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Exhibit 10.23
DATED 20th May, 1999.
LE GALLAIS' REAL ESTATES (0VERSEAS) LIMITED)
AND
OCULAR SCIENCES UK LIMITED
AND
OCULAR SCIENCES INC.
LEASE
RELATING TO
PREMISES AT UNIT ONE
(FORMER HENDY POWER PRODUCTS UNIT)
SCHOOL LANE CHANDLERS FORD INDUSTRIAL ESTATE
CHANDLERS FORD
HAMPSHIRE
Xxxxxx Xxxxx & Xxxx
00-00 Xxx Xxxxx
Xxxxxx
XXXX GTE
DX: 0000 Xxxxxxxx Xxxx
Tel: 0000 000 0000
Fax: 0000 000 0000
Ref: 5574/CMS/KH
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THIS LEASE is made the 20th day of May One thousand nine hundred and
ninety-nine BETWEEN the parties specified in Item 1.1 of Clause 1 of this Lease
WITNESSETH THAT:
Clause 1 PARTICULARS
1.1 THE LANDLORD
LE GALLAIS' REAL ESTATES (OVERSEAS) LIMITED whose registered office is
at 00 Xxxx Xxxxxx St Helier Jersey Channel Islands
THE TENANT
OCULAR SCIENCES UK LIMITED whose registered office is at Reliant Close
Chandlers Ford Hampshire SO53 4ND
THE GUARANTOR
OCULAR SCIENCES INC of 000 Xxxxxx Xxxxxx Xxxxx Xxx Xxxxxxxxx Xxxxxxxxxx
XX 00000 in the United States of America whose address for service in
England and Wales is at Reliant Close Chandlers Ford aforesaid
1.2 THE PREMISES
Unit One (Former Hendy Power Products Unit) School Lane Chandlers Ford
Hampshire which premises are for the purpose of identification only
shown edged red on the Plan annexed hereto
1.3 THE TERM
A term commencing on the 18th May 1999 and expiring on the 23rd day of
December 2010
1.4 THE RENT
ONE HUNDRED AND TWENTY-TWO THOUSAND POUNDS (L.122,000.00) per annum plus
Value Added Tax at the current rate until the
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First Review Date and thereafter 'The Rent' shall mean the revised rent
ascertained in accordance with the provisions of Schedule (1) hereto and
the Rent shall by payable by equal quarterly payments in advance on the
usual quarter days in each year with the first payment being for the
period from the date hereof to the next following quarter day to be made
on the date hereof
1.5 THE USE: Uses falling within Classes B1 B2 and/or B8 of the
Schedule to the Town and Country Planning (Use Classes) order
1987
1.6 THE RESTRICTIONS
The covenants and matters contained or referred to in the registered
freehold title number HP253048
Clause 2 INTERPRETATION
In this Lease (including any Schedule) where the context admits:-
2.1 "the Particulars" means the Particulars as set out in Clause 1 of this
Lease and references to numbered items of the Particulars are references
to the numbered sub-clauses of that Clause
2.2 "the Landlord" means the person named as the Landlord in item 1.1 of the
Particulars and includes any other person for the time being entitled to
the immediate reversion expectant on the determination of the term
granted by this Lease
2.3 "the Tenant" means the person named as the Tenant in item 1.1 of the
Particulars and includes the successors in title to the term created by
this Lease
2.4 "the Guarantor" means the person (if any) named as the Guarantor in item
1.1 of the Particulars
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2.5 "the Premises" means the premises as is described in item 1.2 of the
Particulars and includes all Landlord's fixtures and fittings in or
forming part of the Premises and all additions to the Premises and all
pipes sewers conduits cables wires and other conducting media now or
hereafter in or about the same and exclusively serving the same
2.6 "The First Review Date" means the 23rd day of December 2004 and the Next
Review Date means the 23rd December 2009 and any other date from time
to time specified under Schedule {1}-4
2.7 "this Lease" means this Lease and includes any Schedule hereto any
license granted pursuant to this Lease and any deed of variation of the
provisions hereof and any deed or instrument supplemental hereto
2.8 "Term" means the Term specified in item 1.3 of the Particulars and
shall include where appropriate any extension thereof or of the tenancy
hereby created whether by agreement of the Landlord and Tenant or by or
pursuant to any statute for the time being in force
2.9 "Termination of the Term" means the determination of the Term whether
by the effluxion of time re-entry or otherwise under the provisions
hereof by notice by surrender by operation law or otherwise or by any
other means or cause whatsoever
2.10 "the Rent" means the sum specified as the Rent in item 1.4 of the
Particulars
2.11 "Insured Risks" means fire lighting explosion storm tempest flood
aircraft or articles dropped from aircraft (other than hostile
aircraft) riot civil commotion bursting and overflowing of water pipes
tanks and apparatus impact by road vehicles and subsidence heave and
slip and such other risks as the Landlord in its reasonable discretion
may require that the Tenant shall insure against
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pursuant to the covenant on the Tenant's part in that respect contained in
herein
2.12 "the Landlord's Surveyor" shall mean (at the Landlord's absolute
discretion) a chartered surveyor in the employment of the Landlord or a
surveyor or firm of surveyors appointed by the Landlord from time to time
for the purposes mentioned in this Lease
2.13 "Person" includes a company corporation or other body legally capable of
holding land
2.14 "Prescribed Rate" means four per cent (4%) per annum above Lloyds Bank
PLC's Base Rate (or any rate of interest published by Lloyds Bank PLC as a
substitute for the aforesaid Base Rate for the purposes of this provision
and any other provision by virtue of which rates of interest are to be
calculated) in force at the date of commencement of the period in respect
of which any payment of interest accrues due under this Lease
2.15 "the Planning Acts" means the Town & Country Planning Xxx 0000 the Planning
(Listed Buildings and Conservation Areas) Xxx 0000 and the Planning
(Hazardous Substances) Xxx 0000 and the Planning (Consequential Provisions)
Xxx 0000 and all statutes referred to therein and all statutes regulations
and orders included by virtue of Clause 2.19
2.16 "the Agreement" means the agreement for the grant of this Lease dated 29
day of January 1999 made between the Landlord(1) and the Tenant(2)
2.17 "the Works" means the works contained or referred to in the Schedule of
Works annexed to the Agreement
2.18 Reference to any right exercisable by the Landlord or any right exercisable
by the Tenant in common with the Landlord is to be construed as including
where
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appropriate reference to the exercise of the right by and all persons
authorised by the Landlord in common with all other persons having a like
right
2.19 the masculine includes the feminine and the singular the plural and vice
versa
2.20 Obligations undertaken by more than a single person are joint and several
obligations
2.21 Any reference to an Act of Parliament shall include any modification
extension or re-enactment thereof for the time being in force and shall
include all instruments orders regulations permissions and directions for
the time being made issued or given thereunder or drawing validity
therefrom
2.22 Any covenant by the Tenant not to do an act or thing shall be construed as
if it were a covenant not to do or knowingly permit or suffer such act or
thing
2.23 Rights excepted reserved or granted to the Landlord shall be construed as
excepted reserved or granted to the Landlord and all persons authorised by
the Landlord.
2.24 The clause headings herein are for reference only and shall not be deemed
to form part of this Lease nor shall they affect the construction thereof
Clause 3 DEMISE
3.1. THE LANDLORD LETS with full title guarantee the Premises to the Tenant
TOGETHER with the rights set out in the Second Schedule hereto EXCEPT AND
RESERVED the rights specified in the Third Schedule hereto for the TERM
specified in item 1.3 of the Particulars THE TENANT PAYING yearly and
proportionately for any fraction of a year the Rent at the times and in
the manner specified in items 1.4 of the Particulars
Clause 4 TENANT'S COVENANTS
THE TENANT COVENANTS WITH THE LANDLORD as follows:-
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4.1 To pay the Rent at the times and in the manner described in item 1.4 of
the Particulars such payment if required by the Landlord to be made by
Banker's Order or Credit Transfer to such bank and account as the
Landlord shall from time to time nominate
4.2 To pay all existing and future rates taxes assessments impositions and
outgoings assessed or imposed on or in respect of the Premises (whether
assessed or imposed on the Landlord or the Tenant) PROVIDED THAT if the
Premises shall have been left unoccupied during the whole or part of
the period of three months immediately preceding the Termination of the
Term and there is in force in the rating district within which the
Premises are situated any legislation making payable any general void
or other rates for unoccupied premises for any period the Tenant shall
upon the Termination of the Term pay to the Landlord a sum equal to the
general rats for the said period of three months or for the proportion
of such period during which the Premises shall have been left
unoccupied
4.3 If any rent or other sums payable by the Tenant to the Landlord under
this Lease shall be due but unpaid for seven (7) days to pay on demand
to the Landlord (if the Landlord shall so require) interest at the
Prescribed Rate from time to time (after as well as before any
judgment of the Courts) on such money from the due date until payment
PROVIDED THAT this sub-clause shall not prejudice any other right or
remedy in respect of such money
4.
4.4.1 Subject to clause 4.4.1.3 at all times to keep the Premises
including all parts of the roof main structure and foundations
thereof and all other parts thereof and the appurtenances
thereof including the doors plate
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glass and other windows fixtures fittings fastenings wires waste
water drain and other pipes and sanitary and water apparatus
therein and the painting papering and decoration thereof in good
and substantial repair and condition throughout the term (damage
by fire and such other risks against which the Landlord shall
have insured save where the insurance moneys shall be
irrecoverable in consequence of any act or default of the Tenant
only excepted) and to renew and replace from time to time all
Landlord's fixtures fittings and appurtenances in the Premises
which may become or be beyond repair at any time during or at the
expiration or sooner determination of the Term PROVIDED THAT:-
4.4.1.1 the Tenant shall not allow the Premises to fall below
the state of repair and condition as evidenced by the
Schedule of Condition to be prepared by the Tenant's
surveyor such Schedule to be prepared after the initial
completion of the Landlord's refurbishment works and
such Schedule shall be amended by the Tenant's Surveyor
to delete any items which are rectified to the Tenant's
Surveyor's satisfaction after the initial completion of
the refurbishment works
4.4.1.2 such Schedule of Condition shall be subject to the
approval of the Landlord's Surveyor (such approval not
to be unreasonably withheld or delayed) but if no such
approval has been given within 28 days (such time period
not being unreasonable) of the receipt by the Landlord's
Surveyor of the Schedule of Condition then either party
may apply to the President of the Royal Institute of
Chartered Surveyors for an independent
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surveyor to be appointed to settle the Schedule of
Condition and such independent surveyor shall act as an
expert and his decision shall be final and binding upon
the Landlord and the Tenant
4.4.1.3 the Tenant shall not be responsible for any defects
which appear in the Works within six (6) months of the
date of practical completion thereof and which the
Landlord is liable to have made good under clause 5.2
4.2.2 Completely to redecorate the exterior of the Premises in every
fourth year and in the last three months of the Term (however
determined) (but not if such redecoration has taken place within
the previous twelve months) preparing and painting those parts
previously or usually painted with at least two coats of good and
suitable paint with tints or colours on each occasion where it
differs from the previous tint or colour to be approved in
writing by the Landlord such approval not to be unreasonably
withheld or delayed
4.4.3 Completely to re-decorate the interior of the premises in every
fifth year and in the last three months of the Term (however
determined) (but not if such redecoration has taken place within
the last twelve months) preparing and painting those parts
previously or usually painted with at least two coats of good
and suitable paint with tints or colours on each occasion where
it differs from the previous tint or colour to be approved in
written by the Landlord such approval not to be unreasonably
withheld or delayed
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4.4.4 As often as may be necessary to clean and treat in an
appropriate manner to the approval of the Landlord's Surveyor
(acting reasonably) all materials surfaces and finishes of the
interior of the Premises and in particular all wood plastic metal
and stonework of the interior of the Premises not requiring
painting or polishing and to wash all surfaces requiring washing
4.4.5 At the end of Term to give up the Premises and the Landlord's
fixtures and fittings therein and to remove the Tenant's trade
fixtures and fittings from the Premises leaving the Premises
duly repaired and decorated in accordance with the provisions of
this sub-clause and clear of any furniture goods or refuse
PROVIDED THAT:-
4.4.5.1 All work referred to in this sub-clause shall be done
in a good and workmanlike manner and to the reasonable
satisfaction of the Landlord's Surveyor or architect
4.4.5.2 Painting in the last three months of the Term shall be
done in colours first approved in writing by the
Landlord such approval not to be unreasonably withheld
or delayed
4.4.5.3 Damage by any of the Insured Risks is excepted from
the Tenant's liability under this sub-clause unless
the whole or any part of the insurance money is
irrecoverable by reason of any act or default of the
Tenant or the Tenant's invitees reasonably expected to
be under the control of the Tenant
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4.4.5.4 The Tenant shall pay the Landlord's Surveyor's or
architect's reasonable fees incurred as a result of any
breach by the Tenant of this sub-clause
4.4.5.5 The Tenant shall make good any damage caused to the
Premises by any removal of the Tenant's fixtures
fittings furniture and effects
4.4.5.6 The Tenant shall pay a sum equivalent to the loss of
rent incurred by the Landlord during such period as is
reasonably required for the expeditious carrying out of
works after the end of the Term by reason of any breach
of this sub-clause
4.5
4.5.1 To keep the drains and pipes which solely serve the Premises clear
and unobstructed and not to do anything which causes an obstruction
in any drain or pipe in or serving the Premises
4.5.2 To take all reasonable precautions against frost damage to any pipes
or water apparatus in the Premises
4.6
4.6.1 To make good any defect in repair or decoration of the Premises for
which the Tenant is liable in accordance with the Tenant's covenants
and of which the Landlord has given notice in writing such making
good to be completed as quickly as reasonably practicable and in any
event to commence works within a period of two (2) months from the
date of the Landlord's notice or sooner if considered necessary by
the Landlord's Surveyor and to use reasonable endeavours to complete
such works within a reasonable time being no longer than four (4)
months after commencement of works
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4.6.2 If the Tenant shall not comply with sub-clause 4.6.1 hereof the
Landlord may (but shall not be obliged to) enter the Premises and
make good such defects and the proper expense of doing so
(including reasonable surveyors' or architects' fees) shall be
repaid by the Tenant on demand
4.7
4.7.1 To execute all works and to do all things on or in respect of the
Premises which are required by the Offices Shops and Railway
Premises Act 1963 the Fire Precautions Xxx 0000 the Health and
Safety at Work Xxx 0000 or any other present or future Act of
Parliament and which are or shall be directed or are necessary to
be done or executed upon or in respect of the Premises or any part
thereof or in respect of the user thereof by the owner lessee tenant
or occupier thereof and at all times to save harmless and to keep
indemnified the Landlord against all claims demands costs expenses
and liability in respect thereof
4.7.2 To comply with all requirements of current and future Acts of
Parliament orders byelaws or regulations as to the user of or
otherwise concerning the Premises
4.8 To permit the Landlord and the Landlord's agents and workmen on reasonable
prior notice (except in emergency when no notice shall be required) at
reasonable hours to enter the Premises for the purpose of:-
4.8.1 viewing and recording the condition of the Premises
4.8.2 repairing maintaining alerting or cleaning any part of any
adjoining or neighbouring premises of the Landlord
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4.8.3 repairing maintaining cleaning altering replacing or adding to any
pipes wires flues channels drains or apparatus which serve any
adjoining or nearby premises of the Landlord
4.8.4 complying with any of its obligations under this Lease or for any
other reasonable purpose connected with the management of the
Premises
PROVIDED that the Landlord shall make good as quickly as reasonably
practicable all damage to the Premises caused by such entry
4.9 During the last six months of the Term (unless negotiations have commenced
under the provisions of the Landlord and Xxxxxx Xxx 0000 with regard to
the renewal of this lease) to allow a letting board or notice to be
displayed on the Premises and at any time during the whole of the Term to
allow a sale board or notice to be displayed on the Premises (but not so
that any board or notice unnecessarily obstructs the light to the
Premises) and to allow prospective tenants or purchasers to view the
Premises at all reasonable times on reasonable notice
4.10
4.10.1 Not to assign underlet mortgage charge or share or part with the
possession of part only of the Premises nor share the use or
occupation or part with possession of the Premises or any part
thereof nor permit any person deriving title from the Tenant to do
so (save by way of assignment or underletting of the whole as
hereinafter mentioned) PROVIDED always that the Tenant may part
with or share occupation of the whole or any part of the Premises
with a company that is a member of the same group as the Tenant
(within the meaning of Section 42 of the Landlord and Tenant Act
1954) for
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so long as both companies remain members of the same group and in
a manner that does not create a legal interest in the Premises
4.10.2 Not without the Landlord's prior written consent (which shall not
be unreasonably withheld or delayed) nor without first satisfying
and complying with the circumstances and conditions set out in
sub-clause 4.10.3 hereof (which are specified for the purposes of
the Landlord & Xxxxxx Xxx 0000 Section 19A(1));
4.10.2.1 to assign or part with possession of the Premises
as a whole
4.10.3 The circumstances and conditions referred to in sub-clause 4.10.2
hereof are that:-
4.10.3.1 In the case of an assignment the assignee is a
Qualifying Person; and
4.10.3.2 Upon or before any assignment the Tenant enters
into a Deed of Covenant with the Landlord under
which the Tenant:-
4.10.3.2.1 Guarantees the performance by the proposed
assignee of all of the tenant covenants (as
defined in Section 28 of the Landlord & Tenant
(Covenants) Act 1995 ("xxx 0000 Xxx")) throughout
the period for which the proposed assignee is
bound by the tenant covenants
4.10.3.2.2 Is liable to the Landlord as principal debtor and
is not released even if the Landlord gives the
proposed assignee extra time to comply with any
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obligation or does not insist upon strict
compliance with the terms of this Lease
4.10.3.2.3 Agrees that in the event that this Lease is
disclaimed and if so required by the
Landlord he will accept the grant of a new
tenancy of the Premises on the same terms
and conditions as this Lease at the date of
disclaimer and for a term expiring on the
term expiry date of this Lease
4.10.3.3 If so required by the Landlord upon or before any
assignment the assignee shall join in the licence to
assign and shall covenant with the Landlord to pay the
rent reserved by this Lease and any damages accruing
to the Landlord by reason of any failure to observe
and perform the covenants and conditions on the part
of the Lessee herein contained and if reasonably
requested by the Landlord the assignee (if a private
limited company but not otherwise) shall obtain not
more than two guarantors acceptable to the Landlord
who covenant by way of indemnity and guarantee (and if
more than one jointly and severally) with the Landlord
that the assignee will pay the rents reserved by this
Lease and will observe and perform the Tenant's
Covenants in this Lease and that they will indemnify
the Landlord against any loss resulting from a default
by the assignee and if this Lease is disclaimed by a
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liquidator of the company the guarantors will if the
Landlord shall so require take from the Landlord a
lease of the Premises for the residue of the term
which would have remained had there been no such
disclaimer at the rent then being paid hereunder and
subject to the same covenants and conditions as in
this Lease such new lease to take effect from the date
of disclaimer and in such case the guarantors shall
pay the reasonable costs of such new Lease and execute
and deliver to the Landlord a counterpart thereof
4.10.4 "Qualifying Person" means an assignee who together with any
guarantors and other security for the performance by the
assignee of the Tenant's Covenants under this Lease (other
than any Authorised Guarantee Agreement described in
Section 16 of the 0000 Xxx) is in the reasonable opinion of
the Landlord no less likely to pay the rent than the Tenant
(and the Guarantor if any) were (or are) in aggregate
(after taking into account the value at the date of the
application for licence to assign or the value at the date
on which this Lease was granted or assigned to the Tenant
(whichever value is or was higher) of any other security
for the performance of the tenant covenants of this Lease
by the Tenant) and the Landlord shall adjudge such
likelihood by reference in particular to the financial
strength of the proposed tenant which shall be satisfactory
if the proposed tenant can show pre-tax profits equal to
three times the annual rent in the last three years'
accounts
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4.10.5 The Tenant must not sublet the whole of the Premises without
the consent of the Landlord such consent not to be
unreasonably withheld or delayed
4.10.6 The Tenant must not sublet the whole of the Premises unless
he obtains and produces to the Landlord before the grant of
the sublease an order of the appropriate court authorising
an agreement between the parties to the sublease excluding
the operation of the Landlord and Xxxxxx Xxx 0000 sections
24-28 inclusive in relation to the tenancy created by it and
includes in the terms of the sublease a clause excluding the
operation of those sections from it
4.10.7 Every permitted sublease must be granted without a fine or
premium at a rent not less than the current rent payable
under this Lease in respect of the Premises to be approved
by the Landlord before the sublease (such approval not to be
unreasonably withheld or delayed) to be payable in advance
on the days on which the Rent is payable under this Lease
4.10.8 Every permitted sublease must contain provisions approved by
the Landlord (such approval not to be unreasonably withheld
or delayed) as follows:-
4.10.8.1 for the upwards only review of the rent reserved
by it on the basis set out in Schedule 1 THE RENT
AND RENT REVIEW and on the Review Dates
4.10.8.2 prohibiting the subtenant from doing or allowing
anything in relation to the Premises inconsistent
with or in breach of the provisions of this Lease,
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4.10.8.3 for re-entry by the sub-landlord on breach of any
covenant by the subtenant
4.10.8.4 imposing an absolute prohibition against all dealings
with the Premises other than assignment or charging of
the whole or underletting
4.10.8.5 prohibiting assignment or charging of the whole of the
Premises or underletting without the consent of the
Landlord under this Lease such consent not to be
unreasonably withheld or delayed
4.10.8.6 requiring the assignee on any assignment of the
sublease to enter into direct covenants with the
landlord to the same effect as those contained in
clause 4.10.9
4.10.8.7 requiring on each assignment of the sublease that the
assignor enters into an authorized guarantee agreement
in favour of the Landlord
4.10.8.8 prohibiting the subtenant from holding on trust for
another or permitting another to share or occupy the
whole or any part of the Premises save that the
subtenant may part with or share occupation of the
whole or any part of the Premises with a Company that
is a member of the same group as the Tenant (within the
meaning of Section 42 of the Landlord and Tenant act
1954) for so long as both companies remain members of
the same group and in a manner that does not create a
legal interest in the Premises
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4.10.8.9 imposing in relation to any permitted assignment or
charge the same obligations for registration with
the Landlord as are contained in this Lease in
relation to dispositions by Tenant and
4.10.8.10 excluding the provisions of sections 24-28 of the
1954 Act from the letting created by the sublease
4.10.9 Before any permitted subletting the Tenant must ensure that the
subtenant enters into a direct covenant with the Landlord that
while he is bound by the tenant covenants of the sublease and
while the subtenant is bound by an authorised guarantee
agreement the subtenant will observe and perform the tenant
covenants contained in this Lease - except the covenant to pay
the rent reserved by this Lease - and in that sublease
4.10.10 Upon every application for consent required by this
sub-clause to disclose to the Landlord such information as to
the terms of the proposed transaction as the Landlord shall
reasonably require
4.10.11 Within one month after its date to produce to the Landlord
every assignment or document evidencing a devolution of this
Lease or the Premises paying a reasonable fee therefor (being
not less than Twenty Five Pounds (L25.00)) for each such
registration and at the same time to provide the Landlord with
a certified copy of such assignment
4.11.
4.11.1 Not to make any structural alterations or additions
whatsoever to the Premises or the exterior thereof PROVIDED
THAT the Tenant may
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make non-structural alterations in the Premises with the
Landlord's prior written consent (such consent not to be
unreasonably withheld or delayed) and the Tenant covenants to
carry out any such alterations in a good and xxxxxxx-like
manner using good materials suitable for the alterations
4.11.2 At the end of the Term if so required by the Landlord acting
reasonably substantially to reinstate the Premises to the same
condition as they were at the date of the grant of this Lease
such reinstatement to be carried out under the supervision and
to the reasonable satisfaction of the Landlord's Surveyor or
architect
4.12
4.12.1 Not without the Landlord's written consent such consent not to
be unreasonably withheld or delayed to place or display outside
the Premises or inside the Premises so as to be visible from the
outside any poster notice advertisement name or sign except the
name of the Tenant displayed in a position and in a manner first
approved in writing by the Landlord at the entrance to the
Premises and for the avoidance of doubt the Landlord confirms
its approval of all signs existing at the Premises at the date
hereof
4.12.2 Not to fix any aerial or other device to the exterior of the
Premises or in any way interfere with the exterior of the
Premises without first obtaining the Landlord's approval (such
approval not be unreasonably withheld or delayed)
4.13
4.13.1 To comply with all requirements and regulations of the
electricity supply authority as to the electrical installation
in the Premises
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4.13.2 Not without the Landlord's written consent (which shall not be
unreasonably withheld or delayed) to alter or extend the
electrical installation or wiring in the Premises
4.13.3 Not to use any apparatus which overloads the electrical
installation in the Premises or the Building
4.14 Not to do anything upon the Premises which is or may become a nuisance
damage or annoyance to the Landlord or to the tenant or occupier of any
adjoining or nearby premises
4.14.1 Not to use the whole or any part of the Premises:
4.14.1.1 for any illegal or immoral purpose
4.14.1.2 for any offensive noisy or dangerous trade business or
manufacture
4.14.1.3 for any purpose other than the Use
4.14.2 Not to allow any person to reside or sleep on the Premises
4.15
4.15.1 Not (by act or omission) to do anything which may invalidate any
insurance policy effected by the Tenant in respect of the
Premises or increase the premium for it
4.15.2 Without prejudice to the rights of the Landlord in respect of
any breach of sub-clause 4.15.1 of this Clause to repay to the
Landlord on demand all losses or damages suffered by the
Landlord by reason of any breach by the Tenant of the said
sub-clause 4.15.1
4.15.3 To notify the Landlord in writing within forty-eight (48) hours
of any outbreak of fire in the Premises or other event likely to
lead to a
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claim on the Tenant's insurance relating to the Premises
(of which the Tenant has knowledge)
4.15.4 At all times during the Term to comply with all
requirements and recommendations from time to time of
the appropriate authority in relation to fire
precautions affecting the Premises
4.16 Not to use (except in the case of fire or other emergency) or
obstruct the fire escapes in the Premises and to comply with the
Fire Authority's regulations relating to their use
4.17 Not to overload the floors or structure of the Premises and not
to bring any excessively heavy article into the Premises without
first obtaining the Landlord's written consent such consent not
to be unreasonably withheld or delayed
4.18 Not to play or use any musical instrument loudspeaker tape
recorder gramophone wireless television set or other equipment
which reproduces music or speech in the Premises so that it can
be heard outside the Premises or in adjoining premises
4.19 Not to keep any animal fish reptile or bird in the Premises
4.20
4.20.1 To supply the Landlord with a copy of any notice order
or proposal for a notice or order affecting the Premises
served on the Tenant by any competent authority (or
received by the Tenant from any undertenant or other
person) as soon as reasonably practicable after it is
received by the Tenant and without delay to take all
reasonable or necessary steps to comply with any such
notice or order
23
4.20.2 At the request of the Landlord to make or join with the
Landlord in making such objections or representations
against or in respect of any such notice or order or
proposal for the same as the Landlord shall reasonably
require at the joint expense of the Landlord and the Tenant
provided such obligation or representation does not
conflict with the Tenant's interests
4.21
4.21.1 To comply with all requirements under the Planning Acts
which affect the Premises
4.21.2 Not without the Landlord's written consent such consent not
to be unreasonably withheld or delayed to make any
application for planning permission affecting the Premises
or to implement any such permission
4.22 To preserve so far as the Tenant is able all rights of light and other
easements enjoyed by the Premises and at all times to afford to the
Landlord such reasonable facilities and assistance as may enable the
Landlord to prevent anyone acquiring any right of light or other
easement over the Premises
4.23 To pay to the Landlord on an indemnity basis all reasonable costs
fees charges disbursements and expenses (including without prejudice
to the generality of the foregoing those payable to Counsel
Solicitors or Surveyors and Bailiffs) properly incurred by the
Landlord in relation or incidental to:
4.23.1 every application made by the Tenant for a consent or
license required or made necessary by the provisions of
this Lease whether the same be granted or refused or
proffered subject to any qualification or condition or
whether the application be withdrawn
24
4.23.2 the preparation and service of a notice under Section 146 of
the Law of Property Xxx 0000 or incurred by or in proper
anticipation of proceedings under Section 146 or 147 of the Act
notwithstanding that forfeiture is avoided otherwise than by
relief granted by the Court
4.23.3 the recovery or attempted recovery of arrears of rent or other
sums lawfully due from the Tenant (including without prejudice
to the generality of the foregoing any reasonable bailiffs'
fees or commission of any description payable or incurred by
the Landlord) and
4.23.4 any steps taken in connection with the preparation and service
of a Schedule of Dilapidations during or within 3 months after
the expiration of the Term
4.24 At the end of the Term to give up all keys of the Premises to the
Landlord and to remove all lettering and signs put up by the Tenant in
the premises and to make good any damage caused by such removal
4.25 In addition to the rents fees and other payments payable by the Tenant
under this Lease to the Landlord or any other person or company upon
production of a valid VAT invoice to pay any Value Added Tax which is
now or becomes payable in respect of such rents fees and other payments
4.26 At all times during the Term to observe and perform the restrictions
(if any) specified in sub-clause 1.6 of the Particulars
4.27 To indemnify the Landlord from and against all losses any actions
proceedings claims damages costs expenses arising from any breach
non-observance or non-performance of the Tenant's covenants and
conditions contained in this Lease and sub-clause 1.6 of the Particulars
25
Clause 5 LANDLORD'S COVENANTS
THE Landlord COVENANTS with the Tenant as follows:-
5.1 That the Tenant may enjoy the Premises peaceably and quietly during the
Term and any continuation thereof without any interruption or
disturbance by the Landlord or any person lawfully claiming under or in
trust for the Landlord
5.2 To procure that the contractor employed to carry out the Works shall
rectify (as soon as practicable and in any event fully in accordance
with the terms of the building contract for the Works made between the
Landlord (1) and such contractor (2)) any defects in the Works which
come to the Landlord's knowledge within six (6) months of the date of
practical completion of the Works
Clause 6 PROVISOS
THE Parties AGREE that the Lease is subject to the following provisos:-
6.1 If at any time during the Term:
6.1.1 the Rent (or any part thereof) shall be in arrears and unpaid
for twenty-one days after becoming payable (whether formally
demanded or not) or
6.1.2 there shall be any substantial breach non-performance or
non-observance by the Tenant or the Guarantor of any of the
covenants and conditions contained in this Lease or
6.1.3 in respect of a Tenant who is an individual then on an
application being made for an Interim Order or on a Bankruptcy
Petition being presented or if a Bankruptcy Order is made
against him or where a Tenant makes an individual voluntary
arrangement with his Creditors or in the case of the Tenant
being a company if the company goes into liquidation
26
(whether compulsory or voluntary) but not a voluntary winding-up for
the amalgamation or reconstruction of a solvent company or if the
company has a Receiver Administrative Receiver or provisional
Liquidator appointed or if the company has a petition presented for
an Administration Order or a proposal made for a voluntary
arrangement or a scheme of arrangement
the Landlord may at any time thereafter (and notwithstanding the waiver of
any previous right of re-entry) re-enter the Premises or any part thereof
in the name of the whole and thereupon the Term shall absolutely cease and
determine but without prejudice to any rights or remedies which may then
have accrued to either party against the other in respect of any
antecedent breach (including the breach in relation to which re-entry is
made) of any of the covenants and conditions contained in this Lease
6.2 The Landlord shall be entitled to alter add to and execute works on other
parts of the Landlord's adjoining and nearby premises notwithstanding that
the access of light and air to the Premises may be interfered with and the
Landlord shall not be liable to pay any compensation by virtue of its
exercising these rights
6.3 The Landlord shall not be responsible to the Tenant or the Tenant's
licensees nor to any other person in the Premises for any:-
6.3.1 accident happening or injury suffered in the Premises or
6.3.2 damage to or loss of any goods or property sustained in the
Premises or
6.4.3 act omission or negligence of any employee of the Landlord
or Tenant
27
6.4 If at the end of the tenancy any furniture or effects belonging to the
Tenant are left in the Premises for more than fourteen (14) days the
Landlord shall have power to sell the same as agent for and on behalf of
the Tenant and the Landlord shall pay or account to the Tenant on demand
for any proceeds of sale (but not any interest thereon) less any
reasonable costs of storage and sale reasonably incurred by the Landlord
and any other sums still remaining lawfully due to the Landlord under the
terms of this Lease
6.5 Subject to the provisions of Section 38(2) of the Landlord and Xxxxxx Xxx
0000 neither the Tenant nor any assignee shall be entitled to any
compensation under Section 37 of that Act (or any corresponding provision
in any Act amending or replacing it) upon quitting the Premises or any
part of it
6.6 That no demand for or acceptance or receipt of any part of the Rent or
additional rent or any payment on account thereof shall operate as a
waiver by the Landlord of any right which the Landlord may have to forfeit
this Lease by reason of any breach of covenant by the Tenant
notwithstanding that the Landlord may know or be deemed to know of such
demand acceptance or receipt and the Tenant shall not in any proceedings
for forfeiture be entitled to rely on any such demand receipt or
acceptance as aforesaid as a defence
7.1 Tenant to Insure
The Tenant covenants with the Landlord to insure the Premises
(excluding any fixed equipment or machinery fixtures or fittings
installed by the Tenant) in the name of the Tenant and to the
procure that the Landlord's interest is noted on the policy
7.2 Details of the Insurance
Insurance shall be effected:
28
7.2.1 in such insurance office or with such underwriters and
through such agency as the Landlord (acting reasonably) may
from time to time approve (such approval not to be
unreasonably withheld or delayed)
7.2.2 for the following sums:
7.2.2.1 such sums as the Landlord shall from time to time
be properly advised as being the full cost of
rebuilding and reinstatement including architects'
surveyors' and other professional fees payable
upon any applications for planning permission or
other permits or consents that may be required in
relation to the rebuilding or reinstatement of the
Premises the cost of shoring-up debris removal
demolition site clearance any works that may be
required by statute incidental expenses and
7.2.2.2 the loss of Rent payable under this lease from
time to time (having regard to any review of the
rent which may become due under this lease) for
three years
7.2.3 against damage or destruction by the Insured Risks to the
extent that such insurance may ordinarily be arranged for
properties such as the Premises with an insurer of repute
and subject to such excesses exclusions or limitations as
the insurer may require
29
7.3 Suspension of Rent
7.3.1 If and whenever during the Term:
7.3.1.1 the Premises or any part of them are damaged or
destroyed by any of the Insured Risks except one
against which insurance may not ordinarily be
arranged with an insurer of repute for properties
such as the Premises unless the Tenant has in fact
insured against that risk so that the Premises or
any part of them are unfit for occupation or use
and
7.3.1.2 payment of the insurance money is not refused in
whole or in part by reason of any act or default
of the Tenant or anyone at the Premises expressly
or by implication with the Tenant's authority and
reasonably expected to be under the Tenant's
control the provisions of clause 7.4.2 shall have
effect
7.3.2 When the circumstances contemplated in clause 7.4.1 arise
the Rent or a fair proportion of it according to the nature
and the extent of the damage sustained shall cease to be
payable until the Premises or the affected part shall have
been rebuilt or reinstated so that the Premises or the
affected part are made fit for occupation or use or until
the expiration of three years from the destruction or damage
whichever period is the shorter (the amount of such
proportion and the period during which the Rent shall cease
to be payable to be determined in accordance with the
Arbitration Act 1996 by an arbitrator to be appointed by
agreement between the parties
30
7.4 Reinstatement or Termination If Prevented from Reinstatement
7.4.1 If and whenever during the Term:
7.4.1.1 the Premises or any part of them are damaged or
destroyed by any of the Insured Risks except one against
which insurance may not ordinarily be arranged with an
insurer of repute for properties such as the Premises
unless the Tenant has in fact insured against that risk
and
7.4.1.2 the payment of the insurance money is not refused in
whole or in part by reason of any act or default of the
Tenant or anyone at the Premises expressly or by
implication with the Tenant's authority and reasonably
expected to be under the Tenant's control
the Tenant shall use all reasonable and commercial endeavours to
obtain all planning permissions and other permits and consents
that may be required under the Planning Acts or other statutes (if
any) to enable the Tenant to rebuild or reinstate ("the
Permissions")
7.4.2 Subject to the provisions of clauses 7.4.3 and 7.4.4 the Tenant
shall as soon as the Permissions have been obtained or as soon as
reasonably practicable where no Permissions are required apply all
money received by the Tenant in respect of such insurance (except
sums in respect of loss of Rent) in rebuilding or reinstating the
Premises so destroyed or damaged
31
7.4.3 For the purposes of this clause the expression "Supervening
Events" means any one or more of the following circumstances:
7.4.3.1 the Tenant has failed despite using all reasonable and
commercial endeavours to obtain the Permissions
7.4.3.2 any of the Permissions have been granted subject to a
lawful condition with which in all the circumstances it
would be unreasonable and not financially viable to
expect the Tenant to comply
7.4.3.3 some defect or deficiency in the site upon which the
rebuilding or reinstatement is to take place would mean
that the same could only be undertaken at a cost that
would be unreasonable and not financially viable in all
the circumstances
7.4.3.4 the Tenant is unable to obtain access to the site for
the purposes of rebuilding or reinstating
7.4.3.5 the rebuilding or reinstating is prevented by war, act
of God, Government action or
7.4.3.6 any other circumstances beyond the control of the Tenant
7.4.4 The Tenant shall not be liable to rebuild or reinstate the
Premises if and for so long as such rebuilding or reinstating is
prevented by one or more of the Supervening Events
7.4.5 If upon the expiry of a period of three years commencing on the
date of the damage or destruction the Premises have not been
rebuilt or
32
reinstated so as to be fit for the Tenant's occupation and use
either party may by notice served at any time within six months
of the expiry of such period invoke the provisions of clause
7.4.6
7.4.6 Upon service of a notice in accordance with clause 7.4.5
7.4.6.1 the Term will absolutely cease but without prejudice
to any rights or remedies that may have accrued to
either party against the other including (without
prejudice to the generality of the above) any right
that the Landlord might have against the Tenant for a
breach of the Tenant's covenants set out in clauses
7.4.1 and 7.4.2
7.4.6.2 all the money received in respect of insurance
effected by the Tenant pursuant to this clause shall
belong to the Landlord save that the Tenant shall be
entitled to deduct therefrom the reasonable and proper
costs to it of seeking to procure or obtain the
Permissions and the cost of clearing the site (if
actually cleared) and all works already undertaken in
reasonable contemplation of obtaining the Permissions
and reinstating the Premises
7.5 Tenant's Insurance Covenants
The Tenant agrees with the Landlord
7.5.1 to comply with all the requirements and recommendations of the
insurers
33
7.5.2 not to do or omit anything that could cause any policy of
insurance on or in relation to the Premises to become void or
voidable wholly or in part nor (unless the Tenant shall have
previously notified the Landlord and have agreed to pay the
increased premium) anything by which additional insurance
premiums may become payable
7.5.3 to keep the Premises supplied with such fire fighting equipment
as the insurers and the fire authority may require and to
maintain such equipment to their satisfaction and in efficient
working order and at least once in every six months to cause any
fire fighting equipment to be inspected by a competent person
PROVIDED THAT this clause shall not oblige the Tenant to install
a sprinkler system or make or undertake any substantial works for
the prevention or extinguishment of fire
7.5.4 not to store or bring onto the Premises any article substance or
liquid of a specially combustible inflammable or explosive nature
and to comply with the requirements and recommendations of the
fire authority relating to the Premises PROVIDED ALWAYS that this
shall not prohibit the Tenant from storing on the Premises any
such articles or substances which it requires in connection with
its business provided that they shall be stored in an appropriate
container
7.5.5 not to obstruct the access to any fire equipment or the means of
escape from the Premises nor to lock any fire door while the
Premises are occupied
7.5.6 to give notice to the Landlord as soon as reasonably practicable
upon becoming aware of the happening of any event which might
affect any
34
insurance policy on or relating to the Premises or upon the happening
of any event against which the Tenant may have insured under this
lease
7.5.7 if at any time the Tenant shall be entitled to the benefit of any
insurance relating to the Premises (which is not effected or
maintained in pursuance of any obligations contained in this lease) to
apply all money received by virtue of such insurance in making good
the loss or damage in respect of which such money shall have been
received
7.5.8 if and whenever during the Term the Premises or any part of them are
damaged or destroyed by an Insured Risk and the insurance money
under the policy of insurance effected by the Tenant pursuant to its
obligations contained in this lease is by reason of any act or
default of the Tenant or anyone at the Premises expressly or by
implication with the Tenant's control wholly or partially
irrecoverable as soon as reasonably practicable in every such case to
rebuild and reinstate to its own expense the Premises or the part
destroyed or damaged to the reasonable satisfaction of and under the
supervision of the Landlord's Surveyor the Tenant being allowed
towards the expense of so doing the amount (if any) actually received
in respect of destruction or damage under any such insurance policy
35
7.5.10 The Tenant agrees with the Landlord in relation to the policy
of insurance effected by the Tenant pursuant to its obligations
in this lease:
7.5.10.1 on renewal in every year to produce to the Landlord
reasonable evidence of the terms of the policy and
the fact that the last premium has been paid
7.5.10.2 to procure (if requested in writing) that the
interest of the Landlord's mortgage is noted or is
endorsed on the policy
7.5.10.3 to notify the Landlord of any material change in the
risks covered by the policy from time to time
8. GUARANTOR'S COVENANTS
8.1
8.1.1
The Guarantor's covenants with the Landlord are given as sole or principal
debtor or covenant or with the landlord for the time being and with all his
successors in title without the need for any express assignment and the
Guarantor's obligations to the Landlord will last throughout the period during
which the original tenant is bound by the tenant covenants of this Lease and
for the avoidance of doubt shall last throughout any additional period during
which the original tenant is liable under an authorised guarantee agreement but
not further or otherwise
8.1.2 THE COVENANTS
The Guarantor covenants with the Landlord to observe the requirements of this
clause
36
8.1.2.1 PAYMENT OF RENT AND PERFORMANCE OF THE LEASE
The Tenant must pay the Rent and VAT lawfully charged on them (subject to the
production of a valid VAT invoice) punctually and substantially observe and
perform the covenants and other terms of this Lease and if at any time during
the period while the Tenant is abound by the tenant covenants of this Lease the
Tenant defaults in paying the Rent or in substantially observing or performing
any of the covenants or other terms of this Lease then the Guarantor must pay
the Rent and substantially observe or perform the covenants or terms in respect
of which the Tenant is in default and make good to the Landlord on demand and
indemnify the Landlord against all losses resulting from such non-payment
non-performance or non-observance notwithstanding
(a) any time or indulgence granted by the Landlord to the Tenant or any
neglect or forbearance of the Landlord in enforcing the payment of the
Rent or the observance or performance of the covenants or other terms
of this Lease or any refusal by the Landlord to accept rent tendered by
or on behalf of the Tenant at a time when the Landlord is entitled - or
will after the service of a notice under the Law of Property Act of 1925
section 146 be entitled - to reenter the Premises
(b) that the terms of this Lease may have been varied by agreement between
the Landlord and the Tenant
(c) that the Tenant has surrendered part of the Premises - in which event
the liability of the Guarantor under this Lease is to continue in
respect of the part of the Premises not surrendered after making any
necessary apportionments under the Law of Property Xxx 0000 section 140
and
37
(d) anything else by which but for this clause 8.1.2.1 the Guarantor would
be released
8.1.2.2 If at any time during the period while the Tenant is bound
by the tenant covenants of this Lease any trustee in
bankruptcy or liquidator of the Tenant disclaims this Lease
the Guarantor must if so required by written notice served
by the Landlord within 90 days of such disclaimer take from
the Landlord forthwith a lease of the Premises for the
residue of the Term as at the date of the disclaimer at the
Rent then payable under this Lease and subject to the same
covenants and terms as in this Lease - except that the
Guarantor need not ensure that any other person is made a
party to that lease as guarantor - the new lease to
commence on the date of the disclaimer The Guarantor must
pay the reasonable costs of the new lease and VAT lawfully
charged thereon and execute and deliver to the Landlord a
counterpart of the new lease
8.1.2.3 If this Lease is disclaimed and the Landlord does not
require the Guarantor to accept a new lease of the Premises
in accordance with clause 8.1.2.2 the Guarantor must 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 Premises and the Rent in both cases for
the period commencing with the date of the disclaimer and
ending on whichever is the earlier of the date 5 months
after the disclaimer or the date if any upon which the
Premises are re-let and the end of the contractual term
8.1.2.4 If at any time during the period while the Tenant is bound
by an authorised guarantee agreement the Tenant defaults in
his obligations under that agreement the Guarantor must
make good to the Landlord on demand and indemnify the
Landlord against all losses resulting from that default
notwithstanding-
38
8.1.2.4.1 any time or indulgence granted by the Landlord to the Tenant
or neglect or forbearance of the Landlord in enforcing the payment of
any sum or the observance or performance of the covenants of the
authorised guarantee agreement
8.1.2.4.2 that the terms of the authorised guarantee agreement may have
been varied by agreement between the landlord and the Tenant or anything
else by which but for this clause 8.1.2.4 the Guarantor would be
released
8.1.3
8.1.3.1
Any provision of this clause 8 rendered void by virtue of the Landlord and
Tenant (Covenants) Xxx 0000 section 25 is to be severed from all remaining
provisions and the remaining provisions are to be preserved
8.1.3.2
If any provision in this clause 8 extends beyond the limits permitted by the
Landlord and Tenant (Covenants) Xxx 0000 section 25 such provision is to be
varied so as not to extend beyond those limits
THE SCHEDULE (1): THE RENT AND RENT REVIEW
{1}-1 DEFINITIONS
For all purposes of this Schedule the terms defined in this paragraph {1}-1 have
the meanings specified:
39
(1)-1.1 'THE ASSUMPTIONS'
'The Assumptions' means -
(1)-1.1.1 the assumption that no work has been carried out on the Premises
during the Term by the Tenant, his subtenants or their
predecessors in title or any occupiers that has diminished the
rental value of the Premises
(1)-1.1.2 the assumption that if the Premises have been destroyed or
damaged they have been fully rebuilt or reinstated,
(1)-1.1.3 the assumption that the covenants contained in this Lease on the
part of the Tenant have been fully performed and observed,
(1)-1.1.4 the assumption that the Premises are available to let by a
willing landlord to a willing tenant in the open market by one
lease ('the Hypothetical Lease') without a premium being paid by
either party and with vacant possession,
(1)-1.1.5 the assumption that the Premises have already been fitted out
and equipped by and at the expense of the incoming tenant so
that they are capable of being used by the incoming tenant from
the beginning of the Hypothetical Lease for all purposes
required by the incoming tenant that would be permitted under
this Lease,
(1)-1.1.6 the assumption that the Hypothetical Lease contains the same
terms as this Lease, except the amount of the Initial Rent and
any rent-free period allowed to the Tenant for fitting out the
Premises for his occupation and use at the commencement of the
Term, but including the provisions for rent review on the Review
Dates, and except as set out in paragraph (1)-1.1.7,
40
(1)-1.1.7 the assumption that the term of the Hypothetical Lease is equal
in length to the term remaining unexpired at the relevant review
date and that such term begins on the relevant review date, that
the rent commences to be payable on that date, and that the years
during which the tenant covenants to decorate the Premises are at
the same intervals after the beginning of the term of the
Hypothetical Lease as those specified in this Lease
(1)-1.1.8 the assumption that every prospective willing landlord and
willing tenant is able to recover VAT in full
(1)-1.1.9 the [ ] floor area of the Premises is the
figure specified in the "Floor Area Memorandum" to be annexed to
this Lease and Counterpart thereof in accordance with the terms
of this Agreement
(1)-1.2 'THE DISREGARDS'
'The Disregards' means -
(1)-1.2.1 disregard of any effect on rent of the fact that the Tenant, his
subtenants, or their predecessors in title or any lawful occupier
have been in occupation of the Premises,
(1)-1.2.2 disregard of any goodwill attached to the Premises because the
business of the Tenant, his subtenants, or their predecessors in
title in their respective businesses is or was carried on there,
and
(1)-1.2.3 disregard of any increase in rental value of the Premises
attributable at the relevant review date to any improvement to
the Premises carried out, with consent where required, otherwise
than in pursuance of an obligation to the Landlord or his
predecessors in title either -
41
(a) by the Tenant, his subtenants, or their predecessors in title or any
lawful occupier during the Term or during any period of occupation
before the Term, or
(b) by any tenant or subtenant of the Premises or any lawful occupier
before the commencement of the Term, provided that the Landlord or his
predecessors in title have not since the improvement was carried out
had vacant possession of the relevant part of the Premises, and
{1}-1.2.4 disregard of the taxable status of the Landlord or the Tenant for the
purpose of VAT
[1]-1.2.5 disregard of any rent obtained on any sub-letting of the Premises
where such rent is at a rate less than the current rent payable under
this Lease
(1)-1.3 'AN EXPERT'
References to 'an expert' are references to an independent valuer appointed by
agreement between the Landlord and the Tenant or, in the absence of agreement
within 14 days of one of them giving notice to the other of his nomination,
nominated by the President on the application of either party made not earlier
than 6 months before the relevant review date or at any time thereafter to
determine the rent under this schedule
{1}-1.4 'THE PRESIDENT'
'The President' means the President for the time being of the Royal Institution
of Chartered Surveyors or any person authorised by him to make appointments on
his behalf
42
{1}-1.5 'A REVIEW PERIOD'
References to a 'Review Period' are references to the period beginning on any
review date and ending on either the day before the Next Review Date or the 23rd
December 2010 whichever is the first date to occur after the relevant review
date
{1}-2 ASCERTAINING THE RENT
{1}-2.1 THE RENT
Until the First Review Date the Rent is to be ONE HUNDRED AND TWENTY-TWO
THOUSAND POUNDS (L122,000.00) plus Value Added Tax at the current rate per annum
and thereafter for each successive Review Period a sum equal to the greater of
the rent payable under this Lease immediately before the relevant review date,
or, if payment of rent has been suspended as provided for in this Lease, the
rent that would have been payable had there been no such suspension, or the
revised rent ascertained in accordance with this Schedule
{1}-2.2 AGREEMENT OF THE RENT
Six months before each review date, time not being of the essence of the
contract, the Landlord and the Tenant must explore the possibility of open
negotiations with a view to reaching a written agreement as to the Rent for the
following review period and the Rent for that period may be agreed at any time
or, in the absence of agreement, is to be determined by an expert.
{1}-2.3 OPEN MARKET RENT
The sum to be determined by the expert must be the sum at which, acting as an
expert and not as an arbitrator or quasi-arbitrator, he decides the Premises
might reasonably be expected to be let in the open market at the relevant review
date making the Assumptions but disregarding the Disregards.
43
{1}-2.4 CONDUCT OF THE DETERMINATION
{1}-2.4.1 FEES AND EXPENSES
The fees and expenses of the expert and any VAT payable on them, including the
cost of his appointment, are to be borne equally by the Landlord and by the
Tenant, who must otherwise each bear their own costs.
{1}-2.4.2 REPRESENTATIONS
An expert must afford each of the parties an opportunity to make written
representations to him and also an opportunity to make written
counter-representations on any representations made to him by the other party
but is not to be in any way limited or fettered by such representations and
counter-representations and is to be entitled to rely on his own judgment and
opinion.
{1}-2.4.3 REPLACEMENT OF AN EXPERT
If an expert dies or refuses to act or becomes incapable of acting or if he
fails to publish his determination within 4 months of the date on which he
accepted the appointment, either party may apply to the President to discharge
him and appoint another in his place.
{1}-2.5 MEMORANDA OF AGREEMENT
Whenever the Rent has been ascertained in accordance with this schedule,
memoranda to that effect must be signed by or on behalf of the Landlord and the
Tenant annexed to this document and its counterpart, and the Landlord and the
Tenant must bear their own costs in this respect.
{1}-3 PAYMENT OF THE RENT AS ASCERTAINED
44
{1}-3.1 WHERE THE RENT IS NOT ASCERTAIN BY A REVIEW DATE
If the Rent payable during any review period has not been ascertain by the
relevant review date, then rent is to continue to be payable at the rate
previously payable, such payments being on account of the rent for that review
period.
{1}-3.2 WHERE A REVIEW DATE IS NOT A QUARTER DAY
If the Rent for any review period is ascertain on or before the relevant review
date but that date is not a quarter day, then the Tenant must pay to the
Landlord on that review date the difference between the Rent due for that
quarter and the Rent already paid for it.
{1}-3.3 BACK-PAYMENT WHERE REVIEW DELAYED
If the Rent payable during any review period has not been ascertained by the
relevant review date, then the Tenant must pay to the Landlord, within fourteen
(14) days of the date on which the Rent is agreed or the expert's determination
is received by him, any shortfall between the Rent that would have been paid
for that period had it been ascertain on or before the relevant review date
and the payments made by the Tenant on account and any VAT payable thereon, and
interest, at the base lending rate from time to time of Lloyds Bank plc, in
respect of each instalment of rent due on or after that review date on the
amount by which the instalment of the Rent that would have been paid had it
been ascertained exceeds the amount paid by the Tenant on account, the interest
to be payable for the period from the Relevant Review Date up to the date of
payment of the shortfall
{1}-4. EFFECT OF COUNTER-INFLATION PROVISIONS
If at any review date a statute prevents, restricts or modifies the Landlord's
rights either to review the Rent in accordance with this Lease or to recover
any increase in the Rent, then the Landlord may, when the restriction or
modification is removed,
45
relaxed or varied -- without prejudice to his rights, if any, to cover any rent
the payment of which has only been deferred by statute -- on giving not less
than 1 month's nor more than 3 months' notice to the Tenant at any time within
6 months of the restriction or modification being removed, relaxed or varied,
require the Tenant to proceed with any review of the Rent that has been
prevented or to review the Rent further where the Landlord's right was
restricted or modified. The date of expiry of the notice is to be treated as a
review date -- provided that nothing in this paragraph is to be construed as
varying any subsequent review date. The Landlord may recover any increase in
the Rent with effect from the earliest date permitted by law.
SCHEDULE (2) - TENANT'S RIGHTS
The following rights and easements are granted out of the Landlord's adjoining
property and to the Tenant any undertenant and occupiers of the Premises and all
other persons authorised by the Tenant in common with all other persons
authorised by the Landlord or having the like rights and easements:
[2]-1 The free and uninterrupted use of all pipes wires flues channels
drains and apparatus which serve the Premises
[2]-2 The right to enter upon neighbouring premises within title HP253048 at
all reasonable times upon reasonable notice (except in case of
emergency when no notice shall be required) for the purpose of:-
(2)-2.1 inspecting maintaining cleansing repairing renewing and
replacing the said pipes wires flues channels drains and
apparatus and making connections thereto and
(2)-2.2 executing or permitting or suffering the execution of works
or alterations to the Premises
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(2) - 3 The right at all times of access to and egress from the Premises with
or without vehicles over the land cross-hatched blue on the Plan
provided that the Tenant shall not block such access at any time
(2) - 4 The right to support and shelter now or hereafter belonging to or
enjoyed by the Premises
SCHEDULE (3) - EXCEPTIONS AND RESERVATIONS
The following rights and easements are excepted and reserved out of the Premises
unto the Landlord and its tenants and the occupiers of any adjoining or
neighbouring land and/or premises and all other persons authorised by the
Landlord or having like rights and easements:
(3) - 1 The free and uninterrupted use of all pipes wires flues channels drains
and apparatus which are in the Premises and serve other premises
(3) - 2 The right to enter upon the Premises at all reasonable times upon
reasonable prior notice (except in case of emergency when no notice
shall be required) for the purpose of:-
(3) - 2.1 inspecting maintaining cleansing repairing renewing and
replacing the said pipes wires flues channels drains and
apparatus and making connections thereto the person or
persons exercising such rights making good any damage
caused to the Premises as soon as reasonably practicable
(3) - 2.2 executing or permitting or suffering the execution of works
or alterations to any premises adjoining the Premises in
such manner as the Landlord (acting reasonably) shall think
47
fit the person or persons exercising such rights making good any damage
caused to the Premises as soon as reasonably practicable
{3}-3 All rights of light air and other easements and rights now or hereafter
belonging to or enjoyed by the Premises from or over any adjacent or
neighbouring land or building
{3}-4 The right to build or rebuild or alter any adjacent or neighbouring
land or building in any manner whatsoever and to let the same for any
purpose or otherwise deal therewith notwithstanding that the light or
air to the Premises is in any way diminished
{3}-5 The right to support and shelter and all other easements and rights now
or hereafter belonging to or enjoyed by all adjacent or neighbouring
land or building an interest wherein in possession or reversion is at
any time during the Term hereby granted vested in the Landlord
{3}-6 The right to enter upon the Premises at all reasonable times upon
reasonable prior notice for the purpose of execution or permitting or
suffering the execution of works required to complete any snagging
works required following the Landlord's refurbishments the person or
persons exercising such rights making good any damage caused to the
Premises as soon as reasonably practicable
{3}-7 The right of access to and egress from Xxxx 0 Xxxxx Xxxxxxxx Xxxxxx
Xxxx over and across the land cross-hatched black on the Plan provided
that such access shall not be blocked at any time
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{3}-8 The right of emergency pedestrian escape from the rear of the
adjacent warehouse currently known as Xxxx 0 Power Products over such
roadways and footpaths as form part of the Premises
IN WITNESS whereof the parties hereto have duly executed this Lease the day and
year first before written
Common seal of Company
THE COMMON SEAL of [COMPANY SEAL]
LE GALLAIS' REAL ESTATES
(OVERSEAS) LIMITED was affixed
in the presence of:-
/s/ XXXXX XX XXXXXXX
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Signature of Director
/s/ XXX XX XXXXXXX
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Signature of Director
