Exhibit 10.4
DATED 28th May 1993
CHESTERMOUNT PROPERTIES LIMITED
-to-
EURO BROKERS HOLDINGS LIMITED
-----------------------
U N D E R L E A S E
of
`
Premises on the Second Floor
of Five Acre Square,
000/000 Xxxxxxxxxxx, Xxxxxx XX0
-----------------------
NABARRO XXXXXXXXX
00 Xxxxxxxx Xxxxxx
Xxxxxx X0X 0XX
Telephone: 000-000 0000
T H I S U N D E R L E A S E made the 28th day of May
One thousand nine hundred and ninety three B E T W E E N CHESTERMOUNT
PROPERTIES LIMITED whose registered office is at 00 Xxxxxx Xxxxxx Xxxxxx X0
(hereinafter called "the Landlord") of the one part and EURO BROKERS HOLDINGS
LIMITED whose registered office is at Xxxxxxxx Xxxxx Xxxxxx Xxxxxx XX0X 0XX
(hereinafter called "the Tenant") of the other part W I T N E S S E T H as
follows:-
DEFINITIONS
1. In these presents whenever the context admits the following expressions
shall have the meanings hereby assigned to them namely:-
1.1 "Act of Parliament" means every Act of Parliament that may be
relevant to the Demised Premises its use or any thing or any
person thereon at any time including (without limitation) even
Act of Parliament whether in force at the date hereof or not
and any subsequent statutory re-enactment or modification of
any Act of Parliament and any order regulation directive
bye-law rule consent or licence made or granted under any Act
of Parliament or by any public or local authority (acting in
its
1
official capacity or by any court of competent jurisdiction
1.2 "the Break Date" means 24th March 2003
1.3 "the Building" means the whole of the building known as Five
Acre Square 126/137 (inclusive) Houndsditch Xxxxxx XX0
(including the Demised Premises) and the curtilage thereof
(the present position of the ground floor whereof is shown for
the purpose identification only edged blue on Plan A annexed
hereto) and any permitted alterations or additions to the same
together with the fixtures in the nature of Landlord's
fixtures which are now or at any time hereafter may be affixed
to or upon the same including without prejudice to the
generality of the foregoing the Plant
1.4 "the Business Hours" means the hours of 7.30 am to 7.30 pm on
weekdays excluding bank and public holidays provided that the
Landlord may from time to time vary or modify or extend such
hours as it may reasonably deem fit in the interest of good
estate management of the Building
2
1.5 "the Car Park" means the area of the Common Parts shown
hatched blue on Plan A annexed hereto but subject to variation
in accordance with Clause 1.7
1.6 "the Supplemental Deed" means a deed of even date between
(inter alia) the parties hereto relating to (inter alia) the
provision by the Tenant of additional security for the
performance of its obligations under this Underlease
1.7 "the Common Parts" means the parts of the Building and all
fixtures fittings and furnishings and facilities within such
parts which from time to time are provided or designated by
the Landlord for the common or general use by or for the
benefit of all or substantially all the tenants and occupiers
of the Building and where appropriate visitors to the Building
which shall for the avoidance of doubt include the Car Park
and the Service Area the present position of such areas being
shown at ground floor first floor and second floor levels only
edged green on the Plans PROVIDED that any variations to the
extent of the Common Parts at the aforesaid levels shall not
render such
3
areas materially less commodious to the Tenant
1.8 "the Conduits" means gutters gullies pipes drains sewers
watercourses channels ducts flues wires cables communications
and special installations and other conducting media
1.9 "Demised Premises" means the premises described in the First
Schedule hereto and any permitted alterations or additions to
the same together with all fixtures in the nature of
Landlord's fixtures which are now or at any time hereafter may
be affixed to or in or upon the said premises including
without prejudice to the generality of the foregoing any of
the Conduits affixed to or in or upon the same and exclusively
serving the same but excluding the Plant
1.10 "Insured Risks" means the following risks to be included in
any policy or policies of insurance effected under the terms
of this Underlease namely the risks of fire storm tempest
flood lightning explosion earthquake aircraft and other aerial
devices articles dropped therefrom riot or civil commotion
malicious damage impact subsidence heave bursting and
overflowing of boilers water tanks apparatus or pipes (and in
4
the absolute discretion of the Landlord damage caused by
terrorist action) and such other insurable risks as the
Landlord shall from time to time upon reasonable notice
reasonably require to be insured
1.11 "Interest" means interest at the rate of three pounds per
centum per annum above the base rate or its equivalent for the
time being in force of National Westminster Bank plc or if
such base rate or equivalent no longer exists such alternative
rate set by the same or a comparable bank as is reasonably
nominated by the Landlord or if this provision shall in the
future become impossible to administer such other comparable
rate of interest as the Landlord shall from time to time
reasonably determine
1.12 "Landlord" shall include the person for the time being
entitled to the reversion immediately expectant on the
determination of the term hereby created and shall also be
deemed to include any Superior Landlord except for the
purposes of Clause 5
5
1.13 "the Lettable Space" means the internal space in the Building
(including for the avoidance of doubt the Demised Premises)
designed for occupation other than the Common Parts and the
lifts and the parts (a) designed for occupation by the
Landlord in its capacity as landlord of the Building and (b)
designed for occupation by statutory undertakers in their
capacity as statutory undertakers
1.14 "Loss of Rent" means loss for a period of five years of the
aggregate of all rents which can reasonably be expected from
time to time to become payable during the ensuing five years
to the Landlord in respect of the Demised Premises or all
parts of the Demised Premises
1.15 "Party Structures" means the footings foundations walls and
roofs separating and dividing the Building from any other
premises and not exclusively belonging to the Building
1.16 "Permitted Part" means any part of the Demised Premises that
is capable of being separately underlet without breaching any
fire or other statutory regulations
6
1.17 "Planning Acts" means the Town and Country Planning Xxx 0000
the Planning (Listed Buildings and Conservation Areas) Xxx
0000 the Planning (Hazardous Substances) Xxx 0000 the Planning
(Consequential Provisions) Xxx 0000 and the Planning and
Compensation Xxx 0000 and includes any other applicable town
and country legislation
1.18 "The Plans" means the plans annexed hereto
1.19 "Plant" means all lifts boilers central heating refrigeration
air conditioning and ventilation plant and apparatus
communications and special installations hot and cold water
and drinking water installations and boosting pumps sprinkler
systems and other fire prevention and fire fighting equipment
fire smoke and security alarms and systems smoke extraction
systems lighting and lightning protection installations
standby generators automatic controls and any other electrical
and mechanical equipment in or serving the Building or any
part thereof
1.20 "Reinstatement Cost" means the full reinstatement cost of the
Building including (but without limitation) allowance for
inflation in
7
costs the cost of demolition and clearance of debris the cost
of temporary support and protection incidental expenses
consequent upon rebuilding or reinstating including the cost
of compliance with all local authority and statutory
requirements architects' quantity surveyors' structural and
civil engineers' mechanical and electrical engineers' and
other professional fees together with VAT on all the foregoing
including without limitation VAT on any self supply under
Paragraphs 5 and 6 of Schedule 6A to the VAT Act whether or
not the Landlord has made a VAT Election
1.21 "the Services" shall have the meaning ascribed to it in
Paragraph l(ii) of the Fifth Schedule hereto
1.22 "the Service Area" means the area of the Common Parts the
present position of which is shown hatched yellow on Plan A
annexed hereto but subject to variation in accordance with
Clause 1.7
1.23 "Superior Landlord" means all Superior Landlords no matter how
remote
8
1.24 "Superior Lease" means the Lease under which the Landlord
holds the Demised Premises and any Lease or Leases superior
thereto
1.25 "Surveyor" means a surveyor (whether or not an employee of the
Landlord or any company associated with the Landlord) and who
acts in accordance with the principles of good estate
management
1.26 "Tenant" shall include its successors in title and permitted
assigns
1.27 "The Term" means the term hereby granted and any period of
holding over or any extension or continuance thereof whether
by statute or common law
1.28 "the Utilities" means air water sewage of all kinds gas
electricity wireless telegraphic communication and all other
forms of communication and other services serving the Demised
Premises
1.29 "VAT" means Value Added Tax or any similar tax from time to
time replacing it or performing a similar fiscal function
1.30 "VAT Act" means the Value Added Tax Act 1983 as amended from
time to time and any Act replacing
9
re-enacting or consolidating it
1.31 "VAT Election" means an election under Paragraph 2 of Schedule
6A to the VAT Act (or any equivalent provision) for exemption
to be waived which has effect in relation to the Building
1.32 "VAT Supply" shall have the meaning which "supply" has for the
purposes of the VAT Act
INTERPRETATION
--------------
2. In these presents unless there is something in the context or subject
inconsistent therewith:-
2.1 words importing the masculine gender only shall include the
feminine gender and vice versa
2.2 words importing the singular number only shall include the
plural number and vice versa and where there are two or more
persons included in the expression "the Tenant" covenants
contained in these presents which are expressed to be made by
the Tenant shall be deemed to be made by such persons jointly
and severally
2.3 words importing persons shall include corporations and vice
versa
2.4 any reference to a specific Act of Parliament or Acts of
Parliament or enactments generally
10
shall include any modification or re-enactment thereof for the
time being in force and shall include all instruments orders
regulations permissions and directions for the time being
issued or given thereunder or deriving validity therefrom
2.5 references to Clauses shall unless otherwise expressly
provided be to Clauses of this Underlease
2.6 the index and clause headings hereto shall not affect the
construction of these presents
DEMISE HABENDUM AND REDDENDUM
-----------------------------
3. In consideration of the rents hereby reserved and of the covenants by
the Tenant hereinafter contained the Landlord HEREBY DEMISES unto the
Tenant ALL THAT the Demised Premises TOGETHER with the rights set out
in Part I of the Second Schedule hereto SUBJECT to the easements rights
and privileges specified in Part II of the Second Schedule hereto which
(in so far as they do not already affect the Landlord's estate in the
Demised Premises) are hereby EXCEPTED out of the demise AND RESERVED
unto the Landlord and all others to whom the Landlord may hereafter
grant the benefit of the same or any of them TO HOLD the
11
same (except and reserved and subject as aforesaid and subject also as
mentioned in Part III of the Second Schedule hereto) UNTO the Tenant
from the 25th day of March One thousand nine hundred and ninety three
for the term of TWENTY FIVE YEARS (subject to early determination as
herein provided) YIELDING AND PAYING therefor yearly during the Term
and so in proportion for any period less than a year FIRST:-
3.1 for the period from 29th September 1994 to 23rd June 1996 the
sum of SEVEN HUNDRED AND NINETY THREE THOUSAND NINETY NINE
POUNDS AND EIGHT XXXXX ((pound)793,099.08) per annum and
3.2 for the period from 24th June 1996 to 24th March 1998 the sum
of EIGHT HUNDRED AND NINETY FIVE THOUSAND FIVE HUNDRED AND
FIFTY POUNDS ((pound)895,550.00) per annum and
then subject to review as provided in the Third Schedule hereto such
rent to be paid quarterly in advance on the Twenty fifth day of March
the Twenty fourth day of June the Twenty ninth day of September and the
Twenty fifth day of December in each year and in each case without any
deduction whatsoever the first payment or a proportionate part thereof
to
12
be paid on 29th day of September One thousand nine hundred and ninety
four in respect of the period from the 29th day of September One
thousand nine hundred and ninety four to the day before the quarter day
immediately following thereafter (both dates inclusive) SECONDLY by way
of further or additional rent all such sums as shall become payable by
way of or on account of service charge under the Fifth Schedule hereto
such sums to be payable as therein provided THIRDLY by way of further
or additional rent a fair and reasonable proportion determined by a
Surveyor whose decision shall be final and binding (save in the case of
manifest error) of the sum or sums which the Landlord may expend in
effecting or maintaining or procuring the effecting and maintaining of
insurance of the Building including the Plant in the Reinstatement Cost
against (a) the Insured Risks (b) Loss of Rent and (c) property owner
and public liability with the intention that the Tenant will not bear
the cost of the proportion of the sums which are attributable to any
other Lettable Space such sum or sums to be paid on demand FOURTHLY by
way of further or additional rent the cost to the Landlord of supplying
electricity to
13
the Demised Premises taking into account any discount to which the
Landlord may be entitled and FIFTHLY by way of further or additional
rent Interest (as well after as before judgment) upon rents or any such
other sums payable by the Tenant to the Landlord calculated from the
date when the same become due until payment thereof such Interest to be
payable on demand SIXTHLY by way of further or additional rent VAT
payable by the Tenant to the Landlord under this Underlease SEVENTHLY
by way of further or additional rent but without prejudice to any other
right remedy or power herein contained or otherwise available to the
Landlord all such other sum or sums as may become payable by the Tenant
to the Landlord under the provisions of this Underlease but not
otherwise reserved as rent such sum or sums to be payable on demand
unless otherwise expressly hereinbefore provided for
TENANT'S COVENANT
-----------------
4. The Tenant HEREBY COVENANTS with the Landlord as follows:-
TO PAY RENT
-----------
4.1 To pay the rents sums and payments at the times and in the
manner at and in which the same are
14
hereinbefore reserved and made payable without any deduction
(except as aforesaid)
OUTGOINGS
---------
4.2.1 To pay and discharge all rates taxes duties charges
assessments impositions and outgoings whatsoever
whether parliamentary parochial local or of any other
description which are now or may at any time
hereafter be taxed assessed charged or imposed upon
or payable in respect of the Demised Premises or on
the owners or occupiers in respect thereof (including
for the avoidance of doubt the supply of electricity
charged via a meter in the Demised Premises and any
meter charge therefor) or a proportion properly
attributable to the Demised Premises of any such
outgoings as may be taxed assessed charged or imposed
upon or payable in respect of premises of which the
Demised Premises form part (such proportion to be
determined by the Surveyor whose decision shall be
conclusive) Provided that the Tenant shall not be
obliged to pay any rates taxes duties
15
charges assessments impositions or other such
outgoings arising in respect of the grant of this
Underlease any dealing with the reversion mediately
or immediately expectant on the determination of the
Term or the right to receive the rents payable
hereunder or any income or corporation tax or any
other tax on income profits or gains not otherwise
payable by the Tenant and for the avoidance of doubt
this Clause 4.2.1 does not apply to VAT unless on a
payment otherwise due under this Clause 4.2.1
4.2.2 To pay and indemnify the Landlord against all rates
taxes duties charges assessments impositions and
outgoings which are payable by the Landlord as a
result of the Demised Premises being vacant at any
date prior to the expiry or earlier determination of
the Term AND this sub-clause shall remain in force
notwithstanding the expiry or earlier determination
of the Term as aforesaid
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STATUTES AND BYE-LAWS
---------------------
4.3 At all times during the Term:-
4.3.1 to observe and comply in all respects with the
provisions and requirements of any and every Act of
Parliament so far as they relate to or affect the
Demised Premises or any part thereof or the user
thereof or the employment or residence therein of any
person whether by the or Tenant or any undertenant or
occupier of the Demised Premises
4.3.2 to execute all works and provide and maintain all
arrangements which by or under any Act of Parliament
or by any government department local authority or
other public authority or duly authorised officer or
Court of competent jurisdiction acting under or in
pursuance of any such Act are or may be directed or
required to be executed provided and maintained at
any time during the Term upon or in respect of the
Demised Premises or any part thereof or in respect of
the user thereof or the employment or residence
therein of any person
17
whether by the Tenant or any undertenant or occupier
of the Demised Premises
4.3.3 to indemnify the Landlord at all times against all
costs charges and expenses of or incidental to the
execution of any works or the provision or
maintenance of any arrangements so directed or
required under sub-clauses 4.3.1 and 4.3.2
4.3.4 not to do or omit or suffer to be done or omitted on
or about the Building any act or thing by reason of
which the Landlord may under any enactment incur or
have imposed upon the Landlord or become liable to
pay any penalty damages compensation costs charges
and expenses
PROVIDED ALWAYS that without prejudice to the foregoing the
Landlord and the Tenant shall be entitled to object to any
such directions provisions requirements or other matters
specified in this sub-clause in which event the Tenant at the
request of the Landlord but at the cost of the Tenant will
join with the Landlord in making any such objection
18
GAS ELECTRICITY WATER TELEPHONES AND REFUSE
-------------------------------------------
4.4 To pay and discharge and indemnify the Landlord against all
charges for the Utilities in connection with or consumed in
the Demised Premises and all meter rents in connection
therewith and all charges in connection with the collection of
refuse from the Demised Premises and to observe and perform
all regulations and requirements of the Utilities authorities
in respect of the Demised Premises in accordance with the
principles of good estate management
ABATEMENT OF NUISANCE
---------------------
4.5 From time to time to pay all costs charges and expenses
incurred by the Landlord in abating a nuisance in respect of
the Demised Premises and executing all such works as may be
necessary for abating a nuisance in obedience to a notice
served by a local or other competent authority
MISCELLANEOUS COSTS
-------------------
4.6 To pay to the Landlord all costs charges and expenses
(including legal costs and fees payable to surveyors
consultants and architects) which may be reasonably and
properly incurred by the Landlord:-
19
4.6.1 in or in contemplation of any proceedings under
Section 146 or Section 147 of the Law of Property Xxx
0000 or either of them or the preparation and service
of notice thereunder whether or not any right of
re-entry or forfeiture has been waived by the
Landlord or notice served under either of the said
sections is complied with by the Tenant or the Tenant
has been relieved under the provisions of the said
Act and notwithstanding forfeiture is avoided
otherwise than by relief granted by the Court
4.6.2 in connection with the preparation and service of all
schedules of dilapidations whether before or after
the expiration of the Term
4.6.3 in connection with the recovery of any arrears of
rent due hereunder including the charges of any
bailiff appointed to recover the same whether he
actually levies distress or not
4.6.4 otherwise in connection with any breach by the Tenant
of any covenants or conditions
20
herein contained and
4.6.5 in connection with any valuation of the Demised
Premises for insurance purposes provided such
valuations are not more frequent than once every year
REPAIR
------
4.7 To repair and keep the Demised Premises and all appurtenances
of whatsoever nature belonging to the Demised Premises in good
and substantial repair (damage by any of the Insured Risks and
damage by terrorist action whether or not the Landlord had
opted to insure against the same excepted save to the extent
that the policy or policies of insurance shall have been
vitiated or payment of any of the policy moneys withheld or
refused by reason of any act neglect or default of the Tenant
or any underlessee or their respective servants agents
licensees or invitees)
SERVICE OF PLANT
----------------
4.8 To keep any plant installed by the Tenant properly maintained
DECORATION
----------
21
4.9.1 As often as may be necessary and in any event in the
fifth year of the Term and thereafter in every
succeeding fifth year thereof and also during the
last year thereof (howsoever the same may be
determined) to paint all the internal surfaces
originally painted and all additions thereto in the
Demised Premises with two coats at least of good
quality paint and well and sufficiently to grain
varnish paper plaster and emulsion all the interior
parts of the Demised Premises as are usually or ought
to be so treated and generally to redecorate
throughout restoring and making good the Demised
Premises in accordance with good standards of
workmanship and materials
4.9.2 As often as the Landlord may reasonably consider
necessary to clean and treat in an appropriate manner
to the reasonable satisfaction of the Landlord all
materials surfaces and finishes of the interior of
the Demised Premises which ought normally to be so
cleaned and treated and in par-
22
ticular (but without prejudice to the generality of
the foregoing) all wood plaster metal granite and/or
stonework and to wash down all surfaces requiring to
be washed PROVIDED THAT this Clause shall not create
any greater obligation in respect of the requirements
for decoration contained in Clause 4.9.1 than are
imposed by Clause 4.9.1
4.9.3 Not to decorate the surfaces of the Demised Premises
not previously decorated
GLAZING
-------
4.10 To clean all glazing of the Demised Premises (except the
external surfaces of the windows) not less frequently than
once in every month of the Term
YIELD UP
--------
4.11.1 At the expiration or sooner determination of the Term
quietly to yield up unto the Landlord the Demised
Premises and in such state and condition as shall in
all respects be consistent with a full and due
performance by the Tenant of the covenants on the
Tenant's part herein contained
23
(damage by any of the Insured Risks excepted save to
the extent that the policy or policies of insurance
shall have been vitiated or payment of any of the
policy moneys withheld or refused by reason of any
act neglect or default of the Tenant or any
underlessee or their respective servants agents
licensees or invitees) but the Tenant shall be
entitled (and on the demand of the Landlord bound) to
remove all or any Tenant's fixtures and fittings and
on the demand of the Landlord shall be bound to
remove any other fixtures fittings or improvements
installed in the Demised Premises during the Term the
Tenant making good all damage caused by any removal
as aforesaid to the reasonable satisfaction of the
Surveyor and all relevant authorities
4.11.2 Wherever any plant or machinery or other fixtures
fittings or improvements to be removed are connected
to or take supplies from any of the main services
they shall be disconnected in such a manner that all
24
redundant service media are removed and sealed off at
points as close as possible to the various ring mains
or principal distribution pipes which provide the
supplies such removal and sealing off to be carried
out so as not to interfere with the continued
function of the remaining services
PERMIT ENTRY FOR INSPECTION
---------------------------
4.12 To permit the Landlord or the Landlord's agents or such
workmen as may be authorised by them (upon at least 48 hours
prior written notice except in the case of emergency) at
convenient times and as often as may be necessary to enter
into and upon the Demised Premises and examine the state of
repair and condition of the same and within three calendar
months or sooner if requisite after notice in writing to the
Tenant shall have been given or left at the Demised Premises
of all defects and wants of reparation for which the Tenant is
liable hereunder found on such examination to commence to
repair and make good the same according to such notice and the
covenants in that behalf hereinbefore con-
25
tained and thereafter continue diligently with such work and
in case the Tenant shall make default in so doing it shall be
lawful but not obligatory for workmen or others to be employed
by the Landlord to enter upon the Demised Premises and repair
and restore the same and all expenses reasonably incurred
thereby (including professional fees) and Interest thereon
from the date of expenditure by the Landlord shall on demand
be paid by the Tenant to the Landlord and if not so paid shall
be recoverable by the Landlord as a liquidated debt and shall
be recoverable in the same manner as the Landlord is entitled
to recover overdue rent
PERMIT ENTRY FOR REPAIR
-----------------------
4.13 To permit the Landlord and the Superior Landlord or their
respective agents or workmen and the tenants and occupiers of
any other part of the Building or any premises adjoining the
same now or at any time hereafter belonging to the Landlord
and/or the Superior Landlord with tools and apparatus at any
time or times during the Term (at reasonable hours in the
daytime upon not less than 48 hours prior written no-
26
xxxx except in the case of emergency) to enter upon the
Demised Premises for the purposes set out in Part II of the
Second Schedule hereto
IMPROVEMENT AND ALTERATIONS
---------------------------
4.14.1 Subject to Clause 4.14.3 not to execute any
improvement in respect of the Demised Premises and
not to make any structural alteration thereto nor
otherwise cut maim or remove any of the walls
ceilings floors girders or timbers of the Demised
Premises (unless for the purpose of making good
defects) nor make alter nor cause or permit to be
altered the exterior appearance of the Demised
Premises and not to make any alteration in or
addition to the Demised Premises
4.14.2 not to carry out any development or change of use on
the Demised Premises or any part thereof within the
meaning of the Planning Acts
4.14.3 not to erect nor alter any partitions or other items
of a non structural nature in the Demised Premises
without the Landlord's prior written consent which
consent
27
provided such proposed erection or alteration will
not interfere with or impair the performance of the
Plant or the Conduits shall not be unreasonably
withheld PROVIDED THAT no such consent shall be
required for alterations which are both de minimis in
themselves and which remains de minimis when taken
together with other such de minimis alterations which
have been permitted under this Clause
4.14.4 not to alter the electrical wiring and installations
in the Demised Premises so as to exceed the design
capacity of the installations to the Demised Premises
nor upgrade the design capacity of the installations
to the Demised Premises other than in accordance with
the Regulations of the Institution of Electrical
Engineers and the consent of the Landlord (such
consent not to be unreasonably withheld) and not to
overload the same
4.14.5 not to remove any of the Plant or the Conduits
(except to renew or amend the same or any part
thereof which is included in
28
the Demised Premises)
4.14.6 to the extent (if any) required by the Landlord the
Tenant will remove at the expiration or sooner
determination of the Term any alterations permitted
under this Underlease and will reinstate the Demised
Premises to their original state and condition making
good any damage caused to the Landlord's reasonable
satisfaction
SIGNS
-----
4.15 Not to exhibit or permit or suffer to be exhibited on the
exterior (so as to be visible from the outside) of the Demised
Premises any aerial sign signboard advertisement hoarding
fascia placard xxxx notice poster or other notification
whatsoever except such as shall have been previously approved
by the Landlord (such approval not to be unreasonably withheld
in relation to any sign boards on or near to the exterior of
the door of the Demised Premises at second floor level showing
the occupiers' names required under Section 348 of the
Companies Xxx 0000 or similar statute) in addition to any
permission required by statute regulation or
29
bye-law and shall thereafter be maintained to the satisfaction
of the Landlord
GOODS OUTSIDE THE PREMISES
--------------------------
4.16 Not to place or hang or permit or suffer to be placed or hung
any goods outside the building lines of the Building nor to
exhibit any goods or articles outside the said lines
AUCTIONS
--------
4.17 Not to hold or permit or suffer to be held any sale by auction
which imposes additional statutory obligations concerning
attendance of members of the public on the Demised Premises
PLANNING
--------
4.18.1 Not at any time during the continuance of the Term to
do or omit or permit to be done or omitted anything
on or in connection with the Demised Premises the
doing or omission of which shall be a contravention
of the Planning Acts or of any licences consents
permissions approvals and conditions (if any) granted
or imposed thereunder or under any enactment repealed
thereby and to indemnify the Landlord against all
actions proceedings damages
30
penalties costs charges claims and demands in respect
of such acts and omissions or any of them
4.18.2 In the event of the Landlord giving written consent
to any of the matters prohibited by Clause 4.14
hereof or for which the Landlord's consent is
required thereunder and in the event that such
matters require licence consent permission or
approval under the provisions of the Planning Acts
not to submit the application to the appropriate
national or local or other public authority
(hereinafter referred to as the said planning
authority) unless and until the form and wording of
the application and any drawings calculations and
information to accompany the same meet with the
approval in writing of the Landlord (such approval
not to be unreasonably withheld) and subject thereto
any application shall be made at the cost of the
Tenant and (if requested) in the name of the Landlord
and all other persons (if any) interested in the
Demised Pre-
31
mises and of all such licences consents permissions
and approvals granted or refused in pursuance of such
approved applications forthwith to give notice with a
copy thereof to the Landlord and in the event of the
said planning authority indicating its willingness to
grant the desired licence consent permission or
approval only with modifications or subject to
conditions not to accept such modifications or
conditions or implement the development or change of
use to which such licence consent permission or
approval relates without the consent in writing of
the Landlord (such consent not to be unreasonably
withheld) and to give the Landlord forthwith full
particulars of such modifications or conditions
4.18.3 Not to implement or otherwise put into effect any
licence consent permission or approval relating to
the Demised Premises or any part thereof or otherwise
affecting the same under or in pursuance of the
Planning Acts without first obtaining the
32
consent in writing of the Landlord (such consent not
to be unreasonably withheld)
4.18.4 If and when a Landlord's consent is obtained pursuant
to Clause 4.18.2 and/or 4.18.3 to carry out works and
other things authorised by the said consent and the
planning permission therein referred to at the cost
in all respects of the Tenant and to observe and
perform all conditions attached to such consent and
planning permission respectively and to keep the
Landlord effectually indemnified against all actions
proceedings damages penalties costs charges claims
and demands whatsoever in respect of the costs of the
said application and works and things done in
pursuance of the said planning permission and in
respect of all breaches (if any) of the said
conditions and every part thereof respectively
4.18.5 To give notice forthwith to the Landlord and produce
a copy of any notice order or proposal for a notice
or order served on the Tenant under the Planning Acts
and if
33
so required in writing by the Landlord at the cost of
the Landlord to make or join in making such
objections or representations in respect of any
proposal as the Landlord may require
4.18.6 To comply at the Tenant's own cost with any notice or
order served under the provisions of the Planning
Acts on any person relating to the Demised Premises
4.18.7 If the Tenant shall receive any compensation with
respect to the Tenant's interest hereunder because of
revocation or modification of a planning permission
or of any restriction placed upon the user of the
Demised Premises under or by virtue of the Planning
Acts then unless the Landlord shall have already
received compensation the same shall be apportioned
between the Landlord and the Tenant in the same
proportion as the value of their respective interests
in the Demised Premises to be determined in the event
of dispute by an independent surveyor with at least
ten years experience of the sale and leasing
34
and valuation of offices in the City of London acting
as an expert and not an arbitrator to be appointed
(in case the parties are unable to agree on such
appointment) by the President for the time being of
the Royal Institution of Chartered Surveyors whose
fees and those of the said surveyor shall be paid as
the said surveyor shall direct
RESTRICTION ON PLANNING APPLICATIONS AND DEVELOPMENT
----------------------------------------------------
4.19 Notwithstanding Clauses 4.14 and 4.18 not to make any
application for planning permission in respect of the Demised
Premises or to carry out any development or works or change of
user whatsoever at the Demised Premises if the making of such
application for planning permission or the grant of a planning
permission pursuant thereto or the carrying out of such
development or works or change of user would or might
reasonably be expected to give rise to any tax charge or other
levy payable by the Landlord or would or might reasonably be
expected to give rise to the compulsory acquisition of the
Demised Premises or any interest therein without
35
first giving the Landlord a full indemnity for such
eventualities
ASSIGNMENT AND UNDERLETTING
---------------------------
4.20.1 Not to assign transfer mortgage charge underlet or
part with or share the possession or occupation of
the Demised Premises or any part thereof PROVIDED
however that the Landlord shall not unreasonably
withhold consent to an assignment or charging of the
whole of the Demised Premises or to an underletting
of the whole or a Permitted Part so long as the
Tenant shall first submit written details to the
Landlord of:-
(a) any premises proposed to be underlet
(being either the whole of the Demised
Premises or a Permitted Part)
(b) the rents proposed to be payable
pursuant to any proposed underletting or
the premium to be paid on any proposed
assignment
(c) the other terms of the proposed
underletting or assignment
36
(d) evidence that such rents are the open
market rents
(e) the identity of the proposed underlessee
or assignee and any surety and all
financial information (with copies)
obtained by the Tenant in relation
thereto sufficient to demonstrate that
the proposed underlessee or assignee is
patently able to meet the obligations of
the proposed underlease or this
Underlease (as the case may be) and in
all respects constitutes a good and
substantial tenant
4.20.2 Any assignee or underlessee approved by the Landlord
as aforesaid shall first enter into a direct covenant
with the Landlord to observe and perform the
covenants herein (except in the case of an
underletting (a) the covenant to pay the rents hereby
reserved and (b) any covenants herein which are
inconsistent with those which the Tenant is required
to impose in such underlease in which case
37
the underlessee will covenant with the Landlord to
observe and perform the latter in lieu and in the
case of an underletting of a Permitted Part only to
the extent that the covenants herein are appropriate
to the Permitted Part)
4.20.3 If the Landlord shall reasonably so require a surety
reasonably acceptable to the Landlord shall be
obtained who shall prior to or contemporaneously with
the making of such underlease or assignment covenant
with the Landlord in the terms of the Fourth Schedule
hereto with such amendments only as are necessary by
virtue of such covenants being contained in a
separate deed and given later than the date of this
Underlease and the number of sureties and (in the
case of an underletting) by virtue of the fact that
the obligations being guaranteed by the surety are
those in the proposed underlease and not these
presents
4.20.4 Any permitted underlease whether of the whole or a
Permitted Part shall contain:-
38
(a) provisions which enable the Tenant to
recoup from the proposed underlessee an
appropriate proportion of the service
charge payable by the Tenant pursuant to
the provisions hereof
(b) provisos for rent review which the
Tenant hereby covenants to operate and
enforce corresponding both as to terms
and dates with the provisions set out in
the Third Schedule hereto
(c) an unqualified covenant on the part of
the underlessee that the underlessee
will not otherwise than by way of an
assignment of the whole of such premises
or an underletting of the whole or a
part thereof (being a further Permitted
Part and subject to Clause 4.20.5)
assign transfer underlet part with or
share the possession or occupation of or
mortgage or charge the whole or any part
of the premises thereby demised except
to the same extent permitted to the
Tenant under clause 4.20.10
39
(d) a covenant on the part of the
underlessee that the underlessee will
not assign the whole of the premises
thereby demised or underlet the whole or
such permitted part thereof without
obtaining the previous consent in
writing of the Landlord under these
presents (such consent not to be
unreasonably withheld)
(e) such covenants by the underlessee which
the Tenant hereby covenants to enforce
as to prohibit the underlessee from
doing or suffering any acts or things
upon or in relation to the premises
demised by the underlease which will
contravene any of the Tenants
obligations hereunder and
(f) a condition for re-entry
4.20.5.1 No underlease shall comprise other than:-
(a) the whole of the Demised Premises or
(b) a Permitted Part
40
4.20.5.2 Any underlease of a Permitted Part shall
contain an agreement authorised by the Court
pursuant to Section 38(4) of the Landlord
and Xxxxxx Xxx 0000 (as amended) excluding
in relation to that underlease the
provisions of sections 24-28 (inclusive) of
the Landlord and Xxxxxx Xxx 0000
4.20.5.3.1 Not more than four underleases of Permitted
Parts shall subsist at any one time PROVIDED
THAT not more than three shall be permitted
at any one time if the Tenant or a Permitted
Occupier (as hereinafter defined) remains in
occupation of any remaining part or parts of
the Demised Premises
4.20.5.3.2 In addition to the underleases permitted
under Clause4.20.5.3.1 above the Tenant
(here meaning Euro Brokers Holdings Limited
or a group company) shall also be permitted
to underlet a Permit-
41
xxx Part to Liberty Euro Brokers Limited
("Liberty") for so long as Liberty remains in the
same group (as defined in Clause 4.20.10.2) of the
Tenant
4.20.6 No fine or premium shall be taken from any
underlessee
4.20.7 Neither the Demised Premises nor any part thereof
which the Tenant may be permitted to underlet in
accordance with the provisions hereinbefore contained
shall be underlet at less than the rent reasonably
achievable in the open market
4.20.8 The Tenant shall throughout the Term notify the
Landlord forthwith if the Demised Premises or any
part thereof which the Tenant may have been permitted
to underlet under the provisions hereinbefore
contained reverts to the Tenant for any reason
(including but without prejudice to the generality of
the foregoing surrender disclaimer forfeiture or any
notice or failure to serve notice or apply to the
Court under the Landlord and Tenant Act
42
1954) and of any proceedings under the said Act
4.20.9 The Tenant shall keep the Landlord fully informed of
(and of all negotiations with the underlessee in
relation to) any rent review under an underlease and
forthwith supply all such further information in
relation thereto as the Landlord may reasonably
require and will not settle any rent review except in
accordance with the written agreement of the Landlord
which agreement shall not be unreasonably withheld
4.20.10.1 Notwithstanding anything hereinbefore contained in
this Clause 4.20 the Tenant may share occupation
of the Demised Premises with a company which is
throughout its occupation of the Demised Premises
a member of the same group of companies as the
Tenant on condition that no tenancy is created by
that occupation and further on condition that the
Landlord is promptly advised in writing at the
43
beginning and end of any sharing arrangement and
of the identity of the sharing company
4.20.10.2 For the purposes of Clause 4.20.10.1 above the
company will be deemed to be in the same group as
the Tenant if throughout its occupation of the
Demised Premises it meets the criteria set out in
Section 42 (1) of the Landlord and Xxxxxx Xxx 0000
in the form of that Section as it exists at the
date hereof or if it is a company whose issued
equity share capital (as defined in Section 744 of
the Companies Act 1985) is beneficially owned as
to at least 50% (or 20% whilst this Underlease
remains vested in Euro Brokers Holdings Limited or
a group company) by the Tenant or another member
of the same group as the Tenant
NOTICE OF ASSIGNMENT OR UNDERLETTING
------------------------------------
4.21 Within one calendar month next after any transfer mortgage
charge assignment underlease or
44
devolution of the Demised Premises or of any part thereof
permitted hereunder to give notice in writing of such transfer
mortgage charge assignment underlease or devolution and of the
name address and description of the transferee mortgagee
chargee assignee or person upon whom the Demised Premises or
any part thereof may have devolved or of the underlessee (as
the case may be) to the Landlord AND to produce to the
Landlord or the Solicitors for the time being of the Landlord
the instrument of transfer mortgage charge assignment or
devolution or the counterpart of the underlease and leave with
it or them two certified copies of any of the foregoing and to
pay its and/or their reasonable fee therefor being not less
than twenty pounds for the registration of a transfer
assignment mortgage or charge and fifty pounds (plus VAT) for
the registration of an underlease together with such fees as
are payable to the Superior Landlord or its solicitors
SCHEDULE OF OCCUPANCIES
-----------------------
4.22 If and when called upon by the Landlord so to do to supply to
the Landlord from time to time
45
a schedule containing full details of all subsisting
occupancies of the Demised Premises and every part thereof
USER
----
4.23.1 Not to use the Demised Premises or any part thereof
or permit or suffer the same to be used for any
illegal or immoral purpose
4.23.2 Not to use the Demised Premises or any part thereof
or permit or suffer the same to be used except as
offices within Class B1 in the Schedule to the Town
and Country Planning (Use Classes) Order 1987; and
for no other purpose whatsoever
4.23.3 Without prejudice to the foregoing provisions of this
Clause 4.23 if the Tenant or any permitted occupier
uses the Demised Premises for any different use the
Landlord may treat such use as a deemed application
by the Tenant for consent to change the permitted use
and the Landlord may at any time during the
continuation of such use grant consent to such
application accordingly
46
NUISANCE
--------
4.24 Generally not to do or permit or suffer to be done upon or in
connection with the Building or in the Demised Premises or any
part thereof anything which shall be or tend to be a nuisance
or cause of damage to the Landlord or to any neighbouring
adjoining or adjacent property or the owner or occupier
thereof or to the public
OVERLOADING
-----------
4.25 Not to place or keep or permit to be placed or kept in the
Demised Premises any heavy articles in such position or in
such quantity or weight or otherwise in such manner howsoever
as to overload or cause damage to or be in the reasonable
opinion of the Landlord likely to overload or cause damage to
the Building
DRAINAGE
--------
4.26 To take all such measures as may be reasonably necessary to
ensure that any effluent discharged into the drains and sewers
which belong to or are used for the Building or any part
thereof in common with other premises or not will not be
corrosive or in any way harmful to
47
the said drains or sewers or cause any obstruction or deposit
therein
ELECTRICAL INSTALLATIONS
------------------------
4.27 Not to use the electrical wiring and electrical installations
in the Demised Premises or any part thereof in such a way as
to overload the wiring system or any other part of the
electrical installations and within three months of any
request by the Landlord in that behalf to produce a
certificate of test of the electrical wiring and electrical
installations in the Demised Premises such certificate to be
given by a competent electrical engineer in accordance with
the regulations of the Institution of Electrical Engineers and
the local electricity supply authority or either of them
ENCROACHMENTS
-------------
4.28.1 Not to obstruct or suffer to be obstructed any of the
windows or lights belonging to the Demised Premises
and to use its best endeavours to prevent any new
window light passage drainage or other encroachment
or easement to be made into against upon or over the
Demised Premises or any part
48
thereof other than those emanating from any land or
buildings of the Landlord and/or the Superior
Landlord
4.28.2 In case any encroachment or easement whatsoever shall
be attempted to be made or acquired by any person or
persons whomsoever to give notice thereof in writing
to the Landlord immediately the same shall come to
the notice of the Tenant and at the cost of the
Tenant to do all such things as may be proper for
preventing any encroachment or easement being made or
acquired other than those emanating from any land or
buildings of the Landlord and/or the Superior
Landlord
PERMIT INSPECTION BY PROSPECTIVE PURCHASERS
-------------------------------------------
4.29 At all reasonable times upon not less than 48 hours prior
notice during the Term to permit all prospective purchasers of
or dealers in the Landlord's reversionary interest by order in
writing of the Landlord or the Landlord's agents to view and
take measurements of the Demised Premises without interruption
49
PERMIT RE-LETTING NOTICES
-------------------------
4.30 To permit the Landlord or the Landlord's agents at any time
within twelve calendar months next before the expiration or
sooner determination of the said Term or at any time while any
of the circumstances described in Clause 6.1 shall subsist to
enter upon the Demised Premises and to fix and retain without
interference upon any suitable parts thereof notice boards for
re-letting the same (or at any time during the Term for any
other dealing with the same) provided that these do not
materially affect access of light to the windows of the
Demised Premises and to permit all persons by order in writing
of the Landlord and/or the Superior Landlord or their
respective agents to view the Demised Premises at reasonable
hours in the daytime upon at least 48 hours notice without
interruption
PERMIT BUILDING ON ADJOINING LAND
---------------------------------
4.31 To permit the Superior Landlord or any party now or hereafter
authorised by the Superior Landlord at any time during the
Term to erect or rebuild or alter any buildings or erections
50
facing adjoining or near to the Building to any extent and in
the manner permitted by the Superior Lease notwithstanding
that the building so erected rebuilt or altered may obstruct
or interfere with the access of light or air for the time
being to or enjoyed with the Demised Premises or any part
thereof or any buildings for the time being thereon
NO CLAIM FOR BUILDING WORKS
---------------------------
4.32 Not to make or permit or suffer any objection to or claim in
respect of any works of construction building alteration
addition or repair carried out upon any other part of the
Building by the Landlord and/or the Superior Landlord or any
party now or hereafter authorised by the Landlord and/or the
Superior Landlord or by any of the other tenants and occupiers
of the Building or upon any land or property adjoining or near
any part of the Demised Premises by the Landlord and/or the
Superior Landlord or any party now or hereafter authorised by
the Landlord and/or the Superior Landlord or by the tenants
and occupiers of such land or property PROVIDED THAT any such
matters
51
(when undertaken by the Landlord or its agents) shall not
materially interfere with the Tenant's use and enjoyment of
the Demised Premises
COSTS OF LICENCES
-----------------
4.33 To pay the Landlord's reasonable and proper legal expenses
managing agents' and surveyors' and consultants' fees
(including disbursements and stamp duties and the fees of any
surveyors in considering plans or the execution of any works
carried out pursuant to any licence) resulting from all
applications by the Tenant for any consent or approval of the
Landlord or its managing agents or surveyors required by these
presents including charges fees and disbursements actually
incurred in cases where consent is refused or the application
is withdrawn for any reason whatsoever except where such
consent is shown by a Court to have been unreasonably withheld
GIVE NOTICES
------------
4.34 To give written notice forthwith to the Landlord of:-
4.34.1 any notice order or proposal for a notice or order
served on the Tenant by any per-
52
son or authority and to provide the Landlord with a
copy thereof and if so required in writing by the
Landlord and at the cost of the Landlord to join in
making such objections or representations in respect
of any such notice order or proposal as the Landlord
may require and
4.34.2 any defect in the Demised Premises which might give
rise to a duty of care on the Landlord under the
Defective Premises Xxx 0000 or otherwise
INDEMNITIES
-----------
4.35 The Tenant will keep the Landlord fully indemnified against
all damages losses costs expenses proceedings and liabilities
arising directly or indirectly from:-
4.35.1 the existing state of repair or use of the Demised
Premises and/or any works carried out at the Demised
Premises
4.35.2 any breach of the Tenant's obligations contained in
this Lease or any failure to comply with any Act of
Parliament
4.35.3 imposition on the Landlord of any tax levy charge or
other fiscal imposition of any
53
nature including (without limitation) penalties and
interest on overdue tax relating to any works carried
out at the Demised Premises by the Tenant its
underlessees or any persons authorised by it or them
or any breach of any covenant on the part of the
Tenant
BREACH OF UNDERLEASE COVENANTS
------------------------------
4.36 In the event of a breach non-performance or non-observance of
any of the covenants conditions agreements and provisions
contained or referred to in these presents (except the
covenant for payment of rent) or in any underlease of the
Demised Premises or any part thereof or any other part of the
Building forthwith upon discovering the same to give full
particulars thereof to the Landlord and in the case of these
presents to take and institute all necessary steps and
proceedings to remedy such breach non-performance or
non-observance or in the case of any underleases of the
Demised Premises or any part thereof to either enforce the
covenant for re-entry or take such other action to enforce
such covenant or covenants as
54
the Landlord shall reasonably require
ELECTRONIC EQUIPMENT
--------------------
4.37 Not to use or permit or suffer any radio electric or
electronic equipment to be used in the Demised Premises or the
Common Parts in such manner or condition as to cause electric
electronic or other forms of interference to any other part of
the Building or any adjoining or neighbourlng premises or
equipment owned or operated therein
AERIALS AND FLAG POLES
----------------------
4.38 Not to erect or permit or suffer to be erected any external
wireless or television aerial or flag pole on the Demised
Premises without the previous consent of the Landlord in
writing such consent not to be unreasonably withheld
NOT TO VITIATE INSURANCE
------------------------
4.39 Not to do or permit or suffer to be done any act or thing
which may make void or voidable any policy for the insurance
of the Building or any part or parts thereof or which may
cause an increased premium or loading to be payable for such
insurance unless repayment is made to the Landlord of all sums
paid by way of increased
55
premiums and loading and all expenses incurred by it in
consequence of any act or default of the Tenant or any
underlessee or the servants agents licensees or invitees of
the Tenant or any underlessee
TO PAY FOR REBUILDING IF INSURANCE MONEY IRRECOVERABLE
------------------------------------------------------
4.40 In the event of the Building or any part thereof being
destroyed or damaged by any of the Insured Risks and the
insurance money under any insurance against the same effected
thereon by the Landlord being wholly or partially
irrecoverable by reason solely or in part of any act neglect
or default of the Tenant or any underlessee or the servants
agents licensees or invitees of the Tenant or any underlessee
then and in every such case the Tenant will forthwith pay to
the Landlord the whole or (as the case may require) a fair
proportion of the cost of completely rebuilding and
reinstating the same
USER AND INSURANCE - TO PAY COSTS
---------------------------------
4.41 In the event that user or proposed user of the Demised
Premises shall result in an increase in the insurance premium
payable by the Land-
56
lord or if the Landlord's insurers shall require any works to
be carried out to the Demised Premises or their appurtenances
as a result of such user the Tenant shall repay on demand to
the Landlord the full amount of such increased premium and
shall comply with all requirements of the Landlord's insurers
as aforesaid and shall pay on demand to the Landlord the
Landlord's proper costs arising as- a result of any such
requirement including all proper legal expenses and managing
agents' and surveyors' and other professional fees and
disbursements
COVENANTS IN LANDLORD'S TITLE
-----------------------------
4.42 At all times to observe and perform all and singular the
covenants conditions provisions and stipulations referred to
in Part III of the Second Schedule hereto so far as they
relate to or affect the Demised Premises or any part thereof
(save insofar as they are inconsistent with the terms of this
Underlease) and at all times to indemnify the Landlord from
and against all actions proceedings costs claims and demands
arising or which may arise out of
57
any breach or non-observance of any of the said covenants and
stipulations save as aforesaid
UNLOADING
---------
4.43 That all loading and unloading of vehicles in connection with
the use of the Demised Premises and the activities carried on
thereon or therein shall take place within the boundaries of
the Building and that no such loading or unloading of vehicles
as aforesaid shall take place from or in any highway
PARKING
-------
4.44 Not to park or suffer to be parked any vehicle in or upon any
private road access way or service area except in so far as
may be necessary to enable such vehicle to be loaded or
unloaded and such loading or unloading shall be carried out as
expeditiously as possible and in such a manner as to cause no
inconvenience to any persons lawfully using the said private
road access way or service area
REGULATIONS
-----------
4.45 To comply with all such lawful and reasonable regulations and
directions as the Landlord may from time to time make or give
for the orderly
58
convenient and proper management of the Building or for the
regulation of vehicular traffic into from and within the same
VALUE ADDED TAX
---------------
4.46.1 Where this Underlease requires the Tenant to repay
reimburse or provide any amount or other
consideration in respect of a VAT Supply to the
Tenant by the Landlord it will be deemed to be
exclusive of any VAT chargeable on that VAT Supply
(whether by virtue of a VAT Election made or to be
made or otherwise) and the Tenant will pay to the
Landlord a sum equal to that VAT and the Landlord
will within thirty days of receipt of that sum render
a valid VAT invoice for it to the Tenant
4.46.2 Where this Underlease requires the Tenant to pay
repay reimburse or provide any amount or other
consideration in respect of a VAT Supply to the
Landlord the Tenant will pay to the Landlord a sum
equal to any VAT charged to the Landlord on that VAT
Supply by reference to that amount or consideration
or where the VAT Supply
59
relates to the Building as a whole or to the Common
Parts a fair proportion of that sum (such proportion
to be conclusively determined by the Surveyor) less
any part of that VAT or the proportion of that VAT
(as the case may be) for which the Landlord is
entitled to credit under Sections 14 and 15 of the
VAT Act or any equivalent legislation
4.47 Supplemental Deed
-----------------
4.47.1 The Tenant (here meaning Euro Brokers Holdings
Limited) shall observe and perform the obligations of
the Tenant contained in the Supplemental Deed
4.47.2 The Tenant (excluding Euro Brokers Holdings Limited)
shall observe the obligations of the Tenant contained
in the Supplemental Deed in so far as they have not
been performed but in any event excluding Clauses 4,
5 and 6 of such Deed
LANDLORD'S COVENANTS
--------------------
5. The Landlord HEREBY COVENANTS with the Tenant as follows:-
60
QUIET POSSESSION
----------------
5.1 That the Tenant duly paying the said rents and sums and other
payments hereby reserved and made payable and observing and
performing the covenants and conditions therein contained and
on the Tenant's part to be observed and performed shall and
may peaceably and quietly possess and enjoy the Demised
Premises during the Term without any disturbance by the
Landlord or any persons lawfully claiming through under or in
trust for the Landlord
INSURANCE
---------
5.2 To procure that the Building is insured and kept insured in
the names of the Landlord the Superior Landlord and any other
persons the Landlord and/or the Superior Landlord reasonably
thinks fit against loss or damage by the Insured Risks in an
insurance office of good repute to be selected by the Superior
Landlord in such amount as the Superior Landlord from time to
time considers to be the full reinstatement value particulars
of the policy of insurance and evidence of payment of the
current year's premium to be produced to the Ten-
61
ant as soon as practicable upon written demand but not more
that once a year and further in the event of the destruction
of or damage by any of the Insured Risks to the Demised
Premises or any part thereof or any other parts of the
Building which makes the Demised Premises incapable of
beneficial use and occupation with all convenient speed (as
soon as the necessary labour materials permits and consents
can be obtained) to use its reasonable endeavours to procure
that the Superior Landlord complies with its repairing and
reinstating provisions contained in clause 5.2.1 of the
Superior Lease
PAY SUPERIOR LEASE RENT
-----------------------
5.3 To pay the rent reserved by the Superior Lease and to perform
so far as the Tenant is not liable for such performance under
the covenants on its part contained in this Underlease
(insofar as they relate to the Demised Premises) the tenant's
covenants contained in the Superior Lease and to use
reasonable endeavours at the written request and cost of the
Tenant to obtain (where the Tenant has applied for consent
under this Underlease which also requires the
62
consent of the Superior Landlord) any consent which may be
required from the Superior Landlord
SERVICES
--------
5.4 To use all reasonable endeavours to provide the Basic Services
and also any Optional Services (both as defined in the Fifth
Schedule) in accordance with the principles of good estate
management that are reasonably necessary for the use and
enjoyment of the Demised Premises (and other premises in the
Building which have been demised) and appropriate for the time
of day or the time of year PROVIDED that the Landlord shall
have no liability to the Tenant for:-
5.4.1 failure to provide a Service (also as defined in the
Fifth Schedule hereto) during any period when the
Tenant is more than one month in arrears with payment
of any monies properly due from the Tenant to the
Landlord hereunder
5.4.2 the interruption of a Service for reasons of
inspection maintenance repair or other works (in
which event the Landlord will
63
restore the relevant Service as soon as reasonably
practicable)
5.4.3 failure to provide a Service due to damage breakdown
inclement weather shortage of fuel or water or any
other cause beyond the Landlord's reasonable control
(although the Landlord will then take all reasonable
steps to restore the relevant Service or (where
practicable) provide an alternative Service as soon
as reasonably practicable)
5.4.4 withdrawal of a Service if the Landlord reasonably
considers it no longer appropriate
5.5 VAT
---
5.5.1 Not later than 7 days (or if the Tenant has underlet
the whole or a Permitted Part or Parts of the Demised
Premises in accordance with the terms of this
Underlease then 30 days) before the first time when
for VAT purposes a taxable VAT Supply to the Tenant
is made under this Underlease by reason of a VAT
Election (the first "tax point") the Landlord shall
give writ-
64
ten notice to the Tenant that it will be charging VAT
with effect from that time 5.5.2 If at any time the
Landlord or any other person shall have made a VAT
Election and on the basis of the VAT Election the
Landlord charges or intends to charge to the Tenant
any amount in respect of VAT in relation to this
Underlease the Landlord shall if requested in writing
by the Tenant (and only once in respect of the same
Landlord) provide the Tenant with copies of:-
5.5.2.1 the VAT registration certificate of the
Landlord or any person making the supply to
the Tenant for VAT purposes; and
5.5.2.2 either the prior written permission of HM
Customs and Excise to elect and any other
correspondence required to evidence the
election and when it takes effect or (if no
permission is necessary) the notification of
the VAT Election to HM Customs and Excise
and an acknowledgment by HM Customs
65
and Excise of the notification
USE OUTSIDE BUSINESS HOURS
--------------------------
5.6.1 For the purposes of this Clause the expressions
"Special Services" (or "Special Service") and "the
Special Service Charge" shall have the meanings
ascribed to them in Part II of the Fifth Schedule
hereto
5.6.2 If the Tenant requires the supply of a Special
Service or Special Services outside Business Hours
the Tenant shall make prior arrangements with the
Landlord or its agents in relation to such supply and
subject to the Landlord being able to procure such
supply and subject also to the Tenant paying the
Special Service Charge at the times and in the manner
provided in Part II of the Fifth Schedule hereto the
Landlord shall make such supply as requested as may
be reasonably practicable but shall not be liable for
the failure to make such supply in the circumstances
described in Clauses 5.4.1 5.4.2 and 5.4.3 hereof
66
5.6.3 Where any Special Service or Special Services is or
are requested by the Tenant or other tenants with the
frequency at which the Landlord reasonably determines
it would be appropriate in the interests of good
estate management to include the same within the
Services the Landlord shall be entitled so to do and
thereupon the cost of provision thereof shall be
payable in the manner described in Part I of the
Fifth Schedule hereto
PROVISOS
--------
6. PROVIDED ALWAYS AND IT IS HEREBY AGREED AND DECLARED as
follows:-
RE-ENTRY
--------
6.1 If any of the contingencies specified in this Clause 6.1 occur
(and where the Tenant or any surety is more than one
individual or entity then the Landlord's rights under this
Clause 6.1 will arise if a contingency occurs in respect of
any of those individuals or entities) it will be lawful for
the Landlord at any time thereafter to reenter the Demised
Premises or any part of the Demised Premises in the name of
67
the whole and on the date of such re-entry this Underlease
will determine. In this Clause 6.1 the Insolvency Xxx 0000 is
called the 1986 Act". The contingencies referred to above are
as follows:-
6.1.1 any rent reserved remains unpaid for twenty one days
after becoming due and payable whether formally
demanded or not
6.1.2 the Tenant or any surety fails to comply with any of
their respective obligations under this Underlease or
any supplemental document
6.1.3 the Tenant or any surety (if a company) enters into
liquidation whether compulsory or voluntary or passes
a resolution for winding-up except where the
liquidation or winding-up resolution is for the
purpose of reconstruction or amalgamation while the
Tenant or such surety (as the case may be) remains
solvent under a scheme forthwith put into effect
6.1.4 the Tenant or any surety (if a company) has an
administration order made in respect of it or a
receiver or administra-
68
tive receiver is appointed
6.1.5 the Tenant or any surety (if an individual) has a
receiving order made against him or becomes bankrupt
or enters into a composition with his creditors
6.1.6 if distress is levied on any of the Tenants goods on
the Demised Premises
PROVIDED THAT neither the existence of the Landlord's rights
under this Clause 6.1 nor the consequences of exercise of such
rights are to affect any other right or remedy available to
the Landlord under this Underlease or otherwise
ABATEMENT OF RENT
-----------------
6.2 If the Building or any part thereof shall at any time during
the Term be destroyed or damaged by any of the Insured Risks
including damage by terrorist action whether or not the
Landlord has opted to insure against the same so as to make
the Demised Premises unfit for use then (save to the extent
that any policy or policies of insurance effected by the
Landlord and/or the Superior Landlord shall have been vitiated
or payment of the policy moneys refused in whole or any part
in consequence of
69
any act or default of the Tenant or any underlessee or their
respective servants agents licensees or invitees) the rent
hereby firstly reserved or a fair proportion thereof according
to the nature and extent of the damage sustained shall until
the earlier of (a) the expiration of five years from the date
of such destruction or damage or (b) the date when the Demised
Premises shall have been rebuilt or reinstated and made fit
for occupation and use be suspended and cease to be payable
and any dispute concerning this sub-clause shall be determined
by a single arbitrator in accordance with the Arbitration Acts
1950 and 1979
DISPUTES WITH ADJOINING TENANTS
-------------------------------
6.3 Disputes as between the Tenant and the tenants or occupiers of
any other part of the Building or any adjoining or
neighbouring property now or at any time during the Term
belonging to the Superior Landlord as to the nature and extent
of any easement right or privilege in favour of or affecting
the Demised Premises or the other part of the Building or the
adjoining or neighbouring property shall be decided in a
manner
70
to be approved by the Superior Landlord and in the case of
disputes with tenants or occupiers of other parts of the
Building by the Surveyor provided that in any event the cost
of settling any such dispute is not included in the rent
secondly reserved under this Underlease
SURVEYOR'S DECISION
-------------------
6.4 That any decision of the Surveyor on any matter on which he is
required or entitled to decide under the provisions of this
Underlease shall be final and binding on the parties hereto
and shall not be subject to challenge in any manner whatsoever
(except in the case of manifest error)
CONSENTS RIGHTS AND POWERS OF SUPERIOR LANDLORDS
------------------------------------------------
6.5.1 That in all cases where the consent or approval of
the Landlord is required under the terms of this
Underlease the giving of such consent or approval
shall be conditional upon the consent of the Superior
Landlord also being obtained so far as may be
required by the terms of the Superior Lease and all
powers of entry upon the Demised Premises during the
Term shall
71
also be exercisable by the Superior Landlord
6.5.2 All rights and powers (including without prejudice to
the generality of the foregoing the right to approve
or consent to any matter or otherwise) of the
Landlord hereunder shall where the terms of the
Superior Lease so require also be exercisable by the
Superior Landlord without any of the restrictions on
such rights imposed herein (unless such restrictions
shall also appear in the Superior Lease)
TENANT'S GOODS LEFT IN PREMISES
-------------------------------
6.6 If at such time as the Tenant has vacated the Demised Premises
after the determination of the Term either by effluxion of
time or otherwise any property shall remain in or on the
Demised Premises and shall not be removed within fourteen days
after written request by the Landlord to the Tenant so to do
then and in such case the Landlord may as the agent of the
owner of such property (and the Landlord is hereby appointed
by the Tenant to act in that behalf and the Tenant undertakes
to obtain ratification of
72
such appointment from the owner of such property) sell such
property and shall then hold the proceeds of sale after
deducting the costs and expenses of removal storage and sale
reasonably and properly incurred by it to the order of the
Tenant PROVIDED THAT the Tenant will indemnify the Landlord
against any liability incurred by it to any third party whose
property shall have been sold by the Landlord in the mistaken
belief (which shall be presumed unless the contrary be proved)
that such property was liable to be so dealt with pursuant to
this sub-clause
SERVICE OF NOTICES
------------------
6.7 Section 196 of the Law of Property Xxx 0000 as amended by the
Recorded Delivery Service Xxx 0000 shall apply to all notices
required to be served hereunder
NO RESTRICTION ON USE OF ADJOINING LAND
---------------------------------------
6.8 Nothing herein contained or implied shall impose or be deemed
to impose any restriction on the use of any land or buildings
not comprised in this Underlease or give the Tenant the
benefit of or the right to enforce or to have enforced or to
prevent the release or modifica-
73
tion of any covenant condition or stipulation entered into by
any lessee or tenant of the Landlord in respect of property
not comprised in this Underlease or shall operate to prevent
or restrict in any way the development of any land not
comprised in this Underlease PROVIDED THAT this condition
shall not entitle any person to take action prejudicial to the
Tenant's interest in the Demised Premises and the rights
granted to the Tenant under this Underlease or disentitle the
Tenant from exercising its remedies in relation to any such
action or threatened action
NO WARRANTY AS TO PERMITTED USE
-------------------------------
6.9 Nothing herein contained or implied shall be taken to be a
covenant warranty or representation by the Landlord that the
Demised Premises can lawfully be used for any particular
purpose
QUALIFICATION OF LANDLORD'S LIABILITY
-------------------------------------
6.10 The Landlord will not in any circumstances incur any liability
for damage to person or property or otherwise from any
accidental damage which may at any time be done to the Demised
Premises or any of the goods persons
74
or property of the Tenant other than any act neglect default
or misfeasance of the Landlord its servants employees agents
or independent contractors.
MUTUAL OPTION TO DETERMINE
--------------------------
6.11 If the Demised Premises or the means of access thereto over
the Common Parts shall be destroyed or damaged by any one of
the Insured Risks or by terrorist action whether or not the
Landlord has insured against such risk so as to render the
Demised Premises unfit for occupation and use and the Demised
Premises or the means of access over the Building are not
rebuilt or reinstated within two years and six months after
the date ("the Damage Date") following the happening of such
destruction or damage so as to render the Demised Premises fit
for occupation and use then at any time after the expiry of
two years and six months from the Damage Date either the
Landlord or the Tenant may determine this Underlease by giving
not less than six months notice ("the Termination Notice") to
the other and upon the expiry of such notice this Underlease
shall then deter-
75
mine and the Tenant shall provide full vacant possession of
the Demised Premises to the Landlord but the Underlease shall
not determine in any of the following circumstances:-
6.11.1 if the Termination Notice was served by the Tenant
and the policy or policies of insurance of the
Demised Premises shall have been vitiated in whole or
in part as a consequence of any act neglect default
or omission of the Tenant any undertenant or other
occupier of the Premises and its or their respective
servants or agents; or
6.11.2 the Demised Premises and any other parts of the
Building which makes the Demised Premises capable of
beneficial use and occupation are rebuilt or
reinstated as mentioned in Clause 5.2 on or before
three years from the Damage Date
LANDLORD'S OPTION TO DETERMINE
------------------------------
6.12 If the Demised Premises or a substantial part of them or a
substantial part of the remainder of the Building shall be
destroyed or damaged by terrorist action and if the Landlord
has not insured against such risk then the Landlord
76
may at any time within three months of the date ("the Damage
Date") following the happening of such destruction or damage
determine this Underlease by giving not less than six months
notice ("the Termination Notice") to the Tenant and upon the
expiry of such notice:-
6.12.1 this Underlease shall then determine but without
prejudice to any antecedent breaches
6.12.2 the Tenant shall provide full vacant possession of
the Demised Premises to the Landlord
6.13 Tenants Option to Determine
6.13.1 Subject to the Pre Conditions (as hereinafter
defined) being satisfied if the Tenant shall desire
to determine the Term on the Break Date (time being
of the essence for such date) and shall give to the
Landlord notice to that effect ("the Break Notice")
not later than twelve months and not earlier than
eighteen months before the Break Date (time to be of
the essence for such notice) then on the Break Date
the Term shall thereupon cease and deter-
77
mine but without prejudice to the remedies of either
party against the other in respect of any antecedent
claim or breach of covenant
6.13.2 For the purpose of sub-clause 6.13.1 above the Pre
Conditions are that on the Break Date:
6.13.2.1 this Underlease remains vested in the Tenant
named herein or a Group Company ("Group
Company" meaning a company that is a member
of the same group as the Tenant within the
meaning of Section 42 of the Landlord and
Xxxxxx Xxx 0000 in the form of that Section
as it exists at the date of this Underlease
and so remains a member during the period in
which the Underlease is vested in that
company)
6.13.2.2 the Tenant provides vacant possession of the
whole of the Demised Premises
6.13.2.3 the Tenant has paid the rent first reserved
and the "on account" service charge payable
under this Underlease
78
6.13.2.4 the Tenant pays the Due Sum (if any)
referred to in Clause 6.13.3 not later than
four weeks before the Break Date PROVIDED
THAT if the Assessor (as hereinafter
defined) shall fail to make an assessment
("the Assessment") of the Due Sum (as
hereinafter defined) and notify the Tenant
of the Due Sum six weeks before the Break
Date the Tenant shall pay to the Landlord
the Due Sum within 14 days of being notified
of the Assessment ("the Due Date") PROVIDED
FURTHER that if the Due Date is later than
the Break Date this condition shall not be
treated as a precondition but shall be a
condition subsequent
6.13.3.1 The provisions of this Clause 6.13.3 shall
only apply in the event of the Tenant
serving a Break Notice
6.13.3.2 In the event of any dispute as to any sums
payable under this Underlease (whether in
relation to dilapidations
79
service charges or otherwise) the Due Sum
(as hereinafter defined) shall be the
subject of a deposit of cash with (or the
provision of an unconditional guarantee from
a London Clearing Bank in favour of) the
Landlord's solicitors
6.13.3.3 The Due Sum shall be the amount needed to
remedy any breaches of covenant and/or make
good any deficiency in payments to the
Landlord due under the Underlease and the
Due Sum shall be agreed between the Landlord
and Tenant and if not so agreed within six
months from the service of the Break Notice
it shall be assessed by an independent
appropriately qualified surveyor ("the
Assessor") (acting as expert) appointed by
the Landlord who is a representative of a
reputable firm or company experienced in
disputes of this nature who in fixing the
figure shall acknowledge a duty of care to
the Landlord and to
80
the Tenant to endeavour to meet a fair
result between their respective positions
and who shall use his best endeavours to
provide his assessment within 3 months of
his appointment
6.13.3.4 The amount of the Due Sum shall not bind the
Landlord or the Tenant in relation to any
claim for any breach made on or after the
termination of the Underlease but shall
merely constitute security for the Landlord
in relation to all or part of any eventual
claim. The amount shall not be treated as
evidence of the justifiable figure for any
such claim
6.13.3.5 Upon the conclusion of any claim made at or
after the expiry of the Underlease (and it
is acknowledged that the Landlord has the
right to make claims in respect of any
breach of the Underlease and the Tenant has
the right to make a claim for the repayment
of the whole or part of the Due Sum or the
release of any guarantee)
81
the amount due to the Landlord shall be
released to the Landlord (together with
interest accrued on such sum) and the
balance (together with interest accrued
thereon) shall be released to the Tenant
6.13.3.6 If either party considers it is being
prejudiced by any delay in the final
settlement of any claim under Clause
6.13.3.5 above it shall be entitled to call
upon the Assessor to make an interim
assessment of such sum or sums (payable to
the Landlord and/or to be released to the
Tenant) as should in any event be payable
(notwithstanding the dispute as to the
balance) and payments or releases based on
such interim assessment shall be made
forthwith
VAT
---
6.14 Notwithstanding anything in this Underlease or Section 42 of
the VAT Act the Tenant shall not be liable to pay any amount
in respect of VAT on a VAT Supply made before 24th March 1998
82
where such VAT Supply would have been exempt save for a VAT
Election
6.15 RELEASE OF TENANT LIABILITY ON ASSIGNMENT
6.15.1 In this Clause 6.15:-
6.15.1.1 "Value" means the value to a Landlord of the
Building of which the Demised Premises forms
part which is to be assessed in accordance
with the objective view of a reasonable
Landlord
6.15.1.2 "Package" means the aggregate of covenants
proviso's obligations and other terms
providing benefits (whether actual or
contingent) to the Landlord contained in
this Underlease and in any document
supplemental hereto or entered into for the
purposes of providing any assurance or
security for the Landlord that the Tenant
will comply with its obligations (including
any personal or corporate or bank guarantee
rent deposit or other bond security or
undertaking)
83
6.15.1.3 "Tenant Package" means the Package provided
to the Landlord at the date of this
Underlease or (if of greater value) the
Package held by the Landlord as at the date
it receives an application from the Tenant
for licence to assign to the Special
Assignee
6.15.1.4 "Special Assignee" means the assignee to
whom the Tenant proposes to assign this
Underlease and in connection with such
assignment obtain a release of liability
pursuant to this Clause
6.15.1.5 "New Package" means the Package provided by
the Special Assignee
6.15.1.6 "Outgoing Tenant" means the person who is
the Tenant under this Underlease immediately
prior to any assignment to a Special
Assignee
6.15.2 In the event of the Outgoing Tenant assigning this
Underlease (in accordance with the provisions for
assignment herein contained) to a Special Assignee in
circumstances where the New Package is
84
equivalent to or greater in Value than the Tenant
Package then at the request and cost of the Outgoing
Tenant the Landlord will execute a release of all the
Outgoing Tenant's obligations and liabilities under
the terms of this Underlease (and any other
obligations and liabilities contained in the Tenant
Package) but without prejudice to the preservation of
any claim on any outstanding matter
IN WITNESS whereof the parties hereto have caused their respective Common Seals
to be hereunto affixed the day and year first above written
THE FIRST SCHEDULE above referred to
------------------------------------
(The Demised Premises)
----------------------
ALL THOSE parts of the second floor of Five Acre Square 126/137 (inclusive)
Houndsditch EC3 in the City of London which are for the purpose of
identification only shown edged red on Plan C including:-
1. The raised floors and the screened surfaces of the floor slabs of the
premises hereby demised and the air space between them
85
2. The internal plaster surfaces and plasterwork of the walls bounding the
premises hereby demised (but not the remaining thickness or external
surfaces of such walls) the internal architraves of the doors between
the premises hereby demised and the Common Parts and the skirting
within the premises hereby demised but excluding the doors between the
premises hereby demised and the Common Parts the external architraves
door frames and door furniture thereof all window frames and furniture
and the glass fitted therein
3. The surfaces of the ceilings of the premises hereby demised or any
suspended ceiling installation including all fitments therein and the
supporting framework thereof (but for the avoidance of doubt not the
air conditioning and sprinkler installations in and above the suspended
ceiling installation)
4. The whole of all non-load bearing walls or partitions (if any) wholly
within the premises hereby demised
5. The external plastered coverings of the pillars within the premises
hereby demised but not the remaining thickness or internal structure of
such pillars
86
BUT EXCLUDING the areas coloured blue on Plan C
THE SECOND SCHEDULE above referred to
-------------------------------------
PART I
------
Easements granted
-----------------
1. Full right and liberty for the Tenant and all persons authorised by it
(in common with all other persons entitled to the like right) at all
times and for all purposes in connection with the permitted user of the
Demised Premises to go pass and xxxxxx on foot over and through and
along the entrances to the Building and the foyers staircases landings
the six main lifts and the goods lift in the Building only for such
purposes and for access to any parking spaces occupied under separate
licence and with or without vehicles over the Service Area (so far only
as necessary for deliveries to and collection from the Demised
Premises)
2. The uninterrupted passage of the Utilities which serve the Demised
Premises from and to the Demised Premises through the Conduits which do
not form part of the Demised Premises for the time being running in
over under or through the Building or any part thereof
87
3. The right for the Tenant with servants workmen and others at
all reasonable times upon giving three days previous notice
in writing to the occupier thereof (or in the case of
emergency without notice) to enter into and upon other parts
of the Building where there is no reasonably practicable
alternative for the purpose of repairing maintaining altering
cleansing examining or testing the Demised Premises and in
any case causing as little damage and disturbance as possible
and making good any damage caused
4. The right to use all toilet facilities in the Common Parts on
the second floor of the Building PROVIDED THAT the Landlord
may from time to time designate different toilet facilities
or suspend the use thereof in order to carry out any
necessary maintenance or repair to or replacement of the same
or of any Plant therein or to carry out or provide the
Services therein so long as toilet facilities at least in
respect of male and female toilets are equally extensive as
those referred to above and adequate to permit the continued
use and occupation of the Demised Premises remain available
at all times
88
5. The right to escape in the case of emergency over the routes designated
by the Landlord from time to time
6. The right to affix to the roof of the Building in a position first
approved by the Landlord (such approval not to be unreasonably
withheld) and use a satellite dish or similar apparatus (not exceeding
two in number) suitable for the receipt of programmes broadcast by
satellite of a design and specification first approved by the Landlord
(such approval not to be unreasonably withheld) and the right to
install in a position and in manner first approved by the Landlord
(such approval not to be unreasonably withheld) in or on the Building
(but excluding any Lettable Space and the Common Parts) and use any
necessary cables linking the satellite dish or similar equipment to the
Demised Premises
PROVIDED THAT:-
6.1 the Tenant shall carry out such works causing as little damage
disturbance inconvenience and annoyance to the Landlord and the other
occupiers of the Building and forthwith making good all damage caused
to the reasonable satisfaction of the Landlord
89
6.2 the Tenant will remove any equipment installed (including the
cabling) on the first to occur of:-
6.2.1 the end or sooner determination of the Term and
6.2.2 the equipment ceasing to be required by the Tenant
the Tenant in any event forthwith making good any
damage caused by such removal and reinstatement to
the reasonable satisfaction of the Landlord
PART II
-------
(Reservations)
--------------
PASSAGE OF UTILITIES
--------------------
1. The right in common with the Tenant and those deriving title through or
under it to the uninterrupted passage of the Utilities which serve the
remainder of the Building and/or any of the adjoining or neighbouring
property of the Landlord and/or the Superior Landlord through the Conduits
for the time being running in over under or through the Demised Premises
ENTRY TO INSPECT AND FOR WORKS
------------------------------
90
2. Full right and liberty for the Landlord and its surveyors agents and
workmen and others authorised by the Landlord at a time reasonably
agreed between the Landlord and the Tenant and from time to time (upon
48 hours prior notice save in case of emergency) to enter into and upon
the Demised Premises and all parts thereof for the purpose of:-
2.1 repairing maintaining altering cleansing examining and/or
testing the Demised Premises and all parts thereof and the
Conduits serving the same and/or any other part of the
Building and/or any adjoining or neighbouring property of the
Landlord and/or the Superior Landlord where there is no
reasonably practicable alternative and to make all connections
and disconnections which may be necessary in relation thereto
and for the purpose of carrying out any work or doing anything
whatsoever for which the Tenant is liable hereunder and in
respect of which the Tenant shall for the time being be in
default
2.2 making connections with any or all of the Conduits existing
from time to time laying new Conduits and altering repairing
renewing
91
cleansing emptying and inspecting the Conduits and/or the
Plant as necessary in connection with the accommodation of any
other part of the Building
2.3 repairing renewing altering and/or maintaining any other part
of the Building where there is no reasonably practicable
alternative
2.4 carrying out any other work which the Landlord must or may
carry out under the provisions of Clause 5.4 hereof
2.5 any other necessary or reasonable purposes whatsoever where
there is no reasonably practicable alternative
PROVIDE THAT neither the Landlord nor the Superior Landlord nor any
other person exercising any of the above rights shall be liable for any
disturbance inconvenience or loss of business resulting from any such
entry or the making of such repairs or the performance of any such work
but PROVIDED FURTHER THAT in the exercise of the above rights the
Landlord or any other person so entering shall cause as little damage
and disturbance as reasonably possible and shall make good any damage
caused to the Demised Premises resulting therefrom to the reasonable
92
satisfaction of the Tenant
BUILD ON ADJACENT LAND
----------------------
3.1 The right of the Superior Landlord in accordance with the
terms of the Superior Lease to build or rebuild or alter or
permit the building rebuilding or alteration of any adjacent
or neighbouring land or building of the Superior Landlord in
any manner whatsoever and to let the same for any purpose or
otherwise deal therewith notwithstanding the light or air to
the Demised Premises is in any such case thereby diminished or
any other liberty easement right or advantage belonging to the
Tenant is thereby diminished or prejudicially affected
3.2 The right to build rebuild or alter or permit the building
rebuilding or alteration of the remainder of the Building by
the Landlord and to let the same for any purpose or otherwise
deal therewith provided that such works do not materially
adversely affect the Tenant's use and occupation of the
Demised Premises for the purposes permitted by this Underlease
SUPPORT AND SHELTER
-------------------
93
4. The right to subjacent and lateral support and to shelter and
protection for other parts of the Building from the Demised
Premises
PART III
--------
(Matters to which the Demised Premises is subject)
--------------------------------------------------
COVENANTS IN SUPERIOR LEASE
---------------------------
1. The covenants on the lessee's part contained in the Superior Lease
(except only the covenant for payment of the rents reserved thereby)
2. All matters contained or referred to in the Charges Register as at 9th
March 1993 of the Landlord's title number NGL681489 (other than entries
numbered 2, 3, 4, 6 and 7)
THE THIRD SCHEDULE above referred to
------------------------------------
(Rent Review)
-------------
1. In this Schedule the following expressions shall have the meanings
assigned to them hereunder:-
"the rent review dates" shall mean the fifth tenth fifteenth and
twentieth anniversary of the date from which the Term is calculated
"the Open Market Rent" shall mean the yearly rent for which the
Demised Premises could reasonably be expected to be let by a willing
94
lessor to a willing lessee without fine or premium with vacant
possession on the relevant rent review date in the open market for a
term of lO years or a term equal to the residue then unexpired of
the Term (whichever be the longer) but in either event commencing on
the relevant rent review date and otherwise upon the terms and
conditions (save as to the actual amount of rent payable and any
rent free period allowed to the Tenant but including the provisions
for review contained in this Underlease) on the basis of the user
permitted hereunder and on the assumption if not a fact that:-
(a) all covenants hereunder have been complied with
(b) that the Demised Premises are fitted out and ready for
immediate beneficial occupation and use and without limitation
that the Demised Premises have been finished to the
specification described in the Technical Handbook (a copy
whereof is annexed hereto) together with the provision of good
quality carpeting and adequate floor outlet boxes all at the
Landlord's expense
95
and that the said floor outlet boxes are live
(c) that the hypothetical tenant has had immediately prior to the
relevant review date the benefit of an adequate rent free
and/or reduced rent period for the purposes of fitting out
(d) that the Demised Premises comply with all statutory byelaws
and planning requirements
there being disregarded:-
(i) any effect on rent of the fact that the Tenant or any
underlessee or lawful occupier or any predecessor in
title to the same has been in occupation of the
Demised Premises
(ii) any goodwill attached to the Demised Premises by
reason of the business carried on thereat by the
Tenant or any underlessee or lawful occupier or any
predecessor in title to the same
(iii) any effect on rent of any improvement made during the
Term or any period of prior occupation by the Tenant
and/or
96
pursuant to any agreement for Underlease by the Tenant or any
underlessee or lawful occupier or any predecessor in title to
the same (where a written application for the consent of the
Landlord if required hereunder has been made) so far as made
at its own expense and to the extent that there is no
liability on the Landlord to pay or contribute to the cost of
such improvement but excluding any improvement undertaken in
performance of an obligation to the Landlord other than:-
(a) the obligation imposed under Clause 4.18 or
(b) under any licence for alterations granted by the Landlord to
the Tenant under this Underlease
(iv) any diminution in rental value attributable to any
work carried out by any Tenant or undertenant or any
other permitted occupier during the
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Term
(v) Clause 2(iii) of this Third Schedule
2. As from each rent review date the yearly rent first hereby reserved
shall be whichever is the higher of:-
(i) the yearly rent first hereby reserved and payable immediately
before the relevant rent review date and
(ii) the Open Market Rent; and
(iii) in the case of the rent review due on 25th March 1998 the sum
of ONE MILLION AND SEVENTY FOUR THOUSAND SIX HUNDRED AND SIXTY
POUNDS ((pound)1,074,660.00)
3. If the Landlord and the Tenant shall not have agreed the Open Market
Rent at the relevant rent review date the Open Market Rent shall
(unless subsequently agreed by the Landlord and the Tenant) be
determined by a surveyor qualified for not less than ten years and
experienced and conversant in the office letting market of the City of
London and its environs (hereinafter called "the Appointed Surveyor")
to be agreed upon in writing by the Landlord and the Tenant (in which
event the capacity in which the Appointed Surveyor shall act shall be
agreed between
98
the Landlord and the Tenant) and in default of agreement to make such
appointment the Appointed Surveyor shall be nominated by the President
for the time being of the Royal Institution of Chartered Surveyors upon
the application of the Landlord or the Tenant which may be made at any
time (in which event the determination of the Open Market Rent by the
Appointed Surveyor shall be made by him as an arbitrator pursuant to
the provisions of the Arbitration Acts 1950 and 1979 and not as an
expert)
4. Nothing contained in this Schedule shall prevent the Landlord and the
Tenant agreeing the Open Market Rent at any time after the nomination
or appointment of the Appointed Surveyor but prior to any determination
made by him and in such event such agreement shall be binding upon the
parties hereto
5. Upon the agreement or determination of the reviewed rent a memorandum
thereof shall forthwith be annexed to this Underlease and the
Counterpart hereof in such form as the Landlord's Solicitors shall
reasonably determine
6. In the event of the Landlord at the relevant rent review date being
prevented or prohibited by reason of any legislation government order
or decree (in
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this paragraph collectively referred to as "legislation") from
exercising its rights under this Schedule and/or obtaining the whole or
any part or parts of any increase in the rent ("increase" in this
context meaning such increase as disregarding the provisions of any
such legislation would otherwise have been obtainable at the relevant
rent review date by reason of the provisions of this Schedule) then:-
(i) In the event of the legislation permitting the whole of such
increase in rent to take effect at a date subsequent to the
relevant rent review date the said increase shall take effect
at the earliest date permitted by legislation or
(ii) in the event of legislation permitting only limited increases
in the rent on dates subsequent to the relevant rent review
date the said increases shall take effect on the earliest
dates on which they are so permitted to take effect and until
such time or times as the Landlord shall be entitled to take
the benefit of whole of the increase in rent which but for the
legislation it would have been able to ob-
100
tain at the relevant rent review date
7. If the rent first hereby reserved and payable from the relevant rent
review date shall not have been ascertained by that date then the
Tenant shall from such date pay at the times and in manner aforesaid a
yearly rent on account thereof equal to the rent first hereby reserved
and payable immediately before the relevant rent review date and within
fourteen days after the agreement or determination of the rent to be
payable in accordance with paragraphs 2 and 3 of this Schedule the
Tenant will pay to the Landlord an amount equal to the excess (if any)
of the rent so agreed or determined over the rent paid on account for
the period from the relevant rent review date together with interest
thereon at base rate or the equivalent for the time being in force of
National Westminster Bank plc or such substitute rate as is provided
for in Clause 1.11 from the date or dates on which the same or each
instalment thereof would otherwise have been payable until payment
THE FOURTH SCHEDULE above referred to
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101
Covenant by Surety to this Underlease
-------------------------------------
The Surety HEREBY JOINTLY AND SEVERALLY COVENANT with the Landlord that
1. The Tenant will at all times during the continuance of the Term (which
shall be deemed to include for all the purposes of this Schedule any
new underlease of the Demised Premises granted to the Tenant by order
of the Court or by negotiation pursuant to an application by the Tenant
to the Court) pay the rents for the time being reserved and perform and
observe the covenants on the part of the Tenant to be observed and
performed and that if the Tenant shall make default in payment of the
said rents or any part thereof at the times fixed for payment thereof
or in observing and performing the said covenants or any of them and
provided that notice of any sums which are first second thirdly
fourthly fifthly and sixthly reserved by the Underlease is served on
the Surety within 100 days of the due date then and in every such case
the Surety will pay the rents or observe and perform any covenant in
respect whereof the Tenant shall be in default as aforesaid PROVIDED
that notwithstanding the forbearance by the Landlord to enforce against
the Tenant the payment
102
of the said rents or the observance or performance of the Tenant's
covenants or the giving of time by the Landlord to the Tenant in
relation thereto the Surety any assignment of this Underlease or any
Variation to the terms of this Underlease shall not thereby be
discharged from liability under the foregoing covenant and
2. If the Tenant shall enter into liquidation whether compulsory or
voluntary not being merely a voluntary liquidation of a solvent company
for the purposes of amalgamation or reconstruction under a scheme
forthwith put into effect or shall become bankrupt and the liquidator
or trustee in bankruptcy of the Tenant shall disclaim these presents or
if the Landlord shall for any reason enforce its right of re-entry
under Clause 6.1 and if the Landlord shall within six months after such
disclaimer or re-entry by notice in writing require the Surety or
either/any of them to accept an Underlease of the Demised Premises for
a term commensurate with the interest vested in the Tenant immediately
before such disclaimer or re-entry at the same rents and subject to the
like covenants and conditions as are payable under and applicable to
the tenancy immediately before
103
the date of such disclaimer or re-entry (the said new Underlease and
the rights and liabilities thereunder to take effect as from the date
of the said disclaimer or re-entry and subject to and with the benefit
of these presents if they still subsist) then and in every such case
the Surety or such of them as the Landlord may require shall accept
such Underlease accordingly and execute a counterpart thereof and pay
the Landlord's costs of such new Underlease and if the Landlord shall
not require the Surety or either/any of them to accept such Underlease
the Surety shall nevertheless pay to the Landlord upon demand a sum
equal to the rents which would have been payable but for such
disclaimer or re-entry from the date of such disclaimer or re-entry
until the expiration of six months therefrom or until the Demised
Premises shall have been re-let by the Landlord whichever shall first
occur
THE FIFTH SCHEDULE above referred to
------------------------------------
PART I
------
1. For the purpose of Part I of this Schedule:-
(i) An "Accounting Period" shall mean a period commencing on the
First day of January
104
and ending on the Thirty first day of December in each year or
such other period as the Landlord may in its absolute
discretion from time to time determine
(ii) "the Services" shall mean the Basic Services (hereinafter
defined) and such of the Optional Services (hereinafter
defined) as the Landlord (subject to Clause 5.4.4 of this
Underlease) provides and "Service" shall be construed
accordingly
(iii) "the Basic Services" shall mean the services to be provided to
a standard appropriate to a high quality office building in
the City of London and which are namely:-
(a) keeping the Building (except the Lettable Space but
including the Plant) in good and substantial repair
(b) procuring the regular inspection servicing and
maintenance by specialist contractors of the Plant
and the modernisation upgrading or replacement of the
same whenever reasonably necessary
(c) keeping the exterior and interior of the Building
(except the Lettable Space) clean
105
and decorated whenever reasonably necessary
(d) complying with all Acts of Parliament in relation to
the Building (except those in relation to the Demised
Premises which are the obligation of the Tenant
hereunder and the like in relation to other Lettable
Space) and the Plant
(e) procuring the supply of electricity to the Demised
Premises
(f) providing adequate heating cooling and ventilation to
the Demised Premises during the Business Hours
(g) keeping the Service Area adequately lit as necessary
both within and outside the Business Hours
(h) keeping the Common Parts adequately appointed in
keeping with the standard appropriate to a high
quality office building in the City of London
(i) providing hot and cold water towels soap and sanitary
facilities to the toilet and lavatory accommodation
in the Common Parts designated for use by the Tenant
106
(j) providing a satisfactory lift service appropriate to
a high quality office building in the City of London
(k) providing one or more commissionaires or
receptionists during the Business Hours
(l) providing twenty four hour security personnel to
control ingress and egress to the Building as
appropriate for the time of day or night
(m) providing other necessary staff or external
contractors for the proper management and day to day
running of the Building and the Plant
(n) providing necessary communication facilities for the
aforesaid staff or external contractors together with
office and workroom and storage accommodation
furnishings office equipment and stationary tools
appliances plant and equipment
(o) providing uniforms and protective clothing for the
aforesaid staff
(p) providing containers for refuse and the collection
thereof by the City of London Corporation or other
private contractor
107
(q) providing signage within the Common Parts and outside
the Building
(iv) "the Optional Services" shall mean:-
(a) landscaping and providing and maintaining all plants
and shrubs whether within the Common Parts or outside
the Building and keeping the same properly maintained
(b) providing decorative lighting whether within the
Common Parts or outside the Building
(c) providing flags for the flag pole over the main
entrance in Houndsditch
(d) providing close circuit television or other
mechanical or electronic security systems whether in
the Common Parts or outside the Building
(e) valuing the Demised Premises not more frequently than
once in each year for insurance purposes
(f) providing any further services as are reasonably
required by the Landlord in the interests of good
estate management
(v) The "Annual Cost" shall mean the expenditure incurred by the
Landlord in any Accounting
108
Period in carrying out or procuring the carrying out of the
Services together with but without prejudice to the generality
of the foregoing:-
(a) a reasonable charge by the Landlord (not exceeding
8.25% of the Annual Cost disregarding this Clause
(v)(a)) in respect of the cost of management or the
reasonable cost of employing Managing Agents;
(b) the proper costs of any Accountant or Surveyor
employed to determine or audit the Annual Cost or the
interim payments or the Service Charge (as
hereinafter defined); and
(c) the cost of maintaining the necessary bank account or
accounts and the cost of money borrowed in connection
with the provision of the Services; and
(d) the cost of the Landlord's contribution to the repair
and maintenance of party structures and
(e) the cost to the Landlord of sewage disposal and
refuse collection whether via the environmental
charge or otherwise
109
BUT EXCLUDING:-
(f) any charge made in respect of the cost of collection
of rents
(g) any charges referrable to any unlet Lettable Space
(vi) The "Service Charge" shall be a fair and reasonable proportion
attributable to the Demised Premises of the Annual Cost to be
determined (and variable from time to time and in varying
proportions (which in appropriate cases may be the whole) in
respect of different parts of the Services) by the Surveyor or
Accountant (whose decision shall be final and binding on the
parties hereto save in the case of manifest error) by
reference to floor area or such other basis as may
appropriately be adopted on the basis that the whole of the
Annual Cost is intended (once all the Lettable Space is fully
let) to be recoverable from the tenants and/or the occupiers
of the Building
2. The sum payable on account of the Service Charge for the Accounting
period current at the date hereof shall be calculated pro rata on a
daily basis at the rate of TWO HUNDRED AND THIRTY ONE THOUSAND FOUR
110
HUNDRED AND TEN POUNDS AND TWELVE XXXXX ((pound)231,410.12) per annum
and the first payment shall be made on the execution hereof and shall
be in respect of the period from the date hereof to the day before the
quarter day immediately following the execution hereof (both dates
inclusive)
3. The sum payable on account of the Service Charge for all subsequent
Accounting Periods shall be an amount equal to the estimated Service
Charge for the relevant Accounting Period as specified in the
Certificate to be served by the Surveyor upon the Tenant as soon as
practicable containing an estimate of the Annual Cost and the Service
Charge for the relevant Accounting Period
4. The said sums payable on account shall be paid to the Landlord by equal
instalments in advance on the usual quarter days
5. In any Accounting Period less or more than a year the difference
between the Service Charge and the payments on account as set out in
paragraphs 3 and 4 of Part I of this Schedule shall be calculated on a
pro rata daily basis
6. As soon as practicable after the end of each Accounting Period the
Surveyor shall:-
111
(i) compute the Annual Cost for such Accounting Period
(ii) serve upon the Tenant a Certificate of the Annual Cost and the
Service Charge for the immediately preceding Accounting Period
and the aforesaid Certificate of the Landlord's accountant or the Surveyor
shall be conclusive and binding on the parties hereto in relation to all
matters of fact therein set out (save in the case of manifest error)
7. Within twenty eight days of the service of such Certificate the Tenant
shall pay to the Landlord or the Landlord shall allow to the Tenant
against the sums payable on account of the Service Charge as the case may
be any difference between the Service Charge for the immediately preceding
Accounting Period and the total of the interim sums paid on account of the
Service Charge for the preceding Accounting Period
PART II
-------
For the purpose of Part II of this Schedule:-
(i) "the Special Accounting Period" shall mean a period commencing
on the 1st day of January and ending on the 31st day of
De-
112
cember in each year or such other period as the Landlord may
in its absolute discretion from time to time reasonably
determine having particular regard to the frequency of and the
period in which the Special Service or Special Services (as
hereinafter defined) are supplied
(ii) "the Special Services" shall mean the provision at the request
of the Tenant of any of the Basic Services and/or Optional
Services (normally only provided during the Business Hours)
outside the Business Hours "Special Service" shall be
construed accordingly
(iii) "the Special Annual Cost" shall mean the expenditure incurred
by the Landlord in any Special Accounting Period in carrying
out or procuring the carrying out of the Special Services
together with but without prejudice to the generality of the
foregoing:-
(a) a reasonable charge by the Landlord (not to exceed
8.25% of the Special Annual Cost disregarding this
Clause
113
(iii)(a)) in respect of the cost of management or the cost of
employing management agents in relation to the Special
Services
(b) the proper cost of any accountant or surveyor
employed to determine or audit the Special Annual
Cost or the interim payments or the Special Service
Charge (as hereinafter defined) and
(c) the cost of maintaining the necessary bank account or
accounts and the cost of money borrowed in connection
with the provision of the Special Services
(iv) "the Special Service Charge" shall be a fair and reasonable
proportion attributable to the Demised Premises of the Special
Annual Cost to be determined (and variable from time to time
and in varying proportions (which in appropriate cases may be
the whole) in respect of different parts of the Special
Services) by the Surveyor or Landlord's accountant (whose
decision shall be final and binding on the
114
parties hereto save in the case of manifest error ) by
reference to the floor area and the degree of use of the
Special Services or such other basis as may appropriately and
reasonably be adopted on the basis that the whole of the
Annual Cost is intended (once all the Lettable Space is fully
let) to be recoverable from the Tenants and/or the occupiers
of the Building
and the aforesaid Certificate of the Landlord's accountant or the
Surveyor shall be conclusive and binding on the parties hereto in
relation to all matters of fact set out therein (save in the case of
manifest error)
6. Within twenty eight days of the service of such Certificate the Tenant
shall pay to the Landlord or the Landlord shall allow to the Tenant
against the sums payable on account of the Special Service Charge as
the case may be any difference between the Special Service Charge for
the immediately preceding Special Accounting Period and the total of
the interim sums paid on account of the Special Service Charge for the
preceding Special Accounting Period
115
THE COMMON SEAL of CHESTERMOUNT )
PROPERTIES LIMITED was hereunto )
affixed to this Deed in the )
presence of:- )
Director
Director/Secretary
116
