AGREED FORM
DATED , 1999
[RELEVANT GLYNWED COMPANY] LIMITED
-and-
GLYNWED PROPERTIES LIMITED
-and-
NIAGARA LASALLE (UK) LIMITED
-and-
NIAGARA CORPORATION
----------------------------
LEASE RENEWAL DEED
relating to land and buildings
known as
[ ]
and lease dated [ ]
of that property
----------------------------
XXXXX & XXXXX
CONTENTS
CLAUSE PAGE
1. DEFINITIONS...................................................1
2. INTERPRETATION................................................2
3. OPTION TO RENEW...............................................3
4. [CONSENTS - for mixed freehold and long leasehold
properties only]..............................................5
5. GUARANTEE.....................................................6
6. TERMINATION...................................................6
7. NO SURRENDER..................................................6
8. GENERAL.......................................................7
9. NOTICES.......................................................7
10. GOVERNING LAW AND JURISDICTION................................9
11. REGISTRATION..................................................9
THIS DEED is made on [ ], 1999
BETWEEN:
(1) [RELEVANT GLYNWED COMPANY] LIMITED (registered number [ ]) whose
registered office is at [Headland House, New Coventry Road, Xxxxxxx,
Birmingham] (the "GRANTOR"); and
(2) GLYNWED PROPERTIES LIMITED (registered number 254047) whose
registered office is at Headland House, New Coventry Road, Xxxxxxx,
Birmingham ("GLYNWED");
(3) NIAGARA LASALLE (UK) LIMITED (registered number 3725308) whose
registered office is at Xxxxxxxx Xxxxx, 000 Xxxxx Xxxxxx, Xxxxxx,
XX0X 0XX (the "GRANTEE"); and
(4) NIAGARA CORPORATION a corporation organised and existing under the
Laws of the State of Delaware, whose principal office is at 000
Xxxxxxx Xxxxxx, Xxx Xxxx 00000, XXX (the "GUARANTOR".)
RECITALS
(A) This Deed is supplemental to the Lease by which the Property was
demised for the Term.
(B) The Grantor is the landlord under the Lease, the Grantee is the
tenant under the Lease and the Guarantor is the guarantor under the
Lease.
(C) Glynwed is the beneficial owner of the Property and has confirmed its
consent to this Deed.
(D) The parties have agreed that the Grantee shall be granted an option
to renew the Lease, in accordance with the terms of this Deed.
THIS DEED WITNESSES as follows:
1. DEFINITIONS
In this Deed:
[MIXED FREEHOLD AND LONG LEASEHOLD ONLY - "CONSENT"
means the consent of the Landlord and any superior landlord to the grant
of the New Lease;]
"GRANTOR" means the person for the time being entitled to the reversion
immediately expectant on the determination of the Term;
[MIXED FREEHOLD AND LONG LEASEHOLD ONLY - "LANDLORD" means the person
entitled to the reversion immediately expectant on the determination
of the term granted by the relevant superior lease;]
"LEASE" means the lease of even date herewith and made between
[RELEVANT GLYNWED COMPANY LIMITED] (1) and Niagara Lasalle (UK)
Limited (2) and Niagara Corporation (3) in respect of the Property
and includes all deeds and documents supplemental to it;
"NEW LEASE" means the lease to be granted on the terms set out in clause
3 below;
"PROPERTY" means [ ] as more particularly described in the Lease;
"GRANTEE" means the person in whom the Term of the Lease shall for the
time being be vested;
"SIDE DEED" means the Deed set out in Part II of the Schedule;
"TERM" means the term of years granted by the Lease.
2. INTERPRETATION
(1) Where there are two or more persons included in the expressions
"Grantor" or "Grantee" each reference to Grantor or Grantee includes
a separate reference to each of those persons.
(2) Any reference, express or implied, to an enactment includes references
to:
(a) that enactment as amended, extended or applied by or under any
other enactment (before or after the execution of this Deed);
(b) any enactment which that enactment re-enacts (with or without
modification);
(c) any subordinate legislation made (before or after the execution
of this Deed) under that enactment, as amended, extended or
applied as described in paragraph (a) above or under any
enactment referred to in paragraph (b) above; and
(d) any consents, licences and permissions given (before or after
the execution of this Deed) under that enactment, as amended,
extended or applied as described in paragraph (a) above or
under any enactment referred to in paragraph (b) above or under
that subordinate legislation and any conditions contained in
those consents, licences and permissions.
(3) Any reference, express or implied, to enactments generally includes
subordinate legislation and any legislation of the European Union
that is directly applicable in the United Kingdom and includes
existing enactments and those that come into effect during the Term.
(4) Sub-clauses (1) to (3) above apply unless the contrary intention appears.
(5) The headings in this Deed do not affect its interpretation.
3. OPTION TO RENEW
(1) On the determination of the Lease at the end of the Term only and
subject to sub-clause (2), the Grantee shall have the right to the
grant of the New Lease of the Property for a term of 15 years
commencing on and including the day after the date of expiry of the
Term of the Lease at open market rent, determined by applying the
rent review provisions set out in the Schedule to this Deed such
lease to be excluded from Sections 24 to 28 of the Landlord and
Xxxxxx Xxx 0000 and otherwise to be on the same terms as the Lease
excluding the rent payable and including the variations set out in
part 1 of the Schedule to this Deed and any other reasonable
provisions notified in writing by the Grantor to the Grantee for the
Grantee's approval, such approval not to be unreasonably withheld or
delayed.
(2) The Grantee's right to the grant of the New Lease of the Property is
subject to:
(a) The Grantee giving to the Grantor prior to the expiry of the
Lease not less than six months' notice of its intention to
exercise this right.
(b) the Grantee remedying any breach of any tenant's obligation in
the Lease relating to the state and condition of the Property
and paying all arrears of Rent (as defined in the Lease) prior
to the expiry of the Grantee's notice provided that one month
prior to the expiry of the Grantee's notice the Grantor has
notified the Grantee of any such breaches which remain
outstanding and which must be remedied prior to the expiry of
the Grantee's notice.
(c) If on the date of the grant of the new lease the Grantor is
[RELEVANT GLYNWED COMPANY] and the Grantee is Niagara
LaSalle (UK) Limited, the Guarantor must be a party to the New
Lease as guarantor.
[(d) FOR MIXED FREEHOLD AND LONG LEASEHOLD ONLY the
Consent to the grant of the New Lease being obtained pursuant
to the provisions set out in clause 4 below provided that if
the Consent has not been obtained by the end of the term under
the Lease (howsoever determined) the Grantee shall on that date
have the right, at its option, to complete the New Lease of the
Property but if it does not complete the New Lease on that date
the Grantee will lose its right to the grant of the New Lease
under this agreement and the Grantor shall not be obliged to
continue its application for the Consent.]
(3) Whilst during the term of the New Lease the Grantor is [RELEVANT
GLYNWED COMPANY] and the Grantee is Niagara LaSalle (UK) Limited the
insurance provisions to be contained in the New Lease shall be those
contained in the Side Deed and the Grantor, the Grantee and the
Guarantor shall complete the Side Deed simultaneously with the
completion of the New Lease.
(4) If on the date of expiry of the Grantee's notice to renew, the rent
payable under the New Lease and/or any other provisions notified to
the Grantee by the Grantor in accordance with subclause (1) above
have not been agreed between the parties (but without prejudice to
subclauses (2) above) the New Lease shall in any event be completed
and the following provisions (where applicable) shall apply:
(a) If the new rent has not been determined the rent payable under
the New Lease shall be the annual rent payable under the Lease
immediately prior to the end of the Term. Forthwith on the new
rent being ascertained the Tenant shall pay to the Landlord any
shortfall between the new rent and the rent which has been paid
under the New Lease together with interest at the Interest Rate
(as defined in the New Lease) on the shortfall from the date on
which the new rent would have been payable if ascertained
before the date of the New Lease, and the Grantor, the Grantee,
if appropriate, and the Guarantor shall enter into a deed of
variation of the New Lease to incorporate the new rent figure
in respect of which each party shall bear their own costs;
(b) forthwith, upon agreement of any outstanding lease provision
other than the new rent the parties shall enter into a deed of
variation of the New Lease to incorporate the agreed provision
and each party shall bear their own costs in respect of such
deed.
(5) Time shall be of the essence of the contract in respect of the
periods of time mentioned in sub-clause (2) and if the Grantee's
option to renew is not exercised or not exercised in accordance with
those time periods the Grantee shall forthwith vacate the Property at
the end of the Term.
4. [CONSENTS - FOR MIXED FREEHOLD AND LONG LEASEHOLD
PROPERTIES ONLY]
(1) This paragraph applies to any mixed freehold and leasehold Property
in relation to which leasehold Property the Consent must be obtained
in order that the Grantor may effectually and lawfully grant the New
Lease to the Grantee.
(2) The Grantor and the Grantee shall each use reasonable endeavours to
obtain Consent as soon as possible, but the Grantor may not be
required to make any payment, charge any assets, enter into any
commitment, give any guarantee or provide any security. If Consent is
not granted within 3 months of the application for consent being made
the Grantor will at the reasonable request but at the joint equal
cost of the Grantee and the Grantor commence proceedings for a
declaration that the Consent is being unreasonably withheld provided
that the Grantee shall provide reasonable security for its share of
the costs prior to commencement of proceedings if reasonably required
by the Grantor.
(3) The Grantee shall:
(a) supply promptly to the Grantor such information, including
accounts for the last three years and references for the
Grantee and any proposed guarantor as may be reasonably
required by the Landlord or any superior landlord in connection
with the application for the Consent;
(b) comply with all reasonable requirements which, pursuant to any
superior lease the Landlord or any superior landlord is
entitled to impose on a prospective undertenant of the Property
as a condition of granting Consent;
(c) if reasonably required by the Landlord or by any superior
landlord as a condition of granting Consent, covenant directly
with those persons to observe and perform the tenant's
covenants and the conditions to be contained in the New Lease
and the tenant's covenants (other than the covenant to pay
rent) and the conditions contained in any superior lease;
(d) if reasonably required by the Grantor or the Landlord as a
condition of granting the Consent, provide a guarantee from the
Guarantor in such form as the Landlord shall reasonably require
and/or a deposit of cash as security for the performance of
covenants as the Landlord shall reasonably require; and
(e) comply with all other reasonable requirements of the Landlord
and any superior landlord in relation to obtaining Consent.
(4) The reasonable costs and expenses of the Landlord, any superior
landlord and the mortgagees of any of them (including VAT) in
connection with the application for Consent (including the cost of
any court proceedings shall be borne jointly by the Grantor and the
Grantee in equal shares, whether or not the Consent is granted.
5. GUARANTEE
In consideration of the Grantor entering into this Deed at the
Guarantor's request, the Guarantor guarantees to the Grantor the
obligations and liabilities of the Grantee under this Deed such
guarantee to be on the same terms as the guarantee provisions set out
in clause 8 of the Property Agreement which is hereby incorporated
into this Deed subject to any necessary amendments to ensure that the
guarantee applies to this Deed.
6. TERMINATION
This Deed shall terminate on the termination of the Lease (through
effluxion of time, forfeiture or otherwise) unless the Tenant is
granted relief from forfeiture.
7. NO SURRENDER
This Deed is not intended to and does not effect any surrender of the
Lease or the grant of any new lease.
8. GENERAL
(1) DISPUTES
Any dispute regarding a provision of this Deed shall be determined by
a single arbitrator being either a surveyor with not less than 10
years experience in such matters or counsel of not less thin 10 years
call and experienced in such matters in either case acting as an
expert such arbitrator to be agreed by the Grantor and the Grantee
or, failing agreement, by a single arbitrator appointed by the
president or his deputy for the time being of the Royal Institution
of Chartered Surveyors in accordance with the Arbitration Xxx 0000 or
if appropriate bearing in mind the nature of the dispute the President
for the time being of the Law Society.
(2) JOINT AND SEVERAL LIABILITY
Where the Grantee, the Grantor or the Guarantor is more than one
person:
(a) those persons shall be jointly and severally responsible in
respect of every obligation undertaken by them under this Deed;
and
(b) The Grantor may release or compromise the liability of any of
those persons under this Deed or grant any time or other
indulgence without affecting the liability of any other of
them.
(3) NOTICES IN WRITING
Every notice, consent, approval or direction given under this Deed
shall be in writing.
(3) COUNTERPARTS
This Deed may be executed in any number of counterparts, all of
which, taken together, shall constitute one and the same Deed and any
party may enter into this Deed by executing a counterpart.
9. NOTICES
Where the Grantee is Niagara LaSalle (UK) Limited the notice
provisions set out in subparagraph A below shall apply to any notice
served under this Agreement, such notice provisions being personal to
Niagara LaSalle (UK) Limited. At any other time the notice provisions
set out in sub-paragraph B below shall apply.
A. (1) Any notice or other document to be served under this agreement may
be delivered or sent by post to the party to be served as follows:
(a) to the Grantor at the address set out in this Deed marked for
the attention of the Company Secretary;
(b) to the Grantee at
Victoria Steelworks
Bull Xxxx
Xxxxxx
Wednesbury
West Midlands WS 10 8RS
marked for the attention of Xxxx Xxxxxxx
with a copy to Niagara Corporation at 000 Xxxxxxx Xxxxxx,
Xxx Xxxx, 00000, XXX;
(c) to the Guarantor at:
000 Xxxxxxx Xxxxxx
Xxx Xxxx 00000
XXX
or at such other address as it may have notified to the other
party in accordance with this clause. Any notice or other
document sent by post shall be sent by prepaid first class
recorded delivery post (if within the United Kingdom) or by
prepaid registered airmail (if elsewhere).
(2) Any notice or other communication shall be deemed to have been
duly given:
(a) if delivered personally, when left at the address referred to
in subclause (1); or
(b) if sent by recorded mail other than airmail, two days after
posting it; or
(c) if sent by registered airmail, six days after posting it,
provided always that a notice given in accordance with
the above but received on a day which is not a Business
Day or after business hours on a Business Day in the
place of receipt will only be deemed to be given on the
next Business Day in that place.
B. Any notice or other document served under this Deed may be served in
any way in which a notice required or authorised to be served under
section 196 of the Law of Property Xxx 0000 may be served.
10. GOVERNING LAW AND JURISDICTION
(1) This Deed is governed by and shall be construed in accordance with
English Law.
(2) The Guarantor submits to the jurisdiction of the English Courts for
all purposes relating to this Deed and appoints the Tenant's
solicitors, Paisner & Co of Xxxxxxxx Xxxxx, 000 Xxxxx Xxxxxx, Xxxxxx
XX0X 0XX (or such other solicitors as shall subsequently be notified
in writing to the Grantor) as agent for service of process with
respect thereto.
11. REGISTRATION
(1) Immediately following the date of this Deed the Grantor shall place
its land certificates relating to the Property on deposit at HM Land
Registry to permit the Grantee to note the provisions of this Deed on
the registers of title for the Property.
[AND FOR BLACKBROOK ROAD, DUDLEY ONLY:
(2) In relation to the part of the Property registered under title number
WM 159185 for which the Grantor will apply for a replacement land
certificate, the provisions of sub-clause (1) above shall only apply
once the Seller or the Seller's solicitor notifies the Buyer or the
Buyer's solicitor of the replacement title number.]
IN WITNESS of which this Deed has been executed as a deed in writing arid
has been delivered on the date which first appears on page 1.
THE COMMON SEAL OF )
[RELEVANT GLYNWED )
COMPANY] LIMITED )
was affixed in the )
presence of: )
Director:
Secretary:
THE COMMON SEAL OF )
GLYNWED PROPERTIES )
LIMITED was affixed in the )
presence of: )
Director:
Secretary:
THE CONMMON SEAL OF )
NIAGARA LASALLE )
(UK) LIMITED was affixed in )
the presence of: )
Director:
Secretary:
[EXECUTION CLAUSE FOR
NIAGARA CORPORATION]
SCHEDULE
PART I
The provisions of the Lease shall be varied as follows:
1. In clause 1 (Definitions) the following definitions shall be inserted
after the definition of "Rent":
""REVIEW DATE" means [insert day and month of Lease] in the years 2014
and 2019;
"REVIEW PERIOD" means the period starting with any Review Date up to
the next Review Date or starting with the last Review Date for a
period of five years after the last Review Date;"
2. Clauses 4(1) and (2) (Rent) shall not apply and shall be replaced by the
following:
"(1) RENT
The yearly rent shall be:
(a) until the first Review Date the rent of [open market rent
ascertained in accordance with the provisions contained
in this Lease to be inserted]; and
(b) during each successive Review Period a rent equal to the
rent previously payable under this Lease (or the rent
which would be payable but for any abatement or
suspension of rent under this Lease) or the revised rent
ascertained in accordance with this clause, whichever is
the greater.
(2) RENT PAYMENT DATES
The yearly rent is payable without any deduction, withholding
or set- off by equal quarterly payments in advance on the
Quarter Days. The first payment (which is an apportioned sum)
is to be made on the date of this Lease in respect of the
period commencin], 2009 and ending on the day before the next
following Quarter Day.
(3) RENT REVIEW - METHOD
The revised rent for any Review Period may be agreed in writing
at any time between the Landlord and the Tenant or (in the
absence of agreement) determined not earlier than the relevant
Review Date by an independent valuer (acting as an expert and
not as an arbitrator) of recognised standing and having
experience in letting and valuing property of a like kind and
character to the Property.
(4) NOMINATION
The independent valuer may be nominated in the absence of
agreement by or on behalf of the president for the time being
of the Royal Institution of Chartered Surveyors on the
application of either the Landlord or the Tenant made not
earlier than three months before the relevant Review Date.
(5) RENT REVIEW - AMOUNT
(a) The revised rent to be determined by the valuer shall be
such as he shall decide is the yearly rent at which the
Property might reasonably be expected to be let at the
relevant Review Date:
(i) after the expiry of a rent free period or any
necessary rent period given for fitting-out
purposes only of such length and the giving of
other inducements (including, without limitation,
any, capital payment or contribution to fitting out
costs) given for fitting out purposes only as would
be negotiated in the open market between a willing
landlord and a willing tenant so that the yearly
rent is that payable after the expiry of any such
rent free period or concessionary rent period and
after the giving of any such inducement for the
fitting out purposes as referred to above; and
(ii) on the assumptions set out in sub-clause (6) but
disregarding the matters set out in sub-clause (7).
(b) On any rent review the Tenant shall not deduce as
comparable evidence the terms of any underlease of the
Property which it has granted, including rent.
(6) ASSUMPTIONS
The assumptions are that at the relevant Review Date:
(a) the Property:
(i) is available to let on the open market by a willing
landlord to a willing tenant by one lease without a
premium from either party and with vacant
possession for a term of 10 years commencing on the
relevant Review Date with the rent payable from
then;
(ii) is to be let as a whole on a lease which is to
contain the same terms as this Lease (other than
the amount of the rent referred to in sub-clause
(l)(a) but including the provisions for review of
that rent at the same intervals as those in this
Lease) the first Review Date in that lease being
the fifth anniversary of the relevant Review Date;
(iii) is fit and available for immediate occupation and
is fitted out at the incoming tenant's cost for the
incoming tenant's immediate use as authorised by
this Lease; and
(iv) may be used for any of the purposes permitted by this
Lease.
(b) all the covenants in this Lease by the Landlord and the
Tenant have been performed and observed;
(c) no work has been carried out to the Property which has
diminished the rental value and in case the Property has
been destroyed or damaged it has been fully restored.
(7) DISREGARDS
The matters to be disregarded are:
(a) any effect on rent of the fact that the Tenant, its
subtenants or their respective predecessors in title have
been in occupation of the Property;
(b) any goodwill attached to the Property by reason of the
carrying on at it of the business of the Tenant, its
subtenants or their predecessors in title in their
respective businesses; and
(c) any increase in rental value of the Property attributable
to the existence at the relevant Review Date of any
voluntary improvement to the Property carried out by the
Tenant, its subtenants or their respective predecessors
in title during the Term or during any earlier period of
occupation arising out of an agreement to grant the Term.
In this sub-clause a "VOLUNTARY IMPROVEMENT" is one carried out
with consent of the Landlord (where required) but not under an
obligation to the Landlord or its predecessors in title.
(8) VALUER
(a) The fees and expenses of the valuer including the cost of his
appointment shall be borne as he shall decide or in the absence
of any decision equally by the Landlord and the Tenant who
shall otherwise each bear their own costs.
(b) The valuer shall afford the Landlord and the Tenant an
opportunity to make representations to him.
(c) If the valuer dies, delays or becomes unwilling or incapable of
acting or if for any other reason the president for the time
being of the Royal Institution of Chartered Surveyors or the
person acting on his behalf thinks fit he may discharge the
valuer and appoint another in his place.
(9) MEMORANDUM
When the revised rent has been ascertained memoranda of it
shall be signed by or on behalf of the Landlord and the Tenant
and annexed to this Lease and the counterpart of it and the
Landlord and the Tenant shall bear their own costs in respect
of the memoranda.
(10) INTEREST
If the revised rent payable with effect from any Review Date
has not been agreed by that Review Date, rent shall continue to
be payable at the rate previously payable. Forthwith on the
revised rent being ascertained the Tenant shall pay to the
Landlord any shortfall between the rent and the revised rent
payable up to and on the preceding quarter day together with
interest at the Interest Rate compounded quarterly on each part
of the shortfall from the date or respective dates on which
each part would have been due for payment had the revised rent
been ascertained before the relevant Review Date until the date
of payment.
For the purpose of this clause the revised rent shall be deemed
to have been ascertained on the date when it has been agreed
between the Landlord and the Tenant or the date of the award of
the arbitrator or of the determination by the valuer.
(11) COSTS
If either the Landlord or the Tenant fails to pay any costs
awarded against it in the case of an arbitration or the
relevant part of the fees and expenses of the valuer under
sub-clause (9) within 15 Business Days of the same being
demanded by the arbitrator or the valuer the other shall be
entitled to pay the same and the amount so paid shall be repaid
on demand by the party chargeable and recoverable from that
party as a debt due.
(12) TIME NOT OF THE ESSENCE
Time shall not be of the essence for the purposes of this
clause."
3. Sub-clause 5(3)(e) (Outgoings) shall be amended by the deletion of
the words "during the first six years of the Term" from the first
line of that sub-clause.
4. Sub-clause 5(7)(c) (Entry by the Landlord) shall be amended by the
insertion of the words "and any person acting as valuer under clause
4" after the word "Landlord" in the first line and by the insertion
of the words "or the implementation of clause 4" at the end of the
sub-clause.
5. Clause 7 (Alienation) shall be deleted and replaced with the following
new clause 7:
"7 ALIENATION
(1) RESTRICTIONS ON ALIENATION
The Tenant shall not:
(a) save to the extent permitted by the following sub-clauses
of this clause, part with possession of the whole or any
part of the Property or part with or share occupation of
the whole or any part of the Property or permit
occupation by a licensee of the whole or any part of the
Property or hold on any trust the whole or any part of
the Property;
(b) if it is an unlimited company, incorporate itself as a
limited company without the prior consent of the
Landlord.
(2) ASSIGNMENT
The Tenant shall not:
(a) assign part of the Property;
(b) assign the whole of the Property without the prior
consent of the Landlord which, subject to sub-clauses (3)
and (4), shall not be unreasonably withheld or delayed.
(3) AGREEMENT AS TO CIRCUMSTANCES
The Landlord and the Tenant agree that the Landlord may
withhold its consent to an assignment if any one or more of the
following circumstances (which are specified for the purposes
of section 19(1A) of the Landlord and Tenant Act 1927) exist:
(a) any Rent due (following demand if required under the
terms of this Lease) from the Tenant under this Lease is
unpaid;
(b) the Landlord reasonably determines that the proposed
assignee is not a person who is likely to be able to
comply with the covenants by the Tenant in this Lease
following completion of the assignment;
(c) the proposed assignee or any proposed guarantor for it
(other than any guarantor under an authorised guarantee
agreement) has the benefit of state or diplomatic
immunity or the Landlord determines that it is likely to
acquire that immunity;
(d) the proposed assignee is a company which is a member of
the same group (within the meaning of section 42 of the
Landlord and Tenant Act 1954) as the Tenant;
(e) the Landlord reasonably determines that there is a
subsisting material breach of any of the tenant's
covenants by the Tenant or the conditions in this Lease.
(4) AGREEMENT AS TO CONDITIONS
The Landlord and the Tenant agree that the Landlord may grant
consent to an assignment subject to any one or more of the
following conditions (which are specified for the purposes of
section 19(1A) of the Landlord and Tenant Act 1927):
(a) that before the assignment the Tenant enters into and
unconditionally delivers to the Landlord an authorised
guarantee agreement (as defined in section 16 of the
Landlord and Tenant (Covenants) Act 1995), such agreement
to be a deed and where the Tenant is NIAGARA LASALLE
(U.K.) LIMITED to contain the provisions in Part A of
Schedule 6 and at any other time to contain the
provisions in Part B of Schedule 6 or in either case such
other provisions as the Landlord shall first notify to
the Tenant, to be approved by the Tenant, such approval
not to be unreasonably withheld or delayed;
(b) that before the assignment any person (other than a
former Tenant) who at the time of the application for the
consent is guaranteeing the obligations and liabilities
of the Tenant under this Lease covenants by deed with the
Landlord that the Tenant shall perform its obligations
under the authorised guarantee agreement required under
paragraph (a), the deed to contain where that person is
NIAGARA CORPORATION provisions equivalent to those
contained in paragraphs 1 to 6 and 11 of Part A of
Schedule 5 and at any other time, provisions equivalent
to those contained in paragraphs 1 to 4 and 9 of Part B
of Schedule 5 and an obligation on the part of the
covenantor (in the event of default on the part of the
Tenant) to perform any obligation entered into by the
Tenant in the authorised guarantee agreement to take up a
new lease, and otherwise to be in such form as the
Landlord reasonably requires PROVIDED THAT if such person
declines to enter into this covenant, the Tenant shall
procure that there is paid to the Landlord a rent deposit
equal to two years of the annual rent payable under
clause 4(1)(b) of this Lease;
(c) that before the assignment, if the Landlord reasonably
determines it to be necessary, one or more guarantors
acceptable to the Landlord, acting reasonably, covenant
by deed with the Landlord in the form set out in Part B
of Schedule 5 (with "assignee" substituted for "Tenant"
in paragraphs 1 to 9 inclusive and with such other
provisions as the Landlord reasonably requires) in
respect of the period ending on the date on which the
assignee is released by virtue of the Landlord and Tenant
(Covenants) Xxx 0000;
(d) that before the assignment where reasonably required a
rent deposit is paid to the Landlord, such deposit to be
an amount equal to six months of the annual rent payable
under clause 4(l)(c) of this Lease or such greater amount
as is reasonable in the circumstances;
(e) that all Rent due (following demand if required under the
term of this Lease) from the Tenant under this Lease as
at the date of the assignment has been paid;
(f) that the assignment is completed within three months of
the date of the consent and that if it is not, the
consent shall be void but any of the guarantees referred
to in paragraphs (a) to (c) shall nevertheless remain in
full force and effect.
(5) FURTHER AGREEMENT
The Landlord and the Tenant agree that any power on the part of
the Landlord to determine any matter for the purposes of
sub-clauses (3) or (4) shall be exercised reasonably.
(6) UNDERLETTING
The Tenant shall not:
(a) underlet part of the Property; or
(b) underlet the whole of the Property without:
(i) complying with the provisions of sub-clauses (7) to
(11); and
(ii) the prior consent of the Landlord, which shall not be
unreasonably withheld.
(7) COVENANTS ON UNDERLETTING
The Tenant shall procure that any intended undertenant
covenants by deed with the Landlord:
(a) to pay the rent to be reserved by and the other sums to
be payable under the underlease and to perform and
observe, first, the covenants by the tenant and the
conditions to be contained in the underlease and,
secondly, the covenants by the Tenant and the conditions
contained in this Lease (except first the covenant to pay
rent and secondly any covenant in this Lease which is
inconsistent with the covenants in the underlease as
authorised under sub-clause (9)) throughout the period
during which the undertenant is bound by the covenants by
the tenant and conditions in the underlease;
(b) without prejudice to paragraph (a), not to assign the
underlet property without:
(i) first obtaining a deed of covenant from the
intended assignee in favour of the Landlord in the
same form (with the necessary changes) as the deed
referred to in this sub-clause, including (without
limitation) the covenants in this paragraph (b);
and
(ii) if the Landlord reasonably requires, first
obtaining a deed from one or more guarantors
acceptable to the Landlord, acting reasonably, in
favour of the Landlord guaranteeing the due and
punctual payment and performance of all the
obligations and liabilities of the intended
assignee under the deed referred to in sub-
paragraph (i), the deed to contain provisions
equivalent to those contained in paragraphs 1 to 4
and 9 of Part B of Schedule 5 and otherwise to be
in such form as the Landlord reasonably requires.
(8) GUARANTEE ON UNDERLETTING
If the Landlord reasonably requires, the Tenant shall procure
that, before the underlease is granted, one or more guarantors
acceptable to the Landlord, acting reasonably, guarantee (by
way of deed) to the Landlord, in respect of the period ending
on the date on which the undertenant is released by virtue of
the Landlord and Tenant (Covenants) Xxx 0000, the due and
punctual payment and performance of all the obligations and
liabilities of the intended undertenant, the guarantee to
contain provisions equivalent to those contained in paragraphs
1 to 4 and 9 of Part B of Schedule 5 and otherwise to be in
such form as the Landlord reasonably requires.
(9) FORM OF UNDERLEASE
The Tenant shall procure that every underlease shall:
(a) contain the same covenants by the tenant and other terms
and conditions as are contained in this Lease subject
only to:
(i) such amendments as may be provided for in
paragraphs (b) to (d); and
(ii) such amendments as may reasonably be required by
the Tenant, having regard only to the duration of
the proposed underlease, and as may be approved by
the Landlord, such approval not to be unreasonably
withheld or delayed;
(b) not permit any assignment, underlease or other dealing or
disposal of the Property which is prohibited by the terms
of this Lease and prohibit any further underletting of
the whole or any part of the Property;
(c) provide that where the underlease requires the
undertenant to obtain the landlord's consent, the
undertenant shall be required to obtain also the consent
of the Landlord which shall not be unreasonably withheld
or delayed where such consent cannot be unreasonably
withheld or delayed under the terms of this Lease;
(d) contain provisions to ensure that the tenancy is excluded
from the provisions of sections 24 to 28 of the Landlord
and Xxxxxx Xxx 0000;
(e) contain provisions that require a review of the rent
payable under the underlease to open market rent in
accordance with the provisions and at the dates for
review of the rent payable under this Lease, but this
paragraph shall not prohibit an underlease of the
Property upon terms that require review of the rent
payable under the underlease at dates additional to the
dates for review of the rent payable under this Lease."
(10) UNDERLEASE REQUIREMENTS
The Tenant shall:
(a) not grant any underlease at a fine or premium;
(b) not grant any underlease at a rent which at the time of
the grant of the underlease is less than the open market
rent of the Property;
(c) not accept the surrender of or vary the terms of any
underlease or release the undertenant from any covenant
or condition in the underlease without the prior consent
of the Landlord which, in the case only of a surrender,
shall not be unreasonably withheld;
(d) not waive any breach of any of the covenants on the part
of the undertenant and the conditions contained in any
underlease but take all such steps as are lawfully
available to the Tenant (including re-entry) to enforce
such covenants and conditions;
(e) procure that on any assignment of any underlease the
outgoing undertenant enters into an authorised guarantee
agreement and, where appropriate, guarantors enter into a
contractual guarantee in each case with the landlord
under the underlease in accordance with the provisions of
the underlease;
(f) procure that the rent reserved by any underlease is
reviewed in accordance with the provisions of the
underlease but not agree any revised rent with the
undertenant without the prior consent of the Landlord
(such consent not to be unreasonably withheld or
delayed), and if on any rent review under any underlease
the revised rent is to be determined by an independent
third party, procure that any representations which the
Landlord may wish to make acting reasonably concerning
the revised rent are put forward to the third party at
the same time as the representations of the Tenant and as
though they were representations made by the Tenant.
In paragraphs (c) to (f) of this sub-clause an underlease
includes any lease where, by virtue of the grant of this Lease,
the Tenant under this Lease becomes the holder of the immediate
reversion to that lease.
(11) ASSOCIATED COMPANIES
The Tenant may share the occupation of the whole or any part of
the Property with a company which is a member of the same group
as the Tenant (within the meaning of section 42 of the Landlord
and Tenant Act 1954) for so long as both companies remain
members of that group and provided that:
(a) no relationship of landlord and tenant is created between
the two companies and no security of tenure is conferred
upon the occupier; and
(b) within 15 Business Days of the commencement of the
sharing the Tenant gives to the Landlord notice of the
company sharing occupation and the address of its
registered office.
(12) CHARGING
The Tenant shall not:
(a) charge part of the Property; or
(b) charge the whole of the Property without the prior
consent of the Landlord, which shall not be unreasonably
withheld or delayed.
(13) REGISTRATION OF DEALINGS
Within 28 days of every assignment, transfer, underlease or
charge of the Property or the creation or transfer of any
interest derived out of the Term or any devolution of the
interest of the Tenant or any person deriving title under the
Tenant, the Tenant shall produce a certified copy of the
assignment, transfer, underlease or charge or (in the case of a
devolution) the document evidencing or under which the
devolution arises and pay the Landlord a registration fee of a
reasonable amount, being not less than (pound)25, in respect of
each assignment, transfer, underlease, charge or devolution.
6. A new sub-clause 8(18) shall be added as follows:
(18) While Niagara LaSalle (UK) Limited is the Tenant, the Landlord
shall use reasonable endeavours to obtain from the insurers
confirmation that the insurer waives its rights of subrogation
against the Tenant.
7. Clause 9 (Guarantor's Covenant) shall be deleted and replaced with the
following new clause 9:
9. "GUARANTOR'S COVENANT
The Guarantor covenants with the Landlord where the Guarantor is
NIAGARA CORPORATION on the terms set out in Part A of Schedule 5 and
at any other time on the terms set out in Part B of Schedule 5."
8. Clause 12 (Right to Break) shall be deleted.
9. Schedule 5 shall be deleted and replaced with the following new
Schedule 5:
"SCHEDULE 5
GUARANTEE PROVISIONS
PART A
1. In consideration of the mutual covenants contained in this Lease, the
Guarantor guarantees to the Landlord and shall procure the due and
punctual performance of each obligation of the Tenant under this
Lease and shall pay to the Landlord from time to time on demand, or
procure that the Tenant shall pay, any sum which the Tenant is at any
time liable to pay to the Landlord under this Lease and which has not
been paid at the time the demand is made.
2. The obligations of the Guarantor under paragraph 1:
(a) constitute direct, primary, unconditional and irrevocable
obligations without the need for any recourse on the part of the
Landlord against the Tenant;
(b) shall not be affected or impaired by any concession, time or
indulgence granted by the Landlord or by any other dealing or
thing which would but for this paragraph (2)(b) operate to
discharge or reduce that liability; and
(c) shall not be affected or impaired by anything (including any
legal limitation, disability or incapacity on the part of the
Tenant) which causes any of the obligations of the Tenant under
this Lease to be or become invalid or unenforceable.
3. If any of the obligations of the Tenant under this Lease is or
becomes invalid or unenforceable the Guarantor shall perform and
discharge all such obligations as if they were primary obligations of
the Guarantor or shall procure that the Tenant performs and
discharges all such obligations.
4. The guarantee set out in this clause shall extend to any costs,
charges and expenses incurred by the Landlord in enforcing or seeking
its enforcement.
5. The Guarantor shall make any payments due from it under this clause
in full and, without any deduction or withholding in respect of any
claim whatsoever (whether by way of set-off, counterclaim or
otherwise).
6. If the Landlord brings proceedings against the Tenant, the Guarantor
shall be bound by any findings of fact, interim or final award or
interlocutory or final judgment made by an arbitrator or the court in
those proceedings.
7. If
(a) the Tenant (being a company) enters into liquidation and the
liquidator disclaims this Lease; or
(b) the Tenant (being a company) is dissolved and the Crown disclaims
this Lease; or
(c) the Tenant (being an individual) becomes bankrupt and the trustee
in bankruptcy disclaims this Lease; or
(d) this Lease is forfeited,
then within six months after the disclaimer or forfeiture the
Landlord may require the Guarantor by notice to accept a lease of the
Property for a term equivalent to the residue which would have
remained of the Term if there had been no disclaimer or forfeiture at
the same rents and subject to the same covenants and conditions
(including those as to the review of rent) as and reserved by and
contained in this Lease (with the exception of this Schedule).
8. The new lease and the rights and liabilities under it shall take
effect as from the date of the disclaimer or forfeiture and the
Guarantor shall be liable for all payments due under the new lease as
from the date of disclaimer or forfeiture as if the new lease had
been granted on the date of disclaimer or forfeiture.
9. The Guarantor or his personal representatives shall pay the
Landlord's costs of and accept the new lease and shall execute and
deliver to the Landlord a counterpart of it.
10. If the Landlord does not require the Guarantor to take a Lease of the
Property, the Guarantor shall pay to the Landlord on demand a sum
equal to the rent that would have been payable under this Lease but
for the disclaimer or forfeiture in respect of the period from the
date of the disclaimer or forfeiture until the date which is six
months after the date of the disclaimer or forfeiture or the date on
which the property has been re-let by the Landlord, whichever first
occurs.
11. If any VAT is payable by the Tenant to the Landlord under the terms
of the Lease, the Guarantor's obligation shall extend to that VAT If
the Guarantor makes any payment in respect of VAT, the Landlord's
obligation to issue a VAT invoice to the Tenant under the Lease in
respect of that VAT shall not be affected, and the Landlord shall not
be under any obligation to issue a VAT invoice to the Guarantor in
respect of that VAT."
PART B
1. The Guarantor guarantees to the Landlord the due and punctual payment and
performance by the Tenant of all the obligations and liabilities of the
Tenant under this Lease and shall indemnify the Landlord against all
losses, damages, costs and expenses arising or incurred by the Landlord
as a result of the non-payment or non-performance of those obligations or
liabilities.
2. The obligations of the Guarantor under this Lease:
(a) constitute a direct, primary and unconditional liability to pay
on demand to the Landlord any sum which the Tenant is liable to
pay under this Lease and to perform on demand by the Landlord
any obligation of the Tenant under this Lease without the need
for any recourse on the part of the Landlord against the
Tenant;
(b) will not be affected by:
(i) any time or indulgence granted to the Tenant by the Landlord;
(ii) any legal limitation, disability or other circumstances
relating to the Tenant or any irregularity,
unenforceability or invalidity of any obligations of the
Tenant under this Lease;
(iii) any licence or consent granted to the Tenant or any
variation in the terms of this Lease save as provided in
section 18 of the Landlord and Tenant (Covenants) Xxx
0000;
(iv) the release of one or more of the parties defined as the
Guarantor (if more than one); or
(v) any other act, omission, matter, event or thing whereby
(but for this provision) the Guarantor would be
exonerated in whole or in part from the guarantee other
than a release by deed given by the Landlord.
3. So long as this guarantee remains in force the Guarantor shall not:
(a) in the event of any bankruptcy, liquidation, rehabilitation,
moratorium or other insolvency proceedings relating to the
Tenant, claim or prove as creditor in competition with the
Landlord; or
(b) be entitled to claim or participate in any security held by the
Landlord in respect of the obligations of the Tenant under this
Lease; or
(c) exercise any right of set-off against the Tenant.
4. If the Landlord brings proceedings against the Tenant, the Guarantor
shall be bound by any findings of fact, interim or final award or
interlocutory or final judgment made by an arbitrator or the court in
those proceedings.
5. If:
(a) the Tenant (being a company) enters into liquidation and the
liquidator disclaims this Lease; or
(b) the Tenant (being a company) is dissolved and the Crown disclaims
this Lease; or
(c) the Tenant (being an individual) becomes bankrupt and the trustee
in bankruptcy disclaims this Lease; or
(d) this Lease is forfeited,
then within six months after the disclaimer or forfeiture the
Landlord may require the Guarantor by notice to accept a lease of the
Property for a term equivalent to the residue which would have
remained of the Term if there had been no disclaimer or forfeiture at
the same rents and subject to the same covenants and conditions
(including those as to the review of rent) as are reserved by and
contained in this Lease (with the exception of this Schedule).
6. The new lease and the rights and liabilities under it shall take
effect as from the date of the disclaimer or forfeiture and the
Guarantor shall be liable for all payments due under the new lease as
from the date of disclaimer or forfeiture as if the new lease had
been granted on the date of disclaimer or forfeiture.
7. The Guarantor or his personal representatives shall pay the
Landlord's costs of and accept the new lease and shall execute and
deliver to the Landlord a counterpart of it.
8. If the Landlord does not require the Guarantor to take a Lease of the
Property, the Guarantor shall pay to the Landlord on demand a sum
equal to the rent that would have been payable under this Lease but
for the disclaimer or forfeiture in respect of the period from the
date of the disclaimer or forfeiture until the date which is six
months after the date of the disclaimer or forfeiture or the date on
which the property has been re-let by the Landlord, whichever first
occurs.
9. If any VAT is payable by the Tenant to the Landlord under the terms
of the Lease, the Guarantor's obligation shall extend to that VAT If
the Guarantor makes any payment in respect of VAT, the Landlord's
obligation to issue a VAT invoice to the Tenant under the Lease in
respect of that VAT shall not be affected, and the Landlord shall not
be under any obligation to issue a VAT invoice to the Guarantor in
respect of that VAT."
10. Schedule 6 shall be deleted and replaced with the following new
Schedule 6:
"SCHEDULE 6
AUTHORISED GUARANTEE AGREEMENT
PART A
1. The Guarantor guarantees to the Landlord and shall procure the due
and punctual performance by the Assignee throughout the Guarantee
Period of each obligation of the Assignee under this Lease and shall
pay to the Landlord from time to time on demand, or procure that the
Assignee shall pay, any sum which the Assignee is at any time liable
to pay to the Landlord under this Lease and which has not been paid
at the time the demand is made.
2. The obligations of the Guarantor under paragraph 1:
(a) constitute direct, primary, unconditional and irrevocable
obligations without the need for any recourse on the part of the
Landlord against the Assignee;
(b) shall not be affected or impaired by any concession, time or
indulgence granted by the Landlord or by any other dealing or
thing which would but for this paragraph (2)(b) operate to
discharge or reduce that liability; and
(c) shall not be affected or impaired by anything (including any
legal limitation, disability or incapacity on the part of the
Assignee) which causes any of the obligations of the Assignee
under this Lease to be or become invalid or unenforceable,
3. If any of the obligations of the Assignee under this Lease is or
becomes invalid or unenforceable the Guarantor shall perform and
discharge all such obligations as if they were primary obligations of
the Guarantor or shall procure that the Assignee performs and
discharges all such obligations.
4. The guarantee set out in this paragraph shall extend to any costs,
charges and expenses incurred by the Landlord in enforcing or seeking
its enforcement.
5. The Guarantor shall make any payments due from it under this
paragraph in full and, without any deduction or withholding in
respect of any claim whatsoever (whether by way of set-off,
counterclaim or otherwise).
6. If the Landlord brings proceedings against the Assignee, the
Guarantor shall be bound by any findings of fact, interim or final
award or interlocutory or final judgment made by an arbitrator or the
court in those proceedings.
7. If during the Guarantee Period the Assignee (being a company) enters
into liquidation and the liquidator disclaims this Lease, or the
Assignee (being a company) is dissolved and the Crown disclaims this
Lease, or the Assignee (being an individual) becomes bankrupt and the
trustee in bankruptcy disclaims this Lease, then within six months
after the disclaimer the Landlord may require the Guarantor by notice
to enter into a new lease of the Property for a term equivalent to
the residue which would have remained of the term granted by this
Lease if there had been no disclaimer at the same rents and subject
to the same covenants and conditions (including as to the review of
rent) as are reserved by and contained in this Lease.
8. The new lease and the rights and liabilities under it shall take
effect as from the date of the disclaimer and the Guarantor shall be
liable for all payments due under the new lease as from the date of
disclaimer as if the new lease had been granted on the date of
disclaimer.
9. The Guarantor shall pay the Landlord's costs of and accept the new
lease and shall execute and deliver to the Landlord a counterpart of
it.
10. If the Landlord does not require the Guarantor to take a new lease of
the Property the Guarantor shall pay to the Landlord on demand a sum
equal to the rents that would have been payable under this Lease but
for the disclaimer in respect of the period from the date of the
disclaimer until the date which is six months after the date of the
disclaimer or the date on which the Property has been re-let by the
Landlord, whichever first occurs.
11. To the extent that any provision of this guarantee does not conform
with section 16 of the Act, that provision shall be severed from the
remainder of this guarantee and this guarantee shall have effect as
if it excluded that provision.
12. If any VAT is payable by the Tenant to the Landlord under the terms
of the Lease, the Guarantor's obligation shall extend to that VAT. If
the Guarantor makes any payment in respect of VAT, the Landlord's
obligation to issue a VAT invoice to the Assignee under the Lease in
respect of that VAT shall not be affected, and the Landlord shall not
be under any obligation to issue a VAT invoice to the Guarantor in
respect of that VAT.
13. In this Schedule:
"ACT" means the Landlord and Tenant (Covenants) Xxx 0000;
"ASSIGNEE" means [insert name of assignee in respect of whom the
Tenant is entering into the authorised guarantee agreement];
"GUARANTEE PERIOD" means the period ending on the date on which the
Assignee is released by virtue of the Landlord and Tenant (Covenants)
Xxx 0000.
PART B
1. The Guarantor guarantees to the Landlord the performance by the
Assignee throughout the Guarantee Period of each of the covenants
falling to be complied with by the Tenant under this Lease and shall
indemnify the Landlord against all losses, damages, costs and
expenses arising or incurred by the Landlord as a result of such
non-performance.
2. The obligations of the Guarantor under this guarantee will not be
affected by:
(a) any time or indulgence granted to the Assignee by the Landlord;
(b) any legal limitation, disability or other circumstances
relating to the Assignee or any irregularity, unenforceability
or invalidity of any obligations of the Assignee under this
Lease;
(c) any licence or consent granted to the Assignee or any variation in
the terms of this Lease save as provided in section 18 of the Act;
(d) the release of one or more of the parties defined as the Guarantor
(if more than one); or
(e) any other act, omission, matter, event or thing whereby (but
for this provision) the Guarantor would be exonerated in whole
or in part from the guarantee other than a release under seal
given by the Landlord.
3. The Guarantor is liable to the Landlord under this guarantee as sole
or principal debtor and the obligations of the Guarantor under this
guarantee constitute a direct, primary and unconditional liability to
pay on demand to the Landlord any sum which the Assignee is liable to
pay under this Lease and to perform on demand by the Landlord any
obligation of the Assignee under this Lease without the need for any
recourse on the part of the Landlord against the Assignee. If the
Landlord brings proceedings against the Assignee, the Guarantor shall
be bound by any findings of fact, interim or final award or
interlocutory or final judgment made by an arbitrator or the court in
those proceedings.
4. If during the Guarantee Period the Assignee (being a company) enters
into liquidation and the liquidator disclaims this Lease, or the
Assignee (being a company) is dissolved and the Crown disclaims this
Lease, or the Assignee (being an individual) becomes bankrupt and the
trustee in bankruptcy disclaims this Lease, then within six months
after the disclaimer the Landlord may require the Guarantor by notice
to enter into a new lease of the Property for a term equivalent to
the residue which would have remained of the term granted by this
Lease if there had been no disclaimer at the same rents and subject
to the same covenants and conditions (including as to the review of
rent) as are reserved by and contained in this Lease.
5. The new lease and the rights and liabilities under it shall take
effect as from the date of the disclaimer and the Guarantor shall be
liable for all payments due under the new lease as from the date of
disclaimer as if the new lease had been granted on the date of
disclaimer.
6. The Guarantor shall pay the Landlord's costs of and accept the new
lease and shall execute and deliver to the Landlord a counterpart of
it.
7. If the Landlord does not require the Guarantor to take a new lease of
the Property the Guarantor shall pay to the Landlord on demand a sum
equal to the rents that would have been payable under this Lease but
for the disclaimer in respect of the period from the date of the
disclaimer until the date which is six months after the date of the
disclaimer or the date on which the Property has been re-let by the
Landlord, whichever first occurs.
8. During the Guarantee Period the Guarantor shall not:
(a) in the event of any bankruptcy, liquidation, rehabilitation,
moratorium or other insolvency proceedings relating to the
Assignee claim or prove as creditor in competition with the
Landlord; or
(b) be entitled to claim or participate in any security held by the
Landlord in respect of the Assignee's obligations to the Landlord
under this Lease; or
(c) exercise any right of set off against the Assignee.
9. To the extent that any provision of this guarantee does not conform
with section 16 of the Act, that provision shall be severed from the
remainder of this guarantee and this guarantee shall have effect as
if it excluded that provision.
10. If any VAT is payable by the Tenant to the Landlord under the terms
of the Lease, the Guarantor's obligation shall extend to that VAT. If
the Guarantor makes any payment in respect of VAT, the Landlord's
obligation to issue a VAT invoice to the Assignee under the Lease in
respect of that VAT shall not be affected, and the Landlord shall not
be under any obligation to issue a VAT invoice to the Guarantor in
respect of that VAT.
11. In this Schedule:
"ACT" means the Landlord and Tenant (Covenants) Xxx 0000;
"ASSIGNEE" means [insert name of assignee in respect of whom the
Tenant is entering into the authorised guarantee agreement];
"GUARANTEE PERIOD" means the period ending on the date on which the
Assignee is released by virtue of the Landlord and Tenant (Covenants)
Act 1995."
PART II
THE SIDE DEED
DATED , [ ]
[RELEVANT GLYNWED COMPANY] LIMITED
-and-
GLYNWED PROPERTIES LIMITED
-and-
NIAGARA LASALLE (UK) LIMITED
-and-
NIAGARA CORPORATION
----------------------------
SIDE DEED
relating to land and buildings
known as
[ ]
and lease dated [ ]
of that property
----------------------------
XXXXX & XXXXX
London
THIS DEED is made on [ ], 1999
BETWEEN:
(1) [RELEVANT GLYNWED COMPANY] LIMITED (registered number [
]) whose registered office is at Xxxxxxxx Xxxxx, Xxx
Xxxxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxx ("GLYNWED");
[(2) INCLUDE IF APPLICABLE - GLYNWED PROPERTIES LIMITED
(registered number 254 047) whose registered office is at Xxxxxxxx Xxxxx,
Xxx Xxxxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxx; and]
(3) NIAGARA LASALLE (UK) LIMITED (registered number 3725308)
whose registered office is at 1st Floor, Bouverie House, 000 Xxxxx Xxxxxx,
Xxxxxx, XX0X 0XX ("NIAGARA"); and
(4) NIAGARA CORPORATION a corporation organised and existing under the
Laws of the State of Delaware, whose principal office is at 000
Xxxxxxx Xxxxxx, Xxx Xxxx 00000, XXX (the "GUARANTOR".)
RECITALS
(A) This Deed is supplemental to the Lease by which the Property was
demised for the Term.
(B) Glynwed is the landlord under the Lease, Niagara is the tenant under
the Lease and the Guarantor is the guarantor under the Lease.
[(C) INCLUDE IF APPLICABLE - Glynwed Properties Limited is the beneficial
owner of the Property and has confirmed its consent to this Deed.]
(D) The parties have agreed that while Glynwed is the landlord under the
Lease and Niagara is the tenant under the Lease and occupies the
whole of the Property and the Guarantor is the guarantor under the
Lease, the terms of the Lease shall be varied in accordance with the
terms of this Deed.
THIS DEED WITNESSES as follows:
1. DEFINITIONS
In this Deed:
"LANDLORD" means Glynwed;
"LEASE" means the lease of even date herewith and made between
Glynwed (1) and Niagara (2) in respect of the Property and includes
all deeds and documents supplemental to it;
"PROPERTY" means [ ] as more particularly described in the Lease;
"TENANT" means Niagara;
"TERM" means the term of years granted by the Lease.
2. INTERPRETATI0N
(1) Where there are two or more persons included in the expressions
"Glynwed", "Niagara" or "Guarantor" each reference to Glynwed or
Niagara includes a separate reference to each of those persons.
(2) Any reference, express or implied, to an enactment includes references
to:
(a) that enactment as amended, extended or applied by or under any
other enactment (before or after the execution of this Deed);
(b) any enactment which that enactment re-enacts (with or without
modification);
(c) any subordinate legislation made (before or after the execution
of this Deed) under that enactment, as amended, extended or
applied as described in paragraph (a) above or under any
enactment referred to in paragraph (b) above; and
(d) any consents, licences and permissions given (before or after
the execution of this Deed) under that enactment, as amended,
extended or applied as described in paragraph (a) above or
under any enactment referred to in paragraph (b) above or under
that subordinate legislation and any conditions contained in
those consents, licences and permissions.
(3) Any reference, express or implied, to enactments generally includes
subordinate legislation and any legislation of the European Union
that is directly applicable in the United Kingdom and includes
existing enactments and those that come into effect during the Term.
(4) Sub-clauses (1) to (3) above apply unless the contrary intention appears.
(5) The headings in this Deed do not affect its interpretation.
3. THIS DEED
The provisions of this Deed shall only apply while title to the
reversion of the Lease is vested in Glynwed and while the Term of the
Lease is vested in Niagara and whilst Niagara is in occupation of the
Property and whilst the Guarantor is the guarantor under the Lease
and then only during the period commencing on the date of the Lease
and ending either on the date before the date of the first
transfer/assignment of the reversion of the Lease by Glynwed or on
the day before the date of the first transfer/assignment of the Lease
by Niagara, whichever is earlier.
4. VARIATIONS
The provisions of the Lease shall be varied in accordance with the
provisions set out in the Schedule to this Deed
5. UNDERLETTINGS
If Niagara underlet the whole of the Property, clause 4 (Variations)
of this Deed shall not apply.
6. GUARANTEE
In consideration of Glynwed entering into this Deed at the
Guarantor's request, the Guarantor guarantees to Glynwed the
obligations and liabilities of Niagara under this Deed, such
guarantee to be on the same terms as the guarantee set out in Clauses
1 - 6 and 11 of Part A of Schedule 5 to the Lease which is hereby
incorporated into this Deed subject to all necessary amendments to
ensure that the guarantee applies to this Deed.
7. TERMINATION
This Deed shall terminate on the happening of any one or more of the
following events:
(a) the termination of the Lease (through effluxion of time,
forfeiture or otherwise) unless the Tenant is granted relief
from forfeiture but notwithstanding any such termination the
Tenant shall be under no greater liability to the Landlord in
relation to any period prior to such termination than it would
have been if this Deed had not terminated;
(b) an assignrnent/transfer of the reversion in the Lease by Glynwed;
or
(c) an assignment or underletting of the whole or any part of the
Property by Niagara.
8. ASSIGNMENTS
This Deed is not capable of assignment by Niagara and is personal to
it.
9. NO SURRENDER
This Deed is not intended to and does not effect any surrender of the
Lease or the grant of any new lease.
10. GENERAL
(1) DISPUTES
Any dispute regarding a provision of this Deed shall be determined by
a single arbitrator agreed by Glynwed and Niagara or, failing
agreement, by a single arbitrator appointed by the president or his
deputy for the time being of the Royal Institution of Chartered
Surveyors in accordance with the Arbitration Xxx 0000.
(2) JOINT AND SEVERAL LIABILITY
Where Niagara or Glynwed or the Guarantor is more than one person:
(a) those persons shall be jointly and severally responsible in
respect of every obligation undertaken by them under this Deed;
and
(b) Glynwed may release or compromise the liability of any of those
persons under this Deed or grant any time or other indulgence
without affecting the liability of any other of them.
(3) NOTICES IN WRITING
Every notice, consent, approval or direction given under this Deed
shall be in writing.
(4) COUNTERPARTS
This Deed may be executed in any number of counterparts, all of
which, taken together, shall constitute one and the same Deed and any
party may enter into this Deed by executing a counterpart.
11. NOTICES
(1) Any notice or other document to be served under this agreement
may be delivered or sent by post to the party to be served as
follows:
(a) to Glynwed at the address set out in this Agreement marked
for the attention of the Company Secretary;
(b) to Niagara at:
Victoria Steel Works
Xxxx Xxxx
Xxxxxx
Xxxxxxxxxx
Xxxx Xxxxxxxx XX00 0XX
marked for the attention of Xxxx Xxxxxxx
with a copy to Niagara Corporation at 000 Xxxxxxx Xxxxxx,
Xxx Xxxx, 00000, XXX;
(c) to the Guarantor at:
000 Xxxxxxx Xxxxxx, Xxx Xxxx, 00000, XXX
or at such other address as it may have notified to the other
party in accordance with this clause. Any notice or other
document sent by post shall be sent by prepaid first class
recorded delivery post (if within the United Kingdom) or by
prepaid registered airmail (if elsewhere).
(2) Any notice or other communication shall be deemed to have been
duly given:
(a) if delivered personally, when left at the address referred to
in subclause (1); or
(b) if sent by recorded mail other than airmail, two days after
posting it; or
(c) if sent by registered airmail, six days after posting it,
provided always that a notice given in accordance with
the above but received on a day which is not a Business
Day or after business hours on a Business Day in the
place of receipt will only be deemed to be given on the
next Business Day in that place.
12. GOVERNING LAW AND JURISDICTION
(1) This Deed is governed by and shall be construed in accordance with
English Law.
(2) The Guarantor submits to the jurisdiction of the English Courts for
all purposes relating to this Deed and appoints the Grantee's
solicitors, Paisner & Co of Xxxxxxxx Xxxxx, 000 Xxxxx Xxxxxx, Xxxxxx
XX0X 0XX (or such other solicitors as shall be notified by the
Guarantor to Glynwed) as agent for service of process with respect
thereto.
IN WITNESS of which this Deed has been executed as a deed in writing and
has been delivered on the date which first appears on page 1.
SCHEDULE
The provisions of the Lease shall be varied as follows:
1. In Clause 1 (Definitions) the definition of "INSURED RISKS" shall be
deleted and replaced with the following definition:
"INSURED RISKS" means all risks of physical loss or damage (including
but not limited to subsidence and theft) as is generally available
under an all risks policy from time to time available in the
insurance market.
2. Sub-clause 5(4)(a) shall be amended so that the wording "or repair
damage caused by an Insured Risk save where: "shall be deleted from
the last line of the sub-paragraph (a) and sub-paragraphs 5(4)(a)(i)
and (ii) shall be deleted.
3. Clause 8 (Insurance) shall be deleted and replaced with the following new
Clause 8:
"8 INSURANCE
(1) TENANT'S INSURANCE OBLIGATIONS
The tenant shall keep the Property insured in the joint names
of the Landlord and the Tenant with insurers or underwriters of
repute in accordance with the provisions of this clause.
(2) SUM AND RISKS INSURED
The Property shall be insured in a sum not less than its full
reinstatement cost against loss or damage by the Insured Risks
and the insurance shall extend to architects and other
professional fees in relation to the reinstatement of the
Property and the cost of demolition and removal of debris.
(3) INSURANCE UNAVAILABLE
The Tenant will immediately notify the Landlord if the Tenant
is unable to arrange insurance in compliance with the
provisions of this clause either in whole or in part.
(4) REINSTATEMENT
If the Property is destroyed or damaged by any of the Insured
Risks, then the Tenant shall use reasonable endeavours to:
(a) obtain all consents and permissions necessary for
reinstatement as soon as reasonably possible; and
(b) subject to obtaining those consents and permissions, lay
out as soon as practicable all insurance monies received
by the Tenant and an amount equal to any excess imposed
by the insurers in reinstating the Property making good
any shortfall out of its own money save as set out in
sub-clause 8(12)(a) below."
(5) FAILURE TO REINSTATE
(a) If reinstatement in accordance with sub-clause (4) has
not commenced within 9 months of the date of the
destruction or damage and provided the Tenant is not
prevented from commencing reinstatement because of a
supervening event (as defined in sub-clause (10) below)
and the Tenant does not within 10 working days of the
expiry of that 9 month period exercise the option
contained in the Option Deed or if the Tenant exercises
the option but subsequently fails to complete the
purchase in accordance with the Option Deed the Landlord
may at any time after the expiry of the 10 working days
or the failure to complete serve written notice on the
Tenant terminating the Lease with immediate effect and
the provisions of clause 12(3) of the Lease will apply to
such termination.
(b) If reinstatement by the Tenant has not been completed in
accordance with sub-clause (4) above by the date 3 years
from the date of damage or destruction of the Property
either party may at any time after the expiry of the 3
year period serve 10 days written notice on the other
terminating the Lease, such termination to take effect on
the expiry of the Landlord's written notice and the
provision of clause 12(3) of the Lease will apply to such
termination.
On the termination of the Lease under sub-paragraph (a)
or (b) of this sub-clause the Tenant shall pay all
insurance monies together with an amount equal to any
shortfall in the full reinstatement value of the Property
(save as set out in sub- clause 8(12)(a) below) and the
cost of architects and other professional fees in
relation to the reinstatement of the Property and the
cost of demolition and removal of debris to the Landlord
save to the extent that the Tenant has properly applied
any portion of the insurance monies with the prior
written approval of the Landlord to the reinstatement of
the Property up to the date of termination of the Lease
by the Landlord. Any dispute as to the amount to be paid
by the Tenant shall be referred to arbitration.
Any Landlord's notice to terminate the Lease served under
this sub-clause shall not take effect if at any time
prior to the expiry of the notice the Tenant exercises
its option to purchase the freehold of the Property
pursuant to the Option Deed provided that if the Tenant
subsequently fails to complete the purchase in accordance
with the Option Deed the Landlord may at any time serve a
further notice on the Tenant terminating the Lease with
immediate effect and the provisions of clause 12(3) of
the Lease will apply to such termination.
(6) FAILURE TO INSURE
If the Tenant fails to insure in accordance with this clause 8
the Landlord may (but without prejudice to its other rights,
including its right of re-entry) insure in accordance with this
clause (but in its sole name or in the joint names of the
Landlord and Tenant, at the Landlord's option) and all premiums
paid by the Landlord and all incidental expenses will be
re-paid by the Tenant to the Landlord on demand.
(7) PRODUCTION OF POLICY
Whenever reasonably required to do so by the Landlord, the
Tenant shall produce to the Landlord a copy of the insurance
policy or other evidence of it and evidence of payment of the
last premium.
(8) NOTICE OF DAMAGE
If the Property is destroyed or damaged by any of the Insured
Risks, the Tenant shall give notice to the Landlord as soon as
the destruction or damage comes to the notice of the Tenant or
ought to have come to the notice of the Tenant and shall,
within 1 month of such destruction or damage, notify the
Landlord as to whether or not the Tenant wishes to proceed to
reinstate the Property. If the Tenant notifies the Landlord that
the Tenant does not wish to reinstate the Property then all
insurance monies shall belong to the Landlord free of any
interest of the Tenant and the Tenant will take all steps
necessary which are in the Tenant's control or ought reasonably
to be in its control to ensure that all insurance monies and an
amount equal to the any shortfall in the full reinstatement
value of the Property and the cost of the architects and other
professional fees in relation to the reinstatement of the
Property and the cost of demolition and removal of debris are
paid to the Landlord (including paying to the Landlord any
which are paid to the Tenant) and (subject to complying with
these obligations as to insurance monies) the Tenant will be
released from the Tenant's obligation to reinstate under
sub-clause (4) above and the Landlord may, with immediate
effect, reinstate the Property and this Lease will terminate on
the date 12 months after service of the Tenant's notice stating
that the Tenant does not wish to reinstate. If the Tenant
notifies the Landlord that it does wish to reinstate the
Property then the Tenant's break option contained in clause 12
of the Lease shall be suspended until such time as the Property
is full reinstated by the Tenant in accordance with sub-clause
(4) above. Termination will not affect either party's rights in
connection with any breach by the other of their respective
obligations in this Lease which may have occurred before the
date on which this Lease terminates including (without
limitation) the Landlord's rights in relation to any breach of
the obligations contained in clause 8(2).
(9) PREVENTION OF REINSTATEMENT
The Tenant shall not be obliged to reinstate the Property in
accordance with sub-clause (4) while prevented by a supervening
event. If the Tenant is unable to commence reinstatement within
twelve months from the date of destruction or damage because of
a supervening event and the Property or a substantial part of
it is unfit for occupation either the Landlord or the Tenant
may determine the Term by serving notice on the other at any
time within one month of the end of the twelve month period.
For the avoidance of doubt any notice served by the Landlord
under this sub-clause to determine the Lease shall not take
effect if at the time of service the Tenant has exercised its
option to purchase the freehold of the Property pursuant to the
Option Deed provided that if the Tenant subsequently fails to
complete the purchase in accordance with the Option Deed the
Landlord may at any time serve a further notice on the Tenant
terminating the Lease with immediate effect. On service of a
notice to terminate the Term shall cease but without prejudice
to any rights that either party may have against the other for
breach of any of the covenants by the Landlord or the Tenant or
the conditions in this Lease and the Tenant shall pay all
insurance monies together with an amount equal to any shortfall
in the full reinstatement value of the Property (save as set
out in sub-clause 8(l2)(a) below) and the cost of architects
and other professional fees in relation to the reinstatement of
the Property and the cost of demolition and removal of debris
to the Landlord save to the extent that the Tenant has properly
applied any portion of the insurance monies with the prior
written approval of the Landlord to the architects or other
professional fees or debris removal or demolition in attempting
to reinstate the Property up to the happening of the
supervening event. Any dispute as to the amount to be paid by
the Tenant shall be referred to arbitration.
(10) SUPERVENING EVENT
In sub-clause (5) and (9) a supervening event means any of the
following:
(a) inability of the Tenant to obtain the consents and permissions
referred to in sub-clause (4) despite using all reasonable
endeavours to do so;
(b) grant of any of the consents or permissions subject to a
lawful condition with which it would be unreasonable to
expect the Tenant to comply or the Tenant being requested
as a precondition to obtaining any of the consents or
permissions to enter into an agreement with the planning
authority or any other authority containing conditions
with which it would be unreasonable to expect the Tenant
to comply;
(c) some defect in the site upon which reinstatement is to take
place so that it could not be undertaken; and
(d) prevention of reinstatement by any cause beyond the control of
the Tenant.
(11) DOUBLE INSURANCE
Save as provided in this Deed the Property Agreement and the
Sale of Business Agreement the Landlord shall not effect any
insurance relating to the Property against any of the Insured
Risks.
(12) VITIATION
(a) If the Landlord does or omits to do anything at the
Property which makes the Tenant's insurance policy void
or voidable the Landlord shall make up any shortfall in
the insurance proceeds out of its own money.
(b) The Landlord may, at any time, request that the Tenant
obtain and upon such a request use reasonable endeavours
to obtain an insurance policy that contains a non-vitiation
provisions provided that the Landlord shall pay to the
Tenant any increase in the amount of premium attributable
to the inclusion of the non-vitiation provision.
THE COMMON SEAL OF )
[RELEVANT GLYNWED )
COMPANY LIMITED )
was affixed in the )
presence of: )
Director:
Secretary:
THE COMMON SEAL OF )
GLYNWED PROPERTIES )
LIMITED was affixed in the )
presence of: )
Director:
Secretary:
THE COMMON SEAL OF )
NIAGARA (UK) LIMITED )
was affixed in the )
presence of: )
Director:
Secretary:
[EXECUTION CLAUSE FOR
NIAGARA CORPORATION]
