EXHIBIT 10.45
DATED 29th December 1995
PDFM LIMITED
- and -
PRIME RESPONSE LIMITED
LEASE
- of -
Office Premises at
Goat Wharf High Street
Brentford Middlesex
Term 15 years
Commencing 29 September 1995
Rent (Pounds) 151,000
Xxxxxx Xxxxxxxx
Adelaide House
London Bridge
London EC4R 9HA
snbn/p432/249/a1
19.12.95
6 OBLIGATIONS IN SCHEDULES TO THIS LEASE
7 STAMP DUTY CERTIFICATE
8 LANDLORD AND TENANT (COVENANT) ACT 1995 DECLARATION
Schedule 1 - Description of the Premises
Part 1 - Description of the Premises
Part 2 - Rights enjoyed with demise
Part 3 - Exceptions and reservations
Part 4 - Encumbrances
Schedule 2 - Rent Reviews
1. The review dates
2. Upward only rent reviews
3. The market rent
4. Matters to be disregarded
5. Procedure for determination of market rent
6. Time limits
7. Rental adjustments
8. Reviewed rent reserved in phases
9. Memorandum of rent review
Schedule 3 - Insurance Provision
1. Insured Risks
2. Tenants liability for insurance premiums
3. Tenant's obligations in relation to insurance cover
4. Xxxxxxxx's obligation to insure and reinstate
5. Landlord's obligations in relation to insurance
6. Suspension of Rent
7. Options to determine
8. Retention of insurance proceeds
Schedule 4 - Form of guarantee on assignment
1. Guarantee
2. No waiver or release of liability
3. Guarantors to accept new lease upon disclaimer
4. Subordination of rights of the Guarantors
DEED
LEASE
DATE: 29/th/ December 1995
PARTIES:
(1) PDFM LIMITED whose registered office is at Triton Court 00 Xxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX acting in the capacity of General Partner of PDFM Second
Property Partnership (a limited partnership registered under the Limited
Partnership Act 1907 of the same address) ("the Landlord") and
(2) PRIME RESPONSE LIMITED whose registered office is at Albany House 00 Xxxx
Xxxxxx Xxxxxxxxx Xxxxxxxxx XX0 XXX ("the Tenant")
OPERATIVE PROVISIONS:
1 INTERPRETATION
1.1 Definitions
In this Lease if the context so allows:
Conducting Media
means any of the drains, sewers, conduits, flues, gutters, gullies,
channels, ducts, shafts, watercourses, pipes, cables, wires mains and other
service media
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Encumbrances
means the restrictions, stipulations, covenants, rights, reservations,
provisions and other matters contained imposed by or referred to in the
documents brief particulars of which are set out in Schedule 1 Part 4
Insured Risks
has the meaning given to it in Schedule 3
Interest
means interest at the rate of 3% over the base rate of National
Westminster Bank Plc for the time being and from time to time (as well
after as before judgment), or such other comparable rate as the Landlord
may reasonably designate if the base rate ceases to be published
Landlord
includes all persons from time to time entitled to the immediate
reversion to this Lease
Lease
includes any documents supplemental to this Lease
Outgoings
means in relation to the Premises all non-domestic rates, water rates,
water charges and all existing and future rates, taxes, charges,
assessments, impositions and outgoings whatsoever (whether parliamentary
municipal parochial or otherwise) which are now or may at any time be
payable charged or assessed on property or the owner or occupier of
property, but "taxes" in
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this context does not include value added tax, nor any taxes imposed on
the Landlord in respect of the yearly rent reserved by this Lease or in
respect of a disposal of the interest in immediate or mediate reversion
to this Lease
Premises
means the property described in Schedule 1 Part 1
Tenant
includes the Tenant's successors in title and assigns in whom this Lease
may for the time being be vested
Term
means the term of years granted by this Lease
Unsecured Underletting
means an underletting of the whole or part of the Premises in relation to
which the underlessor and the underlessee have agreed to exclude the
provisions of Sections 24 to 28 of the Landlord and Tenant Act 1954 and
their agreement to do so has been duly authorized beforehand by the Court
1.2 Interpretation of restrictions and liability
1.2.1 Where the Tenant is placed under a restriction in this Lease, the
restriction includes the obligation on the Tenant not to permit or allow
the infringement of the restriction by any person
1.2.2 References to liability include, where the context allows, claims demands
proceedings damages losses costs and expenses
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1.3 Clauses and clause headings
1.3.1 The clause and paragraph headings in this Lease are for ease of
reference only and are not to be taken into account in the
construction or interpretation of any covenant condition or proviso to
which they refer
1.3.2 Unless the context otherwise requires, references:
1.3.2.1 to numbered clauses and Schedules are references to the relevant
clause in or Schedule to this Lease: and
1.3.2.2 in any Schedule to a numbered paragraph are references to the relevant
paragraph in that Schedule
1.4 Singular and plural meanings
Words in this Lease importing the singular meaning, where the context
so allows, include the plural meaning and vice versa
1.5 Statutes and statutory instruments
References in this Lease to any statutes or statutory instruments
include and refer to any statute or statutory instrument amending
consolidating or replacing them respectively from time to time in
force, and references to a statute include statutory instruments and
regulations made pursuant to them
1.6 Gender
Words in this Lease importing any one gender include both other
genders and may be used interchangeably, and words denoting natural
persons where the context so allows include corporations and vice
versa
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1.7 Joint and several obligations
At any time that the party of the second part to this Lease is two or
more persons the expression "the Tenant" includes the plural number and
obligations in this Lease expressed or implied to be made with the Tenant
or by the Tenant are to be treated as made with or by such individuals
jointly and severally
2 THE LETTING TERMS
In consideration of the rent reserved by and the covenants in this Lease:
2.1 the Landlord LETS to the Tenant:
2.1.1 ALL the Premises;
2.1.2 TOGETHER WITH the rights set out in Schedule 1 Part 2; and
2.1.3 EXCEPT AND RESERVED to the Landlord the rights set out in Schedule 1 Part
3;
2.2 for the TERM of fifteen years commencing on 29 September 1995
subject to the Encumbrances; and
2.3 the Tenant PAYING during the Term:
2.3.1 from the 29/th/ day of December 1995 to the 28/th/ day of January 1997
the yearly rent of a peppercorn (if demanded);
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2.3.2 for the remainder of the Term the yearly rent of (Pounds)151,000 subject
to revision under Schedule 2
all such payments to be made by equal quarterly payments in advance on
the usual quarter days in every year the first (or a proportionate part)
of such payments in respect of the period commencing on the 29/th/ day of
January 1997 and ending on the following quarter day to be made on the 25
December 1996;
2.3.3 as additional rent the monies payable by the Tenant under Schedule 3
commencing on the date hereof; and
2.3.4 as additional rent any value added tax chargeable on the rent and
additional rent reserved in clauses 2.3.1, 2.3.2 and 2.3.3
3 TENANT'S COVENANTS
THE TENANT COVENANTS with the Landlord as follows:
3.1 Rent
3.1.1 To pay the yearly rent reserved by this Lease, free from any deductions
and rights of set-off, at the times and in the manner required in clause
2.3.2 and by means of a standing order to the Tenant's bankers
3.1.2 To pay the additional rents reserved by this Lease at the times and in
the manner specified in relation to each of them
3.2 Interest
3.2.1 To pay Interest on so much of the rents, reviewed rents, and other monies
payable under this Lease as remain unpaid seven days after they have
become due from the date that they became due until the payment is made
to the Landlord
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3.2.2 To pay Interest under clause 3.2.1 for any period during which the
Landlord properly refuses to accept the tender of payment because of
an unremedied breach of covenant of the Tenant
3.3 Outgoings and Contributions
3.3.1 To pay Outgoings
3.3.2 To pay for all gas and electricity consumed on the Premises, all
charges for meters, and all standing charges
3.3.3 To pay to the Landlord on demand a fair and proper proportion (to be
conclusively determined by the Landlord or the Landlord's surveyor) of
the expense of cleaning, lighting, repairing, renewing, decorating,
maintaining and rebuilding any party walls, lifts, fences, gutters,
drains, roadways, pavements, entrance ways, stairs and passages,
access ways and service areas which are or may be used or enjoyed by
an occupier of the Premises in common with any other person or persons
3.4 Repair
Well and substantially to repair maintain and clean the Premises and
to keep the Premises in good and substantial repair maintained and in
clean condition (except in respect of damage by Insured Risks as
allowed in Schedule 3)
3.5 Decorations
3.5.1 To decorate the inside of the Premises in the year 2000 and from then
in every subsequent fifth year of the Term and in the last three
months of the Term (howsoever determined) with two coats of good
quality paint or good quality polish, and with paper for those parts
normally papered, or other suitable and appropriate materials of good
quality, in a workmanlike manner (such
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decorations in the last three months of the Term to be executed in
such colours patterns and materials as the Landlord may reasonably
require)
3.5.2 To decorate the exterior of the Premises in the year 1998 and from
then in every subsequent third year of the Term and also in the last
three months of the Term (howsoever determined) with three coats of
good quality paint or good quality polish or other suitable material
of good quality in a proper and workmanlike manner
3.5.3 Not without the consent of the Landlord to alter cover up or change
any part of the architectural decorations or the external colour of
the Premises
3.6 Landlord's right of inspection and right of repair
3.6.1 To permit the Landlord and its employees or agents at all reasonable
times upon reasonable prior notice to enter into inspect and view the
Premises and examine their condition and also to take a schedule of
fixtures in the Premises
3.6.2 If any breach of covenant, defects, disrepair, removal of fixtures or
unauthorised alterations or additions are found on inspection for
which the Tenant is liable, then, on notice from the Landlord, to
execute to the reasonable satisfaction of the Landlord or its Surveyor
all repairs works replacements or removals required within two months
(or sooner if necessary) after the receipt of the notice
3.6.3 If the Tenant fails to comply with a notice under clause 3.6.2, the
Landlord may itself or by its workpeople or agents enter the Premises
and execute the repairs works replacements or removals
3.6.4 To pay to the Landlord on demand all reasonable expenses so incurred
under clause 3.6.3
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3.7 Yield up repair at the end of the Term
At the termination of this Lease or at such later time as the Landlord
recovers possession of the Premises from the Tenant:
3.7.1 quietly to yield up the Premises (with all additions and improvements
to the Premises and all fixtures in the Premises, other than tenant's
fixtures which the Tenant may be entitled to remove) repaired
maintained cleaned decorated and kept in accordance with the Tenant's
covenants in this Lease (except in respect of damage by Insured Risks
as allowed in Schedule 3)
3.7.2 if so requested by the Landlord, to remove from the Premises all the
Tenant's belongings - that is to say trade fixtures and fittings and
all notices notice boards and signs bearing the name of or otherwise
relating to the Tenant (including in this context any persons deriving
title to the Premises under the Tenant) or its business; and
3.7.3 to make good to the reasonable satisfaction of the Landlord all damage
to the Premises resulting from the removal of the Tenant's belongings
from the Premises
3.8 Landlord's right of entry for repairs, etc.
To permit the Landlord or other owners tenants or occupiers of any
adjoining or neighbouring property and their respective agents workmen
and employees to enter the Premises at reasonable times, after giving
to the Tenant reasonable written notice (except in an emergency):
3.8.1 to alter maintain or repair the adjoining premises or property of the
Landlord or person so entering; or
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3.8.2 to construct alter maintain repair or fix anything or additional thing
serving such property and running through or on the Premises; or
3.8.3 to comply with an obligation to any third party having legal rights
over the Premises; or
3.8.4 in exercise of a right or to comply with an obligation of repair
maintenance or renewal under this Lease; or
3.8.5 in connection with the development of any adjoining or neighbouring
land or premises including the right to build on or into or in
prolongation of any boundary wall of the Premises -
where the same cannot be reasonably effected from any adjoining or
neighbouring premises subject to the Landlord (or other person so
entering) exercising the right in a reasonable manner and making good
any damage caused to the Premises without unreasonable delay
3.9 Alterations
3.9.1 Not to make any alterations or additions to or affecting the structure
or exterior of the Premises, or the appearance of the Premises as seen
from the exterior
3.9.2 Not without the consent of the Landlord (such consent not to be
unreasonably withheld) to make any other alterations or additions to
the Premises
3.9.3 Not to install or erect any exterior lighting shade canopy or awning
or other structure in front of or elsewhere outside the Premises
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3.9.4 On the termination of this Lease, to the extent required by the
Landlord, to reinstate the Premises to the condition in which they
were in at the grant of this Lease, such reinstatement to be carried
out under the supervision and to the reasonable satisfaction of the
Landlord or the Landlord's surveyor
3.10 Alienation
3.10.1 Not to assign or charge part only of the Premises
3.10.2 Not to assign or charge the whole nor underlet the whole or any part
of the Premises without the consent of the Landlord (such consent not
to be unreasonably withheld)
3.10.3 Not otherwise than by assignment or underletting permitted under this
clause 3.10 to:
3.10.3.1 part with or share possession or occupation of the whole or a part of
the Premises; or
3.10.3.2 grant to third parties any rights over the Premises
3.10.4 On an assignment, to obtain (if the Landlord reasonably so requires)
guarantors reasonably acceptable to the Landlord for any assignee and
to obtain a direct covenant by deed by the assignee with the Landlord
to observe and perform the covenants of the Tenant and the conditions
in this Lease throughout the period that the assignee holds the Lease
in such form as the Landlord may reasonably require and a direct
covenant by deed by such guarantors in the terms set out in Schedule 4
3.10.5 on the grant of an underlease, to obtain covenants by deed from the
underlessee direct with the Landlord in such form as the Landlord may
reasonably require that the underlessee will:
3.10.5.1 not assign or charge part only of the premises underlet;
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3.10.5.2 not part with or share possession or occupation of the whole or any
part of the premises underlet nor grant to third parties rights over
them otherwise than by a permitted assignment or sub-underletting;
3.10.5.3 not assign charge or sub-underlet the whole of the premises sub-
underlet or sub-underlet the whole or any part of the premises
underlet without obtaining the previous consent of the Landlord under
this Lease (such consent not to be unreasonably withheld);
3.10.5.4 provide for the inclusion in any sub-underleases granted out of the
underlease (whether immediate or mediate) of covenants to the same
effect as those contained in these clauses 3.10.5 and clause 3.10.6
3.10.6 On the grant of any underlease:
3.10.6.1 to include provisions for the revision of the rent reserved by the
underlease in an upward only direction to correspond in time and
effect with the provisions for the revision of rent in this Lease;
3.10.6.2 not to reserve or take a premium or fine;
3.10.6.3 to reserve a rent which is at least equal to the market rent as at the
time of the grant of the underlease (assessed in accordance with the
principles in Schedule 2) or the proportionate part of the market rent
of the Premises where only part of the Premises is underlet;
3.10.6.4 to include such covenants of the underlessee as are not inconsistent
with or impair the due performance and observance of the covenants of
the Tenant in this Lease
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3.10.7 Not so to underlet the Premises as to sub-divide them into more than
three units of occupation nor so that any such unit of occupation
created or any left remaining comprises less than one complete floor
(disregarding the common parts on any floor)
3.10.8 Not to underlet the whole or any part of the Premises otherwise than
by way of Unsecured Underletting
3.10.9 The preceding provisions of this clause 3.10 do not apply to any
parting with possession or occupation or the sharing of occupation or
sub-division of the Premises to or with any member of a group of
companies of which the Tenant is itself a member if:
3.10.9.1 the interest in the Premises so created is and remains no more than a
tenancy-at-will; and
3.10.9.2 the possession occupation or sub-division are immediately determined
if the Tenant and the relevant member cease for any reason whatsoever
to be members of the same group of companies;
and for this purpose two companies are members of a group if, and only
if, one is a subsidiary of the other or both are subsidiaries of a
third company, subsidiary having the meaning given to it by Section
736 of the Companies Act 1985
3.11 Registration of dispositions of this Lease
To produce to and leave with the Solicitors of the Landlord the
document effecting the disposition (and in each case a certified copy
for retention by the Landlord) within one month after any disposition
of this Lease or the Premises (a disposition being an assignment,
charge, transfer, underlease, assignment or surrender of any
underlease, or on any transmission by death or otherwise
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documentary evidence of devolution affecting the Premises), and on
each occasion to pay to the Solicitors such fee as they may reasonably
require for the registration
3.12 Enforcement of underleases
3.12.1 Not without the consent of the Landlord (such consent not to be
unreasonably withheld) to vary the terms, or waive the benefit, of any
covenant of the underlessee or condition in an underlease of the
Premises
3.12.2 Diligently to enforce the covenants of the underlessee and the
conditions in an underlease of the Premises and (if reasonably
required by the Landlord) to exercise by way of enforcement the powers
of re-entry in the underlease
3.12.3 Not without the consent of the Landlord to accept any sum or payment
in kind by way of commutation of the rent payable by an underlessee of
the Premises
3.12.4 Not to accept the payment of rent from an underlessee of the Premises
otherwise than by regular quarterly (or more frequent) payments in
advance
3.12.5 Duly and punctually to exercise all rights to revise the rent reserved
by an underlease of the Premises, and not to agree with an underlessee
a revised rent without the approval of the Landlord (such approval not
to be unreasonably withheld)
3.13 User
3.13.1 Not to use the Premises otherwise than as high class offices and for
purposes ancillary to that use
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3.13.2 Nothing in this Lease implies or is to be treated as a warranty to the
effect that the use of the Premises for those purposes is in
compliance with all town planning laws and regulations now or from
time to time in force
3.14 Restrictions affecting use of the Premises
3.14.1 Not to erect nor install in the Premises any engine furnace plant or
machinery which causes noise fumes or vibration which can be heard
smelled or felt outside the Premises
3.14.2 Not to store in the Premises any petrol or other specially inflammable
explosive or combustible substance
3.14.3 Not to use the Premises for any noxious noisy or offensive trade or
business nor for any illegal or immoral act or purpose
3.14.4 Not to hold any sales by auction on the Premises
3.14.5 Not to hold in or on the Premises any exhibition public meeting or
public entertainment
3.14.6 Not to permit any vocal or instrumental music in the Premises so that
it can be heard outside the Premises
3.14.7 Not to permit livestock of any kind to be kept on the Premises
3.14.8 Not to do anything in the Premises which may be or grow to be a
nuisance or damage to the Landlord or to the owners tenants and
occupiers of adjoining and neighbouring properties
3.14.9 Not to load or use the floors walls ceilings or structure of the
Premises so as to cause strain damage or interference with the
structural parts, loadbearing framework, roof, foundations, joists and
external walls of the Premises
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3.14.10 Not to overload the lifts electrical installation or Conducting Media
in the Premises
3.14.11 Not to do or omit to do anything which may interfere with or which
imposes an additional loading on any ventilation heating air
conditioning or other plant or machinery serving the Premises
3.14.12 Not to use the Premises as a betting shop or betting office
3.14.13 Not to use the Premises for the sale of alcoholic liquor for
consumption either on or off the Premises
3.14.14 Not to allow any person to sleep in the Premises nor to use the
Premises for residential purposes
3.14.15 Not to accumulate trade empties on the Premises
3.14.16 Not to place leave or install any articles merchandise goods or other
things in front of or elsewhere outside the Premises
3.14.17 Not to permit the drains to be obstructed by oil grease or other
deleterious matter, but to keep thoroughly cleaned the Premises and
the drains serving the Premises as often as may be necessary
3.14.18 Not to use any portion of any access road leading to the Premises for
the parking of vehicles
3.15 Advertisements and signs
3.15.1 Not to place or display on the exterior of the Premises or on the
windows or inside the Premises so as to be visible from the exterior
of the Premises any name writing notice sign illuminated
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sign display of lights placard poster sticker or advertisement other
than:
3.15.1.1 a suitable sign of a size and kind first approved by the Landlord
(such approval not to be unreasonably withheld) or the Landlord's
surveyor showing the Tenant's name and trade; and
3.15.1.2 such other notices as the Landlord may in its reasonable discretion
approve
3.15.2 If any name writing notice sign placard poster sticker or
advertisement is placed or displayed in breach of these provisions, to
permit the Landlord to enter the Premises and remove such name writing
notice sign placard poster sticker or advertisement and to pay to the
Landlord on demand the expense of so doing
3.16 Compliance with statutes, etc
3.16.1 To comply in all respects with the provisions of all statutes for the
time being in force and requirements of any competent authority
relating to the Premises or anything done in or on them by the Tenant,
and to keep the Landlord indemnified against liability in consequence
of the Tenant's failure to comply with them
3.16.2 In particular but without affecting the general operation of clause
3.16.1:
3.16.2.1 to execute all works and do all things on or in respect of the
Premises which are required under the Offices Shops and Railway
Premises Act 1963;
3.16.2.2 to comply with all requirements under any present or future statute
order by-law or regulation as to the use or occupation of or otherwise
concerning the Premises;
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3.16.2.3 to execute with all due diligence (commencing work within two months
or sooner if necessary and then proceeding continuously) all works to
the Premises for which the Tenant is liable under this clause 3.16 and
of which the Landlord has given notice to the Tenant;
and, if the Tenant does not comply with clause 3.16.2.3, to permit the
Landlord to enter the Premises to carry out such works, and to
indemnify the Landlord on demand for the expenses of so doing
(including surveyors' and other professional advisers' fees)
3.17 Planning permissions
3.17.1 Not without the consent of the Landlord (such consent not to be
unreasonably withheld) to make any application under the Town and
Country Planning Acts, as defined in the Town and Country Planning Act
1990, to any local planning authority for permission to develop,
including change of use of, the Premises
3.17.2 To indemnify the Landlord against any development charges other
charges and expenses payable in respect of such applications made by
the Tenant and to reimburse to the Landlord the reasonable costs it
may properly incur in connection with such consent
3.17.3 To keep the Landlord indemnified against any expense incurred in
consequence of the use of the Premises reverting to that existing
before the application was made
3.17.4 Forthwith to give to the Landlord full particulars in writing of the
grant of planning permission
3.17.5 Not to implement any planning permission if the Landlord makes
reasonable objection to any of the conditions subject to which it has
been granted
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3.18 Compliance with town planning and environmental requirements
3.18.1 To perform and observe the requirements of statutes and regulations
relating to town and country planning and environmental protection
applying to the Premises, and to obtain any development or other
consent permit or licence by reason of the development or manner of
use of or on the Premises by the Tenant
3.18.2 To keep the Landlord indemnified against liability by reason of the
Tenant's failure to obtain any requisite development or other consent
permit or licence or in complying with the requirements of statutes
and regulations
3.18.3 To give full particulars to the Landlord of any notice, or proposal
for a notice, or order or proposal for an order, made given or issued
to the Tenant under any statute or regulation relating to town and
country planning, environmental protection or otherwise within seven
days after the receipt of any such by the Tenant
3.18.4 Forthwith to take all reasonable and necessary steps to comply with
any such notice or order
3.18.5 At the request and cost of the Landlord, to make or join with the
Landlord in making such objections or representations against or in
respect of any proposal for such a notice or order as the Landlord may
consider expedient
3.19 Claims made by third parties
3.19.1 To keep the Landlord indemnified against liability in respect of any
accident loss or damage to person or property in the Premises
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3.19.2 To keep the Landlord indemnified against liability of the Landlord to
third parties by reason of breach by the Tenant of its obligations in
this Lease
3.20 Expenses of the Landlord
To pay to the Landlord on demand all reasonable expenses (including
solicitors' costs bailiffs' fees and surveyors' and architects' fees)
incurred by the Landlord:
3.20.1 incidental to or in proper contemplation of the preparation and
service of a schedule of dilapidations during or within 3 months after
the termination of this Lease and/or a notice under Sections 146 and
147 of the Law of Property Act 1925, even if forfeiture is avoided
otherwise than by relief granted by the Court;
3.20.2 in the recovery or attempted recovery of arrears of rent or additional
rent due from the Tenant; and
3.20.3 in connection with every application for any consent or approval made
under this Lease whether or not consent or approval is given (unless
such consent is unlawfully withheld)
3.21 Obstruction of windows or lights and easements
3.21.1 Not to stop up or obstruct any windows of the Premises or any other
buildings belonging to the Landlord
3.21.2 Not to permit any easement or similar right to be made or acquired
into against or on the Premises
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3.21.3 Where any such easement or right is or is attempted to be acquired,
immediately to give notice of the circumstances to the Landlord, and
at the request and cost of the Landlord to adopt such course as it may
reasonably require for preventing the acquisition of the easement or
right to such easement
3.22 Cleaning windows
To keep clean the glass in the windows of the Premises
3.23 Value added tax
To pay value added tax on taxable supplies of goods and services made
by the Landlord in connection with this Lease, for which the
consideration is to be treated as exclusive of value added tax
chargeable on the payment
3.23.1 Where the Landlord is entitled under this Lease to recover from the
Tenant the costs of goods and services supplied to the Landlord, but
in respect of which the Landlord makes no taxable supply to the
Tenant, to indemnify the Landlord against so much of the input tax on
the cost for which the Landlord is not entitled to credit allowance
under Section 26 of the Value Added Tax Act 1994
3.24 Notices "to let" and "for sale"
3.24.1 To allow the Landlord or its agents to enter the Premises at any time:
3.24.1.1 within six months next before the termination of this Lease to fix on
the Premises a notice board for reletting the Premises;
3.24.1.2 to fix on some part of the Premises a notice board for the sale of the
interest of the Landlord
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3.24.2 Not to remove or obscure any such notice board; and
3.24.3 To permit all persons authorized by the Landlord or its agents to view
the Premises at reasonable hours without interruption in connection
with any such letting or sale
4 PROVISOS
THE PARTIES AGREE to the following provisos:
4.1 Proviso for Re-Entry
4.1.1 The Landlord may terminate this Lease by re-entering the Premises (or
a part of them) itself or by an authorized agent if:
4.1.1.1 any rent remains unpaid twenty one days after becoming due for payment
(whether or not formally demanded); or
4.1.1.2 the Tenant fails to perform or observe any of its covenants or the
conditions in this Lease or allows any distress or execution to be
levied on its goods; or
4.1.1.3 an event of insolvency occurs in relation to the Tenant or one of the
Tenants or any guarantor of the Tenant or one of the Tenants
4.1.2 Re-entry in exercise of the rights in clause 4.1.1 does not affect any
other right or remedy of the Landlord for breach of covenant or
condition by the Tenant occurring before the termination of this Lease
4.1.3 The expression an event of insolvency in clause 4.1.1 includes:
4.1.3.1 (in relation to a company or other corporation which is the Tenant or
one of the Tenants or a guarantor) inability of the company to pay its
debts, entry into liquidation either
22
compulsory or voluntary (except for the purpose of amalgamation or
reconstruction), the passing of a resolution for a creditors winding
up, the making of a proposal to the company and its creditors for a
composition in satisfaction of its debts or a scheme of arrangement of
its affairs, the application to the court for an administration order,
and the appointment of a receiver or administrative receiver; and
4.1.3.2 (in relation to an individual who is the Tenant or a guarantor)
inability to pay or having no reasonable prospect of being able to pay
his debts, the presentation of a bankruptcy petition, (unless
vexatiously presented) the making of a proposal to his creditors for a
composition in satisfaction of his debts or a scheme of an arrangement
of his affairs, the application to the court for an interim order, and
the appointment of a receiver or interim receiver;
and in relation to the various events of insolvency they are, wherever
appropriate, to be interpreted in accordance and conjunction with the
relevant provisions of the Insolvency Act 1986
4.2 Power for Landlord to deal with adjoining property
The Landlord may deal as it thinks fit with other property adjoining
or nearby belonging to the Landlord, and may erect or permit to be
erected on such property any buildings irrespective of whether they
affect or diminish the light or air which may now or at any time be
enjoyed by the Tenant in respect of the Premises but not so as to
materially interfere with the Tenant's use of the Premises or the
business carried on thereat
4.3 Accidents
The Landlord shall not be responsible to the Tenant or the
23
Tenant's licensees nor to any other person for any:
4.3.1 accident happening or injury suffered in the Premises; or
4.3.2 damage to or loss of any goods or property sustained in the building
on the Premises
4.4 Removal of property after determination of term
4.4.1 If after the Tenant has vacated the Premises following the termination
of this Lease any property of the Tenant remains in the Premises, and
the Tenant fails to remove it within fourteen days after being
requested in writing by the Landlord to do so the Landlord may as the
agent of the Tenant sell such property and hold the proceeds of sale,
after deducting the costs and expenses of removal storage and sale
reasonably and properly incurred by it, to the order of the Tenant
4.4.2 The Tenant will indemnify the Landlord against any liability incurred
by it to any third party whose property has been sold by the Landlord
in the bona fide mistaken belief (which is to be presumed unless the
contrary be proved) that it belonged to the Tenant and was liable to
be dealt with as such under this clause 4.4
4.5 Notices consents and approvals
4.5.1 Any notice served under or in connection with this Lease is to be in
writing and be treated as properly served if compliance is made with
either the provisions of Section 196 of the Law of Property Act 1925
(as amended by the Recorded Delivery Service Act 1962) or Section 23
of the Landlord and Tenant Act 1927
24
4.5.2 Any consent or approval under this Lease is required to be obtained
before the act or event to which it applies is carried out or done and
is to be treated as effective only if the consent or approval is given
in writing
4.6 Limitation on Original Tenant's Liability
Notwithstanding anything to the contrary contained in this Lease Prime
Response Limited ("Prime Response") shall only be liable for the
Tenant's covenants and obligations herein contained for such period as
the Lease remains vested in Prime Response subject to the condition
that immediately prior to transferring its interest in this Lease
Prime Response enters into a guarantee of the Tenant's covenants and
obligations contained herein in the form of guarantee contained in
Schedule 4 of this Lease for such period only as the Lease remains
vested in the assignee of Prime Response ("the Condition") and in the
event that Prime Response fails to comply with the Condition it shall
remain liable under the tenant's covenants and obligations herein
contained until such time as it has complied with all elements the
Condition save as to timing
5 LANDLORD'S COVENANTS
THE LANDLORD COVENANTS with the Tenant as follows:
Quiet enjoyment
That the Tenant, paying the rents reserved and performing the Tenant's
covenants in this Lease, may lawfully and peaceably enjoy the Premises
throughout the Term without interruption by the Landlord or by any
person lawfully claiming through under or in trust for the Landlord
25
6 OBLIGATIONS IN SCHEDULES TO THIS LEASE
The Landlord and the Tenant mutually covenant to observe and perform
their respective obligations and the conditions in the Schedules
7 STAMP DUTY CERTIFICATE
It is certified that there is no agreement to which this Lease gives
effect
8 LANDLORD AND TENANT (COVENANTS) ACT 1995 DECLARATION
This Lease does not constitute a new tenancy for the purposes of
Section 1 of the Landlord and Tenant (Covenants) Act 1995
DELIVERED as a deed on the date at the head of this Lease
26
SCHEDULE 1
PART 1
Description of the Premises
All that piece or parcel of land situate at 0 Xxxx Xxxxx Xxxx Xxxxxx Brentford
in the London Borough of Hounslow together with the office building erected
thereon or on some part thereof being the whole of the property comprised in HM
Land Registry title number AGL5973 and all which said premises are for the
purposes of identification only shown edged red on the plan annexed hereto but
excluding therefrom (to the extent that it forms part of Title Number AGL5973)
the retaining wall running between the points marked A and B on the said plan.
PART 2
Rights Enjoyed with the Premises
The rights listed or referred to in the Property Register to Title Number
AGL5973
PART 3
Exceptions and Reservations
1. All rights of entry upon the Premises referred to in clause 3
2. The exceptions and reservations listed or referred to in the Property
Register to title number AGL5973 and in particular (but without prejudice
to the generality of the foregoing) those listed in a Transfer dated 14th
October 1988 made between (1) Oxford & Cambridge Developments Limited and
(2) Provident Mutual Life Assurance Association and a further Transfer
dated 24 June 1994 made between Provident Mutual Life Assurance
Association and (2) PDFM Limited
27
PART 4
Encumbrances
The matters contained referred or mentioned in the Property Register and Entry
number 1 of the Charges Register to title number AGL5973
[ROAD MAP APPEARS HERE]
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SCHEDULE 2
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Rent Reviews
1 The review dates
The yearly rent payable under this Lease is to be reviewed on the
29/th/ September 2000, 29/th/ September 2005 (referred to in this
Schedule as the review dates and the relevant review date shall be
construed accordingly) and with effect on and from each review date
the reviewed rent (as agreed or determined in accordance with this
Schedule) is to become payable as the yearly rent reserved by this
Lease
2 Upward only rent reviews
The reviewed rent is to be the greater of:
2.1 the yearly rent reserved under this Lease immediately preceding the
relevant review date; and
2.2 the market rent of the Premises at the relevant review date
3 The market rent
For the purposes of this Lease, the expression "market rent" means the
yearly rent at which the Premises might reasonably be expected to be
let in the open market by a willing landlord to a willing tenant:
3.1 with vacant possession;
3.2 for a term of ten years from the relevant review date having a rent
review, in the same terms as this Lease, at the expiry of each period
of five years throughout the term;
29
3.3 without the payment of a premium by the willing tenant;
3.4 on the basis that the willing tenant would receive as a term of the
letting such a rent free or concessionary rental period, or other
inducement, as the willing landlord would negotiate with the willing
tenant, in respect of the period that such willing tenant would
require in which to carry out its fitting out works and the rate of
the market rent payable by the Tenant from the review date would be
such as the willing tenant would pay at the expiry of the rent free or
concessionary rent period, or following the receipt of the inducement;
and
3.5 subject to the provisions of this Lease, other than the length of the
term and the amount of rent, but including these provisions for rent
review;
but on the assumption, if not the fact, that at the relevant review
date:
3.6 the Premises are fit for immediate occupation and use (but this
assumption does not affect the operation of paragraph 4.3);
3.7 in case the Premises have been destroyed or damaged they have been
fully reinstated;
3.8 the Premises are in a state of full repair and the covenants of the
Tenant and the Landlord have been fully observed and performed;
3.9 there is not in operation any statute order or instrument regulation
or direction which has the effect of regulating or restricting the
amount of rent of the Premises which might otherwise be payable; and
30
3.10 the Premises may be lawfully used throughout the Term as offices and
that no capital is required to be expended upon the Premises to enable
them to be so used
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4 Matters to be disregarded
In agreeing or determining the market rent the effect upon it of the
following matters are to be disregarded:-
4.1 the occupation of the Premises by the Tenant
4.2 any goodwill attached to the Premises by reason of the carrying on at
the Premises of the business of the Tenant;
4.3 any improvements to the Premises made by the Tenant with the consent
of the Landlord other than those:
4.3.1 made in pursuance of an obligation to the Landlord;
4.3.2 for which the Landlord has paid;
4.4 any works carried out by the Tenant which have diminished the market
rent; and
4.5 (at the option of the Landlord) the level of rent in any underletting
of the Premises or part thereof
and in this paragraph 4 reference to "the Tenant" include
predecessors-in-title to the Tenant, and sub-tenants of the Tenant or
of the predecessors-in-title of the Tenant and any other lawful
occupiers
5 Procedure for determination of market rent
5.1 The Landlord and the Tenant are to endeavour to agree the market rent
at any time not being earlier than twelve months before the relevant
review date, but if they have not agreed the market rent three months
before the relevant review date the amount of the market rent is to be
determined by reference to the determination of an independent expert
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5.2 The expert shall be nominated by the Landlord and the Tenant jointly,
but, if they cannot or do not do so, then he shall be nominated by the
President for the time being of the Royal Institution of Chartered
Surveyors on the application either of the Landlord or of the Tenant
at any time after the date being three months before the relevant
review date
5.3 The expert shall act as an expert not as an arbitrator and shall be
required to:
5.3.1 give notice to the Landlord and the Tenant allowing each of them an
opportunity to submit to him within such reasonable time as he may
stipulate a proposal for the market rent accompanied (if either of
them so wish) by a statement of reasons, and a professional rental
valuation or report; and
5.3.2 permit each of the Landlord and the Tenant to make submissions in
respect of the other's reasons valuation and report;
but the expert shall not be bound by any such proposal or submission
and may make his determination as he thinks fit
5.4 The expert nominated is to be a chartered surveyor having not less
than 10 years' experience of leasehold valuation of property being put
to the same or similar use as the Premises and of property in the same
region in which the Premises are situated
5.5 If the expert refuses to act, becomes incapable of acting or dies, the
Landlord or the Tenant may require the appointment of another expert
as provided in paragraph 5.1
5.6 The fees and expenses of the expert, including the cost of his
nomination, are to be borne in such manner and proportions as the
expert may direct, but in the absence of any such direction, they are
to be borne by the Landlord and the Tenant in equal shares
33
5.7 The determination of the expert is to be final and binding on the
parties except on a matter of law
6 Time limits
Time is not of the essence in agreeing or determining the reviewed
rent or of appointing an expert
7 Rental adjustments
7.1 If the market rent has not been agreed or determined in accordance
with the provisions of this Schedule before the relevant review date,
then, until the market rent has been so agreed or determined, the
Tenant will continue to pay on account rent at the rate of yearly rent
payable immediately before the relevant review date
7.2 The Tenant will pay to the Landlord within seven days after the time
that the market rent has been agreed or determined all arrears of the
reviewed rent which have accrued in the meantime, with interest equal
to the base rate of National Westminster Bank Plc on each of the
instalments of the arrears from the time that it would have become due
if the market rent had then been agreed or determined until payment
becomes due from the Tenant to the Landlord under this paragraph 7.2
8 Reviewed rent reserved in phases
The Landlord and the Tenant may, at any time before the market rent is
determined by an expert, settle the reviewed rent in more than one
amount and agree to reserve the amounts increasing in phases until the
next review date or, if none, the expiry of the Term
34
9 Memorandum of rent review
The parties shall cause a memorandum of the reviewed rent duly signed
by the Landlord and the Tenant to be endorsed on or securely annexed
to this Lease and the counterpart of this Lease
35
SCHEDULE 3
Insurance provisions
1 Insured Risks
1.1 Insured Risks means the risks and other contingencies against which the
Premises are required to be, or which may from time to time be, insured
under this Lease, but subject to any exclusions limitations and
conditions in the policy of insurance
1.2 Insured Risks include, without limitation, fire, lightning, explosion,
xxxxx, xxxxxxx, flood, bursting and overflowing of water tanks apparatus
or pipes, earthquake, aircraft (but not hostile aircraft) and other
aerial devices dropped from aircraft, riot and civil commotion, malicious
damage and such other risks as the Landlord may reasonably consider it
prudent to insure
1.3 If a risk or contingency itemised, or otherwise included, as an Insured
Risk, can no longer be insured or can only be insured at an uneconomic
rate, the risk or contingency shall cease to be treated as an Insured
Risk from the time that cover is withdrawn and the Landlord has notified
the Tenant of its withdrawal
2 Tenant's liability for insurance premiums
2.1 The Tenant will pay to the Landlord on demand the reasonable insurance
premiums incurred by the Landlord
2.2 Insurance premiums are to include all monies expended, or required to be
expended by the Landlord in effecting and maintaining cover against:
2.2.1 Insured Risks;
2.2.2 three years' loss of rent insurance;
36
2.2.3 such professional fees as may be incurred in connection with rebuilding
or reinstatement of the Premises;
2.2.4 the costs of demolition, shoring up, and site clearance works;
2.2.5 third party and public liability risks; and
2.2.6 value added tax liability on such items
2.3 The insurance cover may take into account cover for the effects of
inflation and escalation of costs and fees, the Landlord's reasonable
estimate of the market rent of the Premises as defined in Schedule 2 in
the context of ensuing rent reviews and the termination of the Lease
3 Tenant's Obligations in relation to insurance cover
3.1 The Tenant will not do anything which may render void or voidable the
insurance of the Landlord on the Premises or which may cause insurance
premiums to be increased
3.2 The Tenant will provide efficient fire extinguishers of a type reasonably
approved by the Landlord, and will adopt such other precautions against
Insured Risks as the Landlord or its insurers may reasonably consider
appropriate
3.3 If the insurance of the Landlord is vitiated in whole or in part in
consequence of an act or omission of the Tenant, persons occupying or
enjoying the use of the Premises through or under the Tenant, or their
respective employees workmen agents or visitors, the Tenant will pay to
the Landlord on demand a sum equal to the amount of the insurance monies
which have become irrecoverable in consequence of that act or omission
37
3.4 The Tenant may not insure the Premises for any of the Insured Risks in
such a manner as would permit the insurer of the Landlord to average the
proceeds of insurance or cancel insurance cover
3.5 The Tenant will notify the Landlord forthwith of the occurrence of damage
to the Premises by any of the Insured Risks
3.6 If the Premises are damaged by Insured Risks, the Tenant will pay to the
Landlord on demand the amount of any reasonable uninsured excess to which
the insurance cover of the Landlord is subject
3.7 The obligations of the Tenant to repair and to yield up in repair the
Premises are to remain operative to the extent that the insurance of the
Landlord in respect of Insured Risks is vitiated or insurance monies are
withheld by reason of an act or omission of the Tenant, persons occupying
or enjoying the use of the Premises through or under the Tenant, or their
respective employees workmen agents or visitors, but do not otherwise
operate in respect of damage to the Premises by Insured Risks
4 Landlord's obligation to insure and reinstate
4.1 The Landlord will keep the Premises insured with an insurer of repute
against Insured Risks and other items referred to in paragraph 2.2 for
the full cost of reinstatement, subject to such uninsured excess as the
insurer may reasonably apply
4.2 Following the occurrence of damage to or destruction of the Premises by
an Insured Risk, the Landlord will diligently apply, or procure the
application of, the proceeds of the insurance covering reinstatement and
rebuilding costs for those purposes, and will make good any deficiency in
the proceeds of the insurance out of its own resources
38
4.3 The obligations of the Landlord in paragraph 4.2 do not apply:
4.3.1 if the Landlord is unable, after using its reasonable endeavours to do
so, to obtain any requisite planning permission or other consents for the
reinstatement or rebuilding of the Premises or of a building of similar
size character and amenity; or
4.3.2 if the Landlord's insurance is vitiated by reason of an act or omission
of the Tenant, persons occupying or enjoying the use of the Premises
through or under the Tenant, or their respective employees workmen agents
or visitors
4.4 Where the Premises are substantially damaged or destroyed, the Tenant may
not object to the reinstatement or rebuilding of the Premises in a form
which is not identical to the Premises immediately before the damage or
destruction occurred if the Premises as reinstated or rebuilt are of
equivalent or better standard, with materially the same floor area and
affords amenities which are not inferior to or deficient from those
enjoyed by the Tenant before the occurrence of the damage or destruction
5 Landlord's obligations in relation to insurance
5.1 The Landlord will use its reasonable endeavours to procure that its
insurers waive entitlement to rights of subrogation against the Tenant,
persons occupying or enjoying the use of the Premises through or under
the Landlord, and their respective employees workmen agents or visitors
5.2 The Landlord will notify its insurers of the Tenant's interest in the
Premises and, if practicable, have it noted on the policies of insurance
39
5.3 The Landlord will provide the Tenant with a copy of its insurance
policies (or other evidence of the conditions of insurance) on the
Premises, and at the request of the Tenant with a receipt for the payment
of the last premium or other evidence of renewal and up-to-date details
of the amount of cover
5.4 The Landlord will promptly notify the Tenant of any changes in its
insurance cover or of the terms on which cover has been effected
5.5 The Landlord may retain for its exclusive benefit any discount on the
insurance premiums or commission offered to it by its insurer
6 Suspension of Rent
6.1 Paragraph 6.2 applies if the Premises are at any time during the Term so
damaged by an Insured Risk as to render the Premises or any part of them
unfit for occupation use or enjoyment, except in the circumstances
referred to in paragraph 4.3.2
6.2 The rent and additional rent reserved by this Lease, or a fair proportion
of them according to the nature and extent of the damage sustained, shall
be suspended and cease to be payable until the Premises (excluding
fitting out works and replacement of contents) have been reinstated and
made fit for occupation use and enjoyment, or, if earlier, until the
expiry of three years from the occurrence of the damage
6.3 A dispute as to the amount of the abatement of the rent or the duration
of the period of abatement is to be submitted to a single arbitrator, by
whose decision the parties are to be bound, who is to be appointed by the
parties jointly if they can agree on one, but if they do not agree, then
by the President for the time being of the Royal Institution of Chartered
Surveyors at the request of either party, and the arbitration is to be
conducted under the Arbitration Acts 1950-1979
40
7 Options to determine
7.1 If for any reason beyond the control of the Landlord it proves impossible
to commence rebuilding or reinstatement of the Premises within two years
of the occurrence of the damage by an Insured Risk, the Landlord may
terminate this Lease by giving to the Tenant notice to that effect at any
time until such rebuilding and reinstatement has actually commenced
7.2 If the rebuilding or reinstatement of the Premises has not been commenced
two years after the occurrence of the damage by an Insured Risk, the
Tenant may give three months notice to the Landlord of intention to
terminate this Lease, and if the rebuilding or reinstatement work has not
commenced in xxxxxxx within three months of the giving of the notice,
this Lease shall terminate at the expiry of the notice
7.3 The termination of this Lease under this paragraph 7 shall not affect any
liability which has accrued at any time before the time of termination
8 Retention of insurance proceeds
On the termination of this Lease under paragraph 7, or if this Lease is
terminated by the operation of the doctrine of frustration, the Landlord
shall be entitled to retain for its exclusive benefit the proceeds of
insurance
41
SCHEDULE 4
Form of guarantee on assignment
1 Guarantee
1.1 The Guarantors jointly and severally guarantee to the Landlord (but only
for such period as the Lease remains vested in the BL Assignee) that
the Tenant will pay the rents reserved by and perform and observe all the
Tenant's covenants in this Lease and the Guarantors will pay and make
good to the Landlord on demand any losses damages costs and expenses
suffered or incurred by the Landlord by reason of any failure of the
Tenant to do so
1.2 In the context of these guarantee provisions, references to the Tenant
are to the Assignee only (in its capacity as Tenant) with respect of whom
this guarantee is given
2 No waiver or release of liability
The Guarantors shall not be released from liability under these
provisions by reason of:
2.1 any forbearance the granting of time or any other indulgence on the part
of the Landlord, including (but without affecting the general operation
of this paragraph 2) any granting or extension of time under or varying
the procedure set out in Schedule 2, paragraph 5; or
2.2 any variation of this Lease, whether or not made with the consent of the
Guarantors, and the guarantee of the Guarantors in clause 1 is to operate
in relation to this Lease as it may be varied from time to time
42
3 Guarantors to accept new lease upon disclaimer
3.1 If this Lease is effectively determined by disclaimer at any time during
such period as the Lease is vested in the Assignee, the BL Guarantors
shall, if the Landlord by notice within three months after the date of
determination so requires take from the Landlord a lease of the Premises
3.2 The lease is to be granted to the Guarantors under clause 3.1 is to be on
the following terms:
3.2.1 the term is to commence on the date of termination of this Lease and to
be equal to the residue of the Term which would have remained unexpired
at that date if this Lease had not then been terminated;
3.2.2 the yearly rent is to be the same as would have been payable under this
Lease if it had continued and, if a rent review operative from a review
date before the grant of the lease has not been completed, the Guarantors
will complete the rent review as if it had been the Tenant under this
Lease;
3.2.3 the lease is otherwise to be on the same terms and conditions as would
have applied under this Lease if it had continued undetermined; and
3.2.4 the Guarantors are to succeed to the rights and assume the liability of
the Tenant under this Lease as if the Lease had continued undetermined
4 Subordination of rights of the Guarantors
4.1 With respect to any sums paid by the Guarantors under this Schedule and
to any other rights which may accrue to the Guarantors in respect of any
sums so paid or liabilities incurred under this guarantee or in the
observance performance or discharge
43
of the obligations and covenants of the Tenant in this Lease, the
Guarantors shall rank and be entitled to enforce its rights only after
all obligations and covenants under this guarantee have been fully
observed and performed, and if they have not the Guarantors shall not:
4.1.1 seek to recover from the Tenant, or any third party whether directly or
by way of set-off lien counterclaim or otherwise or accept any money or
other property or security or exercise any rights in respect of any sum
which may be or become due to the Guarantors on account of the failure by
the Tenant to observe and perform or discharge such obligations or
covenants in this Lease;
4.1.2 claim, prove or accept any payment in composition by way of winding-up,
liquidation, bankruptcy or other form of insolvency of the Tenant in
competition with the Landlord for any amount whatsoever owing to the
Guarantors by the Tenant; nor
4.1.3 exercise any right or remedy in respect of any amount paid by the
Guarantors under this Lease or any liability incurred in observing
performing or discharging the obligations and covenants of the Tenant
4.2 The Guarantors warrant that it has not taken, and undertakes with the
Landlord that it will not without the consent of the Landlord (such
consent not to be unreasonably withheld):
4.2.1 take any security from the Tenant in respect of this guarantee and, if
any such security is so taken notwithstanding, it shall be held on trust
for the Landlord as security for the respective liabilities of the
Guarantors and the Tenant; nor
4.2.2 be entitled to any right of proof in the bankruptcy, liquidation or other
form of insolvency of the Tenant or exercise any other right of the
Guarantors discharging his liability in respect of such obligations and
covenants
44
EXECUTED under the )
Common Seal Of )
PDFM LIMITED )
in the presence of:- )
/s/ [ILLEGIBLE]^^ XXXX APPEARS HERE
/s/ [ILLEGIBLE]^^
45
