EXHIBIT 10.4
DATED 1993
EAST MERCIA DEVELOPMENTS LIMITED
(In Receivership)
- and -
STARPAK INTERNATIONAL, LTD.
- and -
STARPAK INC
L E A S E
relating to
Block A Sovereign Xxxx
Xxxxxx Road
Hartlepool Xxxxxxxxx
Xxxx Xxxxxx Broomhead Date of Original: 06.05.93
000 Xxxxxx Xxxx Date of Version: 02.06.93
LONDON Version No.: 3
XX0X 0XX
Tel: 000 000 0000
Fax: 000 000 0000
THIS LEASE which is made the 17th day of June 1993 BETWEEN
(1) EAST MERCIA DEVELOPMENTS LIMITED (IN RECEIVERSHIP) of 00 Xxxxx Xxx Xxxx
Xxxxxx XX0 acting by NIGEL XXXXXXX XXXXXXX and XXXXX XXXXXXX XXXX both x/x
Xxxxxx Xxxxxxxx xx Xxxxxxxx Xxxxx 00x Xxxxxx Xxxxxx Xxxxxx X0 ("xxx
Receivers") ("the Landlord") and
(2) STARPAK INTERNATIONAL, LTD. whose office is at Block A Sovereign Park
Hartlepool Cleveland ("the Tenant") and
(3) STARPAK INC of 000 Xxxxxxxx Xxxxxx Xxxxxx Xxxxx Xxxxxx Xxxxxxxx 00000 XXX
("the Surety")
WITNESSES THAT:
1. DEFINITIONS
1.1 In this Lease unless the context requires otherwise the following
words and expressions have the meanings set out below:
"Access Road" means the roads coloured yellow on Plan II
"Building" means any building or buildings from time to
time on the demised premises and reference to
the Building includes reference to any part
of it
"Conduits" means and includes pipes mains sewers drains
conduits inspection xxxxxxxx manholes pumping
stations stopcocks wires cables ducts meters
channels and other conducting media or similar
apparatus
"demised premises" means the land described in the First Schedule
hereto and each and every part thereof together
with the appurtenances thereto belonging and
together also with any buildings and each and
every part thereof now or hereafter erected or
in the course of erection thereon or on any
part thereof together with all additions
alterations and improvements thereto which
may be carried out during the term
"Insured Risks" means and includes loss or damage by fire storm
tempest flood lightning explosion riot civil
commotion and malicious damage impact aircraft
(other than hostile aircraft) and (except in
time of war) articles dropped therefrom acts of
terrorism bursting and overflowing of water
tanks apparatus and pipes and such other perils
as the Landlord shall reasonably require
"Estate" means the land shown edged blue on Plan II
"Landlord" shall include the person for the time being
entitled to the reversion immediately expectant
on the determination of the term
"Landlord's Surveyor" means the Surveyor appointed by the Landlord
from time to time for the purpose of this Lease
who may be employed by the Landlord or an
associated company of the Landlord
"Lease" means this Underlease and includes where
relevant any deed of variation licence consent
or other document supplemental to this Lease
"Planning Acts" means the Town and Country Planning Acts for
the time being in force and any order
instrument plan regulation permission and
direction made or issued thereunder or deriving
validity therefrom
"Plan I" means the plan attached hereto marked "Plan I"
"Plan II" means the plan attached hereto marked "Plan II"
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"Plan III" means the plan attached hereto marked "Plan
III"
"Prescribed Rate" means two per centum per annum above National
Westminster Bank PLC base rate current from day
to day or in the event of the said base rate
ceasing to exist such other reasonable rate of
interest as the Landlord may properly from time
to time in writing specify
"Surety" includes any successors in title of the Surety
"Tenant" shall include the successors in title permitted
assigns and Personal Representatives of the
Tenant
"Term" means the term of years hereby created together
(in the case of Starpak International Limited
only) with any statutory continuation or
extension thereof
"Unit" means one of the three units comprising part of
the Premises and marked "I" or "II" or "III" on
Plan III
"VAT" means value added tax and any other tax
supplementing or replacing it
1.2 Where any part hereto consists of two or more individuals or
companies any obligations stated or implied to be made by or with any
of them shall be deemed to be made by or with them jointly and
severally
1.3 Any reference to any Act of Parliament includes a reference to that
Act as amended or replaced from time to time and to any subordinate
legislation made thereunder
1.4 The marginal headings shall not affect the interpretation of this
Lease
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1.5 The singular includes the plural and vice versa and the masculine
includes the feminine and neuter and vice versa
1.6 Any covenant by a Tenant not to do any act or thing shall be deemed
to include an obligation not to do or permit or suffer such act or
thing to be done
2. DEMISE
In consideration of the rents and covenants hereinafter reserved and
contained the Landlord hereby DEMISES unto the Tenant ALL THAT the demised
premises TOGETHER WITH (insofar as the Landlord has power to grant the
same) the rights set out in the Second Schedule hereto EXCEPT AND RESERVING
as mentioned in the Third Schedule hereto TO HOLD the same unto the Tenant
for a term of FIVE YEARS from the 30th day of April 1993 SUBJECT TO:-
2.1 all rights of light and air and all other rights easements quasi-
easements and privileges to which the demised premises are or may be
subject; and
2.2 with the benefit of (insofar as the same relate to or affect the
demised premises and not other premises) the provisions or matters
contained or referred to in the documents referred to in the Fourth
Schedule hereto
YIELDING AND PAYING therefor yearly during the term:
2.3 (a) during the first year of the term the clear yearly rent of
L70,000 (SEVENTY THOUSAND POUNDS)
(b) during each of the second, third and fourth years of the term
the clear yearly rent of L80,000 (EIGHTY THOUSAND POUNDS) and
(c) during the fifth year of the term the clear yearly rent of
L82,500 (EIGHTY-TWO THOUSAND FIVE HUNDRED POUNDS)
to be paid by equal quarterly payments in advance on the usual
quarter days in every year the first of such payments being a
proportionate payment to be paid on the execution hereof in respect
of the period from the 1st day of December 1993 to the 28th day of
February 1994
2.4 by way of further rent on demand (at the election of the Landlord
made at any time) either a fair and proper proportion (as determined
by the Landlord's Surveyor whose reasonable decision shall be binding
upon the
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Tenant) of the sum or sums which the Landlord shall from time to time
pay by way of premium for insuring the Estate or the cost to the
Landlord of insuring the buildings comprised in the demised premises
and all fixtures of an insurable nature (other than those which the
Tenant is entitled to remove) in either case for the full
reinstatement value thereof (such costs to include any reasonable
costs in valuing the Estate or the said buildings and fixtures for
the purposes of assessing the sum for which they should be insured
provided that such valuation shall occur not more than once in every
three years) against (insofar as such risks are insurable) the
insured risks and including Architects' and Surveyors' fees
demolition and site clearance charges and three years' loss of rent
during the period covered by the insurance (such costs to include any
reasonable costs incurred in valuing the Building and demised
premises for the purpose of assessing the amount for which they
should be insured)
2.5 the sums referred to in clause 3.2
2.6 a service charge calculated and paid in accordance with the
provisions of the Fifth Schedule hereto
3. THE TENANT'S COVENANTS
The Tenant HEREBY COVENANTS with the Landlord as follows:
3.1 Rent
(a) to pay the rents hereinbefore reserved at the time and in the
manner aforesaid without any deduction or set-off
(b) if any rent or further rent or other payment hereby reserved or
made payable hereunder or any part thereof is unpaid fourteen
days after the same becomes due under the provisions herein
contained (notwithstanding such non-payment results from the
Landlord's reasonable refusal to accept such rent or further
rent or other payment by reason of any alleged or actual breach
of any of the terms of this Lease by the Tenant) to pay by way
of further rent (but without prejudice to any right of action or
remedy of the Landlord for the recovery of the same) interest on
such sum calculated on a day to day basis at the Prescribed Rate
from the date when such payment becomes due to the actual date
of payment such interest to be payable by the Tenant to the
Landlord on demand
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3.2 Outgoings
to pay all rates taxes duties charges assessments outgoings and
impositions whatsoever which now are or shall at any time hereafter
during the term be charged assessed or imposed upon the demised
premises or any part thereof or upon the owner or occupier thereof and
without prejudice to the generality of the foregoing words the Tenant
shall pay and discharge any VAT which might arise in respect of any
sum which the Tenant may by law or under the provision of this Lease
be required to pay to the Landlord PROVIDED THAT if any of such rates
or taxes and other outgoings as aforesaid are or at any time during
the term shall be charged assessed or imposed in respect of the
demised premises in common with other premises and not separately the
Tenant will on demand pay to the Landlord a due proportion thereof
calculated on a pro rata basis on the ratio of the floor area of the
demised premises to the lettable floor area assessed to be determined
by the Landlord's Surveyor (whose reasonable decision shall be binding
on the Tenant) and to be recoverable as rent in arrears
3.3 Repair
(a) to keep the demised premises in good and substantial repair and
condition (except damage caused by any of the insured risks to
the extent that the Landlord is entitled and able to recover the
cost of making good such damage from its insurers)
(b) to keep in good working order and to renew as often as may be
necessary all dock levellers boilers refrigeration and air
handling equipment compressors refrigerant smoke detectors fire
alarms and fire fighting equipment lightning protectors heating
and lighting systems ventilators (in each case if any) and other
plant or machinery installed in the demised premises from time to
time and to cause each of those items to be inspected and
overhauled by some competent person as often as shall be
reasonably necessary
(c) to give notice in writing to the Landlord of any relevant defect
in or affecting the demised premises within the meaning of the
Defective Premises Act 1972 immediately the same comes to the
notice of the Tenant or any agent of or servant of the Tenant
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3.4 External Decoration
as often as may be necessary but not less often than in every third
year of the term and also during the last year thereof (however the
same may be determined) but in any event not more than once in any
twelve month period to paint in a proper and workmanlike manner with
two coats of good quality paint all outside parts of the demised
premises previously or usually painted or which ought to be painted
and with every such outside painting to polish all outside parts of
the woodwork usually polished and to wash down and to restore paint
make good or otherwise treat as may be appropriate any outside
finishes and generally to carry out all such works with good and
proper materials and in accordance with proper standards of
workmanship all colours and styles of decoration to be previously
approved in writing by the Landlord (such approval not to be
unreasonably withheld or delayed)
3.5 Internal Decoration
as often as may be necessary but not less often than in every fifth
year during the term and also during the last year thereof (howsoever
the same may be determined) to paint with two coats at least of good
quality paint and well and sufficiently to grain varnish paper plaster
whiten distemper or otherwise treat as appropriate all the interior
parts of the demised premises as were previously or are usually or
ought to be grained varnished papered whitened distempered or
otherwise treated and generally to redecorate restore and make good
the demised premises and to carry out all such works with good and
proper materials in accordance with proper standards of workmanship
all colours and styles of decorations to be previously approved in
writing by the Landlord such approval not to be unreasonably withheld
or delayed
3.6 Permit Landlord to View
to permit the Landlord and its Agents at all reasonable times
convenient to the Tenant during the term with or without all necessary
workmen on giving reasonable notice (except in case of emergency) to
the Tenant to enter upon the demised premises to view the state of
repair and condition thereof and to take a schedule of the Landlord's
fixtures and of any dilapidations and to inspect the same for the
purpose of assessing the sum for which they should be insured and to
exercise the rights herein reserved
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3.7 Notice to Repair
well and substantially to commence to repair and proceed with all due
diligence to make good all defects and wants of reparation of which
notice in writing shall be served upon the Tenant by the Landlord
pursuant to clause 7.2 hereof and for which the Tenant is liable
hereunder within one calendar month after the giving of such notice or
forthwith in the case of emergency and if the Tenant fails to comply
with any such notice it shall be lawful (but not obligatory) for the
Landlord (but without prejudice to the right of re-entry hereinafter
contained) to enter upon the demised premises to make good the same at
the cost of the Tenant which reasonable cost shall be repaid by the
Tenant to the Landlord within 14 days of demand together with all
reasonable professional charges and other expenses which may be
incurred by the Landlord in connection therewith together with
interest thereon in each case from the date of payment by the Landlord
at the Prescribed Rate
3.8 Entry to View
at all times convenient to the Tenant during the term hereby granted
and upon reasonable notice in the event of the Landlord wishing to
sell lease or otherwise deal with its estate in the demised premises
to permit persons with written authority from the Landlord or its
Agents at reasonable times of the day to view the demised premises and
during the six months immediately preceding the termination of the
term hereby granted (however determined) to permit the Landlord to
affix and retain without interference upon the demised premises
(without interference to the windows or any signs on the demised
premises) a notice for sale of or re-letting the same
3.9 Not to vitiate insurance
(a) not to bring or permit to be brought into the demised premises or
to place or store or permit to be placed or stored or to remain
in or about the demised premises any article or thing which is or
may become dangerous or offensive and not to carry on or do or
permit to be carried on or done thereon any hazardous trade or
act in consequence of which the Landlord's insurance would or
might be vitiated or prejudiced and not without the written
consent of the Landlord which shall not be unreasonably withheld
to do or allow to be done anything whereby any
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additional premium may become payable in respect of any adjoining
or neighbouring property of the Landlord and to indemnify and
keep the Landlord indemnified against any such additional premium
(b) not to do or suffer to be done any act matter or thing whatsoever
whereby the insurance effected by the Landlord in pursuant of its
obligations hereunder shall be void or voidable
(c) to comply with all requirements of the insurers made under such
insurance
(d) not to effect any separate insurance of the demised premises
against loss or damage by any of the insured risks to the intent
that all insurances against such loss or damage as aforesaid
shall be effected only by the Landlord in accordance with its
covenants under this Lease
(e) in the event of the demised premises or any adjoining or
neighbouring premises of the Landlord or any part thereof being
destroyed or damaged by any insured risk and the insurance monies
under any insurance against the same effected thereon by the
Landlord being wholly or partially irrecoverable by reason solely
or in part of any act or default of the Tenant or the Tenant's
servants or agents then in every such case the Tenant will within
14 days of demand pay to the Landlord the whole or (as the case
may require) the irrecoverable proportion of the cost (including
reasonable and proper professional and other fees) of completely
making good such destruction or damage to the Landlord's
reasonable satisfaction
3.10 Not to overload demised premises
not to place or keep or permit to be placed or kept in the demised
premises any heavy articles in such position or in such quantity or
weight or otherwise in such manner howsoever as to overload or cause
damage to or to be in the reasonable opinion of the Landlord likely to
overload or cause damage to the demised premises
3.11 Not to cause nuisance
(a) not to carry on or use or permit the demised premises to be used
for any noisy offensive or
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dangerous trade manufacture business or occupation or for any
illegal or immoral purpose nor to do or suffer to be done on the
demised premises any act matter or thing whatsoever which in the
proper opinion of the Landlord may be or tend to become an
annoyance nuisance damage disturbance or inconvenience or to the
prejudice of the Landlord or of the owners or occupiers of any
adjoining or neighbouring premises or any of them
(b) not to use or suffer the demised premises or any part thereof to
be used for residential purposes
3.12 Not to prejudice Landlord's tax allowance
not to use the demised premises for any use which would prejudice the
entitlement of the Landlord to receive a tax allowance in respect of
the construction costs of the demised premises under the provisions of
the Capital Xxxxxxxxxx Xxx 0000 or any modification or re-enactment
thereof for the time being in force
3.13 Permitted Use
not to use or permit the demised premises to be used otherwise than as
for a use falling within Class B(1) or Class B(8) of the Town and
Country Planning (Use Classes) Order 1987 and ancillary offices
3.14 Not to permit sale by auction
not to permit any sale by auction on the demised premises
3.15 Not to make alterations
(a) not to alter cut maim injure or remove any of the principal or
load bearing walls floors beams or columns of the demised
premises nor to make any other alterations or additions of a
structural nature to the demised premises
(b) not to merge the demised premises with any adjoining premises nor
to erect any new building or erection on the demised premises
(c) not to make or permit to suffer to be made any alteration or
additions (whether structural or non-structural) to the exterior
of the demised premises
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(d) not to make or permit or suffer to be made any internal
alterations or additions of a structural or non-structural nature
to the demised premises save with the consent in writing of the
Landlord (such consent not to be unreasonably withheld or
delayed) provided always that the Landlord may as a condition of
giving any such consent require the Tenant to enter into such
covenants with the Landlord as the Landlord may reasonably
require as regards the execution of any such works and the
reinstatement of the demised premises at the end or sooner
determination of the term
(e) not without the Landlord's prior written consent (such consent
not to be unreasonably withheld or delayed) at any time during
the term to make any alterations or additions to the electrical
installations of the demised premises save in accordance with the
terms and conditions laid down by the Institution of Electrical
Engineers and the regulations of the Electricity Supply Authority
(f) In the event of the Tenant failing to observe these covenants it
shall be lawful for the Landlord and its agents or surveyors with
or without workmen and others and all person authorised by the
Landlord with all necessary materials and appliances to enter
upon the demised premises and remove any alterations or additions
and execute such works as may be necessary to restore the demised
premises to their former state and the costs and expenses thereof
(including surveyors' and other reasonable and proper
professional fees) shall be paid by the Tenant to the Landlord
within 14 days of demand
3.16 Not to create easements
not knowingly by building or otherwise to stop up or darken any window
or light in the demised premises nor knowingly to stop up or obstruct
any access of light enjoyed to any premises the estate or interest
whereof in possession or reversion now is or hereafter may be in the
Landlord or in any person in trust for the Landlord nor to permit any
new wayleave easement privilege or encroachment to be made or acquired
into or against or upon the demised premises and in case any such
wayleave easement right privilege or encroachment shall be made or
attempted to be made to give notice
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thereof to the Landlord as soon as the same shall come to the notice
of the Tenant and permit the Landlord and its Agents to enter upon
the demised premises for the purpose of ascertaining the nature of
any such wayleave easement right privilege or encroachment and at the
request and cost of the Landlord to adopt such means as may be
reasonably required or deemed proper for preventing any such
encroachment or the acquisition of any such wayleave easement right
or privilege
3.17 Not to give acknowledgements
to use the reasonable endeavours of the Tenant to prevent any easement
or right belonging to or used with the demised premises from being
obstructed or lost and not knowingly or negligently to do anything
whereby any encroachment or easement may be made or acquired on
against or over the demised premises or any part thereof except with
the consent or by the direction of the Landlord and in case any
encroachment or easement shall be made or acquired or attempted to be
made or acquired or in case any notice under the Rights of Light Xxx
0000 shall be registered against the demised premises or any structure
which might affect the light or air to the windows or apertures of the
demised premises is erected or attempted to be erected to give notice
thereof to the Landlord as soon as the same shall come to the notice
of the Tenant and to permit the Landlord to bring such proceedings as
it may think fit in the name of and at the cost of the Tenant or to
adopt such other means as the Landlord deems to be reasonably required
or proper for preventing any such encroachment or the acquisition of
any such easement or obtaining the removal of such notice or structure
as the case may be
3.18 Alienation
(a) subject as hereinafter mentioned not to assign nor charge any
part of the demised premises (as distinct from the whole) nor
share possession or occupation of the whole or any part of the
demised premises provided that the Tenant may share the
occupation of the whole or any part of the demised premises with
a company which is a member of the same group as the Tenant
(within the meaning of S.42 of the Landlord and Tenant Act 1954)
so long as both companies shall remain members of that group and
so long as no legal estate is created
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(b) not to hold on trust the demised premises or any part thereof
(except in the case of joint tenants beneficially entitled)
(c) not to underlet any part of the demised premises (as distinct
from the whole) nor to assign underlet charge or part with
possession or occupation of the whole of the demised premises
unless each of the following conditions are fulfilled:
(i) the transaction (other than a charge) is effected by way of
legal assignment or underletting;
(ii) in the case of an assignment the proposed assignee enters
into a direct covenant with the Landlord to perform and
observe the Tenant's covenants contained in this Lease
(including this sub-clause) during the residue of the term;
(iii) in the case of an underletting the proposed undertenant
enters into a direct covenant with the Landlord to
perform and observe the Tenant's covenants contained in
this Lease (except the covenant to pay the rent
reserved by this Lease but including this sub-clause)
during the term created by the Underlease;
(iv) if the proposed assignee or undertenant is a private
limited liability company and if the Landlord shall
reasonably so require a guarantor or guarantors of suitable
standing shall stand surety for the performance of its
obligations to the Landlord and enter into such covenant
with the Landlord as the Landlord reasonably requires;
(v) in the case of an underletting the rent reserved by the
Underlease is not less than that proportion of the rent
payable under this Lease at the date of execution of the
Underlease or the full market rack rental value of the
demised premises (obtainable without taking a fine or
premium) at that date (whichever is the higher) as the
Gross Internal Area (as defined in the RICS Code of
Measuring Practice) of the premises comprised in
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the proposed Underlease bears to the Gross Internal Area
(defined as aforesaid) of the Building
(vi) in the case of an underletting the Underlease contains a
covenant on the part of the Undertenant in the terms of
this sub-clause and is otherwise in a form approved by the
Landlord (such approval not to be unreasonably withheld)
(vii) in the case of an underletting of part the Tenant and
the proposed undertenant (if required by the Landlord)
have obtained an order of the Court authorising them to
enter into an agreement excluding the provisions of
Sections 24 to 28 of the Landlord and Xxxxxx Xxx 0000
in relation to the proposed Underlease and have entered
into such an agreement;
(viii) the Landlord has consented in writing to the proposed
transaction (such consent not to be unreasonably
withheld or delayed)
(ix) in the case of an underletting of part only of the demised
premises the provision of sub-paragraph 3.18(d) are
complied with
(x) the case of an underletting of part only of the demised
premises the Underlease contains provisions enabling the
superior landlord (being the Landlord hereunder) to call
upon the Landlord under the Underlease (being the Tenant
hereunder) to validly terminate the Underlease on the same
date as is referred to in Clause 6.9 hereof in the event
of the Tenant hereunder exercising its rights under
clause 6.9 hereof
(d) additional provisions relating to an underletting of part only of
the demised premises are:
(i) any such underlease shall comprise one or more Units and
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(ii) the total number of such underleases which may subsist at
any one time during the term shall not exceed three and
(iii) any such underlease shall contain provisions enabling
the Tenant (as lessor) to recover from the undertenant
a due proportion of the rent payable by the Tenant
hereunder in respect of the insurance of the demised
premises and of the cost to the Tenant of repairing
decorating and operating the demised premises and
(iv) any such underlease shall preclude further underletting of
all or part of the underlet premises
(v) not without the consent in writing of the Landlord such
consent not to be unreasonably withheld to waive or vary
any of the terms or conditions contained in an approved
Underlease but to enforce the same as often as the occasion
shall arise
(vi) within one month after any assignment underletting
devolution or disposition of the demised premises to give
notice thereof to the Landlord and to supply the Landlord
with a copy of the instrument which effects or evidences
the same and to apply to the Landlord's Solicitors for
the time being a reasonable fee (not less than L25.00) for
registering the same
3.19 To enforce undertenant's covenants
(a) to enforce or procure the enforcement or compliance with the
covenants on the part of the Tenant contained in any Underlease
whether granted mediately or immediately out of this Lease and in
particular to ensure by all proper means the punctual payment of
rents and other sums due thereunder
(b) Not to agree or consent to the variation of any such Underlease
in any manner whatsoever without the prior written consent of the
Landlord
3.20 Not to form rubbish heap
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not to form any dump or rubbish or scrap heap on the demised premises
and to keep such part of the land forming part of the demised premises
as is from time to time undeveloped and the grass and any trees shrubs
and xxxxxx in proper and neat order and condition and clean and tidy
and free from weeds deposits of materials or refuse and not to bring
or keep or suffer to be brought or kept on the demised premises
anything which in the reasonable opinion of the Landlord is or may
become unclean unsightly or detrimental to the demised premises and to
keep clean the windows and window frames of the demised premises and
in particular not to store any goods equipment plant machinery
supplies waste or refuse outside the buildings comprised in the
demised premises
3.21 To pay costs of notices etc.
(a) to pay all reasonable costs and expenses including (but without
prejudice to the generality of the foregoing) reasonable
solicitors' costs and surveyors' fees properly incurred by the
Landlord in respect of and incidental to the preparation and
service of any notice under Section 146 of the Law of Property
Xxx 0000 and/or Section 147 of that Act or any statutory
modification or re-enactment thereof notwithstanding in any such
case that forfeiture may be avoided otherwise than by relief
granted by the Court
(b) to pay all reasonable costs and expenses including (but without
prejudice to the generality of the foregoing) reasonable
solicitors' costs and surveyors' fees properly incurred by the
Landlord in respect of and incidental to the preparation and
service of any notice and/or schedule relating to any breach or
alleged breach by the Tenant of any of its obligations hereunder
and whether or not the same is served during or within six months
after the expiration or sooner determination of the term
(howsoever the same may be determined)
(c) to pay all reasonable costs and expenses including (without
prejudice to the generality of the foregoing) reasonable
solicitors' costs and surveyors' fees properly incurred in
respect of or incidental to any action reasonably taken by or on
behalf of the Landlord in order to prevent or procure the
remedying of any breach or non-performance of any of the
covenants
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conditions or agreements herein or in any underlease
contained and on the part of the lessee to be observed and
performed
(d) to pay all the reasonable and proper costs and expenses of any
distress properly levied upon the demised premises
(e) to pay the Landlord's reasonable and proper legal expenses and
surveyors' fees on all licences and consents by the Landlord and
the duplicate copies thereof resulting from any application
therefor by the Tenant under the provisions hereof including all
reasonable charges fees and disbursements actually incurred in
any case where consent is refused or the application is withdrawn
3.22 Statutory Works
to execute all such works and maintain all arrangements as are or may
be required or directed to be executed on the demised premises under
or in pursuance of any Act of Parliament so far as may be applicable
to the demised premises or their use (including but without prejudice
to the generality of the foregoing the Offices, Shops and Railway
Premises Xxx 0000 the Xxxxxxxxx Xxx 0000 and the Health and Safety at
Work etc. Act 1974) already or hereafter to be passed whether by the
owner and/or the Landlord and/or the tenant thereof and at all times
during the term to conform in all respects with the provisions of any
Act of Parliament and any instrument regulation order or direction
made or issued under any Act of Parliament or deriving validity
therefrom and to comply with any notices which may be served by any
competent authority and not to do or permit to be done on the demised
premises any act or thing whereby the Landlord may become liable to
pay any penalty imposed or to bear the whole or any part of the
expenses incurred under the Act instrument regulation order or
direction as aforesaid
3.23 Notices of Competent Authorities
to give full particulars to the Landlord of any notice direction or
order or of any proposal therefor made given or issued to the Tenant
by any local or public authority within seven days of the receipt of
the same and if so required by the Landlord to produce the same to the
Landlord and without delay to take all necessary steps at the expense
of the Tenant in so far as the
-17-
same falls within the Tenant's obligations hereunder to comply
with such notice direction or order and at the request of the
Landlord (but at the expense of the Tenant) to make or join with
the Landlord in making such objection or representation against
or in respect of any proposal for such notice direction or order
as the Landlord shall reasonably deem expedient
3.24 Planning Acts
in relation to the Planning Acts:-
(a) at all times during the term to comply in all respects with the
Planning Acts and to indemnify the Landlord against any claims
costs demands expenses or penalties in respect of any breach
thereof by the Tenant
(b) during the term so often as occasion shall require at the expense
in all respects of the Tenant to obtain all permissions licences
consents and approvals as may be required for the carrying out by
the Tenant of any operations on the demised premises or for the
institution or continuance or renewal by the Tenant of any use
thereof which may constitute development or any step related
thereto within the meaning of the Planning Acts but so that the
Tenant shall not make any application for planning permission or
give notice to any authority of an intention to commence or to
carry out any development or any step related thereto without the
previous written consent of the Landlord and so that the Tenant
shall (if and insofar as it is lawful for the parties hereto to
make such arrangements) indemnify the Landlord against all
charges payable in respect of any such application and shall also
pay to the Landlord a reasonable sum in respect of all
professional fees and expenses incurred by the Landlord in
connection therewith and the Tenant shall forthwith after the
grant or refusal of such application give to the Landlord full
particulars in writing thereof and (free of cost to the Landlord)
supply a copy thereof for the retention of the Landlord
(c) not to implement any planning permission licence consent or
approval until the same has been submitted to and approved in
writing by the Landlord
-18-
(d) unless the Landlord shall otherwise direct to carry out before
the expiration or sooner determination of the term (however the
same may be determined) any works stipulated to be carried out to
the demised premises by a date subsequent to such expiration or
sooner determination as a condition of any planning permission
which may have been granted to Tenant
(e) if called upon so to do produce to the Landlord all plans
documents and other evidence as the Landlord may reasonably
require in order to satisfy itself that the provisions of this
sub-clause have been complied with
(f) without prejudice to any other of the provisions of this Lease
not to carry out or apply for planning permission to carry out
any development or change of use which may result in a charge to
tax or increased charge to tax on the Landlord
(g) nothing in this Lease contained or implied shall be taken to be a
warranty or representation that the demised premises or any part
thereof may be lawfully used in accordance with the Planning Acts
or otherwise be used for the purpose herein authorised and the
Tenant hereby acknowledges and admits that neither the Landlord
nor anyone on its behalf has given or made at any time any
warranty or representation that such use is or will be or will
remain a permitted use under the Planning Acts or otherwise
3.25 To notify Landlord of adverse occurrence
upon the happening of any occurrence which may be capable of adversely
affecting the Landlord's interest in the demised premises the Tenant
shall forthwith at the Tenant's own expense give full particulars
thereof to the Landlord
3.26 To take proceedings against undertenants
in the event of a breach non-performance or non-observance of any of
the covenants conditions agreements and provisions contained or
referred to in this Lease by any underlessee or other person holding
the demised premises as underlessee or licensee of the Tenant
forthwith upon discovering the same to take and institute at the
Tenant's own expense all necessary steps and proceedings to remedy
such breach non-performance or non-observance
-19-
3.27 Advertisements and signs
not to paint write place affix attach or exhibit any figure or letter
or any pole flag signboard advertisement inscription xxxx placard or
sign whatsoever upon the exterior or visible from the exterior of the
demised premises excepting such reasonable name-board or sign giving
the Tenant's name and nature of business such board or sign to be of a
size and in a position to be approved by the Landlord such approval
not to be unreasonbly withheld or delayed
3.28 Not to obstruct roads
not to permit any vehicles to park on the Access Road nor to permit
any packing cases goods or materials to be unpacked or deposited
outside the Building and not to obstruct the Access Road or any other
roadways or otherwise cause obstruction or annoyance to the Landlord
or to the tenants or occupiers of any adjoining or neighbouring
premises and to observe such regulations as shall be made with regard
to the Access Road
3.29 Not to block sewers
not to deposit or permit the escape of any trade effluent into the
sewers serving the demised premises nor to deposit nor to permit the
escape of trade effluent or other deleterious or noxious material into
the surface water drains serving the demised premises
3.30 Plumbing facilities
(a) not to use the plumbing facilities for any purpose other than
that for which they are constructed and not to place any foreign
substance therein
(b) to keep clean and unobstructed all ventilators or other ducts in
the demised premises
(c) in relation to plumbing facilities to keep the demised premises
at a temperature sufficiently high to prevent freezing of water
in pipes and fixtures
3.31 Services
not to interfere with or otherwise cause access to any pipes wires
cables drains sewers watercourses conduits or subways which now are or
may in the perpetuity
-20-
period be under in or through the demised premises to be or
become more difficult than the same now is
3.32 Machinery
not to install or suffer to be installed any machinery upon the
demised premises or any part thereof which shall be unduly noisy or
cause dangerous vibrations or be a nuisance to the Landlord or the
owners or lessees or occupiers of any adjoining or neighbouring
premises
3.33 Support
not to do anything or suffer anything to be done on the demised
premises which would remove support from any adjoining land buildings
or structures or endanger such land buildings or structures in any way
whatsoever
3.34 To Yield Up
at the expiration or sooner determination of the term (howsoever the
same may be determined) quietly to yield up unto the Landlord the
demised premises in such good and substantial repair and condition as
shall be in accordance with the covenants on the part of the Tenant
herein contained together with all fixtures and fittings improvements
and additions which now are or may at any time hereafter be in or
about the demised premises (but excepting Tenant's fixtures and
fittings) and in case any of the Landlord's fixtures and fittings
shall be missing broken damaged or destroyed forthwith to replace them
with others of a similar quality and character and to remove every
moulding sign writing or painting from the demised premises and to
make good all damage caused to the demised premises by the removal of
the Tenant's fixtures and fittings furniture and effects
3.35 Indemnities
so far as the same relate to or affect the demised premises (but not
further or otherwise) to observe and perform any agreements covenants
and stipulations contained or referred to in the Fourth Schedule
hereto or contained or referred to in any documents referred to in the
Fourth Schedule hereto and to keep the Landlord indemnified against
all actions proceedings costs claims and demands in any way relating
thereto
3.36 VAT
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(a) To pay to the Landlord any VAT chargeable in respect of any
supplies made by the Landlord to the Tenant hereunder
(b) Where the Tenant is liable hereunder to reimburse the Landlord in
respect of any costs incurred by the Landlord the Tenant shall
also reimburse any VAT on such costs save to the extent that the
VAT is recoverable by the Landlord from HM Customs & Excise
(c) Where such reimbursement shall be regarded by HM Customs & Excise
as consideration for supplies by the Landlord to the Tenant the
Tenant shall pay to the Landlord any VAT chargeable by the
Landlord on any such supplies
(d) Any rent or other consideration payable in respect of any supply
or supplies by the Landlord to the Tenant shall be deemed to be
exclusive of VAT which shall be added where appropriate to such
rent or other consideration at the appropriate rate
4. LANDLORD'S COVENANTS
The Landlord HEREBY COVENANTS with the Tenant (to the intent to bind itself
and its successors in title the persons for the time being entitled to the
reversion expectant on the determination of the term but not to bind itself
after it shall have parted with all its estate and interest in the demised
premises or to incur further liability thereafter) as follows:-
4.1 Quiet Enjoyment
that the Tenant paying the rent hereby reserved and performing and
observing the several covenants conditions and agreements herein
contained and on its part to be performed and observed shall and may
peaceably hold and enjoy the demised premises during the term without
any lawful interruption by the Landlord or any person rightfully
claiming through under or in trust for it
4.2 To Insure
(a) to keep the demised premises insured against damage or
destruction by:-
(aa) the insured risks in a sum which represents the full
reinstatement value
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of the Building and other structures on the demised
premises including:
(i) the cost of site clearance
(ii) all architects' surveyors' and other professional fees
and incidental expenses in connection with rebuilding
and reinstating the demised premises
(iii) three years' loss of rent insurance
(iv) VAT on those amounts in the extent applicable and to
the extent that the Landlord may not be able to recover
VAT from HM Customs & Excise
(v) VAT which may become payable by the Landlord in respect
of any self supply under paragraph 6 of Schedule 6A of
the Value Added Tax Xxx 0000 to the extent that the
Landlord may not be able to recover that VAT from HM
Customs & Excise
(bb) third party and public liability insurance
(cc) insurance against liability under the Defective Premises Act
1972 (and any other legislation against which the Landlord
reasonably requires insurance)
(b) if the demised premises are destroyed or damaged by the insured
risks then the Landlord will use its reasonable endeavours to
obtain all necessary consents required to reinstate the demised
premises and if these are obtained the Landlord will apply the
insurance monies received in respect of reinstating the demised
premises with all reasonable speed
(c) the demised premises need not be reinstated to the same state
appearance or layout as before provided that following any
reinstatement the Building shall be of substantially the same
size as before and shall enjoy substantially the same rights as
before
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(d) whilst the Landlord shall be obliged to insure under sub-clause
4.2(a) the Landlord shall not be liable to the Tenant and
its undertenants to the extent that:-
(i) insurance is not available with a reputable insurance
company or
(ii) excess exclusion or limitation imposed by insurers applies
or
(iii) any insurance policies in respect of the demised
premises have become void or voidable by reason of any
act neglect or default of the Tenant or any undertenant
or any servant agent licensee or invitee of any of them
5. CESSER OF RENT
In case the demised premises or any part thereof or the means of access
thereto shall at any time be destroyed or damaged by any of the insured
risks so as to be unfit for occupation and use then (unless the insurance
of the demised premises shall have been forfeited or vitiated by the act or
default of the Tenant or any of the Tenant's servants or agents tenants or
licensees or if the monies payable under such insurance policy in respect
of loss of rent shall not be paid to the Landlord by reason of any act or
default of the Tenant its servants agents or licensees) all the rents sums
and service charge referred to in the reddendum to clause 2 hereof hereby
reserved or a fair and just proportion thereof according to the nature and
extent of the damage sustained shall cease to be payable by the Tenant for
a period from the date of such destruction or damage as aforesaid until the
demised premises shall have been rebuilt and reinstated and made fit for
occupation or use Any dispute concerning this Clause shall be determined
by a single Arbitrator in accordance with the Arbitration Acts 1950-1979 or
any statutory enactment in that behalf for the time being in force
6. PROVISOS
6.1 Re-entry
Without prejudice to any other right and remedy or power herein
contained or otherwise available to the Landlord:
(a) if the rents hereby reserved other than the additional rent shall
be unpaid for twenty-one
-24-
(21) days after becoming payable whether formally demanded or
not; or
(b) if any of the covenants on the part of the Tenant contained in
this Lease [(other than the covenant to pay the additional rent)]
shall not be performed and observed; or
(c) if the Tenant (being a body corporate) has a winding-up order or
an administration order made against it or passes a winding - up
resolution (other than for the purposes of an amalgamation or
reconstruction resulting in a solvent corporation) or resolves to
present its own winding-up petition or is wound up (whether in
England or elsewhere) or the directors of the Tenant resolve to
present a petition for an administration order in respect of the
Tenant, (or an Administrative Receiver or a Receiver or a
Receiver and Manager is appointed in respect of the property or
any part thereof of the Tenant); or
(d) the Tenant (being a body corporate) calls a meeting of its
creditors or any of them makes an application to the Court under
Section 425 of the Companies Xxx 0000 or submits to its creditors
or any of them a proposal pursuant to Section 1 of the Insolvency
Act 1980 or enters in any arrangement scheme compromise
moratorium or composition with its creditors or any of them
suffers any distress or execution to be levied on the demised
premises where such distress or execution is not lifted or paid
out within 21 days; or
(e) if the Tenant (being an individual) or if more than one
individual then any one of them notifies the Official Receiver or
makes an application to the Court pursuant to Section 253 of the
Insolvency Xxx 0000 or convenes a meeting of his creditors or any
of them enters into any arrangement scheme compromise moratorium
or composition with his creditors or any of them (whether
pursuant to Part VIII of the Insolvency Xxx 0000 or otherwise) or
has a bankruptcy petition presented against him or is adjudged
bankrupt or suffers any distress or execution to be levied on the
demised premises
THEN it shall be lawful for the Landlord or any person duly authorised
by the Landlord in that behalf at any
-25-
time thereafter to re-enter the demised premises or any part
thereof in the name of the whole and thereupon this demise shall
absolutely cease and determine but without prejudice to any right
of action or remedy of the Landlord in respect of any antecedent
breach of any of the covenants on the part of the Tenant
contained in this Lease
6.2 Service of Notices
that any notice certificate demand or payment requiring to be served
upon or given to the Tenant shall be well and sufficiently served or
given if sent by the Landlord or its Agents through the First Class
post by pre-paid letter addressed to the Tenant at its last known
address or addressed to the Tenant at the demised premises and any
notice required to be given to the Landlord shall be well and
sufficiently given if sent by the Tenant by registered post addressed
to the Landlord at its registered office or if sent as aforesaid
addressed to any Agent from time to time authorised by the Landlord to
receive the rent payable hereunder and any demand or notice sent by
post in either case shall be deemed to have been delivered in the
usual course of registered post
6.3 Removal of Tenant's Property
that if at such time as the Tenant has vacated the demised premises
after the determination of the term either by effluxion of time or
otherwise any property of the Tenant shall remain in or upon the
demised premises and the Tenant shall fail to remove the same within
seven days after being requested by the Landlord so to do by notice in
that behalf then in such case the Landlord may as the Agent of the
Tenant (and the Landlord is hereby appointed by the Tenant to act in
that behalf) sell such property and shall then hold the proceeds of
sale after deducting the costs and expenses of removal storage and
sale reasonably and properly incurred by it to the order of the Tenant
provided that the Tenant shall indemnify the Landlord against any
liability incurred by it to any third party whose property shall have
been sold by the Landlord in the bona fide mistaken belief (which
shall be presumed unless the contrary be proved prior to such sale)
that such property belonged to the Tenant and was liable to be dealt
with as such pursuant to this Clause
6.4 Compensation
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subject to the provisions of sub-section (2) of Section 38 of the
Landlord and Xxxxxx Xxx 0000 neither the Tenant nor any underlessee
shall be entitled on quitting the demised premises to any compensation
under Section 37 of the said Act
6.5 Standard of Work
any work carried out by the Tenant (whether of repair or otherwise
shall be carried out to the reasonable satisfaction of the Landlord's
Surveyor
6.6 Waiver of Breach
no acceptance of or demand or receipt for rent by the Landlord after
knowledge or notice received by the Landlord or its Agents of any
breach of any of the Tenant's covenants herein contained or implied
shall operate as a waiver in whole or in part of any such breach or of
the Landlord's rights of forfeiture or re-entry in respect thereof but
any such breach shall for all the purposes of this Lease be a
continuing breach of covenant so long as such breach shall be
subsisting and no person taking any estate or interest under the
Tenant shall be entitled to set up any such acceptance of or demand or
receipt for rent as a defence in any action or proceedings by the
Landlord
6.7 Option to Tax
Nothing in this Lease shall impose any obligation on the Landlord to
make or refrain from making any election that the supplies made under
this Lease shall not be exempt from VAT
6.8 Receivership
The Receivers are acting as agents of the Landlord and neither of them
nor their firm shall have any personal liability under this Lease
whether arising under the Insolvency Xxx 0000 or otherwise
6.9 If the Tenant wishes to determine this Lease at the expiration of the
third year of the term hereby granted and gives not less than six
months' notice in writing to the Landlord to that effect and pays all
rent and substantially performs all the covenants and conditions
hereinbefore contained and on the Tenant's part to be performed and
observed up to such determination and in addition pays to the Landlord
a further sum equivalent to six months' rent hereunder then in such
case immediately after the expiration of the third year of
-27-
the said term this Lease shall cease and be void but without
prejudice to any claim by either party against the other in
respect of any antecedent breach of any covenant or condition
herein contained
6.10 If at any time during the first year of the term hereby granted the
Tenant shall wish to purchase the freehold reversion in the demised
premises it shall be at liberty to do so in accordance with the
provisions contained in the Sixth Schedule hereto
7. SURETY'S COVENANTS
7.1 The Surety HEREBY COVENANTS with the Landlord that the Tenant will at
all times during the Term pay the rents and any other monies hereby
reserved or as subsequently increased under the provisions of Clause 2
hereof (or as otherwise agreed between the Landlord and the Tenant) on
the days and in the manner aforesaid and will observe and perform the
covenants and conditions contained in this Lease and on the part of
the Tenant to be observed and performed and that if the Tenant shall
make any default in the payment of the said rents or other monies in
the manner aforesaid or in observing and performing the said covenants
and conditions or any of them then and in every such case the Surety
will forthwith (as principal obligor) pay the said rents and other
monies and shall perform and observe the said covenants and conditions
and shall also pay and make good to the Landlord on demand all losses
damages costs and expenses sustained by the Landlord through default
of the Tenant in respect of any of the before-mentioned matters
PROVIDED ALWAYS that notwithstanding:-
7.1.1 any forbearance of the Landlord to enforce against the
Tenant the payment of the said rents or the observance or
performance of the Tenant's covenants and conditions or the
giving of time by the Landlord to the Tenant in relation
thereto
7.1.2 that the terms of this Lease may have been varied by
agreement between the Landlord and the Tenant
7.1.3 any other act or thing whereby but for this provision the
Surety would have been released
the Surety shall not thereby be discharged from liability under the
foregoing covenant nor shall such liability be in any way lessened or
affected thereto
-28-
7.2 To accept grant of Lease
The Surety hereby FURTHER COVENANTS with the Landlord that if the
Tenant being a company shall go into liquidation and the liquidator
shall disclaim this Lease or if the Tenant shall be wound up or cease
to exist (or if the Tenant for the time being being an individual
shall become bankrupt and the trustee in bankruptcy shall disclaim
this Lease) and if the Landlord shall within 3 months after
notification to the Landlord of such disclaimer or other event putting
an end to the effect of this Lease as aforesaid so far as concerns the
Tenant by notice in writing require the Surety to enter into a Lease
of the demised premises as tenant and/or surety for a term
commensurate with the residue which if there had been no disclaimer or
if this Lease had continued to have effect as aforesaid would have
remained of the Term at the same rent and subject to the like
covenants and conditions as are reserved by and contained in this
Lease (with the exception of this sub-clause) the said new Lease and
rights and liabilities therein to take effect as from the date of the
said disclaimer or of this Lease ceasing to have effect as aforesaid
then and in such case the Surety shall pay the costs of and the
relevant Surety shall accept such new Lease accordingly and will
execute and deliver to the Landlord a counterpart thereof
IN WITNESS whereof this Lease is executed by the parties hereto as a Deed and it
is delivered the day and year first before written
THE FIRST SCHEDULE
(Particulars of the demised premises)
ALL THAT Land and Buildings situate at and known as Block A Sovereign Xxxx
Xxxxxx Road Hartlepool Cleveland and shown edged red on Plan I
-29-
THE SECOND SCHEDULE
(Particulars of rights granted to the Tenant)
1. The right for the Tenant and the occupiers of the demised premises and for
all other persons coming to or leaving the demised premises in common with
the Landlord and all others having the like right at all times and for all
purposes to pass and xxxxxx to and from the demised premises along the
Xxxxxx Xxxx
0. The free and uninterrupted right for the Tenant and the occupiers of the
demised premises of passage and running of water gas electricity foul and
surface water telecommunications and other services from and to the demised
premises through all Conduits which now are or may at any time during the
term be in or under or upon any part of the Estate and serve the demised
premises
3. The right to use 56 car parking spaces from time to time allocated to the
Tenant for the purpose only of the parking of motor cars belonging to the
Tenant or its employees PROVIDED THAT the position of the parking spaces
may be varied by the Landlord if it so requires
-30-
THE THIRD SCHEDULE
(Particulars of reservations and expectations in favour
of the Landlord)
1. Easements rights and privileges in favour of the Landlord and all those
authorised by the Landlord respectively over along and through the demised
premises equivalent to those set forth and subject to the conditions
contained in paragraph 2 of the Second Schedule hereto
2. The right in favour of the Landlord and all those authorised by the
Landlord upon reasonable prior written notice to the Tenant (except in
emergency when no notice need be given) to ente and remain on the demised
premises with or without tools appliances scaffolding and material for the
purposes of:
2.1 installing inspecting repairing renewing reinstalling cleaning
maintaining or connection up to any Conduits or
2.2 inspecting cleaning altering repairing maintaining renewing or
rebuilding the Building or any adjoining or adjacent premises or
2.3 complying with the Landlord's covenants under this Lease
the person entering causing as little damage and inconvenience as
reasonably possible and making good as soon as reasonably practicable at
such person's expense any damage caused to the demised premises by such
entry
-31-
THE FOURTH SCHEDULE
(Matters to which the demised premises are subject)
The entries contained in the Property and Charges Registers of Title Numbers
CE115944 and CE 101581 (excluding all mortgages and other similar financial
charges) in so far as the same relate to or affect the demised premises
-32-
THE FIFTH SCHEDULE
(Service Charge)
1. In this Schedule the following expressions have the following meanings:
"financial year" means a period of twelve months ending 31st
December in each year or such other year
ending as the Landlord shall from time to
time designate in writing
"the Service Costs" means the total sum computed in accordance
with paragraph 2 below
"the Specified Proportion" means a fair proportion as conclusively (save
as to manifest error) determined by the
Landlord but which in the absence of special
circumstances will be substantially the same
as the proportion which the gross internal area
of the demised premises bears to the aggregate
gross internal areas of all the let or lettable
areas for the time being comprised in the
Estate
"the Service Charge" means the Specified Proportion of the Service
Costs
"the Expert" means a professionally qualified surveyor or
accountant (who may be a person employed by
the Landlord or an associated company of the
Landlord)
2. The items to be included in the Service Costs are insofar as such matters
are not expressly otherwise provided for in this Lease the following:
2.1 the costs of and incidental to the installation inspection repair
maintenance renewal lighting (including the installation of new
lighting) and cleaning of the Estate (including without prejudice to
generality all roads car parks loading bays party walls party
structures party fences walls fences signs
-33-
stairways paths pavements yards gardens landscaped areas open spaces
Conduits air conditioning equipment sprinkler systems fire alarms
smoke detectors lightning protectors fire fighting equipment hoists
cradles gantries generators and other plant machinery or equipment
in or about the Estate) and all other things the use of which is
common to the demised premises and other premises near or adjoining
thereto (whether or not under the ownership or control of the
Landlord) and including (for the avoidance of doubt) the Access Road
2.2 the cost of any rates taxes assessments electricity or outgoings of
any nature whatsoever payable in respect of the Estate by the
Landlord
2.3 the cost of disposing of refuse from the Estate
2.4 the cost of employing cleaners security staff (with or without dogs)
gardeners maintenance staff and other staff including uniforms
national insurance contributions bonuses pensions compensation for
redundancy and unfair dismissal and (where the Landlord provides
accommodation for such purposes) an amount equal to the rent payable
by the Landlord for such accommodation (or if not appropriate an
amount equal to the rent payable by the Landlord for such
accommodation (or if not appropriate an amount equal to the rent that
could be received from a willing tenant on the open market for such
accommodation) and any rates payable thereon and the cost of any
repairs thereto
2.5 the cost of providing a telephone for use by porters cleaners and
other staff
2.6 the cost of and incidental to the carrying out by the Landlord of any
work in or about the Estate in pursuance of any requirement of any
Act of Parliament or of any local or public authority
2.7 the cost of preparing accounts and certificates relating to the
calculation of the Service Costs or the Service Charge
2.8 without prejudice to the generality of 2.1 above the cost of the
maintenance and renewal of displays of plants in any garden lawn or
landscaped or paved area within the Estate
2.9 the cost of employing managing agents (save in relation to the
collection of rent or the letting of any property) in respect of the
Estate or if the Landlord does not employ managing agents then a fee
for the
-34-
Landlord of ten per cent of the total of the foregoing amounts
2.10 the cost of such other services or works whatsoever as may be
provided by the Landlord from time to time which the Landlord
considers in its reasonable discretion to be for the benefit of the
Estate or any part or parts thereof
2.11 interest on monies borrowed by the Landlord (or other expenditure
paid or incurred in connection with such loan) for the purpose of
paying any such costs as aforesaid
2.12 any VAT on any of the above items
3. The Tenant covenants with the Landlord to pay the Service Charge during the
term by equal payments in advance at the times at which and in the manner
in which rent is payable under this Lease the first payment of which shall
represent a proportion calculated from 30th April 1993 to the next quarter
day hereafter and which shall be paid on the signing hereof
4. The Service Charge in respect of any financial year shall be calculated not
later than the beginning of the financial year in question and in respect
of the current financial year shall be the sum of Two thousand pounds
(L2,000) per annum
5. The Service Costs shall consist of a total sum equal to:
(a) the expenditure estimated by the Expert as likely to be incurred by
the Landlord in the financial year in question in connection with the
items specified in paragraph 2 hereof together with
(b) an appropriate amount as a reserve for or towards each of the items
specified in paragraph 2 as are likely to give rise to expenditure
either after the expiry of this Lease or only once during the
unexpired term thereof or at intervals of more than one year PROVIDED
THAT where any expenditure is to be incurred on any such item in the
financial year to which the said estimate relates the expert shall in
computing the said total give credit for the amount then standing to
the credit of the reserve in respect of the item in question
6. As soon as practicable after the end of each financial year the Expert
shall determine and certify the amount by which the estimate referred to in
5(a) of this Schedule exceeds or falls short of the actual expenditure
incurred by the Landlord in respect of the items specified in paragraph 2
of the financial
-35-
year in question (giving credit for any amount applied from the reserve in
payment of items of expenditure incurred during that year) and shall supply
the Tenant with a copy of the Certificate
7. Within 21 days of receipt by the Tenant of the said Certificate the Tenant
shall pay to the Landlord the Specified Proportion of the deficiency or as
the case may be the Landlord shall give to the Tenant the Specified
Proportion of the excess
8. During any period when any part of the Building is not let upon terms that
the tenant of it is liable to pay a service charge corresponding to the
Service Charge payable under this Lease the Landlord shall contribute to
the reserve an amount equal to the total that would have been payable by
way of such contribution if such part of the Building had been let as
aforesaid and the said reserve shall be calculated accordingly
9. Any dispute arising out of the provisions of this clause shall be referred
to the decision of a single arbitrator to be agreed between the parties
hereto or in default of agreement to be appointed on the application of
either party by the President for the time being of the Royal Institution
of Chartered Surveyors whose decision shall be final but this paragraph
shall not confer upon the Tenant the right to challenge the amount of the
total sum computed under paragraph 5(a) of this Schedule save in the case
of manifest error
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THE SIXTH SCHEDULE
(Option to purchase
the freehold reversion)
1. Definitions
In this Schedule the following expressions (where the context so admits)
shall have the following meanings:-
"the Counter-Notice"
The Counter-Notice referred to in paragraph 2.3 and in the form set out in
Part II of this Schedule
"the General Conditions"
The Standard Conditions of Sale (1st Edition) and "General Condition" shall
be construed accordingly
"the Option Notice"
The notice referred to in paragraph 2.1
"the Option Period"
The period commencing on 30th April 1993 and expiring on 29th April 1994
"the Price"
The sum of L700,000 exclusive of Value Added Tax (VAT) together with VAT on
such sum if the Landlord so requires reduced by the equivalent of 50% of
the rent reserved by Clause 2.3 of this Lease and paid at the date of
exercise of this Option but increased by the whole amount of such rent due
but unpaid at the date of exercise of this Option
"the Property" and/or "the freehold reversion"
Firstly the Landlord's buildings comprising the demised premises as defined
in this Lease and edged red on Plan I and secondly the car parking spaces
shown edged in green on Plan I (irrespective of whether the Landlord has
exercised its rights under the Proviso to Paragraph 3 of the Second
Schedule hereto)
2. Exercise of the Option
2.1 The option granted shall be exercisable by the Tenant giving to the
Landlord the Option Notice at any time during the Option Period
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2.2 The Option Notice shall be in the same form or to the like effect as
that set out in paragraph 5 of this Schedule which shall together with
a duplicate thereof be signed by the Tenant and served on the Landlord
2.3 The Landlord shall within 7 days of service of the Option Notice and
the duplicate thereof on the Landlord sign the Counter-Notice endorsed
on the Option Notice and the duplicate thereof and within such period
of 7 days serve or cause to be served the Option Notice or the
duplicate thereof with the Counter-Notice duly signed on the Tenant
2.4 In respect of service of the Option Notice and the duplicate thereof
under paragraph 2.2 and of the Counter-Notice under paragraph 2.3 the
provisions of General Condition 2 shall apply save that there shall be
substituted for the words "notice served under the contract" the words
"counter-notice or acknowledgement served under the provisions of this
Schedule to this Lease"
2.5 The Landlord irrevocably by the way of security hereby appoints the
Tenant the attorney of the Landlord for the purposes of signing the
Counter-Notice in the event that the Landlord shall fail to serve it
duly signed in accordance with paragraph 2.3 and for this purpose the
signing by the Tenant of the Counter-Notice endorsed on a further copy
of the Option Notice duly signed by the Tenant shall be deemed to be
valid signing of the Counter-Notice by the Tenant as attorney of the
Landlord and the Landlord hereby confirms that this power of attorney
hereby conferred on the Tenant is given by way of security to secure
the proprietary interest of the Tenant in the sale of the freehold
reversion and the performance of the Landlord's obligations to the
Tenant under paragraph 2.3 and declares that this power of attorney is
irrevocable
3. Contractual Terms
3.1 Service by the Landlord of the Counter-Notice duly signed or the
signing of the Counter-Notice by the Tenant as the attorney of the
Landlord under paragraph 2.5 shall constitute a binding contract for
the Landlord to sell and the Tenant to purchase the freehold reversion
on the following terms and conditions:-
3.1.1 The agreement to convey the freehold reversion shall be
subject to the General Conditions so far as the same are
applicable to a sale by
-38-
private treaty and are not varied by or inconsistent with the
terms and conditions of this Agreement
3.1.2 A sum equal to 10% of the Price and on account thereof shall
be paid as a deposit forthwith on the exercise of this option
to the Landlord's Solicitors as agents for the Landlord (with
interest accruing to the Landlord) and the balance thereof
shall be payable on the date fixed for completion
3.1.3 The Landlord's title is registered with Title Absolute under
Title Numbers CE 115944 and CE 101581 and such title shall
be deduced in accordance with Section 110 of the Land
Registry Xxx 0000
3.1.4 The reversion shall be conveyed/transferred subject to and
with the benefit of this Lease to the intent that the same
shall merge and be extinguished in the reversion
3.1.5 The Landlord shall within 7 days of completion place the
Charge/Land Certificate relating to the demised premises on
deposit at H M Land Registry in order to enable the Tenant
to register a dealing against the Landlord's Title
3.2 Completion shall take place on or before 28 days following service of
the Option Notice
3.3 The Transfer to the Tenant shall contain such provisions and covenants
binding on the Tenant and the Surety and their respective successors
in title so as to bind the Property and each and every part thereof
and so as to benefit the Landlord and its successors in title and the
land retained by the Landlord and each and every part thereof as the
Landlord shall properly require to reflect firstly an ongoing service
charge commitment equivalent to that contained in this Lease and
secondly such other matters rights exceptions and reservations which
the Landlord considers are proper and necessary in the context of a
transfer of part out of its registered freehold title and/or so as to
reflect the rights exceptions and reservations contained in this Lease
The said ongoing service charge commitment shall (at the option of the
Landlord) be effected by a Rentcharge Deed
4. Non-merger of covenants
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All obligations under the provisions of this Schedule which shall not have
been performed or fully performed on the completion of the Transfer shall
not be or be deemed to be merged in or extinguished by the execution of the
Transfer but shall remain in full force and effect following completion
thereof
Option Notice
5. To: [the Landlord]
We [the Tenant] of [ ] hereby
(1) refer you to paragraph of the Schedule to the Lease ("the
Lease") dated [ ] and made between [yourself] and [this
Company]/[ ] relating to
as described in the Lease and pursuant to paragraph of the
Schedule to the Lease give you notice exercising the option granted by
clause of the Lease
(2) agree for the purpose of Section 2 of the Law of Property
(Miscellaneous Provisions) Xxx 0000 that the terms of clause and the
Schedules to the Lease shall be deemed to be incorporated in this
document which shall be deemed to comprise this Notice and Counter-Notice
("the Counter-Notice") hereinafter set out and that upon the signing by the
Landlord of the Counter-Notice and the service of this Notice or the
duplicate thereof on ourselves with the Counter-Notice duly signed the
contract referred to in paragraph 3 of this Schedule to the Lease shall
forthwith arise
Dated this day of 199
.............................
-40-
PART II
Counter-Notice
We, [the Landlord] of [ ] hereby:-
(1) acknowledge that we have received a notice ("the Notice") in the form
hereinbefore set out
(2) agree for the purposes of Section 2 of the Law of Property (Miscellaneous
Provisions) Xxx 0000 that the terms of clause and the
Schedules to the Lease referred to in the Notice shall be deemed to be
incorporated in the Notice and this Counter-Notice and that the contract
referred to in the Notice shall arise upon the service of the Notice or the
duplicate thereof on which the Counter-Notice is endorsed on the person who
served the Notice
Dated this day of 199
................................
THE COMMON SEAL of STARPAK )
INTERNATIONAL, LTD. was )
hereunto affixed in the )
presence of:- )
President
/s/ XXXXXXX X. XXXXXX
-------------------------------------------
Xxxxxxx X. Xxxxxx
Assistant Secretary
/s/ E. XXXXXXX XXXXXX XX.
-------------------------------------------
E. Xxxxxxx Xxxxxx Xx.
THE COMMON SEAL of STARPAK, INC.
(SURETY) was hereunto fixed in
the presence of:
PRESIDENT
/s/ XXXXXXX X. XXXXXX
-------------------------------------------
Xxxxxxx X. Xxxxxx
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ASSISTANT SECRETARY
/s/ E. XXXXXXX XXXXXX XX.
-------------------------------------------
E. Xxxxxxx Xxxxxx Xx.
on which the Counter-Notice is endorsed on the person who served
the Notice
Dated this day of 199
SIGNED as a Deed by EAST MERCIA
DEVELOPMENTS LIMITED (IN RECEIVERSHIP)
acting by Xxxxx Xxxxxxx Xxxx,
Joint Receiver
/s/ XXXXX XXXXXXX XXXX
-------------------------------------------
Xxxxx Xxxxxxx Xxxx
-42-
