AGREED FORM
DATED , 1999
[RELEVANT GLYNWED COMPANY] LIMITED
-and-
GLYNWED PROPERTIES LIMITED
-and-
NIAGARA LASALLE (UK) LIMITED
-and-
NIAGARA CORPORATION
------------------------------
SIDE DEED
relating to land and buildings
known as
[ ]
and lease dated [ ]
of that property
------------------------------
XXXXX & XXXXX
London
PY:485163.3
CONTENTS
CLAUSE PAGE
1. DEFINITIONS............................................................1
2. INTERPRETATION.........................................................2
3. THIS DEED..............................................................3
4. VARIATIONS.............................................................3
5. GROUP COMPANIES........................................................3
6. GUARANTEE..............................................................5
7. TERMINATION............................................................5
8. ASSIGNMENTS............................................................5
9. NO SURRENDER...........................................................6
10. GENERAL................................................................6
11. NOTICES................................................................6
12. GOVERNING LAW AND JURISDICTION.........................................7
13. REGISTRATION...........................................................7
THIS DEED is made on [ ], 1999
BETWEEN:
(1) [RELEVANT GLYNWED COMPANY] LIMITED (registered number [ ]) whose
registered office is at Headland House, New Coventry Road, Xxxxxxx,
Birmingham ("GLYNWED");
(2) GLYNWED PROPERTIES LIMITED (registered number 254047) whose
registered office is at Xxxxxxxx Xxxxx, Xxx Xxxxxxxx Xxxx, Xxxxxxx,
Xxxxxxxxxx; and
(3) NIAGARA LASALLE (UK) LIMITED (registered number 3725308) whose
registered office is at Xxxxxxxx Xxxxx, 000 Xxxxx Xxxxxx, Xxxxxx XX0X
0XX ("Niagara"); and
(4) NIAGARA CORPORATION a corporation organised and existing under the
Laws of the State of Delaware, whose principal office is at 000
Xxxxxxx Xxxxxx, Xxx Xxxx 00000, XXX (the "Guarantor".)
RECITALS
(A) This Deed is supplemental to the Lease by which the Property was
demised for the Term.
(B) Glynwed is the landlord under the Lease, Niagara is the Tenant under
the Lease and the Guarantor is the guarantor under the Lease.
(C) Glynwed Properties Limited is the beneficial owner of the Property
and has confirmed its consent to this Deed.
(D) The parties have agreed that the terms of the Lease shall be varied
in accordance with the terms of this Deed.
THIS DEED WITNESSES as follows:
2. DEFINITIONS
In this Deed:
[FOR LONG LEASEHOLD PROPERTIES ONLY - "CONSENT" means in relation to any
leasehold part of the Property the consent of any superior landlord
to the underletting of the leasehold part to Niagara Corporation and
the proposed undertenant (as joint tenants)];
"LANDLORD" means the person for the time being entitled to the reversion
immediately expectant on the determination of the Term;
"LEASE" means the lease of even date herewith and made between
Glynwed (1) Niagara (2) and the Guarantor (3) in respect of the
Property and includes all deeds and documents supplemental to it;
"LEASE RENEWAL DEED" means a deed of even dated herewith and made
between Glynwed (1), Niagara (2) and the Guarantor (3);
"OPTION DEED" means a deed of even dated herewith and made between
Glynwed (1), Niagara (2) and the Guarantor (3);
"PROPERTY" means [ ] as more particularly described in the
Lease;
"PROPERTY AGREEMENT" means an agreement between Glynwed Property
Management Limited (1), Glynwed Properties (2), Niagara LaSalle (UK)
Limited (3), Niagara Corporation (4) and Glynwed International Plc
(5);
"SALE OF BUSINESS AGREEMENT" means an agreement dated ,1999 and made
between Glynwed Steels Limited (1) Glynwed International plc (2)
Niagara LaSalle (UK) Limited (3) and Niagara Corporation (4)
including the schedules thereto;
"TENANT" means the person named as tenant in the Lease;
"TERM" means the term of years granted by the Lease.
3. INTERPRETATION
(1) Where there are two or more persons included in the expressions
"Glynwed", "Niagara" or "Guarantor" each reference to Glynwed or
Niagara or the Guarantor includes a separate reference to each of
those persons.
(2) Any reference, express or implied, to an enactment includes references
to:
(a) that enactment as amended, extended or applied by or under any
other enactment (before or after the execution of this Deed);
(b) any enactment which that enactment re-enacts (with or without
modification);
(c) any subordinate legislation made (before or after the execution
of this Deed) under that enactment, as amended, extended or
applied as described in paragraph (a) above or under any
enactment referred to in paragraph (b) above; and
(d) any consents, licences and permissions given (before or after
the execution of this Deed) under that enactment, as amended,
extended or applied as described in paragraph (a) above or
under any enactment referred to in paragraph (b) above or under
that subordinate legislation and any conditions contained in
those consents, licences and permissions.
(3) Any reference, express or implied, to enactments generally includes
subordinate legislation and any legislation of the European Union
that is directly applicable in the United Kingdom and includes
existing enactments and those that come into effect during the Term.
(4) Sub-clauses (1) to (3) above apply unless the contrary intention appears.
(5) The headings in this Deed do not affect its interpretation.
4. THIS DEED
(1) The provisions of this Deed shall only apply while the Term of the
Lease is vested in Niagara and then only during the period commencing
on the date of the Lease and ending on the day before the date of the
first transfer/assignment of the Lease by Niagara after that date or
while Niagara is a guarantor of the obligations of the Tenant in the
Lease under an authorised guarantee agreement.
(2) For the avoidance of doubt, the provisions of this Deed shall not apply
to any renewal of the Lease.
5. VARIATIONS
The provisions of the Lease shall be varied in accordance with the
provisions set out in the Schedule to this Deed [To be inserted for
all the properties except Jubilee Works and Planetary Road - provided
that if at any time the Tenant fails to insure the Property pursuant
to the insurance provisions set out in paragraph 7 of the Schedule to
this Deed the Landlord may insure the Property in accordance with the
provisions set out in the Lease in accordance with the provisions of
paragraph 7(6) of the Schedule.]
6. GROUP COMPANIES
EITHER [To be inserted for all properties except Xxxxx Xxxxxx Xxxx,
Xxxxxx and Jubilee Works]
Notwithstanding the provisions of sub-clause 7(3)(d) of the Lease, if
the Tenant wishes to assign the Lease to a company which is a member
of the same group as the Tenant (within the meaning of s-42 of the
Landlord and Tenant Act 1954) the following provisions shall apply:
(1) the Tenant shall give not less than one month's notice in
writing to the Landlord of its intention to do so, (giving
details of the proposed assignee) accompanied by a notice to
terminate the Lease pursuant to clause 12 of the Lease and
provided the two notices are served on the Landlord at the same
time, the notice period required under clause 12(1) of the
Lease shall be one month for the purpose of this clause;
(2) on the expiry of the Tenant's notice to terminate the Landlord
will grant a new lease of the Property to the group company as
notified to the Landlord pursuant to sub-clause (1), as tenant
and to the Guarantor as guarantor, on the same terms as the
Lease in all respects (excluding the duration of the term) for
the residue of the Term;
(3) on the expiry of the Tenant's notice to terminate the Landlord,
the Tenant and the Guarantor under the new lease will enter
into a new side deed, option deed and lease renewal deed in the
same form as this Deed, the Option Deed and the Lease Renewal
Deed respectively with such amendments as are necessary to
ensure that all those deeds are treated as replacing the
previous deeds and not, for example, starting any time periods
to run afresh;
(4) notwithstanding clause 7(4)(d) of the Lease, no rent deposit will
be payable on the grant of the new lease;
(5) the notice to terminate given by the Tenant pursuant to
sub-clause (1) above shall not be effective to terminate the
Lease until such time as the new lease referred to in
sub-clause (2) and the agreements referred to in sub-clause (3)
above are completed.
OR [For Lower Church Lane, Tipton and Jubilee Works only]
Notwithstanding the provisions of sub-clause 7(3)(d) of the Lease, if
the Tenant wishes to assign the Lease to a company which is in the
same group as the Tenant (within the meaning of section 42 of the
Landlord and Tenant Act 1954) the following provisions shall apply:
(1) the Tenant shall give not less than three months' notice in
writing to the Landlord of its intention to do so (giving
details of the proposed assignee) accompanied by a notice to
terminate the Lease pursuant to clause 12 of the Lease and
provided the two notices are served on the Landlord at the same
time the notice period required under clause 2(1) of the Lease
shall be 3 months for the purpose of this clause;
(2) on the expiry of the Tenant's notice to terminate the Landlord will
grant:
(a) a new lease of the Property to the group company, as
notified to the Landlord pursuant to sub-clause (1)
above, as tenant and to the Guarantor as guarantor, on
the same terms as the Lease in all respects (excluding
the duration of the term) for the residue of the Term;
(b) a new side deed, option deed and lease renewal deed in
the same form as this Deed, the Option Deed and the Lease
Renewal Deed respectively with such amendments as are
necessary to ensure that all those deeds are treated as
replacing the previous deeds and not, for example,
starting any time periods to run afresh;
provided that the Consent has been granted;
(3) if Consent has not been obtained prior to the expiry of the
Tenant's notices served pursuant to sub-clause (1) above the
notices shall be invalid and the Landlord shall not be obliged
to grant a new lease, side deed, option deed and lease renewal
deed and the Lease shall not be determined provided that if by
the expiry of the notice period under the Tenant's notices
Consent has not been formally granted but in principle approval
has been obtained from the superior landlord the notice period
shall be extended to the earlier of:
(a) the date Consent is refused in writing;
(b) the date 3 working days after Consent is granted;
(c) the date of the end of the Term under the Lease (howsoever
determined); and
(d) the date 6 months from the expiry of the notice period first
given under the Tenant's notices;
(4) notwithstanding clause 7(4)(d) of the Lease, no rent deposit will
be payable on the grant of the new lease;
(5) the Landlord shall use its reasonable endeavours to obtain the
Consent as quickly as possible and the costs of the Landlord,
any superior landlord and mortgagees of any of them (including
VAT) in connection with the application for such Consent shall
be borne by the Tenant.
7. GUARANTEE
In consideration of Glynwed entering into this Deed at the
Guarantor's request, the Guarantor guarantees to Glynwed the
obligations and liabilities of Niagara under this Deed such guarantee
to be on the same term as the guarantee provisions set out in clause
8 of the Property Agreement which is hereby incorporated into this
Deed subject to all necessary amendments to ensure that the guarantee
applies to this Deed.
8. TERMINATION
(1) This Deed shall terminate on the termination of the Lease
(through effluxion of time, forfeiture or otherwise) unless the
Tenant is granted relief from forfeiture but, notwithstanding
any such termination, the Tenant shall be under no greater
liability to the Landlord in relation to any period prior to
such termination than it would have been if the Deed had not
terminated.
(2) On the first assignment of the whole of the Property clause 4 (to
the extent of the variations set out in paragraphs 1 to 9 in the
Schedule to this Deed inclusive) and clause 5 shall cease to apply.
(3) On the second assignment of the whole of the Property clause 4
(to the extent of the variations set out in paragraphs 10 and
11 in the Schedule to this Deed) shall cease to apply.
(4) On an underletting of the whole of the Property clause 4 (to
the extent of the variations set out in paragraphs 1 to 9 in
the Schedule to this Deed inclusive) shall cease to apply.
9. ASSIGNMENTS
This Deed is not capable of assignment by Niagara and is personal to
it.
10. NO SURRENDER
This Deed is not intended to and does not effect any surrender of the
Lease or the grant of any new lease.
11. GENERAL
(1) DISPUTES
Any dispute regarding a provision of this Deed shall be determined by
a single arbitrator agreed by Glynwed and Niagara or, failing
agreement, by a single arbitrator appointed by the president or his
deputy for the time being of the Royal Institution of Chartered
Surveyors in accordance with the Arbitration Xxx 0000.
(2) JOINT AND SEVERAL LIABILITY
Where Niagara or Glynwed or the Guarantor is more than one person:
(a) those persons shall be jointly and severally responsible in
respect of every obligation undertaken by them under this Deed;
and
(b) Glynwed may release or compromise the liability of any of those
persons under this Deed or grant any time or other indulgence
without affecting the liability of any other of them.
(3) NOTICES IN WRITING
Every notice, consent, approval or direction given under this Deed
shall be in writing.
(4) COUNTERPARTS
This Deed may be executed in any number of counterparts, all of
which, taken together, shall constitute one and the same Deed and any
party may enter into this Deed by executing a counterpart.
12. NOTICES
(1) Any notice or other document to be served under this agreement
may be delivered or sent by post or facsimile process to the
party to be served as follows:
(a) to Glynwed at the address set out in this Agreement marked
for the attention of the Company Secretary;
(b) to Niagara at:
Victoria Steel Works
Xxxx Xxxx
Xxxxxx
Xxxxxxxxxx
Xxxx Xxxxxxxx XX00 0XX
marked for the attention of Xxxx Xxxxxxx;
(c) to the Guarantor at:
000 Xxxxxxx Xxxxxx
Xxx Xxxx, 00000
XXX
or at such other address as it may have notified to the other
party in accordance with this clause. Any notice or other
document sent by post shall be sent by prepaid first class
recorded delivery post (if within the United Kingdom) or by
prepaid registered airmail (if elsewhere).
(2) Any notice or other communication shall be deemed to have been
duly given:
(a) if delivered personally, when left at the address
referred to in subclause (1); or
(b) if sent by recorded mail other than airmail, two days
after posting it; or
(c) if sent by registered airmail, six days after posting it,
provided always that a notice given in accordance with the
above but received on a day which is not a Business Day or
after business hours on a Business Day in the place of receipt
will only be deemed to be given on the next Business Day in
that place.
13. GOVERNING LAW AND JURISDICTION
(1) This Deed is governed by and shall be construed in accordance with
English Law.
(2) The Guarantor submits to the jurisdiction of the English Courts for
all purposes relating to this Deed and appoints Niagara's solicitors,
Paisner & Co of Xxxxxxxx Xxxxx, 000 Xxxxx Xxxxxx, Xxxxxx XX0X 0XX (or
such other solicitors as shall subsequently be notified by the
Guarantor to Glynwed as its agent for service of process with respect
thereto.
14. REGISTRATION
(1) Immediately following the date of this Deed, Glynwed shall place its
land certificates relating to the Property on deposit at HM Land
Registry to permit Niagara to note the provisions of this Deed on the
register of title for the Property.
[AND FOR BLACKBROOK ROAD, DUDLEY ONLY
(2) In relation to the part of the Property registered under title number
WM159185 for which Glynwed will apply for a replacement land
certificate the provisions of sub-clause (1) above shall only apply
once Glynwed or the Glynwed's solicitors have notified Niagara or
Niagara's solicitors of the replacement title number.]
IN WITNESS of which this Deed has been executed as a deed in writing and
has been delivered on the date which first appears on page 1.
SCHEDULE
The provisions of the Lease shall be varied as follows:
1. [For all the properties except Jubilee Works and Planetary Road - In
Clause 1 (Definitions) the definition of "Insured Risks" shall be
deleted and replaced with the following definition:
"INSURED RISKS" means all risks of physical loss or damage (including
but not limited to subsidence and theft) as is generally available
under an all risks policy from time to time available in the
insurance market.]
2. A new paragraph shall be inserted after sub-clause 5(3)(e) (outgoings)
as follows:
"provided that nothing contained in this sub-clause 5(3) shall oblige
the Tenant to pay for any charges which relate purely to the Tenant's
business and for which the seller under the Sale of Business
Agreement is responsible pursuant to the terms of that agreement".
3. [For all the properties except Jubilee Works and Planetary Road -
Sub-clause 5(4)(a) shall be amended so that the wording "or repair
damage caused by an Insured Risk save where: "shall be deleted from
the last line of the sub- paragraph (a) and sub- paragraphs
5(4)(a)(I) and (ii) shall be deleted.]
4. Sub-clause 7 (10)(a) (Underlease requirements) shall not apply.
5. Sub-clause 7 (10)(b) (Underlease requirements) shall be replaced with
the following words:
"(b) not grant any underlease at a rent which at the of grant of the
underlease is less than the rent then payable under this
Lease;"
6. In sub-clause 7 (10)(c), the words "accept the surrender of or" shall be
deleted from the first line.
7. [For all properties except Jubilee Works and Planetary Road - Clause 8
(Insurance) shall be deleted and replaced with the following new Clause 8:
"8. INSURANCE
(1) TENANT'S INSURANCE OBLIGATIONS
The Tenant shall keep the Property insured in the joint names
of the Landlord and the Tenant with insurers or underwriters of
repute in accordance with the provisions of this clause.
(2) SUM AND RISKS INSURED
The Property shall be insured in a sum not less than its full
reinstatement cost against loss or damage by the Insured Risks
and the insurance shall extend to architects and other
professional fees in relation to reinstatement of the Property
and the cost of demolition and removal of debris.
(3) INSURANCE UNAVAILABLE
The Tenant will immediately notify the Landlord if the Tenant
is unable to arrange insurance in compliance with the
provisions of this clause either in whole or in part.
(4) REINSTATEMENT
If the Property is destroyed or damaged by any of the Insured
Risks, then the Tenant shall use reasonable endeavours to:
(a) obtain all consents and permissions necessary for
reinstatement as soon as reasonably possible; and
(b) subject to obtaining those consents and permissions, lay
out as soon as practicable all insurance monies received
by the Tenant and an amount equal to any excess imposed
by the insurers in reinstating the Property making good
any shortfall out of its own money.
(5) FAILURE TO REINSTATE
(a) If reinstatement in accordance with sub-clause (4) has
not commenced within 9 months of the date of the
destruction or damage and provided the Tenant is not
prevented from commencing reinstatement because of a
supervening event (as defined in sub-clause (10) below)
and the Tenant does not within 10 working days of the
expiry of that 9 month period exercise the option
contained in the Option Deed or if the Tenant exercises
the option but subsequently fails to complete the
purchase in accordance with the Option Deed the Landlord
may at any time after the expiry of the 10 working days
or the failure to complete serve written notice on the
Tenant terminating the Lease with immediate effect and
the provisions of clause 12(3) of the Lease will apply to
such termination.
(b) If reinstatement by the Tenant has not been completed in
accordance with sub- clause (4) above by the date 3 years
from the date of destruction or damage of the Property
either party may at any time after the expiry of the 3
year period serve 10 days written notice on the other
terminating the Lease, such termination to take effect on
the expiry of the Landlord's written notice and the
provisions of clause 12(3) of the Lease will apply to
such termination.
On the termination of the Lease under sub-paragraphs (a)
or (b) of this sub- clause the Tenant shall pay all
insurance monies together with an amount equal to any
shortfall (save as set out in sub-clause 8(12)(a) below)
in the full reinstatement value of the Property and the
cost of architects and other professional fees or
demolition and removal of debris to the Landlord save to
the extent that the Tenant has properly applied any
portion of the insurance monies with the prior written
approval of the Landlord to the reinstatement of the
Property up to the date of termination of the Lease by
the Landlord. Any dispute as to the amount to be paid by
the Tenant shall be referred to arbitration.
Any Landlord's notice to terminate the Lease served under
this sub-clause shall not take effect if at any time
prior to the expiry of the notice the Tenant exercises
its option to purchase the freehold of the Property
pursuant to the Option Deed provided that if the Tenant
subsequently fails to complete the purchase in accordance
with the Option Deed the Landlord may at any time serve a
further notice on the Tenant terminating the Lease with
immediate effect and the provisions of clause 12(3) of
the Lease will apply to such termination.
(6) FAILURE TO INSURE
If the Tenant fails to insure in accordance with this clause 8
the Landlord may (but without prejudice to its other rights,
including its right of re-entry) insure in accordance with this
clause (but in its sole name or in the joint names of the
Landlord and Tenant, at the Landlord's option) and all premiums
paid by the Landlord and all incidental expenses will be
re-paid by the Tenant to the Landlord on demand.
(7) PRODUCTION OF POLICY
Whenever reasonably required to do so by the Landlord, the
Tenant shall produce to the Landlord a copy of the insurance
policy or other evidence of it and evidence of payment of the
last premium.
(8) NOTICE OF DAMAGE
If the Property is destroyed or damaged by any of the Insured
Risks, the Tenant shall give notice to the Landlord as soon as
the destruction or damage comes to the notice of the Tenant or
ought to have come to the notice of the Tenant and shall,
within 1 month of such destruction or damage, notify the
Landlord as to whether or not the Tenant wishes to proceed to
reinstate the Property. If the Tenant notifies the Landlord
that the Tenant does not wish to reinstate the Property then
all insurance monies shall belong to the Landlord free of any
interest of the Tenant and the Tenant will take all steps
necessary which are in the Tenant's control or ought reasonably
to be in its control to ensure that all insurance monies and an
amount equal to the any shortfall (save as set out in
sub-clause 8(12)(a) below) in the full reinstatement value of
the Property and the cost of the architects and other
professional fees in relation to the reinstatement of the
Property and the cost of demolition and removal of debris are
paid to the Landlord (including paying to the Landlord any
which are paid to the Tenant) and (subject to complying with
these obligations as to insurance monies) the Tenant will be
released from the Tenant's obligation to reinstate under
sub-clause (4) above and the Landlord may, with immediate
effect, reinstate the Property and this Lease will terminate on
the date 12 months after service of the Tenant's notice stating
that the Tenant does not wish to reinstate. If the Tenant
notifies the Landlord that it does wish to reinstate the
Property then the Tenant 's break option contained in clause 12
of the Lease shall be suspended until such time as the Property
is full reinstated by the Tenant in accordance with sub-clause
(4) above. Termination will not affect either party's rights in
connection with any breach by the other of their respective
obligations in this Lease which may have occurred before the
date on which this Lease terminates including (without
limitation) the Landlord's rights in relation to any breach of
the obligations contained in clause 8(2).
(9) PREVENTION OF REINSTATEMENT
The Tenant shall not be obliged to reinstate the Property in
accordance with sub-clause (4) while prevented by a supervening
event. If the Tenant is unable to commence reinstatement within
twelve months from the date of destruction or damage because of
a supervening event and the Property or a substantial part of
it is unfit for occupation either party may determine the Term
by serving notice on the other at any time within one month of
the end of the twelve month period. For the avoidance of doubt
any notice served by the Landlord under this sub-clause to
determine the Lease shall not take effect if at the time of
service the Tenant has exercised its option to purchase the
freehold of the Property pursuant to the Option Deed provided
that if the Tenant subsequently fails to complete the purchase
in accordance with the Option Deed the Landlord may at any time
serve a further notice on the Tenant terminating the Lease with
immediate effect. On service of a notice to terminate the Term
shall cease but without prejudice to any rights that the either
party may have against the other for breach of any of the
covenants by the Landlord or the Tenant or the conditions in
this Lease and the Tenant shall pay all insurance monies
together with an amount equal to any shortfall in the full
reinstatement value of the Property (save as set out in
sub-clause 8(12)(a) below) and the cost of architects and other
professional fees in relation to the reinstatement of the
Property and the cost of demolition and removal of debris to
the Landlord save to the extent that the Tenant has properly
applied any portion of the insurance monies with the prior
written approval not to be unreasonably withheld of the
Landlord to architects or other professional fees or debris
removal or demolition in attempting to reinstate the Property
up to the happening of the supervening event. Any dispute as to
the amount to be paid by the Tenant shall be referred to
arbitration.
(10) SUPERVENING EVENT
In sub-clause (5) and (9) a supervening event means any of the
following:
(a) inability of the Tenant to obtain the consents and
permissions referred to in sub-clause (4) despite using
all reasonable endeavours to do so;
(b) grant of any of the consents or permissions subject to a
lawful condition with which it would be unreasonable to
expect the Tenant to comply or the Tenant being requested
as a precondition to obtaining any of the consents or
permissions to enter into an agreement with the planning
authority or any other authority containing conditions
with which it would be unreasonable to expect the Tenant
to comply;
(c) some defect in the site upon which reinstatement is to
take place so that it could not be undertaken; and
(d) prevention of reinstatement by any cause beyond the
control of the Tenant.
(11) DOUBLE INSURANCE
Save as provided in this Deed, the Property Agreement and the
Sale of Business Agreement the Landlord shall not effect any
insurance relating to the Property against any of the Insured
Risks.
(12) VITIATION
(a) If the Landlord does or omits to do anything at the
Property which makes the Tenant's insurance policy void
or voidable the Landlord shall make up any shortfall in
the insurance proceeds out of its own money.
(b) The Landlord may, at any time, request that the Tenant
obtain and upon such a request the Tenant shall use
reasonable endeavours to obtain an insurance policy that
contains a non-vitiation provision provided that the
Landlord shall pay to the Tenant any increase in the
amount of premium attributable to the inclusion of the
non-vitiation provision.
8. A new sub-clause 11 (16) shall be added as follows:
"(16) PROVISO"
Nothing contained in this Lease shall:
(a) impose or be deemed to impose any obligation on the part of the
Tenant in relation to any matters to the extent that the Seller
(as defined in the Sale of Business Agreement) is liable under
the Sale of Business Agreement for such matter;
(b) impose or be deemed to impose any obligation on the part of the
Tenant in respect of which and to the extent that the Tenant's
liability is excluded under the Sale of Business Agreement;
(c) impose or be deemed to impose any obligation on the part of the
Tenant in relation to any matter in respect of which the Sale
of Business Agreement limits the Tenant's liability beyond the
extent to which the Tenant is liable under the Sale of Business
Agreement; and
(d) impose or be deemed to impose any obligation which shall reduce
the liability of the Seller to perform its obligations and
liabilities under the Sale of Business Agreement.
9. For the avoidance of doubt clauses 5(20) and 8(12) of the Lease shall
apply to the obligations of the Tenant under the Lease as varied by
this Deed.
10. Schedule 5 shall be deleted and replaced by the following:
"SCHEDULE 5
GUARANTEE
(1) In consideration of the mutual covenants contained in this Lease, the
Guarantor guarantees to the Landlord and shall procure the due and
punctual performance of each obligation of the Tenant under this
Lease and shall pay to the Landlord from time to time on demand,
or procure that the Tenant shall pay, any sum which the
Tenant is at any time liable to pay to the Landlord and which has not
been paid at the time the demand is made.
(2) The obligations of the Guarantor under subclause (1):
(a) constitute direct, primary, unconditional and irrevocable
obligations without the need for any recourse on the part of the
Landlord against the Tenant;
(b) shall not be affected or impaired by any concession, time or
indulgence granted by the Landlord or by any other dealing or
thing which would but for this sub-clause (2)(b) operate to
discharge or reduce that liability; and
(c) shall not be affected or impaired by anything (including any
legal limitation, disability or incapacity on the part of the
Tenant) which causes any of the obligations of the Tenant under
this Lease to be or become invalid or unenforceable.
(3) If any of the obligations of the Tenant under this agreement is or
becomes invalid or unenforceable the Guarantor shall perform and
discharge all such obligations as if they were primary obligations of
the Guarantor or shall procure that the Tenant performs and
discharges all such obligations.
(4) The guarantee set out in this clause shall extend to any costs,
charges and expenses incurred by the Landlord in enforcing or seeking
its enforcement.
(5) The Guarantor shall make any payments due from it under this clause
in full and, without any deduction or withholding in respect of any
claim whatsoever (whether by way of set-off, counterclaim or
otherwise).
(6) If the Landlord brings proceedings against the Tenant, the Guarantor
shall be bound by any findings of fact, interim or final award or
interlocutory or final judgment made by an arbitrator or the court in
those proceedings.
(7) If:
(a) the Tenant (being a company) enters into liquidation and the
liquidator disclaims this Lease; or
(b) the Tenant (being a company) is dissolved and the Crown disclaims
this Lease; or
(c) the Tenant (being an individual) becomes bankrupt and the trustee
in bankruptcy disclaims this Lease; or
(d) this Lease is forfeited,
then within six months after the disclaimer or forfeiture the
Landlord may require the Guarantor by notice to accept a lease of the
Property for a term equivalent to the residue which would have
remained of the Term if there had been no disclaimer or forfeiture at
the same rents and subject to
the same covenants and conditions (including those as to the review
of rent) as are reserved by and contained in this Lease (with the
exception of this Schedule).
(8) The new lease and the rights and liabilities under it shall take
effect as from the date of the disclaimer or forfeiture and the
Guarantor shall be liable for all payments due under the new lease as
from the date of disclaimer or forfeiture as if the new lease had
been granted on the date of disclaimer or forfeiture.
(9) The Guarantor or his personal representatives shall pay the
Landlord's costs of and accept the new lease and shall execute and
deliver to the Landlord a counterpart of it.
(10) If the Landlord does not require the Guarantor to take a Lease of the
Property, the Guarantor shall pay to the Landlord on demand a sum
equal to the rent that would have been payable under this Lease but
for the disclaimer or forfeiture in respect of the period from the
date of the disclaimer or forfeiture until the date which is six
months after the date of the disclaimer or forfeiture or the date on
which the property has been re-let by the Landlord, whichever first
occurs.
(11) If any VAT is payable by the Tenant to the Landlord under the terms
of the Lease, the Guarantor's obligation shall extend to that VAT. If
the Guarantor makes any payment in respect of VAT, the Landlord's
obligation to issue a VAT invoice to the Tenant under the Lease in
respect of that VAT shall not be affected, and the Landlord shall not
be under any obligation to issue a VAT invoice to the Guarantor in
respect of that VAT."
11. Schedule 6 shall be deleted and replaced by the following:
"SCHEDULE 6
AUTHORISED GUARANTEE AGREEMENT
1. The Guarantor guarantees to the Landlord and shall procure the due
and punctual performance by the Assignee throughout the Guarantee
Period of each obligation of the Tenant under this Lease and shall
pay to the Landlord from time to time on demand, or procure that the
Assignee shall pay, any sum which the Assignee under this Lease is at
any time liable to pay to the Landlord and which has not been paid at
the time the demand is made.
2. The obligations of the Guarantor under paragraph 1:
(a) constitute direct, primary, unconditional and irrevocable
obligations without the need for any recourse on the part of the
Landlord against the Assignee;
(b) shall not be affected or impaired by any concession, time or
indulgence granted by the Landlord or by any other dealing or
thing which would but for this paragraph (2)(b) operate to
discharge or reduce that liability; and
(c) shall not be affected or impaired by anything (including any
legal limitation, disability or incapacity on the part of the
Assignee) which causes any of the obligations of the Assignee
under this Lease to be or become invalid or unenforceable.
3. If any of the obligations of the Assignee under this Lease is or
becomes invalid or unenforceable the Guarantor shall perform and
discharge all such obligations as if they were primary obligations of
the Guarantor or shall procure that the Assignee performs and
discharges all such obligations.
4. The guarantee set out in this paragraph shall extend to any costs,
charges and expenses incurred by the Landlord in enforcing or seeking
its enforcement.
5. The Guarantor shall make any payments due from it under this
paragraph in full and, without any deduction or withholding in
respect of any claim whatsoever (whether by way of set-off,
counterclaim or otherwise).
6. If the Landlord brings proceedings against the Assignee, the
Guarantor shall be bound by any findings of fact, interim or final
award or interlocutory or final judgment made by an arbitrator or the
court in those proceedings.
7. If during the Guarantee Period the Assignee (being a company) enters
into liquidation and the liquidator disclaims this Lease, or the
Assignee (being a company) is dissolved and the Crown disclaims this
Lease, or the Assignee (being an individual) becomes bankrupt and the
trustee in bankruptcy disclaims this Lease, then within six months
after the disclaimer the Landlord may require the Guarantor by notice
to enter into a new lease of the Property for a term equivalent to
the residue which would have remained of the term granted by this
Lease if there had been no disclaimer at the same rents and subject
to the same covenants and conditions (including as to the review of
rent) as are reserved by and contained in this Lease.
8. The new lease and the rights and liabilities under it shall take
effect as from the date of the disclaimer and the Guarantor shall be
liable for all payments due under the new lease as from the date of
disclaimer as if the new lease had been granted on the date of
disclaimer.
9. The Guarantor shall pay the Landlord's costs of and accept the new
lease and shall execute and deliver to the Landlord a counterpart of
it.
10. If the Landlord does not require the Guarantor to take a new lease of
the Property the Guarantor shall pay to the Landlord on demand a sum
equal to the rents that would have been payable under this Lease but
for the disclaimer in respect of the period from the date of the
disclaimer until the date which is six months after the date of the
disclaimer or the date on which the Property has been re-let by the
Landlord, whichever first occurs.
11. To the extent that any provision of this guarantee does not conform
with section 16 of the Act, that provision shall be severed from the
remainder of this guarantee and this guarantee shall have effect as
if it excluded that provision.
12. If any VAT is payable by the Tenant to the Landlord under the terms
of the Lease, the Guarantor's obligation shall extend to that VAT. If
the Guarantor makes any payment in respect of VAT, the Landlord's
obligation to issue a VAT invoice to the Assignee under the Lease in
respect of that VAT shall not be affected, and the Landlord shall not
be under any obligation to issue a VAT invoice to the Guarantor in
respect of that VAT.
13. In this Schedule:
"ACT" means the Landlord and Tenant (Covenants) Xxx 0000;
"ASSIGNEE" means [insert name of assignee in respect of whom the
Tenant is entering into the authorised guarantee agreement];
"GUARANTEE PERIOD" means the period ending on the date on which the
Assignee is released by virtue of the Landlord and Tenant (Covenants)
Act 1995."
THE COMMON SEAL OF )
[RELEVANT GLYNWED )
COMPANY]LIMITED )
was affixed in the )
presence of: )
Director:
Secretary:
THE COMMON SEAL OF )
NIAGARA (UK) LIMITED )
was affixed in the )
presence of: )
Director:
Secretary:
THE COMMON SEAL OF )
GLYNWED PROPERTIES )
LIMITED was affixed in )
presence of: )
Director:
Secretary:
EXECUTED BY )
NIAGARA CORPORATION )
ATTEST:
