Alienation. Not to assign, transfer, underlet, or part with the possession or occupation of the Demised Premises or any part thereof or suffer any person to occupy the Demised Premises or any part thereof as a licensee BUT SO THAT NOTWITHSTANDING the foregoing the Landlord shall not unreasonably withhold or delay its consent to an assignment of the entire of the Demised Premises or an underletting of the entire or part of the Demised Premises to an assignee/underlessee that constitutes an institutionally acceptable covenant and that is of good and sufficient financial standing (and in the case of an assignment, is otherwise to the reasonable satisfaction of the Landlord) sufficient to meet its obligations as aforesaid subject always to the following provisions or such of them as may be appropriate, that is to say: (a) The Tenant shall prior to any such alienation as aforesaid apply to the Landlord and give all reasonable information concerning the proposed transaction and concerning the proposed assignee, under-lessee, licensee or disponee as the Landlord may reasonably require; (b) The Landlord’s consent (if given) to any such alienation shall be in writing and shall be given in such manner as the Landlord shall decide acting reasonably and the Tenant shall pay the reasonable vouched costs of the Landlord properly incurred in connection with the furnishing of such decision; (c) In the case of an assignment to a limited liability company which is not an institutionally acceptable covenant and of good and sufficient financial standing to meet its obligations as aforesaid, it shall be deemed reasonable for the Landlord to require that a guarantor or guarantors of financial standing satisfactory to the Landlord (acting reasonably) shall join in such consent as aforesaid as surety or sureties for such Company in order jointly and severally to covenant with the Landlord in the manner described in the guarantee contained in the Schedule 8 (mutatis mutandis); (d) In the case of an underlease, the Tenant agrees to use reasonable endeavours to ensure that the terms and conditions of any underlease remain confidential as between the Landlord and the Tenant and shall not be disclosed by the Tenant to any third party without the Landlord's prior written approval, except as required by Law; (e) In the case of an underlease, the same shall be of either the entire of the Demised Premises or part of the Demised Premises PROVIDED THAT (A) The Tenant may sub-let on a floor-by-floor basis subject to a maximum of four (4) sub-lettings at any one time; (B) The Tenant may sub-let part only of a floor subject to a cap of two sub-tenants per floor and at a minimum of 50% of the floor area of a particular floor the Landlord acknowledging that the remaining un-let space may be less than 50% of a particular floor and subject further to the maximum of four (4) sub-lettings of the Demised Premises referenced in clause 4.20.1(f)(A) above and PROVIDED THAT the Tenant has obtained the necessary Fire Safety Certificate and Disability Access Certificate and any other consents or approvals for the sub-division of any floor; and (C) The Tenant shall be entitled to sub-let the entire of the part of the Demised Premises comprising Nos. 4, 5 & 6 Sir ▇▇▇▇ ▇▇▇▇▇▇▇▇’▇ Quay which sub-letting shall not be considered a sub-letting for the purposes of the restrictions set out in clauses 4.20.1(f)(A) and 4.20.1(f)(B) above. and PROVIDED FURTHER that the Tenant has obtained the necessary Fire Safety Certificate and Disability Access Certificate and any other consents or approvals for the sub-division of any floor. In the case of such underlease the same shall be made without taking a fine or premium at the then full current open market rent and the under-lessee shall, if required by the Landlord, enter into a direct covenant with the Landlord to perform and observe all the covenants (other than that for payment of the rents hereby reserved) and conditions herein contained and every such under-lease shall also be subject to the following conditions, that is to say that it shall contain:- (i) provisions for the review of the rent thereby reserved (which the Tenant hereby covenants to operate and enforce) corresponding except as to terms and dates but in all other respects (mutatis mutandis) with the rent review provisions contained in this Lease; (ii) a covenant by the undertenant (which the Tenant hereby covenants to use reasonable endeavours to enforce) prohibiting the undertenant from doing or suffering any act or thing upon or in relation to the Demised Premises in breach of, the provisions of this Lease; (iii) Any such sublease shall absolutely cease and determine if for whatever reason (including forfeiture) this Lease is terminated or expires (but the Landlord acknowledges that this shall be subject to any sub-tenant statutory rights which any sub-tenant may have entitling the sub-tenant to remain in occupation) (without prejudice to any claims the Landlord may have against the Tenant if such rights arise due to any breach of the Tenant's covenants in this Lease) and the Tenant shall procure that the sub-lessee vacates the premises underlet to it at the expiration or sooner determination of the Term; (iv) a condition for re-entry on breach of any covenant by the undertenant; (v) the same restrictions as to alienation, assignment, underletting, parting with or sharing the possession or occupation of the premises underlet; and (vi) a confirmation of renunciation of statutory renewal rights; (f) To enforce at the Tenant’s own expense the performance and observance by every such undertenant of the covenants, provisions and conditions of the under-lease and not, at any time, either expressly or by implication, to waive any breach of the same; (g) Not to agree any reviewed rent with the undertenant or any rent payable on any renewal thereof without the prior written consent of the Landlord such consent not to be unreasonably withheld or delayed but provided always that nothing herein shall prevent the Tenant from complying with any independent determination process provided for in the rent review clauses of the sub-lease; (h) Not to produce evidence of, refer to or seek to rely upon during any rent review pursuant to Schedule 4 the terms, conditions and/or existence of any under-letting(s) of part or all of the Demised Premises created by the Tenant including but not limited to the rent payable under any such under-letting(s); (i) Not to vary the terms of any permitted under-lease without the prior written consent of the Landlord not to be unreasonably withheld or delayed. (j) For the avoidance of doubt, in the case of an assignment, underletting, parting with possession or occupation of the Demised Premises or any part thereof or sufferance of any person to occupy the Demised Premises or any part thereof as a licensee or concessionaire (an “Alienation”), it shall be reasonable for the Landlord to withhold consent to any such Alienation of the Demised Premises or part thereof where the Alienation would, in the reasonable opinion of the Landlord, have the effect or give rise to a termination of the Landlord’s Option to Tax. PROVIDED ALWAYS THAT it shall not be reasonable for the Landlord to withhold such consent in circumstances where prior to any such proposed Alienation the Tenant pays or procures the payment to the Landlord of: (i) an amount equal to the amount of any VAT clawback or VAT payment obligations suffered by the Landlord as a result of such Alienation (hereinafter referred to in this Lease as a VAT Adjustment); and (ii) because the VAT Adjustment payable under sub-clause (i) above is or may be subject to tax in the hands of the Landlord, such further sum (the “Additional Payment”) as will leave the Landlord in at least the same position as if the VAT Adjustment had not been subject to tax and for the purpose of calculating the Additional Payment it shall be assumed, if not otherwise the case, that the VAT Adjustment and the Additional Payment constitute the sole income of the Landlord and that the Landlord has no deductible expenses, losses or allowances for tax purposes for offset or reduction against such income or receipt and the Tenant shall keep the Landlord indemnified in respect of any such VAT Adjustment and Additional Payment. In respect of the above, the Landlord agrees to furnish to the Tenant a calculation of any sums due (the “Statement”) signed by the Landlord’s auditors or tax advisors and such Statement shall (save in the case of manifest error) be final and binding on the parties. All amounts shall be paid in advance to the Landlord prior to issuing consent to any proposed alienation.
Appears in 2 contracts
Sources: Lease Agreement (Hubspot Inc), Lease Agreement (Hubspot Inc)
Alienation. Not to assign, transfer, underlet, or part with the possession or occupation of the Demised Premises or any part thereof or suffer any person to occupy the Demised Premises or any part thereof as a licensee BUT SO THAT NOTWITHSTANDING the foregoing the Landlord shall not unreasonably withhold or delay its consent to an assignment of the entire of the Demised Premises or an underletting of the entire or part of the Demised Premises to an assignee/underlessee that constitutes an institutionally acceptable covenant and that is of good and sufficient financial standing (and in the case of an assignment, is otherwise Subject to the reasonable satisfaction terms of Clause 20 the Landlord) sufficient to meet its obligations as aforesaid subject always to the following provisions or such of them as may be appropriate, that is to say:
(a) The Tenant shall prior to any such alienation as aforesaid apply to the Landlord and give all reasonable information concerning the proposed transaction and concerning the proposed assignee, under-lessee, licensee or disponee as the Landlord may reasonably require;
(b) The Landlord’s consent (if given) to any such alienation shall be in writing and shall be given in such manner as the Landlord shall decide acting reasonably and the Tenant shall pay the reasonable vouched costs of the Landlord properly incurred in connection with the furnishing of such decision;
(c) In the case of an assignment to a limited liability company which is not an institutionally acceptable covenant and of good and sufficient financial standing to meet its obligations as aforesaid, it shall be deemed reasonable for the Landlord to require that a guarantor or guarantors of financial standing satisfactory to the Landlord (acting reasonably) shall join in such consent as aforesaid as surety or sureties for such Company in order jointly and severally to covenant with the Landlord in the manner described in the guarantee contained in the Schedule 8 (mutatis mutandis);
(d) In the case of an underlease, the Tenant agrees to use reasonable endeavours to ensure that the terms and conditions of any underlease remain confidential as between the Landlord and the Tenant and Seller shall not be disclosed by the Tenant to any third party entitled, without the Landlord's prior written approvalconsent in writing of the Buyer, except as required by Law;
to (ei) In the case assign, transfer or novate, all or any of an underlease, the same their respective rights and benefits under this Agreement; or (ii) make a declaration of trust in respect of or enter into any arrangement under which it agrees to hold in trust for any person all or any of its rights and benefits under this Agreement. The Seller shall be of either entitled, without the entire consent of the Demised Premises or part Buyer, to assign its rights and/or benefits under this Agreement by way of the Demised Premises PROVIDED THAT
(A) The Tenant may sub-let on a floor-by-floor basis subject security to a maximum of four (4) sub-lettings at Finance Party and any one time;
(B) The Tenant may sub-let part only of a floor subject to a cap of two sub-tenants per floor and at a minimum of 50% of the floor area of a particular floor the Landlord acknowledging that the remaining un-let space may be less than 50% of a particular floor and subject further assignment pursuant to the maximum enforcement of four (4) sub-lettings of the Demised Premises referenced in clause 4.20.1(f)(A) above and PROVIDED THAT the Tenant has obtained the necessary Fire Safety Certificate and Disability Access Certificate and any other consents or approvals for the sub-division of any floor; and
(C) such security. The Tenant Buyer shall be entitled to subassign its interest in this Contract to any person as follows: without Seller's consent if the Post-let the entire of the part of the Demised Premises comprising Nos. 4, 5 & 6 Sir ▇▇▇▇ ▇▇▇▇▇▇▇▇’▇ Quay which sub-letting shall not be considered a sub-letting for the purposes of the restrictions set out in clauses 4.20.1(f)(A) and 4.20.1(f)(B) above. and PROVIDED FURTHER that the Tenant has obtained the necessary Fire Safety Certificate and Disability Access Certificate and any other consents Completion Payment outstanding is nil; or approvals for the sub-division of any floor. In the case of such underlease the same shall be made without taking a fine or premium at the then full current open market rent and the under-lessee shall, if required by the Landlord, enter into a direct covenant otherwise with the Landlord to perform and observe all the covenants (other than that for payment of the rents hereby reserved) and conditions herein contained and every such under-lease shall also be subject to the following conditions, that is to say that it shall contain:-
(i) provisions for the review of the rent thereby reserved (which the Tenant hereby covenants to operate and enforce) corresponding except as to terms and dates but in all other respects (mutatis mutandis) with the rent review provisions contained in this Lease;
(ii) a covenant by the undertenant (which the Tenant hereby covenants to use reasonable endeavours to enforce) prohibiting the undertenant from doing or suffering any act or thing upon or in relation to the Demised Premises in breach of, the provisions of this Lease;
(iii) Any such sublease shall absolutely cease and determine if for whatever reason (including forfeiture) this Lease is terminated or expires (but the Landlord acknowledges that this shall be subject to any sub-tenant statutory rights which any sub-tenant may have entitling the sub-tenant to remain in occupation) (without prejudice to any claims the Landlord may have against the Tenant if such rights arise due to any breach of the Tenant's covenants in this Lease) and the Tenant shall procure that the sub-lessee vacates the premises underlet to it at the expiration or sooner determination of the Term;
(iv) a condition for re-entry on breach of any covenant by the undertenant;
(v) the same restrictions as to alienation, assignment, underletting, parting with or sharing the possession or occupation of the premises underlet; and
(vi) a confirmation of renunciation of statutory renewal rights;
(f) To enforce at the Tenant’s own expense the performance and observance by every such undertenant of the covenants, provisions and conditions of the under-lease and not, at any time, either expressly or by implication, to waive any breach of the same;
(g) Not to agree any reviewed rent with the undertenant or any rent payable on any renewal thereof without the prior written consent of the Landlord such consent Seller, not to be unreasonably withheld or delayed but if the proposed assignee is demonstrably capable of fulfilling the Buyer's remaining obligations in this Agreement for the remainder of the Contract Period, provided always that nothing herein shall prevent the Tenant from complying with any independent determination process provided for in proposed assignee undertakes to the rent review clauses Seller (by way of direct undertaking to the Seller on terms acceptable to the Seller, acting reasonably) to implement the Buyer’s obligations under this Agreement or, at the Seller’s request, to take a novation of the sub-lease;
(h) Not Buyer's rights and obligations under this Agreement, in terms of an agreement that is acceptable to produce evidence ofthe Seller, refer to acting reasonably. All costs properly and reasonably incurred by the Seller in terms of this Clause 19.3.2 shall be met by the Buyer. Transfer of Specified Project Site The Seller shall be prohibited from transferring its interest in all or seek to rely upon during any rent review pursuant to Schedule 4 the terms, conditions and/or existence of any under-letting(s) of part or all of the Demised Premises created by the Tenant including but not limited to the rent payable Specified Project Site or assigning its interest under any such under-letting(s);
(i) Not to vary this Agreement in whole or in part, save in compliance with the terms of this Clause 20. The Seller shall be obliged to transfer its interest in this Contract to any permitted under-lease without party (in this Clause 20, "the Assignee"), that is simultaneously acquiring the Seller's interest in all or any part of the Specified Project Site (in this Clause 20, "the Transferred Part") subject to the following provisions: the Seller shall provide the Buyer with not less than 30 Business Days' prior written notice of the proposed transfer (in this Clause 20, "the Assignment"), including details of the Assignee, such period to allow for Parties and the Assignee to complete the remainder of the steps required pursuant to this Clause 20.2; the Assignee shall undertake to the Buyer (by way of direct deed of covenant with the Buyer on terms acceptable to the Buyer, acting reasonably) to implement the Seller’s obligations under this Agreement insofar as relating to the Transferred Part (including, in the event this Agreement is a Secured Contract, but not by way of limitation the covenants at Clause 13); the Seller shall exhibit a letter of non-crystallisation from the holder of each and every floating charge affecting the Transferred Part, such letter to be in the chargeholder's usual form and to include consent to the Assignee entering into any documentation that it enters into pursuant to this Clause 20.2 that would require the consent of the Landlord chargeholder; The Seller shall be responsible for ensuring that all obligations under the Governing Code that relate to a change in identity of the party that manages the Specified Project are complied with as part of the transfer of the Transferred Part, and that the Buyer is provided with evidence thereof; and All costs properly and reasonably incurred by the Buyer in terms of this Clause 20.2 shall be met by the Seller. Change in Control If there is no Change in Control Restriction then the consent of the Seller shall not be required in respect of a Change in Control of the Buyer; If there is a Change in Control Restriction then a Change in Control in the Buyer can take place: without Seller's consent if the Post-Completion Payment outstanding is nil; or otherwise with the consent of the Seller, not to be unreasonably withheld or delayed.
(j) For delayed if the avoidance Buyer following such proposed Change in Control is demonstrably capable of doubt, fulfilling the Buyer's remaining obligations in this Agreement for the case of an assignment, underletting, parting with possession or occupation remainder of the Demised Premises or any part thereof or sufferance Contract Period. All costs properly and reasonably incurred by the Seller in terms of any person to occupy the Demised Premises or any part thereof as a licensee or concessionaire (an “Alienation”), it this Clause 21.2.2 shall be reasonable for the Landlord to withhold consent to any such Alienation of the Demised Premises or part thereof where the Alienation would, in the reasonable opinion of the Landlord, have the effect or give rise to a termination of the Landlord’s Option to Tax. PROVIDED ALWAYS THAT it shall not be reasonable for the Landlord to withhold such consent in circumstances where prior to any such proposed Alienation the Tenant pays or procures the payment to the Landlord of:
(i) an amount equal to the amount of any VAT clawback or VAT payment obligations suffered met by the Landlord Buyer. Further Assurance Each Party shall execute such documents and do such acts and things as a result of such Alienation (hereinafter referred to in this Lease as a VAT Adjustment); and
(ii) because the VAT Adjustment payable under sub-clause (i) above is or other Party may be subject to tax in the hands of the Landlord, such further sum (the “Additional Payment”) as will leave the Landlord in at least the same position as if the VAT Adjustment had not been subject to tax and reasonably require for the purpose of calculating the Additional Payment it shall be assumed, if not otherwise the case, that the VAT Adjustment and the Additional Payment constitute the sole income of the Landlord and that the Landlord has no deductible expenses, losses or allowances for tax purposes for offset or reduction against such income or receipt and the Tenant shall keep the Landlord indemnified in respect of any such VAT Adjustment and Additional Payment. In respect of the above, the Landlord agrees to furnish giving effect to the Tenant a calculation provisions of any sums due (the “Statement”) signed by the Landlord’s auditors or tax advisors and such Statement shall (save in the case of manifest error) be final and binding on the parties. All amounts shall be paid in advance to the Landlord prior to issuing consent to any proposed alienationthis Agreement.
Appears in 2 contracts
Sources: Pending Issuance Unit Purchase Agreement, Pending Issuance Unit Purchase Agreement
Alienation. Not 9.1 The Association shall ensure that none of its Members or Sub-Members shall in any manner Alienate or transfer a Land Unit unless:
9.1.1 the proposed transferee, new shareholder of a Company, new members of a Close Corporation or new trustees of a Trust have irrevocably bound themselves in writing to assign, transfer, underlet, or part with the possession or occupation become ipso facto a Sub-Member of the Demised Premises Association and a member of a Sub- Association and to observe the Constitution, as well as the SAC or MCR applicable, as the case may be, for the duration of his ownership of any part thereof or suffer any person Land Unit;
9.1.2 the Association has given its prior written consent thereto and has issued a clearance certificate that all amounts owing to occupy the Demised Premises or any part thereof as a licensee BUT SO THAT NOTWITHSTANDING the foregoing the Landlord shall not unreasonably withhold or delay its consent to an assignment of the entire of the Demised Premises or an underletting of the entire or part of the Demised Premises to an assignee/underlessee that constitutes an institutionally acceptable covenant Association and Sub-Association by such Owner, have been paid in full and that the Sub-Member/Occupant is not in breach of good this Constitution, SAC, and sufficient financial standing (and in MCR, as the case of an assignment, is otherwise to the reasonable satisfaction of the Landlord) sufficient to meet its obligations as aforesaid subject always to the following provisions or such of them as may be appropriate, that is to say:
(a) The Tenant shall prior to any such alienation as aforesaid apply to the Landlord and give all reasonable information concerning the proposed transaction and concerning the proposed assignee, under-lessee, licensee or disponee as the Landlord may reasonably requirebe;
9.1.3 the written consent of Combined Developers (bPty) The Landlord’s Ltd, which consent (if given) to any such alienation shall will not be in writing and shall be given in such manner as the Landlord shall decide acting reasonably and the Tenant shall pay the reasonable vouched costs of the Landlord properly incurred in connection with the furnishing of such decision;
(c) In the case of an assignment to a limited liability company which unreasonably withheld, has been obtained. This condition is not an institutionally acceptable covenant and of good and sufficient financial standing to meet its obligations as aforesaid, it shall be deemed reasonable for the Landlord to require that a guarantor or guarantors of financial standing satisfactory to the Landlord (acting reasonably) shall join in such consent as aforesaid as surety or sureties for such Company in order jointly and severally to covenant with the Landlord in the manner described in the guarantee contained in the Schedule 8 (mutatis mutandis);
(d) In the case of an underlease, the Tenant agrees to use reasonable endeavours to ensure that the terms and conditions of any underlease remain confidential as between the Landlord standards and the Tenant condition of the development is upheld and safeguarded as intended by the Developer. The deeds office will not transfer a Land Unit without this consent.
9.1.4 The provisions of clause 9.1 shall apply mutatis mutandis to any Alienation or transfer of an undivided share in any Land Unit.
9.2 In the event that the Association has ceased to function and the Member is unable to obtain the consent referred to in clause 9.1.2, the Member must obtain consent from at least 60% (sixty percent) of the Members of the Association, which consent shall be deemed to be consent of the Association.
9.3 Restrictions will be registered against the title deeds of all Land Units in order to give effect to the terms of this clause 9. The Members and Sub-Members shall however be bound by this Clause whether or not such restrictions are registered in the Cape Town Deeds Registry.
9.4 Each Sub-Member shall comply with all conditions imposed by the Local Authority or any other statutory body relating to Land Units and shall not be disclosed by solely responsible for non-compliance with such conditions.
9.5 It is recorded that only the Tenant to any third party without the Landlord's prior written approval, except as required by Law;
Association and/or Sub-Association and Combined Developers (ePty) In the case of an underlease, the same shall be of either the entire of the Demised Premises or part of the Demised Premises PROVIDED THAT
(A) The Tenant may sub-let on a floor-by-floor basis subject to a maximum of four (4) sub-lettings at any one time;
(B) The Tenant may sub-let part only of a floor subject to a cap of two sub-tenants per floor and at a minimum of 50% of the floor area of a particular floor the Landlord acknowledging that the remaining un-let space may be less than 50% of a particular floor and subject further to the maximum of four (4) sub-lettings of the Demised Premises referenced in clause 4.20.1(f)(A) above and PROVIDED THAT the Tenant has obtained the necessary Fire Safety Certificate and Disability Access Certificate and any other consents or approvals for the sub-division of any floor; and
(C) The Tenant shall Ltd will be entitled to sub-let the entire charge any fees or costs in respect of the part issuing of the Demised Premises comprising Nosclearance certificate. 4, 5 & 6 Sir ▇▇▇▇ ▇▇▇▇▇▇▇▇’▇ Quay which sub-letting shall not be considered a sub-letting for the purposes of the restrictions set out in clauses 4.20.1(f)(A) and 4.20.1(f)(B) above. and PROVIDED FURTHER that the Tenant has obtained the necessary Fire Safety Certificate and Disability Access Certificate and any other consents or approvals for the sub-division of any floor. In the case of such underlease the same shall be made without taking a fine or premium at the then full current open market rent and the under-lessee shall, if required by the Landlord, enter into a direct covenant with the Landlord to perform and observe all the covenants (other than that for payment of the rents hereby reserved) and conditions herein contained and every such under-lease shall also be subject to the following conditions, that is to say that it shall contain:-
(i) provisions for the review of the rent thereby reserved (which the Tenant hereby covenants to operate and enforce) corresponding except as to terms and dates but in all other respects (mutatis mutandis) with the rent review provisions contained in this Lease;
(ii) a covenant by the undertenant (which the Tenant hereby covenants to use reasonable endeavours to enforce) prohibiting the undertenant from doing or suffering any act or thing upon or in relation to the Demised Premises in breach of, the provisions of this Lease;
(iii) Any such sublease shall absolutely cease and determine if for whatever reason (including forfeiture) this Lease is terminated or expires (but the Landlord acknowledges that this shall be subject to any sub-tenant statutory rights which any sub-tenant may have entitling the sub-tenant to remain in occupation) (without prejudice to any claims the Landlord may have against the Tenant if such rights arise due to any breach of the Tenant's covenants in this Lease) and the Tenant shall procure that the sub-lessee vacates the premises underlet to it at the expiration or sooner determination of the Term;
(iv) a condition for re-entry on breach of any covenant by the undertenant;
(v) the same restrictions as to alienation, assignment, underletting, parting with or sharing the possession or occupation of the premises underlet; and
(vi) a confirmation of renunciation of statutory renewal rights;
(f) To enforce at the Tenant’s own expense the performance and observance by every such undertenant of the covenants, provisions and conditions of the under-lease and not, at any time, either expressly or by implication, to waive any breach of the same;
(g) Not to agree any reviewed rent with the undertenant or any rent payable on any renewal thereof without the prior written consent of the Landlord such consent not to be unreasonably withheld or delayed but provided always that nothing herein shall prevent the Tenant from complying with any independent determination process provided for in the rent review clauses of the sub-lease;
(h) Not to produce evidence of, refer to or seek to rely upon during any rent review pursuant to Schedule 4 the terms, conditions and/or existence of any under-letting(s) of part or all of the Demised Premises created by the Tenant including but not limited to the rent payable under any such under-letting(s);
(i) Not to vary the terms of any permitted under-lease without the prior written consent of the Landlord not to be unreasonably withheld or delayed.
(j) For the avoidance of doubt, in doubt it is recorded that the case of an assignment, underletting, parting with possession or occupation of Developer will not be liable for the Demised Premises or any part thereof or sufferance payment of any person to occupy the Demised Premises such costs or any part thereof as a licensee or concessionaire (an “Alienation”), it shall be reasonable for the Landlord to withhold consent to any such Alienation of the Demised Premises or part thereof where the Alienation would, in the reasonable opinion of the Landlord, have the effect or give rise to a termination of the Landlord’s Option to Tax. PROVIDED ALWAYS THAT it shall not be reasonable for the Landlord to withhold such consent in circumstances where prior to any such proposed Alienation the Tenant pays or procures the payment to the Landlord of:
(i) an amount equal to the amount of any VAT clawback or VAT payment obligations suffered by the Landlord as a result of such Alienation (hereinafter referred to in this Lease as a VAT Adjustment); and
(ii) because the VAT Adjustment payable under sub-clause (i) above is or may be subject to tax in the hands of the Landlord, such further sum (the “Additional Payment”) as will leave the Landlord in at least the same position as if the VAT Adjustment had not been subject to tax and for the purpose of calculating the Additional Payment it shall be assumed, if not otherwise the case, that the VAT Adjustment and the Additional Payment constitute the sole income of the Landlord and that the Landlord has no deductible expenses, losses or allowances for tax purposes for offset or reduction against such income or receipt and the Tenant shall keep the Landlord indemnified fees in respect of any such VAT Adjustment each and Additional Payment. In respect every transfer of a Land Unit to be registered for the above, first time from the Landlord agrees Developer to furnish to the Tenant a calculation of any sums due (the “Statement”) signed by the Landlord’s auditors or tax advisors and such Statement shall (save in the case of manifest error) be final and binding on the parties. All amounts shall be paid in advance to the Landlord prior to issuing consent to any proposed alienationpurchaser.
Appears in 2 contracts
Sources: Turnkey Deed of Sale, Turnkey Deed of Sale
Alienation. Not to assign, transfer, underlet, or part with the possession or occupation 7.1 Until a Deed of Conveyance is executed and registered in favour of the Demised Premises Purchaser, the Purchaser shall not be entitled to mortgage, encumber, lease or otherwise dispose of, deal with or alienate the said Unit or any portion thereof and/or any right or benefit of the Purchaser in the said Unit and/or under this Agreement.
7.2 The Purchaser may however, enter into any agreement to nominate, assign or transfer the allotment of the said Unit only if all the following conditions are complied with:-
7.2.1 There has been no default whatsoever by or on behalf of the Purchaser in compliance with and/or performance of any of his covenants, undertakings and obligations under this Agreement or otherwise.
7.2.2 The Purchaser has made full payment of the Agreed Consideration, the Additional Payments and Mandatory Deposits / Advance / Extra Costs till then payable.
7.2.3 The Purchaser making payment to the Vendor/Builder, Transfer Charges/Nomination fees equivalent to 5% (Five percent) plus taxes as applicable of the total transfer consideration payable by the Assignee or Nominee as noted in the Nomination Agreement or the Agreed Consideration mentioned in the Fifth Schedule Part-I of the Sale Agreement signed between the Purchaser & the Vendor/Builder, whichever is higher. In case of assignment and/or nomination in favour of any of the Family Members of the Purchaser as defined in Clause A (xiv) hereinabove of the said Sale Agreement, the transfer charges/nomination fees shall be Rs.25,000/- (Rupees Twenty Five Thousand only) plus taxes as applicable.
7.2.4 Prior consent in writing is obtained from the Vendor/Builder of the proposed transfer / disposal / nomination or alienation of the said Unit or any part thereof or suffer thereof. PROVIDED HOWEVER that the Vendor/Builder shall in its absolute discretion be entitled to refuse consent to nomination / transfer / disposal, etc. of the said Unit to any person to occupy the Demised Premises or any part thereof as not being a licensee BUT SO THAT NOTWITHSTANDING the foregoing the Landlord shall not unreasonably withhold or delay its consent to an assignment Family Member of the entire Purchaser if the Purchaser intends to make such nomination / transfer / disposal, etc. within a period of 1 (one) year from the date of this Agreement, and any nomination / transfer / disposal made in contravention / violation of such refusal to give consent shall be void ab initio.
7.3 After completion of the Demised Premises or an underletting execution and registration of the entire or part Deed of Conveyance in favour of the Demised Premises to an assignee/underlessee that constitutes an institutionally acceptable covenant and that is Purchaser, the Purchaser may mortgage, encumber, lease out or otherwise deal with or dispose of good and sufficient financial standing (and in or assign or alienate the case of an assignment, is otherwise to the reasonable satisfaction of the Landlord) sufficient to meet its obligations as aforesaid said Unit subject always to the following provisions or such of them as may be appropriate, that is to sayconditions:
(a) 7.3.1 The Tenant shall prior to any such alienation as aforesaid apply to the Landlord and give all reasonable information concerning the proposed transaction and concerning the proposed assignee, under-lessee, licensee or disponee as the Landlord may reasonably require;
(b) The Landlord’s consent (if given) to any such alienation said Unit shall be impartible, indivisible and held in writing and shall be given in such manner as the Landlord shall decide acting reasonably one lot, and the Tenant same shall pay the reasonable vouched costs not and cannot be partitioned or dismembered in part or parts. In case of sale of the Landlord properly incurred said Unit in connection with the furnishing favour of such decision;
(c) In the case of an assignment to a limited liability company which is not an institutionally acceptable covenant and of good and sufficient financial standing to meet its obligations as aforesaid, it shall be deemed reasonable for the Landlord to require that a guarantor or guarantors of financial standing satisfactory to the Landlord (acting reasonably) shall join in such consent as aforesaid as surety or sureties for such Company in order jointly and severally to covenant with the Landlord in the manner described in the guarantee contained in the Schedule 8 (mutatis mutandis);
(d) In the case of an underlease, the Tenant agrees to use reasonable endeavours to ensure that the terms and conditions of any underlease remain confidential as between the Landlord and the Tenant and shall not be disclosed by the Tenant to any third party without the Landlord's prior written approval, except as required by Law;
(e) In the case of an underleasemore than one buyer, the same shall be of either the entire done in their favour jointly and in undivided shares.
7.3.2 The transfer of the Demised Premises or part said Unit by the Purchaser shall not be in any manner inconsistent with the terms of this Agreement and/or the Deed of Conveyance and the covenants contained herein and/or in the Deed of Conveyance shall be covenants which run with the Land and/or transfer. One of the Demised Premises PROVIDED THAT
(A) The Tenant may sub-let conditions on a floor-by-floor basis subject which the said Unit is being sold to a maximum of four (4) sub-lettings at any one time;
(B) The Tenant may sub-let part only of a floor subject to a cap of two sub-tenants per floor and at a minimum of 50% the Purchaser is that all of the floor area of a particular floor person(s) to whom the Landlord acknowledging that Purchaser may transfer/alienate the remaining un-let space may said Unit shall be less than 50% of a particular floor bound by the same terms, conditions, covenants, stipulations, undertakings and subject further obligations as applicable to the maximum Purchaser by law and/or by virtue of four (4) sub-lettings this Agreement and/or the Deed of Conveyance.
7.3.3 All dues including outstanding amounts, interest, Maintenance Charges, electricity charges, Govt. Authorities taxes and other taxes etc. relating to the said Unit payable to the Vendor/Builder, the Maintenance Agency, the Association and the Govt. Authorities are paid by the Purchaser in full prior to the proposed transfer/alienation. Such dues, if any, shall in any event, be and remain a primary charge on the said Unit.
7.4 In case of death of any Purchaser prior to the execution and registration of the Demised Premises referenced Deed of Conveyance in clause 4.20.1(f)(A) above and PROVIDED THAT the Tenant has obtained the necessary Fire Safety Certificate and Disability Access Certificate and any other consents or approvals for the sub-division of any floor; and
(C) The Tenant his favour, his legal representatives shall be entitled to sub-let obtain the entire Deed of the part Conveyance in their favour subject to production of the Demised Premises comprising Nos. 4, 5 & 6 Sir ▇▇▇▇ ▇▇▇▇▇▇▇▇’▇ Quay which sub-letting shall not necessary documents of representation to title as may be considered a sub-letting for the purposes of the restrictions set out in clauses 4.20.1(f)(A) and 4.20.1(f)(B) above. and PROVIDED FURTHER that the Tenant has obtained the necessary Fire Safety Certificate and Disability Access Certificate and any other consents or approvals for the sub-division of any floor. In the case of such underlease the same shall be made without taking a fine or premium at the then full current open market rent and the under-lessee shall, if required by the Landlord, enter into a direct covenant with the Landlord to perform and observe all the covenants (other than that for payment of the rents hereby reserved) and conditions herein contained and every such under-lease shall also be subject to the following conditions, that is to say that it shall contain:-
(i) provisions for the review of the rent thereby reserved (which the Tenant hereby covenants to operate and enforce) corresponding except as to terms and dates but in all other respects (mutatis mutandis) with the rent review provisions contained Vendor/Builder in this Lease;
(ii) a covenant by the undertenant (which the Tenant hereby covenants to use reasonable endeavours to enforce) prohibiting the undertenant from doing or suffering any act or thing upon or in relation to the Demised Premises in breach ofregard, the provisions including probate, letters of this Lease;
(iii) Any such sublease shall absolutely cease administration and determine if for whatever reason (including forfeiture) this Lease is terminated or expires (but the Landlord acknowledges that this shall be subject to any sub-tenant statutory rights which any sub-tenant may have entitling the sub-tenant to remain in occupation) (without prejudice to any claims the Landlord may have against the Tenant if such rights arise due to any breach of the Tenant's covenants in this Lease) and the Tenant shall procure that the sub-lessee vacates the premises underlet to it at the expiration or sooner determination of the Term;
(iv) a condition for re-entry on breach of any covenant by the undertenant;
(v) the same restrictions as to alienation, assignment, underletting, parting with or sharing the possession or occupation of the premises underlet; and
(vi) a confirmation of renunciation of statutory renewal rights;
(f) To enforce at the Tenant’s own expense the performance and observance by every such undertenant of the covenants, provisions and conditions of the under-lease and not, at any time, either expressly or by implication, to waive any breach of the same;
(g) Not to agree any reviewed rent with the undertenant or any rent payable on any renewal thereof without the prior written consent of the Landlord such consent not to be unreasonably withheld or delayed but provided always that nothing herein shall prevent the Tenant from complying with any independent determination process provided for in the rent review clauses of the sub-lease;
(h) Not to produce evidence of, refer to or seek to rely upon during any rent review pursuant to Schedule 4 the terms, conditions and/or existence of any under-letting(s) of part or all of the Demised Premises created by the Tenant including but not limited to the rent payable under any such under-letting(s);
(i) Not to vary the terms of any permitted under-lease without the prior written consent of the Landlord not to be unreasonably withheld or delayedsuccession certificate.
(j) For the avoidance of doubt, in the case of an assignment, underletting, parting with possession or occupation of the Demised Premises or any part thereof or sufferance of any person to occupy the Demised Premises or any part thereof as a licensee or concessionaire (an “Alienation”), it shall be reasonable for the Landlord to withhold consent to any such Alienation of the Demised Premises or part thereof where the Alienation would, in the reasonable opinion of the Landlord, have the effect or give rise to a termination of the Landlord’s Option to Tax. PROVIDED ALWAYS THAT it shall not be reasonable for the Landlord to withhold such consent in circumstances where prior to any such proposed Alienation the Tenant pays or procures the payment to the Landlord of:
(i) an amount equal to the amount of any VAT clawback or VAT payment obligations suffered by the Landlord as a result of such Alienation (hereinafter referred to in this Lease as a VAT Adjustment); and
(ii) because the VAT Adjustment payable under sub-clause (i) above is or may be subject to tax in the hands of the Landlord, such further sum (the “Additional Payment”) as will leave the Landlord in at least the same position as if the VAT Adjustment had not been subject to tax and for the purpose of calculating the Additional Payment it shall be assumed, if not otherwise the case, that the VAT Adjustment and the Additional Payment constitute the sole income of the Landlord and that the Landlord has no deductible expenses, losses or allowances for tax purposes for offset or reduction against such income or receipt and the Tenant shall keep the Landlord indemnified in respect of any such VAT Adjustment and Additional Payment. In respect of the above, the Landlord agrees to furnish to the Tenant a calculation of any sums due (the “Statement”) signed by the Landlord’s auditors or tax advisors and such Statement shall (save in the case of manifest error) be final and binding on the parties. All amounts shall be paid in advance to the Landlord prior to issuing consent to any proposed alienation.
Appears in 2 contracts
Sources: Sale Agreement, Sale Agreement
Alienation. Not to assign, transfer, underlet, or part with the possession or occupation of the Demised Premises or any part thereof or suffer any person to occupy the Demised Premises or any part thereof as a licensee BUT SO THAT NOTWITHSTANDING the foregoing the Landlord shall not unreasonably withhold or delay its consent to an assignment of the entire of the Demised Premises or an underletting of the entire or part of the Demised Premises to an assignee/underlessee that constitutes an institutionally acceptable covenant and that is of good and sufficient financial standing (and in the case of an assignment, is otherwise to the reasonable satisfaction of the Landlord) sufficient to meet its obligations as aforesaid subject always to the following provisions or such of them as may be appropriate, that is to say:
(a) The Tenant shall prior to any such alienation as aforesaid apply to the Landlord and give all reasonable information concerning the proposed transaction and concerning the proposed assignee, under-lessee, licensee or disponee as the Landlord may reasonably require;
(b) The Landlord’s consent (if given) to any such alienation shall be in writing and shall be given in such manner as the Landlord shall decide acting reasonably and the Tenant shall pay the reasonable vouched costs of the Landlord properly incurred in connection with the furnishing of such decision;
(c) In the case of an assignment to a limited liability company which is not an institutionally acceptable covenant and of good and sufficient financial standing to meet its obligations as aforesaid, it shall be deemed reasonable for the Landlord to require that a guarantor or guarantors of financial standing satisfactory to the Landlord (acting reasonably) shall join in such consent as aforesaid as surety or sureties for such Company in order jointly and severally to covenant with the Landlord in the manner described in the guarantee contained in the Schedule 8 (mutatis mutandis);
(d) In the case of an underlease, the Tenant agrees to use reasonable endeavours to ensure that the terms and conditions of any underlease remain confidential as between the Landlord and the Tenant and shall not be disclosed by the Tenant to any third party without the Landlord's prior written approval, except as required by Law;
(e) In the case of an underlease, the same shall be of either the entire of the Demised Premises or part of the Demised Premises PROVIDED THAT
(A) The Tenant may sub-let on a floor-by-floor basis subject to a maximum of four (4) sub-lettings at any one time;
(B) The Tenant may sub-let part only of a floor subject to a cap of two sub-tenants per floor and at a minimum of 50% of the floor area of a particular floor the Landlord acknowledging that the remaining un-let space may be less than 50% of a particular floor and subject further to the maximum of four (4) sub-lettings of the Demised Premises referenced in clause 4.20.1(f)(A) above and PROVIDED THAT the Tenant has obtained the necessary Fire Safety Certificate and Disability Access Certificate and any other consents or approvals for the sub-division of any floor; and
(C) 1. The Tenant shall be entitled to assign or sub-lease its rights and/or obligations under this Lease, in whole or any part thereof, to any third party on serving written notice on the Landlord.
2. The Tenant may also assign its interest in the site of any sub-station (and thereby partially assign its interest in this Lease) or sub-let the entire or share possession or occupation of the part of the Demised Premises comprising Nos. 4, 5 & 6 Sir ▇▇▇▇ ▇▇▇▇▇▇▇▇’▇ Quay which any such sub-letting station without obtaining the Landlord’s consent or approval but subject to written notification being given to the Landlord.
3. The Tenant shall not be considered a sub-letting for entitled without obtaining the purposes of Landlord’s consent or approval to assign its interest as tenant under this Lease in security and shall be entitled without obtaining the restrictions set out Landlord’s consent or approval to charge its interest hereunder in clauses 4.20.1(f)(A) and 4.20.1(f)(B) abovewhole or in part, fixed or floating.
4. and PROVIDED FURTHER It is hereby acknowledged that the Tenant has obtained may require funding from a bank or other financial institution (the necessary Fire Safety Certificate “Funder”) to construct and Disability Access Certificate operate the Development and any other consents or approvals for that in arranging such finance the sub-division Funder may require as a condition of any floor. In the case availability of such underlease the same shall be made without taking a fine or premium at the then full current open market rent and the under-lessee shall, if required by the Landlord, that finance to enter into a direct covenant agreement with the Landlord to perform and observe cover any or all the covenants (other than that for payment of the rents hereby reserved) following matters and conditions herein contained and every such under-lease shall also be any related ancillary matters reasonably requested by the Funder subject to the following conditions, that is Landlord’s proper and reasonable fees and outlays in doing so being met by the Tenant :-
1. an acknowledgement by the Landlord of any security taken by the Funder over the Tenant and its assets;
2. an obligation to say that it shall contain:-
(i) provisions for give notice to the review Funder of any intended exercise of the rent thereby reserved (which the Tenant hereby covenants Landlord’s rights to operate and enforce) corresponding except as to terms and dates but in all other respects (mutatis mutandis) with the rent review provisions contained in terminate this Lease;
(ii) 3. the ability of a covenant receiver appointed by the undertenant (which Funder, pursuant to a charge in favour of the Tenant hereby covenants Funder following a default by the Tenants under its finance agreement with the Funder, to use reasonable endeavours to enforce) prohibiting the undertenant from doing or suffering any act or thing upon or in relation to the Demised Premises in breach of, the provisions of assign this Lease;
(iii) Any such sublease shall absolutely cease and determine if for whatever reason (including forfeiture) this Lease is terminated or expires (but 4. a step in right to allow the Funder to ensure that the obligations of the Tenant are complied with so as to prevent any circumstances arising under which the Landlord acknowledges could seek to terminate this Lease;
5. an acknowledgement by the Funder that if it exercises its step in rights then it will be on the basis that it is assuming all of the rights and obligations of the Tenant under this shall be subject to any sub-tenant statutory rights which any sub-tenant may have entitling the sub-tenant to remain in occupation) (Lease; and
6. without prejudice to any claims the foregoing generality, a clause providing that if the Landlord may have against the Tenant if such exercises its rights arise due to any breach of the Tenant's covenants in irritate this Lease) and the Tenant shall procure that the sub-lessee vacates the premises underlet to it at the expiration or sooner determination of the Term;
(iv) a condition for re-entry on breach of any covenant by the undertenant;
(v) the same restrictions as to alienation, assignment, underletting, parting with or sharing the possession or occupation of the premises underlet; and
(vi) a confirmation of renunciation of statutory renewal rights;
(f) To enforce at the Tenant’s own expense the performance and observance by every such undertenant of the covenants, provisions and conditions of the under-lease and not, at any time, either expressly or by implication, to waive any breach of the same;
(g) Not to agree any reviewed rent with the undertenant or any rent payable on any renewal thereof without the prior written consent of the Landlord such consent not to be unreasonably withheld or delayed but provided always that nothing herein shall prevent the Tenant from complying with any independent determination process provided for in the rent review clauses of the sub-lease;
(h) Not to produce evidence of, refer to or seek to rely upon during any rent review Lease pursuant to Schedule 4 the terms, conditions and/or existence of any under-letting(s) of part or all of the Demised Premises created by the Tenant including but not limited its rights to the rent payable under any such under-letting(s);
(i) Not to vary the terms of any permitted under-lease without the prior written consent of the Landlord not to be unreasonably withheld or delayed.
(j) For the avoidance of doubt, in the case of an assignment, underletting, parting with possession or occupation of the Demised Premises or any part thereof or sufferance of any person to occupy the Demised Premises or any part thereof as a licensee or concessionaire (an “Alienation”), it shall be reasonable for the Landlord to withhold consent to any such Alienation of the Demised Premises or part thereof where the Alienation would, in the reasonable opinion of the Landlord, have the effect or give rise to a termination of the Landlord’s Option to Tax. PROVIDED ALWAYS THAT it shall not be reasonable for the Landlord to withhold such consent in circumstances where prior to any such proposed Alienation the Tenant pays or procures the payment to the Landlord of:
(i) an amount equal to the amount of any VAT clawback or VAT payment obligations suffered by the Landlord as a result of such Alienation (hereinafter referred to in this Lease as a VAT Adjustment); and
(ii) because the VAT Adjustment payable under sub-clause (i) above is or may be subject to tax in the hands of the Landlord, such further sum (the “Additional Payment”) as will leave the Landlord in at least the same position as do so then if the VAT Adjustment had not been subject to tax and for the purpose of calculating the Additional Payment it shall be assumed, if not otherwise the case, that the VAT Adjustment and the Additional Payment constitute the sole income of the Landlord and that the Landlord has no deductible expenses, losses or allowances for tax purposes for offset or reduction against such income or receipt and the Tenant shall keep the Landlord indemnified in respect of any such VAT Adjustment and Additional Payment. In respect of the aboveFunder so requires, the Landlord agrees to furnish will on the date of such irritancy grant to the Tenant Funder, and the Funder will on such date accept, a calculation new Lease of any sums due (the “Statement”) signed by Property for the Landlord’s auditors or tax advisors then unexpired duration of this Lease and such Statement shall (save in the case of manifest error) be final and binding otherwise on the parties. All amounts shall be paid in advance terms mutatis mutandis to the Landlord prior to issuing consent to any proposed alienationthis Lease.
Appears in 1 contract
Sources: Lease Agreement
Alienation. (a) Not to assign, transfer, underletsub-let, mortgage, charge (including lodgement of this Lease with anyone as security) or share or part with the possession or occupation of the Demised Premises or any part thereof of it or suffer any person to occupy the Demised Premises or any part thereof of it as a licensee BUT SO THAT NOTWITHSTANDING licensee, franchisee or concessionaire.
(b) Notwithstanding the foregoing provisions of clause 4.14(a), the Landlord shall not unreasonably withhold or delay its consent to an assignment the mortgaging or charging (including lodging this Lease with anyone as security) of the entire of the Demised Premises with a recognised financial institution or to an underletting assignment of the entire or part to a sub-letting of the entire of the Demised Premises to an assignee/underlessee that constitutes an institutionally assignee or sub-tenant reasonably acceptable covenant to the Landlord (and that is being of good and sufficient financial standing (and in the case of an assignment, is otherwise reasonably satisfactory to the reasonable satisfaction of the Landlord) sufficient to meet its obligations as aforesaid and otherwise subject always to the following provisions or such of them as may be appropriate, that is to say:.
(ai) The Tenant shall prior to any such alienation as aforesaid apply to the Landlord in writing and give all reasonable information as the Landlord may require concerning the proposed transaction and concerning the proposed assignee, undersub-lessee, licensee tenant or disponee as the Landlord may reasonably require;disponee.
(bii) The Landlord’s consent (if given) to any such alienation shall be in writing and shall be given in such manner as the Landlord shall decide acting reasonably and the Tenant shall pay the proper and reasonable vouched costs of the Landlord properly incurred in connection with the consideration of each such application and (where applicable) the furnishing of such decision;consent.
(ciii) Without prejudice to any other grounds on which the Landlord may be entitled to withhold its consent to any such alienation, it shall be deemed a reasonable ground for the withholding of Landlord’s consent that:
(A) the Tenant is in breach of any of the Tenant’s covenants and conditions contained in this Lease; or
(B) the proposed assignee, sub-tenant or disponee intends to alter the Permitted Use or any part thereof in a manner which would be prohibited under the provisions of clause 4.12; or
(C) the proposed assignee, sub-tenant or disponee has or may have immunity from legal proceedings in relation to any breach of any covenant or condition in this Lease or any sub-lease; or
(D) such alienation causes a VAT cost for the Landlord, either as a VAT clawback or as a VAT liability; or
(E) the proposed assignee, sub-tenant or disponee does not intend to occupy the Demised Premises.
(iv) In the case of an assignment to a limited liability company which is not an institutionally acceptable covenant and of good and sufficient financial standing to meet its obligations as aforesaidcompany, if it shall be deemed reasonable for reasonable, the Landlord to may require that a guarantor surety (or guarantors sureties) of financial standing satisfactory to the Landlord (acting reasonably) shall join in such the relevant consent as aforesaid as surety or sureties for such Company a company in order jointly and severally to covenant with the Landlord in the manner described in the guarantee contained in the Schedule 8 5 (mutatis mutandis);) or in such other form as the Landlord may from time to time require.
(dv) In the case of an underlease, the Tenant agrees to use reasonable endeavours to ensure that the terms and conditions of any underlease remain confidential as between the Landlord and the Tenant and shall not be disclosed by the Tenant to any third party without the Landlord's prior written approval, except as required by Law;
(e) In the case of an underleasesub-lease, the same shall be of either the entire of the Demised Premises or part of the Demised Premises PROVIDED THAT
(A) The Tenant may sub-let on a floor-by-floor basis subject to a maximum of four (4) sub-lettings at any one time;
(B) The Tenant may sub-let part only of a floor subject to a cap of two sub-tenants per floor and at a minimum of 50% of the floor area of a particular floor the Landlord acknowledging that the remaining un-let space may be less than 50% of a particular floor and subject further to the maximum of four (4) sub-lettings of the Demised Premises referenced in clause 4.20.1(f)(A) above and PROVIDED THAT the Tenant has obtained the necessary Fire Safety Certificate and Disability Access Certificate and any other consents or approvals for the sub-division of any floor; and
(C) The Tenant shall be entitled to sub-let the entire of the part of the Demised Premises comprising Nos. 4, 5 & 6 Sir ▇▇▇▇ ▇▇▇▇▇▇▇▇’▇ Quay which sub-letting shall not be considered a sub-letting for the purposes of the restrictions set out in clauses 4.20.1(f)(A) and 4.20.1(f)(B) above. and PROVIDED FURTHER that the Tenant has obtained the necessary Fire Safety Certificate and Disability Access Certificate and any other consents or approvals for the sub-division of any floor. In the case of such underlease the same shall be made without taking a fine or premium and reserving the then current market rent or the rent payable hereunder at the then full current open market rent time of the granting of such sub-lease (whichever is the higher) and be in a form approved by the underLandlord (such approval not to be unreasonably withheld or delayed). The sub-lessee shall, tenant shall if required by the Landlord, Landlord enter into a direct covenant with the Landlord to perform and observe all the covenants (other than that for payment of the rents hereby reserved) and conditions herein contained and every in this Lease. Every such undersub-lease shall also be subject to the following conditions, that is to say that it shall contain:-contain:
(iA) provisions for the review of the rent thereby reserved (which the Tenant hereby covenants to operate and enforce) corresponding except both as to terms and dates but and in all other respects (mutatis mutandis) with the rent review provisions contained in this Lease, unless the term of the sub-lease does not extend beyond the next Review Date;
(iiB) a covenant condition or proviso under which the rent from time to time payable under such sub-lease shall not be less than the rent from time to time payable under this Lease;
(C) a covenant by the undertenant sub-tenant (which the Tenant hereby covenants to use reasonable endeavours to enforce) prohibiting the undertenant sub-tenant from doing or suffering any act or thing upon or in relation to the Demised Premises inconsistent with or in breach of, of the provisions of this Lease;
(iiiD) Any such sublease shall absolutely cease and determine if for whatever reason (including forfeiture) this Lease is terminated or expires (but a provision giving the Landlord acknowledges that this shall be subject to any sub-tenant statutory rights which any sub-tenant may have entitling the sub-tenant to remain in occupation) (without prejudice to any claims the Landlord may have against the Tenant if such rights arise due to any breach right of the Tenant's covenants in this Lease) and the Tenant shall procure that the sub-lessee vacates the premises underlet to it at the expiration or sooner determination of the Term;
(iv) a condition for re-entry on breach of any covenant by the undertenant;sub-tenant; and
(vE) the same restrictions as to alienation, assignment, underlettingsub-letting, mortgaging, charging (including lodging the sub-lease with anyone as security) and parting with or sharing the possession or occupation of the premises underlet; andsub-let as this Lease. PROVIDED THAT the Tenant shall procure that no sub-tenant shall acquire security of tenure rights pursuant to the Landlord and Tenant (Amendment) Act, 1980 as amended by the Landlord and Tenant (Amendment) Act, 1994 and the Civil Law (Miscellaneous Provisions) ▇▇▇ ▇▇▇▇ and each sub-tenant shall execute a Deed of Renunciation of such rights prior to executing any such sub-lease. The Tenant shall indemnify the Landlord against all actions, proceedings, claims, demands, losses, costs, expenses, damages and liability arising in any way directly or indirectly as a result of any such sub-tenant acquiring such rights under the above mentioned legislation.
(vi) a confirmation of renunciation of statutory renewal rights;
(f) To enforce at the Tenant’s own expense the performance and observance by every such undertenant sub-tenant of the covenants, covenants conditions and provisions and conditions of the undersub-lease and not, not at any time, time either expressly or by implication, implication to waive any breach of the same;.
(gvii) Not to agree any reviewed rent with the undertenant or sub-tenant nor any rent payable on any renewal thereof without the prior written consent of the Landlord such consent not to be unreasonably withheld or delayed but provided always that nothing herein shall prevent the Tenant from complying with any independent determination process provided for in the rent review clauses of the an sub-lease;
(h) Not to produce evidence of, refer to or seek to rely upon during any rent review pursuant to Schedule 4 the terms, conditions and/or existence of any under-letting(s) of part or all of the Demised Premises created by the Tenant including but not limited to the rent payable under any such under-letting(s);
(i) Not to vary the terms of any permitted under-lease without the prior written consent of the Landlord (such consent not to be unreasonably withheld or delayed).
(viii) Not to vary the terms or consent to alienation of or accept any surrender of any permitted sub-lease without the prior written consent of the Landlord, such consent not to be unreasonably withheld or delayed.
(jix) For the avoidance Within 14 (fourteen) days of doubtevery alienation, in the case of an assignment, underlettingtransfer, parting with possession assent, sub-lease, assignment of sub-lease, mortgage, charge (including lodgement of the relevant document or occupation instrument as security) or any other disposition whether mediate or immediate of or relating to the Demised Premises or any part thereof or sufferance of any person it, to occupy the Demised Premises or any part thereof as a licensee or concessionaire (an “Alienation”), it shall be reasonable for deliver to the Landlord to withhold consent to any such Alienation or its solicitors a solicitor’s certified copy of the Demised Premises deed instrument or part thereof where the Alienation would, in the reasonable opinion of the Landlord, have the effect other document evidencing or give rise to a termination of effecting such disposition duly stamped and shall pay the Landlord’s Option to Tax. PROVIDED ALWAYS THAT it shall not be proper and reasonable costs and expenses in connection with such alienation including, for the Landlord avoidance of doubt, the Landlord’s proper and reasonable professional costs and expenses.
(x) The Tenant covenants to withhold such consent in circumstances where prior to any such proposed Alienation the Tenant pays or procures the payment to indemnify and keep indemnified the Landlord of:
in respect of any and all tax liabilities (i) an amount equal to the amount of including any VAT clawback or VAT payment obligations suffered liability) which the Landlord may suffer in the event the Tenant breaches the conditions of clause 4.14(a) or 4.14(b). All sums payable by the Tenant to the Landlord under this clause 4.14(b)(x) shall be paid free and clear of all deductions or withholdings save only as a result may be required by law. If any such deductions or withholdings are required by law, the Tenant shall pay to the Landlord such sum as will, after such deduction or withholding has been made, leave the Landlord with the same amount as it would have been entitled to receive, in the absence of such Alienation (hereinafter referred requirement to in make a deduction or withholding. If any sum payable by the Tenant to the Landlord under this Lease as a VAT Adjustment); and
(iiclause 4.14(b)(x) because the VAT Adjustment payable under sub-clause (i) above is or may shall otherwise be subject to tax in the hands of the Landlord, such further sum (the “Additional Payment”) as will leave the Landlord in at least the same position obligation to make an increased payment shall apply in relation to such tax as if it were a deduction or withholding required by law, as referred to above.
(xi) For the VAT Adjustment had avoidance of doubt, the Tenant shall pay the Landlord’s proper and reasonable costs and expenses (including the Landlord’s proper and reasonable professional costs and expenses) in connection with the Landlord’s consideration of any application made under this clause 4.14(b) irrespective of whether or not the application is ultimately refused or withdrawn save where it is determined by a court of law that Landlord’s consent has been subject to tax and unreasonably withheld. PROVIDED HOWEVER THAT for as long as the purpose of calculating Tenant is Hubspot Ireland Limited the Additional Payment it shall be assumed, if not otherwise the case, that the VAT Adjustment and the Additional Payment constitute the sole income consent of the Landlord and that shall not be required for the sharing of possession of the Demised Premises by the Tenant with any Group Company subject to (a) the Tenant notifying the Landlord has no deductible expenses, losses or allowances for tax purposes for offset or reduction against such income or receipt and the Tenant shall keep the Landlord indemnified in respect of any such VAT Adjustment and Additional Payment. In respect of the above, identity of the Landlord agrees to furnish relevant Group Company not less than five working days prior to the Tenant relevant Group Company entering occupation and (b) the relevant Group Company shall execute a calculation Deed of any sums due (the “Statement”) signed by the Landlord’s auditors or tax advisors and such Statement shall (save in the case Renunciation of manifest error) be final and binding on the parties. All amounts shall be paid in advance its security of tenure rights pursuant to the Landlord prior to issuing consent to any proposed alienationand Tenant (Amendment) Act, 1980 as amended by the Landlord and Tenant (Amendment) Act, 1994 and the Civil Law (Miscellaneous Provisions) ▇▇▇ ▇▇▇▇.
Appears in 1 contract
Sources: Lease (Hubspot Inc)
Alienation. Not to 4.15.1 The Tenant must not assign, transfer, underlet, or charge, hold on trust, part with the or share possession or occupation of the Demised Premises in whole or in part, except as authorised under this clause 4.15 or Schedule 7.
4.15.2 Without prejudice to the generality of clause 4.15.1, the Tenant must not during the Imperial Period assign underlet charge hold on trust part with possession or share occupation of the whole or any part thereof or suffer any person to occupy the Demised Premises or any part thereof as a licensee BUT SO THAT NOTWITHSTANDING the foregoing the Landlord shall not unreasonably withhold or delay its consent to an assignment of the entire of the Demised Premises or an underletting of the entire or part of the Demised Premises (a “Disposal”) to an assignee/underlessee that constitutes an institutionally acceptable covenant and that is of good and sufficient financial standing (and in the case of an assignment, is otherwise to the reasonable satisfaction of the Landlord) sufficient to meet its obligations as aforesaid subject always to the following provisions or such of them as may be appropriate, that is to sayany person:
(a) The Tenant shall prior who is substantively involved in the manufacture, sale or distribution of goods or services which if used in the manner in which they were designed or intended to any such alienation as aforesaid apply be used have a proven materially adverse impact on the life expectancy of humans OR whose activities are incompatible with the objectives of Imperial College of Science Technology and Medicine or the objectives of its major research funders. Without limitation if the Chief Medical Adviser to the Landlord and give all reasonable information concerning UK Government has issued a health warning in relation to something it will be deemed for the proposed transaction and concerning purpose of this sub paragraph only to have been proven to have a material adverse impact on the proposed assignee, under-lessee, licensee or disponee as the Landlord may reasonably requirelife expectancy of humans;
(b) in respect of which it is reasonably likely that a Disposal to such person would cause Imperial College of Science Technology and Medicine to lose its charitable status. In the event of any conflict between the provisions of this clause 4.15.2 and any of the other provisions of this Lease, the provisions of this clause 4.15.2 shall prevail.
4.15.3 The Tenant must not assign the whole or underlet the whole of the Premises unless it has complied with its obligations in Schedule 8 and the Landlord has decided (or the Landlord is treated as having decided) not to accept an offer to surrender the Premises to the Landlord.
4.15.4 The Tenant may, with the Landlord’s consent (if givenconsent, assign the whole of the Premises.
4.15.5 For the purposes of section 19(1A) to any such alienation shall be in writing and shall be given in such manner as the Landlord shall decide acting reasonably and the Tenant shall pay the reasonable vouched costs of the Landlord properly incurred in connection with the furnishing of such decision;
(c) In the case of an assignment to a limited liability company which is not an institutionally acceptable covenant and of good and sufficient financial standing to meet its obligations as aforesaid, it shall be deemed reasonable for the Landlord to require that a guarantor or guarantors of financial standing satisfactory to the Landlord (acting reasonably) shall join in such consent as aforesaid as surety or sureties for such Company in order jointly and severally to covenant with the Landlord in the manner described in the guarantee contained in the Schedule 8 (mutatis mutandis);
(d) In the case of an underlease, the Tenant agrees to use reasonable endeavours to ensure that the terms and conditions of any underlease remain confidential as between the Landlord and the Tenant and shall not be disclosed by the Tenant to any third party without the Landlord's prior written approval, except as required by Law;
(e) In the case of an underlease, the same shall be of either the entire of the Demised Premises or part of the Demised Premises PROVIDED THAT
(A) The Tenant may sub-let on a floor-by-floor basis subject to a maximum of four (4) sub-lettings at any one time;
(B) The Tenant may sub-let part only of a floor subject to a cap of two sub-tenants per floor and at a minimum of 50% of the floor area of a particular floor the Landlord acknowledging that the remaining un-let space may be less than 50% of a particular floor and subject further to the maximum of four (4) sub-lettings of the Demised Premises referenced in clause 4.20.1(f)(A) above and PROVIDED THAT the Tenant has obtained the necessary Fire Safety Certificate and Disability Access Certificate and any other consents or approvals for the sub-division of any floor; and
(C) The Tenant shall be entitled to sub-let the entire of the part of the Demised Premises comprising Nos. 4, 5 & 6 Sir ▇▇▇▇ ▇▇▇▇▇▇▇▇’▇ Quay which sub-letting shall not be considered a sub-letting for the purposes of the restrictions set out in clauses 4.20.1(f)(A:
(a) and 4.20.1(f)(B) above. and PROVIDED FURTHER that the Tenant has obtained the necessary Fire Safety Certificate and Disability Access Certificate and any other consents or approvals for the sub-division of any floor. In the case of such underlease the same shall be made without taking may not assign to a fine or premium at the then full current open market rent and the under-lessee shall, Current Guarantor;
(b) if required by the Landlord, enter into a direct covenant with the Landlord in its absolute discretion any consent to perform and observe all the covenants (other than that for payment of the rents hereby reserved) and conditions herein contained and every such under-lease shall also assign may be subject to the following conditions, that is to say that it shall contain:-a condition that:
(i) provisions the assigning tenant gives the Landlord an AGA; and
(ii) any guarantor of the assigning tenant gives the Landlord a guarantee that the assigning tenant will comply with the terms of the AGA in each case in a form that the Landlord requires, given as a deed and delivered to the Landlord before the assignment;
(c) any consent to assign may (to the extent required by the Landlord, acting reasonably taking into account in particular the identity of the proposed assignee) be subject to either of the following conditions:
(i) that a guarantor (approved by the Landlord) that is not a Current Guarantor guarantees the assignee’s performance of the Tenant’s obligations in this Lease; and
(ii) the assignee enters into a rent deposit deed with, and on terms (including a charge over the deposit) required by the Landlord providing for a deposit of not less than six months’ Main Rent (plus VAT) (calculated as at the date of the assignment) as security for the review assignee’s performance of the rent thereby reserved (which the Tenant hereby tenant’s covenants to operate and enforce) corresponding except as to terms and dates but in all other respects (mutatis mutandis) with the rent review provisions contained in this Lease;
(iid) a covenant by the undertenant (which Landlord may refuse consent to assign if the Tenant hereby covenants to use reasonable endeavours to enforce) prohibiting the undertenant from doing or suffering any act or thing upon or has not paid in relation full all Rents and other sums due to the Demised Premises in breach of, Landlord under this Lease that are not the provisions subject of this Leasea legitimate dispute about their payment;
(iiie) Any such sublease shall absolutely cease and determine if for whatever reason (including forfeiture) this Lease is terminated or expires (but the Landlord acknowledges that this shall be subject to any sub-tenant statutory rights which any sub-tenant may have entitling the sub-tenant to remain in occupation) (without prejudice to any claims the Landlord may have against refuse consent to assign if in its reasonable opinion the Tenant if such rights arise due to any breach of the Tenant's covenants in this Lease) and the Tenant shall procure that the sub-lessee vacates the premises underlet to it at the expiration or sooner determination of the Term;
(iv) a condition for re-entry on breach of any covenant by the undertenant;
(v) the same restrictions as to alienation, assignment, underletting, parting with or sharing the possession or assignee’s occupation of the premises underlet; and
(vi) a confirmation Premises or its activities on the Premises would be likely to bring the Landlord or Imperial College of renunciation of statutory renewal rightsScience Technology and Medicine into disrepute;
(f) To enforce at the Tenant’s own expense the performance and observance by every such undertenant of the covenants, provisions and conditions of the under-lease and not, at Landlord may refuse consent to assign in any time, either expressly or by implication, other circumstances where it is reasonable to waive any breach of the same;do so; and
(g) Not the Landlord may require any other condition to agree any reviewed rent the Landlord’s consent if it is reasonable to do so.
4.15.6 The provisions of Schedule 7 apply to underlettings of the Premises and the Tenant must comply with its obligations in that Schedule.
4.15.7 The Tenant may charge the undertenant or any rent payable on any renewal thereof whole of the Premises to a genuine lending institution without the Landlord’s consent but the Tenant must notify the Landlord under clause 4.16 of any charge created, save for a floating charge which does not require notification upon its creation.
4.15.8 In addition to the provisions of this clause 4.15, the Tenant may share occupation of the Premises with a Group Company of the Tenant on condition that:
(a) the Tenant gives prior written consent notice to the Landlord of the Landlord such consent not identity of the occupier and the part of the Premises to be unreasonably withheld or delayed but provided always that nothing herein shall prevent the Tenant from complying with any independent determination process provided for in the rent review clauses of the sub-leaseoccupied;
(hb) Not no relationship of landlord and tenant is created or is allowed to produce evidence of, refer to or seek to rely upon during any rent review pursuant to Schedule 4 the terms, conditions and/or existence of any under-letting(s) of part or all of the Demised Premises created by the Tenant including but not limited to the rent payable under any such under-letting(s)arise;
(ic) Not to vary the terms sharing of any permitted under-lease without occupation ends if the prior written consent occupier is no longer a Group Company of the Landlord not to be unreasonably withheld or delayed.
(j) For the avoidance of doubt, in the case of an assignment, underletting, parting with possession or occupation of the Demised Premises or any part thereof or sufferance of any person to occupy the Demised Premises or any part thereof as a licensee or concessionaire (an “Alienation”), it shall be reasonable for the Landlord to withhold consent to any such Alienation of the Demised Premises or part thereof where the Alienation would, in the reasonable opinion of the Landlord, have the effect or give rise to a termination of the Landlord’s Option to Tax. PROVIDED ALWAYS THAT it shall not be reasonable for the Landlord to withhold such consent in circumstances where prior to any such proposed Alienation the Tenant pays or procures the payment to the Landlord of:
(i) an amount equal to the amount of any VAT clawback or VAT payment obligations suffered by the Landlord as a result of such Alienation (hereinafter referred to in this Lease as a VAT Adjustment)Tenant; and
(iid) because the VAT Adjustment payable under sub-clause (i) above is or may be subject to tax in the hands of the Landlord, such further sum (the “Additional Payment”) as will leave the Landlord in at least is notified promptly when the same position as if the VAT Adjustment had not been subject to tax and for the purpose of calculating the Additional Payment it shall be assumed, if not otherwise the case, that the VAT Adjustment and the Additional Payment constitute the sole income of the Landlord and that the Landlord has no deductible expenses, losses or allowances for tax purposes for offset or reduction against such income or receipt and the Tenant shall keep the Landlord indemnified in respect of any such VAT Adjustment and Additional Payment. In respect of the above, the Landlord agrees to furnish to the Tenant a calculation of any sums due (the “Statement”) signed by the Landlord’s auditors or tax advisors and such Statement shall (save in the case of manifest error) be final and binding on the parties. All amounts shall be paid in advance to the Landlord prior to issuing consent to any proposed alienationoccupation ends.
Appears in 1 contract
Alienation. Not 4.15.1 If the Tenant at any time proposes to assign, transfer, underlet, assign or part underlet the whole of the Premises the Tenant shall first by an irrevocable unconditional written notice (“the Tenant’s Notice”) served upon the Landlord offer to surrender or assign this lease to the Landlord upon such financial terms and conditions as the Tenant may desire
4.15.2 During the period of fifteen working days following service of the Tenant’s Notice the Landlord may serve on the Tenant a notice in relation to the surrender created by this clause 4.15 in a form complying with the possession or occupation requirements of Schedule 3 to the Demised Premises or any part thereof or suffer any person to occupy the Demised Premises or any part thereof as Order (a licensee BUT SO THAT NOTWITHSTANDING the foregoing “Warning Notice”).
4.15.3 If the Landlord shall serve a Warning Notice the Tenant shall make a duly executed declaration or statutory declaration in a form complying with the requirements of Schedule 4 of the Order (a “Declaration”) as soon as reasonably practicable and the offer contained in the Tenant’s Notice shall remain irrevocable and open for acceptance by the Landlord until the service on the Tenant of the Counter-Notice pursuant to clause 4.15.4.
4.15.4 Within fifteen working days of receipt of the Tenant’s Notice or, if later, the date of receipt of the Declaration from the Tenant (in respect of which time shall be of the essence) the Landlord may issue a counter-notice (“the Counter-Notice”) upon the Tenant stating the Landlord wishes to accept such surrender or assignment on the terms specified in the Tenant’s Notice
4.15.5 If the Landlord serves a Counter-Notice on the Tenant then the Tenant shall surrender or assign (at the Landlord’s option) this lease to the Landlord and the Landlord shall accept an obligation to take a surrender or assignment of this lease (as the case may be) upon the terms specified in the Tenant’s Notice within 15 working days of receipt of the Counter-Notice by the Tenant either with vacant possession or subject only to a permitted underletting and the Tenant’s liability hereunder shall cease in respect of any matters arising following the date of such assignment or surrender and the Tenant shall be released from all its obligations hereunder but without prejudice to any antecedent breaches of covenant save in respect of reinstatement in relation to which the Tenant shall be required to leave the Premises in a clean and tidy condition (with all furniture removed) but not reinstated to the Reinstatement Specification. Upon completion of such surrender or assignment (as the case may be) the Landlord shall (by deed) execute a formal release of the Tenant’s obligations hereunder in such form as the Tenant shall reasonably require
(A) If the Landlord does not take a surrender or assignment of this lease within the period specified in sub-clause 4.15.4 above for whatever reason then the Tenant’s obligation to surrender or assign to the Landlord under sub-clause 4.15.4 shall cease and the Tenant must (if it still wishes to assign or underlet this lease) complete its assignment or underletting on terms no worse than the financial terms and conditions stipulated in the Tenant’s Notice within 6 months from the date of the Tenant’s Notice extended by such period as results from the Landlord unreasonably withhold withholding or delay delaying the issue of its consent and if the Tenant shall fail to an assignment complete within such period if it still wishes to assign or underlet the whole of the entire Premises it must reinstate the procedure set out in this clause 4.15
(B) If the Landlord does not serve a Counter-Notice upon the Tenant within the fifteen working day period specified in sub-clause 4.15.4 above then the Tenant must (if it still wishes to assign or underlet this lease) complete its assignment or underletting on financial terms no worse than the terms and conditions stipulated in the Tenant’s Notice within 6 months from the date of the Demised Tenant’s Notice extended by such period as results from the Landlord unreasonably withholding or delaying the issue of its consent and if the Tenant shall fail to complete within such period if it still wishes to assign or underlet the whole of the Premises it must reinstate the procedure set out in this clause 4.15
(A) Subject to the foregoing provisions of this sub-clause 4.15 not to assign mortgage charge or underlet or in any other manner part with possession of any part (being less than the whole) of the Premises or an underletting agree to do so except that the Tenant may underlet the whole of (but not more or less than) any Permitted Part or Permitted Parts or share occupation in accordance with sub-clauses 4.15.9 to 4.15.13
(B) Subject to the foregoing provisions of this sub-clause 4.15 not to assign underlet or otherwise part with possession of the entire or part whole of the Demised Premises or agree to do so except that the Tenant may assign or underlet the whole of the Premises in accordance with sub-clauses 4.15.8 to 4.15.12
(C) In the event that the Tenant proposes to assign or underlet the whole of the premises demised under the Level 24 Lease and Level 25 Lease or solely the Level 25 Lease at the same time as this lease and has served the equivalent Tenant's Notice on the Landlord pursuant to clause 4.15.1 of the Level 24 Lease and the Level 25 Lease in respect of each of the Level 24 Lease and the Level 25 Lease or pursuant to clause 4.15.1 of the Level 25 Lease (as appropriate), and the Landlord has served a Counter-Notice for this lease, the Landlord must also serve such equivalent counter-notice on the Tenant as provided for in the Level 24 Lease and/or the Level 25 Lease (as appropriate).
(A) Not to assign the whole of the Premises without first obtaining the Landlord’s consent issued within three months before completion of the assignment which consent shall not be unreasonably withheld or delayed but which may be granted subject to any one or more of the conditions referred to in clause 4.15.8 (B) and which may be withheld if the circumstance referred to in clause 4.15.8 (C) exists. For the avoidance of doubt, the provisions of this clause 4.15.8 shall not apply in the event that the Landlord has served a Counter-Notice and the Tenant assigns this Lease to the Landlord in accordance with clause 4.15.5 hereof.
(B) The conditions referred to in clause 4.15.8 (A) above (which are specified for the purposes of section 19(1A) Landlord and Tenant Act 1927) are:
(1) that the Tenant shall enter into an assignee/underlessee authorised guarantee agreement (as defined in section 16 Landlord and Tenant (Covenants) Act 1995) with the Landlord in a form which the Landlord reasonably requires
(2) that constitutes an institutionally acceptable covenant any guarantor of the Tenant’s obligations under this lease shall have guaranteed to the Landlord that the Tenant will comply with the terms and that is conditions of good and sufficient financial standing the authorised guarantee agreement referred to in sub-clause clause 4.15.8 (B)(1) on terms and in a form which the case of an assignment, is otherwise to Landlord reasonably requires
(3) that if so reasonably required by the reasonable satisfaction of Landlord the Landlord) sufficient to meet its obligations as aforesaid subject always to the following provisions or such of them as may be appropriate, that is to say:proposed assignee shall have either procured
(a) The Tenant shall prior to any such alienation as aforesaid apply to covenants with the Landlord and give all reasonable information concerning the proposed transaction and concerning the proposed assignee, under-lessee, licensee or disponee as the Landlord may reasonably require;
(b) The Landlord’s consent (if given) to any such alienation shall be in writing and shall be given in such manner as the Landlord shall decide acting reasonably and the Tenant shall pay the reasonable vouched costs of the Landlord properly incurred in connection with the furnishing of such decision;
(c) In the case of an assignment to a limited liability company which is not an institutionally acceptable covenant and of good and sufficient financial standing to meet its obligations as aforesaid, it shall be deemed reasonable for the Landlord to require that by a guarantor or guarantors of financial standing satisfactory (not being the Tenant or Tenant’s Guarantor) reasonably acceptable to the Landlord, in a form acceptable to the Landlord (acting reasonably); or
(b) shall join in such consent as aforesaid as surety or sureties for such Company in order jointly and severally to covenant a deposit with the Landlord in the manner described in the guarantee contained in the Schedule 8 (mutatis mutandis);
(d) In the case of an underlease, the Tenant agrees to use reasonable endeavours to ensure that the terms and conditions of any underlease remain confidential as between the Landlord and the Tenant and shall such sum not be disclosed by the Tenant to any third party without the Landlord's prior written approval, except as required by Law;
(e) In the case of an underlease, the same shall be of either the entire of the Demised Premises or part of the Demised Premises PROVIDED THAT
(A) The Tenant may sub-let on a floor-by-floor basis subject to a maximum of four (4) sub-lettings at any one time;
(B) The Tenant may sub-let part only of a floor subject to a cap of two sub-tenants per floor and at a minimum of 50% of the floor area of a particular floor the Landlord acknowledging that the remaining un-let space may be less than 50% of a particular floor the then current annual rent first reserved by this lease together with any VAT thereon as fourthly reserved by this lease (and subject further to including provisions for increase of the maximum sum deposited following any future review of four the rent first reserved by this lease) on such terms as the Landlord may reasonably require as additional security for the discharge of the Tenant’s obligations under this lease
(4) sub-lettings if the proposed assignee is a Group Company the Tenant shall have procured either:
(a) if the Tenant’s obligations under this lease are guaranteed by another Group Company that such Group Company covenants with the Landlord on terms reasonably acceptable to (but no more onerous than the existing guarantee) the Landlord (which shall include a covenant to accept a new lease in the same form as this lease mutatis mutandis if any of the Demised Premises referenced circumstances referred to in clause 4.20.1(f)(A) above and PROVIDED THAT 7.1 arise in respect of the Tenant has obtained or any assignee); or
(b) if there is no guarantor of the necessary Fire Safety Certificate Tenant’s obligations under this lease and Disability Access Certificate if the assignee is not at the date of the application for consent to the proposed assignment in the reasonable opinion of the Landlord of financial standing equivalent to or greater than the Tenant at the date of this lease that the proposed assignee procures covenants by a Group Company which is not the Tenant or the proposed assignee and which is in the reasonable opinion of the Landlord of financial standing equivalent to or greater than the Tenant on terms reasonably acceptable to the Landlord (which shall include a covenant to accept a new lease in the same form as this lease mutatis mutandis if any other consents of the circumstances referred to in clause 7.1 arise in respect of the Tenant or approvals for the sub-division of any floor; andassignee)
(C) The Tenant shall be entitled circumstance referred to sub-let the entire of the part of the Demised Premises comprising Nos. 4, 5 & 6 Sir ▇▇▇▇ ▇▇▇▇▇▇▇▇’▇ Quay in clause 4.15.8 (A) above (which sub-letting shall not be considered a sub-letting is specified for the purposes of the restrictions set out in clauses 4.20.1(f)(Asection 19(1A) Landlord and 4.20.1(f)(BTenant Act 1927) above. is where any sums due and PROVIDED FURTHER that properly demanded from the Tenant has obtained to the necessary Fire Safety Certificate Landlord under this lease (not being the subject of a bona fide dispute) remain unpaid at the date of the application for consent to the proposed assignment
4.15.9 Not to underlet the whole of the Premises or any Permitted Part (each being referred to in this paragraph as the premises) except:
(A) to a person who before the underletting shall have covenanted with the Landlord to observe and Disability Access Certificate and any other consents or approvals for perform the Tenant’s obligations under this lease during the sub-division term to the extent they relate to the premises demised by the underletting (other than the payment of rents) and shall have covenanted not to assign or underlet the whole of the premises without the Landlord’s consent (which shall not be unreasonably withheld or delayed) and shall have given an unqualified covenant not to assign or underlet part of the premises or otherwise part with possession or share the occupation of the premises or any floor. In the case part of such underlease them other than on the same shall be made basis as sub-clause (4.15.10(C) below (applying mutatis mutandis to the sub-tenant)
(B) by reserving as a yearly rent without taking payment of a fine or premium at (in addition to the service and insurance and other rents payable under this lease except the rent first hereby reserved or (in the case of underletting of a Permitted Part) a pro rata proportion of them) an amount not less than:
(1) (in the case of an underletting of the Premises) the then full current open market rent and of the underPremises
(2) (in the case of an underletting of a Permitted Part) the then open market rent of the Permitted Part (notwithstanding that this may be less than a pro-lessee shall, if required rata proportion of the then open market rent of the Premises as a whole)
(C) by a form of underlease:
(1) by which the principal rent reserved by the Landlord, enter into a direct covenant underlease is reviewed upwards only at each of those Review Dates which will occur during the sub term in accordance with the Landlord to perform and observe all the covenants (other than that for payment of the rents hereby reserved) and conditions herein contained and every such under-lease shall also be subject to the following conditions, that is to say that it shall contain:-
(i) provisions for the review of the rent thereby reserved (which the Tenant hereby covenants to operate and enforce) corresponding except as to terms and dates but in all other respects same principles (mutatis mutandis) with as apply to the rent review provisions contained in first reserved by this Lease;lease
(ii2) a requiring the underlessee to observe and perform all the covenants and other provisions binding on the Tenant under this lease (other than the covenant by the undertenant (which Tenant to pay the Tenant hereby covenants to use reasonable endeavours to enforceseveral rents reserved hereunder) prohibiting the undertenant from doing or suffering any act or thing upon or in relation to the Demised Premises in breach of, extent they relate to the provisions of this Lease;premises and containing:
(iii) Any such sublease shall absolutely cease and determine if for whatever reason (including forfeiture) this Lease is terminated or expires (but the Landlord acknowledges that this shall be subject to any sub-tenant statutory rights which any sub-tenant may have entitling the sub-tenant to remain in occupation) (without prejudice to any claims the Landlord may have against the Tenant if such rights arise due to any breach of the Tenant's covenants in this Lease) and the Tenant shall procure that the sub-lessee vacates the premises underlet to it at the expiration or sooner determination of the Term;
(iva) a condition for re-entry by the underlessor on breach of any covenant by the undertenant;underlessee
(vb) a qualified covenant not to assign or underlet the same restrictions as whole of the premises and an absolute covenant not to alienation, assignment, underletting, parting assign or underlet part of the premises or to otherwise part with or sharing the possession or share the occupation of the premises underlet; andor any part of them save by way of group company sharing
(vic) a confirmation whereby the provisions of renunciation of statutory renewal rights;
(f) To enforce at the Tenant’s own expense the performance and observance by every such undertenant of the covenants, provisions and conditions of the under-lease and not, at any time, either expressly or by implication, sections 24 to waive any breach of the same;
(g) Not to agree any reviewed rent with the undertenant or any rent payable on any renewal thereof without the prior written consent 28 inclusive of the Landlord such consent not to be unreasonably withheld or delayed but provided always that nothing herein shall prevent the Tenant from complying with any independent determination process provided for and ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ have been excluded in the rent review clauses of the sub-lease;
(h) Not to produce evidence of, refer to or seek to rely upon during any rent review pursuant to Schedule 4 the terms, conditions and/or existence of any under-letting(s) of part or all of the Demised Premises created by the Tenant including but not limited relation to the rent payable under any such under-letting(s);
(i) Not to vary the terms of any permitted under-lease without the prior written consent underlease in accordance with section 38A of the Landlord and ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ before the underlease is granted or if earlier the underlessee becomes contractually bound to take it
(D) with the Landlord’s consent issued within three months before completion of the underletting which consent (subject to compliance with the foregoing conditions precedent) shall not to be unreasonably withheld or delayed.
4.15.10 In relation to an underlease of a Permitted Part:
(jA) For the avoidance of doubt, not to include in the case of an assignment, underletting, parting with possession or occupation of sub-demise the Demised Premises whole or any part thereof or sufferance of any person to occupy the Demised Premises or any part thereof as a licensee or concessionaire (an “Alienation”), it shall be reasonable for the Landlord to withhold consent to any such Alienation of the Demised Premises entrance to or part thereof where the Alienation would, in the reasonable opinion reception area of the Landlord, have the effect or give rise to a termination of the Landlord’s Option to Tax. PROVIDED ALWAYS THAT it shall not be reasonable for the Landlord to withhold such consent in circumstances where prior to any such proposed Alienation the Tenant pays or procures the payment to the Landlord of:Premises
(iB) an amount equal to except from the amount of any VAT clawback or VAT payment obligations suffered by underlease all necessary circulation areas and plant and equipment which will serve the Landlord Premises in common (C) not as a result of such Alienation the grant to create or permit the creation of more than two separate occupations affecting the whole of each floor of the Premises (hereinafter referred occupations under this lease counting as one occupation save where the occupation under this lease is only of corridor areas and ducts common to in this Lease as a VAT Adjustment); and
(ii) because the VAT Adjustment payable under sub-clause (i) above is or may be subject to tax in the hands of the Landlord, such further sum (the “Additional Payment”) as will leave the Landlord in at least the same position as if the VAT Adjustment had not been subject to tax and for the purpose of calculating the Additional Payment it shall be assumed, if not otherwise the case, that the VAT Adjustment and the Additional Payment constitute the sole income of the Landlord and that the Landlord has no deductible expenses, losses or allowances for tax purposes for offset or reduction against such income or receipt and the Tenant shall keep the Landlord indemnified in respect of any such VAT Adjustment and Additional Payment. In respect of the above, the Landlord agrees to furnish to the Tenant a calculation of any sums due (the “Statement”) signed by the Landlord’s auditors or tax advisors and such Statement shall (save in the case of manifest error) be final and binding on the parties. All amounts shall be paid in advance to the Landlord prior to issuing consent to any proposed alienation.demises)
Appears in 1 contract
Alienation. Not (a) not to assign, transfer, underlet, assign (which shall include any equitable assignment) underlet charge grant any security interest over or part with the or share possession or occupation of the Demised Premises whole or any part thereof or suffer any person parts of the Demised Premises nor to occupy hold its interest in the Demised Premises or any part thereof as a licensee BUT SO nominee or upon trust for any third party save in accordance with the provisions of this Clause 3.24 PROVIDED ALWAYS THAT NOTWITHSTANDING the foregoing Tenant may without the necessity of obtaining the consent of the Landlord shall not unreasonably withhold or delay its consent to an assignment share occupation of the entire whole or any part or parts of the Demised Premises with a company that is a member of the same group as the Tenant (as defined by Section 42 of the Landlord and Tenant Act 1954) subject to:
(i) the Tenant notifying the Landlord of the commencement or termination of each such arrangement;
(ii) any such sharing of occupation terminating forthwith upon any such company or companies ceasing to be a member or members of the same group as the Tenant; and
(iii) no relationship of landlord and tenant being thereby created For the avoidance of doubt any such sharing of occupation shall not constitute an underletting within the meaning of the entire or part of the Demised Premises to an assignee/underlessee that constitutes an institutionally acceptable covenant and that is of good and sufficient financial standing Clause 3.24(c)
(and b) in the case of an assignment, is otherwise to the reasonable satisfaction assignment of the Landlordwhole of the Demised Premises prior to such assignment all the conditions set out below (being conditions specified for the purposes of Section 19(1A) sufficient of the Landlord and ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ (as amended by Section 22 of the Landlord and Tenant (Covenants) Act 1995)) have been complied with in relation to meet its obligations that assignment which conditions are as aforesaid subject always to the following provisions or such of them as may be appropriate, that is to sayfollows:
(ai) The Tenant shall prior to any such alienation as aforesaid apply at the time of the assignment there are no arrears of Rents or other monies due to the Landlord and give all reasonable information concerning there is no subsisting and material breach of any of the proposed transaction and concerning covenants on the part of the Tenant herein contained; and
(ii) the Tenant has entered into an Authorised Guarantee Agreement as defined in the Landlord & Tenant (Covenants) ▇▇▇ ▇▇▇▇ guaranteeing the proposed assignee, under-lessee, licensee or disponee 's performance of the covenants on the part of the Tenant in such form as the Landlord may reasonably require;; and
(biii) The Landlord’s consent the proposed assignee has provided references (and copies of the letters leading to the giving of such references) from its bank accountant and (if givenpossible) solicitors and any current landlord in each case satisfactory to any such alienation shall be support payment by the assignee of sums equal to the current Rents or an increased sum in writing and shall be given in such manner respect of an imminent rent review as estimated by the Landlord shall decide acting reasonably and the Tenant shall pay the reasonable vouched costs of the Landlord properly incurred in connection with the furnishing of such decision;reasonably; and
(civ) In the case of where an assignment to a limited liability company which is the proposed assignee would not an institutionally acceptable covenant and materially reduce the value of good and sufficient financial standing to meet its obligations as aforesaid, it shall be deemed reasonable for the Landlord to require that a guarantor or guarantors of financial standing satisfactory to the Landlord (acting reasonably) shall join in such consent as aforesaid as surety or sureties for such Company in order jointly and severally to covenant with the Landlord in the manner described in the guarantee contained in the Schedule 8 (mutatis mutandis);
(d) In the case of an underlease, the Tenant agrees to use reasonable endeavours to ensure that the terms and conditions of any underlease remain confidential as between the Landlord and the Tenant and shall not be disclosed by the Tenant to any third party without the Landlord's prior written approval, except as required by Law;
(e) In the case of an underlease, the same shall be of either the entire of interest in the Demised Premises or materially and adversely affect the Landlord's ability to dispose of the reversion to all or any part of the Demised Premises PROVIDED THAT
(A) The Tenant may sub-let on a floor-by-floor basis subject Premises; and AND in every case and in addition to a maximum of four (4) sub-lettings at any one time;
(B) The Tenant may sub-let part only of a floor subject to a cap of two sub-tenants per floor and at a minimum of 50% of the floor area of a particular floor above conditions the Landlord acknowledging that the remaining un-let space may be less than 50% of a particular floor and subject further has given its consent to the maximum of four (4) sub-lettings of the Demised Premises referenced in clause 4.20.1(f)(A) above and PROVIDED THAT the Tenant has obtained the necessary Fire Safety Certificate and Disability Access Certificate and any other consents or approvals for the sub-division of any floor; and
(C) The Tenant shall be entitled to sub-let the entire of the part of the Demised Premises comprising Nos. 4, 5 & 6 Sir ▇▇▇▇ ▇▇▇▇▇▇▇▇’▇ Quay which sub-letting shall not be considered a sub-letting for the purposes of the restrictions set out in clauses 4.20.1(f)(A) and 4.20.1(f)(B) above. and PROVIDED FURTHER that the Tenant has obtained the necessary Fire Safety Certificate and Disability Access Certificate and any other consents or approvals for the sub-division of any floor. In the case of such underlease the same shall be made without taking a fine or premium at the then full current open market rent and the under-lessee shall, if required by the Landlord, enter into a direct covenant with the Landlord to perform and observe all the covenants (other than that for payment of the rents hereby reserved) and conditions herein contained and every such under-lease shall also be subject to the following conditions, that is to say that it shall contain:-
(i) provisions for the review of the rent thereby reserved (which the Tenant hereby covenants to operate and enforce) corresponding except as to terms and dates but in all other respects (mutatis mutandis) with the rent review provisions contained in this Lease;
(ii) a covenant by the undertenant (which the Tenant hereby covenants to use reasonable endeavours to enforce) prohibiting the undertenant from doing or suffering any act or thing upon or in relation to the Demised Premises in breach of, the provisions of this Lease;
(iii) Any such sublease shall absolutely cease and determine if for whatever reason (including forfeiture) this Lease is terminated or expires (but the Landlord acknowledges that this shall be subject to any sub-tenant statutory rights which any sub-tenant may have entitling the sub-tenant to remain in occupation) (without prejudice to any claims the Landlord may have against the Tenant if such rights arise due to any breach of the Tenant's covenants in this Lease) and the Tenant shall procure that the sub-lessee vacates the premises underlet to it at the expiration or sooner determination of the Term;
(iv) a condition for re-entry on breach of any covenant by the undertenant;
(v) the same restrictions as to alienation, assignment, underletting, parting with or sharing the possession or occupation of the premises underlet; and
(vi) a confirmation of renunciation of statutory renewal rights;
(f) To enforce at the Tenant’s own expense the performance and observance by every such undertenant of the covenants, provisions and conditions of the under-lease and not, at any time, either expressly or by implication, to waive any breach of the same;
(g) Not to agree any reviewed rent with the undertenant or any rent payable on any renewal thereof without the prior written consent of the Landlord such consent assignment which must not to be unreasonably withheld or delayed but provided always that nothing herein shall prevent the Tenant from complying with any independent determination process provided for in the rent review clauses of the sub-lease;
(h) Not to produce evidence of, refer to or seek to rely upon during any rent review pursuant to Schedule 4 the terms, conditions and/or existence of any under-letting(s) of part or all of the Demised Premises created by the Tenant including but not limited to the rent payable under any such under-letting(s);
(i) Not to vary the terms of any permitted under-lease without the prior written consent of the Landlord not to be unreasonably withheld or delayed.
(j) For the avoidance of doubt, in the case of an assignment, underletting, parting with possession or occupation of the Demised Premises or any part thereof or sufferance of any person to occupy the Demised Premises or any part thereof as a licensee or concessionaire (an “Alienation”), it shall be reasonable for the Landlord to withhold consent to any such Alienation of the Demised Premises or part thereof where the Alienation would, in the reasonable opinion of the Landlord, have the effect or give rise to a termination of the Landlord’s Option to Tax. PROVIDED ALWAYS THAT it shall not be reasonable for the Landlord to withhold such consent in circumstances where prior to any such proposed Alienation the Tenant pays or procures the payment to the Landlord of:
(i) an amount equal to the amount of any VAT clawback or VAT payment obligations suffered by the Landlord as a result of such Alienation (hereinafter referred to in this Lease as a VAT Adjustment); and
(ii) because the VAT Adjustment payable under sub-clause (i) above is or may be subject to tax in the hands of the Landlord, such further sum (the “Additional Payment”) as will leave the Landlord in at least the same position as if the VAT Adjustment had not been subject to tax and for the purpose of calculating the Additional Payment it shall be assumed, if not otherwise the case, that the VAT Adjustment and the Additional Payment constitute the sole income of the Landlord and that the Landlord has no deductible expenses, losses or allowances for tax purposes for offset or reduction against such income or receipt and the Tenant shall keep the Landlord indemnified in respect of any such VAT Adjustment and Additional Payment. In respect of the above, the Landlord agrees to furnish to the Tenant a calculation of any sums due (the “Statement”) signed by the Landlord’s auditors or tax advisors and such Statement shall (save in the case of manifest error) be final and binding on the parties. All amounts shall be paid in advance to the Landlord prior to issuing consent to any proposed alienation.
Appears in 1 contract
Sources: Lease (Virata Corp)
Alienation. 3.10.1 Not to assign, transfer, underlet, assign underlet or part with the possession or occupation or share the possession of the Demised Premises or any part thereof save that the Tenant may with the prior written consent of the Landlord assign the whole or suffer any person to occupy underlet the Demised Premises whole or any part thereof of the Premises provided always that no such consent shall be required if the assignee or under-tenant is the associate or connected company or affiliate of the holding or a subsidiary company of the Tenant or in the case of a merger or consolidation of the Tenant or upon the sale of all the assets of the Tenant.
3.10.2 If the Landlord so reasonably requires as a licensee BUT SO THAT NOTWITHSTANDING condition of granting consent to assign the foregoing proposed assignee shall furnish the Landlord with a guarantee of payment of the rents reserved and performance of all the covenants on the part of the Tenant in this Lease from a guarantor of financial standing reasonably acceptable to the Landlord.
3.10.3 The Landlord is entitled to give consent to an assignment subject to the condition that before the Tenant assigns this Lease the Tenant enters into an Agreement under which he guarantees the performance of the proposed assignee of all the covenants on the part of the Tenant contained in this Lease and whereby the Tenant agrees that in the event this Lease is disclaimed and on being so promptly requested by the Landlord it will accept the grant of a new tenancy of the Premises on the same terms and conditions as this Lease at the date of the disclaimer and for a term expiring on the term expiration date of this Lease.
3.10.4 The Landlord shall not unreasonably withhold or delay its consent to an assignment of application by the entire of Tenant to underlet the Demised Premises or an underletting of the entire whole or part of the Demised Premises to an assignee/underlessee that constitutes an institutionally acceptable covenant and that is of good and sufficient financial standing (and in the case of an assignment, is otherwise to the reasonable satisfaction where all of the Landlord) sufficient to meet its obligations as aforesaid subject always to the following provisions or such of them as may be appropriate, that is to sayconditions are satisfied:
(a) The Tenant shall prior to any such alienation as aforesaid apply to 3.10.4.1 the Landlord and give all reasonable information concerning the proposed transaction and concerning the proposed assignee, under-lessee, licensee or disponee as the Landlord may reasonably require;
(b) The Landlord’s consent (if given) to any such alienation shall be in writing and shall be given in such manner as the Landlord shall decide acting reasonably and the Tenant shall pay the reasonable vouched costs of the Landlord properly incurred in connection with the furnishing of such decision;
(c) In the case of an assignment to a limited liability company which is not an institutionally acceptable covenant and of good and sufficient financial standing to meet its obligations as aforesaid, it shall be deemed reasonable for the Landlord to require that a guarantor or guarantors of financial standing satisfactory to the Landlord (acting reasonably) shall join in such consent as aforesaid as surety or sureties for such Company in order jointly and severally to covenant prospective undertenant covenants with the Landlord in the manner described in the guarantee contained in the Schedule 8 (mutatis mutandis);
(d) In the case of an underlease, the Tenant agrees to use reasonable endeavours to ensure that the terms and conditions of any underlease remain confidential as between the Landlord and the Tenant and shall not be disclosed by the Tenant to any third party without the Landlord's prior written approval, except as required by Law;
(e) In the case of an underlease, the same shall be of either the entire of the Demised Premises or part of the Demised Premises PROVIDED THAT
(A) The Tenant may sub-let on a floor-by-floor basis subject to a maximum of four (4) sub-lettings at any one time;
(B) The Tenant may sub-let part only of a floor subject to a cap of two sub-tenants per floor and at a minimum of 50% of the floor area of a particular floor the Landlord acknowledging that the remaining un-let space may be less than 50% of a particular floor and subject further to the maximum of four (4) sub-lettings of the Demised Premises referenced in clause 4.20.1(f)(A) above and PROVIDED THAT the Tenant has obtained the necessary Fire Safety Certificate and Disability Access Certificate and any other consents or approvals for the sub-division of any floor; and
(C) The Tenant shall be entitled to sub-let the entire of the part of the Demised Premises comprising Nos. 4, 5 & 6 Sir ▇▇▇▇ ▇▇▇▇▇▇▇▇’▇ Quay which sub-letting shall not be considered a sub-letting for the purposes of the restrictions set out in clauses 4.20.1(f)(A) and 4.20.1(f)(B) above. and PROVIDED FURTHER that the Tenant has obtained the necessary Fire Safety Certificate and Disability Access Certificate and any other consents or approvals for the sub-division of any floor. In the case of such underlease the same shall be made without taking a fine or premium at the then full current open market rent and the under-lessee shall, if form reasonably required by the Landlord, enter into a direct covenant with the Landlord to perform and observe all the covenants (other than that for payment of the rents hereby reserved) and conditions herein contained and every such under-lease shall also be subject to the following conditions, that is to say that it shall contain:-
(i) provisions for the review of the rent thereby reserved (which the Tenant hereby covenants to operate will observe and enforce) corresponding except as to terms and dates but in all other respects (mutatis mutandis) with the rent review provisions contained in this Lease;
(ii) a covenant by the undertenant (which the Tenant hereby covenants to use reasonable endeavours to enforce) prohibiting the undertenant from doing or suffering any act or thing upon or in relation to the Demised Premises in breach of, the provisions of this Lease;
(iii) Any such sublease shall absolutely cease and determine if for whatever reason (including forfeiture) this Lease is terminated or expires (but the Landlord acknowledges that this shall be subject to any sub-tenant statutory rights which any sub-tenant may have entitling the sub-tenant to remain in occupation) (without prejudice to any claims the Landlord may have against the Tenant if such rights arise due to any breach of perform the Tenant's covenants and obligations in such underlease;
3.10.4.2 no fine or premium is taken by the Tenant for the grant of the underlease;
3.10.4.3 the underlease contains the same provisions as to assignment and underletting as are contained in this Lease) and the Tenant shall procure Lease subject to an additional condition that the sub-lessee vacates the premises underlet to it at the expiration or sooner determination of the Term;
(iv) a condition for re-entry on breach of any covenant by the undertenant;
(v) the same restrictions as to alienation, assignment, underletting, parting with or sharing the possession or occupation of the premises underlet; and
(vi) a confirmation of renunciation of statutory renewal rights;
(f) To enforce at the Tenant’s own expense the performance and observance by every such undertenant of the covenants, provisions and conditions of the under-lease and not, at any time, either expressly or by implication, to waive any breach of the same;
(g) Not to agree any reviewed rent with the undertenant or any rent payable on any renewal thereof without the prior written consent of the Landlord under this Lease shall have been obtained prior to any assignment or underletting (such consent not to be unreasonably withheld or delayed but provided always that nothing herein shall prevent the Tenant from complying with any independent determination process provided for in the rent review clauses of the sub-lease;
(h) Not to produce evidence of, refer to or seek to rely upon during any rent review pursuant to Schedule 4 the terms, conditions and/or existence of any under-letting(s) of part or all of the Demised Premises created by the Tenant including but not limited to the rent payable under any such under-letting(sdelayed);
(i) Not to vary the terms of 3.10.4.4 any permitted under-lease without the prior written consent of the Landlord not to be unreasonably withheld or delayed.
(j) For the avoidance of doubt, in the case of an assignment, underletting, parting with possession or occupation of the Demised Premises or any part thereof or sufferance of any person to occupy the Demised Premises or any part thereof as a licensee or concessionaire (an “Alienation”), it such underlease shall be reasonable for excluded from the Landlord to withhold consent to any such Alienation operation of the Demised Premises or part thereof where the Alienation would, in the reasonable opinion of the Landlord, have the effect or give rise to a termination of the Landlord’s Option to Tax. PROVIDED ALWAYS THAT it shall not be reasonable for the Landlord to withhold such consent in circumstances where prior to any such proposed Alienation the Tenant pays or procures the payment to the Landlord of:
(i) an amount equal to the amount of any VAT clawback or VAT payment obligations suffered by the Landlord as a result of such Alienation (hereinafter referred to in this Lease as a VAT Adjustment); and
(ii) because the VAT Adjustment payable under subSections 24-clause (i) above is or may be subject to tax in the hands of the Landlord, such further sum (the “Additional Payment”) as will leave the Landlord in at least the same position as if the VAT Adjustment had not been subject to tax and for the purpose of calculating the Additional Payment it shall be assumed, if not otherwise the case, that the VAT Adjustment and the Additional Payment constitute the sole income 28 of the Landlord and that ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ by Court Order granted prior to the under-tenant of the underlet premises.
3.10.5 Within 14 days after any dealing with or transmission or devolution of the Premises or any interest in them shall give to the Landlord has no deductible expenses, losses notice in writing specifying the basic particulars of the matters in question and at the same time supply a certified copy of any instrument making or allowances for tax purposes for offset or reduction against such income or receipt evidencing it and pay a registration fee of (pound)20.
3.10.6 From time to time on demand during the Term the Tenant shall keep provide the Landlord indemnified with particulars of all derivative interests of or in respect the Premises and copies of any such VAT Adjustment relevant documents and Additional Payment. In respect the identity of the above, occupiers of the Landlord agrees to furnish to the Tenant a calculation of any sums due (the “Statement”) signed by the Landlord’s auditors or tax advisors and such Statement shall (save in the case of manifest error) be final and binding on the parties. All amounts shall be paid in advance to the Landlord prior to issuing consent to any proposed alienationPremises.
Appears in 1 contract
Alienation. Not to assign, transfer, underlet, or part with the possession or occupation of the Demised Premises or any part thereof or suffer any person to occupy the Demised Premises or any part thereof as a licensee BUT SO THAT NOTWITHSTANDING the foregoing the Landlord shall not unreasonably withhold or delay its consent to an assignment of the entire of the Demised Premises or an underletting of the entire or part of the Demised Premises to an assignee/underlessee that constitutes an institutionally acceptable covenant and that is of good and sufficient financial standing (and in the case of an assignment, is otherwise Subject to the reasonable satisfaction terms of Clause 20 the Landlord) sufficient to meet its obligations as aforesaid subject always to the following provisions or such of them as may be appropriate, that is to say:
(a) The Tenant shall prior to any such alienation as aforesaid apply to the Landlord and give all reasonable information concerning the proposed transaction and concerning the proposed assignee, under-lessee, licensee or disponee as the Landlord may reasonably require;
(b) The Landlord’s consent (if given) to any such alienation shall be in writing and shall be given in such manner as the Landlord shall decide acting reasonably and the Tenant shall pay the reasonable vouched costs of the Landlord properly incurred in connection with the furnishing of such decision;
(c) In the case of an assignment to a limited liability company which is not an institutionally acceptable covenant and of good and sufficient financial standing to meet its obligations as aforesaid, it shall be deemed reasonable for the Landlord to require that a guarantor or guarantors of financial standing satisfactory to the Landlord (acting reasonably) shall join in such consent as aforesaid as surety or sureties for such Company in order jointly and severally to covenant with the Landlord in the manner described in the guarantee contained in the Schedule 8 (mutatis mutandis);
(d) In the case of an underlease, the Tenant agrees to use reasonable endeavours to ensure that the terms and conditions of any underlease remain confidential as between the Landlord and the Tenant and Seller shall not be disclosed by the Tenant to any third party entitled, without the Landlord's prior written approvalconsent in writing of the Buyer, except as required by Law;
to (ei) In the case assign, transfer or novate, all or any of an underlease, the same their respective rights and benefits under this Agreement; or (ii) make a declaration of trust in respect of or enter into any arrangement under which it agrees to hold in trust for any person all or any of its rights and benefits under this Agreement. The Seller shall be of either entitled, without the entire consent of the Demised Premises or part Buyer, to assign its rights and/or benefits under this Agreement by way of the Demised Premises PROVIDED THAT
(A) The Tenant may sub-let on a floor-by-floor basis subject security to a maximum of four (4) sub-lettings at Finance Party and any one time;
(B) The Tenant may sub-let part only of a floor subject to a cap of two sub-tenants per floor and at a minimum of 50% of the floor area of a particular floor the Landlord acknowledging that the remaining un-let space may be less than 50% of a particular floor and subject further assignment pursuant to the maximum enforcement of four (4) sub-lettings of the Demised Premises referenced in clause 4.20.1(f)(A) above and PROVIDED THAT the Tenant has obtained the necessary Fire Safety Certificate and Disability Access Certificate and any other consents or approvals for the sub-division of any floor; and
(C) such security. The Tenant Buyer shall be entitled to sub-let the entire of the part of the Demised Premises comprising Nos. 4, 5 & 6 Sir ▇▇▇▇ ▇▇▇▇▇▇▇▇’▇ Quay which sub-letting shall not be considered a sub-letting for the purposes of the restrictions set out assign its interest in clauses 4.20.1(f)(A) and 4.20.1(f)(B) above. and PROVIDED FURTHER that the Tenant has obtained the necessary Fire Safety Certificate and Disability Access Certificate and this Contract to any other consents or approvals for the sub-division of any floor. In the case of such underlease the same shall be made without taking a fine or premium at the then full current open market rent and the under-lessee shall, if required by the Landlord, enter into a direct covenant person with the Landlord to perform and observe all the covenants (other than that for payment of the rents hereby reserved) and conditions herein contained and every such under-lease shall also be subject to the following conditions, that is to say that it shall contain:-
(i) provisions for the review of the rent thereby reserved (which the Tenant hereby covenants to operate and enforce) corresponding except as to terms and dates but in all other respects (mutatis mutandis) with the rent review provisions contained in this Lease;
(ii) a covenant by the undertenant (which the Tenant hereby covenants to use reasonable endeavours to enforce) prohibiting the undertenant from doing or suffering any act or thing upon or in relation to the Demised Premises in breach of, the provisions of this Lease;
(iii) Any such sublease shall absolutely cease and determine if for whatever reason (including forfeiture) this Lease is terminated or expires (but the Landlord acknowledges that this shall be subject to any sub-tenant statutory rights which any sub-tenant may have entitling the sub-tenant to remain in occupation) (without prejudice to any claims the Landlord may have against the Tenant if such rights arise due to any breach of the Tenant's covenants in this Lease) and the Tenant shall procure that the sub-lessee vacates the premises underlet to it at the expiration or sooner determination of the Term;
(iv) a condition for re-entry on breach of any covenant by the undertenant;
(v) the same restrictions as to alienation, assignment, underletting, parting with or sharing the possession or occupation of the premises underlet; and
(vi) a confirmation of renunciation of statutory renewal rights;
(f) To enforce at the Tenant’s own expense the performance and observance by every such undertenant of the covenants, provisions and conditions of the under-lease and not, at any time, either expressly or by implication, to waive any breach of the same;
(g) Not to agree any reviewed rent with the undertenant or any rent payable on any renewal thereof without the prior written consent of the Landlord such consent Seller, not to be unreasonably withheld or delayed but if the proposed assignee is demonstrably capable of fulfilling the Buyer's remaining obligations in this Agreement for the remainder of the Contract Period, provided always that nothing herein shall prevent the Tenant from complying with any independent determination process provided for in proposed assignee undertakes to the rent review clauses Seller (by way of direct undertaking to the Seller on terms acceptable to the Seller, acting reasonably) to implement the Buyer’s obligations under this Agreement or, at the Seller’s request, to take a novation of the sub-lease;
(h) Not Buyer's rights and obligations under this Agreement, in terms of an agreement that is acceptable to produce evidence ofthe Seller, refer to acting reasonably. All costs properly and reasonably incurred by the Seller in terms of this Clause 19.3 shall be met by the Buyer. Transfer of Specified Project Site The Seller shall be prohibited from transferring its interest in all or seek to rely upon during any rent review pursuant to Schedule 4 the terms, conditions and/or existence of any under-letting(s) of part or all of the Demised Premises created by the Tenant including but not limited to the rent payable Specified Project Site or assigning its interest under any such under-letting(s);
(i) Not to vary this Agreement in whole or in part, save in compliance with the terms of this Clause 20. The Seller shall be obliged to transfer its interest in this Contract to any permitted under-lease without party (in this Clause 20, "the Assignee"), that is simultaneously acquiring the Seller's interest in all or any part of the Specified Project Site (in this Clause 20, "the Transferred Part") subject to the following provisions: the Seller shall provide the Buyer with not less than 30 Business Days' prior written notice of the proposed transfer (in this Clause 20, "the Assignation"), including details of the Assignee, such period to allow for Parties and the Assignee to complete the remainder of the steps required pursuant to this Clause 20.2; the Assignee shall undertake to the Buyer (by way of direct undertaking to the Buyer on terms acceptable to the Buyer, acting reasonably) to implement the Seller’s obligations under this Contract insofar as relating to the Transferred Part or, at the Buyer’s request, to take a novation of the Seller's rights and obligations under this Agreement insofar as relating to the Transferred Part, in terms of an agreement that is acceptable to the Buyer, acting reasonably; if the Specified Project is a Secured Project then at completion of the Assignation in compliance with the remaining provisions of this Clause 20.2 the Assignee shall provide the Buyer with a Subscribed Standard Security over the Transferred Part, in exchange for delivery by the Buyer of a discharge (or deed of restriction if appropriate), releasing the Transferred Part from the Standard Security in favour of the Buyer; the Seller shall exhibit on or prior to completion of the Assignation a Legal Report brought down to a date as near as practicable to the date of completion which Report will show: no entries adverse to the Seller's interest in the Specified Project Site (or relevant part thereof); where the Seller's interest in the Specified Project Site is registered in the Land Register of Scotland:- the Advance Notice for the Standard Security by the Assignee; and no other Advance Notices the Seller shall exhibit clear searches in the Personal Register against the Assignee brought down to a date as near as practicable to the date of completion of the Assignation showing nothing prejudicial to the ability of the Assignee to validly enter into documentation entered into pursuant to this Clause 20.2; the Seller shall exhibit a search in the Register of Community Interests in Land brought down as near as practicable to the date of completion of the Assignation showing nothing prejudicial to the ability of the Assignee to validly grant the Standard Security to the Buyer; the Seller shall exhibit a letter of consent to the grant of the Standard Security by the Assignee from any party holding (or being simultaneously granted) a standard security affecting the Transferred Part, in a form approved by the Buyer, acting reasonably. If required by the holder of any standard security the Seller will deliver a ranking agreement in respect of each such standard security, validly executed by the Assignee and the holder/grantee of such standard security (such ranking agreement to be in terms to be approved by the Buyer acting reasonably and providing for (a) the holder of such standard security to rank ahead of the Buyer’s Standard Security and (b) an acknowledgement that any power of sale included within such standard security would be exercised subject to and with the benefit of this Agreement), together with signed land registration forms in respect of the interests of the Assignee and the holder of the other standard security respectively; In the event that the Assignee is a company or industrial and provident society, the Seller shall exhibit searches in the Register of Charges and company file of the Assignee (including a search to identify the directors and the secretary of the Assignee as at the date of signing documentation Subscribed pursuant to this Clause 20.2) from the date of its incorporation or the date of inception of the Register (whichever is the later) brought down: as near as practicable to the date of completion of the Assignation; and within 3 months following the date of completion of the Assignation, to a date at least thirty six days after date of completion of the Assignation in both cases disclosing no entry prejudicial to the Assignee's ability to enter into documentation Subscribed by the Assignee pursuant to this Clause 20.2; the Seller shall exhibit a letter of non-crystallisation from the holder of each and every floating charge affecting the Transferred Part, such letter to be in the chargeholder's usual form and to include consent to the Assignee entering into any documentation that it enters into pursuant to this Clause 20.2 that would require the consent of the Landlord chargeholder; The Seller shall be responsible for ensuring that all obligations under the Governing Code that relate to a change in identity of the party that manages the Specified Project are complied with as part of the transfer of the Transferred Part, and that the Buyer is provided with evidence thereof; and All costs properly and reasonably incurred by the Buyer in terms of this Clause 20.2 shall be met by the Seller Change in Control If there is no Change in Control Restriction then the consent of the Seller shall not be required in respect of a Change in Control of the Buyer; If there is a Change in Control Restriction then a Change in Control in the Buyer can take place with the consent of the Seller, not to be unreasonably withheld or delayed.
(j) For delayed if the avoidance Buyer following such proposed Change in Control is demonstrably capable of doubt, fulfilling the Buyer's remaining obligations in this Agreement for the case of an assignment, underletting, parting with possession or occupation remainder of the Demised Premises or any part thereof or sufferance Contract Period. All costs properly and reasonably incurred by the Seller in terms of any person to occupy the Demised Premises or any part thereof as a licensee or concessionaire (an “Alienation”), it this Clause 21.2 shall be reasonable for the Landlord to withhold consent to any such Alienation of the Demised Premises or part thereof where the Alienation would, in the reasonable opinion of the Landlord, have the effect or give rise to a termination of the Landlord’s Option to Tax. PROVIDED ALWAYS THAT it shall not be reasonable for the Landlord to withhold such consent in circumstances where prior to any such proposed Alienation the Tenant pays or procures the payment to the Landlord of:
(i) an amount equal to the amount of any VAT clawback or VAT payment obligations suffered met by the Landlord Buyer. Further Assurance Each Party shall execute such documents and do such acts and things as a result of such Alienation (hereinafter referred to in this Lease as a VAT Adjustment); and
(ii) because the VAT Adjustment payable under sub-clause (i) above is or other Party may be subject to tax in the hands of the Landlord, such further sum (the “Additional Payment”) as will leave the Landlord in at least the same position as if the VAT Adjustment had not been subject to tax and reasonably require for the purpose of calculating the Additional Payment it shall be assumed, if not otherwise the case, that the VAT Adjustment and the Additional Payment constitute the sole income of the Landlord and that the Landlord has no deductible expenses, losses or allowances for tax purposes for offset or reduction against such income or receipt and the Tenant shall keep the Landlord indemnified in respect of any such VAT Adjustment and Additional Payment. In respect of the above, the Landlord agrees to furnish giving effect to the Tenant a calculation provisions of any sums due (the “Statement”) signed by the Landlord’s auditors or tax advisors and such Statement shall (save in the case of manifest error) be final and binding on the parties. All amounts shall be paid in advance to the Landlord prior to issuing consent to any proposed alienationthis Agreement.
Appears in 1 contract
Sources: Carbon Unit Purchase Agreement
Alienation. Not 4.15.1 If the Tenant at any time proposes to assign, transfer, underlet, assign or part underlet the whole of the Premises the Tenant shall first by an irrevocable unconditional written notice (“the Tenant’s Notice”) served upon the Landlord offer to surrender or assign this lease to the Landlord upon such financial terms and conditions as the Tenant may desire
4.15.2 During the period of fifteen working days following service of the Tenant’s Notice the Landlord may serve on the Tenant a notice in relation to the surrender created by this clause 4.15 in a form complying with the possession or occupation requirements of Schedule 3 to the Demised Premises or any part thereof or suffer any person to occupy the Demised Premises or any part thereof as Order (a licensee BUT SO THAT NOTWITHSTANDING the foregoing “Warning Notice”).
4.15.3 If the Landlord shall serve a Warning Notice the Tenant shall make a duly executed declaration or statutory declaration in a form complying with the requirements of Schedule 4 of the Order (a “Declaration”) as soon as reasonably practicable and the offer contained in the Tenant’s Notice shall remain irrevocable and open for acceptance by the Landlord until the service on the Tenant of the Counter-Notice pursuant to clause 4.15.4.
4.15.4 Within fifteen working days of receipt of the Tenant’s Notice or, if later, the date of receipt of the Declaration from the Tenant (in respect of which time shall be of the essence) the Landlord may issue a counter-notice (“the Counter-Notice”) upon the Tenant stating the Landlord wishes to accept such surrender or assignment on the terms specified in the Tenant’s Notice
4.15.5 If the Landlord serves a Counter-Notice on the Tenant then the Tenant shall surrender or assign (at the Landlord’s option) this lease to the Landlord and the Landlord shall accept an obligation to take a surrender or assignment of this lease (as the case may be) upon the terms specified in the Tenant’s Notice within 15 working days of receipt of the Counter-Notice by the Tenant either with vacant possession or subject only to a permitted underletting and the Tenant’s liability hereunder shall cease in respect of any matters arising following the date of such assignment or surrender and the Tenant shall be released from all its obligations hereunder but without prejudice to any antecedent breaches of covenant save in respect of reinstatement in relation to which the Tenant shall be required to leave the Premises in a clean and tidy condition (with all furniture removed) but not reinstated to the Reinstatement Specification. Upon completion of such surrender or assignment (as the case may be) the Landlord shall (by deed) execute a formal release of the Tenant’s obligations hereunder in such form as the Tenant shall reasonably require
(A) If the Landlord does not take a surrender or assignment of this lease within the period specified in sub-clause 4.15.4 above for whatever reason then the Tenant’s obligation to surrender or assign to the Landlord under sub-clause 4.15.4 shall cease and the Tenant must (if it still wishes to assign or underlet this lease) complete its assignment or underletting on terms no worse than the financial terms and conditions stipulated in the Tenant’s Notice within 6 months from the date of the Tenant’s Notice extended by such period as results from the Landlord unreasonably withhold withholding or delay delaying the issue of its consent and if the Tenant shall fail to an assignment complete within such period if it still wishes to assign or underlet the whole of the entire Premises it must reinstate the procedure set out in this clause 4.15
(B) If the Landlord does not serve a Counter-Notice upon the Tenant within the fifteen working day period specified in sub-clause 4.15.4 above then the Tenant must (if it still wishes to assign or underlet this lease) complete its assignment or underletting on financial terms no worse than the terms and conditions stipulated in the Tenant’s Notice within 6 months from the date of the Demised Tenant’s Notice extended by such period as results from the Landlord unreasonably withholding or delaying the issue of its consent and if the Tenant shall fail to complete within such period if it still wishes to assign or underlet the whole of the Premises it must reinstate the procedure set out in this clause 4.15
(A) Subject to the foregoing provisions of this sub-clause 4.15 not to assign mortgage charge or underlet or in any other manner part with possession of any part (being less than the whole) of the Premises or an underletting agree to do so except that the Tenant may underlet the whole of (but not more or less than) any Permitted Part or Permitted Parts or share occupation in accordance with sub-clauses 4.15.9 to 4.15.13
(B) Subject to the foregoing provisions of this sub-clause 4.15 not to assign underlet or otherwise part with possession of the entire or part whole of the Demised Premises or agree to do so except that the Tenant may assign or underlet the whole of the Premises in accordance with sub-clauses 4.15.8 to 4.15.12
(C) In the event that the Tenant proposes to assign or underlet the whole of the premises demised under the Level 24 Lease and Level 26 Lease or either solely the Level 24 Lease or solely the Level 26 Lease at the same time as this lease and has served the equivalent Tenant’s Notice on the Landlord pursuant to clause 4.15.1 of the Level 24 Lease and the Level 26 Lease in respect of each of the Level 24 Lease and the Level 26 Lease or pursuant to clause 4.15.1 of the Level 24 Lease or pursuant to clause 4.15.1 of the Level 26 Lease (as appropriate), and the Landlord has served a Counter-Notice for this lease, the Landlord must also serve such equivalent counter-notice on the Tenant as provided for in the Level 24 Lease and/or the Level 26 Lease (as appropriate).
(A) Not to assign the whole of the Premises without first obtaining the Landlord’s consent issued within three months before completion of the assignment which consent shall not be unreasonably withheld or delayed but which may be granted subject to any one or more of the conditions referred to in clause 4.15.8 (B) and which may be withheld if the circumstance referred to in clause 4.15.8 (C) exists. For the avoidance of doubt, the provisions of this clause 4.15.8 shall not apply in the event that the Landlord has served a Counter-Notice and the Tenant assigns this Lease to the Landlord in accordance with clause 4.15.5 hereof.
(B) The conditions referred to in clause 4.15.8 (A) above (which are specified for the purposes of section 19(1A) Landlord and Tenant Act 1927) are:
(1) that the Tenant shall enter into an assignee/underlessee authorised guarantee agreement (as defined in section 16 Landlord and Tenant (Covenants) Act 1995) with the Landlord in a form which the Landlord reasonably requires
(2) that constitutes an institutionally acceptable covenant any guarantor of the Tenant’s obligations under this lease shall have guaranteed to the Landlord that the Tenant will comply with the terms and that is conditions of good and sufficient financial standing the authorised guarantee agreement referred to in sub-clause clause 4.15.8 (B)(1) on terms and in a form which the case of an assignment, is otherwise to Landlord reasonably requires
(3) that if so reasonably required by the reasonable satisfaction of Landlord the Landlord) sufficient to meet its obligations as aforesaid subject always to the following provisions or such of them as may be appropriate, that is to say:proposed assignee shall have either procured
(a) The Tenant shall prior to any such alienation as aforesaid apply to covenants with the Landlord and give all reasonable information concerning the proposed transaction and concerning the proposed assignee, under-lessee, licensee or disponee as the Landlord may reasonably require;
(b) The Landlord’s consent (if given) to any such alienation shall be in writing and shall be given in such manner as the Landlord shall decide acting reasonably and the Tenant shall pay the reasonable vouched costs of the Landlord properly incurred in connection with the furnishing of such decision;
(c) In the case of an assignment to a limited liability company which is not an institutionally acceptable covenant and of good and sufficient financial standing to meet its obligations as aforesaid, it shall be deemed reasonable for the Landlord to require that by a guarantor or guarantors of financial standing satisfactory (not being the Tenant or Tenant’s Guarantor) reasonably acceptable to the Landlord, in a form acceptable to the Landlord (acting reasonably); or
(b) shall join in such consent as aforesaid as surety or sureties for such Company in order jointly and severally to covenant a deposit with the Landlord in the manner described in the guarantee contained in the Schedule 8 (mutatis mutandis);
(d) In the case of an underlease, the Tenant agrees to use reasonable endeavours to ensure that the terms and conditions of any underlease remain confidential as between the Landlord and the Tenant and shall such sum not be disclosed by the Tenant to any third party without the Landlord's prior written approval, except as required by Law;
(e) In the case of an underlease, the same shall be of either the entire of the Demised Premises or part of the Demised Premises PROVIDED THAT
(A) The Tenant may sub-let on a floor-by-floor basis subject to a maximum of four (4) sub-lettings at any one time;
(B) The Tenant may sub-let part only of a floor subject to a cap of two sub-tenants per floor and at a minimum of 50% of the floor area of a particular floor the Landlord acknowledging that the remaining un-let space may be less than 50% of a particular floor the then current annual rent first reserved by this lease together with any VAT thereon as fourthly reserved by this lease (and subject further to including provisions for increase of the maximum sum deposited following any future review of four the rent first reserved by this lease) on such terms as the Landlord may reasonably require as additional security for the discharge of the Tenant’s obligations under this lease
(4) sub-lettings if the proposed assignee is a Group Company the Tenant shall have procured either:
(a) if the Tenant’s obligations under this lease are guaranteed by another Group Company that such Group Company covenants with the Landlord on terms reasonably acceptable to (but no more onerous than the existing guarantee) the Landlord (which shall include a covenant to accept a new lease in the same form as this lease mutatis mutandis if any of the Demised Premises referenced circumstances referred to in clause 4.20.1(f)(A) above and PROVIDED THAT 7.1 arise in respect of the Tenant has obtained or any assignee); or
(b) if there is no guarantor of the necessary Fire Safety Certificate Tenant’s obligations under this lease and Disability Access Certificate if the assignee is not at the date of the application for consent to the proposed assignment in the reasonable opinion of the Landlord of financial standing equivalent to or greater than the Tenant at the date of this lease that the proposed assignee procures covenants by a Group Company which is not the Tenant or the proposed assignee and which is in the reasonable opinion of the Landlord of financial standing equivalent to or greater than the Tenant on terms reasonably acceptable to the Landlord (which shall include a covenant to accept a new lease in the same form as this lease mutatis mutandis if any other consents of the circumstances referred to in clause 7.1 arise in respect of the Tenant or approvals for the sub-division of any floor; andassignee)
(C) The Tenant shall be entitled circumstance referred to sub-let the entire of the part of the Demised Premises comprising Nos. 4, 5 & 6 Sir ▇▇▇▇ ▇▇▇▇▇▇▇▇’▇ Quay in clause 4.15.8 (A) above (which sub-letting shall not be considered a sub-letting is specified for the purposes of the restrictions set out in clauses 4.20.1(f)(Asection 19(1A) Landlord and 4.20.1(f)(BTenant Act 1927) above. is where any sums due and PROVIDED FURTHER that properly demanded from the Tenant has obtained to the necessary Fire Safety Certificate Landlord under this lease (not being the subject of a bona fide dispute) remain unpaid at the date of the application for consent to the proposed assignment
4.15.9 Not to underlet the whole of the Premises or any Permitted Part (each being referred to in this paragraph as the premises) except:
(A) to a person who before the underletting shall have covenanted with the Landlord to observe and Disability Access Certificate and any other consents or approvals for perform the Tenant’s obligations under this lease during the sub-division term to the extent they relate to the premises demised by the underletting (other than the payment of rents) and shall have covenanted not to assign or underlet the whole of the premises without the Landlord’s consent (which shall not be unreasonably withheld or delayed) and shall have given an unqualified covenant not to assign or underlet part of the premises or otherwise part with possession or share the occupation of the premises or any floor. In the case part of such underlease them other than on the same shall be made basis as sub-clause (4.15.10(C) below (applying mutatis mutandis to the sub-tenant)
(B) by reserving as a yearly rent without taking payment of a fine or premium at (in addition to the service and insurance and other rents payable under this lease except the rent first hereby reserved or (in the case of underletting of a Permitted Part) a pro rata proportion of them) an amount not less than:
(1) (in the case of an underletting of the Premises) the then full current open market rent and of the underPremises
(2) (in the case of an underletting of a Permitted Part) the then open market rent of the Permitted Part (notwithstanding that this may be less than a pro-lessee shall, if required rata proportion of the then open market rent of the Premises as a whole)
(C) by a form of underlease:
(1) by which the principal rent reserved by the Landlord, enter into a direct covenant underlease is reviewed upwards only at each of those Review Dates which will occur during the sub term in accordance with the Landlord to perform and observe all the covenants (other than that for payment of the rents hereby reserved) and conditions herein contained and every such under-lease shall also be subject to the following conditions, that is to say that it shall contain:-
(i) provisions for the review of the rent thereby reserved (which the Tenant hereby covenants to operate and enforce) corresponding except as to terms and dates but in all other respects same principles (mutatis mutandis) with as apply to the rent review provisions contained in first reserved by this Lease;lease
(ii2) a requiring the underlessee to observe and perform all the covenants and other provisions binding on the Tenant under this lease (other than the covenant by the undertenant (which Tenant to pay the Tenant hereby covenants to use reasonable endeavours to enforceseveral rents reserved hereunder) prohibiting the undertenant from doing or suffering any act or thing upon or in relation to the Demised Premises in breach of, extent they relate to the provisions of this Lease;premises and containing:
(iii) Any such sublease shall absolutely cease and determine if for whatever reason (including forfeiture) this Lease is terminated or expires (but the Landlord acknowledges that this shall be subject to any sub-tenant statutory rights which any sub-tenant may have entitling the sub-tenant to remain in occupation) (without prejudice to any claims the Landlord may have against the Tenant if such rights arise due to any breach of the Tenant's covenants in this Lease) and the Tenant shall procure that the sub-lessee vacates the premises underlet to it at the expiration or sooner determination of the Term;
(iva) a condition for re-entry by the underlessor on breach of any covenant by the undertenant;underlessee
(vb) a qualified covenant not to assign or underlet the same restrictions as whole of the premises and an absolute covenant not to alienation, assignment, underletting, parting assign or underlet part of the premises or to otherwise part with or sharing the possession or share the occupation of the premises underlet; andor any part of them save by way of group company sharing
(vic) a confirmation whereby the provisions of renunciation of statutory renewal rights;
(f) To enforce at the Tenant’s own expense the performance and observance by every such undertenant of the covenants, provisions and conditions of the under-lease and not, at any time, either expressly or by implication, sections 24 to waive any breach of the same;
(g) Not to agree any reviewed rent with the undertenant or any rent payable on any renewal thereof without the prior written consent 28 inclusive of the Landlord such consent not to be unreasonably withheld or delayed but provided always that nothing herein shall prevent the Tenant from complying with any independent determination process provided for and ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ have been excluded in the rent review clauses of the sub-lease;
(h) Not to produce evidence of, refer to or seek to rely upon during any rent review pursuant to Schedule 4 the terms, conditions and/or existence of any under-letting(s) of part or all of the Demised Premises created by the Tenant including but not limited relation to the rent payable under any such under-letting(s);
(i) Not to vary the terms of any permitted under-lease without the prior written consent underlease in accordance with section 38A of the Landlord and ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ before the underlease is granted or if earlier the underlessee becomes contractually bound to take it
(D) with the Landlord’s consent issued within three months before completion of the underletting which consent (subject to compliance with the foregoing conditions precedent) shall not to be unreasonably withheld or delayed.
4.15.10 In relation to an underlease of a Permitted Part:
(jA) For the avoidance of doubt, not to include in the case of an assignment, underletting, parting with possession or occupation of sub-demise the Demised Premises whole or any part thereof or sufferance of any person to occupy the Demised Premises or any part thereof as a licensee or concessionaire (an “Alienation”), it shall be reasonable for the Landlord to withhold consent to any such Alienation of the Demised Premises entrance to or part thereof where the Alienation would, in the reasonable opinion reception area of the Landlord, have the effect or give rise to a termination of the Landlord’s Option to Tax. PROVIDED ALWAYS THAT it shall not be reasonable for the Landlord to withhold such consent in circumstances where prior to any such proposed Alienation the Tenant pays or procures the payment to the Landlord of:Premises
(iB) an amount equal to except from the amount of any VAT clawback or VAT payment obligations suffered by underlease all necessary circulation areas and plant and equipment which will serve the Landlord Premises in common (C) not as a result of such Alienation the grant to create or permit the creation of more than two separate occupations affecting the whole of each floor of the Premises (hereinafter referred occupations under this lease counting as one occupation save where the occupation under this lease is only of corridor areas and ducts common to in this Lease as a VAT Adjustment); and
(ii) because the VAT Adjustment payable under sub-clause (i) above is or may be subject to tax in the hands of the Landlord, such further sum (the “Additional Payment”) as will leave the Landlord in at least the same position as if the VAT Adjustment had not been subject to tax and for the purpose of calculating the Additional Payment it shall be assumed, if not otherwise the case, that the VAT Adjustment and the Additional Payment constitute the sole income of the Landlord and that the Landlord has no deductible expenses, losses or allowances for tax purposes for offset or reduction against such income or receipt and the Tenant shall keep the Landlord indemnified in respect of any such VAT Adjustment and Additional Payment. In respect of the above, the Landlord agrees to furnish to the Tenant a calculation of any sums due (the “Statement”) signed by the Landlord’s auditors or tax advisors and such Statement shall (save in the case of manifest error) be final and binding on the parties. All amounts shall be paid in advance to the Landlord prior to issuing consent to any proposed alienation.demises)
Appears in 1 contract
Alienation. Not to assign, mortgage, charge, transfer, underlet, or part with the possession or occupation of the Demised Premises or any part thereof or suffer any person to occupy the Demised Premises or any part thereof as a licensee BUT SO THAT NOTWITHSTANDING the foregoing the Landlord shall not unreasonably withhold or delay its consent to an assignment of the entire of the Demised Premises or to an underletting of the entire or part of the Demised Premises to an assignee/assignee or underlessee that constitutes an institutionally acceptable covenant and that is of good and sufficient financial standing (and in the case of an assignment, is otherwise reasonably acceptable to the reasonable satisfaction of the Landlord) sufficient to meet its obligations as aforesaid Landlord subject always to the following provisions or such of them as may be appropriate, that is to say:say:-
(a) 4.20.1 The Tenant shall prior to any such alienation as aforesaid apply to the Landlord and give all reasonable information concerning the proposed transaction and concerning the proposed assignee, under-lessee, licensee lessee or disponee as the Landlord may reasonably require;
(b) 4.20.2 The Landlord’s consent (if given) to any such alienation shall be in writing and shall be given in such manner as the Landlord shall decide acting reasonably and the Tenant shall pay the reasonable vouched costs of the Landlord properly incurred in connection with the furnishing of such decisionconsent;
(c) 4.20.3 In the case of an assignment to a limited liability company which is not an institutionally acceptable covenant and of good and sufficient financial standing to meet its obligations as aforesaidcompany, it shall be deemed reasonable for the Landlord to require that a guarantor or guarantors two directors of financial standing satisfactory to the Landlord (acting reasonably) shall join in such consent as aforesaid as surety or sureties for such Company in order jointly and severally to covenant with the Landlord in the manner described in the guarantee contained in the Sixth Schedule 8 (mutatis mutandis);
(d) 4.20.4 In the case of an underlease, the Tenant agrees to use reasonable endeavours to ensure that the terms and conditions of any underlease remain confidential as between the Landlord and the Tenant and shall not be disclosed by the Tenant to any third party without the Landlord's prior written approval, except as required by Law;
(e) In the case of an underlease, under-lease the same shall be of either the entire of the Demised Premises or part of the Demised Premises PROVIDED THAT
(A) The Tenant may sub-let on a floor-by-floor basis subject to a maximum of four (4) sub-lettings at any one time;
(B) The Tenant may sub-let part only of a floor subject to a cap of two sub-tenants per floor and at a minimum of 50% of the floor area of a particular floor the Landlord acknowledging that the remaining un-let space may be less than 50% of a particular floor and subject further to the maximum of four (4) sub-lettings of the Demised Premises referenced in clause 4.20.1(f)(A) above and PROVIDED THAT the Tenant has obtained the necessary Fire Safety Certificate and Disability Access Certificate and any other consents or approvals for the sub-division of any floor; and
(C) The Tenant shall be entitled to sub-let the entire of the part of the Demised Premises comprising Nos. 4, 5 & 6 Sir ▇▇▇▇ ▇▇▇▇▇▇▇▇’▇ Quay which sub-letting shall not be considered a sub-letting for the purposes of the restrictions set out in clauses 4.20.1(f)(A) and 4.20.1(f)(B) above. and PROVIDED FURTHER that the Tenant has obtained the necessary Fire Safety Certificate and Disability Access Certificate and any other consents or approvals for the sub-division of any floor. In the case of such underlease the same shall be made without taking a fine or premium at the then full current open market rent or at the rent payable hereunder at the time of the granting of such under-lease (whichever is the higher) and the under-lessee shall, if required by the Landlord, enter into a direct covenant with the Landlord to perform and observe all the covenants (other than that for payment of the rents hereby reserved) and conditions herein contained and every such under-lease shall also be subject to the following conditions, that is to say that it shall contain:-contain:- 9 Table of Contents
(i) 4.20.4.1 provisions for the review of the rent thereby reserved (which the Tenant hereby covenants to operate and enforce) on an upwards only basis corresponding except both as to terms and dates but and in all other respects (mutatis mutandis) with the rent review provisions contained in this Lease;
(ii) 4.20.4.2 a covenant, condition or proviso under which the rent from time to time payable under such under-lease shall not be less than the rent from time to time payable hereunder;
4.20.4.3 a covenant by the undertenant (which the Tenant hereby covenants to use reasonable endeavours to enforce) prohibiting the undertenant from doing or suffering any act or thing upon or in relation to the Demised Premises inconsistent with, or in breach of, the provisions of this Lease;
(iii) Any such sublease shall absolutely cease and determine if for whatever reason (including forfeiture) this Lease is terminated or expires (but the Landlord acknowledges that this shall be subject to any sub-tenant statutory rights which any sub-tenant may have entitling the sub-tenant to remain in occupation) (without prejudice to any claims the Landlord may have against the Tenant if such rights arise due to any breach of the Tenant's covenants in this Lease) and the Tenant shall procure that the sub-lessee vacates the premises underlet to it at the expiration or sooner determination of the Term;
(iv) 4.20.4.4 a condition for re-entry on breach of any covenant by the undertenant;
(v) 4.20.4.5 the same restrictions as to alienation, assignment, underletting, parting with or sharing the possession or occupation of the premises underlet; and
(vi) a confirmation of renunciation of statutory renewal rights;
(f) 4.20.5 To enforce at the Tenant’s own expense the performance and observance by every such undertenant of the covenants, provisions and conditions of the under-lease and not, at any time, either expressly or by implication, to waive any breach of the same;
(g) 4.20.6 Not to agree any reviewed rent with the undertenant or any rent payable on any renewal thereof without the prior written consent of the Landlord (such consent not to be unreasonably withheld or delayed but provided always that nothing herein shall prevent the Tenant from complying with any independent determination process provided for in the rent review clauses of the sub-lease;
(h) Not to produce evidence of, refer to or seek to rely upon during any rent review pursuant to Schedule 4 the terms, conditions and/or existence of any under-letting(s) of part or all of the Demised Premises created by the Tenant including but not limited to the rent payable under any such under-letting(sdelayed);
(i) 4.20.7 Not to vary the terms or accept any surrender of any permitted under-under- lease without the prior written consent of the Landlord Landlord, such consent not to be unreasonably withheld or delayed.
(j) For the avoidance of doubt, in the case of an assignment, underletting, parting with possession or occupation of the Demised Premises or any part thereof or sufferance of any person to occupy the Demised Premises or any part thereof as a licensee or concessionaire (an “Alienation”), it shall be reasonable for the Landlord to withhold consent to any such Alienation of the Demised Premises or part thereof where the Alienation would, in the reasonable opinion of the Landlord, have the effect or give rise to a termination of the Landlord’s Option to Tax. PROVIDED ALWAYS THAT it shall not be reasonable for the Landlord to withhold such consent in circumstances where prior to any such proposed Alienation the Tenant pays or procures the payment to the Landlord of:
(i) an amount equal to the amount of any VAT clawback or VAT payment obligations suffered by the Landlord as a result of such Alienation (hereinafter referred to in this Lease as a VAT Adjustment); and
(ii) because the VAT Adjustment payable under sub-clause (i) above is or may be subject to tax in the hands of the Landlord, such further sum (the “Additional Payment”) as will leave the Landlord in at least the same position as if the VAT Adjustment had not been subject to tax and for the purpose of calculating the Additional Payment it shall be assumed, if not otherwise the case, that the VAT Adjustment and the Additional Payment constitute the sole income of the Landlord and that the Landlord has no deductible expenses, losses or allowances for tax purposes for offset or reduction against such income or receipt and the Tenant shall keep the Landlord indemnified in respect of any such VAT Adjustment and Additional Payment. In respect of the above, the Landlord agrees to furnish to the Tenant a calculation of any sums due (the “Statement”) signed by the Landlord’s auditors or tax advisors and such Statement shall (save in the case of manifest error) be final and binding on the parties. All amounts shall be paid in advance to the Landlord prior to issuing consent to any proposed alienation.
Appears in 1 contract
Sources: Lease Agreement (Amarin Corp Plc\uk)
Alienation. Not Lessor shall have the right, at its sole cost and expense, to assign, transfersell or encumber any interest of Lessor in the Aircraft (other than the Hush Kits) or this Lease and/or the proceeds hereof subject to the rights of Lessee under the provisions of this Lease, underletand in accordance with Applicable Law; and provided that the Aircraft shall remain registered in the United States, or part with and provided further that in the possession or occupation event of a sale of the Demised Premises or Aircraft, any part thereof or suffer any person to occupy the Demised Premises or any part thereof as such purchaser shall be a licensee BUT SO THAT NOTWITHSTANDING the foregoing the Landlord shall not unreasonably withhold or delay its consent to an assignment Person of the entire of the Demised Premises or an underletting of the entire or part of the Demised Premises to an assignee/underlessee that constitutes an institutionally acceptable covenant recognized standing and that is of good and sufficient financial standing (and ability in the case of an assignment, is otherwise aviation industry so as to be able to fulfill its obligations as lessor hereunder to the reasonable satisfaction of the Landlord) sufficient Lessee. To effect or facilitate any such assignment, sale or encumbrance, Lessee agrees to meet its obligations as aforesaid subject always to the following provisions provide, at Lessor's sole cost and expense, such agreements, consents, conveyances or such of them documents as may be appropriatereasonably requested by Lessor, which shall include, without limitation, in the event of a sale complying herewith, an unrestricted release of Lessor from its obligations under this Lease. The agreements, covenants, obligations and liabilities contained herein including, but not limited to, all obligations to pay Rent and indemnify each Indemnitee are made for the benefit of each Indemnitee and their respective successors and permitted assigns; provided, however, that is no assignment, sale or encumbrance shall increase the aggregate financial exposure or Rent obligations of Lessee under this Lease as compared to say:
(a) The Tenant shall prior to any what such alienation as aforesaid apply to the Landlord and give all reasonable information concerning the proposed transaction and concerning the proposed assigneeobligations would have been had such assignment, under-lessee, licensee sale or disponee as the Landlord may reasonably require;
(b) The Landlord’s consent (if given) to any such alienation shall be in writing and shall be given in such manner as the Landlord shall decide acting reasonably and the Tenant shall pay the reasonable vouched costs of the Landlord properly incurred in connection with the furnishing of such decision;
(c) In the case of an assignment to a limited liability company which is encumbrance not an institutionally acceptable covenant and of good and sufficient financial standing to meet its obligations as aforesaid, it shall be deemed reasonable for the Landlord to require that a guarantor or guarantors of financial standing satisfactory to the Landlord (acting reasonably) shall join in such consent as aforesaid as surety or sureties for such Company in order jointly and severally to covenant with the Landlord in the manner described in the guarantee contained in the Schedule 8 (mutatis mutandis);
(d) In the case of an underlease, the Tenant agrees to use reasonable endeavours to ensure that the terms and conditions of any underlease remain confidential as between the Landlord and the Tenant and shall not be disclosed by the Tenant to any third party without the Landlord's prior written approval, except as required by Law;
(e) In the case of an underlease, the same shall be of either the entire of the Demised Premises or part of the Demised Premises PROVIDED THAT
(A) The Tenant may sub-let on a floor-by-floor basis subject to a maximum of four (4) sub-lettings at any one time;
(B) The Tenant may sub-let part only of a floor subject to a cap of two sub-tenants per floor and at a minimum of 50% of the floor area of a particular floor the Landlord acknowledging that the remaining un-let space may be less than 50% of a particular floor and subject further to the maximum of four (4) sub-lettings of the Demised Premises referenced in clause 4.20.1(f)(A) above and PROVIDED THAT the Tenant has obtained the necessary Fire Safety Certificate and Disability Access Certificate and any other consents or approvals for the sub-division of any floor; and
(C) The Tenant shall be entitled to sub-let the entire of the part of the Demised Premises comprising Nos. 4, 5 & 6 Sir ▇▇▇▇ ▇▇▇▇▇▇▇▇’▇ Quay which sub-letting shall not be considered a sub-letting for the purposes of the restrictions set out in clauses 4.20.1(f)(A) and 4.20.1(f)(B) above. and PROVIDED FURTHER that the Tenant has obtained the necessary Fire Safety Certificate and Disability Access Certificate and any other consents or approvals for the sub-division of any flooroccurred. In the case of such underlease the same event this Lease is assigned, sold or encumbered by Lessor, any assignee, transferee or Lessor Lender shall be made without taking agree in writing delivered to Lessee as a fine condition precedent thereto not to disturb or premium at the then full current open market rent and the under-lessee shall, if required by the Landlord, enter into a direct covenant otherwise interfere with the Landlord to perform and observe all the covenants (other than that for payment quiet enjoyment by Lessee of the rents hereby reserved) Aircraft so long as no Default or Event of Default shall have occurred and conditions herein contained be continuing, and every that such under-lease assignee, transferee or Lessor Lender shall also be have no interest whatsoever in the Hush Kits absent Lessee's express transfer or conveyance thereof in a written bill ▇▇ sale. Any purchaser of the Aircraft subject to the following conditionsLease shall assume the obligations of Lessor, that is to say that it shall contain:-
(i) provisions for the review of the rent thereby reserved (which the Tenant hereby covenants to operate and enforce) corresponding except as to terms and dates but in all other respects (mutatis mutandis) with the rent review provisions contained in this Lease;
(ii) a covenant by the undertenant (which the Tenant hereby covenants to use reasonable endeavours to enforce) prohibiting the undertenant from doing or suffering any act or thing upon or in relation to the Demised Premises in breach of, the provisions of this Lease;
(iii) Any such sublease shall absolutely cease and determine if for whatever reason (specifically including forfeiture) this Lease is terminated or expires (but the Landlord acknowledges that this shall be subject to any sub-tenant statutory rights which any sub-tenant may have entitling the sub-tenant to remain in occupation) (without prejudice to any claims the Landlord may have against the Tenant if such rights arise due to any breach of the TenantLessor's covenants in this Lease) and the Tenant shall procure that the sub-lessee vacates the premises underlet to it at the expiration or sooner determination of the Term;
(iv) a condition for re-entry on breach of any covenant by the undertenant;
(v) the same restrictions as to alienation, assignment, underletting, parting with or sharing the possession or occupation of the premises underlet; and
(vi) a confirmation of renunciation of statutory renewal rights;
(f) To enforce at the Tenant’s own expense the performance and observance by every such undertenant of the covenants, provisions and conditions of the under-lease and not, at any time, either expressly or by implication, to waive any breach of the same;
(g) Not to agree any reviewed rent with the undertenant or any rent payable on any renewal thereof without the prior written consent of the Landlord such consent not to be unreasonably withheld or delayed but provided always that nothing herein shall prevent the Tenant from complying with any independent determination process provided for in the rent review clauses of the sub-lease;
(h) Not to produce evidence of, refer to or seek to rely upon during any rent review pursuant to Schedule 4 the terms, conditions and/or existence of any under-letting(s) of part or all of the Demised Premises created by the Tenant including but not limited to the rent payable under any such under-letting(s);
(i) Not to vary the terms of any permitted under-lease without the prior written consent of the Landlord not to be unreasonably withheld or delayed.
(j) For the avoidance of doubt, in the case of an assignment, underletting, parting with possession or occupation of the Demised Premises or any part thereof or sufferance of any person to occupy the Demised Premises or any part thereof as a licensee or concessionaire (an “Alienation”), it shall be reasonable for the Landlord to withhold consent to any such Alienation of the Demised Premises or part thereof where the Alienation would, in the reasonable opinion of the Landlord, have the effect or give rise to a termination of the Landlord’s Option to Tax. PROVIDED ALWAYS THAT it shall not be reasonable for the Landlord to withhold such consent in circumstances where prior to any such proposed Alienation the Tenant pays or procures the payment to the Landlord of:
(i) an amount equal to the amount of any VAT clawback or VAT payment obligations suffered by the Landlord as a result of such Alienation (hereinafter referred to in this Lease as a VAT Adjustment); and
(ii) because the VAT Adjustment payable under sub-clause (i) above is or may be subject to tax in the hands of the Landlord, such further sum (the “Additional Payment”) as will leave the Landlord in at least the same position as if the VAT Adjustment had not been subject to tax and for the purpose of calculating the Additional Payment it shall be assumed, if not otherwise the case, that the VAT Adjustment and the Additional Payment constitute the sole income of the Landlord and that the Landlord has no deductible expenses, losses or allowances for tax purposes for offset or reduction against such income or receipt and the Tenant shall keep the Landlord indemnified in respect of any such VAT Adjustment and Additional Payment. In respect of the above, the Landlord agrees to furnish to the Tenant a calculation of any sums due (the “Statement”) signed by the Landlord’s auditors or tax advisors and such Statement shall (save in the case of manifest error) be final and binding on the parties. All amounts shall be paid in advance to the Landlord prior to issuing consent to any proposed alienation.obligations
Appears in 1 contract
Alienation. Not to assign, transfer, underlet, or part with the possession or occupation of the Demised Premises or any part thereof or suffer any person to occupy the Demised Premises or any part thereof as a licensee BUT SO THAT NOTWITHSTANDING the foregoing the Landlord shall not unreasonably withhold or delay its consent to an assignment of the entire of the Demised Premises or an underletting of the entire or part of the Demised Premises to an assignee/underlessee that constitutes an institutionally acceptable covenant and that is of good and sufficient financial standing (and in the case of an assignment, is otherwise to the reasonable satisfaction of the Landlord) sufficient to meet its obligations as aforesaid subject always to the following provisions or such of them as may be appropriate, that is to say:
(a) The Tenant shall prior to any such alienation as aforesaid apply to the Landlord and give all reasonable information concerning the proposed transaction and concerning the proposed assignee, under-lessee, licensee or disponee as the Landlord may reasonably require;
(b) The Landlord’s consent (if given) to any such alienation shall be in writing and shall be given in such manner as the Landlord shall decide acting reasonably and the Tenant shall pay the reasonable vouched costs of the Landlord properly incurred in connection with the furnishing of such decision;
(c) In the case of an assignment to a limited liability company which is not an institutionally acceptable covenant and of good and sufficient financial standing to meet its obligations as aforesaid, it shall be deemed reasonable for the Landlord to require that a guarantor or guarantors of financial standing satisfactory to the Landlord (acting reasonably) shall join in such consent as aforesaid as surety or sureties for such Company in order jointly and severally to covenant with the Landlord in the manner described in the guarantee contained in the Schedule 8 (mutatis mutandis);
(d) In the case of an underlease, the Tenant agrees to use reasonable endeavours to ensure that the terms and conditions of any underlease remain confidential as between the Landlord and the Tenant and shall not be disclosed by the Tenant to any third party without the Landlord's prior written approval, except as required by Law;
(e) In the case of an underlease, the same shall be of either the entire of the Demised Premises or part of the Demised Premises PROVIDED THAT
(A) The Tenant may sub-let on a floor-by-floor basis subject to a maximum of four (4) sub-lettings at any one time;
(B) The Tenant may sub-let part only of a floor subject to a cap of two sub-tenants per floor and at a minimum of 50% of the floor area of a particular floor the Landlord acknowledging that the remaining un-let space may be less than 50% of a particular floor and subject further to the maximum of four (4) sub-lettings of the Demised Premises referenced in clause 4.20.1(f)(A) above and PROVIDED THAT the Tenant has obtained the necessary Fire Safety Certificate and Disability Access Certificate and any other consents or approvals for the sub-division of any floor; and
(C) 9.1 The Tenant shall be entitled to sub-let the entire of the part of the Demised Premises comprising Nos. 4prohibited from assigning, 5 & 6 Sir ▇▇▇▇ ▇▇▇▇▇▇▇▇’▇ Quay which sub-letting shall not be considered a sub-letting for the purposes of the restrictions set out in clauses 4.20.1(f)(A) and 4.20.1(f)(B) above. and PROVIDED FURTHER that the Tenant has obtained the necessary Fire Safety Certificate and Disability Access Certificate and any other consents or approvals for the sub-division of any floor. In the case of such underlease the same shall be made without taking a fine or premium at the then full current open market rent and the under-lessee shall, if required by the Landlord, enter into a direct covenant otherwise dealing with the Landlord to perform and observe all the covenants (other than that for payment of the rents hereby reserved) and conditions herein contained and every such under-lease shall also be subject to the following conditions, that is to say that it shall contain:-
(i) provisions for the review of the rent thereby reserved (which the Tenant hereby covenants to operate and enforce) corresponding except as to terms and dates but in all other respects (mutatis mutandis) with the rent review provisions contained in this Lease;
(ii) a covenant by the undertenant (which the Tenant hereby covenants to use reasonable endeavours to enforce) prohibiting the undertenant from doing or suffering any act or thing upon or in relation to the Demised Premises in breach of, the provisions of this Lease;
(iii) Any such sublease shall absolutely cease and determine if for whatever reason (including forfeiture) its interest under this Lease is terminated in whole or expires (but the Landlord acknowledges that this shall be subject to any sub-tenant statutory rights which any sub-tenant may have entitling the sub-tenant to remain in occupation) (without prejudice to any claims the Landlord may have against the Tenant if such rights arise due to any breach of the Tenant's covenants in this Lease) and the Tenant shall procure that the sub-lessee vacates the premises underlet to it at the expiration or sooner determination of the Term;
(iv) a condition for re-entry on breach of any covenant by the undertenant;
(v) the same restrictions as to alienationpart thereof, assignment, underletting, parting with or sharing the possession or occupation of the premises underlet; and
(vi) a confirmation of renunciation of statutory renewal rights;
(f) To enforce at the Tenant’s own expense the performance and observance by every such undertenant of the covenants, provisions and conditions of the under-lease and not, at any time, either expressly or by implication, to waive any breach of the same;
(g) Not to agree any reviewed rent with the undertenant or any rent payable on any renewal thereof without the prior written consent of the Landlord such Landlord, said consent not to be unreasonably withheld or delayed but provided always that nothing herein shall prevent the Tenant from complying with any independent determination process provided for in the rent review clauses of the sub-lease;
(h) Not to produce evidence of, refer to or seek to rely upon during any rent review pursuant to Schedule 4 the terms, conditions and/or existence of any under-letting(s) of part or all of the Demised Premises created by the Tenant including but not limited to the rent payable under any such under-letting(s);
(i) Not to vary the terms of any permitted under-lease without the prior written consent of the Landlord not to be unreasonably withheld or delayed.
(j) For the avoidance of doubt, in the case of an assignmenta proposed assignee or sub- tenant of sound financial standing and demonstrably capable of performing the Tenant’s obligations under the Lease including, underlettingwithout prejudice, parting with possession or occupation the obligation to pay Rent. The parties hereto agree that the Landlord shall not be acting unreasonably in granting a conditional consent to any proposed assignation of the Demised Premises or any part thereof or sufferance of any person to occupy Tenant’s interest under the Demised Premises or any part thereof as a licensee or concessionaire (an “Alienation”)Lease. Furthermore, it shall be reasonable for the Landlord, in granting such consent, to insist that any proposed assignee deliver a bond on terms similar to the Bond securing a sum not less than the Restoration Sum (the terms of said substitute bond to be acceptable to the Landlord and to be no less favourable to the Landlord than the terms of the Bond).
9.2 It is hereby acknowledged that the Tenant may require funding from a bank or other financial institution (the “Funder”) to construct and operate the Development and that, in arranging such finance, the Funder may require, as a condition of the availability of that finance, to enter into a direct agreement with the Landlord to withhold consent to cover any such Alienation or all of the Demised Premises or part thereof where following matters and any related ancillary matters reasonably requested by the Alienation would, in Funder:-
9.2.1 an acknowledgement by the reasonable opinion Landlord of any security taken by the Landlord, have Funder over the effect or Tenant and its assets;
9.2.2 an obligation to give rise notice to a termination the Funder of any intended exercise of the Landlord’s Option rights to Tax. PROVIDED ALWAYS THAT it shall not be reasonable for terminate this Lease;
9.2.3 the ability of a receiver appointed by the Funder, pursuant to a charge in favour of the Funder following a default by the Tenants under its finance agreement with the Funder, to assign this Lease, subject always to the terms of Clause 9.1 above;
9.2.4 a step in right to allow the Funder to ensure that the obligations of the Tenant are complied with so as to prevent any circumstances arising under which the Landlord could seek to withhold such consent terminate this Lease;
9.2.5 an acknowledgement by the Funder that if it exercises its step in circumstances where prior to any such proposed Alienation rights then it will be on the basis that it is assuming all of the rights and obligations of the Tenant pays or procures under this Lease; and
9.3 The Landlord confirms that in the payment event of the Landlord being requested to do so by the Tenant, the Landlord will grant to the Funder a direct agreement containing such of the terms in Clause 9.2 as the Funder may require subject to the Landlord’s proper and reasonable legal fees and outlays incurred in doing so being met by the Tenant and subject to the Landlord of:
(i) an amount equal to being satisfied with the amount of any VAT clawback or VAT payment obligations suffered by the Landlord as a result of such Alienation (hereinafter referred to in this Lease as a VAT Adjustment); and
(ii) because the VAT Adjustment payable under sub-clause (i) above is or may be subject to tax in the hands financial covenant of the Landlord, such further sum (the “Additional Payment”) as will leave the Landlord in at least the same position as if the VAT Adjustment had not been subject to tax Funder and for the purpose of calculating the Additional Payment it shall be assumed, if not otherwise the case, satisfied that the VAT Adjustment and Funder is demonstrably capable of meeting the Additional Payment constitute Tenant’s obligations under the sole income of the Landlord and that the Landlord has no deductible expensesLease including, losses or allowances for tax purposes for offset or reduction against such income or receipt and the Tenant shall keep the Landlord indemnified in respect of any such VAT Adjustment and Additional Payment. In respect of the abovewithout prejudice, the Landlord agrees obligation to furnish to the Tenant a calculation of any sums due (the “Statement”) signed by the Landlord’s auditors or tax advisors and such Statement shall (save in the case of manifest error) be final and binding on the parties. All amounts shall be paid in advance to the Landlord prior to issuing consent to any proposed alienationpay Rent .
Appears in 1 contract
Sources: Lease Agreement
Alienation. (i) Not to assign, transfer, underlet, assign transfer mortgage change (save by way of floating charge) underlet licence share or part with the possession or occupation of the Demised Premises demised premises or any part thereof nor hold the demised premises on trust for or suffer as a nominee of any person to occupy company or body PROVIDED that the Demised Premises or any part thereof as a licensee BUT SO THAT NOTWITHSTANDING the foregoing the Landlord transaction mentioned in (ii) and (iii) of this sub-clause shall not unreasonably withhold or delay its consent constitute a breach of this covenant Back to an assignment of the entire of the Demised Premises or an underletting of the entire or part of the Demised Premises to an assignee/underlessee that constitutes an institutionally acceptable covenant and that is of good and sufficient financial standing (and in the case of an assignment, is otherwise to the reasonable satisfaction of the Landlord) sufficient to meet its obligations as aforesaid subject always to the following provisions or such of them as may be appropriate, that is to say:Contents
(a) The Tenant Not to assign the whole of the demised premises without first:-
(A) obtaining the written licence of the Landlord which shall prior to any such alienation as aforesaid apply to not be unreasonably withheld or delayed;
(B) satisfying the circumstances specified for the purpose of S.19(1A) of the Landlord and give all reasonable information concerning ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ and set out in subclause (b) below; and
(C) complying with the proposed transaction and concerning conditions specified for the proposed assignee, under-lessee, licensee or disponee as purposes of s.19(1A) of the Landlord may reasonably require;and ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ and set out in subclause (c) below
(b) The Landlord’s consent circumstances referred to in subclause (if givena) to any such alienation shall be in writing and shall be given in such manner as the Landlord shall decide acting reasonably and (B)are that:-
(A) all sums properly demanded and/or due from the Tenant shall pay under this Underlease have been paid at the reasonable vouched costs date of the Landlord properly incurred in connection with application for the furnishing of such decisionlicence to assign;
(cB) In in the Landlord’s reasonable opinion the assignee is at the date of the application for licence to assign likely to be able to pay the rents hereby reserved and comply with the tenant covenants of this Underlease and is likely to continue to be so able following the assignment; Back to Contents
(C) the assignee does not have the benefit of diplomatic immunity;
(D) in the case of an assignment to a limited liability company which is not an institutionally acceptable covenant and in the same group (within the meaning of good and sufficient financial standing to meet its obligations as aforesaid, it shall be deemed reasonable for Section 42 of the Landlord and Tenant Act 1954) as the Tenant the assignee is in the Landlord’s reasonable opinion a person who is at the date of the application for licence to require that a guarantor assign no less likely than the Tenant was at the date of the grant or guarantors assignment of financial standing satisfactory the Underlease to the Landlord Tenant to be able to comply with the tenant covenants of this Underlease and is likely to continue to be such a person following the assignment; and
(acting reasonablyc) The conditions referred to in subclause (a) (C) are that:-
(A) upon or before any assignment and before giving occupation to the assignee the Tenant shall join in such consent as aforesaid as surety or sureties for such Company in order jointly covenant by way of indemnity and severally to covenant guarantee with the Landlord in the manner described terms set out in the guarantee contained in the Schedule 8 (mutatis mutandis);
(d) In the case of an underlease, the Tenant agrees to use reasonable endeavours to ensure that the terms and conditions of any underlease remain confidential as between the Landlord and the Tenant and shall not be disclosed by the Tenant to any third party without the Landlord's prior written approval, except as required by Law;
(e) In the case of an underlease, the same shall be of either the entire of the Demised Premises or part of the Demised Premises PROVIDED THAT
(A) The Tenant may sub-let on a floor-by-floor basis subject to a maximum of four (4) sub-lettings at any one timeSecond Schedule;
(B) The Tenant may sub-let part only of a floor subject to a cap of two sub-tenants per floor and at a minimum of 50% of the floor area of a particular floor if so reasonably required by the Landlord acknowledging that the remaining un-let space may be less than 50% of assignee shall upon or before any assignment and before taking occupation obtain a particular floor and subject further guarantor or guarantors reasonably acceptable to the maximum Landlord who shall covenant by way of four indemnity and guarantee (4if more than one jointly and severally) sub-lettings of with the Demised Premises referenced Landlord in clause 4.20.1(f)(A) above and PROVIDED THAT the Tenant has obtained terms set out in the necessary Fire Safety Certificate and Disability Access Certificate and any other consents or approvals for the sub-division of any floorThird Schedule; and
(C) the written licence to assign contains a condition that if at any time prior to the assignment the circumstances (or any of them) specified in subclause (b) cease to exist the Landlord may revoke the licence by written notice to the Tenant
(d) The Tenant shall be entitled to sub-let furnish the entire Landlord on written demand with full particulars of all derivative interests and occupational rights of or in the demised premises or any part thereof however remote or inferior including particulars of the part rent or rents payable in respect of such derivative interests and shall supply such further particulars as the Landlord may reasonably require in respect thereof and without prejudice to the generality of the Demised Premises comprising Nos. 4, 5 & 6 Sir foregoing the Tenant shall within one month of service of a notice pursuant to section 40 of the Landlord and ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇’▇ Quay which provide to the Landlord in writing the information requested therein
(e) Notwithstanding (a) of this sub-letting shall not be considered a sub-letting for the purposes of the restrictions set out in clauses 4.20.1(f)(A) and 4.20.1(f)(B) above. and PROVIDED FURTHER that clause the Tenant has obtained the necessary Fire Safety Certificate and Disability Access Certificate and or any other consents or approvals for the sub-division of any floor. In the case of such underlease the same shall be made without taking a fine or premium at the then full current open market rent and the under-lessee shall, if required by the Landlord, enter into a direct covenant with the Landlord to perform and observe all the covenants (other than that for payment of the rents hereby reserved) and conditions herein contained and every such under-lease shall also be subject to the following conditions, that is to say that it shall contain:-
(i) provisions for the review of the rent thereby reserved (which the Tenant hereby covenants to operate and enforce) corresponding except as to terms and dates but in all other respects (mutatis mutandis) with the rent review provisions contained in this Lease;
(ii) a covenant by the lawful undertenant (which the Tenant hereby covenants to use reasonable endeavours to enforce) prohibiting the undertenant from doing or suffering any act or thing upon or in relation to the Demised Premises in breach of, the provisions of this Lease;
(iii) Any such sublease shall absolutely cease and determine if for whatever reason (including forfeiture) this Lease is terminated or expires (but the Landlord acknowledges that this shall be subject to any sub-tenant statutory rights which any sub-tenant may have entitling the sub-tenant to remain in occupation) (without prejudice to any claims the Landlord may have against the Tenant if such rights arise due to any breach of the Tenant's covenants in this Lease) and the Tenant shall procure that the sub-lessee vacates the premises underlet to it at the expiration or sooner determination of the Term;
(iv) a condition for re-entry on breach of any covenant by the undertenant;
(v) the same restrictions as to alienation, assignment, underletting, parting with or sharing the possession or share occupation of the demised premises underlet; and
(vi) a confirmation of renunciation of statutory renewal rights;
(f) To enforce at the Tenant’s own expense the performance and observance by every such undertenant of the covenants, provisions and conditions of the under-lease and not, at any time, either expressly or by implication, to waive any breach of the same;
(g) Not to agree any reviewed rent with the undertenant or any rent payable on any renewal thereof without the prior written consent of the Landlord such consent not to be unreasonably withheld or delayed but provided always that nothing herein shall prevent the Tenant from complying with any independent determination process provided for in the rent review clauses of the sub-lease;
(h) Not to produce evidence of, refer to or seek to rely upon during any rent review pursuant to Schedule 4 the terms, conditions and/or existence of any under-letting(s) of part or all of the Demised Premises created by the Tenant including but not limited to the rent payable under any such under-letting(s);
(i) Not to vary the terms of any permitted under-lease without the prior written consent of the Landlord not to be unreasonably withheld or delayed.
(j) For the avoidance of doubt, in the case of an assignment, underletting, parting with possession or occupation of the Demised Premises or any part thereof or sufferance of any person to occupy the Demised Premises or any part thereof as a licensee or concessionaire (an “Alienation”), it shall be reasonable for the Landlord to withhold consent to any such Alienation of the Demised Premises or part thereof where the Alienation would, in the reasonable opinion of the Landlord, have the effect or give rise to a termination of the Landlord’s Option to Tax. PROVIDED ALWAYS THAT it shall not be reasonable for the Landlord to withhold such consent in circumstances where prior to any such proposed Alienation the Tenant pays or procures the payment to the Landlord of:
(i) an amount equal to the amount of any VAT clawback or VAT payment obligations suffered by the Landlord as a result of such Alienation (hereinafter referred to in this Lease as a VAT Adjustment); and
(ii) because the VAT Adjustment payable under sub-clause (i) above company which is or may be subject to tax in the hands of the Landlord, such further sum (the “Additional Payment”) as will leave the Landlord in at least within the same position group of companies (as if the VAT Adjustment had not been subject to tax and for the purpose of calculating the Additional Payment it shall be assumed, if not otherwise the case, that the VAT Adjustment and the Additional Payment constitute the sole income defined by Section 42 of the Landlord and Tenant Act 1954) as the Tenant or the undertenant (as the case may be) PROVIDED that the Landlord has no deductible expenses, losses or allowances for tax purposes for offset or reduction against such income or receipt relationship of landlord and tenant is thereby created and the Tenant shall keep occupation is Back to Contents upon terms under which such company will vacate the Landlord indemnified in respect demised premises forthwith upon its ceasing to be within the same group of any such VAT Adjustment and Additional Payment. In respect of the above, the Landlord agrees to furnish to the Tenant a calculation of any sums due companies (the “Statement”) signed by the Landlord’s auditors or tax advisors and such Statement shall (save in the case of manifest error) be final and binding on the parties. All amounts shall be paid in advance to the Landlord prior to issuing consent to any proposed alienation.as defined aforesaid)
Appears in 1 contract
Sources: Underlease (Eidos PLC)
Alienation. Not 4.11.1 BRT shall not grant to assign, transfer, underlet, or part with third parties rights equivalent to the possession or occupation of the Demised Premises whole or any part thereof or suffer parts of the benefit of the rights under this Deed Provided Always That the consent of BRB for such grant which complies with the provisions of sub-clause 4.11.2 shall not be unreasonably withheld or delayed and Provided Further that no consent shall be required for any person grant of rights which does not purport to occupy grant to third parties rights of access to the Demised Premises Subjects.
4.11.2 No such grant as aforesaid shall be made otherwise than in compliance with the following terms:-
4.11.2.1 Any such grant shall be to a suitably licensed telecommunications or cable television operator;
4.11.2.2 Any such grant shall contain an undertaking by the grantee not to assign or otherwise deal with the whole or any part thereof as or parts of its subject matter without the prior consent of BRB and BRT subject to the proviso that the consents of BRB and BRT to an assignation of the whole to a licensee BUT SO THAT NOTWITHSTANDING the foregoing the Landlord suitably licensed telecommunications operator or cable television operator shall not be unreasonably withhold withheld or delay its consent to an assignment of the entire of the Demised Premises or an underletting of the entire or part of the Demised Premises to an assignee/underlessee that constitutes an institutionally acceptable covenant delayed and that is of good and sufficient financial standing (and in the case of an assignment, is otherwise to the reasonable satisfaction of the Landlord) sufficient to meet its obligations as aforesaid subject always to the following provisions or such of them as may be appropriate, that is to say:
(a) The Tenant shall prior to any such alienation as aforesaid apply to the Landlord and give all reasonable information concerning the proposed transaction and concerning the proposed assignee, under-lessee, licensee or disponee as the Landlord may reasonably require;
(b) The Landlord’s consent (if given) to any such alienation grant shall be in writing and shall a form approved by BRB (such approval not to be given in such manner as the Landlord shall decide acting reasonably and the Tenant shall pay the reasonable vouched costs of the Landlord properly incurred in connection with the furnishing of such decision;
(c) In the case of an assignment to a limited liability company which is not an institutionally acceptable covenant and of good and sufficient financial standing to meet its obligations as aforesaid, it shall be deemed reasonable for the Landlord to require that a guarantor unreasonably withheld or guarantors of financial standing satisfactory to the Landlord (acting reasonably) shall join in such consent as aforesaid as surety or sureties for such Company in order jointly and severally to covenant with the Landlord in the manner described in the guarantee contained in the Schedule 8 (mutatis mutandisdelayed);
(d) In the case of an underlease, the Tenant agrees to use reasonable endeavours to ensure that the terms and conditions of any underlease remain confidential as between the Landlord and the Tenant and shall not be disclosed by the Tenant to any third party without the Landlord's prior written approval, except as required by Law;
(e) In the case of an underlease, the same shall be of either the entire of the Demised Premises or part of the Demised Premises PROVIDED THAT
(A) The Tenant may sub-let on a floor-by-floor basis subject to a maximum of four (4) sub-lettings at any one time;
(B) The Tenant may sub-let part only of a floor subject to a cap of two sub-tenants per floor and at a minimum of 50% of the floor area of a particular floor the Landlord acknowledging that the remaining un-let space may be less than 50% of a particular floor and subject further to the maximum of four (4) sub-lettings of the Demised Premises referenced in clause 4.20.1(f)(A) above and PROVIDED THAT the Tenant has obtained the necessary Fire Safety Certificate and Disability Access Certificate and any other consents or approvals for the sub-division of any floor; and
(C) The Tenant shall be entitled to sub-let the entire of the part of the Demised Premises comprising Nos. 4, 5 & 6 Sir ▇▇▇▇ ▇▇▇▇▇▇▇▇’▇ Quay which sub-letting shall not be considered a sub-letting for the purposes of the restrictions set out in clauses 4.20.1(f)(A) and 4.20.1(f)(B) above. and PROVIDED FURTHER that the Tenant has obtained the necessary Fire Safety Certificate and Disability Access Certificate and any other consents or approvals for the sub-division of any floor. In the case of 4.11.2.3 Any such underlease the same shall be made without taking a fine or premium at the then full current open market rent and the under-lessee shall, if required by the Landlord, enter into a direct covenant with the Landlord to perform and observe all the covenants (other than that for payment of the rents hereby reserved) and conditions herein contained and every such under-lease shall also be subject to the following conditions, that is to say that it grant shall contain:-
(i) provisions for 4.11.2.3.1 an obligation binding the review of the rent thereby reserved (which the Tenant hereby covenants to operate and enforce) corresponding except as to terms and dates but in all other respects (mutatis mutandis) with the rent review provisions contained in this Lease;
(ii) a covenant by the undertenant (which the Tenant hereby covenants to use reasonable endeavours to enforce) grantee prohibiting the undertenant grantee from doing or suffering any act or thing upon or in relation which would contravene any of BRT’s obligations under this Deed; and
4.11.2.3.2 a provision entitling BRT to the Demised Premises in breach of, the provisions of this Lease;
(iii) Any terminate such sublease shall absolutely cease and determine if for whatever reason (including forfeiture) this Lease is terminated or expires (but the Landlord acknowledges that this shall be subject to any sub-tenant statutory rights which any sub-tenant may have entitling the sub-tenant to remain in occupation) (without prejudice to any claims the Landlord may have against the Tenant if such rights arise due to any breach of the Tenant's covenants in this Lease) and the Tenant shall procure that the sub-lessee vacates the premises underlet to it at the expiration or sooner determination of the Term;
(iv) a condition for re-entry grant on breach of any covenant such obligation by the undertenant;
(v) the same restrictions as to alienation, assignment, underletting, parting with or sharing the possession or occupation of the premises underletgrantee; and
(vi) a confirmation of renunciation of statutory renewal rights;
(f) To enforce at the Tenant’s own expense the performance and observance by every such undertenant 4.11.3 Within one month after any assignation or immediately derivative grant of the covenants, provisions and conditions of the under-lease and not, at any time, either expressly or by implication, to waive any breach of the same;
(g) Not to agree any reviewed rent with the undertenant or any rent payable on any renewal thereof without the prior written consent of the Landlord such consent not to be unreasonably withheld or delayed but provided always that nothing herein shall prevent the Tenant from complying with any independent determination process provided for in the rent review clauses of the sub-lease;
(h) Not to produce evidence of, refer to or seek to rely upon during any rent review pursuant to Schedule 4 the terms, conditions and/or existence of any under-letting(s) of part or all of the Demised Premises created by the Tenant including but not limited to the rent payable under any such under-letting(s);
(i) Not to vary the terms of any permitted under-lease without the prior written consent of the Landlord not to be unreasonably withheld or delayed.
(j) For the avoidance of doubt, in the case of an assignment, underletting, parting with possession or occupation of the Demised Premises whole or any part thereof of the benefit of this Deed or sufferance of the Rights or any person devolution of the interest of BRT in it or them to occupy give notice of it in writing to BRB and to produce to BRB a copy of the Demised Premises assignation or other document evidencing such dealing for retention by BRB;
4.11.4 From time to time on reasonable demand to furnish BRB with full particulars of all immediately derivative interests (including licences) of or in this Deed or the rights or any part thereof as a licensee of it or concessionaire (an “Alienation”), it shall be reasonable for copies of plans identifying the Landlord to withhold consent to any such Alienation of the Demised Premises or part thereof where the Alienation would, in the reasonable opinion of the Landlord, have the effect or give rise to a termination of the Landlord’s Option to Tax. PROVIDED ALWAYS THAT it shall not be reasonable for the Landlord to withhold such consent in circumstances where prior to any such proposed Alienation the Tenant pays or procures the payment to the Landlord of:
(i) an amount equal to the amount of any VAT clawback or VAT payment obligations suffered by the Landlord as a result extent of such Alienation (hereinafter referred to in this Lease as a VAT Adjustment); and
(ii) because the VAT Adjustment payable under sub-clause (i) above is or may be subject to tax in the hands of the Landlordinterests, and such further sum (the “Additional Payment”) particulars as will leave the Landlord in at least the same position as if the VAT Adjustment had not been subject to tax and for the purpose of calculating the Additional Payment it shall be assumed, if not otherwise the case, that the VAT Adjustment and the Additional Payment constitute the sole income of the Landlord and that the Landlord has no deductible expenses, losses or allowances for tax purposes for offset or reduction against such income or receipt and the Tenant shall keep the Landlord indemnified in respect of any such VAT Adjustment and Additional Payment. In respect of the above, the Landlord agrees to furnish to the Tenant a calculation of any sums due (the “Statement”) signed by the Landlord’s auditors or tax advisors and such Statement shall (save in the case of manifest error) be final and binding on the parties. All amounts shall be paid in advance to the Landlord prior to issuing consent to any proposed alienationBRB may reasonably require.
Appears in 1 contract
Sources: Telecommunications Agreement (Global Crossing Uk Telecommunications LTD)
Alienation. 5.26.1 Not to assign, transfer, underlet, assign or part with the possession or occupation of the Demised Premises or any part thereof or suffer any person to occupy the Demised Premises or any part thereof as a licensee BUT SO THAT NOTWITHSTANDING the foregoing the Landlord shall not unreasonably withhold or delay its consent to an assignment of the entire of the Demised Premises or an underletting of the entire or part of the Demised Premises to an assignee/underlessee that constitutes an institutionally acceptable covenant and that is of good and sufficient financial standing (and in the case of an assignment, is otherwise to the reasonable satisfaction of the Landlord) sufficient to meet its obligations as aforesaid subject always to the following provisions or such of them as may be appropriate, that is to say:
(a) The Tenant shall prior to any such alienation as aforesaid apply to the Landlord and give all reasonable information concerning the proposed transaction and concerning the proposed assignee, under-lessee, licensee or disponee as the Landlord may reasonably require;
(b) The Landlord’s consent (if given) to any such alienation shall be in writing and shall be given in such manner as the Landlord shall decide acting reasonably and the Tenant shall pay the reasonable vouched costs of the Landlord properly incurred in connection with the furnishing of such decision;
(c) In the case of an assignment to a limited liability company which is not an institutionally acceptable covenant and of good and sufficient financial standing to meet its obligations as aforesaid, it shall be deemed reasonable for the Landlord to require that a guarantor or guarantors of financial standing satisfactory to the Landlord (acting reasonably) shall join in such consent as aforesaid as surety or sureties for such Company in order jointly and severally to covenant with the Landlord in the manner described in the guarantee contained in the Schedule 8 (mutatis mutandis);
(d) In the case of an underlease, the Tenant agrees to use reasonable endeavours to ensure that the terms and conditions of any underlease remain confidential as between the Landlord and the Tenant and shall not be disclosed by the Tenant to any third party without the Landlord's prior written approval, except as required by Law;
(e) In the case of an underlease, the same shall be of either the entire of the Demised Premises or part of the Demised Premises PROVIDED THAT
(A) The Tenant may sub-let on (save only the Restaurant Space in terms of Sub-Clause 5.26.3) or grant a floor-by-floor basis subject to a maximum standard security over or otherwise in any way or for any purpose dispose of four (4) sub-lettings at any one time;
(B) The Tenant may sub-let or deal with the Tenant's interest in part only of the Property.
5.26.2 Not to assign or grant a floor subject to a cap standard security over or otherwise in any way or for any purpose dispose of two sub-tenants per floor and at a minimum of 50% of the floor area of a particular floor the Landlord acknowledging that the remaining un-let space may be less than 50% of a particular floor and subject further to the maximum of four (4) sub-lettings of the Demised Premises referenced in clause 4.20.1(f)(A) above and PROVIDED THAT the Tenant has obtained the necessary Fire Safety Certificate and Disability Access Certificate and any other consents or approvals for the sub-division of any floor; and
(C) The Tenant shall be entitled to sub-let the entire of the part of the Demised Premises comprising Nos. 4, 5 & 6 Sir ▇▇▇▇ ▇▇▇▇▇▇▇▇’▇ Quay which sub-letting shall not be considered a sub-letting for the purposes of the restrictions set out in clauses 4.20.1(f)(A) and 4.20.1(f)(B) above. and PROVIDED FURTHER that the Tenant has obtained the necessary Fire Safety Certificate and Disability Access Certificate and any other consents or approvals for the sub-division of any floor. In the case of such underlease the same shall be made without taking a fine or premium at the then full current open market rent and the under-lessee shall, if required by the Landlord, enter into a direct covenant deal with the Landlord to perform and observe all the covenants (other than that for payment of the rents hereby reserved) and conditions herein contained and every such under-lease shall also be subject to the following conditions, that is to say that it shall contain:-
(i) provisions for the review of the rent thereby reserved (which the Tenant hereby covenants to operate and enforce) corresponding except as to terms and dates but in all other respects (mutatis mutandis) with the rent review provisions contained in this Lease;
(ii) a covenant by the undertenant (which the Tenant hereby covenants to use reasonable endeavours to enforce) prohibiting the undertenant from doing or suffering any act or thing upon or in relation to the Demised Premises in breach of, the provisions of this Lease;
(iii) Any such sublease shall absolutely cease and determine if for whatever reason (including forfeiture) this Lease is terminated or expires (but the Landlord acknowledges that this shall be subject to any sub-tenant statutory rights which any sub-tenant may have entitling the sub-tenant to remain in occupation) (without prejudice to any claims the Landlord may have against the Tenant if such rights arise due to any breach of the Tenant's covenants interest in this Lease) and the Tenant shall procure that the sub-lessee vacates the premises underlet to it at the expiration or sooner determination whole of the Term;
(iv) a condition for re-entry on breach of any covenant by the undertenant;
(v) the same restrictions as to alienation, assignment, underletting, parting with or sharing the possession or occupation of the premises underlet; and
(vi) a confirmation of renunciation of statutory renewal rights;
(f) To enforce at the Tenant’s own expense the performance and observance by every such undertenant of the covenants, provisions and conditions of the under-lease and not, at any time, either expressly or by implication, to waive any breach of the same;
(g) Not to agree any reviewed rent with the undertenant or any rent payable on any renewal thereof Property without the prior written consent of the Landlord such which consent shall not be un- reasonably withheld in the cases of (1) an assignation to be unreasonably withheld or delayed but provided always that nothing herein shall prevent a responsible and respectable prospective assignee of sound financial standing and demonstrably capable of fulfilling the obligations incumbent upon the Tenant from complying with any independent determination process provided for under this Lease or (2) the granting of a standard security to a bona fide creditor of sound financial standing and demonstrably capable of fulfilling the obligations incumbent upon the Tenant under this Lease. For the avoidance of doubt, the Tenant shall be entitled to grant floating charges over their interest in this Lease without the rent review clauses consent of the Landlord.
5.26.3 Not to sub-lease;
(h) Not to produce evidence of, refer to or seek to rely upon during any rent review pursuant to Schedule 4 let the terms, conditions and/or existence of any under-letting(s) of part or all whole of the Demised Premises created by Property or the Tenant including but not limited to the rent payable under any such under-letting(s);
(i) Not to vary the terms of any permitted under-lease Restaurant Space without the prior written consent of the Landlord, which consent shall not be unreasonably withheld in the case of a sub-letting of the whole of the Property or the Restaurant Space to a respectable and responsible sub-tenant, at a rent in the case of a sub-letting of the whole of the Property which at the date when occupation shall commence is not less than the full market rental value of the Property as a whole (ignoring any abatement of rent which may then be applying in terms of this Lease)and without payment of any fine or premium the Tenant shall ensure that in any permitted sub-lease there shall be provisions, which the Tenant undertakes to the Landlord to operate and enforce, that:-
5.26.3.1 the rent payable under such sub-lease shall be payable no less frequently than one quarter in advance and shall be subject to review in an upward direction only at such times and either substantially the same as the provisions for rent reviews provided for under this Lease or are otherwise approved by the Landlord, such approval not to be unreasonably withheld or delayed.
(j) For the avoidance of doubt, and deemed granted in the case of an assignmentany rent reviews to open market rent;
5.26.3.2 the sub-lease shall contain obligations on the sub-tenant mutatis mutandis the same as the obligations on the part of the Tenant contained in this Lease (save for payment of rent); and
5.26.3.3 the sub-tenant thereunder shall be prohibited from assigning or charging its interest under such sub-lease without the consent of the Landlord (which consent shall not be unreasonably withheld) and from granting any further sub-lease.
5.26.4 The Tenant shall:-
5.26.4.1 not vary the terms of any sub-lease without the Landlord's written approval, underlettingsuch approval not to be unreasonably withheld;
5.26.4.2 not permit any reduction or commutation of the rent payable under any sub-lease;
5.26.4.3 not agree the amount of the reviewed rent under the sub-lease without the Landlord's written approval, parting such approval not to be unreasonably withheld;
5.26.4.4 ensure that the Landlord's representations as to the rent which ought to be payable are made to the person appointed to determine the rent under such sub-lease to the reasonable satisfaction of the Landlord; and
5.26.4.5 ensure that the rent payable under any permitted sub-lease is reviewed in accordance with its terms.
5.26.5 Not to part with or share possession or occupation of the Demised Premises Property or any part thereof or sufferance save in accordance with the provisions of any person to occupy Sub-Clause 5.26.6.
5.26.6 The Tenant may (i) permit the Demised Premises occupation of the whole of the Property or any part thereof by any company which is the holding company of the Tenant or a subsidiary of the Tenant or of such holding company (as the terms "subsidiary" and "holding company" are defined in S.736 of the Companies Act 1985) (each such company being referred to as a licensee or concessionaire (an “AlienationGroup Company”), it shall be reasonable for the Landlord to withhold consent to any ) provided that:-
5.26.6.1 such Alienation of the Demised Premises or part thereof where the Alienation would, in the reasonable opinion of the Landlord, have the effect or give rise to a termination of the Landlord’s Option to Tax. PROVIDED ALWAYS THAT it company shall not be reasonable for granted any legal interest in nor acquire any rights of security of tenure in the Landlord to withhold such consent in circumstances where prior to Property or any such proposed Alienation part thereof enforceable against the Tenant pays or procures the payment to the Landlord of:
(i) an amount equal to the amount of any VAT clawback or VAT payment obligations suffered by the Landlord as a result of such Alienation (hereinafter referred to in this Lease as a VAT Adjustment)Landlord; and
(ii) because the VAT Adjustment payable under sub-clause (i) above is or may be subject to tax 5.26.6.2 such occupation shall cease forthwith in the hands event of the Landlord, such further sum (the “Additional Payment”) as will leave the Landlord in at least the same position as if the VAT Adjustment had not been subject company ceasing to tax and for the purpose of calculating the Additional Payment it shall be assumed, if not otherwise the case, that the VAT Adjustment and the Additional Payment constitute the sole income of the Landlord and that the Landlord has no deductible expenses, losses or allowances for tax purposes for offset or reduction against such income or receipt and the Tenant shall keep the Landlord indemnified in respect of any such VAT Adjustment and Additional Payment. In respect of the above, the Landlord agrees to furnish so related to the Tenant a calculation of any sums due (the “Statement”) signed by the Landlord’s auditors or tax advisors and such Statement shall (save in the case of manifest error) be final and binding on the parties. All amounts shall be paid in advance to the Landlord prior to issuing consent to any proposed alienation.and
Appears in 1 contract
Sources: Lease Agreement
Alienation. 29.1 Not to assign, transfer, underlet, or part with the possession or occupation of the Demised Premises or any part thereof or suffer any person to occupy the Demised Premises or any part thereof as a licensee BUT SO THAT NOTWITHSTANDING licensee, franchisee or concessionaire during the foregoing Term except with the Landlord shall not unreasonably withhold or delay its previous consent to an assignment in writing of the entire of the Demised Premises or an underletting of the entire or part of the Demised Premises to an assignee/underlessee that constitutes an institutionally acceptable covenant and that is of good and sufficient financial standing (and in the case of an assignment, is otherwise to the reasonable satisfaction of the Landlord) sufficient to meet its obligations as aforesaid Lessor subject always to the following provisions or such of them as may be appropriate, appropriate that is to say:say:-
(a) 29.1.1 The Tenant Lessee shall prior to any such alienation as aforesaid assignment, transfer, underletting apply to the Landlord and give Lessor giving all reasonable information concerning the proposed transaction (including, but not by way of exception, trade and bank references and audited accounts) concerning the proposed assignee, under-lessee, licensee transferee or disponee underlessee as the Landlord Lessor may reasonably require;
(b) 29.1.2 The LandlordLessor’s consent (if given) to any such alienation shall be in writing and assignment, transfer or underletting, shall be given by licence or in such other manner as the Landlord Lessor may reasonably decide but shall decide acting reasonably be endorsed on the Deed of Assignment and the Tenant Lessee shall pay the reasonable vouched costs of the Landlord properly incurred in connection with the furnishing of such decisionconsent;
(c) 29.1.3 In the case of an assignment to a limited liability company which is not an institutionally acceptable covenant and of good and sufficient financial standing to meet its obligations as aforesaid, if it shall be deemed reasonable for reasonable, the Landlord to Lessor may require that a guarantor parent or guarantors associate company or two directors of financial standing satisfactory to the Landlord (acting reasonably) Lessor shall join in such consent as aforesaid as surety or sureties for such Company company in order jointly and severally to covenant with the Landlord Lessor as surety that such company will pay the rent and other payments provided for in this Lease and perform and observe the manner described in the guarantee said covenants and conditions contained in this Lease and indemnify and save harmless the Schedule 8 (mutatis mutandis);Lessor against all loss, damages, costs and expenses arising by reason of any default by such company.
(d) 29.2 In the case of an underlease, the Tenant agrees to use reasonable endeavours to ensure that the terms and conditions of any underlease remain confidential as between the Landlord and the Tenant and shall not be disclosed by the Tenant to any third party without the Landlord's prior written approval, except as required by Law;
(e) In the case of an underlease, the same shall be of either the entire of the Demised Premises or part of the Demised Premises PROVIDED THAT
(A) The Tenant may sub-let on a floor-by-floor basis subject to a maximum of four (4) sub-lettings at any one time;
(B) The Tenant may sub-let part only of a floor subject to a cap of two sub-tenants per floor and at a minimum of 50% of the floor area of a particular floor the Landlord acknowledging that the remaining un-let space may be less than 50% of a particular floor and subject further to the maximum of four (4) sub-lettings of the Demised Premises referenced in clause 4.20.1(f)(A) above and PROVIDED THAT the Tenant has obtained the necessary Fire Safety Certificate and Disability Access Certificate and any other consents or approvals for the sub-division of any floor; and
(C) The Tenant shall be entitled to sub-let the entire of the part of the Demised Premises comprising Nos. 4, 5 & 6 Sir ▇▇▇▇ ▇▇▇▇▇▇▇▇’▇ Quay which sub-letting shall not be considered a sub-letting for the purposes of the restrictions set out in clauses 4.20.1(f)(A) and 4.20.1(f)(B) above. and PROVIDED FURTHER that the Tenant has obtained the necessary Fire Safety Certificate and Disability Access Certificate and any other consents or approvals for the sub-division of any floor. In the case of such underlease the same shall be made without taking a fine or premium at the then full current open market rent and the under-lessee shall, underlessee shall if required by the LandlordLessor, enter into a direct covenant with the Landlord Lessor to perform and observe all the covenants (other than that for payment of the rents hereby reserved) and conditions herein contained and every such under-under lease shall also be subject to the following conditions, that is to say that it shall contain:-
(i) provisions for 29.2.1 An unqualified covenant on the review part of the rent under lessee not to under lease or part with or share the possession of the whole or part only of the Demised Premises thereby reserved (which demised without the Tenant hereby covenants Lessors consent such consent not to operate be unreasonable withheld.
29.2.2 A covenant on the part of the under lessee not to assign part only of the Demised Premises thereby demised and enforce) corresponding except not to assign the whole of the Demised Premises thereby demised without obtaining the previous consent in writing of the Lessor;
29.2.3 Covenants and conditions in the same terms as to terms and dates but in all other respects (mutatis mutandis) with the rent review provisions nearly as circumstances admit as those contained in this Lease;
(ii) a 29.2.4 A covenant by on the undertenant (which part of the Tenant hereby covenants to use reasonable endeavours to enforce) underlessee prohibiting the undertenant underlessee from doing or suffering any act or thing upon or in relation to the Demised Premises inconsistent with or in breach of, of the provisions of this Lease;
(iii) Any such sublease shall absolutely cease and determine if 29.2.5 A provision giving the Lessor rights of entry for whatever reason (including forfeiture) this Lease is terminated or expires (but the Landlord acknowledges that this shall be subject to any sub-tenant statutory rights which any sub-tenant may have entitling the sub-tenant to remain in occupation) (without prejudice to any claims the Landlord may have against the Tenant if such rights arise due to any breach of the Tenant's covenants in this Lease) and the Tenant shall procure that the sub-lessee vacates the premises underlet to it at the expiration or sooner determination of the Term;
(iv) a condition for re-entry on breach of any covenant of the covenants by the undertenantunder-Lessee;
(v) the 29.2.6 The same restrictions as to alienation, assignment, underletting, parting with or sharing the possession or occupation of the premises underlet; and
(vi) a confirmation of renunciation of statutory renewal rights;
(f) To enforce at the Tenant’s own expense the performance and observance by every such undertenant of the covenants, provisions and conditions of the under-lease and not, at any time, either expressly or by implication, to waive any breach of the same;
(g) Not to agree any reviewed rent with the undertenant or any rent payable on any renewal thereof without the prior written consent of the Landlord such consent not to be unreasonably withheld or delayed but provided always that nothing herein shall prevent the Tenant from complying with any independent determination process provided for in the rent review clauses of the sub-lease;
(h) Not to produce evidence of, refer to or seek to rely upon during any rent review pursuant to Schedule 4 the terms, conditions and/or existence of any under-letting(s) of part or all of the Demised Premises created by the Tenant including but not limited to the rent payable under any such under-letting(s);
(i) Not to vary the terms of any permitted under-lease without the prior written consent of the Landlord not to be unreasonably withheld or delayed.
(j) For the avoidance of doubt, in the case of an assignment, underletting, parting with possession or occupation of the Demised Premises or any part thereof or sufferance of any person underlet as are contained in this Lease. AND the Lessee hereby covenants to occupy the Demised Premises or any part thereof as a licensee or concessionaire (an “Alienation”), it shall be reasonable for the Landlord to withhold consent to any operate and enforce all such Alienation of the Demised Premises or part thereof where the Alienation would, in the reasonable opinion of the Landlord, have the effect or give rise to a termination of the Landlord’s Option to Tax. PROVIDED ALWAYS THAT it shall not be reasonable for the Landlord to withhold such consent in circumstances where prior to any such proposed Alienation the Tenant pays or procures the payment to the Landlord of:
(i) an amount equal to the amount of any VAT clawback or VAT payment obligations suffered covenants and conditions enforceable by the Landlord Lessee as a result of Lessor under such Alienation (hereinafter referred an underlease.
29.3 In relation to in this Lease as a VAT Adjustment); and
(ii) because the VAT Adjustment payable under sub-clause (i) above is or may be subject to tax in the hands of the Landlord, such further sum (the “Additional Payment”) as will leave the Landlord in at least the same position as if the VAT Adjustment had not been subject to tax and for the purpose of calculating the Additional Payment it shall be assumed, if not otherwise the case, that the VAT Adjustment and the Additional Payment constitute the sole income of the Landlord and that the Landlord has no deductible expenses, losses or allowances for tax purposes for offset or reduction against such income or receipt and the Tenant shall keep the Landlord indemnified in respect of any such VAT Adjustment and Additional Payment. In respect of the aboveevery underlease, the Landlord agrees to furnish to the Tenant a calculation of any sums due (the “Statement”) signed by the Landlord’s auditors or tax advisors and such Statement shall (save in the case of manifest error) be final and binding on the parties. All amounts shall be paid in advance to the Landlord prior to issuing consent to any proposed alienation.Lessee covenants:-
Appears in 1 contract
Alienation. Not 4.15.1 If the Tenant at any time proposes to assign, transfer, underlet, assign or part underlet the whole of the Premises the Tenant shall first by an irrevocable unconditional written notice (“the Tenant’s Notice”) served upon the Landlord offer to surrender or assign this lease to the Landlord upon such financial terms and conditions as the Tenant may desire
4.15.2 During the period of fifteen working days following service of the Tenant’s Notice the Landlord may serve on the Tenant a notice in relation to the surrender created by this clause 4.15 in a form complying with the possession or occupation requirements of Schedule 3 to the Demised Premises or any part thereof or suffer any person to occupy the Demised Premises or any part thereof as Order (a licensee BUT SO THAT NOTWITHSTANDING the foregoing “Warning Notice”).
4.15.3 If the Landlord shall serve a Warning Notice the Tenant shall make a duly executed declaration or statutory declaration in a form complying with the requirements of Schedule 4 of the Order (a “Declaration”) as soon as reasonably practicable and the offer contained in the Tenant’s Notice shall remain irrevocable and open for acceptance by the Landlord until the service on the Tenant of the Counter-Notice pursuant to clause 4.15.4.
4.15.4 Within fifteen working days of receipt of the Tenant’s Notice or, if later, the date of receipt of the Declaration from the Tenant (in respect of which time shall be of the essence) the Landlord may issue a counter-notice (“the Counter-Notice”) upon the Tenant stating the Landlord wishes to accept such surrender or assignment on the terms specified in the Tenant’s Notice
4.15.5 If the Landlord serves a Counter-Notice on the Tenant then the Tenant shall surrender or assign (at the Landlord’s option) this lease to the Landlord and the Landlord shall accept an obligation to take a surrender or assignment of this lease (as the case may be) upon the terms specified in the Tenant’s Notice within 15 working days of receipt of the Counter-Notice by the Tenant either with vacant possession or subject only to a permitted underletting and the Tenant’s liability hereunder shall cease in respect of any matters arising following the date of such assignment or surrender and the Tenant shall be released from all its obligations hereunder but without prejudice to any antecedent breaches of covenant save in respect of reinstatement in relation to which the Tenant shall be required to leave the Premises in a clean and tidy condition (with all furniture removed) but not reinstated to the Reinstatement Specification. Upon completion of such surrender or assignment (as the case may be) the Landlord shall (by deed) execute a formal release of the Tenant’s obligations hereunder in such form as the Tenant shall reasonably require
(A) If the Landlord does not take a surrender or assignment of this lease within the period specified in sub-clause 4.15.4 above for whatever reason then the Tenant’s obligation to surrender or assign to the Landlord under sub-clause 4.15.4 shall cease and the Tenant must (if it still wishes to assign or underlet this lease) complete its assignment or underletting on terms no worse than the financial terms and conditions stipulated in the Tenant’s Notice within 6 months from the date of the Tenant’s Notice extended by such period as results from the Landlord unreasonably withhold withholding or delay delaying the issue of its consent and if the Tenant shall fail to an assignment complete within such period if it still wishes to assign or underlet the whole of the entire Premises it must reinstate the procedure set out in this clause 4.15
(B) If the Landlord does not serve a Counter-Notice upon the Tenant within the fifteen working day period specified in sub-clause 4.15.4 above then the Tenant must (if it still wishes to assign or underlet this lease) complete its assignment or underletting on financial terms no worse than the terms and conditions stipulated in the Tenant’s Notice within 6 months from the date of the Demised Tenant’s Notice extended by such period as results from the Landlord unreasonably withholding or delaying the issue of its consent and if the Tenant shall fail to complete within such period if it still wishes to assign or underlet the whole of the Premises it must reinstate the procedure set out in this clause 4.15
(A) Subject to the foregoing provisions of this sub-clause 4.15 not to assign mortgage charge or underlet or in any other manner part with possession of any part (being less than the whole) of the Premises or an underletting agree to do so except that the Tenant may underlet the whole of (but not more or less than) any Permitted Part or Permitted Parts or share occupation in accordance with sub-clauses 4.15.9 to 4.15.13
(B) Subject to the foregoing provisions of this sub-clause 4.15 not to assign underlet or otherwise part with possession of the entire or part whole of the Demised Premises or agree to do so except that the Tenant may assign or underlet the whole of the Premises in accordance with sub-clauses 4.15.8 to 4.15.12
(C) In the event that the Tenant proposes to assign or underlet the whole of the premises demised under the Level 25 Lease and Level 26 Lease or solely the Level 25 Lease at the same time as this lease and has served the equivalent Tenant's Notice on the Landlord pursuant to clause 4.15.1 of the Level 25 Lease and the Level 26 Lease in respect of each of the Level 25 Lease and the Level 26 Lease or pursuant to clause 4.15.1 of the Level 25 Lease (as appropriate), and the Landlord has served a Counter-Notice for this lease, the Landlord must also serve such equivalent counter-notice on the Tenant as provided for in the Level 25 Lease and/or the Level 26 Lease (as appropriate).
(A) Not to assign the whole of the Premises without first obtaining the Landlord’s consent issued within three months before completion of the assignment which consent shall not be unreasonably withheld or delayed but which may be granted subject to any one or more of the conditions referred to in clause 4.15.8 (B) and which may be withheld if the circumstance referred to in clause 4.15.8 (C) exists. For the avoidance of doubt, the provisions of this clause 4.15.8 shall not apply in the event that the Landlord has served a Counter-Notice and the Tenant assigns this Lease to the Landlord in accordance with clause 4.15.5 hereof.
(B) The conditions referred to in clause 4.15.8 (A) above (which are specified for the purposes of section 19(1A) Landlord and Tenant Act 1927) are:
(1) that the Tenant shall enter into an assignee/underlessee authorised guarantee agreement (as defined in section 16 Landlord and Tenant (Covenants) Act 1995) with the Landlord in a form which the Landlord reasonably requires
(2) that constitutes an institutionally acceptable covenant any guarantor of the Tenant’s obligations under this lease shall have guaranteed to the Landlord that the Tenant will comply with the terms and that is conditions of good and sufficient financial standing the authorised guarantee agreement referred to in sub-clause clause 4.15.8 (B)(1) on terms and in a form which the case of an assignment, is otherwise to Landlord reasonably requires
(3) that if so reasonably required by the reasonable satisfaction of Landlord the Landlord) sufficient to meet its obligations as aforesaid subject always to the following provisions or such of them as may be appropriate, that is to say:proposed assignee shall have either procured
(a) The Tenant shall prior to any such alienation as aforesaid apply to covenants with the Landlord and give all reasonable information concerning the proposed transaction and concerning the proposed assignee, under-lessee, licensee or disponee as the Landlord may reasonably require;
(b) The Landlord’s consent (if given) to any such alienation shall be in writing and shall be given in such manner as the Landlord shall decide acting reasonably and the Tenant shall pay the reasonable vouched costs of the Landlord properly incurred in connection with the furnishing of such decision;
(c) In the case of an assignment to a limited liability company which is not an institutionally acceptable covenant and of good and sufficient financial standing to meet its obligations as aforesaid, it shall be deemed reasonable for the Landlord to require that by a guarantor or guarantors of financial standing satisfactory (not being the Tenant or Tenant’s Guarantor) reasonably acceptable to the Landlord, in a form acceptable to the Landlord (acting reasonably); or
(b) shall join in such consent as aforesaid as surety or sureties for such Company in order jointly and severally to covenant a deposit with the Landlord in the manner described in the guarantee contained in the Schedule 8 (mutatis mutandis);
(d) In the case of an underlease, the Tenant agrees to use reasonable endeavours to ensure that the terms and conditions of any underlease remain confidential as between the Landlord and the Tenant and shall such sum not be disclosed by the Tenant to any third party without the Landlord's prior written approval, except as required by Law;
(e) In the case of an underlease, the same shall be of either the entire of the Demised Premises or part of the Demised Premises PROVIDED THAT
(A) The Tenant may sub-let on a floor-by-floor basis subject to a maximum of four (4) sub-lettings at any one time;
(B) The Tenant may sub-let part only of a floor subject to a cap of two sub-tenants per floor and at a minimum of 50% of the floor area of a particular floor the Landlord acknowledging that the remaining un-let space may be less than 50% of a particular floor the then current annual rent first reserved by this lease together with any VAT thereon as fourthly reserved by this lease (and subject further to including provisions for increase of the maximum sum deposited following any future review of four the rent first reserved by this lease) on such terms as the Landlord may reasonably require as additional security for the discharge of the Tenant’s obligations under this lease
(4) sub-lettings if the proposed assignee is a Group Company the Tenant shall have procured either:
(a) if the Tenant’s obligations under this lease are guaranteed by another Group Company that such Group Company covenants with the Landlord on terms reasonably acceptable to (but no more onerous than the existing guarantee) the Landlord (which shall include a covenant to accept a new lease in the same form as this lease mutatis mutandis if any of the Demised Premises referenced circumstances referred to in clause 4.20.1(f)(A) above and PROVIDED THAT 7.1 arise in respect of the Tenant has obtained or any assignee); or
(b) if there is no guarantor of the necessary Fire Safety Certificate Tenant’s obligations under this lease and Disability Access Certificate if the assignee is not at the date of the application for consent to the proposed assignment in the reasonable opinion of the Landlord of financial standing equivalent to or greater than the Tenant at the date of this lease that the proposed assignee procures covenants by a Group Company which is not the Tenant or the proposed assignee and which is in the reasonable opinion of the Landlord of financial standing equivalent to or greater than the Tenant on terms reasonably acceptable to the Landlord (which shall include a covenant to accept a new lease in the same form as this lease mutatis mutandis if any other consents of the circumstances referred to in clause 7.1 arise in respect of the Tenant or approvals for the sub-division of any floor; andassignee)
(C) The Tenant shall be entitled circumstance referred to sub-let the entire of the part of the Demised Premises comprising Nos. 4, 5 & 6 Sir ▇▇▇▇ ▇▇▇▇▇▇▇▇’▇ Quay in clause 4.15.8 (A) above (which sub-letting shall not be considered a sub-letting is specified for the purposes of the restrictions set out in clauses 4.20.1(f)(Asection 19(1A) Landlord and 4.20.1(f)(BTenant Act 1927) above. is where any sums due and PROVIDED FURTHER that properly demanded from the Tenant has obtained to the necessary Fire Safety Certificate Landlord under this lease (not being the subject of a bona fide dispute) remain unpaid at the date of the application for consent to the proposed assignment
4.15.9 Not to underlet the whole of the Premises or any Permitted Part (each being referred to in this paragraph as the premises) except:
(A) to a person who before the underletting shall have covenanted with the Landlord to observe and Disability Access Certificate and any other consents or approvals for perform the Tenant’s obligations under this lease during the sub-division term to the extent they relate to the premises demised by the underletting (other than the payment of rents) and shall have covenanted not to assign or underlet the whole of the premises without the Landlord’s consent (which shall not be unreasonably withheld or delayed) and shall have given an unqualified covenant not to assign or underlet part of the premises or otherwise part with possession or share the occupation of the premises or any floor. In the case part of such underlease them other than on the same shall be made basis as sub-clause (4.15.10(C) below (applying mutatis mutandis to the sub-tenant)
(B) by reserving as a yearly rent without taking payment of a fine or premium at (in addition to the service and insurance and other rents payable under this lease except the rent first hereby reserved or (in the case of underletting of a Permitted Part) a pro rata proportion of them) an amount not less than:
(1) (in the case of an underletting of the Premises) the then full current open market rent and of the underPremises
(2) (in the case of an underletting of a Permitted Part) the then open market rent of the Permitted Part (notwithstanding that this may be less than a pro-lessee shall, if required rata proportion of the then open market rent of the Premises as a whole)
(C) by a form of underlease:
(1) by which the principal rent reserved by the Landlord, enter into a direct covenant underlease is reviewed upwards only at each of those Review Dates which will occur during the sub term in accordance with the Landlord to perform and observe all the covenants (other than that for payment of the rents hereby reserved) and conditions herein contained and every such under-lease shall also be subject to the following conditions, that is to say that it shall contain:-
(i) provisions for the review of the rent thereby reserved (which the Tenant hereby covenants to operate and enforce) corresponding except as to terms and dates but in all other respects same principles (mutatis mutandis) with as apply to the rent review provisions contained in first reserved by this Lease;lease
(ii2) a requiring the underlessee to observe and perform all the covenants and other provisions binding on the Tenant under this lease (other than the covenant by the undertenant (which Tenant to pay the Tenant hereby covenants to use reasonable endeavours to enforceseveral rents reserved hereunder) prohibiting the undertenant from doing or suffering any act or thing upon or in relation to the Demised Premises in breach of, extent they relate to the provisions of this Lease;premises and containing:
(iii) Any such sublease shall absolutely cease and determine if for whatever reason (including forfeiture) this Lease is terminated or expires (but the Landlord acknowledges that this shall be subject to any sub-tenant statutory rights which any sub-tenant may have entitling the sub-tenant to remain in occupation) (without prejudice to any claims the Landlord may have against the Tenant if such rights arise due to any breach of the Tenant's covenants in this Lease) and the Tenant shall procure that the sub-lessee vacates the premises underlet to it at the expiration or sooner determination of the Term;
(iva) a condition for re-entry by the underlessor on breach of any covenant by the undertenant;underlessee
(vb) a qualified covenant not to assign or underlet the same restrictions as whole of the premises and an absolute covenant not to alienation, assignment, underletting, parting assign or underlet part of the premises or to otherwise part with or sharing the possession or share the occupation of the premises underlet; andor any part of them save by way of group company sharing
(vic) a confirmation whereby the provisions of renunciation of statutory renewal rights;
(f) To enforce at the Tenant’s own expense the performance and observance by every such undertenant of the covenants, provisions and conditions of the under-lease and not, at any time, either expressly or by implication, sections 24 to waive any breach of the same;
(g) Not to agree any reviewed rent with the undertenant or any rent payable on any renewal thereof without the prior written consent 28 inclusive of the Landlord such consent not to be unreasonably withheld or delayed but provided always that nothing herein shall prevent the Tenant from complying with any independent determination process provided for and ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ have been excluded in the rent review clauses of the sub-lease;
(h) Not to produce evidence of, refer to or seek to rely upon during any rent review pursuant to Schedule 4 the terms, conditions and/or existence of any under-letting(s) of part or all of the Demised Premises created by the Tenant including but not limited relation to the rent payable under any such under-letting(s);
(i) Not to vary the terms of any permitted under-lease without the prior written consent underlease in accordance with section 38A of the Landlord and ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ before the underlease is granted or if earlier the underlessee becomes contractually bound to take it
(D) with the Landlord’s consent issued within three months before completion of the underletting which consent (subject to compliance with the foregoing conditions precedent) shall not to be unreasonably withheld or delayed.
4.15.10 In relation to an underlease of a Permitted Part:
(jA) For the avoidance of doubt, not to include in the case of an assignment, underletting, parting with possession or occupation of sub-demise the Demised Premises whole or any part thereof or sufferance of any person to occupy the Demised Premises or any part thereof as a licensee or concessionaire (an “Alienation”), it shall be reasonable for the Landlord to withhold consent to any such Alienation of the Demised Premises entrance to or part thereof where the Alienation would, in the reasonable opinion reception area of the Landlord, have the effect or give rise to a termination of the Landlord’s Option to Tax. PROVIDED ALWAYS THAT it shall not be reasonable for the Landlord to withhold such consent in circumstances where prior to any such proposed Alienation the Tenant pays or procures the payment to the Landlord of:Premises
(iB) an amount equal to except from the amount of any VAT clawback or VAT payment obligations suffered by underlease all necessary circulation areas and plant and equipment which will serve the Landlord Premises in common (C) not as a result of such Alienation the grant to create or permit the creation of more than two separate occupations affecting the whole of each floor of the Premises (hereinafter referred occupations under this lease counting as one occupation save where the occupation under this lease is only of corridor areas and ducts common to in this Lease as a VAT Adjustment); and
(ii) because the VAT Adjustment payable under sub-clause (i) above is or may be subject to tax in the hands of the Landlord, such further sum (the “Additional Payment”) as will leave the Landlord in at least the same position as if the VAT Adjustment had not been subject to tax and for the purpose of calculating the Additional Payment it shall be assumed, if not otherwise the case, that the VAT Adjustment and the Additional Payment constitute the sole income of the Landlord and that the Landlord has no deductible expenses, losses or allowances for tax purposes for offset or reduction against such income or receipt and the Tenant shall keep the Landlord indemnified in respect of any such VAT Adjustment and Additional Payment. In respect of the above, the Landlord agrees to furnish to the Tenant a calculation of any sums due (the “Statement”) signed by the Landlord’s auditors or tax advisors and such Statement shall (save in the case of manifest error) be final and binding on the parties. All amounts shall be paid in advance to the Landlord prior to issuing consent to any proposed alienation.demises)
Appears in 1 contract
Alienation. (a) Not to assign, transfer, underletsub-let, mortgage, charge (including lodgement of this Lease with anyone as security) or share or part with the possession or occupation of the Demised Premises or any part thereof of it or suffer any person to occupy the Demised Premises or any part thereof of it as a licensee BUT SO THAT NOTWITHSTANDING licensee, franchisee or concessionaire.
(b) Notwithstanding the foregoing provisions of clause 4.14(a), the Landlord shall not unreasonably withhold or delay its consent to an assignment the mortgaging or charging (including lodging this Lease with anyone as security) of the entire of the Demised Premises with a recognised financial institution or to an underletting assignment of the entire or part to a sub-letting of the entire of the Demised Premises to an assignee/underlessee that constitutes an institutionally assignee or sub-tenant reasonably acceptable covenant to the Landlord (and that is being of good and sufficient financial standing (and in the case of an assignment, is otherwise reasonably satisfactory to the reasonable satisfaction of the Landlord) sufficient to meet its obligations as aforesaid and otherwise subject always to the following provisions or such of them as may be appropriate, that is to say:.
(ai) The Tenant shall prior to any such alienation as aforesaid apply to the Landlord in writing and give all reasonable information as the Landlord may require concerning the proposed transaction and concerning the proposed assignee, undersub-lessee, licensee tenant or disponee as the Landlord may reasonably require;disponee.
(bii) The Landlord’s consent (if given) to any such alienation shall be in writing and shall be given in such manner as the Landlord shall decide acting reasonably and the Tenant shall pay the proper and reasonable vouched costs of the Landlord properly incurred in connection with the consideration of each such application and (where applicable) the furnishing of such decision;consent.
(ciii) Without prejudice to any other grounds on which the Landlord may be entitled to withhold its consent to any such alienation, it shall be deemed a reasonable ground for the withholding of Landlord’s consent that:
(A) the Tenant is in breach of any of the Tenant’s covenants and conditions contained in this Lease; or
(B) the proposed assignee, sub-tenant or disponee intends to alter the Permitted Use or any part thereof in a manner which would be prohibited under the provisions of clause 4.12; or
(C) the proposed assignee, sub-tenant or disponee has or may have immunity from legal proceedings in relation to any breach of any covenant or condition in this Lease or any sublease; or
(D) such alienation causes a VAT cost for the Landlord, either as a VAT clawback or as a VAT liability; or
(E) the proposed assignee, sub-tenant or disponee does not intend to occupy the Demised Premises.
(iv) In the case of an assignment to a limited liability company which is not an institutionally acceptable covenant and of good and sufficient financial standing to meet its obligations as aforesaidcompany, if it shall be deemed reasonable for reasonable, the Landlord to may require that a guarantor surety (or guarantors sureties) of financial standing satisfactory to the Landlord (acting reasonably) shall join in such the relevant consent as aforesaid as surety or sureties for such Company a company in order jointly and severally to covenant with the Landlord in the manner described in the guarantee contained in the Schedule 8 5 (mutatis mutandis);) or in such other form as the Landlord may from time to time require.
(dv) In the case of an underlease, the Tenant agrees to use reasonable endeavours to ensure that the terms and conditions of any underlease remain confidential as between the Landlord and the Tenant and shall not be disclosed by the Tenant to any third party without the Landlord's prior written approval, except as required by Law;
(e) In the case of an underleasea sub-lease, the same shall be of either the entire of the Demised Premises or part of the Demised Premises PROVIDED THAT
(A) The Tenant may sub-let on a floor-by-floor basis subject to a maximum of four (4) sub-lettings at any one time;
(B) The Tenant may sub-let part only of a floor subject to a cap of two sub-tenants per floor and at a minimum of 50% of the floor area of a particular floor the Landlord acknowledging that the remaining un-let space may be less than 50% of a particular floor and subject further to the maximum of four (4) sub-lettings of the Demised Premises referenced in clause 4.20.1(f)(A) above and PROVIDED THAT the Tenant has obtained the necessary Fire Safety Certificate and Disability Access Certificate and any other consents or approvals for the sub-division of any floor; and
(C) The Tenant shall be entitled to sub-let the entire of the part of the Demised Premises comprising Nos. 4, 5 & 6 Sir ▇▇▇▇ ▇▇▇▇▇▇▇▇’▇ Quay which sub-letting shall not be considered a sub-letting for the purposes of the restrictions set out in clauses 4.20.1(f)(A) and 4.20.1(f)(B) above. and PROVIDED FURTHER that the Tenant has obtained the necessary Fire Safety Certificate and Disability Access Certificate and any other consents or approvals for the sub-division of any floor. In the case of such underlease the same shall be made without taking a fine or premium and reserving the then current market rent or the rent payable hereunder at the then full current open market rent time of the granting of such sub-lease (whichever is the higher) and be in a form approved by the underLandlord (such approval not to be unreasonably withheld or delayed). The sub-lessee shall, tenant shall if required by the Landlord, Landlord enter into a direct covenant with the Landlord to perform and observe all the covenants (other than that for payment of the rents hereby reserved) and conditions herein contained and every in this Lease. Every such undersub-lease shall also be subject to the following conditions, that is to say that it shall contain:-contain:
(iA) provisions for the review of the rent thereby reserved (which the Tenant hereby covenants to operate and enforce) corresponding except both as to terms and dates but and in all other respects (mutatis mutandis) with the rent review provisions contained in this Lease, unless the term of the sub-lease does not extend beyond the next Review Date;
(iiB) a covenant condition or proviso under which the rent from time to time payable under such sub-lease shall not be less than the rent from time to time payable under this Lease;
(C) a covenant by the undertenant sub-tenant (which the Tenant hereby covenants to use reasonable endeavours to enforce) prohibiting the undertenant sub-tenant from doing or suffering any act or thing upon or in relation to the Demised Premises inconsistent with or in breach of, of the provisions of this Lease;
(iiiD) Any such sublease shall absolutely cease and determine if for whatever reason (including forfeiture) this Lease is terminated or expires (but a provision giving the Landlord acknowledges that this shall be subject to any sub-tenant statutory rights which any sub-tenant may have entitling the sub-tenant to remain in occupation) (without prejudice to any claims the Landlord may have against the Tenant if such rights arise due to any breach right of the Tenant's covenants in this Lease) and the Tenant shall procure that the sub-lessee vacates the premises underlet to it at the expiration or sooner determination of the Term;
(iv) a condition for re-entry on breach of any covenant by the undertenant;sub-tenant; and
(vE) the same restrictions as to alienation, assignment, underlettingsub-letting, mortgaging, charging (including lodging the sub-lease with anyone as security) and parting with or sharing the possession or occupation of the premises underlet; andsub-let as this Lease. PROVIDED THAT the Tenant shall procure that no sub-tenant shall acquire security of tenure rights pursuant to the Landlord and Tenant (Amendment) Act, 1980 as amended by the Landlord and Tenant (Amendment) Act, 1994 and the Civil Law (Miscellaneous Provisions) ▇▇▇ ▇▇▇▇ and each sub-tenant shall execute a Deed of Renunciation of such rights prior to executing any such sub-lease. The Tenant shall indemnify the Landlord against all actions, proceedings, claims, demands, losses, costs, expenses, damages and liability arising in any way directly or indirectly as a result of any such sub-tenant acquiring such rights under the above mentioned legislation.
(vi) a confirmation of renunciation of statutory renewal rights;
(f) To enforce at the Tenant’s own expense the performance and observance by every such undertenant sub-tenant of the covenants, covenants conditions and provisions and conditions of the undersub-lease and not, not at any time, time either expressly or by implication, implication to waive any breach of the same;.
(gvii) Not to agree any reviewed rent with the undertenant or sub-tenant nor any rent payable on any renewal thereof without the prior written consent of the Landlord such consent not to be unreasonably withheld or delayed but provided always that nothing herein shall prevent the Tenant from complying with any independent determination process provided for in the rent review clauses of the a sub-lease;
(h) Not to produce evidence of, refer to or seek to rely upon during any rent review pursuant to Schedule 4 the terms, conditions and/or existence of any under-letting(s) of part or all of the Demised Premises created by the Tenant including but not limited to the rent payable under any such under-letting(s);
(i) Not to vary the terms of any permitted under-lease without the prior written consent of the Landlord (such consent not to be unreasonably withheld or delayed).
(viii) Not to vary the terms or consent to alienation of or accept any surrender of any permitted sub-lease without the prior written consent of the Landlord, such consent not to be unreasonably withheld or delayed.
(jix) For the avoidance Within 14 (fourteen) days of doubtevery alienation, in the case of an assignment, underlettingtransfer, parting with possession assent, sub-lease, assignment of sub-lease, mortgage, charge (including lodgement of the relevant document or occupation instrument as security) or any other disposition whether mediate or immediate of or relating to the Demised Premises or any part thereof or sufferance of any person it, to occupy the Demised Premises or any part thereof as a licensee or concessionaire (an “Alienation”), it shall be reasonable for deliver to the Landlord to withhold consent to any such Alienation or its solicitors a solicitor’s certified copy of the Demised Premises deed instrument or part thereof where the Alienation would, in the reasonable opinion of the Landlord, have the effect other document evidencing or give rise to a termination of effecting such disposition duly stamped and shall pay the Landlord’s Option to Tax. PROVIDED ALWAYS THAT it shall not be proper and reasonable costs and expenses in connection with such alienation including, for the Landlord avoidance of doubt, the Landlord’s proper and reasonable professional costs and expenses.
(x) The Tenant covenants to withhold such consent in circumstances where prior to any such proposed Alienation the Tenant pays or procures the payment to indemnify and keep indemnified the Landlord of:
in respect of any and all tax liabilities (i) an amount equal to the amount of including any VAT clawback or VAT payment obligations suffered liability) which the Landlord may suffer in the event the Tenant breaches the conditions of clause 4.14(a) or 4.14(b). All sums payable by the Tenant to the Landlord under this clause 4.14(b)(x) shall be paid free and clear of all deductions or withholdings save only as a result may be required by law. If any such deductions or withholdings are required by law, the Tenant shall pay to the Landlord such sum as will, after such deduction or withholding has been made, leave the Landlord with the same amount as it would have been entitled to receive, in the absence of such Alienation (hereinafter referred requirement to in make a deduction or withholding. If any sum payable by the Tenant to the Landlord under this Lease as a VAT Adjustment); and
(iiclause 4.14(b)(x) because the VAT Adjustment payable under sub-clause (i) above is or may shall otherwise be subject to tax in the hands of the Landlord, such further sum (the “Additional Payment”) as will leave the Landlord in at least the same position obligation to make an increased payment shall apply in relation to such tax as if it were a deduction or withholding required by law, as referred to above.
(xi) For the VAT Adjustment had avoidance of doubt, the Tenant shall pay the Landlord’s proper and reasonable costs and expenses (including the Landlord’s proper and reasonable professional costs and expenses) in connection with the Landlord’s consideration of any application made under this clause 4.14(b) irrespective of whether or not the application is ultimately refused or withdrawn save where it is determined by a court of law that Landlord’s consent has been subject to tax and unreasonably withheld. PROVIDED HOWEVER THAT for as long as the purpose of calculating Tenant is Hubspot Ireland Limited the Additional Payment it shall be assumed, if not otherwise the case, that the VAT Adjustment and the Additional Payment constitute the sole income consent of the Landlord and that shall not be required for the sharing of possession of the Demised Premises by the Tenant with any Group Company subject to (a) the Tenant notifying the Landlord has no deductible expenses, losses or allowances for tax purposes for offset or reduction against such income or receipt and the Tenant shall keep the Landlord indemnified in respect of any such VAT Adjustment and Additional Payment. In respect of the above, identity of the Landlord agrees to furnish relevant Group Company not less than five working days prior to the Tenant relevant Group Company entering occupation and (b) the relevant Group Company shall execute a calculation Deed of any sums due (the “Statement”) signed by the Landlord’s auditors or tax advisors and such Statement shall (save in the case Renunciation of manifest error) be final and binding on the parties. All amounts shall be paid in advance its security of tenure rights pursuant to the Landlord prior to issuing consent to any proposed alienationand Tenant (Amendment) Act, 1980 as amended by the Landlord and Tenant (Amendment) Act, 1994 and the Civil Law (Miscellaneous Provisions) ▇▇▇ ▇▇▇▇.
Appears in 1 contract
Sources: Lease Agreement (Hubspot Inc)
Alienation. Not 7.1 Until a Deed of Conveyance is executed in favour of the Purchaser, the Purchaser shall not be entitled to assign, transfer, underlet, mortgage or part encumber or assign or alienate or dispose of or deal in any manner whatsoever with the possession said Flat Unit or occupation any portion thereof and/or any right therein and/or under this Memorandum (“Alienation”) unless all the following conditions are complied with:-
a) A minimum period of 1½ (one and half) years has passed from the date of this Memorandum,
b) There is no default whatsoever by the Purchaser in compliance with and/or performance of any of the Demised Premises Purchaser’s covenants, undertakings and obligations under this Memorandum or any part thereof otherwise.
c) The Purchaser has made full payment of the Agreed Consideration, the Additional Payments and Deposits due or suffer any person payable till the time of such Alienation including interest and penalties, if any.
d) The Purchaser or the assignee, nominee, etc. has made payment to occupy the Demised Premises Seller transfer charges calculated at the rate of Rs.300/- per Square Feet of super built-up area (hereinafter referred to as “the Transfer Charges”). The Purchaser shall also pay the applicable Service Tax, if any.
e) Prior consent in writing is obtained from the Seller regarding the proposed Alienation.
f) Provided however that no Transfer Fee shall be payable in case of transfer to the mother or any part thereof father or spouse or child of the Purchaser. It is further clarified that inclusion of a new joint Purchaser or change of a joint Purchaser shall be treated as a licensee BUT SO THAT NOTWITHSTANDING the foregoing the Landlord shall not unreasonably withhold transfer unless such joint Purchaser is a mother or delay its consent to an assignment father or spouse or child of the entire original Purchaser.
7.2 After the execution and registration of the Demised Premises or an underletting Deed of Conveyance, the entire or part of Purchaser may alienate the Demised Premises to an assignee/underlessee that constitutes an institutionally acceptable covenant and that is of good and sufficient financial standing (and in the case of an assignment, is otherwise to the reasonable satisfaction of the Landlord) sufficient to meet its obligations as aforesaid said Flat Unit subject always to the following provisions or such of them as may be appropriate, that is to sayconditions:
(a) The Tenant shall prior to any such alienation as aforesaid apply to the Landlord and give all reasonable information concerning the proposed transaction and concerning the proposed assignee, under-lessee, licensee or disponee as the Landlord may reasonably require;
(b) The Landlord’s consent (if given) to any such alienation said Flat Unit shall be in writing and shall be given in such manner as the Landlord shall decide acting reasonably and the Tenant shall pay the reasonable vouched costs of the Landlord properly incurred in connection with the furnishing of such decision;
(c) In the case of an assignment to a limited liability company which is not an institutionally acceptable covenant and of good and sufficient financial standing to meet its obligations as aforesaid, it shall be deemed reasonable for the Landlord to require that a guarantor or guarantors of financial standing satisfactory to the Landlord (acting reasonably) shall join in such consent as aforesaid as surety or sureties for such Company in order jointly and severally to covenant with the Landlord in the manner described in the guarantee contained in the Schedule 8 (mutatis mutandis);
(d) In the case of an underlease, the Tenant agrees to use reasonable endeavours to ensure that the terms and conditions of any underlease remain confidential as between the Landlord and the Tenant one lot and shall not be disclosed by the Tenant to any third party without the Landlord's prior written approval, except as required by Law;
(e) partitioned or dismembered in parts. In the case of an underleasesale in favour of more than one buyer, the same shall be of either the entire done in their favour jointly and in undivided shares.
b) The transfer of the Demised Premises or part of said Flat Unit by the Demised Premises PROVIDED THAT
(A) The Tenant may sub-let on a floor-by-floor basis subject to a maximum of four (4) sub-lettings at any one time;
(B) The Tenant may sub-let part only of a floor subject to a cap of two sub-tenants per floor and at a minimum of 50% of the floor area of a particular floor the Landlord acknowledging that the remaining un-let space may be less than 50% of a particular floor and subject further to the maximum of four (4) sub-lettings of the Demised Premises referenced in clause 4.20.1(f)(A) above and PROVIDED THAT the Tenant has obtained the necessary Fire Safety Certificate and Disability Access Certificate and any other consents or approvals for the sub-division of any floor; and
(C) The Tenant shall be entitled to sub-let the entire of the part of the Demised Premises comprising Nos. 4, 5 & 6 Sir ▇▇▇▇ ▇▇▇▇▇▇▇▇’▇ Quay which sub-letting Purchaser shall not be considered a sub-letting for in any manner inconsistent with this Memorandum and/or the purposes Deed of Conveyance and the restrictions set out in clauses 4.20.1(f)(Acovenants contained herein and/or the Deed of Conveyance shall run with the land and/or transfer. The person(s) and 4.20.1(f)(B) above. and PROVIDED FURTHER that to whom the Tenant has obtained Purchaser may transfer/alienate the necessary Fire Safety Certificate and Disability Access Certificate and any other consents or approvals for the sub-division of any floor. In the case of such underlease said Flat Unit shall be bound by the same shall be made without taking a fine or premium at terms, conditions, agreements, covenants, stipulations, obligations, undertakings and obligations as are applicable to the then Purchaser by law and/or by virtue of this Memorandum and/or the Deed of Conveyance.
c) All the dues including outstanding amounts, interest, Maintenance Charges, electricity charges, municipal and other taxes etc. relating to the said Flat Unit payable to the Maintenance Agency, the Corporation and other concerned persons/entities are paid by the Purchaser in full current open market rent and prior to the under-lessee shallproposed transfer/alienation. Such dues, if required by the Landlordany, enter into a direct covenant shall in any event, run with the Landlord to perform and observe all the covenants (other than that for payment of the rents hereby reserved) and conditions herein contained and every such under-lease shall also be subject to the following conditions, that is to say that it shall contain:-
(i) provisions for the review of the rent thereby reserved (which the Tenant hereby covenants to operate and enforce) corresponding except as to terms and dates but in all other respects (mutatis mutandis) with the rent review provisions contained in this Lease;
(ii) a covenant by the undertenant (which the Tenant hereby covenants to use reasonable endeavours to enforce) prohibiting the undertenant from doing or suffering any act or thing upon or in relation to the Demised Premises in breach of, the provisions of this Lease;
(iii) Any such sublease shall absolutely cease and determine if for whatever reason (including forfeiture) this Lease is terminated or expires (but the Landlord acknowledges that this shall be subject to any sub-tenant statutory rights which any sub-tenant may have entitling the sub-tenant to remain in occupation) (without prejudice to any claims the Landlord may have against the Tenant if such rights arise due to any breach of the Tenant's covenants in this Lease) and the Tenant shall procure that the sub-lessee vacates the premises underlet to it at the expiration or sooner determination of the Term;
(iv) a condition for re-entry on breach of any covenant by the undertenant;
(v) the same restrictions as to alienation, assignment, underletting, parting with or sharing the possession or occupation of the premises underlet; and
(vi) a confirmation of renunciation of statutory renewal rights;
(f) To enforce at the Tenant’s own expense the performance and observance by every such undertenant of the covenants, provisions and conditions of the under-lease and not, at any time, either expressly or by implication, to waive any breach of the same;
(g) Not to agree any reviewed rent with the undertenant or any rent payable on any renewal thereof without the prior written consent of the Landlord such consent not to be unreasonably withheld or delayed but provided always that nothing herein shall prevent the Tenant from complying with any independent determination process provided for in the rent review clauses of the sub-lease;
(h) Not to produce evidence of, refer to or seek to rely upon during any rent review pursuant to Schedule 4 the terms, conditions and/or existence of any under-letting(s) of part or all of the Demised Premises created by the Tenant including but not limited to the rent payable under any such under-letting(s);
(i) Not to vary the terms of any permitted under-lease without the prior written consent of the Landlord not to be unreasonably withheld or delayed.
(j) For the avoidance of doubt, in the case of an assignment, underletting, parting with possession or occupation of the Demised Premises or any part thereof or sufferance of any person to occupy the Demised Premises or any part thereof as a licensee or concessionaire (an “Alienation”), it shall be reasonable for the Landlord to withhold consent to any such Alienation of the Demised Premises or part thereof where the Alienation would, in the reasonable opinion of the Landlord, have the effect or give rise to a termination of the Landlord’s Option to Tax. PROVIDED ALWAYS THAT it shall not be reasonable for the Landlord to withhold such consent in circumstances where prior to any such proposed Alienation the Tenant pays or procures the payment to the Landlord of:
(i) an amount equal to the amount of any VAT clawback or VAT payment obligations suffered by the Landlord as a result of such Alienation (hereinafter referred to in this Lease as a VAT Adjustment); and
(ii) because the VAT Adjustment payable under sub-clause (i) above is or may be subject to tax in the hands of the Landlord, such further sum (the “Additional Payment”) as will leave the Landlord in at least the same position as if the VAT Adjustment had not been subject to tax and for the purpose of calculating the Additional Payment it shall be assumed, if not otherwise the case, that the VAT Adjustment and the Additional Payment constitute the sole income of the Landlord and that the Landlord has no deductible expenses, losses or allowances for tax purposes for offset or reduction against such income or receipt and the Tenant shall keep the Landlord indemnified in respect of any such VAT Adjustment and Additional Payment. In respect of the above, the Landlord agrees to furnish to the Tenant a calculation of any sums due (the “Statement”) signed by the Landlord’s auditors or tax advisors and such Statement shall (save in the case of manifest error) be final and binding on the parties. All amounts shall be paid in advance to the Landlord prior to issuing consent to any proposed alienationtransfer.
Appears in 1 contract
Sources: Memorandum of Agreement for Sale
Alienation. Not to assign, transfer, underlet, or part with the possession or occupation of the Demised Premises or any part thereof or suffer any person to occupy the Demised Premises or any part thereof as a licensee BUT SO THAT NOTWITHSTANDING the foregoing the Landlord shall not unreasonably withhold or delay its consent to an assignment of the entire of the Demised Premises or an underletting of the entire or part of the Demised Premises to an assignee/underlessee that constitutes an institutionally acceptable covenant and that is of good and sufficient financial standing (and in the case of an assignment, is otherwise Subject to the reasonable satisfaction terms of Clause 20 the Landlord) sufficient to meet its obligations as aforesaid subject always to the following provisions or such of them as may be appropriate, that is to say:
(a) The Tenant shall prior to any such alienation as aforesaid apply to the Landlord and give all reasonable information concerning the proposed transaction and concerning the proposed assignee, under-lessee, licensee or disponee as the Landlord may reasonably require;
(b) The Landlord’s consent (if given) to any such alienation shall be in writing and shall be given in such manner as the Landlord shall decide acting reasonably and the Tenant shall pay the reasonable vouched costs of the Landlord properly incurred in connection with the furnishing of such decision;
(c) In the case of an assignment to a limited liability company which is not an institutionally acceptable covenant and of good and sufficient financial standing to meet its obligations as aforesaid, it shall be deemed reasonable for the Landlord to require that a guarantor or guarantors of financial standing satisfactory to the Landlord (acting reasonably) shall join in such consent as aforesaid as surety or sureties for such Company in order jointly and severally to covenant with the Landlord in the manner described in the guarantee contained in the Schedule 8 (mutatis mutandis);
(d) In the case of an underlease, the Tenant agrees to use reasonable endeavours to ensure that the terms and conditions of any underlease remain confidential as between the Landlord and the Tenant and Seller shall not be disclosed by the Tenant to any third party entitled, without the Landlord's prior written approvalconsent in writing of the Buyer, except as required by Law;
to (ei) In the case assign, transfer or novate, all or any of an underlease, the same their respective rights and benefits under this Agreement; or (ii) make a declaration of trust in respect of or enter into any arrangement under which it agrees to hold in trust for any person all or any of its rights and benefits under this Agreement. The Seller shall be of either entitled, without the entire consent of the Demised Premises or part Buyer, to assign its rights and/or benefits under this Agreement by way of the Demised Premises PROVIDED THAT
(A) The Tenant may sub-let on a floor-by-floor basis subject security to a maximum of four (4) sub-lettings at Finance Party and any one time;
(B) The Tenant may sub-let part only of a floor subject to a cap of two sub-tenants per floor and at a minimum of 50% of the floor area of a particular floor the Landlord acknowledging that the remaining un-let space may be less than 50% of a particular floor and subject further assignment pursuant to the maximum enforcement of four (4) sub-lettings of the Demised Premises referenced in clause 4.20.1(f)(A) above and PROVIDED THAT the Tenant has obtained the necessary Fire Safety Certificate and Disability Access Certificate and any other consents or approvals for the sub-division of any floor; and
(C) such security. The Tenant Buyer shall be entitled to subassign its interest in this Contract to any person as follows: without Seller's consent if the Post-let the entire of the part of the Demised Premises comprising Nos. 4, 5 & 6 Sir ▇▇▇▇ ▇▇▇▇▇▇▇▇’▇ Quay which sub-letting shall not be considered a sub-letting for the purposes of the restrictions set out in clauses 4.20.1(f)(A) and 4.20.1(f)(B) above. and PROVIDED FURTHER that the Tenant has obtained the necessary Fire Safety Certificate and Disability Access Certificate and any other consents Completion Payment outstanding is nil; or approvals for the sub-division of any floor. In the case of such underlease the same shall be made without taking a fine or premium at the then full current open market rent and the under-lessee shall, if required by the Landlord, enter into a direct covenant otherwise with the Landlord to perform and observe all the covenants (other than that for payment of the rents hereby reserved) and conditions herein contained and every such under-lease shall also be subject to the following conditions, that is to say that it shall contain:-
(i) provisions for the review of the rent thereby reserved (which the Tenant hereby covenants to operate and enforce) corresponding except as to terms and dates but in all other respects (mutatis mutandis) with the rent review provisions contained in this Lease;
(ii) a covenant by the undertenant (which the Tenant hereby covenants to use reasonable endeavours to enforce) prohibiting the undertenant from doing or suffering any act or thing upon or in relation to the Demised Premises in breach of, the provisions of this Lease;
(iii) Any such sublease shall absolutely cease and determine if for whatever reason (including forfeiture) this Lease is terminated or expires (but the Landlord acknowledges that this shall be subject to any sub-tenant statutory rights which any sub-tenant may have entitling the sub-tenant to remain in occupation) (without prejudice to any claims the Landlord may have against the Tenant if such rights arise due to any breach of the Tenant's covenants in this Lease) and the Tenant shall procure that the sub-lessee vacates the premises underlet to it at the expiration or sooner determination of the Term;
(iv) a condition for re-entry on breach of any covenant by the undertenant;
(v) the same restrictions as to alienation, assignment, underletting, parting with or sharing the possession or occupation of the premises underlet; and
(vi) a confirmation of renunciation of statutory renewal rights;
(f) To enforce at the Tenant’s own expense the performance and observance by every such undertenant of the covenants, provisions and conditions of the under-lease and not, at any time, either expressly or by implication, to waive any breach of the same;
(g) Not to agree any reviewed rent with the undertenant or any rent payable on any renewal thereof without the prior written consent of the Landlord such consent Seller, not to be unreasonably withheld or delayed but if the proposed assignee is demonstrably capable of fulfilling the Buyer's remaining obligations in this Agreement for the remainder of the Contract Period, provided always that nothing herein shall prevent the Tenant from complying with any independent determination process provided for in proposed assignee undertakes to the rent review clauses Seller (by way of direct undertaking to the Seller on terms acceptable to the Seller, acting reasonably) to implement the Buyer’s obligations under this Agreement or, at the Seller’s request, to take a novation of the sub-lease;
(h) Not Buyer's rights and obligations under this Agreement, in terms of an agreement that is acceptable to produce evidence ofthe Seller, refer to acting reasonably. All costs properly and reasonably incurred by the Seller in terms of this Clause 19.3.2 shall be met by the Buyer. Transfer of Specified Project Site The Seller shall be prohibited from transferring its interest in all or seek to rely upon during any rent review pursuant to Schedule 4 the terms, conditions and/or existence of any under-letting(s) of part or all of the Demised Premises created by the Tenant including but not limited to the rent payable Specified Project Site or assigning its interest under any such under-letting(s);
(i) Not to vary this Agreement in whole or in part, save in compliance with the terms of this Clause 20. The Seller shall be obliged to transfer its interest in this Contract to any permitted under-lease without party (in this Clause 20, "the Assignee"), that is simultaneously acquiring the Seller's interest in all or any part of the Specified Project Site (in this Clause 20, "the Transferred Part") subject to the following provisions: the Seller shall provide the Buyer with not less than 30 Business Days' prior written notice of the proposed transfer (in this Clause 20, "the Assignation"), including details of the Assignee, such period to allow for Parties and the Assignee to complete the remainder of the steps required pursuant to this Clause 20.2; the Assignee shall undertake to the Buyer (by way of direct undertaking to the Buyer on terms acceptable to the Buyer, acting reasonably) to implement the Seller’s obligations under this Contract insofar as relating to the Transferred Part or, at the Buyer’s request, to take a novation of the Seller's rights and obligations under this Agreement insofar as relating to the Transferred Part, in terms of an agreement that is acceptable to the Buyer, acting reasonably; if the Specified Project is a Secured Project then at completion of the Assignation in compliance with the remaining provisions of this Clause 20.2 the Assignee shall provide the Buyer with a Subscribed Standard Security over the Transferred Part, in exchange for delivery by the Buyer of a discharge (or deed of restriction if appropriate), releasing the Transferred Part from the Standard Security in favour of the Buyer; the Seller shall exhibit on or prior to completion of the Assignation a Legal Report brought down to a date as near as practicable to the date of completion which Report will show: no entries adverse to the Seller's interest in the Specified Project Site (or relevant part thereof); where the Seller's interest in the Specified Project Site is registered in the Land Register of Scotland:- the Advance Notice for the Standard Security by the Assignee; and no other Advance Notices the Seller shall exhibit clear searches in the Personal Register against the Assignee brought down to a date as near as practicable to the date of completion of the Assignation showing nothing prejudicial to the ability of the Assignee to validly enter into documentation entered into pursuant to this Clause 20.2; the Seller shall exhibit a search in the Register of Community Interests in Land brought down as near as practicable to the date of completion of the Assignation showing nothing prejudicial to the ability of the Assignee to validly grant the Standard Security to the Buyer; the Seller shall exhibit a letter of consent to the grant of the Standard Security by the Assignee from any party holding (or being simultaneously granted) a standard security affecting the Transferred Part, in a form approved by the Buyer, acting reasonably. If required by the holder of any standard security the Seller will deliver a ranking agreement in respect of each such standard security, validly executed by the Assignee and the holder/grantee of such standard security (such ranking agreement to be in terms to be approved by the Buyer acting reasonably and providing for (a) the holder of such standard security to rank ahead of the Buyer’s Standard Security and (b) an acknowledgement that any power of sale included within such standard security would be exercised subject to and with the benefit of this Agreement), together with signed land registration forms in respect of the interests of the Assignee and the holder of the other standard security respectively; In the event that the Assignee is a company or industrial and provident society, the Seller shall exhibit searches in the Register of Charges and company file of the Assignee (including a search to identify the directors and the secretary of the Assignee as at the date of signing documentation Subscribed pursuant to this Clause 20.2) from the date of its incorporation or the date of inception of the Register (whichever is the later) brought down: as near as practicable to the date of completion of the Assignation; and within 3 months following the date of completion of the Assignation, to a date at least thirty six days after date of completion of the Assignation in both cases disclosing no entry prejudicial to the Assignee's ability to enter into documentation Subscribed by the Assignee pursuant to this Clause 20.2; the Seller shall exhibit a letter of non-crystallisation from the holder of each and every floating charge affecting the Transferred Part, such letter to be in the chargeholder's usual form and to include consent to the Assignee entering into any documentation that it enters into pursuant to this Clause 20.2 that would require the consent of the Landlord chargeholder; The Seller shall be responsible for ensuring that all obligations under the Governing Code that relate to a change in identity of the party that manages the Specified Project are complied with as part of the transfer of the Transferred Part, and that the Buyer is provided with evidence thereof; and All costs properly and reasonably incurred by the Buyer in terms of this Clause 20.2 shall be met by the Seller Change in Control If there is no Change in Control Restriction then the consent of the Seller shall not be required in respect of a Change in Control of the Buyer; If there is a Change in Control Restriction then a Change in Control in the Buyer can take place: without Seller's consent if the Post-Completion Payment outstanding is nil; or otherwise with the consent of the Seller, not to be unreasonably withheld or delayed.
(j) For delayed if the avoidance Buyer following such proposed Change in Control is demonstrably capable of doubt, fulfilling the Buyer's remaining obligations in this Agreement for the case of an assignment, underletting, parting with possession or occupation remainder of the Demised Premises or any part thereof or sufferance Contract Period. All costs properly and reasonably incurred by the Seller in terms of any person to occupy the Demised Premises or any part thereof as a licensee or concessionaire (an “Alienation”), it this Clause 21.2.2 shall be reasonable for the Landlord to withhold consent to any such Alienation of the Demised Premises or part thereof where the Alienation would, in the reasonable opinion of the Landlord, have the effect or give rise to a termination of the Landlord’s Option to Tax. PROVIDED ALWAYS THAT it shall not be reasonable for the Landlord to withhold such consent in circumstances where prior to any such proposed Alienation the Tenant pays or procures the payment to the Landlord of:
(i) an amount equal to the amount of any VAT clawback or VAT payment obligations suffered met by the Landlord Buyer. Further Assurance Each Party shall execute such documents and do such acts and things as a result of such Alienation (hereinafter referred to in this Lease as a VAT Adjustment); and
(ii) because the VAT Adjustment payable under sub-clause (i) above is or other Party may be subject to tax in the hands of the Landlord, such further sum (the “Additional Payment”) as will leave the Landlord in at least the same position as if the VAT Adjustment had not been subject to tax and reasonably require for the purpose of calculating the Additional Payment it shall be assumed, if not otherwise the case, that the VAT Adjustment and the Additional Payment constitute the sole income of the Landlord and that the Landlord has no deductible expenses, losses or allowances for tax purposes for offset or reduction against such income or receipt and the Tenant shall keep the Landlord indemnified in respect of any such VAT Adjustment and Additional Payment. In respect of the above, the Landlord agrees to furnish giving effect to the Tenant a calculation provisions of any sums due (the “Statement”) signed by the Landlord’s auditors or tax advisors and such Statement shall (save in the case of manifest error) be final and binding on the parties. All amounts shall be paid in advance to the Landlord prior to issuing consent to any proposed alienationthis Agreement.
Appears in 1 contract
Alienation. Not to assign, transfer, underlet, or 5.9.1 The Tenant must not hold the Premises on trust for another. The Tenant must not part with the possession or occupation of the Demised Premises or any part thereof of them or suffer any person permit another to occupy the Demised Premises them or any part thereof as of them except pursuant to a licensee BUT SO THAT NOTWITHSTANDING transaction permitted by and effected in accordance with the foregoing provisions of this Lease PROVIDED ALWAYS
5.9.1.1 Not withstanding the Landlord shall not unreasonably withhold or delay its provisions of Clause 5.9.1 the Tenant may without the Landlords consent to an assignment allow a Company which is a member of the entire same group as the Tenant (within the meaning of the Demised Premises 1954 Act Section 42) to occupy or an underletting share occupation of the entire whole or part of the Demised Premises to an assignee/underlessee that constitutes an institutionally acceptable covenant and that is of good and sufficient financial standing (and in the case of an assignment, is otherwise to the reasonable satisfaction for so long as both Company’s remain members of the Landlord) sufficient same group and otherwise then in a manner that transfers or creates a legal estate
5.9.1.2 The Tenant may enter into franchise or concession agreements with other Company’s or individuals authorising such Company’s or individuals to meet its obligations as aforesaid subject always trade from part of the Premises provided that the agent does not create or transfer a legal estate and no relationship of Landlord or Tenant is thereby created and it shall be the Tenants responsibility to remove such person or persons at the end of this Lease and to indemnify the Landlord against any costs arising thereto
5.9.2 The Tenant must not assign, sublet or charge part only of the Premises
5.9.3 Subject to clauses 5.9.4 and 5.9.5 the Tenant must not assign the whole of the Premises without the consent of the Landlord whose consent must not be unreasonably withheld or delayed
5.9.4 If any of the following provisions or such circumstances—which are specified for the purposes of them as may be appropriate, that is to say:
(a) The Tenant shall prior to any such alienation as aforesaid apply to the Landlord and give all reasonable information concerning ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ section 19(1A)—applies either at the proposed transaction and concerning date when application for consent to assign is made to the proposed assigneeLandlord, under-lesseeor after that date, licensee or disponee as but before the Landlord’s consent is given, the Landlord may reasonably require;
(b) The withhold his consent and if, after the Landlord’s consent (if given) to has been given but before the assignment has taken place, any such alienation shall be in writing and shall be given in such manner as circumstances apply, the Landlord shall decide acting reasonably and may revoke his consent, whether his consent is expressly subject to a condition as referred to below or not. The circumstances are:
5.9.4.1 that the rent due from the Tenant shall pay under this Lease has been demanded and remains unpaid
5.9.4.2 that in the Landlord’s reasonable vouched costs of opinion the Landlord properly incurred in connection assignee is not a person who is likely to be able to comply with the furnishing tenants covenants of such decision;this Lease and to continue to be able to comply with them following the assignment
(c) In 5.9.4.3 in the case of an assignment to a limited liability company which is not an institutionally acceptable covenant and of good and sufficient financial standing to meet its obligations as aforesaid, it shall be deemed reasonable for the Landlord to require that a guarantor or guarantors of financial standing satisfactory to the Landlord (acting reasonably) shall join in such consent as aforesaid as surety or sureties for such Company in order jointly and severally to covenant with the Landlord in the manner described in the guarantee contained in the Schedule 8 (mutatis mutandis);
(d) In the case of an underlease, same group as the Tenant agrees to use reasonable endeavours to ensure that within the terms and conditions meaning of any underlease remain confidential as between section 43 of the Landlord and ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ in the Landlord’s reasonable opinion the assignee is a person who is less likely to be able to comply with the tenant covenants of this Lease than the Tenant and shall not be disclosed requesting consent to assign, which likelihood is adjudged by reference in particular to the financial strength of that Tenant to aggregate with that of any third party without the Landlord's prior written approval, except as required by Law;
(e) In the case of an underlease, the same shall be of either the entire guarantor of the Demised Premises or part obligations of that Tenant and the value of any other security for the performance of the Demised Premises PROVIDED THATtenant covenants of this Lease when assessed at the date of grant or—where that Tenant is not the Original Tenant—the date of the assignment of this Lease to that Tenant, or
(A) The Tenant may sub-let on 5.9.4.4 that the assignee or any guarantor for the assignee, other than any guarantor under an authorised guarantee agreement, is a floor-by-floor basis subject to corporation registered—or otherwise resident—in a maximum of four (4) sub-lettings at any one time;
(B) The Tenant may sub-let part only jurisdiction in which the order of a floor subject to a cap of two sub-tenants per floor court obtained in England and at a minimum of 50% Wales will not necessarily be enforced against the assignee or guarantor without any consideration of the floor area merits of a particular floor the case
5.9.5 The Landlord may impose any or all of the following conditions—which are specified for the purposes of section 19(1A) of the Landlord acknowledging that the remaining un-let space may be less than 50% of a particular floor and subject further to the maximum of four (4) sub-lettings of the Demised Premises referenced in clause 4.20.1(f)(A) above and PROVIDED THAT the Tenant has obtained the necessary Fire Safety Certificate and Disability Access Certificate and any other consents or approvals for the sub-division of any floor; and
(C) The Tenant shall be entitled to sub-let the entire of the part of the Demised Premises comprising Nos. 4, 5 & 6 Sir ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇—on giving any consent for an assignment by the Tenant, and any such consent is to be treated as being subject to each of the following
5.9.5.1 a condition that on or before any assignment and before giving occupation to the assignee, the Tenant requesting consent to assign, together with any former tenant who by virtue of section 11 of the Landlord and Tenant (Covenants) ▇▇▇ ▇▇▇▇’▇ Quay which sub-letting shall was not be considered a sub-letting for the purposes released on earlier assignment of this Lease, must enter into an authorised guarantee agreement in favour of the restrictions Landlord in the terms set out in clauses 4.20.1(f)(A) and 4.20.1(f)(B) above. and PROVIDED FURTHER the schedule The Authorised Guarantee Agreement
5.9.5.2 a condition that the Tenant has obtained the necessary Fire Safety Certificate and Disability Access Certificate and any other consents or approvals for the sub-division of any floor. In the case of such underlease the same shall be made without taking a fine or premium at the then full current open market rent and the under-lessee shall, if reasonably so required by the Landlord on an assignment to a limited company, the assignee must ensure that at least one director of the company or some other guarantor or guarantors reasonably acceptable to the Landlord, enter into a direct covenant covenants with the Landlord to perform and observe all in the covenants (other than that for payment form of the rents hereby reserved) and conditions herein guarantor’s covenants contained and every such under-lease shall also be subject in clause 8 with ‘the Assignee’ substituted for ‘the Tenant’.
5.9.5.3 a condition that upon or before any assignment, the Tenant making the request for consent to assign must give to the following conditions, that is to say that it shall contain:-
(i) provisions for the review Landlord a copy of the rent thereby reserved heath and safety file required to be maintained under the Construction (which Design and Management) Regulations 1994 containing full details of all works undertaken to the Tenant hereby covenants to operate and enforce) corresponding except as to terms and dates but in all other respects (mutatis mutandis) with the rent review provisions contained in this Lease;
(ii) a covenant Premises by the undertenant (which Tenant.
5.9.6 The Tenant must not charge the Tenant hereby covenants to use reasonable endeavours to enforce) prohibiting the undertenant from doing or suffering any act or thing upon or in relation to the Demised Premises in breach of, the provisions of this Lease;
(iii) Any such sublease shall absolutely cease and determine if for whatever reason (including forfeiture) this Lease is terminated or expires (but the Landlord acknowledges that this shall be subject to any sub-tenant statutory rights which any sub-tenant may have entitling the sub-tenant to remain in occupation) (without prejudice to any claims the Landlord may have against the Tenant if such rights arise due to any breach whole of the Tenant's covenants in this Lease) and the Tenant shall procure that the sub-lessee vacates the premises underlet to it at the expiration or sooner determination of the Term;
(iv) a condition for re-entry on breach of any covenant by the undertenant;
(v) the same restrictions as to alienation, assignment, underletting, parting with or sharing the possession or occupation of the premises underlet; and
(vi) a confirmation of renunciation of statutory renewal rights;
(f) To enforce at the Tenant’s own expense the performance and observance by every such undertenant of the covenants, provisions and conditions of the under-lease and not, at any time, either expressly or by implication, to waive any breach of the same;
(g) Not to agree any reviewed rent with the undertenant or any rent payable on any renewal thereof Premises without the prior written consent of the Landlord such Landlord, whose consent may not to be unreasonably withheld or delayed but provided always that nothing herein shall prevent delayed
5.9.7 The Tenant must not sublet the Tenant from complying with any independent determination process provided for in the rent review clauses whole of the sub-lease;Premises without the Landlord’s consent which may not be unreasonably withheld or delayed
(h) Not to produce evidence of5.9.8 Every permitted sublease must be granted, refer to without a fine or seek to rely upon during any premium, at a rent review pursuant to Schedule 4 not less than whichever is the terms, conditions and/or existence of any under-letting(s) of part or all greater of the Demised Premises created then open market rent payable in respect of the Premises—to be approved by the Tenant including but not limited to the rent payable under any Landlord (such under-letting(s);
(i) Not to vary the terms of any permitted under-lease without the prior written consent of the Landlord approval not to be unreasonably withheld or delayed.
(j) For before the avoidance of doubtsublease and the Rent, to be payable in advance on the case of an assignment, underletting, parting with possession or occupation of days on which the Demised Premises or any part thereof or sufferance of any person to occupy the Demised Premises or any part thereof as a licensee or concessionaire (an “Alienation”), it shall be reasonable for the Landlord to withhold consent to any such Alienation of the Demised Premises or part thereof where the Alienation would, in the reasonable opinion of the Landlord, have the effect or give rise to a termination of the Landlord’s Option to TaxRent is payable under this Lease. PROVIDED ALWAYS THAT it shall not be reasonable for the Landlord to withhold such consent in circumstances where prior to any such proposed Alienation the Tenant pays or procures the payment to the Landlord of:
(i) an amount equal to the amount of any VAT clawback or VAT payment obligations suffered Every permitted sublease must contain provisions approved by the Landlord as a result -
5.9.8.1 for the upwards only review of such Alienation (hereinafter referred the rent reserved by it, on the same or similar basis to that contained in this Lease as a VAT Adjustment); andLease
(ii) because 5.9.8.2 prohibiting the VAT Adjustment payable under sub-clause (i) above is subtenant from doing or may be subject allowing anything in relation to tax the Premises inconsistent with or in the hands breach of the Landlordprovisions of this Lease
5.9.8.3 for re-entry by the sublandlord in breach of any covenant by the subtenant
5.9.8.4 imposing an absolute prohibition against all dealings with the Premises other than assignment, such further sum (the “Additional Payment”) as will leave the Landlord in at least the same position as if the VAT Adjustment had not been subject to tax and for the purpose of calculating the Additional Payment it shall be assumed, if not otherwise the case, that the VAT Adjustment and the Additional Payment constitute the sole income or subletting of the Landlord and that the Landlord has no deductible expenses, losses or allowances for tax purposes for offset or reduction against such income or receipt and the Tenant shall keep the Landlord indemnified in respect of any such VAT Adjustment and Additional Payment. In respect of the above, the Landlord agrees to furnish to the Tenant a calculation of any sums due (the “Statement”) signed by the Landlord’s auditors or tax advisors and such Statement shall (save in the case of manifest error) be final and binding on the parties. All amounts shall be paid in advance to the Landlord prior to issuing consent to any proposed alienation.whole
Appears in 1 contract
Alienation. (i) Not to assign, transfer, underlet, assign this Lease or part with charge the possession or occupation of the Demised Premises or any part thereof or suffer any person to occupy during the Demised Premises or any part thereof as a licensee BUT SO THAT NOTWITHSTANDING the foregoing the Landlord shall not unreasonably withhold or delay its consent to an assignment of the entire of the Demised Premises or an underletting of the entire or part of the Demised Premises to an assignee/underlessee that constitutes an institutionally acceptable covenant and that is of good and sufficient financial standing (and in the case of an assignment, is otherwise to the reasonable satisfaction of the Landlord) sufficient to meet its obligations as aforesaid subject always to the following provisions or such of them as may be appropriate, that is to say:
(a) The Tenant shall prior to any such alienation as aforesaid apply to the Landlord and give all reasonable information concerning the proposed transaction and concerning the proposed assignee, under-lessee, licensee or disponee as the Landlord may reasonably require;
(b) The Landlord’s consent (if given) to any such alienation shall be in writing and shall be given in such manner as the Landlord shall decide acting reasonably and the Tenant shall pay the reasonable vouched costs of the Landlord properly incurred in connection with the furnishing of such decision;
(c) In the case of an assignment to a limited liability company which is not an institutionally acceptable covenant and of good and sufficient financial standing to meet its obligations as aforesaid, it shall be deemed reasonable for the Landlord to require that a guarantor or guarantors of financial standing satisfactory to the Landlord (acting reasonably) shall join in such consent as aforesaid as surety or sureties for such Company in order jointly and severally to covenant with the Landlord in the manner described in the guarantee contained in the Schedule 8 (mutatis mutandis);
(d) In the case of an underlease, the Tenant agrees to use reasonable endeavours to ensure that the terms and conditions of any underlease remain confidential as between the Landlord and the Tenant and shall not be disclosed by the Tenant to any third party without the Landlord's prior written approval, except as required by Law;
(e) In the case of an underlease, the same shall be of either the entire of the Demised Premises or part of the Demised Premises PROVIDED THAT
(A) The Tenant may sub-let on a floor-by-floor basis subject to a maximum of four (4) sub-lettings at any one time;
(B) The Tenant may sub-let part only of a floor subject to a cap of two sub-tenants per floor and at a minimum of 50% of the floor area of a particular floor the Landlord acknowledging that the remaining un-let space may be less than 50% of a particular floor and subject further to the maximum of four (4) sub-lettings of the Demised Premises referenced in clause 4.20.1(f)(A) above and PROVIDED THAT the Tenant has obtained the necessary Fire Safety Certificate and Disability Access Certificate and any other consents or approvals for the sub-division of any floor; and
(C) The Tenant shall be entitled to sub-let the entire of the part of the Demised Premises comprising Nos. 4, 5 & 6 Sir ▇▇▇▇ ▇▇▇▇▇▇▇▇’▇ Quay which sub-letting shall not be considered a sub-letting for the purposes of the restrictions set out in clauses 4.20.1(f)(A) and 4.20.1(f)(B) above. and PROVIDED FURTHER that the Tenant has obtained the necessary Fire Safety Certificate and Disability Access Certificate and any other consents or approvals for the sub-division of any floor. In the case of such underlease the same shall be made without taking a fine or premium at the then full current open market rent and the under-lessee shall, if required by the Landlord, enter into a direct covenant with the Landlord to perform and observe all the covenants (other than that for payment of the rents hereby reserved) and conditions herein contained and every such under-lease shall also be subject to the following conditions, that is to say that it shall contain:-
(i) provisions for the review of the rent thereby reserved (which the Tenant hereby covenants to operate and enforce) corresponding except as to terms and dates but in all other respects (mutatis mutandis) with the rent review provisions contained in this Lease;
(ii) a covenant by the undertenant (which the Tenant hereby covenants to use reasonable endeavours to enforce) prohibiting the undertenant from doing or suffering any act or thing upon or in relation to the Demised Premises in breach of, the provisions initial Term of this Lease;
(iii) Any such sublease shall absolutely cease and determine if for whatever reason (including forfeiture) this Lease is terminated or expires (but the Landlord acknowledges that this shall be subject to any sub-tenant statutory rights which any sub-tenant may have entitling the sub-tenant to remain in occupation) (without prejudice to any claims the Landlord may have against the Tenant if such rights arise due to any breach of the Tenant's covenants in this Lease) and the Tenant shall procure that the sub-lessee vacates the premises underlet to it at the expiration or sooner determination of the Term;
(iv) a condition for re-entry on breach of any covenant by the undertenant;
(v) the same restrictions as to alienation, assignment, underletting, parting with or sharing the possession or occupation of the premises underlet; and
(vi) a confirmation of renunciation of statutory renewal rights;
(f) To enforce at the Tenant’s own expense the performance and observance by every such undertenant of the covenants, provisions and conditions of the under-lease and not, at any time, either expressly or by implication, to waive any breach of the same;
(g) Not to agree any reviewed rent with the undertenant or any rent payable on any renewal thereof without the prior written consent of the Landlord such Landlord, which consent shall not to be unreasonably withheld or delayed but provided always that nothing herein Tenant shall prevent have no right to assign this Lease if an Event of Default occurs and is continuing. Notwithstanding the forgoing, so long as no Event of Default then exists, Tenant from complying with any independent determination process provided for in shall have the rent review clauses of the sub-lease;
(h) Not right to produce evidence of, refer assign this Lease to or seek to rely upon during any rent review pursuant to Schedule 4 the terms, conditions and/or existence of any under-letting(s) of part or all of the Demised Premises created by the Tenant including but not limited to the rent payable under any such under-letting(s);
a new tenant if (i) Not the proposed new tenant has, immediately following such assignment and giving effect thereto, publicly rated debt of "BB-" or better from Standard & Poor's ("S&P") Corporation or "Ba3" or better from ▇▇▇▇▇'▇ Investor Services, Inc. or, if such prospective tenant does not have rated debt, a net worth calculated in accordance with IAS consistently applied of not less than Two Hundred Million Euros (E200,000,000) (a Person meeting such tests, a "CREDIT ENTITY"), or (ii) the proposed new tenant provides a new guarantee identical in all material respect to vary the terms Guarantee from a guarantor that, immediately following such assignment and giving effect thereto, is a Credit Entity, or (iii) the proposed new tenant is an Affiliate of any permitted under-lease without Tenant provided that such new tenant remains an Affiliate of Tenant for the prior written consent balance of the Landlord not to be unreasonably withheld or delayedTerm.
(j) For the avoidance of doubt, in the case of an assignment, underletting, parting with possession or occupation of the Demised Premises or any part thereof or sufferance of any person to occupy the Demised Premises or any part thereof as a licensee or concessionaire (an “Alienation”), it shall be reasonable for the Landlord to withhold consent to any such Alienation of the Demised Premises or part thereof where the Alienation would, in the reasonable opinion of the Landlord, have the effect or give rise to a termination of the Landlord’s Option to Tax. PROVIDED ALWAYS THAT it shall not be reasonable for the Landlord to withhold such consent in circumstances where prior to any such proposed Alienation the Tenant pays or procures the payment to the Landlord of:
(i) an amount equal to the amount of any VAT clawback or VAT payment obligations suffered by the Landlord as a result of such Alienation (hereinafter referred to in this Lease as a VAT Adjustment); and
(ii) because As a condition precedent to any assignment of this Lease, Tenant shall conclude a tri-party agreement with the VAT Adjustment payable under subproposed assignee and Landlord (who shall be obliged to enter into such agreement with respect to an assignment permitted pursuant to Clause 10.6.1(i) above) at the time of such assignment. Such tri-clause (i) above is or may party agreement shall be subject a written document in recordable form satisfactory to tax in Landlord specifically observing the hands requirements of the a written form as stipulated by Section 550 German Civil Code, and duly executed by Landlord, such further sum Tenant and the proposed assignee (the “Additional Payment”"ASSIGNMENT AGREEMENT") as will leave pursuant to which (x) such assignee -21- <PAGE> expressly assumes all the Landlord obligations of Tenant hereunder, actual or contingent, including obligations of Tenant which may have arisen on or prior to date of such assignment, and (y) if, but only if, the proposed assignee is an Affiliate of Tenant (where the Guarantee given by Guarantor remains in at least effect) or a Credit Entity itself or provides a new guarantee identical in all material respects to the same position as if the VAT Adjustment had not been subject to tax Guarantee from a guarantor that, immediately following such assignment and for the purpose of calculating the Additional Payment it giving effect thereto, is a Credit Entity, Tenant shall be assumed, if not otherwise the case, that the VAT Adjustment and the Additional Payment constitute the sole income of the released from all liabilities under this Lease. No assignment shall impose any additional obligations on Landlord and that the Landlord has no deductible expenses, losses or allowances for tax purposes for offset or reduction against such income or receipt and the Tenant shall keep the Landlord indemnified in respect of any such VAT Adjustment and Additional Payment. In respect of the above, the Landlord agrees to furnish to the Tenant a calculation of any sums due (the “Statement”) signed by the Landlord’s auditors or tax advisors and such Statement shall (save in the case of manifest error) be final and binding on the parties. All amounts shall be paid in advance to the Landlord prior to issuing consent to any proposed alienationunder this Lease.
Appears in 1 contract
Sources: Lease Agreement
Alienation. Not to assign, transfer, mortgage, charge, underlet, or part with the possession or occupation of the Demised Premises or any part thereof or suffer any person to occupy the Demised Premises or any part thereof as a licensee BUT SO THAT NOTWITHSTANDING the foregoing the Landlord shall not unreasonably withhold or delay its consent to an assignment of the entire of the Demised Premises or to an underletting of the entire or part of the Demised Premises to an assignee/assignee or underlessee that constitutes an institutionally acceptable covenant and that is of good and sufficient financial standing (and in the case of an assignment, is otherwise reasonably acceptable to the reasonable satisfaction of the Landlord) sufficient to meet its obligations as aforesaid Landlord subject always to the following provisions or such of them as may be appropriate, that is to say:say:-
(a) 5.20.1 The Tenant shall prior to any such alienation as aforesaid apply to the Landlord and give all reasonable information concerning the proposed transaction and concerning the proposed assignee, under-lessee, licensee lessee or disponee as the Landlord may reasonably require, including without prejudice to the generality of the foregoing, in a case where the proposed assignee, under lessee or disponsee is a limited liability company audited accounts showing net profits of at least three times the rent payable for the three years immediately prior to the year in which the application for consent is made;
(b) 5.20.2 The Landlord’s 's consent (if given) to any such alienation shall be in writing and shall be given in such manner as the Landlord shall decide acting reasonably and the Tenant shall pay the reasonable vouched costs of the Landlord properly incurred in connection with the furnishing of such decisionconsent;
(c) 5.20.3 In the case of an assignment to a limited liability company which is not an institutionally acceptable covenant and of good and sufficient financial standing to meet its obligations as aforesaidcompany, it shall be deemed reasonable for the Landlord to require that a guarantor or guarantors two sureties of financial standing satisfactory to the Landlord (acting reasonably) shall join in such consent as aforesaid as surety or sureties for such Company company in order jointly and severally to covenant with the Landlord in the manner described in and in accordance with such provisions as the guarantee contained in the Schedule 8 (mutatis mutandis)Landlord may deem fit;
(d) 5.20.4 In the case of an underlease, the Tenant agrees to use reasonable endeavours to ensure that the terms and conditions of any underlease remain confidential as between the Landlord and the Tenant and shall not be disclosed by the Tenant to any third party without the Landlord's prior written approval, except as required by Law;
(e) In the case of an underlease, under-lease the same shall be of either the entire of the Demised Premises or part of the Demised Premises PROVIDED THAT
(A) The Tenant may sub-let on a floor-by-floor basis subject to a maximum of four (4) sub-lettings at any one time;
(B) The Tenant may sub-let part only of a floor subject to a cap of two sub-tenants per floor and at a minimum of 50% of the floor area of a particular floor the Landlord acknowledging that the remaining un-let space may be less than 50% of a particular floor and subject further to the maximum of four (4) sub-lettings of the Demised Premises referenced in clause 4.20.1(f)(A) above and PROVIDED THAT the Tenant has obtained the necessary Fire Safety Certificate and Disability Access Certificate and any other consents or approvals for the sub-division of any floor; and
(C) The Tenant shall be entitled to sub-let the entire of the part of the Demised Premises comprising Nos. 4, 5 & 6 Sir ▇▇▇▇ ▇▇▇▇▇▇▇▇’▇ Quay which sub-letting shall not be considered a sub-letting for the purposes of the restrictions set out in clauses 4.20.1(f)(A) and 4.20.1(f)(B) above. and PROVIDED FURTHER that the Tenant has obtained the necessary Fire Safety Certificate and Disability Access Certificate and any other consents or approvals for the sub-division of any floor. In the case of such underlease the same shall be made without taking a fine or premium at the then full current open market rent and the under-lessee shall, if required by the Landlord, enter into a direct covenant with the Landlord to perform and observe all the covenants (other than that for payment of the rents hereby reserved) and conditions herein contained and every such under-lease shall also be subject to the following conditions, that is to say that it shall contain:-
(i) 5.20.4.1 provisions for the review of the rent thereby reserved (which the Tenant hereby covenants to operate and enforce) at the open market rent corresponding except both as to terms and dates but and in all other respects (mutatis mutandis) with the rent review provisions contained in this Lease;
(ii) 5.20.4.2 a covenant by the undertenant (which the Tenant hereby covenants to use reasonable endeavours to enforce) prohibiting the undertenant from doing or suffering any act or thing upon or in relation to the Demised Premises inconsistent with, or in breach of, the provisions of this Lease;
(iii) Any such sublease shall absolutely cease and determine if for whatever reason (including forfeiture) this Lease is terminated or expires (but the Landlord acknowledges that this shall be subject to any sub-tenant statutory rights which any sub-tenant may have entitling the sub-tenant to remain in occupation) (without prejudice to any claims the Landlord may have against the Tenant if such rights arise due to any breach of the Tenant's covenants in this Lease) and the Tenant shall procure that the sub-lessee vacates the premises underlet to it at the expiration or sooner determination of the Term;
(iv) 5.20.4.3 a condition for re-entry on breach of any covenant by the undertenant;
(v) 5.20.4.4 the same restrictions as to alienation, assignment, underletting, parting with or sharing the possession or occupation of the premises underlet; and;
5.20.4.5 Any sub-lease must be granted in such a manner as will not give rise to rights to a renewal of a tenancy or other rights or interests in the Demised Premises or any part thereof as provided for under Part II of the Landlord and Tenant (viAmendment) A▇▇ ▇▇▇▇ and any under-lessee shall be required to provide a confirmation deed of renunciation of statutory renewal rights;such rights on entering into the under lease.
(f) 5.20.5 To enforce at the Tenant’s 's own expense the performance and observance by every such undertenant of the covenants, provisions and conditions of the under-lease and not, at any time, either expressly or by implication, to waive any breach of the same;
(g) 5.20.6 Not to agree any reviewed rent with the undertenant undertennant or any rent payable on any renewal thereof which is less than the open market rent without the prior written consent of the Landlord (such consent not to be unreasonably withheld or delayed but provided always that nothing herein shall prevent withheld) and to notify the Tenant from complying with any independent determination process provided for in Landlord of the reviewed rent agreed within 14 days of every rent review clauses of the sub-leasereferred to in this Clause 5.20.6;
(h) Not to produce evidence of, refer to or seek to rely upon during any rent review pursuant to Schedule 4 the terms, conditions and/or existence of any under-letting(s) of part or all of the Demised Premises created by the Tenant including but not limited to the rent payable under any such under-letting(s);
(i) 5.20.7 Not to vary the terms of any permitted under-lease without the prior written consent of the Landlord Landlord, such consent not to be unreasonably withheld or delayed.
5.20.8 Notwithstanding anything contained in this Lease the Tenant shall be entitled (jwithout requiring the consent of the Landlord) For to share or sub-let the avoidance of doubt, in the case of an assignment, underletting, parting with possession entire or occupation part of the Demised Premises or with any part thereof or sufferance of any person Group Company subject to occupy the Demised Premises or any part thereof as a licensee or concessionaire (an “Alienation”), it shall be reasonable for the Landlord to withhold consent to any such Alienation of the Demised Premises or part thereof where the Alienation would, in the reasonable opinion of the Landlord, have the effect or give rise to a termination of the Landlord’s Option to Taxfollowing:
5.20.8.1. PROVIDED ALWAYS THAT it shall not be reasonable for the Landlord to withhold such consent in circumstances where prior to any such proposed Alienation the Tenant pays or procures the payment written notification being provided to the Landlord of:
(i) an amount equal to the amount of any VAT clawback or VAT payment obligations suffered by the Landlord as a result of such Alienation (hereinafter referred to in this Lease as a VAT Adjustment); and
(ii) because the VAT Adjustment payable under sub-clause (i) above is or may be subject to tax in the hands of the Landlord, such further sum (the “Additional Payment”) as will leave the Landlord in Tenant at least the same position as if the VAT Adjustment had not been subject to tax and for the purpose of calculating the Additional Payment it shall be assumed, if not otherwise the case, that the VAT Adjustment and the Additional Payment constitute the sole income of the Landlord and that the Landlord has no deductible expenses, losses or allowances for tax purposes for offset or reduction against such income or receipt and the Tenant shall keep the Landlord indemnified in respect of any such VAT Adjustment and Additional Payment. In respect of the above, the Landlord agrees to furnish to the Tenant a calculation of any sums due (the “Statement”) signed by the Landlord’s auditors or tax advisors and such Statement shall (save in the case of manifest error) be final and binding on the parties. All amounts shall be paid in advance to the Landlord 14 days prior to issuing consent to occupation by any proposed alienation.Group Company;
Appears in 1 contract
Alienation. Not 3.9.1 not to assign, transfer, underlet, assign underlet or charge part only of the Property;
3.9.2 not to part with the possession or share occupation of the Demised Premises or allow any part thereof or suffer any other person to occupy the Demised Premises whole or any part thereof as of the Property except by way of a licensee BUT SO THAT NOTWITHSTANDING permitted assignment or underletting of the foregoing whole and not to hold the whole or any part of the Property on trust for another;
3.9.3 not to charge the whole of the Property without the prior written consent of the Landlord which shall not be unreasonably withheld or delayed;
3.9.4 not to assign the whole of the Property without the prior written consent of the Landlord which shall not be unreasonably withheld or delayed provided that the Landlord shall not unreasonably withhold or delay its consent to an assignment of the entire of the Demised Premises or an underletting of the entire or part of the Demised Premises to an assignee/underlessee that constitutes an institutionally acceptable covenant and that is of good and sufficient financial standing (and in the case of an assignment, is otherwise to the reasonable satisfaction of the Landlord) sufficient to meet its obligations as aforesaid subject always to the following provisions or such of them as may be appropriate, that is to sayentitled:
(a) The to withhold its consent in any of the circumstances set out in clause 3.9.6;
(b) to impose all or any of the matters set out in clause 3.9.7 as a condition of its consent;
3.9.5 the provisos to clause 3.9.4 shall operate without prejudice to the right of the Landlord to withhold such consent on any other ground or grounds where such withholding of consent would be reasonable or to impose any further condition or conditions upon the grant of consent where the imposition of such condition or conditions would be reasonable;
3.9.6 if any of the following circumstances (which are specified for the purposes of section 19(1A) of the Landlord and Tenant shall prior Act 1927) apply either at the date when application for consent to any such alienation as aforesaid apply assign is made to the Landlord or after that date but before the Landlord’s consent is given the Landlord may withhold its consent and give all if after the Landlord’s consent has been given but before the assignment has taken place any such circumstances apply the Landlord may revoke its consent whether its consent is expressly subject to a condition as referred to in clause 3.9.7 or not. The circumstances are:
(a) where the Basic Rent and any other sum due and demanded from the Tenant under this Lease remains unpaid;
(b) where in the reasonable information concerning opinion of the Landlord the proposed transaction and concerning assignee is not of sufficient financial standing to enable it to comply with the Tenant’s covenants in this Lease;
(c) where the proposed assignee, under-lessee, licensee assignee is a member of the same group of companies (within the meaning of section 42 of the ▇▇▇▇ ▇▇▇) as the person who is the Tenant at the time of the relevant application (or disponee any former tenant who by virtue of section 11 of the 1995 Act has not been released) and in the Landlord’s reasonable opinion the proposed assignee is less likely to be able to comply with the Tenant’s covenants in this Lease than that person;
(d) where the proposed assignee or any guarantor (other than any guarantor under an Authorised Guarantee Agreement) is a corporation registered or otherwise resident in a jurisdiction in which the order of a court obtained in England and Wales will not necessarily be enforced against the proposed assignee or guarantor without any consideration of the merits of the case;
3.9.7 the Landlord may impose any or all of the following conditions which are specified for the purposes of section 19(1A) of the Landlord and ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ on giving any consent to an assignment by the Tenant:
(a) that the Tenant who is to assign this Lease and any former tenant who by virtue of section 11 of the 1995 Act has not been released enters into an Authorised Guarantee Agreement with the Landlord in the form set out in schedule 4 with such modifications as the Landlord may reasonably require;
(b) The Landlord’s consent (if given) that the Basic Rent and any other sums due and demanded within 5 working days prior to any such alienation shall be in writing and shall be given in such manner as the Landlord shall decide acting reasonably and proposed assignment from the Tenant shall pay the reasonable vouched costs under this Lease are paid prior to completion of the Landlord properly incurred in connection with the furnishing of such decisionproposed assignment;
(c) In that the case of an assignment to a limited liability company which is not an institutionally acceptable covenant and of good and sufficient financial standing to meet its obligations as aforesaid, it shall be deemed reasonable for the Landlord to require that a guarantor or guarantors of financial standing satisfactory to the Landlord (acting reasonably) shall join in such consent as aforesaid as surety or sureties for such Company in order jointly and severally to covenant proposed assignee covenants with the Landlord that as from the date of the deed of assignment to it of this Lease until it assigns this Lease with the Landlord’s consent it will pay the rent and observe and perform all the Tenant’s covenants and obligations in the manner described in the guarantee contained in the Schedule 8 (mutatis mutandis)this Lease;
(d) In that if at any time before the case proposed assignment any of an underlease, the Tenant agrees to use reasonable endeavours to ensure that the terms and conditions of any underlease remain confidential as between circumstances specified in clause 3.9.6 apply the Landlord and may revoke the Tenant and shall not be disclosed consent by written notice to the Tenant to any third party without the Landlord's prior written approval, except as required by LawTenant;
(e) In the case execution and delivery to the Landlord prior to the proposed assignment of an underlease, a valid rent deposit deed for such sum as the same shall be Landlord may reasonably determine and in such form as the Landlord may reasonably require together with the payment by way of either the entire cleared funds of the Demised Premises or part of sum specified in the Demised Premises PROVIDED THAT
(A) The Tenant may sub-let on a floor-by-floor basis subject to a maximum of four (4) sub-lettings at any one timesaid rent deposit deed;
(Bf) The Tenant that such persons as the Landlord may sub-let part only reasonably require act as guarantors for the proposed assignee who shall covenant by way of a floor subject indemnity and guarantee (and if more than one jointly and severally) with the Landlord in such terms as the Landlord may reasonably require;
3.9.8 not to a cap of two sub-tenants per floor and at a minimum of 50% underlet the whole of the floor area Property:
(a) without the prior written consent of a particular floor the Landlord acknowledging that the remaining un-let space may which shall not be less than 50% of a particular floor and subject further to the maximum of four (4) sub-lettings of the Demised Premises referenced in clause 4.20.1(f)(A) above and PROVIDED THAT the Tenant has obtained the necessary Fire Safety Certificate and Disability Access Certificate and any other consents unreasonably withheld or approvals for the sub-division of any floordelayed; and
(Cb) The Tenant shall unless the property to be entitled underlet falls wholly within the Property and does not include any property or right over any property which is not demised by this Lease; and
(c) unless the underlease contains a lawful agreement excluding in relation to sub-let the entire tenancy to be created by the underlease the provisions of sections 24 to 28 (inclusive) of the 1954 Act;
3.9.9 upon the grant of any underlease to obtain covenants on the part of the Demised Premises comprising Nos. 4, 5 & 6 Sir ▇▇▇▇ ▇▇▇▇▇▇▇▇’▇ Quay which sub-letting tenant directly with the Landlord in such form as the Landlord shall require that the sub-tenant will:
(a) not assign underlet or charge part only of the underlet premises;
(b) not underlet the whole of the underlet premises nor part with or share possession or occupation of the whole or any part of them nor grant to third parties rights over them otherwise than by a permitted assignment of the whole of the underlet premises;
(c) not assign or charge the whole of the underlet premises without obtaining the previous consent of the Landlord under this Lease which shall not be considered a sub-letting unreasonably withheld or delayed;
(d) observe and perform the Tenant’s covenants and obligations in this Lease (except the covenant to pay Rents) and the covenants on the part of the undertenant in the underlease;
3.9.10 upon the grant of any underlease:
(a) to include provisions for the purposes revision of the restrictions set out in clauses 4.20.1(f)(A) and 4.20.1(f)(B) above. and PROVIDED FURTHER that the Tenant has obtained the necessary Fire Safety Certificate and Disability Access Certificate and any other consents or approvals for the sub-division of any floor. In the case of such underlease the same shall be made without taking a fine or premium at the then full current open market rent and the under-lessee shall, if required reserved by the Landlord, enter into a direct covenant underlease in an upward only direction to correspond in time and effect with the Landlord to perform and observe all the covenants (other than that for payment of the rents hereby reserved) and conditions herein contained and every such under-lease shall also be subject to the following conditions, that is to say that it shall contain:-
(i) provisions for the review of the rent thereby reserved (which the Tenant hereby covenants to operate and enforce) corresponding except as to terms and dates but in all other respects (mutatis mutandis) with the rent review provisions Basic Rent contained in this Lease;
(iib) not to grant give reserve or take a covenant premium or fine;
(c) not to grant an underlease otherwise than at the greater of the Market Rent (as defined in clause 7) as at the date of the underlease the Basic Rent reserved by the undertenant (which the Tenant hereby covenants to use reasonable endeavours to enforce) prohibiting the undertenant from doing or suffering any act or thing upon or in relation to the Demised Premises in breach of, the provisions of this Lease;
(iiid) Any to include provisions not to underlet the whole or any part of the underlet premises;
(e) to include such sublease shall absolutely cease and determine if for whatever reason (including forfeiture) this Lease is terminated or expires (but covenants on the Landlord acknowledges that this shall be subject to any sub-tenant statutory rights which any sub-tenant may have entitling part of the sub-tenant to remain in occupation) (without prejudice to any claims as shall secure the Landlord may have against due performance and observance of the covenants on the part of the Tenant if such rights arise due to any breach of the Tenant's covenants contained in this Lease) and the Tenant shall procure that the sub-lessee vacates the premises underlet to it at the expiration or sooner determination of the Term;
(ivf) to include a condition for re-entry on breach of any covenant by the undertenant;
(v) the same restrictions as to alienation, assignment, underletting, parting with or sharing the possession or occupation of the premises underlet; and
(vi) a confirmation of renunciation of statutory renewal rights;
(f) To enforce at the Tenant’s own expense the performance and observance by every such undertenant of the covenants, provisions and conditions of the undersub-lease and not, at any time, either expressly or by implication, to waive any breach of the sametenant;
(g) Not to agree any reviewed rent with obtain the undertenant or any rent payable on any renewal thereof without the prior written consent approval of the Landlord to the form of the underlease such consent approval not to be unreasonably withheld or delayed but provided always that nothing herein shall prevent where the provisions of such underlease are consistent with the provisions of this Lease.
3.9.11 notwithstanding clause 3.9.3 and subject to the Tenant from complying with any independent determination process provided for in giving prior written notice to the rent review clauses Landlord of the sub-leaseidentity of the company and of the part of the Property affected (if less than the whole) the Tenant may share occupation of the Property with a company within the same group of companies (within the meaning of section 42 of the ▇▇▇▇ ▇▇▇) as the Tenant:
(a) for so long only as such company shall remain within such group;
(hb) Not to produce evidence of, refer to or seek to rely upon during any rent review pursuant to Schedule 4 the terms, conditions and/or existence of any under-letting(s) of part or all of the Demised Premises created by the Tenant including but on terms whereby such company is not limited to the rent payable under any such under-letting(s);
(i) Not to vary the terms of any permitted under-lease without the prior written consent of the Landlord not to be unreasonably withheld or delayed.
(j) For the avoidance of doubt, in the case of an assignment, underletting, parting with possession or given exclusive occupation of the Demised Premises Property or any part thereof or sufferance and no relationship of any person to occupy the Demised Premises or any part thereof as a licensee or concessionaire (an “Alienation”), it shall be reasonable for the Landlord to withhold consent to any such Alienation of the Demised Premises or part thereof where the Alienation would, in the reasonable opinion of the Landlord, have the effect or give rise to a termination of the Landlord’s Option to Tax. PROVIDED ALWAYS THAT it shall not be reasonable for the Landlord to withhold such consent in circumstances where prior to any such proposed Alienation the Tenant pays or procures the payment to the Landlord of:
(i) an amount equal to the amount of any VAT clawback or VAT payment obligations suffered by the Landlord as a result of such Alienation (hereinafter referred to in this Lease as a VAT Adjustment)landlord and tenant is created; and
(iic) because provided that the VAT Adjustment payable under sub-clause number of companies in occupation of the Property at no time exceeds three;
(id) above is or may be subject to tax in the hands of the Landlord, such further sum (the “Additional Payment”) as will leave Tenant promptly notifying the Landlord in at least the same position as if the VAT Adjustment had not been subject to tax and for the purpose of calculating the Additional Payment it shall be assumed, if not otherwise the case, that the VAT Adjustment and the Additional Payment constitute the sole income writing of the Landlord and that the Landlord has no deductible expenses, losses or allowances for tax purposes for offset or reduction against date upon which such income or receipt and the Tenant shall keep the Landlord indemnified in respect sharing of any such VAT Adjustment and Additional Payment. In respect of the above, the Landlord agrees to furnish to the Tenant a calculation of any sums due (the “Statement”) signed by the Landlord’s auditors or tax advisors and such Statement shall (save in the case of manifest error) be final and binding on the parties. All amounts shall be paid in advance to the Landlord prior to issuing consent to any proposed alienation.occupation ends;
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Alienation. 5.22.1 Not to assign, transfer, underlet, sub-let or part with the possession or occupation of the Demised Premises or any part thereof or suffer any person to occupy the Demised Premises or any part thereof as a licensee BUT SO THAT NOTWITHSTANDING the foregoing the Landlord shall not unreasonably withhold or delay its consent to an assignment of the entire of the Demised Premises or an underletting of the entire whole or part of the Demised Premises to an assignee/underlessee without the previous written consent of the Landlord, which shall not be unreasonably withheld or delayed, provided that constitutes an institutionally acceptable covenant and that is of good and sufficient financial standing (and in the case of an assignmentassignment to a limited liability company, and where the Landlord is otherwise to the reasonable satisfaction reasonably of the opinion that the said Company is not of sufficient financial substance to pay the rent reserved by this Lease and perform and comply with the covenants and conditions in this Lease, the Landlord shall be entitled to require an acceptable guarantor to enter into a direct covenant with it to perform and observe the covenants and conditions of this Lease and within fourteen days of every such assignment or underletting or parting with possession to furnish the Landlord with a true copy of the appropriate deed and to pay the Landlord) sufficient 's Solicitors their reasonable costs in connection with the consent and the approval of such deed and PROVIDED FURTHER that the Tenant shall not be entitled to meet its obligations as aforesaid subject always to make more than four sublettings of the following provisions or such of them as may be appropriate, that is to say:Demised Premises at any one time.
(a) 5.22.2 The Tenant shall prior to any such alienation as aforesaid assignment apply to the Landlord and give all reasonable information concerning the proposed transaction and concerning the proposed assignee, under-lessee, licensee assignee or disponee under Tenant as the Landlord may reasonably require;.
(b) 5.22.3 To pay all reasonable legal costs and surveyors fees incurred by the Landlord attendant upon or incidental to every application made by the Tenant for a consent, approval or licence hereinbefore required or made necessary if granted or proffered subject to any lawful qualifications or conditions or whether the application be withdrawn.
5.22.4 The Landlord’s 's consent (if given) to any such alienation shall be in writing and assignment shall be given in such manner as the Landlord shall decide acting reasonably writing and the Tenant shall pay the reasonable vouched costs of the Landlord properly incurred in connection with the furnishing of such decision;consent.
(c) 5.22.5 In the case of an assignment to a limited liability company which is not an institutionally acceptable covenant and of good and sufficient financial standing to meet its obligations as aforesaid, it shall be deemed reasonable for the Landlord to require that a guarantor or guarantors of financial standing satisfactory to the Landlord (acting reasonably) shall join in such consent as aforesaid as surety or sureties for such Company in order jointly and severally to covenant with the Landlord in the manner described in the guarantee contained in the Schedule 8 (mutatis mutandis);
(d) In the case of an underlease, the Tenant agrees to use reasonable endeavours to ensure that the terms and conditions of any underlease remain confidential as between the Landlord and the Tenant and shall not be disclosed by the Tenant to any third party without the Landlord's prior written approval, except as required by Law;
(e) In the case of an underlease, the under lease same shall be of either at the entire of the Demised Premises or part of the Demised Premises PROVIDED THAT
(A) The Tenant may sub-let on a floor-by-floor basis subject to a maximum of four (4) sub-lettings at then current market rent without any one time;
(B) The Tenant may sub-let part only of a floor subject to a cap of two sub-tenants per floor deduction whatsoever and at a minimum of 50% of the floor area of a particular floor the Landlord acknowledging that the remaining un-let space may be less than 50% of a particular floor and subject further to the maximum of four (4) sub-lettings of the Demised Premises referenced in clause 4.20.1(f)(A) above and PROVIDED THAT the Tenant has obtained the necessary Fire Safety Certificate and Disability Access Certificate and any other consents or approvals for the sub-division of any floor; and
(C) The Tenant shall be entitled to sub-let the entire of the part of the Demised Premises comprising Nos. 4, 5 & 6 Sir ▇▇▇▇ ▇▇▇▇▇▇▇▇’▇ Quay which sub-letting shall not be considered a sub-letting for the purposes of the restrictions set out in clauses 4.20.1(f)(A) and 4.20.1(f)(B) above. and PROVIDED FURTHER that the Tenant has obtained the necessary Fire Safety Certificate and Disability Access Certificate and any other consents or approvals for the sub-division of any floor. In the case of such underlease the same shall be made without taking a fine or premium at the then full current open market rent and the under-lessee shall, undertenant shall if required by the Landlord, Landlord enter into a direct covenant with the Landlord to perform and observe all the covenants (other than that for payment of the rents rent hereby reserved) and conditions herein contained and every such under-lease underlease shall also be subject to the following conditions, conditions that is to say that say, it shall contain:-
(i) provisions for 5.22.6 an unqualified covenant on the review part of the rent undertenant not to underlease or part with or share the possession of the whole or the part of the Demised Premises thereby reserved demised.
5.22.7 a covenant on the part of the undertenant not to assign the Demised Premises thereby demised without obtaining the previous consent in writing of the Superior Landlords under the Landlord's lease (which if any) and of the Tenant hereby Landlord.
5.22.8 covenants and conditions in such similar terms as circumstances admit to operate and enforce) corresponding except as to terms and dates but in all other respects (mutatis mutandis) with the rent review provisions those contained in this Lease;
(ii) a covenant Lease save such alterations as may be appropriate in the case of any sub-lease not exceeding four years and ninE months which may be permitted by the undertenant (which the Tenant hereby covenants to use reasonable endeavours to enforce) prohibiting the undertenant from doing or suffering any act or thing upon or in relation to the Demised Premises in breach of, Landlord under the provisions of this Lease;
(iii) Any such sublease shall absolutely cease and determine if for whatever reason (including forfeiture) this Lease is terminated or expires (but the Landlord acknowledges that this shall be subject to any sub-tenant statutory rights which any sub-tenant may have entitling the sub-tenant to remain in occupation) (without prejudice to any claims the Landlord may have against the Tenant if such rights arise due to any breach of the Tenant's covenants in this Lease) and the Tenant shall procure that the sub-lessee vacates the premises underlet to it at the expiration or sooner determination of the Term;
(iv) a condition for re-entry on breach of any covenant by the undertenant;
(v) the same restrictions as to alienation, assignment, underletting, parting with or sharing the possession or occupation of the premises underlet; and
(vi) a confirmation of renunciation of statutory renewal rights;
(f) To enforce at the Tenant’s own expense the performance and observance by every such undertenant of the covenants, provisions and conditions of the under-lease and not, at any time, either expressly or by implication, to waive any breach of the same;
(g) Not to agree any reviewed rent with the undertenant or any rent payable on any renewal thereof without the prior written consent of the Landlord such consent not to be unreasonably withheld or delayed but provided always that nothing herein shall prevent the Tenant from complying with any independent determination process provided for in the rent review clauses of the sub-lease;
(h) Not to produce evidence of, refer to or seek to rely upon during any rent review pursuant to Schedule 4 the terms, conditions and/or existence of any under-letting(s) of part or all of the Demised Premises created by the Tenant including but not limited to the rent payable under any such under-letting(s);
(i) Not to vary the terms of any permitted under-lease without the prior written consent of the Landlord not to be unreasonably withheld or delayed.
(j) For the avoidance of doubt, in the case of an assignment, underletting, parting with possession or occupation of the Demised Premises or any part thereof or sufferance of any person to occupy the Demised Premises or any part thereof as a licensee or concessionaire (an “Alienation”), it shall be reasonable for the Landlord to withhold consent to any such Alienation of the Demised Premises or part thereof where the Alienation would, in the reasonable opinion of the Landlord, have the effect or give rise to a termination of the Landlord’s Option to Tax. PROVIDED ALWAYS THAT it shall not be reasonable for the Landlord to withhold such consent in circumstances where prior to any such proposed Alienation the Tenant pays or procures the payment to the Landlord of:
(i) an amount equal to the amount of any VAT clawback or VAT payment obligations suffered by the Landlord as a result of such Alienation (hereinafter referred to in this Lease as a VAT Adjustment); and
(ii) because the VAT Adjustment payable under sub-clause (i) above is or may be subject to tax in the hands of the Landlord, such further sum (the “Additional Payment”) as will leave the Landlord in at least the same position as if the VAT Adjustment had not been subject to tax and for the purpose of calculating the Additional Payment it shall be assumed, if not otherwise the case, that the VAT Adjustment and the Additional Payment constitute the sole income of the Landlord and that the Landlord has no deductible expenses, losses or allowances for tax purposes for offset or reduction against such income or receipt and the Tenant shall keep the Landlord indemnified in respect of any such VAT Adjustment and Additional Payment. In respect of the above, the Landlord agrees to furnish to the Tenant a calculation of any sums due (the “Statement”) signed by the Landlord’s auditors or tax advisors and such Statement shall (save in the case of manifest error) be final and binding on the parties. All amounts shall be paid in advance to the Landlord prior to issuing consent to any proposed alienation.
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Alienation. Not 7.1 Until a Deed of Conveyance is executed in favour of the Purchaser, subject to assignClause 13.12, transfer, underlet, the Purchaser shall not be entitled to mortgage or part encumber or assign or alienate or dispose of or deal in any manner whatsoever with the possession said Flat Unit or occupation any portion thereof and/or any right therein and/or under this Memorandum (“Alienation”) unless all the following conditions are complied with:-
a) A minimum period of 1 (one) year has passed from the date of this Memorandum.
b) There is no default whatsoever by the Purchaser in compliance with and/or performance of any of the Demised Premises Purchaser’s covenants, undertakings and obligations under this Memorandum or any part thereof otherwise.
c) The Purchaser has made full payment of the Agreed Consideration, the Additional Payments and Deposits due or suffer any person payable till the time of such Alienation including interest and penalties, if any.
d) The Purchaser or the assignee, nominee, etc. has made payment to occupy the Demised Premises Developer of the transfer charges calculated at such rate as may be decided by the Developer from time to time subject to making payment of a Transfer Fee equivalent to 2% (Two Percent) of the total resale/transfer price (hereinafter referred to as “the Transfer Charges”). The Purchaser shall also pay the applicable Service Tax, if any.
e) Prior consent in writing is obtained from the Developer regarding the proposed Alienation.
f) Provided however that no Transfer Fee shall be payable in case of transfer to the mother or any part thereof father or spouse or child of the Purchaser. It is further clarified that inclusion of a new joint Purchaser or change of a joint Purchaser shall be treated as a licensee BUT SO THAT NOTWITHSTANDING the foregoing the Landlord shall not unreasonably withhold transfer unless such joint Purchaser is a mother or delay its consent to an assignment father or spouse or child of the entire original Purchaser.
g) Any additional income tax liability that may become payable by the Developer and/or the Owner due to nomination, assignment, etc. by the Purchaser because of higher market valuation as per the Registration Authorities on the date of nomination or assignment, etc., shall be compensated by the Purchaser or the nominees, assignees, etc. by paying to the Developer and/or the Owner agreed compensation equivalent to the income tax payable on such difference at the highest applicable tax rate at the prevailing time and any interest and/or penalty in respect thereof. Such amount shall be payable by the Purchaser on or before the nomination.
7.2 After the execution and registration of the Demised Premises or an underletting Deed of Conveyance, the entire or part of Purchaser may alienate the Demised Premises to an assignee/underlessee that constitutes an institutionally acceptable covenant and that is of good and sufficient financial standing (and in the case of an assignment, is otherwise to the reasonable satisfaction of the Landlord) sufficient to meet its obligations as aforesaid said Flat Unit subject always to the following provisions or such of them as may be appropriate, that is to sayconditions:
(a) The Tenant shall prior to any such alienation as aforesaid apply to the Landlord and give all reasonable information concerning the proposed transaction and concerning the proposed assignee, under-lessee, licensee or disponee as the Landlord may reasonably require;
(b) The Landlord’s consent (if given) to any such alienation said Flat Unit shall be in writing and shall be given in such manner as the Landlord shall decide acting reasonably and the Tenant shall pay the reasonable vouched costs of the Landlord properly incurred in connection with the furnishing of such decision;
(c) In the case of an assignment to a limited liability company which is not an institutionally acceptable covenant and of good and sufficient financial standing to meet its obligations as aforesaid, it shall be deemed reasonable for the Landlord to require that a guarantor or guarantors of financial standing satisfactory to the Landlord (acting reasonably) shall join in such consent as aforesaid as surety or sureties for such Company in order jointly and severally to covenant with the Landlord in the manner described in the guarantee contained in the Schedule 8 (mutatis mutandis);
(d) In the case of an underlease, the Tenant agrees to use reasonable endeavours to ensure that the terms and conditions of any underlease remain confidential as between the Landlord and the Tenant one lot and shall not be disclosed by the Tenant to any third party without the Landlord's prior written approval, except as required by Law;
(e) partitioned or dismembered in parts. In the case of an underleasesale in favour of more than one buyer, the same shall be of either the entire done in their favour jointly and in undivided shares.
b) The transfer of the Demised Premises or part of said Flat Unit by the Demised Premises PROVIDED THAT
(A) The Tenant may sub-let on a floor-by-floor basis subject to a maximum of four (4) sub-lettings at any one time;
(B) The Tenant may sub-let part only of a floor subject to a cap of two sub-tenants per floor and at a minimum of 50% of the floor area of a particular floor the Landlord acknowledging that the remaining un-let space may be less than 50% of a particular floor and subject further to the maximum of four (4) sub-lettings of the Demised Premises referenced in clause 4.20.1(f)(A) above and PROVIDED THAT the Tenant has obtained the necessary Fire Safety Certificate and Disability Access Certificate and any other consents or approvals for the sub-division of any floor; and
(C) The Tenant shall be entitled to sub-let the entire of the part of the Demised Premises comprising Nos. 4, 5 & 6 Sir ▇▇▇▇ ▇▇▇▇▇▇▇▇’▇ Quay which sub-letting Purchaser shall not be considered a sub-letting for in any manner inconsistent with this Memorandum and/or the purposes Deed of Conveyance and the restrictions set out in clauses 4.20.1(f)(Acovenants contained herein and/or the Deed of Conveyance shall run with the land and/or transfer. The person(s) and 4.20.1(f)(B) above. and PROVIDED FURTHER that to whom the Tenant has obtained Purchaser may transfer/alienate the necessary Fire Safety Certificate and Disability Access Certificate and any other consents or approvals for the sub-division of any floor. In the case of such underlease said Flat Unit shall be bound by the same shall be made without taking a fine or premium at terms, conditions, agreements, covenants, stipulations, undertakings and obligations as are applicable to the then Purchaser by law and/or by virtue of this Memorandum and/or the Deed of Conveyance.
c) All the dues including outstanding amounts, interest, Maintenance Charges, electricity charges, municipal and other taxes etc. relating to the said Flat Unit payable to the Maintenance Agency, the Municipality and other concerned persons/entities are paid by the Purchaser in full current open market rent and prior to the under-lessee shallproposed transfer/alienation. Such dues, if required by the Landlordany, enter into a direct covenant shall in any event, run with the Landlord to perform and observe all the covenants (other than that for payment of the rents hereby reserved) and conditions herein contained and every such under-lease shall also be subject to the following conditions, that is to say that it shall contain:-
(i) provisions for the review of the rent thereby reserved (which the Tenant hereby covenants to operate and enforce) corresponding except as to terms and dates but in all other respects (mutatis mutandis) with the rent review provisions contained in this Lease;
(ii) a covenant by the undertenant (which the Tenant hereby covenants to use reasonable endeavours to enforce) prohibiting the undertenant from doing or suffering any act or thing upon or in relation to the Demised Premises in breach of, the provisions of this Lease;
(iii) Any such sublease shall absolutely cease and determine if for whatever reason (including forfeiture) this Lease is terminated or expires (but the Landlord acknowledges that this shall be subject to any sub-tenant statutory rights which any sub-tenant may have entitling the sub-tenant to remain in occupation) (without prejudice to any claims the Landlord may have against the Tenant if such rights arise due to any breach of the Tenant's covenants in this Lease) and the Tenant shall procure that the sub-lessee vacates the premises underlet to it at the expiration or sooner determination of the Term;
(iv) a condition for re-entry on breach of any covenant by the undertenant;
(v) the same restrictions as to alienation, assignment, underletting, parting with or sharing the possession or occupation of the premises underlet; and
(vi) a confirmation of renunciation of statutory renewal rights;
(f) To enforce at the Tenant’s own expense the performance and observance by every such undertenant of the covenants, provisions and conditions of the under-lease and not, at any time, either expressly or by implication, to waive any breach of the same;
(g) Not to agree any reviewed rent with the undertenant or any rent payable on any renewal thereof without the prior written consent of the Landlord such consent not to be unreasonably withheld or delayed but provided always that nothing herein shall prevent the Tenant from complying with any independent determination process provided for in the rent review clauses of the sub-lease;
(h) Not to produce evidence of, refer to or seek to rely upon during any rent review pursuant to Schedule 4 the terms, conditions and/or existence of any under-letting(s) of part or all of the Demised Premises created by the Tenant including but not limited to the rent payable under any such under-letting(s);
(i) Not to vary the terms of any permitted under-lease without the prior written consent of the Landlord not to be unreasonably withheld or delayed.
(j) For the avoidance of doubt, in the case of an assignment, underletting, parting with possession or occupation of the Demised Premises or any part thereof or sufferance of any person to occupy the Demised Premises or any part thereof as a licensee or concessionaire (an “Alienation”), it shall be reasonable for the Landlord to withhold consent to any such Alienation of the Demised Premises or part thereof where the Alienation would, in the reasonable opinion of the Landlord, have the effect or give rise to a termination of the Landlord’s Option to Tax. PROVIDED ALWAYS THAT it shall not be reasonable for the Landlord to withhold such consent in circumstances where prior to any such proposed Alienation the Tenant pays or procures the payment to the Landlord of:
(i) an amount equal to the amount of any VAT clawback or VAT payment obligations suffered by the Landlord as a result of such Alienation (hereinafter referred to in this Lease as a VAT Adjustment); and
(ii) because the VAT Adjustment payable under sub-clause (i) above is or may be subject to tax in the hands of the Landlord, such further sum (the “Additional Payment”) as will leave the Landlord in at least the same position as if the VAT Adjustment had not been subject to tax and for the purpose of calculating the Additional Payment it shall be assumed, if not otherwise the case, that the VAT Adjustment and the Additional Payment constitute the sole income of the Landlord and that the Landlord has no deductible expenses, losses or allowances for tax purposes for offset or reduction against such income or receipt and the Tenant shall keep the Landlord indemnified in respect of any such VAT Adjustment and Additional Payment. In respect of the above, the Landlord agrees to furnish to the Tenant a calculation of any sums due (the “Statement”) signed by the Landlord’s auditors or tax advisors and such Statement shall (save in the case of manifest error) be final and binding on the parties. All amounts shall be paid in advance to the Landlord prior to issuing consent to any proposed alienationtransfer.
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Sources: Sale Agreement