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Exhibit 10.13
[LOGO]
DATED 28TH MARCH 2000
LANDLORD: CABOT CARBON LIMITED
and
TENANT: CABOT MICROELECTRONICS
CORPORATION
SUB-SUB-UNDERLEASE
OF
LAND AT THE SOUTH SIDE OF CARDIFF ROAD, BARRY
Term: 10 years beginning on 28th March 2000
Initial Rent: pound sterling 37,788 per annum
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CONTENTS
PAGE
1. DEFINITIONS........................................................ 2
2. INTERPRETATION..................................................... 4
3. DEMISE............................................................. 5
4. THE TENANT'S COVENANTS............................................. 5
4.1 Rent............................................................ 5
4.2 Outgoings and Utilities......................................... 5
4.3 Repair.......................................................... 6
4.4 Permitted Use................................................... 6
4.5 Restrictions on Use............................................. 6
4.6 Alienation...................................................... 7
4.7 Alterations..................................................... 7
4.8 Notices......................................................... 7
4.9 Statutes........................................................ 8
4.10 Planning..................................................... 8
4.11 Landlord's Costs............................................. 8
4.12 Permit Landlord to Enter..................................... 9
4.13 To Insure.................................................... 9
4.14 Defective Premises Act 1972.................................. 10
4.15 Covenants Affecting the Reversion............................ 10
4.16 Common facilities............................................ 10
4.17 Protection of the Demised Premises and adjoining premises.... 10
4.18 Information.................................................. 11
4.19 Protection of Easements...................................... 11
4.20 Indemnities.................................................. 11
4.21 Xxxxxxxxx and Sale Boards.................................... 12
4.22 Not to vitiate insurance..................................... 12
4.23 Yield up..................................................... 13
4.24 Superior Lease............................................... 13
4.25 VAT.......................................................... 13
4.26 Plant Air Supply ............................................ 13
5. LANDLORD'S COVENANTS............................................... 14
5.1 Quiet Enjoyment................................................. 14
5.2 Insurance....................................................... 14
5.3 To Reinstate.................................................... 15
5.4 Headlease....................................................... 15
5.5 Management of the Property...................................... 13
5.6 Information..................................................... 14
6. PROVISOS........................................................... 16
6.1 Re-Entry........................................................ 16
6.2 Service of Notices.............................................. 17
6.3 Compensation.................................................... 18
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6.4 Use............................................................. 18
6.5 Release of the Landlord......................................... 15
6.6 Proviso for Abatement of Rent................................... 18
6.7 Neighbouring Property........................................... 19
6.8 Removal of Tenant's property.................................... 19
6.9 Disputes........................................................ 19
6.10 Easements.................................................... 20
6.11 Landlord's Option to Determine............................... 20
6.12 Expansion Right.............................................. 20
6.13 Jurisdiction................................................. 21
6.14 Xxxxxxxx and Tenant Act 1954................................. 22
FIRST SCHEDULE........................................................... 23
(Particulars of the Demised Premises).................................... 23
SECOND SCHEDULE.......................................................... 25
(Matters to which the demise is subject)................................. 25
THIRD SCHEDULE........................................................... 26
(Rent Review)............................................................ 26
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THIS SUB-SUB-UNDERLEASE is made the 28th day of March 2000
BETWEEN:
(1) CABOT CARBON LIMITED a company registered in England under No. 462857
and whose registered office is at Stanlow Xxxxxxxxx Xxxx Xxxxxxxx X00
0XX (the "LANDLORD");
(2) CABOT MICROELECTRONICS CORPORATION whose address is Cab O Sil Site,
Sully Moors Road, Sully, South Glamorgan, CF64 5RP (the " TENANT ").
WITNESSES that:
1. DEFINITIONS
1.1 In this Lease:
"THE BUILDING" means the building upon the Demised Premises housing the
dispersion plant and equipment;
"BUSINESS DAY" means a day (excluding Saturday and Sunday) on which
banks generally are open for business in London;
"CONDUITS" means all conducting media of whatever nature (including
without limitation sewers drains pipes galleys gutters ducts flues
watercourses channels subways wires and cables) including any tanks
meters sprinklers fixings louvres cowls and any other ancillary
apparatus attached thereto;
"THE CONTRACTUAL TERM" has the meaning given to it in Clause 3;
"THE DEMISED PREMISES" means the premises described in Part I of the
First Schedule;
"GROUP" is to be construed so that two bodies corporate shall be taken
to be members of a Group if and only if one is a subsidiary of the
other or both are subsidiaries of a third body corporate. A Company is
a subsidiary of another Company its "Holding Company" if the Holding
Company:
(a) holds the majority of the voting rights in the subsidiary or;
(b) is a member of the subsidiary and has the right to appoint or
remove a majority of its board of directors or;
(c) is a member of the subsidiary and controls alone pursuant to
an agreement with other shareholders or members a majority of
the voting rights in it or
(d) if the Holding Company is a subsidiary of a company which is
itself a subsidiary of that other company.
A company is a wholly owned subsidiary of another company if it has no members
except that
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other and that others wholly owned subsidiaries or persons acting on behalf of
that other or its wholly owned subsidiaries.
"THE HEADLEASE" means a sub-underlease dated 22 June 1995 made between
Xxxxxx Xxxxxxxx & Co Ltd (1) and the Landlord (2) in respect of the
Property including the Demised Premises;
"THE INSURANCE RENT" means the cost to the Landlord from time to time
of insuring the Demised Premises;
"THE INSURED RISKS" means fire storm tempest flood lightning explosion
riot civil commotion and malicious damage acts of terrorism earthquake
impact aircraft (other than hostile aircraft) and (except in time of
war) articles dropped therefrom bursting and overflowing of water tanks
apparatus and pipes and property owners liability and such other risks
against which the Landlord may from time to time insure;
"THE LANDLORD" includes the person for the time being entitled to the
reversion immediately expectant on the determination of the Term;
"THIS LEASE" means this sub-sub-underlease;
"THE PLAN" means the plan attached to this Lease;
"THE PLANNING ACTS" means the Town and Country Planning Acts for the
time being in force;
"THE PRESCRIBED RATE" means four per cent above the base leading rate
from time to time of Lloyds TSB Bank Plc;
"THE PROPERTY" means the land and buildings shown edged blue on the
plan annexed hereto and more particularly described in the Headlease
"RENT" means the rent payable pursuant to Clause 3;
"THE SERVICES" means the services described in Parts 2, 3 and 4 of the
Fourth Schedule
"THE SERVICE CHARGE" has the meaning given to it in the Fourth Schedule
"SUPERIOR LANDLORD" means any person for the time being entitled to any
interest reversionary to the Headlease;
"THE TENANT" shall include the successors in title and personal
representatives of the Tenant;
"THE TERM" means the Contractual Term together with any continuation or
extension thereof whether statutory or otherwise or such shorter period
up to the date of any early determination of the Contractual Term;
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"TREATED PLANT" means the Landlord's plant and equipment in the area
shown hatched yellow on the Plan;
"UTILITIES" means water soil gas steam air electricity telephone radio
television telegraphic and other signals services and supplies of any
nature;
"VAT" means United Kingdom Value Added Tax
2. INTERPRETATION
In this Lease unless the context requires otherwise:
2.1 Where any party hereto consists of two or more persons any obligations
stated or implied to be made by or with any of them shall be deemed to
be made by or with them jointly and severally.
2.2 Any reference to Acts of Parliament generally or to any Act of
Parliament or to the Planning Acts includes a reference to the relevant
Act or Acts as amended ore replaced from time to time and to any
subordinate legislation order instrument plan regulation permission and
direction made or issued thereunder or deriving validity therefrom.
2.3 The headings shall not affect the interpretation of this Lease.
2.4 The singular includes the plural and vice versa and the masculine
includes the feminine and neuter and vice versa.
2.5 Any covenant by the Landlord or the Tenant not to do any act or thing
shall covenant by the Landlord or the Tenant not to do any act or thing
shall include an obligation not to permit such act or thing to be done.
2.6 References to a clause or schedule are to the relevant clause or
schedule in this Lease.
2.7 Any provision herein conferring on or reserving to the Landlord any
right shall be construed as conferring that right also to any Superior
Landlord and to any person authorised by the landlord or any Superior
Landlord.
2.8 References to the Demised Premises shall be read as references to the
whole and each and every part of the Demised Premises.
2.9 Except as otherwise herein provided expressions defined in the
Agreement have the same meanings in this Lease.
3. DEMISE
The landlord DEMISES to the Tenant the Demised Premises TO HOLD the
same unto the Tenant for a term of 10 YEARS beginning on and including
March 28 2000 ("the Contractual Term") TOGETHER WITH the rights set out
in Part II of the First Schedule SUBJECT TO the exceptions and
reservations in Part III of the First Schedule all easements rights
quasi-easements and privileges to which the Demised
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Premises are or may be subject and the provisions or matters contained
or referred to in the documents referred to in the Second Schedule
insofar as the same affect the Demised Premises and are capable of
being enforced.
YIELDING AND PAYING therefor during the Term the following rents:
3.1 the yearly rent of pound sterling 37,788 (subject to revision in
accordance with the Third Schedule) payable by equal quarterly
instalments in advance on the usual quarter days without any deduction
save as may be required by law;
3.2 by way of further rent payable on demand the Insurance Rent;
3.3 by way of further rent the Service Charge and all other sums payable by
the terms of this Lease;
all Rent and other payments shall be paid on the dates set out herein
or if any of those dates is not a Business Day on the immediately
succeeding Business Day.
4. THE TENANT'S COVENANTS
The Tenant HEREBY COVENANTS with the Landlord as follows:-
4.1 RENT
To pay the rents as aforesaid.
4.2 OUTGOINGS AND UTILITIES
4.2.1 To pay all outgoings (including without limitation all rates taxes
duties charges assessments and impositions whatsoever) payable now or
at any time during the Term in respect of the Demised Premises or the
ownership or occupation thereof except any tax payable by the Landlord
in respect of its ownership of, rental income from or any dealing with
its reversionary interest.
4.2.2 To pay to the suppliers and indemnify the Landlord against all charges
(together with any applicable VAT thereon) for Utilities used at the
Demised Premises;
4.2.3 If any outgoings or Utilities are payable in respect of the demised
premises in common with the Property or other premises the Tenant will
on demand pay to the Landlord a fair proportion (determined according
to use if appropriate) thereof to be determined by the Landlord's
surveyor (his decision shall be binding on the Tenant) and to be
recoverable as rent in arrears.
4.2.4 To pay to the Landlord on demand a sum equivalent to any actual loss of
rating relief (if any) suffered by the Landlord as a result of the
Tenant being allowed rating relief in respect of any period before the
end of the Term (however determined).
4.3 REPAIR
4.3.1 Consistent with past practice to keep the Demised Premises in a good
state of repair
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and condition
4.3.2 To put and keep in good repair and condition and when necessary replace
and cause to be inspected and overhauled by some competent person at
least once in every six months all landlord's fixtures and fittings and
all plant installed in or forming part of the Demised Premises from
time to time.
4.3.3 As often as maybe required in order to maintain the Demised Premises in
reasonable condition to decorate the Demised Premises in a good and
workmanlike manner with appropriate materials of good quality and in
any event to decorate during the last year of the term (howsoever
determined).
4.3.4 To effect all repairs under clauses 4.3.1 to 4.3.3 of which notice in
writing shall be served on the Tenant by the Landlord and for which the
Tenant is liable hereunder within three months after the date of
service or forthwith in the case of emergency.
4.3.5 If the Tenant fails to comply with any such notice the Landlord may
with or without workmen and appliances (but without prejudice to the
right of re-entry hereinafter contained) enter upon the Demised
Premises and make good the same at the cost of the Tenant which cost
shall be repaid by the Tenant to the Landlord on demand together with
all professional charges and other expenses incurred by the Landlord in
connection therewith together with interest thereon at the Prescribed
Rate from the date of payment by the Landlord to the date of payment by
the Tenant.
4.4 PERMITTED USE
To procure that the Demised Premises are not used otherwise than as a
CMP materials production plant or for such other use as the Landlord
shall approve (such approval not to be unreasonably withheld or
delayed).
4.5 RESTRICTIONS ON USE
To procure that the Demised Premises and any rights granted to the
Tenant hereunder are not used or exercised:
4.5.1 for any dangerous noxious offensive illegal or immoral purpose and not
to cause permit or suffer any waste or noxious substance or other
contamination upon or leaching from the Demised Premises;
4.5.2 in such a way as in the opinion of the Landlord causes or might cause
the annoyance nuisance or prejudice to the Landlord or the owners
occupiers or users of adjoining or neighbouring property or to the
public;
4.5.3 for residential purposes;
4.5.4 for any sale by auction or for any public meeting entertainment or
exhibition.
4.6 ALIENATION
4.6.1 Not to charge assign or underlet part only or the whole of the Demised
Premises
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except as permitted by this clause 4.6.
4.6.2 Not to part with or share possession or occupation of the whole or part
of the Demised Premises or any part thereof:
4.6.3 Notwithstanding the provisions of this clause but subject always to the
Landlord's right in clause 6.10 the Tenant may assign this lease or
sub-let the whole of the Demised Premises to any company which is a
wholly owned subsidiary of the Tenant
4.7 ALTERATIONS
4.7.1 Not to make any structural alterations or additions to the Demised
Premises which would have a material adverse effect on their value
except with the previous consent in writing of the Landlord which shall
not be unreasonably withheld or delayed nor to make any alterations
which would or would be likely to interfere with any equipment at the
Demised Premises which relates to the Landlord's Treated Plant. For the
avoidance of doubt the Tenant may install plant and equipment subject
to the Tenant removing the same when this Lease ends
4.7.2 If the Tenant has breached the foregoing provisions of this Clause and
fails to remedy any such breach within a reasonable time after
receiving written notice from the landlord requiring it to do so to
permit the Landlord with or without workmen and appliances to enter the
Demised Premises (but without prejudice to the right of re-entry
hereinafter contained) and to remove any alterations and additions and
execute such works as are necessary to restore the Demised Premises to
their former state at the cost of the Tenant which cost shall be repaid
by the Tenant to the Landlord on demand together with all proper and
reasonable professional charges and other expenses reasonably and
properly incurred by the Landlord in connection therewith and interest
thereon at the Prescribed Rate from the date of payment by the Landlord
to the date of payment by the Tenant.
4.8 NOTICES
To give full particulars to the Landlord of any notice direction or
order made given or issued to the Tenant by any local or public
authority as soon as reasonably practicable and if so required by the
Landlord to produce the same to the Landlord.
4.9 STATUTES
To comply with all present and future Acts of Parliament statutes and
to execute and to do at the expense of the Tenant all such works and
things whatever as may now or at any time during the Term be required
by any competent authority to be executed or done upon or in respect of
the Demised Premises whether by the owner or occupier thereof.
4.10 PLANNING
4.10.1 Not to apply for or implement any permission or give notice to any
authority of an intention to commence or carry out any Development (as
defined in the Planning
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Acts) or enter into any agreement with any Planning Authority without
the Landlords previous consent in writing (not to be unreasonably
withheld or delayed if the Landlord has already consented to the
Development in question).
4.10.2 To notify the Landlord before implementing any planning permission or
giving notice to any authority of an intention to commence or carry out
any Development on the Demised Premises.
4.10.3 Unless the Landlord shall otherwise direct to carry out in a good and
workmanlike manner with suitable materials of good quality before the
expiration or sooner determination of the Term (however the same maybe
determined) and works stipulated to be carried out to the Demised
Premises by a date subsequent to such expiration or sooner
determination as a condition of any planning permission which may have
been granted to the Tenant and implemented.
4.10.4 "Development" in this Clause has the meaning given to it by the
Planning Acts.
4.11 LANDLORD'S COSTS
To pay to the Landlord all actual and reasonable and proper expenses
including without limitation costs fees charges disbursements stamp
duty (other than stamp duty falling under the provisions of the
Agreement) and expenses (including without limitation those payable to
counsel solicitors surveyors and bailiffs) reasonably and properly
incurred by the Landlord in relation or incidental to:
4.11.1 Every application made by the Tenant for a consent or approval required
by the provisions of this Lease whether granted or properly refused or
proffered subject to any qualification or condition or whether the
application is withdrawn (but not where such consent or approval is
unreasonably withheld or proffered subject to unreasonable
qualifications or conditions in circumstances where this Lease provides
that the consent or approval is not to be unreasonably withheld or
delayed).
4.11.2 The preparation and service of a notice under Section 146 of the Law of
Property Act 1925 notwithstanding that forfeiture is avoided otherwise
than by relief granted by the Court.
4.11.3 The recovery or attempted recovery of arrears of rent or other sums due
from the Tenant.
4.11.4 Any steps taken in connection with the enforcement of or in remedying
any breach of any of the Tenant's obligations hereunder.
4.12 PERMIT LANDLORD TO ENTER
To permit the Landlord and or its agents to enter the whole or any part
of the Demised Premises at the Tenant's convenience during the daytime
after reasonable prior written notice (save in emergency) accompanied
by a member of the Tenant's staff for any reasonable period of time and
any reasonable purpose.
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4.13 TO INSURE
4.13.1 LIABILITY INSURANCE
Until the expiry of the Contractual Term the Tenant shall within seven
days of the date of this Lease effect (i) cover in respect of
environmental risks as held by the Tenant from time to time in
connection with the Demised Premises and (ii) comprehensive general
liability insurance including (but not limited to) public liability
liabilities arising pursuant to statute liability to third parties
employer's liability (insofar as both such insurances are available in
the market at normal premium rates) for such amount as is prudent in
all the circumstances with a reputable insurance company in the joint
names of the Landlord and the Tenant and the Superior Landlord as
required by the Headlease.
4.13.2 INFORMATION AS TO INSURANCES
(a) The Tenant shall procure that its insurance brokers or the
insurers as the case may be provide to the Landlord and its
insurance advisers annually a summary of the insurances taken
out or to be taken out in compliance with the Tenant's
obligations under the foregoing provisions of this Clause 4.13
setting out details of the insurers, the renewal date, the
sums insured and/or the limits of indemnity, the insured risks
and a summary of the principal exclusions or excesses.
(b) The Tenant shall notify the Landlord within 21 days after any
change in the insurer.
4.13.3 INSURANCE ADVISERS
The landlord may at his own cost from time to time appoint such
insurance advisers as it shall deem appropriate to report on the
insurance arrangements entered into by the Tenant in respect of the
Demised Premises or third party liabilities.
4.13.4 INSURANCE BY LANDLORD
If the Tenant shall fail to effect insurance in accordance with the
requirements of this Clause 4.13 at any time after notice from the
landlord requiring it so to do the Landlord may (but shall not be
obliged to) effect such insurance itself and the cost of so doing shall
be recoverable from the Tenant on demand together with interest thereon
at the Prescribed Rate from the date of payment by the Landlord to the
date of payment by the Tenant.
4.14 DEFECTIVE PREMISES ACT 1972
To indemnify the Landlord against any claim proceedings demands costs
and expenses incurred under or in connection with any claims made
pursuant to the Defective Premises Act 1972 and to erect and display at
the Demised Premises promptly all appropriate notices and warnings of
relevant defects (within the meaning of Section 4 of that Act) and
without prejudice to the foregoing to display such
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notices as the Landlord may from time to time reasonably require to be
displayed in relation thereto.
4.15 COVENANTS AFFECTING THE REVERSION
To perform and observe the provisions of the documents referred to in
the Second Schedule so far as the same are still subsisting and capable
taking effect and relate to the Demised Premises.
4.16 COMMON FACILITIES
To pay on demand to the Landlord a fair proportion according to use
(determined by the Landlord's surveyor) of the cost incurred or payable
by the Landlord in connection with carrying out any works (including
without limitation construction repair and improvement) to the roadways
and conduits on the Property or of any cost relating to anything used
or capable of use in common with the Demised Premises and the Property
or other premises save where included in the Service Charge and any
dispute between the parties under this clause shall be subject to
paragraph 4 of Part I of the Fourth Schedule
4.17 PROTECTION OF THE DEMISED PREMISES AND ADJOINING PREMISES
4.17.1 To keep clean and unobstructed all Conduits at any time during the Term
in or forming part of the Demised Premises and not to overload or use
such Conduits (or any other conduits in the Landlord's adjoining land)
for any purpose for which they were not constructed and not to place
any foreign substance therein
4.17.2 To keep the Demised Premises at a temperature sufficiently high to
prevent freezing of water in such Conduits
4.17.3 Not to interfere with or otherwise cause access to any such Conduits
and any other Conduits under or near the Demised Premises to be or
become more difficult than the same now is
4.17.4 Not to do anything on the Demised Premises which would remove support
from or endanger any adjoining land buildings or structures in any way
whatsoever
4.17.5 Not to overload or do anything likely to lead to the overloading of the
Demised Premises
4.18 INFORMATION
4.18.1 On making an application for any consent required under this Lease to
disclose to the Landlord such information as the Landlord may
reasonably require to enable it to deal with such application
4.18.2 To produce on demand such evidence as the Landlord may reasonably
require to
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satisfy itself that the Tenant's covenants in this Lease have been
complied with and full particulars of all derivative or occupational
rights existing in respect of the Demised Premises however remote or
inferior
4.18.3 To notify the Landlord in writing immediately of any defect in the
Demised Premises which might give rise to a duty imposed by common law
or statute on the Landlord in favour of the Tenant or any other person
4.19 PROTECTION OF EASEMENTS
4.19.1 Demised Premises
4.19.2 Not to permit any easement to be acquired or encroachment made against
or upon the Demised Premises and promptly to give notice to the
Landlord of any attempt to make or acquire the same and to take such
steps (whether by legal proceedings or otherwise) to prevent the same
from being acquired or made as the Landlord may reasonably require
4.19.3 Not to give any person any acknowledgement that the Tenant enjoys the
access of light or air to any of the windows or other apertures in the
Demised Premises by the consent of such person
4.19.4 Not to enter into any agreement with or offer any inducement to any
person for that person to abstain from obstructing such access of light
or air
4.19.5 To notify the Landlord immediately if any person does or threatens to
do anything to obstruct such access of light or air and to take such
steps as the Landlord reasonably requires in respect of such actual or
threatened obstruction
4.20 INDEMNITIES
To be responsible for and to keep the Landlord fully indemnified
against all damage damages losses costs expenses actions demands
proceedings claims and liabilities made against or suffered or incurred
by the Landlord arising directly or indirectly out of:
4.20.1 Any act omission or negligence of the Tenant its servants or agents or
any person (other than the Landlord or any person claiming by through
or under the Landlord) at the Demised Premises expressly or impliedly
with the Tenant's authority; or
4.20.2 Any breach or non-observance by the Tenant of the covenants conditions
or other provisions of this Lease or any of the matters to which this
demise is subject as the same relate to the Demised Premises
4.21 RELETTING AND SALE BOARDS
4.21.1 To permit the Landlord to fix and retain on the Demised Premises in
such place as the Landlord shall reasonably determine notice boards for
the sale of the Landlord's interest in the Demised Premises and in the
last six months of the Term for the
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reletting of the Demised Premises
4.21.2 Not to take down or obscure any such boards
4.21.3 To permit all persons authorised by the Landlord to view the Demised
Premises at all reasonable times by prior appointment
4.22 NOT TO VITIATE INSURANCE
4.22.1 Not to do bring or keep at the Demised Premises any thing which is or
may become dangerous or offensive provided that this sub-clause shall
not prevent the Tenant from having at the Demised Premises any thing
which the Tenant requires for the carrying on at the Demised Premises
the use permitted by clause 4.4 subject to obtaining all necessary
consents from any relevant authority
4.22.2 Not to do anything to cause the insurance of the Demised Premises or
any adjoining or neighbouring property to become void voidable or the
premium to be increased
4.22.3 To comply with all recommendations of the insurers made under any such
insurance and the appropriate fire authority
4.22.4 To notify the Landlord in writing immediately if the Demised Premises
are destroyed or damaged by any Insured Risk
4.22.5 Not to effect any separate insurance of the Demised Premises against
loss or damage by any of the Insured Risks and to hold any moneys
received under any policy maintained in breach of this paragraph on
trust for the Landlord
4.22.6 In the event of the Demised Premises or any adjoining or neighbouring
property of the Landlord or any part thereof being destroyed or damaged
by any Insured Risk and the moneys 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 or default of the
Tenant or any person at the Demised Premises with the express or
implied authority of the Tenant or the Tenant's servants or agents
excluding then in every such case the Tenant will forthwith on demand
pay to the Landlord the whole or (as the case may require) the
irrecoverable proportion of the cost (including professional and other
fees) of completely making good such destruction or damage to the
Landlord's satisfaction
4.23 YIELD UP
At the expiration or sooner determination of the Term to yield up the
Demised Premises together with (subject to clause 6.12) all fixtures
and in good condition in accordance with the terms of this Lease and to
remove all signs erected by the Tenant and to the extent required by
the Landlord any alterations or additions made during the term and all
chattels and to immediately make good all damage caused by such removal
and to give up all keys to the Demised Premises to the Landlord
4.24 SUPERIOR LEASE
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4.24.1 To observe and perform the obligations of the Lessee contained in the
Headlease and any lease superior to it insofar as they relate to the
Demised Premises and are consistent with the terms of this Lease (but
not those expressly assumed by the Landlord in this Lease) and to
indemnify the Landlord (other than through its own acts) against all
losses arising directly or indirectly from any breach.
4.24.2 Not to omit or allow anything which might cause the Landlord to be in
breach of the Headlease or which if done, omitted or allowed by the
Landlord might be a breach of the covenants on the part of the Lessee
or the conditions contained in this Lease.
4.24.3 To permit any superior landlord or any persons authorised by any
superior landlord to enter the Demised Premises for the purposes
specified and upon the terms contained in the Headlease or any lease
superior to it as if the provisions in those documents dealing with the
Lessor's access to the Demised Premises were incorporated into this
Lease.
4.25 VAT
4.25.1 To pay to the Landlord any VAT chargeable in respect of any supplies
made by the Landlord to the Tenant hereunder
4.25.2 Where the Tenant is liable hereunder to reimburse the Landlord in
respect of any costs incurred by the Landlord the Tenant shall also
reimburse any VAT on such costs save to the extent that the VAT is
recoverable by the Landlord from H.M. Customs & Excise
4.25.3 Where such reimbursement shall be regarded by H.M. Customs & Excise as
consideration for supplies by the Landlord to the Tenant the Tenant
shall pay to the Landlord any VAT chargeable by the Landlord on any
such supplies
4.25.4 Any rent or other consideration payable in respect of any supply or
supplies by the Landlord to the Tenant shall be deemed to be exclusive
of VAT which shall be added where appropriate to such rent or other
consideration at the appropriate rate at the date of payment
4.26 PLANT AIR SUPPLY
Without prejudice to the generality of the obligation contained in
clause 4.3.2 to maintain in good working order the compressor, filter
and air receiver forming the Landlord's plant air supply and to ensure
at all times the uninterrupted supply of plant air to the buildings on
the part of the Property retained by the Landlord free of charge.
5. LANDLORD'S COVENANTS
The Landlord HEREBY COVENANTS with the Tenant as follows:-
5.1 QUIET ENJOYMENT
That the Tenant paying the Rent hereby reserved and performing and
observing its
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obligations hereunder may peaceably hold and enjoy the Demised Premises
during the Term without any interruption by the landlord or any person
lawfully claiming through under or in trust for it.
5.2 INSURANCE
5.2.1 To keep the Demised Premises insured against such of the Insured Risks
as are reasonably insurable in a sum which in the Landlord's opinion
represents the full reinstatement value thereof (including architects'
and surveyors' fees and demolition and site clearance charges) and
three years' loss of rent and any likely increases in rent during the
period covered by the insurance
5.2.2 To make all payments for the above purposes as soon as the same shall
respectively become payable and to provide the Tenant on request with a
copy or with particulars of such insurance policy
5.2.3 The Landlord may insure the Demised Premises in accordance with
paragraph 5.2.1 above together with other premises and the Insurance
Rent shall then be a fair proportion of the premium to be conclusively
determined by the Landlord's surveyor
5.2.4 Not to do or omit to do anything on the Property which would cause the
insurance of the Demised Premises to be void
5.3 TO REINSTATE
5.3.1 In the event of the Demised Premises being destroyed or damaged by any
Insured Risk then (subject to clause 6.5) to use all reasonable
endeavours to lay out any moneys received under the said policy of
insurance (except payments in respect of loss of rent which shall
belong to the Landlord absolutely) to reinstate the Demised Premises or
such part of it as shall have been so destroyed or damaged
5.3.2 The Landlord shall be under no obligation to reinstate the Demised
Premises in the form in which they existed before the damage or
destruction in question so long as the Demised Premises are equally
commodious and suitable for the use permitted by clause 4.4
5.3.3 In case it shall be impossible or impracticable to reinstate in
accordance with paragraph 5.3.1 above any moneys received under the
said policy of insurance (except payments in respect of loss of rent
which shall belong to the Landlord absolutely) shall be divided between
the Landlord and the Tenant according to the value at the date of the
damage or destruction of their respective interests in the Demised
Premises (to be determined in default of agreement by a single
arbitrator to be appointed by the President on the application of
either party)
5.4 HEADLEASE
5.4.1 To pay the rent and all other payments payable under the Headlease and
to perform so far as the Tenant is not liable for such performance
under the terms of this Lease the covenants and conditions on the part
of the lessee contained in the Headlease
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5.4.2 At the request and cost of the Tenant to use reasonable endeavours to
enforce the covenants on the part of the Superior Landlord contained in
the Headlease
5.4.3 Where the consent of the Superior Landlord is needed under the
provisions of this Lease to use reasonable endeavours at the request
and cost of the Tenant to obtain such consent (unless the Landlord's
consent is also required and is reasonably withheld)
PROVIDED THAT if any such request is made by the Tenant for the
Landlord to use reasonable endeavours to enforce the Superior
Landlord's obligations or obtain the Superior Landlord's consent the
Tenant shall as a condition precedent to the Landlord complying with
such request pay to the Landlord such sum as security for the
Landlord's costs of complying with the request as the Landlord shall
reasonably require
5.5 MANAGEMENT OF THE PROPERTY
Subject to the Tenant paying the rent the Insurance rent and the
Service Charge and complying with its obligations under this Lease the
Landlord shall throughout the Term
5.5.1 perform the Services in Parts 2 and 3 of the Fourth Schedule provided
that the Landlord shall not be liable to the Tenant in respect of:-
(a) Any failure or interruption in the provision of any of the
Services by reason of necessary repair replacement maintenance
of or the damage or destruction of any part or the whole of
the Property or any thing therein or forming part thereof or
by reason of mechanical or other defect or breakdown or frost
or other inclement conditions or shortage of materials
utilities or labour or any other cause whatsoever not
reasonably within the Landlord's control or where it becomes
impossible or impracticable to provide such services.
(b) Any act omission or negligence of any person undertaking the
Services or any of them save any act or omission of the
Landlord
(c) Any loss or damage to the Tenant caused as a result of any
works of construction repair or otherwise carried out on the
Property save any such works carried out by the Landlord
Provided that the Landlord shall not withdraw any of the Services in Parts 2 and
3 of the Fourth Schedule on ground solely of cost unless the Landlord first
consults with the Tenant with regard to the same and the Tenant refuses to
provide reasonable security for such cost prior to the Landlord incurring the
same.
5.5.2 At its discretion provide the Services in Part 4 of the Fourth
Schedule.
5.6 INFORMATION
5.6.4 To give full particulars to the Tenant of any notice direction or order
made given or
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issued to the Landlord in respect of the use and occupation or the
Tenant's interest in the Demised Premises by any local or public
authority as soon as reasonably practicable
5.6.5 If the Landlord is given notice by any utility company of any proposed
interruption of any of the Utilities serving the Demised Premises the
Landlord will give full particulars thereof to the Tenant as soon as
reasonably practicable
6. PROVISOS
6.1 RE-ENTRY
6.1.1 If any of the following events occur, namely:-
(a) if any of the Rent or other monies payable hereunder by the
Tenant or any part thereof shall be unpaid for fourteen days
after the Landlord has made a demand in writing requiring
payment of such Rent or other monies; or
(b) if there shall be any breach of any other covenant or
obligation on the part of the Tenant contained herein which
breach is not remedied (if capable of remedy) within thirty
days (or such longer period as is reasonable in the
circumstances) after the Landlord has notified the Tenant of
the breach; or
(c) if the Tenant takes any corporate action or other steps are
taken or legal proceedings started or renewed after a stay
(which proceedings are not vexatious or frivolous and not
brought without due cause) for its winding-up, dissolution or
re-organisation except for the purposes of reconstruction,
amalgamation or merger whilst solvent; or
(d) if the Tenant convenes a meeting of or proposes to enter into
any arrangement or composition with or assignment for the
benefit of all or any class of its creditors; or
(e) if an application is made or any other steps taken for the
appointment of an administrator or a liquidator or a similar
or analogous officer of the Tenant; or
(f) if an encumbrancer takes possession or a trustee, receiver,
administrative receiver or other similar officer is appointed
in respect of the whole or any material part of the
undertaking or assets of the Tenant.
then and in any such case and at any time thereafter it shall be lawful
for the Landlord or any person duly authorised by the Landlord in its
behalf to re-enter repossess and enjoy the Demised Premises or any part
thereof in the name of the whole and without prejudice to any right of
action or remedy of the Landlord in respect of any antecedent breach of
any of the covenants by the Tenant.
6.2 SERVICE OF NOTICES
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6.2.1 Each communication to be made hereunder shall be in English and shall
unless otherwise stated be made in writing but unless otherwise stated
may be made by telex letter or telefax.
6.2.2 Subject to 6.15.3 any communication or document to be made or delivered
by one person to another pursuant to this Lease shall be made or
delivered to that person at the address telex or telefax number
specified below (or to such other address telex or telefax number as
notified by that person from time to time to each of the other parties
hereto) and shall (subject to sub-clause (c)) be deemed to have been
made or delivered when such communication or document has been
despatched and the appropriate answerback received (in the case of any
communication made by telex) or (in the case of any communication made
by letter) when left at that address or as the case may be two business
days after being deposited in the post first class postage prepaid in
an envelope addressed to it at that address (four business days if
posted airmail from or to the United States of America) or in the case
of telefax upon transmission provided that confirmation of receipt is
received from the addressee
(i) CABOT CARBON
Address: Lees Lane, Stanlow, Ellesmere Port, South Wirral L65 4HT
Telefax No: 0151 356 0712
Attention: Secretary
(ii) CABOT MICROELECTRONICS CORPORATION
Address: 000 Xxxxx Xxxxxxx Xxxxx, Xxxxxx, Xxxxxxxx 00000
Telefax No:
Attention: Vice President of Operations
6.2.3 Any communication or document which in accordance with sub-clause 6.2.2
of this clause is made or delivered outside working hours will be
deemed to have been made or delivered at the commencement of the next
period of working hours.
6.3 COMPENSATION
Subject to the provisions of any Act of Parliament to the contrary
neither the Tenant nor any underlessee shall be entitled on quitting
the Demised Premises to any compensation (including without limitation
under Section 37 of the Landlord and Tenant Act 1954).
6.4 USE
No representation or warranty is made or given by the Landlord that the
Demised Premises may lawfully be used (whether under the Planning Acts
or otherwise) for the use permitted hereunder.
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6.5 PROVISO FOR ABATEMENT OF RENT AND CONDEMNATION TERMINATION
6.5.1 If the Demised Premises are so damaged or destroyed by an Insured Risk
as to become unfit for occupation in whole or in part (and the sum
insured is not wholly or partly irrecoverable by reason of any act or
omission of the Tenant or any person (other than the Landlord and any
person claiming by through or under the Landlord) in the Demised
Premises expressly or impliedly with the Tenant's authority or the
Tenant's servants or agents) then the rent or a fair proportion of it
shall be suspended until the expiry of three years after the date of
the damage or destruction or (if earlier) the date on which the Demised
Premises are again fit for occupation and use and in the event of such
damage or destruction the Landlord shall have 90 days in which to elect
whether or not to reinstate the Demised Premises. In the event that the
Landlord makes an election not to reinstate the Demised Premises then
either the Landlord or the Tenant may determine this Lease upon giving
to the other not less than one month's prior notice in writing. In the
event that the Landlord does not elect not to reinstate but
nevertheless the Landlord fails to complete reinstatement works within
12 months of the date of such damage or destruction then the Tenant
shall be entitled during the month following the expiry of 12 months of
the date of such damage or destruction serve upon the Landlord one
month's notice in writing to determine the Lease. Upon the
determination of the Lease under the provisions of this clause this
Lease shall determine absolutely but without prejudice to any
antecedent right of either party or any antecedent breach of the terms
of this Lease.
6.5.2 Paragraph 6.5.1 above shall not apply to the Insurance Rent or the
Service Charge to the extent that insurance is effected or services are
provided.
6.5.3 Any dispute as to the proportion aforesaid shall be determined by a
single arbitrator to be appointed in default of agreement by the
President on the application of either party
6.6 NEIGHBOURING PROPERTY
The Landlord shall have power at all times to do or permit to be done
anything it may think fit with (and notwithstanding anything to the
contrary herein expressed or implied the Tenant shall not be entitled
to any rights which would restrict or interfere with the free user of)
any adjoining or neighbouring land (including any part of the Property
for building or any other purpose
6.7 REMOVAL OF TENANT'S PROPERTY
If at such time as the Tenant has vacated the Demised Premises after
the determination of the Term (however determined) any property of the
Tenant shall remain in the Demised Premises and the Tenant shall fail
to remove the same within thirty days after being served with a notice
by the Landlord requesting the Tenant to do so then the Landlord may as
the agent of the Tenant (and the Landlord is hereby appointed by the
Tenant to act in that behalf) sell such property and shall then hold
the proceeds of sale (after deducting the costs and expenses of removal
storage and
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sale reasonably and properly incurred by it and any sums due to it by
the Tenant) to the order of the Tenant provided that the Tenant shall
indemnify the Landlord against any liability incurred by it to any
third party whose property shall have been sold by the Landlord
6.8 DISPUTES
In case any dispute shall during the Term arise between the Tenant and
the tenants and occupiers of any adjoining or neighbouring property
belonging to the Landlord relating to the Conduits serving the Demised
Premises or any such adjoining or neighbouring property or any fence
roadway or other thing used in common with the Demised Premises and any
such property the same shall from time to time be settled and
determined by the Landlord which determination shall be final and
binding and the costs to the Landlord shall be borne equally amongst
the parties in dispute
6.9 EASEMENTS
The Tenant shall not be entitled to any rights not expressly conferred
by this Lease and Section 62 of the Law of Property Act 1925 shall not
apply
6.10 LANDLORD'S OPTION TO DETERMINE
The Landlord shall be entitled to determine this Lease if any single
person or company (or together members of a company in the same Group
shall acquire more than 25% of the shares in the Tenant subsequent to
the Landlord (or together members in the same Group as the Landlord)
ceasing to maintain any ownership of shares in the Tenant and following
which at any time thereafter the Landlord may serve not less than one
hundred and twenty days notice in writing upon the Tenant and upon
expiry of any such notice this lease shall determine but without
prejudice to any antecedent liability of either Landlord or Tenant.
6.11 EXPANSION RIGHT
The Landlord hereby grants to the Tenant the continuing right and
option to expand the Demised Premises to include either or both of the
expansion area shown hatched yellow on the Plan and comprising
approximately 454 square metres and/or the expansion area hatched green
on the plan and comprising approximately 634 square metres. The option
is granted on the following terms:
6.11.1 The option is exerciseable upon the Tenant serving not less than six
months notice in writing upon the Landlord specifying which expansion
area the Tenant requires but without prejudice to the Tenant's right to
serve a notice also in respect of the other expansion area (if not
already served)
6.11.2 The exercise of the option with regard to the area hatched yellow is
conditional upon the Landlord and Tenant agreeing an alternative
location at the Property for relocating the Landlord's Treated Plant
and the Tenant procuring all statutory and other consents which may be
required for the relocation of the Treated Plant and upon the Tenant
either undertaking the relocation of the Treated Plant or (at the
election of the
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Landlord) reimbursing to the Landlord all actual and reasonable costs
and expenses incurred by the Landlord in connection with such
relocation including without limitation all costs of re-routing
services and utilities.
6.11.3 Upon the date specified in the Tenant's notice the landlord and the
Tenant will enter into a deed (the "SUPPLEMENTAL DEED") supplemental to
this Lease amending the definition of the Demised Premises to include
the relevant expansion area and increasing the rental for the Demised
Premises so that in addition to the rental payable immediately prior to
the Supplemental Deed the rent will increase by an amount which
represents a rental per square foot for the expansion area which is
equivalent to the rental per square foot for the remainder of the
Demised Premises.
6.11.4 Upon completion of the Supplemental Deed the Tenant shall also pay an
apportioned sum representing a pro-rata increase based upon square
footage of the expansion area in respect of any other costs payable by
the Tenant under this Lease and all other terms of this Lease shall
apply to the expansion area.
6.12 TENANT'S PLANT AND EQUIPMENT
It is agreed that the fumed metal oxide dispersions plant and equipment
within the Building and the Demised Premises and whether in existence
at the date of this Lease or installed by or at the cost of the Tenant
after the date of this Lease are as the date of this Lease and at all
times hereafter chattels in the ownership of the Tenant.
6.13 CO-OPERATION
The parties will co-operate with each other in good faith with regard
to the shared use of the instrument room at the Demised Premises and so
as not to interfere with each other's use of the instrument room or the
carrying on of each other's business.
6.14 CONFIDENTIALITY
Each of the Landlord and the Tenant agree to keep confidential and not
disclose, and shall cause their respective Group Members to keep
confidential and not disclose, to any party or use for any purpose
(other than the performance of this Lease), any proprietary or other
confidential information of the other party which is received pursuant
to this Lease ("Confidential Information"). Confidential Information
shall be subject to the restrictions of this clause only if it is
marked as confidential or proprietary or, if not disclosed in tangible
form, the disclosing party notifies the recipient of its confidential
or proprietary nature prior to its disclosure. For purposes of this
Clause, Confidential Information of a party does not include, and a
party and a party's Group Members will have no obligations under this
clause with respect to, any information of the other party or any Group
Members of the other party (the other party and Group Members of the
other party being referred to as the "receiving party") which:
6.14.1 is already known to the receiving party from a source other than the
disclosing party as evidenced by competent proof thereof; or
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6.14.2 is or becomes publicly known through no wrongful act of the receiving
party (in which event the receiving party's obligations under this
clause in respect thereto shall terminate on the date such information
enters the public domain); or
6.14.3 is rightfully received by the receiving party from a third party
without violation of any obligations of confidentiality owed by the
third party to the disclosing party; or
6.14.4 is disclosed by the disclosing party to a third party without
restrictions on the third party's right to use or disclose such
information; or
6.14.5 is independently developed by employees or consultants of the receiving
party without use of or reference to the disclosing party's
Confidential Information; or
6.14.6 is approved for release by written authorisation of the disclosing
party
6.15 JURISDICTION
6.15.1 This Lease shall be governed by English law
6.15.2 The parties submit to the non-exclusive jurisdiction of the English
courts
6.15.3 The Tenant confirms that any proceedings in the English Courts will be
validly served if served upon Cabot Microelectronics Corporation at Cab
o Sil Site Sully Moors Road, Sully, South Glamorgan, CF64 5RP and
marked for the attention of Xxxxx Xxxxxxx.
6.16 LANDLORD AND TENANT ACT 1954
Having been authorised to do so by an Order of the Mayors & City of
London County Court dated 28th March 2000 the parties hereto agree that
the Landlord and Tenant Act 1954 sections 24 to 28 inclusive shall not
apply to this Lease
IN WITNESS whereof this Lease is executed as a deed and on the day and year
first before written and it has been delivered
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FIRST SCHEDULE
(PARTICULARS OF THE DEMISED PREMISES)
PART I
ALL THAT Leasehold Property known as land on the south side of Cardiff Road
Xxxxx shown edged red on the attached plan together with all buildings now or
hereafter erected or in the course of erection thereon and all conduits
exclusively serving the same so far as the Landlord is able to demise such
together with all Landlord's fixtures and fittings from time to time in and
about the same and all additions and alterations to such premises fixtures and
fittings carried out during the Term
PART II
(RIGHTS GRANTED)
There is granted to the Tenant the following rights (insofar as the Landlord is
able to grant the same).
1. The right for the Tenant and all persons authorised by it (in common
with all other persons entitled thereto) for the purposes of obtaining
access to and egress from the Demised Premises to pass and xxxxxx at
all times with or without vehicles over and along the road coloured
brown on the Plan subject to compliance with the Landlord's security
and access arrangements.
2. The free and uninterrupted passage of Utilities from and to any part of
the Demised Premises by and through all Conduits which are now or may
within the Perpetuity Period during the Term be in or upon any
adjoining or neighbouring part of the Property.
3. The right to support as now exists for the Demised Premises from any
adjoining premises and
4. The right subject to space being available from time to time to park up
to twelve private motor vehicles in the car park shown hatched [pink]
on the Plan.
PART III
(EXCEPTIONS AND RESERVATIONS)
DEMISED PREMISES
There is reserved to the Landlord its servants and agents and all other persons
authorised by the landlord the following:
1. The right after reasonable prior written notice (save in emergency) and
at all reasonable times to enter the Demised Premises with or without
workmen for
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the purpose of carrying out any works (whether of construction
installation connection repair or otherwise) of or in respect of any
property adjoining or neighbouring the Demised Premises or any Conduits
the persons so entering to act in a reasonable manner and to make good
any damage to the Demised Premises resulting from the exercise of such
rights
2. The free and uninterrupted passage of Utilities from and to other parts
of the Property or any other adjoining or neighbouring property of the
Landlord by and through all Conduits which are now or may within the
Perpetuity Period be in under or over the Demised Premises
3. The right of support as now exists for the remainder of the Property
from the Demised Premises
4. The right to pass and xxxxxx at all times with or without vehicles over
and along the area coloured yellow on the Plan.
5. The unrestricted right at all times to access and maintain all
facilities servicing the Landlord's Treated Plant including the
instrument panels in the instrument room, feed lines through the batch
tank enclosure, feed silo, transfer pump, instruments, piping cabling
and conduits.
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SECOND SCHEDULE
(MATTERS TO WHICH THE DEMISE IS SUBJECT)
Matters referred to in the Property and Charges Registers of title number
WA547039 at H M Land Registry including any rights appertaining to the water
main mentioned in the Deed of Grant dated 4th May 1990 between Cabot Carbon
Limited (1) and ICI Chemicals and Polymers Limited (2) notwithstanding any
variation of the route of the water main therein mentioned.
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THIRD SCHEDULE
(RENT REVIEW)
1. In this Schedule the following expressions have the following meanings:
"REVIEW DATE" means the fifth anniversary of the beginning of
the term
"REVIEW PERIOD" means the period from the Review Date to the
expiry of the term.
"THE CURRENT RENT" means the rent payable by the Tenant immediately
before the beginning of the Review Period in
question
"RACK RENTAL VALUE" means the rent at which the Demised Premises
might be expected to be let as a whole in the
open market without taking a premium at the
beginning of the Review Period in question by a
willing landlord to a willing tenant for a term
equal to the residue of the term of this Lease
(or [10 years] whichever is the longer) with
vacant possession at the commencement of the term
and upon the same terms (other than as to the
amount of the rent and as hereinafter provided)
as this Lease and on the assumption if not a fact
that:
(i) the Tenant has observed and
performed all its covenants
(ii) the demised premises are fit for
immediate use and occupation
(iii) in case the demised premises have
been destroyed or damaged they have
been fully reinstated
(iv) there are no restrictions on
alienation of the whole or any part
of the Demised Premises on the part
of the Tenant
but disregarding:
(i) the fact that the Tenant or its
undertenants have been in
occupation of the demised premises
(ii) any goodwill attached to the
demised premises by reason of the
carrying on there of the business
of the Tenant its undertenants or
their predecessors in their
respective businesses
(iii) any works carried out whether
before or during the term by the
Tenant or its undertenants.
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2. The rent for the Review Period shall be the Current Rent or the Rack
Rental Value whichever is the higher.
3. The Landlord may serve upon the Tenant not earlier than three months
before the Review Date notice seeking to agree the rent with effect
from Review Date for the Review Period.
4. The parties may agree the Rack Rental Value for the Review Period at
any time after the date which is three months before the Review Date.
5. The Rack Rental Value shall be determined in default of agreement by
the Rent Review Date or such later date as the Landlord and Tenant
agree by a surveyor to be appointed in default of agreement by the
President of the Royal Institution of Chartered Surveyors upon the
application of either party who shall act as an arbitrator in
accordance with the Arbitration Acts 1950-1996 and whose costs shall be
in his award.
6. Upon the Rack Rental Value being agreed or determined as aforesaid a
memorandum of the rent then payable shall at the expense of the Tenant
be prepared by the Landlord's solicitors and signed by a duly
authorised officer on behalf of the Landlord and the Tenant.
7. In the event of the Rack Rental Value not being agreed or determined as
aforesaid on or before the relevant Review Date then in respect of the
period of time (hereinafter called "the said interval") beginning with
the relevant Review Date and ending on the quarter day immediately
following the date of such agreement or determination the Tenant shall
make payments on account in manner hereinbefore provided at the rate of
the Current Rent and at the expiration of the said interval there shall
be due as a debt payable by the Tenant to the Landlord forthwith on
demand a sum of money equal to the amount (if any) where by the Rack
Rental Value so agreed or determined shall exceed the Current Rent duly
apportioned on a daily basis in respect of the said interval such duly
apportioned sum shall bear interest calculated on a day-to-day basis at
four per cent below the Prescribed Rate from the relevant Review Date
until the date of actual payment.
8. If at any time by reason of any enactment (which expression shall
include any Act or Parliament now or hereafter in force and any
instrument regulation or order made thereunder or deriving validity
therefore) or for any other reason whatsoever the Landlord shall not be
entitled or not be able either in whole or in part:-
8.1 to increase the rent payable hereunder in accordance with the terms of
this Lease; or
8.2 to recover such increase from the Tenant.
then the Landlord shall be entitled at any time by notice in writing to the
Tenant to require that for all the purposes of this Lease the date on which such
disentitlement or disability shall cease shall be deemed to be a Review Date.
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Exhibit 10.13
THE FOURTH SCHEDULE
PART I
(SERVICE CHARGE)
1. In this Schedule the following expressions have the following
meanings:-
1.1 "the Service Costs" means the costs referred to in paragraph 2 below
1.2 "the Specified Proportion" means as indicated (where appropriate and
without prejudice to paragraph 2 below) in Parts 3 and 4 of this
Schedule either all metered charges and/or or a fair proportion to be
based upon use (if appropriate) of any other Service Costs to be
determined by the Landlord's surveyor whose decision shall be final and
binding on the Tenant and which may differ from one cost to another and
which may be the whole or part of any such cost
1.3 "the Service Charge" means the Specified Proportion of the Service
Costs
2. The costs to be included in the Service Costs are insofar as such
matters are not expressly otherwise provided for in this Lease the
reasonable and proper costs of and incidental to the matters set out in
Parts 3 and 4 of this Schedule together with interest on monies
borrowed by the Landlord (or other expenditure paid or incurred in
connection with such loan) for the purpose of paying any such costs as
aforesaid and any VAT incurred by the Landlord in respect of the
Services set out in Parts 3 and 4
3. The Tenant shall pay the Service Charge during the Term making payment
in respect of each and any service costs within thirty days of demand
being made by the Landlord in respect of the same.
4. Any dispute arising out of the provisions of this clause shall be
referred to the decision of a single arbitrator to be agreed between
the parties hereto or in default of agreement to be appointed on the
application of either party by the President
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Exhibit 10.13
PART 2
(THE SERVICES WHICH THE LANDLORD MUST PROVIDE WITHOUT ADDITIONAL CHARGE)
1. The provision and maintenance of the following utilities:
1.1 The provision and maintenance of the existing on site radio system with
channel three reserved for the Tenant.
1.2 The provision of 12 car parking spaces in accordance with Part 2 of the
First Schedule.
2. Toilet and washroom facilities upon the part of the Property retained
by the Landlord to a standard and degree as existing at the date of
this Lease
PART 3
(SERVICES WHICH THE LANDLORD MUST PROVIDE SUBJECT TO ADDITIONAL CHARGE)
1 The following utilities:
1.1 11 kV electricity supply from COS sub-station to MMD subject to monthly
metered charge equivalent to cost incurred by Landlord.
1.2 Provision and maintenance of instrument air supply subject (at the
landlords discretion) to payment of metered charges equivalent to cost
incurred by the Landlord.
1.3 Provision and maintenance of natural gas supply subject (at the
landlords discretion) to payment of metered charges equivalent to cost
incurred by the Landlord.
1.4 Provision and maintenance of process feed water supply subject (at the
landlords discretion) to payment of metered charges equivalent to cost
incurred by the Landlord.
1.5 Provision and maintenance of potable water supply subject (at the
landlords discretion) to payment of metered charges equivalent to cost
incurred by the Landlord.
1.6 Maintenance and allowing shared use of main site sewer subject to
payment by the Tenant of metered discharge costs.
and in each case subject to payment by the Tenant of a fair proportion
according to use of any standing charge or maintenance or other
associated cost.
2. The provision of fire, gas and other safety systems subject to payment
by the Tenant of a
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fair and reasonable proportion of the costs incurred by the Landlord.
3. The provision of shower and locker room facilities subject to payment
by the Tenant of a fair and reasonable proportion of the expense to the
Landlord including any internal costings.
4. The provision of reasonable security systems and arrangements for the
Property.
5. The making available to the Tenant the shared use of the Landlord's
canteen facilities existing from time to time.
6. The provision installation inspection repair rebuilding improvement
renewal lighting and cleaning of all roads car parks loading bays
structures fences walls signs stairways paths pavements yards gardens
landscaped areas open spaces Conduits and Plant in or about the
Property and all other things whatsoever the use of which is common to
the Demised Premises and other premises near or adjoining thereto
(whether or not under the ownership or control of the Landlord)
PART 4
(SERVICES WHICH THE LANDLORD MAY PROVIDE AND CHARGE AT LANDLORD'S OPTION)
1. The provision of waste disposal services subject to payment by the
Tenant of a monthly fair and reasonable charge together with a fair
proportion of the expenses payable by the Landlord to any outside waste
disposal service provider.
2. The provision and maintenance of telephone exchange system subject to
payment by the Tenant of all itemised call charges and a fair and
reasonable service fee.
3. Maintenance by the Landlord of plant and equipment of the Tenant at the
Demised Premises subject to payment by the Tenant of such service cost
and hourly charge out rate as may be agreed from time to time between
Landlord and Tenant.
4. Provision and maintenance of DCS automatic control by the Landlord
subject to payment by the Tenant of such service cost and hourly charge
out rate as may be agreed from time to time between Landlord and
Tenant.
5. The provision of such office space and conference room facilities as
the Landlord may in its discretion from time to time provide (if any).
6. The provision by the Landlord for use by the Tenant of one Nissan
Storage Shed numbered 6 so long as the Landlord in its discretion shall
provide the same or such other alternative storage.
7. Incurring fees of any professional person (including without limitation
any
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accountant solicitor barrister or surveyor) engaged in connection with
the matters set out in this Schedule including without limitation the
cost of valuations of the Demised Premises or the Property in order to
determine the cost of reinstatement for insurance purposes
8. The carrying out by the Landlord of any work in or about the Property
in pursuance of any requirement of any Act of Parliament or of any
local or public authority
9. Preparing accounts and certificates relating to the calculation of the
Service Charge
10. Office support by way of reception services and the making of travel
arrangements
11. The provision of cleaning services
12. Vending machine access and use
13. Such other services things or works whatsoever as may be provided by
the Landlord from time to time which the Landlord reasonably considers
to be for the benefit of or any part or parts thereof
SIGNED as a DEED by )
CABOT CARBON LIMITED )
acting by )
)
)
Director - Xxxxx Xxxxx
Secretary - Xxx Xxxxxxxxx
SIGNED as a DEED by )
CABOT MICROELECTRONICS )
CORPORATION )
acting by )
XXXXXX XXXX )
VICE PRESIDENT OF OPERATIONS )
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