Exhibit 10.33
Dated this 15th day of August 2000
Ability Developments Ltd (1)
And
Avenue A (UK) Limited (2)
And
Avenue A Inc (3)
---------------------------
LEASE
Relating to
Lower Ground & Ground Floor
At 0 Xxxx Xxxxxx
Xxxxxx XX0
---------------------------
[LOGO OF
XXXXXXXX
XXXXXXXX
SOLICITORS]
00 XXXX XXXXXX
XXXXXX
XX0X 0XX
TEL: 000 0000 0000
FAX: 000 0000 0000
TABLE OF CONTENTS
Page
No:
1. Interpretation
2. Demise and Reservation of Rent
3. Provisions as to rent firstly reserved
4. Tenant's covenants
4.1 To pay rent
4.2 Not to prejudice insurance etc
4.3 Taxes
4.4 To keep in repair
4.5 Decoration
4.6 Expenses of this used in common
4.7 Yield Up
4.8 Statutory Obligations
4.9 Defective Premises Xxx 0000
4.10 Planning Acts
4.11 Copies of Notice
4.12 Join with landlord in Making Appeals etc
4.13 No Application for Planning Permission
4.14 Complete Developments within Term
4.15 Purchase Notice
4.16 Compensation
4.17 Entry for Repairs
4.18 Entry for Other purposes
4.18.1 Works to Adjoining premises
4.18.2 Rent Reviews and Renewal
4.18.3 Taking Inventories
4.18.4 Let or sale boards and viewing
4.19 Alterations
4.20 Advertisements
4.21 Encroachments
4.22 User
4.23 Indemnity as to Rating Relief
4.24 Nuisance
4.25 Removal of Rubbish
4.26 Alienation
4.27 Notification of Occupiers etc
4.28 Register Assignments etc
4.29 Notice of Insolvency Matters
4.30 Legal and other costs
4.31 Floor Loading
4.32 Fire Fighting Equipment
4.33 To Pay Gas Charges etc
4.34 Value Added Tax
4.35 Indemnity for Landlord
4.36 Glass Insurance
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4.37 Regulations.
5. Landlords Covenants
5.1 Quiet Enjoyment
5.2 Insurance
6. Abatement of Rent
7. Re Entry
8. Notices
9. Landlord's Development
10. Party Walls
11. Statutory Compensation
12. Exclusion of warranty and implied covenants
13. Breakdown of Service
14. Agreement
15. Certificate of Value
THE FIRST SCHEDULE (Rights and Privileges)
THE SECOND SCHEDULE (Exceptions and Reservations)
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THIS LEASE made the 15th day of August Two Thousand [SEAL]
BETWEEN:
(1) ABILITY DEVELOPMENTS LIMITED of registered office Xxxxxxx Xxxxx, Xxxx
Xxxx, Xxxxxx X0 0XX
(hereinafter called "The Landlord")
(2) AVENUE A (UK) LIMITED of registered office Carmelite 00 Xxxxxxxx
Xxxxxxxxxx Xxxxxx XX0X 0XX
(hereinafter called "The Tenant")
(3) AVENUE A INC incorporated in the State of Washington and whose principal
office is at 000 0xx Xxxxxx Xxxxxxx XX 00000 XXX (hereinafter called "the
Surety")
WITNESSES as follows:-
1. INTERPRETATION [ILLEGIBLE]
1.1 In this Lease the following expressions shall unless the context
otherwise requires have the following meanings respectively that is
to say:
1.1.1 "The Landlord" shall include the person or persons for the
time being entitled to the reversion immediately expectant
upon the determination of the Term
1.1.2 "The Tenant" shall (but without prejudice to the Application
and operation of Section 79 of the Law of Property Act 1925)
include the person or persons in whom the Term is from time to
time vested whether by assignment devolution in law or
otherwise and whenever the expression "the Tenant" shall
include more than one person whether the original Tenant or
the Tenant by devolution of title then the covenants on the
part of the Tenant herein contained shall be deemed to be
joint and several
1.1.3 "the Surety" shall in the case of personal sureties include
the
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executors and administrators of the Surety and where there be
more than one shall include all or any of them
1.1.4 "the Demised Premises" shall mean all those premises known as
Lower Ground and Xxxxxx Xxxxx, 0 Xxxx Xxxxxx, Xxxxxx XX0xx the
same is shown edged red on the plan attached hereto including
the windows, window frames, glass, sash chords, doors, pipes
and electrical heating installations in the said premises
together with all additional and improvements at any time and
from time to time made thereto and all fixtures of every kind
which shall from time to time be made in or upon the said
premises (whether originally affixed or fastened to or upon
the same to otherwise) except such tenants fixtures as can be
removed from the said premises without defacing the same and
excluding specifically load bearing walls and any other
structural parts of the building and the foundations beneath
the same
1.1.5 "the Building" shall mean the main and ancillary buildings (if
any) of which the Demised Premises form part
1.1.6 "the Term Commencement Date" shall mean the 15th day of August
Two Thousand
1.1.7 "the Contractual Term" shall mean ten years (10) and 'the
Term" shall mean the Contractual Term and any statutory
continuation of the same
1.1.8 "the Term Expiry Date" shall mean the 14th day of August Two
Thousand and Ten
1.1.9 "the Rent" shall mean Forty Four Thousand One Hundred and
Eighty Seven Pounds per annum ((pounds)44,187.OOp.a.) During
the first five years of the Term and thereafter subject to
review as hereinafter mentioned save that the Rent for the
period 25th December 2000 to 24th April 2001 shall be a
peppercorn if demanded
1.1.10 "the Rent Commencement Date" shall mean the 15th day of
August Two Thousand
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1.1.11 "Review Date" shall mean the 14th Day of August in the year
Two Thousand and Five
1.1.12 "Review Period" shall mean the period starting with any Review
Date up to the next Review Date or starting with the last
Review Date up to the end of the Term
1.1.13 "the Permitted Use" shall mean the use as offices as defined
by Class B1 of the Town and Country Planning (Use Classes)
Order 1987.
1.1.14 "Service Media" shall mean watercourses channels pipes drains
sewers cables wires meter ducts and other conducting media and
other installations and equipment for the supply of air water
electricity gas drainage or other service telephone signals
and any other things serving the Demised Premises.
1.1.15 "the Surveyor" shall mean any person or firm appointed by the
Landlord who is suitably and professionally qualified to
perform any of the function of the Surveyor under this Lease
(including an Employee of the Landlord and including the
person or firm appointed by the Landlord to collect the rents)
1.1.16 "the Insured Risks" shall mean loss of damage by fire
aircraft and aerial devices dropped therefrom explosion
earthquake riot civil commotion malicious damage storm tempest
flood burst pipes and impact terrorism subsidence heave and
such other risks as the Landlord may reasonably decide or the
Tenant may reasonably in writing require (but subject to cover
against any such aforementioned risk being available at a
premium which is in the Landlord's opinion reasonable in all
the circumstances)
1.2 Any reference to a specific statute includes any statutory extension
or modification amendment or re-enactment of such statute from time
to time and any regulations or orders from time to time made under
such statute
1.3 References to Value Added Tax shall include references to any
similar tax whether in substitution for or in addition to it
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1.4 The expression "the Planning Acts" shall mean "the Planning Acts" as
defined in Section 336(1) of the Town and Country Planning Acts 1990
and all other statutes for the time being in force relating to
planning control and development and any regulations orders
directors or notices made or given thereunder and all licences
consents permissions and conditions granted or imposed at any time
thereunder.
1.5 Any covenant by the Tenant not to do or omit to be done any act or
thing shall be deemed to include an obligation (so far as is within
the power of the Tenant) not to permit allow or suffer such act or
thing to be done or omitted by another person
1.6 Words importing one gender shall include all other genders and words
importing the singular shall include the plural and vice versa
1.7 The headings to the clauses hereof and Schedules hereto and the
short particulars on the cover page shall be deemed not to form any
part thereof and shall not affect the interpretation hereof in any
way
2. DEMISE AND RESERVATION OF RENT
In consideration of the rent covenants and conditions hereafter reserved
and contained and on the part of the Tenant to be paid performed and
observed the Landlord hereby with full title guarantee demises unto the
Tenant the Demised Premises
TOGETHER WITH (in common with the Landlord and all other persons entitled
thereto and subject to the exceptions reservations and provisions
hereinafter contained) the rights and privileges set out in the First
Schedule hereto
EXCEPT AND RESERVING unto the Landlord and the successors in title of the
landlord and their respective lessees tenants agents servants licensees
and other persons claiming through or under the Landlord and all other
persons who now have or may hereafter be entitled to or granted by the
Landlord a similar right or rights the easements rights and privileges
specified in the Second Schedule hereto.
7
TO HOLD the same unto the Tenant from and including the Term Commencement
Date and for the Contractual Term expiring at midnight on the Term Expiry
Date
SUBJECT TO all rights easements privileges restrictions covenants and
stipulations of whatever nature effecting the Demised Premises
PAYING THEREFOR throughout the term
2.1 FIRSTLY the yearly rent mentioned in Clause 3 hereof by equal
quarterly payments in advance on the usual quarter days in every
year without any deduction or set off whatsoever the first payment
to be calculated from and including The Rent Commencement Date to
the next quarter day thereafter and to be made on the execution
hereof
2.2 AND SECONDLY by way of further rent 16.6% of such sum or sums as the
Landlord shall in accordance with the covenant in clause 5 hereof
from time to time properly spend by way of premiums for the
insurance of the Building from the Term Commencement Date (ii) all
costs incurred by the Landlord in any revaluation (but not more
frequently than once a year) of the Demised Premises for insurance
purposes and (iii) any reasonable excess suffered or properly
payable by the Landlord in respect of any insurance claim relating
to the Demised Premises such rent to be paid within twenty one days
of written demand therefor made by the Landlord to the Tenant
following the payment of any such sum by the Landlord
2.3 AND THIRDLY by way of further rent all Value Added Tax chargeable in
respect of or by reference to or as a result of the rents
above-mentioned
2.4 PROVIDED ALWAYS that in the event of the said rents or any other sum
or sums properly payable to the Landlord hereunder or any part
thereof being in arrear for more than fourteen days whether (in the
case of the rent firstly hereinbefore reserved only) lawfully
demanded or not the Tenant shall pay interest calculated on a daily
basis with quarterly rests on the usual quarters days at the rate of
Four per centum per annum (4%) above the base lending rate for the
time being in force of Barclays Bank PLC (or such other London
clearing bank as the Landlord may from time to time reasonably
specify by notice in writing to the Tenant) on the amount in arrear
from the day on which
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[GROUND FLOOR PLAN OMITTED]
[BASEMENT FLOOR PLAN OMITTED]
it became payable until the day payment is made (including any
period during which the Landlord may reasonably refuse to accept any
instalment of rent or other payment due hereunder by reason of the
Landlord's reasonable belief that a breach of covenant by the Tenant
has occurred) and to be payable to the Landlord on demand without
prejudice to any other rights the Landlord may enjoy and the
aggregate amount for the time being so payable shall at the option
of the Landlord be recoverable by action or as rent in arrear
3. PROVISIONS AS TO RENT FIRSTLY RESERVED
3.1 The yearly rent firstly hereinbefore reserved payable hereunder
shall be as follows:-
3.1.1 until the first Review Date the Initial Rent and
3.1.2 during each successive Review Period a rent equal to the rent
previously payable hereunder or such revised rent as may be
ascertained as herein provided whichever be the greater
3.2 Such revised rent for any Review Period shall be the lesser of such
sum:-
(a) as shall be specified in a notice in writing by or on behalf
of the Landlord to the Tenant given not earlier than twelve
months preceding the relevant Review Date (but so that time
shall not be of the essence in relation to the giving of such
notice) or
(b) as shall within three months after the date of service of such
notice be agreed between the parties in writing in
substitution for the said sum (time to be of the essence of
such agreement) or
(C) as shall be independently determined at the election of the
Tenant by a counter-notice in writing given by the Tenant to
the Landlord not later than two months after the date of
service of the Landlord's said notice (time to be of the
essence in relation to the giving of such counter-notice) such
independent determination to be by a single arbitrator or by
an independent surveyor (acting as an expert and not
9
as an arbitrator) appointed for that purpose by the parties
jointly in writing or upon their failure to agree upon such
appointment within one month after the date of the said
counter-notice (time to be of the essence thereof) then by the
President for the time being of the Royal Institution of
Chartered Surveyors on the Application of either party (in the
exercise of the said option) and so that in case of such
arbitration and valuation the revised rent to be awarded by
the arbitrator or valuer shall be such as he shall decide
should be the open market yearly rent at which the Demised
Premises might reasonably be expected to be let at the
relevant Review Date
3.2.1 on the following assumptions as at that date:-
3.2.1.1 that the Demised Premises
3.2.1.1.1 are available to let on the open market
without a fine or premium with vacant possession
by a willing Landlord to a willing Tenant
(including the Tenant) for the unexpired period of
the Contractual Term or 10 years whichever is the
greater
3.2.1.1.2 are to be let as whole subject to the terms of
this Lease and any licence or consent granted
hereunder (other than the amount of the rent
hereby reserved but including the provisions for
review of that rent)
3.2.1.1.3 are fully fitted out and equipped and fit and
available for immediate occupation and use for the
Permitted use
3.2.1.1.4 may be used for any of the purposes permitted
by this Lease as varied or extended by any licence
consent granted hereunder
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3.2.1.2 that the covenants herein contained have been
fully performed and observed
3.2.1.3 that no work has been carried out to the Demised
Premises which has diminished the rental value
save for works carried out in compliance of any
statutory obligations and that in case the Demised
Premises have been destroyed or damaged they have
been fully restored
3.2.1.4 that no reduction is to be made to take account
of any rental concession which on a new letting
with vacant possession might be granted to the
incoming tenant for a period within which its
fitting out works would take place
3.2.2 And having rent to the Tenant's rights under Part II of the
Landlord and Xxxxxx Xxx 0000
3.2.3 But disregarding:-
3.2.3.1 any effect on rent of the fact that the Tenant
its sub-tenants or their respective predecessors
in title have been in occupation of the Demised
Premises
3.2.3.2 any goodwill attached to the Demised Premises by
reason of the carrying on thereat of the business
of the Tenant its sub-tenants or their
predecessors in title in their respective
businesses and
3.2.3.3 any increase or decrease in the rental value of
the Demised Premises attributable to the existence
at the relevant Review Date of any alteration
addition or improvement to the Demised Premises or
any part thereof which has been carried out at the
cost of the Tenant otherwise that in pursuance of
an obligation to the Landlord or its predecessors
in title and which in the case of an alteration
addition or improvement causing an increase in the
rental value of the Demised Premises has been (I)
carried out with
11
consent where required and (ii) completed not more
than 21 years before the relevant Review Date
3.2.3.4 Any effect on rental value of any obligation of
the Tenant to remove alterations or to restore or
reinstate the Demised Premises
3.3 In the case of an arbitration the arbitration shall be conducted in
accordance with the Arbitration Xxx 0000
3.4 When the amount of any rent to be ascertained as hereinbefore
provided shall have been so ascertained memoranda thereof shall
thereupon be signed by or on behalf of the Landlord and the tenant
and the Surety (if any) for the time being and annexed to this Lease
and the Counterpart thereof and the parties shall bear their own
costs in respect thereof
3.5 3.5.1 If the Revised Rent payable on and from any Review Date has
not been ascertained by that Review Date rent shall continue
to be payable at the rate previously payable and forthwith
upon the revised rent being ascertained the Tenant shall pay
by way of further rent to the Landlord any shortfall between
the rent and the revised rent payable up to and on the
preceding quarter day together with interest thereon equal to
the base rate of Barclays Bank Plc applicable at that time
such interest to be calculated on a day to day bass from the
relevant Review Date on which it would have been payable if
the Revised Rent had then been ascertained to the date of
actual payment of any shortfall and the interest so payable
shall be recoverable in the same manner as rent in arrear
3.5.2 For the purpose of this sub clause the revised rent shall be
deemed to have been ascertained on the date when the same has
been agreed between the Landlord and the Tenant or as the case
may be the date of the award of the arbitrator
3.6 If any at material time there shall be no President of the Royal
Institution of Chartered Surveyors or if the said President shall
for any reason not be available or be unable or unwilling to make
such an appointment as
12
aforesaid, the said appointment may be made by the Vice President or
next senior officer of the said Institution then available and able
and willing to make such appointment
3.7 If any Arbitrator appointed in accordance with this clause shall
fail or refuse to accept his appointment or shall fail to make an
assessment as hereinbefore provided or if he shall relinquish his
appointment or due or if it shall become apparent that for any
reason he will be unable to complete his duties hereunder the
Landlord or the Tenant may apply to the said President or other
person as hereinbefore provided for a substitute to be appointed in
his place which procedure may be repeated as many times as if it
were an original appointment hereunder by the President for the time
being of the said Institution
3.8 If either the Landlord or the Tenant shall fail to pay any costs
awarded against it in the case of an arbitration under the
provisions hereof within twenty one days of the same being demanded
by the Arbitrator the other shall be entitled to pay the same and
the amount so paid shall be repaid by the party chargeable on demand
3.9 Unless and until either party shall pursuant to the provision of
Clause 3.2(c) hereof elect for an independent determination to be
made by an arbitrator nothing herein shall constitute an agreement
for arbitration
4. TENANT'S COVENANTS
The Tenant HEREBY COVENANTS with the Landlord as follows:-
4.1 To pay rent
4.1.1 To pay the said rents hereby reserved and any interest on
arrears of rent as hereinbefore provided at the times and in
the manner aforesaid
4.1.2 At the reasonable request in writing of the Landlord made at
any time and from time to time during the Term to make the
payment of the rent firstly hereby reserved by banker's
standing order into a bank
13
account designated by the Landlord and at the request in
writing from time to time of the Landlord to cancel any such
standing order
4.2 Not to prejudice insurance etc.
4.2.1 Not to do in or on the Demised Premises anything whereby the
insurance of the Demised Premises against the Insured Risks
may be vitiated or prejudiced nor without the consent of the
Landlord do or omit or allow to be done or omitted anything
whereby any additional premium may become payable for the
insurance of the Demised Premises or any additional excess may
be imposed and in the event of any Landlord's insurance policy
for the Demised Premises being vitiated in consequence of any
act action or omission of the tenant fully and effectually to
indemnify the Landlord against all costs claims indemnify the
Landlord against all costs claims proceedings or losses
properly incurred and resulting from any damage or injury to
the Demised Premises or any part thereof in respect of which
compensation is not forthcoming from the Landlord's insurance
company
4.2.2 To notify the Landlord forthwith of any damage to or
destruction of the Demised Premises or any part thereof
occasioned by the occurrence of any of the Insured Risks and
to take all reasonable steps necessary or desirable to
minimise such damage or destruction and to take all reasonable
steps to assist the Landlord's written insurance claims in
respect of all such damage or destruction
4.3 Taxes
To pay bear and discharge all existing and future rates taxes levies
assessments duties outgoings charges and impositions whatsoever
(whether imposed by statute or otherwise and whether of a national
or local character) now or at any time or times during the term
assessed imposed or charged upon or payable in respect of the
Demised Premises or any part or parts thereof and whether payable by
the Landlord or Tenant or by the owner or occupier thereof except
any tax occasioned by any dealing by the Landlord with the
Landlord's reversionary interest in the Demised Premises but
including any tax payable by the Landlord (i) on a deemed disposal
of any
14
interest of the Landlord in the Demised Premises or any part or
parts thereof resulting from any development carried out or
commenced by the Tenant or (ii) otherwise as a result of any act or
omission of the Tenant including a due proportion (to be determined
by the Landlord or the surveyor) of all such payments as may be
assessed charged or payable upon or in respect of the Demised
Premises with any other premises
4.4 To keep in repair
4.4.1 At all times to keep the whole of the Demised Premises and the
appurtenances thereof including (without prejudice to the
generality of the foregoing) all doors door frames plate glass
windows window frames fixtures and fittings fastenings and all
service media exclusively serving the Demised Premises
(situate inside the Demised Premises) and sanitary and water
and heating apparatus therein and the painting papering and
decoration thereof in the Demised Premises in good and
substantial repair and condition throughout the term (except
damage by the Insured Risks provided that the Landlord's
policies of insurance shall not have become vitiated or
payment of the policy monies refused in whole or in the part
of consequence of some act neglect or default of the Tenant)
4.4.2 To keep any part of the Demised Premises which may not be
built upon adequately surfaced in good condition tidy and free
from weeds and rubbish and all landscapes or planted areas
properly cultivated
4.4.3 To renew and replace from time to time all Landlord's fixtures
fittings and appurtenances in the Demised Premises which may
become or be beyond repair at any time during or at the
expiration or sooner determination of the term
4.5 Decoration
4.5.1 Upon every fifth year of the term and in the last year of the
term (howsoever determined) to prepare and paint in a proper
and workmanlike manner all the inside wood metal and other
parts
15
heretofore or usually painted of the Demised Premises with a
sufficient number of coats of suitable good quality paint and
also with every such internal painting to clean decorate and
treat in a proper and workmanlike manner all such internal
parts of the Demised Premises that have been or ought properly
to be so cleaned decorated and treated
4.5.2 In every third year of the term and in the last three months
of the term (howsoever determined) in a proper and workmanlike
manner to clean all the outside surfaces of the Demised
Premises and thereafter prepare and paint all outside surfaces
usually painted with three coats of good quality paint to the
reasonable satisfaction of the Landlord.
4.5.3 In the last year of the term (howsoever determined) such
inside painting and decoration shall be in such colours
patterns and materials as may be approved by the Landlord
(such approval not to be unreasonably withheld)
4.6 Expenses of Things used in common
From time to time to pay on demand a fair proportion (to be
conclusively determined by the Surveyor) of the expenses payable in
respect of repairing renewing cleansing and lighting as appropriate
all roofs walls fences service media drains roads car parks and hard
standings and other things the use or benefit of which is common to
the Demised Premises and other Premises
4.7 Yield Up
At the expiration or sooner determination of the Term quietly to
yield up to the Landlord the Demised Premises duly painted repaired
cleaned maintained amended and kept in accordance with the covenants
in this Lease (provided) however that
4.7.1 The Tenant may prior to the date of such expiration or
determination remove all Tenant's or trade fixtures (the
Tenant making good nevertheless at the expense of the Tenant
and to the reasonable satisfaction of the Landlord any damage
to the Demised Premises caused by such removal) and shall
remove all the Tenant's furniture
16
fittings papers and refuse and so that the Landlord may treat
as abandoned by the Tenant and may arrange for the removal and
destruction of any such fixtures and any other items not
removed by the Tenant within seven days of the said expiration
or determination and the proper cost of such removal and
destruction shall be paid by the Tenant to the Landlord on
demand and
4.7.2 If the Tenant shall fail to leave the Demised Premises in such
condition as aforesaid then and in such case the Landlord may
do or effect all such repairs renovations and decorations for
which the Tenant shall be liable hereunder and the proper cost
thereof shall be paid by the Tenant to the Landlord on demand
and the certificate of the Landlord's Surveyor certifying the
proper cost to the Landlord shall be final and binding on the
Tenant save in the case of manifest error and the Tenant will
also pay to the Landlord mesne profits at the rate of the
rents payable hereunder immediately prior to the said
expiration or determination during the period reasonably
required for the carrying out of such work and the amount of
such mesne profits shall be added to the cost of carrying out
such work as aforesaid
4.8 Statutory Obligations
4.8.1 To observe and comply with the provisions and requirements of
every enactment (which expression in this covenant includes
every act of Parliament already or hereafter to be passed and
every order regulation and bye law already or hereafter to be
made under or in pursuance of any such act and all legislation
whether primary or derivative emanating from all legally
binding decisions of any institution or body of the European
Community already or hereafter to be made and without
prejudice to the generality of the foregoing specifically
includes the Factories Acts the Offices Shops and Railway
Premises Act 1963 the Fire Precaution Xxx 0000 The Health and
Safety at Work Act 1974) so far as they relate to or effect
the Demised Premises or the use thereof
4.8.2 To maintain all arrangements which by or under any enactment
or bye law are or may be required at any time during the
currency of
17
this Lease to be executed provided or maintained whether by
the Landlord or the Tenant
4.8.3 To indemnify the Landlord at all times against all costs
charges and expenses of or incidental to the execution of any
works or the provision or maintenance of any arrangements so
required as aforesaid
4.8.4 Not at any time during the Term to do or omit or suffer to be
done or omitted in or about the Demised Premises any act or
thing by reason of which the Landlord may under any enactment
incur or have imposed upon it or become liable to pay any
penalty damages compensation costs charges or expenses.
4.9 Defective Premises Xxx 0000
4.9.1 Forthwith upon becoming aware of the same to give notice in
writing to the Landlord of any defect in the state of the
Demised Premises which would or might give rise to an
obligation on the Landlord to do or refrain from doing any act
or thing in order to comply with the duty of care imposed on
the Landlord pursuant to the Defective Premises Xxx 0000
4.9.2 To indemnify and keep indemnified the Landlord for and against
any actions proceedings damages penalties costs charges claims
demands expenses or loss arising from a failure to give such
notice
4.9.3 At all times to display and maintain such notices as the
Landlord may require from time to time to display or require
to be displayed on or in the Demised Premises pursuant to the
Defective Premises Xxx 0000
4.10 Planning Acts
4.10.1 To comply in all respects during the currency of this Lease
with the provisions and requirements of the Planning Acts so
far as the same respectively relate to or affect the Demised
Premises or any part
18
thereof or any operations works acts or things already or
hereafter to be carried out executed done or omitted thereon
or the use thereof for any purpose
4.10.2 To pay any development charge or other charge imposed in
respect of any such matter
4.10.3 To indemnify the Landlord against all proceedings expenses
claims and demands in respect of any contravention by the
Tenant of any provisions of the said Acts
4.11 Copies of Notices
4.11.1 Within seven days of the receipt by the Tenant of the same to
supply a copy to the Landlord of any notice or order or
proposal for a notice or order or licence consent permission
or directions given or made under any enactment and any
regulations orders and instruments made thereunder and
relating to the Demised Premises
4.11.2 To permit the Landlord and all persons authorised by it all
reasonable times to enter upon the Demised Premises to inspect
the same for any purpose in connection with any such notice
order proposal licence consent permission or direction
PROVIDED THAT the person exercising such right shall cause the
minimum of inconvenience and disturbance to the Tenant and
make good any damage caused within a reasonable period of time
4.11.3 If any such notice requires the execution of any works which
the Tenant fails to effect within the time specified by the
notice or any extension thereof the Landlord may enter upon
the Demised Premises and execute such works and all its
expenses in so doing shall on the completion of the said works
be a debt of the Tenant due on demand by the Landlord and if
not so repaid shall be recoverable by the Landlord as rent in
arrear.
4.12 Join with the Landlord in making Appeals etc.
At the request of the Landlord to make or join with the Landlord in
making
19
any objection representation or appeal in respect of any such notice
order proposal or direction as aforesaid or any refusal of or
condition imposed under any such licence consent or permission as
aforesaid
4.13 No Application for Planning Permission
Not to make or suffer to be made any application for consent or
permission to carry out or commence any development (within the
meaning of the Planning Acts) on or by reference to the Demised
Premises without the Landlord's written consent first obtained (such
consent not to be unreasonably withheld)
4.14 Complete developments within Term
Unless the Landlord shall otherwise direct to carry out before the
determination of the Term (however terminated) any work of (the
carrying out of which is otherwise permitted hereunder) required to
be carried out in
or on the Demised Premises by a date subsequent to such
determination as a condition of any planning permission which may
have been granted to the Tenant during the Term
4.15 Purchase Notice
Not to serve any purchase notice under the Planning Acts requiring
any local authority to purchase the Tenant's interest in the Demised
Premises or any part thereof
4.16 Compensation
If the Tenant shall receive any compensation because of any
restriction placed upon the user of the Demised Premises or any part
thereof under or by virtue of the Planning Acts then if and when its
interest hereunder shall be determined under the power of re-entry
herein contained or otherwise forthwith to make such provision as is
just and equitable for the Landlord to receive its due benefit from
such compensation unless the compensation authority shall otherwise
order
4.17 Entry for Repairs
4.17.1 To permit the Landlord the Surveyor and any person authorised
by
20
the Landlord by prior appointment (except in emergency) to
enter upon the Demised Premises at all reasonable hours during
the daytime to view the state and condition and user of the
same and the fixtures and fittings therein and of all defects
decays and wants of reparation there found for which the
Tenant shall be responsible hereunder to give Notice in
writing to the Tenant
4.17.2 Within the two months after every such notice as aforesaid
(or immediately in case of emergency) to repair well and
substantially and make good all such defects decays and wants
of reparation to the Demised Premise and the fixtures and
fittings therein for which the Tenant is liable hereunder
4.17.3 If the Tenant shall make default in the execution of the
repairs and works referred to in such notice it shall be
lawful for the Landlord any persons authorised by the Landlord
(but without prejudice to the right or re-entry hereinafter
contained) to enter upon the Demised Premises and execute such
repairs and works and other fees properly incurred shall be
repaid by way of further rent by the Tenant to the Landlord on
demand
4.18 Entry for other purposes
To permit the Landlord the Surveyor and all other persons authorised
by the Landlord with all necessary workmen and appliances at all
reasonable times to enter and remain upon the Demised Premises for
the following purposes:-
4.18.1 Works to Adjoining Premises
to inspect and to execute repairs or alterations to any
adjoining premises and any Service Media therein all damage to
the Demised Premises thereby occasioned being made good by the
Landlord or other person so entering
4.18.2 Rent Reviews and Renewals
to inspect and measure the Demised Premises for all purposes
connected with any pending or intended step under Part II of
the Landlord and Xxxxxx Xxx 0000 or the implementation of the
Provisions for rent review and so that the Tenant covenants to
furnish such information relevant for such purposes as may be
reasonably be requested in writing by the Landlord or any such
person having a
21
right of entry under this sub-clause
4.18.3 Taking inventories
to take schedules or inventories of fixtures and fittings and
things to be yielded up at the determination of the Term
4.18.4 Let or Sale Boards and Viewing
to affix and retain without interference upon some part or
parts thereof (but not so as to obstruct the access or light
or air to the Demised Premises) notice for reletting or
selling the same and (in the case of prospective purchasers or
lessees and their agents) to view the Demised Premises
PROVIDED THAT in the exercise of any rights granted or
reserved in this clause 4.18 the persons exercising such
rights shall do so in a reasonable manner and so as to cause
the minimum of inconvenience and disturbance to the Tenant and
further shall make good any damage caused without delay
4.19 Alterations
4.19.1 Not at any time during the Term without the previous consent
in writing of the Landlord which consent shall not be
unreasonably withheld or delayed and except in accordance with
plans elevations sections and specifications previously
submitted to and approved by the Landlord (who shall be
supplied with and be entitled to retain copies thereof) to
make or permit or suffer to be made any change alteration or
addition whatsoever in or to the Demised Premises or to the
fixtures and fittings therein (save that non-structural
internal alterations will be permitted without the Landlord's
prior written consent) or on any part thereof or cut or maim
to injure or suffer to be cut maimed or injured any of the
walls timbers girders pillars ceilings roofs floors or other
structural parts thereof or make or permit or suffer to be
made any flue duct or excavation upon the Demised Premises
4.19.2 In the event of a breach of the preceding condition then in
addition
22
to any other rights and power available the Landlord shall be
at liberty to remove restore or fill up (as the case may be)
all such unauthorised changes alterations flues ducts or
excavations as may then and there be found and the properly
incurred cost of carrying out such work (including any
surveyors' or other fees incurred) shall be repaid by the
Tenant to the Landlord forthwith on demand
4.19.3 Without prejudice to any other covenant on the part of the
Tenant hereinbefore contained and notwithstanding the granting
by the Landlord of any licence permitting the Tenant to carry
out or make any alteration or addition to the Demised Premises
or any change of user thereof not to carry out or make any
such alteration or addition or change of user where planing
permission is required therefor without first obtaining and
producing to the Landlord without first obtaining and
producing to the Landlord a copy of any and every requisite
planning permission and building regulation and other consent
4.20 Advertisements
4.20.1 Other than a suitable sign showing the Tenant's trading name
and business of a size and kind and position first approved by
the Landlord not to be exhibited affixed to or displayed on or
from he exterior of the Demised Premises or of the external
walls rails or fences any sign signboard facia placard
lettering notice price label blind flag pennant sky-sign or
any advertisement of any kind whatsoever except such as shall
have been previously approved by the Landlord (such approval
not to be unreasonably withheld or delayed)
4.20.2 In the event of any such approval being given to observe any
reasonable terms thereof
4.20.3 At the expiry or sooner determination if the Term to remove
every such thing so approved and make good the Demised
Premises
4.21 Encroachments etc
23
4.21.1 Not to stop up or darken or obstruct any windows or other
openings belonging to the Demised Premises nor to permit any
encroachment or easement to be made or acquired on or over the
Demised Premises
4.21.2 In case any encroachment or easement shall be made or
acquired or attempted to be made or acquired to give immediate
notice upon becoming aware thereof to the Landlord and at the
request and cost of the Landlord to adopt such means as may be
reasonably required or deemed proper for preventing any such
encroachment or the acquisition of any such easement
4.22 User
4.22.1 To use and occupy the Demised Premises for the Permitted Use
or for such other purposes as the Landlord may from time to
time permit such permission not to be unreasonably withheld or
delayed
4.22.2 Not to use the Demised Premises or any part thereof for
residential or sleeping purposes
4.22.3 Not to allow any sale by auction to be held on the Demised
Premises
4.22.4 Nothing herein shall preclude the Landlord from letting any
adjoining or neighbouring floor for a use which may be in
competition with the Permitted Use in whole or in part
4.22.5 Not to use the Demised Premises for storage or storage
purposes save so far is normal and necessary in the Tenants
business
4.23 Indemnity as to rating relief
4.23.1 To keep the Landlord indemnified against any loss by the
Landlord of any statutory rating relief which may be
applicable to void premises and which would otherwise have
been available to the Landlord to the extent that such loss
shall be occasioned by the claiming of such relief by the
Tenant prior to the determination (in
24
whatsoever manner) of the Term
4.24 Nuisance
4.24.1 Not to do in or upon the Demised Premises or any part thereof
any act or thing which may be or become or cause a nuisance or
source of annoyance inconvenience damage or injury to any
adjoining or neighbouring property or to the Landlord the
public local or any other authority nor so as to interfere
with the quiet and comfort of any other occupiers of the
premises (if any) of which the Demised Premises form part
4.24.2 From time to time to pay all costs charges and expenses
incurred by the Landlord in abating a nuisance in obedience to
a notice served by any relevant authority
4.24.3 Not to cause any obstruction to the free use by others of any
road path pavement car park hard-standing or other thing the
use of which is common to the occupiers of or the visitors to
the Demised Premises and other premises.
4.25 Removal of Rubbish
To remove promptly from the Demised Premises all rubbish and refuse
accumulated thereon from time to time and not to burn or permit the
burning thereof on the Demised Premises
4.26 Alienation
4.26.1 Not to assign charge underlet or part of the whole of the
Demised Premises save as hereinafter expressly permitted.
4.26.2 Not (without the prior consent of the Landlord such consent
not to be unreasonably withheld or delayed) to assign the
whole of the Demised Premises except to a person (hereinafter
referred to as "the Permitted Assignee") who shall have
previously to the assignment entered into a direct covenant
with the Landlord that during the residue of the Term then
subsisting or until released pursuant to
25
Section 5 of the Landlord and Tenant (Covenants) Xxx 0000 to
pay the rent reserved by and observe and perform the covenants
and conditions contained in this Lease provided that the
Tenant will (if reasonably so required by the Lessor) enter
into an authorised guarantee agreement within Section 16 of
the Landlord and Tenant (Covenants) Xxx 0000 in a form
reasonably required by the Landlord provided further that if
the Permitted Assignee is a private limited company it shall
if reasonably required before any assignment and before taking
occupation procure that directors (but not more than two)
covenant by way of indemnity guarantee (and if more than one
jointly and severally) with the Landlord in a form reasonably
required by the Landlord
4.26.3 Not to underlet the whole of the Demised Premises without the
prior written consent of the Landlord such consent not to be
unreasonably withheld or delayed in the case of a responsible
and respectable Tenant and in any event not at a rental less
than the open market rent and with rent reviews to be in the
form of those contained in this Lease at five yearly intervals
4.26.4 Without prejudice to the foregoing sub-clause (c) of this
Clause not to underlet the whole of the Demised Premises
except:-
(i) by an underlease or tenancy agreement (hereinafter
referred to as a "Permitted Underlease") which shall
contain on the part of the Underlessee (inter alia) the
Stipulated Covenants hereinafter mentioned and if
reasonably required in the event of a Permitted
Underlessee being a private limited company the Lessee
shall not underlet the whole of the Demised Premises
unless directors of such company (but no more than two)
have if required previously entered into such a direct
covenant with the Landlord to secure the observance of
such covenant by the company
(ii) to a person (hereinafter referred to as a "Permitted
Underlessee") who shall have previously to the execution
of
26
the Permitted Underlease entered into direct covenants
(in this sub-clause called "the Stipulated Covenants")
with the Landlord to observe and perform the covenants
and conditions in this Deed and on the part of the
Tenant to be observed and performed but excluding the
covenants to pay the rents reserved by this Deed
4.26.5 Not to part with or share possession of the Demised Premises
or any part thereof except by virtue of an assignment or
underletting of a kind permitted by this sub-clause PROVIDED
THAT notwithstanding the provisions of this clause 4.26 the
Tenant may allow to a company that is a member of the same
group as the Tenant to occupy the whole or part of the Demised
Premises otherwise premises than in a manner which transfers
or creates a legal estate
4.26.6 Not at any time either expressly or by implication to
knowingly waive any breach of any of the covenants or
conditions on the part of any Permitted Underlessee comprised
in any Permitted Underlease but if reasonably requested by the
Landlord on any such breach to re-enter on the premises
comprised in such Permitted Underlease and otherwise to take
reasonable steps to enforce such covenants and conditions
4.26.7 To produce a certified copy of every assignment transfer
mortgage charge underlease Probate Letters of Administration
order instrument or other writing effecting or evidencing any
transmission or devolution of any estate of interest
(derivative or otherwise) in the Demised Premises or any part
thereof to the Solicitors of the Landlord for registration
within one month from the date thereof and to pay to the
Landlord's solicitors a fee of Forty Pounds (f40.OO) plus
Value Added Tax thereon for each such registration
PROVIDED ALWAYS that every Licence to assign shall contain (I)
a covenant by the assignee directly with the Landlord to
observe and perform the covenants herein contained including
this sub-clause and to pay the rents hereby reserved during
the residue of the Term
27
4.27 The Tenant may charge the whole of the Demises Premises with the
prior consent of the Landlord (such consent not to be unreasonably
withheld or delayed)
4.28 Notification of occupiers etc.
4.28.1 WITHIN one month of a demand from or on behalf of the
Landlord to notify the Landlord in writing:
4.28.1.1 of the persons in actual occupation or possession of
the Demised Premises and each and every part thereof and
of the right in which they are in such occupation or
possession
4.28.1.2 of all persons having an interest in the Demised
Premises (other than in reversion to the Term)
4.28.1.3 of the terms of all underleases licences or
devolutions affecting the Demised Premises
4.28.2 Upon demand to supply to the Landlord a copy of any
underlease licence Court Order or other document affecting the
Demised Premises or any part thereof
4.29 Register Assignments etc.
Within one month after any Charge Mortgage Assignment or
underletting or sub underletting of the Demised Premises or any
devolution of any interest thereon to give notice thereof in writing
to the Landlord or its solicitors and to procure to them a copy
certified by a practising solicitor of the assignment transfer
counterpart underlease sub underlease or other instrument under
which such devolution shall have occurred and pay a fee of
(pounds)40.00 (Plus Value Added Tax) for registration thereof by the
Landlords solicitors
4.30 Notice of Insolvency Matters.
Forthwith on becoming aware of the same to notify the Landlord in
writing of any of the following occurring in relation to the Tenant
or any surety for any of the Tenants obligations hereunder (in this
clause "the Act" refers to the
28
Insolvency Act 1986):-
4.30.1 a Petition for or the making of an Administration Order or
Winding Up Order an interim order (under Section 252 of the
Act) or a bankruptcy Order
4.30.2 The passing or proposed passing of a resolution for winding
up
4.30.3 The making or proposed making of a voluntary arrangement (as
defined in Section 253 of the Act) with creditors
4.30.4 A Petition for or the making of an order for dissolution
4.30.5 The appointment of a Receiver of Manager over the whole or
any part of its property
4.30.6 The levying of any execution at any of its property
4.31 Legal and Other Costs
To pay on demand on an indemnity basis the proper and reasonable
legal surveyors architects bailiffs and other proper fees incurred
by the Landlord in relation to or in proper contemplation of:-
4.31.1 All applications by the Tenant for any consent of the
Landlord required by this Lease and also all such fees
actually incurred by the Landlord in cases where consent is
reasonably refused or the Application is withdrawn and in
respect of any such application at the request of the
Landlord to provide security for such fees by way of a
solicitors undertaking.
4.31.2 The enforcement of any breach of any of the covenants on the
part of the Tenant and the conditions herein contained whether
during or after the termination of the term and the recovery
of arrears of rent due from the Tenant hereunder
4.31.3 The preparation and service of a notice under Section 146 of
the Law of Property Xxx 0000 requiring the Tenant to remedy a
breach of any
29
of the covenants herein contained (notwithstanding forfeiture
for such breach shall be avoided otherwise than by relief
granted by the Court)
4.31.4 The preparation of service of Schedules of dilapidations or
notice under the foregoing provisions of this clause during
the term or within one month following the determination
thereof
4.32 Floor Loading
Not to place or suspend any object of excessive weight on or from
the floors ceilings or walls of the Demised Premises nor without the
Landlord's previous written consent to set up or permit to be set up
on any part of the Demised Premises any steam gas or electric or
other boiler engine machine or mechanical contrivance other than
normal desk top office machinery
4.33 Fire Fighting Equipment
To keep the Demised Premises sufficiently supplied and equipped with
fire fighting and extinguishing apparatus and appliances which shall
be open to the inspection and maintained to the reasonable
satisfaction of the Landlord the local fire authority and the
Landlords insurers and also not to obstruct the access to or means
of working of such apparatus and appliances
4.34 To pay Gas Charges etc
To pay to the suppliers thereof all charges for:
4.34.1 gas electricity telephone and water (including apparatus and
meter rents if any) consumed in the Demised Premises during
the Term
4.34.2 Sewage and rubbish disposal and all other similar services in
respect of the Demised Premises
4.35 Value Added Tax ("VAT")
4.35.1 To pay to the Landlord (in addition to the rents and other
sums payable under this Lease) amounts equal to any non
recoverable value added tax at the rate for the time being in
force as shall be chargeable (whether or not as a result of
the exercise of any option
30
or the making of any election by the Landlord) in respect of
or by reference to or as a result of:
(a) Any rents and other consideration payable to the
Landlord under this Lease or
(b) Any supply made by the Landlord to the Tenant under the
terms of or in connection with this Lease
and the payments to be made by the Tenant hereunder if the
said Value Added Tax shall be chargeable in respect of or by
reference to the rents and other consideration so payable
under this Lease shall be made at the like times as such rents
and other consideration is payable following receipt of a
valid VAT invoice addressed to the Tenant but otherwise when
the supply which gives rise to the Charge to Value Added Tax
is treated as taking place for the purposes of Value Added Tax
and (for the avoidance of doubt) it is confirmed that where in
any part of this Lease (other than in this present
sub-sub-clause itself) or in the Schedules to this Lease the
Tenant agrees to pay an amount of money (or other
consideration) such amount (or other consideration) shall be
regarded as exclusive of any Value Added Tax which may from
time to time be chargeable with respect thereto or by
reference thereto or as a result of any supply made by the
Landlord to the Tenant under the terms of or in connection
with this lease.
4.35.2 (Without prejudice to the liability imposed on the Tenant
under the Terms of the immediately preceding sub-sub-clause)
where under this Lease the Tenant agrees to pay or contribute
to (or indemnify the Landlord or any other person in respect
of) any costs fees expenses outgoings or other liability of
whatsoever nature whether of the Landlord or any third party
reference to such costs fees expenses outgoings and other
liability shall (for the avoidance of doubt) be taken to
include reference to any value added tax charged in relation
thereto except to the extent and only to the extent the
Landlord obtains a credit for the same as allowable input tax
but such payment shall only be made following receipt of a
valid invoice
31
addressed to the Tenant.
4.35.3 Without prejudice to any statutory rights which the Landlord
has in this respect and notwithstanding anything contained in
this lease or otherwise, it is confirmed that the Landlord
reserves the right in its absolute discretion from time to
time to exercise or not as the case may be
(a) any option which results in Value Added Tax being
charged on any supply made by the Landlord or
(b) any election to waive exemption from Value Added Tax
with respect to any supply made by the Landlord
and nothing in this lease or otherwise shall create any
implication as to how the Landlord may exercise that
discretion from time to time
4.36 Indemnity for Landlord
4.36.1 To be responsible for and to keep the Landlord indemnified
against:-
4.36.1.1 all claims whatsoever which may be made by any
Tenants for the time being of the Demised Premises
holding of the Tenant under the Provisions of any
statute relating to Landlord and Tenants for the time
being in force
4.36.1.2 all damage occasioned to the Demised Premises or any
other part of the Building (if any) or any adjacent or
neighbouring premises or to any person caused by any act
default or negligence of the Tenant or the servants
agents licensees or invitees of the Tenant
4.36.2 To pay and make good to the Landlord all and every loss and
damage whatsoever properly incurred or sustained by the
Landlord as a consequence of such breach or non observance of
the Tenants
32
covenants herein contained and to indemnify the Landlord and
the Landlord's estate and effects from and against all actions
claims liability proper costs and expenses thereby arising
4.37 Glass Insurance
Forthwith to insure and keep insured against loss or damage by
accident all glass in the windows doors and partitions in the
Demised Premises to the full value thereof in a reputable insurance
office to be approved in writing by the Landlord (such approval not
to be unreasonably withheld) and whenever required to produce to the
Landlord the policy of such insurance and the receipt for the last
premium due in respect thereof and in case the said glass or any of
it shall be destroyed or damaged by accident then and as often as
the same shall happen all monies received in respect of such
insurance shall with all convenient speed be laid out in reinstating
the same with glass of the same nature quality and thickness as at
present and to make up any deficiency in such monies for that
purpose
4.38 Regulations
To observe perform and conform to all reasonable regulations
stipulations restrictions and conditions made by the Landlord for
the proper management of the Building and notified to the Tenant by
the Landlord in writing from time to time
5 LANDLORD'S COVENANTS
The Landlord HEREBY COVENANTS with the Tenant as follows:-
5.1 Quiet Enjoyment
To permit the Tenant peaceably and quietly to hold and enjoy the
Demised Premises for the term without any interruption by the
Landlord or any person lawfully claiming through under or in trust
for the Landlord
5.2 Insurance
5.2.1 To keep the Building of which the Demised Premises form part
insured (except as to glass for which provision is made in
Clause 4.36 hereof) with such insurance company as the
Landlord may from time to time decide the same however to be
one of repute and
33
having its principal place of business in the United Kingdom
against the insured risks in such minimum sum as the Landlord
shall from time to time reasonably deem to be adequate (or in
such greater insurable sum as the Tenant shall reasonably in
writing to the Landlord require) including provision for
clearance of debris and fees of architects and surveyors
consulting engineers and legal and other fees and also against
the loss of three years rent subject always to the provisions
and exclusions which the insurers may require.
5.2.2 To make all payments necessary for the above purposes when the
same shall respectively become due and to produce to the
Tenant on demand the policy or policies as such insurance and
the receipt for each such payment
5.2.3 At the request and cost of the Tenant to provide the Tenant
with a copy of such policy or policies or a specimen policy
containing the standard terms applicable thereto
5.2.4 In the event of the Demised Premises or any part thereof or
means of access thereto being destroyed or damaged by any of
the Insured Risks during the term forthwith (as soon as the
necessary labour materials and permits are obtained which the
Landlord shall take all reasonably practical steps to obtain
and subject as hereinafter provided) to lay out in or towards
repairing or reinstating the same in a good and substantial
manner to the reasonable satisfaction of the Tenant all monies
received under or by virtue of any such insurance (other than
monies received in respect of loss of rent) and to make up any
shortfall in the insurance monies received required to repair
and reinstate as aforemenioned from its own resources the
Tenant permitting entry on the Demised Premises for this
purpose by the Landlord its servants agents contractors
5.2.5 The Landlord shall have the right within twelve months of such
damage or destruction if the degree of damage or destruction
is such as reasonably to necessitate the demolition of the
whole or substantially the whole of the Demised Premises or of
the remaining parts of it to apply the said monies in such
other way as the Landlord
34
shall in its absolute discretion consider appropriate and in
the event of the Landlord electing to adopt the last mentioned
alternative and of its notifying the Tenant in writing
accordingly, the Tenant shall be entitled at any time within
the ensuing three months by notice in writing served upon the
Landlord in its behalf to determine the term hereby granted as
from the quarter day next following after the service by the
Tenant of such notice and upon the expiry of such notice this
Lease shall absolutely determine but without prejudice to any
right of action or remedy of the Landlord in respect of any
antecedent breach of any of the covenants on the part of the
Tenant herein contained and for the purposes of this sub
clause the Tenant further covenants with the Landlord not to
exercise the Tenant's right under Section 83 of the Fire's
Prevention (Metropolis) Xxx 0000 earlier than six months after
the happening of any such damage or destruction as aforesaid
5.2.6 In no event shall the Landlord be obliged to reinstate the
Demised Premises in identical form to that in which the
Demised Premises were immediately before the damage or
destruction in question PROVIDED THAT the Landlord shall use
reasonable endeavours to ensure that the reinstated Demised
Premises are of equivalent amenity layout appearance shape
size and use to the Tenant
5.2.7 Without prejudice to the preceding provision of this Clause if
the Landlord shall be prevented by any circumstance beyond the
reasonable control of the Landlord from repairing or
reinstating the Demised Premises in all money received in
respect of the insurance effected by the Landlord pursuant to
this Clause shall belong to the Landlord
5.2.8 To notify the insurers of the Tenant's interest in the Demised
Premises
5.3 Whenever the Demised Premises or any part or the means of access
thereto are damaged or destroyed by any of the Insured Risks and such
reinstatement or repair has not been completed so that the Demised Premises or
any part of the means of access thereto remains until at any time after the
expiry of three years after the date upon which it first became unfit then
either party
35
may serve a notice on the other party referring to this clause whereupon this
Lease will immediately come to an end and that without prejudice to any
antecedent rights of either party against the other
5.4 To Keep in Repair
At all times to keep the building and the appurtenances thereof
including the main structure roof and foundations but excluding such
parts thereof (if any) of the Demised Premises in good repair and
condition throughout the Term
6. ABATEMENT OF RENT
In case the Demised Premises or any part thereof shall at any time be
destroyed or so damaged by any of the insured risks as to be unfit for
occupation or use, then and in any such case (unless the insurance of the
Demised Premises shall have been vitiated by the Act Neglect Default or
Omission of the Tenant) the Rent and other payments hereby reserved or a
fair and just proportion thereof according to the nature and extent of the
damage sustained shall be suspended and seize to be payable until
whichever is the earlier of:-
(a) the date on which the Demised Premises shall again be fit for use
and occupation
(b) the expiration of three years from the date of occurrence of the
destruction or damage and
(c) the expiration of three months from the date of service by the
Landlord on the Tenant of the Notice of election as provided in
Sub-clause 5.2.5 hereof (provided that if in such period of three
months the Tenant shall have served a notice to terminate the term
in accordance with such sub-clause the period hereby provided for
shall be extended to the quarter day next following the service of
such Tenants notice)
and such proportion in case of disagreement shall be referred to a single
Arbitrator in accordance with and subject to the provisions of the
Arbitration Acts 1996.
7. RE-ENTRY
PROVIDED ALWAYS and it is hereby agreed and declared that if:-
36
7.1 The said rents hereby reserved or any part thereof shall at any time
be in arrear and unpaid for fourteen days after the same shall have
become due (whether (in the case of the rent firstly hereinbefore
reserved) any formal or legal demand therefore shall have been made
or not) or
7.2 There shall be any breach of any of the covenants conditions or
agreements herein contained and on the part of the Tenant to be
performed and observed or
7.3 The Tenant or other person or persons in whom for the time being the
term shall be vested or any of them or any person who shall from
time to time be a surety (either alone or jointly with any other
person or persons) to the Landlord for the performance of any of the
obligations of the Tenant hereunder
7.3.1 shall (being an individual)
7.3.1.1 be the subject of an interim order under Section 252
of the Insolvency Act 1986 (in this clause referred to
as "the Act")
7.3.1.2 become bankrupt
7.3.1.3 make a voluntary arrangement (as defined in Section
253 of the Act) with creditors or
7.3.1.4 suffer any execution to be levied at the Demised
Premises or
7.3.2 shall (being a company)
7.3.2.1 enter into liquidation whether compulsory or voluntary
(not being merely a voluntary liquidation for the
purpose of amalgamation or reconstruction of a solvent
company)
7.3.2.2 have an administration order made in respect of it
7.3.2.3 make a voluntary arrangement (defined as aforesaid)
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7.3.2.4 have a receiver or manager appointed over the whole or
any part of its property or
7.3.2.5 suffer any execution to be levied at the Demised
Premises then and in such case it shall be lawful for
the Landlord or any person or persons duly authorised by
the Landlord in that behalf into or upon the Demised
Premises or any part thereof in the name of the whole to
re enter the Demised Premises peaceably and to hold and
enjoy thenceforth as if these presents had not been made
without prejudice to any right of action or remedy of
either party against the other in respect of any
antecedent breach of any covenant or condition herein
contained
8. NOTICES
Any Notice required to be given or served under these presents and not
otherwise provided for shall be served or deemed to be served on the
Tenant if served in accordance with Section 196 of the Law of Property Xxx
0000
9. LANDLORDS DEVELOPMENT
It is hereby agreed that:-
9.1 Nothing herein contained or implied shall impose or be deemed to
impose any restriction on the use of any Land or building not
comprised in this lease or give the Tenant the benefit of or the
right to enforce or to have enforced or to permit the release or
modification of any covenant agreement or conditions entered into by
any Purchaser from or by any Lessee or occupier of the Landlord in
respect of property not comprised in this Lease or to prevent or
restrict in any way the development of any land not comprised in
this lease or give the Tenant the benefit of or the right to enforce
or to have enforced or to permit the release or modification of any
covenant agreement or conditions entered into by any Purchaser from
or by any Lessee or occupier of the Landlord in respect of property
not comprised in this Lease or to prevent or restrict in any way the
development of any land not comprised in this lease
38
9.2 Nothing herein contained shall by implication of law or otherwise
operate or be deemed to confer upon the Tenant any easement right or
privilege whatsoever over or against any adjoining or neighbouring
property which now does or hereafter shall belong to the Landlord
which would or might restrict or prejudiciously effect the future
rebuilding alteration or development of such adjoining or
neighbouring property PROVIDED THAT nothing herein contained shall
permit or be deemed to permit the Landlord by any such rebuilding
alteration or development to alter extinguish or diminish any
easement right or privilege granted by this Lease
9.3 The landlord shall have the right at any time to make such
alterations to or to pull down and rebuild or redevelop any such
adjoining or neighbouring property as it may deem fit without
obtaining any consent from or making any compensation to the Tenant
10. PARTY WALLS
Each and every wall separating the Demised Premises from any adjoining
premises shall in the absence of evidence to the contrary be deemed to be
a party wall severed medially
11. STATUTORY COMPENSATION
Except where any statutory provision prohibits the Tenants right to
compensation being reduced or excluded by agreement a Tenant shall not be
entitled to claim from the Landlord on quitting the Demised Premises or
any part thereof any statutory compensation
12. EXCLUSION OF WARRANTY AND IMPLIED COVENANTS
Neither the granting of this Lease nor any provision herein contained
shall operate or be construed
(a) as warranting that the use to which the Tenant proposes now or
hereafter to put the Demised Premises or any use to which (whether
subject to conditions or not) the Tenant's may be at liberty or may
be required under the provisions of this Lease to put the Demised
Premises is or may be or become legally permitted whether under the
provisions of the Planning Acts or otherwise or
39
(b) so as to imply any repairing obligation on the part of the Landlord
except in so far as such obligation is specifically provided for
herein
13. BREAKDOWN OF SERVICE
The Landlord shall not be liable to the Tenant or any other person for any
loss damage or inconvenience which may be caused by reason of the failure
stoppage leakage bursting or defect of any hot or cold water sanitary or
other apparatus or of soil gas water electricity or by reason of the
breakdown or defect of any plants or machinery in the said building or any
neighbouring or adjoining building or the failure to cleanse repair or
light any part of the said building the use of which is granted in common
with others or in respect of any accident loss or damage occurring or
resulting to the Tenant or to the Tenants servants workpeople agents
invitees and licensees in or about the building howsoever caused PROVIDED
THAT the Landlord shall take all practical steps to minimise any such
breakdowns or defects failure stoppages leakages or bursting as aforesaid
14. TENANT'S OPTION TO BREAK
Provided there are no arrears of Rent the Tenant may determine this Lease on the
expiration of the fifth year of the term by giving to the Landlord not less than
six months prior written notice and on expiry of such notice the term shall
cease and determine but without prejudice to any rights or remedies that may
have accrue to either party to this Lease.
15. GUARANTOR'S PROVISIONS
15.1. The parties agree and declare as follows:
(a) where a Guarantor is a party to the Lease the Guarantor
covenants with the Landlord as set out in this Clause;
(b) where a surety for an assignee is required such surety shall
covenant with the Landlord as if it were the Guarantor under
the Lease except that the guarantee will take effect only from
the date of the relevant assignment and extend only to the
obligations of the assignee and its successors in title;
40
(c) where a surety for an undertenant is required such surety
shall covenant with the Landlord as if it were the Guarantor
under the Lease except that the guarantee will extend only to
the obligations of the undertenant and its successors in title
under the underlease and the provisions relating to disclaimer
of the Lease will not apply.
15.2. GUARANTOR'S COVENANT
(a) The Guarantor covenants with the Landlord (for the benefit of
the Landlord and of the person in whom from time to time the
reversion immediately expectant upon the Determination of the
Term is vested without the need for any express assignment)
that during the first five years of the Term the Tenant shall
punctually pay the Rent in accordance with the terms of the
Lease and observe and perform the covenants and other
provisions of the Lease and in case of default by the Tenant
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 proper losses damages costs and
expenses thereby arising or incurred by the Landlord
(b) The liability of the Guarantor under clause 44.1 shall not be
affected in any way:
(i) any neglect or forbearance of the Landlord in enforcing
payment of Rent or observance or performance of the
covenants and provisions of the Lease
(ii) any time or indulgence given to the Tenant by the
Landlord
(iii) any reasonable refusal by the Landlord to accept Rent
from the Tenant following a breach of covenant by the
Tenant any agreement with the Tenant any licence or
consent granted to the Tenant or any variation in the
terms of the Lease
(iv) the death of the Tenant (if an individual) or the
dissolution of the Tenant (if a company)
(v) a surrender of part of the Premises except that the
Guarantor will have no
41
liability in relation to the surrendered part in respect of
any period following date of surrender
(vi) any other act or thing apart from the express release in
writing of the Guarantor
(c) if during the first five years of the Term the Tenant (being a
company) enters into liquidation or (being an individual) becomes
bankrupt and the liquidator or the trustee in bankruptcy disclaims
the Lease the Guarantor shall upon written notice from the Landlord
give within three months after the date of disclaimer accept a new
lease of the Premises for a term equal to the residue then remaining
unexpired of the Agreed Term at the Rent then being paid under the
Lease and otherwise subject to the same covenants and provisions as
in the Lease including any ability for the Tenant to determine the
Lease (without however requiring any other person to act as
guarantor) such new lease to take effect from the date of disclaimer
and to be granted at the proper cost of the Guarantor who shall
execute and deliver to the Landlord a counterpart of it.
(d) if the Lease is disclaimed during the first five years of the Term
and for any reason the Landlord does not require the Guarantor to
accept a new lease pursuant to clause 44.3. the Guarantor shall pay
to the Landlord on demand an amount equal to the difference between
any money received by the Landlord for the use or occupation of the
Premises and the Rent (if higher) which would have been payable had
the Lease not been disclaimed for the period commencing with the
date of disclaimer and ending upon the date three months after the
date of disclaimer or (if earlier) the date upon which the Premises
are relet
IN WITNESS WHEREOF this Deed has been executed the day and year first
above written
42
THE FIRST SCHEDULE
(RIGHTS AND PRIVILEGES)
1. The right to support and shelter and all other easements and
rights now or hereafter belonging to or enjoyed by the Demised
Premises by from over under or through any adjacent or
neighbouring land or buildings of the Landlord
2. A right of way at all times to and from the Demised Premises
through the area hatched blue on the Plan annexed hereto
3. A right to use the storage of dustbins the area coloured grey
on the said Plan B
4. A right to connect into and use all service media now or
hereafter constructed so as to be able to serve the Demised
Premises
THE SECOND SCHEDULE
(EXCEPTIONS AND RESERVATIONS)
1. The Right to connect up to and use all service media now or
hereafter construed upon through or under the Demised Premises
2. The Right to enter (or in cases of emergency to break and
enter) the Demised Premises in all cases in which the Tenant
has covenanted herein to permit entry subject to the
conditions of such rights herein contained
3. All rights of light air and other easements and rights now or
hereafter belonging to or enjoyed by the Demised Premises from
or over any adjacent or neighbouring land or building
4. The Right to build or rebuild or alter or repair the Building
(other than the Demised Premises) or any adjacent or
neighbouring land or
43
building in any manner whatsoever and to let the same for any purpose or
otherwise deal therewith
5. The Right to erect scaffolding outside the Demised Premises (whether or
not attached to the Demised Premises) to enable the Landlord and any
person authorised by the Landlord to exercise any right or comply with any
obligation hereunder PROVIDED THAT such scaffolding does not restrict the
access to or use and enjoyment of the Demised Premises
6. The Right to support and shelter and all other easements and rights now or
hereafter belonging to or enjoyed by all adjacent or neighbouring land or
buildings an interest wherein in possession or reversion is at any time
during the term vested in the Landlord
SIGNED AS A DEED by )
ABILITY DEVELOPMENTS LTD) )
Acting by its Director and )
Secretary )
/s/ [ILLEGIBLE]
----------------------------------- Director
/s/ [ILLEGIBLE]
----------------------------------- Secretary
44
