EXHIBIT 10.2
LEASE
OF GROUND FLOOR (NORTH WEST) OFFICE SUITE (FRONT) 3 FURZEGROUND WAY
STOCKLEY PARK UXBRIDGE
DATED 24 MARCH 2005
3 FURZEGROUND (NO. 1) LIMITED AND 3 FURZEGROUND (NO. 2) LIMITED
(Landlord)
CORVU PLC
(Tenant)
Annexures:
Floor Plan
Park Plan
Site Plan
Parking Plan
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CONTENTS
PAGE
----
1 DEFINITIONS AND INTERPRETATION.....................................
1.1 Definitions........................................................
1.2 Interpretation.....................................................
2 DEMISE AND RENTS...................................................
3 TENANT'S COVENANTS.................................................
3.1 Rent...............................................................
3.2 Interest...........................................................
3.3 VAT................................................................
3.4 Rates and Outgoings................................................
3.5 Repair.............................................................
3.6 Decoration.........................................................
3.7 Cleaning...........................................................
3.8 Alterations........................................................
3.9 Overloading of floors and services.................................
3.10 Aerials, signs and advertisements..................................
3.11 Default notices....................................................
3.12 Use................................................................
3.13 Nuisance and prohibited uses.......................................
3.14 Alienation.........................................................
3.15 Compliance with Enactments etc.....................................
3.16 Planning...........................................................
3.17 Yielding up........................................................
3.18 Encroachments, easements and third party rights....................
3.19 Reletting and sale notices.........................................
3.20 Landlord's costs...................................................
3.21 Indemnity..........................................................
3.22 Regulations........................................................
3.23 New surety.........................................................
3.24 Other obligations..................................................
3.25 Registration.......................................................
4 LANDLORD'S COVENANTS...............................................
4.1 Quiet enjoyment....................................................
4.2 Services...........................................................
5 INSURANCE..........................................................
5.1 Landlord to insure.................................................
5.2 Suspension of rent.................................................
5.3 Reinstatement following damage or destruction......................
5.4 Reinstatement prevented etc........................................
5.5 Tenant's insurance obligations.....................................
6 FORFEITURE.........................................................
7 MISCELLANEOUS......................................................
7.1 No implied easements...............................................
7.2 Exclusion of warranty as to use....................................
7.3 Representations....................................................
7.4 Exclusion of Landlord's liability..................................
7.5 Covenants relating to Adjoining Property...........................
7.6 Disputes with adjoining occupiers..................................
7.7 Exclusion of statutory provisions..................................
7.8 Notices............................................................
7.9 New tenancy........................................................
7.10 Effect of document.................................................
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7.11 Commencement.......................................................
7.12 Third Parties......................................................
7.13 Removal of Tenant's Goods..........................................
7.14 Rights of Light etc................................................
7.15 Miscellaneous......................................................
7.16 Break Clause.......................................................
7.17 Jurisdiction.......................................................
SCHEDULE 1 - THE PREMISES/THE BUILDING......................................
SCHEDULE 2 - RIGHTS AND EASEMENTS GRANTED...................................
SCHEDULE 3 - EXCEPTIONS AND RESERVATIONS....................................
SCHEDULE 4 - DEEDS AND DOCUMENTS AFFECTING THE PREMISES.....................
SCHEDULE 5 - RENT REVIEW....................................................
SCHEDULE 6 - SERVICE CHARGE.................................................
SCHEDULE 7 - COVENANTS BY THE SURETY........................................
SCHEDULE 8 - CAR PARKING PROVISIONS.........................................
ii
LEASE
DATED 24 MARCH 2005
BETWEEN
(1) 3 FURZEGROUND (NO. 1) LIMITED Company Number 4410573 and 3 FURZEGROUND
(NO. 2) LIMITED Company Number 4410575 (LANDLORD), both of whose
registered offices are at Five Chancery Lane Cliffords Inn London EC4
(2) CORVU PLC Company Registration Number 3096249 (TENANT) whose registered
office is at Russell Bedford House City Forum 250 City Road London EC1V
2QQ
IT IS AGREED
1 DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Lease the following definitions apply.
1954 ACT means the Landlord and Tenant Act 1954.
1995 ACT means the Landlord and Tenant (Covenants) Act 1995.
ALLOTTED SPACES means the fifteen (15) car parking spaces in those
parts of the Car Park edged green on the Parking Plan or such other
reasonably comparable car parking area or areas as may be allotted by
the Landlord to the Tenant from time to time.
ADJOINING PROPERTY means all parts of the Building (except the
Premises) and other property adjoining or near the Premises.
AGREEMENT FOR LEASE means an Agreement made between the Landlord (1)
and the Tenant (2) and dated 24 February 2005
AUTHORITY means any statutory, public, local or other competent
authority or a court of competent jurisdiction.
BUILDING means the building described in Part 2 of Schedule 1.
CAR PARK means all those parts of the Common Parts which are from time
to time designated for the parking of motor vehicles.
COMMON PARTS means:
(a) those parts of the Building; and
(b) such other amenities available in connection with the Building
including (but only so far as the same are not adopted as
areas maintained at public expense) the Car Park and any roads
accessing It as shown on the Site Plan.
as the Landlord may designate acting reasonably from time to time for
use in common by the Landlord and the tenants and other occupiers of
the Building.
CONDUITS means media and ancillary apparatus capable of being used for
conducting or transmitting Utilities.
CONTAMINATION means the contamination or pollution (as defined by
Environmental Law) of any land water or air or the environment by any
substance in on under or emanating from the Premises.
DUE PROPORTION means a fair and reasonable proportion as conclusively
determined by the Surveyor acting in accordance with the principles of
good estate management
1
ENACTMENT means statute, statutory instrument, statutory guidance,
treaty, regulation, directive, byelaw, code of practice, guidance note,
circular, common law and any notice, order, direction or requirement
given or made pursuant to any of them, for the time being in force.
END OF THE TERM means the date on which the Term actually ends (however
determined).
ENVIRONMENTAL LAW means all Enactments relating to the environment
and/or pollution of the environment (as those terms are defined in
Section 1 of the Environmental Protection Act 1990).
FLOOR PLAN means the floor plan attached hereto and so described
ESTATE RENTCHARGE means the estate rentcharge created by the Rentcharge
Deed.
GROUP means a group of companies within the meaning of section 42 of
the 1954 Act.
INSOLVENCY EVENT means any of the following:
(a) in relation to an individual:
(i) the making of an application for the appointment of
an interim receiver in respect of the individual's
property under section 286 of the Insolvency Act
1986;
(ii) the making of a bankruptcy order in respect of the
individual;
(iii) the making of an application for an interim order
under section 253 of the Insolvency Act 1986 in
respect of the individual; and
(iv) the appointment of any person by the court to prepare
a report under section 273 of the Insolvency Act 1986
in respect of the individual;
(b) in relation to a company:
(i) the appointment of an administrator in respect of the
company or any step taken with a view to the
appointment of an administrator;
(ii) the appointment of an administrative receiver in
respect of the company;
(iii) the making of an order or the passing of a resolution
to wind up the company;
(iv) the appointment of a provisional liquidator in
respect of the company;
(v) the making of a proposal under section 1 of the
Insolvency Act 1986 for a voluntary arrangement in
respect of the company;
(vi) the making of an application to the court by the
directors of the company for a moratorium; and
(vii) the company ceasing to exist;
(c) in relation to any person (whether an individual or a company):
(i) the appointment of a receiver (including an
administrative receiver) in respect of any of the
person's assets;
(ii) the person entering into an arrangement or compromise
with the person's creditors;
(iii) any distress or execution being levied on any of the
person's assets; and
INSURANCE RENT means a fair proportion (determined by the Landlord) of
the sums (including the proper cost of valuations for insurance
purposes and gross of any commission payable to the Landlord) which the
Landlord pays from time to time for insuring the Building against the
Insured Risks and the other matters referred to in Clause 5.1.1 and the
whole of the sums which the Landlord pays from time to time for
insuring against loss of the Rent and additional rents payable under
this Lease.
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INSURED RISKS means fire, storm, tempest, flood, lightning, impact,
aircraft (other than hostile aircraft) and other aerial devices and
articles dropped therefrom, riot, civil commotion and malicious damage,
bursting or overflowing of water tanks, apparatus or pipes (but
excluding such risks as the Building cannot be insured against in the
UK market or which the Landlord in its discretion (exercised
reasonably) considers cannot be insured against in the UK market at a
reasonable rate) and such other risks as the Landlord may in its
absolute discretion from time to time determine subject in each case to
such exclusions, excesses and limitations as may be imposed by the
insurers and Insured Risk means any one of them.
INTEREST means interest at the rate of four per cent (4%) per annum
above the base lending rate from time to time of National Westminster
Bank PLC (or of such other UK clearing bank as the Landlord may
designate from time to time by giving Notice to the Tenant) both before
and after any judgment, calculated on a daily basis from the date on
which interest becomes chargeable on any payment due under this Lease
to the date on which such payment is made, such interest to be
compounded quarterly on the usual quarter days.
LANDLORD means the person who is from time to time entitled to the
reversion immediately expectant on the determination of this Lease.
LANDLORD'S CONSENT means consent or approval in writing signed by or on
behalf of the Landlord.
LEASE means this lease and any document supplemental to it or entered
into pursuant to its terms.
LETTABLE AREA means accommodation in the Building from time to time let
or intended to be let to occupational tenants.
NOTICE means written notice given by a Party to any other Party.
PARK PLAN means the plan annexed and so entitled.
PARKING PLAN means the plan annexed and so entitled.
PARTY means a party to this Lease and PARTIES means more than one
Party.
PERMITTED USE means use as high class offices with ancillary parking.
PERSONNEL means servants, employees, contractors, workmen, agents,
licensees and visitors.
PLANNING ENACTMENTS means all Enactments relating to town and country
planning. Plans means the plans attached to this Lease.
PLANS means the plans attached to this Lease.
PREMISES means the premises described in Part 1 of Schedule 1.
RENT means:
(a) from and including 25 March 2005 until and including 24 March
2006 the yearly rent of ninety six thousand one hundred and
eighty four pounds ((pound)96,184); and
(b) from and including 25 March 2006 until and including 23 June
2006 a peppercorn; and
(c) from and including 24 June 2006 until and including 24 March
2007 the yearly rent of one hundred thousand five hundred and
fifty six pounds ((pound)100,556); and
(d) from and including 25 March 2007 until and including 23 June
2007 a peppercorn; and
(e) from and including 24 June 2007 until and including 24 March
2008 the yearly rent of one hundred and four thousand nine
hundred and twenty eight pounds ((pound)104,928); and
(f) from and including 25 March 2008 until and including 23 June
2008 a peppercorn; and
(g) from and including 24 June 2008 the yearly rent of pounds
((pound)109,300)
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or such other yearly rent agreed or determined pursuant to Schedule 5.
RENTCHARGE DEED means the Transfer and Rentcharge Deed dated 11
September 1986 and made between (1) Trust Securities Holdings Limited
(2) Stockley Park Management Limited and (3) Universities
Superannuation Scheme Limited as amended by the Supplemental Transfer
and Rentcharge Deed dated 24 April 1987 and made between the same
parties.
RENT COMMENCEMENT DATE means 25 March 2005.
RETAINED PARTS means all parts of the Building which are not from time
to time Lettable Areas including:
(a) the structure, walls, foundations and roofs of the Building;
(b) the Common Parts;
(c) office, storage and other accommodation reserved within the
Building for the Landlord's Personnel;
(d) parts of the Building reserved for the housing of plant,
machinery and equipment for the supply of Utilities and/or for
the provision of the Services;
(e) Facilities (as defined in Schedule 6) and Conduits in, on,
over, under or serving the Building, except any which are
within and exclusively serve any Lettable Area.
REVIEW DATE means every fifth anniversary of the date on which the Term
commences and RELEVANT REVIEW DATE shall be interpreted accordingly.
SCHEDULE OF CONDITION means the schedule of condition annexed hereto.
Service Charge has the meaning described in Schedule 6.
SERVICES has the meaning described in Schedule 6.
SITE means the land shown edged blue on the Site Plan.
SITE PLAN means the plan annexed and so entitled.
SUPERIOR LANDLORD means any person(s) entitled to any estate or
interest superior to the interest of the Landlord in the Building.
SURETY means:
(a) any person named as "Surety" in this Lease; and/or
(b) any person who guarantees compliance with the Tenant's
Covenants; and/or
(c) the successors in title and assigns of any such person and, in
the case of an individual, his personal representatives.
SURVEYOR means a person appointed by the Landlord to perform the
function of a surveyor for any purpose of this Lease (including an
employee of the Landlord or of a company in the same Group as the
Landlord and any person appointed by the Landlord to collect the rents
and manage the Building) but does not include the Independent Surveyor
defined in Schedule 5.
TENANT includes every person who is at any time the tenant under this
Lease and, in the case of an individual, his personal representatives.
TENANT'S COVENANTS means the covenants, terms, conditions, agreements,
restrictions, stipulations and obligations falling to be complied with
by the Tenant under this Lease.
TENANT'S PERSONNEL means the Personnel of the Tenant together with any
sub-tenant, licensee or other occupier from time to time of the
Premises and their respective Personnel.
4
TERM means the term granted by this Lease and the period of any holding
over or any extension or continuation of it by statute or at common
law.
UTILITIES means water, gas, sewerage, electricity and telephone and
such other supplies as are available for the benefit of the Premises
for the Permitted Use from time to time.
VAT means Value Added Tax as provided for in the Value Added Tax Act
1994 and any tax similar or equivalent to Value Added Tax.
WORKING DAY means any day except Saturday, Sunday and public holidays
in England.
1.2 INTERPRETATION
1.2.1 Where a Party includes two or more persons, the covenants made by that
Party are made by those persons jointly and severally.
1.2.2 Words implying one gender include all other genders, words implying the
singular include the plural and vice versa and words implying persons
include any person or entity capable of being a legal person.
1.2.3 A covenant by the Tenant not to do any act or thing includes a covenant
not to permit or suffer such act or thing to be done.
1.2.4 A reference to any right of the Landlord to access or enter the
Premises extends to any Superior Landlord and all persons authorised by
the Landlord and/or any Superior Landlord, including in each case their
Personnel, mortgagees, professional advisers and others, with or
without equipment, plant and machinery.
1.2.5 A reference to any Enactment (including the 1954 Act and the 1995 Act)
includes all modifications, extensions, amendments and re-enactments of
such statute in force for the time being and all instruments, orders,
notices, regulations, directions, bye-laws, permissions and plans for
the time being made, issued or given under them or deriving validity
from them.
1.2.6 Anything requiring the consent or approval of the Landlord is
conditional also on the consent or approval of any Superior Landlord
and any mortgagee being given (if required under the terms of the
relevant lease or mortgage) and a consent or approval from the Landlord
is not effective for the purposes of this Lease unless it is in writing
and signed by or on behalf of the Landlord.
1.2.7 Provisions are to be construed independently and if any provision is
void or wholly or partly unenforceable, then that provision, to the
extent that it is unenforceable, shall be deemed not to form part of
this Lease, but the validity and enforceability of the remainder of
that provision or of the Lease shall not be affected.
1.2.8 A reference to a numbered clause, schedule or paragraph is a reference
to the relevant clause, schedule or paragraph in this Lease.
1.2.9 Headings to clauses, schedules and paragraphs are for convenience only
and do not affect the meaning of this Lease.
1.2.10 The words INCLUDING and IN PARTICULAR shall be construed as being by
way of illustration or emphasis only and shall not limit the generality
of the preceding words.
1.2.11 A reference to the Adjoining Property, the Building, the Common Parts,
the Lettable Areas, the Premises or the Retained Parts shall include in
each case each and every part of the same.
2 DEMISE AND RENTS
The Landlord demises to the Tenant the Premises for 10 years beginning
on and including 25 March 2005
together with the rights and easements specified in Schedule 2
except and reserving the rights and easements specified in Schedule 3
subject to (and where applicable with the benefit of) the covenants
conditions stipulations sections reservations easements and other
matters referred to or contained in the Rent Charge Deed subject also
to [the provisions of the documents listed in Schedule 4 and] all
rights, easements, quasi-easements, privileges, covenants, restrictions
and stipulations affecting the Premises
5
paying to the Landlord during the Term:
(a) the Rent by equal quarterly payments in advance on the usual
quarter days and proportionately for any period of less than a
year, the first payment being a proportionate sum for the
period from and including Rent Commencement Date to the day
before the quarter day the Rent Commencement Date, and to be
made on the Rent Commencement Date; and
(b) on demand as additional rent (and recoverable as rent):
(i) the Insurance Rent;
(ii) the Service Charge; and
(iii) all other moneys (including VAT) payable by
the Tenant under this Lease.
3 TENANT'S COVENANTS
The Tenant covenants with the Landlord throughout the Term to comply
with the requirements of this Clause 3.
3.1 RENT
3.1.1 The Tenant shall pay the Rent, Insurance Rent, Service Charge and all
other moneys (including VAT) payable by the Tenant under this Lease at
the times and in the manner specified in this Lease.
3.1.2 The Tenant shall not exercise or seek to exercise any right or claim to
legal or equitable set-off, or to withhold payment of any of the Rent,
Insurance Rent, Service Charge or any other moneys (including VAT)
payable by the Tenant under this Lease.
3.1.3 The Tenant shall pay the Rent by banker's order or credit transfer to
any bank account in the United Kingdom designated by the Landlord, if
the Landlord gives the Tenant Notice to that effect.
3.2 INTEREST
The Tenant shall pay Interest on:
(a) any Rent (whether or not formally demanded) and VAT on the
Rent if applicable which remains unpaid after the date when
payment is due; and
(b) any other sum of money payable to the Landlord by the Tenant
under this Lease which is not paid within five Working Days
after the date when payment is due.
3.3 VAT
3.3.1 The consideration for any supply made by the Landlord under this Lease
is exclusive of VAT.
3.3.2 The Tenant shall pay to the Landlord an amount equal to any applicable
VAT in addition to any such consideration at the same time and in the
same manner as that consideration.
3.3.3 In every case where the Tenant is required to reimburse the Landlord
for any payment made by the Landlord under the terms of or in
connection with this Lease, the amount to be reimbursed shall include
an amount equal to the amount of any VAT payable by the Landlord on
that payment, except to the extent that the Landlord can recover that
VAT as input tax Provided that where the Landlord makes a taxable
supply the Landlord supplies a valid VAT invoice.
3.4 RATES AND OUTGOINGS
3.4.1 The Tenant shall pay and indemnify the Landlord against all rates,
taxes, duties, assessments, impositions, charges and other outgoings of
any type payable in respect of the Premises or by the owner or occupier
of them (except any tax assessed on the Landlord in respect of its
ownership, rental income from or dealing with its interest in the
Premises).
6
3.4.2 The Tenant shall pay and indemnify the Landlord against the proportion
properly attributable to the Premises of any such outgoings which are
payable in respect of any premises (including the Building) of which
the Premises form part.
3.4.3 The Tenant shall pay and indemnify the Landlord against all charges for
supplies of Utilities to the Premises during the Term, including any
connection charges, standing charges and meter rents.
3.4.4
(a) On the date fourteen days after written demand by the Landlord
in respect of such payment to pay to or to the order of the
Landlord the Due Proportion of seven decimal point one four
seven per centum (7.147%) of the Estate Rentcharge (being the
part of the Estate Rentcharge which has been legally
apportioned to the Site) and to keep the Landlord effectively
indemnified against payment of such part provided always that
all moneys paid by the Tenant to the Landlord to discharge
such part of the Estate Rentcharge as aforesaid shall be paid
to the Landlord upon trust to apply the same solely in meeting
or discharging the corresponding liability of the Landlord to
pay that part of the Estate Rentcharge.
(b) If so required by the Landlord to pay to the Landlord in
advance on the quarter day immediately preceding the End of
the Term a sum ("provisional sum") on account of the part of
the Estate Rentcharge which will be or become payable in
respect of the period ("end period") between the end of the
then latest period ("relevant period") in respect of which the
Estate Rentcharge has been paid and the End of the Term such
provisional sum to be equal to the amount payable in respect
of the part of the Estate Rentcharge for the relevant period
and notwithstanding the End of the Term the Tenant's
obligations under this clause 3.4.6 (and such other clauses of
this Lease as maybe necessary to give effect thereto) shall
continue in force until all moneys payable in respect of the
part of the Estate Rentcharge for the end period have been
duly paid credit being given by the Landlord for any
provisional sum paid by the Tenant as aforesaid and all moneys
paid to the Landlord under this clause 3.4.6 shall be imbued
with the like trust as is referred to in the proviso to clause
3.4.6 and subject thereto shall be paid and accounted for
between the Landlord and the Tenant as hereinbefore provided.
3.4.5 The Tenant shall indemnify the Landlord against any loss of rating (or
similar) relief which the Landlord suffers if such relief is given to
the Tenant in relation to any period before the End of the Term.
3.5 REPAIR
3.5.1 The Tenant shall keep the Premises in good and substantial repair and
condition (but the Tenant shall not be liable to repair or make good
damage to the Premises by the Insured Risks, except to the extent that
the insurance has been invalidated or payment of insurance moneys is
refused because of any act, neglect or default of the Tenant or the
Tenant's Personnel) provided that the Tenant shall keep the Premises in
no worse a state of repair and condition than as set out in the
Schedule of Condition and not be required to put the Premises into any
better condition than as set out in the Schedule of Condition.
3.5.2 The Tenant shall replace with new items of no lesser quality than the
original (when new) any landlord's fixtures and fittings which at any
time during the Term become missing, damaged, broken or destroyed.
3.5.3 Without prejudice to the generality of Clauses 3.5.1 and 3.5.2 the
Tenant shall replace the carpets whenever necessary and in any case at
the End of the Term with carpets of no lesser quality than the original
(when new) and of a design and colour approved by the Landlord such
approval not to be unreasonably withheld or delayed provided that the
Tenant shall keep the Premises in no worse a state of repair and
condition than as set out in the Schedule of Condition and not be
required to put the Premises into any better condition.
3.5.4
3.6 DECORATION
3.6.1 The Tenant shall keep the Premises decorated to a high standard and in
a no worse or better state of decoration than as set out in the
Schedule of Condition.
3.6.2 In the fifth year of the Term and in the last three months before the
End of the Term the Tenant shall decorate (with two coats of good
quality paint) or otherwise treat as appropriate all internal parts of
the Premises in a good and workmanlike manner and to the satisfaction
of the Surveyor (such decoration and treatment in the last three months
of the Term to be in such colours and materials as the Landlord may
approve such approval not to be unreasonably withheld or delayed).
7
3.7 CLEANING
The Tenant shall keep the Premises in a clean and tidy condition and
free of vermin and pests and at least once in every month shall clean
both sides of all "windows and window frames and all other glass in the
Premises.
3.8 ALTERATIONS
3.8.1 The Tenant shall not alter or interfere with any part of the Building
which is not included in the Premises.
3.8.2 The Tenant shall make no alteration or addition to the Premises except
as permitted by Clause 3.8.3.
3.8.3 The Tenant may make the following alterations:
(a) an alteration to the interior of the Premises which does not
alter or in any way affect the whole or any part of the
structure of the Building;
(b) the installation of or an alteration to a Conduit forming part
of the Premises; and
(c) such alterations as the Tenant may be obliged to carry out
pursuant to any Enactment
with the Landlord's Consent (which shall not be unreasonably withheld
or delayed and shall be contained in a formal licence).
3.8.4 Before consenting to any alteration under Clause 3.8.3 the Landlord may
require:
(a) the submission to the Landlord of drawings and specifications
(in triplicate) showing the proposed alteration;
(b) the execution of the formal licence to carry out the proposed
alteration referred to in Clause 3.8.3, in such form as the
Landlord requires acting reasonably, which may incorporate a
covenant for the reinstatement of the Premises at the End of
the Term, and such assurances, warranties and further
covenants (including any from any relevant third party) as the
Landlord requires acting reasonably; and
(c) if it is reasonable for the Landlord to require it, the
provision of security (by way of bond, the deposit of money or
otherwise) sufficient to enable the Landlord to complete or
reinstate the works if the Tenant begins but does not complete
them within a reasonable time, such security to be provided
before the works are begun and to be released when they have
been completed to the satisfaction of the Surveyor acting
reasonably.
3.8.5 The Tenant shall not install or erect any exterior lighting, shade,
canopy, awning or other structure in front of or elsewhere outside the
Premises.
3.9 OVERLOADING OF FLOORS AND SERVICES
3.9.1 The Tenant shall not overload the floors of the Premises or suspend any
excessive weight from the roofs, ceilings, walls or structure of the
Building and shall not overload the Conduits or Utilities in or serving
the Premises or the Building.
3.9.2 The Tenant shall not do anything which may subject the Premises or the
Building to any strain beyond that which they are designed to bear
(with due margin for safety).
3.10 AERIALS, SIGNS AND ADVERTISEMENTS
3.10.1 The Tenant shall not erect or display on the exterior of the Premises,
or in the windows of the Premises so as to be visible from outside, any
flag, aerial, mast, satellite dish, advertisement, television, moving
display, poster, notice or other sign or thing, without the Landlord's
Consent (which shall not be unreasonably withheld or delayed) as to its
size, style and position.
3.10.2 The Tenant shall display and maintain all notices which the Landlord
may from time to time require acting reasonably to be displayed at the
Premises.
3.11 DEFAULT NOTICES
8
3.11.1 If the Landlord gives to the Tenant Notice of any defects, wants of
repair or breaches of the Tenant's Covenants, the Tenant shall within
one month of such Notice, or as soon as reasonably possible in an
emergency, begin and then diligently continue to comply with such
Notice to the satisfaction of the Landlord acting reasonably.
3.11.2 If the Tenant fails to comply with the provisions of Clause , or fails
to complete compliance with the relevant Notice (to the satisfaction of
the Landlord acting reasonably) within two months (or sooner in an
emergency), the Landlord may enter the Premises and carry out all or
any of the works referred to in the Notice and the Tenant shall pay to
the Landlord on demand as a debt all costs and expenses (including
professional fees) thereby incurred.
3.12 USE
3.12.1 The Tenant shall not use the Premises except for the Permitted Use.
3.12.2 The Tenant shall secure the Premises against intrusion when not in use
and shall not leave the Premises continuously unoccupied for more than
28 consecutive days without both notifying the Landlord and providing
or paying for such caretaking or security arrangements as the Landlord
may reasonably require in order to protect the Premises from vandalism,
theft or unlawful occupation.
3.12.3 The Tenant shall ensure that the Landlord has written notice of the
name, home address and home telephone number of at least two keyholders
of the Premises and shall provide the Landlord with a set of keys to
the Premises to enable the Landlord to enter the Premises for security
purposes or in an emergency.
3.13 NUISANCE AND PROHIBITED USES
3.13.1 Nuisance
(a) The Tenant shall not do anything in or about the Premises or
the Building which is or might be or become a nuisance or
which causes or might cause danger, damage, annoyance,
inconvenience or disturbance to the Landlord or to the owners,
tenants or occupiers of the Adjoining Property, or which might
be injurious to the value, tone, amenity or character of the
Premises or the Building.
(b) If any nuisance occurs at the Premises caused by the Tenant,
its invitees or licencees, the Tenant shall forthwith take all
necessary action to abate it.
3.13.2 The Tenant shall not emit from the Premises any noise, vibration,
smell, fumes, smoke, dust, soot, ash, grit or any noxious or
deleterious substances, or effluvia.
3.13.3 Conduits
(a) The Tenant shall not overload any Conduits or discharge into
any Conduits any noxious or deleterious effluent, fluid or
substance or any substance which might cause an obstruction,
or might be or become a source of danger, or which might cause
damage or injury to any person or be deleterious to health, or
which might harm the Premises or any Adjoining Property or any
Conduits.
(b) The Tenant shall take due precautions to avoid water freezing
in Conduits within the Premises.
3.13.4 The Tenant shall make available for collection any refuse as and when
specified from time to time by the Landlord and shall not deposit on
the Common Parts or on any other part of the Building any waste,
rubbish or refuse other than in proper receptacles provided for the
purpose.
3.13.5 The Tenant shall not do or omit to do in relation to the Premises or
their use or occupation anything by reason of which the Landlord may
incur any liability for costs, any penalty, damages, compensation or
otherwise Provided it is accepted that use for the Permitted use in
accordance with the terms of this Lease shall not be in breach of this
clause.
3.13.6 The Tenant shall not:
(a) use the Premises for any public or political meeting, nor for
any dangerous, noisy, noxious or offensive trade, business or
occupation, nor for any illegal or immoral purpose, nor for
residential or sleeping purposes; or
(b) invite the public generally, or any specified section of it,
to come to the Premises (except by prior appointment) and
shall not use the Premises for a purpose which attracts casual
callers.
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3.13.7 The Tenant shall not conduct on the Premises any gambling, betting or
gaming and shall not play or use any musical instrument, loud speaker,
sound amplification equipment or similar apparatus in such a manner as
to be audible outside the Premises and shall not hold any auction on
the Premises.
3.13.8 The Tenant shall not:
(a) load or unload any goods arriving at or dispatched from the
Premises in such a way that access to or egress from any
Adjoining Property is obstructed; or
(b) load, unload, or accept the delivery or despatch of goods
other than via the entrances designated for such purposes and
at the times stipulated by the Landlord; or
(c) use the service areas for loading or unloading at times other
than those stipulated by the Landlord.
3.13.9 The Tenant shall not bring onto or keep on the Premises, or do, any
thing which might increase the risk of damage or destruction to the
Building.
3.13.10 The Tenant shall not keep or operate in or on the Premises any
machinery which is unduly noisy or causes vibration or which is likely
to annoy or disturb the owners or occupiers of any Adjoining Property.
3.13.11 The Tenant shall perform and observe the covenants and conditions
relating to parking of cars set out in Schedule 8.
3.14 ALIENATION
3.14.1 DEFINITIONS
In this Clause the following definitions apply.
ASSIGNEE means a person to whom the Tenant proposes to assign the whole
of the Premises.
AUTHORISED GUARANTEE AGREEMENT means an authorised guarantee agreement
within the meaning of section 16 of the 1995 Act in such form as the
Landlord requires acting reasonably.
QUALIFYING PERSON means a person who is able to demonstrate to the
satisfaction of the Landlord acting reasonably that it is financially
able to meet all of the Tenant's Covenants as the Tenant is, both at
the date of the Tenant's application for Landlord's Consent to assign
and at the date of the proposed assignment, (and an Assignee shall be
treated as a Qualifying Person if a Qualifying Person acts as surety
for the Assignee and covenants with the Landlord in the terms set out
in Schedule 7).
SUBTENANT means a person to whom the Tenant proposes to sublet the
whole of the Premises.
3.14.2 ALIENATION PROHIBITED
Unless permitted by this Clause the Tenant shall not do any of the
following:
(a) assign or sublet the Premises or agree to do so (unless such
agreement is conditional upon obtaining the Landlord's
Consent);
(b) mortgage or charge the Premises;
(c) hold the Premises expressly or impliedly as trustee or agent
or otherwise for the benefit of another person;
(d) part with possession or occupation of the Premises;
(e) share possession or occupation of the Premises; and
(f) allow anyone other than the Tenant, any lawful subtenant or
their respective officers and employees to occupy the
Premises.
3.14.3 ASSIGNMENT
(a) The Tenant shall not assign part (as distinct from the whole)
of the Premises.
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(b) The Tenant may assign the whole of the Premises with the
Landlord's Consent (which shall not be unreasonably withheld
or delayed and shall be contained in a formal licence).
(c) The Landlord may grant its consent to an assignment subject to
the condition that, where the Assignee is not a Qualifying
Person:
(i) the Tenant has entered into an Authorised Guarantee
Agreement; and
(ii) the Surety has entered into an agreement (if such
agreement may be required lawfully) in such terms as
the Landlord requires acting reasonably, guaranteeing
the performance by the Tenant of its obligations
under the Authorised Guarantee Agreement.
(d) The Landlord and the Tenant agree that, for the purposes of
section 19(1A) of the Landlord and Tenant Act 1927, the
Landlord may refuse its consent to an assignment in the
following circumstances:
(i) the Assignee is a company in the same Group as the
Tenant or is an associated company of the Tenant
(within the meaning of section 416 of the Income and
Corporation Taxes Act 1988) unless such company or a
surety for such company would otherwise be a
Qualifying Person and has been demonstrated to the
reasonable satisfaction of the Landlord of having a
covenant strength equivalent to or greater than the
Tenant at the date when the Tenant first became
liable on the Lessees convents in this Lease; and/or
(iii) any Rent or any other money due under this Lease
remains unpaid.
(e) Nothing in this clause 3.14.3 shall prevent the Landlord,
provided it is reasonable to do so, from granting consent to
an assignment subject to any other reasonable condition or
refusing consent to an assignment in any other circumstance.
3.14.4 CHARGING
(a) The Tenant shall not charge a part (as distinct from the
whole) of the Premises.
(b) The Tenant may charge the whole of the Premises to a bank or
another financial institution for a bona fide commercial
purpose, with the Landlord's Consent (which shall not be
unreasonably withheld or delayed and shall be contained in a
formal licence).
3.14.5 SUBLETTING
(a) The Tenant shall not sublet part (as distinct from the whole)
of the Premises.
(b) The Tenant may sublet the whole of the Premises with the
Landlord's Consent (which shall not be unreasonably withheld
or delayed and shall be contained in a formal licence) if:
(i) the Subtenant has covenanted by deed with the
Landlord in such form as the Landlord requires acting
reasonably that during the term of the sublease the
Subtenant and its successors in title will comply
with the lessee's obligations in the sublease and the
Tenant's Covenants except the covenant to pay the
Rent; and
(ii) (if the Subtenant is a corporate body and the
Landlord so requires acting reasonably) the Subtenant
has procured a covenant by deed with the Landlord, by
two individuals or a company acceptable to the
Landlord (acting reasonably), to act as surety for
the Subtenant as set out in Schedule 7.
(c) The Tenant shall not sublet the whole of the Premises except
by way of a sublease which:
(i) is granted without any fine or premium;
(ii) reserves a yearly rent, payable in advance on the
usual quarter days, at least as high as the best rent
which the Tenant ought reasonably to obtain in the
open market or the Rent then payable under this Lease
whichever is higher on the grant of such sublease and
provides for the review of the yearly rent at the
same times and on the same basis as in this Lease;
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(iii) requires the Subtenant to obtain the Landlord's
Consent (which shall not be unreasonably withheld or
delayed) to an assignment of the premises comprised
in the sublease and requires the assignee on any such
assignment to enter into direct covenants with the
Landlord to the same effect as those in Clause
3.14.5(b)(i); and
(iv) is in the same form as this Lease (except as to Rent
and any amendments approved by the Landlord, such
approval not to be unreasonably withheld or delayed,
but including provisions enabling the Tenant to
obtain vacant possession on or before the date of any
determination of this Lease) except that further
subletting shall be prohibited; and
(v) contains an agreement validly excluding in relation
to the tenancy created by such sublease the
provisions of sections 24-28 of the 1954 Act;
(d) The Tenant shall:
(i) enforce and shall not waive or vary the provisions of
a sublease (including the dates on which the rent
installments are payable or paid) and in particular
shall not enter into any collateral deed or side
letter varying, or relieving the Subtenant from, any
obligation in the sublease, or reduce, waive,
commute, set-off or otherwise vary, whether directly
or indirectly, the rents reserved by the sublease
(except in accordance with the sublease's rent review
provisions);
(ii) operate at the relevant times the rent review
provisions contained in every sublease, but shall not
agree a reviewed rent without the Landlord's Consent
(and, if the rent review is determined by a surveyor
pursuant to the review provisions of the sublease, to
procure that the Landlord's representations as to the
rent payable are made to such surveyor); and
(iii) (if the Tenant exercises its option to determine this
Lease in accordance with Clause 8.16) forthwith
exercise its option to determine each sublease and
obtain vacant possession of the Premises on or before
the date of determination of this Lease; and
(iv) upon the termination of any sublease (however it
occurs) not accept any rent from any subtenant or
permit it to hold over or acknowledge any tenancy but
forthwith take all necessary steps at the Tenant's
expense to secure possession of the sublet premises.
3.14.6 GROUP SHARING
The Tenant may share occupation of the Premises with a company in the
same Group:
(a) for so long as both the Tenant and that company remain members
of the same Group;
(b) provided that no tenancy is created; and
(c) provided that within 15 Working Days of such sharing beginning
the Landlord receives Notice of the identity of the company
sharing occupation and the address of its registered office.
3.14.7 ALIENATION
Not to allow any person other than the Tenant's Personnel to use any of
the Allotted Spaces, . provided that the Tenant may grant to any
permitted Subtenant (whilst such person is such a Subtenant) the right
to use the Allotted Spaces any such right to be granted subject to the
terms and conditions contained in this Lease in relation to use of such
spaces and the Car Park.
3.14.8 DISPOSITIONS
The Tenant shall within 20 Working Days of any assignment, charge or
underlease or of any other devolution of this Lease, or of any interest
deriving from this Lease, give Notice of such devolution to the
Landlord's solicitors, produce for registration the original or a
certified copy of the document effecting or evidencing such devolution
(together with a copy of any Authorised Guarantee Agreement, made
pursuant to Clause 3.14.3(c)(i)) and pay such reasonable registration
fee as the Landlord's solicitors may require, being not less than
(pound)50 (plus VAT).
3.14.9 DISCLOSING INFORMATION
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The Tenant shall:
(a) notify the Landlord forthwith of any change of name, address
or registered office of the Tenant or any Surety;
(b) on demand give the Landlord full details of all derivative
interests in the Premises, including details of the actual
user, rents, rent reviews and service and maintenance charges
payable in respect of them; and
(c) give the Landlord such further information relating to such
derivative interests as the Landlord may properly require
(including names, addresses and telephone numbers of the
keyholders of the Premises).
3.15 COMPLIANCE WITH ENACTMENTS ETC.
3.15.1 ENACTMENTS
(a) The Tenant shall:
(i) observe and comply with all Enactments applicable to
the Premises and/or their occupation and use or the
Tenant's use of other parts of the Building;
(ii) carry out (always complying with the provisions of
Clause 3.8) such works to the Premises as are
required by, or as may be necessary to prevent any
potential liability or claim under, any Enactment;
and
(iii) promptly give Notice to the Landlord of any damage to
or defect in the Premises which might give rise to
any obligation, duty of care or liability on the
Landlord pursuant to any Enactment or otherwise.
(b) If the Tenant receives pursuant to any Enactment any notice,
order or direction, or a proposal for one, or any
communication it shall forthwith produce a copy to the
Landlord and if in the Landlord's opinion acting reasonably
such notice, order or direction is contrary to the interests
of the Landlord the Tenant shall at its own expense make such
objection or representation against it as the Landlord
requires acting reasonably.
(c) Where any such notice, order or direction requires works to be
carried out, the Tenant shall, so far as the same and any
relevant Enactment permits, also comply with the provisions of
this Lease in relation to such works save where such works are
the Landlord's responsibility under this Lease.
3.15.2 FIRE PRECAUTIONS AND EQUIPMENT
(a) The Tenant shall comply with the requirements and
recommendations of the fire authority, the insurers of the
Building and the Landlord in relation to fire precautions
affecting the Premises.
(b) The Tenant shall not obstruct the access to or means of
working of any fire fighting and extinguishing appliances or
the means of escape from the Premises or the Building in case
of fire or other emergency and shall not use the fire escape
doors or corridors which are solely used for escape except in
emergency.
3.15.3 ENVIRONMENTAL LAW
(a) The Tenant shall not cause or permit any Contamination of the
Premises or the Building or any Adjoining Property.
(b) The Tenant shall inform the Landlord as soon as practicable
after the Tenant becomes aware of any breach or material
non-compliance with Environmental Law in relation to the
Premises and/or the Permitted Use.
Provided that the Tenant shall not be liable to do any act or thing in
relation to Contamination that existed prior to the date of the
Agreement for Lease.
3.16 PLANNING
3.16.1 The Tenant shall make no application under the Planning Enactments in
relation to the Premises or the Building without the Landlord's Consent
and then only in a form previously approved by the Landlord (which
consent and approval shall not be unreasonably withheld or delayed in
relation to the Premises where works permitted by the Landlord under
Clause 3.8 require planning permission).
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3.16.2 The Tenant shall not implement a planning permission without the
Landlord's Consent (such consent not to be. unreasonably withheld or
delayed where planning permission is granted pursuant to an application
approved by the Landlord and where the Landlord's interests are not
likely to be prejudiced by the implementation of such planning
permission).
3.16.3 Where a planning permission imposes conditions the Landlord may before
giving consent to its implementation require the Tenant:
(a) to provide reasonable security for compliance with the
conditions; and
(b) to undertake that if it implements the planning permission it
will carry out before the End of the Term all works which the
planning conditions require.
3.16.4 Where on the Tenant's application a planning permission is refused or
granted subject to conditions and, in the Landlord's opinion acting
reasonably, the Landlord's interests are thereby materially prejudiced
and a planning appeal is justified, then the Landlord may give Notice
to the Tenant of its desire that a planning appeal be made and, if the
Tenant does not make such an appeal (and give Notice of it to the
Landlord) within two months of such Notice of the Landlord's desire:
(a) the Landlord may make such an appeal as the Tenant's agent;
and
(b) if the Landlord does so, the Tenant shall give to the Landlord
promptly such assistance for the pursuit of such appeal
(including appointing the Landlord as its agent) as the
Landlord acting reasonably requests.
3.17 YIELDING UP
3.17.1 Immediately prior to the End of the Term the Tenant shall at its own
cost:
(a) remove from the Premises any moulding, sign, writing or
painting of the name or business of the Tenant or the
occupiers of the Premises and all tenant's fixtures, fittings,
furniture, plant, machinery and effects and make good to the
Landlord's satisfaction acting reasonably all damage caused by
such removal;
(b) ensure that wherever any items removed in accordance with
Clause 3.17.1(a) are connected to or take supplies from any
Utilities, they are disconnected and made safe; and
(c) if so required by the Landlord (but not otherwise) remove and
make good all alterations and additions made to the Premises
during the Term and well and substantially reinstate the
Premises in such manner as the Landlord may direct and to its
satisfaction acting reasonably save that the Tenant shall not
be required to reinstate the works set out in the Agreement
for Lease.
3.17.2 At the End of the Term the Tenant shall deliver all keys of the
Premises to the Landlord and yield up the Premises to the Landlord with
vacant possession and in a state of repair and condition and in all
other respects in compliance with the Tenant's Covenants.
3.18 ENCROACHMENTS, EASEMENTS AND THIRD PARTY RIGHTS
3.18.1 The Tenant shall not stop up or obstruct any window or light belonging
to the Premises and shall not permit any new window, light, opening,
doorway, passage, Conduit or other encroachment or easement to be made
or acquired into, on or over the Premises and if any person attempts to
make or acquire any encroachment or easement the Tenant shall
immediately on becoming aware of it give Notice to the Landlord and at
the request of the Landlord but at the cost of the Tenant shall adopt
such means as the Landlord may reasonably require for preventing any
such encroachment or the acquisition of any such easement.
3.18.2 Without prejudice to the provisions of Clause 3.14, the Tenant shall
not grant any right in favour of any third party which may continue
after the End of the Term (including any right in favour of a
communications supplier).
3.19 RELETTING AND SALE NOTICES
The Tenant shall permit the Landlord at all reasonable times on
reasonable prior notice to enter the Premises and affix and retain
without interference on suitable parts of the Premises (but not so as
materially to affect the access of light and air to the Premises)
during the last six months of the Term notices for reletting the
Premises and at any time during the Term notices for selling the
Landlord's interest in the Premises or the Building and shall not
remove or obscure such notices and shall permit all persons with the
written authority of the Landlord to view the Premises at reasonable
hours in the daytime on prior appointment.
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3.20 LANDLORD'S COSTS
The Tenant shall pay on demand and indemnify the Landlord against all
costs, fees, charges, disbursements and expenses incurred by the
Landlord including those payable to solicitors, counsel, architects,
surveyors, bailiffs and the Landlord's internal management fee in
relation to or in contemplation of:
(a) the preparation and service of a notice under section 146 of
the Law of Property Act 1925 and any proceedings under
sections 146 or 147 of that Act even if forfeiture is avoided
otherwise than by relief granted by the Court;
(b) the preparation and service of notices and schedules relating
to wants of repair whether served during or within 4 months
after the End of the Term;
(c) the recovery or attempted recovery of arrears of Rent or other
additional rents, or other sums due from the Tenant or in
remedying any breach of the Tenant's Covenants;
(d) any application for consent or approval made necessary by this
Lease whether or not consent or approval is granted or the
application is withdrawn the Landlord's costs for professional
fees in connection with any such application for consent or
approval to be reasonable and proper fees except where an
English Court rules that such consent is unreasonably
withheld;
(e) the supervision by the Landlord of any works which the Tenant
is obliged to carry out pursuant to any of the provisions of
this Lease; and
(f) any risk assessment which the Landlord must carry out in order
to comply with any statutory or other obligation of the
Landlord.
3.21 INDEMNITY
The Tenant shall indemnify and keep the Landlord fully indemnified
against all actions, proceedings, claims, demands, losses, costs,
expenses, damages and liabilities arising directly or indirectly out of
the state of repair or use or condition of the Premises or any breach
of the Tenant's Covenants or any act, default or negligence of the
Tenant or the Tenant's Personnel.
3.22 REGULATIONS
The Tenant shall comply with such regulations in connection with the
use and operation of the Premises and/or the Building as are made by
the Landlord from time to time and communicated to the Tenant in
writing provided where there is a conflict between the terms of the
Lease and the Regulations the terms of the Lease shall prevail.
3.23 NEW SURETY
If an Insolvency Event occurs in relation to the Surety then the Tenant
shall within 10 Working Days give Notice of that fact to the Landlord
and, if the Landlord so requires, the Tenant shall within 20 Working
Days of service of such Notice procure that some other person
acceptable to the Landlord executes and delivers to the Landlord a deed
containing a covenant with the Landlord as a primary obligation in the
same terms as those entered into by the said Surety.
3.24 OTHER OBLIGATIONS
The Tenant shall comply with the agreements, covenants, restrictions
and stipulations referred to in the deeds and documents listed in
Schedule 4 so far as they are still subsisting and capable of taking
effect and relate to the Premises.
3.25 REGISTRATION
On completion of this Lease, the Tenant shall register this Lease, and
all rights granted or reserved by this Lease, at the Land Registry and,
immediately after registration, shall provide the Landlord with
official copies of the register showing the Tenant as proprietor Of
this Lease and showing that all rights granted or reserved by this
Lease are properly noted against the affected titles.
15
4 LANDLORD'S COVENANTS
The Landlord covenants with the Tenant throughout the Term to comply
with the requirements of this Clause 4.
4.1 QUIET ENJOYMENT
The Landlord shall permit the Tenant peaceably and quietly to hold and
enjoy the Premises without any interruption or disturbance from or by
the Landlord or any person claiming under or in trust for the Landlord.
4.2 SERVICES
The Landlord shall use its reasonable endeavours to carry out the
Services PROVIDED THAT the Landlord will have no liability to the
Tenant:
(a) for any failure to provide Services during any period when the
Tenant is in arrears with payment of Rent, Insurance Rent,
Service Charge or any other moneys due from the Tenant to the
Landlord under the Lease;
(b) for the interruption of a Service for reasons of inspection,
maintenance, repair, cleaning or other works (in which event
the Landlord will restore the Service as soon as reasonably
practicable);
(c) for failure to provide a Service due to damage, breakdown,
inclement weather, shortage of fuel or water, or any other
cause beyond the Landlord's reasonable control (although the
Landlord will then take all reasonable steps to restore such
Service or provide an alternative Service as soon as
reasonably practicable);
(d) for withdrawal of a Service if the Landlord considers, acting
reasonably, it is no longer appropriate provided that the
withdrawal of such service does not materially adversely
affect the Tenants use and enjoyment of the Premises;
(e) for temporary closure of the Common Parts (subject to adequate
means of access to the Premises being maintained) if necessary
to prevent their dedication or the accrual of any third party
rights over them or for the purpose of inspection,
maintenance, repair, cleaning or other works to them; or
(f) in respect of any act, omission or negligence of any employee
of the Landlord or other person providing or purporting to
provide any Service.
5 INSURANCE
The Landlord and the Tenant covenant with each other throughout the
Term to comply with the requirements of this Clause 5.
5.1 LANDLORD TO INSURE
5.1.1 The Landlord shall insure against damage or destruction by the Insured
Risks in a reputable insurance office or with such underwriters and
through such agency as the Landlord may choose from time to time and
(except to the extent that the insurance is invalidated by any act or
default of the Tenant or the Tenant's Personnel) such insurance shall
cover:
(a) the Building (excluding tenant's fixtures and fittings) for
such sum as the Landlord acting reasonably estimates to be
sufficient to cover the full cost of reinstatement assuming
total loss, including professional fees, the cost of obtaining
all necessary consents, the cost of demolition, site clearance
and shoring up, ancillary costs, all applicable VAT and
appropriate allowance for inflation but the Landlord shall not
be required to include in the full cost of reinstatement any
alteration or addition to the Premises carried out by the
Tenant unless:
(i) the alteration or addition was carried out in
accordance with the provisions of this Lease; and
(ii) following completion of the alteration or addition
the Tenant has given the Landlord Notice of the
necessary increase in the full cost of reinstatement;
16
(b) the loss of the Rent (plus any applicable VAT) which the
Landlord acting reasonably estimates to be payable under this
Lease (taking account of any review of the Rent which may
become due under this Lease) for three years or such longer
period as the Landlord from time to time considers acting
reasonably sufficient to complete the reinstatement of the
Building following a total loss; and
(c) third party and public liability at the Building for such sum
as the Landlord acting reasonably considers prudent from time
to time.
5.1.2 At the request of the Tenant (but no more than once a year) the
Landlord shall produce to the Tenant reasonable evidence of the terms
of the insurance policy and the fact that the policy is in force.
5.2 SUSPENSION OF RENT
If the Building or its access to the Premises or any part of it is
damaged or destroyed by any of the Insured Risks so that the Premises
are unfit for use and occupation or inaccessible and the insurance has
not been invalidated or payment of any insurance moneys refused as a
result of some act or default of the Tenant or the Tenant's Personnel
then:
(a) the Rent or a fair proportion of it according to the nature
and extent of the damage sustained shall be suspended until
the earlier of:
(i) the Premises being fit for use and occupation and
accessible; and
(ii) the expiry of three years (or such longer period as
the Landlord has insured loss of the Rent pursuant to
Clause 5.1.1(b)) from the date of the damage or
destruction; and
(b) any dispute over such suspension shall be referred to a single
arbitrator appointed by agreement between the Landlord and the
Tenant or otherwise (on the application of either Party) by or
on behalf of the President for the time being of the Royal
Institution of Chartered Surveyors (or any successor
organisation) in accordance with the Arbitration Act 1996.
5.3 REINSTATEMENT FOLLOWING DAMAGE OR DESTRUCTION
If the Building or its access to the Premises or any part of it is
damaged or destroyed by any of the Insured Risks so as to make the
Premises unfit for use and occupation or inaccessible then unless
payment of the insurance moneys is refused as a result of any act or
default of the Tenant or the Tenant's Personnel:
(a) the Landlord shall use its reasonable endeavours to obtain all
consents necessary to enable the Building to be rebuilt and
reinstated but shall not be obliged to appeal against any
refusal to grant them; and
(b) the Landlord, save in any of the circumstances referred to in
Clause 5.4.1, shall apply all insurance moneys received in
respect of such damage or destruction (other than any in
respect of loss of the Rent or additional rents) in connection
with replacing the Building or the parts, as the case may be,
so damaged or destroyed with such premises as the Landlord
elects to build, but so that the Premises are of a
substantially commensurate size and with amenities no worse
than they were prior to the damage or destruction.
5.4 REINSTATEMENT PREVENTED ETC.
5.4.1 The circumstances referred to in Clause 5.3(b) are:
(a) the insurance policy has been invalidated or the payment of
insurance moneys is refused, unless the Tenant reimburses the
Landlord with all such moneys in accordance with Clause 5.5.3;
(b) despite having used its reasonable endeavours to do so, the
Landlord is unable to obtain all necessary consents on terms
acceptable to the Landlord acting reasonably;
(c) the necessary labour and materials cannot be obtained at
reasonable cost;
(d) the destruction or damage occurred during the last three years
of the Term;
(e) the Building has been totally destroyed; and
17
(f) there are other circumstances beyond the Landlord's reasonable
control which would make it uneconomic or not feasible to
carry out works pursuant to Clause 5.3(b) within a reasonable
time.
5.4.2 If the Premises are rendered unfit for occupation and use or
inaccessible by any destruction or damage by any of the Insured Risks
and either:
(a) any of the circumstances mentioned in Clause 5.4.1 applies; or
(b) the Premises have not been rendered fit for occupation and use
and accessible before the insurance for loss of the Rent
effected by the Landlord has expired
then the Landlord may at any time when any of the circumstances
mentioned in (a) or (b) above applies, upon giving to the Tenant
Notice, determine this Lease forthwith (but such determination shall be
without prejudice to any claim by the Landlord in respect of any prior
breach of covenant).
5.4.3 If this Lease is determined pursuant to Clause 5.4.2 then the Landlord
shall be solely entitled to all the insurance moneys.
5.4.4 If any destruction or damage by an Insured Risk (and the insurance has
not been invalidated or payment of any insurance moneys refused as a
result of some act or default of the Tenant or the Tenant's Personnel)
shall render the Premises wholly or partly unfit for occupation and use
or inaccessible and the same shall not have been rendered fit for
occupation and use and accessible when the loss of Rent insurance
effected by the Landlord shall have expired then the Tenant may at any
time after the date falling six months before the Loss of Rent
Insurance has expired give to the Landlord not less than six months'
Notice such Notice to take effect on or after the expiry of the period
of loss of Rent insurance effected by the Landlord to determine this
Lease (but such determination shall be without prejudice to any claim
by either party in respect of any prior breach of covenant) and
thereupon the Landlord shall not be obliged to reinstate or rebuild
the. Premises and any insurance moneys shall belong to the Landlord
absolutely and any dispute as to the date on which the Premises were
rendered unfit for occupation and use or inaccessible shall be referred
to Arbitration as provided in sub-clause 5.2(b).
5.5 TENANT'S INSURANCE OBLIGATIONS
5.5.1 The Tenant shall comply with all the requirements and recommendations
of the insurers in respect of the Building and the Premises.
5.5.2 The Tenant and the Tenant's Personnel shall not do or omit to do
anything that could cause in respect of any policy of insurance in
respect of the Premises and/or any Adjoining Property:
(a) it to become void or voidable (wholly or partly);
(b) any additional insurance premium to become payable;
(c) the payment of any insurance moneys to be refused; or
(d) it to become subject to any excess, exclusion or limitation.
5.5.3 Without prejudice to the indemnity given by the Tenant in Clause 3.21
the Tenant shall on demand pay to the Landlord:
(a) all expenses incurred by the Landlord in reinstating any
policy which the Tenant has caused to be void or voidable;
(b) any increased insurance premium attributable to the Tenant;
(c) an amount equal to all moneys which the Landlord is unable to
recover under any insurance policy as a result of any act or
default of the Tenant or the Tenant's Personnel plus Interest;
and
(d) an amount equal to a fair proportion, of all moneys which the
Landlord is unable to recover under any insurance policy
because of the imposition by the insurer or the acceptance by
the Landlord (acting reasonably) of an obligation to bear part
of an insured loss (commonly called an excess).
5.5.4 The Tenant shall not effect any insurance of the types specified in
Clause 5.1 but if it does so it shall pay to the Landlord all moneys
received as a result of such insurance.
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5.5.5 The Tenant shall give Notice to the Landlord forthwith on the happening
of any event or thing which might affect any insurance policy relating
to the Building or the Premises.
6 FORFEITURE
If and whenever during the Term:
(a) any of the rents reserved by this Lease are unpaid 15 Working
Days after becoming payable (whether or not formally
demanded);
(b) there is a breach of any of the Tenant's Covenants;
(c) there is a breach of any of the covenants given by any Surety;
or
(d) there occurs in relation to the Tenant (or where the Tenant or
any Surety comprises two or more persons there occurs in
relation to any of such persons) an Insolvency Event
then the Landlord may at any time thereafter re-enter the Premises or
any part of them in the name of the whole and thereupon the Term shall
absolutely cease and determine but without prejudice to any rights or
remedies of any Party in respect of any antecedent breach of any of the
obligations contained in this Lease.
7 MISCELLANEOUS
7.1 NO IMPLIED EASEMENTS
Nothing contained in this Lease shall impliedly confer on or grant to
the Tenant any easement, right or privilege other than those expressly
granted by this Lease.
7.2 EXCLUSION OF WARRANTY AS TO USE
Nothing contained in this Lease or in any consent or approval given by
the Landlord pursuant to the terms of this Lease shall imply or warrant
that the Premises or the Building may be used under the Planning
Enactments for the Permitted Use or for any other purpose authorised by
the Landlord and the Tenant hereby acknowledges that the Landlord has
not given or made at any time any representation or warranty that any
such use is or will be or will remain a lawful use under the Planning
Enactments.
7.3 REPRESENTATIONS
The Tenant acknowledges that this Lease has not been entered into in
reliance wholly or partly on any statement or representation made by or
on behalf of the Landlord except any statements and representations
expressly made in this Lease and any written replies made prior to the
grant of this Lease by the Landlord's solicitors in reply to written
questions or enquiries made by the Tenant's solicitors in relation to
the Premises.
7.4 EXCLUSION OF LANDLORD'S LIABILITY
The Landlord shall not incur any liability:
(a) for any inconvenience or any injury or death of any person or
any damage to property arising through mechanical breakdown,
failure or malfunction of any equipment, plant or machinery,
strikes, labour disputes, shortages, malicious damage or
terrorist activity; or
(b) for any other cause or circumstance beyond the reasonable
control of the Landlord.
7.5 COVENANTS RELATING TO ADJOINING PROPERTY
Nothing contained in or implied by this Lease shall give the Tenant the
benefit of or the right to enforce or to prevent the release or
modification of any covenant, agreement or condition entered into by
any person in respect of any property not comprised in this Lease.
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7.6 DISPUTES WITH ADJOINING OCCUPIERS
Any dispute arising between the Tenant and the tenants or occupiers of
any Adjoining Property belonging to the Landlord as to any easement,
quasi-easement, right, privilege or Conduit used in connection with the
Premises or such Adjoining Property shall be determined by the Landlord
acting properly and the proper costs which the Landlord so incurs shall
be paid as the Landlord directs.
7.7 EXCLUSION OF STATUTORY PROVISIONS
7.7.1 The Tenant confirms that before it became contractually bound to enter
into the tenancy created by this Lease:.
(a) The Landlord served on the Tenant a notice ("the Notice")
dated 16 February 2005 in relation to the tenancy created by
this Lease in a form complying with the requirements of
Schedule 1 to the Regulatory Reform (Business Tenancies)
(England and Wales) Order 2003 ("the Order").
(b) The Tenant, or a person duly authorised by the Tenant, in
relation to the Notice made a statutory declaration ("the
Declaration") dated 17 February 2005 in a form complying with
the requirements of Schedule 2 of the Order.
7.7.2 The Tenant further confirms that, where the Declaration was made by a
person other than the Tenant, the declarant was duly authorised by the
Tenant to make the Declaration on the Tenant's behalf.
7.7.3 The Landlord and the Tenant confirm that the agreement to which this
Lease gives effect was made on 24 February 2005.
7.7.4 The Landlord and Tenant agree to exclude the provisions of Section 24
to 28 (inclusive) of the 1954 Act in relation to the tenancy created by
this Lease.
7.8 NOTICES
Section 196 of the Law of Property Act 1925 shall apply to all Notices
served under this Lease but such provisions shall be extended as
follows:
(a) where the expression "Tenant" or "Surety" includes more than
one person service on any one of them shall be deemed to be
service on them all;
(b) any Notice shall be correctly served if it is sent by recorded
delivery post in a stamped addressed envelope, addressed to
the Landlord or to the Tenant or to the Surety as the case may
be, at the last known place of abode or business or registered
office in the United Kingdom or in the case of the Tenant at
the address of the Premises and any Notice sent shall on proof
of post be deemed to have been received; and
(c) any demand or Notice sent by mail shall be treated
conclusively as having been made, given or served on the
second Working Day after the day of posting.
7.9 NEW TENANCY
This Lease creates a "new tenancy" as defined by section 28(1) of the
1995 Act.
7.10 EFFECT OF DOCUMENT
This Lease is intended to be and shall take effect as a deed and shall
be governed by and construed in accordance with the laws of England and
Wales and the Parties irrevocably agree that the courts of England and
Wales shall have exclusive jurisdiction in respect of any dispute,
suit, action or proceedings which may arise out of or in connection
with this Lease.
7.11 COMMENCEMENT
For the avoidance of doubt the provisions of this document (other than
those contained in this Clause) shall not have any effect until this
document has been.
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7.12 THIRD PARTIES
The Parties to this Lease do not intend that any term of this Lease
shall be enforceable solely by virtue of the Contracts (Rights of Third
Parties) Act 1999 by any person who is not a Party.
7.13 REMOVAL OF TENANT'S GOODS
7.13.1 If after the End of the Term any property of the Tenant remains in or
on the Premises and the Tenant fails to remove it within five Working
Days after the Landlord requests it to do so (or has used its
reasonable endeavours to contact the Tenant with such request) then the
Landlord may as the Tenant's agent (and the Tenant appoints the
Landlord to act in that capacity) sell such property.
7.13.2 If:
(a) the Landlord sells any property pursuant to Clause 7.13.1, it
shall hold the sale proceeds (after deducting the costs and
expenses of removal, storage and sale reasonably and properly
incurred and any other debts owed by the Tenant to the
Landlord) to the Tenant's order, provided that the Tenant will
indemnify the Landlord against any liability the Landlord
incurs to any third party whose property the Landlord sells in
the bona fide mistaken belief (which shall be presumed unless
proved otherwise) that such property belonged to the Tenant;
(b) the Tenant does not claim any such sale proceeds within one
week of the end of the Term, then the Landlord may retain such
sale proceeds absolutely.
7.14 RIGHTS OF LIGHT ETC.
The Landlord may, without obtaining any consent from or paying any
compensation to the Tenant, at any time give consent to a third party
to deal with any Adjoining Property, including consent to the erection,
alteration or rebuilding of any buildings whatsoever on such Adjoining
Property, whether or not such works affect or diminish the light or air
which may now or at any time during the Term be enjoyed by the Tenant
or the Tenant's Personnel.
7.15 MISCELLANEOUS
CAR PARKING
In respect of the Allotted Spaces and the Car Park, the Parties agree
as follows:
(a) the Landlord shall at all times retain legal possession and
control of the Allotted Spaces and the Car Park and the Tenant
shall not acquire any estate or interest in them;
(b) the Landlord shall not in any way be responsible nor under any
liability in respect of:
(i) any loss of or damage to any motor car or any
property that may be placed or left on the Allotted
Spaces or elsewhere in the Car Park; or
(ii) the death or injury of any person or animal arising
out of or in connection with the parking of any motor
car on the Allotted Spaces or the use of the Allotted
Spaces or any other part of the Car Park
however such loss, damage, death or injury may be caused, unless the
same is a result of negligence on the part of the Landlord or the
Landlord's Personnel for whom the Landlord might be vicariously liable;
(c) the Landlord shall not be under any liability if unauthorised
persons use or endeavour to use the Allotted Spaces or any
other part of the Car Park, or park or place vehicles so as to
prevent ingress to and egress from the Allotted Spaces.
7.16 BREAK CLAUSE
7.16.1 If the Tenant wishes to determine this Lease on 24 March 2010 and gives
to the Landlord not less than six months' Notice of that wish on or
before 23 September 2009 and provided the Tenant shall:
(a) up to the time of such determination have paid the Rent and
the additional rents; and
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(b) on such determination give the Landlord full vacant possession
of the Premises in accordance with the Tenant's Covenants
then and in such case this Lease shall cease and determine but without
prejudice to any claim by either Party against the other in respect of
any antecedent breach of any covenant or condition contained in this
Lease.
7.16.2 On the date of any determination of this Lease in accordance with
Clause 7.16.1 the Tenant shall:
(a) hand over to the Landlord the original Lease and all other
title deeds and documents relating to the Premises; and
(b) execute such document as the Landlord shall require acting
reasonably in order to cancel any entry or title at the Land
Registry.
7.17 JURISDICTION
This Lease is governed by and shall be construed in accordance with
English law and subject to the exclusive jurisdiction of the English
courts
EXECUTED by the Parties as a Deed.
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SCHEDULE 1 - THE PREMISES/THE BUILDING
PART 1 - THE PREMISES
All those premises situated on part of the ground floor front (north west) shown
for the purpose of identification only edged red on the Floor Plan forming part
of the Building and including:
(a) the internal surfaces of all walls enclosing the said premises;
(b) all non-loadbearing walls within the said premises;
(c) all ceilings of the said premises up to the level of (but excluding)
the bottom of the joists, beams or slabs above them;
(d) all floors and floorboards of the said premises down to the level of
(but excluding) the tops of the joists, beams or slabs below them and
all carpets and floor coverings in the said premises;
(e) the internal surfaces of all window frames and the glass in all windows
of the said premises;
(f) all internal and external doors and door frames belonging to the said
premises;
(g) all additions alterations and improvements to the said premises;
(h) all fixtures and fittings from time to time in or on the said premises
except those fixed by the Tenant which are generally regarded as
tenant's or trade fixtures;
(i) all Conduits and Facilities within and exclusively serving the said
premises;
but not including any part of the structure or the exterior of the Building.
PART 2 - THE BUILDING
All that land, together with the building or buildings from time to time on it
or on any part of it including any curtilage thereof and the Car Park, known as
3 Furzeground Way Stockley Park, shown for the purpose of identification only
edged yellow on the Site Plan and registered at the Land Registry under Title
Number AGL55289.
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SCHEDULE 2 - RIGHTS AND EASEMENTS GRANTED
The following rights and easements are granted to the Tenant for the benefit of
the Premises and the Tenant's Personnel (in common with the Landlord and others
having the right), but any person exercising such rights shall cause as little
damage and disturbance as possible to any Adjoining Property, and its owners and
occupiers and shall at its own expense and as quickly as possible make good all
damage caused in the exercise of such rights.
1 The right at all times to use the Common Parts for reasonable purposes
ancillary to the reasonable use and enjoyment of the Premises for the
Permitted Use, subject to compliance with any regulations made from
time to time by the Landlord.
2 In relation to Utilities:
(a) subject always to paragraph 2(b) below, the free passage and
running of Utilities (subject to temporary interruption for
repair, alteration or replacement) to and from the Premises
through the Conduits which are now or during the Term laid in,
on, under, over or through other parts of the Building, so far
as is necessary for the reasonable use and enjoyment of the
Premises for the Permitted Use;
(b) the Landlord retains the right to change the location and
arrangements for use by the Tenant of any of the Conduits,
provided there remains available for the benefit of the
Premises access to Utilities reasonably commensurate with that
granted at the date of this Lease.
3 The right of support and protection for the benefit of the Premises as
now enjoyed from other parts of the Building.
4 The right (subject to compliance with the terms of this Lease) to use
the Allotted Spaces and the right of vehicular access to them along the
Common Parts.
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SCHEDULE 3 - EXCEPTIONS AND RESERVATIONS
The following rights and easements are excepted and reserved out of the Premises
to the Landlord and any Superior Landlord and the owners and occupiers of the
Adjoining Property and their respective Personnel and all other persons having
similar rights and easements.
1 The free and uninterrupted passage and running of Utilities through the
Conduits which are now or in the future in, on, under, over or through
the Premises.
2 The right at all reasonable times, after at least forty-eight hours'
Notice by or on behalf of the Landlord, to enter (or in an emergency to
break and enter) the Premises with materials and equipment in order to:
(a) view and examine the state and-condition of the Premises and
to take schedules or inventories of the Landlord's fixtures;
(b) inspect, cleanse, maintain, repair, connect, remove, lay,
renew, re-lay, replace, alter or execute any works to or in
connection with the Conduits or any other services;
(c) execute repairs, decorations, alterations and any other works
and to make installations to the Premises or to the Adjoining
Property or to do anything which the Landlord may or must do
under this Lease;
(d) exercise any of the rights excepted and reserved by this Lease
and for any other purpose connected with the interest of the Landlord
in the Premises or the Building, including valuing or disposing of any
interest of the Landlord, but any person exercising such rights shall
cause as little inconvenience as possible to the Premises and shall
make good without unreasonable delay any physical damage caused to the
Premises.
3 The right to:
(a) carry out any works of repair, construction, development,
improvement, alteration, cleaning or otherwise to any
Adjoining Property (including to raise the height of any
Adjoining Property or to erect new buildings of any height on
any Adjoining Property);
(b) use in any way the Adjoining Property
and for such purposes to oversail the Premises with cranes and cradles
and to erect scaffolding notwithstanding interference with the access
of light or air to the Premises or temporary interference with any
other right or easement.
4 All rights of light, air, support, protection and shelter and all other
easements and rights which now or in future belong to or are enjoyed by
the Adjoining Property over the Premises.
5 The right in the case of fire and other emergency to pass through the
Premises and to enter the Premises, with or without workmen equipment
and materials, to execute and take all necessary or desirable measures
or precautions.
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SCHEDULE 4 - DEEDS AND DOCUMENTS AFFECTING THE PREMISES
The dates of the Rentcharge:
DATE DOCUMENT PARTIES
11.09.1986 Transfer and Rentcharge Deed (1) Trust Securities Holdings Limited
(2) Stockley Park Management Limited
(3) Universities Superannuation Scheme
Limited
24.04.1987 Supplemental Transfer and Rentcharge Deed (1) Trust Securities Holdings Limited
(2) Stockley Park Management Limited
(3) Universities Superannuation Scheme
Limited
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SCHEDULE 5 - RENT REVIEW
1 DEFINITIONS
1.1 In this Schedule the following definitions apply.
1.2 ASSUMPTIONS means each of the following:
(a) that the Premises are ready and fit for immediate occupation and use
for any use permitted by this Lease and that all Utilities and other
facilities necessary for such occupation and use are connected to
and immediately available for use at the Premises;
(b) that no work has been carried out to the Premises by the Tenant, any
undertenant or their respective predecessors in title which has
diminished the rental value of the Premises other than work required
by statute;
(c) that if the Premises or the Building or the means of access to them,
or any Utilities or other facilities necessary for their occupation
and use, have been destroyed or damaged (or, in the case of
Utilities or other facilities, suspended), they have been fully
rebuilt and restored;
(d) that all the covenants and conditions contained in this Lease have
been fully complied with (but without prejudice to any rights of any
Party in respect of the same);
(e) that the Permitted Use and the Premises comply with all Enactments
(and any work to comply with and/or to prevent any potential
liability or claim under any Enactment has been:
(i) carried out; and
(ii) carried out so as to avoid as far as reasonably practicable
any decrease in usable area in the Premises); and
(f) that all licences and consents required for the Permitted Use (and
for the actual use if different) have been obtained and are
effective.
DECISION DATE means the date on which the amount of the Reviewed Rent is
agreed or determined in writing.
DISREGARDED MATTERS means each of the following:
(a) the fact that the Tenant, any undertenant or their predecessors in
title in their respective businesses has been in occupation of the
Premises;
(b) any goodwill attached to the Premises by reason of any business
conducted at the Premises;
(c) any increase in rental value of the Premises attributable to the
existence at the Relevant Review Date of any improvement to the
Premises, carried out:
(i) during the Term or prior to the commencement of the Term
pursuant to the Agreement for Lease; and
(ii) by the Tenant, or any undertenant; and
(iii) with the Landlord's Consent where required; and
(iv) not pursuant to or in anticipation of an obligation to the
Landlord;
(d) any decrease in rental value of the Premises attributable to any
temporary works, operations or other activities on any Adjoining
Property.
HYPOTHETICAL TERM means a term of 5 years beginning on the Relevant Review
Date.
27
INDEPENDENT SURVEYOR means an independent chartered surveyor of not less
than ten years' standing who is experienced in the rental valuation of
property similar to the Premises and is acquainted with the market for
such premises in the locality.
INTERIM PERIOD means a period beginning on the Relevant Review Date and
ending on the next quarter day after a Decision Date.
OPEN MARKET RENT means the yearly rent which could reasonably be expected
to become payable for the Premises after the expiry of a rent free or
concessionary rent period (or the receipt of a sum by way of contribution
or other inducement in lieu of the same) which might be negotiated in the
open market for fitting out purposes.
(a) on a new letting of the Premises as a whole in the open market on
the Relevant Review Date;
(b) by a willing landlord to a willing tenant;
(c) with vacant possession;
(d) without any fine or premium payable by either party for the grant of
it;
(e) for the Hypothetical Term and otherwise on the terms and conditions
and subject to the covenants and provisions contained in this Lease
other than as to the amount of the Rent immediately before the
Relevant Review Date;
(f) and making the Assumptions but disregarding any effect on value
attributable to the Disregarded Matters.
PRESIDENT means the President for the time being of the Royal Institution
of Chartered Surveyors or any successor organisation and includes any
person authorised by the President to make appointments on his behalf.
RENT RESTRICTIONS means the statutory restrictions for the control of rent
in force on a Review Date or on the date on which any increased rent is
ascertained under this Schedule and which limit in time or amount an
increase in the Rent.
REVIEWED RENT means the higher of:
(a) the Rent payable immediately before the Relevant Review Date (or if
payment of the Rent or part of it has been suspended, the Rent which
would otherwise have been payable); and
(b) the Open Market Rent on the Relevant Review Date.
2 RENT REVIEW
From and including each Review Date the Rent shall be the Reviewed Rent.
3 AGREEMENT OR DETERMINATION OF THE REVIEWED RENT
3.1 The Open Market Rent at any Review Date may be agreed in writing at any
time between the Landlord and the Tenant, but the Landlord and/or the
Tenant (as the case may be) may at any time not earlier than 3 months
before the Relevant Review Date:
(a) either by agreement between them, or
(b) by the Landlord or the Tenant giving Notice to the other
require the Open Market Rent to be determined by the Independent Surveyor.
3.2 Any such determination by the Independent Surveyor shall be the Open
Market Rent on the Relevant Review Date, unless the Open Market Rent has
been agreed in writing by the Landlord and the Tenant at any time prior to
such determination.
4 APPOINTMENT OF INDEPENDENT SURVEYOR
4.1 The Independent Surveyor shall be appointed by agreement between the
Landlord and the Tenant or, failing such agreement, nominated by the
President on the written application of either the Landlord or the Tenant.
28
4.2 The Independent Surveyor shall act as an arbitrator unless, prior to the
Relevant Review Date, the Landlord gives Notice to the Tenant requiring
that the Independent Surveyor shall act as an expert.
5 INDEPENDENT SURVEYOR ACTING AS EXPERT
5.1 If the Independent Surveyor acts as expert he shall invite the Landlord
and the Tenant to submit to him a valuation accompanied by a statement of
reasons with supporting evidence and to submit such representations and
cross representations in respect of the other Party's valuation, statement
of reasons and supporting evidence as they wish and shall give to each of
them written notice of the amount of the Open Market Rent as determined by
him.
5.2 The costs of any reference to the Independent Surveyor acting as expert
shall be in the award of the Independent Surveyor and failing such award
the costs shall be payable by the Landlord and the Tenant in equal shares.
6 INDEPENDENT SURVEYOR ACTING AS ARBITRATOR
If the Independent Surveyor acts as arbitrator:
(a) he shall act as an arbitrator in accordance with the Arbitration Act
1996; and
(b) within 65 Working Days of his appointment or within such extended
period as the Landlord and the Tenant may agree give to the Landlord
and the Tenant written notice of the amount of the Open Market Rent
as determined by him.
7 APPOINTMENT OF NEW INDEPENDENT SURVEYOR
If the Independent Surveyor fails to give notice of his determination
within [65 Working Days] of his appointment or dies or is unwilling to act
or becomes incapable of acting or for any reason is unable to act, then
either the Landlord or the Tenant may request the President to discharge
the Independent Surveyor and to appoint another surveyor in his place and
this procedure may be repeated as many times as necessary.
8 INTERIM PAYMENTS PENDING DETERMINATION
If the amount of the Reviewed Rent has not been agreed or determined
before the Relevant Review Date then the Tenant shall continue to pay the
Rent at the rate applicable immediately before the Relevant Review Date
and within 10 Working Days of the Decision Date the Tenant shall pay to
the Landlord as arrears of Rent the amount by which the Reviewed Rent for
the Interim Period exceeds the Rent actually paid during the Interim
Period (apportioned on a daily basis) together with interest at the base
lending rate from time to time of National Westminster Bank PLC (or of
such other UK clearing bank as the Landlord may designate from time to
time by giving Notice to the Tenant) from the Relevant Review Date to the
date of actual payment (inclusive).
9 RENT RESTRICTIONS
Whenever Rent Restrictions apply:
(a) the operation of the above provisions for review of the Rent shall
be postponed to take effect on the first date or dates upon which
such operation may occur; and
(b) the collection of any increase or increases in the Rent shall be
postponed to take effect on the first date or dates that such
increase or increases may be collected and/or retained in whole or
in part and on as many occasions as shall be required to ensure the
collection of the whole increase
and until the Rent Restrictions are relaxed the Rent shall be the maximum
sum from time to time permitted by such Rent Restrictions as may be
applicable.
10 MEMORANDUM OF REVIEWED RENT
Within 20 Working Days after the Reviewed Rent has been agreed or
determined, a memorandum shall be signed by or on behalf of the Landlord
and the Tenant and exchanged and annexed to this Lease and the counterpart
of it and the Parties shall bear their own associated costs.
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11 TIME NOT OF THE ESSENCE
For the purpose of this Schedule time shall not be of the essence.
30
SCHEDULE 6 - SERVICE CHARGE
1 DEFINITIONS
In this Schedule the following definitions apply.
ACCOUNT DATE means 31 December in each year or such other date in each
year as the Landlord may stipulate from time to time.
ACCOUNT PERIOD means the period from but excluding one Account Date up to
and including the next Account Date.
ACCOUNT STATEMENT means a statement certified by the Surveyor (and in the
absence of manifest error to be accepted by the Tenant as conclusive),
showing the Total Charge for the relevant Account Period; the Due
Proportion; the Service Charge; details of all Estimated Service Charge
received in respect of the relevant Account Period; and any balance of
Service Charge due from the Tenant or refund due to the Tenant.
ESTIMATED SERVICE CHARGE means payment on account of the Service Charge.
FACILITIES means such systems, facilities and Utilities as may from time
to time be provided for the general amenity of the Building, including, to
the extent provided from time to time, security and surveillance systems;
fire alarm and prevention equipment; sprinklers; heating; ventilation and
air conditioning plant; air cooling and air extraction; lifts; reception
facilities; communal nameplates and signs; car park equipment; public
address and other communication facilities.
SERVICES means:
(a) keeping the Retained Parts in good and substantial repair and
condition (including, at the Landlord's discretion, inspection,
testing, maintenance, servicing, refurbishment and, where beyond
economic repair, renewal);
(b) keeping any Facilities in good working order and the Common Parts
adequately cleaned and lit;
(c) decorating and furnishing the Retained Parts;
(d) operating all Facilities required by an Authority and during the
Permitted Hours such other Facilities as may from time to time be
provided;
(e) carrying out such works and taking such other action in respect of
the Retained Parts as may be appropriate in order to comply with the
lawful requirements or recommendations of an insurer or an
Authority.
SERVICE CHARGE means the Due Proportion of the Total Charge.
SERVICE COSTS means the aggregate of the following costs and expenses
incurred by the Landlord:
(a) the cost of complying with the Landlord's obligations contained in
Clause 4.2;
(b) all rates, taxes, charges, assessments and outgoings payable in
respect of all or any part of the Retained Parts or in respect of
the Building as a whole (as distinct from any one or more Lettable
Areas);
(c) the cost of electricity, gas, oil or other fuel supplies for the
provision of the Services or otherwise consumed in the Retained
Parts;
(d) the cost of employing or arranging for the employment of staff to
provide the Services, such cost to include all incidental
expenditure such as (without prejudice to the generality of the
foregoing) that relating to insurance, pension and welfare
contributions; the provision of clothing; the provision of tools and
equipment; employer's liability insurance the provision of
accommodation (and where such accommodation is provided in the
Building a notional rent for it being such figure as the Landlord is
from time to time advised by the Surveyor represents its open market
rent);
(e) the cost of providing, maintaining, inspecting and renewing such
equipment materials and supplies as are from time to time required
in order to provide the Services;
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(f) the cost of all maintenance and other contracts entered into in
relation to the provision of the Services;
(g) all contributions to roads, pipes, walls, structures or other things
common to or used in common by the Building and any Adjoining
Property;
(h) the cost to the Landlord of:
(i) complying with or contesting the requirements or proposals of
any Authority; and
(ii) carrying out such works as are required by, or as may be
necessary to prevent any potential liability under, any
Enactment
insofar as the same relate to the Building (as distinct from any
particular Lettable Area or Areas);
(i) commitment fees, interest and any other cost of borrowing money
where necessary to finance the Service Costs;
(j) the fees of managing agents retained by the Landlord in relation to
the management of the Building, the provision of the Services and
the routine collection of Rent, Service Charge and Estimated Service
Charge due from tenants and occupiers of the Building (but not the
collection of arrears of the same) (or where any such task is
carried out by the Landlord a reasonable charge for the Landlord in
relation thereto);
(k) the cost of preparing and auditing Service Charge accounts (whether
carried out by the Landlord or by the Landlord's agents or
accountants);
(l) the cost of obtaining such professional advice as may from time to
time be required in relation to the management of the Building and
the provision of Services;
(m) the cost of pedestrian control, security and the preparation and
enforcement of regulations;
(n) the cost of the insurance of plant and equipment and of the
furnishings and contents of the Retained Parts and such other
insurance relating to the management of the Building as the Landlord
may consider prudent;
(o) the cost of providing and maintaining decorative features (such as
landscaped areas, flowers and seasonal decorations);
(p) the cost of providing such further and improved Facilities as the
Landlord may require for the greater amenity of those using the
Building or the more efficient management of the Building, or as an
Authority may require;
(q) VAT (or other tax) where chargeable on any of the Service Costs to
the extent that it cannot be recovered by the Landlord;
(r) all other costs, charges, expenses and outgoings properly incurred
in or incidental to the provision of the Services; and
(s) such provision for anticipated future expenditure in relation to the
Services as may in the Landlord's opinion (acting reasonably) be
appropriate.
TOTAL CHARGE means the total of all Service Costs during an Account Period
net of any receipts from insurers, the Tenant or other occupiers of the
Building or third parties (otherwise than by way of a payment for
services) which are properly applicable towards payment of such Service
Costs.
2 THE SERVICE CHARGE
2.1 The Tenant covenants to pay to the Landlord by way of equal installments
in advance on each quarter day during the Term (the first payment or
proportionate payment to be made on the first day of the Term) an
Estimated Service Charge of such sum as the Landlord may reasonably
demand, having regard to actual and anticipated Service Costs.
2.2 As soon as practicable after an Account Date, the Landlord shall submit to
the Tenant an Account Statement for the Account Period ending on that
Account Date and:
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(a) if the Account Statement shows that a balance of Service Charge is
due from the Tenant, the Tenant shall pay such balance to the
Landlord within fourteen days of receipt of the Account Statement;
(b) if the Account Statement shows that a refund is due to the Tenant,
such refund shall during the Term be set off against future Service
Charge Payments and following the determination of the Term be set
off against any other moneys due from the Tenant to the Landlord and
the balance (if any) paid to the Tenant.
2.3 Where the date of this Lease and/or the End of the Term do not coincide
with the beginning or end respectively of an Account Period, the Service
Charge for the initial and/or final partial Account Periods shall be that
proportion of the Service Charge which relates to the period from and
including the first day of the Term or ending on the End of the Term as
the case may be, apportioned on a daily basis according to the number of
days in the whole of the relevant Account Period.
2.4 The provisions of this paragraph 2 will survive the End of the Term (but
only in respect of the period up to the End of the Term).
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SCHEDULE 7 - COVENANTS BY THE SURETY
1 INDEMNITY BY SURETY
The Tenant or the Surety shall while the Tenant remains bound by the
Tenant's Covenants comply with the Tenant's Covenants and the Surety shall
indemnify the Landlord against all claims, demands, losses, damages,
liabilities, costs, fees and expenses sustained by the Landlord by reason
of or arising out of any default by the Tenant in complying with the
Tenant's Covenants.
2 SURETY JOINTLY AND SEVERALLY LIABLE WITH TENANT
The Surety shall be jointly and severally liable with the Tenant (whether
before or after any disclaimer by a liquidator or trustee in bankruptcy of
this Lease) for the fulfilment of all the obligations of the Tenant under
this Lease and agrees that the Landlord in the enforcement of its rights
under this Lease may proceed against the Surety as if the Surety were
named as the Tenant in this Lease.
3 WAIVER BY SURETY
The Surety waives any right to require the Landlord to proceed against the
Tenant or to pursue any other remedy whatsoever which may be available to
the Landlord before proceeding against the Surety.
4 NO RELEASE OF SURETY
None of the following or any combination of them shall release, discharge
or lessen or affect the liability of the Surety under this Lease:
(a) any neglect, delay or forbearance of the Landlord in endeavouring to
obtain payment of the Rent or any additional rents or in enforcing
compliance with the Tenant's Covenants;
(b) any refusal by the Landlord to accept rent tendered by or on behalf
of the Tenant at a time when the Landlord is entitled (or would
after the service of a notice under section 146 of the Law of
Property Act 1925 be entitled) to re-enter the Premises;
(c) any extension of time given by the Landlord to the Tenant;
(d) save as provided for in the 1995 Act any variation of the terms of
this Lease (including any reviews of the Rent) or the transfer of
the Landlord's reversion or the assignment of this Lease;
(e) any surrender by the Tenant of any part of the Premises (in which
event the liability of the Surety shall continue in respect of the
part of the Premises not so surrendered after making any necessary
apportionments);
(f) any other act, omission, matter or thing whereby but for this
provision the Surety would be exonerated wholly or in part (other
than a release under seal given by the Landlord).
5 DISCLAIMER OR FORFEITURE OF LEASE
5.1 If the Tenant (being an individual) becomes bankrupt or (being a company)
enters into liquidation and the trustee in bankruptcy or liquidator
disclaims or surrenders this Lease then the Surety shall if the Landlord
gives Notice to the Surety within 65 Working Days after such disclaimer or
other event accept from and execute and deliver to the Landlord at the
cost of the Surety a counterpart of a new lease of the Premises:
(a) to take effect from the date of the disclaimer or other event;
(b) for a term beginning on the date of the disclaimer and equal in
length to the residue of the Term which would have remained had
there been no disclaimer;
(c) reserving by way of initial rent an amount equal to the Rent payable
immediately before the date of the disclaimer or other event such
initial rent to be payable from that date;
(d) imposing on the Surety the same obligations as the Tenant was
subject to immediately before the disclaimer or other event; and
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(e) otherwise containing the same terms and provisions as this Lease,
including the provisions for rent review, except that the Surety
shall not be required to procure that any other person is made a
party to the new lease as surety.
5.2 If the Landlord does not require the Surety to take a new lease, the
Surety shall nevertheless on demand pay to the Landlord a sum equal to the
rents and other sums that would have been payable under this Lease (and
for the avoidance of doubt the provisions of Schedule 5 shall apply
mutatis mutandis) but for the disclaimer or other event, from and
including the date of such disclaimer or other event for a period of 12
months or (if sooner) until the date on which a lease or underlease of the
Premises to a third party is completed.
6 SUPPLEMENTAL DOCUMENTS
The Surety shall at the request of the Landlord join in any document made
supplemental or collateral to this Lease.
7 AUTHORISED GUARANTEE AGREEMENT
The Surety shall join in as a party to any Authorised Guarantee Agreement
entered into by the Tenant in order to guarantee that the Tenant shall
duly perform and observe the obligations it undertakes within such
Authorised Guarantee Agreement and shall covenant to indemnify the
Landlord against all claims, demands, losses, damages, liabilities, costs,
fees and expenses sustained by the Landlord by reason of or arising out of
any default by the Tenant in complying with such obligations.
8 ADDRESS FOR SERVICE
The Surety shall immediately notify the Landlord in writing of any change
in the Surety's address for service and until such Notice has been given
the Surety's address for service shall be the Surety's address for service
most recently notified in writing to the Landlord.
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SCHEDULE 8 - CAR PARKING PROVISIONS
The Tenant covenants with the Landlord as follows:
1 Not to use any of the Allotted Spaces for the repair or maintenance or
cleaning of motor vehicles and not to store in or on any of them any
petrol, oil or similar inflammable substances (other than petrol and oil
in the tanks of vehicles using the same):
2 To take all necessary steps to prevent any leakage of oil, petrol, grease
or other substance from any motor car on the Allotted Spaces or on any
other part of the Car Park and to remove from the ground immediately any
such leakage as may occur.
3 Not at any time to use any of the Allotted Spaces for any purpose other
than the parking of one private motor vehicle (taxed and in a roadworthy
condition) of the Tenant or the Tenant's Personnel, and not to use any
such vehicle in such a manner as may breach any Enactment.
4 Not at any time to obstruct the Car Park, nor any entrances, internal
accessways and exit roadways from it, and not to park any motor vehicle in
such a position as to prevent the free movement or parking of motor
vehicles in the Car Park.
5 To permit the Landlord and the Landlord's Personnel to enter on the
Allotted Spaces at any time and to clean the same or to carry out any
maintenance, repairs or redecorations to them or to any other part of the
Car Park.
6 Not to use the Car Park for loading or unloading of goods or to deposit
any rubbish on the Allotted Spaces or on any other part of the Car Park
except in any rubbish bins which may be provided.
7 To ensure that all vehicles of the Tenant and the Tenant's Personnel
entering and leaving the Car Park shall do so only at the vehicular access
points (if any) constructed for that purpose.
8 Not to create unnecessary or excessive vibration or exhaust fumes in the
Car Park.
9 Not to permit petrol, oil or other lubricants to be disposed of into the
drains serving the Building or any Adjoining Property and not to permit
the filling or emptying of fuel tanks in the Allotted Spaces or other
parts of the Common Parts.
10 Not to do any act or thing whereby any access road or any road, path,
forecourt or other area over which the Tenant may have rights of access or
use may be damaged or the fair use of it by others may be obstructed,
impeded or hindered in any manner whatsoever, and in particular not to
park any motor or other vehicle in or upon such roads or other areas.
11 Forthwith to make good to the satisfaction of the Landlord all damage
caused to the Car Park by the Tenant or the Tenant's Personnel.
12 To indemnify and keep the Landlord fully indemnified against liability in
any way arising out of the use of vehicles in the Common Parts by the
Tenant or the Tenant's Personnel.
EXECUTED as a deed by 3 FURZEGROUND )
(NO. 1) LIMITED )
acting by its secretary and a director )
or by two directors )
Director /s/ (illegible)
-----------------------------------------
Director/Secretary /s/ (illegible)
-----------------------------------------
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EXECUTED as a deed by 3 FURZEGROUND )
(NO. 2) LIMITED )
acting by its secretary and a director )
or by two directors )
Director /s/ (illegible)
----------------------------------------
Director/Secretary /s/ (illegible)
----------------------------------------
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