDERLET PREMISES" means the premises let by any underlease.
13.2.2 Not to underlet part only of the Demised Premises save for a
Permitted Part.
13.2.3 Not to underlet the whole of the Demised Premises during the last
year of the Term.
13.2.4 If the Tenant wishes to underlet as a whole the Demised Premises or
the Tenant wishes to underlet a Permitted Part then as a
pre-condition of giving consent to the same the Landlord shall be
entitled to require that:
(a) any subtenant enters into a covenant with the Landlord prior to
the grant of the sublease not to:
(i) assign, underlet or charge part only of the Underlet
Premises;
(ii) underlet, hold on trust for any party, part with
possession or grant any licence in respect of or share
the occupation of the whole or any part of the Underlet
Premises;
(iii) assign the whole of the Underlet Premises without the
prior written consent of the Landlord and of Head
Landlord if required, such consent not to be
unreasonably withheld.
(b) any underletting which may be approved by the Landlord under
the terms of this Lease shall:
(i) be without premium;
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Schedule 3
(ii) reserve a rent which is not less than the open market
rental value for the time being of the Underlet Premises
or the Proper Proportion of the Basic Rent payable under
the terms of this Underlease, whichever is the higher at
the time;
(iv) provide for rent reviews on similar terms and on the same
dates as this Underlease; and
(v) impose on the subtenant a liability to pay all sums for
which the Tenant is liable under this Underlease, other
than the Basic Rent or, in the case of an underletting of
a Permitted Part, a Proper Proportion of such sums.
(c) any subtenant or assignee of any devolutionary interest enters
into a covenant with the Landlord to observe and perform the
Underlease Provisions other than the covenant to pay the Basic
Rent, during the period from the date of the assignment or
underletting until the earlier of:
(i) the determination of the term of this Underlease or the
sublease (as the case may be);
(ii) the assignment of this Underlease or the sublease (as the
case may be) with all consents required by this
Underlease or the sublease (as the case may be); or
(iii) the date upon which the Assignee or subtenant is released
from liability by virtue of Section 11(2) of the Landlord &
Tenant (Covenants) Act 1995.
13.2.5 Without prejudice to the other provisions of this paragraph 13.2,
not to underlet the whole of the Demised Premises or underlet a
Permitted Part without the prior licence under seal of the Landlord
and if so required of the Head Landlord such licences not to be
withheld unreasonably.
13.2.6 If any undertenant wishes to assign or the Tenant wishes to underlet
the whole of the Demised Premises or a Permitted Part of the Demised
Premises, the Landlord shall, in its reasonable discretion, be
entitled to require that one or more guarantors acceptable to the
Landlord enter into covenants, jointly and severally if more than
one, with the Landlord. The covenants shall:
29
Schedule 3
(a) be similar to those set out in Schedule 5 with an appropriate
description of the party being guaranteed being substituted for
the expression "the Tenant";
(b) contain such other amendments as may be appropriate to the
particular circumstances; and
(c) be given by separate deed prepared by the Landlord at the cost
of the Tenant.
13.2.7 The Tenant shall:
(a) not at any time either expressly or by implication waive any
breach of the covenants or conditions on the part of any
subtenant or assignee of any devolutionary interest comprised
in any sublease or devolutionary interest; and
(b) enforce any breach of the same at its own cost and expense.
13.2.8 The Tenant shall:
(a) provide full information as to any sub-lettings, including
amounts of premiums, rents, rent-free periods, or other incentives
and any collateral arrangements relating to the same;
(b) procure that the rent reserved by any sublease is reviewed
strictly in accordance with the provisions of that sublease;
(c) not agree any reviewed rent with the subtenant without the
prior written consent of the Landlord, such consent not to be
unreasonably withheld;
(d) not agree the identity of any independent third party who is to
determine the revised rent of any rent review without the prior
consent of the Landlord; and
(e) procure that any representations which the Landlord may wish to
make convening the reviewed rent are put forward to such third
party at the same time as the Tenant's own.
13.3 CHARGING
Not to charge part only of the Demised Premises but without
prejudice to the rights of sub-tenants to charge the whole of the
Underlet Premises.
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Schedule 3
13.4 PARTING WITH POSSESSION
Not to part with or share possession of the whole or any part of the
Demised Premises except as permitted by this paragraph 13.
13.5 SHARING OCCUPATION
Notwithstanding anything in this paragraph 13 the Tenant, if a
company incorporated under any of the Companies Acts, shall be
entitled to share occupation of the Demised Premises with any other
member of the group, as defined in Section 42 of the Landlord and
Tenant Act 1954 as originally enacted, of which the Tenant is a
member for the time being on terms which do not create any
relationship of landlord and tenant provided that:
(a) the Tenant shall give notice to the Landlord within fourteen
days of the commencement or termination of any such arrangement;
and
(b) any such arrangement shall terminate automatically on the tenant
and any such member of the group ceasing to be members of the same
group of companies, as so defined, and the former member of the
group occupying the Demised Premises shall immediately vacate
them.
13.6 NOTICE
13.6.1 Within twenty-eight days of every assignment, assent, charge,
mortgage, transfer, underlease or devolution on death of or relating
to the Demised Premises to give written notice thereof to the
respective solicitors of the Landlord and the Head Landlord and to
furnish each of them with a certified copy of such assignment, assent,
charge, mortgage, transfer, underlease or an office Copy Probate of
the will or of the Letters of Administration as the case may be and to
pay to each of them in respect of each and every such instrument a
reasonable registration fee the amount of which shall be determined by
contemporary conveyancing practice.
13.6.2 From time to time on demand during the Term to furnish the Landlord
with full particulars of all derivative interests of or in the
Demised Premises and of or in all parts of them secretly
sublet howsoever remote or inferior including particulars of
the rents payable in respect of such derivative interests and
such further particulars as the Landlord may require.
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Schedule 3
14. INSURANCE
14.1 To notify the Landlord immediately of any circumstances or event
affecting the state condition or value of the Demised Premises or
which may give rise to a claim under any policy of insurance in
respect of the Demised Premises.
14.2 To observe all requirements of the Insurer notified to the Tenant
and to indemnify the Landlord against any breach of such requirements.
14.3 Not to do or omit or suffer to be done or omitted any act, matter or
thing whatsoever the doing or omission of which would make void or
voidable any policy of insurance on the Demised Premises, the
Landlord's Estate or the Landlord's fixtures and fittings or cause
the premiums payable in respect of any such insurance to be increased
beyond the normal rate.
14.4 In the event of the Demised Premises being destroyed or damaged by
any of the Insured Risks
(a) to give immediate notice to the Landlord forthwith upon the
Tenant becoming aware of the same.
(b) within one month of such destruction or damage, if so requested
by the Landlord, vacate and remove all tenant's fittings and
effects from the Demised Premises or such parts of them as may
be necessary to enable the Landlord to reinstate; and
(c) pay to the Landlord on demand, whether or not the Landlord
actually reinstates, a sum equivalent to any excess applicable
to the insurance in respect of the Demised Premises.
14.5 If the Demised Premises, the Landlord's Estate or any part of them
are destroyed or damaged by any of the Insured Risks and the
insurance money under any insurance against the same effected by the
Landlord is wholly or partly irrecoverable by reason solely or in
part of any act or default of the Tenant or the Tenant's servants,
agents or invitees then and in every such case forthwith to pay to the
Landlord the whole or the irrecoverable proportion as the case may
require of the Full Reinstatement Value.
14.6 If at any time during the Term the Tenant shall become entitled to
the benefit of any insurance on the Demised Premises which is not
effected or maintained in pursuance of the obligations contained in
this Underlease to apply (insofar as the same shall extend)
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Schedule 3
all moneys received by virtue of such insurance other than for rent
in making good the loss or damage in respect of which the same have
been received.
15. EASEMENTS ETC.
15.1 To do all such things as may be necessary for preventing any
encroachment or easement being made or acquired in, over or against
the Demised Premises. If any encroachment or easement shall be made
or threatened to be made or if any window or opening shall be made
or threatened to be opened or made in any neighbouring building
(whether already or in future to be erected) which if not obstructed
might by lapse of time confer the right to such access of light in
favour of any neighbouring property then forthwith to give notice to
the Landlord and at the option of the Landlord either to do all
things as may be required by the Landlord for the purpose
of preventing the making of such encroachment or the acquisition of
such easement or right or to permit the Landlord to enter and take
measures for preventing the same and if the Tenant shall omit or
neglect to do all such things at the earliest possible time the
Landlord shall be entitled after giving seven days' due warning of
its intention so to do to enter upon the Demised Premises and to do
the same provided the Landlord in so entering or being upon the
Demised Premises shall not cause any unnecessary interference with
the carrying on by the Tenant of the Tenant's business.
15.2 To permit every person or body entitled to any right, easement power
or privilege in, over or upon the Demised Premises to exercise the
same without hindrance or objection.
15.3 Not to obstruct the Access Road or any footpath on the Landlord's
Estate in any way whatsoever and in particular not to permit any
vehicles belonging to or calling upon the Tenant to stand other than
on the Designated Parking Area and Designated Service Area.
15.4 Not to do anything calculated or likely to cause damage or injury to
any mains or apparatus of any statutory undertaker now on in or
under the Landlord's Estate or which may be installed during the
Term and to take all reasonable precautions to avoid such damage or
injury.
16. REGULATIONS
To observe and comply with any Regulations.
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Schedule 3
17. INFORMATION
To enable the Landlord or Head Landlord to consider any application by
the Tenant for which the consent of the Landlord or Head Landlord is
required to disclose to the Landlord or Head Landlord such information
as the Landlord or Head Landlord may reasonably require.
18. DISPLAY OF SIGNS
18.1 Not to erect, affix or display or permit to be erected affixed or
displayed any advertisement, board, poster, notice, or sign upon the
Demised Premises except one notice or sign giving the name of the
Tenant (or sub-tenant) and an indication of the business carried on at
the Demised Premises the format and location of such notice or sign to
be previously approved in writing by the Landlord (such approval not
to be unreasonably withheld).
18.2 Not to erect or place any flag, flagpole or aerial upon the exterior
of the Demised Premises without the Landlord's prior approval in
writing.
18.3 To permit the Landlord:
(a) at any time during the Term to display on the Demised Premises
notices for selling the Landlord's interest in the Demised
Premises or for granting a collateral lease of them;
(b) at any time during the last six months of the Term to display on
the Demised Premises notices for selling or re-letting the same
PROVIDED THAT any such notice may be affixed and retained without
interference by the Tenant on some part or parts of the exterior
of the Demised Premises but not on any fascia or so as to cause
disturbance to the Tenant's business nor so as to obstruct the
passage of light or air to the Demised Premises.
18.4 At any such time as referred to in paragraph 18.3 to permit all
persons by order in writing of the Landlord on prior appointment to
view the Demised Premises at all convenient hours in the daytime
without interruption.
19. YIELDING UP
At the expiration or sooner determination of the Term peaceably and
quietly to yield up unto the Landlord the Demised Premises together
with additions and improvements made to them in the meantime, or if so
required with all additions and improvements reinstated in accordance
with paragraph 5.1 of this Schedule 3, and in such state and
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Schedule 3
condition as shall be consistent in all respects with a full and due
performance by the Tenant of the covenants contained in this
Underlease or any Licence or Deed of Variation supplemental of it and
all keys to the Demised Premises and all fixtures and fittings (other
than trade or tenant's fixtures affixed by the Tenant or any sublessee
of the Tenant) in or upon the Demised Premises or which during the
Term may have become affixed or fastened to or upon the Demised
Premises and to remove from the Demised Premises any notice or sign
showing the name or business of the Tenant and to make good all damage
caused in so doing.
20. REMOVAL OF FIXTURES ETC.
20.1 At the expiration or sooner determination of the Term if the Tenant
shall or shall be required to remove any of the Tenant's trade
fixtures, fittings plan, or machinery then to remove the same at the
Tenant's own expense in accordance with the following conditions:
(a) to remove plant, machinery, fixtures and fittings and all
ancillary equipment and supports of any kind, concrete machinery
beds projecting above the general floor level and any enclosures
erected solely for the purpose of enclosing and protecting the
plant which is being removed;
(b) to disconnect plant, machinery, fixtures and fittings connected
to or taking supplies from any of the Service Media in such a
manner that all redundant means of connecting are removed and
sealed off at points as close as possible to the various ring
mains or principal distribution pipes which provide the supplies
and to carry out any such removal and sealing off entirely in
accordance with any relevant Act of Parliament and the
regulations, terms and conditions of any body or institution
(whether statutory or non-statutory) competent in that behalf and
so as not to interfere with the continued functioning of the
Service Media; and
(c) to fill all machinery pits and indents in floors and to make good
the Demised Premises and any other part of the Landlord's Estate
affected including floors, walls, roads and Service Media after
the removal of plant, machinery, fixtures and fittings and to
reinstate to their original condition the Demised Premises to the
satisfaction of the Landlord and of every competent authority.
20.2 To permit the Landlord:
(a) to sell as agent for the Tenant any of the Tenant's property
remaining in or upon the Demised Premises after vacation of the
same by the Tenant at the
35
Schedule 3
determination of the Term which the Tenant shall fail to remove
within seven days of the Landlord's request for it to do so;
(b) to deduct from the proceeds of sale the expenses of removal,
storage and sale and also any arrears of rent or other sums
owing to the Landlord under this Underlease and to hold the
balance of the proceeds of sale to the order of the Tenant but
without accounting to the Tenant for any interest on such
balance; and
(c) to indemnify the Landlord against any liability to any third
party whose property is sold by the Landlord in accordance with
this paragraph 20.2 in the innocent but mistaken belief that
such property was the property of the Tenant.
21. INDEMNITY
To keep the Landlord and the Head Landlord fully and effectively
indemnified from and against all liabilities, costs, claims,
demands, expenses, actions and proceedings arising in any way
whatsoever from:
(a) the Tenant's use or occupation of the Demised Premises;
(b) the state and condition the Demised Premises;
(c) the execution of any works on the Demised Premises;
(d) any act or default of the Tenant, its agents or employees in
respect of the death of or injury to any person or damage to any
property real or personal or the infringement, disturbance or
destruction of any right or easement or otherwise; or
(e) any losses, costs, damages, expenses incurred consequent upon
any forfeiture or disclaimer of this Underlease
except such as shall be insured against under the provisions of this
Underlease or shall be due to any act of the Landlord or Head
Landlord their agents or employees acting within the course of their
agency or employment
22. COSTS
22.1 To pay all proper costs, charges and expenses including legal costs
and other professional fees or charges which may be incurred by the
Landlord or the Head Landlord:
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Schedule 3
(a) in or in contemplation of any proceedings relating to the
Demised Premises under Sections 146 and 147 of the Law of
Property Act 1925 or under the Leasehold Property (Repairs) Act
1938 (whether or not any right of re-entry or forfeiture has
been waived by the Landlord or the Tenant has been granted
relief by the Court); or
(b) in the preparation and service of a schedule of dilapidations
before or after the expiry of the Term; or
(c) in or in contemplation of any application by the Tenant or a
sublessee to any planning authority; or
(d) in connection with any application for any consent, licence or
approval required by this Underlease whether or not such
consent is granted or the application withdrawn; or
(e) in exercise of the Landlord's right to carry out the works
referred to in paragraphs 5.5, 10, 12.3.2, 12.8 or 15.1; or
(f) in abating a nuisance on the Demised Premises and executing all
such works as may be necessary for abating such nuisance in
compliance with a notice served by any competent authority; or
(g) all costs, charges and expenses (on a full indemnity basis)
properly incurred in connection with or in pursuing or in
procuring the remedying of any breach by the Tenant of any of
its covenants or any conditions contained in this Lease.
22.2 To pay to the Landlord the whole or any part of the Full
Reinstatement Value as provided in paragraph 14.5 of this Schedule 3.
22.3 To keep the Landlord fully and effectually indemnified against all
costs, charges, expenses, claims and demands whatsoever in respect
of the said applications consents proceedings and notices.
22.4 To pay all such costs within fourteen days of demand and to pay
Interest on the same on and from the fourteenth day after demand up
to and including the date on which payment is made
23. VALUE ADDED TAX
23.1 Where this Underlease requires the Tenant to pay, repay, reimburse
or provide any amount or other consideration in respect of a VAT
Supply to the Tenant by the
37
Schedule 3
Landlord that amount or other consideration will be deemed to be
exclusive of any Value Added Tax chargeable on that VAT Supply
(whether by virtue of a VAT Election made or to be made or
otherwise) and the Tenant will pay to the Landlord that Value Added
Tax.
23.2 Where this Underlease requires the Tenant to pay, repay, reimburse
or provide any amount or other consideration in respect of a VAT
Supply by a third party to the Landlord the Tenant will pay to the
Landlord a sum equal to any Value Added Tax charged to the Landlord
on that VAT Supply which the Landlord is unable to recover.
SCHEDULE 4
(LANDLORD'S COVENANTS)
1. QUIET ENJOYMENT
The Tenant paying the yearly rents reserved by this Underlease and
observing and performing the Underlease provisions to permit the
Tenant quietly to enjoy the Demised Premises during the Term
without any interruption by the Landlord or persons lawfully
claiming under the Landlord.
2. TO INSURE
2.1 Subject to payment by the Tenant of the Insurance Contribution and
unless such insurance shall be vitiated in whole or in part by any
act neglect default or omission of the Tenant or of its servants,
agents, licensees or invitees, to insure and keep insured the
Demised Premises and the Landlord's Estate for a sum not less than
the Full Reinstatement Value with a reputable Insurer against third
party employer's and public liability and loss or damage by the
Insured Risks.
2.2 Such insurance shall be subject to such exceptions excesses and
conditions as the Landlord or its insurers may require.
2.3 If insurance for any of the Insured Risks shall not be available or
not be available at a cost which the Landlord considers reasonable,
the Landlord shall inform the Tenant, but shall not be obliged to
insure against such risks.
2.4 In the event of destruction of or damage to the Demised Premises by
any of the Insured Risks, subject to obtaining all planning,
bye-law or other consents or permissions necessary to enable the
Landlord so to do, to apply all insurance moneys other than in
respect of loss of rent, received in respect of such destruction or
damage
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Schedule 4
towards rebuilding and reinstating the Demised Premises as soon as
reasonably practicable.
2.5 To use its reasonable endeavours to obtain all consents necessary
for such reinstatement as soon as reasonably practicable.
2.6 When rebuilding or reinstating the Demised Premises the Landlord
may use materials of a different quality, type or specification
and/or make such changes in the original design, layout or
specification of the Demised Premises as the Landlord reasonably
deems necessary or desirable.
2.7 To produce to the Tenant at the cost of the Tenant (but not more
than once in any calendar year) upon written demand details of all
policies and endorsements effected by the Landlord in accordance
with this Underlease.
3. PROVIDE SERVICES
At the discretion of the Landlord and subject to payment by the
Tenant of the Service Contributions, to provide such services as
may be required for the efficient management of the Landlord's
Estate including, by way of illustration but not of exhaustive list:
(a) making, cleaning, lighting, repairing, decorating,
maintaining, altering or rebuilding any thing forming or which
during the Term may form part of the Landlord's Estate (other
than those which fall within the liabilities of a tenant)
including the car parking areas, service areas, footpaths,
Service Media, landscaping, banks, walls, fences and other
structures;
(b) providing, maintaining, repairing, replacing and insuring
(save insofar as insured under other provisions of this
Underlease) any electrical and mechanical equipment and other
plant, machinery and services on the Landlord's Estate;
(c) employing all necessary staff including independent
contractors for the purposes of the Landlord's Estate, including
in particular for the purposes of security and cleansing, and
making all payments in relation to such employment including the
payment of the statutory and such other insurances, health,
pension, welfare and other payments, contributions, taxes and
premiums that the Landlord may be required to make or at its
absolute discretion may deem desirable or necessary and the
provision of uniforms, working clothes, tools, appliances,
materials and equipment for the proper performance of their
duties;
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Schedule 4
(d) providing offices, buildings and other structures including
accommodation for management of the Landlord's Estate,
security personnel and guard dogs and residential
accommodation (whether or not situated on some part of the
Landlord's Estate) for a caretaker;
(e) paying all charges, taxes, assessments, impositions and other
outgoings payable by the Landlord in respect of all parts of
the Landlord's Estate not exclusively occupied by a tenant and
in respect of any residential caretaker's accommodation not
situated on the Landlord's Estate but not including parts of
the Landlord's Estate intended to be let but not yet let to a
tenant;
(f) insuring and keeping insured the Landlord's Estate and all its
appurtenances (in addition to the insurance of the Demised
Premises and all other part of the Landlord's Estate which are
let or are intended to be let) in accordance with the
Landlord's covenant contained in paragraph 2 of this Schedule
4;
(g) management of the Landlord's Estate including ascertainment of
the Estate Costs by surveyors accountants and other
professionals;
(h) complying with or making representations against or otherwise
contesting the incidence of the provisions of any Act of
Parliament concerning town planning, public health, highways,
streets, drainage or other matters relating or alleged to
relate to the Landlord's Estate other than the Demised
Premises; and
(i) providing telephones, communication facilities, public address
systems, fire fighting equipment, security systems and all
other services, facilities or amenities for the benefit of the
tenants on the Landlord's Estate which the Landlord deems
desirable or expedient.
PROVIDED HOWEVER that the Landlord shall not be liable to the Tenant
for any defect or want of repair unless the Landlord has had notice
of it.
4. FAILURE OF SERVICES
Subject to paragraph 8 of Schedule 6 to use its reasonable endeavours
to remedy any failure of any of the Service Media or any service
provided on the Landlord's Estate.
5. HEADLEASE
5.1 To pay the rent reserved by the Headlease throughout the Term.
40
Schedule 4
5.2 By way of indemnity only but not further or otherwise to observe and
perform all the covenants on the part of the Landlord under the
Headlease so far as they do not fall to be observed and performed by
the Tenant under the provisions of this Underlease; and
5.3 Where the consent of the Head Landlord shall be required for any
matter under this Underlease at the request and cost of the Tenant
to use all reasonable endeavours to obtain such consent.
SCHEDULE 5
GUARANTOR'S COVENANTS
1. GUARANTEE
If the Tenant fails to comply with any of the Underlease Provisions,
the Guarantor guarantees that it shall, on demand by the Landlord,
immediately perform and discharge the obligations of the Tenant under
them.
2. CONTINUING GUARANTEE
The guarantee set out in Paragraph 1 is a continuing guarantee and
is additional to, and not in substitution for, any other security or
guarantee which is or may be held by the Landlord from time to time
in respect of the obligations of the Tenant under this Underlease.
3. FOREBEARANCE AND DELAY
The Guarantor's liability under Paragraph 1 shall not be affected by
any concession, time, indulgence or release granted by the Landlord to
the Tenant or by any other dealing or variation of this Underlease,
subject to Section 18 of the Landlord and Tenant (Covenants) Act 1995,
or anything else, whether relating to the Tenant, any co-guarantor or
any other person, which would, but for this Paragraph 3, operate to
discharge or reduce that liability.
4. PRIMARY OBLIGATION
If anything, including any legal limitation, disability, liquidation
or other incapacity on the part of the Tenant or any disclaimer by a
liquidator or trustees in bankruptcy, causes any of the Tenant's
obligations under this Underlease and/or the guarantee set out in
Paragraph 1 to be or become invalid or unenforceable, the Guarantor
shall perform and discharge all of the Tenant's obligations under
this Underlease as if they were the primary obligations of the
Guarantor.
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Schedule 5
5. INDEMNITY
The Guarantor shall indemnify and keep indemnified the Landlord
against any losses, liabilities, costs and expenses resulting from
the failure of the Tenant to observe any of the Underlease
Provisions.
6. SET OFF AND COUNTERCLAIMS
The Guarantor shall make any payments due from it under this
Schedule 5 in full, without any deduction or withholding in respect
of any claim, whether by way of set-off, counterclaim or otherwise,
asserted from time to time by the Tenant or the Guarantor against
the Landlord under this Underlease or in respect of anything else.
7. RIGHTS AGAINST THE TENANT
The Guarantor shall not exercise any rights which it may have
against the Tenant arising from or otherwise relating to its
guarantee under Paragraph 1 or its other obligations under this
Schedule 5 unless and until all of the obligations of the Tenant and
the Guarantor under this Underlease have been performed and
discharged.
8. ENFORCEMENT OF THE GUARANTEE
The Landlord may claim under the guarantee set out in Paragraph 1
without first making demand of the Tenant or taking any action to
claim under or enforce the Tenant's obligations under this Lease or
any other right, security or other guarantee which it may hold from
time to time in respect of the Tenant's obligations under this
Underlease.
9. TO ACCEPT A NEW LEASE
9.1 In this Paragraph 9, the following expressions mean:
"EVENT OF DEFAULT" means the disclaimer of this Underlease by either
a trustee in bankruptcy of the Tenant, if the Tenant is an
individual, a liquidator of the Tenant, if the Tenant is a company;
the disclaimer of this Underlease by the Crown, if this Underlease
becomes bona vacantia, or the striking off of the Tenant from the
register of companies pursuant to the provisions of the Companies
Act 1985.
"LANDLORD'S NOTICE" means a notice in writing requiring the
Guarantor to take a New Lease served by the Landlord on the
Guarantor within three months of an Event of Default coming to the
Landlord's knowledge.
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Schedule 5
"NEW LEASE" means a lease of the Demised Premises for a term
commencing on the date of the Event of Default, expiring on the date
the Term would have expired had there been no Event of Default,
reserving rents equivalent to the Basic Rent and Additional Rent and
containing terms identical to the Underlease Provisions including
an option to determine upon the same date upon which it would have
been operable under this Underlease.
9.2 If, following an Event of Default, the Landlord serves a Landlord's
Notice requiring the Guarantor to take a New Lease, the Guarantor
shall accept a New Lease, execute a counterpart of the New Lease and
pay the Landlord's solicitors' costs and disbursements of and
incidental to the grant of the New Lease.
9.3 If at the date of the Event of Default any review of the rent under
the Underlease has fallen due but the rent review shall not have
been agreed or determined prior to the grant of the New Lease then
the New Lease shall provide for a review of the rent upon the first
day of the term of the New Lease.
9.4 If, following an Event of Default, the Landlord serves a Landlord's
Notice requiring the Guarantor to indemnify the Landlord, the
Guarantor shall pay to the Landlord on demand the Basic and
Additional Rents for the period commencing on the date of the Event
of Default and ending on the earlier of:
(a) the date twelve months after the date of the Event of Default;
and
(b) the date, if any, upon which rent becomes payable after the
Demised Premises are re-let.
10. UNCONDITIONAL GUARANTEE
The Guarantor's obligations under this Schedule 5, including its
guarantee under Paragraph 1, are unconditional and irrevocable.
11. NO ASSIGNMENT OF BENEFIT NECESSARY
The benefit of the Guarantor's obligations under this Schedule 5,
including its guarantee under Paragraph 1, shall pass to the
Landlord's successors in title to this Underlease without the need
for any assignment of the same.
12. DURATION OF GUARANTEE
The guarantee in this Schedule 5 shall remain in full force and
effect until the earlier of:
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Schedule 5
(a) the determination of the Term;
(b) the assignment of this Underlease by the Tenant in accordance
with the provisions of paragraph 13.1 of Schedule 3; or
(c) the date upon which the Tenant is released from liability under
this Underlease by virtue of Section 11(2) of the Landlord and
Tenant (Covenants) Act 1995.
13. AUTHORISED GUARANTEE AGREEMENT
If upon the assignment of this Underlease by the Tenant the Tenant
is required by the terms of this Underlease to enter into an
Authorised Guarantee Agreement with the Landlord then the Guarantor
shall also enter into an agreement in the same terms (mutatis
mutandis) guaranteeing the obligations of the person or persons or
corporation to whom the Tenant assigns this Underlease.
14. GENERAL
In this Schedule, any reference to "the Tenant" shall be deemed to
refer to the tenant for the time being of this Underlease at the
date the Guarantor enters into this guarantee and shall expressly
exclude any assignee of the Tenant.
SCHEDULE 6
(PROVISOS)
1. RE-ENTRY
1.1 In any of the events set out in paragraph 1.2 the Landlord, or any
person or persons duly authorised by the Landlord, may at any time
re-enter the Demised Premises or any part of them in the name of the
whole and repossess and enjoy the same as if this Underlease had not
been made. Upon such re-entry, this Underlease shall absolutely
cease and determine, but without prejudice to any right of action or
remedy of the Landlord in respect of any antecedent breach of any of
the Underlease Provisions by the Tenant.
1.2 The Landlord may exercise its rights under paragraph 1.1 if:
(a) the Basic Rent or Additional Rent or any part of them remain
unpaid for twenty-one days after becoming payable, whether
formally demanded or not;
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Schedule 6
(b) any of the Underlease Provisions are not performed or observed
by the Tenant;
(c) the Tenant or any Guarantor being a company;
(i) makes a scheme of arrangement or a voluntary arrangement
or compounds or enters into any composition or
arrangement with its creditors;
(ii) has a petition presented for the appointment of an
administrator or an administrator is appointed;
(iii) has a receiver or manager or administrative receiver
appointed over all or any part of its assets;
(iv) has a resolution passed for its voluntary winding-up,
save for the purpose of amalgamation or reconstruction
with the prior consent of the Landlord, or enters
voluntary liquidation;
(v) has a petition presented for its winding-up or a
winding-up order is made; or
(vi) is removed for any reason from the Register of Companies;
(d) the Tenant or any Guarantor being a company incorporated
outside the United Kingdom is the subject of any proceedings or
events analogous to those referred to in paragraph 1.2(c) in
the country of its incorporation;
(e) the Tenant or any Guarantor being an individual, or if
individuals any one of them:
(i) enters into a deed of arrangement with his creditors;
(ii) makes or has an application made for an interim order
in connection with a proposal to creditors for a voluntary
arrangement;
(iii) makes any assignment for the benefit of or enters into
any arrangement voluntary or otherwise with his creditors
either by composition or otherwise; or
(iv) has a petition presented for his bankruptcy or is made
bankrupt or;
(f) the Tenant, being two or more individuals trading together or
practising in partnership and holding the Demised Premises on
trust for themselves and
45
Schedule 6
others as an asset of the partnership, or being an individual,
holding the Demised Premises on trust for himself and others as
an asset of the partnership:
(i) has a resolution passed to dissolve the partnership, save
for the purpose of amalgamation or reconstruction with the
consent of the Landlord; or
(ii) has a petition presented for the winding-up of the
partnership.
2. AVOIDANCE OF WAIVER
No acceptance of or demand or receipt for rent by the Landlord after
knowledge or notice received by the Landlord or its agents of any breach
of any of the Tenant's covenants contained in or implied by this Underlease
shall operate as a waiver in whole or part of any such breach or of the
Landlord's right of forfeiture or re-entry in respect of such breach but
that for all purposes any such breach shall be a continuing breach and that
the Tenant shall not be entitled to set up any such acceptance of or demand
or receipt for rent as defined in any action or proceeding by the Landlord.
3. COMPENSATION
Except where any Act of Parliament prohibits or modifies the right to
compensation being excluded or reduced by agreement neither the Tenant nor
any sub-lessee (whether immediate or derivative) on quitting the Demised
Premises or any part thereof shall be entitled to claim any compensation
from the Landlord under the provisions of the Landlord and Tenants Act 1954
or any other Act of Parliament.
4. CESSER OF RENT
4.1 If the Demised Premises shall be destroyed or damaged by any of the Insured
Risks so as to be unfit for occupation and use then the Basic Rent and
Additional Rent or a fair and just proportion of them according to the
nature and extent of the damage sustained shall be suspended and cease to
be payable except where:
(a) the insurance of the Demised Premises has been forfeited or rendered
void by the act, default, or omission of the Tenant; or
(b) the Landlord shall not recover a sum equivalent to the amount of rent
suspended or ceased.
Such suspension or cesser shall subsist until the Demised Premises are
rendered fit for occupation and use or (if shorter) for the period for
which the Landlord shall have insured against for loss of rent.
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Schedule 6
4.2 All moneys payable by the Insurer in respect of loss of rent shall be paid
by the Insurer as agent for the Tenant and shall be accepted by the
Landlord in satisfaction of the whole, or such part as the landlord shall
specify, of any rent payable by the Tenant under this Underlease and
forthwith at the request of the Landlord the Tenant shall give to the
Insurer such authority or instruction as the Insurer may require to give
effect to the provisions of this paragraph.
5. RENT FROM THIRD PARTY
The acceptance of rent by the Landlord from any party whatsoever other than
the Tenant shall not be construed as notice or approval of any assignment
or underletting unless such assignment has been expressly authorised by the
Landlord and Head Landlord in accordance with the provisions in that
respect contained in this Underlease.
6. EFFECT ON OTHER PROPERTY
Nothing contained in or implied by this Underlease shall impose or be
deemed to impose any restriction on the use of any land or buildings not
comprised in this Underlease for building or any other purpose or give the
Tenant the benefit of or the right to enforce or to have enforced or to
prevent the release or modification of any covenant agreement or condition
entered into by any tenant of the Landlord in respect of property not
comprised in this Underlease or to prevent or restrict in any way the
development of any land not comprised in this Underlease.
7. ADDITIONAL RIGHTS
The Tenant shall not be or become entitled by long user, prescription,
implication or otherwise to any right to light, air or other right,
easement or quasi-easement whatsoever over or from any part of the
Landlord's Estate or any other property nor to any covenant or service on
the part of the Landlord except as expressly provided by this Underlease.
8. INTERRUPTION OF SERVICES
The Landlord shall not be liable, beyond the extent to which such matters
may be covered by insurance in accordance with the provisions of this
Underlease, for any loss or injury whether personal or to property
sustained by the Tenant or any servant agent or visitor of the Tenant
caused by failure of any of the Service Media or any service provided on
the Landlord's Estate.
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Schedule 6
9. NOTICES
9.1 Every notice to be given pursuant to any of the provisions of this
Underlease shall be:
(a) in writing;
(b) addressed by name to the Landlord, Head Landlord, Tenant or
Guarantor as the case may require; and
(c) directed to the registered or principal office or last known or
last notified address in Great Britain of the Landlord, Head
Landlord, Tenant or Guarantor or to the Demised Premises in the
case of the Tenant.
9.2 Notice may be given in the following ways:
(a) delivered by hand; or
(b) sent by registered or recorded delivery post or via any other
official service which may supersede them during the Term; or
(c) sent by telex, fax or other instantaneous transmission service.
9.3 Service shall be effected:
(a) in the case of delivery by hand on delivery to a responsible
person;
(b) in the case of sending by post on the date of receipt;
(c) in the case of transmission by telex, fax or similar service on
the date of receipt.
9.4 Any notice to be given to two or more persons shall be deemed to be
given to all of them if addressed to all of them but given to one of
them or delivered to their office.
9.5 A duplicate of any notice to be given to the Landlord shall be given
simultaneously to the managing agents of the Landlord's Estate the
identity and address of whom shall be notified to the Tenant and
Guarantor from time to time.
9.6 The provisions of this paragraph 9 shall apply in the case of any
notice required to be served pursuant to any Act of Parliament which
makes no provision for a mode of service.
9.7 If the foregoing provisions of this paragraph 9 prove ineffective
the provisions of Section 196 of the Law of Property Act 1925 as
amended by the Recorded Delivery Service Act 1962 shall apply.
48
Schedule 6
10. LANDLORD'S LICENCE OR CONSENT
Under whatever provisions of this Underlease the Tenant is required
to obtain the licence, approval, agreement or consent of the
Landlord which is expressly or impliedly subject to the requirement
that it not be unreasonably withheld, such provisions shall be
deemed to be subject to the proviso that such licence, approval,
agreement or consent shall not be unreasonably withheld, refused or
delayed PROVIDED THAT the Landlord's lawful right to require:
(a) payment of its proper legal costs and other reasonable costs or
expenses incurred in connection with such licence or consent; or
(b) payment of a reasonable sum in respect of any damage to or
diminution in the value of the Demised Premises or any other
part of the Landlord's Estate; or
(c) the Tenant's undertaking to reinstate the Demised Premises to
their condition before the execution of any improvement to
which such licence, approval, agreement or consent refers;
shall remain unaffected by it.
11. ARBITRATION
In case any dispute or difference arise between the parties touching
any clause, paragraph, matter or thing contained in this Underlease
other than under Schedule 7 or the rights, duties or liabilities of
either party under or in connection with this Underlease the parties
shall use their best endeavours to resolve such dispute or
difference immediately but if the same remain unresolved for a
period of two months after its occurrence either party may refer the
dispute or difference for the determination of an arbitrator in
accordance with the provisions of the Arbitration Act 1996.
SCHEDULE 7
(REVIEW OF BASIC RENT)
1. RENT REVIEW
1.1 DEFINITIONS
In this Schedule 7 the following words and expressions mean:
"ASSUMPTIONS" means the following assumptions which shall apply on a
rent review:
49
Schedule 7
(a) that the covenants on the part of the Landlord and Tenant have
been duly observed and performed, but without prejudice to the
Landlord's and the Tenant's rights in respect of any breach of
them;
(b) that on the Rent Review Date the Premises are fit for immediate
occupation and use and if then damaged or destroyed that they
have been fully reinstated;
(c) that no work has been carried out, whether pursuant to a licence
permitting such work or not, which has diminished the rental
value of the Demised Premises;
(d) the Tenant has a right of renewal pursuant to the provisions of
the Landlord and Tenant Act 1954;
"DISREGARDS" means the following matters which shall be disregarded on
any rent review:
(a) so far as may be permitted by law, any temporary legal restraint
on making or recovering any increase in rent;
(b) works and improvements carried out during the Term to the Demised
Premises by the Tenant or any lawful sub-tenant at their own
expense with all necessary consents. Works or improvements shall
not be disregarded if they were carried out pursuant to an
obligation to the Landlord under this Underlease, under any other
document or in consideration of any reduction or abatement of
rent or fee payable under any licence or agreement for more than
21 years before the Review Date in question;
(c) any goodwill attaching to the Demised Premises by reason of the
business conducted from them;
(d) the fact that the Tenant or any lawful sub-tenant occupies the
Demised Premises; and
(e) the fact that a willing tenant may not be able to recover all or
any part of any value added tax levied by the Landlord on any of
the rents;
"HYPOTHETICAL LEASE" means lease:
(a) granted with vacant possession in the open market without a
premium by a willing landlord to an immediately available willing
tenant;
50
Schedule 7
(b) for a term of ten years commencing on the Rent Review Date;
(c) containing similar covenants, conditions, provisions, agreements
and declarations to those contained in the Underlease;
(d) excluding the amount of Basic Rent payable under this Underlease;
and
(e) including provisions for the review of the Basic Rent after five
years identical to these provisions, save for paragraph (e) of
the Disregards which shall be excluded;
"MARKET RENT" means the best rent at which the Demised Premises might
reasonably be expected to be let after the expiry of a rent free
period of such lengths as would be negotiated in the open market
between a willing landlord and a willing tenant on the relevant Rent
Review Date as a whole on the terms of a Hypothetical Lease assuming
the Assumptions and the Disregards apply.
2. The Basic Rent shall be reviewed at the Review Date to the greater of:
(a) the Market Rent at the Review Date; and
(b) the Basic Rent (disregarding any cesser or abatement of rent) for
the period immediately preceding the Review Date.
3. ASCERTAINMENT
3.1 The Landlord shall inform the Tenant by notice of its assessment of
the Market Rent payable at the Review Date specified in such notice
and if:
(a) the Tenant concurs in writing with such assessment the amount
proposed will be or become the Market Rent payable on and from
the Review Date;
(b) the Tenant disagrees with such assessment it shall give notice to
the Landlord without undue delay of its assessment of the Market
Rent whereupon the parties will use their best endeavours to
agree upon the amount which will be or become the Market Rent
payable on and from the Review Date.
3.2 If no agreement shall have been reached between the parties within
three months after service of the Landlord's notice the question of
the amount of the Market Rent of the Demised Premises at the review
Date shall be referred to a single arbitrator experienced in the
rental valuation of the type of property in question whose decision
51
Schedule 7
shall be final and binding on the Landlord and the Tenant and include
the incidence of liability for the costs of the arbitration.
3.3 In default of agreement between the parties the arbitrator shall be
appointed, by the President for the time being of the Royal
Institution of Chartered Surveyors on the application to him of either
party and this paragraph shall be deemed to be a submission to
arbitration in accordance with the Arbitration Act 1996.
3.4 If the Landlord shall fail to inform the Tenant of its assessment of
the Market Rent on or before the expiration of six months from the
Review Date the Tenant may inform the Landlord by notice of its
assessment of the Market Rent and the provisions of paragraphs 3.1,
3.2 and 3.3 shall apply (mutatis mutandis).
3.5 If the amount of any Market Rent assessed shall be less than that
currently payable disregarding any abatement or cesser of rent then
the Market Rent assessed shall be deemed to be equal to that currently
payable so that the amount of Basic Rent payable by the Tenant under
the provisions of this Underlease shall never decrease.
4. PAYMENT OF INCREASE
If upon the Review Date the amount of the Market Rent shall not be
ascertained the Tenant shall continue to pay rent at the yearly rate
payable immediately prior to the Review Date until the Rent Payment
Date next following the ascertainment of the Market Rent upon which
Rent Payment Date the Tenant shall pay the rent for the quarter then
commencing together with:
(a) the balance of the Market Rent payable from the Review Date to
the Rent Payment Date (being the difference between the Market
Rent and the previous Market Rent); and
(b) interest on such balance but at four percent below the rate
specified in the definition of Interest.
5. STATUTORY RESTRICTIONS
If on the Review Date the review shall be restricted or restrained by
any Act of Parliament then the first day of the month next following
the relaxation removal or modification of such restriction or
restraint shall be an additional Review Date.
6. RECORD OF REVIEW
52
Schedule 7
After each review of Basic Rent the amount of the Market Rent
ascertained shall be entered in the Particulars of the Underlease by
the Tenant and in the Particulars of the Counterpart by the Landlord
and the parties shall exchange photocopies of such entries as evidence
of their insertion.
7. REVIEW FREQUENCY ON RENEWAL
On a renewal of this Underlease by virtue of the Landlord and Tenant
Act 1954 the frequency of rent review during the renewed term shall
accord with the market practice in respect of new lettings current at
the determination of the Term.
SCHEDULE 8
(SERVICE CONTRIBUTION)
1. ASCERTAINMENT OF ESTATE COSTS
The Estate Costs shall be ascertained as soon as practicable after the
end of every Accounting year by normal accounting procedures taking
account of the costs incurred in the provision of the services
referred to in paragraph 3 of Schedule 4 and any other costs, charges
or expenses properly incurred in connection with the Landlord's
Estate.
2. NOTIFICATION OF ESTATE COSTS
A summary statement of the Estate Costs certified as true and fair by
the Landlord's managing agents or accountants which shall be
conclusive evidence of the matters it contains shall be given to the
Tenant and all other tenants on the Landlord's Estate.
3. SERVICE CONTRIBUTION ACCOUNT
Together with such summary statement or as soon as reasonably
practicable after its delivery, the Tenant shall be given an account
of the Service Contribution for the Accounting Year in question
showing its Service Contribution and the total of its Advance
Payments.
4. BALANCING CHARGE
4.1 If the Service Contribution exceeds the total of the Advance Payments
the Tenant will pay the difference on or before the Balancing Charge
Payment Date together with Interest on such excess on and from the
Balancing Charge Payment until the date of actual payment.
53
Schedule 8
4.2 If the total of the Advance Payments exceeds the Service
Contribution the Landlord will credit the balance to the account of
the Tenant and deduct the amount from the Advance Payment next
following or if the case so require from successive Advance Payments
until such balance is exhausted PROVIDED THAT at the end of the Term
by effluxion of time unless this Underlease shall be renewed any
such balance will be refunded to the Tenant.
5. INSPECTION
Upon giving notice in writing the Tenant may inspect the receipts
vouchers and accounts relating to the ascertainment of the Estate
Costs but such inspection shall not postpone the Balancing Charge
Payment Date nor relieve the Tenant from payment of any balance
payable on that date.
THE COMMON SEAL OF )
THRUSTMASTER, INC ) [SEAL]
affixed in the presence of )
Director [ILLEGIBLE]
Secretary [ILLEGIBLE]
THE COMMON SEAL OF )
STARGAS NOMINEES LIMITED ) [STAMP] [SEAL]
was hereunto affixed in the presence of )
Authorised signatory
Authorised Counter-Signatory
54
BRITISH GAS CORPORATION
CAMBERLEY
UNIT 9
SCALE 1:500
[MAP]
DRAWING NO BG/N103/10/08/06/108
[MAP]
BRITISH GAS CORPORATION
CAMBERLEY
UNIT 9
SCALE 1:1250
[MAP]
DRAWING NO BG/N103/10/08/06/3A
[MAP]
[MAP]