DATED: 12th August 1998
COMLAND INDUSTRIAL AND COMMERCIAL
PROPERTIES LIMITED (1)
to
INSIGNIA SOLUTIONS PLC (2)
LEASE OF
APOLLO HOUSE MERCURY CENTRE
WYCOMBE LANE WOOBURN GREEN
HIGH WYCOMBE BUCKINGHAMSHIRE
[MANCHES LOGO]
Manches & Co 0 Xxxxxxxxx Xxxxxx Xxxxxx XX0 0XX
THIS LEASE is made the 12th day of August One thousand nine hundred and
ninety eight
BETWEEN
(1) COMLAND INDUSTRIAL AND COMMERCIAL PROPERTIES LIMITED
(Company Registration Number 2126351) whose registered office is at
Riverside House Riverside Holtspur Lane Xxxxxxx Xxxxx Xxxx Xxxxxxx
Xxxxxxxxxxxxxxx XX00 0XX ("the Landlord")
(2) INSIGNIA SOLUTIONS Plc (Company Registration Number 01961960)
whose registered office is at Xxxxxxxxxx Xxxxx Xxxxxx Xxxx Xxxx Xxxxxxx
Xxxxxxxxxxxxxxx XX00 0XX ("the Tenant")
WITNESSETH as follows:-
1. INTERPRETATION
(1) In these Presents where the context so admits the following expressions
shall have the following meanings:-
(i) "the 1954 Act" means The Landlord and Xxxxxx Xxx 0000
(ii) "Account Date" means 31st December in every year of the Term or
such other date as the Landlord may from time to time nominate
(iii) "adjoining or neighboring land or premises" includes any adjoining
or neighboring land or premises whether or not belonging to the
Landlord
(iv) "Building" means any building from time to time on the Demised
[MAP]
[MAP]
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Premises
(v) "Business Day" means a day (other than a Saturday or a Sunday) on
which banks are generally open in London for normal business
(vi) "Clearing Bank" means a bank which is a member of CHAPS and Town
Clearing Company Limited
(vii) "company" means a body corporate wheresoever incorporated
(viii) "Conducting Media" means tanks pipes cables wires lights and
light-fittings meters radiators drains sewers gutters and other
things (whether or not of a like nature) for the supply of
electricity telephone gas water soil and other services and
supplies
(ix) "the Demised Premises" means ALL THAT property known as Apollo
House The Mercury Centre Wycombe Lane Wooburn Green High
Wycombe Buckinghamshire forming part of the Estate and shown for
the purposes of identification only edged red on Plan A and each
and every part thereof including without prejudice to the foregoing
the Building and all entrances entrance-halls plant rooms heating
apparatus and other apparatus stairs and passageways and the
accessways yards open areas and the Conducting Media within or
exclusively serving the Demised Premises together with the
Landlord's fixtures and fittings from time to time therein and each
and every part thereof together with all alterations additions and
improvements to the Demised Premises
(x) "Estate" means the Landlord's estate of which the Demised Premises
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form part known as The Mercury Centre Wycombe Lane Wooburn
Green High Wycombe Buckinghamshire shown verged blue on Plan B
together with such additional land or excluding such land of lesser
area (but including the Demised Premises and the land over which it
enjoys rights granted by this Lease) as the Landlord may from time
to time specify and together with all buildings fixtures or
structures whatsoever from time to time thereon
(xi) "Estate Services" means the provision and carrying out by or on
behalf of the Landlord of such services as in the opinion of the
Landlord are:-
(a) necessary for the maintenance repair upkeep renewal
insurance security management cleanliness renewal and
replacement of items of plant equipment Conducting Media
landscaping roadways pavements forecourt car parks and/or
common areas and common facilities forming part of the
Estate and forming part of the land shown hatched black on
Plan B; or
(b) for the benefit of tenants of the Estate; or
(c) otherwise in keeping with the principles of good estate
management of the Estate
and the Landlord may from time to time withhold add to or extend
and vary or make any alteration in the nature of matters previously
performed as Estate Services if the Landlord considers it necessary
or in the interests of good estate management
(xii) "Estate Service Expenditure" means all expenditure incurred by the
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Landlord or which the Landlord reasonably anticipates is likely to
be incurred during the Term in providing all or any of the Estate
Services including (without prejudice to the generality of the
foregoing):-
(a) the cost of repairing resurfacing cleaning lighting maintaining
renewing replacing and improving the estate roads serving the
Estate and the forecourt car parking areas loading bays landscaped
areas boundary walls fences xxxxxx xxxxx entrances and signs now or
at any time during the Term constructed on the Estate including any
drains sewers pipes cables gutters inspection xxxxxxxx or any other
services or fittings relating thereto over in or under the Estate
(b) the cost of retaining and providing the services of all staff
necessary for the efficient maintenance and management of the
Estate
(c) the cost of maintaining proper security in respect of the Estate
both during and outside normal working hours and at weekends
(d) the cost of the maintenance replacement renewal and improvement of
the drainage and sewerage system serving the Estate
(e) the cost of and incidental to compliance by the Landlord with every
notice regulation or order of any competent local or other
authority in relation to the Estate or its appurtenances
(f) (i) all reasonable fees charges expenses and commissions
properly incurred in the administration and management of
the Estate or payable to any solicitor accountant surveyor
valuer agent or architect or any of them whom the Landlord
may from time to time employ in connection with the
management or maintenance of the Estate including the cost
of preparing or causing to be prepared statements of the
said costs charges and expenses and auditing the same
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(ii) a charge equivalent to ten per centum of the aggregate costs
expenses and outgoings referred to in this clause
1(1)(xiii) (but excluding this sub-paragraph (f)(ii)) such
sum to be in respect of the general administration and
supervision costs of the Landlord relating to or in
connection with the matters specified or referred to in this
Clause 1(1)(xiii) or any of them PROVIDED that any sums
payable to a managing agent under the immediately preceding
sub-paragraph (f)(i) in respect of the management or
supervision of the Estate and which shall be included in the
calculation of the said aggregate costs expenses and
outgoings shall be deducted from the charge included by
virtue of this sub-paragraph
(g) the costs of effecting and maintaining in force an insurance policy
or policies against any and every liability of the Landlord for
injury to or death of any person (including every agent servant and
xxxxxxx of the Landlord) and damage to or destruction of the
property by any such person arising out of the maintenance of the
Estate
(h) the cost of carrying out all other work or providing services of
any kind whatsoever which the Landlord may from time to time
reasonably consider necessary or desirable for the purpose of
maintaining or improving the Estate in the interests of the tenants
thereof
(i) such sums as the Landlord shall in its discretion think fit as
being a reasonable provision for expenditure likely to be incurred
during the Term in connection with the matters mentioned in this
and the preceding paragraphs
but excluding any expenditure on any part of the Estate for which any other
tenant shall be directly responsible and/or which shall be attributable
(whether directly or indirectly) to the construction by the Landlord of
Phase 2 of the Estate on that part of the Estate shown coloured orange on
Plan B but giving credit for any sums payable to the Landlord from any
owner or occupier of adjoining land towards the cost of provision of Estate
Services
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(xiii) "the Initial Rent" is One Hundred and Five Thousand Pounds
(L105,000) per annum
(xiv) "the Insured Risks" means the risks covered from time to time by
the insurance policy effected by the Landlord pursuant to its
covenant herein contained including a minimum of three years loss
of rent and risks in respect of fire lightning explosion storm
tempest flood aircraft and articles dropped therefrom impact storm
riot and civil commotion burst pipes and tanks and damage to or
failure of the boilers lifts lift apparatus plant rooms heating and
air conditioning apparatus and other apparatus plant and machinery
in the Demised Premises subsidence heave landslip and such other
risks or perils (if any) as the Landlord may from time to time deem
prudent to insure
(xv) "the Landlord" includes the person or persons for the time being
entitled to the reversion immediately expectant on the Term
(xvi) "Plan A" and "Plan B" means the plan or plans so marked annexed
hereto
(xvii) "the Planning Acts" means and includes the Town & Country Planning
Acts 1990 the Planning (Listed Buildings and Conservation Areas)
Xxx 0000 the Planning (Hazardous Substances) Xxx 0000 the Planning
(Consequential Provisions) Xxx 0000 the Environmental Protection
Xxx 0000 the Planning and Compensation Xxx 0000 and the Environment
Xxx 0000
(xviii) "Possession Date" means whichever is the earliest of the date
hereof or
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the date upon which the Tenant takes possession of the Demised
Premises or has access to the Demised Premises for the purposes of
commencing its fitting out works
(xix) "these Presents" means this Lease and the Schedules hereto and any
licences granted pursuant hereto and any deed of variation hereof
and any deed or other instrument made supplemental hereto
(xx) "Provisional Sum" in relation to each Service Period means an
amount calculated by the Landlord's managing agents acting as
experts and not arbitrators as their reasonable and proper estimate
of the likely Service Rent for the relevant Service Period
(xxi) "the Rent Commencement Date" means the day 12th August 1998
(xxii) "Review Date" means the 12th day of August 2003 and the 12th day of
August 2008
(xxiii) "Service Period" means the period:-
(a) from the Possession Date to (and including) the first
Account Date; and thereafter
(b) between two consecutive Account Dates (excluding the first
and including the second); and thereafter
(c) commencing immediately after the last Account Date of the
Term and ending on the expiration or sooner determination of
the Term
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(xxiv) "Service Rent" is the relevant proportion applicable to the Demised
Premises from time to time of the Estate Service Expenditure for
any relevant Service Period
(xxv) "the Tenant" includes the successors in title and assigns of the
Tenant(s)
(xxvi) "the Term" means a term of 15 years commencing on the 12th day of
August 1998 together with any holding over continuation or
extension thereof whether by agreement operation of law or
otherwise
(xxvii) "underlease" means any lease granted or agreed to be granted
(whether immediately or not) out of the Term and "underlessee"
means the lessee for the time being thereunder and "underletting"
means the grant of any underlease
(2) AND in these Presents unless there is something in the context inconsistent
therewith:-
(i) words importing the masculine gender shall include every gender and
vice versa and words importing the singular shall include the
plural and vice versa and words importing persons and all
references to persons shall include companies corporations and
firms and vice versa and references to a natural person include his
estate and personal representatives
(ii) if at any time two or more persons are included in the expression
"the Landlord" "the Tenant" or "the Surety" then covenants herein
contained or implied by or on the part of such persons shall be
deemed to be and
9
shall be construed as covenants entered into by and binding on such
persons jointly and severally
(iii) any reference to any enactment (whether generally or specifically)
shall be construed as a reference to that enactment as amended
extended re-enacted or applied or consolidated by or under any
other enactment and shall include all instruments orders plans
regulations permissions and directions made or issued thereunder or
deriving validity therefrom
(iv) the clause and paragraph headings in this Lease are for ease of
reference only and shall not be taken into account in the
construction or interpretation of any covenant condition or proviso
to which they refer
(v) references in this Lease to a clause Schedule or paragraph are
references where the context so admits to a clause Schedule or
paragraph of this Lease and references to a paragraph of a Schedule
are (unless the context otherwise requires) references to a
paragraph of that Schedule in this Lease
(vi) any covenant by the Tenant or any underlessee not to do any act or
thing shall include a covenant not to permit or suffer the doing of
that act or thing
(vii) the perpetuity period applicable to this Lease shall be eighty
years from the date hereof and wherever in this Lease either party
is granted a future interest in property there shall be deemed to
be included in respect of every such grant a provision requiring
that future interest to
10
vest within the stated period and for it to be void for remoteness
if it shall not have so vested
(viii) Clause headings shall not affect the construction of this Lease
2. THE DEMISE
The Landlord HEREBY DEMISES unto the Tenant the Demised Premises TOGETHER
with the particular rights in the First schedule hereto so far as the
Landlord has power to grant the same BUT EXCEPT AND RESERVING AND SUBJECT
to the particular rights and matters in the Second Schedule hereto AND
SUBJECT ALSO to and with the benefit of the matters referred to in the
Third Schedule hereto and to such other rights easements quasi-easements
and privileges as are enjoyed by any adjoining or neighbouring land or
premises in any manner affecting the Demised Premises TO HOLD the Demised
Premises unto the Tenant (together with but except and reserved and subject
as aforesaid) for the Term YIELDING AND PAYING therefor unto the Landlord
during the Term and so in proportion for any less time than a year without
any deductions therefrom whatsoever the following rents namely:-
(a) First from the Rent Commencement Date and during the remainder of
the Term the Initial Rent or such higher yearly rent as may become
payable pursuant to review under Clause 6 hereof such yearly rent
to be payable by equal quarterly payments in advance on the usual
quarter days in each year of which the first payment (being the due
proportion for the period commencing on the Rent Commencement Date
and ending on the day preceding the usual quarter day thereafter)
to be paid on or before the Rent Commencement Date
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(b) Secondly throughout the Term by way of additional rent all sums
(including the whole of any increase in any premium from time to
time as a result of or arising out of the manner or the purposes in
or for which the Demised Premises are kept used and occupied and
the cost of periodically revaluing but not more than once in any
year the Demised Premises for insurance purposes) incurred by the
Landlord in respect of the several insurances referred to in Clause
4(1) hereof each such sum to be paid by the Tenant forthwith on
demand therefor (but not earlier than one month before the next
renewal date) the first such payment in respect of the amounts
already so expended by the Landlord (being the due proportion
thereof for the period from the Possession Date to the next renewal
date or dates for such insurances) to be paid on or before the date
hereof and in the event of any dispute as to any such sum the same
shall be reasonably determined by the Landlord's surveyor (acting
as an independent expert and not as an arbitrator) whose
determination shall in the absence of manifest error be final and
binding on the parties save as to questions of law and
(c) Thirdly with effect from the Possession Date as additional yearly
rent the Service Rent (including the Provisional Sum on account)
payable in accordance with the provisions of clause 9 hereof
(d) Fourthly by way of additional rent all other sums payable by the
Tenant hereunder including (without prejudice to the generality of
the foregoing) interest collection charges costs and Value Added
Tax on the rents hereinbefore made payable such sums to be paid
upon demand
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3. TENANT'S COVENANTS
The Tenant to the intent that the obligations hereby created shall continue
throughout the whole of the Term HEREBY COVENANTS with the Landlord as
follows:-
(1) RENT
(a) To pay the rents hereby reserved at the times and in the manner
aforesaid and not to exercise or to seek any right or claim to
withhold rent or any right or claim to legal or equitable set-off
(b) If so required by the Landlord to make such payments by bankers
order or credit transfer to any bank account or other account in
the United Kingdom which the Landlord may from time to time
reasonably nominate
(2) OUTGOINGS
(a) To pay and keep the Landlord fully indemnified from and against all
liability for all general and other rates of whatever nature or
kind and all taxes charges duties levies assessments impositions
and outgoings whatever (whether parliamentary parochial local or of
any other description) which are now or may become payable in
respect of the Demised Premises whether by the owner tenant or
occupier thereof other than those which occur as a direct or
indirect result of any dealing by the Landlord in respect of its
reversionary interest or taxes imposed on the Landlord in respect
of the rents reserved in these Presents (save for VAT) and in
addition to indemnify the Landlord
13
against any rates and outgoings payable by the Landlord after the
expiration or sooner determination of the Term through the
Landlord's inability to claim void rate relief for the maximum
period (commencing with the date of the expiration or sooner
determination of the Term) which would have been allowed had the
Demised Premises been occupied up to the date of the expiration or
sooner determination of the Term
(b) (i) To pay to the Landlord in addition to the rents and other
sums payable under this Lease amounts equal to any Value
Added Tax (or similar tax whether in substitution for or in
addition to it) chargeable on any supply made by the
Landlord to the Tenant under the terms of or in connection
with this Lease
(ii) To pay and to indemnify the Landlord against amounts equal
to any Value Added Tax (or similar tax as aforesaid)
chargeable by reference to any sum paid or payable by the
Landlord in respect whereof (or some part thereof) the
Tenant agrees under this Lease to reimburse or indemnify the
Landlord save where the Landlord is able to reclaim the same
as an input credit (unless the Landlord is required by law
to recharge the VAT to the Tenant)
(c) To pay all charges (including meter rents and standing charges) for
supplies of gas water and electricity consumed upon the Demised
Premises
(d) Not to agree or by default allow to be fixed the rateable value of
the Demised Premises or any part thereof without the prior written
14
consent of the Landlord such consent not to be unreasonably
withheld and to co-operate with the Landlord at the joint cost of
the Landlord and the Tenant in any negotiations with the District
Valuer or in any appeal to the Court or to the Lands Tribunal in
respect of the rateable value of the Demised Premises
(3) REPAIR
At all times during the term to put and keep the Demised Premises and means
of escape therefrom in case of fire or other emergency and Conducting Media
forming part of and exclusively serving the Demised Premises in good and
substantial repair and condition and to amend rebuild renew and replace
whenever necessary in accordance with good modern practice the whole or any
part of the Demised Premises if the same is or becomes beyond repair and to
maintain decorate support and clean the Demised Premises and to repair and
to keep all yards and spaces not built upon clean tidy and free from refuse
and weeds and to keep the external fabric and stonework cleaned and
maintained as and when necessary and to keep the central heating and hot
water boilers apparatus and installations and all sanitary and water
apparatus for the time being of and serving the Demised Premises in good
and substantial repair and clean condition and at all times in good and
safe working condition (damage by the Insured Risks always excepted save to
the extent that the policy or policies of insurance shall be rendered void
or payment of the insurance moneys thereunder be refused in whole or in
part by reason of or arising out of any act omission neglect or default of
the Tenant or any underlessee or other person under the control of the
Tenant or any underlessee) and to clean the glass in the Demised Premises
inside at least once a month and the outside bi-monthly and (without
prejudice to the generality of the foregoing obligations of the
15
Tenant):-
(a) in a good and workmanlike manner and to the satisfaction of the
Landlord in every third year of the Term calculated from the date
hereof and also in the last three months of the Term (however and
whenever it may terminate) to paint all the external woodwork
ironwork metalwork cement or stucco-work (if any) and all other
external parts of the Demised Premises which have been previously
painted or ought to be painted with at least two coats of good
quality paint of a colour (if different from that used previously)
first specified or approved in writing by the Landlord (such
approval not to be unreasonably withheld or delayed)
(b) in like manner and to the like satisfaction in every fifth year of
the Term calculated from the date hereof and also in the last three
months of the Term (however and whenever it may terminate) to paint
with at least two coats of good quality paint all interior parts of
the Demised Premises which have previously been or ought to be
painted and paper or otherwise suitably decorate or treat with good
quality materials as circumstances may require all parts of the
interior of the Demised Premises which have previously been or
ought to be so dealt with
(c) as often as may be necessary to maintain in good and substantial
condition and to clean and treat in a suitable manner all surfaces
fixtures and fittings not required to be decorated and so often as
it shall be necessary to repair maintain and renew any plant
machinery boilers equipment and fixtures and fittings
16
(d) to comply with the requirements or recommendations of any
maintenance and operating manuals provided by the Landlord to the
Tenant
(e) to enter into contracts for the periodic and regular inspection
servicing and maintenance of the lifts lift shafts and lift
apparatus and the hot water boilers and central heating apparatus
and the air-conditioning and ventilation apparatus and any other
apparatus and installations machinery and equipment and all
sanitary and water apparatus and thereafter to keep the same on
foot and observe and perform the Tenant's obligations thereunder
and to produce to the Landlord on demand from time to time such
contracts and evidence that any payments due from the Tenant
thereunder are fully paid up-to-date
(4) COMPLIANCE WITH STATUTES
(a) In connection with the Defective Premises Xxx 0000 to notify the
Landlord in writing immediately the Tenant becomes aware of any
defect in the Demised Premises which may cause personal injury and
to indemnify the Landlord against any claims proceedings demands
costs and expenses incurred under Section 4 of the said Act by
reason of the Tenant's failure to erect and display prominently any
such notice or warning of relevant defects (within the meaning of
that Section) which the Landlord may request AND without prejudice
to the foregoing to permit the Landlord and its agents with or
without workmen and others at any time on reasonable notice to
enter upon the Demised Premises for any or all of the following
purposes namely erecting and exhibiting notices thereon and giving
warning of
17
relevant defects within the meaning of Section 4 of the said Act in
the Demised Premises and installing lighting or any other reasonable
means of warning or protection against such defects
(b) To observe and perform all requirements of any Act of Parliament
local Act or bye-law and notices issued thereunder or of any public
local or other competent authority (whether or not required of the
Tenant itself) in any way affecting the Demised Premises or any
thing in or any activity carried on by persons residing at or
working or employed at the Demised Premises or the use and
occupation thereof within the time limited by law or the notice
requiring the same (or if no time is so limited then within a
reasonable time) and to indemnify and keep the Landlord fully
indemnified against all such requirements and all actions
proceedings costs claims demands expenses and liability whatever
arising out of or in connection with the non-observance or
non-performance thereof
(c) Comply with all requirements and regulations of the electricity and
gas supply authorities as to the electrical and gas installations
in the Demised Premises and not without the Landlord's written
consent (which shall not be unreasonably withheld or delayed) to
alter or extend the electrical or gas installations or electrical
wiring in the Demised Premises nor to use any apparatus which
overloads the electrical or gas installations in the Demised
Premises
(5) PARTY STRUCTURES
(To the extent that the same is not included in the Estate Service
Expenditure) on receipt of a written demand from or on behalf of the
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Landlord forthwith to pay a just proportion fairly attributable to the
Demised Premises of all expenses of making maintaining upholding repairing
rebuilding renewing scouring and cleansing any party walls fences gates and
railings and any path ways yards external means of escape in case of fire
or other emergency and Conducting Media and other structures which are
available for enjoyment and use by the occupiers of the Demised Premises
jointly with the occupiers of any adjoining or neighbouring land or
premises such proportion if in dispute to be reasonably determined by the
Landlord's surveyor (acting as an independent expert and not as an
arbitrator) whose determination shall be final and binding upon the
parties save as to questions of law or in the event of manifest error
(6) YIELD UP IN GOOD REPAIR AT THE END OF THE TERM
Quietly to surrender and yield up the Demised Premises to the Landlord
or as the Landlord may direct at the end or sooner determination of the
Term in a state and condition in all respects in accordance with the
covenants on the part of the Tenant herein contained Provided that if at
the expiration or sooner determination of the Term the Demised Premises
shall not be in such a state of repair and condition as shall be in
accordance with the Tenant's covenants and provisions herein contained
for or relating to the repair painting or the carrying out of any other
works on the Demised Premises by the Tenant then the Tenant shall pay to
the Landlord forthwith on demand a sum equivalent to the cost to the
Landlord of carrying out such repairs painting and works as shall be
necessary to put the Demised Premises in such a state of repair and
condition as aforesaid together with an amount representing the loss of
the rent first hereby reserved suffered by the Landlord for such
reasonable period to enable such repairs painting and works to be
carried out such sum in default of agreement to be certified by
19
the Landlord's surveyor (acting as an independent expert and not as an
arbitrator) whose determination shall be final and binding upon the
parties save as to questions of law or in the event of manifest error
7. LANDLORD'S RIGHT OF INSPECTION AND RIGHT OF REPAIR
(a) To permit the Landlord and others authorised by the Landlord after
48 hours prior written notice at reasonable hours during the
daytime to enter upon the Demised Premises to view and inspect the
Demised Premises and ascertain how the same are being used and
occupied and the state and condition thereof and to take schedules
of all Landlord's fixtures and fittings and to estimate the current
value the Demised Premises for insurance mortgage or other purposes
(b) Whenever on any such inspection anything is found which constitutes
a breach non-performance or non-observance of the convenants on the
part of the Tenant herein contained and of which the Landlord gives
notice to the Tenant to remedy and make good the same within two
months of the date of such notice (or sooner if necessary) but if
the Tenant shall fail so to do to permit the Landlord if it so
desires (although the Landlord shall be under no obligation so to
do) without prejudice to the Landlord's right of re-entry
hereinafter contained or any other right or remedy of the Landlord
to enter upon the Demised Premises with contractors workmen and
others and all necessary equipment tools and materials and to
execute or complete such works and to pay to the Landlord on
written demand either during or on completion of such works as the
Landlord may require the costs and expenses thereby incurred by the
Landlord together with all solicitors' surveyors' and other
professional fees and expenses
20
incurred by the Landlord in relation to such works such sums to be
recoverable as rent in arrear
(c) To permit the Landlord and others authorised by the Landlord and
the tenants owners or occupiers from time to time of any adjoining
or neighboring land or premises and their respective agents and
contractors to enter upon the Demised Premises with workmen and
others and all necessary equipment tools and materials after at
least 48 hours prior written notice (except in an emergency when no
prior notice need be given and if necessary to break into the
Demised Premises) in order to carry out repairs alterations
additions decorations or any other works to or on any adjoining or
neighbouring land or premises which cannot reasonably be carried
out without entry on to the Demised Premises PROVIDED ALWAYS that
the persons so entering shall cause thereby as little inconvenience
as possible to the Tenant or the other occupiers of the Demised
Premises and shall with the minimum of delay make good all physical
damage thereby caused to the Demised Premises
(8) LANDLORD'S COSTS AND EXPENSES
To pay on demand all costs charges and expenses (including solicitors'
costs architects' managing agents and surveyors' fees) payable by the
Landlord for the purposes of and incidental to:
(a) the preparation service or enforcement (whether by proceedings or
otherwise) of any notice under Section 146 or 147 of the Law of
Property Xxx 0000 requiring the Tenant to remedy a breach of any of
the Tenant's obligations hereunder notwithstanding forfeiture for
any
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such breach shall be avoided otherwise than by relief granted by
the Court
(b) the preparation service or enforcement (whether by proceedings or
otherwise) of any notice to repair or schedule of dilapidations
accrued at or prior to the end or sooner determination of the Term
whether or not served during the Term
(c) the collection of the rents and other amounts payable by the Tenant
hereunder
(d) the performance and observance of any other of the provisions of
this Lease
(e) any application by the Tenant to the Landlord for consent or
approval under the terms of this Lease and these Presents whether
such consent is given unconditionally or subject to conditions or
refused or the request for the same is withdrawn subject to such
costs being reasonable and proper
(9) INSURANCE AND PROVISIONS IN CASE OF FIRE ETC.
(a) If the Demised Premises or any part thereof shall be destroyed or
damaged as a result of any act omission neglect or default by or on
the part of the Tenant or any underlessee or any person under the
control of the Tenant or any underlessee whereby any policy of
insurance maintained by the Landlord is rendered void or payment of
the insurance money thereunder is refused in whole or in part to
pay to the Landlord on written demand or otherwise make good to the
22
Landlord all loss damage and expense thereby incurred and to
indemnify the Landlord against all actions proceedings costs claims
demands and liability whatsoever resulting therefrom or arising
thereout including the cost of rebuilding reinstating replacing and
making good the Demised Premises
(b) To keep the Demised Premises supplied with such fire prevention and
fire fighting equipment as the insurers and Fire Authority may
require and to maintain the same to their satisfaction
(c) To comply with all requirements and reasonable recommendations of
the insurers and Fire Authorities as to fire precautions and fire
fighting equipment relating to the Demised Premises or the conduct
of persons using the Demised Premises
(d) In the event of the Demised Premises or any part thereof being
destroyed or damaged by any of the Insured Risks to give notice
thereof to the Landlord as soon as possible
(e) Not to leave the Demised Premises vacant or unoccupied for a period
in excess of 21 days without first giving the Landlord at least 21
days prior written notice of the intention so to do and without
first paying any additional or increased premium required by the
insurers and in the event the Demised Premises are left vacant
during the last three months of the Term (howsoever determined) to
indemnify the Landlord against any loss of empty rate relief he
would otherwise enjoy at the end of the Term
(f) Not to do or omit to do anything or bring onto the Demised Premises
23
any explosive flammable or toxic or otherwise harmful chemicals or
materials or any other matter or thing of whatsoever nature which
shall or may cause the policy or policies for the insurance of the
Demised Premises or any adjoining or neighboring land or premises
to become void or voidable or any premium payable to be increased
above the ordinary or common rate for similar premises
(g) Forthwith to inform the Landlord in writing of any conviction
judgement or finding of any Court or Tribunal relating to the
Tenant (or any director or other officer or major shareholder of
the Tenant) of such nature as to be likely to affect the decision
of any insurer or underwriter to grant or to continue insurance of
any of the Insured Risks
(h) The Tenant warrants that prior to the execution of this Lease it
has disclosed to the Landlord in writing any conviction judgement
or finding of any Court or Tribunal relating to the Tenant (or any
director or other officer or major shareholder of the Tenant) of
such nature as to be likely to affect the decision of any insurer
or underwriter to grant or to continue insurance of any of the
Insured Risks
(i) Not to insure or effect any insurance in respect of the Demised
Premises or any plateglass therein insofar as the same are insured
by the Landlord from time to time
(j) In the event of a claim upon the Landlords Policy of insurance any
shortfall arising in the insurance monies due to the imposition of
an excess by the Insurers any such excess shall be borne by the
Tenant
24
and paid to the Landlord upon demand
(10) USER
(a) The Demised Premises shall be kept used and occupied only as
business commercial or professional offices or subject to the prior
written consent of the Landlord (such consent not to be
unreasonably withheld or delayed) any other use within Class B1 of
the Town and Country Planning (Use Classes) Order 1987 (but not as
diplomatic offices or as a betting office or bookmaker's office as
a jobcentre or an office for the Department of Health and Social
Security) and not in any other manner or for any other purpose or
for any immoral or unlawful purpose or for any sale by auction or
for any residential purpose PROVIDED that the Tenant hereby
acknowledges and admits that notwithstanding the foregoing
provisions as to the use of the Demised Premises permitted to the
Tenant the Landlord does not thereby or in any way give or make any
representation or warranty that any such use is a permitted use
within the provisions of the Planning Acts nor shall any consent in
writing which the Landlord may hereafter give to any change of use
be taken as including any such representation or warranty and that
notwithstanding that any such use is not a permitted use within
such provisions the Tenant shall remain fully bound and liable to
the Landlord in respect of the obligations undertaken by the Tenant
by virtue of this Lease without any compensation recompense or
relief of any kind
(b) Neither the Tenant nor any underlessee nor any person under the
control of the Tenant or any underlessee shall overload any floor
of or lift in or serving the Demised Premises or pass or leave
anything of a
25
harmful nature through or in the basins or toilets or Conducting
Media in or serving the Demised Premises (whether exclusively or
jointly with other premises) or do anything at the Demised Premises
which shall be or may become a nuisance (whether indictable or not)
or which shall cause any damage or disturbance to the Landlord or
the owners tenants or occupiers from time to time of any adjoining
or neighboring land or premises
(11) ALTERATIONS
(a) Save and except in order to comply with any of the Tenant's
obligations hereunder there shall be no reconstruction or
rebuilding or carrying-out of any structural alterations additions
or other structural works of or to the Demised Premises nor any
cutting maiming or injuring of the main walls or roof and floor
slabs of the Demised Premises nor any erecting of any new buildings
or erections thereon PROVIDED that if such works are to be carried
out by the Tenant to comply with its obligations in this Lease the
Tenant shall first obtain the written consent of the Landlord to
such works in the manner set out in sub-clause (b) below
(b) Save and except as aforesaid any non-structural alterations
additions and other works of or to the Demised Premises shall be
carried out only after there has first been obtained the written
consent thereto of the Landlord (such consent not to be
unreasonably withheld or delayed) and all necessary approvals
consents licences permits or permissions of any competent authority
body or person and then only strictly in accordance with the terms
and conditions thereof and only in accordance with drawings and
specifications of the relevant
26
alterations additions or other works as the Landlord shall have
required and previously approved in writing (such approval not to
be unreasonably withheld or delayed) PROVIDED ALWAYS that the
Landlord may as a condition of giving such consent require the
Tenant to enter into such covenants with the Landlord as the
Landlord may reasonably require for the execution and supervision
of such works and the reinstatement of the Demised Premises at the
expiry or sooner determination of the Term (howsoever determined)
and such other covenants as the Landlord may reasonably require
(c) To permit the Landlord and others authorised by the Landlord to
enter upon the Demised Premises after reasonable prior notice at
reasonable hours during the daytime for the purpose of seeing that
all alterations additions and other works thereto are being or have
been carried out in all respects in conformity with this clause and
immediately upon being required to do so to remove any alterations
additions and other works of or to the Demised Premises which do
not so conform or in respect of which any such approvals consents
licences permits or permissions of any competent authority body or
person have been withdrawn or have lapsed and thereupon make good
all damage thereby caused to the Demised Premises and restore and
reinstate all parts of the Demised Premises affected thereby to the
reasonable satisfaction of the Landlord
(d) If so required in writing by the Landlord (but not otherwise) at
the expiry or earlier determination of the Term to remove all
alterations and additions made by the Tenant to the Demised
Premises during the Term or during any period of occupation prior
to the commencement of the Term
27
(12) SIGNS
No fascia sign nameplate xxxx notice placard/ advertisement or similar
device shall be affixed to or displayed in or on any part of the Demised
Premises so as to be visible from the exterior thereof save such as
indicates the name of any occupier or occupiers for the time being and its
or their business and save such as has been previously approved by the
Landlord in writing (such consent not to be unreasonably withheld or
delayed)
(13) AERIALS
No television or wireless or other form of mast or aerial receiver dish
nor any flagpole shall be affixed to any part of the exterior of the
Demised Premises save such as has been previously approved by the Landlord
in writing (such consent not to be unreasonably withheld or delayed)
(14) PLANNING ACTS
(a) Without prejudice to the generality of clause 3(4) hereof to
observe and perform all the requirements of any Acts or regulations
relating to fire and the Planning Acts in respect of the Demised
Premises or the use thereof and all the requirements of any
approval consent licence permit or permission granted thereunder
which remain lawfully enforceable and affect the Demised Premises
and to indemnify and keep the Landlord fully indemnified from and
against all actions proceedings costs claims demands expenses and
liability whatsoever arising out of or in connection with any
non-observance or non-performance thereof
28
(b) No application shall be made for any approval consent licence
permit permission certificate or determination under the Planning
Acts in respect of the Demised Premises without the prior written
consent of the Landlord (such consent not to be unreasonably
withheld or delayed)
(c) Unless the Landlord shall otherwise direct in writing to carry out
to the reasonable satisfaction of the Landlord during the Term
(however and whenever it may terminate) all works to the Demised
Premises which as a condition of any such approval consent licence
permit or permission obtained by and implemented by or on behalf of
the Tenant or any underlessee are required to be carried out at the
Demised Premises by a date after the Term (however and whenever it
may terminate)
(15) STATUTORY NOTICES
To give to the Landlord a copy of every notice of whatsoever nature
affecting or likely to affect the Demised Premises made given or issued by
or on behalf of the local planning authority or any other authority body or
person having lawful jurisdiction within fourteen days of its receipt by
the Tenant or any underlessee or sooner if requisite and to produce the
original thereof to the Landlord on written request AND if so required in
writing by or on behalf of the Landlord but at the joint cost of the
Landlord and the Tenant to make or join with the Landlord and any other
persons for the time being interested in the Demised Premises or any
adjoining or neighboring land or premises affected thereby in making such
objections or representations against or in respect of any such notice as
aforesaid as the
29
Landlord may reasonably require
(16) ACCESS TO RE-LET
To permit the Landlord during the period of six months immediately
preceding the end or sooner determination of the Term (and at any time
during the Term in the event of any proposed disposal by the Landlord of
its interest in the Demised Premises) to affix and retain on any part of
the Demised Premises (but not so as thereby materially to interfere with
any trade or business carried on thereat or with reasonable access of light
and air thereto) notices and boards relating to any proposed disposal by
the Landlord of its interest in the Demised Premises or any part thereof or
for reletting or otherwise dealing with the same and to permit all persons
with written authority from the Landlord or the Landlord's agents to
inspect and view the Demised Premises at reasonable times of the day by
previous appointment
(17) ALIENATION
(a) Save as hereinafter permitted the Tenant shall not assign transfer
underlet part with or share possession or occupation mortgage or
charge or declare trusts over the whole or part only of the Demised
Premises and the Tenant shall not permit or suffer any such dealing
as aforesaid
(b) Not to part with possession or share occupation of the Demised
Premises or any part thereof other than by way of:-
(i) an assignment or charge permitted under sub-clause 3(17)(c);
30
or
(ii) an underlease permitted under sub-clause 3(17)(e); or
(iii) sharing of occupation by a company in the same group as the
Tenant permitted under sub-clause 3(17)(f)
(c) Not to assign or charge the whole of the Demised Premises without
the Landlord's prior written consent which consent shall not be
unreasonably withheld or delayed but which in respect of a proposed
assignment may be subject to satisfaction of the conditions set out
in sub-clause 3(17)(d) below and to complete any such assignment
within twenty working days of the issue of the Landlord's consent
provided that nothing in this sub-clause shall prevent the Tenant
charging the Demised Premises pursuant to a floating charge over
its assets entered into prior to the date hereof
(d) The conditions referred to in sub-clause 3(17)(c) which are
specified for the purposes of Section 19(1A) of the Landlord and
Xxxxxx Xxx 0000 are:-
(i) that the Tenant shall have entered into an authorised
guarantee agreement (as defined in Section 16 of the
Landlord and Tenant (Covenants) Act 1995) with the Landlord
in a form which the Landlord reasonably requires
(ii) that any guarantor of the Tenant's obligations under the
Lease shall have guaranteed to the Landlord that the Tenant
will comply with the terms and conditions of the agreement
31
referred to in sub-clause 3(17)(d)(i) and in a form which
the Landlord reasonably requires
(iii) that any arrears of rent and any other payments due under
this Lease (including any outstanding balance due under the
terms of any rent deposit deed or bank guarantee) as at the
date of the Tenant's application for Licence to Assign has
been paid
(iv) that the Landlord reasonably determines that the proposed
assignee is capable of being able to comply with the
Tenant's covenants in this Lease and to continue to be such
a person following the assignment
(v) the Landlord is reasonably satisfied that the completion of
the assignment will not materiality adversely affect the
value of the Landlord's interest in the Demised Premises
(vi) the proposed assignee would in the reasonable opinion of the
Landlord be acceptable to a reasonable institutional
investor in the market taking into account any reasonable
and proper facts including but not limited to the financial
strength of the proposed assignee and any guarantor of the
proposed assignee's obligations and any rent deposit offered
by the assignee
(vii) the execution and delivery to the Landlord prior to the
assignment of a rent deposit deed or the provision of a bank
guarantee for such sum as the Landlord may reasonably
determine but not exceeding 12 months passing rent in a form
32
reasonably acceptable to the Landlord and in substantially
the same form mutatis mutandis (save as the circumstances
require) as a rent deposit deed of even date herewith and
made between the parties hereto in the case of a rent
deposit deed together with the payment by way of cleared
funds of sums specified in the rent deposit deed
(viii) any intended assignee shall enter into a deed of covenant
with the Landlord in such a form as the Landlord shall
reasonably require to observe and perform all the covenants
and agreements on the part of the Tenant herein contained
during such period as the Tenant is bound by the Lease
covenants and in the case of a limited liability company
should the Landlord so reasonably require a guarantor or
guarantors reasonably acceptable to the Landlord shall join
in such deed of covenant to covenant with the Landlord
substantially in the same terms mutatis mutandis as clause 8
hereof
PROVIDED THAT the Landlord and the Tenant agree that the Landlord
may withhold its consent if any one or more of the following
circumstances exist in which case the Landlord shall not be
regarded as unreasonably withholding its consent:
(1) The proposed assignee is a company which is a member of the
same group (within the meaning of Section 42 of the Landlord
and Tenant Act 1954) as the Tenant unless the Tenant and the
proposed assignee become joint tenants
(2) The Landlord reasonably determines there is any subsisting
33
material breach of any of the Tenant's covenants and conditions
in this Lease
(3) The proposed assignee or any proposed guarantor for the proposed
assignee (other than any guarantor under an authorised guarantee
agreement) is a corporation registered in or an individual
resident in a jurisdiction in which a judgment obtained in the
Courts of England and Wales will not necessarily be enforced
without any re-examination of the merits of the case
(4) The proposed assignee is a person firm company or other body
corporate or entity which has the right to claim diplomatic
immunity or exemption in relation to the observance and performance
of the covenants and conditions contained in this Lease
(5) That if any consent of a superior landlord and/or mortgagee is
required to the assignment that consent has not been obtained
before the assignment
(6) The proposed assignee fails to demonstrate that it has a
satisfactory current trading record to enable it to take on the
liabilities under this Lease
(e) PERMITTED UNDERLETTING
(i) The Tenant shall not underlet the whole or part of the Demised
Premises or agree to underlet the whole or part of the Demised
34
Premises comprising one or more complete floors of the Demised
premises without the prior written consent of the Landlord such
consent not to be unreasonably withheld or delayed provided that
there shall not be more than two separate occupations of the
Demised Premises at any one time and provided further that all
underlettings of part of the Demised Premises shall have the
renewal provisions of the 1954 Act (as amended) excluded by Court
Order pursuant to Section 5 of the Law of Property Xxx 0000 and the
Tenant shall not underlet the whole or part of the Demised Premises
otherwise than by an underlease with provision for upwards only
review of the reserved rent as at each review date during the term
of the underlease in like manner (mutatis mutandis) as provided in
Clause 6 hereof and in accordance with sub-clause 3(17)(e)(iv)
hereof PROVIDED THAT the Tenant shall not underlet the whole or any
part of the Demised Premises at a fine or a premium and not
otherwise than at the Market Rent (as defined in Clause 6) or the
proportionate part of the Market Rent of the Demised Premises where
only part of the Demised Premises is underlet (such rent in all
cases to be approved by the Landlord such approval not to be
unreasonably withheld or delayed) and
(ii) any intended undertenant shall enter into a deed of covenant with
the Landlord in such form as the Landlord shall reasonably
require to observe and perform all the covenants and agreements on
the part of the tenant contained in the underlease and if the
Landlord so reasonably requires a guarantor or guarantors
reasonably acceptable to the Landlord
35
shall join in such deed of covenant to covenant with the Landlord
in substantially the same terms mutatis mutandis as clause 8 hereof
(iii) in any permitted mediate or immediate underlease the rent shall be
payable no more than one quarter in advance and
(iv) any such underlease shall in all respects be consistent with the
provisions of this Lease including in particular (but without
prejudice to the generality of the foregoing) provisions as to rent
review which shall follow the provisions of this Lease and which
require a review of the rent payable under this Lease to the Market
Rent in accordance with the provisions and at the date of review of
the rent payable under this Lease and
(v) At all times to enforce compliance with the covenants and
conditions contained in all underleases (whether mediate or
immediate) of the Demised Premises and not to waive or vary any of
the same without the prior written consent of the Landlord and not
without the consent of the Landlord to accept a surrender of any
underlease of the Demised Premises or agree any reviewed rent with
an undertenant until the rent on rent review has been agreed or
determined as between the Landlord and the Tenant pursuant to
Clause 6 hereof and
(vi) Any further dealings with the Demised Premises thereby demised
which are permitted shall be subject to the prior written consent
of the Landlord (such consent not to be unreasonably withheld or
delayed) to a permitted dealing
36
which would not result in a breach of any of the provisions of
this clause
(vii) Not upon a review of the rent reserved by an underlease of the
whole or any part of the Demised Premises to agree the amount of
any such reviewed rent without the prior consent of the Landlord
which consent shall not be unreasonably withheld or delayed
(viii) Without prejudice to paragraph 3(17)(e)(ii) the Tenant shall
procure that any intended undertenant covenants with the Landlord
not to assign the underlet premises without obtaining a deed of
covenant from the intended assignee in favour of the Landlord in
the same form (mutatis mutandis) as the deed referred to in
paragraph 3(17)(e)(ii) and if the Landlord so reasonably requires
one or more guarantors reasonably acceptable to the Landlord shall
join in such deed in favour of the Landlord guaranteeing the due
performance of all the obligations and liabilities of the intended
assignee the deed to be in substantially the same terms mutatis
mutandis as clause 8 hereof
(ix) In the case of an underlease of part of the Demised Premises the
form of the underlease shall be first approved by the Landlord
(such approval not to be unreasonably withheld or delayed) and such
form shall not demise any part of the structure or common parts of
the Building but shall contain provisions under which the
undertenant is liable to pay a fair proportion of the costs of
insuring repairing and redecoration
37
of the structure and common parts and all other services relating
to the Building which benefit such part of the Demised Premises
directly or indirectly and not to differ from the terms of this
Lease except insofar as reasonably necessary to make it applicable
to such underletting of part
(f) Notwithstanding the foregoing provisions of this sub-clause the Tenant may
without the consent of the Landlord share occupation of the whole or any
part of the Demised Premises with a company that is a member of the same
group as the Tenant within the meaning of Section 42 of the 1954 Act for so
long only as such company remains a member of the group provided that (1)
the relationship of Landlord and Tenant is not thereby created (2) that any
such company shall vacate the Demised Premises forthwith upon vacation by
the Tenant (3) written notice is given to the Landlord prior to such
company taking occupation of the Demised Premises or any part thereof
(g) Within twenty-one days of every assignment or transfer (whether by deed
will or otherwise) and every permitted underlease of the Demised Premises
or any part thereof and every other disposition or transmission or
devolution of the Demised Premises (including all Orders of Court Probates
and Letters of Administration) notice thereof shall be given to the
Landlord's Solicitors stating the date and short particulars thereof and
the names and addresses of every party thereto and at the same time a
certified copy of the deed document or instrument creating or evidencing
the same shall be produced (properly stamped if required to be stamped) to
the Landlord's Solicitors for registration (with an additional certified
copy thereof for retention by the Landlord) and a reasonable solicitor's
fee for such
38
registration shall be paid by the Tenant
(h) Within one month of the ascertainment of the yearly rent payable
under any underlease or remoter lease of the Demised Premises or
any part of it pursuant to the provisions in such deed for rent
review to give notice in writing to the Landlord of the yearly
rent so ascertained
(18) INFORMATION
Immediately on receiving a request for the same from the Landlord or its
agents (but not more than once a year) to give the following information to
the Landlord in writing:-
(a) full names and addresses of all persons in occupation of the
Demised Premises or any part of it
(b) the precise part of the Demised Premises which such persons occupy
(c) a true copy of the document or if none a written memorandum of the
agreement and parties to it whereby each such person is or claims
to be entitled to occupy any part of the Demised Premises
(d) full names and addresses of all persons entitled or claiming to be
entitled to an interest in the Demised Premises or any part of it
(whether at law or in equity)
(e) the precise part of the Demised Premises in which each such person
is or claims to be entitled to an interest
39
(f) a true copy of the document or if none a written memorandum of the
agreement and parties to it whereby each such person is or claims
to be entitled to an interest in the Demised Premises or any part
of it
(g) the name home address and home telephone number of at least two
keyholders of the Demised Premises
(19) ACQUISITION OF RIGHTS ENCROACHMENTS ETC.
(a) Neither the Tenant nor any underlessee shall effect authorise or
permit any encroachment upon or acquisition of any right easement
quasi-right quasi-easement or privilege adversely affecting the
Demised Premises or any closing or obstruction of the access of
light or air to any windows or openings of the Demised Premises nor
shall the Tenant or any underlessee give any acknowledgment to any
third party that the enjoyment of access of light or air thereto is
with the consent of such third party nor give any consideration to
any third party nor enter into any agreement with any third party
for the purpose of inducing or binding such third party to abstain
from obstructing the access of light or air thereto
(b) If any such encroachment or acquisition or closing or obstruction
shall be threatened or attempted to give notice thereof to the
Landlord as soon as the same comes to the knowledge of the Tenant
and upon request by the Landlord to take immediate steps (in
conjunction with the Landlord and other interested persons if the
Landlord shall so require) at the joint cost of the Landlord and
the Tenant to adopt all such lawful means and do all such lawful
things
40
as the Landlord may reasonably deem appropriate for preventing any
such encroachment or acquisition
(c) Not to stop up or obstruct any windows or light belonging to the
Demised Premises or to any other building belonging to the Landlord
nor permit any new window light opening doorway path drain or
encroachment or easement to be made into against or upon the
Demised Premises without the Landlord's consent and to give notice
to the Landlord of any such encroachment which shall be made or
attempted and which comes to the Tenant's notice and at the request
of the Landlord to adopt such means and take such steps at the
joint cost of the Landlord and the Tenant as may be reasonably
required by the Landlord to prevent the same
(20) MATTERS AFFECTING THE DEMISED PREMISES
(a) To observe and perform the agreements covenants and stipulations
contained or referred to in the Third Schedule hereto insofar as
the same are still subsisting and capable of being enforced against
the Demised Premises or the owner Landlord tenant or occupier
thereof and to keep the Landlord throughout the Term fully
indemnified against all actions proceedings costs claims demands
expenses and liability in any way relating thereto in so far as
they relate to the Demised Premises
(b) Not knowingly to do or permit or suffer any matter or thing which
may hinder or prevent the Landlord or its agents from observing and
performing all and singular the covenants conditions and agreements
on its part contained in this Lease
41
(21) RUBBISH
Not to allow rubbish of any description to accumulate on any part of the
Demised Premises but to place all refuse or rubbish tidily in proper
receptacles therefor provided by the Tenant on the refuse area shown
coloured yellow on Plan A in accordance with the right in that behalf
contained in Paragraph 4 of the First Schedule hereto and not to hang or
place or to allow to be hung or placed any articles or other goods of any
description outside the Demised Premises or the entrance door thereof
whether on the forecourt or otherwise or from the windows of the Demised
Premises nor expose outside or from the windows of the Demised Premises any
clothes articles or other goods of any description
(22) LOADING
Not to load or unload nor to permit or suffer to be loaded or unloaded any
vehicle unless the vehicle shall be in the unloading area (if any) provided
from time to time by the Landlord for that purpose and in accordance with
the regulations (if any) made by the Landlord in this respect
(23) CARPETS AND DECORATION
To clean repair replace and renew as often as the Landlord may
reasonably consider necessary the fitted carpets within the Demised
Premises and at the end or sooner determination of the term at the
Tenant's own cost to deliver up the Demised Premises with new good
quality carpets and the walls redecorated to a good standard
42
(24) APPOINTMENT OF NEW GUARANTOR
Within fourteen days of the death during the Term of the Surety (if any) or
if more than one any of them or of any surety hereunder or of any surety in
any underlease or of any such person becoming bankrupt or having a
bankruptcy petition presented against him or being a company passing a
resolution to wind up or entering into liquidation or having an
administrative receiver appointed or having an administration order made
against it to give notice of this to the Landlord and if so required by the
Landlord at the expense of the Tenant within twenty-eight days to procure
some other person acceptable to the Landlord to execute a guarantee in
respect of the Tenant's obligations contained in this Lease in the form set
out in clause 8
(25) APPLICATION FOR RELEASE
(a) The Tenant shall not unreasonably object to the release of the
Landlord or a former landlord from the Landlord's covenants in this
Lease to the extent (if any) as such covenants continue to bind the
Landlord assigning the reversion or a former landlord (as
appropriate) following an application made in accordance with
Section 8 of the Landlord and Tenant (Covenants) Xxx 0000 ("the
Act")
(b) If following a written notice from the Tenant objecting to such
release the Court makes a declaration that it is reasonable for the
Landlord or a former landlord to be released from the Landlord's
covenants in this Lease the Tenant shall indemnify the Landlord and
any former Landlord in respect of any loss damage costs and
expenses incurred or
43
sustained as a result of the Tenant's objection
(26) REGULATIONS
To observe and perform all regulations made by the Landlord in the
interests of good estate management applicable to the Estate a copy of
which in their form current at the date of this Lease has been given to
the Tenant
4. LANDLORD'S COVENANTS
The Landlord HEREBY COVENANTS with the Tenant as follows:-
(1) INSURANCE
(a) To insure and (unless such insurance shall become void or payment
of the insurance monies shall be refused in whole or in part by
reason of any act omission neglect or default by or on the part of
the Tenant or any underlessee or other person under the control of
the Tenant or any underlessee) to keep insured or to procure such
insurance (save as aforesaid) and to pay promptly all premiums for
insuring and keeping insured the Demised Premises in the full
reinstatement cost (whether or not with any other premises) against
loss or damage by the Insured Risks together with insurance against
architects' surveyors' and other professional advisers' fees at the
usual scales current for the time being and the cost of demolition
and site clearance consequent upon rebuilding or reinstatement and
VAT in respect of all such costs and works and a minimum of 3 years
loss of the rent first hereby reserved
44
(b) Subject to Clause 5(5) hereof to claim all monies due and to apply
all monies (except monies received in respect of loss of or damage
to any other premises or the fixtures and fittings therein or
liability to third parties or loss of rent) received by the
Landlord under or by virtue of such insurance and any monies
received from the Tenant pursuant to the Tenant's obligation
contained in Clause 3(9)(a) hereof in rebuilding or reinstating the
Demised Premises or such parts thereof as may have been damaged or
destroyed as expeditiously as possible (subject always to the
Landlord being able to obtain all necessary approvals consents
licences permits and permissions from any superior lessor or other
competent authority and all such materials and labour as may be
required for such rebuilding and reinstatement) making good any
deficiency in the insurance monies out of the Landlord's own
resources unless such deficiency arises due to the act or neglect
or default of the Tenant its servants agents licensees or
undertenants PROVIDED THAT if any damage or destruction shall
render the Demised Premises wholly or substantially unfit for
occupation and if the Demised Premises shall not have been
reinstated by the date 2 years nine months after the date of such
damage or destruction either the Landlord or the Tenant may by
giving to the other party three months prior notice in writing
determine this demise provided that any such notice shall cease to
have effect and the Term shall continue if the Demised Premises
shall have been reinstated by the third anniversary of the date of
damage or destruction and provided further that any such
determination shall be without prejudice to any claim by the
Landlord in respect of any antecedent breach of the Tenant's
covenants and conditions herein contained and in the event of
either the Landlord or the Tenant determining this Lease pursuant
to this proviso neither the Tenant
45
nor anyone claiming through or under the Tenant shall object to the
payment to the Landlord or any superior lessor of any part of the
moneys (including monies in respect of professional fees demolition
site clearance shoring up and loss of rent) payable under any
policy of insurance in respect of the Demised Premises or any part
thereof
(c) (i) To produce to the Tenant on request (such request not to be
made more often than once in each calendar year) a copy of
the insurance policy and the last premium renewal receipt or
reasonable evidence of the terms of the policy and that the
last premium has been paid; and
(ii) To use its reasonable endeavors to procure that the interest
of the Tenant is noted or endorsed on the said insurance
policy or policies at all times
(d) The Landlords obligation to insure under clause 4(1)(a) shall be
limited to and subject to any excess exclusion or limitation or
other terms and conditions imposed by insurers
(e) The Landlord shall not be obliged to insure under clause 4(1)(a) if
and to the extent that insurance is not regularly available in the
London insurance market on reasonable commercial terms provided
that it shall notify the Tenant forthwith
(f) The Landlord may but shall not be obliged to insure against loss of
rent and if the Landlord is itself an insurance company it may
self-insure in which case it shall be deemed to be doing so at its
usual rates and on its standard terms
46
(2) QUIET POSSESSION
That the Tenant paying the rents hereby reserved and all other monies
payable by the Tenant under these Presents and observing and performing
the several covenants and agreements on the Tenant's part and the
conditions and stipulations herein contained shall and may peaceably hold
and enjoy the Demised Premises during the Term according to these
Presents without any lawful interruption by the Landlord or any person
lawfully claiming through under or in trust for the Landlord
(3) PROVISION OF SERVICES
Subject to the payment of the rents hereby reserved the Landlord will
provide the Estate Services save as prevented by Insured Risks or acts
beyond its reasonable control provided that it shall use all reasonable
endeavours to restore the Estate Services in question as soon as
reasonably practicable
5. PROVISOS
PROVIDED ALWAYS AND IT IS HEREBY EXPRESSLY AGREED as follows: -
(1) Whenever the rent (whether formally or legally demanded or not) shall
remain unpaid after becoming due and payable or any other monies which
may become payable hereunder by the Tenant to the Landlord or any part
thereof shall remain unpaid 7 days after becoming due and payable then
the amount thereof or the balance for the time being unpaid shall
(without prejudice to the Landlord's right of re-entry hereinafter
contained or any
47
other right or remedy of the Landlord) from the due date for payment
thereof and until the same is duly paid bear and carry interest (as well
after as before any judgment) at the rate of four per centum per annum
above the base rate for the time being of National Westminster Bank PLC
or (in the event of such rate ceasing to be published) at such equivalent
rate as the Landlord shall notify to the Tenant for the whole period from
the date upon which such sum ought to have been paid until the date of
payment Provided that if any such rent or payment of other monies as
aforesaid shall be declined by the Landlord so as not to waive any breach
of covenant the same shall be payable with interest thereon at the rate
aforesaid from the date the payment became due to the date upon which
payment is accepted by the Landlord AND the Tenant accordingly HEREBY
COVENANTS with the Landlord that in every such case the Tenant will pay
such interest thereon to the Landlord in addition to the rents and other
monies as aforesaid (as well after as before any judgment) at the
aforesaid rate
(2) If the rents hereby reserved or any part thereof shall remain unpaid for
fourteen days after becoming payable (whether formally demanded or not)
or if the Tenant or the Surety being a company unregistered company or
corporation shall be deemed to be unable to pay its debts within the
meaning of Section 123 of the Insolvency Xxx 0000 ("xxx 0000 Xxx") or
shall make a voluntary arrangement as referred to in Part I of the 1986
Act or shall xxxx a petition for an administration order presented under
Part II of the 1986 Act or shall go into liquidation as defined in
Section 247(2) of the 1986 Act (other than a voluntary winding-up solely
for the purpose of amalgamation or reconstruction while solvent) or shall
have a receiver or manager (including an administrative receiver)
appointed of all or any part of its assets or undertaking whether under
Part III of the 1986 Act or otherwise or if a provisional liquidator is
appointed under Section 135 of the
48
1986 Act or if a proposal is made for a scheme of arrangement under
Section 425 of the Companies Xxx 0000 or if the Tenant or the Surety or
if more than one any of them being an individual an application is made
for an interim order or a proposal is made for a voluntary arrangement
under Part VIII of the 1986 Act or a Bankruptcy Petition is presented to
the Court or his circumstances are such that a Bankruptcy Petition could
be presented under Part IX of the 1986 Act or shall make any other
assignment for the benefit of or enter into any other arrangement with
his creditors or if the Tenant or the Surety or if more than one any of
them shall suffer any distress or execution to be levied on its goods at
the Demised Premises or if any covenant or condition on the part of the
Tenant or the Surety herein contained shall not be performed or observed
then and in any of the said events it shall be lawful for the Landlord at
any time thereafter to re-enter upon the Demised Premises or any part
thereof in the name of the whole and thereupon this demise shall
absolutely determine but without prejudice to any right of action or
remedy of the Landlord against the Tenant or the Surety in respect of any
arrears of rent or any breach of covenant or condition or the Tenant or
the Surety against the Landlord for breach of covenant
(3) If the Demised Premises or any material part thereof shall at any time or
times be destroyed or damaged by any of the Insured Risks so as to be
unfit for occupation and use then and in every such case (save as
provided in Clause 4(1)(a) hereof) the principal rent and the Service
Rent hereby reserved or a fair and just proportion thereof according to
the nature and extent of the damage sustained (as agreed between the
Landlord and the Tenant in writing within one month of such destruction
or damage) shall be suspended and cease to be payable until the Demised
Premises have been rebuilt or reinstated and made fit for occupation and
use or until the expiration of 3 years from the date of the damage or
destruction if earlier
49
and failing such agreement or in case any dispute shall arise as to the
amount of such suspension and or such period the same shall be determined
by an independent Surveyor who shall act as an arbitrator in accordance
with the Arbitration Xxx 0000
(4) Notwithstanding the acceptance of or demand for rent or other monies
payable under this Lease and these Presents by or on behalf of the
Landlord with knowledge of a breach of any of the covenants on the part
of the Tenant in this Lease the Landlord's right to forfeit this Lease on
the ground of such breach shall remain in force and the Tenant shall not
in any proceedings for forfeiture be entitled to rely upon any such
acceptance or demand as a defence
(5) In any rebuilding or reinstatement of the Demised Premises following
damage or destruction by any of the Insured Risks the Landlord shall not
be obliged to lay out insurance moneys in rebuilding or reinstatement in
accordance with the previous sections elevations and specifications of
the Demised Premises but it shall be sufficient if they are restored so
as to provide the Tenant with premises reasonably equivalent to the
Demised Premises and thereafter all the covenants and conditions of this
deed shall apply to such accommodation mutatis mutandis as they applied
to the Demised Premises
(6) 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
lessee of the Landlord in respect of any property not comprised in this
Lease
(7) If any dispute arises between the Tenant and the Landlord's tenants or
50
occupiers of any adjoining or neighboring land or premises as to any
easement right or privilege in connection with the use of the Demised
Premises and the adjoining or neighboring land or premises or as to the
party or other walls separating the Demised Premises from the adjoining
or neighboring land or premises or as to the amount of any contribution
towards the expenses or services used in common with any other property
it shall be decided by the Landlord's surveyor or in such manner as the
Landlord's surveyor shall direct
(8) The operation of Section 62 of the Law of Property Xxx 0000 shall be
excluded from this Lease and the only rights granted to the Tenant are
those expressly set out in this Lease and the Tenant shall not by virtue
of this Lease be deemed to have acquired or be entitled to and the Tenant
shall not during the Term acquire or become entitled by any means
whatsoever to any easement from or over or affecting any other land or
premises now or at any time hereafter belonging to the Landlord and not
comprised in this Lease.
(9) The Landlord shall not be responsible to the Tenant or to anyone at the
Demised Premises expressly or by implication with the Tenant's authority
for any accident happening or injury suffered or for any damage to or
loss of any chattel sustained in the Demised Premises
(10) This Lease embodies the entire understanding of the parties relating to
the Demised Premises or to any of the matters dealt with by any of the
provisions of this Lease
(11) 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
51
behalf of the Landlord except any such statement or representation that
is expressly set out in this Lease or in written replies from the
Landlord's solicitors to enquiries raised by the Tenant's solicitors
(12) Whilst the Landlord is a limited company or other corporation all
licences consents approvals and notices required or permitted to be given
by the Landlord shall be sufficiently given if given under the hand of a
director or the secretary or other duly authorised officer of the
Landlord or by the surveyor on behalf of the Landlord
(13) If after the Tenant has vacated the Demised Premises on the expiry of the
Term any property of the Tenant remains in or on the Demised Premises and
the Tenant fails to remove it within twenty one days after being
requested in writing by the Landlord so to do or after using its best
endeavours the Landlord is unable to make such a request to the Tenant
within fourteen days of first attempting so to do:-
(a) the Landlord may as the agent of the Tenant sell such property
provided that the Tenant will indemnify the Landlord against any
liability incurred by the Landlord to any third party whose
property shall have been sold by the Landlord in the bona fide
mistaken belief (which shall be presumed unless the contrary be
proved) that such property belonged to the Tenant
(b) if the Landlord having made reasonable efforts is unable to locate
the Tenant the Landlord shall be entitled to retain the said
proceeds of sale absolutely unless the Tenant shall claim the same
within six months of the date upon which the Tenant vacated the
Demised Premises and
52
(c) the Tenant shall indemnify the Landlord against any damage
occasioned to the Demised Premises or any adjoining or neighboring
land or premises and any action claims proceedings costs expenses
and demands made against the Landlord caused by or related to the
presence of the Tenant's property in or on the Demised Premises
(14) Except where any statutory provision prohibits the Tenant's right to
compensation being reduced or excluded by agreement the Tenant shall not
be entitled to claim from the Landlord on quitting the Demised Premises
any compensation under the 1954 Act
(15) The Landlord shall not in any event be liable to the Tenant in respect of
any failure of the Landlord to perform any of its obligations to the
Tenant hereunder in respect of the Estate Services (other than insurance)
whether expressed or implied unless and until the Tenant has notified the
Landlord of the facts giving rise to the failure and the Landlord has
failed within a reasonable length of time to remedy the same and then in
such case the Landlord shall be liable to compensate the Tenant only for
loss or damage sustained by the Tenant after such reasonable time has
lapsed
(16) This Lease is granted without prejudice to the provisions of any previous
lease under which the Tenant has hitherto held the Demised Premises or
any part thereof or to the provisions of any licence for alterations or
works granted pursuant thereto which last mentioned provisions shall (so
far as remaining to be performed and observed) be read and construed as
if contained in a licence supplemental to this Lease and as if any
reference to the term granted by such Lease were a reference to the Term
granted by this
53
Lease
(17) The parties to this Lease hereby agree and declare that:
(a) this is a new lease for the purposes of the Act
(b) any provisions in this Lease which are void pursuant to Section 25
of the Act shall be severed from all remaining provisions and such
remaining provisions shall be preserved
(c) to the extent that any provision in this Lease extends beyond the
limitations set by the said Section 25 of the Act but if it did not
so extend it would remain unaffected by the said Section 25 the
provisions shall be deemed to be varied so as not to extend beyond
the said limitations
(18) In the event of the Landlord (at the request of the Tenant) granting any
concession as a result of which the Tenant is entitled to defer the
payment of any monies due then for all purposes in connection with this
Lease (and in particular in relation to Section 17 of the Act such monies
shall be deemed to fall due on the subsequent date agreed between the
Landlord and Tenant pursuant to the concession in lieu of the earlier
date
6. RENT REVIEW
(1) With effect from each Review Date the rent first hereinbefore reserved
shall be the amount payable (but for any abatement of rent) immediately
prior to that Review Date or (if greater) the Market Rent as agreed or
determined pursuant to this Clause 6
54
(2) The expression "the Market Rent" means the annual rack rent exclusive of
all outgoings which might reasonably be obtained in the open market
without the payment of a premium or a fine by a willing landlord from a
willing tenant for a lease of the whole of the Demised Premises with
vacant possession and fully fitted out and ready for occupation at the
commencement of the term for a term equal to the residue of the Term
remaining on the relevant Review Date or 5 years (whichever is the longer
period) (but commencing on the Review Date) upon the following
assumptions that:-
(A) all the provisions of this Lease on the part of the Tenant have
been duly observed and performed and on the assumption that the
user permitted by this Lease of all parts of the Demised Premises
complies with the Planning Acts
(B) on the relevant Review Date no damage to or destruction of the
Demised Premises or its services nor any damage to or destruction
of any part of the Demised Premises or with anything else in
respect of which the Tenant enjoys rights has occurred
(C) the Demised Premises are fit for immediate occupation and use and
that no work has been carried out on the Demised Premises by the
Tenant or its underlessees or their predecessors in title which has
diminished the rental value of the Demised Premises
(D) the Demised Premises may be used for all purposes falling within
the same Use Class or Use Classes under the Town and Country
Planning (Use Classes) Order 1987 (to which Clause 1(2)(iii) hereof
shall not
55
apply) as the use permitted by these Presents and that all other
licences consents and permissions required to implement such use
have been obtained
(E) there has been a reasonable period in which to negotiate the terms
of the letting taking into account the nature of the Demised
Premises and the state of the market
(F) that the Demised Premises have been carpeted and decorated at the
cost of the Landlord to a high standard
there being disregarded (if otherwise applicable) any effect on rental
value by reason of:-
(i) the fact that the Tenant its underlessees or their respective
predecessors in title have been in occupation of the Demised
Premises and
(ii) any goodwill attached to the Demised Premises by reason of the
carrying-on thereat of the business of the Tenant or its
underlessees or their predecessors in title in their respective
businesses and
(iii) all improvements authorised by the Landlord or made by the Tenant
or its underlessees or their respective predecessors in title in
accordance with the terms of this Lease otherwise than at the cost
of or in pursuance of an obligation to the Landlord contained
herein or one imposed by the terms of this Lease and any such works
undertaken either (a) by the Tenant its underlessees or their
respective predecessors in title during any period of occupation
prior
56
to the grant of this Lease or any previous lease arising out of an
agreement to grant such term or (b) by any lessee or underlessee of
the Demised Premises before the commencement of the Term hereby
granted so long as the Landlord or its predecessor in title has not
had vacant possession of the relevant part of the Demised Premises
since the improvement was carried out
(iv) (so far as may be permitted by law) all restrictions whatsoever
relating to rent or its recoverability and all provisions relating
to any method of determination of rent contained in any enactment
and such lease shall in all other respects contain the same terms and
conditions mutatis mutandis (except as to the amount of rent but
including similar provisions for review thereof as are contained in this
Clause 6) as this present Lease
(3) The Market Rent shall be determined by agreement between the Landlord and
the Tenant but if by the date which is three months before the relevant
Review Date they shall not have agreed the same the Market Rent shall be
determined by an independent chartered surveyor of recognised standing
being a member of a leading firm of surveyors having been in practice
continuously for at least ten years in England immediately prior to the
relevant Review Date and having substantial recent experience in valuing
premises of a kind and character similar to the Demised Premises to be
agreed upon in writing by the Landlord and the Tenant or in default of
such agreement by the date which is one month before the relevant Review
Date to be nominated by the President or other officer duly authorised
for that purpose of the Royal Institution of Chartered Surveyors on the
application of either the Landlord or the Tenant such surveyor to act as
an arbitrator in
57
accordance with the Arbitration Xxx 0000 and the costs of such
determination shall be in the award of such surveyor (the Surveyor)
(4) If the Surveyor shall fail to determine the Market Rent in the manner
hereinbefore provided within four months of his appointment or if he
shall relinquish his appointment or die or if it shall become apparent
that for any reason he will be unable to complete his duties hereunder
within the said period of four months then the Landlord and the Tenant
may agree upon or either of them may apply to the said President or other
officer for a substitute to be appointed in his place which procedure may
be repeated as many times as necessary
(5) In the event of the Landlord and the Tenant not having reached agreement
or the Surveyor's award not having been published or the Surveyor or the
Landlord or the Tenant making application to the Court whether before or
after such publication and such application not having been finally
determined by the relevant Review Date for any reason whatever then in
respect of the period of time ("the interval") between the relevant
Review Date and ending on the date on which agreement is reached or such
award is published or such application is finally determined the Tenant
shall pay to the Landlord in the manner provided in this Lease the rent
payable immediately prior to the relevant Review Date ("the Current
Rent") PROVIDED THAT at the expiration of the interval there shall be due
as a debt payable by the Tenant to the Landlord on demand the amount by
which the Market Rent agreed upon by the Landlord and the Tenant or
determined by the said surveyor or the Court as the case may be exceeds
the Current Rent together with interest on such amount at two per cent
over the base rate of National Westminster Bank Plc or (in the event of
such rate ceasing to be published) at such comparable rate as the
Landlord shall notify
58
to the Tenant but in respect of both the said excess and the said
interest on it duly apportioned on a daily basis in respect of the
interval
(6) If at any time the Tenant shall be obliged legally or otherwise to comply
with any enactment (which expression shall include any Act of Parliament
now or hereafter in force and any instrument regulation or order made
thereunder or deriving validity therefrom) dealing with the control of
rent and which shall restrict or modify the Landlord's right to increase
the rent in accordance with the foregoing provisions of this Clause or
which shall restrict the right of the Landlord to demand or accept
payment of the full amount of the yearly rent for the time being payable
hereunder then the Landlord shall on each occasion that any such
enactment is removed relaxed or modified be entitled on giving not less
that one month's notice in writing to the Tenant expiring after the date
of such removal relaxation or modification to introduce a rent review
date which shall be the date of expiration of such notice and from and
after such review date until the next Review Date the yearly rent then
payable hereunder shall be such as shall be agreed or determined in
accordance (mutatis mutandis) with the foregoing provisions of this
Clause 6 Provided that and for the avoidance of doubt it is hereby
declared that notwithstanding the date of a review as hereinbefore
provided the Market Rent under this present provision shall be calculated
as at the Review Date immediately preceding the date of the Landlord's
notice
(7) The revised rent agreed or determined pursuant to this Clause 6 shall be
endorsed by way of memorandum on this Lease and on the counterpart
thereof and signed by or on behalf of the Landlord and the Tenant
(8) In this clause time shall not be of the essence
59
7. SERVICE OF NOTICES AND JURISDICTION
(1) THESE Presents shall incorporate the provisions as to notices contained
in Section 196 of the Law of Property Xxx 0000 as amended by the Recorded
Delivery Service Xxx 0000 except that Section 196 shall be deemed to be
amended as follows:-
(a) the final words of Section 196(4) "and that service... be
delivered" shall be deleted and there shall be substituted "...and
that service shall be deemed to be made on the third working day
after the registered letter has been posted "working day" meaning
any day from Monday to Friday (inclusive) other than Christmas Day,
Good Friday and any statutory bank holiday"
(b) any notice or document shall also be sufficiently served on a party
if served on solicitors who have acted for that party in relation
to this Lease or the Demised Premises at any time within the year
preceding the service of the notice or document or who have been
appointed by Clause 7(2)(c) or (d) below
(c) any notice or document shall also be sufficiently served if sent by
telex or fax to the party to be served (or its Solicitors where
paragraph (b) applies) and service in such case shall be deemed to
be made on the day of transmission if transmitted before 4 pm on a
working day but otherwise on the next following working day
(2) (a) The Landlord Tenant and the Surety respectively acknowledge and
declare that this Lease and the rights and obligations of the
Landlord Tenant and the Surety hereunder are governed by English
law
60
(b) The Landlord Tenant and the Surety irrevocably and unconditionally
agree that any proceedings in relation to this Lease may and shall
be brought in the English Courts and submit to the jurisdiction of
the English Courts in respect of any such proceedings
8. GUARANTEE PROVISION
(1) The Surety (if any) covenants with the Landlord as primary obligor and
not merely by way of guarantee (for the benefit of the Landlord and of
the person in whom from time to time the reversion immediately expectant
upon the determination of the Term is vested without the need for any
express assignment) that
(a) during such period as the Tenant is bound by the Lease covenants
(including any period in respect of which the Tenant is liable to
perform the Lease covenants pursuant to any authorised guarantee
agreement entered into by the Tenant) the Tenant shall punctually
pay the rents hereby reserved and perform the covenants and other
provisions of the Lease and in case of default the Surety will pay
the rents hereby reserved and perform the covenants and provisions
in respect of which the Tenant is in default and make good to the
Landlord on demand and indemnify the Landlord against all losses
damages costs and expenses thereby arising or incurred by the
Landlord
(b) the liability of the Surety under Clause 8(1)(a) hereof shall not
be affected in any way by:
61
(i) any neglect or forbearance of the Landlord in enforcing
payment of the rents hereby reserved or observance or
performance of the covenants and provisions of the Lease
(ii) any time or indulgence given to the Tenant by the Landlord
(iii) any refusal by the Landlord to accept rent from the Tenant
following a breach of covenant by the Tenant
(iv) any agreement with the Tenant any licence or consent granted
to the Tenant or any variation in the terms of the Lease
(v) the death of the Tenant (if an individual) or the
dissolution of the Tenant (if a company)
(vi) a surrender of part of the Demised Premises except that the
Surety will have no liability in relation to the surrendered
part in respect of any period following the date of
surrender
(vii) any other act matter or thing apart from the express release
in writing of the Surety
(c) if during the Term the Tenant (being a company) enters into
liquidation or (being an individual) becomes bankrupt and the
liquidator or the trustee in bankruptcy disclaims the Lease or if
during the Term the Tenant (being a company) is dissolved or ceases
to exist or is struck off the Register of Companies the Surety
shall upon written notice from the Landlord given within four
months after the date of disclaimer or dissolution or ceasing to
exist accept a
62
new lease of the Demised Premises for a term equal to the residue
then remaining unexpired of the term hereby demised at the rents
then being paid under this Lease and otherwise subject to the same
covenants and provisions as in this Lease (without however
requiring any other person to act as surety) such new lease to take
effect from the date of disclaimer or dissolution or ceasing to
exist and to be granted at the cost of the Surety who shall execute
and deliver to the Landlord a counterpart of it
(d) if this Lease is disclaimed or the Tenant (being a company) is
dissolved or ceases to exist and for any reason the Landlord does
not require the Surety to accept a new lease pursuant to Clause
8(1)(c) hereof the Surety shall pay to the Landlord on demand an
amount equal to the difference between any money received by the
Landlord for the use or occupation of the Demised Premises and the
rents (if higher) which would have been payable had the Lease not
been disclaimed or the dissolution or ceasing to exist not occurred
for the period commencing with the date of disclaimer or
dissolution or ceasing to exist and ending upon the date nine
months after the date of disclaimer or dissolution or ceasing to
exist or (if earlier) the date upon which the Demised Premises are
re-let
(e) for the purposes of this clause references to the Tenant are to the
Tenant in relation to whom the Surety's guarantee is given but not
to a lawful assignee of that Tenant
9. SERVICE CHARGE
(1) The Landlord shall as soon as convenient after each Account Date prepare
63
an account showing the Estate Service Expenditure for the Service Period
ended on that Account Date and containing a fair summary of the
expenditure referred to but giving credit for any sums payable to the
Landlord from any owner or occupier of adjoining land towards the cost of
provision of Estate Services and upon the account being certified by the
Landlord's managing agents it shall be conclusive evidence for the
purposes of this Lease of all matters of fact referred to except in case
of manifest error
(2) The Tenant shall pay the Landlord on account of Service Rent the
Provisional Sum in relation to each Service Period the first payment
(being a proportionate sum in respect of the period commencing on the
Possession Date and ending immediately before the quarter day next after
the date hereof) to be made on the date hereof and the subsequent
payments to be made by equal installments in advance on the usual quarter
days
(3) If the Service Rent for any Service Period:-
(a) exceeds the Provisional Sum for that Service Period the excess
shall be due to the Landlord on demand; or
(b) is less than the Provisional Sum for that Service Period the
overpayment shall be credited to the Tenant against subsequent
payments on account of Service Rent until the overpayment is
balanced or following the expiry of the Term shall be repaid to the
Tenant
(4) In respect of the Service Rent the relevant proportion applicable to the
Demised Premises shall be calculated primarily on a comparison at any
relevant time of
64
(a) the net internal floor area as defined in the Code of Measuring
Practice 4th edition RICS\ISVA 1993 of the buildings on the Demised
Premises and
(b) the aggregate net internal floor area of the buildings on the
Estate
or such other method of calculation as the Landlord shall adopt and
notify to the Tenant in writing provided that if the Tenant objects to
such alternative method of calculation the matter shall be referred to an
independent expert jointly appointed by the Landlord and the Tenant or
failing agreement as to his appointment by the President or next
available officer of the Royal Institution of Chartered Surveyors and if
it shall appear that for whatever reason such expert shall be unable or
unwilling to give his decision within one month of his appointment then
either the Landlord or the Tenant may apply to the said President for
another expert to be appointed in his place and this procedure shall be
repeated as many times as shall be required and the costs of the expert
and of his appointment shall form part of the Service Expenditure
(5) The Tenant is entitled to inspect the service charge records and vouchers
and take copies thereof at its cost once a year after the service charge
accounts have been certified within one month of the Tenant receiving
such certified accounts
10. AGREEMENT FOR LEASE
It is hereby certified that there is no Agreement for Lease to which this
Lease gives effect
65
IN WITNESS whereof the Landlord and the Tenant have executed this Deed the
day and year first before written
THE FIRST SCHEDULE
RIGHTS GRANTED
1. The right for the Tenant and its underlessees and occupiers for the time
being of the Demised Premises and their respective servants agents and
visitors in common with the Landlord and all others authorised by the
Landlord and all other persons so entitled to the free and uninterrupted
passage of water soil electricity gas telephone and other services and
supplies to and from the Demised Premises through the Conducting Media in
on or under the Estate and serving the Demised Premises
2. The right of way with or without vehicles at all times and for all proper
purposes in connection with the Tenant's use and enjoyment of the Demised
Premises over the estate roadway shown coloured xxxxx on the Plan
3. The right of entry upon not less than 48 hours prior written notice (save
in case of emergency) onto the adjoining or neighboring land or premises
forming part of the Estate with or without contractors plant materials
and equipment to carry out works repairs and alterations to the Demised
Premises or the Conducting Media exclusively serving the same insofar as
such works cannot be conveniently carried out without such entry the
Tenant or the person exercising such rights making good all damage caused
and causing as little inconvenience and disturbance as possible
4. The right to place a paladin on the refuse area shown coloured yellow on
66
Plan A subject to the Tenant complying with clause 3(21) hereof and the
Regulations relating thereto
THE SECOND SCHEDULE
EXCEPTIONS AND RESERVATIONS OUT OF THE DEMISE
The following rights and easements are excepted and reserved out of the Demised
Premises unto the Landlord and the owners and occupiers of the Estate and any
adjoining or neighboring land or premises and all other persons authorised by
the Landlord or having the like rights and easements
1. The free and uninterrupted passage of water soil electricity gas
telephone and other services and supplies to and from the Estate and/or
the adjoining or neighboring land or premises through the Conducting
Media serving the Demised Premises and the Estate and/or such adjoining
or neighboring land or premises now laid or during the Term to be laid in
on under or passing through the Demised Premises
2. The right for the Landlord and all authorised persons at all reasonable
times upon 48 hours prior notice (except in the case of emergency) to
enter into and upon the Demised Premises with or without servants
contractors agents plant and equipment for the purposes of assessing the
state and condition thereof and/or for the purpose of:
(a) surveying measuring or valuing the Demised Premises
(b) reading electricity water and other check meters installed within
the Demised Premises
67
(c) for the preparation of a schedule of fixtures and fittings in or on
the Demised Premises
(d) maintaining renewing cleaning repairing or rebuilding any adjoining
or neighbouring land or premises in so far as such works cannot be
conveniently carried out without entering upon the Demised Premises
(e) remedying any breach of covenant by the Tenant after failure by the
Tenant to do so in accordance with the provisions of this Lease
(f) obtaining access to and egress from the electricity substation
shown coloured purple on Plan B
the Landlord or all persons exercising such rights making good all
physical damage thereby occasioned to the Demised Premises without
liability to pay any compensation to the Tenant
3. The right to build rebuild or execute any other works or alterations or
consent to any person building rebuilding or executing any other works or
alterations upon any adjoining or neighbouring land or premises
notwithstanding that the access of light or air to the Demised Premises
may be thereby restricted or interfered with including the right to erect
or construct any buildings on any adjoining or neighboring land or
premises the person or persons exercising such right making good all
physical damage thereby occasioned in such manner as the Landlord or the
person or persons exercising such right may think fit without any
compensation or damages being payable to the Tenant and without the
Tenant being entitled to make any claim or commence any proceedings in
respect thereof
68
4. All rights of light air and other easements and rights (but without
prejudice to those expressly hereinbefore granted to the Tenant) now or
hereafter belonging to or enjoyed by the Demised Premises from or over
any adjoining or neighboring land or premises
5. The right of support shelter and protection and all other easements and
rights now or hereafter belonging to or enjoyed by all adjoining or
neighboring land or premises (if any)
6. The right at any time after giving not less than forty-eight hours'
notice (except in emergency) to enter and remain upon the Demised
Premises for the purpose of complying with the Landlord's covenants
herein contained and for the purpose of constructing repairing
maintaining altering cleansing examining or testing the Conducting Media
serving any adjoining or neighbouring land or premises the Landlord or
the person or persons exercising such right making good any physical
damage thereby caused to the Demised Premises but without liability to
pay any compensation to the Tenant
THE THIRD SCHEDULE
ENCUMBRANCES
69
1. All matters contained or referred to in the Property and Charges
Registers of Title Numbers BM230909 and BM230905 as at the date hereof
other than financial charges
2. The covenants agreements stipulations rights exceptions and reservations
in a Deed of Exchange dated the 24th day of July 1997 made between the
Landlord (1) and Vishay Components (UK) Limited (2)
SIGNED as a Deed by COMLAND )
INDUSTRIAL AND COMMERCIAL )
PROPERTIES LIMITED) )
acting by [a Director and its )
Secretary] [two Directors] )
DIRECTOR: X. X. Xxxxxx
DIRECTOR/SECRETARY: X. Xxxxx
DATED: 12th August 1998
COMLAND INDUSTRIAL AND COMMERCIAL
PROPERTIES LIMITED (1)
to
INSIGNIA SOLUTIONS PLC (2)
LEASE OF
SATURN HOUSE MERCURY CENTRE
WYCOMBE LANE WOOBURN GREEN
HIGH WYCOMBE BUCKINGHAMSHIRE
[MANCHES LOGO]
Manches & Co 0 Xxxxxxxxx Xxxxxx Xxxxxx XX0 0XX
Index to Clauses Clause Page
---------------- ------ ----
1- INTERPRETATION 1
2- THE DEMISE 10
3- TENANT'S COVENANTS 12
Main Covenants
Alienation 3(17) 29
Alterations 3(11) 25
Rent 3(1) 12
Repair 3(3) 14
User 3(10) 24
4- LANDLORD'S COVENANTS 43
5- PROVISOS 46
6- RENT REVIEW 53
7- SERVICE OF NOTICE 59
8- GUARANTEE PROVISION 60
9- SERVICE CHARGE 63
THE FIRST SCHEDULE - Rights granted to Tenant 65
THE SECOND SCHEDULE - Exceptions and Reservations 66
THE THIRD SCHEDULE - Encumbrances 68
THIS LEASE is made the 12th day of August One thousand nine hundred and
ninety eight
BETWEEN
(1) COMLAND INDUSTRIAL AND COMMERCIAL PROPERTIES LIMITED (Company
Registration Number 2126351) whose registered office is at Riverside
House Riverside Holtspur Lane Xxxxxxx Xxxxx Xxxx Xxxxxxx Xxxxxxxxxxxxxxx
XX00 0XX ("the Landlord")
(2) INSIGNIA SOLUTIONS Plc (Company Registration Number 01961960)
whose registered office is at Xxxxxxxxxx Xxxxx Xxxxxx Xxxx Xxxx Xxxxxxx
Xxxxxxxxxxxxxxx XX00 0XX ("the Tenant")
WITNESSETH as follows:-
1. INTERPRETATION
(1) In these Presents where the context so admits the following expressions
shall have the following meanings:-
(i) "the 1954 Act" means The Landlord and Xxxxxx Xxx 0000
(ii) "Account Date" means 31st December in every year of the Term or
such other date as the Landlord may from time to time nominate
(iii) "adjoining or neighboring land or premises" includes any
adjoining or neighboring land or premises whether or not
belonging to the Landlord
(iv) "Building" means any building from time to time on the Demised
[MAP]
[MAP]
2
Premises
(v) "Business Day" means a day (other than a Saturday or a Sunday)
on which banks are generally open in London for normal business
(vi) "Clearing Bank" means a bank which is a member of CHAPS and Town
Clearing Company Limited
(vii) "company" means a body corporate wheresoever incorporated
(viii) "Conducting Media" means tanks pipes cables wires lights and
light-fittings meters radiators drains sewers gutters and other
things (whether or not of a like nature) for the supply of
electricity telephone gas water soil and other services and
supplies
(ix) the Demised Premises" means ALL THAT property known as Saturn
House The Mercury Centre Wycombe Lane Wooburn Green High Wycombe
Buckinghamshire forming part of the Estate and shown for the
purposes of identification only edged red on Plan A and each and
every part thereof including without prejudice to the foregoing
the Building and all entrances entrance-halls plant rooms
heating apparatus and other apparatus stairs and passageways and
the accessways yards open areas and the Conducting Media within
or exclusively serving the Demised Premises together with the
Landlord's fixtures and fittings from time to time therein and
each and every part thereof together with all alterations
additions and improvements to the Demised Premises
(x) "Estate" means the Landlord's estate of which the Demised Premises
3
form part known as The Mercury Centre Wycombe Lane Wooburn Green
High Wycombe Buckinghamshire shown verged blue on Plan B
together with such additional land or excluding such land of
lesser area (but including the Demised Premises and the land
over which it enjoys rights granted by this Lease) as the
Landlord may from time to time specify and together with all
buildings fixtures or structures whatsoever from time to time
thereon
(xi) "Estate Services" means the provision and carrying out by or on
behalf of the Landlord of such services as in the opinion of the
Landlord are:-
(a) necessary for the maintenance repair upkeep renewal
insurance security management cleanliness renewal and
replacement of items of plant equipment Conducting Media
landscaping roadways pavements forecourt car parks and/or
common areas and common facilities forming part of the
Estate and forming part of the land shown hatched black on
Plan B; or
(b) for the benefit of tenants of the Estate; or
(c) otherwise in keeping with the principles of good estate
management of the Estate
and the Landlord may from time to time withhold add to or extend
and vary or make any alteration in the nature of matters
previously performed as Estate Services if the Landlord
considers it necessary or in the interests of good estate
management
(xii) "Estate Service Expenditure" means all expenditure incurred by the
4
Landlord or which the Landlord reasonably anticipates is likely to be
incurred during the Term in providing all or any of the Estate
Services including (without prejudice to the generality of the
foregoing):-
(a) the cost of repairing resurfacing cleaning lighting maintaining
renewing replacing and improving the estate roads serving the Estate
and the forecourt car parking areas loading bays landscaped areas
boundary walls fences xxxxxx xxxxx entrances and signs now or at any
time during the Term constructed on the Estate including any drains
sewers pipes cables gutters inspection xxxxxxxx or any other services
or fittings relating thereto over in or under the Estate
(b) the cost of retaining and providing the services of all staff
necessary for the efficient maintenance and management of the Estate
(c) the cost of maintaining proper security in respect of the Estate
both during and outside normal working hours and at weekends
(d) the cost of the maintenance replacement renewal and improvement of
the drainage and sewerage system serving the Estate
(e) the cost of and incidental to compliance by the Landlord with every
notice regulation or order of any competent local or other authority
in relation to the Estate or its appurtenances
(f) (i) all reasonable fees charges expenses and commissions properly
incurred in the administration and management of the Estate or
payable to any solicitor accountant surveyor valuer agent or
architect or any of them whom the Landlord may from time to
time employ in connection with the management or maintenance
of the Estate including the cost of preparing or causing to be
prepared statements of the said costs charges and expenses and
auditing the same
5
(ii) a charge equivalent to ten per centum of the aggregate costs
expenses and outgoings referred to in this clause 1(1)(xiii)
(but excluding this sub-paragraph (f)(ii)) such sum to be in
respect of the general administration and supervision costs of
the Landlord relating to or in connection with the matters
specified or referred to in this Clause 1(1)(xiii) or any of
them PROVIDED that any sums payable to a managing agent under
the immediately preceding sub-paragraph (f)(i) in respect of
the management or supervision of the Estate and which shall be
included in the calculation of the said aggregate costs
expenses and outgoings shall be deducted from the charge
included by virtue of this sub-paragraph
(g) the costs of effecting and maintaining in force an insurance policy or
policies against any and every liability of the Landlord for injury to
or death of any person (including every agent servant and xxxxxxx of
the Landlord) and damage to or destruction of the property by any
such person arising out of the maintenance of the Estate
(h) the cost of carrying out all other work or providing services of
any kind whatsoever which the Landlord may from time to time
reasonably consider necessary or desirable for the purpose of
maintaining or improving the Estate in the interests of the tenants
thereof
(i) such sums as the Landlord shall in its discretion think fit as
being a reasonable provision for expenditure likely to be incurred
during the Term in connection with the matters mentioned in this
and the preceding paragraphs
but excluding any expenditure on any part of the Estate for which any
other tenant shall be directly responsible and/or which shall be
attributable (whether directly or indirectly) to the construction by the
Landlord of Phase 2 of the Estate on that part of the Estate shown
coloured orange on Plan B but giving credit for any sums payable to the
Landlord from any owner or occupier of adjoining land towards the cost
of provision of Estate Services
6
(xiii) "the Initial Rent" is One Hundred and Twenty One Thousand Pounds
(L121,000) per annum
(xiv) "the Insured Risks" means the risks covered from time to time by
the insurance policy effected by the Landlord pursuant to its
covenant herein contained including a minimum of three years
loss of rent and risks in respect of fire lightning explosion
storm tempest flood aircraft and articles dropped therefrom
impact storm riot and civil commotion burst pipes and tanks and
damage to or failure of the boilers lifts lift apparatus plant
rooms heating and air conditioning apparatus and other apparatus
plant and machinery in the Demised Premises subsidence heave
landslip and such other risks or perils (if any) as the Landlord
may from time to time deem prudent to insure
(xv) "the Landlord" includes the person or persons for the time being
entitled to the reversion immediately expectant on the Term
(xvi) "Plan A" and "Plan B" means the plan or plans so marked annexed
hereto
(xvii) "the Planning Acts" means and includes the Town & Country
Planning Acts 1990 the Planning (Listed Buildings and
Conservation Areas) Xxx 0000 the Planning (Hazardous Substances)
Xxx 0000 the Planning (Consequential Provisions) Xxx 0000 the
Environmental Protection Xxx 0000 the Planning and Compensation
Xxx 0000 and the Environment Xxx 0000
(xviii) "Possession Date" means whichever is the earliest of the date
hereof or
7
the date upon which the Tenant takes possession of the Demised
Premises or has access to the Demised Premises for the purposes
of commencing its fitting out works
(xix) "these Presents" means this Lease and the Schedules hereto and
any licences granted pursuant hereto and any deed of variation
hereof and any deed or other instrument made supplemental hereto
(xx) "Provisional Sum" in relation to each Service Period means an
amount calculated by the Landlord's managing agents acting as
experts and not arbitrators as their reasonable and proper
estimate of the likely Service Rent for the relevant Service
Period
(xxi) "the Rent Commencement Date" means the 12th day of August 1998
(xxii) "Review Date" means the 12th day of August 2003 and the 12th day of
August 2008
(xxiii) "Service Period" means the period:-
(a) from the Possession Date to (and including) the first
Account Date; and thereafter
(b) between two consecutive Account Dates (excluding the first
and including the second); and thereafter
(c) commencing immediately after the last Account Date of the
Term and ending on the expiration or sooner determination
of the Term
8
(xxiv) "Service Rent" is the relevant proportion applicable to the
Demised Premises from time to time of the Estate Service
Expenditure for any relevant Service Period
(xxv) "the Tenant" includes the successors in title and assigns of the
Tenant(s)
(xxvi) "the Term" means a term of 15 years commencing on the 12th day
of August 1998 together with any holding over continuation or
extension thereof whether by agreement operation of law or
otherwise
(xxvii) "underlease" means any lease granted or agreed to be granted
(whether immediately or not) out of the Term and "underlessee"
means the lessee for the time being thereunder and
"underletting" means the grant of any underlease
(2) AND in these Presents unless there is something in the context inconsistent
therewith:-
(i) words importing the masculine gender shall include every gender
and vice versa and words importing the singular shall include
the plural and vice versa and words importing persons and all
references to persons shall include companies corporations and
firms and vice versa and references to a natural person include
his estate and personal representatives
(ii) if at any time two or more persons are included in the
expression "the Landlord ("the Tenant" or "the Surety" then
covenants herein contained or implied by or on the part of such
persons shall be deemed to be and
9
shall be construed as covenants entered into by and binding on
such persons jointly and severally
(iii) any reference to any enactment (whether generally or
specifically) shall be construed as a reference to that
enactment as amended extended re-enacted or applied or
consolidated by or under any other enactment and shall include
all instruments orders plans regulations permissions and
directions made or issued thereunder or deriving validity
therefrom
(iv) the clause and paragraph headings in this Lease are for ease of
reference only and shall not be taken into account in the
construction or interpretation of any covenant condition or
proviso to which they refer
(v) references in this Lease to a clause Schedule or paragraph are
references where the context so admits to a clause Schedule or
paragraph of this Lease and references to a paragraph of a
Schedule are (unless the context otherwise requires) references
to a paragraph of that Schedule in this Lease
(vi) any covenant by the Tenant or any underlessee not to do any act
or thing shall include a covenant not to permit or suffer the
doing of that act or thing
(vii) the perpetuity period applicable to this Lease shall be eighty
years from the date hereof and wherever in this Lease either
party is granted a future interest in property there shall be
deemed to be included in respect of every such grant a provision
requiring that future interest to
10
vest within the stated period and for it to be void for
remoteness if it shall not have so vested
(viii) Clause headings shall not affect the construction of this Lease
2. THE DEMISE
The Landlord HEREBY DEMISES unto the Tenant the Demised Premises
TOGETHER with the particular rights in the First Schedule hereto so far as
the Landlord has power to grant the same BUT EXCEPT AND RESERVING
AND SUBJECT to the particular rights and matters in the Second Schedule
hereto AND SUBJECT ALSO to and with the benefit of the matters referred
to in the Third Schedule hereto and to such other rights easements
quasi-easements and privileges as are enjoyed by any adjoining or
neighboring land or premises in any manner affecting the Demised
Premises TO HOLD the Demised Premises unto the Tenant (together with
but except and reserved and subject as aforesaid) for the Term YIELDING
AND PAYING therefor unto the Landlord during the Term and so in
proportion for any less time than a year without any deductions therefrom
whatsoever the following rents namely:-
(a) First from the Rent Commencement Date and during the remainder of
the Term the Initial Rent or such higher yearly rent as may become
payable pursuant to review under Clause 6 hereof such yearly rent
to be payable by equal quarterly payments in advance on the usual
quarter days in each year of which the first payment (being the
due proportion for the period commencing on the Rent Commencement
Date and ending on the day preceding the usual quarter day
thereafter) to be paid on or before the Rent Commencement Date
11
(b) Secondly throughout the Term by way of additional rent all sums
(including the whole of any increase in any premium from time to
time as a result of or arising out of the manner or the purposes in
or for which the Demised Premises are kept used and occupied and
the cost of periodically revaluing but not more than once in any
Year the Demised Premises for insurance purposes) incurred by the
Landlord in respect of the several insurances referred to in Clause
4(1) hereof each such sum to be paid by the Tenant forthwith on
demand therefor (but not earlier than one month before the next
renewal date) the first such payment in respect of the amounts
already so expended by the Landlord (being the due proportion
thereof for the period from the Possession Date to the next renewal
date or dates for such insurances) to be paid on or before the date
hereof and in the event of any dispute as to any such sum the same
shall be reasonably determined by the Landlord's surveyor (acting
as an independent expert and not as an arbitrator) whose
determination shall in the absence of manifest error be final and
binding on the parties save as to questions of law and
(c) Thirdly with effect from the Possession Date as additional yearly
rent the Service Rent (including the Provisional Sum on account)
payable in accordance with the provisions of clause 9 hereof
(d) Fourthly by way of additional rent all other sums payable by the
Tenant hereunder including (without prejudice to the generality of
the foregoing) interest collection charges costs and Value Added Tax
on the rents hereinbefore made payable such sums to be paid upon
demand
12
3. TENANT'S COVENANTS
The Tenant to the intent that the obligations hereby created shall continue
throughout the whole of the Term HEREBY COVENANTS with the Landlord as
follows:-
(1) RENT
(a) To pay the rents hereby reserved at the times and in the manner
aforesaid and not to exercise or to seek any right or claim to
withhold rent or any right or claim to legal or equitable set-off
(b) If so required by the Landlord to make such payments by bankers
order or credit transfer to any bank account or other account in the
United Kingdom which the Landlord may from time to time
reasonably nominate
(2) OUTGOINGS
(a) To pay and keep the Landlord fully indemnified from and against all
liability for all general and other rates of whatever nature or
kind and all taxes charges duties levies assessments impositions
and outgoings whatever (whether parliamentary parochial local or of
any other description) which are now or may become payable in
respect of the Demised Premises whether by the owner tenant or
occupier thereof other than those which occur as a direct or
indirect result of any dealing by the Landlord in respect of its
reversionary interest or taxes imposed on the Landlord in respect
of the rents reserved in these Presents (save for VAT) and in
addition to indemnify the Landlord
13
against any rates and outgoings payable by the Landlord after the
expiration or sooner determination of the Term through the
Landlord's inability to claim void rate relief for the maximum period
(commencing with the date of the expiration or sooner determination
of the Term) which would have been allowed had the Demised
Premises been occupied up to the date of the expiration or sooner
determination of the Term
(b) (i) To pay to the Landlord in addition to the rents and other sums
payable under this Lease amounts equal to any Value Added Tax
(or similar tax whether in substitution for or in addition to
it) chargeable on any supply made by the Landlord to the
Tenant under the terms of or in connection with this Lease
(ii) To pay and to indemnify the Landlord against amounts equal to
any Value Added Tax (or similar tax as aforesaid) chargeable
by reference to any sum paid or payable by the Landlord in
respect whereof (or some part thereof) the Tenant agrees under
this Lease to reimburse or indemnify the Landlord save where
the Landlord is able to reclaim the same as an input credit
(unless the Landlord is required by law to recharge the VAT to
the Tenant)
(c) To pay all charges (including meter rents and standing charges) for
supplies of gas water and electricity consumed upon the Demised
Premises
(d) Not to agree or by default allow to be fixed the rateable value of
the Demised Premises or any part thereof without the prior written
14
consent of the Landlord such consent not to be unreasonably
withheld and to co-operate with the Landlord at the joint cost of
the Landlord and the Tenant in any negotiations with the District
Valuer or in any appeal to the Court or to the Lands Tribunal in
respect of the rateable value of the Demised Premises
3. REPAIR
At all times during the term to put and keep the Demised Premises and
means of escape therefrom in case of fire or other emergency and
Conducting Media forming part of and exclusively serving the Demised
Premises in good and substantial repair and condition and to amend
rebuild renew and replace whenever necessary in accordance with good
modern practice the whole or any part of the Demised Premises if the
same is or becomes beyond repair and to maintain decorate support and
clean the Demised Premises and to repair and to keep all yards and
spaces not built upon clean tidy and free from refuse and weeds and to
keep the external fabric and stonework cleaned and maintained as and
when necessary and to keep the central heating and hot water boilers
apparatus and installations and all sanitary and water apparatus for the
time being of and serving the Demised Premises in good and substantial
repair and clean condition and at all times in good and safe working
condition (damage by the Insured Risks always excepted save to the
extent that the policy or policies of insurance shall be rendered void
or payment of the insurance moneys thereunder be refused in whole or in
part by reason of or arising out of any act omission neglect or default
of the Tenant or any underlessee or other person under the control of
the Tenant or any underlessee) and to clean the glass in the Demised
Premises inside at least once a month and the outside bi-monthly and
(without prejudice to the generality of the foregoing obligations of the
15
Tenant):-
(a) in a good and workmanlike manner and to the satisfaction of the
Landlord in every third year of the Term calculated from the date
hereof and also in the last three months of the Term (however and
whenever it may terminate) to paint all the external woodwork
ironwork metalwork cement or stucco-work (if any) and all other
external parts of the Demised Premises which have been previously
painted or ought to be painted with at least two coats of good
quality paint of a colour (if different from that used previously)
first specified or approved in writing by the Landlord (such
approval not to be unreasonably withheld or delayed)
(b) in like manner and to the like satisfaction in every fifth year of
the Term calculated from the date hereof and also in the last three
months of the Term (however and whenever it may terminate) to paint
with at least two coats of good quality paint all interior parts of
the Demised Premises which have previously been or ought to be
painted and paper or otherwise suitably decorate or treat with good
quality materials as circumstances may require all parts of the
interior of the Demised Premises which have previously been or
ought to be so dealt with
(c) as often as may be necessary to maintain in good and substantial
condition and to clean and treat in a suitable manner all surfaces
fixtures and fittings not required to be decorated and so often as
it shall be necessary to repair maintain and renew any plant
machinery boilers equipment and fixtures and fittings
16
(d) to comply with the requirements or recommendations of any
maintenance and operating manuals provided by the Landlord to the
Tenant
(e) to enter into contracts for the periodic and regular inspection
servicing and maintenance of the lifts lift shafts and lift
apparatus and the hot water boilers and central heating apparatus
and the air-conditioning and ventilation apparatus and any other
apparatus and installations machinery and equipment and all
sanitary and water apparatus and thereafter to keep the same on
foot and observe and perform the Tenant's obligations thereunder
and to produce to the Landlord on demand from time to time such
contracts and evidence that any payments due from the Tenant
thereunder are fully paid up-to-date
(4) COMPLIANCE WITH STATUTES
(a) In connection with the Defective Premises Xxx 0000 to notify the
Landlord in writing immediately the Tenant becomes aware of any
defect in the Demised Premises which may cause personal injury and
to indemnify the Landlord against any claims proceedings demands
costs and expenses incurred under Section 4 of the said Act by
reason of the Tenant's failure to erect and display prominently any
such notice or warning of relevant defects (within the meaning of
that Section) which the Landlord may request AND without prejudice
to the foregoing to permit the Landlord and its agents with or
without workmen and others at any time on reasonable notice to
enter upon the Demised Premises for any or all of the following
purposes namely erecting and exhibiting notices thereon and giving
warning of
17
relevant defects within the meaning of Section 4 of the said Act in
the Demised Premises and installing lighting or any other reasonable
means of warning or protection against such defects
(b) To observe and perform all requirements of any Act of Parliament
local Act or bye-law and notices issued thereunder or of any public
local or other competent authority (whether or not required of the
Tenant itself) in any way affecting the Demised Premises or any
thing in or any activity carried on by persons residing at or
working or employed at the Demised Premises or the use and
occupation thereof within the time limited by law or the notice
requiring the same (or if no time is so limited then within a
reasonable time) and to indemnify and keep the Landlord fully
indemnified against all such requirements and all actions
proceedings costs claims demands expenses and liability whatever
arising out of or in connection with the non-observance or
non-performance thereof
(c) Comply with all requirements and regulations of the electricity and
gas supply authorities as to the electrical and gas installations
in the Demised Premises and not without the Landlord's written
consent (which shall not be unreasonably withheld or delayed) to
alter or extend the electrical or gas installations or electrical
wiring in the Demised Premises nor to use any apparatus which
overloads the electrical or gas installations in the Demised
Premises
(5) PARTY STRUCTURES
(To the extent that the same is not included in the Estate Service
Expenditure) on receipt of a written demand from or on behalf of the
18
Landlord forthwith to pay a just proportion fairly attributable to the
Demised Premises of all expenses of making maintaining upholding
repairing rebuilding renewing scouring and cleansing any party walls
fences gates and railings and any path ways yards external means of
escape in case of fire or other emergency and Conducting Media and other
structures which are available for enjoyment and use by the Occupiers of
the Demised Premises jointly with the occupiers of any adjoining or
neighbouring land or premises such proportion if in dispute to be
reasonably determined by the Landlord's surveyor (acting as an
independent expert and not as an arbitrator) whose determination shall
be final and binding upon the parties save as to questions of law or in
the event of manifest error
(6) YIELD UP IN GOOD REPAIR AT THE END OF THE TERM
Quietly to surrender and yield up the Demised Premises to the Landlord or
as the Landlord may direct at the end or sooner determination of the
Term in a state and condition in all respects in accordance with the
covenants on the part of the Tenant herein contained Provided that if at
the expiration or sooner determination of the Term the Demised Premises
shall not be in such a state of repair and condition as shall be in
accordance with the Tenant's covenants and provisions herein contained
for or relating to the repair painting or the carrying out of any other
works on the Demised Premises by the Tenant then the Tenant shall pay to
the Landlord forthwith on demand a sum equivalent to the cost to the
Landlord of carrying out such repairs painting and works as shall be
necessary to put the Demised Premises in such a state of repair and
condition as aforesaid together with an amount representing the loss of
the rent first hereby reserved suffered by the Landlord for such
reasonable period to enable such repairs painting and works to be
carried out such sum in default of agreement to be certified by
19
the Landlord's surveyor (acting as an independent expert and not as an
arbitrator) whose determination shall be final and binding upon the parties
save as to questions of law or in the event of manifest error
(7) LANDLORD'S RIGHT OF INSPECTION AND RIGHT OF REPAIR
(a) To permit the Landlord and others authorised by the Landlord after
48 hours prior written notice at reasonable hours during the daytime
to enter upon the Demised Premises to view and inspect the Demised
Premises and ascertain how the same are being used and occupied
and the state and condition thereof and to take schedules of all
Landlord's fixtures and fittings and to estimate the current value of
the Demised Premises for insurance mortgage or other purposes
(b) Whenever on any such inspection anything is found which constitutes
a breach non-performance or non-observance of the covenants on the
part of the Tenant herein contained and of which the Landlord gives
notice to the Tenant to remedy and make good the same within two
months of the date of such notice (or sooner if necessary) but if
the Tenant shall fail so to do to permit the Landlord if it so
desires (although the Landlord shall be under no obligation so to
do) without prejudice to the Landlord's right of re-entry
hereinafter contained or any other right or remedy of the Landlord
to enter upon the Demised Premises with contractors workmen and
others and all necessary equipment tools and materials and to
execute or complete such works and to pay to the Landlord on
written demand either during or on completion of such works as the
Landlord may require the costs and expenses thereby incurred by the
Landlord together with all solicitors' surveyors' and other
professional fees and expenses
20
incurred by the Landlord in relation to such works such sums to be
recoverable as rent in arrear
(c) To permit the Landlord and others authorised by the Landlord and
the tenants owners or occupiers from time to time of any adjoining
or neighboring land or premises and their respective agents and
contractors to enter upon the Demised Premises with workmen and
others and all necessary equipment tools and materials after at
least 48 hours prior written notice (except in an emergency when no
prior notice need be given and if necessary to break into the
Demised Premises) in order to carry out repairs alterations
additions decorations or any other works to or on any adjoining or
neighboring land or premises which cannot reasonably be carried out
without entry on to the Demised Premises PROVIDED ALWAYS that the
persons so entering shall cause thereby as little inconvenience as
possible to the Tenant or the other occupiers of the Demised
Premises and shall with the minimum of delay make good all physical
damage thereby caused to the Demised Premises
(8) LANDLORD'S COSTS AND EXPENSES
To pay on demand all costs charges and expenses (including solicitors'
costs architects' managing agents and surveyors' fees) payable by the
Landlord for the purposes of and incidental to:
(a) the preparation service or enforcement (whether by proceedings or
otherwise) of any notice under Section 146 or 147 of the Law of
Property Xxx 0000 requiring the Tenant to remedy a breach of any of
the Tenant's obligations hereunder notwithstanding forfeiture for
any
21
such breach shall be avoided otherwise than by relief granted by the
Court
(b) the preparation service or enforcement (whether by proceedings or
otherwise) of any notice to repair or schedule of dilapidations
accrued at or prior to the end or sooner determination of the Term
whether or not served during the Term
(c) the collection of the rents and other amounts payable by the Tenant
hereunder
(d) the performance and observance of any other of the provisions of this
Lease
(e) any application by the Tenant to the Landlord for consent or
approval under the terms of this Lease and these Presents whether
such consent is given unconditionally or subject to conditions or
refused or the request for the same is withdrawn subject to such
costs being reasonable and proper
(9) INSURANCE AND PROVISIONS IN CASE OF FIRE ETC.
(a) If the Demised Premises or any part thereof shall be destroyed or
damaged as a result of any act omission neglect or default by or on
the part of the Tenant or any underlessee or any person under the
control of the Tenant or any underlessee whereby any policy of
insurance maintained by the Landlord is rendered void or payment of
the insurance money thereunder is refused in whole or in part to
pay to the Landlord on written demand or otherwise make good to the
22
Landlord all loss damage and expense thereby incurred and to
indemnify the Landlord against all actions proceedings costs claims
demands and liability whatsoever resulting therefrom or arising
thereout including the cost of rebuilding reinstating replacing and
making good the Demised Premises
(b) To keep the Demised Premises supplied with such fire prevention
and fire fighting equipment as the insurers and Fire Authority may
require and to maintain the same to their satisfaction
(c) To comply with all requirements and reasonable recommendations of
the insurers and Fire Authorities as to fire precautions and fire
fighting equipment relating to the Demised Premises or the conduct
of persons using the Demised Premises
(d) In the event of the Demised Premises or any part thereof being
destroyed or damaged by any of the Insured Risks to give notice
thereof to the Landlord as soon as possible
(e) Not to leave the Demised Premises vacant or unoccupied for a period
in excess of 21 days without first giving the Landlord at least 21
days prior written notice of the intention so to do and without
first paying any additional or increased premium required by the
insurers and in the event the Demised Premises are left vacant
during the last three months of the Term (howsoever determined) to
indemnify the Landlord against any loss of empty rate relief he
would otherwise enjoy at the end of the Term
(f) Not to do or omit to do anything or bring onto the Demised Premises
23
any explosive flammable or toxic or otherwise harmful chemicals or
materials or any other matter or thing of whatsoever nature which
shall or may cause the policy or policies for the insurance of the
Demised Premises or any adjoining or neighbouring land or premises
to become void or voidable or any premium payable to be increased
above the ordinary or common rate for similar premises
(g) Forthwith to inform the Landlord in writing of any conviction
judgement or finding of any Court or Tribunal relating to the
Tenant (or any director or other officer or major shareholder of
the Tenant) of such nature as to be likely to affect the decision
of any insurer or underwriter to grant or to continue insurance of
any of the Insured Risks
(h) The Tenant warrants that prior to the execution of this Lease it has
disclosed to the Landlord in writing any conviction judgement or
finding of any Court or Tribunal relating to the Tenant (or any
director or other officer or major shareholder of the Tenant) of such
nature as to be likely to affect the decision of any insurer or
underwriter to grant or to continue insurance of any of the Insured
Risks
(i) Not to insure or effect any insurance in respect of the Demised
Premises or any plateglass therein insofar as the same are insured by
the Landlord from time to time
(j) In the event of a claim upon the Landlords Policy of insurance any
shortfall arising in the insurance monies due to the imposition of
an excess by the Insurers any such excess shall be borne by the
Tenant
24
and paid to the Landlord upon demand
(10) USER
(a) The Demised Premises shall be kept used and occupied only as
business commercial or professional offices or subject to the prior
written consent of the Landlord (such consent not to be
unreasonably withheld or delayed) any other use within Class B1 of
the Town and Country Planning (Use Classes) Order 1987 (but not as
diplomatic offices or as a betting office or bookmaker's office or
as a jobcentre or as an office for the Department of Health and
Social Security) and not in any other manner or for any other
purpose or for any immoral or unlawful purpose or for any sale by
auction or for any residential purpose PROVIDED that the Tenant
hereby acknowledges and admits that notwithstanding the foregoing
provisions as to the use of the Demised Premises permitted to the
Tenant the Landlord does not thereby or in any way give or make any
representation or warranty that any such use is a permitted use
within the provisions of the Planning Acts nor shall any consent in
writing which the Landlord may hereafter give to any change of use
be taken as including any such representation or warranty and that
notwithstanding that any such use is not a permitted use within
such provisions the Tenant shall remain fully bound and liable to
the Landlord in respect of the obligations undertaken by the Tenant
by virtue of this Lease without any compensation recompense or
relief of any kind
(b) Neither the Tenant nor any underlessee nor any person under the
control of the Tenant or any underlessee shall overload any floor
of or lift in or serving the Demised Premises or pass or leave
anything of a
25
harmful nature through or in the basins or toilets or Conducting
Media in or serving the Demised Premises (whether exclusively or
jointly with other premises) or do anything at the Demised Premises
which shall be or may become a nuisance (whether indictable or not)
or which shall cause any damage or disturbance to the Landlord or
the owners tenants or occupiers from time to time of any adjoining or
neighboring land or premises
(11) ALTERATIONS
(a) Save and except in order to comply with any of the Tenant's
obligations hereunder there shall be no reconstruction or rebuilding
or carrying-out of any structural alterations additions or other
structural works of or to the Demised Premises nor any cutting
maiming or injuring of the main walls or roof and floor slabs of the
Demised Premises nor any erecting of any new buildings or erections
thereon PROVIDED that if such works are to be carried out by the
Tenant to comply with its obligations in this Lease the Tenant shall
first obtain the written consent of the Landlord to such works in the
manner set out in sub-clause (b) below
(b) Save and except as aforesaid any non-structural alterations
additions and other works of or to the Demised Premises shall be
carried out only after there has first been obtained the written
consent thereto of the Landlord (such consent not to be
unreasonably withheld or delayed) and all necessary approvals
consents licences permits or permissions of any competent authority
body or person and then only strictly in accordance with the terms
and conditions thereof and only in accordance with drawings and
specifications of the relevant
26
alterations additions or other works as the Landlord shall have
required and previously approved in writing (such approval not to be
unreasonably withheld or delayed) PROVIDED ALWAYS that the
Landlord may as a condition of giving such consent require the
Tenant to enter into such covenants with the Landlord as the
Landlord may reasonably require for the execution and supervision
of such works and the reinstatement of the Demised Premises at the
expiry or sooner determination of the Term (howsoever determined)
and such other covenants as the Landlord may reasonably require
(c) To permit the Landlord and others authorised by the Landlord to
enter upon the Demised Premises after reasonable prior notice at
reasonable hours during the daytime for the purpose of seeing that
all alterations additions and other works thereto are being or have
been carried out in all respects in conformity with this clause and
immediately upon being required to do so to remove any alterations
additions and other works of or to the Demised Premises which do
not so conform or in respect of which any such approvals consents
licences permits or permissions of any competent authority body or
person have been withdrawn or have lapsed and thereupon make
good all damage thereby caused to the Demised Premises and restore
and reinstate all parts of the Demised Premises affected thereby to
the reasonable satisfaction of the Landlord
(d) If so required in writing by the Landlord (but not otherwise) at
the expiry or earlier determination of the Term to remove all
alterations and additions made by the Tenant to the Demised
Premises during the Term or during any period of occupation prior
to the commencement of the Term
27
(12) SIGNS
No fascia sign nameplate xxxx notice placard/ advertisement or similar
device shall be affixed to or displayed in or on any part of the Demised
Premises so as to be visible from the exterior thereof save such as
indicates the name of any occupier or occupiers for the time being and
its or their business and save such as has been previously approved by
the Landlord in writing (such consent not to be unreasonably withheld or
delayed)
(13) AERIALs
No television or wireless or other form of mast or aerial receiver dish nor
any flagpole shall be affixed to any part of the exterior of the Demised
Premises save such as has been previously approved by the Landlord in
writing (such consent not to be unreasonably withheld or delayed)
(14) PLANNING ACTS
(a) Without prejudice to the generality of clause 3(4) hereof to
observe and perform all the requirements of any Acts or regulations
relating to fire and the Planning Acts in respect of the Demised
Premises or the use thereof and all the requirements of any
approval consent licence permit or permission granted thereunder
which remain lawfully enforceable and affect the Demised Premises
and to indemnify and keep the Landlord fully indemnified from and
against all actions proceedings costs claims demands expenses and
liability whatsoever arising out of or in connection with any
non-observance or non-performance thereof
28
(b) No application shall be made for any approval consent licence
permit permission certificate or determination under the Planning
Acts in respect of the Demised Premises without the prior written
consent of the Landlord (such consent not to be unreasonably
withheld or delayed)
(c) Unless the Landlord shall otherwise direct in writing to carry out
to the reasonable satisfaction of the Landlord during the Term
(however and whenever it may terminate) all works to the Demised
Premises which as a condition of any such approval consent licence
permit or permission obtained by and implemented by or on behalf of
the Tenant or any underlessee are required to be carried out at the
Demised Premises by a date after the Term (however and whenever it
may terminate)
(15) STATUTORY NOTICES
To give to the Landlord a copy of every notice of whatsoever nature
affecting or likely to affect the Demised Premises made given or issued
by or on behalf of the local planning authority or any other authority
body or person having lawful jurisdiction within fourteen days of its
receipt by the Tenant or any underlessee or sooner if requisite and to
produce the original thereof to the Landlord on written request AND if
so required in writing by or on behalf of the Landlord but at the joint
cost of the Landlord and the Tenant to make or join with the Landlord
and any other persons for the time being interested in the Demised
Premises or any adjoining or neighbouring land or premises affected
thereby in making such objections or representations against or in
respect of any such notice as aforesaid as the
29
Landlord may reasonably require
(16) ACCESS TO RE-LET
To permit the Landlord during the period of six months immediately
preceding the end or sooner determination of the Term (and at any time
during the Term in the event of any proposed disposal by the Landlord of
its interest in the Demised Premises) to affix and retain on any part of
the Demised Premises (but not so as thereby materially to interfere with
any trade or business carried on thereat or with reasonable access of
light and air thereto) notices and boards relating to any proposed
disposal by the Landlord of its interest in the Demised Premises or any
part thereof or for reletting or otherwise dealing with the same and to
permit all persons with written authority from the Landlord or the
Landlord's agents to inspect and view the Demised Premises at reasonable
times of the day by previous appointment
(17) ALIENATION
(a) Save as hereinafter permitted the Tenant shall not assign transfer
underlet part with or share possession or occupation mortgage or
charge or declare trusts over the whole or part only of the Demised
Premises and the Tenant shall not permit or suffer any such dealing
as aforesaid
(b) Not to part with possession or share occupation of the Demised
Premises or any part thereof other than by way of:-
(i) an assignment or charge permitted under sub-clause 3(17)(c);
30
or
(ii) an underlease permitted under sub-clause 3(17)(e); or
(iii) sharing of occupation by a company in the same group as the
Tenant permitted under sub-clause 3(17)(f)
(c) Not to assign or charge the whole of the Demised Premises without
the Landlord's prior written consent which consent shall not be
unreasonably withheld or delayed but which in respect of a proposed
assignment may be subject to satisfaction of the conditions set out in
sub-clause 3(17)(d) below and to complete any such assignment
within twenty working days of the issue of the Landlord's consent
provided that nothing in this sub-clause shall prevent the Tenant
charging the Demised Premises pursuant to a floating charge over its
assets entered into prior to the date hereof
(d) The conditions referred to in sub-clause 3(17)(c) which are
specified for the purposes of Section 19(1A) of the Landlord and
Xxxxxx Xxx 0000 are:-
(i) that the Tenant shall have entered into an authorised
guarantee agreement (as defined in Section 16 of the Landlord
and Tenant (Covenants) Act 1995) with the Landlord in a form
which the Landlord reasonably requires
(ii) that any guarantor of the Tenant's obligations under the Lease
shall have guaranteed to the Landlord that the Tenant will
comply with the terms and conditions of the agreement
31
referred to in sub-clause 3(17)(d)(i) and in a form which the
Landlord reasonably requires
(iii) that any arrears of rent and any other payments due under
this Lease (including any outstanding balance due under the
terms of any rent deposit deed or bank guarantee) as at the
date of the Tenant's application for Licence to Assign has
been paid
(iv) that the Landlord reasonably determines that the proposed
assignee is capable of being able to comply with the
Tenant's covenants in this Lease and to continue to be such
a person following the assignment
(v) the Landlord is reasonably satisfied that completion of the
assignment will not materially adversely affect the value of
the Landlord's interest in the Demised Premises
(vi) the proposed assignee would in the reasonable opinion of the
Landlord be acceptable to a reasonable institutional
investor in the market taking into account any reasonable
and proper facts including but not limited to the financial
strength of the proposed assignee and any guarantor of the
proposed assignee's obligations and any rent deposit offered
by the assignee
(vii) the execution and delivery to the Landlord prior to the
assignment of a rent deposit deed or the provision of a bank
guarantee for such sum as the Landlord may reasonably
determine but not exceeding 12 months passing rent in a form
32
reasonably acceptable to the Landlord and in substantially
the same form mutatis mutandis (save as the circumstances
require) as a rent deposit deed of even date herewith and
made between the parties hereto in the case of a rent
deposit deed together with the payment by way of cleared
funds of the sums specified in the rent deposit deed
(viii) any intended assignee shall enter into a deed of covenant
with the Landlord in such a form as the Landlord shall
reasonably require to observe and perform all the covenants
and agreements on the part of the Tenant herein contained
during such period as the Tenant is bound by the Lease
covenants and in the case of a limited liability company
should the Landlord so reasonably require a guarantor or
guarantors reasonably acceptable to the Landlord shall join
in such deed of covenant to covenant with the Landlord
substantially in the same terms mutatis mutandis as clause 8
hereof
PROVIDED THAT the Landlord and the Tenant agree that the Landlord
may withhold its consent if any one or more of the following
circumstances exist in which case the Landlord shall not be
regarded as unreasonably withholding its consent:
(1) The proposed assignee is a company which is a member of the
same group (within the meaning of Section 42 of the Landlord
and Tenant Act 1954) as the Tenant unless the Tenant and the
proposed assignee become joint tenants
(2) The Landlord reasonably determines there is any subsisting
33
material breach of any of the Tenant's covenants and
conditions in this Lease
(3) The proposed assignee or any proposed guarantor for the
proposed assignee (other than any guarantor under an
authorised guarantee agreement) is a corporation registered in
or an individual resident in a jurisdiction in which a
judgment obtained in the Courts of England and Wales will not
necessarily be enforced without any re-examination of the
merits of the case
(4) The proposed assignee is a person firm company or other body
corporate or entity which has the right to claim diplomatic
immunity or exemption in relation to the observance and
performance of the covenants and conditions contained in this
Lease
(5) That if any consent of a superior landlord and/or mortgagee is
required to the assignment that consent has not been obtained
before the assignment
(6) The proposed assignee fails to demonstrate that it has a
satisfactory current trading record to enable it to take on
the liabilities under this Lease
(e) PERMITTED UNDERLETTING
(i) The Tenant shall not underlet the whole or part of the Demised
Premises or agree to underlet the whole or part of the Demised
34
Premises comprising one or more complete floors of the Demised
Premises without the prior written consent of the Landlord
such consent not to be unreasonably withheld or delayed
provided that there shall not be more than two separate
occupations of the Demised Premises at any one time and
provided further that all underlettings of part of the Demised
Premises shall have the renewal provisions of the 1954 Act (as
amended) excluded by Court Order pursuant to Section 5 of the
Law of Property Xxx 0000 and the Tenant shall not underlet the
whole or part of the Demised Premises otherwise than by an
underlease with provision for upwards only review of the
reserved rent as at each review date during the term of the
underlease in like manner (mutatis mutandis) as provided in
Clause 6 hereof and in accordance with sub-clause 3(17)(e)(iv)
hereof PROVIDED THAT the Tenant shall not underlet the whole
or any part of the Demised Premises at a fine or a premium and
not otherwise than at the Market Rent (as defined in Clause 6)
or the proportionate part of the Market Rent of the Demised
Premises where only part of the Demised Premises is underlet
(such rent in all cases to be approved by the Landlord such
approval not to be unreasonably withheld or delayed) and
(ii) any intended undertenant shall enter into a deed of covenant
with the Landlord in such form as the Landlord shall
reasonably require to observe and perform all the covenants
and agreements on the part of the tenant contained in the
underlease and if the Landlord so reasonably requires a
guarantor or guarantors reasonably acceptable to the Landlord
35
shall join in such deed of covenant to covenant with the
Landlord in substantially the same terms mutatis mutandis as
clause 8 hereof
(iii) in any permitted mediate or immediate underlease the rent
shall be payable no more than one quarter in advance and
(iv) any such underlease shall in all respects be consistent with
the provisions of this Lease including in particular (but
without prejudice to the generality of the foregoing)
provisions as to rent review which shall follow the
provisions of this Lease and which require a review of the
rent payable under this Lease to the Market Rent in
accordance with the provisions and at the date of review of
the rent payable under this Lease and
(v) At all times to enforce compliance with the covenants and
conditions contained in all underleases (whether mediate or
immediate) of the Demised Premises and not to waive or vary
any of the same without the prior written consent of the
Landlord and not without the consent of the Landlord to
accept a surrender of any underlease of the Demised Premises
or agree any reviewed rent with an undertenant until the rent
on rent review has been agreed or determined as between the
Landlord and the Tenant pursuant to Clause 6 hereof and
(vi) Any further dealings with the Demised Premises thereby
demised which are permitted shall be subject to the prior
written consent of the Landlord (such consent not to be
unreasonably withheld or delayed) to a permitted dealing
36
which would not result in a breach of any of the provisions of
this clause
(vii) Not upon a review of the rent reserved by an underlease of
the whole or any part of the Demised Premises to agree the
amount of any such reviewed rent without the prior consent
of the Landlord which consent shall not be unreasonably
withheld or delayed
(viii) Without prejudice to paragraph 3(17)(e)(ii) the Tenant shall
procure that any intended undertenant covenants with the
Landlord not to assign the underlet premises without
obtaining a deed of covenant from the intended assignee in
favour of the Landlord in the same form (mutatis mutandis)
as the deed referred to in paragraph 3(17)(e)(ii) and if
the Landlord so reasonably requires one or more guarantors
reasonably acceptable to the Landlord shall join in such
deed in favour of the Landlord guaranteeing the due
performance of all the obligations and liabilities of the
intended assignee the deed to be in substantially the same
terms mutatis mutandis as clause 8 hereof
(ix) In the case of an underlease of part of the Demised Premises
the form of the underlease shall be first approved by the
Landlord (such approval not to be unreasonably withheld or
delayed) and such form shall not demise any part of the
structure or common parts of the Building but shall contain
provisions under which the undertenant is liable to pay a
fair proportion of the costs of insuring repairing and
redecoration
37
of the structure and common parts and all other services
relating to the Building which benefit such part of the
Demised Premises directly or indirectly and not to differ from
the terms of this Lease except insofar as reasonably necessary
to make it applicable to such underletting of part
(f) Notwithstanding the foregoing provisions of this sub-clause the
Tenant may without the consent of the Landlord share occupation of
the whole or any part of the Demised Premises with a company that
is a member of the same group as the Tenant within the meaning of
Section 42 of the 1954 Act for so long only as such company remains
a member of the group provided that (1) the relationship of
Landlord and Tenant is not thereby created (2) that any such
company shall vacate the Demised Premises forthwith upon vacation
by the Tenant (3) written notice is given to the Landlord prior to
such company taking occupation of the Demised Premises or any part
thereof
(g) Within twenty-one days of every assignment or transfer (whether by
deed will or otherwise) and every permitted underlease of the
Demised Premises or any part thereof and every other disposition or
transmission or devolution of the Demised Premises (including all
Orders of Court Probates and Letters of Administration) notice
thereof shall be given to the Landlord's Solicitors stating the
date and short particulars thereof and the names and addresses of
every party thereto and at the same time a certified copy of the
deed document or instrument creating or evidencing the same shall
be produced (properly stamped if required to be stamped) to the
Landlord's Solicitors for registration (with an additional
certified copy thereof for retention by the Landlord) and a
reasonable solicitor's fee for such
38
registration shall be paid by the Tenant
(h) Within one month of the ascertainment of the yearly rent payable
under any underlease or remoter lease of the Demised Premises or
any part of it pursuant to the provisions in such deed for rent review
to give notice in writing to the Landlord of the yearly rent so
ascertained
(18) INFORMATION
Immediately on receiving a request for the same from the Landlord or its
agents (but not more than once a year) to give the following information to
the Landlord in writing:-
(a) full names and addresses of all persons in occupation of the Demised
Premises or any part of it
(b) the precise part of the Demised Premises which such persons occupy
(c) a true copy of the document or if none a written memorandum of the
agreement and parties to it whereby each such person is or claims to
be entitled to occupy any part of the Demised Premises
(d) full names and addresses of all persons entitled or claiming to be
entitled to an interest in the Demised Premises or any part of it
(whether at law or in equity)
(e) the precise part of the Demised Premises in which each such person
is or claims to be entitled to an interest
39
(f) a true copy of the document or if none a written memorandum of the
agreement and parties to it whereby each such person is or claims
to be entitled to an interest in the Demised Premises or any part
of it
(g) the name home address and home telephone number of at least two
keyholders of the Demised Premises
(19) ACQUISITION OF RIGHTS ENCROACHMENTS ETC.
(a) Neither the Tenant nor any underlessee shall effect authorise or
permit any encroachment upon or acquisition of any right easement
quasi-right quasi-easement or privilege adversely affecting the
Demised Premises or any closing or obstruction of the access of light
or air to any windows or openings of the Demised Premises nor shall
the Tenant or any underlessee give any acknowledgment to any third
party that the enjoyment of access of light or air thereto is with the
consent of such third party nor give any consideration to any third
party nor enter into any agreement with any third party for the
purpose of inducing or binding such third party to abstain from
obstructing the access of light or air thereto
(b) If any such encroachment or acquisition or closing or obstruction
shall be threatened or attempted to give notice thereof to the
Landlord as soon as the same comes to the knowledge of the Tenant
and upon request by the Landlord to take immediate steps (in
conjunction with the Landlord and other interested persons if the
Landlord shall so require) at the joint cost of the Landlord and the
Tenant to adopt all such lawful means and do all such lawful things
40
as the Landlord may reasonably deem appropriate for preventing any
such encroachment or acquisition
(c) Not to stop up or obstruct any windows or light belonging to the
Demised Premises or to any other building belonging to the Landlord
nor permit any new window light opening doorway path drain or
encroachment or easement to be made into against or upon the
Demised Premises without the Landlord's consent and to give notice
to the Landlord of any such encroachment which shall be made or
attempted and which comes to the Tenant's notice and at the request
of the Landlord to adopt such means and take such steps at the joint
cost of the Landlord and the Tenant as may be reasonably required by
the Landlord to prevent the same
(20) MATTERS AFFECTING THE DEMISED PREMISES
(a) To observe and perform the agreements covenants and stipulations
contained or referred to in the Third Schedule hereto insofar as the
same are still subsisting and capable of being enforced against the
Demised Premises or the owner Landlord tenant or occupier thereof
and to keep the Landlord throughout the Term fully indemnified
against all actions proceedings costs claims demands expenses and
liability in any way relating thereto in so far as they relate to the
Demised Premises
(b) Not knowingly to do or permit or suffer any matter or thing which
may hinder or prevent the Landlord or its agents from observing and
performing all and singular the covenants conditions and agreements
on its part contained in this Lease
41
(21) RUBBISH
Not to allow rubbish of any description to accumulate on any part of the
Demised Premises but to place all refuse or rubbish tidily in proper
receptacles therefor provided by the Tenant on the refuse area shown
coloured yellow on Plan A in accordance with the right in that behalf
contained in Paragraph 4 of the First Schedule hereto and not to hang or
place or to allow to be hung or placed any articles or other goods of any
description outside the Demised Premises or the entrance door thereof
whether on the forecourt or otherwise or from the windows of the Demised
Premises nor expose outside or from the windows of the Demised Premises
any clothes articles or other goods of any description
(22) LOADING
Not to load or unload nor to permit or suffer to be loaded or unloaded any
vehicle unless the vehicle shall be in the unloading area (if any) provided
from time to time by the Landlord for that purpose and in accordance with
the regulations (if any) made by the Landlord in this respect
(23) CARPETS AND DECORATION
To clean repair replace and renew as often as the Landlord may
reasonably consider necessary the fitted carpets within the Demised
Premises and at the end or sooner determination of the term at the
Tenant's own cost to deliver up the Demised Premises with new good
quality carpets and the walls redecorated to a good standard
42
(24) APPOINTMENT OF NEW GUARANTOR
Within fourteen days of the death during the Term of the Surety (if any)
or if more than one any of them or of any surety hereunder or of any
surety in any underlease or of any such person becoming bankrupt or
having a bankruptcy petition presented against him or being a company
passing a resolution to wind up or entering into liquidation or having
an administrative receiver appointed or having an administration order
made against it to give notice of this to the Landlord and if so
required by the Landlord at the expense of the Tenant within
twenty-eight days to procure some other person acceptable to the
Landlord to execute a guarantee in respect of the Tenant's obligations
contained in this Lease in the form set out in clause 8
(25) APPLICATION FOR RELEASE
(a) The Tenant shall not unreasonably object to the release of the
Landlord or a former landlord from the Landlord's covenants in this
Lease to the extent (if any) as such covenants continue to bind the
Landlord assigning the reversion or a former landlord (as
appropriate) following an application made in accordance with
Section 8 of the Landlord and Tenant (Covenants) Xxx 0000 ("the
Act")
(b) If following a written notice from the Tenant objecting to such
release the Court makes a declaration that it is reasonable for the
Landlord or a former landlord to be released from the Landlord's
covenants in this Lease the Tenant shall indemnify the Landlord and
any former landlord in respect of any loss damage costs and expenses
incurred or
43
sustained as a result of the Tenant's objection
(26) REGULATIONS
To observe and perform all regulations made by the Landlord in the
interests of good estate management applicable to the Estate a copy of
which in their form current at the date of this Lease has been given to
the Tenant
4. LANDLORD'S COVENANTS
The Landlord HEREBY COVENANTS with the Tenant as follows:-
(1) INSURANCE
(a) To insure and (unless such insurance shall become void or payment
of the insurance monies shall be refused in whole or in part by reason
of any act omission neglect or default by or on the part of the Tenant
or any underlessee or other person under the control of the Tenant or
any underlessee) to keep insured or to procure such insurance (save
as aforesaid) and to pay promptly all premiums for insuring and
keeping insured the Demised Premises in the full reinstatement cost
(whether or not with any other premises) against loss or damage by
the Insured Risks together with insurance against architects'
surveyors' and other professional advisers' fees at the usual scales
current for the time being and the cost of demolition and site
clearance consequent upon rebuilding or reinstatement and VAT in
respect of all such costs and works and a minimum of 3 years loss of
the rent first hereby reserved
44
(b) Subject to Clause 5(5) hereof to claim all monies due and to apply
all monies (except monies received in respect of loss of or damage
to any other premises or the fixtures and fittings therein or
liability to third parties or loss of rent) received by the
Landlord under or by virtue of such insurance and any monies
received from the Tenant pursuant to the Tenant's obligation
contained in Clause 3(9)(a) hereof in rebuilding or reinstating the
Demised Premises or such parts thereof as may have been damaged or
destroyed as expeditiously as possible (subject always to the
Landlord being able to obtain all necessary approvals consents
licences permits and permissions from any superior lessor or other
competent authority and all such materials and labour as may be
required for such rebuilding and reinstatement) making good any
deficiency in the insurance monies out of the Landlord's own
resources unless such deficiency arises due to the act or neglect
or default of the Tenant its servants agents licensees or
undertenants PROVIDED THAT if any damage or destruction shall
render the Demised Premises wholly or substantially unfit for
occupation and if the Demised Premises shall not have been
reinstated by the date 2 years nine months after the date of such
damage or destruction either the Landlord or the Tenant may by
giving to the other party three months prior notice in writing
determine this demise provided that any such notice shall cease to
have effect and the Term shall continue if the Demised Premises
shall have been reinstated by the third anniversary of the date of
damage or destruction and provided further that any such
determination shall be without prejudice to any claim by the
Landlord in respect of any antecedent breach of the Tenant's
covenants and conditions herein contained and in the event of
either the Landlord or the Tenant determining this Lease pursuant
to this proviso neither the Tenant
45
nor anyone claiming through or under the Tenant shall object to the
payment to the Landlord or any superior lessor of any part of the
moneys (including monies in respect of professional fees demolition
site clearance shoring up and loss of rent) payable under any policy
of insurance in respect of the Demised Premises or any part thereof
(c) (i) To produce to the Tenant on request (such request not to be
made more often than once in each calendar year) a copy of the
insurance policy and the last premium renewal receipt or
reasonable evidence of the terms of the policy and that the last
premium has been paid; and
(ii) To use its reasonable endeavours to procure that the interest
of the Tenant is noted or endorsed on the said insurance
policy or policies at all times
(d) The Landlords obligation to insure under clause 4(1)(a) shall be
limited to and subject to any excess exclusion or limitation or other
terms and conditions imposed by insurers
(e) The Landlord shall not be obliged to insure under clause 4(1)(a) if
and to the extent that insurance is not regularly available in the
London insurance market on reasonable commercial terms provided
that it shall notify the Tenant forthwith
(f) The Landlord may but shall not be obliged to insure against loss of
rent and if the Landlord is itself an insurance company it may
self-insure in which case it shall be deemed to be doing so at its
usual rates and on its standard terms
46
(2) QUIET POSSESSION
That the Tenant paying the rents hereby reserved and all other monies
payable by the Tenant under these Presents and observing and performing
the several covenants and agreements on the Tenant's part and the
conditions and stipulations herein contained shall and may peaceably hold
and enjoy the Demised Premises during the Term according to these
Presents without any lawful interruption by the Landlord or any person
lawfully claiming through under or in trust for the Landlord
(3) PROVISION OF SERVICES
Subject to the payment of the rents hereby reserved the Landlord will
provide the Estate Services save as prevented by Insured Risks or acts
beyond its reasonable control provided that it shall use all reasonable
endeavours to restore the Estate Services in question as soon as reasonably
practicable
5. PROVISOS
PROVIDED ALWAYS AND IT IS HEREBY EXPRESSLY AGREED as follows:-
(1) Whenever the rent (whether formally or legally demanded or not) shall
remain unpaid after becoming due and payable or any other monies which
may become payable hereunder by the Tenant to the Landlord or any part
thereof shall remain unpaid 7 days after becoming due and payable then the
amount thereof or the balance for the time being unpaid shall (without
prejudice to the Landlord's right of re-entry hereinafter contained or any
47
other right or remedy of the Landlord) from the due date for payment
thereof and until the same is duly paid bear and carry interest (as well
after as before any judgment) at the rate of four per centum per annum
above the base rate for the time being of National Westminster Bank PLC
or (in the event of such rate ceasing to be published) at such
equivalent rate as the Landlord shall notify to the Tenant for the whole
period from the date upon which such sum ought to have been paid until
the date of payment Provided that if any such rent or payment of other
monies as aforesaid shall be declined by the Landlord so as not to waive
any breach of covenant the same shall be payable with interest thereon
at the rate aforesaid from the date the payment became due to the date
upon which payment is accepted by the Landlord AND the Tenant
accordingly HEREBY COVENANTS with the Landlord that in every such case
the Tenant will pay such interest thereon to the Landlord in addition to
the rents and other monies as aforesaid (as well after as before any
judgment) at the aforesaid rate
(2) If the rents hereby reserved or any part thereof shall remain unpaid for
fourteen days after becoming payable (whether formally demanded or not)
or if the Tenant or the Surety being a company unregistered company or
corporation shall be deemed to be unable to pay its debts within the
meaning of Section 123 of the Insolvency Xxx 0000 ("xxx 0000 Xxx") or
shall make a voluntary arrangement as referred to in Part I of the 1986
Act or shall have a petition for an administration order presented under
Part II of the 1986 Act or shall go into liquidation as defined in
Section 247(2) of the 1986 Act (other than a voluntary winding-up solely
for the purpose of amalgamation or reconstruction while solvent) or
shall have a receiver or manager (including an administrative receiver)
appointed of all or any part of its assets or undertaking whether under
Part III of the 1986 Act or otherwise or if a provisional liquidator is
appointed under Section 135 of the
48
1986 Act or if a proposal is made for a scheme of arrangement under
Section 425 of the Companies Xxx 0000 or if the Tenant or the Surety or
if more than one any of them being an individual an application is made
for an interim order or a proposal is made for a voluntary arrangement
under Part VIII of the 1986 Act or a Bankruptcy Petition is presented to
the Court or his circumstances are such that a Bankruptcy Petition could
be presented under Part IX of the 1986 Act or shall make any other
assignment for the benefit of or enter into any other arrangement with
his creditors or if the Tenant or the Surety or if more than one any of
them shall suffer any distress or execution to be levied on its goods at
the Demised Premises or if any covenant or condition on the part of the
Tenant or the Surety herein contained shall not be performed or observed
then and in any of the said events it shall be lawful for the Landlord
at any time thereafter to re-enter upon the Demised Premises or any part
thereof in the name of the whole and thereupon this demise shall
absolutely determine but without prejudice to any right of action or
remedy of the Landlord against the Tenant or the Surety in respect of
any arrears of rent or any breach of covenant or condition or the Tenant
or the Surety against the Landlord for breach of covenant
(3) If the Demised Premises or any material part thereof shall at any time or
times be destroyed or damaged by any of the Insured Risks so as to be unfit
for occupation and use then and in every such case (save as provided in
Clause 4(1)(a) hereof) the principal rent and the Service Rent hereby
reserved or a fair and just proportion thereof according to the nature and
extent of the damage sustained (as agreed between the Landlord and the
Tenant in writing within one month of such destruction or damage) shall be
suspended and cease to be payable until the Demised Premises have been
rebuilt or reinstated and made fit for occupation and use or until the
expiration of 3 years from the date of the damage or destruction if earlier
49
and failing such agreement or in case any dispute shall arise as to the
amount of such suspension and or such period the same shall be determined
by an independent Surveyor who shall act as an arbitrator in accordance
with the Arbitration Xxx 0000
(4) Notwithstanding the acceptance of or demand for rent or other monies
payable under this Lease and these Presents by or on behalf of the
Landlord with knowledge of a breach of any of the covenants on the part
of the Tenant in this Lease the Landlord's right to forfeit this Lease
on the ground of such breach shall remain in force and the Tenant shall
not in any proceedings for forfeiture be entitled to rely upon any such
acceptance or demand as a defence
(5) In any rebuilding or reinstatement of the Demised Premises following
damage or destruction by any of the Insured Risks the Landlord shall not be
obliged to lay out insurance moneys in rebuilding or reinstatement in
accordance with the previous sections elevations and specifications of the
Demised Premises but it shall be sufficient if they are restored so as to
provide the Tenant with premises reasonably equivalent to the Demised
Premises and thereafter all the covenants and conditions of this deed shall
apply to such accommodation mutatis mutandis as they applied to the
Demised Premises
(6) 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
lessee of the Landlord in respect of any property not comprised in this
Lease
(7) If any dispute arises between the Tenant and the Landlord's tenants or
50
occupiers of any adjoining or neighbouring land or premises as to any
easement right or privilege in connection with the use of the Demised
Premises and the adjoining or neighbouring land or premises or as to the
party or other walls separating the Demised Premises from the adjoining or
neighbouring land or premises or as to the amount of any contribution
towards the expenses or services used in common with any other property it
shall be decided by the Landlord's surveyor or in such manner as the
Landlord's surveyor shall direct
(8) The operation of Section 62 of the Law of Property Xxx 0000 shall be
excluded from this Lease and the only rights granted to the Tenant are
those expressly set out in this Lease and the Tenant shall not by virtue
of this Lease be deemed to have acquired or be entitled to and the
Tenant shall not during the Term acquire or become entitled by any means
whatsoever to any easement from or over or affecting any other land or
premises now or at any time hereafter belonging to the Landlord and not
comprised in this Lease
(9) The Landlord shall not be responsible to the Tenant or to anyone at the
Demised Premises expressly or by implication with the Tenant's authority
for any accident happening or injury suffered or for any damage to or
loss of any chattel sustained in the Demised Premises
(10) This Lease embodies the entire understanding of the parties relating to the
Demised Premises or to any of the matters dealt with by any of the
provisions of this Lease
(11) 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
51
behalf of the Landlord except any such statement or representation that is
expressly set out in this Lease or in written replies from the Landlord's
solicitors to enquiries raised by the Tenant's solicitors
(12) Whilst the Landlord is a limited company or other corporation all
licences consents approvals and notices required or permitted to be
given by the Landlord shall be sufficiently given if given under the
hand of a director or the secretary or other duly authorised officer of
the Landlord or by the surveyor on behalf of the Landlord
(13) If after the Tenant has vacated the Demised Premises on the expiry of
the Term any property of the Tenant remains in or on the Demised
Premises and the Tenant fails to remove it within twenty one days after
being requested in writing by the Landlord so to do or after using its
best endeavors the Landlord is unable to make such a request to the
Tenant within fourteen days of first attempting so to do:-
(a) the Landlord may as the agent of the Tenant sell such property
provided that the Tenant will indemnify the Landlord against any
liability incurred by the Landlord to any third party whose property
shall have been sold by the Landlord in the bona fide mistaken belief
(which shall be presumed unless the contrary be proved) that such
property belonged to the Tenant
(b) if the Landlord having made reasonable efforts is unable to locate
the Tenant the Landlord shall be entitled to retain the said
proceeds of sale absolutely unless the Tenant shall claim the same
within six months of the date upon which the Tenant vacated the
Demised Premises and
52
(c) the Tenant shall indemnify the Landlord against any damage
occasioned to the Demised Premises or any adjoining or neighbouring
land or premises and any action claims proceedings costs expenses
and demands made against the Landlord caused by or related to the
presence of the Tenant's property in or on the Demised Premises
(14) Except where any statutory provision prohibits the Tenant's right to
compensation being reduced or excluded by agreement the Tenant shall not
be entitled to claim from the Landlord on quitting the Demised Premises
any compensation under the 1954 Act
(15) The Landlord shall not in any event be liable to the Tenant in respect
of any failure of the Landlord to perform any of its obligations to the
Tenant hereunder in respect of the Estate Services (other than
insurance) whether expressed or implied unless and until the Tenant has
notified the Landlord of the facts giving rise to the failure and the
Landlord has failed within a reasonable length of time to remedy the
same and then in such case the Landlord shall be liable to compensate
the Tenant only for loss or damage sustained by the Tenant after such
reasonable time has lapsed
(16) This Lease is granted without prejudice to the provisions of any
previous lease under which the Tenant has hitherto held the Demised
Premises or any part thereof or to the provisions of any licence for
alterations or works granted pursuant thereto which last mentioned
provisions shall (so far as remaining to be performed and observed) be
read and construed as if contained in a licence supplemental to this
Lease and as if any reference to the term granted by such Lease were a
reference to the Term granted by this
53
Lease
(17) The parties to this Lease hereby agree and declare that:
(a) this is a new lease for the purposes of the Act
(b) any provisions in this Lease which are void pursuant to Section 25 of
the Act shall be severed from all remaining provisions and such
remaining provisions shall be preserved
(c) to the extent that any provision in this Lease extends beyond the
limitations set by the said Section 25 of the Act but if it did not so
extend it would remain unaffected by the said Section 25 the
provisions shall be deemed to be varied so as not to extend beyond
the said limitations
(18) In the event of the Landlord (at the request of the Tenant) granting any
concession as a result of which the Tenant is entitled to defer the
payment of any monies due then for all purposes in connection with this
Lease (and in particular in relation to Section 17 of the Act such
monies shall be deemed to fall due on the subsequent date agreed between
the Landlord and Tenant pursuant to the concession in lieu of the
earlier date
6. RENT REVIEW
(1) With effect from each Review Date the rent first hereinbefore reserved
shall be the amount payable (but for any abatement of rent) immediately
prior to that Review Date or (if greater) the Market Rent as agreed or
determined pursuant to this Clause 6
54
(2) The expression "the Market Rent" means the annual rack rent exclusive of
all outgoings which might reasonably be obtained in the open market
without the payment of a premium or a fine by a willing landlord from a
willing tenant for a lease of the whole of the Demised Premises with
vacant possession and fully fitted out and ready for occupation at the
commencement of the term for a term equal to the residue of the Term
remaining on the relevant Review Date or 5 years (whichever is the
longer period) (but commencing on the Review Date) upon the following
assumptions that:-
(A) all the provisions of this Lease on the part of the Tenant have been
duly observed and performed and on the assumption that the user
permitted by this Lease of all parts of the Demised Premises complies
with the Planning Acts
(B) on the relevant Review Date no damage to or destruction of the
Demised Premises or its services nor any damage to or destruction of
any part of the Demised Premises or with anything else in respect of
which the Tenant enjoys rights has occurred
(C) the Demised Premises are fit for immediate occupation and use and
that no work has been carried out on the Demised Premises by the
Tenant or its underlessees or their predecessors in title which has
diminished the rental value of the Demised Premises
(D) the Demised Premises may be used for all purposes falling within the
same Use Class or Use Classes under the Town and Country Planning
(Use Classes) Order 1987 (to which Clause 1(2)(iii) hereof shall not
55
apply) as the use permitted by these Presents and that all other
licences consents and permissions required to implement such use
have been obtained
(E) there has been a reasonable period in which to negotiate the terms
of the letting taking into account the nature of the Demised
Premises and the state of the market
(F) that the Demised Premises have been carpeted and decorated at the
cost of the Landlord to a high standard
there being disregarded (if otherwise applicable) any effect on rental
value by reason of:-
(i) the fact that the Tenant its underlessees or their respective
predecessors in title have been in occupation of the Demised
Premises and
(ii) any goodwill attached to the Demised Premises by reason of the
carrying-on thereat of the business of the Tenant or its
underlessees or their predecessors in title in their respective
businesses and
(iii) all improvements authorised by the Landlord or made by the Tenant
or its underlessees or their respective predecessors in title in
accordance with the terms of this Lease otherwise than at the cost
of or in pursuance of an obligation to the Landlord contained
herein or one imposed by the terms of this Lease and any such
works undertaken either (a) by the Tenant its underlessees or
their respective predecessors in title during any period of
occupation prior
56
to the grant of this Lease or any previous lease arising out of an
agreement to grant such term or (b) by any lessee or underlessee of
the Demised Premises before the commencement of the Term hereby
granted so long as the Landlord or its predecessor in title has not
had vacant possession of the relevant part of the Demised Premises
since the improvement was carried out
(iv) (so far as may be permitted by law) all restrictions whatsoever
relating to rent or its recoverability and all provisions relating
to any method of determination of rent contained in any enactment
and such lease shall in all other respects contain the same terms and
conditions mutatis mutandis (except as to the amount of rent but including
similar provisions for review thereof as are contained in this Clause 6) as
this present Lease
(3) The Market Rent shall be determined by agreement between the Landlord
and the Tenant but if by the date which is three months before the relevant
Review Date they shall not have agreed the same the Market Rent shall be
determined by an independent chartered surveyor of recognised standing
being a member of a leading firm of surveyors having been in practice
continuously for at least ten years in England immediately prior to the
relevant Review Date and having substantial recent experience in valuing
premises of a kind and character similar to the Demised Premises to be
agreed upon in writing by the Landlord and the Tenant or in default of such
agreement by the date which is one month before the relevant Review Date
to be nominated by the President or other officer duly authorised for that
purpose of the Royal Institution of Chartered Surveyors on the application
of either the Landlord or the Tenant such surveyor to act as an arbitrator
in
57
accordance with the Arbitration Xxx 0000 and the costs of such
determination shall be in the award of such surveyor (the Surveyor)
(4) If the Surveyor shall fail to determine the Market Rent in the manner
hereinbefore provided within four months of his appointment or if he
shall relinquish his appointment or die or if it shall become apparent
that for any reason he will be unable to complete his duties hereunder
within the said period of four months then the Landlord and the Tenant
may agree upon or either of them may apply to the said President or
other officer for a substitute to be appointed in his place which
procedure may be repeated as many times as necessary
(5) In the event of the Landlord and the Tenant not having reached agreement
or the Surveyor's award not having been published or the Surveyor or the
Landlord or the Tenant making application to the Court whether before or
after such publication and such application not having been finally
determined by the relevant Review Date for any reason whatever then in
respect of the period of time ("the interval") between the relevant
Review Date and ending on the date on which agreement is reached or such
award is published or such application is finally determined the Tenant
shall pay to the Landlord in the manner provided in this Lease the rent
payable immediately prior to the relevant Review Date ("the Current
Rent") PROVIDED THAT at the expiration of the interval there shall be
due as a debt payable by the Tenant to the Landlord on demand the amount
by which the Market Rent agreed upon by the Landlord and the Tenant or
determined by the said surveyor or the Court as the case may be exceeds
the Current Rent together with interest on such amount at two per cent
over the base rate of National Westminster Bank Plc or (in the event of
such rate ceasing to be published) at such comparable rate as the
Landlord shall notify
58
to the Tenant but in respect of both the said excess and the said
interest on it duly apportioned on a daily basis in respect of the
interval
(6) If at any time the Tenant shall be obliged legally or otherwise to
comply with any enactment (which expression shall include any Act of
Parliament now or hereafter in force and any instrument regulation or
order made thereunder or deriving validity therefrom) dealing with the
control of rent and which shall restrict or modify the Landlord's right
to increase the rent in accordance with the foregoing provisions of this
Clause or which shall restrict the right of the Landlord to demand or
accept payment of the full amount of the yearly rent for the time being
payable hereunder then the Landlord shall on each occasion that any such
enactment is removed relaxed or modified be entitled on giving not less
that one month's notice in writing to the Tenant expiring after the date
of such removal relaxation or modification to introduce a rent review
date which shall be the date of expiration of such notice and from and
after such review date until the next Review Date the yearly rent then
payable hereunder shall be such as shall be agreed or determined in
accordance (mutatis mutandis) with the foregoing provisions of this
Clause 6 Provided that and for the avoidance of doubt it is hereby
declared that notwithstanding the date of a review as hereinbefore
provided the Market Rent under this present provision shall be
calculated as at the Review Date immediately preceding the date of the
Landlord's notice
(7) The revised rent agreed or determined pursuant to this Clause 6 shall be
endorsed by way of memorandum on this Lease and on the counterpart
thereof and signed by or on behalf of the Landlord and the Tenant
(8) In this clause time shall not be of the essence
59
7. SERVICE OF NOTICES AND JURISDICTION
(1) THESE Presents shall incorporate the provisions as to notices contained in
Section 196 of the Law of Property Xxx 0000 as amended by the Recorded
Delivery Service Xxx 0000 except that Section 196 shall be deemed to be
amended as follows:-
(a) the final words of Section 196(4) "and that service... be
delivered" shall be deleted and there shall be substituted "...and
that service shall be deemed to be made on the third working day
after the registered letter has been posted "working day" meaning
any day from Monday to Friday (inclusive) other than Christmas Day,
Good Friday and any statutory bank holiday"
(b) any notice or document shall also be sufficiently served on a party
if served on solicitors who have acted for that party in relation
to this Lease or the Demised Premises at any time within the year
preceding the service of the notice or document or who have been
appointed by Clause 7(2)(c) or (d) below
(c) any notice or document shall also be sufficiently served if sent by
telex or fax to the party to be served (or its Solicitors where
paragraph (b) applies) and service in such case shall be deemed to
be made on the day of transmission if transmitted before 4 pm on a
working day but otherwise on the next following working day
(2) (a) The Landlord Tenant and the Surety respectively acknowledge and
declare that this Lease and the rights and obligations of the
Landlord Tenant and the Surety hereunder are governed by English law
60
(b) The Landlord Tenant and the Surety irrevocably and unconditionally
agree that any proceedings in relation to this Lease may and shall
be brought in the English Courts and submit to the jurisdiction of
the English Courts in respect of any such proceedings
8. GUARANTEE PROVISION
(1) The Surety (if any) covenants with the Landlord as primary obligor and
not merely by way of guarantee (for the benefit of the Landlord and of
the person in whom from time to time the reversion immediately expectant
upon the determination of the Term is vested without the need for any
express assignment) that
(a) during such period as the Tenant is bound by the Lease covenants
(including any period in respect of which the Tenant is liable to
perform the Lease covenants pursuant to any authorised guarantee
agreement entered into by the Tenant) the Tenant shall punctually
pay the rents hereby reserved and perform the covenants and other
provisions of the Lease and in case of default the Surety will pay the
rents hereby reserved and perform the covenants and provisions in
respect of which the Tenant is in default and make good to the
Landlord on demand and indemnify the Landlord against all losses
damages costs and expenses thereby arising or incurred by the
Landlord
(b) the liability of the Surety under Clause 8(1)(a) hereof shall not be
affected in any way by:
61
(i) any neglect or forbearance of the Landlord in enforcing
payment of the rents hereby reserved or observance or
performance of the covenants and provisions of the Lease
(ii) any time or indulgence given to the Tenant by the Landlord
(iii) any refusal by the Landlord to accept rent from the Tenant
following a breach of covenant by the Tenant
(iv) any agreement with the Tenant any licence or consent granted
to the Tenant or any variation in the terms of the Lease
(v) the death of the Tenant (if an individual) or the dissolution
of the Tenant (if a company)
(vi) a surrender of part of the Demised Premises except that the
Surety will have no liability in relation to the surrendered
part in respect of any period following the date of surrender
(vii) any other act matter or thing apart from the express release in
writing of the Surety
(c) if during the Term the Tenant (being a company) enters into
liquidation or (being an individual) becomes bankrupt and the
liquidator or the trustee in bankruptcy disclaims the Lease or if
during the Term the Tenant (being a company) is dissolved or ceases
to exist or is struck off the Register of Companies the Surety shall
upon written notice from the Landlord given within four months
after the date of disclaimer or dissolution or ceasing to exist accept
a
62
new lease of the Demised Premises for a term equal to the residue
then remaining unexpired of the term hereby demised at the rents
then being paid under this Lease and otherwise subject to the same
covenants and provisions as in this Lease (without however requiring
any other person to act as surety) such new lease to take effect from
the date of disclaimer or dissolution or ceasing to exist and to be
granted at the cost of the Surety who shall execute and deliver to the
Landlord a counterpart of it
(d) if this Lease is disclaimed or the Tenant (being a company) is
dissolved or ceases to exist and for any reason the Landlord does not
require the Surety to accept a new lease pursuant to Clause 8(1)(c)
hereof the Surety shall pay to the Landlord on demand an amount
equal to the difference between any money received by the Landlord
for the use or occupation of the Demised Premises and the rents (if
higher) which would have been payable had the Lease not been
disclaimed or the dissolution or ceasing to exist not occurred for
the period commencing with the date of disclaimer or dissolution or
ceasing to exist and ending upon the date nine months after the date
of disclaimer or dissolution or ceasing to exist or (if earlier) the
date upon which the Demised Premises are re-let
(e) for the purposes of this clause references to the Tenant are to the
Tenant in relation to whom the Surety's guarantee is given but not to
a lawful assignee of that Tenant
9. SERVICE CHARGE
(1) The Landlord shall as soon as convenient after each Account Date prepare
63
an account showing the Estate Service Expenditure for the Service Period
ended on that Account Date and containing a fair summary of the
expenditure referred to but giving credit for any sums payable to the
Landlord from any owner or occupier of adjoining land towards the cost
of provision of Estate Services and upon the account being certified by
the Landlord's managing agents it shall be conclusive evidence for the
purposes of this Lease of all matters of fact referred to except in case
of manifest error
(2) The Tenant shall pay the Landlord on account of Service Rent the
Provisional Sum in relation to each Service Period the first payment (being
a proportionate sum in respect of the period commencing on the Possession
Date and ending immediately before the quarter day next after the date
hereof) to be made on the date hereof and the subsequent payments to be
made by equal installments in advance on the usual quarter days
(3) If the Service Rent for any Service Period:-
(a) exceeds the Provisional Sum for that Service Period the excess shall
be due to the Landlord on demand; or
(b) is less than the Provisional Sum for that Service Period the
overpayment shall be credited to the Tenant against subsequent
payments on account of Service Rent until the overpayment is
balanced or following the expiry of the Term shall be repaid to the
Tenant
(4) In respect of the Service Rent the relevant proportion applicable to the
Demised Premises shall be calculated primarily on a comparison at any
relevant time of
64
(a) the net internal floor area as defined in the Code of Measuring
Practice 4th edition RICS/ISVA 1993 of the buildings on the Demised
Premises and
(b) the aggregate net internal floor area of the buildings on the Estate
or such other method of calculation as the Landlord shall adopt and
notify to the Tenant in writing provided that if the Tenant objects to
such alternative method of calculation the matter shall be referred to
an independent expert jointly appointed by the Landlord and the Tenant
or failing agreement as to his appointment by the President or next
available officer of the Royal Institution of Chartered Surveyors and if
it shall appear that for whatever reason such expert shall be unable or
unwilling to give his decision within one month of his appointment then
either the Landlord or the Tenant may apply to the said President for
another expert to be appointed in his place and this procedure shall be
repeated as many times as shall be required and the costs of the expert
and of his appointment shall form part of the Service Expenditure
(5) The Tenant is entitled to inspect the service charge records and vouchers
and take copies thereof at its cost once a year after the service charge
accounts have been certified within one month of the Tenant receiving such
certified accounts
10. AGREEMENT FOR LEASE
It is hereby certified that there is no Agreement for Lease to which this
Lease gives effect
65
IN WITNESS whereof the Landlord and the Tenant have executed this Deed the
day and year first before written
THE FIRST SCHEDULE
RIGHTS GRANTED
1. The right for the Tenant and its underlessees and occupiers for the time
being of the Demised Premises and their respective servants agents and
visitors in common with the Landlord and all others authorised by the
Landlord and all other persons so entitled to the free and uninterrupted
passage of water soil electricity gas telephone and other services and
supplies to and from the Demised Premises through the Conducting Media
in on or under the Estate and serving the Demised Premises
2. The right of way with or without vehicles at all times and for all proper
purposes in connection with the Tenant's use and enjoyment of the Demised
Premises over the estate roadway shown coloured xxxxx on the Plan
3. The right of entry upon not less than 48 hours prior written notice (save
in case of emergency) onto the adjoining or neighboring land or premises
forming part of the Estate with or without contractors plant materials and
equipment to carry out works repairs and alterations to the Demised
Premises or the Conducting Media exclusively serving the same insofar as
such works cannot be conveniently carried out without such entry the
Tenant or the person exercising such rights making good all damage caused
and causing as little inconvenience and disturbance as possible
4. The right to place a paladin on the refuse area shown coloured yellow on
66
Plan A subject to the Tenant complying with clause 3(21) hereof and the
Regulations relating thereto
THE SECOND SCHEDULE
EXCEPTIONS AND RESERVATIONS OUT OF THE DEMISE
The following rights and easements are excepted and reserved out of the Demised
Premises unto the Landlord and the owners and occupiers of the Estate and any
adjoining or neighboring land or premises and all other persons authorised by
the Landlord or having the like rights and easements
1. The free and uninterrupted passage of water soil electricity gas telephone
and other services and supplies to and from the Estate and/or the adjoining
or neighbouring land or premises through the Conducting Media serving
the Demised Premises and the Estate and/or such adjoining or neighbouring
land or premises now laid or during the Term to be laid in on under or
passing through the Demised Premises
2. The right for the Landlord and all authorised persons at all reasonable
times upon 48 hours prior notice (except in the case of emergency) to
enter into and upon the Demised Premises with or without servants
contractors agents plant and equipment for the purposes of assessing the
state and condition thereof and/or for the purpose of:
(a) surveying measuring or valuing the Demised Premises
(b) reading electricity water and other check meters installed within the
Demised Premises
67
(c) for the preparation of a schedule of fixtures and fittings in or on
the Demised Premises
(d) maintaining renewing cleaning repairing or rebuilding any adjoining
or neighbouring land or premises in so far as such works cannot be
conveniently carried out without entering upon the Demised
Premises
(e) remedying any breach of covenant by the Tenant after failure by the
Tenant to do so in accordance with the provisions of this Lease
(f) obtaining access to and egress from the electricity substation shown
coloured purple on Plan B
the Landlord or all persons exercising such rights making good all
physical damage thereby occasioned to the Demised Premises without
liability to pay any compensation to the Tenant
3. The right to build rebuild or execute any other works or alterations or
consent to any person building rebuilding or executing any other works or
alterations upon any adjoining or neighbouring land or premises
notwithstanding that the access of light or air to the Demised Premises may
be thereby restricted or interfered with including the right to erect or
construct any buildings on any adjoining or neighbouring land or premises
the person or persons exercising such right making good all physical
damage thereby occasioned in such manner as the Landlord or the person or
persons exercising such right may think fit without any compensation or
damages being payable to the Tenant and without the Tenant being entitled
to make any claim or commence any proceedings in respect thereof
68
4. All rights of light air and other easements and rights (but without
prejudice to those expressly hereinbefore granted to the Tenant) now or
hereafter belonging to or enjoyed by the Demised Premises from or over any
adjoining or neighbouring land or premises
5. The right of support shelter and protection and all other easements and
rights now or hereafter belonging to or enjoyed by all adjoining or
neighbouring land or premises (if any)
6. The right at any time after giving not less than forty-eight hours' notice
(except in emergency) to enter and remain upon the Demised Premises for
the purpose of complying with the Landlord's covenants herein contained
and for the purpose of constructing repairing maintaining altering
cleansing examining or testing the Conducting Media serving any adjoining
or neighbouring land or premises the Landlord or the person or persons
exercising such right making good any physical damage thereby caused to
the Demised Premises but without liability to pay any compensation to the
Tenant
THE THIRD SCHEDULE
ENCUMBRANCES
69
1. All matters contained or referred to in the Property and Charges Registers
of Title Numbers BM230909 and BM230905 as at the date hereof other than
financial charges
2. The covenants agreements stipulations rights exceptions and reservations in
a Deed of Exchange dated the 24th day of July 1997 made between the
Landlord (1) and Vishay Components (UK) Limited (2)
SIGNED as a Deed by COMLAND )
INDUSTRIAL AND COMMERCIAL )
PROPERTIES LIMITED) )
acting by [a Director and its )
Secretary] [two Directors] )
DIRECTOR: X. X. Xxxxxx
DIRECTOR/SECRETARY: X. Xxxxx
DATED: 12TH AUGUST 1998
COMLAND INDUSTRIAL AND COMMERCIAL
PROPERTIES LIMITED (1)
INSIGNIA SOLUTIONS PLC (2)
RENT DEPOSIT DEED
as additional Security for the
performance of the Tenant's
covenants contained in a lease of
Apollo House. The Mercury Centre
Wooburn Green High Wycombe
Buckinghamshire
[MANCHES LOGO]
Manches & Co 0 Xxxxxxxxx Xxxxxx Xxxxxx XX0 0XX
THIS DEED is made the 12th day of August One thousand nine hundred and
ninety-eight
BETWEEN
(1) COMLAND INDUSTRIAL AND COMMERCIAL PROPERTIES LIMITED whose registered
office is at Riverside House Riverside Holtspur Lane Wooburn Green High
Wycombe Buckinghamshire HP10 0TJ ("the Landlord") (Company Registration
Number 2126351) and
(2) INSIGNIA SOLUTIONS Plc whose registered office is at Xxxxxxxxxx Xxxxx
Xxxxxx Xxxx Xxxx Xxxxxxx Xxxxxxxxxxxxxxx XX00 0XX (Company Registration
Number 01961960) ("the Tenant")
NOW THIS DEED WITNESSES as follows:
1. DEFINITIONS AND INTERPRETATION
In this Clause and in this Deed the following expressions shall bear the
following meanings:
1.1 "the Lease" means a lease of even date herewith made between the Landlord
(1) and the Tenant (2) of the property known as Apollo House The Mercury
Centre Wycombe Lane Wooburn Green High Wycombe Buckinghamshire
1.2 "the Landlord" "the Tenant" and "the Term" shall carry the meanings
ascribed to them by the Lease
1.3 "the Landlord's Solicitors" mean Manches & Co 0 Xxxxxxxxx Xxxxxx Xxxxxx
XX0 0XX
1.4 "the Initial Deposit" means L105,000 plus VAT deposited by the Tenant
as security for the performance of the obligations on its part contained
in the Lease
1.5 "the Deposit Account" means the interest earning deposit account opened by
the Landlord's Solicitors at Lloyds Bank Plc Law Courts Branch 000 Xxxxxx
Xxxxxx XX0X 0XX ("the Bank") on or before the date of this Deed and in
which the Landlord's Solicitors placed the Initial Deposit
2
1.6 "the Deposit Balance" means the amount from time to time standing to the
credit of the Deposit Account
1.7 "default" means any failure by the Tenant to pay (whether or not any
formal demand has been made) the whole or any part of the rents reserved
by the Lease or any money (including interest) payable to the Landlord
pursuant to the Lease or any expense incurred by the Landlord or due to
the Landlord in consequence of any failure by the Tenant to observe and
perform the covenants obligations of and the conditions binding the
Tenant contained in the Lease or the liquidation of the Tenant or the
disclaimer of the Lease by the Tenant's liquidator
2. LANDLORD'S SOLICITORS INSTRUCTIONS
The Landlord and the Tenant irrevocably instruct the Landlord's
Solicitors by this Deed to act as stakeholders in the operation of the
Deposit Account in accordance with this Deed and in particular to act in
accordance with this Deed in:
2.1 the making of payments into the Deposit Account
2.2 the withdrawal of sums from the Deposit Account and
2.3 accounting to the Landlord and the Tenant for money due to either of them
from the Deposit Account
2.4 sending to the Tenant statements showing the Deposit Balance and any
interest accruing to the Deposit Account at intervals of not less than
once in each year of the term demised by the Lease
3. DURATION OF DEPOSIT ARRANGEMENTS
3.1 The Deposit Account shall be maintained until whichever is the earlier
of the following:
3.1.1 the date of expiration or sooner determination of the Term
(save by way of disclaimer or forfeiture) or
3
3.1.2 the date upon which the Tenant shall assign the Lease with the
consent of the Landlord to an assignee acceptable to the
Landlord in accordance with Clause 3(17) of the Lease
3.1.3 the date 14 days after the Tenant has provided to the Landlord
unqualified Audited Accounts drawn up on the basis of UK
GAAP by the Tenant's auditors showing profits after tax of not
less than three times the rent first reserved in the Lease plus
VAT for three consecutive financial years each of not less than
twelve months duration
3.2 The Deposit Account shall be closed upon the happening of any of the
events mentioned in clauses 3.1.1 3.1.2 and 3.1.3 and the Deposit
Balance shall be released to the Tenant after first being applied by
payment to the Landlord in satisfaction of all claims made by the
Landlord against the Tenant arising out of default by the Tenant
4. CHARGE OF THE DEPOSIT ACCOUNT
4.1 The Tenant warrants to the Landlord that the Initial Deposit is free
from any charge or encumbrance save as mentioned in clause 4.2
4.2 The Tenant with full title guarantee charges its interest in the Deposit
Account and all money from time to time withdrawn from the Deposit
Account in accordance with this Deed
4.2.1 until such time as the Deposit Account shall be closed in
accordance with clause 3 or clause 9 and
4.2.2 as security for money payable to the Landlord in the event
of default
4.2.3 as security for any loss of mesne profits and other losses
arising in consequence of forfeiture or disclaimer of the Lease
4.3 The Tenant hereby covenants that it shall:-
4
4.3.1 within 14 days of entry into this Deed procure registration of
the charge mentioned in Clause 4.2 pursuant to the Companies
Xxx 0000 (section 395) and
4.3.2 execute any document or take any action which the Landlord may
reasonably specify in order to perfect the security referred
to in clause 4.2
4.4 The security referred to in clause 4.2 is in addition to and shall not
be merged with or prejudice or affect or be affected by any other
security interest of the Landlord as regards the Tenant
5. REMEDIES OF THE LANDLORD
5.1 The Landlord shall be entitled at any time to require the Landlord's
Solicitors to draw upon the Deposit Account in payment to the Landlord
of any amount not exceeding any sum due to the Landlord arising out of
default by the Tenant if:
5.1.1 the Landlord shall have previously given to the Tenant not
less than 14 days notice in writing of the Landlord's
intention to procure any withdrawal from the Deposit Account
and the notice shall have specified the default to which the
withdrawal relates and
5.1.2 the Tenant shall not have remedied the default complained of
by the expiration of the notice
5.2 The Tenant by way of security for the proper performance of the Tenant's
covenants and obligations contained in this Deed hereby appoints the
Landlord (or delegates of the Landlord) to act as the Tenant's attorney
to take any action in the name of the Tenant or otherwise which the
Landlord may reasonably and properly specify for the purposes of
ensuring such performance
6. MAINTENANCE OF THE INITIAL DEPOSIT
6.1 The Tenant covenants that if the Landlord shall before the date of
closure of the Deposit Account in accordance with clause 3 receive a
payment from the
5
Deposit Account in accordance with clause 5 then the Tenant shall within
21 days pay to the Landlord's Solicitors an amount equal to the sum so
received by the Landlord for the Landlord's Solicitors to deposit in the
Deposit Account
6.2 If and whenever a review of rent pursuant to the Lease shall take place
the Tenant will within seven days of the date of ascertainment of the
amount of the increased rent make a payment to the Landlord for the
credit of the Deposit Account of a sum equivalent to the difference
between the annual rate of rent prior to such review and the annual
rate of rent as reviewed plus VAT and the sum so paid by the Tenant
shall form part of the Deposit Balance and be treated for the purposes
of this Deed as such
7. INTEREST
7.1 The interest accruing upon the Deposit Balance shall be left in the Deposit
Account and form part of the Deposit Account
7.2 The Tenant (acting on its own behalf or by its Solicitors) shall at
reasonable intervals (of not less then 6 months) following the date of
this Deed be entitled by notice in writing to require the Landlord's
Solicitors to draw upon the Deposit Account in payment to the Tenant of
an amount equal to the net interest which at the date of such notice has
accrued to the Deposit Balance save that no such payment shall be made:
7.2.1 if there shall at such date be any subsisting default by the
Tenant or
7.2.2 to the extent that such payment would cause the Deposit
Balance to be less than the Initial Deposit plus any payment
made by the Tenant pursuant to clause 6.2 hereof
7.3 It is agreed that without limiting clause 7.2 the Landlord's Solicitors
may within their entire discretion and as a matter of convenience for so
long as there shall be no dispute between the Landlord and the Tenant
affecting the operation of this Deed make arrangements with the
solicitors acting for the Tenant for interest to be paid out of the
Deposit Account in a manner different to that prescribed by Clause 7.2
6
8. DECLARATIONS
8.1 The liability of neither the Landlord nor the Tenant nor of any guarantor
pursuant to the Lease from time to time shall be limited to the Deposit
Balance
8.2 The rights of the Landlord under this Deed are given without limitation
of the rights of the Landlord pursuant to the Lease
8.3 The proviso for re-entry contained in the Lease shall be exercisable as
well upon any breach of any covenant or obligation contained in this
Deed as on the happening of any of the events mentioned in the Lease
9. FORFEITURE OR DISCLAIMER
If the Lease shall be forfeited or disclaimed the Deposit Balance shall
continue to be available to the Landlord in the manner hereinbefore
provided until it shall be exhausted in accordance with the terms of
this Deed or until there shall be no further liability of the Tenant to
the Landlord or until the date eighteen months after the date of
forfeiture or disclaimer (whichever is the earlier) whereupon as soon as
reasonably practicable any remaining balance in the Deposit Account
shall be repaid to the Tenant
10. ASSIGNMENT OF REVERSION
The Landlord shall not be liable to the Tenant under this deed after the
Landlord shall have parted with its reversion to the Lease provided that
the assignee enters into a Deed in substantially the same terms mutatis
mutandis to this Deed with the Tenant (save as to the parties).
Accordingly if the Landlord disposes of its reversion to the Lease as
aforesaid then the Deposit Balance shall forthwith be paid to the
Solicitors acting for the assignee of the reversion to hold upon the
terms of this deed and the liability of the Landlord under this deed
shall thereupon cease and determine and the Landlord shall within 14
days of such payment give notice to the Tenant of the details of the
solicitors for the assignee and of the change in the details of the
Deposit Account
7
IN WITNESS whereof the Landlord and the Tenant have caused their respective
Common Seals to be affixed to this Deed the day and year first hereinbefore
written
SIGNED as a Deed by COMLAND )
INDUSTRIAL AND COMMERCIAL )
PROPERTIES LIMITED acting by )
[a Director and its Secretary] )
[two Directors]
X. X. Xxxxxx DIRECTOR
X. Xxxxx DIRECTOR/SECRETARY
DATED: 12TH AUGUST 1998
COMLAND INDUSTRIAL AND
COMMERCIAL PROPERTIES LIMITED (1)
INSIGNIA SOLUTIONS Plc (2)
----------------------
COLLATERAL WARRANTY
RELATING TO
APOLLO HOUSE THE MERCURY CENTRE
WYCOMBE LANE WOOBURN GREEN
HIGH WYCOMBE BUCKINGHAMSHIRE
----------------------
[MANCHES LOGO]
Manches & Co 0 Xxxxxxxxx Xxxxxx Xxxxxx XX0 0XX
THIS DEED is made the 12th day of August One thousand nine hundred and
ninety-eight
BETWEEN
(1) COMLAND INDUSTRIAL AND COMMERCIAL PROPERTIES LIMITED whose registered
office is at Riverside House Riverside Holtspur Lane Wooburn Green High
Wycombe Buckinghamshire HP10 0TJ ("the Landlord") (Company Registration
Number 2126351) and
(2) INSIGNIA SOLUTIONS Plc whose registered office is at Xxxxxxxxxx Xxxxx
Xxxxxx Xxxx Xxxx Xxxxxxx Xxxxxxxxxxxxxxx XX00 0XX (Company Registration
Number 01961960) ("the Tenant")
NOW THIS DEED WITNESSES as follows:
1. DEFINITIONS AND INTERPRETATION
In this Clause and in this Deed the following expressions shall bear the
following meanings:
1.1 "the Lease" means a lease of even date herewith made between the Landlord
(1) and the Tenant (2) of the property known as Saturn House The Mercury
Centre Wycombe Lane Wooburn Green High Wycombe Buckinghamshire
1.2 "the Landlord" "the Tenant" and "the Term" shall carry the meanings
ascribed to them by the Lease
1.3 "the Landlord's Solicitors" mean Manches & Co 0 Xxxxxxxxx Xxxxxx Xxxxxx
XX0 0XX
1.4 "the Initial Deposit" means L121,000 plus VAT deposited by the Tenant as
security for the performance of the obligations on its part contained in
the Lease
1.5 "the Deposit Account" means the interest earning deposit account opened by
the Landlord's Solicitors at Lloyds Bank Plc Law Courts Branch 000 Xxxxxx
Xxxxxx XX0X 0XX ("the Bank") on or before the date of this Deed and in
which the Landlord's Solicitors placed the Initial Deposit
2
1.6 "the Deposit Balance" means the amount from time to time standing to the
credit of the Deposit Account
1.7 "default" means any failure by the Tenant to pay (whether or not any formal
demand has been made) the whole or any part of the rents reserved by the
Lease or any money (including interest) payable to the Landlord pursuant to
the Lease or any expense incurred by the Landlord or due to the Landlord in
consequence of any failure by the Tenant to observe and perform the
covenants obligations of and the conditions binding the Tenant contained in
the Lease or the liquidation of the Tenant or the disclaimer of the Lease
by the Tenant's liquidator
2. LANDLORD'S SOLICITORS INSTRUCTIONS
The Landlord and the Tenant irrevocably instruct the Landlord's
Solicitors by this Deed to act as stakeholders in the operation of the
Deposit Account in accordance with this Deed and in particular to act in
accordance with this Deed in:
2.1 the making of payments into the Deposit Account
2.2 the withdrawal of sums from the Deposit Account and
2.3 accounting to the Landlord and the Tenant for money due to either of them
from the Deposit Account
2.4 sending to the Tenant statements showing the Deposit Balance and any
interest accruing to the Deposit Account at intervals of not less than
once in each year of the term demised by the Lease
3. DURATION OF DEPOSIT ARRANGEMENTS
3.1 The Deposit Account shall be maintained until whichever is the earlier
of the following:
3.1.1 the date of expiration or sooner determination of the Term
(save by way of disclaimer or forfeiture) or
3
3.1.2 the date upon which the Tenant shall assign the Lease with the
consent of the Landlord to an assignee acceptable to the
Landlord in accordance with Clause 3(17) of the Lease
3.1.3 the date 14 days after the Tenant has provided to the Landlord
unqualified Audited Accounts drawn up on the basis of UK GAAP
by the Tenant's auditors showing profits after tax of not less
than three times the rent first reserved in the Lease plus VAT
for three consecutive financial years each of not less than
twelve months duration
3.2 The Deposit Account shall be closed upon the happening of any of the events
mentioned in clauses 3.1.1 3.1.2 and 3.1.3 and the Deposit Balance shall be
released to the Tenant after first being applied by payment to the Landlord
in satisfaction of all claims made by the Landlord against the Tenant
arising out of default by the Tenant
4. CHARGE OF THE DEPOSIT ACCOUNT
4.1 The Tenant warrants to the Landlord that the Initial Deposit is free
from any charge or encumbrance save as mentioned in clause 4.2
4.2 The Tenant with full title guarantee charges its interest in the Deposit
Account and all money from time to time withdrawn from the Deposit
Account in accordance with this Deed
4.2.1 until such time as the Deposit Account shall be closed in
accordance with clause 3 or clause 9 and
4.2.2 as security for money payable to the Landlord in the event of
default
4.2.3 as security for any loss of mesne profits and other losses
arising in consequence of forfeiture or disclaimer of the Lease
4.3 The Tenant hereby covenants that it shall:-
4
4.3.1. within 14 days of entry into this Deed procure registration of
the charge mentioned in Clause 4.2 pursuant to the Companies
Xxx 0000 (section 395) and
4.3.2 execute any document or take any action which the Landlord may
reasonably specify in order to perfect the security referred
to in clause 4.2
4.4 The security referred to in clause 4.2 is in addition to and shall not
be merged with or prejudice or affect or be affected by any other
security interest of the Landlord as regards the Tenant
5. REMEDIES OF THE LANDLORD
5.1 The Landlord shall be entitled at any time to require the Landlord's
Solicitors to draw upon the Deposit Account in payment to the Landlord
of any amount not exceeding any sum due to the Landlord arising out of
default by the Tenant if:
5.1.1 the Landlord shall have previously given to the Tenant not
less than 14 days notice in writing of the Landlord's
intention to procure any withdrawal from the Deposit Account
and the notice shall have specified the default to which the
withdrawal relates and
5.1.2 the Tenant shall not have remedied the default complained of
by the expiration of the notice
5.2 The Tenant by way of security for the proper performance of the Tenant's
covenants and obligations contained in this Deed hereby appoints the
Landlord (or delegates of the Landlord) to act as the Tenant's attorney
to take any action in the name of the Tenant or otherwise which the
Landlord may reasonably and properly specify for the purposes of
ensuring such performance
6. MAINTENANCE OF THE INITIAL DEPOSIT
6.1 The Tenant covenants that if the Landlord shall before the date of
closure of the Deposit Account in accordance with clause 3 receive a
payment from the
5
Deposit Account in accordance with clause 5 then the Tenant shall within
21 days pay to the Landlord's Solicitors an amount equal to the sum so
received by the Landlord for the Landlord's Solicitors to deposit in the
Deposit Account
6.2 If and whenever a review of rent pursuant to the Lease shall take place
the Tenant will within seven days of the date of ascertainment of the
amount of the increased rent make a payment to the Landlord for the
credit of the Deposit Account of a sum equivalent to the difference
between the annual rate of rent prior to such review and the annual rate
of rent as reviewed plus VAT and the sum so paid by the Tenant shall
form part of the Deposit Balance and be treated for the purposes of this
Deed as such
7. INTEREST
7.1 The interest accruing upon the Deposit Balance shall be left in the Deposit
Account and form part of the Deposit Account
7.2 The Tenant (acting on its own behalf or by its Solicitors) shall at
reasonable intervals (of not less than 6 months) following the date of
this Deed be entitled by notice in writing to require the Landlord's
Solicitors to draw upon the Deposit Account in payment to the Tenant of
an amount equal to the net interest which at the date of such notice has
accrued to the Deposit Balance save that no such payment shall be made:
7.2.1 if there shall at such date be any subsisting default by the
Tenant or
7.2.2 to the extent that such payment would cause the Deposit
Balance to be less than the Initial Deposit plus any payment
made by the Tenant pursuant to clause 6.2 hereof
7.3 It is agreed that without limiting clause 7.2 the Landlord's Solicitors
may within their entire discretion and as a matter of convenience for so
long as there shall be no dispute between the Landlord and the Tenant
affecting the operation of this Deed make arrangements with the
solicitors acting for the Tenant for interest to be paid out of the
Deposit Account in a manner different to that prescribed by Clause 7.2
6
8. DECLARATIONS
8.1 The liability of neither the Landlord nor the Tenant nor of any guarantor
pursuant to the Lease from time to time shall be limited to the Deposit
Balance
8.2 The rights of the Landlord under this Deed are given without limitation
of the rights of the Landlord pursuant to the Lease
8.3 The proviso for re-entry contained in the Lease shall be exercisable as
well upon any breach of any covenant or obligation contained in this
Deed as on the happening of any of the events mentioned in the Lease
9. FORFEITURE OR DISCLAIMER
If the Lease shall be forfeited or disclaimed the Deposit Balance shall
continue to be available to the Landlord in the manner hereinbefore
provided until it shall be exhausted in accordance with the terms of
this Deed or until there shall be no further liability of the Tenant to
the Landlord or until the date eighteen months after the date of
forfeiture or disclaimer (whichever is the earlier) whereupon as soon as
reasonably practicable any remaining balance in the Deposit Account
shall be repaid to the Tenant
10. ASSIGNMENT OF REVERSION
The Landlord shall not be liable to the Tenant under this deed after the
Landlord shall have parted with its revision to the Lease provided that
the assignee enters into a Deed in substantially the same terms mutatis
mutandis to this Deed with the Tenant (save as to the parties).
Accordingly if the Landlord disposes of its reversion to the Lease as
aforesaid then the Deposit Balance shall forthwith be paid to the
Solicitors acting for the assignee of the reversion to hold upon the
terms of this deed and the liability of the Landlord under this deed
shall thereupon cease and determine and the Landlord shall within 14
days of such payment give notice to the Tenant of the details of the
solicitors for the assignee and of the change in the details of the
Deposit Account
7
IN WITNESS whereof the Landlord and the Tenant have caused their respective
Common Seals to be affixed to this Deed the day and year first hereinbefore
written
SIGNED as a Deed by COMLAND )
INDUSTRIAL AND COMMERCIAL )
PROPERTIES LIMITED acting by )
[a Director and its Secretary] )
[two Directors] )
X. X. Xxxxxx DIRECTOR
X. Xxxxx DIRECTOR/SECRETARY
DATED: 12TH AUGUST 1998
COMLAND INDUSTRIAL AND
COMMERCIAL PROPERTIES LIMITED (1)
INSIGNIA SOLUTIONS Plc (2)
--------------------
COLLATERAL WARRANTY
Relating to
Apollo House The Mercury Centre
Wycombe Lane Wooburn Green
High Wycombe Buckinghamshire
--------------------
[MANCHES LOGO]
Manches & Co 0 Xxxxxxxxx Xxxxxx Xxxxxx 0X0 0XX
THIS DEED OF WARRANTY is made the 12th day of August One thousand nine
hundred and ninety-eight BETWEEN COMLAND INDUSTRIAL AND COMMERCIAL PROPERTIES
LIMITED (Company Registration Number 2126351) whose registered office is
situate at Riverside House Riverside Holtspur Lane Xxxxxxx Xxxxx Xxxx
Xxxxxxx Xxxxxxxxxxxxxxx XX00 0XX ("the Contractor") of the one part and
INSIGNIA SOLUTIONS Plc (Company Registration Number 01961960) whose
registered office is situate at Buckingham Court London Road High Wycombe
aforesaid ("the Tenant") of the other part
WHEREAS:-
(1) By a Lease ("the Lease") dated the 12th day of August 1998 between the
Contractor (1) and the Tenant (2) the property known or to be known as
Apollo House The Mercury Centre Wycombe Lane Wooburn Green High Wycombe
aforesaid ("the Development") demised to the Tenant for a term of 15
years from the 12th day of August 1998 subject to the rents covenants
and conditions therein contained
(2) The Contractor has constructed the Development
(3) The Contractor has agreed in consideration of the Tenant agreeing to enter
into the Lease to enter into this Deed in favour of the Tenant
NOW THIS DEED WITNESSETH as follows:-
1. The Contractor warrants to and undertakes with the Tenant that:-
(a) It has carried out the Development in a good and workmanlike manner
in accordance with all planning and other consents obtained in
connection with the Development
(b) In the design of the Development insofar (if at all) as the
Development has been designed by it and in the selection of
materials and goods for the Development insofar as such materials
and goods have been selected by it it has exercised all reasonable
skill and care
2
(c) The Contractor will use all reasonable endeavours to maintain in
force sufficient professional indemnity insurance (without any
unusual exclusions) with reputable insurers carrying on business in
the United Kingdom to cover any liabilities of the Contractor which
may arise out of this Deed up to a limit in respect of each and
every claim of not less than L2,000,000 The Contractor will use all
reasonable endeavours to maintain such insurance for a period of
twelve years from the date hereof and will produce such evidence as
the Tenant may reasonably require (but not more than once in any 12
months period) to satisfy itself that the terms of this Clause have
been complied with
2. The Contractor hereby further warrants and undertakes with the Tenant
that it has not specified or knowingly authorised the use in connection
with the Development of any:-
(a) high alumina cement in structural elements
(b) wood slab in permanent formwork to concrete or in structural
elements
(c) calcium chloride in admixtures for use in reinforced concrete
(d) naturally occurring aggregates for use in reinforced concrete which
do not comply with the requirements of British Standards 882
(1983) and naturally occurring aggregates for use in concrete which
do not comply with the relevant provisions of British Standard
8110 (1985)
(e) calcium silicate bricks or tiles
(f) asbestos or asbestos-based products
(g) lead or any products containing lead for use in connection with
drinking water
3
(h) urea formaldehyde foam
(i) other substance which have been publicised in the Building
Research Establishment Digest as being deleterious to health and
safety or to the durability of the property in the particular
circumstances in which they are used
3. The Tenant shall be entitled at any time to assign the benefit of this Deed
three times by way of absolute legal assignment to such person or persons
as the Lease shall be assigned in accordance with clause 3(17) of the Lease
without the consent of the Contractor provided that written notice of such
assignment is given to the Contractor within 28 days of the date thereof
4. Any notice provided for in accordance with this Deed shall be deemed to
be duly given if delivered by hand or sent by registered or pre-paid post
or by facsimile transmission to the party named therein at the address of
such party shown herein or such other address as such party may by
notice in writing nominate for the purpose of service and if sent by post
shall be deemed to have been received no later than forty-eight hours after
the same shall have been posted
5. The Tenant hereby agrees and undertakes to claim against the
Commercial Union Assurance Latent Defects Insurance Policy to be
incepted by the Contractor in the event of any inherent or latent defect in
the design or construction or the materials used in the construction of the
Development arising and only in the case of a shortfall in the insurance
cover or upon the expiry of such cover will a claim be made by the Tenant
pursuant to the provisions of this Deed
6. The Contractor agrees to notify any claim made hereunder to its insurers
in accordance with the terms of such insurances
4
IN WITNESS whereof the Contractor and the Tenant have caused their
respective Common Seals to be affixed to this Deed the day and year first before
written
THE COMMON SEAL of COMLAND )
INDUSTRIAL AND COMMERCIAL ) [SEAL]
PROPERTIES LIMITED was affixed to )
this Deed in the Presence of:- )
DIRECTOR: X. X. Xxxxxx
SECRETARY: X. Xxxxx
THE COMMON SEAL of INSIGNIA )
SOLUTIONS Plc was affixed to this ) [SEAL]
Deed in the presence of:- )
DIRECTOR: Xxxxxxx X. Xxxxxx
SECRETARY: X. X. Xxxxxx
DATED: 12TH AUGUST 1998
COMLAND INDUSTRIAL AND
COMMERCIAL PROPERTIES LIMITED (1)
INSIGNIA SOLUTIONS Plc (2)
----------------------
COLLATERAL WARRANTY
Relating to
Saturn House The Mercury Centre
Wycombe Lane Wooburn Green
High Wycombe Buckinghamshire
----------------------
[MANCHES LOGO]
Manches & Co 0 Xxxxxxxxx Xxxxxx Xxxxxx 0X0 0XX
THIS DEED OF WARRANTY is made the 12th day of August One thousand nine
hundred and ninety-eight BETWEEN COMLAND INDUSTRIAL AND COMMERCIAL PROPERTIES
LIMITED (Company Registration Number 2126351) whose registered office is
situate at Riverside House Riverside Holtspur Lane Xxxxxxx Xxxxx Xxxx Xxxxxxx
Xxxxxxxxxxxxxxx XX00 0XX ("the Contractor") of the one part and INSIGNIA
SOLUTIONS Plc (Company Registration Number 01961960) whose registered office
is situate at Buckingham Court London Road High Wycombe aforesaid ("the
Tenant") of the other part
WHEREAS:-
(1) By a Lease ("the Lease") dated the 12th day of August 1998 between the
Contractor (1) and the Tenant (2) the property known or to be known as
Saturn House The Mercury Centre Wycombe Lane Wooburn Green High Wycombe
aforesaid ("the Development") was demised to the Tenant for a term of
15 years from the 12th day of August 1998 subject to the rents covenants
and conditions therein contained
(2) The Contractor has constructed the Development
(3) The Contractor has agreed in consideration of the Tenant agreeing to enter
into the Lease to enter into this Deed in favour of the Tenant
NOW THIS DEED WITNESSETH as follows:-
1. The Contractor warrants to and undertakes with the Tenant that:-
(a) It has carried out the Development in a good and workmanlike
manner in accordance with all planning and other consents
obtained in connection with the Development
(b) In the design of the Development insofar (if at all) as the
Development has been designed by it and in the selection of
materials and goods for the Development insofar as such materials
and goods have been selected by it it has exercised all reasonable
skill and care
2
(c) The Contractor will use all reasonable endeavours to maintain in
force sufficient professional indemnity insurance (without any
unusual exclusions) with reputable insurers carrying on business in
the United Kingdom to cover any liabilities of the Contractor which
may arise out of this Deed up to a limit in respect of each and every
claim of not less than L2,000,000 The Contractor will use all
reasonable endeavours to maintain such insurance for a period of
twelve years from the date hereof and will produce such evidence
as the Tenant may reasonably require (but not more than once in
any 12 months period) to satisfy itself that the terms of this Clause
have been complied with
2. The Contractor hereby further warrants and undertakes with the Tenant
that it has not specified or knowingly authorised the use in connection
with the Development of any:-
(a) high alumina cement in structural elements
(b) wood slab in permanent formwork to concrete or in structural
elements
(c) calcium chloride in admixtures for use in reinforced concrete
(d) naturally occurring aggregates for use in reinforced concrete which
do not comply with the requirements of British Standards 882
(1983) and naturally occurring aggregates for use in concrete which
do not comply with the relevant provisions of British Standard
8110 (1985)
(e) calcium silicate bricks or tiles
(f) asbestos or asbestos-based products
(g) lead or any products containing lead for use in connection with
drinking water
3
(h) urea formaldehyde foam
(j) other substance which have been publicised in the Building
Research Establishment Digest as being deleterious to health and
safety or to the durability of the property in the particular
circumstances in which they are used
3. The Tenant shall be entitled at any time to assign the benefit of this Deed
three times by way of absolute legal assignment to such person or persons
as the Lease shall be assigned in accordance with clause 3(17) of the Lease
without the consent of the Contractor provided that written notice of such
assignment is given to the Contractor within 28 days of the date thereof
4. Any notice provided for in accordance with this Deed shall be deemed to
be duly given if delivered by hand or sent by registered or pre-paid post
or by facsimile transmission to the party named therein at the address of
such party shown herein or such other address as such party may by
notice in writing nominate for the purpose of service and if sent by post
shall be deemed to have been received no later than forty-eight hours after
the same shall have been posted
5. The Tenant hereby agrees and undertakes to claim against the
Commercial Union Assurance Latent Defects Insurance Policy to be
incepted by the Contractor in the event of any inherent or latent defect in
the design or construction or the materials used in the construction of the
Development arising and only in the case of a shortfall in the insurance
cover or upon the expiry of such cover will a claim be made by the Tenant
pursuant to the provisions of this Deed
6. The Contractor agrees to notify any claim made hereunder to its insurers
in accordance with the terms of such insurances
4
IN WITNESS whereof the Contractor and the Tenant have caused their
respective Common Seals to be affixed to this Deed the day and year first before
written
THE COMMON SEAL of COMLAND )
INDUSTRIAL AND COMMERCIAL ) [SEAL]
PROPERTIES LIMITED was affixed to )
this Deed in the presence of: )
DIRECTOR: X. X. Xxxxxx
SECRETARY: X. Xxxxx
THE COMMON SEAL of INSIGNIA )
SOLUTIONS Plc was affixed to this ) [SEAL]
Deed in the presence of:- )
DIRECTOR: Xxxxxxx X. Xxxxxx
SECRETARY: X. X. Xxxxxx
WARRANTY AGREEMENT CoWa/P&T
(In Scotland, leave blank THIS AGREEMENT
For applicable date see
Testing Clause on page 4) is made the 12th day of August 1998
------------ ---------
BETWEEN:-
(insert name of
the Consultant) (1) Xxxxxx Xxxxxx & Associates
---------------------------------------------
of/whose registered office is situated at
Xxxxxxxx Xxxxx, 000 Xxxx Xxxxxx,
---------------------------------------------
Xxxxxxx, Xxxxxxxxxxxxxxx XX0 0XX
---------------------------------------------
("the Firm"), and
(insert name of
the Purchaser/the Tenant) (2) Insignia Solutions Plc
---------------------------------------------
whose registered office is situated at
Xxxxxxxxxx Xxxxx, Xxxxxx Road,
---------------------------------------------
Xxxx Xxxxxxx, Xxxxx XX00 0XX
---------------------------------------------
(delete as appropriate) ("the Tenant" which term shall include all
permitted assignees under this Agreement).
WHEREAS:-
(delete as appropriate) A. The Tenant has entered into an agreement to
lease with
Comland Industrial & Commercial Properties
---------------------------------------------
Ltd, Riverside House, Riverside,
---------------------------------------------
HoltspurLane, Wooburn Green, High Wycombe,
---------------------------------------------
Xxxxxxxxxxxxxxx XX00 0XX ("the Client")
------------------------------
relating to
insert
description of ---------------------------------------------
the premises) XXXXX 0 xxx 0 - Xxx Xxxxxxx Xxxxxx
---------------------------------------------
("the Premises")
-----------------------------
(delete as appropriate) [forming part of The RHM Bakery Site
-----------------------------
Wooburn Green
(insert ---------------------------------------------
description of High Wycombe, Buckinghamshire
the Development) ---------------------------------------------
at
(insert address -------------------------------------------
of the development) "the Development").]
-------------------------
(delete as appropriate) ["The Premises" are also referred to as "the
Development" in this Agreement.]
(insert date B. By a contract ("the Appointment") dated
of appointment) the Client has appointed the Firm as -----
(delete/complete [consulting structural engineers] in
as appropriate) connection with the Development.
C. The Client has entered into a contract ("the
Building Contract") with
(insert name of A building contractor selected by the Client
building contractor ---------------------------------------------
or "a building
contractor to be ---------------------------------------------
selected by the
Client") ---------------------------------------------
for the construction of the Development.
Page 1
NOW IN CONSIDERATION OF THE PAYMENT OF ONE POUND
(L1) THE TENANT TO THE FIRM (RECEIPT OF WHICH THE
FIRM ACKNOWLEDGES) IT IS HEREBY AGREED as
follows:-
(delete as appropriate 1. The Firm warrants that it has exercised and
to reflect terms of the will continue to exercise reasonable skill
Appointment) [and care] in the performance of its services
to the Client under the Appointment. In the
event of any breach of this warranty:
(a) subject to paragraphs (b) and (c) of this
clause, the Firm shall be liable for the
reasonable costs of repair renewal and/or
reinstatement of any part or parts of the
Development to the extent that
- the Tenant incurs such costs and/or
- the Tenant is or becomes liable either
directly or by way of financial
contribution for such costs.
The Firm shall not be liable for other
losses incurred by the Tenant.
(b) the Firm's liability for costs under this
Agreement shall be limited to that
proportion of such costs which it would be
just and equitable to require the Firm to
pay having regard to the extent of the
Firm's responsibility for the same and on
the basis that
Xxxxxx Xxxxxxx Architects
-------------------------------------------
(insert the names and other consultants/contractors providing
of other intended -------------------------------------------
warrantors) a design input to the development.
-------------------------------------------
-------------------------------------------
shall
--------------------------------------
be deemed to have provided contractual
undertakings on terms no less onerous
than this Clause 1 to the Tenant in
respect of the performance of their
services in connection with the
Development and shall be deemed to have
paid to the Tenant such proportion which
it would be just and equitable for them
to pay having regard to the extent of
their responsibility;
(c) the Firm shall be entitled in any action
or proceedings by the Tenant to rely on
any limitation in the Appointment and to
raise the equivalent rights in defence
of liability as it would have against
the Client under the Appointment;
(d) the obligations of the Firm under or
pursuant to this Clause 1 shall not be
released or diminished by the
appointment of any person by the Tenant
to carry out any independent enquiry
into any relevant matter.
2. [Without prejudice to the generality of Clause
(delete where 1, the Firm further warrants that it has
the Firm is exercised and will continue to exercise
the quantity reasonable skill and care to see that, unless
surveyor) authorised by the Client in writing or, where
such authorisation is given orally, confirmed
by the Firm to the Client in writing, none of
the following has been or will be specified by
the Firm for use in the construction of those
parts of the Development to which the
Appointment relates:-
(a) high alumina cement in structural elements;
(b) wood wool slabs in permanent formwork to
concrete;
(c) calcium chloride in admixtures for use in
reinforced concrete;
(d) asbestos products;
(e) naturally occurring aggregates for use in
reinforced concrete which do not comply
with British Standard 882: 1983 and/or
naturally occurring aggregates for use in
concrete which do not comply with British
Standard 8110: 1985.
(further
specific (f) See Appendix I attached.
materials
may be added
by agreement) In the event of any breach of this warranty
the provisions of Clauses 1a, b, c and d
shall apply.]
CoWa/P&T 2nd Edition
-C- BPF, ACE, RIAS, RICS, RIBA 1993 Page 2
APPENDIX I
ADDITIONAL DELETERIOUS MATERIALS - SEE 2 (f).
f(i) calcium silicate bricks or tiles
f(ii) lead or any products containing lead for use in connection with
drinking water
f(iii) urea formaldehyde foam
f(iv) Crocidolite
f(v) other substances which have been publicised in the Building
Research Establishment Digest as being deleterious to health and
safety or to the durability of the property in the particular
circumstances in which they are used
3. The Firm acknowledges that the Client has
paid all fees and expenses properly due
and owing to the Firm under the
Appointment up to the date of this
Agreement.
4. The Tenant has no authority to issue any
direction or instruction to the Firm in
relation to the Appointment.
5. The copyright in all drawings, reports,
models, specifications, bills of
quantities, calculations and other
documents and information prepared by or
on behalf of the Firm in connection with
the Development (together referred to in
this Clause 5 as "the Documents") shall
remain vested in the Firm but, subject to
the Firm having received payment of any
fees agreed as properly due under the
Appointment, the Tenant and its appointee
shall have a licence to copy and use the
Documents and to reproduce the designs and
content of them for any purpose related to
the Premises including, but without
limitation, the construction, completion,
maintenance, letting, promotion,
advertisement, reinstatement,
refurbishment and repair of the Premises,
Such licence shall enable the Tenant and
its appointee to copy and use the
Documents for the extension of the
Premises but such use shall not include a
licence to reproduce the designs contained
in them for any extension of the Premises.
The Firm shall not be liable for any use
by the Tenant or its appointee of any of the
Documents for any purpose other than that
for which the same were prepared by or on
behalf of the Firm.
6. The Firm shall maintain professional
indemnity insurance in an amount of not
(insert amount) less than One million Five Hundred
Thousand pounds (L1,500,000) for any one
occurrence or series of occurrences
arising out of any one event for a period
(insert period) of 12 years from the date hereof, provided
always that such insurance is available at
commercially reasonable rates. The Firm
shall immediately inform the Tenant if
such insurance ceases to be available at
commercially reasonable rates in order
that the Firm and the Tenant can discuss
means of best protecting the respective
positions of the Purchaser/the Tenant and
the Firm in the absence of such insurance.
As and when it is reasonably requested to
do so by the Tenant or its appointee the
Firm shall produce for inspection
documentary evidence that its professional
indemnity insurance is being maintained.
(insert number [7. This Agreement may be assigned three times by
of times) the Tenant by way of absolute legal
assignment to another person taking an
(delete if under assignment of the Tenant's interest in the
Scots law) Premises without the consent of the
Client or the Firm being required and such
assignment shall be effective upon written
notice thereof being given to the Firm.]
(insert number of times)
(delete if under
English law)
8. Any notice to be given by the Firm
hereunder shall be deemed to be duly given
if it is delivered by hand at or sent by
registered post or recorded delivery to
the Tenant at its registered office and
any notice given by the Tenant hereunder
shall be deemed to be duly given if it is
addressed to "The Senior Partner" and
delivered by hand at or sent by registered
post or recorded delivery to the
above-mentioned address of the Firm or to
the principal business address of the Firm
for the time being and, in the case of any
such notices, the same shall if sent by
registered post or recorded delivery be
deemed to have been received forty eight
hours after being posted.
9. No action or proceedings for any breach of
this Agreement shall be commenced against the
(complete as Firm after the expiry of 12 years from the
appropriate) date hereof.
CoWa/P&T 2nd Edition Page 3
delete if under [10. The construction validity and performance of
Scots law) this Agreement shall be governed by English
law and the parties agree to submit to the
non-exclusive jurisdiction of the English
Courts.
(alternatives
delete as
appropriate)
(for Agreement
executed under hand and
NOT as a Deed)
]
[IN WITNESS WHEREOF this Agreement was
executed as a Deed and delivered the day and
(this must only year first before written.
apply if the
Appointment
is executed BY THE FIRM
as a Deed)
X. Xxxxxx EQUITY PARTNER
---------------------------------------------
---------------------------------------------
X. Xxxx SECRETARY
---------------------------------------------
000 XXXXX XXXX XXXXXXX XX0 0XX
---------------------------------------------
BY THE PURCHASER/THE TENANT
X. X. Xxxxxx - COMPANY SECRETARY
---------------------------------------------
0000 Xxxxx Xxxxx Xxxxxx
---------------------------------------------
Xxxxxxxxxx, XX 00000
---------------------------------------------
USA
-------------------------------------------]]
(delete if under
English law)
WARRANTY AGREEMENT
between
XXXXXXX HALL ASSOCIATES LIMITED
and
INSIGNIA SOLUTIONS PLC
In respect of
XXXXX 0 XXX 0, XXX XXXXXXX XXXXXX
XXXXXXX XXXXX
Dated 12th August 1998
------------
THIS AGREEMENT is made the 12th day of August 1998
BETWEEN
(1) XXXXXXX XXXX ASSOCIATES LIMITED of 00 Xxxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxxx,
XX00 0XX ("the Firm"), and
(2) INSIGNIA SOLUTIONS PLC whose registered office is situated at Xxxxxxxxxx
Xxxxx, Xxxxxx Xxxx, Xxxx Xxxxxxx, Xxxxx, XX00 0XX ("the Tenant" which
term shall include all permitted assignees under this agreement)
WHEREAS:-
A. The tenant has entered into a lease with Comland Industrial & Commercial
Properties Ltd ("the Client") relating to Units 1 and 2 ("the Premises")
Forming part of The Mercury Centre, Wycombe Lane, Wooburn Green ("the
Development")
B. By a contract ("the Appointment") dated 3 February 1997 the Client has
appointed the Firm as Architect in connection with the Development.
NOW IN CONSIDERATION OF THE PAYMENT OF ONE POUND (L1) BY THE TENANT TO THE FIRM
(RECEIPT OF WHICH THE FIRM ACKNOWLEDGES) IT IS HEREBY AGREED as follows:-
1. The Firm warrants that it has exercised and will continue to exercise
reasonable skill care and diligence in the performance of its services to
the Client under the Appointment. In the event of any breach of this
warranty:-
(a) subject to paragraphs (b) and (c) of this clause, the Firm shall be
liable for reasonable costs of repair/renewal and/or reinstatement of
any part or parts of the Development to the extent that the Tenant is
liable either directly or by way of financial contribution for the
same. The Firm shall not be liable for other losses incurred by the
Tenant
(b) The Firm's liability for costs under this Agreement shall be limited
to that proportion of such cost which it would be just and equitable
to require the Firm to pay having regard to the
extent of the Firm's responsibility for the same and on the basis that
XXXXXX XXXXXX shall be deemed to have provided contractual
undertakings on terms no less onerous than this Clause 1 to the Tenant
in respect of the performance of their services in connection with the
Development and shall be deemed to have paid to the Tenant such
proportion which it would be just and equitable for them to pay having
regard to the extent of their responsibility.
(c) the Firm shall be entitled in any action or proceedings by the Tenant
to rely on any limitation in the Appointment and to raise the
equivalent rights in defence of liability as it would have against the
Client under the Appointment.
2. Without prejudice to the generality of Clause 1, the Firm further warrants
that it has exercised and will continue to exercise reasonable skill and
care to see that, unless authorised by the Client in writing or, where such
authorisation is given orally, confirmed by the Firm to the Client in
writing, none of the following has been or will be specified by the Firm
for use in the construction of those parts of the Development to which the
Appointment relates:-
(a) high alumina cement in structural elements;
(b) wood wool slabs in permanent formwork to concrete,
(c) calcium chloride in admixtures for use in reinforced concrete,
(d) asbestos products;
(e) naturally occurring aggregates for use in reinforced concrete which do
not comply with British Standard 882: 1983 and/or naturally occurring
aggregates for use in concrete which do not comply with British
Standard 8110: 1985;
(f) urea formaldehyde foam;
(g) other substances generally known in the consultant's profession at the
time of specification or incorporation in the Development, as
appropriate, to be deleterious to the structural integrity of the
Development or to Health and Safety.
3. The Firm acknowledges that the Client has paid all fees and expenses
properly due and owing to the Firm under the Appointment up to date of this
Agreement.
4. The Tenant has no authority to issue any direction or instruction to the
Firm in relation to the Appointment.
5. The copyright in all drawings, reports, models, specifications, bills of
quantities, calculations and other documents and information prepared by or
on behalf of the Firm in connection with the Development (together referred
to in this clause 5 as "the Documents") shall remain vested in the Firm
but, subject
to the Firm having received payment of any fees agreed as properly due
under the Appointment, the Tenant and its appointee shall have a licence to
copy and use the Documents and to reproduce the designs and content of them
for any purpose related to the Premises including, but without limitation,
the construction, completion, maintenance, letting, promotion,
advertisement, reinstatement, refurbishment and repair of the Premises.
Such licence shall enable the Tenant and its appointee to copy and use the
Documents for the extension of the Premises but such use shall not include
a licence to reproduce the designs contained in them for any extension of
the Premises. The Firm shall not be liable for any such use by the Tenant
or its appointee of any of the Documents for any purpose other than that
for which the same were prepared by or on behalf of the Firm.
6. The Firm shall maintain professional indemnity insurance in an amount of
not less than One Million Pounds (L1,000,000) for any one occurrence or
series of occurrences arising out of any one event for a period of 12 years
from the date hereof, provided always that such insurance is available at
commercially reasonable rates. The Firm shall immediately inform the Tenant
if such insurance ceases to be available at commercially reasonable rates
in order that the Firm and the Tenant can discuss means of best protecting
the respective positions of the Tenant and the Firm in the absence of such
insurance. As and when it is reasonably requested to do so by the Tenant or
its appointee the Firm shall produce for inspection documentary evidence
that its professional indemnity insurance is being maintained.
7. This Agreement may be assigned 3 times by the Tenant by way of absolute
legal assignment to another person taking an assignment of the Tenant's
interest in the Premises without the consent of the Client or the Firm
being required and such assignment shall be effective upon written notice
thereof being given to the Firm. No further assignment shall be permitted.
8. Any notice to be given by the Firm hereunder shall be deemed to be duly
given if it is delivered by hand at or sent by registered post or recorded
delivery to the Tenant at its registered office and any notice given by the
Tenant hereunder shall be deemed to be duly given if it is addressed to
"The Senior Partner" and delivered by hand at or sent by registered post or
recorded delivery to the above mentioned address of the Firm or to the
principal business address of the Firm for the time being and, in the case
of any such notices, the same shall if sent by registered post or recorded
delivery be deemed to have been received forty eight hours after being
posted.
9. No action or proceedings for any breach of this Agreement shall be
commenced against the Firm after the expiry of 12 years from the date
hereof.
10. The construction validity and performance of this Agreement shall be
governed by English law and the parties agree to submit to the non-
exclusive jurisdiction of the English Courts.
IN WITNESS whereof the parties hereto have executed this Agreement as a Deed and
delivered the same the day and year first before written.
EXECUTED as a deed by the said )
XXXXXXX XXXX ASSOCIATES )
LIMITED acting by )
Director X. Xxxxxxx
Director X. Xxxx
SIGNED BY )
Director for and on behalf of ) Xxxxxxx X. Xxxxxx
INSIGNIA SOLUTIONS PLC )
SIGNED BY )
Secretary for and on behalf of ) X. X. Xxxxxx
INSIGNIA SOLUTIONS PLC )
Comland
Comland Industrial and Commercial Properties Limited
Dated: 12th August 1998
Insignia Solutions Plc
0 Xxxxxxxxxx Xxxxx
Xxxxxxxxx Xxxxxxxx Xxxx
Xxxxxx Xxxx
Xxxx Xxxxxxx
Xxxxx, XX00 0XX
Dear Sirs
Re: Phase 0, Xxx Xxxxxxx Xxxxxx, Xxxxxxx Lane, Wooburn Green,
High Wycombe, Bucks
We confirm that when we consider it appropriate, we shall invite you to
make an offer to lease or purchase Phase 2 before proceeding to let or sell
Phase 2 to any other party. For the avoidance of doubt we also confirm
that:-
(1) This letter is not intended to create any legal relationship between us
in relation to Phase 2 nor is it intended to bind our successors in title
or benefit yours.
(2) This letter does not bind us to accept any offer which you may be minded to
make to lease or purchase Phase 2 and once we have invited you to make a
offer and either we have received and considered your offer or the period
of 14 days has expired since the date of our invitation without our having
received an offer from you, we will be free to consider and proceed with
offers by other parties.
(3) If we accept your offer we shall be free to consider other offers and to
proceed with other parties if you fail to perform in our agreed time
scale.
(4) We will have regard to your financial circumstances in general and your
ability to perform the Lease covenants in particular when considering any
offer which you may be minded to make.
X. X. Xxxxxx
--------------------------------
For and on behalf of
Comland Industrial and Commercial Properties Limited
