EXHIBIT 10.1
[COMPANY LOGO]
XXXXXXX XXXXXXXXX
DATED 6 March 1996
X.X. XXXXXXX
- and -
X.X. XXXXX PROPERTIES LIMITED
(in Administrative Receivership)
- and -
BUSINESS OBJECTS (U.K.) LIMITED
- and -
BUSINESS OBJECTS SA
LEASE
Sun Court. Moorbridge Road, Maidenhead, Berkshire
Xxxxxxx Xxxxxxxxx
00 Xxxxxxxx Xxxxxx
Xxxxxx XXX 0XX
Tel: 0000 000 0000
ACCESS FLOORING NOT SHOWN
PARTICULARS
DATE OF THIS DEED : 6TH March 1996
LEASE : Lease
RECEIVER : XXXXX XXXX XXXXXXX of 000 Xxx Xxxxxxxx. St.
Albans, Hertfordshire, AL4 9XG
LANDLORD : X.X. XXXXX PROPERTIES LIMITED
(in Administrative Receivership)
Address : Xxxxxxx House. 0 Xxxxx Xxxxxx. London. EC2V 7DP
Company
Registration No. : 2255954
acting by the Receiver
TENANT : BUSINESS OBJECTS (U.K.) LIMITED
Registered office : Pickfords Wharf Clink Xxxxxx Xxxxxx XX 0 0XX
Company
Registration No. : 2636952
GUARANTOR : BUSINESS OBJECTS SA
Address : Tour Chantecoq 0 xxx Xxxxxxxxx 00000 Xxxxxxx
Xxxxx Xxxxxx
PREMISES : The premises known as Sun Court, Maidenhead
being more particularly described in Schedule 1
CONTRACTUAL TERM : Twenty-five years
CONTRACTUAL TERM
COMMENCEMENT DATE : 1996
YEARLY RENT : FOR THE 1ST YEAR OF THE TERM pound 250.000
FOR THE 2ND YEAR OF THE TERM pound 360.000
FOR THE 3RD YEAR OF THE TERM pound 400.000
FOR THE 4TH YEAR OF THE TERM pound 400.000
FOR THE 5TH YEAR OF THE TERM pound 400.000
and thereafter subject to the upwards only rent
as provided in review this Lease.
YEARLY RENT
COMMENCEMENT DATE : 1st November 1996
RENT REVIEW DATES : The 6th day of 2001 and every
fifth anniversary of that date
PERMITTED USE : Use as offices within Class B1 of the Town and
Country Planning (Use Classes) Order 1987
CONTENTS
CLAUSES SUBJECT
1. DEFINITIONS
2. INTERPRETATION
3. DEMISE AND RENT
4. TENANT'S COVENANTS
4.1 To Pay Rents
4.2 To Pay Rates and Outgoings
4.3 To Pay Interest
4.4 To Pay Costs
4.5 To Pay Value Added Tax
4.6 Common Matters
4.7 Insurance
4.8 Repair
4.9 External Redecoration
4.10 Internal Redecoration
4.11 To Maintain Landlord's Fixtures
4.12 Notice and Making Good on Tenant's Default
4.13 Alterations and Signs
4.14 To comply with Legislative Requirements
4.15 Use Consents
4.16 No Undesirable Activities
4.17 Use & Regulations
4.18 Not to obstruct
4.19 Alienation
4.20 Registration of Dealings
4.21 Information
4.22 Notice of Re-letting or Sale
4.23 Exceptions and Reservations
4.24 Not to Permit Acquisition of Easements
4.25 Tenant's Surveys
4.26 To Notify Landlord
4.27 Indemnity
4.28 New Guarantor
(ii)
4.29 Pledging Chattels as Security
4.30 To Observe and Perform Covenants etc
4.31 Raised Floor
4.32 To Yield Up
5. RENT REVIEW
6. LANDLORD'S COVENANTS
6.1 Quiet Enjoyment
6.2 Insurance
6.3 Works
7. MISCELLANEOUS
7.1 Re-entry
7.2 Rent Abatement
7.3 Exclusion of-Liability
7.4 Notices
7.5 Statutory Compensation
7.6 Superior Leases
7.7 Landlord as Xxxxxx's Agent
7.8 Adjoining Property
7.9 Distress
7.10 Set Offs
7.11 Exclusion of Rights not Granted
7.12 No Warranty as to Permitted Use
7.13 Return of Instalment of Yearly Rent
7.14 English Law
7.15 Tenant's option to determine
7.16 Certificate as to Agreement for Lease
8. LPA Receiver
9. Guarantor
SCHEDULES
Schedule 1 The Premises
Schedule 2 Rights Granted
Schedule 3 Exceptions and Reservations
Schedule 4 Matters to which the Premises are subject
Schedule 5 Guarantor's Obligation
Schedule 6 Landlord's Fixtures and Fittings
THIS LEASE is made on the date and between the Parties stated in the Particulars
THIS DEED WITNESSES:
1. DEFINITIONS
In this Lease the following expressions have the meanings indicated:
"Building" the building erected on the Premises:
"Conduits" all aerials vents chimneys ducts shafts cisterns
tanks radiators pipes wires optic fibres cables
gutters watercourses channels sewers drains and
equipment for the provision of Utilities laid now
or in the future in under or over the Premises
or serving them;
"Environmental Consent" a consent licence registration exemption approval
permission authorisation or filing requirement
relating to the environment (as defined in Section
1 of the Environmental Protection Act 1990) or
to the control or regulation of pollution of the
environment (as also defined in that Section):
"Full Reinstatement the cost of rebuilding or reinstating the land
Cost" and/or buildings which are the subject of the
insurance policy including where the Landlord
in its reasonable discretion so determines value
added tax inflation extraordinary expenses
professional fees and incidental expenses
(including but not limited to the costs of shoring
up demolition and site clearance);
"Guarantor" shall include if it is an individual his personal
representatives and includes any person who at
any time undertakes guarantor obligations pursuant
to any provision of this Lease:
"Insured Risks" fire (including subterranean fires), earthquakes.
explosion (including explosion of boilers and
other heating apparatus). lightning, thunderbolt.
xxxxx, xxxxxxx, flood. burst or overflowing of
pipes and tanks, impact by any road vehicle. and
(in peacetime) aircraft and articles dropped
therefrom and accidental damage to underground
pipes and cables. riot , civil commotion and
malicious damage and such other risks against
which the Landlord shall from time to time in the
Landlord's reasonable discretion determine to
insure:
"Interest" interest at the rate of four per cent per annum
above the Base Lending Rate from time to time of
National Westminster Bank PLC (or if such rate
shall cease to be published such other reasonable
or comparable rate as the Landlord shall from time
to time designate) compounded with monthly rests
on the first day of each month:
"Landlord" shall include the person for the time being
entitled to the reversion immediately expectant on
the Term:
"Landlord's Surveyor" any person engaged by the Landlord for any purpose
under this Lease including an employee of the
Landlord or a company which is a member of the
same group of companies (as defined in Section 42
of the Landlord and Tenant Act 1954) as the
Landlord:
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"Particulars" the Particulars appearing at the front of this
Lease:
"Parties" the Landlord and the Tenant and the Surety (if
any) and "Party" means any one of them:
"Permitted Part" the whole of Unit 1 or the whole of Unit 2 or the
whole of a complete floor of Unit 1 or the whole
of a complete floor of Unit 2 together with the
right to use the number of car parking spaces
within the Premises as specified below:
Unit 1 - 30 car parking spaces
Unit 2 - 20 car parking spaces
Complete Floor, Unit 1 - 15 car parking spaces
Complete Floor, Unit 2 - 10 car parking spaces:
"Planning Acts" the Town and Country Planning Act 1990 the
Planning (Listed Buildings and Conservation Areas)
Act 1990 the Planning (Hazardous Substances) Act
1990 the Planning (Consequential Provisions) Act
1990 the Planning and Compensation Act 1991 and
any other legislation relating to the use
development or occupation of land or buildings:
"Planning Permission" any permission consent or approval given or deemed
to be given under the Planning Acts relating to or
affecting the Premises or the use of them:
"President" the President for the time being of the Royal
Institution of Chartered Surveyors:
"Referred to Arbitration" reference to a single Arbitrator to be appointed
in default of agreement between the Landlord and
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the Tenant on the application of either the
Landlord or the Tenant by the President and any
such reference shall be a submission to
arbitration within the Arbitration Act 1950 and
1979 If the Arbitrator shall die be or become
unwilling to act or incapable of acting for any
other reason either the Landlord or the Tenant may
apply to the President for a substitute to be
appointed in his place which procedure may be
repeated as often as necessary:
"Superior Landlord"
any person having an interest in the Premises in
reversion (whether mediate or immediate to that of
the Landlord) and includes any mortgagee of the
landlord;
"Tenant" shall include its successors in title and if it is
an individual his personal representatives:
"Term" the Contractual Term starting on the Contractual
Term Commencement Date together with the period of
any continuation or extension of the tenancy
granted by this Lease (subject to any provisions
of this Lease permitting earlier determination);
"Unit 1" that part of tile Building (known as Unit 1) shown
for identification only edged blue on the Plan
numbered 2 attached:
"Unit 2" that part of the Building (known as Unit 2) shown
for identification only edged green on the Plan
numbered 2 attached:
"Use Consent" Planning Permission or Environmental Consent;
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"Utilities" foul and surface water drainage signals impulses
electric current gas water telecommunication data
communication heating ventilation air conditioning
the passage of smoke and fumes and all other
utilities services and facilities.
2. INTERPRETATION
2.1 In this Lease words importing the singular include the plural and vice
versa.
2.2 Words in this Lease importing one gender include both other genders.
2.3 References in this Lease to any legislation include any other legislation
replacing amending or supplementing it and any orders regulations bye-laws
notices permissions approvals or consents under it.
2.4 Where of assistance there shall be incorporated a perpetuity period of
eighty (80) years from the date of this Lease which shall be the applicable
perpetuity period.
2.5 My obligation in this Lease prohibiting the Tenant from doing something
shall include an obligation not to cause or permit the doing of that thing
by others and (without prejudice to any other obligation or liability of
the Tenant) to take all necessary steps To prevent that thing being done by
its employees agents contractors invitees and licensees.
2.6 Where any rights of entry or rights To do anything are excepted and
reserved in this Lease to the Landlord and/or any other person then (except
where the terms of this Lease shall otherwise expressly provide) no claim
shall be made or compensation claimed by the Tenant (or by any other person
claiming through under or in trust for the Tenant) except for the making
good of damage caused to the Premises by the person exercising such rights.
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2.7 Compliance with obligations on the part of the Tenant undertaken in this
Lease is at its own cost unless otherwise expressly specified.
2.8 If any Party to this Lease comprises more than one person obligations on
the part of that Party in this Lease are undertaken by all such persons
jointly and also by each of them individually.
2.9 Unless otherwise stated references in this Lease to the Premises include
each and every part of the Premises.
2.10 The details expressions and descriptions appearing in the Particulars shall
be included in and form part of this Lease.
2.11 References to Schedules are to Schedules in this Lease.
2.12 References in this Lease to any adjoining property of the Landlord shall be
taken to include any adjoining or neighbouring property from time to time
owned leased or occupied by the Landlord.
2.13 The headings and Contents pages in this Lease are for information only and
shall not be taken to affect its construction.
2.14 Anything shown on the Plans[s] attached to this Lease is shown for the
purpose of identification only.
3. DEMISE AND RENT
In consideration of the rents and covenants on the part of the Tenant
reserved and contained in this Lease the Landlord demises the Premises to
the Tenant at the request of the Guarantor TOGETHER WITH the rights
mentioned in Schedule 2 EXCEPT AND RESERVING the rights mentioned in
Schedule 3 AND SUBJECT as mentioned in Schedule 4 TO HOLD for the
Contractual Term starting on the Contractual Term Commencement Date
(determinable nevertheless as provided in this Lease) YIELDING AND PAYING
during the Term:
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3.1 for the period from the Contractual Term Commencement Date until the Yearly
Rent Commencement Date the rent of a peppercorn and thereafter the Yearly
Rent specified in the Particulars together with all increases in Yearly
Rent which shall become payable pursuant to the provisions for the review
of Yearly Rent contained in this Lease such Yearly Rent to be paid without
any deductions and proportionately for any part of a year by equal
quarterly payments in advance on the four usual quarter days in each year
the first (proportionate) payment of the Yearly Rent to be made on the
Yearly Rent Commencement Date in respect of the period from the Yearly Rent
Commencement Date until the next usual quarter day after the Yearly Rent
Commencement Date: and
3.2 within 14 days of a demand thereof by way of further or additional rent
from the Contractual Term Commencement Date a sum or sums of money equal To
the gross amount which the Landlord From Lime to time incurs or expends:
3.2.1 in or in respect of effecting or maintaining insurance of:
3.2.1.1 the Premises in the Landlord's estimate of their Full
Reinstatement Cost for the time being against the Insured
Risks: and
3.2.1.2 the Landlord's third party liability in relation to the
Premises and their use and occupation including but not
limited to liability under the Defective Premises Act 1972,
(together in each case with value added tax if the Landlord so determines
in its absolute discretion) and where the Premises are insured with other
property the Landlord shall attribute a fair and reasonable proportion of
the premiums to the Premises and save for manifest error the Landlord's
decision shall be final and binding on the Parties;
3.2.2 in or in respect of effecting or maintaining insurance against loss
of Yearly Rent for a period of three years or such longer
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period as the Landlord may from time to time reasonably determine
including anticipated loss of Yearly Rent following a Yearly Rent
review (and if such insurance is effected prior to the agreement or
determination of the Yearly Rent upon review the amount of such
Yearly Rent for the purpose of insurance only shall be estimated by
the Landlords Surveyor whose decision shall be final and binding on
the Parties save in case of manifest error): and
3.2.3 in respect of valuations of the Premises for insurance purposes if
required by the Landlord: and
3.3 on demand by way of further or additional rent Interest where payable under
the terms of this Lease. and
3.4 within 14 days of a demand therefor by way of further or additional rent
the sums payable from time to time under Clause 4.6
4. TENANT'S COVENANTS
The Tenant covenants with the Landlord throughout the Term:
4.1 TO PAY RENTS
to pay the reserved rents at the times and in the manner specified in this
Lease (and if and for so long as required by the Landlord to pay the Yearly
Rent by Xxxxxx's standing order or direct debit to such bank account in
England as the Landlord shall reasonably from time to time direct):
4.2 TO PAY RATES AND OTHER OUTGOINGS
4.2.1 to pay and discharge all existing and future rates taxes charges
duties assessments impositions and outgoings of any kind whether
parliamentary parochial local or of any other description now or in
the future imposed or charged upon or payable in respect of the
Premises or the supply of Utilities to
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the Premises whether or not of a capital or non-recurring nature and
whether payable by the landlord owner or occupier or tenant in
respect of the Premises (except in respect of any income or
corporation tax assessed upon the Landlord's ownership of rental
income from or dealings with its reversionary interest in the
Premises) and not without the Landlord's prior consent in writing to
claim any relief against payment of any such liabilities:
4.2.2 to pay to the Landlord on demand a fair proportion (to be determined
by the Landlord's Surveyor whose decision shall (save in case of a
manifest error) be final and binding on the Parties of any rates
taxes charges duties assessments impositions and outgoings of any
kind as described above which may at any time be imposed or charged
upon or payable in respect of the Premises together with other land
and property (save only as previously specified):
4.3 TO PAY INTEREST
to pay Interest on any sums due and payable under this Lease (whether by
way of Yearly Rent or otherwise) (as well after as before judgment) from
the date on which any such sum is due and payable (unless any other date is
specified in this Lease) until the date of payment or (if acceptance of any
such unpaid sum shall be declined by the Landlord because of any breach of
covenant) to the date upon which payment is accepted by the Landlord and
Interest shall accrue on a daily basis and shall be payable on demand;
4.4 TO PAY COSTS
to pay to the Landlord on a full indemnity basis all costs expenses and
charges (including but not by way of limitation professional advisers'
costs and disbursements) incurred by the Landlord or any Superior Landlord
and whenever requited by the Landlord to give security for them:
9
4.4.1 in respect of any application for consent required by this Lease
(including any application for the consent of any Superior Landlord)
whether or not such consent is granted:
4.4.2 in the preparation and service of all schedules of dilapidations
whether during or following the expiry or sooner determination of
the Term:
4.4.3 in or in contemplation of any proceedings under Sections 146 or 147
of the Law of Property Act 1925 (including but not by way of
limitation the preparation and service of all notices under Section
146) even if forfeiture is avoided otherwise than by relief granted
by the Court;
4.4.4 in respect of the recovery of any arrears of rent or any other
breach of covenant (including but not by way of limitation any costs
of levying distress or execution); and
4.4.5 in respect of any inspection or survey carried out by or on behalf
of the Landlord which reveals a breach of any of the Tenant's
obligations in this Lease:
4.5 TO PAY VALUE ADDED TAX AND STAMP DUTY
Upon production of a proper and Valid Value Added Tax invoice to pay:
4.5.1 to the Landlord any value added tax chargeable upon any supply made
by the Landlord to the Tenant by or pursuant to or in connection
with this Lease so that all consideration for any such supply is
exclusive of value added tax:
4.5.2 and to indemnify the Landlord against any value added tax chargeable
upon any supply (whether made to the Landlord or to a third person)
where pursuant to this Lease the Tenant is required to pay To the
Landlord any sum in respect of any
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costs fees expenses or other expenditure or liability (of whatever
nature) in connection with that supply:
4.5.3 all such value added tax at the same time that the relevant sum of
money or consideration is payable to or receivable by the Landlord or
(if earlier and in relation to supplies made by the Landlord to the
Tenant) at the time that the supply is treated as taking place for
the purposes of the charge to value added tax: and
the Landlord retaining reasonable discretion (so far as permitted by law)
as to whether any supply made by the Landlord to the Tenant or is to be an
exempt supply or a taxable supply for the purposes of value added tax:
4.6 COMMON MATTERS
to pay within 14 days of a demand therefor the whole or a fair proportion
(to be determined by the Landlord's Surveyor whose decision shall save in
case of a manifest error be final and binding on the Parties) of the
expenses payable in respect of constructing repairing renewing rebuilding
cleansing re-surfacing maintaining and lighting all party walls fences
boundary structures Conduits roads pathways pavements car parks roofs
apparatus and other areas and things (whether or not of a like nature) the
use of which is common to the Premises and any other property together with
a reasonable management charge (if demanded):
4.7 INSURANCE
4.7.1 to comply with all recommendations arid requirements of the insurers
and fire authorities as to fire precautions and fire fighting
equipment relating to the Premises and to comply with all such
reasonable regulations in this regard as the Landlord may from time
to time notify to the Tenant:
11
4.7.2 in the event of the Premises being destroyed or damaged by any of
the Insured Risks to give notice in writing to the Landlord as soon
as possible:
4.7.3 not to leave the Premises vacant or unoccupied without first giving
the Landlord at least 28 days notice in writing of the intention so
to do and without first paying any additional or increased premium
required by the insurers and without first providing such security as
the Landlord shall require in respect of any exclusions excesses
limitations conditions or qualifications which the insurers may
impose upon the Insured Risks or the policy;
4.7.4 not to do or omit to do anything or bring on to the Premises any
explosive inflammable or toxic or otherwise harmful chemicals or
materials or any other matter or thing of any kind if any such act or
omission would or might cause the policy for the insurance of the
Premises or any adjoining or neighbouring property to become void or
voidable or any premium payable to be increased above the ordinary or
common rate:
4.7.5 if the Premises are destroyed or damaged by any of the Insured Risks
to pay to the Landlord on demand:
4.7.5.1 an amount equivalent to any insurance money irrecoverable by
reason solely or in part of any act default or omission by
the Tenant or by any underlessee licensee or visitor: and
4.7.5.2 the amount of any excess required by the insurers or by the
Landlord under any policy of insurance for the Premises:
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4.7.6 in relation to plate glass:
4.7.6.1 to insure and at all times keep insured any plate glass in
the Premises against breakage and damage in its full
reinstatement cost and as often as any such plate glass
shall be broken or damaged to reinstate the same as soon as
possible (the Tenant making good from its own resources any
deficiency in the insurance money):
4.7.6.2 to effect such insurance in an insurance office approved by
the Landlord in the names of the Landlord and Tenant and of
any Superior Landlord and upon every request by the Landlord
immediately to produce particulars of the policy of
insurance and the receipt for every premium payable for the
then current year: and
4.7.6.3 if and whenever default shall be made in effecting and
keeping on foot such insurance or in producing such
particulars or receipt the Landlord may effect and maintain
such insurance and the Tenant shall repay to the Landlord
upon demand all money paid by the Landlord for that purpose
and such money if not so paid shall be recoverable as rent
in arrear:
4.7.7 except as provided above not to effect any insurances in respect of
the Premises:
4.8 REPAIR
4.8.1 to put and throughout the Term To keep the Premises in good and
substantial repair condition and decoration (with tile exception of
damage by any Insured Risk save where any insurance money shall be
wholly or partly irrecoverable by
13
reason solely or in part of any act default or omission by the Tenant
or by any underlessee licensee or visitor and with the exception of
the dilapidations to the Premises as at the date of this lease which
the parties agree are recorded in the schedule of dilapidations
attached to this lease save to the extent that such dilapidations are
made good by or at the expense of the Landlord to the reasonable
satisfaction of the Tenant);
4.8.2 to keep any outside parts of the Premises in a clean neat and tidy
state and condition free from litter weeds and rubbish and to keep
the same property maintained and cultivated and to replace all
damaged dead or diseased trees shrubs and plants as necessary;
4.8.3 to clean all windows of the Premises as often as may be necessary
and at least once in every three months:
4.9 EXTERNAL REDECORATION
in the last six months of the fifth year of the Term and thereafter in
every third year of the Term and also in the last six months of the Term in
a proper and workmanlike manner using good quality materials and following
any manufacturer's instructions or recommendations (and in the last six
months of the Term in accordance with the colours and materials of the
original specifications or as otherwise may be approved by the Landlord In
writing):
4.9.1 to paint varnish treat or preserve to a high standard all the
outside wood metal brickwork walls fences gates or other parts
belonging To the Premises previously painted varnished treated or
preserved (as the case may be) but excluding all external doors.
window frames and woodwork which have been powder-coated: and
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4.9.2 to repoint clean and (where appropriate) replace all seals and
mastics and otherwise treat as appropriate those exterior parts of
the Premises which ought to be so treated:
Provided always that:-
(i) if the Tenant shall give notice under clause 7.15 such decoration
shall be undertaken in the last three months of the fifth year of the
Term
(ii) if no such notice shall be given the Tenant shall not be obliged to
decorate in the 23rd year of the Term.
4.10 INTERNAL REDECORATION
in the last three months of the fifth year of the Term and thereafter in
every fifth year of the Term and also in the last three months of the Term
in a proper and workmanlike manner using good quality materials and
following any manufacturer's instructions or recommendations (and in the
last three months of the Term in tints colours patterns and materials to be
approved by the Landlord in writing):
4.10.1 to paint varnish treat or preserve to a high standard all the
inside wood metal plaster and other parts of the Premises previously
painted varnished treated or preserved (as the case may be); and
4.10.2 to clean and otherwise treat as appropriate those interior parts of
the Premises which ought to be so treated;
Provided always that:-
(i) if the Tenant shall give notice under clause 7.15 such decoration
shall be undertaken in the last three months of the fifth year of the
Term
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(ii) such decoration shall in any event be undertaken in the last three
months of the Term
4.11 TO MAINTAIN LANDLORD'S FIXTURES
4.11.1 to maintain in good and serviceable condition the Landlord's
fixtures and fittings in or upon the Premises and replace such of
them as may become worn out lost or unfit for use by substituting
others of a like nature (but of no lesser quality):
4.11.2 in addition to replace all carpets and floor coverings in the
Premises as often as reasonably necessary and in any event in the
last month of the Term on each occasion in colours and materials to
be first approved by the Landlord (such approval not to be
unreasonably withheld);
4.11.3 to enter into contracts with parties approved by the Landlord for
the maintenance and repair of plant and machinery in the Premises if
the Landlord so reasonably requires and to produce such contracts
and all reports and invoices connected with them whenever so
requested;
4.12 NOTICE AND MAKING GOOD ON TENANT'S DEFAULT
4.12.1 within the space of sixty days (or such shorter period as the
Landlord shall reasonably require) to comply with any notice in
writing served by the Landlord specifying any breach by the Tenant
of any of its obligations under this Lease (including but not
limited to the repair condition and decoration of the Premises or
the execution of any other works);
4.12.2 if the Tenant shall at any time be in breach of any such
obligation:
4.12.2.1 to permit the Landlord (without the Landlord being obliged
to do so and without prejudice to
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the Landlord's right of re-entry contained in this Lease or
any other rights of the Landlord with regard to such
default) during the Term or after the expiry or sooner
determination of the Term (without being liable to the
Tenant or to any person claiming through under or in trust
for the Tenant for any damage so caused) at the expense of
the Tenant to remedy any breach of all or any of those
obligations of the Tenant and to permit the Landlord to
enter the Premises for that purpose: and
4.12.2.2 to pay to the Landlord on demand all costs and expenses so
incurred by the Landlord (and all such costs and expenses if
not so paid shall be recoverable by the Landlord as a debt):
4.13 ALTERATIONS AND SIGNS
4.13.1 not to erect any new building or structure of any kind on the
Premises:
4.13.2 not to cut remove alter or damage the Premises nor to make any
structural alteration addition or improvement in or to the
Premises either internally or externally nor to make any change in
the design appearance or style of the exterior of the Premises:
4.13.3 not to make internal non-structural alterations to the Premises
without the previous approval in writing of the Landlord and in
accordance with plans and specifications previously approved in
writing by the Landlord (each such approval not to be unreasonably
withheld) provided always that:
4.13.3.1 during the period of six months immediately preceding
the expiry or sooner determination of
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the Term the Tenant shall reinstate the Premises (unless
and to the extent requested not to do so by the Landlord)
as they were prior to the execution of such internal non-
structural alterations and make good all consequential
damage to the satisfaction of the Landlord and any
Superior Landlord; and
4.13.3.2 the Landlord may as a condition of giving such consent
require the Tenant to enter into such covenants with the
Landlord as the Landlord may require for the execution
and supervision of such works and such other covenants as
the Landlord may reasonably require;
4.13.4 not to place affix or exhibit at the windows or upon the exterior
of the Premises any showcase aerial pole mast flag inscription
signboard bill plate board placard poster advertisement or other
notification of any kind save that the Tenant may with the prior
approval in writing of the Landlord of its size design and location
(such approval not to be unreasonably withheld) erect a plate or
sign displaying the name and business of the Tenant or any other
authorised occupant of any part of the Premises which conform with
all statutory and other regulations the Tenant removing the same on
the expiry or sooner determination of the Term and making good all
resulting damage);
4.14 TO COMPLY WITH LEGISLATIVE REQUIREMENTS
4.14.1 to comply with all present and future legislation from time to time
in force upon or in respect of the Premises or their use or
occupation whether compliance is required by the owner landlord
tenant or occupier and at all times to keep the Landlord indemnified
against all actions proceedings losses
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liabilities costs damages expenses claims and demands arising out of
or resulting from them;
4.14.2 within seven days of receipt to give full written particulars to
the Landlord of any notice order or assessment or any proposal for
any of them made given or issued to the Tenant by any government
department local or public authority under or by virtue of any
statutory powers and to produce to the Landlord such notice order or
assessment or such proposal and also without delay to take all
reasonable or necessary steps to comply with any such notice or
order and also at the request and under the direction of the
Landlord but at the cost of the Tenant To make or join with the
Landlord in making such objection representation or appeal against
or in respect of any notice order or assessment or such proposal as
the Landlord shall deem expedient;
4.15 USE CONSENTS
in addition to and not by way of limitation or contradiction of any other
provision contained in this Lease to be observed or performed by the
Tenant:
4.15.1 at all times during the Term to comply in all respects with the
provisions and requirements of the Planning Acts and of all Use
Consents so far as they relate to or affect the Premises or any
development (as defined in the Planning Acts) already or to be
carried out executed done or omitted on the Premises or their use
for any purpose:
4.15.2 not to make any application for any Use Consent without the
previous written consent of the Landlord (such consent not to be
unreasonably delayed or withheld);
4.15.3 during the Term as often as occasion shall require at the expense
in all respects of the Tenant to obtain all Use Consents
19
and serve all such notices as may be required for the carrying out
of any such development on the Premises or the institution or
continuance on the Premises of any use of the Premises or the
carrying out of any activity or process at the Premises in respect
of which any Use Consent may be required subject only to any
legislative direction to the contrary to pay and satisfy any charge
or levy that may now or in the future be imposed under any
legislation in respect of the carrying out or retention of any such
development or the institution or continuance of an such use;
4.15.4 not to carry out or make any alteration or addition to the Premises
or any change in their use before all necessary Use Consents have
been produced to the Landlord:
4.15.5 not to implement any Use Consent which is granted until the
Landlord has approved it nor before do Tenant has provided such
security for the compliance with its terms as the Landlord shall
require:
4.15.6 at the request and under the direction of the Landlord but at the
Tenant's cost to appeal against any refusal of or condition
contained in any Use Consent:
4.15.7 where any Use Consent is implemented then unless the Landlord shall
otherwise direct to carry out and complete before the expiry or
sooner determination of the Term:
4.15.7.1 any works stipulated to be carried out to the Premises by
a date subsequent to the expiry or sooner determination
of the Term as a condition of any Use Consent granted
before such expiry or determination: and
4.15.7.2 any development begun upon the Premises in respect of
which the Landlord shall or may be or
20
become liable for any charge or levy under any
legislation:
4.15.8 if and when called upon to do so to produce to the Landlord or the
Landlord's Surveyor all such plans documents and other evidence as
the Landlord may reasonably require in order to satisfy the Landlord
that the provisions of this sub-clause have been complied with in
all respects:
4.15.9 if the Tenant shall receive any compensation in respect of the
Tenant's interest under this Lease because of any restriction placed
upon the user of the Premises under or by virtue of any legislation
then on the expiry or sooner determination of the Term immediately
to make such provision as is just and equitable for the Landlord to
receive the Landlord's due benefit from such compensation:
4.16 NO UNDESIRABLE ACTIVITIES
4.16.1 not to use or occupy the Premises for or in connection with any
illegal or immoral purpose or any purpose which may cause any other
property not to comply with any applicable law;
4.16.2 not to commit or carry out on or from the Premises any noisy
noxious dangerous or offensive act activity or purpose nor any
activity or purpose which shall cause any inconvenience nuisance
damage or disturbance to the Landlord or the owners tenants or
occupiers of any adjoiningor neighbouring property:
4.16.3 not to permit empty containers waste or rubbish of any description
to accumulate on the Premises:
4.16.4 not to hold any sale by auction on the Premises:
4.16.5 not to sleep on or reside in the Premises:
21
4.16.6 not to install any heavy or vibrating machinery in the Premises nor
cause any undue stress or strain on the floors or structure of or
any lift installed in the Premises:
4.16.7 not to do anything which may cause or result in:
4.16.7.1 any damage to or overloading obstruction or pollution of
Conduits; or
4.16.7.1 any pollution of water (including but not limited to
ground water) land or any buildings or structures whether
or not attached to land:
4.17 USE & REGULATIONS
4.17.1 not to use the Premises otherwise than for the Permitted Use:
4.17.2 to observe and perform any reasonable regulations made by the
Landlord from time to time in relation to the Premises whether alone
or together with any adjoining property:
4.18 NOT TO OBSTRUCT
4.18.1 not to do anything whereby any road forecourt path or passage near
to or serving the Premises may be damaged or obstructed or their use
by others may be impeded or hindered in any way:
4.18.2 not to park unload or load vehicles or containers in the adjoining
or neighbouring roads and accessways:
4.18.3 not to exhibit or place any articles of any kind outside nor to
attach them to the exterior of or projecting from the Premises or
any building on the Premises:
22
4.19 ALIENATION
4.19.1 not to assign or charge part only of the Premises;
14.19.2 Not to assign the whole of the Premises without the prior written
consent of the Landlord (such consent not to be unreasonably
withheld subject to the agreements contained in the remainder of
this clause 4.19.2)
4.19.2.1 it is agreed that the Landlord shall not be regarded as
unreasonably withholding its consent to any proposed
assignment of the whole of the Premises if it withholds
it on the ground (and it is the case) that any one or
more of the below mentioned circumstances exist (whether
or not such withholding is solely on such ground or on
that ground together with other grounds) (a) that the
proposed assignee is unable to demonstrate that for each
of the three consecutive financial periods being in
aggregate not less than three years (the last such period
to have ended within the year immediately prior to the
date of the application to assign) its accounts indicate
that the proposed assignee has achieved net profits
before tax (meaning the net trading profits before tax
for a period of twelve months or in the case of any other
period the annualised rate of net profit before tax of
such person or body arising from its ordinary trading
activities but excluding any profits from the sale of
fixed assets businesses or investments or other
exceptional and/or extraordinary items or items which
would have been classified as extraordinary and/or
exceptional items before the introduction of Accounting
Standard FRS3 after deduction (on an annualised basis) of
depreciation, interest charges. and all
23
other expenses or charges as disclosed by the accounts of
such person or body for the financial periods in
question) equal to or exceeding the aggregate of the
total amount likely. in the reasonable opinion of the
Landlord, to be payable during the period of three years
from the date which in the reasonable opinion of the
Landlord is the likely date upon which the assignment (if
authorised) will take place by way of rents. insurance
and service charges and all other taxes and outgoings
payable by the Tenant under this lease (b) that the
proposed assignee is an associate (as defined in Section
52(3) of the Companies Act 1989) of either the Tenant or
the Guarantor and:-
(i) for the purposes of clauses 4.19.2.1 and also
clause 4.19.2.2 "accounts" shall be the audited
profit and loss accounts drawn up for the relevant
periods in accordance with the Companies Act 1985
(as amended) (or any statutory amendment or re-
enactment of it for the time being in force) and
the relevant Statements of Standard Accounting
Practice applicable to the United Kingdom (or in a
case other than that of a company incorporated in
the United Kingdom accounts prepared or restated
in similar form)
(ii) clause 4.19.2.1 shall operate without prejudice to
the right of the Landlord to withhold consent on
any other ground or grounds where such withholding
of consent would be reasonable
24
(iii) in the event that any circumstances or conditions
specified in clause 4.19.2.1 above are framed by
reference to any matter falling to be determined
by the Landlord (or by any other person) ([save
where the power to determine such matter is
required to be exercised reasonably]) if the
Tenant disputes such determination then either the
Landlord of the Tenant shall be entitled to
require the matter or matters in question to be
referred to an independent expert who in the
absence of agreement between the parties shall be
appointed on the application of either party to
the President or next most senior available
officer of the Royal Institution of Chartered
Surveyors and the determination of such
independent expert shall be conclusive as to the
matter or matters in question and shall be final
and binding on the parties and his costs shall be
met by the parties hi such proportions as the
independent expert shall determine
4.19.2.2 it is agreed that any consent to an assignment of the
whole of the Premises shall not be regarded as being
given subject to unreasonable conditions if it is given
subject to any one or more of the following conditions:
(a) in the event that the proposed assignee is unable to
demonstrate that for each of the three consecutive financial
periods (as determined in accordance with clause 4.19.2.1)
its accounts indicate that the proposed assignee has
achieved net profits (defiled as in clause 4.19.2.1) equal
to or exceeding the net profits of the assignor
25
during any of such financial periods a requirement that the
assignor execute and deliver prior to the assignment an
Authorised Guarantee Agreement (as defined in and for the
purposes of Section 16 of the Landlord & Tenant (Covenants)
Act 1995) in the form of the draft agreement annexed to this
lease under which the assignor will agree with the
Landlord:-
(i) that he/it is liable as sole or principal debtor
in respect of all obligations to be owed by the
assignee under the Tenant Covenants (as defined in
Section 28 of that Act) in this Lease: and
(ii) to be liable as guarantor in respect of the
assignee's performance of the Tenant Covenants (as
above defined) in this Lease (provided that such
liability shall be no more onerous than the
liability to which the assignor would be subject
in the event of its/his being liable as sole or
principal debtor in respect of the obligations
owed by the assignee under the said Tenant
Covenants):and
(iii) in the event of this lease being disclaimed. to
enter into a new lease of the Premises the term of
which shall expire simultaneously with the date
upon which (but for any such disclaimer) this
Lease would have expired by effuxion of time (and
not by any other means) and the Tenant Covenants
in which shall be identical to (mutatis mutandis
but in any event no more onerous than) the Tenant
Covenants in this Lease
26
(iv) provisions incidental or supplementary to any of
clauses 4.19.2(a)(i)-(iii)
(b) a requirement that the assignee covenants to the Landlord in
the Licence to Assign to pay the rent for the time being and
from time to time reserved by this Lease and to observe and
perform the Tenant Covenants and conditions contained in
this Lease for the period that this Lease is vested in him
and upon the next assignment to enter into an Authorised
Guarantee Agreement as specified above PROVIDED ALWAYS that
clause 4.19.2.2 shall operate without prejudice to the right
of the Landlord to impose any further conditions upon a
grant of consent where such imposition is reasonable
4.19.3 Not to underlet the whole or any part of the Premises without the
Landlord's prior written consent obtained not more than three months
previously which consent shall not be unreasonably withheld for the
underletting of the whole or the underletting of a Permitted Part so
long as there are no more than three underlettings of Permitted
Parts and in the case of underletting of Permitted Parts the Tenant
remains in occupation of at least one Permitted Part.
4.19.4 not to part with or share possession or occupation of or grant any
other person rights over or in respect of the Premises nor to hold
or occupy the Premises as nominee trustee or agent or otherwise for
the benefit of any other person otherwise than by either:
4.19.4.1 an assignment or underletting permitted by this Lease: or
27
4.19.4.2 sharing occupation of the Premises with any company which
is a member of a group of companies (as defined in
Section 42 of the Landlord and Tenant Act 1954) of which
the Tenant is itself a member provided first that no
exclusive possession is given secondly that only a
licence terminable on not more than twenty working days
notice is created thirdly that such sharing of occupation
shall immediately cease if the Tenant and the company
sharing occupation shall cease for any reason to be
members of the same group of companies fourthly that the
Tenant provides to the Landlord such information and
details concerning the occupation and the fulfilment of
these conditions as we Landlord may reasonably request
4.19.5 on any assignment or underlease to procure (if reasonably so
required by the Landlord) that a guarantor or guarantors acceptable
to the Landlord shall enter into surety covenants direct with the
Landlord in the terms set out in the Fifth Schedule with such
variations as the Landlord shall reasonably require to suit the
circumstances of each case;
4.19.6 prior to the grant of any underlease to procure that the
underlessee covenants direct with the Landlord to observe and
perform all the terms and conditions and the covenants on the part
of the Tenant contained in this Lease (other than as to payment of
rent) throughout the term demised by such underlease (and any
continuation or extension of it whether by statute or common law);
4.19.7 prior to the grant of any underlease to produce to the Landlord a
certified copy of an Order of the Court under Section 38(4) of the
Landlord and Tenant Act 1954 (as amended) authorising
28
the exclusion of Sections 24 to 28 (inclusive) of that Act in
relation to such proposed underlease;
4.19.8 to procure that any underlease shall contain covenants by the
underlessee with the Tenant and(separately)with the Landlord that
the underlessee will not:
4.19.8.1 assign underlet charge or part with or share possession
or occupation of part only of the premises underlet:
4.19.8.2 charge underlet or (save by way of an assignment of the
whole) part with or share possession or occupation of the
whole of the premises underlet: or
4.19.8.3 assign the whole of the premises underlet without the
prior written consent of the Tenant and the Landlord:
4.19.9 on the grant of any underlease:
4.19.9.1 not to reserve or charge any fine or premium;
4.19.9.2 to charge a yearly rent (payable not less frequently than
quarterly in advance) which shall be the higher of the
Yearly Rent payable under this Lease (or the appropriate
proportion of the Yearly Rent in the case of a Permitted
Part) and the Open Market Rent of the premises underlet
(as assessed under this Lease assuming for such purpose
that the date of such underlease shall be the relevant
Review Date) at the date of such underlease:
4.19.9.3 to include provisions for upwards only review of the
yearly rent corresponding both as to terms and
29
dates with the provisions for review of Yearly Rent
contained in this Lease:
4.19.9.4 to include a proviso for re-entry on breach of any
covenant on the part of the underlease: and
4.19.9.5 to include such covenants on the part of the underlessee
as shall secure the due performance and observance of the
terms and conditions and the covenants on the Tenant's
part contained in this Lease (save for payment of rent)
in relation to the premises underlet;
4.19.10 duly and punctually to exercise all rights to review the yearly
rent reserved by any underlease but not to agree any reviewed
yearly rent with the underlessee without the Landlord's prior
written consent (such consent not to be unreasonably withheld) and
to procure that if the yearly rent under any underlease is to be
determined by an independent person not to determine whether that
person shall act as an expert or as an arbitrator without tile
Xxxxxxxx's prior written consent and to procure that the Landlord's
representations as to the reviewed yearly rent to be payable under
it are made to that independent person to the Landlord's reasonable
satisfaction;
4.19.11 not to vary the terms or accept a surrender of any underlease (or
agree to do so) without the Landlord's prior written consent:
4.19.12 to enforce the covenants on the part of the underlessee and the
terms and conditions contained in the underlease;
4.20 REGISTRATION OF DEALINGS
within twenty-one days after any charge assignment or underletting of the
Premises or any other disposition or transmission or devolution of the
30
Premises to give notice to the Landlord in writing and to produce all
relevant documents together with a certified copy of each of them for
retention by the Landlord and to pay the Landlord or the Landlord's
solicitors a reasonable fee (in any event not less than Twenty Five Pounds)
for registration of the notice:
4.21 INFORMATION
within one month of being requested to do so to notify the Landlord in
writing of the name address and relationship to the Tenant of any occupier
of the Premises;
4.22 NOTICE OF RE-LETTING OR SALE
to permit the Landlord or persons authorised by the Landlord to enter upon
the Premises for the purpose of erecting a notice board in a position first
approved in writing by the Tenant at any time during the last six calendar
months prior to the expiry or sooner determination of the Term stating that
the Premises are to let and at any time during the Term stating that the
Premises are for sale and not to remove interfere with or obscure the
notice board and to permit all persons by order in writing of tile Landlord
or the Landlord's agents to view the Premises at all reasonable hours in
the daytime without interruption;
4.23 EXCEPTIONS AND RESERVATIONS
to permit the Landlord and persons authorised by the Landlord from time to
time and with or without workmen to exercise the rights excepted and
reserved in Schedule 3:
4.24 NOT TO PERMIT ACQUISITION OF EASEMENTS
not to obstruct any windows lights access or Conduits belonging to or
serving the Premises nor to permit any new window light access Conduits or
other encroachment or easement to be made into against upon or over the
Premises and in case any person attempts to make any encroachment
31
or acquire any easement on each occasion to give notice in writing to the
Landlord immediately the Tenant becomes aware of it and at the cost of the
Tenant to do everything that may be necessary or desirable to prevent any
new encroachment or easement being made or acquired:
4.25 TO NOTIFY LANDLORD
to give notice in writing immediately to the Landlord of any:
4.25.1 defect or default of which the Tenant becomes aware which might
give rise to a duty or liability on the part of the Landlord to
third parties or to the Tenant: and
4.25.2 notice received from any local or other competent authority or any
other person relating to the Premises the Landlord's estate or
interest in or the Tenant's occupation of the Premises:
4.26 INDEMNITY
at all times to keep the Landlord indemnified against all actions
proceedings losses liabilities costs damages expenses claims and demands
arising out of or resulting from:
4.26.1 any breach or non-observance of the Tenant's covenants contained in
this Lease:
4.26.2 the existence state of repair condition or use of the Premises:
4.26.3 works of repair construction or alteration to the Premises: and
4.26.4 any act omission or default of the Tenant or the Tenant's
underlessees or their respective agents employees invitees or
licensees;
32
4.27 NEW GUARANTOR
if at any time during the Term the Guarantor (if any) or (where the
Guarantor comprises more than one person) any one or more of those persons
either dies becomes bankrupt or has a receiving order made against him or
being a company enters into liquidation whether compulsory or voluntary or
an application is made for a Receiver or Administrator or Administrative
Receiver to be appointed of all or any part of its assets to give notice in
writing to the Landlord immediately with full details and within fourteen
days of being so requested by the Landlord (which it may do or not at its
absolute discretion) to procure at the expense of the Tenant in all
respects that some other person or persons acceptable to the Landlord shall
enter into guarantor obligations with the Landlord in the terms set out in
Schedule 5 with such variations as the Landlord shall reasonably require to
suit the circumstances of each case:
4.28 PLEDGING CHATTELS AS SECURITY
not to give any bill of sale or offer preferential security on the Tenant's
stock in trade or personal chattels from time to time in or upon the
Premises:
4.29 TO OBSERVE AND PERFORM COVENANTS ETC
to observe and perform all and any covenants stipulations and other matters
of any kind contained or referred to in Schedule 4 affecting the Premises
(save only insofar as the Landlord covenants expressly in this Lease to
observe and perform them);
4.30 ACCOUNTS INFORMATION
on request from the Landlord but not more after than once in every year to
provide to it a copy of the latest available audited accounts for the
Tenant the Guarantor and any company which is the holding company and/or
which is the ultimate parent company of the Tenant if that is a company
other than the Guarantor and in respect of which the information
33
contained in paragraph 12 of part I of Schedule 5 of the Companies Act 1985
is required to be stated in that Xxxxxx's audited accounts
4.31 RAISED FLOOR
to instal a raised floor throughout the Premises in accordance with the
specification annexed to this lease and to the reasonable satisfaction of
the Landlord within three months from the date of this Lease:
4.32 TO YIELD UP
on the expiry or sooner determination of the Term:
4.32.1 to remove all signs and Xxxxxx's fixtures and fittings furniture
and effects making good all damage so caused: and
4.32.2 to yield up the Premises to the Landlord consistent with the full
and due compliance by the Tenant with the covenants contained in
this Lease.
5. RENT REVIEW
5.1 DEFINITIONS
In this clause the following expressions shall have the following meanings:
"Assumptions" the assumptions (if not facts) that:
1. the Premises are in good and
substantial repair and are fit for
immediate full beneficial
occupation and use and that the
Landlord and the Tenant have
compiled with all their respective
obligations under this Lease:
34
2. if the Premises or any access or
amenity have been damaged or
destroyed they have or it has been
fully reinstated;
3. the Premises are available to be
let with vacant possession:
4. the willing tenant would commence
paying rent immediately on and
from the relevant Review Date and
that such rent would not be
discounted in any way to reflect
the absence of any rent concession
or other benefit then being
offered by landlords to tenants on
the grant of leases in the open
market of premises comparable with
the Premises;
5. no work has been carried out
either on the Premises by the
Tenant or on any adjoining or
neighbouring property during the
Term which has diminished tile
rental value of the Premises: and
6. all requisite Use Consents and all
other approvals and permissions
have been given unconditionally to
permit the Premises to be used for
any purpose within Class B1 of the
Town and Country Planning (Use
Classes) Order 1987 (and that
35
no capital expenditure is required to
be made on the Premises to enable them
to be so used):
7. that the Landlord has fully met
the cost of complying with the
covenant on the part of the Tenant
in clause 4.31 of this Lease:
"Disregarded Matters" the following matters so far as they
may have any effect or any effect on
rental value:
1. the fact that the Tenant has been
in occupation of the Premises.
2. any goodwill attaching to the
Premises by reason of the Tenant
carrying on any business at the
Premises:
3. any improvements carried out with
the Landlord's prior written
consent by the Tenant during the
Term at the expense of the Tenant
otherwise than in pursuance of an
obligation to the Landlord or its
predecessors in title
4. any law for die time being in
force which imposes a restraint
upon receiving an increase in the
Yearly Rent: and
36
5. the fact that the Landlord may
have insured against loss of
Yearly Rent in any particular sum
whether equal to or in excess of
the Yearly Rent payable prior to
the relevant Review Date:
"Excess" the amount by which the New Rent
exceeds the Yearly Rent previously
payable; either:
"New Rent"
1. the rent agreed by the Landlord
and the Tenant To be payable from
the relevant Review Date: or (If
such rent is not agreed)
2. the higher of:
2.1 the Yearly Rent payable
immediately before the
relevant Review Date
(disregarding any suspension
of payment of the whole or
any part of the Yearly Rent
as provided in this Lease);
and
2.2 the Open Market Rent of the
Premises on the relevant
Review Date as determined by
the Surveyor;
"Open Market Rent" the yearly rent without any deduction
whatever at which the Premises could
37
reasonably be expected to be let in the
open market at the relevant Review Date
without a fine or premium by a willing
landlord to a willing tenant under a
Lease for a term equal in length to the
whole of the Contractual Term
commencing on the relevant Review Date
and with rent review dates at each
fifth anniversary of the relevant
Review Date on oil the same terms and
conditions in all other respects as
this present Lease other than the
amount of Yearly Rent but including
these provisions for review and on the
Assumptions but taking no account of
the Disregarded Matters:
"Review Date" the date or dates referred to in the
Particulars as the Rent Review Dates:
"Surveyor" an independent Surveyor appointed to
determine the amount of the New Rent.
5.2 NEW RENT
The New Rent shall be payable from, and including the relevant Review Date.
5.3 DETERMINATION OF NEW RENT
5.3.1 Tile Landlord and the Tenant may at any time agree the New Rent and
such agreement may include agreement that the New Rent is formulated
in terms which provide for different amount to be paid for different
specified periods between the relevant Review Date and the next
Review Date or (if none) the expiry of the Lease.
38
5.3.2 If no agreement as to the amount of the New Rent payable from the
relevant Review Date shall have been reached between the Landlord
and the Tenant three months prior to the relevant Review Date then
either the Landlord or the Tenant may by notice to the other require
the determination of the amount of the New Rent at the relevant
Review Date by a Surveyor.
5.3.3 The Surveyor and whether he is to act as arbitrator or an expert
valuer may be agreed upon by the Landlord and the Tenant or if they
do not agree the Surveyor shall be appointed by or on behalf of the
President on the application of either the Landlord or the Tenant in
accordance with the provisions of this clause.
5.3.4 The Tenant shall give to the Landlord at least fifteen working days'
prior notice in writing of its intention to make an application to
the President for appointment of the Surveyor (and in the absence of
such notice any application made by the Tenant shall be of no
effect).
5.3.5 The Surveyor (if appointed by or on behalf of the President) shall
act as an arbitrator in accordance with the Arbitration Acts 1950
and 1979:
5.3.6 The Surveyor shall give notice to the Landlord and to the Tenant of
his appointment.
5.3.7 If the Surveyor is acting as an expert the Landlord and the Tenant
shall each be entitled to make representations and counter
representations in writing to the Surveyor a copy of which shall
simultaneously be supplied to the other of them.
5.3.8 If the Surveyor shall fail to determine the New Rent and give notice
to the Landlord and the Tenant of his determination within three
months of his appointment or if he shall die or become unwilling to
act or incapable of acting for any other
39
reason the Landlord may apply to the President for a substitute to
be appointed in his place which procedure may be repeated as often
as necessary.
5.3.9 The fees of the Surveyor shall be in his award but otherwise shall
be shared equally between the Landlord and the Tenant (and if the
Tenant shall fail to pay on demand any part of those fees which the
Tenant is due to pay they may be paid by the Landlord and shall be
recoverable by the Landlord as rent in arrear).
5.4 LATE DETERMINATION
If upon any review of Yearly Rent the amount of the New Rent shall not be
agreed or determined prior to the relevant Review Date the Tenant shall
continue to pay Yearly Rent at the rate payable immediately prior to that
Review Date until the quarter day next following the agreement or
determination of the New Rent whereupon any Excess shall be due as a debt
payable by the Tenant to the Landlord apportioned on a daily basis from the
relevant Review Date together with interest at two percentage points below
Interest on the Excess from the relevant Review Date until the date of
payment of the Excess.
5.5 MEMORANDUM
If upon any such review it shall be agreed or determined that the New Rent
shall be different from the Yearly Rent previously payable under this Lease
the Landlord and the Tenant shall immediately complete and sign a written
memorandum at the expense of the Tenant recording the New Rent.
5.6 FINAL DETERMINATION
If the Surveyor is acting as an expert valuer his determination of the New
Rent shall be final and binding on the Parties save in case of a manifest
error.
40
5.7 LEGISLATIVE RESTRICTIONS
If on any Review Date there shall be in force any statute which shall
restrict interfere with or affect the Landlord's right to review the Yearly
Rent in accordance with the terms of this Lease or receive any increase in
Yearly Rent following such review the Landlord shall be entitled when
permitted by or following the repeal or modification of that statute to
require a review of the Yearly Rent in accordance with the terms of this
Lease as though the date of the repeal or modification of that statute had
been specified in this Lease as an additional Review Date.
5.8 TIME NOT OF ESSENCE
Time shall not be of the essence in relation to the review of the Yearly
Rent or he service of notices in connection with such review unless
expressly stated otherwise.
5.9 GUARANTOR
No Guarantor or any predecessor in title of the Tenant shall have any right
to take part in the agreement or determination of the Yearly Rent upon
review.
6. LANDLORD'S COVENANTS
The Landlord covenants with the Tenant (but not so as to bind or impose any
liability upon the Landlord after the Landlord has parted with the
reversion immediately expectant on the Term):
6.1 QUIET ENJOYMENT
that the Tenant paying the rents and other sums payable under this Lease
and performing and observing the covenants conditions and agreements
contained in this Lease and on the Tenant's part to be performed and
observed shall and may peaceably and quietly hold and enjoy the Premises
during the Term without any interruption or disturbance from or by the
41
Landlord or any person or persons lawfully claiming through under or in
trust for the Landlord:
6.2 INSURANCE
subject to the Tenant paying the whole or the appropriate proportion of the
premium as provided in this Lease:
6.2.1 to insure the Premises against loss or damage by the Insured Risks
in an insurance office or with underwriters of repute in their Full
Reinstatement Cost (subject to such exclusions excesses limitations
conditions and qualifications as the insurers may require) and for
three years (or such longer period as the Landlord may from time to
time reasonably require) loss of Yearly Rent together in each case
with value added tax if the Landlord so determines in its absolute
discretion; and
6.2.2 in case of destruction or damage by any Insured Risk (save where any
insurance money shall be wholly or partly irrecoverable by reason
solely or in part of any act default or omission by the Tenant or
any underlessee licensee or visitor to apply all policy money
received under or by virtue of any such insurance (other than for
loss of Yearly Rent) in rebuilding or reinstating the Premises to
provide accommodation reasonably comparable to that afforded by the
Premises prior to such destruction or damage (although the Landlord
shall not be obliged to rebuild or reinstate the Premises in
accordance with the previous sections elevations and specifications)
and all the terms of this Lease shall apply to such accommodation
(the Parties making such variations to the terms of this Lease as
the Landlord shall reasonably require to give effect To this
provision) provided that:
6.2.2.1 if any national or local or public or other authority shall
refuse permission or otherwise prevent such
42
rebuilding or reinstatement all insurance money shall be the absolute
property of the Landlord without the Landlord being required or obliged to
appeal against any such refusal of permission or the purported exercise of
any power to prevent any such rebuilding or reinstatement; and
6.2.2.2 if the Premises are destroyed or so seriously damaged by
any Insured Risk as to require (in the opinion of the
Landlord's Surveyor whose decision shall be final and
binding upon the Parties) substantial reconstruction then
the Landlord may at any time within six months after such
damage or destruction give to the Tenant six months'
notice in writing to determine this Lease and immediately
upon the expiry of that notice this demise shall
determine but without prejudice to the rights and
remedies of any Party against any other in respect of any
antecedent claim or breach of covenant and all insurance
money shall be the absolute property of the Landlord.
6.3 To complete at its own cost to the reasonable satisfaction of the
Tenant and as soon as shall be practicable after the date of this
Lease the works described in the Schedule of Works attached to this
Lease and in the course of doing so to cause the minimum amount of
interference with the fitting out of the Premises by the Tenant.
7. MISCELLANEOUS
The following conditions shall apply:
7.1 RE-ENTRY
the Landlord and any persons authorised by the Landlord may re-enter into
and upon the Premises in the event that:
43
7.1.1 the rents reserved or any other sums made payable by the Tenant
under this Lease or any part of such rents or other sums shall
respectively be in arrear for fourteen days after the same shall
become due (whether legally demanded or not): or
7.1.2 there is any breach or non-observance of any of the obligations on
the part of the Tenant contained in this Lease or in any licence
approval or consent given by the Landlord to the Tenant in relation
to the Premises or in any deed supplemental to this Lease or by
which this Lease may varied: or
7.1.3 any execution or distress is levied upon any asset of the Tenant and
is not discharged within fourteen days: or
7.1.4 the Tenant or any Guarantor or (where the Tenant or any Guarantor
comprises more than one person) any one or more of them (being a
corporation) shall enter into liquidation whether compulsory or
voluntary (not being merely a voluntary liquidation whilst solvent
for the purpose of reconstruction) or have a Receiver or
Administrator Administrative Receiver appointed of all or any assets
(or any application for such appointment Is made); or
7.1.5 the Tenant or any Guarantor or (where the Tenant or any Guarantor
comprises more than one person) any one or more of them( being an
individual or individuals) shall enter into any composition with the
Tenant's creditors or commit any act of bankruptcy or be adjudicated
bankrupt: or
7.1.6 the Premises shall be unoccupied or vacant for a period of three
consecutive months,
7.1.7 whereupon this demise shall immediately determine but without
prejudice to any rights or remedies which may then have accrued to
the Landlord in
44
respect of the nonpayment of the rents reserved or other sums made payable
by this Lease or any breach or non-observant or non-performance of any of
the covenants conditions and agreements contained in this Lease:
7.2 RENT ABATEMENT
if at any time during the Term the Premises or any part of the Premises
shall be damaged or destroyed by any Insured Risk so as to be unfit for
occupation and use then so long as the policy of insurance for the time
being in force shall not have been vitiated or payment of the policy money
withheld or refused in whole or in part by reason of any act default or
omission of the Tenant or any underlessee licensee or visitor the Yearly
Rent or a fair proportion according to the nature and extent of the damage
sustained shall be suspended until the Premises shall again be rendered fit
for occupation and use or until the money received by the Landlord in
respect of loss of rent insurance shall have been exhausted whichever
period shall be the shorter and any dispute between the Landlord and the
Tenant concerning this provision shall be Referred to Arbitration:
7.3 EXCLUSION OF LIABILITY
7.3.1 the Landlord shall not be liable to the Tenant or the Tenant's
underlessees agents servants invitees licensees or others for any
injury accident loss damage or inconvenience which may at any time
during the Term be done occasioned or suffered to or by any such
person or to the Premises or any property on the Premises by reason
of or in consequence of any interruption in the provision of
Utilities or any defect in or the defective working stoppage or
breakage of any apparatus or Conduits in the Premises or in any
adjoining property of the Landlord or the defective state and
condition of the Premises or any adjoining property of the Landlord:
7.3.2 the Landlord shall not be liable to the Tenant in respect of any
failure by the Landlord to perform any of the Landlord's obligations
to the Tenant in this Lease (with the exception
45
only of the Landlord's covenant to insure) unless and until the
Tenant has notified the Landlord in writing of the facts giving rise
to such failure and the Landlord has failed within a reasonable
period to remedy the same nor shall the Landlord be liable to
compensate the Tenant for any loss or damage sustained by the Tenant
before such reasonable period has elapsed:
7.3.3 the Landlord shall not be liable to the Tenant in respect of any act
or omission of any kind except as expressly provided in this Lease:
7.4 NOTICES
7.4.1 any notice or demand to be served on the Tenant or any Guarantor
under this Lease shall be validly served if sent by registered or
recorded delivery post to the registered office or the last known
address of such person or to the Premises or if delivered by hand to
the Premises:
7.4.2 any notice to be served on the Landlord under this Lease shall be
validly served if sent by registered or recorded delivery post to
the registered office of the Landlord (or where the Landlord is an
individual his last known address):
7.5 STATUTORY COMPENSATION
any statutory right of the Tenant to claim compensation from the Landlord
whether on vacating the Premises or otherwise is excluded to the extent
permitted by law;,
7.6 SUPERIOR LEASES
7.6.1 the powers rights matters and discretions granted and reserved to
the Landlord under this Lease shall also be granted and reserved to
or exercisable by any Superior Landlord its
46
servants agents and workmen to the extent required by any superior
lease or mortgage;
7.6.2 the Landlord shall be entitled to withhold its approval or consent
under this Lease in an instance where any Superior Landlord's
consent is required and where such approval or consent is applied
for and is not given:
7.7 LANDLORD AS TENANT'S AGENT
the Tenant irrevocably appoints the Landlord to be the Tenant's agent to
store and/or dispose of any of the Tenant's fixtures and fittings furniture
and effects left by the Tenant on the Premises for more than seven days
after the expiry or sooner determination of the Term on any terms which the
Landlord thinks fit without the Landlord being liable to the Tenant save to
account for the net proceeds of sale less the cost of storage (if any) and
any other expenses reasonably incurred by the Landlord;
7.8 ADJOINING PROPERTY
nothing contained in this Lease shall confer on the Tenant any right to the
benefit of or to enforce any covenant or agreement contained in any lease
or other instrument relating to any adjoining property of the Landlord or
which would limit or affect the right of the Landlord to deal with Such
property at any time in any manner which may be thought Pit:
7.9 DISTRESS
all sums due and payable under this Lease shall be recoverable if the
Landlord so wishes by distress as if the same formed part of the rents
reserved under this Lease:
7.10 SET OFFS
the Tenant waives any and all existing and future counterclaims and set-
offs against any payments due to the Landlord under this Lease and agrees
to against any payments due to the Landlord under this Lease and agrees to
47
make all such payments in full irrespective of any equity or set-off or
counterclaim of the Tenant of any nature:
7.11 EXCLUSION OF RIGHTS NOT GRANTED
nothing contained or referred to in this Lease shall operate either
expressly or impliedly to grant to or confer upon the Tenant the benefit of
any easement right or privilege save only as expressly granted to or
conferred upon the Tenant in Schedule 2:
7.12 NO WARRANTY AS TO PERMITTED USE
the Landlord does not warrant that the Premises may lawfully be used for
the Permitted Use or for any other purpose:
7.13 RETURN OF INSTALLMENT OF YEARLY RENT
the return to the Tenant of any installment of Yearly Rent paid by Bankers
standing order or direct debit as soon as reasonably practicable after its
receipt shall be treated as a refusal by the Landlord to accept that
payment of Yearly Rent and the receipt of any such installment of Yearly
Rent so returned shall not give rise to a presumption that the Landlord has
waived its rights of forfeiture under this Lease;
7.14 ENGLISH LAW
7.14.1 this Lease shall be governed by and construed in all respects in
accordance with English law and the Parties submit themselves to the
jurisdiction of the English Courts:
7.14.2 nothing contained in this Lease shall limit the right of any Party
to take proceedings against any other Party in any other court of
competent jurisdiction nor shall the taking of proceedings in one
jurisdiction preclude the taking of proceedings in any other
jurisdiction whether concurrently or not.
48
7.15 TENANT'S OPTION TO DETERMINE
7.15.1 if the Tenant shall wish to determine the Term on the 6th day of
March 2001 and shall have given to the Landlord not less than 366
days previous written notice to that effect and shall up to the time
of such determination pay the rents reserved by and substantially
perform and observe the covenants contained in this Lease and then
immediately upon the 6 day of March 2001 the Term shall determine
but without prejudice to any rights or remedies which may then have
accrued to the Landlord in respect of the non-payment of the rents
reserved or other sums made payable by this Lease or any breach or
non-observance or non-performance of any of the covenants conditions
and agreements contained in this Lease.
7.15.3 the Parties hereby agree that on any application by the Tenant to
the Court for a new tenancy pursuant to the provisions of the
Landlord and Tenant Act 1954 the Tenant will not seek and will not
accept the inclusion of a Clause in the same terms or similar To
this Clause 7.15 in any new tenancy of the Premises.
7.16 CERTIFICATE AS TO AGREEMENT FOR LEASE
The Parties certify that there is no Agreement for Lease To which this
Lease gives effect.
8. RECEIVER
8.1 The Receiver was appointed Law of Property Act 1925 Receiver of the
Landlord's interest in the freehold land and buildings registered at H. M.
Land Registry under title number BK 255580 on 4 May 1994 by Xxxx Xxxxxx
Bank Limited (the "Bank") pursuant to a legal mortgage dated 28th July 1992
and made between (1) the Landlord and (2) the Bank ("The Security").
49
8.2 The Tenant acknowledges that it has been supplied with a copy of The
Security and the appointment of the Receiver and shall raise no requisition
enquiry or objection in relation thereto.
8.3 After taking such advice as it considers necessary the Tenant:
8.3.1 releases the Receiver from any personal liability which might arise
by virtue of Section 37(l) of The Insolvency Act 1986 or might
otherwise arise directly or indirectly under this Lease or under any
deed or other document executed pursuant to this Lease or in or
under any associated or contractual agreement or arrangement:
8.3.2 agrees and acknowledges that the foregoing provisions of this Clause
8 and of any other provision of this Lease are fair and reasonable
in the present circumstances and accord with normal practice with
regard to companies which are or are likely to become unable to pay
their debts.
9. GUARANTOR'S COVENANTS
9.1 The Guarantor covenants with the Landlord in the terms set out in Schedule
5
9.2 The obligations of the Guarantor pursuant to Muse 9.1 and Schedule 5 shall
cease when there is produced to the Landlord certified true copies of
audited accounts for Business Objects (U.K.) Limited showing that in each
of the three consecutive accounting periods of that Company none of which
periods shall be for longer than for one year (the third such period ending
no more than six months before the production of such certified copy
audited accounts) the net profits before tax for each such accounting
period constitute a sum which is at least three times the Yearly Rent
IN WITNESS of which this deed has been executed and is delivered on the date
appearing as the date of this deed.
50
SCHEDULE 1
THE PREMISES
Sun Court, Moorbridge Road. Maidenhead, Berkshire shown for the purposes of
identification only edged in red on the Plan numbered 1 attached which shall
include where they exist and where the context so admits for the purpose of
obligation as well as grant:
1. all additions alterations and improvements to the Premises made at any
time.
2. all landlord's fixtures and fittings and plant equipment and machinery
including.
SCHEDULE 2
RIGHTS GRANTED
1. The right during the Term (so far as the Landlord has power to grant the
same and subject to the Landlord's reasonable regulations from time to
time) for the Tenant in common with the Landlord those authorised by the
Landlord and all others having the like right from time to time to the free
running of Utilities through the Conduits designed for that purpose passing
in through or under any adjoining property of the Landlord provided that
the Landlord may at any time stop up remove alter or make connections to
the Conduits if the Landlord makes available to the Tenant where
appropriate suitable alternative Conduits.
2. The right to change the name of the Building subject to the consent of the
Landlord which shall not be unreasonably withheld or delayed and subject
further to the consent of any competent public authority which may be
necessary.
SCHEDULE 3
EXCEPTIONS AND RESERVATIONS
1. ADJOINING PROPERTY
The right for the Landlord and all persons authorised by the Landlord from
time to time to rebuild alter or develop any adjoining property of the
Landlord in such manner as the Landlord may think fit despite any resulting
interference to the access of light or air to the Premises and the right to
use any adjoining property
51
of the Landlord for any purpose to the intent that nothing contained in
this Lease shall by implication of law or otherwise operate to confer upon
the Tenant any easement right or privilege over any adjoining property of
the Landlord which might restrict or prejudicially affect its future
rebuilding alteration or development nor shall the Tenant be entitled to
compensation for any damage or disturbance caused by or suffered through
any such use rebuilding alteration or development.
2. ENTRY BY THE LANDLORD
The right for the Landlord and all persons authorised by the Landlord from
time to time with or without workmen at any time during the Term and upon
giving not less than 48 hours prior written notice (except in case of
emergency when no advance notice shall be required) to enter upon the
Premises for the purpose Of;
2.1 developing repairing altering inspecting or maintaining adjoining or
neighbouring property or any party walls services Conduits or other things
relating to such property;
2.2 carrying out inspections or surveys of the Premises (and taking samples and
making trial bores) including for the purposes of monitoring compliance by
the Tenant with its obligations in this Lease:
2.3 carrying out works or services which the Landlord must or may carry out
under the terms of this Lease: and
2.4 exercising any other rights granted or reserved to the Landlord by this
Lease.
the Landlord or xxxxxxx making good all and any damage done to the Premises
3. UTILITIES
The free passage and running of Utilities through Conduits to and from
adjoining or neighbouring property and the right to connect into them
together with the right on not less than 48 hours prior written notice
(except in case of emergency when no advance notice shall be required) to
enter upon the Premises to lay
52
maintain repair and renew Conduits and lay or install new Conduits and
making good all damage done to the Premises.
4. SUPPORT
The support and protection from the Premises enjoyed by adjoining or
neighbouring property.
5. BOUNDARY WALLS
The right for the Landlord and all persons authorised by the Landlord from
time to time to build onto or into any boundary or perimeter wall or fence
of the Premises.
6. SCAFFHOLDING
The right to erect scaffolding on over or around the Premises in the
exercise of any of the rights excepted and reserved to the Landlord in this
Schedule.
SCHEDULE 4
MATTERS TO WHICH THE PREMISES ARE SUBJECT
1. SUBSTITUTING RIGHTS
All subsisting rights easements and privileges belong to or enjoyed by
adjoining or neighbouring property.
2. RELEVANT DOCUMENTS
The covenants stipulations and other matters specified or referred to in
Title Number BK255580 and in a licence dated 27th April 1989 (1) Xxxxxx
Laboratories Limited and (2) Queensgate Land (Moorbridge) Limited so far as
the same affect the Premises and are subsisting and capable of being
enforced.
SCHEDULE 5
GUARANTOR'S OBLIGATIONS
53
1. PRIMARY OBLIGATIONS
The Guarantor covenants with the Landlord as a primary obligation:
1.1 that the Tenant or the Guarantor shall at all times during the Term duly
perform and observe all the covenants conditions and other provisions on
the part of the Tenant to be observed and performed in this Lease
(including the payment of the Yearly Rent and all other sums from time to
time payable under this Lease) in the manner and at the times specified and
shall indemnify the Landlord against all actions proceedings losses
liabilities cost damages expenses claims and demands sustained by tile
Landlord in any way directly or indirectly arising out of or resulting from
any default by the Tenant in the performance and observance of any such
covenants conditions and other provisions:
1.2 not to claim in any liquidation bankruptcy administration receivership
composition or arrangement of the Tenant in competition with the Landlord
and to remit to the Landlord the proceeds of all judgments and all
distributions it may receive from any liquidator trustee in bankruptcy
administrator administrative receiver receiver or supervisor of the Tenant
and to hold for the sole benefit of the Landlord all security and rights
the Guarantor may have over assets of the Tenant while any liabilities of
the Tenant or the Guarantor to the Landlord remain outstanding:
1.3 that if a liquidator trustee in bankruptcy or other competent person shall
disclaim or surrender this Lease or this Lease shall be forfeited or the
Tenant shall die or cease to exist (the date on which any such event occurs
being referred to in this Schedule as "the Relevant Date") then the
Guarantor shall (if the Landlord so requires by notice in writing given to
the Guarantor within six months after the Relevant Date) accept from and
execute and deliver to the Landlord a counterpart of a new lease of the
Premises for a term commencing on the Relevant Date and continuing for the
remainder of the Term such new lease to be at the cost of the Guarantor and
to be at the same rents and subject to the same covenants conditions and
provisions as are contained in this Lease: and
1.4 that if the Landlord shall not require the Guarantor To take a new lease
the guarantor shall nevertheless upon demand pay to the Landlord a sum
54
equal to the Yearly Rent and all other sums that would have been payable
under this Lease in respect of the period from and including the Relevant
Date until the expiry of twelve months after the Relevant Date or until the
Landlord shall have granted a lease of the Premises to a third party
(whichever shall first occur) in addition and without prejudice to the
Guarantor's other obligations under this Lease.
2. GUARANTOR'S LIABILITY
The Guarantor is jointly and severally liable with the Tenant (whether
before or after any disclaimer by a liquidator or trustee in bankruptcy)
for the fulfilment of all the Tenant's covenants conditions and other
provisions contained in this Lease and the Landlord in the enforcement of
its rights may proceed against the Guarantor as if the Guarantor was named
as the Tenant in this Lease.
3. WAIVER OF RIGHTS
The Guarantor waives any right to require the Landlord to proceed against
the Tenant or to pursue any other remedy of any kind which may be available
to the Landlord before proceeding against the Guarantor.
4. MATTERS NOT AFFECTING LIABILITY
None of the following (or any combination of them) shall release determine
discharge or in any way lessen or affect the liability of the Guarantor as
principal debtor under this Lease or otherwise prejudice or affect tile
liability of tile Guarantor to accept a new lease in accordance with the
provisions of this Schedule:
4.1 any neglect delay or indulgence or extension of time given by the Landlord
in enforcing payment of the Yearly Rent or any other sums due under this
Lease or in enforcing the performance or observance of any of the Tenant's
covenants conditions or other provisions contained in this Lease:
4.2 any refusal by the Landlord to accept Yearly Rent tendered by or on behalf
of the Tenant following a breach of covenant by the Tenant:
55
4.3 the expiry or sooner determination of the Term:
4.4 any variation of the terms of this Lease (including any reviews of the
Yearly Rent payable under this Lease) or the transfer of the Landlord's
reversion or the assignment of this Lease;
4.5 any change in the constitution structure or powers of either the Tenant the
Guarantor or the Landlord or the liquidation administration receivership or
bankruptcy (as the case may be) of either the Tenant or the Guarantor or
the death or dissolution of the Tenant:
4.6 any legal limitation or any immunity disability or incapacity of the Tenant
(whether or not known to the Landlord) or the fact that any dealings with
the Landlord by the Tenant may be outside or in excess of the powers of the
Tenant: or
4.7 any other act omission matter or thing of any kind by virtue of which (but
for this provision) the Guarantor would be exonerated either wholly or in
part (other than a release under seal given by the Landlord).
5. SUCCESSORS
This guarantee shall subsist for the benefit of the successors and assigns
of the Landlord under this Lease without the necessity for any assignment
of it.
( SIGNED by XXXXX XXXX XXXXXXX
( in the name of X. X. XXXXX
( PROPERTIES LIMITED (in
( Administrative Receivership)
( without personal liability and
( its attorney pursuant to powers
( granted to him by statute and
( legal mortgage dated 28th July
( 1992 made between (1) X. X. Xxxxx
( Properties Limited (in
( Administrative Receivership) and
( (2) Xxxx Xxxxxx Bank Limited in
( the presence of:
[ILLEGIBLE] /s/ XX Xxxxxxx
[ILLEGIBLE] XX Xxxxxxx
[ILLEGIBLE] 23 Scholars Way
[ILLEGIBLE] Hatfield Herts
[ILLEGIBLE] Director
56
[COMPANY LOGO]
XXXXXXX XXXXXXXXX
DATED 6 March 1996
X.X. XXXXXXX
- and -
X.X. XXXXX PROPERTIES LIMITED
(in Administrative Receivership)
- and -
BUSINESS OBJECTS (U.K.) LIMITED
- and -
BUSINESS OBJECTS SA
LEASE
Sun Court. Moorbridge Road, Maidenhead, Berkshire
Xxxxxxx Xxxxxxxxx
00 Xxxxxxxx Xxxxxx
Xxxxxx XXX 0XX
Tel: 0000 000 0000
H.M. LAND REGISTRY
[NOT SHOWN]
PLAN 2
[NOT SHOWN]
SUN COURT - MAIDENHEAD
SCHEDULE OF LANDLORDS WORKS
22/02/96
MAIDSCH5.WPS
MANAGING AGENT
The flat roof area over the main stairs of Block I are to be cleaned of xxxx
growth.
All H&V plant is to be run to check operational status.
Repair damaged car park gate operating mechanism.
Any blown lamps or tubes are to be replaced in luminaires.
Clean raised pond/fountain area in courtyard.
Clear all loose rubbish from all service cupboards and service shafts between
toilet blocks. Remove rubbish from gardener's room under rear stair to Block 1.
Provide chlorination certificate for water storage systems.
22/02/96
MAIDSCH5.WPS
ENVIRONMENTAL ENGINEERING SERVICES
Repair or replace severely damaged pipework insulation in both plant rooms for
heating and chilled water pipework.
Fit missing grille to staircase smoke vent outlet at head of main stairs in
Block 1,
Replace seven lower sections of rainwater down pipes on the north and east
elevations, including a pipe located by entrance drive outside the sliding gate.
Check that all condensate drains serving F.C.U.s in the ground floor of both
blocks, drains away from all units.
Check that vapour proof lagging to chilled water pipework in ground floor
ceiling voids of both Blocks is intact,
Divert the small warning pipes serving both roof cold water storage tanks
discharges to a nuisance point. i.e. where a discharge can be seen from ground
level.
Fit non return air valves to any open SVP's located within roof space above
toilet core areas.
XXXXXX ELECTRICAL
Replace missing cable trunking covers in service shafts.
Fit circuit schedules adjacent to each distribution board.
22/02/96
MAIDSCH5.WPS
LOOSE MATERIALS
Supply a box of toilet ceiling tiles
Supply a box of office area ceiling tiles
Supply a box of corridor area ceiling tiles
Supply 2 rolls of 50 x 1.2m rolls of vinyl wall covering as existing pattern
(ordered).
J XXXXXXX & SONS
Refix carpet risers in main stairs in Block 1.
22/02/96
MAIDSCH5.WPS
X X XXXXX
Replace cracked 'Cox' dome on roof access hatch on Block 1.
Fill all holes in external brickwork which are greater than screw fixing using
ground brick and cement as filler so as to match existing colour.
Repair small area of brick pointing on west elevation of Block 1, by Xxxxxxxxx's
office.
Rub down and repaint air grilles in external wall at north end of both Blocks.
Rub down and paint with black bitumastic paint the SVP adjacent to a column in
the undercroft parking area (north end under link)
Make good holes through 1st floor slab where pipework was removed from wall
mounted F.C.U.s using dry sand/cement mix or dense rockwool.
Refix loose section of vinyl wall covering at lst floor level in the secondary
staircase of Block 2.
Refix loose laminate trim to vanity unit in female w.c. 1st floor Block 2.
Fit overhead door closer, intumescent strips to frame and ease door fit to fire
exit to secondary stair Block 2, ground floor.
Door from ground floor office to secondary stair in Block I to be fitted with
overhead door closer and intumescent strips to frame.
Fit missing top leaf lock to door at 1st floor Block I leading to annex.
Within chiller room in each roof plant room clean off two air handling units
currently painted and touch-in any defective paint areas using black bitumastic
paint. For the two remaining unpainted air-handling units rub down internal and
external rust spots and treat with Galavafroid paint.
Within chiller room in each plant room paint boarding covering wall plate (below
louvre opening) with 2 coats wood preservative paint, such as Crown
'Timberguard' or similar.
Take down 9 metre section of north boundary wall to base level and rebuild using
existing bricks. Allow for quantity of new bricks to replace any existing which
are unusable. Form 12mm expansion gap at each end where section joins existing.
On eastern wall of main car park disc cut existing mid-point expansion joint in
new section to form 12mm wide joint for full height. Where new section joins to
old section form similar 12mm expansion joint for full height. Allow to rebed
approx 24 loose coping bricks.
Provide strips of lay-in prismatic sheet to 1st floor female w.c. Block 2 and
1st floor female Block 2. (Liaise with Xxxxxx Electrical for material supply)
Apply fire casing to exposed metal beams in all electrical riser cupboards.
Rub-down, prime bare wood, apply undercoat and two coats of gloss paint to gas
meter cupboard outside Block 1
Hack-off loose plaster -to Block 1 staircase wall. Treat surface, replaster and
redecorate.
Reapply adhesive to small loose sections of wallpaper.
NOTE: Door furniture to be as supplied by Messrs Comyn & Xxxxx, to match
existing.
DATED
- and -
______________________________
AUTHORISED GUARANTEE AGREEMENT
- relating to -
to a Lease made between
(1) X.X. Xxxxxxx
(2) Business Objects (U.K.) Limited
(3) Business Objects SA
relating to premises known as
Sun Court Moorbridge Road Maidenhead Berkshire
Xxxxxxx Xxxxxxxxx
00 Xxxxxxxx Xxxxxx
Xxxxxx XXX 0XX
Tel: 0 000 000 0000
DEED dated 1996
BETWEEN
(1) [ ]OF[ ]
(the "landlord")
(2) [ ](company registration number[
[)whose registered office is at[ ]
(the guarantor")
WITNESSES as follows:-
1. Definitions and Interpretation
------------------------------
1.1 In this Deed, unless the context other-wise requires, the following words
and phrases have the following meanings:-
1.1.1 "Act"
---
means the Landlord and Tenant (Covenants) Act 1995.
1.1.2 "Assignee"
---------
means ](company registration number
[ [)whose registered office is at [
].
1.1.3 "Lease"
-----
means a lease of the Premises dated 1996 and made
between (1) X.X. Xxxxxxx (2) Business Objects (U.K.) Limited and
(3) Business Objects SA and includes any deeds or documents
supplemental to it whether or not expressed to be so.
1
1.1.4 "Premises"
--------
means the Premises briefly known as Sun Court Moorbridge Road
Maidenhead Berkshire and more particularly described in the
Lease.
1.2 The Clause headings in this Deed (except for the definitions) are for
ease of reference and are not to be used for the purposes of construing
this Deed
1.3 References in this Deed to Clause numbers mean the Clauses of this Deed.
1.4 Obligations undertaken by more than one person are joint and several
obligations.
1.5 Words importing persons include firms companies and corporations
and vice versa.
1.6 Words importing one gender will be construed as importing any other
gender.
1.7 Words importing the singular will be construed as importing the plural
and vice versa.
1.8 Words and phrases defined in the Lease have the same meanings in this
Deed.
1.9 Unless the context otherwise requires, references to any statute include
all regulations and orders made under the relevant statute and any
statute, regulations or orders amending, consolidating or replacing it or
them in force from time to time.
1.10 In this Deed, the expression "tenant covenants" is to be construed
consistently with the Act.
2. Recitals
--------
2.1 By the Lease the Premises were demised to Business Objects (U.K.) Limited
[the Guarantor] for a term of twenty five years from
1996 subject to the payment of the rent reserved by and observance and
performance of the covenants and conditions contained in the Lease.
2.2 The reversion immediately expectant on the term of years granted by the
Lease [remains] [is now] vested in the Landlord and the unexpired residue
of the term of years granted by the Lease [remains] [is now] vested in the
Guarantor.
2.3 The Guarantor wishes to assign the Lease to the Assignee and, under the
Lease, the consent of tile Landlord is required to such assignment.
2.4 By a licence to assign dated [with the same date as this deed] entered into
by the Landlord (1) the Guarantor (2) and the Assignee (3) the Landlord has
granted consent to the assignment on condition that the Guarantor enters
into this Deed to guarantee the performance by the Assignee of the tenant
covenants of the Lease.
2.5 The Guarantor has agreed to enter into this Deed pursuant to that
condition.
3. Guarantor's Covenants
---------------------
3.1 The Guarantor COVENANTS with the Landlord as principal obligor as follows:-
3.1.1 That the Assignee will pay the rents reserved by and observe and perform
the tenant covenants of the Lease and that if the Assignee defaults in the
payment of any of the rents reserved by the Lease on the due dates or in
observing or performing any of the tenant covenants of the Lease the
Guarantor will pay the rents or observe or perform the tenant covenants in
respect of which the Assignee has defaulted and the Guarantor will make
good to tile Landlord on
3
demand all losses costs damages and expenses resulting from any such
default.
3.1.2 That if a liquidator or trustee in bankruptcy of the Assignee disclaims
the Lease the Guarantor will at the request of the Landlord made within
three months after such disclaimer take from the Landlord a lease of the
Premises for a term equal to the residue of the [Term] which would have
remained had there been no disclaimer at the same rents and subject to
the tenant covenants of the Lease such lease to take effect from the
date of such disclaimer and in such case the Guarantor will pay the
costs of such new lease and execute and deliver a counterpart of it to
the Landlord.
3.2 The Guarantor's obligations under Clause 3.1 commence on the date on which
the leasehold interest under the Lease is assigned to the Assignee and do
not bind the Guarantor in relation to any time after either
3.2.1 the Assignee is relased from the tenant covenants of the Lease in
accordance with the Act (but without prejudice to any liability of the
Guarantor incurred before the time of such release) or
3.2.2 the Assignee is able to demonstrate by production of accounts to the
Landlord that for each, of three consecutive financial periods being in
aggregate not less than three years and at least one of which
consecutive financial periods shall be after the date of this Deed its
accounts indicate that it has achieved net profits before tax (meaning
the net trading profits before tax for a period of 12 months or in the
case of any other period the annualised rate of net profit before tax of
the Assignee arising from its ordinary trading activities but excluding
any profit from the sale of fixed assets businesses or investments or
other exceptional and/or extraordinary items or items which would have
been classified as extraordinary and/or exceptional items before the
introduction of Accounting Standard FRS3 after deduction (on an
annualised basis) of deprecation interest charges and Al other expenses
or charges as disclosed by the accounts of the Assignee for the
financial periods in question which equal to or
4
exceed the aggregate of the total amount likely in the reasonable opinion
of the Landlord to be payable during the period of three years from the
date of production of accounts to the Landlord by way of rents insurance
and service charges and all other taxes and outgoings payable by the Tenant
under the Lease and for the purposes of this clause "accounts" all be
audited profit and loss accounts drawn up for the relevant periods in
accordance with the Companies Act 1985 (as amended) or any statutory
amendment or re-enactment of it for the time being in force) and to the
relevant Statements of Standard Accounting Practice applicable to the
United Kingdom. (or in a case other than that of a company incorporated in
the United Kingdom accounts prepared or re-stated in similar form).
3.3 None of the following shall release, discharge or affect the liability of
the Guarantor as principal obligor or otherwise prejudice or affect the
liability of the Guarantor to accept a new lease pursuant to Clause 3.1.2:
3.3.1 any neglect delay or indulgence or extension of time given by the
Landlord in enforcing payments of the rents or the performance or
observance of the tenant covenants of the Lease-,
3.3.2 any variation of the terms of the Lease;
3.3.3 any change in the constitution structure or powers of the Assignee or the
Guarantor, the liquidation administration receivership or bankruptcy (as
the case may be) of either tile Assignee or the Guarantor or the Assignee
ceasing to exist;
3.3.4 any legal limitation or immunity disability or incapacity of the Assignee
(whether or not known to the Landlord) or the fact that any dealings with
the Landlord by the Assignee may be outside or in excess of the powers of
the Assignee: or
3.3.5 any other act omission matter or thing of any kind by virtue of which
(but for this provision) the Guarantor would be discharged in whole or in
part.
5
4. Scope of this Guarantee
-----------------------
4.1 The intention of the parties to this Deed is that it should be an
authorised guarantee agreement within the meaning of the Act.
4.2 If any provision, or any part of any provision, has the effect of causing
this Deed not to be such an authorised guarantee agreement, that provision
or that part is to be treated or all purposes as having been modified
(including, if necessary, by its omission) to such extent as will avoid
this effect.
IN WITNESS of which the parties have executed this Deed which is intended to
be and is delivered the day and year first written above but not before.
Original
--------
( SIGNED by XXXXX XXXX XXXXXXX
( in the name of X. X. XXXXX
( PROPERTIES LIMITED (in
( Administrative Receivership)
( without personal liability and
( its attorney pursuant to powers
( granted to him by statute and
( legal mortgage dated 28th July
( 1992 made between (1) X. X. Xxxxx
( Properties Limited (in
( Administrative Receivership) and
( (2) Xxxx Xxxxxx Bank Limited in
( the presence of:
6
23/02/96
SCHDCON3.WPS
SUN COURT, MAIDENHEAD
EXTERNAL WALLS
Chipped corners on brickwork at north end of Bldg I where timber bollards have
been installed.
Uneven brickwork is noted adjacent to main entrance which may have been laid
after main wall was built.
An area of rebuilt brickwork is noted adjacent to window openings at north end
of Bldg 1.
Partial spoiling noted at Moorbridge Road escape door threshold Slight chipped
brickwork noted adjacent to escape door openings.
DOORS
Scratches to paintwork on Main entrance doors noted.
WINDOWS
Window sill at ground floor on east side of Block 2 is noted as dented.
Window repairs are noted where mastic is applied to framing joints.
ROOF SPACE OVER BLOCK 2
Xxxx and cement fillet to door threshold between boiler room and chiller area
noted as untidy.
Ponding noted in asphalted area within chiller room.
ESCAPE STAIRCASE, BLOCK I
Decorations are noted as scuffed,
Wall plaster at first floor level is noted as having uneven finish.
Cupboard below staircase area is noted as unfinished condition.
SITE
Minor ponding noted to Tarmacadam finish to car park.
BOUNDARY WALLS
Brickwork to side wall of building, by entrance drive, has surface damaged to
brickwork which is noted.
[COMPANY LOGO]
ASB/CEW,
4th March 1996.
Xxxxxx Xxxxxxxx Solicitors,
Pickfords Wharf,
Clink Street,
LONDON, SEL. 9DG.
For the attention of Mr. X. Xxxxx.
[STAMPED NOT SHOWN]
Dear Sirs,
RE: QUOTATION NO. 3059/2877,
SUN COURT - MAIDENHEAD.
We have pleasure in submitting our specification for the new raised floor, as
follows:
To supply and Ex:
----------------
Floor System: Eurodek full access floor system to withstand a uniformly
distributed load of 5 kn/m2.
Panels: 600 x 600 x 300mm nominal panels to BS5669.
Panel The floor will be left ready to receive carpet tiles by
Floorcovering: others.
Pedestals: l6mm diameter heavy duty pedestal with adjustment of 26mm.
Pedestal head type P35 LM24 diecast aluminium to restrain
panels from lateral movement.
Pedestal Fixings: 100 x 100mm galvanised pedestal base plates will be fixed to
a suitable structural slab with adhesive.
Floor Void Height: 90mm from the highest point of structural slab (void height
varies considerably, see note 3 below).
Panel Lifters: We will supply 0.Xx. single cup suction pads.
Schedule of Quantities and Rates:
--------------------------------
Flooring to Ground & First Floor areas
[COMPANY LOGO]
ASB/CEW,
4th March 1996.
XXXXXX XXXXXXXX SOLICITORS
--------------------------
1. Shown on our Drawing No. 0397 and 0398- 1. Approx. qty
1664m2.
2. To factory form cut outs for electrical outlet boxes. A
sample box is required to use as a template.
000.Xx.
3. Sub floor levels: We have surveyed the existing structural
slab levels and proposal allows for manufacture of varying
length pedestals to allow for all the variations in levels
of the structural dab.
If you have any questions concerning the above, please do not hesitate to call.
Yours sincerely,
for and on behalf of
THE INTERIORS GROUP
/s/ Xxxxxx Xxxxx
XXXXXX XXXXX,
Director.
