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EXHIBIT 10.6
THIS LEASE is made the Third day of March One thousand nine hundred and
ninety-seven BETWEEN the Landlord the Tenant and the Surety whose respective
names and address are set out in the First Schedule
[LONDON STAMP OFFICE 1 STAMP]
[BRITISH TAX STAMPS]
WITNESSETH:
1. IN this Lease unless the context otherwise requires the various
expressions set out below shall have the meaning or bear the interpretation
there set out
(a) "the Landlord" shall include the reversioner and any other person for
the time being immediately expectant on the Term hereby created and for the
purpose of entering upon the Demised Premises shall include the Superior
Landlord (if any)
(b) "the Tenant" shall include the person from time to time entitled to
the Term and the personal representatives of the Tenant
(c) words importing the masculine gender shall where necessary be
construed as importing the feminine gender and words importing the neuter
gender shall where necessary be construed as importing the masculine gender
or the feminine gender as the case may be
(d) 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 Landlord" or "the Tenant" or "the Surety" the covenants
expressed to be made by the Landlord or the Tenant or the Surety shall be
deemed to be made by such persons jointly and severally
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(e) "the Demised Premises" means all that premises described in the Second
Schedule
(f) "Conduits" means and includes chimney flues ventilating ducts air
conditioning systems cisterns tanks radiators water gas soil and waste
water pipes sewers and drains central heating boilers and pipes wires and
cables used for the conveyance of electrical current telephone cables valves
traps and switches and includes where relevant ancillary equipment and
structures
(g) "the Development" means the land comprised in Title Number TGL 54450 and
more particularly described in Part II of the Second Schedule hereto
(h) "the Access Road" means the roadway and the footpath adjacent thereto
shown for identification purposes only cross hatched xxxxx on Plan B annexed
hereto
(i) "the Common Parts of the Development" means those parts of the Development
which at the date hereof have not been and are not intended to be let or sold
by the Landlord and are capable of benefitting and being used by the Tenant in
connection with the use of the Demised Premises and for the purpose of the Sixth
Schedule hereof the Common Parts of the Development shall be deemed to include
spaces for parking vehicles used by the Tenant and spaces used for parking
vehicles by other tenants in the Development
(j) "the Second Floor Lease" means a lease of the second floor and gallery
area of the Demised Premises dated 8th November 1996 and made between the
Landlord (1) and Imagination and Design Limited (2)
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Floor Plans
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2. THE LANDLORD demises to the Tenant the Demised Premises together with the
rights but subject to the exceptions and reservations mentioned in the Second
Schedule subject to and with the benefit of the Second Floor Lease TO HOLD unto
the Tenant for the term of years specified in the First Schedule ("the Term")
PAYING yearly for the first five years of the Term the RENT of NINETY-SEVEN
THOUSAND SIX HUNDRED AND TWENTY-FIVE POUNDS (Pound Sterling 97,625.00) per
annum exclusive and for the remainder of the Term such rent as shall be
calculated under the provisions of the Ninth Schedule herein such rent to be
paid by equal quarterly payments in advance on the usual quarter days in every
year or proportionately for any fraction of a year the first of such payments
to be made on the Third day of September One thousand nine hundred and
ninety-seven and to be a due proportion of the Rent calculated from the Third
day of September One thousand nine hundred and ninety-seven until the 29th day
of September One thousand nine hundred and ninety-seven
3. THE TENANT covenants with the Landlord to observe and perform the
covenants and stipulations set out in the Third Schedule
4. THE LANDLORD covenants with the Tenant to observe and perform the
covenants and stipulations set out in the Fourth Schedule
5. THE LANDLORD AND THE TENANT agree the provisions set out in the Fifth
Schedule
6. THE SURETY HEREBY COVENANTS with the Landlord to observe and perform the
covenants set out in the Seventh Schedule PROVIDED ALWAYS that the Surety will
cease to be liable under this clause and shall be released entirely from all
subsequent liability hereunder in the event that
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(1) The Tenant shall provide to the Landlord accounts for the most recent
three consecutive years audited by a Chartered Accountant and approved by
the directors of the Tenant not more than three months before such accounts
are provided to the Landlord showing for each such year net profits before
tax amounting to not less than three times the annual rent reserved by the
Lease under Clause 2 hereof in the year to which the said accounts relate
and PROVIDED FURTHER that at the time of production of such accounts no
monies shall be due from the Tenant or the Surety to the Landlord or
(2) on completion of a lawful assignment of the Lease in accordance with
the provisions hereto PROVIDED ALWAYS that there is produced in conjunction
with a grant of licence for such assignment a surety reasonably acceptable
to the Landlord who will covenant therein in equivalent form to the
provisions of the Seventh Schedule hereto or there is provided on the grant
of such licence a security deposit in an amount equivalent to one half of
the annual rent then payable under the Lease such amount to be placed in a
separate designated Deposit Account interest accruing to the Tenant and
otherwise upon the terms of the agreed draft deed set out in the Eighth
Schedule hereto
7. WE certify that there is no agreement for lease to which this Lease gives
effect
IN WITNESS whereof the parties hereto have caused this instrument to
be executed as a Deed in the presence of the person(s) mentioned below the
day and
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year first above written
THE FIRST SCHEDULE
THE LANDLORD : MARLDOWN LIMITED whose registered
office is situated at Xxxxxxxx Xxxxx 00/00
Xxx Xxxxxx Xxxxxx XX0X 0XX
THE TENANT : MICROMUSE plc whose registered office is
situated at Disraeli House 00 Xxxxxx
Xxxxxx Xxxx Xxxxxx XX00 0XX
THE SURETY : XXXXXXXXXXX XXXX XXXXX of 00
Xxxxxxx Xxxx Xxxxxx XX0
THE TERM : 10 years
THE COMMENCEMENT DATE: 3rd March 1997
THE AUTHORISED USER : Use within Class B1 of the Town and
Country Planning (Use Classes) Order 1987
THE SECOND SCHEDULE
PART I
The Demised Premises
ALL THAT BUILDING situate at and known as Gladstone House Adelaide Road 00
Xxxxxx Xxxxxx Xxxx Xxxxxx XX00 (all of which premises are for the purposes of
identification only shown edged red on Plans A and B annexed hereto) and for
the purposes of obligation as well as grant include the structure roof and
foundations thereof and all conduits which are situate therein
TOGETHER WITH:-
(a) the Landlord's fixtures and fittings on the Demised Premises
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(b) the free and uninterrupted passage and running of water soil gas and
electricity and all other services to and from the Demised Premises in through
and along the Conduits which are now or may hereafter during the Term be in on
over or under the Development which serve the Demised Premises
(c) the right of support shelter and protection for the Demised Premises from
the remainder of the Development as enjoyed at the date hereof
(d) the right to pass and xxxxxx at all times and for all purposes connected
with the use and enjoyment of the Demised Premises to and from the Demised
Premises from and to the nearest highway maintainable at public expense:
(i) with or without vehicles of any description over and along the Access
Road
(ii) on foot only over and along those parts of the Common Parts of the
Development which give access to the Demised Premises
(e) a right of access on to any part of the Development for the purpose of
carrying out the Tenant's obligations herein to the extent that the Tenant
cannot otherwise do so
(f) the right to display a sign indicating the Tenant's name and business on
the exterior of the Demised Premises in a position approved by the Landlord
such approval not to be unreasonably withheld or delayed
(g) the exclusive right to park roadworthy vehicles within the car parking
area shown edged green on Plan B ("the Car Parking Spaces") subject to the
rights reserved in the Second Floor Lease for the tenants therein
EXCEPTING AND RESERVING to the Landlord and its lessees tenants servants and
licensees and the owners lessees and occupiers for the time being of the
Development and any adjoining or neighbouring property and all persons
authorised by them and all other persons from time to time having the like right
(a) the free and uninterruped passage and running of water soil gas and
electricity and all other services to and from the Demised Premises and such
adjoining neighbouring property through the Conduits which now are in on over
or under the Demised Premises or any part thereof together with a full right of
entry to the Demised Premises at all reasonable times on giving no less than
two days
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prior written notice (except in emergency) for the purposes of installing adding
to inspecting maintaining replacing and repairing the Conduits the person or
persons exercising such right making good all damage to the Demised Premises
occasioned by such entry or any works consequent thereon to the reasonable
satisfaction of the Tenant and provided that the person or persons so entering
shall cause as little inconvenience and interference as possible to the Tenant
and the business of the Tenant
(b) full right and liberty at any time or times to execute works repairs and
make erections upon or to erect upon rebuild reconstruct make additions to
modify or alter the Development or any part thereof (except the Demised
Premises) or the adjoining and neighbouring property and to use the Building
and the Development (except the Demised Premises) and the adjoining and
neighbouring property in such manner as they may think fit whether or not the
access of light and air to the Demised Premises or any part thereof shall
thereby be interfered with
(c) the right of support shelter and protection for the Development and any
adjoining and neighbouring property from the Demised Premises as enjoyed at the
date hereof
(d) the right to enter the Demised Premises at all reasonable times upon no
less than 48 hours prior written notice (except in case of emergency) for the
purpose of carrying out any works or doing anything whatsoever comprised within
the Landlord's rights and obligations in this Lease Provided that the person or
persons so entering the Demised Premises shall cause as little interference and
inconvenience as possible to the Tenant and shall not interfere with the
Tenant's ability to carry out business from the Demised Premises and shall make
good all damage occasioned by such entry or the carrying out of any works to the
reasonable satisfaction of the Tenant
PART II
The Development
ALL THAT parcel of land with the buildings erected thereon situate and known as
the Xxxxxxxx Xxxxxx Xxxxxxxx Xxxx Xxxxxx XX00 0XX as the same is registered at
H M Land Registry under Title Number TGL 54450
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THE THIRD SCHEDULE
The Covenants by the Tenant
1. TO pay the reserved rents on the days and in the manner aforesaid without
any deduction and if the Landlord so requires to pay the same by Bankers
Standing Order direct to the bank account of the Landlord or as it shall direct
2. TO pay and contribute by way of further rent the Interim Charge and the
Service Charge (as those expressions are defined in the Sixth Schedule) at the
time and in the manner provided in that Schedule
3. (a) TO bear pay and discharge all existing and future rates taxes duties
assessments impositions charges liabilities and outgoings whatsoever (whether
parliamentary parochial or otherwise and whether or not of a capital or
non-recurring nature) which are now or may at any time hereafter be assessed
charged or imposed upon or payable in respect of the Demised Premises or any
part thereof or on the owner or occupier in respect thereof (excluding any
payable by the Landlord in respect of the receipt of rents or other payments
made by the Tenant in accordance with the provisions hereof except any Value
Added Tax payable on the rents or any other such payments on any disposition or
dealing with or the ownership of the reversion to this Lease)
(b) To pay all charges for electricity gas and water consumed at the
Demised Premises including any connection and hiring charges and meter rents
and to perform and observe all present and future regulations and requirements
of the electricity gas and water supply companies or boards in respect of the
supply and consumption of electricity gas and water to the Demised Premises
4. (a) AT all times during the Term to repair replace (if beyond economic
repair) rebuild cleanse and keep the Demised Premises and all additions and
improvements thereto and the Landlord's fixtures and fittings and the Conduits
therein in good and substantial repair and condition
(b) To paint with two coats of best quality paint or otherwise treat in a
proper and workmanlike manner all the wood and iron work of the Demised
Premises heretofore or usually painted or otherwise treated once in the fifth
year as regards the interior and once in every third year as regards the
exterior and in each case in the last year of the Term (whether determined by
effluxion of time or under
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the provisions for re-entry hereinafter contained or otherwise) provided that
the covenants relating to the last year of the Term shall not apply where the
Tenant shall have redecorated the Demised Premises less than eighteen months
prior to the expiry of the Term and also to grain varnish clean paper and
otherwise decorate in a proper and workmanlike manner all such internal parts
of the Demised Premises as have been or ought properly to be so treated and so
that in the last year of the Term the tints colours and patterns of all such
works of interior decoration shall be such as shall be approved by the Landlord
(such approval not to be unreasonably withheld or delayed)
(c) Without prejudice to the generality of the foregoing to repair
maintain upkeep renew (if beyond economic repair) and service the lift in the
Demised Premises using the services of such reputable contractor as shall be
approved by the Landlord from time to time and to produce to the Landlord
evidence of the service agreement and maintenance inspections and repairs
carried out provided always that if the Tenant shall not maintain and regularly
service the lift the Landlord shall be entitled on not less than 14 days prior
written notice to enter upon the Demised Premises with all necessary workmen
and execute such necessary maintenance and servicing at the expense of the
Tenant in accordance with the covenants herein contained and the proper and
reasonable cost thereof shall be a debt due from the Tenant to the Landlord and
be forthwith recoverable by action
(d) To maintain and keep in a clean and tidy condition at all times the
area for Refuse Bins shown on the Plan
5. TO yield up the Demised Premises with the fixtures and additions thereto
at the expiration or sooner determination of the Term in good and substantial
repair and condition in accordance with the covenants hereinbefore contained
6. TO permit the Landlord and its agent with or without workmen and others
authorised by the Landlord at all reasonable times and upon prior written
notice (except in emergency) during the Term to enter upon and view the
condition of the Demised Premises and if any breach of covenant shall be found
upon such inspection for which the Tenant is liable the Tenant shall as soon as
is reasonably practicable commence and diligently proceed to execute all
repairs and works properly required to be done by written notice given by the
Landlord PROVIDED ALWAYS that if the Tenant shall not within two months after
service of such notice (or earlier if appropriate) commence and proceed
diligently with the execution of the repairs and works mentioned in such notice
it shall be lawful for the Landlord to enter upon the Demised Premises with all
necessary workmen and execute such repairs and works
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at the expense of the Tenant in accordance with the covenants herein contained
and the proper costs thereof shall be a debt due from the Tenant to the
Landlord and be forthwith recoverable by action
7. TO permit the Landlord and its agents and workmen and other persons
authorised by the Landlord and the tenants or occupiers of other parts of the
Development and adjoining properties belonging to the Landlord upon no less
than 48 hours prior written notice (except in emergency) to enter upon the
Demised Premises to execute repairs or alterations to the Development or such
adjoining properties causing as little inconvenience as possible to the Tenant
and its business and making good all damage thereby occasioned to the Demised
Premises to the reasonable satisfaction of the Tenant
8.1 NOT to make any structural or external alterations to the Demised Premises
nor to erect or to permit or suffer to be erected any new building on the
Demised Premises or make or permit or suffer to be made any alteration of or
addition to or external projection in front of the Demised Premises whatsoever
save that telecommunications or satellite equipment may be erected on the
exterior of the Demised Premises subject to all relevant planning consents
first being obtained and with the prior written consent of the Landlord (such
consent not to be unreasonably withheld or delayed)
8.2 NOT without the previous consent in writing of the Landlord (such consent
not to be unreasonably withheld or delayed) (and then only in accordance with
plans previously approved by the Landlord and under the supervision of and to
the reasonable satisfaction of the Landlord's surveyor) to alter the internal
layout or arrangement of the Demised Premises or to make any internal
non-structural alterations or add to or alter any new buildings or alterations
erected or made in pursuance of the consent of the Landlord given under this
clause or to cut injure or permit or suffer to be cut or injured any of the
walls or timbers of the Demised Premises or any alterations or additions
thereto or to carry out or permit or suffer to be carried out any development
within the meaning of the Planning Acts PROVIDED ALWAYS that the Tenant shall
be entitled without any consent from the Landlord to effect internal
non-structural alterations to the Demised Premises subject to:-
(aa) the Tenant giving no less than 14 days prior written notice to the
Landlord of the nature of such proposed alterations and a full description
of the proposed alterations to satisfy the Landlord prior to commencement
that the works proposed are non-structural; and
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(bb) the Tenant delivering to the Landlord in duplicate the drawings
specifications and other details of such alterations within 28 days after
their completion
9. AT all times during the Term to comply in all respects with the provisions
and requirements of the Planning Acts and all regulations or orders made
thereunder whether as to the Authorised User or otherwise and to indemnify and
keep indemnified the Landlord against all liabilities whatsoever including all
actions proceedings costs expenses claims and demands in respect thereof AND
within seven days of receipt by the Tenant (or sooner if appropriate) to
produce to the Landlord a copy of any notice order or proposal therefor made
given or issued to the Tenant or any sub-tenant by a planning authority under
or by virtue of the Planning Acts affecting or relating to the Demised Premises
and at the request and cost of the Landlord to make or join with the Landlord
in making every such objection representation or appeal against the same as the
Landlord shall deem expedient
10. NOT to use or suffer to be used the Demised Premises for any purpose other
than the Authorised User specified in the First Schedule PROVIDED ALWAYS that
the Tenant hereby acknowledges and admits that notwithstanding the foregoing
provisions the Landlord does not thereby or in any other way give or make nor
has given or made at any other time any representation or warranty that the
Authorised User is or will remain a permitted use within the provisions of the
Planning Acts nor shall any consent in writing which the Landlord may hereafter
give to any change of use be taken as including any such representation or
warranty and that notwithstanding that the Authorised User is not a permitted
use within such provisions as aforesaid the Tenant shall remain fully bound and
liable to the Landlord in respect of the obligations undertaken by the Tenant
by virtue of this Lease without any compensation recompense or relief of any
kind whatsoever
11. NOT to do or permit or suffer to be done anything whereby the policy or
policies of insurance of the Demised Premises against the Insured Risks (as
hereinafter defined) may become void or voidable or whereby the rate of premium
thereon may be increased and to repay to the Landlord all sums paid by way of
increased premiums and all expenses properly incurred by it in or about any
renewal of such policy or policies rendered necessary by a breach of this
covenant (all of which payments shall be included in the rent herein reserved)
and to comply with all recommendations of the insurers as to fire precautions
12. NOT to do or permit or suffer to be done anything in or upon the Demised
Premises or any part thereof which may be or become a nuisance annoyance or
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damage to the Landlord or the tenants or occupiers of the remainder of the
Development or of other property in the neighbourhood
13. NOT to exhibit or permit or suffer to be exhibited on any part of the
exterior of the Development and the Demised Premises or in the windows or on the
external walls rails or fences thereof any placard poster signboard fascia board
or fascia sign or other advertisement PROVIDED ALWAYS that the Tenant may with
the prior written consent of the Landlord (such consent not to be unreasonably
withheld or delayed) erect on the exterior of the Demised Premises a sign of a
size approved by the Landlord consistent with the size of other tenants' signs
at the Development specifying the name and nature of the Tenant's business
14. TO comply as soon as reasonably practicable at the Tenant's own expense
with any nuisance sanitary or other statutory notices lawfully served by any
local or public authority upon either the Landlord or the Tenant so far as the
same relate to the Tenant's use or occupation of the Demised Premises and to
comply with all the requirements of the Office Shops and Railway Premises Act
1963 and the Fire Precautions Xxx 0000 and any Act or Acts for the time being
amending or replacing the same and to keep the Landlord fully indemnified
against all actions proceedings costs expenses claims and demands in respect
thereof incurred by the Landlord or for which the Landlord is responsible
15. IN connection with the Defective Premises Xxx 0000 or any legislation
modifying amending or replacing the same to:-
(a) notify the Landlord in writing immediately of any defect in the
Demised Premises of which the Tenant is aware
(b) erect and maintain within the Demised Premises prominent notices of
warning of relevant defects within the meaning of Section 4 of the said Act
in such form as the Landlord may from time to time reasonably require
(c) indemnify the Landlord against any actions proceedings costs expenses
claims and demands incurred thereunder by reason of the Tenant's failure to
erect and display such notices
(d) permit the Landlord and its agent with or without workmen and others
at any time on reasonable prior written notice (save in case of emergency)
to enter upon the Demised Premises erect and exhibit notices thereon giving
warning of relevant defects within the meaning of the said Section 4 in the
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Demised Premises and to install lighting or any other reasonable means of
warning or protection against such defects
16. NOT to hold or permit or suffer to be held any sale by auction on the
Demised Premises
17. (a) NOT to assign charge or part with possession of part only (as
distinct from the whole) of the Demised Premises nor share possession or
occupation of the whole of the Demised Premises whatsoever nor to create more
than a total of three separate underlettings of the Demised Premises at any one
time each of which underlettings must consist of the whole of one or more
floors of the Demised Premises and so that for the avoidance of doubt there
should at no time be more than three separate occupations within the Demised
Premises including the occupation of the Tenant and subject in all such cases
to compliance with the provisions in this clause (any sublet part of the Demised
Premises hereinafter referred to in this clause is hereinafter referred to as
"a permitted part")
(b) Not to assign underlet or part with possession of the whole of the
Demised Premises for all or any part of the said term except by an assignment
or underletting permitted under the provisions of this clause nor to assign
underlet or permit the occupation of the Demised Premises or any part thereof
by or the vesting of any interest or estate therein in any person firm company
or other body or entity which has the right to claim diplomatic immunity or
exemption in relation to the observance and performance of the covenants and
conditions of and contained in this Lease
(c) Not to assign the whole of the Demised Premises without first
obtaining the prior written consent of the Landlord (which subject to compliance
with the provisions of this clause shall not be unreasonably withheld or
delayed) and the Landlord and the Tenant hereby agree that for the purposes of
section 19(1A) of the Landlord and the Xxxxxx Xxx 0000 the Landlord may
(without prejudice to the right of the Landlord to refuse consent on any other
reasonable ground) withhold consent to an assignment:
(i) If any of the following circumstances exist at the date of the
application for consent:
(A) There is in the reasonable opinion of the Landlord a substantial
breach of any of the Tenant's covenants in this Lease
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(B) The proposed assignee is not an Acceptable Assignee and for the
purposes of this paragraph an Acceptable Assignee shall in the case of
an individual or individuals be a person or persons who in the
reasonable opinion of the Landlord will be (1) a respectable and
responsible tenant (2) of sound financial standing and capable of
performing the Tenant's covenants in this Lease throughout the residue
of the Term and (3) is demonstrably capable of performing the Tenant's
covenants in this Lease throughout the residue of the Term AND in the
case of a limited or public liability company shall be a company which
in the reasonable opinion of the Landlord will be (1) a respectable
and responsible tenant (2) of sound financial standing and capable of
performing the Tenant's covenants in this Lease throughout the residue
of the Term and
(C) In the reasonable opinion of the Landlord the effect of the
proposed assignment would be to diminish or adversely affect the value
of the Landlord's interest in the Demised Premises on the assumption
(whether or not a fact) that the Landlord wished to sell its interest
on the day following completion of the proposed assignment
(ii) If the Landlord reasonably requires any one of the following
conditions to be complied with and which is not satisfied:
(A) On or before completion of any assignment the Tenant shall have
entered into an authorized guarantee agreement as defined in clause 16
of the Landlord and Tenant (Covenants) Act of 1995 in the form set out
in the Tenth Schedule hereto
(B) On or before completion of the assignment to it the assignee
shall have deposited with the Landlord an amount equal to the yearly
rent for six months payable at the date of the assignment as security
for the performance of the Tenant's covenants in this Lease and
entered into a deed in the form set out in the Eighth Schedule hereto
(C) On or before completion of the assignment if the Landlord shall
reasonably so require the assignee shall have procured an acceptable
guarantor or guarantors who shall execute and deliver to the Landlord
a deed containing direct covenants by such guarantor (or if more than
one such guarantor joint and several covenants) with the Landlord in
the form of those set out in the Seventh Schedule hereto
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(d) Not to underlet the whole or a permitted part of the Demised Premises
without:-
(i) obtaining the prior written consent of the Landlord (such consent not
to be unreasonably delayed or withheld subject as hereinafter provided)
(ii) procuring that any underlease to be granted hereunder shall
(A) be granted without a fine or premium and at a rent not less than
the rent specified herein (including any rent revision as provided for
herein) or the then open market value of the Demised Premises or a due
proportion thereof in the case of an underletting of a permitted part
(whichever shall be the higher)
(B) contain provisions for rent review in an upward direction only at
such times as to coincide with the rent reviews provided for in this
Lease
(C) contain a condition for re-entry on breach of any covenant by the
undertenant
(D) contain a covenant by the undertenant to perform and observe all
the Tenant's covenants and the other provision contained in this Lease
(other than the payment of the rents reserved in this Lease) or
(E) be in a form previously approved by the Landlord such approval not
to be unreasonably withheld or delayed and
(F) exclude the provisions of sections 24 to 28 of the Landlord &
Xxxxxx Xxx 0000 and a copy of the Court Order provided to the Landlord
(iii) obtaining from the underlessee covenants with the Tenant (which
covenants the Tenant hereby covenants to enforce) not to assign transfer
mortgage or charge the whole of the Demised Premises without the Landlord's
consent subject to the provisions of clause 13(b) herein being complied with in
relation to any assignment and the Tenant having procured direct covenants from
such assignee with the Landlord on the same terms as are contained in paragraph
(v) of this clause
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(iv) obtaining from the underlessee a covenant not to further underlet the
whole or any part of the Demised Premises or a permitted part or assign
mortgage charge or share possession or occupation of any part of the
Demised Premises and
(v) obtaining a direct covenant by the underlessee with the Landlord to
perform and observe all the Tenant's covenants and the other provisions
contained in this Lease (other than the payment of the rent reserved in
this Lease) and the proposed underlease
(vi) if the Landlord shall reasonably so require the Tenant procuring an
acceptable guarantor for any person to whom the Demised Premises are to be
underlet who shall execute and deliver to the Landlord a deed containing
direct covenants by such guarantor (or if more than one such guarantor
joint and several covenants) with the Landlord in such terms as the
Landlord shall reasonably stipulate PROVIDED THAT the requirement for a
guarantor shall only apply in the case of an underletting for a term
exceeding three years
(e) to enforce the performance and observance by any such undertenant of
the covenants provisions and conditions of any underlease and not at anytime
knowingly to waive any breach of the same
(f) not to vary the terms of any permitted underlease or agree so to do
without the prior written consent of the Landlord (such consent not to be
unreasonably withheld or delayed)
(g) to procure that the rents reserved by any permitted underlease shall
not be commuted or payable more than one quarter in advance and not to permit
the reduction of any rents reserved by any such underlease
(h) not to agree any rent review under such underlease without first
obtaining the written consent of the Landlord (such consent not to be
unreasonably withheld or delayed)
(i) nothing in this clause 2(17) shall prevent the Tenant from sharing
occupation of the whole or any part of the Demised Premises with any company
which is in the same group as the Tenant (as defined by the Landlord & Tenant
Act 1954) PROVIDED THAT no relationship of landlord and tenant shall be created
or be deemed to exist between such company and the Tenant and the right of any
company to share possession of the Demised Premises or any part or parts thereof
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as aforesaid shall forthwith determine upon such company ceasing to be part of
the same group or upon the Tenant ceasing to be in occupation of the Demised
Premises or upon the determination of this Lease (howsoever determined)
whichever shall be the earliest
(j) within 21 days of the death during the Term of this Lease of any
person who has or shall have guaranteed to the Landlord the payment to the
Landlord of the rents and the observance and performance of the covenants on
the part of the Tenant herein contained or a person or body (as the case may
be) who has guaranteed to the Landlord as mention in sub-clause (d)(vi) herein
being adjudged a bankrupt or (being a company) going into liquidation (other
than a voluntary liquidation for the purposes of amalgamation or reconstruction
of a solvent company) in respect of which the Landlord's consent has first been
obtained (such consent not to be unreasonably withheld or delayed) or a
receiver administrator administrative receiver or other encumbrancer taking
possession of or being appointed in respect of the whole or any part of such
person's or body's assets at the Demised Premises or such person or body making
any arrangement with creditors for the liquidation of his or its debts by
composition or otherwise or any voluntary arrangement as defined in the
Insolvency Xxx 0000 or ceasing or threatening to cease to carry on his or its
business as a whole or becoming unable to pay its debts within the meaning of
Section 123 of the Insolvency Xxx 0000 THEN in each such case to give notice
thereof to the Landlord and if reasonably so required by the Landlord at the
expense of the Tenant within a further 6 weeks to procure some other person
reasonably acceptable to the Landlord to execute a guarantee in respect of the
payment of the rent and the observance and performance of the covenants in such
form as the Landlord may reasonably stipulate
18. WITHIN one month after the execution of any assignment assent transfer
charge or underlease or assignment of an underlease of or relating to the
Demised Premises to give notice thereof in writing with particulars thereof to
the solicitors for the time being of the Landlord and to produce to them a
certified copy of the deed evidencing such dealing or transmission (and in case
of a devolution of the interest of the Tenant not perfected by an assent within
six months of the happening thereof to produce to the said solicitors the grant
of representation under which such devolution arises) and to pay to them a
registration fee of TWENTY-FIVE POUNDS (pound sterling 25.00) together with
Value Added Tax thereon (or such other sum as the said solicitors may
reasonably require) in respect of each such dealing or transmission together
with such fees as may be payable to any Superior Landlord
19. (a) TO permit the Landlord during the three months immediately
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preceding the determination of this Lease to affix and retain without
interference upon any suitable part of the Demised Premises (but not so as to
materially affect the access of light or air to the Demised premises) a notice
for reletting the same and to permit persons with written authority from the
Landlord or its agent at all reasonable times in day time and by not less than
48 hours prior written notice to view the Demised Premises
(b) In the even of the Landlord wishing to sell or otherwise deal with
the reversion at any time during the said term to permit persons with written
authority from the Landlord or the Landlord's Agent at reasonable times in day
time and by no less than 48 hours prior written notice to view the Demised
Premises and to permit the Landlord to affix "For Sale" notices in a similar
manner as the notices referred to in the preceding sub-clause (19a)
20. TO pay to the Landlord all reasonable and properly incurred costs charges
and expenses (including solicitors counsels and surveyors and other professional
costs and fees and bailiffs costs charges expenses and commission) which may be
charged or incurred by the Landlord or any Superior Landlord:
(a) in any application by the Tenant to any planning authority or any
application by the Tenant to the Landlord for any consent pursuant to the
covenants herein contained
(b) in any proceedings under Section 146 or 147 of the Law of Property Xxx
0000 or the preparation or service of notice thereunder (notwithstanding
forfeiture is avoided otherwise than by relief granted by the Court) or for
the preparation and service of and negotiations consequent upon a Schedule
of Dilapidations served at any time during or within one month after the
expiry of the Term
(c) in connection with the recovery of any arrears of rent and monies
payable and recoverable as rent hereunder
(d) in connection with the enforcement of any of the Tenant's covenants
herein contained
AND to keep the Landlord fully indemnified against all actions proceedings
reasonably taken and reasonable costs expenses claims and demands whatsoever in
respect of all or any of the said applications consents notices negotiations
and proceedings PROVIDED ALWAYS that whenever in this Lease the consent or
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license of the Landlord is required in any matter then the Landlord shall be
entitled to withhold its consent or license unless and until it has obtained
the consent of any Superior Landlord
21. NOT knowingly to allow any encroachment to be made or easement acquired on
or over the Demised Premises and in particular not to allow the right of access
of light from or over the Demised Premises to any neighboring property to be
acquired and if any encroachment or easement shall be made or threatened to be
made or if any window or opening shall be opened or made or threatened to be
opened or made in any neighboring property which if not obstructed might by
lapse of time confer the right to such access of light on the owner of any
neighboring property to give notice thereof to the Landlord and to permit it
and its servants to enter the Demised Premises and to do all such things as may
be proper for the purpose of preventing the making of such encroachment or the
acquisition of such easement or right to light
22. TO reimburse the Landlord upon demand the cost of periodic valuations or
assessments of the cost of reinstatement of the Demised Premises for insurance
purposes provided that the Tenant shall be liable to pay such costs no more
than once every two years of the Term
23. (a) IN the event that Value Added Tax shall be chargeable on the Landlord
in respect of any supplies made to the Tenant the Tenant shall in addition to
any amounts otherwise payable pay the Landlord the amount of the Value Added
Tax so chargeable payable on the later of the date of supply and the date of
delivery to the Tenant of a VAT invoice and further in the event of the
Landlord electing at any time during the Term to waive exemption from Value
Added Tax in respect of the Demised Premises to pay the amount of Value Added
Tax chargeable on the rents hereby reserved and on the Interim Charge and the
Service Charge as defined in the Sixth Schedule as a result of such election
having been made and all or any of such payments shall be made by way of rent
(b) The Tenant shall indemnify and keep indemnified the Landlord against
all losses costs claims demands and liabilities which the Landlord may suffer or
incur as a result of the Tenant's inability to recover Value Added Tax in full
including in particular any liability on the part of the Landlord to repay any
sum or sums to HM Customs & Excise or any inability of the Landlord to recover
in full as input tax any Value Added Tax paid by it to a third party
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(c) The Tenant shall inform the Landlord at any time where the
Tenant becomes an entity which is not a taxable entity for the purposes of the
Value Added Tax Xxx 0000 or if the rate at which the Tenant is able to recover
Value Added Tax (in respect of supplies made from the Demised Premises or
generally) altering such as to permit or prevent (as the case may be) any
election made or which might be made by the Landlord under paragraph 2 of
Schedule 10 of the Value Added Tax Xxx 0000 applying to the grant of this Lease
or to the supplies made to the Tenant under this Lease
24. (a) IF the rent hereby reserved or any part thereof or any other
sum payable by the Tenant to the Landlord pursuant to the provisions of this
Lease shall not have been paid upon the date whereon payment of the same was due
then the Tenant shall pay to the Landlord interest upon such rent or other sum
at the Prescribed Rate until the said rent or other sum shall have been paid
(b) By "Prescribed Rate" is meant Four per centum (4%) over the
base rate published from time to time of National Westminster Bank plc or if
the same shall cease to exist or publish a base rate during the Term of such
other London Clearing Bank as the Landlord may nominate
(c) Interest payable by the Tenant pursuant to this sub-clause
shall be calculated from day to day
(d) Interest payable by the Tenant upon arrears of rent shall not
itself be deemed to be rent
25. NOT to use the Car Parking Spaces for any purposes whatsoever other than
(i) for loading and unloading or (ii) to park thereon no more than six
roadworthy vehicles and to keep the Car Parking Spaces clean and tidy at all
times
26. NOT to cause or permit any obstruction of any of the common accessways
within the Development
27. TO comply with all the Landlord's covenants in the Second Floor Lease
except insofar as such covenants are the responsibility of the Landlord in this
Lease and to keep the Landlord indemnified in respect of any claims in respect
of any breach of this covenant
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THE FOURTH SCHEDULE
The Covenants of the Landlord
1. THAT the Tenant paying the rents hereby reserved and observing and
performing the several covenants and stipulations herein on its part contained
shall peaceably hold and enjoy the Demised Premises during the Term without any
lawful interruption by the Landlord or any person rightfully claiming under or
in trust for it
2. TO maintain repair amend renew cleanse repaint and redecorate as and when
the Landlord reasonably thinks fit and otherwise keep in good and tenantable
condition
(a) the boundary walls and fences of and in the curtilage of the
Development
(b) the Access Road and the Common Parts of the Development
(c) the Car Parking Spaces
PROVIDED THAT the Landlord shall not be liable to the Tenant for any defect or
want of repair hereinbefore mentioned unless the Landlord has had notice
thereof nor in respect of any obligations hereunder that is within the ambit of
any of the Tenant's covenants hereinbefore contained.
3. TO maintain in good working order and repair all Conduits in under and
upon the Development and which shall serve the Demised Premises (excluding
nevertheless any which exclusively serve the Demised Premises)
4. SO far as possible and subject always as provided in Clause 7 of the Fifth
Schedule to perform the following services:
(a) to keep the Common Parts of the Development clean and tidy
(b) to supply maintain repair and renew as need be such alarms and
firefighting equipment in the Common Parts of the Development as the
Landlord may reasonably consider necessary or as may be required to be
supplied and maintained by the Landlord by statute or by the fire authority
for the district
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(c) to supply provide purchase maintain renew replace repair and
keep in good and serviceable order and condition all appurtenances
appointments fixtures and fittings bins receptacles tools appliances
materials and other things which the Landlord may reasonably in the
interests of good estate management deem necessary for the maintenance
upkeep or cleanliness of the Development
(d) to employ such staff as the Landlord may at its discretion reasonably
deem necessary to enable the Landlord to carry out or maintain the said
services or any of them and for the general conduct management and security
of the Common Parts of the Development.
PROVIDED ALWAYS that the Landlord may at the Landlord's discretion add to
extend vary or alter the rendering of the said services or any of them from
time to time if the Landlord shall reasonably deem it desirable so to do for the
more convenient or efficient conduct and management of the Development.
5. TO insure and keep insured in the full reinstatement value the Demised
Premises and the Common Parts of the Development and the Landlord's fixtures
therein against loss or damage by fire lightning explosion aircraft (or
other aerial device) or articles dropped therefrom riot civil commotion
malicious person earthquake storm tempest flood bursting and overflowing
of water pipes tanks and other apparatus impact by road vehicles and such
other risks as the Landlord may deem desirable or expedient including loss of
rent hereunder for up to four years and architects' and surveyors' fees and
demolition and clearance and similar expenses ("the Insured Risks") in some
insurance office or with underwriters of repute in the full rebuilding value
thereof or such greater sum as required by the Tenant and upon request by the
Tenant the Landlord shall supply the Tenant no more than once in any year with
a copy of the then current insurance schedule and shall procure that the
interest of the Tenant is noted on the policy and to produce to the Tenant a
copy of such policy and of the annual premium receipt and in case of
destruction or of damage to the Demised Premises or the Common Parts of the
Development or any part thereof from any cause covered by such insurance to lay
out all monies received in respect of such insurance (other than monies
received for loss of rent and architects' and surveyors' fees and for
demolition and clearance expenses) in rebuilding and reinstating the same as
soon as reasonably practicable PROVIDED ALWAYS that if such rebuilding or
reinstating be prevented or frustrated all such insurance monies (other than as
aforesaid) shall be retained by the Landlord and this Lease shall thereupon
determine
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6. TO bear pay and discharge all existing and future rates (including water
rates) taxes duties assessments charges impositions and outgoings whatsoever
assessed charged and imposed upon the Common Parts of the Development
THE FIFTH SCHEDULE
Proviso Agreements and Declarations
1.1 AT any time after any of the following events shall happen the Landlord
may re-enter upon all or any parts of the Demised Premises:
1.1.1 the whole or any part of the rent shall be unpaid for twenty one
days after becoming payable whether formally demanded or not or
1.1.2 there shall be any breach of any of the Tenant's covenants or
1.1.3 the Tenant or any surety for the Tenant (being a company) shall
enter into liquidation whether compulsory or voluntary (save for the
liquidation of a solvent company for the purpose of amalgamation or
reconstruction) or suffers an administrative receiver to be appointed or
enters into a voluntary arrangement as defined in Section 1 of the
Insolvency Act of 1986 or does or suffers anything which would entitle a
receiver to take possession of any of its assets or does or suffers
anything which would entitle any person to present a petition for winding
up or apply for an administration order to cease to exist or is dissolved
or
1.1.4 the Tenant or any surety for the Tenant (being an individual) shall
be unable to pay a debt or have no reasonable prospect of being able to
pay a debt within the meaning of Section 268 of the Insolvency Xxx 0000
or makes an application to the Court for an interim order under Section
253 of the Insolvency Xxx 0000 or does anything which would entitle a
petition for a bankruptcy order to be made or makes any assignment for the
benefit of or enters into any arrangement with his creditors either by
composition or otherwise PROVIDED ALWAYS that if any of the events in
paragraphs 1.1.3 or 1.1.4 shall occur to a surety of the Tenant rather
than the Tenant or if the Surety shall die then the Landlord may not
re-enter under paragraph 1.1 for a period of two months thereafter
PROVIDED FURTHER that if the Tenant within such period shall provide the
Landlord with an alternative
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surety reasonably acceptable to the Landlord or a security deposit for
rent equivalent to six months value of the then passing rent such deposit
to be in the form of the Ninth Schedule hereto the Landlord shall not be
entitled to re-enter the Demised Premises because of such an event having
occurred to a surety
1.2 If the Landlord shall re-enter in accordance with Clause 1.1 of this
Schedule then this Lease shall thereupon terminate but without prejudice to any
right of action or remedy of the Landlord in respect of any breach
non-observance or non-performance of any of the Tenant's covenants or the
conditions herein contained
2.1 IN case the Demised Premises or any part thereof of any necessary access
thereto shall at any time during the Term be so damaged or destroyed by the
Insured Risks so as to be unfit for occupation and use then (unless the
insurance money shall be wholly or partially irrecoverable by reason solely or
in part of any act or default of the Tenant) (or where such loss of insurance
proceeds does occur the Tenant promptly on demand makes good that shortfall)
the rent hereby reserved including any service rent and insurance rent or a
fair proportion thereof according to the nature and extent of the damage
sustained shall be suspended for the period for which loss of rent insurance is
maintained under Clause 5 of the Fourth Schedule or if earlier until the
Demised Premises shall again be rendered fit for occupation and use and any
dispute with reference to this proviso shall be determined by the Landlord's
Surveyor whose decision shall be final and binding on the parties hereto
2.2 PROVIDED THAT if the Demised Premises shall be destroyed or damaged by any
of the Insured Risks so as to become unfit for occupation and use and the
damage is not made good within the period in respect of which loss-of-rent
insurance cover is effected then the Tenant or the Landlord may on the
expiration of such period by written notice given to the other elect to
determine this Lease and upon the service of such notice (PROVIDED ALWAYS that
in the case of notice given by the Tenant to the Landlord there is no material
subsisting breach of the Tenant's covenants hereunder) this Lease shall
forthwith determine and the parties hereto shall forthwith be released from all
and singular their further duties and obligations hereunder but without
prejudice to the rights of either party in respect of any antecedent breach of
any of the covenants herein contained
3. IT is hereby agreed between the Landlord and the Tenant that the
provisions for compensation contained in Section 37 of the Landlord and Tenant
Act of 1954 shall not apply to this Lease except in the events specified in
Section 38(2) of that Act
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4. THIS Lease shall incorporate the regulations as to notices contained in
Section 196 of the Law of Property Xxx 0000 as amended by the Recorded Delivery
Service Xxx 0000.
5. THE expression "the Planning Acts" shall in this Lease include any Act or
Acts for the time being in force amending or replacing the Town and Country
Planning Xxx 0000 the Planning (Listed Buildings and Conservation Areas) Xxx
0000 the Listed Xxxxxxxxx Xxx 0000 and the Planning (Consequential Provisions)
Xxx 0000 and any other legislation of a similar nature and any statutory
modification or reenactment thereof for the time being in force and any orders
instruments plans rules regulations permissions consents and directives made
under or in pursuance of the said Acts or any of them
6. ANY reference to a statute (whether specifically named or not) shall
include any amendment or re-enactment of it for the time being in force and all
instruments orders notices regulations directions bye-laws permissions and
plans for the time being made issued or given under it or deriving validity
from it
7. NOTWITHSTANDING anything herein contained the Landlord shall not be liable
to the Tenant nor shall the Tenant have any claim against the Landlord in
respect of:-
(a) any interruption in any of the services hereinbefore mentioned by
reason of necessary repair or maintenance of any installations or
apparatus or damage thereto or destruction thereof by fire water act of
god or other cause beyond the Landlord's control or by reason of
mechanical or other defect or breakdown or frost or other inclement
conditions or unavoidable shortage of fuel materials water or labour or
(b) any act omission or negligence of any xxxxxx attendant or other
servant of the Landlord in or about the performance or purported
performance of any duty relating to the provision of the said services or
any of them
THE SIXTH SCHEDULE
The Service Charge
1. THE Service Charge hereinbefore made payable means 29.48 per centum of
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the Annual Service Cost (as hereinafter defined) in respect of each calendar
year running from the 1st day of January and ending on the 31st day of December
next following or such other period as the Landlord may determine ("the
Accounting Period") SAVE THAT in respect of any part of the Annual Service Cost
as under paragraph 3(a) to (g) of this Schedule relates directly to the Access
Road and the Car Parking Spaces and the area edged yellow on Plan B the Service
Charge means 55.36% of such part of the Annual Service Cost as so relates and
further in respect of any part of the Annual Service Cost which relates
directly to costs incurred in complying with the Landlord's insurance
obligations hereinbefore contained in paragraph 5 of the Fourth Schedule (other
than so far as the same relates to the Common Parts of the Development) the
Service Charge means 100% PROVIDED ALWAYS that for the period ending on 8th
November 1997 the Tenant shall not be required to pay any greater sum for that
period than calculated at the rate of pounds sterling 1.25 per square foot for
the Demised Premises.
2. THE Interim Charge hereinbefore made payable means such sum to be paid on
account of the Service Charge in respect of each Accounting Period as the
Landlord shall specify to be a fair and reasonable payment. The first payment
of the Interim Charge (on account of the Service Charge for the Accounting
Period during which this Lease is executed) shall be made on the execution
hereof and thereafter shall be by equal payments in advance on the twenty
fourth day of June and the Twenty fifth day of December in each year and in
case of default shall be recoverable as rent in arrear
3. THE Annual Service Cost in each Accounting Period shall be the aggregate
of the sums actually expended or liabilities incurred by the Landlord in
connection with the following matters:-
(a) the cost of the observance and performance of the covenants on the
part of the Landlord hereinbefore contained in paragraphs 2 3 4 5 and 6 of
the Fourth Schedule
(b) the reasonable fees charges and expenses payable to any qualified
person whom the Landlord may reasonably employ to inspect repair and keep
in running order the alarm systems including the Landlord's costs from
time to time incurred in entering into a contract or contracts in usual
form with any such qualified persons
(c) the reasonable costs of taking out and maintaining in force an
effective insurance policy or policies against any and every liability of
the Landlord
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for injury to or death of any person (including every agent servant and
xxxxxxx of the Landlord) and damage to or destruction of the property of
any such person arising out of the management and/or maintenance of the
Common Parts of the Development and in particular but without prejudice to
the generality of the foregoing the cost of insurance against such injury
death damage or destructoin as aforesaid due to the act neglect default or
misconduct of any agent servant or xxxxxxx of the Landlord employed in
connection with the management and/or maintenance of the Common Parts of
the Development
(d) in addition to the wages from time to time payable by the Landlord the
employers National Insurance and Industrial Injuries Contributions and any
taxes or similar levies from time to time payable by the employer in
respect of all agents servants and workmen employed by the Landlord solely
in connection with the performance and observance of any of the covenants
on its part herein contained
(e) the reasonable cost of the carrying out of other work or services of
any kind whatsoever which the Landlord may reasonably consider desirable
for the purpose of maintaining or improving serves in the Development
(f) all reasonable fees and expenses payable to any person firm or company
whom the Landlord may from time to time reasonably employ in connection
with the management and/or maintenance of the Common Parts of the
Development including the cost of preparing statements of the Annual
Service Cost and including legal costs incurred relating to the management
and maintenance of the Development and in the collection of service charges
and rent
(g) the cost of complying with all statutory requirements regulations or
requirements of any competent local or other authority relating to the
Common Parts of the Development
4. THE Landlord shall be entitled to make such reasonable provision for a
reserve for anticipated future expenditure to be incurred in the performance of
the covenants on the part of the Landlord contained herein as the Landlord may
reasonably deem appropriate and the amounts so provided shall form part of the
Annual Service Cost
5. THE Landlord will use its best endeavours to maintain the Annual Service
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Cost at the lowest reasonable figure consistent with due performance and
observance of its obligations hereunder but the Tenant shall not be entitled to
object to any items comprised therein by the reason only that the materials
work or service in question might have been provided or performed at a lower
cost
6. AS soon as practicable after the end of each Accounting Period the
Landlord will submit to the Tenant an itemised statement certified by the
Managing Agents for the time being to the Landlord containing the following
information:-
(a) the amount of the Annual Service Cost
(b) the amount of the Interim Charge paid by the Tenant in respect of that
Accounting Period together with any surplus carried forward from the
previous Accounting Period
(c) the amount of the Service Charge in respect of that Accounting Period
and of any excess or deficiency of the Service Charge over the
Interim Charge
7. THE Tenant shall be entitled within twenty-eight days of the receipt of
such statement to inspect the vouchers and receipts for all items included in
such statement
8. IF the Interim Charge paid by the Tenant in respect of any Accounting
Period exceeds the Service Charge for that period the surplus of the Interim
Charge so paid over the above the Service Charge shall be carried forward by
the Landlord and credited to the account of the Tenant in computing the Service
Charge in succeeding Accounting Periods as hereinbefore provided except in
respect of the final year of the Term (howsoever determined) when any such
overpayment by the Tenant shall be repaid to the Tenant within 21 days of the
issue of the aforementioned statement subject to the right of the Landlord to
set off such sum against any sums due by the Tenant under its covenants herein
9. IF the Service Charge in respect of any Accounting Period exceeds the
Interim Charge paid by the Tenant in respect of that Accounting Period together
with any surplus from previous years carried forward as aforesaid then the
Tenant shall pay the excess to the Landlord within twenty-one days of service
upon the Tenant of the statement referred to above and in case of default the
same shall be recoverable from the Tenant as rent in arrear
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THE SEVENTH SCHEDULE
The Covenant of the Surety
1. THE Surety in consideration of the demise hereinbefore contained having
been made at his request HEREBY COVENANTS with the Landlord that the Tenant
will throughout the Term hereby created or any extension or continuation
thereof under Section 24 of the Landlord and Xxxxxx Xxx 0000 or any statutory
modification thereof for the time being in force or otherwise by statute or
common law pay the said rents hereby reserved or subsequently increased on the
days and in manner aforesaid and will perform and observe all the Tenant's
covenants hereinbefore contained and that in case of default in such payment of
rents or in the performance or observance of such covenants as aforesaid the
Surety will pay and make good to the Landlord on demand all losses damages
costs and expenses thereby arising or incurred by the Landlord
notwithstanding:-
(a) any neglect or forbearance of the Landlord in endeavouring to
obtain payment or to enforce performance of the several
stipulations herein on the Tenant's part contained (and any time
which may be given to the Tenant by the Landlord shall not
release or exonerate or in any way affect the liability of the
Surety under this covenant)
(b) that the terms of this Lease have been varied by agreement
between the Landlord and the Tenant where such variation is
immaterial and not prejudicial to the Surety
(c) any other act or thing whereby but for this provision the Surety
would have been released
2. IF a liquidator or trustee in bankruptcy shall disclaim this Lease and
if the Landlord shall by notice in writing have to required the Surety will
take from the Landlord a lease of the Demised Premises for a term commensurate
with the residue of the Term which would have remained had there been no
disclaimer at the same rent and subject to substantially the same covenants and
conditions as are reserved by and contained in this Lease such lease to take
effect from the date of such disclaimer and in such case the surety shall
without delay take or join in all acts necessary for the grant of such new
lease and will pay all reasonable and proper costs relating to the grant of such
new lease and execute and deliver to the Landlord a counterpart thereof
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3. IF the Landlord shall not require the Surety to take a lease of the
Demised Premises pursuant to Clause 2 above the Surety shall nevertheless upon
demand pay to the Landlord a sum equal to the rent that would have been payable
under this Lease but for the disclaimer or other event putting an end to the
effect of the Lease in respect of that period from the date of the said
disclaimer or the Lease ceasing to have effect as aforesaid until the
expiration of three months therefrom or until the Demised Premises shall have
been relet by the Landlord whichever shall first occur
THE EIGHTH SCHEDULE
Form of Rent Deposit Deed
THIS DEED is made the day of 199
BETWEEN:-
(1) THE Landlord (which expression shall mean only the person for the time
being in whom the reversion immediately expectant upon the determination of the
Lease is vested) who is currently [ ]
(2) THE Tenant (which expression shall mean only the person in whom the
benefit of the term of the Lease is vested) who is currently [ ]
SUPPLEMENTAL TO -
A Lease ("the Lease") date the day of 199 and made between
MARLDOWN LIMITED of the first part
of the second part and of the third
part relating to the premises known as
NOW THIS DEED WITNESSETH as follows:
1.1 "The Initial Deposit" shall mean a sum equivalent to one half of the
annual rent payable at the date hereof or such greater sum as shall represent
one half of the annual rent from time to time reserved under the Lease
(excluding any rent-free period)
1.2 "The Deposit Account" means the interest earning deposit account opened by
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the Landlord's Solicitors (as hereinafter defined) at one of the London Clearing
Banks ("the Bank") on or before the date of this Deed and in which the
Landlord's Solicitors shall place the Initial Deposit
1.3 "The Deposit Balance" means the amount from time to time standing to the
credit of the Deposit Account
2. The Landlord and the Tenant irrevocably instruct the Landlord's Solicitors
("the Landlord's Solicitors") by this Deed to act as stakeholders the operation
of the Deposit Account in accordance with this Deed and in particular to act in
accordance with this Deed in:
2.1 the making of payments into the Deposit Account
2.2 the withdrawal of sums from the Deposit Account and
2.3 accounting to the Landlord and the Tenant for money due to either of them
from the Deposit Account
3.1 The Tenant shall on the execution hereof deposit with the Landlord's
Solicitors the Initial Deposit as security for the due performance and
observance of the covenants on the part of the Tenant contained in the Lease
without prejudice to the rights and remedies of the Landlord under the Lease
3.2 The Landlord's Solicitors are instructed to forthwith pay the Initial
Deposit into and to keep it in the Deposit Account and the Tenant may with the
Landlord's prior agreement (such agreement not to be unreasonably withheld)
authorise the Landlord's Solicitors to vary the terms of the Deposit Account
4.1 The interest which shall accrue upon the Deposit Balance shall be added to
the Deposit Balance and shall remain in the Deposit Account and shall be dealt
with as part of the Deposit Balance
4.2 The Tenant (acting on its own behalf or by its Solicitors) shall after
reasonable intervals following the date of this Deed or any payment made to the
Tenant pursuant to this Clause be entitled by notice in writing to require the
Landlord's Solicitors to draw upon the Deposit Account in payment to the Tenant
of an amount equal to the Interest which at the date of such notice has accrued
to the Deposit Balance.
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5. The Landlord shall whenever so reasonably requested by the Tenant supply
to the Tenant copies of all statements and other information relating to the
Deposit Account as the Tenant may from time to time reasonably require
6. The Tenant hereby covenants with the Landlord as follows:
6.1 Until the release of the Deposit Balance or appropriation from the
Deposit Balance under Clause 7 hereof to maintain the Deposit held by the
Landlord's Solicitors in an amount equal (excluding any interest accrued to the
Deposit) to one half of the annual rent from time to time reserved under the
Lease, and
6.2 If the rent reserved by the Lease shall be increased pursuant to the
provisions for the review of rent therein contained or if any monies shall be
appropriated from the Deposit Balance by the Landlord in the manner hereinafter
authorised under Clause 7 hereof within twenty-one days of written request from
the Landlord so to do to deposit with the Landlord's Solicitors an amount
necessary to maintain the Deposit Balance at the appropriate level
7.1 The Landlord shall be entitled at any time to require the Landlord's
Solicitors to draw from the Deposit Account in payment to the Landlord of any
amount not exceeding any sum then due to the Landlord arising out of default by
the Tenant if:
7.1.1 The Landlord shall have previously given to the Tenant not less
than fourteen days notice in writing of the Landlord's intention to
procure any withdrawal from the Deposit Account and the notice shall have
specified the default to which the withdrawal relates, and;
7.1.2 The Tenant shall not have remedied the default complained of or
commenced and be diligently proceeding to remedy the default to the
reasonable satisfaction of the Landlord by the expiration of the notice.
8. The Deposit Balance (including interest thereon) and unpaid accrued
interest thereon will be released to the Tenant by the Landlord following
whichever shall be the earlier of:
8.1 The completion of a lawful assignment of the Premises by the Tenant with
the consent of the Landlord in accordance with the terms of the Lease to an
assignee who shall (if reasonably required by the Landlord) provide an
equivalent deposit in the terms of this Deed whereupon the provisions of this
Deed shall automatically cease and determine
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8.2 The expiry or sooner determination of the Term created by the Lease
subject to the Landlord's prior right of withdrawal under Clause 7.1 hereof in
the event of any default by the Tenant whereupon the provisions of this Deed
shall automatically cease and determine
8.3 In the event that the Lease becomes vested in a company which is
registered in the United Kingdom such company providing the Landlord with its
most recent three consecutive years accounts audited by a Chartered Accountant
the most recent of which must have been approved by the directors of such
company not more than three months before such accounts are provided to the
Landlord and each set of such accounts showing net profits amounting to not
less than three times the annual rent first reserved by the Lease in the year
to which the said accounts relate whereupon the provision of this Deed shall
automatically cease and determine
9. DEALINGS WITH REVERSION
In the event of the Landlord assigning subletting or otherwise disposing of the
reversion expectant upon the termination of the Term created by the Lease it is
hereby agreed that the Landlord will procure that such persons entitled to the
reversion expectant upon the termination of the Term created by the Lease shall
enter into a new Deed of Rent Deposit and that the Tenant will at the
Landlord's cost following a written request from the Landlord so to do and upon
the monies then standing in the Deposit Account enter into a new Deed of Rent
Deposit in the same terms (mutatis mutandis) as this Deed save that the
expression "the Initial Deposit" shall mean half the yearly rent then reserved
and the term "the Landlord's Solicitors" shall mean the solicitors acting on
behalf of the part in whom the term expectant upon the determination of the
said term is vested and the Deposit Account shall be held at the Bank or such
bank as the Solicitors for the Assignee of the reversion shall reasonably
require.
10. The Tenant hereby
10.1 Acknowledges that the Landlord's right of re-entry contained in the Lease
shall be exercisable in the event of any breach by the Tenant of any of the
terms of this Deed to the intent that all covenants herein shall be deemed to
be covenants contained in the Lease
10.2 Hereby agrees to charge the Rent Deposit to the Landlord as security for
the performance of its obligations in the Lease and in this Deed
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THE NINTH SCHEDULE
Rent and Rent Review
1. DEFINITIONS
1.1 The terms defined in this paragraph shall for all purposes of this
Schedule have the meanings specified
1.2 "Review Dates" mean the 3 day of March in the year 2002 and the
penultimate day of the Term and "Review Date" means any one of the Review Dates
1.3 "Review Period" means the period between any Review Date and the day prior
to next Review Date (inclusive)
1.4 "the Assumptions" means the following assumptions at the relevant Review
Date:
1.4.1 that no work has been carried out on the Demised Premises by the
Tenant its subtenants or their predecessors in title during the Term which
has diminished the rental value of the Demised Premises other than work
carried out in compliance with paragraph 14 of the Third Schedule
1.4.2 that if the Demised Premises have been destroyed or damaged they
have been fully restored
1.4.3 that the covenants contained in this Lease on the part of the
Landlord and the Tenant have been fully performed and observed
1.4.4 that the Demised Premises are available to let by a willing landlord
to a willing tenant by one lease without a premium being paid by either
party and with vacant possession
1.4.5 that the Demised Premises are ready for and fitted out and equipped
for immediate occupation and use for the purpose or purposes required by
the willing tenant referred to in paragraph 1.4.4 and that all the
services required for such occupation and use are connected to the Demised
Premises
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1.4.6 that the Lease referred to in paragraph 1.4.4 contains the same
terms at Lease except the amount of the Initial Rent and any rent-free
period to which a new tenant may otherwise be entitled but including the
provisions for rent review on the Review Dates and at similar intervals
after the last Review Date and except as set out in paragraphs 1.4.7 and
1.4.8
1.4.7 that the term of the Lease referred to in paragraph 1.3.4 is equal
in length to a term of 10 years and that such term begins on the relevant
Review Date and that the rent shall commence to be payable from that date
and that the years during which the Tenant covenants to decorate the
Demised Premises are at similar intervals after the beginning of the term
of such Lease as those specified in this Lease
1.4.8 on the basis that the User is as permitted in this Lease
1.5 "the Disregarded Matters" means:
1.5.1 any effect on rent of the fact that the Tenant its subtenants or
their respective predecessors in title have been in occupation of the
Demised Premises
1.5.2 any goodwill attached to the Demised Premises by reason of the
carrying on at the Demised Premises of the business of the Tenant its
subtenants or their predecessors in title or other persons lawfully at the
Demised Premises in their respective businesses
1.5.3 any increase in rental value of the Demised Premises attributable to
the existence at the relevant Review Date of improvement to the Demised
Premises or any part thereof carried out otherwise than in pursuance of an
obligation to the Landlord or its predecessors in title under this Lease
1.6 "the President" means the President for the time being of the Royal
Institution of Chartered Surveyors the duly appointed deputy of the President
or any person authorised by the President to make appointments on his behalf
1.7 "the Surveyor" means a person appointed by agreement between the parties
or in the absence of agreement within 14 days of one party giving notice to the
other of its nomination or nominations nominated by the President on the
application of either party made not earlier than 6 months before the relevant
Review Date or at any time afterwards
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2. ASCERTAINING THE RENT
2.1 The Rent shall be:
2.1.1 until the first Review Date the Rent set out in clause 1 hereof
and
2.1.2 during each successive Review Period a rent equal to the
greater of:-
2.1.2.1 the Rent payable immediately prior to the relevant
Review Date or if payment of Rent has been suspended pursuant to
the proviso to that effect contained in this Lease the Rent
which would have been payable had there been no such suspension
or
2.1.2.2 such Rent as may be ascertained in accordance with
this Schedule
2.2 Such revised Rent for any Review Period may be agreed in writing at any
time between the parties or (in the absence of agreement) will be determined by
the Surveyor
2.3 The revised Rent to be determined by the Surveyor shall be such as he
shall decide to be the rent at which the Demised Premises might reasonably be
expected to be let on the open market at the relevant Review Date making the
Assumptions but disregarding the Disregarded Matters
2.4 At the sole discretion of the Landlord the Surveyor shall act either as
an expert or as an arbitrator and if the Surveyor nominated pursuant to
paragraph 1.6 shall die or decline to act the President may on the application
of either party discharge the Surveyor and appoint another in his place
2.5 Whenever the rent shall have been ascertained in accordance with this
Schedule memoranda to this effect shall be signed by or on behalf of the
parties and annexed to this Lease and its counterpart and the parties shall
bear their own costs in this respect
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3. ARRANGEMENTS PENDING ASCERTAINMENT OF REVISED RENT
3.1 If the revised Rent payable during any Review Period has not been
ascertained by the relevant Review Date Rent shall continue to be payable at
the rate previously payable such payments being on account of the Rent for that
Review Period
3.2 If one party shall upon publication of the Surveyor's award pay all the
Surveyor's fees and expenses such party shall be entitled to recover (in
default of payment within 21 days of a demand to that effect in the case of the
Landlord as Rent in arrears or in the case of the Tenant by deduction from
Rent) such proportion of them (if any) as the Surveyor shall award against the
other party
4. PAYMENT OF REVISED RENT
4.1 If the revised Rent shall be ascertained on or before the relevant Review
Date and that date is not a quarter day the Tenant shall on that Review Date
pay to the Landlord the amount by which one quarter's Rent at the rate payable
on the immediately preceding quarter day is less than one quarter's Rent at the
rate of the revised Rent apportioned on a daily basis for that part of the
quarter during which the revised Rent is payable.
4.2 If the revised Rent payable during any Review Period has not been
ascertained by the relevant Review Date then immediately after the date when
the same has been agreed between the parties or the date upon which the
Surveyor's award shall be received by one party the Tenant shall pay to the
Landlord:
4.2.1 any shortfall between the Rent which would have been paid on
the Review Date and on any subsequent quarter days had the revised
Rent been ascertained on or before the relevant Review Date and the
payments made by the Tenant on account and
4.2.2 interest at the base lending rate of the bank referred to in
or nominated pursuant to clause 2(2)(d) prevailing on the day upon
which the shortfall is paid in respect of each instalment of Rent
due on or after the Review Date on the amount by which the
instalment of revised rent which would have been paid on the
relevant Review Date or such quarter day exceeds the amount paid on
account and such interest shall be payable for the period from the
date upon which the instalment was due up to the date of payment of
the shortfall
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5. ARRANGEMENTS WHEN INCREASING RENT PREVENTED ETC
5.1 If at any of the Review Dates there shall be in force a statute which shall
prevent restrict or modify the Landlord's right to review the Rent in
accordance with this Lease and/or to recover any increase in the Rent the
Landlord shall when such restriction or modification is removed relaxed or
modified be entitled (but without prejudice to its right (if any) to recover
any Rent the payment of which has only been deferred by law) on giving not less
than one month's nor more than 3 months' notice in writing to the Tenant at any
time within 6 months of the restriction or modification being removed relaxed
or modified to invoke the provisions of paragraph 5.2
5.2 Upon the service of a notice pursuant to paragraph 5.1 the Landlord shall
be entitled:
5.2.1 to proceed with any review of the Rent which may have been prevented
or further to review the Rent in respect of any review where the Landlord's
right was restricted or modified and the date of expiry of such notice
shall be deemed for the purposes of this Lease to be a Review Date
(provided that without prejudice to the operation of this paragraph nothing
in this paragraph shall be construed as varying any subsequent Review Dates
except that the revised Rent shall nevertheless be calculated by reference
to rental values at the Review Date subjected to the rent restriction and
provided that there shall be no more than one additional rent review
between any two Review Dates
5.2.2 to recover any increase in Rent with effect from the earliest date
permitted by law
6. Time shall not be of the essence in relation to the machinery for fixing the
rent
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THE TENTH SCHEDULE
AUTHORIZED GUARANTEE AGREEMENT
THIS DEED is made the day of 19 Between
("the Lessor") and of
("the Lessee")
INTRODUCTION
(A) The term granted by the Lease is vested in the Lessee and the Lessor is
entitled to the reversion
(B) The Lease contains a covenant against assignment without the written
consent of the Lessor and provide that the consent may be given subject to a
condition that the Lessee enters into an authorized guarantee agreement (as
defined in the Act)
(C) The Lessee has requested the Lessor's consent to the assignment of the
Lease to the Assignee which the Lessor has agreed to grant subject to the
completion of this Deed pursuant to that condition
AGREED TERMS
1. In this Deed (including the introduction) the following words and
expressions shall have the following meaning:
"Act" means the Landlord & Tenant (Covenants) Xxx 0000
"Assignee" means
"Lease" means the lease of the Demised Premises dated
made between
"Demised Premises" means
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2. The Lessee hereby covenants with the Lessor as a primary obligation
(a) that the Assignee shall at all times duly pay the rents reserved by
the Lease in the manner and at the time therein specified and shall duly
perform and observe all the Lessee's covenants contained in the Lease
until such times as the Assignee shall be released from those covenants by
virtue of the Act and
(b) to indemnify the Lessor against all claims demands losses damages
liability costs fees and expenses whatsoever sustained by the Lessor by
reason of or arising in any way directly or indirectly out of any act or
default by the Assignee in the performance and observance of any of the
Lessee's covenants contained in the lease
3. None of the following or any combination thereof shall release determine
discharge or in any way lessen or affect the liability of the Lessee as
principal debtor under this Deed or otherwise prejudice or affect the right of
the Lessor to recover from the Lessee to the full extent of this guarantee:-
(a) any neglect delay or forbearance of the Lessor in endeavouring to
obtain payment of the rents or other amounts reserved by the lease or in
enforcing the performance or observance of any of the obligations of the
Assignee under the Lease
(b) any refusal by the Lessor to accept rent tended by or on behalf of
the Lessee at a time when the Lessor was entitled (or would after the
service of a notice under Section 146 of the Law of Property Xxx 0000 have
been entitled) to re-enter the Demised Premises
(c) any extension of time given by the Lessor to the Lessee or the
Assignee
(d) to the extent permitted by the Act any variation of the terms of this
Lease or the transfer of the Lessor's reversion
(e) any reviews of the rent payable under the Lease
(f) any change in the constitution structure or powers of either the
lessee any surety or the liquidation administration receivership or
bankruptcy (as the case may be) of either the Lessee or the Assignee
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(g) any legal limitation or any immunity, disability or incapacity of
the Assignee (whether or not known to the Lessor) or the fact that any
dealings with the Lessor by the Lessee may be outside or in excess of
the powers of the Assignee, or
(h) any other act, omission, matter or thing whatsoever whereby but for
this provision the Lessee would be exonerated either wholly or in part
(other than a re lease under seal given by the Lessor)
4. The Lessee hereby further covenants with the Lessor that
(i) if there should be a disclaimer or surrender of this Lease, whether
by a liquidator, trustee in bankruptcy, the Crown, or otherwise,
(ii) if this Lease shall be forfeited, or
(iii) if the Assignee (being a company) shall be dissolved or if
otherwise a corporate Lessee shall cease to exist THEN the Lessee shall,
if the Lessor by notice in writing given to the Lessee within 6 months
after such disclaimer or other event so requires accept from and execute
and deliver to the Lessor a counterpart of a new lease of the Demised
Premises for a term commencing on the date of the disclaimer or other
event and continuing for the residue then remaining unexpired of the
term, such new lease to be at the cost of the Lessee and to be at the
same rents and subject to the same covenants, conditions and provisions
as are contained in the Lease
5. This guarantee shall enure for the benefit of the successors and assigns
of the Lessor under the Lease without the necessity for any assignment thereof.
IN WITNESS whereof this agreement has been executed and delivered as a deed the
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day and year first above written
SIGNED AND DELIVERED AS A DEED )
by the aforementioned MARLDOWN )
LIMITED acting by a director and )
secretary or two directors:- )
/s/ M. D. POSEN
----------------------------------
Director M. D. Posen
/s/ M. T. HARRWON
----------------------------------
Director M. T. Harrwon
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DATED _____________________ 1997
MARLDOWN LIMITED
- and -
MICROMUSE plc
- and -
XXXXXXXXXX XXXX XXXXX
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L E A S E
relating to
Xxxxxxxxx Xxxxx, Xxxxxxxx Xxxx,
Xxxxxx XX00
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