Exhibit 10(t)
DATED September 1, 2003
JUNIPER DEVELOPMENTS LIMITED
- and -
XXXXXXXX UK LIMITED
- and -
XXXXXXXX INC
----------------------------------------------
LEASE
relating to
Xxxx 0 Xxxxxxx (Xxxxx 0)
Xxxxxx Xxx Xxxxxxxx Xxxxx
----------------------------------------------
Term: 20 years from 1 September 2003
Initial Rent: L211,000 p.a. plus additional rent
Rent Review Dates: 1 September 2008 and each fifth anniversary
DAVIES XXXXXX XXXXXX
0-0 Xxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Tel: 000 0000 0000
Fax: 000 0000 0000
e-mail: xxxxxxxxx@xxx.xx.xx
Ref: 1115/143593.17/30.04.03/
CLAUSE HEADING PAGE
1 DEFINITIONS AND INTERPRETATION........................................... 1
2 DEMISE................................................................... 6
3 TENANT'S COVENANTS....................................................... 7
4 INSURANCE................................................................ 22
5 SERVICE CHARGE........................................................... 26
6 LANDLORD'S COVENANTS..................................................... 31
7 RENT REVIEW.............................................................. 32
8 MISCELLANEOUS PROVISIONS................................................. 35
9 FORFEITURE............................................................... 38
10 GUARANTEE................................................................ 40
11 TENANT'S BREAK CLAUSE.................................................... 41
12 CERTIFICATION............................................................ 42
13 CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999............................. 42
14 JURISDICTION............................................................. 42
15 DELIVERY................................................................. 42
SCHEDULE 1 Rights............................................................ 43
SCHEDULE 2 Exceptions and Reservations....................................... 44
SCHEDULE 3 Incumbrances...................................................... 45
SCHEDULE 4 VAT............................................................... 46
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THIS LEASE is made the first day of September, 2003
BETWEEN:
(1) JUNIPER DEVELOPMENTS LIMITED whose registered office is at 0 Xxxxxx,
Xxxxxx, XX0X 0XX (Company number 4022595) and any person for the time
being entitled to the reversion immediately expectant on the End of the
Term (the LANDLORD);
(2) XXXXXXXX UK LIMITED whose registered office is at 00 Xx Xxxxxx Xxxxxx,
Xxxxxxx XX0 0XX (Company number 286712) and any person in whom the Term
is from time to time vested (the TENANT);
(3) XXXXXXXX INC a company registered in Delaware and having its principal
place of business at 0000 Xxxxx Xxxxxx Xxxx, Xxxxxxxx, Xxxxxxxxxx,
00000, XXX (the GUARANTOR).
1 DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
Where in this deed the following words in bold type commence with
capital letters they have the following meanings unless the context
otherwise requires:
"ADDITIONAL RENT" means L21,000 per annum payable on and from 1
May 2003 until the 30 April 2013 which represents the cost to the
Landlord of paying for the works described in the Specification;
"AUTHORITY" means any statutory, public, local or other competent
authority or a court of competent jurisdiction;
"CLAUSE" means a clause of this deed;
"COMMON PARTS" means such entrances, passages, circulation areas,
service roads, service yards, car parks, loading bays, forecourts, fire
escape routes, landscaped areas and other areas from time to time
provided for the common use of tenants, occupiers, visitors or any of
them;
"CONDUIT" means any pipe, drain, culvert, sewer, flue, duct, gutter,
wire, cable, optic fibre, conduit, channel and other medium for the
passage or transmission of water, soil,
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gas, air, smoke, electricity, light, information or other matter and
all ancillary equipment or structures;
"END OF THE TERM" means the determination of the Term by expiry,
forfeiture, notice, surrender or otherwise;
"ENVIRONMENT" means all or any one or more of air, water and land (in
each case wherever located);
"ENVIRONMENTAL HARM" means harm or damage to the Environment, to human
health or to the health of any other living organism, or to property;
"ENVIRONMENTAL LAW" means any and all Legal Obligations which have as
purpose or effect the protection of Environment and/or the prevention
of Environmental Harm;
"ENVIRONMENTAL PERMITS" means any and all consents, permits or
authorisations required under Environmental Law in connection with the
Tenant's use and occupation of the Premises;
"ESTATE" means the Landlord's estate at Xxxxxx Xxx, Xxxxxxxx, Xxxxx, of
which the Premises form part and which is for identification only shown
edged green on the Plan or such reduced or extended area as the
Landlord may from time to time reasonably designate as comprising the
Estate;
"HAZARDOUS SUBSTANCES" means any and all substances or matter (whether
in solid, liquid or gaseous form) which (whether alone or in
combination with other substances or matter) are capable of causing
Environmental Harm;
"INTEREST" means interest at the Interest Rate (both before and after
any judgment) calculated on a daily basis from the date on which
interest becomes chargeable on any payment pursuant to any provision of
the Lease to the date upon which such payment is made, such interest to
be compounded with rests at the usual quarter days;
"INTEREST RATE" means 3% p.a. above the base lending rate from time to
time of Lloyds TSB Bank plc (or of such other bank as the Landlord may
give notice from time to time);
"INVESTIGATION WORKS" means such works of intrusive investigation,
drilling, testing, sampling, monitoring and analysis as are necessary
in the reasonable opinion of the
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Landlord to assess the extent to which the Tenant is complying with its
covenants contained in clauses 3.13.1 and 3.13.3;
"LEASE" means this lease as from time to time varied or supplemented
whether by deed, licence or otherwise;
"LEGAL OBLIGATION" means any obligation relating to the Premises or
their occupation or use imposed by any present or future statute or any
statutory instrument, EC directive, code of practice, regulation,
order, notice, direction or requirement of any Authority irrespective
of the person on whom such obligation is imposed;
"PARTY" means the Landlord or the Tenant or the Guarantor (if any);
"PERMITTED USER" means use as a light industrial/warehouse unit for the
storage and distribution of golf products together with a showroom
ancillary to such use, or such other use within classes B1(c), B2 or B8
of the schedule to the Town & Country Planning (Use Classes) Order 1987
(to which Clause 1.2.6 shall not apply) which is or are approved by the
Landlord (such approval not to be unreasonably withheld);
"PERPETUITY PERIOD" means a period of 80 years from the date of the
Lease or, if earlier, the date of expiration of the Term;
"PLAN" means a plan annexed to this deed;
"PLANNING ACTS" means the Town and Country Planning Xxx 0000 and all
other statutes containing provisions relating to town and country
planning when from time to time in force and all other statutes,
statutory instruments, regulations and orders included by virtue of
Clause 1.2.6;
"PLANT" means such plant, equipment and systems as may from time to
time be provided for the amenity of the Estate including specifically:
security and surveillance systems, fire alarm and prevention equipment,
sprinklers, public address and other communication systems;
"PREMISES" means Unit 2 on the Estate shown for the purposes of
identification only coloured pink on the Plan and all and any part of
such property and any additions thereto including
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(a) the whole of the structure, walls, foundations and roof
bounding the Unit and not separating the Unit from any other
Unit;
(b) Conduits and Plant to the extent that they are within and
exclusively serve the Unit (but no other Conduits or Plant);
(c) fixtures and fittings at the Unit whenever fixed except those
fixed by the Tenant which are generally regarded as tenant's
or trade fixtures;
(d) one half of any wall separating the Unit from an adjoining
Unit;
but excluding:
(a) the airspace above the building comprised in the Premises; and
(b) the airspace three metres above any unbuilt upon parts of the
Premises.
"REGULATIONS" means regulations relating to the management of the
Estate which the Landlord may reasonably issue from time to time in the
interests of good estate management, the current regulations for the
Estate being set out in Schedule 5;
"RELEASE" means any transmission (however occasioned) into or through
the Environment;
"REMEDIATION WORKS" means such works of whatever nature as are required
to ensure insofar as is reasonably practicable and in accordance with
modern practice as determined by an appropriately experienced and
qualified firm of environmental consultants that the Tenant is
complying with its covenants contained in clauses 3.13.1 and 3.13.3;
"RENT" means L211,000 per annum on and from the Rent Commencement
Date or such other amount as is from time to time agreed or determined
pursuant to Clause seven of the Lease or otherwise;
"RENT COMMENCEMENT DATE" means the 1st day of September 2003;
"RETAINED PROPERTY" means all parts of the Estate which are not from
time to time Units including (without prejudice to the generality of
the foregoing):
(a) the Common Parts;
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(b) office and other accommodation for staff managing the Estate;
(c) the gatehouse at the entrance of the Estate and security
barriers;
(d) plant rooms;
(e) perimeter fencing;
(f) storage areas;
(g) Conduits and Plant within or serving the Estate except those
within and exclusively serving a Unit; and
(h) common signage on the Estate;
"SCHEDULE" means a schedule to this deed;
"SERVICE CHARGE" means as defined in Clause five of this deed;
"SERVICES" means the services described in Clause five of this deed;
"SPECIFICATION" means the specification attached to the agreement for
this lease dated 4 June 2003;
"TERM" means 20 years commencing on 1 September 2003 and expiring on 31
August 2023 and any continuation of it;
"UNIT" means an individual unit of accommodation on the Estate that is
let or otherwise exclusively occupied or designed or intended for
letting or exclusive occupation otherwise than in connection with the
provision of Services;
"VAT" means Value Added Tax or other tax of a similar nature (and
unless otherwise expressly stated all references to Rent or other
monies payable by the Tenant are exclusive of any VAT charged or
chargeable thereon).
1.2 INTERPRETATION
The provisions of the Lease shall unless the context otherwise requires
be construed as follows.
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1.2.1 Obligations and liabilities of a Party comprising more than
one person are obligations and liabilities of such persons
jointly and severally.
1.2.2 Words importing one gender include all other genders.
1.2.3 The singular includes the plural and vice versa.
1.2.4 A covenant by the Tenant not to do something shall be
construed as including a covenant not to permit or knowingly
to suffer it to be done by a third party.
1.2.5 A consent or approval to be given by the Landlord is not
effective for the purposes of the Lease unless it is in
writing and signed by or on behalf of the Landlord.
1.2.6 Reference to a statute includes any amendment, modification,
extension, consolidation or re-enactment of it and any
statutory instrument, regulation or order made under it which
is for the time being in force.
1.2.7 Headings to Clauses, Schedules or parts of the Lease do not
affect the interpretation or construction of the Lease.
1.2.8 Where Rent has to be apportioned it shall be apportioned on a
yearly basis in accordance with the method recommended by the
Law Society in the Law Society Conveyancing Handbook 1999.
2 DEMISE
The Landlord demises the Premises to the Tenant:
2.1 together with the rights set out in Schedule 1;
2.2 except and reserving to the Landlord and to all others authorised from
time to time by the Landlord as set out in Schedule 2;
2.3 to hold the same to the Tenant for the Term;
2.4 subject to all rights, easements, quasi-easements, restrictions,
covenants and liabilities affecting the Premises including, without
prejudice to the generality of the foregoing, those described in
Schedule 3;
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2.5 yielding and paying to the Landlord:
2.5.1 the Rent without any deduction by equal quarterly payments in
advance on the usual quarter days in every year and
proportionately for any period of less than a year, the first
payment to be made on the Rent Commencement Date; and
2.5.2 the Additional Rent without any deduction by equal quarterly
payments in advance on the usual quarter days in every year
and proportionately for any period of less than a year, the
first payment to be made on 1 May 2003.
3 TENANT'S COVENANTS
3.1 INTRODUCTION
The Tenant covenants with the Landlord as set out in Clause 3 of the
Lease.
3.2 RENT
The Tenant shall pay the Rent and the Additional Rent as provided in
Clause two of the Lease without deduction or set- off and if so
required by banker's standing order.
3.3 OUTGOINGS
3.3.1 The Tenant shall pay, and indemnify the Landlord against, all
rates, taxes, assessments, impositions, duties, charges and
outgoings now or at any time during the Term payable by the
owner or occupier of, or otherwise due in respect of, the
Premises (except any tax assessed on the Landlord or any
superior landlord in respect of its ownership of, rental
income from or any dealing with its reversionary interest).
3.3.2 The Tenant shall pay and indemnify the Landlord against rates
on unoccupied property payable in respect of the Premises for
any period after the End of the Term (up to a maximum period
of three months) which would not have been payable had the
Premises been continuously occupied at all times prior to the
End of the Term.
3.3.3 The provisions of Schedule 4 apply in relation to VAT and the
Tenant covenants as therein provided.
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3.3.4 The Tenant shall pay, and indemnify the Landlord against, all
charges for water, electricity, gas and other services
(including meter rents) at the Premises.
3.4 REPAIR AND DECORATION
The Tenant shall (subject to the provisions relating to insurance set
out in Clause four of the Lease):
3.4.1 keep the Premises at all times in good and substantial repair
and condition;
3.4.2 keep all Plant comprised within the Premises in good working
order;
3.4.3 clean the Premises regularly and maintain them at all times in
a clean and tidy condition;
3.4.4 clean all windows regularly and as often as shall be
reasonably necessary;
3.4.5 decorate and keep the Premises decorated to a high standard
(in any event not less frequently than once in any period of
three years for the exterior and once in any period of five
years for the interior and also to the Landlord's reasonable
specification in the last six months of the Term if not
decorated in the last three years);
3.4.6 within two months (or sooner in emergency) of receipt of
notice from the Landlord of any breach of this Clause carry
out the repair, cleaning or decoration required to remedy the
breach, and if the Tenant fails diligently to comply with such
notice and the Landlord enters the Premises to carry out such
work the Tenant shall upon demand pay to the Landlord as a
debt all costs which the Landlord so incurs.
3.5 ALTERATIONS
3.5.1 Not to alter cut harm or remove any of the principal or load
bearing walls floors or other structures of or enclosing the
building on the Premises nor to make any other alterations
improvements or additions of a structural nature nor to make
any alterations improvements or additions to the exterior of
the Premises.
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3.5.2 Not to make any alterations or additions of a non-structural
nature to the building on the Premises without having first
obtained the prior written consent of the Landlord such
consent not to be unreasonably withheld except that the tenant
may install alter and remove demountable partitioning.
3.6 SIGNS
The Tenant shall not:
3.6.1 fix anything to the exterior of the Premises nor to the
exterior or interior of any doors or windows, unless permitted
by this Clause;
3.6.2 display any flashing or moving sign which is visible from
outside the Premises;
3.6.3 display any notice, sign, poster or advertisement on the
exterior of the Premises except to indicate the name and
business of the Tenant in a manner first approved by the
Landlord (such approval not to be unreasonably withheld)
PROVIDED ALWAYS that the Tenant shall be free to place a sign of
reasonable dimensions displaying the name of the Tenant on the northern
and western elevation of the building forming part of the Premises and
on any Estate signboard first approved by the Landlord (such approval
not to be unreasonably withheld).
3.7 USER
3.7.1 The Tenant shall not use the Premises otherwise than for the
Permitted User.
3.7.2 The Tenant shall not use the Premises in a manner which may
be, or become, or cause a nuisance, annoyance, disturbance,
inconvenience, injury or damage to the Landlord or any other
person.
3.7.3 The Tenant shall not store or stack anything on the external
areas of the Premises.
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3.7.4 The Tenant shall not reside or sleep on the Premises, nor use
them for any sale by auction or for any dangerous, noisy or
offensive purpose or for any illegal or immoral activity.
3.7.5 The Tenant shall indemnify the Landlord against all VAT in
respect of the Premises which the Landlord has to repay to HM
Customs & Excise including any under the capital goods scheme
and against all VAT which is irrecoverable by the Landlord
(together in each case with interest, penalties and costs) due
to the disapplication of any election to waive exemption to
tax made by the Landlord arising in any way from the use of
the Premises for an exempt purpose.
3.7.6 The Tenant shall not overload the structure of the Premises.
3.7.7 The Tenant shall not store or bring upon the Premises any
materials or liquid of a specially combustible, inflammable or
offensive nature.
3.7.8 The Tenant shall not make use of Conduits beyond their
capacity, nor in a manner which may block or damage them, and
in particular will not stop up or obstruct or permit oil,
grease or other deleterious matter or substance to enter any
drain or sewer.
3.7.9 The Tenant shall not cause or permit any Environmental Harm.
3.7.10 The Tenant shall not obstruct the Common Parts.
3.7.11 The Tenant shall not enter into any wayleaves, concessions or
arrangements with telecommunications undertakers except in
relation to the supply of telecommunication services
exclusively for the Permitted User.
3.7.12 The Tenant shall comply with the Regulations.
3.8 ALIENATION
3.8.1 Unless otherwise permitted under this Clause the Tenant shall
not:
(a) hold the Premises expressly or impliedly on trust for
another person;
(b) part with possession of the Premises;
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(c) share possession of the Premises with another person;
(d) allow anyone other than the Tenant, any lawful
subtenant, or their respective officers and employees
to occupy the Premises.
3.8.2 ASSIGNMENT
(a) The Tenant shall not assign a part (as distinct from
the whole) of the Premises.
(b) The Tenant shall not assign the whole of the Premises
without the prior consent of the Landlord (which will
not be unreasonably withheld).
(c) It is agreed that, for the purposes of Section 19(1A)
of the Landlord and Xxxxxx Xxx 0000, the Landlord may
withhold its consent to an assignment of the whole if
any of the following circumstances exists:
(i) there is a substantial breach of a covenant
in the Lease by the Tenant; or
(ii) the proposed assignee is a member of the
same group of companies (as defined by
Section 42 of the Landlord and Tenant Act
1954) as the Tenant;
(iii) in the reasonable opinion of the Landlord
the proposed assignee is not of sufficient
financial standing to enable it to comply
with the Tenant's covenants in the Lease.
(d) It is agreed that for the purposes of Section 19(1A)
of the Landlord and Xxxxxx Xxx 0000, the Landlord may
grant consent subject to all or any of the conditions
set out below:
(i) the proposed assignee has, if reasonably
required by the Landlord, procured a
covenant by deed with the Landlord, from two
individuals who are or a company which is
reasonably acceptable to the Landlord as
surety for the assignee;
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(ii) the proposed assignee has, if reasonably
required by the Landlord, deposited with the
Landlord such sum by way of Rent as the
Landlord reasonably requires as security for
the performance by the assignee of its
obligations under the Lease;
(iii) the Tenant has, if reasonably required by
the Landlord; first entered into an
authorised guarantee agreement as defined in
Section 16 of the Landlord and Tenant
(Covenants) Xxx 0000;
(iv) the Tenant has, if reasonably required by
the Landlord, first procured that any surety
for it under the Lease has entered into any
such authorised guarantee agreement required
under Clause 3.8.2(d)(iii) in such terms as
the Landlord may reasonably require for the
purpose of guaranteeing the performance by
the Tenant of its obligations under the
authorised guarantee agreement.
(e) It is agreed that the Landlord acting reasonably may
withhold consent to an assignment of the whole of the
Premises on a ground which is not referred to in
Clause 3.8.2(c) and that it may acting reasonably
grant consent subject to a condition which is not
specified in Clause 3.8.2(d) subject in each case to
such withholding of consent or imposition of a
condition being reasonable.
3.8.3 CHARGES
(a) The Tenant shall not charge a part (as distinct from
the whole) of the Premises.
(b) The Tenant may without consent charge the whole of
the Premises to a bank or similar financial
institution for the purpose only of borrowing money
on the security of the Lease but, otherwise, the
Tenant shall not charge the whole of the Premises
except with the
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prior consent of the Landlord (which shall not be
unreasonably withheld).
3.8.4 UNDERLETTINGS
(a) The Tenant shall not underlet the whole or a part of
the Premises:
(i) unless the proposed undertenant has first
covenanted by deed with the Landlord, in
such form as the Landlord may reasonably
require, that with effect from the date of
the underlease and during the term thereof
or until such time as the underlease is
lawfully assigned the undertenant will
observe and perform all the provisions of
the underlease to be observed and performed
by the undertenant; nor
(ii) (where the proposed undertenant is a
corporate body and the Landlord reasonably
so requires) without first procuring a
covenant by deed with the Landlord from two
individuals who are, or a company which is
acceptable to the Landlord as surety for the
undertenant; nor
(iii) except by way of a PERMITTED UNDERLEASE; nor
(iv) without the prior written consent of the
Landlord (which will not be unreasonably
withheld).
3.8.5 A PERMITTED UNDERLEASE is an underlease which:
(a) is granted without any fine or premium;
(b) reserves a rent not less than the greater of the rent
which the Tenant ought reasonably to obtain in the
open market upon the grant of such underlease and the
Rent then payable;
(c) incorporates provisions requiring the undertenant to
obtain the Landlord's consent (which shall not be
unreasonably withheld) to any proposed assignment of
the premises comprised in the underlease, and
requiring the proposed assignee to covenant by deed
with the Landlord in such form as the Landlord may
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reasonably require that with effect from the date of
the assignment of the premises comprised in the
underlease and until such premises are further
lawfully assigned the proposed assignee will observe
and perform all the provisions of the underlease to
be observed and performed by the undertenant;
(d) incorporates provisions for the review of rent at the
same times and on the same basis as in the Lease;
(e) is (so far as is consistent with an underlease) in a
form substantially the same as the Lease except that
further subletting shall be prohibited; and
(f) is excluded from the operation of sections 24-28 of
the Landlord and Xxxxxx Xxx 0000.
3.8.6 The Tenant shall enforce and shall not waive or vary the
provisions of an underlease and shall operate at the relevant
dates of review the rent review provisions contained in an
underlease but shall not agree the rent upon such a review
without the prior approval of the Landlord.
3.8.7 ASSOCIATED COMPANIES
The Tenant may share occupation of the Premises with a company
which is a member of the same group (as defined by Section 42
of the Landlord and Tenant Act 1954):
(a) for so long as both the Tenant and that company
remain members of the same group; and
(b) provided that no tenancy is created; and
(c) provided that within 21 days of such sharing the
Landlord receives notice of the company sharing
occupation and the address of its registered office.
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3.8.8 NOTIFICATION
(a) The Tenant shall upon request from time to time
provide within one month all information which the
Landlord may request under section 40 (1)(a) and (b)
of the Landlord and Tenant Xxx 0000.
(b) The Tenant shall within 28 days of any assignment,
charge or underlease of or of any other devolution of
the Lease or of any interest deriving from the Lease
give notice thereof to the Landlord's solicitor,
produce for registration the original or a certified
copy of the document effecting or evidencing such
devolution and pay such reasonable registration fee
as the Landlord's solicitor may require being not
less than(pound)40 (plus VAT).
3.9 LEGAL OBLIGATIONS
3.9.1 The Tenant shall observe and comply with all Legal
Obligations.
3.9.2 If the Tenant receives from an Authority formal notice of a
Legal Obligation it shall forthwith produce a copy to the
Landlord and if such Legal Obligation is in the Landlord's
opinion contrary to the interests of the Landlord the Tenant
shall make such objection or representation against it as the
Landlord may require.
3.9.3 Where a Legal Obligation requires the carrying out of works
the Tenant shall so far as such Legal Obligation permits also
comply with the provisions of the Lease in relation to such
works.
3.9.4 Without prejudice to the generality of this Clause the Tenant
shall in particular observe and comply with all Legal
Obligations of any appropriate Authority relating to health,
safety, means of escape in case of fire, and the protection
and preservation of life and property, carrying out such works
of modification and improvement to the Premises as may from
time to time be required by such Legal Obligations.
3.9.5 The Tenant shall carry out any works to the Premises not only
in accordance with all Legal Obligations but also with good
quality materials
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and in a good and workmanlike manner to the reasonable
satisfaction of the Landlord.
3.9.6 The Tenant shall knowingly not do, or omit to do, in relation
to the Premises or their use or occupation anything by reason
of which the Landlord may incur any liability whether for
costs, a penalty, damages, compensation or otherwise.
3.9.7 The Tenant shall not cause or permit a nuisance on or in
relation to the Premises, and if a nuisance occurs shall
forthwith take all necessary action to xxxxx it.
3.9.8 The Tenant shall not obstruct any means of emergency escape
nor use them except for their proper purposes.
3.9.9 The Tenant shall perform and observe all covenants and other
provisions contained or referred to in any documents listed in
Schedule 3 insofar as they relate to or affect the Premises or
their use or occupation.
3.9.10 If the Tenant does not comply with a Legal Obligation, or does
not xxxxx a nuisance, the Landlord may do what it considers
necessary to comply with the Legal Obligation or xxxxx the
nuisance and the Tenant shall upon demand pay to the Landlord
all costs which the Landlord acting reasonably so incurs.
3.9.11 The Tenant shall maintain a health and safety manual for the
Premises and shall supply the Landlord with an updated copy of
the manual when reasonably requested.
3.10 PLANNING
3.10.1 The provisions of this Clause supplement the general
obligations imposed by Clause 3.9.
3.10.2 The Tenant shall not commit a breach of planning control (as
defined in section 171A(1) of the Town and Country Planning
Act 1990) in relation to the Premises.
16
3.10.3 The Tenant shall observe and comply with the Planning Acts in
relation to the Premises.
3.10.4 The Tenant shall make no application for planning permission
in relation to the Premises without the Landlord's prior
consent, such consent not being unreasonably withheld.
3.10.5 The Tenant shall supply to the Landlord promptly and without
further request copies of all applications, notices, decisions
and other formal communications under the Planning Acts which
relate in any way to the Premises, and where such
communications relate only to the Premises or to an
application made by the Tenant then the Tenant shall at its
own expense take such action to protect the Landlord's
interests as the Landlord may require.
3.10.6 The Tenant shall not implement a planning permission until the
Landlord has given its consent (such consent not to be
unreasonably withheld where planning permission is granted
pursuant to an application approved by the Landlord) and if
such planning permission is implemented, the Tenant shall:
(a) comply with all conditions imposed by the planning
permission and any related planning agreement; and
(b) carry out all works before the End of the Term.
3.11 DEFECTIVE PREMISES
The Tenant shall promptly give notice to the Landlord of any defect in
the Premises in respect of which the Landlord may have a liability or
duty of care under the Lease, the Defective Premises Xxx 0000 or any
other Legal Obligation.
3.12 ENCROACHMENTS
3.12.1 The Tenant shall not stop up, darken or obstruct any window or
light at the Premises.
3.12.2 The Tenant shall not permit and shall take all reasonable
measures to prevent any new window, light, opening, doorway,
pathway, Conduit or
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other encroachment or easement being made or acquired in,
against, out of, or upon the Premises.
3.13 ENVIRONMENT
3.13.1 The Tenant shall comply with all Environmental Law in its use
and occupation of the Premises and shall ensure that all
Environmental Permits are obtained, maintained in full force
and effect and complied with at all times.
3.13.2 On request from the Landlord, the Tenant shall provide to the
Landlord full copies of all Environmental Permits and of all
correspondence with Authorities regarding the Tenant's
compliance with Environmental Law at the Premises.
3.13.3 The Tenant shall not cause or permit to be caused any Release
of Hazardous Substances at, on, over or under the Premises
otherwise than in accordance with the terms of an
Environmental Permit.
3.13.4 The Tenant shall notify the Landlord in writing as soon as
reasonably practicable on becoming aware of any breach of its
obligations under Clauses 3.13.1 to 3.13.3 above and shall
then proceed with all due speed and diligence to take all such
steps as are necessary fully to remedy the consequences of
such breach (including the carrying out of Remediation Works,
if necessary) and to prevent any recurrence of it to the
Landlord's reasonable satisfaction.
3.13.5 The Tenant shall permit the Landlord whenever reasonably
required (and in any event in the last six months of the Term
and on every occasion on which an application to assign or
underlet is made pursuant to Clause 3.8.2(b) or Clause 3.8.5)
to enter the Premises to conduct Investigation Works. The
Tenant shall provide such information as is reasonably
requested in connection with the same, and as soon as
reasonably practicable following receipt of a written report
from the Landlord or its consultants identifying any breach of
the terms of Clauses 3.13.1 or 3.13.3 the Tenant shall proceed
to carry out all necessary Remediation Works to the reasonable
satisfaction of the Landlord. The cost of Investigation
18
Works shall be borne by the Landlord unless the Investigation
Works reveal that the Tenant is in breach of any of its
obligations under this Clause 3.13 in which case the cost of
the Investigation Works and the cost of carrying out
Remediation Works shall be borne by the Tenant.
3.14 LANDLORD'S RIGHTS
3.14.1 The Tenant shall permit the Landlord, any superior landlord
and persons authorised by any of them to exercise any right
excepted and reserved by Schedule 2 and in addition the right
to enter the Premises at all reasonable times after not less
than seven days' notice (except in emergency) with tools and
equipment (if appropriate):
(a) to inspect the Premises to ascertain whether the
Tenant is complying with the Lease or to view their
state and condition or to make surveys or to show the
Premises to prospective tenants or purchasers or for
any other reasonable purpose.
(b) to execute works following the Tenant's failure to
comply with a notice served under Clause 3.4.6
(without prejudice to any other remedy available to
the Landlord);
(c) to xxxxx a nuisance if the Tenant does not do so;
(d) to comply with a Legal Obligation if the Tenant does
not do so;
(e) to remove any goods stored or stacked on the external
parts of the Premises;
(f) to remove any obstruction of the Common Parts;
(g) to take schedules or inventories;
(h) to inspect or execute works of repair, maintenance,
decoration, construction, alteration, improvement or
otherwise to the Estate or any other property or in
connection with the provision of Services
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the person entering causing as little damage and disturbance
as is reasonably practicable and making good as soon as
practicable any physical damage to the Premises so caused.
3.14.2 The Tenant shall permit the Landlord, any superior landlord,
and persons authorised by any of them to carry out any works
of repair, construction, development, improvement, alteration
or otherwise to, or use in any way the Estate (apart from the
Premises) or any other property and to erect scaffolding
notwithstanding temporary interference with the access of
light or air to the Premises or with any other right or
easement, but so far as practicable access to the Premises and
supplies of water, gas and electricity and drainage (where
applicable) will be maintained.
3.14.3 The Tenant shall permit the affixation to suitable parts of
the Premises of reletting notices during the six months
preceding the End of the Term and of notices relating to the
disposal or acquisition of any reversionary interest at any
time.
3.14.4 Any entry by the Landlord under this Clause shall not
constitute forfeiture or repudiation of the Lease.
3.15 COSTS
The Tenant shall pay as a debt due to the Landlord and indemnify the
Landlord against all liability, proper costs, fees, charges,
disbursements and expenses connected with incidental to, consequent
upon:
3.15.1 an application for the Landlord's consent (whether or not the
consent is given or the application is withdrawn);
3.15.2 a schedule of dilapidations during the Term or after the End
of the Term;
3.15.3 notice pursuant to a provision of the Lease or under sections
146 or 147 of the Law of Property Xxx 0000 and proceedings
under those sections even if forfeiture is avoided otherwise
than by relief granted by the court;
3.15.4 the recovery of arrears of Rent or other sums payable under
the Lease;
3.15.5 the breach of any covenant or obligation of the Tenant under
the Lease;
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3.15.6 abating a nuisance which the Tenant fails to xxxxx; and
3.15.7 complying with a Legal Obligation if the Tenant does not do
so.
3.16 INTEREST
Without prejudice to any other right or remedy of the Landlord, the
Tenant shall pay to the Landlord Interest on any Rent and VAT (if
applicable) which is not paid to the Landlord on the date it is due
(whether payment is formally demanded or not) and Interest on any other
sum which is not paid to the Landlord by the later of the date it is
due and the date fourteen days after a demand for payment is made.
3.17 INDEMNITY
The Tenant is responsible for, and shall indemnify and keep the
Landlord indemnified against, all claims, demands, actions, or
proceedings made or brought and all losses, damages, costs, expenses
and liabilities incurred, suffered or arising directly or indirectly in
respect of or otherwise connected with:
3.17.1 the use and occupation of the Premises;
3.17.2 the state of repair and condition of the Premises (except to
the extent (if any) caused by any act or default of the
Landlord);
3.17.3 any act, default, omission or negligence of the Tenant or of
any other person at the Premises with the express or implied
authority of the Tenant or of anyone deriving title through
the Tenant; and
3.17.4 any breach of any covenant or other provision of the Lease to
be observed or performed by the Tenant.
3.18 YIELDING UP
At the End of the Term the Tenant shall:
3.18.1 remove all signs and tenant's fixtures and fittings and
furniture and effects making good any damage to the Premises
so caused;
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3.18.2 remove any alterations or additions to the Premises if and to
the extent reasonably requested by the Landlord making good
any damage to the Premises so caused;
3.18.3 replace with carpets of equal or better quality and appearance
any fitted carpets provided by the Landlord at the
commencement of the Term; and
3.18.4 yield up the Premises in a state and condition consistent with
due compliance by the Tenant with its covenants and
obligations under the Lease.
4 INSURANCE
4.1 DEFINITIONS
Where in this part the following words in bold type commence with
capital letters they have the following meanings unless the context
otherwise requires:
"INSURANCE" means insurance effected at competitive rates in the open
market in such insurance office of repute or with such underwriters and
through such agency as the Landlord may decide and subject to such
excesses, exclusions, limitations and conditions as the insurer may
require and covering:
4.1.1 the Premises (but specifically excluding tenant's and trade
fixtures and fittings) against the Insured Risks for a sum
sufficient to cover the cost of reinstatement assuming total
loss including all applicable VAT and ancillary costs (such as
site clearance and professional fees) and appropriate
allowance for inflation;
4.1.2 Loss of Rent;
4.1.3 such matters in relation to the Estate not otherwise
specifically mentioned in this part or effected under Clause
five of the Lease as the Landlord may from time to time
consider prudent;
"INSURED RISKS" means risks of loss or damage by fire, xxxxx, xxxxxxx,
flood, lightning, explosion, aircraft, articles dropped from aircraft,
riot, civil commotion, malicious damage, impact, bursting and
overflowing of water tanks, apparatus and pipes (but excluding such
risks as the Landlord in its reasonable discretion considers
22
cannot be insured against in the UK market at a reasonable rate) and
risks of loss or damage by such other perils against which the Landlord
may insure;
"LOSS OF RENT" means the loss of all Rent for a period of three years.
4.2 LANDLORD'S INSURANCE COVENANTS
The Landlord covenants with the Tenant that the Landlord will:
4.2.1 effect and maintain Insurance (but only so far as it is not
vitiated by any act, neglect or default of the Tenant, anyone
deriving title through the Tenant or anyone at the Premises
with the express or implied authority of either of them);
4.2.2 upon reasonable request from time to time produce to the
Tenant full details of the policies of Insurance and evidence
that they are in force;
4.2.3 notify the Tenant of any material change in the provisions of
any policy of insurance from time to time;
4.2.4 in the event of any loss or damage against which it has
covenanted to effect Insurance, apply all monies received from
the insurer (other than for Loss of Rent) and from the Tenant
pursuant to Clause 4.4 in making good such loss or damage,
carrying out any necessary works of reinstatement as soon as
reasonably practicable and will to the extent that such monies
are insufficient as a result of the Landlord's act, neglect or
default make up such insufficiency out of its own resources.
4.3 ABATEMENT OF RENT
4.3.1 If by reason of destruction or damage by an Insured Risk the
Premises or the main access thereto are wholly or partially
unfit for occupation and use or inaccessible and Insurance has
not been vitiated or any payment refused by reason of some
act, neglect or default of the Tenant, someone deriving title
through the Tenant, or some person with the express or implied
authority of either of them then the Rent and Service Charge
or a fair proportion thereof according to the nature and
extent of the damage sustained, shall cease to be payable
until the Premises are again fit for
23
occupation and use and accessible to the extent only that such
Loss of Rent is recoverable under Insurance against Loss of
Rent.
4.3.2 If the Premises are so damaged or destroyed by any of the
Insured Risks as to become unfit for occupation or use and
they remain so unfit three years after the damage or
destruction (the "Three Year Period") then either party may
end this Lease by serving on the other not less than three
months written notice given within one month after the
expiration of the Three Year period.
4.3.3 Termination under the preceding clause shall not affect the
rights that either party may have against the other and any
monies received under the insurance policy belong to the
Landlord.
4.3.4 A dispute as to the amount or duration of such cesser of Rent
and Service Charge shall be referred to arbitration under the
Arbitration Xxx 0000 the arbitrator to be appointed (failing
agreement between the Parties) by the President of the Royal
Institution of Chartered Surveyors upon the application of
either Landlord or Tenant.
4.4 TENANT'S INSURANCE COVENANTS
The Tenant covenants with the Landlord that the Tenant will:
4.4.1 pay to the Landlord upon demand all premiums and other
expenses (including valuation fees) incurred by the Landlord
in effecting and maintaining Insurance;
4.4.2 comply with the insurers' requirements and recommendations in
relation to the Premises and will not do, or omit to do,
anything which may make any policy of Insurance void or
voidable in whole or in part or increase the premium for any
policy but if as a result of a breach of this covenant a
premium is increased then the Tenant will forthwith upon
demand pay to the Landlord the whole of such increase;
4.4.3 provide and maintain such fire fighting equipment on the
Premises as the insurer or an Authority may require;
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4.4.4 forthwith notify the Landlord of any loss, damage or
destruction of or relating to the Premises and of any other
event which comes to the attention of the Tenant and which may
affect or give rise to a claim under a policy of Insurance;
4.4.5 forthwith upon demand pay to the Landlord an amount equal to
all monies which the Landlord is unable to recover under a
policy of Insurance by reason of:
(a) an act, default or omission of the Tenant; or
(b) a condition of the policy; or
(c) the imposition by the insurer or the reasonable
acceptance by the Landlord of an obligation to bear
part of an insured loss (commonly called an excess);
4.4.6 not effect any insurance equivalent to the Insurance, but if
in breach of this covenant it does so, it shall pay to the
Landlord all monies received under such insurance;
4.4.7 effect third party and public liability insurance at the
Premises for such sum as may prudently be required in order to
meet potential claims from time to time;
4.4.8 when the Premises are not in use (unoccupied) ensure that:
(a) the Premises are secure against intrusion;
(b) the Premises are inspected both internally and
externally at least once a week;
(c) all electrical services (except those serving fire or
security alarms or similar apparatus), water and gas
supplies are turned off and all plumbing/heating
installations are drained;
(d) all rubbish and combustible materials are removed
from inside or near the Premises.
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5 SERVICE CHARGE
5.1 THE SERVICES
In Clause 5 of the Lease the SERVICES are services in respect of the
management and maintenance of the Estate including (but not limited
to):
5.1.1 the inspection, testing, repair, servicing and maintenance of
the Retained Property (including replacement of parts where
appropriate);
5.1.2 cleaning and lighting the Retained Property and refuse
disposal;
5.1.3 decorating and furnishing the Retained Property and providing
and maintaining decorative features (such as landscaped areas,
flowers and seasonal directions) including replacing any
landscaped areas in accordance with the principles of good
estate management;
5.1.4 operating and maintaining the Plant;
5.1.5 providing such further and improved Plant as an Authority may
require, or for the greater amenity of those using the Estate,
or for the more efficient management of the Estate;
5.1.6 carrying out such works and taking such other action as may be
appropriate in order to comply with the lawful requirements or
recommendations of an insurer or an Authority;
5.1.7 providing, maintaining and keeping in repair all signboards
from time to time at the Estate;
5.1.8 pedestrian and vehicular traffic control, security (including
a CCTV system and the provision of security staff) and the
preparation and enforcement of Regulations; and
5.1.9 insurance of Plant and equipment and of the furnishings and
contents of the Retained Property and such other insurance
relating to the management of the Estate (including third
party and public liability at the Estate) as the Landlord may
consider prudent.
26
5.1.10 providing such other services or facilities for the greater
amenity of those using the Estate or for the more efficient
management of the Estate.
5.2 SERVICE COSTS
In this part of the Lease SERVICE COSTS means the aggregate of the
costs and expenses incurred by the Landlord in the provision of the
Services including (but not limited to):
5.2.1 all rates, taxes, charges, assessments and outgoings payable
in respect of all or any part of the Retained Property or in
respect of the Estate as a whole (as distinct from any one or
more Units);
5.2.2 the cost of water, electricity, gas, oil or other supplies for
the provision of the Services or otherwise consumed in the
Retained Property;
5.2.3 the cost of employing or arranging for the employment of staff
to provide the Services, such cost to include all reasonable
incidental expenditure such as (without prejudice to the
generality of the foregoing) that relating to: insurance,
pension and welfare contributions; the provision of clothing;
the provision of tools and equipment; the provision of
accommodation;
5.2.4 the cost of providing, maintaining and renewing such
equipment, materials and supplies as are from time to time
required in order to provide the Services;
5.2.5 the cost of all maintenance and other contracts entered into
in relation to the provision of the Services;
5.2.6 all contributions to the roads, pipes, walls, structures or
other things common to or used in common by the Estate and
other property;
5.2.7 the cost to the Landlord of complying with, or contesting the
requirements or proposals of, any Authority insofar as they
relate to the Estate (as distinct from any particular Unit or
Units);
5.2.8 the cost of carrying out health and safety audits, fire safety
audits and environmental audits in accordance with good estate
management;
27
5.2.9 the fees of managing agents retained by the Landlord in
relation to the management of the Estate, the provision of the
Services and the collection of Service Charge and Estimated
Service Charge (as defined in Clause 5.3) due from tenants and
occupiers of the Estate (or where any such task is carried out
by the Landlord a reasonable charge for the Landlord in
relation thereto);
5.2.10 the cost of preparing and auditing Service Charge accounts
(whether carried out by the Landlord or by the Landlord's
agents or accountants);
5.2.11 the cost of obtaining such professional advice as may from
time to time be appropriate in relation to the management of
the Estate and the provision of Services;
5.2.12 VAT (or other tax) where chargeable on any of the Service
Costs to the extent that it cannot be recovered by the
Landlord;
5.2.13 all other costs, charges, expenses and outgoings incurred in
or incidental to the provision of the Services; and
5.2.14 such provision for anticipated future expenditure in relation
to the Services as may be appropriate in relation to the good
management of the Estate and provision of Services and in
accordance with the current Code of Commercial Practice.
5.3 PROVISION OF SERVICES
5.3.1 The Landlord will:
(a) keep the Retained Property in good and substantial
repair and condition and, where appropriate, keep the
Plant in the Retained Property in good working order
and the Common Parts adequately cleaned and lit;
(b) provide an appropriate standard for the good
management of the Estate and in a prudent manner the
Services and such other services as are desirable in
the interests of good estate management;
28
(c) comply with all regulations of any Authority in
respect of the Retained Property.
PROVIDED ALWAYS the Landlord shall consult with and have
regard to the wishes of the Tenant before providing any such
other Services.
5.3.2 The Landlord will have no liability to the Tenant:
(a) for failure to provide a Service during any period
when the Tenant is in arrears with payment of Rent,
insurance contribution, Service Charge or any other
monies due from the Tenant to the Landlord under the
Lease;
(b) for the interruption of a Service for reasons of
inspection, maintenance, repair or other works (in
which event the Landlord will restore the Service as
soon as reasonably practicable);
(c) for failure to provide a Service due to damage,
breakdown, inclement weather shortage of fuel or
water, or any other cause beyond the Landlord's
reasonable control (although the Landlord will then
take all reasonable steps to restore such Service or
provide an alternative Service as soon as reasonably
practicable)
(d) for withdrawal of a Service if the Landlord
reasonably considers it is no longer appropriate; or
(e) in respect of any act, omission or negligence of any
employee of the Landlord or other person providing or
purporting to provide any Service.
5.3.3 The Tenant shall not be required to pay as part of the Service
Charge:
(a) the initial capital cost of the construction or any
building on the premises or the Retained Property; or
(b) the initial capital cost of the fixtures equipment
plant and machinery within any building on the
Premises or the Retained Property; or
29
(c) the initial capital cost of providing the services to
any building on the Premises or the Retained Property
including the heating and air conditioning; or
(d) the cost of remedying any damage caused by an Insured
Risk.
5.4 THE SERVICE CHARGE
5.4.1 Where in this clause the following words in bold type commence
with capital letters they have the following meanings unless
the context otherwise requires:
"ACCOUNT DATE" means 31 March in each year or such other date
in each year as the Landlord may stipulate;
"ACCOUNT PERIOD" means the period from and excluding one
Account Date up to and including the next Account Date;
"ACCOUNT STATEMENT" means a statement certified by a duly
qualified chartered surveyor or chartered accountant (and in
the absence of manifest error to be accepted by the Tenant as
conclusive) showing: the Total Charge for the relevant Account
Period; the Due Proportion; the Service Charge; details of all
Estimated Service Charge received in respect of the relevant
Account Period and any balance of Service Charge due from the
Tenant or refund due to the Tenant;
"DUE PROPORTION" means a fair proportion as conclusively
determined from time to time by the Landlord acting
reasonably;
"ESTIMATED SERVICE CHARGE" means payment on account of the
Service Charge;
"SERVICE CHARGE" means the Due Proportion of the Total Charge;
"TOTAL CHARGE" means the total of all Service Costs during an
Account Period net of any receipts from insurers, the Tenant
or other occupiers of the Estate or third parties (otherwise
than by way of a service charge) which are properly applicable
towards payment of such Service Costs.
30
5.4.2 The Tenant hereby covenants to pay to the Landlord by way of
equal instalments in advance on each quarter day during the
Term and proportionately for less than an Account Period an
Estimated Service Charge of such sum as the Landlord may
reasonably demand having regard to actual and anticipated
Service Costs.
5.4.3 As soon as practicable after an Account Date the Landlord
shall submit to the Tenant an Account Statement for the
Account Period ending on that Account Date and
(a) if the Account Statement shows that a balance of
Service Charge is due from the Tenant, the Tenant
shall pay such balance to the Landlord within
fourteen days of receipt of the Account Statement;
(b) if the Account Statement shows that a refund is due
to the Tenant, such refund shall during the Term be
set off against future Service Charge Payments and
following the determination of the Term be set off
against any other monies due from the Tenant to the
Landlord and the balance (if any) paid to the Tenant.
5.4.4 The provisions of this clause will survive the End of the
Term.
5.4.5 The Service Charge payable by the Tenant shall not be
increased by any part of the Estate being unlet at any time.
6 LANDLORD'S COVENANTS
6.1 QUIET ENJOYMENT
The Landlord covenants with the Tenant that it will permit the Tenant
peaceably and quietly to hold and enjoy the Premises without any
interruption or disturbance from or by the Landlord or any person
claiming under or in trust for the Landlord.
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7 RENT REVIEW
7.1 DEFINITIONS AND INTERPRETATION
7.1.1 Where in Clause 7 of the Lease the following words in bold
type commence with capital letters they have the following
meanings unless the context otherwise requires:
"OPEN MARKET RENT" is as defined in Clause 7.3;
"RELEVANT REVIEW DATE" means the Review Date by reference to
which Rent is being reviewed;
"REVIEW DATE" means any one of the Review Dates;
"REVIEW DATES" means 1 September 2008, 1 September 2013 and 1
September 2018.
7.1.2 Time is not of the essence.
7.2 REVIEW OF RENT
With effect from each Review Date the Rent shall be the amount payable
(but for any abatement of Rent) immediately prior to that Review Date
or if Greater the Open Market Rent as agreed or determined under Clause
7 of the Lease;
7.3 OPEN MARKET RENT
"OPEN MARKET RENT" means the market rent which would reasonably be
expected to become payable in respect of the Premises after the expiry
of a rent free period of such length for fitting out the Premises as
would be negotiated in the open market between a willing landlord and a
willing tenant:
7.3.1 upon a letting of the Premises:
(a) as a whole;
(b) by a willing landlord to a willing tenant;
(c) with vacant possession;
32
(d) on the open market;
(e) without a fine or premium;
(f) for a term of 10 years commencing on the Relevant
Review Date;
(g) including provisions for review of rent at five
yearly intervals; and
(h) otherwise on the same terms as the Lease (except as
to the amount of the Rent, except as to the
reservation of the Additional Rent and except for
Clause 3.7.4 which shall be deemed to be omitted).
7.3.2 assuming that:
(a) the covenants and provisions of the Lease on the part
of the Landlord and the Tenant have been fully
performed and observed;
(b) no work has been carried out to the Premises (unless
by the Landlord or a superior landlord) which has
diminished their rental value;
(c) if the Premises have been destroyed or damaged they
have been fully restored;
(d) any licence required by law for using the Premises
for the Permitted User or any other use of the
Premises has been obtained and is available for the
benefit of any willing tenant;
7.3.3 but disregarding:
(a) any effect on rent of the fact that the Tenant, any
undertenant or any of their respective predecessors
in title have been in occupation of the Premises;
(b) any goodwill attached to the Premises by reason of
the carrying on of the business of the Tenant, any
undertenant or any of their predecessors in title;
(c) any adverse effect upon rent of any temporary works,
operations or other activities on any adjoining or
neighbouring property;
33
(d) any effect on rent attributable to any improvement to
the Premises or any part of the Premises carried out
by the Tenant or a permitted undertenant with the
Landlord's consent where required but without cost to
the Landlord and not pursuant to an obligation to the
Landlord;
(e) on the Review Date of 1 September 2008 only (but not
at any subsequent Review Date) any effect on rent
attributable to the works described in the
Specification.
7.4 PROCEDURE
7.4.1 The Landlord may serve upon the Tenant notice during the
period of nine months before, or at any time after, a Review
Date requiring the Rent to be increased with effect from that
Review Date or stating that the Rent is not to be increased.
7.4.2 If the Landlord serves notice requiring the Rent to be
increased (REVIEW NOTICE) the Landlord and the Tenant shall
endeavour to agree the Open Market Rent as at the Relevant
Review Date.
7.4.3 If the Landlord and the Tenant do not agree the Open Market
Rent within three months after service of a Review Notice or
by the date three months before the Relevant Review Date
(whichever is the later), either may by notice to the other
require the Open Market Rent to be determined by a Chartered
Surveyor having at least ten years' experience in assessing
the rental value of premises similar to the Premises and
acting as a single arbitrator.
7.4.4 If the Landlord and the Tenant do not agree on the joint
appointment of an arbitrator the arbitrator shall be nominated
on the joint application of the Landlord and the Tenant (or if
either of them neglects to concur in such application then on
the sole application of the other) by the President or other
chief officer or acting chief officer for the time being of
the Royal Institution of Chartered Surveyors.
7.4.5 The arbitrator shall act as an arbitrator in accordance with
the Arbitration Xxx 0000.
34
7.4.6 The arbitrator shall within three months of his appointment,
or within such extended period as the Landlord may agree, give
to the Landlord and the Tenant written notice of the amount of
the Open Market Rent as determined by him, but if he does not,
or if for any reason it becomes apparent that he will not be
able to, complete his duties in accordance with his
appointment, the Landlord and the Tenant may agree upon or
either of them may apply for the appointment of another
arbitrator (which procedure may be repeated as often as
necessary) pursuant to the provisions of this Clause.
7.5 DELAYED REVIEW
Where the Rent payable with effect from a Review Date is not
ascertained prior to that Review Date the Tenant shall:
7.5.1 with effect from the Relevant Review Date pay an INTERIM RENT
at the rate at which Rent was payable (ignoring any abatement)
immediately prior to that Review Date; and
7.5.2 if the Rent when ascertained exceeds the Interim Rent then
within fourteen days of the Rent being ascertained (the
PAYMENT DATE) pay to the Landlord an amount equal to the
aggregate of the sums by which each quarterly instalment of
Rent would have exceeded each instalment of Interim Rent had
the Rent been ascertained by the Relevant Review Date,
together with Interest on each of those sums from the date it
would have been due to the Payment Date at a rate 3% below the
Interest Rate.
7.6 MEMORANDA
Where Rent is increased with effect from a Review Date the Landlord and
Tenant shall (at their own cost) sign memoranda thereof in such form as
the Landlord may reasonably require for annexation to both the original
and counterpart of the Lease.
8 MISCELLANEOUS PROVISIONS
8.1 RECOVERY OF MONEY
In addition to any other remedy available to the Landlord, all moneys
due from the Tenant to the Landlord under the Lease may be recovered as
if such moneys were reserved as rent.
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8.2 USER
The Landlord does not warrant that the Premises may lawfully be used
for any purpose authorised under the Lease.
8.3 EASEMENTS
8.3.1 The Tenant is not entitled to, and the Premises do not enjoy,
any right of light or air which might restrict or interfere
with the free use of any other property for building or any
other purpose.
8.3.2 The operation of Section 62 of the Law of Property Act 1925 is
excluded from the Lease and the only rights granted with the
Premises are those expressly granted in the Lease.
8.3.3 To the extent that the rule against perpetuities applies to
any right granted or reserved hereunder or other matter, such
right may be exercised at any time and such matters shall take
effect within the Perpetuity Period, but not beyond it.
8.4 EXERCISE OF RIGHTS OF ENTRY
A person exercising any right of entry granted or reserved under the
Lease in order to carry out works must:
8.4.1 give reasonable prior notice to the relevant Party (except in
emergency);
8.4.2 exercise the right in a manner which causes as little damage
and inconvenience as is practicable in the circumstances; and
8.4.3 make good any physical damage caused as soon as is reasonably
practicable.
8.5 LIABILITY
8.5.1 The Landlord is not responsible to the Tenant or to anyone at
the Premises with the Tenant's express or implied authority
for any accident, injury, damage or loss.
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8.5.2 The Landlord is not responsible for any accident, injury,
damage or loss resulting or alleged to result from the
negligence, act or omission of any tenant or employee, officer
or agent of the Landlord.
8.6 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 that the law allows.
8.7 NOTICES
8.7.1 Any notice by one party (the SENDER) to another (the
RECIPIENT) must be in writing.
8.7.2 A notice is duly served if given by any means from time to
time authorised by law including:
(a) if delivered to the recipient;
(b) if sent by first class registered or recorded
delivery post addressed to the recipient;
(c) if sent by fax to the recipient
in each case at an authorised address.
8.7.3 Any notice so served shall be deemed to have been received as
follows:-
(a) if delivered - on the day of delivery if delivered at
least two hours before the close of business hours on
a business day and in any other case on the next
business day;
(b) if sent by post (otherwise than at a time when the
sender is or ought reasonably to be aware of a
disruption of the relevant postal service) - two
business days after posting, exclusive of the day of
posting;
(c) if sent by fax (unless the sender knows or ought
reasonably to know that the transmission has failed
or is incomplete) - at the time of transmission, if
received at least two hours before the close of
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business hours on a business day, and in any other
case on the next business day.
8.7.4 For the purposes of this clause:
(a) an AUTHORISED ADDRESS means any of the following:
(i) in the case of a company incorporated in
England, Scotland or Wales its registered
office;
(ii) in the case of an individual his address as
stated in this deed or other address last
known to the sender;
(iii) in the case of a partnership its principal
place of business as stated in this deed or
other principal place of business last known
to the sender;
(b) a BUSINESS DAY means any day expect Saturday Sunday
or a bank or public holiday;
(c) BUSINESS HOURS means the hours of 9.30 a.m. to 5.30
p.m. on a business day.
9 FORFEITURE
9.1 RIGHT OF RE-ENTRY
The Landlord may forfeit the Lease by proceedings or by re-entering the
Premises (or part of them) if:
9.1.1 any Rent or Additional Rent remains unpaid 21 days after it is
due (whether formally demanded or not); or
9.1.2 any covenant or stipulation in the Lease which is to be
performed or observed by the Tenant is not performed or
observed; or
9.1.3 the Tenant permits any execution or distress to be levied on
any goods in the Premises; or
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9.1.4 the Tenant (or any one party included within the definition of
the Tenant) or any guarantor for the Tenant becomes Insolvent
(as defined in the next Clause).
9.2 INSOLVENCY
"INSOLVENT" means for the purposes of Clause 9 of the Lease:
9.2.1 for a company:
(a) the appointment of a receiver, administrative
receiver, liquidator or administrator;
(b) any proceedings in court (including the presentation
of a petition) for the appointment of a administrator
or liquidator;
(c) the making of a voluntary arrangement;
(d) any other analogous event from time to time in
England and Wales or any other applicable
jurisdiction;
but excluding a voluntary liquidation for the purpose of
amalgamation;
9.2.2 for an individual:
(a) the appointment of a receiver or trustee in
bankruptcy;
(b) any proceedings in court (including the presentation
of a petition) for a bankruptcy order;
(c) the making of an individual voluntary arrangement or
deed of arrangement;
(d) any other analogous event from time to time in
England and Wales or any other applicable
jurisdiction;
9.2.3 for a partnership:
(a) the appointment of a receiver, liquidator or
administrator
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(b) any proceedings in court (including the presentation
of a petition) for the appointment of an
administrator or liquidator
(c) the making of a voluntary arrangement;
(d) any other analogous event from time to time in
England and Wales or any other applicable
jurisdiction.
10 GUARANTEE
GUARANTOR'S OBLIGATIONS
10.1 The Guarantor covenants with the Landlord for a period of five years
from the date of this Lease or (if earlier) until such time as the
Tenant is able to demonstrate to the Landlord a net annual profit on
the part of the Tenant before tax for each of the three immediately
preceding years in excess of three times the Rent and equity
shareholders' funds for each of the three preceding years in excess of
ten times the Rent as a primary obligation that during the Term (or
until earlier release by operation of law or otherwise) the Tenant
shall punctually pay the Rent and observe and perform the covenants and
other provisions of the Lease, and in case of default the Guarantor
will pay the Rent and observe and perform the covenants and provisions
in respect of which the Tenant is in default and make good to the
Landlord on demand, and indemnify the Landlord against, all losses,
damages, costs and expenses thereby arising or incurred by the
Landlord.
10.2 The liability of the Guarantor shall not be affected in any way by:
10.2.1 any neglect or forbearance of the Landlord in enforcing
payment of Rent or observance or performance of the covenants
and provisions of the Lease;
10.2.2 any time or indulgence given to the Tenant by the Landlord;
10.2.3 any refusal by the Landlord to accept Rent from the Tenant
following a breach of covenant by the Tenant;
10.2.4 any agreement with the Tenant, any licence or consent granted
to the Tenant, or any variation in the terms of the Lease;
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10.2.5 the death of the Tenant (if an individual) or the dissolution
of the Tenant (if a company), or the Tenant otherwise ceasing
to exist;
10.2.6 a surrender of part of the Premises, except that the Guarantor
will have no liability in relation to the surrendered part in
respect of any period following the date of surrender;
10.2.7 the release of any person, apart from the express release in
writing of the Guarantor;
10.3 If the Tenant is a company and is dissolved, or if the liquidator or
the trustee in bankruptcy of the Tenant or the Crown disclaims the
Lease, the Guarantor shall upon written notice from the Landlord given
within twelve months after the date of dissolution or disclaimer accept
a new lease of the Premises:
10.3.1 for a term commencing on the date of dissolution or disclaimer
and continuing for the residue then remaining unexpired of the
Term at the Rent then payable under the Lease;
10.3.2 subject to and with the benefit of the Lease if still
subsisting;
10.3.3 subject to the same covenants and provisions as in the Lease
(without however requiring any other person to act as
guarantor);
such new lease to take effect from the date of dissolution or
disclaimer and to be granted at the cost of the Guarantor who shall
execute and deliver to the Landlord a counterpart of it.
TENANT'S BREAK CLAUSE
10.4 In this clause "DETERMINATION DATE" means 1 September 2013.
10.5 If the Tenant wishes to determine the Lease on the Determination Date
it must:
10.5.1 serve notice on the Landlord not earlier than twelve months
and not later than six months before the Determination Date of
its intention to determine the Lease;
10.5.2 pay the Rent and other money due under the Lease up to the
Determination Date; and
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10.5.3 yield up the Premises on the Determination Date with vacant
possession and otherwise in accordance with Clause 3.18.
10.6 Subject to compliance with the previous sub-clause the Lease shall
determine on the Determination Date but without prejudice to the rights
of any Party against another in respect of any antecedent breach of
covenant or the Tenant's obligations under the following sub-clause.
10.7 If the Lease is determined under this clause the Tenant shall on the
relevant Determination Date hand over to the Landlord the original
Lease and all other title deeds and documents relating to the Lease and
shall execute any document that the Landlord may reasonably require in
order to cancel any entry or title relating to the Lease at HM Land
Registry.
11 CERTIFICATION
11.1 It is hereby certified that the Lease is made pursuant to an agreement
for lease dated 4 June 2003.
11.2 This is a new tenancy for the purposes of the Landlord and Tenant
(Covenants) Xxx 0000.
12 CONTRACTS (RIGHTS OF THIRD PARTIES) XXX 0000
Unless the Contracts (Rights of Third Parties) Act 1999 is expressly
stated to apply, no person other than the Landlord or the Tenant or the
Guarantor may enforce any term of the Lease under that Act.
13 JURISDICTION
13.1 The Lease shall be governed by and construed in accordance with English
law.
13.2 Each Party submits to the exclusive jurisdiction of the English courts
in respect of all matters arising out of the Lease but the Landlord
shall have the right to bring proceedings in the courts of any other
jurisdiction for the purpose of enforcing a judgment.
14 DELIVERY
This deed remains undelivered until the date hereof.
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SCHEDULE 1
RIGHTS
The Tenant and those deriving title through or otherwise authorised by the
Tenant shall have the following rights in common with others during the Term
(subject always to compliance with the Regulations):
1. at all times the right of access to and egress from the Premises with
or without vehicles over the roads and on foot over the footpaths on
the Estate and the right otherwise to use the Common Parts for the
purposes for which they are intended;
2. a right to connect into and use (subject to the regulations of any
appropriate Authority) Conduits for the supply of services and drainage
and such other Conduits as may from time to time be available for
connection to individual Units;
3. a right to connect into and use such Plant as may from time to time be
available for connection to individual Units;
4. a right to place signs in accordance with Clause 3.6 of this Lease;
5. full rights of support and protection for the Premises;
6. all rights permitted to the Tenant under Clause three of the Lease.
Provided that the Landlord may temporarily stop up or block the roads and
footpaths on the Estate or the Common Parts in connection with the provision of
services.
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SCHEDULE 2
EXCEPTIONS AND RESERVATIONS
The following rights are excepted and reserved to the Landlord and to all others
authorised from time to time by the Landlord:
1. all rights of support and protection afforded by the Premises;
2. right to free and uninterrupted passage and running of water, drainage,
gas, electricity, communication and other services by any Conduit in or
passing through the Premises and the right to enter the Premises in
order to inspect, clean, maintain, repair, renew, remove, divert, or
make connections with any Conduit or to install any new Conduit;
3. all rights which the Tenant covenants to permit under Clause three of
the Lease.
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SCHEDULE 3
INCUMBRANCES
The rights, exceptions, reservations and covenants contained or referred to in
the Landlord's freehold title number EX243648.
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SCHEDULE 4
VAT
1 OUTPUT TAX
Where the Lease requires the Tenant to pay repay reimburse or provide
any amount or other consideration in respect of a VAT supply to the
Tenant by the Landlord such amount or other consideration will be
deemed to be exclusive of any VAT chargeable on that VAT supply
(whether by virtue of a VAT election made or to be made or otherwise)
and the Tenant covenants to pay to the Landlord a sum equal to that
VAT.
2 INPUT TAX
Where the Lease requires the Tenant to pay repay reimburse or provide
any amount or other consideration in respect of a VAT supply to the
Landlord the Tenant covenants to pay to the Landlord upon production of
a valid VAT invoice a sum equal to the whole or a fair proportion of
the VAT charge to the Landlord on that VAT supply as appropriate (any
such proportion in the absence of manifest error to be conclusively
determined by the Landlord's surveyor acting properly) less a like
proportion of any part of that VAT for which the Landlord is entitled
to credit under Section 24, 25 and 26 of the Value Added Tax 1994 (or
any statutory re-enactment or modification thereof) or which the
Landlord is otherwise able to recover.
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SCHEDULE 5
REGULATIONS
1 Parking is only permitted within designated areas and not on the estate
roads or pedestrian areas. The Landlord may employ a wheel clamping or
security company to enforce this regulation and a fee may be charged
for the removal of the wheel clamp or for the release of the vehicle.
2 Heavy goods vehicles in excess of 20 metric tonnes must not enter the
public car parking areas.
3 All drivers must observe the traffic regulations and speed restrictions
on the estate roads as notified from time to time by the Landlord.
4 Loading, unloading, delivery and despatch of goods is to be carried out
only in the areas designated and by means of the entrances designated
for such purposes.
5 No obstruction must be caused on the Common Parts. Any obstruction may
be removed by the Landlord and disposed of without notice.
6 No goods are to be stored or machinery installed on the external areas
of the Premises.
7 Refuse must be stored in skips or containers which have lids and must
be locked when not in use. The area around the skip must be kept clean
and tidy and waste must be removed on a regular basis and refuse skips
or containers must not be overfilled.
8 Where the Tenant is permitted waste ships and pallets, these must be
placed at least six metres away from any building so as to reduce the
risk of fire damage.
9 Fire doors and exit escape routes must be kept clear of all
obstructions.
10 Tenants' signage is to be erected only on areas designated for that
purpose and with the Landlord's consent as provided in this lease. Any
unauthorised signs in the Common Parts will be removed and disposed of
without further notice.
11 No sound amplification equipment may be used in a manner that is
audible outside the Premises.
12 No refuse or materials may be burnt on any part of the Estate.
13 The repair and maintenance of motor vehicles (other than by an
emergency service) is not permitted on any part of the Estate.
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14 Tenants must inform the Landlord in advance if any contractor engaged
by them requires temporary consent to place goods or equipment in the
Common Parts in connection with repair or maintenance of the Premises
only.
15 All users will respect the landscaping and keep to the designated paths
and roads.
The Landlord reserves the right to remove all unauthorised signage, goods and
rubbish stored in breach of these regulations and to charge the Tenant the cost
of removal and/or storage.
These regulations are not intended to be definitive or exhaustive and may be
altered or added to from time to time as the Landlord may reasonably direct.
First edition: July 2002.
EXECUTED as a DEED by )
JUNIPER DEVELOPMENTS )
LIMITED acting by: )
/s/Xxxxxx X.X. Xxxxxx
Director
/s/Xxxxxxxxx X. Xxxx
Assistant Secretary
THE COMMON SEAL of )
XXXXXXXX UK LIMITED )
was hereunto affixed in the presence of: )
/s/Xxxxxxx Xxxxx
Director
/s/Jordan Company Secretaries Limited
Secretary
EXECUTED as a DEED by )
XXXXXXXX UK LIMITED )
acting by: )
/s/Xxxxxxx Xxxxx
Director
/s/Xxxxxx Xxxxx
Director
48
