Dated 21st July, 1998
SLOUGH TRADING ESTATE LIMITED
- to -
BOOKPAGES LIMITED
- with -
XXXXXX.XXX, INC.
- with -
TREMCO LIMITED
---------------------------------
LEASE
Premises known as
Building 00/00 Xxxxxxxxx Xxxx
Xxxxxxx Xxxxxx Xxxxxx Xxxxxxxxx
---------------------------------
NABARRO XXXXXXXXX
The Anchorage
00 Xxxxxx Xxxxxx
Xxxxxxx XXX ZLU
Ref: JD/TNP/S2884/465
Tel: 0000 000 0000
Fax: 00000 000000
1. DEFINITIONS..........................................................1
2. INTERPRETATION.......................................................2
3. DEMISE...............................................................2
3.1 Rent........................................................2
3.2 Additional Rent.............................................3
4. TENANT'S COYENANT....................................................3
4.1 Payment of Rents............................................3
4.2 Interest on late payments...................................3
4.3 Payment of rates............................................3
4.4 Exterior painting...........................................3
4.5 Interior painting...........................................4
4.6 Repair......................................................4
4.7 Yielding Up.................................................4
4.8 Reinstatement...............................................4
4.9 Landlord's access...........................................5
4.10 Default remedies of the Landlord............................5
4.11 Signs and aerials...........................................5
4.12 Use.........................................................5
4.13 Nuisance....................................................5
4.14 Estate Regulations..........................................6
4.15 Estate Costs................................................6
4.16 Acts prejudicial to insurance...............................6
4.17 Safeguarding the Premises...................................7
4.18 Planning Applications.......................................7
4.19 Alterations.................................................7
4.20 Statutory obligations.......................................7
4.21 Alienataion.................................................8
4.22 Registration of dealings...................................11
4.23 Reletting and sale boards..................................11
4.24 Costs of licenses and notices as to breach of covenant.....11
4.25 Indemnity..................................................11
4.26 VAT........................................................12
4.27 Defects....................................................12
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4.28 Prohibited uses............................................12
5. LANDLORD'S COVENANTS................................................12
5.1 Quiet enjoyment............................................12
5.2 Insurance..................................................12
6. CONDITIONS..........................................................13
6.1 Re-possession on Tenant's default..........................13
6.2 Benefit of insurance and abatement of rent.................14
6.3 Notices....................................................14
7. RENT REVIEW.........................................................15
8. SURETY..............................................................17
9. CERTIFICATE.........................................................18
FIRST SCHEDULE...............................................................19
SECOND SCHEDULE..............................................................19
PART 1..............................................................19
PART 2..............................................................20
THIRD SCHEDULE...............................................................20
FOURTH SCHEDULE..............................................................22
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DATE OF THIS DEED: 21st July, 1998
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LANDLORD SLOUGH TRADING ESTATE LIMITED
Registered Office 000 Xxxx Xxxx Xxxxxx XX0 0XX
Company Registration No. 1184323
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TENANT BOOKPAGES LIMITED
Registered Office Sterling House 00 Xxxxxxx Xxxx
Xxxxxxxx Xxxxxxxxxxxxxxxx XX0 0XX
Company Registration No. 03223028
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SURETY XXXXXX.XXX, INC. a company
registered in the state of
Delaware United States of America
whose principal executive office
is at 0000 xxxxxx Xxxxxx Xxxxxxx
Xxxxxxxxxx 00000 and TREMCO
LIMITED (Company Registration No.
2513111) whose registered office
is at 00/00 Xxxxxxxx Xxxx Xxxxxx
Xxxxxxxxx XX0 0XX
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ESTATE The area from time to time
comprising the Landlord's estate
known as Trading Estate Slough
Berkshire of which the premises
form part
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PREMISES The land and building described
on the First Schedule and known
as Xxxxxxxx 00/00 Xxxxxxxxx Xxxx
Trading Estate Slough edged red
on the Plan
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COMMENCEMENT DATE 21st July, 1998
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TERM A term of years commencing on the
Commencement Date and expiring at
midnight on 20th November 2008
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RENT COMMENCEMENT DATE 21st July, 1998
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RENT (pound)338,500 per annum subject
to review as provided in this
Lease
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REVIEW DATE 20TH November 2003
PERMITTED USE use for the storage and
distribution of books together
with ancillary offices and/or
such other purpose within Class
B1 and/or B2 and/or B8 of the
Schedule to the Town and Country
Planning (Use Classes) Order 1987
(as amended or replaced from time
to time) as the Landlord may
first approve in writing (such
approval not to be unreasonably
withheld or delayed)
--------------------------------------------------------------------------------
THIS LEASE is made on the date and between the parties stated in the Particulars
WITNESSES as follows:
1. DEFINITIONS
In this Lease the following expressions have the meanings indicated:
the "ACT"
means the Landlord and Tenant (Covenants) Xxx 0000
"AUTHORISED GUARANTEE AGREEMENT"
has the meaning defined in and for the purposes of Section 16
of the Act and the form of such Agreement shall be as
reasonably required by the Landlord but subject always to that
permitted by the Act
"CONDUCTING MEDIA"
all sewers drains pipes wires watercourses subways cables
apparatus conduits and any other media or works for the
conduct or transmission of any service matter or material
"FULL REINSTATEMENT VALUE"
the costs (including demolition professional fees and any
value added tax payable) which would properly and reasonably
be likely to be incurred in carrying out repair or
reinstatement in accordance with the requirements of this
Lease at the time when such repair or reinstatement is likely
to take place having regard to current building techniques and
materials
"INSURED RISKS"
fires lightning earthquake explosion aircraft riot storm
tempest flood burst pipes malicious damage and impact damage
and such other insurable risks and on such terms and subject
to such exclusions as the Landlord may from time to time
consider reasonably necessary but excluding any risks which
the landlord shall decide from time to time not to include in
any policy (whether on the grounds of unavailability of
insurance cover for that risk or otherwise) but so that the
Landlord shall give at least twenty-eight days' prior notice
in writing to the Tenant of any risk ceasing to be covered by
any policy
"LOSS OF RENT"
the loss of the rent first reserved by clause 3 for such
period (being not more than three years) as may reasonably be
required by the Landlord from time to time having regard to
the likely period required for reinstatement in the event of
both partial and total destruction and in reasonable amount
which would take into account potential increases of rent in
accordance with clause 7
"PLAN"
the plan annexed hereto
"PLANNING ACTS"
includes the Town and Country Planning Xxx 0000 the Planning
(Listed Buildings and Conservation Areas) Xxx 0000 the
Planning (Hazardous Substances) Xxx 0000 and the Planning
(Consequential Provisions) Xxx 0000
"PRESCRIBED RATE"
three per centum above the Base Rate of National Westminster
Bank PLC from time to time (or such other clearing bank as the
Landlord shall nominate) or (if such rate shall cease to be
published) such other reasonable or comparable rate as the
Landlord shall from time to time designate
2. INTERPRETATION
2.1 The expressions "the Landlord" and "the Tenant" shall wherever so
admits include their respective successors in title and assigns
2.2 Where the Tenant or the Surety (if any) for the time being are two or
more persons the terms "the Tenant" or "the Surety" (if any) include
the plural number and obligations expressed or implied to be made by
such party are deemed to be made by such persons jointly and each of
them severally
2.3 Words importing one finder include all other genders and words
importing the singular include the plural and vice versa
2.4 References in this Lease m arty statute or legislation (whether
specific or general), include any other statute or legislation
replacing amending or supplementing the same and any orders regulations
by-laws notices permissions approvals or consents thereunder
3. DEMISE
The Landlord demises to the Tenant the Premises together with the
Rights referred to in Part 1 of the Second Schedule but subject to the
Exceptions and Reservations referred to in Part 2 of the Second
Schedule to hold to the Tenant for the Term starting on the
Commencement Date yielding and paying therefor during the Term
3.1 RENT
yearly the Rent and all increases arising from any review pursuant to
the provisions in this lease for the review of rent to be paid without
any deduction or set-off by equal quarterly payments in advance on the
Twenty-fifth day of March the Twenty-fourth day of June the
Twenty-ninth day of September and the Twenty-fifth day of December in
every year the first payment for the period from and including the Rent
Commencement Date up to and including the day immediately preceding the
quarter day next after such date to be made on the Rent Commencement
Date
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3.2 ADDITIONAL RENT
as additional rent first such amounts (if any) are referred to in
clause 4.15 to be paid as there stated and recoverable by distress in
the same way as rent in arrear and secondly a sum or sums of money
equal to the expertise incurred by the Landlord in effecting or
maintaining insurance in accordance with clause 5.2 (including any
increased premium payable in respect of the Premises or any neighboring
property owned by the Landlord by reasons of any act of omission by (or
permitted by ) the Tenant or an undertenant) as the Landlord shall from
time to time effect such insurance for the Landlord's benefit in the
Full Reinstatement Value against the Insured Risks and the Loss of Rent
such sum or sums to be paid within 7 days of demand
4. TENANT'S COYENANT
The Tenant covenants with the Landlord as follows:
4.1 PAYMENT OF RENTS
To pay the respective rents and sums of money reserved and made payable
at the times and in the manner in which the same are set out or
referred to in clause 3 without any deduction or set off and to make
ail such payments to the to the Landlord on the due date through the
Tenant's bankers by the direct debit system
4.2 INTEREST ON LATE PAYMENTS
If the Tenant shall fail to pay any rents or any other sum payable
under this Lease within 7 days when the same is due(whether formally
demanded or not) to pay to the Landlord as additional rent (but without
prejudice to any other rights of the Landlord including those under
clause 6) interest on all such rents or other sums from the due date
for payment until the date actually paid at the Prescribed Rate current
at such due date and any such interest shall be recoverable by the
Landlord as rent in arrear
4.3 PAYMENT OF RATES
4.3.1 To pay and indemnify the Landlord against all existing and future rates
or other outgoings whatsoever imposed or charged upon the Premises or
upon the owner or occupier in respect of the Premises
4.3.2 To pay and be responsible for all electricity gas and other services to
the Premises
4.4 EXTERIOR PAINTING
In every third year and in the last year of the Term (but so that the
Tenant shall not be obliged by the aforementioned to decorate and/or to
carry out the following obligations more than once in every two year
period) to prepare and paint the outside of the building erected on the
Premises where usually or previously so painted in a good and
workmanlike manner and otherwise property to clean treat and decorate
other parts of the outside of the said building as the same ought to be
cleaned treated and decorated (such painting and decorating if
different from the then existing colour scheme to be carried out in
colours and patterns first approved in writing by the Landlord) and
whenever necessary to renew or replace all seals and mastics
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4.5 INTERIOR PAINTING
In every fifth year and in the last year of the Term to prepare and
paint all the interior of the said building where usually or previously
so painted in a good and workmanlike manner (all such painting in the
last year of the Term if different from the then colour scheme to be
carried out in colours and patterns first approved in writing, by the
Landlord (such approval not to be unreasonably withheld or delayed))
4.6 REPAIR
4.6.1 Well and substantially to repair and maintain the premises and the
walls fences roads and Conducting Media in on or under the Premises
(damage by any of the Insured Risks excepted unless the insurance
moneys are withheld in whole or in part or the policy avoided by reason
of any act or omission on the part of the Tenant or any undertenant or
any employee contractor or invitee of either or them) and at all times
to keep the same in good and substantial repair and condition and so
repaired cleaned painted and maintained and further to keep all parts
of the Premises clean and tidy and free from rubbish and waste
materials
4.6.2 Within 12 months of the date of this Lease (time being of the essence)
to carry out to the reasonable satisfaction of the Landlord the making
good of all wants or repair to the Premises as marked with an asterisk
in the Schedule f Dilapidations annexed: hereto and in the event that
the works are not completed within the aforesaid period or to the
reasonable satisfaction of the Landlord the Landlord shall have the
right to enter the Premises to carry out such of the works not
completed as aforesaid in accordance with the provisions of clause 4.10
of this Lease
4.6.3 Without prejudice to clause 4.6.1 to execute all necessary works no
later than the expiration of the Term to remedy all the wants of repair
and works relating to reinstatement specified in the said Schedule of
Dilapidation as are not marked with an asterisk
4.6.4 Subject to clause 4.6.5 to keep such part of the Premises (if any) as
is hatched green on the plan annexed hereto as well-maintained
landscaped areas and in accordance with any general scheme for the
Estate from time to time reasonably implemented by the Landlord
4.6.5 If the Landlord so requires at any time or from time to time not to do
the things referred to in clause 4.6.4 (or such of them as may be
notified to the Tenant) but instead to pay to the Landlord on demand
the proper and reasonable costs incurred by the Landlord in doing so.
4.7 YIELDING UP
At the expiration or sooner determination of the Term to yield up the
Premises consistent with due compliance by the Tenant with its
obligations under this Lead and to remove such tenant's trade fixtures
and fittings and any signs erected by or at the insurance of the Tenant
making good any drainage caused by such removal
4.8 REINSTATEMENT
4.8.1 Three months before the expiry or sooner determination of the Term
(unless and/or to the extent otherwise required in
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4.8.2 All such works shall be carried out to the reasonable satisfaction of
the Landlord and the Tenant shall apply for any necessary planning
permission or approval which may be required under the Planning Acts or
other legislation
4.9 LANDLORD'S ACCESS
On at least 48 hours prior written notice given to the Tenant (save
that no notice shall be required in an emergency) to permit the
Landlord or its agents at all times during the Term during reasonable
hours in the day (or at any time in the case of emergency) with or
without workmen and others to enter the Premises for the purpose of
ascertaining that the covenants and conditions of this Lease have been
performed and observed by the Tenant and examining the state of repair
and condition of the Premises or for the purpose of taking inventories
of the Landlord's fixtures or of carrying out works on the adjoining
property of and owned by the Landlord and of exercising any of the
Exceptions and Reservations referred to in Part 2 of the Second
Schedule
4.10 DEFAULT REMEDIES OF THE LANDLORD
If within three months after service of a notice from the Landlord
requiring the Tenant to remedy any breach of covenant relating to the
state of repair or condition of the Premises or otherwise to the
carrying out of any works or actions (or earlier in case of emergency)
the Tenant shall not have completed such works or actions then to
permit the Landlord to enter upon the Premises and execute all or any
such works or actions and the Landlord's proper and reasonable costs
and expenses (including the Landlords surveyors and other professional
fees in connection therewith) together with interest thereon at the
Prescribed Rate current at the date three months after service of such
notice for the period from that date to the date of payment shall be a
debt due from the Tenant to the Landlord and be forthwith recoverable
as rent in arrear
4.11 SIGNS AND AERIALS
Not to erect any pole mast or aerial or satellite dish or erect or
display any sign noticeboard or advertisement on any part of the
Premises except a sign approved by the Landlord indicating the name of
the Tenant in a position approved by the Landlord any such approval to
be in writing.
4.12 USE
4.12.1 Not to use the Premises or any part thereof otherwise than for the
Permitted Use and not at any time to store anything on any part of the
Premises outside the building erected thereon
4.12.2 To use only for the parking of vehicles those parts of the Premises
designated for such purpose
4.13 NUISANCE
4.13.1 Not to use the Premises or any part of them for any illegal purpose not
to carry out on or from the Premises any noisy noxious dangerous or
offensive act activity or business nor anything which may be or become
a nuisance damage annoyance or inconvenience to the Landlord or any of
its tenants or the occupiers of any premises in the neighbourhood and
in particular not to do or permit to be done anything which might cause
electronic or radio interference with any adjoining or neighbouring
premises
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4.13.2 Not to do anything which would or might lead to any contamination of
the Premises or pollution of the environment or lead to the pollution
obstruction damaging or overloading of the Conducting Media and to
carry out (or at the Landlord's election to pay to the Landlord the
proper and reasonable costs and fees of carrying out) all works
necessary to remedy the contamination or pollution or to remove the
source of the contamination or pollution but so that the Tenant shall
not be liable hereunder and/or obliged to comply with the
aforementioned in respect of any such contamination and/or pollution
caused to and/or arising at the Premises on or before the date hereof
4.13.3 Where the Tenant has failed to observe any of the obligations in this
clause 4.13 to pay to the Landlord the proper and reasonable costs
incurred by it in obtaining such reports as the Landlord may reasonably
require to establish what damage or harm may have been caused to the
Premises or other property of the Landlord and the remedial cleaning or
other works necessary
4.13.4 Not to discharge or allow to enter into any underground or other waters
any poisonous noxious or harmful effluent liquid or substance
4.14 ESTATE REGULATIONS
To observe such reasonable regulations as may from time to time be made
by the Landlord in writing for the purposes of good estate management
and of which at least twenty-eight days prior written notification has
been given to the Tenant by the Landlord
4.15 ESTATE COSTS
To pay to the Landlord from time to time upon demand a proper fair and
reasonable proportion (as certified conclusively (save in the case of
manifest error) by the Landlord's surveyor to be proper fair and
reasonable) of the costs (similarly certified) of the management of the
Estate including (without limitation to the generosity of the
aforesaid) the upkeep of any landscaped areas and roadways included
therein the reasonable and proper fees of the Landlord of or the
Landlord's managing agents and including any costs properly and
reasonably anticipated by the Landlord to be incurred by the Landlord
in the future (but not in respect of a period exceeding one year in
advance) in respect of any of the matters referred to in this
sub-clause
4.16 ACTS PREJUDICIAL TO INSURANCE
4.16.1 Not to do anything as a result of which any policy of insurance against
damaged to the Premises or to any neighbouring premises may be
prejudiced or payment of the policy moneys may be withheld in whole or
in part or whereby the rate of premium in respect of any such insurance
may be increased and to give notice to the Landlord without delay upon
the happening of any event which might affect any insurance policy
relating to the Premises.
4.16.2 In relation to the insurance effected by the Landlord in respect of the
Premises to pay to the Landlord any excess required by the insurers or
the Landlord on demand by the Landlord following any damage or
destruction by any Insured Risks where such excess would be applicable
to any claim in respect of such damage or destruction
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4.17 SAFEGUARDING THE PREMISES
4.17.1 With respect to fire precautions and safeguarding the Premises against
damage by any of the Insured Risks or otherwise to comply with all
requirements and written reasonable and proper recommendations of the
insurers of the Premises of which at least twenty-eight days prior
written notification has been given by the Landlord to the Tenant or
the relevant insurance brokers or of the fire brigade or local
authority
4.17.2 Not to store or bring on to or allow to remain on the Premises any
article substance or liquid of a specially combustible inflammable or
explosive nature or which may be a source of contamination
4.17.3 To give written notice to the Landlord upon the Tenant becoming aware
of the occurrence of any contamination of the Premises and also upon
the Tenant becoming aware of the occurrence of any pollution of the
environment in breach of any legislative provision caused by any use of
or action or activity on the Premises
4.18 PLANNING APPLICATIONS
Not without the prior written consent of the Landlord to make any
application for any consent under the Planning Acts but if such
application is for consent to do anything which the Tenant is permitted
to do under this Lease (for which the approval of the Landlord is first
required) and the Landlord has approve that thing such consent shall
not be unreasonably withheld of delayed
4.19 ALTERATIONS
Not to erect or place any new building or structure whatsoever on the
Premises (including any temporary or moveable building or structure) or
make any alteration whether structural or otherwise or any addition to
the Premises or to the building erected thereon or to any buildings
which may be erected on the Premises Provided that the Tenant may make
non structural alternations to the interior of the building erected on
the Premises subject to obtaining the prior written consent of the
Landlord such consent not to be unreasonably withheld or delayed
PROVIDED that the Tenant may without such aforementioned consent from
the Landlord install erect place remove and/or dismantle internal
demountable non-structural partitioning in whole or in part or parts to
the office part of the Premises
4.20 STATUTORY OBLIGATIONS
4.20.1 At the Tenant's expense to comply in all respects with the provisions
of all statutes and legislation (whether now or subsequently in force)
affecting or applicable to the Premises or their use and without delay
to give notice to the Landlord of any notice direction or order made by
any local or competent authority
4.20.2 The Tenant shall maintain a health and safety file for any works
carried out to the Premises and shall comply with the Construction
(Design and Management) Regulations 1994 in respect thereof and provide
to the Landlord upon reasonable request a copy of such file
4.20.3 Upon any assignment or underlease permitted by this Lease to supply to
the assignee or sub-tenant any health and safety files and/or operating
manuals
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4.21 ALIENATAION
4.21.1 Not to assign underlet (save as provided in clause 4.21.3 hereof) share
or part with the possession or occupation of any part of the Premises
nor to permit any such dealing under a permitted underlease
4.21.2 Not to hold or occupy the Premises or any part as nominee trustee or
agent or otherwise for the benefit of any other person
4.21.3 Not to assign or underlet the whole of the Premises or to underlet the
whole of Unit 86 and/or the whole of Unit 87 and/or the whole of Xxxx
00 Xxxxxxxxx Xxxx and associated car parking spaces without the prior
consent in writing of the Landlord (such consent not to be unreasonably
withheld or delayed where the provisions hereinafter contained are
satisfied)
4.21.4 It is agreed that the Landlord will not be deemed to be unreasonable in
withholding and/or delaying consent to a proposed assignment of the
whole of the Premises if it is withheld on the ground (and it is the
case) that one or more of the circumstances mentioned below exist
(whether or not such withholding is solely on such ground or on that
ground together with other grounds):
(a) that in the reasonable and proper opinion of the Landlord the
effect of the proposed assignment upon the value of the
Landlord's reversionary interest in the Premises would be to
diminish or otherwise adversely affect such value
(b) that in the reasonable and proper opinion of the Landlord the
effect of the assignment would mean that there is a reduced
likelihood of the tenant's covenants and obligations in this
Lease being fulfilled
(c) that the proposed assignee is an associated company of the
Tenant
(d) that the Surety has not agreed on any assignment to enter into
a deed of guarantee in respect of the obligations on the part
of the Tenant contained in an Authorised Guarantee Agreement
entered into pursuant to clause 6.21.5 or the assignee's
performance of the Tenant Covenants (as defined in Section 28
of the Act) in this Lease in such form of Deed as the Landlord
may reasonably require but to include obligations on the part
of the Surety similar to those on the part of the Tenant set
out in clause 4.21.5(a)(i)-(iii)
4.21.5 On any assignment:
(a) the Tenant will enter into an Authorized Guarantee Agreement
which will be in such form as permitted by and in accordance
with Section 16 of the Act and be prepared by or on behalf of
the Landlord and at the proper and reasonable cost of the
Tenant and under which the Tenant will agree (inter alia) with
the Landlord:-
(i) that it is liable as sole or principal debtor in
respect of all obligations to be owed by the assignee
under the Tenant Covenants (as defined in section 28
of the Act) in this Lease and
(ii) to be liable as guarantor in respect of the
assignee's performance of the Tenant Covenants (as
above defined) in this Lease (provided that such
liability shall be
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no more onerous than the liability to which the
assignor would be subject in the event of it being
liable as sole or principal debtor in respect of the
obligations owed by the assignee under the Tenant
Covenants)
(iii) in the event of this Lease being disclaimed by a
liquidator or trustee in bankruptcy of the assignee
if so requested in writing by the Landlord within six
calendar months of such disclaimer to enter into a
new lease of the Premises the term of which shall
expire simultaneously with the date upon which (but
for any disclaimer) this Lease would have expired by
efflucion of time (and not by any other means) and
the Tenant's Covenants shall be identical to (mutatis
mutandis) but in any event no more onerous than the
Tenant Covenants in this Lease
(b) If the Landlord reasonably so requires in the circumstances to
obtain up to two acceptable guarantors for any person to whom
this Lease is to be assigned who will covenant with the
Landlord on the terms (mutatis mutandis) set out in the Third
Schedule
(c) If the Landlord reasonably so requires in the circumstances
the proposed assignee will prior to the assignment enter into
such reasonable rent deposit arrangement and/or provide such
additional security for the performance by the proposed
assignee of its obligations under this Lease as the Landlord
may reasonably require
(d) the proposed assignee shall enter into a covenant with the
Landlord to pay the rents reserved by and perform and observe
the covenants on the part of the Tenant contained in this
Lease for the period that this Lease is vested in the proposed
assignee
4.21.6 Clauses 4.21.4 and 4.21.5 shall operate without prejudice to the right
of the Landlord to refuse such consent on any other ground or grounds
or to impose further conditions where such refusal or such imposition
would be reasonable in the circumstances
4.21.7 Not to underlet the whole of the Premises or the parts thereof referred
in clause 4.21.3 without the prior consent in writing of the Landlord
(such consent not to be unreasonably withheld or delayed) otherwise
than at a rent which is not less than the open market rental value of
the Premises (being in any event not less than the rent then payable
under this Lease or a due and proper proportion thereof in respect of
an underletting of a part or parts of the Premises) without a fine or
premium and with provision for upwards only rent reviews coinciding
with the reviews under this Lease and in other respects with
substantially materially the same covenants and conditions as are
contained in this Lease unless otherwise agreed by the Landlord
4.21.8 Not to vary the terms of any underlease permitted under clause 4.21.7
without the Landlord's written consent (such consent not to be
unreasonably withheld or delayed provided such variation does not
constitute a variation to this Lease) and throughout the term of any
underlease to require the undertenant to perform and observe the
Tenant's covenants (except as to the payment of rent) and the
conditions contained in this Lease
4.21.9 The Landlord may as a condition for giving its consent for any
permitted underletting require the proposed underlease to enter into a
direct covenant with the Landlord to perform and observe the Tenant's
covenants (except as to payment of rent) and the conditions contained
in this Lease during the period that the proposed underlease is vested
in the proposed underlessee
-9-
4.21.10 Upon the Landlord consent to an underletting of the Premises procure
that the underlessee covenants with the Landlord:
(a) Not to assign (or agree to do so) any part of the Premises (as
distinct from the whole) and not to underlet or share or (save
by way of an assignment of the whole) part with possession of
or permit any person to occupy the whole or any part of the
Premises and
(b) Not to assign (or agree to do so) the whole of the Premises
without the prior consent in writing of the Landlord (such
consent not to be unreasonably withheld or delayed)
4.21.11 To notify the Landlord in writing with relevant details within twenty
eight days of any rent payable under an underlease being reviewed
4.21.12 Not to grant any underlease of a part or parts of the Premises without
first obtaining an Order of the Court under the provisions of Section
38(4) of the Landlord and Xxxxxx Xxx 0000 (as amended) and an agreement
between the parties to the proposed underlease pursuant to such Order
that the provisions of Section 24-28 of that Act be excluded in
relation to such underlease
4.21.13 In the event that any circumstances or conditions specified in clauses
4.21.4 and 4.21.5 above are framed by reference to any matter failing
to be determined by the Landlord (or by any other person) if the Tenant
disputes such determination then either the Landlord or the Tenant
shall be entitled to require the matter or matters in question to be
referred to an independent expert who in the absence of agreements
between the parties shall be appointed on the application of either
party by the President of the Royal Institution of Chartered Surveyors
and the determination of such independent expert shall be conclusive as
to the matter or matters in question and shall be final and binding on
the parties and his costs shall be met by the parties in such
proportions as the independent expert shall determine
4.21.14 The Tenant shall be entitled without obtaining any consent from the
Landlord to permit another company or companies (in this clause 4.21.14
called "a Company") to occupy as licensee part or parts of the Premises
if and so long as that Company is a member of the same group of
companies as the subsidiary or the holding company or a company who has
the same holding company as the Tenant (the terms subsidiary and
holding company as being defined in accordance with Section 736 of the
Companies Act 1985) and the conditions set out in the remainder of this
clause 4.21.14 continue to be fulfilled
(a) No relationship of landlord and tenant shall arise out of such
occupation
(b) Written notice shall be given to the Landlord no later than
14 days after such occupation commences
(i) as of the identity of such company
(ii) as to how clause 4.12.14 is satisfied and
(iii) of the part of the Premises concerned
-10-
(c) The Tenant shall provide such evidence as the Landlord may
reasonably require from time to time to satisfy itself that
the relationship of Landlord and Tenant does not arise or has
not arisen out of such occupation
4.21.15 The Tenant indemnifies the Landlord against all losses damages costs
and expenses suffered or incurred by the Landlord as a result of any
breach by the Tenant of the provisions of clause 4.21.14.
4.22 REGISTRATION OF DEALINGS
Within one month after the execution of any assignment or underlease
permitted under this Lease or any assignment of such underlease or
after any devolution by will or otherwise of the Term or after any
other dealing with this Lease to supply a certified copy of the deed or
instrument effecting the same to the Landlord and to pay such
reasonable fee as the Landlord may require for registration
4.23 RELETTING AND SALE BOARDS
To permit the Landlord or its agents to enter upon the Premises and to
affix upon any suitable part a notice board for reletting or selling
the same but not as to interfere with the Tenant's use of and/or access
to the Premises and/or the business carried on there and not to remove
or obscure the same and to permit all persons authorised in writing by
the Landlord or its agents to view the Premises during usual business
hours in the daytime on weekdays only
4.24 COSTS OF LICENSES AND NOTICES AS TO BREACH OF COVENANT
To pay on demand and indemnify the Landlord against all proper and
reasonable costs charges and expenses (including professional fees)
incurred by the Landlord arising out of or incidental to any
application made by the Tenant for any consent or approval of the
Landlord except where such consent has been unreasonably withheld or
delayed or any breach of the Tenant's covenants or the preparation and
service of a schedule or interim schedule of dilapidations or any
notice which the Landlord may serve on the Tenant whether served before
or after the determination of this Lease (including a notice under
Section 146 of the Law of Property Act 1925) requiring the Tenant to
remedy any breach of any of its covenants or arising out of or in
connection with any proceedings referred to in sections 146 or 147 of
that Act notwithstanding that forfeiture may be avoided otherwise than
by relief granted by the Court
4.25 INDEMNITY
To be responsible for and to indemnify the Landlord against:
4.25.1 all damages loss or injury occasioned to the Premises or any adjoining
premises or to any Conducting Media or to any person or chattel
(whether or not upon the Premises) caused by any act default or
negligence of the Tenant or any undertenant or the servants agents
licensees or invitees or either of them or by reason of any defect in
the Premises and
4.25.2 all proper and reasonable losses damages costs expenses claims and
proceedings properly and reasonably incurred by or made against the
Landlord arising out of any breach by the Tenant of any of its
obligations arising by virtue of this Lease
-11-
4.26 VAT
To pay to the Landlord upon demand any value added tax chargeable upon
4.26.1 any supply made by the Landlord to the Tenant pursuant to this Lease so
that all consideration for any such supply is exclusive of value added
tax
4.26.2 any supply (whether made to the Landlord or to a third person) where
pursuant to this Lease the Tenant is required to pay to the Landlord
any sum in respect of any costs fees expenses or other expenditure or
liability (or whatever nature) in connection with that supply except to
the extent that any such value added tax may be recoverable by the
Landlord from H.M. Customs and Excise
4.27 DEFECTS
To inform the Landlord without delay in writing upon the Tenant
becoming aware of any defect in the Premises which might give rise to a
duty imposed by ________ law or statue on the Landlord and to indemnify
the Landlord against all actions costs claims and liabilities suffered
or incurred by or made against the Landlord in respect of the Premises
under the Defective Premises Act of 1972
4.28 PROHIBITED USES
Not to use or carry out of the Premises or any part thereof any
electroplating panel beating or spray painting
5. LANDLORD'S COVENANTS
The Landlord covenants with the Tenant and (in respect of clause 5.3
with Tremco Limited) (but so that no liability shall attach to the
Landlord in respect of any breach by the Landlord of its obligations
under this Lease after the reversion immediately expectant on the
determination of the Term has cased to be vested in the Landlord):
5.1 QUIET ENJOYMENT
That the Tenant performing and observing the covenants conditions and
agreements contained in this Lease shall and may peaceably and quietly
hold and enjoy the Premises during the Term without any lawful
interruption or disturbance by the Landlord or any person rightfully
claiming through or under it
5.2 INSURANCE
At all times during the Term to keep the Premises insured for the
Landlord's benefit in the Full Reinstatement Value against the Insured
Risks and if the Premises are damaged or destroyed by any of the
Insured Risks the Landlord will subject the provisions of clause 5.2.2
hereof with all convenient and practicable speed apply for and apply
all insurance proceeds (other than those relating to Loss of Rent)
received in respect thereof in the repair and/or reinstatement and/or
rebuilding of the Premises using such materials as are then appropriate
subject to all necessary consents and licenses being obtained
-12-
PROVIDED THAT:
5.2.1 the Landlord's obligations under this covenant shall cease if the
insurance shall be rendered void or voidable or the policy moneys
withheld in whole or in party by reason of any act or default of the
Tenant or any undertenant or any of their respective employees,
contractors, licensees or invitees
5.2.2 if the Premises are destroyed or so seriously damaged by any insured
Risk as to require (in the proper and reasonable opinion of the
Landlord's surveyor whose decision shall be final and binding upon the
parties) substantial reconstruction then the Landlord may at any time
within six months of the paid damage or destruction give one months'
notice in writing to determine this Lease and immediately upon the
expiry of that notice this demise shall determine but without prejudice
to the rights and remedies of any party against any other in respect of
any antecedent claim or breach of covenant and al insurance money shall
be the absolute property of the Landlord
5.2.3 if the Premises following any destruction or damage shall not have been
repaired, reinstated or replaced in accordance with the foregoing
covenants so as to render the Premises fit for occupation or use within
a period of two years eleven months from the date of destruction or
damage the Tenant may thereafter by giving one month's notice in
writing determine this lease but without prejudice to the rights of
either party in respect of any antecedent claim or breach of covenant
and all insurance money shall be the absolute property of the Landlord
5.3 Upon receiving written request from Tremco Limited to inform in writing
Tremco Limited if the Tenant is in arrears of any payment of money due
to the Landlord under this Lease or if the Landlord in the reasonable
opinion of the Landlord considers the Tenant to be in breach of any of
the other covenants of this Lease and in both cases to provide such
information within a reasonable time of receiving such written request
but such request shall not imply upon the Landlord any obligations to
inspect the Premises to ascertain whether or not any breaches of
covenant have occurred.
6. CONDITIONS
Provided always and its hereby agreed and declared as follows:
6.1 RE-POSSESSION ON TENANT'S DEFAULT
If at any time during the Term:
6.1.1 the rents reserved by this lease or any of them or any part of them
shall be in arrears for twenty eight days after the same shall have
become due (whether legally demanded or not) or
6.1.2 the Tenant shall at any time fail or neglect to perform or observe any
of the covenants, conditions or agreements on its part to be performed
and observed contained in this Lease or in any license approval or
consent given by the Landlord to the Tenant in relation to the Premises
or in any other deed supplement to this Lease or by which this Lease
may be varied
6.1.3 The Tenant either shall (being a corporation) have an application made
for an administration order (whether or not at its instance) or enter
into liquidation whether compulsory or voluntary (not being a voluntary
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liquidation for the purpose of reconstruction only) or (being an
individual) become bankrupt or
6.1.4 the Tenant shall make any arrangement or composition with creditors or
suffer any distress or execution to be levied on property of the Tenant
or have an encumbrance take possession or a receiver appointed in
respect of the same
6.1.5 then and in any such case it shall be lawful for the Landlord (or any
person or persons duly authorised by it in that behalf) to re-enter
into or upon the Premises and thereupon the Term shall absolutely cease
and determine but without prejudice to the rights and remedies of the
Landlord in respect of any antecedent breach by the Tenant of any of
the covenants, conditions or agreements contained in this Lease.
6.2 BENEFIT OF INSURANCE AND ABATEMENT OF RENT
6.2.1 The benefit of all insurance effected by the Landlord under this Lease
or otherwise in respect of the Premises shall belong solely to the
Landlord but if the Premises or any part of them shall at any time be
destroyed and/or damaged by any of the Insured Risks so as to be unfit
for occupation and/or use and/or rendered inaccessible then and in
every such case (unless the Landlord's policy of insurance in relation
to the Premises shall have been rendered void or voidable or the policy
moneys withheld in whole or in part by reason of the act default or
omission of the Tenant or any undertenant or any of their respective
employees, contractors, licensees or invitees) the rents reserved by
this Lease or a fair and just proportion thereof according to the
nature and extent of the damage sustained shall be suspended and cease
to be payable until the Premises shall have been repaired or reinstated
and made fit for occupation and use and all access thereto restored in
accordance with clause 5.2 or until the expiration of three years (or
such longer period as may be provided for in the policy of insurance
for Loss of Rent) from the destruction or damage whichever first
occurs.
6.2.2 No account shall be taken of damage in relation to any alteration or
improvement to the Premises carried out otherwise than by the Landlord
unless such alteration or improvement has in fact been taken into
account in effecting both the insurance of the Premises and the
insurance in respect of the Loss of Rent.
6.2.3 Any dispute between the Landlord and the Tenant concerning the
proportion or duration of the suspension or cesser shall be determined
by an arbitrator appointed in default of agreement between the Landlord
and the Tenant on the application of either of them by the President of
the Royal Institution of Chartered Surveyors and any such reference
shall be a submission to arbitration within the Arbitration Xxx 0000.
6.3 NOTICES
The provisions of Section 196 Law of Property Act 1925 (as amended)
shall apply to the giving and service of all notices and documents
under or in connection with this Lease PROVIDED THAT no notice to
Tremco Limited under this Lease and no claim made against Tremco
Limited under this Lease shall be validly given or served upon Tremco
Limited unless given or served upon it at its registered office for the
time being or at any other address (within the United Kingdom) notified
from time to time by Tremco Limited to the Landlord for that purpose.
-14-
7. RENT REVIEW
7.1 In this clause:
"ASSUMPTIONS"
means the assumptions that:
1. the Premises are in good and substantial repair and
condition
2. the Landlord and the Tenant have complied with all
their respective covenants and obligations imposed by
this Lease on each of them
3. all parts of the Premises are fit and ready for use
for the Permitted Use
4. that the rent at which the Premises could reasonably
be expected to be let is that which would be payable
after the expiry of any rent free period or after the
receipt of such other rent concession or inducement
(in each case for fitting out purposes only) as may
be negotiated in the open market between the landlord
and a tenant upon a letting of the Premises
5. no work has been carried out on the Premises during
the Term which has diminished the rental value of the
Premises and
6. any damage to or destruction of the Premises or any
means of access to them has been fully reinstated
"CURRENT RENT"
means the yearly rent reserved by this Lease (disregarding any
suspension of rent under any other provision of this Lease) as
varied from time to time pursuant to this clause.
"MATTERS TO BE DISREGARDED"
means each of the following matters so far as they may affect
rental value:
1. the fact that the Tenant has previously been in
occupation of the Premises
2. any goodwill attaching to the Premises by reason of
the carrying on of the business of the Tenant at the
Premises and
3. any improvement to the Premises carried out during
the Term by the Tenant or undertenant other than
improvements effected at the expense of the Landlord
or pursuant to any obligation to the Landlord whether
under the provisions of this Lease or any other deed
or document
"NEW RENT"
as at the Review Date means the higher of:
1. the Current Rent immediately before the Review Date
and
-15-
2. the Rental Value as at the Review Date
"PRESIDENT"
means the President for the time being of the Royal
Institution of Chartered Surveyors or any other body
reasonably specified by the Landlord
"RENTAL VALUE"
as at the Review date means the open market rental value of
the Premises at that Date:
1. as agreed by the Landlord and the Tenant or
2. as determined by a Valuer pursuant to the provisions
of this clause
"VALUER"
means a chartered surveyor who has experience of practice in
property of the nature and type of the Premises and who is
acquainted with the market in the area in which the Premises
are located
7.2 The New Rent shall be payable from and including the Review Date
7.3 The Landlord may give to the Tenant not more than fifteen nor less than
six months notice in writing (a "Rent Review Notice") expiring on or
after the Review Date requiring the Current Rent payable immediately
before the Review Date to be increased as from the Review Date to the
Rental Value and any proposal made by the Landlord as to such Rental
Value shall be in writing ("a Rent Proposal")
7.4 The Tenant acknowledges that time shall not be of the essence in
relation to the giving of any such Notice and the Landlord shall be
entitled to require a review of the Current Rent with effect from the
Review Date even if the Rent Review Notice expires after or is given
after such Review Date
7.5 If the Landlord gives a Rent Proposal and the Tenant has not within
twenty eight days (time being of the essence) of it being given
disputed the amount proposed in the Rent Proposal by giving a written
counter-notice to that effect to the Landlord the amount in the Rent
Proposal shall be taken to be agreed by the Landlord and the Tenant and
shall be substituted for the Current Rent on the Review Date
7.6 If the Landlord gives a Rent Proposal and the amount specified in it is
not taken to be agreed under clause 7.5 but the Landlord and the Tenant
do not agree upon the amount of the Rental Value within three months of
the Tenant's counter-notice being given or (if earlier) by the date
which is three months before the Review Date either the Landlord or the
Tenant may require the Rental Value to be determined by a Valuer
7.7 The Landlord may require the Rental Value to be determined by a Valuer
even if no Rent Review Notice or Rent Proposal is given
-16-
7.8 Where the Rental Value is to be determined by a Valuer and the Landlord
and the Tenant do not agree as to his appointment within twenty one
days of either of them putting forward a nomination to the other such
Valuer shall be appointed at the request of either party by the
President
7.9 The Valuer shall act as an expert and not as an arbitrator and his
decision (including any decision as to the costs of such determination)
shall be final and binding on the parties
7.10 The Valuer shall upon appointment either by the parties or the
President be required upon his determination to provide a reasoned
award to the Landlord and the Tenant
7.11 Notwithstanding that the Valuer shall act as an expert the Landlord and
the Tenant shall each be entitled to make representations and
counter-representations to such Valuer a copy of which shall be
supplied by the Valuer to the other of them and in making an award as
to costs the Valuer shall have regard to the representations and
counter-representations made to him
7.12 The Valuer shall determine the Rental Value as the yearly open market
rack rental value at which the Premises might reasonably be expected to
be let with vacant possession in the open market by a willing lessor to
a willing lessee for a term of years equal in length to the balance
unexpired of the Term as at the Review Date and on the terms and
conditions of a lease which are otherwise the same as this Lease except
as to the actual amount of the Current Rent and the date on which the
term commences and making the Assumptions but taking no account of the
Matters to be Disregarded
7.13 If by the Review Date the New Rent has not been ascertained (whether or
not negotiations have commenced) the Tenant shall continue to pay the
Current Rent on each day appointed by this Lease for payment of Rent
until the New Rent has been ascertained and upon such ascertainment of
the New Rent the Tenant will pay to the Landlord as arrears of rent an
amount equal to the difference between the New Rent and the Current
Rent actually paid for the period since the relevant Review Date
together with interest on the difference at 4% below the Prescribed
Rate
7.14 In no event shall the yearly rent payable by the Tenant to the Landlord
after the relevant Review Date be less than the yearly rent payable by
the Tenant to the Landlord immediately before such relevant Review Date
7.15 A memorandum in the form act out in the Fourth Schedule of any
increased rent determined pursuant to this clause 7 shall as soon as
may be after such determination be prepared in duplicate and signed by
or on behalf of the Landlord and Tenant
8. SURETY
8.1 In consideration of this demise being made at the Surety's request the
Surety covenants with the Landlord in the terms set out in the Third
Schedule
8.2 Notwithstanding any other provision of this Lease or any other
guarantee given to the Landlord by Tremco Limited pursuant to the
provisions of this Lease or any Authorised Guarantee Agreement (as
permitted by and in accordance with Section 16 of the Act)
8.2.1 The Liability of Tremco Limited under this Lease or under any other
guarantee given to the Landlord by Tremco Limited pursuant to or in
accordance with the provisions of this Lease shall absolutely cease and
-17-
determine on the expiry of the period of 4 (four) years from the date
of his Lease (in each case with the exception of any written claim made
by the Landlord against Tremco Limited before the expiry of the said
four (4) year period) but nothing in this sub-clause shall affect the
liability of Xxxxxx.Xxx.Xxx. on its covenants contained in the Third
Schedule as Xxxxxx.Xxx.Xxx. hereby acknowledges
8.2.2 Notwithstanding the provisions of the Third Schedule no variation in
the terms and conditions of this Lease shall increase the liability of
Tremco Limited under its terms unless Tremco Limited shall first have
agreed to such variation in writing
8.2.3 Tremco's Limited liability under this Lease shall forthwith determine
absolutely upon forfeiture of the Lease by the Landlord or upon the
Landlord's agreeing to accept a surrender of it
9. CERTIFICATE
It is certified that there is no agreement for lease to which this
Lease gives effect
IN WITNESS WHEREOF of which this Lease has been executed and is delivered as a
deed on the date appearing as the date of this Lease
-18-
FIRST SCHEDULE
Description of the Building and Fixtures
The schedule annexed to this Lease headed "The First Schedule"
SECOND SCHEDULE
PART 1
The Rights
The right in common with the Landlord and all other persons now or at any time
after the date of this Lease similarly entitled to pass at all times and for all
purposes connected with the proper use of the Premises in accordance with this
Lease with or without vehicles over the land (if any) shown hatched xxxxx on the
Plan
-19-
PART 2
The Exceptions and Reservations
1. To the Landlord and all others authorised by it the tree and
uninterrupted and running of water soil gas electricity and telephone
or any other service or supply from the other buildings and land of the
Landlord and its tenants adjoining or near the Premises and from the
land and premises of others so authorised as aforesaid through the
Conducting Media which are now or may hereafter be in through under or
over the Premises
2. To the Landlord and all others authorised by it the right at all times
to enter the Premises with all necessary equipment for the purposes of:
2.1 laying constructing installing replacing maintaining or ____ Conducting
Media now or hereafter in through under or over the Premises or any
adjoining property or making connections to any such Conducting Media
2.2 carrying out inspections of or tests to any such Conducting Media
2.3 exercising any of the rights of the Landlord contained in this Lease
3. To the Landlord full right and liberty at any time hereafter or from
time to time to execute works and erections upon or to alter or rebuild
any of the buildings erected on any neighboring property of the
Landlord and to use such property and each part of it in such manner as
the Landlord may think fit notwithstanding that the access of light and
air to the Premises may thereby be interfered with
4. To the Landlord and all others authorised by it the right to pass with
or without vehicles at all times and for all purposes over the land
(if any) shown _____ yellow on the Plan
THIRD SCHEDULE
Obligations of the Surety
1. If at any time during the period that the Term is vested in the Tenant
it shall not pay any of the rents or other sums payable under this
Lease or perform and otherwise any of the covenants conditions or other
terms of the Lease the Surety shall pay such rents or other sums or
observe or perform such covenants conditions or other sums
2. By way of separate and additional liability and notwithstanding that
the guarantee in paragraph 1 may be unenforceable or invalid for any
reason the Surety Indemnifies the Landlord against all proper and
reasonable losses damages costs and expenses suffered or incurred by
the Landlord arising out of or in connection with any failure by the
Tenant, to pay any of the rents and sums or to perform and observe any
of the covenants conditions or other terms referred to in paragraph 1
3. If:
3.1 the Tenant shall be wound up or (being an individual) become bankrupt
and its liquidator or trustee in bankruptcy shall disclaim this Lease
or
-20-
3.2 the Tenant shall cease to exist or shall die or
3.3 this Lease shall be forfeited
(the date on which such event occurs being called the "Relevant Date")
the Landlord may within three months after the Relevant Date by notice
in writing require the Surety to accept a lease of the Premises for a
term commencing on the Relevant Date and continuing for the residue
then remaining of the Term at the same rents and with the same
covenants and conditions as are reserved by and are contained in this
Lease and in such case the Surety shall take such lease accordingly and
execute a counterpart of it and pay all proper and reasonable costs and
duties in relation to it PROVIDED THAT in the event of Tremco Limited
(but not any other party being a Surety to this Lease) whether jointly
or otherwise being required to accept a lease its liabilities in
respect of such lease shall be for the residue of the period four years
calculated from the date hereof so that such liability shall cease on
the expiry of the period of four years calculated from the date of this
Lease AND PROVIDED FURTHER that Tremco Limited (but not any other party
being a Surety to this Lease) shall have the right within three months
after the Relevant Date to require the Landlord if lawfully permitted
to do so to grant to it a lease on the terms aforesaid subject to the
first proviso hereto
4. The Surety undertakes with the Landlord that:
4.1 its obligations to the Landlord are primary obligations and it is
jointly and severally liable with the Tenant (both before or after any
disclaimer by a liquidator or trustee in bankruptcy) for the
fulfillment of all the Tenant's covenants and obligations
4.2 the Surety shall not claim in any liquidation bankruptcy administration
receivership composition or arrangement of the Tenant in competition
with the Landlord and that the Surety shall remit to the Landlord the
proceeds of all judgments and all distributions which the Surety may
receive from any liquidator trustee in bankruptcy administrator
administrative receiver receiver or supervisor of the Tenant and shall
hold for the benefit of the Landlord all security and rights the Surety
may have over assets of the Tenant while any liabilities of the Tenant
or the Surety to the Landlord remain outstanding and
4.3 if the Landlord shall not require the Surety to take a new lease of the
Premises the Surety shall nevertheless upon demand pay to the Landlord
a sum equal to the rent first reserved under this Lease and all other
sums that would have been payable under this Lease in respect of the
period from and including the Relevant Date until the expiry of six
months after such Date or until the Landlord shall have granted a lease
of the Premises to a third party (whichever shall first occur) in
addition and without prejudice to the Surety's other obligations to the
Landlord PROVIDED THAT nothing in this sub-paragraph shall obliged
Tremco Limited (but not any other party being a Surety to this Lease to
pay any sum where such sum would be referable to a period falling after
the expiry of the period of four (4) years calculated from the date of
this Lease
-21-
5. The Surety waives any right to require the Landlord to proceed against
the Tenant or to pursue any other remedy of any kind which may be
available to the Landlord before proceeding against the Surety
6. The liabilities of the Surety under this Schedule shall not be affected
by:
6.1 the granting of time or any other indulgence or concession to the
Tenant or any compromise or compounding of the Landlord's rights
6.2 the Tenant being in liquidation or (as the case may be) declared
bankrupt
6.3 any variation in the terms and conditions of this Lease
6.4 any delay in exercising or failure to exercise or other exercise
(including re-entry under clause 6.1) of any of the Landlord's rights
against the Tenant
6.5 any refusal by the Landlord to accept rent tendered by or on behalf of
the Tenant following a breach by the Tenant of its obligations under
this Lease
6.6 any legal limitation or any immunity disability or incapacity of the
Tenant (whether or not known to the Landlord) or the fact that any
dealings with the Landlord by the Tenant (including the acceptance by
the Tenant of this Lease) may be outside or in excess of the powers of
the Tenant or
6.7 any other thing (including the expiration or sooner determination of
the "Term or any such disclaimer or the death of the Surety (or any of
the persons comprising the Surety), or (in relation to one or more of
such persons) the discharge of the other person or persons) whereby
(but for this provision) the Surety or any of them would be exonerated
either wholly or in part from and of the Surety obligations hereunder
FOURTH SCHEDULE
Rent Review Memorandum
[Premises]
Lease dated [ ] between
[ ]
Pursuant to the above Lease [ ] as Landlord
and [ ] as Tenant record that the
yearly rent has been increased to the sum of(pound)[ ]
with effect from [relevant Review Date]
Dated: [ ]
Signed:
-----------------------------------------------------
Landlord/Tenant
-22-
DATED 28 SEPTEMBER 2000
-----------------------
SLOUGH TRADING ESTATE LIMITED
AND
XXXXXX.XX.XX.XXXXXXX
AND
ADVANTAGE UK LIMITED
AND
XXXXXX.XXX,INC.
AND
XXXXX GROUP INC.
AND
XXXXXX XXXXX
-----------------------
DEED INCORPORATING
LICENCE TO ASSIGN,
LICENSE TO CHANGE USE
AND DEED OF VARIATION
RELATING TO
XXXXXXXX 00/00 XXXXXXXXX XXXX
XXXXXXX XXXXXX XXXXXX XXXXXXXXX
-----------------------
NABARRO XXXXXXXXX
THE ANCHORAGE
00 XXXXXX XXXXXX
XXXXXXX XX0 0XX
REF: JD/TNP/S2884/00610
TEL: 0000 000 0000
FAX: 00000 000000
DEED
DATE 28 SEPTEMBER 2000
PARTIES
(1) SLOUGH TRADING ESTATE LIMITED (incorporated and registered in England
and Wales under company number 1184323) the registered office of which
is at 000 Xxxx Xxxx, Xxxxxx XX0 0XX (the Landlord);
(2) XXXXXX.XX.XX.XXXXXXX (incorporated and registered in England and
Wales under company number 03223028 the registered office
of which is at Patriot Court 0/0 Xxx Xxxxx Xxxxxx Xxxxxxxxx XX0 0XX
(the Tenant);
(3) ADVANTAGE UK LIMITED (incorporated and registered in England and Wales
under company number 3902872) the registered office of which is at
Xxxxxxx Xxxxx, 000-000 Xxxxxxxxxxx Xxxx, Xxxxxx, X000XX (the Assignee);
(4) XXXXXX.XXX,INC. (a company registered in the State of Delaware United
States of America) whose principal executive office is at 0000 Xxxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000 (the "Guarantor")
(5) XXXXX GROUP INC. (a company registered in the State of Wyoming) whose
principal place of business is at 0000 Xxxx 0xx Xxxxxx, Xxxxx 0000,
Xxxxxx, Xxxxxxxx 00000 XXX and XXXXXX XXXXX of 0000 Xxxxx Xxxxxxxx
Xxxxx, Xxxxxxxxx Xxxxxxxx 00000 XXX (the "Additional Guarantors")
RECITALS
(A) The Landlord is entitled to the reversion immediately expectant on the Term.
(B) The unexpired residue of the Term is vested in the Tenant.
(C) The Lease contains a covenant by the Tenant not to assign the Lease without
the written consent of the Landlord.
(D) The Tenant wishes to assign the residue of the Term to the Assignee.
(E) The Lease contains provisions restricting the use of the Premises and the
Assignee wishes to use the Premises for a use which is additional to that
currently provided for in the Lease.
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IT IS AGREED AS FOLLOWS
1. DEFINITIONS
In this license the following definitions apply:
ADDITIONAL GURANTORS
the fifth party to this deed;
ADDITIONAL USE
the use of the Premises as a Secure Internet Data Centre and
telecommunications centre which use shall be in addition to
and not in substitution for the Permitted Use as defined in
the Lease;
ASSIGNEE
the third party to this deed;
ASSIGNMENT
the assignment of the Lease by the Tenant to the Assignee;
DEPOSIT DEED
the deposit deed in the form of the agreed draft annexed
hereto;
EXISTING RENT DEPOSIT DEED
the rent deposit deed dated 21 July 1988 between the Landlord
and the Tenant;
GUARANTOR
the fourth party to this deed;
LANDLORD
the first party to this deed and its successors in title;
LEASE
a lease made between the Landlord (1) the Tenant (then known
as Bookpages Limited) (2) and the Guarantor (3) and dated 21st
July 1998 and any document supplemental to or varying such
lease whether entered into before or after the date of this
deed and including this deed (, but not including the
Reversionary Lease between the Landlord and its Assignee
bearing the same date as the date of this deed).
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PREMISES
00/00 Xxxxxxxxx Xxxx Xxxxxxx Xxxxxx Xxxxxx Xxxxxxxxx as more
particularly described in the Lease;
SECOND RENT DEPOSIT DEED
the rent deposit deed in the form of the agreed draft annexed
hereto;
TENANT
the second party to this deed;
TERM
the term of years created by the Lease.
2. INTERPRETATION
2.1 The clause headings are for reference only and do not affect the
construction of this deed.
2.2 The words include and including are deemed to be followed by the words
without limitation.
2.3 General words introduced by the word other do not have a restrictive
meaning by reason of being preceded by words indicating a particular
class of acts, things or matters.
2.4 Obligations owed by or to more than one person are owed by or to them
jointly and severally.
2.5 A reference to a person includes an individual, a corporation, company,
firm, or partnership or government body or agency, whether or not
legally capable of holding land.
2.6 A reference to particular legislation is a reference to that
legislation as amended, consolidated or re-enacted from time to time
and includes all orders, regulations, consents, licences, notices and
bye-laws made or granted under such legislation.
2.7 Unless otherwise stated, a reference to a clause is a reference to a
clause or sub-clause of this deed.
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2.8 The rights of the Landlord under any clause in this deed are without
prejudice to the rights of the Landlord under any other clause or under
the Lease or any other security.
3. CONSENT TO THE ASSIGNMENT
3.1 The Landlord consents to the Assignment on the terms of this deed.
3.2 The consent given in clause 3.1 (but not any other part of this
licence) will lapse and become void if the Assignment has not been
completed within two months from the date of this deed or if the
condition in clause 4 is not fulfilled.
3.3 The Tenant will pass to the Assignee any health and safety files and/or
operating manuals relating to the Premises.
3.4 It is a condition of the grant by the Landlord of consent to the
Assignment that the Assignee enters into the Deposit Deed and delivers
it to the Landlord, completed and duly executed by the Assignee no
later than the date of completion of the Assignment, and the covenants
with the Landlord so to do.
3.5 In accordance with the terms of the Existing Rent Deposit the
Landlord will release the amount held by it under the Existing Rent
Deposit at completion of the assignment to the Tenant.
3.6 It is a condition to the grant by the Landlord of consent to the
assignment that the Tenant enters into the Second Deposit Deed and
delivers it to the Landlord completed and duly executed by the Tenant
no later than the date of completion of the Assignment and the Tenant
covenants with the Landlord so to do provided that it is hereby agreed
that the Landlord may transfer the deposit held under the Existing Rent
Deposit Deed into the Second Deposit Deed in full satisfaction of the
deposit to be held pursuant to the Second Deposit Deed.
4. AUTHORISED GUARANTEE AGREEMENT
It is a condition of the grant by the Landlord of consent to the
Assignment that the Tenant enters into an authorized guarantee
agreement in the form set out in the Schedule 1 to this deed, and
delivers it to the Landlord, completed and duly executed by the Tenant
no later than the date of completion of the Assignment, and the Tenant
covenants with the Landlord so to do.
5. NOTIFICATION
The Assignee covenants with the Landlord to give written notice to the
Landlord of completion of the Assignment within twenty eight working
days of completion of
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the Assignment, and to provide to the Landlord a certified copy of the
completed Assignment, and to pay the Landlord's registration fee of
(pound)25 and in addition where the Lease is registered at HM Land
Registry to make application to register the Assignment at HM Land
Registry.
6. COSTS
1.1 The Tenant covenants with the Landlord to pay the reasonable and proper
costs, fees, charges and expenses of the Landlord relating to this deed
(even if this consent lapses) and the authorised guarantee agreement
referred to in clause 4 and the Deposit Deed, together with either:
1.1.1 the value added tax chargeable on any taxable supply arising in
connection with the grant of this licence (as a result of the
landlord having made an election to waive exemption or otherwise)
or, in all other cases,
1.1.2 an amount equal to any input value added tax incurred by the
Landlord on such costs, fees, charges and expenses and which the
Landlord cannot recover.
7. GENERAL
7.1 This deed is supplemental to the Lease and is a deed.
7.2 Any breach of the terms of this deed will give rise to a right of
re-entry under the Lease.
7.3 The Assignee covenants with the Landlord to pay the rents and other
sums reserved by the Lease on the due dates through their bankers by
direct debit and will complete a mandate accordingly when called upon
by the Landlord so to do.
7.4 The Assignee covenants with the Landlord to procure that the Guarantor
and Additional Guarantors will enter into any deed or document
supplemental to the Lease which is entered into after the date of the
Assignment and before the Guarantor or the Additional Guarantors are
released by virtue of the Landlord and Tenant (Covenants) Xxx 0000.
8. GUARANTEE
8.1 General
8.1.1 The provisions of this clause 8 will take effect immediately upon
completion of the Assignment.
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8.1.2 Reference in this clause 8 to the Assignee is to the third party to
this deed and to the extent permitted by and until such time as
such party is released by virtue of the Landlord and Tenant
(Covenants) Xxx 0000, such term shall include its successors in
title.
8.2 Guarantee
8.2.1 The Additional Guarantors hereby covenant with the Landlord in the
terms set out in the Third Schedule to the Lease save that the
provisos contained in paragraphs 3.3 and 4.3 relating to Tremco
Limited shall not apply.
9. CONSENT TO CHANGE OF USE
9.1 Subject to the Assignee first complying with this clause and the
Landlord giving its written approval to the consents mentioned below
(such approval not to be unreasonably withheld), the Landlord consents
to the Assignee and its successors in title using the Premises for the
Additional Use.
9.2 The Assignee shall:
9.2.1 obtain and produce to the Landlord all necessary consents of any
person or competent authority (including the insurer of the
Premises) for the implementation of the Additional Use;
9.2.2 comply with all legislation and consents and with the requirements
of the insurer of the Premises relating to the Additional
use; and
9.2.3 pay any increased or further premium payable under the insurance
policy of the Premises or any neighbouring premises of the Landlord
arising out of the use of the Property for the Additional Use.
9.3 The consent to the Additional Use will lapse if the Assignment is
not completed within two months from the date of this licence.
9.4 From the date of the Assignment the term Permitted Use under the Lease
shall include the term Additional Use.
10. RENT
It is hereby agreed between the parties that with effect from 24th June
2000 the Rent reserved by the Lease shall be (pound)390,000 per annum
(until varied in accordance with the terms of the Lease) and from such
date as aforesaid the Tenant for itself and its successors in title
covenant to pay such Rent in accordance with the term applicable
thereto contained in this Lease and this deed.
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11. THE GUARANTOR AND THE TENANT'S LIMIT OF LIABILITY
The Landlord hereby agrees and covenants that the Tenant and the
Guarantor shall be released from all and any liability arising under
this deed, the Lease or any other supplemental document as at the date
of expiry of the Lease save in relation to any outstanding claim or in
relation to any antecedant breach by the Tenant of the Lease.
12. TREMCO
12.1 The Landlord acknowledges that from the date of completion of the
assignment Tremco Limited is unconditionally released from its position
as guarantor under the Lease and will not be called upon in such
capacity in the event of default by the Tenant.
12.2 The Landlord will, at the Tenant's costs, provide written
acknowledgement as to such release addressed to Tremco as at the
date of completion of the assignment.
13. RELEASE
13.1 The additional Guarantors shall be released from their covenants and
obligations pursuant to the Lease:
13.1.1 Upon an assignment of the Lease (subject to and in accordance with
the provisions of Clause 4.21 hereof) provided the assignee being a
limited company complies with and achieves the provisions of the
Profits Test or is of sufficient financial strength and resources
(to be determined by the Landlord acting reasonably) to be able to
observe and perform the covenants contained in the Lease;
13.1.2 Upon the Surety providing a substitute surety (which may be another
member of the Tenant's group of companies) who enters into the
covenants with the Landlord specified in the Third Schedule to the
Lease and who in the case of a limited company complies with the
provisions of the Profits Test or being a limited company or an
individual or individuals is or together are jointly of sufficient
financial strength and resources (to be determined by the Landlord
acting reasonably) to be able to observe and perform the covenants
contained in the Lease in the event of any default by the Tenant;
or
13.1.3 Upon the Tenant (here meaning Advantage UK Limited and not its
assigns or successors in title) complying with and achieving the
provisions of the Profits Test.
13.1.4 Upon there being provided to the Landlord a Rent Indemnity from a
creditworthy commercial bank (approved by the Landlord such
approval not to
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be unreasonably withheld or delayed) substantially in the form of
the draft document annexed (subject to such amendments only as
may be necessary to comply with any changes in the law or
commercial practices such changes due to commercial practice
being first approved by the Landlord such approval not to be
unreasonably withheld or delayed) issued from its offices in
London in an amount equal to the lesser of (i) eight years' rent
and (ii) the rent remaining under the term of the Lease.
13.1.5 For the purpose of this Clause 8 "Profits Test" shall mean:
a company being subject to the provisions of clauses 8.2.1 to 8.2.3
(inclusive) hereof which notifies the Landlord in writing (with
copies of all relevant audited accounts and other relevant
material) that in each of three consecutive accounting period of
that company (the third such period ending no earlier than 12
months before such notice) that the company's audited accounts
established that its net profit after tax for each such accounting
period constituted a sum which is at least three times the amount
of annual rent payable under the Lease as at the date of the
company's notice and the Landlord having confirmed in writing unto
the Tenant and the said company that it is satisfied that the
notice accounts and material referred to establish the
circumstances referred to and in this respect the Landlord shall
not unreasonably withhold or delay such written confirmation.
13.1.6 Upon the Landlord giving such written confirmation the parties
shall enter into a deed in such form as the Landlord may reasonably
require prepared by or on behalf of the Landlord at the cost of the
Tenant to record the relevant facts and until such time as such
deed is completed the obligation of the Surety shall remain in full
force and effect.
13.2 The provision of this Clause 13 shall not in anyway act or be
interpreted so as to limit or reduce the provisions or effect
of Clause 4.21 of the Lease.
14. SECOND RENT DEPOSIT
The Second Rent Deposit shall be returned to the Tenant in accordance
with the provisions of Clause 8 of the Second Rent Deposit Deed.
IN WITNESS of which this licence has been duly executed and is delivered on the
date written at the beginning of this deed.
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THE SCHEDULE
Form of authorised guarantee agreement to be entered into by the Tenant
AUTHORISED GUARANTEE AGREEMENT
DATE
PARTIES
(1) XXXXXX.XX.XX.XXXXXXX (incorporated and registered in England and Wales
under company number 251311) (the Guarantor);
(2) SLOUGH TRADING ESTATE LIMITED (incorporated and registered in England
and Wales under company number 1184323), the registered office of which
is at 000 Xxxx Xxxx, Xxxxxx Xxxxxxxxx XX0 0XX (the Landlord);
(3) XXXXXX.XXX,INC. a company registered in the State of Delaware, United
States of America, whose principal executive office is at 0000 Xxxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000 (the "Existing Guarantor")
RECITALS
(A) By the Lease the Premises were let to the Guarantor (then known as
Bookpages Limited) for a term of years from and including 21 July 1998
and expiring at midnight on 20 November 2008.
(B) The reversion immediately expectant on the term created by the Lease
remains vested in the Landlord and the residue of the term remains
vested in the Guarantor.
(C) The Lease contains a covenant against assignment without the consent of
the Landlord.
(D) The Landlord has given its consent to an assignment to the Assignee,
subject to a condition that the Guarantor enters into an agreement
guaranteeing the performance of the tenant covenants by the Assignee in
the form of this deed.
(E) This deed is entered into by the Guarantor pursuant to that condition.
(F) The Existing Guarantor has agreed to enter into this deed to indemnify
the Landlord against any breaches by the Guarantor of its obligations
herein contained.
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IT IS AGREED AS FOLLOWS
1. DEFINITIONS
In this deed the following definitions apply:
ASSIGNEE
Advantage UK Limited (incorporated and registered in England
and Wales under company number 3902872), the registered office
of which is at Lincoln house 000-000 Xxxxxxxxxxx Xxxx Xxxxxx
X00 XXX;
EXISTING GUARANTOR
the third party to this deed;
GUARANTOR
the first party to this deed and its successors in title;
LANDLORD
the second party to this deed and its successors in title;
LEASE
a lease made between the Landlord (1) the Guarantor (2) and
Xxxxxx.Xxx,Inc. and Tremco Limited (3) and dated 21 July 1998
and any document varying or supplemental to such lease whether
entered into before or after the date of this deed.
PREMISES
00/00 Xxxxxxxxx Xxxx Xxxxxxx Xxxxxx Xxxxxx Xxxxxxxxx, as more
particularly described in the Lease.
2. INTERPRETATION
2.1 The table of contents and clause headings are for reference only and
do not affect the construction of this deed.
2.2 The words include and including are deemed to be followed by the words
without limitation.
2.3 General words introduced by the word other do not have a restrictive
meaning by reason of being preceded by words indicating a particular
class of acts, things or matters.
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2.4 Obligations owed by or to more than one person are owed by or to them
jointly and severally.
2.5 References to a person includes an individual, a corporation, company,
firm or partnership or government body or agency, whether or not
legally capable of holding land.
2.6 References to the Act are to the Landlord and Tenant (Covenants) Xxx
0000 and any regulations and orders made under it and as it is
amended or consolidated from time to time.
2.7 Unless otherwise stated, a reference to a clause is a reference to a
clause or sub-clause of this deed.
2.8 Where a sum is expressed to be payable on demand, it will become
payable, unless otherwise specified, 10 working days after the demand
has been made.
2.9 The expression tenant covenants is to be construed consistently
with the Act but shall not include any tenant covenant expressed to be
personal to the Tenant or its predecessors in title.
3. GUARANTEE
3.1 The Guarantor irrevocably and unconditionally guarantees to the
Landlord that the Assignee will duly and punctually perform and comply
with all the tenant covenants of the Lease until the Assignee is
released from those covenants by virtue of the Act.
3.2 The Guarantor agrees that if the Assignee, in respect of any time
before it is released by virtue of the Act, fails duly and punctually
to perform and comply with any of the tenant covenants in the Lease, it
shall, on demand, perform or comply with such covenant.
4. PRINCIPAL DEBTOR
As a separate and independent obligation under this deed the Guarantor
agrees that if any sum or obligation expressed to be guaranteed under
this deed is not recoverable from or enforceable against the Guarantor
or any sum expressed to be due under obligations is not recoverable
from the Guarantor on the basis of a guarantee (for whatever reason),
the Guarantor shall be liable as sole or principal debtor in respect of
such sum or obligation which shall be paid, performed or complied with
by the Guarantor on demand.
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5. GUARANTOR TO TAKE A NEW LEASE
5.1 The Guarantor agrees that if a liquidator or trustee in bankruptcy of
the Assignee disclaims the Lease, or the obligations of the Assignee
under it, or if the Lease becomes bona vacantia and is disclaimed, it
will, if required by the Landlord within 6 months of the Landlord
having received notice of the disclaimer, take a new lease of the
Premises from the Landlord.
5.2 The new lease shall:
5.2.1 be for a term commencing on the date of the disclaimer and be equal
to the unexpired residue of the term of years granted by the Lease
(and for the avoidance of doubt shall not extend to any period of
extension that may have been granted pursuant to any reversionary
Lease) (or the residue which would be unexpired but for the
disclaimer) as at the date of the disclaimer;
5.2.2 reserve a rent equal to the rent reserved under the Lease
immediately before the disclaimer, and otherwise be on the same
terms as the Lease, but with no provision for a rent free period
(if any was granted under the Lease), and
5.2.3 take effect from the date of the disclaimer.
5.3 The new lease will take effect subject to the Lease, and if and to the
extent that it is still subsisting, and subject to any underlease or
other interest created or permitted by the Assignee or its predecessors
in title.
5.4 The Guarantor shall pay the Landlord's reasonable and proper costs
in connection with the grant of the new lease and shall execute,
deliver and pay the stamp duty on a counterpart of it to the Landlord.
6. SUPPLEMENTARY PROVISIONS
6.1 No discharge of the Guarantor
Without prejudice to subsection 18(3) of the Act, the Guarantor's
liability under this deed will remain in full force and effect and will
not be released or discharged nor will the rights of the Landlord be
prejudiced or affected by the following:
6.1.1 any time, indulgence or concession granted by the Landlord to the
Assignee or to any other person who is liable;
6.1.2 the Landlord dealing with, exchanging, varying or failing to
perfect or enforce any of its rights or remedies against the
Assignee or any other person who is liable;
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6.1.3 the existence of or dealing with, varying or failing to perfect or
enforce any other rights or security which the Landlord may have or
acquire against the Assignee or any other person who is liable in
respect of the Assignee's obligations under the Lease;
6.1.4 any variation of, addition to or reduction from the terms of the
Lease, whether or not the same is substantial or is prejudicial to
the Guarantor or confers only a personal right or obligation;
6.1.5 any non-acceptance of the rent or other sums due from the Assignee
under the Lease, in circumstances where the Landlord has reason to
suspect a breach of the Assignee's obligations under the Lease;
6.1.6 the occurrence of any of the events set out in clause 6.1
(Forfeiture) of the Lease;
6.1.7 a surrender of part of the Premises, except that the Guarantor will
have no liability in relation to the surrendered part in respect of
any period after the date of the surrender;
6.1.8 any incapacity or change in the constitution, status or name of the
Assignee or the Landlord;
6.1.9 any amalgamation, merger or reconstruction by the Landlord with any
other person or the acquisition of the whole or any part of its
assets or undertaking by any other person;
6.1.10 any voluntary arrangement entered into by the Assignee or any other
person who is liable with all or any of its creditors (whether or
not such arrangement binds or is expressed to bind the Landlord);
or
6.1.11 any other act or thing by virtue of which, but for this provision,
the Guarantor would have been released or discharged from its
obligations under this deed, or the rights of the Landlord would
have been prejudiced or affected, other than a release by deed,
entered into by the Landlord, in accordance with the terms of such
deed.
and the parties acknowledge that each of the matters listed above is
separate and independent and is not to be interpreted in the light of
any other.
6.2 Waiver of rights by the Guarantor
6.2.1 Until all the liabilities expressed to be guaranteed by the
Guarantor under this deed have been paid, discharged or satisfied
irrevocably and in full, the Guarantor agrees not, without the
consent of the Landlord, to:
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(a) exercise any of its rights in respect of the liabilities
expressed to be guaranteed under this deed against the
Assignee or any other person who is liable;
(b) demand or accept repayment in whole or in part of any
indebtedness due to the Guarantor from the Assignee or any
other person who is liable, on demand or accept any other
security in respect of such indebtedness or in respect of the
obligations of the Guarantor under this deed and any security
received by the Guarantor in breach of the above or any such
security held by the Guarantor at the date of this deed shall
be held by the Guarantor on trust for the Landlord and
delivered to the Landlord on demand;
(c) claim any legal or equitable set-off or counterclaim against
the Assignee or any other person who is liable; or
(d) claim or prove in competition with the Landlord in the
liquidation or bankruptcy or in any administration or
receivership of the Assignee or any other person who is
liable, or have the benefit of or share in any payment or
distribution from or composition or arrangement with the
Assignee or any other person who is liable and any money or
other property received by the Guarantor in breach of this
shall be held by the Guarantor on trust for the Landlord and
delivered to the Landlord on demand.
6.2.2 The obligations of the Guarantor under this deed may be enforced by the
Landlord against the Guarantor:
(a) at its discretion and without first enforcing or seeking to
enforce its rights against the Assignee or any other person
who is liable or under any other security or resorting to any
other means of payment; and
(b) as primary obligations and not merely as obligations of a
surety.
6.3 Payments in gross
All dividends, compositions and moneys received by the Landlord from
the Assignee or any other person which are capable of being applied by
the Landlord in satisfaction of the liabilities expressed to be
guaranteed under this deed, will be regarded for all purposes as
payments in gross, and will not prejudice the right of the Landlord to
recover from the Guarantor the ultimate balance which, after receipt of
such dividends, compositions and moneys, may remain owing or expressed
to be owing to the Landlord.
6.4 Guarantor to enter into supplemental documents
As and when called upon to do so by either the Landlord or the
Assignee, the Guarantor shall enter into any document supplemental to
the Lease (by deed if required) for the purpose of consenting to the
Assignee entering into such
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supplemental document and confirming that, subject only to subsection
18(3) of the Act, all the obligations of the Guarantor will remain in
full force and effect in respect of the Lease.
6.5 Guarantor to reimburse costs of enforcement
The Guarantor agrees to pay to the Landlord on demand, all reasonable
and proper legal and other costs and charges which may be payable by
the Landlord in relation to the enforcement of the Guarantor's
obligations in this deed.
6.6 Interest
The Guarantor agrees to pay interest on each amount demanded of it
under this deed, at the rate of interest payable under the Lease until
payment (both before and after any judgement), except that where the
sum demanded from the Guarantor includes interest due from the Assignee
at that rate and the whole amount of the sum demanded is paid by the
Guarantor immediately on demand, the Guarantor will not be liable to
pay further interest on that sum.
6.7 Notices
Any notices given in connection with this deed must be in writing and
will be validly served if sent by first class post, or registered post
or by recorded delivery and addressed to the Landlord or the Guarantor
at its address given in this deed or, in the case of the Landlord, at
such other address as the Landlord has notified to the Guarantor in
writing. A notice sent by post from within the UK and correctly
addressed and properly stamped will be conclusively treated as having
been delivered two working days after posting.
6.8 Other security held by the Landlord
This guarantee is in addition to any other guarantee or security or any
other right or remedy held by or available to the Landlord from time to
time.
7. INDEMNITY
The Existing Guarantor hereby:
7.1 irrevocably and unconditionally guarantees to the Landlord the
observance and performance of the obligations on the part of the
Guarantor pursuant to this Agreement and
7.2 covenants with the Landlord to indemnify the Landlord against all
losses damages costs expenses claims proceedings incurred by or made
against the Landlord arising out of any breach by the Guarantor of any
of its obligations arising by virtue of this deed.
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8. SCOPE OF THIS DEED
8.1 The provisions of this deed will have effect from completion of the
assignment of the Lease to the Assignee.
8.2 The intention of the parties to this deed is that it should be an
authorised guarantee agreement within the meaning of the Act.
8.3 If any provision, or any part of a provision, of this deed has the
effect of causing this deed not to be an authorised guarantee agreement
within the meaning of the Act to any extent, that provision or part is
to be treated as having been modified (or if necessary omitted from
this deed) to the extent needed to avoid that effect.
8.4 Each of the provisions of this deed is separate and severable from the
others, and if at any time one or more of the provisions is or becomes
illegal, invalid or unenforceable (whether wholly or to any extent),
the legality, validity or enforceability of the remaining provisions
(or the same provision to any other extent) will not be affected or
impaired.
8.5 The rights of the Landlord under any clause are without prejudice to
the rights of the Landlord under any other clause or under the Lease or
any other guarantee or security held by or available to the Landlord.
8.6 The obligations of the Guarantor under any clause are without
prejudice to its obligations under any other clause or to the rights
of the Landlord under any other clause or the Lease or any other
guarantee or security held by or available to the Landlord.
8.7 The rights of the Landlord under this deed shall subsist for the
benefit of the successors in title of the Landlord under the Lease
without the need for any express assignment of the benefit of them.
IN WITNESS of which this deed has been duly executed and is delivered on the
date written at the beginning of this deed.
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