DATED 11 March 1993
BANTRY INVESTMENTS LIMITED
-and-
XXXX XXXXX ASSOCIATES LIMITED
--------------------
COUNTERPART
LEASE
of Part Xxxxxx Xxxxx, 000/000 Xxxxxx Xxxxxx
Xxxxxx Xxxx, Xxxxxx XX0
--------------------
Reid Minty
00 Xxxxxxx Xxxxx
Xxxxxx
XXX 0XX
T H I S L E A S E is made the eleventh day of March 1993 B E T W E E N
BANTRY INVESTMENTS LIMITED a Company registered in Gibraltar whose registered
office is at Librairy Ramp XX XXX 000 Gibraltar and whose address in the
United Kingdom is c/o Fox Associates 0 Xxxxxx Xxxxxx Xxxxxx XX0 OER
(hereinafter called "the Landlord") of the one part and XXXX XXXXX ASSOCIATES
LIMITED a Company registered in England and having its registered office at
000 Xxxxxx Xxxxxx Xxxxxx XX0 XXX (hereinafter called the Tenant") of the
other part
W I T N E S S E T H as follows:
1. PARTICULARS AND INTERPRETATION IN THIS LEASE
1.1 The expression "the Landlord" shall where the context so admits include
the person for the time being entitled to the reversion immediately
expectant on the determination of the term hereby created;
1.2 The expression "the Tenant" shall where the context so admits include
its successors in title and permitted assign;
1.3 Words importing the neuter gender include the masculine and feminine
genders;
1.4 Words importing the singular number only include the plural number and
vice versa and where there are two or more persons included in the
expressions "the Tenant" "and the Guarantor" respectively covenants
expressed to be made by the Tenant and the Guarantor respectively
shall be deemed to be made by such persons jointly and severally;
1.5 The expression "Superior Landlord" shall mean any Landlord (other than
the Landlord) holding an estate or interest in reversion on the Premises
or on the said term whether immediate to the Landlord or otherwise;
1.6 Such of the division walls as divide the Premises from other premises of
the Landlord shall he deemed to be party walls or fences and to belong
in equal moieties (considered as divided vertically down the middle
throughout the whole length) to the property on either side thereof
1.7 The expression "the Previous Lease" means the Lease of premises situated
on the basement First and Second Floors of the building known as 000/000
Xxxxxx Xxxxxx Xxxxxx Xxxx Xxxxxx XX0 dated the 23rd day of October 1990
and made between the Landlord (1) and the Tenant (2) for a term of
twenty five years from the 23rd day of October 1990
2. DEMISE AND RENTS
IN consideration of the rents and the Tenant's covenants hereinafter reserved
and contained the Landlord HEREBY DEMISES unto the Tenant ALL THOSE the premises
("the Premises") being part Ground Floor of the building situate and known as
000/000 Xxxxxx Xxxxxx Xxxxxx Xxxx Xxxxxx XX0 ("the Building") as the same is
shown edged red on the plan ("the Plan") annexed hereto and includes:
(i) all doors and windows and window and door frames and the glass
(including any plate glass) fitted therein (but excluding the paintwork
and decoration of the external surfaces of such doors windows and window
frames):
(ii) on half (several vertically) of all non-structural partitions
separating the Premises from any other part of the Building;
(iii) all other internal non-structural partitions;
(iv) The ceilings and floors;
(v) the plaster or other finish on all structural walls and ceilings within
the Premises;
(vi) all pipes and sanitary and water apparatus which are within the
Premises and serve the Premises alone
but excludes:
(i) the main structure of the Building including (but not by way of
limitation) the roof and the roof joists above the ceilings of premises
in the Building the foundations and the exterior and the load bearing
columns and walls the main beams decks or girders supporting the floors
of the Building of any premises comprised within the Building ("the
Main Structure");
(ii) any pipes and other service conduits in the Premises which serve any
other part of the Building.
TOGETHER with the easements and rights set out in Part 1 of the First
Schedule hereto but except and reserving from the demise in favour of the
Landlord and the tenants and occupiers of other portions of the Building of
which the Premises form part and other persons entitled thereto the easements
and rights set out in Part 2 of the First Schedule hereof TO HOLD unto the
Tenant for a term of twenty five years from (and including) the 23rd day of
October 1990 and expiring on the 22nd day of October 2015 ("the Term")
subject to the restrictive covenants conditions stipulations exceptions
reservations easements and other matters referred to or contained in the
Entries on the Register at H M Land Registry of the Landlord's Title Number
XXX000000 YIELDING AND PAYING therefor unto the Landlord yearly during the
Term and so in proportion for any less time than a year the respective rents
following (that is to say):
FIRST from the commencement date of the Term until the 2nd day of September
1993 the rent of a peppercorn (if demanded)
And thereafter from (and including) the third day of September 1993 until the
22nd day of April 1994 the exclusive yearly rent of FORTY ONE THOUSAND SEVEN
HUNDRED AND SIXTY POUNDS (L41,760.00)
And thereafter from (and including) the 23rd day of April 1994 until 22nd day
April 1995 the exclusive yearly rent of FORTY SIX THOUSAND AND EIGHTY POUNDS
(L46,080.00) and thereafter from (and including) the 23rd day of April 1995
until the 22nd day of October 1995 the exclusive yearly rent of FIFTY
THOUSAND FOUR HUNDRED POUNDS (L50,400.00)
And thereafter for the next five years of the Term ("the second period")
either the yearly rent reserved above or the market rent (as hereinafter
defined) of the Premises at the commencement of the said period whichever is
the higher.
And thereafter for the next five years of the Term ("the third period")
either the yearly rent reserved above and payable immediately prior to the
commencement of the third period or the market rent (as hereinafter defined)
of the Premises at the commencement of the said period whichever is the higher
And thereafter for the next five years of the Term ("the fourth period")
either the yearly rent reserved above and payable immediately prior to the
commencement of the fourth period or the market rent (as hereinafter defined)
of the Premises at the commencement of the said period whichever is the higher
And thereafter for the last five years for the Term ("the last period")
either the yearly rent reserved above and payable immediately prior to the
commencement of the last period or the market rent (as hereinafter defined)
of the premises at the commencement of the said period whichever is the higher
the said rents in all cases to be paid without any deduction (except for tax
authorised by statutory to be deducted) by equal quarterly payments in
advance on the usual quarter days in every year ("the Rent Payment Days") and
the Tenant shall give to the Bankers for the time being of the Landlord (as
nominated from time to time in writing by the Landlord to the Tenant) a
standing order directing such quarterly payments to be made on the due dates
at the Bankers of the Landlords the first of such rent payments to be a
proportionate part for the period from the date ("the first Rent Payment
Date") hereof to the date one day before the next Rent Payment date and shall
be made on the execution hereof
SECONDLY by way of further or additional rent an amount equal to a fair
proportion (to be determined failing agreement by the Landlord's Surveyor
whose determination shall be final and binding on the parties hereto save in
case of manifest error) of the yearly sum or sums properly expended by or
demanded of the Landlord in insuring the Building and the Landlord's fixtures
and fittings therein against loss or damage by fire explosion lightning
impact vehicles aircraft (not being hostile aircraft) and articles dropped
therefrom flood storm or tempest bursting and overflowing of water tanks
apparatus or pipes riot civil commotion malicious damage theft following
forcible and violent entry into or exit from the Premises subsidence and
accidental damage and against such other risks as the Landlord shall
reasonably think necessary ("the Insured Risks") in a sum equal to the full
cost of reinstatement (including Architects' and Surveyors' fees demolition
and site clearance charges and three years' loss of rent such amount to be
paid by the Tenant within 14 days of demand
THIRDLY by way of further or additional rent due in each year of the Term a
Service Charge equal to such proportion of the total cost ("the total cost")
incurred or estimated by the Landlord in respect of the Services and Expenses
specified in the Third Schedule to the Previous Lease and the costs of the
Landlord carrying out its obligation set out herein as the Area of the
premises bears to the aggregate Area of all other parts of the Building let
or intended to be let by the Landlord (the expression "Area" means the Net
Internal Area" measured in accordance with the Code of Measuring Practice
issued by the Royal Institution of Chartered Surveyors and the Incorporated
Society of Valuers and Auctioneers as amended from time to time) such Service
Charge to be calculated and payable in accordance with the following
provisions
(1) The Service Charge shall be payable in advance on the usual quarter days
(2) For the period from the date hereof to the 31st day of December 1993 the
Tenant shall pay an estimated Service Charge at the rate of L6,600 per annum
the first payment (being a proportionate payment) in respect of the period up
to the quarter day next following the date hereof to be made on or before the
execution hereof
(3) The total cost to the landlord during each financial year of the Landlord
shall be certified by a Chartered Accountant appointed by the Landlord and
shall contain a fair summary of the items referred to in it and shall
include the fees of the Chartered Accountant for such certification and an
amount for general management expenses up to 10 per cent of the said total
cost if the Landlord shall manage the Building and up to 12.5% maximum
thereof plus VAT if the Landlord shall appoint managing agents and the said
certificate shall (save in case of manifest error be conclusive evidence of
all matters of fact referred to in it but the Tenant shall be entitled to
inspect the audited account on request and be provided with copies of the
same
(4) For the purpose of assessing payment on account of the Service Charge for
each financial year of the Landlord subsequent to the 31st day of December
1993 the Service Charge for such year shall be provisionally based on
actual cost of providing the services calculated and certified as aforesaid
for the pervious financial year of the Landlord and until the actual costs
of providing service for such year shall have been certified by the
Landlord the Tenant shall continue to make equal quarterly payments in
advance on the usual quarter days in every year at the rate based on the
last cost certified by the Landlord (or on the aforementioned estimated
Service Charge if no certificate shall have been issued by the Landlord)
(5) Any under-payment or over-payment in respect of the Service Charge for a
particular financial year or lesser period shall be adjusted on the quarter
day next following the certification in manner aforesaid of the actual
costs to the Landlord of carrying out the said works and providing the said
services and facilities during that year or period
(6) The Landlord will not charge the Tenant and the Service Charge shall not
include an part of the total cost as shall be attributable from time to
time from other parts of the Building as shall be designed and available
for letting whether let or unlet or which are occupied by the Landlord
during the whole or proportionately for any part of the relevant Service
Charge year
(7) The Tenant shall also pay by way of Service Charge if requested by the
Landlord reasonable provision (to be determined by the Surveyor acting as
an expert and not as an arbitrator) towards the Landlord's anticipated
expenditure during the Term in respect of:
(a) periodically recurring items whether recurring at regular or irregular
intervals and
(b) such of the Landlord's obligations as relate to the renewal of
replacement of the items referred to
PROVIDED that:
(i) such reasonable provision in respect of items in sub-paragraph
(7)(b) aforesaid shall be determined on the assumption that the
cost of replacement of such items is calculated on such life
expectancy as the Surveyor may reasonable determine (acting as
an expert and not as an arbitrator) and that each year the
Tenant will be required to pay a rateable proportion towards the
anticipated cost of renewal or replacement by the end of the
anticipated life of each such item except that the Tenant shall
not be require to make any provision towards expenditure by the
Landlord that it is anticipated will be incurred by the Landlord
after the expiry of the Term
(ii) nothing in the provisions herein contained shall oblige the
Landlord to establish and/or maintain any such fund
sufficient in whole or in part to cover such cost of
replacement or renewal of any such item
(iii) any expenditure by the Landlord in respect of a recurring
item referred to in this Schedule or in respect of its
obligations in connection with the renewal or replacement of
any such item referred to where either:
(a) a fund has been established in connection with such
recurring item or the renewal or replacement of that item
("the Specific Fund") or
(b) a part of a fund ("the General Fund") has been allocated by
the Landlord for such recurring item or the renewal of
replacement of that item
shall first be met out of the Specific Fund or as appropriate out
of the General Fund to the extent of the credit allocated for that
item by the Landlord in the General Fund
(iv) the certificate referred to in paragraph (3) aforesaid shall
indicate whether or not the Landlord has established and is
maintaining any fund or funds pursuant to this paragraph and
shall provide full details of any such fund or funds
(v) All sums received by the Landlord pursuant to sub-paragraph (7)
aforesaid shall be credited to an account separate from the
Landlord's own money and shall be held by the Landlord upon trust
during the period of 80 years from the date of this Lease (which
shall be the perpetuity period applicable to the provisions) for
the persons whom from time to time shall be the tenants of the
Building to apply the same and any interest accruing for the
purposes set out in this paragraph and at the expiry of such
period any such sums unexpended shall be paid to the persons who
shall then be the Tenant of the Building in shares equal to the
percentage which the Service Charge payable by each tenant
respectively bears to the total of all the Service Charge paid
by the tenants of the Building
AND FOURTHLY by way of further or additional rent all sums of money which become
payable to the Landlord or its Agents by virtue of any provision of this Lease
3. VAT
All sums payable under or in connection with this Lease in respect of rent or
any other monies payable or taxable supplies received by the Tenant shall be
deemed to be exclusive of Value Added Tax (or any similar tax which shall
replace Value Added Tax) which may be chargeable thereon (but without any
obligation upon the Landlord to exercise any election to waive exemption in
respect of such tax) and upon the production by the Landlord or its agent to
the Tenant of an invoice appropriate to that tax the Tenant shall pay and
indemnify the Landlord in respect of such tax in addition to those sums and
the Landlord shall have the same remedies for non-payment of the tax as if
the tax were part of the rent or other such moneys or supply
4. MARKET RENT
The market rent ("the Market Rent") of the Premises shall be the amount which
shall be agreed between the Landlord and the Tenant to be the open Market
rent for the time being reasonably obtainable as between a willing landlord
and a willing tenant in respect of the Premises let as a whole with vacant
possession for a term equal to the residue of the term hereby granted or
fifteen years whichever shall be the longer (in both cases commencing on the
commencement of the relevant period) without payment of any fine or premium
and in all other respects on the terms and conditions of this Lease
(including the provision for the review of rent but excluding the amount of
rent payable)
ASSUMPTIONS
4.1 Upon the suppositions (if not facts)
4.1.1 That all parts of the Premises are then ready fit and
available for immediate use and occupation and could and would
be immediately occupied whether by any willing tenant or
under-tenant;
4.1.2 That the Landlord and the Tenant have complied with all the
obligations on the part of the Landlord and the Tenant
respectively imposed by these presents (but without prejudice
to any rights of either party in regard thereto); and
4.1.3 That if the Premises or any part thereof or the means of
access thereto or any services enjoyed therewith shall have
been destroyed or damaged the same had before the relevant
period been fully reinstated; and
4.1.4 That the whole of the Premises are then and will (throughout
the term required to be calculated for the purposes of such
lease) remain in good and substantial repair and condition
fit for immediate occupation and use; and
4.1.5 That the Premises have been fully fitted out and equipped so
as to be ready for immediate occupation and use by such
willing tenant for the Assumed Use; and
4.1.6 That the Premises have and will have throughout the term
required to be calculated for the purposes of such lease the
benefit of all necessary or appropriate rights easements
quasi-rights quasi-easements permissions approvals services
facilities or amenities (whether the same he required
from the Landlord or from any other person or authority) so as
to enable the willing tenant properly and beneficially to
occupy use and enjoy the Premises for the Assumed Use;
4.1.7 That the willing Lessee and its potential assignees or
underlessees to the Demised Premises suffer no disadvantage at
the relevant review date or at any time during the term
arising from an actual or potential election by the Landlord
to waive exemption in respect of Value Added Tax (or any
similar tax which shall replace Value Added Tax) so far as
concerns rent payable or of any taxable supply received by the
Tenant under or in connection with this Lease
4.1.8 That the Landlord is able to and does make full recovery of
Value Added Tax paid or payable on payments made by it in
connection with this Lease and which the Tenant is obliged to
reimburse the Landlord (whether by way of service charge or
otherwise) under the terms of this Lease
4.1.9 That for the purpose of this clause 4 the Assumed Use shall
mean as offices only
DISREGARDS:
4.2 Taking no account of
4.2.1 Any goodwill attributable to the Premises by reason of any
trade or business carried on therein by the Tenant or any
permitted Under tenant; and
4.2.2 Any effect on rent of the fact that the Tenant or any
permitted Under tenant has carried out any works to the
premises (to which the Landlord shall have given written
consent) excluding works carried out pursuant to an obligation
to the landlord; and
4.2.3 Any effect on rent of the fact that the Tenant or any
permitted Under tenant may have been in occupation of the
Premises; and
4.2.4 Any effect on rent of the absence of any rent free period or
contribution towards fitting out cost or other inducement
which it might then be the practice in the open market to make
or allow to tenants on a new letting with vacant possession
4.2.5 Any diminution of rental value which is attributable to work
carried out by or anything done or omitted by the Tenant or
any such predecessor in title or other person as aforesaid;
4.2.6 Any effect on rental value of anything by reason whereof the
Premises fail to comply with the lawful requirements of any
competent authority in respect of health or safety
4.2.7 All restrictions whatsoever relating to rent or to security of
tenure contained in any Act of Parliament and any directions
thereby given relating to any method of determining rent as
may be permitted by law
4.2.8 Any adverse effect upon rent of any temporary works operations
or other activities on any adjoining or neighbouring property;
5. REFERRAL TO EXPERT
5.1 If in any circumstances whatsoever the Market Rent shall not have been
agreed between the Landlord and the Tenant by the date three months
before the commencement ("the Review Date") of any period ("the Review
Period") of the Term for which a rent review is stimulated then the
question may at any time thereafter at the joint expense of the parties
be referred by either party to the decision of a Surveyor ("xxx
Xxxxxxxx") practising in or having knowledge of rental values in the
area in which the premises are situate
5.2 The Surveyor shall be mutually agreed by the Landlord and the Tenant or
in default of agreement to be nominated by the President for the time
being of The Royal Institution of Chartered Surveyors
5.3 The Surveyor whether agreed or nominated as aforesaid shall act as an
expert and not as an Arbitrator
5.4 The Surveyor's decision shall be binding on both the Landlord and the
Tenant but he shall be required to :
5.4.1 Afford the Landlord and the Tenant an opportunity to make
written representations to him
5.4.2 Afford the Landlord and the Tenant an opportunity to comment
on any such written representations received by his
5.4.3 Give written reasons tor his decision
6. MEMORANDUM
At the joint expense of the parties a deed of variations recording the Market
Rent in the form set out in the First Schedule to the Previous Lease shall be
prepared and completed in duplicate forthwith after the same has been agreed or
determined
7. LATE REVIEW
7.1 In the event of the Market Rent not having been agreed or determined
prior to any Review Date for any reason whatever then the Tenant shall
continue to pay to the Landlord in the manner hereinbefore provided rent
("the Previous Yearly Rent") at the yearly rate payable immediately
before such Review Date
7.2 On the Rent Payment Date immediately following the date on which such
agreement or determination shall have been made the Tenant shall pay to
the Landlord
7.2.1 the amount whereby the yearly rent agreed or determined as
aforesaid shall exceed the Previous Yearly Rent but duly
apportioned on a daily basis
7.2.2 interest on such amount at the rate of Barclays Bank plc base
rate from time to time upon each and every quarterly
instalment of additional yearly rent which would have fallen
due on or after such Review Date if the amount of the
additional yearly rent had been ascertained before such Review
Date (the amount of such interest being calculated on a day to
day basis in respect of each such quarterly instalment of
additional yearly rent as aforesaid for the period from the
date upon which the relevant instalment would have become
payable if ascertained before such Review Date up to and
including the date of payment )
7.3 In the event that such rate shall cease to exist such other comparable
rate of interest shall apply as the Landlord and the Tenant may from
time to time agree or in default of agreement shall be determined by an
Arbitrator appointed on the application of either party by the President
for the time being of the Institute of Chartered Accountants in England
and Wales in accordance with the Arbitration Acts 1950 to 1979.
8. SAME TERMS
This Lease is made upon the same terms and subject to the same covenants
provisos and conditions as are contained in the Previous Lease except as to
the premises demised the term of years granted and the rents reserved and
(except as to such modifications as are set out in the Second Schedule hereto
so that this Lease shall be construed and take effect as if such terms
covenants provisos and conditions were (except as aforesaid) repeated in this
Lease in full with such modifications only as are necessary to make them
applicable to this demise
9. TENANT'S COVENANTS
The Tenant covenants with the Landlord to observe and perform all the
covenants and conditions on its part contained in the Previous Lease (as
modified as above)
10. LANDLORD'S COVENANTS
The landlord covenants with the Tenant to observe and perform all the
covenants and conditions on its part contained in the Previous Lease
IN WITNESS whereof the parties hereto have duly executed this Lease as a Deed
the day and year first before written
THE FIRST SCHEDULE above refereed to
PART 1
EASEMENTS AND RIGHTS GRANTED
1 the right of free passage and running of water soil gas electricity and
other services to and from the Premises through any sewers drains pipes
wires and channels now or during the period of the term as hereinafter
defined running under or through any adjoining or neighbouring premises
now or during such period belonging to the Landlord (but not including
any right or easement unless the same be expressly herein referred to)
2 The full right and liberty for the Tenant and all persons authorised by
it (in common with all other persons entitled to the like right) at all
times by day or night to go pass and re-pass through and along or use
part of the forecourt and the entrance hall of the Building leading to
the Premises and the lavatories and cloakrooms for males and females
respectively situated in the common parts of the Building and such other
lavatories and cloakrooms as shall hereafter from time to time be allocated
at its discretion by the Landlord for use by the Tenant and staff employed
at the Premises
3 The right of support and protection now enjoyed by the Premises from the
Main Structure and adjacent premises in the Building capable of
providing such support and protection
4 With the Landlord's prior consent (which shall not be unreasonably
withheld) the full right and liberty for the Tenant and his authorised
servants agents and workmen at all reasonable times on reasonable notice
(except in emergency) to enter into and upon the remainder of the
Building as shall be necessary for the purpose of repairing maintaining
or altering cleaning renewing or examining the Premises and any part
thereof the subject matter of any easements or any other rights set out
in this Clause 2 and to make or permit any connections and
disconnections which may be necessary in relation thereon or for the
purpose of carrying out any work which may be necessary for the
protection of the Premises PROVIDED that in the exercise of such right
the Tenant or such persons exercising such rights shall cause as little
inconvenience and interference as is practicable and shall forthwith
make good any damage caused thereby.
5 The right to park two motor vehicles in the forecourt of the Building in
spaces designated from time to time by the Landlord in the area shown
hatched black on the plan annexed hereto
PART 2
EXCEPTIONS AND RESERVATIONS
PASSAGE OF WATER ETC
1 The free passage and running of water soil gas electricity and all other
service for any adjoining or neighbouring premises within the Building
through any sewers drains pipes wires and channels now or which at any
time within such period as aforesaid shall run under or through the
Premises and to make connections with such sewers drains pipes wires and
channels for the purpose of exercising the said fee passage of water
soil gas electricity and all other services as aforesaid
LIGHT AND AIR
2 All rights of light air and other easements and rights (but without
prejudice to those expressly hereinbefore granted to the Tenant) now or
hereafter belonging to be enjoyed by any adjacent or neighbouring land
or building over or against the Premises
SUPPORT AND SHELTER
3 The right to support and shelter and all other easements and rights now
or hereafter belonging to or enjoyed by the Building other than the
Premises and all adjacent or neighbouring land or buildings an interest
wherein in possession or reversion is at any time during the term hereby
granted vested in the Landlord
THE SECOND SCHEDULE AFORESAID
MODIFICATIONS OF TENANTS COVENANTS
In Clause 28.1 the following words shall not apply and shall be excluded from
this Lease this is to say:
"save that the Tenant may with previous written consent in writing of the
Landlord such consent not to he unreasonably withheld or delayed underlet
the whole or any part of each of the first second and basement floors
provided that no more than four underlettings are created"
The Common Seal of XXXX
XXXXX ASSOCIATES LIMITED
was affixed in the
presence of
Director
Secretary
